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  • Unreported Judgment

McKay v Armstrong

 

[2020] QDC 127

DISTRICT COURT OF QUEENSLAND

CITATION:

McKay v Armstrong & Anor [2020] QDC 127

 

PARTIES:

JESSIE FAY ANN MARGARET ROSE MCKAY

(plaintiff)

v

CRAIG ROBERT ARMSTRONG

(first defendant)

and

RACQ INSURANCE LIMITED (ACN 009 704 152)

(second defendant)

 

FILE NO/S:

99 of 2017

 

DIVISION:

Civil

 

PROCEEDING:

Claim

 

ORIGINATING COURT:

District Court of Queensland, Cairns

 

DELIVERED ON:

10 June 2020

 

DELIVERED AT:

Cairns

 

HEARING DATE:

19, 20 & 21 May 2020

 

JUDGE:

Morzone QC DCJ

 

ORDERS:

  1. Judgment to the plaintiff against the defendants for $77,473.73.
  2. I will hear the parties further on the issue of costs.
  3. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, I will also order that the defendants pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – motor vehicle accident – where plaintiff was injured in car collision – where liability admitted.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGE – PERSONAL INJURIES – multiple injuries claimed – credit of plaintiff – where plaintiff stoic and reliable  – nature and extent of injuries caused by the accident – where physical and psychiatric injuries present – where soft tissue injury, minor fracture or minor internal organ injury present – where psychiatric injury not significant cause of psychiatric conditionassessment of damages.

 

Legislation

Civil Liability Act 2003 (Qld) s 55, 59

Civil Liability Regulation 2003 (Qld) schedule 4

Cases

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Chappel v Hart (1998) 195 CLR 232

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Graham v Baker (1961) 106 CLR 340

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Medlin v State Government Insurance Commission (1995) 182 CLR 1

 

COUNSEL:

R J Armstrong for the plaintiff

G C O’Driscoll for the defendants

 

SOLICITORS:

Roati Legal for the plaintiff

Quinlan Miller & Treston Lawyers for the defendants

 

 SUMMARY

  1. [1]
    The plaintiff claims damages against a negligent driver who caused her injuries and consequential loss and damage in a car crash that occurred in the afternoon of Valentine’s Day in 2014 when she and her partner were returning from an outing.
  1. [2]
    At around 4pm on 14 February 2014 the plaintiff was the front seat passenger of a Holden Commodore driven by her partner. They were travelling north along Woolcock Street in Townsville when the first defendant, driving a Holden Clubsport, lost control of his car and collided with the Holden Commodore.
  1. [3]
    There is no dispute about liability, and the case is confined to the quantum of damages. The determinative issues in the proceeding are: What is the nature and extent of the plaintiff’s injuries caused by the accident? And what is the assessment of those damages?
  1. [4]
    I have found that the plaintiff suffered a predominant injury to her shoulder region with painful symptoms radiating up her neck, with a secondary psychiatric injury of adjustment disorder with anxious and depressed mood minorly attributable to the accident, and otherwise caused by her complex personal and relationship circumstances. The plaintiff continues to have problems in her work and requires treatment in the form of pain relieving and anti-inflammatory medication, physiotherapy, massage and exercises.
  1. [5]
    I have assessed damages and give judgement for the plaintiff accordingly.

What are the nature and extent of the plaintiff’s injuries caused by the accident?

  1. [6]
    The plaintiff has the onus to prove a sufficient connection between the breach and the loss suffered. The plaintiff must prove that every item of loss for which she claims damages is connected to the first defendant’s wrong in the sense that the wrong caused or materially contributed to that loss.[1]   It is a question of fact.[2]  The relevant question is whether the first defendant’s negligence was so connected with the plaintiff’s loss or damage that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.[3]
  1. [7]
    This issue largely depends on the credibility and reliability of the plaintiff, corroborative witnesses and documents. The plaintiff impressed me with her candour as she gave her evidence plainly without embellishment. I accept the evidence is generally consistent with her account given to the medical experts.
  1. [8]
    The plaintiff described:

