STENNING v JOHNSON [1991] NSWCA 262

STENNING v JOHNSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 8 April 1991, 18 April 1991

[1991] NSWCA 262

DAMAGES — personal injury — motor vehicle collision plaintiff suffers serious whiplash injury — injury and disabilities cause pain and depression — plaintiff suffers abnormal functional reaction — trial judge (Whealy A-DCJ) allows $200 per week for twelve years for future economic loss — enters judgment for $355,429.29 — held: (1) On the evidence accepted at the trial, the plaintiff had demonstrated a greater earning capacity than that allowed by the trial judge; (2) The error in the over-estimation of loss of earnings and earning capacity required the setting aside of the judgment; (3) The parties invited the Court to reassess and the Court could safely do so and should do so; (4) On a re-assessment, the loss of earnings predicted should be reduced from $200 per week to $100 per week; (5) Other grounds of appeal rejected; interest recalculated in accordance with MBP (SA) Pty Ltd v Goaic, HCA, 26 February 1991 unreported; Bennett v Jones and Anor [1977] 2 NSWLR 355, 371 (CA) applied; (6) Substituted judgment of $229,597.70 entered.

Kirby P I agree with Clarke JA.

Clarke JA On 15 December 1989 Associate Judge Whealy entered judgment in favour of the plaintiff in the sum of $355,429.29. The defendants have appealed from that judgment on the grounds that the assessment was excessive.

The plaintiff, who was 22 at the time, was injured on 31 October 1980 when her stationary vehicle was struck from behind in Oxford Street, Paddington, and she was thrown forward and then back with her head crashing into the headrest. She received a number of injuries in the accident only one of which was of significance. That was a whiplash injury which caused her a great deal of pain and which continued to disable her to a significant extent until the date of trial. In addition she has suffered, as a consequence of her injuries, from depression which has at times been very serious. I would add that the picture painted by the evidence is an unusual one insofar as, although the plaintiff has appeared to take a positive view of the improvements in her condition from time to time, she suffered an abnormal functional reaction of great severity. Dr Woodforde, a psychiatrist, who saw her on 27 June 1983 noted: