IBRAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1995] NSWCA 202

IBRAHIM v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P and POWELL JA 14 March 1995, 28 March 1995 [1995] NSWCA 202

DAMAGES — inadequacy — out-of-pockets agreed at $1485 and $2255 — judgments entered for $2500 each — references by judge to alleged medical over-servicing not put at trial references to dependence on social security not relevant to claim — held: Appeals upheld retrials ordered.

DAMAGES — motor vehicle claims — husband and wife injured in motor vehicle accident — sue for damages for personal injuries — liability found in their favour — trial judge (Mahoney DCJ) enters small judgments of $2,500 in each case — agreed out-of-pockets are, in case of husband $1,485 and in case of wife $2,255.68 — plaintiffs' appeal against inadequacy of judgments — held: (Powell JA; Kirby P concurring): Appeals allowed. Retrial ordered — references in judge's reasoning to alleged excessive over-servicing by medical practitioners not put to them or raised at trial and references to male plaintiff's dependence on social security which was irrelevant to his claim as advanced at the trial criticised as irrelevant to the assessment of damages.

Kirby P I agree with Powell JA.

Powell JA In each of these matters, the Appellant, who was the Plaintiff in the proceedings at first instance, appealed against the Judgment delivered, and the verdict entered, in favour of the Appellant on 1 May 1992 by Mahoney DCJ. Although the grounds of appeal taken by each Appellant have varied from time to time, the substantial ground of appeal in each case was that the award of damages made in favour of the Appellant by Mahoney DCJ was manifestly inadequate. Although, in the Second Amended Notice of Appeal filed, by leave, on the hearing of these matters, each Appellant, in addition to seeking an order that the Judgment of Mahoney DCJ be set aside, sought an order that this Court reassess damages, it was accepted, during the course of argument on the hearing of these matters, that, as the award of damages made, in each case, by Mahoney DCJ was significantly affected by the view which His Honour took as to the credibility of each of the Appellants, the appropriate order to be made, in the event of the appeals, or either of them, being allowed, was that there by a new trial of the action or the relevant action such new trial being limited as to damages.