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Towell v Mooney & Allianz Australia Insurance Ltd[2023] QDC 130

Towell v Mooney & Allianz Australia Insurance Ltd[2023] QDC 130

DISTRICT COURT OF QUEENSLAND

CITATION:

Towell v Mooney & Allianz Australia Insurance Ltd [2023] QDC 130

PARTIES:

TALITHA ANN TOWELL

(plaintiff)

v

BENAJMIN JAMES MOONEY

(first defendant)

ALLIANZ AUSTRALIA INSURANCE LIMITED

(second defendant)

FILE NO:

763/22

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

21 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

3 May, 4 May and 15 May 2023

JUDGES:

Dearden DCJ

ORDER:

I order that the defendants pay the plaintiff the sum of $285,122.63 damages in respect of the motor vehicle collision occurring on 30 August 2019.

CATCHWORDS:

NEGLIGENCE – DAMAGES – PERSONAL INJURY – MOTOR VEHICLE ACCIDENT – quantum of damages – where the plaintiff suffered cervical spine injury – whether the assessment of general damages within the injury scale value is of item 80 or 81 and where within those items – what significance the plaintiffs other injuries or symptoms had, if any – previous injury suffered in motor vehicle incident

NEGLIGENCE – DAMAGES – PERSONAL INJURY –  whether past loss of income is beyond that of the uplift on WorkCover payments – whether the plaintiff has proved that the accident-related diminution may be productive of economic loss – whether the assessment of special damages should include allowance for attendance on massage therapist, personal training and pharmaceutical

LEGISLATION:

Motor Accident Insurance Act 1994 (Qld)

Civil Liability Act 2003 (Qld)

Civil Liability Regulations 2014 (Qld)

CASES:

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Ballesteros v Chidlow [2006] QCA 323

Brooks v Zammit [2011] QSC 181

Fox v Wood (1991) 148 CLR 438

Goodfellow v Clarke [2015] QDC 193

Graham v Baker [1961] 106 CLR 340

Medlin v State Government Insurance Commission [1995] 182 CLR 1

Nucifora & Anor v AAI Limited [2013] QSC 338

O'Connor v Wright [2021] QDC 183

Perfect v MacDonald & Anor [2012] QSC 11

Reardon-Smith v Alliance Australia Insurance [2007] QCA 211

Sutton v Hunter [2021] QSC 249; [2022] QCA 208

COUNSEL:

D Murphy for the plaintiff

EJ Williams for the first and second defendants

SOLICITORS:

Richardson & Lyons Solicitors for the plaintiff

Moray & Agnew for the first and second defendants

Introduction

  1. [1]
    The plaintiff, Talitha Ann Towell, claims damages for personal injuries suffered in a motor vehicle accident on 30 August, 2019.  It is accepted that the collision occurred because of the negligence of the first defendant (Benjamin James Mooney) and that the second defendant (Allianz Australia Insurance Ltd ABN 15 000 122 850 3) is liable for the negligence of the first defendant and consequential injury and loss pursuant to the provisions of the Motor Accident Insurance Act 1994 (Qld).[1]

Triable issues

  1. [2]
    Prior to trial, it was agreed between the parties that the issues for determination are as follows:
  1. Injury – whether Ms Towell suffered a permanent cervical spine injury in the accident and if so the extent of such, in particular the appropriate permanent impairment assessment?
  2. The significance of any other injuries or symptoms suffered before or after the motor vehicle accident?
  3. General damages – what is the appropriate assessment of Ms Towell’s cervical spine injury pursuant to the Civil Liability Act 2003 (Qld) and Civil Liability Regulations 2014 (Qld) – Item 88 “Moderate cervical spine injury – soft tissue” with an ISV of 9 or Item 89 “Minor cervical spine injury” with an ISV of between 1 and 4?
  4. Past loss of income – whether Ms Towell has, as a consequence of a cervical spine injury, suffered past loss of income beyond the agreed past loss of $16,684.54 (being a refund to WorkCover Queensland) and if so the extent of such loss?
  5. Future loss of income – whether Ms Towell, as a consequence of a cervical spine injury, suffer future loss of income and if so the extent of such loss?
  6. Past special damages – whether Ms Towell has, as a consequence of a cervical spine injury, incurred past special damages beyond the agreed amounts (WorkCover refund of $12,213.79 and Medicare Charge of $529.45) and if so the extent of such costs?
  7. Future special damages – whether Ms Towell will, as a consequence of a cervical spine injury, incur future medical expenses, in particular pharmaceutical expenses, therapy expenses and travelling expenses, and if so, the extent of such costs?[2]

Plaintiff’s biography

  1. [3]
    The plaintiff was born on 14 October 1987.[3]  The plaintiff was aged 31 at the time of the collision on 30 August 2019 and turned 32 on 14 October 2019.  The plaintiff is currently aged 35 and a half and the parties agree that she has a statistical life expectancy of 51 years.[4]

The issues

Issue 1: Injury - whether Ms Towell suffered a permanent cervical spine injury in the accident and if so the extent of such, in particular the appropriate permanent impairment assessment?;

Issue 3: General Damages – what is the appropriate assessment of Ms Towell’s cervical spine injury pursuant to the Civil Liability Act 2003 (Qld) and Civil Liability Regulations 2014 (Qld) – Item 88 “Moderate cervical spine injury – soft tissue” with an ISV of 9 or Item 89 “Minor cervical spine injury” with an ISV of between 1 and 4?

  1. [4]
    The parties agree that the plaintiff’s neck injury ought to be assessed, by the medical experts, pursuant to AMA5 guidelines and in particular Table 15-5 Cervical Spine Injury.[5]
  2. [5]
    Dr Robert Labrom, orthopaedic surgeon, examined the plaintiff on 3 December 2020 and 19 April 2022.[6]  On both occasions, Dr Labrom noted:
  1. Reduced range of motion;[7]
  2. Stiffness with some asymmetrical changes;[8]
  3. Muscular guarding on palpation.[9]
  1. [6]
    Dr Labrom diagnosed the plaintiff as suffering an “ongoing permanent aggravation of mild, previously asymptomatic degenerative changes in the cervical spine”.[10]  Dr Labrom’s opinion is that the plaintiff was suffering from a DRE Category II cervical spine injury (using Table 15-5 of the AMA5) and assessed a 7% whole person impairment as a consequence of the incident motor vehicle collision.[11]
  2. [7]
    Associate Professor Outerbridge assessed the plaintiff on 13 December 2021.[12]  In his oral evidence, Associate Professor Outerbridge conceded that the opinion of Dr Labrom. that the plaintiff was suffering DRE Category II cervical spine injury on both occasions when he examined her, was reasonable on the basis of her clinical presentation.[13]  Associate Professor Outerbridge also conceded that Dr Labrom was at an advantage in assessing the plaintiff given that he had assessed her on two occasions and stated “I’m trumped. Yes.”[14]
  3. [8]
    The plaintiff’s general damages are to be assessed pursuant to the provisions of the Civil Liability Act 2003 (Qld) (CLA) and Civil Liability Regulations 2014 (Qld) (CLR); relevantly CLA s 62 and CLR ss 7 & 8 and Sch 3 & 4.
  4. [9]
    The plaintiff submits that pursuant to the CLA and CLR, the relevant item for classification of the plaintiff’s cervical spine injury is:

88 moderate cervical injury – soft tissue injury

Comment

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

Comment about appropriate level of ISV

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

5 to 10

  1. [10]
    The plaintiff submits that in light of Dr Labrom’s assessment, and the concessions of Associate Professor Outerbridge, the plaintiff’s cervical spine injury ought to be assessed as falling within Item 88 and ascribed an ISV of 9 (noting that an 8% whole person impairment equates to an ISV of 10).
  2. [11]
    The defendant, while accepting that the plaintiff’s general damages ought to be assessed pursuant to CLR Item 88, submits that an ISV of 7 is appropriate, without providing reasons for that submission. [15]
  3. [12]
    In the circumstances, I accept the plaintiff’s submission that an ISV of 9 is appropriate, noting the 7% whole person impairment opined by Dr Labrom,[16] and in the light of an 8% whole person impairment assessment equating to an ISV of 10.
  4. [13]
    As the plaintiff submits, and I accept, an ISV of 9 equates to general damages of $15,300, and there is no entitlement to an award of interest on those general damages.[17]

Issue 2: The significance of any other injuries or symptoms suffered before or after the motor vehicle accident?

