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Park v Nam[2023] QDC 140

DISTRICT COURT OF QUEENSLAND

CITATION:

Park v Nam & Anor [2023] QDC 140

PARTIES:

MINGYU PARK

(plaintiff)

v

SUWOO NAM

(first defendant)

and

ALLIANZ AUSTRALIA INSURANCE LIMITED

(second defendant)

FILE NO:

DC No 1886 of 2021

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

15 to 17 August 2022

JUDGE:

Sheridan DCJ

ORDERS:

  1. The claim by the plaintiff is dismissed.
  2. If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00 pm Friday, 1 September 2023.
  3. If the parties cannot reach agreement as to costs:
    1. the plaintiff file submissions, of no more than four pages in length, excluding any attachments, by 4:00 pm Friday 8 September 2023;
    2. the defendants file submissions, of no more than four pages in length, excluding any attachments, by 4:00 pm Friday 15 September 2023; and
    3. the plaintiff file any submissions in reply, of no more than two pages in length, by 4:00 pm Wednesday, 20 September 2023.

CATCHWORDS:

TORTS NEGLIGENCE where plaintiff was a passenger in a vehicle being driven by first defendant – where second defendant is insurer of the first defendant’s vehicle – where first defendant collided with a dead cow in the middle of the roadway – where plaintiff alleges to have suffered injuries as a result of collision whether collision was caused by negligence of first defendant whether plaintiff sustained injuries as alleged or at all

LEGISLATION:

Civil Liability Regulation 2014 (Qld)

CASES:

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301

Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413

COUNSEL:

Andrew Stobie for the plaintiff

Richard Lynch for the defendants

SOLICITORS:

Rin Kim Law for the plaintiff

McInnes Wilson Lawyers for the defendants

Introduction

  1. [1]
    On the night of 1 May 2020, the plaintiff (Mr Mingyu Park) was a passenger in a vehicle being driven by the first defendant (Mr Suwoo Nam) when it collided with a dead cow lying in the middle of the roadway.
  1. [2]
    The second defendant, Allianz Australia Insurance Limited, is the insurer of the first defendant’s vehicle.

The Plaintiff’s Pleaded Case

  1. [3]
    Mr Park alleges that as a result of the vehicle (a Nissan Tiida) colliding with the cow, he suffered injury to his cervical, thoracic and lumbar spine, left knee and post- traumatic stress disorder and that he continues to suffer from symptoms of the injuries.
  1. [4]
    Mr Park bases his claim on his injuries having been caused by the negligence of the first defendant in:
    1. failing to activate the high beam of the Tiida’s headlights;
    2. travelling at excessive speed, particularly in relation to his ability to perceive the road surface ahead of him;
    3. driving without due care and attention;
    4. failing to keep a proper lookout; and
    5. failing, or failing sufficiently to slow his vehicle when he perceived the Eclipse [a vehicle being driven in the opposite direction] to travel in an erratic manner.
  1. [5]
    The defendants dispute that the accident was caused by the negligence of Mr Nam whether in the manner or in the particulars as alleged or at all.
  1. [6]
    Further, it is denied that Mr Park sustained the injuries alleged on the basis that any injury is unrelated to the accident or was minor or transient in nature and did not give rise to any permanent or quantifiable impairment.

