Gorlick v Behan[2016] QDC 357

DISTRICT COURT OF QUEENSLAND

1. [1]
   The first defendant is an employee of the Townsville City Council and was the driver of a garbage truck. The second defendant is a licensed insurer pursuant to the Motor Accident Insurance Act 1994 and liable to indemnify the first defendant in respect of any judgment made against the first defendant.

2. [2]
   In this proceeding the plaintiff seeks damages for personal injuries and other loss and damage, arising from an incident near 6 Koro Court, Kelso in Townsville, on 28 October, 2013, said to been caused by the negligence of the first defendant, together with interest pursuant to the Civil Liability Act 2003 (Qld).

3. [3]
   Both liability and quantum are in issue.

The incident

4. [4]
   The incident in which the injuries were alleged to have occurred involved an Isuzu MK IV side-loading compactor garbage truck (“the truck”) driven by the first defendant in the course of her employment. The first defendant was collecting household garbage in a way typical in Townsville, by means of a mechanical lifting device attached at the side of the truck which lifted and tipped ‘wheelie garbage bins’ (“the bin or bins”) from the edge of the roadside kerb into the top of the garbage compactor on the truck.

5. [5]
   The plaintiff took her bin to the kerbside for it to be collected, after the truck had passed her driveway. How she arrived at that location, the short route which she took and what happened after that is a matter of contention between the parties. The truck had already moved forward to the vicinity of the next house to collect a bin placed there at the kerb for collection.

6. [6]
   The plaintiff went onto the road behind the truck to move the bin to the other side of the road for collection and the truck reversed. The plaintiff alleged that she stepped backwards with the bin to move out of the way, caught her heel at the edge of the driveway and the roadside gutter and fell onto her buttocks on the driveway. As she tried to get up, she fell a second time, hitting her head on the concrete driveway.

The issue

The issue is whether the plaintiff was on the road and had to move backwards to get out of the way of the reversing truck or whether she was not on the roadway but rather on the driveway and off the road, and fell as a consequence of her own conduct. The two matters for consideration in simple terms are the position of the plaintiff vis-à-vis the truck at the material time; and what caused her to fall.

7. [7]
   The plaintiff’s case is that her having fallen twice and suffered injuries is a direct consequence of and were caused by the reversing of the truck by the first defendant.

8. [8]
   The defendant’s case is that the truck was not implicated in the plaintiff’s falls and that she independently fell and suffered injury; or alternatively, to the extent that the garbage truck may be found to have been relevantly implicated, there is an issue of contributory negligence by the plaintiff.

9. [9]
   Insofar as quantum is concerned, the extent of any injury is in dispute, including allegations by the defendants of pre-existing health and medical conditions; and the quantum of loss and damages, particularly economic loss.

Liability

Notice of Accident Claim Form.

10. [10]
    The Notice of Accident Claim Form (part of Exhibit 1), signed by the plaintiff and dated 11 July 2014, so far as is relevant to the issue of liability, records:

“The driver of the council garbage truck caused the incident by reversing toward me when I had asked her to meet me on the other side of the road.”

and

“I proceeded down the driveway with the wheelie bin in front of me and walked towards the roadway. At this point I realised I was too late and the truck had passed my residence. I could see the diver of the truck in the left hand seat and made eye contact with him [sic]. I gestured to the driver with my arm pointing forward over the road to advise that I would take the wheelie bin over the other side of the road for collection. I then proceeded off the pavement with the wheelie bin still in front of me. The driver then, without warning started to reverse at speed towards me. To avoid being hit I moved backwards quickly onto the pavement. However, I struck my heel on the pavement, causing me to fall heavily onto my buttocks.”

The kerb and driveway

11. [11]
    The photo shows the driveway, kerb, gutter and roadway, with markings made by the plaintiff in the course of her testimony, referred to in the summaries of her evidence on the liability issues that follow.

Statutory Declaration

12. [12]
    The plaintiff made a Statutory Declaration about the liability issue on 06 November 2015. In the document the plaintiff declared that:

Further evidence on liability

The plaintiff’s description of the incident

13. [13]
    The plaintiff in testimony said that she was resting indoors and heard the truck driving past the house (into which she had moved some four days earlier) and realised that the bin had not been taken out to the kerb for garbage collection. She rushed outside to take the bin from the left-hand side (as an observer would look from the road) and across the front driveway, over a grass verge and around a bush to the roadside kerb edge. However, the truck had moved on to the next residence. The street was a cul-de-sac. The truck still had to drive around the cul-de-sac to collect and empty other bins as it returned along the road on the opposite side to the plaintiff’s driveway.

14. [14]
    The plaintiff waved to the driver (with her left arm), made eye contact with her (in the left-side rear vision mirror) and with the other arm pointed across to where she intended to take the bin. She regarded the ‘eye contact’ as ‘permission’ to move behind the truck. The plaintiff retraced her steps and moved to the end of the driveway, pushing the wheelie bin. She did not take a direct route to the kerb and did not step from the grass onto the roadway. She moved out onto the road two or three steps behind the truck, with the intention that the bin would be placed on the opposite side so that the truck on its return down the street would pick it up. At that point she could not see the driver.

15. [15]
    The truck suddenly reversed. In cross-examination she said she did not did not see the reversing lights but when she heard the gear change she started to move backwards ‘to preserve her life’. It was her perception that the truck was about to reverse before any beeper was heard. She then heard the reversing beeper.

16. [16]
    Even though she had provided a version to her lawyers and made the Statutory Declaration, in March 2014 and November 2015 respectively, she agreed that the first time she had referred to the reversing beeper was in court. She said she had been a truck driver for 30 years and heard (and, inferentially perhaps, recognised) the sound of the truck change to reverse:

“I can hear the gears shift. The gears change … there’s a difference between forward and backwards.”

17. [17]
    She had to move backwards ‘hastily’ with the bin to get out of the way. She had the bin in front of her with two hands on it and was facing the other side of the road. She stepped backwards, turning the bin to her right hand side to get it away from potential contact with the truck. She struck the back of her left heel where the road met the driveway at the roadside kerb [Exhibit 8D]. She fell onto her buttocks. The bin fell over her partly to her right-hand side. The drivers cab was then level with her. She tried to roll the bin off herself and rolled a bit to the side and got up. She was in pain and lent on the bin.

18. [18]
    She has no specific recollection of what happened after that other than the driver attending on her and talking on a mobile phone to someone she thought from what was being said was the ambulance service.

19. [19]
    The driver asked if she was ‘alright’ and the plaintiff asked her to wait a minute. The plaintiff said that she was not fully conscious, had a headache and a lump on her head when she spoke to the ambulance [paramedic] and to staff at the hospital. She denied any conversation with the driver before she fell and maintained that she fell on the driveway in the way she had described.

20. [20]
    In cross-examination she was asked why the markings she made in court [Exhibit 8A], which shows a more circuitous route to the kerb around a shrub rather than a direct route as indicated by her in photo #4 in Exhibit 3A. She said the markings in the photos in the Statutory Declaration were not correct.

21. [21]
    The plaintiff said she had placed the bin on the grass near the kerb. The lifting arm on the truck had not started to pick up the bin next door when she arrived at the kerb.

22. [22]
    She denied the first defendant’s version of the incident.