  1. [14]
    The plaintiff identifies that the defence filed by the defendants alleges:-

“The plaintiff had several pre-existing injuries which would potentially contribute to future economic loss.”[18] And “The plaintiff’s ability to work in childcare was impacted by several other pre-existing injuries.”[19]                       

  1. [15]
    Further, the defence alleged:-                                                                                             

That the plaintiff had “pre-existing injuries including a musculo-ligamentous strain to the lumbosacral spine, lumbar spondylosis, right shoulder subscapularis tear, right hand carpal tunnel syndrome, nerve injury, brachial plexopathy, intraneural scarring of the nerves in the upper limbs, depression, anxiety, sleep difficulties, adjustment disorder, muscular leg strain, cervical spine degenerative changes, daily headaches, right knee pain and central lower cervical pain for which the plaintiff may have required treatment in the future and which may have restricted the plaintiff’s capacity for employment in any event.”[20]

  1. [16]
    In respect of these prior injuries and symptoms, the plaintiff gave evidence that she worked at Foodworks, which involved significant physical aspects of manual handling;[21] that prior to the motor vehicle collision, the physical demands of the job at Foodworks would occasionally aggravate her shoulder, but she was able to complete her full duties at Foodworks;[22] that prior to the motor vehicle collision (from April, 2019 until 30 August, 2019) she was, a couple of times a week, working shifts at both the Wandilla Magic Childcare Centre and Foodworks on the same day;[23] that after the collision, the physical demands of the job at Foodworks were constantly re-aggravating her neck injury;[24] and that for a period of time from July 2018 through until the date of the accident (30 August 2019), the plaintiff worked two jobs, one job in retail with Foodworks and a job in childcare, firstly with Montessori,[25] and subsequently with Wandilla Magic Childcare Centre.[26]  Further, the plaintiff gave evidence that prior to 30 August 2019, she had never turned down a shift at Wandilla Magic Childcare Centre because of any other injuries suffered by her[27] and was unrestricted in performing the childcare role at that childcare centre.[28]  Similarly, prior to the collision date, the plaintiff did not have any physical restrictions in performing the demands of her childcare role at the Montessori Childcare Centre.[29]
  2. [17]
    Defence witness Benjamin Tanner, who was the plaintiff’s treating physiotherapist, both before and after the motor vehicle collision on 30 August 2019,[30] treated her prior to the collision for right sided neck pain and right shoulder pain;[31] and stated that after the collision, the treatment he provided to the plaintiff was different to that which he provided pre-accident[32] and was for a “classic whiplash type injury”, being for both sides of her neck.[33] 
  3. [18]
    Mr Tanner gave evidence that for a period of 14 months prior to the collision, from 24 July 2018 through until 4 September 2019 (four days post the collision), he treated the plaintiff on only one occasion, in December 2018,[34] for the right chest/pectoral area.[35]  Mr Tanner also stated that from January 2019 until early September 2019, the first time he treated the plaintiff was after the motor vehicle collision.[36]
  4. [19]
    The defendant tendered the report of Associate Professor Outerbridge, who was asked to provide an opinion as to whether the plaintiff’s prior injury relating to the electrocution event of 2015 impacted her capacity to work, or the injuries she suffered in the motor vehicle accident.[37] Associate Professor Outerbridge’s opinion was that the electrocution event of 2015 had no effect on the plaintiff’s neck injuries suffered in the motor vehicle collision, nor her employment capacity post that collision.[38] 
  5. [20]
    Dr Robert Labrom, orthopaedic surgeon, assessed the plaintiff as suffering a DRE Category II injury, using Table 15-5 (Cervical spine) and assessed an 8% whole person impairment, taking account of the findings on radiology and making a discount of 1% for pre-existing degeneration.[39]
  6. [21]
    Under cross-examination, Dr Labrom gave evidence that the plaintiff was “a genuine sort of person”, happily working in childcare at the date of the collision;[40] the motor vehicle collision had seen a significant escalation of the plaintiff’s pain and a new quality of pain;[41] and the motor vehicle collision should be seen as a “very significant moment” where the plaintiff suffered a new injury to her cervical spine.[42]
  7. [22]
    Dr Labrom’s evidence was that the plaintiff’s prior neck symptomatology for which she received treatment at Body Viva Physiotherapy (from Mr Benjamin Tanner) was of a different nature, and “the quality of the pain and the location of the pain is very different”.[43]  The plaintiff’s neck injury subsequent to the motor vehicle collision was “profoundly different, in terms of bilateral neck pain [and] the increased amount of pain”.[44]
  8. [23]
    Dr Labrom gave evidence that the plaintiff’s prior right shoulder and right sided neck injury suffered in the electrocution in 2015 would not have impacted on the plaintiff’s capacity to work in childcare, noting that she was undertaking both childcare work and her role at Foodworks at the time of the motor vehicle collision.[45]
  9. [24]
    Dr Labrom stated that the disc bulging at C7/T1 identified prior to the motor vehicle collision would not have interfered with the plaintiff’s capacity to work, but for that motor vehicle collision.[46]
  10. [25]
    In respect of the plaintiff’s treatment at the Logan Hospital in 2017, Dr Labrom’s evidence was that this was for an acute episode of neck pain which was short-lived, compared with the motor vehicle collision which should be seen as a “separate amount of force”.[47]  Dr Labrom’s evidence was that the plaintiff’s subsequent injury in late January 2022 with respect to a fall at work involving the shoulder caused no injury to the plaintiff’s neck,[48] was “relatively benign and has resulted in some shoulder pain though in no easy way can I understand how it is seen a significant injury to her cervical spine, nor did it aggravate any of her previous neck symptoms,”[49] and did not overtake the car related neck injury in terms of significance.[50]
  11. [26]
    Dr Labrom’s evidence is that the plaintiff’s pre-existing neck pathology was an impairment of no more than 1% whole person impairment and any assessment prior to the motor vehicle collision would likely have assessed the plaintiff as suffering 0% whole person impairment as a consequence of that neck pathology.[51]  Further, the plaintiff was not at a significant disadvantage on the open-labour market because of her prior neck pathology, having “maintained excellent proof that she was working two jobs” before then.[52]  The plaintiff’s prior conditions were not “the bigger barrier” to her working in childcare.[53]
  12. [27]
    The defendants submit that this court should be cautious in accepting the evidence of the plaintiff, both as to the significance of her past history, and her evidence as a whole, because it is submitted she falsely declared the contents of her notice of claim form,[54] in particular, in respect to the question as to whether she had suffered a prior “significant disability”, including making any claim for damages, social security benefits or compensation and/or receiving any amount by way of damages, social security benefits or compensation by way of a “significant disability”, being a personal injury, illness or disability that either may be relevant to the assessment of the extent of the injury suffered by the injured person in the accident or lasted (or its symptoms lasted) for four weeks or more.[55]  It should be noted that the work claim history injury profile of the plaintiff identifies that she had made six separate WorkCover claims.[56]
  13. [28]
    Those claims are summarised by the defendant as follows:-[57]
  1. “A.
    On 22 April 2008 the plaintiff admitted that she suffered an injury when slipping on a substance at work, and subsequently brought a WorkCover claim. She could recall this incident and the claim that she brought.[58] The plaintiff refused to concede that the claim constituted a ‘significant disability’ within the meaning provided by the Notice of Accident Claim form (Exhibit 18), despite that the injury and the claim constituting a ‘significant disability’.
  1. B.
    On 13 June 2008 the plaintiff brought a claim with WorkCover. She could not recall this claim, which was subsequently rejected by WorkCover.[59]
  1. C.
    Following a prior motor vehicle accident of 29 April 2009, the plaintiff brought a WorkCover claim and a CTP claim against an insurer. She could recall this injury and the claim. And her evidence was that she received a substantial award – estimated now by her to be (after lawyer fees and outlays and ‘in the hand’) of $35,000 to $40,000.[60] The plaintiff accepted that it constituted a ‘significant disability’ within the meaning provided by the Notice of Accident Claim form (Exhibit 18).[61]
  1. D.
    The evidence favours a finding that she did indeed bring a claim for an injury suffered on 22 March 2010. The plaintiff could not recall this claim,[62] which the WorkCover profile suggests that the claim was rejected.
  1. E.
    The WorkCover profile (Exhibit 19) provides that on 2  November 2011 the plaintiff suffered back pain, lumbago and sciatica. The plaintiff had no recollection of this injury or the claim.[63]
  1. F.
    The WorkCover claim history also provides that the plaintiff was injured on 19 February 2015. That was the electrocution event that was disclosed in the Notice of Accident Claim form.”
  1. [29]
    In respect of the WorkCover claim history and the notice of accident claim form (completed inconsistently with the WorkCover claim history), the defendants submit that the plaintiff accepted that a notice of accident claim form was a legal document, was signed before a Justice of the Peace,[64] and that, as signed, it was untrue.[65]
  2. [30]
    The defendants submit that the plaintiff’s disclosures were a deliberate attempt to mislead the second defendant; that she was aware of the prior 2009 motor vehicle accident and the significant settlement that she’d achieved through that claim; was also aware of the April 2008 claim, but failed to disclose it; and that it is difficult to accept that she could not recall four other separate injuries for which claims were brought, albeit not accepted.[66]
  3. [31]
    In those circumstances, it is submitted that each of the prior claims constituted a “significant disability” within the meaning set out in the notice of accident claim form, and that in those circumstances, the plaintiff was shown to be an inherently unreliable witness.[67]
  4. [32]
    The plaintiff’s response to those submissions by the defendants firstly identifies that with respect to the various WorkCover claims that were not revealed in the notice of accident claim form, there is no evidence led by the defendants as to the injury suffered in respect of the 22 April 2008 claim; the basis on which it was accepted; the nature of the treatment provided; the nature of the benefits paid or the duration of the claim; and consequently no basis to identify whether or not it was a “significant injury” or a “significant disability” within the meaning of the notice of accident claim form.[68]
  5. [33]
    With respect to the WorkCover claim of 13 June 2008, the plaintiff could not recall the claim; it was rejected by WorkCover; and again there was no evidence led by the defendants as to what the injury was; the nature of treatment provided; and the duration of the injuries and treatment.  In respect of that claim, it is again submitted that there was no evidence that it was a “significant disability”.[69]
  6. [34]
    In respect of the WorkCover claim of 22 March 2010, this again could not be recalled by the plaintiff; it was rejected by WorkCover; and similarly the defendant led no evidence to what the injury was; the nature of the treatment and the duration of any injuries and treatment; and accordingly, there was, it is submitted, no basis to identify that claim as constituting a “significant disability”.[70]
  7. [35]
    Further in respect of the WorkCover claim of 2 November 2011, this claim could also not be recalled by the plaintiff; was in respect of back pain, lumbago and sciatica, but again no evidence was led as to the nature of the treatment, nor the duration of the treatment. In those circumstances, it is again submitted that the defendants did not have a basis to claim that this was a “significant disability” within the meaning of the notice of accident claim form.[71]
  8. [36]
    I accept the thrust of those submissions on behalf of the plaintiff, and in the absence of evidence as identified by the plaintiff, I could not conclude that the failure to disclose any of those four claims (22 April 2008; 13 June 2008; 22 March 2010; 2 November 2011) was a breach of the obligation to reveal a “significant disability” in the notice of accident claim form.
  9. [37]
    The plaintiff notes that the prior electrocution injury in 2015 was disclosed as a “significant disability” in the notice of accident claim form, as the defendants acknowledged.[72]
  10. [38]
    The only claim which, the plaintiff submits, could be considered a “significant disability” that was not disclosed in the notice of accident claim form was the car accident of 2009.  In respect of that failure, the plaintiff submits that she instructed the same solicitors firm in respect of all three claims for damages;[73] that the notice of accident claim form was completed by that same firm of solicitors, not by the plaintiff (I note that the form is typewritten, not handwritten); and the plaintiff signed where her lawyer told her to.[74] The plaintiff gave evidence that she did not “deliberately not disclose it”.[75]  Further, the plaintiff disclosed to both Dr Labrom and Associate Professor Outerbridge the details of this earlier motor vehicle accident when she attended on each of them for examination[76] and Dr Labrom in his evidence noted that the plaintiff had disclosed that prior car accident and that he “was aware of that from the very first moment and the very first report …”.[77]
  11. [39]
    The plaintiff’s submissions frankly acknowledge that if there is to be criticism of anyone, it would be the solicitor who prepared the notice of accident claim form.[78] With respect, it seems to me to be an extraordinary and regrettable oversight on the part of that solicitor, given the solicitor’s access, presumably, to the law firm’s records.  However, in my view, the failure to disclose the 2009 car accident on the notice of accident claim form, although unfortunate, was acknowledged by the plaintiff; disclosed by her as clearly relevant to both the examining medical experts; and was information that was, in any event, easily accessible by the defendants through WorkCover records. In my view, that acknowledged failure to disclose, while unfortunate, does not detract in any way from the plaintiff’s credibility in respect of her evidence, both directly by way of oral evidence, and through the histories provided to, and the examinations undertaken, by each of Dr Labrom and Associate Professor Outerbridge.  Accordingly, I reject the submissions by the defendants that the plaintiff was an inherently unreliable witness.  On the contrary, I considered the plaintiff to be an honest and frank witness, making concessions where appropriate, and I have no hesitation in acting upon her evidence in these proceedings.
  12. [40]
    The plaintiff submits, and I accept, that Dr Labrom’s evidence was unchallenged by any contrary expert medical opinion, and it was the defendants who bore the onus of proving, on balance, that the plaintiff suffered other injuries which did, have or will affect the plaintiff’s ability to work or to incur the claimed medical expenses in any event, despite the motor vehicle collision. 
  13. [41]
    The plaintiff’s submission is that there is no evidence from any medico legal expert, nor treating medical practitioner, nor any lay evidence, which opined that any injuries or symptoms which the plaintiff suffered either prior to, or since the motor vehicle collision impacted on her capacity to work.  In those circumstances, the plaintiff submits, and I accept, that the plaintiff’s evidence, taken with the specialist expert opinion of Dr Labrom, and the evidence of Mr Benjamin Tanner, as her treating physiotherapist, ought to be accepted by the court, on the balance of probabilities.  It is further submitted, and I accept, that the evidence of Associate Professor Outerbridge does not challenge or criticise those opinions.

Issue 4: Past loss of income – whether Ms Towell has, as a consequence of a cervical spine injury, suffered past loss of income beyond the agreed past loss of $16,684.54 (being a refund to WorkCover Queensland) and if so the extent of such loss?

