Marshall v Corbett[2023] QDC 211

DISTRICT COURT OF QUEENSLAND

1. Introduction

1. [1]
   On 3 June 2019, a motorcycle that Mr Keith Marshall (the plaintiff) was riding collided with a Mazda motor vehicle that Ms Lynn Corbett (the first defendant) was driving. The plaintiff claims damages for personal injury. The primary issues for the Court are:

3. (a)
   was the accident caused by the first defendant’s negligence?;

3. (b)
   if liability is established, was the plaintiff contributorily negligent?; and

3. (c)
   if liability is established, what is the appropriate assessment of damages?

1. [2]
   The plaintiff has submitted that, whilst he has largely recovered from the injuries sustained as a consequence of the accident, he has suffered losses for which he is entitled to damages in the total amount of $295,361.90.

1. [3]
   The second defendant denies liability and disputes quantum.

1. Facts

1. [4]
   The plaintiff was 41 years of age at the time of the accident.

1. [5]
   The plaintiff is a chef. He became qualified in about 2006 and was working as a chef at the time of the accident.^[1] He was an “agency chef” working on a casual basis through Chefs on the Run and Contract Chefs Australia.^[2]

1. [6]
   On 3 June 2019, the plaintiff rode his Kawasaki motorcycle from his home in Newmarket with the intention of attending a store in Everton Park.^[3] To do so, he travelled along South Pine Road in Enoggera. He was familiar with that road and had travelled it “quite regularly”.^[4] He was not in a “rush”.^[5]

1. [7]
   At the place of the collision, South Pine Road was aligned in an east/west direction and was constituted by a single lane of traffic in each direction. The lanes were separated by line markings on the roadway.

1. [8]
   As the plaintiff rode west along South Pine Road he entered a school zone, which was signed at 40 kilometres per hour. Although his practice when entering a school zone was to reduce speed,^[6] he does not recall the speed he was travelling at the relevant time. The accident occurred on a school day.

1. [9]
   After travelling past the pedestrian crossing shown in Exhibit 1.2 he was looking ahead and could see the traffic lights visible in Exhibit 1.9.^[7] He testified that when looking at the traffic lights he was still able to monitor the conditions closer to him and he could see that there were no vehicles driving in the lane in front of him.^[8]

1. [10]
   He also testified that as he was travelling at that location, he noticed a stationary motor vehicle pulled over on the left shoulder of the lane in which he was travelling. As he approached that vehicle it, without warning or indication, pulled out in front of him as if the driver intended to perform a U-turn to travel in the opposite direction. This occurred at a time when the plaintiff was so close that he was unable to avoid colliding with the other vehicle and his motorcycle collided with the front driver’s side door of that vehicle.

1. [11]
   At that time the plaintiff’s motorcycle was positioned close to the centreline of the roadway.^[9] He was thrown over the car and ended up at the kerb on the other side of the road.

1. [12]
   The plaintiff suffered a number of injuries which are admitted:

3. (a)
   a fracture to the right femur;

3. (b)
   left and right sided rib fractures;

3. (c)
   a pneumothorax;

3. (d)
   a sternal fracture; and

3. (e)
   a fracture to the left clavicle.

1. [13]
   The plaintiff also claims he suffered a number of other injuries which the defendants do not admit:

3. (a)
   a flail chest (associated with multiple rib fractures);

3. (b)
   thoracic spine compression; and

3. (c)
   a psychiatric injury (particularly an adjustment disorder).

1. First defendant’s evidence

1. [14]
   The first defendant’s evidence differs from that of the plaintiff in a number of significant ways.

1. [15]
   The first defendant attested that she had been driving her car in an easterly direction on South Pine Road intending to travel to the Emmanuel Uniting Church which was located at 249 South Pine Road which is on the northern side of that road. She was travelling there for employment purposes and was also in no hurry at the time.^[10]

1. [16]
   She turned left into the semicircular driveway of that church but realised that she would not be able to park there due to the positioning of other parked vehicles in the driveway. At that time she noticed that a parking space on the left side of the east bound lane in which she had been travelling was available. It was positioned between the entrance and the exit of the semicircular church driveway.^[11]

1. [17]
   Consequently, she decided to exit the church driveway and turn right back onto South Pine Road and drive in a westerly direction for only 30 or 40 metres before turning right again into the entrance of the church’s semicircular driveway. She then intended to reverse back out onto the roadway and then drive into the vacant parking space on the side of the road.^[12]

1. [18]
   She testified that when she pulled out of the semicircular driveway she did so carefully after first checking that there was no oncoming traffic from either direction. She also said that after she pulled out she was only travelling at a slow speed given that she intended to turn again almost immediately. She said that she engaged her right turn indicator after it automatically switched off after making the turn out of the church driveway.^[13]

1. [19]
   The first defendant testified that she positioned her car close to the centre line before making the right turn back into the entrance of the semicircular driveway and was part way through that manoeuvre when the merge alarm on her car sounded a split second before the plaintiff’s motorcycle collided with her driver’s door. At that time, she estimated that her vehicle was between the centre line and the driveway into which she was turning.

