Koven v Hail Creek Coal Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Koven v Hail Creek Coal Pty Ltd  [2011] QSC 051

PARTIES:

Paul Ashley Koven

Plaintiff

v

Hail Creek Coal Pty Ltd (ACN 080 002 008)

Defendant

FILE NO/S:

SC 32 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

25 March 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

15 February 2011 & 21 March 2011.

JUDGE:

McMeekin J

ORDER:

Judgment for the Plaintiff in the sum of $866,486.58

CATCHWORDS:

DAMAGES — Measure and remoteness of damages in actions for tort — Measure of damages — Personal injuries — General principles — Future Economic Loss – Future Paid Services - Where plaintiff suffered injury to left ankle where liability admitted — Where calculation of future loss of earnings affected by the vicissitudes of the mining industry – Prospective earnings as a Dragline Operator – Residual Earning Capacity -  Whether Plaintiff would have continued working as a dragline operator beyond age sixty – Whether certain services claimed for damages were paid or gratuitous.

Superannuation Guarantee (Administration) Act 1992 (Cth)

Workers Compensation and  Rehabilitation Act 2003 (Qld)

Anodising & Aluminium Finishers v Coleman [1999] QCA 467; [2002] 1 Qd R 141

Bugge v REB Engineering Pty Ltd [1999] 2 Qd R 227

Craddock v Anglo Coral (Moranbah North Management) Pty Ltd [2010] QSC 133

CSR v Eddy (2005) 226 CLR 1

Duong v Versacold Logistics Ltd and Ors [2010] QSC 466

Foster & Anor v Cameron [2010] QSC 372; [2011] QCA 48

Friend v Rye [2000] QSC 502

Griffiths v Kerkemeyer (1977) 139 CLR 161

Holland v Jones (1917) 23 CLR 149

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Ollier v Magnetic Island Country Club Incorporated & Shanahan [2003] QSC 263

Thomas v O’Shea (1989) ATR 80-251

Townsend v BBC Hardware Ltd [2003] QSC 015

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

COUNSEL:

C Heyworth-Smith and B Hartigan for the Plaintiff

R Treston for the Defendant

SOLICITORS:

Macrossan & Amiet Solicitors for the Plaintiff

Sparke Helmore Lawyers for the Defendant

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.

1. 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.

1. 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.

The Injury and its Aftermath

1. 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…