Baldock-Davis v Popham & Anor [2023] QSC 24

SUPREME COURT OF QUEENSLAND CITATION: Baldock-Davis v Popham & Anor [2023] QSC 24 PARTIES: MEAH CRYSTAL BALDOCK-DAVIS (plaintiff) v ADRIAN POPHAM (first defendant) AAI LIMITED ABN 48 005 297 807 (second defendant) FILE NO/S: BS No 5655 of 2021 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 23 February 2023 DELIVERED AT: Brisbane HEARING DATE: 14 December 2022; 15 December 2022; 16 December 2022 JUDGE: Cooper J ORDERS: 1. Judgment for the plaintiff in the sum of $40,635.44. 2. The second defendant pay the plaintiff’s costs up to and including 23 March 2021 to be assessed in accordance with the Motor Accident Insurance Regulation 2018 (Qld). 3. The plaintiff pay the second defendant’s costs of and incidental to the proceeding on and from 24 March 2021 to be assessed on the standard basis if not agreed. 4. Execution of the judgment for the plaintiff be stayed until the costs to which the second defendant is entitled under Order 3 have been assessed or otherwise agreed. CATCHWORDS: DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – GENERALLY – where the plaintiff suffered personal injuries from being struck by a motor vehicle driven by the first defendant – where the plaintiff was aged 20 at the date of sustaining the injuries – where the defendants have admitted liability but defend the claim for damages in the amount sought by the plaintiff – whether the injuries impacted the plaintiff’s past or future earning capacity -- 1 of 24 -- 2 Civil Liability Act 2003 (Qld), s 51, s 59, s 60, s 61, s 62 Civil Liability Regulation 2014 (Qld), reg 7, Schedule 3, Schedule 4, Schedule 7 Bell v Mastermyne Pty Ltd [2008] QSC 331, considered Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied Fox v Wood (1981) 148 CLR 438; [1981] HCA 41, applied Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638, considered Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5, applied Ryan v Bunnings Group Ltd [2020] ACTSC 353, cited Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 5) [2019] QSC 210, cited COUNSEL: M Smith for the plaintiff R C Morton with E J Williams for the defendants SOLICITORS: Maurice Blackburn Lawyers for the plaintiff Barry Nilsson for the defendants [1] Ms Baldock-Davis suffered personal injuries on 4 July 2019 (accident injuries) when she was struck by a vehicle driven by the first defendant. In this proceeding she claims damages arising from those injuries. Ms Baldock-Davis was born on 20 December 1998. She was aged 20 at the date of the accident and 23 at the date of trial. [2] The defendants admitted liability but defended the claim for damages in the amount sought by Ms Baldock-Davis on the basis that her accident injuries were minor and transitory in nature and that by 1 June 2021, when the defence was filed, she had fully recovered. [3] In assessing the quantum of damages to which Ms Baldock-Davis is entitled, the significant issues addressed during the trial were: (a) the credibility and reliability of the evidence given by Ms Baldock-Davis; (b) the significance of an injury which Ms Baldock-Davis suffered to her right knee in May 2018, prior to the accident; (c) the extent to which Ms Baldock-Davis has recovered from her accident injuries; (d) the impact the accident injuries had upon Ms Baldock-Davis’ earning capacity. The accident [4] At about 1 pm on 4 July 2019, Ms Baldock-Davis was walking along Sunshine Boulevard in Broadbeach Waters towards Pacific Fair Shopping Centre. At that time, a hatchback was proceeding along Sunshine Boulevard in the area where Ms Baldock-Davis was walking. The first defendant drove his vehicle out of Bordeaux Parade and onto Sunshine Boulevard where it collided with the hatchback. -- 2 of 24 -- 3 [5] The hatchback was pushed into the path of Ms Baldock-Davis and hit her from behind. Ms Baldock-Davis was flipped onto the bonnet and windscreen. She then fell off the car. A wall which was damaged in the collision then fell on her when she was on the ground. People came to her assistance and lifted the wall off her. She lay on the footpath for approximately 40 minutes before she was transferred by ambulance to hospital. She remained in hospital for four days. The accident injuries [6] When she commenced this proceeding, Ms Baldock-Davis pleaded (and the defendants subsequently admitted) that she suffered the following injuries from the accident: (a) a cervical spine injury; (b) a lumbar spine injury; (c) three fractured ribs; (d) multiple pelvic contusions; (e) pneumothorax; (f) an injury to her left foot / toe; and (g) surgical scarring. [7] At the commencement of the trial, I granted leave to Ms Baldock-Davis to amend her statement of claim. By those amendments, Ms Baldock-Davis pleaded: (a) her cervical spine injury included an undisplaced fracture of C7; (b) her lumbar spine injury included an L3 left transverse process avulsion fracture which was significantly displaced and an L4 avulsion fracture; (c) in the accident she also suffered a thoracic spine injury including a T2 fracture. [8] Those amendments arose from a discussion between Ms Baldock-Davis’ legal representatives and Dr Radovanovic (the orthopaedic surgeon called by Ms Baldock- Davis) which occurred on the eve of the trial.1 [9] As to the lumber spine injury, Dr Radovanovic and Dr Pincus (the orthopaedic surgeon called by the defendants) agreed that Ms Baldock-Davis suffered avulsion fractures of the transverse processes at L3 and L4. They also agreed these fractures fulfilled the criteria for a DRE Category II injury to the lumbar spine with 5% whole person impairment. [10] The defendants submitted that there was insufficient evidence to prove those fractures were caused by the accident. An objection to evidence given by Dr Radovanovic2 and Dr Campbell3 (the neurosurgeon called by Ms Baldock-Davis) in general terms that they considered those fractures to have been caused by the accident was upheld 1 Exhibit 1. 2 Exhibit 33. 3 Exhibit 32. -- 3 of 24 -- 4 as not disclosing the reasoning relied upon to express such an opinion.4 However, Dr Radovanovic gave evidence under cross-examination that this form of fracture would generally be the result of a reasonable level of trauma.5 The trauma involved in the accident described above would, in my view, be consistent with the fractures at L3 and L4 having been caused by the accident. There is no evidence of any other trauma to Ms Baldock-Davis’ spine which might otherwise explain the existence of those fractures, or the defendants’ earlier admission that Ms Baldock-Davis had suffered some form of lumbar spine injury from the accident. In those circumstances, I infer that the avulsion fractures of the transverse processes at L3 and L4 were caused by the accident. [11] As to the cervical spine injury and the thoracic spine injury, records held by the Gold Coast University Hospital, which were tendered by agreement,6 included copies of: (a) a report by an unidentified radiologist concerning a magnetic resonance imaging scan performed on Ms Baldock-Davis at the hospital on 4 July 2019 which stated: “Small foci of marrow oedema along the superior aspect of the C7, T1 and T2 vertebral bodies suggest microtrabecular injury”;7 (b) hospital progress notes prepared on 5 July 20198 and a letter of referral from the hospital’s neurosurgical clinic to Ms Baldock-Davis’ general practitioner9 which both recorded the spinal injuries suffered by Ms Baldock-Davis as including: “Microtrabecular injury to C7/T1 and T2 vertebral body”. [12] Dr Radovanovic referred to this diagnosis of “microtrabecular injury” to the C7, T1 and T2 vertebral bodies in his first report10 but did not address it separately from other aspects of the cervical spine injuries suffered by Ms Baldock-Davis. Dr Radovanovic subsequently referred to: (a) an undisplaced fracture of C7 and a fracture of T2 in a discussion with the legal representatives of Ms Baldock-Davis on 13 December 2022, the day prior to the start of the trial;11 and (b) an undisplaced microtrabecular fracture of each of C7, T1 and T2 in a discussion with the legal representatives of Ms Baldock-Davis on 14 December 2022, the first day of the trial.12 [13] During his cross-examination, Dr Radovanovic explained that his reference to microtrabecular fractures was another way of referring to the microtrabeular injuries identified in the hospital records. He stated that these are injuries to the cortical structure of the vertebrae. Such injuries were once referred to as bone bruising.13 4 Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 5) [2019] QSC 210 at [52]. 