The collision was a hard impact.  It was frightening.  At first I felt very shaken up and scared. I remember the Ambulance at the accident scene.   There was a discussion about taking me to the Townsville Hospital for examination, however, I just wanted to go home to Ingham.  I then travelled back to Ingham with Geofrey in the truck that transported the damaged Commodore home.  On the way home I started experiencing increasing pain in the left side of my chest/upper back/left shoulder blade area. Later that evening, I attended at the Ingham Hospital because of the pain I was experiencing.  However, I was not able to undergo any radiological scans as I was pregnant.  I was told to rest and take Panadol/paracetamol to treat my pain symptoms.

  1. [9]
    After experiencing increased symptoms on her journey home, the plaintiff decided to go to the local Hospital on the evening of 14 February 2014. She presented to the Ingham Hospital at about 7 pm for assessment. The Ingham Hospital Flow Sheet states: “Walks in, states was in car accident today in T’ville. Thought was okay but [complaining of] sore [left] back ribs… No pain on scene [the Queensland Ambulance Service] were going to transport her due to shock, but they chose to return to Ingham.  Doesn’t recall hitting there. Not worse on inspiration; non-radiating… Pain comes and goes sharp pain 6 – 7/10.”   The plaintiff was examined by Dr Chris Gora at 8:06 PM who noted that she “…developed some sharp pains on the left side of her chest, nil [shortness of breath], pain comes in waves…. Neck: no C-spine tenderness, full range of painless neck movements…MSS: [no abnormality detected].   Impression: MSS pains.”  The plaintiff was discharged at 8:15 pm.
  1. [10]
    The plaintiff states that “Since the accident, my main problem is ongoing pain in my left shoulder blade region.  This pain is a sharp pain “like a knife” being stuck into me.  I have to elevate my left arm to try and reduce the discomfort when the pain is bad.  I have also experienced regular headaches, neck pain and some spasms in my neck since the accident.”  In evidence she described and demonstrated that the shoulder pain radiated up the left side of her neck to her hairline behind her ear.   The plaintiff also experiences traffic anxiety and depression.
  1. [11]
    It is uncontroversial that the injury sustained is a direct result of the accident as the plaintiff has no prior history of injury or symptoms specific to the left scapular region prior to the accident.  However, the parties are in dispute about the nature and extent of the orthopaedic injury, and the cause of any psychiatric injury.

