Dirks v Girle & Allianz Australia Insurance Ltd [2013] QMC 28

MAGISTRATES COURTS OF QUEENSLAND CITATION: Dirks v Girle & Anor [2013] QMC 28 PARTIES: CHRISTOPHER JOHN WARWICK DIRKS (plaintiff) v DIANA ALEXANDRA GIRLE (first defendant) and ALLIANZ AUSTRALIAN INSURANCE LIMITED (second defendant) FILE NO/S: M9283/12 DIVISION: Magistrates Court PROCEEDING: Claim for damages for personal injuries ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 6 December 2013 DELIVERED AT: Brisbane HEARING DATES: 23 October 2013, 24 October 2013 MAGISTRATE: Callaghan CJ ORDER: Judgment for the Plaintiff against the second Defendant in the sum of $63,744.30 CATCHWORDS: PERSONAL INJURIES – ASSESSMENT OF DAMAGES – tenderness to cervical spine musculature - general damages – future economic loss global basis Civil Liability Act 2003 COUNSEL: S Neaves for the plaintiff R Lynch for the second defendant SOLICITORS: Queensland Law Group for the plaintiff Sciacca’s Lawyers for the second defendant [1] On 3 March 2010, the plaintiff was driving a Mitsubishi sedan along Wellington Road towards Logan Road passing the intersection of Nile Street at East Brisbane. [2] At the same time, the first defendant was driving a Renault sedan along Nile Street on to Wellington Road. -- 1 of 13 -- 2 [3] The first defendant’s vehicle struck the plaintiff’s vehicle. [4] The second defendant is the licensed insurer for the first defendant and has admitted liability for the first defendant’s negligence. [5] The plaintiff seeks damages for personal injuries suffered as a result of the collision. [6] The plaintiff sustained a soft tissue injury to his cervical spine. [7] He was born on 26 September 1990, which makes him 23 years of age now and 19 at the time of the accident. [8] The parties have agreed on three items of quantum. They are:- (i) the plaintiff has expended $130.00 in general practitioner consultations; (ii) the plaintiff has expended $14.80 in travelling expenses; (iii) the cost per packet of panadol or nurofen is $5.00; (iv) Interest on past losses should be calculated at 1.7% per annum; (v) On any future economic loss, the loss of employer funded superannuation should be calculated at 9.25%; [9] Damages which need to be assessed are therefore:- (1) general damages; (2) past out of pocket expenses (3) past economic loss; (4) future medical/special damages; (5) future economic loss; (6) future losses of employer funded superannuation. [10] These proceedings are governed by the Civil Liabilities Act 2003. [11] The onus is on the plaintiff to prove his case on the balance of probabilities. The Evidence [12] Two to three hours after the accident, the plaintiff attended upon his general practitioner Dr Luu. DR Luu noted that he complained of a sore neck, no headache, but mild back pain. The plaintiff in his evidence said that he couldn’t recall whether or not he complained about having a headache but that he did tell Dr Luu that he felt pain in his neck and pins and needles down his left arm. On examination, Dr Luu noted with respect to his neck that he had mild soreness over the lower cervical region, he was very sore and tight over the left side of the neck muscle and he was very sore on movement of the neck. On examination of the back, Dr Luu noted that there was no thoracic and lumbar spine tenderness. -- 2 of 13 -- 3 [13] He again saw Dr Luu on 5 March 2010. Dr Luu noted that the plaintiff said that he was still unable to work that day due to pain in his neck going down to his left arm but he was much better now. The plaintiff in cross-examination corrected this notation saying that he said to Dr Luu that the pain wasn’t as intense as it was on the day of the accident. Dr Luu noted that the plaintiff said he needed a certificate to have the further day off work and would go back to work on the Monday. 5 March 2010 was a Friday. Dr Luu noted that on examination there was no tenderness on the cervical spine and that he had freedom of movement of the neck. The plaintiff could not recall Dr Luu examining his neck (though I didn’t take the plaintiff’s evidence to deny that any such examination took place – but merely that he couldn’t recall it). Dr Luu also noted that there was no tenderness in both upper limbs and he had freedom of movement in respect of them. The plaintiff agreed that his arms were not a problem but his shoulder and neck was. [14] The plaintiff agreed that these were the only consultations for treatment with respect to the injuries received from this motor vehicle incident, but said that he couldn’t afford the time off work to go to doctors. He didn’t know at the time that WorkCover would pay for his time off work to attend for treatment of his injuries. He also said that he couldn’t afford physiotherapy as he was on an apprentice’s wage. He accepted (even though he couldn’t recall) that his solicitors would have told him that in June 2010 the second defendant admitted liability and would pay for rehabilitation. [15] It was suggested to him that the reason he didn’t seek any further treatment for these injuries was that they were of