Etemovic v Gold Coast City Council
[2009] QSC 185
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- Notable Unreported Decision
- Etemovic v Gold Coast City Council[2009] QSC 185
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Etemovic v Gold Coast City Council[2009] QSC 185
Etemovic v Gold Coast City Council[2009] QSC 185
SUPREME COURT OF QUEENSLAND
CITATION: | Etemovic v Gold Coast City Council [2009] QSC 185 |
PARTIES: | MELISSA ETEMOVIC |
FILE NO: | BS 2633 of 2008 |
DIVISION: | Trial Division |
PROCEEDING: | Trial |
DELIVERED ON: | 16 July 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27-28 April 2009 |
JUDGE: | Mullins J |
ORDER: | The proceeding is dismissed |
CATCHWORDS: | TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL – where plaintiff struck by jet ski under control of a lifeguard – where jet ski stationary prior to incident to complete a rescue – where jet ski not under power at time of incident, but moved when hit by a wave – where jet ski in proximity to groups of swimmers in an area which was neither flagged nor a gazetted bathing reserve – whether evasive action could have prevented the incident – whether the incident was caused as a result of a breach of duty of care Civil Liability Act 2003, s 55, s 59 Kriz v King [2007] 1 Qd R 327, considered |
COUNSEL: | ME Pope for the plaintiff KS Howe for the defendant |
SOLICITORS: | Derek & Dwyer for the plaintiff O'Keefe Mahoney Bennett for the defendant |
- MULLINS J: The plaintiff was struck by a jet ski that had been under the control of a lifeguard, Mr Cahill, at Currumbin Beach on 1 January 2005. The lifeguard was employed by the defendant. The plaintiff claims damages for personal injuries from the defendant. The defendant denies liability.
The plaintiff’s evidence about the incident
- The plaintiff was born in 1987. At the time of the incident she was studying full time for a Diploma of Tourism and Management. On New Year’s Day she travelled with family members and friends for a picnic at the barbecue area at Currumbin Beach. The plaintiff and some of the men in the group walked from the barbecue area to the beach and went into the water for a swim. They went swimming in that area of beach that is known as Currumbin Alley.
- It was the plaintiff’s case, as pleaded, that she was swimming in a “flagged” area and was between the flags. She identified the flags as yellow and red flags. She was shown a photograph (exhibit 4) of Currumbin Alley which showed two signs, each of which stated “Danger No Swimming” with a red line drawn through a person swimming and on top of each sign was a red flag. The plaintiff said that they were not the flags that were on the beach on the day of the incident.
- The plaintiff had entered the water with her father, her brother-in-law Suad Agic, her relatives Salem Kapur and Dennis Kapur, and family friend Meho Hodzic. She was in the water up to the level of her hip. She turned around to her father and said that she was going out further. She took a step or so to go out further when she heard one of her group yell out in Bosnian “Move, get out of the way”. She saw the jet ski and tried to run in the water, but she was struck in the lower back by the jet ski and knocked underneath the water. She was not under the water for very long. She had been in the water only about five minutes when she was struck. Her father helped her out of the water and took her back to the barbecue area.
- The plaintiff did not know whether or not there was a sled at the back of the jet ski. Although the plaintiff had not referred to this in her evidence-in-chief, she did say in cross-examination that she saw the jet ski operator jump off the jet ski before it hit her. She explained (at Transcript 1-25):
“... as I was trying to get out of the water, running out of the water but you can’t, I turned my head to see how much further I had to go before a jet ski collided into me and when I turned my head to see that, that is when the man on the jet ski jumped off and let the jet ski come – well, how can you say – not running but just let it collide right into me.”
- The plaintiff said (at Transcript 1-34) that the jet ski hit her, as it was coming back into shore. The plaintiff did not agree (at Transcript 1-38) with the suggestion put to her in cross-examination that the contact between the jet ski and her was very slight.
- The plaintiff did not require medical attention after the incident. She was shocked and also felt pain in her lower back. She treated the pain with Nurofen, Voltaren, Deep Heat cream and heat patches. She did not seek medical treatment until she consulted general medical practitioner, Dr Mahomed, on 18 January 2005. She did not have any physiotherapy treatment. The plaintiff said that the back pain and headaches from which she suffered after the incident interfered with her study and it took her six months longer to finish her course. At the time of the trial she described continuing pain each day which she said was 7 to 8 on a scale of 10 (with 10 being the worst pain). The plaintiff frequently used her sick leave and annual leave to take time off work, because of her back pain. Her back pain stopped her from doing the washing and vacuuming and other heavy duties at home.
