Basic v Australian Associated Motor Insurers Limited [2012] QDC 208

DISTRICT COURT OF QUEENSLAND CITATION: Basic v Australian Associated Motor Insurers Limited [2012] QDC 208 PARTIES: ANYA BASIC (Plaintiff) v AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED ABN 92004791744 (Defendant) FILE NO: BD 3227/11 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court of Queensland DELIVERED ON: 17 August 2012 DELIVERED AT: Brisbane HEARING DATE: 30 and 31 May 2012 Written submissions to 3 August 2012 JUDGE: Andrews SC, DCJ ORDER: JUDGMENT FOR THE PLAINTIFF AGAINST THE DEFENDANT IN THE SUM OF $90,703.12. CATCHWORDS: DAMAGES – personal injury – measure of damages – where after injury plaintiff returned to work full time for two years – where after two years plaintiff rejected promotion offered – where after two years plaintiff rejected full time work – where after two years plaintiff took part time work – whether lost income to trial caused by injuries – whether plaintiff capable of return to full time work – measure of damages for future economic loss Civil Liability Act 2003 (Qld) s 60 Civil Liability Regulation 2003 (Qld) Schedules 3, 4 Motor Accident Insurance Act 1994 (Qld) s 51(9A) COUNSEL: Atkinson for the plaintiff JJ Wiltshire for the defendant SOLICITORS: Murphy Schmidt for the plaintiff Bray Lawyers for the defendant -- 1 of 19 -- 2 [1] The plaintiff was injured as a passenger when two motor vehicles collided. As a result of the collision, she suffered personal injuries. Quantum of her loss is the issue. Quantum Issues [2] The quantum issues are: 1. Whether musculo-ligamentous strain injury to the cervical spine injury is chronic; 2. Whether the plaintiff sustained a chronic adjustment disorder with mixed emotions including anxiety, irritability and post traumatic stress along with a driving phobia; and 3. Quantum of damages. Facts [3] The plaintiff was born on 4 September 1976. At the time of trial, she was approaching her 36th birthday. [4] Her father worked for Qantas for 30 years, so the plaintiff had been travelling from a very young age. I infer that international travel was included. Her passion is and always has been travel. [5] In 1993 the plaintiff obtained her senior certificate and a certificate from a TAFE college in visual art and design. After she finished school she took sales jobs at a pharmacy and at Sportsgirl. In 1994 she failed the 3 subjects for which she was enrolled with Open Universities Australia. In 1996 she obtained an Advanced Diploma of Business Management from Kangaroo Point College of TAFE. [6] In about 1998 she started with Australian Associated Motor Insurers Limited (“AAMI”). She was there for about eight years, starting in customer relations and was promoted through supervising roles until in January 2005 AAMI promoted the plaintiff to “Policy Services Manager Queensland” leading a team of 1 supervisor and 15 staff. That year she began a relationship with Mr Hodson. They have since married. Her final job with AAMI as Policy Services Manager Queensland was well paid but she quit, taking a job that paid about 28% less gross income. She quit so that she could move into the travel industry. The plaintiff had no experience in travel. [7] On 18 April 2006 4 days after ceasing work with AAMI, she began at Flight Centre in sales aged 29. The products she recommended and sold most often were the trips of an adventure travel specialist, Intrepid Travel. [8] On 5 October 2007 she ceased work for Flight Centre and ten days later, aged 31, she began with Intrepid Travel. She explained “my dream job came up”. Intrepid Travel is an Australian Company which now has offices in 13 countries specialising in cultural travel throughout the world for small groups to common and uncommon destinations. [9] From 15 October 2007 until trial, the plaintiff has worked as a Business Development Manager for Intrepid Travel. At trial she continued in that role though only for two and a half days weekly and working in Intrepid Travel’s retail store for one day weekly. The job as a Business Development Manager involves promoting -- 2 of 19 -- 3 Intrepid Travel’s trips and training travel agents to recognise to whom to recommend Intrepid Travel trips and under what circumstances. The core market comprises young professionals ambitious more for cultural experiences than for luxury. The full time job required the plaintiff each week to visit agents for four days, about eight agents a day and then to do a fifth day of administration. She was looking after Queensland, northern New South Wales and Western Australia. It involved a lot of driving and visits to a lot of agents. Visiting travel agents at regular, short intervals has been her routine. Intervals of six weeks were referred to in one performance report. The intervals were of the plaintiff’s choosing. A typical day would be to drive from Brisbane to Burleigh Heads to visit a shopping centre which has some travel agencies, then to drive to the other agencies in the region, then to Robina to visit travel agencies there, then to another location and home. If she was to go to a more distant place, like Cairns, she would fly there and hire a car so that she could drive to visit agents. [10] One of her favourite parts of the job has been the trips which allow her to sample Intrepid Travel offerings. She averaged about five trips a year, mostly for free. A typical financial year involved 51 working days overseas in countries including Peru, Cambodia and Japan. Her job involved taking travel agents with her so that they could understand the trips on offer and what to recommend to their clients. Camaraderie would develop. The plaintiff found it exciting and gave evidence as though she still does. I infer that this aspect of the job continues though her work is part time. Apart from that aspect, the plaintiff regards Intrepid Travel as a sympathetic employer and as offering a stimulating and happy work environment. [11] These features partly explain why the plaintiff preferred that employment to work in the insurance industry where she could have earned a significantly higher income. The plaintiff opined that she could now earn $100,000 per annum in insurance. I infer that she intended to explain that, if able to work 5 days a week she would expect such an income in that industry. That would be more than twice the gross income she could earn in salary and bonuses working full time as a Business Development Manager for Intrepid Travel. Such an estimate by the plaintiff is not consistent with the figures for gross income appearing in her statement of loss and damage. By extrapolating for 12 months the plaintiff’s gross income with AAMI for 9.5 months it becomes about $54,400 in FYE 2006. With Flight centre in FYE 2007 it was $31,100. With Intrepid Travel in FYE 2009 it was $35,564, in FYE 2010 $37,911 and FYE 2011 $38,548. I accept that the plaintiff, if able to work five days a week, could earn significantly more in the insurance industry and find that she could have been doing so instead of working full time for less with Intrepid Travel. [12] In 2008 she completed the Young ATEC Development Program of 6 to 8 evening lectures for young people in the hospitality and tourism industry. [13] From March 2009 to April 2010 the plaintiff drove about 17,000 to 20,000 km in the