Norman v Hird[2025] QDC 44

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In August 2020, the plaintiff and the first defendant were involved in a motor vehicle accident. The plaintiff claims she sustained injuries to her neck and lower back. In October 2022, she 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’).
2. [2]
   A few weeks ago the trial was heard over two days.  The plaintiff and three other lay witnesses gave evidence.  Expert evidence was given by two orthopaedic surgeons, namely Drs Labrom and Sharwood.   Detailed written submissions have been provided by the parties.  They were supplemented with oral submissions.
3. [3]
   It is the plaintiff’s case that she continues to experience symptoms from the soft-tissue injuries to her cervical and lumbar spines that she sustained in the accident.  Damages are claimed in the sum of approximately $180,000.
4. [4]
   On the other hand the defendants contend that the damages award should be limited to $7,700.  In the further amended defence, it is pleaded that:

1. While the plaintiff suffered a cervical spine injury in the accident, it was minor only.

2. She did not suffer a lumbar spine injury in the accident.

3. Prior to the accident, the plaintiff had been suffering from unrelated health issues, namely psychological symptoms, urinary tract infections and lower abdominal back pains.  These had caused her to experience pain and disability, restrictions in her employment and an ongoing need for medical treatment.

4. The plaintiff:

1. ceased her employment as a truck driver due to pain associated with a gynaecological condition, and not because of any injury suffered in the accident.

2. retains an earning capacity commensurate with her pre-accident capacity and can exercise it without restriction until retirement age.  

Plaintiff’s credibility 

5. [5]
   The plaintiff bears the onus of proof to satisfy the court on the balance of probabilities that her claim should be accepted.  Her credibility has been called into question.
6. [6]
   It is my view that some of the plaintiff’s social media posts reveal that she has somewhat exaggerated to the medical experts the extent and constancy of her ongoing symptoms, particularly to her neck.  On each of the four occasions she was seen by the orthopaedic surgeons, she sought to paint a picture that she was in constant pain. In so far as it related to her neck, she rated it as between 5-6.5/10 and said it was limiting her daily activities, including her social life.  However, the way she presents in her social media posts at music festivals and on other outings^[1] would suggest that the impacts have not been as significant as this.  To some extent, this is corroborated by the relatively infrequent attendances upon health professionals for treatment of her neck related symptoms, particularly in more recent years.      
7. [7]
   Further, I do not accept the plaintiff’s evidence about the circumstances in which her employment as a truck driver with Wilco Logistics Pty Ltd came to an end in October 2022.  This is because her evidence about this was in parts internally inconsistent and in parts implausible.  
8. [8]
   As to an internal inconsistency, in evidence-in-chief the plaintiff said that she requested a general practitioner at the Redlynch Medical Centre to provide a form certifying her fit for work and this request was refused because the doctor told her that she was not fit for work as a truck driver.   Then in cross-examination, it was the plaintiff’s evidence that she did not have the opportunity to ask for this medical certificate, because she was “fired” from the job while waiting to see the general practitioner.^[2]
9. [9]
   In relation to an implausibility in the plaintiff’s evidence, the plaintiff sought to have the Court believe that she received a telephone call from her manager, while she was in the waiting room at the Redlynch Medical Centre on the morning of 28 October 2022.   It was her evidence that her manager “sacked” her from her truck driving job during this call. This seems most unlikely to me.  This is because he would have known that at around this time the plaintiff would have been about to see a doctor to get a form certifying her fitness for work, which form he had requested her to obtain only a few days earlier.  Further, the relationship between the plaintiff and her manager had been a positive one, in which he had been very helpful to her, including accommodating her requests for time off work.
10. [10]
    While the abovementioned matters have caused me to exercise some caution in relation to the plaintiff’s evidence, it does not mean that I do not accept any of what she has said.  To the contrary, there is much of her evidence that I do accept.   For this reason, where necessary, I have indicated below the extent to which I have accepted or rejected her evidence.

The accident

11. [11]
    It is agreed between the parties that on the afternoon of 16 August 2020, the plaintiff was driving a Mazda 3 in a northerly direction along Beerburrum Road towards the intersection with Beerburrum Woodford Road at Beerburrum (‘the intersection’).  The first defendant was driving a Tiguan in an easterly direction along Beerburrum Woodford Road towards the intersection.   The first defendant proceeded through the intersection to make a right hand turn across the plaintiff’s path of travel and the vehicles collided.  The damage to the Mazda 3 is shown in exhibit 5.
12. [12]
    When the plaintiff attended the Caboolture Hospital Emergency Department in the hours after the accident, she reported that she had been driving at 80 kilometres per hour but had slowed down to less than 60 kilometres per hour and that she had seen the Tiguan before the collision.  She also said that she had been wearing her seatbelt, but the airbags did not deploy and she had hit her head on the steering wheel.  There were three passengers in her car.

Unrelated health issues

13. [13]
    The records from the Beachmere Health Centre and the Redlynch Medical Centre are exhibits 1 and 2 respectively (‘the medical records’).  They show that prior to the accident the plaintiff was regularly seeking treatment for gynaecological issues and intermittently seeking treatment for mental health related symptoms.
14. [14]
    As to the gynaecological related issues, these continued to interfere with the plaintiff’s daily activities after the accident.  On some occasions these issues have been associated with lower back pain.  The medical records show that the plaintiff reported:

1. On 24 March 2021, that she was experiencing pain even when she was not having her period.

2. On 1 September 2021, that she was experiencing pain all the time and that medication was not helping. She was certified unfit to work for two days.

3. On 9 December 2021, that she had observed blood in her urine over the previous five days.  She also had lower abdominal and back pain.

4. On 5 May 2022, that her gynaecological issues had been of sufficient severity in late April 2022, to cause her to attend the Caboolture Hospital and she had been required to take two days off work.

5. On 1 June 2022, that she had been seen by a gynaecologist and said that she felt that her period pain was constant.  She rated the baseline severity of it as 5/10, with it occasionally being more severe.

6. On 13 July 2022, that she had been experiencing ongoing flank pain most days since a urinary tract infection two months earlier.

7. On 5 August 2022, that she had ongoing flank and lower back pain.

8. On 24 October 2022, that she had bilateral groin pain since she had experienced a gross haematuria in January 2022.

9. On 28 October 2022, that she had bleeding and associated back pain.

10. On 2 November 2022, that she had abdominal cramps. She was living in Cairns at the time and on the previous day she had spoken to her mother (in Brisbane) about her symptoms.  Her mother was sufficiently concerned that she arranged for an ambulance to attend upon her, and she was transported to a hospital emergency department because of the severity of the cramps. These were associated with back pain and the plaintiff reported that it felt like she was being stabbed.

11. On 11 November 2022, that she was getting escalating pain and more frequent bleeding that was severely affecting her quality of life.  She also reported that she was getting back pain associated with her menstrual cycle.

12. On 15 May 2024, that she had been getting bilateral flack pain for the previous two days and had been experiencing difficulties emptying her bladder since an episode of haematuria 18 months earlier.

15. [15]
    The plaintiff has continued to intermittently experience psychological symptoms since the accident.  For example, the medical records show that she reported:

1. On 24 January 2022, that she was anxious and self-medicating with marijuana.

2. On 31 March 2022, that she felt like her anxiety was escalating and she had taken time off work as she was not coping.

3. On 8 May 2022, that she was continuing to wake with anxiety.

4. On 27 May 2022, that she was reporting ongoing mental health symptoms and the general practitioner considered that these warranted the plaintiff being provided with a mental health plan and treatment by a psychologist.  

5. On 5 July 2022, that she had ongoing anxiety. 

6. On 7 March 2023, that she had anxiety and the general practitioner considered that another referral to the psychologist was warranted.  

7. On 29 August 2024, that she had anxiety and insomnia. The general practitioner thought she also had a Post Traumatic Stress Disorder and commenced prescribing medicinal cannabis. 

8. On 29 August 2024, that she had anxiety which she rated as 9/10 and insomnia which she rated as 6/10 and she was prescribed further medicinal cannabis. 

Neck and lower back symptoms

16. [16]
    It is the plaintiff’s case that she suffered injuries to her neck and lower back in the accident.
17. [17]
    There is no suggestion that the plaintiff had any symptoms related to her neck prior to the accident.  It is not disputed that she experienced neck related symptoms within a short time of the accident.  The medical records show that the plaintiff has sought treatment for these symptoms on the following occasions:

1. On 16 August 2020 (being the day of the accident), the plaintiff attended at the Caboolture Hospital Emergency Department.  She reported some pain in her left neck area and shoulder.  She was diagnosed with a whiplash injury to her neck.  

2. On the following day, the plaintiff re-attended the Emergency Department.  She reported that after she had woken up that morning, she had experienced vomiting and light headedness for approximately three hours.  She also complained of severe left sided neck pain and numbness to her left arm.  On examination, her cervical spine was tender on the left side and she was unable to turn her head to the left.   A CT scan of her cervical spine was normal.  She was diagnosed with post-concussion syndrome and was referred for physiotherapy treatment in the outpatient setting.

3. On 7 October 2020, the plaintiff attended the Beachmere Health Centre.  She reported ongoing neck and upper trapezius pain.   On examination, she had mild limitation of range in lateral rotation to the right, and moderate tenderness to palpation to her upper trapezius to the left.   The general practitioner considered that she had a neck and an upper trapezius strain.  She was referred for physiotherapy treatment.  She was also provided with a medical certificate that indicated that the treatment likely to be required would be for a period of six to twelve weeks.^[3]

4. On 9 December 2020, the plaintiff was referred to Doveston Health for physiotherapy treatment for her ongoing neck pain. 

5. On 8 Febraury 2021, the plaintiff underwent an MRI of her cervical spine, the results of which were unremarkable.  

6. On 7 March 2022, the plaintiff was noted to require further physiotherapy for ongoing neck pain. 

7. On 6 May 2022, the plaintiff reported ongoing pain in her neck and right shoulder that she dated back to the accident. The pain was said to be worse with any overhead movements.  An x-ray of her cervical spine did not show any abnormality. 