Medical Evidence

  1. [12]
    Dr John Pentis, orthopaedic surgeon, examined the plaintiff on 19 May 2015. He noted that since the accident the plaintiff had continued to experience pain in the scapular region on the left side on and off. On examination the plaintiff displayed tenderness in the cervicoscapular musculature on rotating and flexing the neck to the right. Coupled with tenderness on the inner border of the scapula and in the cervicoscapular musculature on the left side. Dr Pentis opined that the plaintiff had sustained soft tissue musculo-ligamentous injuries to the cervical, cervicoscaplular region on the left side.
  1. [13]
    Dr Peter Boys, orthopaedic surgeon, examined the plaintiff on 7 February 2016. He noted intermittent strain symptoms involving the left posterior chest wall and scapular region, these are described as around the scapular at times with lifting activities. On this occasion he diagnosed a musculoligamentous strain around the left scapular musculature as a result of the accident. In his report dated 17 February 2016 Dr Boys does not identify any physical incapacity which would preclude employment or study.
  1. [14]
    Dr Bruce Low, orthopaedic surgeon, assessed the plaintiff on 15 April 2018 and noted that the plaintiff still had left shoulder pain in the medial border of the scapular and the inferior angle of the left scapular. On examination, the plaintiff displayed full left shoulder mobility, full neck mobility. Dr Low diagnosed the plaintiff with soft tissue musculoligamentous injury to the cervical spine with radiating pain to the left medial scapular or inferior angle of the scapular most likely referred from the spine.
  1. [15]
    Dr John Maguire, orthopaedic surgeon, examined the plaintiff on 13 March 2020 and diagnosed her with a soft tissue injury (whiplash type injury) cervical spine with pain in the left periscapular region. Dr Maguire described the plaintiff’s prognosis as guarded and expected that she will experience ongoing symptoms, he assessed her as having a 6% whole person impairment as a result of the accident citing her minor difficulties with activities of daily living. Dr Maguire provided a supplementary report following a telephone conference with the plaintiff on 8 May 2020 in which he notes that the plaintiff has some restrictions in her ability to do her work with its rotation requirements, particularly when lifting heavy objects. He opines that the plaintiff will not work full time hours and would only be able to complete short periods of work intermittently which are light in nature.
  1. [16]
    Dr Boys provided a later report dated 23 October 2018. He affirmed that the plaintiff had no history of injury or symptoms specific to the left scapular region prior to the accident. The report expressed that now the plaintiff had local pain in the region of the vertebral border of the left lower scapular which presents whilst she is doing chores. She also experiences a degree of discomfort occasionally with protracted static positioning in a bent or sitting position. Dr Boys recorded no description of pain in the region of the neck or its supporting musculature and unrestricted movement of the left shoulder and neck. He opined that the plaintiff requires no treatment but would be routinely encouraged to maintain stretching and strengthening exercises directed to the scapula area. Dr Boys maintained his assessment of 0% impairment of the whole person noting the AMA 5 assessment criteria and the plaintiff’s full range of motion referable to the left shoulder without dysrhythmia, impingement or instability.
  1. [17]
    In evidence Dr Boys maintained that her injury was cervicothoracic in origin rather than cervical spine in origin.  However, having the benefit of the plaintiff’s evidence of continuing symptoms, he reversed his view about nil treatment.  Instead, he recommended that the plaintiff self-medicate with over the counter anti-inflammatory and pain relief medication, heat and massage, physiotherapy, and undertake a program of exercises prescribed by the physiotherapist.
  1. [18]
    It is difficult to distinguish the differential diagnoses of Dr McGuire and Dr Boys, particularly in relation to the origin of pain. The plaintiff’s evidence was consistent with her medical presentation to Dr Boys, her shoulder pain is aggravated by domestic and work duties, and conservative pain management. Consistent with her medical advice, she has not sought physiotherapy and related exercises.
  1. [19]
    It seems to me that as a result of the accident the plaintiff suffered a soft tissue injury in the left scapular musculature manifesting in musculoligamentous pain.

Psychiatric injury

  1. [20]
    The plaintiff properly concedes that her psychiatric state is not the dominant injury.
  1. [21]
    The plaintiff experiences anxiety, in particular traffic anxiety, which interferes with her everyday life, and she attributes some of her depression to the accident. The defendant maintains that psychological treatment did not arise out of the motor vehicle accident, but instead the relationship difficulties she experienced including her partners Ice addiction and domestic violence.
  1. [22]
    Dr Riccardo Caniato, consultant psychiatrist assessed the plaintiff initially on 1 May 2018 then again on 14 May 2020. He identified that from a psychological point of view, the accident led directly to a complicated spiral in the plaintiff’s life, but also noted it was complicated by her partner’s significant mental health symptoms including escalating substance abuse and domestic violence. Dr Canniato diagnoses the plaintiff as having a major depressive disorder and details that she continues to have physical pain symptoms which maintain her depressive illness. He considers the motor vehicle accident as the major significant to the cause and/or aggravation of a major depressive order.
  1. [23]
    Dr John Chalk, psychiatrist, identified that the plaintiff, at best, had limited psychiatric symptomatology prior to the accident and, in its aftermath, she developed some symptoms of an adjustment disorder with anxious and depressed mood. In Dr Chalk’s view the plaintiff is suffering from some residual symptoms of an adjustment disorder, but these in his view are only partly related causally to the accident. Dr Chalks report also notes that she spoke about her then and current partner, Geoff, who was at that time addicted to Ice and was domestically violent. He had knocked her out on one occasion and she ultimately took out a Domestic Violence Order.
  1. [24]
    Therefore, I prefer the evidence of Dr Chalk over Dr Caniato. It seems to me that the accident is unlikely to be a substantial and significant causative of the plaintiff’s psychiatric condition.

