_Tomlins v Sheikh_

District Court of Queensland|2005-06-16

[1] The plaintiff is a 30 year old woman who claims damages for personal injuries she sustained on 17 December 2002 (then aged 27 years old) while dining at a Brisbane restaurant. The claim is brought against the occupier of the restaurant who conducted the business at the time.

[2] The plaintiff states that she was in a party of at least eleven (11) people dining at the restaurant all of whom were seated at what has been described as "the long table" depicted in the photograph tendered as Exhibit 16A.

[3] This photograph shows the interior of the restaurant with three (3) lines of tables of various sizes, one line being against each side wall and the middle line containing the long table at which the plaintiff and her party were sitting.

[4] The photograph also shows six (6) chairs on either side of the long table and one (1) chair in the middle foreground at the table end. There are also various dimensions noted of the tables within the restaurant and also the space between the lines of tables which would constitute the two (2) aisles separating the three (3) lines of tables.

[5] The plaintiff's evidence is that she was sitting in the fourth chair on the left from the end of the table nearest to the photographer and where the defendant's right index finger is pointing as depicted in Exhibit 16A.[1] This evidence is confirmed by that of the witness Michael O'Loughlin.[2]

[6] The plaintiff further says that the table immediately behind where she was sitting and which is depicted in Exhibit 16A was also occupied by three (3) diners, one of whom was seated in a chair at the end of that table nearest to the plaintiff ie. in the aisle between the two (2) lines of tables. She states she is sure of this as she had to ask this diner to move when she (the plaintiff) wished to visit the bathroom.[3]

[7] Exhibits 16B and 16C are also of the interior of the restaurant and depict the defendant's employee waitress Tegan Kate Dowling ("Dowling") holding a tray upon which there are a number of dinner plates (Exhibit 16B) and a close-up of a tray upon which there are ten (10) dinner plates (Exhibit 16C). These are the plates upon which the food was served on the evening of 17 December 2002.

[8] There is evidence of the weight of each of these plates being 0.55kg and the weight of the tray and rubber mat being 0.292kg.[4]

[9] The plaintiff describes her injury as occurring when the party had finished the main course and she was talking to her husband's employer who was seated on the opposite side of the table and she was leaning forward on her elbows across the table.[5] The plaintiff recalls seeing Dowling pick up plates from the end of the table to the plaintiff's right, and then leaning back on her chair "...when I had a big weight dropped on my head which I didn't realise what it was".[6]

[10] The plaintiff says she did not know what happened and when she turned around "...I saw some broken plates on the ground and I figured out she had actually dropped the tray and the plates on my head".[7]

[11] She identified that the impact to her head was on the "top back"[8] and that it felt "...like if your head would go down on your shoulder and back up but at the same time it's kind of pushed forward".[9]

[12] The witness O'Loughlin was with the party and was seated on the right side of the table as depicted in Exhibit 16A "... third chair from the photographer"[10] ie., he was sitting opposite the plaintiff but one chair to her right.

[13] He describes the incident as occurring when the main course had finished and "Dowling was collecting plates"[11] which she had started to collect "...at the far end of the table on the right-hand side".[12]

[14] O'Loughlin further says that Dowling had the tray on the palm of her left hand and:

"... was collecting the plates between ... the third chair and the fourth chair where Karine (plaintiff) was seated...reaching between the people to collect the plates. Karine had reacted to a joke how most people react, when they throw their head back, and her head had bumped into the arm that was carrying the tray. The tray was dislodged, fell forward and on top of Karine's head. Her head was pushed down forward ... a couple of the plates fell off the tray and on to the floor".[13]

[15] O'Loughlin further stated that "before Karine moved backwards the tray was positioned above her head slightly to the rear and approximately 3 to 4 inches ... from the back of her head".[14]

[16] According to O'Loughlin, Dowling"... had collected all of the plates from the right-hand side".[15] He further stated that when the plaintiff's head contacted with Dowling's arm "the whole tray dropped forward and landed on her head".[16]

(a) That Dowling would have had no idea that the plaintiff "... was about to throw her head back laughing reacting to a joke"[17];

(b) That Dowling could have "quite probably" returned to the kitchen "between commencing to clear the plates from the table and this incident"[18]; and

(c) That at the moment the plaintiff had "...reared her head back and hit the arm or tray..." Dowling "...had completed collecting the plates from in front of Karine and placed them on the tray".[19]

[18] Dowling gave evidence and describes the system of clearing the table and stated that the "maximum" number of plates that she cleared at any one time "...would be five".[20]

[19] On the night in question she stated she commenced clearing the long table from the top right as one looks at Exhibit 16A "and then took one lot back..."[21] ie. to the kitchen and then resumed collecting the plates from the end of the table nearest to the photographer in Exhibit 16A.

[20] She recalled where the plaintiff was sitting which coincided with all other evidence ie. the fourth chair from the bottom left of the table in Exhibit 16A and that she "... was just regularly going through how we clear tables ... I don't recall whether I was actually collecting her plate or the person beside her ... but I do recall leaning forward to get the plate off the table ... the whole group was laughing ... she was laughing at the time ... but I remember picking the plate up ... I was holding the tray and as I was getting the plates from off the table she (the plaintiff) laughed came backwards with her head and hit my tray which I tried to kind of correct but it tipped. The plates fell down on to her on to the floor".[22] Dowling said she "...had no warning ... that the lady was going to throw her head back..." as she described.[23] Dowling stated that she would have had five plates on the tray "...at the most..."[24] and to her recollection "they all fell to the floor".[25]

(a) That she would have also had some items of cutlery on the tray but that "...it wasn't 10"[26];

(b) That she may have been collecting "a sixth plate"[27];

(c) That the plaintiff was "leaning forward listening to the story..."[28] which was qualified to "...wasn't leaning very far forward"[29] and that "the action came when she (the plaintiff) laughed ... that was when she actually moved further back ... and that's when it (her head) hit the side of the tray"[30].

