O'Brien v Merton[2020] QDC 299

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an action for personal injuries suffered by the plaintiff in a motor vehicle accident on 5 February 2018.  There was a collision between the plaintiff’s vehicle and that driven by the first defendant, which occurred at the intersection of service station premises at the corner of the Gold Coast Highway and Nineteenth Avenue, Palm Beach on the Gold Coast.  Liability is admitted.  Thus the issues at the trial relate solely to quantum.
2. [2]
   The plaintiff’s case as pleaded is that she suffered spinal injuries which have left her in pain.  She has thus been unable to pursue work as an enrolled nurse and seeks damages for economic loss both past and future.  She also makes a claim for future medical treatments, special damages and interest.  
3. [3]
   The defendants defend the matter on the basis that the plaintiff suffered a minimal physical injury, and her entitlement to most of the heads of damage outlined above is denied. This judgment will set out the pleadings, the evidence, the submissions and the conclusions reached.

The pleadings

4. [4]
   The collision occurred when the plaintiff was travelling in a generally western direction from the Gold Coast Highway along 19^th Avenue at Palm Beach on the Gold Coast.  The incident occurred at about 8.45 am on 5 February 2018.  The plaintiff was driving to the local school to drop her daughter off.
5. [5]
   The defendant entered the road from a service station and essentially collided with the plaintiff’s vehicle in a “T-Bone” type collision, impacting the rear driver’s side passenger door and wheel arch.  The force was sufficient to distort the wheel arch such that the tyre deflated, and to move the rear of the plaintiff’s vehicle towards the gutter, although the passenger side did not actually hit the gutter.  There were therefore significant lateral forces on the plaintiff’s vehicle and, consequently the plaintiff.
6. [6]
   The plaintiff is said to have suffered personal injury, loss and damage including an injury to the lumbar spine, thoracic spine and cervical spine.  There are pleadings for a degree of permanent impairment, economic loss and other damages.
7. [7]
   In terms of the Civil Liability Regulations 2014, the claim for general damages is based on an ISV of 4 in item 94, amounting to $5,920.  Further, it is said that the plaintiff intended to pursue work as an enrolled nurse (for which the plaintiff is qualified) and her injuries make this more difficult to pursue which will sound in future economic loss.  There is also a claim for past economic loss, as well as special damages.
8. [8]
   The defence of the defendants admits liability for the collision and there is little dispute as to the facts relating thereto.  However, as outlined above, the defendant’s pleaded case is that the plaintiff’s injury was minimal in nature.  It is pleaded that the ISV of 4 is out of proportion for the plaintiff’s injuries.  Further, the plaintiff was not employed at the time of collision and has had further children since which would have impacted on her past economic loss.  In relation to future economic loss it is said that the medical evidence does not demonstrate any relevant restriction in the plaintiff’s ongoing ability to earn an income.

The evidence

The plaintiff

Background, education and experience

9. [9]
   The plaintiff was born on 9 March 1989.  She was 28 years of age at the time of the accident and is now 31.  She was born and raised in Penrith and completed secondary education there at Xavier College.  She studied, firstly, assistant nursing and later enrolled nursing at Nepean College.  Her assistant nursing college was a six month course with one practical placement.  In her two year enrolled nursing course, which she completed in 2016, she had three blocks of practical experience.  
10. [10]
    This included, firstly, placements in nursing homes, which, understandably, involved significant physical tasks.  This included helping patients access the toilet, depending on their varying degrees of mobility, with some assistance from some manual devices.
11. [11]
    Sometimes these tasks were able to be completed alone, but often two nurses were required for a large patient.  Changing sheets for a bed bound patient was a particular physical task which the plaintiff described in some detail.  It involves significant effort whilst standing and leaning over; in other words, significant forces are placed on the nurses’ spine.  The plaintiff has a relatively small frame, being five feet tall and weighing 45 kilograms.  Many of the nursing tasks she undertook involved using her “full force”.
12. [12]
    In relation to patient transfers, for example to shower or toilet, lifting devices were used but she still had to roll and manipulate the patient.  Further, sometimes she had to do this without a lifting device.  She assisted patients out of bed and supported them in walking.  She would also guide them on the toilet.
13. [13]
    The plaintiff also had a placement at Nepean Hospital, which involved slightly different tasks.  Some of the patients were in need of more acute care and this was more physically demanding work, particularly in the setting of sometimes life threatening, urgent situations.
14. [14]
    The plaintiff also had a third practical placement at the Springwood Hospital which involved “slow stream” rehabilitation patients.  These were younger patients recovering from serious accidents including fractures and spinal damage.  This also involved significant physical force, sometimes while bending.  It was physically quite demanding work.
15. [15]
    As set out below, the plaintiff has limited post qualification experience.
16. [16]
    The plaintiff has three children aged eight years, one year and five months respectively.  She is a single mother although she does receive some support from the father of her two youngest children.  Obviously the care of her children has presented significant difficulties for her taking part in the workforce in recent times.
17. [17]
    The plaintiff’s nursing registration, although not presently current, may be renewed up to May of 2021, thus she will be qualified to take part in the workforce as an enrolled nurse in the future, subject to her physical problems.
18. [18]
    She gave evidence that she has looked for employment, particularly since moving to the Gold Coast in February 2015.  She had applied through a nursing agency and tried part-time work at the time when her eldest daughter was starting school.  She also had made applications to the Gold Coast Hospital, Pindara, the Logan Hospital, the Tweed Hospital and Murwillumbah Hospital, all unsuccessfully, as she understands it, because of her lack of experience.  Exhibit 3 is her application with “Smart Jobs”.  There are also documents demonstrating her applications to Logan Hospital and Murwillumbah Hospital in 2017 and 2018, Exhibits 4 and 5.  The later application was two weeks after the collision occurred.
19. [19]
    The plaintiff had some work through the nursing agency and was in the casual pool for nursing homes.  When she did this work she worked six to 12 hour shifts.  She found this somewhat exhausting, particularly nightshifts.  This employment was sporadic.  She was able to do it when her mother came to stay to assist her with childcare.  This agency, Caring 4U, paid her $1,803 in the 2016/17 financial year.

The accident and injuries

20. [20]
    The plaintiff described the accident in terms as outlined above.  Exhibit 6 is the photographs of the damage to her car.  She was moving slowly, about 10 kilometres per hour, having just turned a corner.  Her evidence was that the other car was moving somewhat faster and pushed her vehicle towards the kerb.  Her car had to be towed, with the tyre deflated.  The plaintiff walked her daughter to school and then the first defendant gave her a lift home.  In the collision she suffered, in effect, a sideways whiplash injury to her spine.  She felt OK but was shaky and felt symptoms later on.  At home she was nauseous and vomiting then felt pain in her upper back, tingling in her arm and a “crunching” feeling in her spine.  She went to the Tweed Hospital later that day where she was given anti-nausea medication intravenously.  She was complaining of dizziness.^[1]
21. [21] The plaintiff’s evidence was that later that night she started to suffer headaches. These subsided and then later came back and she suffered back and shoulder pain.  She was unable to continue with her normal exercise in the gymnasium.

22. [22]
    The plaintiff consulted her general practitioner, Dr Seton, on 6 March 2018 but did not, according to the notes, complain of this injury (this is contested, as set out below), rather was concerned about her fertility^[2].  In fact she fell pregnant in May of 2018.  It was not until 29 June 2018 that the injury was noted by her general practitioner.  The relevant note is:

“Car major damage injuries the shock and right upper back pain lasted one month.  Pain at gym at present, odd pain due to pregnancy.”

