Rosewarne v Marshall[2004] QSC 283

SUPREME COURT OF QUEENSLAND

The issue

1. On the morning of 26 April 2002, the plaintiff was driving his motor vehicle along a suburban road in Brisbane. Suddenly, a truck pulled out from his left, striking the passenger side of the car, pushing the vehicle towards a traffic island. There it knocked down a traffic sign. The car was extensively damaged and could not be driven away.
2. Liability is not contested. Quantum remains to be decided.

Symptoms and restrictions

3. The plaintiff suffered several “cuts and scratches”. He was in shock, shaking, and finding it difficult to stand for a time. His back and neck soon became stiff and sore. That day he saw his general practitioner of many years, Dr Nixon, complaining of back pain and stiffness in the “paraspinal muscle due to rapid movement in car”, as Dr Nixon summarised his diagnosis: Ex 2. Four days later, the plaintiff returned, complaining of tight neck and back muscles. He told Dr Nixon that his back had been stiff but was getting better. Dr Nixon thought that the plaintiff had a minor, “niggling” injury which would settle within two months. Pain killers were prescribed.
4. As the year wore on, however, the plaintiff realised, he testified, that his pain was “getting worse and worse”, and that he needed treatment. In January 2003, the plaintiff saw Ms Bailey, a physiotherapist, who recorded that he attributed his “still niggly” back pain to the accident. He also said that he got more pain when he spent the day sitting at a computer. This “achy” pain was in the lower back, and occasionally the neck. Sometimes there were “creaks”. Ms Bailey treated the neck with deep tissue massage. The back was treated with trigger point therapy, massage, cupping, electrotherapy, exercise, and stretch.
5. The plaintiff saw Ms Bailey regularly until November 2003. He testified that the physiotherapy gave him only short-term relief. His back and neck “would be as stiff as they ever were the next day”, he said. According to Ms Bailey’s notes, however, on 3 September, the plaintiff told her that he was feeling “much better”, with improvement in the level of pain in both the cervical spine and back. Treatment continued. On 17 September, the plaintiff complained of moderate pain in the neck, which he related to his studies. A week later, Ms Bailey understood the plaintiff to say that his back was good but that his neck was still tender. At an attendance on 8 October, he reported that his neck had been quite good that week but that his lower back was sore. On 22 October, he spoke of “on and off pain” in the neck which was “not too bad”, adding that his right lower back had been sore. On 6 November, the plaintiff said that his lower back was worse than his neck but that things were “not too bad generally”. Ms Bailey’s impression was that the plaintiff’s condition would wax and wane, depending mainly on his study commitments. When he had done a lot of work, or a considerable amount of study, he tended to be “much sorer”.
6. In 2003, his final year of a Microelectronics and Bachelor of Information Technology dual degree program at Griffith University, the plaintiff began a work experience project. Since satisfying the degree requirements, the plaintiff has returned to work for the same employer. Throughout 2004, he has worked a 40-45 hour week, spending most of his working day at his computer, conducting research, typing, and drawing design diagrams.
7. Prolonged hours sitting have resulted in a deal of neck and lower back pain. Often, especially near the end of the working day, the disability affects the plaintiff’s powers of concentration as he feels exhausted and sore. The discomfort is alleviated somewhat by rest breaks. When the back is at its worst, the plaintiff experiences a sensation “like something pushing on all the pressure points in my lower back, and  it feels like my back is about to go into cramps”. The back sometimes “cracks” audibly. Pain is “constant” where the neck meets the shoulders. The neck too often “cracks”; and neck joints can feel “raw and grating”. By the end of the week, the plaintiff is, he says, “really struggling” with neck and back discomfort. He is “not very productive” on Thursdays and Fridays, and does not socialise on Friday nights. On weekends, for pain relief and to refresh his back for the week to come, he usually sleeps into the afternoons.
8. Other complications of his condition, as they were explained to Dr White, an orthopaedic specialist, three months ago (Ex 4, pp 1-2) are:

“His lower back pain was particularly aggravated by sitting at a computer for any length of time, long drives, lifting more than about 10 to 15 kgs, bending and housework duties such as vacuuming.

