NP COOPER v GOVERNMENT INSURANCE OFFICE OF NSW [1995] NSWCA 95

NP COOPER v GOVERNMENT INSURANCE OFFICE OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, POWELL and COLE JJA 7 February 1995, 7 February 1995

[1995] NSWCA 95 Clarke JA I will ask Mr Justice Cole to give the first judgment.

Cole JA His Honour Judge Garling awarded the plaintiff the sum of $102,352 by way of damages resulting from an accident suffered by the appellant in a motor vehicle which occurred on 7 November 1985. In the accident the plaintiff was thrown forward and then back.

The plaintiff was born on 2 May 1941. She had engaged in various occupations until 1981 when she had opened what was known as Marshall's Country Store which sold country style clothing, including some made by the plaintiff. The store had not been successful in that whilst it made a profit of approximately $31,000 in 1983, it suffered a loss of some $23,000 in 1984 and a loss of almost $10,000 in 1985. The store was sold some time prior to the accident, the appellant intending to establish a business in her home of designing and making country and western clothing.

Prior to the accident the plaintiff had a defective right eye which had been the subject of some operations to which I will shortly come. Following the accident the plaintiff had pain in her lower back, the left leg, the right arm and some stiffness and soreness. She had some pre-existing conditions of that nature but they were aggravated by the accident. She suffered, as a result of the accident, pain in her arms and up her neck.

A couple of days after the accident the plaintiff noticed a shadow in her right eye. She consulted an ophthalmologist, Dr Stern, on 14 November 1985. The doctor believed the problem related to a contact lens she was wearing and refitted it and subsequently changed cleaning methods.

On 27 March 1986, that is some four and one half months after the accident, she suffered a detached retina to the right eye. She was in Lightning Ridge when the condition of her eye deteriorated and she returned to Sydney to see Dr Stern who, in turn, referred her to Dr Shanahan, a retinal surgeon. She was admitted to the Metropolitan Eye Hospital where surgery was carried out on her right eye. Following that operation the appellant has no vision in her right eye, retaining only a vague perception of light.