Keywords
Damages – assessment of damages in tort – income loss and loss of earning capacity – where the plaintiff was involved in a motor vehicle accident – whether the plaintiff suffered injury and damages in the motor vehicle accident.
Facts
The plaintiff was injured in a motor vehicle accident on 19 March 2022 in Bundaberg. He was 19 at the time of the injury and 22 at the time of trial. Liability was admitted. At trial, the key issues were whether the plaintiff was injured, the extent of the injury, and the quantification of damages. The first issue was conceded by the defendants following compelling evidence from the plaintiff and his witnesses.
The accident occurred when a Subaru Impreza, fleeing police at high speed, attempted to overtake the plaintiff’s Subaru WRX and collided with its driver’s side. The crash caused severe damage, with the WRX hitting a gutter and a fence.
After the accident, the plaintiff declined ambulance care due to minimal perceived pain and had a strong personal aversion to medical treatment.
At his first GP visit on 25 March 2022, six days after the crash, it was noted that he was quiet and reported feeling well. He did not disclose any physical symptoms. The GP’s notes mentioned “head hit back of chair but nil other injury.”
The primary concern at this initial consultation was an increase in the plaintiff’s anxiety following the accident. However, later evidence revealed ongoing neck, shoulder and upper back pain, along with headaches. These injuries impacted his ability to work for his father as a carpenter.
It was not until 16 January 2023 that he again returned to the GP to complain of his physical symptoms. It was submitted that his limited medical visits reflected his long-standing anxiety, not a lack of injury.
Decision
Crow J, decision delivered on 22 May 2025. Judgment for the plaintiff against the second defendant for $602,008.14.
Ratio
His Honour considered the plaintiff to be an impressive witness who gave a truthful account of the accident, the symptoms he suffered, and the difficulties he experienced at work.
In relation to general damages, the plaintiff’s dominant injury was a moderate cervical spine (soft tissue) injury, assessed at an ISV of 10. He also sustained a minor upper thoracic spine injury and a right shoulder injury that resolved after 18 months.
Headaches were found to result from the neck injury. Given his ongoing daily pain at age 22 and multiple injuries, a 25 per cent uplift was justified, resulting in a general damages award of $24,370, based on a 13 per cent whole person impairment.
The plaintiff’s claim for past economic loss was calculated on the basis that employment records before the accident showed he was consistently being paid for 34 hours per week (although the evidence at trial was that he worked longer hours). The plaintiff’s father was his employer.
Following the accident, the plaintiff took time off work regularly to manage his symptoms. His weekly hours reduced to an average of 11 hours per week in the months immediately following the accident and then increased to an average of between 25–28 hours per week. In the year before the trial, he was working as an independent contractor for his father, earning $45 per hour and averaging about 33.9 hours per week.
His Honour accepted the plaintiff’s claim of $37,652.74 as the loss of income for each relevant period. His Honour noted this was conservative and did not account for the plaintiff’s evidence that he was working 40–50 hours per week before the accident.
For future economic loss, it was accepted that the plaintiff was unable to work full-time and that his work duties exacerbate his neck symptoms and cause him significant pain, resulting in a current loss of one to two days of work per week. His Honour noted evidence that well-qualified tradespersons earn between $60 and $100 per hour, with carpenters currently at around $70 per hour. He stated that the plaintiff’s economic capacity should not be measured by his current earnings, as few individuals reach their full earning potential by age 22.
His Honour assessed the plaintiff’s pre-injury earning capacity based on working 45 hours per week at a rate of $65 gross per hour, totaling $2925 gross or approximately $2055 after tax per week. Due to his injuries, he is estimated to have lost 30 per cent of his work capacity, equating to a weekly loss of $617. Over 45 years (to age 67), this amounts to $586,150. After applying a 10 per cent contingency, the amount for future economic loss was awarded at $527,535.
In relation to future treatment, His Honour indicated that he would be willing to award one physiotherapist visit per month at a cost of $100 for the remainder of the plaintiff’s life (61 years) however, he was constrained by the pleadings to an award of $4000.
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