Basa v Cartwright & Anor [2015] QDC 27

DISTRICT COURT OF QUEENSLAND CITATION: Basa v Cartwright & Anor [2015] QDC 27 PARTIES: MILUSKA BASA (plaintiff) v MARY DIANNE CARTWRIGHT (DECEASED) (first defendant) AND RACQ INSURANCE LIMITED ACN 009 704 152 (second defendant) FILE NO/S: D2411/13 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 20 February 2015 DELIVERED AT: Brisbane HEARING DATE: 4 & 5 February 2015 JUDGE: Samios DCJ ORDER: 1. Judgment for the plaintiff against the second defendant for the sum of $193,867.67 CATCHWORDS: DAMAGES – ASSESSMENT OF DAMAGES – GENERAL AND SPECIAL DAMAGES – GRIFFITHS V. KERKEMEYER – INTEREST – LOSS OF AMENITIES – MEASURE OF DAMAGES – PERSONAL INJURY – QUANTUM – where the plaintiff commenced an action against the defendants for damages as a result of a motor vehicle accident – where the second defendant admitted liability for the motor vehicle accident – where the only issue at trial was quantum of damages – whether the plaintiff is entitled to the quantum of damages sought in the plaintiff’s claim and statement of claim Legislation Civil Liability Act 2003 (Qld) s 55 and s 59 Civil Liability Regulation 2014 (Qld) s 4 of sch 3, item 93 of sch 4 -- 1 of 33 -- 2 Cases Ballesteros v Chidlow [2006] QCA 323, [41] Griffiths v Kerkemeyer (1977) 139 CLR 161 Land v Dhaliwal & Anor [2012] QSC 360, [98] and [99] Shaw v Menzies & Anor [2011] QCA 197, [53] Reitano v Shearer & Anor [2014] QCA 336, [25] COUNSEL: Mr J Kimmins for the plaintiff Mr K Howe for the defendants SOLICITORS: Shine Lawyers for the plaintiff Quinlan Miller & Treston for the defendants [1] The plaintiff was born on 26 December 1959. She claims against the defendants damages for personal injuries and consequential loss as a result of the negligence of the first defendant. [2] Liability is not in issue. Quantum of damages is in issue. [3] On 7 September 2011 the plaintiff was driving her car along Warrigal Road in Eight Mile Plains and turned left into Warrigal Square shopping centre. [4] The plaintiff pulled into a car parking space in the shopping centre, stopped, placed the transmission in park, applied the hand brake, and then turned off the engine. [5] The plaintiff remained in the driver’s seat whilst reaching for her phone and then called her mother. -- 2 of 33 -- 3 [6] The first defendant was driving a motor vehicle and commenced a forward motioned right turn into the parking space adjacent to the plaintiff and in doing so collided with the driver’s side rear bumper, shunting the plaintiff’s vehicle forward, and then, continued into the space side swiping down the rear driver’s side panel of the plaintiff’s vehicle. [7] The plaintiff claims as a consequence of the collision she suffered soft tissue injuries of the cervical spine, thoracic spine and lumbar spine. She also claims she suffered rib fractures and facet joint trauma. She claims she also suffered sleeping difficulties and headaches. [8] When the plaintiff gave evidence she described the severity of the collision as “powerful”. She said it was sudden and just threw the car forward. Although she did not complete her answer I took her to say it was like a kangaroo type of hop. Photographs are in evidence of the damage to the two vehicles. These were taken by the plaintiff. [9] The plaintiff’s evidence was she spoke to the other driver and a witness spoke to her about the other driver and then she went to the shops and did a little bit of shopping and then went home. [10] Then she went to work. She said after the collision and at work she was shaken and in shock. When she went to work she said she felt tightness in her body all around. She said there was stiffness, tightness. She said when she got to work she was just doing the motions mainly just to get to work, do her job. -- 3 of 33 -- 4 [11] She said the progression of the stiffness and pain over the next day or two following the collision was that she was very tight and demonstrated in the witness box a motion with both hands from behind her back to the front of her chest. She also indicated with her hands from the neck down the shoulders on the right side down to the mid and lower back and around the front as well where the ribs were. She said there was tightness there. She said towards the evening there was still tightness. She said the next day the back ache started to get more noticeable. Referring to her mid back she said she had burning in that area that she noticed when she stood in the kitchen. She said it burnt so much she had to sit down. She said at work she needed heat packs on the right shoulder and down the right part of her back. When leaning back there was a chair with gel and she had to lean back to give her ease on that part of her back, the mid part. There was spasming as well around the mid area. She had a headache so she took medication. She said during the week of the accident they were noticeable. She said they were very intense headaches. She took more medication. She said the spasming was in the mid back to the sides. She said she believed she was managing it at work and at home. However she found it difficult to get to sleep and then not a good night because she was in pain. When asked what happened over the next couple of weeks with the pain and to describe the cause of the pain she said she believes that she was managing it and intermittently during the day she had it. But it progressed to where she knew she had to seek help because this was not something that was going to go away. It got tighter and she could not breathe very well. And the spasms did get worse and so she knew she had to seek help. -- 4 of 33 -- 5 [12] The plaintiff said she asked a work mate for a name of a chiropractor. She was given the name of Dr Manny and she went to see him. The evidence is that the plaintiff saw the chiropractor on 26 September 2011. [13] The plaintiff gave some confusing evidence about when she asked for the name of the chiropractor. It was difficult to understand her evidence. I was unsure whether she got the name of the chiropractor the weekend following the collision or the weekend just before she saw the chiropractor. [14] The notes of the chiropractor are in evidence. In addition there is a form completed by the plaintiff in evidence. In the form completed by the plaintiff where she could have listed the collision that has been left with just a dash. Otherwise her reasons for seeking chiropractic care are “back pain – lower left, spasms, tightness in back, ribs, breathing deep hard.” She also filled in a question as to whether she had previously seen a chiropractor which she answered in the affirmative and then as to “how long” she has written “many years”. When the plaintiff was cross examined she said she had chiropractic care many years ago. The chiropractor’s notes suggests there was left MB pain at T7-12 area. The notes go on to say the condition started 2 