Ford v Baker[2025] QDC 43

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff sues for damages for personal injury arising from a motor vehicle accident which occurred on 10 October 2020. The plaintiff was the rider of a moped. The first defendant was the driver of a Ford Ranger utility. The plaintiff was travelling in an easterly direction on Nerang Connection Road, Nerang in the State of Queensland. The first defendant was approaching the plaintiff in a westerly direction. The first defendant commenced a right turn into Nerang Street into the path of the plaintiff and collided with the moped. The second defendant is the first defendant’s insurer and conducted this proceeding on her behalf.
2. [2]
   Liability is admitted. The trial was confined to issues as to the nature and extent of the injuries and the quantum of damages.
3. [3]
   The plaintiff was self-represented at trial but had previously been represented by Slater and Gordon lawyers. On 28 August 2024 an Amended Statement of Claim was filed by the, by then, self-represented plaintiff. The only amendment to the Statement of Claim was in relation to paragraph 5(a) which specified the nature of the fracture to the plaintiff’s lower limb.
4. [4]
   It is not in dispute that the plaintiff suffered:

   1. a fracture to his left lower leg and dislocation to ankle;
   2. an injury to his right thigh;
   3. a fracture to his right little finger; and
   4. as a consequence of his injuries, the plaintiff experienced some pain and suffering and incurred some medical and pharmaceutical expenses.
5. [5]
   The defendants otherwise deny the plaintiff suffered any other injury as a result of the accident. The plaintiff claims, in addition, he has suffered a psychological injury.

Issues in dispute

6. [6]
   The following is in dispute between the parties:

   1. The assessment of the plaintiff’s damages suffered as a result of injuries suffered in the motor vehicle accident on 10 October 2020.
   2. Whether as a consequence of the accident the plaintiff suffered a psychological injury.
   3. Whether as a consequence of his injuries, and if so to what extent, the plaintiff:
      1. Has experienced and continues to experience pain and suffering;
      2. Has been left with a permanent disability;
      3. Has lost some of the amenities of life;
      4. Has incurred and in the future will incur special damages in the form of medical, pharmaceutical, travelling and other incidental expenses;
      5. Has received and in the future will require care, assistance and quasi-nursing services.
   4. For the purposes of the assessment of general damages, the correct classification of any compensable injuries sustained by the plaintiff pursuant to the Civil Liability Regulation 2014 (Qld).
   5. The extent to which the plaintiff has suffered special damages as a consequence of the accident.
   6. Whether the plaintiff will incur future special damages as a consequence of the accident and if so, the extent of such special damages.
   7. Whether, and if so to what extent, past and future special damages claimed by the plaintiff relate to injuries or conditions that the plaintiff suffered or experienced prior to the motor vehicle accident including longstanding degenerative changes to the lumbosacral spine, injury to the thoracic spine, cervical spine and right shoulder as a consequence of a motor vehicle accident on or about July 2018.
   8. Whether in the past:
      1. The plaintiff has required care and assistance necessarily as a consequence of the accident;
      2. Any need for such care and assistance arose solely out of an injury for which damages are to be awarded;
      3. The plaintiff was actually provided with any paid care and if so the extent of the care provided.
   9. Whether in the future:
      1. The plaintiff will necessarily require care and assistance as a consequence of the accident;
      2. Any need for such services will arise solely out of an injury for which damages are to be awarded;
      3. The requirement for care will satisfy the threshold in section 59 of the Civil Liability Act 2003 (Qld);
      4. Whether the plaintiff will actually be provided with any care and if so the extent of the care which will be provided.
   10. Whether, and if so to what extent, past and future care claimed by the plaintiff relates to injuries or conditions that the plaintiff suffered or experienced prior to the motor vehicle accident including longstanding degenerative changes to the lumbosacral spine, injury to the thoracic spine, cervical spine and right shoulder as a consequence of a motor vehicle accident on or about July 2018.
   11. The amount, if any, to be assessed for:
       1. General damages;
       2. Past special damages;
       3. Future special damages;
       4. Past paid care and assistance;
       5. Future care and assistance.

