HWL Ebsworth Lawyers were instructing solicitors in the decision of Poole v Zagar & Anor  ACTSC 140 (Poole).
Insurers often receive significant claims for loss of earning capacity on the basis that a person can no longer pursue a particular (often lucrative) career path because of injuries suffered in an accident.
In Poole, the plaintiff claimed she would have become an accountant but for a motor vehicle accident. The Court was not convinced, and the decision highlights the factors that courts will take into account when assessing such a claim for a lost opportunity, including a plaintiff’s work and study history, and the believability of their asserted intentions.
Poole includes a helpful summary of the relevant principles used to assess a plaintiff’s claim about their intentions for future work and study. It also provides some insight into the usefulness of surveillance footage.
The plaintiff’s vehicle was ‘rear-ended’ by the defendant’s vehicle in Canberra in May 2016. The plaintiff alleged a whiplash injury, injuries to her lower back and shoulder, and a psychological injury.
Liability was admitted by the insurer and the issue at hearing was quantum. The defendants disputed the extent of the plaintiff’s ongoing disabilities and, in particular, her claim that she would have pursued a career as an accountant but for the accident.
The plaintiff (aged 29 at the time of the accident) sought damages in the sum of $747,563.95 at the hearing. The central issue at hearing was the assessment of the plaintiff’s past and future loss of earning capacity – the plaintiff claimed in excess of $400,000.00.
The plaintiff said she was working towards becoming an accountant at the time of the accident and would have commenced working as an accountant on a full-time basis had the accident not occurred.
At hearing, it emerged that the plaintiff had little understanding of what was involved in qualifying as an accountant. The defendants noted the plaintiff’s last significant employment was some nine years prior to the accident.
The defendants also relied on surveillance footage. The defendants argued the footage was inconsistent with the evidence the plaintiff gave about the extent of her ongoing disabilities.
Justice Loukas-Karlsson was not satisfied that the plaintiff continued to suffer any significant ongoing physical disability as a result of the accident. The Court awarded damages of $157,277.54, which included an award of $90,000.00 for general damages, and a small buffer for future loss of earning capacity (based on an ongoing low-level mood disorder).
In relation to the claim for loss of earning capacity, Her Honour said that the plaintiff’s understanding of what was involved in becoming an accountant could only be described as ‘rudimentary’ at best, and that the plaintiff’s plan to become an accountant did not have a realistic foundation. Her Honour rejected the plaintiff’s evidence that she would have returned to study but for the accident.
If you would like to know more, please contact Andrew Allan or Angel Li.
This article was written by Andrew Allan, Partner, Angel Li, Special Counsel, and Guillaume Nouri-Girones, Solicitor.