Published 29 Jan 2018
Practice Area: Motor Vehicle Accident Injury Lawyers
The Plaintiff in these proceedings was the front seat passenger in a vehicle being driven by her friend when they were involved in a motor vehicle accident. As the Plaintiff’s friend was travelling down a main road, the first defendant was driving in the opposite direction when he suddenly veered to the right and crossed over the raised median strip and into the path of the vehicle the Plaintiff was in. As a consequence both vehicles collided.
The Plaintiff’s friend later died as a result of the injuries she sustained, while the Plaintiff was trapped in the vehicle and the Queensland Fire and Rescue Service were required to attend the accident scene to cut her out of the vehicle. As a result of the accident the Plaintiff suffered a major depressive disorder, an injury to her lower back and an injury to her right knee.
Proceedings were brought against the driver (first defendant) and the CTP insurer (second defendant) of the vehicle at fault. Liability was admitted in this matter however the issue to be determined by the District Court was the nature and extent of the injuries caused by the motor vehicle accident and whether or not the Plaintiff suffered a loss of earning capacity by reason of her injuries.
The Plaintiff in her submissions provided that she had the intention of returning to the workforce in early 2014, approximately a year following the birth of her second child. However as a result of the accident she was unable to do this and remained unemployed.
The Defendants in their submissions did not think that the Plaintiff had suffered a monetary loss as a result of the accident because her intention was to remain at home caring for her young family. Alternatively, the Defendants submitted that if the court was to accept that the Plaintiff intended to return to work, her loss would not be significant because she did have an earning capacity.
His Honour noted at paragraph  that:
“The Plaintiff must establish not only that she has suffered a loss of earning capacity, but also that the loss of earning capacity is or may be productive of financial loss”.
His Honour took into consideration the Plaintiff’s circumstances and accepted her evidence that she had the intention to return to work following her second child’s birth. His honour at paragraph  to  said:
“She gave evidence, which I accept, that she was keen to get back into work in the year following the birth of her second child, as she had always been a hard worker. She said that she enrolled in a hairdressing course in July or August 2014. She was not able to complete the course. She said that she got 6 months into the course and had trouble concentrating and she was unable to complete her first practical examination due to her pre-existing carpal tunnel syndrome.”
“The plaintiff had experience in the retail sector, but she said she was fearful that she would not be able to deal with customer complaints. Another indication that the plaintiff was intending to return to paid employment is that she did actually apply for position at Woolworths.”
His Honour accepted that based on the evidence provided by the Plaintiff, that had it not been for her injuries she sustained in the accident, she would have returned to at least part-time employment in early 2014.
The Defendants relief on the Report of Wayne Johanson, the manager of Job Placement Services Pty Ltd. Mr Johanson considered that the plaintiff had gainful skills and experience in the retail sector, however noted that the labour market was dominated by junior employees because of the low rates of remuneration for workers under the age of 21. It was considered that if the Plaintiff was to disclose her injuries to a prospective employer, she would not be as ”competitively employable” as a person without such impairments.
His Honour at paragraph  to  accepted that the Plaintiff will “suffer financial loss having regard to her age, work history and the nature of her physical and psychological limitations” and took into consideration the following factors:-
- The plaintiff’s age;
- The plaintiff physical and psychological injuries and ongoing disabilities and the impact it will have on her to maintain employment;
- If the plaintiff is likely to respond to treatment and achieve remission of her depressive illness;
- The disadvantage she faces on the open labour market because of her psychological and physical impairments;
- If the plaintiff’s psychological condition will improve considerably with the benefit of counselling and If she should be in a position to resume employment in the foreseeable future;
- If the plaintiff’s minor physical injuries will not prevent her from returning to employment.
In light of the above reasoning, the Court awarded damages in the amount of $185,821.05 in favour of the Plaintiff, which included an amount for general damages, past and future economic loss, past and future superannuation loss, special damages and future out-of-pocket expenses.