Australia: A Judge's lesson on quantum theory

This article provides a valuable snapshot of a recent quantum assessment handed down by the Queensland District Court in a personal injury claim.

Facts

The plaintiff, Mr Judge, was assisting in the operation of a cotton compactor on 1 May 2009 when he suffered a severe crush injury to the right forefoot, resulting in the amputation of the second, third, fourth and fifth toes. He commenced proceedings against his employer pursuant to the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCRA).The plaintiff, who had left Ireland in December 2008, had obtained an Australian working visa (valid for one year) before he left, and, for the purposes of extending his visa for an additional year, was required to work 88 days on a farm or in a regional area in Australia during the initial year.

Decision

The major issue in the case turned on the quantum of damages and many aspects of that particular issue were in contest, including:

• the prospect of the plaintiff having stayed in Australia but for the incident
• if he had stayed, what type of work he might have obtained, and for how long
• the actual extent of his residual working capacity, bearing in mind the nature of his physical disability, and
• whether he now had any psychiatric disability.

The Court considered these issues in the course of assessing, amongst others, the following heads of damage:

• Damages for pain, suffering and loss of amenities of life: The incident pre-dated the 2010 amendments to the WCRA. Therefore, the Court did not have regard to the injury scale values under the Workers' Compensation and Rehabilitation Regulation 2003 (Qld) in calculating general damages in this case. Given the plaintiff's relative youth (26 years of age), which meant that he had a significant lifetime in which his permanent impairments would hinder him, but also noting the lower degree of pain and suffering generally, the Court awarded the plaintiff $70,000.00 for this head of damage. In making this assessment, the Court had regard to the opinion afforded by two orthopaedic surgeons, which suggested the plaintiff sustained 7 to 8 per cent whole person impairment (WPI) as a result of his foot injury, and the opinion of a consultant psychiatrist which indicated the claimant sustained 5 per cent WPI as a result of a secondary psychiatric injury.
• Interest on past pain, suffering and loss of amenities: In concluding that the nature of the severe pain and suffering and the considerable disruption to the plaintiff's recreational and social activities was significant, and in the balancing of past and future damages, the Court awarded the plaintiff $1,420.00 for this head of damage (having allocated the sum of $25,000.00 to past loss of this kind). The Court did not employ a specific formula in allocating this loss between the past and present; however, ordinarily the Courts allow a 50/50 split. Therefore, the outcome for the defendants was favourable in these circumstances.
• Loss of earning capacity – past and future economic loss: The Court was satisfied that there was a very significant chance that the plaintiff, if not injured in early May 2009, would have remained in Australia, worked as a plumber and become a permanent resident. In terms of the plaintiff's actual working capacity, the Court considered that the plaintiff would become increasingly physically fatigued, and therefore unwilling to perform his pre-injury duties. However, the Court also found that, given the plaintiff's fortitude and working history, he would continue to undertake lighter plumbing work or its manual equivalent without overtime. The Court considered it was likely that such lighter work would not always be readily available to the plaintiff, and for this reason, noted that the contingencies eventually chosen would have to reflect the fact that there may be times during the rest of his working life when he finds that there are periods when suitable work of a lighter plumbing kind is not available, or open, to him.

The Court awarded the plaintiff $76,930.00 for past economic loss. In arriving at this figure, the Court essentially considered four distinct periods and calculated the additional net weekly earnings the plaintiff would have earned during these periods but for his injury, namely the period that the plaintiff would have continued to work at the cotton farm, the plaintiff's continued employment in a similar job in order to satisfy his visa requirements, the plaintiff's employment as an installer and the associated overtime with that role, and the potential employee benefits in a further role the plaintiff would have attempted to obtain had he not sustained his injury.

For future economic loss, the Court awarded the plaintiff $367,500.00 to account for the difference in his present net weekly income and what he would have earned but for his injury until retirement, which would have provided him with job security and significant employee benefits. The Court assumed a net weekly loss figure of $530.00 until the claimant reached 67 years of age and under the 5% multiplier tables this resulted in an initial figure of approximately $490,000.00. The Court reduced this amount by 25% for the balancing of contingencies, taking into account the possibility that the plaintiff might not have decided to remain in Australia and, in the alternative, may have found himself limited to semi-sedentary or permanent sedentary work causing a limited range of jobs to be open to him.

Overall, the Court concluded that the defendants owed the plaintiff $566,752.19 in damages, which included interest on the heads of damages discussed above.

Implications

The decision provides a useful example of the factors the Queensland Courts have taken into account when calculating quantum assessments, particularly in relation to economic loss, where the injured workers are relatively young and there are numerous factors to be balanced. As this decision reveals, much will turn on the facts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.