Barbina v McKenzie & RACQ Insurance Ltd [2024] QDC 153

DISTRICT COURT OF QUEENSLAND CITATION: Barbina v McKenzie & RACQ Insurance Ltd [2024] QDC 153 PARTIES: SVETLANA BARBINA (plaintiff) v BRADLY ALEXANDER McKENZIE (first defendant) and RACQ INSURANCE LIMITED (second defendant) FILE NO: 3008/22 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 18 October 2024 DELIVERED AT: Brisbane HEARING DATE: 2-4 September 2024 JUDGE: Dearden DCJ ORDER: (1) I order that the defendants pay the plaintiff the sum of $15,320 damages in respect of the motor vehicle collision occurring on 3 June 2020. CATCHWORDS: DAMAGES – personal injury – quantum only – where liability has been admitted – where the plaintiff was injured in a motor vehicle collision – whether the plaintiff suffered permanent cervical spine injury as a result of the collision – whether the plaintiff has suffered or will suffer loss of income as a result of the cervical spine injury – whether the plaintiff has incurred or will incur special damages as a result of the cervical spine injury – whether pre-existing injuries of the plaintiff are significant in assessing damages LEGISLATION: Motor Accident Insurance Act 1994 (Qld) s 52 Civil Liability Act 2003 (Qld) ss 55, 59, 59A. Civil Liability Regulation 2014 (Qld) CASES: Bell v Mastermyne Pty Ltd [2008] QSC 331 Munzer v Johnston & Anor [2008] QSC 162 Allwood v Wilson & Anor [2011] QSC 180 -- 1 of 20 -- 2 CSR v Eddy (2005) 226 CLR 1 Shaw v Menzies & Anor [2011] QCA 197 Sharman v Evans (1977) 138 CLR 563 Malec v JC Hutton Pty Ltd [1990] HCA 20 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Husher v Husher (1999) 197 CLR 138 State of New South Wales v Moss (2000) 54 NSWLR 536 Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264 Balnaves v Smith & Anor [2012] QSC 192 COUNSEL: The plaintiff appeared self-represented M Forbes for the first and second defendants SOLICITORS: The plaintiff appeared self-represented Jensen McConaghy Lawyers for the first and second defendants Introduction [1] The plaintiff, Svetlana Barbina, claims damages for personal injury suffered in a motor vehicle accident on 3 June 2020 at Bahrs Scrub, Queensland. It is accepted that the collision occurred because of the negligence of the first defendant, Bradly Alexander McKenzie, who was the driver of a BMW sedan, registration number [redacted], which collided with the Toyota station wagon, registration number [redacted], driven by the plaintiff. [2] The second defendant, RACQ Insurance Limited accepts that it is liable for the negligence of the first defendant and consequential injury pursuant to the Motor Accident Insurance Act 1994 (Qld) s 52. [3] The plaintiff was initially represented by a firm of solicitors who were responsible for the filing of the claim and statement of claim, but were granted leave to withdraw as solicitors on the record on 19 March 2024. The proceedings were conducted from that point on by the plaintiff, with the assistance of her son Dmitry Sevostjanov, who during the trial of this matter was permitted to remain at the bar table with the plaintiff as a “McKenzie friend”. Given that the plaintiff required a Russian interpreter, Mr Sevostjanov was also given leave to ask questions and make submissions (where appropriate) on behalf of the plaintiff. -- 2 of 20 -- 2 [4] Without objection, the bulk of the evidence-in-chief on behalf of the plaintiff was tendered by way of sworn witness statements, four witnesses being called to give oral evidence supplementing those witness statements, where appropriate, and being available for cross-examination. The plaintiff’s biography [5] The plaintiff was born in Kyrgyzstan on 22 May 1979 where she completed nine years of education, worked after school as a dressmaker for a year, obtained a diploma in massaging, then subsequently worked from 1995 to 1996 as a seamstress and received a diploma in 1996. Following this, the plaintiff worked in a wine factory for another year. When she was 19, her family moved to the United States of America, where she studied English for six months and worked as a seamstress for more than a year. While living in the USA, the plaintiff moved cities and started working as a cake decorator in a bakery and worked in aged care. The plaintiff lived in the USA for three years before marrying Aleksey Sevostjanov and moving to Australia in 2001, with her first child, Samuel Sevostjanov being born on 1 February 2002, followed by Dmitry Sevostjanov born on 31 February 2003, Aleksey Sevostjanov on 29 April 2004, Serge Sevostjanov on 28 December 2005, Victoria Sevostjanov on 24 December 2007, Dennis Sevostjanov on 11 October 2013 and David Sevostjanov born on 2 September 2015.1 [6] In 2010, the plaintiff moved from New South Wales to Queensland. When her husband struggled to find a job, she worked at House Maids as a cleaner for four months until her husband started working. She then quit work to stay at home with her then five children who were all under nine years of age. The plaintiff attests