Cho v Hui[2023] QDC 155

DISTRICT COURT OF QUEENSLAND

12. Introduction

12. [1]
    In November 2020, the plaintiff and the first defendant were involved in a motor vehicle accident. The plaintiff claims he sustained injuries to his neck, shoulders and lower back.  In August last year, the plaintiff commenced this proceeding against the defendants for damages and other orders.  Liability has been admitted but quantum remains in dispute. The assessment is governed by the provisions of the Civil Liability Act 2003 (Qld) (‘the Act’) and the Civil Liability Regulation 2014 (Qld) (‘the Regulation’).

12. [2]
    In April and May this year the trial was heard over three days.  The first language of the plaintiff and his wife is Korean.  They gave their evidence with the assistance of an interpreter.  The only other lay witness to give evidence was the first defendant.  Expert evidence was given by two orthopaedic surgeons, namely Drs Wallace and Fitzpatrick.  

12. [3]
    Detailed written submissions have been provided by the parties.  They were supplemented with oral submissions. Paragraphs 84 to 87 of the plaintiff’s submissions clearly do not relate to this matter. They refer to a female plaintiff and discuss the evidence of doctors and other witnesses who did not give evidence at the trial.  They also talk of the plaintiff having an associate degree in engineering and the completion of further studies, none of which was based on evidence in this matter.

12. [4]
    The parties differ widely in their submissions as to whether the plaintiff continues to have symptoms causally related to the accident.  The awards of damages contended for by the plaintiff and defendants are in the respective sums of $263,359 and $5,274.89.  The plaintiff has claimed to suffer an exacerbation of a pre-existing neck condition and a spinal injury.  While his neck related symptoms were initially acute, there is no dispute that they have now resolved.  The dispute relates to the claimed spinal injury.   The defendants contend that the plaintiff either did not suffer a spinal injury, or alternatively, it was of a temporary nature and has resolved.  

12. [5]
    In paragraph 6 of the statement of claim, the plaintiff claims to have suffered psychological injuries.  This claim was not pressed at the hearing.  In the plaintiff’s written submissions, the claim for general damages includes groin pain and other symptoms referable to the plaintiff’s hip.  This does not form part of the plaintiff’s pleaded case. Further, neither orthopaedic surgeon considered there was a causal relationship between these symptoms and the accident.    

12. Plaintiff’s credibility 

12. [6]
    The principal credibility issue in this trial is whether the plaintiff was an honest and reliable witness.  He bears the onus of proof to satisfy the court on the balance of probabilities that his evidence about the ongoing effects of the accident on him should be accepted. I am cognisant of the need to exercise caution in drawing conclusions about the credibility of the plaintiff substantially from his demeanour in the witness box.^[1]  It is but one of the considerations.  This is particularly important in a case such as this, where English is not his first language, requiring him to give some of his evidence through an interpreter. It is necessary to also look to the objective facts, the contemporaneous documents and the inherent probabilities.

12. [7]
    The defendants are critical of the honesty of the plaintiff.  I am not persuaded by this.  It was my impression that he sought to answer questions directly and forthrightly and was endeavouring to give an accurate account of himself.  I do not accept the suggestion that he was being evasive in his evidence as to the timing of his first attendance upon his lawyer, relative to his attendance upon Dr Kang. This submission assumes a level of calculation on his part, which is inconsistent with my impression of him.  He did not present as someone who was likely to give a deliberately dishonest account of the consequences of the accident for personal gain.  

12. [8]
    In addition, the defendants urge upon me a reluctance to accept the plaintiff’s evidence as completely reliable.  I accept this submission, although it is an apt observation in relation to each of the lay witnesses. It is unsurprising that none of them had perfect recollections of each of the matters about which they testified.   They were attempting to recall details of events that occurred more than two and a half years earlier.  The plaintiff frankly conceded that he could not recall the chronology of the onset of his symptomatology, nor his attendance upon health practitioners for treatment. 

12. [9]
    It is contended by the defendants that the plaintiff gave inconsistent evidence about the circumstances of the accident and had a poor memory of its aftermath. It is said that because of this the first defendant’s recollection ought to be preferred.  While I accept that the plaintiff had no reliable recollection for example, of where he stopped the Camry immediately following the collision, I do not accept that it necessarily follows that the first defendant’s evidence about what happened ought to be preferred.  It is difficult to accept that the plaintiff or first defendant are entirely right or wrong in their respective recollections. Not only is there the passage of time, but also the accident happened quickly and unexpectedly for both witnesses.  It would seem likely that in the aftermath of what occurred, each of them has persuaded themselves about how it occurred and how events unfolded immediately thereafter.  An example of a mistaken recollection of the first defendant is his evidence that he first saw the Camry as it was turning left from Milton Road into Baroona Road.   I am satisfied that the Camry had in fact been travelling in the opposite direction on Milton Road, prior to making a right hand turn into Baroona Road.

12. [10]
    The defendants also point to inconsistent evidence given by the plaintiff about his recreational activities.  The plaintiff’s evidence about these activities did not cause me significant concern regarding his credit.  I accept his evidence that he is conscious of the need to keep physically active.  I have no reason to doubt his evidence that he continues to play tennis, but not on a regular basis.  As to his golf, while he may have started playing it slightly more frequently since the accident, he explained that he can no longer drive the ball the distances that he could pre-accident.   None of this is inconsistent with the plaintiff’s ongoing injuries which are discussed below.

12. [11]
    Submissions about the plaintiff’s credibility have been made by the defendants based on the entries in the records of the various doctors and physiotherapists.  While the records are undoubtedly important, there are several reasons to be mindful of their limitations.  First, they are generally short, cryptic and made for the purpose of dealing with the presenting problem and not for providing full information for a forensic analysis of causation for examination later by a Court. Second, the difficulty in drawing an inference about the plaintiff’s credibility principally from documented out of court statements he has made to various health professionals, is that there is too much uncertainty about the way in which the health professional put the question, or the way in which the plaintiff may have perceived the question.  Third, it is not known whether the answer recorded is an accurate summary, and whether any inaccuracy is attributable to the plaintiff or the health professional who recorded it.  Fourth, is the significance of the symptom to the plaintiff at the relevant time, in the context of other symptoms he was experiencing.  As Dr Fitzpatrick explained, if a person has pain in one area of their body, it will take their attention away from pain in another area of their body.^[2]

12. [12]
    I have made findings of fact below which are necessary to determine the issues between the parties.

