Thuong v Liu[2017] QDC 196

DISTRICT COURT OF QUEENSLAND

1. [1]
   The Plaintiff claims damages for personal injuries arising out of a motor accident on 22 July 2015 when his Subaru Liberty sedan came into collision with the First Defendant’s Hyundai iMax Wagon on Padstow Road, Eight Mile Plains (‘the Incident’). At the time of the Incident, the vehicle was insured by the Second Defendant and was being driven by the First Defendant.

2. [2]
   Liability is not in issue, and it is also common ground that at the relevant time the Plaintiff worked as a retail assistant at a BWS Liquor Store in Richlands, Queensland. Quantum is the sole issue. The extent of the Plaintiff’s injuries and the extent of his recoverable damages are in dispute.

Plaintiff’s Post-accident Medical Treatment

General practitioner – Dr Kang

3. [3]
   On 29 July 2015, seven days after the Incident, the Plaintiff consulted Dr James Kang, General Practitioner, who recorded in his notes^[1]that the Plaintiff, born on 21 July 1986, complained of gradual onset neck and shoulder pain resulting from a car accident which he described a “whiplash injury.”  Dr Kang prescribed pain killing medication Celebrex 200mg capsule daily at 1.00pm and referred him to physiotherapy.  He suggested a review one month later on 29 August 2015.^[2]It is common ground that the Plaintiff did not attend the further review because in his words, he did not think it was necessary.^[3]Dr Kang’s clinical notes reveal that the Plaintiff’s symptoms were of a gradual onset and indicate that the Plaintiff reported he was not suffering from any pre-existing condition.^[4]

Physiotherapy

4. [4]
   The Plaintiff attended 34 sessions of physiotherapy with Mr Stephen Chai between 30 July 2015 and 8 June 2016.^[5]Mr Chai’s notes of those attendances where the Plaintiff self-reported on his present condition, but excluding Mr Chai’s notes of treatment, are as follows:

Evidence of Mr Chai

5. [5]
   In evidence,^[6]Mr Chai said that the Plaintiff displayed objective signs of injury through a limited range of motions in his lower back.  He said his mobility in the lumbar spine improved, but he had acute aggravations with tightness and joint stiffness which condition was 'a bit on and off’ towards the end of the treatment.  He said “(the Plaintiff) did, like, have a muscle tightness, muscle guarding, similar things…”.^[7]

6. [6]
   Mr Chai also gave evidence that the Plaintiff had a cervical spine injury with ongoing headaches. As to the 11 month period he treated the Plaintiff, Mr Chai said that was a standard period of time to treat someone for a whiplash injury but in the Plaintiff’s case, it was not so straightforward because he was working at a bottle shop and there were instances where his injuries were subject to aggravation.^[8]The result was, Mr Chai said, that even at the end of his treatment he did not think that the Plaintiff had fully recovered from the injuries.^[9]The Defendant submits that any opinion of Mr Chai sought to be relied upon by the Plaintiff is weakened by the Plaintiff’s admission that his then girlfriend accompanied him to the physiotherapy consultations. I reject any such submission. The Plaintiff explained that this was done because the physiotherapist staff were Korean and the then girlfriend could speak Korean.^[10]

Expert Medical Evidence

7. [7]
   The Plaintiff was examined by three doctors; Dr Scott Campbell, Neurosurgeon, and Dr Malcom Wallace, orthopaedic surgeon, on his own behalf and by Dr Prue FitzPatrick, consultant orthopaedic surgeon, on behalf of the Defendants. All produced medical reports and gave evidence.

Dr Scott Campbell’s Report – 19 July 2016

8. [8]
   At the time of his examination by Dr Campbell on 19 July 2016, the Plaintiff complained of neck pain and stiffness occurring daily, being mild to moderate in nature with occasional severe exacerbations. The neck pain was located centrally without radiation and was aggravated by:-

1. (a)
   sitting in a hard chair;

2. (b)
   computer work;

3. (c)
   reading;

4. (d)
   driving long distances;

5. (e)
   checking the blind spot whilst driving; and

6. (f)
   looking down to perform tasks on his mobile phone.

9. [9]
   Dr Campbell recorded that the Plaintiff was a cashier and exercised caution at work with heavy lifting and bending. The Plaintiff told Dr Campbell that he had not taken time off work as he was unable to afford to do so. Later, the Plaintiff told Dr Campbell that he had been restricted in his cycling activities as a result of his spinal axis pain and denied any history of neck pain prior to the Incident.

10. [10]
    Dr Campbell’s examination of the cervical spine revealed a 20 to 30 per cent decrease in the range of movements in all directions with asymmetry of movements and pain at the extremity of movement. There was central tenderness and guarding. As to the lumbar spine, examination revealed a full range of movements with tenderness and guarding to the left movement.

