Barrett v Richardson[2017] QDC 259

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Ms Barrett, the plaintiff in this matter, claims damages for personal injuries and consequential loss suffered by her as a result of a motor vehicle accident which occurred on 20 May 2014. Ms Barrett was travelling as a passenger in the vehicle at the relevant time. Liability being admitted, quantum with respect to damages, was the only issue at trial.

2. [2]
   It is accepted that the plaintiff sustained certain physical injuries as a result of that accident, however the defendants say that any assessment of damages made by this court ought to be a modest one and limited to general damages and some past special damages only. The plaintiff on the other hand seeks a variety of damages as evident from the Statement of Claim which was maintained at trial.

3. [3]
   As a consequence of constructive input by both counsel, the trial was considerably shortened. An agreement was reached between the parties that in respect of any damages assessed by the court, a reduction of 35% should be applied to take into account the plaintiff’s own contributory negligence related to the subject accident.

Evidence at Trial

The plaintiff

4. [4]
   The plaintiff was born on 19 October 1974. She was 39 years of age at the point of the accident and is currently 43 years old. As a result of the accident, the plaintiff confirmed that she had suffered four broken ribs and a collarbone on her left side, a black eye and bruising on the top of her left forehead and cheek. Immediately after the accident, she went to stay with her daughter, then at her sisters’ and finally went to live with her parents. She said that she did that for about three months and as she was unable to lay back straight in bed she had to sit up in a recliner^[1]. She was unable to doing anything during that period herself and other family members would help her, assisting her by showering and dressing, cleaning and shopping for her. She gave evidence that she went back to her own house after that and her son was doing all of the chores for her which included cooking, cleaning and the like until the time she had her surgery. She estimated that the family members who provided her assistance over the period nominated probably helped out for about three to four hours a day.

5. [5]
   As I understood the plaintiff’s evidence, she said that she had also received physiotherapy treatment from the Townsville Hospital subsequent to the accident, had taken medication for pain relief for some time and also underwent a surgical procedure in February 2016 at the Townsville Hospital to fix the left clavicle fracture which was directly related to the subject accident.

6. [6]
   In respect of her employment, the plaintiff stated that at the time of the accident, that even though she was not working in any paid employment at that exact time, her occupation had been that of a housekeeper prior to the accident occurring. She also stated that she had been looking for work in that role at that time^[2]. She told the court that she had in fact secured a job for a housekeeping position but because of the accident happening, she couldn’t do it. That is, she couldn’t take up that employment. She stated that the job was to be at the Army Barracks in Townsville and she was going to be paid $23 per hour for probably five days a week (perhaps on weekends) and that the hours were usually 7.30 to 2.30, 3 or 4.30pm^[3]. She said that she had wanted to undertake some paid work again as I understood it, in order to supplement the Centrelink Pension which she was receiving and had been for some time. Under cross examination on this point, the plaintiff however was unable to provide who it was, or when it was she had undertaken an interview for the said job, nor could she even remember the date when she said she had actually attended at the Townsville Barracks specifically for that purpose. She nevertheless maintained that she had in fact been offered a job but simply could not take it because of the subject accident had intervened^[4]. She was also however unable to say however when that offer of employment was actually made or at what point.

7. [7]
   The plaintiff also gave evidence that she had in event been doing some work just before the accident occurring at certain police stations but wasn’t sure what year that actually was^[5]. The plaintiff was then shown page 13 of Exhibit 4 in order to assist her memory. She recalled by reference to that document that during 2013 the reference to ‘Sharman’ was the work she did at the police station as a cleaner but that was only for a few weeks because she was unable to drive there because of her epilepsy. Put another way, she didn’t have a drivers’ license because of that medical condition. She also said that the other entry relating to ‘Storm International’ was also a cleaning job but that didn’t last very long because they had wanted her she thinks to have an ABN. She also confirmed during cross examination that when her epilepsy was initially diagnosed, Centrelink, who was paying her a pension, had limited her working hours to 15 hours a week and that she had a lot of other medical problems other than epilepsy that were also affecting her ability to work. As the plaintiff put it, ‘yeah. That’s why I’m only a housekeeper’^[6].

8. [8]
   However, she was reluctant to accept that those other medical problems were still affecting her currently. As she put it: ‘not really’^[7]. The plaintiff also accepted under cross examination that while her epilepsy is still a problem for her, she maintained she was on top of her medication currently and therefore she was controlling it.

9. [9]
   In respect of her belief regarding her ability to carry out her chosen employment field now, the plaintiff said under cross examination that she didn’t believe she would pass a medical in order to be able to return to her employment as a cleaner. She conceded however that she had not even tried to get a medical or had ever tried to return to work after the subject accident even though her surgery which had been performed in early 2016 had been successful. She also told the court that the only medical condition she had prior to the accident was epilepsy which had affected her employment only on one occasion namely her last job at the casino in 2013 in that she had had a seizure at work and it stopped her being able to continue working there any further. Under cross examination, the plaintiff confirmed that she had been on a disability pension in respect of her epilepsy for a number of years prior to the accident. She accepted that it has not been controlled at all times because of her own failure to take her medication. She also accepted that she had suffered a right shoulder injury after she fell as a result of an epileptic fit. She thought it was when she had attended at her aunty’s funeral in Rockhampton. She wasn’t sure when that was. It became evident at trial that the injury to her right shoulder occurred the day after her operation on her left shoulder was performed in early 2016.

10. [10]
    The plaintiff conceded during her evidence that she had smoked marijuana, but that neither drugs nor alcohol had affected her employability at any stage in the past. The plaintiff also gave evidence that before she had the car accident, she had lost her mother and then she started smoking and drinking^[8]. She stated that she had in fact that she had never touched alcohol and drugs until she was thirty three (33) years old. During cross examination on this issue, the plaintiff again stated that she didn’t have a problem with cannabis until after the accident because even though she had started smoking at 33 years old (2007 on my calculations), she had stopped when she was going to church, the subject accident then occurred, and it was only after her mother passed (in 2015) that she had started smoking and drinking again^[9]. When it was pointed out to her that her evidence was not truthful because her general practitioner had noted on the 28^th June 2013 that she was ‘currently giving up the cannabis habit, five days since last smoke’^[10] she replied that she had been smoking throughout the years, but she was not a ‘druggo’^[11].

11. [11]
    She also stated that when she had said in her evidence in chief that she had never drank alcohol heavily before the accident^[12], she meant that even though she use to get on the grog together with Dwayne (the 1^st defendant and driver of the subject motor vehicle in question) when he would come over, she would only have a few drinks with him and it wasn’t regularly^[13]. As she put it, “we didn’t go for days and days and drink”^[14].

