Kim v Liu[2017] QDC 167

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Ms Soogyung Kim was a passenger in a car which was involved in an accident on 22 July 2015.  She was almost 25 at the time.  The car was driven by the first defendant, and covered by a policy of insurance with the second defendant.  By this proceeding, Ms Kim seeks to recover damages for injuries she says she suffered in that accident, and consequential other losses.  It is admitted the accident was caused by the first defendant’s negligence.  The issues in dispute in this matter are:

   1. (a)
      the nature and extent of any injury suffered by Ms Kim as a result of the accident; and
   2. (b)
      what damages ought to be awarded to Ms Kim.

The nature and extent of injury suffered by Ms Kim as a result of the accident

2. [2]
   Although the defendants initially denied that Ms Kim suffered any injury in the accident, that position was not maintained at the trial.  Having regard to the following evidence that was an appropriate concession to make.
3. [3]
   Ms Kim, who is Korean and speaks limited English, gave evidence through an interpreter.  She said that she was shocked and flustered after the accident; felt nauseous; that her neck and lower back hurt; and she had a bruised knee because it hit the “radio box” at the time of the impact.
4. [4]
   About two days after the accident, Ms Kim went to see a doctor.  There were no records from that doctor in evidence, but the attendance was admitted as part of the agreed out of pocket expenses.^[1]Ms Kim said she was given some painkillers.
5. [5]
   After that she asked an acquaintance what people usually do after a traffic accident in Australia, and that acquaintance referred her to her current solicitor.   After seeing the solicitor she went to see another doctor, Dr Kang, on 29 July 2015.
6. [6]
   Dr Kang’s notes record that Ms Kim referred to an accident that occurred on 22 July, and complained of “gradual onset of neck right shoulder/wrist/ankle/lower back/tinnitus since”.  The reason for the visit is recorded as “whiplash”.  She was prescribed Celebrex, advised to return for review in one month and to undertake physiotherapy.^[2]
7. [7]
   Ms Kim did not return to see Dr Kang.  In fact she did not see any other doctor in Australia.  She did however undertake physiotherapy fairly regularly up until February 2016, when she returned to Korea.  The notes from the physiotherapist^[3]record, among other things, Ms Kim complaining that her back and neck pain was worse after “intense study sessions”.  The notes indicate there was some improvement as the physiotherapy sessions progressed, although there is fluctuation in what is recorded, between improvement and ongoing pain in the neck and back.  Ms Kim was recorded as reporting “occasional” pain in her knee in January 2016.
8. [8]
   Ms Kim said she was taking Panadol during this time, about “two, three times a week, especially if I was having my period”.   She said she reduced that (it was not clear whether she meant she stopped taking any medication, or reduced it below this level); not because she was not in pain, but because she was scared of becoming addicted.^[4]
9. [9]
   At the time of the accident, Ms Kim was in Australia on a study visa, studying English.  Ms Kim said the injuries she sustained in the accident impacted on her studies, because she could not sit for long periods of time and had trouble concentrating due to severe headaches.  Her evidence was that “at the time, there was a test at the school I was studying at and I remember my test scores were not very good”.^[5]
10. [10]
    Other evidence demonstrates that Ms Kim did two separate English courses in 2015 with the Queensland Academy of Technology.  She arrived in Australia on a temporary student visa in about January 2015.   The first course, a Certificate III in Spoken and Written English, was a 25 week course from 6 January to 26 June 2015.  A letter from QAT said Ms Kim’s “attendance is satisfactory”.^[6]After the accident, she went on to complete a Certificate IV in Spoken and Written English – Further Studies, from 18 August 2015 to 5 February 2016.  Again, a letter from QAT said Ms Kim’s “attendance is satisfactory”.^[7]
11. [11]
    It is clear from that evidence that Ms Kim was not engaged in her studies from 26 June to 18 August 2015, with the accident occurring in the middle of that period, on 22 July.  Ms Kim’s evidence that she was immediately affected by the accident in her ability to carry out her studies, and there being an impact on a test at the time, is inconsistent with this.  So too is her report to Dr Wallace that she had a week off from her studies after the accident, before returning.^[8]
12. [12]
    Ms Kim returned to Korea in February 2016.  Upon her return to Korea Ms Kim said she received more physiotherapy treatment and “herbal medicine”; she also referred to “ultra red therapy” and acupuncture.^[9]Ms Kim seemed to indicate she had seen an orthopaedic surgeon, or surgeon, shortly after she arrived back in Korea, and after that had physiotherapy.  She said she would have a “quick chat” with the orthopaedic surgeon about how she was doing, when she went for physiotherapy.^[10]She agreed she had not seen a doctor since May 2016.  No records from any doctor or physiotherapist in Korea were tendered in evidence.
13. [13]
    The agreed out of pocket expenses (exhibit 1) includes reference to five attendances at the “Doan Neurosurgery Clinic”, which I infer relates to the physiotherapy.  The last attendance was on 12 May 2016.  Although Ms Kim said she received this treatment “about once a week” up to July 2016, that is not borne out by exhibit 1.  She said she stopped this treatment because a doctor in Korea told her it was “meaningless to continue”.  Although Ms Kim alluded to being told by a Korean doctor about another “more expensive treatment” that she could have, there was no evidence before me about what that treatment was; how it might be said to relate to or be beneficial for her accident caused injuries; nor was it raised with any of the medical experts who gave evidence (none of whom identified any further medical treatment as necessary or appropriate).  
14. [14]
    Ms Kim said that she still takes medication, “when I’m in pain”.^[11]It was not clear from the evidence what that medication was (but I infer it is similar to Panadol).  Ms Kim did not say how frequently or how much of that medication she takes.
15. [15]
    Ms Kim came back to Australia in late July/early August 2016 to be seen by three specialists for medico-legal assessment.