course of her employment. Because of her accident she did no driving in January 2010. [14] On 29 December 2009, while on holiday and returning Yepoon, the plaintiff was injured at about 11.30 am when two motor vehicles collided. The plaintiff was a passenger in one of the vehicles, a red Mitsubishi Lancer sedan. The driver of her vehicle was Mr Hodson. The driver of the other vehicle died of the injuries he sustained as a result of the collision. -- 3 of 19 -- 4 [15] The defendant admits the collision was due to a breach of duty of care by the deceased driver. [16] As a result of the collision, the plaintiff suffered personal injuries. The defendant admits that she suffered a musculo-ligamentous strain injury to the cervical spine. The defendant admits that she suffered bruising to her right upper tibia, knee region and ankle. There was an issue as to whether she sustained a lumbar spine injury. The plaintiff makes no claim in respect of it. [17] The two vehicles were travelling in opposite directions when the deceased drove onto the incorrect side of the road and into the path of the vehicle carrying the plaintiff. The speed limit in the area was at 100 kph. It was a two-lane road, with one lane for cars travelling in each direction. The plaintiff’s car was travelling just under the speed limit. The vehicle driven by the deceased was overtaking another vehicle as it approached from the opposite direction. I am not satisfied that the plaintiff was able to accurately assess the speed of the deceased’s vehicle but am satisfied that the combined speed of approach before any braking must have been about 200 kph. The time available for braking was minimal. [18] When the vehicles collided the plaintiff’s car spun around. She was winded. She could smell what she thought was burning and wondered whether her vehicle might explode. In fact, it was likely to have been the smell of airbags deploying. She saw that her husband’s knees were lodged in, not on, the dash of the car. When he got out of the vehicle, he collapsed on the ground. The other car had overturned at about the edge of a drain. There was another woman screaming. The plaintiff hobbled over and saw two girls aged 8 and 3 in the deceased’s car. She helped the 8-year-old. She heard their father, the driver, asking for help and remembers looking at the back of his head. Because she had his daughter in her arms, she did not want the child to see him in his distress. When others arrived at the scene she asked them to look after the child. She saw the kneecaps of her husband because each knee was skinned. While she was there, she learned that the other driver died and that the condition of his daughters was deteriorating. The ambulance took 45 minutes to arrive. She was at the scene for about three and a half hours. The ambulance took her and her husband to the Bundaberg Base Hospital. Her husband was given morphine. She felt that her chest was bruised. Her knee hurt. She was limping. She asked to have an x-ray to the chest and it was done at the hospital. Staff were unable to give her necessary attention, so she asked for and received material to clean and dress her own wounds. She and her husband were at the hospital until 9 pm. [19] On 4 January 2010 the plaintiff was due to return to work. She felt that her neck was a bit restricted so she saw Dr Brady, though there was not much discomfort. [20] On 11 January 2010 she was worse and told Dr Brady. In the next two days she had physiotherapy treatments twice, and had counselling with Converge Therapy arranged for by the defendant. [21] On 13 January 2010 she returned to Dr Brady and reported improvement after the physiotherapy and acupuncture. That was her last visit to a medical practitioner for the injuries sustained in the motor vehicle accident, save for attending to obtain medico-legal reports. -- 4 of 19 -- 5 [22] She had physio treatment for her neck again on 14 and 18 January and 3 and 15 February 2010. On 18 January when she attended the physio she reported moderate neck pain and headaches. On 29 January she had her second and last counselling session with Converge Therapy arranged for by the defendant. [23] The working environment at Intrepid Travel was such that she returned to work in February 2010 without loss of pay for the time she had been absent from work since 4 January. She returned to the physio on 22 February and 2 March 2010. On the last visit in March the plaintiff reported doing yoga. She told the physio she had been feeling good until 2 days before when lifting boxes. [24] From April 2010 to March 2011 the plaintiff drove about 20,000 km in the course of her employment. [25] Since the accident, the plaintiff has suffered anxiety when driving. She has had flashbacks. If she has driven on roads with a single lane, she has become sweaty, tense and angry. One travel agency which she would ordinarily have included in her promotional visits was at Beaudesert. She delayed a visit to Beaudesert by 18 months, to avoid having to drive the single lane road which she knew to part of the route. [26] The plaintiff twice in January 2010 saw a person from Converge Therapy arranged by the defendant to assist with her anxiety. She was able to visit more often but decided not to. Self calming techniques were explained to the plaintiff. She understood them. She did not attend more than twice because she believed she understood the techniques adequately. [27] The plaintiff would manage the problem of long drives by making a stop midway. She said that she would “regroup” at the end of the trip, before meeting the agent she was to see. I infer that if she had become tense or angry while driving she would focus on being calm and sociable before meeting travel agents. I infer that it took little time or effort to “regroup” for the meetings. She tried to limit the amount of her driving. [28] On 3 August 2010 in a performance review the plaintiff noted that she did not enjoy driving as much as she used to and that after long hours and driving her whiplash flares and that it had been harder on the road in the last six months to remain motivated because she tired easily. She advised that she was looking forward to time off in September to recharge. I accept that it reflects the plaintiff’s condition then. [29] In September 2010 the plaintiff and Mr Hodson married. They had a honeymoon in Bali. The plaintiff believes that after the accident she has been tired and lethargic and a bit more irritable and that it has affected their relationship and that “apparently I'm a lot messier and don't do as much housework as I used to”. But she regards the accident and the shared near death experience as having brought her closer with her husband and that they have a solid relationship. [30] On 15 November 2010 the plaintiff commenced studying Introductory Anthropology at the start of semester 3 at the University of Southern Queensland. She gained a distinction in the subject. She was concerned at the time that she was not going to be able to continue working as she had been so she wanted to study for -- 5 of 19 -- 6 something else that still enabled her to pursue her love of travel. Anthropology and international aid are attractive to the plaintiff because they are jobs that involve field work overseas for six months of the year and lecturing at