Clark v Hall[2006] QSC 274

SUPREME COURT OF QUEENSLAND 

1. The plaintiff, a 26 year old single woman, was injured when the first defendant’s vehicle struck the rear of a trailer attached to the plaintiff’s car while stationary on Gympie Road, Chermside. The plaintiff was then positioned at the rear of her vehicle looking in the open boot for a replacement battery for her car which had broken down on the highway.

2. Whilst liability was an issue at the trial, Mr Grant-Taylor SC for the defendants conceded in submissions that the court would be likely to find that the first defendant was negligent. The real issue was whether there was contributory negligence by the plaintiff. He submitted that contributory negligence was twofold in that the plaintiff allegedly failed to operate hazard lights on her car and trailer and that she positioned herself between the car and the trailer in the centre of a busy highway thus exposing herself to risk of injury. The first of these allegations involves findings of credit while the second does not but needs to be evaluated against facts not in issue.

3. The parties are considerably apart on the appropriate quantum of the plaintiff’s damages, particularly for loss of future earning capacity.

The circumstances of the motor vehicle accident

4. On Thursday 8 May 2003 at about 5.30 pm the plaintiff was driving along Gympie Road, Chermside inbound towards the city near the intersection of that highway with Webster Road. She was driving her Ford Fairmont sedan which was towing her father’s box trailer loaded with household goods which she was conveying from her former premises at Bray Park to new accommodation at Milton Road, Auchenflower. The plaintiff had made several trips that day and this was the last. Thursday was her day off from her employment as a casual kitchen hand at the Breakfast Creek Hotel at Albion. The plaintiff was accompanied by Ms Linda Mauchline as a front seat passenger, a chef then employed at the Breakfast Creek Hotel, who had assisted her with the previous load and this final one.

5. The car and trailer were travelling in the third designated lane from the left shoulder of the road. Gympie Road had four designated lanes but the fourth lane, to the plaintiff’s right, became a turn right lane into Webster Road and another added turn right lane was created to the right of the fourth lane some unmeasured distance from the traffic lights at the intersection with Webster Road.

6. The certificate from the Department of Natural Resources and Mines (exhibit 14) reveals that on 8 May 2003 sunset occurred at 5.12 pm, civil twilight concluded at 5.36 pm and astronomical twilight concluded at 6.32 pm. “Twilight” is explained as being:  

“The interval of time preceding Sunrise and following Sunset during which the sky is partially illuminated.  It is difficult to give precise statements of the degree of illumination at varying angles of depression of the Sun, and in any case, such illumination is dependent upon other causes such as moonlight and weather conditions.”

The certificate defines “civil twilight” as:  

“…the time when ordinary outdoor operations are difficult without artificial light, although there will still be ample light to make possible large scale operations, requiring outlines only; the brightest stars will be visible to the eye.”

“Astronomical twilight” is described as:  

“…synonymous with darkness.”

7. The plaintiff switched on the lights of her car as she approached the Webster Road intersection but before it came into view. When she did so the engine of her car cut out. She assumed a problem with the battery and the car coasted up and just over the top of the rise and was brought to a halt because cars were stopped in front of her vehicle. It may reasonably be inferred that they were banked up waiting for the traffic lights at the Webster Road intersection to turn green to allow them to continue ahead. The second added right turn lane adjacent to the median strip and the fourth lane had just commenced at about the point where the plaintiff’s car halted. Photographs (exhibit 3) of the slight crest on Gympie Road indicate that the traffic lights were out of sight of drivers on Gympie Road inbound until approximately the point where the painted right turn arrow first appears on the road surface. Exhibit 2 is a diagrammatic depiction of Gympie Road and the point of impact. The plaintiff said that her car was where the trailer is positioned on that diagram, that is, slightly more to the north but nothing seems to turn on this.

8. The plaintiff said that when her car was halted she turned on the car hazard lights and those on the trailer and got out of the car. She opened the bonnet to ascertain the cause of the breakdown. Another motorist came to her aid with jumper leads which got the engine running. That motorist then departed. The plaintiff and her passenger returned to the car. The plaintiff released the handbrake and was about to put the gear into “drive” when the engine stopped again. The car had automatic gears and power steering. The plaintiff had a spare battery and tools in the boot of her car, so she got out of the car intending to change the battery. When asked about her ability to do so the plaintiff said:

“I’m not a mechanic, your Honour, but I can change a battery.  It’s just basically a quick job really to unlock the terminals, take that battery out and put the other one in and join the terminals back up.

MR LYNCH:  Had you done that before? -- Yes.

This battery that you had as a spare with your belongings? -- Yes.

Had you used it before? -- I think we’d used it like in a boat before and stuff like that, so.

Okay? -- It wasn’t old though.

It wasn’t old? -- No.

Okay.  Did you have the appropriate tool to -----?--  I was looking for it in my boot with all my other tools.

What would that be? -- Just a spanner, a shifter.

Shifting spanner, all right.  Did you actually open up your boot? -- Yes.” t/s 21-22

9. While the plaintiff was looking in the boot she heard a screech then a bang and the trailer hit her and pushed her into the boot. She emerged and was thrown to the road, carried and pushed along by the trailer. Her car travelled forwards down toward the traffic lights as the trailer became uncoupled from it and was observed by others to rise in the air. The plaintiff noted from the road that her car was seriously damaged, was leaking fuel and that the hazard lights were operating. The plaintiff was assisted to the side of the road by Ms Mauchline, who had been standing nearby and a passing motorist. The plaintiff thought her car and the trailer might have been stationery for up to 30 minutes but admitted to having no accurate sense of time.

10. Ms Mauchline recalled the plaintiff saying something was wrong with the car as it “crested the rise” t/s 81, but she was not a driver and gave the impression that the mechanics of cars were a mystery to her. The car stopped and both women got out. Ms Mauchline walked back up the hill “to stop vehicles or to try and slow vehicles down”, t/s 81. Ms Mauchline stopped after a time and turned to walk back towards the car. She was then standing in the middle of the lane occupied by the plaintiff’s car but back on the rise. She noticed the flashing orange hazard lights on the car which she said she could see easily from the top of the crest. So far as she could ascertain, the car lights were not on although it was getting towards dusk, she thought, but not dark enough for car lights. She did not notice whether the hazard lights were illuminated on the trailer.

11. Ms Mauchline returned and stood next to the car on the driver’s side as the plaintiff looked into the boot. She heard a screech and a bang, closed her eyes and saw the car a few feet before the traffic lights with its hazard lights illuminated and petrol spraying. She found the plaintiff curled up under the trailer.

12. Ms Mauchline said that from the time the car first stopped to impact was about 15-20 minutes and during that time cars travelling in the lane in which the car and trailer were halted successfully manoeuvred around them. The traffic was gradually increasing in intensity during that time.

13. The first defendant was driving a Ford Falcon utility – a work vehicle – and was quite familiar with Gympie Road and this part of it. He intended to travel straight ahead at the Webster Road intersection. He was travelling in lane three – that in which the plaintiff’s vehicle and trailer were stopped. As he drove over the crest (which he said obscured the traffic lights) and keeping up with the flow of traffic, he became aware of the halted car and trailer ahead. He applied his brakes but was unable to stop before colliding with the trailer. He denied that there were any hazard lights operating on either the trailer or the car and, if on the car, he said they would have been obscured from his vision by the trailer. The speed limit at that part of Gympie Road was 70 kilometres per hour. He said that while the street lighting was “reasonable”, the natural lighting was “dim”, t/s 113.

14. The first defendant acknowledged that sometimes the inbound traffic could build up on Gympie Road when confronted with a red traffic light at the Webster Road intersection. He assumed there was a green light in his favour because the traffic around him was not slowing. He conceded that there was no vehicle immediately in front of him in his lane and as he came over the crest was confronted with the allegedly unlit trailer about 30 to 50 metres away. He could not change lanes because of the traffic on either side. He thought that if the trailer had its hazard lights illuminated he might have been alerted to its presence a little earlier and able to stop to prevent a collision. The first defendant was proceeded against for failing to drive with due care and attention. He is, by virtue of s 79(3) of the Evidence Act 1977 deemed to have committed the acts and to have possessed the state of mind to constitute that offence unless the contrary is proved.

15. Mr Richard Humberdross was travelling with his then girlfriend inbound in lane two to the left and slightly behind the first defendant’s utility. He heard a loud screech and bang and saw a trailer lift into the air. He stopped his vehicle on the left side of the verge and went to assist the plaintiff and Ms Mauchline. He had little recollection of details of the event but was reminded that in a contemporaneous statement he had said the traffic lights facing him were red at the time of impact and changed to green soon after and that he did see lights on the plaintiff’s vehicle. His recollection at trial was that he saw no lights but agreed that his attention was on the potentially injured people. He was aware that the owner of a four wheel drive motor vehicle had positioned his vehicle at the crest of the hill behind with its hazard lights illuminated to warn oncoming traffic but had abandoned the position as too dangerous.

