Allen v O’Donnell & Anor [2021] QSC 63
Material Facts
The plaintiff, Mr Allen, was travelling on the Gateway Motorway on 5 January 2015 when the defendant veered into the incorrect side of the road causing a high-speed head on collision. Mr Allen sustained multiple serious injuries, spending a significant time period in hospital, following the accident. Liability was not in issue in this case.
Quantum Findings
General Damages
The court addressed each of the injuries in turn to assess their Injury Scale Value (ISV) value according to the Civil Proceedings Regulations 2011 (Qld).
Brain Injury
Two medical reports each gave a 5% and 8% whole person impairment (‘WPI’) for what the court considered to be an Item 8, minor brain injury (ISV 6 to 20) with ISV 8, as any personality change, depression and cognitive limitation experience was as due to psychological injuries rather than the minor brain injury.
Facial, Teeth and Gum Injuries
The plaintiff suffered a deep laceration on his left chin, requiring plastic surgery, leaving a scar and continuing facial numbness. Two medical reports assessed this as a 3% and 4% WPI respectively. The court said this injury was an Item 16, moderate facial injury (ISV 6 to 13) with ISV 13 given the loss of sensation causing dribbling and tendency to leave food on that area of the face.
Neck Injury
For a neck injury, medical reports gave WPIs of 6%, 7% and 0%. The court accepted the reported WPIs of 6% and 7%. The court considered that this injury was an Item 88, moderate cervical spine injury soft tissue injury (ISV 5 to 10) with ISV 9, given the WPI and ongoing symptoms for more than 5 years.
Left Shoulder Injury
The court accepted medical evidence that Mr Allen’s left shoulder injury was a 4% WPI injury, as an Item 97, moderate shoulder injury (ISV 6 to 15) with ISV 6.
Lumbar Spine Injury
Two specialists gave a 0% WPI for the lumbar spine and one specialist gave 5%. The court preferred the 5% WPI assessment, given evidence that Mr Allen was “fit, well and strong prior to the accident” and now suffered continued the back pain. The court therefore considered that the injury was an Item 93, moderate lumbar injury (ISV 5 to 10) with ISV of 8.
Scarring
Two medical reports allowed for 4% and 5% WPI respectively with respect of the scarring (other than the facial scars). The court considered the injury was an ISV 155.3, moderate scarring injury (ISV 4 to 8), with the highest ISV of 8.
Chest Injury
Mr Allen fractured five ribs in the accident, which was called an Item 38, moderate chest injury (ISV 11 to 20) with ISV 14.
Left Hip Injury
Mr Allen’s left hip injury was diagnosed in the medical reports as a fracture/dislocation of the left hip, the WPI allowed was 4% and 6% (6% was accepted). The court considered the injury to be an Item 127, moderate pelvis or hip injury (ISV 11 to 25) with ISV 20.
Knee Injuries
The plaintiff sustained injuries to both of his knees. One medical report assessed both knees to be suffering a 0%, whereas another report allowed 3% for the right knee and 2% for the left knee (which was the preferred assessment). The injury was considered an Item 139, moderate knee injuries (ISV 6 to 10) with ISV 8 as a combined impairment for both knees.
Other Psychical Injuries
The court then considered that Mr Allen also suffered from the following injuries:
1. Item 24, minor upper limb injury (ISV 0 to 5);
2. Item 119, moderate hand injury (ISV 6 to 15);
3. Item 13.3, minor ear injury (ISV 0 to 3) for each ear;
4. Item 29, minor eye injury (ISV 0 to 5).
Psychiatric Injuries
Of three medical reports, one gave 7% WPI for psychiatric injuries and two others gave 27% and 26% WPI respectively. The court contemplated each specialists’ rating in each PIRS category and made decisions of preferred findings in each of these categories. These preferred figures were then used in the PIRS tables formulas to produce 17% WPI giving an Item 11, serious mental disorder (ISV 11 to 40) with ISV 20.
General Damages Overall
The court considered the dominant injury was the Item 11, serious mental disorder (ISV 11 to 40) but that the highest ISV of 40 was inadequate to represent Mr Allen’s injury. An uplift 10% to the maximum ISV of Item 11 was allowed, giving an ISV of 44. Therefore, general damages of $109,640.00 were awarded.
Past Economic Loss
Mr Allen, at the date of judgement, had not returned to work and there were no submissions that he failed to mitigate his loss. It was accepted that a non-accident-related redundancy would have impacted Mr Allen’s employment from 25 March 2016. The court awarded past economic loss for the period from the accident to the redundancy (64.57 weeks) at his usual weekly pre-accident earnings (‘NWE') ($1,660.00), giving $105,526.20.
