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Cabato v Paltridge and Another[2025] QDC 59

Cabato v Paltridge and Another[2025] QDC 59

DISTRICT COURT OF QUEENSLAND

CITATION:

Cabato v Paltridge and Another [2025] QDC 59

PARTIES:

DARWIN CABATO

(Plaintiff)

v

GREGORY STUART PALTRIDGE

(First Defendant)

And

ALLIANZ AUSTRALIA INSURANCE LIMITED

(Second Defendant)

FILE NO:

DC 83 of 2021

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

21 May 2025

DELIVERED AT:

Southport

HEARING DATES:

31 March – 4 April; 28 April 2025 (written submissions dated 17 and 22 April 2025)

JUDGE:

Holliday KC DCJ

ORDER:

  1. Judgment for the plaintiff in the sum of $73,663.91
  2. Unless the parties can agree on costs, submissions on costs from both parties, limited to no more than five pages must be exchanged and filed no later than 4.00pm on 28 May 2025.
  3. Any reply to those submissions, limited to no more than three pages, must be exchanged and filed no later than 4.00pm on 30 May 2025.
  4. Liberty to apply.

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL DAMAGES – where the plaintiff suffered injuries in an accident where he was riding a bicycle and was struck by the first defendant’s vehicle – where liability is agreed with the plaintiff being 25 percent contributory negligent – where damages are assessed under the Civil Liability Act 2003 (Qld) – where there is a dispute as to the injuries caused by the accident – where there is a dispute as to the consequences of the injuries caused by the accident

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – PAST AND FUTURE ECONOMIC LOSS – where the effect on employment is in issue

LEGISLATION:

Civil Liability Act 2003 (Qld) ss 55, 61, 62

Civil Liability Regulation 2014 (Qld) s 9, schedule 4

CASES:

Bell v Mastermyne Pty Ltd [2008] QSC 331

Baldock-Davis v Popham & Anor [2023] QSC 24

Allwood v Wilson and Anor [2011] QSC 180

Foster v Carter and Anor [2017] QSC 135

Goodfellow v Clarke [2015] QDC 193

Cook v Bowen and Anor [2007] QDC 108

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Norman v Hird and Anor [2025] QDC 44

Nichols v Curtis & Anor [2010] QCA 303

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Evans v Williams & Anor [2018] QDC 210

O'Connor v Wright [2021] QDC 173

Hoveydai v Mak & Anor [2021] QSC 16

COUNSEL:

M Lazinski for the plaintiff

R Morton for the defendants

SOLICITORS:

Southern Gold Coast Lawyers for the plaintiff

McInnes Wilson Lawyers for the defendants

Introduction 4

The accident 5

Plaintiff’s credibility 8

Issues 19

Whether the plaintiff suffered injury to the neck and if so, what is the nature and extent of any such injury. 20

Whether the plaintiff suffered an injury to his lumbar spine and if so, what is the nature and extent of any such injury. 54

Whether the plaintiff suffered an injury of a psychiatric nature 61

The nature and extent of the injuries to the left and right knees 64

The nature and extent of the injuries to the head 66

General damages 69

Economic loss 73

Whether the plaintiff has suffered past economic loss. If so, what is the proper

quantification of any such loss 74

Whether the plaintiff has, or will in the future, suffer loss of earning capacity as a result

of the collision. If so, what is the proper quantification of any such loss. 78

Special damages 87

Whether the plaintiff has incurred special damages in the past and as a result of the collision. If so, what is the proper quantification of any such expenses. 87

Future treatment 87

Future care 89

Whether the plaintiff will require paid assistance in the future as a result of any injury suffered in the collision. If so, what is the proper quantification of any such requirement 89

Summary of damages 92

Orders 93

Introduction

  1. [1]
    The plaintiff sues for damages for personal injury arising from an accident which occurred on 29 March 2017 at Palm Beach when the first defendant’s vehicle and plaintiff, riding a bicycle, collided. It was agreed between the parties that the first defendant was negligent and the plaintiff was 25 percent contributory negligent to the circumstances of the collision.  The issues between the parties for trial relate to the assessment of damages. The second defendant is the first defendant’s insurer and conducted this proceeding on his behalf. 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]
    The trial was heard over six days. The plaintiff and three lay witnesses gave evidence. Expert evidence was given by two orthopaedic surgeons, two neurologists, a psychiatrist, a radiologist and a neurosurgeon. Other expert reports and records were tendered by consent. Detailed written submissions have been provided by the parties which were supplemented with oral submissions.
  3. [3]
    The plaintiff claimed $401,353.05. In closing written submissions, that figure was reduced and the plaintiff contended for a range of damages not adjusted for contributory liability of $143,299.61 to $259,808.61 consisting of the following:
    1. General damages – ISV of 25 – $50,100.00; 
    2. Past special damages: $4,022.00;
    3. Past economic loss – $8,000.00-$15,008.00;
    4. Loss of past superannuation – $800.00-$1,500.00;
    5. Future economic loss – $100,000.00-$200,000.00;
    6. Future care – $6,840.00; and
    7. Future expenses – $32,437.61.
  4. [4]
    It is not disputed that the plaintiff suffered:
    1. Injury to the left and right knees in the form of abrasions; and
    2. A minor head injury.
  5. [5]
    The defendants otherwise deny the plaintiff suffered any other injury as a result of the accident. The plaintiff claims, in addition to the injuries not in dispute, he suffered the following:
    1. Injury to the neck;
    2. Injury to the lumbar spine;
    3. Psychiatric injury;
    4. More severe head injury; and
    5. More severe injuries to left and right knees.

Issues in Dispute

  1. [6]
    The following is in dispute between the parties to this proceeding:
    1. Whether the plaintiff suffered injury to the neck, lumbar spine and of a psychiatric nature as a result of the collision. If so, what is the nature and extent of any such injury;
    2. What is the nature and extent of the injuries to the left and right knees and head;
    3. To general damages: what is the appropriate assessment of the plaintiff’s injuries pursuant to the Act and Regulation;
    4. Whether the plaintiff has suffered past economic loss. If so, what is the proper quantification of any such loss;
    5. Whether the plaintiff has, or will in the future, suffer loss of earning capacity as a result of the collision. If so, what is the proper quantification of any such loss;
    6. Whether the plaintiff has incurred special damages in the past as a result of the collision. If so, what is the proper quantification of any such expenses; and
    7. Whether the plaintiff will require paid assistance in the future as a result of any injury suffered in the collision. If so, what is the proper quantification of any such requirement.

The accident

  1. [7]
    Liability was admitted but I was asked to draw some inferences from the evidence.
  2. [8]
    The police report is said to state that the plaintiff rode his bicycle, at speed, straight over a pedestrian crossing without first stopping and hopping off his bicycle. The first defendant did not have time to apply brakes and collided with the plaintiff, who was not wearing a helmet, on the pedestrian crossing.[1]
  3. [9]
    The ambulance records include “[patient] riding push bike when struck by ute. [Patient] seen to go over bonnet and land on grass. Said to have been initially unconscious.”[2]
  4. [10]
    The Gold Coast Hospital notes include “went riding on bicycle, not wearing helmet and impacted with car. Witnesses reportedly described patient and bike hitting front of car (dent to bonnet) and patient “flying over the car”. Initially unconscious at scene but rouses quickly with fluctuating GCS. At worst GCS 12, but mostly 14-15.”[3]
  5. [11]
    Photographs of the scene were tendered which depict it was a 40 kilometre per hour zone during school time.[4] The accident occurred, according to the ambulance records, after the school zone had expired, when the speed limit is 60 kilometres per hour. 
  6. [12]
    The plaintiff’s evidence was that he recalls that he was not wearing a helmet. He was hit on his left side and “it was so strong that I hit my head on the bonnet”[5] and indicated to his left temple when giving evidence. As his head hit the bonnet he saw a “not small dent” on the bonnet.[6] He got “flung off” and landed about four metres away.[7]  He landed on his palm, elbow, hip and knee and pointed to his right side when giving evidence.[8] He managed to get to the gutter – he was lapsing in and out of consciousness and was sweating heavily. He was in a lot of pain. An ambulance arrived. In the ambulance he was in a lot of pain to his thighs, legs, arms, chest and head.[9]
  7. [13]
    There was a focus in the trial on the mechanism of injury as supporting the plaintiff’s case as to the nature and extent of the injuries suffered.  I am asked by the plaintiff to draw an inference that the accident occurred “whilst the first defendant’s vehicle was travelling about 50 km/h”[10] for the following reasons:
    1. The evidence establishes that the collision occurred in a school zone designated as a 40 km/h zone;
    2. The reduced speed limit of 40km/hr would not have applied at the time of the collision because the 000 call was received at 9.48am and the school zone hours ended at 9am;
    3. The speed limit at the time of the collision would have likely been 50 km/h by operation of s 25 of the Transport Operations (Road Use Management- road Rules Regulation 2009;[11]
    4. The evidence includes a summary of the Queensland Traffic Crash report which includes that the first defendant “has not had any time to apply brakes”;
    5. The evidence includes a summary that “witnesses reportedly described [the plaintiff] and bike hitting front of car (dent to bonnet) and patient “flying over the car”;
    6. The evidence includes that the first defendant was over the general alcohol limit at the time of the collision.
  8. [14]
    The defendants’ counsel submitted during the trial that the only inference I could draw with any confidence is that the “vehicle was travelling with enough force to throw [the plaintiff]”[12] but then stated whether it is 30 km/h or 40 km/h “doesn’t much matter.”[13]  In the defendants’ written reply submissions, it was stated that the documents relied upon by the plaintiff for proof of speed (leaving aside the photographs) were not tendered for their truth.
  9. [15]
    I am prepared to accept that the plaintiff’s bicycle was hit by the first defendant’s vehicle at a speed in the order of 40 kilometres per hour given the relevant speed limit and that there is no evidence of the first defendant’s vehicle braking before the collision. I am otherwise not prepared to draw any inference as to a higher speed on the state of the evidence. It would be complete guesswork. I note that the plaintiff’s counsel in closing submissions accepted that it doesn’t make any difference between 40 or 50 kilometres an hour for the mechanism of injury.[14]
  10. [16]
    The plaintiff also contends that I should accept that his head hit the insured vehicle with sufficient force that the bonnet of the insured vehicle was dented.[15] I am not prepared to make this finding on the state of the evidence.  As I detail below, due to the matters set out by me, I seriously doubt the plaintiff’s credibility and reliability. I am not prepared to act on his evidence alone that he recalls his head hitting the bonnet and seeing a “not small dent” on the bonnet. If the records are admissible for their truth, it still does not assist the plaintiff as no record states that the plaintiff’s head hit the bonnet let alone that it was the head that caused the dent to the bonnet.

Plaintiff’s credibility

  1. [17]
    The plaintiff bears the onus of proof to satisfy the court on the balance of probabilities that his claim should be accepted. His credibility has been called into question.
  2. [18]
    The plaintiff’s counsel urged me to accept the plaintiff’s evidence as truthful and reliable and submitted the plaintiff ought to be regarded as a witness doing his best to give an honest account of himself. It was submitted that I should be mindful of limits on the ability to make credibility findings based on demeanour and the desirability of testing credit by reference to objectively established facts. It was submitted that the plaintiff has unchallenged significant difficulties with his memory, has substantial problems in processing and communicating information and is affected by his mental health.
  3. [19]
    The defendants’ counsel submitted that I should not accept the plaintiff’s account going as far as stating that his questionnaires being completed for Dr Cleaver were “nothing short of fraudulent.”[16] It was submitted that “overall the plaintiff is not a witness whose credit can be accepted. At best for him he is extremely unreliable; at worst deliberately dishonest.”[17]
  4. [20]
    As McMeekin J observed in Bell v Mastermyne Pty Ltd [2008] QSC 331 at [19]:

“…The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting of his or her symptoms; of their impact on the plaintiff’s life; of pre existing problems; of the genuineness of effort to regain employment after injury; and of the capacity to maintain employment. These are all difficult issues for a defendant to thoroughly investigate and test. In truth no one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities…”.

  1. [21]
    In that case, it was known that the plaintiff was prepared to be dishonest for his financial advantage. As Cooper J stated in Baldock-Davis v Popham & Anor [2023] QSC 24 at [25], even if not satisfied that the plaintiff has been dishonest in reporting matters, it is “no less important that the court be satisfied as to the reliability of such reporting.”
  2. [22]
    I do not consider that the plaintiff was a credible and reliable witness and I am not prepared to act on his evidence where it is not supported. It is my view that the plaintiff has exaggerated to most of the medical experts and, to a lesser extent, this court (leaving aside the left sided symptoms which I am not satisfied of), the extent and constancy of his injuries and ongoing symptoms, care that he has received and will require in the future.
  3. [23]
    In forming this view, I have taken into account the findings of Ms Jackson[18] in considering the plaintiff’s self-report and evidence and also recognise the fallibility of memory. I have also taken into account, as per the plaintiff’s submissions, that English is the plaintiff’s second language. Further, that Dr Murphy assessed the plaintiff as an “open, unguarded and credible historian” however I note that was for the purpose of a psychiatric examination, where Dr Murphy opined that the plaintiff’s mental health was stable, rather than generally assessing his credibility in relation to the issues I need to determine. 
  4. [24]
    I have excluded from my consideration Dr Khursandi’s opinion that the plaintiff displayed “inappropriate signs” or “abnormal illness behaviour” given the plaintiff’s contention that it should be disregarded due to the inappropriateness of that part of his examination.[19] I have determined that I do not need to make a decision on this issue, and am prepared to exclude it from consideration, given the weight of other factors detailed below.[20]
  5. [25]
    I have also taken into account the different timing of accounts and that injuries and symptoms may resolve or aggravate over time.
  6. [26]
    My reasons for not accepting the plaintiff’s evidence as to the extent and constancy of his injuries and ongoing symptoms where it is not supported are for the following reasons in totality:

Lack of complaint of symptoms relevant to the claim to Queensland Ambulance Service and Gold Coast University Hospital

  1. [27]
    There is no reference in the ambulance records or examination at the hospital to any neck, thoracic or lumbar injuries. 
  2. [28]
    The ambulance records record an initial Glasgow Coma Scale (“GCS”) of 12, recovering to 15/15 within 10 minutes. Anxiety, rigidity of abdomen and pain described as aching radiating to the upper right leg and numerous abrasions or grazes on the arms and legs are noted.[21] 
  3. [29]
    The examination at the hospital notes superficial abrasions to the right hip, bilateral knees, right anterolateral shin and right elbow.[22] The CT scan revealed no abnormality.[23] A Doctor’s note at 6.13pm does not reference a head injury, neck pain or back pain.[24]
  4. [30]
    I accept that the plaintiff’s focus may have been on the abrasions he sustained in the accident and, as the plaintiff’s counsel submitted, that his pain may have been masked by the analgesia he received[25] (although that is inconsistent with the complaints of pain in other areas reported to the hospital). If there was a complaint to a medical practitioner proximate to the hospital admission, then lack of complaint to QAS and the hospital may be explicable but, as I go on to detail, there was no complaint to any medical practitioner of any symptoms from the car accident for approximately three years.

The plaintiff saw medical practitioners between the accident and 20 January 2020 but did not complain of any symptoms from the car accident.

  1. [31]
    The plaintiff saw medical practitioners on at least 17 occasions for a myriad of issues including: a problem with his right eye and right eyelid (27/9/18 and 9/10/28); a cyst on his right buttock; food poisoning (14/11/18 and 16/11/18); gastro bug (7/1/19); attending with a youth social worker to arrange housing (29/7/19); flu like symptoms (6/8/19 and 8/8/19);  flu symptoms and unable to go to work (14/8/19); upper respiratory tract infection (1/10/19); cough, temperature and malaise (23/10/19); vomiting and wanted medical clearance to go back to work (11/11/19);  but made no mention of any symptoms as a result of the motor vehicle accident.[26] 
  2. [32]
    The plaintiff even went to see the Doctor about an injury to his back he said he suffered at work whilst shovelling meat.  A few days later, on 31 October 2018, the plaintiff returned to the doctor and the notes of the doctor are “full ROM, no pain.”[27] It is incongruous that the plaintiff would have reported “no pain” when according to his evidence he was suffering significant (my word) ongoing pain in his back as a result of the accident.
  3. [33]
    I have taken into account the plaintiff’s explanation[28] that he thought the injuries would heal on their own and he didn’t know what to do and “just took Panadol and Nurofen”[29] but that is not a plausible explanation for failing to report any symptoms for more than two years with pain that he describes as, at least at times, 7 or 8 out of 10[30] and suffering the left sided symptoms. I have further taken into account the plaintiff’s explanation for not reporting the left sided symptoms that he was embarrassed.[31] That is not a plausible explanation when considering that he had no difficulty in reporting the symptoms after consulting with a solicitor on 23 December 2019.[32]

Timing of complaint to medical practitioner – after consulted with solicitors

  1. [34]
    The first complaint to a medical practitioner followed his consulting with solicitors on 23 December 2019.[33] The plaintiff accepted in evidence that he knew, from about that time, that he would need to go and see medical practitioners if he was going to bring a case about the injuries that he had received as a result of the accident.[34]
  2. [35]
    The plaintiff accepted that he went to the Doctor because the solicitors told him that he had to go and get a medical certificate although also said it was “the little push” and he was concerned and scared about the symptoms.[35]

Inconsistencies and ongoing lack of complaint to general practitioners and others even after went to solicitors

  1. [36]
    The first consultation (other than attending at hospital on the day of the accident) in relation to any symptoms as a result of the motor vehicle accident was on 20 January 2020 when the plaintiff attended a general practitioner for the purpose of obtaining a certificate relevant to his claim. The medical record is:

“States 29 March 2017 struck by a car. Solicitor requesting certificates. Admitted to GCUH for 2/7.[36] States did not reattend hospital and did not follow up with any doctor. We have not seen this patient. States cannot fully extend elbow…States 50 times a day left side body transiently tenses up. States difficulty running because of pain in left ankle”.[37]

  1. [37]
    Even on 20 January 2020, when he went to the general practitioner for the purpose of obtaining a certificate about the injuries he sustained in the accident, the plaintiff did not mention any neck pain, back pain, knee pain, headaches or any psychological or psychiatric symptoms. Also, in evidence in this court, when questioned about the left sided symptoms, he accepted that the 50 times a day was a “rough estimation.” When cross-examined about the fact that would mean it was occurring every 20 minutes if the plaintiff was awake for 15 hours a day, the plaintiff responded “it’s not happening every three times an hour. It’s just so random…”.[38]
  2. [38]
    I have further taken into account that the plaintiff continued to see general practitioners after he consulted with solicitors, and, other than the entry of 20 January 2020, he did not discuss the accident. This included 30 December 2019 for food poisoning; 24 February 2020 for clearance to return to work; 31 March 2020 for a runny nose; 2 April 2020 a clearance to return to work; 23 July 2020 for sneezing and a runny nose – wanting clearance to return to work; 1 August 2020 sneezing at work- fit to return to work; 13 November 2020 sneezing – certificate given; 9 December 2020 for migraines and was unable to work;  13 February 2021 painful stomach – wanting a note to say he can return to work; 4 April 2021 – abdominal pain – return to work tomorrow; 26 April 2022 as generally unwell with abdominal pain and diarrhoea – settled – medical certificate given; and 5 May 2022 for frontal headache today – diagnosed headache.
  3. [39]
    The plaintiff’s explanation is that he went to the doctor to “get a day off” and did not want to let his employer know about his issues related to the accident – he didn’t want his employer to know that he was a liability.[39] He explained that he had to hand his employer the medical certificate clearance to go back to work with an explanation of the sickness. The plaintiff then said that was “partly the reason” and he repeated that he also thought it would heal on its own and he would take Panadol and Nurofen if he was in pain which I have detailed above are not, in my view, plausible explanations.
  4. [40]
    In the letter of instruction to the neuropsychologist Ms Jackson,[40] the only mention is of left ankle pain and elbow pain. There is no mention of any injury to neck or lower back, head injury or a psychological or psychiatric problem.
  5. [41]
    The letter of instruction to Dr Todman dated 9 April 2020 stated “injury to the left side of his body in particular head, elbow and ankle.”[41] It was suggested to the plaintiff that he did not mention an injury to his neck and back to his solicitors before that time. The plaintiff’s response was “I did not, but the pain was there.”[42]

Inconsistencies in what plaintiff reported to experts and to this court

  1. [42]
    There are inconsistences in what the plaintiff reported to the experts which are inconsistent with each other and inconsistent with the evidence he gave in court. Whilst I have summarised some of these here, I also include others under consideration of the relevant injuries below:
    1. The plaintiff accepted in evidence that he did not mention to Ms Jackson his neck or lower back pain (but indicated in respect of his back that middle back was to encompass this).[43]
    2. In evidence, the plaintiff said that he was at times depressed to the point of being suicidal[44] but he did not mention this to Ms Jackson, Dr Murphy or anyone else.
    3. The plaintiff reported to Ms Jackson that he was “forgetful, forgetting what people have said and appointments and having to write notes”[45] but made no mention of this in evidence nor did any of the other lay witnesses.
    4. To Dr Cleaver, Dr Todman and Dr Khursandi he reported that his lower back pain was “constant” whereas in evidence he stated it was only in certain positions.
    5. The plaintiff told Dr Cleaver that he had headaches every day “for one to two hours after mechanical activities”[46] whereas in court he said he has headaches at least once or twice per week.[47] 
    6. The plaintiff told Dr Cleaver that he spent four days in hospital which is false.
    7. The plaintiff told Dr Cleaver that “I need help every day in most aspects of self care” whereas in court the plaintiff said it was 1-2 hours per week.[48]
    8. The plaintiff told Dr Cleaver that “I stay at home most of the time” when the week prior to seeing Dr Cleaver he had worked 44 hours; 43 hours the week he saw Dr Cleaver and 52 hours in the following week.[49]
    9. The plaintiff told Dr Cleaver, Dr Todman and Dr Khursandi he had constant neck pain whereas in evidence he said it was not constant.
    10. The plaintiff told Dr Todman that his neck pain is in the midline and extends into both shoulder girdles and averages up to 9/10 on a daily basis and that pain increases with movements, postures and activities. As I have detailed, the plaintiff in evidence said that the pain is reactive not constant.
    11. The plaintiff told Dr Cochrane that he had “developed over time escalating lower back pain after the accident” whereas his evidence was that the pain had commenced immediately following the accident and the first episode was when he went to stand up from the toilet which was “very painful.”[50] There is no record of the plaintiff having said this at any previous time to giving evidence in chief in this court.
    12. The plaintiff told Dr Cochrane that he had scapula pain which he did not give evidence of in this court.
    13. The plaintiff told Dr Todman that his headaches started at the back of his head and came around to the front whereas in court he said it was from the front and works its way around.[51]

Social media posts are inconsistent with plaintiff’s claim

  1. [43]
    There were a number of exhibits tendered of social media posts of the plaintiff and his girlfriend. I have taken into account the plaintiff’s submission that social media posts are “merely a snapshot in time and care must be taken in too readily making conclusions about a person’s injuries based on that evidence.”[52]
  2. [44]
    In this case, the social media posts paint a different story to that reported around the same time to Dr Cleaver in 2024[53] that “I stay at home most of the time because of my back”; “I stay in bed most of the time because of my back”; and “I wouldn’t be able to sit through dinner in a restaurant without having pain”. The social media posts show the plaintiff enjoying activities including going out to dinner with his girlfriend, going on holidays to Sydney and Bali, go-karting, riding an electric scooter, rock and rope climbing, quad biking, dodgem cars, hiking, lifting up his girlfriend, and his girlfriend sitting on his shoulders. The plaintiff’s neck is shown turning. The below table is a summary of the images/posts. The dates are either on the images or have been inferred based on the content and the evidence that the relationship commenced in May 2023.

