Bauer v Clay[2025] QSC 114

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff is currently 22 years of age, having been born on 17 February 2003. On 19 March 2022, the plaintiff was injured in a motor vehicle accident in Bundaberg. Liability has been admitted.
2. [2]
   At the commencement of the trial, the parties identified three issues. Firstly, whether the plaintiff suffered any injury in the motor vehicle accident. Secondly, the extent of the injury sustained in the motor vehicle accident. Third, the proper quantification of damages flowing from the injuries properly assessed. After the impressive evidence brought from the plaintiff and the witnesses called in the plaintiff's case, the defendants properly conceded the first issue. There are many matters of fact and matters of expert opinion which affect the outcome of the second and third issues.

The Accident

3. [3]
   At about 7:00 pm on 19 March 2022, Mr Bauer was driving his Subaru WRX in a westerly direction along Princess Street, Bundaberg. Princess Street is a busy thoroughfare which connects the City of Bundaberg to Bargara. What occurred in the accident is best observed in Exhibit 3, the police dashcam footage of the accident. What the footage shows is that a marked police vehicle was driving from the City of Bundaberg along Princess Street towards Bargara. Police observed a Subaru Impreza driving in the opposite direction along Princess Street, that is, from Bargara towards the City of Bundaberg.
4. [4]
   Police attempted to intercept the Subaru Impreza by performing a U-turn. Police then activated emergency lights and sirens and set off in pursuit of the Subaru Impreza. The dashcam footage shows the police vehicle well exceeding 100 km/h in a 60-kilometre zone. The dashcam footage shows the Subaru Impreza vehicle dodging and weaving around cars and accelerating away from the police vehicle. After narrowly missing several vehicles, the first defendant, driving the Subaru Impreza, attempted to overtake the plaintiff driving his Subaru WRX near the intersection of Bunya Street and Princess Street.
5. [5]
   The overtaking manoeuvre on this occasion, however, was not successful, and the Subaru Impreza drove at high speed into the driver's side door of the WRX being driven by the plaintiff. The police dashcam footage shows the plaintiff's WRX being shunted violently to the left. The plaintiff’s WRX was accurately described by the plaintiff's father, Mr Bauer,^[1] as “it was a low vehicle with really hard suspension. It was a little sports car.”
6. [6]
   Mr Bauer attended the motor vehicle accident scene soon after the incident and described, in respect of the damage occasioned to his son's vehicle, “He hit a sharp gutter, and it’s demolished the front wheels and the whole front end. It was written off. It was halfway through a fence.” The photographs, Exhibits 4 and 5, show that the low front of the Subaru WRX, driven by the plaintiff, struck a double-sized gutter, causing massive deformity to the front wheels of the vehicle and extensive damage to the Subaru WRX. After striking the gutter with very considerable force, the vehicle then careered into the wooden fence adjacent to the entry of the Bauer’s Butchery.^[2] I therefore find that the motor vehicle accident was a high-velocity, high-energy violent collision. It was the type of collision which could cause very serious personal injury.

The Injuries

7. [7]
   At the time of the collision, the plaintiff was 18 years of age, a qualified carpenter, and fit and strong. As was properly conceded by defence counsel, the plaintiff was an impressive witness, and I accept his evidence in full. The plaintiff was quietly spoken, extremely understated in his complaints, and stoic. As the plaintiff said,^[3] after the accident, police attended the scene, however, he did not want any medical treatment, as “I wasn’t in enough pain, I felt at the time, to need an ambulance.”^[4]
8. [8]
   One of the peculiar features of this case is not only the lack of medical treatment being sought by the plaintiff but his denial of having suffered from any serious physical injury on the first recorded consultation with a general practitioner, Dr Burton, on 25 March 2022. Indeed, the doctor's notes recorded “head hit back of chair but nil other injuries” would, in many cases, be persuasive evidence that person had not suffered from any or any significant injury as a result of trauma.
9. [9]
   It is, however, in my view, not persuasive evidence in the present case. The records of Millbank Medical Practice record the plaintiff attending on the first occasion on 6 October 2017, with a diagnosis of otitis media and prescription of antibiotics. In a period of almost four and a half years from 6 October 2017, there are no attendances at the doctor at all.
10. [10]
    On 25 March 2022, that is, six days after the motor vehicle accident the plaintiff attended ay Millbank Medical Practice. The notes commence with Nurse Mackay recording, “Jack here today to see Dr Burton. Presents with father. States has been feeling well. Is very quiet. Works for dad as a carpenter. Immunisation audit - ? Did not receive most of childhood vaccinations…”
11. [11]
    It is perhaps a little unusual for someone not to go and see a doctor for four and a half years. However, it is most unusual for a person who has not been to the doctor for four and a half years and has been involved in a violent motor vehicle accident to attend and proclaim that they are “feeling well.” Nurse Mackay’s inciteful note of the plaintiff being very quiet and not receiving most of his childhood vaccinations shows, of itself, it seems to me, an aversion of either the plaintiff or his parents in attending upon a general practitioner.
12. [12]
    In the present case, I accept the evidence of the plaintiff's parents, Mr and Mrs Bauer, that the reluctance to attend for medical treatment is a matter which is personal to the plaintiff. That is, the plaintiff personally, simply because he was extremely anxious, refused attending upon doctors and did not like taking medications.
13. [13]
    The diagnosis of Dr Burton following the consultation of 25 March 2022 was that Mr Bauer had suffered from an adjustment disorder with anxiety as a result of the motor vehicle accident. There is no claim for the injury of an adjustment disorder with anxiety as having resulted from the motor vehicle accident in the pleadings.
14. [14]
    I accept the plaintiff's unchallenged evidence that prior to the motor vehicle accident he was not suffering from neck, upper back, or shoulder pain and that subsequent to the accident, the plaintiff has suffered of neck, upper back, and shoulder pain, as well as headaches.
15. [15]
    I accept the evidence, particularly from the plaintiff's mother, Mrs Bauer, that the plaintiff was an extremely anxious child and young man. I find that the plaintiff was suffering from neck, upper back pain, shoulder pain, and headaches when he attended upon Dr Burton on 25 March 2022, but the plaintiff did not inform the doctor of the true nature and extent of his injuries, as he was extremely nervous and had an aversion to seeking medical treatment. I find it was the plaintiffs father, Mr Bauer, who made the plaintiff attend upon Dr Burton and that Mr Bauer did most of the talking during that attendance.
16. [16]
    It was almost a year after the accident before the plaintiff sought any further medical treatment.  The second consultation was with Dr Triggs on 16 January 2023. The history recorded is that the plaintiff again attended the general practitioner with his father, reporting:

“Hit by a stolen car on March 2022. Police pursuit, car written off. No medical attention at the time or since. Ongoing pain in neck and right shoulder. Exertional headaches if lifts, missing a lot of work, Carpenter apprentice.”

17. [17]
    On examination, Dr Triggs found that the plaintiff’s right shoulder was “Protracted, he had significant loss of cervical rotation, flexion, and extension, positive Hawkins and Jobe signs, and a loss of strength.” Dr Triggs diagnosed a whiplash injury, ordered radiology, and recommended physiotherapy.
18. [18]
    The MRI of the plaintiff's brain showed no abnormality, as did the x-ray of the left shoulder and the ultrasound of the right shoulder. The CT of the plaintiff's cervical spine, reported “reversal of cervical lordosis, likely because of muscular spasm. There is also mild right convex asymmetry of the cervical spine. This may be positional and hence please correlate clinically…”
19. [19]
    In the witness box, the plaintiff presented as an extremely shy, quiet, and anxious young man. The plaintiff has had only two visits to a general practitioner subsequent to the motor vehicle accident, as described. I consider this is a result of his social anxiety and not a reflection of his lack of need for medical treatment.
20. [20]
    Exhibit 21 is the records of Quay Street Physiotherapy. It was not until 19 April 2023 that the plaintiff attended upon his physiotherapist, Ms Hallam, at Quay Street Physiotherapy, Bundaberg. I accept the plaintiff's evidence^[5] that if Ms Hallam is not available to treat him, he will not see any other physiotherapist. This is in keeping with his general anxiety and general distrust of persons he has not met and perhaps persons involved in the medical profession.
21. [21]
    On page 40 of Exhibit 21 is Ms Hallam's note of the first attendance on 19 April 2023, where the history of the motor vehicle accident was recorded, and then Ms Hallam noted, “neck pain since accident. VAS 7/10. At worst, uncomfortable all the time. Worse when looks down. Doctor advised muscle soft tissue damage. Left and right sore but not as bad as looking down… Headaches after physical exertion. Gets dizzy.”
22. [22]
    Ms Hallam recorded that looking down aggravated the symptoms, not doing anything eased the symptoms, and that he gets daily symptoms in the “middle of the day when at work”. Ms Hallam's examination also showed significant loss of cervical range of motion.
23. [23]
    On the second attendance on 27 April 2023, Ms Hallam records of the plaintiff, “Felt improvement after last session - was a bit sore a day, but settled. Feels that as soon as he starts active movement, the neck stiffens up again. Has been concreting. Nil new concerns… Better.”
24. [24]
    Ms Hallam continued to detect significant objective signs of neck injury, including a decrease in cervical and thoracic kyphosis, as well as a significant loss of range of movement in the cervical spine.
25. [25]
    On the third session, 10 May 2023, Ms Hallam recorded that “felt improvement after last session. A bit sore a day but settled. Feels only last for a few days. Has been compliant with HEP (home exercise programme). Nil new concerns.” Again, she recorded that the plaintiff felt “better.”
26. [26]
    There are similar recordings for the subsequent attendances on 24 May 2023, 12 June 2023, and 26 June 2023. On the next session, 20 July 2023, Ms Hallam records of the plaintiff, “feels much improved after each session. Feels he is getting much more improvement, has only one headache between sessions and only mild, has been compliant with home exercise program, no concerns. Better.”
27. [27]
    There are similar subsequent recordings from the treatment on 31 July 2023, 15 August 2023, 12 September 2023, 11 October 2023, and 16 November 2023. On the next appointment, 7 December 2023, Ms Hallam records, “four weeks since last session. Feels he started to get tight around the end of the fourth week again, so would like to go to three-weekly appointments. Feels more movement in his neck, has been compliant with home exercise program. Not as busy with work. Nil new concerns. Better.”
28. [28]
    Despite repeatedly recording "better," the objective physical examination findings of Ms Hallam continued to show ongoing significant loss of range of motion in the cervical spine. There are similar notes on consultations on 29 January 2024 and in later consultations. I find that the plaintiff has taken to the habit of telling Ms Hallam he is “better” after physiotherapy treatment which is true in the sense that the physiotherapy treatment has temporarily relieved his neck and back pain.
29. [29]
    On the next consultation on 15 February 2024, Ms Hallam records, “Two weeks since last session, managing okay, pain generally intensifies following work, nil new concerns. Better." Again, on objective physical examination there is decreased cervical lordosis and thoracic kyphosis and significant restrictions in the cervical spine.
30. [30]
    The entry of 2 May 2024 is of some importance. Ms Hallam records, “Missed last appointment. Feels he started to get tight last week and ended up with a stiff neck. Bad headaches last week at the back of head and into behind eye. Better this week, has been compliant with home exercise program. Not as much been busy with work, no new concerns - better.” The same objective physical findings as previous consultations.
31. [31]
    On 12 June 2024, Ms Hallam records some improvement. Upon consultation on 11 October 2024, Ms Hallam records the plaintiff complaining of a sensation change at C7 to T1. In my view, the physiotherapy records corroborate the plaintiff's evidence that since the motor vehicle accident, he has suffered from a significant injury to his cervical spine with, as is recorded in the physiotherapist's pain diagrams, pain into the upper thoracic spine.
32. [32]