Dr Wallace

16. [16]
    The first was Dr Wallace, an orthopaedic surgeon, who saw Ms Kim on 27 July 2016. 
17. [17]
    In his report,^[12]under “current symptoms”, he said:

“Your client states that she has posterior cervical spinal pain on the right side radiating to the right trapezius and right peri-scapular musculature.   She states that she has radiation of the pain into the right upper limb as far as the wrist.  This is not typical of radicular pain^[13]and there is no paraesthesia.  She gets right sided sub-occipital headaches.  The neck pain is worse with sustained postures and she has restriction of motion and some nocturnal pain.”

18. [18]
    In his oral evidence, when asked what Ms Kim actually reported, Dr Wallace said that Ms Kim, speaking through an interpreter, described pain on the right side of her cervical spine, radiating to the shoulder blade and along the top of the shoulder, then to the right arm and down to the right wrist, with pins and needles and tingling associated with headaches.^[14]He said in his oral evidence that he had not included in his report her description of radiation down to the wrist – although it seems from the passage just quoted that he has.   What he has not referred to is the reference to pins and needles and tingling.^[15]However, somewhat confusingly, he expressly states in the report that “there is no paraesthesia” – which I understand to mean pins and needles. 
19. [19]
    Dr Wallace recorded that Ms Kim also suffers from “mechanical lower back pain, worse with prolonged sitting, any bending, lifting or twisting”.    He agreed that, other than some tenderness, on his examination there were no abnormalities in her lumbar spine.^[16]
20. [20]
    Dr Wallace recorded the following on the basis of his examination:

“She walked with a symmetrical gait and there was no spinal deformity.

Examination of the cervical spine revealed right para-vertebral muscle tenderness and tenderness in the right trapezius and right peri-scapular region, particularly about the superior angle of the right scapula.  She had normal forward flexion and extension in the cervical spine.  Lateral flexion and rotation to left and right was symmetrical.

Examination of the lumbar spine revealed tenderness across the lumbosacral junction.  She had a full range of motion in forward flexion and extension and lateral flexion to left and right was symmetrical.

…

Examination of the right knee revealed no effusion, good quadriceps tone, a full range of motion and no ligamentous instability.  There was some patellofemoral pain on compression and a positive Clarke’s test.”

21. [21]
    Dr Wallace confirmed in his oral evidence that in terms of his finding of tenderness, that was a subjective matter, informed by the patient; and that his observations of normal forward flexion and extension in the cervical spine, and symmetrical lateral flexion and rotation, were consistent with a normal cervical spine.  However, he added, in his oral evidence, that there “was some restriction of motion but it was symmetrical”, another matter he did not set out in his report.^[17]Dr Wallace observed no muscle guarding or spasm.^[18]
22. [22]
    Dr Wallace assessed Ms Kim as having a DRE cervical category II impairment, according to table 15.5 of the AMA Guides.  He attributed a 7% whole person impairment, inclusive of headaches.  In his oral evidence, he explained that this was on the basis of radiation of the pain into the proximal right upper limb.
23. [23]
    In relation to the lumbar spine, Dr Wallace assessed a DRE thoracic category I impairment, using table 15.3 (which results in a 0% whole body impairment), but then attributed a 3% impairment, on the basis of “a disability due to pain in the lumbar spine”, using chapter 18.^[19]
24. [24]
    He also assessed Ms Kim as having a 2% whole body impairment, for her right knee, using table 17.31.

Dr Campbell

25. [25]
    Dr Campbell, a neurosurgeon, saw Ms Kim five days later, on 1 August 2016.  In his report,^[20]he noted that Ms Kim “continues to complain of” neck pain/stiffness, lower back pain/stiffness and intermittent right knee pain.  He recorded that the neck pain is her most concerning symptom, occurring daily and being mild to moderate in nature with occasional severe exacerbations.  He recorded that the lower back pain occurs most days of the week.  He recorded that the neck pain and lower back pain “are aggravated by wet/cold weather, lifting weights greater than 10 kg, bending to pick up items from the floor, looking up to perform overhead work, sudden movements, prolonged sitting, computer work and long distance car/plane travel”.  He recorded that she is “restricted with her leisure activity of yoga as a result of her injuries”.
26. [26]
    Dr Campbell’s clinical examination included:

“Examination of the cervical spine and lumbar spine revealed a full range of movements although there was pain at the extremity of movement.  There was tenderness and guarding over the cervical paraspinal muscles bilaterally.  There was central lumbar tenderness and guarding.  The upper limb and lower limb power, reflexes and sensation were normal.”