days ago and the plaintiff has written it may have been due to sneezing. Nevertheless in the case history there is an entry for “MVA Sept 7th 2011”. [15] When the plaintiff gave evidence she said that she told the chiropractor about her symptoms that got worse on the weekend and what could he do for her. The following day she attended upon Dr Celis, a GP. She said she told Dr Celis about the accident and what happened and how she was feeling and how she was walking now and how -- 5 of 33 -- 6 the pain had really worsened so much that she went to see a chiropractor the day before. She said she came to see Dr Celis for treatment because she could not go on like that. She said she thought she was managing herself but she wanted to find out what is happening. [16] Dr Celis’ notes of the visit on 27 September 2011 contained the following: “Back pain before the weekend. Sudden onset, triggered with forward flexion. Difficulty breathing when pain starts. Seen chiro, able to breathe well now but can feel muscles tensing and causing pain. MVA on 8/9/2011, stationary, was at driver’s seat, hit from behind by another car. Some neck soreness then but not much of back pain. Can’t remember any trigger this time.” [17] After seeing Dr Celis the plaintiff had an x-ray and also attended on a physiotherapist. She also thought she did acupuncture with her brother to help the area in the mid back. She was advised by Dr Celis to stop the exercises. She was advised to get a CT scan. The CT scan showed a fracture. [18] It is accepted in these proceedings that a bone scan later made it conclusive that what was shown on the CT scan and a MRI was just an abnormality and not a fracture. [19] The plaintiff also said that from the latter part of 2011 to the current time intermittently every day and night whether she is doing any activities or not in her mid back area on the right side she can get either a sharp jabbing or like a stabbing or a cutting pain. She said it just burns so much that she has to move. She said if she is sitting or standing like in ques in the post office or shopping centres it will burn so much she has to move. The pain can last a few seconds to hours. She said she had to -- 6 of 33 -- 7 move consistently and constantly to try and relieve it during the day. She finds it very hard to get to sleep at night and she wakes early in the morning. She feels the pain when she wakes up so she gets very minimal sleep. Walking on uneven surfaces or surfaces like the kitchen it will burn so bad that she has to leave, even moving or reaching shelves, going down to pick up things, items or pulling out drawers. She said personal care, every shower is very sore. [20] Regarding her neck she said she wakes up in the morning with a headache every day and with the neck she has to move it. She has to massage it because it is very tight and sore and at work especially on the phone she is massaging it in between and it gets tight and sore and sometimes radiates. It is very tight. The neck is sore. Regarding the frequency of the neck pain she said it is intermittent. However she said it can be there for hours if she does not massage and try and relieve it or move. She said she has taken medication. She even used a TENS machine. She also said Dr O’Callaghan a pain specialist recommended she undergo facet joint injections which she did. There is no dispute these were carried out on 13 December 2013 and 3 June 2014. The second defendant would not pay for these. She said she got compassionate grounds for medical through her superannuation and paid for them herself. She said there was some relief from these injections however the pain returned. [21] She said she continues to visit the pain clinic. She undergoes physiotherapy and psychology. Regarding her work the plaintiff said since 1978 when she was 18 years of age she has been employed consistently in reception typist type work and as a ledger and first teller, general clerk, and operation supervisor until she stopped work between 1988 to 1999 to be a fulltime mother. She returned to work in 1999 as a -- 7 of 33 -- 8 teacher’s aide then later obtained work as a sales consultant and then in 2004 she commenced employment with the Commonwealth Bank as a part-time teller. [22] Then in July 2006 she commenced employment with Smart Service Queensland. She was employed by that organisation at the time of the collision. That work involves receiving calls from between 80 calls a day to even 170 for the departments of the Queensland Government. So instead of the public in Queensland, Australia and overseas phoning different phone numbers they phone one number and they come through to her. She said she is trained in about 400 services under the departments of the Queensland Government and they handle their calls. The work involves processing, database booking payments and assisting people locating places. She said 15 calls every two weeks are assessed. Every six months they have an appraisal which involves the sick days. She said it involves what you commit to your job. She said she was very proud of her job and she treats every customer as like opening night to give them the best service she can. She said there was concentration because it is all recorded and all assessed and it can be anything. She said it comes through the phone number so you do not know what that caller wants. You have to listen very carefully, question, para-phrase and assist to your best. She said she worked at a call centre at Mount Gravatt. She said they have dual monitors on their desk. There was also a headset. She said they are rostered for 8 hours and 20 minutes every day. She said how long we are on the computer is monitored. She said there is adherence they must meet. That is what time they are on the computer. The breaks they have are 10 minutes when they log in and then 10 minutes within about 2 hours and they can be on the phone for up to 3 hours at a time before their break. From what I understood her there is a 10 minute break in the morning, lunch is 45 minutes and there is an -- 8 of 33 -- 9 afternoon break of 10 minutes. There is also another break of about 11 minutes allowed. The plaintiff has remained with her employer since the collision to the present time. There is no dispute that she was working a 9 day fortnight at the time of the collision and is still working a 9 day fortnight. However, she said when she comes to work she may already have back pain from driving, parking the car and reversing. However, she has been provided with an ergonomic chair. However, if someone else has sat at her desk then she may have to adjust the monitors and the chair. She said during the calls she has headaches and tightness and that the back pain is stabbing and it exhausts her because she has to leave all that out and concentrate on the caller and help the caller in a good time and not put them on hold while she