Common Law Damages Update: Young worker with head injuries awarded $825,000

Maxiom’s Sach Fernando recently obtained a settlement of $825,000 plus costs plus retention of benefits for a 38 year old man with serious head injuries. Taking into account the benefits our client had already received by way of weekly payments, the settlement represents a total damages award of over $1million.


Background:

Our client was a 38 year old Concreter/Labourer. He was working in a bunker at a construction site, directly beneath a suspended hydraulic jack. He was responsible for attaching the jack to cables inside the bunker. His supervisor was working above him at ground level, operating the jack using a control panel. The two workers were attending to the ‘stressing’ of cables inside concrete pylons, prior to the pouring of concrete.

As our client was working, he pushed the jack away from him with his hand, and as he turned back around, he was struck in the head by the jack (“the workplace incident”).

Injuries:
As a result of the workplace incident our client sustained significant personal injuries,
including:

  1. An acquired Traumatic Brain Injury;
  2. Post-Concussion Syndrome;
  3. Post-Traumatic Migraine headaches;
  4. Injuries to the Eyes, such as poor vision, visual disturbance, diplopia, double vision, convergence spasm; and
  5. A range of psychiatric illnesses and disorders, including Severe Depression, and Adjustment Disorder with depression and anxious mood.

Pain and Suffering Consequences:
Our client suffered the following consequences as a result of his injuries:

  1. Chronic migraines;
  2. Phonophobia (the sensitivity to loud noises) where he would suffer from headaches in noisy environments. As a result of this, he would often react angrily when his children laughed, cried or shouted;
  3. Photophobia (sensitivity to light) where direct sunlight or glare would give him headaches, necessitating special tinted glasses;
  4. Convergence spasm which caused one eye to drift in a separate direction from the other;
  5. A requirement for regular Botox treatment from a neurologist;
  6. An impact on his marriage and family life. His wife has become his permanent carer and he is unable to contribute to any household chores;
  7. Weight gain of between 30-40kg since injury due to injuries and immobility;
  8. Walking, he requires a walking stick to get around due to loss of balance;
  9. Poor concentration / memory –Reading, concentrating, memory and focus was poor;
  10. Difficulty and inability to perform a range of recreational pursuits including camping, hunting, fishing, camping and bike riding;
  11. Sleep – It would take a considerably long time to fall sleep due to persistent migraines;
  12. Nightmares and flashbacks to the incident; and
  13. Depression and anxiety with feelings of helplessness, uselessness and suicidal thoughts.

Work Capacity:
The medical evidence was unanimous in finding that our client’s capacity for work was negligible.

Negligence:
We argued that the employer was negligent in failing to mandate the wearing of helmets or hardhats, particularly when workers were working beneath a moving hydraulic jack. The employer was aware that employees were not wearing hardhats in a bunker, particularly during warm weather.

Following our client’s incident, the employer did mandate the use of hardhats whilst working in the bunker and shortened the hydraulic jack.

We further argued that the employer:

  1. Failed to devise, implement and maintain safe systems of work with respect to the hydraulic jack and with working in the bunker below the hydraulic jack;
  2. Failed to provide adequate supervision of our client in the performance of his work duties;
  3. Failed to provide training to our client, particularly with respect to safely operating or safely working with and/or below the hydraulic jack;
  4. Failed to ensure that the hydraulic jack had appropriate safety features, guards and/or warnings systems to prevent any contact with our client whilst he was working below and/or in close proximity to it; and
  5. Did not require any personal protective equipment to be worn by our client to work at the premises and with/below the hydraulic jack, including safety helmets and/or hard hats.

If you have been injured at work, we can help. Please call Sach Fernando on 1800 85 30 85 or 0488 722 444 for an obligation free discussion about your case.