5 Transcript 2-68:34-42. 6 Exhibit 5. 7 Exhibit 5 at pages 138 and 139 of 426 (page 364 of the resolution bundle). 8 Exhibit 5 at page 23 of 426 (page 257 of the resolution bundle). 9 Exhibit 5 at page 6 of 426 (page 241 of the resolution bundle). 10 Exhibit 18 (page 13 of the resolution bundle). 11 Exhibit 1. 12 Exhibit 33. 13 Transcript 2-66:24-32. -- 4 of 24 -- 5 [14] In his oral evidence, Dr Pincus expressed the view that the changes in the anterior vertebral bodies of C7, T1 and T2 were not microtrabecular fractures.14 [15] Given the late stage at which Dr Radovanovic identified the microtrabecular injuries as “fractures” and the contradictory evidence of Dr Pincus, I have reservations about accepting the evidence of Dr Radovanovic on this issue. [16] In the end I have not found it necessary to decide the question whether Ms Baldock- Davis suffered microtrabecular fracturing or some other form of microtrabecular injury to the C7, T1 and T2 vertebral bodies from the accident (as distinct from an unparticularised cervical spine injury). That is because, in final submissions,15 Ms Baldock-Davis advanced her case on the basis of the injuries referred to in paragraphs [6] and [10] above and did not address the controversy concerning microtrabecular fracturing or injury to C7, T1 and T2. Resolving the issue one way or the other would not alter my assessment of damages. Treatment of the accident injuries [17] While she was in hospital, Ms Baldock-Davis underwent an operation to address the fracture in her little toe on her left foot. When she was discharged from hospital she was required to wear a moon boot and a neck brace. Her evidence at trial was that she wore the neck brace for about a month and the moon boot for about two months.16 She also used crutches on and off when she found it necessary for about two weeks to a month.17 [18] On 25 July 2019, Ms Baldock-Davis attended the neurosurgical clinic at the Gold Coast University Hospital. The letter of referral prepared after that visit (referred to in [11](b) above) indicates the period Ms Baldock-Davis wore the neck brace was somewhat shorter than she recalled when giving her evidence: a period of approximately two and a half weeks until 21 July 2019. That letter recorded Ms Baldock-Davis as denying any neck pain, nerve parathesia, or numbness or weakness in her arms. It also recorded Ms Baldock-Davis as denying having experienced any headaches. On assessment, Ms Baldock-Davis was found to have a full range of motion in her cervical spine. The neurosurgical clinic discharged Ms Baldock-Davis to the care of her general practitioner.18 [19] In addition to periodic appointments with her general practitioner, Ms Baldock-Davis also received treatment by a physiotherapist. The records of the general practitioner and the physiotherapist were tendered by agreement. I accept the submission of the defendants that those records evidence a gradual improvement in Ms Baldock-Davis’ injuries throughout the second half of 2019. [20] The following entries in the records of the physiotherapist describe that improvement: (a) on her initial attendance on 19 August 2019,19 Ms Baldock-Davis described lateral right thigh pain since the accident. She also described constant pain in 14 Transcript 2-78:38-44 and T2-79:34 to T2-80:34. 15 Court file number 28, paragraphs 5 to 7. 16 Transcript 1-20:6-9. 17 Transcript 1-20:11-13. 18 Exhibit 5 at page 6 of 426 (page 241 of the resolution bundle). 19 Exhibit 4 (page 105 of the resolution bundle). -- 5 of 24 -- 6 her lower back which she rated as 3 on a scale out of 10, but which was aggravated by sitting for longer than 30 minutes and bending and would increase to a level of 6 out of 10. Ms Baldock-Davis described intermittent pain in her neck which she rated as 5 out of 10, but with no sharp pains. Ms Baldock-Davis stated that she did not suffer headaches; (b) on 21 August 2019,20 Ms Baldock-Davis described the pain in her lower back and neck as “mild better” and complained of it being “stiff more than pain” but that sitting for 30 minutes caused an ache which she rated as 5 out of 10; (c) on 22 August 2019,21 Ms Baldock-Davis told the physiotherapist that she was sore after the physiotherapy session she had undergone the previous day. She described a dull ache in her neck which she rated as 2 out of 10. She stated that she had no pain in her lower back or in her right thigh at that time, although the right thigh pain would occur when Ms Baldock-Davis put pressure on it; (d) on 27 August 2019,22 Ms Baldock-Davis stated that she was experiencing an ache in her neck which came and went two or three times a day which she rated as 3 out of 10. She described her lower back as settling with some mild pain which she rated as 1 to 2 out of 10. She reported that exercises she was performing at the gym aggravated the pain in her right lateral thigh; (e) on 29 August 2019,23 Ms Baldock-Davis described stiffness in her neck which came and went but stated that she had no pain in her lower back. She stated that she was noticing the right lateral thigh pain less and was not experiencing pain in that area that day; (f) on 3 September 2019,24 Ms Baldock-Davis told the physiotherapist that she had no pain or issues with her lower back and that her neck was pretty good overall, only having become a little achy towards the end of the preceding weekend. She stated that she had experienced mild pain in her right thigh after a busy weekend, but had otherwise experienced no issues with her right thigh; (g) on each of 10, 18 and 25 September 2019,25 Ms Baldock-Davis told the physiotherapist that her lower back was good, with no pain. She stated that she experienced an occasional lateral right thigh twinge with certain activities. After she had performed 40 squats she could feel some ache in her right lateral thigh and some sharp pains; (h) on 2 October 2019,26 Ms Baldock-Davis told the physiotherapist that she had experienced an ache in her back the previous day after bending for a long time at her work (Ms Baldock-Davis had returned to work on light duties in the first half of September 2019). She described the ache the following day as being mild and rated it as 1 to 2 out of 10. Her description of the pain in her right thigh was the same as the previous three attendances; 20 Exhibit 4 (page 104 of the resolution bundle). 21 Exhibit 4 (page 103 of the resolution bundle). 22 Exhibit 4 (page 102 of the resolution bundle). 23 Exhibit 4 (page 101 of the resolution bundle). 24 Exhibit 4 (page 100 of the resolution bundle). 25 Exhibit 4 (pages 96-98 of the resolution bundle). 