Principal contractor found to owe a non-delegable duty of care to a labour hire contractor

Love v North Goonyella Coal Mines Pty Ltd [2017] QSC 140

The plaintiff was injured roof bolting with a colleague, Mr Saliba in an underground mine when the roof bolting machine known as a Rambor (weighing between 40 and 48 kgs) and operated by Mr Saliba fell from a height on the back of his head (the incident). The plaintiff was employed by a labour hire company (Wilson Mining – Third-Party) and working at the mine controlled by the defendant (North Goonyella Coal Mines).

The defendant was the occupier and operator of the mine and “coal mine operator” for the purposes of the Coal Mining Safety and Health Act 1999 (Qld) (“CMSHA”).

In a previous application, McMeekin J determined that the Third-Party claim involving the employer would be heard separately. There was no dispute that the Civil Liability Act 2003 (Qld) did not apply and hence relying on his Honour’s own decision in Kerle v BMA & Ors[1] the claim was decided on common law principles. In dispute was the factual basis for the cause of the injury and the liability of the defendant as occupier and principal contractor for the injury of a labour hire employee (independent contractor) in the context of other contractors having potentially caused the injury. Further in contention was the causation of subsequent injuries to the assessment of the plaintiff’s damages.

Liability

There were a number of contractors on the mine site, including Wilson Mining. The employees of Wilson Mining wore a distinctive uniform, and so did at least one other contractor. The defendant’s employees also wore a distinctive blue shirt with the company’s logo. But, complicating this was other employees wore blue uniforms.

The Site Senior Executive for the mine was Mr Carter who placed the other employees in similar coloured uniforms for the purpose of team building. However, Mr Carter was not employed by the defendant, but a subsidiary of related companies but nevertheless had the power to control employees.

The defendant controlled the mine and organisation of the work. The mine deputies albeit employed in the broad sense by the defendant controlled the equipment used, where the work was undertaken and the performance of the work. The site of the incident was taped off with a tag to indicate that Wilson Mining were working in that location. Previously, the plaintiff and Mr Saliba used roof bolting machines described as a QDS and an Airtrack bolter. On this occasion, they were required to use the Rambor machine because the other machines had been taken elsewhere. It was not in dispute if the QDS and an Airtrack bolter were used, the incident would not have occurred. The Rambor machine was pneumatically driven and relied on the supply of compressed air to function, a critical feature in his Honour’s factual findings as to the cause of the incident.

Roof bolting involves drilling into the roof of the tunnel underground into the rock strata. The drill rods at the time of the incident were seven feet in length and the machine was operated vertically into the roof.

Mr Saliba was the superior of the plaintiff, and no other person from Wilson Mining was present on the day of the incident. Mr Saliba had control of the Rambor and described ‘feathering’ the air pressure to engage the drives of the machine and maintain the rotation of the drill and control of the machine. Mr Saliba gave evidence that the air pressure dropped and the machine started to come down and then hit the plaintiff:

“Well, yeah, that day, like I said, you turn your rotation to get your square drives to line up and it – it just – it’s like it bled the – it dropped pressure and – and the gopher came off the steel and – and I went – went to push the air back up, as in to get – get him back up there and there was no air pressure and, I said fuck. Look out, mate. She’s coming down, and, yeah, when it come down it hit Marc.”

So after it fell you tried to engage the air pressure to raise the leg? Correct, yeah.

It didn’t respond? No. No. There was nothing there.”[6]

Mr Saliba gave evidence of the immediate aftermath following the incident involving an unidentified person in the Eimco, including:

“…We have underground ambulances and I – I sort of run out in the travel road and looked up and down to see a sign for a phone, like a phone cut-through and the – at this stage I saw a guy that was, you know, not far up the roadway where our hoses were running and he – he – he had two hoses in his hand, re-joining the hoses and I said, “What the fucking hell are you doing, man?” I said, “That’s our air”, and he goes, “Oh.” I said, “Bloke’s hurt in here, hey”, and he goes, “Fuck. Sorry, mate.” He said, “I” – he said, “I didn’t fucking know” [7]

The cause of the incident

Mr McDougall, an expert engineer, gave evidence. The accepted evidence was that in the event of a sudden uncoupling of the drill chuck and drill steel, the roof bolter being top heavy would tilt, and an operator in Mr Saliba’s position would have limited ability to control it in a vertical position. Hence, the cause was either Mr Saliba failing to control the machine or the loss of air supply to the machine.

His Honour had no difficulty in accepting the evidence of Mr Saliba who he found to be “impressive” and that the cause of the incident was the unidentified person cutting the air supply who fled the scene and has not since come forward to take responsibility.

