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[2006] QSC 234
General information, not legal advice.
Supreme Court of Queensland
2006-06-16
Cullinane J
Original judgment source is linked above.
[1] The plaintiff claims damages for personal injuries sustained by her as a result of a motor vehicle collision which occurred on 6th February 2001.
[2] Liability has been admitted.
[3] The plaintiff was born on 24th July 1982 and was thus 18 at the time of the accident and is now 23. She is a single woman.
[4] She sustained an injury to her cervical spine in the accident. The injury was a soft tissue one, there being no evidence of any structural damage to the spine. Since that time she has complained of pain and stiffness of the cervical spine and shoulders with associated headaches.
[5] The plaintiff continues to complain of these symptoms. There are claims that these have resulted in a significant impairment of her capacity to work and limit her activities generally.
[6] There was a significant dispute between the medical specialists who gave evidence before me as to the extent of the plaintiff's disability, the consequences to her flowing from it and what the likely future of the disability is.
[7] About a year after the accident the plaintiff developed some symptoms in her lower back. There is no evidence to suggest these are related to the accident that I am concerned with and in any case it would not seem that they impose any significant limitations upon her.
[8] The plaintiff was educated to grade 12 level leaving school at the end of 1999. She lived with her family in Ingham but moved to Townsville in December 1999 where she commenced full time work at Discount Jeans. She was in good health and was an active sportswoman prior to the accident.
[9] At the time of the accident the plaintiff was working as a swimming instructor at Tobruk Baths for some 20 hours per week. She was off work for a few weeks before returning on a limited basis, subsequently returning to the same number of hours she had been previously working.
[10] She obtained employment as a bar attendant in a nightclub in late 2001. She says that this work caused her a good deal of pain and discomfort and she was unable to continue. At the beginning of 2002 she obtained some work for a short period during university holidays as a nanny and the trip to a grazing property caused a significant aggravation of her symptoms. She found the work of caring for two young children very difficult and productive of a lot of pain resulting in her ceasing the work. Financial records suggest she also worked at Long Tan Pool for a period during this time and her evidence suggests she received some other income.
[11] In May 2003 she moved to Sydney to live with friends. She desired to experience city life and whilst there obtained work as a swimming instructor working 8 hours a week and about 10-15 hours per week as a bar attendant. She continued to suffer symptoms in her neck and headaches and returned to Townsville in July 2003. She made it clear however that her reason for returning was that she found it difficult to live in Sydney because of the expense.
[12] Upon her return she commenced employment at the Long Tan Pool as a swimming instructor and worked 1-2 hours per week in that capacity.
[13] She then obtained a position as a sales assistant at a clothing store in Flinders Mall in November 2003 and worked there until November 2004. She said that she suffered a good deal of pain in this position because of the activities involved and ultimately found she could not put up with the pain and ceased employment in November 2004. Bending, stooping, stretching and lifting are the type of activities which she finds painful.
[14] Following that she commenced to work again at the Long Tan Swimming Pool and has continued to work there until the present. She works approximately 27 hours per week and much of her work involves administrative type tasks with some relatively limited teaching of swimming classes. Her employer gave evidence and said that the plaintiff appeared to her to be in pain when performing certain tasks and that were she able to perform it, more work would be made available to her.
[15] The plaintiff struck me as a bright and outgoing person which is how her father, who gave evidence, also described her. I formed an overall positive impression of her although there was one aspect of her evidence which I think justifies approaching what she says with some care.
[16] The claim for future economic loss is put before the court on two bases. The first is that the plaintiff who was enrolled at James Cook University undertaking a degree in journalism at the time of the accident has, as a result of the injury sustained in the accident, been prevented from completing these studies and thus earning income as a person with those qualifications. The alternative is based upon a general restriction upon her capacity to work in certain occupations at least on a full-time basis.
[17] The evidence shows that she initially enrolled as a part time student but in order to obtain an allowance she became a full time student. At the end of 2001 she was called upon to show cause by the university because she had failed all but one subject. In her response she makes no reference to any difficulties associated with the injury which she had suffered playing any role in her failing to pass her subjects. She continued with her studies although there was some change in the course in which she was enrolled and again was called upon at the end of 2002 to show cause. On this occasion again she made no reference to her injuries having played any role in her failure to pass the exams. She acknowledges that she overstated her position when outlining her response on the first occasion and on the second occasion acknowledges that some of what she said was not really relevant to what had happened. The primary reason she advanced on each occasion was her work commitments.
