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Damages for care and assistance

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Koven v Hail Creek Coal Pty Ltd [2011] QSC 051
McMeekin J
25 March 2011

Background

The claimant, Mr Koven sustained a left ankle injury at work on 13 November 2007. The claimant was 46 years old at the date of accident and aged 50 at trial. At the date of injury, the claimant was employed as a trainee drag line operator at a mine

The facts

Liability was admitted by WorkCover prior to the trial.

At the trial date, the claimant had ceased working at the mine due to his injuries and instead was working 23 hours per week (40 weeks per year) as a school bus driver earning $518.97 net/week.  The claimant disagreed with the doctors' assertion that he could do work of that nature full time.

The examining doctors concurred as to a 5% whole person impairment, with a suggested 12% impairment of the left lower limb. The doctors considered that the claimant was excluded from heavy work, or work on uneven surfaces. However, the claimant was able to do full time sedentary and/or light manual work and work restricted to a level surface. It was agreed Mr Koven would no longer be able to perform heavy manual work and would require assistance with domestic tasks including lawn mowing and home maintenance which he performed himself before the injury.

The claimant submitted that he should be compensated for general damages, future economic loss and future paid care, including gratuitous services.

Judgment

Justice McMeekin considered the claimant a reliable witness and a stoic individual and that the claimant would be in a better position to know his physical work restrictions than the doctors. It was determined that the claimant had a reduced capacity for work, but that he could work in a sedentary capacity.
In relation to future earning capacity, whilst it is not common for workers in the mining industry to remain beyond the age of 60, Justice Meekin considered it 50 percent likely that the claimant would have worked to 65 years of age.

Since the accident, Mr Koven's lawns had been mowed by his family gratuitously, but on occasion he had paid to have them done, and as such, Justice McMeekin stated that if services are provided partially gratuitously and partially paid for at commercial rates, the injured worker will not be precluded from an award of damages by the provisions of the Act. Other services including domestic cleaning and cleaning of gutters and walls were performed gratuitously and were unrecoverable.

The claimant was awarded $855,308.61 comprised, in part, of $15,000 future paid assistance; $60,000 for general damages; $170,000 for past economic loss; and $495,000 for future economic loss.