TREVOR HARDY v ARTHUR HANMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, POWELL and COLE JJA 8 December 1995 [1995] NSWCA 192 DAMAGES — no question of principle. Cole JA Ex tempore The appellant was the negligent driver of a motor vehicle which struck the rear of a stationary vehicle of which the respondent was the driver. The accident occurred on 11 December 1991. Liability was admitted in the respondent's claim for damages. Judge Downs on 23 June 1995 entered judgment for the respondent in the sum of $9,250. That sum was the balance after deducting the statutory deduction of $18,500, and $27,750 being the amount attributable to the trial judge's finding that the extent of impairment suffered by the respondent said to be in accordance with s.79 of the Motor Accidents Act was 12.5%. In addition out-of-pocket expenses of $7,478.45 were allowed by the trial judge but were deducted as they had been paid by the appellant. The appellant has raised a number of grounds of appeal. I shall deal with each separately. The first is that the trial judge erred finding against the weight of the evidence that the plaintiff suffered an injury in a motor vehicle accident on 7 December 1991. The appellant's contention is that the complaints of the respondent were either those occasioned by a pre-existing back condition, or alternatively were those caused by him lifting a bucket. The trial judge found that the respondent suffered an aggravation of the cervical spine in the motor accident. There was an abundance of evidence before him to permit that finding, namely the evidence of the respondent, the respondent's wife, Dr Shean, Dr Isaacs, Dr Bookallil and Dr Christie. In my opinion it clearly was an available finding open to his Honour, and should not be disturbed by this Court. Grounds 2 and 4 seek to have this Court uphold the appeal on the basis of an incorrect test under s.79 of the Motor Accidents Act; the grounds must fail, for they seek to have us uphold a finding which would not accord with the appropriate provision of the Act applicable to this accident. Leave to amend those grounds was sought but was denied. In those circumstances in my opinion those grounds fail. Ground 3 asserts that the trial judge failed to take into account the appellant's medical evidence that the respondent suffered a chronic degenerative condition of the cervical spine. That is precisely the finding which the trial judge made. In any event the evidence of the defendant's doctors, at least that of Dr Bode!, makes clear his view that the respondent did suffer from a chronic degenerative condition of the cervical spine, which was aggravated by the motor vehicle accident. Taking into account that evidence it would not affect in any way the trial judge's finding. 2 UNREPORTED JUDGMENTS Ground 5 asserts that the trial judge failed to give reasons for his preference for the medical evidence tendered and relied upon by the respondent over that relied upon by the appellant. For reasons I have just given that ground of appeal does not assist the appellant. The final ground of appeal is that his Honour failed to give reasons for awarding damages for treatment expenses incurred by the plaintiff. That is hardly surprising in circumstances where the treatment expenses had been paid for by the appellant. Particularly is this so in circumstances where, as the correspondence,! makes clear, the appellant's insurer had not only admitted liability but said, "We would be happy for your client to continue to receive the treatment deemed necessary by his medical service providers, the cost of which will be met by MIIMII". In my opinion the appeal should be dismissed with costs. Gleeson CJ I agree. Powell JA I also agree. Gleeson CJ The orders of the court will be as proposed by Cole JA. (Discussion on application for costs.) Appeal dismissed. Counsel for the appellant: Mr AJ Hislop QC with P Mahoney Counsel for the respondent: R E Quickenden Solicitor for the appellant: Armstrongs Solicitor for the respondent: Vandervords 1. Appeal Book, p150 and 152