Mimiague v Bornhutter[2010] QDC 224

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff seeks damages for personal injuries suffered in a motor vehicle accident on 25 October 2005.

2. [2]
   Both liability and the quantum of damages are in issue.

Circumstances of the accident

3. [3]
   On the night of 25 October 2005 the plaintiff was driving a Mazda Bravo utility in a southerly direction along Creek Road Mansfield.  His wife, Luz Mary Mimiague was a passenger in the vehicle.

4. [4]
   The first defendant was driving a Hyundai Lantra stationwagon in a northerly direction along Creek Road.  He was intending to turn right into Pine Mountain Road.

5. [5]
   At about 7.15 pm the vehicles collided at the intersection of Creek and Pine Mountain Roads when the first defendant executed a right turn into Pine Mountain Road.

6. [6]
   The plaintiff contends that he faced a green traffic signal when he entered the intersection and the collision was therefore caused by the negligence of the first defendant.

7. [7]
   The first defendant contends that he faced a green right turn arrow permitting him to execute the right turn into Pine Mountain Road.  If that is so, the plaintiff must have faced a red traffic light.

The main issues

8. [8]
   With respect to liability the principal issue is whether the plaintiff has established on the balance of probabilities that he faced a green traffic light when he entered the intersection. If that is so it follows from the evidence of the Brisbane City Council as to the operation of the traffic lights that the first defendant either faced a red traffic arrow or a green traffic light for northbound traffic on Creek Road, but no right turn arrow at all.  The plaintiff does not contend that the first defendant faced a red right turn arrow.  Rather it is contended that the first defendant faced a green light for northbound traffic and no right turn signal at all.  In the circumstances it is contended that the first defendant was required to give way to the plaintiff’s vehicle by reason of s 62(1)(c) Transport Operations (Road Use Management – Road Rules) Regulation 2009.  The defendants assert that if the collision occurred in this manner there should be a finding of substantial contributory negligence against the plaintiff.

9. [9]
   The main issues with respect to the assessment of damages concern the extent of the plaintiff’s injuries, particularly the effect of earlier injuries suffered by him in a motor vehicle accident on 2 September 1998, and the impact of his injuries on his earning capacity.

Versions of the witnesses to the accident

10. [10]
    The plaintiff was travelling home from work at the Port of Brisbane.  He was travelling in the left lane of the southbound lanes on Creek Road. He said that he was about 100 metres from the intersection with Pine Mountain Road when he observed the traffic light change to green. He accelerated to the “allowed speed”,^[1] which was 70 kilometres per hour. As he drove towards the intersection he was travelling at about 70 kilometres per hour.^[2] He estimated that as he entered the intersection he was travelling a little slower, perhaps 65 to 68 kilometres per hour.^[3] At the intersection another vehicle turned in front of him and he collided with it. He said that he endeavoured to brake and to see if there was any manoeuvre that he could do to avoid the collision, but he was unable to do so.^[4] He said that the lights were “completely green” when he entered the intersection.^[5]

11. [11]
    The plaintiff’s wife, Luz Mary Mimiague was a passenger in the car. She said that as they approached the intersection she observed a vehicle that appeared to be doing a u-turn. She said that the vehicle started, then stopped, and then started again. She tried to caution the plaintiff but it was too late.^[6] Mrs Mimiague said that when the plaintiff entered the intersection the traffic light was green. She first observed the green traffic light when the vehicle was not that far from the intersection.^[7] In cross-examination Mrs Mimiague said that she was looking at the traffic lights because she is a nervous passenger and normally does so.^[8]

12. [12]
    The plaintiff called Jason Paul Conis. He was travelling from his business at Murarrie to his home at Mount Gravatt. He was driving south on Creek Road. He was crossing a small bridge across a creek 200 metres from the intersection with Pine Mountain Road when his “attention was drawn to the accident”.^[9] Mr Conis continued driving along Creek Road and proceeded through the intersection with Pine Mountain Road. He said that the traffic light was amber when he proceeded through the intersection.

13. [13]
    Mr Conis was asked whether he noticed the colour the traffic lights were displaying at the time his attention was drawn to the collision. He answered, “Look, being five years ago I do – I – I believe I remembered it being green, yes, but in saying that I know that I drove through a late amber light so it had to be green at that time”.^[10] In cross-examination by Mr Feely Mr Conis seemed to accept that he had not previously said in any statement made by him that he recalled that the traffic light was green at the time of the collision.^[11] He said “I sort of vaguely remember the light was green, but, you know, now it’s hard to tell the difference between what’s my inference and what actually happened, so …”.^[12]

14. [14]
    Mr Conis maintained that he was on the small bridge at the time he observed the collision. He estimated that the bridge was 200 metres from the intersection. In order to check his estimate he went back and measured the distance to see how close he was.^[13]

