Murphy v Turner-Jones[2022] QCA 256

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with his Honour Bradley J.
2. [2]
   DALTON JA:  I agree with the order proposed by Bradley J and with his reasons.
3. [3]
   BRADLEY J:  The appellant Mr Murphy was injured in a motor vehicle accident in a slip lane on East Street, Rockhampton in September 2017.  A car collided with the rear of the taxi he was driving.  It was driven by the first respondent (the driver).  The second respondent (the insurer) is the compulsory third party insurer of the driver.
4. [4]
   The insurer admitted liability in full for Mr Murphy’s injuries.  This happened more than two years before Mr Murphy sued the driver and the insurer in this court.  The court was required to determine the damages payable to him by the insurer for the injuries he had suffered because of the accident.
5. [5]
   Mr Murphy’s claim was tried before the learned primary judge over three days from 28 February to 2 March 2022.  The court published reasons for the decision on 31 March 2022.
6. [6]
   On 8 April 2022, the court ordered the judgment amount for Mr Murphy to be $200,776.07.  The court ordered the insurer to pay Mr Murphy’s costs of the proceeding to 21 February 2022 and Mr Murphy to pay the insurer’s costs from 22 February 2022 onwards.  The court stayed $50,000 of the judgment sum “until the finalisation of the respective costs liability of the parties”.
7. [7]
   In this appeal, Mr Murphy seeks significantly increased damages.  He asks for orders that he recover “at least” the pecuniary losses and general damages he claimed.  The claimed amounts for special damages and general damages total over $10 million.  Mr Murphy also asks that he be compensated for past lost earnings based on his gross earnings and not his take home pay.  He seeks $5,000 for exemplary damages.
8. [8]
   Mr Murphy’s grounds of appeal address specific aspects of the trial and the reasons for judgment.  It is convenient to deal with each in turn.

Ground 1

9. [9]
   Mr Murphy says the primary judge erred in not adjudicating on four matters.

Reporting the accident

10. [10]
    The first matter is whether the driver breached a duty to report to a police officer within 24 hours of the accident.  Mr Murphy says this duty arises under s 34 of the Motor Accident Insurance Act 1994 (Qld) (MAIA).
11. [11]
    Section 34 provides that a “person who proposes to make a claim … must ensure that appropriate notice of the accident has been given to a police officer.”  Mr Murphy was the claimant.  He initially reported the accident to the Rockhampton City Police Station, and later made a full report.  The driver was not a person proposing to make a claim.  Any failure by the driver to report would not be a breach of such a duty.
12. [12]
    In 2014, the MAIA was amended to its present form.  Before amendment, a person involved in an accident was obliged to report it to the police if there was property damage (excluding the person’s own vehicle) exceeding $2,500.  Mr Murphy says the court can ignore Parliament’s decision to amend the Act because the amendment deleting this obligation was “enacted on the basis of a mistaken belief” by the then Minister for Transport.  There is no proper basis for the court to do so.

Registration of the vehicle

13. [13]
    The second matter is whether the driver’s vehicle was eligible for registration under s 9 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld).
14. [14]
    Mr Murphy says the VFPS (or “bull-bar”) fitted to the driver’s vehicle did not comply with certain sections of AS4876.1.  He says: it did not have the label or marking required by section 1.4.2; the anchorages used were not designed specifically for the bull-bar, in breach of section 1.5; and the bull-bar was wider than the vehicle, in breach of section 2.3.