1. [20]
   The motorcyclist was thrown over the bonnet of her car and he ended up near the curb on the other side. The motorcycle skidded across the road and collided with the garage door of the house next door to the church.

1. [21]
   The first defendant had to kick her door open to exit the car and she then attended briefly to the plaintiff until an off-duty nurse stopped and rendered assistance to him. The first defendant subsequently sat in her car for a short time because she was upset before moving her car to the edge of a driveway so as to not block traffic.^[14]

1. [22]
   The first defendant also testified that she embarked on this journey at 2.00 pm from Alderley.^[15]

1. Evidence of Valeria Noleto

1. [23]
   The only other witness of relevance to the issue of liability was Valeria Noleto.

1. [24]
   Ms Noleto lived in a house on South Pine Road next door to the church. She did not see the accident but after hearing a loud noise she went out to investigate. She saw the plaintiff lying on the ground against the kerb and a motorbike lying up against her garage door. She also saw the first defendant’s vehicle which was stationary and positioned in the middle of the road. Ms Noleto marked an aerial photograph of the area with an “X” indicating that the car was positioned almost opposite her driveway rather than the driveway leading into the church.^[16]

1. Expert report

1. [25]
   The only other evidence of potential relevance to the issue of liability came before the Court in the form of an expert report under the hand of Dr F W Grigg, a Forensic Engineer.

1. [26]
   Dr Grigg opined that the “nature of the damage to the driver’s door region of the Mazda and the relatively undamaged condition of all the left side of the motorbike, as well as Lynn Corbett’s assessment of the moderate severity of the impact (in paragraph 37 of her statement) all suggest that the angle of approach of the motorcycle to the Mazda was quite small and significantly less than 90 degrees. Later in his report, Dr Grigg opined that the angle of impact was probably about 20 degrees to 30 degrees relative to the longitudinal axis of the car.

1. Assessment of liability

1. [27]
   It is undisputed that the collision occurred shortly after 2.00 pm – perhaps around 2.15 pm. The speed limit at that time was therefore 40 kilometres per hour.

1. [28]
   The plaintiff took part in an interview with police later that same afternoon and the following exchange occurred:^[17]

1. [29]
   After pointing to a map to show where he was driving, the plaintiff told police:^[18]

1. [30]
   The plaintiff submits that this account was entirely consistent with his evidence, and given the “contemporaneous and spontaneous nature of his account, there can be no suggestion of reconstruction”.^[19]

1. [31]
   However, of his own volition, the plaintiff requested to participate in a second interview with police which was subsequently conducted on 19 June 2019. After repeating his original account, police put the first defendant’s account to him. They told him that the first defendant “was driving along this road and then she indicated to turn right into this driveway … and then when she turned and she was in the right lane about to enter this driveway you hit her.”^[20] In response to that assertion the plaintiff said:^[21]

1. [32]
   This is a significant inconsistency in the plaintiff’s evidence.

1. [33]
   The plaintiff submits that this aspect of his account was not true and that his memory at the time of that second interview was affected by pain.^[22]

1. [34]
   But that change in his account is not to be viewed in a vacuum. In that changed account, he not only agreed with the first defendant’s account of how the collision occurred, he also conceded that he had seen a vehicle travelling in front of him and that by the time he appreciated that it was slowing down because he was looking at the traffic lights up ahead, it was too late to avoid a collision.

1. [35]
   That concession must be viewed in light of the first defendant’s evidence. Ms Corbett impressed as a witness of reliability and credibility. Furthermore, her evidence that she remained in the lane as opposed to pulling over to the left shoulder of the road is exactly what one would expect a reasonable driver to do, and I have no hesitation in accepting her evidence that her intention was to perform a three point turn to enable her to access the vacant parking space.

1. [36]
   The plaintiff has placed heavy reliance on the evidence of Ms Noleto, as to her recollection of where the first defendant’s car was stopped on the roadway, which, it is submitted, is consistent with the plaintiff’s account of how the collision occurred.

1. [37]
   Unfortunately for the plaintiff, I am not of the view that Ms Noleto’s evidence, either by itself, or in conjunction with other evidence, damages the credibility and/or the reliability of the first defendant. Ms Noleto had some difficulty in remembering exactly where the stationary car was positioned. Furthermore, one would not necessarily have expected a person in Ms Noleto’s position to pay particular attention to the exact positioning of the stationary vehicle – particularly given that it was moved from that position after a reasonably short period of time. In such circumstances I am not persuaded as to the accuracy of Ms Noleto’s recollection.

