Ardis-Phasey v Neal & Anor [2026] QDC 25

DISTRICT COURT OF QUEENSLAND CITATION: Ardis-Phasey v Neal & Anor [2026] QDC 25 PARTIES: TYSON ARDIS-PHASEY (Plaintiff) v TIANA EMILY NEAL ALLIANZ AUSTRALIA INSURANCE LIMITED (Defendants) FILE NO: 678/25 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Brisbane District Court DELIVERED ON: 27 February 2026 (ex tempore) DELIVERED AT: Brisbane HEARING DATES: 25, 26 and 27 February 2026 JUDGE: Porter KC DCJ ORDER: 1. The Defendant pay the Plaintiff $182,800.00. 2. The Defendant to pay the Plaintiff’s costs in the proceeding on the standard basis up to 2 February 2026. 3. The Defendant to pay the Plaintiff’s costs in the proceeding on the indemnity basis from 3 February 2026. CATCHWORDS: DAMAGES – PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – QUANTUM – where plaintiff was involved in a car accident at aged 14 – where the plaintiff suffered a lower back injury which persisted since the accident – where liability admitted – assessment of damages pursuant to the Civil Liability Act 2003 (Qld) (CLA) – where the ISV assessment is in issue – where assessment of future economic loss is in issue – how assessment of future economic loss for plaintiff aged 20 years who is to be approached – how to apply s. 55 CLA in that context -- 1 of 13 -- 2 COUNSEL: Newton, L R for the Plaintiff. Green, R D for the Defendants. SOLICITORS: Lewis Law Group for the Plaintiff. Moray & Agnew Lawyers for the Defendants. The facts [1] On 16 December 2019, the plaintiff was injured in a car accident. He was 14 years old at the time. It was not a severe accident, however, he did receive a heavy blow to his cheek, probably from the knee of a friend, and he was knocked unconscious briefly. He presented as the least injured person involved in the accident and was the last one taken to hospital by ambulance, though there was no undue delay in that occurring. [2] He was admitted to hospital and stayed overnight. He was in bed most of the time. Almost from his release from hospital the next day, he said he began to suffer from pain and discomfort in his lower back area. He first took active steps about it some two weeks after the accident when he went to a doctor at Morayfield complaining about lower back pain. He has consistently complained about lower back pain, of more or less the same character and intensity ever since, including stating that he was experiencing it while giving evidence in this trial. This raises the issue as to whether to accept his evidence as credible and reliable. [3] Back pain can be notoriously hard to prove by clinically observable conditions rather than on patient reporting of pain. Further, observable abnormalities in the back and the spine might not necessarily be the cause of pain which a patient reports. The back and the spine are complex structures in that respect, particularly the lower back. Insurers might understandably have reservations about significant claims which are based solely on self-reported lower back pain. Such cases largely turn on the credibility and reliability of the evidence given by the person who complains of the condition. [4] Mr Ardis-Phasey gave evidence and was cross-examined off and on for nearly a day and a-half. His version was fully explored in cross-examination against his history of playing sport, his history of gym work, his work history and surveillance footage obtained of him just three weeks before the trial while working inside a Costco shop and in a shop which he visited with a female friend. [5] I found the plaintiff him to be a credible and reliable witness. I could give numerous reasons for that, but it is not necessary to do so because the experienced counsel who appeared for the defendants rightly, in my view, did not submit to the contrary. All I need say is that Mr Ardis-Phasey presented as a disciplined, truthful, careful and reliable young man who frequently answered questions in a manner contrary to his interests in the trial, without a hint of prevarication. -- 2 of 13 -- 3 [6] He was also able to explain in considerable detail the reasons for his behaviour from time to time which might seem inconsistent with the injury he described, and he did so in a manner which I found persuasive and likely given his age and level of maturity between 2019 and 2023. The true position was that, while he had persistent pain and discomfort which he rated at four out of 10, he did not let it stop him doing anything he wished to do that he could manage to do. That a young man would behave in that way was unremarkable. [7] He also had had the experience of underestimating the limitations of his lower back or simply ignoring them out of bravado, suffering the consequences of increased pain for some days afterwards. The stand-out example was his documented (and ridiculous) attempt when he was about 17 to squat 115 kilograms, far more than he could or should have lifted at that time. He had increased pain afterwards and said he did the squat because his mates were around. I accept that evidence. He also said he had learned his lesson from that and has avoided squats and deadlifts since, which is more than some young men of his age would have been able to say. [8] These reasons proceed hereafter on the basis