27. [27]
    Ms Kim made no complaint to Dr Campbell of pins and needles, or radiation of pain down her arm. 
28. [28]
    Dr Campbell diagnosed her as having suffered the following injuries, which he regarded as causally linked to the accident, due to Ms Kim’s report that she developed symptoms within 24 hours:

“1. Whiplash injury, cervical spine and lumbar spine.

2.  Right knee injury.”

29. [29]
    Dr Campbell’s opinion in relation to the extent of impairment as a result of these injuries was as follows:

“Miss Kim has ongoing neck pain and lower back pain most days of the week.  Examination revealed regional tenderness and guarding.  In accordance with the AMA Guides, Chapter 18, she is suffering a 3% Whole Person Impairment for the cervical spine injury and a 3% Whole Person Impairment for the lumbar spine injury.”

30. [30]
    In his oral evidence, in terms of categorising her injury for the purposes of the AMA Guides, chapter 15, Dr Campbell explained that because he found Ms Kim had a full range of movements, even though he found there was some tenderness and guarding, he could not put her in the DRE cervical category II.  But nor did he consider she qualified for the DRE I category, which applies where there is no significant clinical find.  Since there is no range between DRE I (0% impairment) and DRE II (5-8% impairment), he used chapter 18 (dealing with pain) as a guide in reaching his assessment of her level of impairment.   In that context, he considered that she had “symptoms and signs that can plausibly be attributed to a well-defined medical condition”.^[21]He acknowledged that Ms Kim’s complaints of pain cannot be verified by any objective testing.  He also acknowledged that there is some conflict within chapter 18 itself, in terms of whether Ms Kim’s injury can be classified there, but said in the end, they are guides, not ideal, but the “best thing we’ve got”.^[22]

Dr Boys

31. [31]
    Dr Boys, an orthopaedic surgeon, saw Ms Kim on 3 August 2016.  In his report,^[23]he records Ms Kim describing “intermittent basicervical strain and symptoms and sensations of stiffness of the musculature of the neck with intermittent headache”, but relating no restriction of movement of the neck and no upper limb pain, paraesthesia or numbness.  She reported no radicular complaints in the lower limbs.
32. [32]
    Dr Boys also recorded that Ms Kim complained of central low back strain, describing this as “postural in nature with discomfort across the lumbosacral junction experienced with protracted sitting”, but also “[a] degree of lumbar strain … experienced with prolonged recumbency [ie lying down], settling with movement”.   He recorded that she related a sitting tolerance of approximately 20 minutes, and “unrestricted standing capacities although she moves to maintain comfort”. 
33. [33]
    He recorded that her right knee is now asymptomatic other than occasional momentary anterior strain symptoms with use of stairs or in bad weather.
34. [34]
    Ms Kim told Dr Boys that she remains active with yoga and walks for exercise.^[24]
35. [35]
    Dr Boys’ examination found that Ms Kim had an “excellent range of motion evident within the cervical and thoracolumbar spines”, noting that she attributes this to her yoga exercises. 
36. [36]
    In his report, Dr Boys expressed the opinion that:

“This lady currently experiences local muscular strain symptoms referable to the neck, right scapula and lower back.  This lady’s current complaints would appear to reflect local simple muscle strain and occur in the context of a completely normal physical examination.  An ongoing level of complaint is described subsequent to the motor vehicle accident of the 22.7.2015.

Specific to this lady’s examination this lady has a full range of motion of the cervical and thoracolumbar spines without evidence of radiculopathy.  Examination of the right shoulder, right wrist, right knee and right ankle show no objective impairment.”

37. [37]
    Dr Boys assessed Ms Kim as having 0% whole person impairment.  He accepts that she suffered an injury, based on the continuity of her complaint from the time of the accident; but he said he could find no evidence of any ongoing effect of that injury at the time of his examination.^[25]
38. [38]
    Dr Boys takes a different view of the proper interpretation of the AMA Guides to that of Dr Wallace and Dr Campbell.  He does not regard the use of chapter 18 as appropriate in Ms Kim’s case, firstly because once the “injury” is categorised within the appropriate DRE category under chapter 15, that is intended to capture associated pain, and so you cannot then go to chapter 18 and separately assess pain; and in any event, chapter 18 is to be used for assessing rateable pain which is severe and otherwise unexplained, which does not apply to Ms Kim.^[26]

