Future economic loss is frequently the most significant and
controversial of the heads of damages in personal injuries
In this Alert, partner Robert Tidbury and senior associate Anna
Hendy outline the factors that may be considered by a Court in
awarding a global sum for future economic loss in such
circumstances where the plaintiff's post-injury income exceeds
his or her pre-injury income, with reference to the recent
Haylett v Hail Creek Coal Pty Ltd decision.
Key take away points
Where the plaintiff has returned to work in a higher paid role
but risks periods of unemployment, the Court may take into account
the higher pay rate in considering the appropriate future economic
Where there is evidence a plaintiff is at risk of periods of
unemployment, the Court may take into account the disadvantage to
the plaintiff in being required to disclose his or her injury
history to prospective employers.
Even if the plaintiff has retrained into a new role, he or she
may be compensated for the loss of opportunity to work in his or
her pre-injury role.
In this quantum-only matter, a 42 year old plaintiff is alleged
to have suffered referred pain in his right elbow over a period of
time from January 2010 in the course of his employment as a
bulldozer driver. Radiological investigations carried out in April
2010 revealed a C6-7 disc protrusion. On 9 August 2010, the
plaintiff underwent a C6-7 discectomy and fusion to his neck.
He returned to work with his employer on 20 October 2010 on
light duties. He was then retrained by that employer to work as a
member of a drill crew at a mine, on a significantly higher weekly
income than his pre-injury income. The Court accepted that the
plaintiff was able to carry out those duties on a full time basis
with some difficulty. The plaintiff remained employed in this
alternative role up until the date of judgment.
In his decision, Baulch J accepted Dr Cook's assessment for
the plaintiff of a 25 percent whole person impairment over Dr
Weidmann's evidence for the defendant. The parties were in
agreement about most of the heads of damage and it was left for the
court to make an award for general damages and future economic
In awarding a global sum of $500,000 for future economic loss,
Baulch J considered the following factors:
If the current trend continued at the mine where the plaintiff
was employed, his already high earnings were likely to increase.
Therefore, the Court concluded that were the plaintiff to suffer
economic loss in the future, such loss would be incurred at a rate
of not less than $1,750 net per week, the plaintiff's higher
post-injury income, during any period in which he was
Despite acquiring a new skill as a result of retraining by his
employer, the plaintiff remained unfit for return to work in his
pre-injury role and his preferred role of dragline operator.
The plaintiff's previous employment had always involved
physically-orientated work and he must disclose his injury and
claim history to any prospective employer, putting him at a very
significant disadvantage when competing with able bodied
With between 23 and 25 years working life remaining, if the
plaintiff continued to work for that entire period at his present
rate of earnings, his future earnings would have a present value in
the order of $1,300,000. When arriving at a global sum of $500,000
for future economic loss, his honour remarked that the amount was
slightly less than 40 percent of the plaintiff's notional
When the other heads of damage agreed by the parties were
incorporated into the judgment, the total award made to the
plaintiff was $637,872.54.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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