DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was born on the 31^st of January 1980.

2. [2]
   On the 26^th of May 1998 she was driving to work at 7.45am in a westerly direction along Windsor Road, Nambour in her Hyundai motor vehicle. She stopped behind another vehicle which was waiting to turn. Her vehicle was struck from behind by a small Mazda sedan driven by the first defendant. The force of the impact propelled her vehicle into the back of the vehicle in front. She sustained a whiplash injury which required medical treatment and physiotherapy. On the 17^th of June 1998 she was driving along King Street Buderim in a Land Cruiser on her way to a physiotherapy appointment. Again she was stationery waiting to turn right when her vehicle was struck from behind by a small sedan driven by the third defendant. The plaintiff says that the second incident aggravated the existing symptoms which related to the first incident.

3. [3]
   Liability as between the plaintiff and defendants is admitted; however the degree of responsibility for any damages as between the first and second defendants on the one hand and the third and fourth defendants upon the other is in issue. Quantum is also in issue.

4. [4]
   It is common ground that the case falls within the second class of cases referred to in the judgment of Windeyer J in Faulkner v. Keffalinos (1970) 45 ALJR 80 at 85, quoted with approval by McPherson J (as His Honour then was) (with whom the Chief Justice and Macrossan J (as His Honour then was) agreed) in Nilon v. Bezzina [1988] 2 Qd R 420 at 427-428:

“There is I think a critical distinction between a supervening happening that prevents a particular damage occurring as a result of the tort and a supervening happening that causes the harm caused by the tort to have added gravity. In the first class of case a supervening event diminishes the damages which flow from the tort: in the second class it merely adds to them, so that the tortfeasor responsible for the first accident remains liable for the harm he caused, which is not merged in the combined result of his wrongdoing and the later event.”

In the circumstances:

“… it has been held sufficient for a plaintiff to show on a balance of probabilities that the breach of duty materially contributed to the injury complained of: Bonnington Castings Ltd v. Wardlaw [1956] AC 613, 620. Once that onus is discharged, there is no compelling reason of policy, in cases such as this, why a plaintiff should be obliged to go further and attempt to disentangle and identify with complete precision the relative contributions of each defendant to his accumulated injury and loss.”  Per McPherson J in Nilon (ibid.) at p 424.

Contribution as between defendants

5. [5]
   The only direct evidence on this issue comes from the plaintiff with some opinion evidence expressed by Drs Boys and Pentis. There is no suggestion on the evidence that the plaintiff had any pre-existing neck or back problems prior to the first incident. No challenge was made to the credibility of the plaintiff. Certainly Mr Liddy for the third and fourth defendants challenged her recollection particularly by reference to direct or summarised comments allegedly made by the plaintiff to the authors of the various reports, but he disavowed any attack on her truthfulness. The plaintiff impressed me as an honest person. There is no suggestion at all in the medical evidence or in the evidence of the occupational therapists, to suggest that she is malingering. She made appropriate concessions. She did not pretend to have a photographic memory. I accept her evidence.

6. [6]
   In the first incident on the 26^th of May 1998, the plaintiff’s vehicle was shunted into the vehicle in front of her by the force of the impact. The plaintiff described damage to the front and back of her vehicle mainly in the bumper bar area, but was unable to give any estimate of the costs of repairs which were undertaken by an insurance company. She gave evidence that the vehicle in front was damaged to some extent. In her quantum statement (Exhibit 15) she states “The force of the collision caused me to be thrown back into my seat and then forward and then back again”. She was wearing a seat belt at the time. I infer that the impact involved considerable force.

7. [7]
   She did not work that day because she suffered bad headaches and a sore neck all day. She consulted Dr Scanlan of North Buderim who prescribed painkilling and anti-inflamatory drugs. She found it difficult to sleep that night and the next morning her neck and the top of her shoulders were very stiff. She saw the doctor again and he prescribed Panadiene Forte and gave her the rest of the week off. During June she had a number of days off as a result of neck and shoulder and lower back pain, and, on Monday the 15^th of June she had to stop work and go home because of the pain. She again consulted Dr Scanlan and he recommended that she attend a physiotherapist on every day of that week. She also took approximately two or three days off her work as a casual at Target as a result of her symptoms.