Ms Kim’s evidence

39. [39]
    When asked about her symptoms now, Ms Kim said her neck hurts, which leads to headaches; and said that before rain or when she gets her period her whole body aches.  She also said she gets pins and needles in her neck, shoulder and arm.   She said mostly her neck and lower back hurt the most, and they hurt more when she has to stand for long periods of time.  She did not initially volunteer anything about her knee, but when pressed she said it also hurts a lot when she has been standing for a long time or when it is raining.^[27]
40. [40]
    Ms Kim said that whereas prior to the accident she would go to the movies a lot with her friends and have drinks as well, now she is not strong enough so she mostly stays at home.  She said she gets too tired from her working week, and just rests on the weekend in order to prepare for the next week.  Although later she said she believes her injuries impact all aspects of her life because “unless I’m somebody who just stays home and lies in bed all the time.  I have to go out, I have to meet people and do stuff, so it does impact all aspects”,^[28]which is inconsistent with her earlier assertion that she mostly stays at home.
41. [41]
    Ms Kim said that prior to coming to Australia, in Korea she did yoga, pilates and hiking.  When she was in Australia, Ms Kim said initially she liked walking in South Bank and every day after working at the chicken factory, she would go to the gym.  She said she no longer did those things after the accident.  But she did not describe any particular activities she had participated in on her return to Australia on the study visa, prior to the accident. 
42. [42]
    Consistently with what she told Dr Boys and Dr Campbell, Ms Kim said she currently does yoga, by watching yoga videos on YouTube.  As already noted, she also agreed that she told Dr Boys she remains active by walking.
43. [43]
    Ms Kim currently works as an English tutor at a school in Korea, with children aged 4 to 6 years old.  Ms Kim says she has difficulties at work because the children are in her care from 9am to 3pm and she has to stay standing apart from break time; her neck hurts a lot; and sometimes she is required to move things or do some heavy lifting.  She emphasised that having to stand for long periods of time causes her difficulty.  Carrying the food to the classroom and distributing it at lunchtime, and bending over the low desks when helping students, is also difficult.
44. [44]
    In her evidence, Ms Kim emphasised the difficulties she has with standing.  Seeing her in August 2016 Dr Boys said “she relates unrestricted standing capacities”.  Her complaints to Dr Campbell were associated with sitting to perform desktop work and computer work (he also noted she was continuing to study English at that time).  She also reported to Dr Wallace that her pain was worse with prolonged sitting, although he still regarded her as suited to work in a sedentary or supervisory capacity (provided she had the opportunity to get up and stretch and move around), and as able to finish her studies.
45. [45]
    Notwithstanding her description of ongoing symptoms, Ms Kim has not seen a doctor (other than the experts in this case) or obtained any other treatment since May 2016;^[29]and only sometimes takes what I infer is the equivalent of Panadol, although it is unclear how often, and in circumstances described as also relating to having her period.  These matters are not consistent with the level of ongoing discomfort she asserts.

Findings in relation to the nature and extent of the injuries

46. [46]
    On the basis of the medical evidence, I find that, as a result of the accident, Ms Kim suffered a whiplash injury to her cervical spine and lumbar spine, and an injury to her right knee.
47. [47]
    I prefer the evidence of Dr Campbell and Dr Boys that as at August 2016 she had a full range of movement in her cervical spine and lumbar spine, but no radicular pain.  I accept that at that time she was reporting some ongoing stiffness/pain in her neck and lower back, and intermittent pain in her knee.  I have concerns about the reliability of Dr Wallace’s report, given the issues raised above; and in circumstances where, within a very short space of time, Dr Campbell and Dr Boys’ observations are fairly consistent, but there are marked differences in comparison to Dr Wallace’s, I am not persuaded by his opinion as to the extent of Ms Kim’s impairment.
48. [48]
    I do not consider it necessary to resolve the question of construction of the AMA Guides posed by Dr Boys.   I can see the logic of Dr Boys’ argument; and yet I also find Dr Campbell’s reasoning persuasive.^[30]At the end of the day, the findings I need to make are in terms of the nature and extent of the injury suffered, and the level of adverse impact of the injury on Ms Kim, in order to assess the appropriate injury scale value (ISV) under the legislation, for the purposes of determining the damages to be awarded.  The medical assessment of a whole person impairment percentage, based on criteria in the AMA guides, is relevant to the court’s task, but not determinative.^[31]
49. [49]
    In terms of Ms Kim’s evidence, although I do not consider she was a deliberately untruthful witness, and I am conscious also of the difficulties of giving evidence through an interpreter, there are sufficient anomalies within her own evidence (which are referred to in these reasons), and as between her evidence and that of the expert doctors, in terms of what she told them, to make me question, in some respects, the reliability of her evidence.^[32]
50. [50]
    I accept that Ms Kim has some ongoing pain in her neck and lower back; and possibly in her knee (although I am less persuaded about that).  I am not, however, persuaded by Ms Kim’s evidence as to the level of discomfort, or the impact that she suggests this has on her, in respect of which I consider there was a fair degree of overstatement. 
51. [51]
    In the circumstances, the absence of supporting evidence for some of Ms Kim’s assertions is problematic.   As will be explained below, this is particularly so in relation to her claim for economic loss.

What damages are recoverable?

