WCRA: pre-existing fusion and subsequent L2 compression – lost capacity

Phillips v MCG Group Pty Ltd [2012] QSC 149


On 28/08/2008 the plaintiff sustained a lower back compression fracture of L2 with between 50 per cent and 70 per cent loss of vertebral height. The matter in contention was the impact of his pre-existing injury sustained in 1990 which resulted in a L4/L5/S1 fusion in 1992. Consequently the plaintiff was restricted in his activities, work and took a considerable amount of opiate pain medication. Nevertheless the plaintiff did return to work but, as was noted it resulted in employment of short duration, gaps in employment and reduced earnings.


The plaintiff was seen by a number of experts and notably Professor McPhee (23%) and Dr Campbell (16.1%).



Mullins J generally accepted the plaintiff’s evidence, despite there being some variations and noted the plaintiff was being required to respond to matters covering 21 years and found in relation to his work:


[46] It is not surprising that there were discrepancies in the plaintiff’s account, in view of the fact that he was asked to recall quite specific details of events, treatment and medications over a period of 21 years.


[47] Even recognising the plaintiff’s gloss on detail, I have largely accepted the plaintiff’s evidence about his pain levels prior to the accident and what activities he did undertake with the benefit of medication and the effect of the accident on his pain levels and curtailment of his physical activities. I do not find that the inconsistencies between the plaintiff’s evidence and documentary evidence about matters prior to the accident have the significance that was placed on them by the defendant.


[48] In the ten years prior to the accident, the plaintiff was motivated by his desire to prove that he was still capable of working and to undertake physical work and activities and relied on his substantial narcotic medications to work and lead a relatively active life. In that period, however, the plaintiff’s employment was not continuous or consistent and was at relatively modest levels, as the maximum gross income that he earned in any of those years was $38,016 which was for the 2003 financial year. The positions that he had as a night-shift taxi driver and for the Mac Services Group during the three years immediately prior to the accident involved significant physical stamina on his part which he managed.


[49] On the basis of the high levels of narcotic medication that the plaintiff required to maintain his physical activities prior to the accident, and his work history prior to the accident, and noting the tolerance that the plaintiff must have developed to his daily medications, I consider the plaintiff was overly ambitious about what physical activities he could have maintained on a medium to long term basis, but for the accident.



Regard was had to the decision of Cameron v Foster [2010] QSC 372 as to a range of $60,000.00 – $80,000.00 for such injuries, but it was reduced for the plaintiff’s pre-existing injury and its symptomology to $50,000.00.



Relevantly in considering past loss of income and its likely impact on future lost earning capacity Her Honour discussed the relevant principles, namely:


[57] The assessment of damages for a loss of earning capacity between the date of the accident and this judgment raises the application of Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. The plaintiff contends that the principle to be applied was that in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168, as applied in Hopkins v WorkCover Queensland [2004] QCA 155. The defendant submits Malec should be applied in a similar manner to how it was applied by McMeekin J in Bell v Mastermyne Pty Ltd [2008] QSC 331.


[58] Purkess was referred to during the argument in Malec, even though it is not referred to in the judgments in Malec. That is explained by the fact that Malec was concerned with an assessment of damages on the basis of the evaluation of the likelihood that a hypothetical event would have occurred: Malec at 639, 643. Purkess was concerned with the evidential burden on a defendant in a personal injuries claim in circumstances, such as where there is a contention that a pre-existing condition of the plaintiff would have had a particular outcome, irrespective of the supervening injury. See also Hopkins at [5] and Smith v Topp [2003] QCA 397 at [38].


[59] Bell concerned a much younger plaintiff who was 26 years old when injured 10 years before the trial. He had a poor work history before he relocated to Queensland in order to obtain work in the mines. He had worked casually for a couple of months before the accident which resulted in an internal derangement of the L5/S1 intervertebral disc, but in the context of pre-existing degenerative change in that disc. The plaintiff did not work after the accident, although he did have a residual earning capacity, but it was found that he did not try to obtain employment in any meaningful way. It was found at [67], applying Malec, that his prospects of obtaining and maintaining employment in the mining industry were not better than 10 per cent. On the basis that the plaintiff would have earned something in the order of $450,000 if he had continued to be employed in the mining industry until trial, McMeekin J took 10 per cent of that figure and added $45,000 to 90 per cent of what the plaintiff would have earned in another job at around $550 net per week. Because the plaintiff had Crohn’s disease, there was the possibility of his pre-existing spinal condition interfering with his work capacity, and it was also necessary to take into account that his residual earning capacity that was not exercised, McMeekin J discounted the calculated amount by 35 per cent to arrive at the award of past economic loss.



Her Honour was guided to some degree by McMeekin J’s decision in Bell and considered a number of the different scenarios, but settled on allowing the plaintiff his lost wages at the mine until it would have closed down and then his past average earnings prior to the mine, together with an allowance for increases in wages and discounted by 20%:


[63] Just as McMeekin J recognised in Bell at [95] the artificiality of the exercise that was undertaken in that case in calculating economic loss for a plaintiff based on full employment in the mining industry where the plaintiff had been injured after a very short time working at a mine site and that calculation bore no relationship to the plaintiff’s prior earnings, I have the same difficulty in this case.


[64] Although the plaintiff was tenacious in obtaining the job on a mine site and technically was capable of performing the job of a scraper driver for the two weeks before the accident, his aspirations for continuing that work have to be tempered by the reality of his pre-existing condition that meant he suffered from chronic lower back pain, his medication regime and his prior work history to which I have already referred in detail.


[65] One way of calculating damages for past economic loss would be to do the figures in the manner proposed by the plaintiff using the agreed monthly net wages on the assumption that the plaintiff had continued on the mine site as a scraper driver and to discount that figure significantly (in the vicinity of 40 per cent) to take into account, in accordance with Malec, the likelihood that the plaintiff would not have been able to continue in that job. Another way is to calculate his past economic loss on the basis of a lower weekly wage than he could have earned on the mine site that better reflects his working history prior to the accident and the discount to be applied to that calculation would accordingly be less than 40 per cent.


[66] Although it is arbitrary in some respects, it accords better with the conclusion that I have reached about the plaintiff’s real prospects of continuing to work on a mine site in the medium to long term to do the calculations on the basis of what he could have earned on the mine site until the defendant ceased its operations and after that by calculating lost earnings on the basis of the average of what he earned from the Mac Services Group and as a taxi driver, taking into account the percentage increases in average Queensland earnings from the Australian Bureau of Statistics Figures that are shown in exhibit 30.



Her Honour adopted a similar approach for the future and allowed the loss ($695/week) until the age of 65 years as opposed to 67 and discounted it by 25%


General   damages


Interest   on $17,000 @ 2% for 3.8 years


Past   economic loss


Interest   on $73,255 @ 5% x 3.8 years


Past   loss of superannuation


Future   economic loss


Future   loss of superannuation


Past   and future lawnmowing including interest


Past   and future pool/hydrotherapy expenses including interest


Past   and future aids and equipment


Hospital,   medical and other expenses paid by WorkCover


Health   Insurance Commission


Fox v   Wood


Past   pharmaceuticals plus interest and future pharmaceuticals




Less   WorkCover refund







Brisbane Barrister – David Cormack

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