The evidence at trial

7. [7]
   The plaintiff was self-represented. The evidence in the trial was brief. The plaintiff’s case consisted of himself and two lay witnesses. Importantly, the plaintiff did not call any expert witnesses including those mentioned in his amended Statement of Claim filed on 28 August 2024. The trial had previously been adjourned on 23 August 2024 to allow the plaintiff to call expert witnesses and to consider obtaining legal representation. It was raised with the plaintiff at the time of the previous trial listing and, subsequently, on a number of review mentions for the current trial listing that the defendants required any expert relied upon by the plaintiff for cross-examination. The plaintiff ultimately determined that he would represent himself and proceed to trial without calling any expert witnesses.^[1]
8. [8]
   The defendants called three expert witnesses: Dr Halliday, an orthopaedic surgeon; and two occupational therapists, Ms Evans and Ms White.
9. [9]
   The medical records of the Gold Coast Hospital were tendered by consent as was a radiologist’s report. In relation to the GP records of Ashmore Medical Centre, they were tendered by the defendants through the proper officer of the Medical Practice. The defendants also called a representative from Allianz insurance who gave evidence of the services paid for by the insurer. This became an issue as the plaintiff was contending that some of the services weren’t provided.
10. [10]
    The plaintiff bears the onus of proof to satisfy the court on the balance of probabilities that his claim should be accepted. I did not find the plaintiff to be a credible and reliable witness. His evidence in this court was internally inconsistent particularly in relation to his physical health prior to the accident and as to the level of care he required and received both prior to the accident and subsequently. His evidence was also inconsistent with the GP records and his self-report to the experts. I elaborate on this below when considering each of the pleaded claims.

Determination

General damages

11. [11]
    The plaintiff suffered injuries as a result of the collision. The defendants admit liability for the collision. Therefore the plaintiff is entitled to damages calculated in accordance with ss 61 and 62 of the Civil Liability Act 2003 (Qld) (CLA) and Part 2 of the Civil Liability Regulations 2014 (Qld) (CLR).
12. [12]
    There is some dispute as to the extent of the injuries. In my view, the plaintiff’s injuries were:

    1. A fracture to his left lower leg and dislocation to ankle;
    2. An injury to his right thigh; and
    3. A fracture to his right little finger.
13. [13]
    The plaintiff pleaded, in addition, that he suffered a psychological injury as a result of the accident. He did not give evidence of this at trial and no expert evidence was called that the plaintiff suffered a psychological injury as a result of the accident. The plaintiff was asked whether he was alleging that he suffered any other injury (to that detailed at paragraph 12 above) and the plaintiff replied “no”.^[2]  I am not satisfied that the plaintiff suffered a psychological injury.
14. [14]
    As there are multiple injuries, the question needs to be considered of how to address the overall assessment in terms of general damages. As McMeekin J stated in Allwood v Wilson and Anor [2011] QSC 180:

15. [15]
    In my view, the plaintiff’s general damages can be accommodated under the following item numbers of Schedule 4 of the CLR:

16. [16]
    The dominant injury is the fracture to the left lower leg and dislocation to the ankle which is identified as item 142 in the CLR as Serious ankle injury with an ISV range of 11-20.
17. [17]
    The only expert orthopaedic evidence was Dr Brett Halliday. He examined the plaintiff on 27 May 2022 and provided a report on the same date (exhibit 1). I accept his opinions expressed in the report.

18. [18]
    Dr Halliday states:

“[The plaintiff] was the rider of a motor scooter involved in an accident with a car on 10 October 2020. In the accident he suffered a fractured right little finger, a fracture dislocation of the left ankle (bimalleolar) and a right thigh contusion. His right thigh injury has gone on to resolve. His fractures have healed. He has ongoing issues with his right little finger and ankle.”