Exhibit

Image #

Date

Description

10

1

7 May 2024

Depicts the plaintiff and Ms. Morante sitting together at a restaurant for what seems to be a dinner for their first anniversary.

2

29 March 2024

Depicts the plaintiff and Ms. Morante sitting together at a restaurant for lunch.

3

25 March 2024

Depicts the plaintiff and Ms. Morante on a date at Felons in Brisbane. The plaintiff is kissing Ms. Morante on the cheek.

4

25 March 2024

Taken on the same occasion as Image 3. Depicts the plaintiff on his phone at Felons in Brisbane.

5

13 March 2024

Depicts the plaintiff and Ms. Morante sitting together at what appears to be a restaurant. The plaintiff is holding Ms. Morante around the waist.

6

15 February 2024

Depicts the plaintiff sipping from a champagne flute on a gondola-style boat. The caption of the photo notes that it was a Valentine’s Day celebration.

7

4 February 2024

Depicts the plaintiff and Ms. Morante sitting together at what appears to be a restaurant. The plaintiff is holding Ms. Morante around the waist.

8

3 January 2024

Depicts the plaintiff and Ms. Morante sitting together at a restaurant for lunch. The plaintiff is kissing Ms. Morante on the cheek. The caption states that the photo was taken during a New Year’s Day celebration.

9

26 December 2023

Depicts the plaintiff and Ms. Morante sat together at a table at The Emporium in Brisbane for dinner.

10

26 December 2023

Taken on the same occasion as Image 9. Depicts the plaintiff and Ms. Morante sat together at a table at The Emporium in Brisbane for dinner.

11

1

2 September 2023

Shows the pricing of the various packages on offer at the go-karting facility.

2

2 September 2023

Shows the plaintiff and Ms. Morante standing next to one another wearing go-karting helmets. Ms Morante is holding the plaintiff’s arm.

3

2 September 2023

Shows the plaintiff climbing a rock wall.

4

2 September 2023

Shows the plaintiff at the top of a climbing rope.

12

1

10 May 2024

Depicts the plaintiff standing behind Ms. Morante and kissing her on the cheek. The plaintiff’s neck is fully rotated to his right. Based on what they are both wearing, this photo appears to have been taken on the same occasion as Exhibit 10 Image 1 but was published 3 days later.

2

17 April 2024

Depicts the plaintiff and Ms. Morante at a beach. The plaintiff is carrying Ms. Morante fully in his arms.

3

31 March 2024

Depicts the plaintiff hiking down an unsealed path in Springbrook. The plaintiff wears a small backpack and is carrying a water bottle in one hand, and a bag in the other hand.

4

14 February 2024

Depicts the plaintiff and Ms. Morante eating a meal on a gondola-style boat. Taken at the same time as Exhibit 10 Image 6 but published a day earlier.

5

17 December 2023

Depicts the plaintiff and Ms. Morante in a pool. Ms. Morante is sitting atop the plaintiff’s shoulders.

6

16 November 2023

Depicts the plaintiff driving a vehicle while Ms. Morante is sitting in the passenger seat. The plaintiff and Ms. Morante are holding hands across the centre console.

7

9 November 2023

The plaintiff and Ms. Morante are standing on a beach in front of a shipwreck.

8

12 September 2023

Depicts the plaintiff and Ms. Morante standing in front of the Sydney Harbour Bridge and Opera House.

9

21 September 2023

Depicts the plaintiff sitting at a restaurant. The caption makes clear that it was to celebrate the plaintiff’s birthday.

10

21 September 2023

Taken at the same time as Image 9. Depicts the plaintiff and Ms. Morante sitting aside one another eating a piece of cake at the same birthday celebration.

11

12 September 2023

Depicts the plaintiff and Ms. Morante sitting in elevated seating wearing virtual reality goggles. The caption makes clear that the photo was taken on the couple’s “last day” in Sydney.

12

10 September 2023

Depicts the plaintiff and Ms. Morante sitting next to one another on a plane. The caption has the hashtag #sydney.

13

10 September 2023

Taken at the same time as Image 12. A picture of the inside of the plane from where Ms. Morante was sitting. Looking forward, essentially Ms. Morante’s point of view down the plane towards the cockpit.

14

2 September 2023

Depicts the plaintiff and Ms. Morante participating in dodgem cars at the Gold Coast Show. The plaintiff and Ms. Morante are sitting in separate cars. The plaintiff is also using his phone to take a photo or video of Ms. Morante.

15

2 September 2023

Taken at the same time as Image 14. Depicts the plaintiff looking back at Ms. Morante over his left shoulder. The Plaintiff’s neck is fully rotated to the left such that he is looking behind his direction of travel.

16

2 September 2023

Taken at the same time as Image 14 and Image 15. Depicts the plaintiff now looking forward and driving away from Ms. Morante.

13

1

17 April 2024

Depicts the plaintiff driving a vehicle whilst Ms. Morante is sitting in the passenger seat.

2

14 March 2024

Depicts the plaintiff and Ms. Morante riding a quad bike together. The plaintiff is in control of the quad bike, Ms. Morante is sitting in front of him between his legs.

3

14 March 2024

Taken at the same time as Image 2. Depicts the plaintiff and Ms. Morante riding a quad bike together and sitting in the same way as Image 2. Ms. Morante is now in control of the quad bike. The plaintiff is holding on with one hand and holding something above his head with the other hand.

4

14 March 2024

Taken at the same time as Image 2 and Image 3. Depicts the plaintiff and Ms. Morante riding a quad bike together. The plaintiff is in control of the quad bike, Ms. Morante is sitting in front of him between his legs. The quad bike is being driven through a water crossing, under a bridge.

  1. [45]
    The plaintiff said in evidence that he did experience pain with these activities but did them to impress his girlfriend; he didn’t want his girlfriend to know that he was “less of a man”; he wants to live a “happy life”; he did not want to be “less of a loving and happy partner”; and these were “special times”.[54] Whilst that may all be the case, in my view the social media posts are inconsistent with the plaintiff being in pain to the level that he has described to the experts, and to a lesser extent this court. Further, the social media posts are inconsistent with the plaintiff suffering the left sided symptoms which I detail further at [153].

Other findings against plaintiff’s credit

  1. [46]
    The plaintiff, in evidence, stated that he was “let go” from his apprenticeship prior to the accident which made him “feel sad”. He said that “to this day he did not know why he was let go”.[55] This is inconsistent with the account the plaintiff gave to Ms Jackson when he said that he left the apprenticeship after about a year as the bosses were mean and disrespectful and they were underpaying him. The plaintiff accepted that if he did say that to Ms Jackson it would be untrue.[56] Similarly, the plaintiff told Dr Cochrane that he “did not complete the apprenticeship and ceased after one year, not wanting to continue in this industry.”
  2. [47]
    The plaintiff in his claim form marked the box that he had not had any alcohol or drugs in the 12 hours before the accident.[57] The plaintiff admitted that he had consumed marijuana on the morning of the accident.[58] His explanation for providing the incorrect answer on the form was that it was “so early in the morning” [that he had taken the cannabis] that he thought it didn’t count.[59]
  3. [48]
    The plaintiff denied that he had said or responded in the ways set out in Dr Saines and Dr Khursandi’s reports.[60] Those denials were of matters which would not have been favourable to him. I accept that the plaintiff did:
    1. respond in the ways set out by Dr Khursandi in his report at the bottom of page 103. I do not accept the plaintiff’s evidence that he did not respond in that way. I do not accept the submission that I should prefer the plaintiff’s evidence including because there were no contemporaneous notes of the examination by the Doctor and because he had not reported any tenderness to Dr Cleaver or in evidence in this court. Given the extent of the inconsistencies and other factors detailed, I prefer the evidence of the Doctor;
    2. respond in the way set out by Dr Saines, that is, that the plaintiff denied any significant neck or lower back symptoms apart from after heavy physical activity. In evidence, the plaintiff denied having said this to Dr Saines and said he had informed the Doctor that it would be worse after heavy work.[61] I accept the evidence of Dr Saines.
  4. [49]
    Dr Khursandi noted that when examined by Dr Cleaver on 20 March 2020, the plaintiff exhibited full flexion and extension of his lumbar spine. When he was examined by Dr Todman about a month later, his forward lumbar flexion was reduced by about 40 degrees (about half of the normal range). When examined by him, two months later, the plaintiff had full forward flexion (same as Dr Cleaver). Dr Khursandi noted that there is no medical explanation for the discrepancies.
  5. [50]
    I have detailed as necessary the extent to which I have accepted or rejected the plaintiff’s evidence under the relevant heads of injuries below.

Issues

  1. [51]
    The plaintiff bears the onus of establishing the injuries suffered in the accident and the ongoing effects of them. The standard of proof is the balance of probabilities.

Whether the plaintiff suffered injury to the neck and if so, what is the nature and extent of any such injury.

Plaintiff’s evidence

  1. [52]
    The plaintiff gave evidence that he has “headaches at least once, twice a week” which he takes “Panadol and Nurofen, whichever is available.”[62] He said it was a pain of “maybe three going up to four” and described it as a “throbbing sort of pain”.[63] The plaintiff gave evidence that if he takes medication, it would “slowly ease” down to nothing.[64] He described that the headache starts at the front of his head and works its way around to the top of the head.[65] Without medication, the headache lasts a day or two.[66]
  2. [53]
    The plaintiff further gave evidence that he had “pain in the neck”. He described it as a “restriction kind of pain. Like, I say right now that if I was just staying like this…I don’t feel any pain on my neck at the moment, but if I was to move it in a way that it does not agree with, I feel the pain.” [67] He said he experiences neck pain daily and without medication it is a “seven, eight. It’s really painful.”[68] Medication assists with the pain and if he was to “take maybe two Panadols or Nurofen, it would drop down to maybe one to none.”[69] The plaintiff said that he had full movement in his neck in all directions but flexing his neck, extending his neck and rotation to the left caused pain.[70] From the day after he came home from the hospital, his neck was in pain. He stated that he had consistently had pain.[71]
  3. [54]
    The plaintiff also gave evidence of the following symptoms:

“Just for a very brief moment, I would – wouldn’t have full control of my – my left side.  Um – what happens is it’s just – I don’t know where it would seize – it would, like, tense up – um – on its own and it would – like, my – my ankle.  My ankle, my foot – my foot would try and bend itself inwards – upwards and my – my thigh would tense and my – uh – my wrist, my hand, would also curl – like, my – my fingers would curl – um – inwards, towards my – my body.  My – my elbow would also – my – my muscle – my forearm muscle would also tense – um – but I usually used my right hand to – um – make it look like I’m – I’m normal.  I’m very – um – self-conscious about – uh – I just – I’m scared of being judged, of course.  Um – I – I don’t really want – many people – it took me a long time to – actually open this up, because I just didn’t want to – people to judge me because I’m losing control over my left side… (“left sided symptoms”).[72]

  1. [55]
    The following exchange occurred in evidence, in relation to the left sided symptoms:

“[they started] roughly a couple of months – um – the first one I witnessed, I think, was a couple of months in.  Um – yeah, I think I was getting off my bed and then I was starting to walk and then, all of a sudden, it tensed up and I was – I was confused.  I was very confused.  Um – I asked myself, “What is this?” and then it would go away and then I’d just, kind of, shrug it off, you know?  Like, “Oh, that was so quick.”  Um – I didn’t know what it was.

Now, you used the words “a couple of months in”.  What do you mean by couple of months in”?   Um – I – honestly, I don’t know what date, what – um – I – I know it was, like, roughly, roughly two months after my – after being hit by the car, the accident, I started having these episodes where I would lose control of my left side.

All right.  How often do you get them?   Um – well, honestly, it – I can’t say, like, precise time – like times that they happened, but roughly five times to 25 times a day, it would happen.  Random.  Sometimes maybe less, sometimes – yeah.

When these symptoms come on, how long do they last?   Five seconds, 10 seconds.  It was a really short, brief moment.

…

And can they sometimes be longer?   Yes.  But, like – uh – honestly, I can’t control it.  Um – it’s just so sudden.  It happens out of nowhere – um – where I can’t really give – like, I know I feel it and, like, yeah.

Do you get any warning before it starts?   Zero warning.”[73]

  1. [56]
    The plaintiff’s counsel accepted in closing submission that the left-sided symptoms should be defined as per what the plaintiff gave evidence of in this court.[74]

Charmaine Brissett

  1. [57]
    Ms Brissett works at the IGA Currumbin with the plaintiff and sees him 2-3 times per week at work.  She described the plaintiff as “…happy go lucky guy, just gets on with the job, as we all do, I suppose.”[75] Ms Brissett has observed the plaintiff “grimace and, you know, stretching and – um- even at the registers, stretching his neck and stuff”.[76] She explained when she sees him stretching his neck you can see the strain on his face. She has also seen him “rubbing his neck”.[77] She observed the plaintiff sitting down and rubbing his hand.[78]

Apple Morante

  1. [58]
    Ms Morante is the plaintiff’s girlfriend since mid 2023. She has seen him touching the back of his neck and taking Nurofen or Panadol. She doesn’t know how often he takes it.[79]

Dr Cleaver

  1. [59]
    The plaintiff’s solicitors arranged for him to be examined by Dr Cleaver, orthopaedic surgeon. He first saw the plaintiff on 20 March 2020. The plaintiff reported constant neck pain, in the midline at the base of his neck. The plaintiff rated it as 7/10. The neck pain was reported to be associated with daily headaches – lasting for one to two hours after mechanical activities. On the Neck Disability Index the plaintiff ticked boxes including that “the pain is fairly severe at the moment”; “I cannot do my usual work”; “I can hardly drive at all because of severe pain in my neck”; and “I can hardly do recreation activities because of pain in my neck”. Dr Cleaver stated that “[the plaintiff reported] a bizarre set of symptoms, which affect the left side of his body in a hemiplegic type distribution but not hemiplegic in characteristics. These symptoms he described as a “tension” causing rigidity and dysfunction. They happen approximately 20 times per day and last from between 15-20 seconds. These symptoms strike insidiously and are not related to mechanical activities. In the report fashioned by Dr Leanne Jackson, these symptoms are mentioned, and hers is a note that one of these episodes was observed during her interview with him. None were observed by myself.” 
  2. [60]
    Dr Cleaver assessed 68% on the Neck Disability Index and diagnosed a muscular whiplash injury, cervical spine. He opined as follows:

“Cervical spine: The cervical spine examined abnormally. In essence he has asymmetrical loss of range of motion. He did not have any tenderness in the cervical spine.

What was lost was left-sided rotation which was reduced to 25% of normal,[80] left sided lateral flexion which was reduced to 50% of normal,[81] right sided rotation which was reduced to 50% of normal. Extension and flexion were performed fully, but there was grimacing mid-range indicative of pain”.

  1. [61]
    He opined:

“Using Table 15-5 on page 392 of the Guides, [the plaintiff] would also satisfy the criteria for DRE Cervical Category II. This is as a result of him having asymmetrical loss of range of motion in association with an accident that can cause this clinical spectrum of symptoms and signs. He is awarded a further 5% [WPI] for this.”

  1. [62]
    On 13 May 2024 Dr Cleaver examined the plaintiff for a second time. The plaintiff reported constant pain at the base of the neck. A consistent finding on examination for the second report was “painful and staccato movement to the right side.” A diagnosis was made of soft tissue injury, cervical spine and musculoligamentous sprain, lumbar spine. His assessment of WPI remained unchanged for the cervical spine.
  2. [63]
    In a note dated 15 May 2024, Dr Cleaver stated that he did not observe any symptoms to the left side of the body on examination for the purpose of the second report nor did the plaintiff report any symptoms to him.
  3. [64]
    In a note dated 28 March 2025, Dr Cleaver opined that the CT scan taken on the day of the accident showed a normal alignment to the cervical spine with no evidence or a disc bulge or disk protrusion. In relation to the 2024 CT scan, it showed: “spondylotic changes at C5/C6 manifested as a bulging disc, and some ossification of the posterior longitudinal ligament most prominent on the posterior body of C6. There was a focal kyphotic deformity about C5/C6”.
  4. [65]
    Dr Cleaver opined “the fact pattern that, on balance of probability, best fits this scenario of trauma, clinical symptoms and radiological findings is that when the claimant was ejected from his bike and landed on the bitumen with sufficient force to induce momentary loss of consciousness, he injured the disc at C5/C6 by means of an internal disk disruption  which was not sufficient to be evident radiologically some hours later (CT scan of 2017) but proceeded to demonstrate the natural history of an internal disruption with the development of pain, micro instability, and an inability to maintain lordosis at that particular motion segment (C5/6). Radiological evidence of this natural history is evident on the CT scan of 2024. Muscle spasm if present at assessment does direct passage into DRE category 2 using AMA5 methodology.”
  5. [66]
    Dr Cleaver further opined “for an injured disc to be responsible for loss of lordosis, there either had to be severe catastrophic trauma at the time of injury, or relatively minor trauma by means of an internal disc disruption which can take years to develop to a stage where there is loss of lordosis. For completeness, this latter scenario is extremely common in clinical practice.” His note concludes with the following “it is my professional opinion that the [plaintiff] suffered an injury to his C5/C6 disc when he had his accident on the 29th March 2017…A comparison between the [plaintiff’s] two CT scans clearly indicated that in the intervening time period the C5/C6 disc has become incompetent, unstable, associated with a focal kyphotic deformity, a straightening of the normal cervical lordosis and the most likely reason for this is the accident.”
  6. [67]
    In evidence, Dr Cleaver accepted that if there had been such an internal tear to the disc he would expect the person to complain of symptoms at the time and agreed that it might be pain, a burning sensation or stiffness.[82] Dr Cleaver agreed that it makes the theory of an internal disc disruption less plausible if there was not the complaint and agreed “it can’t be substantiated. It’s just a theory that may or may not be correct”.[83]  He agreed that an intervertebral disc protrusion may be caused by quite innocuous events and that it is well accepted that there is a poor correlation between radiological evidence of spinal abnormalities such as protrusion and symptomology. He agreed that the discal abnormality could be the product of the motor vehicle accident but it could be the product of something else which happened much later. It is possible that it could be simply degeneration, even in a person of the plaintiff’s age. He agreed the “all important consideration is the clinical history the patient gives of the onset of symptomatology.”[84]
  7. [68]
    In re-examination, Dr Cleaver stated that the motor vehicle accident is “consistent with causing an internal disc disruption. An internal disc disruption can present years later as a disc protrusion. There’s no scientific formula that you can apply that puts percentage probability on it.”[85]  Further, he agreed that fentanyl, which was noted as having been administered to the patient at the hospital, is a very strong opioid painkiller. He further gave evidence that the accident was consistent with causing a discal injury in the neck and soft tissue injury to the lower back.

Dr Todman

  1. [69]
    The plaintiff’s solicitors arranged for him to be examined by Dr Todman, neurologist on 15 April 2020. In the report dated 15 April 2020 (first report), Dr Todman stated that the plaintiff was “still suffering from symptoms related to this accident.” In relation to neck pain, the plaintiff reported “the neck pain is constant. It is in the midline and extends into both shoulder girdles. It averages up to 9/10 on a daily basis. Pain increases with movements, postures and activities. There is pain at night with poor sleep. Headaches occur frequently, at least three days per week.”
  2. [70]
    Dr Todman opined that “the frequent post traumatic headaches are of muscle tension type related to the neck injury.” He gave an “additional three percent whole person impairment…” for the headaches.
  3. [71]
    In his first report, Dr Todman noted on examination: “in the cervical spine there was restricted range of movement by 30 degrees to 40 degrees in each direction with tenderness in mid-cervical muscles and in both trapezius muscles”.
  4. [72]
    He opined that there was an injury to the cervical spine with chronic pain and restriction in movement which represents a chronic musculoligamentous strain.
  5. [73]
    In relation to the cervical spine, he opined it was a six percent WPI (total of 12 percent with lumbar spine) which is the “lower part of the range of five to eight percent based on the level of symptoms and effects on ADL’s as well as noting restricted movements and radicular complaints.”
  6. [74]
    Dr Todman noted in his first report that the plaintiff reported “on a daily basis he has had episodes of heaviness and weakness of the left arm and left leg, these last about 20 seconds. There are no involuntary movements and he does not lose consciousness with them.” Dr Todman stated the cause of these episodes “is uncertain.”
  7. [75]
    In his second report dated 12 March 2025, Dr Todman opined that the “disc protrusions at C5/6 and L5/S1 are in my opinion most likely related to the trauma of the accident…Although occasionally these may be encountered as an age related degenerative change these findings are in the setting of trauma in a person who had not previously suffered from symptoms in this region and are more likely than not related to the accident of 29 March 2017”.
  8. [76]
    Dr Todman noted that he is:

“generally in agreement with Dr Cochrane’s assessment and conclusions. He is a respected neurosurgeon and spinal surgeon and I have seen many patients assessed and treated by him. The episodic limb symptoms are not explained by any other mechanism from the investigations nor is any other suggestion made by his treating doctors as a potential explanation for these episodic symptoms… I would suggest from a clinical and radiological opinion that the symptoms in the neck are closely correlated with the injury itself and are unlikely to be an incidental finding in a young person and are most likely (greater than 50% chance) related to the accident of 29 March 2017. I can’t comment specifically on the cervical cord abnormality as I have not reviewed the films personally but they are a potential source of the episodic neurologic symptoms with no other cause offered by other medical practitioners”.

  1. [77]
    In cross-examination, Dr Todman accepted that the history component of his report was based on self-report. He stated that it was not unusual for hospital records to not note neck or back pain as a patient may be in shock and have suffered a head injury such that symptoms may develop within 24 hours or 48 hours after an accident.[86] He agreed that his usual practice was to put a patient into DRE category 2 provided they complain of symptoms plus abnormality on physical examination and consistent with a relevant injury.[87] In relation to the range of movement, he agreed it could be feigned but the AMA5 stipulates that it is done on a number of occasions.[88] The measurement of cervical or lumbar range of movement is dependent upon the patient giving full effort.[89] Dr Todman agreed that if there was no pain from the time of the accident until three years after, then you would have to question whether the disc protrusions were related to the accident. He agreed that the link would be hard to establish – that applies to both protrusions.[90]

Dr Cochrane

  1. [78]
    The plaintiff’s solicitors arranged for him to be examined by Dr Cochrane, a neurosurgeon, on 29 May 2024 and 31 May 2024. The plaintiff reported that he suffers from headaches, “some days he is headache free but some days his headache is debilitating, 10/10 in severity on the Visual Analogue Scale…these are holocranial, that is involving the entirety of the head somewhat circumferentially with a tension character.” The plaintiff reported ongoing neck pain: “he describes this as a posterior cervical pain which on average is 5/10 on the VAS. He describes this feeling as “like being punched” in the back of the neck. The neck pain radiates towards the shoulders but not into the upper extremities themselves and will radiate to the base of the skull.”
  2. [79]
    The plaintiff reported “…escalating low back pain and thoracic back pain in particular, perhaps a few days after the injury, and after a week or so this seemed to involve his neck as well. Spinal pain symptoms have persisted. He has needed intermittent Panadol and Nurofen from the time of the accident for spinal pain”. The plaintiff reported that his “spinal pain is getting worse and is now struggling to manage with his escalating pain.”
  3. [80]
    Dr Cochrane, on assessment, noted that:

“the cervical spine revealed nuchal pain with extension and vertebrae prominins (cervicothoracic junction) pain with extension. Comfortable neck movements were three quarters range of flexion and two-thirds range of extension. Lateral flexion of the neck was asymmetrically restricted, three-quarters of full range to the right and just beyond two-thirds of range to the left. Rotation of the neck was three-quarters of expected range bilaterally.”