8. [8]
   As I have noted, the second incident occurred during the course of that week when she was on her way to visit the physiotherapist. Once again she was stationary intending to turn right when her vehicle was struck from behind. She was driving a Land Cruiser and the vehicle driven by the third defendant was a small sedan. In her quantum statement she says:

“This collision felt mild compared to the accident I was involved in on 26 May 1998. I did however receive a definite jolt. I can remember my upper body being forced forward and then being restrained by the seat belt. I find it difficult to say whether my long term injuries were made worse by this second accident. My recollection is that there was some increase in my pain and discomfort but my best recollection is that it was only for a relatively short period.”

9. [9]
   In cross-examination she stated that the vehicle driven by the third defendant was substantially damaged and had to be towed away. She thought the damage was due to the impact of the vehicle with the tow bar on the Land Cruiser. She described the damage to the Land Cruiser as slight involving some scratches to the tow bar. Mr Liddy, for the third and fourth defendants, cross-examined the plaintiff on the basis of instructions received from the third defendant. The third defendant alleges that soon after the incident she asked the plaintiff if she was injured to which the plaintiff replied no. The plaintiff denied this and I accept her evidence. She said she couldn’t recall exactly the conversation. She said that she was flustered and upset as was the third defendant and I accept her evidence in that regard. The third defendant did not give evidence. Mr Liddy also relied on a statement in a report of the Maroochydore Physiotherapy Centre which is Exhibit 1 in the proceedings. Mr Jason Taylor the author of that report states:

“On the 17/06/98 Miss Woodhouse reports being involved in another Motor Vehicle accident on her way to physiotherapy treatment. She reports being hit from behind and having a “jolt” to the neck. This stirred up her symptoms slightly that day but had minimal overall or longterm effect due to the minor nature of the accident.”

10. [10]
    In cross-examination, the plaintiff said that she wasn’t quite certain of what she had said to the physiotherapist. I have to say that the statement referred to above is somewhat equivocal. I am not certain that the statement “this stirred up her symptoms slightly that day but had minimal overall or long term effect due to the minor nature of the accident” is necessarily attributable to something the plaintiff said as opposed to an opinion being expressed by Mr Taylor. His report was tendered by consent and he was not cross-examined. The plaintiff’s position is expressed in an answer to a question from Mr Liddy at page 34 lines 1 to 5 of the transcript:

“But is this a fair summary of your symptoms: you had the accident, you went to the physiotherapist that day, and for the next say week or so you felt that you were worse off than you had been before the accident? Answer: Yes”

11. [11]
    Dr Pentis was prepared to offer an opinion as to the degree to which the second incident contributed to her continuing symptoms. In his report dated the 13^th of February 2001 Dr Pentis states:

“The incapacity is such that it is approximately all up a 10% to 12.5% loss of the efficient function of her spine as a whole. I would assume ⅔ is due to the first accident and ⅓ due to the second accident.”

12. [12]
    His use of the word “assume” significantly affects the weight of that opinion. He expressed that opinion on the basis of a history given to him by the plaintiff. He was prepared to concede in cross-examination that if the circumstances were such that the second incident was only very minor then his opinion would be different. In his report dated 3^rd of March 2001 Dr Boys states:

“This lady does relate persistent strain symptoms in the neck and thoracic region prior to a second motor vehicle accident occurring whilst travelling to physiotherapy on the 19.06.1998. She states that on that day she was driving a Toyota Landcruiser vehicle. She was wearing a seat belt. The Landcruiser was stationary when it was hit from behind by a car. There was no forward impact. This lady relates no loss of consciousness. She can recall no direct trauma to the upper body. She sustained no abrasions or lacerations.