[18] Her explanation for not making any reference to the accident or the difficulties that she suffered as a result is that she thought she would be best advised to refer only to temporary causes which would not be ongoing and that if she had informed the university about her ongoing neck problems this may have resulted in them taking an unsympathetic attitude towards her. She says that she had spoken to a lecturer about how she should respond on each occasion.
[19] I accept that the plaintiff had difficulties in sitting at computers and at lectures for extended periods during the time she was studying. However I do not accept that her failure to complete the journalism course (originally Communications, subsequently Marketing) was a consequence of the accident. She was as I have said, working during this time and I think it is at least as likely that she had simply overcommitted herself and was not able to devote sufficient time to her studies given her other commitments.
[20] Her failure to mention the injuries in my view, is significant in this regard although as I have said I accept that she would have had pain and discomfort in relation to some of the activities associated with her studies.
[21] She says that she wanted to continue at university and that her parents were anxious for her to do so and I am prepared to accept that. However I do not accept that the plaintiff has established that her failure to complete the course is a consequence of the injuries she sustained.
[22] The plaintiff called Dr Maguire, an orthopaedic surgeon and Dr Campbell, a neurosurgeon as well as Kathryn Purse, an occupational therapist.
[23] For the defendant, evidence was given by Dr Adam, an occupational physician, Dr Fraser, an orthopaedic surgeon, Dr Weidmann, a neurosurgeon and the plaintiff's general practitioner.
[24] The plaintiff saw her general practitioner on one occasion shortly after the accident and subsequently in 2001 for another cause when she was also complaining of continuing neck symptoms. She left Ingham later in 2001.
[25] Apart from Dr Fraser, all of the specialists who saw the plaintiff noted a significant restriction of movement of her cervical spine.
[26] Dr Maguire saw her on two occasions and on each occasion said there was present marked visual and palpable para-spinal muscular spasm in the cervical area. He saw her on the first occasion in about September 2002 and on the second occasion in September 2005.
[27] In evidence he said that such spasms are not constantly present but are intermittent. They were not present when the other specialists saw her. However Dr Maguire said that their presence indicates damage in the cervical spinal area and they cannot be falsified. This must, in my view, be regarded as very significant evidence in support of her claims that she has the cervical symptoms she describes.
[28] He found significant restriction of movement.
[29] He assessed the plaintiff as having a 5% loss of function of the body in accordance with the AMAM guidelines placing her in DRE category 2.
[30] He thought that she was likely to have difficulty with employment, particularly with work requiring prolonged sitting such as clerical type duties or computer work. In his opinion she may have her ability to engage in remunerative employment affected to the point where she may have to modify her employment opportunities. He went on to say:
"It is not expected however that she will not be able to engage in any form of remunerative employment but rather that she will have to modify the way she undertakes her employment."
[31] In evidence he explained that what he meant by that:
His Honour: "It's a little equivocal, but you say - let us take the first one, "She may have her ability to engage in remunerative employment affected to the point where she may have to modify her employment opportunities"?
Dr Maguire: "Yes."
His Honour: "It is not expected, however, that she will not be able to engage in any form of any remunerative employment, but rather that she'd have to modify the way she takes her employment. Now, do I read that as you're saying that there is no form of remunerative employment that she would not be able to engage in, but that she would have to modify the way in which she undertakes it, or that you are saying she won't be excluded from all employment, but rather she will have to modify how she undertakes it? It - it's a little equivocal? I think it's equivocal because I think it really depends on what type of activities Ms Langton would undertake. So anything of a more manual nature or like that would require prolonged sitting, particularly at computer stations, she may have difficulty with."
Dr Maguire: "Yes - And that to me would basically cover most types of employment. So my concern is that the more active the employment or the more triggering of her cervical spinal spasm and headaches then - that she may be required to work lesser hours, even to the point where she may not be able to work at all."
It was his view that her cervical disability was permanent given its persistence since 2001.
[32] Dr Campbell who examined her on one occasion on 25th October 2005 found a decreased range of movement by 50% in all directions of the cervical spine and pain at the extremities of movement. There was tenderness and guarding over the cervical and para-spinal muscles bilaterally.
[33] He assessed her impairment as 7% of the whole person by reference to the DRE cervical category 2 criteria. He also thought that there had been an impairment of her future earning capacity and that the impairment of the cervical spine which he saw was permanent.
[34] Dr Adam, a specialist in occupational medicine called by the defendant found significant restrictions of movement of the cervical spine and noted a difference in her shoulder height with the right shoulder much lower than the left. Other doctors did not mention this. He says that this is a consequence of the way in which the plaintiff holds herself to try to obtain the most comfortable position.
[35] In his report he expressed the view that she had a partial incapacity to work and that she was restricted in tasks involving sustained or repetitive lifting and stooping. He thought however that her position could be significantly improved by a course of physiotherapy and physical conditioning which he describes in his report.
[36] The plaintiff has had some physiotherapy and currently has regular massage but Dr Adam did not think that what she had done to the present was sufficiently structured to provide the full benefit of what he had in mind.
[37] Dr Weidmann, a neurosurgeon called by the defendant, thought that the plaintiff had a nil percentage permanent impairment of the whole person by reference to the guidelines. He placed her in DRE cervical category 1 rather than DRE cervical category 2 partly because there was no asymmetric loss of movement. It is somewhat difficult to understand as Dr Weidmann acknowledged why this is regarded as more significant than a symmetric loss of range of movement.
[38] However he found when he examined her that she had a significant (50%) reduction in range of movement in all directions. She complained to him of pain and stiffness in her right neck which radiates across the tops of both shoulders and occasionally into her upper arms.
[39] He accepted that she would probably have some impairment of her earning capacity and was prepared to defer to the opinion of others in this regard. She is in his view capable of performing her present work but as has already been mentioned this is limited in terms of the number of hours she works.
[40] The evidence of Dr Fraser, the orthopaedic surgeon who was called by the defendant and who saw the plaintiff on the one occasion in December 2002, is notably different from that of the others to whom I have referred. He says that when he saw her she reported no current limitations of activity and her spine was straight and non tender and there was a full active range of motion in all directions.
[41] He says that at the time he saw her, she swam and participated in the activities of a surf club and played touch football.
[42] The plaintiff says that she was a member of a surf club and played touch football before the accident but had not returned to these since although she had attempted to return to netball.
[43] I am inclined to think that there was some misunderstanding on the part of Dr Fraser in relation to this matter and that he has mistaken the effect of what the plaintiff told him. I do not accept that she told him she had returned to surf lifesaving activities or touch football.
[44] It is also difficult to understand how he could have detected no restriction of movement in December 2002 when each of the other specialists detected this. Dr Maguire saw her only a few months before Dr Fraser. The other specialists have seen her since. It can be accepted that the cervical symptoms that the plaintiff suffers from fluctuates but it is difficult to accept this as an explanation of how no restriction of movement could have been present at all.
[45] He thought that her soft tissue had resolved fully and "is of no further concern".
[46] I thought that the plaintiff's evidence was truthful in relation to the symptoms that she says she suffers from and has suffered from since the accident. She sat rather stiffly in court with her back and neck held straight.
[47] The evidence of the various medical specialists to whom I have referred satisfies me that she has suffered and continues to suffer from a disability of the cervical spine which produces symptoms in the nature of pain and stiffness and Dr Fraser's evidence does not cause me to doubt this. I am inclined to think that the examination may not have been as complete as it might have been. Dr Fraser tended to be rather dogmatic in giving his evidence and became rather unhappy at the turn cross-examination took at times.
[48] The plaintiff struck me as a young woman of some initiative.
[49] She has now returned to live with her father. She says that this has been because of the difficulty she has with a number of domestic tasks. Some of these she can do but very slowly and at the cost of significant pain. These include cleaning floors or doing the laundry. She has difficulty ironing and doing any cleaning particularly overhead. She can tend to her personal care and would prepare meals if necessary but generally relies upon her family for most of the cooking. She also has difficulty with shopping.
[50] The medical evidence suggests that whilst the plaintiff can do virtually anything for a short time she cannot perform a number of activities for any period so that in the course of a day if she carries out activities which trigger the pain this then has an impact upon what she can do at work and domestically during the balance of the day.
[51] The disability at least as expressed in percentage terms by Dr Maguire and Dr Campbell, is not great, and is soft tissue in nature. As already mentioned Dr Weidmann thinks she has no percentage loss of function. However it has, I am satisfied, a very substantial effect upon the plaintiff's life. A young physically fit and sports-minded person (she had a particular interest and had significant achievements in surf life saving), she is now at the age of 23 unable to participate in certain sports and a variety of activities are either too painful for her to perform at least for any length of time and this will substantially remain the case even making allowance for improvement. I think Dr Adams' opinion may be a little optimistic but accept there will be some improvement if she undertakes the course he suggests. Nonetheless she will I am satisfied be left with a disability of the spine which limits her capacity for full time work and her activities generally.
[52] She has had a very significant impairment of her earning capacity. Whilst I think the evidence justifies a conclusion that there are some full time occupations open to her which do not require much in the way of physical activity and in particular do not require her to perform those tasks such as bending or sitting with the head forward or lifting significant weights, particularly at shoulder level or above the head or stretching. The sort of occupations with which she will have some degree of difficulty to use Dr Maguire's words "pretty much cover the field".
[53] I assess the plaintiff's general damages in the sum of $45,000 and I allow interest on $20,000 at the rate of 2% for 5.4 years producing a figure of $2,160.
[54] So far as past economic loss is concerned, the plaintiff has initially calculated this upon the basis of the part time work which she would have been capable of performing consistent with full time study but for her injuries. This is based upon the number of hours she was working at the Tobruk pool prior to the accident. The claim for the next period is based upon a rate of $520 per week which is said to be derived from the sales assistant award. In fact the award rate is somewhat less ($495). Thereafter the claim is made by comparing what she has earned working part time in her current position and what she might have earned full time. A figure of more than $600 is adopted for full-time work. There is however no basis provided for this rate. I think that the current rate per hour she receives and the net award rate referred to provide some guide. It is also clear that some income actually earned has not been included in the calculations. This is income from a nightclub, the amount of which appears in Exhibit 3 and some other unspecified income referred to in her first show cause notice.
[55] The defendant contended that it was impossible to do any more than select a global figure for past economic loss primarily based upon her present part time earnings as compared to what she might have earned full time and make allowance for some losses during the period after the accident and until she commenced full time employment upon her return from Sydney. The defendant contended for a figure of $20,000.
[56] The rates chosen by the plaintiff are plainly too high. On the other hand I think that the defendant has not made sufficient allowance for the losses the plaintiff has suffered as a result of her inability to work on a full time basis during this time. Doing the best I can I allow the sum of $35,000 for past economic loss. I allow interest at the rate of 2.75% for 5.4 years producing an amount of $5,197.
[57] I allow loss of superannuation entitlement at 9% producing an amount of $3,150.
[58] So far as future economic loss is concerned I think that the plaintiff on my assessment of her would have sought to do the best she could in the way of taking employment opportunities. This remains the case.
[59] Nonetheless as a young woman she has been left with a significant restriction upon her earning capacity and appropriate allowance must be made for this. There are of course the necessary contingencies and vicissitudes of life which must be allowed for. For much of her life she may be restricted to part time work. On the other hand she may be fortunate in obtaining some light work on a full-time basis which is suitable for her. On any assessment the impact on her earning capacity has been very substantial.
[60] I allow the sum of $200,000 which reflects something like a loss over 35 years of somewhat over $200 per week discounted by reference to the 5% tables.
[61] I allow loss of superannuation at the rate of 9% producing an amount of $18,000.
[62] There are substantial claims for past and future care and assistance. The rates are agreed at $18 per hour for past care and assistance and $20 per hour for future.
[63] I accept that the plaintiff has had and will continue to have the need for assistance in a number of areas. Some of these tasks she can do. They are productive of significant pain and will limit what she might then be able to do in the way of employment as I have said. Some of them she can do very slowly and others she cannot do or ought not attempt to do at all.
[64] Kathryn Purse, an occupational therapist has assessed a need of about three to four hours per week. I accept her assessment but some allowance has to be made for some improvement in her symptoms and also for the fact that as she aged she may have had a need for some of this assistance in any case.
[65] I allow in respect of past care and assistance a sum of $12,500 I allow interest at the rate of 2.78% for 5.4 years producing a figure of $1,865.00.
[66] So far as future care and assistance is concerned, I am satisfied that the plaintiff will require significant assistance in the coming years. There are some tasks which she currently does not have the need for some associated with the maintenance of a house and garden but may in the future. Whilst I accept broadly what Kathryn Purse says I think there should be some scaling down of the claim for the reasons I have given.
[67] The claim advanced has been heavily discounted. Nonetheless I think some further discount is necessary. Doing the best I can I allow the sum of $30,000 for future care and assistance.
[68] There is a substantial claim for future expenses. These include pharmaceuticals which are supported by the evidence. In addition there are claims for attendance at doctors. She currently receives massage but does not see her doctor regularly. On the other hand the course suggested by Dr Adams would have to be paid for. I think a figure of $15,000 is a reasonable allowance to make.
[69] Special damages agreed upon in the sum of $6,000 and interest in the sum of $500.
[70] The total of this amount is $374,363.00.
[71] I give judgment for the plaintiff against the defendants in the sum of $374,363.00.
Langton
West & Suncorp Metway