DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was injured in a motor vehicle accident on 7 September 2003.  Liability has been admitted and it remains to assess the plaintiff’s damages.  Because of the date of the accident, these must be assessed in accordance with the Civil Liability Act 2003 and the Civil Liability Regulation.

Circumstances of the accident

2. [2]
   The accident occurred when the plaintiff was driving the first defendant’s vehicle, with the first defendant the front seat passenger, south along the South East Freeway at night: p 10.  The first defendant, who the plaintiff said was very drunk, unexpectedly pulled on the hand brake, and as a result the plaintiff lost control of the vehicle, and it crashed into a cement lane divider, at a point where an exit lane branched off:  p 10.  The plaintiff was thrown forward and then back, and the vehicle rolled and went into a ditch.  The first defendant got out, the plaintiff telephoned for assistance, and some other people arrived and helped the plaintiff out of the car:  p 11.  She said at this stage her back was really hurting and she was in shock, and she burst into tears when she got out of the car.

3. [3]
   The plaintiff was taken by ambulance to the Logan Hospital, where she was examined and x-rayed (p 11) and in time allowed to go home:  p 13.  She was taken home by her parents.

Consequences

4. [4]
   The plaintiff went to see a GP, Dr Murphy, two days after the accident:  p 13.  The same day a photograph was taken showing some bruising on the plaintiff:  Exhibit 2.  The following day she saw another GP, Dr Maclaverty.  Four days after the accident some further photographs of the bruising were taken:  Exhibit 3.  They show quite extensive bruising, much of which appears to be underneath where a seatbelt would be worn.^[1]  In the few days after the accident, the plaintiff had pain particularly in the lower back, left shoulder and neck, and in connection with the bruising from the seatbelt, and cuts on the right knee:  p 13.  She had great difficulty in doing anything, even getting in or out of bed, or going to the toilet, or getting up even a small number of stairs.  She received considerable assistance at this time from her parents.

5. [5]
   About 10 days after the accident she began physiotherapy treatment which continued for 28 sessions:  p 13.  She found that helpful in easing the pain in her neck, and some pain in her lower back, although she could not roll on to her stomach in the early stages because of the bruising, which made it hard for them to treat her lower back:  p 14.  When she finally was able to lie down on her stomach, she discovered that it was very painful putting any weight on her knees.^[2]  She assumed that this was bruising from the accident, and expected it to go away, but it did not.  The right knee was much worse than the left.  She was unable to kneel on the ground:  p 26.

6. [6]
   In October while out with her mother she had a fall, which stirred up the symptoms in her shoulder and back: p 14.  She mentioned this to the physiotherapist, and after receiving some further treatment her symptoms subsided to what they had been before that fall.

7. [7]
   The plaintiff was quite emotionally upset by the accident^[3] because of the shock of the accident, and because of the extraordinary behaviour of the first defendant which led to it.  She was referred to a psychologist, but did not find her treatment of assistance, and stopped seeing her:  p 15.  She did, however, find it helpful to talk to her mother about matters, and claimed to have spent quite a bit of time doing this, which she said was quite helpful to her.  Initially she had never wanted to drive again, but her mother encouraged her to get back into a car, by easy stages, and by three months after the accident she was able to make short local journeys avoiding traffic:  p 15.

8. [8]
   In March 2004 she drove to Toowoomba^[4] for the first time since the accident, taking over three hours:  p 15.  During the journey she was constantly afraid that something else awful would happen to her:  p 16.  She also had to stop from time to time and change position to ease the pain in her back, her right knee and to some extent her shoulder:  p 17.  She said that was the last time she had made such a long journey, and on that occasion she did not feel up to driving home, and her mother had to come to Toowoomba and drive home:  p 17.  She continues, however, to make local journeys.

9. [9]
   The plaintiff’s left shoulder is generally symptom-free, so long as she does not try to do things involving raising her arm above shoulder height, such as hanging out washing: p 24.

Plaintiff’s background

10. [10]
    The plaintiff was born on 6 August 1980:  p 5.  She was educated to part way through year 10, leaving school about June 1995; she said that she was bullied at school:  p 6.  She has no formal qualifications.  She obtained employment about a year later, and worked as a checkout operator for about eight or nine months, leaving because her asthma was getting worse:  p 6.  She was unemployed again for some time, and then worked at a fast food outlet from 21 December 1997 until 7 June 1998:  p 7.^[5]  She said she left because she was physically assaulted by her manager.  She did not obtain other employment at that time, and moved out of home for just over two years:  p 8.

11. [11]
    On 6 December 2002 she started work as a delivery driver at a pizza outlet.  She enjoyed that work, but gave it up on 6 April 2003 because she needed to get her vehicle repaired to do the job and could not afford the repairs:  p 9.  There was no further employment until after the accident.  The plaintiff said, however, that she had, prior to the accident, planned to return to work as a delivery driver for a pizza outlet, and she also had in mind becoming a taxi driver:  p 10.  Her brother was a store manager at a pizza outlet, and her mother worked at a taxi call centre, so she had some contact with that industry as well.

12. [12]
    On 30 August 2004 she went back to work as a delivery driver at a pizza outlet:  p 20.  She thought at that stage that she could handle the work, but she found the driving too stressful and too upsetting, and in addition the pain in her back and her right knee became worse.  She responded to this by doing less and less driving, to some extent doing work in the shop in its place.  Ultimately however she gave up this work.

13. [13]
    She said that she was planning to go to TAFE and get the equivalent of year 10, and do an office administration course and medical terminology course and hoped in getting a job as a receptionist, where she could sit down most of the time and get up when she needed to:  p 21.  She no longer believes that she can drive as a career:  p 22.  In 2005 she did some volunteer work as a shop assistant in a Salvation Army store:  p 22.  This produced some increasing symptoms, but she believed she could cope, although she gave it up when she became ill; it was soon after this that she was diagnosed with diabetes.

14. [14]
    She has recently been doing some unpaid work on a Friday night for a couple of hours to help out in the pizza business managed by her brother. This does not involve driving, or obviously any pressure to perform, and she enjoys doing it: p 23.

