Cook v Bowen[2007] QDC 108

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was injured in a motor vehicle accident on 28 October 2004 when the vehicle she was driving, which had stopped behind another vehicle that was giving way to oncoming traffic before turning right, was struck from behind by the first defendant’s vehicle.  Liability was admitted on the pleadings, and it remains to assess the plaintiff’s damages.  These must be assessed in accordance with the Civil Liability Act 2003 and the Civil Liability Regulation.

2. [2]
   The plaintiff’s vehicle was struck with some considerable force, and the plaintiff was initially shaken but not immediately conscious of any significant injury: p 19.  To some extent she was distracted by concern about the welfare of four children who were in the car at the time.  A few hours later she was aware of a headache, pain in the back and neck, and left wrist, pain in a leg, and a general sensation of feeling sore.  About one week later she saw her general practitioner who recommended analgesics^[1] and physiotherapy.  She tried physiotherapy but found it quite painful:  p 27.  The problems in the wrist and back subsided after about a week, but the pain in the left side of the neck and the left shoulder blade have stayed the same; the headaches have changed to a tension over the head and neck at times, mainly when driving.  The symptoms are not constant but she gets them every day; various activities bring them on or stir them up:  p 21.  The plaintiff’s credit was not challenged in cross‑examination, and I accept her evidence.

Medical Evidence

3. [3]
   She was seen for the purposes of a report on 4 October 2005 by Dr Pentis, an orthopaedic surgeon:  Exhibit 1.  He noted that she had complained of severe pain for about a week, after which the pain had been essentially constant.  That was also the plaintiff’s evidence to me:  p 19.  The principal source of pain was in the neck and the left shoulder blade, with a vice like pressure in the neck and occipital musculature.  Turning her head was difficult, for example in reversing a vehicle, and there was difficulty in lifting things, there was some sleep disturbance and difficulties with some household activities, in particular ironing.  She was otherwise generally fit apart from asthma.

4. [4]
   On examination there was tenderness in the left occipital, left cervical and left cervicoscapula musculature, and the inner border of the left scapula region. There was a decreased range of movement of her neck to the right in lateral rotation and flexion and in rotation. There was pain in stressing the upper limb girdle. Otherwise, there was no abnormality. No x‑rays were reviewed.  Dr Pentis was of the opinion that the plaintiff had suffered soft tissue musculo-ligamentus injuries to the cervical and occipital region of her spine, which would cause pain and inconvenience.  She had been left with a residual weakness and propensity to easier aggravation of the spine.

5. [5]
   He put her in DRE category 2 for cervical spine impairment in the AMA fifth edition guide, on the basis of the altered range of movement of the neck, using table 15.5.  As a result, there was a 5% to 8% whole body impairment.   Dr Pentis noted there was no indication in AMA 5 as to the impairment associated with injuries to the occipital region of the spine.  He considered the plaintiff should stay away from strenuous aggravating activity, such as straining the upper limb girdle or heavy lifting.  The incapacity was permanent, but he did not expect any great deterioration.  Dr Pentis was not cross‑examined on his report:  p 11.

6. [6]
   The plaintiff was seen on 10 March 2006 by Dr Nutting, an orthopaedic surgeon, at the instance of the defendants for the purposes of a report:  Exhibit 3.  He noted that the plaintiff was sore initially, saw her doctor about one week later and was treated with physiotherapy, analgesia and anti-inflammatories.  She was told it would settle in time, but it had not done so.  She had tried physiotherapy three times, but each time it actually aggravated her condition.  The symptoms, apart from those related to the neck and shoulder, had subsequently subsided.  She complained of discomfort on the left side of the neck radiating into the shoulder blade, aggravated by driving, to some extent by pushing a shopping trolley, using her left arm above her head height, carrying something relatively heavy such as a full clothes basket, or otherwise putting any pressure on the left arm.  There was some difficulty sleeping on the left side, and she limited vacuuming and ironing.

7. [7]
   On examination, there was no obvious wasting of musculature, there was discomfort in the area of the left trapezius muscle radiating as far as the inion, all movements of the neck were tentative and associated with left trapezius area discomfort, shoulder movements cause pain on rotation but movements were comparable and there was no neurological deficit in either of the upper limbs. He also saw no x‑rays.  Dr Nutting would place her in DRE cervical category 1, as a result of which there was a 0% impairment of the whole person for the purposes of AMA 5.  He thought it likely she had achieved maximum medical improvement and did not think any other specialist opinion was required.  He did not think the injury would impact on her capacity for work.

