Written by Peter CarterUpdated on July 21, 2020
The Supreme Court last week ordered* a Rio Tinto company to pay a 50-year-old dragline operator $864,686.58 damages as compensation for injuries sustained at its Hail Creek Mine, 90 km south-west of Mackay.
Paul Koven suffered a serious left ankle injury in November 2007 for which the company admitted fault. Drs Saxby and Cook concurred as to a 5% whole person impairment with Dr Cook suggesting a 12% impairment of the left lower limb. They both agreed he would no longer be able to perform heavy manual work and would require assistance with domestic tasks including lawn mowing which he had before the accident, performed himself.
The case is remarkable only in two respects. In relation to future earning capacity, the current net average weekly wage (including bonuses) of $1687 was adopted for future potential earnings over the forthcoming 15 year period until retirement but was discounted by 20% until age 60 and by 50% from 60 to 65 yrs.
Against this and noting that “it is impossible to be precise” his honour assessed the residual income earning capacity at $500 net per week for the first 10 years and $250 net per week for the remaining five years. Secondly, this was another ‘hymow’ (“hybrid” performance of services eg mowing) case that as it happens, also involved mowing. Since the accident, Mr Koven’s lawns had been mowed by his daughter and her boyfriend gratuitously but on occasions, he had paid to have them done.
Referring to the “doubt as to the applicability of provisions of the Act to services that were occasionally paid for and occasionally rendered gratuitously” that had since been resolved by the decision in Foster v Cameron**, His honour went on to say “the position is now clear that if services are provided partially gratuitously and partially paid for at commercial rates, the injured worker will not be precluded from an award of damages by the provisions of Act”.
As other services such as cleaning of gutters and domestic cleaning had been rendered gratuitously, they were unrecoverable. Total damages were assessed at $917,000 resulting in an award of $864,686.58 after deduction of the WorkCover benefits already paid.