Roach v O’Meara & Anor  QDC 145
This case deals with the economic loss claim of a professional golfer injured in a motor vehicle accident.
On 27 February 2009 the plaintiff, a professional golfer, was injured when his car was hit on the front right hand side causing it to spin 180°. He sustained neck and back pain and, upon exiting his car, cut his big toe on glass. Liability was not in issue. Quantum was in dispute.
Assessment of General Damages
The court found that the plaintiff’s evidence that he had suffered from intermittent symptoms in his neck and back following the accident - consisting of knife-like pain at the back of his neck and muscle spasms in his lower back and upper back - was consistent with his medical records.
While it was noted that there was a discrepancy between the findings on examination of Dr Pentis and Dr Dickinson, these were explained by the intermittent nature of the plaintiff’s symptoms. Under cross-examination, Dr Pentis said as follows:
“The problem is whenever you see someone with a soft tissue injury, they may not be the same each time you see them. Unless you have had a very major injury, your symptoms will wax and wane, therefore your signs will vary.”
The plaintiff’s dominant injury was found to be his minor cervical spine injury prescribed by Item 89 of the Civil Liability Act 2003.
An uplift for the adverse impact of the multiple injuries on the plaintiff was considered warranted and he was awarded $5,000 for general damages.
Assessment of Economic Loss
As for economic loss, the plaintiff sought global awards for both past and future economic loss.
At the time of the accident the plaintiff had completed the course requirements to be a professional golfer. He gave evidence that his performance in golf tournaments, both before and after the accident, had been disappointing. The evidence was that he was playing considerably less golf than before the accident and that by playing less golf it gave him less opportunity to associate with members of the golf club, identify problems with their game and market his lessons. The court noted that the plaintiff attended work on the day of the accident and did not require time off work as a consequence of his injuries.
In assessing economic loss, the court had regard to s.55 of the Civil Liability Act 2003, that it must be “satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.”
Reference was made to the Court of Appeal decision in Reardon-Smith v Allianz Australia Insurance Ltd  QCA 211 and to loss of a chance of future events occurring as laid down in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. In valuing the loss of a chance of a benefit, “there must be an assessment of the degree of likelihood that a hypothetical event affecting the quantum of recoverable damages would have occurred and the adjustment of the award to reflect that likelihood.”
In this instance the court held that the plaintiff’s income to date had steadily increased over time. The court was not convinced that the plaintiff would have been a successful player on the professional or semi-professional golf circuit either in the past or in the future.
A small allowance was made for the lost opportunity to generate further income from golf lessons as this was not speculative. The court also allowed a global sum of $40,000 for future economic loss on the basis of s.55 of the Civil Liability Act 2003.
- Discrepancies in expert medical evidence may be explained by the intermittent nature of symptoms and reference should therefore be made to the plaintiff’s medical records
- In assessing economic loss, s.55 of the Civil Liability Act 2003 should be referred to and notice taken of the principle of loss of a chance of future events occurring
A copy of the Judgment can be found here.