Colliery worker awarded over $1.1m for TPD

Published 30 Dec 2014

A 63-year-old man has been awarded $1.19 million after suffering a workplace injury that left him totally and permanently disabled (TPD).

The colliery worker was a passenger in an underground transporter vehicle, known as a PJB, when the driver hit a pothole in the road. This caused the plaintiff, a mine deputy, to bounce heavily in his seat and injure his lumbar spine.

It was revealed that the driver was travelling at high speed on a road known for its poor repair. Furthermore, the company that employed both men had previously warned the driver about his speeding.  

Despite undergoing two surgeries, there was little improvement and several doctors agreed he was unable to work in any realistic capacity. As such, he launched a TPD claim against his former employer in an effort to recoup compensation for loss of earnings, care needs and various other costs.

Lengthy proceedings

NSW Supreme Court noted that the plaintiff underwent a thorough cross-examination, which lasted 11 hours and 45 minutes over a period of 4 days.

According to the defendant - his employer - the questioning aimed to ascertain the man's credibility, establish the circumstances of the accident and assess his attempts at returning to work.

"Although the plaintiff was cross-examined at length and tested on a great number of matters, his evidence was consistent with contemporaneous reports and statements concerning the accident," court documents state.

Similarly, two medical experts that supported the plaintiff's TPD claim were described as "impressive" witnesses, who clearly and astutely diagnosed the 63-year-old's condition.

The man's wife also gave evidence, with the judge noting her as "intelligent and truthful", adding that her comments gave a clear indication of her husband's disability and the negative impact it had on his mobility.

Over $1.1 million awarded

The defendant's cross-examination produced limited results, with the courts ultimately awarding the plaintiff $1.19 million. This covered a range of expenses and costs, including:

Noneconomic losses: $192,830 (55 per cent of the maximum)
Past economic loss: $402,605
Past loss of superannuation: $44,286
Future economic loss: $297,877
Future loss of superannuation: $32,766

The man also received significant past and future care expenses, such as domestic assistance, GP visits, medication and equipment.

In addition, a Fox vs Wood component is yet to be decided. This refers to the principle established in a 1981 case that a plaintiff can recover the additional income tax paid for refundable workers' compensation receipts.

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