12. The accident

12. [13]
    There is no factual dispute about the following matters:

3. (i)
   The plaintiff was working as a rideshare driver on the afternoon of 20 November 2020 and was driving a Toyota Camry, registration number 009-XKO (‘the Camry’).  He was wearing a seat belt.   There was a passenger in the rear of the Camry.

3. (ii)
   A relatively short distance prior to the collision, the Camry had entered Baroona Road from Milton Road at Milton and was travelling in the kerbside lane.^[3]

3. (iii)
   The first defendant was the driver of a Toyota Hilux, registration number 068-ZJQ (‘the Hilux’) that had been stationary in an angle parking bay next to the kerbside lane in which the Camry was travelling.

3. (iv)
   The Hilux reversed out of the angle parking bay and collided with the Camry causing the damage to the Camry depicted in exhibit 1.^[4]

3. (v)
   The damage depicted includes the rear panel of the Camry having been dented by the force of the impact. 

3. (vi)
   The Hilux did not require any repair work.

3. (vii)
   The passenger in the Camry did not remain at the scene after the collision, having walked to where the plaintiff had planned to drive her.   

12. [14]
    It was the evidence of the plaintiff that he had been travelling outbound on Milton Road and turned right into Baroona Road.  He was dropping his passenger off to her destination, which was only approximately 200 to 300 metres from that intersection. His attention was focussed on the directions displayed on his mobile phone, which was sitting in a holder in front of him on the right side of the dashboard.   It was while he was focussed on this that the collision occurred.   This came as a shock to him.   He described the impact as being “not very big”.^[5]He felt “a little bit” of a shake which he thought had involved a movement of his body from left to right.^[6]  He estimated his speed at the point of impact to have been approximately 40 to 50 kilometres per hour.  

12. [15]
    The first defendant had been parked in the angle car park. As he was reversing out, he was looking for traffic over his left shoulder.   He said that he observed the Camry travelling at approximately 30 to 40 kilometres per hour and he thought that it might have been slowing down.   After he thought the Camry had passed him, he took his foot off the brake.  Because there was a slight slope in the road, the Hilux slowly reversed back, without the first defendant placing his foot on the accelerator.  He felt a slight impact when the vehicles collided.  He drove forward again into the carpark.  The first defendant explained that the damage to the Hilux was limited to a scrape on the bumper bar and that some paint from the Camry had been left on the towbar.  

12. [16]
    In paragraph 32 of the defendants’ submissions, it is contended that the plaintiff’s failure to call the passenger in the Camry should lead to a Jones v Dunkel inference that the passenger would not have assisted the plaintiff’s case.   I am not minded to draw such an inference.  The passenger was simply using an Uber service and had no relationship with the plaintiff.  She left the scene in the immediate aftermath of the accident.  

12. [17]
    It is pleaded in paragraph 2(c)(iii) of the defence that the collision occurred at slow speed.  This was expanded on in cross-examination where it was suggested to the plaintiff that just prior to the collision he was travelling at approximately five to 10 kilometres per hour. Dr Wallace was cross-examined that the Camry was almost “coming to a stop”.^[7]   In my view, the evidence does not support the drawing of such an inference for several reasons.  First, the plaintiff denied that he was travelling at such a low speed.   Second, the first defendant saw the Camry travelling on Baroona Road and estimated its speed to have been in the vicinity of 30 to 40 kilometres per hour.  Third, it would seem unlikely that the Camry was travelling at such a low speed given the distance it had travelled from its stationary position at the intersection.  Fourth, there was no logical reason for the Camry to have slowed down to almost to being stationary, given that the drop off location for his passenger was still approximately 100 metres further down Baroona Road.   Fifth, in the absence of appropriate expert evidence, I am not satisfied that such an assumption can be made by reference to the damage to the Camry depicted in the photographs in exhibit 1.  Further, the photographs show that the damage to the Camry was not limited to a simple scrape.  It is can clearly be seen that the force of the impact was sufficient to have dented the rear panel on the passenger side of the Camry.  

12. Injuries sustained in the accident

12. [18]
    The plaintiff bears the onus of establishing the injuries suffered in the accident and the ongoing effects of them.  He claims to have suffered headaches and soft-tissue injuries to his neck, shoulders and lower back as a consequence of the accident.  It is claimed that he continues to experience headaches and lower back pain radiating into his right buttock and leg.  The back pain is said to be worse with bending, lifting and twisting and adversely affects his sleep. 

12. Whether neck injury and headaches

12. [19]
    The plaintiff has a history of neck related symptoms which predate the accident.  He lived in Singapore between 2011 and 2018 and towards the end of his time there he noticed that he had pain in his neck.  He returned to Australia in late 2018 and sought treatment for it.  On 3 October 2018, he attended upon the Myhealth Garden City practice (‘the Garden City practice’) and saw a general practitioner complaining of neck stiffness over the previous two years.  The records indicate that the plaintiff reported that it was painful to turn his neck to the left and when sleeping.  He also had left arm radiculopathy.  An MRI of the plaintiff’s cervical spine was requested, and this was undertaken on 11 October 2018.  It showed a left C5/6 foraminal disc protrusion, causing severe left neuroforaminal narrowing and compression of the left C6 nerve root.  

12. [20]
    On 25 October 2018, the plaintiff returned to the Garden City practice.  The results of the MRI scan were discussed and it was suggested that he consult a neurosurgeon.  He was provided with neurosurgical referrals. Further, he was prescribed medications and referred for physiotherapy.   On 22 and 24 December 2018 and 9 January 2019, the plaintiff attended upon Stephen Chai, physiotherapist for treatment of his neck symptoms.

