Written by Peter CarterMay 30, 2016
A 30-yr-old Korean student who operated his own business during the maximum 20 hrs/week he was permitted by his visa to work, has received $355k in compensation for a January 2014 motor accident despite his permission to stay in Australia expiring in less than 18 months.
Sungki Min came to Queensland on a working holiday in September 2012.
Twelve months later he obtained a 2 year student visa and began the first of three business related courses at the Australian College of Technology in Brunswick St.
His visa 8105 Work Limitation specified he must not work “for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session”.
When his injury compensation lawsuit came before the District Court last week, his current visa displayed an end date of November 2017.
Min asked the court to assess his loss of future income over 30 years based on the weekly income his silicone sealing start-up had generated during the period of his original student visa on the expectation he would be able to find a sponsor for the grant of permanent residence and continue the enterprise.
Judge Kiernan Dorney thought such an outcome reasonably likely “given his apparently assiduous devotion to his studies which have been successful in every respect so far”.
Indeed the judge was surprised that the income lost was claimed at just $954/week – his student earnings – rather than at a higher sum given that as a permanent resident his work hours would no longer be restricted.
“I intend to restrict future economic loss to a ceiling of the ‘claimed’ amount because,” he ruled “the requirements of the Uniform Civil Procedure Rules 1999 must be respected.”
In discussing the opinions of the various specialists called on to report upon Min’s lumbar spine injury, Judge Dorney singled out for disapproval that of neurologist John Cameron for attributing – for reasons the specialist appeared to struggle to explain – 30% of his injury to a pre-existing condition. His Honour preferred “the consistent diagnoses” of orthopaedists Brett Halliday & Malcolm Wallace and neurosurgeon Scott Campbell who agreed the impairment was 7%-8%.
Taking all factors into account – including the possibility he would need to return to Korea and work “where his brother works” – he assessed the prospect of Min gaining permanent residence and maintaining the business at 50%. Future loss of income was therefore allowed for half the future weekly loss, a total of $250k.
Not meeting the voluntary care damages threshold, Min endeavoured to recover for the cost of future paid domestic assistance.
Accepting “commercially sourced services can be the subject of an award,” the judge rejected that part of the ask due to the absence of “evidence from any commercial supplier of such services as to the way in which such a generalised claim could be appropriately met”.
The total award was $355k which RACQ must now pay.