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O'Connor v Wright[2021] QDC 173

DISTRICT COURT OF QUEENSLAND

CITATION:

O'Connor v Wright [2021] QDC 173

PARTIES:

JESSICA DAWN O'CONNOR

(Plaintiff)

v

LAWRENCE PIETER WRIGHT

(First Defendant)

AAI LIMITED T/A SUNCORP INSURANCE

(ABN 48 005 297 807)

(Second Defendant)

FILE NO:

BD 2336 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

12 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

20 – 21 May 2021

JUDGE:

Moynihan QC DCJ

ORDER:

1)  There will be judgment for the Plaintiff in the sum of $ 30,880.00.

2)  I will hear from counsel as to costs.

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – ASSESSMENT OF LOSS OF EARNING CAPACITY – where the plaintiff was injured in a car accident – where the plaintiff sustained soft tissue injury to her cervical spine and thoracolumbar spine – where the plaintiff had a pre-existing thoracolumbar scoliosis – where liability admitted – where quantum of damages is to be assessed.

LEGISLATION:

Civil Liability Act 2003 (Qld)

Civil Liability Regulation 2014 (Qld)

CASES:

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Allwood v Wilson & Anor [2011] QSC 180

Graham v Baker (1961) 106 CLR 304

Medlin v State Government Insurance Commission (1995) 182 CLR 1

COUNSEL:

G A Hampson for the Plaintiff

E J Williams for the 1st & 2nd Defendant

SOLICITORS:

O'Donnell Legal for the Plaintiff

Jensen McConaghy Lawyers for the 1st & 2nd Defendant

Introduction

  1. [1]
    On 5 January 2018, Jessica O'Connor (the Plaintiff) was driving her motor vehicle north on the Bruce Highway at Palmview. She had slowed her vehicle nearly to a stop when Lawrence Wright (the first Defendant), who was driving his vehicle in the same direction at about 70 kilometres an hour, changed lanes and collided with the rear of the Plaintiff’s vehicle, forcing it into another vehicle in front. The Plaintiff’s vehicle was extensively damaged in the collision.
  2. [2]
    The Plaintiff sustained a soft tissue injury to her cervical spine and to her thoracolumbar spine, aggravating a pre-existing thoracolumbar scoliosis.
  3. [3]
    The Plaintiff claims that the first Defendant was negligent, and she initially sought damages in the amount of $213,077.44 plus interest. At the conclusion of the trial the Plaintiff amended the amount claimed to $99,650.00 as follows:

Head of Damage

Amount Claimed

General Damages

$ 16,150.00

Past Special Damages (including interest to date)

$ 1,500.00

Future expenses

$ 2,000.00

Future economic loss

$ 80,000.00

TOTAL

$ 99,650.00

  1. [4]
    The first Defendant and his insurer AAI Limited trading as Suncorp Insurance (the second Defendant) admit liability.
  2. [5]
    Damages are to be assessed under the Civil Liability Act 2003 (Qld) (the Act) and the Civil Liability Regulation 2014 (Qld) (the Regulation).
  3. [6]
    The question to be decided is the amount the Plaintiff should be allowed by way of damages, and I have determined that to be $30,880.

The Plaintiff

  1. [7]
    The Plaintiff was born on 5 October 2001 and was 16 years old at the time of the collision. She was about to start year 12 at school.
  2. [8]
    Prior to the collision, the Plaintiff:
  • Had a thoracolumbar scoliosis which had been symptomatic since January 2014 and was exacerbated by the Plaintiff lifting a couch in 2016. On 30 January 2017 it was described as constant pain in the lower lumbar and thoracic back, ranging in intensity from four to seven out of 10. The pain was treated conservatively with pain medication, gels and heat packs.
  • Was at school and had completed year 11 with very good academic results.
  • Lived with her parents.
  • Worked up to 30 hours a week in the canteen at the Pine Central Holy Spirit Rugby League Club. The duties included cooking, making coffee, bar work, and cleaning. The symptoms from her scoliosis did not limit her ability to work.
  • Played volleyball and netball.

 The Injury

  1. [9]
    After the collision the Plaintiff said she experienced pain in the area of the right side of her neck, right shoulder blade, right lower back and in the middle of her back as indicated in exhibit 2.
  2. [10]
    She has treated the pain conservatively with a combination of yoga, Pilates, stretching, massages, walking, pain medication, and heat packs.
  3. [11]
    There is no dispute that, as a result of the collision, the Plaintiff suffered a soft tissue (whiplash) injury to her cervical spine and an aggravation of her thoracolumbar scoliosis.
  4. [12]
    The Plaintiff’s claim is based primarily on the opinion of neurosurgeon Dr Scott Campbell, which at its highest, in his report of 13 December 2019 (see exhibit 1), was that:

“With regard to the cervical spine injury, Miss O'Connor has persisting neck pain most days of the week. Examination revealed regional tenderness/guarding. In accordance with the AMA Guides 5th Edition Chapter 18 she is suffering a 3% Whole Person Impairment.

With regard to the thoracolumbar region, Miss O'Connor has ongoing daily lower back pain and bilateral sciatica. Examination revealed restricted flexion and extension of the thoracolumbar spine with central/right tenderness and guarding. In accordance with the AMA Guides 5th Edition DRE Category II she is suffering a 5% Whole Person Impairment.

There was no past history of neck pain contributing to the above impairment.

There was a past history of symptomatic thoracolumbar scoliosis and as such it would be reasonable to apportion 3% of the overall 5% impairment for the lumbar spine to pre-existing pathology. Therefore 2% Whole Person Impairment pertains to the subject road traffic accident.”

  1. [13]
    Doctor Campbell was of the opinion that the Plaintiff’s condition had stabilised and “reached maximal medical improvement”. In an addendum report of 14 May 2020, Dr Campbell said “[h]er main problem was the back pain and the neck pain to a lesser degree.”
  2. [14]
    The Plaintiff contends that I should prefer the evidence of Dr Campbell to that of Consultant Orthopaedic Surgeon Dr Peter McCombe.  In his report of 14 September 2020, Dr. McCombe diagnosed the Plaintiff as having suffered a mild whiplash injury to her cervical spine which is nearly completely resolved and lower back pain “secondary to aggravation of thoracolumbar scoliosis”. In that report, when considering any impact on the Plaintiff’s employment, he said:

“She would have experienced some pain and stiffness for a period of weeks to a month or so. She might reasonably have been unable to perform some of her work duties for a period of a few weeks (say 3). The majority of the inability was due to lumbar back pain which is in itself an aggravation of the pre-existing symptomatic conduction of lumbar scoliosis. It is reasonable that the accident described would have caused a few weeks to a month or so of increased lumbar pain had the scoliosis not been present. Her present limitations are mainly due to the pre-existing condition of symptomatic lumbar degenerative scoliosis with some aggravation from the accident.”

  1. [15]
    Dr McCombe concluded:

“Regarding the cervical spine, I have assessed the Claimant as having a DRE Category I (Table 15-5, page 392 AMA5) with 0% whole person impairment. The rationale being no significant clinical findings, no muscle guarding, no documentable neurological impairment and no significant loss of motion segment integrity with no other indications of impairment related to the injury and no fractures.

With regard to her lumbar spine, I have assessed her as a DRE Category I (Table 15-3, page 384 AMA 5) with a 0% whole person impairment. The rationale being no significant clinical findings, no observed muscle guarding or spasm, no documentable neurological impairment, no documented alteration in structural integrity and no other indications of impairment related to the injury or fractures.

There is a mild restriction of activities of daily living that is mainly related to the effects of the pre-existing condition scoliosis. The difference between her described symptoms now and those described by her general practitioner on 22.10.2016 are minimal. There is no reason to assess any further impairment under a pain assessment from Chapter 18 of AMA5.

Her total whole person impairment as a result of the accident is therefore assessed at 0%.”

