Costin v Copson & Anor [2017] QDC 183

Reid DCJ

The plaintiff, a resident of Denmark travelling to Australia, was the front seat passenger of a motor vehicle driven by the first defendant who was struck from behind in March 2014, eventuating in a concertina collision.

A day after the accident, the plaintiff attended upon his general practitioner complaining of muscular neck pain.

As a result of the accident, the plaintiff claimed to suffer from neck pain.

Liability was admitted, and the only issue for Reid DCJ was the quantum of the plaintiff’s claim.

Medical evidence

After the accident, the plaintiff underwent consultations with his general practitioner and physiotherapist in Australia. Relevantly, while the plaintiff complained of neck pain, there was no record of the plaintiff suffering from lower back pain.

The plaintiff left Australia in June 2014 and attended upon his general practitioner in Denmark, Dr. Hanson, in December 2014. While accepting that the plaintiff’s financial situation prevented him from seeing his general practitioner earlier, Reid DCJ did not accept Dr. Hanson’s record that the plaintiff suffered new symptoms where no such complaint was made in Australia.

Dr. Bruce McPhee, spinal surgeon, saw the plaintiff in September 2015 and opined that the plaintiff continues to suffer from a soft tissue injury of the cervical spine. Dr. Scott Campbell, neurosurgeon, opined that the plaintiff developed chronic neck pain and headaches as a result of the accident.

Plaintiff’s evidence

Finding the plaintiff to be straightforward and honest, Reid DCJ found:

[34] … He had opportunity to embellish his claim, particularly in relation to his economic loss, but did not do so. For example, he said as I have recounted that opportunities for overtime in his job in Denmark were very rare. Furthermore he readily conceded that to date he had suffered no loss of income in either Australia or in Denmark. He said that although, pre-accident, he worked up to 14 hours a day at his brother’s business he was paid only for a regular 38 hour week. He said he did this to assist his brother’s family as his brother was then in jail. As a consequence, he said that, although in the three month period he worked in Australia after the accident he worked less hours than he could have done if not injured, he himself suffered no loss of income. Such concessions, readily made, assist me in concluding he was an honest witness. That impression extends to his evidence of ongoing problems with his neck as he described…

His Honour accepted that before the accident the plaintiff was an active man who was closely involved with his family and always had home maintenance projects to work on. His Honour also accepted that the plaintiff no longer engaged in outdoor activities because of the ongoing problems with his neck.

Future loss of earning capacity

The most contentious item for Reid DCJ was the plaintiff’s future economic loss. Finding that the plaintiff was in a similar position to Ballesteros v Chidlow and Anor [2006] QCA 323 and in a more vulnerable position than the plaintiff in Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312, his Honour stated:

[52] … In Denmark his suffering no loss is disguised by the fact, which I accept, that he has had time off work due to significant neck symptoms from time to time but that he has continued to be paid for a full week’s work despite those absences. The evidence of his former supervisor, Mr Bertelsen, leads me to conclude that he has benefitted from the attitude of a very friendly supervisor. That of course may continue to be the case in the future but Mr Bertelsen retired early this year…

[53] … Because the plaintiff performs a moderately physical job, his reduced ability to work above shoulder height and when looking up, for example, when painting ceilings are of particular importance. At his age and suffering the symptoms he and other lay persons in Denmark described, loss of his employment may result in a much reduced ability to find equivalent work.

[54] Having said that however, I do not unduly inflate the likelihood of his being placed in such a position. He is obviously well-regarded as a good tradesman although one who is less efficient than previously and he has worked in his employment for a significant period with his symptoms.

[57] In my view an award of $40,000 approximately also reflects the various contingencies and compensates the appellant for the ongoing hypothetical chances relating to the effect of his accident-related injuries on his future employment. The assumptions on which that finding are based, as required by s. 55 of the Civil Liability Act are set out herein. I am satisfied that he will suffer loss having regard to these matters. The award can be mathematically justified in a number of ways. It is equivalent, I note, to a weekly sum of $80 per week to age 67. Furthermore it is equivalent to a sum of about $440.00 per peek until retirement, delay for 10 years. Such a scenario could play out in the event of early retirement.

Judgment was given for the plaintiff in the sum of $66,048.00.

David Cormack – Brisbane Barrister & Mediator

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