stands up or anything like that. Once she has a break she stands up and it is hard to walk. She said the pain is cutting and then she walks slowly to the kitchen. She doesn’t walk fast. It would be to her detriment if she did. She then walks around and within 10 minutes she has to be back, log in and ready to take calls. She said you are always looking at different monitors all the time, checking emails, checking new items. She said the focus is so powerful that at the end of the day she just goes “it’s finished” but then she has to drive home. She said driving home “it’s a jabbing pain”. [23] Regarding her intentions for the future with her work she said that she will have to go part time. She said she is not going to make it like this. She said she has been sent home. She said I have taken days off when I really need to get myself strength because I won’t cope. -- 9 of 33 -- 10 [24] A list of sick leave is in evidence. This shows that following the collision the plaintiff took sick leave on 27, 28 and 30 September 2011 (Exhibit 12). A summary of sick leave shows that before and after the collision the following: Financial year Total Sick Leave 2007 9.68 2008 3.72 2009 8.48 2010 12.6 2011 6.77 2012 10.07 2013 10 2014 5 [25] The plaintiff also gave evidence about housework including cooking and yard and pool maintenance she can no longer perform. A calculation from the evidence in the written submissions of the plaintiff shows these activities amount to about 12 hours per week. The plaintiff’s 75 year old mother and her 20 year old son also gave evidence of the work the plaintiff cannot do at home since the collision. Their evidence provides support for the plaintiff that she cannot do these activities at home since the collision. [26] The plaintiff also called Brent Sheriff and Alicia Rivera. In September 2011 they were employed by the plaintiff’s employer. Mr Sheriff was a team leader. Ms Rivera was a customer services officer. In my opinion both confirmed what I took to be from the plaintiff’s evidence the intensity of the work with very little time for a break. Further, the employees undergo significant evaluation regarding their performance. -- 10 of 33 -- 11 [27] Regarding the collision itself, Mr Sheriff said he did remember it. The plaintiff showed him some photographs that she had taken. She had called him earlier to say she might be late for work because she had been in an incident. He checked in to see if she was ok and she advised that she would give it a go and see how she went. He said she was visibly shaken and that she was putting up a brave face that afternoon. He said through that day and several days which followed he made observations of her. He said she did not seem happy. She told him she was in discomfort. He thought it was her lower back. He thought there was a change in her personality in that she became a lot quieter. He noticed her absenteeism increased. However, he said that could have been because of appointments she had to attend. There was an occasion when she told him she could not really move at all. What he noticed was absenteeism and her general demeanour. When he saw her she looked tired, exhausted, rather than upbeat and always trying to give everything her best. However, when he was cross- examined he agreed that the plaintiff was a good employee and that she was regarded after the accident as still a good employee. Further, she performed her duties. Further, there had been an ergonomic assessment for the plaintiff by Workplace Health and Safety. She was happy with the assessment. [28] Ms Rivera said that before the collision the plaintiff was a very friendly and very bubbly person. She was basically the team joker. She would always make people laugh. She would speak to everybody on a daily basis. She was the one organising afternoon teas and lunches and was very social. However, following the collision, she became very withdrawn. Her movements were very deliberate. She put on weight. She aged a lot. She said when she is sitting she is trying to move to make herself more comfortable. Ms Rivera said the plaintiff was often in tears. -- 11 of 33 -- 12 [29] When cross-examined Ms Rivera agreed that at the workstation an employee can chose to stand or sit and can move around. She would not agree that before the collision the plaintiff was quiet. She said she was a very bubbly person and she spoke to everybody. [30] Dr Wallace, an orthopaedic surgeon, saw the plaintiff 9 July 2012. To Dr Wallace the plaintiff complained of mechanical mid thoracic spinal pain, worse with sitting and extending her spine. She complained of a burning type of pain. It was also worse with twisting to one side and bending and walking. She had nocturnal pain with a sleep disturbance. She did not complain of any neurological symptoms. She continued to suffer pain without proper back support. She also continued to complain of intermittent headaches. Investigations that had been carried out included a CT scan of the thoracic spine dated 28 October 2011. Dr Wallace reported that this was a fracture of the T9 spinous process. Further, an MRI thoracic spine was conducted on 23 January 2012. Dr Wallace states this suggests a T9 spinous process fracture. His examination showed the plaintiff walked with a normal gait and there was no spinal deformity. Examination of the thoracic spine revealed some tenderness in the right para-vertebral musculature. The plaintiff had normal forward flection and extension and lateral rotation of the left and right. There was no neurological deficit in the lower limbs. She had normal muscle bulk, tone and power in the lower limbs. She had symmetrical deep tendon reflexes of normal amplitude and down going plantar responses. She had no peripheral sensation. Dr Wallace concluded that the material facts available to him suggested that in the collision the plaintiff sustained a fractured T9 vertical spinous process. -- 12 of 33 -- 13 [31] However, on 1 November 2012, Dr Wallace reviewed a report of a bone scan performed on 17 August 2012. He states this showed some evidence of ossification at the T9/T10 ligamentum flavum of no clinical significance and no other injury identified. Therefore Dr Wallace states that the plaintiff did not sustain a T9 spinous process fracture. However, his assessment of her impairment remained the same. That is a 7% whole person impairment inclusive of headaches. [32] In a later report dated 8 May 2013, Dr Wallace, after receiving a letter from Dr O’Callaghan, who was of the opinion the plaintiff had a facet joint dysfunction relating to the collision and felt that there was an indication for image guided facet joint injections, and changed his opinion regarding the plaintiff’s impairment and was of the view the plaintiff had a DRE1 category impairment of the thoracic spine and to which he would attribute a 3% whole person impairment. DRE stands