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Chronic pre-existing injuries and their effect on damages

Phillips v MCG Group Pty Ltd [2012]
QSC 149 Mullins J
8 June 2012

Background

In 1990 the injured worker had been involved in a motor vehicle accident which eventuated in him undergoing a L4/L5/S1 fusion operation that inserted metalware into his spine.  As a result of the continuing back pain, he commenced taking Palfium and Panadeine Forte.

On 28 August 2008 the injured worker was employed as a scraper driver at an open cut mine site.  He was relatively inexperienced for the task and on the day in question; he misjudged the edge of a road and slid backwards down a slope, bouncing around inside the scraper until it came to a stop.  He suffered a compression fracture of L2 with between 50 to 70 percent loss of vertebral height.

The Facts

Liability had been settled just prior to the trial but issues to be determined during the trial were general damages, past economic loss and future economic loss.  Of significance was the level of pain and disability suffered by the injured worker pre-accident as compared to post-accident.

Judgment

The defendant argued that the injured worker would not have been employed by the employer had it known about the significant narcotic medication regime of the injured worker.  The court found that even though the injured worker had disclosed to the pre-employment medical assessors his past medical history, the employer had approved his employment because Dr Fenner “realised that the plaintiff had been taking it for many years and that it was under control” and that “functionally the plaintiff was able to drive on the mine site”.

The defendant also argued that the injured worker had “fudged” his curriculum vitae with respect to previous driving experience which would have been a negating factor in considering his employment.  The injured worker admitted on cross-examination that he had done this but the court found that this did not ultimately affect his ability to undertake the work required.

The court made it clear that the work accident should not be “treated as the cause of all of his pain and suffering” and yet, despite his pre-accident condition, the injured worker had managed to live an active lifestyle.

General damages were awarded at a slightly reduced sum to allow for the level of pain from which the injured worker consistently suffered prior to the work accident.

The court held that the “preponderance of medical evidence, in conjunction with the plaintiff's evidence, supports the conclusion that I reach that the plaintiff had no residual earning capacity after the accident”.

The employer ceased its operations on the mine site on 22 December 2009 and past economic loss was allowed at his current employment rate for that period.  From that point to the present day, the calculation of his past loss was reduced to reflect his average wage from a significant previous employment (taxi driver) and then reduced by 20%.  Future economic loss was calculated using the average wage of a taxi driver for 10 years (the most probable remainder working life years) reduced by 25%.

The plaintiff is appealing this matter.

Court of Appeal Judgement

The Court of Appeal dismissed an appeal by the plaintiff that the trial Judge erred in her assessment of the plaintiff's damages.

The trial was run as a quantum only trial. The judgment was for $413 082.39 clear of refund which was less than Workcover's MFO. Workcover was awarded costs from date of MFO. It was contended by the plaintiff on appeal that Her Honour's findings that the plaintiff's prospects of continuing to work on a mine site (but for the accident) must have been extremely limited or minimal, so as not to be worth quantifying.

The Court of Appeal found there was no error identified in Her Honour's reasoning. It was found she had "referred to all the relevant evidence...applied the correct legal principles in reaching her assessment...and while she accepted him (the plaintiff) as overall credit worthy...she did not fall into error in injecting a dose of reality into his evidence that no activities aggravated his pre-existing back condition..."

The decision provides a useful summary of decisions relevant to the assessment of damages in the context of pre-existing conditions.