BLUETT v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1995] NSWCA 50

BLUETT v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and SHELLER JJA 9 June 1995, 9 June 1995 [1995] NSWCA 50

MOTOR VEHICLE ACCIDENT — QUANTUM — NO QUESTION OF PRINCIPLE Motor vehicle accident — quantum — no question of principle — no grounds for overturning the trial judge's awards.

ORDER Appeal dismissed with costs.

Handley JA This is an appeal by a plaintiff from an assessment of damages by McLachlan DCJ in a reserved judgment delivered on 26 May 1994.

The plaintiff, while driving a motor cycle on 1 May 1987 was injured in a collision with a motor vehicle driven by a person insured by the respondent. Liability was compromised at the trial on the basis of an apportionment of twenty per cent responsibility against the plaintiff for his contributory negligence. The trial judge awarded the plaintiff $15,000 for general damages and $10,000 for economic loss, but the total of $25,000 was reduced because of the plaintiff's contributory negligence, resulting in judgment for $20,000.

The trial judge made findings adverse to the plaintiffs credit in a number of significant respects and Mr Boyd, who has appeared in this Court for the plaintiff but who did not appear at the trial, understandably but inevitably, accepted that he was not in a position to challenge those credit findings.

The trial judge said that he couldn't accept evidence from the plaintiff as to his injuries, disabilities and his losses unless there was some appropriate corroboration.

Mr Boyd has endeavoured to find in the materials before the Court, particularly the medical reports, matters which corroborate the plaintiff's complaints of pain and disability resulting from the accident. Unfortunately for the plaintiff this was not an easy task.

The initial challenge to the judge's award was directed to the amount allowed for general damages. Here Mr Boyd relied principally upon the problems that the plaintiff said he had with his ankles, particularly his left ankle, following this injury. The Court was taken to a number of medical reports from doctors qualified on behalf of the plaintiff in support of this submission. Unfortunately, the Court has the common problem that no doctor gave oral evidence before the trial judge and the credit findings necessarily devalue any history contained in the medical reports and any complaints and symptoms except those of a wholly objective nature. The Court was taken to reports by Dr Seaton of 9 August 1990, 30 November 1990 and 3 June 1993.