19. [19]
    Dr Halliday sets out in more detail the injuries and surgeries as follows:

“…he was identified as having a left ankle fracture, bimalleolar Weber C fracture dislocation of the left ankle, a right thigh contusion (Morel-Lavallee lesion) and a right little finger middle phalanx fracture which was closed.

In his initial stay in hospital he spent approximately four days. He had open reduction and internal fixation of his tibial fracture through medial and lateral incision. A diastasis screw was also inserted. He also had his right little finger internally fixed at the same operation with a small plate. He estimates that he was in hospital for four days before being discharged home. He reports that he wore a boot and was on crutches for three months. At times he used a wheelchair to help with his mobility.

Since his initial hospital presentation he has had further surgeries. On 3 March 2021 he had his diastasis screw removed. In September of 2021 he had his medial screw removed and the deltoid ligament was repaired…Through his rehabilitation he has had extensive physiotherapy and hand therapy.”

20. [20]
    Dr Halliday states the plaintiff reported:

“…his right thigh soft tissue injury has completely recovered. He has no ongoing issues with his right thigh…the little finger itself is not numb and has normal sensation. There is a restricted range of motion of the little finger of the right hand. The lack of full range makes the finger annoying. It gets in the way when he wants to put his hand in his pocket or use it for other things. He cannot put it flat on the table. There is no significant pain in the hand.

His left ankle is the main problem. He wears a brace constantly. He has medial and lateral scars. He complains of pain medially that radiates up the posterior calf. The lateral toes are numb. He complains of a restricted range of motion which makes it difficult for him to walk properly. He limps all the time and finds that his ankle feels unstable. He has difficulty walking on uneven ground. It does not swell any longer.”

21. [21]
    On examination, Dr Halliday noted the little finger range of motion as “MCPJ -20 to 95 degrees, PIPJ 5 to 80 degrees, DIPJ 10 to 45 degrees.” In relation to the left lower limb, one centimetre of calf wasting was noted. The left ankle range of motion was restricted (10 degrees on dorsiflexion, 30 degrees on planta flexion, 2 degrees on inversion and eversion). It was observed that passive movement is no greater than active. The ankle is normally aligned. The plaintiff is unable to squat fully; he is able to walk on his heels briefly but not on his toes. There is reduced sensation on the lateral aspect of the foot.
22. [22]
    Mr Lord, who completed the plaintiff’s exercise physiology, said in June 2022 that his gym-based resistance training had resulted in further improvements to his lower limb strength and endurance.^[3]
23. [23]
    Dr Halliday calculated a whole person impairment of 12 percent consisting of 2 percent relating to the injury to the right little finger and a total of 10 percent relating to the lower limb injury. Explaining this in more detail, Dr Halliday opined:

“…with regard to his hand, his right little finger restricted range of motion of the distal interphalangeal joint affords a 15% impairment of the digit. The restricted range of motion of the proximal interphalangeal joint affords a 14% impairment of the digit. There is no restriction of the metacarpophalangeal joint. These can be combined to a 27% finger impairment which equates to a 3% impairment of the hand, a 3% impairment of the upper limb, which equates to a 2% impairment of the whole person, AMA5, Chapter 16, Figures 16-21, 16-23 and 16-25; Tables 16-1,16-2 and 16-3.

With regard to his right leg, his restricted range of motion of the ankle and hindfoot afford a 6% impairment of the whole person. This should be combined with the surgical and traumatic scars of the lower limb which afford a 2% impairment of the whole person. The injury to the lateral plantar branch of the tibial nerve affords a 2% impairment of the whole person, AMA5, Chapter 17, Table 17-37.”

