DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr Knight seeks to appeal a decision handed down on 19 February 2014 in the Brisbane Magistrates Court in a matter involving a claim for damages for personal injuries, loss and/or other damage arising out of a motor vehicle accident which occurred on 20 May 2011.  Liability was admitted and quantum was the only issue. 

2. [2]
   He appeared on his own behalf at the trial.

3. [3]
   Judgment was handed down on 24 March 2014. The order of the Court was:

“1.There will be judgment for the plaintiff in the sum of $6,020.70 ($300.70 plus $5,720.00).

1. 2.
   Starting with the second defendant the parties are to exchange and file submissions on costs by close of business Thursday 17 April 2014.”

4. [4]
   On 22 April 2014 the Magistrate handed down an order for reserved costs in the following terms:

“(a)The second defendant is to pay all relevant statutory refunds and charges from the judgment sum.

1. (b)
   The plaintiff pay the second defendant’s costs of and incidental to the action fixed at $4,877.00.

1. (c)
   The amount of costs awarded to the second defendant be set off against the judgment sum.

1. (d)
   The second defendant is to pay to the plaintiff $6,020.70 less (the statutory refunds and charges plus the amount of costs awarded).”

5. [5]
   The primary award was based on $5,720.00 for general damages and $300.70 for special damages.

Nature of appeal

6. [6]
   Mr Knight seeks to appeal the decision on the following grounds:

1. (i)
   the orders are unreasonable due to the impact of injury suffered by the appellant, arising from the car accident of 20 May 2011;

2. (ii)
   whether the second respondent’s expert witness was unreasonably appointed;

3. (iii)
   whether the second respondent’s expert report was erroneous in nature;

4. (iv)
   whether the second respondent’s expert witness practiced in the relevant field in order to give evidence;

5. (v)
   whether damages awarded were manifestly inadequate;

6. (vi)
   false name stated by the at fault driver at the scene of an accident;

7. (vii)
   the appellant is exercising his right for the abovementioned proceeding which is subject to appeal, be heard de novo by the District Court of Queensland (Brisbane Registry).

7. [7]
   He seeks the following orders:

1. (a)
   Appeal allowed.

2. (b)
   The decision of the Brisbane Magistrates Court (civil 12096/13) dated 24 March 2014 be set aside or varied.

3. (c)
   That the Judge determining the decision grant new orders that are reasonable given the appellant’s pain and suffering, loss of amenities of life and lowered prospects of employment as a result of injury from the car accident.

4. (d)
   The appellant be allowed an ISV of 15 (general damages (pain and suffering, loss of amenities of life)); future economic loss (global figure), loss of future superannuation, future medical expenses and the Medicare Notice of Charge.

5. (e)
   That the second respondent pay the appellant’s costs of proceedings resulting from the car accident of 20 May 2011. 

The law

8. [8]
   Section 45 of the Magistrates Courts Act 1921 relevantly provides that where the amount involved is not more than the minor civil dispute limit, an appeal shall lie only by leave of the District Court or a District Court Judge, who shall not grant such leave to appeal unless the Court or Judge is satisfied that some important principle of law or justice is involved. 

9. [9]
   Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 prescribes the minor civil dispute limit at $25,000.00. 

10. [10]
    The respondents initially submitted that this is a matter in which the appellant needs leave of the Court to appeal, although at the hearing, counsel for the respondent indicated that they were not pressing that issue and that the appeal should be determined on its merits.

11. [11]
    The appellant submits however that leave is not required as the amount in dispute, as per the originating process in the amended Claim and Statement of Claim filed in the Cleveland Magistrates Court, is above the stipulated threshold to appeal in the District Court.

12. [12]
    The appellant’s argument in that regard is without merit. He is seeking to appeal an order made by the Magistrates Court which involved an amount substantially below the minor civil dispute limit. This is unquestionably a matter in which s 45 of the Magistrates Courts Act 1921 has application and leave is necessary, although given the respondents concession it is not a matter which would be determinative of the outcome of this appeal.