Liability

The Evidence as to the Accident

  1. [7]
    The accident happened on the Boonah Fassifern Road at around 8:10 pm at night. The Boonah Fassifern Road is an unlit two-lane bitumen road with a white centre line marking. The speed limit on the Boonah Fassifern Road is 100 km/h.
  1. [8]
    At the time, Mr Park was being driven from his work at Kalfresh. Mr Park was employed as a cleaner at the Kalfresh Carrot Factory situated at Kalbar (a small town not far from Boonah). Early on the evening of 1 May 2020, Mr Park had been electrocuted at work. Upon reporting the incident, it was decided that Mr Park should be taken to the Boonah Hospital for a medical check. Mr Park was being driven to the hospital by Mr Nam, who was one of the managers at the Kalbar Factory. Mr Nam’s vehicle was a small hatchback, a Nissan Tiida.
  1. [9]
    Both Mr Park and Mr Nam are Korean with limited English. Their evidence and the evidence of two other witnesses called by Mr Park was given through an interpreter. Evidence as to the circumstances of the accident was given by Mr Park and Mr Nam. Mr Nam also called two other witnesses who had been driving on the Boonah Fassifern Road that same evening and had also had a collision with the dead cow.
  1. [10]
    Mr Park gave evidence that after Mr Nam had turned onto the Boonah Fassifern Road, a number of vehicles had passed travelling in the opposite direction. Mr Park said that just prior to the accident he had noticed a vehicle travelling in the opposite direction. Mr Park said that he first noticed the headlights of the vehicle. Mr Park said that he had noticed the car “swerved sideway to our side” and that he then thought it was on the wrong side of the road. Mr Park said that the vehicle stayed in their lane only very briefly, “probably very close to zero time”. He said that car then left the road, after passing the car he was in, on the left of his car. The car landed in a ditch on the left-hand side of his car.
  1. [11]
    Mr Park said that at the time of observing the other vehicle, the vehicle he was in was travelling at around 85 km/h. Mr Park accepted that he told the nurse at the Boonah Hospital that he was a passenger in a vehicle travelling at 60 to 80 km/h. Under cross- examination, Mr Park conceded he could not be a clear judge of speed.
  1. [12]
    Mr Park said that immediately after the other car veered across the road in front of their car that Mr Nam said, “What is that car doing?” Mr Park said that Mr Nam then turned to him and said, “Are you okay?”, and that he asked Mr Nam the same question. He said that the conversation between himself and Mr Nam took about 20 seconds. He said it was not a split second. He said that it was during the conversation that he noticed the cow on the road and said to Mr Nam, “There is a cow in front of us”. Mr Park said that it was at that moment that Mr Nam turned back from looking at him and looked at the road, the car continued forward a bit and then there was the collision.
  1. [13]
    Mr Park said, that after he gave a warning to Mr Nam that there was a cow on the road, “I didn’t have any feeling that Mr Nam actually hit the brake.” He said that he could only guess that he would have hit the brake, and added, “But definitely, I didn’t feel the speed of our car was reducing at any stage.”
  1. [14]
    Mr Park said that the cow would have been between 15 to 20 metres in front of the car when he first saw the cow.
  1. [15]
    Mr Nam said that he first noticed the oncoming vehicle when it was about 50 to 100 metres away. Mr Nam accepted that, in giving his statement to those investigating the crash on behalf of the insurer, he had given an estimate of 200 to 300 metres. When challenged under cross-examination, Mr Nam said, “I was just giving my answers out of my own guessing.” He said he did not think the distance was such an important issue and added, “It’s just a split-second incident. I wouldn’t know exact distance. That’s just how I felt. It’s just guessing, really.”