1. [38]
   Additionally, the plaintiff’s evidence does not persuade me that the first defendant’s recollection is false or that she gave deliberately false testimony. The plaintiff was an unimpressive witness who appeared to have little actual recollection of the accident itself. I note that whilst his evidence was that he could not recall his speed at the relevant time, he nevertheless told police officers later that same day that he was travelling at 50-60 kilometres per hour. He also claimed that he gave inaccurate information to police due to either him feeling intimidated or as a consequence of pain or medication. Upon viewing and listening to these recorded interviews, I am not able to discern anything from his answers, comments or demeanour which would support such assertions.

1. [39]
   I should say however, that I am not of the view that the plaintiff gave deliberately false testimony, rather, he gave the distinct impression of being a witness that had little independent recollection of the event in question and had reconstructed events in his mind.

1. [40]
   Of course, the onus of proof rests on the plaintiff. For the reasons given the plaintiff has not met the standard of proof required and I am not persuaded that the collision did not occur as described by the first defendant.

1. [41]
   Having so concluded, I am not satisfied that the first defendant was in any way negligent in the driving of her motor vehicle relevant to the collision. The most likely cause of the collision was the plaintiff, when travelling in excess of the speed limit at the time and focusing on the upcoming traffic lights, failed to pay due attention to the road immediately in front of him until it was too late to avoid a collision. In other words, the collision was caused solely by the negligence of the plaintiff, such negligence being constituted by:

3. (a)
   failing to keep a proper lookout;

3. (b)
   failing to travel at a safe speed; and

3. (c)
   failing to keep a safe distance from the vehicle in front.^[23]

1. [42]
   For these reasons the plaintiff’s claim must fail.

1. Contributory negligence

1. [43]
   Given my findings above, there is no scope for consideration of contributory negligence.

1. Quantum

1. [44]
   Notwithstanding my findings above, I am nevertheless required to assess the quantum of damages that would otherwise have been ordered.

1. Injuries

1. [45]
   Dr Richard Hudson, orthopaedic surgeon, gave evidence by way of a report dated 24 September 2021.^[24] In respect of the chest injury, he noted “an ununited fracture of the left eighth rib with healed fractures of the left ribs between one and 10 and the right ribs between four and six (page 10).” Dr Hudson recorded that (as at September 2021) the plaintiff continued to experience pain and shortness of breath (page 12). He described a five-centimetre longitudinal scar near the left armpit and a seven-centimetre scar on the posterolateral aspect of the chest (page 8).

1. [46]
   Dr Hudson noted the right femur injury and that the plaintiff underwent a surgical stabilisation procedure on 4 June 2019 (page 5). He measured the plaintiff’s right leg at 94 centimetres and the left leg at 96 centimetres (page 9).  He noted a seven-centimetre scar over the right hip and a small scar above the knee due to the surgical procedure (page 9). Using the AMA Guides, Dr Hudson assessed 2% whole person impairment for the limb length (page 14). He noted that the plaintiff reported that the right leg “does not bother him very much”, but there was “an occasional pinching feeling above the right knee” (page 8).

1. [47]
   Dr Hudson also found that there were additional fractures of the thoracic spine (at T6, T7, T8 and T9) and a pre-existing fracture of T12 (page 12). He considered that the ongoing compression fractures of the thoracic spine were secondary to the accident (page 12). He assessed the thoracic fractures as giving rise to a 15% whole person impairment under the AMA Guides (page 13).

1. [48]
   When asked to describe what restrictions or difficulties the plaintiff would have with employment due to his injuries, Dr Hudson suggested a likely permanent restriction to reduced hours and “a weightlifting restriction of approximately 10 to 15 kilograms” (page 15). He opined that ongoing or intermittent anti-inflammatory medication or Lyrica was needed (page 15). Dr Hudson also recommended that special shoe or heel inserts would likely be required to “counteract the effect of the leg length discrepancy” (page 16).

1. [49]
   Finally, Dr Hudson said that the plaintiff may require further surgery to remove the surgical nail from his right femur and possibly the plate for his rib fractures (page 16).

1. [50]
   Dr Mark Whittington, Psychiatrist, gave evidence by way of a report dated 28 September 2021.^[25] He said that the plaintiff had a past psychiatric history in that in about 2012, he was prescribed Cipramil because of issues related to stress and the workplace (page 3). That medication “continued to the present”, although was increased from 20mg to 30mg because of the increased symptoms after the accident (page 3).

1. [51]
   Dr Whittington recorded that in the aftermath of the injury, through late 2019 and 2020, the plaintiff described feelings of being anxious (including apprehension about driving) and depressed (page 2). He said that it appeared the plaintiff “had a mild Adjustment Disorder with Anxious and Depressed Mood, in the aftermath of his injuries, particularly when he was not working and trying to recover” (page 4). He said the Adjustment Disorder had resolved and prognosis was favourable (page 5). He assessed a nil permanent impairment and said the plaintiff had returned to his pre-morbid level of functioning. From a mental health perspective, Dr Whittington said the plaintiff was able to cope with fulltime work (page 5).