Insurer’s compliance with the MAIA

15. [15]
    The third and fourth matters are whether the insurer breached sections 41(2), 42 and 51 of the MAIA.
16. [16]
    By s 41(2) an insurer is required to make a fair and reasonable estimate of damages to which a claimant would be entitled in an action against the insurer, and to make a written offer of settlement as soon as practicable after the insurer receives notice of a claim.  Section 42 applies once liability has been admitted.  It requires an insurer to make payments to or for a claimant for private hospital, medical and pharmaceutical expenses reasonably and appropriately incurred because of the injury.  Section 51 requires an insured to make rehabilitation services available to a claimant on the insurer’s initiative or at the claimant’s request.
17. [17]
    Mr Murphy’s solicitors gave the insurer notice of his claim in October 2017.  The insurer accepted liability in November 2017.  Mr Murphy had surgery on the nerves in his spine in September 2018.  The insurer paid for the cost of the surgery and the hospital expenses.  It also paid or reimbursed the cost of some physiotherapy.  Mr Murphy and the insurer engaged in settlement negotiations from December 2019 to July 2020.  It seems Mr Murphy ended these negotiations when the insurer sought disclosure of his physiotherapy records.
18. [18]
    The insurer declined to pay for Mr Murphy’s consultations with medical specialists in February and April 2020, on the ground that they were not reasonable costs of rehabilitation.  The insurer paid for an appointment with a specialist in July 2020.  Mr Murphy says the insurer did not provide any financial assistance for pharmaceutical costs.

Conclusions on Ground 1

19. [19]
    In his statement of claim, Mr Murphy did not allege that he suffered any loss or damage because the driver did not report the accident within 24 hours, because the vehicle was ineligible for registration, or due to any conduct of the insurer in breach of the MAIA.
20. [20]
    Mr Murphy made no allegation that the driver failed to report the accident to the police.  He did allege that the bull-bar did not comply with AS4876.1.  He did not allege that the driver’s vehicle was ineligible for registration for that reason, or for any other reason.  He did not allege that the insurer breached any of the nominated sections of the MAIA, or any other provision of that Act.
21. [21]
    The driver and insurer had admitted liability for the appellant’s injuries caused by the accident.  The matters to be decided at the trial were the extent of injuries caused by the accident and the damages to which Mr Murphy was entitled for those injuries.  The first three issues raised by the appellant in ground 1 were not relevant to the determination of those matters.  It was not necessary for the primary judge to decide any of them.  By not deciding them, the primary judge made no legal error.  As to the fourth issue, the primary judge heard evidence and submissions on the appellant’s claims for the cost of consultations with medical specialists and pharmaceutical costs.  The primary judge included in the appellant’s damages the amounts for the appellant’s past medical expenses and pharmaceutical expenses for which the primary judge found the defendants were liable.  His Honour included interest on these past expenses in the damages awarded.  The insurer’s failure to pay these costs sooner gives rise to no later loss or damage.

Ground 2

22. [22]
    The second ground of appeal is that the primary judge misinterpreted and misapplied certain statutory provisions, the “common law rules and principles of causation”, the “common law relating to whiplash injuries and high energy trauma”, and a guideline by the American Medical Association.

Statutory provisions

23. [23]
    The statutory provisions raised by Mr Murphy are sections 11 and 12 of the Civil Liability Act 2003 (Qld) (CLA) and sections 3, 4, 7, 8, 11 and 12 of the Civil Liability Regulation 2014 (Qld) (CLR) and Items 86, 87, 90, 91 and 92 in Schedule 4 of the CLR.
24. [24]
    The primary judge made no reference to these sections of the CLA or the CLR.  The CLA provisions deal with general principles, including factual causation, the scope of liability, and the onus of proof.  Save for the general assertion of error, Mr Murphy makes no criticism of his Honour’s approach to these matters.  No error, misinterpretation, or misapplication is apparent in the reasons.
25. [25]
    His Honour did consider Items 86, 87, 88 and 89 in Schedule 4 of the CLR and applied sections 2, 5, 8, 9 and 10 of Schedule 3.
26. [26]
    His Honour reasoned in this way:

“[39] Section 2 of Schedule 3 requires the court to consider the range of ISV as stated in Schedule 4 for the injury but does not confine the assessment of ISV to a number solely within the range.  As may be seen from s 2(2) it is the intent of the ISVs within the schedule to reflect the level of adverse impact of the injury on the injured person.  I respectfully adopt the analysis of McMeekin J in Allwood v Wilson ([2011] QSC 180, at [19]-[24]).

[40] I accept Dr Fitzpatrick’s opinion^[1] that there are psychological factors at play, however, Mr Murphy has not pled nor proved any psychological injury or mental disorder as being caused by the motor vehicle accident.  As Dr Fitzpatrick distinguishes between a pain syndrome and psychological factors at play I do not accept it is proper in Mr Murphy’s case to categorise the pain syndrome as a psychological reaction.  Therefore, I conclude that the pain syndrome ought not to be considered “merely as a feature of the injury” (Civil Liability Regulation 2014 (Qld) Schedule 3, s 5(2)).  In particular, in applying s 8(3) and s 9 of Schedule 3, I consider it proper that regard is had to the pain, suffering and loss of amenities of life actually sustained by Mr Murphy as a result of the motor vehicle accident.

[41] Although I accept Dr Fitzpatrick’s opinion that Mr Murphy has sustained a 0% WPI as a result of the motor vehicle accident, on an organic basis, I also accept Dr Fitzpatrick’s opinion that Mr Murphy has suffered from a pain syndrome as a consequence of the motor vehicle accident.  As set out by s 10 of Schedule 3, the 0% impairment that I accept is an important consideration, but it is not the only consideration, in assessing an ISV.

[42] Dr Fitzpatrick’s opinion of Mr Murphy suffering from pain syndrome accords with my own observation of Mr Murphy – that he complains of a great deal of pain, particularly in his cervical spine but also elsewhere in his body.  The pain syndrome as opined by Dr Fitzpatrick does not have an item number or category within Schedule 4 of the Civil Liability Regulation 2014 (Qld).

[43] Although orthopaedically accepting Dr Fitzpatrick’s diagnosis, suggests that Mr Murphy’s injuries ought to be classified as an Item 89 – minor cervical spine injury.  In my view Dr Fitzpatrick’s acceptance of the pain syndrome, which I also accept, makes it appropriate that the injury be categorised as an Item 89.  Mr Murphy’s injury does not at all meet the descriptors of an Item 89 injury, that of no ongoing symptoms that are merely of a nuisance value.  Mr Murphy’s injury however does not fit in any other descriptor of a cervical spine injury within Schedule 4.

[44] Mr Murphy’s injury cannot be classified as an Item 86, serious cervical spine injury, because, as explained by Dr Fitzpatrick, there is no loss of motion segment integrity, there is no nerve root compression or damage, nor is there surgery on the cervical spine apart from the ablative surgery, nor any fractures of the cervical spine.

[45] Similarly, Mr Murphy’s injury does not fit with any of the descriptions of Item 87 – moderate cervical spine injury – fracture etc as there is no fracture, disc prolapse or nerve root compression or damage.

…

[47] Whilst I would conclude that Mr Murphy’s injury does not fall within the comment or description of Item 88, it does seem to me appropriate to categorise Mr Murphy’s injury as a soft tissue injury of the cervical spine.  I further consider it is appropriate to conclude that the injury is moderate, notwithstanding that the injury has not caused moderate permanent impairment and that there is no objective evidence of the moderate permanent impairment.  I further accept Dr Fitzpatrick’s opinion there is no radiological injury supportive of soft tissue injury.  Despite these difficulties, in my view it is proper to conclude that the injury ought to be classified as a moderate cervical spine injury soft tissue injury because of the great deal of pain that Mr Murphy had suffered, and its negative impact on Mr Murphy’s activities of daily living.  I conclude it is appropriate to assess the ISV at 10, that is, at the top of the range for an item 88.”

