Gordon v Nachabe[2015] QDC 313

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff was injured when he was involved in a car accident on 20 December 2010 (the accident).   He was waiting at a give way sign to turn left, when the car driven by the first defendant, and insured by the second defendant, collided with the rear of the plaintiff’s car.  By this proceeding, the plaintiff seeks to recover damages for the injuries, and consequences, he suffered as a result.  Liability is admitted.  The issue in the proceeding is the quantum of damages recoverable by the plaintiff. 

Factual context

2. [2]
   The plaintiff is currently 49 years of age, and was 44 at the time of the accident.  He is married and has two children, currently aged 8 and 4.
3. [3]
   He and his wife had only just arrived in Australia about 2 weeks before the accident, having emigrated from the United Kingdom.  They had visited Australia prior to this, in about 2007, staying for about a year and a half.

Medical history – prior to the accident 

4. [4]
   The plaintiff had spinal fusion surgery in 1999, following a fall in which he injured his back.   He said that after about six months following the surgery, he “practically operated as … normal”.  He was running, going to the gym, playing golf,^[1]and was not otherwise restricted in terms of his recreational activities, or household tasks.
5. [5]
   On this basis, Dr Keays, an orthopaedic surgeon who gave evidence at trial, described the plaintiff as having had an “excellent result”^[2]following the spinal fusion surgery.
6. [6]
   Nevertheless, the medical opinion was to the effect that, prior to the accident, the plaintiff would have been assessed as being within DRE lumbar category IV (of the AMA Guides, 5^thedition) and accordingly having a 20% whole person impairment, on the basis of having had this surgery but having no restrictions on recreational or domestic duties.^[3]   

Medical history – post accident

7. [7]
   The plaintiff said that he started to notice pain in his lower back a few days after the accident, as well as a “burning pain” in his groin.^[4]   He said he did have some problems with his neck initially, which lasted a few months, but thought that might also be related to stress, or posture at work or age.  He said it was the lower back and the groin that was causing the problem.^[5]
8. [8]
   He saw his GP at the Manly Clinic, who subsequently referred him to Results Physiotherapy although not until about September 2011 it seems.^[6]The plaintiff said the physiotherapy did help somewhat, but only for what seemed like a few hours, and then the pain would come back.^[7]
9. [9]
   The plaintiff’s GP records show the plaintiff complaining of severe pain in the right hip, referring into his right groin, in October 2011.^[8]As a result, the plaintiff was referred to Dr David Hayes, orthopaedic surgeon, by his GP. 
10. [10]
    Prior to this, it seems the plaintiff was sent, by his lawyers, to two specialists in Sydney,^[9]Dr Harvey-Sutton (a consultant occupational physician)^[10]and Dr Kwong (a consultant physician and rheumatologist),^[11]whom he saw on the same day, 17 October 2011. 

Dr Kwong and Dr Harvey-Sutton

11. [11]
    Dr Kwong prepared a report dated 5 December 2011.^[12]He recorded that the plaintiff was complaining of intermittent neck pain and stiffness, intermittent low back pain, burning pain in his right groin, and intermittent limping due to right groin pain.  Dr Kwong diagnosed cervical strain; aggravation of lower lumbar facet joint arthritis; and right hip strain.^[13]
12. [12]
    In relation to the cervical strain, Dr Kwong assessed the plaintiff as fulfilling DRE cervical category II, and assigned a 7% whole person impairment.  In relation to the lumbar spine, based on his assessment, he assigned a 5% whole person impairment, but reduced this by 50% having regard to the history of injury and spinal fusion, resulting in a (rounded up) figure of 3%.  In relation to the right hip, he assessed a 4% whole person impairment.  This resulted in a total whole person impairment of 14%.^[14]
13. [13]
    Dr Harvey-Sutton’s report is dated 24 October 2011.^[15]She recorded the plaintiff as having suffered an injury to his neck (whiplash-associated disorder grade II) and back (whiplash-associated disorder grade II of the lumbar spine), with referred pain into the right groin.^[16]
14. [14]
    In relation to his neck, she assigned a 7% whole person impairment.   In relation to his lower back, she also assigned a 7% impairment, resulting in an overall assessment of 14%.^[17]Dr Harvey-Sutton made no allowance for any impairment as a result of the spinal fusion surgery, explaining that the method she adopted was to separate what had happened as a result of the present accident, as opposed to what had happened in the past, because the information she had was that the spinal fusion was stable and was not contributing to the impairment he currently had.^[18]
15. [15]
    Both of these doctors were questioned, in cross-examination, about differences of outcome in terms of aspects of their physical examinations of the plaintiff (eg range of motion, muscle spasm), on the basis that this might affect a conclusion about reproducibility of symptoms, and therefore reliability.^[19]However, in circumstances where they saw the plaintiff once, just over 4 years ago (therefore not taking account of improvements since then, including following hip surgery in 2012), for medico-legal purposes, it seemed to me there were limits to the probative value of their opinions in any event.  I did not find anything to persuade me to accept or reject either their opinions, or the credibility or reliability of the plaintiff, on the basis of these minor differences. 
16. [16]
    I certainly have not disregarded their evidence.  I accept the submission from counsel for the plaintiff that it is relevant to the overall picture of the impact of the accident on the plaintiff.  But similarly, it is appropriate to observe that their reports do not take account of the general improvement in the plaintiff’s injuries since October 2011, including as a result of the hip surgery he had in May 2012 and, for that reason, I have not found their ultimate opinions regarding assessment of impairment persuasive, preferring instead the more recent evidence from Dr Keays and Dr Brandt, which is referred to below.