8. On 25 May 2022, the plaintiff reported ongoing neck and shoulder pain.

9. On 14 September 2023, the plaintiff reported to a physiotherapist that she had ongoing neck and shoulder symptoms.

10. On 2 February 2024, the plaintiff reported to a physiotherapist that she had neck and shoulder pain which had been ongoing since the accident.  On examination, her neck range of motion provoked pain in the upper trapezius, especially with movements towards the left.  She also had difficulty abducting her shoulders.

18. [18]
    In relation to the plaintiff’s lower back, the position is more complex.  While the defendants accept that she has reported and sought treatment for lower back symptoms, they dispute that these symptoms are causally related to the accident.   As explained in paragraph 14 above, one of the symptoms that has been associated with the plaintiff’s gynaecological issues has been lower back pain.^[4]  The medical records show that the only other occasions the plaintiff has reported back pain is limited to the following:

1. On 7 March 2022, the plaintiff was noted to require further physiotherapy for ongoing back pain. 

2. On 6 May 2022, the plaintiff reported pain in her lower back, sacro-iliac joints and hips.  She was having trouble with work that involved a lot of bending.

3. On 5 July 2022, the plaintiff sought an updated medical certificate for Centrelink.  While the entry in the Beachmere Health Centre records documents that the reason for the visit was anxiety, the medical certificate completed by the general practitioner includes a reference to back pain.  

4. On 7 March 2022, the plaintiff was referred to a physiotherapist for low back pain.

5. On 15 September 2023, the plaintiff told the physiotherapist that she had intermittent achiness across her lower back and sacro-iliac joints.  It was coming on with prolonged postures of sitting or standing and was worse by the end of the day.

