Martin v Martin & Anor[2020] QDC 322

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this case the plaintiff sues for damages for personal injury arising from a motor vehicle accident occurring on 3 October 2018.  Liability is admitted.  Quantum is disputed.  Both counsel, commendably, provided detailed and helpful submissions on the afternoon of the second day of trial, even though the evidence only completed at 11am that morning.
2. [2]
   Notwithstanding the larger sum in the claim, the plaintiff ultimately sought only $174,358.  It is not a large claim.  The defendants ultimately conceded that the range which the court could properly award for damages, even on its case, was between $25,000 and $41,000.  Most of the difference related to the assessment for future economic loss.  The difference between the parties narrows further once a few simple points are determined.  Bearing in mind the limited issues and the comprehensive nature of the submissions, I consider it in the interests of justice to deliver a judgment orally, rather than to reserve the decision, which given the time of year would inevitably have been significantly delayed. 

The Witnesses

3. [3]
   The only lay witnesses were the plaintiff and her mother.  Both presented as witnesses attempting to be truthful.  Ms Martin was cross-examined about a number of incidents which were directed at impugning the authenticity of her complaints as to pain from her neck and lower back injuries.  Not only was I satisfied with her explanations, but seemingly, so were the defendants.  No submission was made that I should reject either witness as untruthful.  The defendant’s counsel disavowed any such suggestion, which I think was a proper concession on the evidence. 

4. [4]
   However, there was a considerable body of contemporaneous medical records which appeared to tell a different story from that told by both witnesses in some key respects.  There were also inconsistencies, particularly in Ms Martin’s reported symptoms and mental state and ambitions, which she reported to the OTs and doctors who examined her from time to time. 

5. [5]
   Mr Cross submitted in broad terms I would not be too concerned about inconsistencies and dates and details for a witness who is only 18 now and was 16 when the accident happened.  There is some merit in that, but, on the other hand, contemporaneous written records of what was said on important occasions such as being seen by doctors and occupational therapists in legal proceedings carries some weight.  Ultimately the resolution of these issues must be done on a case-by-case basis. 

6. [6]
   Apart from the two lay witnesses, the evidence was given by one psychiatrist, one orthopaedic surgeon, one neurologist and two occupational therapists.  I should say that in broad terms, meaning no disrespect to anybody, I found the defendants’ expert witnesses’ evidence to be more closely reasoned and persuasive, both in writing and in cross-examination. 

7. [7]
   All the plaintiff’s experts had not seen her for at least a year before the trial, possibly more.  Further, I thought Mr Ng’s determined adherence to his opinion after reading Mr Fraser’s report, to reflect a determined pessimism about Ms Martin’s prospects which was difficult to justify by credible reasoning.  Ultimately, however, these differences did not loom large in the resolution of the proceedings. 

Background 

8. [8]
   Mr Cross summarised the background in his opening as follows:

1. (i)
   The plaintiff was born on 30 August 2002 and is currently eighteen years of age.

2. (ii)
   The plaintiff was involved in two motor vehicle accidents, the first of which occurred on 1 October 2018, the second two days later on 3 October 2018. The trial is in regard to the second accident of 3 October 2018.

3. (iii)
   On 3 October 2018 the plaintiff was a passenger in a vehicle driven by Mellisha Martin, the first defendant. The first defendant in the Mitsubishi was travelling along Station Road at Burpengary. A Ford Focus hatchback was stationary on Station Road waiting for a vehicle in front to turn into a driveway on Station Road. The first defendant in the Mitsubishi failed to stop behind the Ford and collided with the rear of the Ford. It is alleged as a consequence of that collision the plaintiff suffered personal injury, other loss and damage.

4. (iv)
   Photographs of the damage to the vehicle were tendered as were photographs from the previous accident on 1 October 2018.

5. (v)
   The defendants in their Defence of the First and Second Defendants as Joint Defendants (hereafter “the Defence”) admit the collision was occasioned by the negligence of the first defendant.

6. (vi)
   Hence trial is a quantum only one.

Relevance of the First Accident

9. [9]
   One of the issues which arose in this case was whether the first accident caused any of the physical injuries which the plaintiff complained of in the case.  It is convenient to deal with that now.  The photographic evidence showed that the first accident involved modest impacts to each side of the vehicle which was being driven on that occasion.  The plaintiff got out of the car and assisted.  Her treatment was modest and involved going to her GP only.  I am not persuaded that any of the injuries she complained about in these proceedings were the same as those which were caused by the first accident. 