  1. [16]
    On the whole of the evidence, I am satisfied on the balance of probabilities that the Plaintiff did suffer a mild whiplash injury to her cervical spine that has almost completely resolved and that her lower back pain was secondary to an aggravation of her thoracolumbar scoliosis. The aggravation of her scoliosis has also almost completely resolved, and the ongoing back pain is mainly the result of her pre-existing symptomatic condition. The soft tissue injuries, although initially more intense, have almost resolved, at the latest by the time of trial, and the Plaintiff has no ongoing whole person impairment for the following reasons:
  1. Doctor Campbell’s opinion concerning the Plaintiff’s cervical spine (neck) was based in part on the Plaintiff’s report that her neck pain was continuing, constant and intense. The Plaintiff conceded in her evidence that her main complaint was her lower back and right shoulder blade, and that her intermittent neck pain was more a nuisance.
  2. Doctor Campbell’s opinion concerning the Plaintiff’s neck injury was based in part on the Plaintiff’s report that she could not play netball after the injury. The Plaintiff’s evidence was that she could and did play netball about 10 times since the collision. Doctor Campbell said in that case “then there has been an improvement in her condition” and “I would drop it down to a one or two percent impairment for the neck injury”. He said “[i]f she was playing at her full capacity, that – reducing frequency, that would indicate a minor injury”.
  3. There is little difference in the Plaintiff’s documented back symptoms and treatment before and after the collision. While Dr Campbell assessed the Plaintiff’s pre-existing pathology at 60%, he conceded in this case that “60 to 90% would be the range of opinions that would fall within reasonable”.
  4. The Plaintiff gave evidence that sitting for any period caused her significant back pain. However, in December 2019, she flew economy class to France and back with no difficulties. Dr Campbell said, in that case, “that would indicate that her lower back complaint and neck complaint are less severe than stated”. He revised and reduced the Plaintiff’s neck impairment to 1% and the lumbar spine impairment to 3%, of which 2% was pre-existing, leaving a 1% impairment due to the collision and an aggregate of a 2% impairment to the whole person. He further said that “[i]f Ms O'Connor can fly economy class from here to France and back, without any symptoms, then yes, I would suggest that is a very minor injury.”
  5. The Plaintiff was treated conservatively at the hospital immediately after the collision and did not engage in any medical treatment after 16 February 2018 for her soft tissue injuries. When she did attend for medical appointments thereafter for other matters, she did not disclose any ongoing soft tissue injury or regular use of pain relief medication other than her pre-existing scoliosis. The Plaintiff’s stated immense dislike of doctors is not a plausible explanation given she had previously sought treatment for the pain caused by the scoliosis.

General Damages

  1. [17]
    The procedure for assessing general damages is set out by McMeekin J in Allwood v Wilson & Anor [2011] QSC 180 at [19]-[24] as:

“[19]. I am required to assess an injury scale value (“ISV”) for the injuries from the range of injury scale values set out in Sch 4 of the Regulation in order to determine the level of general damages (as defined) in accordance with the rules laid down in Part 2 of Sch 3 of the Regulation.

[20]. This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range (“the maximum dominant ISV”) adequately reflects the adverse impact of all the injuries. 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 selected. In arriving at an appropriate ISV the court needs to bear in mind that the effects of multiple injuries commonly overlap.

[21]. Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards, sight must not be lost of the overriding purpose of the ISVs prescribed – to reflect the level of adverse impact of the injury on the injured person.

[22]. The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use in so far as they are relevant to the particular case but is not necessarily limited to those factors: Sch 3 s. 8.

[23]. Additionally, in assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case: Sch 3 s 9. The examples provided of other matters are the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life. 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.

[24]. The extent of whole person impairment is an important consideration “but not the only consideration affecting the assessment of an ISV”: Sch 3 s 10. The dictionary defines “whole person impairment” (“WPI”) in relation to an injury as an estimate “… expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform activities of daily living other than employment.””

  1. [18]
    Given the findings in relation to the injuries suffered by the Plaintiff at paragraph 16, and that each injury has the same injury scale value, I find that the dominant injury is the lower back pain, secondary to an aggravation of the Plaintiff’s thoracolumbar scoliosis. I would assess that injury as a minor thoracic spine injury in item 94 schedule 4 of the Regulation with an ISV 4 on its own. The maximum ISV in that range (“the maximum dominant ISV”) does not adequately reflect the adverse impact of all the injuries, so I apply an uplift to an ISV 7 to take into account the injury to the cervical spine.
  2. [19]
    In that event the amount allowed under this head of damages is $11,880.00.

