Kawecki v Tobin[2007] QDC 321

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 16 May 2004, the plaintiff was sitting in her stationary Hyundai sedan waiting to turn off Kingston Road into Station Road, Loganlea when her vehicle was struck from behind by a Nissan Pintara sedan driven by the first defendant.  The second defendant is the licensed insurer.  The force of the collision was such as to collapse the seat in which the plaintiff was sitting.  It also forced her car across several lanes of traffic.  The damage to the Hyundai sedan and the seat  is shown in the photographs.^[1]  Liability is admitted.

2. [2]
   As a result of the collision, it is alleged that the plaintiff suffered personal injuries including injuries to her neck and back, right hand, wrist and forearm and an adjustment disorder with mixed anxiety and depressed mood. At the time of the collision, the plaintiff was on her way to a job as a carer. She was also studying to become an enrolled nurse in order to improve her career prospects. Despite her injuries, she continued to study but with some failures due, she says, to problems with her injuries. She has managed to maintain steady employment since the accident.

Issues

3. [3]
   The main issues in the case seem to be the cost of massage for her ongoing pain and economic loss. The latter relates to the claim that she can no longer work longer hours due to her neck and back problems which are related to the need to be on her feet during her shift as an enrolled nurse. It is not the plaintiff’s case that she has to do heavy lifting of patients but that even as a supervising nurse, being on her feet and attending to those duties of preparing medication, moving around the wards to check on those under her care and noting up files aggravate her ongoing injuries. The second defendant’s case is that she had pre-existing problems with her feet and other health problems which would have prevented her from working the longer shifts in any event. Also, she had some conflicts in the work place and which caused her to change jobs.

Background evidence

4. [4]
   The plaintiff is of Polish ancestry. She was born on 6 November 1947. Her parents came to Australia after the Second World War.  Her mother died earlier this year.  Her father, who is in his early eighties lives across the road from the plaintiff.  Her parents had lived in the area for some 17 years after the plaintiff moved to Queensland following her marriage break up in 1990.  She had the care of her two children and worked to support them.  It is clear from the plaintiff’s working history that she has worked most of her life and is an industrious person.  She had been trained to do computer work on a Job Pack Program which then became outdated.  Centrelink encouraged her to do a Trainee Certificate Level II in nursing.  She upgraded to Certificate III.  Whilst studying she continued to do work which involved lifting and bathing clients and dressing them.  Although it was heavy work, the plaintiff was able to carry it out.  She hurt her knee on one occasion and from time to time she got a sore back but it did not prevent her from doing that work.  Once she qualified as an enrolled nurse, her duties were lighter.  The plaintiff presented as a stoic, hard working and honest witness.  She was not afraid to make concessions when necessary.  For example, when she got into some trouble at work after being directed by a physiotherapist to take a urine sample, she said that she was inexperienced and now knows better.  Also, she did not complain of her symptoms when she saw her general practitioner, as she said she was on analgesics and she had other medical issues to deal with from time to time.  She did not fill in an application form  correctly.^[2]   She applied to Angel City for a position as an enrolled nurse.  In answer to the question ‘Have you ever injured yourself at work?’ she answered ‘no’.  She had injured her knee but as she explained it was no longer a problem.  It did not affect her in that position nor is it relevant now except to the extent that the defence challenge her credit.  It is of no consequence given her eagerness to get better employment.  The plaintiff was also challenged about the 80 hours per fortnight as set out in her Statement of Loss and Damage.  The plaintiff had in fact worked 80 hours or more since September 2005 but not regularly.^[3]   She was capable of those hours but not every week.  Her evidence was that she cannot sustain those hours and needs massage to cope with those longer hours.  This was advised by Dr. Todman.^[4]  The reference to 80 hours should be seen in that context.

Medical evidence

5. [5]
   After the accident, the plaintiff had ongoing pain and suffering. When she was discharged from hospital, the plaintiff had no medication. She could not sleep the first night due to the discomfort. The plaintiff attended at the Beenleigh Village Family Medical Practice^[5] on 17 May 2004.  She complained of back pain, head and right shoulder pain and the laceration to her head which had been sutured at the hospital on the day of the accident. She later attended at her general practitioner on 20 May 2004 complaining of a swollen right wrist and hand.  Subsequent visits seem to be related to those areas or other unrelated problems and no mention was made of her neck or back.  In March 2006,^[6] she complained of chronic back pain.  By this time, she had seen Dr. David White, an orthopaedic surgeon.  She told him that the day after the accident that she was sore all over and he examined her neck and wrist.  He confirmed that she would have suffered a flexion/extension injury to her cervical spine and soft tissue injuries to her right shoulder, lower back in that type of accident.  He expressed the view that she would not be fit for work which involved prolonged standing or maintaining the head or neck in a fixed position for extended periods. 

