MVA: reduction in working days temporary in light of “Indianna Jones” choices

Basic v Australian Associated Motor Insurers Limited [2012] QDC 208

Issue: quantum only and in particular loss of earning capacity as a consequence of a motor vehicle accident.

Andrews SC DCJ

His Honour considered the combined musculo-ligamentous injury to the cervical spine (Dr Gillett 5% AMA) and adjustment disorder (PIRS 4 Dr Foxcroft) warranted the temporary reduction in full time work, together with declining a promotion as the National Sales Manager, which included more driving and travel. There was also the unrelated concern of being away from her husband after recently marrying. However, the reduction in ability to work was considered temporary only and by the trial His Honour considered the Plaintiff had capacity for fulltime work after her temporary reduction in working days.

This conclusion was bolstered by the Plaintiff’s improving stamina as evidenced by Facebook posts, forming a group called the Intrepidettes who undertook weekly walking, which culminated in a 100km walk for charity. The Plaintiff also regularly attended the gym and ‘boot camps’. In addition, she increased her yoga sessions to 3 weekly. Interestingly, His Honour allowed the claim for yoga on the basis of Dr Gilletts’ report as in his opinion it was a useful recreational activity.

His Honour considered the explanation in the reduction in working days as being solely attributable to the injuries as too simplistic. At the same time the Plaintiff had commenced study in anthropology, which would give her the opportunity to pursue an “Indianna Jones” style travel career, rather than in a higher income occupation. It was instructive the Plaintiff’s husband was also studying.

An award of $53,000.00 for future lost earning capacity was nevertheless made on a global basis reflective of approximately one year’s salary based on the usual prejudices and disadvantage in the open labour market.

[71] I find that it was reasonable because of her symptoms in 2011 for the plaintiff to request a temporary reduction in her workload in late 2011 and that her injuries were a substantial cause of her request. The request produced no financial loss in 2011 because the plaintiff was persuaded to remain in her job by the prospect of a new position becoming available in 2012

[72] When the new position was offered to the plaintiff in 2012, because it was combined with unpleasant driving aspects of her old position the combination was at least as onerous for the plaintiff as the old job from which she wanted relief. I regard it as reasonable for the plaintiff in February 2012 because of her recent experience with symptoms to have rejected the promotion in the combined form in which it was offered. I regard her injuries as a substantial cause for her rejection of that promotion.

[73] When the plaintiff was offered employment of 2.5 days per week in February 2012, to start in March 2012, it is probable that her condition had improved from its state in 2011. Despite the improvement I regard it as reasonable for the plaintiff, because of her recent experience with symptoms, to have accepted the part time position with Intrepid Travel. Hypothetically, she might have pursued less onerous full time employment elsewhere and with her CV would have been an attractive applicant. I regard the injuries as a substantial cause for her rejection of that alternative. It follows that by accepting part time employment she has suffered economic loss as a result of the accident.

[74] The plaintiff’s improvements in 2012 have seen her accept 3.5 days work each week instead of 2.5. Then she took on a half day of charity work each week. While she was looking forward to the end of the charity work I find that it was primarily because of the half day which the charity work took from her rather than because of aggravated symptoms.

[75] The plaintiff maintained her reduced workload at the time of trial. There were several possible motives for the plaintiff to maintain her reduced workload despite the loss of income. The plaintiff’s attraction to studying full time to create the chance of a stimulating career overseas related to anthropology is one possibility. The plaintiff’s fear of jeopardising a good relationship in her marriage is another possibility. The impending trial is another possibility. While satisfied that the plaintiff’s employment choices in 2012 before trial were caused by her injuries I am not satisfied on the balance of probabilities that the orthopaedic and psychiatric injuries prevent the plaintiff from returning to full time employment. I am satisfied they each had previously contributed to a waning enjoyment with aspects of the job and that similar work would become similarly unsatisfying because of her injuries. However, I am not satisfied that they rendered the plaintiff incapable of that full time work or of a return to similar work full time after her temporary break.

[76] Her employment at trial for 3.5 days each week included 2.5 days per week in her old role as a Business Development Manager. I infer that for two days each week she continued to drive to visit eight agencies a day at a rate of about 10,000 km per annum.

[77] I am not satisfied that the plaintiff’s injuries have made her incapable of returning to work full time in office work or of returning to employment that involves driving 20,000 km per year. I accept that she needs to make postural adjustments, that she should mobilise regularly in office work, that ideally she should be in an office that permitted her to use her yoga aids if she chooses, that she would sensibly choose to limit her driving on the kinds of roads that most disturb her, that she would sensibly seek to drive less and that the symptoms of her injuries will continue to cause her to take a day off work on occasion as they did in the two years to April 2012. For these reasons her choices of available employment are affected and her earning capacity is affected. The plaintiff was caused by her injuries to seek in 2011 a temporary respite from full time work. When the work offered in 2012 involved an increase in duties in spite of her request and expectation of a decrease in duties she rejected the promotion and full time work and took part time work instead. The injuries were a substantial cause of those decisions. I accept that there may be some risk of that again in her working life despite her failure to persuade me that she is unable to resume full time work now.

[104] I am not satisfied by the evidence that the plaintiff’s choice to continue to work less than 5 days a week, if she so chooses, is sufficiently connected to her injuries to be caused by them. It is not part of the plaintiff’s case that she has not been unable to find available full time work. Rather her case has been based upon being incapacitated for full time work. Her counsel submitted and I accept:

“It is clear on the evidence that the Plaintiff has the necessary skills and drive to be promoted with her current employer or to obtain employment within the insurance sector. The latter employment is lucrative.”

[105] When considering future economic loss, and her diminished earning capacity, I am not satisfied that in the short term there is a need to include a component for the plaintiff’s currently reduced working week of 3.5 days.

Future Economic Loss

[106] For the reasons summarised at paragraph [77] I find that the plaintiff’s earning capacity is impaired. I am unable to calculate it by reference to a weekly loss because the plaintiff is capable currently of a return to full time work. Having regard to the plaintiff’s age, her exemplary work history, her recent need to take a temporary reduction from full time work despite the pay increase offered with it, and having regard to her future working life of about another 29 years I am satisfied that the plaintiff will suffer loss. She is properly compensated with an amount which is approximately equivalent to a year’s nett income at the rate she would earn if employed as a National Industry Sales Manager. I find a loss of $53,000.00.

Brisbane Barrister – David Cormack

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