11. [11]
    Dr Campbell’s diagnosis of the Plaintiff’s injuries from the Incident as reported by the Plaintiff was:-

1. (a)
   whiplash injury of the cervical spine with no evidence in his contemporaneous medical notes to support an associated lower back injury;

2. (b)
   treatment to date, namely, the Celebrex prescription, physiotherapy, heat packs and electrical stimulation therapy had been appropriate. Given the difficulties in managing chronic whiplash-type symptoms rest, pain killers and modification of activities was advised;

3. (c)
   the Plaintiff’s condition had reached its maximum medical improvement, with further future recovery unlikely so that his current symptoms and restrictions were likely to persist indefinitely;

4. (d)
   there was no past history of neck pain contributing to the current impairment;

5. (e)
   having regard to his daily central neck pain and stiffness, resulting from a restricted range of movement of the cervical spine with asymmetry of movements and central tenderness and guarding, the Plaintiff was suffering a six per cent Whole Person Impairment in accordance with the AMA Guides 5^th Edition^[11](‘AMA Guide’), DRE Category II; and

6. (f)
   whilst the Plaintiff was currently performing his duties as a cashier, he exercises caution with heavy lifting and bending, resulting in decreased efficiency at work, but tolerates the increased neck pain occurring during a physically demanding work shift.^[12]

Addendum to Dr Campbell’s 19 July 2016 Report – 15 May 2017

12. [12]
    Some three days prior to the trial commencing, Dr Campbell expanded on his 19 July 2016 report in a telephone conversation, presumably with the Plaintiff’s legal representative, and a copy of the memorandum was admitted into evidence.^[13]In that conversation, Dr Campbell reported the following:

1. (a)
   despite the initial finding in his report dated 19 July 2016 that there was no direct causal link between the subject accident and the lower back symptoms, having now considered the physiotherapy clinical records above referred to^[14]and particularly the entries of 30 July, 31 July and 4 August, he now considered there was a causal connection between the subject accident and the Plaintiff’s lower back complaints detailed at the time of his examination.  In Mr Campbell’s opinion, he either did not have those physiotherapy notes before him at the time of his report or did have them and had missed their references to lower back pain;^[15]

2. (b)
   having regard to this revised opinion, he now considered that his categorisation of the Plaintiff’s lower back injury as a DRE Category I Impairment should be changed to a 2 per cent Whole Person Impairment under Chapter 18 of the AMA Guide; and

3. (c)
   static posturing and computer work would be difficult for the Plaintiff, particularly having regard to his cervical spine symptoms, but also having regard to his lumbar spine symptoms.  The extent of which those activities need to be moderated depended on the Plaintiff’s pain threshold amongst other things. 

4. (d)
   The Plaintiff’s condition would make him less efficient and needing to take more breaks from that type of activity.  That was particularly so in circumstances where the Plaintiff, as a second occupation, was endeavouring to develop and distribute a website for the Vietnamese community in South-East Queensland.

Dr Wallace’s Report - 17 August 2016

13. [13]
    Dr Wallace examined the Plaintiff on 15 August 2016, approximately one month after that of Dr Campbell (19 July 2016) and some three weeks after that of Dr FitzPatrick (22 July 2016). His report is dated 17 August 2016.^[16]

14. [14]
    Dr Wallace records that the Plaintiff told him that he had been involved in a collision on 22 July 2015 with significant impact, causing him to be thrown around inside the vehicle. Initially, he had no neck or back pain but over the next one or two days, he developed increasing neck and back pain and consulted Dr Kang. He said he did not have any time off work.^[17]

15. [15]
    The Plaintiff reported difficulty with any heavy lifting required at work as well as prolonged standing or any overhead work. He reported that he was now having difficulty running any distance. He reported no significant adverse effect on his other activities, daily living or personal care but reported sustained postures of his cervical spine such as looking at a computer screen for any length of time would aggravate his neck, causing him to regularly get up, stretch and move around.^[18]

16. [16]
    On examination of the Plaintiff, Dr Wallace found:-

1. (a)
   some tenderness in the cervical spine in the left para-cervical musculature and left trapezius;

2. (b)
   normal forward flexion and extension and lateral flexion and rotation to the left was of normal range.  Lateral rotation to the right was restricted compared to that of the left; and

3. (c)
   examination of the lumbar spine revealed tenderness in the left para-vertebral musculature over the mid lumbar spine.  He had normal forward flexion and extension and lateral flexion to the left and right were symmetrical. ^[19]

17. [17]
    Dr Wallace concluded the Plaintiff had sustained an acceleration/deceleration injury to the cervical and lumbar spine in the reported accident mechanism of which injury imparted a musculoligamentous sprain to the soft tissue supporting structures on the cervical and lumbar spine.^[20]Medical imaging was not necessary.  Consistent with the conclusion of Dr Campbell, Dr Wallace said the Plaintiff had reached maximum medical improvement and should continue with simple analgesia, local heat, maintenance of core stability and activity modification to accommodate his symptoms.  Given the difficulty of the regular bending and lifting required of him at work, Dr Wallace was of the view that the Plaintiff would be more suited to supervisory or sedentary work.  In the result, Dr Wallace concluded that the Plaintiff had a DRE II Category Impairment of the cervical spine in terms of Table 15.5 of the AMA Guide and a 5 per cent Whole Person Impairment.  As to the lumbar spine, he concluded the Plaintiff had a DRE I category impairment according to Table 15.3 of the AMA Guide and he attributed a 3 per cent Whole Person Impairment under Chapter 18 of the AMA Guide.