for diagnosis related estimate. [33] Dr Wallace saw the plaintiff again on 14 January 2015. The plaintiff said to Dr Wallace that she continues to have headaches and complains of sub-occipital pain and pain in the right side of her neck with restriction of motion. She also continues to have mid-thoracic spinal pain. He noted the plaintiff had some relief from the injections to the thoracic facet joints by Dr O’Callaghan although he noted that was temporary. He noted the plaintiff was undergoing counselling at Metro South Hospital. She had told Dr Wallace that she was diagnosed as suffering from Post- Traumatic Stress. -- 13 of 33 -- 14 [34] When Dr Wallace examined the plaintiff he noted she was of normal body habitus and she walked with a normal gait and there was no spinal deformity. He states on clinical examination there was little change from his previous report with the exception that on the date of his most recent examination the plaintiff had tenderness in the right sub- occipital triangle and right para-vertebral musculature. He states she had normal forward flexion and extension of the cervical spine. She had normal lateral rotation and flexion to the right. Lateral rotation to the left was restricted compared to the right. He states examination of the thoracic spine revealed mid-thoracic spinal pain in the para-vertebral musculature worse on the right side. She had reduced lateral rotation of the left compared to the right. She had normal forward flexion and extension. There was no neurological deficit in the lower limbs. He states in his opinion the plaintiff continues to suffer from ongoing pain. She is continuing to require treatment. [35] Dr Wallace states that the plaintiff’s headaches are in fact cervicogenic and in his opinion in the incident she injured her cervical spine which was not assessed in his previous report of 2012 but which has now become apparent. He states the plaintiff has a chronic soft tissue injury to the soft tissue supporting structures of the cervical and thoracic spine. In his report he assesses the impairment of the cervical spine as a 5% whole person impairment. The impairment of the thoracic spine he assesses as a 7% whole person impairment. [36] When Dr Wallace was cross-examined he accepted the DRE1 was the most appropriate assessment for the thoracic spine. He also accepted that she was able to continue work. Further he said he agreed with Dr Goode and Dr Fitzpatrick that the -- 14 of 33 -- 15 appropriate category was DRE1 both for thoracic or any cervical issue. That was until his report of 8 May 2013. That was because he had found no muscle spasm up to that point in time or muscle guarding. And further he had found asymmetry of movement. Therefore he confirmed DRE1 assessment for the thoracic impairment and a DRE2 assessment for the cervical spine which was a 5% whole person impairment. He said the asymmetry of rotation in the neck in the recent examination led him to that conclusion. Dr Wallace also said that he would not agree that where there is permanent injury there should not be a change in the impairment. He said you can say that a patient has reached maximum improvement but that does not preclude deterioration in the future. He said with these types of symptoms they can be variable and clinical findings can vary from time to time. He said his observations support cervical spine impairment and her self-reporting of her restrictions. He said he did notice asymmetry of rotation of the neck. He was asked about the circumstance that different doctors have reached different conclusions with clinical examinations on different dates. He said that the natural history of these conditions is that they are variable from day to day and that observations therefore may also be different between different observers on different days. He said there may be no consistency both objectively and subjectively. He agreed before seeing the plaintiff on 14 January 2015 he found no assessable impairment with respect to the cervical spine. However it was his opinion she did in fact injure her cervical spine in the accident and when he last saw her he observed asymmetry of motion as well as palpating neck pain. Regarding the suggestion that the clinical examinations by others were such that the injuries to the thoracic or cervical spine would have resolved he said to his knowledge based on the facts he has the plaintiff was asymptomatic before the accident and became symptomatic subsequent to it. He did not accept her symptoms were caused by -- 15 of 33 -- 16 constitutional issues. He agreed that before seeing the plaintiff on 14 January 2015 he did not find assessable impairment with respect to the cervical spine. However he said in his opinion the plaintiff did in fact injure her cervical spine in the accident and when he last saw her he observed asymmetry of motion as well as palpating neck pain. He did not accept the suggestion that clinical examinations by others indicated that the plaintiff’s symptoms should have resolved. Dr Wallace said the facts that he had were that the plaintiff was asymptomatic before the accident and became symptomatic subsequent to it. He did not accept her conditions were caused by degenerative causes. He said her pre-accident state was without symptoms and she has not settled down to a state where she has no symptoms. She remains symptomatic. As far as the force involved in the collision is concerned Dr Wallace said his understanding was that there was a reasonable amount of force, enough force to cause a chronic soft tissue injury. In his opinion the injuries have become chronic. [37] When I asked Dr Wallace some questions he said he thought the thoracic spine had a DRE2 impairment. Earlier he said the thoracic should be a DRE 1. He said that was his opinion now. In the end I think Dr Wallace made a mistake when he said DRE1. At T1-71 he said DRE2 would apply to both the neck and the thoracic spine. [38] Mr Hoey an occupational therapist has provided two reports regarding the plaintiff. To Mr Hoey the plaintiff complained of ongoing neck and back pain with associated headaches. He initially saw the plaintiff on 14 September 2012 when she told him with regard to her work that she was currently persevering with full work duties. Further that her work station had been ergonomically positioned. Regarding assistance required he assessed this as 4.51 hours per week. -- 16 of 33 -- 17 [39] Mr Hoey saw and examined the plaintiff again on 28 November 2014. He noted that at work she had thoracic pain as well as intermittent neck pain and headaches. He states the primary aggravator at work is sitting for prolonged periods at her desk. He thought with knowledge and skills imparted at a pain clinic the plaintiff could return to meal preparation, light laundry, grocery shopping and some vacuuming. He states her requirement for assistance would reduce