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Written by Peter Carter

January 24, 2012

In a Supreme Court verdict published last week, a Cardwell mine worker’s exaggerated recovery from youthful sporting injuries slashed the compensation awarded for his August 2005 work site accident at Century Mine in Queensland’s gulf country.
James Geary, a 41 yr old fly-in-fly-out haul truck driver, who arguably liked a fight more than a feed, was violently bounced around his cab as a 56-tonne rock was dropped down into the 400-tonne tipper. At stake in the 3 day Townsville trial, particularly because of a potential $1.3 million future earnings loss claim – generated by a six-figure pay rate – was the extent of the plaintiff’s lumbar spine injury and the progression of pre-accident lower back symptoms that Geary denied under cross-examination.

For 12 hour shifts in the dump truck, equipped with “tyres twice as tall as him” – two weeks straight on, one week off – he took home around $1,400 p.w. with all transport, food and accommodation on the boss’s tab. Geary’s lawyers were skilful enough to dodge several missiles aimed at his truthfulness: His return to work attempts was considered “impressive” notwithstanding “overwhelming” evidence that he consistently misled employers with claims of a clean medical history, to increase his job selection prospects.

Equally fortunate: implications of isolated amphetamine use; minor tax return discrepancies; a subsequent motor accident; a 16 schooner a day drinking habit on a “big day”; bar fights apparently too numerous to mention; and contradictions in his account of domestic violence order, were all – of themselves – largely overlooked by the court.

But his honour was not prepared to ignore the “catch me if you can” witness box denial of the effect of an injury two decades earlier and his football aches & pains borne from a 15 yr rugby league career that included a stint at Souths in Brisbane. That was – so held the court – nothing less than a deliberate strategy “to maximise recovery” as a result of which caution needed to be exercised about the veracity of each of his claims.

Contrary to the finding of fact that he already had a significant “multilevel degenerative back disease which was probably progressive”, our pugilist plaintiff had disingenuously claimed to all three examining orthopaedic surgeons – Malcolm Wallace, Bruce McPhee and David Morgan – to have been asymptomatic in the relevant parts of his anatomy.
Because the pre-existing back problems would likely in his view, progress to “the same order” in the fullness of time regardless, his honour had to apply a lesser comparative significance – as to the picture of his overall low back issues – to the later injury, than each of the specialists had in their written reports to the court.

You might think that this spelt doom for any future income loss award.

Not so. Because the former salary represented such a high starting point, there was always some possibility – “a chance that into the future” – there would be some degradation in earning power, in this case assessed at $300 weekly, total $200,000.

General damages ($50,000), net salary loss for the 6 years up to the trial ($70,000) plus medical etc expenses brought the judgment up to $380,000 a fraction of the $1.2 million contended for, but a good escape for our battle-scared warrior who was – in spite of all his flaws – accepted to be a hard worker who was never alcohol affected on the job.

In a further stroke of good fortune, the mine site employer failed to claw back out of the judgment, $16,500 paid to Geary as a goodwill measure following the accident. Given the weight of so many unusual circumstances, perhaps an even-handed outcome all round.

Postscript: On 2 February 2012 his honour awarded costs to the plaintiff but only up to August 2011 and because the plaintiff had failed to “better” the defendants’ offer of $500,000, the plaintiff was ordered to pay the defendants’ legal costs from August 2011 when the defendants’ offer expired, including the costs of the trial.

The plaintiff’s appeal was rejected in a majority (2-1) judgment of the Court of Appeal in September 2012.

Geary v REJV Services Pty Ltd & Ors [2011] QSC 419  Brisbane North J, published 17/01/2012

Categories: Personal Injury , Litigation & Law Practice

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