Helen Yiannakopoulos v Mark Wayne Howell [1991] ACTSC 13 (28 February 1991)

SUPREME COURT OF THE ACT

HELEN YIANNAKOPOULOS v. MARK WAYNE HOWELL
S.C. No. 716 of 1988
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Damages - Personal Injury - Motor Vehicle Accident - Whiplash Injury to Neck and Back - Dancing Teacher - Continuing Discomfort - No Issue of Principle

HEARING

CANBERRA
28:2:1991

Counsel for the Plaintiff: Mr R Mildren

Solicitors for the Plaintiff: Messrs Vandenberg Reid Pappas and

MacDonald

Counsel for the Defendant: Mr Hartigan

Solicitors for the Defendant: Messrs Crossin Power Haslem

ORDER

The entry of final judgment be deferred until further order.

DECISION

This is the assessment of damages for personal injuries received by the plaintiff in a motor vehicle accident on 27 April 1987.

2. The plaintiff is a young woman born in 1969. She started dancing at the age of about eight. By the time she was attending College in year 11 she had already been teaching dancing for some years.

3. There was a suggestion that she had received treatment for her back in her early teens, but there is no evidence that at the time of the accident she was other than fit, and capable of engaging in the strenuous physical activities of classical and jazz ballet and tap dancing.

4. On 27 April 1987 she was driving her father's Mercedes Benz car, and stopped in order to make a right hand turn into the driveway of a house to allow a friend to alight at her home. A Holden Utility, for the driving of which the defendant is responsible, collided with the rear of the stationary vehicle. The impact was severe enough to collapse the boot of the Mercedes and push it forward some distance.

5. The plaintiff was wearing a seat belt. She was thrown forward and then back. She did not collide with any part of the car, and did not lose consciousness.

6. An ambulance was called for the driver of the utility, but the plaintiff did not go to the hospital. She waited with the damaged car until her father arrived. He drove her home.

7. She was shocked and upset. Her neck was very sore and the muscles tensed. It was difficult for her to lie down.

8. The accident happened on the first day of the school holidays. Two days later she consulted Dr Howe,the family's general practitioner. His examination revealed tenderness of the cervical ligaments and trapezii muscles of the neck. X-rays were normal. Dr Howe diagnosed ligamentous and muscular strain, and prescribed physiotherapy. She was not then complaining of back pain.

9. She attended physiotherapy on about eight occasions, until 15 May. Dr Howe reviewed her on 7 May 1987.

10. She went back to school at the end of the holidays. Her neck was still sore, and she was feeling pain in her lower back and suffering from headaches. She found it necessary to move around from time to time to relieve headaches and pains. The physiotherapy gave only temporary relief.

11. For the rest of that year, and during year 12 at school, she continued to suffer discomfort. She consulted a chiropractor for some relief.

12. She completed her secondary studies satisfactorily and then enrolled for a fashion course at TAFE. She continued in the course for only two weeks, partly because of the strain on her neck muscles, but in my opinion more because she was by then actively engaged in dancing, and in teaching dancing, activities which made great demands upon her time. Later that year she also began a secretarial course, but discontinued it for much the same reasons.

13. She has now developed a business of teaching dancing. She is to some extent restricted in the movements that she performs in the course of the teaching. However, it is clear that she has the skills and personality required, as the business appears to be expanding. She has found it convenient to employ assistance, especially with children's classes, but I think that might well have been required by expansion in the business in any event.

14. In March 1988 her solicitors arranged for her to be examined by Drs Keiller and Andrews.

15. Dr Keiller's opinion was that she had sustained soft tissue injuries to her neck, thoraco lumbar spine and possibly lower lumbal level in the accident. Progress had been satisfactory and prognosis was good.

16. Dr Andrews found that physical examination revealed some tenderness in the upper cervical spine across the trapezius muscles. The problems in the lumbar spine had resolved. The injuries to the neck were muscular and ligamentous, and expected to settle down in the longer term.

17. In March 1989 Dr Keiller found she had some low backache after prolonged standing and sitting. She had a full range of neck movement, but discomfort at the extremes of the normal range. There was discomfort in the backs of both upper shoulders. Her level of activity could be expected to give more discomfort than a less active person would have.

18. In July 1990 Dr Keiller found that her symptoms had become intermittent, but at about the same level as the previous year. He commented that she was fit to continue as a ballet teacher, at the price of some discomfort from time to time. At about the same time Dr Andrews described the symptoms as fairly mild, ligamentous in nature, and expected to resolve over time.

19. She was examined during 1989 by Dr Vanderfield and Professor Jones on behalf of the defendant. Their findings are much to the same effect as those of Dr Andrews and Dr Keiller.

20. It is true that, despite her injury, her fitness and agility are greater than normal even for a fit lady of her age, but the comparison that must be made is with her own fitness had she not been injured.

21. She still sees a chiropractor occasionally. I am persuaded that she does so because of the results of the accident, not of her activities, but I would treat the cost of any future treatment as part of her general damages, rather than attempt to make any exact calculation.

22. She suffered soft tissue injuries to her back and neck, which left severe symptoms for a month or so, and which have gradually subsided. She still has some discomfort. She should continue to improve. She may have intermittent discomfort for some years to come. She is not prevented from engaging in any activities to any significant extent.

23. For her pain and suffering I award the sum of $22,000.00. Since the action was argued, the High Court had delivered judgment in MBP(SA) Pty. Limited v Gogic (26 February 1991) unreported.

24. In awards of interest I have until now attempted to apply at least my understanding of the principles and considerations set out by Gibbs J. in Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1 at 21.

25. The High Court has now found that reasoning of Gibbs J. to have been fallacious, and has upheld the reasoning of King C.J. in Wheeler v Page (1982) 31 SASR 1 at 6 at 7.

26. The High Court expressly approved the use of a rate of 4 per cent in respect of non pecuniary loss, on the basis that it "is somewhat arbitrary. But it represents the judgment of the Supreme Court of South Australia as to what is fair and reasonable conmpensation for a plaintiff in that State for being deprived of the use of his or her money after taking into account that, from time to time, the real rate of interest will rise above or fall below that figure."

27. I can not perceive any relevant distinction between South Australia and the Australian Capital Territory.

28. Unless persuaded to the contrary I would allow for interest a figure calculated at a rate of 4 per cent upon the whole of the award for general damages from the date of the accident to the date of judgment, which is $3,383.57.

29. However, since counsel have not had the opportunity to consider the effect of the High Court's decision, especially as it concerns this action, I propose to publish these reasons to afford counsel an opportunity to argue the matter should they wish to do so.

30. Some out-of-pocket expenses were agreed at $764.70. A further claim for $240.00 for physiotherapy was not really challenged, and I allow it. The claim for $328.00 for osteopathic treatment was challenged, but I have accepted that it was related to the injury, and allow it.

31. There has been no loss of income in the past, and I am satisfied her income earning capacity has not been adversely affected for the future.

32. Subject to what I have said about interest, the total award would therefore be made up as follows:

General Damages $22,000.00
Interest $ 3,383.57
Agreed out-of-pocket expenses $ 764.70
Physiotherapy $ 240.00
Chiropractic $ 328.00
Total $26,716.27

I defer directing the entry of final judgment until further order.