DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff is Evelyn Schmidt. She is a young woman from the Philippines. She travelled to Australia in early 2002 to join her present husband Andrew Schmidt, a young Australian she met in the Philippines. She was working as a room attendant at a hotel, the Palazzo Versace, at the Gold Coast when injured in a motor vehicle accident.

2. [2]
   The vehicle in which she was travelling was struck from behind. She suffered a whiplash injury to her cervical spine from the impact. The driver of the other vehicle was responsible for the collision. While liability for her injury is admitted by the other driver’s insurer, the assessment of damages is in dispute. As a consequence this court is asked to assess damages.

The issues

3. [3]
   The issues which arise for determination are the assessments for general damages, economic loss, and a Griffith v Kerkemeyer claim.

Background evidence

4. [4]
   The evidence can be summarised briefly. Evelyn Schmidt is the plaintiff’s married name. She and Andrew married on 17 March 2003 in Australia. She is a slim woman of 25 with (I thought) a good command of English. In the Philippines she completed a Bachelor of Science (computer science).

5. [5]
   She said she had trouble finding work in Australia. She was living on the Gold Coast, which, I suppose, narrowed her vocational choices. One problem she said lay with her degree, which did not carry the same recognition as an equivalent Australian qualification. She thought another problem lay with her language skills as English is not her first language.

6. [6]
   She was unable to find work using her computer qualifications. Nor was she able to find office or clerical work. As a result she was effectively unemployed from June to December 2002, when she obtained work at the Palazzo Versace as a room attendant (3 December 2002).

7. [7]
   As a room attendant she was required to clean rooms; this included stripping and making beds with clean linen, cleaning spas (every room had a spa), generally cleaning the bathroom areas, and vacuuming. A room attendant is expected to clean 12 rooms in an eight hour shift. At this time she usually worked five days a week, although sometimes on half day shifts. In December 2004 she was offered a full‑time position. During last year (2005) she normally worked a six hour day on Mondays, and eight hour days on Tuesdays, Wednesdays, Thursdays and Fridays. The shorter day on Mondays was to allow her extra time to attend a local TAFE.

8. [8]
   The motor vehicle accident happened on the way home from work on Tuesday 1 April 2003. She was a passenger in the car when it was struck from behind. The force of impact propelled it into the car in front. Her immediate response, she said, was that she became shaky and nervous and developed pain in the neck and shoulder. On 4 April (a Friday) she went to see a local GP (Dr Sue Blum). At that time she complained of pain in the neck and shoulder area, and headache. She also injured her left wrist in the accident, however, this injury settled after a few weeks.^[1]

9. [9]
   The plaintiff says that before the accident she coped with the physical aspects of her work without experiencing pain. Since the accident she says that she experiences pain on a daily basis, and suffers headaches weekly. The pain is in her neck and shoulders.^[2]  She says that at the end of a shift (as a room attendant) she was struggling. She felt physically tired and experienced pain. The level of pain varied: some days she had difficulty completing her work within time, and asked her supervisor for assistance. At those times another room attendant was assigned to assist her. Her immediate supervisor as a room attendant was her aunt, a Mrs Bitner. Mrs Bitner confirmed these aspects of her evidence when called as a witness. The plaintiff said she used Panadol for pain relief two or three times a week. On average she said she purchased a packet of Panadol tablets once a month.

10. [10]
    Despite these difficulties, the plaintiff received good assessments at her work place. The impression I have of the plaintiff is that she has a strong work ethic. After the accident she continued working as a room attendant until she obtained a position as a house person at the Palazzo Versace (August 2005). The position of house person is a lighter job. As a house person she is required to attend to the requests of guests. Although this may involve making up an additional bed, generally the job is not physically demanding.^[3]  I was left with the impression she is coping reasonably well with the house person role, although she may still experience pain during a shift if required to perform heavier tasks (for example, bed making).

