Vicky Drakopoulos v the Nominal Defendant [1986] ACTSC 22 (16 April 1986)

SUPREME COURT OF THE ACT

VICKY DRAKOPOULOS v. THE NOMINAL DEFENDANT
S.C. No. 4 of 1984
Assessment of Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Assessment of Damages - Motor vehicle accident - No special matters of principle involved.

HEARING

CANBERRA
16:4:1986

ORDER

There be judgment for the plaintiff in the sum of $55,700.00.

In the event that the plaintiff be compelled or compellable by appropriate legal process commenced under S.140 of the Social Security Act 1947 to repay to the Department of Social Security the sum of $8,886.40 paid to her as unemployment benefits the judgment may stand charged to that extent for such payment to the Department of Social Security in the hands of the defendant. If she be so compelled or compellable the judgment is to be deemed to be satisfied pro tanto in that sum of $8,886.40.

DECISION

This is a claim for damages arising out of an accident which occurred on 20 June 1983. In the evening of that day the plaintiff was driving a motor vehicle in what is said in the Statement of Claim to have been an easterly direction (it was in fact more nearly south-easterly) along Caley Crescent, Narrabundah towards the intersection of that street with Sprent Street. At the same time one Peter Carey was driving his motor vehicle, which was uninsured for the purposes of the Motor Traffic Ordinance 1936, in a general north-easterly direction along Sprent Street. At the intersection he collided with the plaintiff's vehicle, causing her injuries. There was a "Give Way" sign facing him in Sprent Street at the entrance to the intersection. He should therefore have given way to the plaintiff's vehicle. I am satisfied that the injuries which the plaintiff sustained in the accident were due to his negligence.

2. The defendant alleges, however, that the plaintiff was guilty of contributory negligence. Because of a slight amnesia which I am satisfied she suffered, she was unable to give evidence concerning the events immediately preceding the actual collision. There was no evidence concerning its circumstances and cross-examination about them, not surprisingly, proved fruitless. The plaintiff, however, acknowledged that at the time of the accident she was not licensed to drive a motor vehicle in the Australian Capital Territory and this was put as a ground upon which I should find her guilty of contributory negligence. I did not understand counsel for the defendant to have submitted that the mere fact that the plaintiff held no driver's licence constituted evidence of negligence. Such a submission must necessarily have failed. Leask Timber and Hardware Pty. Ltd. v. Thorne [1961] HCA 73; (1961) 106 CLR 33. It was contended, but faintly, that the fact that the plaintiff was unlicensed was evidence from which I might conclude that she was necessarily negligent in her driving. There was no evidence to support the allegation and I reject it. Nor was contributory negligence of any other kind established.

3. Because of the provisions of s.85 of the Motor Traffic Ordinance 1936 there must in the circumstances be judgment for the plaintiff against the defendant, the Nominal Defendant.

4. In cross-examination a good deal of time was taken up on the question of whether the plaintiff was on her way home from her work at the Shoprite Supermarket in the Canberra suburb of Griffith or whether she was returning to her home at Stirling from Melbourne. Because she makes a claim for damages in respect of what may be called for convenience sake a Fox v. Wood ((1981) [1981] HCA 41; 148 CLR 438) component, I must make a finding on the question. I am satisfied on all the evidence that she was on her way home from work when the accident occurred. I was particularly impressed by all the evidence of Mrs Ellis, by the fact that the accident occurred at a place on a convenient route from the plaintiff's then place of employment at Griffith to her home at Stirling and that the group employer's copy of the plaintiff's group certificate tendered in evidence as exhibit K showed her as employed up to the date of the accident.

5. The plaintiff suffered quite severe injuries in the accident. She received a large laceration over the right temple area, several small cuts on the right side of her forehead and a laceration to the right scalp. These were sutured and have healed well. They have left scarring but it is not too obvious and the plaintiff is not much troubled by it. The head injury rendered her unconscious for a time (I am unable to say for how long) and she suffered some minimal degree of pre-accident amnesia and a greater degree of post-accident amnesia. She sustained bruising of the ribs on the left side and an injury causing pain in the right buttock. In addition she sustained a fracture of both the superior and inferior pubic rami on the right side with minimal displacement. I am satisfied that she suffered much pain. I formed the view that she had a low threshhold of pain. This was confirmed to some degree by the comment made by Dr Calder, her treating orthopaedic surgeon, who said of her, "she was very distraught and responding most volubly to pain."

