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Cornwell v Imarisio[2018] QDC 138

DISTRICT COURT OF QUEENSLAND

CITATION:

Cornwell v Imarisio & Anor [2018] QDC 138

PARTIES:

TAMMY PEARL CORNWELL

(plaintiff)

v.

GIUSEPPINA IMARISIO

(first defendant) 

And

RACQ INSURANCE LIMITED ACN 009 704 152

(second defendant)

FILE NO:

382/15

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

22 June 2018

DELIVERED AT:

Townsville

HEARING DATE:

8 and 9 November 2017

JUDGE:

Lynham DCJ

ORDERS:

  1. Judgment for the plaintiff against the defendants in the amount of $458,220.17.
  2. Any submission in respect of costs, or alternatively a proposed consent order if the parties are agreed, be filed within 14 days.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – where the plaintiff was injured in a motor vehicle accident – where liability is not in issue – where damages are assessed under the Civil Liability Act 2003 (Qld) – where past and future economic loss are assessed – where plaintiff’s capacity to perform work is adversely effected – where gratuitous care and domestic assistance assessed.

LEGISLATION:

Civil Liability Act 2003 (Qld), Chapter 3, s 51, 55, 59, 61

Civil Liability Regulation 2003 (Qld), Schedule 3, s 2, 3, 4, 7, 8, 9, 10; Schedule 4, item 63, 89, 93, 94, 98, 155.4 Schedule 6A, s 4; Schedule 7

Evidence Act 1992 (Qld), s 92

CASES:

Allwood v Wilson & Anor [2011] QSC 180

Browne v Dunn (1893) 6 R 67 (HL)

Carroll v Coomber and Anor [2006] QDC 146

Daoud v Boutros [2013] NSWSC 687

Driver v Stewart & Anor [2001] QCA 444

Fox v Percy (2003) 214 CLR 118

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270

Hunt v Australian Associated Motor Insurers Ltd [2012] QCA 183

Hunt v Lemura & Anor (No 1) [2011] QSC 426

Kriz v King & Anor [2006] QCA 351

McGory v Medina Property Services Pty Limited [2017] QCA 234

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403

R v Wilson [2014] QCA 350

Reid v Kerr (1974) 9 SASR 367

Shaw v Menzies & Anor [2011] QCA 197

Thomas v SMP (International) Pty Ltd [2010] NSWSC 822

Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15.

COUNSEL:

G F Crow QC, with him R J Armstrong, for the plaintiff

G C O'Driscoll for the first and second defendants

SOLICITORS:

Roati Legal for the plaintiff

Quinlan Miller & Treston for the first and second defendants

Background

[1] The plaintiff was injured in a motor vehicle accident on 7 July 2012 when the Toyota Camry sedan being driven by the first defendant collided with the driver’s side of the Holden Barina hatchback being driven by the plaintiff at an intersection along Herbert Street in Ingham.

[2] The plaintiff claims damages for personal injuries which she suffered as a consequence. Liability is admitted. The first defendant’s vehicle was insured by the second defendant. What is in issue is the extent and consequences of the plaintiff’s injuries and the quantum of her recoverable damages.

The pleadings

[3] The pleadings delineate the matters in dispute between the parties with respect to the plaintiff’s injuries and sequelae. The plaintiff pleads[1] that she suffered personal injuries which included an acceleration/deceleration injury to her cervical spine and lumbar spine and abrasions to the right side of her body.

[4] The plaintiff claims that as a consequence of her injuries she has and will continue to suffer damages which the plaintiff quantifies at $735,484.96, comprising:[2]

  1. (a)
    General damages for pain, suffering and loss of the amenities of life in the amount of $19,470 (calculated on the basis of an injury scale value of 13 for the purposes of section 4 schedule 6A Civil Liability Regulation 2003 (“the Regulation”);[3]
  2. (b)
    Past economic loss in the amount of $52,416.88 on the basis that following the accident the plaintiff was unable to work at the same level of her pre-accident employment (together with an amount of $4,848.56 for past loss of superannuation and $476.52 interest on past economic loss);
  3. (c)
    Future economic loss in the amount of $424,060.00 on the basis of a diminution in the plaintiff’s income earning capacity (together with future loss of superannuation of $45,046.00);
  4. (d)
    The cost of past gratuitous services in the amount of $29,250.00;
  5. (e)
    The cost of the provision of future gratuitous services in the amount of $97,860.00;
  6. (f)
    An amount of $5,000 for past special damages relating to medical, rehabilitation, pharmaceutical and travel expenses (together with interest of $199.85);
  7. (g)
    Future special damages in the amount of $56,867.15

[5] By their defence, the defendants challenge the extent of the plaintiff’s injuries suffered by her in the accident. The defendant’s primary position is that as a result of the collision the plaintiff suffered an injury consisting of abrasions to the right side of her body which was “minor and transitory in nature” and which has since fully resolved and therefore will neither require future treatment nor affect the plaintiff’s capacity for employment or self-care.[4] The defendants otherwise deny that the plaintiff suffered an acceleration/deceleration injury to the cervical spine or to the lumbar spine.

[6] In the alternative, the defendants assert that even if it were accepted that the plaintiff did suffer an injury to her cervical spine or lumbar spine as a result of the collision, this injury was also minor and transitory in nature, has since fully resolved and will not require future treatment or affect the plaintiff’s capacity for employment or self-care.[5]

[7] The basis for the defendant’s denials are identified in the defence as follows:

  • The plaintiff has been assessed as having no quantifiable whole person impairment with respect to the injury by a medical expert;
  • The contemporaneous medical records do not evidence an injury to the extent alleged by the plaintiff;
  • The plaintiff’s medical records evidence persistent back pain arising after the birth of her child and as such the pain complained of is not referrable to the collision;
  • The plaintiff’s injury has otherwise fully resolved.

[8] The competing positions of the plaintiff and defendants[6] as to the quantum of damages can be summarised as follows:

HEAD OF DAMAGE

Plaintiff

Defendants

General damages

$19,470.00

$7,750.00

Past economic loss

$52,416.88

$5,000.00

Past loss of superannuation

$4,848.56

$462.50

Future economic loss

$424,060.00

$30,000.00

Future loss of superannuation

$$45,046.

$3,300.00

Past care

$29,250.00

$0

Future care

$97,860.00

$0

Past special damages

$5,000.00

$5,000.00

Future special damages

$56,857.15

$3,000.00

Interest on past economic loss

$476.52

$300,00

Interest on past special damages

$199.85

$0

Total damages

$735,484.96

$54,612.50

Plaintiff’s circumstances pre-accident

[9] The plaintiff was born on 19 October 1989. She was aged 28 at the time of trial. At the time of the accident she was aged 22. She resides with her partner Luke Spann and her son, Ryan, who was born on 31 May 2013 (approximately 10 months following the accident). Ryan was aged 4 ½ years at the time of trial.

[10] The plaintiff left school in 2005 part way through year 10. She explained that this was not by choice but rather came about as a consequence of her parents separating in 2005 and of her one day arriving home from school to find both of her parents had gone. She was then forced to leave school and find employment to support herself.[7]

[11] The plaintiff’s first employment which commenced about one month after leaving school was a permanent part-time position as a checkout operator for Woolworths. She remained employed by Woolworths until gaining a full time position as a shop assistant at Overflow in Townsville in July 2009. Her employment prior to the accident was predominantly in the areas of shop assistant and customer service working either on a casual or full time basis. At the time of the accident in July 2012 the plaintiff was employed as an Assistant Manager at McDonald’s in Ingham which she commenced in July 2011. The plaintiff says that had the accident not occurred her plan was to remain at McDonald’s with a view to becoming a store manager.[8]

[12] Prior to the accident I am satisfied that the plaintiff was in good health although it is clear that she was overweight. This is borne out by the plaintiff’s medical records. Other than suffering minor burns, first in 2006 and again in 2009, for which the plaintiff needed medical treatment, the plaintiff’s medical records reveal the following additional relevant pre-accident entries:

Date

Treating Doctor

Details

5.10.06

Dr Fernando – Ingham Family Medical Practice

  • Acute back pain – tail bone after hitting in tub
  • This happening time to time

3.8.10

Dr Marwaha – Ingham Family Medical Practice

  • Weight gain – discussed dietary and exercise role

10.11.10

Dr Vermeulen – Ingham Family Medical Practice

  • Weight 85 kg
  • Weight loss counselling

20.9.11

Dr Sanouiller – Ingham Family Medical Centre

  • Weight 85 kg – objective to be back to 65 kg
  • Discussions about weight loss

1.5.12

Dr Claxton – Ingham Family Medical Centre

  • Weight 95 kg, BMI 34.1 – overweight
  • Discussions about weight reduction

[13] The plaintiff was cross-examined in relation to the entry of 5 October 2006 relating to her seeking treatment for acute back pain. Her evidence was that she could not recall ever hitting her tailbone in a tub but that the entry related to her seeking medical treatment as a result of her having period pains and was complaining of pain in her lower back because of that.[9]

[14] Radiological investigation has also confirmed that the plaintiff had a pre-existing spondylolisthesis in her lumbo-sacral spine (L5/S1). The plaintiff had been asymptomatic before the collision.

The circumstances of the accident and its effects

[15] The accident occurred on 7 July 2012 as the plaintiff was driving her Holden Barina hatchback in a northerly direction along Herbert Street in Ingham. The plaintiff’s partner Luke Spann was a passenger in the vehicle. The first defendant was driving a Toyota Corolla in a westerly direction along Haigh Street. As the plaintiff’s vehicle approached the intersection of Herbert Street and Haigh Street the first defendant proceeded to drive through the intersection and collided with the driver’s side of the plaintiff’s vehicle. Photographs taken of the plaintiff’s vehicle after the accident indicate that the point of impact was around the driver’s side door.[10]

[16] The plaintiff in evidence described the collision as follows:[11]

“So I was just driving through town and just driving, and – and all of a sudden, I just – bang, and I could hear a car – a motor just, like, right there in my driver’s side door, and it kind of threw me a bit, and then my car went up on two wheels, spun around. I spun on the footpath. My leg was caught near the steering wheel and the door.

…. My right leg was pinned in between the door near the steering wheel. I was sort of pushed against – over to my gear stick in my car, and the airbags were out and sort – I was in shock, and I was emotional, and I was crying, and everyone come running out of the shop to help me.

….. It was a lot of force. My door – the driver’s side door took most of the impact, as you can see.”

[17] The first defendant was not called to give evidence. Mr Spann in his evidence described the collision as follows:[12]

“Well we were coming down the main street of Ingham and we were just pulling into Mitches to get a milkshake and there’s a T intersection. And as we were slowing down we were doing probably 50 ks, 40 ks, slowing down to pull up, and a car came out of the side out of nowhere and accelerated and run straight into her door.

…. Yeah into the driver’s side door and the force of the impact spun us around a couple of times and we ended up guttering facing back the way we came.”

[18] Mr Spann, in describing the force of the impact of the other vehicle hitting the plaintiff’s vehicle, said “It was like hitting a cement wall.”[13]

[19] The plaintiff described that following the accident she was “more concerned about my neck and my shoulder from the airbags”.[14] She said that immediately following the accident her back “wasn’t too bad”, that she did have some pain there “but I was mainly concerned about my neck and shoulder”.[15]

[20] Following the accident the plaintiff was transported to the Ingham Hospital by Ambulance. The Ambulance report records the following details in relation to the plaintiff’s injuries following the accident:[16]

Patient Complaint: Right shoulder pain; Right shoulder redness; Neck (generalised) tenderness. 

Primary survey: No immediate life threat; response yes; airway patent; cervical spine potential injury; breathing yes; ventilation inadequate; circulation pulse palpable; no major haemorrhage.

Secondary survey: grips strong bilaterally; speech normal; neurovascular observations colour normal temperature normal, sensation normal; right shoulder reduced movement >> soft tissue injury; Parietal headache; normal temperature; normal sensation; normal movement; anxiety denied/altered conscious state.

…..

Initial assessment: soft tissue injury >> right shoulder; muscular/soft tissue pain; headache; anxiety.”

[21] The entry relating to the examination of the plaintiff at the Ingham Hospital records that the plaintiff presented with the following:[17]

“Pt presents via QAS after her car was T-boned by another car. PT C/O pain in the back of her head & pain in her (R) shoulder after hitting the door.”

[22] An examination of the plaintiff conducted by Dr Bentley at the hospital records that:

“Shoulder & R post parietal headache …

No neck pain or back pain.

No chest pain or abdo pain. No pelvic pain”

[23] The plaintiff is recorded as having a Glasgow coma score of 15. A haematoma was noted over the plaintiff’s right upper limb in the deltoid area. The hospital records also make a note of the plaintiff stating that her vehicle was travelling at “< 50 km/h when car was T boned” and that “other driver had only just taken off, likely < 10-20 km/h.”

[24] The Ambulance report makes reference to a spinal immobilisation regular cervical collar being fitted to the plaintiff’s neck when treated at the scene. I note that in cross-examination propositions were put to the plaintiff that she had made no complaint either in the ambulance or at the hospital to suffering any neck or back pain. Relevantly, the plaintiff’s evidence was as follows:[18]

“I put to you that at that stage, you didn’t complain of any neck pain? I did in the ambulance. I complained about the neck pain and shoulder pain.

But you didn’t to the Ingham Hospital? No because they had me laying down. They didn’t even ask me to get up and see if it hurt or anything.

So was there no neck pain when you were laying down? Well they had me in a ….

Did they have a soft collar on your neck? Yeah.

And you had no back pain? At that time, I wasn’t – yeah. I didn’t complain about my back time – at that time.

And nor did you complain to the ambulance officers about any back pain at all immediately after the accident? No I didn’t.

Because the truth is, you did not have any back pain at all … ? Yes I did.

….. at the accident time? Yes I did have pain, but I was more concerned about my neck and my shoulder.”