8. [8]
   On cross‑examination it emerged that Dr Nutting was not able to say definitely whether or not the plaintiff had the altered range of movement of her neck to the right which was relied on by Dr Pentis for placing her injury in DRE category 2.^[2]  Essentially, he put her in DRE category 1 because he did not detect anything which would qualify her for a DRE category 2 injury, although he did concede that he had no reason to doubt that she was telling the truth about her symptoms (p 36), and it does seem to me that the continuation of the symptoms, aggravated as they were by any sort of strenuous activity, must mean that in a practical sense there has to be some functional impairment to her body as a result of this injury.  As a result, a 0% impairment rating is contra‑intuitive.

9. [9]
   It became apparent that Dr Nutting was not in a position to say that the plaintiff did not have the altered range of movement to her neck, he was just not able to say whether or not this was present.  Effectively therefore Dr Pentis was of the opinion, an opinion not challenged on cross‑examination, that this was present, and Dr Nutting was not in a position to express a definite opinion that it was not present.  I therefore find that on the basis of Dr Pentis’ evidence the plaintiff does have an altered range of movement of her neck to the right, and I accept Dr Pentis’ evidence that in those circumstances it is appropriate to place her injury in DRE category 2.

General damages

10. [10]
    It was submitted on behalf of the plaintiff that she had suffered five injuries: a soft tissue to the cervical spine, soft tissue injury to the occipital region of the spine, soft tissue injury to the left shoulder region, an injury to the left wrist, and an injury to the lower back. However, the Civil Liability Regulation makes no specific provision for injury to the occipital region of the spine. The occipital region is that part of the spine which is above the cervical spine. The orthopaedic injuries in part 6 of schedule 4 of the Regulation refer only to cervical spine injuries (division 1) and thoracic or lumbar spine injuries (division 2), and I think it likely that the regulation was intended to cover all injuries to the spine, dividing the spine into only those three regions.  I think it unlikely that any significant area of the spine was intended not to be covered by divisions 1 or 2 of part 6, and in those circumstances the occipital region of the spine should be included for the purposes of the Regulation in the cervical spine, and any other part of the spine should be included in the injuries covered by division 2 of part 6 of schedule 4.

11. [11]
    In those circumstances, the injuries to the cervical spine and occipital region of the spine really only amount to one injury.^[3]  I accept, however, that there were also injuries to the left shoulder, left wrist, and to the lower back.  The last two were not persisting; there is some continuing problem with the left shoulder, but there was no particular whole body assessment for it and I assume therefore that the left shoulder injury viewed separately is not as significant.  The defendant submitted that there was no separate injury to the left shoulder on the basis that this was just referred pain from the neck injury; but there was no support for this submission in the medical evidence.  Dr Pentis referred to pain in the left shoulder blade musculature:  Exhibit 1.  Dr Nutting referred to an “injury to … the cervical spine and left shoulder region”:  Exhibit 3.  I find there was a left shoulder injury which is in Item 98, the lowest item for a shoulder injury, with a maximum ISV of 5.  The injury to the left wrist is in Item 108, the lowest wrist injury item, with a maximum ISV of 5.  The lower back pain is in Item 94, the lowest thoracic or lumber spine injury item, with a maximum ISV of 4.

12. [12]
    The injury to the cervical spine in my opinion is in Item 88.^[4]  There was moderate permanent impairment, and there was objective evidence for it found by Dr Pentis in his examination in relation to the tenderness and restriction of rotation to the right.  That is consistent with a whole body impairment under AMA 5 of 5% to 8%, in view of the comment in the Regulation to Item 88.  In isolation, the injury to the cervical spine would not justify an ISV above 10 in view of that comment.  Because the maximum ISV for Item 88 goes up to 10, this is the dominant injury.

