Leonardi v Payne[2009] QSC 382

SUPREME COURT OF QUEENSLAND

1. The plaintiff claims damages for personal injuries sustained by her in a motor vehicle accident on 4 October 2004.

2. Her cause of action is admitted. She was born on 13 February 1971.

3. She was injured when a vehicle driven by the first defendant collided with the rear of a vehicle driven by the plaintiff which was stationary at the time of the collision.

4. I am satisfied that the plaintiff sustained soft tissue injury to the cervical spine and a right shoulder injury with partial thickness rotator cuff tendon tear.

5. She was not hospitalised. She attended a chiropractor apparently being able to take advantage of an appointment already held by a friend. She had a number of chiropractic attendances and subsequently physiotherapy and massage treatment. Notwithstanding this treatment the plaintiff has continued to suffer symptoms in the cervical spine and in the right shoulder and right arm.

6. In her statement, exhibit 3, she sets out the various complaints which she has in her spine and in her shoulder and arm. The pain is constant but varies in intensity. She has had some acute episodes of pain which have required medical treatment and in one case, hospitalisation.

7. There is a substantial dispute between the medical specialists called on behalf of each party. It is the plaintiff's case that she suffers a significant disability of the shoulder and cervical spine, the combined effects of which have destroyed or greatly impaired her capacity to work. The defendants' case is that she has no ongoing disability of any significance and that there is no impediment as a result of any consequences of the injury to her working.

8. This is one of the major issues in the litigation. Another relates to the plaintiff's claim that she had plans to commence a hairdressing apprenticeship or course at the beginning of the year following the accident.

9. There is also a significant dispute between occupational therapists called by the respective parties, although the difference between the occupational therapists is somewhat less stark than that between the specialists. The defendants' occupational therapist accepts that the plaintiff is unfit for full time employment but is on her view, capable of part time work in a number of fields.

10. There is an issue as to whether the plaintiff is entitled to recover damages for loss of care and assistance given the terms of s 59 of the Civil Liability Act 2003 (Qld).

11. The plaintiff was educated at Ingham having reached grade 11 before leaving school.

12. She does not have any formal qualifications.

13. She is married. She was previously married and there are two children of that marriage who live with the plaintiff and her husband.

14. The children are aged 17 and 14.

15. After leaving school the plaintiff obtained work as a driveway attendant at a service station in Ingham for approximately three years. She was out of the workforce from about the time her first child was born until after the birth of the second child. She and her first husband separated in 1995 and she met her present husband in 1996 and they commenced to live together the following year and were married in 1998.

16. The plaintiff's husband owned a cane farm. The plaintiff from the time of the commencement of their relationship worked with her husband on the farm. The farm was a small one and in the circumstances of the sugar industry at that time, uneconomical. The plaintiff and her husband were faced with substantial financial difficulties because of the state of the sugar industry. As a result of pressure from their bank and the inducement of a government rescue package intended to assist farmers on small farms to exit the industry, the plaintiff and her husband came to leave the farm in 2001.

17. Following their receipt of a sum of money from the government in 2002, they acquired the lease of a restaurant in Ingham which was run by the plaintiff on a full time basis while her husband obtained seasonal work as a haul out driver.

18. The effects of the downturn in the sugar industry on the town of Ingham resulted in the failure of the restaurant and the plaintiff and her husband left it in late 2002. They had virtually no assets at this time.

19. For the next 12 months, the plaintiff stayed at home looking after her two young children whilst her husband sought full time employment. He secured full time employment in Townsville in 2003 and moved to Townsville to take this up whilst the plaintiff remained in Ingham with the children.

20. They acquired a house in Townsville in a rural suburb which they intended to renovate. The plaintiff says that she intended returning part time to the workforce when her eldest child started high school in 2005 and would have commenced full time employment when the younger son started high school in 2008.

21. The plaintiff says that she intended obtaining a hairdressing apprenticeship in 2005 and intended to use the income for renovations to the house.

22. There is a substantial dispute about the plaintiff's claim that she intended to obtain a hairdressing apprenticeship in 2005. In a report of Catherine Purse, an occupational therapist, the plaintiff was recorded as having told her that she intended to commence the apprenticeship in 2006 and this statement appears in the Statement of Loss and Damage filed pursuant to the Rules.

23. In addition it was contended that such a claim should not be accepted given that the accident happened in late 2004 and the plaintiff had taken no steps of any kind towards obtaining such a position and that it would have been impossible for her to have done so and to have commenced by the beginning of 2005.

24. It was also pointed out that there is no reference to this in any of the histories taken by the various medical specialists but on the other hand, it seems that at least in the case of some of those the subject would not have been likely to have expressly arisen.

