CLA: $1.282 m for 5% soft tissue injury, despite surveillance

Martin v Andrews & Anor [2016] QSC 020

McMeekin J

The plaintiff suffered a soft tissue injury to his lower back following a rear-end motor vehicle collision. Liability was not in dispute. The plaintiff was 39 years of age at the time of collision and 44 years of age at the date of trial.

At the time of trial the plaintiff had no fixed address, living in a campsite. The plaintiff had lost his work vehicle in the accident; the loss of work capacity subsequently contributed to his loss in the family pastoral partnership, foreclosure and nomadic life, including swag camping.

The award was as follows:

Pain, suffering and loss of amenities of life $13,350.00
Past economic loss $400,000.00
Interest on past economic loss[56] $21,398.30
Future loss of earning capacity $750,000.00
Loss of superannuation $93,100.00
Future expenses $2,000.00
Special damages $2,723.80
Total Damages $1,282,572.10

The defendants alleged the plaintiff had improved after the collision and could return to work; was not motivated or failed to mitigate his loss; alternatively, they argued the plaintiff’s loss was because of his impecuniosity, namely not purchasing another work vehicle.

During the beginning of the trial, an ex parte order was obtained in relation to surveillance (via a telephone application to a Brisbane judge). The surveillance was taken the weekend before the trial.

The surveillance was put to Dr Campbell, who conceded that the initial 7% AMA impairment assessment ought to be moderated to 5% but otherwise was unmoved as to whether the plaintiff could undertake heavy lifting and work in confined spaces for extended periods of time. In the end, there was little variation between the expert neurosurgeons of Drs Halliday and Campbell, who not only assessed the plaintiff to have a 5% AMA impairment but accepted that heavy lifting and confined work for extended periods of time would aggravate the plaintiff’s injury.

The surveillance did show the plaintiff undertaking heavy lifting or work in confined and awkward positions for a sustained period.

The ultimate expert witness contest was between the occupational therapists, Mrs Helen Coles and Ms Anne White. His Honour preferred Mrs Coles.

[51] Ms Coles saw Mr Martin on 19 October 2012 and 12 January 2016. She said:

“11. Mr Martin’s present status is such that he would be unlikely to return to his trade in any reasonably productive capacity as a contractor. It is also unlikely that he would obtain and thereafter maintain himself in other work for which he might be suited by background experience.

  1. Mr Martin could be expected to be at a disadvantage seeking work in competition with able-bodied job applicants on full and frank disclosure of his history of injury and associated deficits.
  2. He would be precluded from share farming on a reliable basis.
  3. Although Mr Martin is not totally unable to engage in any occupational endeavour, his prospects for participating in any realistically remunerative endeavour are low.”[28]

[52] Ms Cole repeated those opinions after the second attendance.[29]

[53] The defendant argues that these opinions merely reflect Mr Martin’s self-report and it is true that the experts were required, to a degree, to rely on Mr Martin’s self-reporting of difficulties. But each was very experienced and no-one, other than Ms White, found any discrepancies in his presentation. And my view was that Mr Martin was quite an impressive individual.

Justice McMeekin went on to describe the conclusions of Ms White as “illogical” and that she was alone in her opinions, while experts are not “counted” but “weighed” his Honour stated, he could not follow Ms White’s logic. Justice McMeekin found Ms White ignored the unchallenged evidence that much of the plaintiff’s work would require lifting, which was heavy and in awkward and sustained positions.

The plaintiff’s earning capacity was accepted because the plaintiff demonstrated twenty years of work as a skilled and qualified electrical fitter/ mechanic/linesman with expertise in high voltage work. The plaintiff had left work predominantly in the mines to start his own business, which had been operating for about ten months before the collision. In favour of the plaintiff was that this business grossed over $111,000 in the eight-month period before the subject accident with a net profit before tax of a little over $83,000.[4] This period included the floods of January 2011.

Evidence was also called about the plaintiff’s work, and his supervisor spoke well of him. Further evidence was called about the rate of pay in the mines, which was, at least, $1,800.00 net per week and accepted.

