Low permanent impairment may not equate to low damages

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In Martin v Andrews and Anor [2016] QSC 020, the court awarded future economic loss of $750,000 to a person who had been assessed as having a five per cent whole person impairment, despite the fact that an occupational therapist believed the claimant could work at full capacity until retirement age and surveillance footage showed the plaintiff mobilising without apparent difficulty.

The court took the view that the impact of the injury was more significant than simply the degree of assessable impairment. This case has implications for defendants, in that a low degree of permanent impairment will not necessarily equate to a small award of future economic loss damages.

Facts

The plaintiff was injured in a motor vehicle incident on 1 July 2011. Prior to the incident, the plaintiff had been employed as an electrical fitter.

The plaintiff sustained soft tissue injuries to his neck and lower back, as well as a minor disc extrusion.

After the incident, the plaintiff lived a predominantly nomadic lifestyle in caravan parks and camping. Evidence indicated that the claimant's injuries were improving and an occupational therapist considered that the plaintiff was able to return to work.

It was argued that the reason the plaintiff had not returned to work was due to the fact that he no longer had a car, he had lost motivation to return to work and that he had planned on using any court award to pay off his debts. It was not contested that the plaintiff had not engaged in any treatment for some time.

Findings

The court found that there was corroborating evidence recorded by the Clermont Hospital and later the Rockhampton Hospital to substantiate the injuries claimed by the plaintiff. Surveillance footage failed to show any activities that the plaintiff had stated he could not perform.

The court took the view that the plaintiff most likely did not experience constant pain, but rather experienced pain when he attempted more difficult tasks. The trial judge apportioned an injury scale value of eight, despite evidence from two orthopaedic experts that the plaintiff’s whole person impairment was only 5 per cent (although the experts disagreed about the form that the injury took).

The court found that the plaintiff had attempted to obtain employment, but by his lack of financial resources, the plaintiff was unable to buy a car which would have increased his ability to work. The court felt that the plaintiff could not be said to have failed to mitigate his loss.

The court ultimately found that but for the incident, the plaintiff would have most likely continued to earn a substantial sum, but that he was likely to be precluded in some way from earning that into the future due to his injuries.

The case concluded that ‘impairment’ as a concept cannot be equated to the level of disability that is the degree to which the condition impacts on the plaintiff. Further, the impact of the condition on a plaintiff's ability to engage in employment is excluded from any assessment.

Implication

The implication of this case is that even if a percentage of assessable permanent impairment is low, it does not necessarily mean that economic loss will be minimal, particularly if a plaintiff had been earning a substantial sum prior to being injured.

Author: Michael Sheppard