Take the plaintiff as you find them: Court awards almost $2.5 million damages for serious motor vehicle accident

30 April 2021

The Supreme Court of Queensland recently awarded a plaintiff nearly $2.5 million in damages for injuries he sustained in a serious motor vehicle accident.

In issue

  • The assessment of the plaintiff’s damages, particularly general damages, economic loss and gratuitous care.

The background

On 5 January 2015, the plaintiff was involved in a serious motor vehicle accident when another vehicle veered onto the wrong side of the road and collided head-on at high speed with the plaintiff’s vehicle. The CTP insurer admitted liability for the collision. The plaintiff alleged he suffered a number of serious injuries including multiple fractures and lacerations, a traumatic brain injury and various psychological conditions including PTSD and a co-morbid adjustment disorder. The trial judge accepted that the accident caused the plaintiff’s personality to almost completely change.

The decision at trial

As liability for the accident was admitted, the trial was confined to quantum. The trial judge ultimately awarded the plaintiff $2,499,399.69 in damages. The most significant heads of damage were as follows:

General damages ($109,640)

The trial judge determined that the plaintiff’s dominant injury was his psychological injury and classified it as a “serious mental disorder”. According to the Civil Liability Regulation 2014, this injury may be assigned an Injury Scale Value (ISV) of 11 to 40. The trial judge considered that the maximum available ISV of 40 would not adequately reflect the plaintiff’s many other severe injuries. His Honour therefore applied an uplift of 10%, which resulted in an ISV of 44 and general damages of $109,640.

Past economic loss ($516,957.20, plus interest of $17,245.69)

Prior to the incident, the plaintiff earned $1,660 net per week in a workplace health and safety role. He was made redundant after the accident for unrelated reasons. The plaintiff argued that he should be awarded past economic loss at a higher wage of $2,050 per week to account for career advancement opportunities particularly in the mining industry. However, the trial judge considered that this was unlikely and that the plaintiff’s pre-accident earnings were an appropriate benchmark of his earning capacity. His Honour awarded damages of $516,957.20 plus interest of $17,245.69.

The CTP insurer argued that the plaintiff failed to mitigate his loss by not returning to the workforce. This submission was not accepted in view of the plaintiff’s injuries but the trial judge did accept that the plaintiff should not be entitled to loss of wages for 3 months, which was the time he likely would have been out of work as a result of his redundancy had he not been injured.

Future economic loss ($959,404)

There was a significant difference of approximately $1million between the parties’ assessments of future economic loss. As with his claim for past economic loss, the plaintiff submitted that he would have obtained a position in the mining industry and enjoyed opportunities for advancement. The trial judge considered that the nature of the industry meant it was unlikely that the plaintiff, as a dedicated family man, would have worked there. The CTP insurer argued that the plaintiff had a pre-existing depressive disorder and submitted it ought to be taken into account as a negative vicissitude. The trial judge gave this issue little weight because at the time of the accident the pre-existing condition was not impairing the plaintiff’s ability to work.

Ultimately, the trial judge considered that, as the plaintiff’s earnings were tending to increase, his future earning capacity ought to be assessed at $1,800 net per week for 20 years (until he turned 69). Although the plaintiff was a capable man who might return to part-time employment in the future, it was not possible to make a specific deduction to take it into account. Instead, the trial judge decided to factor that possibility into an overall 20% discount for contingencies. Accordingly, future economic loss was assessed at $959,040.

Future medical expenses ($77,014)

Although the plaintiff presented evidence that he would require extensive psychiatric treatment in the future, the trial judge accepted evidence given by the CTP insurer’s expert psychiatrist which suggested that much of that treatment was likely to be excessive and ineffective. The plaintiff was however allowed $50,808 to cover the cost of psychologist treatments and a global sum of $10,000 for future psychiatric treatment including the cost of occasional reviews and medication. The plaintiff was also allowed $16,206 for the costs of visiting a GP and future surgeries.

Gratuitous care (past care: $143,052, future care: $225,554)

The parties agreed that the plaintiff was entitled to claim damages for gratuitous care. They also agreed that the appropriate rate for past care was $42 per hour. By way of short summary, the trial judge assessed the plaintiff’s damages by reference to 6 different time periods. In some of these periods, the plaintiff was in hospital and no damages were allowed. Initially, the plaintiff’s care needs were significant but diminished over time as he recovered from his injuries. In total, the trial judge allowed damages of $143,052 for past care.

The trial judge also allowed damages for future care at 1 hour per day for 35 years. However, his Honour discounted this head of damage by 20% on the basis that the plaintiff’s care needs would further diminish. The trial judge found that the plaintiff’s mental health might improve once his personal injury litigation had concluded because he was heavily invested in it. This resulted in damages for future care of $225,554.

Implications for you

The significant sum of damages awarded in this case is an application of the established legal principle that defendants must “take their victims as they find them”. Defendants therefore face forensic difficulties in having a plaintiff’s damages reduced due to reasons such as a failure to mitigate a loss or pre-existing conditions like depression.

Allen v O’Donnell [2021] QSC 63

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