  1. [16]
    Mr Nam agreed that he was extremely alarmed when he saw the car coming towards him in his lane and that he thought the other driver was drunk.
  1. [17]
    Mr Nam was asked as to whether he applied the brakes as soon as he saw the cow. Mr Nam said that he did brake and that he broke hard. Mr Nam accepted that he was unable to slow the vehicle much before it hit the cow, but he did not accept that he was still doing about 80 km/h when he hit the cow. He said that the speed of his vehicle was reduced.
  1. [18]
    Mr Nam was asked about what speed he was travelling when he first saw the other vehicle and about the speed limit in the area. He said he believed he was travelling at 80 km/h and that the speed limit was 100 km/h. Under cross-examination, Mr Nam conceded that he did not remember exactly but he thought he drove below the speed limit on that section of the road. Mr Nam said that he generally drove below the speed limit because he was concerned about speeding fines.
  1. [19]
    Mr Nam was asked whether he was able to avoid hitting the cow. He said, “I couldn’t avoid the collision… the dead cow was too close to avoid the collision.” He was asked whether he had any opportunity to swerve around the dead cow and he said that he did not.
  1. [20]
    Nr Nam was asked what was the time between when he first saw the headlights of the other vehicle on his side of the road and when he hit the cow. He said, “maybe about five to 10 seconds, I think.”
  1. [21]
    Mr Nam was asked about switching on his high beam. Under cross-examination, it was put to him that leaving aside the incident, it would be safer for a person travelling along that road at 80 km/h to use high beam. Mr Nam answered, “I think that it would be the same whether you have high-beam or not on the road because the issue wasn’t the high beam.”
  1. [22]
    Mr Nam accepted that the risk of not using high beam was that the range of the headlights is less than the stopping distance of his vehicle. In accepting that, Mr Nam added, “But what I’m trying to say is a car was charging towards me, and I was blinded by that, and thought, ‘Oh gee, I’m in big trouble.’ I was a bit shocked and probably nervous, and then I saw a cow.”
  1. [23]
    It was put to him that he had plenty of time before Mr Park said, “There is a cow” to switch on the high beam. Mr Nam replied, “In terms of time, yeah, probably there’s enough time for someone to flick the high beam on. But in the real situation most people would think, ‘Oh, gee, I’m alive,’ rather than, ‘Oh, I have to turn the high beam on,’ in that situation. Would anybody do that?”
  1. [24]
    Mr Nam was then asked as to whether, after thinking “Oh, I’m alive,” he had then turned to Mr Park and asked him if he was okay. Mr Nam was asked repeatedly as to whether that conversation had occurred and whether he was looking to his left and not looking straight. Mr Nam said, “Well, the car was moving so there was no accident. Why would I ask him if he’s okay?” Mr Nam accepted that it was two years ago. He said that he was sure he asked that question after he had hit the dead cow but as to whether it was said when the other car passed, he said, “Because there was no accident, I don’t think I would ask that question.”
  1. [25]
    Mr Nam was also questioned about the recorded version of his statement to police where he stated, “At about the same time, Min has yelled, ‘There’s a cow on the road.’ I looked back and I saw a cow on the road in front of me.” It was put to Mr Nam that his attention had been diverted elsewhere and then he had looked back ahead on the road. Mr Nam explained,