What is the assessment of damages?

  1. [25]
    The plaintiff claims consequential loss and damage in the order of $398,245 on the basis of a moderate cervical spine soft tissue injury and secondary anxiety (traffic anxiety) and depression. In stark contrast, the defendant contends for an assessment under those heads in the rage of $46,830 to $70,450 on the basis of musculoligamentous pain around the left scapular musculature and marginally related psychiatric injury.

General Damages

  1. [26]
    The plaintiff was born on 6 January 1990 and was 24 at the time of the accident. She is now aged 30 years. She a life expectancy of 58 years, and she must endure pain and suffering and loss of amenities of life from this injury for the foreseeable future, with some prospect of relief by appropriate treatment.
  1. [27]
    The parties agree that the orthopaedic injury is the “dominant injury” and I ought adopt an ISV in the range for that injury, taking into account that the ISV may be higher in the range having regard to the secondary injury.
  1. [28]
    In his written evidence Dr Boys ascribed a 0% impairment to the plaintiff’s injury, whereas, Dr McGuire assessed a 6% impairment. Having preferred Dr Boys’s diagnosis I will use the most closely aligned descriptor in Item 39.2 of the Civil Liability Regulation - soft tissue injury, minor fracture or minor internal organ injury which allows an ISV of 0 to 4.   Even if I had preferred the diagnosis of the Dr Pentis, Dr Lowe and Dr McGuire I would have preferred the descriptor of a minor cervical spine injury within in item 89 schedule 4, being less than a moderate cervical spine injury within item 88 of Schedule 4 contended by the plaintiff. 
  1. [29]
    In my view, the plaintiff’s dominant injury is her a soft tissue injury in the left scapular musculature manifesting in musculoligamentous pain which I assess with an ISV of 4.
  1. [30]
    Whilst I accept some attribution of the psychiatric injury to the accident, in my view no further uplift is warranted having regard to the plaintiff’s physical injuries, and the nature and extent of the broad considerations in assessing her dominant injury.
  1. [31]
    A resultant ISV of 4 equates to general damages in the amount of $6,800

Loss of Earning Capacity

  1. [32]
    Section 55 of the Civil Liability Act 2003 provides:

“(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

  1. (2)
    The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.
  1. (3)
    If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. …”
  1. [33]
    The Court of Appeal in Allianz Australia Limited v McCarthy[4] set out comprehensively the interaction between s 55 of the Civil Liability Act and the calculation of economic loss.   The court found while section 55(2) mandates that a court may only award damages if satisfied that the person injured will suffer loss of earnings, the provision does not alter the common law.  To succeed, the plaintiff must establish: first, that her earning capacity has in fact been diminished by reason of the accident related injury; and second that damages for loss of earning capacity is or may be productive of financial loss.[5]
  1. [34]
    The High Court in Malec v J C Hutton Pty Ltd[6] held that when considering an injured plaintiff’s financial position, if not for the injury, damages should be assessed on the basis of degrees of probability.  That is so even if there is thought to be a less than even chance of loss.  The Court recognised that the assessment of economic loss is neither scientific nor an arithmetic calculation.  The principle is found in the judgment of the majority (Deane, Gaudron, and McHugh JJ) at 642-3 as follows:

"A common law court determines on the balance of probabilities whether an event has occurred.  If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect to events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9% - or very low - 0.1%. But unless the chance is so low as to be regarded as speculative - say less than 1% - or so high as to be practically certain - say over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses a degree or probability that an event would have occurred or might occur, and adjusts its award of damages to reflect the degree of probability. ... The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."

  1. [35]
    Brennan and Dawson JJ agreed with the general thrust of the majority but considered it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage, and did not like using 'probability' to describe the possibility of occurrence of a situation that is minimal.[7]  Degrees of probability must be taken account of with respect to both pre-trial and post-trial economic loss.  It is usual for those heads of damage to be assessed separately as past and future economic loss to realise greater accuracy.  However, in my view where there is dearth of pre-trial and post-trial evidence it is open to make a single assessment of all post-accident economic loss.