On occasions he has experienced pain down the posterior aspect of his left leg to about the knee. He said this can last for up to half a day.

Currently his neck is ‘probably’ causing more pain than his lower back and is associated with headaches which begin at the base of his skull before radiating forward. He also experienced pain at the base of his neck radiating across the top of the shoulders.”

Accident related?

9. The defendant contends that the symptoms and related limitations are not proved to have been caused by the accident. Rather, it is said, the evidence indicates that the complaints are explicable by a long history of spinal pain. And the medical history does show several pre-accident episodes of back pain. To set the context, something needs to be said about the plaintiff’s physical development.
10. The plaintiff was born in March 1981. During childhood and adolescence, he experienced three or four “growth spurts”, as he called them. These were episodes that lasted a few weeks. They resulted in significant increases in height. By the age of 11, the plaintiff was almost 6 feet tall. Two years later, he was still growing. Joint and other pain was associated with these bursts of bony activity.
11. In 1987, the plaintiff attended at the Prince Charles Hospital complaining of a fall onto his back from play equipment.
12. In 1989, Dr Nixon sent the plaintiff to Dr Gillett, an orthopaedic surgeon, with a letter of referral that spoke of “persistent and recurrent back pain”. A June 1989 report from Dr Gillett mentions upper lumbar and mid-thoracic back pain present for two years. The pain was experienced when sitting at school for long periods. Dr Gillett thought that the plaintiff “has postural back pain, and a history and examination today do not suggest that there is a more sinister cause”. He arranged for back care and extension exercises.
13. There is no medical record of back pain for about another five years. Then, in  March 1994, Dr Nixon referred the plaintiff to Dr Nave, an orthopaedic surgeon, who, in April 1994, wrote:

“With respect to his back he can have discomfort towards the neck but in general the pain extends through most of his spine and is  worse if the spine is unsupported or if he stands for a while. It is also aggravated when doing gymnastics. Sleeping is not affected and he does not take any analgesics.”

14. Spinal x-rays disclosed no scoliosis on standing X-ray, and no evidence of any vertebral abnormality. Dr Nave considered the cause of the pain to be “uncertain with the back being radiologically normal”. At Dr Nave’s suggestion, the plaintiff saw Ms Vicenzino, a physiotherapist, on 18 April 1994. He spoke to her of generalised back pain. Treatment consisted of mobilisations, electrotherapy, and postural exercises. Four days later, the plaintiff reported that he had not had back pain since the treatment.
15. In mid-November 1994, Dr Nave wrote:

“He has had no significant low back ache recently. He stills looks as if he has a scoliosis clinically although we know there was no significant scoliosis on previous X-rays.… He obtained a good result from physiotherapy …”

16. Dr Nave’s final report, in July 1995, says:

“He has had no problems with his spine since I last saw him. … I do not think his scoliosis will be any long term problem to him.”