The damage to the Landcruiser was trivial with a scratch on the bumper bar only.

Ms Woodhouse believes that her complaints (neck and lower back) were aggravated by this incident initially. She believes however that the second incident “did not make it markedly worse”.”

He stated further:

“It is my opinion this lady suffers minimal disability as a result of her complaints at this time. Objective evidence of bodily impairment is sparse but in view of this lady’s complains a 2% impairment of bodily function might be quantified reflecting the past effects of soft tissue injury to the cervical and thoraco-lumbar regions.

I believe assessable impairment reflects the injuries sustained on the 26.05.1998. I believe the bump sustained to the rear of the landcruiser on the 19.06.1998 has not given rise to injury or assessable impairment.”

13. [13]
    In cross-examination by Mr King-Scott Dr Boys confirmed that his opinion was based largely on the history given by the plaintiff to which reference is made in his report. In addition to the factors referred to above he noted that she had had no time off work after the second accident. Of course as Mr King-Scott pointed out to Dr Boys she was two days into a week off for physiotherapy at the time of the second incident. Dr Boys did not have any history from the plaintiff as to the damage to the other vehicle involved in the incident which suggests to me that he didn’t ask that question. At page 54 line 30 of the transcript the following exchange took place:

“Q:  Would that cause you to change your opinion as to the contribution of the second accident to her overall condition?

A:  Well if it’s put to me that this lady’s complaints were significantly worsened and it’s put to me that the force of impact was greater than was my understanding at the time, that might be yes.

Q:  Right. And on that evidence, is the opinion of Dr Pentis of two-thirds/one-third unsustainable? Is it reasonable?

A:  It might be reasonable, yes.”

14. [14]
    It follows then that the assessment of a proportion of the responsibility for the plaintiff’s present disabilities must be made largely on the evidence on the plaintiff. On the basis of that evidence I am satisfied that the second incident was more serious than that suggested by Mr Liddy in his closing submission.

15. [15]
    Doing the best I can I find that the first defendant is responsible to the extent of 80 per cent and the third defendant 20 per cent.

Quantum

1. (a)
   General Damages

16. [16]
    I have already referred to a number of symptoms described by the plaintiff initially. After the second incident she continued to receive physiotherapy from the Maroochydore Physiotherapy Centre. She was initially discharged on the 26^th of June 1998 and presented again for treatment on 16^th of September reporting left hip buttock pain, upper thoracic and cervical spine pain, left greater than right. Mr Taylor states “These symptoms were precipitated by periods of sitting and bending at work but it is reasonable to conclude that the injuries sustained in the initial accident contributed greatly to this flare-up”.

17. [17]
    She again had a period of treatment which according to Mr Taylor was successful and she was discharged on 23^rd September 1998. As I have noted the injuries sustained were soft tissue muscular ligamentous injuries to the cervical, thoracic and lumbar regions of the plaintiff’s spine. X-rays and other forms of investigation reveal no pathology.

18. [18]
    I have already indicated that I accept the plaintiff as a witness of truth. It was never suggested that she is malingering, nor was it suggested that she was exaggerating her symptoms. In her quantum statement she describes considerable ongoing difficulties after the last session of physiotherapy with Mr Taylor. She returned to work as a dental assistant on the 27^th of June 1998. During that month she worked part time on a number of days because of pain and discomfort. She changed departments at Target from kitchenware to shoes to avoid having to unpack and lift heavy objects.