The plaintiff’s other witnesses to the incident
- Each of the five men who were in the water with the plaintiff at the time she was hit by the jet ski gave evidence for the plaintiff. They all spoke in the Bosnian language. The plaintiff’s father, Mr Agic and Mr Salem Kapur gave evidence through an interpreter.
- The plaintiff’s father said that there were two red and yellow lifeguard flags on the beach. When the plaintiff’s father was asked what he saw before the jet ski hit the plaintiff, he said (at Transcript 1-59):
“I saw the jet ski, as I said, passing nearby us. He made one circle round. When he was doing the second one he hit her.
...
When he was doing the second turn he hit her and jumped off from the jet ski, the lifeguard. He fell off from the jet ski – jumped off, I apologise, from the jet ski.”
- Mr Etemovic said that the jet ski was not towing a board or sled. He explained that he did not actually see the lifeguard jump off the jet ski, but did see the impact and noted that the lifeguard was out of the jet ski when that occurred. He said that the jet ski was travelling from the direction of the ocean. He saw the jet ski when it was further from his group and then saw the jet ski when it hit his daughter. When it was suggested to Mr Etemovic in cross-examination that just before the jet ski came into contact with his daughter, it had been stationary, he responded (at Transcript 1-66):
“No, he wasn’t stationary when he hit her, no. How would he have hit her if he was stationary?”
- Mr Agic said that there were red and yellow flags on the beach. Mr Agic saw the jet ski travelling in from the direction of the ocean near Currumbin Rock. He said it was travelling faster than you can walk and that he saw the jet ski “coming on the side” and saw that it hit the plaintiff’s back and that she was under the water. Mr Agic did not see the lifeguard get off the jet ski, but did see that the lifeguard was out of the jet ski, when the jet ski hit the plaintiff. Mr Agic was not sure whether the jet ski was towing a board or raft. Mr Agic stated (at Transcript 1-77):
“All I saw is just before he hit her that he lost control or not I don’t know, but he had a bit of angle left and he hit those waves, you know, water and then he hit Melissa.”
- Before the plaintiff was hit, Mr Agic had heard somebody in their group saying “Watch it, you are not to be hit by it”, but Mr Agic did not know who said it.
- Mr Salem Kapur saw the jet ski travelling from the ocean in the direction of Currumbin Rock. He did not see the jet ski hit the plaintiff, but heard screaming from the plaintiff. At that stage there was nobody on the jet ski. He said there were flags, but he could not recall what colours they were.
- Mr Dennis Kapur saw the jet ski travelling from the vicinity of the Currumbin groyne towards the beach and he estimated that it was travelling between 40 kms/hour to 50 kms/hour and was coming past the group towards the sand. He did not see the collision, but heard the screams of the plaintiff, when he looked around he saw the jet ski on the water, but no-one was on the jet ski. Mr Dennis Kapur did not see a sled or board at the back of the jet ski. Mr Dennis Kapur denied that the flags on the beach that day were red flags on top of signs that stated “Danger No Swimming”, as shown in exhibit 4.
- Mr Hodzic saw the jet ski coming from the direction of Currumbin Rock and that it was travelling very fast and he then saw the lifeguard jump or fall down or something happen to him and the jet ski kept going and hit the plaintiff. Mr Hodzic did not know what happened to the rider, but described it in terms that he fell down or jumped. He said there was no board on the jet ski. He said that when the rider fell down or jumped, the jet ski was not going as fast as it was when he was driving, but it was “going” and hit the plaintiff. Mr Hodzic said the flags on the beach that day were not the type of flags that were shown in exhibit 4.
The defendant’s witnesses
- Mr Cahill had lived in the local area around Currumbin all his life and had been involved in surf lifesaving from the age of six years. He started working casually as a lifeguard with the defendant in 1997 and was employed permanently as a lifeguard from October 2005. He had been patrolling Currumbin Alley since 1999 or 2000. He said that on 1 January 2005 there were danger signs with red flags, but no red and yellow swimming flags were erected. Although Currumbin Alley was not a patrolled swimming beach, the defendant rostered lifeguards for patrolling the beach, because so many people swam there, despite the danger signs. Mr Cahill recorded in the log for the day of the incident that there were 2000 swimmers on the beach which was a busy day.
