Daly v Hosking[2006] QDC 106

CIVIL JURISDICTION

JUDGE BOTTING

and

And

BRISBANE

DATE 28/04/2006

JUDGMENT

HIS HONOUR: Gentlemen, in this matter I have concluded that I should give judgment for the plaintiff against the second defendant in the sum of $47,496.40. I publish my reasons.

HIS HONOUR: Yes, well, it seems to me that I am obliged by the statute to order the costs be on an indemnity basis and I propose to so order.

So there will be judgment for the sum that I have mentioned. There will be a further order that the respondent's pay the plaintiff's costs in the sum of $2,500 plus such costs as may have been incurred after 22nd of April 2005 on an indemnity basis.

REGISTRY: Brisbane

NUMBER: BD1426 of 2005

Reasons for judgment

Delivered the twenty-eighth day of April, 2006.

12. [1]
    This matter was heard before me on 18^th and 19^th April, 2006.

12. [2]
    The plaintiff was born on 24^th June, 1982. On 26^th May, 2003 she was involved in a motor vehicle accident and sustained injuries for which she sues.

12. [3]
    I was told at the commencement of the hearing that liability had been admitted and that the matter was a “quantum only” one.

Credit issues

12. [4]
    As would be apparent, the plaintiff was twenty years old when injured, and is now twenty-three years old.

12. [5]
    She presents as a personable, intelligent, and articulate young woman.

12. [6]
    She was cross-examined on a number of issues. On a number of occasions she was asked about entries that others had made in documents relating to their dealings with her. In each such case I thought her response appropriate. She was also cross-examined in respect of entries she had made on some forms - and again I thought her explanations appropriate.

12. [7]
    At the end of her evidence I was satisfied that I should accept her as an honest and reliable witness. I have not changed that view.

12. [8]
    The plaintiff called a witness Debra Fleming. She was not challenged, and I accept her evidence.

12. [9]
    The only other witnesses called were two orthopaedic specialists. Their qualifications were accepted, and, of course, their integrity was not an issue.

Pre-Accident matters.

12. [10]
    The plaintiff obtained an OP of 2 at the end of her secondary education. She had been school captain in her final year.

12. [11]
    After school she read journalism at the Queensland University of Technology, and was awarded a degree at the end of 2002. She achieved a grade point average of 6.043 during these studies.

12. [12]
    The plaintiff had a number of different part time jobs whilst she was at the University.

12. [13]
    Prior to the accident she seems to have enjoyed good health. It appears that as a student she had experienced problems with headaches at one stage, but I am satisfied that such problems had ceased several years prior to the accident.

12. [14]
    The plaintiff appears to have enjoyed an active lifestyle before the accident. She enjoyed yoga and pilates once or twice a week, and worked out in her parents' gym. She played tennis “probably every fortnight” and also jogged.

12. [15]
    She obtained part time work with the ABC, and also had casual part time work with Myers at Pacific Fair as a shop assistant. She described the work with Myers as being “not a very intensive sort of job or a job that was very stressful.”^[1]

The Accident and immediate aftermath

12. [16]
    At the time of the accident the plaintiff was driving to her employment at Pacific Fair in a Mitsubishi Colt hatchback. She intended to execute a right turn, and was slowing down and looking to the right when the impact occurred. She had no warning that the collision was about to happen. The car that struck hers was “a rather large Ford sedan,”^[2] and after the collision the plaintiff said her car was pushed forward about thirty metres before it came to rest. The damage to her car was such that it was subsequently “written off” by an insurer.

12. [17]
    The plaintiff recalls holding her neck at the scene of the accident. Her mother came to the scene and took her to work. She reported the accident to her employer, and they immediately arranged for her to consult with a Dr. O'Brien. She says that at the time of this consultation her neck was “starting to stiffen up” - and it was “more stiff” by the end of the consultation.^[3]

12. [18]
    She said that the next day her neck was “very stiff and very sore.”

12. [19]
    She described some of her initial problems as follows:^[4]

12. [20]
    Dr. O'Brien referred the plaintiff to a physiotherapist, and she had about four sessions with that therapist prior to mid-June, 2003. She saw Dr. O'Brien again on 11^th June, 2003, and then commenced treatment with a different physiotherapist.

12. [21]
    The plaintiff did not work on the day of the accident. She did, however, work the next day and found it “difficult.” She was not required to work the following day, and “called in sick” the day after that. Otherwise she did not lose work time with Myers as a result of the accident.

12. [22]
    The plaintiff said that her neck seemed to respond to the physiotherapy. She describes a gradual improvement in her condition in the months following the accident.