Justice McMeekin found the plaintiff to be “impressive”. Given the ex parte application at an early stage during the trial, the issue of surveillance, while not initially disclosed was a live issue. Justice McMeekin found he had some opportunities to consider the plaintiff during the trial and found the plaintiff answered questions directly and that his movements were consistent with the stated injuries.

As to the defendants arguments Justice McMeekin found:

Lack of Motivation

[60] The defendant’s assertion that Mr Martin lacked the motivation to obtain alternative employment within his capabilities is unsupported by any evidence. In fact the evidence is very much the other way.

[61] It is plain that Mr Martin valued the family farm. He stood to lose a substantial investment if it was sold up by the Bank. The defendant’s argument is that he let that sale occur despite having the means to stop it by returning to his well-paid work which he apparently had enjoyed. It would appear that the sale of the farm led to a disruption of the family[32] and the loss by Mr Martin of hundreds of thousands of dollars.[33] I find it very difficult to accept that he would have stood by and let this occur had he the ability to stop it.

[62] Mr Martin’s evidence was that in 2012 and following, he attempted to obtain employment by many and varied means. He was unsuccessful in his attempts. There was no cross-examination of him suggesting that this was not true or to establish that he was pursuing inappropriate work or not accepting work that he should have. By late 2012 he made his first application to a university in the hope of undertaking a degree to retrain himself. He was criticised for the courses he chose but there was no evidence that he had no prospects of employment had he qualified in any of his areas of interest. He claimed that there were areas of employment opening up around the country. I accept that was his belief. It was not shown to be wrong or unreasonably held.

Impecuniosity and Mitigation

[63] The leading text on the assessment of damages for personal injury concludes that the Liesbosch[34] principle has no, or very limited, application in the personal injury field.[35] The decision of the High Court in Fox v Wood[36] had that effect. The approach taken there by Gibbs CJ (Aickin and Wilson JJ agreeing) was to distinguish between what was a natural and foreseeable consequence of the injuries and a special loss due to the financial embarrassment of the injured plaintiff. An inability to fund the purchase of a vehicle (particularly one of the quality necessary to carry out the high voltage testing work) would be an every-day consequence of impairing someone’s earning capacity. Two members of the Court expressly held that where it is the defendant who has rendered the plaintiff impecunious the principle does not apply: Fox v Wood per Brennan J (446) and Murphy J (442). That is what has happened here. Had Mr Martin retained his excellent earning capacity unimpaired after the subject accident he would have had no difficulty financing a new vehicle.

[64] In any case the submission is based on a premise that I do not accept, namely that it was the lack of a vehicle that resulted in Mr Martin not obtaining employment. While the lack of a vehicle was no doubt an impediment Mr Martin was never in the physical condition to take up employment, at least of the type he had followed all his life. Nor was it shown that there was any offer of employment made to him that he was forced to decline because of a lack of a vehicle.

[65] As to a failure to mitigate, it was not demonstrated that the choices Mr Martin made were unreasonable. It seems evident that he faced a very difficult time in the year following the subject accident. For seven months he was without income and dependent on his savings.[37] He had no way of knowing when, if ever, he would be put in funds. Once in fairly modest funds he did not know what lay ahead. He had significant debts. The argument is, effectively, that at a time when he was well short of being fully recovered he should have put everything he possessed (and what that amount was is unknown) into purchasing a motor vehicle sufficient to equip him to obtain unidentified employment. The defendant bears the onus of proof in establishing a failure to mitigate loss. The evidence comes nowhere near showing such a failure.

Past Economic Loss

[95] The defendant sought to show that Mr Martin could return to his full duties but failed in that attempt. Here it is not that Mr Martin does not have some residual capacity to earn an income. The witnesses that he called, Dr Campbell and Ms Coles, support the view that a capacity remains. Mr Martin says, and he is not really contradicted, that he attempted to exercise that capacity and failed and then thought his best chance to return to employment was to retrain.