that I accept his evidence. It is what to make of his evidence which is now the real issue in this proceeding. Accepting his evidence means making the following important findings. (a) He suffered considerable pain from bruising around where the seatbelt applied pressure in the accident and from his cheek injury, but those problems resolved fairly soon afterwards. (b) He also suffered what both doctors described as a musculoligamentous injury to his lower back in the car accident. That injury manifested itself in pain from the day after the accident and has never resolved. (c) The pain from the injury has consistently sat at around four out of 10 on Mr Ardis-Phasey’s own scale, peaking at six or eight when the injury is aggravated, whether by work, by some stupid act which he later regretted, or some other cause. I recognise that those scale numbers are self-reported, but they give some guidance as to his subjective experience. [9] What is the consequence of those findings in damages? To resolve that issue, I need to make more findings about Mr Ardis-Phasey’s life. [10] When he was injured at 14, he was a keen soccer player. He returned to soccer after the injury. He played until 2022 when he stopped playing. His back did not stop him playing. Rather, he stopped because his longstanding coach died. Mr Ardis-Phasey could easily have tried to blame his back but did not. Good for him. I suspect his coach’s death might have been quite a blow for him. His father was estranged from his mother at birth and he lived with his mother in tight financial circumstances. It makes sense to me that he may have lost his enthusiasm for soccer when that happened. [11] He went to Caboolture State High School. His academic performance was very modest. I want to make clear to him that that does not mean he is unintelligent, -- 3 of 13 -- 4 nor that he cannot improve his education or have a successful life. In fact, my distinct impression is that he is quite intelligent, but it was a modest academic performance at school. He had some discipline issues with a few teachers, he misbehaved a bit, he could occasionally be a bit of a ratbag. But on the other hand, he gave evidence of lying on the floor to relieve his back in classes with the consent of his teachers, so long as he did his work. I infer that he kept his side of the bargain, which indicates that he got on well with a number of his teachers who trusted him to carry out his work. [12] When coming into year 12, his mother moved with his siblings a couple of hours’ drive from Caboolture. He wanted to finish year 12, and he found a caravan to live in, on a friend’s property. He did yard work and paid modest rent. The yard work was sometimes challenging for his back, but he did it anyway, which is probably the motive for the way he has responded to the discomfort from his back. He finished year 12. He is to be commended for achieving that in the circumstances. [13] After year 12, he had a couple of jobs, most important was his job as a house- washer. He did that job for around a year. He concealed his back problems from his employer until he had worked long enough to prove his worth as an employee. He successfully proved his worth as an employee, he received good references from clients and was considered a good employee by his two fellow workers who gave evidence. They also supported his evidence that the house- washing caused him pain and discomfort that sometimes limited his work effectiveness. He said some activities aggravated it. Roof-washing was a particular problem, because of having to stand at an angle on pitch roofs. His work colleagues gave evidence they would try to swap shifts so he could avoid that particular kind of work. He had also some limited issues with lifting, which his work colleagues again were willing to help him with. He was successful in the house-washing job, despite his back limitations. His supervisor had supervision tasks in mind for him, but he left that job before that opportunity arose. Again, with admirable frankness, he did not blame his back problems for resigning. He told the court he left the job because of disagreements with his employer’s behaviour towards him. His colleague who gave evidence said he wished he could have kept him. This is important evidence. It gives an insight into his determination to do what he can, the real limitations the back problem might or can create for manual labour involving heavy work, and his real potential otherwise for handling that kind of work. It also reflects his preference for working outside. [14] After he left that job, he obtained a couple of other jobs, primarily a job working in Costco, that involved lighter duties. He again concealed his back problem because he needed that job. He will not be able to conceal his back problems forever from employers, and this is one matter which Mr Newton specifically raises which might affect his future earnings. I come back to that below. [15] At Costco, he appears able to do a full shift of six or eight hours, though towards the end his back gets stiff and more noticeably painful. The surveillance video shows him doing minor back stretches regularly all through his shift. However, he does not appear to shy away from doing his job. The