15. [15]
    The first defendant was visited at work by a friend, Erwin Giroul on the evening of 25 October 2005. At about 7.00 pm they both left travelling in their own vehicles. They were travelling in the same direction. Mr Giroul was driving his vehicle in front of the first defendant.^[14] As he approached the intersection of Creek and Pine Mountain Roads the first defendant said he observed that the traffic lights were green for traffic proceeding north on Creek Road and a green arrow for traffic turning right into Pine Mountain Road.^[15] He then observed a vehicle coming towards him in a manner that he felt indicated that it was travelling too fast to stop. He said that he came to a “virtual halt” thinking that the other vehicle could go around him.^[16] He said that the other vehicle did not appear to slow down and he did not hear the sound of braking.^[17]

16. [16]
    The first defendant’s statement taken by a loss assessor on 1 March 2006 was tendered without objection.^[18] In that statement the first defendant says:

“As I approached the turn I had a green light with a green arrow and I do not remember seeing any other colours of the traffic lights as I approached. I do not remember how fast I was going but I was gradually decreasing my speed to make the turn in a normal manner. I wasn’t in a hurry to go anywhere as I was just going home.”^[19]

17. [17]
    The first defendant’s friend, Erwin Giroul said that he was driving home after visiting the first defendant at work. He was driving a tan coloured Mercedes motor vehicle. He believed that the traffic lights at the intersection of Creek and Pine Mountain Roads were red. He said there was another vehicle in front of his vehicle. He said that the lights changed to green and he followed the traffic on the green arrow turning right into Pine Mountain Road.^[20] He said that he had travelled 20 to 40 metres along Pine Mountain Road when he heard a “bang”. He looked in his rear view mirror and saw that the first defendant’s vehicle had been hit by another car.^[21]

18. [18]
    In cross-examination by Mr Murphy for the plaintiff, Mr Giroul gave the following evidence:

“Do you recall how long you waited for? --  Just a normal traffic light time. I don’t know a minute, half a minute I’m not sure.

And then your recollection is the lights changed so that you had a green light and a green arrow? --  Yeah.

The car in front of you --- ? --  I didn’t – I didn’t notice the lanes going straight what colour it was for them, but I presume it was a green arrow – green light for them as well because there was definitely a green arrow for turning.

It was definitely a green arrow for turning but you can’t recall what the light was? --  No I didn’t take notice of that.

All right - - ? --  I mean I was just really following the traffic.

All right. So were you paying attention to the lights or were you just following the traffic? --  I’m pretty sure it was green.

You’re pretty sure it was green? --  Well for the – on the arrow, yeah.”^[22]

19. [19]
    In his statement made to a loss assessor on 2 March 2006^[23] Mr Giroul said:

“8. I was driving north in Creek Road and I think I stopped at the traffic lights at the intersection of Pine Mountain and Creek Road as they were red. I think there was another car in front of me but Sean (the first defendant) was directly behind me in his Hyundai.

9. The lights turned green with a green arrow and I commenced to turn right into Pine Mountain Creek Road and I didn’t notice any cars approaching me but I think there were cars stopped in both the turning lanes that were facing me. I am not sure if there was one stopped in one of the through lanes. I wasn’t watching Sean at this the time I was turning.

10. I then went through the intersection and I was about 20 metres along Pine Mountain Road when I heard a crash and I looked in my rear vision mirror and I saw that a white ute had hit the Hyundai that Sean was driving as he was turning on the left hand front of Sean’s car.  I had not seen the ute before that and it was obvious that ute had come through the lights from Creek Road in a southerly direction.”

The operation of the traffic lights

20. [20]
    The evidence as to the operation of the traffic lights at the intersection was tendered by agreement. The document titled “Signal Timing Sequence – Creek Road and Pine Mountain Road, Mount Gravatt”^[24] shows that during phase A southbound traffic on Creek Road has a green traffic light for a guaranteed minimum of 12 seconds. During that phase northbound traffic on Creek Road also has a green light. And at that stage traffic turning right from Creek Road into Pine Mountain Road has a red arrow for six seconds, which then goes off. During phase B traffic turning right into Pine Mountain Road has a green arrow for a minimum of six seconds. During that phase northbound traffic on Creek Road has a green light and southbound traffic has a red light.

21. [21]
    The Signal Timing Sequence table^[25] is explained in detail in a memorandum of a conference held with John Ness, Senior Traffic Signals Officer at the Brisbane City Council.^[26] He explained that the sequencing is a guaranteed minimum. The actual length of time of any one phase depends on vehicle presence. For instance, he stated that phase A could run for an unlimited period of time in appropriate circumstances. In the absence of any other vehicle demand the cycle will rest in phase A. Moreover he stated that at the relevant time a vehicle travelling southbound on Creek Road would face a green light for a minimum of 12 seconds. This meant that if the lights changed to amber prior to a vehicle entering the intersection then 12 seconds before that the southbound traffic on Creek Road would have had a green light. He states that when the southbound traffic on Creek Road has a green light the northbound right turning lane from Creek Road into Pine Mountain Road would not have a green arrow. Also when the southbound traffic on Creek Road has an amber light (which is for a period of five seconds), the northbound right turning lane from Creek Road into Pine Mountain Road would not have a green arrow. He also stated that after the amber light there is a two second all red period in which the right turning lane from Creek Road into Pine Mountain Road would not have a green arrow.

