CATCHWORDS: DAMAGES - QUANTUM - Whether Civil Liability Act 2003 applies - Whether sufficient to plead in Reply that employment was a significant contributing factor to injury - Where employer not sued - Whether a "journey" claim.

DAMAGES - CIVIL LIABILITY ACT - CALCULATION OF INJURY SCALE VALUE - Where plaintiff has multiple injuries but no single dominant injury - where assessed ISV exceeds the maximum dominant ISV by more than 25%.

DAMAGES - PAST AND FUTURE CARE - Where plaintiff establishing commercial plantation at time of injury - whether gratuitous services in that enterprise 'necessary' under s. 59 Civil Liability Act 2003.

DAMAGES - ECONOMIC LOSS - Whether additional travel cost of getting to work allowable as a component of future economic loss.

Cockshell & Anor v Australian National Railway Commission (1984) Aust. Torts Reports 80, cited.

Henderson v Dalrymple Bay Coal Terminal [2005] 124 applied.

Newberry v Suncorp Metway Insurance Ltd [2006], applied.

O'Keefe v Schluter [1979] Qd R 224, cited.

Randall v Dul (1994) 13 WAR 205, cited.

Thomas v Eyles (1998) 28 MVR 240, cited.

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR, applied.

Civil Liability Act 2003 (Qld) ss. 5(b), 59, 62

Civil Liability Regulations 2003 (Qld) Schedule 4

Workers Compensation and Rehabilitation Act 2003 (Qld) ss. 32, 35

SOLICITORS: Macrossan & Amiet for the Plaintiff

[1] John Clement was injured in a single vehicle accident after work on 4th February 2004. At the time of the injury Mr Clement was 44 years old, having been born on 10 March 1959.

[2] The vehicle in which Mr Clement was a passenger turned over after hitting a sheet of water across the road in a gully.

[3] The only details of the accident led in evidence came from the driver, Mr Backo.

[4] Mr Backo said[1] that he was driving four other employees of United Group Resources home after work. The group worked at Ensham Coal Mine. It is relevant to one of the issues before me that although the group in the vehicle was heading home after completing work the vehicle had not left the Ensham property at the time of the accident. Exhibit 1 is a document setting out some general admissions made mutually for the purposes of the trial. Among these was an admission that if the accident had not occurred the vehicle driven by Mr Backo would have proceded first to the mine gate house and thereafter along the road from the mine gate house to the workers' accommodation in Emerald.

[5] The sun was in Mr Backo's eyes. As he came down into the gully he hit a puddle of water and mud about four to six inches deep and about 10 metres across. The vehicle aquaplaned. Mr Backo lost control of the vehicle. The vehicle turned over several times and Mr Clement was thrown clear. Mr Backo was an employee of United Group Resources. It is a reasonable inference that Mr Backo was travelling too fast for the conditions when he struck the water.

[7] Mr Clement was employed by United Group Resources (then called United Goninan) as a trades assistant/rigger. His work involved maintaining the drag line bucket and the cables and other attachments to the bucket.

[8] As a result of the accident Mr Clement said that he was told he had suffered a fracture of his lumbar spine at the L1 level, a neck injury, an injury to his right shoulder, an injury to his thoracic spine, bruising to the left lower rib cage area, bruising of the right knee, bruising of the right groin area and internal injuries to the bladder and kidneys.[2] Later X-ray examination did not disclose any fractures. Examinations by Drs Fraser, White and Cook, undertaken for the purpose of the litigation have identified ongoing tenderness and significant restriction in movement in each of the lumbar, thoracic and cervical spine regions. Mr Clement continues to complain of pain in his shoulders but there does not appear to be any restriction in movement. Mr Clement also complained of hip pain in each of the examinations but did not appear to have any restriction in movement. Each of the three doctors mentioned assessed the degree of permanent impairment at either a 5% or 6% whole person impairment in relation to each of the three regions of the spine. This makes a total whole person impairment of between 15% and 18%.