10. [10]
    In reaching that conclusion, I am conscious that Dr Todman did give evidence that a side impact could cause neck injuries and that the onset of such injuries could be delayed.  But on all the evidence about the first accident I am not persuaded it was the cause of any of the injuries or pain which were the subject of the trial. 

11. [11]
    The photographs did not indicate that the impacts to either side of the car were significant and there was no evidence to the contrary. 

12. [12]
    This is not so clearly the case with the psychiatric injury.  That is, it is not so clearly the case the first accident did not have something to do with it.  In that regard Dr Chau accepted Ms Martin’s own assessment that the cause of her range of psychological difficulties identified by Dr Chau was 60% attributable to the second accident, 30% to the first accident and 10% to her cyst problems from early 2019.

13. [13]
    A good part of the psychological injury identified by Dr Chau related to anxiety about and consequent limitations in capacity and ability to drive, or even cross the road, and the impact that had on some relationships. 

14. [14]
    The first accident was a lesser impact but involved an impact at high speed on the freeway while Ms Martin was driving, only seven hours into her 100 hours as a learner.  It would have been frightening and would have, in my view, had a very big impact on the anxiety she expressed about driving, more so than the second accident, where she was not the driver and had no responsibility for what occurred. 

15. [15]
    This is relevant to the PIRS analysis where travel and social functioning are at category 2 and 3 in Dr Chau’s report respectively.  More of that relates, in my opinion, to the first than the second accident.  The point is largely moot, however.  Dr Chau did not examine Ms Martin again after 29 August 2019, well over a year before the trial.  Since that time, thankfully, Ms Martin has effectively completed her hundred hours, got her P plates and drives alone, though she prefers her mother to be present.  She crosses the road alone. 

16. [16]
    This is a completely different picture to that drawn for Dr Chau, so much so as to make her report of little assistance to the extent it relies on the dramatic limitations of driving and road experience which were reported at that time.  Ms Martin, to her credit, has largely conquered her driving anxiety, and with further life experience and driving experience is likely to finish the job. 

Events Before the First Accident

17. [17]
    It’s worth recording here also my finding that before the accident Ms Martin was otherwise in good personal and psychological health.  She had a slightly peripatetic existence in primary school, but had stabilised schooling from year 7 and was in year 10 when the accidents happened.  The following is important to note.

18. [18]
    First, it is clear she was a very active and enthusiastic student of dancing before the accident.  She was, frankly, obsessed with it and attended classes nearly every weekday for some years before the accident.  Her ambition was to have her own dance studio. 

19. [19]
    I do not think that it is right to assume that that ambition would have reached fruition in adulthood.  Fifteen-year-old enthusiasms pass with understandable regularity.  It should be recognised, however, that involvement with dancing was very important to Ms Martin, and presumably to the way she saw herself, and not something she would easily have given up. 

20. [20]
    Although there is some inconsistency in her evidence about the extent to which she went back to dancing in 2019, and her evidence in court tended to, I thought, at times underplay the extent she did so in 2019, there was clearly a big change in her participation in 2019 to a very reduced involvement (compared to 2018) which petered out at the end of 2019. 

21. [21]
    I do not think that would have happened unless she was prevented from continuing to participate by pain and injury.  The cause of that petering out is another matter.  But it is a powerful indicator that physical problems intervened from October 2018, which reduced her ability significantly.  There is no other reason why her love of dance should have reduced so suddenly and so completely by the end of the next year. 

22. [22]
    Second, there is her academic performance.  With respect to her it is true to say that her academic performance was modest in year 10 and continued to be so in year 11, and given that she has not taken ATAR subjects, or many ATAR subjects, even if she does well in her exams, the result will be, respectfully, at best, a modest outcome for year 12.  Given that she is not doing many or any ATAR subjects (and if she is doing some, I apologise for understating it) she will not be getting an ATAR score. That rules out, at least at this stage in her life, a lot of perhaps more lucrative work employment opportunities. 

23. [23]
    Third, there is her work history.  Even before the accident, at the age of 15, she had a job at McDonald’s.  She was engaged in work outside the home in that year, in circumstances where she clearly had begun work, almost at the first moment she was legally able to do so.  I will come back to that later. 

24. [24]
    Having given that outline, it is convenient to the structure of this judgment to identify what the issues are that arise in the trial.  It is accepted, it seems, by the defendants, that she now has some neck and back pain which restrict her activities and causes her headaches and pain.  To the extent that was not formally conceded, I consider it is plainly so. 

