JOSEVSKA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1996] NSWCA 282

JOSEVSKA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and POWELL JA 26 March 1996

[1996] NSWCA 282

Handley JA. This is an appeal by the plaintiff from judgment for the defendant entered by his Honour Judge Walsh on 11 September 1991 in a motor vehicle accident case.

The question in dispute at the trial was whether the plaintiff had suffered appreciable damage as a result of the accident. She was a back seat passenger in a motor vehicle being driven by her husband on 26 October 1984 when proceeding south along Brook Street, Naremburn, it collided with the rear of the vehicle in front. His Honour found that the vehicle in front was struck with considerable force and this caused the plaintiff to clench her arms and hold them out against the seat of the driver. She must have also put her feet forward to cushion the blow and her feet went through the cloth covering of the seat in front of her. She was wearing a seat belt at the time andundoubtedly this cushioned the effect of the impact on her. The trial judge noted that there was appreciable damage to both vehicles.

As it happens the plaintiff at the time was on her way to see Dr Evans for medico legal purposes in connection with a worker's compensation claim that she had arising out of an injury at work, an injury to her right arm. Dr Evans had been retained on behalf of the worker's compensation insurer.

Not long after the accident the plaintiff presented for the consultation with Dr Evans and did not mention to him that she had been involved shortly before in the accident. Her first complaint attributable to the motor vehicle accident disclosed in the evidence was to Dr Verma three days later. Dr Verma's report of 14 April 1987 is in evidence and she noted that the plaintiff presented complaining of pain in the upper abdomen, headache and dizziness following the accident. The doctor said that she could not find any external injuries or any other abnormalities and she prescribed sedative and pain killing tablets. Dr Verma's clinical notes are in evidence and they disclose a further consultation on 4 December 1984 in which she noted 'anxiety state, cannot sleep' and prescribed Serepax. The next recorded visit to that doctor was on 19 November the following year when she recorded 'insomnia and nervousness after the road traffic accident' the previous year and that she had anxiety and was nervous. The rest of the notes appear to be indecipherable. Dr Verma's report indicates that the plaintiff was having insomnia on later visits. On 29 April 1986 she referred her to Dr Novotny because there had been no improvement in her condition. She was last seen by Dr Verma on 22 May 1986 when all the complaints were there and she was also having pain in both feet and was very shaky. Further medication was prescribed.