  1. [42]
    At the date of the motor vehicle collision the plaintiff was working both as a retail employee/shift supervisor at Foodworks and as a casual floater at Wandilla Magic Childcare Centre.[79]
  2. [43]
    As a consequence of the motor vehicle collision, the plaintiff lodged a WorkCover claim and was paid weekly benefits in respect of her lost income from the job with Foodworks.[80] The plaintiff received weekly statutory benefits from WorkCover in the sum of $14,181.86,[81] calculated at 85% of her pre-accident net weekly earnings.  Accordingly, the plaintiff’s true loss of earnings as compensated by WorkCover Queensland is $16,684.54, a past loss of income admitted by the defendant.[82]
  3. [44]
    The plaintiff received no benefits for her loss of income as a casual floater at Wandilla Magic Childcare Centre[83] and never returned to employment at Wandilla Magic Childcare Centre after the motor vehicle collision.[84]  The plaintiff gave evidence that her doctor recommended she not go back to childcare work and she knew from her job at Foodworks that the constant lifting in childcare work would aggravate her neck injury.[85]  Over a period of 22 weeks, from early April 2019 until 30 August 2019 (the date of the collision) the plaintiff earned $5,014[86] while employed as a casual relief staff member at Wandilla Magic Childcare Centre. 
  4. [45]
    The plaintiff gave evidence that prior to the motor vehicle collision, it was her intention to secure a permanent role at Wandilla Magic Childcare Centre;[87] she had, at the time, recently completed her diploma of early childhood education;[88] she had worked at Montessori Childcare Centre from July 2018 to April 2019[89] and at Wandilla Magic Childcare Centre as a casual relief staff member since April 2019.[90]  The plaintiff intended to work in childcare long-term[91] and had an ambition to become a director of a childcare centre.[92]
  5. [46]
    There were multiple permanent positions at Wandilla Magic Childcare Centre which became available after the motor vehicle collision,[93] but the plaintiff did not apply for any of those positions because of the neck injury suffered in the motor vehicle collision.[94] 
  6. [47]
    The plaintiff did, in fact, after the motor vehicle collision, apply for three different non-childcare positions, all of which she was offered,[95] and accepted what she considered to be the lightest of the roles because of her neck injury and ongoing symptoms.[96]  The plaintiff is currently employed as a quality assurance officer with Mitchell Foods earning approximately $68,000 gross per annum.[97]
  7. [48]
    The plaintiff gave evidence that her work at Foodworks involved significant aspects of manual handling;[98] that after the motor vehicle collision the physical demands of the job at Foodworks was constantly re-aggravating her neck injury;[99] and the main issue for the plaintiff after the motor vehicle collision was lifting 10 to 15 kilogram cartons.[100]
  8. [49]
    The plaintiff then applied for and accepted a job at Lite n’ Easy which was a less physical role;[101] whereas her pre-accident role with Wandilla Magic Childcare Centre involved working in the nursery and with younger children up to age three, with physical participation including constant lifting of young children.[102]
  9. [50]
    Dr Labrom’s evidence was that the plaintiff was “a genuine sort of person”, happily working in childcare at the date of the collision;[103] the motor vehicle collision had seen a significant escalation in her pain and a new quality of pain;[104] and should be seen as a “very significant moment” where the plaintiff suffered a new injury to her cervical spine.[105]
  10. [51]
    Dr Labrom also gave evidence that the plaintiff’s prior right shoulder and right sided neck injury suffered in the electrocution of 2015 would not have impacted on the plaintiff’s capacity to work in the childcare centre, noting she was undertaking both childcare work and her role at Foodworks at the time of the motor vehicle collision;[106] and stated that there was no reason that the plaintiff would not have been able to continue to work in childcare, had it not been for the motor vehicle collision.[107]
  11. [52]
    Dr Labrom stated that the plaintiff should avoid activity that includes heavy lifting and twisting; that her activity in childcare would be restricted because of her inability to lift and carry young children;[108] and the neck injury suffered in the car accident impacted on the plaintiff’s capacity to work in childcare because of the “requirement to sit in low positions, often on the floor with children, lift children, change nappies on infants and the like, as well as the ongoing issues that involve pain, stiffness and poor concentration”.[109]  The evidence from Dr Labrom is that it was highly unlikely that the plaintiff would ever return to childcare work, given her neck injury and consequential restrictions.[110]
  12. [53]
    I accept the plaintiff’s submissions that the evidence of Associate Professor Outterbridge does not challenge the evidence of the plaintiff, nor the expert evidence of Dr Labrom, in particular, in respect of the plaintiff’s abilities, subsequent to the motor vehicle collision, to return to childcare work. Associate Professor Outerbridge does not opine that the plaintiff is capable of doing work in the childcare industry despite her cervical injury, nor does he opine that the plaintiff’s capacity to work in the childcare industry either before or after the motor vehicle collision would have been affected by unrelated and/or non-compensable injuries. 
  13. [54]
    Ms Sarah Alcott gave evidence that, subsequent to the plaintiff’s motor vehicle accident, Wandilla Magic Childcare Centre employed staff in permanent roles;[111] her experience as assistant director and director of that centre indicates that preference was given to workers employed as casual floaters when employing permanent staff;[112] Ms Alcott’s qualifications were the same as the plaintiff’s qualifications,[113] and no extra qualifications or studies were required to undertake assistant director or director roles.[114]  Ms Alcott gave evidence that she had recently been offered the position of director at Wandilla Magic Childcare Centre on a salary package of $92,000, plus superannuation benefits, free childcare and occupancy bonuses.[115]  Ms Alcott considered that the plaintiff had the leadership skills and personality to run a childcare centre,[116] and she’d had the opportunity to observe the plaintiff both at work at Wandilla Magic Childcare Centre as well as interacting with Ms Allcott’s own children.[117]
  14. [55]
    It is submitted (and I accept) that apart from the period of weekly benefits, the plaintiff’s claims for both past and future loss of income cannot “be precisely calculated by reference to a defined weekly loss”.  Accordingly, CLA s 55 applies:

55 When earnings can not be precisely calculated

  1. (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.
  1. (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.
  1. (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. (4)
    The limitation mentioned in section 54(2) applies to an award of damages under this section.”
  1. [56]
    The limitation imposed by CLA s 54(2) is that the maximum award for loss of earnings is “the present value of 3 times average weekly earnings per week for each week of the period of loss of earnings”. 
  2. [57]
    The plaintiff submits that CLA s 55 does not change the common law “but rather provides for intellectual rigor transparency in such assessment”.[118] Support for that submission can be found from the decision of McMeekin J in Brooks v Zammit [2011] QSC 181, [34] – [35]; Perfect v MacDonald & Anor [2012] QSC 11, [48]-[51].  Keane JA in Reardon-Smith v Alliance Australia Insurance [2007] QCA 211, [37], Ballesteros v Chidlow [2006] QCA 323 [41]; McMeekin J in Nucifora & Anor v AAI Limited [2013] QSC 338, [30] and noting the contrary view by Freeburn J in Sutton v Hunter [2021] QSC 249, [105]; [2022] QCA 208 [92]-[94]. I accept the submission of the plaintiff that global awards for economic loss can be made by this court and it is appropriate that the plaintiff be awarded a global sum for past loss of income in addition to the agreed sum of her WorkCover weekly benefits.[119] 
  3. [58]
    The defendant submits that the plaintiff bears the onus of proving past loss of income beyond that of the uplift on WorkCover statutory payments; that she has not done so; and consequently should receive no more than the agreed past loss of $16,684.54 (the uplift of the WorkCover weekly benefit payments at 85% of her income from Foodworks).[120]
  4. [59]
    The plaintiff, on the contrary, submits that the motor vehicle collision and consequential cervical spine injury has had the effect that she is unable to pursue her desired and chosen career path in childcare, which she intended to work in long term, with an ambition to become a director of a childcare centre; that she is restricted to performing work of a lighter nature (currently undertaking work in quality assurance); that the evidence of Dr Labrom is that the plaintiff is restricted in her working capacity as a consequence of her cervical spine injury and cannot return to performing work in the childcare centre (evidence neither countered nor challenged by Associate Professor Outerbridge); and that prior to the motor vehicle collision, the plaintiff was earning in the order of $238.76 net per week from childcare work, in addition to her wage from Foodworks; and that the plaintiff was never able to get back to earning this income. 
  5. [60]
    The plaintiff submits further that she would have continued to work as a casual/floater childcare educator at Wandilla Magic Childcare Centre in addition to working at Foodworks, until such time as she was able to secure permanent employment in the childcare industry, which, from the evidence of Ms Alcott, was to be expected, but without any definitive date being able to be established when that could have been achieved on a permanent basis. 
  6. [61]
    The plaintiff submits that in those circumstances, if she did nothing more than continue to work as a casual/floater childcare educator at Wandilla Magic Childcare Centre, she would have continued to earn an average of $238.76 net per week over a period of 193 weeks since the date of the motor vehicle collision, an amount of $46,080.68. She did, in fact, obtain alternative employment and earned $52,900 net in 2022,[121] an amount likely equivalent to a salary as a childcare educator.  In those circumstances, it is the plaintiff’s submission that in addition to the agreed refund to Work Cover Queensland of $16,684.54, she has lost further income due to her inability to work in the childcare industry as a casual floater and that a global sum for that further loss (in addition to the WorkCover Queensland agreed refund) would be in the order of $25,000.
  7. [62]
    In my view, the plaintiff has, on balance, demonstrated an additional loss of past income, albeit that it cannot be precisely calculated,[122] and the sum of $25,000, in my view, represents an appropriate global sum for the additional past loss of income.
  8. [63]
    In the circumstances, I conclude that the plaintiff should be awarded the sum of $41,684.54 total past loss of income, with interest calculated, pursuant to CLA s 60(3), at 1.66% per annum, for a period of 3.711 years (on the sum of $25,000), equalling $1,540.06.[123]
  9. [64]
    The parties agree that the past loss of superannuation should be calculated at 10% of the plaintiff’s past loss of income, and that no superannuation benefits were received by the plaintiff in respect of her WorkCover weekly statutory payments, so accordingly the plaintiff is entitled to be awarded loss of superannuation benefits on the whole amount of her past loss of income, which at 10% of $41,684.54, equates to $4,168.45.

Issue 5: Future Loss – whether Ms Towell will, as a consequence of a cervical spine injury, suffer future loss of income and if so the extent of such loss?

  1. [65]
    As previously identified, prior to the motor vehicle collision the plaintiff intended to work in childcare long term;[124] had obtained the necessary qualifications; and intended to attain the role of assistant director, and subsequently director of a childcare centre.[125]  The plaintiff gave evidence that she could no longer work in the childcare industry due to her neck injury.[126]  The evidence of Dr Labrom supports the conclusion that the plaintiff can no longer work in the childcare industry because of the neck injury suffered in the motor vehicle accident,[127] and that but for that neck injury she would have been capable of working in the childcare industry.[128]
  2. [66]
    The plaintiff gave evidence that she is currently earning a salary in the order of $68,000 gross per annum,[129]with an expected maximum in the current role of $70,000 gross per annum.[130]
  3. [67]
    Ms Alcott gave evidence that, as of the trial date, she had recently been offered a salary of $92,000 plus superannuation benefit, free childcare and occupancy bonuses to become the director of Wandilla Magic Childcare Centre,[131] in circumstances where she had exactly the same qualifications as the plaintiff,[132]having moved from initially working at Wandilla Magic Childcare Centre in late 2015 through to an assistant director in May 2021, and a director role in July 2021.[133]  Apart from her assistant director and director roles, Ms Alcott gave evidence that she had interviewed and employed childcare workers and that in her opinion, the plaintiff had the aptitude to work as a director of a childcare centre.[134]
  4. [68]
    The plaintiff submits that the difference in earnings of a childcare director to the maximum salary achievable in quality assurance, setting aside the potential for free childcare and occupancy bonuses, is a figure of $22,000 per annum, and allowing for additional tax deductions on that sum[135] and using the ATO tax rates for year ended 30th June 2023,[136] the gross differential would, equal a loss as represented below:

Earnings – Quality Assurance Manager

Potential earnings – Childcare Centre Coordinator

Gross yearly earnings

$70,000

$92,000

Tax deductions

$2,619.50

$3,619.50

Yearly taxable income

$67,380.50

$88,380.50

Tax paid[137]