  1. [81]
    Dr Cochrane opined that the plaintiff has:

“persistent asymmetrically-restricted movements of the cervical and lumbar spine consistent with chronic pain from soft tissue injury…the symptoms are entirely stable, and I believe, highly unlikely to resolve from this point. The prognosis is poor for any improvement or resolution of the symptoms, in my opinion.”

  1. [82]
    Dr Cochrane assessed the cervical spine injury with a 7 percent WPI:

“per AMA5 Table 15-5 this equates to a DRE Cervical Category II impairment which affords a 5%-8% impairment of whole person. His impairments of activities of daily living seem significant together with domestic and recreational activities, with respect to spinal pain 2%. I would upload this range as being applicable, therefore assessment is 7% impairment of whole person. There is no evidence of any pre-existing cervical spondylosis to necessitate deduction.”

  1. [83]
    Dr Cochrane noted that the plaintiff self-reported:

“episodic dysfunction of his left side. He describes periods of significant weakness virtually to the point of hemiplegia on the left side. These are unpredictable and painless, in the sense that they are seemingly not the result nor associated with any significant change [in] his overall pain symptoms. [The plaintiff] gave examples of walking and occasionally trying to run and then suddenly his left side (upper extremity and lower extremity both) become non-functional. If he was running, as he was on at least one occasion, he would have to hop on his right foot and then grab on solid objects with his right hand to avoid falling over. Further, he has episodically dropped items with his left hand due to his left hand suddenly becoming non-functional, unpredictable and without warning or preceding symptoms or aura. These episodes are very frequent and “at least 20 times a day”…These episodes always resolve spontaneously without any change in sensation, pins and needles, anaesthesia and other neurological symptoms [the plaintiff] is aware of. These symptoms have been persistent and a diagnosis has not been reached as best [the plaintiff] is aware.”

  1. [84]
    Dr Cochrane went on to state that the plaintiff reported that “these were first apparent about one-month post injury and haven’t resolved and remain with similar frequency (ie 20 times a day) since they have started.” Dr Cochrane opined that the diagnosis is unclear but it is “highly unlikely” to be a spinal cord lesion. Dr Cochrane opined that:

“irrespective of the specific diagnosis, I believe there is a causal nexus between the injuries and your client’s symptoms in the sense that these symptoms were never suffered prior to the accident, being consistent from approximately one-month post-accident to present date with a persistence frequency of up to 20 episodes each day. Apart from the subject cycling accident, your client was highly unlikely, in my opinion, to develop this dysfunction irrespective of the specific diagnosis.”

  1. [85]
    Dr Cochrane did not assess the disorder for impairment as he could not provide a specific diagnosis at the time of his first report. He suggested further testing.
  2. [86]
    Dr Cochrane, in his supplementary report dated 2 June 2024, opined, in relation to a CT scan of the cervical spine performed following his first report: “the CT scan of the cervical spine I am concerned does reveal a high-density lesion or abnormality within the central to left paramedian aspects of the spinal cord from C3/4 to C4/5… [sets out details of MRI scans recommended]… I am suspicious of some subtle height density signal within the spinal canal in the case of the lumbar spine at the L1/2 level”. Dr Cochrane further opined that the most recent CT scan shows loss and in fact reversal of “normal lordosis of the cervical spine which would be consistent with paraspinal muscle spasm from a musculoligamentous injury to the neck and lumbar spine from trauma (that is, what I have described as a whiplash-associated disorder)…”.
  3. [87]
    The radiologist’s report in relation to the MRI of the spine and brain were performed on 4 June 2024. Dr Cochrane provided a further supplementary report on 25 October 2024. He stated:

“with respect to the MRI scan of the cervical spine as undertaken on 4 June 2024, there is reversal of usual cervical lordosis which is consistent with increased paraspinal muscle tone. There is a disc bulge with some fraying or fissuring of the posterior annulus at the C5/6 level of the cervical spine. I note that the radiologist (Dr Yu Sun (Allan) Lu) reported this as normal, but on my own review of the image, looking at axile images (T2 axial sequence: images 19 to 21 of the series of 32 images), I feel there is increased T2 signal of anterior cord which may represent resolving anterior cord contusion near the midline and which I do not believe  is artefactual. That is, the anterior horns of grey matter of the cord appear to be more prominent than the posterior horns compared to other levels of the cord. I accept that this is a subtle lesion but nonetheless I feel this is of significance given [the plaintiff’s] symptoms. Beside mild degenerative changes involving the upper cervical intervertebral discs, there is no other cervical lesion seen. MRI imaging of the thoracic spinal cord aside of showing a mildly prominent central canal, appears normal and does not show any lesion. Likewise imaging of the lumbar spine excluding mild degenerative changes and annular fissuring of the L5/S1 intervertebral disc does not reveal a neurocompressive lesion. These lead me to conclude that there is, in my view, subtle concussive or contusion type lesion of the anterior cord around the C5/6 level without active cord compression. This may explain episodic weakness episodes of the left sided limbs although I am unable to confirm a precise diagnosis on the radiological findings alone”.

  1. [88]
    Dr Cochrane explained that:

“Straightening of the lordotic curve in the cervical spine is consistent with whiplash type injury or soft tissue musculoligamentous injury to the cervical spine which is entirely reasonable given the mechanism of injury as suffered by [the plaintiff]. This is not a normal finding and reversal of cervical lordosis illustrates ongoing paraspinal muscle tension. Further, the fact that there is disc lesion at C5/6 at the site of the subtle anterior spinal cord abnormality suggests there may have been a contusion or concussive type insult to the cord at this level, more likely than not.”

  1. [89]
    Dr Cochrane opined “on the balance of probability the protrusion at C5/6 is more likely to have been caused by the subject accident in view of the subtle anterior cord changes also seen at this level.”
  2. [90]
    Dr Cochrane, in reviewing his first report, opined that the:

“MRI scan shows subtle changes to the anterior cord white matter, in my view, at the C5/6 level…It is conceivable therefore that your client’s subtle spinal cord abnormality at C5/6 may be a cause for episodic motor dysfunction in left upper and lower extremities. I did state in my last report that there was a possibility of a non-organic or functional disorder resulting in the weakness episodes. This still has to be a potential diagnostic option. There is however no evidence of a right hemisphere legion of the brain on MRI scan to suggest this is a cerebral disorder such as cerebral epilepsy. Therefore, I believe it is reasonable to conclude that a subtle anterior cord abnormality at C5/6 may be the cause of the episodic giving way phenomenon affecting the left upper and lower limb. Irrespective of whether there is organic, psychological, functional or combination disorder affecting the left side of the limbs intermittently, I remain of the view that irrespective of the diagnosis, these events have developed consequent to the subject accident and in my view are causally related to the subject incident of 29 May 2017”.

  1. [91]
    Dr Cochrane, in a file note dated 14 March 2025, did not agree with the opinion of Dr Ault as to the positioning of a person during an MRI scan. He stated that in the plaintiff’s case there was a “complete loss of all curvature of the spine. This suggests that it is highly likely to be muscular and a function of muscle tension on the spine rather than any positioning effect from the MRI scanner”. Dr Cochrane disagreed with Dr Ault’s opinion that there is no subtle anterior cord abnormality around C5/C6 or elsewhere. He observed:

“…effacement of the spinal cord at the C5/6 level which aligns with the visible disc protrusion at that level. When examining axial images of the cervical spine with T2 weighting, I note an increased or more obvious appearance of the anterior horns (T2 signal on MRI) of the spinal cord at that level compared to the remaining levels of the cervical spine. This leads me to conclude that there is a subtle lesion of the anterior horns of the spinal cord at C5/6, which coincides with a disc protrusion at that same level. The anterior horns (also known as the ventral horns, ventral grey matter of the spinal cord, or the motor cells of the spinal cord) primarily contain the nerve bodies and nerve pathways from the movement nerves or motor nerves. They essentially transmit movement from the brain via the spinal cord to the relevant nerves and the periphery. It is plausible that an abnormality in these horns could cause paroxysmal weakness episodes, as these are the motor cells or movement cells of the spinal cord affecting the limbs. When interpreting MRI images, I always review the radiologist’s report but do not rely solely on it. I need to form a clinical correlation between my observations from patient assessment and what their scan actually shows. I spend considerable time reviewing the images themselves and correlating them to the clinical presentation of the patient. Radiologists often do not consider the clinical symptoms of a patient when producing an MRI report because they typically have no ability to clinically assess or examine the patient. In my opinion, radiologists do not have the capacity nor the appropriate training or knowledge to carry out full clinical or neurological assessments.”

  1. [92]
    In relation to Dr Ault’s statement that there is no radiological evidence of a contusional or concussive type of insult to the spinal cord at any level, Dr Cochrane maintained that he observed a disc protrusion at C5/6 and a “somewhat flattened or effaced spinal cord” which represents a lesion that is probably post-traumatic. Dr Cochrane stated that it “is very reasonable that there has likely been a traumatic disc protrusion centrally at C5/6 which likely caused some form of irritation or compression on the anterior spinal cord at that level”. Further, the fact that there is absolutely no degeneration of the thoracic spine on the MRI suggests it “is less likely that the disc protrusion at C5 and C6 is a degenerative condition.” The plaintiff’s image shows “increased fluid signal within the bulging posterior central disc protrusion, which suggests it is more likely an acute lesion rather than a chronic or degenerative lesion”.
  2. [93]
    In relation to Dr Saine’s comment that there would have been some clinical neurological sign at the hospital, Dr Cochrane noted that there is no evidence of any detailed neurologic assessment of the upper limbs having been undertaken. Further, Dr Cochrane was of the opinion that there is evidence of atrophy or shrinking or the spinal cord:

“The spinal cord at the C5/6 level measures 0.51cm front to back, whereas at the C4/5 level, which I consider normal, it measures 0.63cm. This represents a relative 1.2 millimetres difference or decrease in the cord dimension at the level of C5/6. This decrease in dimension indicates the cord has compressed, effaced, or otherwise altered in shape, most likely from some form of trauma having occurred previously. This is at the C5/6 level, in line with the disc protrusion and also in line with the abnormality with the respect to the anterior horns.”

  1. [94]
    Further, in response to Dr Saines’ opinion that the left sided abnormalities would not be explained by the abnormality seen on the MRI, if there was one, Dr Cochrane opined that the “point where the nerve cells run through the ventral horns before they leave to the peripheral nerves is relatively close to the midline and the paramedian or just off the midline region, and in my view within the confines of the C5/6 disc bulge which I can see on the MRI scan. I contend that it was entirely anatomically possible that the motor fibres could have been interfered with by this lesion. The mechanism of injury in this case (where the person was on a bicycle and hit by a car at a speed of 40 to 50 kilometres per hour as mentioned in the hospital notes) reaffirms my view. I think this mechanism of injury was highly likely to have caused personal injury, including a disc lesion of the cervical spine.”
  2. [95]
    Regarding Dr Saines’ statement that there is no way of saying that any discal abnormality shown radiologically at C5/C6 was caused by the accident, Dr Cochrane opined:

“It is true that a discal lesion can be simply degenerative or caused by innocuous events (spontaneous disc protrusion is possible). However, it is equally possible that a disc protrusion can be caused by a traumatic event damaging the vertebral disc. I don’t feel it is reasonable to say that it is purely only a degenerative condition or caused by innocuous events. My opinion is informed by the mechanism of injury and the plaintiff’s young age. The mechanism of injury was entirely reasonable to have caused personal injury, including a disc protrusion of the cervical spine. Further, the patient’s young age at the time of the incident (18) and the absence of any other significant degeneration within the remainder of the cervical spine and the entirety of the thoracic spine renders it, in my view, less likely that he had a pre-existing degenerative condition. Although the MRI was taken when [the plaintiff] was 25, seven years after the accident, there is a slight increase in the possibility that spontaneous or age- related degeneration may have evolved. However, the combined abnormality of the cervical spine cord leads me to conclude that it still remains more likely, in my view, that the discal legion at C5/6 is, on balance traumatic and not simply degenerative”.

  1. [96]
    Dr Cochrane opined:

“In summary, I believe the disc protrusion and spinal cord abnormalities observed in [the plaintiff’s] MRI are more likely the result of trauma from the accident he experienced at age 18 rather than degenerative changes or innocuous events.”

  1. [97]
    In a further note dated 28 March 2025, Dr Cochrane opined that the 2017 CT scan does not show any “clear disc protrusion or reversal or straightening of the cervical lordotic curve” whereas the 2024 CT study shows “reversal of the cervical lordosis or straightening of the cervical spinal column in the imaged region, and with a relative focal point of reversal seemly (sic) centred at C5/6 level. There is evidence of reduced disc height from C2/3 down to C5/6 levels. I see a modest, persisting central to left paracentral disc protrusion at C5/6 which is not overtly compressing the spinal cord. There is not convincing canal compromise nor cervical spinal cord compression on this study.”
  2. [98]
    The suggested method of straightening of the curve (between the 2017 CT scan and 2024 scan) is:

“…persistent increased paraspinal muscle tone (whether that be the point of complete spasm or a generally increased tone cannot be defined purely radiologically) which [has] led to the loss of normal cervical lordotic curve. This to me suggests that [the plaintiff] has ongoing increase in paraspinal cervical muscle tone leading to loss of cervical lordosis. The changes in serial scans suggest there has been acceleration or progression of degenerative disease which I would consider unexpected, in terms of degree, of a man who is presently 25 years of age…I consider it more likely in the case of [the plaintiff] that increased paraspinal muscle tone attention, being the cause for the reversal of the lordotic curve, resulted from cervical spine paraspinal muscular injury which has not recovered…it is not unusual to not see disc protrusion immediately after an accident”.

  1. [99]
    Dr Cochrane concluded the note with this opinion:

“I remain of the view that it was very likely given the mechanism of injury, the progression of radiological findings and [the plaintiff’s] current symptoms that he suffered a cervical spinal injury in the accident. This was likely initially a musculoligamentous injury with annular injury to the C5/6 intervertebral disc. This has led to progressive degenerative disc disease and disc protrusion over time and has resulted, in my view, in irritation of the cervical spinal cord albeit not actively compressed on most recent MRI imaging. I believe the cervical spine symptoms suffered by [the plaintiff] can be reasonably causally related to the subject accident.”

  1. [100]
    In cross-examination, Dr Cochrane confirmed that the mostly likely scenario was that at some point in time there was a protrusion at C5/6 which pressed on the spinal cord and caused damage to the motor nerves in the anterior horns.[91] He considered, given the 2017 CT scans did not show the disc protrusion, the most likely explanation is that there was some damage to the annulus in the accident which developed over time, ultimately allowing the protrusion.[92] Dr Cochrane said “I make the assumption and it is an assumption at this stage, of course, in the absence of any contemporary MRI imaging that there was an annular injury at C5/6 and there were other soft tissue injuries consistent, for example, being thrown a number of metres after being struck by a vehicle. It may well be the neck pain initially was not a major feature, but the injury to the annulars did progress and fray over time.”[93]
  2. [101]
    The following exchange occurred:

“The accident could have caused a discal injury, but it didn’t necessarily do so?—Well, we certainly can’t prove it no.”[94]

  1. [102]
    Dr Cochrane accepted that he relied on the self-report of the plaintiff of significant levels of pain since close to the time of the accident and accepted if that were not true and the plaintiff had no pain for years after the event, it would make it hard to “pin this disc protrusion on the accident”; “if it’s given that there were no pain symptoms at all it seems less likely that there was an injury (my emphasis)”.[95]
  2. [103]
    Dr Cochrane accepted that his opinion that there was abnormality in the ventral horns depends on his interpretation of “those grainy shadows in the C5/6 disc and the C4/5 disc in the little butterfly bits that you’ve pointed out.”[96]
  3. [104]
    Dr Cochrane explained that the MRI coil would not achieve the level of straightening of the lordosis shown on the scan. He accepted that the lordosis on the 2017 scan might look normal but is not normal for the plaintiff because of the fact that he’s in the brace; that the “key to our mystery might be when he actually got pain”;[97] and that an “active range of motion can be fudged…it’s dependent upon the patient’s cooperation.”[98]
  4. [105]
    Dr Cochrane accepted that he had come to the view in his first report that the left sided symptoms were unlikely to be a spinal cord injury and one of the reasons he came to that view was because there were no right sided symptoms.[99] He accepted that the MRI shows damage to the anterior horns bilaterally and he “would expect it more likely that there would be bilateral symptoms. They don’t necessarily need to be symmetrical but yes, it would be more likely.”[100] He did, in re-examination, state that the fact that it’s more likely you would expect bilateral symptoms does not extinguish the possibility of unilateral symptoms as “if there was asymmetric compression of the spinal cord, the injury threshold may have been more substantial on one side than the other, leading to, for example, symptoms developing on one side and not the other”.[101]

Ms Jackson

  1. [106]
    The plaintiff’s solicitors arranged for him to be examined by Ms Leanne Jackson, a neuropsychologist, on 13 February 2020. The report was tendered by consent at trial. I provide more detail in relation to that report under assessment of any psychiatric and head injury. Ms Jackson noted that the plaintiff self-reported to her on 13 February 2020 that “he suffers episodes where it feels like the left side of his body tenses up and he cannot control it. The episode lasts about 25 seconds. It doesn’t hurt but his extremities clamp in certain positions and he cannot move them. He suffers about 20-40 of these episodes daily. They have been ongoing for some time but he was vague about their initial occurrence. These episodes affect his walking and driving and ability to pick things up. If he is walking or driving he has to stop and wait until the episode is over. If it happens when he is running he usually trips over.” She noted that she observed “at least one episode where his left arm stiffened and he had to keep it moving to stop it freezing up.” She did not purport to give any opinion as to the cause of these symptoms.

Dr Khursandi

  1. [107]
    The defendants’ solicitors arranged for the plaintiff to be examined by Dr Khursandi an orthopaedic surgeon. He provided a report dated 22 June 2020 after assessing the plaintiff on 4 June 2020. He noted that there are no records from the Gold Coast University Hospital which mention complaints of any neck or back pain. His imaging did not reveal any significant radiological evidence of injury. The plaintiff reported “constant pain on the back of the neck which increases with turning his head and also when he maintains the neck in certain postures for long periods of time”. The plaintiff reported to Dr Khursandi “losing control of the left side of his body from time to time and has no sensory symptoms.” 
  2. [108]
    Dr Khursandi noted, in examination of the thoracolumbosacral segment of the spine, he has normal posture and 80 degrees on forward flexion (normal range 90 degrees); extension of 20 degrees (normal range 30 degrees); lateral flexions to the right and left of 20 degrees each (normal range 30 degrees); and rotations to the right and left 20 degrees each (normal range 30 degrees). Light touch of the neck and lumbosacral spine was reported as being extremely tender. Likewise the plaintiff described significant increase of neck and back pain with light compression of the head and increased back pain with light compression of both shoulders. Gentle rotation of the trunk with his arms by his side was reported as also increasing the back pain.[102]
  3. [109]
    He opined:

“Notwithstanding the fact that he demonstrated several inappropriate signs with regard his neck and back symptoms during the examination,[103] the likelihood of some soft tissue injuries of the cervical and lumbar spine sustained during the accident is not ruled out. For all intents and purposes the neck and back injuries have now reached maximum medical improvement. He currently works as a packer in a meat packing factory on a full time basis and treats the neck and back pain with Nurofen and paracetamol.”

  1. [110]
    He opined the plaintiff has “soft tissue injuries of the neck and back with some residual pain and minimal loss of movement of the cervical and lumbar spine.”
  2. [111]
    Dr Khursandi opined:

“taking into account [the plaintiff’s] clinical findings of the cervical spine with symmetrical minimal loss of movement and with reference to the criteria described under DRE Cervical Category I of Table 15-5 page 392 of the American Medical Association Guides to the Evaluation of Permanent Impairment he has 0% whole person impairment. With reference to Figure 18-1 VII b page 574 of the AMA5 he has 1% whole person impairment related to the pain of his neck”.

  1. [112]
    In a note dated 16 June 2021, Dr Khursandi stated, further to his examination on 4 June 2020:

“In the absence of [the plaintiff] reporting any symptoms to a medical provider and/or seeking medical treatment to his neck and back until about three year post-accident (and in the context of reporting and attending for treatment for other medical conditions/symptoms) it is highly unlikely that [the plaintiff] suffered injury to his neck and/or back in the accident. A reasonable person would seek medical treatment in circumstances where they say they have symptoms/pain that is said to be impacting day to day life/function”.

  1. [113]
    He further stated that in his examination the plaintiff had “essentially a full range of movement of his cervical spine and his lumbar spine” which was quite inconsistent with his presentation to Drs Cleaver and Todman.
  2. [114]
    Dr Khursandi agreed in cross-examination that given the mechanism of injury, there was “certainly potential there for a neck and lower back injury” but you would “notice a pain in that part of the body if there was significant injury almost immediately, or otherwise within half an hour or so.”[104] He seemed to add to that as pain “either immediately or within 24 hours”.[105] He agreed that fentanyl, to some extent, would mask some of the neck pain.   He agreed that probably the plaintiff suffered at least a soft tissue injury to his cervical spine.[106]
  3. [115]
    He stated in cross-examination that he gave the plaintiff the “benefit of doubt” for the one percent WPI and that “I didn’t find anything physically much there to be consistent with injury, but his subjective pain was given one percent.”[107]
  4. [116]
    Dr Khursandi agreed in cross-examination that the two CT scans (2017 and 2024) show a straightening of the lordotic curve (in the 2024 scans) which is consistent with muscle spasm or pain.[108] In relation to disc protrusions, he accepted that may not be visible on X ray weeks or months after the accident but raised that it may happen gradually as well from degeneration which, whilst not common in a 26 year old man, “can be seen”.[109]

Dr Murphy

  1. [117]
    The defendants’ solicitors arranged for the plaintiff to be examined by Dr Murphy, psychiatrist, on 1 February 2022.  I provide more detail in relation to that examination below under assessment of any psychiatric injury. The plaintiff reported to Dr Murphy that “I go tense. I can still move, I am not in any pain. It is scary sometimes because if I am driving a car- well I haven’t had a crash but if I was carrying a book- well I have not dropped anything because I usually use my good hand.” Dr Murphy, in a note dated 15 April 2024, opined that there is no psychiatric explanation for the reported condition.

Dr Saines

  1. [118]
    The defendants’ solicitors arranged for the plaintiff to be examined by Dr Saines, neurologist, on 19 May 2021. The plaintiff denied any significant neck or lower back symptoms apart from after heavy physical activity. Dr Saines noted that the plaintiff reported to him:

“He intermittently loses control of the left side of the body. His arm flexes and the hand claws. His leg stiffens. He tells me this commenced a couple of months after the accident, it recurs between 10-50 times per day at any time or in any position without obvious provocation. It lasts about 10-20 seconds. He tries to disguise it at work. He tells me he attended the Pines General Practice and was referred to a neurologist but did not keep the appointment.”

