BYRNES v SARKISSIAN [1995] NSWCA 66

BYRNES v SARKISSIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and COLE JJA 5 December 1995, 5 December 1995

[1995] NSWCA 66

MOTOR ACCIDENTS ACT s79 — PERSONAL INJURIES — ASSESSMENT OF DAMAGES CREDIBILITY OF WITNESS

MOTOR ACCIDENTS ACT s79 — PERSONAL INJURIES — ASSESSMENT OF DAMAGES — CREDIBILITY OF WITNESS — plaintiff injured in motor vehicle accident — plaintiff tenders psychiatric report stating she suffers from psychiatric disorder — no psychiatric report tendered by defendant — trial judge finds plaintiff is exaggerating her symptoms — considering all relevant factors, trial judge assesses plaintiff's non-economic loss at 18% of a most extreme case.

Defendant appeals arguing 1. no evidence that plaintiff had adjustment disorder at the time of the trial; 2. if there was some evidence, it did not justify trial judge's conclusion. Held: no error by trial judge - on the material the trial judge's conclusions were open to him - where trial judge has reservations about plaintiff's evidence it does not follow that the trial judge must be taken to have disbelieved everything the plaintiff said.

Plaintiff cross-appeals against assessment for economic loss Held: plausible for trial judge to find that adjustment disorder would not affect plaintiff's earning capacity in any material way.

ORDERS

Appeal dismissed with costs; cross-appeal dismissed with costs.

Priestley JA This appeal concerns a judgment in the District Court in the sum of $25,233. It has excited both an appeal and a cross-appeal. It arises from the following circumstances: Mr D Sarkissian was driving to work with his wife, Mrs S Sarkissian, as his passenger, when their vehicle was hit from behind. They both brought actions for damages for personal injury in the District Court. These were heard together by his Honour Judge McLachlan but it is only with Mrs Sarkissian's case that this Court is concerned today. In her case Judge McLachlan held she was entitled to judgment against the defendant and assessed the damages at $25,397. $164 of that amount had already been paid which accounts for the slight difference in the amount of the judgment and the assessment of damage.