1. [52]
   During cross-examination, Dr Whittington said that the reference to “patchy recall” in his report came from his observation of the plaintiff’s presentation, but explained that he did not ask the plaintiff much about the accident itself because he was more interested in the aftermath. Dr Whittington described the plaintiff as motivated to recover, an active participant in his recovery, and was proactive as seeking the best outcome.

1. [53]
   Dr James McKeon, Thoracic Physician, gave evidence by way of a report dated 30 November 2021. Relevantly, he noted that the plaintiff suffered a severe chest wall injury from the accident, including multiple bilateral rib fractures amounting to “flail chest”.  Dr McKeon described thoracic surgery that was performed on 8 June 2019 and observed scars consistent with such surgery (pages 8, 10). He carried out respiratory function tests and concluded that the plaintiff had “significant impairment of lung function which is a restrictive impairment due to the chest wall trauma” (pages 12, 14).

1. [54]
   Dr McKeon recorded that the plaintiff’s symptoms included “chronic left chest pain since the accident” and “short[ness] of breath on exertion since the accident”(pages 8 and 9). He opined that these symptoms were attributable to the injury suffered in the accident (page 15). He assessed the chest injury as producing a 20% whole person impairment (page 17), with the prognosis being that the plaintiff will probably continue to be breathless on exertion and continue to have chronic left sided chest pain for the rest of his life (page 17).

1. [55]
   In terms of ongoing treatment or pain relief, Dr McKeon suggested an indefinite need for use of pain relief medication (page 18). He thought an exercise program in weight reduction “might benefit” the plaintiff. He did not think (further) surgery was required (page 19).

1. Post accident functioning

1. [56]
   It is clear that the plaintiff has made an excellent recovery from what are significant injuries. The plaintiff spent about five and half weeks in hospital (including one week in the ICU), during which time he underwent a leg operation and a chest operation.^[26] After that, he underwent about three months of formal rehabilitation.^[27] He received income protection payments until August 2020, but “didn’t feel comfortable going back to work” immediately after those payments ceased.^[28]

1. [57]
   Later in 2020, although the plaintiff did not feel comfortable going back to “temp chefing”, he sourced employment at the Morrison Hotel. Although he could not recall exactly when he resumed employment, the records suggest it was around 29 October 2020.^[29]

1. [58]
   The head chef at that hotel, a Mr Brett Dorstein, who was a friend of the plaintiff’s, had worked with the plaintiff both before and after the accident.^[30] Mr Dorstein observed the plaintiff to be limited in the hours he could work “and he was in pain, grabbing his back” and his ribs, “restricted with what he could do”.^[31] Mr Dorstein thought the plaintiff was “doing around 20 to 30 hours” of work per week by November 2022 (when Mr Dorstein left the Morrison Hotel) although the plaintiff acknowledges his hours had increased to around 32 to 37 hours per week.^[32]

1. [59]
   The plaintiff’s return to work and gradual increase of his hours to close to fulltime work at the Morrison Hotel is consistent with Dr Whittington’s assessment of the plaintiff as being proactive and motivated to achieve recovery.

1. [60]
   During his evidence, the plaintiff:

3. (a)
   made no complaint of there being any problems arising from his right leg being two centimetres shorter than his left;^[33]

3. (b)
   made no significant complaint about his breathing, stating that he “wasn’t really affected at work by my breathing” and it was “only cardio outside – outdoor activities” that caused difficulty;^[34] and

3. (c)
   described continuing chest pain, “not constant” but still there, “more noticeable in the Winter”,^[35] and aggravated at work by “moving abruptly, twisting and turning and bending over, grabbing things from fridges”.^[36]

1. [61]
   In cross-examination, the plaintiff explained that his preference is to work three or four days a week “so I cannot notice the pain as much”.^[37]

1. [62]
   The contemporaneous reporting suggests that during the plaintiff’s employment at the Morrison Hotel, he gradually increased his working hours until he was generally working between 30 and 37 hours per week,^[38] or 32 and 35 hours per week.^[39] When work became less available at the Morrison Hotel, he left to resume contract work with Chefs on the Run,^[40] where he has pursued a similar working arrangement since March 2023.^[41]

1. General damages

1. [63]
   Where general damages are to be awarded, the court must assess an “Injury Scale Value (ISV)” on a scale of 0 to 100^[42]. The ISV is to be assessed under the rules provided by the Civil Liability Regulation 2014 (the Regulation) and having regard to ISV’s given to similar injuries in previous cases.^[43] Interest cannot be awarded on general damages.^[44]

1. [64]
   When “assessing ISV for multiple injuries, a court must consider the range of ISV’s for the dominant injury of the multiple injuries”.^[45] Schedule 3, s 2(2) provides:

“To reflect the level of adverse impact of multiple injuries on an injured person, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only.”