[22] Dowling further stated in cross-examination that the part of the plaintiff's head which struck the edge of the tray was "...at the back of your head just above the level of your ear".[31] She qualified this statement in the following passage of cross-examination:

"Okay, so it's correct to say that as you lean forward to get the plate-----?--Yes.

----you were holding the tray at about her head height, correct?- Yes.

Below the level of top of her head, correct?--Probably just at the top of her head level."[32]

[23] The following passage of cross-examination is also of significance:

" ...But you don't - did you ever consider the possibility, as you leaned forward with your right hand holding a tray in your left hand----?--Yes.

--- with the tray at about her head height-----?- Yes.

--- that if she moved backwards in her seat that her head might connect with the tray? Did you ever consider that possibility?--Well, no, I didn't." [33]

[24] Dowling also agreed that however many plates were on the tray "... the weight of both the tray and plates and whatever else was on top of the tray including cutlery ... collided with the top ... that is the crown ..." of the plaintiff's head.[34]

[25] The witness Akhtar Sheikh who is the defendant's son gave evidence but did not take the matter much further other than to say that it was his instructions to waitresses to carry "...no more than 5 or 6" plates at any one time when they are clearing tables and that on this evening Dowling had returned to the kitchen with some plates before going back out to continue to clear the table before the incident the subject of the claim occurred.

[26] Plaintiff's counsel's basic submission essentially was that Dowling should have reasonably foreseen the plaintiff's reaction in the course of a conversation with a fellow diner, of moving backwards or even suddenly throwing her head back from a leaning forward position when she (Dowling) was in the process of removing plates from the table in front of the plaintiff. Therefore she should have taken care not to have the tray, upon which there were plates already removed from the table, in such close proximity to the plaintiff's head that there may be contact between the plaintiff and the tray with the likelihood of the tray and/or plates falling on someone. Logically the more plates on the tray the more careful a waitress should be in such circumstances as the potential consequences may be greater.

[27] Plaintiff's counsel further submitted that Dowling was negligent in a number of ways including:

(i) Her failure to follow the protocol of returning to the kitchen after collecting no more than five (5) plates from the table and placing them on the tray;

(ii) Her failure to warn the plaintiff of her presence behind her;

(iii) Her failure to hold the tray sufficiently high so that in the event that the plaintiff moved backwards she would have avoided contact.[35]

[28] Defence counsel submitted that the incident was "...purely and simply an accident in the true sense of the word ... it is not on the evidence an act or an injury occasioned by a tortious act or omission".[36]

[29] Essentially it was submitted that there had been no breach of a duty of care either by the defendant himself or by the defendant vicariously through the actions or omissions of his employee waitress Dowling.

[30] Finally counsel submitted that if the court made a finding that there was a breach of a duty of care by the defendant then the court should also make a "significant" finding of contributory negligence against the plaintiff within the terms pleaded in the defence.

[31] The plaintiff's case is pleaded in contract and negligence alleging breaches by the defendant in his own right as the occupier of the premises and vicariously by the acts or omissions of his employee Dowling who was acting in the course of her employment at the time as a waitress at the premises.

[32] The particulars of the alleged breach(es) by the defendant are those of the alleged negligence of the defendant as pleaded in paragraph 4 of the plaintiff's Statement of Claim and the case was conducted on this basis. In any event from a practical point of view the particulars of any alleged breach of contract and/or breach of a duty of care by the defendant would be identical.

[33] This case is founded on the fundamental principles of the duty of care owed by one person to another aptly described by Lord Atkins in Donoghue v Stevenson (1932) AC 562 at 580:

"The rule that you are to love your neighbour becomes in law that you must not injure your neighbour and the lawyer's question, 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be - persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question".

[34] The cases in which this principle has been subsequently restated in various ways are legionary but the observations of Mason J as he then was in The Council of the Shire of Wyong v Shirt & Ors (1980) 46 CLR 40 at 47-48 [referred to also by Brennan J in Jaensch v Coffey (1983)] are particularly apposite viz.,

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors".

[35] The High Court further discussed the "foreseeability" test in Nagle v Rottnest Island Authority (1993) 177 CLR and cited with approval what was said in Shirt's case that: "...a risk may constitute a foreseeable risk even though it is unlikely to occur. It is enough that the risk is not far-fetched or fanciful".

[36] The above common law principles are now subject to the Civil Liability Act 2003 and relevantly Chapter 2 Part 1 Divisions 1 and 2 thereof and I have also had regard to those provisions in my consideration of this proceeding although they were not directly adverted to by counsel in their submissions.

[37] The principle of vicarious liability of the defendant for the acts or omissions of Dowling apply in this case as it has been admitted that Dowling was acting in the course of her employment when the incident giving rise to this claim occurred and therefore all relevant criteria to satisfy this doctrine have been established.[37]

[38] Applying all of the above relevant principles to the instant facts I make the following findings:

(a) The plaintiff was a lawful entrant to the defendant's restaurant premises on 17 December 2002.

(b) The defendant owed the plaintiff a common law duty of care not to injure her while she was on his premises.

(c) The defendant is vicariously liable for the acts or omissions of Dowling while acting in the course of her employment for the defendant and it is admitted that Dowling was so acting when the incident occurred.