    I accept the plaintiff's evidence that prior to the accident, he had some but minimal aches and pains that would occur if he performed heavy manual work. However, those aches and pains would “go away”^[6]. I accept the plaintiff's evidence that prior to the accident, his life aim was to be a builder, work with his father, and eventually take over his father's business^[7]. I accept the plaintiff's evidence^[8] that since the accident, he has had neck and upper back pain, that his pain is between his shoulder blades and his upper back and headaches.
33. [33]
    I accept the plaintiff's evidence^[9] that when he returns to work, his pains flare up if he does repetitive tasks or heavy lifting or work which require him to look up or down for extended periods of time, such as tiling or doing ceiling battens. I accept the plaintiff's evidence^[10] that his right shoulder symptoms persisted for about a year and a half after the crash but then resolved.
34. [34]
    I accept the plaintiff's evidence^[11] that his neck pain reaches a level of seven or eight out of 10, and that physiotherapist treatment temporarily relieves his pain and allows him to return to work. I accept the plaintiff's evidence that when he has a flare-up of pain, he is unable to continue working. He tells his father about this, and he goes home “because it is getting too bad to keep working.”^[12] I accept the plaintiff's evidence that his necessity to go home is “very random, because it is dependent on the jobs we are doing. But on average, I would say three times a week…two/three times a week.” I accept the plaintiff's evidence that if he goes home from work early on some occasions, he cannot return the next day. I accept that the plaintiff only saw a doctor because he was forced to do so by his father.
35. [35]
    I accept the plaintiff's evidence and Mr Bauer's evidence that the plaintiff's nephew, Cabel, has been employed in his father's business to perform the heavy lifting that the plaintiff used to do. I find that it is only with Cabel’s assistance the plaintiff has been able to continue to work.
36. [36]
    In his evidence in chief, the plaintiff reported some improvement in his condition in that initially he was having to cease work two to three days per week, whereas currently, he must cease work once or twice a week.^[13]
37. [37]
    In his cross-examination, the plaintiff made numerous concessions. He conceded he had assisted in doing concreting work and pouring a house slab this year.  He still did excavation. He used machinery to dig footings. In respect of using machinery, the plaintiff explained^[14] and I accept his evidence that “I can do it, but it is sometimes rough on the body, bouncing around on the machine all day.” The plaintiff explained^[15] that he pushes himself at work and he pays for it. He refuses to take analgesics. The plaintiff explained that he still continued doing heavy work such as “laying of the reinforcement mesh.”^[16]
38. [38]
    The plaintiff explained the loose arrangements between his father and himself as to remuneration.  I accept that it was Mr Bauer’s idea to increase the plaintiff’s rate from $32 an hour to $45 an hour as a contractor because as the plaintiff explained^[17] “I think that was his idea because he could not keep me down, like, as low as he was forever, I guess, so it is fair.”
39. [39]
    In respect of his work, the plaintiff explained^[18] and I accept that “the technical side is better for me to do than the manual labour side.”
40. [40]
    The plaintiff was an impressive witness. I accept he has given a truthful account of the accident and the symptoms that he has suffered, and his difficulties at work. I consider that the plaintiff's evidence is accurate in the main, although it has been demonstrated that he has a tendency to minimise his symptoms of pain and the problems that it causes him at work.
41. [41]
    The plaintiff's evidence is materially corroborated by the lay witnesses called in his case: his father Mr Julian Bauer, his mother Mr Deborah Bauer, his sister Ms Danielle Bauer, Mr Colin Lovett, and by Exhibit 17 the witness statement of Mr David Walsh. I was particularly impressed by the evidence of Mr Colin Lovett. Mr Lovett is a retired senior project manager with decades of experience in project management. Mr Lovett had signed a contract with Mr Julian Bauer for the building of Mr Lovett's house. The building commenced in May 2021. Mr Lovett explained that he was retired at the time and, as he had an interest in building and the building of his own house, he attended the site most days. Mr Lovett observed that Mr Julian Bauer's tradespeople were leaving him at the time as there was a building boom going on, and so in order to have the house project finished, Mr Lovett came on “fairly full-time” on the job.^[19]
42. [42]
    Prior to the date of the accident on 19 March 2022, Mr Lovett worked side by side with the plaintiff and observed him to be extremely fit, extremely agile and hard-working. Exhibit 16 is a photograph of the building site which shows, as Mr Lovett explained, a 45-degree slope on the building block, and that prior to the accident, he would observe the plaintiff run up that slope as well as carry heavy timbers up the slope and perform his work all day with no difficulties at all.
43. [43]
    Mr Lovett also observed that after the accident, the plaintiff could not perform his former tasks, such as carrying heavy building materials up the slope. Mr Lovett observed that after the accident, there were days the plaintiff did not come to work, and some days the plaintiff would go home early. I accept Mr Lovett's evidence^[20] the plaintiff made no complaints of pain to him at all, but he did occasionally see the plaintiff holding his neck, which he did not see before the motor vehicle accident. Mr Lovett explained that in order to get into a site project manager type role, required at least 30 years of experience as well as interpersonal skills.