24. [24]
    Dr Halliday opined that no additional treatment was likely to assist any further recovery. No surgery was indicated. He was wearing a brace on his ankle which is supportive. It was noted that this is a reasonable technique and may need to be resupplied every 12 months. The extensive amount of prescription drug use for his pain was noted to be the same as what he was on for his sciatica prior to the accident. As such, no increase in drug use is required.
25. [25]
    Section 9 of the CLR states that in assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case including:

    1. The injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life;
    2. The effects of a pre-existing condition of the injured person;
    3. Difficulties in life likely to have emerged for the injured person whether or not the injury happened;
    4. In assessing an ISV for multiple injuries, the range for and other provisions of Schedule 4 in relation to an injury other than the dominant injury of the multiple injuries.
26. [26]
    The plaintiff was 57 at the time of the injury and is 62 now. He has a significant medical history (see further at paragraph 40) although it is clear, as the defendants accept, that the plaintiff “sustained some nasty orthopaedic injuries in the subject collision”.  Whilst I have determined that I do not generally consider the plaintiff to be a credible and reliable witness (see further at paragraphs 36-40), I do accept that he is “experiencing pain and suffering because of the accident”.^[4] The plaintiff can no longer do some activities which he previously enjoyed including walking on the beach as he can’t walk along uneven ground.^[5] Further, he can no longer go up and down a ladder or flights of stairs and his injury impacts on the activities he can enjoy with his son^[6] such as going to the park and playing sports together.^[7] He also used to assist his partner to mow her lawn and do gardening which he no longer can do.^[8]
27. [27]
    Allowing for the additional injuries, I consider that an ISV of 15 properly accounts for all the injuries and impairment. By reference to Schedule 1 of the Civil Liability Indexation Notice 2024 and having regard to the date of the plaintiff’s injuries an ISV of 15 yields $28,700.00.

Special damages

28. [28]
    The plaintiff pleaded in his amended Statement of Claim that he has suffered special damages totalling $2,857.96 calculated as follows:

    1. Medicare charge - $857.96;
    2. Medical/gap (global claim) - $500;
    3. Pharmaceutical expenses (global claim) - $1000; and
    4. Travel expenses (global claim) - $500
29. [29]
    The plaintiff did not provide any evidence in support of this part of his claim other than:

    1. in relation to the Medicare charge, he said in evidence “I’ve got that [meaning in his file]”.^[9] Given that the plaintiff is self-represented, I will award the $857.96;

2. $70.00 had not been paid by the insurer to the chemist in relation to prescriptions.^[10] As I detail below, the plaintiff’s Palexia medication has increased since the accident (increased from 150 to 250 mg and is now twice daily). Given the contents of Exhibit 7 which details what has been paid by the second defendant as part of its rehabilitation commitment under s 51 of the Motor Accident Insurance Act (up to 18 October 2022 for Palexia tabs),  I will award $250.00 as a global claim.

30. [30]
    The plaintiff pleads future special damages in the sum of $90,217.00 as follows:

    1. Cost of future pain management, specialist review and surgery as contemplated by Dr Sathu in the sum of $20,000.00;

There was insufficient evidence in the trial to substantiate this part of the claim (although I have awarded a sum as detailed per Dr Halliday’s report). The plaintiff did give evidence that he required a further surgery^[11] but gave no evidence as to what this was or, indeed, whether it related to the accident. The plaintiff did mention Dr Sathu and Dr Brown but he then stated that “he was not relying on him (Dr Sathu)”^[12] and no evidence was called from either doctor. 

Dr Halliday opined that no additional treatment was likely to assist any further recovery. No surgery is indicated. He noted that the anatomical reduction and repair of the original injury has been optimal and therefore the plaintiff’s risk of developing osteoarthritis has been limited as much as possible. His opinion was not disputed.

Dr Halliday noted that the plaintiff is wearing a brace on his ankle which is supportive. It was noted that this is a reasonable technique and may need to be resupplied every 12 months. No evidence was given as to the cost of same but in closing submissions, counsel for the defendants conceded that a “modest sum” could be allowed for this. I allow $2000.00 for the cost of ankle bracing.

2. Cost of future physiotherapy as contemplated by Ms Attard the sum of $50,895.00 being the ongoing cost of same averaged at $90 per week for a further 25 years on the 5% tables (multiplier 754) discounted by 25% for contingencies;

There was no evidence in the trial to substantiate this part of the claim. There was no evidence from Ms Attard. Dr Halliday opines that no additional treatment is likely to assist with any further recovery. There is no reason to not accept Dr Halliday’s opinion.