12. [21]
    When reviewed at the Garden City practice again approximately one week later, the plaintiff reported that his neck was improving but that it was still stiff when turning it to the left.  He also reported that the numbness down to his mid arm was improving.   

12. [22]
    The plaintiff was assessed at the Princess Alexandra Hospital (‘the PAH’) physiotherapy-led Back Assessment Clinic on 13 February 2019. He reported a one year history of insidious onset of neck pain with sleep disturbance. He complained of constant varying suprascapular pain on his left side and intermittent paraesthesia of the posterior aspect of his left upper arm.   He said that his symptoms were aggravated by turning his head to the left, lying prone with his head turned to the left, or being in a sustained position.   The pain was waking him two to three nights per week.   It was considered that there was no need for an urgent surgical opinion. He subsequently attended several sessions of physiotherapy at the PAH.  

12. [23]
    On 24 July 2019, the plaintiff reported that he had been pain free until he played tennis a few days earlier.  The clinical impression was of an acute flare up of his neck pain.  It was recommended that he attend further physiotherapy, which he did.  When reviewed at the PAH on 15 October 2019, the plaintiff’s pain was mostly in the back of his neck.  He was treated by the physiotherapist.  He was given further exercises.  On the same day, the plaintiff attended upon a general practitioner at Complete Care (‘the Complete Care practice’) for a commercial driver license examination relating to his work as a ride share driver.  He reported nil medical history.  

12. [24]
    After the accident, the plaintiff reported ongoing problems with his neck.  Later that day after returning home, he noticed the onset of a headache, which he described as “really serious”.^[8]  He took two to three Panadol and some Nurofen about three hours later.  He could not recall what he did the following day, although he said that he had pain all over his body, particularly his neck and left shoulder. 

12. [25]
    The plaintiff first attended upon a medical practitioner four days following the accident, on 24 November 2020, when he saw Dr Ngo at the Complete Care practice.  He told the doctor that on the night of the accident he noticed some neck pain radiating down his left shoulder with an associated tension headache.  He further said that since then he had felt some neck and upper back pain and tension.  He was prescribed analgesics. 

12. [26]
    About a week later, the plaintiff attended upon Daniel Han, physiotherapist.  It appears from the records that the plaintiff complained of pain in his cervical spine and occasional headaches, with referred pain to his right shoulder.  While the notes are not easy to interpret, it seems that the treatment provided largely related to the plaintiff’s cervical spine. 

12. [27]
    On 1 December 2020, the plaintiff attended upon Dr Kang at My Clinic.  The plaintiff explained in evidence that he attended upon Dr Kang as he was Korean and he had been recommended by a friend.  The plaintiff reported a gradual onset of headaches and neck and shoulder pain. He said that he had seen another general practitioner and had received physiotherapy.  Dr Kang provided a medical certificate to the plaintiff certifying him unfit for work until 7 January 2020.  Dr Kang also prescribed him Mobic and Norgesic.

12. [28]
    Mr Han provided further physiotherapy treatment to the plaintiff on 7 December 2020.  The records seem to indicate that at this time the plaintiff reported the pain in his cervical spine was feeling better.  He attended upon the Complete Care practice on 14 December 2020.  He saw Dr Tee.  The plaintiff reported ongoing neck pain and was referred for further physiotherapy treatment with Mr Han.  He was also given a GP Management Plan.   On 5 January 2021, the plaintiff reattended upon Dr Tee. He reported that while he still had neck pain which was worse in the morning, that it had improved.  The plaintiff attended upon Mr Han for physiotherapy treatment on 9, 16 and 23 February 2021.  It seems that at least some of those treatments were directed at relieving his neck symptomatology.  On 16 June 2021, the plaintiff attended upon Mr Chai for physiotherapy treatment. He told Mr Chai about the accident. As to the onset of symptoms, the plaintiff said that while he had initially had severe headaches, they had reduced to two to three times each month. 

12. [29]
    Dr Wallace, orthopaedic surgeon examined the plaintiff as the request of his solicitors on 20 November 2021 and has provided a report dated 30 November 2021.  The plaintiff told Dr Wallace that he noticed that he had a severe headache on the evening of the accident.  He did not complain of ongoing headaches or neck related pain.  For this reason, Dr Wallace did not perform an examination of the plaintiff’s neck area.  The plaintiff complained of ongoing headaches to Mr Chai on 25 November 2021 but said that they were very occasional. 

12. [30]
    The second defendant arranged for the plaintiff to be examined by Dr Prue Fitzpatrick, orthopaedic surgeon on 8 April 2022 and she has provided a report dated 27 April 2022.  The plaintiff told Dr Fitzpatrick that by the time he arrived home after the accident, he had a strong headache.  He told Dr Fitzpatrick about his pre-existing neck pain and said that the accident had made it worse.  As to his ongoing neck symptoms, he rated them as four to six out of 10 and said that they had returned to pre-accident levels.

12. [31]
    In cross-examination, the plaintiff said that his neck and shoulder pain was now much better, as were his headaches. 

12. [32]
    I am satisfied that the plaintiff has established that the accident temporarily aggravated his neck related symptoms and that the aggravation persisted for a few months.  He experiences only occasional ongoing headaches.

12. Whether lower back injury

12. [33]
    There is no suggestion on the evidence that the plaintiff had any pre-existing lower back symptoms.   He has experienced such symptoms since the accident.  The issues are whether these symptoms are causally related to the accident and if they are, whether they are ongoing. 

12. [34]
    The various records from doctors and physiotherapists show that while the plaintiff’s initial complaints of symptoms following the accident principally related to headaches and neck related symptoms, that he was also experiencing pain in his lower back.  The records from his attendances upon Mr Han, physiotherapist show that 10 days after the accident he was complaining of pain in his lumbar spine, in circumstances where his occasional headaches and neck pain were his principal concerns.   He again complained of lower back pain when he saw Dr Kang on the following day.  

12. [35]
    By early December 2020, it seems that the plaintiff was finding his lower back pain to be more problematic than his headaches or neck pain.  He told Mr Han this on 7 December 2020.  He said the pain was associated with left buttock pain that was being aggravated by sitting and driving for more than 15 minutes.  This remained the position when he reattended upon Mr Han on 15 December 2020.