15. [15]
    She also said that she had been through a Commonwealth Rehabilitation programme, but that had not really helped: p 22.  She conceded that there were things that they had told her to do, such as joining an employment agency and looking regularly at newspaper advertisements, which she had not done, but she said she looked regularly on the internet and had made some other efforts to obtain employment.  She also said that she had attempted to get employment at the call centre where her mother worked, but had not been successful, although a woman from the Commonwealth Rehabilitation Service who had dealt with her, and who had told her that jobs were not available in that call centre, had subsequently started work there:  p 22.  This particular incident is difficult to accept, but there is no evidence to the contrary and I cannot reject the plaintiff’s evidence simply on this basis.

16. [16]
    The plaintiff has had asthma problems for a long time, which at one stage became sufficiently severe for her to require regular hospitalisation: p 30.  Part of the problem at that time was that she was not compliant with medication, and she was continuing to smoke:  p 31.  She still has some problem with asthma now, though she is taking her medication; it is stirred up by a number of things, including exercise.^[6]  She said she often used an inhaler and kept her breathing under control in that way.

17. [17]
    Apart from the asthma, she has had other medical problems. She had injured each of her ankles in separate incidents in the early 90s, and that has produced some pain over the years which has sometimes interfered with what she would otherwise have been doing, although she said that over the last few years she had not had much trouble with them.^[7]  The explanation for this may be simply that she had been doing less than she was doing in the past.  Six months before the trial she was diagnosed as having diabetes:  p 21.  For this she is taking medication.

Medical evidence

18. [18]
    Dr Maclaverty wrote on 15 October 2003 to someone that he had seen the plaintiff three times, and confirmed that she suffered severe bruising in the seatbelt distribution, and bruising around the neck.^[8]  She complained of pain in the neck, lower back, right arm and both knees.  On 3 June 2004 he wrote again^[9] advising that there had been nine visits since his previous letter, and noted that by the end of January 2004 the haematomas had all but settled, but the plaintiff was still complaining of left shoulder pain and left upper chest pain.  On 5 May there were complaints of right knee pain, which Dr Maclaverty noted had also been mentioned at the initial consultation, and lower back pain, and increasing depression.  There was some persisting problem with the left shoulder.  The doctor began to treat the depression with medication, and referred her to a psychologist for assessment.  Dr Maclaverty thought that as at June 2004 the plaintiff did have a physical problem associated with pain, but also that there was an emotional overlay as a result of depressive illness, and possible post traumatic stress disorder.

19. [19]
    The plaintiff received psychological testing in November 2003 by a psychologist whose reports are in evidence, but who was not called. A personality assessment inventory test which was administered suggested that she was currently experiencing concern about her health and that her health problems were complex and difficult to treat successfully. She was also experiencing anxiety when reminded of the accident, and significant fear associated with driving a motor vehicle, and difficulty concentrating for an extended period. She had lost hope for the future and was no longer interested in activities. A detailed assessment of post traumatic stress revealed significant elevations in a number of diagnostic scales. The psychologist concluded that she filled the diagnostic criteria for post traumatic stress disorder, and for major depressive episode.^[10]  She recommended a course of counselling but her prognosis was guarded.

20. [20]
    A further report was provided on 5 April 2004 after there had been seven sessions.^[11]  The depression had reduced to mild, with no anxiety or stress on testing.  She was less preoccupied by the accident and was able to drive with reasonable confidence.  She had been forced to give up pizza deliveries again because of feeling anxious in traffic, and there were also limitations caused by physical discomfort.  The consultations continued until 13 September 2004, and a further report on 20 September 2004 indicated that although there had been some initial recovery there had been a significant set back as a result of pain in the right knee.^[12]  Depression, anxiety and stress measured in September 2004 were all again elevated, indicating moderate to severe depression, mild anxiety and moderate stress.  The situation was worse than in March, but less elevated than those obtained in January 2004.

21. [21]
    On 24 June 2004 the plaintiff began a rehabilitation course.  On initial assessment it appeared that her functional capacities and range of motion in the right shoulder were reduced, although the measured range of motion was inconsistent.^[13]  The physiologist expressed the opinion that the plaintiff considered herself to be severely restricted by her injuries, but suggested that the restrictions were largely not physical.  On 22 July 2004 the physiologist reported that the plaintiff’s attendance had been good, but the sessions in recent times had become dominated by emotional issues in respect of which she was not trained.^[14]  The plaintiff was not responsive to advice on body mechanics.  On 28 July 2004 a progress report noted that there had been some improvement from the programme but that the plaintiff required constant correction on her body mechanics, which could lead to severe emotional outbreaks.^[15]  The opinion was expressed that the plaintiff had a capacity to enter the workforce in a position that did not require her to participate in constant bending.  In a discharge report on 26 August 2004 improvements in physical capacity was recorded and attendance was said to be excellent but there were still problems reported with emotional outbursts.^[16]  The plaintiff had reported that the back and left shoulder pain had been assisted by the programme but not the pain in the right knee.

22. [22]
    On 15 July 2004 there as a functional capacity evaluation report prepared by a rehabilitation consultant for the Commonwealth Rehabilitation Service.^[17]  At that stage she was complaining of constant pain in the left shoulder, low back and right knee, increased by use of the left (dominant) arm, sitting upright and walking.  Some restriction on some movements of the left shoulder were found on examination but these were regarded as not having any impact on function.  There was a consistent performance during the testing.  She was found to be unable to crouch because of right knee pain and had reduced capacity in a number of areas.  She was thought able safely to manage work in a “sedentary to light physical demand” category, though it was noted that she was unable to reach to or work at ground level repetitively, and she needed to alternate between sitting and standing.  It was thought that she was suitable to work as a checkout operator, a console operator or a call centre operator.  It was suggested that a workplace assessment by an occupational therapist was recommended before she undertook any particular employment to ensure that it was within her capacity.

23. [23]
    The plaintiff was seen by Dr Gillett, orthopaedic surgeon, on 16 September 2004 for the purposes of a report.^[18]  Dr Gillett noted that the physiotherapy had helped the neck problem, and that overall the treatment had reduced the pain in the left shoulder and the lower back.  At the time of the examination she was complaining of pain in the tail bone area on sitting or lying down, and pain in the right knee on standing, lifting or bending.  There was difficulty in sleep because of pain.  The knee also caused problems with stairs, squatting, driving or walking, and felt insecure at times.  Low household tasks give her trouble.  There were no continuing problems with the neck, and the left shoulder was generally not a problem unless she did something like hanging out washing or lying on her left side.  She said that she needed a lot of assistance during the first three months after the accident, and she was still receiving some assistance with some things.