EXPERT MEDICAL EVIDENCE

44. [44]
    Dr Mackenzie, orthopaedic surgeon, examined the plaintiff on 17 April 2023, and Dr Journeaux, orthopaedic surgeon, examined the plaintiff on 6 June 2023. At the time when Dr Mackenzie examined the plaintiff, the plaintiff had not undertaken any physiotherapy treatment, as the plaintiff's first physiotherapy treatment, as noted above, was on 19 April 2023. When Dr Journeaux examined the plaintiff, he had undergone four physiotherapy treatments, with the physiotherapy treatment of 24 May 2023 recording some improvement.
45. [45]
    There is a vast difference in the written opinions expressed in Exhibit 11, Dr Mackenzie's report, and Exhibit 18, Dr Journeaux's report. Dr Journeaux had, however, not unreasonably, based his report upon the factual premise as recorded in the notes of 25 March 2022, that the plaintiff had not suffered physical injury as a result of the motor vehicle accident, but only a psychological injury in the form of an adjustment disorder with anxiety.
46. [46]
    The opinion expressed in Dr Journeaux's report of 6 June 2023 is that the plaintiff did suffer from a musculoligamentous sprain/strain type injury or condition of the cervical spine. However, in the absence of complaint of, or onset of symptoms at the time of the accident and with the complaint of pain being reported as being related to work, Dr Journeaux opined that the plaintiff's employment was a significant factor in the diagnosed cervical injury. On the truthful factual basis, as discussed above, that the plaintiff had, since very soon after the motor vehicle accident, suffered from neck, upper back pain, shoulder pain, and headaches, Dr Journeaux forthrightly and immediately changed his opinion to support a diagnosis of a musculoligamentous injury being caused by the motor vehicle accident.
47. [47]
    I accept the opinions of Dr Mackenzie and Dr Journeaux, based on the correct factual premise that as a result of the motor vehicle accident, the plaintiff has suffered from a soft tissue musculoligamentous type injury to his cervical spine as a result of the motor vehicle accident. Dr Mackenzie had assessed an 8% impairment of the cervical spine using the DRE II classification of AMA 5. Dr Journeaux had not made an assessment of permanent impairment given his causation opinion. However, as demonstrated in cross-examination, due to the restricted range of active movement recorded in Dr Journeaux's report, had Dr Journeaux used the range of motion assessment in AMA 5, he would also have quantified an 8% whole person impairment rating in respect of the cervical spine injury. I conclude in respect of the cervical spine injury, the injury is properly assessed at 8% whole person impairment.
48. [48]
    Dr Journeaux did not assess any thoracic injury. Again, there can be no criticism of Dr Journeaux for this because the plaintiff did not complain to him of any thoracic symptoms. It seems to me this is in keeping with the plaintiff's extremely anxious and reserved affect; that is, the plaintiff does not say much at all, and I accept his evidence that he is extremely anxious when speaking to any doctor. Dr Mackenzie had assessed an 8% permanent thoracic spine impairment. The basis upon which he has done so is difficult to discern.
49. [49]
    In Dr Mackenzie's report of 2 May 2023 (Exhibit 11) the complaint recorded is neck pain with radiation to the thoracic spine. At paragraph 8.3, Dr Mackenzie did note tenderness in the cervical spine “to the upper thoracic region” (at paragraph 10.3). Dr Mackenzie's diagnosis was of soft tissue injuries to the neck and thoracic spine. However, given that there is no recording of anything other than tenderness in the thoracic spine, it seems to me that the diagnosis of a soft tissue thoracic spine injury is at best tenuous. Given that I do accept the plaintiff's complaints of pain to his upper thoracic spine, I do accept that there was a soft tissue injury to the upper thoracic spine. However, it seems to me it was a relatively minor injury, and it seems from the physical examination findings of Dr Mackenzie and Dr Journeaux that it is not an injury which ought to garner any independent assessment of permanent impairment.

General Damages

50. [50]
    On the basis of the above conclusions, it seems to me that the proper classification of the dominant injury in the present case is the neck injury, an item 88 moderate cervical spine injury (soft tissue injury only), which of itself ought to be assessed at the top of the range with an ISV of 10. I do accept that there is, in addition, a minor soft tissue injury to the upper thoracic spine (Item 94) which has not yet resolved, and there was a minor soft tissue injury to the right shoulder (Item 98) which resolved after a year and a half. I accept the plaintiff also suffers headaches as a consequence of the injury to his cervical spine. The plaintiff is only 22 years of age and has suffered from daily pain, and it seems to me, depending upon his work activities, is likely to continue to suffer daily pain to varying degrees. In these circumstances, the submission made on behalf of the plaintiff for a 25% uplift on account of multiple injuries ought to be accepted. The proper whole person impairment for the plaintiff's injuries is 13%, with a consequential award of general damages of $24,370.

