On 27 May 2020, Justice Jackson found in favour of Daniel Peebles who suffered a significant back injury during the course of his employment as a truck driver with Kutz Transport Pty Ltd.
Mr Peebles was 38 years of age by the time of the trial. It was found that Mr Peebles disabling back injury was caused by a defective driver’s seat in his assigned work vehicle which was a Western Star Prime Mover.
WorkCover admitted liability or legal fault with respect to Mr Peebles’ employer breaching the duty of care it owed to him for failing to provide safe plant and equipment.
Due to his significant work related back injury, Mr Peebles required major back surgery.
WorkCover unsuccessfully argued that driving with a defective seat caused Mr Peebles to only suffer a transient and short-term onset of episodic back pain due to some evidence that Mr Peebles had some pre-existing back degeneration.
WorkCover called evidence from Dr Gavin Ballenden, Occupational Physician to support their argument regarding extent of Mr Peebles pre-existing degenerative back disease and the importance of it.
Justice Jackson rejected the evidence of Dr Ballenden and found that Dr Ballenden formed a number of unclear factual assumption and Dr Ballenden’s written opinion failed to comply with the expert evidence rules set out in the Uniform Civil Procedure Rules 1999. Justice Jackson was also quite critical of some aspects of Dr Ballenden’s medical opinion and described one paragraph as “value laden opinion that does not amount to appropriate independent expert opinion offered in a report for evidence in court”.
The writer notes that this is not the first time that Dr Ballenden’s evidence as an expert witness has been rejected and/or criticised by a court.
As is often but not always the case, the quantum [or full value] of Mr Peebles case was dominated by the claim for economic loss.
Mr Peebles argued that he ought be compensated on the basis that he but for the accident he would have worked as a truck driver until age 67 and on a full-time basis earning at least $1,300.00 to $1,700.00 net per week which arrived at a figure of over 1 million dollars for future economic loss.
WorkCover argued that Mr Peebles should not be awarded more than $340,000.00 for future economic loss because a heavy discount and as much as 65% should be applied due to a number of factors including and particularly due to his pre-existing back degeneration.
Justice Jackson found that a substantial discount was warranted on the basis that Mr Peebles would have suffered a similar disabling back condition at some stage prior to his intended retirement age at age 67 and a discount of 50% was applied and Mr Peebles was awarded $486,000.00 for future economic loss.
The discount applied by Justice Jackson of 50% on the award for future economic loss seems quite high in the circumstances and it will be interesting to see if an appeal is pursued by Mr Peebles regarding this important head of the damage.
Despite the severity of Mr Peebles significant lower back injury, he was awarded only $56,410 for pain and suffering. Due to the severity of his injury, Mr Peebles also suffered a secondary psychological/psychiatric injury although no additional allowance or uplift was awarded by Justice Jackson.
If Justice Jackson was allowed to assess damages for pain and suffering according to general law principles the allowance for pain and suffering is likely or highly likely to have been higher or much higher, however, the court is required to assess general damages in accordance with the Workers’ Compensation and Rehabilitation Act 2003 which imposed restrictions on what the court can allow for pain and suffering.
The total amount awarded as damages or compensation by Justice Jackson was $1,009,760.52
The writer notes that Mr Peebles was successfully represented by Travis Schultz Law.
A copy of the judgment can be found at:
