GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v HODGSON [1990] NSWCA 72

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v HODGSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and MEAGHER JJA 23 April 1990, 23 April 1990 [1990] NSWCA 72

DAMAGES — quantum — no question of principle.

Samuels JA This appeal by the defendant arises out of a motor vehicle accident which took place on 21 January 1986 and in which the plaintiff, the present respondent, sustained what appears to have been a whiplash type of injury to the cervical spine. There was no question of liability and his Honour Judge Moore awarded the respondent the total sum of $134,000, including the sum of $66,000 for diminished earning capacity.

It is conceded that the learned judge fell into error by failing to deduct from his assessment of the loss accrued to trial amounts earned by the plaintiff between the accident and judgment. Accordingly, there being an error of that kind in the assessment, it is our obligation to reassess the damages and we do so in the conviction that we have the necessary material before us, and, indeed, with the assent of the parties.

The injury, as I have said, was one to the cervical spine. The matter is a little complicated by the fact that the Plaintiff had sustained an earlier spinal injury, and ironically enough had, the day before the accident, consulted a chiropractor from whom he had received treatment on previous occasions.

There is no evidence to my mind that the earlier injury had limited the plaintiff's capacity to work, but certainly it produced altered sensation in the index and middle fingers of his right hand. The accident with which we are concerned also brought about some interference with nerves supplying the right arm and hand and produced paraesthesia and limitation of function primarily in the little finger of that hand. The plaintiff continued doing reasonably heavy work for three weeks after the accident but then found he was unable to continue. There are various arithmetical endeavours before us to establish the time which elapsed between the accident and judgment, which seems to me to amount to ninety four weeks.