6. She spent some time, I am unable to say exactly how long, in hospital. Her initial treatment and progress were described by Dr Calder as follows:-

"The initial treatment was by bedrest and

subsequent mobilization as her pain abated.

On 29.6.83 she was complaining of some
posterior neck pain but was walking well with
crutches and her wounds were healing
satisfactorily. She was discharged at that
stage to be followed up again in fracture
clinic. On 13.7.83, her progress was
satisfactory and she was to continue to
mobilise on crutches.

7. Reporting on her condition on 11 August 1983 Dr Gibson said, "She sustained a fractured pelvis which required hospitalisation for four weeks and crutches for six weeks." He then certified that she would be unfit for work from 4 August 1983 (that was the day on which he apparently examined her) to 3 September 1983.

8. I am satisfied the plaintiff sustained some injury to her neck in the accident and that it and accompanying headaches became a problem after discharge from hospital. In April 1984 she was complaining of continuing right occipital headache with neck pain and radiation of pain over the right shoulder. She had received physiotherapy for this. The injury was diagnosed as musculo-ligamentous neck strain. By August 1984 she had pain in the neck only very occasionally.

9. I am satisfied that the plaintiff has generally recovered from the injuries to her neck, pelvis and ribs and is left with only a very moderate degree of residual pain and discomfort on occasion.

10. Her principal claim relates to a depression which she says she suffered following the accident. It is important to note that she suffered from migraine headaches before the accident and, indeed, claimed in an application made to the Commonwealth Employment Service that she left her job which she had earlier had with the Department of Health because of severe migraine. She in fact went to Greece for a holiday on leaving that employment.

11. When she was seen by Dr L.R. Quach, general practitioner, on 10 October 1983 he considered that her fractured pelvis and lacerations to the scalp had healed without complications. She was then still complaining of headache, mainly occipital, a stiff neck and muscle spasm in the neck and right shoulder area. He considered her worrying disabilities were her emotional state and personality changes. He described her condition:-

"She suffered concussion in the accident
resulting in amnesia lasting 1 hour,
persistent headache, periodic dizziness,
difficulty in concentration and
forgetfulness. Her emotional and personality
changes are manifested in depression,
tearfulness and (the plaintiff) has changed
from a happy-go-lucky young woman to a very
withdrawn person. She will not go out and
avoid(s) her friends and family."

12. Dr Quach recommended that she should see a psychiatrist but she did not keep the appointment made. Dr Knox, a consultant psychiatrist, believes that her failure to attend for psychiatric examination 1983 was due to the plaintiff's reluctance to admit that she was troubled by "mental illness".

13. I am satisfied that the plaintiff suffered depression which first manifested itself some time after the accident. This I think was due to what is described in the medical evidence as post-concussional syndrome. I formed the view that although she had previously had migraine headache the depression she suffered following the accident interacted with her symptoms so as to increase the severity of the headaches and the headaches increased the depression. In reaching that conclusion I have taken into account particularly the comment made by Dr Robbie, another consultant psychiatrist, who examined the plaintiff on behalf of the defendant and said:-

"I have no reason to doubt that she was
depressed, especially considering other
things in her life. Nor have I any reason
not to conclude that her headaches would have
contributed to her depression, although her
depression most certainly would have
contributed to her headaches I would have
thought as well."

I therefore attribute the depression to the accident. However I am also satisfied that the depression from which she now suffers is much moderated.

14. At the time of her accident the plaintiff was employed as a check-out attendant earning, she said, $200 a week nett after taxation. However, the copy group certificate to which I have referred earlier shows that for the period from 22 October 1982 to 20 June 1983 she earned a total of $4,633.92 from which was deducted $496 tax. The certificate shows, therefore, that her nett earnings for the period were $4,137.92 or an average of approximately $120 per week nett.