[25] The plaintiff attended upon her GP on 12 July 2012 (5 days post-accident). She had not returned to work after the accident and she was issued with a medical certificate covering her for the period 8 July 2012 to 15 July 2012. The plaintiff returned to work on 18 July 2012. In terms of the plaintiff seeking further medical treatment post-accident, her medical records confirm, inter alia, the following:

Date

Treating Doctor

Details

12.7.12

Dr Pitts – Ingham Family Medical Practice

  • Was in MCA 4 days ago
  • Soreness in the right shoulder, headaches, was not concussed
  • There is some soreness in the neck movements but no acute catching
  • There is no significant finding at the right shoulder
  • The lower back is painful in the night; the primary movements are a little cautious but there is a full pain free range here and the dural test is negative
  • Panadol and movement

12.7.12

 

Medical certificate issued – unfit for work from 8.7.12 to 15.7.12

1.8.12

Dr Elliott – Hinchinbrook Health Care

  • Usually fit and well
  • MVA 3 weeks ago
  • T boned by another car
  • App speed 50 km/hr
  • Hit from drivers side
  • Sustained neck and back injuries
  • Neck, thoracic, lumbar spine tenderness
  • Pain down front left leg
  • ?psoas involvement
  • Examination – tender areas right paravertebral muscles, trapezius, neck, occipital, spine limited rom, limited toe touching
  • For simple analgesia and physical therapy
  • Prescribed Panadeine Forte, Voltaren and Levien

6.9.12

Dr Elliott – Hinchinbrook Health care

  • Back pain, discussed benefits of physical therapy
  • Prescribed Panadeine Forte

11.9.12

Massage Matters

  • Lower back through to neck, temperature change shows inflammation on right mid back and left lower back, warm to touch

19.9.12

Dr Bentley – Ingham Hospital

Issues CTP Medical Certificate for:

  • Minor tissue injury to right upper arm sustained in MVA – low speed, wearing seatbelt, not knocked out
  • Right shoulder upper arm pain, right posterior headache, haematoma over right deltoid
  • Normal examination otherwise. No neck pain or tenderness.
  • Rest, ice, non-steroidal anti-inflammatory medication if needed, return to Ingham Hospital ED if increasing headache, neck pain or concerns
  • Fit to resume normal duties on 8.7.12

2.10.12

Massage Matters

  • Lower back to neck, focused around neck muscles, temperature feels normal

12.11.12

Dr Scott – Ingham Family Medical Practice

  • Injury claim after car accident
  • The right leg and back have not been the same
  • She has been having massages
  • The right leg had trouble moving, shooting into leg but the actual back is not aching
  • Spider veins on the leg also. No locking of the knee, no giving way
  • Has not been able to lift heavy stuff either – hurts more. Pain maximal about L1 region, not lower
  • No imaging, just lots of pforts prev MO
  • Prescribed Panadeine Forte

21.2.13

Dr Scott – Ingham Family Medical Practice

  • Antenatal visit – weight 100
  • Imagining request Queensland x-Ray Townsville – USS pregnancy 30 weeks
  • X-Ray pregnant lady great pain right knee; no locking or giving way, just stiff, unable to walk freely, post MVA 9 months ago
  • Prescribed Panadeine Forte

15.4.13

Dr Sprague – Ingham Family Medical Practice

  • Gets odema standing on feet all day, manager at McDonald’s
  • Weight 103 kg; rand GB for her to ring & med cert stop working now in light of DM & oedema at work. Early termination from work in light of the above say 26.5.13 but preference is 19.4.13

16.4.13

Dr Sprague – Ingham Family Medical Practice

  • Georgina Bosworth agreed – finishing work this Friday 19.4.13

31.5.13

 

Plaintiff’s son Ryan born

12.7.13

Dr Sprague – Ingham Family Medical Practice

  • Lower back pain and right L5/S1 sciatica since MVA 1 year ago
  • Overweight
  • Lumbar back pain + right L5/S1 sciatica
  • Has reasonably full range of movement, pain in ext, reduced sensation right foot compared with left in signature zones L4, L5, S1
  • Impression – right L4, L5, S1 allodynia/neurotic pain
  • Prescribed Lyrica and Panadol Osteo

9.1.14

Dr Scott – Ingham Family Medical Practice

  • Back pain, sciatica right side
  • Prescribed Duromine and referred for CT (L1-S1, pins and needles in foot. Sciatica)

5.3.14

Dr Sprague – Ingham Family Medical Practice

  • Complains of neuropathic pain right sciatica
  • Diagnosis – lumbar back pain + right L5/S1 sciatica
  • Prescribed Gabapentin and Amoxil

17.9.14

Dr Begun – Ingham Family Medical Practice

  • Lumbar back pain + right L5/S1 sciatica, pain flares on and off, bad for 2 days
  • Prescribed Lyrica

3.11.14

Dr Begun – Ingham Family Medical Practice

  • Dysfunctional/mechanical back pain ? + nerve root lesion
  • History of road traffic accident 1.5 years ago
  • Deep dull ache, occasional sharp, relieves with rest, exacerbates with activity, especially right sided, high intensity at the end of the day following activity
  • Referred for X-Ray lumbo-sacral spine (back pain + pins and needles, car accident 1.5 years ago + overweight pt)
  • Prescribed Celebrex

[26] As I have noted already, the plaintiff remained off work until 18 July 2012, a period of 11 days after the accident. When asked in evidence to describe her lower back pain from late afternoon on the day of the accident until then, the plaintiff said:[19]

“So since the accident, it was hurting, but it wasn’t that bad, and it slowly graduated, and now it’s like a pressure point in my back, like there is always pressure there.”

[27] The plaintiff described her back pain as “an aching. It’s constantly aching, and when I really do have a bad sleep … I get shooting pains down my right leg”.[20] She said that in the period from the accident until April 2013 when she commenced maternity leave, the pain that she experienced in her low back whilst at work at McDonald’s was “probably an eight rated out of ten.”[21] The plaintiff said that her lower back pain has continued to affect her in a number of respects, including:

  • Difficulties in standing for long hours;[22] That when she stands around for long hours she suffers from back aches;[23] That when working at McDonald’s she sits down to alleviate her back pain;[24]
  • Difficulties in lifting;[25]
  • Difficulty in sleeping on her back and on her right side;[26]
  • That the amount of back pain she suffers when working part time is less than when she works full time;[27]
  • Impacting on her family activities including playing with her son.[28]

[28] The plaintiff accepted that as her pregnancy progressed her back pain became more pronounced.[29] She agreed that towards the end of her pregnancy that she developed gestational diabetes, that this had become a concern for her medical practitioners and that she was advised to cease work earlier than she had intended.

[29] The plaintiff’s medical records confirm that the plaintiff has been prescribed pain medication. The plaintiff said that she takes Nurofen Plus, Voltaren rub and Voltaren tablets which she uses to assist in pain management.[30] 

Expert Medical Evidence

[30] The plaintiff relied upon the expert opinions of Dr Malcolm Wallace and Dr John Maguire, both of whom are orthopaedic surgeons.

Dr Wallace

[31] Dr Wallace opined that in the accident the plaintiff sustained an “acceleration/deceleration injury to the cervical spine and lumbar spine and abrasions to the right side of her body She has persisting lumbar spinal pain with sciatica radiation.”[31] In cross-examination Dr Wallace:

  • Explained that spondylolisthesis was a slippage of one vertebrae upon another; That it is a radiological finding; That the most common cause is a stress fracture of the parts of the interarticularis which is part of the arch of the vertebrae; [32]
  • That the MRI confirmed that the plaintiff had no nerve root compression which would explain the radicular pain she complained of down the back of her leg;[33]
  • That the explanation for the plaintiff’s radiation pain was that the plaintiff had “mechanical lower back pain” which he described as “a painful condition in the lumbar spine [that] can radiate into the lower limb without it being due to true sciatica, which is due to nerve rot compression”;[34]
  • That advanced pregnancy could make a pre-existing spondylolisthesis symptomatic; that lower back pain in late pregnancy is “fairly common”; and that there is an increased risk of back pain during pregnancy if you have spondylolisthesis.[35]

[32] Dr Wallace opined that the plaintiff had a pre-existing spondylolisthesis which was not caused by the accident but the condition was asymptomatic until the time of the accident.[36] He assessed the plaintiff as having a 7% whole person impairment of the lumbar spine under DRE category II.

Dr Maguire 

[33] Dr Maguire examined the plaintiff on 12 May 2017. His report includes the following:[37]

  EXAMINATION:

 On examination, it is noted that Ms Cornwell is significantly overweight.

 Lumbar Spine

 She is able to walk without an obvious limp. Straight leg raising is asymmetrical with her right side 50 and the left 70. There is marked tenderness in the right lumbosacral junction region. Forward flexion was to the mid shin level and caused muscle spasm on the right side which was evident when palpated. Lateral flexion was symmetrical. Extension beyond neutral caused pain. Lateral flexion to the left caused significant muscle spasm on the left side. There was no neurological deficit in the lower limbs.

 ……

 Right leg

 Ms Cornwell describes a sharp pain which is intermittent, however at today’s examination was not present.

 INVESTIGATIONS:

  • MRI scan lumbar spine, Queensland X-ray dated 8 August 2015 – Degenerative L5/S1 secondary to spondylolisthesis at this region. There is some degeneration of the L4/5 disc with a generalised disc bulge. There was no significant nerve root impingement.
  • X-ray lumbosacral spine, Ingham Hospital dated 3 December 2014 – Spondylolysis at L5/S1 with a low grade I slip.
  • CT scan lumbosacral spine, Queensland X-ray dated 4 February 2015 – Degenerative changes at L5/S1 and disc bulge at L4/5.

SUMMARY:

Diagnosis:

Ms Cornwell has sustained the following:

  1. Lower back injury with aggravation of degenerative change at L5/S1 with spondylosis causing ongoing back pain which has failed to resolve since the accident. Prior to the accident she was asymptomatic, however the changes are long standing.”

[34] Dr Maguire awarded a 6% whole person impairment in respect to the plaintiff’s lumbar spine under DRE category II. He apportioned 3% to the plaintiff’s pre-existing condition and 3% as a result of the accident. In cross-examination, Dr Maguire gave the following evidence:[38]

“And in fact, Doctor, there has been an apportionment, in your opinion, of 50 percent to the underlying pathological condition as opposed to any effects of the motor vehicle accident? That was the proportion that I gave, but it does note that she was asymptomatic prior to the accident. So I acknowledge that the condition was longstanding but that she was asymptomatic. And many people with that condition are asymptomatic throughout their lives.

A fact that can’t be ignored is the body habitus of the plaintiff. She is significantly overweight? Yes.

And also in respect to her pregnancy, there’s a known correlation between the development of a spondylolisthesis condition pregnancy, isn’t there, in that it can make spondylolisthesis symptomatic? Well, people with pregnancy can have all sorts of problems just to the body shape change during the pregnancy which often resolves afterwards. But she was – the key in this case is that she was asymptomatic prior to the injury of the day in question. So I think that’s the most relevant point.

The spondylolisthesis makes a person, what, more vulnerable to the development of lower back pain? People with spondylolisthesis can have back pain. There is an association with that, yes. It is a common condition and the majority of people with spondylolisthesis or spondylolysis remain asymptomatic throughout their lifetime. So the incidents or prevalence in the community is around 5 percent. So it is a very common disease or common disorder.

And certainly with respect to a person’s weight, that increases the potential for the development of a lower back condition, if you have the two together; that is, you are overweight and you have the spondelo..? Well the thing – having a spondylolisthesis does predispose you to some back problems and being overweight does predispose you to some back problems. But she was asymptomatic, so I’m not sure you can say that’s the case, because as I said to you before, the majority of people with this condition remain asymptomatic throughout their life. And it’s the same with people that are overweight; the majority of them don’t have back complaints throughout their life.”

[35] The defendants relied upon the expert opinions of Dr Brett Halliday and Dr Tim Anderson.

Dr Halliday

[36] Dr Halliday is an orthopaedic surgeon. He examined the plaintiff on 26 February 2015. In his first report Dr Halliday opined that:

  • As a result of the accident the plaintiff sustained a “soft tissue injury cervical spine and right shoulder, soft tissue injury lumbar spine. The cervical and right shoulder injuries quickly went on to resolve”;[39]
  • The plaintiff is likely to have suffered with pain and discomfort following the accident for a period of three months;[40]
  • Although the plaintiff reported ongoing symptoms related to her lower back, he could not relate her lower limb symptoms to the accident;[41]
  • The plaintiff’s soft tissue injury of the lumbar spine is assessed at 0% under DRE I.

[37] In a supplementary report Dr Halliday confirmed that since his first report he had been provided access to an MRI scan of the plaintiff’s lumbar spine dated 8 August 2015. He said that “this shows degenerative change at L5/S1 discs, a Grade 1 spondylolisthesis with bilateral pars interarticularis defects”.[42] Further, Dr Halliday also opined:

“There is evidence on the CT scan from 04.02.2015 of degenerative changes of the lumbar spine at L5/S1 disc at L4/L5. These are manifested by degenerative disc bulge. There is evidence of bilateral pars interarticularis defects and a spondylolisthesis at L5/S1 on the CT scan and MRI. The MRI scan from August 2015, more than 3 years after the accident, shows degenerative changes at L4/5 and L5/S1. There is no evidence of root compression.”[43]

[38] Dr Halliday opined that there was a “high likelihood” that the plaintiff’s weight, which he noted at the time of his interview was 100 kg and a BMI of 38, was contributing to the ongoing lumbar spine symptomology.[44]

[39] Dr Halliday reiterated the opinion he expressed in his first report that:

“… over a period of several weeks, perhaps as long as three months, the soft tissue injury would have resolved and any ongoing symptoms beyond that, particularly appearing months later, are likely to be related to the pre-existing degenerative and development conditions.”[45] 

[40] In his evidence at trial, Dr Halliday was asked to explain the basis for this opinion:[46]

“Can you indicate to the court, Doctor, the background reasoning and facts assumed with respect to you proffering that opinion that the pain and discomfort would have lasted for three months following the motor vehicle accident? As with her cervical spine injury, the vast majority of soft tissue injuries from motor vehicle accidents go on to resolve over a period of weeks. In general, I would normally say six to eight weeks, but in cases of motor vehicle accidents in litigation I extend that to three months just to give the claimant the benefit of the doubt for that three month period….

… I understand you made an assessment that it was a minor soft tissue injury, what information did you have reference to by coming to that conclusion? I had available to me the notes from the hospital where she presented by ambulance after the accident, and the medical certificate from the hospital, admittedly issued by a different doctor based on the notes themselves.

…..

Did you have regard to the fact that the plaintiff then returned to work after the expiration of that medical certificate until early 2013? I thought this was consistent with the mechanism of injury, the injury sustained and then natural progression through to returning to work with capacity.

And why did you think this was consistent, Doctor? The vast majority of people involved in motor vehicle accidents who have neck or lower back injuries resolve and return to work.” 

[41] In cross-examination Dr Halliday:

  • Accepted that the plaintiff did suffer from lower back pain;[47]
  • Accepted that some soft tissue injuries do not resolve;[48]
  • Said that all soft tissue injuries will resolve in the absence of a disc injury or a ligamentous injury causing spinal instability;[49]
  • Accepted that the plaintiff’s back pain had been present constantly since the accident and that if there had been no back pain before the accident, then the cause of the back pain could be related to the accident as well as the other underlying factors mentioned in his second report;[50]
  • That although he assessed the plaintiff as having a 0% of impairment that did not mean that the plaintiff did not have pain or that she did not have symptoms.[51]

[42] Finally, in re-examination, Dr Halliday said:[52]

“… you accept that the plaintiff currently has lower back pain. In your opinion, what’s the current source of that pain? The source of the lower back pain is multi-factorial. There is evidence of a pre-existing asymptomatic spondylolisthesis, which is a development condition of the lumbar spine which Ms Cornwell was completely unaware that she had and never had any symptoms before. There is evidence of degenerative change in the lower lumbar discs of L4/5 and L5/S1 on the MRI. And these coupled with the weight issues will all contribute to lower back pain and prolongation of symptoms. There has also been a car accident.”

Dr Anderson

[43] Dr Anderson, who is not qualified as an orthopaedic surgeon, examined the plaintiff on 21 April 2016. In his first report he noted that there was pain in the plaintiff’s lower lumbar spine with radiation slightly towards the right.[53] He opined:

  DIAGNOSIS 

  1. Miss Cornwell has a history of what appears to have been relatively minor soft tissue injuries to her neck and right shoulder complex in the vehicle accident of 07 July 2012. It also looks as though there has been an injury to her lower lumbar spine. This however also does not appear to be particularly severe. Comment has already been made about the possibility of a spondylolisthesis.

CAUSE

  1. Her current condition is related to the vehicle accident of July 2012. There is a possibility that there may have been an underlying spondylolisthesis condition although this has not been confirmed yet. Her excess weight would also play a part in the perpetuation of the low back condition.”

[44] In his supplementary report, which was prepared after he was provided with X-rays and CT scans of the plaintiff’s lumbo-sacral spine, Dr Anderson opined that the radiological reports confirmed that the plaintiff had spondylolisthesis at the L5/S1 articulation and associated degenerative changes. He said that this was a pre-existing condition although it would have been aggravated by the accident.[54] He also regarded the plaintiff’s weight as a further factor contributing to her condition although he noted that the extent to which a factor such as this and the effects of the vehicle accident were contributing to her continuing condition was extremely difficult to quantify.[55]

Whether the plaintiff sustained an injury in the accident which has not resolved

[45] It will be obvious from the competing submissions of the parties that a calculation of the quantum of the plaintiff’s damages is ultimately dependent on whether or not I am satisfied that as a result of the collision the plaintiff suffered an injury to her lumbar spine which was more than transitory in nature. That therefore is the first issue which I must decide.