Past out of pocket expense

  1. [20]
    The Plaintiff is liable to refund Medicare $145.00 and, in the 176 weeks since the collision, has incurred the expense of travelling to medical appointments and purchasing pain medication, gels, balms and heat packs.
  2. [21]
    I would allow a global amount of $1,000.00 under this head of damage.

Future out of pocket expenses

  1. [22]
    The Plaintiff does not claim any ongoing need for specific treatment. The Plaintiff does claim the cost of her ongoing use of the pain medication Nurofen. I make some allowance for any need in the future to purchase pain medication, gels, balms and heat packs notwithstanding the pre-existing scoliosis is the primary and predominate cause of the Plaintiff’s ongoing back pain.
  2. [23]
    I would allow a global amount of $500.00 under this head of damages.

Past economic loss

  1. [24]
    The Plaintiff abandons any claim for past economic loss as a result of her injuries because she concedes the injury to date “has not resulted in any measurable loss of income”.

Future economic loss

  1. [25]
    Damages for future economic loss are awarded for loss of earning capacity to the extent that the loss produces or might produce financial loss: see Medlin v State Government Insurance Commission (1995) 182 CLR 1; Graham v Baker (1961) 106 CLR 304; and Allianz Australia Insurance Limited v McCarthy [2012] QCA 312.
  2. [26]
    The question is, has the Plaintiff’s earning capacity been diminished by reason of the injury caused by the first Defendant’s negligence? And, if so, will or may the diminution of earning capacity produce financial loss?

Has the Plaintiff’s earning capacity been diminished by reason of the injury caused by the first Defendant’s negligence?

  1. [27]
    Doctor McCombe stated in his report that:

“The Claimant can resume and has demonstrated the ability to resume their pre-accident employment, albeit with some pain.”

And, “It is unlikely the accident related sequelae will impact the Claimant’s employment in the future. There is a risk that there may be some impact on employment in the future. However, this would primarily be due to the underlying condition of her scoliosis with a small portion, perhaps 20%, due to aggravation of the underlying condition.”

  1. [28]
    He did not resile from that in cross-examination on this issue (see T 2-27.40 – 30.30).
  2. [29]
    Doctor Campbell said in his report that:

“Ms O'Connor is disadvantaged, to a degree, in the workplace compared to her uninjured counterparts due to the cervical spine injury and the aggravated thoracolumbar spine injury, sustained in the motor vehicle accident. Her symptoms are aggravated by prolonged sitting, computer work and driving which will impede her ability to work long hours and to perform optimally in a sedentary occupation. Ideally, she would not enter an occupation that was heavy and physical in nature due to her injuries.”

  1. [30]
    In cross-examination he maintained:

“…  it’s very possible that her disadvantage as a result of the subject accident is very minor?---Well, she is at a disadvantage, and her impairments are on the low side, so she’s got a five per cent overall impairment, so that would [indistinct] a – you know, a minor disadvantage, yes. Out of 100 per cent, that’s minor.

Sorry, I could have been clearer. The disadvantage brought about by the soft tissue injuries could be so minor that they could go unnoticed to, say, prospective employers?---Well, I think that her disadvantages are real and that they are likely to make her less competitive in the workplace in the future and effectively are likely to place her at a disadvantage within the workplace. Some workers can hide those disadvantages better than others. I can’t speak for Ms O'Connor, but overall, I think she will be disadvantaged as a result of her injuries.”

  1. [31]
    In the circumstances I find that the Plaintiff’s earning capacity has been diminished by reason of the injury caused by the first Defendant’s negligence.

Will or may the diminution of earning capacity produce financial loss?

  1. [32]
    The Plaintiff concedes that “there is no accurate way of quantitively measuring the impact of the accident on the Plaintiff’s earning capacity.” (see Closing Submissions for the Plaintiff p. 16 [103]-[105]).
  2. [33]
    That engages s 55 of the Act, which relevantly provides:

“(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2) 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.