- Mr Cahill was the only lifeguard on duty when the other lifeguard had his lunch break between 1pm and 2pm. On that day the outgoing tide was between 11:35am and 6:15pm and the “Danger No Swimming” signs had been erected when the tide turned at 11:35am. He explained that he had spotted two boys on boogie boards that had been swept into the channel and were being swept out to sea by the outgoing tide. He went out on the jet ski to pick up the boys who were exhausted, putting them onto the sled on the back of the jet ski. When returning to shore, he tried to find the biggest gap between the people who were swimming in the water and he brought the jet ski into an area that was about 20 metres between two groups of swimmers (which was the largest gap available) and turned the jet ski around, so the boys could hop off the back of the sled. He did not take the jet ski to the beach, as he would not have been able to launch the jet ski, if it were needed for a rescue, without the assistance of another lifeguard. The jet ski was facing back out to sea in a north west direction. He turned to make sure the boys got off the jet ski and spoke to them about where not to swim. The jet ski was idling while he was talking to them and was about 10 to 15 metres from the shore.
- When Mr Cahill had finished talking to the boys, he turned around and immediately a wave hit the jet ski which swung it around, so that it was pointing in more of a westerly direction parallel to the beach. He then described how the collision occurred (at Transcript 2-26):
“I’ve spotted that the jet ski is heading towards a group of people. I’ve put my left hand on the right handle bar, jumped off the ski and with my right hand grabbed the side runnel of the jet ski and was unable to stop the ski. It made its way towards the group. I am uncertain – at that point in time I was uncertain of any collision until a gentlemen started abusing me and I asked if everyone was all right. He said that his daughter had been hit by the jet ski. From the position I was in holding the ski I couldn’t see any impact or what area the impact was to. I apologised to his daughter and the man the whole time was still abusing me and irate. Other people in the group said it would be best if I just moved away so I got back on the jet ski, got it clear, got back on the jet ski, put the kill switch back on and took the jet ski back to the anchor and anchored it.”
- Mr Cahill had got off on the seaward side of the jet ski. He had jumped off to try and pull the jet ski up, before it reached the group of swimmers. He explained that the kill switch was connected to his right wrist which went to the right runnel of the jet ski and it disengaged the motor, when he got off the jet ski.
- Mr Cahill wrote up the incident in his log for the day (exhibit 10):
“Brought 2 males in back to shore, instructed them to keep clear of deep water channel. Turned ski around to head back out to channel in a westerly direction when a wave hit ski. Spun it around, I jumped of, but could not stop ski. Ski travelled 6-8m and hit a girl. I apologised several times. She said she was alright. Her father was very irate.”
- In cross-examination, Mr Cahill conceded (at Transcript 2-28) that he had misworded the incident in the log, because, as he remembered it, the jet ski was facing towards Surfers Paradise when he dropped the boys off the back of the mat and that it was after it had been hit by the wave that it spun into a westerly direction. He explained that the jet ski was idle while he was talking to the boys and, because it was not under power, it moved when struck by the wave.
- Mr Alan Champkin was on the beach at Currumbin Alley on the day of the accident. He had been paddling his surf ski and saw the incident involving the jet ski and the plaintiff. He had seen the jet ski towing a mat on the back with one or two people on it and observed that it stopped. As the jet ski approached the beach, he noticed three people walking towards the water. He saw the lifeguard turn the jet ski around, so that the bow was back out towards the waves. Mr Champkin said that the lifeguard got off, and a wave came and hit the jet ski, so that it moved sideways a fraction and that is when he saw the jet ski hit the woman in the shin and she fell over. Mr Champkin’s attention was attracted by one of the men in the group abusing the lifeguard. That is why he gave the lifeguard his name and contact details. Mr Champkin said that there were no red and yellow flags on the beach and that it was a “no swimming” area.