so little concern to him. He rejected this suggestion saying that he didn’t seek treatment because he couldn’t take time off work. [16] At the time of the incident the plaintiff was employed by Wild Air Conditioning as an apprentice refrigeration mechanic and “trades assistance” (sic). He finished work with them in June of 2010. On 26 July 2010 he obtained employment through CPE Rural, a recruiting agency, as a shed hand for Huston’s farm. That work was casual. He worked with them until 15 August 2010. On 1 September 2010 he obtained work as a kitchen hand at the Pacific Golf Club. It seems he remained with them until 11 September 2011. [17] On 19 September 2011 he obtained his current position at Blakes Systems Pty Ltd in the position of “apparent installation technician”. He continues in the employment of Blakes up until this time. [18] The evidence is such that he left Wild Air Conditioning due to a downturn in the industry rather than for any medical reason associated with his injuries. He concluded his work at Hustons Farm because, in his words, he was not getting enough work. He obtained work at the Pacific Golf Club through his sister who is the head chef there. His father holds a managerial role at Blakes and he was able to obtain work there, no doubt through the connection his father has with the company. His father had held a position at Wild Air Conditioning but had resigned two weeks prior to the motor vehicle incident. [19] The plaintiff undoubtedly has a strong work ethic. He is no malingerer. -- 3 of 13 -- 4 [20] Two orthopaedic surgeons gave reports and were called to give evidence in the matter. Malcolm Wallace was called by the plaintiff and Lloyd Toft was called by the second defendant. [21] Two occupational therapists gave reports and were called to give evidence in the matter. Nancy Stephenson was called by the plaintiff and Cameron Fraser was called by the second defendant. [22] Malcolm Wallace examined the plaintiff on 28 March 2011 and provided his first report on 5 April 2011. He gave a subsequent report on 13 June 2011 as a result of reviewing the CT scan of the plaintiff’s cervical spine. [23] Dr Lloyd Toft examined the plaintiff on 22 November 2011 and provided a report dated that same day. [24] Dr Wallace formed the opinion that the plaintiff has a 7 per cent whole of person impairment inclusive of headaches. Dr Toft on the other hand despite saying that the plaintiff reported some ongoing activity related to neck symptoms and as there are no significant physical findings he would therefore be classified as at zero per cent impairment of the whole person. General Damages [25] The second defendant argues that due to a number of matters the plaintiff is not as injured as he makes out. They are:- 1. The only treatment for his injuries he sought was from Dr Luu on the day of the accident and again on 5 March 2010. He has sought no further treatment in circumstances where had he done so the same would have been paid for by Workcover Queensland; 2. The plaintiff reported varying rates of ingestion of analgesics. In his evidence he said he gets headaches daily if he is hammer drilling in the course of his job. He said he carries the brand Nurofen Plus with him and has three tablets at a time. He said that can be on a daily basis and he takes them as he needs them. Whereas Nancy Stephenson occupational therapist noted in her report of 28 March 2011 that he took panadol or nurofen two to three times per week two tablets at a time, Dr Wallace in his report of 28 March 2011 indicated that he took over-the-counter analgesia occasionally when his pain is bad, Dr Toft in his report of 22 November 2011 noted that the plaintiff stated that he had had headaches for a while and took analgesics and Cameron Fraser, occupational therapist, in his report of 22 November said that the plaintiff had reported consuming panadol for headaches every now and again (approximately once fortnightly); 3. The plaintiff has displayed inconsistency with respect to his range of movement. Dr Luu in notes of his examination of 5 March 2010 noted the plaintiff had full range of movement of his cervical spine, Dr Wallace in his report of his examination of 28 March 2011 noted that the plaintiff had more rotation to the right but lateral rotation to the left was slightly restricted, Nancy Stephenson in her report of her examination of him on 28 March 2011 (the same day as Dr Wallace) noted that the plaintiff had slight restriction on his right rotation and a full range of movement on his left rotation, Cameron Fraser who examined him on 22 November 2011 indicated that the plaintiff had a one quarter loss of normal active range of -- 4 of 13 -- 5 motion during lateral flexion and rotation to the left and Dr Toft who examined him on the same day 22 November 2011 said the plaintiff had a full active range of motion of his cervical spine. The plaintiff in his evidence said that he had pain in his neck and down his left side to his shoulder. He said when doing the dishwashing at the Pacific Golf Club and when carrying stacks of plates this would cause an irritation to the left side of his neck and then a headache would usually follow. The plaintiff also gave evidence that using the hammer drill in his current occupation causes difficulties due to the vibration, that all of the work with the hammer drill is above his shoulder height and every day he uses it he gets a throbbing pain always to the left shoulder and neck. He said after a hard day he can’t turn his head left over his shoulder. 