surveillance evidence is -- 4 of 13 -- 5 helpful, ironically, because it tends to confirm his evidence that the effect of the back injury is persisting and ever present. [16] I also need to deal with his sporting and gym background. After he stopped soccer, he started gym work. Again, he did not try to say this was because of his back; it was because he was being bullied. His gym work was successful and speaks again to his discipline and determination. Like many young people, he could not help preening on social media, and it must be conceded he developed quite a rig. [17] It was put to him in cross-examination that his physique involved developing and using the muscles in his lower back. That was probably correct, but it did not really impact on any issue in the case. Whatever he did, it did not reverse the discomfort. Indeed, it is highly likely that his gym work helped because, as he kept saying, being active was helpful. I think it is generally known that being active helps with back conditions, and he was as active as he could be, and probably a little bit more than he should have been on occasions. His investment financially in his gym work is very modest, using inexpensive supplements. [18] I should also mention his brief foray into rugby league since it took up some time at the trial. He was dragged along to training by friends. He played part of one season; he did not have much success. He did receive a significant shoulder injury, which is not resolved, and can probably be addressed with some limited surgery. He had a back injury from a tackle, which he linked to his lower back. He gave rugby league away after that. I do not think it undermines his evidence that he did those things. As always, he gave it a go despite his back and learnt what was and was not sustainable. [19] He otherwise appears to have lived his life as a young man as fully as possible. Having watched him over two days, I would expect nothing less from him. It is probably fair to say that other than the effect, not to be minimised, of ongoing pain and discomfort, his injury has not significantly affected the way he has lived his life. He is to be commended for not letting it do so. So many people with injuries and personal injuries claims tend to focus on that rather than getting on with things. He got on with things. [20] I now turn to treatment for his back, that can be shortly stated. He received physiotherapy from time to time but could not afford it long-term. He does not appear to have engaged in treatment or exercise directed particularly at the problem, though given his limited support in life, that is not a surprise. Helping young people to focus on the exact problem they have got and exactly how to solve it is something which they often need guidance from older people to do. It is no criticism of his mother, who has got plenty on her plate as it is, to say that he has not had that assistance. He did not give a great deal of evidence about his plans for his future. Consistent with his pragmatic view of life, I would have been surprised if he did. Pain and suffering [21] I am going to start with general damages for pain and suffering and impairment. There were helpful submissions about this niche area of legal expertise from both -- 5 of 13 -- 6 counsel. Mr Newton’s submissions at 47 to 52 in his trial submissions are a convenient summary where he submits: 47. Section 51 of the CLA is the starting for an assessment of general damages, which provides: General damages means damages for – a) pain and suffering; b) loss of amenities of life; c) loss of expectation of life; or d) disfigurement. 48. As the Plaintiff suffered multiple injuries in the subject accident, sections 3 and 4 of the Schedule 4 of the CLR are engaged. 49. An analysis of the approach to be taken in assessing general damages in circumstances where multiple injuries have been suffered was set out by Justice McMeekin in Allwood v Wilson & Anor [2011] QSC 180, and adopted in Martin v Martin & Allianz. The principles can be summarised as follows: a. the dominant injury is to be determined having regard to the range of ISV’s applicable to the injury; b. determine ISV within the range of ISV’s provided for the injury and determine whether the maximum ISV in the range adequately reflects the adverse impact of all the injuries (“the maximum dominant ISV”); c. if the maximum dominant ISV is not sufficient, then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV; d. in arriving at the appropriate ISV, the court is to bear in mind that the effects of multiple injuries commonly overlap; e. in assessing an ISV for multiple injuries, the range for, and other provisions of Schedule 4 in relation to an injury other than the dominant injury of the multiple injury of the multiple injuries can be considered; f. the overriding purpose of the ISV’s prescribed – to reflect the level of adverse impact of the injury on the injured person; g. the court is guided by the provisions of Schedule 4 but is not necessary limited to those factors and a court can have regard to other matters relevant to the particular case, e.g. insight, life expectancy, pain, suffering and loss of amenity; h. an important consideration is the extent of the whole person impairment. 