Koven v Hail Creek Coal Pty Ltd [2011] QSC 51

[1] McMEEKIN J: Mr Paul Ashley Koven suffered an injury to his ankle on 13 November 2007 in the course of his employment with the defendant, Hail Creek Coal Pty Ltd.

[2] Liability is admitted. I am required to assess damages. Some heads of loss are agreed but significant differences remain in relation to general damages, future economic loss and future paid care.

[3] The plaintiff was born on 15 January 1961. He was therefore 46 years of age at the date of the accident. He was aged 50 at the time of the trial.

[4] The plaintiff suffered an inversion injury to his left ankle. The orthopaedic evidence was that as a consequence the plaintiff had:

(a) disruption of the anterior Talo-Fibula ligament and the lateral ligament to the left ankle (calcaneo fibula ligament);

(b) a bony and articular cartilage injury to the medial aspect of the Talar Dome;

(c) secondary instability of the left ankle joint due to the ligament injury.

[5] The plaintiff was off work for approximately one week and then returned to light duties however his ankle continued to give him discomfort.

[6] The plaintiff was referred to Dr Mark Shaw and then to Dr Terry Saxby, both orthopaedic surgeons but the latter specialising in disorders of the foot and ankle. Dr Saxby determined that surgery was required in the form of a left ankle arthroscopy and a "Brostrom's procedure". The surgery was performed on 20 May 2008. The plaintiff had a difficult time after surgery with repeated infections. He was kept in a "moon boot" until September 2008.

[7] In September 2008, the plaintiff returned to the mine site at Hail Creek on restricted duties on a return to work program where he remained for about six weeks. His employment with the defendant was terminated on 24 April 2009 because he could not perform his full range of duties and no suitable duties could be found for him.

[8] The plaintiff remained unemployed until, in October 2009, he obtained employment with All Tilt Transport of Mackay as a casual truck driver. He continued in that employment for about ten months. He then commenced employment with Mackay Transit Coaches Pty Ltd on 18 August 2010 as a bus driver.

[9] As might be expected the injury has had a significant impact on the plaintiff's ability to enjoy his life. He is a widower with two teenage daughters, and cannot engage in activities with them nor enjoy his pre-accident pursuits of golf, snorkelling, fishing or walking to the same degree. The plaintiff complains of ongoing pain, usually present. There was no suggestion that the plaintiff overplayed his injuries and my impression generally was that he was quite stoical.

[10] The parties relied on the opinions of two orthopaedic surgeons, Dr Saxby and Dr Cook. There is no great difference between their opinions. Both thought that the percentage of disability was in the order of a 5% whole person impairment. Dr Cook suggested a 12% level of permanent impairment in relation to the left lower limb.

[11] Dr Saxby expressed the view that the prospects of the plaintiff returning to his previous employment were "not good". In his later report of January 2010 he opined that Mr Koven had ongoing pain due to the injury to the articular surface, that the surgery he performed had effectively been a failure and because of that Mr Koven had not been able to return to manual work. Dr Saxby thought that the plaintiff was likely to be able to return to light manual or sedentary work and that he should be able to work full time as a tilt tray truck driver. Dr Saxby thought it consistent that the plaintiff may have difficulty mowing the lawn, working on uneven surfaces or standing for prolonged periods of time. He thought that the use of orthotics may be required.

[12] Plainly the doctor thought that ongoing pain would be the restriction and his opinions about what the plaintiff could and could not do depended on the doctor's perception of the likely impact of the activity on the plaintiff's pain levels and presumably stoicism.

[13] It was evident that Dr Cook also thought that pain, and the plaintiff's ability to cope with it, was the overriding consideration when considering employability. In his oral evidence after pointing out that all the doctors could do was generalise as to the likely future deterioration in the ankle joint following such an injury, he gave the following evidence:

"And just in relation to the last point about the ability of the - Mr Koven to do different duties, and you said to his Honour about a job where he was required to be on his feet all the time might not be suitable for him? --- Yes.