  1. [119]
    Dr Saines could not relate the “unusual intermittent left sided limb dysfunction” to the accident and more specifically to a traumatic brain injury. In a note of 15 April 2024, Dr Saines maintained that he could not see any connection between the reported condition and any head injury or brain injury.
  2. [120]
    Dr Saines, in his note of 12 February 2025, opined that there is no lesion or contusion or concussive type insult to the spinal cord. He noted that merely because it appeared after the motor vehicle accident does not mean that the motor vehicle accident was the cause of it. Dr Saines stated that the plaintiff reported to him that the left sided problems were first experienced by him some months after the motor vehicle accident and, in those circumstances, it is not possible to attribute them to the motor vehicle accident. Dr Saines, in commenting on Dr Cochrane’s report dated 25 October 2024, stated:

“as to the comments of the reversal of the usual cervical lordosis, this can be consistent with increased paraspinal muscle tone. This however occurs in an acute situation and unless there is some underlying structural abnormality, it is highly unlikely that if there is a reversal of the usual cervical lordosis (and it is not a postural or oppositional error as Dr Ault refers to in his report) it can be related to any soft tissue injury received in a motor vehicle accident more than seven years before the MRI scan was taken. In relation to the question of whether or not there is anything abnormal shown on the MRI scan, and in particular the anterior horns of grey matter of the cord appear more prominent than the posterior horns, I would defer to the opinion of Dr Ault, an extremely well respected radiologist, in relation to the interpretation of the MRI scan…  If there were radiological signs of an anterior cord contusion then there would have been some clinical neurological sign at the time of injury and none was detected. There is no mention in the Gold Coast University Hospital records of any neurological abnormality; if the insult to the spinal cord was sufficient to be shown on an MRI scan taken seven years later, I would expect to see some atrophy or shrinking of the spinal cord in that section where the abnormality is said to exist. This is not reported by Dr Lu or Dr Ault. The plaintiff is complaining of left-sided abnormalities. The motor nerve fibres that go down the spinal cord to the limbs travel in the lateral aspects of the spinal cord and not near the anterior midline of the cord so any damage to that section would not explain problems with the plaintiff’s arms or legs on the left side.”

  1. [121]
    As to the C5/6 discal abnormality, Dr Saines stated that there is “no way of saying” it was caused by the accident: “Discal abnormality shown radiologically can simply be degenerative or caused by innocuous events.” Further, he stated that transverse myelitis is an inflammatory condition not caused by trauma and if it existed would have nothing to do with the motor vehicle accident. A “spinal cord seizure” is a rare type of tonic motor episode which in his experience usually occurs in people with multiple sclerosis or other substantial spinal pathology with established clinical deficits. In his opinion it is not applicable in the present case, is not caused by trauma and has nothing to do with the motor vehicle accident.
  2. [122]
    In a conference note of 20 March 2025 Dr Saines provided the following opinion, on the assumption that the first mention of any left sided symptomatology in the medical record was on 20 January 2020; after detailing a summary of self-report of the symptoms noted by Ms Jackson, Dr Cleaver, Dr Todman, to himself, and Dr Murphy;  and having reviewed the MRI scan images of the brain, cervical spine, thoracic spine and lumbar spine obtained on 4 June 2024:
    1. Dr Cochrane, himself, Dr Lu, and Dr Ault all agree that the MRI images of the brain do not show any injury. Dr Cochrane does not suggest that the complaints of left sided symptoms are caused by a brain injury. He agrees;
    2. He could not detect the radiological abnormality that Dr Cochrane was referring to (radiological appearance of bilateral abnormality in the anterior horns of the spinal cord in the region of C5/6). On radiological matters he would defer to Dr Ault;
    3. Dr Cochrane does not suggest that the abnormality he observes (some abnormality of the motor nerves which exit the spinal cord through the region of C5/6) is limited to the left side however the plaintiff’s symptoms he complains of are so limited;
    4. The nerves which exit the spinal cord through the anterior horns at C5/6  innervate the muscles of the shoulder girdle and the arm. They do not innervate the muscles of the hand nor the muscles of the leg- as such, if there was damage to the anterior horns at C5/6 in that region it does not explain the plaintiff’s symptomatology said to involve his hand and leg;
    5. Dr Cochrane’s theory is that there is a disc protrusion at C5/6 (which he agrees with) which has at some stage caused the damage to the spinal cord anterior horns at that level (which Dr Cochrane sees on the radiological images but himself, Dr Ault, and Dr Lu do not see):

“If Dr Cochrane’s theory that there has been a disc protrusion caused in the motor vehicle accident which has damaged the anterior horns of the spinal cord at that anatomical level is correct then one would expect there to be complaint of symptomatology in the neck at about the time of the accident. In order to cause damage to the spinal cord the extruding nuclear material of the disc first needs to press on a highly pain sensitive structures and then on the spinal cord”.

  1. Disc protrusion of the plaintiff could also be caused by simple degeneration or some innocuous event (a matter which he notes Dr Cochrane agrees with and that spontaneous disc protrusion is possible);
  2. If however there was a disc protrusion (whether or not pressing on the cord) caused in a traumatic event (such as the motor vehicle accident) it would be by far the usual situation for there to be a complaint of some symptomatology (pain, burning etc) in the area of the protrusion within a short period (ie days). This is especially so if the protrusion were large enough to press against the spinal cord (and thus the structures that lie between the intervertebral disc and the spinal cord) and in that case one would expect complaints of severe pain at that time;
  3. The absence of any complaint of neck pain for over three years after the accident means it is most unlikely that any injury was caused to the C5/6 intervertebral disc or the spinal cord in the accident;
  4. The fluid signal in the disc is not increased;
  5. It is not possible to say when and why the disc protrusion happened;
  6. There is no record of any complaint of cervical or lumbar pain or any complaint consistent with trauma to the cervical spine or the lumbar spine after the accident.
  1. [123]
    Dr Saines in cross-examination maintained his opinion that the left sided symptoms cannot be attributed to the accident.[110] He stated that the clinical context is perhaps more important than the radiological findings or lack of findings – if someone injures their spinal cord they present with “pretty significant symptoms and clinical manifestations”.[111] He stated “whilst I accept the mechanism may occur in injuring a spinal cord with a flexion-extension injury, there’s a clinical correlate to these presentations not just a radiological finding.”[112] He did not accept that the “disc bulge” at C5/C6 is compressing the spinal cord - “this is not a major disc protrusion. It’s not compressing the spinal cord”.[113] He considered it highly unlikely that at some prior point there was pressure on the spinal cord. He said “what I’m saying to you is I can’t see a thing wrong with that spinal cord, and the disc [protrusion] is quite small. There’s no evidence of any pressure. So we’re constructing a kind of a scenario – going back in time, we’re constructing a scenario which was not correlated with any clinical findings. You get a pretty damn sore neck and you get pretty strong neurological signs if you traumatise the cervical spinal cord.”[114] Dr Saines maintained that there was no shrinkage/atrophy of the spinal cord.
  2. [124]
    Dr Saines was asked to look at the 2017 x-ray and he said that there were degenerative changes at the C5/6 level. This was not explored any further in cross-examination or re-examination. He agreed that the lordotic curve appeared straighter in 2024 to 2017 and that muscle guarding or increased muscle tone can cause the straightening of the lordotic curve. He also agreed that pain can cause the straightening of the lordotic curve. He accepted that degeneration in the cervical spine is not a common feature in a person in their early 20’s.[115]

Dr Ault

  1. [125]
    Dr Ault is a radiologist who was engaged by the defendants’ solicitors. In a report dated 8 January 2025, he firstly noted that he was providing the opinion as a specialist radiologist not neurosurgeon. Dr Ault did not purport to answer the question of “having reviewed the MRI, what is the cause of [the plaintiff’s] paroxysmal weakness episodes” instead stating that he will only comment upon the radiological evidence referred to by Dr Cochrane (the CT scan of 27 July 2022 and MRI of spine and brain dated 4 June 2024). In terms of the MRI of the spine he opined that whilst it is possible to interpret the images as showing a reduction in the degree of the usual cervical lordosis the:

“…best examination, from a radiological point of view, in attempting to determine whether there is any reversal of the lordosis of the cervical spine, consistent with increased paraspinal muscle tone or other causes, is an erect lateral plain x-ray image of the cervical spine.[116] The problem with attempting to identify any reversal of lordosis with an MRI scan is that when the scan is acquired, the patient is recumbent (supine) and there is a rigid coil placed around their head and neck that goes over the shoulders. This can force the neck into a degree flexion. So, although there may be an appearance of a flattening of the normal cervical lordosis, in fact it could be the plaintiff’s positioning rather than it reflecting any paraspinal muscle spasm. In other words, the cervical lordosis may be quite normal but simply placed into some flexion by the equipment used to conduct the MRI scan (from a radiologist’s point of view, it is hard to image that more than seven years after the motor vehicle accident that there would still be radiological evidence of a change in the lordotic curve caused by muscle spasm resulting from the motor vehicle accident).”

  1. [126]
    In relation to the scan of the C5/6 level, Dr Ault opined that there is nothing about the radiological images (those where Dr Cochrane thought that the anterior horns of grey matter of the cord appear to be more prominent than the posterior horns compared to other levels of the cord) which would suggest anything other than normality. He did not “consider there is any spinal cord lesion at all, much less a “subtle” one. The appearance of the anterior horns and the posterior horns are well within the range of what would be expected in a case where there was no injury. The images do not demonstrate any concussive or contusion type lesion of the anterior cord around the C5/6 level or otherwise.” Dr Ault disagreed with the interpretation of the scans by Dr Cochrane: “as a specialist radiologist there is no anterior cord change at the C5/6 level (subtle or otherwise).”
  2. [127]
    In a conference note of 18 March 2025, Dr Ault disagreed with Dr Cochrane as follows:
    1. The plaintiff does have almost a complete reduction of lordosis in his cervical spine however the studies imaged his whole spine and his thoracic kyphosis and lumbar lordosis is less than you would normally see as well. This demonstrates that constitutionally the plaintiff has a particularly straight spine and his cervical spine is consistent with that. The fact that when undergoing an MRI scan his cervical lordosis is particularly absent is nothing unusual. It is part of his overall alignment (together with the positioning for the purpose of the scan) rather than any pathology;
    2. There is no indication of trauma to the cord itself. Dr Ault measured the cross-sectional area of the cord at a number of places rather than just the anterior/posterior diameter. Given the presence of the C5/6 protrusion the measurements would be relatively consistent and do not indicate any damage to the spinal cord including the anterior horns. There is no evidence of significant atrophy of the cord. The images are not that clear but there is no difference between the anterior and posterior horns of the cord;
    3. The images of the spinal cord are within normal limits;
    4. There is no fluid signal in the disc but rather signal consistent protrusion of the nucleus of the disc.[117]
    5. There is no intrinsic abnormality of the spinal cord on the MRI.
  3. [128]
    In a conference note of 27 March 2025, Dr Ault opined:
    1. The relatively straight thoracic and lumbar spinal alignment shows the patient has a relatively straight spine. Leaving aside the question of muscle spasm affecting the lordosis there is no reason to think the cervical spine would be different;
    2. Reduction of cervical lordosis from trauma is seen in the acute phases of injury to the cervical spine when the trauma produces muscle spasm which affects the alignment;[118]
    3. Thus assuming a plain x ray demonstrated a reduced cervical lordosis it says nothing about the cause of that; and
    4. Given the alignment of the plaintiff’s thoracic and lumbar spine the most likely reason for the alignment of the cervical spine is that it is his natural condition.
  4. [129]
    In examination in chief, with leave, Dr Ault stated that if the plaintiff had a neck brace on for the 2017 x-ray then it would put the neck into slight extension and would tend to at least maintain a cervical lordosis.[119] He maintained that the plaintiff has a relatively straight spine in the 2024 images and the scans do not show any abnormality of the spinal cord.[120] If there was a spinal cord injury seven years prior, the expectation would be you might see atrophy of the cord, signal changes, signs of haemorrhage into the cord, change in the size of the cord and he doesn’t see those things.[121] He maintained the view that the disc protrusion abnormality at C5/6 does not contact the cord.[122] He maintained the position that the anterior horns are all within normal limits- no enlargement of the horns when compared with the grey matter elsewhere at that level or at other levels.[123]
  5. [130]
    In cross-examination he did not accept that the brightness or prominence or lightness of the anterior horns at the level where image 20 is taken is significantly different than where image 14 is taken on the axial T2 images.[124] Dr Ault measured the intensity of the signal (he then explained this as relative brightness between the various structures) at image 14 as 792, 756, 761, 794  and image 20 at similar areas of the cord as 741, 769, 789, 787. Dr Ault explained that there is no unit associated with the number it is a slightly arbitrary scale of brightness but it allows you to determine whether something is brighter relative to the other. He said that the numbers were “very close between those two images”. He then explained it as when the cursor is hovered over the anterior horns that they can derive a brightness value and those values are not significantly different between the two images.[125] Dr Ault then said, “very similar – my eye says there’s no difference and the measurements that I’m performing on my computer would suggest that there is no difference.”[126]
  6. [131]
    Dr Ault disagreed that the brightness of the anterior horns is consistent with there being some inflammation visible on image 20 on the axial T2 image.[127] He accepted that there was a small disc protrusion at C5/C6.[128] He accepted that the question of whether any contusion or abnormality to those horns would result in the type of symptoms experienced by the plaintiff was a question for a neurologist and accepted that a neurosurgeon is between equipped and better qualified to provide an opinion about what is the cause of the left sided symptoms.[129] He agreed that the plaintiff does have curvature of the spine and the only thing straight is the cervical and upper thoracic.[130] He accepted that he doesn’t have the necessary qualifications to give opinion regarding the cause of the curvature.[131]

Determination

  1. [132]
    I am not prepared to draw an inference, despite submissions to the contrary, that any of the Doctors were biased or partial in a way that diminishes the weight which can be placed on their opinion. However, given the findings I have made in relation to the plaintiff, some of the opinions, as I go on to detail, have little to no weight. Otherwise, I have considered and preferred the opinions of some of the Doctors for reasons I develop. This applies to all of the injuries.
  2. [133]
    For the plaintiff to succeed, he must demonstrate that the hypothesis consistent with a neck injury having been caused by the accident is the more probable one. I am satisfied that he has discharged his onus in that regard.
  3. [134]
    As I have detailed at [27]-[49], I do not generally accept the plaintiff as credible and reliable. I am not prepared to act on his evidence where it is not supported.
  4. [135]
    This is an unusual case.  The plaintiff’s evidence in court was at significant odds with his self-report to some of the experts re the extent and constancy of his ongoing symptoms to his neck and that cannot be explained by the progression or resolution of symptoms.  It is my view that it is clear, even on the plaintiff’s evidence in this court, that he has exaggerated to some of the medical experts the extent and constancy of his ongoing symptoms to his neck (leaving aside the left sided symptoms which I am not satisfied of).
  5. [136]
    Ultimately, I accept part of his evidence in this court (leaving aside the left sided symptoms) in relation to his current symptoms of having “restrictive pain” which can be managed by Panadol or Nurofen; that he has full movement in his neck but flexing his neck, extending his neck and rotation to the left causes pain; and that he if  takes “maybe two Panadols or Nurofen it would drop down to maybe one to none (level of pain)”. I am not satisfied of the description of the pain in the absence of medication, which is of course subjective, given the matters detailed at [27]-[49] including the social media posts. The symptoms that I have accepted are, in my view, sufficiently supported by other evidence as I now turn to.
  6. [137]
    The defendants submit that I would not be satisfied that the plaintiff suffered any injury to the neck in the accident. This includes that I would not accept that the disc protrusion at C5/6 level was caused by the accident and similarly with the loss of lordosis (if there is one). It is submitted that I would reject the theory that the accident caused an asymptomatic tear of the annulus, particularly at C5/6, which later developed such that by 2024 the disc protrusion was apparent as:
    1. such a finding is not consistent with the plaintiff’s failure to ever report relevant symptoms;
    1. the plaintiff is not a witness of credit and his evidence in this court and self-report should not be accepted;
    2. it is not consistent with the plaintiff’s reporting of immediate symptoms;
    3. it is a logical nonsense – it is not an inevitable proposition that the plaintiff must have suffered an annular tear or other spinal injury in the accident;
    4. the expert evidence is such that the C5/C6 disc protrusion could have developed from innocuous or degenerative causes; and
    5. Dr Cleaver agreed that it “may or may not have been caused by the accident” and the “all important consideration” is the clinical history which the patient gives as to the onset of symptomatology.
  1. [138]
    In closing oral submissions, the defendants submitted that if I reject the plaintiff as a witness of credit it is “not open” to find that there may have been a “discal injury at the time” as “if you reject him as a witness of credit it is not open to make a finding that there was some symptoms unreported to anyone but now said to exist, not at a level that he thought necessary to mention to doctors because…if you reject his credit, we simply don’t know what the truth was.”[132]
  2. [139]
    I fully accept, as Dr Saines stated in his note of 12 February 2025, that just because the disc protrusion appeared after the motor vehicle accident does not mean that it is the cause. However, in my view the hypothesis of the discal abnormality by way of a disc protrusion at C5/6 level being caused by the accident is the more probable one. There were other hypotheses put forward at trial namely it could have been an innocuous event or degeneration. However, to my mind, a causal link has been established to the requisite standard.
  3. [140]
    It was universally accepted that there is a disc protrusion at C5/6 shown in the 2024 MRI but not in 2017. I accept the opinions of Dr Ault and Dr Saines that it is a “small disc protrusion” or “not a major disc protrusion”[133] and there is insufficient evidence that it pressed on the spinal cord (see further below in discussion of left sided symptoms). Given the mechanism of injury, I accept the submission of the plaintiff that the location of the disc protrusion is relevant namely that it is at a point where there would have been significant force and flexing in the accident.  Further, I accept the opinions of Dr Cochrane, Dr Todman and Dr Cleaver. On the balance of probabilities, I am satisfied that the plaintiff injured the disc at C5/C6 in the accident by means of an internal disc disruption of a mild to moderate nature.[134] This was not sufficient to be evident radiologically in the 2017 CT scans but developed over time, ultimately allowing the protrusion which was evident in the 2024 scan.
  4. [141]
    I recognise that the evidence established that there were other reasonably possible explanations- an innocuous event or degeneration even in a person of the plaintiff’s age but, as Dr Saines accepted in cross-examination, degeneration in the cervical spine is not a common feature in a person in their early 20’s.[135] Further, I accept the evidence of Dr Cochrane that the fact that there is no degeneration of the thoracic spine on the MRI suggests it is less likely that the disc protrusion is a degenerative condition. 
  5. [142]
    I have taken into account that Dr Cleaver ultimately accepted that “it could be the product of the motor vehicle accident but it could be the product of something else which happened much later” and the “all important consideration” is the clinical history which the patient gives as to the onset of symptomatology and here, I have not accepted the plaintiff as a witness of credit.
  6. [143]
    Further, I have taken into account: Dr Todman and Dr Cochrane accepted, in cross-examination, that if there was “no pain” from the time of accident till three years after then it is less likely the disc protrusion was related to the accident; Dr Cleaver accepted that the internal disc disruption theory can’t be “substantiated” if there was no complaint of symptoms (pain, burning sensation, stiffness) at the time;[136]  and Dr Saines stated that it would be the “far more usual situation for there to be a complaint of symptomatology (pain, burning etc) in the area of the protrusion within a short period (ie days) if there was a disc protrusion whether or not it pressed on the spinal cord”.[137]
  7. [144]
    My finding does not equate to there being “no pain or symptoms” only that no pain or symptoms were reported. No evidence was provided as to the level the pain would be if the protrusion did not press on the spinal cord. Dr Saines went on to state that it would “be especially so if the protrusion were large enough to press against the spinal cord…severe pain at that time”, so inferentially and consistent with the concession of the defendants’ counsel in closing submissions,[138] the symptomatology would be less if the protrusion did not press on the spinal cord.
  8. [145]
    To explain further, it is true on the evidence that there was no pain reported to medical practitioners in the years following the accident and I have not accepted the plaintiff as a witness of credit but, as I’ve detailed, I have found that it was not a large disc protrusion, it didn’t press on the spinal cord and it developed over time. The current symptoms I have found namely full movement and it being “restrictive pain” which can be managed with Nurofen and Panadol, do not make it fatal to causation that I have not generally accepted the plaintiff as a witness of credit including because there was no reporting of pain in the years following the accident. I have not found the symptoms to be as severe as the self-report to the doctors. In any event, as Dr Cochrane opined, which I accept, given his expertise as a neurosurgeon, “quite often people have an asymptomatic annular tear” until it progresses and protrudes.[139]
  9. [146]
    Similarly, I am satisfied that there is a straightening of the lordotic curve and that it occurred as a result of the accident.
  10. [147]
    The defendants’ position is that I firstly would not be satisfied there was any loss of lordosis – there are other explanations including that the plaintiff has a naturally straight spine or that the position of the plaintiff in the imaging was an explanation and, secondly, even if there is a loss of lordosis no causal connection to the accident has been established.
  11. [148]
    Straightening of the lordotic curve is consistent with muscle spasm and pain.[140] Whilst I have taken into account the opinion of Dr Saines and Dr Ault that if there is a reversal of lordosis it is  highly unlikely to be able to be related to the accident seven years prior, I accept the evidence of Dr Cleaver and Dr Cochrane that there was a relatively minor trauma by means of an internal disc disruption which over time developed to a stage where there was a loss of lordosis evident on the 2024 MRI. Dr Cleaver noted that this is “extremely common in clinical practice.”[141]
  12. [149]
    Dr Ault ended up accepting in cross-examination that the only part of the spine that was straight is the cervical and upper thoracic which militates against his theory in his report of the plaintiff having a naturally straight spine. Further, I am not satisfied that it is explained by the imaging. I recognise that rejecting those hypotheses does not mean that the plaintiff has, by that alone, proved its case. However, I am satisfied that the loss of the lordotic curve was caused by the accident.
  13. [150]
    It is my view that the plaintiff suffered an injury to his cervical spine in the accident. Whilst it is true, as the defendants submit, that  an injury to the neck is not an inevitable consequence of the accident, and I have not accepted the plaintiff as a witness of credit, there is supporting evidence that a neck injury occurred in this case: it is consistent with the mechanism of injury; I have found that there is a causally linked discal abnormality by way of a disc protrusion at C5/6 level and loss of lordosis; and the plaintiff experiences neck related symptoms as observed by his girlfriend and his co-workers.[142] As detailed above, my finding is that the extent of this injury is such that it is not constantly present (as per the plaintiff’s evidence in court) and can be managed with Panadol or Nurofen (again per the plaintiff’s evidence in court).
  1. [151]
    I am not prepared to accept that the plaintiff suffers from headaches, given the issues in relation to his credit and there being no supporting evidence. If I am wrong, it would have no impact on the relevant ISV in all the circumstances.
  2. [152]
    In relation to the left sided symptoms, the position of the plaintiff is that he had no such symptoms before the accident but he did have them afterwards. Absent some other traumatic event, which there has not been, it is submitted that the more probable inference is that the defendant’s negligence caused the left sided symptoms.
  3. [153]
    I do not accept, on the balance of probabilities, that the plaintiff is suffering from the “left sided symptoms” as detailed by him. The evidence as to the plaintiff suffering the left sided symptoms is solely his self-report and I am not prepared to accept it given the factors I have detailed above at [27]-[49] regarding the plaintiff’s credibility. It is incongruous that if the plaintiff was suffering the left sided symptoms that he would undertake the activities as demonstrated in the social media posts and would not report them to a general practitioner especially as he attended for far less complaints. Further, and specifically to the “left sided symptoms”, there is a significant inconsistency with the plaintiff variously reporting that it occurs daily to 50 times a day.[143]
  4. [154]
    In determining that the left sided symptoms are based solely on self-report,  I have taken into account that Ms Jackson included in her report that she observed “at least one episode where his left arm stiffened, and he had to keep it moving to stop it freezing up”[144] but that is very different to the left sided symptoms described by the plaintiff in evidence (see at [54]) and to the other experts. What Dr Jackson observed was limited to the left arm. Further, what the plaintiff describes is sudden, uncontrolled movements that occur without warning not one where it can be controlled by “moving to stop it freezing up.” I have also taken into account that Ms Brissett mentioned observing the plaintiff sitting down and rubbing his hand but again that is very different to the left sided symptoms described in evidence and to the other experts.
  5. [155]
    Further, I have taken into account that the theory proposed by Dr Cochrane is in line with where the disc protrusion is. However, as detailed below, I do not agree with the plaintiff’s submission that Dr Cochrane has provided expert evidence that objectively supports the presence of the left sided symptoms.
  6. [156]
    Even if I am wrong and the plaintiff does suffer the left sided symptoms, or something less as seen by Ms Jackson and possibly Ms Morante, I am not satisfied on the balance of probabilities that they were caused by the accident. Prior to the MRI in June 2024, no expert provided an opinion, other than postulating possibilities, as to the cause of the left sided symptoms. Dr Cochrane expressly stated in his first report that the cause was unknown and ruled out a spinal injury cause. It was only following an MRI in June 2024, and very recently prior to the trial, the availability of the CT scan of the plaintiff taken on the day of the accident, that Dr Cochrane and Dr Todman attributed the left sided symptoms to a cervical spine injury occasioned in the accident.
  7. [157]
    Much time was taken up at trial with medical opinion related to the left sided symptoms. Dr Cochrane’s opinion is that the most likely scenario is that at some point in time there was a protrusion at C5/6 which pressed on the spinal cord and caused damage to the motor nerves in the anterior horns. Dr Cochrane is the only expert who sees the “prominence” of the anterior horns in the MRI. Dr Ault, an expert radiologist, does not and neither did Di Lu (whose radiology report was tendered by consent). In evidence in this court, Dr Ault provided data in relation to the brightness of the anterior horns at C5/6 level and at a higher level in the spine and there was neither to his eye nor on the data any significant difference. There is, therefore, despite Dr Cochrane’s expertise, good reason to doubt that there is any difference in the “prominence” of the anterior horns at C5/C6 in comparison to other levels of the spine. However, to my mind, I do not need to make a determination as to which expert I accept on this issue or whether, as the plaintiff submits,[145] I should disregard the evidence of Dr Ault re the data in relation to the brightness. Even if I accepted Dr Cochrane’s evidence that he is seeing something that no one else can see (including a specialist radiologist), I am not satisfied that what he observes is an explanation for the left sided symptoms let alone that they are caused by the accident.
  8. [158]
    Dr Cochrane accepted that one of the reasons he came to the view in his first report that the left sided symptoms were unlikely to be a spinal cord injury was because there were no right sided symptoms. Dr Cochrane accepted in evidence (which is also the evidence of Dr Saines) that if he is correct that the MRI shows damage to the anterior horns bilaterally he “would expect it more likely that there would be bilateral symptoms. They don’t necessarily need to be symmetrical but yes, it would be more likely.”[146]  I accept that in re-examination Dr Cochrane did state that the fact that it’s more likely you would expect bilateral symptoms does not extinguish the possibility of unilateral symptoms as “if there was asymmetric compression of the spinal cord, the injury threshold may have been more substantial on one side than the other, leading to, for example, symptoms developing on one side and not the other”[147] however given his evidence (and that of Dr Saines re this issue) I am not satisfied that any damage to the anterior horns seen by Dr Cochrane explains the  left sided symptoms.
  9. [159]
    Further, the plaintiff stated in his evidence that the left sided symptoms commenced at least two months after the accident; to Ms Jackson he was “vague about their initial occurrence.” Dr Cochrane did not dispute Dr Saines’ opinion[148] that the fact that the episodes purportedly commenced some two months after the accident meant that it is not possible to attribute them to the motor vehicle accident.
  10. [160]
    There are other reasons to doubt Dr Cochrane’s opinion as to the left sided symptoms being caused by the theory opined by him including, as Dr Saines states,[149] if there was damage to the anterior horns at C5/6 it does not explain the plaintiff’s symptomatology said to involve his hand and legs and no one else sees any damage to the spinal cord.
  11. [161]
    The plaintiff seems to contend that if I am not satisfied that the left sided symptoms are caused as per the theory of Dr Cochrane that I should nonetheless find to the requisite standard that they are causally linked to the accident as there is no evidence of any other trauma. The plaintiff raises the symptoms being claimed within “mental disorder if an organic origin is not found.”[150] However, Dr Murphy expressly excludes the left sided symptoms having a mental health cause and it would be complete speculation to attribute them to the accident.
  12. [162]
    In terms of assessment of the injury to the neck, I do not accept that the impairment is as per that opined by Dr Cleaver, Dr Todman, or Dr Cochrane. The doctors based their assessment on an injury more severe than I have found it to be. Given that I have found the objective signs of the disc protrusion and straightening of the lordotic curve, both parties accept that it would be a DRE category 2 injury with WPI of 5-8%.[151]