Addendum to Dr Wallace’s Report – 16 May 2017

18. [18]
    As was the case with Dr Campbell, Dr Wallace also engaged in a further conversation with the Plaintiff’s legal representative on 16 May 2017, two days prior to the trial. This conversation was reduced to writing^[21]and the following is recorded:-

1. (a)
   his examination findings that lateral rotation of the cervical spine to the right was restricted compared to the left complied with DRE II Category Asymmetric Loss of Range of Motion within Table 15.5 of AMA Guide relating to the Evaluation of Permanent Impairment;

2. (b)
   in terms of the Plaintiff’s endeavour of developing and distributing a website for the Vietnamese community in South-East Queensland, Dr Wallace said:

1. (i)
   static posturing and computer work would be difficult for the Plaintiff, particularly having regard to his cervical spine symptoms;

2. (ii)
   he would need to moderate those activities commensurate with the increase in symptoms;

3. (iii)
   it may also affect his concentration because of the distracting nature of pain; and

4. (iv)
   it would be likely to make him less efficient, requiring him to take more breaks from that type of activity.

The Defendants’ Medical Expert - Dr Prue FitzPatrick – Report 28 July 2016

19. [19]
    Dr FitzPatrick’s examination of the Plaintiff was on 22 July 2016, three days after that of Dr Campbell (19 July) and some three weeks prior to that of Dr Wallace (15 August). On that day the Plaintiff reported details of the subject Incident, stating that he was knocked out and that the airbags did not deploy. On the day of the Incident he had a headache and some three or four days later, started to develop soreness in his neck for which he consulted Dr Kang. At the time of her examination of the Plaintiff, his current symptoms were these:-

1. (a)
   headaches, occurring about twice a week, affecting the back of his neck and lasting about 10 minutes;

2. (b)
   lower back pain which was actually more intrusive than his left sided neck pain and which comes and goes, bought on by certain activities and aggravated by the following:

1. (i)
   sitting and leaning forwards for more than 30 minutes;

2. (ii)
   running for more than 30 minutes;

3. (iii)
   lifting cartons at work; and

4. (iv)
   doing the dishes.

The pain can be eased by lying down and resting; and

3. (c)
   the Plaintiff’s rating of the pain was between 2/10 and 8/10.  It does not radiate and was not associated with pins and needles, numbness or alteration in the bowel or bladder habit;

4. (d)
   constant left-sided neck pain aggravated by:-

1. (i)
   turning his head to the left;

2. (ii)
   looking down for a long time;

3. (iii)
   running; and

4. (iv)
   reading.

It is eased by looking up and lying down. 

5. (e)
   That pain he rates between 2/10 and 7/10.  Again, it does not radiate and is not associated with pins and needles or numbness.

20. [20]
    The Plaintiff reported that his symptoms were no better, despite the passage of time and extent of physiotherapy. As to his work, the Plaintiff reported he was still employed in the same position by BWS, working normal duties between 20 and 60 hours per week. He reported completing a website providing classified ads to the Vietnamese community, lived in a share house and was able to wash, dress and feed himself. He could only clean for about 10 minutes before his symptoms were aggravated and he would not try gardening.^[22]

21. [21]
    The Plaintiff reported that, prior to the Incident he enjoyed running every day for approximately one hour but now runs only about three times a week and not as intensively. He still enjoys cycling, but again less intensively. He said he used to box for fun but now only does half of what he used to do. He described his sleep in general as poor, which he attributed to stress.

22. [22]
    During examination, Dr FitzPatrick said the Plaintiff reported no present pain in the cervical spine, however when present, was localised to the left trapezial muscle. There was no palpable spasm or tenderness in this muscle on the day of examination. The range of movement in his cervical spine was assessed with an inclinometer, which Dr FitzPatrick said was well-preserved. Forward flexion was to 57 degrees, extension to 53 degrees, lateral flexion to 26 degrees bilaterally and rotation to 70 degrees bilaterally. Reflexes were brisk and equal in biceps, triceps and brachioradialis jerks, with sensation in tact in the upper limbs.

23. [23]
    As to the lumbar spine, examination revealed that the Plaintiff localised his pain to the left L4/5 with no palpable para-spinal spasm and no scoliosis. Forward flexion was such that his fingertips could touch his toes, extension was to ten degrees, lateral flexion to 45 degrees bilaterally and sensation was intact in the lower limbs. Straight leg raising was to 70 degrees with a negative sciatic stretch and reflexes were brisk and equal in the knee and ankle jerks. He had a normal gait and was able to heel walk and toe walk.