to being active both socially and physically, taking her children to theme parks, hikes and out with other families almost every weekend, and sewing as a hobby, including sewing costumes for church plays, clothes for her family and friends and re-doing upholstery for chairs, sofas and boats. [7] The plaintiff gives evidence that when not cooking or cleaning, she did DIY projects in the houses she lived in such as refurbishing furniture, helping her husband with house renovations, managing all paperwork, buying cars and was very involved with 1 Exhibit 1 – Statutory declaration of Svetlana Barbina, [3]-[12]. -- 3 of 20 -- 3 the church and church functions/events, including being in charge of the kitchen for the church. [8] The plaintiff attended church about three times a week and travelled overseas almost every two years.2 [9] The plaintiff claims to have suffered the following personal injuries as a result of the motor vehicle collision:-3 “(a) fractured sternum; (b) right hip injury; (c) low back injury; (d) low back injury (sic); (e) thoracic spine injury; (f) cervical spine injury; (g) right upper thigh injury; (h) chest wall and abdomen injury; (i) right leg bruising; and (j) psychological injury”. [10] The second defendant in its pleadings4 admits that the plaintiff suffered a fractured sternum but asserts that the injury has long since resolved; denies that the plaintiff suffered a right hip injury; admits that the plaintiff sustained a low back injury but asserts that it was a short term exacerbation of pre-existing disc bulges at L4/5 and L5/S1 with impingement on the exiting right L5 nerve route, and asserts that the injury has long since resolved; admits that the plaintiff suffered both a thoracic spine injury and a cervical spine injury but asserts that the injuries were soft tissue in nature and have long since resolved; admits that the plaintiff suffered a right upper thigh injury, a chest wall and abdomen injury and right leg bruising, but asserts that those injuries have long since resolved; and does not admit that the plaintiff suffered a psychological injury. [11] The relevant triable issues would appear to be as follows: 2 Exhibit 1 – Statutory declaration of Svetlana Barbina, [13]-[28]. 3 Claim and Statement of Claim filed 9 December 2022. 4 Defence of the second defendant filed 1 February 2023, [3]. -- 4 of 20 -- 4 (a) Injury – whether the plaintiff suffered a permanent cervical spine injury in the accident and if so, the extent of any such injury – in particular the appropriate permanent impairment assessment? (b) The significance of any other injuries or symptoms suffered before the motor vehicle accident; (c) General damages – what is the appropriate assessment of the plaintiff’s cervical spine injury pursuant to the Civil Liability Act 2003 (Qld) (CLA) and Civil Liability Regulations 2014 (Qld) (CLR) Items 89, 92, 39.2, 12 and 128. (d) Past loss of income – whether the plaintiff has as a consequence of a cervical spine injury suffered past loss of income and if so, the extent of any such loss; (e) Future loss of income – whether the plaintiff as a consequence of a cervical spine injury, will suffer future loss of income and if so, the extent of such loss; (f) Past and future care and assistance; (g) Past special damages – whether the plaintiff has, as a consequence of a cervical spine injury, incurred past special damages and if so, in what amounts; (h) Future special damages – whether the plaintiff will, as a consequence of a cervical spine injury, incur future medical expenses, and if so, the extent of such costs. Injury [12] The second defendant admits on the pleadings that, as a result of the motor vehicle collision on 3 June 2020, the plaintiff sustained a fractured sternum, a lower back injury, a thoracic spine injury and a cervical spine injury (although the nature and extent of those injuries is disputed).5 The second defendant also admits that the plaintiff developed bruising to the right thigh, leg, chest and abdomen,6 but identifies those as transient injuries.7 The second defendant denies that the plaintiff suffered a right hip injury.8 5 Defence of the second defendant, [3(a), (c), (d) & (e)]. 6 Defence of the second defendant, [3(f), (h)]. 7 Second defendant’s submissions, [4]. 