1. [65]
   Further, if the “court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact” it “may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV”.^[46]

1. [66]
   The most relevant injuries to consider in this case are:

3. (a)
   the chest injury, which Dr McKeon assessed at 20% whole person impairment;

3. (b)
   the thoracic spine injury, which Dr Hudson assessed as 15% whole person impairment; and

3. (c)
   the right leg injury, which Dr Hudson assessed at 2% whole person impairment.

1. [67]
   Whilst the plaintiff acknowledges that the medical witnesses did not see the plaintiff more recently to update their opinions, it is submitted that the evidence indicates that the plaintiff’s symptoms are largely the same as they were in 2021 when he saw the doctors. Furthermore, both Dr McKeon and Dr Hudson described the relevant impairments as likely being permanent. Accordingly, it is submitted that the assessments made by Dr McKeon and Dr Hudson remain a useful guide.

1. [68]
   The plaintiff submits that the dominant injury is quite clearly the chest injury. The plaintiff submits that item 37 in Sch 4 of the Regulation is the appropriate item to utilise. It is titled “Serious Chest Injury” and provides an ISV range of 21 to 45. The examples of injury provided in item 37 include “a trauma to one or more of the following, causing permanent damage, physical disability and impairment of function … the chest … one or both of the lungs”. The plaintiff submits that Dr McKeon’s evidence makes it clear that there has been a permanent and “significant impairment of lung function”.^[47]

1. [69]
   Having regard to the full range of injuries sustained by the plaintiff, including the fractured ribs and flail chest, the sternum fracture, the clavicle fracture, the pneumothorax, and the right leg injury – the plaintiff submits that a mid-range ISV of 35 is appropriate. That equates to general damages of $84,750.

1. [70]
   The second defendant has noted that the reports of Drs McKeon, Whittington and Hudson are dated 30 November 2021, 24 September 2021 and 28 September 2021 respectively and are therefore somewhat dated.

1. [71]
   Nevertheless, the evidence shows that there has been some significant improvement with respect to the plaintiff’s lower leg injury and his psychiatric injury. There are some ongoing problems however, albeit unidentified with respect to the chest injury.

1. [72]
   The second defendant has submitted that the plaintiff’s injuries ought to be assessed at an ISV of 15 falling in injury category 38^[48] which would give rise to an award of general damages of $26,300. The second defendant also submits that no uplift is warranted on the evidence.

1. [73]
   In his report, Dr McKeon noted that the plaintiff had a “significant impairment of lung function which is a restrictive impairment due to the chest wall trauma.”^[49] In his opinion, the plaintiff will “probably continue to be breathless on exertion for the rest of his life, and will probably have chronic left side of chest pain for the rest of his life”.^[50]

1. [74]
   Dr Hudson noted that the plaintiff underwent internal fixation of the right femur and fractured left ribs together with treatment for anxiety and depression. The leg injury has resulted, as I have already indicated, in the plaintiff’s right leg being two centimetres shorter than his left.

1. [75]
   Dr Whittington noted that the plaintiff suffered symptoms of a non-specific anxiety and depressive nature and grief about the uncertainty of his future and possible loss of a career and job as a result of the injuries sustained. But, at the time of examination, that Adjustment Disorder had resolved and the plaintiff had returned to his pre-morbid level of functioning.

1. [76]
   It is clear from the reports of Drs McKeon and Hudson that the plaintiff suffered significant injuries in this accident and that he will have ongoing restriction of lung function.

1. [77]
   Taking all matters into account, item 37 in Sch 4 of the Regulation is the appropriate item to utilise. Given the nature of all of the injuries sustained though, in my view an ISV of 30 would have been applied which would equate to general damages of $52,900.^[51]

1. Past economic loss

1. [78]
   The plaintiff has claimed past economic loss of $88,291, constituted as follows:

3. (a)
   $73,000 for the period 3 June 2019 – 29 October 2020;

3. (b)
   $9,891 for the period 30 October 2020 – 26 March 2023; and

3. (c)
   $5,400 for the period 27 March 2023 – 1 October 2023.

1. [79]
   The plaintiff has submitted that these three periods of time arise from the following:

3. (a)
   the plaintiff was out of work from 3 June 2019 to 29 October 2020;

3. (b)
   the plaintiff worked at the Morrison Hotel from 29 October 2020 – 26 March 2023; and

3. (c)
   the plaintiff worked for Chefs on the Run from 27 March 2023 – 1 October 2023.

