MELO v NOMINAL DEFENDANT [1995] NSWCA 290

MELO v NOMINAL DEFENDANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and COLE JJA 6 December 1995, 6 December 1995

[1995] NSWCA 290

DAMAGES — no question of principle.

Cole JA The appellant was involved in a motor vehicle accident on 17 September 1988. She sued for injuries suffered and liability was found in her favour. Spender AJ on 11 July 1995 awarded her damages of $26,298 comprising $25,900 for non-economic loss and $398 for out of pocket expenses being half the cost of treatment at the Sydney Pain Management Clinic. The $25,900 non-economic loss equates to 20% of the statutory maximum under s79 Motor Accidents Act.

The appellant seeks a new trial. Six grounds of appeal were advanced by an amended notice of appeal. The first five relate to the trial judge's rejection of the appellant's credibility. This rejection was contended to be based upon the trial judge's finding of:

(a) an alleged inconsistency between her complaints of agoraphobia and evidence that from time to time she had wandered out to Bondi Beach and spent the night lying on the beach;

(b) an alleged inconsistency between evidence that from time to time the appellant had wandered onto to Bondi Beach and evidence "which she gave that she couldn't even walk";

(c) an alleged inconsistency between the evidence given by the appellant concerning the housework she was able to do and the history which she gave when admitted to St John of God Hospital (about) engaging in obsessive cleaning activities at home;

(d) an alleged inconsistency between what the appellant said about limitation of her driving activities and a history given by her at the St John of God Hospital of driving fast on occasions; and

(e) an alleged inconsistency between what she had told Dr Kenna on 6 January 1988, eight months before the accident, namely, that her marriage had recently failed and that there had been a marriage breakup, and what she had said in evidence, namely, that she and her husband were still living together before the accident.