Subsequent history

12. [23]
    In July, 2003 she was offered and accepted “a fantastic opportunity to do some back-fill work with the ABC in Mackay.” That work lasted three and a half weeks. She describes her neck during this time as “manageable.”

12. [24]
    Whilst in Mackay the plaintiff was contacted by Myers, and was told that before she could go back on their roster she would “need to obtain full doctor's clearance.” As a result she consulted with a Dr. Millard in Mackay who wrote a letter addressed to Myers.^[5] Dr. Millard also wrote a letter of referral to a physiotherapist in Mackay for “whiplash following an MVA.”^[6] The plaintiff did not if fact see that physiotherapist, but I am entirely satisfied, notwithstanding the letter written by Dr. Millard to Myers, that the plaintiff was continuing at that time to suffer problems associated with her neck injury.^[7]

12. [25]
    On her return south the plaintiff attended for physiotherapy treatment at Mudgeeeraba on five occasions between 18th August, 2003 and 3rd October, 2003. She gave evidence that by the end of this treatment “the inflamation had completely gone ... but it was still a stiffness and causing some headaches on occasion”^[8] and her right shoulder was “still tight.”

12. [26]
    In October, 2003 the plaintiff obtained full time employment with the ABC in Bundaberg. Her work involved spending some time at a computer, and this, she says, caused her neck to give her more problems. She consulted a physiotherapist several times in October and November, 2003.

12. [27]
    I am satisfied that her injuries caused her to take some time off work whilst she was at Bundaberg.^[9] The nature of the work she was required to do, together with the cooperative and (apparently) understanding nature of her boss at that time meant that such absences were relatively easily handled.

12. [28]
    The plaintiff was to have a further consultation with a physiotherapist on 4^th December, 2003, but cancelled that appointment because she had to be in Brisbane that day for work related training.

The second accident - 5^th December, 2003

12. [29]
    As she was returning to Bundaberg after this training the plaintiff lost control of her car in wet conditions and was further injured. She suffered an injury to her lower back and she also “hit [her] head on the window and agitated [her] neck.”^[10]

12. [30]
    The accident caused the plaintiff to have further and increased problems with her neck, although I accept that at the time her primary concerns were in respect of her back injury. She received further physiotherapy for these problems. She gave evidence, which I accept, that after some weeks her neck pain “settled back down to how it was before the second accident.”^[11]

12. [31]
    The plaintiff said that her back injury has, to all intents and purposes, resolved.^[12]

12. [32]
    The plaintiff described the condition of her neck in 2004 as follows:^[13]

Present position.

12. [33]
    The plaintiff returned to Brisbane at the end of 2004. She did so to take up a different position with what she referred to as “News On-line” with the ABC. This position was a part time one, involving her working between three to five days a week.

12. [34]
    In May, 2005 the plaintiff received an award for her work in Bundaberg, and the following month was offered and accepted a position as broadband and on-line producer for the programme known as Australian Story.

12. [35]
    She gave evidence that for the balance of 2005 she usually worked four days a week in this position, and her fortnightly net pay was $1,437.00.

12. [36]
    Her evidence is that this year she has been rostered to work three days a week, but one of those days (Monday) involves very long hours. Her average take home pay during this period has been “about” $1,100.00 a fortnight.

12. [37]
    Her hours have been reduced somewhat because she is now reading for a Masters degree in international relations.

12. [38]
    Since her return to Brisbane she has continued to have physiotherapy treatment on occasions in respect of her neck problems.^[14]

12. [39]
    Her present situation is perhaps well summarised by the following extract from her evidence:^[15]

And later she said:^[16]

12. [40]
    The plaintiff described her present work with the ABC as “really intensive deadline driven work.” Her principal complaints now, so far as the accident related injuries are concerned, are “stiffness and tightness in [the] neck and the occasional headache.” She said she takes short breaks every hour to hour and a half when she is able.^[17]

12. [41]
    Her neck problems have, I find, caused her to lose some time from work, although she is usually able to “make up” such hours as may be lost.^[18]

12. [42]
    Her evidence is that she takes pain killers when she has to. She estimated the costs of these at about $5.00 per month.

12. [43]
    She has not been able to resume tennis playing (at least to the same level and frequency as prior to the accident.) She has attempted to resume pilates, but had some difficulties in doing so, but by doing “modified positions” she has been able to have some enjoyment from this activity. Likewise she hopes to resume yoga - albeit with some modifications to her approach to the exercises. She has, after a break of about eighteen months, been able to resume jogging, although she is mindful to protect her neck whilst doing so.

12. [44]
    She has also been able to resume gym work, but there are some exercises which she avoids or has to take great care in so as not to exacerbate her neck problems.

