Court awards $400,000 for pain and suffering damages

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Coughlan v United Precast (Vic) Pty Ltd [2020] VSC 671

By Stuart Eustice, Partner, Holly White, Lawyer and Elly Randall, Law Graduate

A 39-year-old plaintiff has successfully sued his employer in negligence and been awarded $630,000 in damages by the Supreme Court of Victoria after he was struck in the face by a heavy steel chain working as a rigger. In the incident he suffered severe face and brain injuries.

Factual Background

The plaintiff, Michael Coughlan, was 34 years old when he suffered these injuries.

The plaintiff was rendered unconscious for several minutes, suffered from a broken nose, cheek and jaw, and required cranial surgery for the insertion of plates into the frontal lobe of his brain. This rendered the plaintiff virtually blind in his left eye, with him having lost sensation on the left side of his forehead and cheek, and without a sense of smell or taste, along with a degree of memory impairment and mood effects.

The plaintiff returned to work four months after the injury, but ultimately no longer felt comfortable performing his previous duties and was offered new employment in a construction company. In his new employment, the plaintiff was earning a higher salary than in his previous employment as a rigger and, at the time of the Court’s decision, had received several increases in pay.

The Supreme Court of Victoria was asked to assess what was a fair and reasonable sum to compensate the plaintiff for both his pain and suffering/loss of enjoyment of life and for any future pecuniary loss (if any). The parties had already agreed on the amount of $30,000 as damages for past pecuniary loss.

The effects of the plaintiff’s injuries were examined in considerable detail, with the Court placing particular focus on the surgical and medical procedures, period of recovery and convalescence involving significant pain, distress and discomfort to the plaintiff. The Court also gave significant consideration to the construction industry downturn in the wake of the COVID-19 pandemic, where there is now great uncertainty for the plaintiff’s future employment. The employer argued that uncertainty was a concern that the plaintiff shared with every employee in the construction industry, regardless of the plaintiff’s impairments as a result of his injury.

Despite this, Macaulay J noted that the plaintiff remained able to “enjoy a substantially rewarding and balanced lifestyle, mostly free from pain”,[1] ultimately awarding $400,0000 for pain and suffering, and loss of enjoyment of life.

In respect to future pecuniary loss, the court followed the decision in Cullen v Trappell,[2] where, in assessing loss of incoming earning capacity, the High Court held it is necessary to value a capital asset of the injured person, namely, their capacity to earn money, the onus of which lies on the plaintiff to establish. Although the plaintiff had established some diminution of that capital asset as a result of his injury, the court was unable to say with any degree of confidence as to whether that diminution exposed the plaintiff to a significant risk of loss of income in the future, or otherwise.[3] The court held that it was not useful to assign a percentage figure to the plaintiff’s current discounted weekly earnings as a means of estimating his loss, but rather, that it was more appropriate for him to be awarded a “reasonable and moderate sum for the mere chance or risk of future unemployment or less remunerative employment”[4]. The most appropriate sum in compensation for that mere chance or risk was held to be $200,000.

Conclusion

The decision importantly highlights that an improvement in a plaintiff’s financial position post-injury will not necessarily deprive them of an assessment for future loss of earnings. The mere chance of such risk needs be assessed.

As regards pain and suffering, the statutory maximum is $555,350[5], of which this award represents 72% of a worst case scenario.

[1] Coughlan v Unite Precast (Vic) Pty Ltd [2020] VSC 671, 50 (Macaulay J).

[2] (1980) 146 CLR 1, 7-8 (Barwick CJ).

[3] Coughlan v Unite Precast (Vic) Pty Ltd [2020] VSC 671, 92 (Macaulay J).

[4] per Farlow [1963] VR 954

[5] S.340 Workplace Injury Rehabilitation and Compensation Act 2013

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TPD: Unreasonable Insurer Decision: Folmer v VicSuper Pty Ltd & Anor [2018] NSWSC 1503