25. I formed a generally positive impression of the plaintiff and am satisfied that she intended to return to work. The family's finances were such that there would have been an inducement for her to do so. The plaintiff's husband had obtained work as a plant operator and continues in this employment carrying out his work in the Townsville region. The history of the failed farm and restaurant seems to have imbued the plaintiff with a strong belief that there is a need for the family to have a secure economic base. At the same time the plaintiff has remained at home until such time as the children were in her view of an age that permitted her to re-enter the workforce.

26. It does however seem a little implausible that the plaintiff could have commenced as an apprentice hairdresser in 2005 in the absence of any steps having been taken by her to find a position. She made some reference to links which her husband has with people who conduct hairdressing businesses and the plaintiff gave evidence of having done a course involving the treatment of nails which she suggested might assist in giving her an entrée into a hairdressing salon.

27. Significantly in 2005 the plaintiff was faced with serious family issues which required her commitment and which would have made it very difficult if not impossible for her to have maintained employment.

28. In early 2005, her husband suffered a serious fracture of the leg which had him bedridden or largely immobile for some five months. For a further period after that he was restricted in what he could do and required some assistance or attention. In addition the plaintiff lost both her parents in what was described in evidence as tragic circumstances and this required a good deal of time to be devoted by the plaintiff and her siblings to the consequences of this. Her parents had lived in Ingham and it was necessary for the plaintiff to go there on a number of occasions.

29. I accept the evidence of the plaintiff that she intended to undertake a hairdressing course but it seems to me that if she had planned to put those plans into effect in 2005, it is unlikely that she would have been successful in doing so for both the reasons that I have mentioned. The first is that no steps had been taken to obtain such a position and the second is that in the events that happened, she would almost certainly have had to devote herself fulltime at least for a significant period to the matters that I have just referred to.

30. I am satisfied that the plaintiff would have re-entered the work force and there is no reason why she would not have remained there for at least most of a normal working life. It might be thought to be somewhat implausible that she would have worked until age 67, which is the basis upon which damages are claimed. On the other hand, she and her husband are of relatively limited means and there would have been, it seems to me, a significant incentive for her to have remained in the workforce. If she did not become a hairdresser then I am satisfied she would have entered the workforce in some unskilled or semi skilled position probably associated with the fashion or beauty industries.

31. Dr Campbell, a neurosurgeon, was called to deal with the plaintiff's spinal injuries. His view is that she sustained a chronic soft tissue muscular/ligamentous injury to the cervical spine and that the symptoms of which she complains are consistent with that injury. There is a reduction of movement of the spine with pain and stiffness at the extremity of movements.

32. He assessed her disability as falling within DRE category II cervical spine with a whole of person impairment of some seven per cent.

33. She has difficulty with a number of aspects of housework and work in the garden. She and her family occupy a rural residential site which includes an area where they run animals including a horse. Dr Maguire, an orthopaedic surgeon, deals with the plaintiff's shoulder disability. The plaintiff's neck pain is predominantly on the right hand side and she has shoulder pain which radiates down the lateral aspect of her right arm to the radial aspect of her right forearm, thumb and index fingers with some associated numbness. Dr Maguire assesses the plaintiff as having a right shoulder impairment, which constitutes a four per cent whole person impairment.

34. An ultrasound which was performed on 2 June 2008 revealed a partial tearing of the rotator cuff on the right side.

35. Her total whole person impairment, taking into account the cervical spinal problems, is on his assessment, some nine per cent.

36. On each of the two occasions Dr Maguire saw her, he observed significant muscle spasm on the right side of the cervical spine. This is a condition which cannot, he says, be simulated.

37. In addition he says that some of the signs that he saw in the plaintiff's right shoulder, such as muscle wasting, protraction of the scapular and some discolouration of the right hand were objective signs that bore out his view that the plaintiff has permanent disabilities of the right shoulder as a result of the injury he describes.

38. Dr Toft on the other hand says that he found nothing wrong in the plaintiff's right shoulder or cervical spine that could be attributable to any injury sustained in the accident. He saw no evidence of spasm or asymmetry of movement and assessed the plaintiff as having a zero per cent impairment of the whole person.

39. Even making allowances for the variations which might occur in the presentation of such symptoms, it is impossible to reconcile in any way Dr Toft's evidence with that of Dr Maguire and Dr Campbell. I accept the plaintiff's evidence that she suffers significant and painful symptoms. These are set out in her statement (exhibit 3) and described in the reports of the Drs Maguire and Campbell. The plaintiff left me with the impression that she was genuine in her complaints.