16. Ms Jodie Ann Temple, Mr Humberdross’s passenger, was able to contribute little or no useful evidence.

Conclusion on liability

17. Mr Grant-Taylor suggested to the plaintiff that she might have manoeuvred her vehicle to the left hand verge of the road and safety when the engine stopped. She rejected this possibility – the car without power steering was heavy and unmanoeuvrable particularly with the extra weight of the loaded trailer and there were two lanes of traffic to traverse to reach the side of the road.

18. Whether or not the hazard lights were illuminated I conclude that the first defendant was negligent by paying insufficient attention to the road ahead or travelling a little too fast to allow him to avoid the collision. The immediate advent of the intersection controlled by traffic lights with the possibility that the red light may have stopped traffic just over the crest, of which the first defendant was aware, ought to have resulted in extra vigilance on his part. In fact it made little difference that the plaintiff’s vehicle was broken down. It was a stationary vehicle for which the first defendant should have been prepared as he came over the crest towards the intersection controlled by traffic lights. Rather telling is that the disabled vehicle had been stationary on the highway for 15 to 30 minutes in failing light and increasingly busy traffic conditions and all other vehicles travelling in lane three had been able to avoid a collision. If, as I find below they were, the hazard lights were operating, the inattention was greater.

19. Mr Grant-Taylor attempted to impugn the plaintiff's credit by challenging her failure to include a knee injury sustained when dancing which caused her to be off work for about three months when listing her pre-accident injuries together with a few other "slips" in her statements of loss and damage. I was not persuaded that this omission was indicative of any want of honesty. She had revealed other injuries and the knee did not give her any continuing problems so there was no basis for concealment.

20. I accept the plaintiff’s evidence that she activated the hazard lights on her car and the trailer and that they were operating as soon as she halted her car. She gave the impression of being a practical, competent person so far as such things are concerned. She had grown up on a dairy farm and was use to handling machinery. Ms Mauchline’s evidence supports the conclusion that the car hazard lights were operating and on. She could not say one way or the other whether the hazard lights were operating on the trailer. There was no suggestion that Ms Mauchline was tailoring her evidence to help a friend. She and the plaintiff had come to know each other only through work and had not communicated for some years.

21. The other basis upon which the defendants argue that the plaintiff’s damages ought to be reduced and reduced significantly was her “suicidal” decision, as Mr Grant-Taylor described it, to position herself between the car and the trailer. He submitted that she ought to have withdrawn to the median strip as had Ms Mauchline and endeavoured to obtain assistance by the use of her mobile phone. The plaintiff, however, had no road side emergency insurance and her father lived in the country and no other appropriate assistance was suggested. The plaintiff’s response to this suggestion was to say that so far as she was concerned the best thing to do was to change the battery, a job which she could do very quickly, and get on her way and remove the hazard from the road, it might be inferred. There is no doubt that the situation was a dangerous one but cars coming over the crest in lane three had been able to manoeuvre around the vehicle and trailer and there was no evidence to suggest that there had been any “near misses”. Indeed Ms Mauchline had walked up the incline in that lane to alert traffic and it might be supposed that she would not have exposed herself to extraordinary danger had it been apparent.

22. In McPherson v Whitfield [1996] 1 Qd R 474, a case better known for a discussion of volenti non fit injuria and contributory negligence in the context of a driver and passenger affected by alcohol, Macrossan CJ with whom McPherson JA and Lee J agreed said at 478:  

“The test involved in assessing the extent of the failure to take reasonable care for one’s own safety which is what the issue of contributory negligence is concerned with, invites attention to the level of care which can be expected of the reasonable man in the circumstances as they present themselves.”

23. Counsel referred to a number of traffic cases. In FAI General Insurance Co Ltd v Curtin & Anor (1997) 25 MVR 289 the majority (Lee and Fryberg JJ) upheld the trial judge’s conclusion that the defendant whose car had collided with that of the plaintiff had failed to prove fault in the plaintiff in stopping her car substantially on the incorrect side of the carriageway.  The plaintiff’s evidence suggested an unspecified and unproved mechanical fault.  Macrossan CJ would have allowed the appeal on the question of contributory negligence because the plaintiff’s account was “glaringly improbable” as to how the car came to be positioned in such an extraordinary place (at 290).  White v May (1995) 22 MVR 473, a decision of the Full Court of the Supreme Court of South Australia (Doyle CJ, Prior and Williams JJ), demonstrates that all cases turn very much on their own particular facts in this area.  A plaintiff, who set out to drive a car with a flat battery and low on fuel, ran out of fuel shortly before reaching a service station.  He pushed most of his car off the carriageway but left a part on it.  Whilst the plaintiff was receiving assistance to jump start the battery, the defendant collided with the protruding rear of the stationary car.  The trial judge reduced the plaintiff’s damages by 10 per cent to reflect his contributory negligence in leaving part of the car on the carriageway at night.  That finding was not upset on appeal but the court expressly found that it was not negligent to set out on a journey in a vehicle with a flat battery and low in fuel.  Justice Prior observed that had the car lights not been on then a greater apportionment might have been made.  The evidence did not suggest any particular difficulty in pushing the car off the road completely.  Neither of those decisions assist here.

24. Mr Grant-Taylor referred to Suncorp Insurance and Finance v Fitchett (1997) 25 MVR 479, a decision of the Court of Appeal (McPherson, Davies JJA and Mackenzie J).  The plaintiff drove his truck into the rear of the defendant’s trailer and prime-mover, stationary on a straight stretch of road facing in the plaintiff’s direction of travel.  The trailer occupied the whole of the left hand carriageway of the road.  To the left of the vehicle was a 4.4 metre wide trafficable gravel shoulder.  The defendant had stopped his prime-mover and trailer to adjust the tarpaulin on the load.  He could have parked on the shoulder which was firm, dry and well compacted so as to leave little or none of the vehicles on the bitumen surface.  The lights of the trailer were illuminated.  The trial judge apportioned 20 per cent of the blame for the collision to the plaintiff.  The defendant there chose to stop his vehicle on the carriageway when he could easily have reduced substantially the risk of a collision from a following vehicle by pulling off on the shoulder of the road.  Those facts are significantly different from the present. 

25. The defendants have not discharged their onus of proof that the plaintiff, in the circumstances which confronted her, made a wrong choice so as to constitute contributory negligence when she decided that she should change the battery on the car, an operation which could be quickly and simply achieved.

26. In conclusion I find that the first defendant was negligent and that the plaintiff was not contributorily negligent on either of the bases advanced at trial by the defendants.

Quantum

27. Following the collision the plaintiff was taken by ambulance to the Royal Brisbane Hospital Emergency Department. The most serious injury was an open fracture of the great toe on the right foot. She also sustained cuts to her hand and legs, bruising to her chest and fuel burns to her skin. The toe was sutured, her foot placed in a soft plaster and the wounds cleaned. The plaintiff was discharged home on crutches to return to the fracture clinic the following day. The stitches were removed from the toe after approximately 10 days when a hard plaster was applied and remained in place until 4 July 2003. X-rays taken then suggested the union of the fracture at the proximal phalanx and no follow up was arranged.

28. Initially the plaintiff was quite disabled and mobilised in a chair on wheels at home. When her body bruising healed the plaintiff could use crutches more comfortably. She had a quite severe cut to her hand and wrist which took some time to heal. She was assisted in daily living tasks by family and friends.

29. The plaintiff experienced particular difficulty in wearing a closed shoe because the pressure on her great toe was very painful. In September 2003 she attempted to return to work at the Breakfast Creek Hotel. She was offered reduced shifts and managed two a week for several weeks but gave up because of the pain in her foot. Her work required her to be on her feet for up to five hours per shift with little rest and to wear closed safety shoes.

30. The plaintiff consulted privately with Dr Terry Saxby, an orthopaedic specialist in the foot. He observed on x-ray non-union of the fracture of the proximal phalanx and recommended revision surgery. The plaintiff, who had to wait on the public list, underwent plating and bone graft (from the lower tibia) to the proximal phalanx of her right great toe at the Mater Hospital in May 2004. Two K wires were temporarily put into her toe and later removed. She complained of significant pain post-operatively and was discharged on crutches. After about six weeks keeping her foot immobile the plaintiff’s condition did improve in as much as she felt able to attempt work in August 2004. Again she was unable to manage the pain in her toe associated with closed shoes and after struggling for just over a month she and her employer agreed that she was unable physically to do the work. The plaintiff was well regarded for her work as a kitchen hand, particularly as a “plater-up” at the hotel. Ms Melinda Venning, the catering manager at the hotel, described the plaintiff as reliable and competent. After a very mixed past working history with lengthy periods of unemployment the plaintiff had found work which suited her including her social needs and so its loss was quite devastating.