(d) At or about 9:30pm on 17 December 2002 the plaintiff was sitting at a "long" table depicted in Exhibit 16A in the defendant's restaurant in the fourth chair from the end nearest to the photographer on the left side and was engaged in conversation with her husband's employer (Mr Bradbury) who was seated opposite her and slightly to her right.

(e) Dowling was in the process of "clearing" dinner plates and some cutlery from the table by placing them on a tray which she held on the palm of her left hand and had cleared a number of plates from the table on the right side as depicted in Exhibit 16A and returned to the kitchen with them.

(f) Dowling then returned to the table with her tray to continue the clearing process in a clockwise direction as one looks at Exhibit 16A and by the time she had reached the plaintiff she had collected at least five (5) dinner plates which she had placed on the tray and was in the process of or had just completed placing the plaintiff's dinner plate on the tray when the plaintiff suddenly moved back on her chair and struck either Dowling's arm or the edge of the tray with her head causing Dowling to lose control of the tray and contents which then fell onto the plaintiff resulting in the plaintiff suffering an injury to her neck.

(g) The weight of the tray and contents was at least 3.042 kg and possibly 3.592 kg excluding the weight of any cutlery which was on the tray.

(h) The force of the impact caused the plaintiff's head to be pushed down and forward resulting in the plaintiff sustaining a neck injury.

[39] I further find that the defendant by itself and/or vicariously breached its duty of care which it owed to the plaintiff by the acts or omissions of its employee Dowling in the following manner:

(a) Failing to instruct, train and/or supervise staff with respect to the correct procedure of clearing tables in cramped conditions.

(b) Failing to provide staff with a trolley or other similar device upon which crockery and/or cutlery may be placed when in the process of clearing tables.

(c) Failing to instruct staff to warn diners that the clearing of the table is about to take place particularly where there is a party of at least eleven (11) people dining at the one table.

(d) Failing to instruct employees as to a safe and secure method of holding a tray when in the process of clearing tables of crockery and/or cutlery so as to avoid losing control thereof in the event of contact being made with it.

(e) Through the employee Dowling by her positioning herself with a tray containing at least five (5) dinner plates and other items of cutlery weighing at least 3.042 kg too close to the head of a diner in circumstances where it was reasonably foreseeable that there may be contact between the tray and the diner's head.

(f) Through the employee Dowling by her failure to warn the plaintiff of her presence behind the plaintiff while in the process of collecting her dinner plate.

(g) Through the employee Dowling by her not holding the tray in a safe and secure manner so as to prevent her from losing control of the tray with crockery and cutlery upon it in circumstances where it is reasonably foreseeable that it may fall upon a diner if contact is made with the tray.

[40] I therefore find that the plaintiff was injured as a result of the negligence of the defendant and that she is entitled to be compensated for such injury loss and damage as she has sustained.

[41] The defendant has pleaded and submitted that if there was a finding of negligence against him then the court should also make a finding of contributory negligence against the plaintiff in the terms pleaded in paragraph 8 of the Amended Defence.

[42] While the plaintiff's action in suddenly moving her head and upper body backwards was an action of which Dowling had no prior warning, the plaintiff's evidence which I accept, is that she was unaware of the presence of Dowling immediately behind her, but rather that she recalls seeing Dowling "...picking up plates but from the other end"[38]. The plaintiff said further: "...I was just talking and I remember seeing her there but I didn't pay much attention".[39]

[43] In the circumstances I am not persuaded that the defendant has discharged his onus of establishing that the plaintiff's actions on the evening in question amounted to a failure on her part to take care for her own safety as distinct from mere inattention or inadvertence in the normal course of engaging in conversation at the dinner table. I therefore find that the plaintiff did not contribute to such injury she suffered on the evening in question.

[44] The assessment of damages for personal injury in a matter such as this (occurring before 9 April 2003) as distinct from personal injury as defined under the Motor Accident Insurance Act 1994 and the Workcover Queensland Act 1996 is governed by the Personal Injuries Proceedings Act 2002 ("PIPA") as amended and the Civil Liability Act 2003 ("CLA") as amended.[40]

[45] In particular s 61 of CLA (as amended by the Professional Standards Act 2004) prescribes the manner in which a court must assess general damages in relation to personal injury arising after 1 December 2002 and those general damages must be assigned an "injury scale value" ("ISV") being a numerical value from 0 to 100 and that:

"(c) in assessing the injury scale value, the court must--

(i) assess the injury scale value under any rules

provided under a regulation; and

(ii) have regard to the injury scale values given to

similar injuries in previous proceedings."[41]

[46] Section 6 of the Civil Liability Regulations 2003 ("CLRegs")[42] provides for the "Ranges of injury scale values" which are contained in Schedules 4 and 6 to the CLRegs.

[47] Schedule 4 consists of 162 items or categories of injury to which are attributed an ISV from which a court calculates the assessment of general damages in accordance with that value set out in s 62 of CLA. Schedule 6 deals with the "Psychiatric Impairment Rating Scale" (PIRS) which is not relevant to this proceeding.

[48] Section 6 of CLRegs also provides for the manner in which an injury not mentioned in Schedule 4 is to be assessed as well as the manner in which special categories of injuries or "multiple injuries" shall be assessed which again is not relevant for present purposes.[43]

[49] For present purposes ss 8 to 12 and 14 of the CLRegs[44] are also relevant for the court's consideration in relation to the assessment of an appropriate ISV.

[50] The court's first task in reaching an assessment of general damages is to identify the particular item(s) within the range of ISV to which the plaintiff's injury is applicable.