24. [24]
    On examination there was a full range of movement of the neck and no pain. There was some loss of abduction of the left shoulder, and a painful, palpable click in the left shoulder girdle. The rotator cuff was intact. There was pain in the lumbosacral area and the sacrococcygeal area, with tenderness over the sacrum and coccyx. There was some reduction in motion on the lower spine, and straight leg raising was 80 degrees.  There was no neurological deficit in the legs.  Waddell signs were negative.^[19]  There was crepitus in both knees, more marked in the right, which produced a positive Clark’s sign for patella compression.^[20]  X-rays of the neck and left shoulder were normal, and one of the coccyx showed no clear sign of fracture.

25. [25]
    In Dr Gillett’s opinion the plaintiff was suffering from chronic strain injury in the lower back, a traumatic direct blow injury to the right knee and minor residuals of her left shoulder injury.  He thought her symptoms were impacting adversely on her employment.  The only recommended treatment was self management of the condition.  Using the AMA five guidelines he assessed her as having a 1 per cent impairment of bodily function from the left shoulder, a 5 per cent loss of the leg function because of the problem with the right knee which equates to a 2 per cent loss of whole person function, and a 3 per cent impairment of bodily function associated with the lower back injury, although he noted that this was not something which was defined clearly by the AMA five categories.  Pain had already been taken into account in making these assessments, although he noted the possibility of psychological issues.  In relation to the knees, he thought that the right knee had aggravated a pre‑existing degenerative process, but that most of her symptoms were attributable to the aggravation.  She was now best suited to an occupation which involved minimal manual handling and an ability to change position on a frequent basis such as in an office-based environment where she can get up and move around as need be.

26. [26]
    In oral evidence Dr Gillett expressed the opinion that, for the retro-patella surface to have been damaged by the accident, she would have had to have had a direct blow to the right knee and a continuation of symptoms since the accident:  p 47.  However, he also said the period of immobility after the accident may have explained a lack of symptoms at that time:  p 53.  But for the accident, and assuming that the injury in the right knee was caused by the accident, her right knee now would probably be like her left knee:  p 49.  In time, for someone who was of the plaintiff’s weight, degeneration would ordinarily lead to symptoms in the late 30s to 40s, perhaps earlier:  p 49.  Reducing weight would help postpone this.  Exercise could help in the management of the condition, but only if it was appropriate exercise; some exercise, like cycling for example, would make it worse:  p 49.  Dr Gillett thought that particular pain in the knee when trying to kneel would be consistent with an injury having been suffered in the accident:  p 50.  In addition, trying to drive for a long distance would also cause pain if there was an injury to the knee of this kind:  p 50.  He would also expect her to have had trouble with stairs in the early period:  p 50.  Kneeling, or climbing a ladder, or trying to squat would put more pressure on the joint and be more painful:  p 52.

27. [27]
    The radiologist who examined the right knee on 21 April 2004 reported on a finding which “may represent previous trauma”.^[21]  Another radiologist who performed apparently a plain x-ray on 14 April 2004 also saw something suggesting trauma.^[22]  There was an MRI on the right knee undertaken on 27 July 2005, which detected degenerative cartilage fissuring of the medial patellar facet.^[23]  Dr Gillett was not referred to this report in his evidence.  I cannot treat it as inconsistent with his assessment.

28. [28]
    Exhibit 1, the agreed bundle of documents, includes a mass (263 pages) of hospital notes from the Prince Charles Hospital.  Most of this material was not referred to in submissions^[24], and most of it is difficult to interpret, although there are indications in this of continuing problems with asthma, and of the plaintiff having had an unsettled and somewhat unhappy time during her teenage years.

29. [29]
    The plaintiff was examined by a psychiatrist, a Dr Lovell, on 10 November 2004 for the purposes of a report to the second defendant.^[25]  Dr Lovell noted that the plaintiff displayed marked mood swings, with a tendency to project blame and see herself as a victim, and chronic underlying feelings of anger.  He thought it likely that there was a pre‑existing personality disorder with borderline traits and dysthymia.  He expressed the opinion that the applicant may have met the criteria for post traumatic stress disorder, although he thought the symptoms were largely abating.  He also thought there might be mild symptoms of adjustment disorder with anxiety relating to the road accident.  He performed an assessment of the plaintiff’s PIRS, on the basis of which there was a whole person impairment as a result of the accident of 4 per cent.^[26]  He suggested, however, that it may be of assistance for her to undergo an advanced driving course which would have the effect of reducing her impairment by 2 per cent.  He thought she was unlikely to benefit from anti-depressant medication.  Dr Lovell did not give oral evidence.

30. [30]
    A defensive driving course is available at a cost of $225 at a training centre, $240 for a half day or $450 for a full day on road course: Exhibit 6.

Credibility

31. [31]
    I should say something about the credibility of the plaintiff. She impressed me as being essentially an honest and straightforward witness, and I thought it significant that there were a number of occasions under cross-examination when it seemed to me she was readily making concessions which were adverse to her interest.^[27]  Her evidence at p 18 about the amount of care she was receiving by the end of the six month period after the accident, although still including the unofficial counselling from her mother, was much more realistic than the evidence on the subject from either of her parents.  I did note something of a tendency to blame other people for her problems, but of course to the extent that her problems stem from the accident the subject of the action it is reasonable for her to blame the first defendant for them.  Overall, the plaintiff impressed me as a reasonably reliable witness, and as a general proposition I accept her evidence.

32. [32]
    Specifically, I do not find that she was dismissed from her job as a supermarket checkout operator for stealing from the till. Although she did admit in court that she was stealing (p 36) evidently she did not admit this to the employers and I accept her evidence at p 37 that she was just warned and placed under greater supervision, and left because of illness.^[28]  The one part of her evidence that I do not accept is that but for the accident she would in the immediate future have started work again as a delivery driver:  p 10, and see p 41.  This is strictly speaking just her opinion as to what would have happened.  I also in general accept the evidence of her parents.

General damages

33. [33]
    The relevant provisions of the Act and regulations are set out and explained in Ballesteros v Chidlow [2005] QSC 280, and Coop v Johnston [2005] QDC 729.  I adopt the exposition of the assessment process in these matters, which seem to me to be to the same effect, and will not repeat it.