Whether the plaintiff suffered an injury to his lumbar spine and if so, what is the nature and extent of any such injury.

Plaintiff’s evidence

  1. [163]
    The plaintiff gave evidence that one of the “worst pains that he felt” was to his lower spine.[152] The plaintiff explained that the pain occurs if he is to move in a certain way.[153] He indicated that he has pain when he moves to the right and left but he still has full movement.[154] Without medication, the pain is currently a “seven/eight” but with “two or three Nurofens or Panadol” it is “two to zero”.[155]  He explained that the first time he felt the pain was when he tried to stand up maybe a week after he returned home. He stood up from the toilet and had to sit back down as it felt like someone “jab[bed] a knife in [his] back”.[156] The plaintiff indicated that he had consistently lower back pain since.[157] He explained there was an occasion in 2018 when he was shovelling meat that he had back pain; and an occasion where he was lifting a 6 pack of 1.5 litres of water and he felt “a horrible pain…my lower back”.[158] He explained that he “dropped the ice cream on the ground” (there was no explanation of why he was, at one moment, lifting water and then dropped ice cream on the ground but I proceed on the basis that he was mistaken at one point during the narrative as to what he was carrying) and then explained he was in “a lot of pain”.[159]

Marley Dugard

  1. [164]
    Master Dugard is 16 years of age and works at the IGA with the plaintiff. He gave evidence that the plaintiff has asked for assistance lifting heavy objects such as pallets or boxes of drink and cleaning the store. He explained, in relation to the pallets, that the plaintiff struggled to lift but not consistently. He has observed that sometimes the plaintiff stretches his back or holds his back and one or two occasions per week he would sit down and rest because of back pain.[160]

Charmaine Brissett

  1. [165]
    Ms Brissett has observed the plaintiff moving to stretch his back side to side and has seen him rubbing his back.

Apple Morante

  1. [166]
    Ms Morante has seen the plaintiff touching his lower back; it is hard for him to stand up and he needs her to help him do things for him. He takes Nurofen or Panadol but she doesn’t know how often he takes it.

Dr Cleaver

  1. [167]
    In his first report, the plaintiff reported lower back pain in the midline with constant pain but made worse with mechanical activities- up to 7-8/10 on the Visual Analogue score. He further reported that most nights he will wake up with lower back pain. He usually gets up and walks around and has a cigarette. Sometimes he cannot get back to sleep. He can still run but with pain and suffering.
  2. [168]
    Dr Cleaver opined as follows:

“Lumbar Spine: [the plaintiff] was tender in the midline. Palpation of L4-5 and L5-S1 even lightly caused involuntary guarding of the paraspinal musculature. He demonstrated the ability to flex his lumbar spine, but did demonstrate reversal of rhythm getting back up into extension, which is indicative of derangement at the base of the spine”.

  1. [169]
    He diagnosed a probable discal injury lumbar spine. He assessed 56% on Oswestry Lower-Back Questionnaire.
  2. [170]
    He opined:

“Using Table 15-3 on page 384 of the Guides, [the plaintiff] would satisfy the criteria for Lumbar DRE Category II. This is as a result of him having involuntary muscle guarding on palpation of the painful region, in association with an accident that can cause this clinical spectrum of symptoms and signs. This DRE category is associated with a range of impairment of 5-8%, and I am awarding him 8% of the available range.

  1. [171]
    In the second report, Dr Cleaver noted that the plaintiff reported constant pain in the lower back. In the lumbar region, it was noted that “[the plaintiff] was able to flex such that his hands could get to distal shin. There was moderate reversal of rhythm alighting back up in extension. In terms of lateral bending, to the right side lateral bending was good and all occurred fluidly throughout the lumbar spine but left sided flexion all occurred at the thoracolumbar junction and was painful.” A diagnosis was made of soft tissue injury, cervical spine and musculoligamentous sprain, lumbar spine. He assessed 46% on Oswestry Lower Back Disability Questionnaire. His assessment of WPI remained relatively unchanged (decrease to 7% from 8% for Lumbar DRE Category II).
  2. [172]
    In evidence, Dr Cleaver was asked, “is it more probable than not that he suffered soft tissue injuries to the lumbar spine in the car accident?” He responded “on the basis that he informed me that he had pain from his spine after the accident and on the basis of an abnormal lumbar examination, that was my inference. And in my second report, under the diagnoses, I have put a “muscular ligamentous sprain lumbar spine” as the second diagnosis which is another way of saying a soft tissue injury.”[161]

Dr Todman

  1. [173]
    In his first report, Dr Todman noted on examination: “In the lumbar spine there was tenderness in paravertebral muscles and reduced forward flexion by 40 degrees and lateral flexion by 30 degrees on each side.” He opined that there was a “chronic musculo-ligamentous strain to both regions”. In relation to the lumbar spine, he opined it was a six percent WPI (total of 12 percent with cervical spine) which is the “lower part of the range of five to eight percent…”.

Dr Cochrane

  1. [174]
    The plaintiff reported “…escalating low back pain and thoracic back pain in particular, perhaps a few days after the injury, and after a week or so this seemed to involve his neck as well. Spinal pain symptoms have persisted. He has needed intermittent Panadol and Nurofen from the time of the accident for spinal pain”. The plaintiff reported that his “spinal pain is getting worse and is now struggling to manage with his escalating pain.” He further stated the plaintiff reported “lumbar back pain. He describes mid-lumbar to lumbosacral or low sacral pain as he describes in the midline. This is rated 8/10 in severity on the VAS and nearly [constant] and worse with bending or lifting activities.”
  2. [175]
    Dr Cochrane on assessment noted that “…assessment of the lumbar spine was associated with right flank pain with left-sided movements and ‘sharp’ left paramedian lumbosacral pain with right-sided movements. Lumbar flexion was three-quarters of expected range and extension to two-thirds of expected range. Lateral flexion at the waist was full in range bilaterally. Rotation at the waist was three-quarters of expected range bilaterally.” Further, “there was midline mid to low lumbar tenderness to include the QL muscle, without spasm…”.
  3. [176]
    Dr Cochrane opined that the plaintiff has “persistent asymmetrically restricted movements of the cervical and lumbar spine consistent with chronic pain from soft tissue injury…the symptoms are entirely stable, and I believe, highly unlikely to resolve from this point. The prognosis is poor for any improvement or resolution of the symptoms, in my opinion.”
  4. [177]
    Dr Cochrane assessed the lumbar spine injury with a 5 percent WPI:

“[the plaintiff] has suffered a musculoligamentous injury to the lumbar spine and continues to demonstrate asymmetry/restricted lumbar movements. It is my determination [the plaintiff] fulfills the diagnosis criteria of having sustained a DRE Lumbar Category II impairment under AMA5 Table 15-24. This affords a 5% impairment of the whole person.”

  1. [178]
    Dr Cochrane in his first supplementary report, opined that “at the very least, there is radiological evidence of persisting increased paraspinal muscle tone consistent with injury to the cervical spine and the lumbar spine in addition.”
  2. [179]
    Dr Cochrane commented that the changes in the “pelvis and sacroiliac joints are, in my view, related to the subject accident given your client continues to complain of lumbosacral low back pain, and this may represent a traumatic finding.”. He could not say that it is more probable or likely that the subject cycling accident was the cause of degenerative change and small posterior central disc protrusion seen at L5/S1.
  3. [180]
    In cross-examination, Dr Cochrane accepted that the incident described in the GP records of “shovelling meat” in the manner described is something that can certainly cause disc problems in the lower back. He accepted that given  the GP records note, very shortly after, that he was found to have full and free and painless range of motion of his lumbar spine that an inference can be made that “there was no significant muscular related pain and restriction at that time.”[162]
  4. [181]
    Dr Cochrane, in re-examination, said that from what he knew of the motor vehicle accident and the little of the specific details of the shovelling that that it would be “far more likely that a moderate speed motor vehicle accident would cause a discal injury.”[163]

Dr Khursandi

  1. [182]
    The plaintiff reported to Dr Khursandi that “he has constant pain [in] the lower lumbar region of [the] back. Bending and lifting and also turning to left or right as well as prolonged sitting or standing can increase the pain. There is no radiation of pain to his lower extremities. He treats the neck and back pain with Nurofen tablets for each daily”.[164]
  2. [183]
    Dr Khursandi opined:

“Taking into account [the plaintiff’s] clinical findings of the lumbosacral spine and with reference to the criteria described under DRE Lumbar Category 1 Table 15-3 page 384 of the American Medical Association Guides to the Evaluation of Permanent Impairment he has 0% impairment related to the soft tissue injury of the lumbar spine. The ongoing pain in the lumbar spine has resulted in 1% whole person impairment according to the criteria described in Figure 18-1 VIIb page 574 of the American Medical Association Guides to the Evaluation of Permanent Impairment”.[165]

  1. [184]
    In a note dated 17 April 2024, Dr Khursandi disagreed with Dr Cleaver that there were indications of derangement at the base of the spine and stated that there is nothing that would so indicate and all radiological studies have been normal. Dr Khursandi noted that when examined by Dr Cleaver on 20 March 2020, the plaintiff exhibited full flexion and extension of his lumbar spine. When he was examined by Dr Todman about a month later, his forward lumbar flexion was reduced by about 40 degrees (about half of the normal range). When examined by him, two months later, he had full forward flexion (same as Dr Cleaver). Dr Khursandi noted that there is no medical explanation for the discrepancies. Further, in his examination, the plaintiff had “essentially a full range of movement of his cervical spine and his lumbar spine” which was quite inconsistent with his presentation to Drs Cleaver and Todman.
  2. [185]
    Dr Khursandi accepted in cross-examination that it is probable given the mechanism of injury as outlined in the medical and hospital records that the plaintiff suffered soft tissue injuries to his back.[166]

Dr Saines

  1. [186]
    The plaintiff denied any significant neck or lower back symptoms apart from after heavy physical activity. Dr Saines opined that the cervical and thoracolumbar spine appeared normal. Straight leg raising was fully bilaterally.
  2. [187]
    In a conference note dated 12 February 2025 Dr Saines disagreed with Dr Todman re the cause of the disc protrusion at L5/S1 stating that if there were a protrusion caused in the accident one would expect some complaint of pain or other symptomatology at about the time of the protrusion.

Determination

  1. [188]
    Similar to my findings in relation to the cervical spine injury and as I have detailed at [27]-[49], I do not generally accept the plaintiff as credible and reliable. I am not prepared to act on his evidence where it is not supported.
  2. [189]
    I accept that the plaintiff suffered a soft tissue injury to his lumbar spine in the accident as that is consistent with the mechanism of injury and the plaintiff continues to experience lower back symptoms as observed by his girlfriend and co-workers. I have taken into account that the plaintiff complained in 2018 of back pain after shovelling meat however, to my mind, the more probable cause of the symptoms observed is the accident.
  3. [190]
    It is my view that the defendant has exaggerated to some of the medical experts and, a lesser extent, this court the extent and constancy of his ongoing symptoms to his lumbar spine. The plaintiff’s evidence in this court was different to his self-report to some of the experts.
  4. [191]
    I do not accept that the disc protrusion in the lumbar spine is causally connected to the accident as it is against the weight of the medical evidence.
  5. [192]
    I am prepared to accept the plaintiff’s evidence in this court, as it is supported by what is observed by his girlfriend and co-workers, that he has pain when he moves to the right and left but he still has full movement and the pain is managed with Nurofen and Panadol with the pain reducing to “two to zero”.  I do not accept the plaintiff’s evidence as to the severity of the pain in the absence of medication, given the issues in relation to his credibility.
  6. [193]
    I accept the opinion of Dr Khorsandi that the ongoing pain in the lumbar spine has resulted in 1% WPI according to the criteria described in Figure 18-1 VIIb page 574 of the American Medical Association Guides to the Evaluation of Permanent Impairment. I do not agree with the assessments of Dr Cleaver, Dr Todman and Dr Cochrane as they are based on self-report and examinations of restricted range of movement which I do not accept.

Whether the plaintiff suffered an injury of a psychiatric nature

Plaintiff’s evidence

  1. [194]
    The plaintiff gave evidence that his mental health has suffered after the accident. He said “I feel trapped, it kind of crushed me… time there where I was so depressed and still times where I think about my life, about my capabilities. Especially being a man, I also had high hopes for myself in regards to being able to…work…I just wish that I didn’t have all this pain…there was times there where I was so depressed. I was suicidal…”.[167]

Ms Jackson

  1. [195]
    Ms Jackson, Clinical Neuropsychologist, provided a report dated 8 March 2020 following her assessment of the plaintiff on 13 February 2020. No hospital records were provided to her. Ms Jackson opined that “his current status psychologically would support a diagnosis of an adjustment disorder with mixed anxiety and depression, with stressors resulting from physical complaint and loss of physical functioning and loss of control in terms of management of such.” She opined it was moderate in severity but likely increasing over time given what he reports as ongoing and unresolved complaint. Ms Jackson went on to opine:

“in terms of his adjustment condition, I believe that prognosis for recovery will largely depend on [the plaintiff’s] recovery of physical functioning; this will be guided by assessment and diagnosis of his condition and appropriate treatment/management for what is diagnosed. I suspect that his prognosis for recovery of his mood complaint will largely depend on improvement in physical function and reduction of pain. His youth and self reported nil significant psychiatric history with minimal compensatory substance usage would suggest a reasonable recovery.”

  1. [196]
    Ms Jackson gave him a post-injury PIRS rating of 5 percent.

Dr Murphy

  1. [197]
    Dr Murphy is a consultant forensic psychiatrist who examined the plaintiff on 1 February 2022. In respect of Ms Jackson’s report, he noted that the plaintiff was administered a “battery of neuropsychological assessments to assess cognitive dysfunction…” and there was no indication that the plaintiff was feigning symptoms. Dr Murphy assessed the plaintiff as an “open, unguarded and credible historian.” Dr Murphy did not consider the plaintiff to require any psychiatric or psychological treatment and considered his mental health to be stable and stationary. Dr Murphy referred to the suggested diagnosis of adjustment disorder by Ms Jackson in March 2020 and noted:

“In the meantime, [the plaintiff’s] mental health improved spontaneously. He never required any formal treatment for his anxiety. He continues to have anxiety under specific situations (eg he has never ridden a bicycle again and feels anxious about his brother’s driving) but his symptoms no longer meet the full DSM-5 criteria for any mental disorder. Because [the plaintiff] has no psychiatric diagnosis, I am unable to provide you with a PIRS rating. His psychiatric WPI is 0%. He does not require any treatment. He does not have any occupational incapacity. He is working full time, coping well and hoping for a promotion.”

  1. [198]
    Dr Murphy further stated:

“Dr Jackson speculated [the plaintiff] might have had an adjustment disorder at the time of her assessment in March 2020 (Dr Jackson is a psychologist and therefore could not confirm a diagnosis). On today’s examination, [the plaintiff’s] symptoms no longer meet the full DSM-5 criteria for any mental disorder.”

  1. [199]
    Dr Murphy accepted in cross-examination that if the plaintiff has been in pain for a long period of time he will at some point need some help for his mental health.[168]

Determination

  1. [200]
    The plaintiff contends that Ms Jackson’s diagnosis of an adjustment disorder with mixed anxiety and depressed mood is unchallenged. Dr Murphy did not disagree with the diagnosis so it should be taken as having been proven.
  2. [201]
    The defendants’ position is that there is no reason not to accept Dr Murphy’s assessment that by the time he saw the plaintiff there was no psychiatric impairment to the plaintiff.
  3. [202]
    Both the plaintiff’s position and that of the defendants is correct in my view and consistent with the evidence. That is, at the time of assessment by Ms Jackson in 2020 he met the criteria for an adjustment disorder but by the time of assessment by Dr Murphy in February 2022 he no longer met the full criteria for any mental disorder.
  4. [203]
    Whilst the plaintiff gave evidence which seems to include that his mental health continues to be affected, there was no evidence that he has sought any mental health treatment. Recognising that mental health is a fluid position, but also noting that I do not generally accept the plaintiff’s evidence unless it is supported, it is most likely that the position remains as per Dr Murphy’s assessment in 2022[169] but I accept the concession by Dr Murphy that if the plaintiff has been in pain for a long period of time he will at some point need some help for his mental health.
  5. [204]
    In terms of assessment, as at 2020 I accept that Ms Jackson gave him a post-injury PIRS rating of 5 percent but that by 2022 he no longer met the full criteria for an adjustment disorder. There was no evidence that he received any mental health treatment in the interim.

The nature and extent of the injuries to the left and right knees

  1. [205]
    The plaintiff presented to the Gold Coast Emergency Department with abrasions of the right elbow, right axilla, lateral aspect of the right leg and left knee. The discharge letter describes multiple abrasions including to the right thoracic part of the axilla, right leg and left knee which were treated with dressing.

Evidence of the plaintiff

  1. [206]
    The plaintiff gave evidence that when he walks for above a period of 30-40 minutes he feels a “sharp pain in between my knees…both my knees.”[170]

Dr Cleaver

  1. [207]
    In his first report, the plaintiff reported that his “knees hurt. His left knee hurts more than his right knee. The left knee is constantly sore whereas the right is intermittently sore.” Dr Cochrane assessed his knees as 160 flexion in his right and 120 in his left with zero extension. He opined “the knees were stable. There was no laxity in the collateral or cruciate ligaments. There was no swelling. Clarke’s test was positive on the left hand side in comparison to the right, which was normal. There was very mild patellofemoral crepitus on the left hand side in comparison to the right where there was none.”
  2. [208]
    He diagnosed chondromalacia patella on the left knee; soft tissue injury to the right knee. He opined:

“Table 17-31 on page 55 of the guides allows for a 2% whole person impairment when there are clinical signs of patellofemoral chondromalacia in association with a probable diagnosis.”