The defendant objected to the reliance of the conversation on the basis it was hearsay.

His Honour found the statements were admissible insofar as they went to the state of mind:

[43] I note that the evidence of the statement by the Eimco operator (“Sorry, mate” and “I didn’t fucking know”)[10] was the subject of objection on the grounds of hearsay as against the defendant, it not being shown that he was an employee and, even if that be assumed, that it was not shown that he was authorised to make admissions on behalf of the defendant citing Clark v CA Kruger & Sons Pty Ltd.[11] I do not base my finding on the statement by the operator. But I do not see his expression of regret as necessarily connoting an apology for any misdeed (which I think prompted the objection) as opposed to regret at the knowledge that someone had been hurt. I allowed the evidence in on the ground that it was original evidence of the speaker’s state of mind – that the operator was “sorry” and that he was ignorant of some fact – presumably that the air hose was being used by others. Such statements going to a state of mind are admissible: see Walton v R.[12] However I do not regard the truth of the statement as of any great relevance. At most it suggests that the operator did not check to see where the air hose led. What may be of significance is what was not said. There was no claim of any right to use the hose or any complaint that the Wilson Mining employees had breached some operating procedure.

His Honour further found that despite the unidentified Eimco operator’s negligence, the defendant did not have a system in place to ensure that such an intervention did not occur.

Finding on liability

In finding the defendant liable for the unidentified Eimco operator’s conduct, McMeekin J distinguished his previous decision in Kerle v BM Alliance Coal Operations Pty Limited & Ors[15] and noted that the relationship of principal and independent contractor does not of itself give rise to a common law duty of care: Leighton Contractors Pty Ltd v Fox[16] but there may be special circumstances to impose such a duty: Stevens v Brodribb Sawmilling Co Pty Ltd[17]:

“The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur.”[18]

McMeekin J:

[51] Precisely what those features are is still being worked out case by case. What is clear, is that the duty can be owed not only to the contractor but to the contractor’s employees: Tolhurst v Cleary Bros (Bombo) Pty Ltd;[19] Sydney Water Corporation v Abramovic.[20]

[52] The risk of personal injury in Stevens arose at the worksite and out of the potential for confusion in the organising of activities between multiple contractors. It was held that the entrepreneur who had engaged the various contractors owed a duty of care akin to, but more limited than, that of an employer. Mason J said:

“Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines …”[21]

[53] Brennan J said:

“… An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”[22]

[54] The continuing authority of these statements was recognised in Leighton Contractors Pty Ltd v Fox.[23]

McMeekin J found a duty of care was owed by the defendant to the plaintiff and further the duty was analogous to that owed by an employer:

[55] Here there were a number of independent contractors on the site. Just how independent some of those contractors were is debateable given the evidence from Mr Carter that North Goonyella even controlled the uniforms they wore. But the fact of the presence of multiple contractors on site gives rise to precisely the duty of care recognised in Stevens. Hence North Goonyella owed a duty to Mr Love to have in place safe systems of work as Mason J described in Stevens.

[56] But I think that the duty here is more extensive than that discussed in Stevens and analogous to the duty owed by an employer. Here the relationship between North Goonyella and Wilson Mining is not simply that of principal and independent contractor. The pleadings,[24] as well as the evidence, indicate that Wilson Mining was a labour hire company providing labour to North Goonyella. The evidence of Mr Love and Mr Saliba is that North Goonyella exercised virtually complete control over them. Where people worked, what tasks they performed, what equipment they used, and indeed how they carried out their tasks all came under the control of North Goonyella or the people the company had put in charge.

[57] North Goonyella submitted that the evidence showed this was not a labour hire arrangement. It submitted that Wilson Mining were providing specialist expertise, equipment pertinent to that, and supervisors. It is true that Wilson Mining were engaged to deal with emergency response and long wall recovery after roof collapses. But that is not what these men were doing. They were engaged in what they called secondary response, namely roof bolting. That is simply labouring work. There is no great expertise involved. The only equipment identified as supplied by Wilson Mining was a passing reference to a pump used in relation to the recovery work, not roof bolting. The submission that Wilson Mining controlled the manner in which the work was done[25] ignores completely the fact that North Goonyella took away the alternative roof bolting machines and supplied (and so directed that it be used) the Rambor machine. I have mentioned the limited involvement of Mr Rodriguez who is said to be the supervisor. In all relevant respects this was a labour hire arrangement.