6. [6]
   Notwithstanding there are no notes of the plaintiff complaining to her general practitioner about her neck and back symptoms in the period after the accident, the nature of the accident is consistent with those symptoms. It was not until 1 March 2006 that she complained of her back pain again. Her immediate concern with her hand and wrist may have led her not to concentrate on the other parts of her body which have continued to concern her. Dr. Todman, a neurologist, confirms that the mechanism of the injury has resulted in a whiplash injury to the spine. After having a MRI carried out, he assessed an 8 percent impairment of the whole person related to the cervical spine. He noted muscular spasm and restricted movements as well as radicular complaints related to the radiation of symptoms to the upper arm as relevant.^[7]  He assessed impairment to the lumbar spine at 6%, noting muscular spasm and restricted movements. He expressed the view that the symptoms would continue to affect the plaintiff in her day to day activities and employment.  I accept her evidence that the symptoms have continued to date.  These symptoms have the affect that she cannot perform all of her household tasks.  It would also limit her ability to work longer shifts.  The extent to which she is limited is also related to problems with her plantar fasciitis in her foot and other health issues which will be discussed.  The evidence of Mr Hoey, occupational therapist was of little assistance as he assumed that she was still a personal carer and so incapable of doing heavy work. However, his testing of the plaintiff does confirm that for specific tasks, she is restricted.  For example, doing household tasks such as vacuuming, cleaning the bathroom and gardening.^[8]

7. [7]
   Dr David Morgan in his examination on 6 April 2005 opined that the plaintiff “probably sustained a flexion/extension acceleration injury of the cervical segment of the vertebral column giving rise to a strain of the musculo-ligamentous supporting structure.” He believed that it would gradually heal. He observed that the plaintiff had shown a near full range of movement and only exhibited minor restrictions in the movement of the cervical spine. The X rays and MRI showed some age related degenerative disease which might explain the restrictions in her movement. He accepted that some part of her circumstances were probably related to the accident but that it would improve. In relation to the right shoulder, wrist and hand and right hip region, those symptoms had settled or no abnormality could be found. He assessed the plaintiff as having a 1% loss of bodily function referrable to the cervical spine and a 1% loss of normal right upper limb function related to the right wrist injury. Given that prior to the accident that the plaintiff did not suffer any ongoing symptoms particularly to her back and neck, it is fair to say that the findings of Dr David White and Dr Todman provide a more realistic assessment of her ongoing restriction as it is affects her ability to carry out her duties. Dr Reid accepted in evidence that the type of accident could aggravate or accelerate degenerative change but in this case the symptoms would be gone after some time. She did not accept that whiplash type ligamentous injuries were permanent. Dr David Morgan accepted in cross examination that in relation to whiplash soft tissue injuries that there are a certain percentage of persons who do not make a good recovery. Having listened to the plaintiff’s evidence, I am satisfied that she falls into that latter category. The complication in the present case is the foot problem from which the plaintiff suffers and which affects the manner she walks and aggravates her back problem. Also, Dr Reid opined that the obesity of the plaintiff and her menopausal problems have contributed to her symptoms. Of course, these attributes existed at the time of the accident. She was able to work in spite of them.

8. [8]
   Dr Goode could find no objective abnormal clinical findings in respect of the plaintiff’s cervical spine. He noted a full range of movement. He found no muscle spasm or guarding or upper limb radiculopathy. This seems to conflict with Dr Todman but Dr Goode’s evidence seems consistent with Dr David Morgan and Dr Reid. Dr Goode could not find any impairment of the right wrist, right ankle or shoulder. Those findings have to be considered in light of the plaintiff’s evidence that the symptoms from the accident have restricted her as she carries out her duties. She was for present purposes, asymptomatic before the accident except for occasional back pain which could be expected given the heavy duties she was carrying out as a carer.

Other health issues

9. [9]
   In cross examination, the plaintiff was questioned about her other health problems. These included a history since 1998 of sinus problems, menopause symptoms and anxiety, high blood pressure, a strained knee and back problems from over exertion, chest pain, plantar fasciitis and concerns about hepatitis. None of these problems prevented the plaintiff from working in a full time capacity and carrying out the heavy duties as a nurse carer. The plantar fasciitis seemed to respond to cortisone injections and correct footwear but it is a factor in her ongoing back problems according to the plaintiff. The plaintiff took and continues to take analgesics to allow her to cope. Her present employment is less demanding than being a carer. She does assist if a hoist is being used to ensure the safety of the patient. When she saw the psychologist Mr Morgan in May 2005, she was complaining of the ongoing problems to her right shoulder and wrist, back and neck and right ankle. He diagnosed her with an adjustment disorder, with mixed anxiety and depressed mood.^[9]  There are no ongoing symptoms related to that disorder which can be related to the accident.  In effect, she has recovered from that condition.

