Amos v Miki Stowers t/as Essy Tree Lopping Services [2023] QDC 127

DISTRICT COURT OF QUEENSLAND CITATION: Amos v Miki Stowers t/as Essy Tree Lopping Services [2023] QDC 127 PARTIES: CAROLYN DAWN AMOS (plaintiff) v MIKI STOWERS t/as ESSY TREE LOPPING SERVICES (defendant) FILE NO: 3809 of 2018 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 29 June 2023 DELIVERED AT: Brisbane HEARING DATE: 12 April 2023 JUDGE: Clare SC DCJ ORDER: 1. Judgment for the plaintiff against the defendant in the sum of $465,702.15. 2. The defendant is to pay the plaintiff’s costs of the proceedings on the standard basis. CATCHWORDS: DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNING CAPACITY – where the claim was uncontested - where the plaintiff had been out of paid employment for 5 years up to the claim injury - the plaintiff’s likely employment had she not been injured – whether the plaintiff has suffered a loss of earning capacity - where a claim is made assuming part time employment in a care support worker role, resuming after unrelated cancer treatment is concluded, until the age of 67 – DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GRATUITOUS CARE – whether the plaintiff satisfies the pre-conditions for awards for the provision of gratuitous care. LEGISLATION: Civil Liability Act 2003 (Qld) ss 55, 59, 60 Civil Liability Regulation 2014 (Qld) Schedules 4, 7 U -- 1 of 9 -- 2 Uniform Civil Procedure Rules 1999 (Qld) r 380 CASES: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158 Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 COUNSEL: Mr J. F. Morris for the plaintiff No appearance by the defendant SOLICITORS: Southern Gold Coast Lawyers for the plaintiff Introduction [1] The plaintiff was injured in her yard when struck by a branch lopped from the tree next door. It happened as she complied with the request of the tree lopper to unlock her gate. Two years later she commenced a claim for damages. The following year she obtained judgment by default, with damages to be assessed. That was four and a half years ago. There were multiple hearings for orders and directions before the trial. The defendant has never entered an appearance. He elected not to participate in the proceedings. [2] The plaintiff claimed damages in accordance with the statement of loss and damage. The trial proceeded by way of affidavits. There is sufficient evidence for an amount to be calculated. [3] It remains however for the court to make its own assessment of the evidence provided. The witnesses were present and available for cross examination. They were not required. The evidence was not contradicted. I note substantial disclosures against interest, notwithstanding the absence of a contradictor. Such frankness enhances the plaintiff’s overall credibility. The evidence [4] The following was unchallenged. [5] On 26 October 2015, the falling branch whipped the back of Ms Amos’s right leg, propelling her forward. Her outstretched right arm absorbed the weight of her fall. She felt immediate pain on her right side; in her leg, wrist, forearm and shoulder. The -- 2 of 9 -- 2 pain worsened as bruising developed and did not settle. She sought treatment from general practitioners, an orthopaedic surgeon and physiotherapist. She received hydrocortisone and local anaesthetic injections, as well as oral painkillers (both prescribed and over the counter). The pain in both leg and arm and a restricted range of movement have persisted, despite the treatments. [6] The condition was aggravated by standing and certain movements. Ms Amos was unable to tolerate more physical domestic chores and abandoned certain recreational activities. Her lifestyle became sedentary and she gained weight. [7] Substantial aspects of Ms Amos’s evidence are supported and expanded by the evidence of her daughter, her sister and Dr Cleaver. [8] In February 2020 Ms Amos attempted to return to the workforce. By March she had secured a position for 30 hours per week. The work aggravated her leg and shoulder injuries and the pain caused by 30 hours was beyond her coping capacity. She worked reduced hours until June 2022 when she fell victim to lung cancer. She has fairly disclosed the disease as a subsequent intervening event. The medical evidence [9] Dr Cleaver, the orthopaedic surgeon, provided a report in 2017, and an updated one in 2021. The first report reviewed radiology reports and other medical records and noted substantial disruption of Ms Amos’s day to day life, including sleep disturbance and a list of activities that either aggravated the injury or were otherwise made physically difficult to perform. She had a palpable hard lump over the insertion of the hamstring tendons behind the right knee and an associated reduction in power flexion of the knee, right rotator cuff dysfunction with reduced abduction, forward flexion, external rotation and internal rotation, restricted range of movement of the right elbow and swelling of the right common flexor muscle mass. [10] In 2017 Dr Cleaver diagnosed a soft tissue injury to the right popliteal fossa causing chronic inflammation of the insertion of the hamstring tendons and a soft tissue injury of the right upper limb causing aggravation of right subacromial bursitis with impingement and an injury to the right common extensor origin. He concluded that Ms Amos suffered an injury to the right shoulder comprising the aggravation of some underlying