50. Here, the basis of the award for general damages is focused on pain and suffering experienced by the Plaintiff, and loss of amenities of life. 51. Section 9 of the Regulation provides: Court may have regard to other matters 52. In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case. Examples of other matters – • the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life; • the effects of a pre-existing condition of the injured person; • difficulties in life likely to have emerged for the injured person whether or not the injury happened; -- 6 of 13 -- 7 • in assessing an ISV for multiple injuries, the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries. 53. Section 10 of the Regulation provides: Whole person impairment The extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV. [22] The first issue to grapple with is the whole-of-person impairment. A lot of time was spent on this question, which has a modest impact on the total damages, even for this modest case. I heard evidence from two doctors on that subject, Dr Boyce and Dr Todman. They disagreed. Dr Boyce for the plaintiff considered the injury was a category 1 injury under the DRE scale,1 with a consequence that the injury fell within item 94 on schedule 4 Civil Liability Regulations. That would be impairment of zero to four per cent. On the defendant’s interpretation of category 1 DRE, that would be zero per cent. The defendant accepted there are other factors for the ISV figure in this case and that taking those matters into account, an award of $6,000 was correct. [23] Dr Todman, for the defendant, thought the back injury was a category 2 injury under the DRE scale and fell within item 93, ISV of five to 10 per cent, and the plaintiff contended that, with other injuries and the chronic pain taken into account, an ISV of 10 applied. [24] There was a good deal of dispute between the doctors to the methodology, using that word correctly, for assessing impairment of the spine under the AMA guide. Dr Boyce considered that it required identifiable clinical consequences and that mere pain without objective indications or subjective indications of the kind identified in DRE 2 meant that the injury was a category 1 impairment. He did not agree that the reduced range of motion identified by Dr Todman was a clinical observation of impairment because it could not be compared to any baseline range. [25] Dr Todman seemed to hold the view that first, he could give a reasonable estimate of reduced range based on clinical experience of normal range for a man of Mr Ardis-Phasey’s age and fitness, and second, that was sufficient to found a category 2 conclusion along with subjective pain reports and his other observations in the course of his examination. [26] Both positions are argued as a matter of construction of the part of the AMA guide in question. Both doctors were confident of their position. I found Dr Todman’s report and evidence to lack considered reasoning, and there was a scientific logic in Dr Boyce’s critique. Further, I had some reservations for that reason about the magnitude of the reduced range stated by Dr Todman, particularly as Dr Boyce did not find a reduced range. [27] Ultimately, while the whole of body impairment point might ordinarily be important, I think it has less importance where the real impact that I identified 1 Set out in Chapter 15 entitled The Spine in the AMA Guide to the Evaluation of Permanent Impairment which both experts accepted applied to analysis of the impact of this injury. -- 7 of 13 -- 8 from the injury is ongoing pain and discomfort. That can be considered in calculating ISV. Even Dr Boyce fairly conceded such could well exist and the injury complained of was consistent with the accident. [28] In my view, a finding by an experienced doctor or an acceptance by an experienced doctor of ongoing pain reported by a client in the course of a clinical examination is sufficient with the other evidence in this case to sustain a conclusion that the injury is within item 93 in the Civil Liability Regulations, and I do not think, in the circumstances, more detailed reasons are required. Taken with the other injuries, I find an ISV of nine in relation to this principal injury and the other injuries. [29] Counsel helpfully worked out during delivery of these reasons that an ISV in this case gives rise to damages of $15,300. They agree on that figure. I award damages accordingly. Future care [30] There is a claim for future care, it is based on Mr Ng’s evidence. I did not find that evidence particularly helpful or persuasive. It was conditioned on what Mr Ardis-Phasey said and it is to his evidence that I look for assistance on this head of damages. He did say if he had gardening to do, he would pay someone to do it. He did say he found using a mower particularly problematic for his back. It was assisting with gardening activities that Mr Ng thought most relevant. Despite that evidence, there are several reasons why I am not satisfied on the balance of probabilities there should be an award for that loss or any other kind of loss in that category. [31] First, for a loss of that kind to arise, it depends on Mr Ardis-Phasey living long- term in property requiring mowing and heavy