12. [45]
    The plaintiff gave evidence of difficulties doing things which involve holding her arm above shoulder height - and also spoke of problems she anticipated she might have in the future should she acquire her own property.

Plaintiff's future plans

12. [46]
    The plaintiff hopes to stay working for the ABC until she completes her Masters degree (which she expects will take another two and a half to three years.)^[19]

12. [47]
    Her hope is that the ABC will extend her contract with Australian Story, and also increase it to a full time position.

12. [48]
    The plaintiff was asked as to her ambitions once she has completed those studies. She said:

12. [49]
    The plaintiff described herself as an ambitious person, who is prepared to put in long hours if that is needed:^[20]

Medical evidence

12. [50]
    Mr. Fraser examined the plaintiff at the request of the defendant on 1^st November, 2004. His report is exhibit 6. At the time of his consultation he understood that in the second accident in December, 2003 she did not suffer any injury to her neck.

12. [51]
    Mr. Fraser's opinion is that the plaintiff suffered a strain of the supporting soft tissue structures of the cervical spine in the accident. He considered that she had not suffered any “impairment of bodily function” attributable to her injuries suffered in the May, 2003 motor vehicle accident. Using the appropriate tables^[21] he assessed the percentage impairment of the whole person as zero.

12. [52]
    Mr. Fraser reviewed his opinions when it was realised that there had been some trauma to the head in the December, 2003 accident.

12. [53]
    He expressed the opinion that the second accident “is contributing to her continuing complaint of stiffness in her neck” - and that each accident “contributes equally to her continuing complaints.” He explained this last conclusion as follows:^[22]

12. [54]
    Mr. Fraser did not observe spasm in the plaintiff's on his examination, but conceded that that was something which could “come and go.”^[23]

12. [55]
    Mr. Pentis examined the plaintiff on 15^th June, 2004, and again on 4^th April, 2006. He has furnished three reports.^[24]

12. [56]
    In his first examination Mr. Pentis found there was decreased range of movement in the plaintiff's neck. He too was of the opinion that she had suffered soft tissue injuries to the cervical region of her spine but, unlike Mr. Fraser, he took the view that her injuries left her with “an incapacity and it would approximate a 5-7.5% loss of the efficient function of spine as a whole.” Using the tables he assessed her as suffering an 8% impairment of the whole person.

12. [57]
    He expressed the opinion in his first report that:

12. [58]
    His second report notes that the plaintiff has learnt to adjust around her problems. He notes her complaints of problems with her spine when stressed at work. His assessment of disability remained as before.

12. [59]
    Mr. Pentis gave the following during his evidence in chief:^[25]

12. [60]
    So far as the second accident is concerned, it is clear that at the time of his second examination Mr. Pentice had, inter alia, copies of the Gympie Hospital records. He said that he assumed that “the major problem was the lower back in that one [i.e., arising from the December, 2003 accident] and the neck was probably an aggravation of the first”^[26]

12. [61]
    As one would expect, Mr. Pentis was cross-examined in respect of his opinion that the plaintiff's problems came within the first paragraph of DRE Cervical Category II rather than Category I as Mr. Fraser opined. In re-examination he pointed out that on his examination he observed spasming during his examination of the plaintiff. He was also taken through a number of records, which he indicated confirmed his assumption that the injury to the neck in the December, 2003 accident was no more than an temporary aggravation of the problems arising from the earlier accident.

12. [62]
    One has, then, conflicting opinions by specialists of similar experience and with similar qualifications. They differ not in their assessment of the nature of the plaintiff's injury, but principally in how it should be characterised according to the tables.

12. [63]
    I prefer and accept the opinions of Mr. Pentice. He has had the opportunity to examine the plaintiff on a couple of occasions, one of them being very recent. He has observed the spasming, which the authors of the tables appear to regard as being significant. Mr. Fraser was not asked what his opinion would have been had he observed such spasming, but it seems clear that that is something which the authors regard as bringing an assessment into category II.

12. [64]
    It seems to me that I should also find that the December, 2003 accident did result in no more than a temporary aggravation of the damage done (so far as the neck is concerned) in the earlier accident. I form this view principally on the basis that I accept the plaintiff's evidence that her neck related problems after the second accident were temporary, and that within a short time they returned to the same level as had existed prior to the second accident. This also seems to me, as I understand it, to have been Mr. Pentice's approach.

Conclusions

12. [65]
    In my view, and accepting as I do Mr. Pentice's opinion, I think the plaintiff's injuries should be characterised as coming within item 88 of the Fourth Schedule to the Civil Liability Regulations 2003. I conclude that I should assign an injury scale value, as required by the Act, of 9. In coming to that conclusion I have in mind that it seems to me that the plaintiff's problems arising from the accident cannot be dismissed as being trivial - although they are not as troublesome as some cases which come within this category.

