Williams-Cook v Schloss[2018] QDC 175

DISTRICT COURT OF QUEENSLAND

1. [1]
   Ms Danielle Williams-Cook was injured as she drove her motor vehicle through the intersection of Fraser and Mackie Streets, Chinchilla on 6 August 2014, when a vehicle, being driven by the first defendant and covered by a policy of insurance with the second defendant, failed to give way and collided into the front passenger side of Ms Williams-Cook’s car.

2. [2]
   Ms Williams-Cook was 23 at the time of the accident. She was 10 weeks pregnant. In fact she consulted a General Practitioner at the Miles Medical Centre seven hours before the accident to confirm her pregnancy. She had previously experienced two miscarriages in the year prior to the accident.

3. [3]
   Ms Williams-Cook now seeks to recover damages for injuries she says she suffered in the accident. Whilst the second defendant has admitted liability, the issue of quantum remains in dispute.

4. [4]
   Ms Williams-Cook claims to have suffered injuries to her right shoulder and lumbar spine, namely:

1. (a)
   mild subacromial impingement of the right shoulder;

2. (b)
   soft tissue injury to the right shoulder;

3. (c)
   soft tissue injury to the lumbar spine; and

4. (d)
   mild spondylosis of the lumbar spine.

5. [5]
   The second defendant submits that the asserted injuries are not true because:

1. (a)
   Ms Williams-Cook was examined by Dr Christopher Bell, Orthopaedic Surgeon, for the purposes of her claim for damages on 26 January 2016. Ms Williams-Cook told him that she did not have lower back pain initially following the accident but said that this pain developed in subsequent months as her pregnancy progressed.

2. (b)
   Ms Williams-Cook was treated at the Chinchilla Hospital on the day of the accident. She was concerned that her pregnancy had been affected, and this issue was investigated. The only complaint of pain she made at that time was of muscular pains around the seat-belt area on the lower abdomen. An examination at the Hospital found no evidence of bruising on her chest or abdomen and no chest tenderness.

3. (c)
   Ms Williams-Cook subsequently attended the Miles Medical Centre for treatment on 26 August 2014, 9 October 2014, 13 October 2014, 6 November 2014, 7 November 2014, 27 November 2014, 3 December 2014, 5 December 2014, 9 December 2014, 12 January 2015, 31 January 2015 and 11 February 2015. The clinical records of the Miles Medical Centre indicate that Ms Williams-Cook made no complaint of pain or other symptoms or restriction of movement associated with her right shoulder or lumbar spine on any of those attendances.

6. [6]
   Ms Williams-Cook gave evidence that, at the time of the accident, she was heading to the cinema with her partner, Mr Jake Kirby, who was the front seat passenger. She described the impact as “intense” and although she had her seat-belt on, her body was “violently thrown”.^[1]

7. [7]
   Ms Williams-Cook was “feeling a really bad stabbing pain in [her] lower belly and as soon as [she] sat down on the curb [she] was feeling a pinching sensation up [her] back”. Her primary concern was “whether or not [her] child was ok.”^[2]Ms Williams-Cook “was really worried about the pain that [she] was feeling in [her] belly due to the fact that [she] had miscarriages before, and then one of the bystanders had called the ambulance and they had arrived”.^[3]

8. [8]
   Mr Kirby corroborated Ms Williams-Cook’s evidence about the impact of the collision. He said it was “very violent” as “after the initial impact on the front of the car, we spun around and the back of our car slapped his car as he was driving past and then, yeah, we done about a 540 [degree] turn”.^[4]He said he helped Ms Williams-Cook out of the driver’s seat who told him she was in pain.^[5]

9. [9]
   When the Queensland Ambulance Service arrived, Ms Williams-Cook was taken to the Chinchilla Hospital. The Hospital emergency notes record:

“23 yr old woman BIBA

MVA ‘T-Bone’. 60km/hr car spun +++

Passenger side damaged +++

No LOC. Initially 8/10 pain @ umbi 2/10

10wk gestation. 2x Miscarriages @ 10wk

No injuries reported.

Abdo tender [with] palpation. Pain from R) shoulder

to lower abdo – seat belt

For review by Dr. Paracetamol given.”^[6]

10. [10]
    Whilst at the Hospital, Ms Williams-Cook was examined by Senior Medical Officer Dr Phillip Ngorima. Dr Ngorima gave evidence that on examination Ms Williams-Cook was stable and that he did not observe any bruises on her chest or abdomen. There was no chest tenderness or sign of tenderness to the abdomen. An ultrasound scan revealed a viable foetus and the placenta looked normal. Dr Ngorima’s diagnosis was that of “muscular sprain”. There were no signs of significant trauma to the pelvis.

