July 27, 2016 | 2443 ViewsTourist crossing tragedy, QBE trumped on $2 mil future loss claim

A Japanese tourist run down by a bus in broad daylight on the first day of her first overseas holiday on a Cairns pedestrian crossing had her life change in an instant.

Before the New Year’s Eve 2011 calamity Mina Yamaguchi lived in her own apartment, had a full social life and “enjoyed a range of sporting and recreational activities” with her boyfriend.

After 18 days in a Cairns hospital to treat her fractured pelvis she was medically evacuated to Toyohashi, south of Toyko, for a further 10 days of hospital treatment under a team of specialists to diagnose her needs.

Despite attempts at rehabilitation and a period of work in protected conditions with her sympathetic former employer, organic damage to her brain and major depression have left her with a “sedentary and sad life”.

QBE admitted liability but disputed that the 23-yr-old auto parts dispatcher was permanently unemployable and claimed that the extent of care provided to her by her parents was more to do with “mothering” than representing her reasonable needs.

Mina returned to work in March 2012 on very light duties and was generally ‘accommodated’ by her employer. Her job was terminated 12 months later due to the severe slowing of her information processing ability and difficulties with “executive functioning”.

At home her parents were having to remind her to eat and shower regularly and to turn off the gas stove on after cooking. Nor could she – on her own – do grocery shopping, cooking or household chores.

Justice Peter Applegarth concluded that Mina’s ability to learn tasks in any new job would be very difficult as she couldn’t retain the memory of instructions given from one day to the next.

Orthopedic evidence from Drs Pentis and Morris agreed she would be unable to lift more than a few kilos and she was easily fatigued.

Dr John Cameron suggested her ability to drive a car short distances indicated an ability to live independently. His colleague neurologist Don Todman thought at best, she might cope with part-time work and would require physical therapy indefinitely.

Whilst QBE’s occupational therapist Mr Fraser contended a successful work trial might reduce her depression and increase her motivation his honour thought this “very unlikely”.

“The plaintiff is likely to remain unemployed well into the future and quite probably for the entirety of what would otherwise have been her working life,” he ruled.

For more information, go to: Pedestrian Accidents

And allowing care at 28 hours per week, he rejected this quantity of care was excessive.

“I do not regard these things as ‘mothering’ because the needs are actual in that she requires this kind of assistance which, fortunately for the plaintiff, is able to be provided by loving and devoted parents”.

An ISV of 55 for the multiple injuries was allowed translating to general damages of $130,600.

Past economic loss to 30 June 2016 was allowed at ¥8,292,835 or $105k.

A future loss of ¥65,000,000 was discounted by 15 per cent to result in an assessed loss for impairment of future earning capacity and superannuation of ¥69,000,000 ($870k).

Care at 28 hours per week at the hourly rate of ¥ 2,870 ($36) for the past and over the next 61 years arrived at a value of ¥ 82 million ($1.033mil) after a 15% discount for contingencies .

The court awarded general damages and expenses incurred in Australia – $170k – in AUD. The balance of the judgment ¥164,703,785 ($2.087mil) was given in Japanese yen – needing to be invested and managed in Japan – to avoid any expense associated with currency conversion.

Yamaguchi v Phipps & Anor [2016] QSC 151 Applegarth J 28 June 2016

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One Response

  1. Steve Hoey Aug 03, 2016 — Reply

    In choosing not to accept the evidence of Mr Fraser, Applegarth J fund the evidence of Rebecca Hague Occupational Therapist regarding work capacity to be “persuasive” and adopted her care schedules of 28 hours per week.

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