24. [24]
    Dr FitzPatrick concluded:

1. (a)
   diagnosis was musculoligamentous injuries to the cervical and lumbar spine which had been treated extensively with physiotherapy which was found not to be terribly helpful;

2. (b)
   the Plaintiff had a well-preserved range of movement in the cervical spine and lumbar spine and no evidence of neurological deficit in the upper limbs or lower limbs; and

3. (c)
   the musculoligamentous injuries to the cervical and lumbar spine had reached maximum medical improvement and permanent impairment can be assessed.  Both injuries fall into the DRE Category I with 0 per cent permanent impairment rating. ^[23]

Addendum to Dr FitzPatrick’s report – 17 May 2017

25. [25]
    On 17 May 2017, the day before the trial, Dr FitzPatrick had the benefit of reading the report of Dr Campbell and the addendum to his report and the report of Dr Wallace and the addendum to his report, in relation to which she documented her views in a diary note received in evidence.^[24]She made the following observations:

Dr Campbell’s Report

1. (a)
   it was unclear whether Dr Campbell examined the Plaintiff with an inclinometer;

2. (b)
   Dr Campbell’s recordings that his examination of the cervical spine revealed “pain at the extremity of movement.”   There was central tenderness and guarding and “a non-specific finding given that pain and tenderness are subjective findings”;

3. (c)
   she disagreed with Dr Campbell’s DRE Category II Impairment finding;

4. (d)
   Dr Campbell initially reported a full range of movement to the lumbar spine, but did not consider the Plaintiff had sustained a lower back injury, noting that subsequently Dr Campbell was prepared to give the Plaintiff a 2 per cent Whole of Person Impairment under Chapter 18 of the AMA Guides.  She noted that there should not be an uplift for pain in accordance with Chapter 18 if there is a DRE Category I Impairment as Dr Campbell initially found in his report.

Dr Wallace’s Report

5. (e)
   as with Dr Campbell, it is unclear whether Dr Wallace used an inclinometer;

6. (f)
   she disagrees with Dr Wallace’s opinion of a DRE Category II Impairment of the cervical spine.  The findings supporting that opinion being non-specific;

7. (g)
   Dr Wallace appropriately classified the Plaintiff as DRE Category 1 with respect to the lumbar spine; and

8. (h)
   Dr Wallace’s conclusion as to the 3 per cent Whole Person Impairment based on subjective reporting of pain to lumbar spine and using Chapter 18 of the AMA Guides, is rejected because on a proper interpretation of those guides, there should not be an uplift for pain in accordance with Chapter 18 if there is a DRE Category I Impairment as Dr Wallace found.

Plaintiff’s Evidence Regarding Injuries

26. [26]
    The Defendant, correctly in my view, submits that a significant aspect of the Plaintiff’s case falls upon the Court’s acceptance of the Plaintiff’s complaints of ongoing pain as result of his injury. Ultimately, it is necessary for the Plaintiff to show that such pain interference will affect his ability to work so as to be productive of economic loss. In this respect, the Defendant is placed in a somewhat difficult position. In Bell v Mastermyne Pty Ltd, McMeekin J observed,

‘The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting – of his or her symptoms; of their impact on the plaintiff’s life; of pre-existing problems…These are all difficult issues for a defendant to thoroughly investigate and test. In truth no one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities.’^[25]

27. [27]
    It is the Defendant’s position that the Plaintiff’s evidence was inconsistent and unreliable. Mr Lynch, on the other hand, asserts that the Plaintiff was a very credible witness who did not embellish or exaggerate his symptoms.

28. [28]
    The Plaintiff gave evidence^[26]that when he woke up the morning after the accident he noticed pains in his lower back and neck and thought they would go away.  This pain continued, so the Plaintiff attended Dr Kang on 29 July, who prescribed pain killers and physiotherapy.  As to the physiotherapy treatment he received, the Plaintiff said it relieved some of the headaches, but did little to relieve his other symptoms.  The Plaintiff thought that it would take time for the symptoms to subside, and that is why persisting with the physiotherapy for 11 months.

29. [29]
    As to his current symptoms, the Plaintiff said if he remains seated for too long he notices lower back pain and neck pain. The pain was aggravated by sitting on a chair at a desk for over 40 minutes. Prior to the accident, he ran every day or every second day for about an hour and a half, but since the accident he said he can only run for half an hour before he notices a slight pain in his lower back which he said he knew would get worse if he kept running. He accordingly starts walking at that point. Another leisure activity he enjoyed prior to the accident was mountain biking and cycling and has had to cut out mountain biking after attempting it and finding that the maximum time he could do it for was half an hour.

30. [30]
    As to his current neck pain symptoms, he said that if he bent his neck down for extended long periods such as when using a laptop or his phone, he would notice a slight pain so that he would have to then stop, take a walk and a break and look upwards. The only medication he is presently on is the occasional Panadol.

Dr Fitzpatrick’s evidence at trial

31. [31]
    The Defendant’s rely on the opinion of Dr Fitzpatrick who accepted that the Plaintiff had suffered a soft-tissue injury to the cervical spine and lumbar spine but classified the injury into DRE Category I with 0% whole person impairment rating. Simply put, it is the Defendant’s submission that the injury has left no lasting impairment or disability upon the Plaintiff.