$12,365.33

$19,190.33

Net yearly income

$55,015.16

$69,190.16

Net weekly income

$1,057.98

$1,330.58

  1. [69]
    The plaintiff submits that as a consequence of the neck injury and the consequent inability to pursue employment in the childcare industry and in due course obtain the role of a director of a childcare centre, she would lose in the order of $272.60 net per week, which for a further 31.5 years, until age 67, on the 5% tables (multiplier 839.4) equals $228,820.44.
  2. [70]
    The plaintiff submits that, pursuant to CLA s 55, a global award should be made for future loss of income, and makes the following submissions:[138]
  1. “(a)
    As a consequence of the motor vehicle accident and consequential cervical spine injury [the plaintiff] has been unable to peruse her desired and chosen career path in childcare;
  1. (b)
    It was her intention to work in childcare long term and to become a director of a childcare centre;
  1. (c)
    She is now restricted to performing work of a lighter nature as she is currently doing in the area of quality assurance;
  1. (d)
    The evidence of Dr Labrom, orthopaedic surgeon, is that the plaintiff is restricted in her working capacity as a consequence of her cervical spine injury and cannot return to performing work in the childcare sector.  This evidence is not countered nor challenged by Associate Professor Outerbridge;
  1. (e)
    The plaintiff is unable to point to a specific date by which she would have attained the role of assistant director and then director of [a] childcare centre;
  1. (f)
    Ms Alcott took six years of employment to move into the role of assistant director before being appointed director in the same year;
  1. (g)
    If the plaintiff had obtained permanent employment with Wandilla Magic Childcare Centre in the year of the accident or shortly thereafter she would have [worked in childcare] three years by today;
  1. (h)
    The differential in potential earnings in the order of $272.60 net per week, without discount, equates to a loss of $228,820.44.  Applying the usual discount of 15% would equate to a loss of $194,497.37.  Applying a significant/large discount of 50% would equal a loss of $114,410.22.
  1. (i)
    In addition to the plaintiff’s loss of potential earnings in more senior positions in childcare the plaintiff is, given the extent of her neck injury, given her inability to continue employment with Foodworks post-accident and in light of the opinion of Dr Labrom restricted in the sort of work she can perform and at a disadvantage in the open labour market;
  1. (j)
    The plaintiff ought to be awarded a global sum for disadvantage on the open labour market in addition to the loss of income suffered as a consequence of been unable to pursue her chosen career in childcare.”
  1. [71]
    The plaintiff submits that an appropriate global award for future loss of income is a sum of $175,000 (a discount of approximately 19%).
  2. [72]
    The defendants, on the other hand, submit that in order to be entitled to recover damages for loss of earning capacity, the plaintiff must be able to demonstrate that her earning capacity has been diminished by reason of the negligence-caused injury and that the diminution of earning capacity must be productive of financial loss.[139]
  3. [73]
    The defendant’s submission is that while the plaintiff has proven that she suffered a distinct musculoligamentous cervical spine injury in the motor vehicle collision that might have caused a diminution in her earning capacity, she has failed to prove the second limb of the Medlin v State Government Insurance Commission test, namely, that the accident-related diminution may be productive of economic loss.[140]
  4. [74]
    The defendants identify that the plaintiff, since her promotion in October 2020, has been coping in her current role with Lite n’ Easy without significant problems,[141] and that there is no reliable evidence available for the court to be satisfied that the plaintiff would have generated a greater level of income in childcare, compared to Lite n’ Easy, but for the injuries.  In that respect, the defendants submit that the plaintiff’s understandings as to the pay brackets of what would be available as a Quality Assurance Officer haven’t been proved and are clearly vague;[142] that there is no reliable evidence as to what income the plaintiff could earn in childcare, with her previous experience as of the date of collision being as a casual relief staff worker[143] or casual floater,[144]and that her past earnings with Wandilla Magic Childcare Centre are of no assistance in assessing her notional earning capacity.
  5. [75]
    The defendants submit further that the only purported evidence as to earnings in childcare was from Ms Alcott, who had previously worked in a director position;[145] had not previously earned the $92,000 per annum plus childcare package offered to her in Exhibit 26; and that the offer represented Ms Alcott’s incredible gifts in the role, long term loyalty to Wandilla, her steady hand, incredible emotional intelligence, great leadership ability and contribution to Wandilla.[146]
  6. [76]
    In those circumstances, the defendants submit that the plaintiff is unable to prove that she holds or would be likely to hold any of the qualities that Ms Alcott possesses and that the evidence is insufficient to indicate that the plaintiff’s ambition to be a director of a childcare centre was achievable.  At most, it is submitted that any award for future economic loss ought to reflect no more than a “general disadvantage”.[147]  It is further submitted that the plaintiff is already at a significant disadvantage having previously been compensated with significant sums for prior claims, with a substantial prior shoulder injury, subsequent attendances for a slip and fall incident on 16 February 2022, and in the context of that evidence, and the comparable case law,[148] that an allowance of $20,000, inclusive of any superannuation would be an appropriate allowance for future economic loss.
  7. [77]
    The plaintiff, on the other hand, submits that each of the decisions referred to by the defendants (namely Allianz Australia Insurance Limited v McCarthy [2012] QCA 312, Goodfellow v Clarke [2015] QDC 193 and O'Connor v Wright [2012] QDC 173) involved low level and relatively short-lasting injuries, not requiring significant future treatment, and causing only temporary disruptions to future employment and consequent economic loss.[149]
  8. [78]
    I accept the defendants’ criticism, to some extent, as to the difficulties for this court in seeking to identify the likely trajectory of the plaintiff’s proposed career in childcare, including the likelihood of promotions, in particular to assistant director and director roles, and the potential income to be earned in those roles.  That being said, I consider the evidence from Ms Alcott was persuasive, in that she considered that the plaintiff had the necessary qualities not only to work in the childcare industry, but to gain promotion, and that the offer made to Ms Alcott (which also included substantial free childcare benefits), represents a useful yardstick to calculate future economic loss. 
  9. [79]
    In my view, the appropriate way to deal with the uncertainties and exigencies of predicting the future in these circumstances, given that I accept both the plaintiff and Ms Alcott as truthful, reliable and credible witnesses, is to apply a discount of 33% on the submitted loss by the plaintiff, to reflect, as a global sum, the level of uncertainty about the plaintiff’s future employment and potential loss of income given her inability to progress her childcare career.  Applying that discount to the sum of $228,820.44, and arriving at a global sum, I am of the view that the appropriate award for future loss of income is $150,000.  Future loss of superannuation benefits, it is agreed should be calculated at 11% of that future loss of income, which is a sum of $16,500.

Issue 6: Past Special Damages – whether Ms Towell has, as a consequence of a cervical spine injury, incurred past special damages beyond the agreed amounts (WorkCover refund of $12,213.79 and Medicare charge of $529.45) and if so the extent of such costs.

  1. [80]
    The parties agree that the plaintiff is entitled to be awarded the following amounts by way of special damages:
  • Medical expenses refundable to WorkCover Queensland              $5,344.13
  • Rehabilitation expenses refundable to WorkCover Queensland              $7,211.40
  • Travel expenses refundable to WorkCover Queensland              $60.26
  • Medicare Charge              $529.45
  • Alexandra Hills chiropractic treatment              $1,800.00
  1. [81]
    There are past costs that are disputed. The plaintiff gave evidence that she had been receiving treatment from Ping Ping Healing Hands Massage Therapy for two years,[150] for a period of less than six months the treatment was every three weeks,[151]  and it then extended to every two to three months.[152]Associate Professor Outerbridge gave evidence that such treatment was reasonable.[153] The cost is $85 per session,[154] with an initial allowance for treatment every three weeks for a period of five months at $85 per session equals $510, a further allowance of $85 every 10 weeks for a period of 19 months equals $595 being a total cost of $1,105.  The plaintiff gave evidence that part of that treatment relates to her shoulder in addition to her neck[155] and I accept the submission that it is appropriate to allow half of the costs of that massage therapy treatment (a sum of $552.50).[156]
  2. [82]
    The plaintiff gave evidence that from September 2020 until June 2022 she engaged a personal trainer, Renée Courtney at $90 per week.[157]  The sessions were undertaken at Snap Fitness and the plaintiff paid an extra $33 per fortnight in gym expenses.[158] The plaintiff continues to attend the gym twice a week without the input of the personal trainer focusing on the upper body.[159] The plaintiff gave evidence that she started seeing the personal trainer on the recommendation of her physiotherapist, Mr Ben Tanner,[160] with the aim of strengthening the muscles in her neck and right shoulder.[161]
  3. [83]
    The unchallenged evidence of Dr Labrom is that “postural retraining and strengthening would be of value”,[162]and that the plaintiff “had found great benefit on twice weekly physical training with a personal trainer who was focused on muscle strengthening for both her back and neck.  She has found this to be of very significant benefit [and] this … would be ongoing for the remainder of this person’s adult life as she finds helpful”.[163]
  4. [84]
    It is submitted that the period of September 2020 through to June 2022 is approximately 91 weeks, which, allowing $90 per week for personal trainer costs, $16.50 per week for gymnasium costs, is $106.50 per week over 91 weeks totalling $9,691.50.  Ongoing gym attendance since June 2022 until the current date is 47.1 weeks, at a cost of $16.50 per week, equalling $777.84. The total personal trainer and gym expenses equals $10,469.34.[164]
  5. [85]
    The plaintiff accepts that the treatment for the personal trainer was in respect of both the neck injury (related to the motor vehicle collision) and her right shoulder (prior non-compensable injury) and an appropriate discount of 50% (which I accept) equals $5,234.67.
  6. [86]
    In respect of medication, the plaintiff gave evidence that she consumed Maxigesic once or twice a week, two at a time, Panadol twice a week, two at a time, Neurofen twice a week, two at a time and Mersyndol Forte every six months, at costs of Maxigesic once a month ($10.50 to $13 per box);[165] Panadol once a week at a cost of $4 per box;[166] Neurofen once a week at a cost of $4 per box;[167] Mersyndol Forte every four-six months at a cost of $20 per box,[168] averaging (the plaintiff calculates) $11.87 per week, with the medication to be taken primarily for neck symptoms.[169]  The opinion of Dr Labrom in December 2020[170]was that the plaintiff’s treatment should include the ongoing use of analgesia and some narcotics, an opinion still held in April 2022.[171] Associate Professor Outerbridge considered that the plaintiff’s intake of medication was reasonable given the neck symptomatology.[172]
  7. [87]
    It is submitted, and I accept, that medication costs of $11.87 per week for a period of 193 weeks since the motor vehicle collision equals $2,290.91, being a discount on the plaintiff’s true expenses, as it does not take account of the plaintiff’s greater expenditure on both Maxigesic and Meresyndol Forte for a period of 14 months in the initial period post-accident.[173]
  8. [88]
    The appropriate award for special damages should then be calculated as follows:[174]
  • Medical expenses refundable to WorkCover Queensland              $5,344.13
  • Rehabilitation expenses refundable to WorkCover Queensland              $7,211.40
  • Travel expenses refundable to WorkCover Queensland              $60.26
  • Medicare Charge              $529.45
  • Alexandra Hills chiropractic treatment              $1,800.00
  • Ping Ping Healing Hands – massage therapy treatment              $552.50
  • Personal trainer/gym expenses              $5,234.67
  • Medication expenses              $2,290.91
  • Travel expenses (global sum)              $500.00

TOTAL$23,523.32

  1. [89]
    The interest on this sum, by agreement, is calculated at 1.66% per annum (CLA s. 60), with a total actual out-of-pocket expense being $10,378.08 and interest of $639.31.

