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Murphy v Turner-Jones[2022] QSC 40



Murphy v Turner-Jones & Anor [2022] QSC 40






(first defendant)


(second defendant)


SC No 1093 of 2020


Trial Division




Supreme Court at Rockhampton


31 March 2022




28 February, 1 & 2 March 2022


Crow J


  1. 1.Judgment for the plaintiff against the second defendant for $200,776.07.


DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT GENERALLY – where the plaintiff suffered physical injuries in a motor vehicle accident – where liability is admitted by the defendant – where the plaintiff claims damages for personal injuries arising from the motor vehicle accident – where damages are assessed under the Civil Liability Act 2003.

Civil Liability Act 2003 (Qld), s 52, s 59

Civil Liability Regulation 2014 (Qld), Sch 3, Sch 4

Motor Accident Insurance Act 1994 (Qld), s 41, s 51

Uniform Civil Procedure Rules 1999 (Qld), r 155

Allwood v Wilson & Anor [2011] QSC 180.

Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421.

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

Nucifora & Another v AAI Limited [2013] QSC 338.

O'Connor v SP Bray Ltd (1937) 56 CLR 464.

Paul v Rendell (1981) 55 ALJR 371.


The plaintiff appeared on his own behalf

Tony Arnold for the first and second defendants


The plaintiff appeared on his own behalf

McInnes Wilson Solicitors for the first and second defendants

  1. [1]
    The plaintiff, Brett Murphy, claims damages for personal injury caused in a motor vehicle accident on 12 September 2017 in Rockhampton.  The defendants admit liability. Mr Murphy’s case is that he has suffered from serious injuries in the nature of “…an out of position whiplash injury and polytrauma at each level of his spine and pelvis”[1] and a “…coup contrecoup injury”.[2] Mr Murphy particularises a claim for damages in the amount of $10,249,234.
  2. [2]
    The defendants’ case is that the motor vehicle accident involved minimal forces of impact, causing only a “…mild musculoligamentous strain to the cervical spine”,[3] which was transient in nature.[4] The defendants also raise an argument that the plaintiff’s incapacity has been severely impacted by a comorbid mental health illness suffered by Mr Murphy.
  3. [3]
    In broad terms, the main issues raised by the parties are the nature, extent and impact of the injuries sustained by Mr Murphy in the motor vehicle accident and the effect of any comorbidity which Mr Murphy suffers from.
  4. [4]
    Mr Murphy is currently 50 years of age having been born on 21 February 1972. Mr Murphy completed a Year 12 education and subsequently obtained work as a wardsperson in several hospitals. Mr Murphy studied and obtained his Bachelor of Laws degree in 1996 from Bond University before embarking upon practical legal training and earning some income as a trainee lawyer. [5] Mr Murphy was admitted as a legal practitioner in the year 2000.[6] Mr Murphy provided no evidence as to what, if any, occupation he undertook between 2000 and 2005. As a result of suffering from mental health illness as well as hypertension and diabetes, Mr Murphy was in receipt of a part disability support pension between approximately 2005 and 26 November 2014.[7] Exhibit 17 further demonstrates that between 2 October 2014 and 26 November 2014, Mr Murphy was in receipt of that part disability support pension, with the pension ceasing on 26 November 2014.[8]
  5. [5]
    The most accurate information concerning Mr Murphy’s employment activities is contained in Exhibit 18 which includes Mr Murphy’s income tax returns and assessments for the financial years ended 30 June 2014 through to 2019.[9] In the 2014 financial year, Mr Murphy worked as a retail employee for Coles Supermarket in Rockhampton (Coles). Mr Murphy had made an application to join the Coles training management program in 2014 but did not say whether he was accepted or not. Mr Murphy’s 2014 tax return also shows that he received $10,889 in tax free government pensions and earned approximately $393 net per week (npw) in the 2014 financial year.
  6. [6]
    In the 2015 financial year, Mr Murphy continued working at Coles, earning $29,761 gross. In or about October 2014 Mr Murphy became qualified as a taxi driver and in the 2015 financial year he earned $10,256 from his taxi business. After deducting tax and Medicare, Mr Murphy’s net earnings for the 2015 financial year totalled $35,226 or an average of $677 npw.
  7. [7]
    In the 2016 financial year, Mr Murphy earned $4,694 from Coles. Mr Murphy ceased working at Coles and began to further develop his taxi business.  Mr Murphy conducted his taxi business through his company, Camtra Pty Ltd (ABN 89 607 450 377) (Camtra Pty Ltd). The company’s taxi business had gross revenues of $73,927 and expenses of $69,875 resulting in a profit of $4,052. For tax purposes, however, Camtra Pty Ltd was able to deduct $14,114 for capital works, resulting in the company reporting a net loss of $10,062.  Despite this taxable loss, the company had paid $5,000 to Mr Murphy as an associated person and declared frank dividends of $3,000 with a further $1,290 in franking credits being added to Mr Murphy’s taxable income. The result being that, in the 2016 financial year, Mr Murphy had a taxable income of $13,932 representing earnings of $268 npw.
  8. [8]
    For the 2017 financial year, Exhibit 18 includes the 2017 company tax return for Camtra Pty Ltd and Mr Murphy’s personal notice of assessment, but not Mr Murphy’s income tax return.  Camtra Pty Ltd earned revenues of $80,412 and incurred expenses of $68,519 for a profit of $11,893. Importantly, there was a payment to an associated person, Mr Murphy, of $20,550, which, less deductions, appears to constitute Mr Murphy’s taxable earnings for the 2017 financial year, which are in the sum of $19,350 or an average of $372 npw. The company profit of $11,893 adds on an extra $228 pw gross or $160 pw net to combined earnings of $532 npw.
  9. [9]
    In the 2018 financial year, Camtra Pty Ltd received $13,277 in income and expended $13,798 in expenses for a loss of $521. There were no payments to associated persons in that year. The 2018 company tax return is curious, as early in the financial year, the motor vehicle accident occurred and the return includes a $13,200 capital loss, indicating a cessation of the business after the motor vehicle accident. The tax return itself, however, records that the company tax return was not to be the final tax return and that the business has not ceased. Mr Murphy’s 2018 notice of assessment and individual tax return summary shows that he had a taxable income of $16,627, which consisted of $10,819 paid in an Australian Government sickness allowance and $5,802 paid as a QSuper lump sum payment.
  10. [10]
    For the 2019 financial year, Exhibit 18 includes only the 2019 notice of assessment showing taxable income at $22,527 with no detail as to how that taxable income was earned or received.  Exhibit 15, being Mr Murphy’s unsigned affidavit 10D, contains Mr Murphy’s Business Activity Statements summarising no income being earned from July 2018 through to June 2020. Mr Murphy is currently in receipt of Job Seeker payments and has been in receipt of Job Seeker payments since at least 1 May 2020.[10]
  11. [11]
    Mr Murphy presents as a difficult witness to assess. Mr Murphy has suffered from paranoid schizophrenia,[11] and it was demonstrated that Mr Murphy had been dishonest in his application for a commercial driver’s licence, declaring on 7 October 2014 that he had never, nor had he been told by a health professional that he had, suffered from a psychiatric illness, hypertension or diabetes.[12] I do not accept Mr Murphy’s explanation that this could have been an error and he had not intended to deceive. [13]
  12. [12]
    On the other hand, Mr Murphy did not appear to exaggerate the effect of his whiplash injury in terms of complaint of symptoms. When asked by counsel for the defendant, Mr Arnold, to confirm his case was that the motor vehicle accident was a high impact collision, Mr Murphy hesitated before agreeing, going on to describe it as an “odd occurrence” and that it sounded like and felt like a mound of bricks had fallen upon his vehicle.[14] That is, when given the opportunity to confirm his case, that there was a high impact motor vehicle accident, Mr Murphy did so but then gave evidence which minimised the collision.
  13. [13]
    Despite Mr Murphy’s dishonesty as to his health status when applying for the commercial driver’s licence, in general, I formed the impression that Mr Murphy was a credible witness. A fabrication that enables a plaintiff to obtain work or earnings is not necessarily destructive of credit.[15] Mr Murphy was focussed on describing his sincere belief that he had suffered from a terrible injury, rather than actually describing the effect of the injury upon himself.  That Mr Murphy sincerely believes he suffers from a severe spine injury cannot be doubted, what is more difficult to assess is the reality as to the nature and extent of the injury.  For example, Mr Murphy has a sincere belief that the motor vehicle accident was a high impact collision, as he believed that the following motor vehicle, a Holden Rodeo, was travelling between 30-60km/h and accelerating at the time it struck Mr Murphy’s taxi.[16]
  14. [14]
    The difficulty with Mr Murphy’s belief is he did not see the following motor vehicle at all prior to the collision. I therefore cannot accept Mr Murphy’s “feeling” that the following motor vehicle was accelerating and travelling between 30-60km/h at the time of the collision.
  15. [15]
    Rather, I accept the defendants’ case that the motor vehicle accident was a very low speed, minor impact accident, with minimal damage to both vehicles.[17] Mr Murphy proved this by tendering his taxi dash cam footage of the motor vehicle accident, together with photographs of the damage sustained by his taxi vehicle and the Holden Rodeo being driven by the first defendant.[18] The fact that the impact was minor does not necessarily conclude that Mr Murphy has not suffered from a high level of symptoms of neck or spinal injury.