27. [27]
    The primary judge noted Mr Murphy’s submission that his injury should be categorised as an Item 86 (Serious cervical spine injury) or Item 87 (Moderate cervical spine injury – fracture, disc prolapse or nerve root compression or damage) because a loss of lordosis constituted a loss of motion segment integrity.  A loss of lordosis is a loss of curvature, so that a section of the spine is straighter than it should be.
28. [28]
    At [35] of the reasons, his Honour concluded Mr Murphy’s submission was “devoid of any evidentiary basis”.  His Honour then explained:

“[36] Dr Todman^[2] has not opined that there is a loss of motion segment integrity, Dr Fitzpatrick said there was absolutely no loss of motion segment integrity and further Dr Salinitri^[3] has advised that the loss of lordosis as shown in the x-ray of 2 December 2019 is secondary to Mr Murphy’s thoracic kyphosis (of which there is no evidence relating that to the motor vehicle accident).  I reject therefore Mr Murphy’s submission that his injury ought to be classified as an Item 86 or 87.”

29. [29]
    In his written submissions, Mr Murphy says the primary judge’s decision to allocate an ISV for a moderate injury (i.e. Item 88) has “no logical explanation”.  I reject Mr Murphy’s submission, having regard to the passages extracted above.

Common law and the American Medical Association guideline

30. [30]
    It is apparent from the primary judge’s reasons that his Honour applied the statutory principles in s 11 of the CLA (about factual causation and scope of liability) to decide whether the driver’s breach of duty caused the particular harm alleged by Mr Murphy.  His Honour applied the statutory provisions for the categorisation of Mr Murphy’s injuries in the CLR.  No common law issue arose for determination.
31. [31]
    By the “common law of whiplash and high energy trauma” Mr Murphy seems to mean that the court should have ordered the insurer to pay him damages in an amount determined by damages assessed in common law claims before the enactment of the statutory regime in the CLA and CLR, or in claims in other jurisdictions, including the United States of America, where the CLA and CLR do not apply.  I reject that submission as contrary to the statute law of Queensland.
32. [32]
    Mr Murphy says whether the accident was a necessary condition of the occurrence of his injuries, and whether his injuries are serious, moderate or minor, ought to have been determined according to his own interpretation of the radiological images, a 2014 medical textbook, and the fifth edition of the American Medical Association’s Guides (AMA5).  Like his submissions at the trial, Mr Murphy’s submissions on the appeal are not evidence.
33. [33]
    The primary judge considered the evidence about Mr Murphy’s injuries given by the medical specialists who gave evidence at the trial.  I reject Mr Murphy’s submission that his Honour erred in doing so.  The acceptance of the expert opinion evidence and rejection of Mr Murphy’s submissions was not a misinterpretation or a misapplication of the law or AMA5.

Ground 3

34. [34]
    The third ground of appeal is that the primary judge “erred in law by holding that section 34 of the [MAIA] is not relevant to the issue of causation.”
35. [35]
    The reasons do not include a finding to this effect.  If the primary judge did express that view during the trial, then, with respect, it was quite correct.
36. [36]
    As noted above, s 34 provides that a “person who proposes to make a claim … must ensure that appropriate notice of the accident has been given to a police officer.”  Mr Murphy’s injuries and the assessment of his damages are not affected by whether the driver reported the accident.  It has no relevance to the matters to be decided by the court to determine Mr Murphy’s damages.