Quantum

19. [19]
    The plaintiff was born on 10 October 2002.  She was 17 years of age at the time of the subject incident.  She is now 22 years of age.  She has lived in the Caboolture area with her family, apart from a couple of months in mid to late 2022, when she lived with the Roberts family in Cairns.   She is approximately 165 centimetres tall and since the accident she has weighed approximately 47 kilograms.
20. [20]
    The plaintiff’s solicitors arranged for her to be examined by Dr Robert Labrom, spinal surgeon.  He saw her on 8 December 2021 and has provided a report dated 10 December 2021.^[5]  
21. [21]
    As to her neck symptoms, the plaintiff reported she had chronic pain in her posterior neck and upper shoulder region.  She rated her pain at 6.5/10 on a visual analogue scale  (where 10/10 is the worst pain imaginable).   In relation to the plaintiff’s lower back, she complained of a generalised low back ache.
22. [22]
    The plaintiff told Dr Labrom that her symptoms at the time of examination were fairly severe and were limiting her daily.  She said that she was unable to walk, stand or sit for more than one hour.  She was finding it difficult to lift any heavy objects. Her social life had become restricted in that she was going out less often. She told Dr Labrom that ongoing treatment had included regular analgesics and non-steroidal anti-inflammatories.  
23. [23]
    The results of Dr Labrom’s examination of the plaintiff’s cervical spine included forward flexion to 30 degrees.  She could extend her cervical spine to 25 degrees. She could turn her neck to the right side to 30 degrees and to the left side to 35 degrees.  The muscular assessment revealed guarding upon palpation of her posterior spinal musculature, with significant tightening of her levator scapulae muscle groups.  No muscle spasming was noted. Her upper limb examination was normal. 
24. [24]
    As to the plaintiff’s lumbar spine, the examination was essentially normal.  Her range of motion assessment was normal, and she had no fixed muscle guarding, spasming and no neurological change to the lower extremities.  
25. [25]
    Dr Labrom considered the plaintiff has sustained a soft-tissue injury to her cervical spine  He assessed her whole person impairments by reference to Chapter 15 of the American Medical Association Guide to the Evaluation of Permanent Impairment 5^th Edition (‘the AMA Guide’).  This 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.  He assessed a seven percent whole person impairment using the DRE-II category in Table 15-5 of the AMA Guide.  This is said to reflect Dr Labrom’s examination findings of muscle guarding and asymmetrical loss of range of motion.  The DRE-II category includes a range of five percent to eight percent to account for the continuation of symptoms and their impact on the plaintiff’s ability to perform activities of daily living.  
26. [26]
    As to the plaintiff’s lumbar spine, even though she complained of a generalised low back ache, Dr Labrom assessed a zero percent impairment by reference to the DRE-I category in Table 15-5 of the AMA Guide. This was on the basis that his examination of her lumbar spine did not reveal any significant clinical findings.   
27. [27]
    The second defendant arranged for the plaintiff to be examined by Dr Peter Sharwood, orthopaedic surgeon on 28 April 2022 and he has provided a report dated 12 May 2022.^[6] As to her neck, the plaintiff reported that she had constant pain which she rated as 5/10. It was made worse by driving or prolonged standing. It would wake her at night. She described some symptoms radiating into both arms and described generalised numbness in glove distribution from the axilla to the fingers and paraesthesia, neither of which followed any recognisable anatomical pattern. 
28. [28]
    As to the examination of the plaintiff’s cervical spine, it revealed she had 60 degrees of flexion, 60 degrees of extension, 40 degrees of lateral flexion and 90 degrees of lateral rotation. There was no evidence of muscle spasm or muscle wasting, although she would vocalise and grimace with some movements.   Examination of her shoulders, elbows, wrists and hands were normal.
29. [29]
    As to her lower back, the plaintiff rated her pain as 7/10.  It was not radiating into her lower limbs.  She said her walking distance was restricted. Dr Sharwood’s examination of the plaintiff’s lower back revealed she had 90 degrees of flexion, 20 degrees of extension, 45 degrees of lateral flexion and lateral rotation symmetrical on both sides. She had a mild dorsal kyphosis.  Examination of her lower limbs was normal.
30. [30]
    Dr Sharwood agreed with Dr Labrom that the plaintiff has suffered a soft tissue injury to her cervical spine, although he disagreed with the whole person impairment, which he assessed at zero percent, by reference to Table 15-5 of the AMA Guide.  This is because his examination revealed no significant clinical findings, and no evidence of any alteration in the range of motion, root damage, sensory loss, or muscle strength.  He agreed with Dr Labrom’s assessment of a zero percent impairment of her lumbar spine.  
31. [31]
    Dr Labrom re-examined the plaintiff on 29 November 2023 and provided a further report dated 1 December 2023.^[7]  The plaintiff reported ongoing neck pain.  His examination of her neck was essentially unchanged from his earlier assessment, although on this occasion she had muscle spasming, as well as guarding. 
32. [32]
    At the time of this second assessment by Dr Labrom, the plaintiff reported a more substantial and constant level of lower back pain, when compared to the initial assessment some two years earlier.   His examination of her lower back revealed more significant findings when compared to his initial examination. In particular, her forward flexion was restricted, such that outstretched fingertips would only just reach her mid-shins and she had muscular guarding with palpation. 
33. [33]
    Dr Labrom’s whole person impairment assessment of the cervical spine remained unchanged at seven percent.  He thought that the difference in his and Dr Sharwood’s examination findings was potentially explicable by the variation in the plaintiff’s presentation at the times of their respective examinations.   As to her lumbar spine, Dr Labrom assessed a six percent whole person impairment.  He considered that while the plaintiff’s overall physical deconditioning had contributed to her incapacity, it was consequential upon the injuries sustained in the accident.    