13. [13]
    Notwithstanding that no formal application for leave has been filed, the respondents are nevertheless content to proceed with this matter on the basis that the appellant has made such application orally in the proceedings before me.

14. [14]
    An “important principle of law or justice” requires that there be a question going beyond the consequence of the decision upon the immediate parties to the action or matter.^[1]  That definition sits comfortably with the statement of Webb J in the earlier case of Wanstall v Burke (1925) St RQd 295 at 298 where his Honour observed that whether there is such an important principle of law or justice will depend on the facts and circumstances of the case. 

15. [15]
    Furthermore, I note that in the matter of Lachlan v Hartley (1978) Qd R 1 at 5, a “three-tier approach” was espoused, namely:

1. did the making of the order by the Magistrate involve a question of law or justice?
2. if it did, was it an important question?
3. was the question wrongly decided?

16. [16]
    As I understand it, the appellant’s submission is that an important principle of law or justice arose as a consequence of the learned magistrate significantly erring in his judgment which ultimately denied the appellant the opportunity to receive a fair consideration of the issues.^[2] The respondent does not take issue with this submission.

17. [17]
    It is extremely doubtful, in my view, whether this would amount to an important principle of law or justice, but I will nevertheless examine the appeal grounds on the provisional basis that it does.

Background

18. [18]
    The appellant was 27 years of age at the time of the accident and is 30 years of age now.

19. [19]
    The accident occurred when the appellant’s vehicle was stationary at an intersection whilst awaiting an oncoming emergency vehicle, which had sirens sounding, to cross that intersection from the left. His vehicle was struck from behind by another vehicle driven by the first respondent. The force of the accident dislodged the driver’s seat from its upright tilt and buckled the metal rails that are utilised to slide the driver’s seat back and forth.

20. [20]
    The appellant was not employed at the time of the accident and had not been employed since March 2007. In evidence he said that he had applied for positions of employment with Australia Post and Optus since the accident, but such applications were unsuccessful.

Medical evidence

Ormiston Medical Centre^[3]

1. (a)
   Prior to the accident the appellant had no recorded history of back or neck pain. 

2. (b)
   On 1 June 2011 the appellant attended the Ormiston Medical Centre complaining of back pain in the lower thoracic and lumbar spine.  He reported being involved in a motor vehicle accident on 20 May 2011.  He described constant ache and indicated pain in both S1 joints.  He did not want pain relief, although he requested a CT scan. 

3. (c)
   On 2 June 2011 the appellant underwent x-ray of the thoracolumbar spine.  Dr Albert Chong in a letter accompanying the X-ray^[4] reported anterior wedging with about 25 per cent loss of height anteriorly in the T11 body suggesting a compression fracture.  The vertebral body alignment, disc spaces, neural foramina and facet joints were all unremarkable. 

4. (d)
   On 15 June 2011, the appellant underwent an MRI of the thoracic spine. In her report to the appellant’s general practitioner, a Dr Carter  interpreted the MRI results as follows:

1. (i)
   the presence of multilevel Schmorl’s nodes and degenerative disc disease/desiccation with features of Scheuermann’s disease;

2. (ii)
   resultant wedging of the vertebral bodies, maximal at T11 with no evidence of an acute post- traumatic fracture;

3. (iii)
   multiple small focal disc hermiations, maximal at T7-8, slightly displacing the cord posteriorly as a right para-central disc herniation but without altered cord signal; and

4. (iv)
   there was no evidence of any acute post-traumatic crush fracture.

5. (e)
   On 23 June 2011, the appellant reported that he has the odd good day now and then, but said that he did not need analgesics or NSAID. 

6. (f)
   On 17 May 2012, the appellant complained of thoracic pain especially when sitting for prolonged periods of time after 45-60 minutes. After sitting for prolonged periods he experiences a burning sensation. Otherwise, the appellant said he had has a permanent ache on a daily basis.  He was prescribed Panadeine Forte at his request. 

7. (g)
   On 14 September 2012, the appellant engaged in a long discussion about seeing an orthopaedic specialist for his back condition.  Panadeine Forte was ceased.