17. The next record of back pain is in July 1998, when the plaintiff saw Dr Nixon. An X-ray was arranged. It was normal. Voltaren was prescribed. An exercise program was recommended. Less than three months later, the plaintiff consulted Dr Nixon about an unrelated matter. No note was made of any lingering back trouble. The back was again quiescent.
18. In September 1999, after a strain injury playing volleyball, the plaintiff saw Dr Nixon about his back. Dr Nixon sent him to Mr McIntosh, a physiotherapist, for an exercise program.
19. The plaintiff first saw Mr McIntosh on 1 October 1999, complaining of lower back pain that was aggravated by sitting, and decreased by movement, lying or  stretching. Mr McIntosh was told that the plaintiff had experienced lower back pain in the past, typically in connection with activity, such as playing sport, but that there had also been episodes of pain at times of relative inactivity. Mr McIntosh provided training and exercises to strengthen the musculature.
20. The physiotherapy and exercise regime worked. A week later, the plaintiff told Mr McIntosh of an increased range of movement, and that the back pain was “not as bad this week with sitting”. Mr McIntosh last saw the plaintiff on 14 October 1999, by which time he was pain free, with a range of movement that was “near normal”. The plaintiff resumed activities such as playing volleyball.
21. In the more than two years between the last of Mr McIntosh’s treatments and the accident, the plaintiff’s back was, he said, “pretty good”. There were occasions of back pain – little “niggling things” that were relieved with an hour or two’s rest. Throughout that time, the plaintiff did not seek any medical or other treatment for his back. Nor did he take any pain killers for such back discomfort as he did suffer. Yet, in those days, he often worked in positions which for someone of his considerable height – he is more than 6 feet 5 inches tall – were not ideal. He spent hours sitting in a university laboratory on stools with no backs and in lecture theatres cramped into seats designed for shorter people.
22. As the consultant occupational physician, Dr Burke, has said (Ex 18, p 2), the history of back pain indicates that the plaintiff “was at increased risk of developing chronicity of back pain after the accident”. His was a vulnerable back. The history also reveals that there was always “a fairly strong possibility”, as Dr White put it, that the plaintiff would suffer episodic back pain throughout his life. But, in the five years or so before the accident, the records of complaints are confined to two incidents: an instance of back pain in 1998, and a muscular sprain whilst playing volleyball in 1999. The symptoms were of short duration. And when the plaintiff completed Mr McIntosh’s physiotherapy, he was symptom-free. He returned to long hours of study in relatively fixed posture, and to volleyball.
23. On the plaintiff’s account, the accident produced symptoms which were more significant than the occasional back pain experienced in the years leading up to the accident. This is an indication that the accident is at least largely responsible for the plaintiff’s post-accident predicament. And medical evidence accords with the view that the accident has caused appreciable, permanent disability in both neck and back.
24. Dr Burke, a consultant occupational physician, considers that “the injuries are attributable to the accident…”: Ex 17, p 5. Dr Nixon believes that the problems associated with the plaintiff’s stature had been resolved before the accident (Ex 3), which indicates that the accident has brought about the post-accident condition. A similar view is taken by Dr White, an orthopaedic surgeon. He arranged for an MRI scan of the cervical spine in May 2004, which revealed no abnormality. So also, an MRI scan of the lumbar spine showed no significant intervertebral disc pathology. Dr White thinks that the plaintiff “suffered a flexion/extension injury to his cervical spine and a soft tissue injury to the lumbar spine” in the accident: Ex 4, p 3.
25. The other factor the defendant relies on to negate a connection between accident and later symptoms is that the plaintiff did not seek treatment for months after seeing Dr Nixon on 30 April 2002.
26. The plaintiff put long hours into his post-accident studies in 2002. And he maintains that the symptoms gradually worsened. After his visit to Dr Nixon four days after the accident, however, more than eight months passed before he sought treatment. At first blush, this omission does seem somewhat surprising, as the plaintiff was no stranger to advice and treatment for back problems. Moreover, he saw Dr Nixon in September/October 2002 about unrelated matters. At none of those consultations did the plaintiff make much of his back. Nor did he bother to attend the university medical clinic. So there is reason to hesitate before accepting the plaintiff’s account of post-accident symptoms or of their relationship to the accident.
27. There is, however, a satisfactory explanation for his conduct.
28. The plaintiff did not consult a medical practitioner or seek other treatment concerning his back or neck between 30 April 2002 and seeing Ms Bailey in January 2003 because he was, as he said, “extremely busy” with his studies. He put up with the pain, trying to manage it with the exercises Mr McIntosh had suggested years earlier. And, soon after his examinations finished, the plaintiff saw Ms Bailey for treatment, recounting facts which are only consistent with the view that the accident caused the ongoing neck and back difficulties.
29. As to the omission to discuss the symptoms with Dr Nixon in the latter part of 2002, it is true that Dr Nixon did not make any note of any complaint of back pain. The plaintiff, however, did ask him whether the problem that prompted the visits might have been related to his back injury. Moreover, although the plaintiff’s recollection of events in childhood is, unsurprisingly, imperfect, his account of events in his latter school years and since is, generally, acceptable. His testimony was, in important respects, confirmed by his father, who impressed me as truthful. Of particular importance is the father’s evidence about the absence of significant back trouble in the five years or so preceding the accident, and concerning the adverse impact on the plaintiff’s life at home of the ongoing symptoms.