Dr Hayes

17. [17]
    Dr Hayes first saw the plaintiff on 19 December 2011, when the plaintiff presented with “right groin and low back pain”.  Dr Hayes diagnosed “labral cartilage tear right hip”.^[20]
18. [18]
    In his report back to the GP after that consultation Dr Hayes recorded that (I infer based on what he was told by the plaintiff) “[h]e became aware of back and groin pain not too long afterwards [ie after the accident] and he continues to experience groin pain which radiates through the buttock.  This is aggravated by activity and he can’t run or do physical exercise.  He does describe some form of catching in the joint and describes an unlocking manoeuver. He has no past history of injury.”
19. [19]
    Dr Hayes also recorded that, “[o]n clinical examination he had reduced spinal mobility.  He had a positive Trendelenberg sign and he had pain reproduced by hip flexion and internal rotation.  His MRI scan confirms a superolateral labral tear”.^[21]
20. [20]
    Dr Hayes recommended right hip arthroscopic surgery, which was subsequently carried out on 31 May 2012.
21. [21]
    In a letter dated 31 January 2012, the physiotherapist who had treated the plaintiff, Adam Schuhmacher from Results Physiotherapy, advised that the plaintiff’s “back has improved with treatment, however his groin/hip symptoms have persisted.  He is due to undergo surgery on his hip in the near future”.^[22]
22. [22]
    The plaintiff had further physiotherapy following the hip surgery, the outcomes of which are recorded in Mr Schuhmacher’s report dated 31 October 2012,^[23]in which it is reported that the plaintiff’s “patient specific functional scale has improved overall since his surgery but still remain short of his target functional levels”. 
23. [23]
    In a letter to the plaintiff’s GP dated 13 June 2012, Dr Hayes reported that he saw the plaintiff the day after the surgery, that “[h]is pre-operative symptoms have resolved and he is mobilising well.  I have organised for him to have a couple of sessions of physiotherapy to assist with his recovery and I have discharged him from my care”.^[24]
24. [24]
    It appears that Dr Hayes saw the plaintiff again on 25 November 2013, on referral from a GP at Manly Clinic.  In his report back to the GP on that date^[25]he noted that the plaintiff reported that he had recently done some exercise where he was walking on a treadmill trying to get fit; that “[t]he escalator declined to a 15º incline and following this he has had the acute onset of lower back and inner groin pain radiating through his right testicle.  The pain has been excruciating over the course of the last week”.   Dr Hayes said his impression was “that a combination of factors have contributed to an episode of inflammatory pain which is non structural”.
25. [25]
    In a memorandum of discussion between Dr Hayes and the plaintiff’s counsel on 17 November 2015, it is recorded that “Dr Hayes considered that the injury sustained by [the plaintiff] to his hip is consistent with the mechanism of injuries described to him involving the knee coming into contact with the dashboard as a result of the collision”. Dr Keays also agreed with this.^[26]There was in fact no dispute regarding causation of the hip injury.
26. [26]
    As to his current symptoms, the plaintiff agreed that his back and hip pain had improved following the surgery by Dr Hayes, but said “the back is still not anywhere near like it used to be” and described the hip as “not being 100 percent”.^[27]

Dr Keays and Dr Brandt

27. [27]
    For the defendant, expert evidence was called from Dr Anthony Keays, consultant orthopaedic surgeon^[28]and Dr Brandt, a specialist physician in occupational and environmental medicine.^[29]
28. [28]
    In his first report, dated 27 January 2012, Dr Keays reported (under the heading “current status”) that:

“[The plaintiff’s] main problem is pain in his right groin.  It is now a year post-injury and this pain persists. He grades it 3/10 severity at rest.  It is aggravated by running, gym work, mowing, vacuuming and walking a few kilometres.  He also has lumbosacral backache which radiates to the right sacroiliac joint.  It is 3/10 severity at rest.  It is aggravated by bending, lifting, vacuuming and any physical activities.  There is no radiculopathy or neurological symptoms in the lower limbs.  He gets burning in his back at night.”^[30]

29. [29]
    Dr Keays’ diagnosis was of a soft tissue injury to the plaintiff’s lumbar spine and right hip.  He noted that the plaintiff was scheduled to undergo an arthroscopy of his right hip, but said he requires no further treatment for his back (at p 5).  Dr Keays said there were no restrictions on his ability to work full time, in administrative and management work (pp 4 and 7); and said that his main problem is in relation to physical work, “especially running, playing sport, and going with his children”, as well as some restrictions of activities at home, such as vacuuming, sweeping, mowing and washing the car (at pp 6 and 7). 
30. [30]
    In terms of assessment of permanent impairment, Dr Keays said it was not appropriate at that stage to comment in relation to the plaintiff’s right hip, having regard to the upcoming arthroscopy (pp 7 and 8).  However, in relation to the plaintiff’s back (lumbar spine), he said:

“he requires no further treatment or rehabilitation.  This injury would be stable and stationary.  Following a spinal fusion he would now be assessed as being a DRE:  Category IV, according to Table 15.3, Page 384 AMA 5^thEd.  This equates with a 20% whole person impairment.  However, 100% of this can be apportioned to his pre-existing spinal injury with spinal fusion at L2/3.

As such, he has sustained a 0% impairment regarding the subject injury to his lumbar spine.” (p 8)

31. [31]
    In his second report, dated 13 March 2013,^[31]Dr Keays indicated that his opinion regarding the plaintiff’s spinal problems remained unchanged (p 3).  In relation to his right hip, under “current status”, Dr Keays recorded that:

“It is a year since arthroscopy of the right hip.  There has been reported benefit from this procedure in that his groin pain has been relieved.  He grades as 3/10 severity at rest but still requiring use of Brufen.  His hip pain is aggravated by vacuuming, gardening, mowing, whipper snipping, walking or standing for long periods.  He is unable to run for the bus.  He has symptoms sitting for prolonged periods.  He denies previous problems with his right hip.  He also gets some clunking of the right hip when he gets up from sitting.” (p 4)