In Graham v Baker,[8] Dixon CJ, Kitto and Taylor JJ noted:

... an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.

  1. [36]
    Later in Medlin v State Government Insurance Commission,[9] Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity had been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.
  1. [37]
    McHugh J explained the proper basis for quantification of damages for loss of earning capacity was this way:

“In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings.  In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings.  That is because an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss”.  Nevertheless, there is a difference between the two approaches, andthe loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income.  Earning capacity is an intangible asset.  Its value depends on what it is capable of producing.  Earnings are evidence of the value of earning capacity but they are not synonymous with its value.  When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s pre-accident and post-accident earnings.  This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.”

  1. [38]
    Each case must depend on its own facts and medical evidence.

Past Economic loss

  1. [39]
    In 2014, at the time of the accident the plaintiff was a fulltime parent and carer of her 2 children in her relationship. She previously worked in sales and planned to return to work in due course.
  1. [40]
    Given the instability in the plaintiff’s intimate relationship, it is conceded that the plaintiff would have had difficulties returning to the paid workforce until early 2019 when the relationship became stronger and more stable.
  1. [41]
    The plaintiff returned to work on 22 August 2019 as a supermarket checkout operator. Her shifts vary from four to five hours. The plaintiff her work requirements as involving:
  1. (a)
    Mainly working on the traditional checkout.  Her stints on the traditional checkout are about two hours at a time and then she has a 15 min break.
  1. (b)
    There are two types of checkouts at Woolworths Ingham – the traditional long checkout and also the express checkouts where you have 15 items or less.  She is sometimes relegated to the express checkout for relief.
  1. (c)
    She grabs items off the conveyor belt, scans each of them and then either puts them into bags or put them down onto a shelf at the end of the conveyor belt.
  1. (d)
    Sometimes the items can be heavier items such as a 10 pack of cans of drink, bags of rice and bags of dog food. 
  1. (e)
    Her duties include rearranging products by reaching and pulling products forward onto the racks for better presentation to customers. 
  1. (f)
    She is also involved in replenishing stocks of drinks by going to the storeroom, getting bulk packs of drinks, loading them onto a trolley and then stacking the drinks in the drinks area.
  1. (g)
    In compliance with the COVID 19 precautions, the plaintiff must also wipe down her work area with disinfectant after every second or third customer and she was also required to wipe down trolleys as well.
  1. [42]
    The plaintiff’s injuries cause her increased pain when doing home duties, which in turn also impacts her work. She explained, and I accept, her injuries hinder her ability to perform her work to a fulltime extent this way:

“33. I suffer from pain and discomfort working as a Checkout Operator with Woolworths and currently have difficulties coping with the demands of my fairly short four to five hour shifts. I find that extended standing results in neck pain radiating into my left shoulder and in addition find that the movement of grocery items through the scanning process into bags aggravates my neck and left shoulder pain.

34. Apart from working on the checkouts, my duties at Woolworths also include the following:

(a)  stacking of products into fridges and freezers;

(b) assisting in the deli;

(c) cleaning of trolleys, cash registers and baskets as part of the COVID 19 requirements;

(d) attending to product presentation on shelves, a process which is called “face up” and includes the movement of items to the front of shelves.

35. I usually take a couple of Panadol before commencing a work shift and often take a couple more during the shift, but still find that by the end of a shift I am suffering from increased neck and shoulder pain. I take extra Panadol after completing a shift if the pain is bad. I sometimes have a lie down and rest after a shift because of pain.”

