Kurk v Miller[2014] QDC 105

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff claims damages for personal injuries suffered on 8 October 2011. On this date the first defendant drove his vehicle through a red light and collided with the plaintiff’s vehicle. The defendants admit liability.

2. [2]
   The parties have agreed on a number of heads of damage; however quantum remains in issue regarding future economic loss and future paid care.

The Plaintiff’s Evidence

3. [3]
   The plaintiff is aged 43 being born on 12 May 1970. She resides at Currumbin Waters with her husband and two children aged six and eight years. She left school in Year 10 and has no formal qualifications. She is employed as an administration officer at Australian Unit Administration Pty Ltd at MermaidBeach.  She has been employed with the same company since 1 November 1999, a period of over 14 years.  The plaintiff was employed on a full time basis until she had her two children. At present she is employed on a part-time basis and works 27 hours each week over 4 days.  Her duties are in clerical computer based administration work.^[1]She spends most of her day in front of the computer. Very occasionally she carries out other duties such as making phone calls and photocopying.  Her present goal is to return to full time work when the children commence high school, when they are aged 12 to 13 years^[2].  The plaintiff works in an office comprised of full-time and part-time employees.

4. [4]
   The plaintiff was in good health prior to the accident apart from an episode of plantar fasciitis which caused her to have a break from playing netball^[3]. It is not submitted that this injury affected her, post accident, in relation to performing household or work duties.

5. [5]
   Immediately after the collision the plaintiff felt pain to her right arm, right shoulder and neck.^[4]The symptoms affected her quality of sleep, and were aggravated by physical activity.^[5]The plaintiff returned to work after a few days, however her symptoms persisted. She attended physiotherapy sessions as detailed below. At the time of trial on 4 March 2014 the plaintiff continued to experience symptoms including neck pain, tightness, soreness and stiffness to her right shoulder, and headaches. 

Housework post accident

6. [6]
   After the accident the plaintiff was initially unable to do any heavy lifting above her head. She reported difficulties undertaking repetitive work around the home including vacuuming and mopping. The days following housecleaning, she experienced considerable pain and increasing headaches.

7. [7]
   The plaintiff first attended physiotherapy on 11 October 2011 and continues to attend. She originally attended weekly until approximately mid December 2011. The plaintiff then attended fortnightly until the beginning of April 2012 after which she attended approximately every 4 to 6 weeks. On 14 August 2012 her physiotherapist undertook a patient disability measure assessment where the plaintiff answered certain questions and self assessed her ability to perform certain household tasks.^[6]The scoring scheme ranged from 0, being unable to perform an activity, up to 10, being able to perform the activity at pre-injury level.  The plaintiff scored her ability to perform various tasks as follows:

• Vacuuming 10/10
• Lifting groceries/objects 9/10
• Mopping 9/10
• Reaching above head into wardrobe 10/10

8. [8]
   On 14 August 2012, the same date as the assessment, the plaintiff’s physiotherapist recorded the plaintiff continued to suffer some pain and stiffness when she turned her head. The physiotherapist summarized the plaintiff’s treatment progress at “95% see patient specific functional scale attached”. However, subsequent physiotherapy records note the plaintiff continued to report intermittent increases in pain and stiffness to her neck and shoulder area during the sessions that she attended up until 21 January 2014, only 6 weeks prior to trial.^[7]

9. [9]
   The plaintiff agreed under cross-examination she had nominated the above scores for the abovementioned tasks at her physiotherapy session in August 2012, however stated she scored her ability to undertake the tasks, and not the level of pain she experienced as a result of performing the tasks^[8].  The plaintiff explained that, although she agreed she could carry out these activities at the time of the assessment, she was receiving a considerable amount of physiotherapy which assisted her.  She also explained that, although she only attended physiotherapy approximately every 5 weeks (at the time of trial), her attendance was limited by when she was able to attend, due to family commitments and, if she was unable to attend, she used her wheat pack and took pain medication.^[9]