25. [25]
    The issues that arise in that circumstance, however, are these.  First, although she suffers from neck and lower back pain, the question is whether the lower back pain was caused by the accident.  Second, what is the extent of the general damages, depending on whether back pain is in or out and depending on the other considerations that arose in that regard.  Third, what is the extent of her past economic loss.  And fourth – and this is the main item – what is the proper measure of her future economic loss. 

Cause of the lower back pain 

26. [26]
    If I accept that Ms Martin has chronic lower back pain which affects her work and leisure, as I do accept, why would I not infer the cause of that pain was the second accident?  There are two other causes of which I think can be excluded.  The first is the acrobatic accident in February 2017.  The defendants no longer rely on that as a cause and that concession is rightly made, in my opinion, on the evidence.  The second is the first car accident.  As I understood it, the defendants did not positively contend that this was the cause of the lower back pain, consistent with their primary theory as to the timing of the onset of the lower back pain.  In any event, given the character of the first accident which I have already described and made findings about, it seems unlikely it could have been the cause of trauma to the lower back and no one suggested to me that it was. 

27. [27]
    No other cause has suggested themselves for the lower back pain.  So why would one not be persuaded it was caused by the second accident?  The argument as to why not is helpfully set out in the submissions of Mr Holmes for the defendants at paragraphs 74 to 78.  He states there: 

74. The only objective evidence of reporting of symptoms of low back pain is simply the reference in the physiotherapy records.  There was no contemporaneous reporting of low back symptoms to Dr Lassig and it was not recorded as a symptom or sign in the Motor Accident Insurance Commission certificate prepared by Dr Lassig on 15 November 2018.
75. Your Honour should be careful in accepting the Plaintiff’s evidence with respect to the onset of symptoms.  The Plaintiff’s evidence ranged from that she always had difficulty; to it started to be noticeable a month later to a week and a half later.  The Plaintiff further said that the neck pain was the worst and the back pain not as bad as the neck at the time but subsequently said that when asked to compare the low back and neck after the accident which was the most significant, she responded that they were both the same, just very painful.
76. The Plaintiff rated her low back pain one week after the accident at 5 out of 10.  A month after the accident it was 8 or 7 out of 10.  At trial she rated her pain as 8 out of 10.  The Plaintiff gave evidence that sitting for prolonged periods aggravated her low back pain.
77. The Plaintiff attended the entirety of the trial.  Your Honour would have been able to observe the Plaintiff sitting for prolonged periods at the back of the court without any apparent discomfort throughout the course of the trial.  Indeed, the Plaintiff is seeking employment as a receptionist in her gap year because she considered such a job would be helpful for her low back pain.
78. It was the evidence of Dr Todman and Dr Lassig that the later in time the reports of complaint of a symptom, the less likely it is to be linked to the subject event.

28. [28]
    I should say, I was not persuaded by paragraph 77.  I do not think a proper foundation was made for the assertion that I should infer from Ms Martin’s presentation in court that she did not have problems with her lower back. 

29. [29]
    Mr Holmes’ argument against a causation conclusion can be further developed, however.  In the period between the accident and completing physiotherapy treatment in March 2019, Ms Martin was seeing Dr Lassig, her GP, and her physio regularly.  In fact, she saw Dr Lassig 15 times and saw her physio 13 times. 

30. [30]
    In all that time, first, she never mentioned lower back pain to Dr Lassig.  Second, she first mentioned lower back pain to the physio on 13 December 2018, more than two months after the accident.  Third, however, the very next week she said the lumbar spine was better and thereafter there was no mention of the lumbar spine for the next three months of treatment by the physio.  Fourth, there were references to thoracic and lower thoracic in the physio’s notes, but I think it right to rely on a physio to be able to accurately draw the distinction properly in her notes between a lumbar spine problem, Lx, and a thoracic spine problem, Tx, especially where there had already been a complaint about lower back pain, and where, in any event, the reference to the thoracic spine is to central low and not the lower thoracic spine. 

31. [31]
    On the other hand, this evidence must be reconciled with Ms Martin’s evidence, summarised in Mr Holmes’ submissions.  Ms Martin’s evidence has two difficulties faced with this contemporaneous record by health professionals.  It was inconsistent in a key respect.  She said that the pain in her lower back started to be noticeable after a month, then she said a week, then she said immediately.  That is, it was inconsistent internally. 

