Frosty medicals smash fortunate worker’s future salary loss funds

Duong v Versacold Logistics Ltd & Ors [2010] QSC 466

Carter Capner Law

A Supreme Court damages ruling this month well illustrates how the clock can be stopped on loss of future earnings calculations when residual disability is assessed as “minor”.

Read more of the article.

Reproduced with the permission of Carter Capner Law.

Chief Justice:

Labour Hire/Host apportionment:

Apportionment of liability: Versacold and APS

[57] As to the apportionment of the respective liability between APS and Versacold, I note the following:

  1. Versacold was primarily responsible for the day to day management of the site, as occupier and the entity in control;
  2. APS inducted the plaintiff and gave basic instruction in relation to his work; and
  3. APS had a presence on the site (administrator and workplace health and safety officer) and conducted safety audits and “toolbox” meetings; yet
  4. APS was aware of a cleaning problem, and failed to ensure that Versacold adequately dealt with it.

[58] Mr Myers referred to Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203, a labour hire case where the employee was injured through the insecure use of a ladder. Forty per cent responsibility was apportioned to the labour hire company, and 60 per cent to the host employer.

[59] The responsibility of the actual employer in that case was greater than in this. That employer had taken no steps at all to secure the safety of its employees. It had not visited and inspected the site, for example, and in addition, had given its employee no instruction in the safe use of the ladder. As put by Giles JA (para 47):

“In the present case the defendant did nothing towards safe working conditions at the warehouse, not even visiting the site to see what the working conditions were. The particular use of the ladder might have been a ‘chance occasion’, but use of the ladder was not, and the defendant did not look to how Concrete would allow a ladder to be used or instruct or train its inexperienced employee against an occasion of using a ladder.”

[60] In this case, the default of APS was not so substantial: APS had given the plaintiff requisite instruction and training, had conducted safety audits and maintained a presence at the site. Each of Versacold and APS bore responsibility for the breach which occurred here. The question is by how much the departure of Versacold exceeded that of APS, bearing in mind that it was Versacold, not APS, which in terms of the agreement had “direct control” over the work place. That put Versacold in a substantially more serious situation in terms of responsibility here than APS.

[61] Drawing guidance from the previous apportionment cases (especially TNT and Maricic) and approaches discussed in Pollard paras 40-45, Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 185 and Hodge v CSR Ltd [2010] NSWSC 27 paras 44, 45, I apportion liability as follows: 70 per cent to Versacold and 30 per cent to APS.

Quantum Summary:

 Age (trial)  Injury  CLA  Uplift  Occupation  Past loss of income  Future loss of capacity  G-v-K
28 Fracture of the right mid-humerus, associated radial nerve palsy, and a wrenching injury to the right shoulder joint$40,000.00

Plus, $10,000 for psychological injuries, but not against APS (the WC insured employer).

n/a –         Forklift operator $90,862.20$698.94 at 2.5 years Nil based on the evidence of Dr Duke as to capacity Past care (not allowable against APS) 10,716.00 based on 3 months – 6/7 hours a week at $24 an hour.

Brisbane Barrister – David Cormack

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