32. [32]
    In relation to “present work status” he recorded that “[h]e started work as a business continuity advisor with RACQ in June 2011.  He says his job is sedentary and he gets some symptoms with prolonged sitting which causes him to get up and walk about” (p 4).
33. [33]
    In summary, Dr Keays noted that, since the arthroscopy, the plaintiff “had reduction of the groin pain but residual symptoms in the right hip and groin are requiring analgesics” (p 5).   He recorded that the plaintiff said his ongoing problems with domestic and recreational activities are equally due to his back and hip problems (at pp 5 and 6).  Dr Keays said no further surgery or rehabilitation was required, in relation to the right hip, but a program of analgesics with stretching exercises would be appropriate (p 7).
34. [34]
    Once again, Dr Keays said there is no limitation on the plaintiff’s ability to do his normal duties as a business adviser, and “[t]here is no significant work-related incapacity other than discomfort with prolonged sitting which is relieved by walking about” (p 8).   He reiterated this in his oral evidence, saying emphatically that he did not accept (“[a]bsolutely not at all”) that the plaintiff had a diminution of his capacity to undertake his usual work duties and hours.^[32]
35. [35]
    He expressed the opinion that the plaintiff has sustained a 2% whole person impairment consequent upon the injury to his right hip (p 9).
36. [36]
    In relation to the back, by reference to the assessment of 20% whole person impairment, due to the spinal fusion surgery, Dr Keays’ primary position was that he did not consider that any “uplift” above what would have been assessed following the spinal surgery was warranted, in circumstances where he considered there was a mismatch between the objective clinical findings and the plaintiff’s subjective reporting (of restrictions etc).   However, his evidence, based on a hypothetical question concerning a person who begins with a 20% WPI, but subsequently sustains an injury which does result in some restriction on their ability to carry out household tasks and recreational activities, was that the WPI could increase to 21%, with half of that increase (of 1%) being attributable to the subsequent injury.^[33]
37. [37]
    Dr Brandt, who is an occupational physician, saw the plaintiff on 2 September 2013, and provided a report dated 11 October 2013.^[34]Among other matters, Dr Brandt recorded that the plaintiff “indicates that he feels that his right hip movements have worsened over the past four months, due to sleeping away from home when in Sydney for work and spending longer hours at his work” (p 5) and further that:

“Since March 2013, he has worked as a self-employed Business Continuity consultant.  Mr Gordon indicates that not including travel time, he currently works on average 40 to 45 hours per week, at a rate of $120 per hour.

He flies down to Sydney on a Monday or Tuesday of every week and returns back to Brisbane on Thursday or Friday.  He stays in accommodation in inner Sydney.  He indicates that his lower back is feeling worse because of staying in Sydney, sleeping on beds which are not particularly comfortable.  He indicates that he experiences relatively more pain sleeping in these less comfortable beds in Sydney, in comparison with sleeping at home.

He indicates that currently his work is going well and he has a number of contracts and increased opportunities in Sydney.  He indicates that one of his current projects is for the broadcaster for the upcoming Commonwealth Games.

He works at his clients’ premises.  He also works from his home office in Brisbane.  He uses a lumbar cushion and a coccyx pillow.

He reports that he is able to perform his job.  When asked whether his productivity is affected as a consequence of accident-related injuries, he indicates ‘hopefully not’.  He is just hoping that his symptoms don’t get any worse.  He is worried that ultimately if his health does not improve or if it worsens, he might not be able to continue to work away from home or that he might need to reduce his work.” (p 7)^[35]

38. [38]
    After reviewing a number of other medical records and reports, Dr Brandt expresses the opinion that the plaintiff sustained the following injuries in the accident:  a soft tissue strain / sprain injury of the lumbosacral junction and right sacroiliac joint, and a tear of the right hip joint labrum (p 12).  He did not consider that the plaintiff had sustained an aggravation of his pre-existing lumbar spine fusion (p 14).
39. [39]
    Dr Brandt said that from an occupational physician perspective, none of the plaintiff’s usual occupational duties as a self-employed business continuity consultant are medically unsuitable as a result of his accident related injuries; and that his capability to perform his duties “would not be predicted to be reduced at the present time or in the foreseeable future, as a consequence of his injuries” (p 18).  Dr Brandt said that the plaintiff has no work incapacity in his usual occupation.  He reiterated this in cross-examination, saying there is no medical basis to require the plaintiff to be restricted.^[36]
40. [40]
    Dr Brandt assessed the plaintiff as having a 2% whole person impairment as a consequence of accident-related injuries (p 21).  More specifically, that assessment was made in respect of the mild restriction in right hip external rotation (p 22).  Dr Brand’s opinion was that there was 0% impairment in respect of the lumbosacral / sacroiliac symptoms (p 22).   In this regard, Dr Brandt said that, just prior to the accident, the plaintiff would have had a DRE IV impairment due to the pre-existing spinal fusion, which has a range of 20-23% whole person impairment, which continues to be present, and said “there is no basis on which to apportion any of his pre-existing DRE IV impairment to the subject accident” (p 21).  He further explained, both in his report (p 22) and in his oral evidence, that in order to assess the plaintiff as having greater than a 23% impairment, he would need to meet the criteria for DRE Lumbar Category V (radiculopathy with significant lower extremity impairment or a lumbar spine fracture with greater than 50% compression with neurological compromise), which he did not, and accordingly he was assessed as having 0% impairment from the accident.^[37]
41. [41]
    It was apparent, from Dr Brandt’s oral evidence, that he had also considered the assessment of the plaintiff’s lumbar spine, even apart from the pre-existing DRE IV impairment.  In that context, he said he assigned DRE category 1 (with a 0% impairment) because when he saw the plaintiff there were no clinical signs that would put him in the DRE II category, there was “no muscle spasm, dysmetrial guarding.  There was no abnormal lower limb neurology”.^[38]