10. [10]
    The plaintiff also attended orthopaedic specialist Dr Journeaux for a forensic assessment on 1 February 2013. She completed a questionnaire prior to the assessment. The questionnaire provided by Dr Journeaux, was designed to assess her level of function and pain interference whilst undertaking everyday activities. The plaintiff recorded low scores consistent with experiencing limited interference performing daily activities including lifting overhead, the need to take pain mediation daily, and her need for help from family and friends to complete daily tasks including housework. She listed chronic symptoms as pain and discomfort to the neck and right hand shoulder and headaches. She stated the neck strain affected her ability to manoeuvre her neck and shoulder area, for example, looking over her shoulder when reversing in her car.

11. [11]
    When cross-examined about the low scores she had recorded, the plaintiff explained that she understood the purpose of the questionnaire was an enquiry whether she had the capacity perform activities, most of which she could; however the plaintiff maintained in evidence that she continued to experienced pain and discomfort following those activities.^[10]She maintained that she took medication when she suffered muscular pain or headaches, however she tried to limit reliance on medication by using her wheat pack as much as possible.  She advised she purchased pain relief medication in bulk every couple of months.^[11]

12. [12]
    The questionnaire required the plaintiff to indicate the level of help she required from family and friends to complete every day tasks. Although the plaintiff recorded a score of only 2/10,^[12]she maintained in cross-examination that, irrespective of the score, she continued to require approximately 2 hours a week help with certain tasks including vacuuming, mopping and other heavy work;^[13]although she was sometimes able to undertake limited vacuuming or mopping in stages, her husband continued to assist her.^[14]

13. [13]
    At present her husband and children assist with the vacuuming, and her husband carries out the heavy lifting work required at home. The plaintiff estimates the “heavy” housework takes 2 to 2½ hours every week. She describes carrying grocery bags, retrieving items from the top of wardrobes, the repetitive nature of vacuuming and mopping as “heavy” housework. She continues to suffer stiffness, soreness and pain to her right hand shoulder during or after these activities. The plaintiff takes Panadol, Neurofen and/or Voltaren to treat the symptoms of her headaches and muscular pain. She also uses a wheat pack at work and at home to help relieve soreness.

14. [14]
    The plaintiff explained her estimate of time required for assistance around the house was based on mopping and vacuuming the entire house, undertaking any hard repetitive work and sweeping the outside patio.^[15]She also based this estimate on the time taken by her girlfriend to clean for her in the weeks following the accident.^[16]Although her friend helped with washing and hanging out clothes, her help mainly involved vacuuming, mopping, sweeping outside the house and heavy lifting.    The plaintiff maintained that, although she told Dr Gillett during an assessment,  she was able to perform tasks around the home, she was concerned by the level of pain she experienced after performing household tasks.^[17]

Employment post accident

15. [15]
    The plaintiff gave evidence she continues to experience exhaustion after working 27 hours each week. She usually experiences headaches, and stiffness or soreness to her right shoulder from operating the computer mouse with her right hand. The plaintiff is right handed.^[18]

16. [16]
    The plaintiff agreed that, if she needed to take a break during work, she could move around the office. She maintained that most of her duties involve her sitting at her desk where she is required to pay accounts for certain companies. The plaintiff agreed that her employer had made no complaints about her job performance since the accident. She stated that she had not requested her employer to provide a left hand computer mouse, because she is predominantly right handed and has no left hand co-ordination. She considered it would take twice as long for her to perform her tasks if she tried to operate the mouse with her left hand.^[19]She explained she did not have problems manoeuvring the mouse with her right hand; however she suffered pain and headaches at the end of the working day or during the following day.  She conceded she had never mentioned these issues to her employer.^[20]

17. [17]
    The plaintiff conceded she had not tried to work full time since the accident, however she maintained her belief that she would not be able to undertake full time work on the basis of how she presently copes with performing 27 hours a week. She stated that, instead of taking time off work as sick leave when she felt pain, she self managed and attended physiotherapy sessions.^[21]She maintained that, based on her current working hours and her current health, she would be unable to cope with full time work.^[22]The plaintiff maintained that her symptoms would have to improve to be able to cope with working full time 5 days a week.^[23]

