Ballandis v Swebbs[2014] QDC 129

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This was a trial as to the quantum of the plaintiff’s claim arising from a motor vehicle accident which occurred on 18 May 2010.

2. [2]
   It is common ground that on that date the plaintiff was a passenger in a utility which was being driven along Yeppoon Road, Queensland which rolled over when two lanes merged into one at Ironpot, near Rockhampton. The plaintiff alleges that he suffered a broken nose and injuries to his ribs in that accident. The defendant denies that his ribs were injured at all or to the extent claimed by the plaintiff.

3. [3]
   A subsidiary issue is whether the provisions of the Civil Liability Act 2003 (Q) (“CLA”) apply to this accident.

4. [4]
   In reaching my decision I have had regard to the evidence, the submissions of counsel and the demeanour of the witnesses.

5. [5]
   I also have regard to the fact the plaintiff is to establish his case on the balance of probabilities. With respect to issues of aggravation I note the onus is on the defendant to disentangle the causes of injury (see Purkess v Crittenden (1965) 114 CLR 164).

The evidence

Plaintiff’s evidence

6. [6]
   The plaintiff gave evidence that he was born on 3 July 1987. Exhibit 3 was the notice of claim form delivered by the plaintiff on 4 August 2010 (T1-9). The plaintiff said the accident occurred at the end of the double lanes near Ironpot on the Rockhampton-Yeppoon Road. He was returning from a jobsite in Rockhampton. At the time he was working for Thorpey’s Roofing. He was travelling with two others in Ford Courier ute being driven by Jack Swebbs, who was also a work colleague and employee of Mr Thorpe. They were in the right lane but were cut off, as the lanes merged, by another vehicle and Jack “freaked out” (T1-10). The vehicle was driven off to the side of the road. The plaintiff had a lap seatbelt on and his head head-butted into the dash, which clearly enough caused the broken nose (which is not disputed). The vehicle ended up on a bank against a tree after rolling. The plaintiff lost consciousness for a second. His adrenaline was pumping. He got out of the vehicle as soon as he could. The driver’s side was down on the ground. They got everybody out of the car. The lady who cut them off came back, a tool box was on the road. An ambulance arrived and the plaintiff was placed in the ambulance.

7. [7]
   His nose was the main focal point at the time. His left eye was shut for a week after the accident. The plaintiff said in evidence that he cracked his nose back into place. He was put on a stretcher, placed in a neck brace and his airways were checked. Pain started kicking in and he was given a green pain whistle by the ambulance officers. He was taken to the Rockhampton Base Hospital where he remained for an hour and a-half. His partner Rebecca Garson picked him up. At the hospital his ribs hurt and he was in a lot of pain. He could not breathe (T1-13.5).

8. [8]
   At the time he was living in Yeppoon. He completed year 11 and started working. He initially worked in a surfboard manufacturing company for seven months. He then planted trees for about six months and then he worked as a roofing labourer for Mr Thorpe for about three and a-half years. He had been promised an apprenticeship as a roofer (sheet metal working). The company performed commercial and residential work. After leaving the hospital he felt terrible and went home. He fell asleep. He took Panadeine Forte for a week straight. The next day, his ribs were very sore (T1-15). He worked the next day but could not see out of his eye, but still got through it. He found that he could not pass up the sheets of roofing (T1-15.41). It took about three months before he could lift his left arm above head level (T1-16.1). He also could not breathe that well. He alleges he worked for three days after the accident and his doctor then gave him three weeks off work (T1-16.35). Before the car accident, he suffered an injury to his ribs but was winded only (T1-17.15). X-rays disclose he was just bruised. He fell off a roof about one metre and was back at work the next day (T1-17.39)^[1].

9. [9]
   Turning to the aftermath of the car accident, he was working on a casual basis. There were no restrictions after the first fall. With respect to the events of the car accident, he was picked up by Jack Swebbs for work (T1-18.27). In the ute there were tools, screw guns and screws for work, which they would pick up from Mr Thorpe’s house or Stramit (T1-19.25). He cannot recall if they picked up anything that day. Mr Thorpe provided their tools. Mr Thorpe would call Ricky Wright the night before or early in the morning as to what work they needed to perform that day. Sometimes they would go to Mr Thorpe’s house to get instructions (T1-19.40).

10. [10]
    After the accident he alleged he struggled through work. He took days off here and there. He did not do any laying of roofing but screwing off (T1-20). He continued working for Mr Thorpe’s company for about three months. He says that he and Ricky Wright got “the flick” after his claim was made, but Ricky later started back (T1-20.25). He alleged in the three months he worked he had pain every day which he tried to manage with Panadol.

11. [11]
    He went through a 24-pack of Panadol every fortnight and Panadeine Forte in the first few months at $5 to $6 per packet (T1-20.37). The medications remained pretty much the same since. As to his home life he alleges that in the first month or two he was bedridden, and Rebecca Garson, his partner, was doing everything for him including cooking and cleaning. He alleged that before the accident he cooked and cleaned. After the incident he saw Dr Cooling of the Yeppoon Family Practice. Dr Cooling suggested physiotherapy, but he could not afford this (T1-22.11).

12. [12]
    After working for Mr Thorpe, he was able to get another job as a builder’s labourer for three weeks and then worked for C & C Harris Plasterboard (T1-22.25). He alleged that the injuries affected his employment throughout that time because of pain but he had to push through because of the pain (T1-22.32). He was slower, he alleged, and lacked motivation. Even now, if he consistently lifts he feels it for days (T1-23.7). He says that his ribs were killing him when he worked as a builder’s labourer but kept working. He had problems lifting or holding weight. He was there for three weeks.

13. [13]
    After this, he “bummed around” for a month or so, and then the plastering job at C & C Harris came up. He also alleged that his nose was causing him problems. It was congested, and even now in the witness box he had a running nose (T1-23.45).

14. [14]
    With respect to the employment at C & C Harris, he said it was it was good at first and not as strenuous as roofing. It involved setting plasterboards on walls and ceilings. He alleged he would feel it for days afterwards but pushed through it. He finished this job in March 2013. The reason he finished the job at Harris was because he was not seeing “eye to eye” with the employer (T1-24).

15. [15]
    He then went to Bali for a holiday and came back and obtained a building apprenticeship at Huggos (T1-25.45). It was not as heavy as plastering or roofing. He lasted eight months there, but Huggos went “bust”. Since then, he has been looking for work. He alleged he was still suffering symptoms. He was trying to get out of construction and he wants to avoid heavy lifting and strenuous work (T1-26-T1-27). He was looking at starting in real estate. He alleged that he still had symptoms in his chest and nose. He wanted nose straightened/fixed, but he cannot afford the surgery. He used to worry about his appearance but is not so worried now.

16. [16]
    He also wants to do something about his ribs such as physiotherapy, but cannot afford it. He stopped surfing for about a year because he could not paddle the board out (T1-28.15)^[2]. After a few hours’ surfing, he suffers sharp, shooting pain on the left side and his surfing is still restricted by the injury. He is still using medication. He has also been doing some yoga, which has been helpful.

17. [17]
    He has been seeking employment since early 2014 but it has been very slow in the construction industry. He had some problems with the police in the past for the use of cannabis and has done a drug diversion course.