34. [34]
    The defendant in submissions identified six injuries: bruising, principally associated with the seatbelt; a whiplash injury to the neck; a lower back injury; an injury to the right knee; an injury to the left shoulder; and a psychological injury.^[29]  The bruising was, for bruising, quite bad and extensive, but ultimately it healed, although some of it took some months to recover.  I accept that it appropriately falls within item 39, of which the ISV range is 0-10.  The neck injury was painful but was assisted by the physiotherapist and it appears ultimately recovered.  This injury falls within item 89, and ISV range of 0-4.  The low back injury which has been more persistent is painful and to some extent interferes with function.  Dr Gillett assessed this as a 3 per cent loss of bodily function.  It is one of the things which interferes with a number of activities, and which plays up when the plaintiff attempts to do things.  There was some dispute as to which was the appropriate item, but in all circumstances I think it falls more appropriately within item 93^[30], for which the ISV range is 5‑10.

35. [35]
    With regard to the right knee injury, there was some dispute from the defendant as to whether this was actually injured in the accident, or whether the right knee problem developed at some later time. There were, however, some problems with the right knee early on^[31], and I think it likely that in the earlier period the plaintiff’s symptoms in the knee were to some extent masked by other problems she had which would have been very painful.  In addition, in the first few months after the accident I think it likely that the plaintiff was doing very little, and accordingly was placing very little stress on her knee, and this would have reduced the tendency of the knee to produce symptoms.^[32]  I am satisfied that the knee was injured in the accident in the way initially described by Dr Gillett and it represents a 2 per cent loss of whole person function.  It falls within item 140 with an ISV range of 0-5.

36. [36]
    The left shoulder injury produced a 1 per cent impairment on Dr Gillett’s assessment.  It is ordinarily not productive of much pain now, largely because the plaintiff is careful not to do anything to provoke it.  There is certainly something wrong with the shoulder, and there is a real loss of function.  The injury seems to me to be more severe than the examples given for item 98 but less severe than those given for item 97.  I suspect it belongs at the bottom of item 97, but in view of the submission for the plaintiff I will with some hesitation find that it falls within item 98, ISV range 0-5.

37. [37]
    Finally, there is the psychological injury. I accept that the plaintiff had post traumatic stress disorder and now has an adjustment disorder with anxiety. In relation to this I generally accept Dr Lovell’s evidence, but do not accept that doing a defensive driving course is going to reduce the whole person impairment from 4 per cent to 2 per cent.  Dr Lovell’s report gives details of how the plaintiff’s PIRS was determined.  The only aspect of that which would seem to be potentially altered as a result of a defensive driving course is area 3 - travel, in respect of which the post-accident rating was only 2.  I cannot see how an adjustment of this item could produce a change in the impairment from 4 per cent to 2 per cent.^[33]  It also seems to me that Dr Lovell’s opinion in relation to this is essentially speculative.  He does not say that doing a defensive driving course will definitely produce any particular result, and no doubt he could not say that.  Ultimately I find this part of Dr Lovell’s report is just not plausible, it does not carry conviction.  Further, the 2 per cent assessment did not comply with s 12 of Schedule 5 of the Regulation, so I cannot accept it:  Schedule 3 s 6(3)(b).  I do not accept it.

38. [38]
    It was also submitted that the majority of the plaintiff’s symptoms were longstanding. However, the PIRS rating process undertaken by Dr Lovell is one which involved an assessment both before and after the accident, so the PIRS rating obtained was necessarily only a reflection of the change produced by the accident.  That rating indicates that the psychological injury falls within item 12, which has an ISV range of 2-10.

39. [39]
    There are therefore potentially three injuries, the chest injury, the lower back injury and the psychological injury, which qualify as the dominant injury. This depends simply on the highest ISV number associated with the item into which the injury falls, and has nothing to do with which injury is individually most significant in any other way, or indeed which injury assessed separately would produce the highest ISV. That follows from the definition of “dominant injury” in Schedule 7, and it follows that I choose one of them.  It would be sensible to choose the one which seemed to be the most significant of the three, and of those three the most significant is the lower back injury.

40. [40]
    The next question is whether all of the injuries together can be seen as the equivalent of a lower back injury which would fall within the ISV range of item 93.  In my opinion they did not.  No doubt in many cases, perhaps most cases, where there are multiple injuries, there will be one particular injury which is significantly worse than the others, and the additional effect of the other injuries will not add much to the overall seriousness of the plaintiff’s condition.  In the present case it was different; the plaintiff has a number of injuries, and some of these are of significance.  The lower back injury is painful and persisting and limiting, as is the injury to the right knee.  The psychological injury I think is also of significance.  The left shoulder involves apparently a permanent impairment, although the pain can be managed by avoiding things that aggravate it.  The other two injuries were essentially only of a temporary nature, and their presence does not add much to the overall picture, though they do add something.

41. [41]
    There are also the considerations that the plaintiff is relatively young (25 now), and that most of the injuries are likely to remain for the rest of her life. That is a feature which adds to the seriousness of her plight, and that ought to be reflected in the assessment of her ISV. That is recognised in s 9 of Schedule 3 to the regulations.  In addition, the injuries to the knee and the back are painful and the pain is ongoing, and the psychological injury is likely to have a limiting effect on the plaintiff’s ability to accommodate herself to these injuries.  That I think is likely to be the explanation for the plaintiff’s excessively emotional response when she was being assisted with her rehabilitation, and is likely to mean that the plaintiff’s prospects of rehabilitation are lower than then otherwise would have been.

42. [42]
    In addition, the injuries operate in a cumulative way; their effects do not greatly overlap, and the combined effect is going to be a good deal greater than the individual effect of any of them. Overall, I would assess the cumulative effect of these injuries as being quite serious, certainly much more serious than the individual contribution of any one of them. In my opinion, in those circumstances, neither an assessment within the basic ISV range of 0-10, nor an assessment within the primary uplift range of 25 per cent above 10 (notionally 12.5, presumably 13 since only a whole ISV can be adopted) would be adequate to reflect the cumulative effect of all of the plaintiff’s injuries.