Dr Cooke’s report^[5]

21. [21]
    Dr Cooke, Orthopaedic Surgeon, examined the appellant on 12 October 2012 and provided a report.  His was the only expert orthopaedic evidence in the case.  Dr Cooke noted the following:

1. (a)
   The appellant reported that he experiences lower thoracic back pain.  He stated that it was worse when he makes sudden movements or when he turns quickly.  He reported a crunching sensation in the back and rated the pain as being 5 out of 10 on a pain scale of 0 to 10.  The appellant was unsure if he had limitation with respect to standing tolerance but stated his seating tolerance was approximately 45 minutes.  He denied any radicular symptoms in his lower limbs. 

2. (b)
   The appellant does not take any analgesic medication nor does he receive any physical therapy.  He was not employed at the time of the accident and has not sought employment since.  He stated that he could work but feels that he may have trouble lifting heavier objects in retail such as cartons of Coca-Cola by way of example. 

3. (c)
   The appellant reported that subsequent to the subject accident he had difficulty lifting his outboard engine which weighed 36 kilograms onto his dinghy.  He can do domestic activities around the home but will avoid any lifting or sudden twisting of his back as this would cause his symptoms to flare up.

4. (d)
   The appellant stood with normal alignment to his spine.  He mobilised with a normal gait and was able to walk on heels and toes.  He had normal forward flexion and extension. 

5. (e)
   The appellant was reluctant to perform lateral flexion to either side. 

6. (f)
   No muscle spasm was detected. The appellant was able to do a straight leg raise to 70 degrees bilaterally with no neural tension sign.  The neurological examination of the lower lumbar reveals intact deep tendon reflexes, normal power of the muscle groups and normal sensation to soft touch. 

22. [22]
    Dr Cooke diagnosed the appellant as having sustained a musculoligamentous strain of the lower thoracic and upper lumbar spine and was of the view that the described mechanism of the injury was consistent with what he observed. He also noted the appellant had received appropriate investigations for his back and he did not believe that the appellant would require any specific interventions.

23. [23]
    Dr Cooke did not believe that the injury would have caused functional limitations preventing the appellant from obtaining employment in the future, nor did he believe that the appellant would have any significant limitations to his desired recreational activities or to his daily living activities. 

Cross-examination of Dr Cooke

24. [24]
    On p 8 of his outline of argument and in oral submissions, the appellant has attacked Dr Cooke’s expertise and impartiality. He alleges, inter alia, that Dr Cooke practiced in the incorrect area of the anatomy in order to give evidence regarding the injuries the appellant sustained in the subject accident.  He also alleges that Dr Cooke changed several of his responses in his expert report under cross-examination and that Dr Cooke’s report remained at odds with the alleged extensive damage that he claims was revealed in the radiology reports. Finally, he has also alleged that some (undefined) improper procedure was involved in the appointment of Dr Cooke as the respondent’s expert.

25. [25]
    With respect to Dr Cooke’s practice, I note that he has been the Director of Orthopaedics at the Princess Alexandra Hospital since January 2004 and has been specially trained and certified to evaluate permanent impairment.  His qualifications were listed on his curriculum vitae as attached to his report.

26. [26]
    Dr Cooke gave evidence that one of his roles as the Director of Orthopaedics at the Princess Alexandra Hospital was to review all patients who came in through the hospital every morning of the week and he was therefore heavily involved in all aspects of orthopaedic injuries.^[6]  He further outlined his expertise and experience in some considerable detail.^[7] The appellants attack upon his expertise is completely without foundation.