The first defendant’s description of the incident

23. [23]
    The first defendant described the pre-departure procedures for the truck. The truck was fully operational when it left the Council depot. In other words, so far as is relevant to the incident, the revering lights and beeper were working and the side rear mirrors and rear camera and drivers cab monitor screen were working. She drove from the left-hand side driver position in the truck cabin.

24. [24]
    The first defendant described the incident scenario quite differently from the plaintiff. She saw a person moving down the driveway [at No 6 Koro Court] towards bins at the left side of the driveway. She had already gone past the plaintiff’s driveway to the next house. She saw the plaintiff in her left-side rear vision mirror and had her within her sight at all times, but denies there was any eye contact with the plaintiff.

25. [25]
    The neighbours bin had been placed on the left of the driveway of that house, closest to the plaintiff’s house. She emptied that bin and then put the truck into reverse to pick up the bin, released the brake and reversed the truck slowly to a position where the cab of the truck was adjacent to the plaintiff, who was in the centre of the driveway with the bin on its wheels, some distance from the roadway. The reversing lights and warning beepers on the truck operated when the reverse gear was engaged and the truck reversed.

26. [26]
    She said that the plaintiff was standing to the right of the bin and was not holding onto it. The plaintiff was level with the cab after it had reversed and spoke to the first defendant about her caretaking the house and not having put the bin out. The first defendant said the plaintiff never went on to the road but remained at all times on the driveway. She was never behind the truck.

27. [27]
    The plaintiff was about 1.5 metres from the truck and stepped back one or two steps, not holding onto anything. The first defendant continued:

“… she must have clipped the heel or something but she fell back and landed on her bum … I didn’t know whether I should’ve got out of the truck or just stay there … I stayed still. The truck didn’t move. Didn’t operate. Didn’t do anything and just kept asking if she was okay … the only thing I can recall is she said, ‘my tailbone’, which I kind of figured because she landed very hard.”

28. [28]
    The plaintiff had fallen to a seated position. She used the bin to pull herself up and was leaning on the bin (towards one side), then suddenly fell on her back, hitting her head. It sounded like “a melon hitting the ground … I thought, for sure, she’d split her head open.”

29. [29]
    The first defendant said that the fall was not associated with the movement of the truck. She jumped out of the cab (the truck was in neutral and idling) and attended upon the plaintiff. She put her in the recovery position and checked her breathing. She got her mobile phone from the cab and rang the ambulance and then did what she was told to do. She rang her office and spoke to Mr Pascoe. She said the plaintiff stayed on the driveway in the same place until the ambulance arrived.

30. [30]
    The first defendant eventually reversed the truck out of the court and continued her collection tasks.

31. [31]
    In cross-examination the first defendant confirmed that there was a preference that bins be placed on the kerb (to provide manoeuvring room for the truck); and that there were two mirrors on the left hand side of the truck, the larger one directed along the side of the truck and the smaller one directed at the bin on the kerb side. There was a camera which fed images to a monitor screen in the cab of the truck, either a view into the compactor together with a view behind the truck or a full screen view behind the truck (when the truck is put into reverse gear).

32. [32]
    The first defendant said she was seated on the left hand side of the cab with mirrors to the left and the monitor screen to her right. When the truck was moving forward one cannot see directly behind the truck. One cannot see someone positioned directly behind (that is, close to the rear) of the truck. Sometimes if the engine was idling a person outside would have to approach very closely to the door of the truck to have a conversation with the driver.

33. [33]
    A number of credit issues arose in the course of the first defendant’s evidence, particularly in respect of prior statements provided by her to divers others. The first defendant made three written Statements, one to a representative of her employer on 30 July 2014 (Exhibit 13), the second on 04 December 2014 (Exhibit 14) and the third to an investigator engaged by the second defendant, on 04 December 2014 (Exhibit 15).

34. [34]
    In the Exhibit 13 Statement she was recorded as saying the following:

“I drove into the court, no. 6 was not out. I drove past the address and out of the corner of my eye saw a lady come out of the house. She was walking pretty quick pulling a wheelie bin, I started to reverse. She walked backward onto the driveway from the gutter with the bin. I stopped. I was watching her. She spoke to me, I had the window down. She was looking after the property for the owner (she told me a friend of hers). I think she then backed away from the truck and caught her heel on the driveway.”

35. [35]
    She agreed in cross-examination that this account was different in some respects from her evidence in chief. She explained that her reference to “gutter” was not “not completely incorrect”. She attempted to explain that it was, in effect, continuous with the driveway. She said:

“the gutter itself is blended into the driveway. She never left the driveway. So she walked backwards onto the driveway which means she’s still on the driveway.”

and she explained that:

“I probably would’ve reworded it to say, like, further onto the driveway.”

36. [36]
    She did not see what the plaintiff caught her heel on.

37. [37]
    In the Exhibit 14 Statement the first defendant said, so far as the plaintiff’s movements were concerned:

“I was collecting bins on the left hand side of the road and travelled past where the incident happened when I noticed the lady hurrying down to the edge of the kerb with her wheelie bin. Although I had already passed that collection point I was able to reverse back in order to collect the bin for her.

She brought the bin down close to the kerb so I started reversing back. She was on or near the kerb as I did this. I recall seeing her start to walk backwards when the next thing she caught her foot on something and tripped backwards landing heavily on her tailbone. I believe she landed on the driveway as she did this. It was either concrete or pavers or something similar to that. She came down hard and was clearly in a lot of pain.

I don’t think she was wearing anything on her feet and I believe the back of her foot caught the kerb or some other raised edge which caused her to trip and fall backwards.”

38. [38]
    In the Exhibit 15 Statement, the first defendant is recorded as having said the following:

“Just as I got near 5 Koro Court, I saw a lady in the driveway at no. 6 Koro Court in my left hand mirror. I don’t remember if she was pushing a bin at that time although I think she was going to get her bins from where they were on the boundary.

… I could clearly see the lady standing on her driveway.

I picked up the rubbish at no.5 Koro Court, and then put the truck into reverse and moved approximately half a metre backwards. I knew by doing this that my reversing beepers would sound and alert the lady that I intended to reverse. The truck was stopped and it did not go backwards any more.

I did not know what she was going to do so by me having the truck in reverse the beepers would sound. I was not going to move anywhere until I knew exactly what she intended on doing.

I did not see the lady indicating that she intended to take her bin to the other side of the road.

Before I moved again, I could see that the lady was till on her driveway. She was not on the road at all. The bin may have been on the gutter or the roadway, I cannot remember, but I do know that she was still standing on her driveway.

I could see that she was clear of the truck as she was on the driveway, so I reversed towards the driveway to collect her bin.

I reversed between 10 to 15 meters at about 5 kilometres per hour. I know I wasn’t moving fast as it was only a small court and the trucks don’t move very fast in reverse.

I had reversed back to the lady’s driveway and was talking to her. I stayed in my truck and she stayed standing on her driveway. She then approached me at the truck door so I spoke to her through the open window of the truck.

I think she apologised to me for not having the bins out as she didn’t live in that house and was just looking out for it for friends. I don’t remember the conversation from then.

I hadn’t operated the arm of the truck to pick up her rubbish bin, which was beside her, because I had to wait until she was clear of the bin.

The next thing I remember was that she backed away from the truck with her back facing the house, she took a couple of steps backward.

The next thing I saw her fall straight down onto the driveway. I don’t know what caused her to fall. I guessed that she clipped her heel on something and lost balance. I don’t remember if she had shoes on.