8 Statement of claim, [6(b)]; Defence of the second defendant, [3(b)]. -- 5 of 20 -- 5 [13] The plaintiff in her pleadings also alleged that she sustained a psychological injury9 which was the subject of a non-admission by the second defendant.10 The second defendant submits, and I accept, that the pleaded psychiatric injury is not compensable because the plaintiff led no expert evidence in respect of any psychiatric injury arising as a result of the accident.11 [14] It also appears uncontroversial that the plaintiff’s principal injury is her lower back injury, given that all other orthopaedic injuries were assessed by Dr King (expert orthopaedic medical witness called by the plaintiff) and Dr Morgan (expert orthopaedic medical witness called by the second defendant) and each assesses all other injuries except the lower back injury as not resulting in any level of whole person impairment.12 [15] In respect of the lower back injury, Dr King in his report, under the heading “permanent impairment assessment”, identifies that injury as being an “aggravation of disc bulge L5/S1 level causing right L5 radicular symptoms” which he characterises as ‘DRE lumbar impairment category II’ and opines, pursuant to the American Medical Association – Guides to the Evaluation of Permanent Impairment (Fifth Edition) (AMA Guide), p. 384, that the injury falls to be assessed pursuant to the following criteria: “Category II significant clinical findings, non-verifiable radicular complaints which are concordant with imaging findings. No fractures. Surgery has not been performed. Percentage impairment of the whole person 8%” Dr King notes further that: “the higher figure is chosen as there is a severe restriction in activities of daily living and work activities. Symptoms are considered severe”.13 [16] Dr Morgan, on the other hand, identifies a “probable … flexion/extension acceleration injury of the cervical segment of the vertebral column … [which] could give rise to a musculoligamentous strain injury” which, with gradual healing, makes 9 Statement of claim, [6(j)]. 10 Defence of the second defendant, [(3)(i)]. 11 Second defendant’s submissions, [6]. 12 Exhibit 2 – Independent medical examination report of Dr LD King, p. 9 [1], [2], [4], [5], [6], [7]; Exhibit 18 – Medico-legal report of Dr David Morgan, pp. 10-11. 13 Exhibit 2 – Independent medical examination report of Dr LD King, p. 9, [3]. -- 6 of 20 -- 6 it unlikely that the plaintiff “sustained any injury of significance in the region of the cervical spine”.14 [17] In respect of the lumbar spine, Dr Morgan identifies that the plaintiff “has regained a full range of motion, has no evidence of any neurological loss and has nothing more than a probable age-related degenerate disc at the lumbosacral junction … [and] as with the cervical spine, [Dr Morgan opines that the plaintiff] will return to her pre- accident state”.15 [18] In respect of the fractured sternum, Dr Morgan identifies that “whilst this would have given rise to considerable discomfort initially and interfered with [the plaintiff’s] ability to both ambulate and ventilate, the fracture has since healed” and notes further that “the natural history for a sternal history is excellent. Most patients return to complete symptomatic normality”.16 [19] On the basis of these expressed medical opinions, which also noted that “… other injuries appear to have been of a soft tissue nature and have since resolved completely”17, Dr Morgan’s impairment assessment with respect to both the cervical spine and the lumbar spine, pursuant to AMA Guide, Ch 15, DRE 1, was 0% of whole person function (in terms of percentage permanent impairment).18 [20] The starting point is that each of Dr King and Dr Morgan accept that the plaintiff did not sustain a lumbar disc injury de novo,19 but rather suffered an aggravation of a pre- existing lumbar condition, either temporary (the opinion expressed by Dr Morgan) or a permanent aggravation making the pre-existing L5/S1 disc bulge significantly worse causing right L5 radicular symptoms (Dr King’s view). [21] Dr Morgan was provided with the plaintiff’s medical records from the Blayney Family Medical Practice, which documented an attendance on Dr Natalia Bakhilova on 9 August 2006, the notes of which read, relevantly “Longstanding low back pain OE: NAD unable to do straight leg rising on Rt; ref CT scan”. Dr Morgan, in a 14 Exhibit 18 – Medico-legal report of Dr David Morgan, p 10. 15 Exhibit 18 – Medico-legal report of Dr David Morgan, p 11. 16 Exhibit 18 – Medico-legal report of Dr David Morgan, p 11. 17 Exhibit 18 – Medico-legal report of Dr David Morgan, p 11. 18 Exhibit 18 – Medico-legal report of Dr David Morgan, pp. 11, 15-16. 19 T1-34 l 10 (Dr Lloyd King); Exhibit 19 – Supplementary report of Dr David Morgan, [5]. -- 7 of 20 -- 7 supplementary diary note,20 considered this significant not only because it suggested that the plaintiff “had longstanding low back pain (which she categorically denied to [Dr Morgan] during the course of [his] examination)”, but in the light of that information and the report of the CT scan of the lumbar spine, in which the reporting radiologist referred to “neural exit foraminal stenosis more severe on the right, impinging the L5 nerves. There was lower lumbar facet joint arthrosis. There was an annular bulge of the L5-S1 discs”, then in Dr Morgan’s view, “on the balance of probabilities, the mechanism of the motor vehicle accident was unlikely to result in a lumbar disc injury de novo”. In Dr Morgan’s opinion, the accident “could theoretically give a temporary exacerbation of a pre-existent degenerative problem in the lumbar spine … [but] a permanent aggravation was improbable”. He went on to identify that “given [the plaintiff’s] positive