Extent of the accident-related disability – in summary

30. Dr White considers that the cervical spine is stable, and that the plaintiff has suffered a 5% whole person, permanent impairment as a consequence of the injury sustained in the accident. The long-term prognosis includes development of significant cervical spondylosis, although this may take 15 to 20 years to further impair function. Some symptomatic relief could be obtained from time to time by physiotherapy and other conservative treatments. As to the back, according to Dr White, the lumbar spine is stable; and its condition represents a 3% whole person permanent, accident-related impairment. He thinks it unlikely that the lumbar spine can be materially improved in the longer term.

Economic Loss

31. The medical specialists are not agreed on the relationship between symptoms and earning capacity. Dr Burke considers that the symptoms the plaintiff related to him “were not severe and to date have not impaired any activities that he has wished to perform”: Ex 17, p 5. This reflects a less than complete appreciation of the consequences of the injury. Dr Burke also commented that the symptoms appeared to be tolerable. And he thinks that with appropriate self-management – taking regular rests breaks and moving between sitting and standing postures – “it should be possible to affectively control the impact of the symptoms. I would not expect his earning capacity to be affected by the injury”: Ex 17, p 5. This seems an overly optimistic view. The notion that the accident has adversely affected earning capacity is supported by other, preferable medical evidence, as well as by the opinions of an occupational therapist, which are also acceptable.
32. According to Dr White:

“I consider Mr Rosewarne is likely to remain unfit for work involving heavy physical labour, prolonged standing, prolonged sitting, lifting, repetitive bending or maintenance of head and neck in fixed positions for extended periods of time.

In the absence of further trauma he should remain fit for light semi- sedentary duties having some degree of freedom to sit, stand or move around as dictated by any discomfort that he may be feeling from time to time.

Mr Rosewarne is likely to have ongoing difficulties with employment as an information technology expert. Provision of an appropriate ergonomic situation in the workplace and a continued back   and   abdominal   muscle-strengthening   exercise programme supervised by a physiotherapist, plus swimming training, would assist in this regard.” (Ex 4, p 4)

33. In a recent report, Mr Hoey, an occupational therapist, records complaints by the plaintiff of continuing difficulties at work. These included neck and lower back pain with long periods sitting at the computer, lower back pain with long periods of standing (to complete monthly presentations), neck and lower back pain with long periods sitting in company meetings, and difficulties concentrating because of pain in the neck/shoulder and lower back regions. Mr Hoey thinks that the plaintiff’s capacity for static postures of the head and neck has been “moderately compromised”, and that because of lower back pain, his capacity for long periods of sitting or standing “has been compromised also”: Ex 7, p 7. He regards the complaints as consistent with his testing, adding:

“Mr Rosewarne is only 6 months into his career as a software designer. And already he is having great difficulty coping with full time hours. This is not a good predictor for his ability to continue working full time in the long term.

In my opinion, full time hours as a software engineer will continue to aggravate Mr Rosewarne’s injuries (with an associated increase in symptoms). In the longer term, his condition will thus be better managed by a part time workload – the order of 4 days per week. Preferably this would be spread over Monday, Tuesday, Thursday and Friday.

Physically, Mr Rosewarne’s injuries may reduce his working capacity to some 4 days per week. Commercially, this reduction in working hours may be far reaching. Obviously, his remuneration will be reduced, but also, he may be less attractive to potential employers if he can only work part time (only 9% of jobs for software engineers in Australia are part time).”