34. [34]
    The defendants’ solicitors arranged for Dr Sharwood to re-examine the plaintiff on 15 February 2024 and he provided a further report dated 21 February 2024.^[8]  The plaintiff described tightness and burning in the back or her neck and into her interscapular area, requiring rest and medication. She said her pain was constant and rated it at 6-8/10.  She was getting some symptoms in the top of her arms, but denied any symptoms radiating from her neck and into her forearms or fingers.  She was experiencing some symptoms radiating into the back of her occipital region. Her pain was made worse by overhead work. The plaintiff described her lower back pain as intermittent and said that it would occasionally be present when she woke up.  She rated it as 7/10.  Dr Sharwood’s examination findings and whole person impairment assessments from his initial assessment 21 months earlier, remained unchanged.  
35. [35]
    In evidence, the plaintiff said that she had ongoing symptoms in her neck and shoulder.  She went on to explain that these symptoms would be aggravated if she worked all day and if she was on her feet for extended periods.  She also complained of ongoing pain in her lower back.
36. [36]
    In the statement of claim, the plaintiff claims $22,010 for general damages on account of injuries to her cervical and lumbar spines.   This equates to an ISV of 12 in accordance with the Regulation.
37. [37]
    I am persuaded that the plaintiff’s neck related symptoms are explicable by a soft-tissue injury sustained in the accident.   She first reported them within hours of the accident, and they are consistent with the mechanism of injury.  
38. [38]
    While the plaintiff is continuing to experience these neck related symptoms, I am satisfied that they have improved over time, in that they are no longer constantly present.   They have been largely managed with analgesics and anti-inflammatories.  The plaintiff has seldom received treatment for them from health professionals in recent times.   The medical records show that while she reported ongoing neck pain at an attendance upon a physiotherapist on 2 February 2024, her most recent attendance upon a health practitioner for neck related symptoms prior to this was some 21 months earlier. 
39. [39]
    I accept Dr Labrom’s opinion that the intermittent nature of the plaintiff’s neck related pain explains the difference in his and Dr Sharwood’s examination findings at the times of their respective examinations.  The plaintiff’s social media posts support the intermittent ongoing nature of the plaintiff’s symptoms. So do the medical records, in that there are numerous occasions where the plaintiff attended upon health practitioners with no documented reference to neck related symptoms.   While I am cognisant that medical records can have their limitations in the context of litigation, I do not accept that a presenting problem such as ongoing neck symptoms (dating back to the accident) would not have been recorded. 
40. [40]
    Turning to the plaintiff’s intermittent lower back symptoms, while the evidence suggests that they are possibly related to a soft-tissue ligamentous injury sustained in the accident, this is not enough. There is the competing hypothesis that these symptoms can be explained for reasons unrelated to the accident. For the plaintiff to succeed, she must demonstrate that the hypothesis consistent with a lower back injury having been caused by the accident is the more probable one.  I am not satisfied that she has discharged her onus in this regard, for the reasons detailed below. 
41. [41]
    First, there is an absence of a temporal connection between the accident and the plaintiff’s initial complaint of lower back symptoms. The first documented reference to such symptoms is in a referral letter from the Beachmere Medical Centre on 9 December 2020.  This was nearly four months after the accident.   While Dr Labrom explained that lower back symptoms emerging months after an accident can still be caused by it, he accepted that this passage of time makes it less likely.
42. [42]
    Second, as can be seen from paragraph 14 above, low back pain has been a feature of the plaintiff’s constellation of symptoms when seeking treatment for gynaecological issues.^[9]  
43. [43]
    Third, while it is accepted that there are some references in the medical records to back pain with no apparent connection to the plaintiff’s gynaecological issues, these have potential explanations that are unrelated to the accident.  One such explanation is the plaintiff having sub-optimal physical conditioning.  Dr Labrom opined that this lack of physical conditioning may well be explained by the adverse impacts of the accident-related injuries on the plaintiff.  However, as explained by Dr Sharwood, another equally probable explanation is her physical weakness in the context of her very slight build.  This was the opinion of the physiotherapist who treated the plaintiff on 15 September 2023.  Another explanation is a bulging disc at the L4/5 segments of her spine, a diagnosis which the plaintiff reported to her work manager in October 2022.  
44. [44]
    As to the award for general damages, it is intended to compensate the plaintiff for pain and suffering and loss of amenities of life.^[10]  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. 
45. [45]
    The plaintiff claims that her ongoing neck related symptoms fall within Item 88 of the Regulation.  This item is for a moderate soft-tissue injury to the cervical spine, for which there is objective evidence.  It has an ISV range of 5 to 10.  It is my view that the plaintiff’s soft-tissue injury comes within Item 89, being for a minor cervical spine injury.  It has an ISV range of 0 to 4.  It provides that an ISV at or near the top of the range will be appropriate if the injury, despite improvement, causes headaches and some ongoing pain.
46. [46]
    In all the circumstances, I consider an ISV of 4 properly reflects the likely ongoing permanent impairment consequential upon the neck related injury caused by the accident.  This equates to a figure of $6,480. 
47. [47]
    Pursuant to s 60(1)(a) of the Act, there is no interest on this figure.     

