$375K compensation for heavy lifting injury

This is a summary of a real claim we handled. We have changed our client’s name, for confidentiality reasons.  We wanted to share this article with you to help you understand how the compensation amount is calculated in a personal injury case. After reading this summary, you’ll also understand why personal injury calculators are pretty useless.

 

Our client’s injuries

Our client, Sam, was a fit, 33-year-old worker. He usually worked on construction sites installing heavy safety rails. A co-worker would normally assist him with lifting. 

 

One Friday afternoon, Sam’s employer asked him to return to a worksite, remove a rail that had been previously installed, and reinstall it at a different location.  

 

This time, Sam didn’t have any assistance. As he lifted the heavy rail, he hurt his back. The pain gradually became worse. Soon, Sam started experiencing pain shooting down the legs. Within a few weeks Sam was unable to work, and about 3 months later he needed surgery.  

 

While Sam was off work, his wages and medical bills were covered by WorkCover. But then, WorkCover made him a very small lump sum settlement offer. That’s when Sam came to us for help. 

 

Who was at fault? (Hint: this is a big reason why personal injury calculators are worthless)

One of the reasons personal injury calculators are worthless is because they don’t take into account an important issue: who was at fault? In short, if you make a compensation claim you (or your lawyers) must prove that somebody other than you was at fault. This means that that other person caused your injuries.  

 

We knew from the start that Sam’s injury was not his fault. He should have been given assistance with the heavy lifting aspect of his job. 

 

But we still wanted to identify every person or company who was at fault. This is important because you can get more money if more than one company is at fault.  (More on this later…)

 

Through our investigations we determined that there were two companies to blame. First, the employer, because they should have given assistance to Sam with heavy lifting.  

 

But there was a second company also. The construction site where the incident occurred was controlled by a “principal contractor” company – which was different from the employer. 

 

We learnt that when Sam was sent to work on that Friday, the principal contractor promised to the employer that they (i.e. the principal contractor) would provide some assistance to Sam. They breached that promise. So, they were also liable. 

 

We made a claim against both companies at the same time.

 

We obtained their internal investigation reports. We even forced their managers to provide sworn statutory declarations about telephone discussions they had with each other about who would provide assistance to our client on the day when our client suffered injuries. 

 

As a result of our investigations, we obtained enough evidence to prove that both companies were at fault and caused our client’s injuries. 

 

What was the value of the claim?

We break down the value of the claim into what is known as “heads of damage”. Let’s look at what these are. 

 

Pain and suffering (aka general damages)

 

The amount you get for pain and suffering depends on the severity of your injuries. 

 

In Sam’s case, we obtained a detailed report from a neurosurgeon. His diagnosed a lumbar spine injury with moderate severity.  

 

Most people think that the bulk of the compensation amount is paid for pain and suffering. That’s not the case. In most injury matters, the law caps the amount that can paid be paid for pain and suffering. For example, at the time of Sam’s case, for a moderate lumbar spine injury, the amount was capped at $39,050. 

 

By the way, remember how we said before that it is better to have more than one defendant? Here is why. Let’s say one of the defendants is the employer. The cap on the damages amount applies against the defendant. BUT: it does not apply against the other defendant. In practice, this means you can get more money for pain and suffering. When the defendants work out which of them contributes how much, the non-employer defendant contributes more. (Try and get this information from a personal injury calculator…) 

 

Lost income

 

This is (for most people) the biggest component of the claim. Why? Because you can recover not just what you have lost so far, but also everything that you might lose in the future. 

 

In Sam’s case, here is how we calculated his loss. 

 

After his injury, Sam wasn’t able to return to work for about a year. That meant missing out on wages of $1,100 nett per week. That equated to $57,200. 

 

After the first year, Sam found work but for the first 4 months earned only $400 per week. That’s a loss of $700 per week for about 17 weeks, or $13,090. 

 

Eventually, Sam’s earnings reached about $900 per week, which is still $200 lower than before he suffered injuries. He earned $900 per week for a period of 3 months before the settlement meeting with the insurance company.  So, for that 3 months period, his loss was about $2,400. 

 

Overall, lost wages up to the settlement meeting (also called past economic loss) totalled $72,690. 

 

But what about losses going forward? 

 

At the time of the settlement meeting with the insurance company, Sam was 35. That means he had 31 years before reaching retirement age. 

 

The evidence showed he was still losing about $200 per week. 

 

We calculated income loss going forward at approximately $177,000. 

 

You might wonder how we arrived at that figure. After all, if you take $200 per week for 31 years (i.e. 1,612 weeks), that would result in an award of over $300,000. 

 

However, in the calculus of personal injury law, you have to also calculate certain discounting factors. One reason for this is that you get the benefit of the award now, in one lump sum. In other words, you don’t have to wait 31 years to recover your loss in instalments. You get everything now. That, however, means that the amount you receive is discounted. There are other discounting factors also, but that’s for another day. 

 

Loss of superannuation contributions 

 

In Sam’s case, we calculated that he lost about $7,300 in super contributions up to the settlement meeting. That’s based on 10% employer contributions. 

 

For future super contributions, we calculated with a rate of 11.74%, arriving at a figure of just under $21,000. 

 

Others

 

In addition to the above, Sam incurred some medical expenses – about $2,500. 

 

Surgery, physio and other rehabilitation expenses were paid by WorkCover, but because these are refundable, we claimed them as part of the injury claim. These amounted to about $30,000 

 

Total

 

In total, the compensation amount in a claim was around $375,000.