Tourist Hit By Bus Awarded $2.087 Million Damages
Tourist Hit By Bus Awarded $2.087 Million Damages
New Year’s Eve 2011 changed Mina Yamaguchi’s life forever when she was involved in a motor vehicle accident whilst holidaying in Cairns.
Mina was crossing a Cairns street on a pedestrian crossing when she was run down by a Cairns bus resulting in serious injuries, including organic brain damage, a broken pelvis, and multiple other injuries.
Ongoing debilitation despite treatment in Cairns and Tokyo hospitals
Mina spent the first 18 days following the accident in a Cairns hospital before being evacuated to Japan for treatment in Tokyo.
Despite attempts at rehabilitation, Mina continued to suffer significant problems, chronic pain and debilitation, and developed a serious psychiatric disorder as a consequence.
Prior to the accident, Mina was a totally independent 23 year old, living in her own apartment and enjoying a full social life and range of sporting and recreational activities with her boyfriend. Mina was unable to return to these interests following the accident.
Loss of employment and significant care needs
Prior to the accident, Mina was employed as an auto-parts dispatcher, but following the incident she was unable to return to her work despite having a very sympathetic employer who offered her an extended return to work program on restricted hours and light duties.
Mina’s job was terminated within 12 months of her first commencing a return to work program because she was unable to properly perform her work duties.
Mina’s difficulties were the result of severe slowing of her capacity to process information, caused by loss of executive functioning from her brain injury.
unable to grocery shop on her own or do the cooking and household chores
Mina also required a great deal of assistance and care from her family following the accident, primarily provided by her parents, who gave evidence at the trial that they would have to remind her to eat, shower and to attend to turning off gas and electrical appliances which she would often leave on when left without supervision.
They also testified that Mina was unable to grocery shop on her own or do the cooking and household chores due to her injuries.
QBE argued against unemployability and need for care
The CTP insurer of the bus driver who hit Mina admitted liability for the accident and accepted that Mina’s injuries were extensive.
However, they argued that Mina still had a capacity for some residual employment in the future with appropriate training and rehabilitation.
QBE also argued that the damages claimed by Mina for care and assistance she had required since the accident and would continue to require into the future were excessive and based on a “mothering” attitude from her parents rather than a reasonable need.
Court finds Plaintiff unemployable due to injuries
Justice Applegarth however agreed with the claims made by the Plaintiff.
In handing down his decision, he accepted the evidence of Orthopaedic Surgeons, Drs Pentis and Morris, that Mina was extremely limited with physical tasks in her work, having only a capacity to lift a few kilograms before becoming fatigued.
His Honour also accepted that Mina would have great difficulty in being retrained into any suitable employment due to memory dysfunction and difficulty processing information caused by her head injury. He accepted that Mina found it difficult to retain information taught to her from one day to the next.
plaintiff is likely to remain unemployed well into the future
Despite the evidence of doctors and QBE’s Occupational Therapist that Mina may benefit from further vocational rehabilitation to get her back to some form of limited work in the future, Justice Applegarth found this highly unlikely in the circumstances of her injuries.
In finding that Mina had been left permanently unemployable due to the accident, he stated:
“…The plaintiff is likely to remain unemployed well into the future and quite probably for the entirety of what would otherwise have been her working life..”
Court rules care at 28 hours per week appropriate in the circumstances
Justice Applegarth also accepted the evidence of Mina’s parents as to the care she required on an ongoing basis at 28 hours per week, and stated that he did not consider the care claimed was as a result of “mothering”:
“I do not regard these things as ‘mothering’ because the needs are actual in that she requires this kind of assistance which, fortunately for the plaintiff, is able to be provided by loving and devoted parents”.
The Plaintiff found to be left with a "sedentary and sad life"
Justice Applegarth commented about the significant reduction in the Plaintiff’s quality of life as a result of the accident, stating that Mina had now been left with a “sedentary and sad life”.
He found her injuries fell within the ISV Scale rating for injuries at 55, and therefore she was entitled to General Damages for pain and suffering and loss of her amenities of life in the sum of $130,600.
Compensation awarded at $2.087 million
Damages were awarded as follows:
Pain and suffering at $130,600;
Past and future economic loss at $975,000;
Past and future care at 28 hours per week at $36 per hour, totalling $1,033 million;
For medical expenses, Mina was awarded $170,000.
The total judgement was for the sum of $2.087 million, to be given in Japanese Yen in the amount of 164,703,785 to be managed in Japan, in order to avoid reduction in damages from monetary conversion rates.
If you are interested in reading the full decision of His Honour Justice Applegarth, read the full case: Yamaguchi v Phipps & Anor  QSC 151.
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