34. Accepting, as I do, that view of things, the neck and back problems attributable to the accident do affect, considerably and adversely, the plaintiff’s earning prospects. But the amount of income likely to be lost cannot be gauged with any pretence to accuracy. There are too many imponderables. 2004 is only his first year working an ordinary week. So it is early days in his working life. This is enough to make any forecast about income to be lost hazardous. Secondly, his current employment circumstances are special. He is paid a part-time rate of $400 per week gross. This low wage allows the employer to keep him on, in the hope that the firm will get more of the specialised software development projects at which the plaintiff excels. In that event, he will be offered a permanent position, at a starting salary of at   least $32,000 p.a. With this employer, he might gradually be promoted to a software development senior position that now pays more than $55,000 p.a. Presumably, similar opportunities exist with other software enterprises. But, whatever the future holds, Mr Hoey is surely correct in thinking that the neck and back disabilities attributable to the accident will result in a substantial loss of income over the years.
35. Mr McElroy, who operates the business in which the plaintiff is employed, will continue to accommodate the plaintiff’s special needs, including affording him a measure of flexibility in hours to be worked. Even so, there will be days away from work because of the pain: so far this year, he has already lost seven days over four absences. More importantly, at times, staff in Mr McElroy’s business work long hours. In any position to which the plaintiff would aspire with Mr McElroy, he may well need to work 60 hour weeks over three-four week periods, perhaps as often as four times annually. With the pain, however, he is most unlikely to be productive for such extended periods, even if, which is not certain, he could manage to stay at his desk. In short, his prospects of advancement to better paid positions with Mr McElroy are diminished because of his injuries, but to an extent that is very difficult to estimate.
36. The difficulty of assessing the value of the lost opportunity to earn is only exacerbated when other prospective employers are considered. Such another might well not be as accommodating as Mr McElroy. Then there is the consideration that software development is often undertaken as independent contract work. Were the plaintiff self-employed, he could expect to earn $40 per hour now. That option is open. But, very probably, he would not be able to work the hours he could have managed but for the accident, now or in the future.
37. The assessment of the components for pain and suffering and economic loss must reflect the high probability that the plaintiff would have suffered some back trouble in any event. He was destined for at least occasional pain. In the near term at any rate, however, his problems probably would not have been more serious, in nature or frequency, than the relatively little difficulty experienced in the five years preceding the accident. Nonetheless, though much about the damages is uncertain, the assessment needs to reflect a substantial risk that the back may eventually have caused more pain and restrictions, as well as consequential income loss.

Award

38. For pain and suffering and loss of enjoyment of the amenities of life, $40,000 is allowed. Interest (at 2% p.a.) is allowed on $17,500: $800.
39. Inevitably in the circumstances, only a global assessment of economic loss can be attempted. In that exercise, perhaps some assistance can be got by postulating an average weekly loss of 2.5 hours work. Over 30 years, using the self-employed contract rate of $40 per hour, on the 5% tables, this equates to a net present value of about $60,000 (assuming a weekly after-tax loss of $70). A greater future loss than 2.5 hours per week is indicated: in particular, by the views of Mr Hoey: see especially his prediction concerning a four day working week. On the other hand, to allow only 2.5 hours as a basis for calculation would be to acknowledge material contingencies.
40. There can be no pretence to precision in the economic loss assessment. $60,000, however, presents as fair compensation for this component of the award.
41. The injury caused in the accident has exposed a need for assistance.
42. The plaintiff keeps fish for a hobby. When emptying the tanks, he carries a smaller water bucket than was possible previously. He also enlists his father’s help with the heavy jobs involved in caring for the fish. Before the accident, the plaintiff used to wash his car once a week. He would have difficulty doing something like that now. In future, he will have a need for other assistance because of his injury. The plaintiff lives with his parents. When he can afford to do so, he plans to get a house of his own. Depending on the state of the yard, he may well need help in such tasks as mowing the lawn. Mr Hoey estimates that, living independently, the plaintiff will require up to two hours of assistance monthly.
43. The past Griffiths v Kerkemeyer claim is allowed at $1,350 (45 minutes a week for 120 weeks at the agreed rate of $15 per hour), plus interest (at 5% p.a.) of $150. For the future, the sum claimed – $11,500 – is allowed, which assumes a need of 45 minutes a week for two years, and thereafter one hour a week for 42 years, with the sum yielded then discounted by 15% for contingencies, and rounded off.
44. Out-of-pocket expenses are allowed at $863.55 ($100.55 for X-ray; $523 for physiotherapy; and $240 for painkillers (at $2 per week)). Interest of $57 is allowed on this expenditure. The HIC refund is $48.90. The cost of future pain killers and medication is allowed at $1,500 (about $2 per week for 42 years, discounted by 15% for contingencies).
45. The damages are, therefore, assessed at $116,269.45.