  1. [43]
    The defendant points to this absence of any complaint by the plaintiff in her treating doctor’s record despite her concession that you go to the doctors for treatment.
  1. [44]
    The plaintiff did go to her doctor from time to time over 9 months and had multiple opportunities to complain of pain in her periscapular region. However, I think her lack of persistent, repetitious or even occasional complaint to her doctor is completely explicable and reasonable. It was a condition she accepted she had to live with. None of the expert witnesses saw any scope for treatment and either treated her condition as stable and permanent, or in Dr Boys case, as practically resolved. And similarly, she did not disclose any limitations when she applied for her position or make constant complaint to her employer or overtly display pain or discomfort. I do not characterise this as deceptive or dishonest, but rather indicative of her character. The plaintiff is a stoic, uncomplaining and proud woman who has endured much in her personal and private life. I accept that the plaintiff did not consciously prioritise or realise the need to make complaints to her treating doctor or employer about matters she had accepted she needed to live with.
  1. [45]
    However, I accept that the plaintiff would often periodically manage her pain by raising her left arm over her head, taking her scheduled breaks and moving to the express check out.  The plaintiff’s manager, Ms Tournerie, provided a statement supporting her work ethic saying:

5. Jessie has a strong work ethic and is always prepared to accept the shifts on offer subject to her family commitments as the mother of two young children.  (my emphasis)

6. Jessie appears to enjoy her work and gets on well with her workmates at Woolworths.

7. Jessie rarely complains at work but on one or two occasions she reported to me that she was struggling with her workload and as a result I moved her into an express checkout lane from a normal lane so as to reduce her workload.  Jessie had informed me that she had been injured in a car accident but to the best of my recollection did not inform me when the accident occurred or the extent of her injuries. 

  1. [46]
    In evidence Dr Boys conceded that the plaintiff may experience an increase in pain in some way when she undertakes sustained, regular, household maintenance activities and checkout operation duties. He cannot find any condition that would limit the plaintiff’s capacity to do that work for a normal working day. However, he accepted that the plaintiff may have pain or muscular strain in the course of her work, and required treatment by way of anti-inflammatories and pain relieving medication, physiotherapy and exercises to improve the musculature of her cervicothoracic area.
  1. [47]
    The plaintiff claims for past economic loss of $8,338.66 being a weekly loss of $286.16 from 22 August 2019 to 21 May 2020 and applying a 25% discount. The plaintiff’s calculations rely on a net weekly income of $495 based on a pre-accident working capacity of 20 hours a week for 38.85 weeks at the ordinary rate plus casual loading of $27.10 per hour less tax and Medicare of $47 per week.
  1. [48]
    I do accept that the ongoing impact of the plaintiff’s injuries has reduced her working capacity which has resulted in financial loss to a minimal extent delaying her return to work until later 2019 and thereafter interrupting her opportunities in work. Looking at her skills and experience in sales or customer service. I am not persuaded that the plaintiff would have consistently and sustainably worked any more than 10 hours a week.
  1. [49]
    Given the plaintiff’s stoic nature and the likelihood that she pushed herself, doing the best I can on the available evidence, I will allow a global sum of $5000 for past economic loss from the time of her return to work until trial.  I rationalise this outcome by using a lost capacity to work an extra 5-6 hours at a net hourly rate of $24.74 extrapolated from her net pay in that period a week, being a weekly loss of $136.13 for about 42 weeks and applying a 10% discount for the exigencies of life.
  1. [50]
    On this basis, I assess the plaintiff’s past economic loss at $5000.
  1. [51]
    I also allow interest of $13.73 pursuant to s 60(3) of the Civil Liability Act 2003 (Qld),[10] and I calculate past superannuation loss at $475 using the rate of 9.5%.

Future economic loss

  1. [52]
    The plaintiff argues that but for her injury, she would have been able to work for Woolworths on a full-time basis from the time that her daughter commences prep at from the 2021 school year.
  1. [53]
    The ongoing impact of the plaintiff’s accident injuries will likely persist for the foreseeable future while the plaintiff’s work requires twisting and shoulder movements especially in the COVID-19 era.
  1. [54]
    The plaintiff testified that:

“43. I believe that I will have difficulty in fulfilling my career ambitions as a consequence of my accident-related injuries and associated psychiatric condition. It will be difficult to progress into managerial roles when I am struggling to work part time hours only.”