11. [11]
    When asked by Mr O'Driscoll who appeared for the second defendant, whether Ms Williams-Cook complained of pain in the lower back, Dr Ngorima said “there was no indication of that”.^[7]Dr Ngorima also said that Ms Williams-Cook told him she was pregnant and that she was having pain in the lower abdomen. He conceded that she was concerned for her unborn child and that was why he ordered an ultrasound scan of the uterus.^[8] 

12. [12]
    Three days following the accident, Ms Williams-Cook returned back to work at the Queensland Hotel Miles in her capacity as a bartender and gaming attendant. She performed an 8½ hour shift on Saturday 9 August 2014. The following day, she completed another 8½ hour shift. In the week following the accident, Ms Williams-Cook worked 19 hours between Monday to Friday.^[9]The following week (being the pay week ended Sunday 24 August 2014), Ms Williams-Cook worked 36.5 hours.^[10]

Evidence of Jake Kirby

13. [13]
    In the days after the accident, Ms Williams-Cook’s then partner Mr Kirby massaged Ms Williams-Cook’s shoulders and the back of her head but he “couldn’t get anywhere near the bottom of her back, because she complained to [him] about it. So [he] just didn’t touch it.”^[11]

Evidence of General Practitioners following the Accident

14. [14]
    The second defendant relied upon the evidence of a number of General Practitioners who treated Ms Williams-Cook after the accident as suggestive of the absence of any injury arising from it.

15. [15]
    On 26 August 2014, Ms Williams-Cook presented to the Miles Medical Centre and was seen by GP Dr Lenon Mandikiza who treated Ms Williams-Cook for a vaginal discharge. Dr Mandikiza indicated that Ms Williams-Cook did not make a complaint of back pain associated with the accident at that time.^[12]In his experience a pregnant lady presenting with back pain would have alerted him “to do a bit more in examination and to try and explore what the cause of the pain could have been”.^[13]

16. [16]
    Dr Mandikiza also treated Ms Williams-Cook on 9 October 2014, 13 October 2014, 6 November 2014 and 7 November 2014 largely for antenatal care. No complaints of back pain associated with the accident were recorded.^[14] 

17. [17]
    GP Dr Lancelot Tityiwe treated Ms Williams-Cook on 27 November 2014, 3 December 2014 and 5 December 2014 at the Miles Medical Centre. Dr Tityiwe said that his usual practice is to record what the patient has relayed to him, as well as his examination findings and management plan.^[15]No complaints of lower back pain were reported.^[16]

18. [18]
    Ms Williams-Cook attended upon GP Dr Kelvin Matingo of the Miles Medical Centre on 9 December 2014, 12 December 2014, 12 January 2015, 31 January 2015 and 11 February 2015. On each of those occasions, Ms Williams-Cook did not make any complaint of lower back pain. If a complaint of lower back pain was made, Dr Matingo’s usual practice would have been to record it in his notes.^[17]

19. [19]
    GP Dr Abdul Ahmed of the Drayton Street Family Practice treated Ms Williams-Cook on 1 June 2015, 9 March 2016, 29 July 2016 and 22 September 2016. No complaints of back pain were made. Notably on 9 March 2016, and relying upon the notes, Dr Ahmed indicated that Ms Williams-Cook requested a referral to an orthopaedic surgeon and he explained to her that, as she did not have any current symptoms, he could not provide a referral without a report.^[18]

20. [20]
    Dr Anna Cameron, in 2015, was a general practitioner practising out of the Drayton Street Medical Centre Practice in Nanango. Dr Cameron saw Ms Williams-Cook on 17 February 2015, 23 February 2015, 14 April 2015, 13 January 2016 and 25 February 2016 for a variety of medical ailments. Dr Cameron indicated that normally a patient would come into the consultation room and they would make a complaint regarding a medical issue. She would then record the details of the complaint and perform an examination in relation to the particular complaint. Dr Cameron’s usual practice is to ask if there were any other issues that the patient wished to discuss during the consultation.^[19]

