INGERSOLE v NANCARROW – A change in lifestyle can effect compensation claims

Published 14 Jun 2017

His Honour Justice Reid in the matter of Ingersole v Nancarrow [2016] had turned his mind to an interesting dilemma of how much weight to give a change in lifestyle when determining its effects on a claim for economic loss.

On 21 May 2013 the Plaintiff was the driver of a vehicle which was stationary and was hit from behind at speed by another vehicle. Liability was not an issue in this matter and proceeded to court on the issue of the quantum of the claim solely.

The plaintiff was 40 years old at time of judgement. He was a qualified teacher and taught PDHPE for a local state high school, on the side he also owned a business with a friend where he would teach swimming lessons to children. It was his intention to continue in the coaching business until his youngest finished school.

It was evident from the medical evidence that the Plaintiffs lower back injury was affecting his ability to work both roles. His Honour quickly dealt with the issue with of the plaintiffs teaching role, indicating that while you cannot say with certainty the amount of time off work that he had that it would be at least eight days annually and that this had a significant impact on his promotion opportunities. And modest buffer of $5000 was made for this loss.

Losses in relation to his swimming coaching business were much more complicated. Not only had the plaintiff been unable to continue to work up to 10 hours per week and the business partners had swapped roles to accommodate the Plaintiff injuries. On top of this the business employed some staff to fill in the time which the Plaintiff was unable to work. This was not uncommon and had been done before in the business.

Further when His Honour forensically looked at the plaintiff’s tax records it showed that the reduction in his ability to work happened a year and half after the accident. More importantly that this did not have a direct impact on the revenue generated by the business. His Honour concluding: “I am inclined to conclude that the real reduction in hours is only recent and this supports my view it is significantly related to lifestyle issues” .

In his concluding remarks His Honour commented that the injuries had affected his ability to continue to coach however the decrease in hours seem to be of lifestyle decisions rather than decisions based on the injuries and the effect symptoms had on him. His Honour ultimately awarded an allowance of $40,000 for future losses and $10,000 for past losses.

Ultimately plaintiffs gamble at court proved to be fruitless with the court awarding less than half of what the plaintiff originally suggested he should obtain.

At Gerard Malouf and Partners we have over three decades worth of experience in valuing assessing and running claims. If you’ve been involved in a motor vehicle accident in Queensland and require representation please do not hesitate to contact our team specialists.

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