It's the case that you, in conjunction with Dr Saxby, agree that he nevertheless is suited for jobs which are light manual work, sedentary work or even moderate manual work, even with his disability? --- Provided he has the opportunity to be able to sit down whenever any aches or pains or swelling in his ankle become too uncomfortable or too bad."[1]

[14] Dr Cook made it clear that the onset and severity of pain was unpredictable.[2]

(a) the Plaintiff will not be able to perform heavy manual work, or work on uneven surfaces, but he should be able to do sedentary work or light manual work or work restricted to a level surface;

(b) the Plaintiff may require assistance with mowing his lawn or domestic tasks where he needs to work off ladders or at heights;

(c) no further treatment is presently required save for conservative measures such as anti-inflammatory type medications and perhaps orthotics;

(d) future deterioration of the ankle joint is a possibility and if that is sufficiently serious an ankle arthrodesis is a possibility in the future. If it was undertaken, the Plaintiff would not be able to work for at least 6 months following such surgery.

[16] Damages fall to be assessed under common law principles. The defendant contended for an assessment of $60,000 and the plaintiff for $90,000. Both sides referred to my decision in Craddock v Anglo Coral (Moranbah North Management) Pty Ltd [2010] QSC 133, a case involving a similar injury to the left ankle, where I awarded a 47 year old plaintiff $60,000 damages under this head. No other decisions were cited as being of assistance.

[17] Ms Heyworth-Smith for the plaintiff contended that there were significant distinguishing features between this case and Craddock. She pointed out that Mr Craddock was able to get back to his mining employment following his injury and Mr Koven could not. Mr Koven therefore was denied the benefits of well paid employment that he would otherwise have enjoyed, she submitted. The distinction is not great. Mr Craddock did not last long back at mining work and in any case his loss of his mining career was a very significant blow - he had followed it all his life unlike Mr Koven who had only limited prior experience in the industry.

[18] Mr Craddock injury was described by the orthopaedic surgeons as "osteochondral injuries" in three locations within the ankle. Those injuries resulted in progressive arthritic change. Mr Craddock underwent two surgical procedures both of which failed. He had a long period out of employment whilst convalescing. All this is very similar to Mr Koven's experience. Whilst Mr Craddock managed to get back to mining work he misled his employers about his condition to do so. He ended up driving plant at a much reduced wage just as Mr Koven has done. Like Mr Koven he was left with a 5% whole person impairment with the prospect of increasing degenerative change.

[19] I cannot distinguish the two cases in any meaningful way.

[21] The plaintiff's past economic loss was agreed at the commencement of the trial to be $164,379.04. The trial was adjourned for some five weeks. It was conceded that there ought to be an adjustment in the figure to allow for the continuing loss over that period of the adjournment. I was told that the ongoing loss was assumed at $1,676[3] less current earnings which I understand are $518.97 during the school term. I will adjust the agreed figure to reflect this loss and adopt $170,000 as the loss to date.

[22] The significant debate centred on future economic loss. The plaintiff submitted that his damages ought to be assessed at $810,000 and the defendant submitted at $310,000.

[23] It is not in issue that but for the subject injury the plaintiff would have continued in his pre-accident employment at the Hail Creek mine. He was then a trainee drag line operator. The defendant's approach was to assume that but for the subject injuries the plaintiff would have maintained employment as a drag line operator until about age 60 years on an average net weekly wage of $1,649. As he is, he can work full time in the occupations that he has tried - that is truck driving or bus driving and earn $710 net per week. After age 60 he will not be significantly disadvantaged by his injuries. There should be significant discounting of any calculation. So the submission went. The plaintiff disputed each step in that reasoning.

[24] There are three principal issues - what weekly wage should be used as potential earnings when employed in the mining industry, what average weekly wage best reflects Mr Koven's residual earning capacity, and to what age was he likely to maintain his employment in the mining industry?

[25] The assessment is complicated because the method by which wages are determined is not straight forward - two men in the same position can have a markedly different wage. The defendant called its human resources manager who presented a schedule which purported to accurately calculate precisely what the plaintiff would have been earning with the defendant assuming continued employment as a drag line operator and that he maintained his rating as a "good performer".[4] That schedule showed an annual gross income of $119,955 or $1,649 net per week, for which the defendant contended.

[26] There is at least one difficulty with the schedule and that is that it assumes no business performance bonus is paid in calculating the current year earnings. In every year covered by the schedule such a bonus has been paid. Last year a bonus of $6,500 was paid, the year before $1,874, and in the years before that $4,000, $3,000 and $4,000. It seems highly unlikely that no bonus will be paid when the time comes to consider it in the current year. Certainly the defendant led no evidence that the previous custom was to change. The inference then is that present performance levels don't support an inference that there will be any change.