gardening. Given he lives at Caboolture, there is a real prospect he will not be living in such a residence, and less so the closer he gets to the city. [32] Second, it depends on Mr Ardis-Phasey not being able to find a way to do such work, regardless of limitations which he may continue to have with his back. Solutions might include a light electric mower, regular grass cutting to make mowing easier and so on. I think given his performance at work and at this trial, if he had to, he would apply his usual determination to the task and come up with a solution that did not involve him sitting around watching some other person cutting his grass. [33] Third, he strikes me as a young man who knows the value of money and who can live frugally. I just find it hard to accept he would employ a gardener if he could avoid it. [34] No award for future care will be made. Future economic loss [35] I now come to the assessment of future economic loss. This is the most difficult part of the case. -- 8 of 13 -- 9 [36] The relevant principles have been fully explained in the submissions of both counsel and conveniently summarised in my own judgment in Martin v Martin [2020] QDC 322 at [60], and [72] to [75]. I will not set them out again. There is no material dispute between counsel as to those principles, just what to focus on and how the principles apply to the facts of this case. [37] There are a couple of points of principle I wanted to specifically note, though. [38] First, what I am endeavouring to do is to identify the effect on Mr Ardis- Phasey’s capacity to earn income in the future, and then to identify the damages which compensate for that loss of capacity. The rate of wage likely to be earned as compared to the wage which could have been earned without the injury in some current job is a way of calculating damages flowing from that loss, but the actual versus hypothetical wages calculation is not the only way to measure the loss. A matter of principle, I am identifying loss of capacity and the economic consequences of that loss of capacity for this particular young man with this injury. There is more than one method for doing so. [39] Second, when a Judge is assessing the consequences of loss of earning capacity for a young person, the task is a very difficult one. They should not be underestimated. Young people change enormously, especially from 15 to 30, as their brain fully develops, and they start to integrate experiences and develop judgment. They have good luck or bad luck. Sometimes they serendipitously meet someone or have an experience which opens up new vistas. [40] It can be a mistake to put too much weight on what a young person happens to be doing at the time a matter comes on for trial. It is quite artificial to infer, I think in most cases, that where they are and what they are doing at 20 is their future until 65, or even a likely future, especially for this energetic young man. I endorse again the commonsense and sound principles articulated by Justice McMeekin in Armstrong v Smith [2012] QSC 334, especially at [65] to [67]. [41] Third, applying s 55 Civil Liability Act 2003 (Qld) (CLA) requires a fact-heavy analysis based on the evidence at trial. The defendant concedes, and again rightly in my respectful view, that there is some future economic loss. Mr Green ultimately submitted at paragraph 39 of his submissions: …There are skills the Plaintiff has developed, it is appropriate to note resilience in his approach to life, though it is important for this honourable court to make findings about the future of the Plaintiff regarding his income earning capacity. There is no career trajectory that emerges as a theme from the evidence before the court. There is no earnings history that may be utilised for the purpose of determining putative income. It is an assessment only on the basis of prophesying as to the future of the Plaintiff and what is regarded as the consequences for him of any injuries arising out of the incident. It is respectfully submitted that the sum of $50,000.00 would be appropriate in all of the circumstances under this head of damage. [42] I generally agree with some of those comments so far as they go. I do not agree with the word “prophesy” if it implies guessing. I certainly think I can do better in articulating, “assumptions upon which an award can be based and the methodology used to arrive at that award” than appears in paragraph 39 in Mr Green’s submissions – no criticism intended. -- 9 of 13 -- 10 [43] Mr Newton appeared for Mr Ardis-Phasey. He submitted that the findings which would inform an assessment of damages for future economic loss are as follows: It is submitted the Court should find that the Plaintiff will suffer losses in the future having regard to his age, work history and chronic lower back injury impairment, because: a. the Plaintiff’s ability to perform his full work duties has been impaired; b. the Plaintiff’s capacity to undertake full working hours has been impaired; c. the Plaintiff’s will likely be less desirous and motivated to undertake over-time in circumstances where his symptoms become aggravated and he experiences heightened levels of pain developing over the course of a regular shift; d. the Plaintiff is likely to