Whiplash and injuries in a motor vehicle accident
Sungki Min came to Australia from South Korea in September 2012 on a working holiday visa. He was intending to eventually study and achieve a diploma in business in Brisbane, whilst working part time undertaking silicon sealing work. It was his hope to eventually achieve permanent residency in Australia.
Sungki was unfortunately involved in a motor vehicle accident in January 2014, as a result of which he sustained a whiplash injury to his lumbar spine.
This injury unfortunately significantly impaired his capacity to pursue his intended career path and, as a result, he sought compensation for whiplash.
Liability for the motor vehicle accident was not in dispute
Sungki brought a claim for the loss and damage he sustained as a consequence of his motor vehicle accident injuries.
His case was heard in the District Court at Brisbane in May 2016 before his Honour, Judge Dorney QC. Sungki was 30 years of age at the time of the accident, and 32 at the time of trial.
The extent of damages and it’s longer term impact
Neither liability for the accident and the fact that Sungki had sustained a back injury were not in dispute.
The only matters in issue were the extent of Sungki’s back injury, its impact on his pre-injury lifestyle and employment, and the loss and damage he had sustained as a consequence.
The extent of the plaintiff’s back injury was not in dispute
Sungki’s back injury was accepted by medical experts, who gave evidence during the trial that Sungki’s injury had resulted in a whole person permanent impairment of between 5 and 7%.
One expert provided evidence that his 6% assessment of impairment should be reduced to a 4% impairment due to pre-existing degeneration in the lumbar spine seen in radiographs. However he conceded under cross-examination that if he had examined the Plaintiff prior to the car accident, he would have been hard pressed to ascertain any impairment.
As such, the medical experts were in virtual agreement as to the extent of Sungki’s back injury at trial.
Visa entitlements regarding continuing employment in Australia accepted by court
The issue of Sungki’s visa entitlements and whether he would have been able to continue working and earning income in Australia became a focus for the Court.
The evidence provided was that Sungki was working hard to achieve permanent residency in Australia and had been hoping to establish sponsorship.
He gave testimony that he had in fact set up sponsorship with one business owner. However, after Sungki’s road accident, this did not occur as Sungki was no longer seen as a viable candidate.
Reduced work capacity due to back injury from motor vehicle accident
In relation to his work capacity after the car accident, Sungki gave evidence of having difficulty undertaking his silicon sealing work which involved a great deal of physical exertion and repetitive bending and twisting.
He testified that he had been required to either employ people to help him undertake the work due to his injuries, or he had to turn the work down.
These work restrictions reported by Sungki were accepted by the medical experts at trial, who all agreed that the Plaintiff would have difficulty undertaking his silicon sealing work with his back injury, and would be better suited to less arduous work activities.
They recommended a transfer of focus onto more sedentary light work, such as administrative duties.
Finding less physically demanding work
Unfortunately Sungki had limited chance of finding administrative work in Australia given his limited English skills.
Sungki gave evidence at trial via an interpreter, which confirmed the difficulties he had with the English language.
The defence made efforts to point to Sungki’s undertaking a course of study in Australia in business in response to his claims that he had a poor understanding of English. However, evidence was accepted by the Court that the purpose of this was more for his own benefit in understanding how to run his own silicon sealing business, rather than to pursue a career in business or administration in Australia.
The Court also accepted Sungki’s evidence that he was a hard worker and would have, but for the car accident, worked as many hours as possible undertaking his silicon sealing business.
Calculating damages to be awarded
When calculating the damages to be awarded to Sungki to compensate him for his motor vehicle accident injuries, the Court considered what residual earning capacity was left for Sungki, working in South Korea where he still had family, in more appropriate sedentary employment.
This was particularly important to his calculation of future economic loss, the major component of his damages claim.
After taking all of his circumstances into account, the Court determined that it was appropriate to reduce his future loss as a silicon sealer by 50% allowing for future residual earning capacity and contingencies of life.
Calculation of compensation and damages for motor accident injuries, loss and damage
The Court considered that a retirement age of 62.5 years was appropriate given Sungki was working in an industry involving arduous work.
The Court awarded the Plaintiff around $250,000 for future economic loss and around $82,000 for past economic loss.
It also awarded $13,200 for pain and suffering and loss of amenities of life (General Damages), and around $10,000 for past and future medical expenses.
Plaintiff awarded damages of $355,094
The Court did not allow the Plaintiff’s claim for future care and assistance, as it did not feel there was sufficient evidence as to how any accurate calculation was to be arrived at for this need.
Superannuation was also not awarded, as the Plaintiff was self-employed at the time of the accident and the Court considered that it was likely he would have continued in that vein in the future.
The Court awarded damages to the Plaintiff in the total sum of $355,094.00.
A lack of questioning by the defence
In handing down his decision, Judge Dorney QC indicated that the Plaintiff’s success in achieving the damages he did was due to a lack of questioning by the defence as to his earning capacity pre-accident and his prospects of obtaining permanent residency and appropriate visas to continue working in Australia.
Read the decision handed down on 23 May 2016 in Brisbane District Court in full to learn more about seeking compensation for whiplash: Sungki Min v Huang & Ors [2016] QCD 116.
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