…quantum of damages – global claim – vicissitudes – calculation of damages
The plaintiff was involved in a motor vehicle accident in the Australian Capital Territory on 16 October 2017.
The plaintiff’s vehicle was hit whilst stationary at a set of traffic lights by the first defendant’s vehicle, which was estimated to be going 30 kilometres per hour.
The plaintiff previously suffered from fibromyalgia, which she alleged was asymptomatic at the time of the accident. The plaintiff commenced proceedings against the first and second defendant for damages suffered as a result of the injuries sustained in the accident.
Liability was conceded by the defendants. The issue in the proceedings was the appropriate quantification of damages. The plaintiff was seeking $972,914 (plus costs) in damages, whereas the defendants submitted that $193,599.02 was appropriate.
Decision
The court awarded damages to the plaintiff as follows:
| General damages | $120,000 |
| Interest on general damages | $6000 |
| Past out-of-pocket expenses, including interest | $15,533 |
| Past domestic assistance, including interest | $8000 |
| Future domestic assistance (adopting a rate of $51.09 per hour) | $79,555 |
| Future expenses | $40,699 |
| Past economic loss, including interest at 9% | $42,875 |
| Past loss of superannuation | $3850 |
| Future economic loss | $175,000 |
| Future loss of superannuation | $19,250 |
| $510,762 |
Ratio
The judge found the plaintiff to be a compelling and truthful witness, who made appropriate concessions when giving evidence and did not exaggerate her condition. The judge accepted the plaintiff’s evidence that she was not experiencing any significant symptoms from her fibromyalgia in the lead up to the accident, nor did it impact her day-to-day life or work capacity.
The judge accepted the plaintiff’s evidence that her pre-accident, asymptomatic fibromyalgia had become symptomatic as a result of the accident, to the point that she was constantly having flare-ups and intense periods of pain.
The court preferred the evidence of Professor Champion (who assessed the plaintiff pursuant to a biopsychosocial assessment, rather than a biomedical assessment) that the plaintiff’s fibromyalgia was managed prior to the car accident, and that the accident was the major factor influencing her flare-ups.
The judge found Professor Champion’s evidence to be consistent with the plaintiff’s and her general practitioner’s, Dr Ali. With respect to Dr Ali’s notetaking, the court accepted her evidence that general practitioner notes will not always reflect chronic conditions which patients are dealing with, and which are affecting their quality of life, because their presenting and predominant issue on any particular day is what requires attention.
The judge assessed the plaintiff’s past and future economic loss on a global basis, with appropriate reductions due to part of the plaintiff’s time off work or reduced hours being related to non-compensable factors. The judge held it was not possible to take a purely mathematical approach to economic loss in the circumstances, and this is not always appropriate.
The judge applied only a standard 15% discount on future economic loss for vicissitudes, as no evidence was presented to allow an estimate be calculated – on the likelihood that this condition would otherwise have become symptomatic, but for the accident.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Rachel Last, is a Senior Associate. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.
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