past history (just revealed) and the facet joint arthrosis noted by the radiologist, it is probable her lumbar malady is of a longstanding nature (arthritic changes, which are visible radiographically, take years to develop) [and] …the accident has little, if any, adverse effect”. Dr Morgan goes on to opine that “the complete absence of objective evidence of a lumbar injury reinforces my opinion”.21 [22] As McMeekin J stated in Bell v Mastermyne Pty Ltd [2008] QSC 331, [19]: “… the assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting – of his or her symptoms; of their impact on the plaintiff’s life, of pre-existing problems; of the genuineness of effort to regain employment after injury; and of their capacity to maintain employment. These are all difficult issues for a defendant to thoroughly investigate and test. In truth no one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities”. [23] The second defendant, while acknowledging the plaintiff’s limited proficiency in English (and of course I note that her evidence was given with the assistance of a Russian interpreter), submits that the plaintiff presented as a defensive witness who repeatedly refused to directly answer questions; repeatedly attempted to answer questions which she had not been asked; provided differing answers as to why she had denied prior back pain when attending medico-legal specialists, including not 20 Exhibit 19 – Supplementary report of Dr David Morgan, [5]. 21 Exhibit 19 – Supplementary report of Dr David Morgan, [5]. -- 8 of 20 -- 8 remembering having the discussion with Dr Morgan;22 not recalling having previously had the same kind of pain;23 not recalling having the same kind of prior pain which is why she denied it24 and then saying as the mother of five children she thought it would be “normal to experience from time to time back pain” but that it was “not that back pain that I can recall now”.25 [24] The applicant was cross-examined about her attendance at the Blayney Family Medical Practice on 9 August 200626 and after initially stating that she didn’t recall the reason why she saw that doctor on that occasion, accepted that “probably there was long-standing back pain that I’ve forgotten about”.27 [25] The second defendant identifies other credibility issues with respect to the plaintiff’s evidence, including her refusal to answer a question as to whether she agreed she would be unable to work while home schooling some of her children after the accident28 (although ultimately conceding that she could not work while home schooling); then claiming that driving her children to and from the school bus stop (a fifteen minute trip each way) was too painful for her,29even though she had resumed driving within months of the accident including long distance driving;30 then stating (inconsistently) that she had home schooled her children because of Coronavirus.31 [26] I consider that in the light of those particular issues and the paucity of other relevant evidence in respect of the consequences of the motor vehicle collision, the plaintiff’s evidence, where relevant and admissible, would need to be scrutinised with great care and would have to be assessed against other objective evidence where available. [27] In respect of the fundamental conflict as to whether the plaintiff suffered a temporary exacerbation of her pre-existing lumbar condition (as Dr Morgan opines) or a permanent aggravation making the pre-existing L5/S1 disc bulge significantly worse 22 T1-16 l 41. 23 T1-17 l 20. 24 T1-17 l 10. 25 T1-18 ll 17-19. 26 Exhibit 20 – Blayney Family Medical Practice medical records. 27 T1-20 ll 7 & 14-15. 28 T1-63 l 15 – T1-64 l 10. 29 T1-63 ll 20-25. 30 T1-64 ll 31-36 & 41. 31 T1-63 l 41. -- 9 of 20 -- 9 (Dr King’s opinion), I accept the second defendant’s submissions for the following reasons, namely: (a) Dr Morgan’s evidence that it is not anatomically possible for a L5/S1 disc bulge to be compromising the right L5 nerve route because the L5 nerve route leaves the spinal canal above the level of the disc and passes through the neural foramen which, in respect of the plaintiff, is stenosed (narrowed) meaning that “it was the longstanding degenerative disease (facet joint arthritis) not the disc bulge that was compromising the nerve routes”.32 (b) Dr Morgan’s view is consistent with the records from the Blayney Family Medical Practice which notes as of 9 August 2006, “longstanding low back pain” with the plaintiff “unable to do straight leg rising on right”.33 On balance, this sits more comfortably with Dr Morgan’s view about the mechanism of the accident, as likely to have only resulted in limited amplitude of the movement of the lumbar spine (given the lap/sash seatbelt) and there is a lack of any objective evidence to support Dr King’s view that the force of the collision could have caused a more serious injury in the form of an aggravation.34 [28] Although Dr King would not accept that Dr Morgan’s view was plausible (i.e. a temporary exacerbation of an underlying