12. [12]
    Insofar as what effects she says she still suffers from now, as a direct consequence of her injuries suffered, the plaintiff told the court that she still can’t sleep properly on her left side, carrying her grandchildren is difficult and so is lifting heavy things such as saucepans. She gave an example that only earlier this year she tried to lift a saucepan with her left hand but it fell and burnt her^[15].

13. [13]
    She accepted that she told Dr Cheung (the orthopaedic surgeon who examined her in July 2015) that she had told him she could do most of the housework herself with some limitation insofar lifting was still problematic. She also stated that she was currently was able to do most housework now but still cannot manage to lift heavy saucepans^[16], or things such as heavy groceries on her left side. She confirmed she wasn’t taking anything for pain relief now and indeed had stopped taking pain medication about a month after the operation on her collarbone was performed.

14. [14]
    She also accepted that she had cared for her sick mother for many years prior to the accident occurring, whose health unfortunately deteriorated and her mother subsequently passed away in 2015. The plaintiff accepted that during the period she had cared for her mother subsequent to the motor vehicle accident but before her shoulder operation was carried out in early 2016, she had been able to assist her mother with transferring from bed to wheelchair and vice versa^[17]. She said that was because her mother also helped too and she would carry the burden of her weight on her right side or her daughter was there to help too.

15. [15]
    She confirmed that when she saw Dr Duke (the orthopaedic surgeon who examined her in October 2016) that she may have stated that she had had a fall a couple of months before she had seen him, but she believed was at her aunty’s funeral as a result of an epileptic fit and as a consequence, her right shoulder was sore when Dr Duke saw her.

Brent Barrett

16. [16]
    Mr Barrett was called to provide evidence on behalf of the plaintiff’s case. He is the son of the plaintiff. Mr Barrett confirmed that after his mother came back home after the subject accident occurring, she didn’t do much other than sit on a recliner and sit there in pain. He stated that he in effect did everything for her during this period and estimated he was doing about six (6) hours a day initially for about three (3) months^[18].

17. [17]
    Mr Barrett stated that even though he carried a lot of the domestic workload around the house even prior to his mother’s accident, he nevertheless considered that he had done about four (4) to five (5) hours a day for about another 3 months^[19]. It then dropped off time wise.

18. [18]
    He stated however that after his mother had her operation, it started up again and he helped her out for about four hours a day, again for about 3 months.

19. [19]
    During cross examination, Mr Barrett confirmed that his mother couldn’t have run the other children to school as she didn’t have a license; that he or his brother had always done the mowing and that his mother had been unwell with a variety of medical problems well before the accident. Mr Barrett confirmed that he had helped out his mother as a consequence around the house, including shopping and cooking and other domestic chores. In effect, Mr Barrett confirmed that he helped his mother out with the domestic chores even before the subject accident because he had always had to do it^[20].

Medical Evidence

20. [20]
    Two orthopaedic surgeons were called to give evidence. Dr Cheung and Dr Duke. Both provided helpful reports (3 September 2015 and 28 October 2016 respectively) and both gave oral evidence.

Dr Cheung

21. [21]
    Dr Cheung examined the plaintiff on the 18 July 2015 at a time when the plaintiff had not undergone her surgical operation in respect of her left collarbone. He noted at the time of his examination that she complained of pain and tenderness in the middle third of her left clavicle. She reported however that the pain was not that bad for her to take pain relief medications. However, he noted that she reported that certain daily activities did bring on the pain and surgery had been contemplated.

22. [22]
    He noted the effects on her daily living as being trouble sleeping, lifting and opening things such as sliding doors. He also noted that the plaintiff wasn’t working, spending much of her time supporting her dad and caring for her sick mum. He noted that she continued to enjoy swimming, walking, jogging and cricket as social activities.

23. [23]
    He opined that based on her reduced shoulder range of motion, and pain presenting as a significant feature in her presentation, he assessed a 4% combined whole person impairment rating.

24. [24]
    He also noted that she remained totally unfit for work due to the clavicle fracture of the left side and even though she could perform domestic duties (at her own pace), her ability for employment may be very limited whilst the clavicle fracture continues to be symptomatic.

25. [25]
    During his oral evidence, Dr Cheung was happy to accept Dr Duke’s opinion insofar as impairment rating but indicated that because he had not seen the client since his examination he was unable to comment now on (ongoing) disability or function.

Dr Duke

26. [26]
    Dr Duke examined the plaintiff on the 28 October 2016 at a time after the plaintiff had already undergone her surgical operation earlier that year. He noted that her left clavicle fracture had clinical and radiographically excellent union. He noted that she was not working, having last worked at Jupiters Casino at the beginning of 2014. She engaged in walking as a social activity.

27. [27]
    Dr Duke noted that she still complained that she couldn’t lift anything because her arm was weak, described sleep disturbance with shoulder pain on both sides with elevation difficulty bilaterally. She also described pain as four (4) out of ten (10).

28. [28]
    He noted Dr Cheung’s report, especially in regards to the social activities that the plaintiff was continuing to enjoy at that time.

29. [29]
    He opined that based on his examination, that her right shoulder showed significant problems and was in many ways worse than her left. The left shoulder had a good range of movement and that when examining her she appeared to adopt an unusual posture that made the shoulder appear weak. There was however, a negative supraspinatus stress test. His examination also revealed that even the plaintiff maintained her cape area of the shoulder was numb, that she felt pain in all areas without one spot being localised, his palpation of the area indicated it wasn’t in fact numb. He also noted that any significant pain complained of as a result of light touch of the skin was not related to the motor vehicle accident, from an orthopaedic point of view.

30. [30]
    He opined that as a result of no clinical problem being detected in the clavicle or shoulder, there was no basis for any ongoing significant pain that he could find. Dr Duke noted that the right shoulder was a whole lot worse clinically. No treatment was recommended in respect of her left shoulder as there was no problem to be addressed.

31. [31]
    Dr Duke noted that in respect to the plaintiff’s work capabilities, her right shoulder presented the most problems as well as her other difficulties with epilepsy and closed head injuries. The subject accident however had left her in no way worse off. As such, there was 0% upper extremity impairment and in no way impacts the plaintiff’s ability to carry out her activities.

32. [32]
    Dr Duke’s conference notes^[21] confirms these opinions.

33. [33]
    During his oral evidence, Dr Duke confirmed that he had undertaken several clinical tests during his examination^[22]. He also confirmed that the skin sensitivity in the cape region he noted was not a normal finding with respect to a healed fracture of the clavicle, that had he found there was pain associated with the injury to the clavicle, he would have assigned some impairment for pain. He confirmed he had found none and therefore did not assign any such impairment accordingly.

