Australia: Personal injuries case update: evidence

Last Updated: 5 May 2013
Article by Lana Head

Land v Dhaliwal and Anor [2012] QSC 360

This Supreme Court of Queensland decision highlights the importance of the plaintiff's burden to produce evidence supporting every head of damage in a claim for personal injuries.

The plaintiff cyclist suffered injuries to his lower back and left knee when he was hit by the defendant taxi driver. Liability was admitted but quantum remained in dispute.

Economic loss

The plaintiff had worked as a fitter and turner, and had owned and worked in several bicycle shops. His varied work history made past and future economic loss the most complicated and contentious heads of damage. The varying approaches to dealing with this complex question put forward by the plaintiff and defendant were compared.

Plaintiff's economic loss evidence

The plaintiff relied on the evidence of a chartered accountant who hypothesised two scenarios. The first assumed that the plaintiff had been a fitter and turner his whole life. The Court immediately rejected this scenario as the plaintiff's pre-accident physical condition was so poor that he was unlikely to ever be able to work as a fitter and turner.

The second scenario was based on the assumption that the plaintiff had run a bicycle shop his whole life. The accountant took the plaintiff's profit from the 2007 financial year and projected it forward with an increase for CPI. However, as the plaintiff had suffered a loss in both the 2008 and 2009 financial years, the accountant contended that the plaintiff was entitled to recover the difference between the actual loss and the projected profit plus CPI.

The Court said that this approach was problematic because:

  1. Profit was calculated using expenditures completely unrelated to his personal earning capacity.
  2. It ignored important factors disclosed in the books for resulting losses.
  3. Most fundamentally, it only demonstrated the lost book profits and did not show the plaintiff's residual earning capacity.

Defendants' economic loss evidence

The defendants called a forensic accountant who approached the economic loss conundrum from a pre-sale and post-sale perspective. She determined the plaintiff's loss pre-sale by calculating the cost of additional labour to undertake duties the plaintiff would have done himself, had he not been injured. The post-sale loss was ascertained by calculating the reduction of commercial value in the claimant's earning capacity resulting from his injuries.

The Court adopted the defendants' approach to calculating economic loss. The Court made two notable concluding remarks:

  1. When calculating loss, it is necessary to identify both what capacity has been lost and the economic consequences that flow from the loss (in accordance with Husher v Husher).
  2. Global awards should only be used in cases where it is not possible to make a reasonable assessment due to a lack of evidence, absence of work history or irregular work history.

Claim for gratuitous care

The plaintiff sought damages for gratuitous care provided by his wife, but the Court rejected the claim because:

  1. Insufficient evidence was tendered to demonstrate that the plaintiff's wife had satisfied the six hours per week for six months requirement under section 59(1)(c) of the Civil Liability Act 2003 (Qld) by being required to exclusively complete all domestic duties and household chores.
  2. Compensation for ongoing assistance and post-operative care is only permitted when the assistance, care or presence of the family member is proven to be of therapeutic value, and no such evidence was provided in this case.
  3. The decision in CSR Ltd v Eddy forced the Court to reject the plaintiff's claim for care of his child.

Orders

The plaintiff was awarded less for economic loss than he had sought, and had his gratuitous care claim dismissed. Overall, the plaintiff was awarded $382,690, which was less than 45% of the total claimed (which was more than $900,000).

This case confirms the importance of evidence to support every head of damage in a personal injuries claim.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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