26 Exhibit 4 (page 95 of the resolution bundle). -- 6 of 24 -- 7 (i) on 4 October 2019,27 Ms Baldock-Davis stated that her injuries were not really hurting at work but that her neck was stiff and her lower back was sore by the end of the previous day at work; (j) on 10 October 2019,28 Ms Baldock-Davis described a mild ache in her back with prolonged flexion, or forward bending, mildly irritating her lower back. She described her neck as pretty good after work and not really sore. She had no pain in her thigh; (k) on 16 October 2019,29 Ms Baldock-Davis told the physiotherapist that her back was aching occasionally but, overall, was not bothering her too much. She stated that she was managing her work duties well, that her neck was stiff but not achy or sore, that she hadn’t really noticed any pain in her thigh over the prior week or so, and that overall she felt that she was getting stronger; (l) on 23 October 2019,30 Ms Baldock-Davis said that she had experienced an occasional niggle in her back the previous Monday when she was at work; (m) on 14 November 2019,31 Ms Baldock-Davis told the physiotherapist that on some days she had no pain in her back, but on other days she experienced some soreness. [21] The physiotherapist discharged Ms Baldock-Davis from treatment on 15 November 2019. On 19 November 2019,32 the physiotherapist wrote to Ms Baldock-Davis’ general practitioner stating, among other things, that on Ms Baldock-Davis’ last attendance: (a) her neck had a good range of movement with no pain; (b) her lumbar spine flexion (bending forward) was good with no pain and a good range of movement; (c) her lumbar spine extension (leaning backwards) was 80% of normal range with some stiffness and a mild pinch; (d) she had reported having some intermittent pain in her lower back but the physiotherapist felt this was more likely to be more from her hip tightness from her gym program than from anything more sinister; (e) she had reported only having a mild lateral right thigh pinching pain once per day which settled very quickly; (f) the physiotherapist had encouraged Ms Baldock-Davis to contact him if she experienced any issues. [22] The improvement in Ms Baldock-Davis’ condition recorded in the notes of the physiotherapist is consistent with the records of Ms Baldock-Davis’ general practitioner. In particular, the general practitioner’s notes record the following: 27 Exhibit 4 (page 94 of the resolution bundle). 28 Exhibit 4 (page 92 of the resolution bundle). 29 Exhibit 4 (page 91 of the resolution bundle). 30 Exhibit 4 (page 90 of the resolution bundle). 31 Exhibit 4 (page 89 of the resolution bundle). 32 Exhibit 6 (page 502 of the resolution bundle). -- 7 of 24 -- 8 (a) on 11 September 2019,33 Ms Baldock-Davis told her general practitioner that her condition was “much improved”, with her having just returned to work on light duties in accordance with the advice of her physiotherapist; (b) on 30 September 2019,34 Ms Baldock-Davis reported that she was recovering from her injuries and slowly getting better. She described experiencing episodes of pain in her right thigh, but that all of her other injuries were slowly improving; (c) on 6 November 2019,35 Ms Baldock-Davis again reported that she was slowly getting better, but was still experiencing some pain in her right thigh. She stated that she was “OK at work”; (d) on 27 November 2019,36 Ms Baldock-Davis sought clearance from the general practitioner for her to return to work at full duties and stated that she was happy to undertake full duties from that point, even though she still got pain in her back and in her leg; (e) on 9 December 2019,37 Ms Baldock-Davis again confirmed that she was getting better although she experienced episodes of pain in her neck, lower back and right lateral thigh. [23] There is no record of Ms Baldock-Davis seeking further treatment from her general practitioner, the physiotherapist or from any other medical professional between December 2019 and her first consultations in May 2020 with the medico-legal experts from whom she obtained reports for the purposes of her personal injuries claim. The pre-existing knee injury [24] In about June 2018, Ms Baldock-Davis injured her right knee playing soccer. She had surgery on that right knee in September 2018 to reconstruct both the anterior cruciate ligament and the posterior cruciate ligament. She subsequently re-injured the same knee upon her return to playing soccer in March 2019 and required two further surgeries to repair the anterior cruciate ligament in March 2020 and in July or August 2020. Credibility and reliability [25] The credibility and reliability of the evidence given by Ms Baldock-Davis is critical in a case such as this where resolution of her claim depends upon an assessment of the degree of incapacity and discomfort caused by the accident injuries. As McMeekin J noted in Bell v Mastermyne Pty Ltd,38 the assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting of, among other things, that person’s symptoms and the impact of those symptoms on the person’s life, including the capacity to maintain employment. Even if not satisfied that a plaintiff has been dishonest in reporting such matters, it is no less important that the court be satisfied as to the reliability of such reporting. 33 Exhibit 6 (page 460 of the resolution bundle). 34 Exhibit 6 (page 460 of the resolution bundle). 35 Exhibit 6 (page 461 of the resolution bundle). 36 Exhibit 6 (page 461 of the resolution bundle). 37 Exhibit 6 (page 461 of the resolution bundle). 38 [2008] QSC 331 at [19]. -- 8 of 24 -- 9 [26] The defendants mounted a strong attack on the credibility and reliability of aspects of Ms Baldock-Davis’ evidence at trial and of her reporting to the experts who provided reports which she relied upon for the purposes of her claim. The essence of the submission was that Ms Baldock-Davis had overstated the nature and extent of her symptoms and the impact of those symptoms upon her capacity to undertake her daily activities. There were several bases for this submission. Differences between reporting of symptoms to medico-legal experts and to treating professionals [27] First, the defendants pointed to a discrepancy between the description of her symptoms given to the medico-legal experts who assessed her for the purpose of preparing a report and the record of her symptoms as described in the notes of her treating physiotherapist and general practitioner discussed in [19] to [22] above. [28] Ms Baldock-Davis first attended upon Dr Campbell, neurosurgeon, on 15 May 2020. In the first report prepared by Dr Campbell,39 Ms Baldock-Davis’ report of her symptoms was recorded as follows: “It is now 11 months since Miss Baldock-Davis was involved in a pedestrian road traffic accident and she continues to complain of: 1. Neck pain/stiffness. 2. Lower back pain/stiffness. 3. Left foot numbness. The neck pain and lower back pain occur daily and the pain rates up to 7/10 on the Visual Analogue Scale. The neck pain extends upwards causing headaches. The lower back pain is associated with right thigh shooting pain. The neck pain and lower back pain are aggravated by prolonged sitting/standing, driving long distances, computer work, watching television and reading. She exercises caution with heavy housework.” [29] On its face, this report describes pain symptoms of greater intensity, experienced on a more frequent basis, than is evidenced by reports of Ms Baldock-Davis’ symptoms recorded in the notes of the physiotherapist discussed above. In closing submissions,40 Ms Baldock-Davis relied upon evidence given by Dr Campbell in cross-examination where he disagreed with the suggestion that the level of symptoms described in the notes of the physiotherapist and general practitioner was inconsistent with what Ms Baldock-Davis had reported when she attended on him. Dr Campbell’s view was that the records of the physiotherapist and general practitioner were consistent with Ms Baldock-Davis having an ongoing neck and back complaint from the time of the accident which was of a level that required physiotherapy on a regular basis.41 39 Exhibit 17, pages 2-3 (pages 2-3 of the resolution bundle). 40 Court file number 29, paragraphs 72 to 74. 