ANNETTE SMITH v KAREN WALLY BIRO [1991] NSWCA 249

ANNETTE SMITH v KAREN WALLY BIRO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ (2), PRIESTLEY JA (3) AND HOPE AJA (1) 28 March 1991, 28 March 1991

[1991] NSWCA 249

DAMAGES — motor vehicle accident — quantum — no question of principle — appeal dismissed.

Hope AJA The respondent / plaintiff sued the appellant/defendant for injuries and associated disabilities resulting from an accident which she had whilst jogging across a pedestrian crossing on 25 July 1984.

The plaintiff was born on 8 September 1934 and thus she was fifty years of age at the time of the accident and nearly fifty-five years of age at the date of trial. She suffered in the accident two principal injuries; one being described as a fracture of the right knee joint with marked depression of the left tibial plateau, and the other as a back injury consisting of an aggravation of a pre-existing degenerative condition. She was knocked unconscious at the time of the accident and was taken to hospital where she remained until 16 August 1985. She was operated on for her knee and a screw was inserted. Her knee was encased in plaster.

After the plaintiff had been admitted to hospital she noticed, out of the general pain that she was suffering, a pain in her low back which went down her left leg to the ankle. She came out of hospital and gradually recovered, although she had to have manipulation of her spine on three occasions. On one of those occasions she also had the screw removed which had been inserted in her knee.

The plaintiff had been employed at the time of the accident for many years, and went back to work in December 1984. She had previously been employed as an usherette but she found that work difficult because of continual standing and walking, and she was given a job as a cashier which enabled her to sit for most of the time. This relieved, to some extent, the pain she suffered from her right leg She was still employed as a cashier at the time of the trial.