23. [23]
    She was found to have a full range of motion of her neck but does get an ache in para spinal muscles from time to time when she over does it and suffers from neck pain and headaches.^[3]
24. [24]
    In the meantime, the plaintiff had completed a notice of claim for damages to commence the claim process (leading to these proceedings), in March of 2018 and did complain of injuries in the claim form, in the sense that, although details were not given, she said she was waiting for the injuries to stabilise.^[4]
25. [25]
    The plaintiff’s evidence is that the pain never went away.  It did not inhibit her normal household duties but she did have migraines at times at night.  She had no such pain pre-collision.  She did have some lower back problems previously after complications with an epidural injection at the time of the birth of her first daughter, however those problems eventually resolved.  
26. [26]
    The plaintiff’s evidence was that the neck and back pain have been more continuous since her third pregnancy.  She has had minimal treatments including two sessions of massage, but her evidence is that she could not afford more consistent treatment.  The plaintiff’s second child was born in January 2019, and when she had to carry him as an infant it caused her pain.  She moved from the Gold Coast to Moranbah in March 2019, to be nearer to her then partner, the father of her two sons, who is employed in mining in the area.  Also her father, who lives in Rockhampton, was able to spend time in Moranbah to help support her.  During her time in Moranbah she went to the gym a number of times but was in pain and therefore ceased.  However she was able to get work in the crèche at the gym which continued for a period of time, until the gym closed at the beginning of the current pandemic.
27. [27]
    The plaintiff said that during her time in Moranbah she had enquired at the local hospital but there were no employment opportunities.  The largest local hospital was in Mackay, two hours away.  Her work at the crèche did cause her some pain, including a number of physical tasks.  Essentially she has less pain from her neck and back if she has less physical activity.  
28. [28]
    Her youngest son was born on 31 May 2020.  At that stage the plaintiff had been staying with a friend in Moranbah.  She moved back to the Gold Coast and her son was born in the Gold Coast Hospital.  She felt more pressure in her back during that pregnancy.  Her plans had previously been to return to nursing from when her youngest son is 12 months of age.  This would coincide with the cut-off date for renewing her nursing registration in May 2021.  
29. [29]
    The plaintiff does receive some support from the father of her two sons.  He still works in a mine outside Moranbah on a fly in, fly out basis.  Otherwise he lives in Murwillumbah with his parents and is able to assist the plaintiff at times.  He provides some financial assistance with rent.
30. [30]
    The plaintiff does have a further work history.  Some time ago she worked at the Australian Tax Office on a casual basis doing data entry, four days per week for about three years.  She feels she could cope with that type of employment.  She also did childcare work after the Tax Office job became unavailable.  She did training for a Certificate III in Childcare.  She also did bar work in Sydney and sales work for the Fitness First organisation.  The bar work that she did was quite physical and she feels she would struggle with that type of occupation.
31. [31]
    The plaintiff is presently in receipt of the parenting payment and family tax benefit.  Her payments have been increased more recently with the Covid 19 supplement.

Cross examination

32. [32]
    In cross-examination the plaintiff agreed that the damage to the other vehicle in the collision was fairly minor (photographs were tendered) and her vehicle was not actually pushed as far as the gutter.  Her vehicle did not “spin around” as she had described, including to her specialist Dr Low; rather it was moved somewhat off line.
33. [33]
    The plaintiff agreed that she was able to walk into the hospital and the hospital notes were put to her as outlined above.  The plaintiff’s evidence was that she had mentioned the injury to her general practitioner on 6 March 2018, although there is no note of it.  She agreed that she originally said that her symptoms were somewhat better after a month.  She said that she is a somewhat stoic person, and that since that time her symptoms had gotten worse.  She agreed that, when claiming for medical attendances, she had not ticked the attendance on 6 March 2018.  She was taken through the problems that she had after an accidental dural puncture at the time of the birth of her daughter in 2012. This was during an epidural procedure; I understand it to be an accidental puncture of the dura mater, one of the membranes around the spinal cord.  She initially had seizures and was kept in hospital for a time.  She had headaches and a stutter and initially some leg weakness which resolved after about a week.  She had some ongoing symptoms in the form of a stutter for up to two years.^[5]  She agreed that she had not told either Dr Low or the defendants’ orthopaedic surgeon, Dr Boys, about the dural puncture, saying that in her view it was not relevant to the later motor vehicle accident^[6].  
34. [34]
    The plaintiff agreed that she had never consulted a doctor about her migraines^[7].  She described these as producing symptoms of light sensitivity and nausea.  She suffers them twice weekly, sometimes decreasing to monthly.  She did not, in terms, describe migraines to Dr Low or Dr Boys, although she did mention headaches to Dr Low.  She agreed that she could still do data entry tasks and also sales and receptionist duties.  She said that she would have more problems with childcare.  She has previously done cleaning work for a hairdresser, for which she was paid in kind with haircuts.^[8]
35. [35]
    She was challenged in cross-examination as to her attempts to find work, but adhered to her version that she had done her best to do so.  She then agreed with the logical proposition that her ability to look for work between the accident and the present time had been restricted by her childcare duties as a single mother.  She said that she did intend to return to work in the future and would need to arrange childcare^[9].  She intends to renew her nursing registration by May next year^[10].  She agreed that she had not made any request through her solicitors for the defendant insurer to fund any medical treatment for her.  She agreed that in March 2019 she had received a cosmetic procedure, in the form of dermal fillers, which, she said, were a present from her mother.^[11]
36. [36]
    In re-examination it was drawn to her attention that she did describe to Dr Low occasional headaches.  She said, however, that migraines are different, and she had not told Dr Low about this^[12].  This point is something of a two edged sword for the plaintiff.  It does seem to demonstrate an inconsistency in reporting, but in my view it reflects well on the plaintiff’s honesty that she did not attempt to adopt the descriptor of “occasional headaches” as being a complaint to Dr Low of migraines.  