  1. [209]
    In the second report, there is no mention of any diagnosis relevant to the knee(s) and it was noted, “in terms of the remainder of [the plaintiff’s] appendicular skeleton…knees… demonstrated symmetry of movement which was full and painless and fluid.’

Dr Cochrane

  1. [210]
    The plaintiff reported “he also has persisting knee pain and ankle pain bilaterally but worse on the left hand side from the time of the accident. After the bruising and soft tissue pain subsided, pain around the joint (knees and ankles in particular) became more apparent and has not settled.” He further stated the plaintiff reported pain “focussed mainly at the joints of the knees and ankles on both sides, bilaterally, but generally worse on the left hand side. He describes this as a “sharp and grinding” feeling in the joints, also present when he is sitting. It is however worse with activity.”

Dr Khursandi

  1. [211]
    Dr Khursandi noted that examination of both knees revealed normal range of movement. He opined that the abrasions have healed with no residual symptoms.

Dr Saines

  1. [212]
    Dr Saines noted a superficial abrasion over the right knee.

Determination

  1. [213]
    It is accepted that the plaintiff suffered an injury to the left and right knees in the form of abrasions. The plaintiff claims to have suffered more severe injuries to his left and right knees namely soft tissue injuries to his left and right knee.[171] It is my view that the plaintiff has exaggerated to some of the medical experts, and to this court, the injuries to his knees.
  2. [214]
    The plaintiff’s evidence in this court was different from his self-report to some of the experts. He stated in court that he experiences pain in his knees when he walks for above a period of 30-40 minutes. To Dr Cleaver he reported that his knees hurt – his left knee is constantly sore whereas his right is intermittently sore. To Dr Cochrane he reported issues with his knees including when he is sitting.
  3. [215]
    I do not accept the plaintiff as a witness of credit and there is no supporting evidence that he continues to experience pain to his knees. I do not accept that the plaintiff suffers any ongoing pain in his knees.
  4. [216]
    In my view, the plaintiff suffered abrasions in the accident which have healed with no ongoing effect. I find, as per the defendants’ submission that the plaintiff probably suffered a minor injury to the knees in the accident but there is no evidence to support any significant ongoing problem.[172]

The nature and extent of the injuries to the head

  1. [217]
    Other than detailing the mechanism of injury, the plaintiff gave no evidence on this issue nor did any other of the lay witnesses.

Dr Todman

  1. [218]
    Dr Todman stated that the plaintiff suffered a closed head injury in the accident with loss of consciousness and it is “quite likely” he had concussion. At the time of the first report, Dr Todman did not have the hospital records.
  2. [219]
    In Dr Todman’s second report dated 12 March 2025, he stated that in his first report he diagnosed a “mild traumatic brain injury…”. Dr Todman noted that the normal MRI brain scan of 4 June 2024 does not exclude a mild traumatic brain injury. Dr Todman stated he agreed with Ms Jackson that the plaintiff had a concussion from the head injury with loss of consciousness and the impairment rating with PIRS methodology.

Ms Jackson

  1. [220]
    Ms Jackson opined that there are no reports of clinical indicators that would suggest the likelihood of head trauma with resulting cognitive impairment. She stated that:

“his cognitive profile on assessment has revealed some inconsistencies and abnormalities;  however as noted above, I believe that the abnormalities within his intellectual profile could be more likely explained by premorbid strengths and weaknesses and the inconsistencies in his information processing speed and capacity could be largely explained by psychological factors. [The plaintiff’s] memory and executive skills were reasonable and consistent with his intellect and as such, do not suggest any lasting and residual impairment associated with what may have been a mild initial concussion…”.

  1. [221]
    Ms Jackson opined:

“[the plaintiff] is now approximately three years post-accident. He may have experienced a degree of mild concussion resulting from any head knock; however any residual effects would be negligible at this point in time. Certainly his neuropsychological profile does not suggest any lasting effects of significant head trauma.”

Dr Cochrane

  1. [222]
    Dr Cochrane opined that the plaintiff “suffered a mild traumatic brain injury with confirmed, witnessed loss of consciousness which would be consistent with the mechanism of injury, and noting first GCS at scene of 12/15 by paramedics trained to perform such assessments later recovering neurological functions. Normal CT of the brain at Gold Coast University Hospital does not exclude a concussive injury, or, for example, mild diffuse axonal injury to the brain…[recommends MRI of the brain and spine].”
  2. [223]
    Dr Cochrane assessed the plaintiff using the Clinical Dementia Rating Methodology of AMA5-Table 13-5 and 13-6. Dr Cochrane assessed:

“with respect to traumatic brain injury, it is my assessment [the plaintiff] has a “questionable” or 0.5 rating for Memory, Orientation and “mild” 1.0 rating for judgment and problem solving, and a 0.5 rating for Community Affairs, for Home and Hobbies (with respect to brain injury as opposed to physical or spinal pain), and 0.5 rating for Personal Care. This results in a median rating of 0.5 which is equivalent to a Class 1 impairment per Table 13-6. Class 1 impairment affords a 1%-14% impairment of whole person. I would suggest [the plaintiff] would fit the midpoint of this range with respect to the effects of organic brain injury, and I determine a 7% impairment of whole person.”

  1. [224]
    The MRI of the brain was opined by Dr Lu to be “normal MRI head.”
  2. [225]
    Dr Cochrane accepted in cross-examination that it is important in assessment of the severity of a head injury to consider whether there was a period of post-traumatic amnesia. Further, that in this case, this wasn’t assessed at the time of the plaintiff’s injury.[173] Dr Cochrane accepted that the assessment of the plaintiff having a seven percent impairment because of the brain injury is dependent on the plaintiff being truthful with him.[174]

Dr Saines

  1. [226]
    Dr Saines noted that the plaintiff’s neurologic assessment at the hospital was normal as was the CT scan. There were no abnormal neurological findings. He stated that the plaintiff suffered a closed head injury in the accident- recovered to a Glasgow coma score of 15/15 at the scene and there was no neurologic abnormality at the hospital emergency centre. He opined the plaintiff suffered a “minor closed head injury with full recovery.” The WPI is 0%.
  2. [227]
    Dr Saines, in a conference note dated 12 February 2025, provided his opinion as to Dr Cochrane’s report dated 31 May 2024. He stated that the plaintiff may have sustained a concussion in the accident but the fact that he did so does not  mean he has suffered a permanent brain injury. Dr Saines noted that Dr Cochrane seems to base this diagnosis on the plaintiff being slow to respond to questioning which does, not of itself, indicate any permanent brain injury. Dr Saines referred to parts of Ms Jackson’s report and concluded that Ms Jackson’s testing is inconsistent with the plaintiff having a brain injury (which was also the conclusion of Ms Jackson). Dr Saines noted that her testing is a “much more accurate basis for any diagnosis than Dr Cochrane’s impression that the plaintiff was slow to answer. That was observed by Ms Jackson but consistently with her testing she, in my view, correctly did not attribute that to any brain injury.”
  3. [228]
    Dr Saines accepted in cross-examination that the plaintiff had a head injury and a brain injury of mild concussion. He was cross-examined about his opinion that the plaintiff has a 0% WPI. He was taken to the AMA5, table 13.5 and the Doctor maintained his opinion.

Dr Khursandi

  1. [229]
    Dr Khursandi agreed that it was highly probable that the plaintiff suffered a head injury.[175]

Determination

  1. [230]
    The plaintiff contends that Dr Cochrane’s assessment should be preferred to that of Dr Saines because Dr Saines assessment of 0% WPI would only be correct if there was no memory loss or forgetfulness. The difficulty for the plaintiff is that he gave no evidence of memory loss or forgetfulness. Neither did any of the other lay witnesses. In any event, I do not accept that the head injury is to the extent opined by Dr Cochrane who accepted in cross-examination that it was based on self-report and, for the reasons detailed at [27]-[49], I do not accept that the plaintiff is a credible witness.
  2. [231]
    I am of the view that the plaintiff suffered a minor head injury (not causing any brain injury) in the accident consistent with the opinions of Dr Saines and Ms Jackson. It has no ongoing effect.

General damages

  1. [232]
    The defendants admit liability for the collision (with 25 percent contributory negligence by the plaintiff). Therefore, the plaintiff is entitled to damages calculated in accordance with ss 61 and 62 of the Act and Part 2 of the Regulation.
  2. [233]
    As detailed above, in my view, the plaintiff’s injuries were:
    1. injuries to the left and right knees in the form of abrasions;
    2. an injury of a psychiatric nature;
    3. a minor head injury;
    4. an injury to the neck; and
    5. an injury to the lumbar spine.
  3. [234]
    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:

“[20] This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range (“the maximum dominant ISV”) adequately reflects the adverse impact of all the injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected. In arriving at an appropriate ISV the court needs to bear in mind that the effects of multiple injuries commonly overlap.

[21] Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards, sight must not be lost of the overriding purpose of the ISVs prescribed – to reflect the level of adverse impact of the injury on the injured person.

[22] The court is required to have regard to the guidance provided by the provisions in Schedule 4 concerning its use in so far as they are relevant to the particular case but is not necessarily limited to those factors: Sch 3 s. 8.

[23] Additionally, in assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case: Sch 3 s 9. The examples provided of other matters are the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life. 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 can be considered.

[24] The extent of whole person impairment is an important consideration “but not the only consideration affecting the assessment of an ISV”: Sch 3 s 10. The dictionary defines “whole person impairment” (“WPI”) in relation to an injury as an estimate “… expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured person’s overall ability to perform activities of daily living other than employment (footnotes omitted).”

  1. [235]
    Section 9 of the Regulation 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.
  2. [236]
    The plaintiff has claimed an ISV of 15. In closing written submissions for the plaintiff, it was noted that the Court is not required to limit itself given the unliquidated nature of damages and ultimately submitted for an ISV of 25 in the sum of $50,100.00.
  3. [237]
    The plaintiff’s closing written submissions contain the following contentions:
    1. Head/brain injury – should be assessed as an item 8, as item 9 seems to be limited to concussive symptoms persisting for less than 6 months. The ISV range is 6 to 20;
    2. Neck injury – should be assessed as item 87 if hemiplegia is accepted or item 88 if all that is accepted is a soft tissue injury to the cervical spine without damage to nerve of any degree. Item 87 produces an ISV range of 5 to 15 whereas item 88 produces a range of 5 to 10. Reversal of the lordotic curve and disc protrusion is an objective finding and, as such, no less than item 88 is required.
    3. Knees – each should be assessed within item 140 (minor knee injury) with an ISV range of 0 to 5.
    4. Lower back injury – should be assessed as item 93- it is appropriate as the injury will cause moderate permanent impairment for which there is objective evidence namely the disc protrusion. The ISV range is 5-10.
    5. Mental disorder – should be assessed as item 12. The ISV range is 2-10.
  4. [238]
    The plaintiff submits that the left sided symptoms do not qualify him for a separate assessment as his episodes have not resulted in a separate WPI assessment. Instead, the plaintiff submits that the symptoms are claimed within the cervical spine injury or a mental disorder if an organic origin is not found.
  5. [239]
    The plaintiff’s submissions on general damages are concluded with the following: “given the multiplicity of injuries to various body systems; the plaintiff contends for an assessment at the top of the range for the dominant injury (Item 8 – minor brain injury) plus 25% uplift which produces an ISV of 25. An ISV of 25 equates to $50,100.00.”[176]
  6. [240]
    The defendants submit, as per their closing written submissions, that the plaintiff has suffered a minor head injury and other minor injuries which have resolved. The dominant injury is the head injury which is covered by item 9. It is submitted that item 9 is appropriate as it is unclear how long the effects of the head injury lasted but given the lack of reporting, the conclusion to be drawn is that it was less than six months and given the evidence of Ms Jackson there is little, if any, ongoing effect. It is appropriate for an ISV in the middle of the range as this also provides adequate compensation for the abrasions and other minor injuries which have resolved. At the time, an ISV of 3 translated to an allowance for general damages of $4,320.00.
  7. [241]
    In my view, the dominant injury is the injury to the neck. It is item 88 under the Civil Liability Regulation injury category list as there is the objective findings of the reversal of lordosis and disc protrusion. Item 88 has an ISV range of 5 to 10. I consider that, on its own, it is a moderate injury at the lower end of the ISV range given the limited nature of the ongoing symptoms and that no time has been lost in employment because of the injury although I recognise that aggravation could occur and the plaintiff is comparably young.
  8. [242]
    In terms of the psychiatric injury, if it was being assessed on its own, it would fall within category 12 which has an ISV range of 2 to 10 as it had a PIRS rating in 2020 of 5 percent. However, it is relevant that Dr Murphy assessed the plaintiff in 2022 and the plaintiff no longer met the full criteria for adjustment disorder. I would have allowed an ISV of 2-3 if it was being assessed on its own given Dr Murphy’s evidence and that it fell within close to the bottom of the range of the PIRS rating.
  9. [243]
    I would have assessed the head injury as item 9 which has an ISV of 0 to 5; in the order of 1-2 given the lack of evidence as to the duration of symptoms.
  10. [244]
    The knees would have been assessed as item 140 which has an ISV of 0 to 5 and it would have been in the order of 0-1 on its own given it was limited to abrasions but recognising that it would have been painful for that period.
  11. [245]
    In relation to the lower back injury it would have been assessed as item 94 as there is no objective evidence or other exclusory factors as detailed in item 94. It has an ISV range of 0 to 4. I would have assessed it at or near the top of the range as it is not one where the injury will resolve without any ongoing symptoms within months after the injury is caused, given the ongoing symptoms I have found many years post accident.
  12. [246]
    To my mind, given the multiplicity of injuries, the ISV range of 5 to 10 for the injury to the neck is not sufficient to allow an appropriate ISV to be allocated within that range which adequately reflects the combined adverse effects of all injuries suffered. It is appropriate for an uplift to be given in this case. The injury to the neck should be allocated an ISV of 6 and combined with the effect of the other injuries, noting that there will be some overlap, the total ISV, with slightly less than a 25% uplift, is an ISV of 12. An ISV of 12 at the relevant time equates to $19,770.00.
  13. [247]
    I note that the ISV finding is consistent, to the extent that it is relevant, when differences in the injuries and findings are considered, with other cases including Foster v Carter and Anor [2017] QSC 135; Goodfellow v Clarke [2015] QDC 193 (for the neck injury) and Cook v Bowen and Anor [2007] QDC 108.

Economic loss

  1. [248]
    The plaintiff who seeks damages has the legal onus of proving loss of earning capacity and the extent to which the loss produces, or might produce, financial loss.[177]
  2. [249]
    As the plaintiff’s claim is for a global award (in the alternative for past economic loss), section 55 of the Act is applicable. It provides:

“55 When earnings can not be precisely calculated

  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.
  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. 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.
  4. The limitation mentioned in section 54(2) applies to an award of damages under this section.”
  1. [250]
    As was stated in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at [1]:

“A plaintiff in action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of these requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that ‘the diminution of…earning capacity is or may be productive of financial loss’ (citation omitted)”.

  1. [251]
    As was said by Rosengren DCJ in Norman v Hird and Anor [2025] QDC 44 at [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. The discretionary judgment needs to encompass a range of possible outcomes, some of which may be no more than a real possibility (footnotes omitted)”.

Whether the plaintiff has suffered past economic loss. If so, what is the proper quantification of any such loss.

  1. [252]
    The plaintiff contends that “even on a conservative estimate of damages he should be entitled to some award under this head of damages.”[178] The plaintiff’s submissions as to this head of damage are:

“If Mr Cabato’s evidence is accepted that he would have obtained work some five (5) months sooner, he should be awarded 5 months * 4.33 weeks @ $693.24 (based on Bindaree 38 p/w) net weekly which produces a loss of $15,008.64. There should be some additional allowance for overtime as Mr Cabato engaged in that.

If Mr Cabato’s estimate, admittedly that all it is, is not accepted, then it is submitted that Mr Cabato should nonetheless receive an awar[d] on a global basis in the sum of $8,000.00 to $10,000.00 based on Nichols v Curtis [2010] QCA 303.”[179]

  1. [253]
    Loss of past superannuation of $800.00-$1,500.00 is also claimed.[180]
  2. [254]
    In closing submissions, the plaintiff’s counsel stated that the claim is “effectively a global assessment, which would be based on there being some delay in him getting into the workforce, but that’s as high as I can put it…”.[181] He later described the claim as “the high water mark…”.[182]

The plaintiff’s evidence

  1. [255]
    The plaintiff gave evidence that he was educated to Grade 12 standard.[183] Whilst he initially had some career intentions of wanting to join the navy, he chose not to do so as he wanted to be close to family.[184] He worked at a fast food restaurant and then assisted his brother-in-law with labouring work over unspecified dates.[185]
  2. [256]
    He was then an apprentice in “wall and floor tiling” which involved lifting tiles and other items.[186] In evidence, the plaintiff stated that he was “let go” from the apprenticeship (see [46] for inconsistencies in this aspect of the evidence).[187]  There was no evidence from the plaintiff as to how long before the accident this was.[188] The plaintiff gave evidence that he was unemployed at the time of the accident.[189]
  3. [257]
    The plaintiff secured employment in September 2018 at Bindaree, the “meat factory”. He has been in constant employment since- at a call centre and most recently at an IGA supermarket. The plaintiff gave evidence that but for the accident he would have obtained “a job sooner than the meat place…probably five months sooner or more…just sooner.”[190] The plaintiff, in cross-examination, said he would have been able to be more “proactive, more active and outgoing (presumably in searching and applying for jobs and at interviews)” without “the pains and without my- without me holding myself back, my pains holding myself back…”.[191] The plaintiff was asked whether he was trying to get a job before the one at Bindaree Beef and the plaintiff replied “I was in Centrelink, trying to look for a job…I didn’t get one…I was at Centrelink with…youth support…”.[192]

Other evidence

  1. [258]
    The plaintiff in his Notice of Accident Claim form dated 23 December 2019,[193] approximately three years after the accident, answered “no’ in response to the question “Have you lost, or will you lose wages, salary, business or other income because of the accident?”
  2. [259]
    An earnings schedule is provided in exhibit 3 at page 434. It is as follows:

Financial year

Taxable income

Net income per year

Employer gross income per year *

Employer net income per week

Net income per week after tax

2016

$15,471

$15,471

$14,094

$252

$298

2017

$13,629

$13,629

$13,094

$240

$262

2018

$16,142

$16,142

$16,142

$285

$310

2019

$32,411

$29,762

$30,681

$497

$572

2020

$56,815

$48,031

$56,815

$883

$924

2021

$39,681

$35,853

$39,980

$661

$689

2022

$22,053

$22,053

$22,151

$353

$424

2023

$43,002

$37,854

$41,855

$668

$728

2024

$58,743

$48,129

$64,931

$1,005

$926

*Excluding Centrelink benefits: 2016 ($1,377); 2017 ($535) and 2019 ($1,725); 2023: ($1,538)

Determination

  1. [260]
    On the state of the evidence, it is my view that the plaintiff should not be awarded any sum for past economic loss.
  2. [261]
    The plaintiff gave evidence that he was unemployed at the time of the accident. It is unclear, on his evidence, how long he had been unemployed for, although I accept, given that the plaintiff completed year 12 in 2015 and the accident was in March 2017, and he had held other positions in the interim that it could not have been a lengthy period.
  3. [262]
    According to the plaintiff’s evidence, his first employment post the accident was at “Bindaree” and the employment records, tendered by consent, reveal that he commenced at that employment 18 months post accident.[194] In my view, there is insufficient evidence that the delay in obtaining employment was attributable to his injuries sustained in the accident. There is nothing other than speculation that he would have obtained a job sooner. There is no evidence as to how many jobs the plaintiff applied for (if any) before securing the position at the meat processing factory. Nor is there any evidence that he was precluded from applying for jobs because of the injuries sustained in the accident other than the vague statement he made referencing pain and that he would have been able to be more “proactive, more active and outgoing.”
  4. [263]
    Whilst there was no challenge to the plaintiff’s evidence as to the length of time he was unemployed for and that his first employment post-accident was at Bindaree Beef Pty Ltd, the earnings schedule duplicated at [259] and the plaintiff’s own Amended Updated Statement of Loss and Damage is not reconcilable with the plaintiff’s evidence. It includes income for the financial year from 1 July 2017 to 30 June 2018, prior to the commencement of his employment with Bindaree Beef Pty Ltd. There is therefore real reason to doubt the plaintiff’s evidence however, even accepting his evidence, I am not satisfied that there should be any damages awarded for past economic loss.
  5. [264]
    The plaintiff relies on the decision of Nichols v Curtis & Anor [2010] QCA 303 for its global claim for past economic loss however that case is not analogous to the present nor do any statements of principle assist. Whilst the applicant in that case did not clearly identify any specific employment opportunity which she passed up as a result of her injury, it was determined that the applicant’s evidence was to the effect that her injury had caused her to refrain from seeking employment in the field of work which she preferred and for which she was suitable and also evidence was given of attempts to find work. As detailed above, there is no such evidence in this case.

Whether the plaintiff has, or will in the future, suffer loss of earning capacity as a result of the collision. If so, what is the proper quantification of any such loss.

  1. [265]
    The plaintiff in his closing written submissions submits for a global claim of $100,000.00 to $200,000.00 for future economic loss.
  2. [266]
    The defendants’ primary position is that there is no basis for any finding that the plaintiff probably will lose income in the future and, accordingly, there is no basis for an award of damages for future economic loss. The alternative position is that if the Court were minded to make some allowance then it needs to be minimal.

Plaintiff’s evidence

  1. [267]
    The plaintiff was unemployed for a period and then in September 2018 he started working in the meat processing industry. He found the work difficult as he had to stand all day. He then worked in a call centre for a period and now works for an IGA store.
  2. [268]
    I have included a summary of his evidence relating to the injuries from the accident and their ongoing effects above.
  3. [269]
    The plaintiff gave evidence that he can still do his job without medication for his lower back pain and neck but “the pain is there.”[195] He stated that he relied on medication. The plaintiff indicated that at work, if he was to stand for a prolonged period of more than 30 minutes or sit down for about 30 minutes, he has to adjust his position because “the pain would linger.”[196] Lifting heavy things (20 kilograms consistently) or activities that are super repetitive also makes his lower back pain worse and he takes medication.
  4. [270]
    He explained that the physical tasks of his current job as a night supervisor at an IGA store include lifting products onto the shelves. He was asked “Do you suffer pain whilst doing them?” and he responded “Um- only if there is already pain, but I wouldn’t even do it if I’m feeling anything, like, but- no, I can do them.”[197] He said that he asked for assistance sometimes because he is in pain and sometimes because he needs to make sure the job gets done. In relation to working on the registers he said that he “can do it” but “I complain about my back and neck and knees”.  He indicated that every night he mops the store which takes him up to half an hour. He said that it was “fine”.[198] He indicated that he takes breaks that are not scheduled if he has pain in his neck, back or knees and sits down. He indicated that he has not told his “boss”.[199]
  5. [271]
    The plaintiff gave evidence that he works five days a week with Thursdays and Sundays off.[200] He explained that his neck, back and knee pain are better on his days off and having a day off between shifts assists.[201] He would be further assisted with his pain by having Tuesday off.
  6. [272]
    The plaintiff said in the future he would like to own a duplex and have the passive income from one whilst living in the other. He said that he doesn’t want to work in the IGA store because of his pain and also because he feels “stuck in there…my wage is the same”.[202] He said that he “wouldn’t mind owning a business in the future” and mentioned a business with his partner who is a nail technician.[203] He said he would not be able to perform a labouring role due to his pain levels. If he did not have the accident, his intentions were the “trade business”.[204]

Evidence of Ms Brissett and Master Dugard

  1. [273]
    I have included a summary of their evidence above. In addition, Ms Brissett has observed the plaintiff taking unauthorised breaks at work.