condition of the plaintiff), based on Dr King’s view as to the ambiguity of the term “longstanding”; the lack of further medical reviews following the 2006 Blayney Family Medical Practice attendance; and the plaintiff’s reporting of a worsening of her symptoms post-accident; I consider that, on balance, Dr Morgan’s explanation of the degenerative facet joint arthritis, not the bulging disc, compromising the nerve routes and consequently being responsible for the plaintiff’s ongoing pain, has the consequence that I accept that the motor vehicle accident was not responsible for a permanent aggravation of a pre-existing underlying condition, but rather a temporary exacerbation of that condition. Damages [29] The assessment of the plaintiff’s damages is governed by the provisions of the CLA and the CLR and given my acceptance of the second defendant’s submission that the 32 T3-7 ll 15-25. 33 Exhibit 20 – Blayney Family Medical Practice medical records. 34 Second defendant’s submission, p. 5 [13(c)]. -- 10 of 20 -- 10 plaintiff’s ongoing lower back symptoms cannot be attributed to the motor vehicle collision, then the plaintiff’s damages are limited to general damages and past expenses. General damages [30] The plaintiff’s general damages are regulated by the CLA. I adopt the approach of McMeekin J helpfully summarised in Munzer v Johnston & Anor [2008] QSC 162, [5]-[14] and Allwood v Wilson & Anor [2011] QSC 180 [19]-[24]. [31] The only assessable injury is the lower back injury and given that I accept the evidence of Dr Morgan in preference to Dr King, the lower back injury therefore falls to be assessed within item 94 of the CLR – “minor thoracic or lumbar spine injury with no significant clinical findings, fractures, documented neurological impairment, significant loss of motion segment integrity or other objective signs of impairment relating to the injury”. In those circumstances the appropriate assessment is an ISV at the top of the range of 0-4, and I assess the ISV at 4 yielding general damages of $6,320. Past and future loss of earning capacity [32] The plaintiff was at the relevant time a full-time homemaker and mother of seven children, and had been out of the full-time workforce for many years, with her last formal employment and earnings being in 2011 when she performed some part-time cleaning work.35 There is evidence of three invoices issued across 2021 and 2022 for the plaintiff’s completion of work for her brother-in-law in which she assisted him with upholstery jobs36 and the installation and repair of flyscreens in camper trailers.37 [33] Although the plaintiff’s pleadings, drafted by her former solicitors (presumably on instructions) asserted that she “planned to return to paid employment by 2022 when the youngest child started school”38 and that “but for the accident she would be employed on a part-time basis and potentially a full-time basis earning not less than $800 per week”,39 the evidence before the court failed to substantiate those pleadings. 35 Exhibit 12 – Bank statements of the plaintiff. 36 Exhibit 7 – Invoices to Vladmir Sevostjanov. 37 Exhibit 7 – Invoices to Vladmir Sevostjanov; T2-8 ll 30-31. 38 Statement of claim, [8(c)]. 39 Statement of claim, [8(g)]. -- 11 of 20 -- 11 The plaintiff gave evidence that her former solicitors got the year wrong and it should have been 2021.40 The plaintiff told Dr King in May 2022 that her “intention was to work as a seamstress or upholsterer prior to her injuries. She reports that she had been offered employment with a particular upholsterer. She would have preferentially worked full-time hours in that role were it to be provided to her. It was her intention to return to this work when her youngest child turned five years of age. She has not been able to take up any employment as a result of her injuries.”41 In January 2023, the plaintiff advised Ms Fox that she planned to return to the workforce when her youngest child started prep and she said that she had received an unofficial job offer to work as an upholsterer.42 [34] However, in the plaintiff’s statutory declaration she states the following: “29. When David, my youngest was about 3 to 4 years, we were planning to open an upholstery business in our garage. 30. We bought two professional sewing machines, tools and materials. 31. Around this time, whilst completing an upholstery project, I met a man in Yatala who had his own upholstery business and he was interested in my work. 32. He offered a job and I was interested in gaining more experience. 33. We had a verbal agreement that I could work only after my youngest (David) starts school.”43 [35] The plaintiff gave evidence that she understood the difference between working as an employee and running her own business;44 and explained that she wanted to gain some experience prior to opening her business.45 The plaintiff was unable to satisfactorily explain why she had not shared these work plans with medical professionals,46 variously asserting that none of the medical professionals had directly asked whether she wanted to start a business and in any event she was in such a physical and emotional state that she couldn’t even think about work at the time.47 In 40 T1–48 l 30 – T1-49 l 5. 