12. [36]
    Because of complaints of ongoing lower back pain radiating into his leg, on 5 January 2021 Dr Tee provided the plaintiff with a referral for a CT scan of his lumbar spine. This was undertaken on 14 January 2021. It showed a disc bulge at L5/S1 and slight loss of disc height. 

12. [37]
    At the plaintiff’s next consultation with Dr Tee on 3 February 2021, the plaintiff’s principal complaint was lower back pain.  This is consistent with his complaints of pain to Mr Han on the previous day.   Dr Tee prescribed Lyrica.   Approximately five weeks later, the plaintiff reported to Dr Tee that his back pain was not much better, and that the Lyrica was making him sleepy.  He was referred to Dr Nick Chiang, pain management specialist.  It appears from exhibit 7 that at least some of the plaintiff’s attendances upon Mr Han for physiotherapy treatment on 9, 16 and 23 February 2021 were for lower back related symptoms.  

12. [38]
    The plaintiff attended upon Dr Chiang on 21 April 2021.  The plaintiff told him that he had pain in his thoraco-lumbar spine.  On examination, the plaintiff’s lumbar spine had a largely normal range of movement.  Dr Chiang considered it most likely that the plaintiff had a musculo-ligamentous strain following the accident.  He prescribed Norflex and recommended further physiotherapy treatment.   Dr Chiang also ordered MRIs of the plaintiff’s thoracic and lumbar spines. These were performed on 25 May 2021.  They were reported as showing mild generalised thoracic and moderate mid to lower lumbar spondylosis.  

12. [39]
    When the plaintiff attended upon Mr Chai for physiotherapy treatment on 16 June 2021, he complained of pain bilaterally in the mid to lower back, although closer to the lower back.  He said it was sore when he would reposition himself from sitting to standing, or with sustained sitting when driving.  At a subsequent attendance on 17 August 2021, the plaintiff complained of central mid back pain when he was playing his weekly tennis.   On 22 September 2021, he reported that there had been an improvement in his lower back pain but that it was still sore while driving. On 25 November 2021, the plaintiff complained of ongoing mid to lower back pain that he would feel when he was driving and when playing tennis and soccer. 

12. [40]
    As to the onset of his lower back symptoms, the plaintiff told Dr Wallace at the time of his examination on 20 November 2021 that he had noticed them the day after the accident.   As to the ongoing nature of them, he said that the pain was worse with bending, lifting and twisting.  He also said that he suffered from nocturnal discomfort and had difficulty with any prolonged sitting, including driving for more than 30 minutes. 

12. [41]
    Dr Wallace examined the plaintiff’s lower back. It revealed some tenderness over the lumbo-sacral area.  He had a full range of motion in forward flexion and extension.  Lateral flexion to the left was restricted to 15 degrees with muscle guarding and pain.  Neurological examination of the lower limbs was normal.  The plaintiff had normal muscle bulk, tone, and power in the lower limbs, with symmetrical deep tendon reflexes of normal amplitude.  Straight leg raising was unrestricted bilaterally. Peripheral sensation was intact.

12. [42]
    Subsequent to this examination, the plaintiff reported ongoing back pain to Dr Tee on 3 December 2021 and 9 March 2022.

12. [43]
    When the plaintiff attended upon Dr Fitzpatrick for his independent medical examination on 8 April 2022, he localised his pain to the T10/11 region.  He said it was noticeable when he was driving for more than 30 minutes and playing tennis or soccer.  It was also aggravated by sitting in one position for too long.  It was eased by not driving for more than an hour, resting, hot packs and analgesics.  He rated the pain as four to six out of a scale of 10. He also said that he could get pain in both buttocks which radiated to the proximal thighs bilaterally.  He described fluctuating pins and needles in his buttocks and groin.  On examination, firmer palpation elicited some discomfort.   Rotation was to 35 degrees bilaterally and lateral flexion was to 40 degrees bilaterally, flexion was 70 degrees and extension was to 10 degrees.  All movements aggravated the thoracic back pain.  

12. [44]
    Since Dr Fitzpatrick examined the plaintiff, he has reported ongoing back pain to Mr Chai on 7 June 2022 and 13 April 2023, and to Dr Wang on 7 July 2022.

12. [45]
    In cross-examination, the plaintiff said that he continued to experience pain in his lower back, particularly when driving.  He described the pain as being “right in the middle” and that it has always stayed the same.^[9]  He said it was aggravated when sitting in the same position for an extended period.  When he was cross-examined about the fact that he had been able to sit in court for extended periods without exhibiting any signs of being in pain, he said that it was when driving for more than 30 minutes to an hour that his back pain was most problematic.  In evidence-in-chief, he was asked whether he had noticed any difference with the range of motion in his back since the accident and he said that he finds it harder to bend or twist.  He was also asked if he had any problems standing and he said that this was now “much better”.^[10]

12. [46]
    The defendants contend that:

3. (i)
   the severity of the accident was minor and was not sufficient to cause a lower back injury;

3. (ii)
   there was a delay in the onset of the plaintiff’s lower back symptoms making it unlikely that he suffered a lower back injury in the accident; and

3. (iii)
   if the plaintiff suffered a lower back injury, it was of a temporary nature and has resolved.

12. [47]
    I do not accept any of these contentions.  The defendants’ submission as to the forces involved in the accident does not withstand scrutiny.  It is premised on two principal assumptions.  The first is the very low speed at which the Camry was travelling just prior to the collision. The second is the position of the vehicles post-accident. 

12. [48]
    For the reasons discussed in paragraph 17 above, in my view the Camry was travelling more than 10 kilometres per hour.  I accept Dr Wallace’s evidence that this would be sufficient to cause a physical injury to the plaintiff, which would include a lower back injury.^[11]  Dr Fitzpatrick made the obvious point that the higher the velocities, the bigger the forces and the greater the likelihood of an injury.^[12] In cross-examination, Dr Fitzpatrick accepted that the impact of the vehicles is likely to have pushed the rear of the Camry sideways, causing the plaintiff’s body to have been moved from left to right, with some rotation of the upper portion of his torso.^[13]  Further, in the absence of expert evidence, I am not persuaded that much can be inferred about the forces involved in the accident, from the position of the vehicles after it occurred.  

