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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