Medical evidence

37. [37]
    Dr Low is an orthopaedic surgeon.  He produced two reports, dated 6 June 2019 and 6 September 2019.  The exact nature of the distinction between the two is somewhat unclear.  There is a slight difference in history between the two reports which, according to his evidence, came about because he received some further information.  He was not able to say exactly what information or where it was from, and such was not able to be produced.  This is somewhat curious, although, at the end of the day, may not be of central importance in the overall merits of the matter.  
38. [38]
    Dr Low’s conclusion was that the plaintiff has soft tissue injuries to her neck, thoracic spine and lumbar spine.  Applying the DRE cervical category she has a 0 per cent impairment of the whole person.  There are no significant clinical findings, no muscular guarding, no documentation of neurological impairment and no significant loss of motion segment integrity.  There is no indication of impairment relating to injury or illness and no fractures.  However his opinion is that there is a degree of permanent impairment associated with the neck, probably in the range of 2 to 3 per cent, however under the strict AMA 5 criteria he cannot make this assessment and thus the figure is 0 per cent impairment.  She also has a 0 per cent impairment for the thoracic category and the lumbar category.  However in relation to pain, she has pain between her shoulder blades which can wake her at night and interfere with her enjoyment of life, particularly picking her child up.  She cannot be rehabilitated because of the pain and did not have the pain previously.  He therefore assesses her impairment at 3 per cent of the whole person in relation to the pain, referring to p 574, Chapter 18 of the AMA 5 guidelines.  Dr Low’s evidence was that this was not surprising after a “T-Bone accident”.  These can produce more drastic results from relatively low speed, because, being a sideways motion, the patient does not have the protection of the headrest in the vehicle (which tends to protect from a forwardsbackwards motion such as in a rear or front impact).
39. [39]
    Dr Low’s evidence was that enrolled nursing will be difficult for her to return to fulltime.  He refers to the demands of being constantly on her feet, bending, lifting, reaching and stretching which will likely cause her symptoms and incapacity to increase.  She may be able to nurse in a reduced capacity, but probably not in extended hours or overtime which is often required^[13].  She is thus, in his view, at a disadvantage in relation to competition on the open labour market.
40. [40]
    In cross-examination, Dr Low noted that he had seen the plaintiff on 17 May 2019.  As noted above, he was not able to fully explain the reason for the two separate reports.  The plaintiff was living in Moranbah at that stage and he saw her in his Mackay rooms.  He generally adhered to the opinions in his report.
41. [41]
    In the defendant’s case, Dr Peter Boys, orthopaedic surgeon, gave evidence.  His report is part of the trial bundle, Exhibit 1, commencing at p 26.  He examined the plaintiff on 28 June 2019 and recorded a similar history to that taken by Dr Low.  In the history, Dr Boys said that “this lady confirms that she does not experience neck pain and has unrestricted movement of the neck”.  This was something that the plaintiff gave evidence that she did not recall having said to him.  In any case, the examination by Dr Boys produced almost the same results as that performed by Dr Low.  They were only performed about one month apart.  On examination Dr Boys found the cervical spine to be normal with no evidence of cervical muscle spasms.  Her shoulder movements were free, full and painless and there was no localising tenderness in the thoracic spine or around the muscular attachments of the scapula.  Also the thoracic lumbar spine was non tender and movement is preserved.  The one difference in Dr Low’s examination was that he did find some tenderness in the paravertebral thoracic area more to the right.
42. [42]
    Dr Boys’ opinion was that the plaintiff does relate a degree of local muscle strain affecting the musculature around the right scapular and this is said to be continuous since the motor vehicle accident.  However her physical examination was normal and no diagnosable musculoskeletal injury was evident.  He said there is no quantifiable impairment evident referable to the spine or shoulder region.  His conclusion was a local soft tissue strain of the neck and upper back could be sustained in the manner described.  However her current symptoms would appear to reflect occasional physiological muscle strain of no significance.  He did not agree with Dr Low’s assessment of impairment in relation to pain and said in cross-examination that this application of the pain scale set out by Dr Low, although not unique, is somewhat contentious in the field of expert orthopaedic opinion. His view is that this is not permissible where there is no rateable impairment of the spine; but seemed to accept that Dr Low’s approach was arguable, and the difference is a matter of opinion.^[14]
43. [43]
    Dr Boys did agree that nursing, including in nursing homes and hospitals, included manual handling tasks sometimes requiring significant physical force. He agreed that the plaintiff is slight in stature and would not have the muscle mass of a larger person, but noted that nursing tasks are monitored by occupational health and safety experts to make sure practices are safe.^[15]

