The assessment of damages (money) for injury can often be more art than science.
In a case where a person is earning a certain wage before suffering injury, and is only capable of earning a lesser wage after the injury, economic loss can be a fairly simple calculation. But how might damages for future economic loss be assessed in the case of a 20-year-old male who suffered injury in a motor vehicle accident at age 14, particularly when the effect of the injury is disputed by the defendant?
In the case of Ardis-Phasey v Neal ANOR [2026] QDC 25, District Court Judge Porter KC was required to make assumptions on the evidence to forecast the extent to which the Plaintiff’s injury would affect his ability to work in the future.
It is apparent from reading the case that the motor vehicle insurer doubted the effect of the Plaintiff’s injuries. Surveillance evidence was obtained, as was evidence regarding the Plaintiff’s gym work, soccer and rugby league playing, and employed house washing activities. According to the judgement, the Plaintiff was cross-examined “off and on for nearly a day and a half”.
Judge Porter KC conceded “back pain can be notoriously hard to prove… Insurers might understandably have reservations about significant claims which are based solely on self-reported lower back pain. Such cases largely turn on the credibility and reliability of the evidence given by the person who complains of the condition.”
In his judgement, Judge Porter KC recounted the Plaintiff’s testimony under cross examination, in which he explained situations which, on their face, appeared inconsistent with a person suffering a limiting injury.
Some of his Honour’s observations are quite humorous. His Honour writes “his gym work was successful and speaks to his discipline and determination. Like many young people, he could not help preening on social media, and it must be considered he developed quite a rig.”
Ultimately, the Judge stated “I found the Plaintiff to be a credible and reliable witness. I could give numerous reasons for that… Mr Ardis-Phasey presented as a disciplined, truthful, careful and reliable young man who frequently answered questions in a manner contrary to his interests in the trial, without a hint of prevarication.“
So, having accepted the Plaintiff continued to suffer limiting back pain notwithstanding apparent examples to the contrary, how did his Honour assess damages for future economic loss of a person who had limited experience in the workforce?
Although Judge Porter KC found the Plaintiff’s academic performance to be “very modest” he stated “my distinct impression is that he is quite intelligent” and perhaps his modest performance had more to do with discipline issues with some teachers as “he could occasionally be a bit of a ratbag.”
Judge Porter KC conceded the assessment future economic loss “is the most difficult part of the case“, particularly when assessing the damages of someone so young.
Judge Porter KC stated “it can be a mistake to put too much weight on what a young person happens to be doing at the time the matter comes on for trial. It is quite artificial to infer… that what they are doing at 20 is the future until 65…”
Ultimately, Judge Porter KC made the following findings to underpin his assessment of future economic loss:
- The Plaintiff likes to be outdoors and active but his injury would affect his ability to perform such work;
- The Plaintiff will have to disclose his back problems to employers;
- The Plaintiff “is a hard worker and a disciplined young man. He clearly has the potential… to be successful in his work life;
- Due to his injury, the Plaintiff has to work over capacity to match the output of his colleagues;
- The most likely future for the Plaintiff is in skilled or semiskilled work e.g. a trade or similar. Trade work can generate significant wages which the Plaintiff might not be able to fully achieve; and
- With proper treatment, the Plaintiff’s injury might improve.
Judge Porter KC concluded “an award of damages for loss of earnings is unable to be precisely calculated by reference to a defined weekly loss in the case of this man” but assessed future economic loss at $160,000.00 and explained his methodology as “taking everything forward against the impact on his earning capacity and the value of that impact into account.” The explanation is somewhat broad brush in circumstances where a court must do the best it can in the circumstances of the evidence provided.
The principle demonstrated in this case is that assessments of damages are exquisitely particular to the injured person and that person is often the lens through which all evidence will be interpreted. A case that might seem far-fetched can be proven with the right witness or fail due to the testimony of a poor witness.
For further information, please contact our Insurance team.
