Thuong v Liu & Anor [2017] QDC 196 is a recent Queensland District court decision where liability had been established and the calculation of damages for past economic loss and future earning capacity was in dispute.
The incident
Mr Thuong (“the plaintiff”) was driving his vehicle on Padstow Road, Eight Mile Plains when his vehicle collided with the first defendant’s. As a result, the plaintiff suffered whiplash injury to the spine, and central neck pain and stiffness.
The Plaintiff resumed working at his place of employment, a bottle shop, where his injuries were subject to aggravation. The plaintiff submitted that he did not take time off work as he was unable to afford to do so working on a casual basis.[1] Evidence was given that his pain from his injuries were aggravated by the daily tasks undertaken at his employment in the bottle shop and in development of a website, such as heavy lifting and bending, computer work and reading.[2] Further evidence was submitted that his concentration levels were affected, static posturing would be difficult and he decreased in efficiency in his work as more breaks were required to undertake tasks.
Determination of damages
Although the plaintiff did not take any time off work following the incident, the basis for this claim relates to the plaintiff’s inability to perform the same duties and carry out the same shifts as he did prior to the accident, which resulted in general damages, damages for past economic loss and impairment of future earning capacity.
General damages
Mr Thuong was examined by two of his doctors who concluded he had two spinal injuries, a moderate cervical and minor lumbar spine injury. One expert established that the plaintiff suffered a two per cent Whole Person Impairment (“WPI”)[3] and another established five per cent WPI.[4] The medical evidence communicated that the plaintiff suffered neck pain and stiffness from his injury, aggravation from his daily work tasks, restriction in his running and cycling activities and significantly decreased range of movements. The Court found that the plaintiff’s dominant injury was his moderate cervical spine injury with an ISV value of 9. As a result of this finding, he was entitled to $14,040 for general damages
Past economic loss
In determining past economic loss, the court considered the plaintiff’s decline in income to be attributed to him having to work selective shifts which avoided heavy lifting and bending to accommodate to his injuries.[5] The court did not see the selective shifts as normal shift fluctuations, as the defendant’s submitted, but linked them to the plaintiff’s injury. In assessing the amount of damages, the Court observed what the plaintiff’s actual earnings would have been if not for the accident and what the plaintiff’s earnings were currently, and arrived at a loss figure to award him. Within this figure, the Court included an appropriate discount for discretion that the shortfall may not be entirely attributable to the plaintiff’s motor vehicle injury. Considering these factors, the court arrived at a figure of $7,000 for past economic loss.
Impairment of future earning capacity
In addition to the plaintiff’s main place of employment, the bottle shop, the plaintiff’s other income involved developing an online website operating within Australia and overseas. His ability to undertake this activity was compromised by the nature of his injuries. The Court accordingly calculated the impairment of future earning capacity by reference to the impact his injuries had on his ability to work and their diminishing effect on his working capacity. To arrive at a figure for this head of damage, the Court took into consideration the plaintiff’s remaining working life of 37 years and applied the shortfall that was $149 per week, which was a result of his average weekly earnings pre-accident and his most recent average weekly earnings. With a discount taken into consideration for future contingencies, the Court produced a figure of $100,000 for impairment of earning capacity.
Implications of this decision
This motor vehicle accident case explores the technicalities used when assessing the quantum of damages where the injuries are aggravated by the tasks of employment and have an effect on future earning capacity.
[1] Thuong v Liu & Anor [2017] QDC 196 at [9]
[2] Ibid.
[3] Ibid at [11].
[4] Ibid at [17].
[5] Ibid at [61].
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