DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was born on 21 August 1972 and was injured in a motor vehicle accident on 18 September 2000 when her vehicle was hit by another vehicle doing an abrupt u-turn.

General Damages for Pain & Suffering

2. [2]
   Immediately after the accident her left lower back started to hurt. Her neck started to hurt a lot within a few days. She had 7 weeks off work.

3. [3]
   I find that the plaintiff has experienced continuing problems with her shoulder. No abnormalities were detected in ultrasound, x-rays, CT scan, nerve conduction studies, arthrogram and MRI.

4. [4]
   Dr White diagnosed a musculo/ligamentous strain of rotator cuff and a disability of 5-10% of the whole person. Dr Boys considered that the impairment to the neck is minor, and secondary to the shoulder. In his report he assessed a 0-2% impairment of the upper extremity, but in cross-examination was prepared to agree it may be an impairment of 5 – 8%.

5. [5]
   Dr Cameron found no neurological disturbance to account for the plaintiff’s ongoing neck and shoulder pain and headaches. He noted that the ‘lack of significant improvement is very unusual in view of the nature of the injury she sustained on 18 September 2000.’ He considered that if she has continuing problems these may be due to causes other than the accident. He considered that the headaches were suggestive of migraine, and were not related to the accident. He assessed complete recovery without ongoing impairment.

6. [6]
   In contrast, Dr Todman considered that the headaches which were described by the plaintiff were descriptive of muscle tension type and were the result of the whiplash injury. Dr Todman considered that there is a 10% permanent disability of the whole person related to the cervical spine injury and a 7.5% permanent disability of the whole person related to post-traumatic headaches.

7. [7]
   The Plaintiff has suffered considerable pain after the accident. She took mersyndol and endep. She continues to suffer pain in her shoulder every day; some days are worse than others. She has two different types of pain in her neck. She suffers headaches on average once a week. She takes one pack of Panadol per week and her partner gives her massages.

8. [8]
   I find that the Plaintiff has suffered continuing serious problems and pain. She has endured treatment from a range of medical practitioners, and has had many sessions of physiotherapy. She has needed to take anti-inflammatories and pain killers. She followed advice to swim, and she did prescribed exercises for a period of time.

9. [9]
   She is not able to play the piano and saxophone for very long. She has difficulties playing with her children. She cannot swim without pain in her shoulder. She can still do craft but only for short periods of time. Her relationship with her partner is affected because she is in pain.

10. [10]
    The Plaintiff does the least possible amount of driving. Her partner drives to social occasions. She is fearful of a similar accident. She considers 30 kilometres is physically about as much as she can stand.

11. [11]
    Dr Reddan noted that as at 21 May 2002 the Plaintiff did not describe the morbid fear, the irrational, or excessive anxiety when driving, or the significant avoidance phenomena, necessary in order to make a diagnosis of a Specific Phobia. I accept this evidence.

12. [12]
    Dr Reddan found no evidence that the Plaintiff has developed a psychiatric disorder as a result of the accident, and considered there is no impairment in her capacity to work.

13. [13]
    Dr Reddan considered that the pain associated with driving accounts for her anxiety while driving. She found no evidence that the mood disturbance is in excess of what could be expected given the nature of the stressor or that it has resulted in significant impairment in social or occupational functioning.

14. [14]
    Mr Johnston, Clinical Psychologist, diagnosed a Specific Phobia of motor vehicle travel of moderate severity and an Adjustment Disorder with Mixed Anxiety and Depressed Mood, of moderate severity. In his opinion the accident caused the former, and was one of several factors contributing to the latter.

15. [15]
    Mr Johnston’s report detailed a number of events and difficulties in the Plaintiff’s background, and he described her as a ‘very emotionally fragile individual prior to the accident’.

16. [16]
    I find the Plaintiff had a mild to moderate phobia related to driving which had resolved by the time she spoke to Dr Reddan.

17. [17]
    I find the Plaintiff has suffered anxiety from time to time, sometimes severe, and she feels frustrated and irritable. These feelings result from her change of jobs and continuing pain.

18. [18]
    I award $35,000.00 general damages for pain and suffering.

Economic Loss

19. [19]
    At the time of the accident the Plaintiff was a licensing compliance officer with the Brisbane City Council. Some physical work was involved in site inspections.