Past Economic Loss

51. [51]
    The plaintiff's further amended statement of claim seeks an award of $74,544.08 for past economic loss. The plaintiff's written submission, however, claims less than half that amount, at $37,652.74. The defendants have submitted there ought not be any award for past loss, as the plaintiff has not proved past economic loss. I do not accept the defendants' submission in this regard.
52. [52]
    I do, however, accept the defendants' submission that the quantification of economic loss needs to take into account the familial relationship between the plaintiff and his father as his employer. That, however, seems to be a matter which ought to increase damages rather than decrease damages. I do accept the plaintiff's quantification of past loss at $37,652.74 for many reasons. However, the uppermost is that it is an extremely conservative quantification.
53. [53]
    Firstly, I accept Mr Bauer's evidence that he has never been short of work, ordinarily has a two-year waitlist for his work, and ordinarily there is availability when Mr Bauer is well, to work 60 hours per week. I accept Mr Bauer's evidence that typically in his business, he and pre-injury his son would work, when he was not having his own health difficulties, up to 60 plus hours a week.^[21] I accept Mr Bauer's evidence^[22] that he had never had a shortage of work and does not advertise for work. I accept Mr Bauer’s evidence that prior to the accident, the plaintiff did not have any time off work and never had a sick day. I also accept the plaintiff's unchallenged evidence,^[23] that prior to the accident, he would usually work eight to 10 hours every day, five days a week, and occasional work on weekends. Accordingly, I accept it as accurate as a matter of fact that pre-accident, the plaintiff was working a minimum of 40 hours a week and usually somewhere between 50 to a maximum of a little over 50 hours per week.
54. [54]
    Annexure two to the plaintiff's quantum statement (Exhibit 6) shows that the plaintiff was not paid for the hours he worked. The most common entry shows that the plaintiff was paid for only 34 hours per week. There is relative consistency in that recording between 9 September 2021 and 16 December 2021. In the period between 30 June 2021 and 1 September 2021, the payment hours varied between 15 hours per week up to 38 hours per week, but no explanation was brought forth as to the reasons for those differences in hours that the plaintiff was paid for.
55. [55]
    Mr Bauer explained that the six-week break between 21 December 2021 and 27 January 2022 was caused by both the Christmas break, in which ordinarily one would expect an apprentice would be paid, and the fact that Mr Bauer was unable to work during that period as he was having a biopsy. Furthermore, the rate of payment of $20 per hour is extremely low. Exhibit 7 is the plaintiff's certificate of completion of his trade as a carpenter. It is dated 1 December 2021. Despite the completion of his trade on 1 December 2021, the plaintiff's hourly rate was not increased from $20 per hour to $32 per hour until 7 July 2022. There is no criticism, implicit or otherwise, of Mr Bauer's payments to his son in respect of his wages as an apprentice or as a tradesperson, rather it seems to me, is merely reflective of the family relationship. The reason why this is relevant is that the plaintiff's quantification of damages is based on a premise of notional hours of 34 per week being full-time employment, whereas in fact, it seems to me the notional hours per week ought to be between 45 to 50 hours per week.
56. [56]
    The plaintiff's quantification of damages is partly set out in paragraph 54 of the plaintiff's written trial submissions in the following table:

57. [57]
    As discussed above, the starting point for the quantification of loss is an assumption that had the plaintiff not been injured, he would have continued to work a notional 34 hours per week. As discussed above, that is very conservative as the plaintiff in fact was working between 40 and 50-plus hours per week.
58. [58]
    The second point is that there is no loss claimed from between 19 March 2022 and 7 April 2022, when the plaintiff was not working as a result of the motor vehicle accident. It is plain in the medical record that the principal reason the plaintiff was not working was because he was suffering from a severe anxiety disorder at the time. That, however, has not been claimed as a consequence of the injury, and accordingly, there is no claim made for that initial loss. It does seem to me, however, that the plaintiff was suffering from neck and upper back pain and shoulder pain in that time. However, that was overshadowed by his severe anxiety condition.
59. [59]
    In any event, there is the second aspect of conservatism in the lack of any claim between 20 March 2022 and 8 April 2022. As can be observed from annexure two to Exhibit 6, the quantum statement, the plaintiff did in fact have his pay reduced from 19 March 2022 until 7 April 2022, and that is not claimed.
60. [60]
    In respect of the loss between 8 April and 30 June 2022, the plaintiff's quantification works on an average of 11.2 hours per week being actually worked, to quantify a loss of $224 per week. It is then claimed, not at a tradesman's first-year rate of at least $32 per hour, but at the conservative rate of $20 per hour, to quantify a gross weekly loss at $456, from which tax is deducted at 19% to leave a net weekly loss at $369.36, thus quantifying the loss in that period in the sum of $4,432.32. In my view, this is extremely conservative.
61. [61]
    The next loss, in the period from 1 July 2022 until 30 June 2023, suffers from the same conservative issues relating to the notion of hours per week as the base of 34 hours per week, whereas it ought to be between 40 and 50 hours per week. The hours per week is quantified at 27.3 hours, thus quantifying 6.7 hours loss per week. It ought to at least be six hours higher, that is 12.7 hours per week. In any event, on the lost hours per week of 6.7 hours at the $32 per hour rate paid from 1 July 2022, the loss is $214.40 per week, less tax, quantifying the loss in that year at $9,030.32. A similar analysis is done for the period from 1 July 2023 until 28 March 2024, which is the period that the plaintiff remained an employee of Bauer Projects. The above table therefore extremely conservatively values the loss at $21,687.94.
62. [62]
    Since 28 March 2024, the plaintiff has not been employed by Bauer Projects but rather has been engaged as an independent contractor charging $45 per hour. That is, on the evidence, an extremely conservative rate of pay for a tradesperson. The evidence is that other tradespersons are charging significantly more than that amount.
63. [63]
    The plaintiff's claim for the loss from 28 March 2024 is made on the basis that absent the injury, the plaintiff would have worked at least 42 hours per week on average. As discussed above, the evidence that I accept from the plaintiff is that he would have worked between a minimum of 40 hours per week and usually somewhere between 45 and 50 hours per week, and on occasion, he could work beyond 50 hours per week. It seems to me, therefore, that the postulation of 42 hours being worked on average per week, absent the injury, is a conservative quantification.
64. [64]
    A mathematical analysis of annexures 1, 3 of Exhibit 6 that shows that on average the plaintiff was working 33.9 hours per week. The plaintiff’s loss is therefore quantified at the difference of 8.1 hours per week at the gross rate of $45 per hour being a loss of $364.50 per week. Tax deducted at 25% calculates a net loss of $273.37 per week, which if allowed over 58.4 weeks since 28 March 2024, quantifies the further loss of $15,964.80. The plaintiff claims and I accept, therefore, that the past loss ought to be conservatively quantified at $37,652.74.
65. [65]
    Interest calculated at 2.196% for 3.1 years since 8 April 2022 quantifies the interest loss at $2,563.25.
66. [66]
    Loss of superannuation benefits ought to be allowed only on the loss of income as an employee at the agreed rate of 10.61% to the period 28 March 2024, in the sum of $2,301.09 ($21,687.94 multiplied by 10.61%).