[27] Ms Heyworth-Smith attacked the schedule on other grounds pointing out that a sample of payslips taken at random demonstrated variations mainly above the figure calculated by Mr MacDonald. The problem with such criticism is that to be persuasive there would need to be an analysis of all the payslips - it is evident that one person's wages may be above another's because of better performance ratings and entitlement to greater percentage increases. Only a few have been analysed.

[28] The plaintiff contended for a net weekly figure of $1,752.54 - assuming the base salary received by Mr Mackey is applicable. The difficulties with adopting Mr Mackey's figure is that the plaintiff had no intention of working for the Goonyella Riverside mine where Mr Mackey worked; there is no evidence that even if he wanted to work there he was likely to get a job there; Mr Mackey is a man of far greater experience in operating a drag line and hence may have some advantage; the wage structures at the two mines are plainly different; and quite obviously wages can be performance based, thereby negating any assumption of some necessary parity in the industry.

[29] I think that, subject to an adjustment for the probable receipt of a performance bonus, the defendant's schedule provides the best guide to the likely earnings.

[30] I adopt a figure of $1,687 as the current net weekly average wage likely to be earned had Mr Koven not been injured in the subject accident. I have simply averaged the performance bonuses paid since 2007 and deducted an amount for tax arriving at an additional weekly amount of $38.

[31] The second issue in relation to this head of loss concerns Mr Koven's residual earning capacity.

[32] The defendant's point was that the present net wage that the plaintiff was earning, and which he relied on as the measure of his residual earning capacity, was not necessarily an accurate measure of that residual capacity. That was so because he is only working part time - some 23 hours per week - as a bus driver. Both orthopaedic surgeons had opined that Mr Koven could work full time in the two jobs that he had attempted since dismissal from the defendant's employ and as well, as I have noted above, Mr Koven had a range of jobs still open to him. It should be noted that Dr Cook heavily qualified his opinion as I have recorded above.

[33] Mr Koven disagreed with the doctors. He believed that he could not last 8 hours a day as a tilt truck driver. His normal shift only involved journeys of one to two hours.[5] As well he had difficulties with driving the school bus the limited hours that he did, even though it had automatic transmission. He gave the following evidence in cross examination:

"Well, with your current employer, it's all automatic transmission when you drive the buses; isn't it?-- Most of it is. Ninety per cent of it is. Yeah.

And you could do that work for substantially more than 23 hours a week if it was available to you?-- Again, I can't sit for long - well, no. No. I can't sit for long periods of time in vehicles.

Why can't you sit, Mr-----?-- My ankle freezes up. So, when I get up I just about have no feeling in it.

It's your left ankle though?-- It's my left ankle. Yeah.

So, when you're driving is there anything that prevents you from moving the ankle around to stop it freezing up?-- I'm constantly doing that anyway. So, no, there's nothing preventing me doing - doing-----

All right?-- -----but it does - it just freezes up. I'm not sure why, but it does. It gets very stiff.

So, how often would you - how far could you drive before you have to get out and walk around? A couple of hours?-- Yeah. I've - I have done a couple of hours with them and yes, you - you get out and I've got to walk around."[6]

[34] There is a qualification that needs to be recognised with orthopaedic opinions of the type relied on by the defendant. The men proffering the opinions are themselves not truck drivers or bus drivers. The day to day reality that the work entails may not be quite as they envisage. And where it is acknowledged that pain is the restriction and that pain can be triggered by a variety of movements or forces that might impact on the joint, or indeed simply changes in the weather, or for no discernible reason, I would need cogent evidence to persuade me that a doctor has the greater capacity to judge what a man can do in such employment than the man himself - where the person in question is accepted as an honest reporter, which I certainly do here.

[35] Nonetheless the point is well made that Mr Koven has a strong work ethic, would wish to work longer hours, has a range of abilities that are untested, and is not necessarily maximising his potential working only 23 hours a week in school term.