[46] The plaintiff submits not surprisingly that I would find the plaintiff as an honest and reliable witness and that having regard to the evidence as a whole, including the expert medical evidence, I would be satisfied that the plaintiff did suffer a lumbar spine injury in the collision which has not resolved and will be likely to persist for the rest of the plaintiff’s life. Conversely, and again not surprisingly, the defendants submit that there is evidence which demonstrates that the plaintiff is an untruthful witness in some aspects of her claim and that I would not find her to be an honest and credible witness.

[47] One basis upon which the defendants submit that I should find that the plaintiff was an untruthful witness relates to her claim for past economic loss. The defendants submit that the plaintiff’s sworn evidence at trial, when compared with what the plaintiff claims for past economic loss in the statement of claim as well as her quantum statement, demonstrate a falsehood on the part of the plaintiff calling into question her credibility as a witness. The defendants contend that both in her statement of claim and in her quantum statement the plaintiff’s claim for past economic loss is calculated for the entire period from her expected return to work on 1 December 2013 following maternity leave. The defendants assert that this is “patently untrue” having regard to the plaintiff’s sworn evidence at trial concerning, in particular, her son’s medical condition.

[48] To appreciate the defendants’ submissions on this point it is necessary to refer to the relevant parts of the evidence. The statement of claim particularises the claim for past economic loss over two discrete periods:

 Past economic loss:

  1. (a)
    07.07.12 to 20.04.13

$800.00 net per week for 42 weeks = $33,600.00.

  1. (b)
    01.12.13 to 24.07.15

$800.00 nett per week for 85 weeks = $68,800.00.

  Expected earnings:   $101,600.00

  Less amount actually earned:  $45,737.00

  Total past economic loss:  $56,863.00”

[49] In her quantum statement the plaintiff says the following:

“25. Had it not been for the injuries I sustained in the accident, I would have continued in full-time employment until the 28th April 2013 and then I would have taken leave from my employment due to the impending birth of my son, Ryan, who was born on the 31st May 2013. I would then have returned to full-time employment by the 1st December 2013 when Ryan had turned six months of age. I had six months paid parental leave and I could not afford any more time off work.

  1. Prior to the accident, I intended to continue studying and completing courses in my employment and I consider that I would have progressed to become a Store Manager by the 1st September 2015 and that I would have continued in that role.
  1. In November 2013, I applied for work at McDonald’s however, the only position available was a full-time position and I knew I could not do full-time hours because of my back pain. On 5th December 2013, I obtained work at Subway Ingham. The only work that was available from Subway was casual work usually from 5.30pm to 8.30pm two days a week.”

[50] At trial the plaintiff said the following in her evidence-in-chief:[56]

“Could you tell the court, if you hadn’t had the accident, what was your plan with respect to work and time off after having Ryan? So I would’ve had my son, went on my maternity leave, and then I would’ve come back to work for McDonald’s and done the rest of my courses through McDonald’s to eventually become store manager.

And how long did you intend to have off work had you not had the back injury? Six months.”

[51] The plaintiff then described in her evidence-in-chief her return to work after the birth of Ryan:[57]

“After having Ryan in May 13, your next employment was at Subway Ingham? Yes.

 Did you have difficulty there? Yes I did.

Could you explain the difficulty you had there? Main difficulty I had there is that there was no chair that – we weren’t allowed to sit down. We always had to be moving.

  Why was that difficult for you? Because standing.”

[52] The point raised by the defendants is that what the plaintiff failed to disclose in her evidence-in-chief, and indeed only disclosed for the first time in cross-examination, was the fact that her son Ryan had been born with only one kidney and how that would have prevented her from returning to full time work after her maternity leave ended even if she had wanted to.

[53] The medical condition of the plaintiff’s son emerged in cross-examination almost as an aside in an answer the plaintiff gave when she was being questioned as to her reasons for taking time off work in 2017. The relevant portion of the plaintiff’s evidence in cross-examination was as follows:[58]

“Now – in the quantum statement – this is paragraph 29, your Honour. In February of 2017, you resigned your employment and you ceased working on the 5th of March. You took approximately two months off to rest and recuperate? Two months off.

  ……………

And you told her told her [the plaintiff’s HR manager at McDonald’s] that you needed to take time off for personal reasons? Yes.

And those personal reasons were the breakdown of your relationship? Yeah, and it was also my leg and my back, but I never complained about it to my co-workers, only because I’m that financial difficult – I was literally working to keep my car, because I had a car for my son, because my son’s got one kidney, and I was travelling back and forwards from Townsville Hospital.

Okay? So I had to do what I had to do.

Okay? I didn’t want to work. I don’t want to work. It’s hard with a kid. I can’t live off Centrelink and I’ve got to raise him right.”

[54] The medical condition of the plaintiff’s son was then explored with her later in cross-examination:[59]

“When did that first come to light [that Ryan only had one kidney]? Well, they picked up in my ultrasounds that it wasn’t forming properly and they weren’t sure what they were going to do about it until he was 12 months, 13 months.

All right. And what is the treatment regime that he was to undertake? You indicated you needed to travel down to Townsville fairly regularly? Yeah. So from when he was born up until – I think they took the kidney out at 14 months, 15 months. I had to travel up to Townsville regularly and then we had the operation. Then I had to travel back down there for another two, three months. And since then we haven’t travelled.

    …….

What did that necessitate on a daily basis? What did you need to do as his mum? Well, as his mother, if – because he was in a lot of pain, there was a lot of sitting down and nursing and holding him.

 And at that stage it would have been impossible for you to have worked if work was available? Yeah.

And how long did these conditions go on for? Six months? Nine months? Yeah around six months, nine months.

…………….

So when did the requirement to travel backwards and forwards to the Townsville Hospital cease? A couple of weeks after the operation. And then I was just going into town to get ultrasounds.” 

[55] Both in oral and written submissions, the defendants challenge to the credibility and reliability of the plaintiff’s evidence in respect to her claim for past economic loss, as I understand it to be, is this: first, the plaintiff calculated her past economic loss both in the statement of claim and the quantum statement for the “entirety of the time frame” commencing from when she expected to resume employment after the expiration of her six months paid maternity leave on 1 December 2013. However, because of her son’s medical condition, which the plaintiff only made mention of for the first time in cross-examination, the plaintiff was incapable (because of the ongoing need to transport her son to Townsville for medical treatment) of returning to full time employment for up to 17 months after he was born.[60] This would have meant that regardless of any back injury, the plaintiff was unable to return to full time employment because of her son’s medical needs until around 31 October 2014. Therefore, the plaintiff’s claim for past economic loss, which she calculated in the statement of claim and quantum statement for the entire period from 1 December 2013 without making any allowance for her son’s medical condition, involves a falsehood directly impacting the credibility and reliability of the plaintiff’s evidence. Moreover, any adjustment to past economic loss[61] the plaintiff now seeks to make in written submissions[62] for the effects of her son’s medical condition is no answer to the falsity of that component of her claim as calculated in her quantum statement. In other words, the plaintiff was dishonest in making a claim for past economic loss for the entire period from 1 December 2013 knowing that she was unable to return to full time employment until at least October 2014 because of her son’s medical needs.

[56] Secondly, the defendants also contend that whilst one of the periods claimed by the plaintiff in her quantum statement for past economic loss is the entirety of the period 1 September 2015 to 30 June 2017, there is compelling evidence that for at least two months of that period (being from when she ceased work on 5 March 2017), her inability to work was for personal reasons unrelated to any back injury she purports to have been suffering from. Again, the defendants submit that this also demonstrates an underlying falsity in plaintiff’s claim for past economic loss for that period and, by extension, this also demonstrates that the plaintiff is not a witness of truth. 

[57] In response, the plaintiff contends that her claim for past economic loss discloses no falsity such that the court would find her to be an untruthful or unreliable witness. It is submitted by the plaintiff, that her claim for past economic loss has never been calculated, either in the statement of claim or quantum statement, for “the entirety of the timeframe” for the period the plaintiff did not work. First, the plaintiff contends that in calculating past economic loss the plaintiff has made no claim for the six month period from Ryan’s birth until 1 December 2013 to reflect the time the plaintiff was on paid maternity leave. Secondly, accepting the plaintiff’s evidence that Ryan’s kidney was removed when he was 14 or 15 months old and that the plaintiff then had to travel to Townsville for a further two or three months after this, then on this timeframe any care or travel undertaken by the plaintiff would have ceased when Ryan was about 17 months old and therefore by 31 October 2014. It is therefore submitted that this would leave an 11 month period (1 December 2013 to 31 October 2014) which is the subject of the defendants’ criticism of the plaintiff’s evidence of her inability to work because of her son’s medical needs.

[58] Next the plaintiff submits that the evidence of the plaintiff has never been that she was incapable of working because of Ryan’s medical condition, and that where in her evidence the plaintiff agreed with the proposition that “at that stage it would have been impossible for you to have worked” it is clear what the plaintiff was referring to was the period following when Ryan had his operation. The plaintiff supports her argument by relying upon the pay records relating to the plaintiff’s employment with Subway from December 2013 to August 2015 after which she resumed employment at McDonald’s.[63] The plaintiff’s PAYG payment summary for the year ending 30 June 2014 indicates that her employment at Subway commenced on 5 December 2013[64] and that the plaintiff received gross payments of $5,433 in that financial year.

[59] The plaintiff also highlights that the Pays Report[65] discloses that the plaintiff was being paid weekly throughout her employment at Subway with the exception of two periods, namely 19 August 2014 to 23 September 2014 and 30 September 2014 to 21 October 2014 when she was not paid. Given that Ryan would have been 15 months old in August 2014, when the plaintiff had 5 weeks off work at Subway, the plaintiff submits that this corresponds with the time when the plaintiff recalled Ryan underwent his operation and when the plaintiff agreed that “at that stage” she was unable to work. Thus it is submitted that the evidence extracted from the plaintiff’s Subway pay records shows that following Ryan’s operation, the plaintiff was unable to work for a total of 8 weeks because of his ongoing medical needs (being the 5 week and 3 week periods disclosed in pay records). Other than this period, it is submitted that the pay records show that the plaintiff otherwise continued to work at Subway throughout the period of her employment there. That the plaintiff continued to work throughout the period of her employment at Subway is also supported, the plaintiff says, by the nett earning she derived from that employment detailed in paragraph 35 of the plaintiff’s quantum statement.

[60] It is therefore submitted on behalf of the plaintiff that contrary to the defendants’ submissions, the plaintiff’s claim for past economic loss has never been calculated on the basis she was incapable of working for the “entirety of the timeframe” contended for by the defendants. The plaintiff says that clearly she continued to work for the whole period save for the period of eight weeks following her son’s operation.

[61] Having regard to how the claim for past economic loss is pleaded in the statement of claim as well as how it is calculated in schedule “A” of the quantum statement, it is obvious in my view that the plaintiff’s claim for past economic loss has, as the defendants assert, been calculated without making any allowance for the fact that the plaintiff, because of Ryan’s medical needs, would not have been able to return to full time employment even if she was able to. The point raised by the defendants is therefore a valid one. Whilst the plaintiff asserted in paragraph 25 of her quantum statement that she would have returned to full-time employment on 1 December 2013 had she not been injured, clearly this would not have been possible given Ryan’s medical condition.

[62] The plaintiff’s calculation of past economic loss, both in the statement of claim and in the plaintiff’s quantum statement, makes no allowance for Ryan’s medical condition. Instead, past economic loss has been calculated from 1 December 2013 as the difference between what the plaintiff would have earned in nett income had she been employed on a full-time basis and what she actually earned. In written submissions the plaintiff now concedes that in light of the plaintiff’s evidence at trial, it would have been impossible for the plaintiff to work for a period of “six to nine months” when she had to attend to Ryan’s medical appointments and that an adjustment needs to be made to the claim for past economic loss because of this.[66]

[63] The point raised by the defendants of course is not what adjustment should be made to past economic loss in light of the plaintiff’s evidence in cross-examination concerning her son’s medical condition, but rather, her assertion in her quantum statement and in her evidence-in-chief that she would have returned to full-time employment had she not been injured in the collision is, the defendants submit, patently false given her concessions as to her son’s medical condition. The defendants also argue that the plaintiff’s concession in cross-examination as to her ceasing employment for two months in March 2017 for personal reasons, for which no allowance was made in her calculations of past economic loss, also makes her pleaded case patently false.

[64] Expressed another way, the argument raised by the defendants is that the plaintiff’s claim for past economic loss is premised upon a falsehood. The plaintiff’s claim has clearly been calculated both in the statement of claim and the plaintiff’s quantum statement on the basis that from 1 December 2013 until 31 October 2014 the plaintiff would have been employed full-time and that she would have remained in full-time employment thereafter. Yet because of the plaintiff’s evidence as to her son’s medical needs as well as her evidence that she ceased employment for two months for personal reasons, it is obvious that the plaintiff was incapable of returning to and maintaining full-time employment for reasons entirely unrelated to her injuries and therefore her claim for past economic loss, calculated as it has been on the basis that she would have done so, is based upon a falsehood.

[65] I accept the defendants’ submissions as to the plaintiff’s claim for past economic loss being calculated on the “entirety of the timeframe” which, as I have observed already, relates to that period from when the plaintiff asserts she would have returned to full-time employment on 1 December 2013 until after her son’s operation. I do not understand the defendants’ submissions to be that the plaintiff did not work at all over that period. Rather, the defendants submissions relates to the plaintiff’s assertion in her quantum statement that she would have returned to full-time employment. On the plaintiff’s own evidence she was incapable of doing so, at least until 31 October 2014, and therefore her claim for past economic loss over this timeframe as originally calculated was based, as even the plaintiff concedes, on an impossibility. Similarly, it is clear on the plaintiff’s own evidence that there was a period of two months from March 2017 when the she ceased employment for personal reasons and that this also contradicts the plaintiff’s claim for past economic loss over that period also predicated on her being able to maintain full-time employment had she not been injured.

[66] The real relevance of this aspect of the plaintiff’s claim raised by the defendants goes to the issue of the plaintiff’s credibility and reliability and whether the plaintiff’s assertion in her quantum statement that she would have returned to full-time employment on 1 December 2013, when obviously she could not have, involves a falsehood on the part of the plaintiff such that I would be persuaded not to accept her as a witness of truth. Thus the defendants submit that this aspect of the plaintiff’s claim shows her to be untruthful with the flow on effect that her credibility and reliability generally is now diminished. 

[67] Whilst a trial judge is entitled to make observations relating to the demeanour of witnesses in assessing the credibility and reliability of their evidence, it is now well accepted that such a methodology “is a notoriously crude and inaccurate methodology”.[67] Its defects were explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118, when they observed at [30]–[31]:

“[30]  It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly form the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co; (The “Palitana”):

… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

[31]  Further, in recent years, Judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility.”

[68] The defendants have also referred to observations on credibility contained in the judgment of Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431:

“Credibility” involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”

[69] The defendants’ criticism of the plaintiff’s evidence is, prima facie, not without merit. It is perplexing that Ryan’s medical condition after birth was not revealed anywhere in the plaintiff’s quantum statement and only came to light in cross-examination. It was obviously a matter which in my view was clearly relevant to the plaintiff’s claim for past economic loss because of her inability to resume full-time employment on 1 December 2013 after the expiration of her maternity leave. I have accepted that the plaintiff’s original claim for past economic loss was calculated without making any allowance for Ryan’s medical condition. That the plaintiff first made mention of Ryan’s medical condition when being cross-examined would suggest that she had not disclosed this prior to trial. This would explain why it is not referred to in the plaintiff’s quantum statement.