General damages

52. [52]
    On the basis of the evidence, and the findings I have made above, I accept that Ms Kim’s accident caused injuries are appropriately classified, according to schedule 4 of the Civil Liability Regulation 2014, as follows:

    1. (a)
       For the whiplash injury to her cervical spine, item 89 (minor cervical spine injury).  I note the ISV range for this item is 0 to 4.  I do not accept the submission on behalf of Ms Kim that item 88 (moderate cervical spine injury) is appropriate, given the absence of objective evidence in support of any impairment.  In this respect, I am not persuaded that Dr Campbell’s reference to tenderness and guarding provides such objective evidence.^[33]
    2. (b)
       For the whiplash injury to her lumbar spine, item 94 (minor lumbar spine injury).  The ISV range for this item is also 0 to 4.  The parties were in agreement about this.
    3. (c)
       For the knee injury, item 140 (minor knee injury).  The ISV range for this item is 0 to 5.  The parties were also in agreement about this.
53. [53]
    As there are multiple injuries, it is appropriate to consider ss 3 and 4 of schedule 3 to the Regulation.   Having regard to the definition of “dominant injury” in schedule 8 to the Regulation, although it is somewhat counterintuitive in the context of this case, the knee injury is the dominant injury, because it has the highest ISV range.
54. [54]
    I propose to assess the ISV for Ms Kim’s multiple injuries as 6.   I am satisfied it is appropriate, in reflecting the level of impact of these injuries on Ms Kim, to increase the ISV slightly above the maximum dominant ISV (see s 4(2) and 3(b) of schedule 3 to the Regulation).
55. [55]
    Applying the relevant value from table 7, schedule 7 to the Regulation, the award for general damages will be $8,910.
56. [56]
    She is also entitled to interest on the general damages.

Out of pocket expenses

57. [57]
    Out of pocket expenses have been agreed in the amount of $891.97 (exhibit 1).

Past economic loss

58. [58]
    Ms Kim claims a past loss of income of $30,000.^[34]Her pleaded case is that it was her “pre-collision intention” that upon completion of her English course, she would undertake a nursing course at Queensland TAFE commencing in January 2016, and work under her student visa for the duration of her course.  Her evidence was that the student visa permitted her to work for up to 20 hours per week.^[35]It is further pleaded that “as a result of her injuries the plaintiff expected to suffer difficulties:

    1. (i)
       maintaining part-time employment during her studies; and
    2. (ii)
       with the physical demands of her nursing course”,

and as a result of these “anticipated difficulties [she] was forced to abandon her prospective studies and plans for casual employment and return to South Korea for rehabilitation”.^[36]

59. [59]
    The evidence did not support this claim.   In fairness, counsel for Ms Kim did not strongly contend otherwise.
60. [60]
    Ms Kim first came to Australia in October 2012 on a working visa.^[37]
61. [61]
    Prior to that, she had completed a qualification in Korea in relation to some kind of hospital administration work.   Before coming to Australia the first time, she had been working in Korea in a department store, in the gift certificate section.  Although she described this in her evidence in chief as “part time” work, in cross-examination she said she worked “from 9 to 8.30”.^[38]She seemed to distinguish part time work from work as a permanent employee (which she said she was not); rather than in terms of time.
62. [62]
    Whilst in Australia on the working visa, she worked on a farm and in a chicken factory.   The financial documents in evidence show that she worked:

    1. (a)
       from 26 October to 30 November 2012, for Best Link Management Pty Ltd (the farm);^[39]
    2. (b)
       from 21 January to 15 June 2013, for Inghams Enterprises Pty Ltd (the chicken factory);^[40]and
    3. (c)
       from 23 January to 26 July 2014, also for Inghams Enterprises Pty Ltd.^[41]
63. [63]
    At the expiry of that visa, Ms Kim returned to Korea where, with the help of an agency she took steps to apply for a student visa in order to return to Australia.  She arrived back in Australia on that student visa in about January 2015.  Ms Kim said her plan was to study nursing and obtain permanent residency.  First she had to learn English, and so on her return to Australia she enrolled in an English course with the Queensland Academy of Technology.
64. [64]
    In terms of Ms Kim’s aspirations to enrol in a nursing course in Australia, the evidence went no higher than that she had spoken to someone at the agency which assisted her to obtain her student visa.^[42]However, in contrast to her asserted intention, on her application for a student visa, she answered “no” to the question “do you, or any other person included in this application, intend to work as, or study to be, or train to be, a doctor, dentist, nurse or paramedic during your stay in Australia”.^[43]When her attention was drawn to this in cross-examination, Ms Kim said she thought this visa that she was applying for was to study English, not to study nursing, so she felt that was the correct answer.^[44]
65. [65]
    I am not persuaded that studying nursing in Australia was ever more than a hope or a pipe dream on the part of Ms Kim.  Indeed, Ms Kim herself described it as a “vague dream”.^[45]Although Ms Kim asserted that she abandoned this hope or dream after the accident, I am also not persuaded as to whether there was any prospect of this coming to fruition in any event (there are any number of potential impediments, including the English language skills, visa requirements, course availability etc).  Ms Kim’s English course did not finish until February 2016; there is no evidence of her level of proficiency in English following that course (apart from the fact she passed the course); there is no evidence of what level of proficiency is required for such a nursing course; and there is no evidence of any steps taken to enquire about the availability of, let alone apply for entry to, any particular course, at TAFE or anywhere else.
66. [66]
    In terms of her English studies in Australia, as noted above, Ms Kim completed a Certificate III in Spoken and Written English on 26 June 2015.
67. [67]
    Although she was permitted to work up to 20 hours per week under her student visa, at the time of the accident Ms Kim was not working, and had not been working for the previous 12 months – including during her first English course.^[46]
68. [68]
    After the accident, she went on to do a Certificate IV in Spoken and Written English, which she completed on 5 February 2016. 
69. [69]
    As already noted above, for both courses her attendance was recorded as satisfactory.^[47]Ms Kim’s evidence, in cross examination, was that this was a “pass/fail” course – it was not a course in which particular grades were given.^[48]That, and the absence of any other evidence from the course provider, makes it difficult to accept her evidence that her “scores” were lower after the accident.
70. [70]
    Ms Kim agreed, in cross-examination, that she enrolled to do the Certificate IV after the accident; although she then said that “the course is divided, but from memory, I paid for the entire course at once”.   She indicated she had receipts to demonstrate that.  They were called for, but not produced.^[49]
71. [71]
    She said there was “sitting at a desk and writing” involved in this course, which was later clarified by her as involving attending two days a week, from 9am to 12pm, with the ability to see a teacher in the afternoon if you needed additional help.  She said she then did 2 to 3 hours of homework on the other days.^[50]She said the sitting and the concentration was difficult after the accident, but “I had to finish this course, and I pretty much didn’t have a choice”.^[51]She said her ability to study was “lesser” following the accident; but agreed that she still passed, “because I worked hard”.^[52]
72. [72]
    In relation to not working whilst on her student visa, Ms Kim said that initially she wanted to focus on her English studies, and she had money saved up, but then later on when she wanted to work, due to the accident she was not in a situation to work.^[53]That evidence, given in re-examination, was the extent of the evidence about not working after the accident.
73. [73]
    Ms Kim returned to Korea in February 2016, after finishing the second English course.  She did not look for any work in the following 12 months.  That was not said to be because of or attributable to her physical state.^[54]At the time she applied for her current role (which commenced in February 2017) she also applied to three other places, in relation to a similar role.^[55]Ms Kim continued to study English in Korea, telling Dr Campbell that in August 2016.^[56]
74. [74]
    As noted above, Ms Kim has a qualification that allows her to work in hospital administration.^[57]She has never looked for a job in that field (either before or since the accident).  The reason she gave for this was that initially she was planning to go to Australia immediately after graduating with that qualification; and after the accident she did not look for such work “because working in the hospital would require standing for long periods of time, and some night work and weekend work”, which she felt she would not be able to do.  She said her neck hurts a lot and she is unable to stand for long periods of time.^[58]There was no other evidence led to explain why a hospital administration job would require standing for long periods of time; that being contrary to what I infer would ordinarily be expected of such a job (that it would be sedentary and involve a fair amount of sitting at a desk).
75. [75]
    In February 2017 Ms Kim commenced in her current role as a tutor at an English school.   She does not have a teaching qualification.  She works five days a week, from 9am to 3pm, teaching children aged 4 to 6 years old.  Her role does not require her to sit and work at a computer.  As she described it, she is on her feet, standing for most of the day, observing the children, and teaching them, and also to distribute their food at lunchtime.  She has to focus.
76. [76]
    Ms Kim said there are some teachers who have extra jobs at the school.  She said she would be able to do more if she was more fit, estimating that she would be able to take on “about three more hours” if she were not injured.  In re-examination, when asked what other work she could do, after the children she teaches go home at 3pm, she said that once they go home, the kindergarteners come and “it is possible to teach them”.^[59]Her evidence was that she would be paid 30,000 KRW per hour for this extra work.   When asked what this would equate to per month, she said “it’s more than I am currently getting paid working 9 to 3”,^[60]which she said is 1,500,000 KRW per month. 
77. [77]
    Some of the difficulties that I have with this evidence are:

    1. (a)
       There was no other evidence led about this potential additional work - whether it is available to her or not; whether she is qualified to do such additional work; let alone what the level of payment for the work is, or rates of taxation.   If there was a real prospect that this additional work was available, I cannot see that it would have been difficult to call evidence (including by video link if necessary) to confirm that. 
    2. (b)
       It does not make sense that she would be paid more, for working 3 hours extra a day, than she is currently paid for working 6 hours per day.   The asserted hourly rate for the extra hours also does not make sense, upon an analysis of what she said she is currently paid.  If she is currently paid 1,500,000 KRW per month, assuming a 4 week month, that equates to about 375,000 KRW per week.  If she works 6 hours per day, that is 30 hours per week, which equates to 12,500 KRW per hour.  There was no evidence before me, apart from Ms Kim’s assertion, that these potential additional 3 hours would be so much more lucrative than her existing hours, or to explain the anomaly between these rates of pay.
    3. (c)
       I am not persuaded, on the evidence before the court, that the availability of this work, or the potential payment for it, is more than pure speculation on the plaintiff’s part.
    4. (d)
       Even apart from the question of the availability of the work, and the payment for it, for the reasons already articulated, I approach with care the assertion of an inability to work additional hours due to injuries caused by the accident.
78. [78]
    Quite apart from this contention, in determining an amount for past economic loss, I was asked to proceed on the basis of a comparison between what Ms Kim currently earns (on her evidence, 1,500,000 KWN per month, which is said to equate to $437 per week, applying an agreed exchange rate) and what she earned when she was in Australia on a working visa.  This was said (for Ms Kim) to be an average of $830 net per week; although the defendants submitted a far lower figure, of about $416 in 2013 and $476 in 2014.^[61]There are also difficulties with this argument.  It depends on accepting Ms Kim could or would have continued to work in Australia.  Ms Kim’s student visa was a temporary visa, not permitting her to arrive after, or stay beyond 5 April 2016.^[62]There was no evidence led of any other proposal to return to Australia (apart from the nursing plan, which I have already addressed). The average weekly rate of payment in Australia submitted by the plaintiff is somewhat artificial, given that Ms Kim did not work for the full year.  Also, I am not persuaded that the comparison is an appropriate one, given that Ms Kim made the point in her evidence that she wanted to come to Australia because, among other things, “the pay was pretty good in Australia”;^[63]“the work environment is better than that of Korea”; “the environment is great and you get sufficient wage for the work that you do… the big merit was that I am able to receive compensation for the amount of work that – that I do, including overtime”.^[64]
79. [79]
    Under s 55(2) of the Civil Liability Act 2003, the court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.  This involves consideration of whether the plaintiff has demonstrated, on the balance of probability, that their earning capacity has been diminished by reason of the accident-caused injury(ies) and, if so, whether that diminution in earning capacity is or may be productive of financial loss.^[65]It is in considering the “may be” in this second question that the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 arise, in terms of the assessment of both past and future hypothetical events.^[66]
80. [80]
    For the reasons already outlined, I am not persuaded on the evidence that the prospect of undertaking a nursing course in Australia was anything other than remote.   I am also not persuaded that Ms Kim would have worked during her second English course.  She did not work during the first one, because, as she said, she wanted to concentrate on her studies.  It seems more probable than not that she would have done the same during the second English course.  She had not worked during the 12 months prior to the accident.  She did not look for a job for 12 months after she returned to Korea, upon completion of the second English course, and as I have said, that was not said to be attributable to any injury.   
81. [81]
    In so far as her current work is concerned, and the contention that she could work more, if not for her injuries, I note, firstly, that this was not part of her pleaded case.  Counsel for Ms Kim relied on AAI Limited v Marinkovic [2017] QCA 54 as authority for the proposition that this would not prevent the court making a determination on the basis of the evidence, as opposed to the pleading.^[67]
82. [82]
    As a matter of substance, the issue is one of fairness and prejudice.  If a matter is litigated in a particular way, and the opposing party has notice and the ability to cross-examine and make submissions, proceeding to deal with the claim on a basis which does not entirely accord with the pleaded claim may not be objectionable.  But there are limits.  Those limits have been tested in this case, where the claim for past (and future) economic loss has ultimately been pressed on a completely different basis to that pleaded in the statement claim; and even then, in submissions, on a somewhat different basis to the evidence.  I make this latter observation, because of the evidence led from the plaintiff that she could work an additional 3 hours in her current job, with a particular income value being ascribed to this; but then the calculation of estimated loss being carried out on the basis of a comparison between what the plaintiff earned when working in Australia, and what she earns now.  Having said that, the defendants did not make anything of this pleading point, and in the interests of finality and completeness, I do not propose to dispose of the plaintiff’s claim on the basis of a pleading point.
83. [83]
    The real issue of concern in this case is the absence of probative evidence to establish that the plaintiff has suffered a loss of earning capacity as a result of her accident-caused injuries, let alone that any such loss has been productive of financial loss. 
84. [84]
    Ms Kim bears the onus of proving her case.  I have to be able to reach a degree of actual persuasion,^[68]on the basis of evidence that is before the court, in order to be satisfied that Ms Kim has suffered a loss of earning capacity.  I am unable to do that on the basis of Ms Kim’s evidence alone, unsupported as that is by any other, independent evidence in support of the various assumptions which are said to underpin this claim.  In so far as her time in Australia after the accident is concerned, the bare assertion, in the face of all the other evidence, that “due to the accident I was not in a situation to work”^[69]does not provide a sufficient basis for me to be satisfied, as required by s 55(2).   Nor am I so satisfied that she has suffered any such loss, in relation to the period after her return to Korea, when she did not look for work in the first 12 months, and that was not said to be attributable to her physical state.   In so far as the period since February 2017, the evidence before me does not establish the availability of additional work in Ms Kim’s current role; the ability, in terms of qualification, for Ms Kim to do that work, even if it was available; or the amount of money that may have been earned.  Nor am I persuaded, in any event, of her physical inability to work additional hours, should she choose to do this.  In so far as the calculation of the claim is put on the basis of a comparison between what Ms Kim earned in Australia, when here on a working visa, and what she earns now, for the reasons already articulated, I am not persuaded by that argument. 
85. [85]
    To be clear, my conclusion is based on a determination that the plaintiff has not discharged the onus of proving that she has suffered a loss of earning capacity, and I am not satisfied that there is any real prospect that, in any event, she would have earned more money (or, put the other way, that she has suffered a loss of earnings).  Accordingly, I make no award for any past loss of earnings.