21. [21]
    Dr Cameron indicated that no complaints of back pain were made on any occasion. Dr Cameron stated that on 25 February 2016, Ms Williams-Cook presented with a back x-ray and requested, at her lawyers’ request, a referral to an orthopaedic surgeon. Because the x-ray did not have a report, Dr Cameron was unable to provide a referral and she indicated to Ms Williams-Cook that she would need to have a copy of the report to do the referral. According to Dr Cameron, even on that occasion no complaint of lower back pain was made, otherwise it would have been recorded in the notes.^[20]

Evidence of Dr Christopher Bell, Orthopaedic Surgeon

22. [22]
    Ms Williams-Cook was first examined by Orthopaedic Surgeon Dr Christopher Bell for the purposes of a medico-legal opinion on 28 January 2016. Prior to that date as noted above, Ms Williams-Cook sought treatment from the Miles Medical Centre and Drayton Street Family Practice, of which the records plainly demonstrate that no complaint of any accident related injury was ever recorded.

23. [23]
    In his first report of 17 March 2016, Dr Bell concluded that Ms Williams-Cook was mildly disabled with a number of musculoskeletal complaints most notably the right shoulder and lower back. He said the hip pain was ongoing but intermittent and did not seem to affect Ms Williams-Cook’s activities. He believed the hip and groin pain was associated with Ms Williams-Cook’s pregnancy. He noted that Ms Williams-Cook had mild subacromial impingement on the right and mild spondylosis of the lumbar spine. He was of the belief that the accident contributed to Ms Williams-Cook’s current right shoulder and lumbar symptoms. In particular he noted that the right shoulder pain was clearly referrable to the accident and the back pain was due to mild spondylosis with (delayed) onset of symptoms due to the accident.^[21]

24. [24]
    Under cross examination, Dr Bell accepted the proposition that the longer the time frame from onset of symptoms and trauma, the more tenuous the relationship. Dr Bell accepted that he made the differentiation in his first report in that there was a difference between the causal connection of the right shoulder pain and the delayed onset of the pain due to the mild spondylosis.^[22]He considered Ms Williams-Cook’s condition to be stable and stationary (some 19 months or so after the accident). He accepted that Ms Williams-Cook was not unfit for certain duties or work pattern in the future or that the accident had curtailed her working life. He was, at the time, of the belief that Ms Williams-Cook was not required to have episodic periods away from work.

25. [25]
    About two years later, Dr Bell’s opinion in relation to Ms Williams-Cook’s condition being stable and stationary, changed. He prepared another report dated 28 March 2018. By that stage the pain in Ms Williams-Cook’s right shoulder had resolved; however the “predominant feature” was Ms Williams-Cook’s lower back pain. Dr Bell stated:

“The back pain likely developed a short time after the accident and has remained persistent if not increased since the last review. She was unable to continue working as a bar attendant with a contributing factor being increasing lower back pain with prolonged standing. She has attempted treatment with a gym program which she was unable to perform this for any length of time due to financial constraints. She was unable to assess whether this program was helpful. She has had no physiotherapy throughout the course of her injuries”.^[23]

26. [26]
    Regarding Ms Williams-Cook’s departure from her work at the Murgon Services Club in April 2016, Dr Bell noted:

“This was due to a number of combination of factors… with one of them being difficulty with back pain with prolonged standing. It was not until May 2017 that she regained employment with Endeavour Foundation in Bundaberg where she works as disability support worker. She is currently working 15 hours per week in this role. She avoids heavy lifting, bending and twisting. She has not had any days off due to her back pain”.^[24]

27. [27]
    Under cross-examination, Dr Bell accepted that he could not nominate a specific point in time as to the onset of Ms Williams-Cook’s lower back pain. In his view if the back pain occurred some three to six months after the accident, “then it would be very unlikely to be a result of the accident”.^[25]

28. [28]
    Despite what Ms Williams-Cook reported to him about working 15 hours per week in the role of a disability support worker, Dr Bell was taken to Ms Williams-Cook’s actual work pattern after the accident (as revealed from the records of her employment with Endeavour Foundation). He accepted that it was a completely different history to the number of hours Ms Williams-Cook had relayed to him.^[26]