Exhibit 4 – Agreed Trial Bundle

34. [34]
    This was compiled by the parties by agreement. An additional document were also prepared at my request as it related to the Schedule of the Plaintiff’s Net Earnings^[23]. That amended Schedule then formed part of the agreed trial bundle.

35. [35]
    Certain other documents obtained that had been produced to the court were also marked as an Exhibit 1.

36. [36]
    Having regard to the whole of the evidence available at trial, the helpful written submissions provided by both Counsel (marked Exhibits 2 and 3) and the supplementary oral submissions made, I now address the relevant heads of damages.

General Damages

37. [37]
    The plaintiff’s claim is to be assessed under the Civil Liability Act 2003 (the Act) and the Civil Liability Regulation 2003 (the Regulation). The Act provides the basis for the calculations of general damages. The Act makes it clear that general damages are to be assessed by reference to an Injury Scale Value (ISV) and the Regulation sets out the ranges of ISV for particular injuries. The plaintiff suffered several injuries, the more significant of those was the shoulder injury. She also suffered four (4) fractured ribs and some minor bruising, the latter of which was of least significance.

38. [38]
    It is necessary for the purposes of the Act to determine the dominant injury. Having regard to the medical evidence available, I am satisfied that the shoulder injury which she suffered was the dominant injury. I am also satisfied on the evidence available that the appropriate Item under the Regulation is Item 97 – Moderate Shoulder Injury.

39. [39]
    While the defendants in its’ written submission considered that the shoulder injury suffered should only be assessed as a Minor Shoulder Injury, sensibly Counsel for the defendants agreed that it more likely feel into the Moderate Shoulder Injury category. However, it was submitted that even though that concession had been made, an assessment ought to be limited to the lower end of the scale available, namely ‘6’. In support of that submission, the defendants referred to the lack of complaint by the plaintiff regarding ongoing pain having particular regard to certain attendances with her general practitioner/s over the period immediately subsequent to the accident. It was also submitted that careful regard ought to be had to the time she had surgery (February 2016), where there were many attendances with no mention of any problem with the pain.

40. [40]
    The plaintiff however submits that an appropriate ISV ought to be assessed as 10 under Item 97 – Moderate Shoulder Injury. That is to say, ISV of 6 which not only takes into account the plaintiff’s reported pain supported by the independent records, but the fact that she underwent surgery which involved the placement of a plate on the clavicle and also a bone graft for the clavicle from the plaintiff’s hip. The plaintiff submitted that the assessment proposed of 10 under Item 97 should also include taking into account the four fractured ribs (admitted by the defendants) which the plaintiff suffered as a result of the accident. As such, the plaintiff submitted that having regard to the fact that Item 30.2 gives an ISV range of 0 to 4 for minor fractures of the ribs and as such, an ISV of 4 is appropriate.

41. [41]
    It is trite to say the general damages covers pain and suffering and loss of enjoyment of life. It is also trite to say that if the ISV range for the dominant injury is inadequate to reflect of adverse impact on a plaintiff arising out of the multiple injuries, then the court may ‘adjust’ any ISV awarded under the relevant Dominant Injury Item. Having regard to the submission made and the evidence available, I consider an overall assessment ISV of 10 is appropriate under Item 97. I shall now explain why.

42. [42]
    As will be evident later in these reasons regarding the reliability overall as it relates to the plaintiff’s evidence, I nevertheless consider that the complaints which she made regarding the initial pain and suffering which she endures immediately after the subject accident and for a short period subsequently was reliable.

43. [43]
    A careful perusal of Exhibit 4, in particular the medical documentation to which I shall refer shortly, supports a reasonable conclusion being made that the plaintiff did in fact suffer from pain immediately after the subject accident. The entries reported at pages 778, 779 shows that she was persistently complaining of pain. The entry of 15 August 2014 also shows that she was advised to undergo physiotherapy as a result of the plaintiff complaining she wasn’t getting better. On page 777, the entry of 12 March 2015 shows ‘NQ persistent pain management’. While it is accepted that there were other entries in 2015 (see pages 776 and 777) that related to other medical complaints in 2015, the entry of 7 May 2015 suggests to me that the plaintiff came in herself for a care plan, for injury physiotherapy. It is also apparent from the medical records available, that the Physiotherapist who examined her on 11 May 2015 (page 167) noted a 12 month history of pain of left sterno-clavicular and shoulder pain with some restricted movement noted on initial assessment. Additionally, when Dr Cheung saw her in July 2015, she again reported that she even though she could do most domestic chores (at her own pace) at that stage, but she nevertheless still had trouble lifting. He also noted clinically a reduced shoulder range of motion with reported pain still presenting as a significant feature in her overall clinical presentation at that time. There was also evidence from her son Mr Brent Barrett, who struck me as an honest and forthright witness even though at times he had difficulty with precise recollections which were generally somewhat vague, that his mother was still struggling with pain even after three months, at the point she had returned home after living with her parents. As he put it, she just sat there in the recliner in pain. Even though I had real reservations about the plaintiff’s credit overall, which will become clear why as set out subsequently in this decision, I am nevertheless prepared to accept her evidence, in light of the other independent evidence to which I have just referred, regarding her reported continued pain of which she complained. I have also taken into account however that she told Dr Cheung that her pain was not however sufficient enough at that point when he saw her to cause her to take pain relief for it. I have also taken into account that she was performing most domestic duties at her own pace and was back playing sport at the time she saw the doctor in July 2015.

44. [44]
    I also think that a small assessment ought to be made in respect of the four fractured ribs which, on any view of it, would have been objectively painful coupled with the addition of the collarbone fracture which the plaintiff also suffered. As she described and I have no reason to reject, she was unable to lie on the left side to even sleep for many months and had to sit up in a recliner chair most of the time as a direct result of those injuries. Her son also confirmed that even after she had returned home initially, she was still just sitting there in pain.

45. [45]
    Accordingly, having regard to those matters to which I have just referred, I consider an ISV of 10 under Item 97 reasonable. That equates to $14,850 under this head of damages. That ISV includes taking into account the four fractured ribs suffered as well as the left clavicle fracture and the pain and suffering and loss of enjoyment of life as a direct consequence of those injuries.

Past Special Damages

46. [46]
    Agreement was reached between the parties s that Medicare has spent $1250 on the plaintiff’s behalf. That sum is therefore allowed.

47. [47]
    A claim has been made by the plaintiff for pain medication relief directly related to the subject injuries and travelling expenses. There is no basis for any award for travel expenses under this head of damages. The plaintiff conceded that she didn’t (and probably couldn’t anyway) drive herself to the various appointments with medical practitioners and the like. She did not have a driver’s license in order to do so. There was no evidence she paid for any travel expenses herself or to anybody else. Those attendances are therefore seem to be more relevant to any question of gratuitous services provided to the plaintiff.

