Hick v Frisby and Anor  QSC 161
Case: Hick v Frisby and Anor  QSC 161
Court: Mackay Supreme Court
Judge: McMeekin J
Hearing Date: 10 and 11 July 2008
Damages – Future Economic Loss and Future Gratuitous Care, the likelihood of the Claimant suffering lumbar spinal degeneration over the next 7 to 10 years, the extent of the Plaintiff’s pre and post-accident earning capacity, and her requirement for past and future care and assistance.
Chernita Hick (the Plaintiff) claimed damages for personal injuries sustained in a MVA that occurred on 20 August 2004 shortly after her 17th birthday. The Plaintiff’s mother was killed in the accident. The Plaintiff sustained multiple fractures (shoulder, thoracic spine, right humerus and L5), chronic depression, anxiety and scarring. Liability was not in issue.
Dr Cook opined that the significant forces involved in the MVA led to a very high probability that the injury to the lower back would lead on to degeneration of the discs within 7 to 10 years. Dr Nutting did not expressly disagree with Dr Cook but conceded that he did not know what the future held for the Plaintiff.
When specifically asked about the degeneration, Dr Nutting conceded that Dr Cook’s opinions deserved respect, which led the Court to prefer Dr Cook’s evidence that the Plaintiff would have:
- increasing symptoms of lower back pain;
- an increased need for domestic assistance;
- diminished capacity for employment in the long term
The Plaintiff was also diagnosed with an adjustment disorder with anxiety and depression that had not been adequately treated. The Plaintiff had an entrenched opposition to counseling which the Defendant argued constituted a failure to mitigate her loss. The Court disagreed opining that the Plaintiff does not fail to mitigate their loss when their failure arises involuntarily.
The Plaintiff’s lumbar spine injury was held to fall within Item 91 of the CLR with an ISV range of 16 to 35. The ISV was then uplifted by 25% on account of the multiple injuries and their profound impact on the Plaintiff resulting in an award of $78,320 for general damages.
Since she had left school the Plaintiff had worked as a kitchen hand, cleaner, housekeeper, console operator and retail shop assistant. At the time of the trial she was employed as a cleaner with the assistance of a sympathetic work mate. At the time of the trial the Plaintiff was working 5 hours per day 5 days per week earning $486 net. The Plaintiff had aspired to perform secretarial work and it was held that her ability to perform that work had been adversely affected. A global allowance of $10,000 was made for past economic loss.
The Court held that the Plaintiff had been rendered suitable to part time light sedentary work and now required a sympathetic employer. The Plaintiff’s injuries meant that she would be an unreliable employee with an increased risk of dismissal and a decreased chance of promotion.
Despite the relatively modest allowance for past economic loss the Court awarded $300,000 for loss of future earning capacity (noting that the Defendant argued an award of $150,000 and the Plaintiff argued that $500.000 was appropriate).
Whilst the figure arrived at by the Court was a global one, it essentially mirrored the Plaintiff’s Counsel’s submissions but with a 40% discount to for contingencies (namely an easing of psychological symptoms, adaptation to impairment and the probability of degeneration).
Whether or not the Plaintiff would meet the statutory thresholds was not in issue. There was a dispute as to the hourly rate that should apply to the care provided. The Court rejected the Plaintiff’s claim that the rate should be the market cost of supplying the services ($25 per hour). The Court opined that its task was to arrive at an objective monetary value which was a question of fact in each case. With that in mind, the Court adopted the Defendant’s (conceded) figure of $20 per hour. An allowance of $26,800 was made for past care.
Again, despite the relatively modest award for past care, the Court awarded $255,250 for future care (comprised of 10 hours per week for 60 years at $25 per hour which contained inbuilt discounts).
The Court rejected the Defendant’s contention that modern day appliances such as a clothes dryers and dishwasher would alleviate the need for some of the services currently provided by the Plaintiff’s partner. Surprisingly, the Court opined that because the Plaintiff had no experience using such devices she could not know what effect they would have on her capacities.
The Court also factored in the fledging nature of the Plaintiff’s relationship with her partner (despite the fact he had changed occupations to care for her) and contended that the need for commercial assistance (at the rate of $35 per hour) could not be ruled out. The Court therefore awarded a higher rate of $25 per hour for future care instead of the $20 per hour allowed for past care.
Practical Significance of the Claim
Whilst it is would be easy to get carried away at the magnitude of the award for future economic loss and future gratuitous care, it is important for insurers to remember that this case turned on its own facts.
Insurers can expect at CC that Claimant lawyers will claim future paid gratuitous care at the rate of $25 per hour. This case can be distinguished from cases involving Claimants in the long standing and stable relationships where it should continue to be argued that $20 per hour for future care is appropriate.
On a positive note, the Court reaffirmed the decision of CSR v Eddy, by disallowing care provided for the benefit of the Plaintiff’s partner and also for the future need for services when caring for an infant. The Court also adopted a rate of $20 per hour for past care in keeping with Winter v Bourboulas & Ors.
It must also be remembered that the substantial award for future economic loss should be viewed in light of the Plaintiff’s young age and the seriousness of her injuries (highlighted by an ISV of 44).
Legal Practitioner Director