18. [18]
    In cross-examination he accepted that he fell a couple of days before the motor vehicle accident. He fell eight feet from a landing and fell on scaffolding (T1-31). He went to the Yeppoon Hospital feeling pain on the left side and shoulder feeling cold. He was vomiting. It was a significant event (T1-31.45). He had pain with breathing, shortness of breath and bruising to the left side of the chest (T1-32.5). His pain level was seven or eight out of 10. Dr Cooling arranged for some x-rays. He thought there was a bruised rib. Dr Cooling wanted to admit him overnight but he refused and went home (T1-33.37). He went back to work the next day, but only worked half a day and then saw Dr Cooling at 11 a.m. There was still swelling. He agreed that Dr Cooling gave him a medical certificate that he was unfit for work between 13 May 2010 and 17 May 2010 (T1-34.40). He could return to work on 18 May 2010, which happened to be the day of the motor vehicle accident. On the day he fell off the roof, he worked for eight hours. On 14 May 2010 he worked from 6 a.m. to 11 a.m. and still had pain from his ribs (T1-35.21).

19. [19]
    He said that his claim in this court was for his nose, ribs and thoracic spine. He alleged these conditions were affecting his employment, earning capacity and life.

20. [20]
    He accepted he did not tell Dr Pentis of the fall off the roof fall prior to the motor vehicle accident (T1-36.15)^[3]. He accepted that when he saw Dr Gillett he did not mention the fall (T1-36.46). He did not recall being asked about any previous problems. He could not recall the questions Dr Gillett asked. If he denied there were previous difficulties he accepted this would have been a lie and if he denied the previous accident that also would have been a lie (T1-38.5).

21. [21]
    He accepted he told the Queensland Ambulance Service at the scene of the accident that the pain level was two out of ten. He could not recall whether he complained to the ambulance service about any rib pain (T1-39). He alleged he was given a pain whistle by the ambulance officers and then Mr Wright ran away with it (T1-39-T1-40).

22. [22]
    He alleged he felt pain to his ribs when he got home (T1-40.45). He thought he complained of rib pain to nursing staff but “apparently not” (T1-41.35).

23. [23]
    He thought he complained to Dr Oo about the chest/abdominal pain (T1-42.10). When pressed he accepted he did not complain of any chest/abdomen pain (T1‑44.10).

24. [24]
    He accepted in the week commencing 23 June 2010 he was working with a mate fixing a renovation on his house and worked for one and a half weeks (T1-45.5). He alleged he saw Dr Cooling four to five days after going to the hospital and Dr Cooling told him that he had injured three ribs in the accident (T1-45.20).

25. [25]
    He accepted that whilst he told Dr Pentis after the accident he had shortness of breath and bruising he did not tell the nurse, Dr Oo or the ambulance officers he had any pain from breathing (T1-46). He said that he was pretty confused in his evidence (T1-47.1). He then alleged that he said at the Rockhampton Hospital that his ribs were sore but then could not recall because it was that long ago (T1-47). He then said the car accident made the ribs worse. The matter was adjourned until the next day.

26. [26]
    He alleged that he worked for three days but could not handle it and then saw Dr Cooling. It was put to him that he had not taken three weeks off work as he had previously alleged and he ultimately conceded after looking at Exhibit 2, p 10 et seq that he was wrong (T2-3-T2-6.20).

27. [27]
    Exhibit 5 was copies of messages contained in his Facebook account. On 24 May 2010 it is clear that he went to his best friend’s 21^st. He accepted that he was taking cannabis around the time of the accident (Exhibit 2, p 53 – it indicates he was using cannabis heavily for about a year). In a Facebook entry dated 31 May 2010 he said he had his best night ever yet on the Tuesday he went to see Dr Cooling (T2-10.15). He said he had a great weekend and he had a medical certificate for absence of work from Dr Cooling and alleged earlier that he was practically bed ridden (T2-10.27). The medical certificate from Dr Cooling was between 31 May and 4 June 2010. Again he accepted he had not had three weeks off work as alleged previously (T2-11.17). The only time was between 31 May and 4 June 2010. He then said he did have more than four days off and went to New South Wales for a funeral (T2-12.5). He denied telling Dr Gillett he had four weeks off. Dr Gillett got this wrong (T2‑12.45). He alleged in his evidence there were light duties for three to four months but this was not correct because he had stopped working at the end of June because there was not enough work (T2-13.15).

28. [28]
    He alleged that he could not stand washing up dishes for a month and was physically incapable of doing the washing up but yet on the other hand could go to work because he had to (T2-14.7).

29. [29]
    He was taken again to Facebook entries at pp 69 and 70. He had toothache and attended the Yeppoon Hospital a number of times concerning this (see pp 40, 42 and 44 of Exhibit 2). He first attended the Yeppoon Hospital on 14 June 2010. On no occasion did he allege that he had chest or rib pain but said that he was only there for the toothache to get pain relief (T2-14-T2-15).

30. [30]
    He accepted that he told the triage nurse relative to the tooth on 20 June 2010 (Exhibit 2, p 46) that there was no past medical history noted and nil medication (T2-15.45-T2-16.1). He accepted that on 20 June 2010 he helped a friend rip down walls. Various Facebook entries were put to him which it was alleged were inconsistent with him struggling with injuries (T2-23).

31. [31]
    He accepted he started with C&C Harris in 2011 and worked there for over two years (T2-23). He made no complaint concerning his ribs and chest because he did not want the sack (T2-23.35). He alleged he had time off work “sickies” here and there including “sickies” for the sake of it (T2-24.7). He was on casual rates. He had no light duties at Harris for the entire two years but said that plastering was not heavy although it was strenuous unloading plaster board. He accepted that the job involved holding gyprock sheets to the ceiling while they were being screwed in and he did this for two years (T2-24).

32. [32]
    He alleged that the Bali holiday was a surprise present but contrary to this it was put to him in Exhibit 5, p 32 he knew of the holiday four weeks before he had gone (T2-25.25).

33. [33]
    He accepted that he received about $470.00 net per week from Kris Thorpe but on the other hand $618.00 from Mr Harris. In Exhibit 3 the claim form he claimed he was earning $800.00 gross (Exhibit 3, p 6) (T2-26). The claim was $800.00 and $900.00 gross. He accepted this was not correct and accepted he filled in the form (T2-29.5).

34. [34]
    He accepted he left C&C Harris because of his own choice. He started with Huggos in May 2013 as an apprentice carpenter and was receiving $643.00 net per week (T2-43.11). This employment was terminated in September 2013 as there was not enough work for him to be kept on. He accepted he had done a lot of surfing although then said he was starting to get back into it (T2-43). He alleged he was restricted in his surfing for a year after the accident. But after this he pushed through his pain.

35. [35]
    In re-examination he said that he finished his work at C&C Harris because he was over the job. He accepted he did not have a licence. He accepted that on the claim form his claim for $800 to $900 per week was “shooting a bit high”. He said he made no complaints to Charlie Harris about his ribs because he did not want to get the sack. He said the plaster work was not as heavy as roofing. He did not mention his ribs when he went to be treated for his tooth at the Yeppoon Hospital because he did not see the connection. He did not recall what he told Dr Gillett. His most recent treatment was from Dr Cooling. He advised that he should undergo physiotherapy. With respect to his examination at the Rockhampton Hospital he accepted a stethoscope was placed on his chest and back. After the motor vehicle accident he was in a lot of pain and worried most about his nose.

Dr Pentis, orthopaedic surgeon

36. [36]
    Dr Pentis has provided a report dated 5 October 2011 (see Exhibit 2 pages 1-5). He examined the plaintiff on 3 October 2011. The plaintiff alleged that when he was taken to the Rockhampton Hospital he had shortness of breath and difficulty breathing. At the time of the examination he allegedly found it difficult to push and pull without pain in the left region. He had difficulty sleeping on the left side and he could not bend and twist as well. In conclusion Dr Pentis opined that the plaintiff sustained injuries to his body in the accident. With respect to the rib cage “more than likely fractures and aggravation of the costal articulations of the rib cage on the left side.” Dr Pentis opined these had caused the plaintiff pain and inconvenience and he has been left with residual problems which will affect his work. “It probably won’t cause him to cease it but will give him problems with his work load and he may have to limit it to an extent. He has been left with a residual impairment and it would be assessed as a 10 per cent whole person impairment with respect to his thoracic cage.” (pp4.3)

37. [37]
    In his evidence Dr Pentis corrected his report to say that the previous fall occurred in May 2010 not June 2010 (T2-31.27).