Dr Gillet’s assessment and diagnosis

18. [18]
    Dr Gillet, orthopaedic specialist, examined the plaintiff on 6 August 2012 (10 months post accident) for the purpose of providing an expert report.^[24]The plaintiff reported continuing soreness and stiffness of the neck, trouble sleeping on occasions due to discomfort; stiffness and discomfort to the neck and right trapezius area whilst working at her computer.  The plaintiff also reported initially experiencing problems raising her arms above her head and away from her body; however this had improved over time.  The plaintiff reported difficulties carrying groceries which caused discomfort to her right side. 

19. [19]
    On examination Dr Gillet noted the plaintiff had right par vertebral trapezial area pain; glenohumeral joint, acromioclavicular joint and rotator of the right shoulder was normal. He observed the plaintiff to have asymmetric range of motion to the right side; and rotation and lateral flexion was reproducible. He recorded limited movement with 20 degree loss of rotation and 10 degree loss of lateral flexion associated with tilt and altered rhythm. He also noted that the plaintiff’s left side motion was associated with some right sided pain in rotation and left sided discomfort in lateral flexion, but movement was normal. He noted flexion extension range was limited by 10 degrees in each direction but there was no guarding spasm or asymmetry of motion.

20. [20]
    Dr Gillet diagnosed the nature of the plaintiff’s injuries as a musculoligamentous strain injury involving the cervical spine. He concluded that the plaintiff had reached maximum medical improvement and her condition will remain as is. He measured her impairment with reference to AMA5 as DRE II impairment at 5% loss of whole person function due to the sequelae of the accident. In Dr Gillet’s opinion, although the plaintiff is able to return to work, it is with the limitations he has described, including putting up with pain and discomfort which can be facilitated by a good ergonomic environment and the ability to move around and change position whilst working. In his opinion the plaintiff will suffer discomfort and increasing pain when taking part in any contact activities such as netball which she had previously played. In his view, future treatment would include continuing use of medication, physiotherapy and learning to live with, and self manage the condition.

Dr Gillet: plaintiff’s employment

21. [21]
    Dr Gillett considered that, although the plaintiff has the capacity to work longer hours, she would experience increased pain if she did so. In other words, the plaintiff would be able to work longer hours but would potentially have to take more medication and would suffer adverse impact in activities outside her working life.^[25]

22. [22]
    Dr Gillet, in his report, erroneously noted the plaintiff worked full time when he interviewed her, however he conceded, during evidence, that he may have made an incorrect assumption. He maintained in his evidence that the longer the hours the plaintiff worked, the greater the increase in the level of pain she would suffer, hence the need for more medication and the adverse impact on her life outside her work. Dr Gillet maintained the plaintiff would have increasing problems and symptoms with longer hours of work,^[26]albeit he believed she had the capacity to work 40 hours a week.^[27]

23. [23]
    In his report Dr Gillet indicated that the plaintiff would be able to continue working at the same level she was undertaking at the time he assessed her for the longer term. However he considered that her future work capacity would be affected in relation to longer hours such as overtime and “the longer she works in one day, the more discomfort she will have”^[28]. 

Dr Gillet: housework

24. [24]
    In relation to her home duties, Dr Gillet’s opinion, consistent with his examination, was that the plaintiff could perform tasks around the home; however he qualified this by stating the increase in pain to the plaintiff may require her to take more medication, take longer to perform tasks, and accept assistance from family members. He considered this would have an impact upon her quality of life and upon the rest of the family.^[29]

25. [25]
    In Dr Gillet’s opinion the plaintiff will require assistance with household chores at the level she was receiving at the time of his assessment and that, although she is able to complete tasks, she will experience pain and discomfort unless she receives assistance^[30].