4. The plaintiff described a headache at the right front of his forehead when giving evidence whereas the notes made by Dr Toft and Mr Fraser back in November 2011, some almost two years ago, were that he was suffering a headache to the left side of his forehead. [26] There is no great inconsistency in the reporting of his intake of analgesics as noted by Nancy Stephenson and Drs Wallace and Toft. The statement of consuming panadol for headaches once a fortnight to Cameron Fraser on 22 November 2011 is different to what was stated to Nancy Stephenson, occupational therapist, on 28 March 2011 that he took Nurofen two to three times per week. This is of course also different from what he said in evidence. Of course these statements were all made at varying times and it is therefore understandable that some differences might be given by the plaintiff, who undoubtedly takes differing amounts of analgesia at different times for different conditions. It is not known whether any of the occupational therapists who questioned him about it were questioning him as to his intake of analgesics generally on an average since the accident or over the last few weeks or over the last day or two. These factors simply aren’t known to place any great reliance on them to found the making of an adverse finding of credit against the plaintiff. The orthopaedic surgeon’s notations of the analgesics taken by the plaintiff are similarly not sufficiently detailed to found an attack on the credit of the plaintiff. [27] Similarly the inconsistency with respect to the range of movement displayed on examination with the various practitioners in my view does not diminish the credit of the plaintiff. He is being examined by these persons at different times. Also when examined by Dr Marshall he was employed as the dishwasher at the Pacific Golf Club and when examined by Dr Loft he was employed in the first months of his job at Blakes. One would expect that an injury such as this would have a different effect on the plaintiff at different times depending upon what he had been doing in respect of that part of his body in recent hours, days or weeks. Further more they are not always examined by the same person and hence what might be a full rotation to one examiner might not be a full rotation to another examiner. [28] The fact that the plaintiff described a headache at the right front of his forehead when giving evidence whereas the notes made by Dr Toft and Mr Fraser back in November 2011, some almost two years ago, were that he was suffering a headache to the left side of his forehead does not detract from the plaintiff’s veracity. Honest persons can be quite easily forgiven for saying two years previously that a headache was to one side of the forehead and in evidence saying that when he gets headaches these days he gets them to a different side of the forehead. -- 5 of 13 -- 6 [29] These inconsistencies do not cast doubt on the veracity on the plaintiff’s complaints. [30] In my view the plaintiff gave evidence in an honest and forthright manner. He made concessions when they were clearly due. I am satisfied that he is telling the truth in respect of his injuries and how they affect him. The injuries are going to affect him in different ways at different times. [31] His evidence is supported by that of his father, Warwick Dirks, who said that he has observed the plaintiff at home and says that the plaintiff has an obvious weakness in his left arm. He said he had asked the plaintiff to help him at home to erect a pergola. During this task the plaintiff was not of much use especially when lifting timber. He also observed the plaintiff when driving and said he observed the plaintiff had difficulties when turning his head when reversing. [32] The plaintiff gave evidence that his current employment requires him to: 1. install and fix cable trays to ceilings; 2. run cables; and 3. install access controls, card readers and cameras. [33] This work means that he has to use hammer drills, hammers, drills and cable and conduit cutters. The vast majority of his work is above the ceilings and therefore above his shoulder height. He also has to crawl through ceiling spaces pulling cables. This is undoubtedly involves him getting his body into awkward positions. [34] He gave evidence, which I accept, that when he uses his drill in its hammer mode he uses it above shoulder height and this occurs at least once per day. The vibrations cause him pain. He said he asks for help at work if he needs it. He said that if a job becomes too heavy for him he’d be transferred to lighter duties and colleagues will take over