- Mr Warren Young, the defendant’s chief lifeguard, stated that Currumbin Alley had never been flagged for swimming by red and yellow flags, because it is not an area that is secure enough for people to swim safely. He was able to produce a copy of the designated bathing reserves (exhibit 7) which shows that there is a bathing reserve at Palm Beach and another at Currumbin Beach which are either side of Currumbin Alley. Because a lot of rescues have been required at Currumbin Alley, lifeguards are rostered during certain periods for Currumbin Alley. That was verified by a card produced by the defendant as part of the “Surf Safety Awareness Program” (exhibit 9) which showed that Currumbin Alley was a patrolled beach between November and April. Mr Young had been with the defendant for 36 years and to his knowledge there have never been any red and yellow flags at Currumbin Alley. He estimated the weight of the jet ski that was used by Mr Cahill as between 500 and 700 kilograms. Mr Young explained that the kill switch on the jet ski is attached to the wrist of the rider, so that as soon as the rider takes his hand away from the handle, the kill switch disconnects the engine of the jet ski.
Findings on liability
- At the trial, leave was given to the plaintiff to amend the statement of claim by inserting an additional particular of negligence, that Mr Cahill had failed to control the jet ski. That made the particulars of negligence, as follows:
- Riding the personal watercraft within a flagged area;
- Failing to keep any or any proper lookout;
- In breach of s 95 (2) of the Transport Operations (Marine Safety) Regulation 1995 operated the personal watercraft at more than 6 knots within 60 metres of a person in the water at a time when that operation was not exempted by Notification of Exemption Transport Operations (Marine Safety) Act 1994, Transport Operations (Marine Safety) Regulation 1995, issued by the Director (Marine Safety), Maritime Safety Queensland dated 4 June 1998;
- Failing to control the jet ski.
- In response to the amended statement of claim filed on 12 May 2009, the defendant filed an amended defence on 21 May 2009. In summary, the allegations of negligence in the statement of claim are denied by the defendant on the basis that:
- The jet ski was not within a flagged area;
- The plaintiff was not in a flagged area and the area was not a gazetted bathing reserve;
- The jet ski was under the control of Mr Cahill and was not travelling at more then 6 knots, but if it were travelling in excess of 6 knots, it was permitted to do so, as it was involved in an emergency situation and had been used to rescue or aid persons in distress;
- The jet ski was under the control of the operator, but was idling and not operating, when a wave caused the jet ski to move and come into contact with the plaintiff, when it was being used and/or had been used to rescue or aid persons in distress;
- The conduct of Mr Cahill was reasonable and appropriate in the circumstances;
- The event of the wave causing the jet ski to come into contact with the plaintiff was not foreseeable and could not have been prevented by any reasonable conduct on the part of Mr Cahill.
- In the amended reply of the plaintiff that had been filed on 27 April 2009, the plaintiff accepted that Mr Cahill had been involved in bringing swimmers to shore, prior to the incident, as the plaintiff pleaded that “…prior to Steven John Cahill striking her with the water craft he had brought a swimmer to shore using the water craft but that she was struck after that operation was completed and whilst he was travelling back out to sea.” Even though neither the plaintiff nor her witnesses had observed the sled or board on the back of the jet ski and that Mr Cahill had brought in two boys close to shore before the incident, the plaintiff, by this pleading, did not dispute that that was the exercise which had been undertaken by Mr Cahill immediately prior to the incident. In any case, Mr Cahill’s evidence in this trial of the incident and what he recorded in his log to the effect that immediately prior to the incident he had brought two boys close to the shore on the sled on the back of the jet ski is verified to some extent by Mr Champkin and I find that that was the reason that Mr Cahill had ridden the jet ski in towards the shore between the groups of swimmers.
- Although Mr Pope of counsel on behalf of the plaintiff ultimately conceded (at Transcript 2-49) that the only reasonable finding was that the flags at Currumbin Alley on the day of the incident were red flags, and not yellow and red flags, the evidence of the plaintiff and her witnesses (apart from Mr Salem Kapur) that they saw yellow and red flags designating the swimming area where they were swimming at Currumbin Alley is of assistance in assessing the reliability of the recollections of the plaintiff and her witnesses. There is no doubt that the flags that were flying at Currumbin Alley at 1pm on the day of the incident were red flags on top of signs that designated the area a “No Swimming” area and specified “Danger”. That the plaintiff and four of her witnesses have erroneously convinced themselves that they saw yellow and red flags suggests that they have treated their assumptions as their recollections in this respect.
