HANNA v PETROVSKI [1996] NSWCA 241

HANNA v PETROVSKI

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, CLARKE JA and POWELL JA 3 April 1996

[1996] NSWCA 241

DAMAGES — WHETHER AWARD INADEQUATE ON BASIS OF MEDICAL EVIDENCE — TRIAL JUDGE'S IMPRESSION AND TREATMENT OF PLAINTIFF — SIGNIFICANT FUNCTIONAL OVERLAY

Clarke JA. This is an appeal by a plaintiff from a verdict of Judge McCredie in favour of the plaintiff in the sum of $10,224.

The appellant plaintiff contends that the amount awarded is inadequate. As his counsel has said today, the medical evidence at its best, from the appellant's point of view, would support a greater verdict than his Honour's which allowed only $9,000 for general damages.

The fundamental attack on his Honour's judgment is that his impression or his unfavourable impression of the appellant was unjustified and he failed to make an appropriate allowance for what was, according to the submission, a fairly significant functional overlay suffered by the appellant, and it is necessary in the light of the submissions to pay careful regard to his Honour's judgment.

That commences with an examination of the issue on liability concerning the accident which happened on 1 September 1984. On that date the appellant was travelling as a passenger in a motor vehicle being driven west in Church Street Lidcombe. At the same time a vehicle travelling in the opposite direction lost its hubcap. This event caused the driver of the vehicle in which the appellant wasriding to swerve and hit the kerb and possibly a tree or pole. The judge's actual finding was that the vehicle hit, at least, the gutter.

His Honour, having found in the appellant's favour, then set out the complaints made by the appellant which were drawn, no doubt, from the particulars of disabilities filed pursuant to part 12 rule 4A of The District Court Rules. It is unnecessary to recite again those complaints but I should point out that they include an injury to the neck, left shoulder and left arm and a head injury with associated problems in the right ear. There was of course issue between the parties as to whether the appellant suffered from any of those conditions and, if so, whether they were related to the accident.