Special damages

48. [48]
    It is agreed that the refund to Medicare is $932.65.
49. [49]
    As to out-of-pocket expenses, the plaintiff claims:

1. $2,350 for Paracetamol and Valium;

2. $500 for medicinal cannabis; and

3. $500 for travel.

50. [50]
    While I accept that the plaintiff has been intermittently taking analgesic and anti-inflammatory medication, this have been to treat not only her neck related symptoms, but also her unrelated medical conditions.  I have allowed a global sum of $500 for pain relief medication. 
51. [51]
    I make no allowance for medicinal cannabis.  The medical records indicate that it has been prescribed for reasons unrelated to the accident.  
52. [52]
    Some small global allowance ought to be given for travel.  I assess this at $200.
53. [53]
    Therefore, I have allowed $700 for out-of-pocket expenses.  The total allowance for past special damages is $1,633.

Interest on out-of-pocket expenses

54. [54]
    Interest on $700 at the agreed rate of 2.33% for a period of 4.58 years is about $75.

Past economic loss

55. [55]
    The plaintiff left school after year 11.  She commenced working in a Turkish cafe in the Morayfield Shopping Centre while at school and remained there for approximately three years. 
56. [56]
    When Dr Labrom assessed the plaintiff on 8 December 2021, she told him that at the time of the accident she was working part-time.  However, this was not correct.  While she had secured a casual job as a retail assistant at Ghanda Clothing, she had not commenced working there.  Her first shift was to be three days after the accident, but this was delayed for approximately two to three weeks on account of the accident.   She left this employment in February 2022, as she was not enjoying the work.
57. [57]
    Approximately one month later, the plaintiff commenced working at Modern Teaching Aids Pty Ltd at Brendale. She was packing orders of teaching resources and supplies.  She only stayed there for about one month. 
58. [58]
    The plaintiff relocated to Cairns in the middle of 2022 and was living with the Roberts family.^[11]  She obtained a white card for the construction industry and certificates to operate articulated haul trucks, bulk water trucks and rigid haul trucks.  She commenced working for Wilco Logistics Pty Ltd on 22 September 2022.
59. [59]
    While working for Wilco Logistics Pty Ltd, the plaintiff was driving an articulated haul truck at the Boral Quarry in Redlynch.  She worked weekdays between 6am and 5pm.  She spent most of each shift driving a truck that would be used to receive and transport heavy loads of large rock.  She gave evidence that she would “be thrown around in the truck quite a bit” and would be in a “fair bit of pain most of the day.”^[12]
60. [60]
    For the first two weeks of this job, the plaintiff was able to work full-time hours.  She then started taking one to two days off work per week as she was in pain. Mrs Roberts gave evidence that when the plaintiff would come home from work, she would observe her holding her neck and there were occasions where she would retrieve a heat pack for the plaintiff or massage her neck.  There would be other occasions where the plaintiff would go and lie down in her room. 
61. [61]
    The payslips from Wilco Logistics Pty Ltd show that the plaintiff only worked there for approximately one month, finishing on 26 October 2022.  In evidence, the plaintiff said that she really enjoyed this work and would like to have continued doing it.
62. [62]
    The plaintiff did not work between late October 2022 and when she commenced employment as a sales assistant with Platypus Shoes at the Morayfield Shopping Centre on 10 May 2023.   She has remained working there.  She initially worked 10 to 15 hours per week over two to three days, but was desirous of being promoted.  Her duties encompassed serving customers, retrieving boxes of various weights and sizes.  She would on occasions be required to climb a ladder to get boxes which were stacked on higher shelves.
63. [63]
    In late 2024, the plaintiff was promoted to a senior casual role.  This was associated with an increase in her hours, as part of her duties involved opening and closing the store. Within a short time, she was promoted to be the assistant manager of the store and her employment became permanent.  She was working each week from Sunday to Thursday between 8.45am and 5.45pm.  She continued performing her previous duties but would also attend meetings.   She relinquished this position in mid-February this year.  She said that her reason for this is that her neck and back pain were aggravated by climbing ladders and being on her feet for extended periods.  Towards the end of her shift she would need to take pain killers and call on her work colleagues to assist with her duties, particularly those involving the use of the ladder.
64. [64]
    Since mid-February this year, the plaintiff has been working 15-20 hours per week for Platypus Shoes. She said that while she is content to work these hours, she would like to work full-time but cannot because of her neck and back pain.
65. [65]
    Jakson Johnson and Shakaia Alexander gave evidence.  They have both worked with the plaintiff at Platypus Shoes.   Ms Alexander has been the store manager since December last year and Mr Johnson was the assistant store manager, prior to the plaintiff taking up this role a couple of months ago.  Ms Johnson explained that on occasions she would take a longer break or leave work early.  Ms Alexander gave evidence that she observed the plaintiff have difficulties retrieving boxes involving the use of the ladder.  Mr Johnson explained in cross-examination that some of the boxes the plaintiff would need to retrieve would weigh in the order of 20 kilograms.  He accepted that the plaintiff’s slight build meant that she could not lift such weights, irrespective of the injuries to her neck.  
66. [66]
    The parties agree that the plaintiff earned a net weekly income of $79 in the 2018 financial year, $126 in the 2019 financial year, $233 in the 2020 financial year, $79 in the 2021 financial year, $227 in the 2022 financial year, $135 in the 2023 financial year, $577 in the 2024 financial year and $720 in the first 35 weeks of the current financial year. 
67. [67]
    In the amended statement of claim, the plaintiff claimed approximately $123,000 for past economic loss, on the following basis:

1. A global sum of $25,000 between the accident and the commencement of her employment with Wilco Logistics Pty Ltd on 22 September 2022;

2. A net weekly loss of $1,350 for 29 weeks, between ceasing employment with Wilco Logistics Pty Ltd on 20 October 2022 and commencing employment with Platypus Shoes on 10 May 2023; and

3. An ongoing loss of $600 per week representing the difference in her income between Wilco Logistics Pty Ltd and Platypus Shoes. 