19. [19]
    She says during the first month after the accident “I felt a considerable amount of pain, discomfort and stiffness in my neck, shoulders and also my lower back. This was aggravated while working because as a dental assistant I had to bend over patients for lengthy periods of time and maintain fixed positions for lengthy periods. Prior to the accident I had occasional headaches however following the accident I was getting them on a regular basis. They were quite severe and noticeable and annoying. During the first months I would normally be quite stiff and sore when I woke up each morning.” In the following months she found that air conditioning at work aggravated her injuries and this also occurred when she was sitting or standing in one position for significant periods of time. This phenomena is recognised by the medical specialists and also the occupational therapist. Following the second incident she continued to experience a significant degree of pain and discomfort in her neck and lower back. She also had pain between her shoulder blades. She was prescribed a series of home stretching and exercises by Mr Taylor and she did those exercises initially on a daily basis. She found that physiotherapy only provided temporary relief. It would make her feel better for a while and then as soon as she went back to work or did something strenuous her pain and discomfort would quickly return.

20. [20]
    Finally because of the discomfort and pain she was experiencing during her work she was referred by her General Practitioner to Dr Scott Masters who conducts the Caloundra Sports Medicine Centre and who has provided a report dated 10^th of March 1999 which is Exhibit 2.

21. [21]
    As a result of the advice she received from Dr Masters she resigned from her employment with the Sunshine Coast District Health Service on 13^th of November 1998. Since her resignation her symptoms have definitely improved.

22. [22]
    She states “Although I am often still stiff and sore when I wake up in the mornings and still experience severe pain and discomfort on occasion, I am no longer experiencing such pain and discomfort on a daily basis like I was while working for the Sunshine Coast District Health Service.”

23. [23]
    At the present time she still suffers pain in her neck and lower back. She has trouble sleeping and usually wakes up once or twice during the night because of pain or stiffness and on bad nights she wakes up more. Prior to the initial incident she used to go wakeboarding with her friends in summer on most weekends. She had been doing this for six months prior to the first incident. Since the accident she has tried wakeboarding on a couple of occasions however she has stopped the activity because of pain and discomfort.

24. [24]
    She finds it difficult to sit for long periods in a motor vehicle and she still gets headaches probably two or three times a week and worse when she is studying or driving. If she does any slightly strenuous activities such as housework or lifting then she will get pain in the neck and lower back. Standing in one position for too long also causes pain in her lower back. She takes painkillers and anti-inflammatories in average once or twice a week but she tries to avoid taking medication.

25. [25]
    The occupational therapist Lesley Stephenson describes her pain as “patchy”. This is confirmed by the plaintiff in the sense that there are days when she experiences no pain but then it returns upon activity. Under cross-examination Dr Pentis explained the almost 100% increase in percentage disability in his opinion as between his first report dated 22^nd October 1999 (5% to 7½% loss of the efficient function of her spine as a whole) to that in his latest report dated 13^th February 2001. Dr Pentis said that in his experience people with injuries of this type ordinarily plateau out at one to 1½ years after the incident in terms of symptoms. Relying on the plaintiff’s own statements as to her pain and discomfort and disability in his opinion she seems to have not improved hence the increase in percentage impairment. He described her as heading towards a chronic phase.

26. [26]
    The defendants submit that an award under pain and suffering and loss of amenities should be between $15,000 and $20,000. Mr Barnes on behalf of the plaintiff submits that the award should be higher. In argument he referred me to a number of single judge decisions from the quantum notes. The closest to the present circumstances is the matter of Crowther v. Caesar & Pioneer Tourist Industries Pty Ltd, unreported judgment of the District Court of Queensland, District Court Mt Isa plaint no. 48 of 1994, judgment of His Honour Judge McGill SC, 11^th September 1998. Taking into account the award made on that occasion by a very experienced District Court judge and having regard to the other authorities referred to by Mr Barnes the appropriate award under this heading is $25,000 of which $15,000 is attributable to the future. I will allow in her interest on $10,000 at 2% for 2½ years of $550.