When she fell, she was about 1.5 meters from my driver’s door. She landed on her rear and it looked like she landed hard.”

39. [39]
    In cross-examination the first defendant said that her expression “caught her heel on the driveway” meant caught her heel “on the middle of the driveway”. It was the way that she fell that made her think she had caught her heel on something.

40. [40]
    In cross-examination she agreed that in the Exhibit 14 Statement (described as a “draft” statement) she agreed that what she had said [about the cause of the fall] would mean that the plaintiff was on the gutter or on the kerb and caught her heel on the kerb or some sort of raised edge. She agreed that that was different to what she had said in examination in chief because “I forgot to put in that [statement] I was actually talking to her”. She also agreed that in the draft (Exhibit 14) Statement she did not say that she had a conversation with the plaintiff before she fell over. She agreed in cross-examination that in the Exhibit 15 Statement her reference to “I did not see the lady indicating…” was something that she would not have known and that she must have been told that the plaintiff had made that statement. She also agreed that in the latter Statement her reference to having reversed the truck twice was different to what she actually could recall. She said that in so far as recalling events was concerned she relied on how she normally would have done things and remembered things to the best of her recollection. She agreed that when she made the Exhibit 15 Statement she could not remember at that time where the bin actually was. She said in re-examination that she had no problems hearing the plaintiff speak when the plaintiff was outside the cab of the truck.

Other evidence on liability

Ms Lewis

41. [41]
    Ms Lewis was a paramedic employed by the Queensland Ambulance Service (“QAS”) and attended at 6 Koro Court after the incident. The plaintiff was lying in the driveway about 2 to 3 metres from the road, in the ‘recovery position’ (on her right side).

42. [42]
    She believed the ambulance had been parked across the driveway entrance and the truck was further in front of it, on the road, although conceded in re-examination that the ambulance could have been in front of the truck, although that would have been difficult and would have required a reversing manoeuvre to get in front of the driveway.

43. [43]
    She made notes in a QAS Report (part of Exhibit 1, at folio 58) and had used those to prepare a witness statement some 16 months after the date of the incident and to assist her memory, which she said was ‘not 100%’.

44. [44]
    The case description in the QAS Report (28 October 2013), so far as is relevant to the liability issue, records:

“… pt [patient] post mechanical fall and ?ALOC [alleged loss of consciousness]. Pt tripped when walking backwards whilst putting out rubbish bins, pt fell onto her coccyx region, fall witnessed by garbage collector, pt immediately called out and spoke to bystander. Bystander states pt then proceeded to fall from sitting position striking her occiput on concrete ground. O/a [on arrival] pt lying 9R0 lateral on driveway…”.

45. [45]
    There was no record made of the distance from the road that the plaintiff was observed to be lying. In cross-examination she said the distance of 2-3 metres was an estimate, “… its always an estimate because it’s not something that we would be acutely looking for as such, because you focus on the patient” and agreed that there was also the passage of time from [the event] to when she was being asked to recall.

Mr Pascoe

46. [46]
    Mr Pascoe was the dispatch officer at the Townsville City Council, with day to day management responsibility for the garbage trucks. He gave evidence about the pre-start checking system for trucks (referred to by the first defendant) and the policy that dictates action to be taken if a truck is involved in an accident (there is nothing contentious now, about those matters).

47. [47]
    He said that the truck was a 22 cubic metre compactor model, as described in the right-hand column of specifications in Exhibit 20, but an older model and a truck length of about 11m to 11.45m. [The truck was of the type depicted and specifications stated in the photo that follows]:

Other documentary records (in Exhibit 1)

48. [48]
    The Townsville Hospital Emergency Department record (28 October 2013) at folio 64, as far as is relevant to the liability issue, records:

“The presenting problem was MECH fall this am. Tripped post stepping backwards onto coccyx bone. Then fell backwards and hit head from sitting height, brief LOC [loss of consciousness] initially on QAS arrival.”

49. [49]
    A Townsville Hospital Emergency Department record made on 04 March 2014 at folio 69 similarly records:

“… fell backwards onto buttock Oct 2013 ... fell onto concrete … also struck head and ?LOC”.

50. [50]
    A Queensland Police Service ‘Traffic Crash Report’ made on 10 April 2014 at folio 19 briefly records the incident. The plaintiff reported the incident after consulting her lawyers in March 2014. In part it records:

“Number of Witnesses [of the event] 0”; and “Nature of crash: Hit pedestrian”; and “Crash Description: Townsville City Council garbage truck caused pedestrian to fall over”;

and

“I got up Monday morning to take the bin out. The Council truck passed my driveway and went on to the next house. She was picking the bin up. I had suggested I was going across the road to put the bin out on the other side. She looked at me in her rear-view mirror. I started to walk across the road behind the truck. She was emptying the bin, put it down on the path and has quickly reversed backward. I had no time to think as I had lost sight of her mirror and I was behind the truck.

I took a few steps back to avoid being hit (otherwise she would have run over me) and I’ve hit the gutter with my feet and my bin has fallen on top of me. She asked if I was alright. I said ‘just give me a minute until I get up’. I picked the bin up off me, trying to stand up. I leant over the bin and that’s all I remember until the Ambulance came. I ended up at the Townsville Hospital at about 9:10am.

I’ve injured my tailbone, right knee and my hip.”

Submissions on Liability

Plaintiff

51. [51]
    Ms Keegan referred to the first defendant’s duty of care to the plaintiff in taking reasonable care and keeping a proper lookout. She submitted that the plaintiff’s evidence was more cogent than that of the first defendant and supported a finding that the plaintiff was on the road and not on the driveway, when the truck began to reverse; and that the cause of the plaintiff’s fall was that she had to move backwards to avoid the reversing truck, clipped her heel on the gutter and fell back onto the driveway. She submitted that the first defendant’s account when analysed supported the “clipping” of the heel and that other than the edge of the gutter there was no other observable trip hazard that might have caused the fall. Therefore the plaintiff must have been on the road and not on the driveway.

52. [52]
    She submitted that the plaintiff made eye contact with the first defendant and gestured across the road as an indication of her planned course of travel with the bin; made a reasonable assumption in the circumstances that the truck would move forward and not reverse; that she did keep a lookout because she moved backwards when it was apparent the truck was reversing; and her moving backwards was the quickest evasive action that she could have taken.

53. [53]
    Ms Keegan submitted that the plaintiff was not contributorily negligent and that the defendant had not discharged its onus of proof. However, she submitted that if contributory negligence was found it should be assessed at 10% - 20% and she referred to some comparative decisions in support of that apportionment.

Defendant

54. [54]
    Mr Green referred to the pleadings in the statement of claim, particularly paragraphs 6(f) to (i) and 7(a) to (f) and submitted that the plaintiff’s oral evidence was inconsistent with her case as pleaded in paragraph 6(a) to (d). He submitted that there was no evidence to support assertions that the truck began to reverse without warning or that it reversed at speed. The evidence was to the contrary. He submitted that by contrast the defence pleading in paragraphs 2(d)(v), (vi) and (vii) were established on the evidence. Hence he submitted that the defendant’s allegation that the incident was not in any way associated with the movement or driving of the truck and that it was caused by the plaintiff simply falling while walking backwards, was correct and supported a finding to that effect.

