DE GROOT v DARLING SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 8 July 1994, 8 July 1994 [1994] NSWCA 81 DAMAGES — QUANTUM — NO QUESTION OF PRINCIPLE DAMAGES — motor vehicle accident — whether claims for non-economic loss and past economic loss made out — held: They had been — no question of principle. Handley JA This is an appeal from the assessment, by his Honour Judge McDevitt, of the damages the plaintiff sustained as a result of a motor vehicle accident. No issue arises as to liability. The accident occurred on 15 November 1987 and the damages, therefore, are to be assessed in accordance with the Motor Accident Act, 1988. His Honour declined to allow any sum for non economic loss, on the ground that he was not satisfied that the injury had significantly interfered with the plaintiff's personal or working life and, accordingly, the threshold under s79(1) of the Motor Accident Act had not been satisfied. He allowed an amount of $10,000 as a cushion for future economic loss, and out of pockets, resulting in judgment for $10,954.09. The plaintiff challenges his Honour's refusal to award any sums for past economic loss, and for non-economic loss. There is no doubt that the plaintiff had made a substantial recovery by the date of trial, but she was still suffering from the effects of the injury and, in particular, she had difficulty moving her arms above her shoulders. The accident caused soft tissue injuries to the plaintiff's low back, her pelvic areas and her neck. It is fair to say that on the medical evidence and on his Honour's findings, the plaintiff had substantially recovered from the effects of the injury to her low back and pelvic areas, but there were persisting problems in relation to the soft tissues of the neck. By the time of hearing these had ceased to affect the plaintiff in the way she looked after her five children and performed ordinary activities around the house. However, it is clear, as I have said, that there were still continuing problems with her neck. She is a young woman and, in the circumstances, I am satisfied that on the medical evidence and on the plaintiffs evidence, which was not challenged at the trial, the plaintiff did make out a case for an award for non-economic loss under the Act. I would assess this at 13 per cent of a most serious case and award damages accordingly. There was no dispute between the parties that the appropriate figure on this basis is $9,930. His Honour's refusal to award any amount for past economic loss is somewhat strange, with all respect, in the light of his award of $10,000 for future economic loss. The plaintiff had an excellent work history prior to the injury, interrupted by a number of pregnancies. At the date of the accident, on 15 November 1987, she was expecting her fourth child. She had commenced work at Fielder's, Dubbo, on 2 UNREPORTED JUDGMENTS 25 February 1987 and at that time was working forty hours a week, with the unusual hours associated with the baking industry. However, as from 1 June 1987 her hours were reduced to twenty a week for which she was paid $128.50 net. There was no explanation, either in the plaintiff's evidence or from the employer, as to the reason for this reduction in her hours in June 1987. She continued to work with Fielder's until 9 July that year when she left work owing to her advancing pregnancy. She attempted to resume work with Fielders after her accident and the birth of her fourth child. The date she made this attempt is not specified in the evidence with any clarity, but it may be inferred to be in the middle of 1988. She worked for three weeks and then stopped because she said she was unable to handle the cleaning and sweeping work that she had been doing before the injury. She gave credible reasons for not being able to work, and her evidence was not challenged in cross-examination. Her fifth child was born in September 1990. In the circumstances, it seems to me that she had made out, on the evidence, a credible claim for past economic loss for a period of some two years between the middle of 1988 and the middle of 1990 when she would have again been forced to give up work because of her advancing pregnancy. For that two year period I would allow, on the evidence, $128.50 per week net that she was earning during June and July 1987 before the motor vehicle accident. This comes to $13,264; rounding it to $13,000. I would propose that the following orders be made:- 1. Appeal allowed. 2. Set aside the judgment of McDevitt DCJ except as to liability and costs. In lieu thereof substitute judgment for $33,884.25, such judgment to take effect from 19 February 1993. 3.The appellant should have the costs of the appeal and the respondent should have a certificate under the Suitors Fund Act. Clarke JA I agree. Sheller JA I agree. 1. Appeal allowed. 2. Set aside the judgment of McDevitt DCJ except as to liability and costs. In lieu thereof substitute judgment for $33,884.25 and such judgment to take effect from 19 February 1993. 3. The appellant should have the costs of the appeal and the respondent should have a certificate under the Suitors Fund Act. Counsel for the Appellant: G H Johnson Solicitor for the Appellant: J M Crestani, Parramatta Counsel for the Respondent: R C Tonner Solicitor for the Respondent: North & Badgery, Dubbo