[51] The plaintiff's evidence of her injuries, treatment and their effect on her life is summarised as follows:

(a) She said she felt a big electric shock going down her neck immediately after the incident and that it felt really painful going all the way down (her neck) and down to the shoulder blade. The plaintiff went home from the restaurant early; took some pain killers and tried to sleep it off;

(b) The next day she went to work, and she found that sitting there and typing really put a strain on her neck and she was still sore. At lunch time she went and saw a local GP who prescribed anti-inflammatories and told her that if she was still sore in a few days to come back and see him and have an x-ray. She went back to the doctor a few days later and had x-rays and physiotherapy treatment was prescribed to her. She had six treatments of physiotherapy between December 2002 and January 2003;

(c) Her symptoms continued after she had had the physiotherapy treatment and in fact got worse because she began having headaches at work virtually every day in the afternoon;

(d) Currently she gets really sore by the end of each day (at work). She does stretches every hour but otherwise is seated and not moving about much. She takes anti-inflammatories and Panadol to alleviate her symptoms. She takes a packet a month of each of these drugs. She said that she needs to take these drugs to get her through the end of the day. Then, when she gets home she can rest and change positions. She takes Nurofen for the pain in her neck and Panadol for the headaches;

(e) She didn't take up the option of ten weekend overtime opportunities between July and December 2004 because her neck was sore and she could not work the extra day. She and her husband were trying to save money to buy a house so she needed the extra money;

(f) At the beginning of the working week, although she has headaches, the pain in her neck is bearable up to the time that she gets to the end of the week. Around Thursday, she is really struggling and she would rather be somewhere else. She works flexi time and standard hours of 7.25 hours per day. She tries to take half a day off per fortnight. She saves it for when she gets really sore. Her boss is aware of her condition and is understanding. The flexi time helps her with coping with her symptoms;

(g) The plaintiff has previously worked in a variety of occupations including that of being a housekeeper. That is a job that she could not do presently. She has needed assistance from her husband with her own housekeeping. Tasks such as vacuuming, hanging the washing, mopping, heavier tasks together with gardening and mowing the lawn she tries to do. These are all things she did before the accident. She can do these tasks but afterwards she feels it in her neck. She has also attempted modalities such as spacing the loads of washing as much as she can. She finds that holding her arms high for quite a period causes pain in her neck. She stated that her husband has replaced these duties to the extent of between 1 and 11/2 hours per week since the accident.[45]

[52] The medical evidence called at trial was given by the following practitioners:

[53] A summary of the evidence from each of the respective witnesses is as follows:

1. Dr White - date of examination 2 December 2003 (12 months post-accident):

• Plaintiff felt "a big electric shock" going down her neck towards the top of her left shoulder --- followed by persistent pain --- the following day she described her neck as worse while at work --- she attended a general practitioner during her lunch hour --- analgesics were prescribed --- a few days later she was obliged to re-attend and was sent for x-rays --- followed by physiotherapy --- she had about 3 months treatment 2 or 3 times a week --- her condition improved as a consequence --- she also had deep massage --- her present employment has resulted in a significant increase in discomfort to the point where she was obliged to take prescription analgesics --- her neck pain is particularly worsened by the computer duties she undertakes, driving too far, gardening and similar activities --- she wakes every morning with a stiff/sore neck although she does sleep through the night --- on occasions she experiences pain on the lateral aspect of the right upper limb as far as her elbow --- she usually had a headache by late in the afternoon of every working day.

• She denied any prior related problems --- on examination of her cervical spine there was no spasm --- she did not appear to be tender --- with forward flexion she could place the chin to within 4 cm of the chest wall --- rotation to the left was reduced by approximately one-third --- extension was reduced by about one-quarter --- all other movements appeared only mildly reduced and associated with complaints of pain --- power, sensation and reflexes of the upper limbs were symmetrical.

• An MRI scan of her cervical spine performed on 8/12/03 demonstrated no inter-vertebral disc disruption --- an osteophyte described as prominent and longstanding was reported as present on the lateral aspect of the right side of the third vertebra associated with some distortion of the thecal sac without nerve-root effect.

• Dr White expressed an opinion in the following manner:

"...in the presence of pre-existing degenerative change, as is said to be the situation in this lady's cervical spine, progressive deterioration throughout life can be anticipated. It may, however, take fifteen to twenty years to further impair function."[46]

2. Dr Todman - date of examination 20 January 2004 (13 months post-accident):

"There was persistent neck pain. The pain is predominantly on the left side and extends from the left sub-occipital region to the left shoulder girdle. There is also pain experienced in the left interscapular region.

The neck pain is present constantly at rest but is aggravated by neck movements and postures. Head and neck movements directly to the left aggravate her pain.

Pain is predominant at night and she has had disturbed sleep.

Headaches have been an accompanying feature. These are mainly in the frontal region of constant steady quality. They occur on a daily basis particularly at the end of a day.

Prior to the accident she was not a regular headache or migraine sufferer. There was no previous history of spinal injuries.

For treatment she uses regular heat and massage on her neck. She takes analgesics for pain.

Mrs Tomlins lives with her husband at Carina. She has had pain with various domestic tasks such as gardening, vacuuming or hanging clothes on the line. She also has pain with driving particularly turning her head to the left or reversing."[47]

• She has had a lot of pain and headaches at work and has to move around and stretch during the working day.

"Examination showed restricted cervical movements by approximately 30deg. and 40deg. to the left. There was tenderness and muscle spasm in left-sided paravertebral muscles and over the left trapezius muscle. Strength, reflexes and sensation were normal in the limbs. Cranial nerve testing was normal."[48]

• Dr Todman's conclusion was expressed in the following terms:

"... the main injury represents the cervical spine injury with no serious head or brain injury occurring as a consequence.