Issue 7 future special damages – whether Ms Towell will as a consequence of a cervical spine injury, incur future medical expenses, in particular pharmaceutical expenses, therapy expenses and travelling expenses and if so the extent of such costs?

  1. [90]
    The plaintiff submits for a statistical life expectancy of 51 years, the appropriate multiplier on the 5% tables being 981.6.[175]
  2. [91]
    The plaintiff submits further that she continues to attend on Ping Ping Healing Hands for massage therapy treatment every two to three months at a cost of $85 per visit,[176] a cost of $8.50 per week averaged over 10 weeks.  The evidence of Associate Professor Outerbridge is that such treatment is reasonable given the plaintiff’s symptomatology.[177]  The plaintiff’s ongoing expenditure on massage therapy treatment at $8.50 per week for 51 years on the five per cent tables (multiplier 981.6) equals $8,343.60. I accept the discount of 15% for contingencies and vicissitudes, equalling $7,092.06, but given that the plaintiff accepts that part of the ongoing treatment relates to her shoulder, a 50% allowance equates to $3,546.03.
  3. [92]
    The plaintiff continues to attend on a chiropractor for treatment every six weeks at a cost of $60 per week[178]at an average of $10 per week. Again, Associate Professor Outerbridge accepts that such treatment is reasonable for the plaintiff given her symptomatology.[179]  The plaintiff’s ongoing expenditure on chiropractic treatment for a further 51 years is $10 per week on the 5% tables (multiplier 981.6) equalling $9,816, discounted by 15% for contingencies and vicissitudes, equalling $8,343.60.
  4. [93]
    The plaintiff continues to attend on the gym twice a week at $16.50 per week[180] to work on her upper body.[181]  The evidence of Dr Lebron is that such an attendance, being of benefit to the plaintiff, should continue for the rest her adult life.[182]  The cost of $16.50 per week for a further 51 years on the 5% tables (multiplier 981.6) equals $16,196.40 which, discounted by 15% for contingencies and vicissitudes, equals $13,766.94. However, given the plaintiff accepts that the attendances are not solely in regard of the neck symptoms, it is appropriate to award 50%, equating to $6,883.47.
  5. [94]
    The plaintiff continues to consume medication at a cost of $11.87 per week and Dr Lebron’s evidence is that the plaintiff will continue to require to take analgesia, narcotics and anti-inflammatory medication.[183]  The evidence of Associate Professor Outerbridge is that the plaintiff’s current medication intake is reasonable given her symptoms.[184]  An allowance of $11.87 for a further 51 years on the 5% tables (multiplier 981.6) equals $11,651.59, discounted by 15% for contingencies and vicissitudes, equals $9,903.85.
  6. [95]
    The plaintiff submits and I accept that the appropriate award for future special damages is as follows:[185]
  • Massage therapy treatment              $3,546.03
  • Chiropractic treatment              $8,343.60
  • Gymnasium expenses              $6,883.47
  • Medication expenses              $9,903.85
  • Travelling expenses (global allowance)              $1,000.00

TOTAL$29,676.95

  1. [96]
    The parties agree that pursuant to the principles of Fox v Wood (1991) 148 CLR 438, the plaintiff is entitled to be compensated the amount of tax which was paid to the Australian Taxation Office on her WorkCover weekly statutory benefits and which she has to refund to WorkCover Queensland being $2,090.00.[186]
  2. [97]
    Given the conclusions that I have reached, the appropriate award of damages is as follows:

Head of damage Damages

General damages               $15,300.00

Past loss of income               $41,684.54

Interest on past loss of income               $1,540.06

Past loss of superannuation benefits               $4,168.45

Future loss of income               $150,000.00

Future loss of superannuation benefits               $16,500.00

Past special damages               $23,523.32

Interest on special damages               $639.31

Future special damages               $29,676.95

Fox v Wood damages               $2,090.00

TOTAL DAMAGES$285,122.63

Order

  1. [98]
    I order that the defendants pay the plaintiff the sum of $285,122.63 damages in respect of the motor vehicle collision occurring on 30 August 2019.

Footnotes

[1]  Statement of claim (doc #1), [5]-[8]; Defence (doc #3), [4]; Exhibit 30, [4]; Exhibit 27, [1].

[2]  Outline of the Plaintiff, [2]; Outline of Issues on Behalf of the Second Defendant, [2]; Exhibit 30, [2].

[3]  Statement of claim (doc #1), [1(a)]; Defence (doc #3), [1].

[4]  Exhibit 30, [6].

[5]  Exhibit 30, [7].

[6]  Exhibit 20, p. 2 & Exhibit 21, p. 2.

[7]  Exhibit 20, p. 5 & Exhibit 21, p. 5.

[8]  Exhibit 20, p. 5 & Exhibit 21, p. 6.

[9]  Exhibit 20, p. 5 & Exhibit 21, p. 5.

[10]  Exhibit 20, p. 6 & Exhibit 21, p. 6.

[11]  Exhibit 20, p. 6 & Exhibit 21, p. 6.

[12]  Exhibit 23, p. 1.

[13]  T2-7 l10 – T2-8 l15.

[14]  T2-8 l24.

[15]  Exhibit 27, [5]-[6].

[16]  Exhibit 21, p. 6.

[17]  CLA s 60(1)(a).

[18]  Defence (doc #3) [6(c)(iii)].

[19]  Defence (doc #3) [7(d)(iii)].

[20]  Defence (doc #3) [9]. 

[21]  T1-17 ll20-23.

[22]  T1-19 ll17-41.

[23]  T1-21 l38 – 1-22 l24.

[24]  T1-19 ll17-23.

[25]  T1-24 ll29-44 & 1-20 l16.

[26]  T1-21 l38 – 1-22 l24.

[27]  T1-23 l12.

[28]  T1-23 l15.

[29]  T1-25 l19.

[30]  T2-14 ll37-49.

[31]  T2-14 ll37-49.

[32]  T2-14 ll37-49.

[33]  T2-14 ll37-49.

[34]  T2-15 ll1-37.

[35]  Exhibit 25, p. 203.

[36]  T2-15 ll1-37; Exhibit 25, p. 203.

[37]  Exhibit 23.

[38]  Exhibit 23, p. 8, Q.2.

[39]  Exhibit 20, p. 6; Exhibit 21, p. 6.

[40]  T1-61 l121-23.

[41]  Exhibit 22, p. 2, Q.1.

[42]  Exhibit 22, p. 2 Q.1.

[43]  T1-59 l32.

[44]  T1-59 l35.

[45]  T1-61 l14 – 1-62 l12.