Assessment of the evidence

22. [22]
    Mr Murphy for the plaintiff points out that Mr Conis is the only independent witness and he therefore places considerable reliance on his evidence. Mr Feely for the defendants accepts that Mr Conis is an independent witness but submits that he is unreliable.

23. [23]
    Mr Murphy did not place reliance on Mr Conis’ rather vague evidence that he observed a green traffic light for southbound traffic on Creek Road at the time of the collision. Rather it was submitted by Mr Murphy that acceptance of his evidence led to the irresistible inference that the plaintiff faced a green traffic light when he entered the intersection. That is because Mr Conis entered the intersection on a “late amber” traffic light having driven the distance of 200 metres from the small bridge at a speed of approximately 70 kilometres per hour which would have taken about 10 seconds. Based on the evidence that southbound traffic on Creek Road has a green light for a guaranteed minimum period of 12 seconds^[27] Mr Murphy submitted that this inevitably led to the conclusion that the plaintiff must have faced a green traffic light. That contention would of course be correct if it is accepted that Mr Conis was indeed on the bridge at the moment of the collision. However his rather dogmatic evidence that he was on the bridge at the moment of the collision is difficult to reconcile with a statement made by him in a telephone conversation with a WorkCover Queensland employee on 4 November 2005. In that conversation Mr Conis stated that the “accident happened about half a kilometre up the road ahead of him.”^[28] Mr Conis accepted that he may have said that^[29] but he did not satisfactorily explain why he would have said so.

24. [24]
    Mr Conis spoke loudly and seemed rather excitable. He was as I have said rather dogmatic particularly in relation to his position on the bridge at the time of the collision. These factors alone could be explicable on the basis that he is not accustomed to the court room environment. However my impression is that he was overly confident and I find it difficult to reconcile his claim that he was on the bridge at the time of the collision with his contradictory statement to the WorkCover Queensland employee that he was “half a kilometre up the road”.

25. [25]
    Mr Murphy’s argument depends upon Mr Conis having observed the collision itself while he was on the bridge rather than perhaps having seen the aftermath of it at that time. When asked to explain what he had observed Mr Conis said, “Well, I was driving up Creek Road and I didn’t necessarily see the accident in that instant, I was looking forward as the peripheral vision but I saw something occur which was the accident and it was at that point that I focussed directly at what was going on. I was 200 metres down the road crossing what is a small bridge across a creek when my attention was drawn to the accident”.^[30]

26. [26]
    I am unable to conclude that Mr Conis was on the bridge at the moment of the collision. Perhaps as he said to the WorkCover Queensland employee he was a little further north along Creek Road when his attention was drawn to the accident. I accept as Mr Murphy submitted that Mr Conis was not providing a formal statement to the police or anything of that nature when he spoke to the WorkCover Queensland employee but nevertheless I consider that the conversation reveals a contradiction in his evidence that undermines his reliability on the question of exactly where he was when he saw the collision if indeed he did see the moment of collision rather than the aftermath of it.

27. [27]
    Mr Conis was rather earnest and clearly endeavoured to give honest evidence however I consider that his statement to the WorkCover Queensland employee on 4 November 2005 is a more reliable guide. I accept that Mr Conis proceeded through the intersection on an amber light and to his credit he rendered assistance to the plaintiff and Mrs Mimiague. However my overall assessment of Mr Conis’ evidence does not assist in the resolution of the question of whether the plaintiff faced a green traffic light as he proceeded through the intersection.

28. [28]
    The factual issue must therefore be resolved by consideration of the evidence of the plaintiff and Mrs Mimiague on the one hand and the first defendant and to a lesser extent Mr Giroul on the other. Mr Murphy correctly pointed out that Mr Giroul is not an independent witness. And as Mr Murphy also pointed out even if it is accepted that Mr Giroul turned with a green arrow that does not necessarily mean that the first defendant also had the green arrow.

29. [29]
    I have concluded that the collision occurred in the way described by the first defendant. I do not accept that the plaintiff had a green traffic light when he entered the intersection of Creek Road and Pine Mountain Road.

30. [30]
    I consider that the plaintiff’s evidence that he faced a green traffic light at the intersection is based upon a reconstruction rather than an actual memory. If the plaintiff had been paying attention to the intersection one would expect that he would have seen the vehicle driven by Mr Giroul cross his path. However his evidence was that he saw no other vehicle cross in front of him at the intersection.^[31] He said that the street was almost empty.^[32] The plaintiff’s evidence is that the other vehicle “ … stopped for a second and then continued driving.”^[33]

31. [31]
    The first defendant said that when he noticed the potential danger posed by the oncoming vehicle he brought his vehicle to a “virtual halt”.^[34] The plaintiff’s description of the incident in his Application for Compensation to WorkCover Queensland dated 28 October 2005 was “Driving home from work when another car came out in front of us. That car was doing a u-turn and then stopped”.^[35]

32. [32]
    If the plaintiff had been paying attention to the intersection he had ample time to stop, brake, slow down or otherwise avoid the collision. He says that he “tried to brake.”^[36]

33. [33]
    Mrs Mimiague said that she was a nervous passenger and for that reason paid attention to the traffic around her.^[37] It is perhaps then a little surprising that she has no recollection of having seen the vehicle driven by Mr Giroul.^[38] I consider that her evidence that the traffic light was green is based upon a reconstruction of the events rather than an actual memory. There is perhaps a slight indication of her willingness to reconstruct the events based upon her evidence in cross-examination that she recalled that the traffic lights at the previous intersection were also green.^[39] I do not attach significant weight to that evidence but it is perhaps as I have said a slight indication that she is willing to reconstruct her evidence.