32. [32]
    It was also inconsistent with the reports to health professionals, in that she said she suffered at trial quite severe pain from one month out, up to seven or eight out of ten, without reporting to this.  Further, to add to the complexity, there is the complaint at the hospital on the day of the accident of right hip pain radiating down the leg.  I think it is open to me to note that this is at least consistent with sciatic nerve pain.  That is, pain caused by lower back conditions.  There is therefore at least some evidence consistent with trauma of some kind to the lower back at that time, though strangely no evidence about this was led in the matter, other than the hospital records. 

33. [33]
    Both Dr Todman and Dr Lassig gave evidence that the later in time symptoms emerged after the accident in the lower back the less likely it was to be caused by the accident.  There are two questions to be resolved here.  First, when did the lower back symptoms of sufficient severity to indicate a material injury first emerge.  And second, given that time of manifestation, can I be satisfied on the balance of probabilities that the second accident was the cause.  The two issues tend to merge in practice. 

34. [34]
    Focusing on the first, at least from the start, at the beginning of the analysis, Mr Cross urged on me that Ms Martin’s symptoms might have been present as she said, but suppressed by Endone for two months.  I reject that possibility.  The evidence did not support she had ongoing Endone use, which consistent with Dr Fitzpatrick’s evidence, could have masked her back symptoms for two months.  It is also inconsistent with Ms Martin’s own evidence about her symptoms. 

35. [35]
    Mr Cross also submitted that Ms Martin, being 16 to 18 at the time of these events, could have been mistaken about the timing of the onset of more severe symptoms.  The problem with that is that if I accept that is so, then the onset of the back symptoms is pushed forward in time from the accident to when?  In that case the only evidence which I could rely on is the evidence of Dr Lassig and the physio. 

36. [36]
    Mr Cross also submitted that Ms Martin might well have been feeling lower back symptoms, but focused first on the neck and headaches, and then presumably on her problems with the cysts.  That is possible and consistent with ordinary experience.  It is inconsistent with the magnitude of symptoms described by Ms Martin, but that aspect of it, I suppose, could be ascribed to faulty recollection of that detail, while accepting there was some symptoms present from early on.  On that basis, the conclusion would be that there had been symptoms, though not as serious as those other problems, which became serious by early to mid-2019.  This would be consistent with some of the behaviours observed by Ms Chalbatzis, regardless of what she was told, which were consistent with lower back pain.  This would be generally consistent with Ms Martin’s mother’s evidence as well. 

37. [37]
    In resolving this question I can consider whether there is any other explanation of the ultimate onset of significant lower back pain by mid-2019.  I have already rejected the February 2017 and first accident as causes.  Is there any other? 

38. [38]
    It was suggested it might have been related to serious ovarian cyst difficulties which emerged in early 2019.  There is no doubt that this event is quite a serious complication in the evolution of the narrative around the pain.  It was painful.  It required hospitalisation and surgery.  There was no evidence that this kind of problem could cause lower back pain.  While this event, in my view, clearly contributed to the failure of the dance training and to Ms Martin’s low spirits, I cannot see any basis on the evidence to conclude that it caused or contributed to her lower back pain. 

39. [39]
    The defendants did not point to any other cause for the lower back pain.  Does that mean, despite my misgivings, I should infer causation?  Two matters must be recalled.  First, it is for the plaintiff to establish causation on the balance of probabilities.  Second, the mere fact the defendant cannot point to an alternative cause does not, of itself, lead to the conclusion the cause posited by the plaintiff must be the cause.  There is an analogy here with the directions given to juries on motive to lie, emphasising again no one’s suggesting Ms Martin is lying. 

40. [40]
    In short, the fact that a defendant cannot identify motive to lie in a complainant does not automatically mean there is not one.  There could be motives unknown and unknowable to the defendant, or indeed the prosecution.  See R v Bevinetto [2019] 2 Qd R 320 at paragraph 50 and following. 

41. [41]
    There is an analogy with the position in this case, as there is with many jury directions in criminal cases, which civil lawyers would do well to become familiar with.  Just because the defendants cannot show a cause does not mean there was not another cause of which they do not know. 

42. [42]
    Lower back injuries are complex.  Their pain pathology even more so.  Ms Martin might have had a slip, an accident, an injury, which event even to her seemed not material compared to her other problems.  Perhaps all the more likely where she was stiff and sore in any event with her neck and upper back and with problems with her stomach. 