41 Transcript 2-60:9-34. -- 9 of 24 -- 10 [30] While that view, expressed in general terms, can be accepted, it does not address the apparent increase in the nature and intensity of symptoms between the end of 2019 and Ms Baldock-Davis’ attendance on Dr Campbell in May 2020. As Dr Campbell eventually accepted,42 the records of the physiotherapist indicate that Ms Baldock- Davis was not suffering pain on a daily basis as she reported to him. Ms Baldock- Davis said in cross-examination that the level of pain she experienced in May 2020 was markedly worse than at the end of 2019, but gave no evidence as to the circumstances in which this occurred.43 Further, there is no record that Ms Baldock- Davis ever complained that she was suffering headaches before she saw Dr Campbell. To the contrary, the documentary evidence includes records of her denying that she experienced headaches when she attended the hospital’s neurosurgical clinic on 25 July 2019,44 and when she attended the physiotherapist on 19 August 2019.45 [31] I find it difficult to accept that, if Ms Baldock-Davis’ symptoms increased in frequency and intensity as suggested by her report to Dr Campbell, she would not have sought further physiotherapy treatment or attended her general practitioner to seek assistance with pain relief. While Ms Baldock-Davis said in cross- examination46 that she thought she had exhausted the amount of physiotherapy treatment which her workers’ compensation insurer would pay for there was no evidence which would support such a belief. In any event, that would not explain her failure to consult with her general practitioner when the pain she claims to have been experiencing became markedly worse. [32] The defendants also identified aspects of Ms Baldock-Davis’ report of her symptoms to Dr Radovanovic, who first examined her on 29 May 2020, which suggest overstatement on her part. Ms Baldock-Davis told Dr Radovanovic that she was in a neck brace for approximately 3 months after the accident.47 That is significantly longer than the period of two and a half weeks recorded in the letter of referral from the neurosurgical clinic or the period of one month which Ms Baldock-Davis referred to in her evidence at trial (see [17] and [18] above). Ms Baldock-Davis said in cross- examination that she could not recall telling Dr Radovanovic that she wore the neck brace for three months, but accepted that such a statement would have been untrue.48 Ms Baldock-Davis also complained to Dr Radovanovic that the neck aches she experienced radiated to her right shoulder.49 There is no evidence that she had previously complained to anyone of any symptoms affecting her right shoulder. Again, when taken to that aspect of Dr Radovanovic’s report in cross-examination, Ms Baldock-Davis could not recall making that statement.50 When she was examined by Mr Ng, the occupational therapist, on 12 June 2020, Ms Baldock-Davis complained that the pain in her neck radiated into both shoulder girdles.51 42 Transcript 2-60:30-33. 43 Transcript 1-61:23-26. 44 Exhibit 5 at page 6 of 426 (page 241 of the resolution bundle). 45 Exhibit 4 (page 105 of the resolution bundle). 46 Transcript 1-61:28-46. 47 Exhibit 18 (page 11 of the resolution bundle). 48 Transcript 1-62:43 to 1-63:16. 49 Exhibit 18 (page 11 of the resolution bundle). 50 Transcript 1-63:18-43. 51 Exhibit 19, paragraph 10 (page 20 of the resolution bundle). -- 10 of 24 -- 11 Differences between reporting of work capacity to medico-legal experts and evidence of actual hours worked [33] Secondly, the defendants identified significant differences between Ms Baldock- Davis’ description of the impact of her symptoms on her capacity to work and evidence from her employer’s pay records of the hours she in fact worked in the period after the accident. [34] Prior to the accident, Ms Baldock-Davis worked at Big W in the role of night filler restocking shelves. The defendants’ counsel prepared a summary of her pay records which was admitted without objection.52 That summary analysed the hours Ms Baldock-Davis worked on a weekly basis in the period of approximately six months before the accident,53 and the period of approximately five months after her return to work following the accident.54 In the six months before the accident Ms Baldock- Davis worked an average of 24.24 hours per week. In that period she worked more than 30 hours in just three of the 25 weeks. In the five months after she returned to work following the accident Ms Baldock-Davis worked an average of 34.20 hours per week. Even after she transitioned from light duties to regular duties from around December 2019, Ms Baldock-Davis worked 30 hours or more in 10 out of 13 weeks. Ms Baldock-Davis did not suggest that either the pay records or the defendants’ summary of them were incorrect.55 I accept those records, and the summary prepared by the defendants’ counsel, accurately set out the hours Ms Baldock-Davis worked in the two periods I have described. That evidence establishes that Ms Baldock-Davis increased the hours she worked at Big W after she returned to work following the accident. [35] This evidence from the pay records differed significantly from Ms Baldock-Davis’ evidence that she reduced her hours at Big W to 20 hours per week in late 2019 because of difficulties she was experiencing with her symptoms after the accident.56 [36] The evidence also differed significantly from Ms Baldock-Davis’ report to Dr Campbell, Dr Radovanovic and Mr Ng about the impact of her symptoms on the hours she worked. As to this, Ms Baldock Davis told: (a) Dr Campbell that after the accident she reduced her work hours to no more than 25 hours per week;57 (b) Dr Radovanovic that after the accident she was having difficulty increasing the hours she worked above 25 hours per week;58 52 Exhibit 12A. 53 From the week ending 23 December 2018, after Ms Baldock-Davis had returned to work following time off after the first surgery on her right knee, to the week ending 30 June 2019 – a period of 25 weeks, excluding two weeks in March 2019 when Ms Baldock-Davis took leave (perhaps as a consequence of reinjuring her right knee when she recommenced playing soccer). 54 From the week ending 22 September 2019, when she returned to work on light duties, to the week ending 1 March 2020 (after which she took further leave because of the second surgery on her right knee). 55 Transcript 3-17:7-19. 56 Transcript 1-28:5-29. 57 Exhibit 17, page 3 “Employment History” (page 3 of the resolution bundle). 58 Exhibit 18, question 10 (page 14 of the resolution bundle). -- 11 of 24 -- 12 (c) Mr Ng that prior to the accident she regularly worked 35 hours per week;59 that after the accident she limited her working hours to her baseline contract hours of 25 hours per week,60 and was unable to maintain the longer working hours that she had completed before the accident.61 [37] The opinions expressed by Dr Campbell, Dr Radovanovic and Mr Ng were based upon the matters reported to them by Ms Baldock-Davis. When the position evidenced by the pay records was put to each of them: (a) Dr Campbell’s evidence was that the increase in the hours Ms Baldock-Davis worked after the accident went against her suggestion that she was struggling at work and that the later reduction in her work hours after her knee operation in March 2020 suggests that reduction was caused by the knee injury, rather than the injuries from the accident;62 (b) Dr Radovanovic accepted that the evidence from the pay records was quite different to what he was told by Ms Baldock-Davis and suggested that she was capable of increasing her work hours after the accident;63 (c) Mr Ng accepted that the pay records revealed an entirely different situation to what Ms Baldock-Davis had described to him and would significantly alter his views on her capacity to continue to perform her role at Big W.64 Ms Baldock-Davis’ return to playing competitive soccer [38] Thirdly, the defendants submit that evidence about Ms Baldock-Davis having recently returned to playing soccer at a competitive level is inconsistent with her evidence as to the nature and severity of her symptoms. [39] On 26 September 2022, Ms Baldock-Davis’ solicitors wrote to the defendants’ solicitors and informed them that Ms Baldock-Davis had returned to playing soccer.65 That letter stated, among other things, that the recently completed season had included approximately 13 games in total and that Ms Baldock-Davis had played in a lower, less competitive division than she had played in before the accident. [40] Ms Baldock-Davis gave evidence that before the accident she had played soccer for several clubs at Division 1 level, but that she stopped playing because of the accident. She commenced playing again for Burleigh Heads in the 2022 season and said she played at Division 2 level. She explained that she returned to playing soccer for social reasons and for mental health reasons. She said that she would be in pain after training and more particularly after a game when she said her back would seize up and she would be bed-ridden and would require a few days to recover.66 59 Exhibit 19, para 4 (page 19 of the resolution bundle). 60 Exhibit 19, para 6 (page 19 of the resolution bundle). 61 Exhibit 19, para 22 (page 23 of the resolution bundle). 62 Transcript 2-56:21 to 2-57:3. 63 Transcript 2-64:7 to 2-65:35. 