[58] While I am conscious that one must be wary of labels, it has long been held that host employers can owe a duty of care to employees of labour hire companies analogous to that of the employer: TNT Australia Pty Ltd v Christie.[26] That comes about because the degree of control exercised over the workforce, the workplace, and the systems of work by the host employer is indistinguishable from that usually exercised by the employer. There is no doubt that North Goonyella exercised that significant control here. In my view that feature justifies the imposition of the more extensive duty of care here.

McMeekin J then went further than his Honour’s judgment in Kerle v BMA & Ors and found that the duty owed by the defendant occupier was non-delegable, meaning that not only did it have to act reasonable, but the defendant was required to ensure others did so as well:

[59] The remaining question is whether the duty owed was personal and non-delegable. The duty that arises out of various relationships has that characteristic. That owed by an employer, is one such relationship. In Kondis v State Transport Authority[27] the employer was held liable for the negligence of its independent contractor (a crane operator) in failing to adopt a safe system of work. Mason J there described the duty as a personal duty to ensure that reasonable care is taken[28] and said[29]:

“The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.

That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee’s safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.”

[60] Mason P and Foster AJA held that the duty owed by the host employer in TNT v Christie also had that characteristic.[30] In my view the duty owed here has that same characteristic and for the same reasons identified by Mason P.

[61] The relevant distinction between the situation here and that in Kerle (where I held that the mine operator did not owe a personal and non-delegable duty[31]) is that in Kerle the mine operator (there BMA) did not have that day to day contact and control which it is evident existed in the relationship between North Goonyella and Mr Love.

[62] The significance of that finding is that is not enough for North Goonyella to say it has acted reasonably. It was required to ensure that others – such as the unidentified Eimco driver or Mr Saliba or Wilson Mining – exercised reasonable care as well.

McMeekin J having decided the issue noted that determination of vicarious liability was not strictly required. His Honour considered the issue and in particular the decision of Hollis v Vabu Pty Ltd.[34]. Based on his Honour’s reasoning that the independent contractors were not independent as that term is usually understood because of the defendant’s control over the contractors. His Honour found it was “something less than independent contractors and very close to employees”.

McMeekin J concluded as to the extent of the liability and in favour of vicarious liability:

[79] A somewhat similar problem arose in Hollis.[44] There a bicycle courier struck and injured a pedestrian. The courier was identified by his uniform as a person engaged by the defendant but otherwise he could not be identified. The defendant courier company claimed that all their couriers were independent contractors and that it was not liable for their negligent acts. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ said at 40 [42]:

“In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In delivering the judgment of the Supreme Court of Canada in Bazley v Curry, McLachlin J said of such cases that “the employer’s enterprise [has] created the risk that produced the tortious act” and the employer must bear responsibility for it. McLachlin J termed this risk “enterprise risk” and said that “where the employee’s conduct is closely tied to a risk that the employer’s enterprise has placed in the community, the employer may justly be held vicariously liable for the employee’s wrong”. Earlier, in Ira S Bushey & Sons, Inc v United States, Judge Friendly had said that the doctrine of respondeat superior rests:

‘in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities’”.[45]

[80] There is no doubt here that North Goonyella’s enterprise has created the risk that produced the tortious act. As well, several of the features which led to the finding in Hollis that the couriers were employees and not independent contractors are present here. In addition to representation as their employees, the degree of control, the need to deter indifference to any harm caused by the employees, the provision of equipment and consumables, and the performance of the main purpose of the business by these employees all support the same result here as in Hollis. The plurality’s[46] insistence in Sweeney v Boylan Nominees Pty Ltd[47] on the need to examine closely the relationships between the parties supports this approach.

[81] In my view it is strongly arguable that North Goonyella should be held responsible for the negligent acts of these third party employees. The statutory obligation cast on North Goonyella to exercise control over the mine (s 41 CMSHA) at least supports that imposition. However, given my views in relation to the nature of the relationship between the parties it is unnecessary to say any more or to decide the point.

As to whether a duty was owed under the CMSHA McMeekin J referred to his Honour’s decision in Kerle and noted:

[85] I will not repeat all that I said in Kerle. Given my earlier findings I do not see it necessary here to decide an issue that is not without its difficulties. I will merely observe that an obligation confined to subsections 41(1) (a), (f) and (g) CMSHA is not so different to those obligations which have been found to afford a private right of action in the past in the context of employee safety: see Rogers v Brambles;[49]Schiliro v Peppercorn Childcare Centres Pty Ltd;[50]Bourk v Power Serve P/L & Anor.[51] And, as senior counsel for Mr Love contends, the fact that the legislature has seen fit not to amend the legislation to deny any private right of action, as it has done with the Work Health & Safety Act 2011 (Qld) (see s 267) is some indication that an inference is available that a private right of action is conferred.