[70] In some circumstances a plaintiff’s failure to disclose a matter material to a claim for past economic loss will be devastating when assessing their credibility and reliability. The question for me is whether in the circumstances here can I be satisfied that the plaintiff’s failure to disclose her son’s medical condition and, flowing on from that, her assertion in her quantum statement that she would have returned to full-time employment when clearly she could not have, discloses a falsehood in respect to her claim for past economic loss such that I should not accept her evidence.

[71] Having carefully considered the evidence I am not satisfied that the plaintiff’s claim for past economic loss either involves a deliberate falsehood on her part or that her failure to disclose her son’s medical condition until cross-examination demonstrates that the plaintiff was being untruthful such that I should reject her evidence. My reasons for so concluding are as follows. First, I regard it as important how the evidence concerning the medical condition of the plaintiff’s son first emerged in cross-examination. As the relevant portion of the plaintiff’s evidence set out above shows, the plaintiff’s evidence as to Ryan’s medical condition was more of a passing reference by her in response to a question as to whether she had needed to take time off work for personal reasons in March 2017. Given that Ryan’s medical condition occurred in 2014, it was a response completely unrelated to the question being asked. It might be inferred in these circumstances the plaintiff was not seeking to hide her son’s medical condition. Indeed had that been her intention then she could have simply not mentioned it and no one would be the wiser to it. That she did, in the context of a question relating to personal issues she may have been suffering, persuades me that the plaintiff neither seems to have appreciated the relevance of Ryan’s medical condition to her claim for past economic loss nor was she endeavouring not to disclose it. Indeed the relevance of it only became evident through further cross-examination.

[72] Secondly, in my view, it does not necessarily follow that the plaintiff was being deliberately untruthful when asserting in her quantum statement that she would have returned to full-time employment had she not been injured when on her own evidence she was incapable of doing so for causally unrelated factors such as her son’s health. The plaintiff’s quantum statement was admissible under section 92 Evidence Act 1992 (Qld). In Hunt v Lemura & Anor (No 1) [2011] QSC 426, Henry J at p.6 observed:

“Turning finally to the basis for the admissibility of the quantum statement in this case, section 92 of the Evidence Act rendered admissible those parts of the statement containing information which the plaintiff would have been permitted to give in evidence-in-chief. Mr Crow submitted in effect though, that even those passages were not really the statement of the plaintiff and that in truth the statement was a contrived document probably authored by her lawyer and was thus not “direct” oral evidence. The submission was likely provoked more so by the quantum calculation components of the statement than by the paragraphs containing first-hand evidence from the plaintiff.

The reality is that lawyers commonly play a significant role in taking affidavits of witnesses which are later filed or tendered in evidence. Regardless of whether a lawyer has assisted in the taking of a statement or affidavit, the ultimate question is whether or not the evidence being provided therein is the evidence of the statement’s purported author.”

[73] In her evidence-in-chief the plaintiff swore that the contents of her quantum statement were true and correct.[68] Being a sworn document the contents of the quantum statement are therefore to be accepted as true and correct. Nevertheless, as was observed by Henry J, if it is accepted that the quantum statement was prepared by the plaintiff’s lawyers from information which she supplied to them, then at least one explanation for both Ryan’s medical condition not featuring in the quantum statement as well as the plaintiff’s positive assertion that but for her injuries she would have returned to full-time employment, is that the plaintiff simply did not appreciate its relevance to her claim for past economic loss to disclose it. If that be accepted then her non-disclosure in those circumstances could more properly be categorised as inadvertent or an oversight rather than deliberate.

[74] It needs also to be kept in mind that in December 2013 the plaintiff did in fact return to employment, albeit part-time, at Subway. Her claim for past economic loss is calculated on her being unable to return to full-time employment rather than not being able to return to employment at all. That is also relevant in my view because it might also provide an explanation as to why the plaintiff may not have appreciated the importance of disclosing her son’s medical condition before trial, again because the plaintiff was not asserting she was incapable of working at all because of her back injuries but rather, that she was incapable of returning to full-time employment. The effects of her son’s medical condition in that context would be subsumed into the plaintiff’s primary contention that the reason she was unable to return to full-time employment was because of her back injury, and therefore the importance of her son’s medical condition was lost on the plaintiff such that she did not disclose that at an earlier time.

[75] Commenting upon the potential limitations of a document such as a statement or an affidavit prepared or settled by a party’s lawyers being regarded as conveying a complete or accurate picture of a party’s evidence, Pembroke J in Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 at [24]–[27] observed:

“[24] It is well known that eminent jurists with unparalleled trial experience have expressed misgivings about the elicitation of evidence-in-chief by affidavits in cases whose success or failure depends on disputed representations and conversations. A colourful but apposite aphorism frequently invoked by Hon T E F Hughes QC, and attributed to Lord Buckmaster, is that “the truth sometimes leaks out of an affidavit — like water from the bottom of a well”. A similar observation has also been attributed to Matthew L J. See A H Engelbach, Anecdotes of Bench & Bar; London, G Richards Ltd, 1913 page 243. And Lord Griffiths used similar language in his speech to which I have already referred — transposing “rusty bucket” for “well”.

[25] Justice Emmett elaborated more fully on the difficulties to which affidavits and witness statements can give rise in Practical Litigation in the Federal Court of Australia — Affidavits (2001) 20 Australian Bar Review 28:

Where evidence is controversial, particularly where credibility of the witness is involved, the adducing of the evidence in written form is often undesirable and can be quite unfair. An honest witness, albeit nervous, in unfamiliar and overbearing surroundings, will be better able to defend in cross-examination evidence given by the witness in his or her own words. With the very best of intentions a lawyer who settles an affidavit or a witness statement will invariably reduce the language of the witness to the lawyer’s own language. That may entail changes in meaning and emphasis that, although not intended, may expose a witness to unnecessary difficulties in the course of cross-examination. On the other hand, a dishonest witness will always be assisted by having evidence put into credible form by a lawyer. Where an assessment of credit is required, a judge will have a much better prospect of assessing a witness who gives evidence-in-chief orally rather than being exposed to cross-examination immediately upon entering the witness box.

[26] In 1996 in the Access to Justice Report, Final Report (HMSO), 1996 at [55], Lord Woolf pithily observed:

Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.

[27] And as long ago as 1975, the New South Wales Law Reform Commission, in Working Paper 14, (1975) - Procedure: Common Law Pleadings, also observed (paragraph 7.3): “affidavit evidence is said (and with justification) to be more the evidence of the legal advisor than the witness.” 

[76] The observations of Pembroke J were directed of course to a statement or affidavit prepared by a witness’ lawyers, but the same cautionary limitations explained by him apply equally, in my view, to a quantum statement. Moreover, one of the difficulties in assessing whether the plaintiff has deliberately failed to disclose her son’s medical condition with the result that her quantum statement involves a falsehood for part of her claim for past economic loss is that no such proposition was put to the plaintiff in cross-examination. Presumably had the plaintiff been asked to explain her non-disclosure of her son’s medical condition she would likely have proffered some explanation for it. The plaintiff submits the defendants’ failure to put to the plaintiff that her non-disclosure was deliberate or for the purpose of falsifying her claim for past economic loss is an example of being “willing to wound, yet afraid to strike.”[69]

[77] The plaintiff’s criticism is in essence an application of the rule in Browne v Dunn (1893) 6 R 67 (HL), where in explaining the rule Lord Herschell observed:

“I cannot help saying that there seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested to indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit … I have always understood that if you intend to impeach a witness you are abound, whilst he is in the box, to give him an opportunity of making explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

[78] The criticism now raised by the plaintiff was also considered by Wells J in Reid v Kerr (1974) 9 SASR 367, where at 374 his Honour said:

“…I observed questions that half hinted at some imputation, and yet that imputation was never followed up, was never carried through, and was never put fairly and squarely to a witness so as to enable him to cope with it. Then what was sought to be done was that such answers as the witness was able to give with respect to the hinted imputation were used as the basis for an address to the jury and inviting them to draw an inference that carried the imputation. I regard such a course of cross-examination and address as unfair. It represents the sort of conduct described by Alexander Pope in the well-known passage in which he condemned those who were willing to wound, and yet afraid to strike. I do not for one moment suggest that counsel should abandon the arts and fair devices of cross-examination. I am well aware that there are more ways of taking a fort than by frontal attack, but I also hold it to be a fundamental principle that, when all arts and devices of cross-examination have been exhausted for the purpose of testing whether a particular witness merits adverse criticism, then, at some stage, and in some fair manner, he should be given the opportunity of meeting the implication and answering it. A trial judge is placed in a difficult position if such a principle is not adhered to. If he intervenes prematurely, he may destroy a carefully planned cross-examination and cause a miscarriage of justice. If he intervenes at all, at some stage he may be met by the statement from counsel that the imputation was never intended.”

[79] I accept the plaintiff’s submission that there is no evidence that the plaintiff’s non-disclosure of her son’s medical condition was deliberate. I also agree with the plaintiff’s submissions that in the absence of any proposition being put to the plaintiff that she had deliberately withheld her son’s medical condition the plaintiff has not had the opportunity to provide an explanation for the non-disclosure. This becomes important when assessing the plaintiff’s evidence. Now it might well be that the true importance of the plaintiff’s disclosure of her son’s medical condition in cross-examination and its relevance to her claim for past economic loss only became apparent after the evidence had concluded. Whether that be the case or not, the situation remains that because it was not put to the plaintiff that her non-disclosure was deliberate the plaintiff has not been afforded the opportunity to give an explanation which would have assisted me in assessing her evidence on this point.

[80] In any event, I am not persuaded that the plaintiff’s non-disclosure was deliberate. Instead I am satisfied that her non-disclosure of her son’s medical condition was inadvertent and most likely a result of oversight on her part due to a lack of appreciation by her as to its relevance to her claim for past economic loss. How the plaintiff came to disclose her son’s medical condition in cross-examination supports my view. As I noted earlier, the plaintiff’s disclosure was non-responsive to a question in which she was asked to provide an explanation for her taking time off work in March 2017. If the plaintiff’s intention was to falsify her claim for past economic loss it is curious that she would make mention of it in this way. The impression I have formed as to the way in which the evidence came out is that the plaintiff simply did not appreciate its relevance to her claim.

[81] In assessing whether the plaintiff’s non-disclosure of her son’s medical condition was deliberate or inadvertent, I must also have regard to her background. Having carefully observed the plaintiff give evidence, she appeared to me to be an unsophisticated witness which is in keeping with both her level of education and her employment history which has predominantly been in the areas of hospitality and customer service. Whilst she has undertaken further vocational training courses relating to her employment with McDonald’s, having regard to her background, I detected no deliberate evasiveness in either the plaintiff’s evidence generally or in the circumstances by which she first came to mention her son’s medical condition.

[82] Acknowledging the caution that needs to be applied when assessing the credit of a witness based upon demeanour alone, I would add that I was nevertheless impressed by the plaintiff as a witness. She appeared to me to be someone doing her level best to give a credible account of the circumstances of the accident and the effects of the injuries which she says she suffered in the accident. The plaintiff made a number of concessions in her evidence which in my view also provide support for her as a witness of credit. For example, in cross-examination the plaintiff readily conceded her relationship difficulties and those, at least partly, being a reason for her taking time off work.[70] The plaintiff also made concessions as to her capacity to undertake domestic tasks around the house such as watering the garden and as to her capacity to look after her son.

[83] In the end the plaintiff’s non-disclosure of her son’s medical condition, her assertion in her quantum statement that she would have returned to full-time employment had she not been injured when clearly that would not be so and her concession that in March 2017 she ceased work for personal reasons, does not persuade me that the plaintiff has deliberately falsified part of her claim for past economic loss. I am satisfied that any non-disclosure by the plaintiff was unintentional.

[84] However, a further matter raised on the evidence is whether, even if I am satisfied that the plaintiff was a credible witness generally, her failure to complain of back injury immediately after the accident should persuade me that the plaintiff’s evidence that she continues to suffer back pain is not credible. The observations of Lord Pearce in Onassis set out earlier are especially pertinent to this issue. As Lord Pearce observed, a witness such as the plaintiff who believes they are morally in the right may well unconsciously conjure up a legal right that did not exist.

[85] Whether the plaintiff did, and continues to suffer back pain caused by the collision is clearly a critical issue in determining the plaintiff’s claim. The defendants contend that the plaintiff’s back injury was minor and transitory and fully resolved. The plaintiff says otherwise.

[86] The expert medical evidence is entirely consistent that the plaintiff had pre-existing spondylolisthesis in her lumbo-sacral spine prior to the collision which was asymptomatic. There is no evidence that in the absence of the collision the plaintiff would have had symptoms in her lumbo-sacral spine.

[87] The defendants submit on various bases that there is a weak causal connection between the plaintiff’s ongoing back complaints and any injury sustained by her in the collision. First it is submitted that the plaintiff made no mention of lower back pain to ambulance officers who transported her to the Ingham Hospital nor did she make any mention of lower back pain to staff at the hospital who treated her. Two observations can be made in respect to this submission: Drs Maguire, Wallace, Halliday and Anderson each agree that the plaintiff did suffer an injury to her lower back as a result of the collision. Therefore despite her making no mention of suffering lower back pain immediately after the collision there is no dispute on the medical evidence that the plaintiff did so. Further, Dr Maguire in his report states that it is not uncommon for a person to present with symptoms which may dominate following a direct impact from a motor vehicle accident travelling at speed and to subsequently develop other symptoms over subsequent days. Therefore if I accept this part of the evidence then it is conceivable that the plaintiff’s lower back pain became more apparent in the days following the accident. 

[88] Secondly, the defendants submit that the plaintiff had no significant attendances at the GP following the accident.  I have in [25] above endeavoured to summarise the plaintiff’s post-accident medical records relevant to the matters in issue. The medical records indicate that on 12 July 2012, five days after the accident, the plaintiff presented at her GP complaining of lower back pain. The medical records also indicate subsequent attendances by the plaintiff on her GP when she also complained of lower back pain.

[89] Thirdly, the defendants also raise for consideration whether the plaintiff’s back pain resulted from the accident, whether it is referrable to her spondylolisthesis or whether her pre-existing condition was symptomatic as a result of her pregnancy. The expert evidence is universal that the plaintiff had a pre-existing but asymptomatic spondylolisthesis condition. Dr Wallace accepted that there is an increased risk of back pain during pregnancy if you had spondylolisthesis. However it was not suggested to Dr Wallace that the plaintiff’s pre-existing condition was made symptomatic as a result of her pregnancy as opposed to the collision. Dr Maguire’s evidence was that the “key” in this case was the fact that the plaintiff was asymptomatic prior to the collision and he discounted the pregnancy theory.[71]

[90] I have earlier summarised the expert medical evidence. There is a clear conflict between the opinions of Dr Wallace and Dr Maguire on the one hand and those of Dr Halliday and Dr Anderson on the other as to cause of the plaintiff’s back pain. Dr Halliday opined that the plaintiff’s lumbar spine soft tissue injury would have resolved over a period of several weeks, perhaps as long as three months and that any ongoing symptoms beyond that time would likely be related to pre-existing degenerative and developmental conditions. Dr Halliday’s opinion was based upon his understanding from the plaintiff’s medical records that she first reported back pain on 1 August 2012, that she was prescribed Panadeine Forte on 6 September 2012[72] and that he had not seen any evidence that from within a day of the accident the plaintiff had ongoing lower back pain.[73] Dr Halliday conceded in cross-examination that the factual basis which he had assumed when providing his opinions was that stated in his report as follows:[74]

“Ten months after the accident she gave birth and according GP notes some months after that developed lower back pain and right-sided leg symptoms.”

