Luck v Civil Mining and Construction Pty Ltd [2009] QSC 413

 

The plaintiff had previously received damages from judge Botting in respect of an incident in 1989, which resulted in a 15% loss of function of his thoraco-lumbar spine. The work injury the subject of the claim was agreed to have caused an additional 2% impairment. In dispute was how this translated into damages and in particular the plaintiff’s earning capacity (past and future).

 

The plaintiff’s credibility was attacked primarily because of his failure to disclose his true earnings to both Centrelink and Australian Tax Office and his earlier 1989 injury, together with his failure to dislcose to a subsequent employer being on Workers’ Compensation benefits and the 1989 injury. To a lesser degree the plaintiff’s criminal history in respect of drugs offences was also the subject of an attack on his credit.

 

His Honour McMeekin J, noted:

[33] I am conscious that a readiness to conceal income from the Australian Tax Office and Centrelink, and perhaps not a great deal of income, and a willingness to produce cannabis in defiance of the law, does not necessarily lead to the conclusion that an individual should not be believed on their oath. However, taking the picture as a whole there seems to me to be good grounds for accepting Mr Grant-Taylor’s submission that I should treat the plaintiff’s claims with some caution.

 

His Honour then went on to find contrary to the plaintiff’s evidence there had been a recurrence of back pain prior to the subject incident and as evidenced by a period of 18 months on the Disability Support Pension.

 

This set the platform for his Honour’s acceptance of Dr Morgan’s evidence over Dr Van Der Walt:

 

[42] Dr Morgan had a different view. He accepted that whilst some radiological signs were not a good indicator of likely future symptoms, others were. He contended that there was a good correlation between the likelihood of symptoms and a crush fracture of the type that the plaintiff suffered in the 1989 incident. He could not say with precision when pain might come on but he considered it inevitable that there would be pain albeit possibly intermittent. Effectively, as a result, Dr Morgan expressed the view that the plaintiff’s future remunerative prospects have not been altered by the subject incident. Prior to it he was suited to sedentary work and that remains the situation.

 

It is not surprising then damages were assessed very modestly. The economic loss assessments were governed by the decisions of Smith v Topp[7] and Hopkins v WorkCover Queensland[8], with $40,000.00 for past and $35,000.00 for future. Likewise, Generals were assessed at $30,000.00.

 

The sting in the judgment was the referral to Centrelink and the Australian Taxation Office:

 

[67] Given the plaintiff’s admitted failure to disclose income to the taxation authorities and to Centrelink it is appropriate that copies of the relevant papers be forwarded to those authorities to determine what, if any, breach of the law has occurred, and what action should be taken. I direct the Registrar to forward to the Deputy Commissioner of Taxation and to Acting Chief Executive Officer of Centrelink copies of the transcript of the plaintiff’s evidence and of these reasons for judgement.

 

Brisbane Barrister – David Cormack

Related Posts

Recent Comments

    Categories