29. [29]
    Dr Bell concluded that in accordance with Table 15-3 of the AMA5 Guides, Ms Williams-Cook had a DRE Lumbar Category II due to the asymmetric range of motion in flexion in extension in spasm to palpation. He ascribed a 7% whole person impairment due to difficulty with domestic tasks. Regarding future work capacity, Dr Bell noted that “she should avoid any employment that may aggravate her back symptoms, including any job that requires moderate lifting, and long periods of standing or sitting. She will have the ongoing requirement to be able to change positions on a regular basis. She will also be limited in the hours that she works, it will be unlikely she will tolerate extended hours for the benefit of overtime, for example”.^[27]In his view, Ms Williams-Cook now has more limited employment opportunities due to her lower back pain. She is unable to work overtime and extended shifts. She is unable to perform work that involves lifting or repetitive bending or twisting. He expected her symptoms not to deteriorate with time and that she would expect to remain in the workforce through to retirement age. He considered that “episodic periods off work are possible for the foreseeable future”.

Evidence of Hayley Henness

30. [30]
    Ms Henness was the club manager at the Murgon Services Club where Ms Williams-Cook worked for a period of time. Ms Williams-Cook commenced working at Murgon Services Club initially in 2014 and then left for some time and then returned again in 2015 for seven months.^[28]Ms Williams-Cook resigned from her employment at the end of that period. Ms Williams-Cook’s work, as a bar and gaming attendant, required her to perform manual handling activities.

31. [31]
    According to Ms Henness, Ms Williams-Cook did not disclose any problems or difficulties with her lower back in carrying out the work duties. In particular Ms Williams-Cook made no complaints to Ms Henness regarding shifting of kegs or that she was unable to perform that particular work task.^[29]Ms Henness said Ms Williams-Cook’s duties extended to doing pretty much “everything” including payouts, serving customers, restocking and driving the courtesy bus. Ms Henness did not observe Ms Williams-Cook having any difficulties in carrying out any manual task.^[30]In cross examination by Mr Canceri on behalf of Ms Williams-Cook, Ms Henness did not actually observe Ms Williams-Cook moving or shifting kegs of beer, “but it would have been done while [Ms Williams-Cook] was on duty”.^[31]

32. [32]
    She said Ms Williams-Cook resigned from the Murgon Service Club for reasons unrelated to any accident related injury.^[32]

Evidence of Ms Williams-Cook

33. [33]
    Ms Williams-Cook moved to Kingaroy in early 2014. She initially worked at the Murgon Services Club as a bar and gaming attendant until 7 April 2014 before finding similar work at the Queenslander Hotel Miles. She found the work at the Queenslander Hotel a lot easier than the other jobs.^[33]

34. [34]
    Ms Williams-Cook gave evidence that following the accident, her hours of work had in fact “decreased dramatically”; she was doing 40-50 hours over the week before the accident and the hours decreased after the accident.^[34]  Despite indicating in the Motor Accident Insurance Act 1994 Additional Information Form at question 32 that she had three weeks off work from the date of the accident, Ms Williams-Cook said:

“It wasn’t necessarily a lie. I had put down ‘three weeks’, but that’s what I believed I’d taken off at the time, and it was a year after – near a year, six months after the accident, and I honestly believed that I had taken a few weeks off, and not just from me, from my manager.”^[35]

35. [35]
    Ms Williams-Cook indicated that in addition to her reduced hours, her work duties changed in that she worked in the bottle shop, but was not allowed to restock the shelves. She said that she had to work in pairs with a male colleague “to make sure that I was taken care of at work”. The change in duties occurred when Ms Williams-Cook told her employer about the pain from her accident-related injuries and pregnancy.^[36]However there was no independent corroboration at all of the change in her work duties from Ms Williams-Cook’s former employers or work colleagues sufficient for me to accept the reliability of this assertion.

36. [36]
    Ms Williams-Cook left the Queenslander Hotel in January 2015. She resigned because it was “fairly close to giving birth”.^[37] 

37. [37]
    Ms Williams-Cook’s son was born on 28 February 2015. In June 2015 she and Mr Kirby separated. In July 2015 she returned to the Murgon Services Club in the role of a bar attendant who also carried out gaming duties during which time she completed a Certificate III in Community Service Work, on 30 December 2015 following a three month course.^[38] Ms Williams-Cook resigned from the Murgon Services Club on 3 February 2016.^[39] 

38. [38]
    In May 2016, Ms Williams-Cook moved to Nanango.