32. [32]
    In cross-examination by Mr Lynch, Dr FitzPatrick acknowledged that the relevant AMA Guides assessed impairment as opposed to disability. In that regard, the AMA Guides define impairment as: “a loss, loss or use, or derangement of any body part, organ system or organ function.”^[27]Disability is defined as: “an alteration of an individual’s capacity to meet personal, social or occupational demands or statutory or regulatory requirements because of an impairment.”^[28]

33. [33]
    Dr FitzPatrick agreed that there is no way for a doctor to measure pain accurately and that is why the patient is asked to give a score out of 10. She agreed that pain had a capacity to interfere with one’s ability to concentrate or focus on a task. As to ranges of motion of the cervical spine, she was of the opinion that in the absence of a spasm, the range of motion stays relatively constant and would not vary on a daily basis.

34. [34]
    As to the use of an inclinometer, the following exchange is of significance:-

“Q: Would you agree that a decreased range of motion can be observed by an experienced clinician without the use of such a device?

A: Yes, it can be, but just on that point, when you’re doing one of these IME’s, the reason you use an inclinometer is not because you can’t assess range of motion.  It’s more so that you can document in your report very thoroughly what the ranges are.  So that it’s supposed to be so that another clinician reading your report would be able to come to exactly the same conclusions using the information that you’ve provided.

Q: Or indeed a different conclusion?

A:  Sorry, I beg your pardon, or a different conclusion, yes.  That’s right.

Q: You wouldn’t, for example, use such a device in clinical practice?

A: No.

Q: Because you’re an experienced clinician and you’re able to ascertain, by the examination of a patient, whether or not they’ve got reduced range of motion?

A: Yes.”^[29]

Evidence of Dr Campbell at trial

35. [35]
    In cross-examination, Dr Campbell explained in relation to the treatment of the Plaintiff’s lower back injury that he did not give the Plaintiff’s complaint of that injury weight because he did not initially draw a causal connection with the subject Incident. Later, as is evidenced in the addendum to his report,^[30]he reviewed and altered his opinion regarding the Plaintiff’s lower back injury.  As to the physiotherapist’s notes, he concedes that he probably failed to pick up the entries of 30 July, 31 July and 4 August 2015 dealing with the lower back pain, which record Mr Chai clearly stated that the Plaintiff was suffering from a back injury. Dr Campbell said that had he been aware of such complaints relating to a lower back injury, he would have drawn a causal connection to the subject Incident.^[31]

36. [36]
    As to his examination of the Plaintiff’s cervical spine and the fact he did not use an inclinometer as did Dr FitzPatrick, Dr Campbell said using such a device does not add to the impairment assessment and he regarded the use of an inclinometer as a complete waste of time because he did not think that such a device would reliably measure anything in the spine. He made the point that the author of that section of the AMA Guides dealing with the use of an inclinometer was not a spinal surgeon.

37. [37]
    As to the absence of any warm up exercises to prior to his examination of the Plaintiff, he considered that to have the Plaintiff perform repetitions of extension, flexion, lateral bending and the rotation exercises would probably make more patients worse than better by the time they left the examination.^[32]

38. [38]
    Dr Campbell was also questioned in relation to Dr FitzPatrick’s findings following examination of the Plaintiff’s cervical spine, namely his forward flexion to 57 degrees, extension to 53 degrees, lateral flexion to 26 degrees bilaterally and rotation to 70 degrees bilaterally. It was put to him that he had not recorded any flexion, either forward or lateral, or any rotation^[33]to which he responded that he had found a decreased range of movement of 20 per cent to 30 per cent in all directions, which included flexion, extension and lateral rotation to both left and right.

39. [39]
    Returning to Dr Campbell’s revised opinion of the Plaintiff’s lumbar spine pain,^[34]being a two per cent Whole Person Impairment pursuant to Chapter 18 of the AMA Guides, it was put to Dr Campbell that Chapter 18 was not available to be used to rate pain related impairment for any condition that can be adequately rated under, relevantly, Chapter 15.  His response was Chapter 18 can be used if a patient presents with a verifiable medical condition and has persistent pain. Dr Campbell gave evidence that he determined that the Plaintiff experienced pain in the context of a verifiable medical condition of the lumbar spine and thus fell for assessment under Chapter 18 of the AMA Guides.^[35]

Evidence of Dr Wallace at trial

40. [40]
    In cross-examination, Dr Wallace was taken to page 4 of his report^[36]under the heading “Disability” where he said:-

“(The Plaintiff) states he now has difficulty running any distance.  (He) states that he can drive a motor vehicle without significant impact and he does not have a significant adverse effect on his other activities of daily living or personal care.”