1. [80]
   As to the first of those periods, which is a period of 73 weeks from 3 June 2019 to about 29 October 2020, the plaintiff was out of work due to the injuries sustained. For that period, it is submitted that a reasonable measure of his loss is $73,000. That is based on 73 weeks of loss at the rate of $1,000 after tax per week. The figure of $1,000 is appropriate because, prior to the accident, the plaintiff’s taxation notices of assessment show:^[52]

3. (a)
   for the 2016/2017 year, taxable income of $62,413 or about $49,397 after tax: an average of $949.94 after tax per week;

3. (b)
   for the 2017/2018 year, taxable income of $66,507 or about $52,015 after tax: an average of $1,000.28 after tax per week; and

3. (c)
   for the 2018/2019 year, taxable income of $64,775 or about $51,989 after tax: an average of $999.78 after tax per week.

1. [81]
   Having regard to that history of employment income, the plaintiff submits that $1,000 after tax per week is a reasonable measure of the earning capacity the plaintiff would likely have exercised but for the accident.

1. [82]
   As to the second period, the plaintiff returned to work as a chef from about 29 October 2020 and worked at the Morrison Hotel until about March 2023 – a period of about 125 weeks. His total earnings during that period were about $115,109, consisting of:^[53]

3. (a)
   from 29 October 2020 to 30 June 2021, he earned about $38,680.04 gross or $30,455.04 after tax (based on Australian Leisure and Hospitality Group Pty Ltd income statement for period 29 October 2020 to 30 June 2021);

3. (b)
   from 1 July 2021 to 30 June 2022, he earned taxable income of $59,464 or about $48,603 after tax (based on ATO notice of assessment); and

3. (c)
   from 1 July 2022 to March 2023, he earned about $36,051 after tax (being a total of $50,038 after tax less earnings of $13,987 after tax from Chefs on the Run).

1. [83]
   The plaintiff once again adopts the average of pre-injury earnings of $1,000 after tax per week, and on that basis submits that he would reasonably have expected to earn about $125,000 after tax during that 125-week period had he not been injured. He submits that as he only earned $115,109 after tax the difference of $9,891 is a reasonable measure of his loss during that period.

1. [84]
   As to the third period, which is 27 weeks from 27 March 2023 to 1 October 2023, during which the plaintiff worked for Chefs on the Run, the plaintiff submits that the evidence reveals that:

3. (a)
   during that period, he worked an average of about 33.52 hours per week and earned an average of about $1,025 after tax per week; and

3. (b)
   there were five weeks in which he worked 38 hours or more.^[54] Across those five weeks his average earnings were about $1,237 after tax per week.

1. [85]
   The plaintiff has submitted that his earnings depend both on the number of hours worked and the type of shift (e.g. weekend shifts generate higher rates). He submits though that a review of the payslips show that:

3. (a)
   working an average of 33.5 hours per week generates about $1,025 per week;

3. (b)
   working around 40 hours (or just under) generates about $1,150 per week; and

3. (c)
   working over 40 hours per week can generate about $1,237 per week.

1. [86]
   The plaintiff submits therefore that if had regularly worked 40 hours per week or more he might reasonably be expected to have earned around $1,150 to $1,237 per week instead of the average of $1,025 per week that he in fact earned. This suggests a possible loss of around $125 to $200 per week.

1. [87]
   It is submitted that the conclusion that the plaintiff would have regularly worked 40 hours or more per week but for his injuries arises clearly from the evidence. The plaintiff submits that before the accident he generally worked 50 or 60 hours per week^[55] and that if he did not have chest problems, he “would be doing a lot more remote work” which is “a guaranteed 40 hours a week” and “would be begging for more hours”.^[56]

1. [88]
   Accordingly, it is submitted that a reasonable measure of the plaintiff’s loss in the 27 weeks since March 2023 is something around $125 to $200 per week: a total of about $3,375 to $5,400. The plaintiff has adopted the midpoint of $4,300 as a reasonable measure of his loss during that period.

1. [89]
   It should also be noted that the evidence shows that the plaintiff received income protection insurance payments in a total amount of $76,131.93 covering the period 3 June 2019 to 16 August 2020.^[57] These payments are not to be taken into account when assessing damages, and the payments will likely be refundable to the income protection insurer.^[58] The plaintiff acknowledges though that the receipt of insurance monies means that he was not out of pocket during the period up to August 2020 and accordingly he makes no claim for interest on damages for that period.

1. [90]
   He does claim interest though in a total sum of $15,291 covering his economic loss from 29 October 2020 to date. He has submitted, in my view quite correctly, that where interest is awarded on damages for past losses, it must be calculated at not more than the rate for 10 year treasury bonds published by the Reserve Bank of Australia under “capital market yields – Government Bonds – daily – F2” as at the beginning of the quarter in which the award of interest is made.^[59] The plaintiff submits that the rate is presently 4.53 percent.^[60] As such, the plaintiff claims interest in the amount of $1,039.

1. [91]
   The second defendant has submitted that past economic loss should be quantified in the amount of $60,000.

