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In recent years, there has been a marked increase in personal injury claims in which Plaintiffs have sought significant damages for future economic loss based on hypothetical and aspirational career trajectories including projected promotions, business ventures and opportunities for self-employment.
For insurers, these claims pose a challenge and require thorough forensic investigation to ensure that damages awarded reflect that of the “loss of chance”, rather than the full value of the asserted future earnings.
ASPIRATIONAL CAREERS
In Hart v Frost-Cornwall [2025] VSC 330, the Victorian Supreme Court was required to consider the Plaintiff’s entitlement to loss of future earning capacity following the lost opportunity of self-employment as a roof tiler.
On 5 September 2017, the Plaintiff was a rear seat passenger driven by the Defendant which swerved into the emergency lane of the Western Freeway, colliding with the rear of a stationary bus. The Plaintiff sustained injuries including a broken socket, cheekbone, jaw, left wrist, and as later alleged, injury to his left knee.
The Plaintiff returned to work in November 2017 as a roof tiler after a period of hospitalisation and rehabilitation under clearance for light duties; however, he continued to undertake heavy duties. On 26 February 2018, the Plaintiff’s left knee injury materialised when his knee gave way while lifting heavy equipment. The Plaintiff’s left knee required numerous surgical procedures with ongoing reports of pain, swelling and instability.
As a result of his injuries, it was common ground that the Plaintiff was unable to return to work as a roof tiler. Previously, the Plaintiff had held a series of manual jobs which included roles as a bottle shop attendant, forklift driver, machine operator, manufacturer and fencer; however, he was unable to maintain long-term employment due to his knee-related incapacity and restrictions.
As liability had been admitted, the matter proceeded as a quantum assessment only. Most significantly, in respect of future economic loss, the Plaintiff alleged that ‘but for’ the accident, he would have continued to work as an employed roof tiler with a transition of self-employment as a roof tiler from 1 January 2025.
Crucially, the Plaintiff had a particularly tumultuous childhood. The Plaintiff had learning difficulties and initially dropped out of school in year 10. During adolescence he developed a marijuana addiction, mental struggles, became estranged from his family, and was effectively homeless for a period. However, prior to the accident, the Plaintiff enjoyed a successful rehabilitation, and following a trial as a roof tiler, he had commenced his three year apprenticeship.
Justice O’Meara was not prepared to find that the Plaintiff was ‘on the cusp’ of self-employment in commencing a roof tiling business. Rather, his Honour considered self-employment to be an ‘aspiration for the medium term, at best.’ His Honour placed particular emphasis on the Defendant’s submissions in respect to the Plaintiff’s lack of concrete planning and the broader difficulties he would face in respect of running a business, particularly with a history of learning difficulties.
LOST OPPORTUNITY
The Court was prepared to assess the Plaintiff’s claim for future loss of earning capacity on the basis that ‘but for’ the accident, the Plaintiff would have worked as an employee roof tiler. The Court considered that the issue as to whether the Plaintiff would have become self-employed, was an issue of “lost opportunity”.
As there was a modest difference between what the Plaintiff would have earned as an employed roof tiler and a self-employed roof tiler, Justice O’Meara was prepared to award 40% of the difference to the Plaintiff’s damages for future economic loss prior to any deduction for vicissitudes.
IMPLICATIONS
Courts are prepared to moderate or discount claims for future loss on a basis of “loss of chance” rather than the full value of proposed career trajectory. For insurers, this case underlines the importance of testing future economic loss claims at every stage, including:
· forensic analysis of financial records and employment history, including consideration of any periods of interruptions, underemployment or changes of employers, to argue that post-injury interruptions are independent of any incident related injuries;
· in respect of claims for future self-employment, consider the availability (or absence) of any documentary evidence of such aspirations, including business plans, financing, market research and industry relationships to argue future projections are speculative and should be significantly discounted or even excluded; and
· obtaining vocational expert evidence which identifies suitable roles within the claimant’s capacities, and consider to what extent failure to maintain employment may be caused by non-injury factors, including pre-existing restrictions, geographical preferences or voluntary resignation.
Insurance and reinsurance
Australia