university for the balance. That was the reason she selected that subject. She wanted to be Indiana Jones from a young age. Her difficulty with the driving required in her job was a catalyst for her enrolment at that time. [31] On 16 January 2011 the plaintiff did 12 hours work cleaning up after the Brisbane flood. She woke on 17 January with a stiff neck and sought physio treatment. The physio’s note recorded a complaint that something had been building up in the last week, and that after 12 hours of flood cleaning the day before the plaintiff awoke stiff, relieved by a hot shower and Nurofen Plus. She had more treatment on 19 January 2011 when it was noted that she was a lot better but sore on the right. [32] On 21 January 2011 she saw Dr Gillett for a medico legal consultation. The plaintiff complained that she felt right paravertebral neck pain more so than left with some right interscapular pain. He recorded her complaint that the constant pain is in the right paravertebral area and that intermittently she will have pain radiating to her arms associated with pins and needles on the right side. He noted that the plaintiff’s neck had restricted range of motion and pain was recorded in the right paravertebral region and in rotation. He recorded a complaint that she gets some headaches at times. Right rotation was to 60 degrees and left rotation to 80 degrees associated with right paravertebral pain. Lateral flexion to the right was 40 degrees and to the left 30 degrees associated with right paravertebral pain. The plaintiff mentioned that she had sought physio treatment in the week before and that her neck flared after working for 12 hours cleaning up after the flood. The doctor opined that she had a chronic musculo-ligamentous strain injury involving the cervical spine with a 5 per cent impairment of whole person function. He opined that further treatment involved living with the condition, modifying activities to accommodate the condition and persisting with gentle exercise and strengthening. He opined that simple analgesics and heat packs would be required from time to time and that the plaintiff would be able to function at the level she was at that time and that recreational pursuits such as yoga would be beneficial. He noted that yoga was one of the plaintiff’s hobbies. He recommended persisting with gentle exercise and strengthening. He expected a need for simple analgesics and heat packs from time to time. He expected work discomfort to be ongoing and recommended modifying driving and office posture. To that end he recommended an ergonomic assessment of the plaintiff’s work environ. [33] There is no evidence that an ergonomic assessment was done or that the plaintiff modified her driving posture or office posture. She has worked from home and finds that the ability at home to move about when she wants and to lie on her yoga tube if she wants is helpful. [34] On 28 February 2011 the plaintiff commenced studying Communication and Scholarship at the start of semester 1 at the University of Southern Queensland. She gained a high distinction in the subject. [35] On 29 March 2011 the plaintiff was examined by Dr Foxcroft for a medico-legal report. She told Dr Foxcroft that she continued to have headaches about once a week. This was more often than Dr Gillett recorded. She noted that she believed she would not be able to maintain her current job. That was not reported to Dr -- 6 of 19 -- 7 Gillett. She noted that she was having some difficulty with her husband. There was more irritability. She was short tempered and had become distant from him. She felt emotionally numb and detached from people. She complained of being constantly tired, exhausted after a day’s work and of having poor concentration. She reported a substantial reduction in libido. She advised that she did not engage in emotional interactions, that she still saw friends occasionally but had lost friendships. With respect to her daily activities she said she tried to exercise, walking her dog and that she did yoga three times a week. She reported that she was not then involved in any regular recreational or community activities other than her yoga. On these bases Dr Foxcroft opined that the plaintiff had developed a significant adjustment disorder with mixed emotions including features of anxiety, irritability and features of post-traumatic stress following the motor vehicle accident. At the time he opined that she had: a Class 2 or mild impairment in social and recreational activities, a Class 2 impairment with social functioning and a Class 2 impairment with respect to travel by car because of marked anxiety symptoms. Dr Foxcroft opined that she had a whole person impairment according to the PIRS scale of 5 per cent, that her overall prognosis was poor and her symptoms were likely to persist. Subsequent events proved him to have been too pessimistic. [36] In the 14 months after Dr Foxcroft reported, some of the premises upon which he expressed his opinions changed. The plaintiff’s evidence was that, since the accident, she has been afflicted by stress when she is driving a vehicle. She says that when she is driving it is “white knuckle for me”. She says that she becomes tearful, sweaty, nervous, angry and irritable. While the implication in her evidence was that this was a daily and major problem, other evidence made the driving problem seem less frequent tolerable. Her references to the driving burden in performance reviews are not consistent with daily or serious anxiety. The plaintiff made no current complaint at trial of diminished libido. She regarded her relationship with her husband as solid and as strengthened by the shared experience of the accident. Her recreational pursuits at the time of trial were exemplary. Her participation in social events had increased markedly in connection with her hiking and she spent significant time with her hiking companions. She was doing two months of charity work for Trailwalker in 2012 giving the organisation a half day each week in the office. When considering the plaintiff’s impairment with respect to travel by car and its consequences for her, it is notable that she had driven at least another 20,000 kilometres in the course of work since seeing Dr Foxcroft. The plaintiff put up with work related driving of 20,000 km per year for two years after the accident despite having other career choices. She believed herself capable of working in insurance with a salary twice that of the salary and bonus package paid to her by Intrepid. After the accident, while she was working full time with Intrepid Travel she did not try returning to insurance with a substantial pay increase. There was no evidence to suggest that she could not reasonably have done so. There is no reason to think her management role in insurance involved the same driving regimen. It took more than 18 months before the plaintiff concluded that in the travel industry she would seek part time work. It is not all driving which causes her anxiety. The plaintiff regards the opportunity for some driving and visiting agents as a welcome chance to mobilise and allay neck symptoms. When considering the impact upon the plaintiff’s earning capacity of her driving phobia, it is instructive that she persevered for two years, when she had an attractive curriculum vitae. The