3. For the cost of an occupational therapist home assessment as recommended by Ms Attard the sum of $1552.00;

There was no evidence in the trial to substantiate this part of the claim. It was noted by Ms Evans, who performed an Initial Needs Assessment at the request of the second defendant, that the plaintiff lives in a Department of housing complex and the plaintiff advised that this complex was dedicated to people with disabilities. The plaintiff advised Ms Evans that this property had been allocated to his mother; however because he lived in the home with her, he has been able to remain in the accommodation since her passing. Ms Evans noted that the bathroom has been designed for people with disabilities.

4. For the cost of future pharmaceuticals, the sum of $3770.00 being the ongoing cost of painkillers averaged at $10.00 per week for a further 25 years on the 5% tables discounted by 25% for contingencies; and
5. For the cost of future medical expenses, a global sum of $10,000 for the cost of attendances on medical practitioners, therapists and chemists in order to treat the plaintiff’s ongoing symptoms and any future aggravations/exacerbations; and
6. For future travelling expenses incurred in attending on medical practitioners, therapists and chemists a global sum of $4,000.00.

The plaintiff gave evidence that he was on “a very low dosage of Palexia and Lyrica before the accident, and now they’ve increased it up to a – a higher dosage and I’ve got- I’m on other medication as well.”^[13] He stated that his Palexia has “gone from one daily to two daily.”^[14] The General Practitioner records confirm that the plaintiff was prescribed up to Lyrica 300mg, Palexia 150 mg, Endep 25mg  and Valium 5 mg prior to the accident. He continues to be prescribed the same drugs as before the accident although the Palexia has increased to 250mg twice daily.^[15] Whilst Dr Halliday’s evidence was that “the extensive amount of prescription drug use for his pain was noted to be the same as what he was on for his sciatica prior to the accident. As such, no increase in drug use is required”, the medical records support the plaintiff’s evidence that his Palexia has increased in dosage and it is now two daily.

No other evidence was provided to substantiate this part of the claim.

Given the nature of the injury, the plaintiff’s evidence, the General Practitioner records, and what was paid by the second defendant in the past^[16], I will award a global sum of $1000.00.

Past care and assistance

31. [31]
    The plaintiff pleads for paid care and assistance provided by an “acquaintance” from his local church for activities for daily living and personal care. The plaintiff claims the sum of $40,000.00 calculated as follows:

    1. During the period leading up to approximately October 2021 the plaintiff required a total amount of care and assistance of not less than 28 hours per week;
    2. Thereafter the plaintiff required not less than 14 hours per week care and assistance;
    3. The plaintiff has paid for such care at an agreed rate of $20 per hour;
    4. Accordingly, the plaintiff claims not less than 2000 hours of care at $20/hour.
32. [32]
    The plaintiff, in his evidence, admitted that he had not yet paid for the care and the amended Statement of claim was incorrect.^[17] Mr McGowan, who is the person the plaintiff nominated as having provided the care for which he should be paid, stated that he had not yet been paid. Mr McGowan did state that he expected to be paid but then said “…at the end of the day, it wasn’t about the money.  It was about being there for someone that needed help.”^[18] There is no evidence of the plaintiff having paid for any of the services allegedly provided to him.
33. [33]
    In all the circumstances, I will go on to consider whether the claim should be a gratuitous care claim under s 59 of the CLA.
34. [34]
    Section 59 of the CLA provides as follows:

“59 Damages for gratuitous services provided to an injured person

1. Damages for gratuitous services provided to an injured person are not to be awarded unless –
   1. the services are necessary; and
   2. the need for the services arises solely out of the injury in relation  to which damages are awarded; and
   3. the services are provided, or are to be provided—
      1. for at least 6 hours per week; and
      2. for at least 6 months.
2. Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
3. In assessing damages for gratuitous services, a court must take into account—
   1. any offsetting benefit the service provider obtains through providing the services; and
   2. periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.