12. [66]
    Counsel for the plaintiff has urged upon me that I would consider this to be a case where Regulation 4 of Schedule 3 of the Regulations is applicable. He submits that the primary injury suffered by the plaintiff is that which relates to her neck, and that I should consider her problems with headaches and with her shoulder as warranting an increase such as is contemplated by the Regulations.

12. [67]
    The regulation applies if the court considers “the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact.”

12. [68]
    I certainly accept that the plaintiff has problems from time to time with headaches which have been caused by the accident I have to consider. However, those headaches are now relatively infrequent, and, as I have mentioned, she claims (and I intend to allow) an amount for the occasional use of mild analgesics.

12. [69]
    So for as the problems with her shoulder are concerned, again I accept that they exist and can at times be troubling for the plaintiff, but they are, it seems to me, from her description not something which increases her disability significantly beyond that which arises from her damaged neck.

12. [70]
    Of course, if one were permitted to make an assessment in accordance with the principles and practices worked out over many years at common law then all these matters could be taken into account and given appropriate weight. That is, as I understand it, no longer permissible, and hence the plaintiff's general damages must be limited in the way which the parliament has provided.

12. [71]
    Those damages amount to $9,800.00.^[27]

12. [72]
    Past economic loss has been agreed at $225.00 plus interest of $7.85.

12. [73]
    Special damages were also agreed at $958.95 plus interest of $54.60.

12. [74]
    I accept that the plaintiff's injuries have resulted in her ability to earn income being diminished. So far, except to a very small degree, that has not resulted in the plaintiff's suffering any financial loss.

12. [75]
    As I have said, the plaintiff appears to me to be an ambitious and intelligent woman. As time goes by I am confident that she will find work which will be both challenging and demanding. I think there is a high likelihood that such work will often require her to work long hours, and equally I think it highly likely that the work will require her to spend long hours working at a computer.

12. [76]
    On the evidence before me I conclude that the plaintiff will, from time to time, have to take time off because of the problems such work will continue to cause her neck.

12. [77]
    It seems to me that thus far the plaintiff has been fortunate in the sense that she has been able to manage her problems primarily because of her circumstances (i.e., part time work and university studies,) and also because of understanding supervisors.

12. [78]
    Her ability to control these problems will be lessened when she undertakes full time employment. That will almost certainly be within the next few years.

12. [79]
    In the circumstances it is not, of course, possible to assess the damages that should be awarded for loss of the capacity to earn by making precise calculations, let alone to a “defined weekly loss.”^[28]

12. [80]
    I am satisfied that the plaintiff will suffer loss as a result of the impairment of her earning capacity, and in making that finding I have had regard to the matters set out in section 55(2) of the Act.

12. [81]
    The assumptions I have made I have endeavoured to set out above. So far as the “methodology” which I use in making my quantification of this loss, I can say no more than I intend to adopt a broad brush approach to the assessment, doing as best I can to find a figure which appears to me to be fair to the plaintiff and to the defendant.

12. [82]
    I assess the damages for such loss at $25,000.00.

12. [83]
    I propose to allow a further $2,250.00 for associated loss of superannuation benefits.

12. [84]
    The plaintiff will have medical expenses in the future relating to her injuries. Her evidence is that she spends about $5.00 a month on analgesics. She will also, from time to time, need physiotherapy. As her lifestyle changes, and as her work pressures increase (as I believe they will) it seems to me that the need for resort to physiotherapy will increase.

12. [85]
    The evidence is that the present cost of a session with a physiotherapist is $55.00. Counsel for the plaintiff has submitted that I should work on the basis that it is likely that ten such consultations will be required each year. I think it more appropriate to work on the more conservative basis that there will be an annual expenditure of about $450.00 on physiotherapy in respect of her injuries for most of the plaintiff's working life.

12. [86]
    I propose to allow $8,200.00 for future analgesics and physiotherapy.

12. [87]
    The plaintiff also claims an amount for future paid care and assistance.

12. [88]
    I accept that she will have difficulty doing some tasks in the future - principally those that require use of the arms at or above shoulder height. I think it probable that on some occasions, albeit rarely, she will need to employ others to do such tasks.

12. [89]
    The compensation for such loss should be modest indeed. I propose to allow $1,000.00.

12. [90]
    I summarise the amounts I have concluded should be included in the assessment:

Summary

12. [91]
    There will be judgment for the plaintiff against the second defendant in the sum of $47,496.40.

12. [92]
    I will hear the parties on the question of costs.

H.W.H. Botting, D.C.J.