55. [55]
    He submitted that there was an element of “common human experience” in the taking of bins to the kerbside (without going onto the road); that the plaintiff would not have been able to see the truck come around the corner despite her assertion to that effect, that rather than getting out of the way of the reversing truck she moved closer to it; and that what she did was “not normal” behaviour. He referred to other aspects of the evidence involving the plaintiff’s manipulation of the bin as she stepped back and the bin rolling on her, as not making sense in the context described by her of the bin being on the roadway impeding the reversing vehicle, when it plainly was not so situated.

56. [56]
    He was critical of the plaintiff’s evidence in respect of “timings” and the “distance covered” on her journey to the kerbside and then to the roadway. He submitted that the first defendant’s understanding of the plaintiff’s personal situation at the house could only have come from a conversation with the plaintiff, which the plaintiff denied having occurred. He submitted that the plaintiff’s evidence was inconsistent in several respects including the path that she travelled, the reversing “without warning” and the plaintiff’s description of “pavement” and “kerb”. With respect to the first defendant’s statements he submitted they were not inconsistent other than for the most minor of variations.

57. [57]
    Mr Green made submissions about the findings that I should make on the evidence on the basis of his submissions. He submitted that if there was a finding of liability then it would be on the basis that the first defendant must have reversed the truck inappropriately. In that circumstance, the plaintiff would have been on the road and did not move away from the truck. This amounted to contributory negligence, to the extent he submitted, of 20%.

Discussion: liability

58. [58]
    The test for negligence is that expressed in Wyong Shire Council v Shirt (1980) 146 CLR 40.  The general standard of care is expressed in section 9(1) and (2) of the Civil Liability Act 2003. 

59. [59]
    The duty of the driver of a motor vehicle has been described in a number of authorities. In Manley v Alexander (2005) 80 ALJR 413, Gummow, Kirby & Hayne JJ wrote at [11]: 

“Driving requires reasonable attention to all that is happening on or near the roadway that may present a source of danger.  And much more often than not, that will require simultaneous attention to and consideration of, a number of different features of what is already, or may later become to be, ahead of the vehicle’s path.”

The same applies to what may be behind a reversing vehicle. 

60. [60]
    I find that the plaintiff was on the road and had to move back quickly to avoid being struck by the truck. Her heel hit the gutter edge and she fell onto the driveway. The plaintiff made eye contact with the first defendant, who reversed the truck rather than continuing in a forward direction.

61. [61]
    Whilst I have found that the truck reversed, it did not do so “at speed.” It had the reverse audible warning operating and the plaintiff was aware the truck had begun to reverse, at least by reason of the gear shift noise to which she referred in evidence, but she was already on the road.

62. [62]
    The plaintiff’s account of the incident was simple, although she did put herself in a position of risk by stepping on to the road when the truck may have gone either forward or reversed, depending on the reaction of the first defendant.

63. [63]
    I do not regard any inconsistency in the plaintiff’s evidence of her progression down and across the driveway, to the kerb as being material. That part of her journey is largely irrelevant and the critical evidence is what happened when she reached the kerb and a line of sight existed between her and the first defendant.

64. [64]
    The route taken by the plaintiff across the driveway to the kerb in the first instance is a detail that one might not expect the plaintiff to recall with precision, given what followed the reversing of the truck and her falls onto the driveway. Insofar as where she struck her heel – on her account of the incident – is concerned, the only logical place for that to have occurred is the edge of the driveway where it meets the gutter or the kerb at the right hand corner as one looks at the driveway from the road.

65. [65]
    The first defendant’s evidence in her several statements made to investigators and others was inconsistent in a number of respects. I was not impressed with her evidence.

66. [66]
    I do not accept the first defendant’s account of where the plaintiff was situated when first sighted by her. I accept the plaintiff’s account of making eye contact with the first defendant and gesturing toward the other side of the road. It seems to me that the first defendant naturally had a focus on driving and operating the truck, whereas the plaintiff’s focus was more about the bin and placing it where it could be emptied.

67. [67]
    The catching of the heel is unlikely to have taken place on the driveway per se because the surface does not suggest that there is any unevenness or height difference upon which a heel might be caught, whereas the gutter edge or join has that feature. There is no doubt that the gutter is below the kerb level at the end of the driveway and is continuous on each side of the driveway separating the kerb from the roadway.

68. [68]
    It is open to infer the reason for the plaintiff’s fall in the way that I have done so. That much is plain from what was written by Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at pp 304-305: 

“In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.  It is true that ‘you need only circumstances raising a more probable inference in favour of what is alleged’.  But ‘they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture’.  [Case reference is omitted.]  ‘All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence.  By more probable is meant no more than upon a balance of probability such an inference might reasonably be considered to have some greater degree of likelihood. But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others.  The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth at which the tribunal of fact may reasonably be satisfied.”

69. [69]
    The inference that I have drawn is plainly open on the evidence and more probable than not in my view.

70. [70]
    I do not agree with Mr Green’s submission that there was an “element of human experience” in the taking of bins to the kerb side, or that the plaintiff’s behaviour was not “normal.” To the contrary, I consider the plaintiff’s intended course of crossing the road – a cul-de-sac where the truck, if driven in a forward direction, would return down the road as a matter of course – to leave the bin as being not at all unreasonable. Of course, had the first defendant moved forward and followed the curve of the cul-de-sac to return down the opposite side of the road, she would have had the plaintiff readily within her forward vision.

71. [71]
    As for the “conversation” between the plaintiff and the first defendant, after the plaintiff had fallen, I do not accept the first defendant’s version of that event or how she acquired the information about the plaintiff that she said she had received in the conversation. Whilst the first defendant was able to recount some details about the plaintiff’s residency at the house in question, I do not need for the purposes my findings on liability to be satisfied as to how that information was acquired. It may well have been acquired through something said by the plaintiff, as was probably the case, but I do not accept that it was acquired in the way that the first defendant has described. Further, the issue about where the plaintiff was lying on the driveway when the QAS arrived is not clear. However, the mechanism of the falls as described by the plaintiff was, in a sense, a dynamic occurrence and I am satisfied that the plaintiff fell twice on the driveway after having clipped her heel on the gutter edge. She had been placed in the recovery position prior to the arrival of the QAS.

72. [72]
    Mr Green specifically referred to paragraphs 6(f) to (i) and 7(a) to (f) and had submitted that the plaintiff’s oral evidence was inconsistent with her amended statement of claim. He is correct in asserting that the allegation of reversing without warning and at speed have not literally been made out on the plaintiff’s evidence. However, the plaintiff simply refers to being aware that the truck was about to reverse by the gear shift noise, but not otherwise. I have accepted that the audible reversing warning was operating. However, speed is very much a matter of personal perception, particularly in circumstances of sudden or emergent danger.

73. [73]
    In my view, nothing turns on the matters in paragraph 6 of the amended statement of claim referred to by Mr Green and the plaintiff has, on my findings, made out the balance of those allegations. Insofar as paragraph 7 of the amended statement of claim is concerned, I find that the particulars (a) to (c) and (e) and (f) have been made out on the evidence that I have accepted.

74. [74]
    It follows that the plaintiff has proved on the balance of probabilities that the first defendant was negligent in her operation and control of the truck.

Resolution of the Liability issue

75. [75]
    On the findings of fact that I have made, the first defendant was negligent in her operation and control of the truck. Primary liability is thereby established. What remains with respect to liability is a consideration of the issue of contributory negligence, raised by the defendants.