Dr Journeaux’ assessment and diagnosis

26. [26]
    Dr Journeaux, orthopaedic specialist, examined the plaintiff on 1 February 2013 (16 months after the accident). The plaintiff reported to him that, a few hours after the accident, she began to feel generalised discomfort and attended her General Practitioner. Subsequently she developed increasing symptoms of pain and stiffness to her right shoulder and neck area. She attended physiotherapy sessions which gave her short term relief. At the time of the assessment the plaintiff reported that, although her symptoms had improved, and they had plateaued over the previous 5 months, they had not completely resolved.^[31]

27. [27]
    When Dr Journeaux examined the plaintiff, he noted tenderness on firm palpitation to the middle to lower cervical spine in the mid line and in the bulk of the right trapezius. He noted minor restriction in full flexion and full extension. The plaintiff had restricted rotation to the right and left, more so on the right to around 90% of normal range. Dr Journeaux concluded the plaintiff had suffered a whiplash type injury, had not made a full recovery, and was at maximum medical improvement. He agreed with Dr Gillet that the plaintiff should be assessed as DRE II, measured at 5%.^[32]

Dr Journeaux: employment

28. [28]
    Dr Journeaux determined the plaintiff’s ability to work was not significantly affected by her injury; however “it is likely that certain aspects of her work would aggravate symptoms”.^[33]When asked whether an increase in the plaintiff’s working week from 27 hours to 40 hours would be achievable, Dr Journeaux stated that many factors would need to be considered including the “pain tolerance of the claimant and her motivation to do that work.  The injury itself is not very significant so - there are many people working with that type of injury if they choose to do so”.^[34]Dr Journeaux agreed in cross-examination that an increase in the plaintiff’s hours of work could aggravate her symptoms.^[35]He concluded that in terms of the plaintiff’s situation she would be likely to suffer exacerbations, (that is, a temporary worsening of her condition), and could possibly also suffer an aggravation of her symptoms which at this stage is unknown.^[36]

Dr Journeaux: housework

29. [29]
    Dr Journeaux considered the plaintiff would be capable of performing all domestic activities of daily living “other than repetitive and heavier household chores”.^[37]

Quantum: agreed

30. [30]
    A number of heads of damage have been agreed between the parties: general damages to be assessed at $7,550.00, special damages at $3,000.00, interest at $1,121.28, future expenses at $1,000.00 and past economic loss at $300.00. The question of future economic loss and future paid care remain in issue.

Quantum: in issue

Future economic loss

31. [31]
    Mr Pope, (for the plaintiff), submits the plaintiff should be awarded future economic loss, calculated on the basis she can maintain her present hours of employment (27 hours per week, working 5.5 hours a day, 4 days a week) with some pain and discomfort, but will be unable to increase her hours to 40 hours a week full time work when the children reach the ages of 12 or 13 years. The children are currently aged six years and eight years, therefore the plaintiff’s plan was to return to full time work in approximately seven years time. As at 30 June 2013 she had an annual gross income of $38,777.00 and an annual net income of $34,277.00.^[38]The plaintiff submits this is therefore not a case where s 55 of the Civil Liability Act2003(“the Act”) applies. Rather, the court can calculate future economic loss precisely by reference to the plaintiff’s current earnings working 27 hours per week, which allows a calculation of what she would receive if she worked 40 hours per week.  The plaintiff submits the difference between the two amounts can therefore be precisely calculated. The plaintiff submits an award of $86,899.21 is appropriate (loss of $221.50 net per week, deferred 8 years for 16 years).

32. [32]
    Mr Dawson, (for the defendants), submits s 55 of the Act applies when considering an award for future economic loss in the present case. Section 55 of the Act states:

33. [33]
    The defendants submit the effect of s 55 of the Act, which does not alter the common law, is that the Court must assess the probability that:

• The plaintiff would have worked full time when her children reached a certain age;
• Full timework would have been available to her; and
• As a result of the collision, she will not be able to work full time in the future.

