Published 22 Jan 2018
Practice Area: Motor Vehicle Accident Injury Lawyers
The Plaintiff in these proceedings, Mr Thuong was involved in a motor vehicle accident on 22 July 2015 when the vehicle he was travelling in collided with the First Defendant’s vehicle. Liability was not an issue in this matter and the insurer (the second defendant) acknowledged that the first defendant had breached his duty of care and had caused the accident.
The issue in this matter was that at the date of the accident the Plaintiff was working as a retail assistant and continued working after the accident. The insurer disputed the extent of the plaintiff’s injuries and the extent of his recoverable damages because he had returned to his pre-injury employment after the accident.
The Court took into consideration that it is necessary of the Plaintiff to show that the injuries sustained in the subject accident will interfere and impact his ability to work and diminish his earning capacity.
The Defendant in their submissions provided that following the car accident, the Plaintiff did not take any time off from his casual employment and he did return to work. The Defendant referred to the employment records as evidence which indicated that the Plaintiff had only taken four days off from work after the accident. For this reason, the insurer disputed the basis of the Plaintiff’s claim for past economic loss and impairment of future earning capacity.
The Plaintiff acknowledged that he did return to work following the accident, however his performance and ability to work was affected by his injuries, in particular his neck and lower back pain. The Plaintiff submitted that following the accident he was unable to do certain shifts where there was work involved that would increase his levels of pain and discomfort. For example, he did not work on days where there were deliveries compromising of about 300 cartons of beer because he was unable to place them on the floor and put them in the store rooms and the shelves. To address this issue the Plaintiff scheduled his shifts on days that did not have deliveries and notified his manager of his restrictions. As a result of this, the Plaintiff asserted that he suffered a loss of earnings because his employer cut his shifts, and as a casual worker he was not paid a wage if he did not work.
The Plaintiff’s manager was called to give evidence and noted that prior to the accident, the Plaintiff did not have any difficulties performing his duties but after the accident he noticed a change in the plaintiff’s performance and he complained about ongoing pain. For this reason he continued to employ the Plaintiff but accommodated to his needs.
In his Judgement, His Honour found that the Plaintiff was a credible witness and he did suffer injuries that impacted his capacity to carry out his pre-injury employment duties. His Honour at paragraph  accepted that the Plaintiff’s “decline in income is attributed to the Plaintiff having to vary his shifts in such a way as to avoid those shifts which required heavy lifting and bending so as to accommodate his injuries”. His Honour rejected the defendant’s submissions that “this decline in income can be explained merely by virtue of normal fluctuations in the shifts taken by causal workers or by the Plaintiff’s self-employment aspirations”. His Honour noted that he was “satisfied that because of his injuries, the Plaintiff was selective in the shifts he undertook and that this resulted in monetary loss”.
His Honour also took into consideration any further past economic loss the Plaintiff suffered as a result of not being able to grow his online website. This website had only been in its early stages of development and the Plaintiff was only earning approximately $100.00 a month from this project. The Plaintiff in his submissions argued that he had difficulty sitting for any length of time at a computer and sought damages for impairment of future earning capacity based on a projected income loss from his website. His Honour did not accept the Plaintiff’s submissions, explaining that the website is high speculative as to any earnings which may flow form it. His Honour was not prepared to assess damages by reference to that speculative venture. Instead, His Honour only took into consideration when calculating the damages the impairment of future earning capacity by reference to the impact his injuries had the Plaintiff’s ability to work his pre-injury employment.
In light of the evidence and submissions made by the Plaintiff, the Court awarded damages in the amount of $127,610.97 in favour of the Plaintiff as follows:-
|Past Economic Loss||$7,000.00|
|Interest on Past Economic Loss||$171.37|
|Impairment of Earning Capacity||$100,000.00|
|Future Treatment and Medication Expenses||$5000.00|
|Out of Pocket Expenses||$734.60|