38. [38]
    In cross-examination Dr Pentis accepted that it was important for a claimant to be truthful and accurate because his opinion ultimately was based on this. He thought the complaint of “shortness of breath/difficulty in breathing” after the motor vehicle accident was clinically significant although he said that there was so-called fright theory in which people do not necessarily complain of their injuries (T2-33.5-22). He accepted the hospital notes from the Rockhampton Base Hospital but made no note of any complaint of pain to the ribs (T2-33.40). He accepted that there was no radiological evidence of any fractured rib (T2-33.40). He was critical of the notes in the sense that they did not make sense. With respect to the x-ray dated 17 May 2010 (Exhibit 2, p 35) he may have had fractures at that stage before the motor vehicle accident (T2-35.30).

39. [39]
    He accepted that a presentation of shortness of breath and pain would indicate an injury to the chest (T2-35.42). He agreed that three rib fractures would be more painful than one. A pain level of eight out of ten would be consistent (T2-36.8). If there were such symptoms after the fall from the roof on 13 May 2010 this would be a sign of injury to the ribs. If he denied pain in the chest and abdomen and there were no problems with the pain and breathing this would not be consistent with a rib/chest injury (T2-17). Denial of pain at the hospital would not be consistent and certainly the hospital examination was not consistent (T2-37.7).

40. [40]
    If fractures were caused in the accident, that would cause difficulty in carrying out labouring work. Normally a rib injury should heal which leads to no pain. If he told Dr Gillett he was better, there was a clear improvement in his condition. It was put to him that it was more likely that he suffered injury from the incident of 13 May 2010 and he said inter alia that it was hard to say (T2-38.22). With respect to the examination at the Rockhampton Base Hospital being not consistent with a rib fracture he said that the description of the accident would lead one to the conclusion one would expect more pain everywhere (T2-39).

41. [41]
    He could not answer the proposition that the plaintiff did not suffer an injury on 18 May 2010. He thought there was functional impairment contrary to the proposition put by the defence counsel. He thought it was quite “unfortunate” there were two accidents (T2-40.15).

42. [42]
    In re-examination he said that there can be difficulties without actually having a rib fracture. If there was a major accident such as this he would think there would be more injuries. If for example a person was “high” at the time they might not complain of pain. He also thought it was important that the GP who saw him thought the accident made the chest pain worse and there was a fleck of blood which was usually indicative of a fracture but not necessarily. He also thought that an adrenaline rush can affect a reporting of symptoms. A brief loss of consciousness might also affect such reporting.

Dr Harris, plastic surgeon

43. [43]
    Dr Trevor Harris, a plastic surgeon, has provided a report dated 20 September 2011 (Exhibit 2, p 6). Dr Harris noted that regarding the nose the plaintiff tends to wheeze when he is asleep and there is an increase in mucus production since the injury. The left side tends to block more than the right. He thought (pp3.5):

“There was some obvious deviation of the nose towards the right. The left nasal bone is indented towards the mid-line and there is some irregularity palpable at the junction of the nasal bones with the frontal bone between the eyebrows and in the midline. From the region of the nasal bones downwards towards the tip, this portion of the nose has been displaced towards the right, to the extent of approximately 0.5cm at the tip. Examining within the nose indicates that the nasal septum has been dislocated towards the right in its lower position and towards the left in its more posterior portion. Hence, there was less airway on the left than on the right. There is some persisting pigmentation involving mainly the lower lids on both sides. This most likely has resulted from retained blood pigments in the dermis, which should gradually resolve next year or so. … [pp4.7] There is permanent impairment relating to his nasal displacement. There is evidence of nasal injury with deviation of the nose towards the right and dislocation of the nasal septum, resulting in some nasal obstruction with an obvious cosmetic deformity relating to his external nasal skeleton.

[6] Using AMA guidelines to the evaluation of permanent impairment, 5^th ed, table 11-5, Class 2, my estimate of the impairment of the whole person is 7 per cent. There is facial abnormality, with distortion of the nasal skeleton and septum and depressed left nasal bone. This has resulted in some displacement of the nose to the right side and some degree of nasal obstruction. This impairment is calculated according to the above reference in AMA 5 and is placed towards the lower end on this particular class … [pp5.5] His nasal deformity could be overcome by a septorhinoplasty. This would involve a total rhinoplasty, with osteotomy to the nasal bones and manipulation to the normal anatomical situation. At the same time a septoplasty could be performed to overcome his nasal obstruction and the displacement of the septum. Such a procedure is not essential, and will be one of choice in relation to the appearance and/or symptoms. If a procedure were performed the approximate costs would include:

Surgical fee up to $5,000

Anaesthetic fee up to $2,000

Hospital fees up to $3,000

He would require up to 10 days off work following this procedure. If the operation was successful this should produce near anatomical correction to restore his nasal skeleton to the midline and overcome the dislocation of the nasal septum. Such a procedure should overcome his disfigurement and reduce his whole person impairment by several percent.

[10] It is unlikely that he will require ongoing use of medication.

[11] I do not consider that the injury to his nose has affected his day to day work ability now, nor is it likely in the future. He does require separate assessment of the rib injury.”

44. [44]
    Dr Harris in cross-examination thought that the relevant costs have increased to a total of $15,000 ($7,500 for the surgical fee; $2,500 for the anaesthetic fee and $5,000 for the hospital fee) (T2-19). He accepted that the AMA recommended fees were $4,310 for the surgeon’s fee, $2,500 for the anaesthetic’s fee and $1,500 for the hospital fees; a total of $10,000 (T2-20). On the other hand he accepted that it was unusual for AMA guide fees to be charged. A public operation would involve a long waiting list.

Dr Cooling, general practitioner

45. [45]
    Dr Cooling gave evidence that he was the plaintiff’s general practitioner. He said that on 13 May 2010 he saw the plaintiff concerning injuries to his left side. An x-ray was ordered and he was treated with analgesia. He was reviewed on 14 May 2010 (T2-61).

46. [46]
    The next appointment he had was on 1 June 2010. He prepared a medical certificate as to fractured nose and left chest injury. He accepted the plaintiff had difficulty breathing (T2-61).

47. [47]
    Regarding the chest wall on 1 June 2010 it was tender. The underlying lung sounded normal. Treatment involved Panadeine Forte and ibuprofen tablets (T2‑62).

48. [48]
    The last appointment he had concerning this was on 10 August 2010 at which time the plaintiff still had rib pain and was prescribed Panadeine Forte (T2-62.30).

49. [49]
    In cross-examination the doctor conceded that after the fall from the roof the plaintiff had a sore left chest and shortness of breath. One gets both of those with rib fractures (T2-63.36). He arranged an x-ray concerning this. On 14 May 2010 the plaintiff still had some symptoms consistent with a rib fracture. A workers’ compensation certificate was given (Exhibit 2, p 98) for absence from work until 17 May 2010. The doctor conceded that if there was no complaint of pain to the ribs or chest at the time of the motor vehicle accident this was not consistent with such an injury. Additionally if there was no such complaint at the Rockhampton Base Hospital this was not consistent with such an injury. If when examined by the Senior Medical Officer of the Rockhampton based hospital there was no complaint of chest or abdomen pain. This was not consistent with a rib/chest injury (T2-65).