12. [49]
    The issue of the delay in the onset of the plaintiff’s symptoms finds its genesis in Dr Fitzpatrick’s report.  At the time of writing her report, it was Dr Fitzpatrick’s understanding that the plaintiff did not first complain about lower back symptoms until 5 January 2021.  This was about six weeks after the accident.  However, this is not correct.  The earliest documented record of such symptoms is 10 days after the accident, when the plaintiff attended upon Mr Han.  Both experts explained that while such symptoms are normally apparent within the first 24 to 48 hours, they can evolve over a longer period.  Further, it cannot be overlooked that the plaintiff may well have been experiencing lower back symptoms prior to this time but his attention was focussed on his predominant neck related symptoms. This would not be surprising given that the plaintiff had experienced ongoing problems with neck pain prior to the accident.  Dr Wallace explained that once predominant symptoms become less of a problem, other symptoms the person is experiencing can “come to the fore”.^[14]  I am ultimately persuaded that there is a sufficient temporal connection between the accident and the onset of the plaintiff’s lower back symptoms.

12. [50]
    The defendants’ contention that any lower back injury the plaintiff had was of a temporary nature only and has resolved, is said to find support in the plaintiff’s differing descriptions to Drs Wallace and Fitzpatrick of the location of his lower back pain.  It was Dr Wallace’s evidence that the plaintiff described pain in his lumbar spine, while Dr Fitzpatrick explained that the pain the plaintiff described to her was higher in his spine, in the thoraco-lumbar region.  The reason for this difference is not readily explicable.  Resolution of this issue has been made more challenging, given that while ongoing complaints of lower back pain are documented in numerous records, many of them do not specify the specific location of the pain within the plaintiff’s lower back.  This does not ultimately detract from me being persuaded that the plaintiff has sustained an ongoing injury to his lower back in his lumbo-thoracic spine.  When Dr Chiang saw the plaintiff in April 2021, he examined both the plaintiff’s lumbar and thoracic spines and considered it was most likely the plaintiff had sustained a musculo-ligamentous injury to his spine in the accident.  Dr Fitzpatrick also considered that this could explain the symptoms reported to her.  Further, Dr Fitzpatrick gave evidence that such an injury could explain the plaintiff’s complaints of back pain with any prolonged sitting and when driving for more than 30 minutes.^[15]  She also thought that it explained the easing of his pain with rest, the use of hot packs and the taking of analgesics.^[16]

12. [51]
    A weakness of some significance in the defendants’ case is that there is no evidence of any other compelling explanation for the plaintiff’s lower back symptoms.  The only other possibility is that the symptoms are a consequence of the degeneration reported in the results of the radiological investigations, referred to in paragraphs 36 and 38 above.  However, I am not persuaded by this.  Dr Fitzpatrick explained that given the plaintiff’s age, the results in relation to the thoracic spine were normal and those in relation to his lumbar spine were relatively normal.  She considered that this degeneration was likely to have been present prior to the accident, in circumstances where the plaintiff was asymptomatic.  It is in this context that Dr Fitzpatrick gave evidence, that apart from the accident, she was not able to identify any other cause for the plaintiff’s lower back symptoms.^[17]

12. [52]
    I accept the plaintiff’s evidence about his ongoing back related symptoms, for which he has continued to receive treatment.  I am not ultimately persuaded that the plaintiff’s lower back symptoms have resolved.  I think it is more likely that the symptoms are characterised by intermittent flare ups of variable intensity.  

12. [53]
    In short, in my view it is more probable than not that the plaintiff has suffered a soft tissue musculo-ligamentous injury to his lower back, with continuing ongoing intermittent symptoms. 

12. Quantum

12. General damages

12. [54]
    The plaintiff is from South Korea and was born on 24 October 1968.  He was 52 years of age at the time of the accident.  He is currently 54 years of the age.  He is a married with two adult children.  He intends to work for as long as he can.

12. [55]
    Prior to the accident the plaintiff played tennis, soccer and golf.  He no longer plays soccer as he feels that it is too physical on account of his ongoing symptoms.  He continues to play tennis with friends when his symptoms are not too problematic and when time permits.  He also continues to play golf but can no longer drive a golf ball as far as he used to. 

12. [56]
    When the plaintiff saw Dr Wallace in November 2021, he reported that he was able to attend to personal activities of daily living and function normally in the family and social environment. His back pain was worse with bending, lifting and twisting. He said he had difficulties with any prolonged sitting and when driving for more than 30 minutes.  He also described suffering from nocturnal discomfort.  Examination of the lumbar spine revealed some tenderness over the lumbosacral spine.  The plaintiff had a full range of motion in forward flexion and extension.  Lateral flexion was restricted to 15 degrees with muscle guarding and pain, lateral flexion to the right was 30 degrees.  Dr Wallace also conducted a neurological examination of the plaintiff’s lower limbs.  The plaintiff was noted to have normal muscle bulk, tone, and power with symmetrical deep tendon reflexes of normal amplitude.  Straight leg raising was unrestricted bilaterally. Peripheral sensation was intact.

12. [57]
    Chapter 15 in the American Medical Association Guide to the Evaluation of Permanent Impairment 5^th Edition (‘the AMA Guide’) provides criteria for evaluating permanent impairment of the spine.  Box 15-1 of the AMA Guide provides guidance around the symptoms, signs and tests used to assist in the correct DRE categorisation.  Dr Wallace assessed a six percent whole person impairment using the DRE-II category in Table 15-3 of the AMA Guide.  This is said to reflect Dr Wallace’s examination findings of asymmetry of motion and muscle guarding with respect to his lumbar spine, and the adverse effect of the plaintiff’s lumbar spine symptoms on his leisure activities.  Dr Wallace did not examine the plaintiff’s thoracic spine. 

