MORGAN v WEERD [1996] NSWCA 369

MORGAN v WEERD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, HANDLEY JA and CoLe JA 17 May 1996 [1996] NSWCA 369

MOTOR VEHICLE ACCIDENT — damages — non-economic and future economic loss — no question of principle.

The respondent, then almost 27, suffered a motor vehicle accident on 31 October 1993 and was awarded $105,766.23 by the trial judge. Her evidence was accepted and was supported by medical evidence of a soft tissue injury of the neck and a compression fracture of one or two vertebrae with a prognosis of further deterioration. The appellant challenged as disproportionately high the award of $69,000 for non-economic loss and the $22,500 cushion awarded for future economic loss.

HELD: dismissing the appeal: (1) Disproportion in this case between the awards off non-economic and economic loss did not constitute error; (2) Medical evidence supported both awards and there was no basis for interfering with the trial judge's decision.

Handley JA. This is the defendant's appeal from the assessment by Armitage DCJ of the plaintiffs damages arising from a motor vehicle accident she suffered on 31 October 1993, which, needless to say, fell to be assessed in accordance with the Motor Accidents Act.

The Judge found the verdict in favour of the plaintiff in the sum of $105,766.23. The appellant has challenged the components for non-economic loss and future economic loss. The trial Judge assessed the plaintiff as being 30% of a worse possible case and this resulted in an award of $69,000. He awarded the plaintiff for future economic loss a cushion of $22,500.

The plaintiff was almost 27 at the date of the accident and almost 29 at the date of the trial. The Judge found that she would probably haveworked to age 60 and may have had time off from work with marriage and children. He broadly accepted the plaintiff's evidence, and rejected submissions that she had grossly exaggerated her condition and was malingering, although he did say that she endeavoured to make the very most of her complaints, past and present. The plaintiff complained of headaches, neck ache and back pain which she said she experienced every day. This was not a case in which the plaintiff's complaints of pain depended solely on the evidence of the plaintiff. The trial Judge also accepted the evidence given by Drs Smythe and Hopcroft. Dr Smythe said that the plaintiff had suffered a soft tissue injury of her neck and a compression fracture of the vertebra at T8. He assessed her whole person impairment at 29% and explained in his reports and oral evidence how he arrived at that figure. He thought that her prognosis was not good and that it was possible that her condition would deteriorate as she got older.