to two hours per week over time. He states attendance at a multi-disciplinary, cognitive behaviourally based clinic is required such as that at the Wesley Hospital the cost of which is $4,762. [40] Dr O’Callaghan a specialist, anaesthetist and pain medicine physician initially saw the plaintiff on 28 September 2012. When he examined her she was very tender to palpation along the right lateral edge of the lower thoracic and upper lumbar spine from about T8 or T9 level down to about L1 level. She was also tender over the lower posterolateral ribs on the right side. He noted the plaintiff had not done well with medication. He discussed the possibility of the injections. [41] In the second report from Dr O’Callaghan dated 10 April 2013 he noted that the bone scan dated 17 August 2013 had shown that the legion previously described as a fracture of T9 spinous process is in fact ossification following old trauma in the ligamentum flavum between T9 and T10. He thought she may still have persisting pain due to facet joint dysfunction as a result of the collision. He thought it was reasonable if she had continuous pain to proceed with the injections. [42] When Dr O’Callaghan was cross-examined he said, his impression was the accident was not a particularly bad accident. He said he found the plaintiff to be tender over the -- 17 of 33 -- 18 facet joints. He said x-rays, CTs, MRIs do not show pain. He said you cannot see pain on an x-ray. However because he did not know where her pain was coming from they went ahead with the injections despite the fact that nothing was showing up on investigations. [43] Dr Goode a consultant occupational physician examined the plaintiff on 18 September 2012. When he saw the plaintiff she told him that she was still experiencing intermittent right lower thoracic pain which sometimes also radiated across to her left posterior thoracic region. She told him this right lower thoracic pain is sharp and stabbing in nature but it is also sometimes of a burning nature. The pain lasts for varying periods from seconds up to hours at a time but the plaintiff has not had any days wholly free of this pain. She thought that her lower thoracic pain was sometimes associated with headaches. Her right lower thoracic pain was aggravated by physical activities, such as heavy lifting and bending, twisting, ironing clothes and washing her hair in the shower but not particularly in cold and rainy weather. She told him these lower thoracic symptoms improve with the application of local heat such as a hot pack, the topical application of goanna oil and medication – she takes one Norgesic tablet at night. [44] The plaintiff told Dr Goode that she is not experiencing any ongoing neck or lower back symptoms at all. She told Dr Goode that because of her chronic pain she is somewhat depressed such that she gets weepy at times but she is not suicidal. When Dr Goode examined the plaintiff he found some abnormal illness/pain behaviour evident on his formal clinical examination. There was some facial grimacing with even simple physical movements. There was allodynia reported over the thoracic -- 18 of 33 -- 19 region. Allodynia is a pain due to a stimulus which does not normally provoke pain (Wikipedia). Whilst the self-administered axial head compression simulation test was negative, the hip swinging axial rotation simulation test was positive, evoking a complaint of thoracic spinal pain. Examination of the thoracic spine showed now obvious frank kyphosis or scoliosis. There was globally reduced active range of motion but this seemed to be effected by the evident abnormal illness/pain behaviour. There was no thoracic dysmetria, muscular guarding or spasm. There was no neurological signs referable to the thoracic spinal nerve roots. In reaching his opinion Dr Goode noted the plaintiff was evidently exposed in the collision to mild, at most moderate forces. In his opinion in the collision the plaintiff only definitely incurred a lower thoracic musculoligamentous strain as well as a temporary symptomatic exacerbation of the constitutional multi-level degeneration in her thoracic spine. He says the plaintiff did not experience any thoracic spinal symptoms at all for at least three days after the collision and probably even up to 17 days post the collision. He states the initial tenderness nearly three weeks later was actually in the lumbar region. He states imaging failed to show any other evidence of any accompanying, acute spinal pathology. He noted that the bone scan subsequently better defined the pathology at the T9 level and this simply represented incidental lobulated calcification of the ligamentum flavum (evidently similar to that previously evidenced in the plaintiff’s cervical spine). In his opinion the accident related thoracic musculoligamentous strain and the temporary symptomatic exacerbation of the plaintiff’s multi-level degeneration would have settled within a maximum of six to eight weeks of the collision with no ongoing adverse impact on the plaintiff’s work capacity or her usual activities of daily living. He states the plaintiff’s ongoing subjectively reported lower thoracic spinal symptoms beyond that timeframe are -- 19 of 33 -- 20 actually attributable to the mild, imaged, constitutional, multi-level degeneration, in the context of some relative physical deconditioning (the plaintiff would do better to lose some weight, and to pursue a general, non-impact exercise program, which would help to ameliorate her thoracic symptoms), and the mild abnormal illness/pain behaviour (which raises the prospect of symptom magnification). [45] When Dr Goode was cross-examined he agreed in arriving at his opinion an important aspect was the force of the impact. In his opinion the musculoligamentous strain would not lead to permanent symptoms. Further, he said the AMA 5th Edition Guide is based on objective findings and pain is not an objective finding. He agreed that a significant factor as far as whether or not there was acute spinal fracture incurred on the day of the collision is the assumption there was a lack of reported symptoms after the collision for at least 2 weeks. He agreed that if the plaintiff continued to suffer symptoms in the thoracic and cervical spine there would be other reasons why those symptoms might have been continuing than his diagnosis of a musculoligamentous strain plus a minor exacerbation of a previous degeneration. Although Dr Goode adhered to his opinion that the plaintiff’s continued complaint of symptoms do not relate to the collision he agreed that if the plaintiff was suffering as she claimed, which he said did not relate to the collision, then that person would be having a level of subjective distress and they maybe could not continue at work. However, he said that would be for non-accident-related factors as outlined in his report. [46] The plaintiff was also examined