12. [58]
    I am not convinced of the approach adopted by Dr Wallace in arriving at his whole person impairment percentage.  Relevantly Box 15-1 of the Guide provides that to qualify as true asymmetric motion, the finding must be reproducible and consistent, and the examiner must be convinced that the individual is cooperative and giving full effort.  The AMA Guide recommends the use of an inclinometer device to obtain accurate reproducible measurements.  Dr Wallace neither used an inclinometer nor determined whether the asymmetry was reproducible.  Rather, the asymmetry relied on by Dr Wallace was simply his observation that when the plaintiff performed lateral flexion, it appeared to be reduced by some 15 degrees.  

12. [59]
    When Dr Fitzpatrick examined the plaintiff in April last year, she considered that there was a well-preserved range of movement in the plaintiff’s thoracic and lumbar spines.  She thought that there was no asymmetry of movement, no palpable muscle spasm, and no evidence of radiculopathy.  She considered that the injuries fulfilled the criteria for DRE Category 1 with a zero percent whole person impairment. 

12. [60]
    An award for general damages is intended to compensate the plaintiff for pain and suffering and loss of amenities of life.^[18]  The extent of whole person impairment is an important but not the sole consideration. The award ought to reflect the level of adverse impact of the injury on the plaintiff.  In assessing general damages, the court is required to apply the rules laid down in s 6 of the Regulation to assess an injury scale value (‘ISV’) from the range of ISVs stated in Schedule 4 of the Regulation.  Section 62 of the Act provides for the calculation of general damages according to the assessment of the ISV and the formulae provided.

12. [61]
    This case concerns multiple injuries.  It is therefore necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, and determine where in the range of ISVs provided for that injury it should fall.  It is then necessary to determine whether the maximum ISV in that range adequately reflects the adverse impact of all the injuries.  If it is not sufficient, then the ISV might be higher but not more than 25 percent above the maximum dominant ISV selected.  

12. [62]
    In paragraph 6.1 of the statement of claim, general damages are claimed in an amount of $22,010.  This equates to an ISV of 12 pursuant to the Regulation.  However, in the plaintiff’s written submissions, he claims an ISV of 15 and further submits that an ISV of no less than 10 is appropriate.  It is said that the plaintiff has suffered a lower back injury and an aggravation of his neck condition.  It is claimed that the lower back injury is the dominant injury.  

12. [63]
    Reliance is placed on Item 93 with an uplift having regard to the adverse impact of the plaintiff’s injuries.  Item 93 is for a moderate thoracic or lumbar spine – soft tissue injury.  The ISV range is 5 to 10.  For an injury to fall within this range, it needs to cause moderate permanent impairment of the thoracic or lumbar spine, for which there is objective evidence.  It provides that 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.

12. [64]
    Item 94 is for a minor thoracic or lumbar spine injury. The ISV range is 0 to 4.   An example of this injury is a soft tissue injury with no significant clinical findings, fractures, documented neurological impairment, significant loss of motion segment integrity or other objective signs of impairment relating to the injury.  It provides that an ISV towards the top of the range will be appropriate, irrespective of whether the injured person continues to suffer some ongoing pain, if the injury will substantially reach maximum medical improvement, with only minor symptoms, within about 18 months after the injury is caused.

12. [65]
    I bear in mind that the plaintiff is in his mid-50s, and there has been some disruption to his life caused by these injuries, however the pain is not a constant feature of his presentation. I am satisfied that the maximum dominant ISV of 4 (for Item 94) reflects the impact of the lower back injury and the temporary exacerbation of the plaintiff’s neck related symptoms, including the headaches.  Applying Schedule 7 of the Regulation, results in an award of $6,480.

12. [66]
    Pursuant to s 60(1)(a) of the Act, a court cannot award interest on general damages.   

12. Special damages

12. [67]
    The plaintiff claims $3,198.34 in out-of-pocket expenses since the accident.  The defendants contend that the figure ought to be reduced to $2,024.55.  I accept that $604.80 of the sum claimed is for radiological investigations associated with the plaintiff’s hip, which is not relevant to the claim.  I have not allowed for this.  The defendants also contend that the sum should be further reduced by $568.99 for physiotherapy treatment and pharmaceuticals claimed after 3 December 2021, given that they related to a time period after the plaintiff’s symptoms resolved.  As explained above.  I do not accept this.  I have allowed $2,595 for out-of-pocket expenses.

12. Interest on out-of-pocket expenses

12. [68]
    I understand that the second defendant has paid $103 towards the plaintiff’s rehabilitation expenses.  The refund to Medicare is $1,857.  Interest on the shortfall of $736.54 is agreed in the sum of $30.

12. Past economic loss

12. [69]
    The plaintiff completed a degree in English Literature in South Korea.  He spent two years working in a brewing company and then in 1996 he moved to Japan, where he worked in part-time jobs.  When he relocated to Australia in 1997, he initially worked as a tour guide and as an operations manager.  He then owned a retail shop on the Gold Coast prior to moving to Singapore in 2011, where he ran a restaurant with his brother for about seven years.  He moved back to Australia in September 2018 and worked as a chef in two different sushi restaurants until August 2020.  From October 2019, he also worked as a rideshare driver, initially for DiDi and later also for Uber.  He continues to do this from time to time.

12. [70]
    In mid-2020, the plaintiff became registered as a real estate agent and was offered a job working for Remax at Sunnybank.  He commenced in August 2020 and remains in this job.  Given that real estate agents are renumerated on a commission basis, the plaintiff explained in evidence that he did not receive any income from this work for the first six or seven months.  This means that he had not received any income relating to his work as a real estate agent at the time of the accident.  He also explained that the ownership of Remax changed last year, and the current owner is more focussed on property developments rather than residential sales. 

12. [71]
    At the time of the accident the plaintiff was working as a rideshare driver for up to 30 hours per week.  He was also working as a real estate agent for 30 to 40 hours per week.  

12. [72]
    The parties agree that the plaintiff has earned the following amounts from his work as a ride share driver and in real estate:

12. [73]
    Converting the amounts in the above table to average net weekly incomes, gives figures of $247.69 in the 2019 financial year, $626.76 in the 2020 financial year, $588.45 in the 2021 financial year and $1,041.45 in the 2022 financial year. The plaintiff was also in receipt of Centrelink benefits in the 2020 and 2021 financial years, in the respective sums of $2,457 and $9,930. 