64 Transcript 2-39:43 to 2-41:41. 65 Exhibit 15. 66 Transcript 1-23:9 to 1-24:35. -- 12 of 24 -- 13 [41] The defendants tendered records which showed that the 2022 season comprised 20 games, of which Ms Baldock-Davis played at least part of 18 games.67 Those records also showed that her team played in Division 1, not Division 2 as Ms Baldock-Davis had said in her evidence. This mistake is hard to explain in circumstances where Ms Baldock-Davis had seen and reacted to a social media post from the Burleigh Heads soccer club dated 6 September 2022 which clearly identified the team as “senior Division 1 women”.68 [42] The defendants also tendered footage taken of three of the soccer games which Ms Baldock-Davis played.69 That footage shows Ms Baldock-Davis playing without any apparent restriction, including running, kicking and heading the ball and throwing the ball with both her arms extended overhead. [43] Having watched that footage, Dr Pincus expressed the view that:70 (a) Ms Baldock-Davis is shown to have a complete and full range of movement in her cervical spine and in her lumbar spine, with no restriction in her range of movement and with no sign of pain or discomfort; (b) Due to the risk of further injury, it is inconceivable that a person with even minor neck problems would head a soccer ball as Ms Baldock-Davis was seen doing; (c) the actions of Ms Baldock-Davis shown in the video are not those of a person who has anything wrong with their cervical spine or their lumbar spine. [44] Ms Johnson, the occupational therapist who examined Ms Baldock-Davis for the defendants, gave evidence in similar terms after viewing the footage.71 [45] Dr Campbell also expressed a similar opinion at the end of his cross-examination. He stated that after viewing the footage of Ms Baldock-Davis playing soccer he had formed the view that she was more able bodied than she had conveyed to him in her reports of her symptoms.72 On the basis of that footage Dr Campbell expressed the opinion that Ms Baldock-Davis suffered no impairment from the injury to either her cervical spine or her lumbar spine.73 [46] Having viewed the footage myself, I agree with the views expressed by Dr Pincus, Dr Campbell and Ms Johnson. [47] While Ms Baldock-Davis relied on the fact that none of the experts saw what condition she was in after the game,74 her evidence about that was diminished by her acknowledgement in cross-examination that until the end of May 2022 she was able 67 Exhibit 16. 68 Exhibit 30. 69 Exhibits 27, 28 and 29. 70 Exhibit 25. 71 Exhibit 26. 72 Transcript 2-60:36-43. 73 Transcript 2-60:47 to 2-61:5. 74 Court file number 29, paragraph 67(a). -- 13 of 24 -- 14 to attend work as a receptionist at Realty Blue75 the day after playing a game of soccer and that later in the season she was able to attend university76 the day after a game.77 Ms Baldock-Davis’ appearance in the witness box [48] Fourthly, the defendants submitted that Ms Baldock-Davis’ evidence that sitting for prolonged periods makes her pain worse78 was difficult to reconcile with her ability to sit for several hours without apparent discomfort while giving her evidence. [49] Ms Baldock-Davis said in cross-examination that she was in pain while giving evidence but sought to address that pain by moving her body position while she was seated.79 I did not observe Ms Baldock-Davis to show any sign of pain or discomfort when she was giving evidence. To the extent she shifted her body position from time to time that appears to have been effective in managing any pain symptoms while she was seated in the witness box. Her apparent ability to manage any pain in that way is at odds with evidence she gave about having to leave her position as receptionist at Realty Blue because sitting down aggravated her pain symptoms.80 Evidence from social media [50] Finally, the defendants relied upon evidence taken from social media sites depicting Ms Baldock-Davis engaging in activities which they submitted are inconsistent with her evidence as to the nature and severity of her symptoms. [51] On 8 September 2019, Ms Baldock-Davis’ brother posted footage of the two of them racing through a jumping castle.81 That video shows Ms Baldock-Davis wrestling with her brother before sliding down a slide on her back and then landing heavily with her brother on the ground. In my view, Ms Baldock-Davis’ willingness and ability to engage in that type of activity two months after the accident suggests that her symptoms were not as significant as she described in her evidence. [52] In late July 2022, Ms Baldock-Davis travelled on a Jetstar flight to Bali for a holiday. While there she went quad biking and rafting.82 Notwithstanding Ms Baldock-Davis’ efforts to minimise what those activities involved,83 my view, again, is that her willingness and ability to engage in them suggests that her symptoms were not as significant as she described in her evidence. [53] Even without having engaged in those more adventurous activities, the duration of the flight to Bali itself is difficult to reconcile with Ms Baldock-Davis’ evidence that sitting for prolonged periods makes her pain worse.84 Dr Campbell’s evidence in 75 Ms Baldock-Davis commenced full time employment as a receptionist at Realty Blue in November 2021 after leaving Big W. 76 Ms Baldock-Davis commenced full time study at Griffith University (Bachelor of Design) in July 2022 after she resigned from Realty Blue. 77 Transcript 2-10:36-43 78 Transcript 1-20:46 to 1-21:17. 79 Transcript 1-96:43 to 1-97:2. 80 Transcript 1-30:16 to 1-31:36. 81 Exhibit 13. 82 Exhibit 14. 83 Transcript 1-88:29-41. 84 Transcript 1-20:46 to 1-21:17. -- 14 of 24 -- 15 cross-examination was that if Ms Baldock-Davis was able to take such a flight unrestricted then she would not have any problems with sitting.85 [54] In October 2022, Ms Baldock-Davis attended an end of season trip to the Sunshine Coast with members of her soccer team. When asked about this trip during her evidence in chief she said that she consumed alcohol before some of the activities and got caught up in the moment. She referred to a “granny pub crawl” where she and her teammates dressed up as grandmas. There was a lot of drinking beforehand and Ms Baldock-Davis fell into a bush during that activity. She said that her back was hurting and she had to sit down on a wheelie walker when she was feeling overwhelmed with the pain.86 [55] The defendants tendered a video compilation of some of those activities taken from Ms Baldock-Davis’ Instagram account.87 That compilation includes footage of Ms Baldock-Davis sitting on her wheelie walker as it rolls backwards into a garden and she falls on her back. At another point, Ms Baldock-Davis can be seen “twerking” while holding the handles of the wheelie walker before placing her right foot onto the walker, placing her hand on her lower back and exclaiming “Oh, my back” before recommencing “twerking” and looking towards the camera while her teammates laugh. [56] In cross-examination Ms Baldock-Davis accepted that she was making a joke when she said “Oh, my back” but she denied the suggestion that, by making that joke, she was indicating to her teammates that she had no serious back problem. She said that it was a joke about how old people struggle to walk properly.88 In the context of her personal injuries claim, and having observed Ms Baldock-Davis’ demeanour in the video, I find it difficult to accept that the joke was unconnected with her claim. [57] It was submitted on behalf of Ms Baldock-Davis that she gave full and frank answers when giving her evidence in chief and in cross-examination.89 Regrettably I take a different view of her response to several matters which raised questions about her credit. [58] Examples where I found Ms Baldock Davis’ explanations unconvincing included: (a) evidence concerning her joke in the video of the end of season soccer trip (see [54] - [56] above); (b) the explanation for her mistake about playing soccer in the Division 2 competition (see [40] - [41] above); 90 (c) her response to the suggestion that racing her brother through the jumping castle only two months after the accident indicated that there wasn’t much wrong with her neck or her back (see [51] above); 91 85 Transcript 2-57:31-38. 