phobia damaged her enjoyment of the driving, but for two years it did not remove her capacity to perform it and the phobia did not cause her to look for a better paid -- 7 of 19 -- 8 job in insurance. When considering the impairment in the plaintiff’s social functioning and its consequences for her one should recall that socially, by spending 50 days a year travelling overseas enjoying camaraderie with the travel agents who accompanied her, she was functioning at a high level and enjoying it. [37] On 18 July 2011 the plaintiff commenced studying Communication and Scholarship at the start of semester 2 at the University of Southern Queensland but deferred the examination. [38] In October 2011 the plaintiff explained her career plans in one of her performance reviews. It was not clear what date the review document was prepared but it seems likely to have been in late 2011 and probably in October. She revealed that she still did not enjoy driving, that she was going to try to hold out for one and a half to two years “if I can bear staying in the role (not that its terrible – I’m pretty exhausted and would love something new to challenge me)”. She explained that in 1.5 to 2 years she and her husband would like to take three to six months off work to travel in South East Asia, mainly Indonesia and planned then to look for graduate jobs for her husband in Canberra, or if he finds something in Brisbane they would stay here and the plaintiff would probably look at part-time work so she can study full-time with an end goal to move to Malaysia or Indonesia. When asked to provide suggestions for what could make work easier the plaintiff responded: “Change of roles temporarily? Less ground to cover.” [39] On 31 October 2011 the plaintiff had her last physiotherapy treatment in relation to her neck. The complaint was that her neck stiffened up after sleeping on a flight. She has since attended physios but for reasons related to her hiking in 2012. [40] The plaintiff told her manager in November 2011 that she wanted to resign on 23 November 2011 but she re-considered when her employer intimated she would be offered the position of National Sales Manager from February 2012. [41] She attended the Intrepid Travel Sales Conference in Melbourne in November 2012 and at that conference on 28 November 2011 the new role was announced. The role of National Sales Manager was so new that the job description was not written or finalised. It would have meant an increase in salary and bonuses from about $43,500 per annum plus bonuses and super to about $65,000 plus bonuses and super. The plaintiff decided not to resign. At the conference which lasted a week, the plaintiff was unable to move around and found that difficult. Ideally, she regularly moves about to keep symptoms at bay. At the conference she asked her managing director if Intrepid Travel would be opening an office in Indonesia soon as she believed she would be the best person to open it. [42] In December 2011, the plaintiff and three friends met to arrange to plan for a 100 km walk for charity. The called themselves the Intrepidettes. Walking subsequently caused injuries requiring several visits to the physio but it does not aggravate the plaintiff’s orthopaedic injury. It is sensible therapy. [43] In January 2012 the Intrepidettes had their first training walk. [44] The plaintiff was enrolled to study Indonesian 1A at the University of Southern Queensland in semester 1 starting in late February 2012. She did not commence. By trial, she was unaware that she had enrolled. I assume she had forgotten. -- 8 of 19 -- 9 [45] By 6 February 2012 when the plaintiff was to begin as National Sales Manager the job had become more demanding. Initial discussions in November led the plaintiff to expect travel by flying, mostly to Sydney, Melbourne and Perth, and taking taxis and to be relieved from driving to agencies. But in February 2012 the plaintiff was advised that she would need to develop a strategy to ease out of her current role as business development manager, and would, effectively, need to convince one of the other state business development managers to cover her regional visits. She considered that was impractical. In the short term she was required to perform her existing role as business development manager in addition to the additional responsibilities of National Business Development Manger. That meant her existing driving requirements would continue indefinitely. Bearing in mind that she was driving 20,000 km per year, visiting and conferring with travel agents, the prospect of indefinitely performing some of the old role with the new was unattractive to her. She advised her intention to resign on 16 March 2012. [46] Her manager’s evidence was to a different effect. Ms Shepley said the new role involved a lot of travel and involved overseeing the business development managers around the country. She reported that the plaintiff was unwilling to take the job because of the amount of travel involved. It is possible that the travel Ms Shepley wrote of included the driving in the old role of business development manager. This was not explored. The plaintiff gave evidence that her husband might get sick of her travel one day. Regular interstate travel by one spouse would be an inconvenient and disappointing feature of employment for many newly married couples. I expect that it was a feature of the new position that concerned the plaintiff and all the more so if she was still travelling and driving in her old role. [47] On 8 February 2012 the plaintiff posted a note on facebook that she is “no spring chicken” and that studying one subject at a time was taking forever. [48] The plaintiff and her husband were each learning Indonesian informally by the time of trial. Her husband was then studying security, terrorism and counter-terrorism through Murdoch University. [49] When the plaintiff gave notice in February 2012, there was no part time position available for her. Her employer, knowing of her desire to work part time, and wanting to keep the plaintiff’s services, created a part time position for her. [50] On 18 February 2012 the Intrepidettes walked 15 km in 4 hours. [51] On 21 February 2012 the plaintiff began boot camp training. [52] On 25 February 2012 the plaintiff attended gym and body class. [53] On 27 February 2012 it was the start of a three month university term for the plaintiff with Open Universities Australia. She was enrolled through Murdoch University in two subjects: Introduction to Sustainable development and in Asia- Pacific in the Global System. Those two subjects are equivalent to full time study. Like Mr Hodson, she was also studying Indonesian informally. [54] On 3 March 2012 the Intrepidettes walked 15 km in 4 hours. [55] On 10 March 2012 the Intrepidettes walked 26 km in 7 hours. -- 9 of 19 -- 10 [56] On 16 March 2012 the plaintiff resigned from full time work and commenced to work part time – for 2.5 days per week, Tuesdays, Wednesdays and in the morning on Thursdays. It was the same kind of work she had been doing, but halved. Her salary fell proportionately to $21,747 per annum gross plus bonuses and super. [57] The plaintiff found 2.5 days per week manageable. So, when her employer advised that there was an opportunity for a day’s work each week at a retail store in