Lessons from Talty v Cotton On Group Services Pty Ltd

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Talty v Cotton On Group Services Pty Ltd is a recent decision from a District Court of Queensland involving a dispute as to the correct quantum of damages following a workplace accident.

The Court ordered a significant award of $235,668.00 compensation to the claimant after sustaining a traumatic brain injury.

Background

Ms Talty (Plaintiff) was employed by Cotton On Group Services Pty Ltd (Defendant) as an inwards team supervisor in a Cotton On warehouse.

On the 11th of April 2012, Ms Talty was injured when she was struck on the side of her head by a pallet weighing approximately 90 to 100 kg which fell from a height of 6 meters. Ms Talty’s injuries consisted of a traumatic brain injury, a fractured ankle, knee and shoulder injuries and psychological injuries.

Following the accident, Ms Talty returned as an employee of the defendant on a gradual return to work program. She experienced continuing difficulties with concentration and mental fatigue. She later resigned and gained employment elsewhere. Ms Talty sought a claim of damages for the injuries she sustained as a result of the accident.

Whilst the Defendant admitted to liability and negligence, they disputed the extent to which Ms Talty’s injuries affected her capacity to obtain later employment.

The Court was required to determine what quantum of damages Ms Talty was entitled to. In doing this the Court considered the nature, extent and consequences of the injuries that Ms Talty had suffered.

Findings

Pursuant to Schedule 9 of the Workers Compensation Rehabilitation Regulation 2003, the Court was required to make an assessment of general damages by assigning an ‘Injury Scale Value’ (ISV) to Ms Talty’s injuries.

His Honour Judge Butler SC determined that Ms Talty’s injuries constituted an ISV of 25. His Honour found that Ms Talty’s injuries constituted a moderate brain injury as her injuries were permanent and continuous.

Employability following a workplace accident.

His Honour spent considerable time dealing with the issue of future employability for Ms Talty.

The defendant reasoned this by arguing that Ms Talty’s resignation was voluntary and that her injuries did not result in an inability to perform her work at Cotton On.  

Additionally, Ms Talty had gained further employment with no loss of income following her resignation at Cotton On.  The defendant argued that in light of the fact that she continued to work at her previous level and was remunerated at that level; the assessment of damages at $120,000 – $160,000 was justified.

His Honour rejected these arguments and held that Ms Talty injuries rendered her less employable than she had been before the accident. Whilst Ms Talty did not cite her injury as the reason for her resignation, the Court’s assessment found that her brain injury affected her work performance and indirectly influenced her decision to resign.

Further the brain injury had a permanent impact on Ms Talty’s memory and cognitive function which would have been factors in her resignation. Ms Talty held a supervisory position working for the defendant and it is unlikely that an employer on the open market would now employ her in such a role in light of her injuries. This represented a devaluation of her potential to earn income.

Ms Talty was aspiring to a career in nursing.  Whilst her year 12 results were very poor, the evidence suggested that such results were not reflective of her adult capacity. It is likely that but for her sustained injuries, Ms Talty would have been able to achieve a Certificate IV in nursing. Thus her injuries reduced her ability to further her prospects through education.

The Court noted that there was a 50% chance that Ms Talty would not have reached the level of employment as a nurse and reduced the amount accordingly. Thus the court took into account Ms Talty’s current income figures against the possibility of gaining employment as a nurse.

Break down of the damages awarded:

  • Pain, suffering and loss of amenities of life $42,350.00
  • Past economic loss $17,735.00
  • Interests $282.00
  • Super $465.00
  • Future loss of earning capacity $220,000.00
  • Future loss of superannuation contributions $25,300.00
  • Special damages $20,529.00
  • Interests $92.00
  • Minus WorkCover Refund $91,081.12

Summary

His Honour formed the view that Ms Talty’s future employability greatly affected his determination of the seriousness of the disability and the respective award of damages relevant to adequately compensate for the loss. This is particularly the case for brain injuries where memory and cognitive difficulties are endured.

The case acknowledges that the direction of the claimant’s future employment status is significantly impacted by the presence of a permanent brain injury. This case demonstrates the Court’s willingness to increase the quantum of damages beyond the ISV’s assessment where brain injuries impact upon a claimant’s employment prospects.