January 15, 2015

A 12-year-old child survived an accident that killed her cousin when an out-of-control car mounted a kerb of the footpath on which they were strolling in suburban Kuraby in September 2011.
Her companion was thrown forward and her impact with the pavement caused heavy bleeding from the child’s head.  Frqan stayed with her bleeding body at the scene and witnessed her on hospital life support, during a vain attempt to revive her.

“Not surprisingly,” Frqan Ali suffered severe nervous shock. A diagnosis of post-traumatic stress disorder by neuropsychologist Jan Ewing was undisputed. Suncorp refused however to offer any compensation for how the tragedy might detrimentally affect the child in the future.

Having migrated from Iraq’s only four years earlier under a family reunion program to join her father, Frqan’s initial schooling suffered due to English language familiarity. She was however consistently commended for her persistence and ongoing improvement but the records were equivocal as to whether or not her concentration ability had contributed to any deterioration in her results post-accident.

Age 15 time of the trial, Frqan described in the witness box how her concentration had been affected and how it had resulted in a deterioration in her school achievements that followed.
Her honour had no hesitation in accepting her evidence and her accounts of how the tragedy had made her socially withdrawn.

She was a “forthright girl who has tried and is continuing to try their best of the tragic events which have led to her suffering, behind her,” Judge Julie Ryrie said of the claimant. Her Honour was “absolutely” satisfied of the truth of her evidence.

The 7% impairment assessed by Dr Ewing for persistent traumatic disorders translated into an ISV of 10 and just $13k for general damages.

Would the determination she demonstrated in the past also mean – as Suncorp contended – that she would also overcome this tragedy with no significant deficit? And would she follow her two sisters to marry “early to assume full domestic duties” – as the insurer also argued – with no income-earning career to argue about?

The court dismissed these arguments; but how much was fair in her case?

Judge Julie Ryrie accepted that she was likely – despite proven to be hard-working and motivated regardless difficulties – to suffer from symptoms that will continue to impact on her life indefinitely.

She agreed the child’s academic and occupational future had been permanently compromised and that on the balance of probabilities she had “suffered a diminution in her earning capacity in the future that will or may be productive of a financial loss”.

There was, said the court in quantifying a figure for future occupational loss, a “real rather than remote chance that she would relapse in the future” depending on the various stressors or triggers in her life that could prevent her gaining employment or attaining promotions, “notwithstanding her stoicism and determination”.

There was also a real possibility she would have performed much better than she has so far academically had she suffered no injury “which in turn would mean far more opportunities would be open to her for employment in the future” than she is now prepared to settle for”.

Her claim for diminution in earning capacity for her 50 yr working life was pitched at $200k. Her honour thought such sum too high and awarded – despite the insurer’s continuing protestations – $110k as the appropriate figure.

That made up the total loss, including for future psychological treatment of $20k, to $146k.

Ali v Auguste & Anor [2014] QDC 272 Ryrie DCJ 03/12/2014

Categories: Personal Injury , Litigation & Law Practice

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