34. [34]
    I was impressed by the first defendant’s evidence. He was clearly driving carefully. He said that he had a green arrow permitting him to make the right turn into Pine Mountain Road and I accept that.^[40] When he noticed the plaintiff’s vehicle travelling too fast to stop he came to “a virtual halt”.^[41]

35. [35]
    In his statement dated 1 March 2006 the first defendant said that he “ … slowed down to about 10 km/h and I thought the white Mazda was going to swerve around me because there was plenty of room on my right side.”^[42] I do not think there is any significance in the variation between the first defendant’s statement dated 1 March 2006 and his evidence in this court. He readily accepted that his recollection four months after the incident would be better than his recollection at the time of trial.^[43]

36. [36]
    Although Mr Giroul is a friend of the plaintiff I did not detect any basis for concluding that he invented, concocted or embellished any aspect of his evidence on that account. I accept that Mr Giroul had a green arrow when he made the right turn into Pine Mountain Road. As Mr Murphy correctly submitted that does not necessarily mean the first defendant also had a green arrow. Mr Murphy was critical of aspects of Mr Giroul’s evidence particularly his evidence as to the sequence of the traffic lights. He submitted that this evidence was inconsistent with that given by the first defendant and the signal timing sequence evidence from the Brisbane City Council. I attach no significance to any discrepancy in relation to his recollection of the traffic light sequence. Mr Murphy also placed reliance on Mr Giroul’s concession in cross-examination that he was “just really following the traffic.”^[44] However I do not regard that concession in cross-examination as undermining his overall evidence. At the conclusion of further cross-examination Mr Giroul maintained that, based upon his statement he turned on a green arrow.^[45] Not surprisingly he agreed that his recollection when he made his statement on 2 March 2006 would have been clearer and more accurate than at the time of trial.^[46]

Findings on liability

37. [37]
    My factual findings therefore are as follows:

• Mr Giroul turned right from Creek Road into Pine Mountain Road on a green arrow;
• Shortly thereafter the first defendant followed also on a green arrow;
• It follows from the Brisbane City Council’s signal timing sequence evidence^[47] that the plaintiff must have faced a red traffic light as he travelled into the intersection on Creek Road;
• Apprehending the danger posed by the plaintiff’s vehicle, the first defendant slowed down, bringing his vehicle to an oblique angle partly obstructing the southbound lanes on Creek Road;
• Although the plaintiff had the time and opportunity to brake or manoeuvre to avoid a collision he did not do so and the vehicles collided.

38. [38]
    It follows that the plaintiff has failed to establish on the balance of probabilities that the collision was caused by the negligence of the first defendant.

39. [39]
    Accordingly the plaintiff’s claim must be dismissed.

40. [40]
    I must nevertheless assess the plaintiff’s damages.

Assessment of damages

41. [41]
    The plaintiff was 60 years old at the time of the accident. He is now 65 years old.

The previous accident on 2 September 1998

42. [42]
    On 2 September 1998 the plaintiff was the driver of a motor vehicle which, while stationary, was struck from behind by another vehicle. He attended his general practitioner the same day complaining of low back pain, a little pain in the upper neck and minor scratches. He was absent from work for one day.

43. [43]
    The plaintiff was examined by Dr John Fraser, orthopaedic surgeon on 1 February 2001. In his report dated the same day^[48] Dr Fraser states that at that time the plaintiff continued to experience constant low back pain. The plaintiff complained of pain and stiffness after activity. He was taking two to six Panadol tablets per day. He also complained of intermittent neck pain occurring once per fortnight. The plaintiff told Dr Fraser that he played no sport and that he continued to work as a cleaner. He also said that he was unable to run. There were no other limitations of activity although he experienced pain with prolonged sitting. Dr Fraser referred to x-rays and CT scans that showed degenerative changes in the plaintiff’s lower lumbar spine.

44. [44]
    Dr Fraser stated that the plaintiff had pre-existing spondylosis affecting the cervical and lumbar spine. He expressed the opinion that the plaintiff sustained a strain of the supporting soft tissue structures of the neck and lower back. He stated that the plaintiff’s continuing symptoms constituted a permanent partial disability of 4% of efficient bodily function, half of which was attributable to the subject motor vehicle accident and the other half to pre-existing degenerative changes. Dr Fraser also stated that the plaintiff’s injuries were insufficient to prevent him from continuing to work as a cleaner.

Injuries and medical reports

45. [45]
    The plaintiff was taken by ambulance to the Princess Alexandra Hospital. On presentation he complained of neck and lumbar back pain.^[49] An x-ray and CT scan were performed. There were no fractures. The plaintiff was later discharged with analgaesia.

