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. In dealing with the plaintiff's claims for voluntary services to cope with her strongly held beliefs, his Honour said as follows: "Tn the present case, while I have no hesitation in accepting the evidence of Mr Maley, I am not satisfied that the majority of the services rendered by the plaintiffs husband are reasonably necessary to meet the needs of the plaintiff as a result of her relatively minor physical injury to her right wrist and I am certainly not satisfied that such services he does provide to assist her in the domestic routine of the household amount to as much as 6 hours per week. Accordingly, this head of damages claimed is rejected. By such finding I have not excluded the 2 UNREPORTED JUDGMENTS problems the plaintiff has and does experience in the future in relation to her right wrist insofar as it affects her domestic duties being taken into account in the assessment of general damages." In view of his Honour's primary findings and of his total acceptance of the husband and Dr Jolly, it is not easy to understand what his Honour meant by these remarks. In making them his Honour must have been referring to the plaintiffs actual objective physical needs and not to her subjective functional needs. It is difficult to see on what basis he could have accepted the evidence of Dr Milder. This direction is supported by his Honour's approving citation of this Court's unhappy decision in Kovac v Kovac (1983) 1 NSWLR 656, which must now, of course, be abandoned. In these circumstances I am of the view that his Honour's judgment cannot be sustained. In view of the multiple factual problems which remain, I do not think this Court is in a position to substitute any other verdict. In these circumstances I propose the following orders be made: 1. Appeal allowed. 2. Judgment and verdict below set aside. 3. New trial on all issues. 4. That the respondent pay the appellant's costs of these proceedings, costs of the first trial abide the costs of the second trial. Priestley JA I agree. This is a case in which if the Court had been able to re-assess itself it would have done so but it seems to be peculiarly a case where this Court cannot justify re-assessment itself in the absence of seeing the plaintiff herself and being able to form some estimate of the plaintiff as she appears at trial. I therefore agree with the orders proposed by Meagher JA with the amendments that have been discussed just now, the principal one being to ensure what is being ordered is a new trial limited to damages. The parties are agreed the five per cent contributory negligence finding made below is to stand and will be applicable to the assessment of damages made on the further hearing. So far as the respondent may be entitled and falls within the qualifications for a receipt of a Suitors Fund certificate, the Cow-t will grant a certificate under the Suitors Fund Act. (1) Appeal allowed. (2) Judgment and verdict below set aside. (3) New trial on all issues. (4) Respondent to pay the appellants costs of these proceedings, costs the first trial to abide the costs of the second trial. Counsel for the Appellant: A S Morrison SC Solicitor for the Appellant: Laurence & Laurence Counsel for the Respondent: M Elkaim Solicitor for the Respondent: GIO General Ltd