Watson v Gippsland Community Health [2021] VCC 651

Material Facts

The Plaintiff sustained a cervical spine injury in the course of her employment as a disability support worker.  The Plaintiff was at the time of the injury, maneuvering a client manually because the client’s electric bed was broken (so could not move the client electronically between a lying and a seated position).

Liability was not made out, however, the court considered of the damages, nonetheless.  The courted noted that the contributory negligence has been pleaded, but that no submissions had been made in that respect, so (if the damages were to be applied if liability had have been made out) no adjustment was made to damages in relation to contributory negligence.

Damages Findings

General Damages

The court considered that the plaintiff suffered ongoing pain and restrictions, was not able to work fully in a “career she loved” and had lost capacity to enjoy activities.  In contrast, the court highlighted, she had pre-existing susceptibility to cervical spine injuries and there had been instances where she had been involved in other events which may have contributed to the injury.  She also suffered from a separate lumbar spine condition which may have contributed to loss and restrictions.

As such, damages for pain and suffering were awarded at $180,000.00.

Past Economic Loss

On assessment of the evidence, the court considered the Plaintiff had some residual, partial earning capacity.  Some of the reduction in earning capacity was said to be due to various other incidents in which the Plaintiff had sustained various other injuries, however, the court did not accept that there was a long-term impact from each of these.

It was agreed between the parties that the salary forgone by the Plaintiff since the injury in December 2011 was $450,219.63 and that the foregone superannuation was $39,960.32.  Applying a discount of 45% considering the other injuries and then reducing that amount by the income (and super) received, the court awarded $211,642.80 for lost wages and $18,025.18 for lost superannuation.

Fox v Wood damages were $300.00.

Future Economic Loss

A similar method of calculation was used for calculation of future economic loss.  Applying the appropriate multiple, the total future earnings until a retirement age of 65 is $453,455.00 and superannuation of $40,266.00.  Again, the entire incapacity was not caused by the workplace injury.

The court reduced the amount by 20% in consideration of the retained earning capacity and then a further 35% for vicissitudes including the possibility that other spine conditions may have contributed to her earning capacity.  As such, future economic loss was assessed at $235,796.60 for lost earnings and $20,938.32 for lost superannuation.

Total

Total damages were assessed at $666,702.90.