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Keeping your job does not close the door on claims for future loss of income

On 29 October 2020, Justice Applegarth from the Supreme Court at Brisbane delivered a favourable judgment for injured worker, Mr Scott Walker, who suffered multiple injuries after falling through the shed roof of a meat processing plant operated by his employer, Greenmountain Food Processing Pty Ltd.

Mr Walker was the Maintenance Manager for his employer when the incident occurred on 12 June 2015.  While he was driving past his workplace, he noticed large plumes of steam venting from a malfunctioning relief valve.  Mr Walker went to investigate which pipe was the source of the leak, with the intention of having a contractor fix the defect that weekend.  In order to gain visibility of the pipes, Mr Walker climbed the platform of a nearby tank and then onto the roof of a shed.  The section of the roof he stepped on was made of alsynite sheeting (a polycarbonate product) and gave way, causing him to fall more than 7 metres on the concrete floor of the shed.

He suffered a brain injury and fractures to his skull, spine, right wrist, thumb and both knees.  He also developed a psychological injury as a result of the incident.  His brain injury has diminished his mental acuity and his orthopaedic injuries prevent him from returning to the tools of his trade as an electrician or do manual work that requires him to crouch. Despite these problems, he was able to return to his job as a Maintenance Manager, albeit with a significant reduction in his functional capacity due to his physical, psychological, and cognitive impairments.

Justice Applegarth awarded $967,383.39 in damages, after deducting a $193,695.61 refund to WorkCover Queensland.  As is often the case, the claim for future economic loss formed the most substantial part of the award, at $765,600.00.

Mr Walker’s claim for future economic loss was based on the risk that, should he lose his current employment, he would be at a significant disadvantage on the open labour market.  While there was a disagreement by the defendant as to the extent of his future economic loss, there was no contention by the defendant that he was at a significant disadvantage on the open labour market.

In determining the amount to award for future economic loss, Justice Applegarth had regard to factors including:-

  • Mr Walker’s inability to perform various duties expected of him by his employer;
  • the possibility of changes in the industry he worked in, or the economy, which could lead to the closure of his employer’s manufacturing plant;
  • the possibility of the plant changing owners or management, who would be less patient with Mr Walker’s performance and terminate his employment;
  • his poor prospects for securing full-time employment in the event he loses his current employment;
  • his inability to fall back to work that he has prior experience in, such as an electrician; and
  • his injuries preventing him from attaining further vocational qualifications or re-skilling into more sedentary work.

Mr Walker’s case is good example of a healthy or large award for damages for future economic loss being made even if the injured person continues to work for the same employer or place of employment where the injury or accident occurred.

Many of our clients are often concerned about whether they must leave their employment if they have been badly injured if they intend to pursue a common law  claim for damages.  As all injured people who are pursuing a damages claim have a duty to mitigate their loss, if an employer is able to retain an injured worker and allow them to keep their existing job or provide them with alternative duties this is usually the best possible outcome for the employer and the injured person and for many reasons.

Over the years, we have observed some employers acting badly or even very badly towards our injured clients who have been injured at work simply because they have lodged an application for compensation with WorkCover and even worse if a damages claim is pursued.  However, we have also observed many employers who genuinely care for their staff and do their very best to retrain or redeploy their injured staff if possible.

In summary, it is important for people and especially injured workers to know that if you decide to pursue a common law claim for damages against your employer, this does not mean that you need to leave your employment.  Similarly and equally important is for people to know and understand that if you are able to preserve your employment and stay with your employer after you have been injured, this does not mean that you cannot make a claim for future economic loss including recovering substantial damages for future economic loss which is what Mr Walker was able to achieve in this case.

The writers acknowledge that Mr Walker was represented by Hall Payne Lawyers.

A copy of the judgment can be found at:
Ray is an Associate who works in the Brisbane office of vbr Lawyers with Greg Black. Ray successfully completed a Bachelor of Business and Bachelor of Laws and also his Practical Legal Training at QUT.
Greg is widely regarded as one of Australia’s leading compensation law experts. Greg has a very healthy practice and enjoys providing his clients with superior personal service in every case. Greg is absolutely committed to achieving the best settlement outcomes for his clients while keeping the legal costs down.

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