1. [92]
   In that regard, the second defendant has submitted that there has been no probative evidence indicating that:

3. (a)
   the plaintiff was exercising an earning capacity of $1,000 per week;

3. (b)
   for what period of time that earning capacity was diminished; and

3. (c)
   how much it was diminished.

1. [93]
   The second defendant further submits that the financial evidence (i.e., the payslips)^[61] show that the plaintiff has been essentially working fulltime hours – which is consistent with what he told Dr Whittington in September 2021, and that the inevitable conclusion is that the plaintiff has been working fulltime hours since that time.

1. [94]
   Furthermore, the second defendant submits that the claim for past economic loss cannot be “precisely calculated by reference to a defined loss” and, that in such circumstances, s 55 of the Civil Liability Act 2003 applies.

1. [95]
   Section 55 states:

3. “55
   When earnings can not be precisely calculated

3. (1)
   This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

3. (2)
   The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

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

3. (4)
   The limitation mentioned in section 54(2) applies to an award of damages under this section.”

1. [96]
   I disagree with the defendants’ submissions on this point. In my view, the approach adopted by the plaintiff allows for precise calculation and, given his taxable income for the financial years ending 30 June 2017, 2018 and 2019, a loss at the rate of $950 per week after tax for the period up to 29 October 2020 would be appropriate, which calculates to $69,350.

1. [97]
   For the period from 29 October 2020 to 28 September 2021 (the date of Dr Whittington’s report), using the plaintiff’s figures for that period, the plaintiff earned $44,202 yet could have expected to earn $48,000 were it not for his injuries.

1. [98]
   As I have already noted, in my view the evidence strongly supports the conclusion that the plaintiff has been working fulltime hours since September 2021. He may have worked longer hours since that time were it not for his injuries, but I am not persuaded that he would have nor that he did not have the capacity to do so.

1. [99]
   It follows that I calculate the value of the plaintiff’s past economic loss at $73,148 plus interest on the sum of $3,798 (from 28 October 2020 to 28 September 2021) in the amount of $86 ($3,798 x 4.53 percent x 0.5).

1. Past loss of superannuation

1. [100]
   The plaintiff also claims for lost superannuation contributions. The superannuation guarantee rates varied over the relevant period:

3. (a)
   9.5 percent until 30 June 2021; and

3. (b)
   10 percent for the 2021/2022 income year.

1. [101]
   On my calculations that would amount to $6,891.

1. Future economic loss

1. [102]
   As the plaintiff has acknowledged in submissions, he is not to be compensated for loss of earnings, rather for a loss of earning capacity.^[62]

1. [103]
   As the Court of Appeal said in Meechan v Savco Earth Moving Pty Ltd^[63] at [49]:

3. “[49]
   … it is unnecessary for a 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.”

1. [104]
   It follows that an assessment of future economic loss must take account of, and place value on, the risk of financial loss being incurred.^[64]

1. [105]
   In this matter, after explaining that he was now working with Chefs on the Run doing temp or “on call” work, the plaintiff was asked how many days per week he tended to work. He said:^[65]

“I was trying to tell them I’m only interested in three to four days, but they’re looking to get as many people in, in the shifts, so if I have said no to those then I would had [sic] my hours reduced and I needed some sort of hours so it’s up and down.”

1. [106]
   When asked why his preference was for “three or four days a week” he responded:

“Just so I cannot notice the pain as much”.^[66]

1. [107]
   A plaintiff’s choice to limit his or her working duties or hours does not necessarily render the resulting loss non-compensable: Medlin v State Government Insurance Commission (1995) 182 CLR 1. In Hirst v Nominal Defendant [2005] 2 Qd R 133, Keane JA (Jerrard JA and Douglas J agreeing) said at [29], albeit in a different context:

“The reasoning in Medlin confirms the propositions that voluntary or deliberate or unusual conduct on the part of a plaintiff does not necessarily sever the causal nexus so as to relieve a negligent defendant from liability for loss suffered by a plaintiff; and that it is necessary to have regard to the extent to which the plaintiff's voluntary conduct has been constrained by the defendant's misconduct, and then to ask whether as between plaintiff and defendant it was reasonable of the plaintiff to make the choice which was the immediate cause of the loss.”

1. [108]
   In Brittain v The Commonwealth of Australia [2004] NSWCA 83, again with reference to Medlin, the New South Wales Court of Appeal emphasised that the important consideration is the length between the relevant injury and the plaintiff’s decision. The Court held that it was correct in principle to say that if the injury was a material reason for a plaintiff’s decision to leave particular employment, then causation will be established.

1. [109]
   The plaintiff submits that even though he now works close to fulltime hours, he does not work as many hours as he did before his injuries and an appropriate measure of his future economic loss is a comparison between the 40 plus hours per week that he would likely be working but for the injuries and the number of hours that he is in fact likely to work as a result of the injuries.