The structures damaged in the cervical spine include muscles and ligaments of the spine but additionally it is likely she has sustained facet joint and possible disc injury to account for ongoing injuries.

Mrs Tomlins has had appropriate treatment but he response bas been only partial. She still has daily neck pain and headaches which restrict her in all aspects of her life including her employment, activities of daily living and recreation.

For further management, I would recommend a maintenance physiotherapy programme with as fortnightly treatment for a further six months. She would also benefit from muscle strengthening exercises as well as regular heat and massage. Consideration should also be given to cervical facet joint blocks on the left of average cost $600 to $1,000 and possibly radio frequency neurotomy of average cost $1,000

The current symptoms are stabilised and are likely to represent a permanent state of affairs. The literature on cervical injuries suggests that symptoms present after 12 months are likely to be permanent. I would estimate a 10% whole person impairment based on AMA Guidelines, 5th Edition, Cervical Impairment. This represents a moderate cervical injury based on the chronic daily pain, restriction in cervical spine movements with muscle spasm and associated pot-traumatic headaches. The range of percentages for this type of injury would be from five percent to 10% of whole person but in my opinion Mrs Tomlins rates at the upper end of this range based on the level of symptomatology and physical findings outlined above.

The symptoms will continue to affect Mrs Tomlins in the work environment. She requires good ergonomics with the ability to move around and stretch during the working day. The symptoms will restrict her ability to work any extra hours of overtime or for job advancement. In a home environment, she requires assistance with heavier domestic tasks which I would estimate at three hours per week."[49]

• Dr Todman's supplementary report dated 16 March 2004 after an examination of the MRI scan report confirmed the "osteophyte in the superior aspect of the C3 vertebra" and that it "...represents an age-related change". It did not change his whole person impairment assessment.

3. Dr Boys - date of examination 17 February 2004 (14 months post-accident):

• Dr Boys describes the plaintiff's complaints as follows: "...this lady now takes occasional simple analgesia --- relates intermittent frontal headaches --- relates discomfort around the basal neck and left trapezial musculature --- this type of discomfort is present to some degree on most days --- she states that she experiences occasional discomfort extending to the left scapular --- states that her symptoms are always left side --- that when she wakes up her neck is somewhat stiff --- does relate some postural soreness in the latter part of the working day --- relates no arm pain although she had in the past experienced some discomfort in the left upper arm with activities such as hanging washing --- has never experienced radical pain paraesthesia numbness or weakness --- relates discomfort now with extension and rotation of the neck to the left side -- states that the neck is not flexible --- does normal household duties with her husband assisting at times --- does describes a degree of discomfort with activities such as hanging out washing --- is able to drive a motor vehicle --- relates some pain with heavier gardening activities --- attends a gymnasium 3 days per week...".

"...suffered a strain of the basi (sic) cervical musculature and left trapezius muscle belly in the incident in the restaurant on 17/12/2002. This type of injury would be consistent with the stated cause.

This lady's complaints at this time reflect simple postural muscle strain. Utilising the objective criteria of the American Medical Association Guidelines (5th Edition) there is no quantifiable impairment of bodily function evident referable to the neck or shoulder region (diagnosis related estimate cervical category I). I note also your question directed to the factors expressed in schedule 4S Part 6 of the Regulations. I have examined Part 6 (orthopaedic injuries) and I believe this lady has suffered a minor cervical spine injury (89).

This lady requires no ongoing medical care. She would be advised, in general terms, to perform a regular home program of stretching and conditioning of the trapezial musculature. A program such as swimming might be routinely advised in this context.

No deterioration of function would be anticipated as a result of the injuries sustained. This lady will suffer no future domestic or work incapacity but may experience, to some degree, a difficulty of postural neck strain after periods of protracted positioning of the neck. Symptoms in this regard would be assisted by the ability to change posture in the course of employment and by the exercises previously described." [50]

4. Dr Burke - date of examination 21 May 2004 (17 months post-accident):

• Dr Burke reported the plaintiff's "current status" in the following terms:

"Her major problem now is stiffness and soreness in the left side of her neck. She states that it is relatively constant and with her all the time. She states that the soreness tends to be worse when she arises and tends to improve throughout the day and then towards the end of the day worsens again. It can be improved by taking Mobic. She has some difficulty with turning her head and also deviating her head to one side.

Secondly she has frontal headaches that occur on a regular basis. She states that they can occur on a daily basis and last all day. She said that they have been quite severe in the last week and have been lasting day in and day out for 3 days. They can be resistant to any analgesic treatment. Paracetamol is not particularly effective in treating them.

Walking is not a major problem. Standing is not a major problem. Sitting for long periods of time can cause problems in her neck and shoulders. Lifting and carrying are not major problems unless the articles are heavy. She does not have any numbness, pins and needles or weakness." [51]

• Dr Burke further reported that with respect to the plaintiff's "current activities":

"There are no major restrictions in activities of daily living. She is able to drive, however turning her head and reversing can cause some problems in the left side of her neck. Cooking is not a major problem.

She can vacuum, sweep and mop although she can experience symptoms associated with these after approximately 1/2 hour and she states that her husband tends to do a lot of the vacuuming. She can wash and hang out clothes, but when looking up to peg clothes on the line can cause some pain. Ironing is not a major problem. Shopping is not a major problem unless she has some very heavy shopping bags and she will then take steps to minimise this problem. Gardening, especially digging, planting and weeding can cause some pain in her neck. She does not do any lawn mowing.

