Future lost earning capacity
- Master Khan played soccer for one year from about 2013 until the year of the motor vehicle accident. He played in an ungraded side. He gave evidence that in that year he entertained hopes of having a career as a professional soccer player, although that claim was not otherwise evidenced or particularised. No evidence was given of his level of performance of himself or his team other than his own evidence. He also played Australian Rules football. He ceased playing soccer in about late 2014 because of injuries subsequent to the accident. He broke his arm and later twisted his ankle.
- In view of the absence of any independent evidence of Master Khan's level of proficiency in soccer, his limited time of one year or so playing the game, his other injuries, and his acceptance that he ceased playing soccer because of those injuries, I do not believe that the motor vehicle accident played any part in depriving him of a career as a professional soccer player. I am satisfied on the evidence that there was no real possibility of that career occurring absent the accident.
- Master Khan also complains about diminished concentration and academic performance. This complaint is not supported other than by his own oral evidence. His school reports were tendered, as was a schedule of his results over the years before and after the accident. Those documents demonstrated none of the symptoms of which he complained: problems with teachers; needing to regularly leave class; lack of cooperation with others and the like. His results and teachers' comments were generally satisfactory, both before and after the accident. His results after the accident were almost identical to those before. If anything, on average there may have been a marginal improvement.
- Accordingly, I do not accept that Master Khan's results have manifested any decline since the accident and do not indicate a reduced earning capacity.
- However, it appears to be accepted by the medical experts on both sides that Master Khan does have a residual minor soft tissue injury in his neck and that he suffered a mild adjustment disorder as a result of the accident, which manifests itself in some increased levels of anxiety. Dr Qidwai found more significant injuries, including lower back injuries, frequent headaches and dizzy spells, and proposed more extensive treatment, but these conclusions are based on a history which does not accord with what occurred. Dr Qidwai, presumably based on Master Khan's report to him, found that Master Khan, as a result of the accident:
"was badly shaken and sustained a whiplash to his neck. He was in bad pain in neck, back and was shocked...He was taken to Westmead Hospital by ambulance with his father where he stayed for 2 days". [2]
- There is x‑ray evidence of minor or mild disc bulges at the L4/L5 and L5/S1 level, which may have resulted from the accident, but his lower back remained asymptomatic for several months after the accident. A MAS assessment determined a zero percent level of whole person impairment for the lower back issues. The complaint of neck pain was not manifested by any x‑ray but is accepted to be a soft tissue injury and assessed at a 5% whole person impairment. Thus, there remains a mild physical disability principally for the neck injury. In addition, there is a mild adjustment disorder with anxiety found by Master Khan's psychiatrist, Dr Ahmed, and also by the MAS assessor, Dr Rikard‑Bell, but no post-traumatic stress disorder was found by those experts and I accept their view over that of Ms Gilbert, the psychologist.
- Damages for loss of future earning capacity is governed by s 126 of the Motor Accidents Compensation Act 1999, which provides:
"126 Future economic loss - claimant's prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
- Assessment of loss of future earning capacity is not an exact science particularly in respect of a minor whose career remains in the future. There is a large discretion in determining the appropriate amount. [3] The test is whether diminution in earning capacity is or may be productive of financial loss. [4] It is appropriate to award damages by way of a buffer where the impact is difficult to determine, [5] including if there is a "smallish risk" of lost employment in the future. [6]
- In my view, Master Khan has residual injuries in the form of a minor neck injury and the adjustment disorder. Whilst the evidence indicates that this has had no effect on his educational progress and thus likely to have no effect on his future employment, there is a real possibility that a persistent neck complaint or the adjustment disorder with anxiety could impact on his future employment. In those circumstances, bearing in mind his youth and the uncertainty of the future, I think it appropriate that he be awarded an amount as a buffer against the possibility that either his physical or psychological complaints could in the future operate to diminish his earning capacity. I propose to award the sum of $40,000 as a buffer.