Miner extracts $860k from Rio Tinto for ankle injury- lawn-mowing plays small part

Koven v Hail Creek Coal Pty Ltd [2011] QSC 051

The Supreme Court last week ordered a Rio Tinto company to pay a 50 year old dragline operator $864,686.58 damages as compensation for injuries sustained at its Hail Creek Mine, 90 km south west of Mackay. The judgment included an award for the hybrid application of gratuitous services (cf: Cameron v Foster & Anor [2010] QSC 372WCRA 2003: G v K (s308E))

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Reproduced with the permission of Carter Capner Law.

McMeekin J helpfully also commented on whether interest is payable on past superannuation:

[76] No submissions were addressed to the question of whether it was proper to allow interest on the past loss of superannuation benefits when calculated in this manner save that one side claimed it and the other said it was not the practice to do so. Cases can certainly be found where interest has apparently been allowed eg Townsend v BBC Hardware Ltd [2003] QSC 015 per Ambrose J; Ollier v Magnetic Island Country Club Incorporated & Shanahan [2003] QSC 263 per Cullinane J; Friend v Rye [2000] QSC 502 per White J, but without discussion of principle. There are many more cases where no amount has been allowed.[29]

[77] The award is to compensate a plaintiff for the contribution that his or her employer was obliged to make to superannuation under the Superannuation Guarantee (Administration) Act 1992 (Cth). The adoption of a short hand method of calculating this loss came about because of the difficulties inherent in any precise calculation and the recognition of the many imponderables. It is certainly true that the plaintiff has lost not only the contribution but also the earnings on that contribution that may have been achieved. But in the ordinary case it is difficult to see why there should be an assumption of a net return of 10%[30]on such a fund. Recent publicity has suggested that most funds do not achieve anything like that return. It is notorious that in the global financial crisis many funds suffered a severe reduction in capital, let alone achieved a return on investments. As well, earnings of the fund are taxed at 15% but that might depend on imputation credits and other imponderables. Further in the ordinary course the plaintiff would not receive any benefits from the fund until retirement or transition to retirement. The taxation treatment of the receipt of those benefits, and hence the actual loss sustained, would depend on which of those two courses was adopted. While I have no evidence on the matter I suspect that detailed actuarial calculations would be needed to identify with any precision whether the detriment the plaintiff has suffered warranted an additional component of interest.

[78] The onus lies on the plaintiff to establish his loss. I have understood the practise has generally been not to allow interest on the past component of the loss of superannuation benefits, as Ms Treston submitted. I understand that to be so because of these many imponderables which impact on any precise calculation. The short hand method produces an award that gives perhaps rough justice but, in the absence of any further evidence about the likely loss or submission as to why this ordinary practise ought not to be followed, I am not prepared to award interest.



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