NSW INSURANCE MINISTERIAL CORPORATION (FORMER GIO OF NSW) v BERRY [1995] NSWCA 334

NSW INSURANCE MINISTERIAL CORPORATION (FORMER GIO OF NSW) v BERRY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and COLE JJA 21 March 1995, 21 March 1995 [1995] NSWCA 334

Damages — No question of principle Appeal from Common Law Division — Damages — No question of principle.

Mahoney JA This case arises out of a motor vehicle accident which was suffered by the plaintiff on 10 November 1985. He made a claim for damages and on 11 April 1994 his Honour Mr Justice Blanch gave judgment for the plaintiff for $347,468. The defendant has appealed to this Court against his Honour's judgment.

The judge in a detailed judgment made a number of findings in relation to the main aspects of the plaintiff's injuries. In the circumstances it is not necessary for me to detail the judge's judgment or the matters with which he dealt. The essence of the appeal lies in the judge's finding which he made in the following terms:

"The plaintiff gave evidence and, in spite of some hesitations and vagueness, I am satisfied he was telling the truth."

That finding I think was applicable not merely to the particular matter with which he was there concerned but generally, and it has I think been so treated for the purposes of the present argument. His Honour's judgment proceeded upon the basis that in relation to the matters generally in dispute and subject, of course, to the terms of the judgment that he was satisfied that the plaintiff was telling the truth.

The submissions that were made below on behalf of the plaintiff involved that because substantially of the injury that had been done to his neck in the accident, because of the pain that he suffered from it, he was incapacitated for work to a substantial extent. The judge accepted that finding. In considering, as he described it, the ability of the plaintiff to work he referred to particular matters of detail. Thus, he recorded the detailed efforts he made since his operation in 1992 to find work, and his Honour accepted that he had not been able to find work. As his Honour said, he is over forty, he is seeking unskilled work and he has limitations to his physical capacity. His chances of competing successfully in the labour market are not good. Upon that basis the judge assessed the damages as he did.