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Jun 03

Compensation Lawyers And How Quantifying Damages Can Be Challenging

Tuesday, June 03, 2014

A victim of an accident may question the necessity of legal representation for their claim. However, it is very important to note that civil litigation is an extremely complex area of law that may often be confusing and frustrating to undertake. Many people would not trust themselves with handling their own surgery. So similarly, it makes little sense to entrust their health and rights to someone who is not a Specialist in Personal Injury law.

One of the most difficult areas falls within the area of compensation and calculating the damages that a victim may receive from their injuries in an accident. There is never any guarantee in how a court may rule a decision and it is important that if someone is injured in an accident, that they seek advice from a skilled personal injury lawyer in order to protect themselves and their family.

Balnaves v Neil Clifford Smith & Anor [2012] QCS 192

Facts

In this case, Neil Balnaves, an executive director and major shareholder of Southern Star Group (SSG), was severely injured in a boating accident that led to a comminuted fracture of the right pelvis, including the acetabulum. He also smashed his right leg and broke more than 40 bones.

Despite a total hip replacement and three weeks of recovery, he still was able to return to work but continued to suffer ongoing pain in his hip and right leg. This pain was aggravated from simple movements such as prolonged periods of sitting, walking and standing.

Initially, Mr. Balnaves was apportioned as 65% contributory negligent for the accident in a separate trial. The issue in this case was determining the calculation of damages for economic loss. There were talks about the sale of SSG to Southern Cross Group Limited (SCG). His argument was that but for the accident, he would still have continued working in the capacity of his executive position and grown the company instead of being forced to sell it due to his inability to work in his capacity as an executive.

Judgment

Justice Byrne, SJA examined the minutes of the Board meetings prior to and after the accident, as well as Mr. Balnaves' own evidence and the testimony of other directors. He found that the sale of the company was a prospect (albeit unfavoured.) The documents reviewed showed no evidence that Mr. Balnaves was unable to perform his duties because of his health.

Justice Byrne, SJA concluded that Mr. Balnaves' post-accident performance was acceptable with no signs of it changing for the foreseeable future. Mr. Balnaves' injury had no effect on the sale of his company.

A consideration that was made by Justice Byrne, SJA was on the issue of remoteness and that the damages for loss of opportunity was too remote because the evidence failed to show how the plaintiff was worse off from disposing of his shares in the company. Balnaves was close to retirement age and would have made about $3 million dollars from the sale and still maintain a seat on the Board after the company merged.

Balnaves was awarded $250,000 for economic loss.

Conclusion

The assessment of damages for a personal injury claim is a complex issue with numerous considerations such as the age of the victim, their personal interests including their family situation, and their stage in their working life.

This can be further complicated when other entities such as businesses, assets and losses of opportunity arise.

If you have been injured in an accident, it is highly recommended that you speak with an expert personal injury lawyer in order to protect your rights and ensure a closer estimate of the outcome of your claim.

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