68. [68]
    This claim was reduced to $50,000 in the plaintiff’s written submissions. The defendants’ contend that no allowance should be made for economic loss.  
69. [69]
    The assessment of damages for economic loss for a plaintiff who was injured so young, presents significant challenges.   There are various paths her life could have taken and the impact of the neck related injury is difficult to assess.  
70. [70]
    There is no dispute that on account of the accident, the commencement of the plaintiff’s employment with Ghanda Clothing was delayed by approximately three weeks. The parties agreed that for the 2021 financial year, the plaintiff earned an average net weekly income of $79.  Allowing this average for three weeks equates to a loss of approximately $240.  
71. [71]
    I am not convinced that the plaintiff’s causal employment with Ghanda Clothing was otherwise significantly impacted by her neck related symptoms.  It seems that in the first 30 or so weeks of the 2022 financial year she was able to increase her hours resulting in an average net weekly income of approximately $200 per week.   Further, while the medical records show that some of her attendances upon the doctors were for her ongoing neck pain, several other entries related to her gynaecological issues.  For example, on 1 September 2021, the plaintiff reported that she had intermenstrual pain most of the time.   Further, shortly prior to her ceasing this employment in February 2022, the plaintiff attended the Beachmere Health Centre for anxiety and said that she was smoking a significant amount of marijuana to try and manage it. In addition, as the plaintiff explained in cross-examination, the reason she left this employment was because she did not want to continue working there.^[13]   
72. [72]
    As to her employment with Modern Teaching Aids Pty Ltd, the plaintiff told Dr Sharwood that she was needing to take time off because of ongoing neck and back symptoms.  However, the Beachmere Health Centre records show that she was taking time off this work for escalating anxiety, for which she was given a medical certificate for five days.  
73. [73]
    It was shortly after leaving her job with Modern Teaching Aids Pty Ltd that the plaintiff moved to Cairns and secured the job as a truck driver.  She earned an average net weekly income of approximately $1,000 per week over the five week period that she worked there.  While the plaintiff did not seek treatment for neck related symptoms while residing in Cairns, I am satisfied that she did have these symptoms (which she managed with pain relief medication) and that they were sufficiently problematic to prevent her from continuing with this work.  As Dr Labrom explained, driving a truck on uneven and unsealed ground would have constantly jarred her neck.  
74. [74]
    The plaintiff was off work between 26 October 2022 and when she commenced employment with Platypus Shoes on 10 May 2023.   Allowing a loss of $1,000 per week over this period, equates to a loss of approximately $28,000.   While discounts are not necessarily applied to allowances for past economic loss, I consider a significant discount is warranted here.   This is for contingencies, including the impact of unrelated health conditions on her capacity to work as a truck driver.
75. [75]
    Two such conditions were her lower back pain and her gynaecological issues. There are text exchanges between the plaintiff and her manager commencing on the morning of 24 October 2022, when the plaintiff informed her manager that she had been up and down all night with back pain and that she might need to leave work that day to attend upon a doctor.  Approximately two hours later, she sent a further text to him telling him that she had managed to get a doctor’s appointment at 3pm.  After the end of her shift, the manager sent a text to the plaintiff to see how she was going.  She responded telling him that the doctor didn’t really have many answers for her but thought she may have had a kidney infection.  The plaintiff also told her manager that the doctor had told her that she had bulging discs in her L4/5 segments of her spine that may have explained some of her pain.
76. [76]
    The records from the Redlynch Medical Centre in relation to the plaintiff’s attendance on 24 October 2024, show that the reason for her attendance was bilateral groin pain associated with her gynaecological issues. The note records that the plaintiff had told the doctor that she had previously had symptoms so severe that she had passed out during menstruation. I accept the plaintiff’s evidence that this referred to a single occasion some years earlier and was provided as part of the history of her gynaecological problems. The record also states that the pain she was experiencing was not just during her period, but was starting to be present all the time and felt like “barbed wire churning around inside of her”.  The doctor noted in the records that this pain was associated with bilateral loin and lower back pain.  The doctor made a provisional diagnosis of endometriosis and referred the plaintiff for radiological imaging of her abdomen.  A referral was also made to a gynaecologist.
77. [77]
    It seems that the plaintiff attended work on the following day.  However, that evening she sent another text to her manager. She asked him if she could have the following day off work to rest her back and that her pain was worsening.  She said that it was starting to shoot up her neck and supress her breathing. Her manager approved this request. The following morning, being 26 October 2022, he sent her a further text telling the plaintiff that he had been told that she was going to need to obtain a form from a doctor certifying her fit for work. She responded to the effect that she would do this and had a doctor’s appointment at 10am on Friday, 28 October 2022.
78. [78]
    The Redlynch Medical Centre records show that the plaintiff attended this scheduled appointment and was again seen for gynaecological related issues.  Then four days later, she was transported by ambulance to the Cairns Base Hospital because of the severity of her abdominal cramps.   She ended up having gynaecological surgery in February 2023.
79. [79]
    There are further matters justifying the application of a discount.  The plaintiff had previously experienced mental health challenges, which had on occasions been severe enough to result in her being medically certified as unfit for work.   There is also the prospect that she was not going to remain working as a truck driver because of her slight build making her physically unsuited to it. 
80. [80]
    For the above reasons, I discount the figure of $30,000 by 40 percent to $16,800 for this period.  
81. [81]
    In May 2023, the plaintiff returned to working casual hours in retail. She seemed to be able to largely manage her neck related symptoms and she progressively increased her hours over time until she was promoted to the permanent assistant manager position in late 2023.  I am satisfied that while she was able to manage her work as a casual employee, that the increased work hours associated with the promotion aggravated her neck related symptoms to the point that she relinquished this position and returned to casual hours on 10 February 2025. 
82. [82]
    It is agreed between the parties, that while the plaintiff was working as the assistant manager, she earned a net weekly income of approximately $881.35.  For the 20 weeks prior to this promotion, her average net weekly income had been $650.32 and in the four weeks after she returned to her casual position, her average net weekly income has been $445.57.  Allowing a net weekly loss of approximately of $436 for six weeks, equates to approximately $2,620. 
83. [83]
    In my view, a further discount from this sum ought to be made.  It should be a smaller discount than then 40 percent that I have allowed between October 2022 and March 2023. The reason for this is that the plaintiff had surgery for her gynaecological issues in February 2023.  Her evidence was that her symptoms referable to these have improved significantly.  Support for this can be found in the medical records that show much fewer attendances for gynaecological issues since the surgery.   I therefore discount the $3,500 by 20 percent and arrive at a figure of $2,100.
84. [84]
    The total award for past economic loss is approximately $19,140.

Interest on past economic loss

85. [85]
    All but $240 of the $19,140 loss relates to the period commencing October 2022.  Interest on this figure from that time, being a period of 2.33 years at a rate of 2.33% is approximately $1,040.

Past loss of superannuation

86. [86]
    The parties agree that the appropriate rate for past loss of superannuation is 9.55%. The allowance for loss of past superannuation is $1,830.

Future economic loss

87. [87]
    Turning to future economic loss, in the amended statement of claim the plaintiff claimed a global sum of $150,000, taking into account:

1. her young age;

2. the general disadvantage she has been placed at on the open labour market, including the prospect of early retirement; and

3. the impact of the injuries on her tolerance to stand for lengthy periods and repetitively bend. 