New Farm the plaintiff accepted it. She was also motivated by the need for more money for the mortgage. At trial she was finding that workload manageable. She said she was noticing it by the end of the last day. [58] In April 2012 the plaintiff was working 3.5 days each week when she took on charitable work for half a day each week for a short period. It was office work and was to be for about 2 months. She would finish with Intrepid Travel at lunchtime on Thursdays and finish in the Trailwalker office. Effectively, she was working 4 days each week. She was managing but looking forward to mid June when the charitable work would end and she would have more time. As a full time student and with such time consuming leisure activities, that was understandable. Impacts on Earning Capacity [59] The plaintiff’s choices are instructive. She left the insurance industry to go into the travel industry despite the fact that it meant she was earning much less. Work in the travel industry had compensations she regarded as more important than the money lost. She travelled each year to foreign places with travel agents and enjoyed it very much. She travelled overseas about five times a year for work. Her husband sometimes travelled overseas with her. At the least, I infer that her employment resulted in some cost savings for her husband if they travelled overseas together. In the context of explaining her interest in studying anthropology she said she always wanted to be “Indiana Jones”. I infer she meant that she has long found attractive the ideas of work outside an office, of adventure, of other cultures, of change and travel and that a qualification in anthropology would give her a chance for a career with those attributes. The plaintiff is also attracted to charitable work notwithstanding that it may be less financially rewarding. It seems that Mr Hodson and the plaintiff share an itinerant spirit, an interest in living in Indonesia or Malaysia and interests in further study and career change. The plaintiff has created a career path to pursue her ambitious preferences for an interesting and fulfilling life. She continues to pursue it with her husband and she is not presently interested to chase the highest income she can. [60] When the plaintiff advised her employer that she wished to work part-time it coincided with a period when she commenced further study. It was a few months after she had suggested in a performance review that a temporary change of roles would make work more enjoyable. It is too simplistic to conclude that the plaintiff’s rejection of full-time employment in favour of part-time employment establishes that the plaintiff has temporarily or permanently lost her capacity for full-time employment of the type she rejected. It is too simplistic to conclude that the plaintiff’s refusal to accept a promotion and to maintain full-time employment was caused only her injuries. [61] The plaintiff’s rejection of a promotion and choice of part time work in 2012 is urged by the plaintiff’s counsel as proof of impaired earning capacity. It is -- 10 of 19 -- 11 consistent with impaired earning capacity. But it is also consistent with wanting a temporary break from full time employment and with a desire to study and take two subjects a term, and with pursuit of a qualification in anthropology, and with creating a chance for another career which allows for her desire for travel and adventure by equipping her to work six months a year in Malaysia or Indonesia. The plaintiff’s husband has not been employed full time since the accident. He too is studying. [62] One explanation the plaintiff gave for rejecting full-time employment was that she would come home and be too tired to do anything, or to socialise at night or even at weekends. The plaintiff gave evidence in chief as if the situation continued to the time of trial. Cross-examination with the benefit of facebook pages revealed the plaintiff’s life in the months before trial to be quite social and very active. Training began when the plaintiff was employed full time. The plaintiff accepted that the lack of motivation at weekends had not bothered her for six months. [63] The plaintiff sustained a chronic adjustment disorder with mixed emotions including anxiety, irritability and post traumatic stress along with a driving phobia. Dr Foxcroft explained that there was a “feedback loop” in the way pain and a psychiatric condition aggravate each other. He explained this further in his oral testimony: “…when someone …has chronic pain, that’s a very powerful clearing factor or maintaining factor for depressive symptoms and other psychotic conditions. And then depression itself – depression and anxiety impair the individual’s capacity to cope with chronic pain so- obviously by that – those descriptors can feed back into one another.” [64] In mid to late 2011, the orthopaedic and psychiatric injuries combined to deflate the plaintiff, and prompted her to apply in 2011 to reduce her workload. [65] I accept that there were times when the plaintiff’s fatigue was such that it caused her to consider reducing her workload to part time combined with tertiary study. I accept that the accident was a significant cause of that fatigue. I consider that at those times it was a reasonable plan. I am not satisfied that her fatigue was continuous or that it persisted into 2012. [66] Her training regime in 2012 is not consistent with the plaintiff’s fatigue and sadness continuing into 2012. The evidence of training with three friends outside work hours for a 100km walk, of cycling, gym, boot camp, yoga three nights a week and charity work on Thursdays in not consistent with a person whose injury still fatigues her too much to work five days. That evidence reveals that in 2012 she has no longer been too tired to do anything, or to socialise at night or even at weekends. The voluntary charitable work for Trailwalker was in an office on Thursday afternoons at times when the plaintiff was in employment for three and a half days each week from Monday to Thursday lunchtime. At the time of giving evidence she was effectively working four days each week, studying full time, training strenuously and otherwise very physically active. I am not satisfied that the plaintiff’s fatigue has continued in 2012, or that it has troubled her in 2012 to such an extent that it causes her to work less than the equivalent of four days a week while she also studied and trained. -- 11 of 19 -- 12 [67] In evidence the plaintiff said that the neck pain started at the top of her spine and caused her difficulties with movement; that it “does click and crack all the time” and that it sometimes “completely jams up”. She said that it is particularly bad when she is stationary or where she maintains one position: it feels like it “jars” if she is in one spot for too long. She said that it results in headaches which wrap around her neck and over her skull, and afflict her once or twice every week. She said that, in consequence of her pain, she tends to be tired, irritable, lacking in concentration, foggy and less able to sustain personal relationships. She also gave evidence of a general sadness that had afflicted her periodically since the accident. “I get headaches all the time. I'm tired and lethargic.” The plaintiff’s evidence was expressed