11. [11]
    The plaintiff’s evidence did not go unchallenged. The defence demonstrated the plaintiff overstated her claim in a number of respects.^[4]  Mr Ambrose SC, for the defendants, also pointed out that in the two and a half years since the accident she has only consulted a general practitioner three times for treatment for her neck/shoulder pain. Indeed, over that whole period of time, she did not draw on her sick leave, and at one point cashed in her accumulated unpaid sick leave. She responded to these criticisms by claiming that she in effect used some recreation leave to rest at home, and that as rest and analgesics were the only treatment medical science offered to her, more frequent consultations would not have served any useful purpose. The overstatements in her evidence reflect carelessness with detail and a willingness to overstate those aspects of her case. On the other hand I am satisfied she did suffer a whiplash injury which has caused her continuing pain.

The medical evidence

12. [12]
    As I have noted the plaintiff attended a general practitioner three times for help with her neck and shoulder pain.^[5]  Her explanation for only three consultations is that the only medical treatment was advice to take analgesics and rest.

13. [13]
    At trial evidence was called from two medical specialists: Dr Todman for the plaintiff and Dr Saines for the defendants. Both are neurologists. Both gave opinion evidence of the plaintiff’s level of impairment assessed in conformity with the AMA guides for the assessment of impairment. Dr Todman thought the plaintiff should be assessed at 5 percent whole person impairment (DRE category 2). Dr Saines thought the plaintiff should be assessed at 0 percent whole person impairment (DRE category 1).

14. [14]
    The resolution of the conflict in the expert opinion evidence is of some importance as the award for general damages is governed by the Civil  Liability Act 2003 (CL Act).^[6]  Under the CL Act a court determining general damages must assign an injury scale value (ISV) for the claimant’s injury. In calculating an ISV, the Civil Liability Regulations 2003 (the CL Regulations) explicitly provide that the extent of whole person impairment is an important consideration, but not the only consideration, when determining the selection of an ISV. Accordingly, it is necessary to examine with greater care the competing opinion evidence in this case.

15. [15]
    DRE category 1 is an appropriate classification where no significant clinical findings are present.^[7]  DRE category 2 is an appropriate classification where the clinical history and findings are compatible with a specific injury.^[8]

16. [16]
    Dr Todman’s conclusion, as I understood his evidence, is based on the clinical findings (on 31 May 2004) of muscle spasm and restriction of movement of the plaintiff’s cervical spine. During a second examination (18 August 2005) he found muscle soreness, rather than muscle spasm, which he interpreted as evidence of past muscle spasm. He also found, consistently with his earlier examination, a restricted range of movement of her cervical spine. By way of contrast Dr Saines, when he examined the plaintiff, did not detect muscle spasm, or any restriction of movement of the cervical spine. In evidence Dr Saines pointed to the absence of evidence of muscle spasm or restriction of movement in the initial examination by Dr S. Blum (4 April 2003).

17. [17]
    Set out below in table form are the relevant medical examinations and findings of the plaintiff:

18. [18]
    A restricted range of movement of the plaintiff’s cervical spine is a reasonably consistent finding. Muscle spasm is not a consistent finding. The inconsistent findings may reflect the fact the plaintiff’s symptoms fluctuate. The plaintiff’s evidence of course is that her symptoms did fluctuate. Overall I prefer Dr Todman’s opinion evidence to that of Dr Saines because I think the presence of muscle spasm on one occasion is more significant than the absence of muscle spasm on another occasion; and because a finding of a restricted range of movement of the cervical spine is a reasonably consistent finding (Dr Todman, Dr J. Blum, Dr Dias).

The plaintiff’s injury scale value (ISV)

19. [19]
    The first step in determining an ISV is to identify the appropriate item (injury) in schedule 4 of the CL Regulation. The plaintiff’s case is that the appropriate item is item 88 (moderate cervical spine injury – soft tissue injury). Based largely on Dr Saines’s opinion evidence the defendant argues for item 89 (minor cervical spine injury) rather than item 88. Item 89 is appropriate for whiplash injuries with no ongoing symptoms other than symptoms which have only nuisance value. Item 88 is appropriate for cases of moderate permanent impairment, for which there is objective evidence. I believe the combination of the finding of restricted range of movement of the cervical spine and the intermittent finding of muscle spasm, in the context of the plaintiff’s ongoing symptoms, point to item 88 (moderate cervical spine injury – soft tissue damage).