35. [35]
    I am not satisfied the legislative test has been met. Damages are not to be awarded unless the services are necessary, the need for them arises solely out of the injury in relation to which the damages are awarded, the services are provided or are to be provided for at least six hours a week for at least six months and the services are not of the same kind that were being provided for the injured person before the injury occurred.
36. [36]
    In my view, the plaintiff was not a credible and reliable witness including in relation to the care that had been provided to him as a result of the accident, what will need to be provided to him in the future and his pre-existing injuries. I note that Dr Halliday assessed him as a “particularly difficult historian” and “while not critical to the orthopaedic assessment, it makes the history- taking and understanding of pre-injury activity levels, occupation and post-injury rehabilitation extremely difficult to interpret from the statements made”.
37. [37]
    The plaintiff’s evidence was internally inconsistent and inconsistent with what he self-reported to the experts and at the hospital following the accident. It was also unreliable. For example, the plaintiff said that prior to the accident he was “just looking after my mum and just mowing the lawns and do basic stuff that I had to do… tidying up a bit and mowing the lawns and going down to get the shopping…I was cleaning the house with me and my step-father.”^[19] However, he then gave evidence that his mother died in 2013 and his step-father in 2018.^[20]
38. [38]
    The plaintiff’s evidence was that prior to the accident he was doing the day-to-day household requirements and that after the accident Mr McGowan did them^[21] but he then stated that prior to the accident his partner would “come over and … give me a hand to – like she helped me cook meals cause I can’t cook…”.^[22] The plaintiff later said that “before the accident he was eating properly and was cooking heaps of stuff…stew...”.^[23] The plaintiff stated he was doing the cleaning prior to the accident^[24] however agreed that he told staff at the hospital that he had longstanding sciatic nerve pain for over 15 years; was able to do minimal activities of daily living and was currently unemployed.^[25] Consistent with what the plaintiff reported at the hospital (but not his evidence in this court), Ms White, Occupational Therapist, states that the plaintiff reported that prior to the accident his partner ordinarily completed the domestic chores due to his chronic back and left sciatic leg pain but that he was independent with personal cares, daily light cleaning and tidying, laundering and daily shopping.
39. [39]
    As to care and assistance after the accident, the plaintiff gave evidence that Mr McGowan “should be paid for the care that he done for me for the 14 weeks… I couldn’t get off my bed for 14 weeks…”.^[26] Mr McGowan gave similar evidence that for 14 weeks “[the plaintiff] wasn’t able to do anything… I had to stay 24 hours some days”.^[27] Both gave evidence that the care was continuing. However, inconsistent with this evidence, the plaintiff agreed in cross-examination that he told Dr Halliday at the time of assessment that he was “once more independent in personal activities of daily living and domestic tasks”^[28] and agreed that at the time he went home from hospital he was transferring himself in and out of bed and was mobile with crutches^[29]. Further, the plaintiff said in evidence that Mr McGowan was doing “part time” at the time of Ms Evan’s assessment (less than 8 weeks post accident): “bits and pieces here and there…cause I just said to him I only want him there part-time…sometimes he’d do a couple of loads of washing…moved the bins out…”.^[30] Further, that six weeks after the accident “[Mr McGowan] was still doing some care but…some care I got from me missus…”.^[31]
40. [40]
    Despite the plaintiff’s evidence in this court that he had “minor”^[32] sciatic problems and that his sciatica condition “wasn’t bad…it wasn’t bad”,^[33] it is clear that the plaintiff suffered pre-existing injuries of a severity sufficient for him to be seen regularly by GPs, prescribed medication in regular doses and given medical certificates over an extended period that he was unfit for work. A summary of the relevant GP’s notes are duplicated below (there are other entries but I have only included those which were accepted by the plaintiff in his evidence). I further note that the plaintiff eventually agreed in cross-examination that he was on “heavy pain killers for [his] lower back because it was causing [him] significant difficulty” before the accident.^[34]