Loss of Economic Capacity

67. [67]
    On 27 July 2023, Ms Kelly-Irvine, an occupational therapist, had a video conference with the plaintiff and recorded that the plaintiff felt that the maximum amount of weight he could safely lift was 2.25kg. On that basis, Ms Kelly-Irvine considered that the plaintiff was functioning below the sedentary category and accordingly ought not to work as a carpenter and required considerable aids and domestic assistance.
68. [68]
    On 27 October 2023, Ms Jones, an occupational therapist, attended at the plaintiff’s residence and undertook a detailed physical examination and functional capacity testing with actual lifting being undertaken in Ms Jones presence. As is shown and is readily and freely admitted by the plaintiff, he can lift a 20kg bag of cement. On that basis, Ms Jones expressed the view that although the plaintiff had reduced tolerances for overhead reaching and low base reaching, he did have work capacity as a carpenter.
69. [69]
    On page 11 of her report, Ms Jones expressed the view that as a result of the functional capacity evaluation, the plaintiff was currently suited to medium work due to ongoing reports of neck and shoulder pain with heavier work. On page 12 of her report, Ms Jones recorded

“Mr Bauer is suited to his current employment in carpentry. Should he choose not to work in this role, he would be suited to working in a variety of retail businesses that service carpenters, i.e., Bunnings, Trade Link, Reece's. However, it is his long-standing social anxiety that may impact the success of this work.”

70. [70]
    As to his current employment, Ms Jones set out on page five of her report as follows:

“Mr Bauer reported he currently works 25 to 35 hours per week, despite being employed in a full-time capacity due to limitations with physical demands and his pain.”

71. [71]
    I accept the plaintiff's evidence that he is unable to work in a full-time capacity, that his work duties do exacerbate his neck symptoms and cause him significant pain, such that he currently loses one to two days of work per week. Further, this is despite the fact that his nephew has been employed to do the heavier work. I prefer the opinion of Ms Jones over that of Ms Kelly-Irvin, as it is based on an actual physical capacity examination undertaken, and in my view, it currently reflects the evidence not only of the plaintiff but also of the plaintiff's father, Mr Lovett, and Mr Walsh, of significant difficulties being suffered by the plaintiff while performing his work as a carpenter.
72. [72]
    Exhibits 22 and 23 are schedules provided by the plaintiff listing and providing an average of the number of hours the plaintiff has worked since 23 March 2022 until 14 April 2025. The schedules show the plaintiff worked an average of 11.2 hours per week between 7 April 2022 and 30 June 2022 and then worked 27.3 hours per week on average between 1 July 2022 and 30 June 2023 (excluding the cancer treatment undertaken by his father and holidays). The plaintiff then worked 25.5 hours per week on average between 1 July 2023 and 28 March 2024. The schedule also shows that from 13 June 2024 until 14 April 2025, the plaintiff has worked as little as 8 hours per week up to a maximum of 45.5 hours per week with an average during that period of 33.9 hours per week.
73. [73]
    I do not accept that the plaintiff’s condition is lessening, even though he is able to work more hours in the recent year. It seems to me that the most probable reason for the plaintiff’s increase in hours is that the heavier work has been undertaken by his cousin Cabel. That is, it seems to me likely that the plaintiff’s father, Mr Bauer has accommodated for his son’s lack of capacity to perform heavy work by employing Cabel and this has in turn allowed the plaintiff to work additional hours.
74. [74]
    The further submissions on behalf of the second defendant (exhibit 24) focus on a four-week period in July 2024 revealing an average 41.25 hours per week. The defendant’s submission is that the plaintiff has shown himself as capable of “stepping up to the plate” and so the award for loss of economic capacity ought to be a moderate global award. I do not accept this submission as the July 2024 average, in my view, is not properly indicative of the plaintiff’s work capacity.
75. [75]
    Even if the average hours the plaintiff has worked from 13 June 2024 to 14 April 2025, of 33.9 hours per week, is accepted as determining his work capacity, the plaintiff has, on that analysis, lost at least one day a week, that is postulating a 5-day week. If, however, the plaintiff were working six days per week or 50 hours per week, he has lost over two days per week. If the plaintiff were truly stepping up to the plate, as his father has done for many, many years, the plaintiff would be working 60 hours per week and thus his currently economic capacity has been shown to be almost halved.
76. [76]
    In these circumstances, s 55(1) of the Civil Liability Act2003 (CLA) is engaged, as the plaintiff’s loss of economic capacity cannot be precisely calculated by reference to a defined weekly loss as that defined weekly loss changes from week to week depending upon what work the plaintiff was required to do and what assistance he obtains from his cousin performing the heavy work. I adopt the analysis of Section 55 of the CLA as set out in the reasons of McMeekin J in Nucifera v AAI Ltd [2013] QSC 338 at [28] to [30].
77. [77]
    Paragraph 11(e) of the further amended statement of claim pleads a loss of economic capacity in the sum of $600,000 as a global sum, said to be quantified taking into account nine enumerated factors in 11(e). I accept as factually proven the following seven of those factors:

    1. 11(e)(i): The plaintiff does have an inability to work full-time as a carpenter.
    2. 11(e)(ii): The plaintiff does have difficulties in his current employment (however I do not accept the plaintiff has a need for gratuitous assistance).
    3. 11(e)(iii): The plaintiff does have a need for a sympathetic and accommodating employer, and he currently has a sympathetic and accommodating employer.
    4. 11(e)(iv): The matters pleaded in 11(a)(i), namely that the plaintiff's injuries have given rise to symptomatology and restrictions which limit day-to-day activities, cause difficulties with prolonged standing and walking, cause difficulties with bending, lifting, overhead tasks or operating in confined spaces, cause difficulties in sustaining static postures or looking up and down, and he suffers from disturbed sleep. I also accept in paragraph 11(b) the plaintiff has suffered from past economic loss.
    5. 11(e)(v): The plaintiff's age of 22 is an extremely relevant factor to take into account in assessing the quantification of loss of economic capacity.
    6. 11(e)(vii): The plaintiff has limited roles now available to him as a result of his physical injuries.
    7. 11(e)(viii): The plaintiff has a disadvantage in the open labour market and a disadvantage should he attempt to establish his own carpentry business.
78. [78]
    I do not accept the factors of:

    1. 11(e)(vi): Although I accept that the plaintiff has suffered a whole person impairment, I consider that it is not relevant to the quantification of future economic loss, as there, in my view, is no evidence to support the factual conclusion that a whole person impairment does have any relationship with employability.
    2. 11(e)(ix): Awards in comparable cases. The assessment of loss of economic capacity is a factual matter referable to the facts and circumstances of the plaintiff and the injury he suffers, and in my view, it is an error in principle to base even a global award for future economic loss upon a “comparable” case.
79. [79]
    The plaintiff's primary submission at paragraph 79 of the plaintiff’s written submission is that his future economic loss ought to be assessed at $495,000. The plaintiff's calculation starts out consistently adopting the loss of 8.1 hours per week (the difference between 42 hours per week and the actual current workload at 33.9 hours per week) at $45 gross per hour, being a loss of $364.50 gross per week, less tax at 25%, being a net weekly loss of $273.37. The plaintiff's quantification then allows that for the next eight years until Mr Julian Bauer retires at age 65. The loss in the initial eight-year period is $273.37 multiplied by 346 (8 year 5% discount factor) is $94,586.02. The plaintiff then seeks a loss of $550 net per week, allowing for a 30 to 40% loss of capacity for the remaining 37 years of the plaintiff's working life.
80. [80]
    The quantification for the remaining 37 years is a loss of $550 per week multiplied by the 45 year discount factor 950 less the eight-year 5% discount factor of 346 (multiplier 604) quantifies a further loss of $332,200. That is then added to the $94,586.02 to arrive at a loss at $426,786.02, less a general discount for vicissitudes of 7.5%. Mathematically this produces a figure of $394,777.07. The plaintiff then seeks a further $100,000 to reflect the considerable disadvantage in the open labour market, thus arriving at the overall quantification of $495,000.
81. [81]
    As a check calculation, the plaintiff submits in paragraph 81 of the plaintiff's written submissions, a claim is made for $538,650, quantified as a loss of 40% of economic capacity. This is done by postulating average working hours at 42 hours per week, less tax rate at 25%, multiplied by 40%, multiplied by 950 (the 45 year 5% discount factor). The quantification of $538,000 is then discounted for vicissitudes by 7.5% to $498,251.25.
82. [82]
    As discussed above and pleaded in the plaintiff's first amended statement of claim, there are many factors which impact upon a proper quantification of loss of economic capacity. The starting point, however, it seems to me, is to make an attempt as best as one can to undertake the exercise in the art of double prophecy.^[27]  Namely, absent the accident, what was the likely future for the plaintiff? And now, since the accident, what is the likely future for the plaintiff?
83. [83]
    Accepting as I do and placing reliance upon the evidence of Mr Lovett and the unchallenged evidence of Mr Walsh, the plaintiff was, prior to being injured, an extremely hard-working, motivated, and able carpenter, and, despite his anxiety disorder, in my view, with maturity, he had quite good prospects of completing his qualifications as a builder. It seems to me that the plaintiff has a close relationship with and great respect and admiration for his father, and I accept his evidence that he wished to emulate his father and take over his father's business.
84. [84]
    The likelihood, in my view, therefore, is that the plaintiff would have, like his father, had a business which was in extremely high demand and would have required him to work closer to 60 hours per week for many years, rather than a 40 or 42-hour working week. There is no evidence, however, as to the loss of profitability of the plaintiff's long-term aim of being a self-employed building contractor. The evidence is that a well-qualified tradespersons earn between $60 and $100 per hour with carpenters currently at $70 per hour.^[28]