[91] When asked in cross-examination were it found that the plaintiff had lower back pains and right leg symptoms from a period within a day of the accident whether he would accept a causal connection between the plaintiff’s back condition and the accident Dr Halliday said:[75]

“If you read the paragraphs above on the general practitioner’s notes, I have documented the fact that she had reported back pain on the 1st of August 2012 and then given a repeat script for Panadeine Forte on the 6th of September 2012. I assume those to be true.”

[92] When then asked in cross-examination to assume that prior to the accident the plaintiff did not have any lower back pain but that from within a day of the accident she had ongoing back pain, whether on those facts the plaintiff’s lower back pain was related to the accident Dr Halliday answered “I haven’t seen any evidence of that”.[76] When pressed to assume those facts Dr Halliday said:[77]

“Okay. Then if the back pain had been present constantly since the accident then it can be – and there is no back pain before the accident, then there are – the cause for the back pain can be related to the accident as well as the underlying other factors mentioned in my second report that I wrote this week.”

[93] What is clear both from Dr Halliday’s first report as well as his evidence at trial is that when considering the plaintiff’s medical records he appears to have been unaware that the plaintiff had presented to her GP on 12 July 2012, only 5 days after the accident, complaining of lower back pain. There is also other evidence which would support a finding that the plaintiff had been experiencing lower back pain from the time of the accident, including:

  1. (a)
    Largely unchallenged evidence of the plaintiff herself that she had been in good health prior to the accident[78] and that her back pain had been constantly present since the accident;[79]
  2. (b)
    Unchallenged evidence of Ms Barra concerning her observations of the plaintiff before and after the accident;[80]
  3. (c)
    Unchallenged evidence of Mr Spann concerning his observations of the plaintiff before and after the accident with respect to pain;[81]
  4. (d)
    The plaintiff’s medical records with respect to her attending upon her GP complaining of back pain.

[94] There is of course contrary evidence relied upon by the defendants to support a finding that the plaintiff has not experienced symptoms of back pain whilst at work since the accident. Gordon Howell, who worked with the plaintiff at McDonald’s from October 2012 to 2013 and again in 2015 and 2016, gave evidence that he was unaware of the plaintiff having been involved in a motor vehicle accident in 2012[82] and that as part of her duties she would have carried out manual tasks such mopping and lifting boxes although he could not be sure of the weight of stock items she might have carried.[83] He said that in neither period that he worked with the plaintiff had she made any complaint to him concerning her carrying out her work related duties nor had he observed her to be in any pain when at work.[84]

[95] Brett Flanagan was the owner, and store manager, of McDonald’s Ingham between 2013 and 2016. He said that the plaintiff had made no complaint to him as to any difficulties she was experiencing in carrying out her work duties.[85] He said that he had observed the plaintiff carrying out manual tasks such as mopping floors and wiping down benches although he was a little vague in recalling this.[86] He did not observe the plaintiff experiencing any difficulties in carrying out those tasks nor did she complain to him about experiencing any pain when at work. He agreed that the plaintiff was a very good worker. The plaintiff gave evidence that she never complained to her co-workers because of her financial difficulties, concerns about her job security[87] and that she “had to do what I had to do”.[88]

[96] The evidence of Ms Barra and Mr Spann in respect to their observations of the plaintiff before and after the accident were unchallenged. Having had the opportunity to observe the witnesses’ give evidence including Ms Barra and Mr Spann, and having regard to the evidence of Ms Barra and Mr Spann going unchallenged, I accept their evidence as credible and reliable.

[97] A further matter raised by the defendants to buttress a submission that I should find against the plaintiff as a credible and reliable witness relates to her having been able to work full-time for some  periods since the accident. The plaintiff concedes that upon returning to work at McDonald’s on 18 July 2012 up until her ceasing work on 28 April 2013 when she commenced maternity leave that for most of that period she was working full-time hours. The plaintiff’s pay records bear out that for the majority of the weeks in the period after the plaintiff returned to work she was working 40 hours per week. The plaintiff also concedes that on 26 September 2017 she commenced a temporary two month full-time position as a shift supervisor at McDonald’s.

[98] The defendants also point to the capacity of the plaintiff to carry out most household tasks such as cooking and cleaning, that she takes care of her son including preparing his meals and dropping him off to kindy each day, that she does not regularly consult her GP about her back pain nor does she require regular remedial massages to help her deal with the pain. These are some of the additional matters which the defendants submit counter against a finding that the plaintiff has and continues to suffer back pain which will incapacitate her from engaging in full-time employment. Having regard to these matters it is therefore submitted that I should find the plaintiff to be untruthful as to the claims she makes as to her injury or that I should find those claims to be unreliable.

[99] I have scrutinised the complaint’s evidence with great care, as I have found already, the plaintiff generally impressed me as an honest and credible witness when she gave evidence. Importantly for me, she was prepared to make concessions in her evidence which in my view were consistent with her doing her level best to give an honest account. For example, the plaintiff was candid in her evidence as to the kinds of domestic tasks she could perform without help such as cleaning and cooking and she was equally candid as to the care she provides for her son.

[100] Whilst I acknowledge the potential relevance of the matters raised by the defendants as to the veracity of the plaintiff’s claims to have suffered an injury in the accident that now diminishes her capacity to work full-time, ultimately those matters do not persuade me that I should be sceptical of the plaintiff as a witness or to reject her evidence as to having suffered a back injury in the accident which was not transitory in nature. In my view, as the plaintiff submits, the matters raised by the defendants need to be considered in a broader context. First, the plaintiff working full-time for some of the periods since the accident was, as the plaintiff explained, borne out of necessity. The plaintiff was working to support herself. She explained that she had financial difficulties and that in order to provide for herself she had to continue to work full-time hours especially when she found out she was pregnant. The plaintiff is clearly stoic in her attitude to life and there was evidence adduced from various witnesses that she is a hard worker. Given her disadvantaged background it is understandable that the plaintiff would have forced herself to continue working full-time after the accident even though she was in pain because she had no other choice given the circumstances she found herself in.

[101] It is also relevant to an assessment of the plaintiff’s credit that when she did return to work from maternity leave in December 2013 it was on a part time basis. The plaintiff’s evidence is that whilst she had applied for a job back at McDonald’s the only position available to her was a full-time position. Because of her back pain she says that she knew she could not accept a full-time position. Instead she elected to take a job at Subway which was the only part time work available to her at that time and which involved her working two shifts a week from 5.30pm to 8.30pm. In the end she says that her work at Subway became too painful for her because she had to stand for the entire shift. After about 18 months the plaintiff commenced casual employment back at McDonald’s. The plaintiff’s pay records from when she recommenced work at McDonald’s in August 2015 show that for the majority of weeks she worked part-time hours. There have been a number of weeks since the plaintiff recommenced at McDonald’s that she has worked full-time hours and as I have already noted the plaintiff commenced a full-time position at McDonald’s for two months in September 2017 as a shift supervisor.

[102] Whilst I accept that the plaintiff has demonstrated some capacity to work full-time work hours for periods since the accident, this does not persuade me to conclude that the plaintiff’s claim that she suffered a back injury in the accident from which she continues to suffer significant and ongoing pain is false or demonstrates that the plaintiff’s evidence is unreliable. I accept the plaintiff’s explanation as to why it was she did return to full-time work shortly after the accident and why after she returned from maternity leave she has at times worked full-time. The plaintiff’s evidence as to how she is able to cope with working extended hours is also relevant in my view. In essence what the plaintiff says is that she relies upon Nurofen Plus to remediate her back pain and to assist her getting through her shifts.[89] There is nothing in the explanations given by the plaintiff as to why it is she has been able to work full-time hours which I find inherently implausible. The observations of work colleagues provides independent support for the plaintiff’s claims that she does experience back pain when at work and has devised coping strategies to enable her to get through her shifts.

[103] Furthermore, in addition to the independent support Ms Barra and Mr Spann give to the plaintiff’s evidence that she has continued to suffer from lower back pain since the accident, including when she is at work, I must also have regard to the evidence of these witnesses when assessing the conflict in the medical evidence which arises here. The approach to resolving conflicts in medical evidence such as above was explained by Sofronoff P in McGory v Medina Property Services Pty Limited [2017] QCA 234, where at [63]-[70] his Honour said:

“[63] Conflicts in expert opinions can raise difficult problems for judges. Areas of specialised knowledge can raise issues about which it may be difficult to make judgments. Medical evidence given in personal injuries cases can sometimes be of this character. Particularly when two experts base their ultimate conflicting opinions upon exactly the same assumptions of fact, it may be a difficult task for a trial judge to determine which of the two conflicting views to accept.

[64]  This was not such a case.

[65] The respective medical practitioners were confronted, it seems, with differing presentations by the applicant upon examination. However, the problems presented to such experts had to be distinguished from the issues which the trial judge had to determine. The learned trial judge in this case was not limited by the same constraints as the medical experts. Unlike those experts, the trial judge had the benefit of comprehensive evidence of symptomology given by the applicant which had been supported in material respects by Ms Black and Ms Tucker. Having accepted that evidence the learned trial judge was obliged, as a matter of legal reasoning, to take those findings into account when assessing which of the experts’ opinions he should accept.

[66] His Honour explained that he preferred the evidence of Dr Walters to that of Dr Cook because:

“In particular, I note his observations that three different doctors examined the plaintiff at times more proximate to her initial injury and each observed significantly greater, if not a full range of movement in the plaintiff’s shoulders. Dr Walters’ view was reinforced by both the plaintiff’s failure to seek medical attention, a fact which of itself would suggest any difficulties were not overly troubling, and the absence of supporting evidence of significant injury in the x-rays/MRI scans and MR arthrogram.”

[67]  This is an insufficient basis upon which to prefer the opinion of Dr Walters to that of Dr Cook. It fails to take into account at all the findings which his Honour made, and which his Honour had correctly made, about the applicant’s evidence and that of Ms Black and Ms Tucker. Indeed, apart from being directly germane to the question of the symptoms caused immediately after the incident, that evidence was also relevant to the issue of “the plaintiff’s failure to seek medical attention” and the reasons for that failure. His Honour’s observation to that effect echoes the evidence of Dr Walters referred to earlier. As I have said, he concluded his first report with the sentence:

“I think it is noteworthy that despite having to cease employment because of her symptoms [Ms] McGrory has apparently not sought Specialist medical advice regarding her shoulders during 2012 and 2013 years.”

[68]  That observation was not one which it was relevant for Dr Walters to make as a medical practitioner. It was an argumentative observation that, if relevant, was one which the respondent’s counsel could make. It was not a medical opinion. It was also an observation that could be given no weight unless it appeared that Dr Walters was aware of the evidence which the applicant had given at paragraphs 18 to 25 of her Quantum Statement.

[69]  Undoubtedly, in making that statement, Dr Walters was making the point that an inference could be drawn that the applicant had not suffered very much from the date of the incident until her resignation from the fact that she did not feel the need to seek medical attention. However, the applicant’s evidence, about which Dr Walters was ignorant, would not have allowed such an inference to be drawn. Her evidence about why she did not seek medical help was not challenged in cross-examination. No point as raised by Dr Walters was put on behalf of the respondent at trial and neither the inference drawn by Dr Walters nor his Honour’s subsequent finding were open.

[70]  In a case such as the present, in which the evidence as a whole contains ample material upon which findings of fact can be made about the post-incident symptoms of a plaintiff and in which a submission is expressly made about the significance of that evidence to the ultimate issues of injury caused by negligence, a trial judge who is performing the function of finding facts is obliged to consider that evidence comprehensively. Evidence of the kind given in this case cannot be put to one side so that a conflict between the evidence of medical experts is decided upon a narrow, and possibly mistaken, ground limited to their respective observations.”

[104] That approach has obvious application here to my resolving the conflicting medical evidence. In the end, and having regard to the whole of the evidence, I prefer the expert opinions expressed by Dr Wallace and Dr Maguire to those of Dr Halliday and Dr Anderson. With respect to Dr Halliday my reasons for not preferring his opinion evidence are as follows: First, as I have noted already, it is clear to me that Dr Halliday was unaware of, or at least did not have regard to, the fact that the plaintiff attended her GP only 5 days after the accident on 12 July 2012 complaining of lower back pain. This was about three weeks earlier than Dr Halliday seems to have appreciated and, having regard to the basis upon which he formed his opinion concerning the transitory nature of the plaintiff’s injuries, the presentation of the plaintiff to her GP on 12 July 2012 would tend to undermine Dr Halliday’s opinion. In these circumstances the facts upon which Dr Halliday has based his opinion are called into question. Secondly, the evidence of Dr Halliday that he had not seen any evidence of the plaintiff experiencing lower back pain from within the day of the accident is inconsistent  not only with the evidence of the plaintiff herself but also that of Ms Barra and Mr Spann. The approach to resolving conflicts in expert evidence as explained by Sofronoff P in McGory thereby becomes relevant and persuades me that the opinion evidence of Dr Maguire and Dr Wallace is to be preferred. 

[105] As to Dr Anderson, he of course is not an orthopaedic surgeon. Leaving that aside, Dr Anderson regarded as a relevant factor that the plaintiff was overweight. However the plaintiff was overweight prior to the accident and was asymptomatic. Dr Anderson also regarded as relevant the plaintiff going through pregnancy shortly after the accident. Yet the plaintiff of course was reporting to her GP back pain both before she fell pregnant and in the early stages of her pregnancy. Those complaints, prior to and in the early stages of pregnancy, would appear to undermine the basis upon which Dr Anderson formed his opinions. I therefore prefer the expert opinions of Dr Wallace and Dr Maguire as to the cause of the plaintiff’s back pain being the accident.

[106] I therefore accept the plaintiff as an honest and reliable witness. In my view the evidence supports a finding that the plaintiff’s vehicle was struck on the driver’s side with sufficient force to spin the vehicle around. Those circumstances provide a logical cause for the onset of the symptoms of pain described by the plaintiff. Her failure to make any complaint on the day of the accident to suffering lower back pain is explicable by the other injuries the complaint had received in the accident The plaintiff of course complained of back pain to her GP only 5 days after the accident and therefore at what might be considered a time relatively soon after.  The medical evidence which I do accept supports the plaintiff’s evidence as does the evidence of Ms Barra and Ms Spann.

[107] I find, on the balance of probabilities, the following:

  1. (a)
    The plaintiff’s vehicle was a small light vehicle which was struck by a larger vehicle driven by the first defendant on 7 July 2012;
  2. (b)
    The force of impact was sufficient to spin the plaintiff’s vehicle around and thereby involved significant rotational force;
  3. (c)
    Prior to the collision the plaintiff had a pre-existing spondylolisthesis condition in her lumbro-sacral spine. That condition was asymptomatic prior to the collision;
  4. (d)
    As a result of the collision the plaintiff suffered a lower back injury with aggravation of degenerative changes in her lumbro-sacral spine with spondylosis causing her ongoing back pain which has failed to resolve since the accident and is likely to persist for the remainder of her life;
  5. (e)
    The plaintiff would not have experienced lower back injury and symptoms but for the collision.

General damages

[108] An assessment of the plaintiff’s damages is to be conducted in accordance with common law principles as modified by Chapter 3 of the Civil Liability Act 2003 (“the Act”) and the Regulation. General damages are defined in section 51 of the Act to include pain, suffering and loss of amenities of life.

[109] Section 61 of the Act prescribes that an injured person’s total general damages must be assigned and injury scale value (“ISV”) under any rules provided under the Regulation. I am required to assess the ISV for the injury suffered by the plaintiff from the range of injury scale values contained within schedule 4 of the Regulation.[90]

[110] In a case of multiple injuries, the methodology for the assessment of general damages requires a determination of the dominant injury as it is defined,[91] have regard to the range of ISVs applicable to that injury and determine whether the maximum ISV in that range adequately reflects the adverse impact of all the injuries.[92]  If a court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV, which will rarely be more than 25% higher than the maximum dominant ISV.[93]

[111] The court is required to have regard to the guidance provided by the provisions contained in schedule 4 concerning its use to the extent they are relevant in a particular case but is not limited to those factors.[94] Further, in assessing an ISV, a court may also have regard to other matters to the extent they are relevant in a particular case. Examples of such other matters include[95] the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life; the effects of a pre-existing condition of the injured person; difficulties in life likely to have emerged for the injured person whether or not the injury happened; in assessing an ISV for multiple injuries, the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries.

[112] The extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV.[96] Where the injured person has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV, in considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.[97]

[113] I accept that the injury to the plaintiff’s lumbar spine is the dominant injury. The defendants submit that the plaintiff’s injury should be assessed in the 6 to 8 range on the ISV scale. Conversely, the plaintiff contends that the plaintiff’s injury should be assigned an ISV of 13 taking into account the other injuries she also suffered in the accident.

[114] In supporting the submission, the plaintiff argues that her injury should be classified under item 93 of Schedule 4 of the Regulation as a moderate lumbar spine injury. Item 93 provides as follows:

93 Moderate thoracic or lumbar spine injury—soft tissue injury

Comment

The injury will cause moderate permanent impairment, for which there is objective evidence, of the thoracic or lumbar spine.

Comment about appropriate level of ISV

An ISV of not more than 10 will be appropriate if there is whole person impairment of 8% caused by a soft tissue injury for which there is no radiological evidence.

5-10

[115] The findings of Dr Maguire on his examination of the plaintiff including the plaintiff’s asymmetrical straight leg raising, marked tenderness in the right lumbosacral junction region and muscle spasm on the right side which was evidence when palpated is,[98] in my view, objective evidence supporting an assessment of the plaintiff’s injury under item 93. By comparison, a finding that the plaintiff’s injury should be classified under item 94, defined as a soft tissue injury of the thoracic or lumbar spine with no other objective signs of impairment relating to the injury, would in my view be contradicted by the assessment of Dr Maguire. Plainly on his assessment, which I accept, the plaintiff’s injury has caused a moderate permanent impairment and it is appropriate to assess the injury under item 93.

[116] Dr Wallace has assessed the plaintiff as having a 7% whole person impairment of the lumbar spine under the AMA diagnosis related estimates (“DRE”) category II which estimates 5-8% impairment. Dr Maguire assessed the plaintiff as having a 6% whole person impairment of the lumbar spine under DRE II but he apportioned 3% to the plaintiff’s pre-existing condition and 3% as a result of the accident. The relevance of a whole person impairment assessment such as these to the quantification of general damages was explained by Douglas J in Driver v Stewart & Anor [2001] QCA 444 at [13]:

“[13] Dr Gillett assessed his injury as causing a 3% permanent impairment of bodily function and noted that the plaintiff described the pain in his neck as an “uncomfortable sensation”. Dr Gillett also stated that if one were strictly applying the American Medical Association Guide for Impairment the plaintiff would be assessed at a 6% impairment of the whole body. It is difficult to really gauge what is meant by such percentage assessments. The real test is the extent to which a trial judge is able to assess the degree of incapacity and discomfort which is caused by an injury or injuries. In this case the respondent had no prior history of neck or upper thoracic pain prior to the subject motor vehicle collision.”

[117] In assessing general damages, I accept that the plaintiff was asymptomatic before the accident and that although she fell pregnant after the accident and was overweight, I also accept that there is no evidence the plaintiff would have become asymptomatic but for the injury she suffered as a result of the collision.

[118] The plaintiff’s multiple injuries suffered by her in the accident justify an uplift. The range of other injuries sustained by the plaintiff in the accident falling for consideration under Schedule 4 include minor cervical spine injury (item 89 - ISV range 0 to 4); minor shoulder injury (item 98 - ISV range of 0 to 5);  scarring disfigurement to the right leg which causes embarrassment (item 155.4 - ISV range 0 to 3). The plaintiff was 22 at the time of the accident and is now 28. At age 28 the plaintiff is still a relatively young woman and has a life expectancy of around 88, being another 60 years.[99] Therefore the plaintiff will likely endure pain, suffering and loss of amenities of life for a substantial number of years into the future. The plaintiff did have pre-existing spondylolisthesis but there is no evidence as to when the plaintiff’s condition would have manifested any disabling symptoms but for the accident. The plaintiff has suffered a number of other effects from her injuries as set out in her quantum statement including right shoulder and neck pain which lasted for about eight months after the accident[100] as well as permanent scarring on her right leg. I also consider the plaintiff’s weight issues to be relevant. There is evidence contained in the medical records which would indicate that the plaintiff is significantly overweight.

[119] In all of the circumstances I consider that the plaintiff’s lumbar spine injury falls towards the higher end of the range allowed for under item 63. The range is 5 to 10. On its own I would assess the lumbar spine injury at 8. The other multiple injuries suffered by the plaintiff justify, in my view, a further uplift of 25%. Therefore I assess the plaintiff’s ISV at 10. By virtue of section 4 of Schedule 6A of the Regulation I assess general damages at $14,100.

Past economic loss

[120] The plaintiff claims past economic loss on the assumption that but for the accident and resultant injuries she would have continued working full time at McDonald’s up to and beyond the time of trial. The amounts claimed by the plaintiff for past economic loss in Schedule A of her quantum statement, adjusted to the date of judgment and excluding interest, are as follows:

  1. (a)
    07.07.12-18.07.12

$646.00 nett per week x 2 weeks = $1,292.00

  1. (b)
     19.7.12-30.04.13

$700.00 nett per week x 41 weeks = $28,700.00

  1. (c)
    01.12.13-31.08.15

$750.00 nett per week x 91 weeks = $68,250.00

  1. (d)
    01.09.15-30.06.17

$800.00 nett per week x 95 weeks = $76,000.00

  1. (e)
    01.07.17- 22.6.18

$850.00 nett per week x 51 weeks = $43,350.00

  Total expected earnings = $217,592.00

[121] In the plaintiff’s written submissions it is acknowledged that a further adjustment should be made in calculating the plaintiff’s past economic loss having regard to the evidence she gave concerning her son’s medical condition. The plaintiff submitted that based upon the plaintiff’s evidence at trial, that as it would have been impossible for her to work full-time for a period of between six and nine months when she had to attend to her son’s needs, that a further adjustment be made to the calculation of past economic loss reflecting a period of 7.5 months (being the midpoint based upon her evidence) at $750 per week (being the nett wage corresponding to that period) which would result in a reduction of $22,500 in the amount claimed.

[122] The defendants on the other hand submit that having regard to the evidence including the plaintiff’s employee pay history for the period 29 October 2012 to 28 April 2013,[101] the plaintiff was capable of working nearly 40 hours per week and that this is consistent with the evidence of Gordon Howell and Brett Flanagan who, as I observed earlier, were acquainted with the plaintiff at work and were unaware that the plaintiff had been injured in a motor vehicle accident nor did the plaintiff complain to them regarding difficulties in carrying out her duties. Therefore the defendants submit that the plaintiff’s past economic loss should be assessed globally at $5,000.

[123] The methodology used by the plaintiff to calculate past economic loss involves deducting the plaintiff’s actual earnings from the amount which she would have expected to have earned had she not been injured with some further allowance made for the period in which the plaintiff’s son was receiving medical treatment. In my view the plaintiff’s past economic loss can with some precision be calculated. In the period from when the plaintiff returned to work after the accident to when she commenced maternity leave in April 2013, for most weeks during that period the plaintiff’s pay records indicate she worked a 40 hour week.[102] In my view the evidence establishes that the plaintiff suffered no economic loss during that period. This is borne out by the plaintiff’s own calculation of her expected income for the period 19 July 2012 to 30 April 2013 set out in her quantum statement which totals $28,700. The plaintiff’s actual nett income for that same period was $29,511 meaning that for this period she suffered no loss of income despite her back injury.

[124] The plaintiff gave an explanation for this which I have referred to earlier and which I accept. Her evidence was that although she did suffer significant lower back pain when she returned to full time employment at McDonald’s after the accident, by reason of her lack of family support coupled with her having a newborn baby on the way, her financial circumstances necessitated her continuing to work in pain in order to support herself.[103] Thus while the plaintiff did continue to work what were effectively full-time hours, she did so whilst suffering back pain which she described as being eight out of ten, and in assessing her claim for past economic loss I accept that the plaintiff’s particular personal circumstances explain her returning to work full-time despite her having suffered a lower back injury which in other circumstances would have resulted in the plaintiff not working full-time. Nevertheless, it is clear in my view that because of the plaintiff’s stoicism in returning to full-time employment she suffered no loss of income in the period up to her commencing maternity leave.

[125] The plaintiff then had six months off work on maternity leave. Upon her maternity leave ending on 1 December 2013, I accept the plaintiff’s evidence that because of ongoing lower back pain she was physically incapable of maintaining full-time employment. However, the plaintiff’s evidence as I have detailed earlier is that until about 31 October 2014, even had she been capable of working full-time, her son’s medical condition meant that she was unable to do so. Therefore, whilst I accept that because of her back injury the plaintiff was incapable of working full-time after her maternity leave had ended, I am not satisfied that her working only part-time in the period up until her son had recuperated from his operation was solely or predominantly because of her back injury. To the contrary, the plaintiff’s evidence was clear that she was unable to work full-time even had she been capable of doing so because of her son’s medical condition. Accordingly, any economic loss incurred by the plaintiff in the period from when she returned to maternity leave on 1 December 2013 until 31 October 2014 when her son had recovered from his operation was not caused by the plaintiff’s back injury and I am satisfied that her claim for past economic loss for this period should not be allowed.

[126] Any claim for past economic loss should therefore be calculated from 1 November 2014. Having regard to the evidence which I do accept, I am satisfied that the plaintiff’s past economic loss from that date adjusted to the date of judgment can be calculated as follows:

  1. (a)
    1 November 2014 to 31 August 2015

$750 nett per week x 43 weeks = $32,250.00

  1. (b)
    1 September 2015 to 30 June 2017

$800 nett per week x 95 weeks = $76,000.00

  1. (c)
    1 July 2017 to 22 June 2018

$850.00 nett per week x 51 weeks = $43,350.00

Total expected earnings = $151,600.00

[127] The plaintiff’s actual nett earnings for these periods can be assessed as follows:

 1 November 2014 to 30 June 2015 = $8,660.00[104]  (Subway)

 1 July 2015 to 5 August 2015 = $1,434.00 (Subway)

 10 August 2015 to 8 November 2017 = $68,045.00 (McDonald’s)

 9 November 2017 to 22 June 2018 = $17,280.00[105] (E) (McDonald’s)

[128] The plaintiff’s nett earnings from 1 November 2014 to 22 June 2018 are, on these calculations, approximately $95,419.00. The difference between the plaintiff’s expected earnings had she had the capacity to work full-time, and her actual earnings over this period, is $56,181.00 calculated to the date of judgment. This calculation however does not take into account the two month period when the plaintiff ceased employment at McDonald’s on 5 March 2017. Whilst the plaintiff conceded that she had resigned her employment at McDonald’s for personal reasons at this time, she also explained that this was also because of her leg and her back. As the plaintiff submits, it is difficult to disentangle an appropriate discount for this period of time. Accepting that the plaintiff continued to suffer lower back pain throughout the period 1 November 2014 to the present time, there is no basis in my view to further discount her past economic loss.

[129] I therefore assess the plaintiff’s past economic loss at $56,181.00. The plaintiff’s past loss of superannuation to date of judgment is calculated at $5,196.74, being at an average rate of 9.25% on the amount of $56,181.00.[106]  I calculate interest on past economic loss at $893.43.[107]

Future loss of earning capacity

[130] It is submitted on behalf of the plaintiff that her future loss of earning capacity can be calculated as a defined weekly loss and as such section 55 of the Act does not apply. The plaintiff contends that but for the accident she would have continued in full-time employment at McDonald’s. In late 2017 when the plaintiff was working full-time as a shift supervisor at McDonald’s she was earning $840 nett per week. As of 21 November 2017 the plaintiff was to revert to a permanent part time position at McDonald’s earning approximately $520 nett per week.

[131] However, it is further submitted on behalf of the plaintiff that her future loss of earning capacity should be calculated on the basis that she would have become a store manager and that her future loss of earning capacity should be calculated on that basis. The evidence of Gordon Howell, who had been employed as a store manager at McDonald’s, was that in May 2017 he was earning $940 nett per week. Therefore the plaintiff submits that her future loss earning capacity should be calculated as a defined weekly loss of $420 nett per week ($940 - $520).

[132] Assessed at $420 per week until age 70 then the plaintiff’s loss of earning capacity, calculated on the 5% discount multiplier (42 years) of 932.0 is calculated as $391,440.00. It is then submitted on behalf of the plaintiff that having regard to her vulnerability on the open market by reason of her occupational limitations described by Mr Scalia[108] in his report, that she may not be able to continue to work at her current 21 hours per week coupled with the risks she will be exposed to from a potentially unsympathetic employer, that these matters would justify allowing the plaintiff a further $100 per week for future economic loss to age 70. On that calculation the plaintiff would be awarded an additional $93,200. Finally, the plaintiff submits that the discount that should be applied for contingencies should be at 12.5%.

[133] The defendants submit that I should assess the plaintiff’s future loss of earning capacity in the range of $20,000 to $30,000. That submission was predicated on my being satisfied that the plaintiff’s injuries from the accident were only transient in nature. It is also submitted that the discount for contingencies should be at 15%.

[134] I am satisfied that had the plaintiff not been injured in the accident she would have continued to work on a full-time basis at McDonald’s and, as a result of her injuries  I am satisfied that the plaintiff does not have the capacity to engage in full-time employment. I have noted earlier the defendants’ contention that the plaintiff has had the capacity in the past to work full-time and that this would contradict the plaintiff’s claim that because of her significant and ongoing back pain she is incapable of maintaining full-time employment. I accept the explanations of the plaintiff as to why in the past she did for periods work full time and why it is that she says she cannot sustain that in the future. In order to get through a shift at work the plaintiff relies upon pain relief. Her capacity is limited to part-time employment. The plaintiff explained why it was she believed she was no longer capable of engaging in full-time employment when she said in her evidence:[109] 

“Ms Cornwell, you said a moment ago that work in the last two and a half months has been a real wakeup call for you with respect to your ability to work fulltime? Yes it has.

Could you explain that to the court what you mean by real wakeup call? Why I’m – I’m not putting myself through this again. Don’t care how broke I am. I’m not struggling with my back, my leg. I’m not going home grumpy. I’m not going to be yelling and angry, upset with my son because I am cranky because I’m hurting and I’m tired and it’s just not worth it. So yeah, the last two and a half months has been a wakeup call with work. Work does not come before my – myself and son anymore”.

[136] The plaintiff was obviously, in my view, attempting to articulate the effects on her of the ongoing back pain she had been experiencing when working full-time shifts in late 2017 and the effects upon her personality when she was working full-time hours. Accepting the evidence of the plaintiff, I am satisfied for the reasons explained earlier that the plaintiff is no longer capable of full-time employment and that as a direct consequence of her back injury caused by the accident the plaintiff is now only capable of part-time employment due to her injuries and consequent limitations.