Submissions

44. [44]
    The defendant’s submissions emphasise the minimal nature of the plaintiff’s injury and the apparent delay in reporting it to Dr Seton.  The changes to Dr Low’s report are emphasised as is the lack of explanation for it.  There are number of changes as detailed by the defendant’s counsel, however I do not consider them of central importance.  Some relate, for example, to possible claims for domestic assistance, which have not been persisted with by the plaintiff.
45. [45]
    The defendant submits that Dr Boys’ examination of the plaintiff was unremarkable and otherwise consistent with the findings made by Dr Low.  In my view this is a correct characterisation.
46. [46]
    The defendant also submits that the plaintiff’s recorded employment history is sparse.  This is clearly correct.  As the defendant’s counsel fairly conceded, the plaintiff is not to be criticised for the feature that her duties as a single mother have impacted on her work history; nevertheless the fact is that her documented work history is limited.  The defendant submits that there is simply no evidence as to what her potential earning capacity in any role may result in, in terms of actual income, nor what any alternative roles she is capable of undertaking may amount to, and the difference, if any, between the two. 
47. [47]
    It is submitted generally that there are questions as to the plaintiff’s creditworthiness; not in the sense of deliberate dishonesty, but more that there is an inconsistency of reporting such as to raise doubts as to reliability. An example is the lack of notes as to her injury in the consultation with Dr Seton on 6 March 2018. The plaintiff said she did report it at that stage, but this apparent dispute did not emerge until the trial. The point is also made, apparently as a criticism, that the plaintiff declared her in-kind payment by way of haircuts for cleaning services^[16]; my understanding is that if this was done, it would be consistent with her obligation to declare taxable income.

48. [48]
    It is also submitted that the plaintiff was inconsistent in her description of, and the force of, the impact. Thus her evidence should be approached cautiously.
49. [49]
    In relation to quantum, the defendant first submits that the general damages would be minimal.  The use by Dr Low of Chapter 18 of the AMA Guides 5^th ed is not well accepted in the medical community, as Dr Boys said.  The defendant submits that if any ISV score was arrived at, it would be between two and four giving a range of general damages of between $2,820 and $5,640.  
50. [50]
    The defendant also submits that economic loss is very problematic.  It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss.  In respect of residual earning capacity, the onus only shifts to the defendants to show a residual earning capacity if the plaintiff proved that her capacity has been impaired.^[17]
51. [51]
    The defendant argues that there is no evidence that post accident the plaintiff has made significant attempts at returning to employment as an enrolled nurse.  Reference is made to s 55 of the Civil Liability Act 2003 and the consideration thereof in Allianz Australia Insurance Limited v McCarthy.^[18]  In that case White J set out a number of principles for such an analysis, particularly at [47]-[62].  In the course of that discussion, reference was made to Graham v Baker and Midland v State Government Insurance Commission as well as Nicholls v Curtis and Ballesteros v Chidlow where it was emphasised that s 55(3) must be read in the context of the whole section including the heading; it is said that the section only applies to an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss, which would clearly be the plaintiff’s situation.  There is also reference to the comments of Keane JA in Reardon-Smith v Allianz Australia Insurance Ltd.  In my view this commentary may be distilled to the propositions that in cases where the loss is not clear, the court must do its best in difficult and sometimes subtle cases, and, if finding there is a loss, then in attempting to quantify the same, being careful to expose the methodology, assumptions and reasoning underpinning the same.  As I have noted in another case, this is hopefully a basic tenet of judicial practice.  