46. [46]
    The plaintiff saw his general practitioner Dr Pascualina Romano on 1 November 2005. He complained of lower back pain radiating to his left leg and pain aggravated by lifting, bending or sitting for prolonged periods.^[50] In her report dated 2 February 2006 Dr Romano notes the plaintiff’s other pre-existing conditions as “Low back pain following MVA 1999” (sic) and “possible pre-existing degenerative changes.”  Dr Romano noted that the plaintiff had returned to work full time as before the accident despite experiencing ongoing discomfort.

47. [47]
    The plaintiff also saw Dr Romano on 8 November 2005, 22 November 2005, 6 December 2005, 13 January 2006 and 31 January 2006.

48. [48]
    The plaintiff received physiotherapy paid for by WorkCover Queensland in the period 7 November 2005 to 28 March 2006.^[51] The plaintiff said that physiotherapy ceased because he was told by the physiotherapist that his “condition was not going to be solved with physiotherapy …”.^[52]

49. [49]
    The plaintiff gave evidence that prior to the 2005 accident he experienced episodes of mild back pain.^[53] He said that he was now experiencing much more severe pain.^[54]

50. [50]
    The plaintiff said that prior to the 2005 accident he enjoyed playing soccer with his son at the Gold Coast. He usually played once a week.^[55] However, since the 2005 accident he is unable to run.^[56] In cross-examination by Mr Feely the plaintiff agreed that following the 1998 accident he had to stop a lot of his activities due to pain. However he later resumed such activities including playing soccer.^[57]

51. [51]
    The plaintiff was examined by Dr Lloyd Toft, orthopaedic surgeon, on 2 November 2006. In his report dated 7 November 2006^[58] Dr Toft noted the plaintiff’s past history as including a road traffic accident five or six years earlier which resulted in him suffering lower back pain. He said that the plaintiff had not completely recovered from the symptoms of that accident at the time of the 2005 accident. The plaintiff told Dr Toft that his neck was “not too bad”. He said that he sometimes experiences pain or discomfort when he moves his neck but generally there is nothing that aggravates or causes any neck symptoms.^[59] However the plaintiff told Dr Toft that his lower back was “sore all the time”. He said that his symptoms are aggravated by bending or prolonged sitting. Also, his comfortable driving time is no more than about half an hour.^[60]

52. [52]
    The plaintiff told Dr Toft that he was a cleaner working at two jobs, one in the morning and one in the afternoon. He said to Dr Toft that he was ceasing the afternoon job in December 2006 “as it is too heavy”.^[61]

53. [53]
    Dr Toft stated that a CT scan of the plaintiff’s lumbar spine on 18 January 2006 showed multilevel degenerative changes in the lower lumbar region. He said that there was also advanced degenerative change at the T11/12 level.

54. [54]
    Dr Toft stated that upon examination the plaintiff was observed to move his head and neck freely without evidence of pain or guarding. There was no tenderness or muscle spasm in the cervical spine. He said that the plaintiff could demonstrate full flexion and extension in the cervical spine. He said that rotation and lateral flexion were mildly restricted more so to the right than the left.

55. [55]
    Dr Toft’s diagnosis was that the plaintiff suffered strains of the musculoligamentous supporting structures of the cervical spine and lumbar spine in the presence of pre-existing and previously symptomatic degenerative changes.^[62] The physical examination showed mild reduction in rotation and lateral flexion which Dr Toft considered to be within the expected parameters for a man of the plaintiff’s age with his known underlying degenerative changes. Dr Toft stated that he could not support a contention that the plaintiff has suffered any permanent bodily impairment as a result of the neck injury. He therefore classified the plaintiff under Diagnosis Related Estimates Cervical Spine Category I at 0% impairment of the whole person. He said that there were some mild ongoing symptoms but there are no significant physical findings which in his view resulted from the injuries sustained in the accident. As to the lumbar spine, Dr Toft stated that there was some mild restriction in movement which he considered was consistent with the plaintiff’s past history of ongoing back symptoms and the known underlying multilevel degenerative changes. He was unable to support a contention that the plaintiff suffered any permanent bodily impairment as a result of any lumbar spinal injury suffered in the accident. He therefore classified the plaintiff under Diagnosis Related Estimates Lumbar Spine Category I at 0% impairment of the whole person.

56. [56]
    Dr Toft stated that the plaintiff’s ongoing symptoms and physical signs represented the natural history of his pre-existing condition.

57. [57]
    The plaintiff was examined by Dr Scott Campbell, neurosurgeon on 24 January 2007. Dr Campbell prepared two reports; the first is dated 24 January 2007^[63] and the second is dated 7 March 2010.^[64] In the first report dated 24 January 2007 Dr Campbell noted that it was 15 months since the accident and the plaintiff continued to suffer lower back pain and stiffness. The lower back pain occurred daily and intensified with physical activity. The lower back pain radiated down the plaintiff’s left leg. Dr Campbell noted that at the time of the accident the plaintiff was employed as a cleaner in two separate jobs, one in the morning and one in the afternoon. After the accident the plaintiff had one week off work but later ceased the afternoon job as he was unable to cope. Dr Campbell referred to the 1998 motor vehicle accident in which the plaintiff sustained a lower back injury. Dr Campbell noted that following that accident the plaintiff experienced ongoing intermittent lower back pain which did not interfere with his day-to-day or work activities.