Dr Khursandi

  1. [274]
    Dr Khursandi stated that the plaintiff returned to work as a meat packer on a full time basis and he does not anticipate any significant organic barrier to his capacity to continue with his work notwithstanding his symptoms of neck and back pain.
  2. [275]
    Dr Khursandi accepted in evidence that a neck injury and back injury would impact a person more depending on their employment (examples were provided) and depending on the severity of the back injury or neck injury their working life may be reduced. He agreed that if someone has a back injury and they are performing manual work in a supermarket that it is going to cause an effect and, depending on the severity of the back or neck injury, it may reduce their working life.[205]

Dr Cleaver

  1. [276]
    Dr Cleaver opined in his first report that “were [the plaintiff] to try and find gainful employment in anything more physical than standing in a production line, he would in my opinion be associated with an almost 100% chance of exacerbating his symptoms and he would not be cleared to perform any kind of work which is laborious on the spine.” He stated that the plaintiff’s:

“ability to work has been affected by this accident and will continue to be so… [the plaintiff] currently struggles at work with pain. The requirement to earning a living currently overrides his physical symptoms. This is in keeping with someone of his age and demographic; however, could easily change. At work, he is embarrassed about his abnormal gait profile, as he starts limping after a short period of time of weight bearing. He avoids heavy lifting and takes frequent breaks. He is very fearful of developing these left sided hemiplegic type symptoms at work, both from a workplace health and safety point of view and from an embarrassment point of view. He reports that they happen about 5 to 10 times per day during his work hours of 2.00pm to 10.00pm.”

  1. [277]
    In his second report, Dr Cleaver opined that in the plaintiff’s current occupation he avoids heavy lifting and is absent from work one or two times per month with mechanical pains. He opined that the plaintiff “would best be advised to work a 3 day week. Having one day away from work after each working day would allow him time to rest his spine and presumably provide longevity to his working life. I would put him on a lifting restriction of 15 kilograms and restrict him from repetitive bending, twisting and squatting.’
  2. [278]
    The plaintiff submits that Dr Cleaver’s evidence would equate to a 40 percent reduction in earning capacity.

Dr Todman

  1. [279]
    Dr Todman in his first report stated that the plaintiff’s “current symptoms will continue to affect [the plaintiff] in day to day activities and employment. He is limited in the physical tasks that he could do and this will affect his hours of work and capacity to do more heavy physical jobs.”

Ms Jackson

  1. [280]
    The plaintiff also relies on Ms Jackson in support of his claim for future economic loss. Ms Jackson’s opinion is summarised as follows:

“[the plaintiff] remains in the workplace despite his mood complaint… there was no indication from him he was unable to perform or attend work due to psychological complaint; his psychological complaint was more so a general complaint across main life functioning as noted above. However, he did comment on his reduced ability to carry out tasks due to lifting difficulties and he commented on his anxiety associated with uncontrolled and unexpected left sided body tremors. Hence this question is probably best answered by an orthopaedic/neurological assessment. What may be evident however is that in view of [the plaintiff’s] uncertainty and hesitancy in relation to his physical disability, in the workplace he may be reluctant to perform certain duties (for fear of further mishap) which may impact on his work performance and/or attendance.”

Dr Cochrane

  1. [281]
    Dr Cochrane noted that the plaintiff was currently working as a supervisor and customer service officer in an IGA supermarket 5 days a week, 6 hour shifts. Dr Cochrane stated that the plaintiff “appears to cope with this level of employment despite his symptoms but I would be concerned that you client would not be able to escalate to greater than his current 15 hours per week at work.[206] Dr Cochrane opined that the plaintiff may be:

“Limited in employment opportunities in the future given his ongoing symptoms and the persistence of the episodes of dysfunction/hemiparesis of the left sided limbs places the plaintiff at risk for any vocations that involve the use of heavier equipment or vehicles or in fact, any employment environment where a sudden loss of function in the left sided limbs could result in an injury to himself or others. This would clearly limit [the plaintiff’s] employment opportunities.”

  1. [282]
    Dr Cochrane opined “I cannot say one way or the other whether [the plaintiff’s] career span will be shortened (ie his erstwhile retirement age brought forward) as a result of his injuries. What I believe is more pertinent is your client’s vocational options will remain limited to safer and sedentary type work roles for the long term given his ongoing symptomatology.”
  2. [283]
    Dr Cochrane, in his note of 28 March 2025, opined that “these episodes will continue to afflict [the plaintiff] indefinitely and there is no active treatment that is likely to assist to treat the paroxysmal left sided hemiplegic episodes”. He opined that the plaintiff is not suited for activities that may place others at risk specifically the operation of heavy or commercial vehicles or heavy or dangerous equipment. Dr Cochrane opined that it is not safe for the plaintiff to operate a motor vehicle or pushbike as “unpredictable loss of motor function or sensation afflicting the upper limb or left lower limb may render him at risk of succumbing to injury when operating vehicles or cycles.”

Dr Murphy

  1. [284]
    Dr Murphy opined that the plaintiff does not have any mental health condition that is impacting upon his occupational capacity.

Determination

  1. [285]
    The plaintiff, in written submissions, details two different scenarios:
    1. Scenario A is a claim for loss of $200,000.00 on a global basis plus superannuation. This appears to be based on a 20 percent reduction in earning capacity, with the plaintiff having 44 years of working life remaining and with a 5 percent multiplier resulting in 944. Different wages are then included ranging from the fair work ombudsman minimum wage, a building construction labourer position, and an IGA Nightshift manager (as per payslip up to 2 March 2025) with the respective figures including superannuation being $148,643.00; $196,632.93 and $184,051.30.
    2. Scenario B is a claim for loss of $100,000.00-$150,000.00 on a global basis. This scenario is submitted to be appropriate if the plaintiff’s pain levels are not accepted. It is submitted that even putting the left sided symptoms aside, the plaintiff may suffer diminution of earning capacity based on his injuries. It is further submitted that it is not speculative that the plaintiff will suffer some form of economic loss in the future be that by way of days off, reduced productivity, future aggravations, loss of competitiveness on the open labour market or some loss of opportunity.
  2. [286]
    It is submitted that irrespective of the court’s finding with respect to the veracity of the plaintiff’s pain reporting, objectively he has had a head injury, chronic adjustment disorder which may further develop if pain levels increased and a disc protrusion in his neck and lumbar spine. It is submitted there is “clear scope for loss.”
  3. [287]
    The plaintiff submits that he is a manual worker and will likely remain in the manual industry for the foreseeable future and has little if any transferable skills into sedentary employment. Manual employment is likely to have a more deleterious effect on his injuries, it is submitted, and therefore he is more susceptible to aggravations, particularly as he ages. This, in turn, is likely to affect his mental health.
  4. [288]
    The plaintiff referred the court to a number of cases dividing them into two categories: the first where a claimant has ongoing treatment and continuing symptoms associated with work but who has had no ongoing loss of income[207] and the second where there is evidence of an injury which has had a temporary effect and there is a mere risk of future interference with employment.[208]
  5. [289]
    The defendants’ position is that there is no proof of any relevant injury which affects the plaintiff’s earning capacity, nor is it likely to cause him any loss of income. As such, there is no basis for any award on a global basis or otherwise. The cases referred to by the plaintiff are all cases where there was an injury established to the satisfaction of the trial judge on which it could be said that it may lead to a loss of income. Further, the defendants submit that in circumstances where the plaintiff has not given any evidence of “so much as one day off work in the last eight years (or at least since he started employment) by reason of any injury, an assessment of $100,000.00 to $150,000.00 would be grossly excessive and beyond the exercise of any sound discretion”.
  6. [290]
    I accept the defendants’ submission to the extent that there is no evidence that the plaintiff’s injuries have resulted in any time off work to date. Again, the medical records are telling. The plaintiff attended on general practitioner’s to obtain medical certificates for conditions which temporarily prevented him from working but none were injuries from the accident.
  7. [291]
    The assessment of damages of a person in their mid 20’s is necessarily founded on hypothetical evaluations and defies precise calculations. The assessment is to be made on a global basis. Mere intuition is not sufficient. Section 55 of the Act requires me 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.[209]
  8. [292]
    I was referred to cases by both the defendants and the plaintiff as to amounts awarded in other cases for future economic loss. Clearly, each matter turns on its own facts and findings.
  9. [293]
    I accept the submission for the defendants that there is no evidence that the plaintiff has, to date, suffered any economic loss as a result of his injuries. He has, in fact, increased his earnings from prior to the accident which one would ordinarily expect as a person gains more work experience and takes on different or more senior roles. However, this does not mean that he will not experience economic loss in the future.
  10. [294]
    I have found that he has suffered injuries with ongoing symptoms including a neck injury (with objective signs although has full movement and restrictive pain that can be managed with medication), a back injury (again full range of movement and restrictive pain managed with medication) and a psychiatric injury (although there is no evidence that he currently meets the DSM V diagnosis for adjustment disorder or any other disorder). Given my findings, much of what is opined by Dr Cochrane, Dr Todman and Dr Cleaver is not applicable as I have not found that the injuries are to the extent and constancy that they determined on self-report.
  11. [295]
    The mere existence of an impairment does not mean, of itself, that earning capacity is affected. However, given my findings, I am persuaded that the plaintiff’s earning capacity has been diminished by reason of the ongoing restrictive neck and back pain[210] and that such diminution may be productive of economic loss in the future for the following reasons:
    1. The plaintiff may be limited in his ability to undertake moderate to heavy work;
    2. The plaintiff may be less likely to perform overtime given the need to manage his pain symptoms;[211]
    3. The management of his pain symptoms may involve taking more regular breaks;
    4. Manual employment may have a more deleterious effect on his injuries, and therefore he may be more susceptible to aggravations, particularly as he ages. This, in turn, may affect his mental health;
    5. Because of the plaintiff’s comparable youth, the chance of such aggravation or deterioration[212] occurring over time is greater than for someone with fewer working years remaining;
    6. The plaintiff’s experience is in roles which have a manual component and he has little if any transferable skills into sedentary employment particularly given the limitations in relation to the plaintiff’s functioning noted by Ms Jackson in her report;
    7. The limitations detailed at (a)-(f) will place the plaintiff at a disadvantage on the open labour market.
  12. [296]
    At his age, the plaintiff’s life could take various paths and the impact of an injury is difficult to assess however the extent of that loss due to the accident will be limited, in my view, to that detailed above. 
  13. [297]
    I award a global figure of $65,000.00 for future economic loss (including superannuation). To my mind, that is the appropriate figure based on the limitations I have detailed. I recognise that the defendants submitted for a figure in closing submissions of $15,000.00- $20,000.00 but to my mind that is not sufficient given the extent of the injuries I have found and the findings re the reasons for future economic loss. The cases relied upon by the defendants[213] were either much older plaintiffs[214] or had lesser symptoms.[215]At the other end, my view is that the plaintiff’s submissions are excessive.
  14. [298]
    To the extent that it is required, the methodology for the global award is based on a loss of $60.00 per week (at current wage this is 2 hours per week of base hourly wage) for 41 years (notional retirement age of 67), and applying the 5% discount tables. There is, of course, an artificiality to this calculation. I do not think it would be 2 hours every week however, over the course of the plaintiff’s working life, and for the reasons detailed at [295] to my mind that is the appropriate calculation for a person who continues to suffer residual neck and back symptoms, is comparably young, his work history and that he has sustained injuries which amount to an ISV of 12 with some having ongoing effects.

Special damages

Whether the plaintiff has incurred special damages in the past and as a result of the collision. If so, what is the proper quantification of any such expenses.

  1. [299]
    As per the plaintiff’s closing written submissions, he claims a total of $4,022.00 for past special damages. This is made up of $500.00 for past chemist expenses; $1,142.00 for medical attendances;[216] $2,240.00 for MRI expenses[217] and $140.00 for travel expenses.[218] 
  2. [300]
    The defendants conceded at trial the $500 spent on chemist expenses[219] and conceded in closing oral submissions that if I found as I now have, then the medical attendances could be accepted. In relation to the MRI, the defendants’ position is that it was undertaken after a previous adjournment of the trial to explore possible causes of the left sided symptoms and is a medico-legal cost rather than a treatment cost. That appears to be correct. Further, in relation to the travel expenses it is the defendants’ position that there was no evidence to support that part of the claim in the trial. I agree. 
  3. [301]
    As such, I will allow the chemist expenses and medical attendances but not the cost of the MRI and claim for travel expenses. This amounts to $1,642.00.

Future treatment

  1. [302]
    The plaintiff claims the following:
    1. Pain medication at $500 per year which equates to $9.61 per week. When taken over his life expectancy (multiplier 1006) and reduced on the 5% tables (with 15% for contingencies) the result is: $8,222.11;
  2. [303]
    The plaintiff gave evidence that he will take medication in the future to alleviate his symptoms. As I have determined that the plaintiff did suffer back and neck injuries in the accident which are managed with Panadol and Nurofen, it is appropriate that an amount be awarded. However, to my mind $9.61 per week is excessive given the restrictive nature of the pain (not constant). Further, I note, whilst not determinative, a global figure of $500.00 was claimed for the past cost. I have formed the view that half of the claim namely $4,111.05 should be awarded.
    1. 12 * sessions of adjustment counselling at the cost of $3,500.00;
  3. [304]
    Ms Jackson stated that the plaintiff would benefit from some adjustment counselling at a cost of approximately $3,500.00. However, there is no evidence that the plaintiff had this or any other psychological treatment and by the time of the plaintiff’s assessment with Dr Murphy, it was opined that he no longer met the diagnostic criteria for an adjustment disorder and no treatment was indicated.
  4. [305]
    I accept the opinion of Dr Murphy. I have taken into account that Dr Murphy conceded in cross-examination that if the plaintiff has been in pain “for a long period of time he will at some point need some help for his mental health”, but to my mind that is not sufficient for this part of the claim to be awarded. Instead, I will take this into account in considering the allowance for any further treatment.
    1. 12 * physiotherapy sessions at the cost of $1,440.00;
  5. [306]
    The plaintiff, in final oral submissions, indicated that physiotherapy was “factored in”, in case there was some aggravation of his physical injuries in the future. Further, Dr Todman in 2020 recommended a program of physiotherapy for the plaintiff’s cervical and lumbar spine with weekly treatments for up to three months. There is no evidence that the plaintiff engaged in any program of physiotherapy at that time and the plaintiff’s counsel now submits “and that’s why it’s claimed into the future.” The plaintiff’s counsel did concede that it could “quite easily be bundled up into a global amount” as claimed for “future treatment” but that the amount of $5 a week may end up having to be increased.
  6. [307]
    The evidence does not support this part of the claim however I will take into account in considering the allowance for any further treatment that there may be some very limited need in the future for physiotherapy.
    1. Anti inflammatory medication injections at the total cost of $15,000 as per SLD;
  7. [308]
    The plaintiff, in oral closing submissions, indicated that this part of the claim was no longer being pursued.
    1. Allowance for any further treatment at $5 per week ($260.00) per year. This equates to $4,275.50 on a global basis.
  8. [309]
    I accept that this amount should be awarded - $4,275.50. To my mind, this is the appropriate figure which includes taking into account a possible aggravation requiring physiotherapy (noting that there was no evidence that any has been required to date despite the manual jobs being performed by the plaintiff) as well as treatment as foreshadowed by Dr Murphy in evidence (noting again that there is no evidence that treatment has been received to date and that the adjustment disorder resolved (in terms of no longer meeting the full criteria) in the absence of treatment)  if the need arose.

Future care

Whether the plaintiff will require paid assistance in the future as a result of any injury suffered in the collision. If so, what is the proper quantification of any such requirement.

  1. [310]
    The plaintiff pleaded that in the future he will require paid assistance with the heavier domestic and associated type chores as well as house maintenance on an “as required” basis and makes a global claim in the sum of $40,000.00. In closing written submissions, the plaintiff submitted that the care claim is supported by Dr Todman and Dr Cochrane but then put forward an alternative approach which was worded as:

“an alternative approach may be to award the plaintiff care at 3 hours four times a year which produces a weekly figure of .23 hours per week. At say $35 per hour, this would equate to a weekly loss of $8.00 which produces a total loss of $6,840.00 when reduced on the 5% tables with a further allowance for contingencies over his whole life expectancy. This would allow for assistance with heavier tasks on a few occasions throughout the future.”

  1. [311]
    It is the “alternative approach” that was included in the table at paragraph 218 of the plaintiff’s submissions as what was “contended for”.
  2. [312]
    The defendants’ position is that the plaintiff’s claim as to any need for care supported by Drs Todman and Cochrane is “completely destroyed by Ms Morante’s failure to corroborate any need on the part of the plaintiff for care.”[220]

Plaintiff’s evidence

  1. [313]
    The plaintiff gave evidence that he can look after himself but if he is in pain he asks for help.[221] In relation to driving he said that he drives but it scares him due to him losing control “over my left side just randomly.”[222] The plaintiff admitted that his girlfriend does most of the work “because she does love me”.[223]
  2. [314]
    He further gave evidence that he gets assistance with putting his shoes on, washing dishes or folding the clothes if he is in pain.[224] The plaintiff said that his partner provides assistance for one to two hours per week because of his pain.[225] If they lived in a house and if he was in pain then he would need help from someone that “can do more physical work than my girlfriend.”[226] He gave evidence that he aspired to live in a house/duplex.[227]

Apple Morante

  1. [315]
    The plaintiff’s girlfriend, Ms Morante, did not support the plaintiff’s evidence as to when she assists him with washing the dishes and folding the clothes. She indicated that she did so when he was not at home.[228] She did state that the plaintiff needs her to “do things for him”.[229]

Dr Cleaver

  1. [316]
    Dr Cleaver opined that “it is my professional opinion that allowance ought to be made for [the plaintiff] to have assistance with household chores and food preparations…”. In his 2024 report, Dr Cleaver stated that the plaintiff reported that “90% of all household chores are now subserved by his girlfriend. [The plaintiff] assists with grocery duties and laundry duties and his girlfriend cooks all of [the plaintiff’s] meals. On questioning, [the plaintiff] admitted that all of these activities produced pain. He did also admit that most of the requirement for all of this assistance is by choice as he is the money earner in the household…[The plaintiff] reported that his girlfriend often helps him with dressing activities especially below knee level.”

Dr Khursandi

  1. [317]
    Dr Khursandi stated in a note of 16 June 2021 that the plaintiff has no incapacity to undertake domestic activities/activities of daily living as desired.

Dr Cochrane

  1. [318]
    Dr Cochrane noted that the plaintiff reported that he performs “perhaps 10% of the housework with his girlfriend performing the most. He will perform some light cleaning. His girlfriend does most of the washing and all of the cooking in the home.” Dr Cochrane opined that the plaintiff has the capacity for “light housework, domestic and social activities…”. He noted that the plaintiff’s partner:

“With whom he resides performs some 90% of the housework but this is a historical feature as best I can ascertain. [The plaintiff] does have to defer more difficult or robust cleaning activities to his partner and tends to perform lighter cleaning activities. As such, [the plaintiff] realistically would require either gratuitous assistance or commercial assistance when gratuitous assistance is not available for heavy cleaning activities, yard work, lawn mowing or any maintenance activities around the home as a result of his ongoing symptoms from injury.”

  1. [319]
    Dr Cochrane opined that it is not safe for the plaintiff to operate a motor vehicle or pushbike as “unpredictable loss of motor function or sensation afflicting the upper limb or left lower limb may render him at risk of succumbing to injury when operating vehicles or cycle.”

Dr Todman

  1. [320]
    Dr Todman opined in his report dated 15 April 2020 that “in the home environment, he requires assistance for heavy domestic tasks and home maintenance…”.
  2. [321]
    Dr Todman stated in evidence that the home maintenance jobs he would require assistance with are lifting up items in the home, general maintenance within a home and that the plaintiff stated he doesn’t drive distances because of pain.

Determination

  1. [322]
    The plaintiff stated that his partner provides assistance for one to two hours per week because of his pain but this was not supported by Ms Morante’s evidence. The plaintiff stated that if they lived in a house and if he was in pain then he would need help from someone that “can do more physical work than my girlfriend.” The opinions of Dr Cleaver, Dr Cochrane and Dr Todman are based on self-report that I have not accepted as to the extent and constancy of his neck, back and knee pain. I prefer the evidence of Dr Khursandi that the plaintiff has no present incapacity to undertake domestic activities/activities of daily living. However, I am prepared to accept that in the future there may be a need as per the plaintiff’s evidence (i.e. if they lived in a house he would require assistance for the heavier home maintenance jobs).
  2. [323]
    I will award damages of half the alternative basis contended for by the plaintiff namely $3,420.00. Whilst I accept that it is probable that in the future he will require assistance with heavier tasks it is unlikely to be 3 hours, four times per year over the duration of his life particularly given that he does not presently reside in a house and gave no evidence, that I accept, of currently needing assistance. I will allow 3 hours, two times per year over the duration of his life recognising that there is no current need but that the need may be greater as he gets older which will balance out the award.
  3. [324]
    Summary of damages

General damages

$19,770.00

Special damages (past)

$1,642.00

Future treatment

$8,386.55

Future care and assistance

$3,420.00

Future economic loss (including superannuation)

$65,000.00

Total

$98,218.55

Less 25% contributory negligence

-$24,554.64

Judgment order

$73,663.91

Orders

  1. [325]
    My orders are:
  1. Judgment for the plaintiff in the sum of $73,663.91.
  2. Unless the parties can agree on costs, submissions on costs from both parties, limited to no more than five pages must be exchanged and filed no later than 4.00pm on 28 May 2025.
  3. Any reply to those submissions, limited to no more than three pages, must be exchanged and filed no later than 4.00pm on 30 May 2025.
  4. Liberty to apply.

Footnotes

[1] Exhibit 3, p 120.

[2] Exhibit 3, p 398.

[3] Exhibit 3, p 226;286.

[4] Exhibit 3, pages 503-506.

[5] Transcript of proceedings on 31 March 2025 page 84 lines 38-39.

[6] Transcript of proceedings on 31 March 2025 page 85 line 3.

[7] Transcript of proceedings on 31 March 2025 page 85 lines 8-21.

[8] Transcript of proceedings on 31 March 2025 page 86 lines 33-41.

[9] Transcript of proceedings on 31 March 2025 page 87 lines 5-27.

[10] Outline of submissions of plaintiff at paragraph 7.

[11] A provision titled “Speed limit elsewhere” which provides for a default speed limit for a road in a built up area of 50 km/h;

[12] Transcript of proceedings on 3 April 2025 page 76 lines 13-16.

[13] Transcript of proceedings on 3 April 2025 page 76 lines 20-21.

[14] Transcript of proceedings on 28 April 2025 page 50 lines 40-50.

[15] Outline of submissions of plaintiff at paragraph 8.

[16] Outline of submissions of defendants at paragraph 71.

[17] Outline of submissions of defendants at paragraph 80.