[96] What then are the principles that apply to the assessment? In Thomas v O’Shea (1989) ATR 80-251 at p 68,701 Malcolm CJ and Wallace J held (with Kennedy J agreeing):

“The question remaining is what was the appellant’s residual earning capacity, if any. This was clearly a case where, as the learned trial Judge found, the appellant had lost the earning capacity he had before the accident. The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at p 657 per Barwick CJ; Van Velzen v Wagener (1975) 10 SASR 549 at p 550 per Bray CJ; and Linsell v Robson [1976] 1 NSWLR 789 at pp 253–254 per Hutley JA; and at pp 254–255 per Glass JA. In Baird v Roberts [1977] 2 NSWLR 389 it was held that a defendant who seeks to show that the plaintiff can still do “light work” or follow a “sedentary” occupation must adduce evidence that the plaintiff is able to do such work and to obtain it and what the earnings from it would be. The Full Court in Victoria has taken the same approach: Vandeloo v Waltons Ltd [1976] VicRp 6; [1976] VR 77.

[97] To the extent that O’Shea supports the proposition that in the absence of the sort of evidence there discussed a defendant will be unable to have damages assessed on the basis that the plaintiff has a residual earning capacity, it has been expressly disapproved in Queensland: see Bugge v REB Engineering Pty Ltd[43] per Chesterman J (as his Honour then was) approved in Anodising & Aluminium Finishers v Coleman.[44] Those cases show that there is no “mechanistic approach” such that a failure to lead evidence of the kind discussed in O’Shea has the effect that the defendant is precluded from arguing for some residual capacity. Rather the residual capacity must be assessed on the evidence, taken as a whole.

[98] But where the defendant does not seek to demonstrate the potential alternative employment opportunities open to an injured plaintiff, and what income those opportunities might bring, there seems little justification for significantly discounting the award on the basis of what the plaintiff ought to have done or ought to have achieved.[45] If the defendant’s real point is that the plaintiff has not done all that he reasonably could to mitigate his loss then it is clear where the onus lies. In my view the defendant did not discharge that onus. There was no evidence that anyone would be prepared to employ Mr Martin as an electrician with the limitations that Ms Coles spoke of. There was no attempt made to show what alternative employment opportunities were open, assuming the loss of the pre-existing earning capacity and those continuing limitations identified by Ms Coles, and the likely earnings that might result from the exercise of that limited capacity.

[101] To arrive at the figure advanced for the plaintiff Mr Crow of Queens Counsel, who appeared for the plaintiff, adopted a net weekly loss of $2071.74 for the 239.5 weeks since the subject accident, reflecting the high voltage testing contract rates the plaintiff enjoyed. He points out in his submission that in the opinion of the accountant called, Mr Ferris, legitimate use of the corporate structure and the changing tax scales meant that the adjusted net weekly loss was about $2,229.[47] Hence there is a built in discount, for part of the period, of nearly $160 per week from the greatest possible loss. I also note that even if, on the day after the subject accident, Mr Martin had been driven back to earning the income he enjoyed as an employee his loss would be in the order of $330,000.[48]

[102] To allow for the discounting factors I have mentioned and any non-deductible expenses in achieving the income proposed I will allow $400,000 under this head of loss.

Future Economic Loss

[110] There are many imponderables. I will allow $750,000 under this head of loss. The amount reflects a loss of around $1,800 net per week over 16 years, to take Mr Martin to age 60, discounted on the 5% tables and then discounted by 25-30% to allow for residual earning capacity, the uncertainties of maintaining substantial earnings either as a high voltage tester or in the mining industry, and the prospect of Mr Martin not wishing to maintain constant employment in more arduous work. By age 60 I assume that Mr Martin was more likely, if uninjured, to pursue sedentary work of a type that is within his residual capacities. In saying that I do not mean to assert that I have assumed those precise assumptions underlie the award. Rather my approach is that a substantial amount is warranted and this award best reflects the many variables.

[111] Some might think that the modest impairment of 5% seems out of keeping with the findings as to the consequent very significant economic loss. That comes about because of three things. The first is the substantial earning capacity enjoyed by Mr Martin before he was injured. The second is that “impairment” does not equate to “disability” ie the actual impact of the condition on the individual.[54] The third is that under the Act, for the purposes of assessment of the “whole person impairment” (“WPI”) in relation to an injury, which is used to determine the ISV, the impact on employment is specifically excluded: the dictionary defines WPI as an estimate “… expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform activities of daily living other than employment.”

David Cormack – Brisbane Barrister & Mediator

 

 

 

 

 

 

 

 

 

 

 

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