Contributory negligence

76. [76]
    The defendants allege that, if the first defendant is found to have been negligent (which they deny), then the incident was caused by or contributed to by the plaintiff’s own negligence. The latter is particularised in the Defence as follows:

“(a) failing to keep any proper lookout;

(b) moving backward at an unsafe speed;

(c) failing to take any proper care for her own safety.”

77. [77]
    The burden of proof rests with the defendant to establish contributory negligence. The standard of care is expressed in section 23 of the Civil Liability Act 2003 (Qld) in the following terms:

“23 Standard of care in relation to contributory negligence

1. The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.
2. For that purpose—

1. the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
2. the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.”

78. [78]
    All that is necessary to establish a defence of contributory negligence is to prove that the plaintiff did not in her own interests take reasonable care of herself and contributed, by a want of care, to her own injury: Green v Hanson Construction Materials Pty Ltd [2007] QCA 260 at [32] and [30] respectively.

79. [79]
    The test of contributory negligence is an objective one. The plaintiff must exercise the standard of care expected of an ordinary reasonable person engaging in the conduct that would cause the plaintiff’s injury or damage. The analysis in the first instance involves determining the factual context of the relevant incident in determining the circumstances in which the plaintiff finds himself or herself and then to determine what he or she ought reasonably to have done for his or her own protection: Chandley v Roberts [2005] VSCA 273, at [22] and [24].

80. [80]
    The apportionment of liability where there is a finding of contributory negligence acts to reduce the damages recoverable “to the extent that the court considers just and equitable having regard to the claimant’s share in the responsibility for the damage”: section 10(1)(b) Law Reform Act 1995.

81. [81]
    The apportionment is a matter for the discretion of the court and involves essentially an assessment of comparative culpability between the plaintiff and the defendants and the significance of the conduct of the parties in causing the damage: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492. This involves an assessment of “the degree of departure from the standard of care of the reasonable man” and the relative importance of the acts of the parties in causing the damage:

“It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance”: per the Court at pages 532-533 [case citations omitted].

82. [82]
    The plaintiff had experience in her working life in the transport industry and was familiar with trucks. Her familiarity is highlighted by her evidence that she knew the truck was going to reverse by the gear shift noise, irrespective of whether she saw or heard other indications of the truck reversing. She had stepped out onto the road way, albeit with a view to crossing to the other side, behind the truck after she had attracted the attention of the driver. In doing so it seems to me that there was a real risk that the truck may reverse and she thereby placed herself in a position of potential risk of injury or damage. It would have been more reasonable for her to have remained at the kerbside until the truck moved either forward or in reverse before stepping out onto the road to cross to the other side.

83. [83]
    In view of that finding it seems to me that the second defendant has discharged it’s onus of establishing a degree of contributory negligence on the part of the plaintiff, by failing to take proper care for her own safety. The plaintiff made eye contact with the first defendant and gestured across the road. I am satisfied about that as a matter of fact. However, she seems to me to have then unrealistically assumed a forward movement of the truck. Nevertheless, she must have kept a lookout in doing so because she was able to move backwards with urgency when she realised the truck was in fact going to reverse rather than go forward. However, she had by then already placed herself in a position of risk.

84. [84]
    In my view the first defendant was more culpable than the plaintiff in the incident. She had seen the plaintiff in the rear vision mirror and irrespective of what arm movements were made by the plaintiff in expressing her intended course of action and whether or not they were seen by the first defendant. She reversed in circumstances where it was unnecessary to do so and created a significant risk of injury or damage to the plaintiff whom I have found was on the roadway at or near the rear of the truck. The prudent course would have been for her to move forward and around the cul-de-sac, return on the other side where she would have had a clear view of the plaintiff. She could well have waited in the course of that short distance, with the plaintiff in view, for the bin to be placed in a location where it could be picked up and emptied.

85. [85]
    To the extent that comparative decisions are of utility in determining an assessment of assessing contributory negligence in quantitative terms, there probably is no necessity to cite authority. However, I will make reference to Pennington v Norris (1956) 96 CLR 10 which is often cited in circumstances involving an assessment of respective or comparative liability. The Court held that the defendant and plaintiff were liable to the extent of 80:20 percent respectively. The plaintiff was a pedestrian and was struck by a motor vehicle driven by the defendant in a city street. The defendant had failed to keep a proper lookout. The plaintiff inferentially failed to take reasonable care for his own safety in crossing the road, however the defendant’s negligence was considered in a higher degree more culpable than the plaintiff. There were several factors including speed, the number of people in the vicinity, the wet condition of the road and a misty environment in the nighttime. Two pedestrians had crossed the road, including the plaintiff, and inferentially one relied on the other to keep a proper lookout in deciding to cross the road at the relevant point in time.

86. [86]
    It may be useful also to refer to Anikan v Sierra [2004] HCA 64 where a pedestrian dressed entirely in dark clothing (save for white stripes on the toes of his shoes) walked along a roadway at night and was struck by a bus. Negligence was apportioned at 25% to the pedestrian.

87. [87]
    In the circumstances I assess contributory negligence at 15%.

Quantum

Evidence on quantum

The plaintiff

88. [88]
    The plaintiff is aged 54 years (DOB 21 September, 1961). She is a separated mother of four adult children. She attained a grade 6 education, married at age 17 and for 20 years she and her husband (from whom she has more recently separated) operated a transport business in which she drove the trucks. After the business closed in or before 2007, she was employed in other capacities when work was available.

89. [89]
    The plaintiff said in testimony that she felt massive pain in the back and a bad headache after the incident. The pain became worse and her legs and feet were burning. After two weeks she went to see a doctor. In the incident she suffered pain and the coccyx and numbness and burning sensations in her legs.

90. [90]
    Subsequently, after the litigation was commenced, she consulted Dr Todman (for her lawyers) and Dr Weidmann (for the defendant’s lawyers). They each provided reports for the court and gave evidence in the trial.

91. [91]
    She said in testimony that the burning in her legs was in the front and in her heels. She did not know if Dr Weidmann had asked her if she had back pain prior to the accident or if she had answered “no”.

92. [92]
    Shortly before the incident she had been admitted to hospital suffering from a urinary tract infection. It and been reported that she had suffered dizziness. She denied any dizzy spells before the incident, only suffering that afterwards. She had been sick in the week before the incident and she agreed that the sick leave records must be correct in recording that she had leave from the 10 to 18 October, 2013 and for 2 hours on 28 October, 2013 and must have worked her shifts otherwise until she took leave on 12 December, 2013. She said her roster at the hospital was “seven days on”.

93. [93]
    She did have some symptomatology in her back and for several years had lower back pain. She managed those symptoms and was not prevented from working. She would attend on general practitioners for check-ups from time to time specifically in relation to her lower back. She said she had ongoing back pain since a fall when 14 years of age and had sought treatment from general practitioners.

94. [94]
    She believed she had arthritis in her back. In a statement made for the insurer in May 2015, she described her prior health status as involving lower back pain (a childhood accident). I note that Dr Weidmann also refers to that incident. She said that backache was caused by hard work and living in rough circumstances.

95. [95]
    Following the incident she did not see GPs on a regular basis about back pain. She required medication. She said the arthritis in her hands did not cause problems when lifting heavy items: “I’ve got arthritis right through them and they don’t … they pain, they ache, I can change a tyre, I can do anything when it comes to pain so, like, in my hands it doesn’t worry me.”