(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.”

  1. [34]
    The Plaintiff contends that “it is likely that the Plaintiff, but for the injuries sustained in the accident, could have, in the future, worked in alternative employment involving less sedentary work, or for longer hours (or both), but for the injuries sustained in the accident. Her evidence is that she has a history of working up to 30 hours per week as a canteen worker (non-sedentary work) before the accident, after her scoliosis had emerged, without restriction.” (see Closing Submissions for the Plaintiff p. 17 [106]).
  2. [35]
    The Plaintiff is now 19 years old and she can be expected to live for another 67 years. The Plaintiff demonstrated a good work ethic from a young age and she performed very well academically at school while working part time in the canteen.
  3. [36]
    In considering whether the Plaintiff’s diminution in earning capacity will or may produce financial loss I take into account that:
  1. The Plaintiff’s injury did not adversely affect her school results, if anything, her results improved in year 12 and she achieved an excellent overall position (OP) score of 3.
  2. The Plaintiff was able to maintain her employment to the maximum number of hours allowed at the canteen. She has suffered no economic loss in the past.
  3. The Plaintiff enrolled in and studied law before she decided to discontinue that for reasons unrelated to her injury. Also, for reasons unrelated to the injury, she deferred her study of the French language, which she was learning because she aspired to move to France. The Plaintiff has no plan to return to either discipline or any other area of study. However, it is likely though that she will travel and have to find at least part time work to support herself.
  4. The Plaintiff has been able to live independently and perform normal household chores.
  5. The Plaintiff has been able to acquire and maintain sedentary employment with both Cornerstone Home Loans and Blue Card Services as an administrative assistant. She was not limited in the hours she was able to work. The Plaintiff is currently working part time in a casual capacity with Blue Card Services and providing care for her father. Heavy lifting such as that involved in lifting boxes of files would aggravate the Plaintiff’s pain but she now avoids that work and instead works primarily on a computer. The Plaintiff is able to perform that work satisfactorily by managing the pain she describes with pain medication, heat packs and regular walks. Her pain could be further managed by the use of ergonomic hardware. The Plaintiff called her colleague Bailey Jacobson at Blue Card Services to give evidence of her capacity at work, which included the Plaintiff lifting the file archiving boxes. His evidence was, in part:

“ Q. And how did she seem to cope with all those duties from your observations?

A. In my observation, she seemed to cope with them quite well. I didn’t really pick up on anything.” (See also T 1-83.10-40)

  1. The Plaintiff gave evidence that she may not work at all for a time if she is required to care for her father on a full-time basis (see T 1-20.16).
  2. The Plaintiff did not express any intention to return to work in the hospitality industry or manually intensive work (including file movement) in the future (see T 1-50.45; 1-51.15). The Plaintiff’s pre-existing scoliosis would limit her ability to perform manually intensive work in the future in any event.
  1. [37]
    The 19 year old Plaintiff’s future career ambitions, if any, are uncertain. Her life could take various paths and the impact of an injury such as this is difficult to assess. It is very finely balanced but synthesising the considerations I have identified, I am satisfied that the diminution in the Plaintiff’s earning capacity may produce financial loss, however the extent of that loss will be limited.
  2. [38]
    In all the circumstances, I allow a global figure of $17,500.00 including an amount for superannuation.

Summary

  1. [39]
    In summary, I assess damages as follows:

Head of Damage

Amount Claimed

General Damages

$ 11,880.00

Past Special Damages (including interest to date)

$ 1,000.00

Future expenses

$ 500.00

Future economic loss

$ 17,500.00

TOTAL

$ 30,880.00

Orders

  1. [40]
    There will be judgment for the Plaintiff in the sum of $ 30,880.00.
  2. [41]
    I will hear from counsel as to costs.
Close

Editorial Notes

  • Published Case Name:

    O'Connor v Wright

  • Shortened Case Name:

    O'Connor v Wright

  • MNC:

    [2021] QDC 173

  • Court:

    QDC

  • Judge(s):

    Moynihan QC DCJ

  • Date:

    12 Aug 2021

Appeal Status

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

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