Foweraker v Krishnanantharmoorty

[1999] NSWCA 294

CITATION:	Foweraker v Krishnanantharmoorty & Anor [1999] NSWCA 294
FILE NUMBER(S):	CA 40255/98
HEARING DATE(S):	30 July 1999
JUDGMENT DATE:	16 August 1999
PARTIES :	Esperanza Foweraker v Nallia Krishnanantharmoorty Nicholas Nanne
JUDGMENT OF:	Mason P at 1; Giles JA at 32

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 7164/97
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ

COUNSEL:	A: Mrs E Foweraker in person R: RC Tonner
SOLICITORS:	A: Nil R: Gorman Dunbier, Solicitors, Campbelltown
CATCHWORDS:	DAMAGES - Claim of economic loss rejected on credibility grounds - No question of principle.
ACTS CITED:	Motor Accidents Act 1988
CASES CITED:	Matthews v Dean (1990) 11 MVR 455 Roberts v White [1999] NSWCA 12 Abalos v Australian Postal Commission (1990) 171 CLR 167
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40255/98
DC 7164/97

MASON P
GILES JA

Monday, 16 August 1999

Esperenza FOWERAKER v
Nallia KRISHNANANTHARMOORTY & Anor

JUDGMENT

1    MASON P: The appellant was injured in a motor vehicle accident on 26 June 1992. She was the driver of a vehicle stopped at lights when a taxi collided into the rear. Liability was admitted by the respondents who were the driver and owner of the taxi respectively. 2    Judge Murrell SC assessed damages in the sum of $47,645.90 made up as follows:

s79 (non economic loss, 15%) $17,000.00

Past economic loss 3,560.00

Past out of pocket expenses 22,085.90

Future out of pocket expenses 5,000.00

$47,645.90
The appeal challenges the adequacy of damages.

3    The appellant is a Filipina who was born in 1956. She married her husband in 1979. Between 1979 and 1986 she raised two young children and performed home duties. 4    The appellant’s husband is much older than her. A heart condition that developed in the mid-1980s meant that he could not continue as the family’s breadwinner. Consequently, the appellant commenced working at Lifesavers in 1986. She was a reliable worker who enjoyed her employment. Her work consisted of repetitive packaging and involved the lifting of weights of up to 11 kilograms. 5    Immediately after the accident on 26 June 1992 the appellant attended the Royal North Shore Hospital. She was x-rayed and discharged with a cervical collar. Dr Grant, a general practitioner who became her treating doctor, diagnosed a whiplash injury to the cervical spine. He referred the appellant to a physiotherapist. 6    On 13 July 1992 the appellant returned to work on light duties and on 11 August she returned to normal duties. During the remainder of 1992 there was one day’s sick leave, which occurred on 7 December 1992. The appellant remained in full employment with Lifesavers (later Nestle) until she took voluntary redundancy in mid-1994. 7    Dr Grant noted continuing but improved symptoms when he examined the appellant on 31 July 1992. However, from late 1992 and during 1993 the appellant began to make what the trial judge described as “unusual complaints”. She told Dr Grant in September 1992 that she was…