41. [41]
    Dr Wallace said that whereas the Plaintiff had told him that standing and running was a problem, he did not ascertain whether the Plaintiff continued to participate in running for fitness. When asked if his views would change if the Plaintiff was, post-accident, running three to four times a week for no more than half an hour, he said that it may. He went on to say that the Plaintiff had told him he had difficulty running and that his notes did not say that he could not run at all. He further said that he had not made a note of how long the Plaintiff was running before the accident.^[37]

42. [42]
    As to the use of an inclinometer to measure the cervical spine pain, Dr Wallace accepted that he had not used an inclinometer. Despite the recommendation in the AMA Guides to use an inclinometer, he trusted his physical examination. As to any warm up exercises, he said they were not done and he did not regard them as essential despite the recommendation in the Guides. He made the point that his examination of the Plaintiff was repeated.^[38]

43. [43]
    As to Dr Wallace’s reliance upon Chapter 18 of the AMA Guides, he said^[39]that his opinion was that Chapter 15 of AMA Guides were somewhat deficient in relation to lumbar spinal pain.^[40]For that reason he used Chapter 18 to attribute a 3 per cent Whole Person Impairment to the Plaintiff.  In respect of assessing chronic pain, Dr Campbell’s evidence was that where there was no other section of the AMA Guides that could reasonably be used, Chapter 18 is relevant ‘by default’^[41]. Dr Campbell adopted this course to assess the Plaintiff’s chronic lumbar pain.^[42]

44. [44]
    In re-examination,^[43]Dr Wallace said he was confident in his clinical examination, having repeated the clinical examination process on that day and he had great confidence that there was in fact a restriction of the Plaintiff’s range of motion in respect of the rotation of his cervical spine.

The Plaintiff’s ability to work post-Incident

45. [45]
    The Defendant submits, by reference to Exhibit 2 (Notice of Accident Claim Form) and the evidence of Drs Wallace, Campbell and FitzPatrick that the Plaintiff did not take any time off from his casual employment at BWS following the Incident. It is clear from the Plaintiff’s evidence that he did indeed return to work. In fact, the Plaintiff’s employment records indicate that four days absence were taken following the Incident.^[44]The basis of his claim for past economic loss and impairment of future earning capacity relates to the Plaintiff’s inability to perform the same duties and undertake the same shifts as before the Incident.

46. [46]
    In this regard, the Plaintiff said that he has continued his work with BWS which has been affected by his neck and lower back pain. He said he cannot do certain shifts, especially those days when they have deliveries comprising about 300 cartons of beer. Once the deliveries arrive, the Plaintiff was to place them on the floor and he and others are expected to put them in the store rooms and on the shelves. After 20 minutes of bending over and picking up cartons he gets a slight pain in his lower back, causing him to slow down and lift lighter boxes.^[45]The Plaintiff’s evidence was that these problems did not exist prior to the Incident. 

47. [47]
    To address the problems he faced when taking deliveries, the Plaintiff said he attempted to schedule his shifts on days that did not have deliveries,^[46]those latter days being Tuesdays, Wednesdays and Fridays.  The Plaintiff asserted that this resulted in a loss of earnings because, being a casual, if he did not work he was not get paid.^[47]

48. [48]
    The Plaintiff said that if he had been advised to undertake further physiotherapy he would have done so.^[48]Under cross-examination by Mr Jarro, the Plaintiff^[49]explained that he did not return to Dr Kang on 29 August 2015 as recommended because at the time he was receiving physiotherapy and did not think a return visit to Dr Kang was necessary.  When asked why he had not told any of Doctors Fitzpatrick, Wallace or Campbell that he avoided being rostered on delivery days, he said that he did not feel it was necessary to tell them because he believed he was attending the doctors’ appointments simply to describe his symptoms.^[50]

49. [49]
    The Plaintiff also conceded that his Statement of Loss and Damage^[51]does not make any mention of losing shifts at BWS.  But when put to him that he had not lost any shift work because of the accident, he said he had told his manager and they cut the shifts for him.  He worked Fridays from 4.00pm when most of the deliveries had gone except for a few loose boxes which he could handle.^[52]The Plaintiff’s evidence was that when there was no choice but to take deliveries and engage in a physically demanding shift, he simply tolerated the pain associated with his injury.^[53]

Mr Wilmott – Plaintiff’s BWS Manager

50. [50]
    Mr Willmott was the manager of BWS Richlands from the time the Plaintiff commenced work there until October 2016. He gave evidence that he first met the Plaintiff in high school and later employed him at BWS. The Plaintiff, whilst working for him at BWS, reported that he had been in a motor vehicle accident.^[54]Mr Willmott’s evidence was that prior to the Incident, the Plaintiff did not have any difficulty carrying out any of his duties at work but that after the accident he noticed a change in that the Plaintiff complained about his lower back and neck and asked not to be put on heavy duty days, namely delivery days.  Mr Willmott said he tried not to roster the Plaintiff on delivery days but this was not always possible.^[55]

51. [51]
    In cross-examination, Mr Willmott was taken to an Employment Summary Document.^[56]   He confirmed the Plaintiff worked as a casual and that the document recorded that the Plaintiff was absent for four days, equating to 27 hours due to the accident on 22 July 2015.^[57]The Plaintiff returned to work on 27 July 2015, but could not perform duties to assist with heavy delivery days on that day.^[58]As to how Mr Willmott calculated the four days absence, he said because he had to change the roster because of the Plaintiff’s unavailability for work. 

