MVA: lifestyle choices minimise lost earning capacity claim

Gordon v Nachabe and another [2015] QDC 313

The plaintiff and his wife emigrated to Australia from the United Kingdom two weeks before he suffered injuries in a motor vehicle accident in December 2010. He and his wife decided to relocate to Brisbane for lifestyle reasons despite the plaintiff admitting that more work in his field was available in Sydney and Melbourne. He was unemployed at the time of the accident, but had experience in information and communications technology. At the time of trial liability was admitted, but quantum of damages remained in dispute.

Past economic loss and impairment of earning capacity was claimed on the bases that the plaintiff’s injuries had caused a delay in finding work following the accident, and had since caused a reduction in his working hours. The Court held that, aside from the six-week period following the accident, it was the plaintiff’s lifestyle choice of living in Brisbane that caused the delay in finding work rather than his injuries. Reference was made to the plaintiff’s claim that initially he was forced to look for work in Brisbane because he did not want to be far away from home, and the absence of evidence supporting his claim that he had later unsuccessfully tried to find work in Sydney and Melbourne.

Moreover, neither the medical evidence nor the plaintiff’s post-accident employment records supported the claim that the plaintiff’s working hours had been reduced. From about April 2013 the plaintiff had commenced working in Sydney and travelled to and from Brisbane each week. The plaintiff accepted that he was capable of performing the work, but alleged that he had to reduce his working hours because his back hurt from the regular travel. The Court held that any reduction in the plaintiff’s working hours was caused by his decision to work in Sydney but reside in Brisbane, and the increased travel time which flowed from that decision. The plaintiff’s claim for past economic loss and impairment of earning capacity were significantly reduced.

The plaintiff, who was 49 years at the time of trial, was awarded:

  • General damages: $12,950.00
  • Past economic loss: $11,400.00
  • Interest on past economic loss: $732.00
  • Future economic loss: $50,000.00
  • Special damages: $7,799.00
  • Interest on special damages: $132.00

David Cormack – Brisbane Barrister & Mediator



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