- There are other examples in the evidence of the plaintiff and her father of their rationalisation of the incident and advocacy for her position as victim. When the plaintiff was cross-examined on whether she had any explanation as to how she did not see the jet ski, before she heard the warning from one of her group to get out of the way, she stated (commencing at Transcript 1-21):
“But my point is for me not to have seen that jet ski that jet ski was going too fast for anyone to see it.”
- The following is another example of the plaintiff’s exaggeration in the course of cross-examination (at Transcript 1-27):
“Where does the jet ski come from when you see it?-- That is my exact point, that the jet ski was going too fast in that area that no-one could see it coming. It just came out of nowhere.”
- When Mr Howe was cross-examining the plaintiff on the version of the rescue that had been conducted by Mr Cahill which was accepted in the plaintiff’s amended reply, the plaintiff’s answer was in the nature of advocating her position, rather than giving evidence by what she actually recalled (at Transcript 1-34):
“What about this for a version, that you were struck when the jet ski was heading back out to sea, not coming into the shore?-- No, because he couldn’t have hit me as going out. He hit me as he was coming back in.”
- The following is an example of Mr Etemovic’s rationalisation of the incident by describing what he thought must have occurred (at Transcript 1-68):
“When I suggest the rescue was taking place with the two boys on the back of the board, I suggest you came, your group, near the jet ski.
…
Definitely he was really going very fast, there was no way he could have had someone on the board driving that fast and it definitely he hit her, he could not do that stationary.”
- To the extent that the plaintiff’s witnesses described having observed the jet ski travelling relatively fast prior to the incident, their observations must relate to the route taken by Mr Cahill in travelling on the jet ski out to rescue the two boys or the return trip. There seems to have been a gap in the observations made by the plaintiff’s witnesses, as none of them saw the jet ski manoeuvred into position to allow the two boys to get off the mat at the rear of the jet ski. This is another aspect of the evidence of the plaintiff and her witnesses that has been affected by the assumptions they made about how the incident occurred. Because the lifeguard was riding the jet ski at the speed at which the jet ski was travelling in connection with the rescue of the two boys, when the plaintiff’s witnesses first observed it, they have focused on that action as the reason for the incident. It was submitted on behalf of the plaintiff that Mr Hodzic’s version of the incident was closest to that given by Mr Cahill and that I should accept Mr Hodzic’s evidence. I am not satisfied, however, that Mr Hodzic had kept the jet ski under continuous observation, as he failed to see the sled carrying the boys who were rescued or the boys alight from the sled before the incident. Mr Hodzic seemed to suggest (at Transcript 2-10) that at one point he had gone under the surf, but whether or not that occurred his observations were not complete in respect of the jet ski immediately prior to the incident.
- Mr Champkin had been watching the jet ski perform the rescue and had it under observation at the time these events occurred. Although there is not complete coincidence between Mr Champkin’s observations and the recounting of the events by Mr Cahill in the trial, Mr Champkin was an independent witness whose observations confirm the rescue that preceded the incident. Mr Cahill’s log for the day was a quick note of the incident recorded at a time when he was not anticipating litigation. The difference in detail between Mr Cahill’s log and his evidence at the trial did not dissuade me from accepting Mr Cahill’s evidence at the trial as to the means by which the jet ski came into contact with the plaintiff. I accept Mr Cahill’s evidence at the trial and find that at the conclusion of the rescue, the jet ski moved as a result of the wave hitting the jet ski, when it was not under power.
- The incident involving the wave striking the jet ski and moving the jet ski, so that it came in contact with the plaintiff happened very quickly. The distance that the jet ski moved is unclear. It moved a sufficient distance to bring it into contact with the plaintiff. Although Mr Cahill wrote up the log on the basis that the jet ski travelled six to eight metres before it hit the plaintiff, that was clearly an estimation made in the midst of an incident where he was attempting action to avoid the jet ski hitting the group of swimmers that it was heading towards. Mr Champkin’s observations suggest it was a shorter distance than six metres. That some of the plaintiff’s witnesses saw Mr Cahill jump or fall off the jet ski and the jet ski move to meet the plaintiff and there was time for one of their group to yell out a warning to the plaintiff is consistent with the jet ski moving some metres from its previous stationary position to where it struck the plaintiff.