Work history

42. [42]
    The plaintiff has a range of qualifications in relation to what I might generically describe as information and communications technology.  In particular, he described himself as being a “certified business continuity professional”.^[39]
43. [43]
    Prior to leaving the UK, he was working as a business continuity specialist for the NHS (National Health Service).^[40]
44. [44]
    He said when he was in the UK he would often have to travel for work and commuting was just part of what he had done.^[41]
45. [45]
    One example he gave was that when he was working in the UK, for the NHS, he was doing a 7 hour commute in a car twice a week, leaving his home in Wales on a Sunday afternoon to drive to London, and then travelling back again on Friday afternoon.  He said he had no physical concerns with that journey.^[42]It was not clear how long he did this for.^[43]He said that in other roles he had also been required to commute, and work away for the week, for example, if he was working in Europe; although on other occasions he had a shorter journey from home.^[44]   He generally worked a 40 hour week.   He said it was probably 50% of his work that required him to travel away from home, and 50% that did not.^[45]
46. [46]
    When previously in Australia, in 2007, the plaintiff worked for QSuper (Queensland State super fund) as a business continuity consultant, working between 35-40 hours per week, at a rate of $114.50 per hour.^[46]I infer this was in Brisbane.
47. [47]
    The evidence was to the effect that, on that occasion, it took about 10 to 12 weeks to find work, when first coming to Australia.^[47]
48. [48]
    The plaintiff described how much he and his wife loved Australia and wanted to live here, deciding that Brisbane was the place they wanted to settle and bring up their children, because Sydney was not much different from London in terms of hustle and bustle and that was not what they wanted.^[48]The plaintiff said he was always aware that Brisbane “wasn’t the commercial capital of” Australia and that most of his work would likely be in Sydney or Melbourne, and that was something he accepted.   He agreed that notwithstanding that, they choose to live in Brisbane for lifestyle reasons, explaining that:

“I actually said to the wife recently, when they renewed the contract, how about moving to New South Wales, being as I’ve got to spend so much time there and the comment received back from my wife was exactly this:  if I’ve got to move to New South Wales and Sydney, we’re moving back to London, because that’s not quality of life for me or the family.”^[49]