In her spare time she tends to watch movies, DVDs, TV. She reads about 3 books per week. She has a PC at home and has access to the Internet. She tends to play some PC games which mainly strategy games.

Exercise is mainly attending the gym 3 times a week where she mainly does cardio work, some cycling, treadmill and leg weights. She tends to avoid upper bodywork because it can exacerbate her symptoms."[52]

• Dr Burke's opinion expressed on page 5 of his report is in the following terms:

"The diagnosis is probable soft tissue injury of the cervical spine consistent with a musculoligamentous injury. The level of impairment is not marked. Using the 5th Edition of the AMA Guides she would be assessed as DRE Cervical 1 which accords 0% impairment. The level of severity that she describes is somewhat excessive of the underlying impairment, however she has continued to work since the accident in an unrestricted capacity. She continues to work as a data process operator.

With respect to her work, she has symptoms of stiffness, soreness and headache which can be exacerbated by prolonged sitting particularly when she adopts static postures for long periods of time, however the impact of the symptoms which she has described, has not been marked.

She has been able to continue to work 35 hours a week and she has not had to take any significant amount of sick leave because of her symptoms. The level of underlying impairment in her cervical spine is not marked. Hence one would expect some improvement in her symptoms and disability with time. In my opinion she remains fit to work on a full-time basis without any specific restrictions. She would be advised when she is at work to take regular rest breaks and to request the department's Health and Safety Environment Advisor to perform an ergonomic assessment of her work station to ensure that it is set up in an appropriate manner.

She has a past history of depression and there is good evidence that existing psychological difficulties can predispose to chronicity of neck symptoms associated with incidents along the lines of that which she describes.

My overall impression today is that she is quite well adjusted, quite motivated to continue working and quite content to have secured a full-time permanent position. In my opinion the overall prognosis is reasonable, however one would expect continuing symptoms and the potential for these symptoms to translate into development (sic) into significant disability should improve with time." [53]

5. Mr Hoey - date of examination 21 May 2004 (17 months post-accident):

"Ms Tomlins tells me that she has become less independent since the accident. She continues to have difficulties with forceful and repetitive tasks, or those requiring static postures for the head and neck. She tells me that her husband completes many tasks around the home now. Tasks with which she continues to have difficulties include mowing the lawn, gardening and weeding, hanging the washing on the line, vacuuming...

Ms Tomlins reports that she is really stiff and sore when she wakes up, especially in the neck region. She says that after working for a period that the pain intensifies and runs down to her left shoulder blade and left side. She says that it is like a pulling or someone squeezing her muscle. She says that on occasion(s) she suffers from cramps as well as headaches. Things that make her worse are working, reversing her car, gardening, some gym exercises, waking up in the morning or sitting up for long periods of time. Things that relieve her pain include massage, pain killers, rest, stretches and inactivity...

... upon return to work she tells me that she had ongoing difficulties with:

• Sitting for long periods of time;

• Holding her arms outright to use a keyboard;

• Staid postures of the head and neck - while looking at a computer monitor;

• She apparently suffers from headaches on a daily basis."[54]

[54] For the reasons mentioned previously a court must have regard to Schedule 3 as well as Schedule 4 in reaching an assessment of ISV applicable to the plaintiff's injury and its sequelae; in particular ss 9, 10, 11 and 12 of Schedule 3 Part 2 Division 2 and its correlation to Schedule 4.

[55] In my opinion, the appropriate category of injury which most accurately represents the plaintiff's injury, clinical findings, diagnosis and permanent impairment is Item 88 of Schedule 4 but at the lower end of the range applicable and I assess the plaintiff's ISV in this matter at 6 pursuant to s 61(1)(c) of CLA.

[56] Pursuant to s 62 of CLA an ISV of 6 calculates to a general damages assessment of $6,200.

[57] Although s 60(1) of CLA provides that a court cannot order the payment of interest on awards of general damages, that section does not apply to this claim as the section applies only in relation to a breach of duty occurring on or after the date of assent of CLA which was 9 April 2003 whereas this incident occurred on 17 December 2002. I therefore allow interest on general damages at 2% on one-half of the general damages award that is $3,100 for 2.5 years which amounts to the sum of $155.00.

[58] The plaintiff's claim under this heading is for the lost overtime available to her between June and November 2004 which was offered to employees on 23 occasions.[55]

[59] The evidence is that the plaintiff worked on 13 of those occasions. The evidence of the plaintiff's employer was that it was not compulsory for staff to accept any offer of overtime and that it was "very much optional".[56]

[60] I accept that the plaintiff would have availed herself of more overtime had it not been for the effects of her injury but I am of the opinion that some discount should be made for contingencies and I would reduce the additional ten (10) days offered but not accepted by the plaintiff to eight (8) days to make allowance for these contingencies and allow the plaintiff a loss of $1,295.12 ($161.89 x 8). The plaintiff is also entitled to interest on this sum at the rate of 2.8% for say eight (8) months which represents a sum of $23.40 (s 55 of PIPA).

[61] I assess the plaintiff's past economic loss and interest in the sum of $1318.52.

[62] Damages for loss of superannuation entitlements are now governed by s 56 of CLA (minimum percentage required by law) but as in the case of interest on general damages, this section applies to claims arising on or after 9 April 2003 which is not the case here.

