Nichols v Curtis and QBE Insurance

District Court of Queensland|2010-02-19

Quinlan Miller and Treston for the Second Defendant

**[1] The plaintiff claims damages for personal injuries sustained by her as a result of a single motor vehicle collision with a shed at approximately 11.30 pm on 11 June 2004.

[2] Liability is agreed between the plaintiff and the second defendant ("insurer"). The plaintiff's damages are to be reduced by 40 per cent by that agreement.

[3] The plaintiff was born on 23 August 1985. In July 1998, at almost 13 years of age, the plaintiff fell from a horse injuring her cervical spine. There was no fracture nor dislocation. The plaintiff rode her bicycle home afterwards. There were no long term symptoms experienced by the plaintiff.

[4] The plaintiff fell on her tail bone in February 2001 when aged 15. She believes that she dislocated her tail bone. After two days bed rest she recalls no further problems from it.

[5] The insurer's counsel submitted that the injuries in 1998 and 2001 were significant and were explanations for the plaintiff's alleged incapacities. I reject the submission on two bases.

[6] Firstly, I am satisfied that the plaintiff was truthful in her evidence that they caused no long term symptoms. There was no medical opinion evidence that they were a cause of symptoms related to the neck since 2004. The evidence does not support the insurer.

[7] Secondly, if the second defendant wished to allege that the early injuries caused relevant incapacities it should have done so in the pleadings[1]. It did not. The insurer properly raised in its defence a pre-existing psychological condition as a basis for denying the plaintiff's allegations that neck injuries pain caused diminished capacity to earn. It is unfair for the insurer to raise this causation issue for the first time in submissions. I distinguish the submission relating to early injuries from a different submission made by the insurer that incapacities are caused by low and mid back pain. I deal with that further submission below.

[8] The plaintiff completed Grade 8 in 1998. In 1998 she went from her mother's home in Bundaberg to live with her father and his partner and step children at Woodford. Her mother was an unemployed alcoholic. Her father was a concreter in regular employment. Her father found her a job at a local real estate office for a few hours per day on about two days per week. She did this for about three weeks. Problems with her step family caused the plaintiff to return to her mother's home in Bundaberg in March 1998 where she continued her grade 8 schooling. She is recorded as having been absent from her school at Bundaberg for 117 days between March 1998 and April 1999. She had finished school by the age of 14.

[9] Aged 15, the plaintiff entered into a relationship with an older man who abused her physically and emotionally. A medical record shows that she was then drinking five spirit drinks each night. She suffered depression and engaged in harming herself. She suffered several scars on her arms from that time. She would pick at her skin and has scars from her waist through to her ankles. She wore jeans to hide her scars and would avoid places where she could not wear jeans. She denied self harm in her cross-examination by the insurer's counsel. The insurer's counsel did not submit that she should be believed in her denials. I accept that she did engage in self harm in her mid teens[2].

[10] The plaintiff did not obtain any employment while residing in Bundaberg. She received social welfare payments.

[11] The plaintiff left Bundaberg to return to reside with her father at Woodford when she was about 17. In about early 2004 the plaintiff obtained work at Woodford Hydroponics for a few days. She left that job because she was forced to change residence when a lease ended. It was only while living with her father from about the age of 17 that she was receiving parental advice to get a job or do some study. When asked to explain why she did not obtain any more substantial employment in the 12 to 18 months that she resided at Woodford immediately before the accident on 11 June 2004, the plaintiff explained that she was young, had only just come back from Bundaberg and did not know the way the world turned until her father urged her to get a job or to study. I accept that to be a partial explanation.

[12] The plaintiff advised a career counsellor in 2006 that she was scared when faced with a new situation, was insecure and had an alcohol problem. Neither counsel disputed the truth of these recorded allegations. I accept them. I find that those problems affected the plaintiff during the years since she was 15. They will have been another partial explanation for her failure to work.

