In the recent decision of Martin v Andrews & Anor  QSC 20 handed down on 19 February 2016, Justice McMeekin awarded $1,282,572.10 in a quantum only motor vehicle case. The Plaintiff was 39 years of age at the time of accident and 44 at the time of trial. It was accepted that he had sustained a moderate lumbar injury and a minor cervical spine injury.
The Plaintiff was an experienced and qualified electrical fitter/mechanic/linesman with expertise in high voltage work. Following this accident he did not return to his previous employment which the Plaintiff attributed to his injuries. He did attempt to make a living running a family farm but that failed and the farm was sold by the bank. His Honour noted various advertised positions which the Plaintiff applied for which came to nought. He noted the Plaintiff's aspirations of retraining by way of tertiary study.
It is clear His Honour thought the Plaintiff a genuine witness given the level of detail he descended into with respect to his observations of the Plaintiff's body language/movements during the trial. His Honour also dismissed any 'silver bullet' in surveillance obtained prior to trial which showed the Plaintiff moving about his campsite (the Plaintiff was of no fixed address by trial). However, he did accept that the surveillance suggested the Plaintiff's objective restrictions were not as significant as the Plaintiff's subjective reporting.
His Honour found no merit in the evidence of Ms White, Occupational Therapist, engaged by the Defendant. Put simply, she was of the view that because of certain tests the Plaintiff performed in clinical examination, he had the capacity to return to all manner of work. He went on:
The third is that she seems to have formed her views without a detailed knowledge of the physical demands that Mr Martin's previous employment entailed, an essential pre-requisite, I would have thought, to an opinion that he could carry out that work.
His Honour noted Ms White's views were at odds with every other expert and found her opinion "illogical" and then this finding was made:
So Ms White is alone in her opinions. That is not fatal of course - witnesses are to be weighed not counted..
Put simply, His Honour found that the tests that were performed by Ms White did not translate to sorts of activities the Plaintiff would be expected to perform in the workplace.
General damages were assessed modestly at $13,350.00. Economic loss is clearly where the Defendant lost traction with Court. His Honour rejected the Defendant's submissions that the Plaintiff had failed to mitigate his own loss by not discharging a residual earning capacity.
The Court found that the Plaintiff had little residual earning capacity and the Defendant failed to demonstrate potential alternate employment open to the Plaintiff. The Defendant did not meet the onus of proof required to successfully mount a “failure to mitigate” argument. Respectfully, attempting to argue the Plaintiff by deliberate strategic means let a bank take his farm (by failing to return to work) was always going to be a difficult task before the Central Judge.
An award of $330,000 was made for past economic loss and $750,000 for future economic loss. Critically, His Honour highlighted how a 5% impairment could translate to such significant awards for economic loss in this way:
Some might think that the modest impairment of 5% seems out of keeping with the findings as to the consequent very significant economic loss...The first [thing] is the substantial earning capacity enjoyed by Mr Martin before he was injured. The second is that "impairment" does not equate to "disability" ie the actual impact of the condition on the individual…
His Honour went on to note that the regime under the Civil Liability Act 2003 (Qld) placed greater weight on the percentage impairment for the purpose of assessing ISVs rather than for the assessment of economic.
His Honour assessed future superannuation at 10.15% noting the varying rates of superannuation payable over the remaining 16 years of the Plaintiff’s working life and adding that this “…approach gives an air of precision to an exercise that is anything but precise”.
The Court made no allowance for claimed costs of retraining into a teaching role. Interestingly, the award for past special damages was a mere $2,723.80 and future special damages assessed equally modestly at $2,000.00.
This case highlights that if a Defendant (in any arena) hopes to run a failure to mitigate case then they must come to the Court with sufficient evidence to support that view and something more than mere supposition.
This case also highlights that the old chestnut of "impairment v disability" in certain cases can have catastrophic effects on the assessment of quantum.