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Prior injuries and future economic loss

This case study demonstrates

  • The court may consider prior injuries for future economic loss.
  • If there was a reasonably practical means the employer could have implemented to avoid the risk of injury.

Background

The plaintiff is a 46 year old worker who was employed as a roofing plumber. The plaintiff and a co-worker were using a scissor lift to move 20 sheets of corrugated metal roofing approximately 30 to 40 metres across a building site and up to the roof of a building. Each sheet weighed approximately 15 kilograms and was six metres long and 840 millimetres wide. The plaintiff, co-worker and foreman placed the sheets onto the handrail of the scissor lift. The sheets were not tied or attached to the handrail when the sheets moved and were about to fall on to the plaintiff. The plaintiff placed his body under the load to push it up with his shoulder to prevent it from falling. As a result, he suffered a serious back injury. The plaintiff had a pre-existing knee injury and heart condition.

Judgement

The matter was heard in the Supreme Court of Queensland by McMurdo J on 31 January to 4 February 2011. The judgment was delivered on 23 March 2011.

The plaintiff was directed by the employer's foreman to move the sheets using the scissor lift and he assisted them to load the sheets. Because the sheets were not tied or otherwise attached to the lift, there was a real risk that they may slide or fall from the left and this risk was reasonably foreseeable. There was a reasonably practical means of avoiding such a risk by the use of a crane. The employer also failed to take reasonable care for the plaintiff's safety whilst at work. The employer failed to establish contributory negligence against the plaintiff.

The plaintiff had an extensive compensation history in Victoria in relation to a prior knee injury and his longstanding heart condition. The plaintiff agreed he had knee problems but argued that it did not affect his earning capacity as he had been employed for the best part of a year prior to suffering his back injury. The court also accepted the evidence that the plaintiff would have been able to continue working as a roofing plumber for a period of time notwithstanding his heart disease. The issue before the court was the effect of his heart condition on his capacity to earn an income.

The plaintiff underwent surgery in January 2009 and further surgery in February 2009.

The court considered the plaintiff's long history of compensation prior to the injury but determined it was impossible to accept he had any significant back symptoms as he did not complain about a sore back. The court accepted his back symptoms occurred immediately after the event.

The court recognised the plaintiff's heart condition may have precluded him from working until retirement, but did not discount his past economic loss but contained his future economic loss to three years of work. The court considered that his work ethic may not have remained as it was and discounted his damages accordingly.

The employer was found negligent and the plaintiff was awarded damages of $326,743.95.