15. Sometime early in 1984 the plaintiff gained employment as a waitress in a cafeteria at the Belconnen Mall. While there she earned, she said, $196 or $198 per week after tax. She found after three to four weeks that she could not cope and she gave up the work. In about May 1984 she got work as a check-out operator at the Wanniassa Supermarket. There she was paid $220 per week after tax. Initially she managed but after about two weeks she found that she was again unable to cope. She was becoming dizzy, and found herself unable to stand for a long time and had headaches. Additionally she was getting very depressed. She gave up that work after about two weeks. Then on a date which I find to have been in September 1984 she got a job assisting the accountant at the Waramanga Shoprite Supermarket. She worked there from 9.00 each morning until 2.00 each afternoon and was paid $80 per week gross. She continued in that work until June 1985. She said that at the beginning she worked every day but that then there were times when she had to stop work for one day and continue the next day. It was she said, "on and off again". She said that most of the time she was there she was putting up with headaches and trying to do her best. Again she found herself unable to manage and left that work. She did seek employment as a waitress with a relative in Brisbane some two or three weeks ago but again found herself unable to cope. She said she was getting very exhausted and had to take breaks and felt very frustrated and confused.

16. The plaintiff's credit suffered badly in the witness box. It appeared that she had been overclaiming deliberately in respect of workmen's compensation and Commonwealth Employment benefits. While I do not reject her evidence on that account I approach it with a degree of caution. The result has been that I am not satisfied that the degree of her depression is as great as she alleges. I think that Dr Robbie has assessed her with considerable accuracy in his report. Nevertheless I think it appropriate to allow some short period during which the remains of her depression can be worked out and she can resume her normal life.

17. On the question of damages I think it inappropriate to deal with her economic loss to the point where she began again to work after her accident other than on the basis of the group certificate. If in the result that does her an actual injustice it can only be on the basis that she has adopted or was party to a false return concerning the amount that she was being paid. If it be an accurate record the defendant would suffer unjustly if ordered to pay damages on the basis that her wages were those to which she deposed in evidence.

18. I therefore allow a continuing loss of $120 per week from 21 June 1983 to 31 January 1984. The evidence does not enable me to fix the exact date upon which the plaintiff started to work in the cafeteria at the Belconnen Mall. Doing the best I can, I fix 1 February 1984 as that date. Thereafter until May I allow $196 per week nett as the loss sustained by the plaintiff less, of course, the amount she earned whilst employed at that cafeteria. I see no reason why I should not assess her loss thereafter until she began to work for the Waramanga Shoprite Supermarket at $196 per week less the $220 per week she said she earned whilst employed at the Wanniassa Supermarket. Lacking precise evidence, I fix that commencing date at 1 September 1984. I find that her loss from the date of injury to 31 August 1984 totalled, therefore, $8,597. Again for want of more accurate evidence, I fix the period during which she worked for the Waramanga Shoprite Supermarket at from 1 September 1984 to 30 June 1985 during which, at $80 per week, she would have earned $3,463. I think it reasonable to make some allowance for an increase in wages during this time and accept $200 per week as the amount which but for her fragile, depressive condition she would have been able to earn. I find, therefore, her loss from 1 September 1984 to 30 June 1985 to have been $5,194.00 and from 1 July 1985 to date $8,286.00. For future economic loss, allowing six months for complete recovery from the depressive condition, I fix the sum of $5,000. For economic loss, therefore, I allow a total of $27,077. If I ought to have allowed more because of upward movements in wages during the period under consideration, I think that a proper allowance for contingencies would in any event have reduced the amount to something like the figure which I have found to be the appropriate one. In any event, the plaintiff's evidence did not satisfy me that any more should be allowed.

19. As to the Fox v. Wood component I take the view that not all the amount claimed ought to be paid by the defendant as damages. Had the plaintiff made the workmen's compensation insurer aware, as she ought, that for a good deal of the period in question she was working, the need for payment of tax on compensation would never have arisen and I see no reason why the defendant should carry the burden of something that ought not to have been paid. Again doing the best I can I reduce the amount claimed on account of the Fox v. Wood component to $1,500.

20. Out-of-pocket expenses are agreed at $1,978.21.

21. I think the proper sum to have awarded the plaintiff in respect of her pain and suffering is $21,000.

22. As to interest, I make no allowance in respect of past economic loss. I think the plaintiff has effectively had the whole of her notional damages in this regard in her hands at all relevant times through payment to her of workmen's compensation and social security benefits. For interest on other general damages I allow $4,148.00.

23. The above sums total $55,703.21. I round that sum to $55,700 for which there will be judgment for the plaintiff.