from him. He gave an example of this occurring some days before the hearing when he had drilled for 5 metres taking him 3 hours when colleagues took over for him and he moved to do a fit off. He said that as far as he knew no colleagues had any difficulty performing the same tasks which give him difficulty. [35] The second defendant argued that as no colleagues were called to give evidence nor was their absence explained then in accordance with the principals in Jones v Dunkel1 I should infer that their evidence could not have supported the plaintiff. Whilst this may lead to a rational inference that the evidence would not have helped the case for the plaintiff, and I do draw such inference, it doesn’t necessarily lead to a finding that the plaintiff is not reliable on this aspect of his evidence. There could be reasons that these witnesses would be of no help to the plaintiff’s cause such as them not being able to give such evidence in detail (for example giving details as to the dates and times when they observed the plaintiff struggling at work and needing relief) which lead his counsel to make the decision to not call them. As I have said earlier the plaintiff impressed me as a witness of truth. [36] Dr Toft found that the plaintiff fell into DRE Cervical Category I (0% impairment of the Whole Person) that is he had “No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity and no other indication of impairment related to injury or illness and no fractures.” He based his opinion on the fact that there were no significant 1 (1959) 101 CLR 298; [1959] HCA 8 -- 6 of 13 -- 7 physical findings on examination considering that the plaintiff had a full range of motion of his cervical spine and that there was no evidence of muscle spasm or of asymmetry of movement and no evidence of any neurological deficit in the upper extremities. [37] Dr Wallace found that the plaintiff fell into DRE Cervical Category II (5% - 8% impairment of the Whole Person) relevantly described as “Clinical history and examination findings are compatible with specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity” This is undoubtedly due to the fact that Dr Wallace on examining the plaintiff observed that tenderness of the cervical spine was revealed to him in the left para-cervical musculature radiating into the left trapezius and asymmetrical loss of range in rotation to the left with muscle guarding and pain. He said that this display of symptom could be intermittent and I accept this evidence. It is in my view the reason why the same symptoms were not displayed to Dr Toft when he examined him. [38] I accept Dr Wallace’s opinions that the plaintiff has a DRE Category II impairment and that his whole of body impairment is 7%. Having regard to Dr Wallace’s assessment I accept that the plaintiff has a moderate permanent impairment for which there is objective evidence, of the cervical spine. I assess the plaintiff’s injury scale value (“ISV”) at 7. Having regard to Schedule 6A of the “Civil Liability Regulation 2003” I award general damages to the plaintiff in the sum of $7,400.00. Past Out of Pocket Expenses [39] It has been agreed that the plaintiff has expended $130 in general practitioner consultations, $14.80 in travel expenses and the cost per packet of Panodol and Nurofen is $5. It has also been agreed that interest on past losses should be calculated at 1.7% per annum. The only other past special damage claimed is for the plaintiff’s use of analgesia. In his evidence the plaintiff said that he now gets headaches daily when hammer drilling. This has been occurring since a little while after he commenced working at Blakes Systems in September 2011. He said that he carries Nurofen Plus with him and he consumes three tablets on each occasion he gets a headache and that can be daily. He told the occupational therapist Nancy Stephenson in March 2011 that he took Nurofen two to three times per week. This was before he commenced work at Blakes, but gave evidence that the pain has got worse now that he is working with the hammer drill at over-shoulder height. [40] On the evidence of what he told Nancy Stephenson, which I accept, I am of the view that prior to commencing working for Blakes he would have consumed approximately one packet of either Panodol or Nurofen per month and that after working at Blakes he consumes two packets of either Panodol or Nurofen per month. Accordingly I award the total sum of $504.80 for past special damages being the agreed $144.80 for doctors visits and travel expenses plus 18 months between March 2010 and September 2011 consumption of one $5 packet of Nurofen or Panodol ($90) plus 27 months from September 2011 to December 2013 at $10 per month for the consumption of two packets of Nurofen or Panodol ($270). Interest at 1.7% per annum on past special damages is $8.50 per annum or in total $34.50. -- 7 of 13 -- 8 Past Economic Loss [41] Immediately post-accident the plaintiff had two days leave from work due to his injury. These days off work were paid for by his employer and I accept that the plaintiff suffered