Husband v Hikari (No 42) Pty Ltd [2010] QSC 398

The only issue was quantum and in particular the impact of pre-existing degeneration and an employment history with short durations for each job. In considering the level of proof required his Honour McMeekin J held:

[29] The significant matters to bring into account in the assessment seem to me to be these:

(a) The plaintiff’s commendable attitude to endeavouring to maintain employment, even in positions that were clearly not suited to someone with the restrictions that she had because of her back injury;

(b) The plaintiff’s history of not maintaining employment for extended periods. So far as the evidence discloses the longest period in one position of employment that she seems to have had in her life is with Kawungan Meats for about one year;

(c) The pre-existing vulnerability of the spine to injury, which vulnerability might well have been exposed given the sort of work that the plaintiff sought to undertake.

[30] In regard to that latter matter, counsel were agreed that the evidence did not reach the level of precision necessary to displace the plaintiff’s evidence that the cause of her symptoms were to be found in the subject incident: see Purkess v Crittenden;[4] Watts v Rake;[5] Hopkins v WorkCover Queensland.[6] Rather the evidence of vulnerability to the development of symptoms needs to be brought into account as one of the factors in weighing up the hypothetical future of the plaintiff if uninjured: Malec v JC Hutton Pty Ltd.[7] Following Malec the evidential onus on the defendant to disentangle competing causes is made easier as the Court is concerned with competing possibilities not probabilities: Seltsam Pty Ltd v Ghaleb.[8]

[32] The best evidence that I have as to the plaintiff’s probable earning capacity if uninjured is the fact that she could obtain employment at the Ramada Resort earning $632.45 per week and maintain that employment for 11 weeks. She did that in her injured state. There is no reason to think that she could not have achieved that level of earnings if uninjured.

[35] Whilst there was the prospect that had she not been injured the plaintiff might have obtained full time employment, or better paying employment than she did obtain at Ramada Resorts, her employment history to age 43 does not provide any great confidence that that was her likely future. And while it would not be fair to the plaintiff to ignore that possibility entirely, nor is it fair to the defendant to ignore the prospect that the plaintiff’s vulnerability to developing significant back symptoms might have come to pass before age 65.

[36] In my view these various considerations should result in an assessment of damages under this head of $145,000.[9] I have assumed that the wage at Ramada Resorts reflects the plaintiff’s probable earning capacity had she not been injured, that the plaintiff has a residual capacity of a little over one–half of that on a long term maintainable basis, and discounted only a little more than usual for the vulnerability that she has.[10]

 Age  Injury  Dominant ISV  Uplift  Occupation  Past Loss  Future Loss  G-v-K
48(F) disc herniation, laminectomy –

a whole person impairment in the range of 10% to 13%.

Significant asymptomatic pre-existing degenerative changes.

$55,000.00

n/a n/a  Retail $39,800

Broken periods of pre-accident earnings. Longest job 9 months. Further loss only provided for jobs which were curtailed because of the injury and not all work for other reasons. Cost of travel deducted.

$145,000

$300/week to 65 years

Adopted the plaintiff’s last high paying job as a standard of pay she might achieve if uninjured, apportioned about 50% as residual earning capacity and discounted it by 20%.

 


Summary

[54] The balance of the items claimed by the plaintiff is not contentious.

General Damages $55,000.00
Interest $1,797.07
Past Economic Loss $39,800.00
Interest $6,404.36[12]
Future Economic Loss $145,000.00
Loss of Superannuation Entitlements $16,632.00
Workers Compensation Board Expenses $26,443.87
Fox v Wood $1,865.00
Past Treatment Costs incurred by the plaintiff $3,708.57
Interest $927.00
Future Pharmaceutical Expenses $8,940.00
Future Physiotherapy Expenses $5,214.22
Future Medical Expenses $1,100.00
HIC $694.00
MBF Physio $357.00
Sub Total $313,883.09
Less Work Cover Refund $41,974.57
Net Damages $271, 908.52

 

Brisbane Barrister – David Cormack

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