39. [39]
    Following a four month course, Ms Williams-Cook completed a Certificate IV in Mental Health on 14 July 2016. She then completed a Diploma in Community Service Coordination on 8 August 2016.^[40]

40. [40]
    In May 2017, Ms Williams-Cook secured employment at Bundaberg with the Endeavour Foundation as a support worker. Her duties as a support worker include collecting clients in a work car and taking the clients into the community for activities such as pottery, ladies group, bowling and pool competitions. Ms Williams-Cook said that she did not work every day of the week but on average she worked between 15 hours or more recently 20 hours per week.^[41] She worked with elderly people, not the young, because “there’s a lot that goes into the job” and she didn’t “have the experience and [she] physically can’t uphold to those duties”.^[42] Working with younger Endeavour Foundation clients was more physically demanding since elderly people do not require any lifting.^[43]

41. [41]
    Ms Williams-Cook’s intentions are to continue working with Endeavour Foundation and to pursue a career as a youth diversion program coordinator to assist children experiencing drug, alcohol or other abuse. She said that she did not think she could get back to work as a bar attendant or a gaming manager because she “just wouldn’t be able to keep up”. This was due to her “back and with a high pace of how I know that bars work”. Her view was that she “wouldn’t be able to keep up with those responsibilities or duties”.^[44]

42. [42]
    Ms Williams-Cook is of the view that her back has deteriorated since the car accident. She experiences pain and discomfort every day. It is tight especially in the morning, when she drives and sits or stands for long periods of time.^[45] She avoids lifting heavy weights.

43. [43]
    According to Ms Williams-Cook, she has sought treatment on a couple of occasions from general practitioners to ascertain if they could refer her to somebody to help but she tends to take Advil or Nurofen, which she estimates at a cost of $10 – 15 per week.^[46] She has not received any physiotherapy but has attended a gymnasium with the assistance of a personal trainer to initially help strengthen her back. That program lasted for about three months.

44. [44]
    Ms Williams-Cook said that she is currently living with her son and his father, Mr Kirby. She said she and her son’s father have not reconciled but they are helping each other until Mr Kirby secures work. They both assist with the domestic duties. In particular, Mr Kirby cooks dinner and she will clean the kitchen after dinner, straighten out the bedrooms and sweep. She does not do any vacuuming. Mr Kirby cleans the bathrooms and does the mowing. The expectation is that Mr Kirby will remain in the house for another few months.^[47]

Findings in relation to the nature and extent of the injuries

45. [45]
    The second defendant submitted that, at worst, Ms Williams-Cook lacked credit and deliberately lied and, at best, she was simply an unreliable witness. Although I do not consider Ms Williams-Cook lacking in credit, there are anomalies within her own evidence which cause me to question, in some respects, the reliability of her evidence.^[48] Overall I find that Ms Williams-Cook’s evidence should not be accepted unless it is corroborated by objective independent evidence.^[49] It is perplexing that it was only after Ms Williams-Cook had seen her solicitors regarding pursuing a personal injuries claim in relation to the accident, that she sought any assistance for her back from a general practitioner or any medical practitioner.^[50] Further on a number of occasions, Ms Williams-Cook’s sole evidence seemed inconsistent with the objective evidence. For example, despite claiming she required three weeks off work and verifying to the truth and accuracy of it, Ms Williams-Cook merely had two days off following the accident.^[51] Further in a statutory declaration on 12 January 2016, Ms Williams-Cook claimed to have suffered injuries to her lower back, left hip and abdomen, yet on the following day, she consulted Dr Cameron whose notes reveal nothing about the lower back, left hip or abdomen. I do not accept the submission made on Ms Williams-Cook’s behalf that these are matters which can be classed as ‘mistaken belief’.^[52] Additionally the overwhelming contemporaneous medical evidence subsequent to the accident, including following the birth of her son some 6½ months later, cause me to doubt the veracity of some of Ms Williams-Cook’s claim.^[53] 

46. [46]
    In those circumstances, I consider the absence of supporting evidence for some of Ms Williams-Cook’s assertions is problematic for her claim.

47. [47]
    It was submitted on behalf of Ms Williams-Cook that the absence of complaints in relation to the lumbar spine and right shoulder were explicable on the basis that she was told by the Chinchilla Hospital that her options for treatment were limited because of her pregnancy. She was not able to have an x-ray or anything stronger than paracetamol. I would accept the force of that submission if there had not been attendances by Ms Williams-Cook following the birth of her son. However the medical records, even following the birth of her son in February 2015, demonstrate an absence of any complaints of pain to the back and right shoulder regions. Ms Williams-Cook attended multiple general practitioners whose usual practice was to ask the patient the reasons for their presentation and make contemporaneous records and examinations following the patient’s self-reporting. None of them recorded any symptomatology to the lumbar spine or shoulder.