13. [13]
    Multiple injuries are to be assessed under the Regulation in the manner described in Ballesteros v Chidlow [2005] QSC 280 by White J, and in Coop v Johnston [2005] QDC 79.  The injury to the shoulder is of some continuing significance, but the other two injuries abated within a week and are of little significance in themselves, though they should not be disregarded.  The plaintiff has suffered a certain amount of pain, but in the past she has been able to manage the pain effectively, largely by modifying her activities to avoid anything strenuous, or to avoid persisting in any activity which was aggravating her neck or her shoulder pain.  This has been assisted by the fact that she has not been in employment, although her condition has been aggravated somewhat during the last couple of months by her assistance of her partner in his business, which is installing blinds and curtains.  This seems to be relatively undemanding physical work, but sometimes it involves holding some weight and sometimes working above shoulder height, and there are difficulties associated with both of these.  If the plaintiff were in employment, I think it likely that she would suffer a good deal more pain, and that must be borne in mind.

14. [14]
    With regard to earlier decisions, I think that overall the injuries suffered by the plaintiff in Coop v Johnston (supra) were worse.  There is some similarity with the injuries in Ballesteros v Chidlow (supra), though that plaintiff’s symptoms associated with the major injury, the cervical spine injury, had significantly abated.  There the other injuries attributable to the accident were all quite minor, and produced and increase in an ISV of 7 just for the neck injury to an ISV of 9.  That plaintiff was of a similar age to the present plaintiff, but in the present case I think the shoulder injury is of greater significance than any of the additional injuries in that case, and overall the present plaintiff seems to be worse off than that plaintiff.  That suggests an ISV in excess of 9.

15. [15]
    There have been a number of cases where I think that the plaintiffs were significantly worse off than the present plaintiff: Clement v Backo [2006] QSC 129; Johansson v Hare [2006] QSC 223, Carroll v Coomber [2006] QDC 146.  Schmidt v Dobb [2006] QDC 6 concerned a whiplash injury to the cervical spine leaving the plaintiff with pain in her neck and shoulders and weekly headaches, made worse by the more strenuous aspects of her work with which she had persisted.  In view of the age of the plaintiff (somewhat younger than this plaintiff) and her persistence in work an ISV of 8 was assessed, though apparently in that case there were no other injuries.  There was also only a neck injury in Tomlins v Sheikh [2005] QDC 174 where an ISV of 6 was assessed for a neck injury; I think the present plaintiff was rather worse off than that plaintiff.

16. [16]
    In Hook v Boream [2006] QDC 279, the plaintiff suffered neck and low back pain, bruising and swelling to her lower leg, and widespread muscular pain most of which subsided fairly quickly.  There was also a psychiatric injury.  The neck injury was the dominant injury, but particularly in the light of the psychiatric symptoms an ISV of 13 was assessed.  On the whole, I think that that plaintiff was worse off than the present plaintiff.  The symptoms were similar in Raffault v Gillard [2006] QDC 403, where an ISV of 12 was assessed, again taking into account some psychiatric injury in the form of an adjustment disorder and depressed mood.

17. [17]
    In Brennan v Ensinger and Anor^[5] the plaintiff suffered an injury to the cervical spine assessed by Dr Pentis involving a 5% to 7.5% loss of use of the spine, which had caused some interference in the plaintiff’s work and difficult with more strenuous activities.  The trial judge rejected a claim that she had also suffered another injury, and assessed an ISV of 8 on the basis of injury 88.  In Cooper v Nguyen and Anor^[6] the plaintiff suffered an injury to the neck in a motor vehicle accident which was assessed at an ISV 10 within Item 88.  She also suffered an injury to the thoracic spine, as a result of which the ISV was increased to 13.  The injury to the neck appears to have been significantly worse than the other injury, and the neck injury in that case seems to have been similar in its effects and consequences to the neck injury suffered by the present plaintiff.

18. [18]
    The plaintiff is now 36: p 12.  In all the circumstances, and bearing in mind the earlier decisions to which I have referred, and the fact that I think it likely that the plaintiff’s neck symptoms will be aggravated in the future by some additional employment, I consider an ISV of 9 would be appropriate if the injury to the cervical spine were the only injury.  I do not consider an increase in the ISV to 10 would be sufficient to make allowance for the other injuries, in view of the significance of the shoulder injury.  A 25% uplift would produce an ISV of 12.5, but an ISV must be a whole number.  For all injuries I assess an ISV of 12, essentially on the basis that I do not think that an ISV of 11 is really sufficient, having regard to all the plaintiff’s symptoms, and because I think the shoulder injury if assessed separately would justify an ISV towards the top of the range of Item 88, which is up to 5,^[7] bearing in mind that the plaintiff has not made a full recovery from the shoulder injury.  Making due allowance for the effects of the overlap, an uplift of only 2 in the ISV would in my opinion be inadequate, so I find an ISV of 12.  That produces an assessment of general damages of $13,800.