Medical Evidence

  1. [16]
    Dr Fitzpatrick, an orthopaedic surgeon, examined Mr Murphy on 13 July 2018. In a report dated 20 July 2018,[19] Dr Fitzpatrick recorded that:[20]

“Mr Murphy cites a very high level of pain and disability however the MRI scan of his cervical spine fails to show any significant acute organic pathology. The bone scan which one might expect to show increased signal should there have been any occult fractures or significant aggravation of pre-existing arthritic change did not show any significant abnormalities.

On examination today the cervical spine had a poorly reproducible range of motion. There were no hard signs to suggest radiculopathy, despite Mr Murphy’s description of pain radiating into the upper arms and some pins and needles from time to time in his hands. In particular there was no wasting of the upper limbs. There was no sensory loss in a dermatomal distribution and there was no loss of relevant reflexes.

I note that Mr Murphy has been unable to work for the past ten months because of his symptoms. I would consider this unusual in the absence of any significant organic pathology.

My impression today was that Mr Murphy was suffering from a pain syndrome. There is no clear organic pathology in the cervical spine to explain the severity of his ongoing symptoms. He is under the care of a pain specialist which is appropriate.”

  1. [17]
    In respect of the cervical spine, Dr Fitzpatrick categorised the cervical spine injury as a diagnosis related estimate (DRE) Category 1 with 0% impairment. Dr Fitzpatrick did record:[21]

“All in all Mr Murphy says that his progress is slow but he does feel that he has made some significant improvements with pain management. He estimates that he is 50% back to normal.”

  1. [18]
    In conclusions 7, 9 and 10 on pages 9 and 10 of the report, Dr Fitzpatrick said:[22]

“Mr Murphy appears to have developed a pain syndrome. This may be related to psychological issues or other issues and could be best addressed by a pain specialist. There is no clear orthopaedic pathology to explain his pain syndrome.

Mr Murphy has not worked since the accident. If one were to look purely on the demonstrable organic pathology there is no reason why Mr Murphy cannot work. He tells me he cannot drive because of his excruciating pain. He cites a very high level of disability. He is not an increased risk of harm or injury by driving or working as a taxi driver.

There do appear to be psychological issues at play.”