31. The plaintiff received regular payments under her income protection policy of insurance until July 2005 when she accessed a Newstart Incapacitated allowance. The plaintiff abandoned her study at Yeronga TAFE, which she had earlier commenced, at the time she ceased work due to pain in her toe and distress about losing her employment.

32. The plaintiff, post injury, also experienced a fear of motor vehicle situations and avoided driving. About a month or so after the subject accident she was a passenger in a car driven by a friend who was assisting the plaintiff to overcome her fear of driving and was involved in another car accident. Although she was not physically injured the plaintiff was “shocked”. As a consequence, she developed a diagnosed phobia about cars and driving and received therapy in late 2003 at about the time she was attempting to return to work. She again required therapy in March and April 2004 to help her control her anxiety both when driving and as a passenger.

33. Mr Steve Morgan, a psychologist, prepared medico-legal reports after examining the plaintiff on 9 September 2004 and on 10 September 2005. The plaintiff told Mr Morgan of her continued anxiety about driving and of flashbacks to the accident, of a generally sad mood due to loss of her work, and of relationship problems and pain. Notwithstanding the successful surgery on her toe the plaintiff continued to complain of pain and restricted movement. Mr Morgan diagnosed the plaintiff in September 2004 as suffering from a chronic post-traumatic stress disorder (DMS-IV-TR 309.81) attributable to the subject accident. He noted a number of prior stressors in her life including a number of criminal assaults and personal injury in a motor vehicle accident in February 2003 (broken thumb). Of these Mr Morgan wrote:  

“…[the plaintiff] has experienced a prior sequence of stressors (as noted at 33.0).  Whilst her current symptoms and experience of impairment are phenomenologically distinct from these experiences – it is likely that her prior trauma experience may have been of some indeterminable and limited kindling effect.  I also note that whilst [the plaintiff] reported essential recovery from trauma symptoms by the time of the indicated motor vehicle incident – she stated that she had not fully recovered her sense of confidence.”  Exhibit 4 at 33

Mr Morgan recommended cognitive behavioural therapy to assist the plaintiff in managing her symptoms over a four to six month period.  He assessed her Psychiatric Injury Rating Scale (PIRS) at 7 per cent but added that he did not believe that this percentage “fully captures the severity or true extent of impairment experienced”, (exhibit 4 at 35).  This will be discussed more fully below.

34. The plaintiff has lived in a number of locations around south east Queensland since the accident, sometimes alone, sometimes with family and sometimes in personal relationships. Her capacity to engage in pre-accident activities such as bush-walking, going to the gym and general socialising diminished during this period.

35. When Mr Morgan reviewed the plaintiff in November 2005 she had more functional capacity for home tasks than previously, the pain in her toe was less and her neck pain (associated with an earlier accident) had resolved but she complained of the onset of low back pain which she attributed to postural change due to her injured toe. The plaintiff reported psychological distress due to pain, loss of work and no prospects of work and increased weight (the plaintiff reported to Mr Morgan being 150 kilograms at age 20 years, reducing to 90 kilograms at the time of the accident and rising to 137 kilograms when examined). The plaintiff had been treated with anti-depressants by her general practitioner and had attempted to overdose on one occasion prior to Mr Morgan’s second examination and continued under the care of her general practitioner. The plaintiff had experienced a turbulent and sometimes violent relationship with her partner during late 2004 / 2005 and experienced a number of family losses.

36. Mr Morgan diagnosed the plaintiff as being depressed consistent with a Major Depressive Disorder (DSM-IV-TR 296.2X) from late 2004 to 2005. On this consultation the plaintiff no longer fulfilled the criteria but Mr Morgan thought she was at risk of further depressive episodes in the event of further stressors or in the absence of further amelioration in her pain and general situation. He advised that although her psychological state was improved, the plaintiff remained vulnerable and would benefit from a course of treatment of 8 to 10 sessions as well as a monitored drug regime.

37. The plaintiff was examined by Dr Axel Estensen, a psychiatrist, on behalf of the defendants in September 2004 when he accepted the past diagnosis of Specific Phobia (driving), which was no longer present. He advised that she was then suffering from an Adjustment Disorder with mixed anxiety and depressed mood (chronic). The plaintiff was examined by him again on 9 March 2006. As the plaintiff herself reported and as Dr Estensen noted, her move to Larnook in northern NSW has led to a beneficial change in her life. The plaintiff is now undertaking Business Administration Certificate III training with TAFE in Lismore and is positive about her employment prospects. She reported to Dr Estensen that her mood was good, that she was driving without anxiety but still experienced daily toe and foot pain which fluctuated in duration and intensity. She took anti-inflammatory medication and panedine forte at night to control her pain. By March 2006 the plaintiff no longer suffered from any mental disorder, was fully self-caring and enjoyed the recreational activities associated with living in the country. This was notwithstanding the rather primitive nature of her accommodation. She had initiated her own rehabilitation and was positive about returning to work.

38. The plaintiff’s first recorded complaint of lower back pain was to Dr N Burke, an occupational physician, who noted in his report of 3 May 2005 that the back pain had been present for six months as well as neck pain. The neck pain is attributable to a previous injury. On clinical examination, he found very little low back restriction. Mr Stephen Hoey, an occupational therapist, on clinical examination found no limitation in the plaintiff’s back movement and did not regard the plaintiff’s complaints of pain as a barrier to sedentary occupations. He concluded as a result of his clinical testing that her occupational restrictions were as a consequence of her injured right toe rather than from her lower back. He agreed that the plaintiff’s self reporting would attribute a significant component of her impairment for work to her back, but, importantly, she attributed her difficulties with long standing, walking and stairs to her right foot and these were the activities essential to her work as a kitchen hand or similar.

39. The plaintiff herself attributes her low back pain to her awkward gait as a consequence of her toe injury. There is no expert support for this assumption. It is not an aspect of her claim for damages and it will not impede her ability to undertake sedentary type work. Dr English suggested that the plaintiff's "lower back discomfort" was "unrelated to the foot injury and probably more representative of [the plaintiff's] excessive weight and poor general fitness." Exhibit 9, report of 13 March 2003, at 3.

40. Mr Grant-Taylor has submitted that the plaintiff’s low back pain, which it is accepted does not stem from the motor vehicle accident, is a factor which ought to reduce her damages for economic loss. This is not a Purkess v Crittenden (1965) 114 CLR 164 situation alleging some non-compensable cause for the plaintiff’s disability.  The plaintiff’s low back pain, which does not appear on the evidence to be either productive of limitation of movement or symptomatic of underlying pathology, is not preventing her from undertaking suitable employment.  The pain is experienced, it may be accepted, but it is not relevant to the issue of economic loss as I will discuss, but may affect other heads of damage.

41. When Dr English examined the plaintiff on 14 September 2004 her toe was painful and swollen and she tended to walk on the lateral border of her foot to avoid discomfort. On examination she was tender to palpation over the dorsel of her metatarsophalangeal (MTP) joint. She was able to achieve 40 degrees of extension of the MTP joint compared to 50 degrees on the left foot and 20 degrees of flexion of the MTP joint (note correction of page 4 of the written report of 16 September 2004, exhibit 9, in oral evidence by Dr English at t/s 131) compared with 30 degrees on the left. The interphalangeal joint was stiff and in a good position with only 5 degrees range of motion. Dr English assessed the plaintiff as having a three per cent impairment of her right foot or a one per cent whole of person impairment.

42. When Dr English saw the plaintiff in March this year she was still complaining of low back pain. Her gait was normal – her shoes had a symmetrical wear pattern. She indicated exquisite tenderness to light touch on her right great toe over the joints not explicable in orthopaedic terms. The joint showed the same range of movement as previously and the same percentage impairment was accordingly given. Dr English adhered to his opinions in oral evidence explaining persuasively his disagreement with Dr David White’s assessment (which was based on an immobility of her great toe) of ten per cent loss of whole right lower limb function plus five per cent for pain.

43. Dr David White, an orthopaedic specialist, examined the plaintiff on 5 October 2004. The plaintiff reported tenderness in the interphalangeal joint of the great right toe. He reported the joint had no movement. He noted a marked reduction in the flexion and extension of the MTP joint. Dr White recorded no measurements in his reports. He concluded that the plaintiff’s condition was stable and assessed her as having a ten percent whole right lower limb impairment because of the immobility in her right toe in accordance with the AMA Guidelines and a further five percent impairment consequent to pain.

44. On a subsequent examination on 24 October 2005 Dr White noted that the plaintiff walked with a limp and expressed tenderness over the interphalangeal joint where Dr White observed “virtually no voluntary movement”. Flexion at the MTP joint was “moderately reduced”. Again no measurements were recorded. Dr White considered that the long term prognosis was for post-traumatic osteoarthritis of the interphalangeal joint of the big toe and that an arthrodesis of that joint would be required in three to five years because of the level of pain. Dr White seems to have accepted that the plaintiff's function in her great toe could have improved in the months after when she saw Dr English which would explain the different assessments of loss of function. It was not suggested to Dr White that his prediction of osteoarthritis was unfounded.

45. Dr Nick Burke, an occupational health specialist, examined the plaintiff on two occasions the most recent being in May 2005. On examination the plaintiff demonstrated pain related behaviour (for example, excessive grimacing). Dr Burke found a decreased range of movement in the MTP joint. Extension was possible to 30 degrees compared to 50 degrees on the left foot. Flexion in the right toe was possible to 20 degrees and in the left to 30 degrees. He found “an extremely low level” of movement in the interphalangeal joint. He noted tenderness over the dorsel aspect of the MTP joint.

46. Dr Burke concluded that the plaintiff demonstrated moderate reduction in range of motion in her great toe according to two per cent whole of person impairment. By reference to chapter 18 of the AMA Guide he concluded that a one per cent uplift would be appropriate so that her overall whole person impairment he estimated at three per cent.

47. The relevant specialists all agreed that with the limitations on standing for any length and the pain associated with wearing closed shoes the plaintiff would need to find a sedentary occupation which allowed her to move between sitting and standing throughout the day.

48. The plaintiff’s damages are to be assessed by reference to the provisions of the Civil Liability Act and Regulation 2003.  Section 51 of the Civil Liability Act (“CLA”) defines “general damages” as damages for  

“(a)pain and suffering; or

(b) loss of amenities of life; or

 (c) loss of expectation of life; or

 (d) disfigurement.”

49. Section 61 provides

“(1) If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows—

(a) the injured person’s total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100;

(b) the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;

(c)in assessing the injury scale value, the court must—

(i) assess the injury scale value under any rules provided under a regulation; and

(ii) have regard to the injury scale values given to similar injuries in previous proceedings.

(2)If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value.”

50. Section 62 of the CLA provides for the calculation of general damages according to the assessment of the injury scale value (“ISV”) and the formulae set out in s 62, for example, if the scale value of the injury is assessed as five or less a plaintiff’s general damages are calculated by multiplying the scale value by $1000. 

51. The Civil Liability Regulation 2003 (“the Regulation”) in s 6 provides the ranges of ISV for particular injuries referred to in s 61(1)(c)(i) of the CLA. 

52. Section 6 of the Regulation concerns the rules for assessing ISV and provides,

“(1) This section and schedules 3 to 6 provide the rules under which a court must assess the injury scale value for an injury.

(2) Schedule 4 provides the ranges of injury scale values for particular injuries that the court is to consider in assessing the injury scale value for those injuries.

(3) For an injury not mentioned in schedule 4, a court, in assessing an injury scale value for the injury, may have regard to the ranges prescribed in schedule 4 for other injuries.

(4) Schedule 3 provides matters to which a court is to have regard in the application of schedule 4.

(5) Schedule 6 provides the psychiatric impairment rating scale that may be used with schedule 4.

(6) Schedule 5 provides matters relevant to the application of schedule 6 and requirements with which a medical expert must comply in assessing a PIRS rating for a mental disorder of an injured person.”

53. An ISV assessed by a court must be a whole number, schedule 3 s 14. Schedule 3 s 2 provides:

“(1)In assessing the injury scale value (ISV) for an injury mentioned in the injury column of schedule 4, a court must consider the range of injury scale values stated in schedule 4 for the injury.

(2)The range of ISVs for the injury reflects the level of adverse impact of the injury on the injured person.”

54. Section 3 of schedule 3 of the Regulation provides for multiple injuries:

“(1)Subject to section 4, in assessing the ISV for multiple injuries, a court must consider the range of ISVs for the dominant injury of the multiple injuries.

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

55. Where the maximum dominant ISV is inadequate schedule 3 s 4 provides how this may be increased:

“(1) This section applies if a court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact.

(2) To reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV.

(3) However, the ISV for the multiple injuries –

(a)must not be more than 100; and

Note –

Under the ACT, section 61(1)(a), an ISV is assessed on a scale running from 0 to 100.

(b)should rarely be more than 25% higher than the maximum dominant ISV.

(4) If the increase is more than 25% of the maximum dominant ISV, the court must give detailed written reasons for the increase.

(5) In this section-

maximum dominant ISV, in relation to multiple injuries, means the maximum ISV in the range for the dominant injury of the multiple injuries.”

56. Schedule 7 of the Regulation, the dictionary, defines “dominant injury” of multiple injuries as meaning

“(a)if the highest range for 2 or more of the injuries of the multiple injuries is the same – the injury of those injuries selected as the dominant injury by a court assessing an ISV;  or

(b)otherwise – the injury of the multiple injuries having the highest range.”

57. Section 8 of schedule 3 refers to other provisions to which the court must have regard when assessing general damages. It provides

“(1)In addition to providing ranges of ISVs for particular injuries, schedule 4 sets out provisions relevant to using schedule 4 to assess an ISV for particular injuries.

(2)In assessing an ISV, a court must have regard to those provisions to the extent they are relevant in a particular case.

(3)The fact that schedule 4 provides examples of factors affecting an ISV assessment is not intended to discourage a court from having regard to other factors it considers are relevant in a particular case.”

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

58. The extent of whole person impairment is an important consideration “but not the only consideration affecting the assessment of an ISV”, schedule 3 s 10. The dictionary defines “whole person impairment” 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.”

By schedule 3 s 11

"If a medical report states a whole person impairment percentage, it must state how the percentage is calculated, including –

“(a)the clinical findings;  and

 (b)how the impairment is calculated;  and

 (c)if the percentage is based on criteria provided under AMA 5 –

(i) the provisions of AMA 5 setting out the criteria;  and

(ii)if a range of percentages is available under AMA 5 for an injury of the type being assessed – the reason for assessing the injury at the selected point in the range.”             

59. The dictionary defines “AMA 5” to mean the “5^th edition of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association”.  The provisions of the Guides relating to the great toe are set out in exhibit 15.  The Regulation requires a court to give greater weight to a medical assessment of whole person impairment percentage based on the criteria provided under AMA 5 than to one which is not. 

60. Section 5 of schedule 3 provides that:

“(1)This section applies if a court is assessing an ISV where an injured person has an adverse psychological reaction to a physical injury.

(2)The court must treat the adverse psychological reaction merely as a feature of the injury.”

“Adverse psychological reaction” is defined in the dictionary not to include a mental disorder.  The plaintiff has been assessed as having a mental disorder caused by the motor vehicle accident within the Diagnostic and Statistical Manual of Mental Disorders (“DSM 4”).  The plaintiff claims damages for her mental disorder caused by the motor vehicle accident. 

61. Schedules 5 and 6 concern the method of assessment for a psychiatric impairment rating (PIRS). A PIRS rating may be accepted by a court only if it is assessed by a medical expert as required under schedules 5 and 6 and provided to the court in a PIRS report, schedule 3, s 6. A “medical expert” for an assessment of a PIRS rating is a person appropriately qualified to perform the assessment, who has had appropriate training in the use of the PIRS and includes a psychologist, neuropsychologist or psychiatrist. Schedule 5 sets out how to assess a PIRS rating and what a report must contain, ss 4 and 12. Dr Estensen has provided a PIRS in respect of the plaintiff in a report which is compliant with the Regulation.  Dr Estensen estimated that the plaintiff had a PIRS rating of 1 per cent in respect of her condition when he saw her on 14November 2004.  He concluded that her previous adjustment disorder had fully resolved as had her major depressive episode by the time he saw her for his second report on 9 March 2006.  As a consequence, he then assessed her PIRS rating at 0 per cent. 

Assessment of general damages

62. As can be seen, the assessment of general damages, rarely a matter of great dispute between the parties or of particular complexity at common law in this State, has been made difficult by legislative attempt to bring some consistency into this area of the law of personal injury. The time involved in traversing the labyrinthine structure of the CLA and Regulation has cast a larger burden than hitherto on the medical and legal professions and the courts.  It is to be hoped that the reduction in general damages awards will have the anticipated effect of reducing premiums and the affordability of insurance will be achieved.  Otherwise it seems to be a rather vexing exercise in over prescription with nothing much to see for it.

63. Mr Lynch would classify the great toe injury under item 152 “serious toe injury” with an ISV of 8 to 12. The examples given in schedule 4 for item 152 are:

“•A severe crush injury that needs no or only a partial amputation

  •A bursting wound, or an injury causing severe toe damage, with significant symptoms”

It is to be contrasted with item 153 “moderate toe injury” which Mr Grant-Taylor submitted was more appropriate.  It has an ISV of 4 to 7.  The comment and examples associated with that item are:

“Comment

  There will be permanent discomfort, pain or sensitive scarring.