48. [48]
    It was submitted that given nothing could be done for Ms Williams-Cook’s accident-related injuries during her pregnancy, as such there was no need for her to continuously trouble her general practitioners with musculoskeletal complaints which they could not effectively treat during the pregnancy. Again, the same applies with respect to the absence of complaints post the arrival of Ms Williams-Cook’s son. Ms Williams-Cook said that she complained “a fair few times” about her lower back pain when seeing various general practitioners and the advice that she was given was that it was just part of her pregnancy and nothing could be done to investigate it. Many, if not all, of the doctors denied providing such advice to Ms Williams-Cook, and again, whilst that may be so for the period concerning Ms Williams-Cook’s pregnancy, it does not provide sufficiently persuasive proof concerning the post-pregnancy attendances where no complaints of back or shoulder pain were recorded.

49. [49]
    Ms Williams-Cook relied upon the evidence of Dr Mandikiza as to there being a very real possibility that her complaints were simply not recorded as there were other complaints that were more serious and pressing. However that does not exclude the attendances upon Doctors Tityiwe, Matingo, Ngorima and Cameron whom, whilst understandably not having any independent recollection of the consultations with Ms Williams-Cook, do not record in their notes Ms Williams-Cook presenting with such complaints.

50. [50]
    In addition, I place more weight on the collective evidence of the general practitioners over the opinion expressed by Dr Bell. The collective evidence of the general practitioners reveals in excess of twenty occasions (including the post arrival of Ms Williams-Cook’s son) where no complaints of back pain were recorded or raised before the general practitioners.

51. [51]
    I remain unpersuaded by the difference in Dr Bell’s two reports concerning the whole person impairment ratings. On the one hand in his first report Dr Bell concluded, among other things, that the permanent impairment to Ms Williams-Cook’s spine was 1% (presumably under Chapter 18 of the AMA5 Guides). He formed the view that the accident caused Ms Williams-Cook to suffer a permanent impairment which was not likely to improve above the current level of impairment even after treatment. He considered her condition to be stable and stationary. Yet in his subsequent report two years later, Dr Bell concluded that the permanent impairment to Ms Williams-Cook’s spine increased to 7% (which he assessed in accordance with Chapter 15, Table 15-3). In addition and whilst not rejecting the entirety of Dr Bell’s opinions, I find that he was influenced in some respects by what Ms Williams-Cook told him, when clearly on the evidence such matters were not correct. For example, Dr Bell was told by Ms Williams-Cook that she needed three weeks off work following the accident. This is at odds with her returning to work on 9 August 2014 and performing an 8½ hour shift and continuing to work until the end of her pregnancy. He was also told that Ms Williams-Cook left her employment at the Murgon Services Club due to a combination of factors including that she was experiencing difficulty with prolonged standing. There was simply no evidence from her then employer about this or indeed former work colleagues.

52. [52]
    I accept the evidence given by Mr Kirby concerning the severity of the impact and the immediate aftermath of it. I found him to be a credible and reliable witness, and to some extent, I can accept that Ms Williams-Cook was concerned about her pregnancy such that she did not raise any asserted accident related back pain to the general practitioners.

53. [53]
    All in all, I find that the accident caused Ms Williams-Cook to suffer an injury to her lumbar spine and right shoulder, namely a number of musculoskeletal complaints mainly to the right shoulder and low back.^[54]

What damages are recoverable?

General Damages

54. [54]
    On the basis of the evidence, and the findings I have made above, I accept that the Ms Williams-Cook’s accident caused injuries are appropriately classified according to schedule 4 of the Civil Liability Regulation 2014, as follows:

1. (a)
   For the shoulder injury, item 97 (moderate shoulder injury). This provides an injury scale value between 6 and 15 points.

2. (b)
   For the lumbar spine injury, item 94 (minor lumbar spine injury). This provides an injury scale value between 0 and 4 points. I do not accept this submission on behalf of Ms Williams-Cook that Ms Williams-Cook’s lumbar injury should be assessed under item 93 (moderate lumbar spine injury) having regard to the commentary and my findings, including my reservations about some of Dr Bell’s opinions.