[36] The plaintiff submitted that given that he has a reduced capacity for work, and given that there is no attack on the reasonableness of his efforts in obtaining work to date, then in the absence of evidence demonstrating the availability of employment for a greater number of hours or the availability of alternative and better paid employment to which the plaintiff is suited the defendant fails to discharge the evidential onus on it. It follows, it is submitted, that I am obliged to accept the present earnings as demonstrative of the residual capacity relying on Thomas v O'Shea (1989) ATR 80-251 at page 68,701. In that case Malcolm CJ and Wallace J held (with Kennedy J agreeing):

"The question remaining is what was the appellant's residual earning capacity, if any. This was clearly a case where, as the learned trial Judge found, the appellant had lost the earning capacity he had before the accident. The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at p.657 per Barwick CJ; Van Velzen v Wagener (1975) 10 SASR 549 at p.550 per Bray CJ; and Linsell v Robson [1976] 1 NSWLR 789 at pp.253-254 per Hutley JA; and at pp254-255 per Glass JA. In Baird v Roberts [1977] 2 NSWLR 389 it was held that a defendant who seeks to show that the plaintiff can still do "light work" or follow a "sedentary" occupation must adduce evidence that the plaintiff is able to do such work and to obtain it and what the earnings from it would be. The Full Court in Victoria has taken the same approach: Vandeloo v Waltons Ltd [1976] VicRp 6; [1976] VR 77."

[37] Several points can be made. O'Shea was concerned with a case where there was an issue about the plaintiff having a residual capacity at all. Here there is ample evidence that the plaintiff has a residual earning capacity. That is not in issue. Secondly, Thomas v O'Shea does not represent the law in Queensland: Bugge v REB Engineering Pty Ltd[7] and confirmed in Anodising & Aluminium Finishers v Coleman.[8] In Bugge Chesterman J, as his Honour then was, said, after referring to the passage from O'Shea that I have set out:

"[45] ....The passage has been referred to with evident approval by a number of judges in this court but, with respect, if it is intended to lay down as a principle of law that in the circumstances described a defendant who does not adduce evidence of the kind mentioned will be unable to have damages assessed on the basis that the plaintiff has a residual earning capacity, I cannot agree with it"

"[50] This being the nature of an evidentiary onus, it seems to me impossible to propound in advance as a principle of law where an evidentiary onus will lie. It can only be determined in the course of evidence at trial. I cannot accept that, as a matter of law, I must find that the plaintiff has no residual earning capacity because the defendant did not adduce evidence that work of which the plaintiff is capable is available. In my view, the assessment of damages for lost earning capacity has to be made with reference to all the evidence that touches that point including, of course, evidence (or the lack of it) as to the availability of work which an injured plaintiff can perform. But there can be no mechanistic approach which requires the court to disregard residual earning capacity unless a defendant adduces evidence of available alternative work."

[38] I observe that in a practical sense it will often be an impossible burden for a defendant to adduce evidence that a particular plaintiff will get work at a particular level of wages. But it may be plain that the probabilities favour a finding that he is very likely to do so.

[39] Currently the plaintiff is earning $518.97 net per week driving a school bus. This is the figure he earns when working only 23 hours per week. Averaged over a year the figure reduces to $295.47 per week net, because of school holidays and the unavailability of work then, and that is the figure the plaintiff contends for as reflecting his residual capacity.

[40] Here I am satisfied that Mr Koven has a greater residual earning capacity than shown by wages reflecting a 23 hour week for 40 weeks of the year as a bus driver. At the very least Mr Koven has 12 weeks a year available where he can pursue casual employment without disrupting his present work. As well he can work in a sedentary capacity and full time work of that type would certainly bring to him a significantly greater income. He has a range of skills which he identified when pursuing work with the defendant after his injury.[9]

[41] Although it is impossible to be precise I assess his current residual capacity at $500 net per week. Given the prospective deterioration in his ankle joint it seems unlikely that he could sustain that same level of earnings into his sixties. I will reduce his residual capacity to $250 per week after the age of 60 years.

[42] The plaintiff said that he wished to maintain his employment in the mining industry for as long as possible and submitted that the assumption should be that he would maintain his employment until 67 years of age. The defendant contended that this was quite unrealistic and pointed to statistics relating to their existing work force - there are no workers aged over 60 years and those aged over 50 years constitute only 12% to 20% of the workforce. The defendant contended that an allowance to age 60 years was generous to the plaintiff relying on the following matters:

(a) The plaintiff had only been at Hail Creek Mine since 21 November 2005, ie just on 2 years at the date of the accident. He did not therefore have firmly entrenched work history with the defendant (in contrast, for example, to the plaintiff in Craddock);

(b) The plaintiff had only been mining generally since 2003 when he obtained employment at the Goonyella Riverside Mine. By the age of 46 therefore, the plaintiff's total period of employment in mining at the time of the accident was 4 years;

(c) Of the plaintiff's 4 years of mining work, only 18 months of it was as a trainee dragline operator, the balance was operating other plant, driving dozers and haul trucks;

(d) The plaintiff was still a trainee operator at the time of his accident;

(e) An analysis of the ages and longevity of the drag line operators employed at the Hail Creek mine demonstrates not only the matters referred to above but also that few operators over 50 years of age stay any length of time and that the average age of dragline operators over the course of the four years covered by the statistics was 40 years or below.