Breach of Duty

McMeekin J had no hesitation in finding the interference with the air supply to the Rambor machine was a foreseeable risk, and in terms of the reasoning of Mason J in Wyong Shire Council v Shirt[52] the defendant breached its duty because:

[89] In my view North Goonyella breached its duty to provide a safe system of work in failing to have in place, and enforcing, a system of tagging out of the air supply valve when in use such that permission to interfere with the hoses had to be first obtained from the users, and instructing all those in the mine that air hoses were not to be used unless and until the permission of those using them had been obtained. No argument was led of any expense, difficulty or inconvenience in adopting such a measure. Rather the argument was that it was Wilson Mining’s duty, not North Goonyella’s duty, to ensure such tagging occurred.

His Honour noted that given the finding of non-delegable duty the allegations concerning Mr Saliba’s negligence or the responsibilities of Wilson Mining were irrelevant. Although, his Honour did find that there was no evidence to substantiate the allegations by the defendant against Mr Saliba.

His Honour found the defendant could not have the best of both worlds:

[93] North Goonyella cannot have the best of all worlds. If the premise be that no tagging out system was to be in place, it was incumbent to supply one of these alternate devices in order to obviate the risk of having multiple contractors on site interfering with each other. It is common ground that it was North Goonyella who was responsible for their supply. They should bear the consequences of not doing so.

Contributory negligence

McMeekin J recited the well-known principles and in particular the reliance on the duty of care being analogous to that of an employment relationship:

[95] The principles that apply are not contentious. Given my earlier finding of the nature of the relationship between the parties I need not concern myself with the issue of whether different considerations apply where the defendant is not the employer: see Thompson v Woolworths (Queensland) Pty Ltd;[53] Pollard v Baulderstone Hornibrook Engineering Pty Ltd.[54] A plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman.[55]

[96] As McColl JA said in Pollard: “In an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the plaintiff to unnecessary risks. In such a case, the question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker’s conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage: Bankstown Foundry Pty Ltd v Braistina.”[56]

McMeekin J found the allegations “untenable” for several reasons, but notably because the expert evidence of Mr McDougall, who was not contradicted that the chuck steel did not lock the drill into position. Hence, if the air supply failed, there was a risk that the machine would fall and injure someone within its radius and as such the plaintiff was not at fault for being within the radius of the machine.

Causation

The issue of causation related not to the incident, but whether the incident caused a material contribution to the plaintiff’s condition. The defendant alleged that the plaintiff’s history post incident was indicative the incident did not cause a significant neck injury and that there have been other events that could explain the plaintiff’s condition.

McMeekin J had no hesitation in finding causation in favour of the plaintiff. The reasoning for this was because his Honour was “very impressed” with the plaintiff, accepted the history of the plaintiff and preferred Drs Steel and Cook and rejected Dr Fitzpatrick where the evidence conflicted.

The history of the plaintiff was that there were no prior symptoms of neck pain or injury before the incident.

The defendant relied on that following the incident; the plaintiff continued to work; did not make a workers’ compensation claim, and only sought treatment some years later following a “jet ski incident” in early 2012 and again later following his truck hitting a pothole in later 2012.

His Honour noted, however, when treatment was sought the aggravation from those later events settled quickly. His Honour accepted the plaintiff modified his work to avoid roof bolting, but the work in 2014 of driving trucks in the mines caused the plaintiff to stop work.

His Honour accepted the plaintiff was keen to keep working a did not make complaints when undertaking coal board examinations or his doctors. However, he did complain to partner at the time. The statement of the plaintiff’s estranged partner Ms Story was admitted into evidence and not subject to cross-examination. Her evidence was that she observed the pain and discomfort of the plaintiff’s because of his neck injury since the incident, which progressively became worse.

His Honour found the plaintiff’s stoicism was further revealed in his attempted hike to the base camp of Mt Everest, an activity which the defendant alleged was inconsistent with the injury claimed. The hike was attempted with pain medication, rest and assistance.

His Honour drew a different conclusion:

[120] The submission was that this activity is inconsistent with Mr Love experiencing any significant pain. For many it would be. But that submission tends to ignore the independent evidence of complaints of pain pre-dating the trek, the support from witnesses who know the plaintiff well and who are not challenged, an obvious present debilitating problem, and the radiological evidence which plainly shows that the condition has developed over many years. I draw a very different conclusion. This episode in Mr Love’s life says volumes about him. He is stoic and to a degree rarely seen in personal injury litigation. To a large extent that explains his history.

