STEPANOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1995] NSWCA 454

STEPANOVIC v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY JA 7 March 1995, 29 March 1995

[1995] NSWCA 454

DAMAGES — trespass — to the person — compensatory damages — aggravated damages — exemplary damages — plaintiff disbelieved — discount of 45% for contingencies — held: Allowance for duration of aggravation of back condition inadequate — discount excessive — damages recalculated.

DAMAGES — exemplary — aggravated — quantification of — deliberate act in causing motor cyclist to fall — allowances of $10,000.00 (aggravated) and $15,000.00 (exemplary) upheld.

DAMAGES — motor vehicle accident — deliberate wrongdoing — motor cycle driver recovers damages for trespass to the person — trial judge disbelieves his evidence — accepts previous existence of back disability — enters judgment in favour of plaintiff for $86,629.00 — appeal against inadequacy of judgment — whether appellate court entitled, in the face of credibility findings, to substitute its opinion for that of the trial judge — whether error shown in components of the damages judgment — held: (1) The Court of Appeal was bound to accept the credibility findings made by the primary judge; (2) However, in the determination of the duration of the consequences of aggravation of an established pre-existing back condition, the Court of Appeal was in the same position as the primary judge in making an informed estimate upon the basis of objective evidence; (3) In the objective evidence, the allowance by the primary judge of six months aggravation was inadequate and an allowance of two years should be made; (4) The refusal of the primary judge to allow as compensable an operation conducted more than two years after the accident should be sustained; (5) Consequent recalculation of past economic loss and general damages; (6) A discount of 45% for contingencies was excessive. Todorovic and Anor v Waller (1981) 150 CLR 402, applied; (7) The Court of Appeal should recalculate damages and substitute an amended judgment which should include interest on past economic loss.