85. [85]
    The plaintiff’s economic capacity ought not to be based on what he earns currently. Not many people reach their full economic capacity when they are only 22 years of age. The plaintiff’s earnings at age 20 were 34 hours per week at $20 per hour, that is only $680 per week gross, yet 2 years later his hourly rate increased 225% to $45 per hour.
86. [86]
    In determining, therefore, what the plaintiff's economic capacity is, it seems to me that there was a high likelihood in the long term of the plaintiff working well more than 40 hours per week and anywhere up to 60 hours per week, and earning either as an independent contractor or self-employed builder rates in excess of $65 per hour.
87. [87]
    In determining the plaintiff's economic capacity absent injury, it seems to me, it ought to be quantified at the economic capacity of 45 hours per week at $65 gross per hour, a sum of $2,925 gross per week, which would produce an average after-tax weekly income of approximately $2,055 per week.
88. [88]
    As to the second element, it seems to me the plaintiff has lost between one to two days per week, that is a loss of between 20 and 40%. Adopting the midpoint of 30% quantifies the loss at $617 per week ($2,055 per week x 30%). If that were allowed for 45 years until the plaintiff is age 67 (discount factor of 950) that is a loss of some $586,150. I accept there ought to be some general contingency discount in respect of this. A principal factor in the general contingency discount is the potentiality of any person suffering from ill health. This is indeed what has occurred to Mr Julian Bauer. It seems to me, therefore, there ought to be a contingency discount of 10%, which quantifies the loss of economic capacity at $527,535.
89. [89]
    I am satisfied the plaintiff will suffer loss of his earnings in the future as a result of the injury sustained in the motor vehicle accident. The assumptions upon which the above award is based is that the plaintiff will continue to work at a reduced capacity as a carpenter for the balance of his career. The methodology used to arrive at the award is to assess the loss of capacity as a 30% loss of economic capacity which has been demonstrated by the plaintiff’s difficulties with work as set out above, his reduced hours of work set out in Exhibit 6 and as analysed in Exhibits 22 and 23, and upon the evidence of the plaintiff as to his difficulties at work.
90. [90]
    As to the loss of future superannuation benefits, as the quantification of damages for loss of economic capacity is based on the loss quantified with reference to contractor rates, it is, in my view, inappropriate to make any further allowance for the loss of superannuation benefits.

Future Paid Assistance

91. [91]
    A claim for future paid assistance is in principle available^[29]. Although such a claim is open, I consider in this case no allowance ought to be made. As discussed above, I do not accept Ms Kelly-Irvine's opinion but rather accept the opinion of Ms Jones. I also accept the plaintiff's evidence that whilst he does have some difficulties with mowing, he has adapted by changing the way he mows and performing the task less regularly.
92. [92]
    Furthermore, it seems to me the plaintiff is a very motivated person, and as is demonstrated by his evidence, the plaintiff is a person who will push himself to undertake tasks and suffer a degree of pain. It seems to me highly likely that the plaintiff will continue to perform domestic tasks as required and suffer from some pain while performing domestic tasks such as mowing or performing tasks above head height or at ground level. In short, it seems to me that the need for domestic assistance in respect of those tasks has not been established by the evidence. This is a reflection of the fact that the plaintiff is a stoic person.
93. [93]
    Past special damages are agreed at $3,429.85, with interest agreed at $156.21.
94. [94]
    On behalf of the defendants, it is accepted that the plaintiff's claim for future special damages of $2,500 for physiotherapy ought to be allowed in full. The plaintiff's claim for special damages is only $4,000, which given the plaintiff's life expectancy, is a claim for $4 per week. That is an attendance at the physiotherapist’s but twice a year. In my view, that is plainly inadequate.
95. [95]
    The difficulty is that the plaintiff was granted leave to amend his statement of claim on the first day of trial and did not seek any award for physiotherapy beyond $2,500 and $1,500 for travel. Unconstrained by the pleadings, it would seem to me that a proper award would be an award of one physiotherapist's visit per month at $100 per visit, that is, a cost of approximately $23 per week for the balance of the plaintiff's life expectancy of 61 years, 60 year discount factor 1015, that is an award of some $23,423.
96. [96]
    Although the issue of the need for physiotherapy was raised in both orthopaedic surgeons' reports, as it was not the subject of any significant issue in the pleadings, and as there has been no application to amend the pleadings, then the plaintiff is constrained by his claim as pled.
97. [97]
    I will allow $4,000 for future special  damages, being the full amount of the physiotherapy sought and one-half of the travel expenses claimed.

Conclusion

98. [98]
    In summary, I quantify Mr Bauer’s award as follows: