JEFFREY v MARSHALL and ANOR [1995] NSWCA 220

JEFFREY v MARSHALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and POWELL JJA 16 March 1995, 16 March 1995

[1995] NSWCA 220 Damages — Personal injuries — General damages — Economic loss Inadequacy

Priestley JA I will ask Powell JA to give his reasons first.

Powell JA On 31 July 1987, the Appellant, Mrs Jeffery, was a passenger in a motor vehicle travelling in Bridge Street, Hornsby at a time when that motor vehicle came into collision with another motor vehicle. The date of the accident is significant, for it was shortly after the coming into operation of the provisions of the Transport Accidents Compensation Act 1987. Of those provisions, for present purposes there need be noted only s40, which provided (inter alia) that no right to, or claim for, damages or compensation should lie for, or in respect of, death of or bodily injury to a person caused by or arising out of a transport accident occurring on or after 1 July 1987, and s52 and there following, which provided for compensation for loss of earning capacity, the amount of compensation being prima facie eighty per cent of the regular earnings of the person who had been injured.

Following the accident, Mrs Jeffery was conveyed to Hornsby Kuring-gai Hospital, where she was detained for observation for a period of four hours or thereabouts. In addition to the usual physical examination, a series of x-rays of the thoracic spine was carried out. The hospital records would tend to indicate that, upon examination, Mrs Jeffery complained of tenderness in the lower mid thoracic spine and, as well, that the x-rays, while revealing some degenerative changes, revealed no further bony injury. Accordingly, Mrs Jeffery was discharged to home and advised to seek the assistance of her local medical practitioner.

By the following day, Mrs Jeffery was complaining of neck pain and, as well, pain in a number of other parts of her body. As a result, she was unable to return to her employment for a period of some three months, during which, in addition to having treatment by her local medical practitioner, she had treatment from a physiotherapist. However, although, at the end of that period of 3 months, Mrs Jeffery returned to her employment as a Bar Attendant at the Australian Arms Hotel at Penrith, she found that the demands of her employment were such that she was unable to continue and she thereafter remained unemployed.