Roach v O'Meara[2012] QDC 145

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this proceeding the plaintiff claims damages for personal injuries sustained when the vehicle which he was driving was struck by a vehicle being driven by the first defendant at the intersection of Hambledon Drive and Walker Road, Edmonton at approximately 9.40 am on 27 February 2009 (“the accident”).

2. [2]
   The defendants admit liability for the accident and only the quantum of the plaintiff’s claim remains in dispute.

The accident

3. [3]
   The plaintiff gave evidence that as he approached the intersection in question his vehicle was hit on the front right hand side spinning it 180 degrees. He was pushed up against the driver’s door and exited the car feeling slightly dazed and confused. He experienced pain in his neck and back and cut one of his big toes when he stood on glass exiting the vehicle.

4. [4]
   The vehicle he was driving was extensively damaged and written off by the relevant insurer as being uneconomical to repair.

The injuries sustained by the plaintiff

5. [5]
   The plaintiff visited his general practitioner later on the day of the accident. The plaintiff gave evidence that he was advised to rest and take pain killers by his general practitioner. His evidence is confirmed by entries made by his general practitioner in her records. It is recorded that she prescribed rest, Brufen and Codeine Forte. Perusal of these records also reveals that a small 1.2 mm shard of glass was surgically removed from his right big toe on 6 March 2009. An entry by his general practitioner on 2 May 2011 confirms that the plaintiff presented with an acute wry neck and that significant restrictions of both flexion and extension were noted on examination. It is recorded that the plaintiff stated to her that he “has had problems on occasions” since the accident for no obvious reason. The plaintiff is also recorded as saying that Bowen Therapy helps a lot but that he was not taking the pain killers as he felt “too spaced out” preferring to use ice to treat his symptoms. It is also recorded that his whole back was hurting and that he could not play golf much.

6. [6]
   These observations are consistent with the plaintiff’s evidence that he suffered from intermittent symptoms in his neck and back following the accident, consisting of knife-like pain at the back of his neck and muscle spasms in his lower back and upper back.

7. [7]
   The plaintiff was examined by Dr Pentis, orthopaedic surgeon, on 15 August 2010. In his report before me,^[1] Dr Pentis noted that:

“There was tenderness in the thoracolumbar muscular region on the right hand side. Tenderness in the right cervicoscapular musculature.

Decreased range of movement on lateral flexion of the spine to the left. Decreased rotation of the neck to the left. Pain on lateral flexion to the left. Slight decreased flexion in the lower spine.”

8. [8]
   When he was examined by Dr Dickinson, orthopaedic surgeon, on 15 November 2010, Dr Dickinson did not note any restrictions in movement. In his report dated 17 November 2010 ^[2], he stated:

“There is tenderness in both trapezii. He is able to flex and extend his neck comfortably through a full range of motion. Lateral flexion and lateral rotation are normal to each side but he does feel discomfort at the extremes of movement.

There are no upper limb neurological signs.

With respect to the lumbar spine, there is tenderness at both posterior superior iliac spines. There is no muscle spasm. He is able to flex his spine such that the fingertips reach almost to the floor. Extension, lateral flexion and rotation are normal although he moves judiciously.”

9. [9]
   In my view the discrepancy between the findings on examination of Dr Dickinson as opposed to those of Dr Pentis concerning minor restrictions in movement are well explained by the intermittent nature of the plaintiff’s symptoms. As Dr Pentis explained under cross-examination^[3]:

“The problem is whenever you see someone with a soft tissue injury, they may not be the same each time you see them. Unless you have had a very major injury, your symptoms will wax and wane, therefore your signs will vary.”

10. [10]
    I accept the plaintiff’s evidence set out above although I note that some of the background information given to Dr Pentis was shown to be factually incorrect.

The plaintiff’s employment

11. [11]
    The plaintiff was born on 15 December 1987.^[4]  He is therefore currently 24 years of age. At the time of the accident he had just completed the course requirements to be a professional golfer. After completing Year 12 at the end of 2004, he obtained employment at the Cairns Golf Club where he continues to be employed to the present day.

12. [12]
    Although the plaintiff gave evidence that he was playing of a handicap of 1 at age 17, his performance in golf tournaments both before and after the accident, has been disappointing. He has only received the most paltry earnings a way of prize money. This is not the only way a professional golfer earns a living however. He sells merchandise in the Pro Shop at the golf course and performs various administrative functions. He also gives people golf lessons. For a private lesson he currently charges $80 per half hour receiving $60 himself.

