KOPUZ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1994] NSWCA 169

KOPUZ v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and CLARKE JJA 28 March 1994, 28 March 1994 [1994] NSWCA 169

DAMAGES — inadequacy — judgment of $18,996.00 — general damages $12,000.00 — objective facts and conduct of trial support initial incapacity of at least six months — held: Upon that footing, general damages of $12,000.00 appealably inadequate — credibility important — new trial ordered.

DAMAGES — inadequacy — injured plaintiff recovers judgment of $18,996.00 — no differentiation in general damages of $12,000.00 — proceedings advanced on footing of six months' work incapacity following compensible injury — plaintiff claims that $12,000.00 manifestly inadequate on uncontested facts — contemporaneous medical evidence supports six-month incapacity — trial judge (Viney DCJ) expresses puzzlement as to period of incapacity — no challenge during trial to plaintiff's absence from work for six months, either by judge or defendant's counsel — objective evidence supports incapacity during six month period — held: (1) Having regard to the objective evidence and the conduct of the trial, the general damages allowed were appealably inadequate; (2) The Court of Appeal could not safely reassess having regard to the importance of the credibility of the plaintiff; (3) New trial ordered.

Kirby P Before the Court is an appeal from a judgment entered by Judge Viney in favour of the appellant, Huseyin Kopuz.

The appellant claims he was injured on 27 April 1986 when he was travelling as a passenger in the front seat of a motor vehicle which he claimed was owned and driven by one Mustafa Isaloglu. It was ascertained that the accident happened when that motor vehicle was hit from behind.

A dispute was belatedly raised at the trial by the Government Insurance Office of New South Wales, the respondent, as to whether the appellant was indeed a passenger in the motor vehicle or was the driver. However, Judge Viney found this issue in favour of the appellant whilst observing "I found the circumstances quite suspicious". There was no cross appeal by the respondent against his Honour's finding in this regard, nor could there be, it rested substantially upon the impression which the appellant made upon the learned judge.