General damages for pain and suffering and loss of amenities

10. [10]
    The submissions for the plaintiff claim an ISV under the Civil Liability Act 2003 (Qld) (“CLA”) of 15.  This is based on a preliminary ISV of 10 under Item 88 of the Regulations to the CLA plus an uplift of 50% given the multiple injuries.  Item 88 relates to a moderate cervical spine injury of a soft tissue nature.  Other injuries include a laceration to the head^[10], a minor mental disorder^[11], a moderate lumbar spine injury^[12] a minor shoulder injury^[13], a minor wrist injury^[14], and a minor ankle injury.^[15] 

11. [11]
    On the other hand, the defence submit that an ISV of 10 is appropriate as there is a dispute on the medical evidence which if one accepted the defence medical witnesses an ISV of 4 would be justified. However, in recognition of the conflict, an ISV of 10 is conceded. As has been accepted in this case, the evidence of Dr Todman and Dr David White is accepted based on the credible testimony of the plaintiff of her ongoing symptoms as they relate to her work. Therefore, one starts with an ISV in the range of 5-10. In the present case, an ISV of 8 is acceptable. This gives some recognition that other factors have contributed to her malaise. Allowing an uplift of 50% to reflect the multiple injuries, an ISV of 12 is established. The sum of $13,800.00 is allowed under s 62(c) of CLA. No interest is allowed.^[16]

Pre-trial economic loss

12. [12]
    In some ways the discussion of pre-trial loss will impact on the future economic loss assessment. The plaintiff contends that there are three components to this award for pre-trial loss.^[17]  The first period relates to when the plaintiff was off work post accident.   This produces a loss of $1,520.76.^[18]  The next period relates to the delay in receiving a higher wage as an enrolled nurse.  Following the accident, the plaintiff was not able to obtain her qualification as quickly because of her inability to study.  She received counselling during that period and I am satisfied that she was delayed for a period of some six months. The claim relates to the difference between that of an assistant nurse and that of an enrolled nurse.  It is submitted that in the period ending 30 June 2005, her net earnings were $23,899.00.  In the year ending 30 June 2006 after she was qualified her net earnings were $38,960.00.  The difference is $15,061.00.  however, it is accepted by the plaintiff that an allowance for this component should be say $10,000.00 to take into account any exigencies. 

13. [13]
    On that aspect, it is submitted by the defence^[19] that the net weekly earnings over the three years ending 30 June 2004 was $467.00.  The plaintiff worked at Carindale Court and Carindale Brook from 5 September 2005 to 28 May 2006. The average net weekly earnings was $697.00.  The difference between her carer earnings and as an enrolled nurse was $230.00 per week or $5,982.00 over 26 weeks or 6 months.  I am inclined to accept the plaintiff’s figure of $10,000.00 in this respect.  An average over three years as suggested by the defence fails to take into account the most recent hourly rate and the hours which the plaintiff was willing to work in the financial year ending 30 June 2005.  By discounting the figure of $15,000.00 to $10,000.00, the plaintiff has adequately considered the exigencies such as periods of unemployment or varying hours available. It is accepted that superannuation of $900.00 and interest at the rate of 2.98% per annum over 2.9 years is allowable. That produces a figure of $864.20.

14. [14]
    The third category of loss relates to the period from the date of the accident to trial. It is a claim for reduced capacity to work as an enrolled nurse because of the injuries. In this respect, it is the neck and back pains which seem to require the massage to allow the plaintiff to cope. The claim is based upon a comparison between what hours the plaintiff was working at Carindale Brook and Carindale Court and her present working hours of 40-60 hours.  A comparison was made between her earnings over 34 weeks between 5 September 2005 to 30 April 2006 of $24,597.00^[20] being an average of $723.46 net per week.  For the period from 21 May 2006 and 21 November 2007 viz 81 weeks this should compute to $58,600.26.  However, she earned some $47,702.45.  A claim is made of $10,897.81. 