  1. [55]
    However, there is no evidence that her progression is contingent upon her working part time hours in the checkout position. Indeed, Ms Tournerie spoke of the plaintiff’s vocational advancement in optimistic terms:

8. Jessie has expressed an intention to pursue a career within the Woolworths Group and I know that from my own experience there are good opportunities for advancement into supervisory roles within the group. 

  1. [56]
    The therapeutic regime agreed by both Drs McGuire and Boys will likely alleviate the plaintiff’s pain symptoms and strengthening of the muscles in her scapulothoracic area and improve her work capacity over 12 months. Even with available treatment, with the plaintiff’s plight I think it is more probable that her injury will impact her from time to time for the remainder of her work in a more physical role. It is not clear how or when the plaintiff may progress to a supervisory role or the scope of work required by a supervisor. Dr Boys reckoned that the plaintiff will be less restricted in a role of supervisor and enjoy a greater working capacity as a result of physiotherapy and perhaps occupational therapy.
  1. [57]
    The plaintiff is a stoic and determined individual and it is likely that, but for the injury, would have advanced at a faster rate and worked to age 67. But I think she now faces a period of continuing difficulty with her reduced working capacity, which will likely impact her promotional prospects, delay per progress and disadvantage her generally in vying for a supervisory role. Therefore, she is likely to suffer economic loss into the foreseeable future. The nature and extent of the continuing loss of earning capacity warrants more than a trivial or nominal award without plunging into unacceptable speculation and conjecture.
  1. [58]
    The circumstances of this case do not enable me to precisely calculate future economic loss and I prefer a global award. There are many variables and imponderables including:
  1. (a)
    Her family responsibilities and relationship circumstances;
  1. (b)
    Her limited education and fields of work experience (shop assistant/checkout operator);
  1. (c)
    Her limited work capacity and financial evidence since the accident;
  1. (d)
    The untested prognosis of treatment for her physical and mental conditions – whether she will be able to better endure part-time work;
  1. (e)
    The availability of domestic assistance to enable her to increase her hours at work;
  1. (f)
    The prospects that her ambitions for advancement into a supervisory role may have been diminished;
  1. (g)
    Her vulnerability on the open labour market in her injured state, and the ongoing support of a sympathetic employer or workplace in the future.
  1. [59]
    I will allow $50,000 for future economic loss.  I rationalise this outcome by using $123.75 net per week loss of earning capacity for 1 year using the 5% multiplier of 51.0 being a loss of about $4,460 until schooling provided opportunity to work more work hours, then a loss of $66 a week being  2-3 hours a week at the hourly rate of $24.75 and using the 5% multiplier of 910.0 for 39 years having regard to her improved capacity to work, increased hours and likely promotion, and then applying a discount of about 25 per cent for the plaintiff’s vicissitudes of life and her vocational contingencies.
  1. [60]
    I will allow future superannuation loss of $5,665 using the rate of 11.33%. 

Special damages

  1. [61]
    The amount claimed for past monetary loss by way of medical expenses, pharmaceutical expenses, rehabilitation expenses and travel expenses to obtain treatment is agreed at $3,000.00 including interest.

Future expenses 

  1. [62]
    The plaintiff claims $20,894 for future pharmaceutical and other expenses as follows:
  1. (a)
    Future Psychiatrist expenses: $1,200.00, less 50% re relationship issues contribution = $600;
  1. (b)
    6 Physiotherapy treatments at a cost of $80.00 per treatment: $480.00;
  1. (c)
    12 counselling treatments per year at a cost of $200.00 per treatment for 5 years on the 5% tables – multiplier 231: $10,660.65, less 50% re relationship issues contribution = $5,330;
  1. (d)
    Future medical expenses including for referral to specialist and investigate by MRI, plus follow up consultations – global $2,000;
  1. (e)
    Future pharmaceutical expenses – $14.60 per week to age 88 (multiplier 1,006.0) less 15% = $12,484;
  1. [63]
    The claim is based on the plaintiff’s higher order physical condition and greater psychiatric condition being attributable to the accident. I have made contrary findings about the nature and extent of the plaintiff’s accident related impairment, countenanced the prospect of alleviating physiotherapy treatment and exercises, and taken into account the plaintiff’s conservative attitude to medication and her likely continued ad hoc need for relief of pain and inflammation.
  1. [64]
    I will allow a global sum of $5,000 for future special damages.

