GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MEDIC [1994] NSWCA 113

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MEDIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 1 March 1994, 1 March 1994 [1994] NSWCA 113

DAMAGES — credibility of plaintiff — finding cannot be overturned on appeal unless trial judge incontrovertibly incorrect or finding glaringly improper

Sheller JA The Government Insurance Office of New South Wales appeals against a judgment given by his Honour Judge Dent QC on 11 June 1992 in favour of the respondent. The judgment was concerned with two proceedings commenced by the respondent against the GIO in respect of a motor vehicle collision on 28 June 1986 and in respect of a second motor vehicle collision on 1 August 1986. In the proceedings arising out of the earlier accident the respondent succeeded on liability but in the proceedings arising out of the second accident his Honour found the respondent seventy-five percent responsible; thus whether the particular injuries suffered in the first accident were exacerbated in the second became of particular importance.

The respondent claimed to have injured his neck and low back in the first accident. He denied having told his treating doctor, Dr Strinich, that he hurt his neck and low back again in the second accident. Doctor Strinich's contemporaneous handwritten notes and a report made by him on 14 August 1986 suggested that when he saw the respondent on 4 August 1986 he was informed that the respondent had more pain and stiffness in the neck and worse lumbar backache than he had prior to the accident.

Doctor Bannister, to whom the respondent was referred by Dr Strinich, reported on | October 1986. There was no suggestion in his report that the respondent had told him he had hurt his neck and low back again in the second accident. Indeed in the evidence that Dr Bannister gave orally he said that, in his opinion, the respondent's neck and low back problems were due to his involvement in the first accident. This was based in part at least on the history given to him by the respondent.