41 Exhibit 2 – Independent medical examination report of Dr LD King, p. 8. 42 Exhibit 3 – Independent allied health examination report of Ms Orla Fox, p. 3[3]. 43 Exhibit 1 – Statutory declaration of Svetlana Barbina [29]-[33]. 44 T1 – 48 ll 10-20. 45 T1 – 49 l 5. 46 T1 – 49 l 30. 47 T1 – 61, l 25. -- 12 of 20 -- 12 a practical sense, it is clear that the plaintiff had not taken any steps towards establishing her own business. There is a bald statement from Mr Shannon Blume that he had had a discussion with the plaintiff who was willing to work for his company as soon as her youngest son went to school.48 In oral evidence Mr Blume said that this conversation (which his statutory declaration indicates was in 2019)49 occurred when a staff member was leaving and the plaintiff was getting some cotton or something off him. Apart from that evidence, there was no other evidence as to proposed remuneration, hours per week to be worked, commencement date and whether the employment would even have been feasible once the plaintiff moved to Esk in September 2020. Put simply, there is a total paucity of evidence on which the court could form any conclusion as to the likelihood of the plaintiff working either as an employed upholsterer, or as a self-employed upholsterer, and there is simply no evidence about what, if any, economic loss would flow as a result of her inability to work. [36] In addition, as the second defendant correctly identifies, the plaintiff had been out of the workforce for many years and effectively had no earnings yardstick against which to assess any past or future loss of earnings; the plaintiff herself led no evidence about her potential earnings as a seamstress; three invoices issued across 2021 and 2022 provide very little, if any assistance;50 the plaintiff was homeschooling her children for a year (it is uncertain whether that was 2021 or 2022);51 and she could not have worked while homeschooling her children.52 [37] It is clear enough that any work that the plaintiff might have undertaken would have been limited to school hours53 and the plaintiff’s youngest child has only just turned nine. The plaintiff is living in a remote location with limited job opportunities,54 has a limited command of English, and has no recent work experience. [38] Any damages awarded for loss of earning capacity are awarded only to the extent that the loss produces or might produce financial loss.55 Past earnings may provide useful 48 Exhibit 16 – Statutory declaration of Shannon Blume. 49 Exhibit 16 – Statutory declaration of Shannon Blume. 50 Exhibit 7 – Invoices to Vladmir Sevostjanov. 51 T1 – 63 l 5. 52 T1 – 63 l 10. 53 T1 – 65 l 10. 54 T1 – 59 l 2. 55 Nichols v Curtis & Anor [2010] QCA 303, [14]. -- 13 of 20 -- 13 guidance about what would have been earned if the worker had not been injured but the enquiry is about the likely course of future events and past events do not always provide certain guidance about the future.56 The assessment involves an estimation of possibilities not proof of probabilities.57 It is unnecessary for a plaintiff to establish that their injury will be productive of financial loss; it is sufficient to prove that there is a chance of that loss occurring.58 [39] As the second defendant correctly asserts, the plaintiff’s case is that although she had been out of work for many years prior to the accident, her claim was, in essence, the loss of an opportunity to re-enter the workforce when her youngest child started school. [40] In Malec v JC Hutton Pty Ltd [1990] HCA 20 the High Court held: “In respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9% or very low – 0.1%. But unless the chance is so low as to be regarded as speculative – say less than 1% - or so high as to be practically certain – say over 99% - the court will take that chance into account in assessing the damages.” [41] In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, [103] it was held that Malec required the application of the following principles: “(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring; (b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred; (c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring; 56 Husher v Husher (1999) 197 CLR 138, [7]-[8]. 57 State of New South Wales v Moss (2000) 54 NSWLR 536, [71]. 