43. [43]
    There is the further consideration that the plaintiff had some problems anyway. It was submitted that the plaintiff’s ankle injuries provided limiting features and would have restricted her ability to do various relevant things, and in particular her ability to work, in any event. The plaintiff’s evidence was that the ankle pain slowly went away over a period of a few years (p 32), and I do not think that this is a case where the presence of the pre-existing ankle injury would have the effect of reducing the significance of the injury suffered in this accident.  The plaintiff had other difficulties, such as asthma and her other ill health, which were likely to have caused problems for her in any event, but none of these would have been likely to be productive of ongoing pain, though they probably would have to some extent resulted in some loss of amenities of life.  Nevertheless, the new limitations the plaintiff has suffered as a result of the accident are much more significant than any limitation she would have had otherwise because of pre-existing medical problems.^[34]  Her ability to enjoy life was to some extent limited anyway by these other matters, which makes more significant the loss she has suffered as a result of this accident.

44. [44]
    A factor properly taken into account in the assessment of ISV is other earlier decisions: Act s 61(1)(c)(ii).  There are not many of these so far, but there are some.  Coop v Johnston [2005] QDC 79 is one of them.  In that case the plaintiff had suffered a number of injuries of which the most severe was a cervical spine injury which produced neck pain and headaches nearly every day, aggravated by various activities including driving.  After she commenced employment that produced an increase in neck pain.  His Honour regarded the symptoms as causing moderate permanent impairment to the cervical spine, and one for which there was objective evidence.  One orthopaedic surgeon assessed the whole person impairment at 5 per cent.  Apart from this, the plaintiff suffered a displaced fracture of the nose, although this had produced only minimal deviation.  Although surgery could improve this, the surgery was not recommended because the current effect was so minor.  The plaintiff had some other nasal problems, most of which were not related to the accident.  The plaintiff also developed a ganglion on the left wrist which was painful and produced equivalent of 4 per cent whole person impairment, but was susceptible to surgical treatment which would leave little or any impairment.  She had a number of other injuries which seem to have been all quite minor; there was no psychological injury.

45. [45]
    His Honour found the predominant injury was item 16, the nasal fracture, with a maximum ISV of 13, which his Honour regarded as inadequate to reflect the level of impact of all the injuries.  That plaintiff suffered a good deal of pain and suffering and was also a relatively young woman.  His Honour assessed an ISV of 16.  Assuming that that plaintiff would have had the surgery to remove the permanent impairment of the left wrist, it seems to me that overall the plaintiff in the present case is worse off than the plaintiff in that case, although not a great deal worse off.  That suggests an ISV of not far above 16.  I was referred to Tomlins v Sheikh [2005] QDC 174.  In that case there was only the one injury, an injury to the neck which was assessed within item 88, but at the lower end of the range, at 6.  The plaintiff in this case is obviously much worse off than that plaintiff.

46. [46]
    I was also referred to Ballesteros v Chidlow [2005] QSC 280.  The plaintiff suffered a cervical spine injury and a lumbar spine injury.  The plaintiff was at one time assessed as having an 8 per cent whole person impairment with respect to the cervical spine injury, but the plaintiff had said that since then the symptoms had significantly abated.  Her Honour placed the injury in item 88.  She was not persuaded that the lumbar spine injury was related to the accident.  There were a number of other injuries, mostly bruising of various parts of the body, a graze to the left shoulder and a cracked tooth, all of which were obviously quite minor.  In that case her Honour increased what would otherwise have been an ISV of 7 just for the neck injury to an ISV of 9.  That appears to be an example of a situation where there was one injury which was much more significant than any of the other injuries.  The plaintiff in that case was aged 35 at the time of the accident, somewhat older than the present plaintiff.  The description of the symptoms in the judgment suggests that the plaintiff’s neck injury in that case had effects which were not unlike the effects of the plaintiff’s back injury in the present case, viewed in isolation.  Ballesteros suggests that the ISV should be more than 9, and perhaps quite a bit more than 9, though it does not provide much guidance as to how much more.

47. [47]
    Overall, in this matter there are three separate injuries which are of about the same significance, and of lasting significance. In addition, there is one other injury, that to the shoulder, which is less significant, but lasting and more than minor (1 per cent whole body impairment), and two other injuries which although quite painful and disabling for a time, did in time subside.  This may be an unusual combination of injuries, where there is no one injury which is particularly dominant.  In these circumstances, in my opinion neither an ISV within the range of whatever injury is chosen as the “dominate injury”, nor that with a 25 per cent loading, is adequate properly to deal with the spread of injuries suffered by the plaintiff, particularly in circumstances where most of the injuries are going to be permanent and where the plaintiff is relatively young.  In addition, a comparison with other decisions, and in particular with the more relevant earlier decision, under the Act and Regulation, suggests an ISV in excess of 16.  In all the circumstances therefore in my opinion it is appropriate in this case, in a situation which is no doubt unusual, to allow an ISV with a greater than 25 per cent loading at the top of the range of the “dominant injury”.  In all the circumstances therefore I will allow an ISV of 18.  That reflects the adverse impacts of all of the injuries.  Pursuant to s 62 of the Act, that is an amount of $22,800.^[35]  There is no dispute that pursuant to s 60 of the Act interest is not payable on any part of this award.

Economic loss

48. [48]
    This is a case where s 55 of the Act applies, since the earnings cannot be precisely calculated.  She was not working at the time, and had a fairly limited work history up until then, and it was submitted for the defendant that the plaintiff had suffered neither past nor future economic loss as a result of the injuries.

49. [49]
    It was certainly the case that the plaintiff had a poor work history prior to the accident, and there was nothing in particular at the time of the accident preventing her from working. It does appear from the hospital records that the plaintiff had, when she was somewhat younger, a very troubled time, and that is consistent with the plaintiff’s evidence, and with her having a poor work history. One would expect, however, that as she became older and as she matured emotionally she would settle down, that as part of this she would in time become a more regular member of the workforce. I do not think it is realistic to assume that the plaintiff’s lack of earnings as a troubled teenager would be representative of her behaviour for the rest of her life if the accident had not intervened.^[36]

50. [50]
    The plaintiff did return to work after the accident, in August 2004 doing work she had done before as a delivery driver. Ultimately she was unable to cope with that work, and she gave it up. I find that she did so because of the effect of her injuries. She said that at the time of the accident she had been planning to return to this work, and also gave evidence of the possibility of her working as a taxi driver. I find she would have been able to work as a taxi driver before the accident had she been willing to do so, but taxi driving is fairly demanding work and involves relatively long hours, and I think it unlikely that she would have undertaken that work on a full-time basis soon after the time of the accident.

51. [51]
    It was submitted by the defendant that the time when she was working as a delivery driver she was not actually making any net income, because according to her income tax return for year ended 2003 her expenses exceeded her gross earnings.^[37]  I suspect, however, that there was some creative accounting in that income tax return.  There were some costs claimed which the plaintiff could not explain in the witness box (p 38), and which do not appear to me to have any logical explanation, and in addition motor vehicle expenses were undoubtedly being claimed at the conventional rate for income tax purposes, which, particularly if one drives a relatively modest vehicle, is well in excess of the out‑of‑pocket expenses involved in the use of the vehicle in the course of such work.  People do work as pizza delivery drivers, and I am sure they do not do it just for the fresh air and exercise.  Undoubtedly in practice one can make money out of it, and it is likely that in practice most of her gross earnings were net earnings.

52. [52]
    Nevertheless, I am unpersuaded that but for this accident the plaintiff would in the latter part of 2003 have changed from someone who was normally not working into someone who was normally working. For that reason, I do not think that it is realistic to assume that but for the accident the plaintiff would have been working for the whole of the time since then, subject only to a 40 per cent discount for contingencies (as submitted by her counsel).  It is equally unrealistic to proceed on the basis that but for the accident the plaintiff would not have earned any more in the period up until trial than she did anyway.  I think it probable that she would have worked more, and earned more, though in the light of her employment history that should be assessed on a relatively modest basis.

53. [53]
    Gross payments in the period when she was working after the accident seem to have been in the order of $100 per week, but I accept that during this period she was having difficulty with the job because of the accident, and that but for the accident she would have had a capacity to do more work and presumably earn more money. I think that a realistic assessment of pre-accident earning capacity as a delivery driver was probably about $100 per week net for the period when she was working. There has been two and two-third years since the accident, and in all the circumstances I think a realistic approach is to compensate her for past economic loss on the assumption that but for the accident she would have been working for one-third of that time making $100 per week net, which produces a pre-accident earning capacity of about $4,500. It may be that she would have worked less than that, or earned less than that; on the other hand, it may be that she would have worked more, or found some other more remunerative employment, for at least part of the time; there was certainly considerable potential for her to earn more than that, and I am really assessing past economic loss on a very modest basis. I will take $750 off this to reflect the net earnings for the work that she actually did during the period, so that past economic loss becomes $3,750.

54. [54]
    It was submitted that since the accident the plaintiff had not been the making as much of an effort to work as she could have, and reference was made to the difficulties that the Commonwealth Rehabilitation Service had with her. I think those difficulties are largely a product of her psychiatric state. To some extent they may be associated with long-standing personality factors, but to some extent they reflect the psychiatric problems brought on by the accident.^[38]  Those psychiatric problems are not confined to a difficulty with driving, and in my opinion they make it more difficult for the plaintiff to cope with her injuries, and would have reduced her motivation to pursue any potential employment.  In all the circumstances I am not persuaded that the defendant has shown that there has been a failure on the part of the plaintiff to mitigate her loss since the time of the accident.^[39]

55. [55]
    With regard to future economic loss, I think it likely that as time passed the plaintiff would have settled down further and would have been more likely to have been in employment. The plaintiff faced problems with obtaining employment anyway, because of her other disabilities: her asthma, perhaps her ankles if she had been in some more physically demanding activity; in time probably with the degenerative condition in her knees anyway; the long‑standing personality features referred to by Dr Lovell; and perhaps also simply the fact that she is a large woman which in practice may put her at some disadvantage in the labour market.  Coupled with what would have been a very modest CV, these probably would have caused difficulties for her anyway in obtaining employment in the future.  I expect she could have worked as a taxi driver if she had really wanted to, and perhaps in time she would have done so.  On the whole I think it probable that, but for the accident, she would in time have settled to some probably fairly modest employment for much of the rest of her life.

56. [56]
    I think it is clear on all of the evidence that the plaintiff’s difficulties in the labour market have been increased as a result of the permanent effects of these injuries. I think that her ability to work as a professional driver has probably been curtailed substantially, her ability to do other tasks which were to some extent physically demanding has been further restricted, and her psychiatric problems will aggravate the difficulty she would have suffered anyway. Someone who was disadvantaged in the labour market has been more disadvantaged, and it is realistic to expect that that will mean that she will spend more time out of work in the future than would otherwise have been the case, and could well be in less remunerative employment in the future than would otherwise be the case. Obviously this is not the sort of thing which is susceptible of calculation, or of compensation other than by means of a global amount. The plaintiff has potentially a working life in the order of 35 years ahead of her, perhaps longer.

57. [57]
    It is difficult to know what realistic figure for the plaintiff’s earning capacity per week had the accident not occurred would have been, but I expect that net earnings for a person in modest employment, and probably casual rather than full-time, would have been in the range of $200-$300 per week. One indication of the appropriate size for a global award is to consider how much more time the plaintiff might well spend out of work because she will find getting work that much harder. If the plaintiff will as a result of the accident have three years more unemployment in the future than would have been the case apart from the accident, which does not produce a dramatic effect on her earning capacity, that produces an (undiscounted) figure of about $40,000.

58. [58]
    I note that in Coop (supra) the plaintiff who was a little older, and who did not have any psychiatric injury, and whose injuries overall were not as serious as the present plaintiff’s, and who also had limited work experience and poor work history and lack of skills and formal education, so that she was made more vulnerable in the labour market, was allowed a global sum for future economic loss of $30,000.  In Ballesteros (supra) a global sum of $20,000 was allowed to a plaintiff who was older and rather less seriously injured, and who had no psychiatric injury and had resigned from a permanent position in the public service because of her injury, “to take account of the real possibility that from time to time the plaintiff will be unable to work because of intermittent pain due to the injuries sustained in the accident.” [97]  There was not a finding that that plaintiff was at risk in the labour market because of her injuries.

59. [59]
    Those decisions suggest that a global award for future economic loss in the present case should not be less than $40,000. On the whole I think that is an appropriate figure to adopt. I think that is a very modest estimate of potential earnings, which really makes little allowance for any possibility that but for the accident the plaintiff would have any sort of success in a career, and in view of that consideration I do not think it should be discounted further to adopt a present value.

60. [60]
    I will allow a loss of superannuation benefits on the basis of 9 per cent for past and future economic loss awards.  These come to $3,937.50.  Interest of $252.53 on past economic loss should be allowed at the rate of 2.525 per cent.^[40]

Gratuitous care

61. [61]
    The next issue is as to gratuitous care. In the period immediately after the accident the plaintiff was virtually helpless, and everything had to be done for her.^[41]  She required assistance to move anywhere, even to go to the toilet:  p 15.  She said that assistance from her mother with cooking and cleaning continued for six to 12 months.  Her mother had to wash her hair for about six to eight weeks after the accident, she drove her to appointments and did her washing.  According to the plaintiff, for part of the first period of six months after the accident her mother was helping her for at least five hours a day, though towards the end of the period it would have dropped to two and a half to three hours a day, which included talking to her, as a form of counselling her, and trying to help her to deal with what had happened:  p 18.

62. [62]
    After that six month period it dropped off, and in time the main things that her mother was doing was her washing, and the counselling: p 19.  Apart from that, she would on occasions prior to the accident help her father by mowing the lawn, or by vacuuming the pool, putting in the chlorine and cleaning the filter.  Now she does not do those things.^[42]  She conceded under cross-examination that by the end of October she did not require any assistance in showering, drying and dressing or cooking:  p 57.  Her cleaning, however, took longer, and she still has some problems with heavier cleaning tasks.  This is a matter of some significance, because the plaintiff has pets which she keeps in her room, so that it requires rather a lot of cleaning.  There were problems with pegging clothes on the line, because that involved reaching up, and to some extent with reaching in to get the clothing out of the washing machine:  p 59.  Her mother confirmed that immediately after the accident she had to do everything for the plaintiff:  p 70.  She gave a slightly higher estimate of six hours a day during the first few months for the physical care:  p 71.  This was for four or five months, dropping to three or four hours a day over the next three months:  p 72.  Thereafter it declined further but there were some things for which she was still providing some assistance.  Her father’s estimate was that even six months after the accident her mother was still spending 12 hours a day as her companion/carer:  Exhibit 5.

63. [63]
    It was not disputed that damages for gratuitous services are restricted by s 59 of the Act.  There was, however, some dispute as to operation of the restriction in subsection (1)(c).  Relevantly this provides:

“Damages for gratuitous services are not to be awarded unless the services are provided, or are to be provided:

1. (i)
   for at least six hours per week; and

2. (ii)
   for at least six months.”

64. [64]
    There is no dispute that this imposes a threshold, or indeed two thresholds. However, there was a dispute as to the operation of the first threshold, as to whether or not it was a continuing threshold. The plaintiff’s submission was that, so long as gratuitous services were provided for at least six hours a week for at least six months, damages were to be awarded for whatever gratuitous services were provided (subject to any other restriction in this section). On the other hand, the defendants submitted that the effect of the provision was that damages could not be awarded for any period in respect of which services were provided or to be provided for less than six hours per week, even if there had been a period when that threshold was exceeded for six months.

65. [65]
    In support of this submission, the defendants relied on some comments in a New South Wales decision, Roads and Traffic Authority v McGregor [2005] NSWCA 388.  In that case a section wording which is somewhat similar (see paragraph 159) was interpreted as imposing a continuing threshold, on the basis of an earlier decision of the Court of Appeal, Geoghan v D’Aubert [2002] NSWCA 260 where that interpretation was adopted, apparently on the basis that the alternative, or what was described as “a strict legal construction”, would produce a capricious result.  Geoghan was cited by the Court of Appeal in Grice v State of Queensland [2005] QCA 272, where that court had to consider a differently worded^[43] provision in s 54 of the Personal Injuries Proceedings Act 2002, which s 59 subsequently replaced.  In Grice, however, the Court of Appeal did not consider that the New South Wales authorities were of assistance in interpreting the Queensland provision.^[44]  Furthermore, the wording of s 59(1) is different from the wording of the New South Wales provision.  The New South Wales decisions are concerned with legislation which is expressed in different terms, and there is nothing in Grice to provide any great encouragement to follow them.

66. [66]
    Section 59 assumes, correctly, that at common law damages for gratuitous services are awarded, and sets out to impose several restrictions on the awarding of gratuitous damages.  It does not set up a replacement statutory scheme for damages for gratuitous services.  Against that background it seems to be clear that paragraph (c) does set up a threshold for recovery and it is a double threshold:  there must be services provided for at least six hours per week for at least six months.  But it seems to me that once that double requirement has been satisfied, the paragraph does not restrict the awarding of damages for gratuitous services.  So long as the other services are provided or to be provided for at least six hours per week over a period of at least six months, there is no relevant restriction of the awarding of damages for gratuitous services.

67. [67]
    It seems to me that that is the natural reading of the section, particularly in view of the use of the word “unless”. If the intention had been that damages for gratuitous services would be awarded only in respect of periods when those services were being provided for at least six hours per week, in my opinion a different form of words would have been applied. In order for the plaintiff to recover damages for gratuitous care, it is necessary to show that, for a period of six months or more, care for at least six hours a week was necessary; but once that has been achieved, the “unless” clause has been satisfied and this prohibition on awarding of damages for gratuitous services is removed. Once that occurs, damages are to be awarded according to common law principles, subject of course of the operation of any other relevant provision of s 59.

68. [68]
    Apart from this, the defendants submitted that on the evidence as a whole the threshold was not met, because the need for gratuitous care had dropped below the six hour limit before the six month period had expired. It was submitted that I should not accept the estimates of care given by the plaintiff and her parents, and prefer what emerged from the assessments made by the physiotherapist. This is a reference to the patient’s specific disability measure apparently prepared by the physiotherapist between September and December 2003.^[45]  This suggests that by the end of October she was performing at a level 8 (on a scale of 0 – unable to perform the activity, to 10 – able to perform the activity at pre-injury level) for showering, dressing, drying and cooking, and at a level of 4 for cleaning and driving, and 2.5 for washing and hanging out clothes.  By 19 December the level for cleaning had increased to 5, for driving to 4.5, and for washing and hanging out the clothes to 3; the other levels remained at 8.

69. [69]
    Damages for gratuitous services are awarded only in respect of services that are necessary because of the injury in relation to which damages are awarded: s 59(1)(a), (b).  They are also not to be awarded for services if the services were being provided for the plaintiff prior to the injury:  s 59(2).  The precise effect of that provision is not clear.  Presumably the intention was to exclude claims in circumstances where these services were being provided by someone else anyway, for example claims for cooking and cleaning by a married man whose wife was doing all the cooking and cleaning before the accident.  At common law such claims could be advanced on the basis that a need for such assistance had been created by the accident, if it had the effect that the man was unable to do the cooking and cleaning himself as a result.

70. [70]
    So far as gratuitous services are concerned, I accept that for a period after the plaintiff’s injuries she required very intensive care, and that would have extended to several hours per day. However, it seems clear that well before the period of six months had expired the plaintiff had recovered sufficiently for her to be able to do quite a number of things by herself. She still required some assistance with driving, at least on occasions, some assistance with washing and assistance with doing heavier forms of cleaning, or any other heavier tasks around the house which she otherwise would have done.

71. [71]
    The difficulty is in putting a figure of hours on this. I suspect that in practice the plaintiff’s mother devoted far more hours to the plaintiff’s care than the plaintiff really needed. I do not think that time spent providing informal counselling to the plaintiff should be treated as gratuitous services for which a claim could be made. There is no medical evidence that this was of benefit to her, and I am not prepared to assume that providing companionship and counselling was something that was necessary for the purposes of s 59.

72. [72]
    I want to say something about a couple of specific arguments advanced by the defendants. It was submitted that difficulties in pegging out clothing could be overcome by the plaintiff’s standing on something like a stool so that she was able to peg out clothes without raising her arms above shoulder height. I do not think that is a reasonable course to follow. The plaintiff is a large woman, and has problems with her knees and lower back, and in the circumstances I consider that having to use some steps or a stool or something of that nature to peg out clothing would involve an unreasonable risk of further injury to the plaintiff. Apparently at one time a laundromat was being used, but that would involve a cost burden which I suspect would be greater than the cost of the time it would have taken the mother to peg out the clothes on the line. In my opinion it was reasonable to deal with the difficulties in pegging out clothes for her mother to do it for her, and for that to be recoverable.

73. [73]
    Reference was also made to the plaintiff’s assisting on occasions with heavier jobs outside before the accident, such as mowing the lawn or attending the swimming pool. It was submitted that this really involved providing gratuitous services to her father and was therefore excluded by the recent decision of the High Court in CSR Ltd v Eddy (2005) 80 ALJR 59.  I do not agree.  That case was concerned with a claim for damages by a man who, prior to the relevant injury to himself, had been providing domestic assistance to his wife who had need of it because of her own disability in the form of osteoarthritis.  It is not concerned with a situation where two or more members of a household who are able to perform household tasks which were for their common benefit shared them between themselves, but one of them was then prevented from undertaking her share of the task by her injury.  In my opinion the cost of replacing the contribution to the shared task is recoverable; this is essentially the converse of the situation dealt with in s 59(3).  However, the evidence does not suggest this is something that the plaintiff spent any great amount of time on prior to the accident, and a reasonable allowance would be no more than one hour a month.

74. [74]
    As at the end of the six month period, therefore, it is reasonable to allow time spent in assisting with washing and then pegging out of the clothes, the heavier cleaning, some allowance for assistance with driving^[46] and perhaps some additional small allowance for other heavier tasks or other occasion when, perhaps because of a particular flare up, the plaintiff required more assistance than usual.  However, that would not come to as much as six hours per week.  I would allow one hour per week for washing et cetera, two hours per week for heavier cleaning, and half an hour per week for driving, and allowing another half an hour per week to cover other matters.  That comes to four hours per week.  Accordingly the plaintiff does not go over the threshold in s 59(1)(c), and no amount can be awarded for gratuitous care.^[47]

75. [75]
    Nevertheless, some allowance should be made for future non-gratuitous care. If at some time in the future gratuitous care is no longer available to the plaintiff, to the extent that she is unable to do things for herself, she will require paid care, which is not subject to the restriction in s 59.  The plaintiff will be left permanently with a reduced ability to do heavier tasks, and therefore will always have a need for assistance with heavier cleaning and some other matters around the house with which she could otherwise have managed.  Presumably for some time this will be met by her parents gratuitously, but at some point in the future she is going to need assistance of this nature, which will presumably be provided on a paid basis.  Some allowance therefore should be made for future paid care.

76. [76]
    The plaintiff’s current needs are not particularly great, covering heavier cleaning and other heavier household tasks, and pegging washing, for which I find she needs assistance for two hours per week, but this is likely to be permanent. A 25 year old female has a life expectancy of just under 58 years^[48], so assuming that her care needs were met gratuitously for the next 10 years, the cost of meeting her needs at that rate for the rest of her life, at the agreed rate for future care of $16 per hour, less a discount of 20 per cent for contingencies, comes to about $7,500, which figure I will allow.^[49]

Other matters

77. [77]
    The plaintiff is currently spending about $4.50 for painkillers.^[50]  For a period of 58 years discounted at 5 per cent this comes to about $4,500, and I will discount 20 per cent for contingencies, producing a figure of $3,600.  Although one might expect that in time the plaintiff’s level of consumption of painkillers might reduce if things otherwise remained as they are, I think it likely that at times when the plaintiff is working, perhaps particularly around the beginning of any period of employment, her consumption of painkillers is likely to go up, so as to cancel this out.

78. [78]
    With regard to special damages, past pharmaceutical and travel expenses were agreed at $1,000. That should carry interest at the rate of 2.525 per cent per annum for two and two-third years, $67.  In addition it was agreed that there were amounts refundable to the Health Insurance Commission of $1,184.90, Commonwealth Rehabilitation Service of $1,955.20 and Suncorp rehabilitation expenses at $3,976.05.  Special damages are therefore $8,116.15.

Summary of assessment

79. [79]
    There will therefore be judgment that the second defendant pay the plaintiff $90,023.18. Unless another order is appropriate, I will order that the second defendant pay the plaintiff’s costs of and incidental to the action to be assessed.