49. [49]
    After the accident, the plaintiff said that due to the pain that he was in, he did not want to be far away from home and travelling to Sydney or Melbourne, so he was “restricted to actually trying to find work within Brisbane”.^[50]
50. [50]
    He did obtain work, as a business continuity consultant with RACQ, starting in June 2011.  He described that as taking “probably longer – twice as long as the time I would normally take to find work”^[51](presumably by reference to the 3 months it had previously taken him to find work in Australia).
51. [51]
    The plaintiff described what he earned at RACQ as “less than half” what he could have earned if he had been looking at jobs in Sydney or Melbourne (which he said would be between $100 and $120 an hour).  He seemed to explain that on the basis that he was employed on a full time basis by RACQ, whereas the rates he was referring to for work in Sydney or Melbourne were for contract work.  Elsewhere, in the evidence, it appears the plaintiff earned an annual salary of $142,484 at RACQ, in the 2011-2012 financial year.^[52]
52. [52]
    When working at RACQ he was working the same as his usual hours – 37-40 hours per week.^[53]He travelled to work by car, and did not have any difficulties with that.
53. [53]
    He described his work at RACQ, as being the same as his work now, involving 75% of the time sitting in front of a PC and 25% of the time visiting and meeting with people.^[54]
54. [54]
    He had no problems with the work at RACQ.  He could get some discomfort from sitting, but that was relieved by getting up and moving around.^[55]In relation to working at RACQ, he said:  “I was fine, yeah.  Yeah, I was sleeping in my own bed, and I was – I was based in Brisbane, and so there was not an – an – excessive amount of travel involved.  It was a 20 minute drive to work so I wouldn’t see any issues with that, which kind of backs up my story”.^[56]
55. [55]
    Although he said he worked for RACQ for 18 months,^[57]he later said he finished there in April 2013^[58](which is more like 22 months). 
56. [56]
    Based on that chronology, it is apparent that, on both occasions that the plaintiff was seen by Dr Keays, he was working at RACQ.  He also underwent the hip surgery with Dr Hayes whilst working at RACQ.  Dr Keays’ evidence, of what he recorded from the plaintiff, is consistent with the plaintiff not experiencing any difficulties with his work whilst at RACQ, save for occasional discomfort from sitting, which was relieved by getting up and moving around. 
57. [57]
    After finishing his employment with RACQ, the plaintiff said that, although he wanted to work in Brisbane because of “how uncomfortable I would be having to do the commute”, there was not any work in Brisbane and so he looked for work in Sydney and Melbourne.^[59]There was not, however, any evidence tendered on behalf of the plaintiff regarding attempts to apply for or obtain work in Brisbane, either as at April 2013, or subsequently.
58. [58]
    All of his working arrangements since leaving RACQ have been on a contract basis.
59. [59]
    In terms of financial arrangements, the plaintiff’s contracts for work are entered into by a company, EZRV Hire Pty Ltd (EZRV), rather than him personally.  The “fees” payable for that work are paid to EZRV, and then divided equally between the plaintiff and his wife as “wages”.  As the plaintiff put it “even though I do a majority of the work, she gets paid for being a housewife, if you like, but she’s also doing part of the work with EZRV, trying to promote that, the idea being that if that is successful that we would have less reliant (sic) on my work being in Sydney and I could do more work from home”.   The reference to “promote that” is a business idea, which the plaintiff described as the equivalent of Airbnb, but using recreational vehicles.^[60]It appears this business has not yet been successful.^[61]I infer none of the income of EZRV, as it appeared in evidence before the court,^[62]is referable to this business.
60. [60]
    This financial and accounting arrangement, together with an absence of documentary records regarding hours worked, or amounts invoiced, other than to one of the entities the plaintiff has worked for, makes the determination of what the plaintiff has in fact earned difficult, a matter I will return to below.
61. [61]
    The first contract was with Family and Community Services in Sydney, which he said was for 40 hours a week.  He started this in April 2013 and said it lasted for about 4 months until August 2013.^[63]   The hourly rate was $96.^[64]
62. [62]
    When asked “how did you go with that work”, he said he “found it very uncomfortable”, following which he described that he was commuting by leaving on Sunday night and returning on a Friday evening, and staying in the cheapest accommodation he could find ($75 a night) which was very uncomfortable as it effectively had only a sofa bed.^[65]He said he was in pain, and taking pain killers at this time, describing it as “a difficult slog”, and saying “I found with the combination of the travel, the working full time and the sleeping arrangements, things – things were not working out well”.^[66]At the end of the week he was “fit for nothing really”, and would come home quite grumpy and in pain,^[67]and found he could do “very little” with his children.^[68]
63. [63]
    He confirmed that he found the travel, for work, uncomfortable, saying “it’s because I’m having to commute long distances, it’s causing a difficulty.  Because I’m having to stay in inadequate beds that it’s caused me difficulty.  But that’s part and parcel of what I do, you know, at the end of the day.”^[69]
64. [64]
    In comparison to this work, he said of his job at RACQ “that was a much more comfortable situation”.^[70]He said that although he was in pain when working at RACQ, he “wasn’t in as – in the severe pain that I was from having to have all the travel and the work and … and the accommodation problems I was.  So the pain was just getting – and the uncomfortableness was getting progressively worse.”^[71]
65. [65]
    After leaving the role with Family and Community Services, in about August 2013, he took up a role with Business Risks International, doing the same kind of work, on what he called a “semi part time basis”, doing between 24-30 hours a week.  He said this meant he would only have to leave home on a Tuesday, and return home on a Thursday, and he could do some work from home.  Although, after producing the invoices relevant to this work, in the course of his cross-examination, he explained that when he first started to work here, there was a backlog, and so he would have worked greater hours.^[72]He said the rate was $110 per hour.^[73]   He had the same type of accommodation, but because he was only spending 2 nights there, he said that was far better and he was spending more time in his own bed.^[74]
66. [66]
    As to the invoices, an issue that arose during the trial was the absence of any documentary records of the hours worked by the plaintiff in his various roles since finishing with RACQ.  He indicated, in cross-examination, that there would be such documents (either timesheets, or invoices issued by EZRV), but it appeared no such documents had been disclosed.   As to why they had not been disclosed, the plaintiff said he had not been asked.^[75]Although counsel for the defendant suggested this reflected poorly on the plaintiff, in the absence of anything to contradict what he said about not being asked, I do not consider it can be assumed a lay person would know what they need to disclose in a legal proceeding.   He said he was not aware that the defendants’ solicitors had been calling for these documents (I infer, prior to trial).^[76]The documents (invoices, timesheets and anything that records the hours and reduction in hours worked) were called for during the trial, but the only documents produced were some of the invoices issued by EZRV to Business Risks International.^[77]This is a serious evidentiary deficiency, in the context of a claim for economic loss, calculated by reference to a loss of 8 hours work per week.
67. [67]
    What the invoices that were produced show is that up until about mid-October 2013, the plaintiff was working sometimes up to 44 hours a week, and after that it ranges from about 24 to 34 hours, the work seeming to peter out considerably from about mid-May 2014 to October 2014.^[78]As to the latter, I infer that is a reflection of the work coming to an end.
68. [68]
    Again, in terms of the chronology, the plaintiff was seen by Dr Brandt in September 2013 (so towards the beginning of the contract with Business Risks International).
69. [69]
    Following this, in about October 2014,^[79]the plaintiff took up a similar role with the State Records Authority of New South Wales, where he continues to work now.  He said he is working 4 days a week, doing 32 hours.^[80]The rate is $100 per hour. 
70. [70]
    As already noted, no documentary records of the hours worked, or invoiced, in respect of this role, were produced. 
71. [71]
    Since being in this position, he has found more favourable accommodation close to where he works, which presently costs $150 per week.^[81]It is effectively a shared house arrangement, in which he rents a room for the whole week, although the arrangement, and level of rent, takes into account that he is not there for the whole week and his housemate has the privacy of his own place on the weekend.^[82]He described this as a lot better because it is a more comfortable bed and “I’m getting the time that I need at home with the children”.  He said the commute “is still very difficult”, taking about 5 or 6 hours.  He leaves on a Monday afternoon at about 2pm to fly to Sydney, then has to get two trains to Penrith, where he lives (and which is close to his work) which takes about an hour and a half.  He travels back on Friday, leaving at around midday.^[83]
72. [72]
    In terms of the travelling involved in his commute he said “because a lot of time is spent sitting, it doesn’t – it doesn’t bode well on the – on the back at the end of day.  So I still struggle – I still struggle, but that’s part-and-parcel”.  In relation to his hip pain, he said sitting on the plane sometimes causes problems.  He said the first time he notices any symptoms once he starts travelling is “generally on the plane”.^[84]
73. [73]
    The work he is doing now is much the same, 75% at a computer and 25% at meetings or visiting people.^[85]
74. [74]
    He said “I don’t think my back, per se, affects my quality of work; it’s the way I feel about having to do prolonged work or commuting long distances that’s causing the problem, not what my output as a – as the quality of the work that I produce”.^[86]
75. [75]
    He said he is able to perform his work; and his productivity is not affected.^[87]In circumstances where his evidence was to the effect that the “uncomfortable bed” situation was now resolved, and asked what the remaining issue was, he said:

“The remaining issue is that if I was normal and I was able to stay on a sofa bed, let’s say, because I didn’t have my back problem then I would be able to work a full five days a week without the fear of having to come home at the weekend and be grumpy with my children because of my pains and – aches and pains.  That’s – that’s the issue.  And so I’m having to work less days a week away to compensate for the fact that I do have to spend time travelling that’s made uncomfortable as a result of the accident which I never experienced before and as I said, I used to travel 14 hours a weekend.  That’s the problem.  The problem is the quality of life that I have at home at the weekend which I’m having to do less work to accommodate to make sure that it is quality time.”^[88]

