Australia: Beware the symptomatic short term employee

Focus: Phillips v MCG Group Pty Ltd [2012] QSC 149
Services: Insurance
Industry Focus: Insurance

Phillips v MCG Group Pty Ltd [2012] QSC 149


This recent quantum only decision handed down by Justice Mullins in the Queensland Supreme Court focuses on the calculation of general damages, past economic loss and loss of future earning capacity in circumstances where the plaintiff had a pre-existing injury, was taking daily pain medication, had a varied work history and had only been employed by the defendant for a two week period.


The plaintiff injured his back while driving a scraper at a mine site on 28 August 2008 ("accident"). Liability for the injury was admitted and the trial proceeded in relation to quantum only. Many aspects of the assessment of the plaintiff's damages were agreed between the parties, with the dispute being in relation to general damages, past economic loss and future earning capacity.


The court awarded the plaintiff the sum of $413,082.39.

Employment and medical history

After sustaining a back injury in 1990, the plaintiff underwent a spinal fusion operation in 1992 and was subsequently prescribed with various pain medication which allowed him to manage his pain and continue working. In the ten year period prior to the accident, the plaintiff had many jobs, with none lasting more than two years. He had worked at the defendant's mine site for two weeks prior to the accident. After the accident, some of the plaintiff's pain relief medications increased and further medications were prescribed. The plaintiff had not returned to any paid employment after the accident and had since received a disability support pension.


The Court found that the plaintiff clearly overstated his prior work experience for the purposes of his pre-employment medical examination. The plaintiff conceded that he "fudged" his resume to suit the job. While the Court commented that the plaintiff's history of employment, medication and treatment since the 1990 injury did not always accord with the evidence, it largely accepted the plaintiff's evidence. The Court noted that it was not surprising that there were discrepancies in the plaintiff's evidence, given the specific events, treatment and medications had occurred over a 21 year period. The Court found that the plaintiff was overly ambitious about the physical activities he could have maintained in the medium to long term, but for the incident, due to the high levels of medication he was taking to maintain his physical activities prior to the incident.

General damages

The Court considered that the accident should not be regarded as the cause of all of the plaintiff's pain and suffering and noted that while the plaintiff's enjoyment of life had been diminished prior to the accident, he had managed an active lifestyle. The Court also considered the significant medications the plaintiff required before the accident as well as the increase in medications he required after the accident. For these reasons, the Court assessed the plaintiff's general damages at $50,000.

Economic loss

The Court found that the medical evidence supported a conclusion that the plaintiff had no residual earning capacity after the accident. The Court concluded that despite the plaintiff's tenacity in obtaining a job in the mining industry (including riding his motorcycle 800 kilometres to commence that employment), he was unlikely to have continued in that particular job in the mining industry for any length of time. In coming to that conclusion, Justice Mullins took into account the plaintiff's work history, pain from the pre-existing back injury and extensive medication regime.

Justice Mullins took into consideration the fact that the defendant ceased its operations at the subject mine site at the end of December 2009, and said that although this did not necessarily mean the end of the plaintiff's employment, his prospects of continuing after that time were extremely limited. Her Honour calculated past economic loss on the basis of the wages the plaintiff could have earned at the mine site until December 2009 and thereafter until trial in accordance with his average net weekly earnings from the two years prior to commencing employment with the defendant, with a 20% discount.

The Court found that it was appropriate to calculate the plaintiff's future economic loss on the basis of a further ten years employment (to age 65) based on the issues which affected the continuity of the plaintiff's employment prior to the accident (such as his pre-existing condition, medication regime and prior work history). Justice Mullins used the same approach as she took to the assessment of past economic loss (that is, a calculation on the basis of his average net weekly earnings for the previous two years) although considered the discount ought be slightly higher, and as such, she discounted by 25%.


A decision of this nature will always turn on its own facts, but it does demonstrate that the Court will not be constrained by strong evidence of a pre-existing condition which is symptomatic at the time of the incident in making substantial awards for future economic loss.

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.

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