CACU v RAHMATI [1997] NSWCA 57

CACU v RAHMATI SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

MASON P and PRIESTLEY JA 12 May 1997

[1997] NSWCA 57

Damages — personal injury — MVA — challenge to finding by trial judge that appellant did not satisfy statutory threshold — assessment of credibility by trial judge — Motor Accidents Act 1988

Mason P. The appellant sued for damages arising out of a motor vehicle accident that occurred on 4 June 1993. She was a passenger in a car that was hit from behind and she suffered a whiplash type injury. Liability was not in issue. What was in issue primarily was whether the level of injury suffered by the appellant was sufficient to overcome the threshold for damages for non-economic loss imposed by s 79(1B) of the Motor Accidents Act 1988, that being the numbering of the section at that stage.

The appellant had worked as a process worker and suffered a work related injury in the nature of a repetitive strain injury in 1986. This resulted in a compensation claim which was resolved in 1989. That claim was based upon what was accepted to be some level of continuing disability and it was this fact that added a complicating factor to the factual and medical assessment relating to the appellant's injury suffered in June of 1993.

Craigie DCJ decided that the appellant did not satisfy the threshold required by s 79(1B). He had no difficulty with the six month continuous period but held in the ultimate that the appellant's ability to lead a normal life had not been significantly impaired for the relevant period.

The case as presented by the appellant at trial relied primarily upon the appellant's evidence and in particular her description of the pain following the accident and in the years between the accident and the trial; and secondly, evidence of the extent of the impairment of her capacity to conduct domestic work, by that I mean non paid work at her own home; and thirdly, upon the extent and level of medication that the appellant was taking, and on her evidence taking in an endeavour to treat continuing pain flowing from the accident. As I said the matter had the complication of the pre-existing injury.