Examples of the injury

  •A moderate injury to the great toe

  •A crush injury causing multiple fractures of 2 or more toes

  Comment about appropriate level of ISV

  An ISV at or near the top of the range will be appropriate if there has been more than 1 unsuccessful operation, or there are persisting stabbing pains, impaired gait or similar effects.”

64. What constitutes the dominant injury has little relation in the Regulation dictionary to the objective facts.  A “dominant injury” of multiple injuries means

“(a)if the highest range for 2 or more of the injuries of the multiple injuries is the same – the injury of those injuries selected as the dominant injury by a court assessing an ISV; or

(b)otherwise – the injury of the multiple injuries having the highest range.”

The plaintiff's other serious injury is for her psychological disorder.  The ISV for item 12, a moderate mental disorder, or item 13, a minor mental disorder, is 2 to 10 in the case of item 12 or 0 to 1 in the case of item 13.  An example of a mental disorder falling within item 13 is one with a PIRS rating between 0 per cent and 3 per cent which would include the assessment by Dr Estensen for the plaintiff.  Mr Morgan assessed the plaintiff’s PIRS rating at 7 per cent when he examined her in September 2004 but did not nominate a rating a year later.

65. Mr Lynch submitted that the plaintiff’s highest psychological injury, although no longer extant would place her in item 12 “moderate mental disorder” with an ISV rating of 2 to 10. An example of an injury under that item is a mental disorder with a PIRS rating between 4 per cent and 10 per cent. Item 13, a minor mental disorder, gives an example of the injury of a mental disorder with a PIRS rating between 0 per cent and 3 per cent. Dr Estensen assessed the plaintiff’s PIRS rating at 1 per cent in his first report and 0 per cent in his second report. He was not required for cross-examination.

66. I conclude that the dominant injury is the injury sustained by the great toe and that item 153 best describes the plaintiff’s condition. The ISV should initially be at the top of that range, namely 7. There needs to be an increase to reflect the plaintiff's psychiatric disorder.

67. Dr Estensen's PIRS of 1 per cent reducing to 0 per cent was not challenged yet it does not truly represent the difficulties experienced by the plaintiff in the period from finally realising that she could not work as a kitchen hand culminating in her attempted suicide in May 2005.  Mr Morgan’s PIRS of 7 per cent for a brief period supports this conclusion.  Before that she was afflicted with her driving phobia.  She was involved in personal relationship conflicts not necessarily directly attributable to the motor vehicle accident which also darkened her life during this period.  Although the plaintiff has had professional help particularly in dealing with her driving phobia she largely has brought about her own psychological rehabilitation by her relocation and determination to obtain further qualifications.    I consider that an increase of more than 25 per cent to the ISV of 7 is justified to compensate the plaintiff for her pain and suffering and loss of the amenities of life, schedule 3 s 4.

68. Mr Lynch referred to two District Court decisions as assisting in giving effect to the objectives of schedule 4 set out in schedule 3 s 1, namely, promoting:

“(a)consistency between assessments of general damages awarded by courts for similar injuries; and

 (b)similar assessments of general damages awarded by courts for different types of injury that have a similar level of adverse impact on an injured person.”

69. Those cases are Coop v Johnston [2005] QDC 79 and Carroll v Coomber and Anor [2006] QDC 146.  In each of those cases the plaintiff had very widespread and continuing injuries.  In Coop v Johnston the plaintiff suffered a number of injuries the most severe of which was a cervical spine injury which produced neck pain and headaches almost daily, aggravated by activity.  Employment produced an increase in neck pain.  One orthopaedic surgeon assessed her as having a whole person impairment of five per cent.  The plaintiff also suffered a displaced fracture of the nose which had produced minimal deviation.  The plaintiff developed a ganglion on the left wrist which was painful and produced an equivalent of 4 per cent whole person impairment but could be removed surgically.  There were a number of other minor injuries.  The trial judge found the dominant injury was item 16, the nasal fracture, with a maximum ISV of 13 which he regarded as inadequate to reflect the level of impact of all the injuries.  The plaintiff had suffered a great deal of pain and was a young woman.  An uplift to an ISV of 16 was made. 

70. In Carroll v Coomber & Anor the plaintiff sustained very severe bruising associated with the seatbelt, a whiplash type injury to her neck, a lower back injury, serious injury to the right knee, injury to the left shoulder and psychological injury.  Judge McGill found that the bruising was serious and extensive and took months to recover, the neck injury, whilst painful, after extensive physiotherapy resolved, the low back injury was persistent, painful and interfered with function and was assessed at a 3 per cent loss of bodily function.  There was a real loss of function in the shoulder.  The plaintiff’s psychological injury was a post-traumatic stress disorder which reduced to an adjustment disorder with anxiety which his Honour found fell within item 12.  Whilst his Honour concluded that the highest ISV related to the lower back it was a case where the plaintiff had a number of significant injuries and her prospects of psychological rehabilitation were quite low.  He regarded the cumulative effect of her injuries such that an uplift of 25 per cent would not be adequate to reflect the cumulative effect of all of the plaintiff’s injuries and settled on an ISV of 18 to reflect the adverse impact of all the injuries. 

71. Whilst there can be little doubt that the injury to her right great toe has had very serious consequences for the plaintiff, it is made particularly so in the context of her having entered upon employment which, for the first time she found satisfying. That factor together with the serious psychological damage which she sustained, although now largely cured, and that she is a young woman who will have a permanent disability in her foot which will affect many of the things which she enjoyed such as gym work, fishing, camping and bush walking as well as the nature of her employment suggests that an ISV of 12 is not inappropriate to reflect the adverse impact of all of her injuries. Pursuant to s 62(c) of the CLA an ISV of 12 amounts to $13,800 which is allowed for the plaintiff's general damages.

Past economic loss

72. The plaintiff grew up near Beaudesert on a dairy farm. She completed Year 9 at the local school and thereafter was only sporadically employed for wages and, in some cases, wages and keep. Initially she worked casually for a few months in any given year as a cleaner or kitchen hand around south east Queensland. She was a nanny for about a year on a property in far north Queensland and then worked as a roadhouse attendant and similar at Kynuna. It was during this time that she injured her knee dancing and was off work for about three months. The plaintiff received Centrelink payments whenever she was unemployed.

73. The plaintiff commenced employment as a kitchen hand at the Breakfast Creek Hotel on 12 October 2002. As has been mentioned, she enjoyed her work and was well regarded by her supervisor. She returned to work for two periods after the accident between 31 August and 14 September 2003 for which she received $399.00 net and between 15 August and 26 September 2004 for which she received $602.00 net. She has not been in remunerative employment since.

74. Although Dr Burke and Dr English thought that the plaintiff's complaints of pain were not reflected by her orthopaedic injuries and thought she was capable of work at an earlier period, it was accepted that she was disabled particularly by her intolerance to long standing and wearing a closed work shoe from pursuing her occupation as a kitchen hand or any occupation involving heavy physical work. Mr Hoey's report of 13 September 2004 sets out the restrictions on her employment then at 11:

"Whether Ms Clark is successful in her TAFE studies, and ultimately in securing employment as a receptionist or secretary remains to be seen.  Suffice to say here that she has no previous training or experience in sedentary clerical or sales occupations.  She has ongoing occupational restrictions that limit her capacity for standing and walking, and she now has a history of a compensation claim (potentially a very large barrier to the securing of commercial employment)."

He mentioned her neck injury in a previous motor accident as a compounding restriction in occupations which required the holding of the head and neck in fixed postures such as desk work.  With her lack of training in sedentary occupations he regarded her employment outlook as quite bleak. 

75. As has been discussed, the plaintiff's personal situation has greatly improved by her relocation to semi-rural northern New South Wales and her decision to complete the Business Certificate III at the Lismore TAFE has increased her opportunity of employment. She is desirous of obtaining work and may well do so. Whilst Mr Hoey mentioned restrictions on employment availability for those known to have previous compensation claims the plaintiff did undertake several positions after she had made successful compensation claims in the past noting that they were not, as this is not, work-related claims.