[13] The plaintiff was a backseat passenger when the motor vehicle collided with fencing and a shed. She sustained a puncture laceration on the left side of her face. An ambulance attended and transported her to Caboolture hospital. A steri-strip was applied. There is a contest as to whether she sustained a neck injury.

[14] The insurer submits that the plaintiff sustained no neck injury. Several pieces of evidence are relied upon to support the insurer's submission. The records of the ambulance service relating to the transport of the plaintiff to the Caboolture hospital contain no reference to neck injury. The records of the Caboolture hospital show that at 3.10 am on 12 June 2004 a record was made that the plaintiff had no neck pain. The only treatment given was a steri-strip which was placed over the plaintiff's laceration. The plaintiff had been drinking alcohol prior to the motor vehicle accident. At the hospital she was argumentative and uncooperative. I accept her evidence that she was upset at the hospital because she perceived that a male companion should have been receiving medical treatment. There were no contemporaneous complaints of neck pain recorded.

[15] I accept the evidence of Dr Wallace that after an acceleration/deceleration injury to the cervical spine, unless there is vertebral bony injury or dislocation of the neck, there may be no complaints of neck pain for a few hours or even days. Dr Wallace suggested that initially there may be no complaints until the adrenalin has worn off. Recalling that the plaintiff had been drinking alcohol and was agitated at hospital, I am not persuaded that the absence of complaints of neck pain immediately after the motor vehicle accident is significant.

[16] The plaintiff has not obtained physiotherapeutic or chiropractic treatment for her neck in the years since the accident. The insurer also relied upon this. The plaintiff explained that she cannot afford treatment such as chiropractic treatment. She said that she had poor finances and that if she was not living with her boyfriend she would be forced to live with her father. She currently receives $490 per fortnight from CentreLink. I find that at all material times the cost of physiotherapy or chiropractic treatment would have been difficult for her to afford.

[17] While she has seen general practitioners for various matters since the accident, there is no written record of a complaint of neck pain. The insurer relies upon this. The absence of complaints to general practitioners about neck pain was not explained on the basis of cost. The plaintiff alleged that she recalls telling a Dr Spermon or a Dr Fernandez of neck problems. Their records make no reference to it. She recalls advice to do exercises and separate advice to take some Panadol and return if it does not improve. She said she did not return because she expected to be referred to a chiropractor and could not afford one. It is plausible. I find that the absence of recorded complaints to general practitioners is due partly to a realistic expectation that a complaint would simply lead to a referral to a therapist she could not easily afford and was not due to the absence of any symptoms. It does also suggest that the symptoms were not very troublesome.

[18] On 8 June 2006, for the purpose of obtaining a report for use by her in litigation relating to the motor vehicle accident the plaintiff saw Ms Roberts who is a career counsellor. Ms Roberts' report recorded a variety of psychosocial issues raised by the plaintiff which disadvantaged the plaintiff on the open labour market. There was no mention of a neck injury or of symptoms related to the neck in the report. The insurer submitted to the effect that the reasonable inference was that the psychosocial issues were the plaintiff's major disadvantage, that the injury to the spine was minor and was so minor that she had not complained about neck pain to Ms Roberts. I note that on the same day, the plaintiff saw an occupational therapist, Ms Stephenson, and an orthopaedic surgeon and described complaints of cervical spinal pain. I accept that psychosocial issues recorded by Ms Roberts have disadvantaged the plaintiff in the open labour market and that they will continue to do so. The failure of Ms Roberts to record complaints about a cervical injury or to express an opinion about the effect a cervical injury upon the plaintiff's employment prospects is unusual. It does not persuade me that the plaintiff did not sustain an injury to her cervical spine. It does not persuade me that troubling symptoms of a spinal injury were absent on 8 June 2006.