12. [74]
    It is readily apparent that since commencing in the real estate industry in August 2020, the income the plaintiff earned from work as a ride share driver in the 2021 and 2022 financial years, exceeded that earned as a real estate agent.  The plaintiff explained that over this time his financial commitments were significant, as his daughters were in their final years of schooling.  For this reason, the regular income that he could earn as a ride share driver needed to take precedence over the sporadic commissions he was earning as a real estate agent. 

12. [75]
    Exhibit 10 confirms the irregular nature of the commission payments the plaintiff has received while working for Remax.  As explained by the plaintiff, there is no set formula for the calculation of these commissions.  He said that Remax normally takes about two and a half percent commission on the sale of a property.  The percentage of this that he receives is variable.  The examples he gave varied between 30 and 60 percent.  It depends for example on how many other agents are involved in selling the property and whether deductions need to be made for expenses, such as marketing.  The plaintiff has also been paid commissions for making referrals to the property management team of Remax for rental properties.

12. [76]
    Up until the end of last year the plaintiff was working for approximately 30 to 40 hours per week as a ride share driver and 30 hours per week as a real estate agent.  He explained in evidence that he has reduced the number of hours he works as a ride share driver to between 10 and 20 hours per week.  This is because the financial pressures of providing for his family have eased.  He has only extended his ride share licence for one more year as it is his plan to focus his attention on his real estate work.   

12. [77]
    The job of a real estate sales agent involves calling potential buyers and sellers, attending meetings, performing administrative type tasks relating to advertising and the sale of properties, conducting open houses, and disseminating marketing material via letter box drops.  He explained that he was often assisted by his daughters or family members of the owner when doing the letter box drops. Following the accident, the plaintiff did not return to his work as a real estate agent for approximately two weeks.  He said that his injuries meant that he could not walk the distances required for the letter box drops and he also could not drive long distances, for example to the Sunshine Coast for the purpose of looking at blocks of land for potential development opportunities. It seems that the plaintiff did not return to his ride share driving for a further three or four weeks.  The principal reason for this is that the Camry was being repaired.  

12. [78]
    It is not in dispute that subsequent to the accident the plaintiff has earned more from ride share driving than before the accident.  He said that while the driving aggravated his back pain, he felt that he had no option but to keep driving to financially support his family.  He has managed his pain by taking breaks and by taking analgesics at night.

12. [79]
    The plaintiff’s claim for past economic loss is pleaded in paragraphs 6.2 to 6.4 of the statement of claim.  It is broken up into two distinct periods.  The first is the five or so week period between the date of the accident and 31 December 2020.  This period covers the time that the plaintiff had off work in the immediate aftermath of the accident.  It is said that just prior to the accident, the plaintiff’s combined income from ride share work and as a real estate agent was approximately $833 per week.  He claims a global sum of $5,000 over this period.  The second period is the period since the beginning of 2021.  A further global sum of $30,000 is claimed on the basis that the plaintiff has been unable to return to his full capacity, meaning that his practical duties have been reduced with a consequential reduction in his income.  

12. [80]
    In their defence of this aspect of the plaintiff’s claim, it is contended by the defendants that the plaintiff has had and continues to have the functional capacity to work in his pre-accident employment and that no allowance ought to be made.

12. [81]
    The approach to the assessment of economic loss is to compensate the plaintiff for loss of earning capacity. The plaintiff must not only establish a diminution of earning capacity but also that the diminution is or may be productive of economic loss.^[19] 

12. [82]
    I accept that on account of the plaintiff’s symptoms, he was limited to some extent in his ability to fully carry out his work duties for about five or six weeks after the accident.  Over this period his earning capacity was unquestionably reduced, although its extent is difficult to assess.  The use of precise figures would be a “a vain pretence to a degree of certainty that is simply not attainable”.^[20]  I have allowed $3,500, which equates to approximately $600 per week for this period.

12. [83]
    The question remains as to whether any amount for economic loss should be awarded for the period since the commencement of 2021.  The plaintiff has not identified any specific employment opportunity which he has passed up because of the injuries sustained in the accident.  The only evidence relevant to the issue is the plaintiff’s contention that if he had not had the accident, he would have been able to generate “much more income”.^[21]

12. [84]
    Given the plaintiff’s age, his work history and the fact that he has suffered ongoing symptoms which are reflected in a permanent impairment, I am satisfied that as a consequence of the accident, he has suffered some reduction in earning capacity since the commencement of the 2021 financial year.  However, I consider it to be very modest. This is because while I accept that for a finite period the plaintiff may have struggled to walk the distances required to perform letter box drops, there is no evidence that he could not complete this task. In addition, it was his evidence that others would usually assist him to do this irrespective of his injuries.  In these circumstances, I am not satisfied that his difficulties undertaking letter box drops translates to any significant diminution of earning capacity.

12. [85]
    A similar observation can be made with respect to the plaintiff’s inability to drive long distances.  This would have had the greatest impact on his work as a ride share driver. Despite this difficulty, up until the end of last year, he progressively increased the number of hours he devoted to this work.  In other words, he continued driving but managed his symptoms with regular breaks and medication.  This is also the way he has managed the infrequent occasions when he has had to drive long distances in his work as a real estate agent.  It is worth observing that despite his injuries, the plaintiff has been working up to 60 to 70 hours per week between the two jobs.

12. [86]
    Of note, since early January 2021 the plaintiff has made intermittent complaints of inguinal and/or hip related symptoms.  Both experts concur that these symptoms are unlikely to be causally related to the accident.  Further, in 2022 the plaintiff received physiotherapy treatment from Mr Chai after spraining his calf while playing tennis and after experiencing pain in his right knee.  It was the plaintiff’s evidence that these symptoms adversely impacted upon his ability to perform his work, both as a rideshare driver and in real estate.^[22]  There ought to be some adjustment for these.