58 Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264, [49]. -- 14 of 20 -- 14 (d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities”. [42] It is necessary to identify objective facts when assessing the possibilities.59 [43] Pursuant to CLA s 55, 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, a court may only award damages in the event it is satisfied that the plaintiff has suffered, or will suffer, loss having regard to their age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. [44] In the circumstances, the second defendant submits that if the accident had not occurred, in all likelihood the plaintiff would have continued performing sewing and upholstery work as a hobby and may potentially have earned a sporadic and very limited income from odd jobs here and there as she did on a few occasions in 2021.60 [45] Ms Fox in her report61 identifies the plaintiff’s psychological symptoms as interfering with her ability to concentrate, affecting both her home duties and her prospects of returning to work whether as a cleaner, a seamstress or a cake decorator or an upholsterer. Given the identification of both physical and psychiatric limitations, with the psychiatric injury being non-compensable, the plaintiff has failed, in my view, to identify a compensable basis for her alleged loss. Past loss of income [46] In the circumstances, it is appropriate to make a nominal award for past economic loss fixed at $5,000. Future loss of income [47] I am not persuaded, in the light of the view that I take in respect of the medical evidence, that there is any future loss of earning capacity attributable to the sequelae of the accident. It follows that no award is made for future economic loss. Past and future care and assistance 59 Balnaves v Smith & Anor [2012] QSC 192, [100]. 60 Exhibit 7 – Invoices to Vladmir Sevostjanov. 61 Exhibit 3 – Independent allied health examination and report of Ms Orla Fox, p 8. -- 15 of 20 -- 15 [48] Section 59 of the CLA provides: “59 Damages for gratuitous services provided to an injured person (1) Damages for gratuitous services provided to an injured person are not to be awarded unless – (a) the services are necessary; and (b) the need for the services arises solely out of the injury in relation to which damages are awarded; and (c) the services are provided, or are to be provided— (i) for at least 6 hours per week; and (ii) for at least 6 months. (2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened. (3) In assessing damages for gratuitous services, a court must take into account— (a) any offsetting benefit the service provider obtains through providing the services; and (b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.” [49] Damages cannot be awarded for replacing gratuitous services provided by an injured person to another62 and although such a claim could be made as a separate head of damage pursuant to CLA s 59A, no such claim has been advanced by the plaintiff. [50] In any assessment of the plaintiff’s accident related need for care and assistance, the need must be assessed in the context of the plaintiff as a single, isolated unit.63 In other words, damages for care and assistance is confined to the plaintiff’s individual needs, not the needs of others within the household. 62 CSR v Eddy (2005) 226 CLR 1. 63 Shaw v Menzies & Anor [2011] QCA 197, [77]. -- 16 of 20 -- 16 [51] None of the evidence from either the plaintiff herself nor the other lay witnesses64 identified the amount of time the plaintiff spent on her individual activities of daily living prior to the accident; nor the amount of time after the accident that the plaintiff’s family members spent in providing care and assistance on account of her individual needs, nor did the report of Ms Orla Fox65 provide any further evidentiary assistance in this respect. [52] In particular, Ms Fox did not make enquiries to request copies of the plaintiff’s medical reports from her former solicitors, request copies of statements from care providers and/or permission to speak with any care providers, make enquiries as to whether a care diary had been kept post-accident, nor obtain more fulsome details about the nature of the plaintiff’s dwelling.66 Ms Fox was unaware that the plaintiff had resided since September 2020 in a two bedroom, one bathroom farmhouse, nor had Ms Fox ever performed the exercise of identifying with precision the amount of time the plaintiff spent on her activities of daily living prior to the accident.67 Further, Ms Fox did not identify what daily living activities of the plaintiff were performed for the plaintiff’s benefit as differentiated from the benefit of others within the household.68 In arriving at her figures,69 Ms Fox assumed that the plaintiff had essentially been bedridden on average two days per week since the accident70 but the evidence at trial (from the plaintiff, the lay witnesses,71 Dr King and Dr Morgan) is that at its highest, that the plaintiff would have flare ups around once a month which could result in her resting for between one to three days. [53] Ms Fox did not account for the fact that some of the plaintiff’s children provided assistance with certain household chores prior to the accident.72 64 Samuel Sevostjanov, Aleksey Sevostjanov, Vladmir Sevostjanov, Victoria Sevostjanov and Olga Nehoroshev. 65 Exhibit 3 – Independent allied health examination and report of Ms Orla Fox. 66 T1 – 53 l 3. 67 T1 – 54 l 35; T1 – 54 ll 5 & 20. 68 T1 – 55 l 10 & l 35. 69 Exhibit 3 – Independent allied health examination and report of Ms Orla Fox, Appendix 1. 