LAYT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1996] NSWCA 317

LAYT v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and COLE JA 18 June 1996

[1996] NSWCA 317

MOTOR VEHICLE ACCIDENT — liability — challenge to finding — apportionment.

MOTOR VEHICLE ACCIDENT — damages — general damages — future economic loss.

On 3 April 1985 the plaintiff was injured in a motor vehicle accident. The trial judge found that the defendant, coming from the opposite direction, had turned to the right in front of her but that she had indicated an intention to turn right herself which would have made the defendant's actions safe. As a result he found contributory negligence by the plaintiff at 30%. The plaintiff suffered soft tissue injuries resulting in back pain and had to take time off work and undergo physiotherapy. The trial judge found, on the basis of CAT scans, that the more serious injuries to her back were the result of a fall in July 1986. He assessed her damages at $13,460.56 which included $10,000 for general damages. The plaintiff appealed against the findings that she was indicating a turn to the right, and was guilty of contributory negligence and challenged the sufficiency of the general damages, and the failure to award a cushion for future economic loss.

HELD, dismissing the appeal: (1) No incontrovertible facts existed to challenge the finding that the appellant had indicated an intention to turn right nor was it glaringly improbable; (2) Apportionment involves the evaluation and comparison of various factors and this apportionment was not outside the discretionary range of the trial judge; (3) On the findings of the judge only the modest award for general damages was called for, and there was no occasion for an award of future economic loss.

Handley JA. This is a plaintiff's appeal from findings on liability and damages by Downs QC DCJ in the Liverpool District Court.