12. [87]
    There are no criteria upon which precise figures might be properly inferred when calculating economic loss for the period since the beginning of 2021.  In my view the plaintiff has had the capacity to work in both of his jobs for most of this period, although his symptoms have been aggravated by some of the tasks required in his jobs.  There is the prospect that he has been more guarded in his approach to his duties and hence, less efficient.  Balancing the abovementioned considerations as best I can, I assess a global component of $5,000 over this period.

12. [88]
    Therefore, the total allowance for past economic loss is $8,500.

12. Interest on past economic loss

12. [89]
    Interest should be awarded on $8,500 for a period of 2.81 years using the formula in s 60(3) of the Act.  The resulting figure is approximately $395.

12. Past loss of superannuation

12. [90]
    The plaintiff does not make a claim for past loss of superannuation.  

12. Future economic loss

12. [91]
    In determining the appropriate allowance for future economic loss, it is necessary to consider what would have happened to the plaintiff had he not been injured and what will happen now.^[23] It is unnecessary for the plaintiff to establish that his injury will be productive of financial loss.  It is sufficient to prove that there is a chance of that loss occurring and the extent of the compensation depends on the degree of the chance.^[24]

12. [92]
    The plaintiff’s claim for future economic loss is premised on the assumption that he would have continued working until the age of 67.  In the statement of loss and damage this head of damage is claimed in the global sum of approximately $225,000.  It was reduced to $200,000 in the plaintiff’s written submissions.   

12. [93]
    It was the evidence of the plaintiff that he has extended his rideshare licence for a further year.  He plans to move out of this line of work and concentrate on his work in real estate, with a focus on land sites suitable for development (which can involve driving some considerable distances).  The plaintiff said in evidence that had it not been for the accident he could have been more focussed and that his goal was to earn a million dollars from real estate next year.  This does not seem very realistic to me.  At present, he does not have a licence to operate his own agency.  He is considering applying for the licence in two or three years.  The plan is for him to operate the sales side of the agency and for his wife to operate the property management side.  

12. [94]
    The defendants contend that even if the accident related injuries have not resolved, the plaintiff has not discharged his evidentiary onus to justify an award for loss of future earning capacity. In the alternative, it is said the award ought to be very modest and be in the order of $15,000 to $17,500.

12. [95]
    It is claimed by the plaintiff that he was on the threshold of his real estate career, with the intention to increase the scope of his work.  Working in the real estate industry is unlike some businesses, that from the outset are expected to generate an income, so that there are pre-accident trading figures that can be used as a guide in assessing loss of future earning capacity.  Therefore, the income he earned before the injury, while relevant is not determinative of the issue of future earning capacity.^[25]

12. [96]
    The plaintiff has not led evidence, even of a general kind, as to what he would have been likely to earn in the real estate industry but for the injury and what he is likely to earn with the injuries.  It does not seem that such evidence would have been difficult to call.  Having said this, while evidence of this nature is desirable, the failure to call it does not necessarily result in a nil or nominal allowance for impaired future earning capacity.^[26]Provided the existence of damage is established, the Court must do the best it can to make a judgment and assessment, on a percentage basis or otherwise of the value of the incapacity.^[27]  The discretionary judgment needs to be within fairly broad parameters and by reference to not wholly determinate criteria, encompassing a range of possible outcomes, some of which may be no more than a real possibility.^[28]

12. [97]
    While I accept that the plaintiff has established he has suffered some economic loss, the assessment of damages of a person in their mid 50s embarking on a career in real estate is necessarily founded on hypothetical evaluations and defies precise calculations. This leaves the assessment to be made on a global basis, reflecting the probabilities.  Section 55 of the Act is relevant to global assessments.  It makes no alteration to the common law tests to be applied.^[29] 

12. [98]
    I am satisfied that the plaintiff’s future, in both his injured and uninjured state, probably lies in real estate type employment.  Having said this, it cannot be overlooked that his ongoing symptoms mean that the range of other occupations open to him may have been reduced, making it more difficult for him to find employment on the open labour market. 

12. [99]
    The plaintiff’s lower back symptoms are stable and stationary.  In my view he can largely perform the range of duties that are expected in the occupation of a real estate agent, and he has a significant residual earning capacity. His principal limitation is his capacity to perform work that involves prolonged driving. However, the discomfort caused by this can largely be kept at reasonable levels by altering his position, taking breaks on long journeys, and similar strategies. 

12. [100]
    There are many imponderables in assessing the probable loss until age 67. The plaintiff had the prospects of running his own real estate business and/or obtaining higher paying work for the remainder of his working life.  However, it is not certain that he would have.  It would have depended on many factors.  He might have found the long hours of a real estate agent harder to endure, particularly as he moved towards the back end of his working life.  The real estate industry is confronted with risks not shared by other industries.  These include housing market volatility, the reduction in sales prices attributable to downturns in the economy, and high competition from other real estate businesses.  The agency the plaintiff currently works for could be acquired by a different operator impacting upon his job security.  Had he obtained work at the higher level of wages applicable to more demanding work, then he had the risk of suffering an aggravation of his pre-existing degeneration in his cervical, thoracic and/or lumbar spines, and aggravating his symptoms relating to his hernia and/or hips. 

12. [101]
    In my view, the prospective loss is best assessed in a global sum of $35,000.  

12. Future out of pocket expenses

12. [102]
    In the written submissions, the plaintiff claims a total of approximately $10,000 for future expenses. 

12. [103]
    Dr Wallace considered that the plaintiff is likely to continue to require intermittent physiotherapy and analgesics at a likely cost unlikely to exceed $1,000 per year.  Dr Fitzpatrick considered that no further treatment was required.  

12. [104]
    I have allowed $2,500 on a global basis for medication and physiotherapy treatment to manage intermittent flare ups of the plaintiff’s lower back pain.

12. Summary of damages award

12. Orders

12. [105]
    There will be judgment for the plaintiff in the sum of $55,505.

12. [106]
    I direct that any submissions in respect of costs (not to be longer than four pages) or alternatively a proposed draft order if the parties are agreed, be filed within seven days.