20. [20]
    I am satisfied that because of her problems with driving, the Plaintiff was unable to continue to do field work and site inspections, and remained in the office at Carindale. She went on a couple of site visits because there was no-one else, and they were not far from the office. She drove to meetings in the city: sometimes once a week for a couple of weeks; at other times she might not go in for a month. She drove her children to school and preschool on the way to work, about 10 kilometres.

21. [21]
    There is some inconsistency between the Plaintiff’s statements in addressing the selection criteria of the project officer job internal application and her oral evidence at trial as to her physical limitations at that time. She says she ‘talked herself up’, in order to get out of a situation where she could not pull her own weight. I accept this evidence.

22. [22]
    In her job application the Plaintiff said ‘in a role as licensing and compliance officer I am often called upon to urgently attend a site that may be hazardous to the public’. She explained in cross-examination that this was not in the present tense. I accept this evidence, and I consider her statements in the job application do not affect her credibility.

23. [23]
    The Plaintiff is currently a project officer with Brisbane City Council in a temporary 12 month position while somebody else is on maternity leave. She applied for the position because she could not carry out her duties as a licensing compliance officer. She did not tell her boss about her physical condition because she did not want him to have the injury at the back of his mind and she wanted to prove herself to him. She has not complained of her symptoms and has ‘just put up with them’.

24. [24]
    The Plaintiff is a personal assistant to the manager, does administration work for the branch, computer research, word processing, attends meetings, is a divisional coordinator, and sits on a number of committees. Her current salary is $38,000.

25. [25]
    The Plaintiff’s future plans are to be in a supervisory position: project management, rather than administration.

26. [26]
    In August next year the Plaintiff will have to go back to being a licensing compliance officer, or prove to the Council that she is worth keeping; she will go into a deployment pool and stay there for a period of up to 9 months then if she does not get another position during that time she will be made redundant.

27. [27]
    I find that the Plaintiff is a very capable person who is motivated and ambitious and will be able to find herself employment, within Brisbane City Council or elsewhere. She will, however, have some limitations because of her fear of driving and continuing pain. She will also not be able to perform work which involves physical activity, as is required of a licensing compliance officer. She may not be able to sustain long work hours without some time off. I allow a global sum of $20,000 for this loss of earning capacity.

28. [28]
    The Plaintiff missed out on elevation in terms of pay levels because she was not out in the field to get files for proof and she was assessed at Band 4.1, rather than 4.3, with a loss of pay of $15.40 nett weekly. I am satisfied that she continues to lose this sum on a weekly basis in her temporary role. However I consider that it is more probable than not that the competency-based assessment advantage will not continue to be relevant because it is more probable than not that with time she will find a job which is well remunerated, and then suffer no further loss. I accordingly allow the weekly sum of $15.40 for a period of 5 years, not 30 years as claimed. Discounted on the 3% tables this is a sum of $3, 742.20.

29. [29]
    I award $23,742.20 for future economic loss.

Out-of-pocket Expenses

30. [30]
    I allow the out-of-pocket expenses which have been claimed, other than the vacuum cleaner of $3,000, about which I consider there is insufficient evidence to establish need.

Griffiths v Kerkemeyer

31. [31]
    The Plaintiff has claimed $24,562.50 for past gratuitous care under Griffiths v Kerkemeyer. The details of the dates, the names of the service providers and the services provided are contained in Exhibit 2. The need for the services was not challenged in cross-examination.

32. [32]
    I note the decision in McChesney v Singh & Ors [2002] QSC 311, delivered 7 October 2002, and in particular paragraphs 22 – 24. Like McKenzie J, I am bound by the High Court decisions as they currently stand in relation to Griffiths v Kerkemeyer.

33. [33]
    I consider that in relation to future gratuitous care overall the Plaintiff will require 3 hours per week, but from time to time she may become tired combining full-time employment and running a household, and as a result her pain may increase and she may then require assistance up to 5 hours per week. I thus average her need at four hours per week, for 30 years. The parties are agreed on an hourly rate of $15. This is a figure of $60 per week. Discounted on the 3% multiplier tables, this is a figure of $62,280 which I will further discount to allow for the vicissitudes of life. I therefore award $40,000 for the future Griffiths v Kirkemeyer component.

Summary

34. [34]
    I give judgment for the Plaintiff in the sum of $154,579.59 together with the costs of the action. In accordance with the Uniform Civil Procedure Rule (r360) costs are awarded on an indemnity basis.