BRAITHWAITE (by her tutor Peter Braithwaite) v FLYNN [1995] NSWCA 57

BRAITHWAITE (by her tutor Peter Braithwaite) vy FLYNN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY and PRIESTLEY JJA 6 December 1995, 6 December 1995

[1995] NSWCA 57

Motor vehicle accident — Whether s79 of the Motor Accidents Act satisfied — Held not satisfied

Appeal from District Court — Motor vehicle accident — Whether s79 of the Motor Accidents Act satisfied — Held: Not satisfied — Appeal dismissed with costs.

Mahoney JA This is an appeal against a judgment of his Honour Judge McDevitt given on 30 April 1993 in which he held that the plaintiff had not established that she had brought herself, if one may put the matter shortly, within s79 of the Motor Accidents Act and that accordingly no award for non-economic loss should be made. He gave a verdict for the defendant.

There was no claim in the proceeding for economic loss.

There is not any significant contest as to the basic facts. The plaintiff, who was an infant of about ten years, was on 24 January 1990 walking or pushing her bicycle across a pedestrian crossing. She was struck by the defendant's motor vehicle. The result of the incident was that she had some minor abrasions and the like to her legs, her elbow and so on. They have significantly cleared without sequelae and nothing turns upon them. She was given no treatment in hospital and, as the judge said, in four days she resumed her ordinary routine. (I am not purporting to detail all of the

facts or the evidence. They are referred to in the judge's judgment and have been dealt with in proper detail by Mr Cummins QC in his address on behalf of the appellant. I shall go only to the substantial matters that have been relied upon in the appeal).

It has been submitted that, in finding as he did that s79 was not satisfied, that is that the plaintiffs ability to lead a normal life was not significantly impaired by the injuries, his Honour was wrong in this respect. It was submitted that the judge failed to take into account or take into account properly the fact of her enuresis, that is bed-wetting, as a result of the accident, an anxiety neurosis condition resulting from the accident relating to her riding of a bike and nightmares which she suffered but which have now gone away.