AYERS v JULIE ANNE STEWART [1995] NSWCA 35

AYERS v STEWART

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and SHELLER JJA 7 March 1995, 7 March 1995

[1995] NSWCA 35 MOTOR ACCIDENTS ACT — non-economic loss — no question of principle

Handley JA This is an appeal by the plaintiff from the assessment of her damages under the Motor Accidents Act by Pain DCJ. She was injured on 28 October 1990 when she was a little over twenty-one. The judge gave judgment in November 1993 when she was twenty-four and a half.

The trial judge awarded $47,213.95. The plaintiff has challenged the award for non-economic loss in the sum of $14,300 representing fifteen per cent of a most extreme case. The other components were not in dispute except for one aspect raised by the respondent in a notice of contention. The appellant submitted that the assessment at the level of fifteen per cent was wholly disproportionate to a correct view of her injuries and that this court should intervene and allows a higher percentage resulting in a higher monetary award.

The trial judge made no adverse finding against the plaintiff's credit contenting himself with saying that she did not appear to be of stoic disposition. I cannot read this as a finding adverse to the plaintiff reflecting on her credibility and accuracy. Rather, I read it as indicating that she did not hold back in her evidence about her complaints and symptoms. Had his Honour taken the view that the plaintiff was exaggerating I would have expected him to have said so. Moreover she was not cross-examined to establish that she had exaggerated her symptoms or given false evidence about them.

His Honour found that in the three years since the accident she had been affected in her ability to walk and to sit for any length of time without discomfort. Her injuries had also affected her ability to drive long distances. A number of her complaints immediately after the accident fortunately had disappeared. She recovered from both the tinnitus and the migraines.