96. [96]
    She said she suffered discomfort and also depression, the latter brought on when her husband left her in 2010 and other personal issues within her family arose. She took anti-depressants but continued working. In October 2013 she had a kidney infection and was admitted for a few days to hospital. She had a back support brace which she wore when doing work that required lifting items.

97. [97]
    In the financial years prior to the incident she gave an account of her pre-injury employment. In the financial year ending 30 June 2010 she lived in Gympie and worked in aged care. In the financial year ending 30 June 2011 she was living in Gympie and then in Mackay and employed as a traffic controller (for which she had to pass a medical examination), sometimes working up to 16 hours per day. In the financial year ending 30 June 2012 she worked in traffic control in Rockhampton and then moved to Townsville where she had casual work as a canteen assistant and as a security officer at the rugby league ground.

98. [98]
    She had worked at traffic control and the medical test included squats, bending to the right and bending to the left. She worked in that area for three years. When she moved to Rockhampton she also worked traffic control and when she came to Townsville she did security work with the Cowboys Football Club.

99. [99]
    She did security work from 07 December 2012 to 30 June 2013. The Cowboys changed their security employer and so she moved from one to another. However, her security job ticket and her traffic supervisor ticket were not renewed when they expired post-injury.

100. [100]
     In July 2013 she obtained employment at the Townsville hospital as an operations service officer, having to pass an occupation therapy assessment, an induction course and several weeks training. Her duties included patient handling, cleaning, moving patients manually or with mechanical aides. She also did some casual house cleaning.

101. [101]
     When she took her hospital job she had to pass a medical examination. Prior to the accident she said that “I worked and I could do everything”. She used to take painkillers to deal with the back pain.

102. [102]
     Post-injury, she continued with the Townsville hospital job and became a full-time employee but did not continue with the casual security job. She said she struggled to perform her duties properly. She requested light duties from her hospital employer but did not explain to them why she was doing so, being concerned that her employment might be terminated. The hospital accommodated her request. She continues to work at the hospital, but now finds she has some limitations and the work is harder. She did lighter duties at the hospital. The symptoms got worse and she had to take Panadeine Forte, Lyrica and Panadol.

103. [103]
     She was made a permanent employee ‘because she worked well’. When she made the transition from casual to full-time work in 2015 she tried to avoid heavy lifting. However, she did push patients in wheelchairs, but in a way that took the pressure off her lower back (by leaning on the wheelchair handles with her arms). Her duties included patient handling, light sponge bathing of patients, dressing and cleaning and bed making and moving medical items such as blood specimens from place to place around the hospital. The pain in her lower back was constant and she had burning sensations in her heels with some sharp pains. She said she pushed through the pain and tried not to take sick leave from her employment. In cross-examination she agreed that she was a valued employee.

104. [104]
     Insofar as economic loss is concerned she always intended to continue to work to retirement and thinks she can work for a few more years yet, to age 60. She gave up the job in security because she had no energy to go on working there and it involved long periods of standing still which caused her pain. She claims a loss of income from the security work.

105. [105]
     So far as special damages are concerned she said she took two Panadol every three days or as otherwise required and Mycendol-forte weekly. She spent $30 per month on a box of Lyrica.

106. [106]
     Her future expenses include travel costs and medical fees (with respect to treatment) and participation in the physiotherapy program recommended by Dr Todman.

107. [107]
     She said in cross-examination that she had a lack of energy and she was not interested in pursuing treatment involving exercise (including Pilates): “I can hardly exercise as it is. I have never been one to exercise all me life.”

Dr Todman

108. [108]
     Dr Todman was informed by the plaintiff that prior to the injury she had enjoyed good health save for some occasional niggling back pains in the past but had no serious back injuries or sciatica. Dr Todman reported that the plaintiff’s CT head scan was normal and she had a scalp haematoma on the left side in the occipital region. The plaintiff informed him that she was off work for about 5 days and, while she had some headache, her main complaint concerned low back pain. She had reported a steady increase in her back symptoms in the two to three months following the incident and also began to experience numbness and pain in her legs. The back pain was aggravated by standing, sitting and lifting and affected her sleep. She reported pain extending to the left posterior thigh and calf with a burning discomfort and also some burning sensation in both feet.

109. [109]
     Dr Todman in the consultation reported the plaintiff walking with an antalgic gait and a 40% reduced forward flection and 20% lateral flection on each side. He reviewed an MRI scan of the lumbar spine (dated 26 April 2014) which showed an L5/S1 disc protrusion with an annular tear and mild spondylitis. Plain x-rays taken in the previous month (04 March 2014) showed some mild reduction in disc height at L5/S1. He reported that the MRI scan of the brain and CT brain scan were both normal.

110. [110]
     Dr Todman opined as follows:

“The injury as described is consistent with causing trauma to the lumbar spine. Structures that may be affected in this form of accident could include muscles, ligaments, facet joints and intervertebral discs. The disc protrusion at L5/S1 is likely to be related to this accident.

Prior to the injury she had only minor back complaints. It is unlikely that there was any serious back condition prior to this incident occurring.

---

The current symptoms have stabilised and are likely to represent a permanent state of affairs. From AMA 5 Guidelines Table 15.3, this is a DRE Category II injury; that is, clinical history and examination findings are compatible with a specific injury, namely chronic musculo-ligamentus strain to the lumbar spine and lumbar disc protrusion. This represents an 8% whole person impairment which is the upper part of the range of 5-8% based on the level of symptoms and effects on ADL’s as well as noting restricted movements and radicular complains.

The symptoms will continue to affect [the plaintiff] in day to day activities and employment. At work she is limited in the heavier physical tasks involved. Further, in the home environment she requires assistance for heavier domestic tasks and home maintenance of up to 3 hours per week.”

111. [111]
     He recommended physiotherapy and said that the plaintiff would also benefit from hydrotherapy, pilates and supervised gym work. He thought it unlikely that she would require surgery for the lumbar disc protrusion.

112. [112]
     Dr Todman in testimony referred to the x-rays and the MRI scan, in the following terms:

113. [113]
     The doctor referred to the plaintiff’s “antalgic gait” which he says was associated with pain. He said that the plaintiff suffered restrictions at work which would probably continue into the future. He commented on Dr Weidmann’s view of the history and said if there had been a two month delay between the incident and the onset of pain (which Dr Weidmann had originally reported), that there would be considerably less chance that the accident was responsible for the pain. He also said that Dr Weidmann in his report did not acknowledge any disc injury at L5/S1.

114. [114]
     In cross-examination Dr Todman said, as I recall, he was not aware that the plaintiff had suffered a fall when 14 years old. Insofar as sciatica was concerned there was not sufficient information for him to form an opinion. The plaintiff had suffered niggly back pain. She did not tell him that she suffered sciatica: sciatic pain typically was down the back of the legs or into the feet. He said that burning sensations down the back of the legs in the context of lower back pain would most likely be sciatic pain.

115. [115]
     With respect to the imaging, if there had been no imaging (that is MRI) of the disc protrusions prior to October 2013, it was not necessarily the case that there must have been one present prior to the incident. There was no prior MRI in her medical history.

116. [116]
     He thought that the hospital staff focus on the plaintiff’s admission after the incident was on her head injury.

117. [117]
     Dr Todman was asked a number of questions in cross-examination about entries in prior health and medical history documents but he did not have them readily available and was at a distinct disadvantage and consequently there really is nothing of assistance to me arising out of any cross-examination in that regard.

