Glass half full – alcohol abuser’s deduction for vicissitudes reduced by Court of Appeal

Key Points
  • A plaintiff’s pre-existing problems with alcohol abuse (and its interaction with criminal behaviour) justified an increase in the usual deduction for vicissitudes from 15% to 25%.
  • The critical issue when assessing a plaintiff’s future economic loss is the findings relating to the plaintiff’s ongoing disabilities. Always ensure the right expert is engaged to assess the alleged ongoing disabilities.
  • An award for domestic care and assistance from a commercial provider will be justified where those providing the plaintiff with gratuitous assistance are unlikely to continue to provide such care into the future due to other commitments such as full-time work and other family responsibilities.

This appeal is about:

  1. When the usual deduction for vicissitudes can be increased and for what reasons;
  2. Which experts and expert reports should be given weight over others; and
  3. What evidence justifies an award of future domestic assistance on a commercial basis.

The decision at first instance

The plaintiff was struck by a motor vehicle driven by the defendant.  Liability was admitted and damages were assessed by Gibson DCJ on 25 October 2016 in the District Court of NSW.

The plaintiff sustained severe orthopaedic injuries to his back, left leg and ankle and was also suffering from chronic pain syndrome and an addiction to Oxycontin.

His future earning capacity was a contentious issue.  The plaintiff’s treating orthopaedic surgeon (Dr Richard Walker) believed the plaintiff was totally incapacitated whereas Dr Brian Zeman (a specialist in rehabilitation medicine) believed the plaintiff’s orthopedic injuries had resolved and believed he was fit for light to moderate physical work and sedentary work. Her Honour accepted Dr Zeman’s opinion and assessed future economic loss on the basis of a 25% residual earning capacity.  Her Honour also increased the usual deduction for vicissitudes from 15% to 35% based on the plaintiff’s pre-existing history of alcohol abuse.  Prior to the accident, the plaintiff’s alcohol abuse had begun to impact upon his earning capacity and her Honour found this abuse would have increasingly curtailed the plaintiff’s earning capacity as he aged.

With respect to the plaintiff’s claim for future gratuitous or commercial domestic assistance, her Honour concluded that the plaintiff required 2 hours of assistance each week with domestic tasks.  Accordingly, this was not compensable under the Motor Accidents Compensation Act 1999 (NSW) because the plaintiff’s need for such assistance fell below the statutory threshold.  Since the plaintiff’s sisters were already providing the assistance gratuitously her Honour found there was no basis to award damages for  commercial assistance.

The Court of Appeal

The plaintiff appealed the following findings by the trial judge:

  1. The plaintiff had a residual earning capacity;
  2. A deduction for vicissitudes should be increased from the usual 15% to 35%; and
  3. The plaintiff did not require ongoing commercial domestic assistance.

Macfarlan JA (Meagher JA and White JA agreeing) pointed out that in an assessment of future economic loss, findings about the ongoing disabilities of the plaintiff is the critical issue.  His Honour said, “The point at issue was an orthopaedic one and therefore Dr Walker was the only witness with the expertise to express a view on it”.  His Honour said it was erroneous to accept Dr Zeman’s opinion over Dr Walker’s opinion that the plaintiff had no residual earning capacity.

With respect to the deduction for vicissitudes his Honour agreed the plaintiff’s alcohol addiction (and concomitant criminal behaviour and heightened risk of injury) would increase into the future. The Court pointed out that an evaluation of the appropriate deduction for vicissitudes was an impressionistic judgment and that the circumstances justified an increase in the usual deduction from 15% to 25% rather than the 35% found by the trial judge.

Finally, Macfarlan JA found that the Plaintiff had established a need for commercial care.  His Honour referred to the Plaintiff’s embarrassment of having to rely on his sisters and the plaintiff’s evidence that he would pay for commercial care if he could afford it.  In addition, his Honour noted the plaintiff’s sisters worked full-time, had families (each with two children) and live at a distance from the plaintiff which supported the need for the award of commercial assistance.

The Court of Appeal’s judgment is a good reminder of the importance of briefing the right expert.  It also provides a useful example of the ‘impressionistic’ evaluation of circumstances that justify an increase in the usual deduction for vicissitudes.

Post by Eden Christopher and Freida Stylianou 

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