[18] Including as to testing where there was no evidence of attempts at symptom distortion: her findings on testing re cognitive and memory difficulties and her mental health findings. This includes what is contained at paragraphs 61-68 of the plaintiff’s outline of submissions and closing submissions at transcript of proceedings on 28 April 2025 page 52 lines 5-15.

[19] The plaintiff contends that this test was based on or was the “Waddell” test and ought not to have been administered.

[20] I have still considered that the plaintiff denied acting in the way described by Dr Khursandi in response to the examination administered as detailed in the final paragraph of Exhibit 3, p 103.

[21] Exhibit 3, pages 399 and 400.

[22] Exhibit 3 page 227

[23] Exhibit 3, page 227.

[24] Exhibit 3, page 226.

[25] Records indicate he was given IV fentanyl 100mcg with QAS (Exhibit 3, page 226).

[26] Transcript of proceedings on 1 April 2025 page 71 lines 25-28, 36-39; page 72 lines 15-28; page 75 lines 4-21, 23-30; page 75 line 37 – page 76 line 7; page 76 lines 37-46; page 79 lines 25-46.

[27] Exhibit 3, page 431.

[28] Including in exhibit 6.

[29] Transcript of proceedings on 1 April 2025 page 83 lines 11-12.

[30] 9/10 to some of the medicolegal reporters.

[31] See, eg., transcript of proceedings on 1 April 2025 page 83 lines 29-36.

[32] Transcript of proceedings on 1 April 2025 page 83 lines 24-42.

[33] Exhibit 6.

[34] Transcript of proceedings on 1 April 2025 page 63 lines 20-22.

[35] Transcript of proceedings on 1 April 2025 page 89 lines 41-46.

[36] This is false.

[37] Exhibit 3, page 334.

[38] Transcript of proceedings on 1 April 2025 page 81 lines 7-9.

[39] Transcript of proceedings on 2 April 2025 page 4 line 25. 

[40] Exhibit 8.

[41] Exhibit 9.

[42] Transcript of proceedings on 1 April 2025 page 89 line 3.

[43] Transcript of proceedings on 2 April 2025 page 7 line 45 – page 8 line 14.

[44] Transcript of proceedings on 1 April 2025 page 26 line 18.

[45] Exhibit 3, page 73.

[46] Exhibit 3, page 27.

[47] Transcript of proceedings on 1 April 2025 page 15 line 12.

[48] Transcript of proceedings on 1 April 2025 page 54 line 11.

[49] Transcript of proceedings on 1 April 2025 page 13 line 22, page 14 lines 21-29.

[50] Transcript of proceedings on 2 April 2025 page 36 lines 4-5.

[51] Transcript of proceedings on 1 April 2025 page 17 lines 44-46.

[52] Outline of submissions of plaintiff at paragraph 39.

[53] Exhibit 3, page 58.

[54] Transcript of proceedings on 2 April 2025 page 56 line 34; page 50 lines 5-6; page 26 lines 39-40; page 59 lines 15-16.

[55] Transcript of proceedings on 31 March 2025 page 82 lines 4-6.

[56] Transcript of proceedings on 1 April 2025 page 66 lines 13-24.

[57] Exhibit 6.

[58] Transcript of proceedings on 1 April 2025 page 70 lines 21-22.

[59] Transcript of proceedings on 1 April 2025 page 70 lines 37-38.

[60] See, e.g., transcript of proceedings on 2 April 2025 page 25 line 44 – page 26 line 10; page 16 line 50 – page 17 line 32.

[61] Transcript of proceedings on 2 April 2025 page 26 lines 5-6.

[62] Transcript of proceedings on 1 April 2025 page 17 lines 12-21.

[63] Transcript of proceedings on 1 April 2025 page 17 lines 26-27.

[64] Transcript of proceedings on 1 April 2025 page 17 lines 29-31.

[65] Transcript of proceedings on 1 April 2025 page 17 line 44 – page 18 line 18.

[66] Transcript of proceedings on 1 April 2025 page 18 lines 20-21.

[67] Transcript of proceedings on 1 April 2025 page 18 lines 26-33.

[68] Transcript of proceedings on 1 April 2025 page 18 lines 35-42.

[69] Transcript of proceedings on 1 April 2025 page 18 line 44 – page 19 line 3.

[70] Transcript of proceedings on 1 April 2025 page 19 line 24 – page 20 line 21.

[71] Transcript of proceedings on 1 April 2025 page 21 lines 1-2.

[72] Transcript of proceedings on 31 March 2025 page 88 lines 29-40.

[73] Transcript of proceedings on 31 March 2025 page 89 lines 10-39.

[74] Transcript of proceedings on 28 April 2025 page 49 line 30 – page 50 line 5.

[75] Transcript of proceedings on 1 April 2025 page 5 line 29.

[76] Transcript of proceedings on 1 April 2025 page 6 lines 11-12.

[77] Transcript of proceedings on 1 April 2025 page 6 line 17.

[78] Transcript of proceedings on 1 April 2025 page 7 lines 26-27.

[79] Transcript of proceedings on 4 April 2025 page 80 lines 5-9; page 81 lines 1-3.

[80] In evidence he agreed this was barely movement at all (transcript of proceedings on 2 April 2025 page 92 line 14)

[81] In evidence he agreed this was “a very severe reduction” (transcript of proceedings on 2 April 2025 page  92 line 16)

[82] Transcript of proceedings on 2 April 2025 page 100 lines 10-15.

[83] Transcript of proceedings on 2 April 2025 page 100 lines 15-22.

[84] Transcript of proceedings on 2 April 2025 page 101 line 18.

[85] Transcript of proceedings on 2 April 2025 page 109 lines 43-47.

[86] Transcript of proceedings on 4 April 2025 page 35 line 28 – page 36 line 3.

[87] Transcript of proceedings on 4 April 2025 page 43 lines 39-41.

[88] Transcript of proceedings on 4 April 2025 page 45 lines 30-33.

[89] Transcript of proceedings on 4 April 2025 page 45 lines 39-41.

[90] Transcript of proceedings on 4 April 2025 page 49 lines 12-18.

[91] Transcript of proceedings on 3 April 2025 page 92 lines 24-27.

[92] Transcript of proceedings on 3 April 2025 page 92 lines 40-44.

[93] Transcript of proceedings on 3 April 2025 page 94 lines 3-8.

[94] Transcript of proceedings on 3 April 2025 page 94 lines 13-14.

[95] Transcript of proceedings on 3 April 2025 page 94 lines 28-32.

[96] Transcript of proceedings on 3 April 2025 page 97 lines 1-4.

[97] Transcript of proceedings on 3 April 2025 page 99 lines 5-7.

[98] Transcript of proceedings on 3 April 2025 page 99 lines 17-19.

[99] Transcript of proceedings on 3 April 2025 page 100 line 44 – page 101 line 7.

[100] Transcript of proceedings on 3 April 2025 page 101 lines 15-17.

[101] Transcript of proceedings on 3 April 2025 page 103 lines 18-21.

[102] See paragraph 24 on the limitations as to how I have considered this evidence.

[103] See paragraph 24 where I have detailed that I have excluded this from consideration.

[104] Transcript of proceedings on 3 April 2025 page 27 lines 5-14.

[105] Transcript of proceedings on 3 April 2025 page 27 line 27.

[106] Transcript of proceedings on 3 April 2025 page 29 lines 25-26.

[107] Transcript of proceedings on 3 April 2025 page 37 lines 1-5.

[108] Transcript of proceedings on 3 April 2025 page 38 lines 18-22.

[109] Transcript of proceedings on 3 April 2025 page 39 line 24 – page 40 line 14.

[110] Transcript of proceedings on 4 April 2025 page 53 lines 18-19.

[111] Transcript of proceedings on 4 April 2025 page 54 lines 8-11.

[112] Transcript of proceedings on 4 April 2024 page 54 lines 21-23.

[113] Transcript of proceedings on 4 April 2025 page 54 line 30.

[114] Transcript of proceedings on 4 April 2025 page 54 lines 38-43.

[115] Transcript of proceedings on 4 April 2025 page 64 line 15 – page 65 line 21.

[116] In a conference note of 27 March 2025, Dr Ault stated that the x-ray is unlikely to provide any further material information.

[117] I have excluded from consideration Dr Ault’s opinion that “the images are not consistent with a disc that was protruded some seven years before the image. It demonstrates only minor signal abnormality consistent with early degenerative disc disease” in circumstances where there was an objection to that evidence (transcript of proceedings on 31 March 2025 page 39 line 29). Whilst I was not ultimately asked to give a ruling on this objection, and not directly on point, Dr Ault accepted in cross-examination that he had elsewhere accepted that whether the disc protrusion at C5/C6 was likely caused by the subject accident was not a question for a radiologist (Transcript of proceedings on 4 April 2024 page 31 lines 35-45) and similarly re the cause of curvature. If I am wrong, and this opinion should have been considered by me, it does not alter any findings I have made including because the theory of Dr Cochrane, which I accept, is that it took time for the disc to protrude so it would not have been a “disc that was protruded some seven years prior to the image.”

[118] I have excluded from consideration Dr Ault’s opinion regarding the cause of the curvature and left sided symptoms as he agreed in cross-examination, he didn’t have the necessary qualifications.

[119] Transcript of proceedings on 4 April 2025 page 5 line 43 – page 6 line 5.

[120] Transcript of proceedings on 4 April 2025 page 6 lines 30-36.

[121] Transcript of proceedings on 4 April 2025 page 8 lines 1-9.

[122] Transcript of proceedings on 4 April 2025 page 8 lines 13-14.

[123] Transcript of proceedings on 4 April 2025 page 8 line 39 – page 9 line 2.

[124] Transcript of proceedings on 4 April 2025 page 14 lines 17-21.

[125] Transcript of proceedings on 4 April 2025 page 19 lines 31-44.

[126] Transcript of proceedings on 4 April 2025 page 21 lines 4-8.

[127] Transcript of proceedings on 4 April 2025 page 23 lines 12-16.

[128] Transcript of proceedings on 4 April 2025 page 23 lines 18-20.

[129] Transcript of proceedings on 4 April 2025 page 23 lines 36-43.

[130] Transcript of proceedings on 4 April 2025 page 28 lines 34-39.

[131] Transcript of proceedings on 4 April 2025 page 30 lines 3-8.

[132] Transcript of proceedings on 28 April 2025 page 76 lines 20-30.

[133] Also referred to by Dr Cochrane as “modest” in his note of 28 March 2025.

[134] Transcript of proceedings on 2 April 2025 page 99 at lines 40-45.

[135] See also the evidence of Dr Khursandi where he accepted that the disc protrusion may happen gradually as well from degeneration, which whilst not common in a 26 year old man “can be seen” (transcript of proceedings on 3 April 2025 page 40 line 14).

[136] Transcript of proceedings on 2 April 2025 page 100 lines 5-20.

[137] At Exhibit 3, page 516.

[138] Transcript of proceedings on 28 April page 41 lines 40-45.

[139] Transcript of proceedings on 3 April 2025 page 95 lines 40-45

[140] Evidence of Dr Khursandi – Transcript of proceedings on 3 April 2025 page 37 lines 27-39.

[141] Note dated 28 May 2025.

[142] I am not prepared to make a finding as contended for by the plaintiff that “the stiffening or strengthening of the neck was visible throughout the time that the plaintiff was giving evidence”. He was not asked any questions about this by counsel nor was it so obvious to me that it should lead to a finding.

[143] To Dr Cleaver and Dr Cochrane, the plaintiff self-reported approximately 20 times per day; to Dr Todman “daily’, Ms Jackson “20-40”, from “time to time” to Dr Khursandi; “10-50” times a day to Dr Saines.

[144] Also described in the same report as “at least one episode of tension and rigidity during the assessment, where [the plaintiff] had to stop and manipulate his left arm/hand…”

[145] Outline of submissions of plaintiff at paragraph 96.

[146] Transcript of proceedings on 3 April 2025 page 101 lines 13-17.

[147] Transcript of proceedings on 3 April 2025 page 103 lines 18-21.

[148] Exhibit 3, page 196.

[149] Which was not challenged.

[150] Outline of submissions of plaintiff at paragraph 123.

[151] Transcript of proceedings on 28 April 2025 page 55 lines 38-46.

[152] Transcript of proceedings on 1 April 2025 page 21 lines 13-15.

[153] Transcript of proceedings on 1 April 2025 page 21 lines 30-31.

[154] Transcript of proceedings on 1 April 2025 page 22 line 10.

[155] Transcript of proceedings on 1 April 2025 page 22 lines 22-40.

[156] Transcript of proceedings on 1 April 2025 page 24 lines 2-6.

[157] Transcript of proceedings on 1 April 2025 page 24 lines 1-6.

[158] Transcript of proceedings on 1 April 2025 page 25 lines 4-5.

[159] Transcript of proceedings on 1 April 2025 page 25 lines 7-10.

[160] Transcript of proceedings on 31 March 2025 page 76 lines 30-35.

[161] Transcript of proceedings on 2 April 2025 page 110 lines 38-42.

[162] Transcript of proceedings on 3 April 2025 page 95 lines 36-37.

[163] Transcript of proceedings on 3 April 2025 page 104 lines 8-10.

[164] See also [108] & [109].

[165] See also at [112].

[166] Transcript of proceedings on 3 April 2025 page 32 lines 13-18.

 

[167] Transcript of proceedings on 1 April 2025 page 26 lines 13-18.

[168] Transcript of proceedings on 3 April 2025 page 110 lines 9-10.

[169] Noting also that he is able to work and the social media posts paint a picture of a person able to currently deal with the stressor of the accident

[170] Transcript of proceedings on 1 April 2025 page 25 line 47 – page 26 line 4.

[171] Transcript of proceedings on 28 April 2025 page 60 line 35.

[172] Outline of submissions of defendants at paragraph 140(c). I have excluded consideration of the ankles as it was accepted by the plaintiff in closing oral submissions that it was not claimed.

[173] Transcript of proceedings on 3 April 2025 page 100 lines 20-27.

[174] Transcript of proceedings on 3 April 2025 page 100 lines 36-41.

[175] Transcript of proceedings on 3 April 2025 page 29 lines 21-23.

[176] Outline of submissions of plaintiff at paragraphs 124 and 125.

[177] Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3.

[178] Outline of submissions of plaintiff at paragraph 141.

[179] Outline of submissions of plaintiff at paragraphs 142 and 143.

[180] Outline of submissions of plaintiff at paragraph 218.

[181] Transcript of proceedings on 28 April 2025 page 60 at lines 35-40.

[182] Transcript of proceedings on 28 April 2025 page 61 at lines 25-30.

[183] According to the school records the plaintiff completed year 12 in 2015.

[184] Transcript of proceedings on 31 March 2025 page 80 lines 40-41.

[185] Transcript of proceedings on 31 March 2025 page 80 line 39 – page 81 line 13.

[186] Transcript of proceedings on 31 March 2025 page 81 lines 24-30.

[187] Transcript of proceedings on 31 March 2025 page 82 line 4.

[188] I note that he self-reported that this was about two months prior to the accident (exhibit 3, page 71) but given the inconsistencies in the self-reporting I do not accept this evidence.

[189] Transcript of proceedings on 31 March 2025 page 82 lines 8-10.

[190] Transcript of proceedings on 1 April 2025 page 52 lines 17-18.

[191] Transcript of proceedings on 2 April 2025 page 60 line 27.

[192] Transcript of proceedings on 2 April 2025 page 60 lines 15-20.

[193] Exhibit 6.

[194] Exhibit 3, page 448.

[195] Transcript of proceedings on 1 April 2025 page 22 line 43.

[196] Transcript of proceedings on 1 April 2025 page 23 lines 26-30.

[197] Transcript of proceedings on 1 April 2025 page 33 lines 12-13.

[198] Transcript of proceedings on 1 April 2025 page 37 lines 3-7.

[199] Transcript of proceedings on 1 April 2025 page 38 lines 5-19.

[200] Transcript of proceedings on 1 April 2025 page 39 lines 29-31.

[201] Transcript of proceedings on 1 April 2025 page 39 lines 37-39.

[202] Transcript of proceedings on 1 April 2025 page 43 lines 32-33.

[203] Transcript of proceedings on 1 April 2025 page 44 lines 11-17.

[204] Transcript of proceedings on 1 April 2025 page 45 lines 4-8.

[205] Transcript of proceedings on 3 April 2025 page 11 lines 3-36.

[206] This is incorrect – the plaintiff is working more than 15 hours per week which Dr Cochrane himself details earlier in the report (5 days a week, 6 hour shifts).

[207] Kovacevic v Holland Park Holidays [2010] QDC 279, Lee v Transport Accident Commission [2009] QDC 332, Cook v Bowen [2007] QDC 108, Foster v Suncorp [2017] QSC 135, Terranova v Allianz, unreported, O'Sullivan DCJ, DC No 608 of 2008, 29 May 2009, Nichols v Curtis & QBE [2010] QCA 303, Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211.

[208] Whitney v Whiteway and Anor [2006] QDC 163, Rosewarne v Marshall and Anor [2004] QSC 283, Cooper v Nguyen, Raffault v Gillard [2006] QDC 403, Carroll v Coomer and Anor [2006] QDC 146, Crowther v Caesar, Walker v Durham [2003] QDC 21, Martin v Brown [2005] QDC 381 and O'Brien v Merton and Anor [2020] QDC 299.

[209] Allianz Australia Insurance Limited v McCarthy [2012] QCA 312.

[210] Which may also result in further mental health issues.

[211] I accept the defendants’ submission that there is no evidence that this has occurred to date and the plaintiff has worked significant hours- sometimes over 50 hours per week in a manual role.

[212] Dr Cochrane in his report at page 521, paragraph 6 raises the possibility of a deterioration over time.

[213] Allianz Australia Insurance Limited v McCarthy [2012] QCA 312; Goodfellow v Clarke [2015] QDC 193; Evans v Williams & Anor [2018] QDC 210; O'Connor v Wright [2021] QDC 173.

[214] For example, Evans v Williams & Anor [2018] QDC 210 where the plaintiff was 51 years of age and had only worked in part-time employment earning a modest amount.

[215] For example, Goodfellow v Clarke [2015] QDC 193 where a total of $21,850 was awarded involved an item 88 only and the plaintiff did not resort to medications frequently.

[216] Exhibit 4 and transcript of proceedings on 1 April 2025 page 56.

[217] Exhibit 5 and transcript of proceedings on 1 April 2025 page 57.

[218] Paragraph 130 of the outline of submissions for the plaintiff reads “the claimant claims say 200km travel expenses at the rate of 0.70 per kilometre which was the rate adopted, albeit by agreement, in Hoveydai v Mak & Anor [2021] QSC 16”.

[219] Transcript of proceedings on 1 April 2025 page 50 lines 27-30.

[220] Reply submissions of the defendant, page 10, under 213-216.

[221] Transcript of proceedings on 1 April 2025 page 28 lines 1-2.

[222] Transcript of proceedings on 1 April 2025 page 29 lines 11-12.

[223] Transcript of proceedings on 2 April 2025 page 61 lines 4-12.

[224] Transcript of proceedings on 1 April 2025 page 52 lines 27-40.

[225] Transcript of proceedings on 1 April 2025 page 54 line 11.

[226] Transcript of proceedings on 1 April 2025 page 51 lines 33-34.

[227] Transcript of proceedings on 31 March 2025 page 80 line 18; 1 April 2025 page 44 lines 3-4.

[228] Transcript of proceedings on 4 April 2025 page 81 lines 15-25.

[229] Transcript of proceedings on 4 April 2025 page 80 lines 43-45.

Close

Editorial Notes

  • Published Case Name:

    Cabato v Paltridge and Another

  • Shortened Case Name:

    Cabato v Paltridge and Another

  • MNC:

    [2025] QDC 59

  • Court:

    QDC

  • Judge(s):

    Holliday KC DCJ

  • Date:

    21 May 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
3 citations
Jump To
Cite 1 - [2012] QCA 312
Cite 2 - [2012] QCA 312
Cite 3 - [2012] QCA 312
Allwood v Wilson [2011] QSC 180
2 citations
Jump To
Cite 1 - [2011] QSC 180
Cite 2 - [2011] QSC 180
Baldock-Davis v Popham [2023] QSC 24
2 citations
Jump To
Cite 1 - [2023] QSC 24
Cite 2 - [2023] QSC 24
Bell v Mastermyne Pty Ltd [2008] QSC 331
2 citations
Jump To
Cite 1 - [2008] QSC 331
Cite 2 - [2008] QSC 331
Carroll v Coomber [2006] QDC 146
1 citation
Jump To
Cite 1 - [2006] QDC 146
Cook v Bowen [2007] QDC 108
3 citations
Jump To
Cite 1 - [2007] QDC 108
Cite 2 - [2007] QDC 108
Cite 3 - [2007] QDC 108
Evans v Williams [2018] QDC 210
3 citations
Jump To
Cite 1 - [2018] QDC 210
Cite 2 - [2018] QDC 210
Cite 3 - [2018] QDC 210
Foster v Carter [2017] QSC 135
3 citations
Jump To
Cite 1 - [2017] QSC 135
Cite 2 - [2017] QSC 135
Cite 3 - [2017] QSC 135
Goodfellow v Clarke [2015] QDC 193
4 citations
Jump To
Cite 1 - [2015] QDC 193
Cite 2 - [2015] QDC 193
Cite 3 - [2015] QDC 193
Cite 4 - [2015] QDC 193
Hoveydai v Mak [2021] QSC 16
2 citations
Jump To
Cite 1 - [2021] QSC 16
Cite 2 - [2021] QSC 16
Kovacevic v Holland Park Holdings Pty Ltd [2010] QDC 279
1 citation
Jump To
Cite 1 - [2010] QDC 279
Martin v Brown & Anor [2005] QDC 381
1 citation
Jump To
Cite 1 - [2005] QDC 381
Medlin v State Government Insurance Commission (1995) 182 CLR 1
3 citations
Jump To
Cite 1 - (1995) 182 CLR 1
Cite 2 - (1995) 182 CLR 1
Cite 3 - (1995) 182 CLR 1
Nichols v Curtis [2010] QCA 303
4 citations
Jump To
Cite 1 - [2010] QCA 303
Cite 2 - [2010] QCA 303
Cite 3 - [2010] QCA 303
Cite 4 - [2010] QCA 303
Norman v Hird [2025] QDC 44
2 citations
Jump To
Cite 1 - [2025] QDC 44
Cite 2 - [2025] QDC 44
O'Brien v Merton [2020] QDC 299
1 citation
Jump To
Cite 1 - [2020] QDC 299
O'Connor v Wright [2021] QDC 173
2 citations
Jump To
Cite 1 - [2021] QDC 173
Cite 2 - [2021] QDC 173
Raffaut v Gillard [2006] QDC 403
1 citation
Jump To
Cite 1 - [2006] QDC 403
Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211
1 citation
Jump To
Cite 1 - [2007] QCA 211
Rosewarne v Marshall [2004] QSC 283
1 citation
Jump To
Cite 1 - [2004] QSC 283
Vos v Hawkswell [2009] QDC 332
1 citation
Jump To
Cite 1 - [2009] QDC 332
Walker v Durham [2003] QDC 21
1 citation
Jump To
Cite 1 - [2003] QDC 21
Whitney v Whiteway [2006] QDC 163
1 citation
Jump To
Cite 1 - [2006] QDC 163

Cases Citing

Case NameFull CitationFrequency
Cabato v Paltridge (No 2) [2025] QDC 822 citations
1

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