118. [118]
     However, he was able to respond to some questions about notes made by Dr Jayaran on 11 August 2011 (he thought perhaps that doctor was referring to an arthritic process) and Dr Gagiyar on 14 November 2011 [the comments “sounded like sciatica” but it could have been something else such as arthritis]. With respect to the x-rays in 2011, 2012 and 2013 he was of the view that there may or may not have been differences but expressed the view that reporters of radiology focused on what they thought was important and might report things differently. With respect to Dr Hazari, Dr Todman said that if one had bad enough pain, the patient would take analgesia. He thought the x-ray of 24 August 2012 was pretty much consistent with the others in 2012 and 2013.

119. [119]
     He spoke about disc protrusions, which did not show up on x-rays, and said that symptoms varied. An annular tear may later allow material to protrude and symptoms become worse.

120. [120]
     Whether or not the plaintiff had five days off work does not affect his opinion. He based his opinion on the severity of her back complaint.

Dr Weidmann

121. [121]
     In his report Dr Weidmann wrote that the plaintiff had informed him that problems with her back and legs became apparent about two months after the incident with the burning sensation in both legs. She told him the problem had slowly become worse. She informed him that for the last few years she has been told she has arthritis in her back but she denied any back pain.

122. [122]
     Dr Weidmann wrote, on examination of her lumbar spine in the consultation, that:

“…there was diffuse tenderness across the whole lumbar-sacral region in the mid-line. There was no muscle guarding or spasm. There was a moderate restriction in the range of back movements in all directions and on bending forwards she could reach just below her knees.”

123. [123]
     Dr Weidmann reviewed plain x-rays of the lumbar spine (dated 04 March 2014) which he said showed significant narrowing at L5/S1 with anterior osteophyte formation and perhaps a slight shift of L5 on S1; and an MRI of the lumbar spine (dated 26 April 2014) which showed significant degenerative changes at L5/S1 but no disc protrusion.

124. [124]
     He was also informed by a Townsville hospital record of 04 March 2014 that the plaintiff had when aged 14 years fallen down some stairs and had ongoing arthritic lower lumbar spine. He said the radiologically changes were all of a degenerative nature and would have predated the incident. Her condition may or may not have been symptomatic.

125. [125]
     Dr Weidmann hat the most likely diagnosis of the plaintiff’s injury was an aggravation of a pre-existing degenerative condition of the lumbar spine. This was consistent with a fall on to her buttocks. He considered that the effects of the aggravation would have likely resolved over a few months at most and that any persisting symptoms were due to pre-existing and persisting degenerative condition.

126. [126]
     He considered the plaintiff would remain independent in normal activities of daily living and did not require any special aids or devices. She did not require formal domestic assistance at home. Any limitations of current or future employment would be due to the underlying degenerative condition and not materially related to the incident.

127. [127]
     Dr Weidmann considered the plaintiff met the criteria for DRE Category 1 in that there were no significant clinical findings, no observed muscle guarding or spasm, no documentable neurological impairment and no documented alteration in structural integrity. He did not consider that she met the criteria for DRE Category II injury. Accordingly, there was a 0% impairment of the whole person.

128. [128]
     Dr Weidmann spoke of the MRI in April 2014 and said that it showed degenerative changes at L5/S1. There was a disc protrusion with osteophyte formation. However, he thought the disc protrusion was anterior rather than posterior and therefore considered it was more likely to have degenerative origin. He agreed that there was a disc protrusion although conceded that in his report he had said that there was no disc protrusion. He considered the plaintiff had a pre-existing degenerative condition which had been aggravated by the incident and which would have settled in a few months. He described “aggravation” as a permanent worsening and said it was to be contrasted with “exacerbation” which was temporary. He said that it was difficult to quantify such things.

129. [129]
     In cross-examination he qualified his report where it referred to no “significant pain” immediately after the incident, but pain became more of an issue later with burning in the legs. He said even the delay of a few days would suggest that the injury was not that major.

130. [130]
     However, Dr Weidman accepted that three weeks after the incident the plaintiff had significant symptoms. He accepted the plaintiff had been complaining of pain well before the two month period he refers to in his report as being a period of “delay”. He said the incident may have aggravated the disc protrusion but did not cause it. He agreed that there were increased attendances post-incident to her doctor, compared to sporadic attendances before that time.

131. [131]
     He said falling onto one’s tailbone could certainly have the potential of causing back problems.

132. [132]
     The effect of a “minor permanent aggravation” can differ from individual to individual and could possibly have quite serious impact on one person, but not necessarily on another.

Mrs Archer

133. [133]
     This lady was a work colleague of the plaintiff at the Townsville Hospital. Her evidence is essentially a “before and after” comparison. She said that the plaintiff used to do the full range of tasks including pushing beds and people in wheelchairs and cleaning at heights, prior to the incident. After that however the plaintiff had trouble lifting and bending over and getting up from a low position and was not climbing ladders, she had done previously. She would have seen the plaintiff at least 20 times in a month. She saw her more often pre-accident because she was doing patient handling at that time.

134. [134]
     In cross-examination she said that she did not regularly see the plaintiff now. However she had seen the plaintiff in pain and struggling or crying, which she had not done before the incident occurred.

Submissions on quantum

Plaintiff

135. [135]
     Ms Keegan referred to the injuries suffered by the plaintiff as alleged in the statement of claim and to the difference in the position of the parties as to whether there was a L5/S1 disc protrusion or an aggravation of a pre-existing degenerative change in the lumbar spine, as a consequence of her fall. She submitted that Dr Weidmann’s opinion about a disc protrusion had changed in the course of his oral evidence, as had his assertion that there had been a two month delay between the date of incident and the plaintiff’s first claim that she had a back problem.

136. [136]
     The fall that the plaintiff suffered was on the evidence, a “hard fall”. She submitted that the existence of a painful back condition post-incident was well documented in Queensland Ambulance Service and Townsville Hospital Emergency Department records and in medical centre records. Appropriate medication for treatment of her painful condition had been prescribed.

137. [137]
     She submitted that prior to the incident the plaintiff did not have severe back pain per se although she had anxiety about arthritic pain in the back. An x-ray in 2011 revealed only some narrowing of the L4/5 and L5/S1 disc spaces. Whilst the plaintiff suffered tenderness in the lumbar area when she worked as a traffic controller there was no indication of any more serious lower back problem.

138. [138]
     She submitted that the court should prefer the evidence of Dr Todman to that of Dr Weidmann, particularly with respect to Dr Todman’s evidence that most disc protrusions are associated with preceding trauma and only occur spontaneously in the minority of cases; and that the severity of symptoms of a traumatic disc prolapse could evolve in time, because symptoms varied and often the protrusion was associated with an annular tear, which with movement over time would lead to further protrusion and a worsening of symptoms.

139. [139]
     Ms Keegan submitted that Dr Todman’s opinion that the injury suffered was a DRE Category II injury and an 8% whole person impairment should be accepted. Her submissions referred to general damages, past economic loss from casual employment as a security person for the Cowboys Rugby League games with a sum for past loss of past superannuation; and future economic loss including a loss of superannuation, in a globally assessed sum which reflected her reduced capacity to work due to her pain and despite her motivation to work and her good work history. She submitted that there was no reason to conclude that she would not have worked until planned retirement age of 67 years. There were nominal sums submitted in respect of past special damages, future special damages and interest.

Defendant

140. [140]
     Mr Green submitted that the appropriate basis of assessment was for a minor lumbar spinal injury at an ISV of 0 to 4, with an uplift to 5. This reflected a diagnosis of an aggravation of a pre-existing lumbar spinal degeneration in accordance with Dr Weidmann’s opinion.

141. [141]
     He submitted that Dr Weidmann’s report should be preferred to that of Dr Todman. He was critical of Dr Todman for what he submits was “vagueness and evasion” in his evidence.

142. [142]
     Mr Green referred to the delay in onset of pain in the back and that the plaintiff did not take leave but rather continued to work substantially after the incident. He was critical of Dr Todman’s asserted failure to make appropriate concessions and his reluctance to accept the opinions expressed by general practitioners and others in the past.

143. [143]
     He submitted that evidence of no initial complaint about back pain or requirement for analgesic treatment was inconsistent with the doctor’s evidence of a disc protrusion from traumatic injury. By contrast, he submitted that Dr Weidmann made appropriate concessions and made more responsive answers in his evidence.

144. [144]
     Mr Green submitted that no allowance should be made for past economic loss, the plaintiff having worked essentially without leave being taken and without apparent inability to do work tasks following the incident. He submitted that those matters were equally relevant to future economic loss, which could only be assessed on a global basis. He referred to the plaintiff’s current work regime which was full time employment and was generating income at the highest level in her work history. He submitted this was inconsistent with any assertion that she was unable to work to normal retirement age. Insofar as future needs were concerned he submitted that a nominal sum was all that was warranted on the evidence.

Discussion: quantum

145. [145]
     I find that the plaintiff was substantially fully employed through most of her life and had a good work ethic. She was stoic with respect to painful conditions and in my view that explains her commitment to continue to work despite pain issues and her absence of leave taken from work following the incident until December 2013, some six weeks later; and her irregular attendances upon general practitioners in respect to her back.

146. [146]
     While she had lower back symptoms pre-incident, they were manageable and did not prevent her from working. She had a fall when she was a teenager that may have precipitated some symptomatology and her hard work and rough living circumstances contributed further to that. Her statement to Dr Weidman that she had no pain pre-incident in my view reflects that stoicism.

147. [147]
     Whether she wore a back brace post-incident or not is immaterial and while she alone refers to having one I am prepared to accept her evidence about that. Her work at traffic control and the casual security person work (the latter to some extent), involved standing for long periods. Any pre-existing aches or pain in her back would be increased, at least temporarily, by those work activities.

148. [148]
     I infer that the hospital regarded her as a good worker and an employee worth supporting, despite her request for light duties and the limitations she experienced in her work role.

149. [149]
     I find that the plaintiff suffered an L5/S1 disc protrusion with an annular tear and mild spondiolitis and was caused in the incident.

150. [150]
     The plaintiff fell heavily onto the driveway onto her buttocks.

151. [151]
     The concessions made in oral evidence (or the resiling from previous opinions expressed) by Dr Weidman about a three week delay in symptomatology and the presence of a disc protrusion, the difficulty of quantifying (or distinguishing perhaps) “aggravation” and “exacerbation” and the difference between individuals with respect to coping with pain, persuade me that Dr Todman’s opinions are more reliable and accurately represent the physiological status of the plaintiff post-incident.

152. [152]
     Whilst Dr Todman attracted criticism from Mr Green (to which I have referred, supra) with respect to his oral evidence, the doctor was at a distinct disadvantage in cross-examination because he did not have the records to which Mr Green was referring in some detail. I made that very observation in the course of the hearing. It is difficult to answer questions or state an opinion without a document which gives contextual information to an extracted or cited passage taken from a document.

153. [153]
     Therefore I reject the criticism of Dr Todman in respect of the quality of his oral evidence. I accept that the plaintiff suffered an injury that caused her severe back pain. I accept the evidence of Mrs Archer about how that manifested itself in the plaintiff’s behaviour in the workplace.

154. [154]
     I accept Dr Todman’s evidence that the symptomatology of disc protrusions varied; that an annular tear may later allow material to protrude and symptoms to become worse; that disc protrusions only occur spontaneously in a minority of cases; and that the plaintiff’s symptomatology was related to the incident and was not a temporary aggravation of a pre-existing condition.

Assessment of quantum

155. [155]
     Having accepted the evidence of Dr Todman about the injury as a DRE Category II injury, an 8% WPI, the injury is an item 93 Civil Liability Regulation Injury (a moderate permanent impairment - disc protrusion, and continuing symptoms). This is an ISV 10 injury in my view and applying the variable scale general damages are assessed at $14,850.

156. [156]
     I calculate past loss of income on the basis of 1.5 years (that is football seasons) loss arising from the plaintiff’s inability to work casually as a cowboys home game security person. She earned $3,305 in the 2012/2013 in this job. The loss cannot be calculated with precision and really falls to be assessed globally: section 55 Civil Liability Act 2003; McDonald v FAI Insurance Co Ltd [1995] QCA 436; Nicholls v Curtis & Anor [2010] QCA 303. I assess past loss of income at $4,000.

157. [157]
     The rate of past superannuation is agreed at 9.25%. I assess this head of damage at $4,000 x 9.25% x 1.5years: that is, an assessment of $555.00.

158. [158]
     Future economic loss similarly cannot be calculated with precision and is realistically only assessable as a global sum: s 55 Civil Liability Act 2003: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 as applied in Ballesteros v Chidlow & Anor [2006] QCA 323, at [39].

159. [159]
     The plaintiff was 54 years of age at the time of trial (date of birth 21 September 1961) and said she would have liked to work for a further three or four years, to perhaps age 60 years. Her retirement age is calculated at 67 years on the Tables. She is currently earning a high income, in relative terms in her employment history, at about $51,000 per annum (in mid-2016). She has the support of an employer that is prepared to make allowances for her disability. Accordingly, whilst she may face some difficulties I am satisfied on the evidence that she is capable of working to age 60 at least, perhaps beyond that age. I assess future economic loss in the sum of $80,000.00, taking into account contingencies as referred to in the evidence.

160. [160]
     Future loss of superannuation is at an agreed rate of 10.33%. I assess this at ($80,000 x 10.33%) $8,264.00.

161. [161]
     Past special damages are agreed at $1,630.55: Medicare refund $1,130.55 and a globally assessed sum of $500 for analgesic medication.

162. [162]
     Interest on past special damages is agreed at 1.41%. ($500 x 1.41% x 2.6 years). Interest is $18.33.

163. [163]
     Future special damages should be assessed in a modest global sum. The plaintiff will have an ongoing need for analgesic medication and Dr Todman had recommended various forms of exercise. However, the plaintiff expressed no past or future interest in exercise per se. Ms Keegan distinguished ‘physical activity’, as between recreational activity and therapeutic activity. However, on the evidence it seems to me that the plaintiff would most probably not have acted on the recommendations to the extent that they were made, but she may benefit from and be prepared to undertake some form of therapeutic activity to assist in the relief of her back pain symptoms. I will make an allowance of $2,500.00 for that and $500 for analgesics for a total of $3,000.00.

164. [164]
     Accordingly, damages in summary are assessed as per the Table that follows:

Costs

165. [165]
     The plaintiff has primarily and substantially succeeded in the proceeding. She should have her costs paid by the second defendant.