This Supreme Court of Queensland decision highlights the
importance of the plaintiff's burden to produce evidence
supporting every head of damage in a claim for personal
The plaintiff cyclist suffered injuries to his lower back and
left knee when he was hit by the defendant taxi driver. Liability
was admitted but quantum remained in dispute.
The plaintiff had worked as a fitter and turner, and had owned
and worked in several bicycle shops. His varied work history made
past and future economic loss the most complicated and contentious
heads of damage. The varying approaches to dealing with this
complex question put forward by the plaintiff and defendant were
Plaintiff's economic loss evidence
The plaintiff relied on the evidence of a chartered accountant
who hypothesised two scenarios. The first assumed that the
plaintiff had been a fitter and turner his whole life. The Court
immediately rejected this scenario as the plaintiff's
pre-accident physical condition was so poor that he was unlikely to
ever be able to work as a fitter and turner.
The second scenario was based on the assumption that the
plaintiff had run a bicycle shop his whole life. The accountant
took the plaintiff's profit from the 2007 financial year and
projected it forward with an increase for CPI. However, as the
plaintiff had suffered a loss in both the 2008 and 2009 financial
years, the accountant contended that the plaintiff was entitled to
recover the difference between the actual loss and the projected
profit plus CPI.
The Court said that this approach was problematic because:
Profit was calculated using expenditures completely unrelated
to his personal earning capacity.
It ignored important factors disclosed in the books for
Most fundamentally, it only demonstrated the lost book profits
and did not show the plaintiff's residual earning
Defendants' economic loss evidence
The defendants called a forensic accountant who approached the
economic loss conundrum from a pre-sale and post-sale perspective.
She determined the plaintiff's loss pre-sale by calculating the
cost of additional labour to undertake duties the plaintiff would
have done himself, had he not been injured. The post-sale loss was
ascertained by calculating the reduction of commercial value in the
claimant's earning capacity resulting from his injuries.
The Court adopted the defendants' approach to calculating
economic loss. The Court made two notable concluding remarks:
When calculating loss, it is necessary to identify both what
capacity has been lost and the economic consequences that flow from
the loss (in accordance with Husher v Husher).
Global awards should only be used in cases where it is not
possible to make a reasonable assessment due to a lack of evidence,
absence of work history or irregular work history.
Claim for gratuitous care
The plaintiff sought damages for gratuitous care provided by his
wife, but the Court rejected the claim because:
Insufficient evidence was tendered to demonstrate that the
plaintiff's wife had satisfied the six hours per week for six
months requirement under section 59(1)(c) of the Civil
Liability Act 2003 (Qld) by being required to exclusively
complete all domestic duties and household chores.
Compensation for ongoing assistance and post-operative care is
only permitted when the assistance, care or presence of the family
member is proven to be of therapeutic value, and no such evidence
was provided in this case.
The decision in CSR Ltd v Eddy forced the Court to
reject the plaintiff's claim for care of his child.
The plaintiff was awarded less for economic loss than he had
sought, and had his gratuitous care claim dismissed. Overall, the
plaintiff was awarded $382,690, which was less than 45% of the
total claimed (which was more than $900,000).
This case confirms the importance of evidence to support every
head of damage in a personal injuries claim.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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