Future economic loss

86. [86]
    My ultimate conclusion is the same in terms of the claim for future loss of earnings.
87. [87]
    The pleaded case, again, was on the basis of the loss of the opportunity to complete a nursing course in Australia, and obtain work as a nurse on the completion of that course.^[70]That has not been established, on the evidence before the Court.  Counsel for Ms Kim effectively conceded that.^[71]Nevertheless, in addressing this aspect of the claim, I adopt the same pragmatic approach, despite the fact that as ultimately pressed, the claim did not accord with the pleading.
88. [88]
    For Ms Kim, it was submitted that “there is un-contradicted evidence to the effect that the Plaintiff would be able to earn more money if her income earning capacity was not restricted as it is because of the injuries”.^[72]I do not accept that – for the reasons already outlined above.  In relation to the submission that Ms Kim “points to alternative occupations she would otherwise be qualified to pursue”, I do not understand what is made of this.  Ms Kim did give evidence of having a qualification in relation to hospital administration, but has never pursued that (before or after the accident).  I regard the reasons she gave for this post-accident as unreliable and I am not prepared to act on that basis, in the absence of other evidence.  No other evidence was given by Ms Kim of alternative occupations she would otherwise be qualified to pursue; nor was there evidence of her being prevented from doing so as a result of any physical incapacity which is accident related (the nursing issue having already been dealt with). 
89. [89]
    In terms of the evidence from the medical experts, Dr Wallace said Ms Kim “should be able to rejoin the workforce in a sedentary or supervisory capacity but not in any manual capacity.  She should also be able to finish her studies”.
90. [90]
    Dr Campbell referred to Ms Kim “currently completing her English studies” (noting that this was in August 2016).  On the basis of what Ms Kim told him,^[73]he reported that “[s]he has difficulty sitting to perform desktop work and computer work”.  He said Ms Kim would not be suited to nursing training, as any exposure to practical work would place her at risk of re-injury.  But this does not assist in terms of other work she may well be suited for.
91. [91]
    Dr Boys said Ms Kim has no physical condition which would impair, in any way, employment as desired.
92. [92]
    Notwithstanding Dr Wallace’s assessment of a much greater level of impairment than Dr Campbell or Dr Boys, he still considered Ms Kim capable of working in a sedentary or supervisory capacity.  Dr Campbell’s observations on this matter reflect the subjective reporting to him, by Ms Kim, of a difficulty she has.^[74]I have no evidence before me which would enable me to reach a conclusion that the sedentary or supervisory work Dr Wallace says Ms Kim is suited to would result in her earning any less than any other work she may previously have been suited to, or chosen to do. The medical evidence does not support Ms Kim’s claim for future loss of earnings.
93. [93]
    Without explanation, or evidentiary support, in terms of the assumptions or methodology involved, it is submitted for Ms Kim that an award for future economic loss would appropriately be quantified in the sum of $100,000.^[75]That is simply insufficient.^[76]
94. [94]
    Ms Kim has not discharged the onus of establishing that her earning capacity has been diminished as a result of her accident-caused injuries.  The principles in Malec do not, in those circumstances, come into play.^[77]
95. [95]
    I am not satisfied, for the purposes of s 55(2) that Ms Kim will suffer loss of earnings as a result of the injuries she sustained in the accident.

Future treatment and expenses

96. [96]
    The medical evidence from each of Dr Wallace, Dr Campbell and Dr Boys does not support a claim for the cost of any future medical treatment.  In general terms, they recommend simple analgesia, exercise, and modification of activity where necessary.
97. [97]
    So in terms of an award of damages, at best, an amount for occasional painkillers may be appropriate.  I have some difficulties with what the amount should be, given that, for the past, an amount of only $31 has been agreed; and there was no evidence given of how frequently Ms Kim uses such medicine now (and whether that is in fact directly related to her accident caused concerns, as opposed to something else, like having a period).  Acknowledging the necessary imprecision in putting a figure on this, I will allow $500.

Conclusion and orders

98. [98]
    There will be judgment for the plaintiff against the defendants, for the following:

    1. (a)
       general damages of $8,910,
    2. (b)
       plus interest on general damages, with the rate and amount of interest to be agreed between the parties,
    3. (c)
       plus out of pocket expense of $891.97,
    4. (d)
       plus future medication costs of $500.00.
99. [99]
    I direct that the parties provide a form of judgment, reflecting these reasons, and also as to costs, if the parties are agreed, within 7 days.  If there is no agreement as to the appropriate costs order, each party is to provide brief submissions (no more than 3 pages), and any affidavit material, in support of the costs order they seek, within 7 days, and I will decide the matter on the papers.