Mining claims – injured worker fails to strike pay dirt
Jun 2013 |In recent years with the advent of the "mining boom" in Queensland and Western Australia, insurers defending personal injury claims have been confronted with the argument that injured workers in the resource sector should receive significant damages for economic loss.
The Queensland Court of Appeal recently considered the assessment of damages for a worker (the appellant) at a mine site who had no residual earning capacity after he was injured, and who had a significant prior medical history and opioid dependency.
Specifically, the Court of Appeal was asked to determine whether there was an error in the calculation of the appellant's general damages, loss of earning capacity and, critically, whether the primary judge had erred in measuring the appellant's chance of continuing to work in the mining industry but for the incident.
The facts
The appellant injured his back while driving a scraper at a mine site on 28 August 2008. He sued his employer, the respondent. Liability was not in issue, only quantum. The appellant was 51 years old at the date of the incident and 55 at trial.
On appeal, the injured worker argued that the assessment of damages by the primary judge was manifestly inadequate.1
The appellant had suffered a significant lumbar spine injury in 1990 (18 years before the subject incident) for which he required surgery. He underwent extensive rehabilitation and was prescribed opioid analgesics to treat the pain.
Seven years after this injury, the appellant returned to work on a casual basis packing supermarket shelves. He then returned to sales and progressed to an acting sales manager position until 2003 when he then obtained a position as a logistics manager. In 2005 the claimant drove a mobile crane and then spent the next two years working as a taxi driver.
Whilst working in these positions, the appellant took an excessive amount of pain medication to enable him to cope with his constant lower back pain.
When he started working for the respondent, the appellant was taking six types of pain medication. In the respondent's pre-employment screening, the appellant misstated his work history but he did disclose his significant narcotic medication intake. He passed the mine doctor's examination and was deemed fit to function as a machine operator at the mine.
The appellant had only been employed at the mine site for two weeks before he drove a scraper past another vehicle when its back end slid off a slope. The appellant lost control and sustained injury bouncing around inside the cabin of the scraper. The injury sustained in this incident was in a different location to the 1990 injury.
The appellant was unable to return to any kind of paid employment.
At first instance, the appellant relied heavily upon the evidence of Dr Scott Campbell, neurosurgeon, who said that if the accident had not occurred and he were otherwise able to manage his back problems and not be exposed to heavy lifting, bending, working in awkward positions or trauma, the appellant would have likely worked into his early sixties.
However, the primary judge concluded that having regard to the "reality" of the appellant's pre-existing back injury, his extensive medication regime and his work history since the earlier injury, it was clear the appellant required high levels of narcotic medication to maintain his physical activities prior to the incident and that the appellant was "overly ambitious" about the physical activities he could have performed on a medium to long term basis but for the incident. Her Honour calculated past economic loss based on the average wages that theappellant would have likely worked as a taxi driver, discounted by 20%.
As to future economic loss, this was also calculated using the average wage of a taxi driver for the next 10 years discounted by 25%.
White JA of the Court of Appeal (with whom Fraser JA and Daubney J agreed) found no error in the primary judge's assessment of general damages
As to whether the appellant would have continued as a scraper driver or advanced to higher paying positions within the mining industry to the age of 67, the Court of Appeal agreed with the approach taken by the primary judge who had regard to the earlier decision of McMeekin J in Bell v Mastermyne Pty Ltd2 (Bell) which commented on the artificiality of calculating the economic loss of a worker based on full time employment in the mining industry when the worker had only been working at the mine site for a short period of time. In Bell, the injured worker's prospects of returning to the mining industry were considered no greater than 10%. This amount was further discounted by 35% having regard to the worker's pre-existing medical conditions.
The Court of Appeal also had regard to other decisions by McMeekin J in Koven v Hail Creek Coal Pty Ltd3 (Koven) and Craddock v Anglo Coal (Moranbah North Management) Pty Ltd4 in which His Honour commented on the appropriate calculation of damages for those who remain employed in the mining industry. Highlighted throughout these decisions were the difficult conditions, the age statistics on those who work in the industry and the risks associated with mining work. In Koven the possibility of continuing employment in the mining industry for a person with an injured ankle to retirement age was discounted by 50%.
Ultimately, it was concluded that the primary judge had been correct in her initial assessment of loss of earning capacity, and the use of the appellant's previous wages as a taxi driver in those calculations, particularly where there was greater uncertainty surrounding whether the appellant would have continued working at the mine in the long term.
Discussion
This case illustrates that the courts are cognisant of the uncertainty surrounding calculations of past and future economic loss for plaintiff workers employed in the mining industry. When calculating economic loss, the courts will have regard to the length of time the plaintiff worked at the mine site and the plaintiff's medical and work history. In addition to this, judges are likely to take a common sense approach when considering the likelihood of continuing employment in arduous labouring or labour intensive roles until retirement age.
There is now a growing body of cases which suggest that few workers in these arduous positions will manage to work beyond the age of 60 and that economic loss awards should reflect that reality.
(1) The primary judge assessed the appellant's damages at first instance at $413,082.39, allowing $50,000 for general damages, $123,000 for past economic loss and $215,276 for future economic loss.
(2) [2008] QSC 331.
(3) [2011] QSC 51.
(4) [2010] QSC 133.