58. [58]
    Upon examination of the lumbar spine Dr Campbell noted that there was decreased flexion by 50% and extension by 80%. He said that there was pain at the extremity of these movements. There was also tenderness and guarding over the left lumbar paraspinal muscles.

59. [59]
    Dr Campbell’s diagnosis is that the plaintiff suffered a chronic soft tissue musculoligamentous injury to the lumbar spine. He said that the plaintiff’s prognosis with respect to performing light duties and restricted hours at work was satisfactory. He said that the plaintiff may require the occasional day off work in the event that there was any acute exacerbation of his lower back pain.

60. [60]
    Dr Campbell stated that the plaintiff’s 1998 injury contributed to his current impairment.^[65]

61. [61]
    Dr Campbell said:

“Traumatic soft tissue injuries usually resolve over a few days to weeks but in some cases symptoms persist and become chronic in nature. This has been the case for Mr Mimiague. Past treatment has been appropriate but symptoms have become chronic and the point of maximal medical improvement has been reached.”^[66]

62. [62]
    Dr Campbell’s assessment utilising the American Medical Association Guide to the Evaluation of Permanent Impairment, 5^th ed was that the plaintiff suffered a DRE (Diagnosis Related Estimate) category II, lumbar spine injury. The range for a DRE category II injury is 5% to 8%. Dr Campbell expressed the opinion that the plaintiff is suffering a 7% whole person impairment. He said that the plaintiff was rated towards the higher end of the range due to the severity of pain and the impact of the pain on his activities of daily living. However Dr Campbell stated that 30% of the plaintiff’s impairment was due to his pre-existing pathology. He therefore concluded that a 4.9% whole person impairment was attributable to the 2005 accident. He said that the impairment is likely to be permanent.^[67]

63. [63]
    In his second report dated 7 March 2010^[68] Dr Campbell stated he had reviewed the progress notes made by the plaintiff’s general practitioner which confirmed a pre-existing lower back injury with ongoing intermittent lower back pain thereafter. He said that the notes did not alter his earlier opinion that the plaintiff has an overall impairment of 7% of the whole person with 30% being attributable to pre-existing pathology.

General damages

64. [64]
    The assessment of general damages is to be made in accordance with the Civil Liability Act 2003 (“the Act”) and the Civil Liability Regulation 2003 (“the Regulation”).

65. [65]
    The term “general damages” is defined in s 51 of the Act and includes damages for pain and suffering and loss of amenities of life. The court is required by s 61 of the Act to assess an injury scale value (“ISV”) from the ranges of injury scale values set out in schedule 4 of the Regulation. Section 62 of the Act provides that general damages are to be calculated by reference to the general damages calculation provisions applicable to the period within which the injury arose. Section 6A(2) of the Regulation provides that schedule 6A, s 1 is the general damages calculation provision for injuries arising on and from 2 December 2002 to and including 30 June 2010.

66. [66]
    The matters to which a court is to have regard in the application of schedule 4 are set out in schedule 3. Section 7 schedule 3 provides:

7 Aggravation of pre-existing condition

3. (1)
   This section applies if an injured person has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV.

3. (2)
   In considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.

67. [67]
    Injuries to the lumbar spine are governed by schedule 4 part 6 division 2 of the Regulation.

68. [68]
    Mr Murphy for the plaintiff submits that the plaintiff’s injuries fall within item 93 which relates to moderate thoracic or lumbar spine injury – soft tissue injury and provides an ISV range of 5 to 10. Mr Murphy submits that an ISV of 6 or 7 is appropriate. However Mr Murphy submits that as the plaintiff also suffered a neck injury, schedule 3 section 3 of the Regulation allows for a higher ISV assessment. He submits that the ISV should be uplifted to the maximum allowable, which is an ISV of 10. This would result in an award for general damages of $11,000.00 applying the formula set out in schedule 6A s 1(b) of the Regulation.

69. [69]
    Mr Feely for the defendants submitted that the plaintiff’s injury fell within item 94, minor thoracic or lumbar spine injury which provides an ISV range of 0 to 4. He submitted that the appropriate ISV was 1 to 2 which would result in an award of $1,000.00 to $2,000.00 for general damages.

70. [70]
    The determination of the appropriate ISV necessarily involves the question of whether the evidence of Dr Toft or the evidence of Dr Campbell is to be accepted.

71. [71]
    I prefer Dr Toft’s evidence. In my view Dr Toft had greater regard to the plaintiff’s overall medical condition in the formulation of his opinion.

72. [72]
    Dr Campbell did not have Dr Romano’s notes when he prepared his report on 24 January 2007. Dr Romano’s notes of the consultation on 1 November 2005 record the following, “He has been involved in a MVA many years ago and after that he has had chronic low back pain”.^[69] Dr Romano’s assessment was that the plaintiff suffered a musculo skeletal injury which was an exacerbation of chronic back pain.