27. [27]
    In terms of the radiological evidence, Dr Cooke addressed this question whilst under examination-in-chief and cross-examination. He noted that a structural abnormality was identified by the radiologist in the X-ray examination, namely a wedging of the vertebrae. He explained the findings in the radiological evidence as being related to the plaintiff’s pre-existing Scheuermann’s Disease and not accident related. He said:

“So Scheuermann’s Disease is a disease that is a developmental disease where it can cause some wedging of your vertebrae.  So it’s a long term condition and I, on reviewing the MRI Scan, believe that’s the findings on the scan, rather than an acute fracture involving the vertebrae.  If you had an acute fracture involving the vertebrae, at four weeks post-injury, you’d see a lot of bone marrow edema and you will – it would be very unlikely to see multi-level fractures as seen on the MRI Report.”^[8]

28. [28]
    When questioned by the appellant as to why his opinion differed from that of the radiologist, Dr Cooke said:

“My diagnosis isn’t a radiological diagnosis, it’s a clinical diagnosis based on a combination of the history, the examination and the investigation. The radiologist just comments on your investigation.”^[9]

29. [29]
    The appellant then suggested that according to one of the radiologists, he was suffering a T11 compression fracture. Dr Cooke replied:

“The plain radiographs said that there was a wedging of your vertebrae, that’s not a diagnosis of a compression fracture.”^[10]

Conclusion regarding Dr Cooke’s evidence

30. [30]
    There is absolutely no merit to the appellant’s assertion that Dr Cooke does not have sufficient expertise in the area of orthopaedics and musculoligamentous injuries to the spine. His uncontroverted evidence as to his experience and training regarding the spine unambiguously demonstrates that he is qualified in that regard.

31. [31]
    The appellant has also made a rather obscure claim attacking Dr Cooke’s impartiality. The allegation seems to be based on:

1. (a)
   Dr Cooke’s findings in relation to the appellant’s spine problems based on the radiological evidence;

2. (b)
   Dr Cooke’s examination of the appellant and the history he took from him; and

3. (c)
   the way in which Dr Cooke was appointed as the respondent’s expert.

32. [32]
    There is no evidentiary basis to this submission. Dr Cooke clearly and logically explained how he arrived at his opinion in this matter. I note also, that his opinion is consistent with the report of the radiologist who interpreted the MRI scan results. There is no evidence that any aspect of Dr Cooke’s examination of the appellant was unsatisfactory of fell below a reasonable standard and the history taken appears to have been both accurate and comprehensive.

33. [33]
    Insofar as his appointment is concerned, the appellant has submitted that he should have played a role in the selection of the respondent’s expert. He relies upon the provisions of Section 46 of the Motor Accidents Insurance Act 1994 in support of that submission. Section 46 relevantly states:

46Claimant and insurer may jointly arrange for expert report

1. (1)
   An insurer and a claimant (or intending claimant) may jointly arrange for an expert report on—

1. (a)
   the motor vehicle accident; or

1. (b)
   the claimant's medical condition or prospects of rehabilitation.

1. (2)
   Neither an insurer nor a claimant is under any obligation to agree to a proposal to obtain a report under this section.

1. (3)
   The person by whom an expert report is obtained is to be a person, agreed to by both parties, with appropriate qualifications and experience in the relevant field.

1. (4)
   The person by whom an expert report is prepared under this section must provide both parties with a copy of the report.

34. [34]
    The provisions of Section 46 were not utilised when the second respondent arranged for Dr Cooke to provide an expert report and there was therefore no obligation on the second respondent to consult the appellant in that regard.

Conclusion

35. [35]
    Dr Cooke said that in his opinion the appellant did not suffer an injury in the motor vehicle accidence that would have caused functional limitations preventing him from obtaining employment in the future, nor would it have had any significant limitations to his desired recreational activities or his daily living activities. No expert evidence to the contrary was given.

36. [36]
    Dr Cooke explained that any continuing pain suffered by the appellant was due to the presence, which had previously been undiagnosed, of Scheuermann’s Disease in the appellant’s spine. There is no evidence to contradict Dr Cooke’s opinion in that regard. Other than for his own evidence, the appellant appears to heavily rely upon Dr Chung’s letter of 2 June 2011, which says that the X-ray suggests a compression fracture (my underlining). 

37. [37]
    That suggestion is the high point for the appellant’s evidence.

38. [38]
    The learned magistrate’s acceptance of Dr Cooke’s evidence was not only unsurprising, it was the only conclusion that could reasonably be reached on the evidence before the court.