by Dr Fitzpatrick, a consultant orthopaedic surgeon on 17 August 2012. In Dr Fitzpatrick’s report she states the plaintiff described back pain which she localised to the lower thoracic region. She told Dr Fitzpatrick it was a -- 20 of 33 -- 21 burning pain. She rated the pain as 3 to 7/10. The plaintiff also described to Dr Fitzpatrick neck pain that comes and goes. She told Dr Fitzpatrick it is not severe. She rated it as 2 to 4/10. In Dr Fitzpatrick’s clinical examination the plaintiff localised her pain to the right paraspinal musculature about T10. Dr Fitzpatrick states there was no tenderness over the thoracic spinous process. The thoracic spine lateral tilt to the left was to 35 degrees and to the right was to 45 degrees. Tilting to the left aggravated a pain on the right side of the chest. Thoracic rotation was to 35 degrees bilaterally and did not aggravate the pain in the lower thoracic spine. In the cervical spine the plaintiff was non-tender. Forward flexion was to 45 degrees, extension was to 52 degrees, lateral flexion was to 28 degrees bilaterally. Reflexes were brisk and equal in the biceps, triceps and supinator jerks. Rotation when assessed supine was to 65 degrees bilaterally. Sensation was intact in the upper limbs. Dr Fitzpatrick states the plaintiff had a normal gait. She was able to heel-walk and toe-walk. Reflexes were brisk and equal in the knee and ankle joints. Thoracic sensation was intact. Dr Fitzpatrick states any soft tissue injury to the thoracic spine caused by the motor vehicle accident has reached maximum medical improvement and permanent impairment can be assessed. Dr Fitzpatrick says the injury falls into DRE thoracic category 1 with 0% whole person impairment. Dr Fitzpatrick also states that any injury to the cervical spine is musculoligamentous in nature. It has reached maximum medical improvement and permanent impairment can be assessed. She states the cervical would fall into DRE category 1 with a 0% permanent impairment rating. [47] In a supplementary report, Dr Fitzpatrick states her opinion that it is unlikely the plaintiff sustained an acute or traumatic facet joint dysfunction as a result of the collision. -- 21 of 33 -- 22 [48] When Dr Fitzpatrick was cross-examined, she agreed that any soft tissue injury or musculoligamentous injury can cause permanent symptoms. Dr Fitzpatrick agreed that if the plaintiff was suffering significant pain at work on a daily basis with headaches and problems sitting for long periods of time, then it would seem unlikely that she could continue working in the longer term. Dr Fitzpatrick was asked to consider the proposition that if prior to the collision the plaintiff did not have a history of neck or thoracic pain and after the collision she developed pain in her neck and thoracic spine over the next day or two or few days and the pain has continued, is it likely the pain has been caused by the collision? Answering that question, Dr Fitzpatrick said she had referred, in coming to her opinion, to a number of aspects including the description of the accident and the photos and the damage to the vehicle and the history given by the plaintiff to her general practitioner, and on the basis of all those facts she felt that it would appear the plaintiff did suffer neck pain following the collision; however, the thoracic spine pain was a little less clear. Dr Fitzpatrick also referred to the history which indicated that the plaintiff went to her GP about 20 days after the collision, and the notes from the GP indicated that the pain started a couple of days before that when the plaintiff bent forward. Further, the plaintiff did not seem to remember any trigger at that time. Dr Fitzpatrick said she came to the opinion the neck pain was attributable to the collision but the thoracic spine appeared to have developed a while later, although the plaintiff did say that it was there right from the time. Finally, Dr Fitzpatrick said that she thought it was unlikely that the collision, as she understood it, would cause significant thoracic spine pain. Dr Fitzpatrick said if the plaintiff dates the pain from the collision, then her condition has been aggravated by the collision. -- 22 of 33 -- 23 [49] I was favourably impressed by Mr Sheriff when he gave evidence. He impressed me as an honest and reliable witness. In my opinion, he was not favouring the plaintiff in the evidence he gave. When he gave his evidence he also gave favourable evidence for the defence. That is, he confirmed that as the team leader he was happy with her work performance since the collision. She had expressed to him her desire to continue in the work and to continue to work fulltime. She never expressed to him that she wanted to go part-time or that she could not cope with the work. Importantly for the plaintiff, his evidence was that he remembered the accident. When he saw her later that day, she was visibly shaken and she was putting on a brave face to work. Then, she appeared not happy. She had said she was in discomfort, and he thought it was in her lower back. He said there had been a change in her personality and she became a lot quieter. [50] Ms Rivera also favourably impressed me. Although she would seem to have been closer with the plaintiff in the workplace (because, I took it, they both did the same work and she was not a team leader as Mr Sheriff was), my opinion of Ms Rivera was that she was an honest and reliable witness. Ms Rivera’s evidence confirms the intensity of the work. Further, that before the accident the plaintiff was very friendly and very bubbly and social, but after the collision she became withdrawn and her movements were very deliberate and she put on weight and she aged a lot. Ms Rivera also saw the plaintiff forever trying to move to make herself more comfortable. Finally, Ms Rivera saw the plaintiff in tears which I consider supports the difficulties the plaintiff has had with work and coping with her injuries. [51] I accept the evidence of Mr Sheriff and Ms Rivera. -- 23 of 33 -- 24 [52] If it were not for the evidence of Mr Sheriff and Ms Rivera, I would have reservations about the plaintiff’s evidence about when stiffness and pain occurred in her neck, lower back and mid back and whether those conditions occurred at all. I am persuaded by the evidence of Mr Sheriff and Ms Rivera that after the collision the plaintiff went into work, was feeling tightness in her body all around and stiffness, and that she was just going through the motions to do her work. I also accept the plaintiff’s evidence the collision caused stiffness and pain in her neck, lower back and mid back. I accept this stiffness and pain in those areas came on over the next day or two following the collision. [53] There is of course confusion about when did the plaintiff obtain the name of the chiropractor from Ms Rivera. Ms Rivera thought the plaintiff phoned her about