88. [88]
    This claim was reduced to $80,000 in the plaintiff’s written submissions.
89. [89]
    Determining the effects of the accident on the plaintiff’s future earning capacity involves the art of double prophesying – what would have happened uninjured and what will happen in her injured state.   It is unnecessary for the plaintiff to establish that her injury will be productive of financial loss.  It is sufficient to prove that there is a chance of that loss occurring. 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.^[14]  The discretionary judgment needs to encompass a range of possible outcomes, some of which may be no more than a real possibility.^[15]
90. [90]
    The evidence establishes that the plaintiff’s neck symptoms are stable and stationary. Her principal limitations on account of her neck symptoms is her capacity to perform work that involves prolonged periods on her feet or reaching overhead.  I accept Dr Labrom’s opinion that she could not work as a truck driver because of the constant jarring of her neck when driving trucks on uneven and unsealed ground.  I accept she has a significant residual earning capacity. Dr Labrom considers she has a reasonable prognosis.  In my view, her tolerance for work activities will improve to some extent if she improves her overall physical conditioning.  
91. [91]
    The assessment of damages of a person in their early 20s with a very limited employment history, is necessarily founded on hypothetical evaluations and defies precise calculations. It requires the assessment to be made on a global basis, reflecting the probabilities.  Mere intuition is not sufficient.  Pursuant to s 55 of the Act, I am required to state the factual findings underpinning the award and explain the reasoning behind the award. It is necessary to adopt a transparent and reasoned approach based on the evidence, encompassing a range of possible outcomes, some of which may be no more than a real possibility. ^[16] Possibilities that have a less than one percent chance of coming to be, are to be ignored.^[17] 
92. [92]
    I am persuaded that the plaintiff’s earning capacity has been diminished by reason of the ongoing intermittent neck pain and that such diminution may be productive of economic loss.  While the plaintiff is continuing to work in retail, she is still very young.  At one extreme is the possibility that she will lose her current job in the near future, and despite her residual employment capacity, struggle for years to find more than occasional casual work.  At another extreme is the contingency that she will move into a more sedentary role and will largely be gainfully employed in a full-time capacity until aged 67. These and other more probable contingencies must be considered.
93. [93]
    As explained above, I am satisfied that the plaintiff is precluded from working as a truck driver.  At some point she may have sought to return to this work, given that she has the necessary white card and the certificates to drive at least some of the trucks used in this industry.  However, to the extent that such work involves the mining industry, it is confronted with risks including the fact that the longer-term viability of it is somewhat guarded.  It also tends to involve work outside major metropolitan areas and the plaintiff would need to be prepared to relocate to such an area on a longer-term basis.  Further, if she was required to undergo a pre-employment medical assessment for such work, there is a real prospect that she would be assessed to be unsuitable for this work on account of her slight build.
94. [94]
    There are also the contingencies associated with the plaintiff’s unrelated previous health issues (as discussed above) interrupting her earning capacity.  While the plaintiff’s gynaecological issues seem to have improved with the surgery in February 2023, Dr Labrom considered that her lower back condition had worsened between his two assessments. This deterioration was confirmed by his examination of the plaintiff on 29 November 2023.  Further, the plaintiff didn’t enjoy working in retail and is unlikely to have remained in this industry for the long-term. 
95. [95]
    The law remains somewhat unsettled as to whether the methodology for a global award for more than a modest sum is required, or whether it can be a based on an ‘experienced guess’.^[18] To the extent that it is required, an ongoing loss of $75 per week for the remaining 45 years of the plaintiff’s working life (with a notional retirement age at 67) and applying the 5 percent discount tables, gives a figure of approximately $80,000 (inclusive of superannuation).  Having regard to the necessarily artificial precision of this calculation, I have allowed $70,000 inclusive of superannuation for future economic loss.  This takes into account the nature of the plaintiff’s residual neck related symptoms, her youth, her work history and the fact that she has sustained a four percent whole person impairment.

Future out of pocket expenses

96. [96]
    In the amended statement of claim, the plaintiff claimed $10,000 for future expenses, comprised of the following:

1. $2,500 for pharmaceuticals;

2. $4,800 for attendances on general practitioners and pain management specialists (including pain management procedures estimated at $1,500);

3. $1,200 for attendances on physiotherapists; and

4. $1,500 for future travelling and parking expenses associated with attending on general practitioners and pain specialists.

97. [97]
    This claim was increased in the plaintiff’s written submissions to approximately $11,300. 
98. [98]
    No evidence has been led of the estimated costs of seeing a pain-management specialist and I not persuaded that such specialist treatment is required for the plaintiff’s neck.  I have made no allowance for this.
99. [99]
    Both experts concur that the plaintiff will require ongoing analgesics in the long term.  I have allowed $3,000 for pharmaceuticals, occasional attendances on health practitioners and travel related expenses.  

Summary of damages award

Orders

100. [100]
     There will be judgment for the plaintiff against the defendant for $103,198.
101. [101]
     I direct that any submissions in respect of costs (not to be longer than three pages), or alternatively a proposed draft order if the parties are agreed, be filed within seven days.