ASHWORTH v GOVERNMENT INSURANCE OFFICE OF NSW [1994] NSWCA 7

ASHWORTH v GOVERNMENT INSURANCE OFFICE OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, HANDLEY and POWELL JJA 22 November 1994, 22 November 1994 [1994] NSWCA 7

PERSONAL INJURY — DAMAGES — APPEAL AND NEW TRIAL — minor motor vehicle collision — alleged whiplash injury — pre-existing injury — conflicting medical evidence — results open on evidence were either substantial or only small verdict for appellant — verdict for defendant — reasons for trial judge's decision affected by error — new trial ordered.

DAMAGES — NEW TRIAL The appellant was involved in a very minor motor vehicle collision as a result of which she claimed to have suffered a whiplash injury. The matter was complicated by the fact that she had a pre-existing repetitive strain injury. There was no dispute about the fact that the collision was the fault of the other driver. There was competing medical evidence at the trial. One doctor expressed the opinion that the appellant, as a result of the accident, had suffered a significant and continuing disability. The other doctor expressed the opinion that, as a result of the accident, the appellant had suffered mild soft tissue injury which would have settled down after a few months. On the evidence, therefore, the issue was whether there should be a substantial verdict for the appellant or only a small verdict. In those circumstances the trial judge entered a verdict for the defendant — HELD — the reasoning of the trial judge, who said that he accepted the evidence of the second doctor, was internally inconsistent and effected bv error and there should be a new trial.

ORDERS

1. Appeal allowed.

2. Orders made by McDevitt DCJ set aside. 3. Order for a new trial.

4. The respondent to pay the appellant's costs of the appeal and if entitled to a certificate under the Suitors Fund Act to have one.