- An indication of the nature of the impact that occurred is the fact that the plaintiff did not require immediate medical treatment or much treatment or all (apart from medications and creams for the pain). The fact that Mr Cahill was not even sure that there had been a collision between the jet ski and the plaintiff is also consistent with the impact not being significant. The weight of the jet ski and its obvious potential for causing great damage if it collided with a person whilst under power also confirms that it was not under power at the time of the incident and is consistent with the actual impact with the plaintiff not involving much force.
- I therefore find that prior to the wave hitting the jet ski, it was stationary and idling, as it had been manoeuvred into position, so that it was facing in a north-westerly direction, to allow the two boys who had been rescued to alight from the jet ski. The position of the jet ski in proximity to groups of swimmers was justifiable, because the boys had to be returned relatively close to the shore. The rescue had been completed by the time the wave hit the jet ski. The evasive action that Mr Cahill took in jumping off the jet ski and endeavouring to stop it moving into the group of swimmers was all that Mr Cahill could do in the circumstances. It was not suggested by the plaintiff in cross-examination of Mr Cahill that there was any other evasive action that was reasonably able to be taken when the jet ski was hit by the wave, while it was idling.
- On the basis of the facts that are pleaded in the statement of claim, the plaintiff has alleged that the duty of care owed by the defendant to the plaintiff arises as a result of Mr Cahill, as the employee of the defendant, operating a jet ski in the flagged area where swimmers were encouraged to swim. To the extent that the duty of care is based on the presence of both the plaintiff and Mr Cahill in a designated swimming area, the plaintiff cannot prove the existence of such a duty of care when the incident occurred in a beach that was designated with signs advising “Danger No Swimming”. The allegations in the statement of claim are broad enough, however, to allow the plaintiff to pursue a claim for damages for negligence based on the duty of care owed by Mr Cahill as the operator of the jet ski in an area where the plaintiff had entered the water to swim, where despite the designation of the beach at the time as a “No Swimming” area, many others were also swimming.
- Mr Howe of counsel for the defendant referred to many cases dealing with the liability of public authorities with responsibility for beaches and waterways for damages for personal injuries caused in swimming or diving accidents where the negligence that was alleged against the public authority was failure to warn of the risk of injury from swimming or diving at the particular place, such as Vairy v Wyong Shire Council (2005) 223 CLR 422 and Mulligan v Coffs Harbour City Council (2005) 223 CLR 486. As the plaintiff’s claim was not based on a failure to warn her of the risk of injury, the authorities relied on by the defendant were of assistance in relation to general principles of negligence only. There were no particular cases relied on by Mr Pope of counsel in support of his submissions for the plaintiff.
- The scope of the duty of care owed by the defendant to the plaintiff was affected by the fact that Currumbin Alley at the time of the incident was signed as “Danger No Swimming”. It should not have been unexpected by a swimmer entering the water at a beach designated as “Danger No Swimming”, but at which lifeguards were present, that a lifeguard may be operating the jet ski for the purpose of assisting swimmers because of the danger such as a swimmer being caught in the outgoing tide.
- In the circumstances in which the jet ski had been stationary prior to the incident to complete a rescue, there was no negligence whatsoever on the part of Mr Cahill in having the jet ski at that point in Currumbin Alley. The jet ski was not under power. The only particulars of negligence that can have any application to the incident are the allegations that Mr Cahill failed to keep any proper lookout or failed to control the jet ski. Once it is accepted that it was reasonable for the jet ski to be in the position that it was in, even though there were groups of swimmers nearby, the incident occurred as the result of the action of a wave hitting the jet ski, where Mr Cahill was unable to take any effective evasive action that could have prevented the incident. The plaintiff has not shown that the incident in which the jet ski came into contact with her was caused as a result of any breach of the duty of care owed by the defendant to the plaintiff in the circumstances in which both the plaintiff and Mr Cahill were in the water.
- The plaintiff’s claim against the defendant cannot succeed.
Medical evidence
- When the plaintiff consulted Dr Mahomed, he recorded that she described being hit by the jet ski on the back and experiencing pain in the left lower chest wall posteriorly and that the pain was exacerbated when in a bending posture. On examination Dr Mahomed noted that the plaintiff was tender over T8, T9 and T10 and the left posterior chest wall in the lower lateral zone in the areas of the ninth, tenth and eleventh ribs. As the plaintiff was clear in her evidence that she felt the impact of the jet ski on her lower back, there must have been some lack of communication between the plaintiff and Dr Mahomed. Dr Mahomed was not called as a witness, as his report that was included in exhibit 2 was tendered by consent. I am satisfied by the plaintiff’s evidence that her complaint has always been in relation to pain in her lower back.
