No economic loss – s.55 CLA – failure of probative evidence

Soogyung Kim v Xiaoxia Liu & Anor [2017] QDC 167

Judge Bowskill made no award for past loss of income or future loss of earning capacity on the basis that section 55 of the Civil Liability Act 2003 was not met and the failure by the plaintiff on the evidence that a financial loss would be suffered because of the injuries:

[79] Under s 55(2) of the Civil Liability Act 2003the court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. This involves consideration of whether the plaintiff has demonstrated, on the balance of probability, that their earning capacity has been diminished by reason of the accident-caused injury(ies) and, if so, whether that diminution in earning capacity is or may be productive of financial loss.[65] It is in considering the “may be” in this second question that the principles in Malec v JC Hutton Pty Ltd [1990] HCA 20(1990) 169 CLR 638 arise, in terms of the assessment of both past and future hypothetical events.[66]

[80] For the reasons already outlined, I am not persuaded on the evidence that the prospect of undertaking a nursing course in Australia was anything other than remote. I am also not persuaded that Ms Kim would have worked during her second English course. She did not work during the first one, because, as she said, she wanted to concentrate on her studies. It seems more probable than not that she would have done the same during the second English course. She had not worked during the 12 months prior to the accident. She did not look for a job for 12 months after she returned to Korea, upon completion of the second English course, and as I have said, that was not said to be attributable to any injury.

[83] The real issue of concern in this case is the absence of probative evidence to establish that the plaintiff has suffered a loss of earning capacity as a result of her accident-caused injuries, let alone that any such loss has been productive of financial loss.

[84] Ms Kim bears the onus of proving her case. I have to be able to reach a degree of actual persuasion,[68] on the basis of evidence that is before the court, in order to be satisfied that Ms Kim has suffered a loss of earning capacity. I am unable to do that on the basis of Ms Kim’s evidence alone, unsupported as that is by any other, independent evidence in support of the various assumptions which are said to underpin this claim. In so far as her time in Australia after the accident is concerned, the bare assertion, in the face of all the other evidence, that “due to the accident I was not in a situation to work”[69] does not provide a sufficient basis for me to be satisfied, as required by s 55(2). Nor am I so satisfied that she has suffered any such loss, in relation to the period after her return to Korea, when she did not look for work in the first 12 months, and that was not said to be attributable to her physical state. In so far as the period since February 2017, the evidence before me does not establish the availability of additional work in Ms Kim’s current role; the ability, in terms of qualification, for Ms Kim to do that work, even if it was available; or the amount of money that may have been earned. Nor am I persuaded, in any event, of her physical inability to work additional hours, should she choose to do this. In so far as the calculation of the claim is put on the basis of a comparison between what Ms Kim earned in Australia, when here on a working visa, and what she earns now, for the reasons already articulated, I am not persuaded by that argument.

[85] To be clear, my conclusion is based on a determination that the plaintiff has not discharged the onus of proving that she has suffered a loss of earning capacity, and I am not satisfied that there is any real prospect that, in any event, she would have earned more money (or, put the other way, that she has suffered a loss of earnings). Accordingly, I make no award for any past loss of earnings.

[86] My ultimate conclusion is the same in terms of the claim for future loss of earnings.

[93] Without explanation, or evidentiary support, in terms of the assumptions or methodology involved, it is submitted for Ms Kim that an award for future economic loss would appropriately be quantified in the sum of $100,000.[75] That is simply insufficient.[76]

[94] Ms Kim has not discharged the onus of establishing that her earning capacity has been diminished as a result of her accident-caused injuries. The principles in Malec do not, in those circumstances, come into play.[77]

[95] I am not satisfied, for the purposes of s 55(2) that Ms Kim will suffer loss of earnings as a result of the injuries she sustained in the accident.

David Cormack – Brisbane Barrister & Mediator

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