Written by Peter CarterDecember 29, 2012
A self-employed cyclist sustained serious injuries when he crashed into the back of a taxi that suddenly pulled in front of him and stopped, on Airport Drive in Brisbane in July 2007.
Gary Land – who was leading his single file peloton outbound along the left-hand shoulder of the roadway – sued the driver for negligence and QBE, the driver’s CTP insurer.
Despite early denials, the three-day trial proceeded on a liability admitted basis with the court required only to adjudicate upon the differing medical opinions on the extent of Land’s symptoms and to decide his resulting loss of earnings.
The medical significance of discectomy and spinal decompression performed in 2004 accounted for variations in reported disability among specialists Greg Gillett, Peter Boys, Don Todman and John Cameron, all of whose opinions are quoted at length in the Supreme Court judgment. Orthopedists Hayes and Licina – who had provided early treatment, also featured in the discussion.
Notwithstanding these differences, there was a general accord as to the applicable accident-related ISV range, which was ultimately assessed at 22, upgraded for impairment – on the strength of Dr Gillett’s view – to 25, yielding $35k in general damages.
Land operated and owned “Cycle Scene” at Victoria Point which he had purchased a couple of years before. Occupational therapists Jackie Bentley and Xavier Zietek concurred that he could not work to the extent he had previously but the tasks he could no longer perform in the running a bike shop, numbered only a few.
His complaints were mostly that he needed more time to do things and had to modify the way he went about his role.
He engaged forensic accountant Onus Maynes to formulate the value of his lost economic opportunity from that business at $750k, a figure that included a $200k past loss of income claim.
But Land’s post-accident history was unusual in that he had sold Cycle Scene and had started other (loss-making) businesses. At the time of trial he had an employed position. In this context the court thought “the approach adopted by Mr Maynes is fraught with difficulties”.
It noted that economic loss “should be calculated by reference to the actual loss of wages which occurs up to the time of trial and then, having regard to the plaintiff’s proved condition, to attempt some assessment of his future loss. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss”.
A different measure of assessment of economic loss – one based on the value of Land’s labour and the cost of that replacing it – promoted in a competing forensic opinion from Kirsten Aylen, was preferred.
Adopting a 55% residual work capacity, the “value of labour” losses calculated out at $81k for the past and $150k for the future, assuming a working life only to age 63.
As to the value of services performed, those claimed to have been done by his wife were those which either she had already done previously or those which were provided to the household as a whole.
In the absence of cogent evidence as to the number of hours per week were devoted to the plaintiff solely as a result of the injury and whether or not it met the threshold requirements of CLA s 59, his honour was “unable to make any assessment on the plaintiff’s claim for past and future gratuitous care” and nil was awarded under that head of damage.
Total damages were assessed at $383,000.