86 Transcript 1-25:16 to 1-26:3. 87 Exhibit 31. 88 Transcript 2-16:4-15. 89 Court file number 29, paragraph 10. 90 Transcript 1-90:11 to 1-91:14. 91 Transcript 1-88:4-10. -- 15 of 24 -- 16 (d) her attempt to justify a statement she made to Dr Campbell about being unable to play touch football.92 [59] More generally, Ms Baldock-Davis’ response to questions asked in cross- examination revealed she had a generally poor recollection of what she said to her treating physiotherapist and general practitioner about her symptoms, and whether the symptoms described in the notes taken by those professionals accurately described the symptoms she was experiencing at the time of those attendances.93 That limited recollection extended to what she said to the medico-legal experts who she attended upon for the purpose of obtaining reports for the purposes of her personal injuries claim.94 Conclusion [60] I am mindful of limits on the ability of judges to make credibility findings based on the demeanour of a witness and the desirability of testing credit and reliability by reference to objectively established facts.95 [61] I have significant reservations about the reliability of Ms Baldock-Davis’ evidence as to the nature and severity of her symptoms and the impact of those symptoms on her capacity to undertake activities of daily living when tested against the evidence as to: (a) what Ms Baldock-Davis said to her treating physiotherapist and general practitioner about her symptoms and the impact of those symptoms on her ability to work up to the end of 2019; (b) the hours Ms Baldock-Davis worked at Big W in the period prior to the accident and in the period when she returned to work after the accident; (c) Ms Baldock-Davis’ apparent capacity to undertake activities of daily life, as demonstrated in the social media posts and by her return to playing soccer at a competitive level. [62] The submission that Ms Baldock-Davis should be accepted as someone doing her best to present an honest account to the court,96 does not address the question of the reliability of the evidence she gave. [63] For the reasons set out above I regard Ms Baldock-Davis’ evidence about the nature and severity of her injuries and the ongoing effect of those injuries as unreliable because I have formed the view that she has, whether consciously or not, overstated those effects. I do not accept that Ms Baldock-Davis’ accident injuries restricted her in the manner and to the extent she stated in her evidence. [64] I turn now to the assessment of the damages to which Ms Baldock-Davis is entitled. 92 Transcript 2-11:20 to 2-12:6. 93 Transcript 1-39 to 1-53 contains numerous examples of this. 94 Transcript 1-61 to 1-66. 95 Fox v Percy (2003) 214 CLR 118, 129 at [31]; see also Ryan v Bunnings Group Ltd [2020] ACTSC 353 at [21] – [26]. 96 Court file number 29, paragraph 78. -- 16 of 24 -- 17 General damages [65] Sections 61 and 62 of the Civil Liability Act 2003 (Qld) (CL Act) require that the court assess an Injury Scale Value (ISV) for the injuries suffered by Ms Baldock- Davis from the range of ISVs set out in Sch 4 of the Civil Liability Regulation 2014 (Qld) (CL Reg) in order to determine the level of general damages97 in accordance with the rules set out in Part 2 of Sch 3 of the CL Reg.98 [66] Ms Baldock-Davis suffered multiple injuries. In such a case, it is necessary to determine the dominant injury and determine where in the range of ISVs provided for that injury it should fall. The ISV for the multiple injuries may be assessed as higher in the range of ISVs for the dominant injury than the ISV that would be assessed for the dominant injury only. [67] The parties agreed that general damages in this case fell to be assessed pursuant to Item 92 of the CL Reg, titled “Moderate thoracic or lumbar spine injury – fracture, disc prolapse or nerve root compression or damage”. That item provides for an ISV range of 5 to 15. According to the comments set out within the item as to the appropriate level of ISV: “• An ISV of about 10 will be appropriate if there is a fracture of a vertebral body with up to 25% compression, and ongoing pain. • An ISV at or near the bottom of the range will be appropriate for an uncomplicated fracture of a posterior element of 1 or more of the vertebral segments, for example spinous or transverse processes, without neurological impairment.” [68] Based on the evidence of the orthopaedic surgeons, I consider that the ISV for Ms Baldock-Davis’ lumbar spine injury (being avulsion fractures of the transverse processes at L3 and L4) should be near the bottom of the range provided in Item 92. I would assess that injury alone to have an ISV of 7. [69] To reflect the level of adverse impact of multiple injuries (three fractured ribs and a small pneumothorax;99 multiple pelvic contusions;100 fracture to the left small toe;101 and a cervical spine injury102) I assess the ISV for the multiple injuries as being higher in the range of ISVs in Item 92 than the lumbar spine injury only. Bearing in mind that the effects of multiple injuries commonly overlap, I assess the multiple injuries as having an ISV of 12. 97 As defined in s 51 of the CL Act. 98 See reg 7 of the CL Reg. 99 Item 39.2 in Sch 4 of the CL Reg provides an ISV range of 0 to 4 with the comment that an ISV at or near the top of the range will be appropriate if there is an injury causing a small pneumothorax that does not require intercostal catheter insertion, and from which the injured person will fully recover. 100 Item 128 in Sch 4 of the CL Reg provides an ISV range of 0 to 10 with the comment that an ISV at or near the bottom of the range will be appropriate if there is a soft tissue injury from which the injured person fully recovers. 101 Item 154 in Sch 4 of the CL Reg provides an ISV range of 0 to 3 with the comment that an ISV of 1 will be appropriate if there is a straightforward fracture of 1 or more toes with complete resolution within a short period of time. 102 Item 89 in Sch 4 of the CL Reg provides and ISV range of 0 to 4 with the comment that an ISV at or near the top of the range will be appropriate if the injury, despite improvement, causes headaches and some ongoing pain. -- 17 of 24 -- 18 [70] On that basis, by reference to Table 10 in Sch 7 of the CL Reg, I assess general damages in the amount of $21,510. There can be no interest awarded on these general damages.103 Past economic loss [71] Ms Baldock-Davis was unable to work at Big W for a period of approximately two months after the accident because of her injuries.104 During this period she suffered a loss of earnings, however EML, the workers’ compensation insurer for Big W, paid wages to Ms Baldock Davis in the amount of $5,405.03.105 [72] Ms Baldock-Davis sought to recover the amount of $5,405.03, which must be repaid to EML, as her lost earnings over the period she was unable to work at Big W. [73] The defendants submitted that Ms Baldock-Davis’ lost earnings while she was unable to work at Big W should be calculated based on her net weekly earnings prior to the accident. They submitted those net weekly earnings were $513.80 in the 25 weeks from the end of 2018 until the accident,106 and that Ms Baldock-Davis’ lost earnings over a period of 10 weeks amounted to $5,138.00. [74] Given the relatively small difference between these two figures, I will award the sum of $5,403.03 as lost wages over the period Ms Baldock-Davis was unable to work at Big W. Although this figure is slightly higher than the defendants sought based on net weekly earnings from the period immediately prior to the accident there was evidence that Ms Baldock-Davis could, if she chose, work longer hours than she had been immediately prior to the accident. [75] Ms Baldock-Davis sought a further global amount for past economic loss of approximately $15,000 (for a total global amount of $20,000.00 for past economic loss) on the basis that: (a) there was further work, in the form of additional hours available at Big W, which she did not work because of her injuries;107 (b) she subsequently struggled with the role of receptionist and administrative assistant at Realty Blue (where she worked from 22 November 2021 until 27 May 2022) and ultimately resigned from that position because of her back pain.108 [76] I do not accept Ms Baldock-Davis’ evidence that her injuries from the accident caused her to reduce her hours at Big W. As I have already discussed at [34] above, the evidence from her pay records shows that Ms Baldock-Davis increased the hours she worked at Big W after she returned to work following the accident. I prefer that evidence to the more general evidence given by Ms Baldock-Davis and by Nathan Durrant,109 who worked with Ms Baldock-Davis at Big W, about her working less hours after the accident. 