Court of Appeal increases damages awarded to injured truck driver

19 May 2021

The Queensland Court of Appeal recently allowed an appeal by an injured worker resulting in an increase in damages awarded in respect of future economic loss.

In issue

  • The Court of Appeal was tasked with considering whether the trial judge correctly calculated the injured worker’s economic loss in light of the significant spinal injuries he sustained, and in particular, discounting awarded and his weekly loss of earnings.

The background and decision at trial

The injured worker (the appellant) was employed by a transport company from September 2013 as a truck driver. At trial, the appellant sought damages from the statutory insurer, WorkCover Queensland (WorkCover), in relation to injuries sustained to his spine as a result of a defective driver’s seat. The trial judge determined that the employer was negligent for failing to provide the appellant with safe plant and equipment. A copy of our case note in relation to the trial judge’s decision can be found here.

The trial judge awarded the appellant damages in the sum of $764,345.12 clear of the statutory refund to WorkCover. As part of these damages, the trial judge awarded $486,000 for future economic loss, calculated at an ongoing weekly loss of $1,200 per week for 29 years, less 50% for contingencies. The primary reason for the trial judge’s significant discounting referred to expert evidence provided by a neurosurgeon that, absent the work incident contributing to the injury, the appellant was highly likely to have suffered a similar disabling back condition within 5 years, noting his significant pre-existing degeneration.

The issues on appeal

The issues on appeal were refined to whether the trial judge:

  • Was correct in awarding a 50% discount to the appellant’s economic loss; and
  • Correctly assessed net weekly loss as $1,200, as opposed to the $1,500 (or in the alternative $1,300) net weekly loss which was submitted by the appellant.

The decision on appeal

The appellant submitted that the adoption of 50% discounting represented a finding by the trial judge that he was certain to have been fully incapacitated from employment by halfway through his remaining working years. Relevantly, the trial judge accepted the orthopaedic evidence that it was ‘as likely as not’ that the appellant would have suffered a debilitating spinal injury but for the employer’s negligence.

It was determined that a 50% discount was open to be made by the trial judge on the evidence, and the Court of Appeal did not alter that discounting with reference to the appellant’s future economic loss.

However, the Court of Appeal found that the application of 50% discounting to the appellant’s past economic loss was overstated. The appellant’s submissions that a discount of 10% should be applied was accepted. This submission was made on the basis that there was no significant possibility that the appellant would have suffered impairment and loss of earning capacity from a lumbar spine injury at some point in the future. In accepting this submission (referable to past loss only), the Court of Appeal noted that the period of past loss was only 5 years, and that it was less likely on the evidence that such a debilitating injury would have occurred during that time.

With respect to the appellant’s net weekly loss, the Court of Appeal determined that the correct loss was $1,300 for the following reasons:

  • Evidence at trial was provided that the appellant had a potential earning capacity of up to $2,400 gross per week (roughly $1,700 net) and that he usually worked between 50 to 60 hours per week;
  • It was accepted by the respondent at trial that a truck driver of the appellant’s experience could earn anywhere between $30 to $40 per hour. It was submitted by the respondent at trial that the appellant’s average hours worked were 38 hours per week, earning $40 per hour, resulting in a net loss of $1,200.
  • Most importantly, however, it was noted by the Court of Appeal that prior to trial, it was agreed between the parties that the appellant’s net weekly loss would be assessed at $1,300. The trial judge noted in his decision that there was sufficient evidence to support a finding of ongoing loss of $1,300 net per week.

Based on the trial judge’s observation and the parties' agreement prior to trial, the Court of Appeal accepted the appellant’s ongoing loss at $1,300 net per week.

Accordingly, the Court of Appeal awarded damages referable to economic loss as follows:

  • Future economic loss, adjusted to a multiplicand of $1,300 per week - $526,500 (from $486,000)
  • Future loss of superannuation benefits, adjusted on the same basis - $61,811.10 (from $57,056.40)
  • Past economic loss - $313,560 (from $174,200)
  • Past loss of superannuation - $29,788.20 (from $16,549)
  • Interest on past economic loss - $10,921.29 (from $6,067.39)

Implications for you

The decision highlights that the discounting awarded by Courts is discretionary having regard to a multitude of factors, one of which being expert evidence. It also shows the evidentiary onus on employers in seeking to have damages discounted referable to pre-existing conditions.

Peebles v WorkCover Queensland [2021] QCA 21

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