Ground 4

37. [37]
    The fourth ground is that there was a breach of natural justice and that the primary judge had “regard to matters that he was required by law not to pay regard to and failed to pay regard to matters that he was required by law to pay regard to”.
38. [38]
    Mr Murphy did not identify any law, statutory or otherwise, that required the primary judge to pay regard to any matter that his Honour failed to do.  Nor did he identify anything that his Honour was bound to disregard that was taken into account.
39. [39]
    In his written submissions, Mr Murphy challenged the primary judge’s findings about the speed at which the driver’s vehicle was travelling when it struck his taxi.  This challenge was based on Mr Murphy’s interpretation of photographs and what he called “scientific methods for estimating the speed of cars in crashes”.  He referred to a journal article on this topic.
40. [40]
    Mr Murphy called no expert evidence about these matters.  The primary judge made findings based on the evidence before the court – from the eyewitnesses, in documentary form, and from Mr Murphy’s recording of the moment of impact on his dashboard camera.  There was no error in doing so.
41. [41]
    Mr Murphy complains that the primary judge misstated the evidence of Dr Salanitri, a radiologist.  In [36] of the reasons, extracted above, the learned primary judge noted Dr Salanitri to have advised ‘that the loss of lordosis as shown in the x-ray of 2 December 2019 [was] secondary to Mr Murphy’s thoracic kyphosis”, observing there was “no evidence relating that to the motor vehicle accident’.  Mr Murphy called Dr Salanitri as a witness at the trial.  In his evidence in chief, Dr Salanitri explained that: lordosis is the normal inward curvature of the spine in the cervical and lumbar regions; and kyphosis is the normal outward curvature of the spine at the thoracic region.  Dr Salanitri said the loss of the expected gentle curvature in Mr Murphy’s spine “is probably secondary to the kyphosis in [Mr Murphy’s] mid-thoracic spine, as they are related to each other.”  His Honour’s summary of Dr Salanitri’s evidence was accurate.
42. [42]
    Mr Murphy also says the statement, in [75] of the reasons, that his “condition has improved considerably both prior to and since the ablative surgery” has no basis.
43. [43]
    This short statement is a fair summary of the extensive medical evidence.  Dr Fitzpatrick, a consultant orthopaedic surgeon, examined Mr Murphy on 13 July 2018 and provided a report on 20 July 2018.  This was about ten months after the accident and about two months before the surgery.  His Honour accepted Dr Fitzpatrick’s evidence, finding it to be logical and very detailed.  In oral evidence, Dr Fitzpatrick said the MRI scans of Mr Murphy’s cervical spine were normal, other than showing some age-related degeneration at C5-6, and a bone scan with SPECT^[4] was normal as well.  It was Dr Fitzpatrick’s opinion that, by then, Mr Murphy was not suffering from any serious organic injury.  Rather, in Dr Fitzpatrick’s view, he was suffering from a pain syndrome.  This was evidence of a considerable improvement from the position of Mr Murphy shortly after the accident.  Dr Salanitri reported on radiological investigations from about 12 to 20 months after Mr Murphy’s surgery.  These were two MRIs in September 2019 and x-rays in December 2019 and May 2020.  As noted above, Dr Salanitri found no enduring consequence of the accident.
44. [44]
    The primary judge summarised this medical evidence in paragraph [75] to explain why an average of the amount Mr Murphy had spent on medical and pharmaceutical services over the four and a half years since the accident was not a fair indication of his medical needs over the balance of his life.  His Honour had already observed at [69] that $3,966.90 of Mr Murphy’s $5,118.75 claimed accident-related Medicare payments (about 77%) were for the period between the accident and 10 October 2018, shortly after the surgery.  Given the state of the evidence adduced by Mr Murphy, the finding that he should be allowed $10 per week for future medical expenses, based on an average of $35.20 per week to the time of trial, was appropriate, if not somewhat generous to Mr Murphy.

Ground 5

45. [45]
    Mr Murphy says the primary judge erred in “holding” that certain documents were lawfully provided to the insurer pursuant to part 4 of the MAIA.
46. [46]
    This complaint does not concern anything that happened at the trial or any part of the judgment order or the reasons.  It is about the primary judge’s decision in November 2021 to refuse to make an order that the insurer return copies of medical records and communications about Mr Murphy, which the insurer had obtained from the authors and recipients of the original documents.
47. [47]
    As the respondents’ written submissions note, there was no appeal from that interlocutory decision.  It is not a basis for challenging the findings of the primary judge after the trial or for setting aside the orders made on 8 April 2022.