103 See s 60(1)(a) of the CL Act. 104 Exhibit 2, paragraph 5. 105 Exhibit 2, paragraphs 5 and 6. 106 Exhibit 12A. 107 Transcript 1-28:5-29; 1-29:12-41. 108 Transcript 1-30:1 to 1-31:18. 109 Transcript 2-31:41-46; 2-33:22 to 2-34:14. -- 18 of 24 -- 19 [77] Although Ms Baldock-Davis did reduce her hours at Big W after March 2020, I am not satisfied, on the balance of probabilities, that was the result of the injuries she suffered in the accident rather than the surgery she had on her right knee (see [36] - [37] above). [78] As to the period that Ms Baldock-Davis worked at Realty Blue, evidence was given by Ms Rosanne Johnstone and Ms Carol Visser. [79] Ms Johnstone worked in the finance and administration section at Realty Blue for the entire period Ms Baldock-Davis was employed there. Ms Johnstone was in a position to observe Ms Baldock-Davis during a two week period when she trained Ms Baldock-Davis. After that initial two week training period, Ms Johnstone only observed Ms Baldock-Davis intermittently if Ms Johnstone had a reason to go to the area of the office where Ms Baldock-Davis worked or if Ms Baldock-Davis walked past Ms Johnstone’s office. [80] Ms Johnstone said she noticed that Ms Baldock-Davis had a bright and bubbly personality, but that on some days she did not seem her usual self. Ms Johnstone considered that Ms Baldock-Davis performed her duties well but there were times she did not seem comfortable. Ms Johnstone said there were times when Ms Baldock- Davis appeared restless and would move in her chair, rub her neck and get up to walk around. [81] Ms Visser also worked in the finance department at Realty Blue for the period Ms Baldock-Davis worked at the company. She was responsible for maintaining employee records and processing employee leave requests. Ms Visser’s evidence was that Ms Baldock-Davis used all of her paid leave up quickly and so did not have any leave available for the last month of her employment. Ms Baldock-Davis took unpaid leave on a couple of occasions. Ms Visser said that she saw Ms Baldock- Davis leave work early more than 10 times. Although she said she rarely interacted with Ms Baldock-Davis, she noticed that there were times when Ms Baldock-Davis couldn’t sit for a long time. [82] In my view, the evidence of Ms Johnstone and Ms Visser provides only limited support for the submission that Ms Baldock-Davis was unable to continue working at Realty Blue due to pain caused by her accident injuries. [83] Ms Johnstone’s evidence that Ms Baldock-Davis was good at performing her duties suggests that Ms Baldock-Davis was able to manage any pain or discomfort she felt while working at Realty Blue such that it did not interfere with her ability to perform the requirements of her job. That evidence is consistent with information contained in the Realty Blue employment file for Ms Baldock-Davis which was tendered by agreement.110 That file contained an Employment Details Form completed by an unidentified representative of Realty Blue on 24 March 2022 in response to a request by the solicitors for the defendants. The form relevantly recorded:111 (a) Ms Baldock-Davis had informed Realty Blue that she had been in an accident which caused her ongoing back pain; 110 Exhibit 8. 111 Exhibit 8 (pages 658 to 660). -- 19 of 24 -- 20 (b) Ms Baldock-Davis did not have any limitations on the duties she was able to perform while she worked at Realty Blue; (c) the Realty Blue representative who completed the form was happy with Ms Baldock-Davis’ job performance. [84] I am unable to accept Ms Baldock-Davis’ evidence that she resigned from her position at Realty Blue because of her back pain in circumstances where: (a) she was able to recommence playing competitive soccer on 4 April 2022,112 approximately one month before she informed Realty Blue of her decision to resign from her employment;113 (b) in late July 2022, only a short period after she had resigned from Realty Blue,114 she was able to fly to Bali and engage in activities which included quad biking and rafting. [85] The evidence of Dr Pincus,115 Ms Johnson116 and Dr Campbell117 after each had viewed footage of Ms Baldock-Davis playing soccer (that evidence being evidence I accept) was, in effect, that the injuries Ms Baldock-Davis suffered in the accident have not reduced her capacity for employment. [86] In those circumstances, and having regard to the conclusion I have reached on the reliability of Ms Baldock-Davis’ evidence as to the effect of her injuries (see [61] - [63] above), I am not satisfied on the balance of probabilities that Ms Baldock-Davis left Realty Blue because pain caused by the injuries she suffered in the accident meant she was unable to perform that job. I also do not accept Ms Baldock-Davis’ evidence that, after leaving Realty Blue, the hours she was able to work part time as a delivery driver for Uber Eats was restricted by her back pain.118 [87] I am not satisfied that Ms Baldock-Davis has demonstrated any past economic loss beyond lost wages in the amount of $5,403.03 for which she received worker’s compensation. [88] I award a further sum of $540.30 for past superannuation loss. [89] The total amount of past economic loss is $5,943.33. [90] Interest at a rate of 2.00%119 from 4 July 2019 (3.6 years) is $427.91. Future economic loss [91] Prior to the commencement of the trial, Ms Baldock-Davis claimed an amount of no less than $600,000.00 for future economic loss.120 112 Exhibit 16. 113 Exhibit 8 (page 691 of the resolution bundle). 114 Transcript 1-88:12-21. 115 Exhibit 25, paragraph 9. 116 Exhibit 26, paragraph 5. 117 Transcript 2-60:36 to 2-61:5. 118 Transcript 1-31:20-36. 119 The rate being approximately half the rate for 10 year Treasury bonds as at the beginning of the quarter in which this judgment is given: CL Act, s 60. 120 Court file number 24, paragraph 8(e). -- 20 of 24 -- 21 [92] By the time the parties made their closing submissions this aspect of the claim was reduced to an amount of either $160,480.00 or $175,000.00.121 [93] In order to recover any amount under this head of damages Ms Baldock-Davis must establish that two distinct but related requirements are satisfied:122 (a) her earning capacity has in fact been diminished by reason of the accident injuries; and (b) the diminution of her earning capacity is or may be productive of financial loss. [94] It was submitted on behalf of Ms Baldock-Davis that she has suffered an impact on her employment to date, even working in sedentary positions, and that she will continue to be impacted in her future employment, even if that employment is light in nature.123 [95] For the same reasons I set out above in addressing the issue of past economic loss, I do not accept the first part of that submission. I am not satisfied on the evidence that, beyond the period of approximately two months immediately after the accident when she was unable to work at Big W, Ms Baldock-Davis suffered any impact on her past employment because of her accident injuries. [96] As to the impact on her future employment, Ms Baldock-Davis relied on reports provided by Dr Campbell, Dr Radovanovic and Mr Ng.124 The difficulty for Ms Baldock-Davis is that each of those experts formed their opinions based upon Ms Baldock-Davis’ report of the effect of her injuries. For reasons already discussed, I have found that Ms Baldock-Davis overstated that effect. [97] I have already referred to the significant concession made by Dr Campbell after he viewed the video of Ms Baldock-Davis playing soccer (see [45] above). Both Dr Radovanovic125 and Mr Ng126 also made concessions during cross-examination which weakened the opinions set out in their written reports. In light of those concessions, and the conclusion I have reached on the reliability of Ms Baldock- Davis’ evidence as to the effect of her injuries, I prefer the evidence of Dr Pincus and Ms Johnson that the injuries Ms Baldock-Davis suffered in the accident have had no real impact on her capacity for employment in the future (see [85] above). [98] I am not satisfied on the evidence that Ms Baldock-Davis has lost any opportunity for employment because of the effect of her accident injuries. Further, I am not satisfied that there is any real possibility that she will lose such an opportunity in future, whether that be in a receptionist role like her previous position at Realty Blue or in a sedentary role which might become available to her in the event she successfully completes her design degree at university. Ms Baldock-Davis has not established that her earning capacity has in fact been diminished by reason of her accident injuries. Consequently, I make no award of damages for future economic loss. 121 Court file number 29, paragraphs 103 and 116. 