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What is a proper assessment of injury? Compensation case note Foster v Carter [2017} QSC 135

BACKGROUND

Ms Karen Foster was a bus driver who suffered significant injuries when the defendant lost control of his car and a drove into her bus while she was on shift. Her injuries were typical of “whiplash” – neck and back pain that restricted her range of movement and impacted her daily life, as well as secondary psychological injuries.

Ms Foster could not work as a bus driver following the accident, and claimed to rely on her house mate for a large amount of household duties. She was nearly fifty at the time of the accident, had been employed as a bus driver since 2009 and had not worked in an office since 2000. She described her computer skills as poor and her capacity to do everyday tasks as low.

There was however a discrepancy between Ms Foster’s description of her capabilities and the testimony of the medical professionals who assessed her – some assessed her at 0% impairment and others higher. There were also disparate testimonies regarding the amount of care she required from her housemates.

LEGAL ISSUES

The court had three main issues to determine:

  • What was the true extent of the plaintiff’s injuries?
  • Whether the injuries were covered by the Civil Liability Act 2003 (QLD) or the Workers’ Compensation and Rehabilitation Act 2003 (QLD)?
  • How much to award the Plaintiff for loss of future earning capacity?

Although the court had to consider many varied reports regarding the plaintiff’s injuries, it determined that a 6% cervical spine injury, 0% lumbar spine injury and 6% psychological impairment were an appropriate assessment of the plaintiff’s injuries.

Despite the fact that the Plaintiff was driving a bus in the course of her employment when the accident occurred, the court found that there was no evidence of “the exigencies of the employment of the worker by the employer” – in other words, despite the location of the accident, it had nothing to do with the obligation of the employer to the plaintiff, and therefore the damages award rates stipulated in the Civil Liability Act 2003 (QLD) applied.

Finally, the court determined that, although the Plaintiff claimed she had wished to remain employed as a bus driver until the retirement age of 70, this was not likely considering the evidence provided of the plaintiff’s pre existing medical conditions. It determined that economic loss could be awarded until the age of 62 in this case. It also determined that while the plaintiff’s ability to work was diminished, it was not exhausted, and she could in fact obtain gainful employment in the future.

The total damages awarded were $539,764.92.

LESSONS LEARNED

This is an example of how courts approach cases were there is a large amount of factual discrepancy. Many injured persons feel that medical professionals do not believe they are injured, and can be discouraged if they receive conflicting medical reports.

This case also illustrates that even where an injury clearly occurs in the workplace, the court looks for a connection to the liability of the employer when assessing the application of the Workers’ Compensation and Rehabilitation Act 2003 (QLD).

This article was written by Michaela Vaughn and Natasha Duff.