(a) The defendant mine is only a very young mine. It commenced production in 2003. It has not been in service long enough for those workers who were over 50 years of age when it started to reach 60 years yet and so its statistics are not a reliable indicator of the likely future;

(b) The experience in other mines is different - a Mr Mackey was called who is a drag line operator at the Goonyella Riverside mine where there are four drag lines. Hail Creek operates two drag lines. Mr Mackey himself was 57 years of age and still in employment. Whilst objection was taken to him giving hearsay evidence of the ages of his fellow workers[10] he did give evidence that two fellow workers had the appearance of men in their mid 60s;

(c) Hail Creek Coal Mine Pty Ltd is a subsidiary of the Rio Tinto group, one of the largest mining companies in the world. That group would have available to it statistics of a much wider, and hence more statistically reliable, population base than the 24 to 38 drag line operators at the Hail Creek mine mentioned in their statistics.[11] It is not apparent why the defendant could not have access to such statistics.[12] The failure to produce such statistics suggests that they do not assist the defendant;

(d) There are matters personal to Mr Koven that made it very likely he would continue on to his mid 60s. He was fit and strong before this accident (and I observe he was a strongly built gentleman at trial). He had lost some $500,000 in the Storm Financial collapse. He had started late in the industry, only four years before his injury. Because of these two latter factors he had no accumulated capital to enable an early retirement. As well he had two young daughters to support[13] - their mother had died - and so added reason to keep working.

[44] It needs hardly to be said but work in the mining industry is not for everyone. It involves working in difficult conditions and usually in remote areas. Long periods can be spent away from home. Plant operation in such conditions has its risks as evidenced by the occasional claim for damages for personal injury that comes before the courts. There are more reasons to limit time in this industry than in many others particularly as one ages. It is not inherently surprising that the statistical evidence, limited though it is, points strongly to the likelihood that, on average, drag line operators do not generally stay on in the industry.

[45] The task however is not to predict what the average person might do but what this plaintiff was likely to have done. I note that in reaching a view as to this hypothetical future event, I am required to assess the degree of probability that the event might occur and adjust the award of damages to reflect the degree of probability: Malec v JC Hutton Pty Ltd.[14] I observe too that the plaintiff's assertion that he would have continued to work means little - he cannot know now how he might have felt if uninjured and in his sixties.

[46] There obviously is no precision in any estimate of the likely future. I bear in mind the cautionary dictum of Stephen J (about discounting) in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 431: "The concern of courts should not be, as is often said, lest processes of assessment bear an illusory air of precise accuracy but rather lest their outcomes bear the all too real appearance of gross inaccuracy in attaining anything like a proper measure of compensation."

[47] I think that there was a good chance of the plaintiff maintaining employment in the mining industry to age 60 years and some chance that he would have continued thereafter. I propose adopting the defendant's approach of allowing damages through to age 60 years but discounting those damages for the various contingencies by 20%, acknowledging that the approximate ten year period in question is a short period for so large a discount, but thereby allowing for the chance that the plaintiff could have tired of the mining life before then as being more than just a remote possibility.

[48] Thereafter the prospects of the plaintiff maintaining employment in the mining industry diminish. Plainly men do go on past 60 years of age in the industry. But they are relatively few. There are good reasons for the plaintiff to have continued in high paying work as identified in the submissions. However quite apart from he becoming wearied with age there is the prospect that the present mining boom will not last. I think that I can take judicial notice of the fact that commodity prices are at record levels and hence so are employment levels in that industry.[15] But it has not always been so. Much depends on overseas demand for Australia's mineral wealth which is unpredictable.

[49] Bearing these matters in mind I propose assuming continued employment in the mining industry to age 65 years but discounting that possibility by 50%.

[50] In arriving at these percentage discounts I am conscious of the evidence that the ankle might deteriorate significantly. Mr Koven may require surgery. Such surgery would lead to a period of approximately 6 months off work. That is only a possibility.[16] Even if the deterioration is not so bad it still could impact on his residual earning capacity and probably more so as he ages.