[9] Dr Burke examined Mr Clement at the request of the Second Defendant in March 2005. Dr Burke is a specialist Occupational Physician rather than an Orthopaedic Surgeon. He assessed a lower disability but was not called to give evidence. The Second Defendant did not rely on Dr Burke's assessment of disability. In the absence of any explanation in oral evidence for the difference, I am disinclined to accept Dr Burke's minority opinion in the face of the opinions expressed by the other specialist orthopaedic surgeons, each of whom gave evidence and was cross-examined.

[10] It is common ground among the medical witnesses that Mr Clement's back problems relate to unresolved soft tissue damage. Having regard to the period which has elapsed since the accident, the problems must be regarded as chronic.

[11] Radiological examination of Mr Clement's back following the accident revealed moderate degenerative change at all three levels of the spine.

[12] Mr Clement claimed in evidenced that his back had been asymptomatic prior to the accident. This was an area of controversy.

[13] The records of Mr Clement's general practitioner revealed a number of consultations for back related conditions.

[14] A Workers' Compensation claim was lodged in 1989 for an injury suffered while digging a trench. Mr Clement was off work for a few days. Mr Clement also had two incidents of back spasm in 1994. Most recently, Mr Clement presented on 7 September 2000 complaining of back pain apparently caused by sneezing while bending over a basin. Mr Clement was prescribed an anti inflammatory drug and a back rubbing gel.

[15] I am not persuaded that any of these incidents are relevant. Dr Cook, whose evidence I accept, expressed the view that if Mr Clement had suffered an injury in 2000 and then worked for a number of years without repetition of the complaint or any other restriction, the earlier injury should be regarded as minor and not of subsequent significance.

[16] In the result I accept Mr Clement's evidence that he had no symptoms of back pain before the car accident. I accept that in the absence of an intervening event, such as the accident, there is no reason to believe that Mr Clement's condition would have become symptomatic notwithstanding the degenerative changes.

[17] Following the accident Mr Clement was given an office position by his employer. The work he was doing as a trades assistant/rigger was demanding physical work. The medical evidence is uniform in concluding that Mr Clement is no longer suitable for such work.

[18] There are two financial consequences of the change from a position at the mine site to a position in the company's office in Mackay. The wages are lower and Mr Clement has not only lost the benefits of meal allowances and company paid travel to his place of work, but he must now travel at his own expense from his residence near Gargett to Mackay each day, a round trip of 134 kilometres.

[19] In addition, Mr Clement gave evidence that had he not been injured he would have sought permanent work in the mining industry. Permanent work for a mining company is remunerated at a higher rate than work for a mine contractor. On the other hand, working directly for a mining company would not, on the evidence, have included the meal allowances and free travel. Taking this into account, the overall difference did not appear to be great and the plaintiff's senior counsel prepared his schedule of damages on the basis that Mr Clement would have continued to work for United Group Resources. While the claim for the lost opportunity to obtain permanent mine work was not abandoned, I do not think it makes any material difference whether Mr Clement is compensated on the basis of lost earnings and allowances with United Resources or on the basis of the lost opportunity to obtain permanent mine work.

[20] Apart from the financial consequences, Mr Clement finds his present work less satisfying because he is often the recipient of complaints from both management and workers concerning work rosters and similar matters. He has had difficulty with the driving to and from work because of his injuries but copes by working 8 consecutive days and having 6 days recovery.

[21] In assessing quantum I have had regard to these matters about which I am satisfied on the evidence.

[22] Mr Clement had a long and impressive work history, broken only by the loss of part of his index finger in an accident in 1999. This required Mr Clement to retrain. He could not continue his then work as a rigger and crane driver because he could no longer climb safely. His work ethic was sufficient to see him engaged as a leading hand only 10 months after commencing work with his current employer. Mr Clement has a four year old daughter who will be only 22 years of age when Mr Clement reaches the age of 65. It is unlikely he would voluntarily retire early.

[23] Despite recovery from the injuries to his hip/groin and shoulders, Mr Clement suffered considerable discomfort from them and still suffers some discomfort from the hip/groin injury when he walks any great distance or is overactive.

[24] The injury to his cervical spine causes severe headaches.

[25] Prior to the accident Mr Clement was establishing a mahogany plantation at his property near Gargett. Although he still does some work on that project he no longer plants trees or drives the tractor or slasher. This work is either done by his wife or with the assistance of a neighbour who is paid for her labour at a rate of $15.00 per hour. Since Mr Clement was injured the plantation has been increased from about 600 trees to between 1500 and 2000 trees.