50. [50]
    If there was a fracture to the ribs he would have expected a complaint (T2-65.40). If no complaint was made this means that it was not consistent with a rib fracture/injury to the chest (T2-65.45). He accepted that the examination on 1 June 2010 which indicated tenderness on the left side was a subjective complaint (T2‑66.7). He accepted he would need to rely on the truthfulness and accuracy of what he was told to reach a conclusion. He accepted that the examination on 10 August 2010 still involved subjective symptoms.

51. [51]
    At no stage did he make a note that he had recommended or referred the plaintiff to physiotherapy and he normally would record this (T2-67). He cannot recall telling the plaintiff he had three fractured ribs. He accepted that before 1 June 2010 the plaintiff could socialise. With reference to Exhibit 2, p 101 he accepted the only time he certified him as unfit for work after the motor vehicle accident was between 31 May 2010 and 4 June 2010. He never certified the plaintiff as being unfit for three weeks (T2-68.20). Similarly on 10 August 2010 he provided a certificate stating the plaintiff was fit to resume work on 4 June 2010. He was uncertain if the plaintiff reinjured his rib or suffered injuries in the car accident (T2-69.2). He accepted in re-examination that a high speed car accident could have caused more injury to the chest wall but accepted on 1 June 2010 there was no bruising to the chest wall (T2-69.5).

Rebecca Garson

52. [52]
    Ms Garson gave evidence that she was in a relationship with the plaintiff for four years which finished in October 2013 (T2-70.32). In 2010 they lived in Yeppoon with Ricky Wright. The plaintiff was working for Kris Thorpe in 2010. He was injured in May 2010. He suffered back and neck pain in a fall at work and then suffered fractures to the ribs and a broken nose in a car accident. Ms Garson gave evidence that after the fall he was not as helpful around the house and was in pain. After the car accident he was not mobile at all and could not do much around the house (T2-71.27). After the accident it was hard for him. She did most of the work around the house because of this including washing, cleaning and walking the dogs, cooking and cleaning. She also drove to doctor’s appointments (T2-71.40). After the motor vehicle accident he was prescribed Nurofen and another drug with codeine. There was also Panadeine Forte but she alleged it was not prescribed after the fall (T2-72.11)^[4]. She alleged he could not surf and tried to get back into it. He was in too much pain after the motor vehicle accident.

53. [53]
    Concerning his attendance at work he would often be picked up by Jack in the ute or Jack would drive to the ute and the ute would be taken from there. Sometimes she would take him to work. This continued after the accident. He was a clean person before the accident but after it she did most of the cleaning (T2-72.45). She estimates that she did one hour per day for at least a month. After the month he tried to do simple things and for about two months she performed such duties for 30 minutes to three quarters of an hour per day which reduced slowly over time when he would get back into it. Apart from surfing he would take the dogs to the beach. After the accident when she picked him up he was in a lot of pain. He was bruised and battered in the face and complained of pain in the side (T2-74.17). He was bruised on the side as well and was bruised on the arms. He was not like this before the accident (T2-74.30). Also after the accident she used to pick him up from work half way through the day because of his pain.

54. [54]
    In cross-examination she accepted that the fall from the roof on 13 May 2010 was significant (T2-75.25). His father took him to the hospital. She said she “supposed” he had no bruises before the motor vehicle accident “but, I mean, I-I think it was only a couple of days apart so…” (T2-75.37).

55. [55]
    She alleged that he did not complain as much about the pain after the fall as compared as to after the car accident. She alleged she noticed the bruising after the motor vehicle accident but no abrasions or bruising before then (T2-76.11)^[5]. However she conceded that she did not recall an abrasion to his chest after the fall she could not be sure (T2-76.22). She confirmed her evidence that she would pick him up after half day’s of work after the accident.

56. [56]
    Concerning the fall from the roof he saw the doctor the next day and was still in pain. She was cross-examined at length about the services she provided but she said that he continued to work because they needed the money. She said that his work with Thorpe finished because of a lack of work. She was not mistaken as to the rib pain relating to the period before the motor vehicle accident or afterwards. She did not know too much about the fall from the roof.

57. [57]
    I gained the impression Ms Garson was confused in her evidence as to events after the motor accident or after the fall.

Jack Swebbs

58. [58]
    This witness gave evidence that he was the driver of the car at the time of the accident (T2-51).

59. [59]
    He initially said that the car was never parked outside Mr Thorpe’s house, but this appears to have been contrary to a statutory declaration he earlier provided.

60. [60]
    I formed the view he was not desirous of telling the truth and permitted Mr Green to cross-examine him. The statutory declaration was tendered as exhibit 6.

61. [61]
    He accepted that on the occasion of the accident they were driving back to the plaintiff’s unit (T2-57.46).

The defendant’s case

Geoffrey Thompson

62. [62]
    Geoffrey Thompson from the ambulance service gave evidence that he had no independent recollection of the incident. He prepared the notes which are contained at p 76 et seq of Exhibit 2. He said that no medication was given to the plaintiff and if it was, it would be noted in the “management reassessment section” (T2-91.5 and Exhibit 2 pp80). He said that if there were complaints about chest or rib pain it would have been documented (T2-91.30).

63. [63]
    In this case the Glasgow Coma score was 15 and there was no complaint of chest or rib pain (T2-91.40). There was no suggestion that the whistle had been prescribed to him. He had no recollection of the whistle being taken off him by another person. There was no struggling by him to breathe and he listened to the top and sides of the chest. It was clear and there was equal expansion (T2-93-T2-94).

64. [64]
    In cross-examination he accepted he had no recollection of the incident.

65. [65]
    He accepted that with respect to the speeds he potentially clicked the wrong box so there was a chance of error. He accepted that pain is very subjective.

Robert Peach (T2-99)

66. [66]
    Mr Peach the other ambulance officer also gave evidence. He did not recall the incident and the notes were not his. Again he confirmed that if medication had been given to the plaintiff it would have recorded in the management and reassessment section. He could not recall whether a green whistle had been given to the plaintiff and it was possible for it not to be recorded.

Ricky Wright (T2-104)

67. [67]
    Mr Ricky Wright gave evidence that on the day of the accident Jack drove the ute from the unit where he and the plaintiff were living to the job sites.

68. [68]
    They were heading home that afternoon (T2-106.25). He had no recollection of taking the pain whistle from the plaintiff (T2-107).

69. [69]
    In cross-examination, the witness conceded work equipment was kept in the ute. He did not recall the plaintiff having any difficulties with work after the accident (T2-114.20). The plaintiff did have black marks under his eyes (T2-114.22).

Kris Thorpe

70. [70]
    He gave evidence that he was the plaintiff’s employer at the time of the accident.

71. [71]
    The ute was at Mr Wright’s house on the morning of the accident (T2-119.17). The ute was bought so that Mr Wright could get to work. He also gave evidence the plaintiff’s employment finished at work because it “got quiet” (T2-121.25).

72. [72]
    He was not aware of any difficulties the plaintiff had after the accident aside from his nose (T2-122.30).

73. [73]
    In cross-examination he conceded he claimed depreciation for the vehicle in his tax returns. He in effect said that the plaintiff was unreliable (T2-128.15).