[63] Although the superannuation guarantee rate is 9% the plaintiff has given evidence that her superannuation component is 12.5% of her salary based upon the figures set out in her pay slip at page 49 of Exhibit 12. This shows an employer contribution of $146.40. On my calculation this represents a slightly higher percentage of her salary but as there is very little discrepancy, I shall allow the past loss of superannuation in the sum of $169.40 which represents 12.5% of $1,295.12.

[64] This component of damage is governed by s 55 of CLA which relevantly provides:

"55 When earnings can not be precisely calculated

(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person's age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.

(4) The limitation mentioned in section 54(2) applies to an award of damages under this section."

[65] The plaintiff's evidence in respect of her capacity to work and difficulties at work because of her injury are set out in paragraph [51] hereof and this topic has also been referred to in the evidence of all medical practitioners as well as the occupational therapist.

[66] I find that the continuing symptoms she says she experiences will also affect her capacity to undertake specific overtime if it is offered to her on occasions in the future as previously referred.

[67] In my opinion the plaintiff's capacity to work in full-time employment has not been diminished save for some symptoms of stiffness, soreness and headaches which she may experience from time to time and which are aggravated by prolonged sitting and adopting static postures which are part and parcel of her position as an administrative officer within the Registrar-General's department of the state public service.

[68] Despite her experiencing these symptoms from time to time they are not sufficient to preclude her from working extra time on a number of days of her normal work fortnight to enable her to take advantage of "flexi-time" at the end of that work period whereby she is able to take leave for the aggregate of the number of additional hours she may have worked during the course of any one fortnight usually on a particular day at the end of that fortnight.

[69] Pursuant to s 55 of CLA the court may only award damages under this heading if it is satisfied that the claimant will suffer loss having regard to various criteria set out in s 55(2) of CLA and under s 55(3) of CLA "...the court must state the assumptions on which the award is based and the methodology it used to arrive at the award".

[70] I find that the plaintiff will suffer a loss of earnings in the future because of the effects of her injury, mainly on the basis of her inability to accept overtime if it is offered to her because of the effects of her injuries, although additionally it is reasonable to expect that she may have to take occasional leave to rest and relieve her persisting symptoms and as such she is entitled to an award of damages on a "global" basis under this heading. I assess those damages in the sum of $25,000.

[71] Pursuant to s 55(3) of CLA the "assumptions" upon which I assess this sum are as follows:

(a) The plaintiff is a young woman of 30 years of age with many years of working life ahead of her. The evidence is that she has suffered and continues to suffer from various symptoms as a result of the injury she sustained in this incident which are exacerbated by her work environment as an administrative officer. As a result it is reasonable to expect that from time to time she will require to absent herself from work to recover from those symptoms which are directly attributable to the injury in question even though she may not necessarily be asymptomatic from already diagnosed minor degenerative changes within the cervical spine at the C3 level (see Magnetic Residence Image Studies 8/12/2003).

(b) I have also taken into account the fact that from time to time she may not be able to avail herself of overtime on every occasion that it may be offered to her because of the effects of her injury although the evidence is that this overtime is not offered regularly throughout the year but rather at such times as the work load demands. I have also borne in mind in arriving at this figure that there may be other natural reasons for her not working additional hours because of family commitments and the like which would necessarily impact upon her acceptance of overtime work or may cause her to work only in a part-time capacity for certain periods of her working life.

(c) If she was thrust on to the open labour market the symptoms attributable to the injury in question may impact upon the availability of work for her which would therefore make her more vulnerable on the open labour market in securing employment than she might otherwise have been.

[72] As was pointed out in counsel's submissions on this topic and referred to at paragraph [62] above s 56 of CLA was not assented to until 9 April 2003 (4 months post-accident) so that any calculation of future loss of superannuation should not necessarily be restricted to that which is applicable under the superannuation guarantee charge of 9% and I am therefore prepared to accept the plaintiff's submissions on this topic that adopting a figure of 10.75% being the average between the public service superannuation rate of 12.5% and the guarantee charge rate of 9% is reasonable and the figure arrived at on this calculation is $2687.50 which I allow.

[73] Special damages are agreed in the sum of $943.25 and I allow interest on the sum of $868.80 ($943.25 less the HIC charge of $74.45) at the rate of 2.8% over 2.5 years amounting to the sum of $60.80.

[74] The only evidence adduced on behalf of the plaintiff under this heading is the report dated 20 January 2004 of Dr Todman (Exhibit 9) where he says at page 4:

"For further management, I would recommend a maintenance physiotherapy programme with as fortnightly treatment for a further six months. She would also benefit from muscle strengthening exercises as well as regular heat and massage. Consideration should also be given to cervical facet joint blocks on the left of average cost $600 to $1,000 and possibly radio frequency neurotomy of average cost $1,000."

[75] Evidence adduced on behalf of the defendant on this topic is contained in the medical report dated 17 February 2004 from Dr Boys (Exhibit 13) where he says:

"This lady requires no ongoing medical care. She would be advised, in general terms, to perform a regular home program of stretching and conditioning of the trapezial musculature. A program such as swimming might be routinely advised in this context."

[76] The plaintiff did not give any evidence that she would consider such a procedure nor that she had discussed such procedure with any medical advisor and as it is not expressed by Dr Todman at any higher level than a "consideration" as opposed to Dr Boy's being quite clear that the plaintiff "requires no ongoing medical care" I regard Dr Todman's opinion to be more speculative than probable and I therefore make no allowance under this heading.

[77] The plaintiff gave evidence that she continues to take Nurofen and Panadol tablets and that she is "still using about a packet a month of each of those".[57] The special damages schedule (Exhibit 16) was admitted in evidence and includes the cost per packet of Nurofen and Panadol in the sums of $5 and $3 respectively. The plaintiff therefore claims the sum of $2 per week for these tablets for the plaintiff's life expectancy of 53 years discounted by 15% for contingencies which would equate to a sum of $1,681.30.

