McClintock v Trojan Workforce No 4 Pty Ltd & Anor [2011] QSC 216
Issues
Assessment of quantum:
- · Especially past and future loss of income, in circumstances where the plaintiff had some pre-existing degeneration of his neck and back, a degree of emotional vulnerability, a congenital foot deformity and history of alcohol abuse (which had given rise to periods of domestic abuse and a custodial sentence);
- · The age of retirement 65 or 67;
- · Offsetting interest with the “surplus” WorkCover benefits; and
- · Contingency discount rate – 10/15/25/30/50%?
| Age | Injury and General Damages | CLA ISV | Uplift | Occupation | Past loss of income | Future loss of income |
| 46(M) | $90,000[1]
(a) a crush fracture to his second lumbar vertebra; (b) a crush fracture to his twelfth thoracic vertebra; (c) a partial tear of his right rotator cuff; (d) secondary psychiatric condition
Nil interest because of lump sum payment by WorkCover[2] |
n/a | – | Labourer and machine operator | $139,230[3]
$650 per week for the period of 252 weeks and discounted by 15% No interest awarded following Mahoney v GEC Australia[4] – “surplus” WorkCover benefits |
$305,235
$675 to age 65 on the five per cent discount tables (multiplier of 646), less discount of 30%[5] because of congenital deformity, pre existing back and neck, emotional vulnerability and alcohol abuse
Declined to follow Hoppe v Burns[6] and allow award until age 67[7] |
[1] Cf: McMillan v Kissick,[1] Corkery v Kingfisher Bay Resort Village Pty Ltd[2] and Cameron v Foster.[3]
[2] At para [23]
[3] At para [37] referred to Waller v McGrath [2009] QSC 158 at [47]– [53] (in which Martin J used 10 per cent as the starting figure, which was increased to 12 per cent for the plaintiff, who was a 12-year old with learning difficulties and attention deficit disorder before the accident; upheld on appeal: Waller v Suncorp Metway Insurance Ltd [2010] QCA 17 at [60]); Cameron v Foster [2010] QSC 372 at [46] (also 10 per cent); cf Craddock v Anglo Coal (Moranbah North Management) Pty Ltd [2010] QSC 133 at [72]– [76] (in which McMeekin J described 15 per cent as “conventional” and stated that any change to that was a matter for the Court of Appeal).
[4] At para [39] [1994] 1 Qd R 397.
[5] At para [42] explained the rationale for not accepting 25% (double 12%) or 50% the defendant was contending for.
[7] At para [40].
Brisbane Barrister – David Cormack
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