the name of the chiropractor within days of the collision. However she could not recall the exact time. When the plaintiff gave evidence about it, she thought she approached Ms Rivera for the name of the chiropractor on the weekend. I took the plaintiff to mean the weekend before going to the chiropractor. [54] In addition the chiropractor notes suggest the plaintiff was motivated to see the chiropractor because “sneezing” caused her pain. [55] I say this is confusing because Dr Celis’ note of 27 September 2011 states “back pain before the weekend”. This would seem to suggest the plaintiff was seeing Dr Celis after a weekend and that the back pain came on before the weekend because of “sneezing”. -- 24 of 33 -- 25 [56] Nevertheless despite this confusion, I accept the plaintiff experienced back pain within a day or so after the collision. That is because Mr Sheriff said the plaintiff said she had discomfort after the accident in her lower back. Further, the collision is referred to in the chiropractor’s notes and Dr Celis’ notes. [57] Further, regarding Dr Celis’ notes if the reference to the “MVA on 8/9/2011” was at the top of the notes, that could give a different complexion to this issue. In addition, the reference to “but not much of back pain” after “some neck soreness” does not in my opinion say there was no back pain after the motor vehicle accident. [58] If there is doubt created by these notes of Dr Celis against the plaintiff, I would favour the plaintiff over Dr Celis. I heard Dr Celis give evidence over the telephone, and she impressed me as a person who might not make a record verbatim. In the transcript at 1-76 at line 40-45, Dr Celis’ answer regarding the conversation with the plaintiff when asked whether she was told of some neck soreness then but not much of back pain, the doctor answered, “No, no. There was no back pain.” I do not accept that is what the plaintiff told Dr Celis. Even Dr Celis’ note does say “some neck soreness then but not much of back pain”. If the plaintiff said “no back pain” in my opinion one would expect “no back pain” to be in the notes. [59] Further in favour of the plaintiff’s credibility is that she has not left work and has continued to work in the same capacity as she was employed at the time of the collision. The plaintiff did not take any sick leave after the collision until the 28th, 29th and 30th of September 2011. Because of the evidence of Mr Sheriff and Ms Rivera the -- 25 of 33 -- 26 period of 3 weeks before the plaintiff took sick leave does not cause me to lose confidence in the plaintiff’s credit. [60] In addition, the plaintiff’s mother and son gave evidence. I was favourably impressed by both her mother and son. I thought they were doing their best in difficult circumstances (being in Court) to give evidence about a difficult aspect of a claim for damages for care and assistance. In my view neither the plaintiff’s mother nor her son were rehearsed in any way. I accept their evidence. Their evidence, in my view, supports the plaintiff’s claim that the effects of her injuries from the collision have prevented her from doing household tasks including cooking, yard and pool maintenance. In my view, their evidence supports the plaintiff’s credibility. [61] In addition, in my opinion undergoing the facet joint injections on two occasions is in favour of the plaintiff’s credibility. The plaintiff paid for these procedures herself from money she obtained from making a compassionate claim to her super. I do not accept someone who is not genuine would go to these lengths unless they were trying to seek relief from their pain. [62] However, Dr Goode found the plaintiff to have engaged in abnormal illness/pain behaviour during his clinical examination. He noted some facial grimacing with even simple physical movements. He stated there was allodynia reported over the thoracic region. While one test was negative, the hip swinging axial rotation simulation test was positive, evoking a complaint of thoracic spinal pain. His clinical examination, and the clinical examination by Dr Fitzpatrick, did not reveal an objective basis for the plaintiff’s complaints. -- 26 of 33 -- 27 [63] Dr Wallace saw the plaintiff on 9 July 2012 and again on 14 January 2015. Dr Goode saw the plaintiff on 18 September 2012. Dr O’Callaghan saw the plaintiff on 28 September 2012. Dr Fitzpatrick saw the plaintiff on 17 August 2012. [64] These examinations were in close proximity to each other in 2012. Dr Wallace’s examination of the thoracic spine revealed some tenderness in the right para-vertical musculature. Dr O’Callaghan found tenderness along the right lateral edge of the lower thoracic and upper lumbar spine from about T8 or T9 level down to L1 level. [65] In addition, the plaintiff did not complain to Dr Goode on 18 September 2012 that she was experiencing any neck or lower back symptoms. The plaintiff did not complain to Dr Wallace on his examination on 9 July 2012 that she had neck problems whereas at a later time, when examined by Dr Wallace on 14 January 2015 the plaintiff complained to Dr Wallace about neck symptoms. The plaintiff did complain about neck symptoms to Dr Fitzpatrick on 17 August 2012. [66] However, as I have said Dr Goode’s and Dr Fitzpatrick’s clinical examinations did not reveal objective support for the plaintiff’s symptoms. In fact Dr Goode observed questionable behaviour by the plaintiff during his examination of her. [67] Of course, Dr Wallace said the natural history of these conditions is that they are variable from day to day and that observations may also be different between observers on different days. He said so there may be no consistency between observers on different days. He also said the assessment of range of motion or the symmetry or -- 27 of 33 -- 28 lack thereof is an observation. He said from day to day and between different observers there may be differences. [68] While the evidence of Dr Goode and Dr Fitzpatrick casts doubt on the plaintiff’s credibility, I prefer the evidence of Dr Wallace, Dr O’Callaghan and Mr Hoey to that of Dr Goode and Dr Fitzpatrick. That is because in my opinion the plaintiff’s evidence is supported by Mr Sherriff and Ms Rivera and by her mother and son. I am also persuaded by Dr Wallace’s evidence that the plaintiff’s condition could be variable and different observations might be made on different days by different observers. In addition, although the collision may have been minor in comparison to other collisions, the collision is admitted. The plaintiff may have been slow to go to the chiropractor or the general practitioner. However, to my mind that also supports her credibility because she did not “rush” to the doctor. [69] Therefore, regarding the observations made by Dr Goode and Dr Fitzpatrick, I am not persuaded by those observations that the plaintiff is dishonest or claiming to be suffering