  1. [19]
    In cross-examination, Dr Fitzpatrick did accept that the motor vehicle accident could have caused Mr Murphy to suffer from a whiplash injury, however, Dr Fitzpatrick did not accept the propositions put to her by Mr Murphy that he had a loss of lordosis of the cervical spine,[23] nor that such a loss of lordosis was any indication of serious injury,[24] nor that Mr Murphy has suffered from any serious organic injury.[25] Dr Fitzpatrick described the criteria for operations on a cervical spine and concluded that Mr Murphy did not fit in any of the criteria.[26] Dr Fitzpatrick described the multilevel degeneration shown by radiology upon Mr Murphy’s spinal column was in keeping with natural degeneration.[27]
  2. [20]
    Dr Fitzpatrick described the single-photon emission computerized tomography (SPECT) results as being “a very sensitive investigation” and they were reported as normal.[28]  Dr Fitzpatrick explained how the SPECT results fortified her opinion that there was no serious orthopaedic injury sustained by Mr Murphy in the motor vehicle accident.[29] Dr Fitzpatrick further opined that there was “absolutely not” any indication of motion segment instability.[30] Dr Fitzpatrick provided logical evidence and provided very detailed answers to numerous propositions put to her by Mr Murphy. I accept Dr Fitzpatrick’s evidence.
  3. [21]
    Mr Murphy called Dr Salanitri, an experienced radiologist. Dr Salanitri commented upon the medical terms in his MRIs of 11 September 2019 and 25 September 2019,[31] as well as the x-rays of 23 December 2019 and 19 May 2020.[32] Dr Salanitri reported on Mr Murphy’s kyphosis (mid-thoracic anterior curve of Mr Murphy’s spine), that there were multiple disc bulges from T7/T8 through to L5/S1, diffuse idiopathic skeletal hyperostosis, and that the multiple spurs, spondylosis and spondylotic lipping are all degenerative in nature. Dr Salanitri opined that the loss of cervical lordosis shown on the x-ray of 23 December 2019 was “probably secondary to the kyphosis in your (Mr Murphy’s) mid-thoracic spine…”.[33]
  4. [22]
    Dr Todman, a neurologist, examined Mr Murphy in May 2018 and January 2019.[34] Dr Todman agreed, in cross-examination, that his findings, opinions and symptoms were very similar across both reports.[35] Dr Todman’s diagnosis is of whiplash injury involving the cervical spine with ongoing symptoms being a post-whiplash syndrome or chronic musculoligamentous strain. Dr Todman categorised the injury as a DRE Category 2 injury with a 7% whole person impairment (WPI).[36]
  5. [23]
    In his report of 17 May 2018, Dr Todman opined:[37]

“Return to work will be dependent upon further improvement in symptoms and considering the intensity of his work as a taxi operator this may be a further six months or more into the future.”

  1. [24]
    Dr Todman did opine that Mr Murphy would require assistance for heavy domestic tasks and home maintenance for up to four hours per week, however, there is no claim made for domestic assistance. In his report of 17 May 2018, Dr Todman said of examination findings:[38]

“The examination showed restricted cervical spine movements by approximately 30 degrees to the right and 40 degrees to the left. There was tenderness in mid cervical muscles and in both trapezius muscles.”

  1. [25]
    In his report of 17 January 2019, Dr Todman recorded:[39]

“The examination showed similar findings to my earlier report namely restricted cervical spine movements which are approximately 30 degrees restriction to the right and 40 degrees to the left. There is tenderness in the mid cervical muscles and in both trapezius muscles.”

  1. [26]
    Dr Todman conceded that at the time of the first assessment in May 2018, Mr Murphy was capable of doing “some hours of work as a taxi driver, but probably not full-time or at the intensity he was doing previously.”[40] Dr Todman qualified that statement by opining that Mr Murphy ought not to have been doing “long hours of work” in both driving and other activities and would not be suitable to lift a 20kg suitcase out of a vehicle.[41] Dr Todman thought there was room for improvement in Mr Murphy’s symptoms.[42]
  2. [27]
    Dr Todman was asked to comment upon Dr Fitzpatrick’s observation on examination when she observed Mr Murphy sit upwards from a supine position on the examination couch in the normal method of a person who was not injured (that is, by the person flexing their head forward and sitting up straight) with Dr Fitzpatrick’s observation being that such mechanism exacerbated the pain of the patient with serious neck injuries such that they ordinarily roll to one side to avoid forced flexion of the cervical spine and decrease the pain sensation.[43] Dr Todman agreed with Dr Fitzpatrick’s observation that the method Dr Fitzpatrick observed may increase the neck pain of any person suffering.[44] Dr Todman explained his opinion of placing Mr Murphy into a DRE Category 2 as follows:[45]

“… a DRE Category 2 injury principally reflects that someone has a specific injury, and that’s why I put it in italics, and that is he has a chronic musculoligamentous strain, otherwise called, in his case, a post-whiplash syndrome and would fit most into the DRE Category 2 category from table 15.5. DRE Category 1, which is no impairment at all, is usually for mild trivial symptoms which have recovered.”

  1. [28]
    Dr Todman therefore reasoned that if a person suffers from a whiplash type injury and has ongoing symptoms, they ought to be categorised into a DRE Category 2 under Table 15.5 of the AMA-5 Guidelines.  The difficulty with such an approach is that it elevates a patient’s subjective complaints of pain to obtain primacy over the expert’s findings on examination. If that approach were correct, then expert orthopaedic surgeons, neurosurgeons, and neurologists need not examine a patient before forming an opinion, as emphasis is placed upon what a patient complains of rather than what is demonstrated, devaluing the assistance of the expert opinion, which is independent of the plaintiff.
  2. [29]
    A patient may consider that they have a terribly serious injury that causes them to suffer from terrible pain, however that does not necessarily make it so. It is important to obtain expert evidence from an independent person as to the true organic nature of the injury. It is difficult to discern what, if any, regard Dr Todman had to his examination role in forming his opinion.  A further difficult feature is the inconsistency of examination results recorded in the numerous assessments by other experts with only Dr Todman recording consistent examination results.
  3. [30]
    Mr Seibel, an occupational therapist, examined Mr Murphy on 17 May 2018 and in his report, sets out the results of his examination of Mr Murphy’s cervical spine range of motion.[46] These results differ significantly from Dr Todman’s examination results undertaken in May 2018. Dr Todman recorded a restriction in cervical spine movement by 30 degrees to the right and 40 degrees to the left in both assessments. That is very different to Mr Seibel’s examination results.
  4. [31]
    Dr Fitzpatrick, a consultant orthopaedic surgeon, examined Mr Murphy on 13 July 2018 and has undertaken four measurements of Mr Murphy’s range of motion in his cervical spine.[47] Dr Fitzpatrick’s report shows variability in the range of motion upon formal assessment,[48] which Dr Fitzpatrick commented “the active range of movement in the cervical spine was poorly reproducible.”[49] Dr Fitzpatrick also noted significant difference in range of motion between her formal assessment and her observations outside her formal assessment.[50]
  5. [32]
    Mr Zietek, an occupational therapist, also assessed Mr Murphy on 13 July 2018. In his report, Mr Zietek recorded:[51]

“In relation to the cervical spine, he flexed the cervical spine to approximately half the normal range. As stated earlier, this contrasted his ability to demonstrate full active flexion of the cervical spine whilst demonstrating a chin tuck exercise. All other movements of the cervical spine were performed to approximately half normal range, with associated reports of “lack of feeling or numbness” affecting his neck.”