[19] I accept that the plaintiff suffered injury to her cervical spine in June 2004 because there were objective signs of injury found by an orthopaedic surgeon, Dr Wallace, upon his examination on 8 June 2006. Dr Wallace found an asymmetric range of lateral rotation to the right which was restricted by muscle guarding and pain. It was explained in evidence that muscle guarding is muscle spasm and that it is an objective sign which can be detected. Dr Wallace detected it. The insurer did not challenge that fact. The orthopaedic specialist called by the insurer to give evidence was Dr Fraser. He expressed the opinion in October 2006 that the plaintiff had sustained a strain of the supporting soft tissue structures of the cervical spine. He gave a different opinion on 1 December 2009 that the plaintiff "may have" sustained a strain of the supporting soft tissue structures of the cervical spine. Dr Fraser did not find objective signs of the soft tissue injury. It was explained in evidence and I accept that muscle guarding may occur at some times and not at others. Dr Fraser's failure to observe objective signs of a soft tissue injury cannot be conclusive that there was no injury. Because of the unchallenged evidence of Dr Wallace, and its consistency with observations by Ms Stephenson, the occupational therapist, I find that the plaintiff sustained soft tissue injuries to her cervical spine in the motor vehicle accident in June 2004.**

**[20] The puncture wound has left a tiny faint scar behind the hairline on the left side of the plaintiff's head and she can conceal it with her hair.

[21] Dr Wallace expressed the opinion in June 2006 that the plaintiff's condition was then stable and stationary, that her ongoing care should consist of simple analgesia, stretching exercises and local heat as required. He accepted the truth of her complaints at that time. They were that she had cervical spinal pain worse on the right side and worse with flexion; that the pain was aggravated by prolonged sitting and associated with occipital headaches and that the plaintiff suffered some positional nocturnal pain. There was no challenge to Dr Wallace's opinion that the condition was then stable and stationary. I am not required to accept the evidence of Dr Wallace simply because there was no challenge to it. The absence of a challenge to it is a matter I take into account. There was different evidence from Dr Fraser to the effect that continuing symptoms were not consistent with the 5.5 years that had elapsed since the motor vehicle accident nor with Dr Fraser's clinical examination which revealed that the plaintiff moved her head and neck freely.

[22] The plaintiff gave evidence consistent with the continuing stationary condition which Dr Wallace expected. The plaintiff regards her symptoms as causing more problems now than in the past. However that seems to be because she is having more trouble sleeping now than in the past. It was not suggested that the intensity of the pain or its frequency had increased. The plaintiff tosses and turns at night. This is consistent with symptoms she reported to Dr Wallace in June 2006. She uses several positional pillows. If the plaintiff sits down for an hour and a half she will suffer a headache. She treats it with rotation exercises and stands up and stretches and walks. Dr Wallace expected that she would have difficulties with heavy manual work, process working and any receptionist work and that she would be able to do some sedentary work provided she was able to get up, stretch and move around. Consistent with that opinion, the plaintiff gave evidence that she fills her laundry baskets to half. An occupational therapist reported that the plaintiff has discomfort in her neck on lifting a 5 kilogram weight from floor to bench height.

[23] Evidence emerged of pain in the plaintiff's mid and low back region. The report of Ms Stephenson, occupational therapist, includes a pain diagram showing pain in the region of the cervical spine but also pain in the low back. The statement of claim gives particulars of personal injuries which include pain in the cervical spine radiating out through the left shoulder. There is no claim for or particulars of pain in the area of the mid back or low back. Neither orthopaedic specialist commented upon the cause of pain in the mid or low back. Neither expressed an opinion that it was related to an injury to the cervical spine. Dr Fraser said it was not consistent with the injury suffered in June 2004. The plaintiff was not asked to discriminate in her evidence between pain in the low back, mid back and area of the cervical spine.

[24] In her evidence the plaintiff did complain of pain in her back in regions lower than the cervical spine. I accept her evidence of pain in these regions. She is not entitled to be compensated for it. She did not claim for it and has not satisfied her onus of proof that it relates to the neck injury.

[25] The insurer submitted that significant low and mid back pain were physical explanations for her alleged incapacities. The plaintiff did give evidence that standing, for instance leaning over to wash up for half an hour would cause pain in the middle of her back. I do not propose to include symptoms suffered in that area as part of the compensable loss.

[26] The insurer did not raise symptoms in the low and mid back in the defence as a cause of diminished capacity to earn. It was not explored with any expert witness. It was not adequately explored with the plaintiff. The insurer does not appear to expressly raise this in submissions as a cause of the plaintiff's alleged incapacity to work. It would be unfair to do so for the first time in submissions.

[27] The insurer identified in submissions a number of features which show that the plaintiff was unreliable either in her evidence or in her reports to medical practitioners. She told Dr Wallace that she had complained of neck pain at the Caboolture Hospital. That was incorrect. She gave evidence that she had complained of neck pain to Dr Spermon and to Dr Fernandez. Neither doctor recorded complaints about neck pain. The plaintiff told Dr Wallace, Ms Stevenson and CentreLink that she experienced neck pain when sitting in front of a computer screen at one particular work place and it was a reason she left that job. In evidence she said that she had not left that job because of neck pain but because the work was not available. If the plaintiff had been deliberately untruthful, it is more likely that she would have given evidence that she had experienced neck pain when sitting at the computer. The plaintiff complained to Dr Fraser of pain on light vertical compression of her cervical spine. The insurer's counsel submitted that this made her testimony implausible. Dr Fraser did not give evidence to that effect and Dr Wallace rejected the suggestion that the plaintiff's complaint made her implausible. I accept that the plaintiff has shown that she can be an unreliable historian. I reject the submission that she is not credit worthy and that her evidence of significant neck problems is implausible. I accept the evidence of Ms Stephenson that in June 2006 she observed that the plaintiff needed to move after 30 minutes of sitting to relieve neck pain and needed to move after 30 minutes standing to relieve neck pain.

[28] The plaintiff has made some improvements to her life which are relevant to her employability. She undertook a numeracy and literacy course. It was arranged through CentreLink and lasted for a few months. It also involved basic computer courses. She did a coffee shop and bar course. In 2008 she attended Alcoholics Anonymous on three occasions. She attributed her need to attend Alcoholics Anonymous to a time when she was in a bad relationship. She was suffering depression at the same time. The plaintiff is now six months pregnant, is in a new and satisfying relationship and has not consumed any alcohol during the course of her pregnancy. She gave evidence that the courses she has done have helped to give her more confidence. The plaintiff spoke confidently in her evidence, including during mildly aggressive cross-examination.

[29] The plaintiff is currently living with the father of her unborn child. He is employed full time as a concreter. When she wakes in the morning she often has a stiff neck. She asks her partner for massages. He massages her whole back at least once per week. I accept that this is partly attributable to pain in the area of and radiating from her neck. The need for the massage seems also to be partly attributable to pain unrelated to the cervical spine. The plaintiff's partner showed genuine frustration because the plaintiff complains so regularly of back pain. I find that the complaints are partly caused because of the pain from the cervical spine.

[30] The plaintiff obtained several short term jobs since the accident. In 2006 she obtained employment at Kilcoy Meatworks. She worked there for three days. She found the job difficult because of her back. However, she lost the employment because she lost her driver's licence for an offence related to drink driving. She complained that the work at Kilcoy was heavy and that she was pleased to leave it and did not think she could have done it for long. She omitted to say that problems relating to her neck were aggravated by the heavy work she described. That would be a conclusion consistent with the evidence of Dr Wallace and Ms Stephenson which I accept. She earned $307.20 at the Kilcoy Meatworks.

[31] She obtained work in five cafes between July and December of 2007 for a total of 142 hours. Despite that experience, and her improving confidence she gave evidence that she retains a preference for jobs which do not involve customer service because she finds she lacks confidence serving customers. Because of this she obtained a job at a nursery in February 2008. She found the work there was sometimes too heavy for her but the other employees helped her. She carried a box of Panadol with her and used analgesia regularly to deal with pain at work. She held that job for about four and a half months and enjoyed it despite neck pain. The plaintiff lost that work when she lost her licence in May 2008 because of another alcohol related driving offence. The plaintiff earned $6,834 at the nursery. She obtained a few days work at a hydroponics farm but lost the job when she took time off with flu. The plaintiff did not leave any employment because of neck or back related pain.

[32] The plaintiff created a resume. She delivered it to a number of places and recently. She obtained no further employment. She has not disclosed to any potential employer that she had a neck related injury. The plaintiff did not give evidence of any potential employment that she declined to apply for because of a neck related injury. I accept that heavy work at the meatworks was difficult for the plaintiff and partly because of her neck injury and that she was pleased to leave when her driver's licence was suspended. She did not give evidence to suggest that her failure to return to the meatworks or to apply for any other employment was due to incapacity or pain related to her neck.

[33] The provisions of the Civil Liability Act 2003 applicable to this case are set out and explained in Ballesteros v Chidlow [2005] QSC 280.

[34] The dispute between the orthopaedic specialists is more easily understood when recalling that on the two occasions when Dr Fraser saw the plaintiff, she had no restriction of neck movement and no muscle guarding. When seen by Dr Wallace, more than two years after the accident, the plaintiff had restricted movement and muscle guarding. I have accepted Dr Wallace's evidence that the condition was stable and stationary and would require ongoing care of simple analgesia, stretching exercises and local heat and was then creating nocturnal positional pain and I find that it still does. He opined that the cervical pain was aggravated by prolonged sitting and associated with occipital headaches. On the same day Ms Stephenson observed problems for the plaintiff's neck from prolonged sitting and standing. I accept Dr Wallace's opinion about the aggravation of pain. The interference with sleep is particularly disturbing for the plaintiff. She will endure these continuing symptoms from a relatively young age. I assume that the plaintiff has a normal life expectancy. Because of her vulnerable personality, the regular irritant of her neck pain will her cause her frustration. I do not expect that she will cope with it as well as the average person. I accept the evidence of Dr Wallace that there is a DRE 2 category impairment of the cervical spine in the range of 5 to 8%. It is the dominant injury.

[35] I reject the plaintiff's submission that headaches, insomnia and dizziness are to be treated as a separate injury. The headaches and insomnia are significant for the plaintiff. They are symptoms of the injury to the cervical spine.

[36] The injury to the cervical spine falls more appropriately within Item 88 as the plaintiff submits rather than 89 as the defendant submits. It has an ISV range of 5-10.

[37] The plaintiff submitted that there are multiple injuries which require me to assess a higher ISV increasing it by 25 per cent. I find that the only other relevant injury is the minor scar. I do not find that the level of adverse impact of the plaintiff's multiple injuries is so severe that the maximum dominant ISV is inadequate to reflect the level of impact.

[38] I allow an ISV of 10. Pursuant to s 62 of the Act that is an amount of $11,000.

[39] Between the accident and trial the plaintiff had a disadvantage on the open labour market due to her incapacity to do heavy work. I accept that there were a number of jobs which the plaintiff physically would have been unable to perform. The plaintiff bears the onus of proof that that impairment has caused her economic loss between June 2004 and the trial. The onus is not satisfied merely by proof of the impaired capacity to compete in the labour market. There is no evidence that the injury to the cervical spine caused the plaintiff to leave any of the jobs she obtained or to be rejected for any of the jobs for which she applied or to decline to apply for any available job. The plaintiff's counsel submitted that the plaintiff would have worked more than she did, but for the accident and would have had more opportunities open to her, but for the accident. There is no evidence that she would have worked more than she did but for the accident. I accept that the plaintiff would have had more opportunities open to her, but for the accident. However, the plaintiff gave no evidence of eliminating employment opportunities because of neck injuries.

[40] There was no submission made for the plaintiff that she should receive damages for past economic loss expressly on the basis of loss of a chance or by reference to principles in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 considered in this context in McDonald v FAI General Insurance Co Ltd [1995] QCA 436. It may have been implied in the plaintiff's submissions and is worthy of consideration. It seems to me that without evidence that the plaintiff lost employment or in seeking employment rejected specific work or general types of work because of her injury the plaintiff fails to satisfy an onus that she suffered loss.

[41] I reject the plaintiff's claim for past economic loss.

[42] The plaintiff's lack of education, history of depression, lack of confidence in dealing with customers, history of alcohol abuse and history of under employment are each matters which suggest that her future employment will be less than full employment. However, the plaintiff's confidence has improved, she has stopped abusing alcohol and she has maintained moderately heavy manual work in a nursery for four and a half months despite regular pain. She has taken the initiative to create a resume and to distribute it. Her partner's evidence is that when he returns after a day's work the plaintiff is regularly on the telephone about employment. For a person with the plaintiff's disadvantages in competing for work the difficulties she would have with heavy manual work, process work and with sedentary work will adversely affect her employability on the open labour market.

[43] The insurer submits that if I generally accept the evidence of the plaintiff and of Dr Wallace an award of $10,000-$20,000 is adequate having regard to the cautious approach urged in Colmark (Australia) Pty Ltd v Hall [1998] QCA 105. In that case it was observed that a cautious approach to the assessment of damages is appropriate where any injury of no great significance is alleged to have been seriously disabling. I note that the plaintiff in that case had maintained habits of drug taking and voluntary unemployment for much of the 8½ years between the accident and trial when he was about 40 years of age. He had worked only occasionally and intermittently for short periods in the 12 years until he was 32 years of age. The plaintiff's situation is different in that she is younger, has demonstrated a desire for employment and the discipline to put alcohol abuse behind her and to maintain nursery work that caused her pain for 4½ months. She has a potential working life ahead of her of about 40 years.

[44] An indication of the kind of net income available to an unskilled manual worker appears in the Cleaning Services Award 2010 and shows that a Level 1 Cleaning Services Employee should not earn less than a minimum weekly rate of $582.80 and that the annual award wage for such an employee based on a 52 week year is $30,305.60. The plaintiff submits that an appropriate global award should be based on a calculation 2½ years of full time work and seeks an assessment of $75,764.

[45] I accept that a global award is appropriate. I accept generally the approach taken in Cook v Bowen [2007] QDC 108 and Carroll v Coomber [2006] QDC 146 and assess future economic loss at $60,000.

[46] The plaintiff is entitled to nine per cent of the assessment for future economic loss being $5,400.

[47] There has been no direct evidence for the costs of special damages. There is evidence that the plaintiff has continuously required pain killers. The plaintiff submits that $1,250 is appropriate as a cautious global amount while submitting that painkillers for the future should be allowed at about $5.00 per month. A cautious global approach for the cost of painkillers to date is to award $300.00 inclusive of interest. That amounts to approximately $5.00 per month for five years.

[48] A finding of future medical or physiotherapeutic expenses is not consistent with the report of Dr Wallace. The plaintiff's need for regular massage from her partner is not shown to be attributable solely to the neck injury. If it were, the plaintiff may have satisfied an onus of proof that future physiotherapy treatment is warranted. There has been no evidence sufficient to satisfy that onus. There is no evidence that specialist pillows have been acquired because of neck pain. I accept the plaintiff's submission that an award for painkillers for the future is appropriate in the sum of $2,663.50.

[49] (a) Pain and suffering and loss of amenities of life $11,000.00

(d) Loss of superannuation benefits at 9 % $5,400.00

[50] Because of the agreement as to liability, damages are reduced to $47,618.10. There will be judgment for the plaintiff against the second defendant in the sum of $47,618.10. Unless another order is appropriate I will order that the second defendant pay the plaintiff's costs of and incidental to the action to be assessed.

[1] Uniform Civil Procedure Rules r 149(1)(c), 150(4)(a),(c) and (9) and r 166(4).

[2] Report of Leisa Roberts at exhibit 1, page 27.

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