48. [48]
    The plaintiff also claims some past special damages for pain relief medication. There was no receipts provided in respect of any monies expended for Endone or Panadeine Forte and no PBS schedule. The evidence by the plaintiff on this point was at best somewhat limited in that she was somewhat vague. She stated she had been taking both Endone and Panadeine Forte. She recalls taking pain relief in the form of Endone for nearly three months immediately after the accident. ($15 per pack per week for 3 months = $180). She wasn’t clear at all when she was taking the Panadeine. That is evident from the evidence she gave at hearing^[24].

49. [49]
    The defendant submits that in light of the vagueness of the evidence, and lack of documentary support, $250 is a reasonable quantification of that loss. The plaintiff on the other hand claims that in addition to the Endone, that while it was accepted that the evidence was confusing on this point, that a period of 6 months insofar as the taking of pain relief would be reasonable. I am unable to accept that submission. There was simply insufficient evidence available for me to reach such a conclusion. At best, the evidence was somewhat vague.

50. [50]
    I will however award nevertheless $250 for pain relief medication, which includes the Endone taken for three months and some further pain relief which the plaintiff says she also remembers taking around that same time.

51. [51]
    That equates to $1500 in total under this head of damages.

Interest on past Special Damages

52. [52]
    Interest is calculated on the amount awarded less the Medicare refund which is $250. The interest calculated in accordance with s 60 of the Act is $12.56^[25].

Future Special Damages

53. [53]
    The plaintiff seeks $2000 assessed as on a global basis to cover attending future medical appointments, having to purchase pain relief medication, travel and the like.

54. [54]
    There is in my mind no basis for any such assessment being made. The medical evidence of Dr Duke (which Dr Cheung accepted insofar as any current impairment) was clear. There was no orthopaedic explanation for the plaintiff’s continued symptomology of which she complained which could be directly related to the subject injuries she had suffered as a result of the accident. The plaintiff herself also said in her evidence that she does not currently takes any pain relief, that she had stopped taking it about one month after the operation on her shoulder was performed (early 2016). Dr Cheung also noted in his report at page 3 (Exhibit 4 page 737) that the pain she reported to him was not that bad for her to have to take pain relief medications even though some activities caused her pain. She also conceded at trial that she hadn’t been told by anyone that further treatment was required or even necessary and she was back to various sporting activities at the point she saw Dr Cheung. In light of the fact that the operation to her left clavicle in early 2016 had been successful, and the uncontroverted evidence of Dr Duke, which was that no further treatment was anticipated as there was no problem to be addressed, I make no assessment accordingly under this head of damages.

Gratuitous Future Care

55. [55]
    There is in my mind no basis for any such assessment being made. The plaintiff has claimed a global sum of $10,000. In light of my acceptance of Dr Duke’s medical opinion which I have just outlined in part, I do not consider that there is any evidence to support such an award being made. This is so even notwithstanding the plaintiff’s continued complaints of pain and effects which she says still plague her today as a result of the subject injuries. The medical evidence simply does not support the plaintiff’s assertions in this regard. In addition to that fact, I have also regrettably found the plaintiff to be somewhat less than forthright overall while providing her evidence and as such, not entirely reliable. This I shall explain now in order that my findings in respect of the following remaining heads of damages can be readily understood.

The plaintiff’s credibility

56. [56]
    My overall impression of the plaintiff was that she did not present overall as a reliable witness. That impression was formed even after allowing for any cognitive issues that had been earlier identified in the documentation available (see Exhibit 4 pages 22 and 23 in this regard as it relates to traumatic brain injury earlier suffered in time). The plaintiff struck me nevertheless as being capable of understanding the questions that were asked of her and showed no real difficulty in answering them.

57. [57]
    Even after allowing for the strange environment that a courtroom is, and having regard to the fact that time has now passed since the accident, she nevertheless in my mind she managed to provide her evidence to the court without much difficulty at all. The plaintiff submits that I should accept the plaintiff’s evidence as being both truthful and accurate, that she was genuine and did the best given her position. The defendant on the other hand says that I would have grave reservations about the truthfulness and accuracy of the plaintiff’s evidence as a whole. At best, she has exaggerated and at worse, it was submitted that she had in fact lied to the court. The former it was submitted related to her continued claims of pain even now of which there was no medical evidence in support before the Court and the latter I have presumed in respect of some of the evidence which she gave at hearing particularly as it related to her prior drug use.

58. [58]
    The evidence on the latter point is to be found at T1-21 and T1-50 respectively. I have carefully looked at this evidence in its’ context. A fair reading of those portions of her evidence are that even though she only started taking drugs at 33 years old (2007 on my calculations), it was not enough for her consider she had a habit. In any event, the crux of her evidence (and the most favourable view of it) appears to me to be that she gave it up while she was attending church (it is unclear when exactly that was because she was never asked) but that she had starting drinking and using drugs again heavily after the loss of her mother in 2015, which is of course subsequent to the subject accident in May 2014. While I do not find that the plaintiff had deliberately lied to the court on this issue, I find nevertheless that she was less than forthright and somewhat evasive when questioned on this point which did little to enhance her credibility. For example, she attempted to downplay her cannabis use in 2013 (which was documented in Exhibit 4 at page 99) by stating that she wasn’t a druggo or anything if that was being suggested to her. That response in my mind was less than forthright considering it was a doctor who had noted on the 28^th June 2013 that the plaintiff was currently giving up the cannabis habit (my emphasis). A fact in my mind a medical practitioner would not have noted as a habit unless she or he had not formed an opinion about that personally as a medical practitioner or hadn’t in fact been told that by the plaintiff herself during the consultation. Her reluctance to also accept any real or relevant alcohol intake prior to the accident occurring was also less than forthright at hearing and demonstrated a reluctance to acknowledge any relevant intake at all.

59. [59]
    While the evidence to which I have referred raised real concerns, there was other evidence that has caused me to conclude regrettably that the plaintiff is not an entirely reliable witness. This is turn effects my assessment of her creditability as a witness overall. That other evidence includes the following:

60. [60]
    In her Notice of Claim (page 4, Exhibit 4) she ticked the box that she had never had any alcohol or drugs during the last 12 hours before the accident. That was in fact incorrect as she conceded that she had in fact been drinking during the evening just prior to getting into the car as a passenger. She attempted to downplay this answer by stating during her evidence that she didn’t think it meant the drinking she had engaged in that night.