  1. [33]
    I would conclude that the inconsistency demonstrated in clinical examination results does support Dr Fitzpatrick’s opinion that Mr Murphy has suffered from a whiplash injury with no organic pathology which is capable of explaining his complaints of severe ongoing symptoms. I accept Dr Fitzpatrick’s opinion that the whiplash injury ought to organically be considered as being characterised as 0% permanent impairment. I also accept Dr Fitzpatrick’s opinion that Mr Murphy has suffered from a pain syndrome. Mr Murphy’s unchallenged evidence was that “the sorts of injuries that the claim is based on are injuries that have a big effect on the activities of daily living…”[52].
  2. [34]
    As the percentage impairment is intended to reflect the effect of an injury upon a patient’s activities of daily living (excluding employment) it seems to me appropriate to accept that Mr Murphy has suffered from a minor permanent impairment as a consequence of his pain syndrome, but not as a consequence of any organic whiplash injury.
  3. [35]
    Mr Murphy argued that his injury ought to be categorised under Schedule 4 of the Civil Liability Regulation 2014 (Qld) as an Item 86 serious cervical spine injury or Item 87 moderate cervical spine injury – fracture etc on the basis that the loss of lordosis constituted a loss of motion segment integrity such that he was properly placed in those categories.[53] Mr Murphy’s submission on this categorisation is devoid of any evidential basis.
  4. [36]
    Dr Todman has not opined that there is a loss of motion segment integrity, Dr Fitzpatrick said there was absolutely no loss of motion segment integrity and further Dr Salinitri has advised that the loss of lordosis as shown in the x-ray of 2 December 2019 is secondary to Mr Murphy’s thoracic kyphosis (of which there is no evidence relating that to the motor vehicle accident). I reject therefore Mr Murphy’s submission that his injury ought to be classified as an Item 86 or 87.
  5. [37]
    Accepting as I do, Dr Fitzpatrick’s evidence as to the nature of the orthopaedic injury and ignoring all other matters, the injury sustained by Mr Murphy ought to be classified as an Item 89 minor cervical spine injury – soft tissue injury with an injury scale value (ISV) range of 0 to 4.  In other words, in a strict application of Schedule 4 of the Civil Liability Regulation 2014 (Qld) without reference to any other matters, it would categorise the injury as an ISV between 0 and 4.  That, however, is not the correct approach.
  6. [38]
    Schedule 3 to the Civil Liability Regulation 2014 (Qld) provides the matters that a court may or must have regard to in the application of Schedule 4. Particular regard must be had to sections 2, 5, 8, 9 and 10 which provide:

2 Injury mentioned in sch 4

  1. (1)
    In assessing the ISV for an injury mentioned in the injury column of schedule 4, a court must consider the range of ISVs stated in schedule 4 for the injury.
  2. (2)
    The range of ISVs for the injury reflects the level of adverse impact of the injury on the injured person.

5 Adverse psychological reaction

  1. (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. (2)
    The court must treat the adverse psychological reaction merely as a feature of the injury.

8 Court must have regard to particular provisions of sch 4

  1. (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.

Examples of relevant provisions—

  • examples of the injury
  • examples of factors affecting ISV assessment
  • comments about appropriate level of ISV
  1. (2)
    In assessing an ISV, a court must have regard to those provisions to the extent they are relevant in a particular case.
  2. (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.

9 Court may have regard to other matters

In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case.

Examples of other matters—

  • the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life
  • the effects of a pre-existing condition of the injured person
  • difficulties in life likely to have emerged for the injured person whether or not the injury happened
  • 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

10 Whole person impairment

The extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV.

  1. [39]
    Section 2 of Schedule 3 requires the court to consider the range of ISV as stated in Schedule 4 for the injury but does not confine the assessment of ISV to a number solely within the range. As may be seen from s 2(2) it is the intent of the ISVs within the schedule to reflect the level of adverse impact of the injury on the injured person. I respectfully adopt the analysis of McMeekin J in Allwood v Wilson.[54]
  2. [40]
    I accept Dr Fitzpatrick’s opinion that there are psychological factors at play, however, Mr Murphy has not pled nor proved any psychological injury or mental disorder as being caused by the motor vehicle accident. As Dr Fitzpatrick distinguishes between a pain syndrome and psychological factors at play I do not accept it is proper in Mr Murphy’s case to categorise the pain syndrome as a psychological reaction. Therefore, I conclude that the pain syndrome ought not to be considered “merely as a feature of the injury”.[55] In particular, in applying s 8(3) and s 9 of Schedule 3, I consider it proper that regard is had to the pain, suffering and loss of amenities of life actually sustained by Mr Murphy as a result of the motor vehicle accident.
  3. [41]
    Although I accept Dr Fitzpatrick’s opinion that Mr Murphy has sustained a 0% WPI as a result of the motor vehicle accident, on an organic basis, I also accept Dr Fitzpatrick’s opinion that Mr Murphy has suffered from a pain syndrome as a consequence of the motor vehicle accident. As set out by s 10 of Schedule 3, the 0% impairment that I accept is an important consideration, but it is not the only consideration, in assessing an ISV.
  4. [42]
    Dr Fitzpatrick’s opinion of Mr Murphy suffering from pain syndrome accords with my own observations of Mr Murphy – that he complains of a great deal of pain, particularly in his cervical spine but also elsewhere in his body. The pain syndrome as opined by Dr Fitzpatrick does not have an item number or category within Schedule 4 of the Civil Liability Regulation 2014 (Qld).
  5. [43]
    Although orthopaedically accepting Dr Fitzpatrick’s diagnosis, suggests that Mr Murphy’s injuries ought to be classified as an Item 89 - minor cervical spine injury. In my view Dr Fitzpatrick’s acceptance of the pain syndrome, which I also accept, makes it inappropriate that the injury be categorised as an Item 89. Mr Murphy’s injury does not at all meet the descriptors of an Item 89 injury, that of no ongoing symptoms other than symptoms that are merely of a nuisance value. Mr Murphy’s injury however does not fit in any other descriptor of a cervical spine injury within Schedule 4.
  6. [44]
    Mr Murphy’s injury cannot be classified as an Item 86, serious cervical spine injury, because, as explained by Dr Fitzpatrick, there is no loss of motion segment integrity, there is no nerve root compression or damage, nor is there surgery on the cervical spine apart from the ablative surgery, nor any fractures of the cervical spine.
  7. [45]
    Similarly, Mr Murphy’s injury does not fit with any of the descriptors of Item 87 - moderate cervical spine injury – fracture etc as there is no fracture, disc prolapse or nerve root compression or damage.
  8. [46]
    Item 88 of Schedule 4 provides:

Item 88 Moderate cervical spine injury—soft tissue injury


  • The injury will cause moderate permanent impairment, for which there is objective evidence, of the cervical spine.

Comment about appropriate level of ISV

  • An ISV of not more than 10 will be appropriate if there is whole person impairment of 8% caused by a soft tissue injury for which there is no radiological evidence. Example of the injury
  • a soft tissue or whiplash injury if symptoms are minor and the injured person recovers, or is expected to recover, from the injury to a level where the injury is merely a nuisance within 18 months after the injury is caused.
  1. [47]
    Whilst I would conclude that Mr Murphy’s injury does not fall within the comment or descriptors of Item 88, it does seem to me appropriate to categorise Mr Murphy’s injury as a soft tissue injury of the cervical spine. I further consider it is appropriate to conclude that the injury is moderate, notwithstanding that the injury has not caused moderate permanent impairment and that there is no objective evidence of the moderate permanent impairment. I further accept Dr Fitzpatrick’s opinion there is no radiological injury supportive of soft tissue injury. Despite these difficulties, in my view it is proper to conclude that the injury ought to be classified as a moderate cervical spine injury soft tissue injury because of the great deal of pain that Mr Murphy had suffered, and its negative impact on Mr Murphy’s activities of daily living.[56] I conclude it is appropriate to assess the ISV at 10, that is, at the top of the range for an Item 88.
  2. [48]
    An ISV of 10 quantifies general damages at $16,150.

Loss of Economic Capacity

  1. [49]
    In Medlin v State Government Insurance Commission McHugh J said:[57]

“In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings.  In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings.  That is because ‘an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss’.  Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income.  Earning capacity is an intangible asset.  Its value depends on what it is capable of producing.  Earnings are evidence of the value of earning capacity but they are not synonymous with its value.  When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s preaccident and postaccident earnings.  This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident.  Further, there is a tendency to assume that if preaccident and postaccident incomes are comparable, no loss has occurred.”

  1. [50]
    It is particularly important in the present case to apply the principle of compensating Mr Murphy for his loss of earning capacity as he has a varied history of earnings. As set out above, his average net weekly earnings in 2014 was approximately $393 pw, in 2015 it was $677 pw, in 2016 it was $268 pw, and in 2017 it was $532 pw. In the four financial years preceding the accident, therefore, Mr Murphy’s average net weekly earnings were approximately $470 pw.
  2. [51]
    It is true that in 2017, due to Mr Murphy solely driving taxis, his earnings were quite limited at $532 npw. However, I accept Mr Murphy’s evidence of expected higher earnings in late 2017 and in 2018 (for the Beef Expo).[58]
  3. [52]
    Mr Murphy’s position, as stated in evidence, is that in 2018 or 2019 he sold his motor vehicle,[59] had not renewed his licence and did not drive a motor vehicle due to experiencing a “line of eyesight” problem, thinking it unsafe to drive a motor vehicle.[60] As there is an absence of medical opinion supporting Mr Murphy’s sincerely held belief that it is unsafe for him to drive a vehicle because of “line of eyesight” problems,[61] I cannot accept Mr Murphy’s case that he is unable to work as a taxi driver, at all.
  4. [53]
    There is no evidence from Mr Murphy that sitting in a motor vehicle for extended periods of time aggravated or affected his neck or spinal pain, nor is there any evidence from Mr Murphy that he could not return to work as a retail sales assistant at Coles, or some other place of employment, due to neck or spinal problems. Mr Murphy did, however, present with a neck brace on, as he had previously presented, and did move in a guarded fashion. As recorded above, I have no doubt that Mr Murphy believes he has a serious spinal injury and have no doubt that Mr Murphy is in fact suffering from some pain, particularly in his cervical spine.
  5. [54]
    When questioned about his inability to drive, Mr Murphy responded in the recurring theme that he wanted to see the right specialist and get proper treatment.[62] The consistency in Mr Murphy’s complaints may be demonstrated by reference to Exhibit 1 and his assessment at the Rockhampton Adult Community Mental Health Centre on 6 November 2018. That mental health assessment records, in part:

“Brett presented as a well kempt, casually dressed Caucasian man, wearing a checked shirt and socks. His speech and thought processes are in the normal range. He continues to remain quite preoccupied by neck injuries and their treatment and told us he has an appointment with a specialist next month. He reports an improvement in his neck strength and visual appearance, which he says has improved his eye sensitivity as well. He stated there has been an improvement in his swallowing… Brett states he is surviving on sickness benefits since the car accident. Brett cooks and cleans for himself...”