[137] The plaintiff gave evidence that but for the accident she had ambitions of becoming a store manager at McDonald’s. To be promoted to store manager the plaintiff was required to undertake a number of courses.[110] Whilst I accept that the plaintiff does have the aptitude to undertake the courses necessary to become a store manager at McDonald’s despite her disadvantaged background, I am not convinced that the plaintiff would have done so in the near future had she not been involved in the accident. The evidence in that regard is limited. The plaintiff had been working at McDonald’s for approximately 3 years in total by the time of trial. For at least part of that period the plaintiff was either employed full-time or was working the equivalent of full-time hours. Whilst I accept that for the majority of time the plaintiff was suffering from back pain caused by the accident, the plaintiff had taken limited steps towards completing the courses necessary for promotion to store manager. There may be a number of reasons for that. However, whilst I accept that the plaintiff had aspirations of doing so, I am not satisfied on the evidence that the plaintiff was likely to have completed the courses necessary for her to become a store manager in the near term, nor am I able to determine when she might have been promoted to the position of store manager. Accordingly, assessing the plaintiff’s future economic loss on the basis that she would become a store manager is in my view speculative and I am not satisfied that the plaintiff’s future loss of economic capacity can be calculated on that basis.

[138] For purposes of calculating the plaintiff’s future loss of earning capacity, I am however satisfied that it can be calculated as a defined weekly loss into the immediate future of $320 nett per week being the difference between what the plaintiff was earning full-time as a shift supervisor ($820 nett per week) and what she will earn part-time in that same position ($520 nett per week).

[139] On this basis, an assessment of future economic loss at $320 nett per week to age 70 (41 years ahead) according to the 5% discount multiplier of 925.0 is calculated at $296,000.00.

[140] The plaintiff’s further submission that I also allow the plaintiff a further $100 nett per week for future loss of income is premised upon what is submitted to be her vulnerability on the open labour market, that she may not be able to endure part-time work at 21 hours per week and that she might be at risk in the future from an unsympathetic employer. Whilst I accept that it would be open in some circumstances to calculate future loss of income on the basis submitted by the plaintiff, I am not satisfied that this is justified here. Whilst I accept the matters raised by Mr Scalia in his report concerning the vulnerabilities of the plaintiff in the labour market, the plaintiff has demonstrated in the past an ability to readily find employment in either hospitality or retail. I am not satisfied that the plaintiff’s ability to find employment in the future were the need to arise is disadvantaged such that the further allowance contended for by the plaintiff should be made for future loss of earning capacity. The plaintiff is obviously a well-regarded employee. Indeed the plaintiff’s past work history demonstrates her ability to maintain good employment. I am not persuaded in the circumstances that the plaintiff’s vulnerabilities relied upon as contending for a further allowance of $100 per week for future loss of earning capacity is justified. 

[141] As to the contingencies discount, I accept that what has been regarded as the “standard” discount of 15% is not to be applied in all cases. Indeed, as the plaintiff correctly submits, there are any number of examples where the contingency discount has been assessed at significantly less than 15%. However, in the circumstances here I am persuaded that a discount of 15% should be applied for contingencies. In addition to the usual considerations which are taken into account which might adversely affect earning capacity including the plaintiff’s underlying spondylolisthesis which may have become symptomatic, the other relevant matter relating to the plaintiff is her weight and the consequences for her health that might have for her in the future. This has obviously been an issue for the plaintiff since at least 2010 and it features in the plaintiff’s medical records as being of concern to her treating GP’s. In my view a discount of 15% for contingencies should be applied here.

[142] Applying a discount of 15% to what I have calculated the plaintiff’s future loss of earning capacity the be of $296,000, I assess the plaintiff’s future loss of earning capacity at $251,600. I calculate future loss of superannuation benefits on $251,600 (at 11.33%[111]) in- the amount of $28,506. 

Past domestic care and assistance

[143] The entitlement of a plaintiff to claim damages for gratuitous care and assistance is governed by section 59 of the Act. It provides:

59 Damages for gratuitous services provided to an injured person

  1. (1)
    Damages for gratuitous services provided to an injured person are not to be awarded unless -
  1. (a)
    the services are necessary; and
  1. (b)
    the need for the services arises solely out of the injury in relation to which damages are awarded; and
  1. (c)
    the services are provided, or are to be provided -
  1. (i)
    for at least 6 hours per week; and
  1. (ii)
    for at least 6 months.
  1. (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.
  1. (3)
    In assessing damages for gratuitous services, a court must take into account-
  1. (a)
    any offsetting benefit the service provider obtains through providing the services; and
  1. (b)
    periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.”

[144] In respect to this section, the Court of Appeal observed in Shaw v Menzies & Anor [2011] QCA 197 at [73]:

“[73]  The Civil Liability Act was introduced in 2003. The requirements for any award of damages for gratuitous services provided to an injured person thereafter are clear:

the services must be necessary;

the need must arise solely out of the injuries;

the services were provided for at least six hours a week for at least six months after the injury.

Accordingly, a plaintiff who includes a claim for damages for gratuitous care must adduce sufficient evidence to meet each of those thresholds. It has been a long-standing practice that solicitors advise clients making a claim for damages for personal injury, particularly where the claim includes a component for gratuitous care, to keep a weekly diary recording tasks and time to perform them by family members. As this case has demonstrated, failure to have some system, because of the requirements of s 59, may mean that a deserving plaintiff may not cross those thresholds.” (citations omitted)

[145] In her quantum statement the plaintiff asserts that prior to the accident she was responsible for the majority of the domestic duties in her home and that she shared in undertaking outdoor tasks. She says that she has required assistance with home duties and outdoor tasks due to her injuries. That assistance has been provided by her partner and her family. The plaintiff also says that she will also continue to require assistance with shopping, meal preparation, cleaning, laundry, vehicle cleaning and yard maintenance. The amount claimed by the plaintiff at trial for past gratuitous care was $29,250.00, calculated at 7 hours per week for 6 months from the date of the accident and then 4 hours per week thereafter.

[146] The plaintiff supports her claim for past gratuitous care by relying upon the report of Occupational Therapist Mark Scalia.[112] Mr Scalia administered to the plaintiff a Blankenship Activity Questionnaire for the purpose of quantifying the care and assistance needs of the plaintiff post-accident.[113] Based upon his assessment of the plaintiff’s needs, Mr Scalia concluded that for the period 7 July 2012 to 24 September 2015 (date of assessment) the plaintiff required the following care and assistance:

  • Shopping - 1 hour per week;
  • Meal preparation – 2 hours per week (for 6 months);
  • Domestic Cleaning – 3 hours per week (for 6 months);
  • Laundry – 1 hour per week;
  • Vehicle cleaning – 1 hour per week;
  • Yard maintenance – 1 hour per week.

[147] It is obvious from the terms of section 59 that damages for gratuitous services are not to be awarded unless the services have been, or are to be, provided for both 6 hours per week and for at least 6 months. It is submitted on behalf of the plaintiff that the report of Mr Scalia, which was tendered without objection, as well as the unchallenged Blankenship Activity Questionnaire administered by Mr Scalia to the plaintiff, satisfy the threshold requirements of section 59 for the plaintiff to be awarded damages for past gratuitous care. 

[148] The defendants argue to the contrary. The defendants’ principal submission is that the plaintiff neither had the need for the gratuitous care claimed nor is she able to factually prove that she was receiving the care to satisfy section 59 of the Act.

[149] The plaintiff was cross-examined at trial as to the extent of the care she received, and continues to receive, following the accident as well as her capacity to carry out domestic duties. The report of Mr Scalia has to be considered in light of the plaintiff’s evidence at trial. The plaintiff’s evidence can be summarised as follows:

  • The plaintiff does some of the cleaning at home but not all of it;[114]
  • The plaintiff dresses her son for kindy each day (sometimes assisted by Luke Spann) and prepares his lunch;[115]
  • The plaintiff is able to wash up the dishes but relies upon Mr Spann to load the dishwasher;[116]
  • The plaintiff is able to drive, drop her son at kindy, pay her own bills and attend the post office;[117]
  • As to domestic tasks the plaintiff is able to tidy up around the house including picking up her son’s toys;[118]
  • That before the accident the plaintiff used to help Mr Spann do yard work/gardening;[119]
  • The plaintiff will sometimes do shopping on her own. Sometimes she is assisted in shopping by Mr Spann and by others. The plaintiff will push the trolley and others will load the trolley and assist in putting shopping bags into the car boot;[120]
  • The plaintiff agreed that she had never indicated to Mr Scalia how many hours per day Mr Spann provides her assistance with shopping[121] and that she is unable to say with precision as to how regular that is;[122]
  • Before the accident the plaintiff did the shopping on her own;[123]
  • Prior to the accident Mr Spann helped out at home but after the accident his assistance has been greater;[124]
  • The plaintiff undertakes the domestic tasks she is able to do[125] and she has modified her activities to accommodate the limitations she has in carrying out domestic tasks;[126]
  • The plaintiff is able to clean benches, sweep and dress herself;[127]
  • After the accident she had difficulties putting on socks but she has since learned to do that herself;[128]
  • Any cleaning tasks at home are usually performed by Mr Spann but the plaintiff is able to perform some cleaning tasks;[129]
  • The plaintiff is able to do the washing  and although usually Mr Spann will hang out the washing the plaintiff will sometimes do that;[130]
  • The plaintiff agreed that her estimate in her quantum statement that from the time of the accident she had been receiving 7 hours a week in assistance was a guess.[131]

[150] The evidence of Luke Spann is also relevant to an assessment of this component of the plaintiff’s claim. His evidence at trial was that:

  • He massages the plaintiff’s back at least twice a week to relieve her lower back pain. Prior to the accident he did not do this;[132]
  • He assists the plaintiff with the cooking, cleaning, yard maintenance and shopping – anything that requires heavy lifting[133] and that prior to gaining employment in November 2017 when the plaintiff was at work he would assist with their son and spend up to 4 hours a day doing cleaning, food preparation and yard maintenance around the home;[134]
  • Since commencing employment he continues to assist the plaintiff after work with food preparation, cleaning and taking out the rubbish;[135]
  • That since buying a dishwasher the plaintiff will stack the dishwasher and he will unstack it;[136]
  • He spends about four hours on weekends in doing chores around the home;[137]
  • That from the time of the accident until July 2013 he undertook a lot of the house chores[138] and that on a weekly basis until when Ryan was born he estimated that he was performing at least 40 hours per week on chores because the plaintiff “couldn’t do a lot of the stuff”; He would do mainly the heavy lifting and “all the hard stuff”;[139]
  • He agreed that for some of the period after the accident he and the plaintiff had separated. He agreed that when he went to visit the plaintiff that some of the domestic tasks he did were for the benefit of his son such as bathing him and preparing him meals. He agreed that the plaintiff was able to cook meals and that the meals he would cook would only be for him and his son;[140]
  • He agreed that his estimate of 4 hours domestic assistance on a weekend was only a guess;[141] 
  • He said that he assists the plaintiff in hanging the washing out.[142]

[151] The requirements prescribed in section 59(1)(c) that for there to be award of damages for gratuitous services that they be provided, for at least 6 hours per week and for at least 6 months, were considered by the Court of Appeal in Kriz v King & Anor [2006] QCA 351, where at [18] McMurdo P held:

“[18]  Because  s 59  restricts a claimant's previously unfettered common law right to seek damages for gratuitous services, the section should only be regarded as limiting that common law right if it does so clearly and unambiguously: Potter v Minahan; Bropho v Western Australia; Coco v The Queen and Grice. For that reason  s 59(1)(c)  should be interpreted in the way which least diminishes a claimant's common law rights to damages for gratuitous services. Giving the words their ordinary meaning and applying that important principle of construction, it is my view that  s 59(1)(c)  of the Act has the effect that damages for gratuitous services are not to be awarded unless the services have been provided or are to be provided for both six hours per week and for at least six months; once that threshold is met then damages for gratuitous services can be awarded even if the services thereafter are provided or are to be provided for less than six hours per week. This approach is consistent with that taken by McGill DCJ in Carroll v Coomber & Anor and with the submissions of senior counsel for the appellant at trial. The judge was required under the common law and consistent with s 59 of the Act to make the assessment of damages for future gratuitous services on the evidence accepted by him.” (citations omitted)

[152] Having regard to those observations, here the question for me in determining this component of the plaintiff’s claim for damages is whether I can be satisfied first, that the plaintiff has needed services arising solely out of the injury in relation to which the damages are to be awarded and, if so, that the services are provided or are to be provided for at least 6 hours per week for at least 6 months.

[153] The plaintiff places particular reliance on the assessment of Mr Scalia set out in his report as to the hours of care the plaintiff was provided post-accident. I have set out the relevant part of Mr Scalia’s report at [146] above. The plaintiff contends that as the report of Mr Scalia was tendered without objection and as the Blankenship Activity Questionnaire which Mr Scalia administered was unchallenged I am entitled to rely upon Mr Scalia’s report in assessing the plaintiff’s need for care following the accident. If Mr Scalia’s assessment of the plaintiff’s care needs post-accident are accepted then the plaintiff was receiving something in the order of 9 hours per week in care.

[154] The opinion expressed by Mr Scalia in his report at paragraph 8.3 as to the care provided to the plaintiff post-accident are in a large measure based upon the self-reporting of the plaintiff in the questionnaire itself. For that reason caution must be exercised in accepting the hours stated in the report as reliable indicators as to what care and assistance the plaintiff actually received. The observations of Muir JA in Hunt v Australian Associated Motor Insurers Ltd [2012] QCA 183 at [47]-[48] as to the weight I should give this aspect of Mr Scalia’s report are apposite:

“[47] Counsel for the respondent submitted that there was no evidence which established that the appellant was given the care which she alleged to have received. The evidence, upon which the appellant relies, for present purposes, is that of Ms Purse and herself. Ms Purse’s report was admitted without objection and, prima facie, the hearsay evidence in it was therefore evidence for all purposes and should have been given the weight the trial judge thought appropriate.

[48] It is apparent that in so far as Ms Purse made statements in her report about past care, she was merely repeating what she was told by the appellant. The appellant swore to the accuracy of the facts set out in the report in her quantum statement. It may be accepted, I think, that by so doing the appellant was affirming the truth of the information in the report which she had provided to Ms Purse. Although the primary judge, as he was entitled to do, treated the relevant parts of Ms Purse’s report and of the quantum statement as having probative force, he regarded the evidence as unreliable in respect of the period after 13 June 2009 and gave it little weight.”

[155] I am satisfied that having regard to injury suffered by the plaintiff in the accident that immediately after the accident up until the present time she has needed ongoing domestic assistance for a variety of tasks including hanging out clothes, heavier cleaning, shopping and yard related maintenance. Whilst I accept that the calculation of the hours of care provided made by Mr Scalia in his report support a finding that the plaintiff received more than 6 hours per week for at least the first 6 months following the accident, as I have noted already that assessment is essentially based upon the self-reporting of the plaintiff. For that reason Mr Scalia’s report must be considered in light of the sworn evidence relevant to the care and assistance provided to the plaintiff.

[156] Whilst I accept the evidence of the plaintiff and Mr Spann that immediately following the accident the plaintiff needed, and continues to need, care and assistance in undertaking a variety of domestic tasks and whilst I accept that the need for care and assistance arose solely as a consequence of the injury suffered by the plaintiff in the accident, I am not satisfied that the threshold requirements contained in section 59 of the Act are made out on the evidence. In reaching this view I place little weight on the assessment of the care provided to the plaintiff contained in Mr Scalia’s report. In my view the sworn evidence of the plaintiff and Mr Spann does not support Mr Scalia’s assessment.