61. [61]
    At Q 19 in the Statutory Declaration she signed on 29^th August 2016. (Exhibit 4 at page 9). When asked to provide details of her pre accident history, including specifically details regarding any drug habits, the plaintiff response was that “I was in good health and did not have any drug habits.” The available evidence shows (Exhibit 4 medical documents and Mr Barrett’s evidence^[26]) that the plaintiff had been suffering from a myriad of medical conditions prior to the accident including epilepsy, asthma, anxiety, depression and cognitive impairment not to mention the cannabis habit mentioned to the medical practitioner during the consultation I have already referred.

62. [62]
    At Q 18 of that same document, the plaintiff when asked to provide details of any positions that she had applied for during the six months prior to the accident, she responded “I applied for jobs with the Aboriginal Hostels Limited and Jupiters Casino.” The plaintiff’s explanation at hearing in respect of her failure to put down the Army Barracks job which she said she had just been offered but couldn’t take up because the accident had then happened, was because she said she couldn’t remember the date or the lady’s name who she had the interview with so that’s why she didn’t put it in there^[27]. While again some allowance has to be made regarding the plaintiff’s ability to remember dates and her cognitive difficulties, I still found the plaintiff nevertheless to be less than convincing on this point particularly when having regard to the fact that the nominated entities which she did put down in answer to Q18 didn’t require her to specifically particularise any exact dates. In any event, as it soon became evident, there was simply no documentary evidence at all to support the plaintiff’s assertion that she had in fact attended at the army barracks (where she must have had to report into the security check point to enter), that she even had an interview with a lady there or that she was in fact been actually offered the job for the hours she suggested at hearing. Matters that in my mind would be readily available and easily obtained if they were in fact true. That evidence caused me real concern regarding the veracity for truth.

63. [63]
    There was also some other matters that raised concerns. At Q27 of the Statutory Declaration to which I have just referred, the plaintiff also said she has had been unable to participate in sport and physical activities due to the injuries received in the subject motor vehicle accident. That was in direct conflict with what Dr Cheung noted she told him, which was that she was continuing to do swimming, walking, jogging and playing cricket as her recreational interests. He saw her in July 2015.

64. [64]
    While I have accepted that the plaintiff has clearly suffered pain as a result of her fractured clavicle and four ribs and suffered especially for a period after the accident during her the course of her recovery objectively speaking, and again accepting that she would have also suffered post operatively after her operation in February 2016, it was nevertheless difficult for me to ‘tease out’ what parts of the plaintiff’s evidence was either entirely truthful or reliable even at this point.

65. [65]
    Accordingly, I approach any assessment in respect of the following heads of damages (which were in effect the main points of contention between the parties at trial) with the necessary caution and circumspection. I shall now turn to the claim for Past Care.

Past Care

66. [66]
    The plaintiff makes a claim for past care in the amount of $9072 (calculated at $28 per hour for a total of 324 hours). In the written submissions provided, the plaintiff sets out the basis for the claim under this head. The defendants on the other hand suggest that no award ought to be made primarily because the claim does not even meet the statutory threshold under s 59 of the Act. (6 hours per week for at least 6 months). Further, the defendants says that there was simply no evidence in any event placed before the court of what an appropriate commercial hourly rate would even be in respect of that care. In respect to the defendants’ last submission, had I considered that an award ought to have been made under this head, while I accept no strict proof was given in respect of the hourly rate proposed by the plaintiff, I would have nevertheless moderated the hourly rate for any services provided to reflect what a reasonable commercial rate would have been to have provided such services. I would have allowed $20.00 per hour.

67. [67]
    As is evident from the decision of Shaw v Menzies^[28], the Court of Appeal helpfully emphasised the need for evidence to support such as claim, otherwise worthy claimants may in fact miss out even they were so entitled. Justice McMeekin in Hooper v King^[29] also re-emphasised the importance of such a need for evidence.

68. [68]
    There was unfortunately only a paucity of evidence placed before the court on this issue. The only evidence really came from the plaintiff herself and her son Brent. A very basic schedule was prepared as it related to travel to and from certain medical consultations and the like for consideration under this head of damages. (see Exhibit 3). It is evident that the schedule doesn’t set out the time which was taken to actually travel to and from the suggested medical related appointments, how long the plaintiff’s father or other family member stayed to wait during any such consultation or even what the consultations were for exactly. I have myself perused Exhibit 4 having regard to the page references provided in that Schedule and it became evident that the plaintiff had not even attended on some of the dates claimed. Some of the page references are in relation to correspondence between medical practitioners and not in relation to any attendances as such and on another occasion, an attendance claimed for an appointment related to an injury to her right shoulder as a consequence of her epilepsy for example. Accordingly, that document was of limited assistance. There was for example only 9 attendances over the initial six month period immediately after the accident related to it. The only other evidence in respect of the attendances claimed generally came from the plaintiff who said that when her father took her to her appointments, she travelled about forty kilometres each way to get there and back from where she was living at the time.

69. [69]
    Doing then the best I can with the limited evidence I have, and given the nature of the injuries suffered by the plaintiff, I am prepared to accept that for a period immediately after the subject accident and again for a period immediately after her surgery, the plaintiff would have been in need of assistance and care during those periods similar to that which she described. Objectively speaking, the combination of her injuries would have given rise to a need for such services which were necessary. The difficulty however lies in trying to work out whether those periods of time can be solely attributed to her subject injuries and whether any estimates of time given at trial are soundly based. This observation equally applies to any question regarding whether the plaintiff was also in need of gratuitous care outside of those particular periods I have just referred, as the plaintiff has asserted in the written submissions provided.

70. [70]
    s 59 of the Act provides:

1. (1)
   Damages for gratuitous services provided to an injured person are not to be awarded unless—

(a) the services are necessary; and

(b) the need for the services arises solely out of the injury in relation to which damages are awarded; and

(c) the services are provided, or are to be provided—

(i) for at least 6 hours per week; and

(ii) for at least 6 months.

2. (2)
   Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.

71. [71]
    A helpful summary on this section is set out by Justice A Lyons in Boon v Summs of Qld Pty Ltd t/a Big Bills Bobcats^[30]. At paragraph [111] of that decision, Her Honour noted that what was clear was that a plaintiff is required to have needed assistance for more than 6 hours a week and for more than 6 months. As she noted in respect to her particular case, the period of care that was claimed was not continuous as the plaintiff had returned to work between the 3 bouts of surgery he was required to undertake as a result of his injuries. The question which Justice Lyons considered was whether that particular plaintiff was precluded by s 59 from recovering the amount for gratuitous care because it was not 6 months of continuous care. She found that the section should be interpreted in a way which least diminishes a claimant’s right to damages for gratuitous services and found that the section did not require the period of 6 months to be a continuous period. That approach was not disturbed on appeal (see Boon v Summs of Qld Pty Ltd^[31]).

The evidence available here was that the plaintiff stated that she received considerable assistance from her family members immediately after the accident^[32]. She stated that she couldn’t lay in bed, had to sit up in a recliner because she couldn’t move because of her ribs, that situation lasting about 3 months. During that time she said she wasn’t able to do anything much at all for herself and her family would help her with showering, dressing her and cleaning and shopping too. She estimated they were doing about three or four hours a day helping her She stated that after about three months, she still remained in her recliner but went back home to live. Her son then helped her out there. She said he helped out with the cooking, cleaning and essentially with all the household chores that had to be done. Brent Barrett her son confirmed that his mother returned to sit in a recliner after she came back home to live. He stated that he did everything for her during a period of about three months. He estimated doing about four or 5 hours a day over and above what he normally would have been doing as part of the chores that he normally did around the house for his mother, a situation he said he had been doing since he was a teenager. He also said that it all started up again after his mother had her surgery in 2016 and he helped her out for about four hours a day again for about three months or so he thought. He wasn’t entirely clear while giving his evidence regarding time estimates generally. That was evident when he gave his evidence even though he tried his best to remember. The only other evidence regarding her father’s assistance insofar as driving her to appointments, to which I have already referred came from the plaintiff herself.

72. [72]
    Due to the paucity of evidence available, I am unable to find with sufficient confidence that gratuitous care was provided to the plaintiff other than for the following periods I shall now set out.

73. [73]
    I accept that from the date of the accident for a period of three months the plaintiff would have been in need of the assistance provided to her by family members on a daily basis. I accept that it would have been necessary for her to have received this help from family members in respect of showering, dressing, cooking for her and generally assisting with her everyday daily needs including any attendance of medical appointments if and when that need arose. The difficulty however is my ability to quantify without sufficient records having been taking down by the plaintiff (or someone else on her behalf) how much time was actually given to her during this period. In the circumstances, I consider nevertheless that one (1) hour each day for a period of three (3) months to be reasonable. That is because I accept she couldn’t do anything much for herself at all, a fact I am prepared to accept given the nature of her injuries and making an allowance for any slower recovery time. I have also taken into account that she would have also suffered pain during this recovery period.

74. [74]
    I also accept Mr Barrett’s evidence, that upon his mother returning home, he also gave her assistance over and above what he would have normally done around the house such as assisting her with her showering, helping her to dress, helping her change her position because she was still in the recliner chair and taking full responsibility for the other children at home, doing the cooking and shopping during that time. It again is difficult to quantify because the evidence was somewhat lacking, but I consider one (1) hour a day per week for a period of a further one (1) month is reasonable. In arriving at that conclusion, I have taken into account that the son said that he had actually done a lot of the domestic chores anyway for his mother due to her other unrelated medical problems which she had even prior to the accident.

75. [75]
    However, a fair reading of his evidence overall is that he did do more for her on a personal level once his mother initially returned home. The period of time which he said he did that for her however is where the difficulty lies in this case. There was no orthopaedic evidence available at trial which lent support to the proposition that there was a need for gratuitous care that was necessary over the periods actually claimed by the plaintiff. While I accept that the plaintiff would have suffered pain immediately after the subject accident and during her recovery subsequently, I do not think that the pain of which she continued to complain of as it related to her fractured clavicle would have meant that in turn she therefore remained in need of care for the lengthy periods of gratuitous care claimed or even to the degree asserted insofar as the number of hours per day. I suspect here that this plaintiff did in fact recover sufficiently from her various fractures after a period of three to four months for her to be able to do quite number of things for herself, even accepting that at times she may have had difficulty lifting certain things on occasion using her left side and was still complaining of pain. I find it more likely that in this case that this plaintiff’s son has simply devoted the extra time to his mother because he wanted to help her out, rather than because there was any specific need for it, just like he said he had done for her in the past in respect of her other unrelated medical issues. It is trite to say that there is a difference between being in need of gratuitous care that is necessary and being happy to receive that gratuitous care from others while not really being in need of it necessarily or at all.

76. [76]
    I shall now turn to the period immediately following the plaintiff’s surgery in early 2016. I am prepared to accept that the plaintiff would have again been in need of assistance post her surgery. I consider a short period of approximately one (1) month for half (1/2) an hour a day is appropriate. However, I am not satisfied that the assistance received from her son in this regard can be solely attributed to the subject injuries. It was uncontested at hearing that she fell on the 25^th February 2016 and injured her right shoulder as a result of her epilepsy, that date being not long after the surgery had been performed on her left shoulder. It is difficult then to know whether any gratuitous assistance provided to her after the subject operation was solely related to her left shoulder or to both shoulders. This is particularly relevant considering she is dominant right handed. I also note that when determining this period of time, I note that plaintiff said she no longer took any pain killers after about a month, after surgery and she was already back playing sport, and doing most domestic chores (with some difficulty when lifting) at the point she saw Dr Cheung in July 2015.

77. [77]
    Having regard to the periods which I have allowed and the time allocated, it follows that the plaintiff does not get over the necessary threshold in s 59(1)(c) As such, no amount can be awarded for gratuitous care.

78. [78]
    It follows then that I have been unable to accept the submissions made on behalf of the plaintiff in respect of this head of damages. The lack of clear evidence simply does not allow me to do so. In this regard, I also note in any event that Mr Barrett confirmed in his evidence that after the initial period of about three months that he had said he had cared for his mother at home, he said that she started to get better and that he wasn’t doing ‘nothing’ which I have presumed him to mean not much at all, and ‘that the routine just sort of slowed down’^[33] A careful reading of his evidence that follows that evidence demonstrates in my mind, without being critical of him, was that he simply didn’t really know what he was doing over and above what he had always done for his mother around the house before she had her accident and he appeared to try and guess how long that period may have even gone on for after the initial three month period he cared for her or what hours he helped her out.

Past Economic Loss

79. [79]
    The plaintiff claims $26,250 for past economic loss. That precise mathematical calculation has been made on the assumption that I accept the plaintiff’s evidence that she had in fact secured work as a Cleaner at the Army Barracks in Townsville but was unable to take up that employment because the subject accident had intervened. The written submissions provided by Counsel helpfully sets out the mathematical basis in arriving at that figure. As a secondary position at trial I invited Counsel to consider whether any global assessment might be made if a precise mathematical calculation could not be made. Counsel for the plaintiff submitted that in the event this Court was against the plaintiff in that regard, then a global assessment might be made by the Court under s 55 of the Act to compensate the plaintiff for the loss of opportunity (or any loss of chance she had) to compete on the open labour market in her chosen trade as a direct consequence of the injuries she had suffered. The plaintiff submitted $20,000 as an appropriate figure in oral submissions made.

80. [80]
    The defendants on the other hand submits that no past economic loss should be awarded. In support of that submission, the defendants say that the plaintiff was not working at the time of the accident and had been in receipt of a disability support pension for some time in respect of her epilepsy. The defendants submit that the plaintiff has not proven that her injuries had the effect of impacting on the plaintiff’s ability to return to work, or caused her any diminution in respect of her earning capacity as it was more probable than not she would not have likely returned to work in any event even having regard to the fact that the subject accident happened when it did.

81. [81]
    The Court of Appeal in Allianz Australia Limited v McCarthy^[34] sets out helpfully the interaction between s 55 of the Act which provides for a calculation of any economic loss where a precise calculation cannot be made and the relevant principles which apply (see Malec v JEC Hutton Pty Ltd^[35] referred to in paragraph [8] and [9] in Allianz Australia Limited). An even more recent and comprehensive examination of the applicable principles in relation to the method of assessment in respect of any such calculation is found in the decision of AAI Limited & Anor v Marinkovic^[36]. As pointed out by Morrison JA at paragraph (75), there is a clear distinction between loss of earning capacity, which is what an injured plaintiff may be compensated for, and a loss of earnings, a distinction he noted was precisely what McHugh J had said in Medlin v SGIC^[37]. As observed by Justice Morrison, it was made plain in Medlin that the court’s task is to compensate an injured plaintiff for any loss of earning capacity that is or may be productive of financial loss (paragraph 79).

82. [82]
    It was also noted in AAI Limited & Anor v Marinkovic that where there is any loss of earning capacity which has occurred by reason of the accident which is to be the subject of compensation by an award of damages, that any such determination in that regard is a matter of informed judgment and not merely of calculation. Part of forming that judgment is a broad estimate of what that earning capacity before its destruction or diminution was capable of producing during such time as it would have been likely to be gainfully exercised, bearing in mind any vicissitudes of life (paragraph 76). Those observations are particularly relevant in this case which I shall turn to now.

83. [83]
    After having careful regard to the weight of the evidence available, I am unable to be persuaded that any award ought to be made in respect of past economic loss even after having regard to the principles to which I have just referred. I will now explain why.

84. [84]
    There was no evidence placed before this Court which supported the plaintiff’s assertions that she had secured employment with the Army Barracks as a cleaner and that as a result of the subject accident happening, she was unable to commence that employment. Having regard to the findings and reservations that I have already set out in respect of the plaintiff’s credit, particularly as it relates to this issue, I am unable to accept those assertions which were at best vague and at worse, simply not true. Had the latter been in fact true, I would have expected that there would have been some documentary evidence or witnesses available to support the plaintiff’s assertions. There was none. Accordingly, I do not accept that past economic loss ought to be awarded on the basis that the plaintiff has initially sought, namely that the subject accident intervened which had in turn prevented the plaintiff from taking up that employment at the Army Barracks as she suggested. Thus, it follows that the mathematical calculations set out in the written submissions provided in this regard based on this premise is rejected.

85. [85]
    Turning then to the secondary position adopted by the plaintiff in respect to this claim, namely that a global award of damages for past economic loss under s 55 of the Act ought to be made. There is no evidence in my mind to support a conclusion being made that the plaintiff’s injuries that she suffered as a result of the subject accident caused any diminution of her earning capacity that is or may be productive of financial loss (Medlin). Put another way, I am unable to find with confidence that she would have likely, in any event, returned to work in her chosen field even after the subject accident had occurred.

86. [86]
    While it is true that the plaintiff has worked over the preceding years for short periods of time as a housekeeper in the past, (as evident from the Amended Schedule of Plaintiff’s Net Earnings which formed part of Exhibit 4), that Schedule also demonstrates in my mind that the work in her chosen field which she was managing to obtain was decreasing over the years even prior to the accident. For example, the plaintiff had only worked over the course of nearly the whole of the financial year ending 30^th June 2014 for a period of 27 days (bearing in mind the subject accident happened on the 20 May 2014). That was significantly less than the periods that she had worked over the preceding two financial years (2013 and 2012 respectively). There was very little evidence provided by her in respect of that schedule to clarify it, no actual taxation records were provided to assist and no detail at all given regarding how long during any of the periods of employment designated in the schedule itself explained how the hours nominated were actually worked, per day for example. Put another way, it is unclear on the face of that document that during the periods of employment designated, whether the hours worked were full time hours worked over the course of a day or days or sporadic hours over many days throughout those periods.

87. [87]
    There was also the evidence given by the plaintiff herself that before the subject accident occurred, the work which she had obtained at Jupiters Casino Townsville in 2013^[38] was only retained for a short period and that she had in fact lost her last employment there because she had had an epilepsy fit at that workplace and couldn’t continue working there because of it^[39]. It is difficult to know by reference to the Amended Schedule prepared, whether the reference to work in late 2013 (Sharman Property Services Pty Ltd) actually related to this workplace or not. The plaintiff did not seem to think so as she thought the ‘Sharman’ reference was when she was actually working at a Police Station^[40].

88. [88]
    Notwithstanding, what is clear is that the plaintiff did manage to obtain some work as a housekeeper and/or cleaner with Storm International (Australia) during a period between 22.03.14 – 04.04.2014 for 68 hours and the work mentioned with Sharman Property Services Pty Ltd. in late 2013. Where that work was actually performed is not precisely known. The plaintiff didn’t say where she performed that work^[41] but did say that she thought she had worked at several police stations (Mundingburra and Townsville City Police Stations) in the six months before the subject accident^[42]. That evidence is difficult to reconcile with what was told to Dr Duke which was that her last job was working in housekeeping for Jupiters at the beginning of 2014. What became clear however was that the plaintiff said that she was unable to retain her employment with neither Sharman or Storm International because she either didn’t have a driver’s license (as a result of her epilepsy) at that time and/or because she didn’t have a ABN^[43]. Put another way, she was simply unable to retain that work. The plaintiff has not worked at all since the work she performed for Storm International, notwithstanding that her shoulder operation has been successfully performed in early 2016 and there is no orthopaedic impediment preventing her from doing so. The plaintiff also conceded at hearing that she is only ‘in the middle of trying to get her (driver’s license) now’, a factor relevant to her ability to retain and even presumably obtain employment^[44].

89. [89]
    The question then is whether, having regard to the injuries which she did suffer, has the plaintiff as a consequence, suffer any diminution of her earning capacity that will or may be productive of financial loss given that she may not have been even able to have obtained any housekeeping work during the relevant subsequent period relevant to any PAST economic loss. When considering this question, I have had particular regard to the circumstances I just outlined and to other available evidence which I shall now refer.