76. [76]
    It was suggested to the plaintiff that, if there has been a reduction in his work hours, that is due to a lifestyle choice made by him; that he is tired of commuting, especially now that he has two young children.  He disagreed with that, refusing to accept that with his wife and now two young children up here in Brisbane, he might be getting a bit sick of the commute to Sydney every week.  He said “I’ve commuted all my life and it makes no difference.  I’ve always done it”.  He said he is grumpy because of the pain; not because of having to travel to Sydney week in and week out.  And he said “the pain is because of the travel and the pain is because of the bed”.^[89]
77. [77]
    I regard with some caution the plaintiff’s refusal to acknowledge in any way that his current family circumstances would make his continuing to commute to Sydney every week more difficult than it might previously have been.  Moreover, his evidence given in this context reveals a determined adherence to his argument regarding the impact of an uncomfortable bed, which is inconsistent with his own evidence about that matter having been resolved.
78. [78]
    Although counsel for the plaintiff submitted that the plaintiff’s evidence “in terms of what he’s doing now is about the static posture of sitting for extended periods of time at the computer entering data”,^[90]and that it is not the travelling, and accommodation away from home that is a problem, such that it can be inferred even if the plaintiff were working in Brisbane, he would still have to reduce his hours,^[91]I am unable to find that reflected in the plaintiff’s evidence at trial. 
79. [79]
    The plaintiff’s evidence, I find, was to the effect that it is the travelling, and staying away from home, that has resulted in him electing to work fewer hours.   His evidence was not that the actual work, including the requirement to sit at a computer, caused him difficulties.  On the contrary, his evidence was that, whilst working full time at RACQ, he had no difficulties, other than mild symptoms that were relieved by getting up and walking around occasionally.  As Dr Keays commented, that occurs with people even without a hip problem.^[92]It follows from his evidence that, for example, if he did not have to travel, he could work 40 hours per week, as he previously did.

Impact on recreational, family and domestic activities

80. [80]
    The plaintiff described enjoying a range of recreational activities prior to leaving the UK, including gym work, running, football, golf and skiing;^[93]as well as playing with his then young son (who would have been aged almost 3) and riding bikes with him.^[94]He said now, he cannot do any running, cannot play golf, and just does a little bit of gym work (weight training, saying he tries to go once a week).^[95]
81. [81]
    He said he has noticed differences in his relationship with his wife since the accident, saying “I think mainly because of the kids and not being able to help out as much.  She’s got to do more. She’s more tired”.^[96]He said they were always quite an active couple before they had kids, and even when they were living in Wales, before emigrating to Australia.  He described his “disabilities” as affecting holidays, saying they would have been more active before.  In this regard, he referred to a recent skiing trip (this year), where he said “I hardly skied”.^[97]He described this as a seven day trip, saying he only skied up to the third or fourth day, three or four runs a day.^[98]I note that the plaintiff’s wife, referring to the same recent skiing holiday, described it as a three day trip and said that although the plaintiff tried to ski, he struggled.^[99]
82. [82]
    He said he does “nothing” around the house to assist, although said “I do do it on – on rare occasions that I have to because the wife is unwell herself or somebody’s coming around and she needs to clean the carpets and she’s busy cooking or whatever.  And on occasions I do try, but I certainly suffer as a result”.  He said the most he does is a bit of hoovering.^[100]
83. [83]
    In contrast, he said that prior to the accident he used to help out all the time, cleaning the cars once a week, doing the hoovering, “help the wife as much as possible”, helping in the garden.  He said since the accident his wife has taken over all of those chores, including mowing and whipper snipping^[101](also saying that she thinks he cuts the grass too short, and doesn’t trust him with the whipper snipper,^[102]so she prefers doing it herself anyway).  He said they get the car cleaned every 6-8 weeks, and pay someone to do it.^[103]He also described other maintenance jobs (like cleaning the windows or painting) that he would have done previously, but now they would have to pay someone to do.^[104]    There was no documentary evidence of any such expense(s) having been incurred.
84. [84]
    It is noted that, in the report from Dr Harvey-Sutton, occupational physician, whom the plaintiff saw on 17 October 2011,^[105]it was recorded (at [1.5.2]) that “[h]is wife was also in the accident and he now does the hoovering and cleaning the floors and bathroom, usually on Saturday.  He finds these activities aggravate his pains particularly back pains”.^[106]This paints a slightly different picture from that presented by the plaintiff and his wife (that is, that post-accident he had started to do tasks he did not do before, to help his wife). 
85. [85]
    The plaintiff’s wife described him doing quite a bit of maintenance work, and doing a great deal in terms of general household chores, prior to their emigration to Australia.  This was in the period when they were living in Wales, and he was travelling away to work for the week.  She described a fairly considerable level of activity at this time, but it was apparent that was because they were renovating a property on which they had a holiday rental business, and trying to get a lot of things done in a short time frame before leaving for Australia, as opposed to a description of normal life.^[107]
86. [86]
    Although, she did say that generally the chores were evenly shared.  She said that now, although he will do bits when he can, it is left to her “[b]ecause we try and get him to rest as much as he can at – at the weekend”.  She described him doing the washing up and unpacking the dishwasher and helping to give the boys a bath if he’s not in pain.^[108]
87. [87]
    She described him as being physically active with their first child (born in January 2008), playing games like horsey-rides on his back, and soccer, and “just general fatherly stuff”.^[109]But she said now, when they also have  a second child (born April 2011) although he will cuddle his children on his lap and play board games and lego and things like that, there is hardly any physical interaction anymore.^[110]She said:

“It’s left to me now, really.  David’s miserable most of the time.  As my little boy would call him, he’s a grumpy old man.  Because he’s in pain a lot.”^[111]

88. [88]
    She described him as being “angry and miserable a lot” and “kind of hard with the kids”.   Although she acknowledged the combined effect, of the stresses of having two young children, and the plaintiff commuting for work, as well as her observation of him being in pain, she said “but at the same time, he’s not the man he was”.^[112]
89. [89]
    She said they were a very social couple prior to the accident, but he’s “not really wanting to do much of that anymore”.^[113]
90. [90]
    Although I consider there is probably some overstatement - in terms of the level of household assistance the plaintiff contributed prior to the accident, and also in terms of the situation post-accident (because neither the plaintiff nor his wife, in their evidence about the foregoing matters, factored in any improvement in his injuries which the plaintiff himself acknowledged, with the passage of time and following the hip surgery, or made any differentiation in terms of the situation when the plaintiff was working in Brisbane, as opposed to commuting to Sydney, and then before and after he says he reduced his hours) - I accept that the accident-caused injuries have resulted in some restrictions for the plaintiff in terms of recreational, family and domestic activities that he previously enjoyed.
91. [91]
    I note that both Dr Keays and Dr Brandt expressed the view that the plaintiff’s injuries would not be such as to warrant requiring assistance with domestic chores, including things like car washing.^[114]