(Emphasis added)

  1. [55]
    Mr Murphy admitted that after the accident, he drove his motor vehicle from the scene with minor rear end damage to a local service station and then to the police station to report the accident.[63] In my view, there is insufficient medical evidence or other evidence to support the conclusion that Mr Murphy is incapable of driving a motor vehicle or taxi. I do, however, accept that Mr Murphy genuinely suffers from neck pain and this has reduced his economic capacity in that I accept that Mr Murphy may suffer from increased neck pain if required to drive a motor vehicle or taxi for long periods of time or perform other manual work.
  2. [56]
    In Nucifora & Another v AAI Limited, McMeekin J said:[64]
  1. “[30]
    At least since Graham v Baker it has been well established that a plaintiff must demonstrate that his or her earning capacity has been diminished by the accident-caused injury and that that diminution “is or may be productive of financial loss”. Those requirements plainly continue: McCarthy. In determining the “may be” issue relevant in this case the principles explained in Malec v JC Hutton Pty Ltd apply. There is the “double exercise in the art of prophesying” involved – what the future would have been if the injury had not occurred and what it is now likely to be. As usual the fact finder must state the factual findings underpinning the award and display the reasoning behind the award sufficiently at least for the parties, and the Court of Appeal if called on, to comprehend the result, although the methodology need not include an explicit statement of a formula: Reardon-Smith. An “experienced guess” has been held to be a sufficient response to the facts presented: Ballesteros.”

[footnotes omitted]

  1. [57]
    As to the application of the double art of prophesying as suggested by Lord Diplock in Paul v Rendell,[65] it seems to me that it is proper to accept Mr Murphy’s evidence that but for the accident, he would have continued operating his business through his company as a taxi driver. I think it reasonable to assess Mr Murphy’s economic capacity at $550 npw.
  2. [58]
    In view of the fact that Mr Murphy received ablative surgery to his cervical spine nerves in September 2018, paid for by the second defendant, I think it reasonable to conclude that Mr Murphy’s economic capacity was affected in that period. I conclude that Mr Murphy’s economic capacity was removed entirely for a period of 35 weeks between the date of the accident, 12 September 2017 and May 2018, when Dr Todman assessed Mr Murphy as capable of working part-time as a taxi driver. In that period, I assess Mr Murphy’s past loss of economic capacity at $19,250 (35 weeks x $550 npw).
  3. [59]
    In the period from May 2018 until present, I cannot accept Mr Murphy’s explanation that he cannot drive a motor vehicle or otherwise work, as he has a desire to see “the right specialist” to provide treatment to reduce his symptoms and improve his “line of eyesight” problem when driving. In the 3 years and 10 months since May 2018, I consider it is reasonable to assess Mr Murphy as having lost half his economic capacity as a consequence of the motor vehicle accident, which is a further $53,900 (196 weeks x $550/2).
  4. [60]
    Given, however, Mr Murphy’s descent into mental ill health in November 2018, and in view of his past mental health problems from 2005 to 2014 and his relentless pursuit of other litigation, I consider that there ought to be a 25% discount to loss from May 2018 to present, quantifying past loss of economic capacity at $59,675 ($19,250 + ($53,900 x 0.75)).
  5. [61]
    Appropriately, there is no claim for loss of superannuation benefits.
  6. [62]
    There is a claim for past loss of interest, however, in view of the admission in Exhibit 1 by Mr Murphy that he had not worked since the accident but had been in receipt of sickness benefits and other payments from Centrelink from 2019 to 2021,[66] the monies received from Centrelink would likely exceed the assessed past economic loss such that there is no award for past interest.

Future Economic Loss

  1. [63]
    As to Mr Murphy’s loss of economic capacity in the future, I accept that the accident and pain caused by it has diminished Mr Murphy’s earning capacity and that that has been and will be productive of financial loss. The factors which bedevil any accurate quantification of past economic loss also apply to render an accurate or precise mathematical quantification of future economic loss impossible.
  2. [64]
    Doing the best I can with Mr Murphy’s complex past health and financial history, it seems to me that I should assess Mr Murphy as having suffered from a 50% loss of economic capacity of $550 for the next 17 years to age 67 (discount factor 603), and to further discount that by some 35% due to the uncertainties of Mr Murphy’s comorbid mental health condition and the prospect of some improvement in the future. Accordingly, I quantify future loss of economic capacity at $107,786 (a loss of 50% of $550 npw for 17 years (603) less 35%).

Future Yard Maintenance

  1. [65]
    In the prayer for relief in the statement of claim, Mr Murphy seeks $115,200 for future yard maintenance, being $3,600 annually for 32 years. There is no evidence in Mr Murphy’s case capable of satisfying s 59 of the Civil Liability Act 2003 (Qld) and accordingly, I make no award for future care or yard maintenance.