122 Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3. 123 Court file number 29, paragraphs 101 and 102. 124 Court file number 29, paragraph 100. 125 Transcript 2-64:2 to 2-65:35. 126 Transcript 2-40:4 to 2-41:41; 2-42:33-43; 2-43:28-38; 2-44:32-37. -- 21 of 24 -- 22 [99] I also note that Ms Baldock-Davis said in evidence that she had stopped attending an acting course after the accident and had experienced difficulty performing acting work as an extra and a stand in due to pain she experienced from her accident injuries.127 [100] Even if, contrary to my finding above, I was satisfied Ms Baldock-Davis established that her earning capacity has been diminished by reason of her accident injuries I do not consider the evidence of her wish to pursue an acting career to be sufficient to establish that there was any real prospect that, if she had not been injured, she would have obtained further acting work so as to engage the principles set out in Malec v JC Hutton Pty Ltd (No 2).128 Any such claim was expressly disavowed in closing submissions in any event.129 Special damages [101] There was agreement130 that special damages should be awarded in the amount of $6,067.89, comprising: (a) EML workers’ compensation expenses in the amount of $4,203.24; (b) Medicare expenses in the amount of $964.65; (c) Pharmaceutical expenses in the amount of $300.00; (d) Travel expenses in the amount of $300.00; (e) Gap medical expenses in the amount of $300.00. [102] Interest on the sum of $900.00 (comprising the last three items) at a rate of 2.00% from 4 July 2019 (3.6 years) is $64.80. Future special damages [103] Ms Baldock-Davis claims future treatment and associated expenses comprising: (a) $2,000.00 for physiotherapy treatment; (b) $10,000.00 for the future purchase of ergonomic office furniture; (c) $5,715.00 for retraining expenses; (d) $1,512.00 for an exercise programme; (e) $5,000.00 for pharmaceutical expenses; (f) $2,000.00 for travel expenses. [104] I am not prepared to allow any amount for the first three items. Both Dr Pincus131 and Ms Johnson132 rejected the suggestion that Ms Baldock-Davis would be required to incur such costs because of her accident injuries. I accept that evidence for the 127 Transcript 1-32:8-38. 128 (1990) 169 CLR 638 at 643. 129 Transcript 3-18:12-21. 130 Court file number 29, paragraph 118; Court file number 28, paragraph 67. 131 Exhibit 25, paragraphs 9, 10 and 13. 132 Transcript 3-8:1-15; 3-8:39 to 3-9:37. -- 22 of 24 -- 23 reasons I have already set out above in assessing the evidence going to the effect of the accident injuries. [105] The fourth item arises from a recommendation in the report provided by Ms Johnson.133 That recommendation was made in November 2021 and was premised upon Ms Baldock-Davis’ report that she reduced her hours at Big W because of fatigue associated with her accident injuries. I have already found that Ms Baldock- Davis failed to establish that she reduced her hours because of the accident injuries (see [34] and [76] above) save for her initial recovery period. Further, Ms Baldock- Davis’ return to playing competitive soccer suggests that there is no longer any need for her to increase her general fitness. [106] I will allow a global amount of $5,000.00 for future pharmaceutical expenses. [107] In circumstances where I have not made any allowance for Ms Baldock-Davis to attend physiotherapy, occupational retraining or a supervised exercise programme I will not allow any amount for travel expenses. Future care and assistance [108] Ms Baldock-Davis claims damages for future care and assistance in the amount of $43,424.00. [109] The defendants submitted that the evidence did not establish the statutory requirement that gratuitous services are to be provided for at least six hours per week and for at least six months.134 [110] It was accepted by Ms Baldock-Davis that this statutory threshold for gratuitous services was not met, but the claim was maintained on the basis that, properly construed, the pleading of the claim for future care and assistance was one for paid care and assistance, not gratuitous services. It was submitted that in circumstances where a future care claim is pleaded, but the threshold for gratuitous services is not made out, by inference it must be paid care.135 That this is the proper construction of the claim seems doubtful to me in circumstances where it is described in Ms Baldock- Davis’ statement of loss and damage as “Future Griffiths v Kerkemeyer”.136 [111] Putting that question to one side, if I accept Ms Baldock-Davis has advanced a claim for paid care and assistance, I am not satisfied that the evidence demonstrates that she is likely to receive such paid care or assistance in the future. [112] Ms Baldock-Davis said that since the accident her mother and her brothers have spent “maybe a couple of hours” each week performing chores which she had performed before the accident, comprising vacuuming and washing dishes. Ms Baldock-Davis said that when she eventually moves out of home she will perform those chores herself or get help from her partner.137 Ms Stacey Austin, Ms Baldock-Davis’ mother, 133 Exhibit 22, page 12 (page 56 of the resolution bundle). 134 See s 59(1)(c) of the CL Act. 135 Court file number 29, paragraph 128. 136 Court file number 6, paragraph 6.2. 137 Transcript 1-34:9-29. -- 23 of 24 -- 24 also gave evidence that other members of the family spend about one hour per week performing chores on behalf of Ms Baldock-Davis.138 [113] Neither Ms Baldock-Davis nor Ms Austin gave evidence that whatever assistance Ms Baldock-Davis presently receives from family members is likely to be replaced in the future with paid care and assistance. [114] In those circumstances I do not allow any amount for future care and assistance. Fox v Wood [115] Ms Baldock-Davis sought the amount of $1,621.51 pursuant to the principles set out in Fox v Wood.139 The defendants raised no challenge to that part of the claim.140 I will allow it in the amount sought. Summary [116] In summary, I have assessed the damages to be paid to Ms Baldock-Davis as follows: General damages $21,510.00 Past economic loss $5,943.33 Interest on past economic loss $427.91 Special damages $6,067.89 Interest on special damages $64.80 Future special damages $5,000.00 Fox v Wood $1,621.51 Orders [117] The orders will be: 1. Judgment for the plaintiff in the sum of $40,635.44. 2. The second defendant pay the plaintiff’s costs up to and including 23 March 2021 to be assessed in accordance with the Motor Accident Insurance Regulation 2018 (Qld). 3. The plaintiff pay the second defendant’s costs of and incidental to the proceeding on and from 24 March 2021 to be assessed on the standard basis if not agreed. 4. Execution of the judgment for the plaintiff be stayed until the costs to which the second defendant is entitled under Order 3 have been assessed or otherwise agreed. 138 Transcript 2-19:18-30. 139 (1981) 148 CLR 438. 140 Transcript 3-18:23-36; 3-20:21. -- 24 of 24 --