41. [41]
    Dr Halliday details in his report “significant pre-existing conditions” including bilateral peripheral neuropathy and left leg sciatica. Dr Halliday opines “there is a significant pre-existing condition related to the lumbar spine with leg sciatica and a previously diagnosed L4/5 protrusion. In my opinion this condition has not been made worse by the accident and was causing significant difficulty prior to the accident and in fact just the month prior to the accident a C scan had been arranged because of the left leg sciatica.” Further, Dr Halliday opined that there was no structural change in the lumbar spine as a result of the motor vehicle accident. Dr Halliday noted that prior to the accident, the plaintiff suffered disabling left sided sciatica which he continues to suffer with.
42. [42]
    In terms of gratuitous assistance, Dr Halliday states “Mr Ford reports that he was independent prior to the accident despite his pre-existing conditions. He is currently independent. There was a period of time of approximately six to nine months where he relied on others to assist with his domestic chores. Over time he has once more regained his independence. No further assistance will be required.” As I have detailed above, inconsistently with what he reported to Dr Halliday, the plaintiff in evidence stated that he is not currently independent and heavily relies on Mr McGowan although accepted that he did tell Dr Halliday that he was currently independent in his own personal activities of daily living and domestic tasks and that was true.^[36]
43. [43]
    Ms Evans, Occupational Therapist, completed an Initial Needs Assessment at the plaintiff’s unit on 2 December 2020. Her recommendations were a cleaning service on a fortnightly basis for a period of 12 weeks; a mowing service - 4 times over a period of 12 weeks and transport assistance via taxi vouchers for specific appointments. Again, the plaintiff’s evidence in this court is inconsistent with the self-report provided to Ms Evans. For example, in this court the plaintiff stated that he used to cook for himself including stews whereas to Ms Evans he “initially stated that he cannot cook.” He told Ms Evans that, at the time of assessment, his partner was completing the shopping and he was able to load and unload the washing machine but had some difficulty hanging it out. The plaintiff submits that I should disregard the report and evidence of Ms Evans as he did not say some of the things that are reported and she is in collusion with Ms White. I do not accept the plaintiff’s submission. I accept the opinions expressed by Ms Evans noting that they are limited to an Initial Needs Assessment. There was evidence that the second defendant paid for what was recommended as part of its rehabilitation commitment under s 51 of the Motor Accident Insurance Act.^[37] I note that the plaintiff gave evidence that he did not receive the assistance with the cleaning and mowing despite it having been paid for by the insurer. He indicated that a person turned up and stated that they were not going to mow the lawn as the grass was too high and, in relation to cleaning, someone came over once and never turned back up again.^[38]
44. [44]
    Ms White assessed the plaintiff for the purpose of a Functional Capacity Evaluation on 12 September 2023. In my view, Ms White undertook a comprehensive consideration of the GP records, Gold Coast Hospital Records and other reports tendered in evidence (I have ignored any summary of documents not tendered in evidence). The plaintiff contends that I should disregard the report and evidence of Ms White as she is in collusion with Ms Evans, she did not attend his home and he does not agree with some of the self-report noted by Ms White. I do not accept the plaintiff’s submission. It is clear that Ms White was doing no more than summarising the report of Ms Evans as she did with many of the other records and reports. Ms White is an occupational therapist with 40 years of experience. I accept her opinion that “based on the records reviewed and [the plaintiff’s] self-report, [the plaintiff] has not received the required six months of six hours per week gratuitous care. In fact, [the plaintiff] has received funding support for tasks that he was ordinarily not responsible for prior to the subject accident, such as cleaning and mowing the lawn.”
45. [45]
    I prefer the evidence of the expert witnesses to that of the plaintiff and Mr McGowan. I am not satisfied that the need for the services arises solely out of the injury in relation to which damages are awarded and that the services were provided for at least six hours per week and for at least six months. I recognise that the six month period in which the six hours per week threshold is met need not be continuous.  Gratuitous services of a type not provided prior to the injury must on their own satisfy the threshold.

