The case of Ingersole v Nancarrow & Anor  QDC 315 is a decision of the District Court that illustrates the application of s55 (3) of the Civil Liability Act 2003 (Qld) where earnings cannot be precisely calculated for personal injuries.
The Plaintiff was involved in a motor vehicle accident with the first defendant where his vehicle was struck in the rear which resulted in his vehicle being subsequently thrust forward. The Plaintiff made a claim for personal injury for the pain to his hip and lower back which resulted in slight career changes in the nature of his HPE teaching, towards a more facilitator and assessor role.
The Plaintiff was also in partnership conducting a swimming school ‘Fast Lane Swim Club’ (Fast Lane) and recently began a new swim school called ‘Aqua Champs’. He claims that as a result of the accident and the aggravation on his back, his working hours and job role had changed at Fast Lane.
The Decision – What a claim worth is, when earnings cannot be calculated?
Judge Reid considered the examination of the Plaintiff’s tax returns, the consideration of his lifestyle, the evidence given by his partner and His Honour’s assessment of the Plaintiff to all be of importance. On analysis of the tax returns, the Judge concluded that the Plaintiff’s Fast Lane partnership showed the Plaintiff was quite financially successful. The Judge found that whilst the Plaintiff did have lower back pain resulting from the accident, this was not the only contributing factor toward the reduction of working hours.
The judge was unable to calculate precisely a weekly loss for the past or future loss as a swimming coach. His Honour considered s 55 of the Civil Liability Act 2003 (Qld) (CLA) when quantifying damages:
s55: When earnings can not be precisely calculated
- This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
- The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
- If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.
- The limitation mentioned in section 54(2) applies to an award of damages under this section.
His Honour referred to Justice Fryberg in Allianz Australia Limited v McCarthy  QCA 312 where the terms ‘assumption’ and ‘methodology’ under s 55 (3) of the CLA were more likely to have been intended to refer to “assumed facts underlying one or more hypothetical calculations which a judge might use in order to get a general idea of what might constitute a suitable global figure.” Justice Fryberg likened methodology in this context to ‘an experienced guess’ to be “dissected in a manner appropriate to the circumstances of the case in order to understand what it might imply in those circumstances and thereby to confirm that the figure is of an appropriate order of magnitude”.
His Honour also cited Reardon-Smith v Allianz Australia Insurance Ltd  QCA 211 where it was agreed that “section 55 (3) is concerned to ensure that the assessment of damages proceeds in a manner which is sufficiently transparent that the basis of the decision is apparent, both to the parties and to an appellate court.”
Therefore, in making findings, assumptions and providing reasons for methodology, the Judge found the Plaintiff had ongoing symptoms from the accident that aggravated pre-existing symptoms of lower back pain. This resulted in the Plaintiff changing the nature of his work as a HPE teacher and possibly affecting the Plaintiff’s advancement of his teaching career. His Honour overall decided that the advancement of the Plaintiff’s career was influenced by his desire to conduct a swimming school after hours, which limited his capacity to engage in activities for the school outside of teaching hours. The Judge awarded a small sum in respect of future earnings because there was no evidence given of extra income which might have been earned or a later promotion in his career.
With regard to swimming, His Honour found that the Plaintiff was materially affected by his physical ability to coach, and worked less hours than prior to the accident. The Plaintiff was found to have mitigated his losses by changing to squad training instead of his preferred ‘learning to swim’ classes which required less physical strain from the poolside. As such, the Judge allowed for future and past loss on his earnings on his partnership as swim teacher.
This case illustrates the court’s approach where earnings cannot be precisely calculated by reference to weekly loss. In practice where no quantifiable loss is present, a court will make an experienced guess to grant an award for future economic loss to a claimant.
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