EYLES v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1997] NSWCA 105

EYLES vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and POWELL JJA 11 April 1997, 7 May 1997 [1997] NSWCA 105

Negligence — two accidents occurring within two months — liability of plaintiff/appellant — award of damages

FACTS

The Appellant appeals two verdicts, of $42,564 and $17,608 for accidents only a few months apart. The second verdict reflected a finding of 65% liability against the appellant, coupled with his reluctance to seek medical advice about his injuries in this second accident. Further, the medical evidence accepted by his Honour in respect of the injuries allegedly sustained, was that damage was a probable result of degenerative changes within the appellant.

HELD

(1) In respect of the finding of 65% liability against the appellant in the second accident, a trial judge's apportionment of liability cannot be disturbed except in extra-ordinary circumstances, and the facts of this case support the trial judge's finding.

(2) The basis upon which his Honour allowed for the gradual effects of congenital cervical spondylosis were reasonable.

Priestley JA The substantial grounds of appeal are described in the reasons of Meagher JA where the facts are also set out.

I do not think the appellant's arguments can overcome the conclusions which the trial judge in my opinion reasonably arrived at on the basis of facts he found which there is no basis for this court disturbing. Although this leaves the appellant with a judgment for a sum much less that he probably expected, I agree with Meagher JA that the appeal is one which the court must dismiss, with costs.

Meagher JA Smart J, in hearing two cases brought by the appellant(plaintiff), against the Government Insurance Office (respondent/defendant), awarded him two verdicts, $42,564 and $17,608. This appeal related to both matters, but particularly to the second matter, when it has been strenuously submitted that the verdict is far too slight. In the former case, the accident in question occurred on 1 August 1985; in the latter case, the date of the accident was 28 December 1985. In the former case, liability was admitted; in the latter case, it was warmly contested. Accordingly, it is only in respect of the second action that it is necessary to examine the facts relating to the actual accident.