The court accepted that following the redundancy, the plaintiff was likely to have been out of employment for three months until 25 June 2016.
For the period from 25 June 2016 to judgement (247.85 weeks), the court then considered Mr Allen’s NWE was the appropriate measure, giving $411,431.00. The court rejected arguments of an inflated earning capacity or allowance of a discount in this period.
Total past economic loss of $515,957.20 was awarded. Interest of $17,245.69 was allowed (0.556% for 6 years). Past superannuation of $57,025.39 was awarded being 17% for the first period (the actual pre-injury superannuation rate) and 9.5% for the later period.
Future Economic Loss
All parties accepted that Mr Allen could not return to his pre-injury employment and was presently incapable of work. However, given his relatively young age (49 years) and high intelligence, the court considered there were good prospects of him returning to work in some capacity. The court measured the positive and negative vicissitudes of his future earning capacity to determine the appropriate discount to account for this possibility.
For the positive vicissitudes, the court recognised that given Mr Aleen lived in Townsville, there were good prospects of access to higher incomes through the mining industry. On the negative side, the court acknowledge previous depressive episodes (Mr Allen returned to work each time), although considered this a minor matter with “little weight”. Overall, the court allowed a discount of 20%.
The court allowed an increase to Mr Allen’s future earning capacity to $1,800.00 per week given his NWE (pre-injury) had been increased from “previous years”. Future economic loss of $959,040.00 was awarded, being $1,800 per week for 20 years (on the discount tables), with the 20% discount.
The parties that future superannuation should be 11.33%, so came to $108,659.23.
Future Medical Expenses
The court allowed an amount of $58 per week for psychologist appointments for his life expectancy of 35 years (discount factor of 876) giving a sum of $50,808.00 as well as global sum of $10,000.00 for future psychiatric treatment. For GP visits, $160 for every two months was allowed for 35 years (with the 876 discount factor) giving $16,206.00.
In total, the allowance for future medical expenses came to $77,014.00.
Future Surgery
The following surgical allowances accepted as being required by the court:
left shoulder injections and a possibility of surgery for which $5,000.00 was allowed;
a hip replacement costing $40,000.00 (delayed by 15 years, giving $19,240.00);
left and right knee replacements costing $30,000.00 each (deferred for 15 years, giving $28,860.00).
Total future surgery allowances were $53,100.00.
Future Medication
The court accepted the plaintiff’s contention of spending $70 per week on medication but considered that a discount of 30% ought to be applied. Therefore, $49 per week for Mr Allen’s life expectancy of 35 years (876) was allowed equalling $43,000.00 (rounded).
Future Aids
The court accepted that the following aids would be required:
hearing aids costing $10,400 every three years, being $66.66 per week for Mr Allen’s lifetime ($58,500), discounted to $50,000.00 for the possibility that the cost may not be maintained into the future;
orthotics the costing $600 every two years, discounted by 10% for Mr Allen’s lifetime, giving $4,500.00; and
other technological aids, allowing a global sum of $5,500.00.
In total, the court allowed $60,000.00 for future aids.
Alternative Accommodation
Mr Allen’s injuries prevented him from living in his usual home requiring him to seek rental accommodation. The court allowed 70.28 weeks of rental reimbursement at $650.00 per week totaling $45,682.00. Interest was of $330.18 was allowed (at 0.556%). For the future, the court allowed rental payments for the remaining 28 weeks of the lease, equaling $18,200.00.
Home Modifications
The court did not consider a “universally accessible home” necessary for Mr Allen’s injuries, but allowed $10,000.00 for modifications such as grab rails and access paths.
Special Damages
The parties agreed special damages to be $55,000.00 with $900.00 interest.
Past Gratuitous Care
The parties agreed that the appropriate rate for past care was $42.00 per hour. The court broke the time from the accident to judgement into various periods requiring different levels of care. The court accepted evidence of independent Occupational Therapists, as well as Mr Allen’s wife (herself an experienced OT). In total, the court allowed $143,052 totalling 3,406 hours of care.
Future Gratuitous Care
The parties agreed that for the future care, an appropriate rate was $46.00 per hour. The court considered 1 hour per week with a 20% discount for the chance that Mr Allen’s psychological symptoms may improve into the future, to be appropriate. Therefore, $225,554.00 was awarded, being $322.00 per week for 35 years (876), discounted by 20%.
Wilson v McLeay Damages
The court did not consider Wilson v McLeay damages appropriate given Mr Allen’s wife’s visits were prompted by “love and affection” rather than to “alleviate Mr Allen’s condition”.
Total Damages
In total, damages were awarded to Mr Allen in the amount of $2,499,399.69.