52. [52]
    The Defendant refers to section 9 of the Employment Summary, where Mr Wilmott indicated that the Plaintiff had returned to ‘Full Duties’, rather than ‘Modified Duties’ or ‘Full Duties, reduced hours’. Mr Willmott stated that ‘Full Duties’ did not include his responsibilities in respect of deliveries and referred only to ‘customer service and …stocking shelves’.^[59]

53. [53]
    At section 10 of the Employment Summary, Mr Willmott, indicated the Plaintiff was not involved in a graduated return to work program because he was unaware BWS had such a scheme. At section 13 of the Employment Summary stating that the Plaintiff’s duties had been performed satisfactorily since recommencement, Mr Willmott said he answered that in the affirmative because the Plaintiff can satisfactorily perform the jobs that he had given him. ^[60]

Assessment of the Plaintiff’s Injury under the AMA Guides

54. [54]
    The Defendant submits, by reference to the evidence of Dr Fitzpatrick, that the assessment method employed by Dr Wallace and Campbell was incorrect within the parameters of the AMA Guides. Specifically, the Defendant refers to the fact that neither Dr Wallace nor Dr Campbell required warm up exercises prior to their assessment nor utilised an inclinometer, which is described as the ‘device of choice’ under the AMA Guides. The Defendant also submits, by reference to section 18.3(b) of the AMA Guides^[61]that the Plaintiff’s doctors incorrectly applied Chapter 18 (as opposed to Chapter 15) to evaluate the pain-related impairment of the Plaintiff.

55. [55]
    Relevantly, section 12(2) of Schedule 3 of the Civil Liability Regulation 2014 (Qld) provides:

12 Greater weight to assessments based on AMA 5

…

(2) In assessing an ISV, a court must give greater weight to a medical assessment of a whole person impairment percentage based on the criteria for the assessment of whole person impairment provided under AMA 5 than to a medical assessment of a whole person impairment percentage not based on the criteria.

56. [56]
    In my view, both Drs Wallace and Campbell have satisfactorily justified their assessment method. Despite the criticisms launched at Dr Wallace and Dr Campbell, specifically in relation to the failure to use an inclinometer or require the Plaintiff to complete warmup exercises, I am of the view that their assessments were substantially in compliance with the criteria set out in the AMA Guides.

57. [57]
    I am further satisfied, based on the explanations provided by Dr Wallace and Dr Campbell, as to their assessment of the Plaintiff’s injuries, specifically in relation to the use of Chapter 18 of the AMA Guides to assess the Plaintiff’s lumbar spine injury.

Conclusion regarding the Plaintiff’s injuries

58. [58]
    Overall, I found the Plaintiff to be a credible witness. Having regard to the evidence of the physiotherapist Mr Chai and Doctors Campbell and Wallace, I am satisfied the Plaintiff has suffered a moderate cervical spine injury within Item 88 of Schedule 4 of the Civil Liability Regulation 2014 with an ISV range of 5-10. Further, I find the Plaintiff has suffered a minor lumbar spine injury within Item 94 of Schedule 4 with an ISV range of 0-4. It will be apparent from these findings that I have preferred the evidence of Doctors Campbell and Wallace to that of Dr Fitzpatrick. In doing so, I reject the criticism launched at Dr Campbell and Dr Wallace in respect of their method of assessment of the Plaintiff’s injuries under the AMA Guides. Of the two injuries, the dominant injury is the moderate cervical spine injury. To my mind the appropriate ISV is a value of 9 within Item 88.

Quantum

General damages

59. [59]
    Given my finding of an ISV 9 at Item 88 (moderate cervical spine injury), the Plaintiff is entitled to general damages of $14,040 under Table 7, Schedule 7 of the Civil Liability Regulation 2014 (Qld).

Past Economic Loss

60. [60]
    For the financial year ending 30 June 2015, the Plaintiff earned a net amount of $27,144^[62]at an average of $522 per week.  In the following year to 30 June 2016 he earned $25,802 net, an average of $496 per week.^[63]His most recent payment summary to 14 May 2017^[64]evidences total net income of $17,156 for the period 1 July 2016 to 14 May 2017 (46 weeks), an average of $373 per week.

61. [61]
    I accept the Plaintiff’s submission that this decline in income can be attributed to the Plaintiff having to vary his shifts in such a way as to avoid those shifts which required heavy lifting and bending so as to accommodate his injuries. I reject the Defendant’s submission that this decline in income can be explained merely by virtue of normal fluctuations in the shifts taken by casual workers or by the Plaintiff’s self-employment aspirations. On balance, I am satisfied that because of his injuries, the Plaintiff was selective in the shifts he undertook and that this has resulted in monetary loss. In this regard, I accept the Plaintiff’s financial evidence as corroborated by the evidence of Mr Chai and Mr Willmott.

