ENGLAND v VAN DONK [1997] NSWCA 103

ENGLAND v VAN DONK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, PRIESTLEY and STEIN JJA 14 November 1997, 5 December 1997

[1997] NSWCA 103

Motor Accidents Act 1988 s79 — damages, non-economic loss — accident prior to 26 September 1995 — whether significant impairment by the injury needs to be continuing at date of trial — absence of reasons for preference for expert evidence

The appellant was injured in a motor vehicle accident in March 1993. At the trial date (June 1997) she said that she continued to suffer pain and disability, although some medical evidence suggested that these symptoms should have subsided. The trial judge, although not impugning the credit of the appellant, made no award of damages for non-economic loss on the basis that he was not satisfied that she continued to suffer any symptoms related to the accident after 2 years.

On appeal:

The appellant argued that Matthews v Dean did not correctly interpret s79 Motor Accidents Act 1988 as relates to motor vehicle accidents prior to 26 September 1995, and should not be followed. In any event, the trial judge was not entitled to conclude that she did not suffer significant impairment at the date of trial.

Held (Priestley JA, Stein JA; Powell dissenting)

The trial judge did not give any reasons why he accepted the defendant's expert over the plaintiff's on the issue of non-economic loss. Accordingly, there should be a new trial, except on the issue of future economic loss.

Matthews v Dean (1990) MVR 455 Allen v Chown (1996) 24 MVR 255 Reinhardt v Huan (1996) 24 MVR 58 considered.

Priestley JA I agree with the orders proposed by Stein JA.

The basis of my agreement is the error of law made by the trial judge in not explaining why be preferred the evidence of Dr Fitzsimmons to that of Dr Crimmins. Although the Judge's reasons supply a slight basis for speculating what his train of thought was, I do not feel that basis is sufficient to justify anything more than speculation, and such a basis does not fulfil the accepted requirements.