55. [55]
    As there are multiple injuries, it is appropriate to consider ss. 3 and 4 of schedule 3 of the Regulation. Having regard to the definition of “dominant injury” in schedule 8 to the Regulation, the shoulder injury is considered to be the dominant injury because it has the highest ISV range.

56. [56]
    I assess the ISV for Ms Williams-Cook’s injuries as 7 points. I do not consider the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries.

57. [57]
    Accordingly applying the relevant value from table 6, schedule 7 to the Regulation, the award for general damages will be $10,390.00.

Past Special Damages

58. [58]
    Ms Williams-Cook claims $2,376.00 for past special damages.

59. [59]
    It was submitted that Ms Williams-Cook gave unchallenged evidence that since the accident she has continuously taken Panadol and Nurofen at a cost of about $10.00 to $15.00 per week. However the second defendant submitted that there was no component proven for accepting anything but a modest sum for a couple of weeks of Panadol and anti-inflammatories for the shoulder injury. It submits $100.00 is a reasonable assessment of this damage.

60. [60]
    I note in Dr Bell’s first report that no treatment had been utilised and no analgesics were required for any of Ms Williams-Cook’s complaints.^[55] The second report of Dr Bell identifies Ms Williams-Cook utilising Nurofen and Advil twice per day for symptomatic relief of back pain. He considered the requirement for pain killers will be ongoing at a cost between $10.00 and $20.00 per month.

61. [61]
    No receipts have been furnished.

62. [62]
    Allowing say $10.00 per month over 4 years, past special damages will be $500.00 (inclusive of interest).

Past Economic Loss

63. [63]
    Ms Williams-Cook advances a claim for $19,800.00 for past loss of earning capacity. It was submitted Ms Williams-Cook’s hours of work dropped by 14 hours per week immediately after the accident. The pay slips establish that, prior to the accident, Ms Williams-Cook worked an average of 40 hours per week. Some 58 hours in total has been claimed at a gross hourly rate of $21.69 for the weeks ended 11, 18 and 25 August 2014 and 1, 8, and 15 September 2014. A nett amount of $1,100.00 is being claimed. Thereafter the sum of $300.00 nett per week was claimed from 3 February 2016 ($18,000.00).

64. [64]
    I have reviewed the payslips in the lead up to the accident and in the period immediately following it which, on my calculations, do not equate to the hours claimed on behalf of Ms Williams-Cook. I am also not persuaded that Ms Williams-Cook left Murgon Services Club due to any accident related injuries. In doing so, I prefer the evidence given by Ms Henness that Ms Williams-Cook left for other reasons and there is no other independent evidence led in support of Ms Williams-Cook’s claim that she left work because of an inability to carry on employment because of any accident related injuries. For example, a representative from Queenslander Hotel Miles was not called.

65. [65]
    The second defendant submits that no award should be made for past economic loss.

66. [66]
    I note a medical certificate was issued from the Chinchilla Hospital certifying Ms Williams-Cook unfit for two days.^[56] 

67. [67]
    Allowing for those two days (between 7 and 8 August 2014) at a gross rate of $21.69, produces $368.73. I will therefore award $350 nett for past economic loss.

Past Loss of Superannuation Entitlements

68. [68]
    The figure for past loss of superannuation entitlements at 9.5% is $33.25.

Future Economic Loss

69. [69]
    Under section 55(2) of the Civil Liability Act 2003, the court may only award damages in the event it is satisfied that the person has suffered, or will suffer, loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. This involves a consideration of whether Ms Williams-Cook has demonstrated, on the balance of probabilities, that her earning capacity has been diminished by reason of the accident-caused injuries and, if so, whether that diminution in earning capacity is or may be productive of financial loss.^[57] It remains with Ms Williams-Cook to show that her earning capacity has been diminished by the accident-caused injury and “that diminution is or may be productive of financial loss.”^[58]

70. [70]
    Ms Williams-Cook seeks a global amount of $150,000.00 for future loss of earning capacity given:

1. (a)
   Ms Williams-Cook is only 26 years of age and has a further 39 years of working life until the usual retirement age;

2. (b)
   She continues to be troubled by her lumbar spine injury, which has become worse with time;

3. (c)
   Ms Williams-Cook’s lumbar spine injury has rendered her unfit for unrestricted duties as a bar attendant and gaming attendant/manager, which she performed on an unrestricted basis for a number of years before the accident; and,

4. (d)
   Ms Williams-Cook is at a serious disadvantage on the open labour market by reason of her physical impairment.