[51] I assess the future loss of earning capacity at $495,000.[17]

[52] The plaintiff submitted that he should be compensated in the sum of $15,705.80 for his need for future assistance calculated as follows:

(ii) $37.50 per week x 12 years delayed by 5 years (17 year multiplier 603 less 5 year multiplier 232 = multiplier 371) = $13,925.00

(i) Gutters - $25.00 per hour x 3 hours (twice per year) - $150.00 per annum

(ii) Walls & Ceilings - $25.00 per hour x 2 hours (twice per year) - $100.00;

(iii) $4.80 per week x 12 years delayed by 5 years (multiplier 371) = $1,780.80.

[53] It is not in issue that at common law damages could be awarded for the accident created need for these services: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. However the recoverability of each of these heads of damage is potentially governed by the provisions of the Workers Compensation and Rehabilitation Act 2003 ("the Act").

[54] The defendant submits that s308B, C, D and E of the Act are relevant. They provide:

"308B Paid services provided to worker before injury

(a) before the worker sustained the injury, the worker was usually provided with particular services that were paid services; and

(i) the worker is, or is to be, provided with paid services that are substantially of the same kind; or

(ii) the worker is, or is to be, provided with gratuitous services that are substantially of the same kind.

(2) A court can not award damages for the cost or value of the services that have been provided to the worker after the worker sustained the injury or that are to be provided to the worker in the future.

(1) This section applies if, before the worker sustained the injury, the worker usually performed particular services.

(2) A court can not award damages for the cost or value of services of substantially the same type that have been provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services.

308D Gratuitous services provided to worker before injury

(a) before the worker sustained the injury, the worker was usually provided with particular services that were gratuitous services; and

(i) the worker is, or is to be, provided with paid services of substantially the same type; or

(ii) the worker is, or is to be, provided with gratuitous services of substantially the same type.

(2) A court can not award damages for the cost or value of the services that have been provided to the worker after the worker sustained the injury or that are to be provided to the worker in the future.

308E Services not required by or provided to worker before injury

(1) This section applies if the worker usually did not require or was not provided with particular services before the worker sustained the injury.

(2) A court can not award damages for the cost or value of any services provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services."

[55] Section 308A contains definitions of both gratuitous services and paid services. The former are:

"... services, other than paid services, that are provided to a worker by a member of the worker's family or household, or by a friend of the worker."

"... that are provided to a worker at commercial rates by another person in the person's professional capacity or in the course of the person's business."

[56] There is no dispute that the services required here are "services" within the meaning of these provisions.

[57] Since the accident mowing has been performed by a daughter and her boy friend,[18] save for one occasion.[19] Cleaning gutters and mould from walls and the like has been performed by friends without payment[20] save that a cleaning lady engaged by the plaintiff at commercial rates after the accident included cleaning mould off walls as part of her duties although only occasionally I gather.[21]

[58] There was no direct payment made to the daughter and her boy friend for the mowing but occasionally payment in kind.[22] Plainly those services must be classed as "gratuitous services" for the purposes of the Act given the definitions contained in the Act.

[59] Here the plaintiff himself performed the services in question prior to his injury[23] - hence s308C applies. It can be seen that the right to damages depends on whether the services provided post injury were paid for or were gratuitously provided. No damages can be awarded if the services were gratuitously provided subsequent to the subject injury. But here the services, whilst principally provided gratuitously, have in part been provided at a commercial cost. Until recently there was some doubt as to the applicability of the provisions of the Act to services that were occasionally paid for and occasionally rendered gratuitously. That doubt has been resolved by the decision in Foster & Anor v Cameron[24] - such hybrids, as Chesterman JA termed them, are not covered by the Act. The position is now clear that if services are provided partially gratuitously and partially paid for at commercial rates then the injured worker will not be precluded from an award of damages by the provisions of the Act.

[60] There is no evidence that the cleaning of gutters has been performed at a commercial cost to the plaintiff.

[61] No claim was pressed for the services principally provide by the cleaning lady.

[62] I allow $15,000 under this head of loss, generally adopting the plaintiff's approach to the assessment, the methodology of which was not challenged, but adjusting for the allowance for gutter cleaning.

[63] It is agreed that this loss should be allowed at 9% of the amount allowed for past and future economic loss.

[64] I allow $15,300 for the past and $42,750 for the future.