Ground 6

48. [48]
    The sixth ground of appeal contends that the primary judge “did not exercise adequate control” over the trial and that the trial “departed in serious respects from the usual judicial process.”
49. [49]
    Mr Murphy identifies four specific matters.
50. [50]
    The first is that the primary judge allowed the respondents to tender documents they had obtained on non-party disclosure, that were not in their List of Documents, but of which Mr Murphy had copies.  The second is that the respondents complained at the trial about the way Mr Murphy had filed medical evidence.
51. [51]
    These things are not uncommon occurrences at trial.  Some might be thought common.  They show neither a lack of control nor a departure from proper judicial process.
52. [52]
    The third and fourth matters concern Mr Murphy being cross-examined.
53. [53]
    At the trial, Mr Murphy relied on his own evidence, in the form of affidavits filed in the court.  The respondent required Mr Murphy for cross-examination.  Mr Murphy says the primary judge “put pressure on [him] to take the stand”.  His Honour explained to Mr Murphy that if he wished to rely on his own evidence, then he would be obliged to be available for cross-examination.  This was appropriate advice for his Honour to give a self-represented litigant, albeit one with a law degree.
54. [54]
    Mr Murphy says he was questioned by the respondents’ counsel about documents that were not in either party’s List of Documents, “including Transport Department documents and tax records from more than 3 years prior to the crash.”  Some of this cross-examination was about Mr Murphy’s credit.  It does not appear any credit questions went beyond what is permitted.  The primary judge found Mr Murphy was dishonest about his health status when he applied for a commercial driver’s licence in October 2014.  This did prevent his Honour forming the impression that Mr Murphy was a credible witness.  Cross-examination about his actual earnings before the accident is also the subject of complaint.  Mr Murphy’s actual earnings before the accident were a relevant topic for questions at the trial.  These were questions proper.

Other matters

55. [55]
    In addition to the six grounds of appeal, Mr Murphy raised three other matters in his appeal documents and oral submissions: summary judgment, delivery up of documents, and suppression of parts of the reasons.

Summary judgment

56. [56]
    About four months before the trial, the primary judge had refused to order summary judgment for Mr Murphy on his claim.  This appeal is not against the refusal of summary judgment.  The time for such an appeal passed before the trial.
57. [57]
    From the subsequent judgment, and the points raised in this appeal, it is apparent that there was a need for a trial of Mr Murphy’s claim to determine the amount that should be awarded.  The disputes between the parties about the nature and extent of any permanent injury or subsequent disability Mr Murphy suffered and about any economic and other loss or damage Mr Murphy suffered could not have been determined without the presentation of evidence, the examination and cross-examination of witnesses, and the examination of admissible documents at a trial.

Delivery up of documents

58. [58]
    Mr Murphy also seeks an order that the insurer gather up and send to him certain medical documents.
59. [59]
    As noted above, on 20 November 2021, before the trial, Mr Murphy asked the court to order the insurer to gather up and deliver to him certain documents produced by others in response to notices of non-party disclosure.  The court did not do so.  The documents contain statements about Mr Murphy’s medical history, diagnoses, illnesses, and admissions to care.  Mr Murphy contests the accuracy of these statements.  The documents were lawfully obtained by the insurer pursuant to notices issued by the court.  Mr Murphy’s interests are protected by the usual obligations attaching to the use of documents produced in this way.  In the circumstances, I would not make the order Mr Murphy seeks for the documents to be delivered to him.

Suppression of parts of the reasons

60. [60]
    Finally, Mr Murphy says paragraphs 11, 13-15, 21, 26-30, 34, 43, 44, 52-54, 58-61, 62, and 69 in the primary judge’s reasons contain “unconscionable statements”, have “no basis in law or evidence” and concern matters that are beyond the court’s jurisdiction.
61. [61]
    These paragraphs refer to evidence adduced by Mr Murphy and the insurer at the trial on which his Honour relied, or declined to rely, in determining the judgment that was pronounced.  These form part of his Honour’s reasons.  I would not supress them.

Final disposition

62. [62]
    The appeal should be dismissed with costs.