34. [34]
    The defendants submit there is no evidence from the plaintiff’s current employer that full-time work would be available to the plaintiff in seven or eight years, and no evidence to support the plaintiff’s submission that she cannot work full time in the future. The defendant submits that, based on the medical evidence and other contingencies, no more than a global award of around $20,000 is appropriate.

Consideration of quantum for future economic loss

35. [35]
    The only evidence of the plaintiff’s income is a schedule of her annual gross and net earnings for the period, 1 July 2007 to “the present”^[39]which is not disputed by the defendants.  The plaintiff’s counsel, in closing submissions, stated he had tendered “the latest pay slip”^[40]which was not, however, tendered at any stage.  Another problem with the plaintiff’s submission is that there is no evidence from the plaintiff’s employer of what her actual income would be if she worked full-time at 40 hours per week.

36. [36]
    I am, therefore, satisfied this is not a case where an award of damages for future loss of earnings is able to be precisely calculated. The evidence falls short in my view of allowing me to “precisely calculate a weekly loss” in terms of the section. I am satisfied that this is a suitable case to make a global award for future economic loss informed by the evidence which I have accepted regarding the Plaintiff’s occupational limitations and prospective financial losses thereby caused.

37. [37]
    Having regard to s 55 of the Act, I may only award damages if satisfied the plaintiff will suffer loss having regard to a number of factors^[41]including the plaintiff’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matter. 

38. [38]
    I am also required to state the assumptions on which the award is based and the methodology used to arrive at the award.^[42]

39. [39]
    In order to determine the appropriate award I have regard to the following matters and assumptions:

• The plaintiff is aged 43.
• I am of the view that the plaintiff was an honest and reliable witness. I am satisfied she did not exaggerate her injury, or her symptoms of pain and discomfort which she reports she suffers during and after her hours of employment and when undertaking housework. I am satisfied she did not report her pain to her employer and did not take days off work because she did not wish to cause problems at work and was not someone likely to complain about such matters to her employer.
• I accept the plaintiff’s evidence that she intended to return to full time work when her children were in high school. I assess that as being in seven to nine years time, given the imprecise nature of the evidence in this regard. Accepting standard retirement age of 67, the plaintiff therefore has 24 years of working life ahead of her. If her return to the full-time workforce was in seven years time, then 17 years is the operative period; if it were in 9 years time, 15 years is the operative period.
• Both orthopaedic surgeons assess the plaintiff as having a 5% whole person impairment which is permanent. The plaintiff is still experiencing significant symptoms two and a half years after the subject accident and there is no suggestion that she will improve greatly from this point.
• It is probable that full time work would be available to her if she remains at the same employer having regard to her lengthy and good work history with the company, and to the company structure which employs both full time and part time staff.
• Even if it were the case for whatever reason, that full-time work was not then available with her current employer, the Plaintiff would have been able, having regard to her skills and experience to seek and obtain similar work in a full time capacity elsewhere.
• It is probable that the plaintiff would have returned to full time work, if she had not suffered the injury, and now will be unlikely to because of the pain and discomfort she suffers from carrying out her work duties.
• The plaintiff continues to suffer pain and discomfort from working 27 hours a week, which she manages by medication, self management and physiotherapy.
• Both doctors agree the more hours she works the more discomfort she will experience. The plaintiff’s work will likely aggravate her symptoms,^[43]albeit she would have the physical capacity to work a 40 hour week. It is, in my view, not unreasonable for the Plaintiff to restrict her hours to accommodate a tolerable level of symptoms.
• Any loss the plaintiff may suffer will not occur until a period of time some seven to nine years into the future; therefore it is unknown what other factors in the future may prevent her returning to full time work irrespective of her injury.
• She may not have worked to full retirement age in any event. She may become more adept at coping with her symptoms and, in spite of her current pessimism, be able to manage increased hours in the future. There are also the usual vicissitudes to consider.