52. [52]
    It is also noteworthy that in McCarthy, the President quoted at [8] from Malec v J C Hutton Pty Ltd:

“The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof.  If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent.  But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing damages.  Where proof where is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring.  Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability …”

53. [53]
    That analysis, and the analysis of Justice White, with which the majority (President McMurdo and Gotterson JA) agreed, resulted in an award of damages for future economic loss for Ms McCarthy in that case. At [9] the President said:

“In my view, this Court should make an award of damages for future economic loss to take into account the general disadvantage Ms McCarthy might suffer on the open labour market, particularly if she does not complete her degree.  True it is that she is far more likely to complete her business degree and obtain well-paid employment in which she will manage the pain to her injured foot without economic loss.  But the real possibility remains that the accident-related injury may cause economic loss, especially if, without tertiary qualifications, she becomes unemployed and is unable to take positions involving significant periods of standing or walking whilst she waits for more suitable employment.

53. [10] It is impossible to mathematically calculate the precise amount of this loss or even quantify it in terms of percentages of likelihood. But to do justice between the parties consistent with the principles extracted above from Malec, this is a case requiring a modest global award to reflect the contingencies I have discussed.  Bearing in mind that Ms McCarthy has a long working life ahead of her, and the relatively modest chance of significant economic loss, I consider she should receive $15,000 damages for future economic loss.  In a case such as this, these reasons sufficiently disclose the assumptions on which I base that award and the methodology used to arrive at it in terms of s 55(3): see Ballesteros v Chidlow & Anor and ReardonSmith v Allianz Australia Insurance Ltd.”

54. [54]
    The defendant relies generally on there being very little evidence to make an assessment to justify an award pursuant to s 55 of the Civil Liability Act.  Curiously, there is no evidence of wage rates of an assistant in nursing, enrolled nurse, clerk, administrative assistant, gym attendant, child minder, babysitter, cleaner or sales person.  There is little medical evidence of complaints of her pain.  She has other potential earning capacities as outlined above which she could undertake.  Her earning capacity as a nurse is not proven to be impaired, particularly where an employer would have workplace health and safety obligations to ensure work practices were safe for her (this does not, of course, mean she would not be at a disadvantage on the open labour market compared to an able bodied worker).
55. [55]
    The defendant relies on the lack of complaints to the GP; lack of evidence of other complaints of pain; the lack of seeking treatment; and the occasional use of over the counter medications.  The defendant thus submits that the plaintiff has failed to establish any loss and thus I should reach the same conclusion as White J in McCarthy

(who was in dissent in that case) that there should be no award for economic loss.  Submissions are also made as to past and future care; these claims were not persisted with by the plaintiff.  There is minimal dispute as to special damages.  Thus, the defendant submits that the plaintiff should receive, at best, a modest award for general damages and past and future special damages.

The plaintiffs’ submissions

56. [56]
    The plaintiff argues for an award of general damages consistent with the opinion of Dr Low, the maximum of which, as outlined above, is $5,920.  She contended initially for an award for past economic loss, although in submissions this was somewhat faintly pressed, and only to a maximum of $5,000; and in final submissions it is abandoned. Obviously the plaintiff’s child raising responsibilities – for which she is to be commended – have impacted the degree to which she has been able to exercise any earning capacity, and accordingly, any provable loss.
57. [57]
    In relation to future economic loss, reliance is placed on the opinions of Dr Low and on a number of features:

    1. (a)
       The relative chance of her resuming her nursing career had the subject collision not occurred;
    2. (b)
       The likelihood that presently, having been involved in the collision, she will be unable to realise that potential to its full extent;
    3. (c)
       She has obtained her nursing qualifications and the likelihood of her resuming nursing once her parenting commitments allowed was a high one;
    4. (d)
       The plaintiff’s relatively young age, and thus the long period of potential earnings in the future during which loss may accrue;
    5. (e)
       The undoubted physical and postural demands of work as a nurse and the fact that, even though a range of duties are available to persons such as the plaintiff with nursing qualifications, her limitations place her at a disadvantage on the competitive labour market;
    6. (f)
       Thus the plaintiff will not able to exercise her earning capacity as a nurse to its full extent, and if forced to seek employment in other less demanding fields she is at significant risk of being compensated at lower rates than a qualified nurse, despite lack of precise proof as to wage rates.
58. [58]
    Thus the submission is that given 

60. –the plaintiff’s long working future; 
61. –her age, employment background, the extent of her ongoing symptoms and functional limitations; 
62. –and in particular the undoubted physical and postural demands of work as a nurse, such that her limitations will restrict her earning capacity, and the restriction is likely to result in actual loss;

she is entitled to a global award for future economic loss of  “around” $75,000.