90. [90]
    The plaintiff has been on a disability pension for her epilepsy for many years now (a fact not ultimately determinative given that she has managed to do some work nevertheless as a housekeeper even if for short periods). She says that her epilepsy has only caused her difficulty at work on one occasion and only when she isn’t compliant with her medication which she says has control of now. A perusal of the medical documents available in Exhibit 4 however shows that her epilepsy can cause her difficulties irrespective of whether she is on her medication or not (fits, seizures and the like) even when she is taking the medication on occasion (Exhibit 4 page 100, 2 Jan 2013 entry; page 101, 30 Oct 2011 entry; see also page 253 entry 2 June 2014.

91. [91]
    There are also other significant medical problems that the plaintiff sadly had (and still has) to contend with at the time the subject accident occurred. This includes the cognitive dysfunction, asthma, the strict obligations placed on her to maintain the medication regime to keep the epilepsy under control herself. In addition, it is also clear that during much of 2015, the plaintiff herself admitted that her family duties were dominating her mind and time (namely her valiant caring of her parents, especially her seriously ill mother who sadly passed away later that year after her long illness). It is doubtful then in my mind that the plaintiff would have been looking for work at all during that sad period in her life or while she was caring to the degree she described for her family during that time. That I think would be so even if the subject accident had not occurred.

92. [92]
    There is also the unrelated injury to her right shoulder as a consequence of her epilepsy causing her to fall in early 2016. That shoulder injury (to her dominant side as she in right handed) was significant enough for her to complain to Dr Duke in October 2016 when he saw her. He confirmed on his clinical examination of her at that time that her right shoulder was the most problematic for her insofar as any ongoing impairment and function which would directly impact upon her ability to work as a Housekeeper. There is also the ongoing and current complaints of pain by the plaintiff even after the successful operation was performed in early 2016, unexplained from an orthopaedic perspective. There was no other medical evidence available to support that those complaints were genuine or as a direct consequence of her subject injuries.

93. [93]
    There was also no evidence at all which showed that even after her collarbone was successfully treated in early 2016, allowing for some recovery time from it post operatively, that the plaintiff has demonstrated any interest at all in returning to work. She mentioned in her evidence that she didn’t even think (now) she could return to employment^[45]. That is because, if I understand her evidence correctly, she believes that she wouldn’t be able to pass a medical. That in my mind may well in fact be correct insofar as her right shoulder injury, particularly given she is dominant right handed and having regard to the opinion of Dr Duke, who specialises in upper limb orthopaedics.

94. [94]
    Accordingly, I make the following findings. Regrettably, I am not able to find with any confidence at all that this plaintiff did have any real chance or indeed any real chance at all, given the matters I have just outlined, that she would have likely have returned to work as a Housekeeper after the subject accident had occurred. There was no evidence available to find that the plaintiff had rejected work because of her injuries, that she was in fact seeking employment at the Army Barracks shortly before the subject accident as she asserted, nor was there enough evidence to support any conclusion that she had even lost the chance of returning to work in her chosen trade to the degree she was working prior to the subject accident, as a direct result of suffering her injuries.

95. [95]
    While I am particularly conscience of the need for the Court to always recognise that any physical injury may have dire consequences upon a worker such as placing them at a disadvantage insofar as their general ability for competitiveness on the open labour market particularly as it relates to their chosen trade which may involve physical activity, I am not satisfied in this particular case that the injuries suffered by the plaintiff as a direct consequence of the subject accident, did or would have had the effect of impacting on the plaintiff’s ability to actually be able to return to work in her chosen field on the open labour market. Put another way, I find that it was highly unlikely and not probable at all, given the particular circumstances of this case that this plaintiff would have returned to work even after the subject accident had occurred. I consider for the reasons outlined, that any chance that the plaintiff may have had in that regard, that is of ever having been likely to have found gainful employment at that time and retaining it was at best, remote and even speculative given the circumstances of which I have just detailed. That is so even notwithstanding that I see that that she did manage to do some housekeeping work (albeit minimal) during 2014 and a little more during the two preceding years before that. As observed in Graham v Baker^[46], “an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss”. I am unable to reach such a conclusion in this case.

96. [96]
    Accordingly, I make no award for past economic loss.

Future Economic Loss

97. [97]
    The plaintiff claims $108,150 for future economic loss. The written submissions in support of that claim sets out the mathematical basis for this amount. It assumes a loss of $300 per week, which the plaintiff says is a drastic reduction of the potential earnings. It is premised upon the basis that the plaintiff is now at a serious disadvantage on the open labour market as a consequence of her injures and should be compensated for the future.

98. [98]
    I cannot accept the submissions made on behalf of the plaintiff. I do not consider that any award for future economic loss ought to be awarded in this case. I shall now explain why.

99. [99]
    The rejection of the plaintiff’s evidence regarding the loss opportunity of employment at the Army Barracks coupled with the amended schedule of the plaintiff’s net earnings does not support an assumption of a loss of $300 per week.

100. [100]
     Secondly, the uncontroverted evidence of Dr Duke makes it difficult in my mind to support the conclusion which the plaintiff seeks this Court to make. Dr Duke not only discounted any ongoing functional impairment directly related to the subject shoulder injury, but he also excluded the possibility that any reported and ongoing pain sequelae exhibited by the plaintiff at the time he saw her was in fact in any way attributable to her subject injury. I have no reason to reject Dr Duke’s opinion in these matters. Firstly, he is an Upper Limb Specialist with extensive experience in his field. Secondly, Dr Cheung acceded to Dr Duke’s opinion insofar as any ongoing impairment which Dr Duke assessed as zero. Dr Cheung in any event conceded he had not seen the plaintiff since July 2015, at a time well before the operation on the plaintiff’s shoulder was successfully carried out. Having regard to the matters also already discussed under the Past Economic Loss category, I am not persuaded at all that any award should be made for future economic loss.

101. [101]
     I am however cognizant of s 55 of the Act that allows such awards to be made and in particular the approach which the Court may take when considering whether to make such an award as discussed in Allianz and more recently, in AAI. Nevertheless, having regard to the weight of the evidence and the findings which I have made, I make no award for future economic loss.

102. [102]
     Accordingly, I assess damages as follows:

103. [103]
     General Damages$14,850

104. [104]
     Past Special Damages $1,500

105. [105]
     Interest on that amount $12.56

106. [106]
     In light of the above and applying a 35% discount for contributory negligence by the plaintiff as agreed, the damages assessed are $10,635.66.