no loss in respect of those days off. [42] The plaintiff gave evidence in cross-examination that one reason he lost his job at Wild Air Conditioning was due to his inability to get the job done. He also stated that Wild Air Conditioning’s work had dropped off and he could not get to some of the jobs and Wild Air Conditioning kept on the stronger workers. He told Cameron Fraser the occupational therapist when he saw him in November 2011 that his work with Wild Air Conditioning was terminated due to a downturn in the industry. He accepted that he told Dr Wallace that he left Wild Air Conditioning because work was low. His volunteering of this information in cross-examination before it was suggested to him (i.e. what he had told Cameron Fraser and what he had told Dr Wallace) is one of the matters where he voluntarily made concessions when concessions were due and has bolstered his credit in this matter. [43] Notwithstanding that, in my view it is abundantly clear on all of the evidence that he left Wild Air Conditioning due to a downturn in work and transport difficulties he had as a result of the motor vehicle incident rather than due to any personal injury he suffered during the course of the incident. [44] Accordingly in my view he has not suffered any past economic loss. Future Medical/Special Damages [45] The second defendant argues that as the plaintiff, without good reason, has not availed himself of any rehabilitation treatment in the form of physiotherapy since the accident it is difficult to accept that he will do so in the future and so the second defendant submits no award should be made. [46] The plaintiff explained in his evidence that he didn’t avail himself of any further medical treatment after seeing Dr Luu because he could not afford to take the time off work and he did not think his work would pay for it. I accept that explanation. It is considered by both occupational therapists that a course of physiotherapy would be beneficial in minimising aggravation of his symptoms into the future. Initially Ms Stephenson suggested that the physiotherapy should be of four to six months duration at a cost of $60 per session. She agreed when giving evidence that there was perhaps lesser need now. [47] I am satisfied that it is appropriate to make an award to allow for weekly physiotherapy for three months at the rate of $60 per session, an amount of $780. Further I note that Mr Fraser was of the opinion that the plaintiff would benefit from education in relation to his work practices at a cost of $400. I agree that the plaintiff would benefit from that especially given the work he is now doing is the same that he did when he visited Mr Fraser for his report. [48] Ms Stephenson has suggested that he would require assistance such as car cleaning, home maintenance, a rear view camera to assist in his reversing, extended vehicle mirrors, supportive mattress, supportive pillow, electric heat pack, thermos skin wrap, wheat pack for his neck pain, a waste height clothes line and rehabilitation -- 8 of 13 -- 9 driving lessons. I do not accept that the plaintiff’s injuries are such to require an award for any of those headings. [49] Accordingly for future expenses I award $1180. Future Economic Loss [50] The plaintiff seeks an award for future economic loss on a global basis as, given the plaintiff’s age and current employment situation, establishing with precision such an award would not be feasible. The second defendant argues that it is only a possibility that the plaintiff will suffer future economic loss which is so unlikely as to become merely speculative and therefore no award should be made. The second defendant concedes that if there is an award to be made then the award should be on a global basis. [51] I note the following:- 1. Apart from the two days following the accident the plaintiff has had no time off work on account of his injury; 2. Apart from the visits to Dr Luu as previously described he has sought no treatment for a period of over three and half years since the injury; 3. His use of analgesia has not been constant; 4. Mr Fraser opined when he examined the plaintiff (about 2 months into the plaintiff’s employment with Blakes) that he was capable of working in ongoing full time employment as a security electrician and capable of completing an apprenticeship and at the time he was managing to perform all duties while exercising caution and using modified working postures when working above shoulder height for prolonged periods; 5. The plaintiff’s performance review indicates that he is performing all aspects of the position satisfactorily. 