71. [71]
    The second defendant submits no award for future economic loss should be made. It does so on the basis that the evidence demonstrates that Ms Williams-Cook is currently working significant hours and the decrease in the hours is due to shift changes, not any problem with her back.

72. [72]
    I accept Ms Williams-Cook was not required to leave her employment at the Murgon Services Club because of any back complaint. In addition, Ms Williams-Cook worked for the Queenslander Hotel in the lead up to her son’s birth.

73. [73]
    I note that in May 2017, Ms Williams-Cook secured employment at Bundaberg with Endeavour Foundation as a support worker. On average, she works between 15 hours to 20 hours per week.

74. [74]
    She is now 27 years of age.

75. [75]
    Dr Bell made reference in his first report that Ms Williams-Cook will not require episodic periods from work. However in his subsequent report he determined that Ms Williams-Cook should avoid any employment that may aggravate her back symptoms, including any job that requires moderate lifting, and long periods of standing or sitting. He also stated that she will have the ongoing requirement to be able to change positions on a regular basis and will be limited in the hours that she works. He noted that although the symptoms were not expected to deteriorate with time, she would require episodic periods off work.^[59]

76. [76]
    Despite Ms William-Cook now working in a career that she wishes to pursue, she said that her role at Endeavour Foundation working with the elderly clients was less physically demanding than working with younger clients. Her view in some respects seems consistent with the opinion of Dr Bell in his second report. I also take into account the general disadvantage Ms Williams-Cook might suffer on the open labour market having regard to her age and modest impairment and disability. As such, I am satisfied that Ms Williams-Cook has, on balance, demonstrated that her earning capacity has been diminished and that the diminution in her earning capacity is, or may be, productive of financial loss.

77. [77]
    I will allow $20,000.00 for this head of damage given it is impossible to precisely calculate this head of damage and there is no defined weekly loss. This amount is reflective of a global disadvantage in light of Ms Williams-Cook’s age, education, work history and experience.

Future Loss of Superannuation Entitlements

78. [78]
    Allowing the submission on behalf of Ms Williams-Cook concerning 9.5% for superannuation, I calculate $1,900.00 based on the above award.

Future Special Damages

79. [79]
    Ms Williams-Cook advances a claim for $22,467.00 for future special damages. This is based on the opinion expressed by Dr Bell, in the absence of any contradicted opposing expert opinion, that physiotherapy would be beneficial followed by a gym strengthening and rehabilitation program, with supervision as well as ongoing requirement for pain killers and medication.

80. [80]
    The second defendant submits that no award should be made because there has really been no attendances on doctors for any treatment at all, let alone for Ms Williams-Cook’s back for a long period of time. The second defendant submits Ms Williams-Cook has not established any loss.

81. [81]
    Consistent with my findings with respect to past special damages, I anticipate $10.00 per month for the remainder of Ms Williams-Cook’s life (multiplier 1,015). I will allow $2,500.00.

Future Commercial Domestic Assistance

82. [82]
    An amount of $40,000.00 is sought on behalf of Ms Williams-Cook on a global basis based on two hours assistance per week.

83. [83]
    In June 2015 following the breakdown of the relationship between Ms Williams-Cook and Mr Kirby, Ms Williams-Cook managed to find work at the Murgon Services Club. She carried out all domestic tasks after Mr Kirby left her up until the period that Mr Kirby moved back in.

84. [84]
    Based on the decision of Nucifora & Anor v AAI Ltd [2013] QSC 338 at [51] - [60], I am not satisfied there is a need for any future paid care. I consider that Ms Williams-Cook is able to carry out all aspects of domestic services. She has not obtained any paid care to date and I note that up until the time that Mr Kirby returned to the household, Ms Williams-Cook was independently carrying out all domestic tasks herself. In fact Ms Williams-Cook gave evidence that she continues to clean the kitchen. She also accepted that the need for vacuuming does not seem to be necessary in that whilst there is currently a dog in the household, the need for the vacuuming will be removed when Mr Kirby departs the house with the dog.

85. [85]
    In the circumstances I find Ms Williams-Cook has not proven that there is any need for future paid care.

Conclusion

86. [86]
    I award the following damages to Ms Williams-Cook:

87. [87]
    I will hear the parties as to costs.