Special Damages

  1. [66]
    In the prayer for relief in the statement of claim, Mr Murphy has claimed past medical and pharmaceutical expenses together with interest in the sum of $6,078.18, medical expenses with interest in the sum of $7,489.70 and public transport expenses, together with interest in the sum of $20,916.43. Mr Murphy did not, however, as required by rule 155 of the Uniform Civil Procedure Rules 1999 (Qld), particularise how those sums were calculated. Mr Murphy called Ms Brock from QPain Pty Ltd to provide evidence that Mr Murphy paid QPain $790 for services rendered by QPain.[67]  That amount of special damages has been proved.
  2. [67]
    There is a dearth of evidence as to what Mr Murphy in fact paid for rehabilitation. The second defendant paid for radiofrequency ablative surgery to the nerves on Mr Murphy’s cervical spine on 25 September 2018 and for other expenses incurred by Mr Murphy at Q Pain.[68] As I accept Mr Murphy’s evidence that he was in relatively good health prior to the accident and not taking medications, and that Mr Murphy has been taking a great deal of medication since the accident, then I consider Mr Murphy has proved that some of the medication he has taken since the accident arises as a consequence of the accident. The difficulty is determining what portion. The tricyclic antidepressant Allegron appears to have been prescribed post-accident by QPain to assist in dealing with Mr Murphy’s pain syndrome. I consider therefore that the Allegron ought to be allowed, as ought the analgesics Panadol and Aspirin which Mr Murphy reported to Dr Fitzpatrick that he was consuming two tablets 2 to 3 times per day.
  3. [68]
    Exhibit 10 is Mr Murphy’s document titled “Affidavit 11”. It contains Annexure MED8, Mr Murphy’s Notice of Past Benefits of Medicare, which records that for the period 12 September 2017 until 12 December 2019, Medicare have paid $5,393.30 in respect of medical services. A letter of Medicare dated 12 December 2019, however, records that the amount of $5,393.30 is a total of all services that have been undertaken in that period. That is, Mr Murphy did not return his Medicare History Statement, identifying medical services relating to this claim. Furthermore, the preceding Medicare History Statement totalling the $5,393.30 in Medicare benefits is not a part of the material. Accordingly, I cannot discern what, if any, of the $5,393.30 is accident related.
  4. [69]
    Annexure MED7, of the same exhibit, contains a Medicare History Statement for the period between 12 September 2017 and 10 October 2018 totalling some $3,966.90 in total Medicare benefits that had been previously verified by Mr Murphy as relating to the compensation case. The total charge for those accident-related services was $5,118.75. A brief description of items, together with the other evidence of Mr Murphy concerning the treatment provided by Dr J Clark, Dr G Clark, Dr Wood, Dr Sidana, Dr Nagarkar, Dr Keys and Dr Sagar causes me to infer that those expenses were in fact accident-related. On the balance of probabilities, I accept that the medical services contained in the Medicare History Statement of 11 October 2018 are accident-related, with the exception of the services of the ear nose and throat surgeon, Dr Matthews, whose charges total the sum of $299.45 in respect of a nasal endoscopy, which I conclude Mr Murphy has not shown to be accident related.
  5. [70]
    I therefore accept that Mr Murphy has proved $4,818.70 in medical expenses being related to the accident as shown in the Medicare Notice of Claim form.  This amount includes the sums of $560 paid to Dr Keys as deposed to by Ms Brock of QPain.[69] That amount does not however include the $230 Mr Murphy paid to QPain in respect of services rendered on 31 July 2020.[70] I accept Mr Murphy has therefore proven past medical expenses in the sum of $5,048.70. Mr Murphy is entitled to statutory interest upon the amount he paid, being the $5,048.70, less the Medicare payments ($3,966.19 - $177.20 paid in respect to Dr Matthew’s services) on the sum of $1,259.
  6. [71]
    Annexures MED3, MED4, MED5 to Exhibit 10 are a bundle of pharmacy receipts. The annexure MED5, being the $709.65 in pharmaceuticals obtained from Your Solution Compounding Pharmacy in Brendale is fully recoverable. It relates to the treatment administered by the pain specialist, Dr Keys. Annexure MED3 is a printout of pharmacy receipts from the CQ Friendly Society pharmacists in Rockhampton totalling some $1,505.25. In the 9 pages of print out, it seems to me that many of the drugs are accident related. In particular, the pharmaceuticals are referred to by Drs Fitzpatrick and Todman as being taken for the accident-related condition and include Mobic, Panadol, Allegron, Aspirin and Palexia. Similarly, other pharmaceuticals being prescribed by Dr Keys appear to be accident related. As to medications relating to Mr Murphy’s bowel and fistula, as explained by Dr Fitzpatrick it is a common occurrence with the ingestion of analgesics that a patient may suffer from constipation.
  7. [72]
    There are other pharmaceuticals that are plainly not related. Exhibit 1 is Mr Murphy’s document titled “Affidavit 2” which contains extracts from the Rockhampton Hospital file listing medications that Mr Murphy was consuming in September 2018, including Quetiapine, an anti-psychotic drug, GTN, Nortriptyline and Perindopril, an anti-hypertensive drug. There are numerous other drugs upon which there is simply no evidence.  It is therefore not possible to form any conclusion on the balance of probabilities as to the precise amount of special damages that are accident related. What is plain, however, is that a majority of the pharmaceuticals set out in the 9-page CQ Friendly Pharmacy receipt are accident related. I will allow approximately two-thirds of the total and allow $1,000 for pharmaceuticals which have been purchased by Mr Murphy as a result of the injury he sustained in the motor vehicle accident.
  8. [73]
    Annexure MED4 to Exhibit 10 is a similar pharmacy print out from CQ Day and Night Chemmart Pharmacy at Alma St, Rockhampton.  Excluding the nasal spray, the “Prexum Combi” and Metronide, the receipt is evidence of accident related pharmaceuticals in the sum of $1,498.72.
  9. [74]
    Accordingly, Mr Murphy has proved an amount of $3,208.37 that he has paid in accident-related pharmaceuticals. The total therefore of special damages in respect of medical and pharmaceutical expenses paid by Mr Murphy is $8,257.07. The pharmaceutical expenses of $3,208.37, and medical expenses of $1,259, a total of $4,467.37, bear interest at the statutory rate.
  10. [75]
    In the 4.5 years since the accident, Mr Murphy has paid $8,357 on special damages, this represents average expenditure of $35.30 per week. That, however, is not a fair indication of Mr Murphy’s medical needs over the balance of his life, as his medical reports indicate that although Mr Murphy has suffered significant pain, his condition has improved considerably both prior to and since the ablative surgery of 25 September 2018. Although Mr Murphy suffers pain, there is no significant organic pathology which provides a reason for Mr Murphy to perceive that he is suffering from pain. As he has a pain disorder as opined by Dr Fitzpatrick, it does seem to me reasonable to allow a sum of $10 per week for future medical expenses for the balance of Mr Murphy’s life, on the life expectancy tables averaged to be 35 years. I allow $8,760 for future medical expenses, $10 per week for 35 years discount factor 876.

Future Expenses

  1. [76]
    In his prayer for relief, Mr Murphy has claimed both future medical and pharmaceutical expenses being $7,159 per annum for 32 years, a total of $230,246.40 together with $48,885 for future surgery. The five types of surgery referred to by Mr Murphy in his prayer for relief in fact come to a total of $50,885.  There is however no evidence supporting the requirement for any future surgical care as a result of the motor vehicle accident and accordingly I make no allowance for future surgery.