40. I found the evidence of Dr Campbell and Dr Maguire more convincing than that of Dr Toft.

41. I accept that Dr Maguire saw the signs which he said were objectively observable and which were not capable of being simulated. I accept that these are not always present and that this might explain why Dr Toft did not see them but their presence in my view tends to provide support for Dr Maguire's opinion, although my findings are based on an overall assessment of the evidence of the various witnesses.

42. I am satisfied that the plaintiff has the disabilities which are described in the reports of Dr Campbell and Dr Maguire.

43. The plaintiff has attempted to work on two occasions since the accident. She worked for a period at a tea room but had to leave the heavier work to her co-workers who were aware of her injury. She also worked for a short period cleaning a house but found it necessary to take breaks and spread the work out over a significantly greater time than the work should have taken.

44. Catherine Purse was called on behalf of the plaintiff and Stephanie Johnson on behalf of the defendant. Both are occupational therapists.

45. In her evidence, Catherine Purse summarised her view of the plaintiff's capacity for work:

"I came to the opinion that even though the testing showed in itself that she can physically perform the range of tasks in the category of sedentarywork, her pain is such that her endurance for continuous activity and regular activity is restricted and then at times she is not able to do anything much at all.  I came to the opinion that she can't maintain employment of any type because of a whole range of things.  But including that she has got constant pain, that it's very easily aggravated, that her pain control is dependent upon her reducing her activity level and an intake of medication that impairs her concentration.  The fact that she can't always drive and that when she does drive she usually has an increase in pain symptoms.  As well as the things like the reduced function of her right dominant hand and arm.  So that - that and as well as reduced sitting tolerance and she has a good standing tolerance but she has to support her right arm if she stands for a long period.  So those things brought me to say that she - you know her employability is very, very restricted and I don't - I don't think that realistically she could work even though the testing shows some residual capacity for doing work tasks."

46. It is Ms Johnstone's opinion that the plaintiff, whilst not capable of full time work, is capable of part time work in a variety of positions.

47. I accept Catherine Purse's evidence on this subject. The plaintiff has largely had her capacity to work destroyed. However some allowance should be made for a residual earning capacity in the event of her finding a benevolent employer who is prepared to make allowances for the plaintiff's significant problems. Such employment would necessarily, it seems to me, be on a part time basis and the prospects of her capacity being converted into income should not be over-rated given the serious problems she faces.

48. The plaintiff thus has significant consequences of what were largely soft tissue injuries and which are permanent and chronic.

49. Catherine Purse's assessment of the plaintiff's need for care and assistance was set out at page seven of her first report and page six of her second report.

"Necessary care and assistance is averaged and estimated as follows:

Personal Care:  3 hours per day for about 3 days immediately following the accident.

Domestic Assistance:  18 hours per week for about 4 months, gradually reducing to her current requirement for a minimum of 9 hours per week of assistance.  Assistance is required with laundry (2hrs/wk), ironing (1hr/wk), cleaning (4hrs/wk), and cooking (2hrs/wk).

Outdoor Assistance:  4 hours per week for about 6 months (mowing and gardening), gradually reducing to her current requirement of about 2 hours per week for assistance with gardening."

and

"Necessary care and assistance is averaged and estimated as follows:

Domestic Assistance:  Current requirement for about 9 hours per week of assistance for help with laundry (2hrs/wk), ironing (1hr/wk), cleaning (4hrs/wk), and cooking (2hrs/wk).

Outdoor Assistance:  Current requirement for 2 hours per week for assistance with gardening."

50. I accept the plaintiff's evidence as to the restrictions that she says she has in her capacity to perform domestic tasks and tasks in the yard. I do not overlook the fact that she has at times when she has had no option been able to perform some of these tasks but I am satisfied that this has caused her considerable pain. I accept Catherine Purse's assessment of her needs in the sense of the tasks she requires assistance with.

51. Ms Johnstone expressed the view that the plaintiff would require two hours per week of domestic assistance and one hour for tasks outside the house.

52. Under cross-examination she was asked to express an opinion based upon the assumption that the plaintiff would not be receiving any assistance from other members of the family with some of the heavier tasks outside of the house as is the case now and she was asked to take into account what appeared to have been some worsening of the plaintiff's position between the time Ms Johnstone had first seen her and the second occasion. She eventually expressed the opinion that the time required would be "between three and four hours per week" in respect of outdoor activities and two hours per week in respect of domestic activities.

53. Senior counsel for the defendants cross-examined Ms Purse and it was clear from her evidence that in making the allowances which she did she had taken into account the tasks which the plaintiff had performed prior to her injuries for the other members of the family as well as for herself. She was not asked to make any assessment of what the plaintiff's needs would be if attention were confined solely to her own requirements.

54. Section 59 of the Civil Liability Act 2003 (Qld) provides as follows:

"59 Damages for gratuitous services

(1) Damages for gratuitous services are not to be awarded unless—

(a) the services are necessary; and

(b) the need for the services arises solely out of the injury in relation to which damages are awarded; and

(c) the services are provided, or are to be provided—

(i) for at least 6 hours per week; and

(ii) for at least 6 months.

(2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.

(3) Damages are not to be awarded for gratuitous services replacing services provided by an injured person, or that would have been provided by the injured person if the injury had not been suffered, for others outside the injured person’s household.

(4) In assessing damages for gratuitous services, a court must take into account—

(a) any offsetting benefit the service provider obtains through providing the services; and

(b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution."

55. In Kriz v King [2007] 1 Qd R 327; [2006] QCA 351 the Court of Appeal considered s 59 and held that it did not provide any separate statutory entitlement to claims for damages for gratuitous services but rather took the common law as it stood on this matter and modified and restricted that entitlement.

56. The Court held that so far as s 59(1)(c) is concerned, damages for gratuitous services were not to be awarded unless the services had been provided or were to be provided for at least six hours per week and for at least six months but that once that was met damages could be awarded under this head even though the extent of the need was less than six hours per week.

57. In CSR Ltd v Eddie (2005) 222 ALR 1; [2005] HCA 64 the High Court of Australia held that the rule in Sullivan v Gordon (1999) 47 NSWLR 319 in which an injured person was held entitled to recover damages for the loss of that person's capacity to perform gratuitous work for another was not part of the Australian common law and that whilst some allowance may be made in general damages for this, damages cannot include an amount calculated by reference to the commercial value of those services.

58. In the course of the judgment the majority (Gleeson CJ, Gummow and Haydon JJ) dealt with the legislative steps which had been taken by the various states in relation to the recovery of gratuitous services. Plainly s 59 is based upon an assumption that Sullivan v Gordon stated the common law.  The passage relevant to this state is found at page 17 [51]:

"In 2003 the Queensland Parliament enacted s 59(3) of the Civil Liability Act:

Damages are not to be awarded for gratuitous services replacing services provided by an injured person, or that would have been provided by the injured person if the injury had not been suffered, for others outside the injured person's household.

Section 59(3) assumes that at common law damages are available for services provided by the injured person - a sound assumption in Queensland if Sturch v Willmott were correct.  Section 59(3) limits recovery to non-gratuitous services outside the household.  Section 59(3) is an example of Lord Reid's principle:  'the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different'.  Section 59(3) is not an example of legislation unworkable unless an assumption as to the common law is correct.  To overrule Sturch v Willmott and Sullivan v Gordon would not make s 59(3), which simply limited the common law rule, unworkable.  By itself that legislative decision is not a conclusive or even persuasive guide to the content of the common law; it merely reflects a legislative policy choice."

59. The principles which are relevant then to the plaintiff's claim for care and assistance provided gratuitously as a result of the defendants' negligence are to be found in a combination of the common law principles enunciated in the High Court judgment and the statutory restrictions on such a claim found in s 59.

60. It seems to me that on the state of the evidence it is not possible to conclude that the services were provided or are to be provided "for at least six hours per week for six months". The evidence of Ms Johnstone under cross-examination comes closest to this but it would have the plaintiff's needs assessed on the appropriate basis as being between five and six hours per week. This is plainly enough on a reading of s 59(1)(c) insufficient. 

61. In the course of addresses it was submitted that I could make my own assessment and that matters would be adequately covered if I simply halved Ms Purse's assessment. It is however not possible in my view for the Court to take such an approach. The evidence does not permit a finding of the plaintiff's needs if the matter were considered by reference only to the plaintiff's needs for such assistance as opposed to the needs of all members of the family which were previously provided by the plaintiff.

62. The plaintiff is therefore faced, it seems to me, with an insurmountable obstacle to the claim which she makes for care and assistance both past and present.

General Damages

63. I now turn to the assessment of damages. This assessment must take place conformably with the requirements of the Civil Liability Act 2003 (Qld) and the Civil Liability Regulation 2003 (Qld).

64. It was common ground that the dominant injury is the shoulder and having regard to the evidence which I have accepted, I accept that Item 79 in the Schedule to the Civil Liability Regulation 2003 (Qld) is the relevant part of the Schedule.

65. Applying the comments contained in this part of the Schedule to the circumstances of this case, I adopt an ISV of 10.