“I was driving, and then the other vehicle jumped on my lane and veered off. And then I thought, ‘Oh gosh, I’m okay.’ Still nervous. Then suddenly there was someone said, ‘There’s a cow on the road,’ and I hit the cow. That’s as simple as that. So the - well, because the other vehicle jumped on my lane and veered off to the left, so my line of vision was following that vehicle to the left, that moment.”

  1. [26]
    He explained further that Mingyu had said, “There is a cow on the road”, so his vision was corrected back ahead of him, straight ahead. He said, “So in a way, that expression, looking back is I corrected my vision back to the road. That’s probably it.”
  1. [27]
    When Mr Nam was asked as to the location of the cow on the road, he said that he “assume[d] that the cow must be lying on the middle of the road.” It was put to Mr Nam that there was plenty of bitumen on the left-hand side of the cow for his vehicle to go around the cow. Mr Nam responded, “I couldn’t avoid collision at that moment.” When it was put to Mr Nam that he did not try to swerve to avoid the cow, he responded, “Well, if I had – if I had done that, it could have been a much bigger accident.” Mr Nam said that what he did when he saw the cow was to brake hard.
  1. [28]
    When asked as to whether his car was airborne after he hit the cow, Mr Nam said that he simply drove over the dead cow. Mr Nam accepted that the vehicle bounced up and down on the road with further jolting after it had hit the cow.
  1. [29]
    Mr Nam did not accept that if he had braked when he saw the oncoming vehicle swerve into his lane, he could easily have stopped before he ran into the cow. Mr Nam explained, “But that vehicle came onto – cross over the lane and then in a split second it veered off the road. That was like a split second, really. So I didn’t have any time to make a – rational decision. I don’t think that no-one can.”
  1. [30]
    Both Mr Park and Mr Nam were taken to the Boonah Hospital to be checked. Each of them were released that night and both then returned to work at Kalfresh.
  1. [31]
    Mr Nam said that he did not suffer any injuries when his vehicle hit the cow. He accepted that his vehicle was towed from the scene and was not able to be driven again.
  1. [32]
    The two other witnesses called by Mr Nam had each hit the dead cow on the road that evening.
  1. [33]
    Ms Susan Hayes was travelling in the other direction on the Boonah Fassifern Road. Ms Hayes gave evidence that she had completed a shift as a cleaner at the hospital at 8:00 pm that evening. She said that she had left the hospital shortly after and was travelling away from Boonah towards her home in Harrisville. She was driving a small hatchback, a Mitsubishi Eclipse.
  1. [34]
    Ms Hayes gave evidence that she would have been “going sort of 60 to 80, something like that.” Her evidence was that the speed limit was probably 80 “but it may have been more.” When asked why she was travelling under the speed limit, she said that she had hit a kangaroo along there and there were hares that run out. She said, “I just try to be a bit careful because… of th[e] particular darkness on the road.”
  1. [35]
    She said she could not remember whether she had the headlights on full beam or low beam but said they would have definitely been on.
  1. [36]
    She said that about four minutes into her journey she was driving and then, “I just – I saw something before I hit it. And it was like something really dark. And I just wasn’t sure what it was. It was too late to do anything. I just had to drive straight over the top of it.”
  1. [37]
    Ms Hayes said the thing was right in her lane and she thought it was covering most of her lane. She said she thought it might have been a boar “because there’s a lot of like wild boars and pigs around there”. She said she thought it was black and that she could not avoid it. She said she thought it was “like about five feet at the very most” away when she first saw it. She said it went under her vehicle. She then “fishtailed all the way along the road” and ended up across the other side of the road. She said, “The car just wouldn’t stop swerving all over the place.” She said, “And then I saw car lights coming towards me.” She said she couldn’t say how far the car lights were away, but she knew they were coming. She said she pulled the wheel onto her right- hand side and “just went down over a big embankment, quite a long way before I stopped, and that was it.” She thought that was the only way she could avoid the car. Ms Hayes said that she had been told by the ambulance that the embankment was “something like 24 metres”.
  1. [38]
    Under cross-examination, Ms Hayes said that in the period before she hit the cow she was looking straight ahead. She said the thing was illuminated by her headlights, but she could not tell it was a cow. She said she did not get a chance to hit the brakes “because I ran straight over the top of it ...and it just pulled me along.” She said she did not think she hit the brakes after she hit it as the car started to swerve but added, “I can’t remember exactly what happened when I hit it. I was in that much shock it wouldn’t have mattered”.
  1. [39]
    Mr Thomas Hunt was also travelling along the Boonah Fassifern Road that night. Mr Hunt was the operations manager at Kalfresh and was travelling home from Kalfresh towards Boonah. He said it was around 8:00 pm. He was driving a V8 Landcruiser, a 79 series, dual cab.
  1. [40]
    Mr Hunt said he had his high beam off because there was a car parked on the side of the road facing towards him. He said that, as he went past the car, there were a couple of people scattered around on the road picking stuff up. He said he glimpsed over at what they were doing and “as I glimpsed back, I ran over something.” He said, “I thought it was something quite large because I felt my car sort of went a fair way in the air.” He said he quickly tried to stop and he pulled over.
  1. [41]
    It was only after he stopped that he noticed the car down the hill. He described that car as a little red hatchback.
  1. [42]
    Mr Hunt said he thought the cow was mostly in his lane at the time. He said he drove straight over it. He said, “I didn’t even have a chance to swerve.” He said it was only after being shown the police photos he realised the cow was sort of half in his lane and half in the other lane.
  1. [43]
    Mr Hunt said he was someone who would ordinarily use his high beam but that he did not have them on because “there was a car.” In re-examination, he was questioned further about the use of his high beam, and he confirmed that he had switched them off when he had seen the vehicle on the road. When asked as to whether he had observed anything on the roadway when he had his high beam on, he said, “No.”
  1. [44]
    He estimated that the car being driven by Mr Nam would have been about 100 to 150 metres from the cow.
  1. [45]
    Mr Hunt said he volunteered to drive Mr Nam and Mr Park to the hospital. He said he was a higher manager in the business, and he thought “it was the right thing to do to get him checked out.”

Findings as to Factual Contest

  1. [46]
    I found Mr Nam to be a careful witness, who listened to the questions put to him and gave considered answers. It was clear at times that he was frustrated by the questions being asked and the particular focus on certain matters.
  1. [47]
    I considered that both Mr Nam and Mr Park were prepared to make concessions and in the end there was little difference in the evidence given. The major point of difference was whether there was a conversation between them after the oncoming vehicle had veered off the road.
  1. [48]
    On the balance of probabilities, I consider that it is more likely the conversation occurred after the vehicle had collided with the cow, rather than after the oncoming vehicle had passed their vehicle and veered off the road. As Mr Nam observed, why would he be asking if Mr Park was okay at that moment.

