Winters v Bishop & Anor [2014] QSC 312

Liability was admitted for the motor vehicle incident. Quantum however was in dispute and in particular whether the Plaintiff suffered from a personality disorder as a consequence of her acquired brain injury, together with its impact and that of the acquired brain injury on her earning capacity and consequential need for gratuitous care services and other special needs. The Plaintiff was 34 years of age at the time of trial and by all accounts a “high flyer” who was career conscious.

Philippides J preferred the Plaintiff’s expert evidence and the basis upon which the loss of earning capacity was calculated. Phillippides J also accepted the causal connection between the Plaintiff’s resignation from her employment and the need for it. The Plaintiff’s claim for the effect of the injury on her personality and her earning capacity was substantiated apart from expert evidence by lay witnesses, including her former husband and work colleagues. It was clear the effect of the injury had significantly contributed to the break up in relationship with her husband and subsequent divorce, together with estrangement from family and friends. The award for past economic loss excluding WorkCover weekly benefits was $210,000.00.

Phillippides J accepted the age of retirement as 70 years of age, as opposed to 67 years. Her Honour accepted that the Plaintiff would suffer 20% vulnerability on the open labour market, together with the difference in the career path she was working in at the time of the trial as opposed to her intended career based on comparative earnings. Based on the Plaintiff’s pre-injury work history and career path, Phillippides J made a provision for a global loss of opportunity of working at the highest echelon.

Her loss of future earning capacity was assessed on a 3-pronged approach:

  • Firstly, vulnerability on the open labour market ($225,675.00);
  • Secondly, lost opportunity to follow her intended career path ($526,575.00);
  • Thirdly, loss of opportunity to earn at the highest echelon ($80,000.00)

The total award for future economic loss was $832, 250.00. The award was made by reference to the Plaintiff earning approximately $76,117.00 per annum at the time of trial.

The Plaintiff satisfied the threshold in s59 Civil Liability Act 2002 in respect to gratuitous care and an award was made in her favour. There was some contention as to future care because the Plaintiff was maintaining employment. The Plaintiff’s argument for future paid services was that she engaged a cleaner once every three weeks so that she could deal with fatigue and continue to work. The claim was for $15 a week. Her Honour made the award until the age of retirement (36 years) and discounted it for the usual contingencies of 15 per cent ($12,000.00). However, Her Honour did not accept the Plaintiff’s claim for a grocery delivery service as it had been demonstrated the Plaintiff used to stop in at the supermarket for groceries on the way home back from work.

Head of Damage Award
General damages for pain, suffering and loss of the amenities of life $47,200.00
WorkCover weekly benefits $29,663.57
Past economic loss $210,000.00
Interest thereon $16,185.00
Past superannuation Loss $19,425.00
Impairment of earning capacity $832,250.00
Future superannuation loss $94,044.00
Past Gratuitous care $25,432.00
Future care $12,000.00
Future treatment $13,430.00
Future medication $6,000.00
Special Damages $29,753.69
Interest thereon $487.00
TOTAL $1,335,870.26

 

David Cormack – Brisbane Barrister and Mediator.

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