Dimitrios Hronopoulos v Sherman Jerome Reid [1994] ACTSC 119 (30 November 1994)

SUPREME COURT OF THE ACT

DIMITRIOS HRONOPOULOS v. SHERMAN JEROME REID
No. SCA32 of 1994
Number of pages - 3
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Damages - motor vehicle accident - whiplash type injury - appeal - assessment of general damages - assessment of lost earning capacity.

HEARING

CANBERRA, 25 October 1994
30:11:1994

Counsel for the appellant: Mr R Mildren

Instructing solicitors: Vandenberg Reid

Counsel for the respondent: Ms A Godtschalk

Instructing solicitors: Australian Government Solicitor

ORDER

The Court orders that

1. The appeal be upheld.
2. The judgment be varied to $46,857.90 plus interest.

DECISION

HIGGINS J This is a an appeal by the plaintiff from a decision of Magistrate Ward given on 31 March 1994.

2. The plaintiff had claimed damages for personal injury suffered in a motor vehicle accident on 2 July 1992. The defendant's vehicle ran into the back of the plaintiff's vehicle. The plaintiff suffered a whiplash type of injury as a result. Liability was not in issue.

3. His Worship, having seen and heard the plaintiff, accepted him as a witness of truth who was neither exaggerating nor minimising the effect of the injury upon him.

4. The plaintiff complained that, following the accident he suffered headaches which went away after a few weeks. His major disability, however, was that he experienced pain when undertaking his duties as a gardener and a cleaner.

5. He had two jobs at the time. One was with the European Commission as a part-time gardener. The other was with the Hawker Supermarket as a part-time cleaner. After the accident, following two weeks off, he continued work, with members of his family performing the heavier physical labour under his direction. The job with the Commission ended after about a year. He was offered a gardening job at the Embassy of the Netherlands but felt unable to take it on due to his physical disabilities.

6. The plaintiff was 61 years old at the date of the accident. He had wished to continue work for as long as he was able.

7. His Worship was critical of the state of the evidence. It was such as, in his view, forced him to:

..."have a stab" at what might have happened, had it not been
for the accident, and to a lesser extent, what happened after
the accident.

8. The plaintiff was awarded $31,707.90 plus interest.

9. The appeal seeks to raise two criticisms of this award. First, that the sum awarded for general damages is inadequate. Second, that his Worship erred in allowing only $21,000.00 for lost earning capacity.

10. The first issue is very much a matter of impression. However, there was no issue as to credit, nor was it suggested the plaintiff was exaggerating his disabilities. Even if the injury involved aggravation of a pre-existing defect at the C5/6 level as Mr Keiller, a medico/legal consultant, suggests in his report, there still remains indefinitely the "minor discomfort" with "possible brief flares from time to time of more acute pain associated with changes in the weather and injudicious or extra hard activity". In his report of 3 December 1993, Mr Keiller reported the disabilities were continuing and, whilst not preventing general activity, did preclude heavier work.

11. Mr Keiller's opinion was:

At the age of sixty-two it is unlikely now that there will be
further improvement to the degree where he could return to his
pre-accident level. However he would be fit for light gardening
duties or work in a more sheltered environment, should such
employment be available.

12. In my view, a proper award of general damages would be $20,000.00 of which half would be attributable to the past. That reflects the chance that some other cause might have rendered the neck symptomatic in any event. It follows that his Worship's award of general damages was, regrettably inadequate.

13. The award for lost earning capacity is more difficult. The plaintiff's capacity for work has been reduced, not destroyed. As a matter of impression, it seems to me to have been reduced by about half. Inability to perform heavy work is more serious for a manual worker than for those in other occupations not requiring such heavy physical exertion.

14. At 61, however, whilst there was some small chance the plaintiff might have worked on beyond 65, the plaintiff did not have a long working life to look forward to.

15. Nevertheless, there was no evidence to suggest that, but for the injury, the plaintiff would have voluntarily reduced his work effort, as his Worship seems to have found. There was no evidence to support such a finding. I incline to the view that his Worship was referring to the "phasing out" that would have occurred inevitably in time. He may have had in mind the "phasing out" after the injury.

16. The full value of the lost capacity would not exceed $40,000.00 in any event. Given the contingencies unfavourable to the plaintiff, I would reduce that figure to $26,400.00. That is not much in excess of the figure his Worship in fact awarded which was for both the past and the future. Of that figure I would attribute $18,400.00 to the past.

17. In the case both of general damages and of past lost earning capacity, interest will be allowed as from 2 July 1992. On the general damages attributable to the past, it should be at the rate of 2% and on lost earning capacity at half the average prescribed rate on the part attributable to the past.

18. I uphold the appeal and order that the total damages to be awarded be varied to $46,857.90 plus interest. There will be judgment accordingly.

19. I will hear the parties as to costs.