Economic loss

19. [19]
    The plaintiff was not in employment at the time of the accident. She had been in employment when she was younger, but left work during her pregnancy with her first child, a daughter born in March 1993. There was also a son born in January 1999. At the time of the accident he was due to start in grade 1 at school the following January, and the plaintiff had planned to return to work on a part‑time basis thereafter, working hours which would permit her to take him to school and collect him after school.^[8]  She said that she expected that when he became older and able to cope with public transport she would be able to work full‑time.

20. [20]
    The plaintiff is in a long‑term de facto relationship with a man who has had a significant back injury (p 26) and Ross River Fever (p 28), and who has apparently been involved in a variety of income‑earning activities.  At one time he was operating a boat hire business, and the plaintiff assisted him by looking after the books, something she said took about two hours a week:  p 16.  More recently he has been working as an installer of blinds and curtains:  p 23.  He is paid by the customers, but his work is arranged through retail suppliers of blinds and curtains:  p 28.  The work mostly involves installing blinds, which are generally delivered to the customer before he turns up, though sometimes he is responsible for delivery as well as installation.  She has been assisting with bookkeeping with this business as well (p 23), but in the last couple of months she has also been assisting in the installation work:  p 24.  He will put in the brackets and hang the blinds or curtains, and she then adjusts them so that they operate to the appropriate length.  Sometimes this involves work above shoulder height, or involves lifting the full weight of a significant blind while she is making some adjustment, and she finds either of these stirs up her symptoms:  p 25.

21. [21]
    She is coping with her current work level of about 15 to 20 hours per week, but does not think she could cope with doing such work on a full‑time basis:  p 27.  She said that if she were not assisting her husband he would simply do the work himself and take longer to do it.  Her motivation for helping him in this way appears to be largely because with his back injury he was otherwise finding the work rather difficult himself.  She does not receive any specific remuneration for this from her husband (p 28), though no doubt it is to their mutual benefit that his business be successful.  She is also receiving through Centrelink a parenting allowance:  p 21.

22. [22]
    Since the accident the plaintiff has not made much effort to return to the paid workforce. She did on one occasion apply for one shop assistant job, but was not even interviewed: p 22-3.  She has taken a course arranged through Centrelink designed to assist people to enter the workforce, by providing advice on resumes and assistance on how to behave at interviews, but it appears that she has not yet done much to put this into practice:  p 21.  I suspect that at the moment she is not actively seeking work because she is assisting her partner in his business, but that is unlikely to be her position in the long term:  p 26.^[9]

23. [23]
    The plaintiff has never worked in a position involving bookkeeping or computer work, and apart from her inexperience there is the difficulty that some years ago she suffered a deep vein thrombosis in the leg, and has been advised that she should avoid sitting in one position for an extended period of time because of the risk of a recurrence of that condition. Because of that she would be wary anyway about taking on work of this nature unless she could do it in her own home (where she would be free to get up and move about as required in order to avoid causing problems with the leg), apart from any difficulties with the neck which would be produced from sitting in the one position for an extended period.^[10]

24. [24]
    The plaintiff was educated to year 10: p 12.  Her experience was essentially in retail work;^[11] she worked from 1987 for a number of years at a Target store, initially on a checkout and then within the store, assisting customers and distributing stock:  p 13‑14.  Some of the work involved in stocking the store was fairly heavy, and she did not think that she would be able to do that now without significantly aggravating her symptoms:  p 26.  She was also for a time working as a volunteer at a Red Cross store under a program associated with the course organised by Centrelink, but she found some of that work aggravated her symptoms as well:  p 22.

