MVA – Assessment of Economic Loss and conflicting evidence on General Damages

Nichols v Curtis and QBE Insurance (Australia) Limited [2010] QDC 34

Liability was agreed to be reduced by 40% because of intoxication. The plaintiff was a backseat passenger when the vehicle collided with fencing and a shed. She sustained a laceration to the left side of her face. The additional neck injury claimed was disputed and the subject of the trial.

His Honour Andrews SC discusses why he preferred Dr Wallace to Dr Fraser, and accepted the plaintiff’s evidence despite being an unreliable historian. He accepted that this did not mean she was not credit worthy or her evidence about her neck injury was not implausible (paragraph 27).

The plaintiff had a very sketchy employment history interrupted with a number of personal circumstances such as alcoholism, self harm and abusive relationships. At the time of the trial she was 6 months pregnant and in a stable and supportive relationship.

Generals:

His Honour followed Ballesteros v Chidlow [2005] QSC 280 principles and allowed an ISV of 10 and awarded $11,000.00 in Generals (paragraph 38)

Past economic loss was not made out:

[39] Between the accident and trial the plaintiff had a disadvantage on the open labour market due to her incapacity to do heavy work. I accept that there were a number of jobs which the plaintiff physically would have been unable to perform. The plaintiff bears the onus of proof that that impairment has caused her economic loss between June 2004 and the trial. The onus is not satisfied merely by proof of the impaired capacity to compete in the labour market. There is no evidence that the injury to the cervical spine caused the plaintiff to leave any of the jobs she obtained or to be rejected for any of the jobs for which she applied or to decline to apply for any available job. The plaintiff’s counsel submitted that the plaintiff would have worked more than she did, but for the accident and would have had more opportunities open to her, but for the accident. There is no evidence that she would have worked more than she did but for the accident. I accept that the plaintiff would have had more opportunities open to her, but for the accident. However, the plaintiff gave no evidence of eliminating employment opportunities because of neck injuries.

[40] There was no submission made for the plaintiff that she should receive damages for past economic loss expressly on the basis of loss of a chance or by reference to principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 considered in this context in McDonald v FAI General Insurance Co Ltd [1995] QCA 436. It may have been implied in the plaintiff’s submissions and is worthy of consideration. It seems to me that without evidence that the plaintiff lost employment or in seeking employment rejected specific work or general types of work because of her injury the plaintiff fails to satisfy an onus that she suffered loss.

[41] I reject the plaintiff’s claim for past economic loss.

Future Economic Loss:

[42] The plaintiff’s lack of education, history of depression, lack of confidence in dealing with customers, history of alcohol abuse and history of under employment are each matters which suggest that her future employment will be less than full employment. However, the plaintiff’s confidence has improved, she has stopped abusing alcohol and she has maintained moderately heavy manual work in a nursery for four and a half months despite regular pain. She has taken the initiative to create a resume and to distribute it. Her partner’s evidence is that when he returns after a day’s work the plaintiff is regularly on the telephone about employment. For a person with the plaintiff’s disadvantages in competing for work the difficulties she would have with heavy manual work, process work and with sedentary work will adversely affect her employability on the open labour market.

[43] The insurer submits that if I generally accept the evidence of the plaintiff and of Dr Wallace an award of $10,000-$20,000 is adequate having regard to the cautious approach urged in Colmark (Australia) Pty Ltd v Hall [1998] QCA 105. In that case it was observed that a cautious approach to the assessment of damages is appropriate where any injury of no great significance is alleged to have been seriously disabling. I note that the plaintiff in that case had maintained habits of drug taking and voluntary unemployment for much of the 8½ years between the accident and trial when he was about 40 years of age. He had worked only occasionally and intermittently for short periods in the 12 years until he was 32 years of age. The plaintiff’s situation is different in that she is younger, has demonstrated a desire for employment and the discipline to put alcohol abuse behind her and to maintain nursery work that caused her pain for 4½ months. She has a potential working life ahead of her of about 40 years.

[44] An indication of the kind of net income available to an unskilled manual worker appears in the Cleaning Services Award 2010 and shows that a Level 1 Cleaning Services Employee should not earn less than a minimum weekly rate of $582.80 and that the annual award wage for such an employee based on a 52 week year is $30,305.60. The plaintiff submits that an appropriate global award should be based on a calculation 2½ years of full time work and seeks an assessment of $75,764.

[45] I accept that a global award is appropriate. I accept generally the approach taken in Cook v Bowen [2007] QDC 108 and Carroll v Coomber [2006] QDC 146 and assess

future economic loss at $60,000.

Brisbane Barrister – David Cormack

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