20. [20]
    The range provided by item 88 is 5 to 10. The second step in the process is to select the appropriate ISV within the range (in this case within the range 5 to 10). Dr Todman thought the plaintiff had a 5 per cent whole person impairment where the range in AMA 5 DRE cervical category 2 is 5 per cent to 8 per cent impairment of the whole person. This would suggest a number in the bottom half of the range for item 88 may be appropriate. Mr Lynch, who appeared for the plaintiff, stressed her relative youth. This is an obvious point, recognised in the CL Regulation.^[9]  Her pain has been ongoing now for more than two years, and is more than merely a nuisance. In addition, in my assessment of her work ethic it is probable she will choose to work even if experiencing pain. In all the circumstances I believe an ISV of 8 represents a fair assessment. This calculates out to $8,600 for general damages.

Economic loss

21. [21]
    Because the plaintiff continued working after the accident for broadly the same hours that she worked before the accident, the only past economic loss claimed is her inability to accept the offers to work additional hours from time to time. This claim is based on the plaintiff’s evidence that after the accident on a number of occasions she declined the opportunity to work additional hours because of neck/shoulder pain. On this aspect the plaintiff’s evidence is confirmed by her immediate supervisor (Mrs Bitner). The plaintiff’s recollection, however, is somewhat sketchy as to the exact number of times that she declined the offer to work additional hours. In the circumstances, $122 will be allowed for past economic loss.^[10]

22. [22]
    The claim for future economic loss is put in two ways. Firstly, it is said the plaintiff is at a disadvantage on the open labour market because of her injury. Secondly, it is said that if she does successfully retrain and obtain work in the travel industry, she will nonetheless be at a disadvantage in the travel industry because of her injury.

23. [23]
    I agree the plaintiff would be at a disadvantage on the labour market.^[11]  At her present employment she has recently been able to move to a job (house person) with lighter duties without suffering any financial penalty. I accept her evidence she was struggling with the work load of a room attendant. It is probable she would have difficulty with a range of jobs on the labour market; and, as a consequence, her employment opportunities have been reduced by the injuries she sustained in the accident. I note also she took almost six months before she was able to find the room attendant job. There is no precise method of determining a fair allowance for future economic loss based on disadvantage on the labour market. Consistently with past awards for future economic loss, a global amount of $22,500 to $25,000 is reasonable.

24. [24]
    While working at Palazzo Versace the plaintiff has been studying at evenings at a local TAFE. Her immediate goal is to obtain qualifications to work as an airline reservations clerk or travel consultant. In view of her tertiary qualifications in the Philippines I think it is likely she will obtain TAFE-based qualifications. If she succeeds in finding work in the tourist industry using her computer skills, it becomes irrelevant to consider the general labour market when determining her economic loss.^[12]

25. [25]
    Mr Lynch submitted the plaintiff’s loss in these circumstances derives from the limitations the injury places on her ability to remain working at a computer screen for long periods of time. The difficulties in constructing a loss on this basis are simply the uncertainties in the evidence. Dr Todman, in his report dated 18 August 2005, noted the plaintiff… “experiences a lot of symptoms with bending, lifting or working at a computer.”^[13]  The plaintiff said in evidence she notices that after about an hour in front of a computer screen she feels pain in her neck.^[14]  In response she changes her position and does neck exercises. Nonetheless, she is concerned about her ability to work at a computer on full-time basis. Her attitude is that she will endeavour to find work as a travel consultant or airline reservation clerk and then after that “see how I go”. I infer from the fact she has undertaken the TAFE course that she believes she is capable of working in the tourist industry, despite the concern she has about working at a computer terminal for extended periods of time.

26. [26]
    I was referred to an award by Byrne J^[15] of $60,000. In that case, the uncertainties in the evidence only allowed a global assessment of economic loss. The plaintiff there held micro-electrics and information technology degrees and was working full-time in IT. His work situation was adequately documented at trial: medical reports and an occupational therapist’s report were placed before the court. The information before the Supreme Court therefore was more complete than the information placed before me. Although assessments of future economic loss are by their nature attended by uncertainties, the comment can be made that only the essential minimum of information has been placed before me.

