An individual pursuing a claim for damages arising out of a motor vehicle accident has had her damages award increased significantly on appeal. Here, we focus on the Court of Appeal’s reasoning with respect to the assessment of past and future losses.  

Circumstances of the Incident

The appellant, Kate Ann Sutton, was injured in a motor vehicle accident on 15 February 2015 at Mudgeeraba, Queensland, sustaining both physical and psychological injuries. Liability for the circumstances of the incident was not in issue.  

Medical Evidence

The Plaintiff was assessed by two independent psychiatrists for the purposes of providing a medico-legal report, and also consulted with a treating psychiatrist.  

In a report dated 9 August 2016, Dr Chung opined that the appellant suffered from post-traumatic stress disorder (PTSD) and that her prognosis was poor, with her PTSD symptoms remaining chronic. Dr Chung further opined that her psychological injuries had affected her employment, and would continue to do so into the future.   

Dr Chalk provided a number of reports, but in his most recent report of 29 July 2019, opined that the appellant had developed post-traumatic stress disorder subsequent to the accident and that these symptoms had improved with time. With respect to the appellant’s employment, Dr Chalk opined that the appellant could work “at least up to twenty hours a week”.  

The court also considered the opinion of Dr Lotz, the appellant’s treating psychiatrist, who opined that the appellant would be unable to return to any form of employment. He further opined that her prognosis was poor. 

Decision at First Instance – Economic Loss

At first instance, Freeburn J opined that the appellant had suffered, and would continue to suffer loss.  

His Honour’s calculation of economic loss was based on the assumption that but for the accident, the appellant would have returned to the workforce as an employee, rather than as a business owner, on a part-time basis. As to the nature of this role, his Honour considered it most likely that the appellant would have worked as a manager in a small business, generating an average net weekly income of $1,200.00 per week.  

Freeburn J expressed that he preferred the evidence of Dr Chalk, concluding on this basis that whilst the appellant hadn’t worked until the date of the judgment, with the resolution of the litigation and the benefit of ongoing treatment, she would gradually return to work over the proceeding years. His Honour opined that the appellant would make a ‘relative recovery’ by the end of 2025, when the appellant was fifty-four (54) years of age. Based on the above, awards of $180,336.00 and $77,357.00 were made for past and future economic loss respectively.  

Decision on Appeal – Economic Loss

The appellant’s statement of claim was amended on the last day of trial, prior to the appellant closing her case. The appellant’s claim for past economic loss was summarised as follows: –  

a. She had been out of the workforce for nine (9) years, since the birth of her first child, but that she intended to return to the work force once her second child had started school. This occurred two weeks prior to the accident; 

b. The injuries she sustained in the subject precluded her from working in a cleaning business operated by her husband, where she would have worked as the business development manager; 

c. The injuries she sustained in the accident had precluded her from taking up the opportunity to start an online business with her friend; and 

d. She had previously intended to investigate the prospects of a separate business selling tanning products, which she would have done once her youngest child was settled at school. 

The appellant alleged that, in the premises of the above, she intended to return to the workforce in some capacity in early 2015, and that her prospects of doing so were reasonable. She claimed a total sum of $398,814.00 for past economic loss.  

To future loss of income, the appellant pleaded that her psychiatric condition was chronic, and would preclude her from returning to remunerative employment of any kind in the short to medium term, and possibly at all. A claim for $754,180.00, based on the average weekly earnings for females in Queensland, was advanced on this basis.  

Bond J gave the lead judgment of the court in the appeal and concluded that the appellant’s challenge to the assessment of past loss of income made by the primary judge must fail. 

With respect to future economic loss, his Honour opined that the conclusion of the primary judge that the appellant’s condition would improve to such an extent that there would be no diminution in earning capacity by 2025 could not be supported by the evidence. In this regard, his Honour noted that the most optimistic evidence was that of Dr Chalk, who maintained that the appellant had capacity to work at least up to twenty (20) hours per week, and that her condition was stationary and stable. Thus, Bond J asserted that this evidence did not support a conclusion that within four years of trial, the appellant would have no permanent impairment. As such, his Honour concluded that “the primary judge’s allowance of only two days a week going forward was an underassessment of the appellant’s prospects of work capacity”.  

In light of the above, the Court of Appeal calculated the appellant’s loss of earning capacity at $600.00 per week for her remaining working life after trial, in comparison to the primary judge’s use of $240.00 per week until 2025 (approximately four years).  

Based on this weekly loss, the appellant was awarded future economic loss in the sum of $307,000.  

Conclusion

The Court of Appeal’s decision in Sutton v Hunter & Anor is a useful illustration of the way in which the courts assess the calculation of past and future economic loss. It highlights the importance of medico-legal evidence in personal injuries proceedings, and the way in which the courts contend with competition between the opinions of experts.  

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