Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190

CASE REVIEW

  Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190

Paskins v Hail Creek Coal Pty Ltd [2017] QSC 190 is a recent decision of Justice McMeekin involving an injury to a relatively young mine worker.

Varying approaches can be taken to the assessment of future economic loss (FEL) for Plaintiffs working in the mining industry.

McMeekin J in this case applied a much greater than usual discount in assessing FEL, making this an important decision when assessing claims in a mining context.

This case review examines what factors may impel the Court to apply a greater than usual discount when assessing future economic loss (FEL).

Issues

The Plaintiff was 32 years old at the date of the incident and 35 years old at the date of the trial. 

As a result of the incident, he sustained a lower back injury (L4/5 disc prolapse) requiring surgery with a secondary psychological injury. 

In assessing FEL there were two key issues:

(1)           Whether the Plaintiff would have maintained employment in the mining industry to retirement

Senior counsel for the Plaintiff submitted that damages for FEL should be assessed at $1,223,037, which assumed an uninterrupted career to age 67 in the mining industry, two years of unemployment while he retrained, and a residual earnings capacity of $250 net per week thereafter (and applying a 10% discount for contingencies). Defence Counsel submitted, for various reasons, that the award should be $566,023.

McMeekin J only awarded $350,000 for FEL calculated on the basis there was a 30% chance that the Plaintiff would have maintained employment in the mining industry to retirement for 4 reasons:

(a)        The Plaintiff had not demonstrated continuity in his past employment having held eight different jobs in the six  years he had been in the mining industry, and had also faced a number of disciplinary issues; 

(b)        Secondly, even for exemplary employees, consistency of employment in the mining industry is by no means certain given the vagaries of overseas markets. His Honour referred to the high number of redundancies in the mining industry in recent times;

(c)        The Plaintiff had a pre-existing symptomatic degenerative spinal condition  which had previously required treatment; and

(d)        To quote His Honour …. ‘what appeals to a younger man does not necessary appeal to someone more advanced in life.’[1]

(2)           The Plaintiff’s residual earning capacity

The Plaintiff’s Counsel argued that the defendants had failed to discharge their evidential onus of proving the extent of the Plaintiff’s residual earnings capacity. Whilst the expert evidence was that the Plaintiff was capable of employment in a different industry, he had taken no steps to obtain employment. In rejecting the Plaintiff’s argument, the Court referred to the decision of the Queensland Court of Appeal in Adsett v Noosa Nursing Home Pty Ltd in which Pincus JA stated, ‘But this argument fails, in my view, for a simpler reason; counsel for the appellant conceded that to throw any onus on the respondent the appellant had to prove that she had really tried to obtain employment.’[2]

Accordingly, because the Plaintiff had made no attempts to secure suitable alternative employment, the onus did not shift to the defendants to establish the extent of his residual earnings capacity.

Assessment

The court assessed FEL as follows: 

1. Earnings in the mining industry to age 60 based on what the Plaintiff was earning at the time of the injury ($1,520,700);
    
2. Discounted 70% for the likelihood the Plaintiff would not have continued to work in mining ($456,210);
    
3. Discounted a further 65% to allow for the Plaintiff’s ‘significant’ residual earnings capacity ($159,673);
    
4. Add one year’s wages for employment for re-training and seeking employment ($95,000); and
    
5. Add a further amount for disadvantage on the open labour market even on the assumption that he would not have continued in the mining industry (approximately $100,000). 

Conclusion

McMeekin J’s award for FEL is notable for two reasons:

(1)       the discount applied to the assessment was significant;

(2)       it confirmed that Defendant’s do not bear the OOP concerning a Plaintiff’s residual earning capacity when a Plaintiff has made no attempt to secure alternative employment.

When assessing FEL, the courts attempt to predict, as best as possible, what is likely to happen in the future, and what may have happened had it not been for the injury

Large discounts on FEL are not typical and this case probably represents the high water mark. It demonstrates though that, in the mining context in particular, if the Plaintiff is young, has a poor employment record, and has pre-existing medical problems, a larger discount can be justified.

David Bray