Dr Gillett, orthopaedic surgeon

74. [74]
    Dr Greg Gillett, in his report dated 19 April 2012 (Exhibit 2 page 12), says that he examined the plaintiff on 19 April 2012. The plaintiff alleged he was transported to the Rockhampton Hospital, where he was assisted with his injuries being a fractured nose and a left-sided chest injury associated with a rib fracture. He was assessed at the hospital and then allowed home. His ribs were sore for a period of time after the accident, but he had problems sleeping. He gradually improved but still had residual problems with the ribs. He had a lot of discomfort in the left side of his chest while completing physical tasks in the first eight months, up to 12 months. With respect to the nose, he self-reduced it at the time of the adrenalin rush after the accident but it had been left with some stiffness. He alleged he was off work for four weeks and returned to work for three to four months on light duties, and full time duties as a roofer until May 2011 when he changed to being a plasterer. This was much better, although he still gets pain in the left chest wall when lifting plaster. He was back to surfing, although still got some pain when paddling. He could not sleep on his left side for a long time, but that is better now. He denied any previous symptoms or problems associated with the chest injury and did not divulge the fall from the roof. He does not require any assistance now, but did require assistance for about three to four months.

75. [75]
    Dr Gillett formed the opinion the chest injury related to the fall from the roof (pp15 [5]). He thought there was a discrepancy in relation to the history. Using the AMA 5 methodology regarding the ribs, he thought that the pain and discomfort associated with the rib injury was consistent with a rib injury up to the present time but there was no measured impairment under AMA 5. He believes the ribs related to the fall.

76. [76]
    Viewing the Rockhampton records, there appeared to be no injury involving the chest from the accident. The description of the impact on work is consistent with a chest wall injury.

77. [77]
    In cross-examination the doctor conceded that he was provided the notice of claim (Exhibit 3) when he saw the plaintiff (T3-3). This document did disclose the fall from the roof. He assumed the fall off the roof was from about 10 feet. He accepted the fall hurt the plaintiff’s ribs. He accepted that both the fall from the roof and the motor vehicle accident were consistent with a chest wall injury. If he fell onto a beam from the roof, this would have the same effect as a longer distance fall. He accepted that the history of the motor vehicle accident showed a significant force and speed (T3-4). This can involve more force than falling off a roof. He agreed that the symptoms were consistent with a chest wall injury and agreed that the fall issue had been disclosed to Dr Harris but not to Dr Pentis (T3-5.5). He specifically told Dr Gillett there were no chest problems before the motor vehicle accident. With respect to such a chest injury, most people have such symptoms for a short period of time and they recover, although some do not (T3-5.37). His symptoms were consistent with an ongoing symptomatology. He found no impairment. Under the AMA 5 under Chapter 18, it is between 0 and 3%. The plaintiff told him that he is returning to surfing and found plastering manageable.

78. [78]
    The plaintiff told Dr Gillett that there was some pain in working but that he was getting better. He agreed that heavier duties might cause an aggravation (T3-7.20). Dr Gillett was of the opinion that the injury happened before the motor vehicle accident. He noted that the contemporaneous records did not mention the chest wall. In his view, if the chest wall injury had been exacerbated it would have been acutely painful and he would have mentioned this (T3-7.45). He would also have expected the emergency department to have inspected the chest wall. With respect to the injury described on 14 May 2010, he expected this would have been seen on 18 May 2010. He again repeated that if the chest was injured in the car accident, one would have expected awareness of pain in the chest.

79. [79]
    The fleck of blood seen on 1 June 2010 was consistent with a nose fracture or a chest injury (T3-11.27). The motor vehicle accident may have contributed to his pain. On the balance of probabilities, the chest symptoms were due to the fall; the motor vehicle accident may have aggravated it but the injury occurred previously. It is more likely than not that on the hospital records, if they are correct, the chest injury occurred during the fall (T3-12.5).

80. [80]
    In re-examination, Dr Gillett confirmed that if the chest wall was injured, one would expect a complaint to the Queensland Ambulance Service and to the nurse (T3-13.5). The symptoms would have had some effect on his earning capacity (T3-14).

Charles Harris (T3-16)

81. [81]
    Charles Harris, the owner of C & C Harris Plasterboards, gave evidence that he knew the plaintiff as his employer. The plaintiff started working for him in May 2011. He worked for almost two years. The plaintiff undertook semi‑skilled labouring work including sheeting, gyprock walls and ceilings. He would see the plaintiff every day as he would deliver materials to the jobsites. The plaintiff would help unload the truck. He had no difficulty performing this task. The plaintiff was a good worker (T3-16.45). The plaintiff, however, did have a lot of time off- namely 70 days in over 400. He would ring up sick but never had a medical certificate. The plaintiff went to Bali and Mr Harris had no notice of this. The plaintiff alleged he had told Mr Harris, which he did not recall.

82. [82]
    If the plaintiff left work early because of pain, he would speak to the foreman about this. Mr Harris was never informed that the plaintiff was in pain. The plaintiff finished work in April 2013. He finished work when another employee, upon whom he relied for a lift to go to work, went to the UK. The plaintiff simply did not show up after that. He said that the work could be physically demanding. The usual gyprock sheet weighs about 25 kilograms and they are unloaded and stacked on the floor (T3-18.35). On one occasion, when the plaintiff was absent from work, he was told he was surfing.

83. [83]
    In cross-examination Mr Harris said that a person would walk about 15 to 20 metres with the sheets of gyprock when being unloaded. There was a crew of three to four men on a jobsite. The 6m sheets were 50 kilograms each and if windy would need two to three people to handle. He accepted the plaintiff was eager to please and did not want to disappoint. Initially the plaintiff had his own vehicle. The plaintiff worked casually. Mr Harris conceded he did not bother asking for medical certificates. He accepted the plaintiff was a good worker. He accepted it took three men to put a ceiling sheet up.

84. [84]
    In re-examination Mr Harris confirmed the plaintiff was a good worker. He described how one rotated a sheet above the head to screw it in. Mr Ballandis did this without any problems.

Harold Tonkin (T3-24)

85. [85]
    Harold Tonkin, who was the plaintiff’s supervisor at C & C Harris, gave evidence that he knew the plaintiff through work. He first met the plaintiff at work halfway through 2011. He supervised him. He never saw the plaintiff have any problems carrying out his duties. The work involved sheeting ceilings as well. The plaintiff was a good worker.

86. [86]
    In cross-examination Mr Tonkin said there was a crew of 11 people. He accepted there were different types of plasterboard including fire safety sheets which were heavier, which tired workers out. He did not recall Chris clutching at his side. He accepted that at time the plaintiff may have asked to leave half an hour early but he did not give the excuse that he was sore. The plaintiff never complained about pain in his ribs. He accepted that the plaintiff was eager to please and was a good worker. He never asked him if he had problems with his work. He did not know anything was wrong with the plaintiff.

87. [87]
    In re-examination the witness conceded the plaintiff chipped in as part of a team. The job involved putting gyprock on walls. Although he did not work with the plaintiff all of the time, he was on the same team 70% of the time.

Other Evidence

Exhibit 2

88. [88]
    There are some important documents to be considered in Exhibit 2. Firstly Dr Cooling’s notes reveal that on 14 May 2010 he saw the plaintiff at 12.43 pm. The plaintiff had less pain a.m. breathing OK (Exhibit 2, pg 94). There was an abrasion and swelling in the left lower rib. There was tenderness.

89. [89]
    Written notes from the Yeppoon Hospital dated 13 May 2010 (Exhibit 2, p 31) indicate the plaintiff was prescribed Panadeine Forte. The emergency flow sheet for 13 May 2010 (Exhibit 2, p 28) indicated that the plaintiff fell off the roof, had pain in his left side and back and shoulder. He felt cold and vomited. A further entry for 14 May 2010 (p 32) indicates that he had left shoulder/chest pain. He was not knocked out and initially had a sore left chest and later increased pain from the shoulder. It was tender and there was an abrasion on the left side. A chest x-ray was conducted. The chest x-ray dated 13 May 2010 (Exhibit 2, p 35) indicates that there were no rib fractures seen but “rib fractures can be radiologically initially invisible”.