40. [40]
    As previously observed, the evidence regarding the plaintiff’s earnings is imprecise. Working 27 hours a week in the financial year 2012/13 the plaintiff earned $38,777 gross. Assuming the same hourly rate for an additional 13 hours, the plaintiff would earn $57,447 per annum gross. Applying the prevailing income tax rates to this sum,^[44]this reduces the putative, after-tax, annual earnings to $46,506, an increase of some $12,229 per annum on her current salary. This can be further reduced to a net weekly figure of $235.

41. [41]
    A loss of $235 net per week for 15 years (deferred for nine years) (multiplier 358) is a loss in today’s terms of $84,130. A loss of $235 net per week for 17 years (deferred for seven years) (multiplier 429) is a loss in today’s terms of $100,815.

42. [42]
    This of course assumes a 100% certainty that the plaintiff would have graduated to fulltime work when her younger child commenced high school, and a 100% certainty that she will not so graduate. As observed there are a number of contingencies which are operative in this case which must be considered for the purposes of assessing that chance^[45].  As a general proposition, the normal vicissitudes of life demand a not less than 10% reduction^[46]. Here, there are other factors which must be taken into account which I have already referred to. Thus, if one applied an overall discount of 40% to the lower figure I have calculated and an overall discount of 50% to the higher figure, one arrives at a similar outcome, namely a loss in the order of $50,000. This is consistent with the view I have formed that it is more probable than not that the plaintiff will struggle with full time work because of her condition, however it is not a loss that can be a near certainty.  In the end result I assess impairment of earning capacity resulting in future economic loss in the amount of $50,000.

Future superannuation loss

43. [43]
    The rate for this has been agreed at 12%. On $50,000 this yields $6,000.

Future paid care

44. [44]
    The plaintiff claims 2 hours paid care per week for 30 years at $24.00. The defendants submit that a global award of up to $5,000.00 is appropriate for the following reasons:

• The plaintiff’s assistance from others, including her husband, is a matter of choice by the plaintiff’s husband, and not a matter of need on her part;
• Dr Journeaux’s evidence is to the effect that the plaintiff is capable of performing all domestic activities other than repetitive and heavy household chores;
• The plaintiff nominated scores of 9 and 10 for vacuuming, mopping, reaching above her head and lifting groceries on 14 August 2012 to the physiotherapist.

45. [45]
    The defendants referred to a number of decisions of the Supreme Court of Queensland to submit the lack of a separation between services provided to the plaintiff, and services provided to the household renders any assessment difficult, because any assessment must exclude time taken on the provision of domestic services to members of the household other than the complainant.^[47]

Consideration

46. [46]
    The plaintiff’s evidence is that she had difficulty undertaking repetitive chores such as mopping and vacuuming and lifting heavy objects around the house. She suffers pain when she undertakes these duties. She says it takes her approximately 2 hours per week to complete these chores. Dr Gillet considers she is able to undertake all household chores but would continue to suffer pain when doing so. The plaintiff, I accept, has to date sought some assistance from her husband because of pain and discomfort she suffers.

47. [47]
    The assistance is for the benefit of her family in the sense of maintaining a safe and clean family environment. For this reason, it is also for the benefit of the plaintiff. Further, irrespective of whether the plaintiff was living alone or with family members, the household tasks she struggles with must be undertaken, albeit not as often.

48. [48]
    I consider it is likely her husband will continue to assist her with some of the household duties; however it is also likely there will be times when gratuitous assistance will not be available, for example, when her husband travels for work which he does regularly in his role as a sales representative.^[48]I also consider, on the evidence, the plaintiff will remain capable of performing household duties into the future, albeit at a slower rate and with intermittent pain and discomfort. However, for the plaintiff to continue employment at her current level and for her to have some quality of life, I consider it reasonable for her to engage commercial help at the rate of 2 hours per fortnight until she reaches retirement age in 24 years time. Thereafter, the plaintiff will have more time available to attend to the chores and to recover from their completion. One hour per week at $24 per hour for 24 years (multiplier 738) yields $17,712. After further discounting for contingencies (approximately 15%), I allow $15,000 for this head of damage.

Summary of assessment

49. [49]
    I give judgment for the plaintiff in the amount of $83, 971.28.