25. [25]
    It is not entirely clear that the plaintiff cannot or will not do retail work because of the injury that she suffered. This is essentially because she has never been in a position where she was seriously attempting to hold down employment after the accident. It does not appear that she has been making any particularly strenuous efforts to obtain employment since the accident, but no doubt in the absence of the injury suffered in the accident as the plaintiff’s children became older the plaintiff would have returned to the workforce. The plaintiff and her partner are not well off and the partner has health difficulties of his own. Unemployment rates are low at the present time, so it is likely that she would be able to find employment if she were not injured and she were seriously looking for it. If she had not been injured I expect she would have been working now rather than assisting her partner. The significance of the assistance is that she may not be currently fully exploiting her remaining earning capacity.

26. [26]
    I accept that more physically strenuous work, or work above shoulder height, would aggravate the plaintiff’s symptoms, and that as a result the plaintiff’s capacity to do such work has been impaired as a result of the accident, and the range of employment otherwise available to her has contracted.^[12]  I reject the opinion to the contrary of Dr Nutting.  When cross‑examined about this, I thought his answers were unsatisfactory and even to some extent evasive (p 36), and so far as I could tell his opinion was essentially that if she really wanted to work she could do it anyway even if it was producing some symptoms, which I do not regard as a realistic position.^[13]  The real difficulty is that, in circumstances where the plaintiff has not in fact been working since the accident, it is not possible to know for sure whether she could work, and to what extent, notwithstanding the injuries she has suffered.

27. [27]
    This makes it impossible to calculate any future economic loss, but on the whole I do think it likely that the plaintiff will work less in the future than would have been the case had she not suffered this accident. To some extent, that may be because she is tentative about doing work which will aggravate her symptoms, but I think it likely that she will have greater difficulty in obtaining employment with neck problems and, perhaps more significantly, greater difficulty in retaining employment; there is a risk that either she will find she is not able to cope, or that her employer will decide that she is not able to cope, and will put her off. She is currently only 36, so other things being equal she would probably have a potential working life of up to 30 years still ahead of her. I find she will suffer loss of earnings in the future.^[14]

28. [28]
    The State Retail Industry Award 2004, which is the current award, provides a gross rate per week for shop assistants on the lowest level of $562.80. There is a slightly lower starting rate for the lowest level of clerks under the same award. This suggests it is appropriate to use an annual figure for net income of about $25,000 per annum.

29. [29]
    In Ballesteros v Chidlow (supra) the plaintiff had left the employment that she had had because of her injuries but the evidence indicated she would be likely to return to employment.  The trial judge considered that the appellant might experience difficulty from time to time with her work due to neck pain, especially when sitting in one place for a time, and found that there was a real possibility the appellant would from time to time be unable to work because of intermittent pain due to the injury sustained in the accident.  She allowed $20,000 as a global amount to cover this:  [97].  On appeal,^[15] the Court of Appeal increased this to $40,000.

30. [30]
    McMurdo P said at [42]:

“The damages award arrived at by the primary judge was, however, in my view manifestly inadequate.  It did not sufficiently reflect the possibility, albeit fairly unlikely, that the pain clinic course may not be effective and that the plaintiff may have considerable periods over her remaining 28 year working life of future unemployment attributable to her accident related injuries.  Bearing in mind her previous earning capacity ($589 net per week) an award of $40,000 including future superannuation losses (roughly 15 months lost wages and superannuation entitlements with some discounting because of the present receipt of damages for future losses) better reflects the contingencies and more adequately compensates the appellant for the competing hypothetical changes relating to the effect of her accident related injuries on her future employment.”

31. [31]
    In that case, the Court of Appeal increased the amount notwithstanding that it did not interfere with a finding that the plaintiff had excellent prospects of obtaining and keeping full‑time work in the future despite her accident‑related injuries:  [39].  Essentially, the additional future economic loss was awarded to cover the risk, described as “fairly unlikely”, that this outcome would not be achieved.

32. [32]
    I think the present plaintiff’s risk of an adverse outcome is somewhat greater, although at the present time it is impossible to assess that with any precision. Dr Pentis thought she had a permanent incapacity, and should stay away from strenuous aggravating activities in employment.  I accept that, and one would expect that that state of affairs would be likely to lead to some real loss over a potential earning capacity of 30 years.  This may be reflected in various ways; the plaintiff may be confined in a practical sense to part‑time rather than full‑time work, or it may be that there will be just greater periods of unemployment than would otherwise have been the case.  The plaintiff was going to have some difficulty in getting suitable employment anyway because she had been away from work for a long time, she had only limited experience in car detailing and retail work, and she had the restriction in relation to work which involved her sitting in the one place for an extended period of time anyway because of her condition of her leg.  Accordingly, but for the plaintiff’s injuries, her future work was likely to be more physical, probably retail work.