Future care and assistance

46. [46]
    The plaintiff claims for an ongoing need for care and assistance in the sum of $147,545.00 as follows:

    1. Ongoing requirement for assistance for not less than 4 hours per week at the commercial rate of $51.09 per hour for a further 25 years on the 5% tables (muiltiplier 754) and discounted by 25% for contingencies totalling $115,500.00.
    2. The cost of lawnmowing and cleaning averaged at $50 per week for a further 25 years on the 5% tables and discounted by 25% for contingencies totalling $32,045.00
47. [47]
    I am not satisfied on the state of the evidence that the claim is substantiated. The plaintiff’s evidence as to current care and assistance was that “[Mr McGowan] is doing [the chores] now”^[39] but he then said he was “gonna be needing care in the near future…”.^[40]
48. [48]
    I refer again to the plaintiff’s pre-existing medical conditions. Dr Halliday opines that no further assistance will be required as a result of the accident. Ms White opines that any assistance for future domestic services relates in isolation to the plaintiff’s multiple co-morbid medical conditions. Ms White was asked the following in cross-examination by the plaintiff:

Plaintiff: “Sorry.  Why – I’ve got to get – I’ve been having – falling over and my leg’s been giving way.  My knee – I’ve got to have a knee brace and an ankle brace on my leg every day of the week.  So I’m going to need future care because I’m going to end up in a wheelchair, so how could you say that I don’t need future care?‑‑‑

Ms White: Um, I’m not saying you don’t need future care, Mr Ford.  But what I’m saying in my report is you have significant other health issues that in my opinion, in isolation to those – your normal or your other health issues, would have ordinarily seen you needing help as you did prior to the subject accident.

Plaintiff: I’ve got to – yes?‑‑‑

Ms White: And just be guided by the medical profession in relation to whether your knee issues giving way and your bilateral numbness and muscle weakness in both legs relates to the subject accident or whether they relate to other medical issues that you’ve had longstanding.

Plaintiff: Yes.  But I didn’t have anything – or back longstanding injury.  I had a minor injury with a pinched nerve in my back?‑‑‑

Ms White: The – your medical records prior to the subject accident would suggest that your back condition was significant.  It was deemed by your general practitioner to say that it was a permanent condition that would stop you from engaging in employment.  You also reported to me that your injuries – your conditions prior to the subject accident significantly limited your ability to do tasks around the home.  You reported that to me, you also reported that to the doctors and the staff at the hospital when you admitted following the subject accident”.^[41]

49. [49]
    I prefer the evidence of the experts to that of the plaintiff and Mr McGowan and I am not satisfied that the legislative test is met.

Other matters

50. [50]
    As the plaintiff is self-represented I have gone on to consider, given the nature of the injuries and the award of general damages, whether any other damages should be awarded. The Statement of claim was filed when the plaintiff was legally represented. No claim was made for past or future economic loss. To my mind this is for good reason. The plaintiff did state in evidence that he “can’t work anymore”^[42] and he was “doing part-time cash in hand work prior to the accident”^[43] however, he then stated he had to put his property and maintenance business on hold as he was looking after his terminally ill mother and then his step-father passed away.^[44] That was years prior to the accident.  The plaintiff stated that he was on a Newstart allowance before the accident and then went onto a disability pension following the accident.^[45] The plaintiff is 62 years of age and the medical records paint the picture of a person who had not worked for many years prior to the accident due to his pre-existing health issues. The plaintiff said, when asked about the claim form he had signed following the accident, that he should have ticked “No” for “loss of wage” as he is not “claiming for lost wages” and that his lawyers completed the income section- he hadn’t been working; he had a Doctor’s certificate to say that he wasn’t working.^[46] There is no evidence to substantiate a claim for past or future economic loss.

Assessment for damages

51. [51]
    I assess damages in the sum of $32,807.96 made up as follows:

    1. General damages- $28,700.00
    2. Special damages - $4107.96
52. [52]
    I enter judgment for that amount.
53. [53]
    I will hear from the parties on costs.