[46]  T1-59 l44 – 1-60 l15.

[47]  Exhibit 22, p. 2, Q.2; T1-60 l22.

[48]  Exhibit 22, p. 3, Q.3.

[49]  Exhibit 22, p. 3, Q.3.

[50]  T1-62 l40.

[51]  T1-63 ll20-47.

[52]  T1-64 l4.

[53]  T1-64 l11.

[54]  Exhibit 18.

[55]  Exhibit 18, p. 3.

[56]  Exhibit 19.

[57]  Exhibit 27 [4(c)(ii)A-F].

[58]  T1-36 l15.

[59]  T1-37 l25.

[60]  T1-27 l14.

[61]  T1-36 l5.

[62]  T1-40 l40.

[63]  T1-40 l45.

[64]  T1-34 l31 – 1-35 l3.

[65]  T1-40 l35.

[66]  Exhibit 27 [4(c)(iii)B-C].

[67]  Exhibit 27 [4(c)(iii)D-E].

[68]  Exhibit 30 [99]-[102].

[69]  Exhibit 30 [99]-[102].

[70]  Exhibit 30 [99]-[102].

[71]  Exhibit 30 [99]-[102].

[72]  Exhibit 30 [103].

[73]  T1-26 l42 – T1-27 l49.

[74]  T1-30 l22 & 1-39 l42.

[75]  T1-39 l45.

[76]  Exhibit 20, p. 4; Exhibit 21, p. 3; Exhibit 23, p. 6.

[77]  T1-59 l12.

[78]  Exhibit 30 [105].

[79]  T1-16 l49.

[80]  T1-17 l33 & 1-22 l127-32.

[81]  Exhibit 2.

[82] Exhibit 27 [10]. 

[83]  T1-22 l27.

[84]  T1-22 l 25.

[85]  T1-22 l34 – 1-23 l10.

[86]  Exhibit 4.

[87]  T1-23 l34.

[88]  T1-19 l43 – 1-20 l6.

[89]  T1-24 l39.

[90]  T1-20 ll8-21.

[91]  T1-32 l14.

[92]  T1-32 ll17-27.

[93]  T-24 ll1-9.

[94]  T1-24 ll10-17.

[95]  T1-25 l43 – 1-26 l4.

[96]  T1-26 ll6-12.

[97]  T1-26 l22.

[98]  T1-17 l17.

[99]  T1-19 ll17-23.

[100]  T1-18 ll18-35.

[101]  T1-19 ll12-41.

[102]  T1-20 l48 – 1-21 l36. 

[103]  T1-61 l23.

[104]  Exhibit 22, p 2, Q1.

[105]  Exhibit 22, p 2, Q1.

[106]  T1-61 l14 - 1-62 l12.

[107]  T1-61 ll29-35.

[108]  Exhibit 20, p. 7, Q5 & 6; Exhibit 21, p. 1, Q2.

[109]  Exhibit 21, p. 6, Q3.

[110]  Exhibit 21, p. 6, Q2.

[111]  T2-18 l35.

[112]  T2-18 l44.

[113]  T2-19 ll3-9; Exhibits 5 & 6.

[114]  T2-19 ll16-33.

[115]  T2-19 l34 – 2-20 l37; Exhibit 26.

[116]  T2-20 l47 – 2-21 l7. 

[117]  T2-17 l49 – 2-18 l16.

[118]  Douglas, R; Mullins, G; Grant, S “Annotated Civil Liability Legislation, Queensland” LexisNexis, 5th edition, 2021 p. 547.

[119]  Exhibit 30 [39]-[46].

[120]  Exhibit 27 [10]-[11].

[121]  Exhibit 3.

[122]  CLA s 55.

[123]  Exhibit 30 [47]-[50].

[124]  T1-32 l14.

[125]  T1-32 ll17-27.

[126]  T1-22 l34 & 1-24 ll10-17.

[127]  Exhibit 20, p. 7; Exhibit 21, p. 6.

[128]  T1-61 l33.

[129]  T1-26 l22.

[130]  T1-26 l35.

[131]  T2-19 l34 – 2-20 l37; Exhibit 26.

[132]  T2-19 ll3-32.

[133]  T2-19 l34 – 2-20 l37.

[134]  T2-20 l47 – 2-21 l7.

[135]  The plaintiff’s average tax deductions in the six years pre and post accident was $2,619.50 (see Schedule of Income per ATO records, Exhibit 3).

[136]  Exhibit 10.

[137]  According to ATO personal rates: Exhibit 10.

[138]  Exhibit 30 [63(a)-(j)].

[139]  Exhibit 27 [12]; Graham v Baker [1961] 106 CLR 340, 347 per Dixon CJ, Kitto and Taylor JJ; Medlin v State Government Insurance Commission [1995] 182 CLR 1; Allianz Australia Insurance Limited v McCarthy [2012] QCA 312, [48] per White JA.

[140]  Exhibit 27 [14]; Medlin v State Government Insurance Commission [1995] 182 CLR 1.

[141]  T1-49 l45.

[142]  T1-26 l35.

[143]  T1-20 l20.

[144]  T1-20 l40.

[145]  T2-18 l35.

[146]  T2-21 l1­ – 2-22 l15.

[147]Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 [9]-[10] per McMurdo P and [71] per Gotterson JA.

[148]Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 (McMurdo P and Gotterson JA adopted an award of $15,000 for the plaintiff who failed to meet the two distinct elements laid out Medlin); Goodfellow v Clarke [2015] QDC 193 (Burnett DCJ adopted an allowance of $20,000 for future economic loss for a young plaintiff dealing with a general disadvantage); O'Connor v Wright [2021] QDC 173 (Moynihan QC DCJ  awarded $17,500 for a young plaintiff with mild whiplash injury almost completely resolved and lower back pain secondary to an aggravation of thoracolumbar scoliosis).

[149]  Exhibit 30 [108] & [109].

[150]  T1-13 l15.

[151]  T1-13 ll34-37.

[152]  T1-13 ll12-44.

[153]  T2-9 l23.

[154]  T1-13 l46.

[155]  T1-13 l21.

[156]  Exhibit 30 [69]-[73].

[157]  T1-14 l7.

[158]  T1-14 ll15-19.

[159]  T1-14 ll31-40.

[160]  T1-14 ll25-29.

[161]  T1-14 l21.

[162]  Exhibit 20, p. 7.

[163]  Exhibit 21, p. 7.

[164]  Exhibit 30 [78]-[80].

[165]  T1-15 l36.

[166]  T1-15 l40 – 1-16 l1.

[167]  T1-16 l4.

[168]  T1-15 l25.

[169]  T1-16 ll34-45.

[170]  Exhibit 20, p. 6.

[171]  Exhibit 21, pp. 6 & 7.

[172]  T2-8 ll30-47.

[173]  T1-16 ll17-30.

[174]  Exhibit 30 [88].

[175]  Exhibit 30, [91].

[176]  T1-14 l42 & 1-13 l46.

[177]  T2-8 l49 & 2-9 l34.

[178]  Exhibit 12.

[179]  T2-9 l36 - 2-9 l41.

[180]  T1-14 l17.

[181]  T1-14 ll31-40.

[182]  Exhibit 20, p. 6; Exhibit 21, p. 7.

[183]  Exhibit 20, p. 6; Exhibit 21, p. 7.

[184]  T2-8 ll30-47.

[185]  Exhibit 30 [96].

[186]  Exhibit 30 [97].

Close

Editorial Notes

  • Published Case Name:

    Towell v Mooney & Allianz Australia Insurance Ltd

  • Shortened Case Name:

    Towell v Mooney & Allianz Australia Insurance Ltd

  • MNC:

    [2023] QDC 130

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    21 Jul 2023

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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