Future care and assistance

  1. [65]
    The plaintiff properly concedes that any claim for past domestic care and assistance falls short of the statutory threshold test in s 59 of the Civil Liability Act 2003 (Qld), however she maintains a claim for $30 per week for future paid care.
  1. [66]
    The plaintiff has previously told Dr Low and to Dr Boys that she can carrying out all domestic tasks. She gave evidence about doing the following domestic activities:
  1. She sweeps the lino floors every day which takes about half an hour;
  2. She would mop the entire house once a week, sometimes taking a break, but taking up to 2 hours to mop the house;
  3. She cleans the bathroom;
  4. She does the washing, although now she uses a lower clothesline and her daughter assists.
  1. [67]
    In the quantum statement she explained:

“56. I continue to experience difficulties and need assistance with heavy household chores, including cleaning, particularly mopping and sweeping and also with hanging out washing. Apart from the limited assistance that I continue to receive from Geofrey and Ella-Rose I have no alternative but to cope with my household chores by taking regular breaks and spreading the workload out over an extended period. This in turn causes increased pain and makes it difficult for me to cope with work at Woolworths.”

  1. [68]
    I accept that the plaintiff has some difficulty mopping which she overcomes by pacing herself, and she has adjusted her clothesline to more enable her to hang out the washing with her daughter’s help. These problems arise and continue while she is not in receipt of treatment. I expect that her current difficulties will be alleviated with the recommended physiotherapy treatment and exercises. I will allow some paid care for 2 hours per fortnight for 12 months pending the plaintiff undertaking her physiotherapy treatment and exercises. As for any secondary impact on her work, I have already taken into account the plaintiff’s reduced working capacity in my assessment of past and future economic loss.
  1. [69]
    Therefore, I allow $1,530 for future care and assistance using $30 net per week 1 year using the 5% multiplier of 51.0.

Conclusion and orders

  1. [70]
    For these reasons, I assess damages and give judgment to the plaintiff against the defendants for $77,473.73 summarised as follows:

General damages

$6,800.00

Past Economic Loss

$5,000.00

Interest

$13.73

Past Superannuation Loss

$465.00

Future Economic Loss

$50,000.00

Future Superannuation Loss

$5,665.00

Past Special Damages & interest

$3,000.00

Future Special Damages

$5,000.00

Future care and assistance

$1,530.00

Total

$77,473.73

  1. [71]
    I will hear the parties further on the issue of costs.
  1. [72]
    Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, I will also order that the defendants pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Judge D P Morzone QC

Footnotes

[1]Chappel v Hart (1998) 195 CLR 232; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6.

[2]Medlin v State Government Insurance Commission (1995) 182 CLR 1.

[3]March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 174-5.

[4]Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 at [47] – [62].

[5]Graham v Baker (1961) 106 CLR 340 at 347 per Dixon CJ, Kitto and Taylor JJ; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 per Deane, Dawson, Toohey and Gaudron JJ, and at 16 per McHugh.

[6]Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

[7]Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 640.

[8]Graham v Baker (1961) 106 CLR 340.

[9]Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 per Deane, Dawson, Toohey and Gaudron JJ, and at 16 per McHugh.

[10]  $13.73 = 0.68% × $5,000 × 38.85/52 weeks × 0.5

Close

Editorial Notes

  • Published Case Name:

    Jessie Fay Ann Margaret Rose McKay v Craig Robert Armstrong and RACQ Insurance Ltd

  • Shortened Case Name:

    McKay v Armstrong

  • MNC:

    [2020] QDC 127

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    10 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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