GOVERNMENT INSURANCE OF NEW SOUTH WALES v HUGHES [1994] NSWCA 111

GOVERNMENT INSURANCE OF NEW SOUTH WALES v HUGHES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA

11 July 1994, 17 August 1994

[1994] NSWCA 111

Damages — quantum — no question of principle.

Damages — quantum -whether evidence supported finding by trial judge that respondent genuinely suffering from conditions of which he complained; — held: it did — no question of principle.

Priestley JA I agree with Clarke JA and wish to add one observation.

A major feature of the appellant's case was a short and sometimes shadowy video of the respondent which the trial judge saw, and which this court saw. The trial judge said it made a substantial impact on him. In the result however, that impact was not sufficient to prevent the judge from accepting that the respondent was not a malingerer. I do not have any difficulty in concluding that this court should not interfere with this basic finding, both for the reasons given by Clarke JA, and, additionally because the actions of the respondent shown in the video did not have any major effect on me. The disjointed snippets in the video showed the respondent doing some things more freely than you would expect from his evidence, but not so inconsistently with the whole of the evidence before the court as to be irreconcilable with it. In my opinion what was shown in the video was by no

means inexplicably inconsistent with the respondent's own account of his problems.

I would dismiss the appeal with costs.

Clarke JA This is an appeal from a judgment of Judge Levine QC (as he then was) given on 28 November 1991 in which he awarded the respondent, who was the plaintiff before him, a verdict in the sum of $334,812.68. The appellant has appealed from this award upon the grounds that his Honour erred in concluding that the respondent was genuinely suffering from the conditions of which he complained.