- The plaintiff was examined on 6 October 2006 by Dr Thomson, a general medical practitioner who specialises in medico-legal assessments in trauma-orthopaedics. The plaintiff told Dr Thomson that a jet ski hit her in the back and that she was flung face down under the water where she was “down there for awhile”. That description suggested a more serious collision between the plaintiff and the jet ski, than that which did occur. Dr Thomson’s report was done on the basis that the plaintiff received a significant impact from the jet ski.
- The plaintiff presented to Dr Thomson with ongoing lumbar back disability. On examination, Dr Thomson noted that there was a reasonable lumbar lordosis, no paraspinal muscle spasm, but there was focal tenderness to palpation over each sacro-iliac joint. There was some limitation in extension and forward flexion. Dr Thomson diagnosed chronic bilateral sacro-iliac joint strain which, on the history provided, he attributed to the jet ski incident.
- Dr Thomson was of the opinion that the plaintiff would be unfit for physical occupations or social or domestic activities requiring a normal lumbar-sacral back, but would be fit for lighter alternative activities and any further treatment was likely to be conservative.
- The plaintiff was examined by orthopaedic surgeon, Dr Ian Dickinson, on 26 March 2008. She complained that after the accident she had a lot of pain in her back and at the time of examination the pain was a band across the lower part of her back that was sometimes down the anterior aspect of her right leg. CT scans of the lumbar spine taken on 2 June 2006 were noted as normal and X-rays taken at the time of examination by Dr Dickinson of the lower thoracic, lumbar spine and sacro-iliac joints were all normal. On examination, Dr Dickinson noted no lumbar spasm and that the plaintiff was reluctant to flex her spine more than such that her fingertips reached approximately 10 centimetres above the knees. He noted that extension of the spine and lateral flexion were full, but that rotation of the pelvis produced low back pain in the site indicated by the plaintiff. Dr Dickinson’s assessment was influenced by the fact that she was recorded as having reported to Dr Mahomed that the pain was in her thoracic spine which was unfair to the plaintiff. Dr Dickinson considered that the plaintiff had no permanent disability arising from the blow to her thoracic spine and there was very little to find in the lumbar spine region that suggested that she had suffered from any significant damage to her lumbar spine.
- Orthopaedic surgeon, Dr John Pentis, examined the plaintiff on 17 June 2008, when she complained that she had back pain most of the time and had developed a right stabbing pain in the anterior thigh. Dr Pentis noted tenderness in the lower lumbar musculature on both sides, pain on lateral flexion with some restriction, slightly restricted rotation and decreased forward flexion. Dr Pentis expressed the opinion, based on the self-reporting by the plaintiff, that she had sustained injuries to her lower back. At his request, the plaintiff underwent an isotope bone scan of the thoracolumbar region, in view of the general practitioner’s initial diagnosis concerning the T8 to T10 region. That did not show any significant abnormality. In a further report dated 10 September 2008, Dr Pentis expressed the opinion that the plaintiff had a chronic soft tissue strain in the region of her spine which had left her with a residual impairment and an incapacity which would be permanent. He considered that the plaintiff was best treated conservatively and that common sense, gentle exercises and analgesics would be the mainstay of treatment. He suggested that the plaintiff should avoid any heavy lifting, repetitive bending type activities and change her position at reasonably frequent intervals when sitting at a desk.
- At the request of her solicitors, the plaintiff was examined by psychiatrist Dr Mark Whittington on 11 June 2008. Dr Whittington considered that the plaintiff’s problems related primarily to pain and disability. He could find no evidence to support any psychiatric diagnosis or of any psychiatric symptoms for which she needed treatment.
- The opinions of Dr Thomson and Dr Dickinson have been influenced by factors which I have discounted in the findings that I have made. After having listened to the plaintiff and considered the evidence adduced in relation to her injury and its consequences, I find that the plaintiff suffered an impact to her lower back in the incident that has resulted in her continuing to experience some level of moderate pain when undertaking activities that affect her lower back. I therefore accept Dr Pentis’ opinion as to the nature of the plaintiff’s injury and that it can be treated conservatively.