27. [27]
    The uncertainties in the evidence only permit a global assessment of future economic loss on the basis the plaintiff obtains work with her TAFE based qualifications and using her expertise with computers. I accept Dr Todman’s opinion evidence the plaintiff has suffered a 5 per cent impairment of the whole person. I accept generally her evidence of the pain associated with her neck and shoulders, and in particular her evidence that she experiences pain after about an hour at a computer screen. I note also the reference to pain when at a computer screen in Dr Todman’s report. The plaintiff is still a young woman. On that evidence I am satisfied the plaintiff will suffer loss.^[16]  It is probable she will struggle working full-time and will struggle in employment which requires her to work longer hours. In these circumstances only a small average weekly loss, because of her expected working life, will lead to a moderate claim. Allowing for material contingencies and the uncertainties in the evidence, $25,000 is at this point in time a reasonable assessment for future economic loss.

28. [28]
    As the assessment for future economic loss is substantially the same, whichever basis is selected, $25,000 will be allowed for economic loss.

Griffith v Kerkemeyer

29. [29]
    Damages for gratuitous services are controlled by section 55(D)(1)(A) Motor Accident Insurance Act. Although the section has since been amended, at the relevant time, the section allowed a claim for gratuitous services if provided for no less than six months.^[17]  In this case I accept that for a period of not less than six months the plaintiff received gratuitous services from her husband on a weekly basis. As I understand the evidence, it is not so much that she was unable to do housework (that after all, was her full-time work) but that, at the end of the working day she felt sore and needed assistance with any heavier housework.

30. [30]
    Although the claim for gratuitous services is for housekeeping services, it also includes a component for massage from her husband, which the plaintiff says eases her pain. Mr Ambrose SC questioned whether massages can be claimed as the husband has no relevant qualifications. Provided a professional fee is not charged, and the massage is effective in easing pain, I think it may be claimed as gratuitous care.

31. [31]
    The evidence on this aspect of the case falls into three periods. Before the accident the plaintiff appears to have done the bulk of the housework. At that stage she and her husband were living with her parents-in-law and she wished to make a good impression. Moreover, at that stage she said her husband did not know how to cook. After the accident she continued to do most of the housework, despite being sore and tired after work. In this period she did ask her husband to help with the heavier work. He also massaged her neck and shoulders after work. By the date of trial he had obviously become competent at cooking, washing and cleaning. She accepted the position once again changed after she started work as a house person. Her duties as house person were lighter and there was not the same necessity for her husband to assist her with housework. In evidence she commented that they shared the ordinary tasks of housekeeping between them.^[18]

32. [32]
    While I am satisfied the plaintiff is entitled to an allowance for gratuitous services, at least from the time of the accident to the time she obtained the house person position, I do not believe the amount claimed of 3.5 hours per week can be justified and I believe the amount claimed overstates the plaintiff’s case. One hour to 45 minutes a week is a more realistic figure. The original arrangement in which the plaintiff did almost all of the housework was not an equitable one, and is not one which the law is concerned to preserve through the way in which it awards damages.

33. [33]
    The argument, on the evidence, for future gratuitous care is not a strong one. I think the best course is to allow a modest sum for future gratuitous care on the footing that from time to time the plaintiff will need assistance. In the circumstances, $2,500 is a reasonable allowance for this purpose.

Miscellaneous matters and summary of assessment

34. [34]
    Special damages of $202.55 is established (see Exhibit 20). The current treasury 10 year bond rate is 5.410 percentage. The rate of $15 per hour for gratuitous care is agreed between the parties. The award for past gratuitous care therefore calculates out at $1,800 (120 weeks x 1 hour x 15). In addition it is reasonable to allow a sum for the future purchase of analgesics. $400 seems a reasonable allowance for this purpose.

35. [35]
    The components of the award therefore are as follows:

36. [36]
    Judgment is given to the plaintiff in the sum of $41,222.05