15. [15]
    The defence say that from the period of 5 September 2005 to 5 March 2006 the average was 73 hours per fortnight. The plaintiff has claimed that from March 2006, she reduced her working hours by reason of the injuries suffered in the accident. However, the defence contends that there were other factors including problems in the workplace. When confronted with these problems, the plaintiff told Ms Parker that she was suffering pain as a result of a pinched nerve in her foot which caused pain to radiate to her groin. That the defence says is one reason for discounting her loss during that period. Other reasons for discounting the figure is:

1. Ongoing menopausal symptoms.

2. Lack of proof that ongoing symptoms were related to her accident.

3. Problems at work

4. The reduction of hours was about 10 hours per fortnight after the beginning of March 2006 in comparison with the September to March 2006 period  and that must be considered in light of the above difficulties.

5. That there was little reduction in hours from 12 June 2006 to 20 August 2006.

16. [16]
    In relation to the latter point, an analysis of Exhibit 6 shows a significant difference in the hours from 12 June 2006 to 6 January 2007. Even if one includes the work done for Angel City for the period from 11 November 2006 to the fortnight commencing 30 December 2006 with the work done at Carindale Brook, the difference is around 14 hours per fortnight.  This would equate to $319.00 per fortnight or $159.50 per week using an hourly rate of $22.75. The defence contend that the problems that the plaintiff was having with clients suffering dementia at Carindale Brook was reflected in her shorter hours.   Also, during that time she was merely filling in for the hours which Joy Darby was down to work on paper.  Certainly during the fortnight beginning on 3 September 2006, and the month commencing 15 October, that point has some validity.^[21]  Also, when the plaintiff commenced work with Angel City from November 2006 there was a reduction in her working hours.  The plaintiff worked with the agency as it suited her own requirements from January 2007 after her mother died.  She would attend to her father’s needs, usually in the morning.

17. [17]
    After the plaintiff commenced work at the Trinder Park Rest Home, her average number of hours per fortnight was 54. It was submitted by the defence that the reasons for that were multi-factorial. The plantar fasciitis was one reason for the plaintiff having a foot problem, but with treatment and proper shoes, I find that this was of minimal long term affect on her ability to work. If one accepts that a 25% discount should be made to take into account the other factors, then the plaintiff’s claim should be reduced to say $8,000.00 for this third category. The defence have conceded a figure of $3,900.00. The arguments of the defence overlook the fact that notwithstanding the multi-factorial aspect of the plaintiff’s medical condition, she was able to work most satisfactorily as a carer which involved heavier work before the accident. In recognition of those other factors apart from her ongoing neck and back and ankle problems, the claim is reduced by 25%. Superannuation lost on this is $720.00. Interest of $370.00 is allowed.

Future Economic Loss

18. [18]
    The plaintiff’s claim is that she is losing 15 hours per week. That assumes that she would have worked 80 hours per fortnight compared to her present hours of an average of 50 hours per week. The figure of 80 hours is not acceptable absent a comparative employee who can show that she is able to work those hours under the present employer on a consistent basis. Her pre trial loss of $8,000.00 plus is referable to the last 81 weeks up to trial and averages out at around $100.00 per week. This could be interpreted as a weekly loss of around five hours per week. When one looks at the gross earnings for the year ended 30 June 2004, a figure of $30,160.00 is ascertained.^[22]  It would be fair to assume that the hourly rate was no more than $20.00 per week for the period ending 30 June 2004.  Therefore, the average number of hours worked by the plaintiff for that period would be around 30 hours per week.^[23]  Therefore in comparison to the plaintiff’s present average of say 50 hours, there is a difference of 5 hours per week or $114.00 or $22.75 per hour. $22.75 seems to be the net average hourly rate.^[24]  Of course, that methodology is just another way of calculating a weekly loss.  It overlooks the fact that the present position as an enrolled nurse has lighter duties than those carried out in 2004.  The parties approached the matter somewhat differently. 

19. [19]
    When one compares the hours worked for the year ended 30 June 2004, it is difficult for the plaintiff to say that she intends to work 80 hours each fortnight. In fact, even in her less demanding job, the average as pointed out by the defence is 63 hours per fortnight on average after March 2006 and other factors were at work. Consistently with the defence submission, a loss of ten hours per week is more realistic at least in the immediate future.^[25]  In fact the defence calculated the weekly loss at $200.00 per week.  That figure overlooks the last pay slip and the average calculated by the plaintiff at $22.75.  That figure is consistent with the earlier pay slips.^[26]  The defence would seek to reduce that figure calculated at $46,300.00 to take into account other factors.  However, to do that overlooks the fact that her present employment is much easier than when she worked 60 hours per fortnight or 30 hours per seek in 2003-2004.  A starting point would be a loss of 10 hours per week.  That figure reflects for the erratic nature of the hours worked pre accident.  There has to be further allowance for the other factors which have and may affect the plaintiff’s ability to work and which are not related.  In fact, as time goes on the other factors referred to are likely to play a larger role.  Degenerative changes will continue to occur, the plantar fasciitis will continue to cause problems from time to time and in the ordinary course of events, the plaintiff may not want to work the longer hours.  She already has grandchildren.  This would reflect on the hours she works and how long she continues to work.