76. The plaintiff has made two serious attempts to return to work and her past economic loss ought not to be reduced on the basis that she could have returned earlier to some form of remunerative employment. Counsel have agreed that the plaintiff's average weekly after tax earnings at the Breakfast Creek Hotel in the 27 weeks prior to the week of her accident were $466.29. There have been 174 weeks since the accident so that the plaintiff's possible earnings were $81,134.46. The plaintiff actually earned $1,001.00 after tax in that period from working which reduces the amount to $80,133.46. As Mr Grant-Taylor has submitted, it is likely that the plaintiff would have taken holidays in the pre-trial period although as a casual employee she would not have been entitled to paid leave. She may not have taken the usual four weeks per annum but may have, from time to time, taken some weeks off and/or taken fewer shifts in any given week. It is, I would suggest, nonetheless, appropriate to assume the standard four weeks leave. The period since the accident is three and a quarter years. I propose to deduct 12 weeks to represent unpaid holidays over that period reducing the amount by $5,595.48, making a notional net income of $74,537.98.

77. Mr Lynch submitted that there should be no discounting of the amount which the plaintiff might have earned had she remained in employment at the Breakfast Creek Hotel doing the maximum available shifts for the whole period to judgment. This, he submitted, was because the plaintiff for the first time had employment within her skills and which gave her a satisfactory social life. Mr Grant-Taylor, on the other hand, pointed, with some justification, to the plaintiff's pre-Breakfast Creek Hotel employment history and earnings which were, by and large, dismal. He further submitted that the onset of low back pain might have reduced the plaintiff's capacity for full-time casual work into the future. Whilst it is not suggested that the back pain was caused by the motor vehicle accident, there is no evidence to support a conclusion that she would have been likely to experience back pain had she not been injured. No organic basis for it has been proffered, the tests show it is not functional whatever the plaintiff might believe, and the suggestion of Dr English that it relates to the plaintiff's excessive weight and general unfitness seems a reasonable explanation. The plaintiff's own evidence that she was less heavy (90 kilograms) prior to the accident and was a regular attender at a gym and led an active life was not challenged. There is, therefore, no basis for assuming the onset of low back pain had there not been a motor vehicle accident.

78. Mr Grant-Taylor submitted that the cost of travelling to work ought to be deducted as an outgoing necessary for the realisation of earning capacity, Delaney v Shepherd & Anor [2000] QCA 107 at [5].  Exhibit 13 demonstrates the distance to and from the plaintiff's residence and her work, being 16.17 km.  At $0.50 per km for four days per week for 48 weeks per year Mr Grant-Taylor's calculation of $4,992.00 was not challenged.  Many people take the opportunity to do non-work related tasks when travelling to and from employment to save making other journeys either to save fuel or effort or both and that deduction ought to be allowed but modified to $3,000.00.  The amount is thereby reduced to $71,537.98.

79. It seems unrealistic to assume maximum employment at the Breakfast Creek Hotel or some similar employment to judgment. The pattern of the plaintiff's past cannot be entirely ignored. I propose to discount the plaintiff's past possible wages by 20 per cent to recognise the possibility that the plaintiff may not have remained in this employment as a full-time casual but may, for reasons personal to her, moved or changed employment or reduced her hours from time to time (additionally from the 12 weeks notional holiday periods). This reduces the $71,537.98 to $57,230.38 for past economic loss.

80. The plaintiff received fortnightly payments under her private income protection policy of $44,078.49 ($46,417.42 less medical and rehabilitation fees of $2,391.93). She is obliged to repay the payments for income deprivation to the insurer under the subrogation provisions in the policy, exhibit 16. The medical and rehabilitation payments do not fall within that provision. Those amounts for wages should not, therefore, be brought into account consistently with the principles enunciated in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569. 

Interest

81. The plaintiff received fortnightly Centrelink payments after her income protection policy payments ceased. Those payments, according to Mr Lynch's calculations derived from Exhibit 4 at 248-55, after tax to 20 January 2006, were $14,827.66. The plaintiff said she received $506.00 net per fortnight from Centrelink. There are 16 completed fortnights to judgment. That amounts to $8,096.00. The sums representing wages to be deducted from the past loss of income of $57,230.38 for the purposes of interest are $44,078.49 (insurance policy payment) plus $22,923.66 (Centrelink payments) and amount to $67,002.15. Accordingly, since the plaintiff did not sustain any loss by virtue of not being in receipt of earnings from her own endeavour there is no entitlement to interest.

Past superannuation benefit

82. The employer's superannuation contribution rate is agreed at 9 per cent and on the plaintiff's past loss of income - 9 per cent x $57,230.38 is $5,150.73.

Fox v Wood Damages

83. The plaintiff was given leave, which was unopposed, to include a claim for the tax instalments paid on her behalf by the insurer whilst in receipt of income protection fortnightly payments. These payments were in the amount of $9,248.68 which the plaintiff is obliged to refund to the insurers. They may be recovered as damages in accordance with the principle in Fox v Wood (1981) 148 CLR 438.

Loss of future earning capacity

84. Ms Venning, the catering manager at the Breakfast Creek Hotel, whose evidence was accepted by both parties said that a permanent casual such as the plaintiff would work a 35 hour week made up of 25 hours during Monday to Friday at $17.30 per hour and five hours each on Saturday at $20.77 per hour and Sunday at $24.23 per hour. Such employees were offered the higher paying weekend shifts. I accept Mr Grant-Taylor's submission that since the plaintiff would receive no holiday pay or sick leave a 48 week should be the basis of calculations to obtain the plaintiff's present putative net weekly income. On possible net earnings of $24,997.00 that is $497.42.

85. Both parties agree that a further two years ought to be allowed so that the plaintiff can complete her business study and re-train for employment suitable for her skills and physical limitations. Mr Grant-Taylor submitted that a discount of 35 per cent ought to be applied to those two years as to the past post-accident income. Thereafter, he submitted, she should be allowed an amount of $75.00 per week for the rest of her working life to age 65 years discounted at 5 per cent. The ensuing total he would further discount by 25 per cent for the unlikelihood that the plaintiff would have maintained steady employment because of her low back pain and for savings in not travelling to work on a regular basis. He would allow $91,470.00 for future loss of earning capacity.

86. Mr Lynch allowed for loss of two years earnings on a 52 week year - which I have concluded does not reflect the reality of her casual employment status. For the future he submitted that the plaintiff will be limited to part-time or casual employment. Mr Lynch submitted that the plaintiff would suffer impairment of her pre-accident earning capacity of about 50 per cent which he calculated at $270.00 net per week. He accepted that the figure to age 65 of $272,430.00 needs to be discounted for the usual contingencies and the plaintiff's unrelated medical conditions as well as the positive contingency that she may obtain better paying work than predicted. He would discount that sum by 25 per cent and makes the claim of $204,000.00 for the plaintiff's future loss.

87. There are great difficulties in predicting the future for this plaintiff. The success or otherwise of her re-training cannot be known. At the time of trial she seemed positive about her prospects for the future but she has been out of the workforce for a very long time and it might be thought that she is not well placed by her location to be exposed to much suitable work although there was no evidence about the availability of work in or around Larnook. However, as has been noted, the location has provided beneficial effects on the plaintiff's general wellbeing, and she has been prepared to travel to Lismore for TAFE classes.

88. Neither counsel submitted that the plaintiff's future loss fell to be calculated by reference to s 55 of the CLA although Mr Grant-Taylor's $75.00 per week seems to fall into that category.  I accept Mr Lynch's submission that the likely employment future for the plaintiff to age 65 will see her employed for about half of that time and that the plaintiff has suffered an impairment of her pre-accident earning capacity of about 50 per cent due to her inability to undertake physical work of the kind she had engaged in the past, and her limited educational attainments and untested capacity for office type employment.  That represents a loss of half of $497.42, namely, $248.71 per week to age 65 years. 

89. The plaintiff is 26.5 years of age. The multiplier for 38.5 years on the 5 per cent tables is 906 and deferred for two years is 906 -99.4 = 806.6. The calculation gives an amount of $200,609.48. Mr Lynch would discount that figure by 25 per cent to represent the non-compensable vicissitudes of the plaintiff's future life. I am of the opinion that the plaintiff's past employment history and her past numerous negative experiences would suggest the discount be 35 per cent.

90. Adding the loss of two years of $49,443.55 to the deferred future loss gives a figure of $250,000.53. Discounting that figure by 35 per cent gives a figure of $162,500.34 which I would allow for the plaintiff's loss of future earning capacity.

Future superannuation loss

91. When this is calculated at the agreed amount of 9 per cent a figure of $14,625.03 is reached which is allowed.

Past care

92. Pursuant to s 59(1) of the CLA damages for gratuitous services are not to be awarded unless the services are "necessary" and the need for them arises solely out of the injury in relation to which damages are awarded and:

"(c) the services are provided, or are to be provided -

1. for at least 6 hours per week; and

2. for at least 6 months."

It is accepted that s 59(1)(c) imposes a double threshold – the plaintiff must have required or will require the services for at least six hours per week and for at least six months.  The question is whether, having crossed that threshold the plaintiff must continue to have a need for assistance for at least six hours per week to recover damages.