Exemplary Damages

  1. [77]
    During the course of the trial, I have already addressed Mr Murphy’s claim of $5,000 for exemplary damages. As Mr Murphy has not alleged any unlawful intentional act done by the first defendant with intent to cause Mr Murphy personal injury, then pursuant to s 52 of the Civil Liability Act,[71] an award of exemplary damages could not be made against the first defendant. Mr Murphy then sought to argue that the second defendant had not properly rehabilitated him according to the “Quebec Task Force guidelines on rehabilitation for whiplash” and that this meant that the second defendant had been in breach of its statutory duties (alleged to have been pursuant to s 41 and 51 of the Motor Accident Insurance Act).[72] Mr Murphy argued that he could claim exemplary damages against the second defendant for breach of statutory duty. In my view, such claim is not maintainable at law as it does not meet the requirements for the tort of breach of statutory duty as explained by the High Court in O'Connor v SP Bray Ltd (1937) 56 CLR 464.

Balance of Claims

  1. [78]
    I have assessed damages for Mr Murphy’s loss of economic capacity above. In addition to those claims, Mr Murphy’s prayer for relief sought claims for a loss of business goodwill, capital gains loss, a loss of intangible assets, a loss of Centrelink sickness payments, and a future loss of student financial supplement scheme. In my view there is insufficient evidence nor a proper legal basis to accept any of the claims.
  2. [79]
    I assess Mr Murphy’s damages as follows:

Pain and suffering

Item 88 ISV 10


Past loss of economic capacity


Future economic loss


Medical expenses


Interest on medical expenses

$4,467.37 x 1.48% for 4.5 years ÷ 2


Future medical expenses




  1. [80]
    I find judgment for the plaintiff against the second defendant for $200,776.07.


[1]  Paragraph 45 of Statement of Claim.

[2]  Paragraph 46 of Statement of Claim

[3]  Paragraph 28 of Amended Defence.

[4]  Paragraph 28 of Amended Defence.

[5]  Exhibit 12, annexure titled ‘ERN3’; T1–68, lines 44-45.

[6]  T1-68, lines 35-36.

[7]  T1-70, lines 10-40.

[8]  Exhibit 17.

[9]  Exhibit 18.

[10]  Exhibit 18, page 60.

[11]  Exhibit 1.

[12]  T1-70, line 40; Exhibit 16.

[13]  T1-73, lines 24-34.

[14]  T1-79, line 42 to T1-80, line 9.

[15] Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421, Muir J at [22] and [31].

[16]  T1-81, line 12.

[17]  As set out in the Amended Defence, paragraph 22 and 23.

[18]  Exhibit 2.

[19]  Exhibit 19.

[20]  Exhibit 19, page 7.

[21]  Exhibit 19, page 4.

[22]  Exhibit 19, pages 9 and 10.

[23]  T2-21.

[24]  T2-22.

[25]  T2-22 to T2-23.

[26]  T2-25, lines 3 – 14.

[27]  T2-25, line 43.

[28]  T2-24, line 6.

[29]  T2-24, lines 10-12.

[30]  T2-26, line 43.

[31]  Contained in Exhibit 4.

[32]  Contained in Exhibit 6.

[33]  T2-46, lines 2-3.

[34]  Reports contained in Exhibit 11

[35]  T4-4.

[36]  Page 5 of report by Dr Todman dated 17 May 2018 contained in Exhibit 11.

[37]  Page 5 of report by Dr Todman dated 17 May 2018 contained in Exhibit 11.

[38]  Page 3 of report by Dr Todman dated 17 May 2018 contained in Exhibit 11

[39]  Page 3 of report by Dr Todman dated 17 January 2019 contained in Exhibit 11.

[40]  T4-9, lines 21-24.

[41]  T4-9, lines 25-34.

[42]  T4-7, line 44

[43]  T4-8, lines 45 – 50 to T4-9 lines 1-5.

[44]  T4-9, lines 5-10.

[45]  T4-10, lines 10-15.

[46]  Paragraph 21 of report by Dr Siebel dated 17 May 2017 contained in Exhibit 12

[47]  Exhibit 19.

[48]  Exhibit 19, page 5.

[49]  Exhibit 19, page 5.

[50]  Exhibit 19, page 6.

[51]  Exhibit 20, paragraph 15.

[52]  T1-62, line 45.

[53]  Statement of Claim, paragraph 67; T4-53, lines 22 – 35.

[54] Allwood v Wilson & Anor [2011] QSC 180, at [19] – [24].

[55] Civil Lability Regulation 2014 (Qld) Schedule 3, s 5(2).

[56] T1-46 & T1-62.

[57]  (1995) 182 CLR 1 at [16].

[58]  T1-62.

[59]  T1-82, line 39.

[60]  T1-82.

[61]  T1-82, line 42

[62]  T1-83, lines 17-19.

[63]  T1–82, lines 1-26

[64]  [2013] QSC 338, at [30].

[65] Paul v Rendell (1981) 55 ALJR 371 per Lord Diplock, in delivering the advice of the Privy Council at 372.

[66]  Exhibit 18.

[67]  T1–28, lines 40 – 50, T1-29, lines 1-22.

[68]  T1–28, lines 40 – 50, T1-29, lines 1 – 22.

[69] T1–28, line 40-46.

[70] T1–29, line 21.

[71] Civil Liability Act 2003 (Qld).

[72] Motor Accident Insurance Act 1994 (Qld).


Editorial Notes

  • Published Case Name:

    Murphy v Turner-Jones & Anor

  • Shortened Case Name:

    Murphy v Turner-Jones

  • MNC:

    [2022] QSC 40

  • Court:


  • Judge(s):

    Crow J

  • Date:

    31 Mar 2022

  • White Star Case:


Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QSC 4031 Mar 2022-
Notice of Appeal FiledFile Number: CA4815/2228 Apr 2022-
Appeal Determined (QCA)[2022] QCA 25613 Dec 2022-

Appeal Status

Appeal Determined (QCA)

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