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Written by Peter Carter

May 29, 2014

The “significant downturn” in Queensland mining that took hold in mid-2012 lasted just 9 months, according to evidence heard by a Rockhampton court in relation to the contested assessment of damages for a serious injury to a contract mine worker in April 2010.
The observations were made in relation to the claim by Scott Pollock, a 26-yr-old boilermaker with three children under five, for injury compensation as a result of a 100kg steel plate being dropped on to his foot in a Bowen Basin coal mine operated by Leighton Holdings subsidiary, Thiess.

Thiess and his actual employer, Australian Bearings Corp, admitted fault for the consequences of the crushed right foot. Their 3-day Supreme Court fight was over the extent of the financial losses that he and his family would face.

The companies pointed to the opinion of orthopedic specialist Terry Saxby, that Pollock’s claims of burning pain in the sole of his foot were “inexplicable” and contended he was overstating his difficulties in relation to maintaining his pre-accident take home $1,600 paycheque each week.

But His Honour took a favourable view of Pollock’s evidence and was “confident he was not being dishonest or deliberately exaggerating” as Theiss had alleged. Having accepted that the constant foot pain was genuine, the judge took the view that it would be “even more inexplicable” for the symptom to be unconnected to the crush event, the intricate surgery undertaken and the structural changes to his foot.

How then, should his related income loss be projected into the future, given the ups and downs of mining coal for export.

Justice Duncan McMeekin observed that the industry had undergone an unprecedented boom up to mid-2012, when it slumped until the occurrence of a May 2013 upturn. Taking what those in the industry may call a “bullish” view, His Honour concluded that a downturn of just 9 months, did not imply future employment volatility for skilled and able workers.

“In my view, the downturn in the industry, which has still not returned to its halcyon days” did not justify any more than a modest reduction in the calculation of the claimant’s loss of future income. Setting the bar at the $1,600/week figure, the judge ruled Pollock would still be well paid but – given his restrictions – future net income would be more likely around $1,100/week.

Damages were assessed at $865k including $455k for loss of future earning capacity based on a $500 income differential over the forthcoming 37 years.

Pollock v Thiess Pty Ltd & Ors (No 2) [2014] QSC 095 McMeekin J 16/05/2014

Categories: Personal Injury , Litigation & Law Practice

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