[26] Mr Clement no longer plays golf regularly because of his injuries.

Does the Civil Liability Act Apply?

[27] Notwithstanding the absence of any dispute concerning liability, the circumstances of the accident may be relevant to the issue of whether the provisions of the Civil Liability Act 2003 apply to limit the quantum of general damages.

[28] Section 5(b) of the Civil Liability Act provides that :

"This Act does not apply to any civil claim for damages for personal injury if the harm resulting from the breach of duty owed to the claimant is or includes -

...

(b) an injury as defined under the Workers' Compensation and Rehabilitiation Act 2003, other than an injury to which Section 34(1)(c) or 35 of that Act applies."

[29] "Injury" is defined in s. 32 of the Workers' Compensation and Rehabilitation Act 2003 as being:

"An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury..."

[30] Leaving aside the reference to s. 35 the operation of the exception was discussed by the Court of Appeal in Newberry v Suncorp Metway Insurance Limited[3].

[31] In Newberry it was resolved that s. 5(b) should be read as if the words "if the claim is that" were inserted before the words "the harm resulting" in the second line.[4] This focuses attention on the form in which the claim is framed. If the matter is considered prior to the institution of proceedings, as in Newberry, the relevant claim is the notice of claim. If, as here, the matter is considered at trial, the relevant claim is the pleadings on which the action is fought.[5]

[32] Mr Clement has not sued his employer. He has sued only the driver of the vehicle in which he was injured. There is no reference to employment in the statement of claim.

[33] By its amended defence, the Second Defendant pleaded the operation of the Civil Liability Act 2003. In an amended reply Mr Clement challenged the applicability of the Civil Liability Act and alleged that the injury arose out of the employment because the employer was vicariously liable for the negligence of the driver and because Mr Clement was required to undertake the journey by his employer. It was also alleged that the employer owed Mr Clement a duty to ensure that reasonable care was taken to make the premises of third parties at which he was required to carry out his employment - such as the mine road where the accident occurred - reasonably safe.

[34] This case was factually different from Newberry. In Newberry, the worker was injured through the negligence of a third party who drove on the wrong side of the highway between Mackay and Proserpine while the worker was engaged, as a passenger, on a journey in the course of his employment. In concluding that any reference to employment in that case would be extraneous to the claim, Keane JA in the Court of Appeal said:

"[35] ...[On the construction of s. 5(b) of the CLA which I would adopt], the exclusion is not limited to cases where the employer of the injured worker is a defendant; in some instances the exclusion will cover claims against persons other than an employer. At the same time, however, in order to fall within the exclusion, it must be possible to say that the claim against a person other than an employer is truly a claim in relation to a 'work injury'. The claim will be such a claim only where it is alleged that the employment was a significant contributory factor to the occurrence of the injury for which the person against whom the claim is made is alleged to be liable. In such circumstances, therefore, it would be possible for a claim against a person other than an employer to be excluded from the coverage of the CLA and, at the same time, excluded from the coverage of the damages provisions of the WCRA, which regulate only damages claims against employers. It may be that the legislature had it in mind that, in practice, it was unlikely that claims for an injury to which employment was alleged to be a significant contributing factor even though the injury was also caused by the fault of a person other than the employer, would not also involve a claim for damages against the employer. It is not profitable, however, to speculate further on the considerations of policy which lay behind the language of the statute."[6]

[35] The resolution of whether this is such a claim depends on the pleadings rather than on the facts proved.[7]

[36] Counsel for the Second Defendant applied to strike out the paragraphs of the amended reply to which I have referred on the grounds that they were embarrassing. I am inclined to agree. The critical elements of Mr Clement's claim are a duty of care owed by the Second Defendant, breach of that duty and consequential loss suffered by Mr Clement. All of these elements are set out in the statement of claim. The relevant part of the additional pleading goes only to the statutory regime which regulates the quantification of that loss. Such matters are not germane to the cause of action and are not required to be pleaded.[8]

[37] The Second Defendant also submitted that this claim was covered by s. 35 of the Workers' Compensation and Rehabilitation Act 2003 and for that reason s. 5(b) of the Civil Liability Act 2003 did not apply. Section 35(1)(a) refers to a journey between the worker's home and place of employment. Subsection 35(3) provides that a journey to or from a worker's home starts or ends at the boundary of the land on which the home is situated. There is no corresponding definition in relation to the place of employment.

[38] Mr McMeekin SC submitted that a homeward journey should not be deemed to have commenced until the vehicle leaves the boundaries of the land where the employment is carried out. I am unable to agree.

[39] In this case, the land where the employment was carried out is very large. The place where the work was carried out is relatively small. The work was on the dragline bucket. It does not seem that Mr Clement had any valid reason for being at any place on the mine property not proximate to the dragline other than for the purpose of traversing it in order to go home. Once the workers cease their physical activities, get into the vehicle in which they are to be driven home, leave the place where they had carried out their activities and drive in the direction of home, it seems to me to be unrealistic to say they have not left the place of employment or commenced the homeward journey. This seems to be so even where it may take some time and distance to leave land owned or controlled by the employer or, in this case, the owner of the land containing the place of work. In this case the place of employment to which s. 35(1) refers is the place where the dragline is located. There is no apparent reason why that place should necessarily be taken to refer to the boundaries of a property. Whether the place of employment is defined by the boundaries of a particular allotment or parcel of land is a question of fact. If the place of employment were a warehouse or shop, it might be convenient to define the place of employment by reference to the boundary. In other cases the area of land and the limited nature of the activity being conducted may be such as to make that unrealistic. I think this case falls into that latter category.

[40] I am satisfied that Mr Clement's damages are governed by the provisions of the Civil Liability Act 2003.

[41] Schedule 4 of the Civil Liability Regulation 2003 makes provision for awards of general damages in cases to which the Act applies. The starting point is to consider the statutory scheme. The operative part of Schedule 4 provides:

"Injury mentioned in sch 4

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

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

3 Multiple injuries

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

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

Note--

This section acknowledges that--

• the effects of multiple injuries commonly overlap, with each injury contributing to the overall level of adverse impact on the injured person; and

• if each of the multiple injuries were assigned an individual ISV and these ISVs were added together, the total ISV would generally be too high.

4 Multiple injuries and maximum dominant ISV inadequate

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

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

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

(a) must not be more than 100; and

Note--

Under the Act, section 61(1)(a), an ISV is assessed on a scale

running from 0 to 100.

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

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

(5) In this section--

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

[42] Having regard to the medical evidence, an unusual feature of this case is that Mr Clement has suffered three equally severe injuries each assessed as constituting a whole person impairment of between 5% and 6%. There is not, in fact, any single dominant injury. However, in determining a dominant ISV for calculation purposes, either item 88 or item 93 is applicable. Both items have a maximum ISV of 10. The effect of three equal impairments is that Mr Clement has a whole of person impairment of 15% to 18%. The comment contained within item 88 and item 93 is that an ISV of 10 is appropriate where there is a whole person impairment of 8% caused by soft tissue damage.

[43] Clearly an ISV of 10, even if increased by 25% to 12.5 pursuant to s. 4(3)(b) of the 4th Schedule is not an adequate compensation for a whole person impairment of 15% to 18%. It also ignores the undoubted aggravating effect of the shoulder and hip/groin injuries, both of which are continuing sources of distress to Mr Clement.

[44] By way of comparison, a whole person impairment of 25% is equated to an ISV approaching 50 in item 95. Item 90 suggests that an ISV of not less than 36 is appropriate for a 25% whole person impairment and approaching 60 for a 45% whole person impairment. Item 86 suggests that a whole person impairment of 25% should be reflected by an ISV approaching 40. Other examples include items 91, 105, 107, 111, 121 and 126.

[45] Each of these items relates to different orthopaedic injuries. They do, however, suggest that the intention of the legislature was that the ISV should generally be proportionate to the percentage impairment of the whole person when considering orthopaedic injuries. Uniformly, in all cases where a percentage whole person impairment for orthopaedic injury is given by way of illustration, the ISV exceeds the percentage impairment, usually by at least 20%

[46] Applying this logic to this case, an ISV exceeding the whole person disability by 20% would be between 19 and 22.5 in rough terms. To give effect to the expressed intention of Schedule 4, this should be discounted to reflect the overlapping effect of multiple injuries. Conversely, it should be increased to reflect the lesser injuries (in percentage impairment terms) that have not otherwise been taken into account. In the result I have determined that in this case the appropriate ISV is 20.

[47] By application of the calculations in s. 62 of the Civil Liability Act 2003, an ISV of 20 equates to an award of general damages of $26,000.

[48] If I am wrong in my determination that the Civil Liability Act 2003 applies to this claim I assess general damages at Common Law at $50,000.

[49] There was disagreement between the parties as to the principles to be applied particularly in relation to past and future care. This related to the maintenance and expansion of the plantation.

[50] Mr Clement claims damages for the loss of his capacity to do much of the work on the plantation himself. The plantation is operated as a commercial enterprise as appears from Mr Clement's tax returns. The work is provided gratuitously by Mrs Clement, or at a rate of $15.00 per hour by Ms Smith, a neighbour. Ms Smith was not able to indicate how many hours she assisted Mrs Clement or how much she had been paid, although in Exhibit 2 Mr Clement says that she has been paid for 29 hours over roughly two years since the accident. The evidence establishes that Mr Clement had worked about a day and a half a week prior to being injured. This represented the bulk of his recreational time and could not have been increased by Mr Clement without affecting his principal employment.

[51] Section 59 of the Civil Liability Act 2003 regulates the circumstances in which a claim can be made for gratuitous services. As far as that section is concerned, I am satisfied that the need for the services, at least to the extent that Mr Clement had previously done the work himself, arose solely from the accident. These were provided for at least 6 hours a week and for at least 6 months. I am troubled, however, by the requirement that the services be necessary.

[52] But for the provisions of s. 59 I would have no hesitation in awarding the amount claimed. It is based on one and a half days work per week for five years at a rate of $15.00 per hour agreed between the parties as reasonable. This amounts to $180 per week with a multiplier of 232, which the plaintiff's senior counsel has rounded down in his supplementary submissions to $40,000. Five years appears to me to be a reasonable period. After that period, presumably, the plantation would be established and the work necessary to maintain it would be significantly reduced.

[53] It was submitted by Mr McMeekin SC that under common law principles it makes no difference whether the gratuitous services claimed are personal or commercial.[9] Of course, some of the services have in fact been paid for. This does not make a significant difference since the actual payments would be recoverable as loss occasioned by the accident, although under another head of damage. Here the paid services represent only a small part of the necessary work. The claim if it is to be allowed must depend on the gratuitous portion of the services provided by Mrs Clement.

[54] In this case the plantation was already partly established at the time of injury. A failure to maintain the plantation thereafter would have created a financial loss being the commercial profit from the mature trees. Of course, any such loss was subject to the vagaries of any agricultural enterprise. The inability of Mr Clement to pursue the venture because of the accident would have resulted in an entitlement to damages for loss of the opportunity to make that profit. The loss in this case was more than mere speculation. The plantation was already partly established when Mr Clement was injured.

[55] In order to avoid that loss Mrs Clement has voluntarily provided the services that Mr Clement would otherwise have provided. It seems to me that in that sense the services gratuitously provided were "necessary". Whether services are necessary will depend on the facts of the particular case. Necessary in this case means necessary to avoid another and potentially greater loss. Adopting this approach seems to me to give effect to the requirement in s. 59(1)(a) as a separate and additional requirement from that in s. 59(1)(b).

[56] It follows, therefore, that I allow the claimed $40,000 for gratuitous services. As I understand the supplementary submissions this amount is claimed to represent the value of services provided by Mrs Clement in relation to the plantation both in the past and for the future.

[57] The parties are in general agreement concerning the quantum of past economic loss. Mr Stenson for the Second Defendant submitted a figure of $65,000 which was just a rounding down of Mr McMeekin SC's figure of $69,165. I accept the figure of $69,165 set out in exhibit 12.

[58] For the future both parties have adopted approximately the same loss[10] but applied different discount rates. The Second Defendant submits that I should discount the future loss by 40% and the plaintiff submits that such discount should be limited to 10%.

[59] In this case the particular vagaries that might affect the outcome include the demanding physical nature of the job, the existence of degenerative change and the normal risks of unemployment such as downturns in the mining industry. On the other side, the plaintiff is highly motivated and has a child young enough to be likely to remain dependent on him up until his normal retirement age. It is difficult to place much emphasis on the degenerative change in the light of Dr Cook's assessment that it is consistent with Mr Clement's age and Dr Cook's further evidence that persons with normal rates of degeneration often continue heavy labouring jobs until retirement at age 65.[11]

[60] In this case I am satisfied that a discount for contingencies of 15% properly reflects the vicissitudes of life in the light of my findings of fact. The Second Defendant's submission that I should discount at a much higher rate was based on the submission, which I have not accepted, that Mr Clement's pre-existing degenerative changes made it unlikely he could complete a full working life. For future economic loss I award $227,375 being $428 per week for 18 years[12] discounted by 15%.

[61] In relation to the lost meal allowances both sides have submitted I should allow $37,500 for the future and I do so.

[62] Additional travel expenses incurred in maintaining employment are allowable as a cost of mitigation of the loss caused by the accident.[13] Although in this case it is convenient to assess them as a separate figure they would ordinarily be considered as a component of past and future economic loss. For travel expenses the Second Defendant submits I should allow a global sum. This is consistent with what I did for the future in Henderson v Dalrymple Bay Coal Terminal.[14] The plaintiff submits he should receive $263.12 per week discounted by 40%. The plaintiff's calculations do not allow for leave periods. At four weeks per annually leave represents 7.6% of each year. Discounting the amount claimed by 7.6% leaves $23,804.90. Consistently with the approach adopted by me in the past I allow a global sum of $60,000. This reflects the likelihood that, being no longer suited to heavy work, a significant proportion of Mr Clement's work opportunities will be in Mackay itself. Mr Clement is likely to incur additional travel expenses unless he moves closer to the main centre of employment or obtains work closer to home.

[63] I accept the Second Defendant's submissions in relation to future medical expenses. No evidence was led to substantiate the benefit of the massage claimed in paragraph 118 of Exhibit 2.

[64] On the basis set out above I assess damages as follows:

General damages 26,000.00

Past economic loss 69,165.00

Interest on $46,998.22 @ 2.705% for 2.16 years[15] 2,791.69

Special damages paid by plaintiff[16] 1,591.86

Interest at 2.705% for 2.16 years 43.06

Special damages paid by WorkCover 9,262.40

Fox v Wood 8,881.00

Future Medical[17] 3,763.77

Meal allowance 37,500.00

Additional travel cost - past 23,804.90

Additional travelling cost 60,000.00

Griffiths v Kerkemeyer 2,112.00

Interest at 2.705% 119.30

Future loss of income 227,325.00

Past superannuation at 9% 6,224.85

Future superannuation at 9% 20,459.25

Gratuitous services in relation to the plantation 40,000.00

-------------

TOTAL 539,044.08

[65] I give judgment for the plaintiff against the Second Defendant in the sum of FIVE HUNDRED AND THIRTY-NINE THOUSAND AND FORTY-FOUR DOLLARS AND EIGHT CENTS ($539,044.08).

[3] [2006] QCA 48.

[5] Ibid, paragraphs [25] and [26]

[8] Cf Chapter 6 ,Part 2 of the Uniform Civil Procedure Rules

[9] Counsel referred me to Thomas v Eyles (1998) 28 MVR 240; BC 9804586; O'Keefe v Schluter [1979] Qd R 224 at pp224 to 225; Randall v Dul (1994) 13 WAR 205 and Cockshell & Anor v Australian National Railway Commission (1984) Aust. Torts Reports 80-024 in support of this conclusion.

[10] In fact the plaintiff has used $428 per week and the defendant has used $439.

[13] Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 490-491, 495.

[14] [2005] QSC 124 at [48].

[15] Based on the amount allowed less the Workers' Compensation payment of $22,166.78

[16] The difference between the parties figures represents 29 hours work for Ms Smith at $15.00 per hour making $435.00. I accept that paragraph 111 of the quantum statement is sufficient proof of the amount paid in the past.

[17] $266 per year based on paragraphs 117 and 119 of exhibit 2 (multiplier 866)