90. [90]
    Despite advice he discharged himself (Exhibit 2, p 37). Exhibit 2, p 98 is a workers’ compensation medical certificate for absence from work between 13 May 2010 and 17 May 2010 by reason of a left chest wall injury because of falling off the roof.

91. [91]
    Turning then to the records relative to the motor vehicle accident the Queensland Ambulance records (p 76, Exhibit 2 et seq) indicate that the only complained of injury was nose pain. There was no other complaint of injury. Certainly no complaint of chest or rib pain and his pain level was 2 out of 10 (p 79). There was also no record of a pain whistle being administered to him.

92. [92]
    The nurse triage notes (p 82) make mention of the nose hitting the dashboard but no loss of consciousness and no pain sensation other than on the nose. Turning to the medical notes of Dr Oo (p74-75), there was “no chest or abdominal pain”. The lungs were clear and on examination there were no injuries of the abdomen, it was soft and there was no tenderness. The only complaint appears to be the painful nose.

93. [93]
    The plaintiff did not see any doctor after his discharge from the Rockhampton Hospital until 1 June 2010. In the note of this examination Dr Cooling noted “recurrence of pain in the ribs - aggravation of chest wall injury” (Exhibit 2 pp 94).

94. [94]
    In the medical certificate dated 1 June 2010 (Exhibit 2 pp101) Dr Cooling noted there was a chest wall injury and the cause was “fall off scaffold 14/5/10 MVA 15/10→ aggravation of rib injury.”

95. [95]
    To my mind, these records are very important in the determination of this matter.

Exhibit 5 - Facebook entries

96. [96]
    I have considered the contents of Exhibit 5.

97. [97]
    Overall they do show that the plaintiff was very keen on surfing. He also did not seem to complain of any rib injury.

Submissions as to the CLA

Plaintiff’s submissions

98. [98]
    The plaintiff firstly submits that the provisions of the CLA do not apply. The plaintiff submits that this is a case where there was an entitlement to compensation under the Workers' Compensation and Rehabilitation Act 2003 (Q) (“WCRA”). He submits that critical factors to be examined on whether there was a journey from the workplace to home are:

• there was no workplace;
• the workers drove from the meeting point to worksites at the instruction and direction of the employer;
• the vehicle was supplied by the employer;
• the vehicle transported other workers, tools and equipment;
• the vehicle was kept at different locations overnight;
• the vehicle was only used for the purpose of work where the permission of the employer was obtained;
• the vehicle was registered in the employer’s name, owner by him and depreciated in his taxation affairs.

99. [99]
    It is therefore submitted that CLA does not apply.

Defendant’s submissions

100. [100]
     The defendant, on the other hand, submits that CLA does apply because simply described the plaintiff was travelling home immediately prior to the accident. If they were travelling home, then it is submitted that s35(1)(a) of the WCRA applied. It is submitted that:

• the plaintiff’s own application for workers’ compensation dated 4 August 2010 considered he was travelling on a journey to or from work (Exhibit 2 pp17 - statutory bodies section);
• the evidence of Kris Thorpe was clear that on the morning of the accident the ute was not parked at his house. This was not challenged;
• the evidence of Mr Wright supported a finding that the accident occurred on a journey between work and home;
• the plaintiff gave evidence he could not remember where the ute was parked on the morning of the accident, and if it was parked there they would have been travelling home at the time of the accident;
• he later conceded under cross-examination he was travelling home at the time of the accident;
• the only evidence the ute was parked at Kris Thorpe’s on the day of the accident is contained in the statutory declaration of Jack Swebbs (Exhibit 6) but it is submitted his evidence is unreliable.

Findings on the Civil Liability Act point

101. [101]
     Section 5(1)(b) of the CLA provides:

“(1) This Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes—

…

2. (b)
   an injury for which compensation is payable under the Workers' Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies.”

102. [102]
     Section 35(1)(a) of the WCRA provides:

“(1) An injury to a worker is also taken to arise out of, or in the course of, the worker's employment if the event happens while the worker—

1. (a)
   is on a journey between the worker's home and place of employment.”

103. [103]
     There is the case of Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48, although to my mind that case is not overly relevant because as a result of that decision amendments were made to the legislation. In Clement v Backo & Anor [2006] QSC 129^[6] it was held at [39]:

“Once the workers cease their physical activities, get into the vehicle in which they are to be driven home, leave the place where they had carried out their activities and drive in the direction of home, it seems to me to be unrealistic to say they have not left the place of employment or commenced the homeward journey.”

104. [104]
     In Clement’s case the defendant, the driver, said that he was driving four other employees of United Group Resources. The group worked at the Ensham Coal Mine. The vehicle had not left the Ensham property at the time of the accident. Dutney J noted that s35(3) provides that a journey to or from a worker’s home starts or ends at the boundary of the land on which the home is situated. Dutney J disagreed with the submission by the plaintiff that a homeward journey should not be deemed to have commenced until the vehicle leaves the boundaries of the land where the employment is carried out. He was satisfied the claim was governed by the principles of the CLA.

105. [105]
     In this case, despite the able arguments of Mr Green, it is my respectful opinion that the evidence overwhelmingly points to the fact that the vehicle was returning to the unit at which Mr Wright, Ms Garson and the plaintiff resided, not the least of which is in the plaintiff’s application for worker’s compensation (Ex 2 p 17). Accepting that a work vehicle was left at the unit and it was owned by Mr Thorpe, in my opinion these facts do not surmount the clear provisions of the WCRA. It is my view that the defendant’s submission should be accepted on this point and the provisions of the CLA apply, and in that light I will examine the submissions of both parties.

106. [106]
     In case it is thought that the provision is ambiguous (s 14B of the Acts Interpretation Act 1954 (Q)), I am strengthened in that view by the explanatory memorandum to the CLA Bill where at p5 it was said:

“The exception of those injuries identified by sections 36(c) and 37 from the exclusion will result in liability for those injuries in which employment is less likely to be a significant factor being decided in accordance with the law as modified by the Act.”

107. [107]
     It seems to me that in this case, employment was not a significant factor in the occasioning of the injuries here.

108. [108]
     I note that Reprint 2C of the CLA was in force as at March 2010 and Reprint 4A of the WCRA was in force as at the date of the accident. I cannot see any difference between those provisions and the provisions of the present legislation. Counsel did not contend otherwise.

Submissions as to the nature of the injuries

Plaintiff’s submissions

109. [109]
     The plaintiff submits:

1. (a)
   the court should assess damages by reference to both the ribcage injury and the nasal injury;

2. (b)
   Ms Garson strongly supported the plaintiff’s evidence as to symptomatology relating to the ribs following the motor vehicle accident;

3. (c)
   the failure to have his symptoms recorded at the hospital immediately after the accident is explicable on the basis of the adrenalin rush experienced by Mr Ballandis after the accident;

4. (d)
   the swelling in the ribcage noted by Dr Harris some 16 months post‑accident is consistent with the injury sustained in the fall, resolving within a day and then it reoccurring;

5. (e)
   the fall from the roof was not from great height and involved less force than the rollover accident;

6. (f)
   Dr Cooling treated Mr Ballandis for fractured ribs or at least an aggravation of such injury; and

7. (g)
   the x-rays are of little assistance as in the view of Dr Pentis the real problem are the costal joints and margins.