Quantum
- If the plaintiff succeeded on liability, the parties had agreed on some aspects of the damages. General damages were agreed at $6,000. Past special damages were agreed at $2,000. There was agreement that interest on past special damages should be calculated at 2.5 per cent per annum on the sum of $648.80.
- The plaintiff did not seek to recover damages for past gratuitous services or paid assistance. She did claim future paid assistance on the basis of requiring one hour per week. This was in reliance on her evidence that she required assistance in doing the heavy chores around the house and those chores were presently done by her partner and the opinion of occupational therapist Mr Zietek that (exhibit 2, pp153-154):
“… assistance … in the order of one hour per week with tasks such as vacuuming, outdoor sweeping, cleaning floors, and low level scrubbing as well as other spring cleaning tasks such as moving furniture, may be required to assist her to best manage her symptoms, while she continues to meet her work obligations and attempt to maintain the domestic environment.”
- The plaintiff explained that her partner finished work earlier than she did and he would undertake the housework, before she arrived home. The plaintiff was not seeking damages for future gratuitous services on the basis of her partner’s assistance. Apart from the fact that one of the reasons her partner did the housework was because of their different work hours, the plaintiff could not meet the threshold for pursuing a claim for damages for gratuitous services that is found in s 59(1)(c) of the Civil Liability Act 2003: Kriz v King [2007] 1 Qd R 327, 332-333 [18]. There was no suggestion in the plaintiff’s evidence that she would engage a person to undertake the heavy household chores for one hour per week. I am not satisfied that the plaintiff has established this head of damage.
- The significant part of the plaintiff’s claim for damages was for past economic loss and loss of future earning capacity. According to exhibit 12, the past economic loss is claimed on the basis of $700 per week over 26 weeks for the delay in the plaintiff’s entering the workforce, as a result of her taking an additional six months to finish her course. The figure of $700 net per week equates with the plaintiff’s current earnings. The amount that is claimed in the statement of claim for past economic loss is calculated on the basis of weekly earnings of $600 per week. The weekly amount claimed cannot exceed that which is in the statement of claim. In any case, the plaintiff’s earning potential in 2006 was likely to be less than her current rate of earnings. I accept the plaintiff’s evidence that the immediate consequences of the incident were to affect her ability to complete her course and therefore to defer her entry into the workforce. Despite her back problem, the plaintiff appears to have been consistently employed from the time that she did enter the workforce. She should therefore be entitled to past economic loss calculated at $600 per week for 26 weeks ($15,600) together with loss of superannuation calculated at 9 per cent of the amount for past economic loss and interest on past economic loss calculated at 2.5 per cent per annum.
- The claim for future loss of earning capacity is problematic. Her work history after entering the workforce has been good. She does feel vulnerable about losing her job in more stringent economic times, because of the need to change her work activities throughout the work day and the position in which she is sitting, in order to minimise discomfort to her back. According to exhibit 12, the plaintiff seeks a global claim of $200 per week over 30 years which results in a total sum of $164,400. There is no warrant in the evidence for such a significant global claim and it does not meet the requirements of s 55 of the Civil Liability Act 2003.
- Ultimately during submissions the plaintiff’s counsel conceded (at Transcript 2-55) that the range for future loss of earnings should be towards the higher end of the range of $10,000 to $40,000 that was the submission made by the defendant’s counsel. Because the plaintiff needs to adjust the manner in which she performs her work to ensure minimum discomfort to her back, it is reasonable to allow for compensation in the future for lost earning capacity, because of her vulnerability in maintaining employment when account is taken of her special work requirements. Because of her relative young age, it is likely there will be short periods of time when she is out of work, until she finds another suitable job. There is no precision in choosing the modest lump sum that will cover that situation. In the circumstances, I consider the sum of $30,000 is a reasonable amount to allow for that head of damages.
- The plaintiff claims future special damages of $5,060 on the basis that she will spend $5 per week for the rest of her life on medication. It is reasonable to allow some amount for the purchase of analgesics which is one aspect of the treatment envisaged by Dr Pentis as the means that will enable the plaintiff to perform her work and other activities. Therefore, I would allow the claim of $5,060 that has been made for this head of damages.
Orders
- Because the plaintiff has been unsuccessful on the issue for liability, the proceeding must be dismissed.
- I will hear submissions from the parties on the issue of costs, before making any orders as to costs.