bursitis, resulting in a 9% upper limb impairment for which 5% resulted -- 3 of 9 -- 3 from the incident the subject of the claim. In his opinion the total accident upper limb impairment was 9%, comprising a separate 5% whole person impairment. In Dr Cleaver’s opinion the right popliteal fossa injury gave rise to a separate 5% whole person impairment. [11] In the 2021 supplementary report Dr Cleaver outlined subsequent treatments, the continued reliance on painkillers and ongoing disability. The diagnosis for the popliteal fossa and the right arm was reaffirmed. The prognosis remained extremely guarded given the symptoms remained chronic. There was no hope of a spontaneous resolution. The opinion offered a person impairment rating of 8% comprising a de novo injury to the right elbow (1% upper limb impairment); the injury to the right shoulder (7% upper limb impairment); a total accident related upper limb impairment of 8% comprising a 4% whole person impairment; and a soft tissue injury to the right popliteal fossa causing chronic inflammation of the insertion of the hamstring tendons, giving rise to a separate 4% whole person impairment. Damages [12] As the plaintiff, Ms Amos bore the onus of establishing her case on a prima facie basis. She has clearly done so. She was entitled to the full damages that flow from the prima facie case, subject to the evidence of some intervening or other matter which would reduce full damages.1 [13] The Civil Liability Act 2003 (Qld) (the Act) and Civil Liability Regulations 2014 (Qld) (the Regulations) apply in conjunction with the common law principles. General damages [14] In assessing an Injury Scale Value (‘ISV’) for multiple injuries, the court must consider the range of ISVs for the dominant injury. The court is then required to assess the ISV for the dominant injury as being higher than if it were an assessment for the dominant injury alone. I accept the evidence of Ms Amos and the opinion of Dr Cleaver. The dominant injury is the injury to the plaintiff’s right shoulder. Applying the regulation, it falls within Item 98, Moderate Shoulder Injury. In my assessment it has an ISV 8. Schedule 7 of the Regulation produces a figure of $12,330.00. 1 Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164. -- 4 of 9 -- 4 Economic loss [15] Ms Amos was not working at the time of the incident. Nonetheless she claims substantial damages for the loss of past income she would likely have earned and income she would have earned in the future. [16] When considering events which may or may not have occurred, and future events, the court must consider the degree or probability as to what may or may not have occurred and adjust the award of damages to reflect the degree of probability.2 Past economic loss [17] Ms Amos was a single mother. She had permanent part time work as a care provider in 2011, while her youngest child was still at home. Unfortunately, she had suffered a workplace injury and underwent back surgery in 2012. Rehabilitation was lengthy and complicated by mental health problems. [18] By 2015, Ms Amos was feeling better, all the children had left school and she needed more money. She enrolled in a series of courses to improve her employment qualifications, including certificates in technology, home and community care and first aid. I accept her evidence that she had intended to gain employment for 30 hours each week and planned to start looking for it in May 2016. As a result of the injury, she was unable to attempt a return to work until February 2020. The objective of 30 hours per week proved beyond her post injury capacity. The effort substantially aggravated her shoulder injury and caused her injured knee to swell. It was Dr Cleaver’s opinion she should limit the types of physical activity and not work more than 15 hours per week. She managed to work those hours, until lung cancer forced her resignation. I am satisfied that the claim related injuries reduced her capacity for employment to 15 hours. [19] The best evidence of what Ms Amos could have earned, but for the present injury, is provided by the evidence of what she did earn when she attempted to work for 30 hours per week in March 2020. The average net earnings per week for that brief period of 30 hour weeks was $983.30. Allowing 10% for contingencies, the amount is reduced to $884.97. 2 Malec v Hutton Pty Ltd (1990) 169 CLR 638. -- 5 of 9 -- 5 [20] With some allowance made for the likelihood of a delay in securing employment, the relevant period for past economic loss is 303.5 weeks.3 303.5 times the best estimate of $884.97 produces a likely net income of $268,588.40. As a result of the incident related injury, the income Ms Amos actually earned for that period was $80,665.00. It follows she suffered a loss of $187,923.40. No countervailing argument has been put. Future economic loss [21] It was for Ms Amos to establish a prima facie case for potential loss of future income as a result of decreased earning capacity. The court must consider the probabilities. [22] From June 2022 Ms Amos ceased work as a consequence of lung cancer. She does not intend to return to work until the completion of the 2 years immunotherapy program (September 2024). There is no claim for that period for which she may not have been working even if the tree lopping injury had not happened. She is however in need of more financial security and intends to resume employment