6. There is no reliable evidence to suggest that the plaintiff could ultimately pursue a career as an air conditioning installer but for the accident; 7. It is likely that the plaintiff will be required to perform even less manual handling once he becomes a qualified tradesman; 8. The plaintiff left school at year 10 and apart from a short period has remained in employment since leaving school; 9. Given the plaintiff’s education history which paints a picture of a young man who is not academically inclined, the plaintiff is more suited to physical work. [52] All of the medical evidence satisfies me that the plaintiff in this case is not suited to heavy, repetitive, above shoulder-height tasks. [53] The plaintiff has managed to get by in his current position by ingesting analgesics when necessary and by changing his work practices so that he does not do continual work above the shoulder height for prolonged periods and has other employees relieve him. In other words he swaps positions with them. By doing this he has managed to maintain his employment. The plaintiff gave evidence that hammer drilling aggravates his injuries and that is supported by both Dr Wallace and Ms Stephenson. [54] The plaintiff argues that as he is an apprentice, he has the assistance from a leading hand or supervisor at all times. The argument proceeds that once he is a tradesman -- 9 of 13 -- 10 that assistance will not always be available to him and that will disadvantage him in the workplace. I agree with this argument. [55] I find that I am satisfied on the balance of probabilities that the plaintiff will be limited to work in his current industry once he becomes a tradesman to where he is allocated an apprentice of his own and that the plaintiff would have limited capacity to undertake work in this industry on a self employed basis. This will lead to the plaintiff to being at a disadvantage in the job seeking market and therefore I am satisfied that the plaintiff is in real danger as opposed to speculative danger of suffering economic loss into the future. [56] As stated by Deane, Goudron and McHugh JJ in Malec v JC Hutton Pty Ltd2 with whom Brendon and Dawson generally agreed and which was cited Alianze v McCarthy3:- “….The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration of proof. If the law is to take account of future or hypothetical events in assessing damages it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9% - or very low - 0.1%. But unless the chance is so low as to be regarded as speculative – say less than 1% - or so high as to be practically certain – say over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. …” [57] Section 55 of the “Civil Liability Act 2003” provides:- 55 When earnings can not be precisely calculated (1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. (2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. (3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. (4) The limitation mentioned in section 54(2) applies to an award of damages under this section.4 2 (1990) 169 CLR 638 3 [2012] QCA 312 4 The limitation mentioned in section 54(2) limits the amount of an award for damages for loss of earnings to the present value of three times the average weekly earnings per week for each week of the period of the loss of earnings. -- 10 of 13 -- 11 [58] As noted in the second defendant’s submissions it has been held that section 55 does not alter the common law in this respect.5 [59] In arriving at the global award for future economic loss below I state the assumptions on which the award is based as I am required pursuant to section 55(3). They are:- 1. It is likely that the plaintiff will continue to work with Blakes until he becomes a qualified tradesman; 2. Once he becomes a qualified tradesman should he be given an apprentice to work with him he will be required to perform less manual handling; 3. If he is not given an apprentice to work with him once he becomes a qualified tradesman due to some economic reason at the company for which he works then it is likely he will be required to perform more manual handling; 4. Due to his disabilities if there is an economic downturn within the company then it is likely he would be laid off before other more able bodied persons; 5. Once in the employment market he will be disadvantaged in obtaining employment due to his disabilities; 6. It is likely that he will be disadvantaged should he ever contemplate conducting his own contract business as a tradesperson; 7. His antecedents in education befit him for work which primarily involves hard physical work. [60] In my view there is a reasonable chance of there being some periods in his life where he will be without work due to the effect of this injury. It is impossible to predict how many times this will occur throughout his working life and how long those occasions will be. [61] Doing the best I can in predicting the future and the probability of him suffering economic loss due to his injury, I am of the view that there is a reasonably high probability of him being with out work on at least one occasion for 6 months due to his injury followed by lesser probabilities of him being without work for further similar periods in the 40 or so years that he has left in his working life and there is also a reasonably high likelihood that he will have to accept less income for some periods in his working life due to his injury either in order to obtain work or by missing out on working for himself . Accordingly I award $50,000 for future economic loss. I am comforted