[78] There is no direct medical evidence on point as to the efficacy of the plaintiff's continuing use of this medication for the rest of her life but I am not prepared to accept that it is reasonable or even medically desirable to continue to use such medication for the next 53 years either at all or as a direct consequence of the plaintiff's injury on 17 December 2002 but I accept some allowance is reasonable for her continuing use of this medication caused by the events of the 17 December 2002 and I allow the sum of $1,000 under this head.

[79] The plaintiff also gave evidence[58] that the beginning of the week is fine and although she gets headaches everyday, the pain in her neck is bearable up until the time she gets to the end of the week.[59]

[80] The plaintiff claims the sum of $3,258 for past gratuitous care and $15,215 for future gratuitous care. This claim is based on the plaintiff's evidence that she asks her husband to do a number of housekeeping chores for her[60] as well as trying "...not to do....gardening and mowing the lawn..." which were "...things (she) did before the accident"[61].

[81] The plaintiff estimated that the time now spent by her husband in doing various household chores that she previously did was "probably between one and one and a half hours something like that".[62] She further stated that her husband provides that degree of assistance "...whenever he's there" which is "...most of the time".[63] The plaintiff's claim for past care is therefore calculated at the rate of 1.5 hours per week at a cost of $18.10 per hour over a period of 120 weeks. The plaintiff's claim for future care is based at the same rate per week at the same cost over the whole period of the plaintiff's life expectancy discounted by 15% for contingencies.

[82] This plaintiff's entitlement to damages for gratuitous services is governed by s 54 of PIPA because of her injury being sustained prior to 9 April 2003 otherwise it would be governed by s 59 of CLA where the wording of the section is slightly different.

[83] Section 54 of PIPA relevantly provides as follows:

(2) Damages are not to be awarded for gratuitous services if the services are provided, or are to be provided -

(a) for less than six hours per week; and

(b) for less than six months."

[84] I would construe this subsection as meaning that unless the gratuitous services provided to a claimant are provided for six hours or more per week and for six months or more then the claimant is not entitled to an award under this head of damage.

[85] I was provided with copies of two decisions of this court, namely:

• Grice v State of Queensland (unreported 2004 Queensland District Court delivered 25 November 2004, Dick SC DCJ); and

• Coop v Johnston & Anor (unreported 2005 Queensland District Court delivered 24 March 2005, Britton SC DCJ).

[86] In Grice's case her Honour accepted the plaintiff's submission "...that both subparagraphs (a) and (b) must be met before a person is disentitled to claim damages (under this head) ... the uncontested evidence is that the plaintiff required 35 hours per week assistance for the first three weeks, for 12.5 hours per week for the next six weeks and four hours per week thereafter".[64]

[87] In Coop's case his Honour construed s 55D(1A) of the Motor Accident Insurance Act 1994 which was in identical terms to s 54 of PIPA as meaning "...that unless the services (for which damages are to be awarded) are provided both for at least six hours per week and over a period of at least six months, no damages may be awarded".[65] His Honour therefore adopted a construction consistent with the wording of s 59(1)(c) of CLA which uses the words "... at least 6 hours per week and ... at least 6 months" which has attempted to address the purported ambiguity of s 54(2) of PIPA.

[88] With due respect to her Honour Judge Dick SC I must agree with his Honour Judge Britton SC's construction of s 54 of PIPA and I am fortified in this view by the decision of the New South Wales Court of Appeal in Geaghan v D'Aubert [2002] NSWCA 260 together with the Explanatory Notes and the second reading speech of the Honourable the Attorney-General when the Personal Injuries Proceedings Bill was presented to the Queensland Parliament on 18 June 2002.

[89] The NSW Court of Appeal decision discussed the construction to be given to s 72 of Motor Accidents Act 1988 (NSW)("the MAA") which at the relevant time was couched in practically the same terms as s 54(2) of PIPA above except the term "compensation" is substituted for the term "damages". For completeness s 72(2) of the MAA provided as follows:

(2) No compensation is to be awarded if the services are provided, or are to be provided:

(a) for less than 6 hours per week, and

(b) for less than six months"

[90] Stein JA who wrote the leading judgment, at paragraphs [19] to [38] provides a very useful and informative analysis of the history, objects and outcomes of the MAA almost all of which are relevant and applicable to PIPA and for that matter the CLA. His Honour's observations at paragraphs [30] and [31] are particularly apposite.

[91] It is unnecessary for me to highlight the similarities between the objects of the MAA and PIPA but one has only to refer to various sections contained under Chapters 1, 2 and 3 of PIPA together with reference to the Explanatory Notes (with particular reference to Clause 54 dealing with Gratuitous Services) and the Attorney-General's second-reading speech of 18 June 2002 as appears in Hansard at pages 1848 - 49 to conclude that the primary object of PIPA was to contain awards of damages and in some instances abolish the right to claim them.

[92] It would be totally inconsistent with the objects of PIPA, the Explanatory Notes and the Attorney-General's second reading speech to construe s 54 as meaning anything other than that for claimant to recover damages for gratuitous care, such care must be provided for at least six hours per week and for at least six months.

[93] It follows therefore that in my view the plaintiff is not entitled to any damages under this head as she fails to qualify therefor under s 54 of PIPA and I make no allowance to her for gratuitous services.

[94] In summary I assess the plaintiff's damages as follows:

At a glance

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Judgment (214 paragraphs)

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Cases Cited (2)