Accident Victim Awarded $448,000 Despite Cannabis Abuse
In the case of Schneider v Smith & RACQ Insurance  QSC 047, the Court was faced with determining the impact of accident injuries on the Plaintiff's pre-accident lifestyle and employment against a strenuous argument by the Defendants that the Plaintiff's cannabis abuse was a main cause of any claimed psychiatric condition and loss of earning capacity, and his general "surfer" attitude should reduce any economic loss award.
The motorcycle accident and the Plaintiff's injuries
Mr Schneider was involved in a serious motorcycle accident on 9 March 2010 and sustained multiple injuries as a result, including dental injuries, severe facial injuries, injuries to both knees, injury to his right wrist and left hand, soft tissue injuries to his neck and back, scarring to his face and body and psychiatric injury. Mr Scheider had, prior to the accident, worked as a public servant in an administrative role on a casual basis, but had been promised a promotion to a permanent role just prior to the accident occurring.
Following the accident, the Plaintiff had approximately three months off work before returning on a graduated return to work program. The Plaintiff gave evidence at the trial that upon his return to work, he had a great deal of difficulty dealing with the stress of his work role. He testified that his head felt like a "washing machine" and he could not think clearly. As a consequence, he suffered increased anxiety, and developed a serious psychiatric injury resulting in him resigning from his employment within only a few months of his return to work. As at the date of trial, he had not returned to any form of work since that time.
Medical evidence given at the trial indicated that the Plaintiff had recovered reasonably well from his physical injuries, and whether he continued to suffer from a psychiatric injury as a consequence of the accident and his injuries was seriously in contention.
At trial, the Defendant insurer, RACQ Insurance, strenuously argued that the Plaintiff's reason for terminating his work role was not due to the accident injuries, but the Plaintiff's cannabis abuse and lifestyle choices. The insurer argued that prior to the accident, the Plaintiff enjoyed a very relaxed lifestyle and was more interested in his surfing interests and cannabis use than his employment. They argued that the Plaintiff resigned from his role so he could surf at his leisure, and was using his accident injuries as an excuse.
The insurer also alleged that there were issues with the Plaintiff's work performance pre-injury and with his work role that did not suit the plaintiff. The insurer also alleged that any impairment in the Plaintiff's mental state and his earning capacity was not due to his accident injuries, and any psychiatric condition was not caused by the accident or his injuries, but rather his cannabis abuse which pre-existed the accident.
The Plaintiff argued in response that his increased cannabis usage at the time of his resignation and post accident (he testified he had ceased the use of cannabis by the end of 2013) was in response to his accident injuries and his psychiatric condition, but that it was not the cause of his impairment - this was the result of his injuries and, in particular, his psychiatric condition.
Liability was not in issue at the trial. The arguments solely involved the extent of the Plaintiff's injuries, the ongoing impairment resulting from same and their impact on his pre-injury lifestyle, domestic and personal care tasks, his social and recreational activities and his employment.
The findings of the Court as to the Plaintiff's accident injuries
The matter came before Justice McMeekin in the Supreme Court at Rockhampton who had the unenviable task of considering all of the arguments and, in particular, determining whether the Plaintiff did suffer a psychiatric injury as a result of the accident, unravelling the reasons behind the Plaintiff's resignation from his employment and his failure to work since that time, as well as the Plaintiff's cannabis abuse and whether the impact of same was compensable in his claim.
Justice McMeekin, after considering all of the evidence determined that the Plaintiff had not resigned from his work due to a psychiatric injury resulting from the accident. He considered that the medical evidence indicated the Plaintiff had sustained a psychiatric injury as a consequence of the accident, but that this condition had arisen following his resignation from his employment, and despite it not being the reason for his resignation, it had since that time reduced his capacity for work. His Honour dismissed the argument that his psychiatric condition had arisen due to his abuse of cannabis, because medical experts had confirmed ongoing psychiatric injury well following the cessation of his drug use.
Looking at the allegations of significant cannabis use pre-accident that had impacted on the Plaintiff's work performance, His Honour found against this. He accepted the evidence of the Plaintiff that he was doing well in his employment pre-accident and was considered a reliable worker, and had been informed he was in line for a permanent position with the employer as a consequence. His girlfriend also provided supportive testimony that the Plaintiff's cannabis use pre-accident was social and he was not addicted. She supported the Plaintiff's evidence that he would go months without using cannabis.
In relation to his cannabis use post-accident, His Honour accepted the Plaintiff's evidence that he had stopped his usage by 2013, and he dismissed the argument of the Defendants that the Plaintiff's failure to take a urine test required by their psychiatrist following a review in 2014 indicated the Plaintiff was not being honest in his reporting in this regard. His Honour did accept however that the Plaintiff had increased his cannabis use considerably post accident as the medical evidence supported this, and this cannabis abuse did impact on the Plaintiff's work capacity at the time of his resignation and was a contributor to his decision to resign.
His Honour pointed out during his reasoning that should he find the Plaintiff's resignation from his employment was majorly due to his cannabis abuse, then the Defendants could not be held liable to compensate him for any loss resulting from his election to take illegal substances.
Assessment of Common Law damages for the Plaintiff's motorcycle accident injuries
Pain & Suffering:
In determining the award for General Damages, his Honour considered the Plaintiff's facial fractures with facial scarring to be the dominant injury. He considered such injuries fell within Item 15 of Schedule 4 of theCivil Liability Regulation 2014, a "serious facial injury" with an ISV range of 14 to 25. His Honour assessed the injury as having an ISV at the higher end of the range of 25, and then increased this by 25% to allow for the other injuries including the injuries to both upper limbs, both lower limbs and a back injury, as well as a psychiatric injury, increasing the ISV to 30 and amounting to an award of $45,000.
Past and Future Economic Loss:
Justice McMeekin considered that the Plaintiff should not recover the full loss of income claimed upon his determination that the Plaintiff's resignation from employment was not due to his accident injuries or any psychiatric injury arising from same. His Honour did consider however that the Plaintiff should recover to some extent for past economic loss due to the contribution of his injuries and psychiatric condition which the Court determined did develop some time after the Plaintiff's resignation, and that this could only be awarded in a global sum.
In making his award for this head of damage, his Honour considered the Plaintiff's general ambivalence toward career progression and employment pre-accident, which was raised as his "surfing" attitude by the Defence. His Honour accepted the medical evidence of the Defendant's medical experts that the Plaintiff was able to return to work in clerical or retail sales duties with his injuries, and although he may have some impairment due to his psychiatric condition, this was likely to improve over time. On this basis, His Honour awarded the sum of $40,900 for past economic loss and $291,500 for future economic loss. He based this calculation on the loss of $325 per week from mid-2014 to age 67 years into the future.
His Honour allowed claims for past and future lost superannuation at 9.25% on past economic loss and 11.33% on future economic loss.
Past and Future Care:
A substantial claim was made for past gratuitous care and future gratuitous and paid care, however His Honour considered that the evidence did not support such claims. His Honour determined that the Plaintiff had not met the threshold criteria required under the Civil Liability Act 2003 for any entitlement to claim gratuitous care.
Past and Future Special Damage:
His Honour allowed an award for future pain medication and plastic surgery at around $22,520, and past out of pocket expenses and refunds totalling around $9,000.
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