Written by Peter CarterMarch 17, 2012
A visiting overseas plumber serving out visa-mandated farm duties at a Mungindi cotton gin has been awarded $567,000 injury compensation damages after the court rejected an orthopaedic surgeon’s “blunt” and “unreasonable” views.
Enda Judge’s foot was slashed and crushed in a slow-motion cotton compactor accident in May 2009 while here on a working holiday. In a series of journeys that would not have been out of place in the Amazing Race, he was rushed in the back of a ute to the local hospital where there was no doctor, then ferried on to the local airstrip to be stretchered aboard a Flying Doctor Service aircraft to Toowoomba General.
His wounds were cleaned and stitched and still a “wee bit spacey”, he was discharged the next day to travel by taxi and bus, back to the southern border farm. A week or so later – on crutches, still in severe pain and his toes starting to turn black – he was told at the local hospital to immediately make his way, by 8 hour road trip, to the Princess Alexandra Hospital in Brisbane.
During his three-week P.A. stay, four of his toes were amputated and skin harvested from his right thigh was grafted to the distorted right foot. With liability conceded, the contest in the two-day District Court trial decided last week, was all about his residual future work capacity and in particular the differing predictions of orthopaedists David Morgan for the plaintiff and David McIntosh for WorkCover.
Macintosh was convinced that the Irishman would be able to hold down a regular job in his trade, having “seen people with below-knee amputations working as a plumber”. He refused to concede any occupational deficit associated with “prolonged standing, walking, running, jumping, squatting or carrying heavy objects over uneven terrain”.
His Honour found such a robust opinion just as “unsettling” as the specialist’s agitation before he left the witness box, from not being asked by anyone “about his research on amputation of the toe”. Accepting instead the more sympathetic views of Dr Morgan, “whose opinions accord with the reality”, Enda was held significantly affected to the extent that he would be obliged to pursue a lighter working career that would reflect, as best as a court was able to assess “balancing adverse and positive contingencies”, a net weekly loss of $530.
The cotton company’s “good recovery” contention was bolstered, it thought, by surveillance pictures that showed him “kicking and chasing” a plastic beach ball and throwing a frisbee. The court thought these unconvincing, doing more to prove the plaintiff’s case than detract from it.
Notwithstanding the absence of permanent resident status, the court held that given that he had two cousins and brother domiciled here, more likely than not – particularly as he was also now in a de facto relationship and had sponsored employment for the next three years – he would remain in Australia.
Adopting a vicissitudes discount of 25%, future economic loss over the forthcoming 41 years was valued – just in time for St Patrick’s day – at $368,000, with a total assessment of $613,000.