Injured worker’s award for future economic loss reduced by 50% for contingencies Injured worker’s award for future economic loss reduced by 50% for contingencies

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Injured worker’s award for future economic loss reduced by 50% for contingencies

22 July 2020 | Employment and Safety

The Queensland District Court has reduced a worker’s award for future economic loss by 50% to account for pre-existing hip and spine conditions and other significant co-morbidities.

In Issue

  • Quantum of damages, specifically, the extent to which the plaintiff’s damages should be reduced in light of her pre-existing conditions

The background

The 58 year old plaintiff, Ulrike Pearce, injured her left hip when she stumbled on a rise on a corridor floor whilst performing her duties as an endorsed enrolled nursed at an Aged Care Facility operated by the defendant.

Liability was admitted leaving only quantum in issue at trial.

A major point of contention between the parties was the appropriate discount for contingencies applied to the award for future economic loss.

The parties agreed that the plaintiff’s earning capacity was $950 net per week to the age of 67. However, whilst the plaintiff contended a discount of 15% for vicissitudes was appropriate, the defendant submitted that a discount of 75% would be appropriate to reflect the plaintiff’s:

  1. Major pre-existing hip conditions;
  2. Significant pre-existing lumbar spine condition;
  3. Other comorbidities of depression and the death of her husband, Chronic Obstructive Pulmonary Disease, carpal tunnel syndrome and a significant cancer scare; and
  4. Agreed medical evidence of Mrs Pearce having the capacity to perform a residual sedentary role.

In his judgment, Jarro DCJ acknowledged that the defendant bore the evidentiary onus to prove the extent of the plaintiff’s pre-existing conditions and co-morbidities on her work capacity pursuant to the principle established by the High Court in Watts v Rake [1960] 108 CLR 158 and affirmed in Purkess v Crittenden 114 CLR 164.

Jarro DCJ noted that there had  been no evidence produced by the medical experts (Dr Boys for the defendant and Dr Kilian for the plaintiff) with any specificity as to when, but for the incident, the plaintiff’s pre-existing conditions would have caused her to be unable to work as an endorsed nurse.

However, his Honour decided that the defendant’s onus had been met and that the plaintiff’s damages ought to be discounted to take into account a probability that at some point she would have had to cease duties due to the pre-existing orthopaedic conditions and other co-morbidities and her advancing age.

Taking these factors and reductions for vicissitudes in other cases into account, Jarro DCJ applied a 50% reduction for contingencies and awarded the plaintiff $180,500 for future economic loss.

Implications for you

The decision confirms that a defendant can discharge its onus to disentangle the effects of pre-existing conditions and co-morbidities from the compensable injury without specific evidence of when those conditions would have otherwise caused the plaintiff to be unable to work.

Pearce v Prescare [2020] QDC 149

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Emma Topen

Emma Topen

Senior Associate