McMeekin J found that the history taken by Dr Fitzpatrick was not accurate and when the correct history was put to Dr Fitzpatrick, she accepted that the incident was “significant contributing factor”.[61].

His Honour accepted that Dr Steel’s evidence that the cervical discs were compromised before 2014 and the defendant’s approach was flawed because it did not put to the experts, the hypothetical scenario that absent a compromised disc (from the incident), would the plaintiff have been in a similar condition at this stage of his life. His Honour preferred the evidence of Dr Cook as to the lack of probability of the injury being caused by the plaintiff driving trucks in 2014. His Honour noted Dr Cook was eminently placed to provide such an opinion given his experience with mine workers over 40 years.

His Honour declined to make any discount firstly on the basis of Malec v JC Hutton Pty Ltd[82] because the hypothetical scenario was not put; and secondly, on the basis, the defendant had not met the evidentiary burden of proof:

[146] North Goonyella submitted that the analysis of Jackson J in McQuitty v Midgley[86] is of relevance here. His Honour there grappled with the difficulties in reconciling Watts v Rake[87] and Purkess v Crittenden[88] on the one hand and Malec on the other. The judgments in Malec did not deal with the principles established in those earlier cases decided decades before. The earlier cases indicate that the defendant bore an evidential onus to show, and with a reasonably significant degree of precision, the impact of any pre-existing conditions. Malec requires that, where appropriate, the Court determine the chances of such conditions impacting on the damages whether they be probable or not. The approach in Queensland has for some time now been that adopted by the Court of Appeal in Hopkins v WorkCover Queensland.[89] An appropriate discount is determined, as best one can, based on the available evidence. But one thing I think is plain and that is that there remains an evidential onus on the defendant to demonstrate the need for a discount. That evidential onus has not been met here.

Damages

The plaintiff was 30 years of age at the date of the incident and 37 at trial.

Dr Cook assessed the plaintiff to have a 6% whole person impairment using the AMA guides but considered “this estimation greatly underestimates his level of impairment and disability”[90], which his Honour agreed.

The plaintiff indicated his intention to undergo surgery (fusion) with Dr Steel who opined there was an 80% chance of success (20% failure). Dr Steel opined there would understandably be a period of convalescing, stress on the remaining vertebrae and degeneration over the years.

It was accepted that it was unlikely the defendant would get back to heavy repetitive lifting or strenuous bending and twisting in close and confined spaces. It was also accepted as suggested by Dr Steel, that post surgery the plaintiff may not wish to put himself “in harm’s way” by undertaking tasks such as driving haul trucks or going underground. His Honour found this reasonable.

General damages were assessed under common law principles and $75,000.00 allowed.

His Honour accepted the claim made by the plaintiff of $254,000.00 for past loss of income given previous views about capacity and stoicism.

Future economic loss centred on the impact of the surgery.

His Honour settled on an assumed working life of 25 years until the age of 62 years, wherein the plaintiff would have irrespective of the injury been required to seek lighter work. His Honour noted the lack of evidence of residual earning capacity but settled on $800.00 per week because of the resourcefulness of the plaintiff. Hence, his Honour allowed $1,200 per week and 80% of that to account for the surgery. For the remaining five years from 62 years to 67 years of age, his Honour considered that the 20% risk the surgery would not be successful, and allowed the plaintiff the residual earning capacity of $800/week over that period and deferred, less 20%.

The calculations totalled $974,880.00. While his Honour acknowledged the opinion of Professor Luntz that 15% was too high, his Honour referred to his Honour’s previous decision of Koven v Hail Creek Coal Pty Ltd[98] about the difficulties of mining work, especially as a person ages and other contingencies and reduced the award to $750,000.00.

Otherwise, McMeekin J allowed the loss of subsidised meals but discounted by 40%, superannuation in the past at 9.5% and 11.33% for the future, together with paid assistance and special damages.

In summary:

 

HEAD AMOUNT
General Damages $75,000.00
Interest on General Damages[105] $4,080.00
Past Economic Loss $254,000.00
Past Loss of Meal Subsidy $13,650.00
Interest on Past Economic Loss and Past Loss of Subsidised Meals $11,957.00
Past Loss of Superannuation $24,130.00
Future Loss of Earnings $750,000.00
Future Loss of Superannuation Benefits $84,975.00
Future Loss of Subsidised Meals $50,000.00
Cost of Future Surgery $47,852.00
Recurring Medical Expenses $11,000.00
Future Paid Assistance $20,000.00
Special Damages $9,747.97
Interest on Special Damages $584.90
TOTAL $1,356,976.87

 

David Cormack – Brisbane Barrister & Mediator

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