Finding as to Liability

  1. [49]
    One of the allegations of negligence can be dealt with quickly, and that is the allegation that Mr Nam should have used the high beam of his headlights. It cannot be suggested that Mr Nam should have used the high beam prior to the other vehicle crossing over onto his side of the highway, as clearly that would have created a dangerous situation for Ms Hayes in the Eclipse. Whether or not he should have used the high beam prior to that event is irrelevant as it is not suggested that the high beam would have detected the cow on the roadway.
  1. [50]
    Mr Park is therefore limited to arguing that as soon as the Eclipse passed his vehicle, he should have turned on the high beam; or back on, if he had used them before the incident. The evidence is that the path of travel of Ms Hayes was a significant distraction; as it well might have been. It all obviously happened very quickly. I doubt if I can place much reliance on the evidence of Mr Park that the time between the vehicle swerving in front of the Tiida and the Tiida hitting the cow was 20 seconds, but assuming that to be so, it gives little time for Mr Nam to react from the vehicle travelling in front of him and think to switch on the high beam, let alone actually doing so. If I accepted Mr Nam’s evidence on the point, that the time difference was five to 10 seconds, there is even less time for the action advocated to have been performed.
  1. [51]
    As to the speed of the vehicle the evidence is that immediately prior to these events Mr Nam was driving well below the speed limit of 100 km/h. Mr Park estimates that the speed was 85 km/h. At the hospital he estimated the speed as between 60-80 km/h. There is no suggestion that either version was based on his view of the speedometer. Mr Nam said the speed was 80 km/h. The road was relatively straight at the point of impact. It was dark, but only because it was night-time.
  1. [52]
    Immediately prior to the collision with the cow, it is alleged there was a conversation between Mr Park and Mr Nam about the vehicle coming onto their side of the roadway. Whilst I have not found that conversation to have occurred, it would seem that Mr Park saw the cow before Mr Nam, and it is suggested that by the conversation Mr Nam deprived himself of the opportunity to perceive the cow in order to take evasive steps. Related to this submission is that Mr Nam failed to break or slow down when he saw the Eclipse or so as to avoid the cow.
  1. [53]
    Mr Nam said that he did brake when he saw the cow. He made a similar statement to the police shortly after the events. Again, the events obviously happened too fast to enable Mr Nam to react in sufficient time to avoid the cow.
  1. [54]
    It will be recalled that Mr Hayes had a similar problem. Mr Hunt’s evidence was that he did not even see the cow.
  1. [55]
    A driver is expected to act with reasonable care and skill.[1] This requires the driver to give reasonable attention to all that is happening on and near the roadway that may present a source of danger.[2] The mere fact of a collision is not of itself evidence of negligence.[3] In my view there is no evidence that Mr Nam derogated from his duty. He acted as an ordinary, prudent person would in the situation that confronted him.
  1. [56]
    There is no basis for a finding of negligence, and the claim is dismissed.