[65] With his change in employment the Plaintiff now has to drive to and from his workplace twice a day that has resulted in his incurring fuel costs that he previously did not incur. Additional travel expenses incurred in maintaining employment are allowable as a cost of mitigation of the loss caused by the accident.[25] The parties have agreed on an amount of $20,000 for this head of loss.

[66] The defendant provides meals to its employees. The parties have agreed that the value of that employment benefit was not less than $120.00 per week[26] and compensable.

[67] For the period since the subject injury the parties have agreed that the appropriate component of the award is $12,960 up to the first day of trial. Again I assume that the amount needs to be increased to allow for the five week adjournment. I allow $13,560.

[68] As to the future I will allow the loss for the period covered by the assumed future employment in the mining industry but with a significant discount. The continuation of such benefits is obviously discretionary and subject to greater uncertainty than the prospects of continued employment.

[70] There will be an ongoing need for treatment. An amount is claimed for the cost of anti-inflammatory and pain killing medication. There is evidence to support a modest need.[27] As well, an amount has been agreed for the cost of orthotics.

[71] I will allow the sum of $4,000 under this head.[28]

Interest on Past Economic Loss and Past Loss of Subsidised Meals

[72] It is uncontroversial that interest should be allowed on past losses at 5% save in respect of past loss of superannuation benefits where the defendant contends that no interest should be allowed.

[73] The defendant submitted that the amount of the past loss of income on which interest ought to be allowed should be reduced by:

(a) $52,602.03 (WorkCover weekly benefit and lump sum),

(c) $45,417.00 being lump sum paid by employer on termination

being a total of $111,622.93. There was no submission made as to why this course should not be followed. Each amount represents a benefit that the plaintiff would not have received but for his accident caused injury. It seems just that they be brought into account.

[74] I will allow interest on $58,377.07 of the past loss of income at $9,700.

[75] I will allow interest on past loss of subsidised meals at $2,257.

[76] No submissions were addressed to the question of whether it was proper to allow interest on the past loss of superannuation benefits when calculated in this manner save that one side claimed it and the other said it was not the practice to do so. Cases can certainly be found where interest has apparently been allowed eg Townsend v BBC Hardware Ltd [2003] QSC 015 per Ambrose J; Ollier v Magnetic Island Country Club Incorporated & Shanahan [2003] QSC 263 per Cullinane J; Friend v Rye [2000] QSC 502 per White J, but without discussion of principle. There are many more cases where no amount has been allowed.[29]

[77] The award is to compensate a plaintiff for the contribution that his or her employer was obliged to make to superannuation under the Superannuation Guarantee (Administration) Act 1992 (Cth). The adoption of a short hand method of calculating this loss came about because of the difficulties inherent in any precise calculation and the recognition of the many imponderables. It is certainly true that the plaintiff has lost not only the contribution but also the earnings on that contribution that may have been achieved. But in the ordinary case it is difficult to see why there should be an assumption of a net return of 10%[30] on such a fund. Recent publicity has suggested that most funds do not achieve anything like that return. It is notorious that in the global financial crisis many funds suffered a severe reduction in capital, let alone achieved a return on investments. As well, earnings of the fund are taxed at 15% but that might depend on imputation credits and other imponderables. Further in the ordinary course the plaintiff would not receive any benefits from the fund until retirement or transition to retirement. The taxation treatment of the receipt of those benefits, and hence the actual loss sustained, would depend on which of those two courses was adopted. While I have no evidence on the matter I suspect that detailed actuarial calculations would be needed to identify with any precision whether the detriment the plaintiff has suffered warranted an additional component of interest.

[78] The onus lies on the plaintiff to establish his loss. I have understood the practise has generally been not to allow interest on the past component of the loss of superannuation benefits, as Ms Treston submitted. I understand that to be so because of these many imponderables which impact on any precise calculation. The short hand method produces an award that gives perhaps rough justice but, in the absence of any further evidence about the likely loss or submission as to why this ordinary practise ought not to be followed, I am not prepared to award interest.

[79] I was informed that certain items of the special damages claimed were conceded by the defendant.[31] The subsequent submissions received indicate some difference which may reflect only poor arithmetic skills. I do not understand Ms Treston to resile from the opening remarks where I was informed that the following items totalling $11,239.40 were conceded:

(a) Dr Dawes - $102.90

(b) Queensland X-Rays - $82.50

(c) Podiatry & Orthotic expenses - $220.00

(d) Refund to DEEWR - $6,385.00

(e) Travelling expenses - $4,389.00

(f) Pharmaceutical expenses - $60.00

[80] The special damages not conceded relate to the expense of hiring a cleaning lady in the sum of $4,050.00.