in the present tense as though her symptoms have been continual. By the time of trial the plaintiff was commendably active. It was not reasonable to classify her as lethargic. I regard her evidence of her symptoms as an accurate description of the high water mark of how things have sometimes been. I am not satisfied that it as an accurate description of how things were by the time of trial. I am not satisfied that the frequency of her symptoms has been constant or unimproved by her therapy strategies. Another example is her evidence of headaches “all the time” and once or twice every week. That was not consistent with performance review comments by the plaintiff, or her report to Dr Gillett about headaches or her explanation of the benefit of yoga that if she does not do yoga her neck starts to seize and headaches persist. The plaintiff explained that she does yoga three times a week. It is a reasonable inference that she keeps headaches at bay. Her evidence of the continuity of headaches was not consistent with her evidence that in the 28 months to trial she has had a couple of days off work due to headaches and neck pain. [68] The plaintiff’s case is that her condition has reached a plateau. I accept that as generally accurate, though it seems likely that the plaintiff was more despondent in late 2011 until the chance of a new job with better conditions and pay emerged. I find that her physical and psychological symptoms were much improved by mid 2012. [69] When reviewing the psychiatric evidence, it is noteworthy that the psychiatrist in expressing his written opinion did not know of subsequent changes being improvements in the plaintiff’s marital relationship, her increased socialising with her training partners and for fundraising events and her enthusiastic involvement in regular and strenuous physical activity. [70] The plaintiff’s psychiatric condition, having improved in 2012 was reassessed in the witness box as having a PIRS assessment of 4%. It is at the lower end of the range for item 12 in schedule 4. [71] I find that it was reasonable because of her symptoms in 2011 for the plaintiff to request a temporary reduction in her workload in late 2011 and that her injuries were a substantial cause of her request. The request produced no financial loss in 2011 because the plaintiff was persuaded to remain in her job by the prospect of a new position becoming available in 2012 [72] When the new position was offered to the plaintiff in 2012, because it was combined with unpleasant driving aspects of her old position the combination was at least as onerous for the plaintiff as the old job from which she wanted relief. I regard it as reasonable for the plaintiff in February 2012 because of her recent experience with symptoms to have rejected the promotion in the combined form in -- 12 of 19 -- 13 which it was offered. I regard her injuries as a substantial cause for her rejection of that promotion. [73] When the plaintiff was offered employment of 2.5 days per week in February 2012, to start in March 2012, it is probable that her condition had improved from its state in 2011. Despite the improvement I regard it as reasonable for the plaintiff, because of her recent experience with symptoms, to have accepted the part time position with Intrepid Travel. Hypothetically, she might have pursued less onerous full time employment elsewhere and with her CV would have been an attractive applicant. I regard the injuries as a substantial cause for her rejection of that alternative. It follows that by accepting part time employment she has suffered economic loss as a result of the accident. [74] The plaintiff’s improvements in 2012 have seen her accept 3.5 days work each week instead of 2.5. Then she took on a half day of charity work each week. While she was looking forward to the end of the charity work I find that it was primarily because of the half day which the charity work took from her rather than because of aggravated symptoms. [75] The plaintiff maintained her reduced workload at the time of trial. There were several possible motives for the plaintiff to maintain her reduced workload despite the loss of income. The plaintiff’s attraction to studying full time to create the chance of a stimulating career overseas related to anthropology is one possibility. The plaintiff’s fear of jeopardising a good relationship in her marriage is another possibility. The impending trial is another possibility. While satisfied that the plaintiff’s employment choices in 2012 before trial were caused by her injuries I am not satisfied on the balance of probabilities that the orthopaedic and psychiatric injuries prevent the plaintiff from returning to full time employment. I am satisfied they each had previously contributed to a waning enjoyment with aspects of the job and that similar work would become similarly unsatisfying because of her injuries. However, I am not satisfied that they rendered the plaintiff incapable of that full time work or of a return to similar work full time after her temporary break. [76] Her employment at trial for 3.5 days each week included 2.5 days per week in her old role as a Business Development Manager. I infer that for two days each week she continued to drive to visit eight agencies a day at a rate of about 10,000 km per annum. [77] I am not satisfied that the plaintiff’s injuries have made her incapable of returning to work full time in office work or of returning to employment that involves driving 20,000 km per year. I accept that she needs to make postural adjustments, that she should mobilise regularly in office work, that ideally she should be in an office that permitted her to use her yoga aids if she chooses, that she would sensibly choose to limit her driving on the kinds of roads that most disturb her, that she would sensibly seek to drive less and that the symptoms of her injuries will continue to cause her to take a day off work on occasion as they did in the two years to April 2012. For these reasons her choices of available employment are affected and her earning capacity is affected. The plaintiff was caused by her injuries to seek in 2011 a temporary respite from full time work. When the work offered in 2012 involved an increase in duties in spite of her request and expectation of a decrease in duties she rejected the promotion and full time work and took part time work instead. The injuries were a substantial cause of those decisions. I accept that there may be some risk of that -- 13 of 19 -- 14 again in her working life despite her failure to persuade me that she is unable to resume full time work now. General Damages [78] Section 6 of the Civil Liability Regulation 2003 (Qld) requires that general damages be assessed by reference to Schedule 4. Schedule 3 Regulation 4 requires that the Court identify the dominant injury and then consider giving uplift on account of any further injury (which uplift is rarely to be more than 25%). [79] I accept the submission of each party that the dominant injury is the musculo- ligamentous soft tissue injury to the cervical spine. I find that the musculo- ligamentous strain injury to the cervical spine injury is chronic. This is covered by item 88 in Schedule 4 and has an ISV of 5 to 10. Dr Gillett found that there was a 5% impairment of the whole person owing to the neck injury and his evidence was not challenged. The injury, being a 5% impairment, is to be contrasted with an 8% whole person impairment which is also accommodated in item 88. Notwithstanding her discomfort the plaintiff maintained full time employment for two years, sought only limited physiotherapy, sought no medical treatment and by 2012 had increased her study load and exercise routines to an impressive extent. [80] The court may assess the ISV for the two injuries as being higher in the range of ISVs for the dominant injury. That seems appropriate in this case because of the way the two injuries can and have combined. I assess the ISV as 10. [81] The defendant submitted that there was no scope for uplift and that each injury on its own would be assessed at the minor end of its range. The plaintiff submitted that uplift should be allowed on the basis that: 1. According to Dr Foxcroft, the Plaintiff also suffers from an anxiety and elements of post traumatic stress disorder related to traffic; 2. According to Dr Foxcroft, there are other elements of depression which are referable at least in part to the physical pain; 3. The Plaintiff suffered injuries to her sternum, her right knee, right shin and right ankle in the accident, and it seems that she has been left with a “niggle” in the right knee; 4. The Plaintiff suffers from ongoing pain (which is not addressed in Dr Gillett’s assessment); and 5. The circumstances of the accident were particularly traumatic1. [82] I reject the submission that these features justify uplift. The items numbered 1, 2 and 5 in the plaintiff’s submission are adequately accounted for in selecting an ISV of 10 which amounts to $11,000.00. Interest on General Damages [83] An award of interest is precluded by s 60 of the Civil Liability Act 2003 (Qld). 1 See Schedule 3, Regulation 9: In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case. -- 14 of 19 -- 15 Out of Pocket Expenses [84] The plaintiff incurred a sum of $1,964.00 on account of physiotherapy, acupuncture and massage. The defendant paid $925.00 on that account so that the amount outstanding is $1,037.00. The plaintiff submits that an award should be made for the full amount (and then a refund granted): section 51(9A) of the Motor Accident Insurance Act 1994 (Qld). The defendant does not contend otherwise. [85] Travel expenses are agreed at $211.90. [86] On account of pharmaceuticals, the parties are agreed at $219.54. [87] The total allowed is $2,395.44 on the premise that the plaintiff should refund $925.00 of that amount. Interest on out of pocket expenses [88] The defence accepts a liability in this respect of $75.81. The plaintiff made no submission in respect of it. I allow it. Future Expenses [89] The Plaintiff also claims a sum on account of yoga. She said that she has been able to obtain discount rates so that she pays approximately $500 per year in relation to yoga. On that basis, the Plaintiff claims a sum of approximately $9,548.00 by the Amended Statement of Claim filed herein, being based on a calculation that the payments will continue for her lifespan. [90] The plaintiff submitted that the expense for yoga would be allowed because the evidence2 establishes that it is a direct consequence of the accident in that: 1. Prior to the accident, the Plaintiff attended yoga no more than once; 2. She he has been attending two to three times per week on average since the accident; 3. Dr Gillett has specifically opined that “recreational pursuits such as yoga would be beneficial for [the Plaintiff’s] injuries”3; 4. The yoga has relieved the Plaintiff’s symptoms so that she said: “I find its really useful because it gives me that mobility and helps with the pain”; 5. If the Plaintiff does not go to yoga, she notices that “my neck really starts to seize up and the headaches persist”. [91] I accept that the evidence establishes those matters and that yoga is an appropriate expense for this plaintiff to reduce the risk of loss of income and to alleviate symptoms. The plaintiff claims $9,548.00 based on a calculation that the payments will continue for her lifespan. I allow it. [92] The Plaintiff makes a claim for future medical expenses of $7,000.00. That sum is based on expenses recommended in the reports of Drs Foxcroft and Gillett. 2 T1-21 to T1-22. 3 See page 5 in Dr Gillett’s report at Exhibit 2. -- 15 of 19 -- 16 [93] The claim so far as it relates to the ergonomic assessment is based on the evidence of the Plaintiff in the Statement of Loss and Damage and the testimony of the Plaintiff and the specialists. [94] The Plaintiff claims the cost relating to the psychiatric treatment at $300.00 per session for 16 sessions at a cost of $4,800.00. I accept the plaintiff’s evidence that she will undertake it. I allow it. The Plaintiff claims the cost of an ergonomic assessment of $2,200.00 inclusive of GST. One is appropriate. I allow it. The Plaintiff claims the cost of future travelling expenses in the sum of $1,424.41. The claim is based on a false premise that the plaintiff will not combine trips to the chemist with other shopping and that trips to the chemist will be for the sole purpose of purchasing Nurofen Plus and heat packs. I allow $324.48 being sufficient for visits to the specialist for behavioural therapy. The Plaintiff claims $1,141.95 for future pharmaceutical expenses. That sum was not challenged and I allow it. [95] Those components of future expenses are assessed at $8,466.43 and with $9,548 for yoga make $18,014.43 in total. Griffiths v Kerkemeyer Damages [96] The Plaintiff makes no claim in this regard. Past Economic Loss [97] The plaintiff’s counsel submitted that her pay slips show that she was receiving $916.84 nett per week. That does not accord with the evidence in her signed statement of loss and damage. This was the nett weekly income for the National Industry Sales Manager position she rejected. I accept that she would have taken the National Industry Sales Manager position and earned about $67,500 per annum for gross wages and bonuses. I calculate that annual income to be about $1019.29 nett weekly. She commenced to work part-time from 16 March 2012. The plaintiff’s counsel submitted that if the plaintiff had continued to work full time from 16 March 2012 to the time of trial, 30 May, 2012, she would have made a sum of $9,168.40 but that, since 16 March 2012, the Plaintiff received approximately $4,560.00 to trial. While the calculation was not explained, it was not contradicted by the defence. The plaintiff submits that makes for a loss of wages in the order of $4,608.00 to trial. I will accept that. Since trial the plaintiff’s loss would be the difference between $1019.29 and her net income for 3.5 days per week plus bonuses at her original pay rate. I estimate that working 3.5 days per week at the salary and bonus rate the plaintiff had been earning as a Business Development Manager at about $35,000 per annum gross or $610.10 nett per week the difference was about $409.19 per week nett. The plaintiff’s case as pleaded and calculated in her statement of loss and damage did not include a claim for loss of wages other than lost bonuses. After argument, I ruled that the plaintiff could not include a claim for loss of wages. The amount assessed should not be included in the plaintiff’s damages. [98] The plaintiff has not satisfied me that she is unable to return to full time employment. I am satisfied that until now the plaintiff’s choice of work at 3.5 days per week was substantially caused by her injuries. It is about 8 weeks since trial. The plaintiff’s loss for the period since trial is about 8 times her weekly deficiency -- 16 of 19 -- 17 in nett pay being $3,273.52. Because I ruled that the plaintiff could not include a claim for loss of wages, this potential claim was not in issue and has not been the subject of a submission by the defence. The amount assessed should not be included in the plaintiff’s damages. [99] The plaintiff maintained in evidence that she received regular bonuses and that the quantum of those bonuses has suffered by reason of her injuries. The Plaintiff maintained that there is a correlation between the number of travel agents she attended, on the one hand, and the sales she made on the other hand. She also noted that, since the time of the accident, her visits to travel agents have declined by a factor in the order of 36%. It is submitted for her that the Court should calculate a global sum for bonuses in the order of $3,000.00 and that this amount is equivalent to 25% of the bonuses the Plaintiff in fact received and that it is generally consistent with the decline in visits by 36%. [100] The plaintiff’s visits to agents declined annually when looking at calendar years 2008 and following. The decline began before the injury. The plaintiff’s tactic after the accident has increasingly been to concentrate visits on the most promising agents. Her bonuses increased despite declining visits. I am not satisfied on the balance of probabilities that the plaintiff has established a loss of bonus income between the time of the accident and commencing part time work. Since commencing part time work I have allowed for bonus income lost in the position of National Industry Sales Manager. [101] The parties submitted that I should correct a slip and incorporate changes to my judgment and reasons to achieve this. The slip relates to calculation of loss of bonus income since the time the plaintiff commenced part time work. I refer to the bonus income lost because the plaintiff rejected promotion to the position of National Industry Sales Manager. [102] The period in question is from 16 March 2012 for the period of 11 weeks until the hearing ended and a further 8 weeks thereafter. If the plaintiff had been working as a National Industry Sales Manager she would have earned $7500.00 gross pa for bonuses. That would have been $2,732.88 gross for 19 weeks or about $143.83 per week gross. Instead, during that period from 16 March she worked as business development manager for 2.5 days per week which required her to travel around Brisbane. She maintained client relationships with regional clients by phone and webinar. This would have reduced her capacity to earn bonus income. I am satisfied that her capacity to earn bonus income at this time was reduced by half. Though she increased her work from 2.5 to 3.5 days each week on 11 May 2012, the extra day was work in a retail shop training retail staff. I am satisfied that her capacity to earn bonus income from 11 May continued to be reduced by half. The rate at which she had earned bonuses as a full time development manager cannot reasonably be assessed by looking at her last payment in April 2012. Her statement of loss and damage (Ex 9) shows that quarterly payments were neither quarterly nor consistent. For the period of 25 months from March 2010 to April 2012 inclusive the plaintiff earned $7,350.08 gross or $69 per week gross. The defendant’s counsel urged me to find that she had earned for 117 weeks since the accident at about $63 per week gross. Averaging seems a reasonable approach because the last bonus paid was uncharacteristically high. It seems reasonable to expect that it was calculated on an uncharacteristic basis. As well, it is reasonable to assume that efforts made in one quarter to encourage sales would not necessarily be reflected in bonus income in the -- 17 of 19 -- 18 same quarter. The plaintiff continued to earn bonuses when working 2.5 and 3.5 days per week in 2012. At her reduced capacity due to her reduced days, the bonuses would have been earned at about half her average rate of $69 per week gross. It is reasonable to assume that the plaintiff earned bonuses at a rate of about $35 per week gross. When contrasting that with the bonuses she would have earned as a National Industry Sales Manager working 5 days per week, her weekly loss was $108.83 gross and $2,067.77 gross for the19 weeks being $1,447.44 net. [103] The total for past economic loss was assessed as $7,881.52. Of that sum only the lost bonus income from 16 March 2012 can be awarded due to the ruling I made during the trial about the claim for lost wages. The damages for this component for bonuses are assessed at $1,447.44. [104] I am not satisfied by the evidence that the plaintiff’s choice to continue to work less than 5 days a week, if she so chooses, is sufficiently connected to her injuries to be caused by them. It is not part of the plaintiff’s case that she has not been unable to find available full time work. Rather her case has been based upon being incapacitated for full time work. Her counsel submitted and I accept: “It is clear on the evidence that the Plaintiff has the necessary skills and drive to be promoted with her current employer or to obtain employment within the insurance sector. The latter employment is lucrative.” [105] When considering future economic loss, and her diminished earning capacity, I am not satisfied that in the short term there is a need to include a component for the plaintiff’s currently reduced working week of 3.5 days. Future Economic Loss [106] For the reasons summarised at paragraph [77] I find that the plaintiff’s earning capacity is impaired. I am unable to calculate it by reference to a weekly loss because the plaintiff is capable currently of a return to full time work. Having regard to the plaintiff’s age, her exemplary work history, her recent need to take a temporary reduction from full time work despite the pay increase offered with it, and having regard to her future working life of about another 29 years I am satisfied that the plaintiff will suffer loss. She is properly compensated with an amount which is approximately equivalent to a year’s nett income at the rate she would earn if employed as a National Industry Sales Manager. I find a loss of $53,000.00. [107] Loss of future superannuation at 9% of $53,000.00 is assessed at $4,770.00 -- 18 of 19 -- 19 Conclusion [108] The plaintiff’s damages are assessed as: 1. Future economic loss $53,000.00 2. Future superannuation $4,770.00 3. Past economic loss $1,447.44 4. Future expenses $18,014.43 5. Out of pocket expenses: $2,395.44 Plaintiff should refund $925.00 of that amount $2,395.44 6. Interest on out of pocket expenses $75.81 7. General damages $11,000.00 TOTAL $90,703.12 [109] I heard the parties as to costs on 27 July. I have since made amendments to my reasons previously published to the parties on 27 July to correct slips brought to my attention by email dated 3 August from the defendant’s solicitors. I will hear the parties further as to costs if they request it. -- 19 of 19 --