73. [73]
    Dr Romano’s notes of the consultation on 6 December 2005 state that the plaintiff’s back and neck pain were persistent since the accident although he admitted having back pain before the accident. However since the accident the pain had become worse.

74. [74]
    Dr Romano’s notes of the consultation on 13 January 2006 state that the plaintiff’s neck pain had improved but the back pain radiates to the leg. The notes record that the injury was exacerbated after the accident but that the plaintiff had chronic pain for years.^[70]

75. [75]
    While Dr Campbell reviewed Dr Romano’s notes prior to his second report dated 7 March 2010 in my view he has had insufficient regard to the plaintiff’s pre-existing lower back injury.

76. [76]
    Furthermore I note that when the plaintiff saw Dr Fraser on 1 February 2001 following the 1998 accident he complained that he was unable to run.^[71] It is difficult to discern on the plaintiff’s evidence the time at which he claims to have sufficiently improved following the 1998 accident so that he was able to play soccer with his son on a weekly basis.

77. [77]
    Furthermore I note that in his report dated 1 February 2001 Dr Fraser stated that the plaintiff at that stage suffered continuing symptoms constituting a permanent partial disability of 4% of efficient bodily function of which half was attributable to the 1998 motor vehicle accident and the other half to pre-existing degenerative change. I do not think that Dr Campbell had sufficient regard to that assessment when formulating his opinion that the plaintiff was suffering a 7% whole person impairment of which 30% was attributable to pre-existing pathology. Dr Fraser’s opinion in 2001 was that the plaintiff had a 4% permanent partial incapacity. It was not suggested that his opinion was incorrect. Yet Dr Campbell’s assessment is that of the 7% whole person impairment, only 2.1% is due to pre-existing pathology.

78. [78]
    In my view Dr Toft’s opinion is also consistent with the plaintiff’s ability to return to employment following the accident. At the time of the accident the plaintiff had two cleaning jobs. He returned to both jobs after a period of about 7 to 10 days. He ceased the more demanding work in November 2006.^[72] He continued working in the other job until he became eligible for the age pension in February 2010.^[73]

79. [79]
    I accept Dr Toft’s opinion that the plaintiff suffered strains of the musculoligamentous supporting structures of the cervical and lumbar spine with the presence of pre-existing and previously symptomatic degenerative changes. I accept that the plaintiff has not suffered any impairment of the whole person.

80. [80]
    In my view the plaintiff suffered a temporary exacerbation of his pre-existing chronic low back injury. And his ongoing symptoms are the result of this pre-existing condition.

81. [81]
    In my view the plaintiff’s injury falls within item 94, minor thoracic or lumbar spine injury, of schedule 4. The ISV range for that injury is 0 to 4. For this injury the schedule states that, “an ISV at or near the top of the range will be appropriate, whether or not the injured person continues to suffer some ongoing pain, if the injury will substantially reach maximum medical improvement, with only minor symptoms, within about 18 months after the injury is caused”. The schedule also states that “an ISV at or near the bottom of the range will be appropriate if the injury will resolve without any ongoing symptoms within months after the injury is caused”.

82. [82]
    Bearing in mind the injury to the plaintiff’s neck I consider that the appropriate ISV is 4 which results in an award for general damages of $4,000.00. Section 60(1) of the Act precludes the payment of interest on general damages.

Special damages

83. [83]
    The following special damages were agreed:^[74]

Medical expenses refundable to WorkCover Queensland$1,059.00

Rehabilitation expenses refundable to WorkCover Queensland$1,453.21

Travel expenses refundable to WorkCover Queensland$54.20

Fox v Wood damages$196.00

Medicare charge$32.10

Travelling expenses incurred by the plaintiff$100.00

Total$2,894.51

84. [84]
    In addition to the agreed special damages Mr Murphy for the plaintiff also sought an award of $1,577.40 for pharmaceutical expenses and $150.00 for the cost of a gardener.

85. [85]
    The plaintiff said that he took Panadol following the 1998 accident.^[75] However by the time of the 2005 accident he was “only taking Panadol for headaches or for normal things when you have a cold”.^[76] He said that he now takes two to four Panadol tablets each day.^[77] He takes Nurofen less frequently because it affects his stomach, but he takes it two to four times per week.^[78]

86. [86]
    Mrs Mimiague’s evidence is that a box containing 24 Panadol tablets costs between $3.80 and $4.20.^[79] She buys one to two boxes of Panadol per week. She said that a box of Nurofen containing 24 tablets costs $5.30. She buys one to two boxes of Nurofen each month.^[80]

87. [87]
    Mr Murphy for the plaintiff submitted that the approximate weekly cost of Panadol and Nurofen was $6.60. He submitted that allowing that expense from the date of the accident to the date of trial, a period of 239 weeks resulted in an amount of $1,577.40. Mr Feely for the defendants submitted that as the plaintiff’s injury was a temporary exacerbation of his pre-existing chronic low back injury, no allowance should be made for pharmaceutical expenses.

