Liliana Josifoski v Stephen Donald Mobbs [1991] ACTSC 72 (27 September 1991)

SUPREME COURT OF THE ACT

LILIANA JOSIFOSKI v. STEPHEN DONALD MOBBS
S.C. No. 724 of 1984
Assessment of Damages for Personal Injury

COURT

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

CATCHWORDS

Assessment of Damages for Personal Injury - No new question of principle.

HEARING

CANBERRA
27:9:1991

Counsel for the Plaintiff: Mr S. Walmsley

Instructing solicitors: Messrs Gary Robb and Associates

Counsel for the Defendant: Mr P. Neil

Instructing solicitors: Messrs Crossin Power Haslem

ORDER

There be judgment for the plaintiff in the sum of $483,541.77.

DECISION

This is an assessment of damages. It follows from a successful appeal by the plaintiff to the Federal Court of Australia. As a result of that appeal, it was held that the award originally made to the plaintiff for damages for personal injury arising out of a motor vehicle accident which happened on 21 April 1983 be set aside.

2. The Full Court reassessed general damages at $60,000.00. It referred the assessment back to this Court for the purpose of recalculation of out-of-pocket expenses, loss of earning capacity and "appropriate awards of interest".

3. I do not propose to repeat the facts as set out in the judgment of the Full Court.

4. The out-of-pocket expenses to the date of hearing were agreed at $16,583.12. Past economic loss was the subject of a complex calculation summarised in exhibit 5. I accept those calculations based as they were on information supplied by the defendant.

5. The total loss to 18 August 1991 was $121,620.15.

6. Granted that the Full Court considered an award of $60,000.00 appropriate for general damages and having regard to the contents of the medical reports herein (exhibit A) it is clear that the plaintiff's disability, as outlined by the Full Court, will continue.

7. There is no reason to discount the figure for past economic loss. It was suggested that some allowance could be made for the chance that the plaintiff might have lost time by having more children. I consider that possibility too speculative to cause any reduction in that figure.

8. Future economic loss was left open by the Full Court on the basis that there needed to be evidence of the plaintiff's future work intentions. She had in the past taken a break from work when having her children and for some time after. She is, however, now 43 years of age so I do not consider that is a likely factor in the future.

9. The conventional multiplier, applied to the current net earnings of a comparable employee, would produce a net loss of $203,661.99, conventionally discounted by 15%.

10. That assumes a retirement age of 60 years. The plaintiff could have claimed an intention to work to age 65 but she did not. She said she would have worked, good health assumed, to age 60. I accept that as representing her intention but for the injury.

11. However, bearing in mind that the operative disability here is psychiatric, it seems to me that some degree of recovery permitting gainful employment is more likely than would be the case with a physically based injury. The conventional discount should therefore be increased to 30% to reflect this possibility.

12. In rounded figures, I award $168,000.00 for future wage loss.

13. For future medical and other costs, the multiplier is based on the plaintiff's life expectancy. I consider that a similarly enhanced discount should apply.

14. That produces a figure, in round terms, of $53,000.00, plus $4,500.00 for a specific treatment program referred to in the evidence.

15. As to interest on general damages and past economic loss, I take account of the fact that $27,500.00 was paid towards the damages awarded on 11 October 1988. I accept the calculations made by the plaintiff's counsel as to interest on general damages. This results in an award which I round off at $7,680.00.

16. As to past economic loss, I note the credits for compensation and past payments and I accept the calculations made by counsel for the plaintiff of interest thereon.

17. I round off the sum to be awarded at $37,620.00.

18. The sum to be awarded I summarise as follows:-
(i) General damages $60,000.00

(ii) Interest thereon 7,680.00
(iii) Out-of-pocket expenses 16,583.12
(iv) Past economic loss 121,620.15
(v) Interest thereon 37,620.00
(vi) Fox v Wood (agreed) 14,538.50
(vii) Future medical and other
expenses 57,500.00
(viii) Future economic loss 168,000.00
Total $483,541.77

19. Subject, therefore, to any mathematical or similar slip being pointed out to me, I would enter judgment for the plaintiff in the sum of $483,541.77.

20. I will hear the parties as to costs.