Previous employment influence

This case study demonstrates

• Future economic loss can be awarded based on income from previous short-term employment.
• Damages can be awarded despite having a pre-existing injury.

Background

The claimant was a 43-year-old bar attendant working as a bar attendant at a Hotel in Maryborough, when she suffered a disc herniation when she attempted to move a 63 kilogram keg of beer. The incident occurred when she was working for the employer on 18 October 2005.

The claimant underwent surgery for the subject incident. She claimed the surgery was of no benefit to her and claimed she continued to suffer from low back pain that varied in intensity. The claimant was assessed by orthopaedic surgeons who agreed on the seriousness of the injury. Analgesics and anti inflammatory drugs helped her pain.

The plaintiff claimed she had difficulties with sitting or standing for any length of time, and suffered from restrictions with bending or lifting. The medical specialists' opinions were that the claimant would have experienced low back symptoms at some point in her life despite the incident because of pre-existing degeneration, which was evident on the radiological images. The plaintiff however did not show any discomfort or pain during the course of the court proceedings despite her claims that she suffered pain from standing for any length of time.

The Judge noted the plaintiff's employment history holding a variety of jobs including a bar worker, kitchen hand, fruit picker; jobs that required some physical labour, and standing and bending. According to her tax returns, from July 2002 until October 2005, the plaintiff had had 11 separate employers all held for short periods of time.

Since 2002, the longest period of employment was for around 10 months at the Lamington Hotel. Evidence indicated the longest period in one position held by the plaintiff during her whole life was for one year. The plaintiff's patterns of short periods of employment continued after the incident. This was considered by the Judge when deciding on damages.

Judgement

The claimant had a history of sporadic short term employment both before and after the injury. There was evidence she left three post injury employers (one employment period was a two day trial) for reasons unrelated to her back pain. However, the plaintiff claimed she lost two positions of work because of her back difficulties.

When awarding damages, the Judge referred to other cases relating to back pain. Back injuries with less serious symptoms have resulted in awards of up to $55 000.00. The Judge awarded the plaintiff general damages of $55 000.00 in line with these findings.

The plaintiff demonstrated a substantial ability to obtain and maintain employment despite her condition. The plaintiff found work post incident earning $632 per week at the Ramada Resort, which she did for 11 weeks. Therefore, the Judge ruled there were no reasons the plaintiff could not have achieved that level of income if uninjured. Based on this, the plaintiff was awarded $145 000.00 for future economic loss even though the calculated weekly rate was higher than she earned before the accident.

In total, the Judge awarded the plaintiff $271 908.52.00 including $39 800 for past economic loss, and damages for past and future medical expenses.

Other Details

Court: Supreme Court Rockhampton
Judge: Justice McMeekin
Decision date: 22 October 2010