Quantum

Extent of Mr Park’s Injuries

Mr Park’s Evidence

  1. [57]
    Mr Park said that upon returning to work, he started to have pain in his body. He said that his neck and lower back first gave him pain and then, a little bit later, his shoulders and knee. He said he did not mention the pain to others. He said he went home and that he did not work a full shift.
  1. [58]
    He said when he woke the next day, the pain level had become more severe. He said the next day he felt painful symptoms “everywhere”. He then described it as, “Neck, shoulders, the lower back and the knee.” When asked, he clarified that it was the left knee.
  1. [59]
    Mr Park was unable to say whether he went to work the next day, saying that he often went into work but was not paid and that he had to often go into work to tell others how to clean certain equipment at the factory.
  1. [60]
    When asked whether the symptoms of pain he experienced immediately after the accident continued, he said yes and added, “that’s the reason I stopped working.”
  1. [61]
    He said he attended upon a GP. He said he was recommended to take painkillers and to obtain a brace for his knee and was referred for physiotherapy. He said he took the painkillers, obtained the brace for his knee and attended physiotherapy around two times each week.
  1. [62]
    He said he was receiving physiotherapy from the first physiotherapy provider for about four or five months. He said his symptoms improved until he started on what WorkCover evidently described as “suitable duties” working as a chef at a Korean restaurant in Brisbane. He said he started initially working three days and then the hours increased. He then moved to the Gold Coast and obtained another job working as a chef at a restaurant doing what was again described as “suitable duties”. He said that he continued with physiotherapy and painkillers.
  1. [63]
    Mr Park obtained a full clearance from WorkCover around April 2021 and worked at a Japanese restaurant as a chef. He said that he initially worked 40 to 45 hours but reduced it to 20 to 30 hours because he found it difficult on his body. He said that if he stood for a long time he would have pain in his knees, shoulder, upper back and lower back. He said that he became head chef in August or September, working six to seven days a week and between seven and eight hours per day.
  1. [64]
    On 21 June 2022, Mr Park changed his place of work to a western-style restaurant in Brisbane, originally doing kitchen duties. He said that he had to walk a lot and was having lower back, leg and knee problems. He said that he had not decided whether to stay in Australia or return to Korea, though he thought he would return to Korean or Japanese cuisine.
  1. [65]
    Mr Park said that before the accident he enjoyed badminton and sports fighting, swimming, soccer, volleyball, tennis and table tennis. He said that he tried to play soccer again, but he had pain after playing five minutes and stopped. He said that when he went back to full capacity work, he had pains, so “I didn’t want to try.”
  1. [66]
    At the time of the trial, he said that he had neck pain every day and was suffering from lower back pain and left knee pain. He said that he did not have any days when he was pain free.

Other Witnesses

  1. [67]
    Mr Park called two witnesses who worked with him after the collision. One of them could recall him complaining about neck or back pain around two to three times a week. This witness said he sometimes needed help to lift heavy objects. The witness was asked about him leaving work early and said that Mr Park did so. Sometimes this was because he had pain or was not feeling well, but other times because of the restaurant’s circumstances. The same witness conceded that it would not be unusual in the kitchen for workers to complain of neck or back soreness.
  1. [68]
    Mr Park also called his sister who had worked with him at both the Korean and Japanese restaurants. Whilst working at the Korean restaurant, she said that she could not recall whether she heard him complaining of neck or back pain. At the Japanese restaurant, she said that she observed that if his shift went longer than two hours, he physically felt difficulty continuing with the shift and he had to take medication. She said she also saw him having difficulties lifting heavy items from the floor. She said she recalled him finishing work early. When asked for the reasons, she said:

“As far as I know, it was due to his personal conditions. He had pains. Most days when it was raining or the weather was not good, that happened.”

  1. [69]
    None of this is very convincing, and the last piece of evidence quoted confirms that.

