A child witness to fatal car crash receives compensation for psychiatric injury

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Miss Al Ali was 12 when, walking on a footpath with her cousin, a vehicle suddenly mounted onto the footpath and struck her cousin causing fatal injuries.  Miss Al Ali later developed Post Traumatic Stress Disorder (“PTSD”), a psychiatric injury, with dissociative symptoms, from bearing witness to the horrific incident. She was awarded compensation for psychiatric injury. See details below:

At Trial, Miss Al Ali now being the age of 15 sought damages for:

  1. Pain and suffering;
  2. Future treatment costs;
  3. Reimbursement of expenses and refunds; and
  4. Most significantly, future economic loss.

The court considered the effect that these injuries had and would continue to have on Ms Al Ali’s life, namely:

  1. Difficulty concentrating and was absent-minded;
  2. Unable to perform well in school;
  3. Did not enjoying her schooling;
  4. Social wellbeing had been affected, for example, she no longer wanted to attend social events,
  5. Blaming attitude and harming of herself;
  6. Experiencing nightmares, getting angry quickly, irritability, being easily startled, and feeling jumpy.

The court accepted that it was more likely than not that she would continue to have these persistent symptoms and that while appropriate treatment may help to improve her condition, it would never fully resolve it.[1]

Future Economic Loss for Psychiatric Injury

The defendants argued that Miss Al Ali could not make a claim for future economic loss given that she was a child who had not yet commenced a career and therefore the “imponderables” were too great,[2] that is, there was just no way of being able to precisely calculate how much she was entitled to by reference to a defined weekly loss.

a.     What needs to be proved

However, the court held that it was still possible to award damages notwithstanding that the amount could not be precisely calculated.

The court had to be satisfied, that:

  1. Ms Al Ali suffered or will suffer loss having regard to her age, work history (if any), actual loss of earnings, any permanent impairment, and any other relevant matters; and
  2. on the balance of probabilities, that the diminution of the person’s earning capacity, will or may be productive of financial loss.[3]

The court considered that her studies had been hampered by her ongoing symptoms[4] and this was demonstrated by both by school records and Miss Al Ali’s own oral evidence. Teachers noted in her school records (which post-date the accident) that her concentration was in need of improvement.

The plaintiff also gave evidence that she had failed 3 subjects this year. This was compared to the situation prior to the accident where Ms Al Ali was in fact starting to show improvement in both English and Maths (against the clear disadvantages that she had started with when she commenced school in Australia having come from Iraq with no English).

b.    Pre-existing learning difficulties

The defendants argued that Miss Al Ali had learning difficulties prior to the accident due to her previous limited English. The court however, found that the difficulties now in existence, including lack of concentration, memory difficulties and the like have now further exacerbated any pre-existing learning difficulties she may have been experiencing.[5]

c.     Increased difficulty of school work

The defendants also argued that any recent decline in the plaintiff’s academic performance was unrelated to the accident but due to high school work being more difficult that the primary school work she was previously doing. However, the court rejected this argument and found that Miss Al Ali’s difficulties regarding concentration only became apparent after the accident happened. There were no difficulties regarding concentration noted prior to that time, notwithstanding the fact that the work itself may have become more difficult.

The increased difficulty of work and the pre-existing learning difficulties could not be the only reason for her academic decline.

d.    Future career

Ms Al Ali had said that she wanted to be a dentist, but that she had decided to settle for becoming a phlebotomist given that her scores had lowered. The court agreed with the defendants that this aspiration to study dentistry was always fanciful given that her school records showed that she was struggling to even obtain academic achievements in primary school prior to the accident.

However, the court found that she would have performed much better than she had so far in her schooling but for the serious injuries she suffered. At [47] the court held:

“…it cannot be said that there was simply no chance at all so as to be considered negligible…the lost chance to perform better means any better remunerative work opportunities than those of a phlebotomist may well have also been available for her in the working future. Even if dentistry was always beyond her, she would probably have done better but for the injury, and therefore probably had more remunerative employment.”

e.     Effect of injuries on future career

Nevertheless, the Court on the medical evidence accepted that there was a very real chance that her condition would relapse (depending on the stressors or triggers at the time), and those relapses will or may be productive of financial loss, in that any fluctuating mental condition may:

  1. Cause her to lose an opportunity to obtain employment; or
  2. Prevent her from sustaining her employment if the relapse is serious enough; and
  3. Impact on her ability to attain promotions.

At the very least, there was a real chance that she will either simply not be able to work at all times or may be require to have time off work without pay.

Therefore, that the plaintiff had suffered a diminution or reduction in her earning capacity and this may be productive of financial loss in the future.

There is the possibility that she may improve with treatment and that she may never achieve academically enough to become a dentist. However, the court was more convinced by this finding: the chance of her suffering significant financial loss due to the continuing effects of her chronic condition was virtually certain. Any chance of her getting by through her life without any significant loss or problems was very low.[6]

f.      What to consider when calculating future financial loss

The court assessed:[7]

  1. the potential to work for 50 years, but that there should be a less adjustment for time taken out of the workforce for children (which Miss Al Ali didn’t discount completely);
  2. the many periods off during her potential working life because of her injury and consequent susceptibility to relapse and assessed that loss of capacity to be a period of 18 months at the average weekly wage according to the ABS;
  3. the nature of the work and stressful environment;
  4. The loss of the opportunity to have obtained more remunerative employment as a result of the injury – assessed at a net loss of $60.00 per week for 50 years discounted on the 5% tables;
  5. A discount of 15% for contingencies.

From there a figure of $110,000 was reached, inclusive of superannuation.

Implications of this decision

This psychiatric injury case provides guidance in the likely approach courts may adopt when assessing loss of income into the future for an injured child.  It is important for solicitors and the client in these matters to discuss the issues explored in the present psychiatric injury case, such as, future work intentions, family aspirations and take particular care when analysing the school records for evidence of the impact the injury has had on academic performance. The full decision can be read here: Ali v Auguste & Anor [2014] QDC 272

For more information regarding Compensation for Psychiatric Injury

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[2] Ibid at [26].

[3] Ibid at [28].

[4] Ibid at [31].

[5] Ibid at [38].

[6] Ibid at [49].

[7] Ibid at [50]-[52].