1. [110]
   He submits that a reasonable measure of his continuing loss is something around $125 to $200 per week. Given that he has another 22 years until he reaches the expected retirement age of 67, it is submitted that the appropriate five percent multiplier is 704, giving a present-day value for his loss of between $88,000 (i.e., $125 x 704) and $140,800 (i.e., $200 x 704). By adopting a midpoint of $114,000, and after allowing for future contingencies at the rate of 15 percent, a sum of $96,000 is submitted to be a reasonable estimate of future economic loss.

1. [111]
   The plaintiff’s position however, is entirely reliant upon the Court accepting his evidence that were it not for his injuries, he would work at least 40 hours per week.

1. [112]
   As I have already noted, the plaintiff told Dr Whittington in September 2021 that he was back working fulltime hours. The plaintiff’s payslips demonstrate that he is still working fulltime hours and, on some weeks, has worked up to 50 hours. Those payslips also show that the plaintiff has received penalty rates for weekend work or nightshifts.

1. [113]
   The evidence of Dr Hudson is that as at September 2021 the plaintiff complained of experiencing pain around the left chest from the posterior aspect of the chest around to the anterolateral aspect of the left side of his chest and that the symptoms are worse with activity, especially twisting. Dr Hudson noted however, that there has been no major complaint of thoracic pain although the plaintiff does get out of breath easily.

1. [114]
   On the basis of this history, Dr Hudson was of the view that the plaintiff can only work reduced hours and that this is likely to be permanent. Yet, as I have already stated, the plaintiff is now working fulltime hours and on occasion up to 50 hours per week. I therefore place little weight on Dr Hudson’s opinion as to the complainant’s future work capacity.

1. [115]
   Dr McKeon’s opinion is that the plaintiff will probably continue to be breathless on exertion and will probably have left sided chest pain for the remainder of his life.

1. [116]
   The second defendant has submitted that the plaintiff has failed to establish any basis for an allowance of future economic loss because:

3. (a)
   he is back to fulltime work and has been since at least 28 September 2021;

3. (b)
   recent payslips show that he is working up to 50 hours per week and in receipt of appropriate penalty rates when they have application; and

3. (c)
   the chest pain therefore has not impeded his ability to work fulltime hours or beyond.

1. [117]
   In evidence, the plaintiff said that in 2021 he wanted to work only three days a week because he “Wanted to enjoy life a bit. Yeah. To settle the pain, yeah.”^[67] He said that the pain in his chest was not “as obvious” when he was at home.^[68] He also said that the pain was more obvious in Winter and that he currently uses at least one packet of Nurofen per Winter.^[69]

1. [118]
   In cross-examination the plaintiff agreed that when he was working at the Morrison Hotel, he showed that “he had the capacity to be able to do fulltime shifts on an essentially fulltime basis”.^[70] He said however that he would prefer to do only three shifts per week.^[71]

1. [119]
   Given the hours that the plaintiff has been working now for some substantial period, I am not persuaded that he has demonstrated a loss of earning capacity because of his injuries. Whilst I accept he suffers some left sided chest pain, on the evidence the level of pain does not diminish his capacity to work more hours if he should wish to do so. Furthermore, whatever the level of pain may be, it apparently can be effectively managed by the consumption of a small amount of a relatively weak pain killer.

1. [120]
   Given that evidence, the plaintiff has not satisfied me on the balance of probabilities that he will suffer a loss of future earning capacity.

1. Special damages

1. [121]
   Exhibit 11 shows that, as at late 2021, Medicare had covered $2,075 worth of treatment expenses with such amount refundable to Medicare for any damages. The plaintiff accepts that any further out of pocket expenses have not been specifically quantified and are likely to be modest. He submits that they are nevertheless compensable and submits that $3,000 inclusive of the Medicare refund is a reasonable measure for past special damages.

1. [122]
   The plaintiff also submits that it is not anticipated that he will incur significant injury related expenses in the future but submits that it is likely he will require the use of pain relief medication from time to time. He also submits that there is a possibility future surgery which he acknowledges is of an unquantified likelihood.^[7] In respect of potential future expenses, the plaintiff claims a global sum of $2,000.

1. [123]
   The plaintiff has acknowledged there has been no objective evidence forwarded to support these claims. In fact, the assertion that the plaintiff may require future surgery is purely speculative.

1. [124]
   In those circumstances, the second defendant has submitted that a total sum of $3,000 to cover both past and future special damages, would effectively cover the cost of one packet of Nurofen a year, would have been appropriate.

1. [125]
   I agree with the defendants’ submission.

1. [126]
   I therefore conclude that the quantum of the plaintiff’s damages would have been as follows if he had been successful on liability, putting aside any issue of contributory negligence which I am unable to determine on the basis of the findings that I have made:

1. Order

3. 1.
   The claim is dismissed.

3. 2.
   The parties to be heard on costs.