after her cancer treatment. [23] The evidence is that Ms Amos’ treatment is termed palliative in the sense that it is not a cure, but it is designed to stop the spread of the cancer and reduce the size of carcinoma to extend Ms Amos’s life and provide symptomatic relief. Her doctor has advised that if she continues to feel well, she could return to work after immunotherapy. The treatment is going well, she is feeling good and her disease is stable. At the same time there are the unknown variables like a deterioration in her condition, the need for further treatment, or a shortened life expectancy. [24] There is an unchallenged prima facie case for some future earning capacity notwithstanding those matters. It cannot be said there would not be a loss of income capacity after September 2024. As for the assessment of probabilities I take a broad brush approach and apply a 50% discount to Ms Amos’s claim. [25] For reasons stated earlier, her claim that the injuries caused by the respondent’s negligence reduced her capacity for employment by half to 15 hours is made out. 3 Calculated from 20 June 2016 (likely date for resumption of employment) until she was physically impaired by the cancer (15 April 2022). -- 6 of 9 -- 6 Using her average earnings for a 30-hour week of $983.30, the loss would be $491.65 per week. There is nine years until Ms Amos reaches the retirement age of 67. However, the future loss would run from September 2024 until Ms Amos’s retirement age, a period of 7.75 years. Adjusting for this on the 5% tables attracts multiplier 313.25,4 to comprise a loss of $154,009.36. [26] Applying the 50% discount provides future economic loss of $77,004.68. Superannuation entitlements (past and future) [27] Ms Amos is entitled to the loss of superannuation entitlements she would otherwise have earned pursuant to the Superannuation Guarantee (Administration Act) 1991 (Cth). [28] The rate of 9.5% applies to past lost income, establishing a loss of $17,852.72. [29] The rate of 11% may be applied for future loss.5 That calculates to $8,470.51. Past special damages [30] Ms Amos is entitled to be reimbursed for any out of pocket expenses she has incurred and provided for in respect of liabilities to which she is now exposed. The statement of loss and damage, supported by the affidavit of Ms Amos, itemises out of pocket pharmaceutical expenses, past travel expenses, and a liability to refund Medicare on the award of damages. I allow the full amount of $3,275.02. Future special damages [31] Provision should be made for likely out of pocket expenses in the future. [32] I accept Ms Amos’s evidence about her consumption of Voltaren and Panadol for relief from pain of the claim injury. Calculated in accordance with the 5% multiplier tables the appropriate amount comes to $4,050.00 in future costs. 4 Multiplier 305 is reached by taking into account the 1.5 years from now to September 2024 where Ms Amos is unable to work. 5 Heywood v Commercial Electrical Pty Ltd [2013] QCA 270. -- 7 of 9 -- 7 Past gratuitous care [33] An award under this heading is subject to the requirements of s 59 of the Act. Relevantly only those services which are necessary, and only if the need for them arises solely out of the claim injury, are relevant. [34] The claim is comfortably supported by affidavits from Ms Amos and those who have cared for her, Ms Russell and Ms Burke. I accept the various services claimed were required due to the injury, although the times allocated for some aspects of domestic work and food preparation do seem longer than one might normally expect. In addition, some of the household work was done by Ms Amos’s able bodied adult daughter, after she came to live in the same house. For some of those services the daughter received an “offsetting benefit” at least. In fact, aspects of the maintenance of the household by that stage were needed not only by Ms Amos, but also her daughter. It follows that Ms Amos’s incapacity could not be the only reason those services were needed. Even after appropriate adjustments to the claim however, the threshold periods of time in s 59(1)(c) remain satisfied. [35] A rate of $35 per hour is claimed for a total of $147,945.00 in the statement of loss and damage. Mr Morris acknowledges that a reduction of 25% for contingencies would be appropriate. That would amount to $110,958.75. Factoring in the aforementioned deficiencies as best I can, I award $95,000.00. Future paid care [36] Dr Cleaver recommends two hours of domestic assistance as necessary in the future. That amount is claimed at the commercial rate of $52.73 an hour, with a loss reduction of 30% for a total of $59,795.82. I am satisfied that is an appropriate amount. -- 8 of 9 -- 8 Summary of damages award Head of damage Award ($) General damages 12,330.00 Past economic loss 187,923.40 Future economic loss 77,004.68 Past loss of superannuation 17,852.72 Future loss of superannuation 8,470.51 Past special damages 3,275.02 Future special damages 4,050.00 Past gratuitous care and assistance 95,000.00 Future paid care 59,795.82 Total 465,702.15 Costs [37] The plaintiff has strived to minimise the costs of proceedings. The defendant is to pay Ms Amos’s costs on a standard basis in these proceedings. Orders [38] Judgment for the plaintiff against the defendant is in the sum of $498,380.40 and the defendant is to pay the plaintiff’s costs in the proceedings. -- 9 of 9 --