WCRA: imprecision not a bar to calculating future loss of earning capacity

Talty v Cotton On Group Services Pty Ltd [2016] QDC 99

Butler J

The plaintiff was employed by the defendant, Cotton On, as a team supervisor at the defendant’s warehouse. In 2012, the plaintiff was injured when a pallet weighing approximately 100kg fell from a height of 6 metres and struck her. The injuries were particularised as:

[28] The amended statement of claim particularises the plaintiff’s injuries as:

“(a) traumatic brain injury;

(b) right periorbital hematoma;

(c) left sided parietal scalp laceration;

(d) avulsion fracture to the left ankle;

(e) ligamentous laxity to the left knee;

(f) musculoligamentous injury to the left shoulder;

(g) psychological injury.”

 

The defendant admitted liability and negligence but disputed the nature, extent and consequences of the injuries.

Relevantly, the plaintiff had no recollection of the accident and only fleeting memories of her period of hospitalisation. She was discharged from hospital eight days after the incident into her mother’s care, during which time she required the aid of crutches.

On the day of the accident, the plaintiff recorded a Glasgow coma score of 7 upon arrival which improved to 14 then 15. An occupational therapy report in 2012 described her as suffering from amnesia for a period of 10 days after the incident.

In 2014, after returning to work post-accident, the plaintiff had resigned from Cotton On and found employment with a landscaping business but again resigned due to discomfort in performing her roles. The plaintiff at trial was employed as a cleaner and part-time shelf filler and undertaking education to pursue work as a nurse.

The plaintiff’s and defendant’s submissions were summed up by his Honour at [47]-[48] and [49]-[52] respectively. In finding an ISV of 25:

[59] In addition to the dominate brain injury the plaintiff also suffered an ankle injury which I find limits her employment opportunities to some extent. I accept that the ankle injury constitutes a 3% whole person impairment. Taking that further entry into account I consider that the plaintiff falls at the top of the relevant range with an ISV of 25.

As to the assessment of past and future economic loss, his Honour found:

[70] A period of four years has passed since the accident. It is submitted that as the plaintiff, upon her return from overseas, rejected the option of returning without loss of income to the physical landscaping work she was doing previously, she therefore has suffered no loss of income opportunity. This submission fails to recognise that a range of possible options which would otherwise have been available to the plaintiff in the four year period were closed to her due to her injury. Opportunities of advancement in her existing work place, obtaining promotional employment elsewhere or completing employment related education were not as an available to her due to the injury. An allowance should be made for the consequential economic loss suffered during that period.

[80] The plaintiff’s pervious income with Cotton On and with Treescapes paid about $750 net per week. The level of income of a nursing support worker or Aged Care assistant is of a similar level to that. Should the plaintiff be able to obtain a Certificate IV qualification and commence employment as an enrolled nurse, her income would increase by about 10%. On the assumption that due to the injury that option is no longer open to her, the loss of income over 35 years would amount to $65,670.00. It is my assessment that the chance of the plaintiff completing a Certificate IV and achieving employment as an enrolled nurse is 20%. The loss of income when discounted 20% amounts to $52,536.00.

[81] Should the plaintiff obtain a nursing degree and progress to a position of registered nurse, she could expect a further 50% increase in average income. Calculated over 30 years, allowing for a period to complete degree studies, the additional income would be $328,800.00. I assess that even had the injury not occurred there was a 50% chance the plaintiff would not have reached this level of employment as a nurse. Discounting the amount by that percentage results in an amount of $164,400.00.

[82] It must be conceded that in reaching the total of $216,936.00 by this route lacks precision. That reflects the difficulty in predicting what possible life course the plaintiff may have taken had the injury not occurred. Another possibility would have been for the plaintiff to progress to a position with more responsibility in warehousing or a similar field of endeavour. I am satisfied that due to the injury the plaintiff has suffered a real loss of earning capacity for the future.

 [83] Weighing all the factors discussed above I will make a global assessment of future lost earning capacity at $220,000.00.

 [84] Allowance for loss of superannuation contributions on that future economic loss calculated at 11.5% will be $25,300.00.

In summary, assessed damages were as follows:

 

Pain, suffering and loss of amenities of life $42,350.00
Past economic loss $17,735.00
Interest on past economic loss (net of work cover) $282.00
Past loss of superannuation contributions $465.00
Future loss of earning capacity $220,000.00
Future loss of superannuation contributions $25,300.00
Special damages $20,529.00
Interest on special damages $92.00
Total $326,749.00
Less WorkCover refund $91,081.12
NET TOTAL $235,668.00

 

David Cormack – Brisbane Barrister & Mediator

Related Posts

Recent Comments

    Categories