20. [20]
    The plaintiff seeks $341.00 per week for two years and then a total loss for the following five and a half years at $910.00 per week discounted to $145,000.00 As discussed, 80 hours per fortnight cannot be sustained. The 10 hours per week is further reduced by 25% to allow for the other factors unrelated to the accident. Therefore, the weekly loss is $22.75 by 8 hours or $182.00 per week.

21. [21]
    The plaintiff gave evidence that she believed that she could only endure another two years work given her present problems. She was a stoic and strong personality. She is only coping with massage and analgesics. It seems reasonable that she be given for the next two years a weekly sum of $182.00. That would amount to $18,064.00 using the 5% tables. Thereafter, the assessment becomes more problematical. The defence have allowed future economic loss over the next five years at $200.00 per week. The real difference now is whether the plaintiff should be allowed a total loss after two years. If one multiplies the hourly loss of $22.75 by 33 hours per week, she would earn $751.00 per week. That is, the extra eight hours is added to her present 25 hours per week. The plaintiff did indicate that she would work until the usual 65 years retirement age. That age gives recognition to the fact that others in similar jobs work longer but one takes into account the usual viccisitudes. In two years time, the sum of $751.00 per week for three years produces a figure of $99,893.00. It cannot be said that the symptoms related to the accident would be the sole reason for her retirement. As discussed, other factors would assume a more significant role in her ability to cope with work. Her obesity and high blood pressure together with degenerative changes would loom larger. It is proposed, therefore, to reduce that figure of $99,893.00 by a further 25% to produce a figure of $74,920.00. The total for future economic loss is $92,984.00. The number of hours had already been reduced by 25% from 10 to 8 to reflect the current contribution of the non-accident factors. Superannuation payable on that sum is $8396.00.

Future paid care

22. [22]
    The plaintiff gave evidence that one of her friends assists her to do the more difficult tasks around the house for a couple of hours per month. That need is supported by the reports of Mr Hoey and Dr Todman. It includes mowing the lawn and heavier household tasks. The plaintiff claims half an hour a week. This would amount to a weekly cost of $9.00 per week. Over ten years, the future cost would be $3,737.65. The plaintiff has accepted a discount of 15%, probably for the symptoms related to other problems not related to the accident. The defence have argued that the plaintiff is not entitled to same as there has been no compliance with s 59(1)(c) of the CLA. The plaintiff’s counsel refers to the decision of his honour Judge McGill in Carroll v Coomber and Anor^[27].  Carroll’s case was one where the plaintiff had met the double threshold to which his honour referred.  At no stage did the present plaintiff do so.  However, s 59 relates only to gratuitous care.  His honour pointed out that sometime in the future gratuitous care would not be available to the plaintiff in that case and that s 59 would not then apply. That would be the situation here as the plaintiff’s father and her friend will not be around forever. Therefore, I propose to allow the sum of $3,177.00 under this head.

Special Damages

23. [23]
    Exhibit 1 is the list of special damages. The only amount really disputed is the claim of $1,680.00 for massage treatment. The treatment was recommended by the plaintiff’s doctor. The plaintiff says it allows her to cope with her employment. It seems to be more than reasonable for her to so claim. Without that, she may not be able to work as long each day. The defendant cannot have it both ways. The other item of $1530.00 being the Workcover refund has been allowed as part of the pre trial economic loss. Therefore, the sum allowed for special damages is $3,990.00. The plaintiff claims interest on the sum of $2,627.00 at 2.98% for 3.5 years. This results in a figure of $274.00.

Future medication

24. [24]
    The plaintiff presently spends about $20.00 per month on medication. She gave evidence of the need for analgesics. The written submissions^[28] refer to a current life expectancy of some 25 years.  This would compute at $5.00 per week using the 5% tables to $3,770.00.  Discounted by 15% to allow for other non-accident symptoms it amounts to some $3,200.00.

Future massage expenses

25. [25]
    What was clear from the earlier discussion is the need for the plaintiff to have massage in order to cope with her employment. That will continue for another two years at least. The cost is $60.00 per fortnight or $30.00 per week. This will produce a figure of $2,970.00 using the 5% tables.

Summary of Quantum

Orders

3. It is ordered that the second defendant do pay to the plaintiff the sum of $151,165.00.

4. It is further ordered that the second defendant do pay to the plaintiff the costs, on an indemnity basis, of and incidental to the action to be assessed.