Quantum

39. [39]
    By reference to the radiology reports and the expert opinion of Dr Cooke, the only finding that could then be made on the evidence was that the appellant had sustained a minor soft tissue injury to the lower thoracic and upper lumbar spine in the subject accident.

40. [40]
    The learned magistrate concluded that such injuries fell within Item 94 “minor thoracic or lumbar spine injury”, ISV 0-4 which equated to a sum of $4,720. The respondents do not contend that that amount was inappropriate. I agree. In fact, the learned magistrate’s order involved an apparent miscalculation as the amount ordered for general damages was $5,720.00, which was $1,000.00 more than the maximum allowable under Item 94. The respondent submits however that nothing turns on this issue and are content with the amount ordered.

41. [41]
    The appellant placed no evidence before the court to support the submission that an award of $5,720.00 for general damages was inadequate compensation. If anything, given the factual basis upon which this award was made, the amount was quite generous. There was no evidence placed before the court to support the appellant’s submission that his injuries fell within Item 92.

Special damages

42. [42]
    The sum of $301.70, as indicated on the most recent Medicare Notice of Charge was admitted.

Future economic loss

43. [43]
    Section 55 of the Civil Liability Act 2003 provides:

“55When earnings can not be precisely calculated

1. (1)
   This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

1. (2)
   The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

1. (3)
   If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

1. (4)
   The limitation mentioned in section 54(2) applies to an award of damages under this section.”

44. [44]
    The learned magistrate found that the appellant was single, aged 29 (27 on the day of injury), had no children and still lived with and was financially supported by his parents.^[11] He also found that the appellant had not successfully applied for gainful employment for which he was qualified and had the capacity to perform since the accident.^[12] His Honour found that the appellant had failed to demonstrate any compensable disadvantage in the jobs market and was satisfied that he had not suffered and was unlikely to suffer any future loss of earnings as a result of the accident.^[13] He also concluded that the appellant had not shown that his earning capability had been diminished by reason of the injury to the extent of it being likely to be productive of financial loss.^[14]  The respondents have submitted that the magistrate rightly found that there should have been no award for future economic loss in those circumstances.^[15]  I agree entirely.  In fact, given the magistrate’s correct acceptance of Dr Cooke’s opinion, such a conclusion was inevitable. 

45. [45]
    Furthermore, in relation to the appellant’s employment history, the learned magistrate said at paragraphs [27] – [30].^[16]

1. [27]
   The Plaintiff was not working at the time of the injury. He has been out of work since March 2007. Previous employment in the retail industry (petrol station attendant at Coles) involved heavy lifting and stacking fridges. He says he has been unable to stand for long periods of time and cannot lift anything heavier than a watering can two thirds full since the MVA.

1. [28]
   The only other significant paid employment he has had was at Woolworths in 2002.

1. [29]
   The plaintiff finished year 12 of schooling and obtained a diploma in business at University of Southern Queensland after the three year course of study in 2009.

1. [30]
   He has not successfully applied for gainful employment for which he is qualified and has the capacity to perform since the road accident. Under cross examination the plaintiff explained that he discontinues active job seeking due to back pain and an unwillingness to risk aggravating it by taking on work that was too strenuous for him.

46. [46]
    The magistrate concluded that the appellant “is not in the current employment market and would not accept any appropriate job offers within his actual capacity out of genuine but misplaced concerns for risks of overextending himself”.^[17]

47. [47]
    As Martin J observed in Monger v Camwade,^[18] there must be evidence that the injury will or may be productive of financial loss. In this matter the appellant presented no such evidence and the magistrates conclusion to that effect was soundly based.  

Conclusion

48. [48]
    I can discern no error of fact or law on the part of the learned magistrate, nor can I identify any area in which the exercise of a discretion has miscarried. Furthermore, this is not a matter that involves an important question of law or justice, although that consideration is of little relevance given the respondents position on that issue.

49. [49]
    This appeal has no prospects of success. Accordingly, it is appropriate to refuse leave and I so order.

50. [50]
    I will hear the parties as to costs.