62. [62]
    Had the Plaintiff maintained his earnings of $522 per week earned in the 2015 financial year through to 14 May 2017 (98 weeks) his actual earnings would have been $51,156. In fact, the earnings were $42,958 ($25,802 in 2016 plus $17,156 to 14 May 2017) evidencing a loss of $8,198. Accepting that this shortfall may not be wholly attributable to the Plaintiff’s injuries as he concedes, I agree that an appropriate discount of 15 per cent should be made to reflect any other exigencies apart from his injuries leading to the loss of income in addition to the period in early July 2015 when he worked without injury. An amount of $7,000 for past economic loss is appropriate in the circumstances.

63. [63]
    On that figure of $7,000, the Plaintiff is entitled to interest calculated at one half of the current ten year Treasury Bond Rate.^[65]The applicable rate is 1.34 per cent (one half of 2.68 per cent).^[66]Given that the accident occurred on 22 July 2015, some three weeks into the 2016 financial year, the Plaintiff is entitled to interest at 1.34 per cent on the figure of $7,000 for a period of 95 weeks, representing the total period of 98 weeks above mention less the three weeks in the 2016 financial year during which the Plaintiff worked free of injury. The Plaintiff is therefore entitled to interest on the amount of past economic loss at $171.37.

Superannuation Loss

64. [64]
    Under s 56 of the Civil Liability Act 2003, the relevant percentage for loss of superannuation entitlements is the minimum percentage be paid by an employer as its superannuation contribution.  Under the Superannuation Guarantee Charge Act 1992 (Cth) 9.5 per cent is the current such rate which applied to the sum of $7,000 yields $665.

Impairment of Plaintiff’s Earning Capacity

65. [65]
    Whilst working at BWS prior to and subsequent to the accident on 22 July 2015 the Plaintiff, on his evidence, was developing an online website targeting the Vietnamese community within Australia and overseas in Vietnam intending to comprise 80 per cent jobs and accommodation and the balance as services and sales.^[67]He compared it to similar sites such as the tradingpost.com.au, gumtree.com.au and seek.com.au.  He had registered the website to go online some three or four months prior to his accident on 25 July 2015.  He said he paid $100 per week on average to Facebook and further monthly fee of $15 to keep the website alive.^[68]The website was generating about $100 per week^[69]from an optometrist in Calamvale, but the Plaintiff said he intended to attract other advertising and to contact local businesses to let them know what he was offering.  He had in mind charging fees of between $50 and $100 a week to his customers.^[70]As the evidence earlier set out shows, the Plaintiff has difficulty sitting for any length of time at a computer given the nature of his injuries. 

66. [66]
    He seeks damages for impairment of future earning capacity based on a projected income loss from his website business. But the website is in its infancy and in my mind it is still highly speculative as to any earnings which may flow from it. I am not prepared to assess damages by reference to that speculative venture.

67. [67]
    The better approach is to calculate the impairment of future earning capacity by reference to the impact his injuries have had on his ability to work at BWS or some like employment. As I have determined above, I am satisfied that the Plaintiff’s injuries have diminished his working capacity and therefore will be productive of financial loss into the future.

68. [68]
    The Plaintiff’s Statement of Claim did not include a claim for future impairment of earning capacity based on the loss of earnings by virtue of a decreased capacity to fulfil his duties at BWS.^[71]Notwithstanding, no objection has been taken to the characterisation of claim in this way. It remains with the Plaintiff to show that his earning capacity has been diminished by the Incident-caused injury and ‘that diminution is or may be productive of financial loss’.^[72]Having regard to the Plaintiff’s evidence and the evidence of Mr Willmott, I accept that such a diminution has occurred.

69. [69]
    As I have set out above, his average weekly earnings pre-accident in the 2015 financial year were $522 per week. His most recent earnings in the 2017 financial year of $17,156 (to 14 May 2017)^[73]a period of 46 weeks, shows an average income of $373 per week, a shortfall of $149 per week.  The Plaintiff is presently 30 years-of-age.  Adopting a remaining working life of 37 years and applying a multiplier of 894^[74], one arrives at a figure of $133,206 representing the Plaintiff’s future impairment of earning capacity.

70. [70]
    As the Plaintiff rightly concedes, and having regard to s 55 of the Civil Liability Act 2003 (Qld), some discounting should be employed to take account of any future contingencies which may or may not occur. Consideration of this necessarily precludes any precise calculation for this head of damage.  Accordingly, I accept the submission of the Plaintiff that the appropriate discount would be to reduce the award to $100,000 which I so do.

Future Treatment and Medication Expenses

71. [71]
    To date, the Plaintiff has incurred $3,339.60 for physiotherapy treatment and non-prescription analgesia. He now claims a global sum of $5,000 for future treatment and analgesia medication, which represents $5 per week over his statistical life expectancy of 55 years, according to the Australian Bureau of Statistics Tables, employing a multiplier of 996. I am satisfied $5000 for future treatment and medication expenses is a reasonable amount.

Special damages

72. [72]
    These have been agreed at $734.60 in addition to the $2,605 for rehabilitation paid by the second defendant to date. It reflects the cost of five physiotherapy treatments which he Plaintiff has paid for himself, together with travelling expenses to and from those appointments.

Summary of Damages

73. [73]
    I award the following damages to the Plaintiff: