DISTRICT COURT OF QUEENSLAND

1. [1]
   On 4 April 2004 the plaintiff, who is now 32 years of age, was stationary on a road leading from the Carindale Shopping Centre. It was a Sunday afternoon. Her vehicle was involved in an accident when, from behind, the first defendant struck the plaintiff’s motor vehicle and as a result of that the plaintiff claims that she suffered injuries to her cervical spine and lumbar spine. At the time of trial the plaintiff complains of continuing disabling symptoms which she refers to the original incident and, as a consequence, makes a claim for damages against the defendants.

2. [2]
   In the amended defence (par 5(a)) the defendant admits that the plaintiff suffered a musculo-ligamentis injury to her cervical spine as a result of the incident. However, the defendant’s case is that the collision was of a minor nature and whatever physical injuries were suffered by the plaintiff they had, by the time of trial (and for a considerable period beforehand) completely resolved or, in the alternative, that should the evidence be regarded as demonstrating some mild continuing symptoms, those were not disabling and are not compensable.

3. [3]
   The extent to which the injuries, which were conceded by the defendant to have occurred in the motor vehicle accident, continued to provide symptoms at the time of trial was a fundamental question. A consideration of this question itself involves questions of credit, particularly in relation to the plaintiff, to some extent the defendant, and other various witnesses, including a witness for the plaintiff Mr Honan.

4. [4]
   Expert evidence was called at the hearing from suitably qualified medical practitioners who are specialists, a physiotherapist, occupational therapists, amongst others witnesses. A body of opinion evidence was called in relation to the potential salary earning capacity of a plaintiff, in the injured condition which she describes.

The Plaintiff’s Case

5. [5]
   On 4 April 2004, the plaintiff, leaving the Carindale Shopping Centre on a Sunday afternoon, had stopped at an exit to ensure it was safe to continue out of the car park. She describes, whilst wearing her seatbelt, leaning forward and looking towards her right. The plaintiff says she was stopped at the time and was hit from behind, unexpectedly, by the defendant. She described the impact to Dr Todman, a specialist, who was called on her behalf, in terms of it being a “substantial impact”. As a result of the collision the plaintiff suffered injuries, so she says, to her cervical spine and her lumbar spine, which continued to persist. After the incident she consulted a general practitioner on 6 April and had a number of days off work, which were planned for the purpose of a breast augmentation operation. After the operation she consulted a physiotherapist, on a number of occasions and was treated for injuries. To the physiotherapist the original emphasis of her concern was pain to the right shoulder/neck area, but with some involvement of the left as well. As time progressed her complaint has been to others whom she has seen, including the physiotherapist (Walker), of shooting of pains to her left shoulder.

6. [6]
   The plaintiff works as a legal secretary, sometimes carrying out paralegal work, although on the evidence it is difficult to distinguish precisely at the time of trial the relative balance of this work. She works between 8.30 a.m. to 5 p.m. Monday to Friday in this position.

7. [7]
   At the time of trial the plaintiff said^[1] that she had back pain most days and that if she had complete freedom of movement she could minimise the pain but not completely eliminate it.  Because her tasks involved what she described as “reading files” for the purpose of her duties, which involved, to a large extent, typing, she experienced neck pain after about 20 minutes reading, seated in the same position.  The plaintiff has not attempted to obtain any assistance from commercially available devices which might relieve her neck from being in a forward /tilted position during reading.

8. [8]
   The plaintiff consulted a Mr Walker, who was called to give evidence, quite soon after the accident. Mr Walker was a physiotherapist in the employ of Julie D’Mello Physiotherapist Pty Ltd. Walker saw her until early August 2004 and treated her. I infer from the fact that treatment was discontinued in early August that the treatment had some success. The plaintiff consulted Mrs D’Mello herself in February 2005, which is the only other occasion where she sought such assistance from a relevant practitioner. I consider the course and chronology of the plaintiff’s attendance upon the physiotherapists as a relevant factor in the issues which I have to determine.

9. [9]
   The plaintiff, after a period of absence, resumed her interest in netball and has continued to play actively in that sport. A DVD was produced at trial, which became Exhibit 14, and showed the plaintiff in November and December of 2005 engaged in physical activities, getting in and out of a motor vehicle, walking and playing netball. This DVD, it is submitted, is entirely consistent with the plaintiff’s evidence at trial and with the histories which she has provided to the doctors who have seen her from time to time, including the defendant’s expert witnesses.

10. [10]
    The plaintiff’s evidence is that she is able to do housework, except the heavier type of housework. She has returned to her netball activities. She pursues her interest in gym work on a number of days per week.

11. [11]
    The plaintiff is studying for a law degree and is halfway through that course. Not only does the plaintiff experience difficulties, she says, at work, but her studies, which are mainly undertaken on weekends for a number of hours, are made more difficult by virtue of the continuing injuries which she sustained subsequent to the accident.

12. [12]
    A former employer with whom she worked closely, a solicitor Mr Honan, gave evidence which was meant to support the plaintiff. He described seeing the plaintiff massaging or rubbing her neck, suggestive of difficulty and pain in that area, and of a substantially diminished ability to work effectively and productively. I will have more to say about Mr Honan’s evidence below.

13. [13]
    The physical activities undertaken by the plaintiff in the form of sporting activities are not, it is said, inconsistent with the plaintiff’s case. The plaintiff says that her injuries affect her when she is in a static position and particularly in activities of a static nature that involve her sitting, reading and typing, where she might expect to be in the one position for some time.

14. [14]
    The issues in the case, as I have said, involve considerable questions in relation to the plaintiff’s credit going to what, if any, impairment the plaintiff continues to suffer as a result of the original incident on 4 April 2004.

15. [15]
    The defendants’ case is either that the plaintiff’s exposition of her injuries are a sham or the residual effects so minor not properly the subject of any damages (apart from some special damages which are agreed).

16. [16]
    As to the question of credit, it is valuable to consider what other evidence if at all there is available to support the plaintiff’s case.

17. [17]
    The evidence of Mr Walker, the physiotherapist who treated the plaintiff, (by reference to treatment notes and to the later notes made by Ms D’Mello herself, in February 2005) was able to point to what I regard as objective evidence of an injury which occurred to the plaintiff. This is not inconsistent with the defendants’ case. However, I regard the continuing treatment by Mr Walker up until August as demonstrating that the injuries to both back and neck (although described in relation to the cervical spine and in particular in relation to the right and left shoulder pains somewhat variously by the plaintiff) nonetheless as supporting evidence that the plaintiff suffered an injury which was more than minimal.

18. [18]
    Mr Honan, a solicitor who was the partner who had considerable contact with the plaintiff, gave evidence to the effect that by December 2005 the plaintiff was very substantially affected by her injuries in the sense that she was much less productive, which was productive of major or significant errors in the way in which she carried out her work. He wrote a report to the other partners in the firm to this effect in December 2005. What is of some significance is that 12 months earlier, in late 2004 and approximately eight months after the accident itself, he wrote a report which can only be described as glowing. In fact, the entire work performance of the plaintiff, in its many and varied categories, he described as “exceptional”.

19. [19]
    It is simply beyond belief that eight months after the incident, the plaintiff’s work, at a time so much closer to the accident, could have been described as exceptional, whereas 12 months on from that report, in December 2005, the witness was quite critical of the plaintiff’s abilities, which he attributed to the effects of the injuries upon her. Mr Honan’s explanation for this divergence of opinion in the two reports he authored is that he deliberately bolstered the plaintiff’s abilities in order to ensure that she would be kept on as his secretary and this was very much for his benefit. Whilst this summarises his evidence, my detailed analysis and consideration of his evidence leads me to conclude that the explanation is risible and that his evidence in relation to her lack of performance 12 months after the December 2004 report should be rejected.

20. [20]
    The effect of Honan’s evidence is that in reality, if it were to be accepted, he deliberately misled his partners (for he was an equity partner at the time of the first report) in December 2004, knowing that that deliberate misleading would encourage the plaintiff to be paid a salary for work which she was simply not fit to carry out. Honan says he told “the truth” in relation to the December 2005 report. I absolutely reject this evidence.

21. [21]
    It is far more likely, and I accept it to be so, that the report of December 2004 was an accurate reflection of the abilities of the plaintiff. This view is supported by the fact that her salary has not, in fact, decreased as a result of her so-called shortcomings. Furthermore, the view I have formed of Mr Honan’s evidence is that he is more likely to have fashioned an account favourable to the plaintiff’s case at a time proximate to the trial. The report in December 2005 was some two months, approximately, before the actual hearing of this matter.

22. [22]
    I have the advantage of observing Mr Honan’s evidence closely when he gave it, to his reactions under cross-examination, and to the actual explanations themselves. All of this has led me to conclude that I should reject his evidence that the plaintiff in late 2004 was not performing well. Had this been so, as I have said, one would have expected to have seen her non-performance reflected in a reduction of her salary or, indeed, if the level of Mr Honan’s concern was as he expressed it in 2005, perhaps her actual dismissal.

23. [23]
    This is not the case and, in fact, the evidence tends to suggest that the plaintiff is still a valued member of the staff of the firm for which she works. A commercial enterprise such as a solicitors’ firm would not, in my view, countenance the 2005 performance as described in Honan’s evidence.

24. [24]
    The view I have formed of Honan’s evidence plays no part in the view I have formed as to the plaintiff’s credit.

25. [25]
    Mr Honan gave evidence of observations of the plaintiff. Whilst I have rejected the extreme description of the plaintiff’s lack of abilities and efficiency in the December 2005 report, I do not, however, consider that his description of her experiencing some difficulties, particularly in the neck area, by manipulating and rubbing her neck should be rejected. Those observations, suggestive of some physical problem in the area may be accepted, for there appears to be other evidence which, if accepted, supports that evidence.

26. [26]
    Fundamental to the plaintiff’s case was the evidence of Dr Todman, a specialist neurologist, who saw the plaintiff on a number of occasions and provided three reports which are exhibits in these proceedings. The plaintiff explained to Dr Todman an accident of “substantial force”, where the car was jolted forward. After the incident and later that day pain which she experienced had intensified and increased. Further, the following day, and within 24 hours, she explained, she began to experience low back pain. After a further two days’ work she had 10 days’ leave and after returning from leave she commenced the course of physiotherapy, taking, at the time, regular analgesics and anti-inflammatory medications. Nothing, in what the plaintiff told Dr Todman, appears to him to be inconsistent with the conclusions which he has drawn, including her sporting and recreational activities and his own observation of Exhibit 14, the DVD.

27. [27]
    Significantly, examination conducted by Dr Todman demonstrated restricted cervical spine movements by approximately 30 degrees for the left and right, and 40 degree restriction forward flexion. There was tenderness and muscle spasm in paravertebral muscles and the cervical spine bilaterally, and over both trapezius muscles. In the lumbar spine there were found to be areas of forward flexion by 30 degrees.

28. [28]
    The review conducted by Dr Todman, of plain X-rays of the cervical spine, showed a straightening in the cervical spine or loss of the normal cervical lordosis consistent with muscle spasm. Dr Todman thought that the mechanism of injury had been a whiplash injury of the spine involving both the cervical and lumbar regions, and although she had appropriate treatment, her responses had only been marginal.

29. [29]
    As at 1 March 2005, the date of Dr Todman’s first report, he considered that the persistent symptoms had stabilised and were likely to represent a permanent state of affairs and referred to literature suggesting that symptoms existing after 12 months were generally regarded as being permanent. He categorised the injury suffered by the plaintiff from the AMA5 Table 15.5 as a cervical injury in a moderate or a DRE category 2, with a range of impairment between 5 to 8 per cent. The lumbar spine injury was regarded as a moderate injury or in the DRE category 2 from AMA Form 5 Table 15.3, representing an injury in the range of 5 to 8 per cent.

30. [30]
    A follow-up report was provided on 17 March 2005, after the plaintiff had submitted to an MRI scan, which showed no evidence of disc protrusion or nerve root compression, excluding any major structural abnormality in the cervical spine. Dr Todman opined that it was likely that the injury complained of by the plaintiff had involved muscles, ligaments and cervical facet joints, with the pain in the left scapular representing a radicular symptom, rather than nerve root compression. The impairment which he regarded as 8 per cent for the cervical injury and 6 per cent for the lumbar spine injury was not affected by the MRI results, in his opinion.

31. [31]
    Prior to trial, on 6 February 2006, Dr Todman again provided a report which noted, amongst other things, a consideration of the reports of witnesses for the defendant, Dr A Reid, a neurologist, and Dr S Good, an occupational medicine specialist. Together with other material, Dr Todman considered their reports and the DVD of the plaintiff’s physical activities, including a netball game. It is relevant to include a passage from this report, for it has some significance in considering the opinions of Dr Reid and Dr Good.;

“The detailed report of Dr F Grigg, forensic engineer, prepared for Jensen McConaghy Solicitors was perused.  Dr Grigg goes into details regarding the mechanics of a rear-end collision which was reportedly of low impact of between 5 to 10 kph.  After reviewing some of the literature related to such whiplash injuries he concludes the following, “The technical literature on whiplash injuries indicates that they can arise as a result of rear-end impacts at speeds as low as 4 kph and thus factors such as the occupant of the struck vehicle having her head turned to the side and being aware of the impending impact increase the risk of injury.  It is also common for the symptoms to not be immediately apparent.”  I would concur with this conclusion. 

The phenomenon of low speed rear-end collision causing whiplash syndrome is well described in the medical literature.  A current review of this syndrome and associated risk and prognostic factors is in chapter 5, Whiplash Injuries in Neurology and Trauma, edited Randolph Evans Saunders, 1966.”

32. [32]
    Dr Todman analysed the report of Dr Reid dated 14/3/2005 and Dr Good dated 14/04/2005. Upon his examination of the plaintiff he concludes that their opinion is wrong and that the cervical and lumbar spine injuries are DRE category 2 injuries, based upon AMA5 Table 15.5. Dr Todman opined, “They represent whiplash injuries of chronic nature which are likely to affect muscles, ligaments and cervical and lumbar facet joints; that is they represent chronic musculo-ligamentis strains to the cervical and lumbar spine respectively. This constitutes a specific diagnosis within the terms AMA5.

33. [33]
    The defendant’s case relied significantly on the evidence provided by Dr Reid and Dr Good. Both Dr Reid and Dr Good accepted that the plaintiff experiences some discomfort which he describes as pain, although they do not attribute this to the motor-vehicle incident.

34. [34]
    Dr Reid in particular is more than sceptical of opinions that suggest musculo-ligamentis injuries may be permanent in a young person following a minor motor-vehicle impact. In my view Dr Reid has not placed sufficient weight on the position of the plaintiff when the injury occurred; that is to say leaning forward, looking to the right whilst wearing a seatbelt and being unaware that the injury was about to occur. I accept, on the evidence, that this was the position of the plaintiff when the injury did occur.

35. [35]
    As to the severity of the impact, whilst it was not severe, I do not accept the evidence of the first defendant, Ms Whiteway, who, by the time of trial, had minimised the impact to about 2 kph. Originally, in a statement provided to the insurer the first defendant said the impact was between 5 and 10 kph. Not only was this an explanation of the speed closer to the time of the incident, but the first defendant’s version changed substantially as the time for trial became closer.

36. [36]
    The first defendant’s evidence did not impress me in her attempted explanation as to why the speed should be regarded as less than 5 kph, which is what she swore to at the time of trial. She has a very particular interest in providing evidence as to the speed, for she was the driver of the vehicle which ran into the plaintiff. In relation to her evidence, I accept that the speed was between 5 and 10 kph - that is, her original estimate - and I do not regard the plaintiff as attempting to exaggerate the seriousness of the impact by manipulating the quotes which she obtained. In the event, I find that the impact was of moderate force (and therefore greater than that accepted by Dr Reid) and entirely consistent with the mainstream medical science referred to by Dr Grigg as suggesting musculo-ligamentis injuries may produce long-term symptoms in a young person.

37. [37]
    In fact, whilst I have referred to the question of credit and issues relating to other objective evidence that may support the plaintiff, I nonetheless have formed the view that the plaintiff’s evidence is evidence which I accept; that is that the plaintiff continues to suffer some continuing pain in her cervical and lumbar spine as a result of the original incident.

38. [38]
    It remains to consider then, the extent, if any, of this disability and whether any residential effects of the injury are capable of an award of damages.

39. [39]
    In deciding questions where expert medical opinion or expert evidence of any kind, for that matter, is controverted, it is tolerably clear that the court, whilst being assisted by the expert evidence, is not obliged simply to accept that evidence. Some analysis of that evidence is required.

40. [40]
    On the view I have formed of the evidence, whilst I accept the plaintiff suffers some residual effects of the incident, I am not persuaded, however, that it is to the extent or degree which is described by her (or indeed by Mr Honan).

41. [41]
    The view that I have formed is, I should say, not dependant at all upon the evidence which demonstrates the plaintiff pursuing physical activities of shopping, walking and playing netball and going to gym. It is clear, and I accept it on the plaintiff’s case, that her impairment is one which involves static activities such as being seated for long periods of time in approximately the same sort of position.

42. [42]
    However, there is evidence which leads to the conclusion that, the impairment is not to the degree which the plaintiff describes.

• She works a normal and lengthy working day (8.30 a.m. to 5.30 p.m.).

This is to be contrasted with the evidence of the witness Hoey, who thought that she could work in the condition in which he described only a four day week.

“In my opinion Ms Whitney is unfit to continue working full time while studying.  I believe her maximum capacity for work as a paralegal (while studying) approximates four days per week.”

Clearly the plaintiff’s capacity is far greater than Mr Hoey believed at the time of his report.

• The first report of Ms Whitney’s performance post-accident in December 2004, which I regard as being accurate and reflective of her actual capabilities, described her performance, effectively in all facets, as “exceptional”.
• Had Ms Whitney’s capabilities diminished to any marked degree, because of the commercial realities of her workplace this would have been reflected in her salary standard. In fact, the evidence suggests her salary has continued to increase.
• There was a sense of exaggeration about the way in which Ms Whitney described having to sit in a swivel chair and move the chair itself, rather than turn her head whilst working.

43. [43]
    In all of the this, I do not consider that there is any deliberate exaggeration by the plaintiff as to the level and degree of her symptoms and this may well be simply her perception in the face of an impending hearing and during the course of giving evidence, itself, that has led her to express her disabilities to an extent which is not, I consider, borne out by the objective evidence.

Assessment of Damages

44. [44]
    In the event I regard Ms Whitney as suffering from a mild disability as a result of the accident.

45. [45]
    There has been some controversy as to special damages, particularly in relation to the use of a chair, visits to doctors, requirements for future physiotherapy, a visit to the general practitioner on 27 September 2004 and controversy as to the modest claim for analgesics, which the defence point to as not being supported by documentation. I will assess the special damages as follows below.

46. [46]
    The question of loss of future earnings has been one of considerable controversy during the course of the trial. The questions which are raised by the defendant are even if there is an incapacity, whether that would affect any future employment as a solicitor; the extent and level of her employment as a solicitor; the failure of her lessening the impact of any (very minor) impairment which, it is argued, would not, in the event, affect her employability and work capacity as a solicitor.

47. [47]
    Outside her working hours the plaintiff has also pursued her legal studies. She is halfway through her course, having completed three years. This is some evidence, to my mind, of the fact that she is capable of enlarging or increasing her working hours beyond merely 8.30am to 5.00pm. On her evidence, her studies have taken place only on part of the weekend, and it seems to me without question that a solicitor would be likely to spend a longer working day than the hours spent by the plaintiff in her working week. However the evidence suggests that she is capable of working longer hours even if outside the structure of an 8.30am to 5.00pm work schedule.

Civil Liability Act Implications

48. [48]
    Civil Liability Act 2003 (CLA) and Regulations apply to these proceedings in the assessment of any damages there under.

49. [49]
    Section 61 of CLA (as amended by the Professional Standards Act 2004) provides:

"61.Assessment by Court of injury scale

1. (1)
   If general damages are to be awarded by a Court in relation to an injury arising after 1 December 2002, the Court must assess an injury scale value as follows-

1. (a)
   the injured person's total general damages must be assigned a numerical value ("injury scale value") on a scale running from zero to 100;

2. (b)
   the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;

3. (c)
   in assessing the injury scale value, the Court must-

1. (i)
   assess the injury scale value under any rules provided under a regulation; and

2. (ii)
   have regard to the injury scale values given to similar injuries in previous proceedings.

1. (2)
   If a Court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the Court must state the factors on which the assessment is based that justify the assessed injury scale value."

50. [50]
    Section 62 of CLA provides for the calculation of general damages according to the assessment of the scale value of the injury and the formulae set out in section 62.

51. [51]
    The Civil Liability Regulation 2003 ("the Regulation") by section 6 provides for rules for the assessment of injury scale values for particular injuries for section 61(1)(c)(i) of CLA.

52. [52]
    Section 6 of the Regulation provides (relevantly):

"6 (1)This section and schedules 3 to 6 provide the rules under which a Court must assess the injury scale value for an injury.)

2. (2)
   Schedule 4 provides the ranges of injury scale values for particular injuries that the Court is to consider in assessing the injury scale value for those injuries.

3. (3)
   For an injury not mentioned in schedule 4, a Court, in assessing an injury scale value for the injury may have regard to the ranges prescribed in schedule 4 for other injuries.

4. (4)
   Schedule 3 provides matters to which a Court is to have regard in the application of schedule 4.

53. [53]
    I find that the injuries suffered by the plaintiff are as follows:

1. (i)
   a soft tissue injury to the cervical spine

2. (ii)
   a soft tissue injury to the lumbar spine

54. [54]
    Section 2 of Schedule 3 of the Regulation provides:

"(1)In assessing the injury scale value (ISV) for an injury mentioned in the injury column of Schedule 4, a Court must consider the range of injury scale values stated in Schedule 4 for the injury.

2. (2)
   The range of ISVs for the injury reflects the level of adverse impact of the injury on the injured person."

55. [55]
    Section 3 of Schedule 3 of the Regulation provides-

"(1)Subject to section 4, in assessing the ISV for multiple injuries, a Court must consider the range of ISVs for the dominant injury of the multiple injuries.

2. (2)
   To reflect the level of adverse impact of multiple injuries on an injured person, the Court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the Court would assess for the dominant injury only."

56. [56]
    The term "dominant injury" is defined in the dictionary (Schedule 7 of the Regulation) in the following way- “‘Dominant injury' of multiple injuries means-

1. (a)
   if the highest range for two or more of the injuries of the multiple injuries is the same - the injury of those injuries selected as the dominant injury by a Court assessing an ISV; OR

2. (b)
   otherwise - the injury of the multiple injuries having the highest range."

57. [57]
    Section 8 of Schedule 3 of the Regulation provides –

"(1)In addition to providing ranges of ISVs for particular injuries, Schedule 4 sets out provisions relevant to using Schedule 4 to assess an ISV for particular injuries. Examples of relevant provisions –

• examples of the injury
• examples of factors affecting ISV assessment
• comments about appropriate level of ISV

2. (2)
   In assessing an ISV, a Court must have regard to those provisions to the extent they are relevant in a particular case.

3. (3)
   The fact that Schedule 4 provides examples of factors affecting an ISV assessment is not intended to discourage a Court from having regard to other factors it considers are relevant in a particular case."

58. [58]
    Section 9 of Schedule 3 of the Regulation gives examples of other matters to which a Court may have regard when assessing an ISV. It does not purport to be an exhaustive list. The examples given are:

“The injured person's age, degree of insight, life expectancy, pain, suffering and loss of amenities of life

• The effects of a pre-existing condition of the injured person
• Difficulties in life likely to have emerged for the injured person whether or not the injury happened
• In assessing an ISV for multiple injuries, the range for, and other provisions of Schedule 4 in relation to an injury other than the dominant injury of the multiple injuries."

59. [59]
    It is necessary to consider each of the injuries individually, which I find that the plaintiff has suffered and determine the categorisation of each injury in accordance with the injury column of Schedule 4 - the cervical spine injury.

60. [60]
    Item 88 – moderate cervical spine injury contemplates an injury that will cause moderate permanent impairment, for which there is objective evidence. Item 89 is minor cervical spine injury, which includes whip lash injuries with no ongoing symptoms other than symptoms that are merely a nuisance remaining more than 18 months after the injuries caused.

61. [61]
    Doctor Todman opined that the injury was a moderate permanent impairment, assessed by him, as equating to an eight per cent permanent impairment. Further evidence of this is supported by the examination of the general practitioner, Doctor Miles at an early stage after the injuries, describing tenderness in the neck and restriction from movement. The physiotherapist, Mr Walker noted muscle spasm during the course of treatment to which the plaintiff subjected herself. Nothing in the type of treatment or in the symptoms, which Walker noted, appears to me, to be inconsistent with Doctor Todman’s ultimate view. In fact Doctor Todman himself noted restricted movement and muscle spasm. Mr Howe an occupational therapist called on behalf of the plaintiff noted also a reduction in movements, stiffness and poor tonic holding capacity.

62. [62]
    I note that there are a variety of descriptions by way of complaint that the plaintiff has made to those whom she consulted. To Doctor Miles and Mr Walker the pain in relation to her cervical spine was described as being on the right side. The plaintiff complained to Doctor Todman of neck pain being continuous on a daily basis. But to Mr Howe the description seemed to have been pain provoked by activity. The plaintiff in speaking to Doctor Reid referred to the pain present after the course of a day’s work and described it, “shooting pain” over the left shoulder. The plaintiff described the pain to Doctor Good as being “intermittent.” In evidence the plaintiff described the neck pain is lasting to two to three days when it occurs.

63. [63]
    The description of pain is of course subjective. I accept what the plaintiff says about the permanent nature of her injuries and I do not regard the descriptions which she has described in various ways as being necessarily inconsistent. On the whole of the evidence which I have accepted the injuries do not fall into Item 89 “minor cervical spine injury” which is categorised as merely a nuisance. I regard the injuries as more properly falling within Item 88, that is an injury causing moderate permanent impairment, for which there is some objective evidence to which I have referred in the evidence of Miles, Walker, Todman and Howe. I consider however, that on the plaintiff’s evidence combined with her work history, demonstrating effectively no time lost because of injuries, and the first report of Mr Honan in December 2004, which describes the abilities of the plaintiff at work in glowing terms to represent a moderate injury at the lower end of the categorisation of Item 88.

The Lumbar Spine Injuries

64. [64]
    The lumbar spine injury has been described in evidence by Doctor Todman as a chronic musculo-ligamentus strain to the lumbar spine. Doctor Reid described the injury as a soft tissue strain to the lumbar spine and Doctor Good described the injury as musculo-ligamentus to a minor degree. The Schedule deals with appropriate categories in relation to this particular injury in Item 93 and describes the injury as “moderate permanent impairment” to which there is objective evidence. Item 94 – minor lumbar spine injury describes an injury where there are no significant clinical findings, no significant loss of motion segment integrity or any other objective signs of impairment relating to the injury or no document and neurological impairment.

65. [65]
    Doctor Todman described the lumbar injury as equating to a six per cent permanent impairment. I accept the evidence of Doctor Todman in preference to that of Doctor Reid and Doctor Good for reasons to which I have referred in relation to the cervical spine injury. Fundamental to Doctor Reid’s evidence was an apparent rejection of a body of accepted opinion that permanent injuries could result from a “whip lash” incident as a result of low speed collision. If it be necessary to further describe the rejection of both the evidence of Doctor Reid and Doctor Good this is based in part, at least upon my acceptance of the evidence of the plaintiff herself that she is suffering permanent injuries she has described.

66. [66]
    There is some objective evidence furthermore in relation to the injury to the lumbar spine found in the evidence of Walker, and muscle spasm to which he referred in his Treatment Plan. Mr Howe noted tenderness and paravertebral muscular spasms. Doctor Todman noted muscle spasm and some restricted movement.

67. [67]
    I am satisfied on all the evidence that the injury permanent as I find it to be it is appropriately within Item 93. I find however, on the evidence that it falls at the lower end of the range of injury described by that item.

68. [68]
    It is necessary to characterise the dominant injury according to the protocol of the CLA. Both injuries fall within that same ISV range. I therefore adopt the cervical spine injury as the dominant injury. The ISV range for the dominant injury being a range of 5 to 10 is sufficient to allow an appropriate ISV to be allocated within that range which adequately reflects the combined adverse affects of all injuries suffered.

69. [69]
    In assessing the Injuries Scale Value (ISV) according to section 61(1) (c) the Court must consider the range of ISV for similar injuries described under the regulation together with the injuries scale values attributed to similar injuries in prior proceedings. I have regard to the following decisions, Troop v Johnston Anor (2005) QDC 79, a cervical spine injury (together with other injuries at an ISV of 13 was thought to be inadequate and an uplift to 16 was judged appropriate) Tom Lins v Scheik (2005) QDC 174, a soft tissue injury to the cervical spine.  An ISV of 6 was regarded as appropriate.  Ballesteros v Schidlow Anor (2005) QSC 280, soft tissue injury to the cervical spine appraised at an ISV of 7 uplifted to 9 to accommodate a further injury.  Schmidt v Dobb Anor (2006) QDC 6, a soft tissue injury to the cervical spine providing an ISV of 8.

70. [70]
    A range of ISV up to 10 comfortably accommodates the appropriate range of both the dominant injury and a further calculation for the additional effect of the lumbar spine injury. It is not appropriate in my view that uplift be given in this case (nor is it sought in any event by the plaintiff.) The cervical spine injury should be categorised at an ISV of 6 and combined with the effect of the lumbar spine injury, the total ISV is determined as ISV 8. An ISV of 8 provides a figure $8600 for general damages.

Future Loss of Earnings

71. [71]
    The assessment of loss of future earnings is dependant upon the level of disability, whether that creates a loss of opportunity in terms of earnings and the earning level of the plaintiff.

72. [72]
    I have accepted the plaintiff’s evidence that she suffers and will continue to suffer from a impairment related both to the cervical spine and the lumbar spine. The evidence of Dr Todman, which I accept, is also helpful in assessing the level of that impairment, although it is evidence which is not unaffected by other evidence presented.

73. [73]
    A number of factors are relevant. These include the fact that the plaintiff has lost no income or time at work, effectively, since returning to work after the incident. The plaintiff has not resorted to (apart from one occasion in February 2005) the assistance of a physiotherapist. Nor has the plaintiff apparently felt the need to utilise the device of a book rest/stand to assist the problem she describes relating to reading and pain in the neck area. I have accepted that the report of Mr Honan represents, as reported in December 2004, an informative and practical assessment of the plaintiff's capabilities at work and therefore of her productivity. Furthermore, the plaintiff, after a working day of between 8.30 a.m. and 5 p.m., can recover from the rigours and difficulties associated with her work in a physical sense, to enable her to pursue gym and sporting activities. The rapidity of recovery is a further, although perhaps small, indicator of her ability to deal with her work and the sort of hours which she could confidently undertake without any physical difficulty leading to loss of productivity. The plaintiff gave evidence that beyond her working hours she was able to spend time pursuing her studies, which amounted to approximately four hours on a weekend. This is suggestive of her ability to spend further time beyond working hours in her chosen profession as a solicitor should she qualify. In fact generally, the fact that no work time has been lost nor sick time taken and the diligence with which she has pursued her studies suggests, with the other factors to which I have adverted, that there is very little likelihood of lack of performance and under-productivity that would be expected of her working as a solicitor.

74. [74]
    All of this leads to a conclusion, in my view, that the level of impairment is likely to be minimal in her future working environment, although I accept that the work of a solicitor will require longer hours than she presently works. In considering the question of lost opportunity to earn, there are a number of unknowns, imponderables and variables, which will ultimately affect her future earning capacity. A global assessment is sought (in accordance with the provisions of s. 5.5 of CLA). A global assessment is entirely appropriate and, indeed, the only rational approach to take in such circumstances.

75. [75]
    The mere existence of an impairment does not, of itself, affect her earning capacity. On the evidence and the pursuit of the formal qualifications which the plaintiff has displayed, I am prepared to accept that she will ultimately finish her degree and be able to be admitted as a solicitor. It is unnecessary, I think, to determine whether it is proper to categorise the work she presently undertakes as that of secretary or paralegal, the evidence being that different firms categorise the duties differently. That she performs her present duties, according to Mr Honan, in an exceptional way does not, in my view, necessarily indicate the standard of her work as a solicitor. Her performance, therefore, in her chosen profession is something which simply cannot be known at this stage, although, as I have said, she has displayed some diligence, at least, in her pursuit of that career, and I take that into account. Although the longevity of her working life is unknown, I am prepared to accept that she will work until 65 years of age, and there is no evidence that that working life would be interrupted by her having a family or that she will choose to work anything other than full time. I therefore accept her working life to be a full time commitment. Her ultimate level as a legal practitioner, be that as employed solicitor or partner, is so much dependant upon her abilities as a solicitor that it is impossible to predict a level to which she may rise in the pursuit of her career.