88. [88]
    When the plaintiff saw Dr John Fraser approximately 2 years 5 months after the 1998 accident he complained of pain and stiffness after activity and said that he took two to six Panadol tablets per day.^[81] The plaintiff’s evidence does not make clear when his Panadol consumption diminished.

89. [89]
    Having regard to my conclusion that the plaintiff suffered a temporary exacerbation of his pre-existing chronic low back injury I consider that it is reasonable to allow pharmaceutical expenses of $5.00 per week for a period of 26 weeks. This results in an award of $130.00 for pharmaceutical expenses.

90. [90]
    Mr Murphy submitted that the plaintiff required the assistance of contractors to do gardening work on three or four occasions following the accident at a cost of $50.00 each time. He submitted that $150.00 should be allowed for this expense. In my view that is reasonable.

91. [91]
    It was agreed that the appropriate interest rate for past monetary losses pursuant to s 60(2) of the Act was 2.89%. In respect of the agreed special damages set out in Exhibit 4 the only item attracting an award of interest is the travelling expense incurred by the plaintiff amounting to $100.00. This results in an award of interest on the sum of $380.00 at the rate of 2.89% for the period from the date of the accident to the date of judgment.

Past loss of income

92. [92]
    At the time of the accident the plaintiff was working at two jobs as a cleaner. The first job was with Ellems Cleaning Services where he worked four hours every Monday to Friday cleaning at the Queensland Museum. The second job was with Spotless Cleaning Services where he worked four hours each evening Monday to Friday cleaning at the Port of Brisbane.

93. [93]
    The job with Ellems Cleaning Services mostly entailed cleaning windows and was generally lighter work. The job with Spotless Cleaning Services involved polishing, vacuuming, mopping and cleaning the toilets, and was heavier work.

94. [94]
    After an initial period of a week to 10 days off work the plaintiff returned to both jobs. He returned to full duties at Spotless Cleaning Services. However at Ellems Cleaning Services he initially returned only to window cleaning because the other tasks involved heavier work. He seemed to accept in cross-examination that he ultimately returned to full duties in both jobs.^[82]

95. [95]
    It is agreed that in the period from the date of the accident to 8 November 2005 the plaintiff lost $577.13 in income from the two cleaning jobs. It is also agreed that the lost compulsory superannuation benefit flowing from lost income is $51.94.

96. [96]
    However Mr Murphy submitted that beyond the agreed past loss, the plaintiff also suffered a loss of income with Ellems Cleaning Services amounting to $4,511.64 and a further loss of income from Spotless Cleaning Services amounting to $41,002.93.

97. [97]
    The plaintiff stopped working for Spotless Cleaning Services in November 2006.^[83] He said that was as a result of pain in his back. He stopped working at Ellems Cleaning Services when he turned 65 years old in February 2010.^[84]

98. [98]
    I have already expressed the conclusion that the plaintiff suffered a temporary exacerbation of his pre-existing chronic low back injury. In my view his ongoing symptoms are the result of his pre-existing condition including degenerative changes.

99. [99]
    After the plaintiff finished work at Spotless Cleaning Services in November 2006 he commenced receiving a Newstart Allowance to supplement his income from Ellems Cleaning Services.^[85] Upon retirement from Ellems Cleaning Services the plaintiff and his wife commenced receiving the aged pension which at the date of trial was $485.60 each per fortnight.^[86]

100. [100]
     I am unable to conclude that the plaintiff stopped working at Spotless Cleaning Services in November 2006 as a result of the injuries he suffered in the 2005 accident. Similarly I conclude that he did not finish work at Ellems Cleaning Services in February 2010 as a result of the injuries suffered in the 2005 accident.

101. [101]
     In those circumstances the plaintiff’s past economic loss is the amount of $577.13 which is the agreed sum for the period from the date of the accident to 8 November 2005. The consequential loss of the 9 per cent compulsory superannuation contribution is $51.94 which should also be allowed. Interest should be allowed on past economic loss at the rate of 2.89% for the period from the date of the accident to the date of judgment.

Future loss of income

102. [102]
     The plaintiff’s evidence was that he planned to work for two or three years past retirement age of 65.^[87] I doubt that is so particularly as he seemed to accept he and his wife were financially better off receiving the full age pension and the pension supplement.^[88]

103. [103]
     In any event based on my view that the plaintiff suffered a temporary exacerbation of his lower back injury, if he is unable to work until age 67 or 68, that is not attributable to the injuries he suffered in the 2005 accident. Accordingly I make no allowance for future economic loss.

Future pharmaceutical expenses

104. [104]
     Mr Murphy submitted that the plaintiff should be awarded $3,702.60 for the future cost of Panadol and Nurofen. As I have indicated any ongoing need for such medication is not attributable to the accident and I therefore make no allowance for future pharmaceutical expenses.

Summary

105. [105]
     My assessment of the plaintiff’s damages is as follows:

General damages$4,000.00

Special damages$3,274.51

Interest on special damages^[89]$50.74

Past loss of income$577.13

Interest on past loss of income^[90]$77.06

Past loss of superannuation benefits$51.94

Total$8,031.38

Orders

106. [106]
     The plaintiff’s claim is dismissed.

107. [107]
     I will hear submissions on the issue of costs.