by the decisions in Raffout v Gillard and Anor6 and Cook v Bowen and Anor7. [62] In Raffout v Gillard and Anor the plaintiff suffered a number of soft tissue injuries to his lumbar and cervical spine. The most bothersome injury was that to his neck as the performance of repetitive tasks at work caused him discomfort and pain. He suffered pain when lifting. He worked for Woolworths loading and packing. He took about four ordinary strength Panadol per week and tried a chiropractor once but could not afford the fees. Judge Robertson DCJ found that the plaintiff there had an ISV of 12 (which included a psychiatric injury as a result of the accident). His Honour stated his assumptions as being that the plaintiff would continue with the difficulties in his present employment, his antecedents befit him for work which 5 See the observations of McMeekan J in Brooks v Zamat and Anor [2011] QSC 181 at [34] 6 [2006] QDC 403 7 [2007] QDC 108 -- 11 of 13 -- 12 primarily involved hard physical work, the plaintiff would have to take sick leave and/or holidays because of his disability and as he gets older would need to take more time off, he is disadvantaged in the labour market as befits his skills and educational background and there is a genuine risk that he would lose part of his working life. His Honour allowed a $50,000 award for future economic loss inclusive of superannuation. [63] In Cook v Bowen and Anor the plaintiff suffered a whiplash injury to her cervical spine. His Honour Judge McGill DCJ found that had she suffered just the cervical spine injury he would have considered an ISV of 9 to be appropriate. He increased the ISV due to other injuries specifically in view of the significance of a shoulder injury and ultimately assessed her as having an ISV of 12. The plaintiff there was not in employment at the time of the accident having left work prior to the accident due to her pregnancy. Subsequent to the accident she had been assisting her husband with bookkeeping in his business and in the last couple of months prior to trial she had also been assisting in the installation of blinds. He found on the evidence that she was coping with her current work level of about 15 to 20 hours per week but did not think she could cope doing that work on a full time basis. She was educated to year 10 and her experience was essentially in retail work. He accepted that more physically strenuous work, or above shoulder height work would aggravate her symptoms and that as a result her capacity to do such work has been impaired. He found it likely that the plaintiff will work less in the future than would have been the case had she not suffered the accident, to some extent because she was tentative about doing work which will aggravate her symptoms but he did find it likely that she will have greater difficulty in obtaining employment with neck problems and perhaps, he said, more significantly, greater difficulty in retaining employment. She was 36 at the time and his Honour therefore found that she would probably have a potential working life of up to 30 years still ahead of her. His Honour looked at many cases where global awards for future economic loss had been made and in particular at a number where the award for future economic loss to accommodate essentially the risk of future interference in employment because of continuing neck and back pain had been made in the order of $40,000 to $60,000.8 Ultimately his Honour found that he would allow an amount of $50,000 stating “because this is not a calculated amount and is based on a relatively modest period of additional unemployment, I will not reduce it further because of contingencies or for the present receipt of future losses.” [64] These two cases are perhaps the closest to the plaintiff’s case here. The plaintiff in Raffout v Gillard was 29 at the time of the accident in February 2003 and therefore would have been around 32 years of age at the time of trial and judgment and this was similar to the plaintiff in Cook v Bowen who had around 33 years left of her working life. [65] In making the above comments I emphasise that the award of $50,000 is arrived at due to the facts of this matter. [66] Because the $50,000 award is not a calculated amount and is based on a relatively modest periods of additional unemployment and/or lessening income I will not reduce it further because of contingencies or for the present receipt of future losses. 8 at paragraph [33] -- 12 of 13 -- 13 Future Loss of Employer Funded Superannuation [67] As stated earlier in this judgment it has been agreed that this should be calculated at 9.25%, accordingly I calculate that to be $4,625.00 under this heading. The Award [68] The award is therefore as follows:- General damages $ 7,400.00 Past out of pocket expenses (including interest) $ 539.30 Past economic loss nil Future medical/special damages $ 1,180.00 Future economic loss $50,000.00 Superannuation on future economic loss $4,625.00 total $63,744.30 [69] I give judgment for the plaintiff for $63,744.30 and will hear the parties as to costs. -- 13 of 13 --