Cyclist – ISV 7 finger injury & $50K lost weekend work

Smith v Moore & Anor [2014] QDC 273

The plaintiff was injured when cycling and a car door opened on him. Liability was admitted.

Dr Journeaux was preferred to Dr Pentis in relation to the claimed back injury, which is unsurprising having regard to the history of the plaintiff and failure to make appropriate disclosure. Her Honour found against the claimed back injury, which left a fractured left index finger including ligament damage. Her Honour assessed Item 116.2 and ISV 7.

Dr Journeaux assessed a 0% impairment and Dr Pentis 3-5%. Her Honour placed importance on the “pinch grip” between the thumb and index finger and his difficulties with fine motor skills, such as tightening bolts and past restrictions in his sporting and domestic activities.

Appreciably, the parties diverged in respect of future lost earning capacity. The evidence revealed the plaintiff’s back was troublesome prior to the claim. There was much contention as to the work the plaintiff performed since the injury and his change in role and claimed loss of weekend work for aircraft maintenance. Despite the less than frank disclosure by the plaintiff regarding his troubles with his back, her Honour accepted the plaintiff’s evidence in relation to the difficulties he experienced with work. Her Honour also noted the concession by Dr Journeaux that a 0% impairment does not mean there is no pain or difficulty.

In the end, her Honour allowed a $50,000.00 global claim based on the lost weekend work for 10 years. Her Honour provided an imprecise ‘indicative’ assessment if it were to be arthritically calculated:

[92] I have also taken into account Mr Smith’s intended future desire which was that he never intended to fully remove himself from the aircraft work as it was more lucrative for him. While it may be that Mr Smith may have never returned to the aircraft industry full time in the future as he communicated to Mr Hoey and simply will remain working in the valuation industry, which he is more than suitably qualified himself to do, I nevertheless consider it a far more likely scenario that Mr Smith would have, but for the injury suffered, still have continued to work part time as an aircraft maintenance engineer at least over some weekends and during at least part of his vacation period (the latter of which at least in the short term of his potential working life) in order to supplement his income and support his family life which is only just beginning. That opportunity has now been lost and as such, will be productive of financial loss, albeit a modest one.

[93] In my view, I should therefore make some allowance for an award of damages for future economic loss to take into account those factors and the general disadvantage which Mr Smith will now suffer as a consequence of the finger injury which has caused him ongoing difficulty and soreness and the real rather than a remote possibility that such problems will impact upon his ability to carry out the core duties even part time as an aircraft maintenance engineer in the future.

[94] In order to do justice to this case, to take into account the parties’ respective contentions and to reflect the principles of Malec, I consider that this is a case that deserves only a relatively modest global award being made. In arriving at my figure, I have assumed that Mr Smith would have managed to secure an average of approximately one full weekend of part time work (that is 2 x 10 hour days at present day value $35 net per hour) each month for approximately 5 months of every year over the course of 10 years. I have also allowed for 2 x 50 hour working week of every year over the course of the next 10 years which is half of any vacation he may accrue as a full time employee working as a valuer.

As I have already indicated, any award for future economic loss cannot be precisely mathematically calculated, nevertheless, I have used the 5% tables multiplier of 413 as a reference tool only in order to demonstrate my methodology as to calculation, imprecise but indicative, adjusting any sum assessed in order to also reflect the normal contingencies of life by about 10%.

David Cormack – Brisbane Barrister & Mediator


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