In the case of Ingersole v Nancarrow & Anor  QDC 315 the District Courts decision illustrates the application of s55 (3) of the Civil Liability Act 2003 (Qld) where earnings cannot be precisely calculated for personal injuries.
The Plaintiff was involved in a motor vehicle accident with the first defendant where his vehicle was struck in the rear which resulted in his vehicle being thrust forward. The Plaintiff made a claim for personal injury for the pain to his hip and lower back. According to the Plaintiff, the injury resulted in a slight change in his career as he took up a facilitator and assessor role in the Health and Physical Education teaching field.
The Plaintiff who managed two swim schools “Fast Lane Swim Club” and “Aqua Champs” claimed that his working hours and job role particularly at “Fast Lane” had been affected as a result of the accident and aggravation on his back.
The Decision – What a claim worth is, when earnings cannot be calculated?
Judge Reid considered the following important findings:
- The examination of the Plaintiff’s tax returns,
- The consideration of his lifestyle,
- The evidence given by his partner
- His Honour’s assessment of the Plaintiff
Judge Reid concluded that after analysing the Plaintiff’s tax return, the Plaintiff’s Fast Lane partnership showed that he was financially successful. The Judge found that whilst the Plaintiff did have lower back pain resulting from the accident, this was not the only contributing factor toward the reduction of working hours.
The judge was unable to calculate precisely a weekly loss for the past or future loss as a swimming coach. His Honour considered s 55 of the Civil Liability Act 2003 (Qld) (CLA) when quantifying damages:
s55: When earnings cannot be precisely calculated
- This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
- The court may only award damages if it is 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.
- If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
- The limitation mentioned in section 54(2) applies to an award of damages under this section.
We look at two references by Judge Reid in this case:
1. Justice Fryberg in Allianz Australia Limited v McCarthy  QCA 312 where the terms ‘assumption’ and ‘methodology’ under s 55 (3) of the CLA were more likely to have been intended to refer to “assumed facts underlying one or more hypothetical calculations which a judge might use in order to get a general idea of what might constitute a suitable global figure.”
Justice Fryberg likened methodology in this context to ‘an experienced guess’ to be “dissected in a manner appropriate to the circumstances of the case in order to understand what it might imply in those circumstances and thereby to confirm that the figure is of an appropriate order of magnitude”.
2. Reardon-Smith v Allianz Australia Insurance Ltd  QCA 211 where it was agreed that “section 55 (3) is concerned to ensure that the assessment of damages proceeds in a manner which is sufficiently transparent that the basis of the decision is apparent, both to the parties and to an appellate court.”
In conclusion, Judge Reid found the Plaintiff had ongoing symptoms from the accident that aggravated pre-existing symptoms of lower back pain, thus the change in the plaintiff’s work, as it affected the advancement of his teaching career.
The overall decision by his Honour noted that the advancement of the Plaintiff’s career was influenced by his desire to conduct a swimming school after hours, which limited his capacity to engage in activities for the school outside of teaching hours.
The Judge awarded a small sum in respect of future earnings due to lack of evidence of extra income which might have been earned or a later promotion in his career.
His Honour also found that the Plaintiff was materially affected by his physical ability to coach swimming, and worked less hours than prior to the accident. The Plaintiff was found to have mitigated his losses by changing to squad training instead of his preferred ‘learn to swim’ classes which required less physical strain from the poolside. Therefore, Judge Reid allowed for future and past loss on his earnings on his partnership as swim teacher.
This case illustrates the court’s approach where earnings cannot be precisely calculated by reference to weekly loss. In practice where no quantifiable loss is present, a court will make an experienced guess to grant an award for future economic loss to a claimant.
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