symptoms she is not. [70] Therefore, I accept the evidence of the plaintiff. [71] Therefore, I find the collision has caused the plaintiff chronic soft tissue injury to the supporting structures of the cervical spine, causing an impairment of 5% whole person. Further, I find the collision has caused the plaintiff chronic soft tissue injury of the thoracic spine, causing an impairment of 7% of the whole person. -- 28 of 33 -- 29 [72] Therefore, I find that the plaintiff’s dominant injury is item 93 of schedule 4 to the Civil Liability Regulation 2014, “moderate thoracic or lumbar spine injury – soft tissue injury”. The ISV range is 5-10. In my opinion, the ISV should be 10. [73] It was submitted that there should be an uplift of 25% to the ISV because the plaintiff had suffered injury to the cervical spine and thoracic spine, and therefore suffered multiple injuries. Although s 4 of schedule 3 to the Regulation allows for such an uplift, I am not satisfied that there has been a level of adverse impact of multiple injuries on the plaintiff that is so severe that the maximum dominant ISV is inadequate to reflect the level of impact. [74] Therefore, I allow the plaintiff general damages for pain and suffering and loss of amenities of life in the sum of $13,350. [75] I allow the plaintiff special damages agreed at $4,704.83. [76] In my opinion, the plaintiff has acted reasonably in seeking medical attention and in particular seeking relief from the two operations from Dr O’Callaghan on her facet joints. Therefore, I allow the plaintiff $3,202.50 for damages for Medicare component and the cost of those facet joint operations. [77] There is a claim for past unpaid care. Section 59(1) of the Civil Liability Act 2003 provides that damages for gratuitous services provided to an injured person are not to be awarded unless the services are provided, or are to be provided, for at least six hours per week and for at least six months. That section provides a threshold that -- 29 of 33 -- 30 must be met before damages for gratuitous services can be awarded (Shaw v Menzies & Anor [2011] QCA 197). [78] Although Mr Hoey said his calculation of 4.51 hours per week was worked out for all the tasks required in the household then divided by three for the three members of the household and then converted to hours, even if I accepted that evidence it does not meet the threshold. [79] Further, the evidence the plaintiff gave and even the evidence of her mother and son did not, in my opinion, demonstrate that the plaintiff physically needed the assistance as opposed to it not being expected of her that she would perform domestic tasks. That is, the evidence did not satisfy me that there were services which the plaintiff both needed solely by reason of her injury and had been provided to her for six hours per week (see Land v Dhaliwal & Anor [2012] QSC 360; Reitano v Shearer & Anor [2014] QCA 336, [25]). [80] Therefore, I do not allow the plaintiff damages for past unpaid care. [81] There was agreement between the parties that the plaintiff had suffered past economic loss in the sum of $1,200. I allow that sum of $1,200 for past economic loss. That is consistent with the evidence that the plaintiff has continued to work at the same level as before the collision. [82] Therefore, I allow the plaintiff loss of superannuation at 9% on past economic loss, which is a sum of $108. -- 30 of 33 -- 31 [83] I also allow the plaintiff interest on past economic loss at 2% per annum over 3.4 years, which is $81.60. [84] On the plaintiff’s special damages, I allow interest on $5,127.13. That is, from Exhibit 18 I have exempted the Medicare amounts, and on the balance, which is $5,127.13, I allow interest at 2% for 3.4 years, which is $348.64. [85] I accept Mr Hoey’s evidence that the plaintiff would benefit from attendance at a multidisciplinary, cognitive behaviourally based clinic. Therefore, I allow the plaintiff the sum of $4,762 to attend this program. [86] The plaintiff attending the program I have just mentioned also leads to my conclusion that her need in the future for care and assistance can be assessed as two hours per week over time, according to Mr Hoey. Using a rate of $30 per hour for the provision of this care and assistance, I allow the plaintiff for a period of 10 years future Griffiths v Kerkemeyer1 damages for 2 hours per week at $30 per hour. Using a multiplier of 413 on the 5% interest table, I allow the plaintiff $24,780 for future Griffiths v Kerkemeyer damages. [87] In my opinion the plaintiff has been stoic. Clearly she is not in a position to cease employment. She did say she is proud of her work. Even as she gave evidence, I detected that she was proud to be competent in doing the work. I accept her evidence that she will not in the future cope and have to go part time. In addition I detected from her evidence and the evidence of Ms Rivera that although she has an empathetic 1 Griffiths v Kerkemeyer (1977) 139 CLR 161. -- 31 of 33 -- 32 employer, there is a lot of assessment about how well the work is being done by people in the plaintiff’s position. I bear in mind the plaintiff is now 55 years of age. However, I cannot calculate the plaintiff’s loss of earnings in the future by reference to a defined weekly loss (section 55(1) Civil Liability Act 2003). I am satisfied it is likely the plaintiff will suffer loss having regard to her injuries by having to go part time sooner rather than later. Dr Fitzpatrick and Dr Goode whose evidence I accept on this point were of the view if the plaintiff was suffering the symptoms claimed she would be unlikely able to continue in the same role for the next 10 to 15 years. In those circumstances I am of the view that it is right to assume the plaintiff is likely to have worked for another 10 years full time but will likely have to work part time sooner than later and even have to cease work even before her expected normal retirement. Therefore, the method I use is to allow the plaintiff the equivalent of two years loss of income for loss of earnings in the future (section 55(3) Civil Liability Act 2003; Ballesteros v Chidlow [2006] QCA 323, [41]). That is a sum of $126,440. [88] I also allow loss of superannuation for the future at 9% on the sum of $126,440. This is a sum of $11,379.60. [89] I also allow the plaintiff future medication. From the plaintiff’s schedule of future pharmaceutical and treatment expenses, I allow one tube per week of Voltarin at $8 per week and 50 cents per week for Solprin. That is $8.50 for future medication on the 5% interest tables, the multiplier being 413, for a period of 10 years. That is a sum of $3,510.50. [90] The total award, therefore, is a total of $193,867.67. -- 32 of 33 -- 33 [91] I give judgment for the plaintiff against the second defendant for the sum of $193,867.67. [92] I will hear the parties on the question of costs. -- 33 of 33 --