The first time the 2013 CTP regime is judicially considered in SA The first time the 2013 CTP regime is judicially considered in SA

The first time the 2013 CTP regime is judicially considered in SA

9 June 2022 | Compulsory Third Party (CTP)
Tags CTP

In spite of being introduced in 2013, changes to Civil Liability Act 1936 for CTP claims had not been judicially considered until this matter proceeded to in the District Court in 2021.

The amendments included the adoption of (an amended version of) Queensland’s Injury Scale Value (“ISV”) system as a tool for assessment of non-economic loss in CTP claims. There was also statutory limits placed on other heads of damage and ISV thresholds for heads of damage including future economic loss, gratuitous services and loss of consortium.

The injured person’s non-economic loss is to be assigned an ISV from 0 to 100. The Civil Liability Regulations 2013 set out the framework of how to determine the ISV including detailed commentary regarding an ISV range for a number of injuries that could be sustained.

Whilst the ISV is not a new concept, this case marks the first time the Court has considered the South Australian ISV regime as set out in the Act and Regulations.

Background

The applicant was a 25 year old female who was injured in a motor vehicle accident whilst riding her bike to work and claimed damages for psychiatric and physical injuries.

Determination of the ISV

The determination of the ISV was uncontroversial and followed the legal framework set out in the Civil Liability Act and Regulations.

It was held that the applicant’s dominant injury was her right shoulder with an ISV range of 6-10 (moderate injury- Item Number 92.2) and to reflect the level of adverse impact of her multiple injuries, the Court found that it was appropriate for the ISV of the dominant injury to be higher than the maximum of 10. The ISV was increased by 25% and rounded up to a whole number to 13.

Economic Loss

The 2013 changes to the Act included prescribed criteria for the applicant to establish future loss of earning capacity. Section 56A(4) provides that the Court must only take into account future events (i.e “inferences as to circumstances”) where the Court is able to evaluate the change of that future event occurring and evaluates the chance as being 20% or more. Judge Thomas considered the Act prescribes events with chances of less than 20% are to be regarded as “speculative and ignored” and the Act required relevant circumstances to be proven with greater certainty than under the common law transparency.

Her Honour dismissed the applicant’s argument that more lucrative employment might have been available if she had been able to finish her Bachelor of Commerce degree because she found that the applicant had not lost the capacity to study. Judge Thomas outlined the reasoning she relied upon to reach this conclusion and assessed the applicant’s decision not to complete her university degree for reasons unrelated to the accident as having more than a 20% chance of occurring.

However, Judge Thomas did accept that it was “unlikely” that the applicant would be able to fulfil the requirements of a permanent team leader role or progress to any more senior and higher remunerated position involving people management as a result of her accident related PTSD, presumably accepting that the applicant would satisfy s56A(4) without confirming the same.   

The applicant’s award for future economic loss was calculated as the difference between her current salary as a credit assessor and what she would have earned as a permanent team leader.

Implications

A very important aspect of this case was that despite Judge Thomas being very critical of the evidence given by the applicant, her roommate and partner, a significant allowance for future economic loss was awarded based on the lay evidence given by the applicant’s employers.

The evidence provided by the applicant’s employers that she had an inability to regulate her emotions in dealing with conflict with subordinates and her superior in the workplace thereby adversely affecting her functional capacity to meet the basic requirements of the position of team leader.

In situations like these, it can be difficult for a respondent to predict what evidence a lay witness will give. Particularly in circumstances where the oral evidence may not be consistent with discovered documents in the parties’ possession. In this case, the evidence of one employer, Ms Reid, that there were “documented conversations” with the applicant, during which she counselled the applicant about inappropriate workplace communications were not included in the applicant’s employment file produced on subpoena and the quarterly performance reviews did not mention relevant issues.

Therefore, an exchange of lay witness affidavit evidence before Trial should be considered in jurisdictions that do not routinely require it.   


Angela Therese Plumridge v Kostantinos Pandelis [2022] SADC 42

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