Expert Evidence

  1. [70]
    Mr Park called Dr Malcolm Wallace, an orthopaedic surgeon. Dr Wallace examined Mr Park on 19 January 2021. Examination of his cervical spine, thoracic spine and lumber spine revealed some tenderness. There was a full range of movement in forward flexion and extension. Lateral flexion to the left was 40 degrees, lateral flexion to the right was 40 degrees, lateral rotation to the left was 50 degrees and lateral rotation to the right was 70 degrees. There was a full range of movement on examination of the left knee, but some patellofemoral pain on compression.
  1. [71]
    In the opinion of Dr Wallace, Mr Park sustained acceleration/deceleration injuries to his cervical, thoracic and lumbar spine in the collision which resulted in chronic musculoligamentous injuries.
  1. [72]
    Dr Wallace considered that on the basis of the non-uniform loss of motion in his cervical spine, Mr Park had DRE Category II impairment of between five and eight percent. He considered that there was an elevation to seven percent whole person impairment based on the adverse effect Mr Park’s injury had upon his work, sport and leisure activities.
  1. [73]
    Dr Wallace, however, conceded in cross-examination that if Mr Park had a range of cervical rotation on the left and right of 90 percent with nil pain, as appeared in the physiotherapy notes from 6 October 2020 to 5 November 2020, Mr Park would not qualify under DRE Category II.
  1. [74]
    Dr Wallace opined that there was a DRE Category I impairment of the thoracic and lumber spines, but it did not attract an impairment rating.
  1. [75]
    As regards his knee, Dr Wallace considered that Mr Park had suffered some anterior knee pain which was likely due to post-traumatic chondromalacia patellae. He did not attribute Mr Park’s current left knee pain to a pre-existing condition. He considered that Mr Park would continue to suffer some ongoing left anterior knew pain with activities. Using table 17-33 of the guides, on the basis of the cruciate ligament laxity, there was a seven percent whole person impairment.
  1. [76]
    The insurer called Mr Bruce McPhee, a spinal surgeon who examined Mr Park on 30 March 2021, a few months later than Dr Wallace. Dr McPhee recorded Mr Park complaining of neck, lower back and bilateral buttock pain and pain in the left knee. Movements of the lumbar spine were normal and lateral flexion was symmetrical. Examination of the cervical spine showed no muscle spasm, focal tenderness or deformity. There was minimal restriction of movements and movements were symmetrical. Examination of the shoulder showed no deformity, swelling or muscle atrophy. The range of movements was symmetrical. There was no effusion or muscle atrophy of the knee. The knee was clinically stable. X-rays of the knee done on 8 May 2020 showed postoperative changes from the ACL reconstruction. A small effusion was evident. There was minor sclerosis at the margins with early degeneration.
  1. [77]
    Dr McPhee diagnosed Mr Park as suffering a soft tissue strain in his cervical spine, a soft tissue strain in his lumber spine and a contusion of his left knee, which was an exacerbation of a pre-existing condition. He thought that it was conceivable that Mr Park may have an incapacity for heavy work but said there was nothing in the examination which would preclude him from undertaking light or medium work.
  1. [78]
    Dr McPhee said that based on his examination Mr Park would be classed as having a DRE Category I impairment of the cervical spine by virtue of him having symptoms without objective evidence of asymmetric movement, non-verifiable symptoms or neurological deficit to upgrade the impairment rating. In accordance with table 15-5 of the AMA Guides, this equated with a zero percent impairment. Dr McPhee reached a similar conclusion as regards the lower back pain and the left knee pain. Dr McPhee did add, however, that the impairment ratings are not an assessment of pain or disability. The absence of assessable impairment did not imply an absence of pain or disability, it merely reflected an absence of objective evidence of impairment in accordance with the criterion laid down in the guides.
  1. [79]
    Both doctors accepted in cross-examination that if Mr Park had presented to them as he had presented to the other doctor their diagnosis would be the same as the other doctor. Both accepted that his condition could vary from day to day.

Findings as to Injury

  1. [80]
    There is accordingly little to be gained by basing any findings as to Mr Park’s cervical spine injury purely on the medical evidence. It is instructive, however, that on multiple occasions whilst Mr Park attended physiotherapy that he was assessed as having a symmetrical range of motion in his cervical spine. Those assessments, together with my own observations of Mr Park, make it difficult to find that, on the balance of probabilities, there was the impairment as assessed by Dr Wallace.

General Damages

  1. [81]
    Counsel for Mr Park submitted that the relevant items for assessment of general damages under the Civil Liability Regulation 2014 (Qld) were item 88 (moderate cervical spine injury) with an ISV range of 5 to 10, item 94 (minor thoracic or lumbar spine injury) with an ISV range of 0 to 4 and item 140 (minor knee injury) with an ISV range of 0 to 5. He submitted that the dominant injury was the cervical spine injury with an ISV range of 5 to 10 and advocated for an ISV of 9; taking into account that there were multiple injuries.
  1. [82]
    Counsel for the insurer submitted that the relevant items were item 89 (minor cervical injury), item 94 (minor thoracic or lumbar spine injuries) and item 140 (minor knee injury) and advocated for an ISV of 4.
  1. [83]
    The objective evidence does not support a finding that Mr Park suffered a moderate cervical spine injury. Although Mr Park did not complain of headaches, he certainly complained of neck pain. Dr McPhee said that the cervical injury was stable.
  1. [84]
    Although Dr Wallace seemed to indicate that the injury to the knee was more than an exacerbation, I accept Dr McPhee’s opinion on that aspect of the injury.
  1. [85]
    Taking into account the minor knee injury, I assess damages using an ISV of 4; giving a value of $6,320.