110. [110]
     In oral submissions the plaintiff submitted:

1. (a)
   more weight should be attached to the evidence of the plaintiff and Ms Garson than on the medical records of the ambulance and the Rockhampton Hospital;

2. (b)
   the plaintiff’s evidence was supported by Ms Garson;

3. (c)
   it was understandable why the plaintiff would not tell Mr Harris or Tonkin of his injuries;

4. (d)
   it was explicable why he would not complain of his injuries when being treated for a tooth at the Yeppoon Hospital;

5. (e)
   there were inconsistencies in the ambulance notes – for example, they applied a cervical collar when the neck was fine, the speeds were different;

6. (f)
   Dr Gillett conceded the possibility of an aggravation;

7. (g)
   when he attended the Yeppoon Hospital after the fall, there was no evidence of bad bruising which was consistent with Ms Garson’s evidence, and further on 14 May 2010 the notes reveal that the injury was significantly improving;

8. (h)
   contrary to the defendant’s submissions, Ms Garson was not as confused as alleged and came back to her initial position;

1. (i)
   the evidence between them is consistent and one should believe the plaintiff.

Defendant’s submissions

111. [111]
     The defendant submitted that the plaintiff could not prove that any rib injury occurred during the motor vehicle accident. He submitted:

1. (a)
   the records relating to the fall from the roof on 13 May show it was a significant fall. The Yeppoon Hospital rural emergency flowsheet (Exhibit 2) show that there was a fall off the roof from 8’ landing on scaffolding. There was pain on the left side back and shoulder, he felt cold and vomited;

2. (b)
   Dr Cooling agreed in cross-examination the symptoms were consistent with a possible rib fracture;

3. (c)
   the plaintiff was absent from work following the fall from the roof. He only worked a total of eight hours on the week ending 16 May 2010;

4. (d)
   there was no complaint as to any chest injury to the Queensland Ambulance Service;

5. (e)
   there was no complaint to Dr Oo at the Rockhampton Hospital of any chest or abdominal pain, and indeed on examination no injury was noted;

6. (f)
   all medical experts accepted that the plaintiff’s presentation to the ambulance, the triage nurse and Dr Oo is inconsistent with having suffered any injuries to his rib or chest wall in the motor vehicle accident;

7. (g)
   Rebecca Garson’s evidence is not consistent with these histories, and it is relevant she failed to notice any bruising to the plaintiff’s chest wall following the fall from the roof, and she expressed some confusion and inconsistency in her evidence;

8. (h)
   following the motor vehicle accident, the plaintiff returned to work for a total of 39 hours that week, and a total of 27 hours the following week. He was absent from work during the week of 31 May 2010 but returned to work the following week;

1. (i)
   the first mention of any connection between the motor vehicle accident and the rib injury was on 1 June 2010 when he saw Dr Cooling;

10. (j)
    the social media material (Exhibit 5) showed an absence of complaints of rib or chest injury and show a person who is capable of returning to his normal duties and socialising;

11. (k)
    Pentis was advised by the plaintiff that he presented at the Rockhampton Hospital with shortness of breath and difficulty breathing, which was not consistent with the other records;

12. (l)
    the plaintiff could not prove that any rib injury was related to the motor vehicle accident;

13. (m)
    the plaintiff should not be accepted. He had been less than truthful in what he had told medical practitioners. More particularly, he lied to Dr Gillett when he denied previous symptoms or problems associated with his left chest prior to the motor vehicle accident. He was also less than truthful when he told Dr Gillett he was unable to surf when his social media postings indicate he was surfing regularly after the motor vehicle accident.

Findings as to the incident

112. [112]
     In my view it cannot be proved by the plaintiff on the balance of probabilities that any definitive injury occurred to the chest wall or thoracic area as a result of the motor vehicle accident. The reasons for my findings are as follows:

1. (a)
   I do not accept all of the plaintiff’s evidence and all of Ms Garson’s evidence. As to Ms Garson, I found that she was confused between the two accidents.

2. (b)
   As to the plaintiff’s evidence, in my view he was clearly surfing at an earlier time than that which he alleged to Dr Gillett in his evidence (see Exhibit 5).

3. (c)
   Important to my mind is the absence of complaint to the Queensland Ambulance Service (Exhibit 2 pp76-81), the triage nurse (Exhibit 2 pp 73 and 82) and the Rockhampton Hospital (Exhibit 2 pp74-75). The evidence in these documents was admitted unconditionally. It is evidence of the truth of its contents. If less weight was to be accorded to any one document because the author was not called, in combination they do corroborate each other. In my view, if a definitive injury had occurred during the motor vehicle accident, then it is likely it would have been mentioned.

4. (d)
   The plaintiff did not take three weeks off work as he alleged.

5. (e)
   I found him to be an unreliable historian. He did not disclose the roof fall to Dr Gillett. I would be hesitant acting on his evidence alone except where supported.

113. [113]
     I note the plaintiff did not attend a doctor concerning his rib injury until 1 June 2010, unlike his attending the doctor immediately after the fall from work.

114. [114]
     I also consider the rib/chest injury was sustained in the fall. The injury there was more serious as:

1. (a)
   The Yeppoon Hospital record (Exhibit 2 pp28) noted the plaintiff felt cold and vomited. He was prescribed panadeine forte.

2. (b)
   The note of 14 May 2010 noted he had left shoulder and chest pain. He had shortness of breath. The left side was tender and there was an abrasion (Exhibit 2 pp32). X-rays were taken (Exhibit 2 pp35).

115. [115]
     These records are to be contrasted with the records immediately after the motor vehicle accident. I note Dr Cooling did not order further x-rays.

116. [116]
     I accept that adrenaline and “fright” might affect realisation of pain but this does not adequately explain absence of pain on 3 occasions, if a separate and significant injury occurred to the chest/ribs. I appreciate though that with a muscle aggravation this can become worse the next day after a strain the previous day. Anyone who plays sport would know this.

117. [117]
     I accept Dr Pentis’ evidence and Dr Gillett’s evidence that this was a significant accident. In the accident the plaintiff was wearing a seatbelt and there is no evidence that his chest came into contact with any part of the vehicle.

118. [118]
     However the vehicle rolled and it is probable, in my opinion, that there was some aggravation to the condition initially sustained in the fall because of the forces involved, but to my mind it is probable any aggravation would have been limited to about 8 months post-accident^[7].

119. [119]
     I rely on the following evidence to support this conclusion:

1. (a)
   Dr Pentis thought it was a forceful accident (T2-36.42).

2. (b)
   Dr Pentis thought there was some contribution from both events (T2-38.25).

3. (c)
   He expected a person to have pain everywhere after such a crash (T2-38.35). It would make it worse (T2-38.41).

4. (d)
   Dr Gillett noted that the plaintiff said he had a lot of discomfort for the first 8 months (Exhibit 2 pp 2.5).

5. (e)
   Dr Gillett thought there was fairly significant force involved with the motor vehicle collision (T3-4.20).

6. (f)
   He expected most people with these symptoms had them resolve over a short period of time (T3-5.37).

7. (g)
   He accepted that the road accident could cause a chest injury (T3-8.30). He “could not correlate whether it’s the road traffic accident or the fall.” (T3-8.42)

8. (h)
   The note of recurrence of pain in the ribs suggests the motor vehicle accident contributed to pain (T3-11.40).

1. (i)
   He accepted the motor vehicle accident may have aggravated the injury from the fall (T3-12.5).

10. (j)
    Dr Cooling examined the plaintiff on 1 June 2010 when he was tender in the chest (T2-62.3).

11. (k)
    Dr Cooling in the records on 1 June 2010 noted there was a recurrence of chest pain after the motor vehicle accident- an aggravation (Exhibit 2 page 94).

12. (l)
    Dr Cooling in the workcover certificate dated 1 June 2010 noted that the cause of the injury was the fall and the motor vehicle accident aggravated it (Exhibit 2 page 101.)

13. (m)
    I accept that part of Ms Garson’s evidence that there was pain for the first few months (T2-73).