60. [59]
    This is supported by, firstly, referring to comparable cases. In Nichols v Curtis and QBE Insurance (Australia) Limited ^[19] the injured plaintiff was aged 18 years when a passenger involved in a single vehicle motor vehicle collision, and aged 24 years at the time of trial.  Her complaint of neck pain was somewhat delayed, but as in the present case the evidence referred to the proposition that this was not unusual and it could take “a few hours or even days”^[20] for physical symptoms to manifest. The plaintiff in that case was young, with a minimal work history, few work skills and other vulnerabilities including substance abuse problems. The court referred to relevant authorities including Ballesteros v Chidlow, Malec v J. C. Hutton Pty Ltd and the cautious approach referred to in Colmark (Australia) Pty Ltd v Hall^[21] where Pincus J.A. said

“In my opinion a cautious approach to assessments of damages in such cases - i.e. those in which an injury of no great significance is alleged to have been seriously disabling - is generally justified and should have been adopted with respect to this respondent.”

60. [60]
    Despite the plaintiff’s poor work history and other problems, Andrews SC DCJ referred to the plaintiff’s youth, desire for employment and discipline in recovering from alcohol abuse. She had a potential working life of about 40 years (not very dissimilar from the present case). His Honour assessed future economic loss in a global sum of $60,000. The injury there was more serious than the present case. The case went on appeal^[22], where the award for past economic loss was increased from zero to $8,000, and the award for future economic loss was not disturbed.
61. [61]
    By way of contrast it is submitted here that the plaintiff has compelling explanations for a gap in her work history, has shown determination in acquiring her qualification, is in an occupation where work is likely to be available and will likely suffer loss in that industry from her injury.
62. [62]
    The plaintiff also referred to Hooper v King^[23] where a 59 year old plaintiff with a gap in her work history but a motivation to return to hairdressing and significantly more serious injuries than the present case was awarded $130,000 for future economic loss (the defendant submits that the plaintiff in that case had a significant, although dated, prior earnings history, as opposed to Ms O'Brien’s position). The plaintiff here submits that she is in a similar position in terms of motivation; she has a significant financial imperative to rejoin the workforce, as a young single mother of three children with a strong desire not to be reliant on Centrelink benefits.
63. [63]
    It is submitted that I would find, on the balance of probabilities, a high likelihood of a number of relevant events:

    1. (a)
       The plaintiff will return to the workforce, at least seeking work, as soon as practicable after January 2021, especially given she will be having no more children;
    2. (b)
       The plaintiff will continue to make it her priority to seek employment as an EN;

3. (c)
   The plaintiff is likely to experience symptomatic aggravation of her right scapula pain when performing the extensive patient handling and transfers required in most nursing roles;
4. (d)
   As is opined by Dr Low, the plaintiff is likely to have to take on nursing in a reduced capacity and is unlikely to be able to participate in extended hours, or overtime hours as are often required, or at least available, in such a role.  The plaintiff’s own experiences in raising her young family and in working in the gym crèche support the likelihood of her having issues with a full time nursing career.

64. [64]
    Thus the plaintiff submits a proper approach is to assume a loss of 5 hours per week, in lost overtime or declined shifts, for 20 years. Assuming $25 per hour and discounted by 15% for contingencies, the figure is $70,762.50, rounded down to $70,000. Alternatively a global award similar to Nichols may be appropriate. Thus the plaintiff submits for a global figure of around $75,000 with $8,100 for superannuation. As to lack of evidence of pay rates, it is submitted that I would in any case infer that a qualified nurse would earn more than an unqualified data entry officer or a gym membership sales assistant.
65. [65]
    The plaintiff submits that special damages of $750 for the past and $1,500 for the future are appropriate.

Consideration

66. [66]
    As to general damages, I accept the evidence of Dr Low, whilst giving due respect to the competing opinion of Dr Boys. The interpretation of Dr Low does appear open on the words of Chapter 18 of the AMA Guides, adding up to 3% whole person impairment in relation to pain in the absence of identifiable anatomic changes; the exercise performed by specialist practitioners in doing so does seem to involve a subtle and complex assessment upon which reasonable minds may differ. However I accept that the plaintiff is in pain, and Dr Low’s opinion is a reasonably available, although contested, conclusion. Thus I accept that there is an assessable impairment relating to the plaintiff’s ongoing pain, and that an ISV of 4 is appropriate, resulting in general damages of $5,920.
67. [67]
    As to past economic loss, I accept the defendant’s submissions to the effect that in all the circumstances, no actual loss has been proven.
68. [68]
    Future economic loss is a more difficult question. It is always necessary in such cases to estimate two matters:

