If you have suffered injury in Queensland as a fly-in-fly-out (“FIFO”) worker, you may have entitlement to significant compensation – much more than most other workers. But the calculation of your loss is complex and requires specialised expertise in this area. Your loss doesn’t just include past and future income loss (although that can be very large) but it also extends to things like future care needs. We have experience in representing injured FIFO workers and we understand the issues specific to the calculation of common law damages for FIFO workers.

Who pays common law damages in the first place? (It doesn’t come out of your employer’s pocket…)

Many workers think that if they claim common law damages then this will come out of their employer’s pocket. And when you have a good job and good relationships with your supervisors, it can be stressful to think that you have to claim from your employer.

Common law damages are not paid by the employer and here are two critical points to remember.

Firstly, WorkCover Queensland pays common law damages. (In most cases before you make a damages claim, you spend some time “on WorkCover” when your weekly wages are paid. Then WorkCover closes your claim. BUT: when you then make a common law damages claim, again, the damages will be paid by WorkCover Queensland even though they previously closed your file.)

The second point to remember is that often it’s possible to claim damages (at the same time) from more than one entity. For example, on a mine site, there are often different companies who run their operations, with your employer being only one of them. Often, a FIFO workers’ injury is caused by the negligence of not just the employer but also by the negligence of another company. You would then make a claim against both of them, and your damages would be split between WorkCover Queensland and that other company. When we represent injured workers, one of the first things we do is investigate to make sure we claim from every company who may have been responsible for the injuries.

How do you calculate damages for Queensland FIFO workers?

In many cases, the single biggest component of your common law damages is money which you receive for lost earning capacity.Many people think that they don’t have any earnings loss because WorkCover has paid wages while the WorkCover claim was open. This is completely wrong, for the following reasons.

Firstly, you can recover future income losses, which WorkCover otherwise would not pay at all. If you are on $150,000 per year, and can’t work for the next 10 years, that’s a big loss! None of this is paid during the WorkCover claim.

Secondly, even while WorkCover pays your wages, they probably don’t pay all your overtime entitlements, they don’t take into account promotions, pay increases and so forth.

Thirdly, don’t forget about superannuation losses which WorkCover also doesn’t pay in full (and doesn’t pay at all in respect of future income.)

Extras to take into account in your income loss – board, meals

As a FIFO worker, the calculation of your income loss is more complex than for other workers. For example, FIFO workers often receive either free or subsidised meals and accommodation. If you can’t return to work, you lose all this.  Over time, this loss adds up to a sizeable amount!

So how do we take these into account? We add the value of these subsidised allowances to your income. For example, if you earned $1,000 net per week prior to your injury, and you also received free meals and accommodation, we assess the value of these (potentially by expert evidence) and thereby increase the dollar value of your pre-injury earnings.  The result is that for lost income we would not claim $1,000 only, but instead we claim, say $1,250 per week (to account for the subsidised meals and board).

Overseas income and taxation issues

Another area which requires experience in this field is to correctly assess any overseas income. Depending on the arrangements with the employer, sometimes FIFO workers receive their income from overseas – either full or in part. This has a flow on effect on taxation, and also on your Australian superannuation entitlements.

How far into the future can you claim lost income?

Let’s say you get injured at 50. Do you claim loss of earnings to age 67, 70 or for some other period?

If you earn $1,500 net per week and claim until 67, that claim is $904,500. To age 70, it’s $999,000. On the other hand, if you only claim to age 55, you get to $346,500. (The calculations are based on 5% discount tables which is what courts use.)

Of course, every injured worker would claim for as long a period as possible, but what is the correct approach?

Again, this is an area where it’s important that your lawyers have the expertise to identify the issues which a court would likely look at. Let’s take a few examples.

• What are the conditions at your place of employment, including where you are accommodated? There are locations where workers are housed in tents. The pay may be great, but can you convince a judge that even in your late 60s or early 70s, you would have been happy to live in a tent for 2 to 4 weeks at a time? If not, the court will conclude you would have retired from your job somewhat earlier, which then leads to a reduction in your lost earnings.
• What does  the employer’s workforce look like? Is there anyone still working there into their late 60s or early 70s? If they have hundreds of people but the oldest employee on site is still under 60, that’s something a court would take into account.
• How about medical testing requirements? FIFO workers are commonly required to undergo medical testing. Some employers want testing done every 6 months instead of 12 months after you reach 65. Are you confident you would have passed the test?
• What does your individual work history look like? It’s all well and good to allege that you would have worked another 20 years for the same employer, but if you had never before stayed with the same employer for 2 years, then this may be a problem. On the other hand, if you had a lot of different employers, but had continuously worked in FIFO positions, then this would bolster your claim.

Here is how Denes Lawyers can help

If you suffered injury as a FIFO worker, we can help you. Even though our office is in Brisbane, we already represent clients across Queensland (and in in the NT). We travel throughout the State (and in the NT) and we have the resources to maximise the value of your claim. When you contact us, you will be given an urgent phone appointment with Oszkar Denes, our principal solicitor who will then take you through the next steps.

25% Cap on legal costs

In all of our personal injury compensation matters, we act on a  No Win – No Fee basis. What that means is, there’s no upfront cost to you.

In Queensland, most compensation firms will charge you 50% of your compensation amount – the maximum allowed at law. This is very expensive. Our fee is different. We will cap our fee at 25% . Remember also, these are the maximum fees we will charge. If our fee in your claim is less, then we charge the lesser amount.

Before you engage us, we will provide you a written Disclosure Notice and a Client Service Agreement. These documents set out in detail the service we provide, as well as our fees and outlays. Before you sign anything, you can take these documents home with you, and study them with your family. You can take as long as you need, there is never any pressure from us. If anything in these documents doesn’t make sense to you, we can discuss it with you and you are free to ask another lawyer to give you advice.  And remember, no win – no fee agreements come with a 5 day cooling off period for extra peace of mind.