MALEY v MILNE and ANOR [1994] NSWCA 193

MALEY v MILNE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and MEAGHER JJA 10 October 1994, 10 October 1994

[1994] NSWCA 193

DAMAGES, EVIDENCE OF, ACCEPTANCE BY TRIAL JUDGE.

FACTS:

Plaintiff injured in a motor vehicle accident appealed findings of trial judge as to alleged exaggeration of evidence.

HELD:

(1) Findings of trial judge not sustainable and due to factual problems re-assessment of award of damages not possible.

Meagher JA This is an appeal by a disappointed plaintiff, Mrs Maley, from a judgment and verdict in her favour of about $16,000 obtained in a trial before Sinclair DCJ. She suffered injury to her right hand by which date of the trial continued into mild disability. In addition she claimed she suffered from a personality change of some consequence. This led to many disabilities to cope with which required voluntary services. Cooking is an example. She claimed that she was unable to do the normal business of cooking and, therefore, her husband had to do it for her. In effect, there is no physical reason why she should not do the cooking herself but she, because of her functional disabilities, imagined that she could not do so.

She described all these matters in her evidence in chief and his Honour accepted her though found she was exaggerating. In finding exaggeration his Honour made no suggestion that she was deliberately departing from the truth.

Her husband also gave evidence describing her personality change and the subjective disabilities she suffered. His evidence in almost all matters was precisely the same as the evidence given by her. The Judge accepted him entirely without, I might note, any suggestion there was any exaggeration.

Part of his evidence was that he provided over twenty hours service per week to look after his wife who was suffering from disabilities which arose after the accident. The psychiatric expert, Dr Jolly, called on her behalf opined there was such a personality change which in technical jargon I think he called a reactive depression. He said the accident itself had caused over-reaction to the accident and that her functional beliefs that she had multiple disabilities were themselves caused by the accident. His evidence was accepted in full by his Honour.