Scott v Usinch Pty Ltd (No 2)

Catchwords: DAMAGES – personal injury – where plaintiff successful in personal injury claim – calculation of damages for past economic loss and future treatment expenses

Legislation Cited: Workers Compensation Act 1987 (NSW)

Cases Cited: Penrith City Council v Parks [2004] NSWCA 201
Scott v Usinch Pty Ltd [2025] NSWSC 983

Category: Consequential orders

Parties: Brett Scott (Plaintiff)
Usinch Pty Ltd (First Defendant)
Epona Pty Ltd (Second Defendant)

Representation: Counsel:
A D Campbell (Plaintiff)
M Campbell (First Defendant)
O J Dinkha (Second Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Wootton + Kearney (First Defendant)
Turks Legal (Second Defendant)

File Number(s): 2020/00210362

Publication restriction: Nil

JUDGMENT

1. I gave judgment for Mr Scott on 28 August 2025, having concluded that he had established negligence on the part of the defendants when he was injured by a forklift while working at an abattoir in 2017: Scott v Usinch Pty Ltd [2025] NSWSC 983.

2. I directed the parties to confer and file proposed orders which reflected the judgment within 21 days, together with short written submissions about anything that remained in issue.

3. The parties agreed on the calculation of damages apart from past economic loss and future treatment expenses. They also disagreed about costs, which will depend on the amount of damages ordered.

Past economic loss

4. In August I explained why I had concluded that past economic loss should be assessed on the basis of a buffer: at [344]-[352].

5. Mr Scott’s case was that the buffer should be $300,000 and the defendants that it should be $150,000.

6. I have concluded that the defendants’ case must be accepted.

7. In the August judgment I explained that:

“344 Both past and future economic loss were pressed on the basis that Mr Scott could not work again in the course of his expected working life because of the injuries which he suffered in the 2017 accident.

345 Mr Scott pressed $563,342.68. This had regard, after some 2 years, to claimed earnings as a supervisor at the abattoir at a sum of $1,454.31 per week, $77,000 per annum, that being less than the average rate of earnings. But there was no evidence what such earnings were.

346 Nor, am I satisfied, did the evidence establish that had he not been injured as he was, Mr Scott would have obtained or remained in such employment, or in comparable work elsewhere in the Hunter Valley where it was claimed significant employment opportunities exist, for example in mining, for both supervisory and unskilled work.

347 Mr Scott has but limited work experience and none in supervisory work. That he had the capacity to perform such work was not established. His future economic loss thus cannot justly be calculated by reference to what he would earn in a supervisory position.

348 The defendants urged $67,112.50, that representing his pre-accident earnings of $650 net in the time he had worked at the abattoir, for 25% of the past, as well as $7,382.37 for superannuation, that being calculated as 11% of $67,112.50. They contended that labouring was a low paid occupation and Mr Scott would be able to perform higher paid sedentary work, with appropriate rehabilitation.

349 Given Mr Scott’s very limited employment record I am satisfied that his past economic loss can only be based on what he was actually earning in Epona’s employ, which it appears was not dissimilar to the other unskilled employment he shortly had and lost before he took up employment with it.

350 But even though I am satisfied that Mr Scott has been unable to work since the accident, as was his evidence, it being largely supported by the expert evidence, I am not satisfied that on his record, it can be concluded that he would have maintained employment at Epona or other similar, regular employment, despite his ambitions.

351 Much more likely, I am satisfied, is that his employment would have been intermittent as it has been in the past. Albeit likely not to the same limited extent, given that his son has started school and Mr Scott altered his course, having recognised the need to work to support him.

352 It seems to me that this head of damage necessarily should be dealt with by way of a buffer. About which the parties should confer further.”

8. Mr Scott’s case, having referred to these conclusions was simply that there should be a buffer of $300,000.

9. The defendants contended that this could not be accepted, there having been no explanation of what this buffer was based on. They each contending that the buffer should be $150,000.

10. Usinch explained in its submissions that if Mr Scott had been awarded damages from the date he was injured until the date of judgment at the rate of $650 per week, his loss would amount only to some $274,950. While a 50% reduction would result in an award of $137,475, with the result that a buffer should not exceed $150,000.

11. Future economic loss was awarded by way of a buffer of $250,000. It followed that the buffer for past loss over some eight years, could not exceed that arrived at for a future period of approximately twenty-four years.

12. Epona’s case was that if Mr Scott’s claim for past economic loss had been accepted, he could have only been awarded $280,800 and that given the conclusions arrived at, the buffer he pressed which exceeded that figure could not be awarded.

13. In the result the buffer the defendants proposed properly reflected the conclusion that had Mr Scott not been injured as he was, his employment after the accident would have been intermittent, as it had been in the past.

14. The force of the cases which the defendants advanced must be accepted. Mr Scott did not provide any explanation for the buffer he proposed and it not being able to be accepted as reflecting the conclusion reached in the August judgment about the disputed evidence led at the trial.

15. It was explained in Penrith City Council v Parks [2004] NSWCA 201 that “The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine”: at [6]. It being directed to likely future circumstances and the possibility, preinjury, of relevant events occurring, with compensation awarded for the chance that a claimant was disadvantaged in the future, because of the injury: at [58].

16. Those considerations drove the conclusion that even if he had not been injured as he was, Mr Scott’s employment would have been intermittent as it has been in the past before he was employed at the abattoir. I have concluded that on all the evidence, it is just for them to result in the award of the proposed buffer of $150,000, which adopts a relatively generous approach, given Mr Scott’s past record of employment.

Future out of pocket expenses

17. In the August judgment I noted that Mr Scott claimed $68,306.00. That reflecting consultations with psychiatrists, psychologists and general practitioners, as well as for teeth implants, rehabilitation and pain management, medication and travel expenses: at [405].

18. That was resisted, but I concluded that such damages must be awarded, albeit in respect of Mr Scott’s teeth, only for those front teeth broken or knocked out in the accident: at [409].

19. In doing so I largely rejected the defence case, having regard to the problems Mr Scott had experienced when his rehabilitation was not supported as it ought to have been, with the result that he had not had the treatment which he ought to have had in the past. I accepted that he was angry and frustrated as a result with all of those he dealt with, including his solicitors and did not understand that he could have treatment he needed paid for earlier. I also did not accept that if he received damages for such expenses, he still would not pursue the treatment he needed: at [408].

20. Mr Scott proposed that the amount awarded should thus be reduced to $48,305, on the basis that his $30,000 claim for teeth implants would not be accepted, but that $10,000 for his two front teeth would be.

21. Epona did not resist this but Usinch contended that what had been decided in the August judgment was that Mr Scott only be awarded damages for his front teeth, at the agreed amount of $10,000.

22. That cannot be accepted, because that was not what the judgment intended to convey, despite how Usinch, but not the other parties have read it. In the result damages for future out of pocket expenses of $48,305 will be awarded.

Section 151Z(2)(c) Workers Compensation Act 1987 (NSW)

23. Mr Scott’s submissions explained the way in which the calculation had been undertaken, it having agreed with Usinch that the reduction required is 30% and the formula which had to be applied.

24. This calculation will now have to be undertaken in respect of the final damages award.

Costs

25. The parties should calculate final damages and confer about costs. If they are not agreed, within 14 days further short submissions should be provided with the proposed orders.

26. The matter is listed on 28 November 2025 at 9.30 am. In the event that what remains in issue can be decided on the papers, that listing will be vacated.

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