76. [76]
    Although I have considered that in this day and age a sympathetic and accommodating solicitor or firm, cognisant of the plaintiff’s limitations, would most likely provide for idiosyncratic working conditions for her, there is no evidence to this effect and it is not appropriate to add this to the many ingredients in assessing loss of opportunity to earn.

77. [77]
    There is nothing in the evidence to suggest that her back and/or neck will further deteriorate with time and, on the evidence, having regard to the level of disability which I have determined, that is to the milder end of moderate, there is nothing to suggest that the plaintiff will not be appropriately productive for most of the time she is required to work as a solicitor, even having regard to extended hours beyond those which she presently works. The evidence, in effect, establishes little loss of competitive edge when regard is had to the level of her disability in terms of its effect upon her work.

Salary Issues

78. [78]
    Some assistance was provided by witnesses who gave evidence of various salary levels. There are a number of imponderables in considering the question of salary range itself. The plaintiff has had a great deal of exposure to the area of personal injuries litigation and it is possible, but by no means certain, that her starting salary might be somewhat higher than an untried first year solicitor, particularly should the plaintiff be kept on as a solicitor in the firm for which she presently works. Mr Davidson considers that the plaintiff's disabilities, as he understood them, were likely to keep her salary range at about a level of $80,000 to $85,000 (inclusive of superannuation) when her realistic earning potential would have been in the range of $100,000 to $120,000. Any calculation made in relation to the plaintiff’s salary, in any event, should not be considered until the completion of her degree, which is probably in about three years’ time.

79. [79]
    I accept, even although there will be limited effect on the plaintiff's productivity, it may be that she willdiscover, should she need to change jobs or find an initial position, that her disability will be regarded by potential employers as a likely drawback for her, thus leading to some periods of unemployment.

80. [80]
    Furthermore, the plaintiff submits that she is at risk of losing whatever premium her experience would yield in the first two years or so post-admission. The plaintiff submits that there is a likely loss of up to $20,000 per annum gross (including superannuation) from approximately age 35, which is equivalent in net terms to about $12,000 per annum.

81. [81]
    Furthermore, from about 40 years of age it is submitted that the limitations imposed by her injuries are likely to cost her the opportunity to earn additional income of at least $200 net per week, because her career will “stall” at a salary level of about $80,000 to $85,000 per year. This, it is submitted, equates to a loss of over $100,000.

82. [82]
    Ultimately, the plaintiff’s submission is that there is a range of future loss between $280,000 at its highest, and $100,000 at the bottom of the range.

83. [83]
    It is tolerably clear on the evidence of Mr Davidson and Mr Ashton that a considerable range is established, much of which depends on a variety of factors, some of which are incapable of any realistic quantification. What can be said is that the abilities of the plaintiff as a solicitor are completely unknown and, on the view of the evidence I have formed, her disability is likely to figure to a relatively minor extent in her ability to work as a solicitor. Because of the disability and the level of it which I have found nonetheless, there are likely to be difficulties during her working life gaining employment because of it. It cannot be supposed that the plaintiff will work for one firm for her entire working life.

84. [84]
    I therefore assess her loss of future earnings globally, in the sum of $60,000.

Future Expenses

85. [85]
    There is a real possibility that the plaintiff will require, from time to time, medication for pain which she will experience from time to time. Furthermore, even although she attended a physiotherapist only once in February 2005, since the earlier regime of treatment with Mr Walker, nonetheless there is the possibility for further such treatments during her lifetime. I will allow, as reasonable, a sum of $1,000 for such expenses.

Special Damages

86. [86]
    Some special damages are agreed, and others are contested. I accept her medication expenses of $141.60 are supported by the evidence as are travelling expenses of $38.00 and physiotherapy fees of $45.00. I will allow $119.00 for the workstation but will disallow the high back chair the use of which is not supported by the evidence. I will allow $66.00 fir the Medicare charge on the basis that part, at least of the visit to the General Practitioner may be regarded as injury related. The total is therefore $409.60.

87. [87]
    In summary, I assess the plaintiff’s damages as follows:

General damages $8600.00

Future loss of earnings $60,000.00

Special damages $409.60

Future expenses $1000

88. [88]
    I give judgement for the plaintiff against the defendant in the sum of $70,009.60.