93. Section 59 of the CLA replaced an analogous provision, s 54 of the Personal Injuries Proceedings Act 2002 when the CLA was introduced in 2003.  Section 54 provided that damages were not to be awarded for gratuitous services;

"(1)… unless -

1. the services are necessary; and

2. the need for the services arose solely out of the personal injury arising out of the incident.

(2)Damages are not to be awarded for gratuitous services if the services are provided, or are to be provided -

1. for less than 6 hours per week; and

2. for less than 6 months.

. . ."

94. The Court of Appeal in Grice v State of Queensland [2005] QCA 272 agreed with the trial judge who had interpreted that legislation literally and concluded that the plaintiff was only disentitled to damages for gratuitous services under s 54(2) if both (a) and (b) were met.  The court was confronted with a second reading speech which was contrary to the literal meaning of the section which suggested that either (a) or (b) would disqualify a plaintiff.  The court considered New South Wales decisions in respect of not dissimilar legislation but concluded that the legislative history of the New South Wales provisions together with the extrinsic material and objects of that legislation precluded reliance being placed on New South Wales decisions, particularly when the Queensland provision was clear as to its meaning, McMurdo P [9-21]; Williams JA [42].  Their Honours noted the replacement of s 54 with s 59 of the CLA as "containing an even more restrictive approach".

95. Judge McGill in Carroll v Coomber and Anor considered whether s 54(1)(c)(ii) operates as a continuing threshold.  His Honour accepted the plaintiff's submission that if gratuitous services had been or were to be provided for at least six hours a week for at least six months that was sufficient compliance with the section and damages for gratuitous services could be recovered if thereafter less than six hours a week were provided, [63] and [66-67].  His Honour concluded that the "natural reading  of the section, particularly in view of the use of the word "unless"” led to this result.  He said at [67]

"If the intention had been that damages for gratuitous services would be awarded only in respect of periods when those services were being provided for at least six hours per week, in my opinion a different form of words would have been applied.  In order for the plaintiff to recover damages for gratuitous care, it is necessary to show that, for a period of six months or more, care for at least six hours a week was necessary; but once that has been achieved, the "unless" clause has been satisfied and this prohibition on awarding of damages for gratuitous services is removed.  Once that occurs, damages are to be awarded according to common law principles, subject of course of the operation of any other relevant provision of s 59".

96. I have some difficulty with this construction. I am unclear what role "unless" plays which makes it determinative of this interpretation. According to the Online Oxford Dictionary "unless" relevantly means a "requirement" or a "proviso". I can see nothing which dictates that if the services are provided for six months and for six hours a week during that six month period the requirement is satisfied and after six months one to five hours per week would be recoverable. The legislative intent, as was discussed in Grice in respect of the Personal Injuries Proceedings Act, was to reform the law about civil liability to enable insurance premiums to be contained.  The CLA is the second tranche of that legislative programme of reform.  It has no articulated object but the Explanatory Notes state:

"The main purpose of this Act is to further facilitate the ongoing affordability of insurance through clarification of some basic principles within the substantive law and sustainable awards of damages for personal injury."

The CLA contains fundamental changes to the law of negligence.  The Explanatory Notes discuss how the object of the legislation will be achieved by the significant changes but do not make reference to s 59. 

97. The Minister's second reading speech on 11 March 2003, Hansard pp 366 and following, emphasises the object of the Act. Mr Welford said that the Act was to create "a circuit breaker to continuing increases in insurance premiums by bringing a rationale [sic] approach to personal injury damages awards". He said:

"The bill does not create any new cause of action.  Indeed, it is not intended to operate as a complete codification of the common law.  Rather, duties and entitlements under the common law remain intact unless specifically excluded or modified by this bill".

It is entirely consistent with the literal construction of s 59(1)(c) that the legislature has intended that only those persons who sustain serious injury or injuries of such a kind that require at least six hours assistance per week may recover damages for that assistance. For those who require less than six hours per week they must do the best they can amongst family, friends and by their own efforts. 

98. On 12 September 2006 I “purported” to give judgment in these proceedings but in these terms:

“HER HONOUR:  In this matter, the order of the Court is that there should be judgment for the plaintiff in the sum of $279,269.49 and I publish my reasons.

Now, Mr Lynch and Mr Grant-Taylor, I am going to do that on the basis that you run your eyes over the calculations so that judgment will not be actually entered until you have done that because while the slip rule can correct errors, of course, it is probably less expensive to do it this way so that is my proposed order.  Is that all right?

MR LYNCH:  Yes, your Honour.  I have no difficulty with that, your Honour.

MR GRANT TAYLOR: Yes, your Honour.  Yes, likewise.

HER HONOUR:  Now, Mr Grant-Taylor, of course, you calculate in terms of days rather than 52 weeks and things like that, so there really may be some differences and I have done it on the basis of 174 weeks, for example, since the accident.  There is a fortnight for Centrelink payments that is almost complete but not quite, so I have ignored that fortnight.  In other words, there is a lack of absolute precision in the figures, and if you want to re-jig them on that basis feel free; or if there are any errors about the percentage rates or anything like that.  Otherwise, what do you want to do about the costs?

…

HER HONOUR:  Perhaps it could be then if you are persuaded that that is an appropriate order that can be made you can notify the Court accordingly.  It is going to be held anyway.  Someone from the Courier-Mail asked my Associate could that person have a copy of the judgment.  I am a bit disinclined to if you are still going to be doing the calculations.  Do you have a view about that?

MR LYNCH:  Perhaps that should be delayed until there is agreement between all the parties and the judgment has been entered.

HER HONOUR:  Yes.

MR GRANT-TAYLOR:  Likewise, your Honour.”

99. Whilst counsel were considering the arithmetical calculations and Mr Grant-Taylor was obtaining instructions about costs the Court of Appeal handed down its decision in Kriz v King [2006] QCA 351 on 15 September 2006.  The court was confronted with the competing interpretations of s 59(1)(c) discussed above.  The President with whose reasons Jerrard JA and Helman J agreed said:

“[17] The ordinary meaning of the words in s 59(1)(c) lends itself to either of the interpretations urged upon this Court. There are sound arguments for both competing contentions. It is common ground that the Second Reading Speech of the Act and the Explanatory Notes to s 59 provide no assistance in resolving the ambiguity. It seems clear enough that the legislature intended in enacting Ch 3 of the Act which contains s 59 to place statutory limits on the common law entitlement to damages, including in s 59 damages for gratuitous services, so that these are not awarded in the less significant cases. That legislative intent is however equally consistent with the appellant's and the respondent's competing interpretations of s 59(1)(c).

[18]  Because s 59 restricts a claimant's previously unfettered common law right to seek damages for gratuitous services, the section should only be regarded as limiting that common law right if it does so clearly and unambiguously: Potter v Minahan; Bropho v Western Australia; Coco v The Queen and Grice.For that reason s 59(1)(c) should be interpreted in the way which least diminishes a claimant's common law rights to damages for gratuitous services. Giving the words their ordinary meaning and applying that important principle of construction, it is my view that s 59(1)(c) of the Act has the effect that damages for gratuitous services are not to be awarded unless the services have been provided or are to be provided for both six hours per week and for at least six months; once that threshold is met then damages for gratuitous services can be awarded even if the services thereafter are provided or are to be provided for less than six hours per week.”

100. I then sought further submissions from counsel as to the effect of the decision in Kriz on the present proceeding.  Mr Lynch submitted that since judgment had not been entered the judgment should be amended to reflect the construction of s 59(1)(c) given by the Court of Appeal in Kriz.  Mr Grant-Taylor submitted that there is no power to do so because the parties were only invited to review the arithmetical calculations so as to avoid the expense and inconvenience of returning to court to correct any such errors under the “slip” rule, UCPR 388.  He submitted that my calculations were as a deliberate decision to prefer one construction of s 59(1)(c) over the other – and not an attribute of the “inadvertence” necessary for the application of the “slip” rule.  He submitted further that the plaintiff’s only remedy is by appeal which would likely be unsuccessful because the additional sum which he accepts, would not be a “substantial” alteration of the total award, Elford v SA High General Insurance Company Limited [1994] 1 Qd R 258 at 265 since it would result in an increase in only about 1.5 per cent of the total award.  This is an unattractive outcome.  Mr Grant-Taylor does concede that if no judgment of the court was, in fact, pronounced then the court is not in any sense without the power to amend the reasons and accordingly the calculations of damages.  It was not said by either side that any of the arithmetical calculations were required to be changed apart from those governed by s 59(1)(c) as a consequence of the decision in Kriz.