2. (b)
   Ecomonic loss

27. [27]
    Shortly before the first incident the plaintiff had commenced a 12 month traineeship with the Sunshine Coast District Health Service as a trainee dental nurse. As I have noted due to her symptoms she finally resigned on medical advice on 13^th November 1998. I accept her evidence that had it not been for the accident she would have continued to work for the Sunshine Coast District Health Service until her training period ended on 20^th of April 1999. In February 1999 the plaintiff commenced studies at the Queensland University of Technology. I accept her evidence that prior to the incidents she had no intention of going back to study in the short term although she believed that in the course of time she would return to tertiary studies. She impressed me as an intelligent young woman. She had received an OP of 12 when she graduated from Maroochydore High School in 1998, a score which obviously somewhat disappointed her, and for which she accepted responsibility. She was closely cross-examined by both Mr King-Scott and Mr Liddy about her future plans. Her evidence was candid and I accept it. She states that when she left school she really had no idea what she would do. The employment with the Sunshine Coast Health Service was a good opportunity, and she had enjoyed the work up until she was injured. I accept her evidence that she wasn’t sure that she regarded dental nursing as a long term career. I accept her evidence that she was planning to get a job with the Health Service and work as a dental nurse for a few years either in the public sector or in the private sector. She candidly told Mr King-Scott in cross-examination that she probably would have gone back to tertiary studies after that.

28. [28]
    As a result of the injury she sustained, in effect, her plans for tertiary education had been bought forward. She commenced in semester one in 1999. She enrolled in a Bachelor of Arts degree, then was accepted to do a combined Bachelor of Arts and Education degree. She plans to be a teacher. Ordinarily if she undertook five subjects per semester she would complete the degrees by the end of 2002. I accept her evidence that due to pain and discomfort associated with long periods of study and sitting in lectures she has reduced her subjects to four subjects per semester so that she will not complete the degrees before the end of 2003 at least.

29. [29]
    Prior to the incident she had worked for some time part time with Target and she has continued to work for Target although she finds that a long shift on a Saturday will prevent her working on Sunday.

30. [30]
    The calculation of economic loss in relation to this particular plaintiff is difficult. The complexity can be demonstrated by the different approaches taken by experienced counsel in this case. Mr King-Scott in his submissions proceeded on the basis of a calculation up to the date of trial based on what she would have earned had she been employed as a dental nurse (Exhibits 9 and 10). Mr Barnes on the other hand approached the assessment in his submission on the basis that I would accept that as a direct consequence of the combined effect of the incidents his client has lost one year of income as a teacher. The income for a school teacher is better than that for a dental nurse. On that basis Mr Barnes placed before me two quantum schedules containing his calculations. In the first, past economic loss (before discounting) is calculated at $41,416.54 which includes the missing year, and future economic loss is a modest claim of $15,000. In the other calculation past economic loss is assessed at $3,740 which is based on a mathematical calculation taking into account the time actually lost up to the commencement of university of February of 1999, and future economic loss then includes the component for the lost year which, in his submission, should be in the order of $40,000. Mr King-Scott approaching it in the way in which I have mentioned came up with a similar quantum when one combines past and future economic loss. Mr Liddy’s submissions are more modest. As a matter of principle, the better approach in my view, is the second approach suggested by Mr Barnes. The figure of $3,740 will be allowed for past economic loss. That figure comprises $280 refund to WorkCover, two days loss from Target of $100 and loss of wages from November 1998 to February 1999 when she commenced university, calculated at $3,360. I will allow interest on that sum at 6% for 2.75 years, which is $617. As to future economic loss, taking into account the lost opportunity as a teacher for one year (see Exhibit 5 which establishes that a first year teacher earns $24,512.80 net) and taking into account a general disadvantage in the workforce as a result of her injuries, and discounting for the usual contingencies and the circumstances of this very young plaintiff, I will allow a global award of $30,000 under the head of future economic loss. I will allow $2,750 for loss of superannuation benefits.