13. [13]
    The plaintiff gave evidence that he is playing considerably less golf than before the accident, currently only playing once per month on a Saturday afternoon in order to promote private lessons. His evidence in this regard was confirmed by his employer Mr Wilson who stated that the plaintiff now seldom plays golf.^[5]  The plaintiff asserts that by playing less golf it gives him less opportunity to associate with members of the golf club, identify problems with their game and market his lessons. Again, this evidence was confirmed by Mr Wilson.^[6]

14. [14]
    Significantly the plaintiff attended work on the day of the accident and did not require any time off work as a consequence of injuries sustained in the accident. In correspondence attaching his Notice of Accident Claim Form dated 23 June 2009, the plaintiff stated “I now feel that I am back to my old self again and cannot foresee any further problems arising from this accident at this stage”.^[7]

The assessment

15. [15]
    In assessing general damages I need to have regard to the relevant provisions of the Civil Liability Act 2003 (“CLA”)^[8] applying Schedule 4 of the Civil Liability Regulation 2003 (“CLR”) to the evidence before me. I conclude that the plaintiff has suffered a minor cervical spine injury prescribed by Item 89, a minor thoracic or lumbar spine injury prescribed by Item 94 and a minor toe injury prescribed by Item 154. As there are multiple injuries it is appropriate to apply SCHEDULE 3, PART 2 of the CPR. In my view the dominant injury is the minor cervical spine injury but the adverse impact of the multiple injuries on the plaintiff warrants a higher range than the injury scale value prescribed in Item 89^[9]. In my view an appropriate value is 5^[10], this leads to a calculation of general damages pursuant to s 62 of the CLA in the sum of $5,000.

16. [16]
    The plaintiff seeks global awards for both past and future economic loss. Such an assessment must have regard to provisions of s 55 of the CLA which relevantly provides:

3. “(2)
   The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.”

17. [17]
    In Reardon-Smith v Allianz Australia Insurance Ltd^[11] the Court of Appeal considered s 55 of the CLA in the context of the principles laid down by the High Court in assessing damages for loss of a chance of future events occurring  in Malec v J C Hutton Pty Ltd.^[12] Keane JA who wrote the leading judgment, observed:

“It is apparent from these two passages that all members of the Court were agreed that, in the valuation for the loss of a chance of a benefit, there must be an assessment of the degree of likelihood that a hypothetical event affecting the quantum of recoverable damages would have occurred and the adjustment of the award to reflect that likelihood:  in the judgment of Deane, Gauldron and McHugh JJ, there is no strict insistence that the extent of the “probability” of the chance occurring must be expressed as a percentage…  An attempt to express the probability of each of these events occurring in percentage terms would be to engage in a vain pretence to a degree of certainty that is simply not attainable.”^[13]

18. [18]
    In the course of cross-examination Dr Pentis noted that as a professional golfer the plaintiff was likely to experience symptomatology over and above what would be expected from someone with a less arduous occupation.^[14]  This is in my view is self-evident. I accept that the plaintiff does continue to experience intermittent symptomatology which impacts to some extent on his ability to play golf. This is confirmed by the notes of his general practitioner referred to earlier. An analysis of the plaintiff’s income to date reveals that it has steadily increased over time. I am not of the view that had it not been for the accident he would have been a successful player on the professional or semi-professional golf circuit either in the past or in the future. In the circumstances I am of the view that the plaintiff does not have a claim for past economic loss on this basis but believe that it is appropriate to make a small allowance for the lost opportunity to generate further income from golf lessons which while not speculative was none the less limited. I award a global sum of $600.00 in this regard.

19. [19]
    Turning to the question of future economic loss, the plaintiff is still only 24 years of age. I accept that there are limitations on his capacity to play golf and that these limitations will restrict his opportunity to attract golf lessons in the future. He has been continuously employed as either a trainee professional golfer or a professional golfer with the same employer since leaving school. The evidence of Mr Wilson discloses that he is a well regarded employee in secure employment. Pursuant to s 55 of the CLA I am satisfied that he will suffer loss of income in the future, having regard to his age, work history and the impact of the permanent impairment he has suffered as a consequence of the accident. As with the calculation of the award for past economic loss, his prospective loss of income in this regard is not so low as to be regarded as speculative but it is not possible to express it as a percentage. Having particular regard to his age, his work history and the impacts of the symptomatology on his capacity to play golf I assess future economic loss globally in the sum of $40,000.

20. [20]
    Special damages are agreed between the parties in the sum of $461.71 and interest thereon in the sum of $25. I assess damages as follows:

Order

21. [21]
    I order that the defendants pay the plaintiff the sum of $46,086.71.