101. No judgment has been endorsed on the court file or in any way entered in the records of the court. In Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] 4 VR28 Chernov JA with whom Charles and Vincent JJA agreed made observations about changes to a judgment between draft and final reasons.  It is correct that my reasons were not described as draft and were not intended to be so.  I accept that a more felicitous expression, such as, “These are my proposed orders and reasons”, would have avoided any doubt.  Neither counsel on 12 September or earlier indicated that there was then reserved since May 2006 an appeal in the Court of Appeal which would almost certainly pronounce upon the construction of s 59(1)(c) of the Civil Liability Act 2003.  It is likely that had that occurred I should have held the judgment pending the Court of Appeal handing down its judgment. But the principle discussed by Chernov JA is, nonetheless, applicable,

“49.  … In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons - Smith v. Australia and New Zealand Banking Group Ltd; Sherpa v. Anderson; Mulvena;Re Harrison's Shares Under a Settlement. But once judgment is perfected the judge cannot, in substance, re-write the given reasons so as to give different reasons for the decision or, in the words of Willmer, L.J. in Bromley v. Bromley (No.2), "put a different complexion on the issue in dispute". In Nakhla v. McCarthy Woodhouse, J. said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Bank of Nova Scotia v. Province of Nova Scotia, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court.”

102. Facts closer to the issue here occurred in In re Harrison’s Share under a Settlement (1955) Ch 260 where oral orders were withdrawn following a decision of the House of Lords which overruled the authorities on the basis of which those orders had been made.  On the appeal from this decision to withdraw the orders, re-list the matter for further argument and make different orders the Court of Appeal said at 283-4:

“When a judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed.  This control must be used in accordance with his discretion exercised judiciously and not capriciously.”

The court endorsed as “right” that the judge below recalled the orders orally pronounced when he became aware that the law as declared by a superior court was not as he pronounced it.  This decision was cited with approval by Mason CJ in Autodesk Inc v Dyason (1993) 176 CLR 300 at paras 3 and 4 as an example of circumstances where a court may re-open a judgment.  The Court of Appeal in Queensland Pork Pty Ltd v Lott [2003] QCA 271 held that the court had an inherent power to correct the judgment in a case that did not meet the requirements of rr 388 or 667(2) referring to Autodesk.  Here the order not having been filed, r 667(1) is, in any event, available.

103. The proper administration of justice requires that a judge gives judgment according to law. The Court of Appeal has pronounced the law and accordingly the construction given in Kriz of s 59(1)(c) prevails. I have, however, retained in these expanded reasons my original reasons on this issue so that the change is transparent. 

104. The plaintiff has made inconsistent claims for past care given to her by friends, family and those with whom she was in a more intimate relationship in her statements of loss and damage signed and dated 28 August 2005, exhibit 6, and her updated statement of loss and damage dated 19 July 2006, exhibit 7. When the plaintiff consulted with Mr Hoey she gave him the details of the care that she had received which he set out in a table in his report dated 9 January 2006, exhibit 4. The plaintiff told Mr Hoey she had not required assistance from any other person arising from her disability from February 2005. Post-accident and for quite some time the plaintiff was completely disabled by the injury to her toe and, for a time, her other injuries. The following is the schedule of care set out in Mr Hoey's report which seems to be accepted as the most reliable source of information:

105. Mr Hoey indicated that the plaintiff has a need for domestic assistance in the future for three hours per week. If that assistance was provided on a commercial basis the relevant award, the Queensland Contract Cleaning Industry Award (Southern Division Eastern District) casual, is $18.79 per hour. There was no evidence as to the rate at any earlier period. The plaintiff said that much of her past care was provided gratuitously. While she was in receipt of income protection payments she paid friends in the form of petrol money and other purchases to do domestic tasks for her. She made a claim of $40 per week in her statement of loss and damage as paid but it does not necessarily relate to all the gratuitous assistance. Mr Grant-Taylor submitted that observations made by the Court of Appeal in Goode v Thompson [2002] QCA 138 particularly at [25] and [26] suggested that a lesser amount of $15.00 per hour should be allowed.  But those comments were made in the context of an administration charge and whether the services could be provided directly from a large pool of unskilled unemployed, see also Kars v Kars (1995) Australian Torts Reports 81 – 369 at 62, 817.   The rate of $18.79 per hour is the award rate; whether or not services could be provided at a lesser rate was not explored and there is no reason to reduce it accordingly.

106. It is likely that some three years ago the award rate was less. Whilst Mr Hoey was not cross-examined as to what the commercial rate was three years ago nonetheless it is not inappropriate to seek to compensate in a more realistic way the assistance which was rendered to the plaintiff. I accept Mr Grant-Taylor's submission of $15.00 per hour for the past. Mr Hoey is an experienced occupational therapist and has accepted the assistance provided around the home to the plaintiff as reasonably relating to the injuries and limitations on her. The number of hours from 8 May 2003 until 1 February 2005 is 684.71 and at $15 per hour amounts to $10,270.65 which is allowed.

107. Interest is allowed at 2.705% for 174 weeks being $929.63.

Future Care

108. Mr Hoey has estimated that the plaintiff requires three hours of assistance in domestic tasks per week relating to vacuuming and other cleaning and garden and house maintenance. Apart from occasional assistance from neighbours since moving, the plaintiff said she manages herself with all domestic tasks albeit slowly. Mr Lynch has submitted for a global sum of $10,000.00 which is less than $8.00 per week on the 5 per cent tables to age 70. This takes account of the possibility that the plaintiff may undergo surgery to stiffen the interphalangeal joint in her toe and will require more home help as a consequence until she recovers. Mr Grant-Taylor submitted that since the plaintiff has not had help, except sporadically, since February 2005 she has demonstrated no future need.

109. I think it likely that the plaintiff will avail herself of an arthrodesis of the interphalangeal joint as mentioned by Dr White. She will then require an increased level of care. Dr White postulated the operation in three to five years with a convalescence period of two to three months. On the plaintiff’s past needs after the accident and after surgery it is appropriate to allow 16.5 hours per week for six weeks (see Mr Hoey’s table for 14 May 2004 to 24 June 2004) at $18.79 per hour. I will assume that the plaintiff will require a further five hours per week care for 31 weeks as she did in 2004. I will assume that this need for assistance will be required in four years and will discount it further for the possibility that the plaintiff may not have this operation. A sum of $3,100 is allowed for future care.

Future medical treatment

110. Mr Lynch has submitted for the inclusion of vocational rehabilitation as recommended by Mr Hoey. I was not persuaded that any particular or even general rehabilitation had been identified which the plaintiff might access. She seemed content to progress through the TAFE course at Lismore.

111. I accept that there is a significant chance that the plaintiff will have an arthrodesis to her toe joint. Dr White suggested that this might occur in three to five years at a cost of $2,000.00. Allowing that cost deferred for four years on the 5 per cent tables gives a figure of $1,550.00 which I will discount further to $1,400 to reflect the possibility that the plaintiff may not have this procedure.

Future medication

112. The plaintiff claims $13.20 per month for future medication. She presently uses Panamax ($6.00 per month), Panadeine Forte ($3.60 per month), and an anti-inflammatory drug, Mobic, ($3.60 per month) amounting to $13.20 per month. Much of that medication is related to her foot pain although her back pain intrudes. I propose to allow $10.00 per month reduced to reflect the non-compensable element. It is unlikely that the plaintiff's need for analgesics will abate but the chance that it will should be reflected in a discount.

The amount of $2.50 per week for 43.5 years (to age 70) on the 5 per cent tables using 941.4 as a multiplier gives a figure of $2,353.50.  That should be discounted by 15 per cent and gives a figure of $2,000.48 which is allowed.

Special damages

113. A schedule of the plaintiff's special damages is set out in exhibit 4 at p 2. Mr Lynch agrees that the refund of $2,748.33 to the insurer for medical and rehabilitation expenses should be deducted because a perusal of the policy shows that the obligation to repay via the subrogation clause in the policy relates only to weekly income payments. Mr Grant-Taylor submits that the claim for pharmaceutical expenses in the past should be reduced by one third because of the plaintiff's need to take pain relief for her back symptoms which are non-compensable. In cross-examination he went through the schedule with the plaintiff and it is clear that the back problems emerged only in late 2004/early 2005. It is difficult to untangle the plaintiff’s non-compensable requirements in any precise fashion but I propose to reduce the pharmaceutical expenses of $725.80 by one quarter which gives a figure of $544.35.

114. The amount of special damages are:  

115. Interest is allowed on the sums actually expended* by the plaintiff at the rate of 2.705 per cent for 174 weeks on $1,402.40 and amounts to $126.94.

Summary of damages

That sum should be rounded to $285,260.

Order

117. There is judgment for the plaintiff in the sum of $285,260.

Costs

118. The parties are agreed that because the plaintiff has bettered the offer to settle she should have her costs on the indemnity basis.

Order

119. The second defendant pay the plaintiff’s costs of and incidental to the proceedings on the indemnity basis.