43. [43]
    Ultimately, though, even bearing all that in mind, I am satisfied on the balance of probabilities the lower back injury was caused in the legal sense by the second car accident.  There is the report on the day of the injury.  There is extensive pain medication thereafter.  Then there were much more serious injuries and pain to deal with.  I do not think Ms Martin’s recollection of the relative significance of the back pain, through to early 2019, is accurate, but it must be borne in mind her age and her undoubted distress about the position by mid-2019 as affecting her capacity, fairly and accurately, to recall what seems likely to me to have been the emergence as a problem of a fact which was up to that time in the background. 

44. [44]
    While others might take a different view, I also allowed for optimism from time to time that periods of less discomfort or pain represented a permanent state and that dearly held ambitions (like dancing) remained possible.  Such optimism should be encouraged.  Not that that is a basis I decided it on. 

45. [45]
    Finally, I thought Ms Martin generally an honest witness and accept her explanations of her current situation.  Although the matter was clearly debatable, I am satisfied on the balance of possibilities that the lower back injury was caused by the second accident. 

Extent of Pain and Suffering 

46. [46]
    Having reached that point, I am satisfied her level of pain and injury was largely as presented to Dr Todman and Dr Fitzpatrick.  I have not overlooked the submissions to the contrary from the defendants, which are points properly made.  That includes reports to the physio in March 2019 she was doing well, and Ms Martin’s again exaggerated evidence at trial about the extent to which she was able to participate in dance classes through to December 2019. 

47. [47]
    However, even on the evidence she gave contemporaneously about her involvement in dance in 2019, I am satisfied that the combined effect of her back and neck injuries were such as to significantly restrain her previous involvement, such that it petered out by the end of the year.  There is no doubt her cysts would have contributed to the difficulties, but I had no good basis to believe that once treated they would have continued to affect her ability to dance, and if she had such ability, I am confident she would have taken advantage of it. 

Psychiatric Injury

48. [48]
    The premises of Dr Chau’s report have been made good as to the kind of relevant physical injury which underpins the psychological condition she diagnosed as at 29 August 2019.  However, as Dr Chau conceded, she could not opine as to the present situation without a further consultation and assessment.  This is of acute significance where Ms Martin is so young and inevitably developing and changing quickly. 

49. [49]
    That is demonstrated by the fact that since 2019 Ms Martin has conquered to a very substantial degree her fear of driving and of traffic and of crossing the road.  I am unpersuaded her remaining anxieties take her outside the normal range of young drivers, many of whom share the same anxieties.  She should be encouraged to continue with that growth in her confidence and maturity. 

50. [50]
    I should add that in the witness box Ms Martin presented as a capable and stable young woman and her determination to pursue work opportunities reflects that.  It is inevitable that she feels down on occasions because of the effect of her injuries, but that is different from presenting now well after the report that was last provided as having a psychiatric impairment.  I strongly suspect, with sustained counselling and support, that is, professional support, she is likely to be able to function as well as anyone.  And it would be ridiculous for a young person of her age to see the world any other way. 

51. [51]
    In any event, it is difficult to put any weight on Dr Chau’s report in this case, given the matters I have identified and I am not satisfied on the balance of probabilities she presently suffers a psychiatric impairment.  However, as the defendants have conceded a PIRS rating of two, I adopt that figure. 

General Damages

52. [52]
    I refer to the summary of the case of Allwood in paragraph 95 of Mr Holmes’ submissions where he states as follows:

95. As there are multiple injuries, the question needs to be considered of how to address the overall assessment in terms of general damages.  Being multiple injuries arising from the one incident, this engages sections 3 and 4 of Schedule 4 of the Civil Liability Regulations 2014.  Justice McMeekin set out the principles in Allwood v Wilson & Anor [2011] QSC 180.  The principles can be summarised as follows:

1. (a)
   the dominant injury is to be determined having regard to the range of ISV’s applicable to the injury;

2. (b)
   determine ISV within the range of ISV’s provided for the injury and determine whether the maximum ISV in the range adequately reflects the adverse impact of all the injuries (“the maximum dominant ISV”);

3. (c)
   if the maximum dominant ISV is not sufficient, then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV;

4. (d)
   in arriving at the appropriate ISV, the court is to bear in mind that the effects of multiple injuries commonly overlap;

5. (e)
   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 can be considered;

6. (f)
   the overriding purpose of the ISV’s prescribed – to reflect the level of adverse impact of the injury on the injured person;

7. (g)
   the court is guided by the provisions of Schedule 4 but is not necessarily limited to those factors and a court can have regard to other matters relevant to the particular case e.g., age, insight, life expectancy, pain, suffering and loss of amenity;

8. (h)
   an important consideration is the extent of the whole person impairment.

