Krobath v Thiess Pty Ltd  QSC 309
20 December 2018
The plaintiff was a truck operator at the Burton Coal Mine, and alleged he sustained an injury to his lower back when a large rock was dropped into the tray of his truck in October 2011. He had surgery in May 2012, and again in July 2012 for a further disc protrusion. He returned to work in April 2013 on minor restrictions and continued to work until September 2014, when he was made redundant as a result of the mine closing down. He purchased a café. In August 2016, he sustained a further lower back injury when tying his shoe laces, and consequently sought damages from his employer for the original injury alleging, amongst other things, that it had permanently precluded him from returning to the coal mining industry.
Liability and quantum
The plaintiff alleged the further injury in August 2016 would not have occurred but for the initial injury in 2011. The specialist medical evidence was supportive of the allegation. The plaintiff was able to secure an extension of the three-year limitation period which would have otherwise precluded him from seeking damages by the time his claim was commenced.
The critical issue on liability was whether or not the plaintiff's factual account of his mechanism of injury was accepted, in circumstances where it had not been reported under any of the employer's formal mechanisms and where the plaintiff had given a potentially different account to a general practitioner.
The critical quantum issue surrounded the now 55-year-old plaintiff's assertion that, absent his back injury, he would have sold the café he purchased following his redundancy from the employer and re-entered the mining industry once the job position in the industry improved from approximately 2017. This case was maintained against his background as a chef who had worked the majority of his working life in that occupation.
The Trial Judge accepted the plaintiff's account of the event, and found in his favour on liability.
On quantum, the Trial Judge also accepted it was more likely than not the plaintiff would have returned to mining based employment from January 2017 and was likely to have maintained that income to retirement, potentially up to age 70. As a result, damages were assessed at approximately $720,000.
An appeal against the Trial Judge's assessment of quantum is to be heard by the Court of Appeal on 17 July 2019.
The judgment reminds us that an employer can be found liable for events after an injury has appeared to resolve, if a subsequent injury can be successfully (medically) linked to the initial accepted injury. A detailed description of the incident, written and signed off by the worker at the time of the event (if it is reported), followed by a thorough investigation, goes a long way to being able to successfully challenge an alternate factual account at a later date.
The judgment is also a good reminder that it is loss of earning capacity which is compensated by a court, not loss of earnings. As a result, it is possible for there to be a substantial loss of earning capacity, productive of financial loss, even where a worker does not appear to be suffering any demonstrable loss. How this “loss of chance” is appropriately assessed is the key issue on the appeal.