MICHELSON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1995] NSWCA 291

MICHELSON v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and POWELL JJA 27 June 1995, 24 August 1995 [1995] NSWCA 291

NEGLIGENCE — MOTOR VEHICLE ACCIDENT — FINDINGS OF FACT — NO QUESTION OF PRINCIPLE.

The plaintiff was injured in a motor accident in 1986. She returned to work within four days, staying at work with some breaks till 1990. As late as 1989 she was playing tennis and squash regularly. In the meantime she married, was expecting a child and had taken seven overseas holidays. Following the accident her general practitioner diagnosed mild concussion, a cervical spinal whiplash and bruised knees. Because of continuing complaints of headaches she was referred to a specialist, who advised physiotherapy and medication, stating that her symptoms should subside with time and that "she should be able to manage her general activities quite well". In 1992 her solicitors listed nine injuries and thirty continuing disabilities. With the exception of her bruxing (teeth grinding) her continuing post accident symptoms lacked objectively demonstrable support. The judge found that she consciously exaggerated much of her evidence, which was inconsistent with the evidence of two teachers at her school, her employment records, and the histories given to doctors. He rejected the bulk of the plaintiff's case. The plaintiff sought a new trial, claiming errors in the judgment and ostensible bias by the judge.

Held: There was no substance to the claim of ostensible bias, and any errors in the reasons of the trial judge were immaterial and not such as to cause any substantial wrong or miscarriage within SCR Pt51 R16(1)(d).

ORDER

Appeal dismissed with costs.

Meagher JA I agree with Handley JA.

Handley JA This is an appeal by a plaintiff from a judgment of Mahoney DCJ assessing her damages at $24,202.56. The plaintiff while in her stationary vehicle was injured as a result of a rear end collision on 19 October 1986. She was thirty eight at the time, a teacher, and single. She was able to return to work within four days and remained at work with some time lost and with breaks for holidays until taking maternity leave in February 1990. As late as January 1989 she told Dr Frith that she was currently playing squash once a fortnight and tennis weekly (228). In the meantime she had taken seven overseas holidays, including one from 24 December 1986 to 16 April 1987 which included travel to Japan, Africa and the United States, married, had abortions because of suspected genetic problems in the foetus, and was expecting the child that she had in April 1990.