Assessment of Damages

General damages

92. [92]
    On the basis of the evidence, I accept that the plaintiff’s accident caused injuries are appropriately classified, according to schedule 4 of the Civil Liability Regulation 2003 (Regulation),^[115]as follows:

    1. (a)
       For the neck, item 89 (minor cervical spine injury), on the basis that the plaintiff’s evidence was to the effect that this has resolved without ongoing symptoms.  I note the ISV range is 0 to 4.  Considered on its own, I would regard an ISV of 1 as appropriate.
    2. (b)
       For the lower back, item 94 (minor thoracic or lumbar spine injury).  Although the plaintiff submitted item 93 was appropriate, I do not accept that since it requires the presence of objective evidence which, on the evidence of Dr Keays, is not present.  The ISV range for item 94 is 0 to 4.   Considering this injury alone, and having regard to the comment which appears at item 94, I would regard an ISV of 4 as appropriate.
    3. (c)
       For the hip, item 128 (minor pelvis or hip injury), for which the ISV range is 0 to 10.  Having regard to the comments at item 128, and the evidence of Dr Keays and Dr Brandt, both of whom assess a 2% whole person impairment referable to the hip, I would regard an appropriate ISV as 3.
93. [93]
    As there are multiple injuries, it is appropriate to consider whether either s 3(2) (assessing the ISV for the dominant injury as being higher in the range, to reflect the adverse impact of multiple injuries) or s 4 (assessing an ISV above the maximum dominant ISV, where that is inadequate having regard to the impact of multiple injures) of schedule 3 of the Regulation applies.  The hip injury is the dominant injury.
94. [94]
    Here, if I was to put together what I consider are appropriate ISVs for each of the three injuries, the overall ISV would be 8.  But taking into account the evidence of the plaintiff, and of his wife, regarding the overall impact of the injuries on him in terms of his recreational, social, and family life, as well as the impact he describes in relation to travelling for work, I am satisfied it is appropriate to assess the ISV as being at the top of the range provided for item 128 (that is, 10).  I do not consider that any uplift above that is warranted, on the evidence.
95. [95]
    The award for general damages will therefore be $12,950.00.

Past economic loss

96. [96]
    The claim for past economic loss is put on the bases that, firstly, the plaintiff was delayed in obtaining work following the accident and, secondly, he has reduced his working hours by reason of his injuries.  He claims an amount of $65,000, calculated by reference to the 133 weeks that have elapsed since the end of the RACQ work, and on the basis of a loss of 1 day per week of work (valued at $800 (on the basis of $100 per hour, for an 8 hour day), and after tax reduced to $693).  The figure of $65,000 is achieved after applying a discount of 30% for weeks when the plaintiff worked longer hours or the variable nature of his actual hours.^[116]
97. [97]
    Just by reference to that methodology, there are two other issues that would result in reductions:  firstly, that the evidence was not to the effect that the plaintiff has worked less since he left RACQ (at the least, the evidence shows him working up to 44 hours per week until October 2013^[117]); and, secondly, on the evidence before the court, I regard $100 per hour as an artificial measure of the plaintiff’s income.^[118]
98. [98]
    However, there are a number of other difficulties with the plaintiff’s claim for economic loss, both in the past and in the future, which arise from a lack of evidence in some respects (including evidence of hours worked; amounts invoiced; and costs involved; as well as evidence about work opportunities (or lack of them) in Brisbane); from the evidence in fact given by the plaintiff; from the medical evidence of Dr Keays and Dr Brandt; and from the financial accounting arrangements with EZRV, which makes the task of determining the income earned by the plaintiff difficult.
99. [99]
    Under s 55(2) of the Civil Liability Act 2003, the court may only award damages for loss of earnings 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.  But of course preceding this inquiry is the essential requirement for a plaintiff to demonstrate, on the balance of probability, that their earning capacity has been diminished by reason of the negligence-caused injury(ies).  What s 55(2) reflects is the next, essential requirement, to show that the diminution in earning capacity is or may be productive of financial loss.^[119]
100. [100]
     The evidence – both of the plaintiff himself, and of Drs Keays and Brandt – is that the plaintiff’s earning capacity has not been diminished by his accident caused injuries.  He still has the capacity to work the hours that he did prior to the accident. 
101. [101]
     What the plaintiff described was discomfort associated with what is undoubtedly a significant commute (involving about 6 hours travel, by plane and train, each way, and living away from home), which has led him to reduce the hours he works, in order to have more quality time at home with his family.   
102. [102]
     In this regard, counsel for the defendant referred to Duong v Versacold Logistics Ltd [2010] QSC 466 at [109] as authority for the proposition that a person cannot recover economic loss where their earning capacity has not been reduced, but they have elected, for lifestyle reasons, not to work (or, as here, to work less).^[120]
103. [103]
     In my view, that is simply an application of the general principle established in Medlin which requires that a plaintiff prove, first, that their earning capacity has in fact been diminished by reason of the negligence-caused injury and, second, that the diminution is or may be productive of financial loss.   The relevant question is whether, as a result of the accident, the plaintiff has been rendered less capable of earning income.^[121]
104. [104]
     The present case is distinguishable from Medlin because, in that case, it was found that Professor Medlin’s earning capacity was so diminished, because it was established that the continuing effects of his accident-caused injuries decreased his ability to properly discharge his duties as a professor, and therefore were a contributing cause to his decision to retire early.^[122]
105. [105]
     In the present case, the evidence does not support a finding that the plaintiff has been rendered less capable of earning income.  The medical evidence, of Dr Keays and Dr Brandt, is expressly to the contrary – that is, that his capacity has not been diminished.  The plaintiff’s own evidence is of having no difficulties working a 40 hour week, absent the travelling.    This is on the basis of his experience when working for RACQ, from June 2011 to April 2013.  
106. [106]
     Moreover, the evidence is to the effect that his condition had improved by April 2013, including following the hip surgery, which reinforces the probability of him continuing to have no difficulties with his work.
107. [107]
     There are clearly lifestyle choices involved, both in terms of choosing to live in Brisbane, but work in Sydney; and in terms of electing to work less, having regard to the amount of time spent travelling to work in Sydney.  In so far as working in Brisbane is concerned, although the plaintiff’s evidence was to the general effect that there is less of the kind of work he does in Brisbane, and that it is less remunerative:

