How has COVID-19 impacted assessment of economic loss?

February 22, 2021

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Legal Interest

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Peta Miller

Smith’s Lawyers solicitor Peta Miller has written a case review regarding a recent motor vehicle decision in Southport District Court in the matter of Hariharan v Vojtisek & Anor [2020] QDC 276.

Background

On February 15, 2017, Balasubramanyam Hariharan (the plaintiff) was involved in a motor vehicle accident when his car was struck from the passenger side by a vehicle driven by Evelyn Vojtisek (the first defendant) when she ran a red light.

Mr Hariharan suffered neck injuries that were diagnosed as a generalised musculoligamentous; and/or soft tissue injury to the cervical spine; and an aggravation of mild pre-existing degenerative changes to the cervical spine. He claimed that the pain from the injuries was ongoing which caused problems for his work as a folder machine operator.

Ms Vojtisek’s insurer, Allianz, accepted full liability for the incident, but the case still went to trial over a dispute about the quantum of Mr Hariharan’s case, specifically relating to the damages regarding the claims for past and future economic loss, which Judge Kent QC described as complex.

Decision of the District Court

In terms of the medical evidence, there was significant dispute between the evidence given by Dr Cook, Orthopaedic Surgeon, who evidence was relied on by the plaintiff and that Dr Dickinson, who was briefed by the second defendant. When giving evidence, Dr Cook opined that any pre-existing degeneration suffered by the plaintiff was asymptomatic and not impacting his ability to work at that time.

As such, Dr Cook opined that the plaintiff suffered a 5% whole person impairment and was not fit to return to his pre-injury role or any role that involved heavy or moderately heavy work if it involved constant or repetitive bending, lifting, carrying, working in awkward or confined spaces, or operating vibrating tools as a result of the subject incident.

By way of comparison, Dr Dickinson opined that despite the plaintiff’s pre-existing condition not being symptomatic prior to the incident, all of the plaintiff’s neck problems related solely to that pre-existing condition. As such, Dr Dickinson opined that the plaintiff suffered no whole person impairment as a result of the incident and that the plaintiff could return to his pre-injury role, despite it involving heavy manual handling tasks.

In light of this divergent medical evidence, the Court preferred the evidence of Dr Cook as it had “more logical force” and was “consistent with the objective facts” of the case. For these purposes, the Court noted the following at paragraph [72]:

The difficulty with Doctor Dickinson’s opinion is that, as it was demonstrated in cross-examination, it attributes the plaintiff’s problems, which I accept are ongoing, to the pre-existing degenerative changes rather than the (on any view of the events, significantly forceful, side-on) collision. As was advanced in cross-examination, this opinion posits that the previously asymptomatic plaintiff, a good, consistent and diligent worker, went from a position of having no symptoms to significant, ongoing and restricting pain and stiffness, such that he could no longer continue in his longstanding and desired occupation, on what appears to be a permanent basis merely because of the materialisation of the previously asymptomatic condition; and that the forces involved in the accident played no causal role in this, despite the symptoms only manifesting after the accident.

In addition to addressing the divergent medical evidence, the Court was required to consider the plaintiff’s intentions regarding future employment and his residual earning capacity. This is because at trial the plaintiff alleged that, prior to the incident, he had intended to divide his time equally between India and Australia; however, due to the incident, he returned to India and was unable to pursue the higher level of income he would have been entitled to had he remained in Australia.

For these purposes, the Court formed the view that an equal distribution of time was unlikely to be plausible but accepted an alternative submitted by the plaintiff that he would have been able to work in India for ten months each year and return to Australia for the remaining two months during busy times and work on a casual basis.  

In reaching the decision, the Court was impressed by the plaintiff’s evidence and formed the view that he was an honest and reliable witness, not prone to exaggeration and prepared to make reasonable concessions. As such, the Court assessed the plaintiff’s past economic loss as $82,450.00 plus interest and loss of superannuation while the plaintiff’s future economic loss was assessed at $152,373.00 plus loss of superannuation.

In light of the above, the Court found in favour of the plaintiff and awarded a total sum of $269,840.64 with respect to injuries the plaintiff sustained during the subject incident.

Commentary

It is important to note that the Court did take into account the impact of COVID-19 on the plaintiff’s ability to exercise his earning capacity and by extension his past and future economic loss. This was because the Court accepted evidence presented at trial that employment opportunities in the metal working industry, in which the plaintiff was employed at the time of the incident, had been greatly reduced by the current pandemic.

As such, it appeared likely that the plaintiff’s ability to exercise his earning capacity in either Australia or India in recent times would have been drastically reduced in any case. Further, the Court noted that the impact of the pandemic would likely impact the plaintiff’s ability to move between India and Australia as freely as intended.

Consequently, the Court found that the plaintiff had no quantifiable economic loss for a period of nine months from early February 2020 until the date of the judgment in October 2020 and for a further period of 12 months stretching to late October 2021 (i.e. a total of 21 months) by reason of the pandemic.

As such, this decision does highlight of particular consideration of how the COVID-19 pandemic may have or continue to impact the particular industries in which our clients were employed at the times of their injuries, particularly if these injuries were sustained prior to February 2020.

It may be important to speak to both clients, co-workers and their employers, wherever possible, about the impact of COVID-19 has had on their industry and the availability of work to determine whether any concessions need to be made for the purposes of quantifying economic loss.

Peta Miller

A finalist for the Women Lawyers Association of Queensland's (WLAQ) Emergent Woman Lawyer of the Year in 2017 and Solicitor for the past seven years, Peta has worked exclusively in compensation law for 6 of those years.

Peta’s personal experience with the law means she’s walked in the shoes of her clients. She understands how empowering and important it is to pursue the recognition and acknowledgment that clients deserve in life-altering circumstances.

Her goal in practicing law is to find ways to help people who find themselves in these situations.

When she’s not working on her client's claims, Peta enjoys baking, watching sport and is currently writing a novel.

To find out more about Peta’s areas of expertise, please contact us.