What happened

In 2011, the commercially operated yacht Kookaburra struck a reef during a race in Sydney Harbour. The plaintiff, working as crew, sustained facial and dental injuries requiring extended treatment. Roads and Maritime Services admitted liability for placing a navigation marker incorrectly; the claim against the State was discontinued.

The issues

The assessment concerned treatment expenses, non-economic loss and past and future earning capacity. A key question was whether the plaintiff's reluctance to undertake busy-harbour and night-charter work caused financial loss despite his restored physical capacity to sail.

The court's decision

The Court accepted the plaintiff's and his sister's evidence of incomplete physical recovery and continuing emotional effects. It allowed loss including forgone charter income and ordered the second defendant to pay damages and costs. Separate superannuation loss was rejected because he would have remained self-employed.

Understanding the figures

Historical damages of AUD $337,899.68 comprised $159,500 non-economic loss, $95,350.48 past expenses, $18,855 future expenses, $44,517.20 past earnings loss and $19,677 future earning capacity. Past earnings included $10,217.20 paid by the workers compensation insurer; the judgment does not establish a net receipt after all repayments.

What this case shows

Returning to work does not necessarily eliminate an earning-capacity loss. The Court examined the work actually forgone and its income value, while also considering restored physical ability, seasonal demand and other non-accident factors.

Why another case may differ

Although the injury occurred at work, this judgment assessed damages under the Civil Liability Act 2002 against an admitting third party; it was not a workers compensation benefits determination against the employer. The award included workers compensation payments and is not a verified net receipt after repayments. It did not adjudicate the standard of care for placing navigation markers.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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