14. (n)
    There is also evidence of medical appointments where he complained of chest pain on 10 August 2010 (Ex 2 pp 93); and 16 September 2010 (Exhibit 2 pp 93).

120. [120]
     Otherwise insofar as there is any conflict between the evidence of Dr Pentis and Dr Gillett I prefer the evidence of Dr Gillett. I thought him more convincing. He did leave open the fact an aggravation occurred. This seems to have been Dr Cooling’s opinion in the notes of 1 June 2010 and in the medical certificate. I accept this.

121. [121]
     I accept Dr Gillett’s opinion there is no impairment relative to the motor vehicle accident.

122. [122]
     Whilst the plaintiff did not complain of rib pain at the time of his hospital visits concerning the tooth I can understand this as he was not presenting for rib pain and he may well have finished his medication at the time.

123. [123]
     As to the swelling observed by Dr Harris in my judgment this did not relate to the motor vehicle accident.

124. [124]
     I am not overly troubled by the fact he helped a friend out with some renovations. He could still have done this even though he was in pain. As noted earlier doctor’s visits after this noted he was in pain.

125. [125]
     I am also not overly troubled by the fact the plaintiff surfed during the eight months. I have determined, on my reading of Exhibit 5, he surfed only a few times in that period i.e. October 2010, November 2010 and February 2011 (see pp 58, 59, 62, 63). His surfing was far more regular after this which is consistent with an improvement in his condition after the eight months. He explained he was in pain after he surfed which I find happened in the eight month period.

126. [126]
     I also accept the evidence of Mr Harris and Mr Tonkin where it is in conflict with the plaintiff’s evidence. I was impressed by their evidence. I find that the plaintiff had no rib symptoms relating to this accident when he was working for C&C Harris as they had well and truly settled by then.

127. [127]
     If the plaintiff has any continuing symptoms (and I have my doubts about this) they are attributable to the fall not to the motor vehicle accident.

128. [128]
     I hence now assess damages on the basis of these factual findings.

Plaintiff’s submissions

129. [129]
     The plaintiff submitted with respect to the nasal injury that there were ongoing symptoms associated with difficulties breathing, an increase in mucus and the experience of blocked nose in colder weather. There was a significant trauma to the nose and face with bruising and a closed eye. Dr Harris noted on examination the dislocation of the septum with a reduced airway. Some 16 months post‑incident, there was discolouration or dark pigmentation through the lower eyelids. It was ultimately submitted the claim was $145,000, including pain and suffering of $35,000, past economic loss of $10,000 and future economic loss of $80,000.

Defendant’s submissions

130. [130]
     The defendant submitted that the relevant ISV for the nose was item 16, moderate facial injury, ISV range 6-13. It was submitted that the ISV would be 6. With respect to the chest injury, it was under item 39.2, minor chest injury, ISV 0-4. It was submitted that the plaintiff’s employment came to an end in about June 2010 because of a lack of work. There were intermittent casual hours until the end of May 2011. The plaintiff advised Dr Pentis he was doing plastering work, as there was no roofing work. This was consistent with Facebook entries. The plaintiff earned considerably more working with C & C Harris. It seems that he voluntarily abandoned his work there. He then worked as an apprentice carpenter for Huggos Homes but his employment there was terminated on accident-related factors. His ability to find alternative employment would indicate a lack of work in the construction industry in Rockhampton and Yeppoon. Also, social media entries indicate a lack of motivation. It is submitted that there should be no award for past economic loss, or only a minor one. Relevant also was him assisting a friend ripping down walls for a week and a-half on or about 23 June 2010 and his no complaint of rib pain when he saw the Yeppoon Hospital on 14, 16 and 20 June 2010.

131. [131]
     With respect to future economic loss, Dr Harris did not consider the injury to the nose affected his working ability. If the plaintiff did suffer an injury to the ribs and/or thoracic cage, this has not interfered with his employment capacity. It was agreed that about $1,500 should be allowed for the time off for surgery as recommended by Dr Harris.

132. [132]
     No award should be made for gratuitous care, no or a limited award for special damages, and $7,500 for the operation to the nose. It is ultimately submitted the total award should be $15,200.

Conclusions

General damages for pain, suffering and loss of amenities

133. [133]
     Section 51 of the CLA defines general damages as:

“general damages means damages for—

1. (a)
   pain and suffering; or

2. (b)
   loss of amenities of life; or

3. (c)
   loss of expectation of life; or

4. (d)
   disfigurement.”

134. [134]
     The method of calculation of general damages is set out in Ballesteros v Chidlow [2005] QSC 280^[8] (also see s62 of the CLA).

135. [135]
     Section 3 of Schedule 3 of the Civil Liability Regulation 2003 (Q) provides that for multiple injuries the dominant ISV is to be considered. In this case item 16 is relevant. I assess a total ISV of 9. Separately the ISVs would have been 8 for the nose and 1-2 for the chest/ribs (item 39).

136. [136]
     I therefore allow $9,800 under this head.

Out of pocket expenses

137. [137]
     I allow $200 including interest for Panadol/Panadeine Forte with respect to a temporary aggravation to the ribs.

Past economic loss

138. [138]
     Section 55 of the CLA provides as to the calculation of economic loss. I note that “loss of earnings” is defined in Schedule 2 to as:

“loss of earnings means—

1. (a)
   past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; and

2. (b)
   future economic loss due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity”.

139. [139]
     I note that in assessing economic loss it has been said that sometimes this depends on matters incapable of precise proof (see McDonald v FAI Insurance Ltd [1995] QCA 436 per Thomas J). Some degree of speculation is inevitable (see Malec v Hutton (1990) 169 CLR 638).

140. [140]
     In my opinion it might be said that there may have been some effect on his absence from work for a few months post-accident. I assess a total of 8 months as this is consistent with the plaintiff’s description to Dr Gillett of greater symptoms for that period.

141. [141]
     The plaintiff was absent from work for the week commencing 6 June 2010 - a sum of $400. He was off work from 20 June 2010 until 12 December 2010 because of lack of work, but also on my findings his ribs would have been sore. Assuming an income of $400 net^[9] per week from 20 June 2010 until 12 December 2010, the amount is $10,000. I discount this by 50% on account of the contribution from the fall and because of the lack of work – a total of $5,000. I therefore allow $5,400. Interest at the rate of 2.015%^[10] should be awarded for a period of four years, a total of $435.24. This is consistent with a global sum I may have awarded.

Future economic loss

142. [142]
     Regarding future economic loss, I also have regard to s55 of the CLA. On my findings, I do not consider that any temporary aggravation to the rib area or the nose injury has caused any continuing future economic loss or impairment of earning capacity. I accept the defendant’s submissions. I accept the evidence of Mr Thorpe, Mr Wright, Mr Harris, Mr Tonkin and Dr Gillett. I do consider the plaintiff may require 10 days off work following surgery and allow $1,500 in this regard.

143. [143]
     Loss of past superannuation amounts to $486 at the rate of 9% and on the future economic loss, $150 at the rate of 10%^[11].

Future expenses

144. [144]
     I accept Dr Harris’ evidence in this regard and also accept it is unlikely that any operation could be done on the AMA scale. I allow $15,000 for the cost of the nose operation. As the operation should be done now, I do not consider any 5% discount is necessary.^[12]

Care

145. [145]
     In my opinion the care claim cannot be proved, as it amounts to nowhere near six hours per day for six months (s59 CLA).

Conclusion

146. [146]
     In conclusion, I award the following amounts:
     

147. [147]
     I give judgment for the plaintiff in the amount of $32,971.24.

148. [148]
     I allow the parties 7 days to apply to correct any errors in calculation under the slip rule.

149. [149]
     I will hear the parties on the question of costs.