Loss of earning capacity when working full time in original job

Mills v BHP Coal Pty Ltd [2017] QSC 184

McMeekin J

In October 2014 the plaintiff suffered an injury to his cervical spine and right rotator cuff in the course of his employment with the defendant.

Liability and several heads of damage were agreed. The issues left for determination were general damages, damages for future impairment of earning capacity and damages for future earning expenses.

Relevantly, the plaintiff was working full time in his original position and aged 58 years at trial.

General Damages

After summarising the application of section 306P of the Workers’ Compensation and Rehabilitation Act 2014 (Qld) and section 130 of the Regulations, McMeekin J assessed general damages at $33,230. His Honour took into account the plaintiff’s account of his ongoing pain, the dominant shoulder injury in excess of 12% DPI and cervical spine injury of 5%, allowing an ISV of 19:

[12] Mr Mills has daily and significant pain. He reports that he is in agony. Quite apart from his reports of pain it was evident in observing him in the witness box that he struggles with his right arm. He was barely able to raise it to place his hand on the Bible to take his oath. He frequently held the injured shoulder and grimaced with apparent pain. There was no doubting his honesty or integrity. His companions have commented on his obvious tremors. He has required guided injections of steroids and has twice undergone surgery. He needs pain relieving medication. He resorts to much stronger pain killers and alcohol on weekends to relieve his pain. He experiences numbness, weakness and has anxiety. His problems are aggravated by his duties at work and the long drives that he undertakes to get to and from the mine site.

[13] The impairment ratings by the experts show that an ISV at the top of the range is amply justified and arguably understates the impact of the injuries on Mr Mills

Future Economic Loss

As to the plaintiff’s future economic loss, McMeekin J stated as follows:

[15] … Mr Mills has returned to his pre-accident employment. He is a coal load out operator at the Goonyella Riverside coal mine. He works under a modified duties programme. He has worked at the mine for 42 years and in the wash plant there for decades. He is highly skilled in the work and is entrusted with training other operators. His employer is obviously sympathetic to him, at least under present management. There is no ongoing loss of income. That of course does not mean that there is no loss of earning capacity…

[17] Mr Mills says that he is struggling now to complete the tasks expected of him. His plan is to take a year off work on long leave and then assess how things are. He is owed about 39 weeks’ leave. He generally finds that he is much more comfortable at home and when away from his employment duties. He avoids taking strong pain killers at work. He thinks that he may well not return to work after a long period of leave. Had he not been injured he planned to work to age 70 years. He has little in the way of assets, has a substantial mortgage, and his presently anticipated superannuation pension is well below his present income…

[18] BHP argues that Mr Mills can effectively stay in employment as long as he desires, that there is no pressure on him from management to leave, that he functions well on his restricted duties, and that he was most unlikely to work to age 70 if uninjured. BHP points out that he recently passed his six monthly coal board medical. As well there is the prospect of the degenerative condition becoming symptomatic…

[21] Counsel for BHP had the experts agree that Mr Mills could carry out the principal tasks involved in coal loading, that is, that the tasks were, in their view, within his functional capacities.

[22] That does not assist a great deal however. The short answer to an argument that the medical practitioners think that he can do the work where the principal problem in performing the work is pain, is that it is not their pain. Nor do they have experience with the actual duties. Mr Mills says that despite some of the tasks appearing relatively innocuous – and they involve little more than moving five small levers fractionally back and forwards – he is struggling with his duties…

[23] I accept that Mr Mills is struggling with his constant pain and that he is very likely nearing the time when he will retire from his employment. As well his employer has a duty to protect him and others. If he reaches the stage where they are concerned about safety they will have no choice but to end his employment.

Awarding the plaintiff $610,650, his Honour accepted the plaintiff’s account of constant struggling and pain. His Honour went on to state:

[24] The question of how long Mr Mills might have worked if uninjured is problematic. He is no financial position to give up work. I am sure that he would have continued to work as long as he was able and as long as he perceived a financial need to do so. He plainly enjoys his work, has the respect of his work mates, and even at their most arduous the duties are not particularly demanding. Shovelling coal appeared to be the most arduous but is rarely done.

[26] Malec v Hutton requires that allowance be made for those possibilities that are greater than 1%. That Mr Mills might have worked to age 70 if uninjured involves, in my estimation, a probability of more than 1%. It is very likely – say more than 90% – that he would have worked on if uninjured to age 67, the age that now seems to be accepted as a reasonable retirement age. In that regard I note that those born after 1 July 1957, as Mr Mills was, are not eligible to receive the age pension until aged 67.5 There is some authority that subject to the evidence in any individual case, the pension age is some guide to the future: Baldwin v Lisicic [1993] NSWCA 18.

[27] Mr Mills’ present net weekly income is $2,260.14. There are travel costs in getting to and from work that need to be brought into account. If Mr Mills gives up this employment there is no real prospect of him obtaining alternative employment with his background and at his age.

[28] I assess damages under this head at $650,000. To the extent that there is arithmetic involved I note that a loss of income up to age 67 years delayed one year and discounted by 10% to allow for contingencies results in an award of $610,650.  Something should be added for a possible loss from age 67 to age 70. Given that continued availability of employment was virtually certain so long as Mr Mills remained fit, and the relatively short period of time under consideration, the discount I have adopted is, in my view, generous to the defendant.

Superannuation

His Honour allowed superannuation at the rate of 11.5% in the recently expired EBA as opposed to the averaged statutory guarantee and noted the rate of 11.33% in Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 would be different because the statutory rate had changed.

David Cormack – Brisbane Barrister & Mediator

 

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