33. [33]
    There are a number of cases where global awards for future economic loss to accommodate essentially the risk of future interference in employment because of continuing neck and back pain have been made in the order of $40,000 to $60,000: Whitney v Whiteway and Anor [2006] QDC 163 ($60,00); Rosewarne v Marshall and Anor [2004] QSC 283 ($60,000); Cooper v Nguyen (supra) ($50,000); Raffault v Gillard [2006] QDC 403 ($50,000); Carroll v Coomber and Anor [2006] QDC 146 ($40,000);^[16] Crowther v Caesar^[17] ($40,000); Walker v Durham [2003] QDC 21 ($40,000); Martin v Brown [2005] QDC 381 ($40,000); and of course the decision of the Court of Appeal in Ballesteros (supra).

34. [34]
    In Taylor v Anderson [2004] QSC 106 the plaintiff suffered a whiplash injury in a motor vehicle accident when she was almost 44 and in full‑time employment at a TAFE.  The plaintiff continued in employment but took off three weeks and attended a pain management course, but still had difficulties working and ultimately ceased work about three years after the accident.  In that case, $85,000 for loss of future earning capacity was allowed, but essentially on the basis of a loss of $200 per week for 10 years plus some loss of the chance of earning higher income in other employment.  That was plainly a worse case than the present in terms of economic loss.  In Venables v Gould [2001] QDC 320 the plaintiff suffered a whiplash injury in a motor vehicle accident when she was 28 which led to chronic symptoms.  Damages for economic loss were assessed on the basis that the plaintiff’s career would have been advanced in a particular way but for the injury suffered in the accident, and she was now worse off because there was less opportunity to obtain better work and advancement because of an interference in her ability to work efficiently or to pursue further studies which would lead to further promotion, for which $20,000 was allowed, apart from the loss of the specific promotion for which $55,000 was allowed, a total of $75,000.  Again, that was a case where it was possible essentially to calculate the future economic loss for a plaintiff who had continued in employment after the accident.

35. [35]
    In the present case, there is some uncertainty as to the plaintiff’s employment had the accident not occurred, but I think it likely that she would have returned at least to part‑time employment for most of the rest of her working life; that she said was her intention, and is a common enough experience these days.  The plaintiff and her partner are in quite modest financial circumstances (p 18), so there was and is some economic incentive for her to obtain employment.  I think that her capacity to obtain and perhaps more particularly to hold employment has been reduced as a result of the injury, and that will probably mean that in the future the plaintiff will not be doing as much work as she otherwise would have been doing.  That I suspect will probably mean more part‑time rather than full‑time work, and probably some additional periods of unemployment, but on the whole I think that giving her the equivalent of about two full years loss of earnings is a realistic and fair approach to the assessment of future economic loss.  I will allow the amount of $50,000.  Because this is not a calculated amount and is based on a relatively modest period of additional unemployment, I will not reduce it further because of contingencies or for the present receipt of future losses.  It has become commonplace, however, to allow an additional 9% for loss of future superannuation entitlements, and I will allow a further $4,500 on this basis.

36. [36]
    Past special damages were agreed at $1,855.22, as was the interest rate of 2.95%: p 8‑9.  There was no evidence as to how this was made up, so I can only allow interest on the full amount.  It was submitted that I should make allowance for future special damages of $1,000 for physiotherapy, on the basis that Dr Nutting suggested that physiotherapy would be of assistance to the plaintiff.  Apart from the fact that I have preferred the evidence of Dr Pentis, the plaintiff did not seem to regard the physiotherapy she had had in the past as helpful, and there was no evidence from her that she would be willing to or indeed interested in undertaking future physiotherapy.  In the circumstances, I am not prepared to make any allowance on this basis.

Summary

37. [37]
    Accordingly, damages were assessed as follows:

38. [38]
    There will therefore be judgment that the second defendant pay the plaintiff $70,297.22. When the reasons are delivered I will invite submissions as to costs, but unless another order is appropriate, the second defendant should pay the plaintiff’s costs of and incidental to the action to be assessed.