53. [53]
    Based on the analysis in that case I find as follows: 

54. [54]
    First, I consider that the dominant injury to be the neck injury.  That has been the ongoing problem from the start.  It is likely the cause of the headaches which impact most strongly on daily life and activities.  That is an item 88 under the Civil Liability Regulation injury category list.  I considered item 89, but this injury is more serious than that item suggests.  I struggle with the conclusion this injury is permanent, even though Dr Todman gave evidence that for a small percentage of young people soft tissue neck and upper back injuries do not fully recover.  Dr Todman did not address the place of consistent and full spectrum physio exercise and so on in that context. 

55. [55]
    Although the evidence before me supports the conclusion the injury will cause moderate impairment, and I think on the evidence I have to reach that conclusion, I can think of nothing more damaging to Ms Martin’s future than for her to accept that position.  This is a soft-tissue injury.  She was fit and strong and a young woman when the various blows of late 2018 and early 2019 fell on her.  She has gone nowhere near exhausting all the options for curing soft-tissue injury problems.  There’s physio, Pilates, focused weight training, general exercise, anti-inflammatory treatments and so on. 

56. [56]
    I am, of course, not a medical expert, but I would urge her, separate from the reasoning in this judgment, to reject any suggestion that this is permanent and to invest as much time as she can in long-term treatment, harnessing the optimism which she has expressed from time to time in the past. 

57. [57]
    Second, in my judgment the headaches, which are relatively frequent, make this more serious than the less serious case in item 88.  In my judgment it is about a seven, perhaps an eight. 

58. [58]
    Third, taking into account the effect of the lower back injury, which although it overlaps in some respects with the consequences of a neck injury, can have a separate and distinct impact to the neck injury, particularly on capacity to perform at work.  I think an ISV should increase materially for that, taking into account the other injuries as well. 

59. [59]
    Allowing for those injuries, I consider that an ISV of 10 properly accounts for all the injuries and impairment, bearing in mind the principles in paragraph 95 of Mr Holmes’ outline and the findings I have already made, particularly as to the very limited character of the psychological injury as of now, which produces a general damages sum of $16,650. 

Earning Capacity 

60. [60]
    In paragraphs 99 to 101 Mr Holmes states the relevant principles as follows: 

99. Damages for both past loss and future loss are allowed to an injured person “because the diminution of his earning capacity is or may be productive of financial loss.”^[1] As McHugh J said in Medlin v The State Government Insurance Commission, “the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income.”^[2]
100. Although it is loss of earning capacity and not loss of earnings that is the subject of compensation, the rate of wages being earned and the rate of wage likely to be earned in the future afford a basis for assessing compensation for the loss of earning capacity. Expectation of working life is also an element in that assessment.^[3]
101. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position he or she would have been in if injury had not been sustained. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is one about the likely course of future events and evidence of past events does not always provide certain guidance about the future.^[4]

Past Economic Loss

61. [61]
    Mr Holmes’ argument in this regard was set out in paragraphs 102 to 104, where he states: 

102. The objective evidence is that the Plaintiff has suffered very little loss in terms of the time between the date of the accident and the present.  The evidence is clear that the Plaintiff increased her hours post-accident, including very soon after the accident during the Christmas holiday period whilst she was undertaking physiotherapy treatment.

103. Ex. 2, tendered by the Plaintiff, purports to give a summary of time off work and loss of income.  The total of that schedule is $868.68.

104. Interest is presently allowable at a rate of 0.45 per cent per annum on that sum for say two years giving a sum of $7.82.

62. [62]
    Respectfully, that submission does not, in my view, give effect to the principles which he so clearly outlined just before.  I explain as follows:  one thing is clear from the compelling and precise evidence of Ms Chalbatzis, her direct supervisor at McDonald’s for the most difficult six months from January to June 2019.  And that is that Ms Martin, even with her injuries and the cyst problems, was a “fantastic worker”.  This was reflected in her promotion to trainer in that time and in Ms Chalbatzis’ obvious confidence in her to handle any area of work she was asked to deal with, so long as she was not suffering pain. 
63. [63]
    So the question here is not a comparison of before and after the accident, but, as the authorities direct attention to, her capacity before and after the accident and the measure of the loss of that capacity resulting from the accident.  If a person is a willing and hard worker who works 12 hours a day, four hours overtime a day, but by reason of an injury can only manage 10 hours a day, that is a loss of two hours a day, even if other people with less diligence and determination only ever work eight hours a day. 

64. [64]
    I know this cannot be pressed too far on these facts.  Ms Martin missed quite a bit of work because of her cyst problems when she had surgery and the pain from that reasonably would have been a factor from time to time.  Doing the best I can, however, and allowing for the two weeks she had off work, I do not think the comparison, as I have said, is between her hours before and after, but the hours she could work after, compared to the hours she could have worked.  That is, her reduced work capacity.  I think as an estimate of loss measured at two-thirds of the amount represented by the loss of one shift per week is a fair and conservative measure of the impact on her work capacity.  That is, what she would have been doing without the injury at that time. 

65. [65]
    Adopting, with agreement of counsel, the average hourly rate of $12.75, that is, a rough average of $12.50, plus 25 per cent for the promotion, the calculation based on Mr Cross’ paragraph 9 on page 42 is two-thirds of 92, times six, times 12.75, rounded to the nearest hundred dollars, making a small allowance for interest at $5000 even.  The loss of super benefits is 9.5 per cent of that, which gives a total loss on past earnings and super of $5475. 

Future Economic Loss

66. [66]
    This area was hotly contested.  Frankly, I found much of the evidence unhelpful.  The main problem with it was that it seemed to adopt specific assumptions about what jobs Ms Martin could have obtained, as compared to specific jobs she could no longer obtain.  For someone who’s only 18 years old, that seems like a pointlessly precise and speculative undertaking. 

67. [67]
    The serious analysis of the possibility of Ms Martin becoming an employee of the Australian Border Force was, in my respectful view, a waste of time.  Not because she might not one day aspire to and, who knows, achieve that objective, but because of the extraordinary improbability that a passing interest based on a TV show for a 17 year old will be enduring, and because of the lack of proper investigation of exactly what was involved in that role. 

68. [68]
    The time dedicated to that was, in my view, a waste of time, the court’s resources and the parties’ resources, and I would not expect any costs for that pointless activity to be set against any damages payable to Ms Martin. 

69. [69]
    I am also not persuaded that some pre-existing vulnerability is demonstrated either.  Ms Martin is 18.  She had come out of a very difficult year in year 11 and another difficult year in year 12, for reasons which every young woman or man who have graduated in year 12 this year would be able to talk about until everyone’s bored of hearing it. 

70. [70]
    Despite that, she has shown and continues to show good work attitudes.  Nothing is more certain to help her succeed in life than persistence and determination at doing meaningful work.  She has that ability.  I hope she does not doubt that she has that ability, despite the things that were said in this trial.  I believe she still has it in her. 

71. [71]
    Really, even allowing for Mr Fraser’s report, I think the correct analysis to be conducted by analogy with the past economic loss.  That is, she will be a diligent worker, but on the current position her neck and back will clip her wings somewhat in fully realising that inherent capacity. 

72. [72]
    I adopt the common sense observations of Justice McMeekin in Armstrong v Smith [2012] QSC 334.  In that case: 

[1] The plaintiff, Cory Armstrong, claims damages for personal injuries suffered on 18 November 2008. Mr Armstrong was a passenger in a car. The car rolled. His left hand was crushed.

[2] The second defendant admits liability. I am required to assess the quantum of damages.

[3] Mr Armstrong was born on 31 May 1992. He was 16 years old when injured and is now 20 years.

[4] The assessment is governed by the provisions of the Civil Liability Act 2003 (“the CLA”) and the Civil Liability Regulation 2003 (“the Regulations”).

73. [73]
    His Honour went on in describing the consequences of the injuries. 

[15] I had the opportunity to observe the plaintiff’s hand at the outset of the trial. The amputation of the middle finger and deformity to the left ring finger were obvious. The plaintiff demonstrated the range of movement he had available to him. It was, as he said, fixed in a hook like position.

[16] The injuries are of particular significance to the plaintiff as he is left hand dominant.

[17] The injury has impacted on the plaintiff in various ways. He says that his performance in his grade 11 final exams was affected;  he missed out on the chance to obtain part-time casual work over the school holidays between grades 11 and 12; he was precluded from working in the school workshop for one and a half terms; he missed out on the opportunity to undertake work experience during the first term of grade 12; when he was eventually able to undertake work experience he had difficulty with a variety of tasks which involved lifting heavy objects or manual dexterity; he missed out on obtaining two certificates which he said would have been credited towards his Certificate I in Engineering because he had been unable to work in the school workshop at the start of grade 12; he could not immediately commence looking for an apprenticeship after completing grade 12 because he was awaiting surgery on his injured hand; and when he did obtain work eventually he found that his left hand fatigued easily.

74. [74]
    His Honour then concluded, relevantly, in respect of future economic loss, somewhat similarly to mine, that hypothetical counterfactuals for people who are in year 11 or year 12 or just starting their lives are not particularly helpful.  His Honour concluded further in paragraphs 65 to 67: 

[65] In summary I conclude that the plaintiff may have the capacity to obtain an apprenticeship and qualify as an industrial electrician. He has not established that that avenue of work is completely foreclosed to him. Nor has he shown that he would have obtained an apprenticeship as a matter of a certainty by now if his injury had not occurred. However he certainly has a number of barriers that he would need to overcome to gain entry to the trade and even if he did overcome those barriers he would be left with a left hand that fatigued more easily and that was somewhat less dexterous than a dominant hand needs to be or ought to be. His disability would cause employers to have concerns as to his capacities. He would probably have difficulties in obtaining and retaining employment. He would need a sympathetic employer or, if he ran his own business, would be slower and so less profitable in pursuing his trade.

[66] The assessment of damages for plaintiffs injured when they are still at school always presents significant difficulties. Their lives could have taken various paths and the impact of an injury such as this is difficult to assess.

[67] In my view it is appropriate that a global sum be assessed. I bear in mind the requirements of s 55(2) of the CLA: “The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.”

75. [75]
    I agree with his Honour’s general observations in paragraph 66 about assessing future economic loss for very young people.  I also note the caution which should attend in assuming familial or sibling outcomes predict the future, which were identified by the case referred to by Mr Holmes.^[5]

76. [76]
    Ironically, the more successful Ms Martin is in her future work life, the less likely I think it is she will be materially restricted by her particular injuries, if indeed they do persist, which as I have said, I do not think she should by any means accept is going to be the case. 

77. [77]
    In a white-collar role ergonomic desks, flexible working conditions and so on are likely to restrict her less than if she is restricted to the lower paid roles which require some physical stamina. 

78. [78]
    Both occupational therapists ultimately accepted she was suited for sedentary to light work in the US Department of Labor scale.  In that work, on the assumption her injuries and their consequences for lower back and neck pain and headaches persist, then her diligence is likely to restrain somewhat in the way it has been in the past. 

79. [79]
    Applying s. 55 of the Civil Liability Act, I am satisfied Ms Martin will suffer loss, having regard to her age.  My assumptions in that regard are that, first, she will continue with her demonstrated diligence.  Second, she will continue to work in areas where neck and back pain are likely to reduce to some degree her capacity to earn to the extent she otherwise would have done.  Third, that her income in these areas will be modest, although I emphasise that Ms Martin’s future remains a matter for her.  That is not a prediction.  And fourth, she will improve over time in her capacity to manage the impact of these injuries on her work. 

80. [80]
    Doing the best I can to turn that into a figure which represents the capital value of her loss capacity, I adopt this methodology:  I am looking at what the past tells me about her loss over the nearly two years she was working at McDonald’s, adjusted already as I have said for the cysts issue, and then adjusting that for the current value of that future missed income stream and for the vicissitudes of life. 

81. [81]
    Her losses were about $2750 a year, including superannuation.  Taking the various matters I have said into account, on the above basis I allow $75,000, pursuant to s. 55, doing my best to give effect to the statutory guidance set out there for future economic loss. 

Past and Future Special Damages

82. [82]
    I allow the amounts claimed in Mr Cross’ outline for these amounts, where he articulates them as follows:

Past special damages (not disputed)

1. (i)
   The HIC refund is the sum of $983.20.
2. (ii)
   Pharmaceutical expenses in the sum of $93.85.
3. (iii)
   Travel expenses in the sum of $221.10.
4. (iv)
   Interest on the sum of $314.95 at the rate of 0.75% for a period of 2.1 years, being the sum of $9.90.
5. (v)
   The plaintiff claims a total of past special damages in the amount of $1,298.15.    

Future specials

1. (i)
   Future medication expenses in the sum of $240.00.
2. (ii)
   Future physiotherapy expenses in the sum of $1,250.00.
3. (iii)
   Travel expenses in the sum of $200.00.
4. (iv)
   The plaintiff claims a total of future special damages in the amount of $1,690.00.

83. [83]
    In the result, I award damages in the amount of $100,113.
84. [84]
    I order that the second defendant pay the plaintiff’s costs of the proceedings on a standard basis, up to and including the end of 30 November 2020, and the balance of the costs incurred after that date on an indemnity basis.