1. (c)
   Care and gratuitous services

31. [31]
    The evidence in this regard comes from the plaintiff and her mother, Helen Woodhouse. The evidence of the occupational therapist, Krista O'Connor, and the evidence of Ms Stephensen, the occupational therapist called on behalf of the plaintiff, is also relevant to this issue. I prefer the evidence of Ms O'Connor. In some respects Ms Stephenson’s report is unhelpful. For example, on page 4 she refers to an Oswestry Low Back Pain Disability Questionnaire and the information provided by the plaintiff to Ms Stephenson in that questionnaire placed her within the severe disability range; described as “pain remains the main problem in this group of patients but travel, personal care, social life, sexual activity and sleep were also affected. These patients require detailed investigation.” In light of my own assessment of the plaintiff and the medical evidence, such a questionnaire is of limited value. More importantly, in cross-examination Ms Stephenson was prepared to attribute the plaintiff’s very poor grip strength in her left hand to the injury sustained in the incidents. There is no medical evidence to support her opinion which she maintained nevertheless. Ms O'Connor’s opinion in relation to issues of care is that the plaintiff can do vacuuming and domestic chores provided she paces herself properly and has regard to her posture. I accept that opinion however as against that the plaintiff’s direct evidence supported by her mother is that she did these chores prior to the injuries and she has been unable to perform a number of household chores since. She has been unable to make her bed, to vacuum, to mop the floor, to load the dishwasher although she can place single items in the dishwasher every now and again, remove clothes from the washing machine or clean the toilets and bathrooms. Mrs Woodhouse estimates that there is 2-2½ hours a week of domestic chores which the plaintiff would have done prior to the accident but are now shared between herself and her younger sister Kate. During the relevant period Kate was away for 13 months and during that time Mrs Woodhouse undertook all the chores that previously had been done by the plaintiff. In addition Mrs Woodhouse has driven the plaintiff to Brisbane to attend university on a number of occasions and she has driven her to and from appointments. The hourly rate for care is agreed at $13. The evidence given by the plaintiff and her mother was unchallenged. They were both impressive and honest witnesses. Mr King-Scott says that the figure should be discounted bearing in mind that as well as her mother and sister the household also consists of the plaintiff’s father and her two brothers. The plaintiff’s evidence in that regard was that her two teenage brothers contribute very little to the household chores which I am sure is well understood by anyone who has resided with teenage males. I will discount the past component slightly and will allow her $4,000 for past care and interest on that at 5%, which is $550.

32. [32]
    The future is of course much more equivocal given that the plaintiff will inevitably move away from the home. She is presently undertaking a conditioning course which is designed to help her deal with her symptoms and to adjust her activities accordingly. There is force in what Mr Barnes says when he says that although she hasn’t done gardening in the past if she does own her own home she will probably have to employ someone to do the gardening if the symptoms persist. Against that, there is the opinion of Ms O'Connor which I accept. Any future component for care should be heavily discounted and I will allow her a modest sum of $5,000 under this head.

33. [33]
    Specials are agreed at $1,790.36 with interest on $568 of that component at 6%, a sum of $94.

34. [34]
    The award therefore is:

1. (a)
   Pain and suffering etc.                $25,000.00

2. (b)
   Interest (on $10,000 at 2% for 2.75 years)               550.00

3. (c)
   Past Economic Loss                3,740.00

4. (d)
   Interest  (6% for 2.75 years)               617.00

5. (e)
   Future Economic Loss               30,000.00

6. (f)
   Loss of Superannuation Benefits               2,750.00

7. (g)
   Past Care               4,000.00

8. (h)
   Interest  (5% for 2.75 years)               550.00

1. (i)
   Future Care               5,000.00

10. (j)
    Specials               1,790.36

10. (k)
    Interest on $568 at 6%        94.00

Sub-Total 74,091.36

Less  Refund to WorkCover      511.97

TOTAL $73,579.39

35. [35]
    I give judgment for the plaintiff as against the first and second defendants as to 80% of that sum, namely $58,863.51 and as against the third and fourth defendants for 20% of that sum, namely $14,715.88.

36. [36]
    I will hear submissions in relation to costs.