MIKIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1994] NSWCA 205

MIKIC vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 12 October 1994, 12 October 1994 [1994] NSWCA 205

DAMAGES — quantum — motor vehicle accident — whether awards for general damages, economic loss, and out-of-pocket expenses inadequate — held: they were not — no question of principle.

DAMAGES — quantum — out-of-pocket expenses — trial Judge awarded less than 80 per cent of amount claimed — whether trial Judge denied procedural fairness — held: assuming there had been a denial of procedural fairness a fuller hearing would not have resulted in a higher award at the trial: Stead v The State Government Insurance Commission (1986) 161 CLR 141 at 147 applied.

Supreme Court Act 1970, s75A. ORDER Appeal dismissed with costs.

Priestley JA In this matter I ask Mr Justice Handley to deliver judgment.

Handley JA This is an appeal from a decision of his Honour Judge Joseph Phelan in the District Court, given on 16 June 1993. The action arises out of a motor vehicle accident which occurred on 25 November 1985.

The trial Judge entered a verdict for $35,236.20 in favour of the plaintiff who has appealed, challenging his Honour's allowances for past and future economic loss, general damages, and for out-of-pockets.

The trial Judge took an extremely unfavourable view of the plaintiff's reliability and honesty as a witness and historian. He found that he had engaged in deceit in order to increase the damages for the injuries he suffered in the motor vehicle accident.

Mr McInnes first attempted to persuade the Court that he could successfully overturn his Honour's credibility based findings consistently with the established authorities in the High Court. In my opinion in this case there were no incontrovertible facts which were inconsistent with his Honour's decision on credit and nor could it be said that his findings were glaringly improbable.