     1. (a)
        beyond his assertions, there is no evidence before the Court of any inability on his part to obtain work in Brisbane – he gave no evidence of having tried to seek such work, since leaving RACQ, and no evidence about the availability or otherwise of such work was tendered; and
     2. (b)
        as to the work being less remunerative, that is not demonstrated either, given that:

        1. when the plaintiff worked for QSuper in 2007-2008, he said he was earning $114.50 per hour – which is more than each of the contracts he has subsequently had in Sydney; and
        2. although the calculations are imprecise, given a lack of material, if I proceed on the basis that in the financial year ended 30 June 2015 the payments received by EZRV, for work performed by the plaintiff, totalled $119,917;^[123]and, further, assume that was in respect of the equivalent of 32 hours per week (rather than 40); it can be seen that, had the plaintiff worked 40 hours, the gross receipts would be about $150,000 – which is not all that different to the $142,628 gross salary that the plaintiff earned at RACQ (without even factoring in the costs of travelling, and the absence of benefits such as sick leave and holidays).
108. [108]
     All that I consider can be found, in this case, having regard to the plaintiff’s evidence of some ongoing pain and discomfort in his back and hip, is that it may be possible that the plaintiff will, from time to time, be unable to work because of intermittent pain, due to his accident caused injuries (relevantly, his hip), and on that basis be entitled to a modest global award to take account of that possibility, of the kind discussed in Ballesteros v Chidlow [2006] QCA 323 at [23], [40]-[42]; Allianz v McCarthy [2012] QCA 312 at [9]-[10] and [71]; and Reitano v Shearer & Anor [2014] QCA 336 at [4]-[9]. 
109. [109]
     I do not consider that I can make a finding, on the balance of probabilities, that this has occurred to date (there not being such evidence, for example, of time taken off work, even when the hip operation occurred).   But the possibility is there in the future, and therefore ought to be taken into account.^[124]
110. [110]
     Finally, it may be accepted that, had the plaintiff been employed at the time the accident happened, he would have required a period of time off work.  In fact, he was not so employed, having just arrived in Australia 2 weeks before the accident.  He says it took him an additional 3 months to find work, because he was restricting himself to the Brisbane market.   It is difficult to assess that as a matter of probability, absent any evidence other than the plaintiff’s assertions about that.  There could be all manner of reasons why a person who has newly arrived in Australia (in December 2010), and who has just had a baby (in April 2011), might take some time to find suitable work, even putting to one side the fact that both the plaintiff and his wife were involved in the accident.
111. [111]
     Any assessment of a past hypothetical proposition is speculative to a degree.^[125]Nevertheless, on balance, I am satisfied it is appropriate to make some allowance for loss of earnings, as a consequence of the accident-caused injuries, in the period shortly following the accident.  I propose to assess this at $11,400 (calculated on the basis of estimated net weekly earnings of $1,900,^[126]for a period of 6 weeks).
112. [112]
     Interest is payable on this amount at the rate of 1.31%,^[127]for 4 years and 11 months (4.9 years), which amounts to $732.00.

Future economic loss

113. [113]
     The plaintiff’s claim for future economic loss is, similarly, put on the basis of an ongoing diminution in earning capacity of 1/5^th(that is, the loss of the ability to work one 8 hour day per week).
114. [114]
     It follows, from my findings above, that the plaintiff has not discharged the onus of proving a diminution in his earning capacity on this basis.

115. [115]
     However, as already indicated at paragraph [108]above, I am satisfied it is appropriate to make a modest global award.  As to an appropriate methodology, although no evidence was given about this, I proceed on the basis that the plaintiff has a remaining working life of 17 years (being almost 50 now).  Although quantifying the potential impact from time to time in the future is necessarily hypothetical, and speculative, I propose to proceed on the basis of 2 weeks per year (roughly reflecting the amount of sick leave an employee may be entitled to).   In circumstances where I do not consider a higher figure has been established on the evidence,^[128]I propose to use the net weekly figure of $1,900, calculated by reference to the plaintiff’s net annual income at RACQ for the year ended June 2012 of $99,342.  Two weeks per year would equate roughly to a loss of 4% (an amount of $76 net per week).   Adopting the appropriate multiplier from the 5% tables (603), results in an amount of $45,828.00.  Acknowledging the inevitable imprecision in this task, I propose to increase this slightly, and award an amount of $50,000.

Future expenses

116. [116]
     On the basis of Dr Keays’ evidence, that no further treatment is warranted, apart from analgesics and stretching exercises,^[129]I propose to allow the amount of $3,000.  It does not seem to me that the very considerable amount sought by the plaintiff is established on the evidence.
117. [117]
     As to paid assistance, I do not allow any amount for this, as I do not regard it as having been established that such costs have or will be incurred; or are necessarily appropriate, in addition to the increased level of general damages that I have assessed, taking into account the plaintiff’s evidence about his general limitations.

Special damages

118. [118]
     Special damages are agreed, in the amount of $7,799.00, together with interest of $132.00.

Summary

119. [119]
     In summary, then the award of damages will be as follows:

Orders

120. [120]
     There will be judgment for the plaintiff, consistent with these reasons.  However, I propose to invite the parties to submit an appropriate draft order, after having the opportunity to consider the calculations above.  I will also hear the parties as to costs.