BOTTEN v WELLINGS [1997] NSWCA 163

BOTTEN v WELLINGS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and COLE JJA 14 October 1997, 14 October 1997 [1997] NSWCA 163

MOTOR vehicle accident — clear evidence to support the trial judge's findings challenged in the appeal — no basis for interfering with those findings — the trial judge's awards of damages to the plaintiff for injuries suffered were not excessive.

Cole JA Nash DCJ, in a judgment delivered 9 April 1997 on a claim by the respondent for damages arising from a motor vehicle accident in which liability was not in dispute, made the following critical findings:

1. His Honour accepted the report of Dr Girgis dated 14 October 1996 in which the doctor said:

"1. I believe the most probable diagnosis is that of injury to the facet joints at LS5-S1 level which progressed to cause advanced arthritic or referred pain down the legs (I would add much more the left leg than the right). The prognosis is not good. She is now dependent on strong pain killing tablets such as Endone, as well as Pethidine injections occasionally. At this stage I cannot recommend any treatment. However she could perhaps be referred to a pain clinic.

2. I believe that the vehicle accident in June 1992 was 80 per cent responsible for her current symptoms and disabilities.

3. Her work capacity after the accident in June 1992 is grossly limited. She cannot sit or stand for long and is probably fit for very light duties only, as long as she is permitted to change her position. I am not optimistic about her chances of returning to the work force.

4. I believe her symptoms are significantly affecting her life physically and also causing her psychogenic problems. There is little doubt that her symptoms are significantly affecting her capacity for any physical activity.

5. I do not believe surgery is the answer.