be disadvantaged on the open labour market and therefore his future job prospects are compromised because, pursuant to section 571B of the Workers Compensation and Rehabilitation Act 2003, he has an obligation to tell prospective employers about his injury; e. if he does not disclose his lower back injury to any future prospective employer, it is likely that his deficiencies will become perfectly obvious in a workplace over time; f. the Plaintiff has, to date, had the benefit of accommodating employers; g. the evidence is that he has been, and is likely to continue to be, slower than an able- bodied man; h. there will be a narrowing of opportunities and avenues available to him to generate an income; i. the Plaintiff’s chronic lower back injury will preclude the Plaintiff from fully realising his inherent earning capacity; j. as per the evidence given by the Plaintiff in respect of his work at House Washing Experts, he requires frequent breaks throughout the course of his shift to assist in managing and alleviating symptoms; k. there has been a narrowing of opportunities and avenues available to him to generate an income. [44] There is merit in a number of these factors, but they are based in part on an approach to measuring loss based on his present job at Costco and his limitations working at house-washing. Those findings provide a logical calculation based on likely loss of hours at Costco that can be based only on the submission that Mr Ardis-Phasey is working beyond capacity because he is working all the hours he is allocated. I do not accept that proposition nor that the approach suggested is the correct one to assessing his future economic loss. [45] My analysis is this. [46] For the reasons given, I do not think an analysis based on his current job is a correct one for a young man in his position. I consider a more realistic and broad approach is required. These are the findings I think are relevant. [47] First, Mr Ardis-Phasey likes to be outdoors and active, and clearly would prefer that kind of work. There is a realistic probability that performing at a high level in such jobs might not be possible in the short or medium or perhaps even the long term because of his back pain. [48] Second, Mr Ardis-Phasey will have to disclose his back problems to employers eventually, even allowing for his pragmatic and understandable decision to -- 10 of 13 -- 11 conceal it until he can prove his worth as an employee. That worked with the house-washing. Whether that works at Costco remains to be seen. The consequence of the surveillance footage inside the store is that he has been forced to disclose that problem. There is no evidence that it was a problem before. How that will turn out might be a question causing him some anxiety. That he was put in that position from some surveillance footage which did not damage his case, in fact, assisted it, and was taken as a result of a trespass to his employer’s premises, is a galling aspect of this trial to which I shall return. [49] Third, it is clear that Mr Ardis-Phasey is a hard worker and a disciplined young man. He clearly has the potential, in my view, to be successful in his work life. Without his injury, I think he would have worked in a manual skilled or semi- skilled area and worked very hard. I perceive a nascent determination to succeed. What this means is this: I am assessing the impact of his back injury on his working capacity. Even though he can do his job at Costco as it is, without his back problem, he would likely work ‘over capacity’, even in his job at Costco. It is his capacity, which I find with a high degree of certainty he would have had to work over capacity compared to most others, quickly, intensely and for long hours in an effort to succeed, which is the impact this injury is most likely to have on this young man’s earning capacity. [50] Fourth, it seems to me the most likely future for a hardworking young man with his physique and abilities and experiences at school is in skilled or semi-skilled work – trade work or similar. It seems to me that that is where his back injury in its current condition might manifest itself in damaging his future capacity to earn by restricting or slowing, or perhaps – though not certainly – preventing him from succeeding in the area he seems most suited to pursue. As Mr Newton eloquently put it, the effect of the injury might be to clip his wings in that area. The potential earnings in those areas are very significant. [51] Fifth, there is, in my view, a real prospect that the impact on his earning might be reduced significantly in the future by proper and focused treatment. He will have the funds to do that as a result of this judgment. [52] Based on all these findings, I conclude: (a) For s 55(1) CLA, an award of damages for loss of earnings is unable to be precisely calculated by reference to a defined weekly loss in the case of this young man. (b) For s 55(2) CLA, I am satisfied on the balance of probabilities that he will suffer loss in his future earning capacity, having regard to his age, work history, potential permanent impairment, and the other factors I have identified. (c) As to s 55(3) CLA, my assumptions are consistent with my findings, that the likely impact on his