66. The plaintiff suffers in addition to the shoulder injury, disability of the cervical spine. The provisions of s 4 of the Regulation apply.  It is an appropriate case in which to apply a substantial uplift and I allow increase of 25 per cent.  This produces a figure for general damages of $14,500.

67. The claim for past economic loss is based upon the plaintiff becoming an apprentice hairdresser in early 2005 and completing her qualification in February 2009. The income which the plaintiff would receive on this assumption during the first four years is quite modest and below what one would expect she would have been earning in the workforce if she were not engaged in this way. On the other hand she would not have returned to full time work until the beginning of 2008.

68. I have already indicated that I think that the plaintiff is unlikely to have been able to commence her apprenticeship at least at the beginning of 2005 and that some discounts would necessarily apply.

69. On the other hand, the impression I have of the plaintiff is that having regard to the difficult, economic times that she and her husband have experienced, the need to provide a sound, financial base for the family was a matter of some importance and I think it likely that she would have obtained work as soon as she could.

70. As I have said, if she had not become an apprentice hairdresser then it is likely she would have been in the workforce in some other role in one or other of the fields which I have mentioned.

71. I allow $70,000 for past economic loss and I allow interest on $69,100 at 2.75 per cent for five years producing a figure of $9,501.

72. I allow past superannuation on $69,100 at nine per cent producing a figure of $6,219.

73. I have had placed before me the rates which an apprentice hairdresser and a qualified hairdresser would receive. A qualified hairdresser's wage would increase year by year through the various levels and the average gross per week during this period is $653.67.

74. I am told that the nett rate per week for this sum is $580 per week.

75. In addition I have evidence of what persons working under the Retail Industry Award would receive.

76. The plaintiff has advanced a claim based upon a loss of $600 per week for 29 years and applied a discount of some 20 per cent to this.

77. I think that the plaintiff should be regarded as having a minor residual earning capacity but it would be one which would be productive of income only with a benevolent and understanding employer who would permit the plaintiff to work at her own pace and would allow her to have breaks when necessary and who would be prepared to tolerate the plaintiff's being away from work for periods.

78. Ms Johnstone has suggested that the plaintiff could benefit from attendance at a pain clinic and that this may also increase her capacity to work. Ms Purse, on the other hand, rejects this and says that such programmes are designed to assist people in coping with their pain and do not necessarily reduce the pain. Whilst it might improve her quality of life, it would not in Ms Purse's view, be likely to improve her capacity to work. She is already using the techniques that are taught in pain management with programmes of pacing, reducing loading, alternating postures, alternating tasks and the like. I am not persuaded that there likely to be any improvement in the plaintiff's overall capacity to work.

79. I allow $150 per week for the plaintiff's residual earning capacity.

80. The ordinary vicissitudes and contingencies of life have to be allowed for. The plaintiff may not have worked into her late sixties or may have ceased work significantly earlier. Much would depend upon the financial situation of she and her husband at this time.

81. The present value of a loss of $430 per week for 29 years discounted at five per cent is $343,743.

82. Applying a discount to this of 25 per cent for the various vicissitudes and contingences that are to be taken into account, produces a figure of $257,807, I allow $260,000 for future economic loss.

83. I allow nine per cent on this sum for future superannuation being an amount of $23,202.

84. The parties have agreed on out of pocket expenses in the sum of $12,500 and interest on those expenses paid for by the plaintiff in the sum of $1,375.

85. There is a substantial claim for future medical and pharmaceutical and associated expenses. In Schedule H of Exhibit 3 the claim is made in the sum of $54,558.40. There was no substantial challenge to these claims raised in cross-examination.

86. Some significant discounts it seems to me must be applied to this claim. The claims are advanced over 50 years which would take the plaintiff to 88. Furthermore it would be necessary to make allowance for the possibility that the plaintiff may have had a similar need for some of theses things as she grew older in any case.

87. Included in the claim is a sum of $9,000 for the cost of a surgical procedure which Dr Maguire has suggested might be performed in the future. His evidence suggests that this is perhaps more likely than it was when he first saw her but it is by no means certain that she will have it at this time.

88. In addition allowance has to be made for the possibility that the plaintiff's situation might improve following surgery and the needs for the expenses and other treatment considerably reduced.

89. The defendants have contended for a figure of $20,000 under all of these heads.

90. Although I think that significant discounts have to be applied, I do not think that an allowance of $20,000 is sufficient. I allow the sum of $35,000 under this head of the claim.

91. The total of these amounts is $432,297.

92. I give judgment for the plaintiff against the defendants in the sum of $432,297.