[157] I have earlier summarised the evidence of both the plaintiff and Mr Spann as to the care and assistance provided to the plaintiff post-accident. In my view they were both on the whole candid and honest in the evidence they gave in regards to the domestic tasks the plaintiff could and could not do. From their evidence it seems clear that whilst the plaintiff is now more limited in the domestic tasks she is able to undertake and, in particular, any tasks involving heavy lifting are now clearly beyond her, nevertheless it is obvious from the evidence of both the complaint and Mr Spann that the plaintiff is still able to perform a variety of domestic tasks despite to back injury. For example the plaintiff has and continues to be able to cook for her and her son, do the washing and cleaning around the house and is able to drive and sometimes do the shopping on her own. Again whilst I accept that there are limitations on the extent that she is able to carry out some of these tasks, the evidence is not sufficient in my view to conclude that in any period since the accident the plaintiff has been provided at least six hours per week of gratuitous care for at least six months. Unless I am satisfied of that, even though I accept that the plaintiff has and will continue to need some gratuitous care, section 59 precludes me from awarding any damages for this component of the plaintiff’s claim.

[158] I also accept the submissions made on behalf of the defendants that the factual basis upon which Mr Scalia made his assessment as to past care and assistance has not been established on the evidence. The plaintiff conceded that she had not informed Mr Scalia as to the actual domestic tasks that were being provided to her by care givers. Moreover, the evidence is not sufficiently clear to make a finding as to the actual hours that were being provided to the complaint in the period following the accident to assist her with domestic chores. Mr Spann said in his evidence that he was providing 40 hours of assistance a week but I place no weight on that. Instead, having regard to the limitations described by the plaintiff herself as to what she could and could not do following the accident, in my view there is no reliable evidentiary basis upon which I can conclude that the plaintiff was provided 6 hours a week gratuitous care for at least a 6 month period at any stage since the accident. For this reason section 59 of the Act precludes me from making any award of damages for past care and assistance.

Future care and assistance

[159] Despite my conclusions in respect to past care and assistance, some allowance should be made to the plaintiff in my view for future paid care and assistance. For the reasons given I am satisfied that as a result of the accident the plaintiff has in the past required gratuitous assistance around the home which has mainly been provided by Mr Spann. I am satisfied that the plaintiff is unable to perform any domestic tasks involving heavy lifting and I am also satisfied that bending down for extended periods or undertaking the majority of yard work will also be beyond the plaintiff’s capacity. To the extent that she will be unable to perform those kinds of tasks for herself, which is not subject to the restriction contained in section 59 of the Act,[143] the plaintiff will require paid assistance.

[160] The plaintiff has been left with a permanently reduced ability to undertake heavier tasks and therefore will always have a need for care and assistance with the heavier tasks around the home such as heavier cleaning, garden work, lifting the vacuum cleaner up and down the stairs and similar tasks which prior to the accident she would have undoubtedly been able to perform on her own. It might be assumed that this will be met by Mr Spann but having regard to his work commitments and factoring in the relationship difficulties he and the plaintiff have experienced in the past, I am satisfied that some allowance should be made for future paid care.

[161] The plaintiff’s current needs would not appear to be particularly great. She is in my view quite independent and for reasons I gave earlier I have formed the view that she is stoic in character preferring to adopt a solider on attitude to life. I also accept that given the plaintiff’s need to continue in employment it is not unreasonable for the plaintiff to engage commercial help at some point to provide her some quality of life.

[162] In my view, having regard to my findings as to the extent of care and assistance the plaintiff has required since the accident it is reasonable to allow the plaintiff 2 hours per week for future care. Accepting that the plaintiff should be allowed 2 hours per week for future care, the provision of that care should be assessed at $25 per hour. Calculated for the rest of her life applying the 5% multiplier on $50 per week, I calculate the plaintiff’s future care at $50,600.[144] An adjustment for contingencies of 15% should be made. I therefore assess the plaintiff’s future paid care at $43,010.00.

Past Special Damages

[163] I allow the amount of $5,000 for past monetary loss by way of medical, pharmaceutical, travel and rehabilitation as agreed by the parties. I calculate interest on past special damages at $226.00.[145]

Future Special Damages

[164] The plaintiff’s claim for future medical, pharmaceutical, and other expenses are contingent on my accepting the opinions of her medical witnesses that her injury has not, and will not, resolve. For reasons given above I have accepted those opinions. The plaintiff will continue to endure pain and suffering and will require ongoing visits to her GP because of this as well as ongoing pharmaceutical expenses. There is a risk that the plaintiff will be disadvantaged in the job market as a result of her injury such that some allowance should be made to assist her in further vocational training. In all of the circumstances I am satisfied that the plaintiff’s future special damages should be calculated adopting most of the claims contended for by the plaintiff. I therefore will allow future special damages calculated as follows:

  1. (a)
    Future medical expenses

GP visits – 4 per year at $65 per visit @ $5 per week to age 70 (multiplier 925) = $4,625

  1. (b)
    Future pharmaceutical expenses

$26.50 per week to age 70 (multiplier 925) = $24,512

  1. (c)
    Future remedial massage/physio

$16.15 per week to age 70 (multiplier 925) = $14,938

  1. (d)
      Future aid and equipment

$6.00 per week to age 70 (multiplier 925) = $5,550

  1. (e)
    Future retraining expenses

Diploma of Management - $4,720 plus text books $500 = $5,220

  1. (f)
    Future ergonomic work equipment
  1. (i)
    Chair (initial purchase $426) and $1,528 for replacements (allow $1.64 per week to age 70 - multiplier 925) = $1,943
  1. (ii)
    Height adjustable desk (initial purchase $835) and $1,500 for replacements (allow $1.61 per week to age 70 – multiplier 925) = $2,324
  1. (g)
    Future travel expenses

Allow 240km per annum for medical, pharmaceutical and rehabilitation expenses @ $.90 per kilometre - $4.15 per week to age 70 (multiplier 925) = $3,838

[165] I therefore assess the plaintiff’s future special damages in accordance with these calculations at $62,950. Allowing a discount of 15% for contingencies I allow the plaintiff $53,507 for future special damages.

Summary

[166] In summary, my assessment of damages is:

General damages$14,100.00
Past loss of earning capacity$56,181.00
Past loss of superannuation$5,196.74
Interest on past economic loss$893.43
Future loss of earning capacity$251,600.00
Future loss of superannuation$28,506.00
Future paid care an assistance$43,010.00
Past special damages$5,000.00
Future special damages$53,507.00
Interest on past special damages$226.00
Total damages$458,220.17

Orders

[167] Judgment for the plaintiff against the defendants in the amount of $458,220.17.

[168]  Any submission in respect of costs, or alternatively a proposed consent order if the parties are agreed, be filed within 14 days.

Footnotes

[1] Paragraph 10 Statement of Claim

[2] Exhibit 1 – Quantum Statement; plaintiff’s written submissions page 33

[3] The 2003 regulation was repealed upon the commencement of the Civil Liability Regulation 2014. However, by operation of the transitional provisions contained in section 11 thereof, the repealed regulation continues to apply, despite its repeal, to injuries arising before the commencement.

[4] Defence paragraph 6(a)

[5] Defence paragraphs 6(b)(iv) and 6(c)(iv)

[6] Defendants’ submissions para 79

[7] Transcript 1-13

[8] Transcript 1-14

[9] Transcript 1-39 lines 9-22

[10] Exhibit 8

[11] Transcript 1-14 - 1-15

[12] Transcript 2-7

[13] Transcript 2-7 line 17

[14] Transcript 1-17 lines 4-5

[15] Transcript 1-17 lines 11-13

[16] The Ambulance records relating to attendance upon the plaintiff following the accident form part of the Ingham Hospital records

[17] Ingham Hospital records – Rural Emergency Flow sheet

[18] Transcript 1-41 lines 21-43

[19] Transcript 1-17 lines 23-27

[20] Transcript 1-18 lines 37-40

[21] Transcript 1-19 lines 7-11

[22] Transcript 1-18 lines 5-7

[23] Transcript 1-20 lines 35-42

[24] Transcript 1-26 lines 3-5

[25] Transcript 1-18 lines 3-21; 1-22 lines 41-43

[26] Transcript 1-18 lines 25-28

[27] Transcript 1-21 lines 20-42

[28] Transcript 1-34 lines 33-38

[29] Transcript 1-31 lines 13-20

[30] Transcript 1-29 lines 33-45

[31] Exhibit 4 page 10 (Report - 9 November 2014)

[32] Transcript 1-57 line to 1-58 line 5

[33] Transcript 1-58 lines 14-21

[34] Transcript 1-58 lines 24-36

[35] Transcript 1-54 line 46 to 1-59 line 2

[36] Exhibit 4 page 20 (Report - 29 August 2015)

[37] Exhibit 4 pages 49-51 (Report – 18 May 2017)

[38] Transcript 2-41 line 33 to 2-42 line 19

[39] Exhibit 14 page 7 (Report – 4 March 2015).

[40] Exhibit 14 page 7 (Report – 4 March 2015)

[41] Exhibit 14 page 8 (Report – 4 March 2015)

[42] Exhibit 15 page 3 (Report – 7 November 2015)

[43] Exhibit 15 page 3 (Report – 7 November 2017)

[44] Exhibit 15 page 5 (Report – 7 November 2017)

[45] Exhibit 15 page 4 (Report – 7 November 2017)

[46] Transcript 2-31 line 37 to 2-32 line 18

[47] Transcript 2-37 lines 14-15

[48] Transcript 2-33 lines 7-9

[49] Transcript 2-33 lines 20-22

[50] Transcript 2-34 lines 1-16

[51] Transcript 2-35 lines 20-28

[52] Transcript 2-38 line 44 to 2-39 line 5

[53] Exhibit 12 page 5 (Report – 26 April 2016)

[54] Exhibit 13 page 2 (Supplementary Report – 7 November 2017)

[55] Exhibit 13 page 4 (Supplementary Report – 7 November 2017)

[56] Transcript 1-19 lines 36-44

[57] Transcript 1-20 lines 27-36

[58] Transcript 1-55 lines 8-11, 30-41

[59] Transcript 1-76 lines 22-46; 1-77 lines 32-34

[60] The 17 months being the period from when the child was born until he underwent his operation when he was approximately 14 months old and the further two to three months of travel post operation described by the plaintiff in her evidence.

[61] It is submitted by the plaintiff that this should be 7 ½ months as a mid-point having regard to the plaintiff’s evidence

[62] Plaintiff’s submissions paras 88-89

[63] PAYG payment summary issued by Trina Gomez Family Trust being part of exhibit 17

[64] I note that the affidavit of Trina Gomez asserts that the plaintiff commenced employment at Subway on 19 December 2013. This date does not reconcile with the date contained in the PAYG payment summary

[65] Exhibit 17

[66] Based upon this concession the plaintiff submits that a 7.5 month period beginning mid-march 2014 ending 31 October 2014 be withdrawn from the plaintiff’s past economic loss calculations (submissions dated 5 December 2017 para 29).

[67] Daoud v Boutros [2013] NSWSC 687, per Sackar J at [27]

[68] Transcript 1-13

[69] Relying upon R v Wilson [2014] QCA 350 at [32]

[70] Transcript 1-55 lines 25-40

[71] Transcript 2-41 l.43 – 2-42 l.1

[72] Transcript 2-33 lines 38-46

[73] Transcript 2-34 lines 1-7

[74] Transcript 2-33 lines 31-34

[75] Transcript 2-33 lines 38-45

[76] Transcript 2-34 lines 1-7

[77] Transcript 2-34 lines 9-16

[78] Transcript 1-13 lines 5-6

[79] Transcript 1-17 lines 11-27

[80] Transcript 2-19 lines 4-38

[81] Transcript 2-6 lines 36-47; 2-8 lines 1-12

[82] Transcript 1-98 line 26

[83] Transcript 1-99 lines 4-15

[84] Transcript 1-99 lines 20-24; 1-101 4-20

[85] Transcript 2-24 lines 26-29

[86] Transcript 2-25 lines 5-9

[87] Transcript 1-86 lines 16-19

[88] Transcript 1-55 lines 33-37

[89] Transcript 1-30 lines 3-17

[90] Regulation Schedule 3, section 2

[91] Defined in Regulation Schedule 7

[92] Regulation Schedule 3, sections 3 and 4; Allwood v Wilson & Anor [2011] QSC 180, per McMeekin J at [20]

[93] Regulation Schedule 3, section 4

[94] Regulation Schedule 3, section 8

[95] Regulation Schedule 3, section 9

[96] Regulation Schedule 3, section 10

[97] Regulation Schedule 3, section 7

[98] Exhibit 4 pp 49-50

[99] Australian Bureau of Statistics life expectancy tables – as per Vincents QLD Litigation Tables 2017/18. See also Golden Eagle International trading Pty Ltd v Zhang [2007] HCA 15 at [70]

[100] Transcript 1-17 lines 17-18

[101] Exhibit 19

[102] Exhibit 19

[103] Transcript 1-19 lines 5-11; quantum statement paragraph 23

[104] As calculated from Exhibit 17

[105] Calculated by reference to paragraph 31 of the plaintiff’s quantum statement – until 27 November 2017 $840 nett per week; from 28 November 2017 $520 nett per week. 

[106] The Superannuation Guarantee Levy was 9% up to 30 June 2013, 9.25% up to 30 June 2014 and 9.5% since that date. The rate of 9.25% is applied as an average rate for the period calculated.

[107] Calculated at 2.87% for 6 years applying the formula as set out in paragraph 136 of the plaintiff’s submissions.

[108] Occupational Therapist – exhibit 4

[109] Transcript 1-87 36-42

[110] Transcript 1-20 lines 1-12

[111] Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 at [56]-[57]

[112] Exhibit 4

[113] Exhibit 4 pages 30-34

[114] Transcript 1-29 lines 29-30

[115] Transcript 1-35 lines 25-31; 1-36 lines 13-18

[116] Transcript 1-36 lines 26-32

[117] Transcript 1-36 lines 20-22 & 34-42; 1-77 lines 44-47

[118] Transcript 1-37 lines 9-32

[119] Transcript 1-38 lines 4-9

[120] Transcript 1-78 lines 6-15 & 31-43; 1-79 lines 2-9

[121] Transcript 1-80 lines 38-42; 1-81 lines 3-25

[122] Transcript 1-81 lines 31-33

[123] Transcript 1-81 lines 38-42

[124] Transcript 1-81 lines 43-44

[125] Transcript 1-82 lines 7-13

[126] Transcript 1-83 lines 12-19

[127] Transcript 1-83 lines 21-30

[128] Transcript 1-84 lines 1-12

[129] Transcript 1-84 lines 15-30

[130] Transcript 1-84 lines 34-39

[131] Transcript 1-84 line 41 – 1-85 line 7

[132] Transcript 2-8 lines 9-12

[133] Transcript 2-8 lines 14-27

[134] Transcript 2-8 lines 21-34

[135] Transcript 2-9 lines 11-22

[136] Transcript 2-9 lines 20-27

[137] Transcript 2-9 lines 41-46

[138] Transcript 2-10 lines 43-46

[139] Transcript 2-11 lines 6-23

[140] Transcript 2-13 lines 4-26

[141] Transcript 1-13 lines 32-33

[142] Transcript 2-116 lines 29-33

[143] See Carroll v Coomber and Anor [2006] QDC 146 at [75]

[144] $50 per week x 1,012 (60  years on the 5% discount multiplier)

[145] After deducting the Medicare refund of $2,372.20 and applying the formula set out in paragraph 137 of the plaintiff’s outline

Close

Editorial Notes

  • Published Case Name:

    Tammy Pearl Cornwell v Giuseppina Imarisio and RACQ Insurance Ltd

  • Shortened Case Name:

    Cornwell v Imarisio

  • MNC:

    [2018] QDC 138

  • Court:

    QDC

  • Judge(s):

    Lynham DCJ

  • Date:

    22 Jun 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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