[81] Mr Koven gave evidence that he hired a cleaning lady, Michelle, in May of 2008 when he underwent the surgery that was performed by Dr Saxby after which she did various types of cleaning at his home for two hours each week because there was a lot that he could not do because he could not mobilise.[32]

[82] An attack was made on Mr Koven's credit in the defendant's submissions. There were two contentions. One was that as he had no financial records, such as receipts, and did not call the cleaner, to support the claimed payments, so he should not be believed. The second was that because he had not complained to doctors about any inability to perform tasks then it should be doubted that he had any such inability.[33]

[83] I reject those submissions. Mr Koven seemed patently honest. The cleaning lady no longer works for him. It was not shown that he knew of her whereabouts. The lack of any documentation is typical of these sorts of arrangements. And given that he originally hired the cleaner at a time when he was patently disabled and had difficulty mobilising at all it is hardly surprising that the subject of his ability to perform all household tasks was not raised by him or the medical practitioners.

[84] However the one difficulty that I perceive with the claim is whether it offends the principle identified in CSR Ltd v Eddy[34], namely that the services were performed not for Mr Koven's benefit but for the benefit of his children. The evidence was not sufficiently precise to draw the necessary distinction. It is evident that Mr Koven was seriously disabled for a period and needed help but it seems probable that at some point the services were being provided to assist the family more generally.[35] Any imprecision in the evidence is the plaintiff's difficulty, given the onus of proof.

[85] Ms Heyworth-Smith, perhaps cognisant of this difficulty, submitted that "at a minimum" the Plaintiff was entitled to recover for the domestic services provided between the date of the accident and the date he returned to work (12th May 2008 to 10th November 2008). I accept that submission and allow $1,250.[36]

[86] In total I allow $12,489.40 under this head of which $6,104.40 will bear interest.[37]

Interest on Past Economic Loss and Past Loss of Subsidised Meals

[89] There will be judgment for the plaintiff in the sum of $866,486.58.

[3] Para 22 of the plaintiff's submissions Ex 17

[4] See Annexure A to ex 14 and para 1.10 of Mr MacDonald's statement

[7] [1998] QSC 185; [1999] 2 Qd R 227 per Chesterman J

[8] [1999] QCA 467; [2002] 1 Qd R 141

[10] In an interesting twist the defendant relied on evidence of what their employees had told them their ages were - which is all its statistics amount to - but objected to the plaintiff doing precisely the same thing with Mr Mackey. It is true that there is a statutory exemption to the hearsay rule for business records recording "financial transactions" in s 83 Evidence Act 1977. But the evidence was of no greater or lesser weight. Whether the statutory exemption extends to incidental matters recorded by the defendant was not debated. No objection was taken and the evidence was therefore admissible.

[12] See the position of the Hail Creek human resources manager at T2-3/45 - 2-4/10

[13] Aged 14 and 12 at the time of the subject accident

[14] [1990] HCA 20; (1990) 169 CLR 638

[15] Those are "facts so generally known that every ordinary person may be reasonably presumed to be aware" of them, at least in Central Queensland, and hence proper matters of which judicial notice may be taken: per Isaacs J in Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 153

[17] $[(1687 - 500) x 413 x 80%] + $[(1687-250) x (555-413) x 50%] rounded

[19] T1-9/30. I note that the defendant's counsel assumed that this was pre accident at 1-18/15 but that was not apparent to me from the context of the plaintiff's earlier answers.

[24] [2011] QCA 48 confirming the decision of Douglas J at [2010] QSC 372 - the appellate court's decision was handed after the trial had concluded. I gave leave to each side to supplement their submissions as they saw fit. Each has done so promptly.

[25] Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 490-491, 495

[28] $2,527 for orhtotics as conceded and the balance for ongoing medication.

[29] A recent example is the decision of the Chief Justice in Duong v Versacold Logistics Ltd and Ors [2010] QSC 466 - see at [107] -[108]

[30] I assume that 5% is adopted by halving the assumed rate of return to allow for a loss on the last day as well as the first day of the period

[34] [2005] HCA 64; (2005) 226 CLR 1

[37] That is deducting the DEEWR refund