    1. What would have happened if not for the injury; and
    2. What will now happen.

This necessarily compels assessment of future contingencies, and in the once-and – for-all nature of awards of damages, there will often be estimates which are later proven wrong by history.^[24] This is the exercise which courts have grappled with, in Malec, McCarthy and the other cases referred to above. Further, it is a question to which there may not be one single correct answer. Generally the exercise of a discretion of this kind where there are many imponderables involved in the assessment falls in a range, which may be fairly wide.^[25]

69. [69]
    There is significant force in the defendant’s submissions (including that it is curious that no evidence of wage rates was led in the trial), however at the end of the day I find myself in a similar position to the majority in McCarthy, to the effect that a relatively modest global award is appropriate, for the following reasons.  
70. [70]
    The plaintiff struck me as an honest and generally reliable witness.  The defendant is correct to argue that at times her reliability on some points may have been questionable. Nevertheless, I accept her evidence as to 

60. –The effects of the injury on her, including her ongoing pain;
61. –Her persistence in and dedication to nursing and her declared intention to return to that field, and her motivation to do so to provide for her children; 
62. –And consequently, that in pursuit either of that physically demanding profession, which may be restricted, or in being forced into a less physically demanding but less remunerative role, economic loss in the future is a likelihood. 

69. [71]
    Having concluded that there is a likely loss, it remains to set out the methodology, assumptions and reasoning employed to quantify same.
70. [72]
    She is a qualified nurse, with an interest in returning to nursing in the future, by May of next year, when her parenting duties will allow.  She has taken steps to have no further children.  Nursing is, generally, a profession which has certain physical demands, and in which the plaintiff will be disadvantaged, both in competition for positions on the open labour market, and in her capacity for full time work.  As in McCarthy, it is impossible to mathematically calculate the precise amount of this loss or even quantify it in terms of percentages of likelihood.  However, as in McCarthy, to do justice between the parties, this is in my conclusion a case requiring a modest global award to reflect the contingencies outlined.  
71. [73]
    Purely as a comparative exercise, if for example an enrolled nurse working on the Gold Coast were to earn on average $60,000 per annum, this would equate to $47,753 nett of tax, or $918 per week. A loss of 5% of that person’s earning capacity, if resulting in actual loss, equates to $46.00 per week. Such a loss, suffered and capitalised over 15 years (by which time the plaintiff’s age may have started to contribute to a reduction in her physical capacities in any event) amounts to $25,530. A reduction of that amount by 15% to reflect the contingencies of life gives a result of $21,700. This is purely an example; there is no evidence in the case as to the precise earnings of nurses, and the 15 year period is somewhat arbitrary, but it may nevertheless give some general guidance in the assessment the court is called upon to make.
72. [74]
    Conversely the plaintiff’s calculations, set out above, also attempt to grapple with the future contingencies and give a higher result of $70,000. Clearly there is a range of possible outcomes, depending on estimation of the impact of these future contingencies.
73. [75]
    I find that the plaintiff 

60. –Has a relatively minor injury which nevertheless causes ongoing pain and some restrictions
61. –Is qualified in nursing and is interested in and motivated towards re-entering that profession as soon as, and to the extent that, her parenting duties allow
62. –Has a long working life ahead of her during which her injury will cause a degree of restriction in that necessarily somewhat physical occupation, which is likely to be causative of future loss both in terms of employability and working capacity, compared to her previous uninjured state
63. –And that less physical alternative occupations, not requiring qualifications, may be available to her but will likely be less remunerative than nursing

These facts are likely to result in a relatively modest chance of significant economic loss. I conclude that the plaintiff should receive a global sum, falling between the upper and lower range of calculations set out above, of $30,000 damages for future economic loss.  These reasons are intended to sufficiently disclose the assumptions on which I have based that award and the methodology and reasoning used to arrive at it in terms of s 55(3).

76. [76]
    The plaintiff also claimed lost future superannuation benefits at 11.3 per cent, amounting to $3,390.  I accept the plaintiff’s figures for past and future special damages, at the lower end of the estimated range.
77. [77]
    The damages are assessed as follows:

78. [78]
    There will be judgment for the plaintiff against the defendants for this amount. I will hear the parties as to costs.