future earning capacity is that the injury will impact on his higher-than-normal capacity to work and earn income in the area most suited to his character and personality, but that that impact might be modified over time. -- 11 of 13 -- 12 (d) As to stating my methodology for s 55(3) CLA, I am not sure what is meant by methodology in that circumstance. Methodology means “a method or body of methods used in a particular field or study of activity.” That seems inapposite to the task posed for a Judge applying s 55(3). Perhaps I should just read it as asking how I have come up with the figure, i.e. the method I used to calculate it rather than the methodology. The method I have used is to identify a sum which, taking everything for and against the impact on his earning capacity and the value of that impact into account, as I have outlined in some detail, fairly represents the loss. I can do no better for the young man before me, having concluded on the balance of probabilities that there is a loss to be compensated. [53] I assess his future economic loss at the figure of $160,000. I do not include superannuation in that because it is not a calculation done by reference to a wage, but a global amount. Future treatment costs [54] The defendant should be quite keen on this part of the general damages because it is where I deal with the prospect that Mr Ardis-Phasey will be able to manage and reduce the impact of his injury so as to reduce the long-term effect on his earning capacity and reduce the amount that I awarded for future economic loss. [55] I consider that a proper allowance for treatment is for consistent, focused physiotherapy from a skilled practitioner who will generally charge about $170 an hour and pilates or other specific, lower back muscle training in classes supervised by a skilled person at about $25 a class. [56] I think a year of fortnightly physiotherapy sessions and bi-weekly strengthening classes focused on the small muscles necessary to relieve lower back pain is most likely to assist. [57] I rounded the figure out and award $6,000 for that treatment. [58] I note s 57 CLA. I did not understand there to be a dispute of the therapeutic benefit of physiotherapy treatment for this kind of injury, nor indeed pilates or other focused fine muscle training for the lower back. Agreed out-of-pocket expenses [59] There are some also out-of-pocket expenses agreed at $1,500. Other matters [60] I want to say something about the surveillance footage in this case. The surveillance footage was taken inside the plaintiff’s employer’s supermarket and in another shop where he was present with a female friend. There was no suggestion of consent from the occupants of either premises. This likely involved unlawful trespass: Slaveski v Victoria [2010] VSC 441 at [1362] to [1364]. -- 12 of 13 -- 13 [61] In that case, there was litigation involving the taking of a film by police officers and whether that was lawful under a search warrant. The observation in that case was that there was no suggestion of express or implied authority to film arising from the implied invitation to enter premises from the occupier and the counsel in that case was correct not to argue that there was no trespass in those circumstances (subject to the effect of the search warrant). [62] I also refer to Barker v R [1983] 153 CLR 338. The interesting thing about that case is that it identified that entering premises with an intention to do something beyond that which might be expected by a shop owner is not itself a trespass, but of course, the corollary of that, as I read the High Court decision, is that when you begin doing something that was plainly outside the scope of the invitation, that becomes a trespass. [63] It seems to me to be strongly arguable that filming as occurred here without the consent of Costco at their premises was an unlawful trespass. Certainly, the inference that Costco would have refused permission to film is strong from the reaction to the filming once discovered. Mr Ardis-Phasey said his employer wanted to prevent the return of the person who filmed to Costco premises. [64] There was another offensive aspect of it, and that is the filming in the second shop involved what I thought was immodest filming of a young woman who had nothing to do with this case. [65] While I understand insurers have an obligation to their shareholders and to the public and to the public interest to challenge cases that they think should be challenged and they should not be criticized for doing so, I think they should consider the law of trespass when commissioning surveillance. Further, whoever took the images of the young woman should be told that they should not do that again. Costs [66] The plaintiff’s counsel tendered a formal offer to settle under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) that was made by the plaintiff on 2 February 2026 for $150,000. The defendant advanced no submission that the plaintiff had not beaten that offer nor that the ordinary consequence under the UCPR should not follow. Accordingly, I order that the defendant pay the plaintiff’s costs of the proceedings up to 2 February 2026 on the standard basis, and on and from 3 February 2026 on the indemnity basis. -- 13 of 13 --