70 Exhibit 3 – Independent allied health examination and report of Ms Orla Fox, p. 5 & 7. 71 Samuel Sevostjanov, Aleksey Sevostjanov, Vladmir Sevostjanov, Victoria Sevostjanov and Olga Nehoroshev. 72 CLA s 59(2). -- 17 of 20 -- 17 [54] There are further difficulties in Ms Fox’s report,73 including the non-compensable three hours allowed for “transport of others”;74 the plaintiff resumed driving within months of the accident so no allowance should be made for driving; no allowance should be made for gardening where prior to the accident the plaintiff lived in a dwelling without a garden and others in the household mowed the lawn;75 the plaintiff had been living in a much smaller dwelling since September 2020; no account had been taken for the fact that a robot vacuum mop as recommended by Ms Fox would significantly increase the time (one hour per week) allowed for vacuuming and mopping (similarly for the long-handled reacher); and the observation by Ms Fox that the plaintiff’s psychological symptoms “have had an effect on her ability to complete her duties as a stay-at-home mother”.76 [55] Ms Fox accepted that the plaintiff is actually still capable of performing many of the tasks listed in her report77 but they were simply taking longer to perform and the plaintiff was undertaking them at her own pace.78 [56] I consider that most of the claimed care and assistance was not “necessary” for the purpose of CLA s 59(1)(a). Guidance on what is “necessary” is addressed in the Annotated Civil Liability Legislation Queensland, 4th Edition (Lexis Nexis, Butterworths – Douglas, Mullins & Grant, p. 513) which helpfully explains: “Whether the services are necessary will turn on the facts of the particular case. Services may be necessary to avoid another and a potentially greater loss. The test is an objective one, but applied by reference to the circumstances of the injured person. This will require findings that the services can be described as at least reasonable, and in some instances perhaps indispensable, having regard to the needs and circumstances of the person to whom the services are provided.” [footnote omitted] [57] The assessment of what is reasonable requires a comparison of cost against health benefit.79 I accept the submission that the second defendant should not be required 73 Exhibit 3 – Independent allied health examination and report of Ms Orla Fox, Appendix 1. 74 CSR v Eddy (2005) 226 CLR 1. 75 T1 – 24 l 5. 76 Exhibit 3 – Independent allied health examination and report of Ms Orla Fox, p. 8 refers to psychiatric injury which is not compensable. 77 Exhibit 3 – Independent allied health examination and report of Ms Orla Fox, Appendix 1. 78 T1 – 57 l 40. 79 Sharman v Evans (1977) 138 CLR 563, 573. -- 18 of 20 -- 18 to compensate the plaintiff at commercial rates for tasks that she can mostly continue to perform at her own pace where doing so does not put her at risk of further injury. [58] As the second defendant correctly identifies, the plaintiff has provided no evidence in respect of applicable commercial care rates, which are not a matter about which the court can take judicial notice. [59] In the circumstances, I conclude that the threshold requirement of CLA s 59 has not been met, and no award can or should be made for past or future care and assistance. Past special damages [60] The plaintiff’s statement of claim identifies past special damages for pharmaceutical, medical and travelling expenses at $2,284.4580 but no evidence was led by the plaintiff at trial as to the expenses that she incurred. [61] From Dr King’s report,81 it appears that the plaintiff has had little treatment but has been taking analgesics. I make a modest global allowance on account of sporadic medical attendances and analgesics and award the plaintiff $1,500 inclusive of interest for past expenses. Future special damages [62] Dr King did not recommend any surgery in the short or long term.82 [63] There is no evidence that the plaintiff is considering participating the structured rehabilitation programme recommended by Dr King.83 Accordingly, I accept the second defendant’s submission that a modest global award is warranted on account of future analgesics. In that respect, I allow $2,500. Summary [64] The plaintiff’s damages are summarised as follows: Head of Damage Amount General damages $6,320 80 Statement of claim, [8(b)]. 81 Exhibit 2 – Independent medical examination report of Dr LD King, p. 3. 82 Exhibit 2 – Independent medical examination report of Dr LD King, p. 7. 83 Exhibit 2 – Independent medical examination report of Dr LD King, p. 7. -- 19 of 20 -- 19 Past economic loss (including interest) $5,000 Future economic loss $0 Past care and assistance $0 Future care and assistance $0 Past specials (including interest) $1,500 Future specials $2,500 TOTAL: $15,320 Order 1. I order that the defendants pay the plaintiff the sum of $15,320 damages in respect of the motor vehicle collision occurring on 3 June 2020. -- 20 of 20 --