Past Economic Loss

  1. [86]
    Mr Park was unable to continue his employment at Kalfresh but obtained work in his former occupation as a chef on 24 February 2021; a period of approximately 42 weeks.
  1. [87]
    On behalf of Mr Park, it was submitted that this should be calculated based on the last six months’ income, which was an average net earnings of $951.88 per week; a loss of $39,978.96.
  1. [88]
    Mr Lynch, on behalf of the insurer, submitted that regard should be had to Mr Park’s earnings over the two years prior to the collision and assessed it as being no more than $500 per week.
  1. [89]
    There is, in my view, no basis to proceed with that methodology. There is nothing to indicate that Mr Park would not have continued to work at Kalfresh for at least the period of his incapacity after the collision. Since returning to work, Mr Park has had a good work history, and a renumeration which exceeded that postulated by Mr Lynch. WorkCover treated him as incapacitated until 25 February 2021.
  1. [90]
    Damages for past economic loss are assessed on that basis and in the amount submitted; namely $39,978.96.

Past Interest and Superannuation

  1. [91]
    Interest on the amount of $10,544.76, being the amount of past economic loss of $39,978.96 less the amount of the WorkCover benefits paid of $29,434.20, over nearly 2.5 years at 3.974 percent[4] is about $1,040.
  1. [92]
    Superannuation contributions lost on the amount of past economic loss, at the agreed rate of 9.5 percent, is $3,798.

Future Economic Loss

  1. [93]
    On behalf of Mr Park, it was submitted that his previous difficulties at work, his tendency to work more slowly, his inability to work a full shift, his tendency not to accept extra hours and his inability to engage in manual employment entitled him to a global award for loss of earning capacity of $150,000.
  1. [94]
    It is true that his past history suggests that Mr Park may suffer some loss of income in the future as a result of the injury. On the other hand, I am far from convinced that Mr Park suffers the pain and limitations of which he complains. Albeit that Dr McPhee’s observations of Mr Park were different to those of Dr Wallace when he saw Mr Park, those observations are consistent with most of the observations which occurred at the time Mr Park was receiving physiotherapy. Dr McPhee thought that Mr Park was capable of performing the work he was currently performing. Mr Park has had a steady stream of work and earnings since he went back to work. Mr Park's own evidence suggests that will be the work he will continue to perform, and I have no real reason to consider that there is a real chance that he will suffer a loss of income in the future.
  1. [95]
    Taking into account the possibility, however, of that occurring, a suitable global sum would be $25,000; the sum suggested, if an award were to be made, on behalf of the insurer.
  1. [96]
    The loss of future superannuation on that sum, at the agreed rate of 11.5 percent, is $2,875.

Other Past Losses

  1. [97]
    Mr Park claims the amount of $520.69 for Thai Massage. I am not convinced, however, that it was required as a consequence of the collision.
  1. [98]
    The expenses paid by WorkCover, and required to be repaid, are $16,236.96.
  1. [99]
    The Fox v Wood amount is $14,160.

Other Future Losses

  1. [100]
    There is a claim for future painkillers of $4,549.50, calculated at $5 per week, and $8,753.24 for physiotherapy, calculated at $9.62 per week; both until the age of 67 on the 5 percent tables. There is a small chance of these expenses being incurred as a result of the injury, so it would be reasonable to allow a global sum of $3,000.

Summary

  1. [101]
    In summary, had Mr Park been successful in his claim he would be entitled to damages in the amount of $112,408.92.

Orders

  1. [102]
    As I stated previously, the order which follows is that the plaintiff’s claim is dismissed.
  1. [103]
    I will make orders for the parties to make submissions on costs, unless costs can be otherwise agreed between the parties.

Footnotes

[1]Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413, 415 [11] to [13].

[2]Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413, 415 [11].

[3]Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301, [13].

[4]The current 10-year Treasury bond rate published by the Reserve Bank of Australia as stipulated by s 60 of the Civil Liability Act 2003 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Park v Nam & Anor

  • Shortened Case Name:

    Park v Nam

  • MNC:

    [2023] QDC 140

  • Court:

    QDC

  • Judge(s):

    Sheridan DCJ

  • Date:

    17 Aug 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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