Martin v Andrews & Anor [2016] QSC 020: Back Injury

In the matter of Martin v Andrews & Anor, a moderate back injury resulted in the significant award of $1,272,572.10 compensation to the Claimant – one of the largest awards for an injury of this type.

Background

This was a quantum only motor vehicle case where the Claimant, Joshua Alfred Martin, was 39 years old at the time of his injury. His injuries included a moderate lumbar spine injury and a minor cervical spine injury. Martin had had a long standing career as a fitter/mechanic/linesman electrician, and had expertise specifically relating to high voltage work. Martin was unable to return to his pre-injury employment due to his injuries.

It is interesting to note that the Defendants argued that Martin’s injuries had resolved without significant impairment – a submission that necessarily requires a finding that Martin was maximising his problems. The Defendants argued that Martin had failed to mitigate his own loss by not discharging his residual earning capacity.

However, it was acknowledged by Justice McMeekin that Martin had made several attempts to mitigate his loss in the 5 year period since his injury, including running a family farm (which subsequently failed), and unsuccessfully applying for multiple advertised jobs. Martin also had legitimate aspirations for undertaking tertiary education to become a teacher. All of these factors supported His Honour’s determination of economic loss. His Honour also found that the Defendant’s could not sufficiently demonstrate opportunity for alternative employment for the Claimant.

The Defendant’s relied on video surveillance of Martin at his campsite (which was his residence at the time of trial), as well as a report by an Occupational Therapist stating that Martin had capacity to return to all forms of work. While His Honour found some merit in the video footage in suggesting Martin’s injuries were not as restrictive as claimed, His Honour found the submission that Martin could return to all forms of work as being “illogical”.

Impairment does not equate to disability

Justice McMeekin awarded $400,000.00 in past economic loss and $750,000.00 in future economic loss. At paragraph 111, His Honour set out the three reasons why he found such a significant economic loss for a 5% injury, stating:

“The first 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. The third is that under the Act, for the purposes of assessment of the “whole person impairment” (“WPI”) in relation to an injury, which is used to determine the ISV, the impact on employment is specifically excluded: the dictionary defines WPI as an estimate “…expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform activities of daily living other than employment.”

Other damages awarded for the back injury included

  • $13,350.00 for pain and suffering and loss of amenities of life;
  • $21,398.30 for interest on past economic loss;
  • $93,100.00 for loss of superannuation;
  • $2,000.00 for future expenses; and,
  • $2,723.80 for special damages.

Conclusion

It is relevant to note from this case the importance of distinguishing between impairment and disability – impairment assessments will not always reflect what the Court deems as being the disability faced by a claimant. It is one thing for a claimant to be able to return to work in their residual earning capacity; it is another if the residual earning capacity leaves them only able to carry out work entitling them to a significantly reduced income compared to their pre-injury wage.

Further, the Court weighs heavily on what the claimant has done to mitigate their loss. This case proves to be an important reminder for both parties in a personal injury matter that what happens between the injury and trial is relevant and any argument for or against actions to mitigate loss should be well founded.

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