Bauer v Clay - [2025] QSC 114

SUPREME COURT OF QUEENSLAND

CITATION:

Bauer v Clay [2025] QSC 114

PARTIES:

JACK JULIAN RONALD BAUER

(plaintiff)

v
CLAYTON JOHN JOSEPH CLAY

(first defendant)

TRANSPORT ACCIDENT COMMISSION
ABN 22 033 947 623

(second defendant)

FILE NO/S:

S 280 of 2024

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

22 May 2025

DELIVERED AT:

Rockhampton

HEARING DATE:

12, 13, 14 May 2025

JUDGE:

Crow J

ORDER:

Judgment for the plaintiff against the second defendant for $602,008.14

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff was involved in a motor vehicle accident – whether the plaintiff suffered injury and damages in the motor vehicle accident

COUNSEL:

S. J. Deaves KC with E. Jensen for the plaintiff

G. C. O’Driscoll for the defendants

SOLICITORS:

Travis Schultz and Partners for the plaintiff

Quinlan Miller Treston Solicitors for the defendants

Introduction

The plaintiff is currently 22 years of age, having been born on 17 February 2003. On 19 March 2022, the plaintiff was injured in a motor vehicle accident in Bundaberg. Liability has been admitted.
At the commencement of the trial, the parties identified three issues. Firstly, whether the plaintiff suffered any injury in the motor vehicle accident. Secondly, the extent of the injury sustained in the motor vehicle accident. Third, the proper quantification of damages flowing from the injuries properly assessed. After the impressive evidence brought from the plaintiff and the witnesses called in the plaintiff's case, the defendants properly conceded the first issue. There are many matters of fact and matters of expert opinion which affect the outcome of the second and third issues.
The Accident
At about 7:00 pm on 19 March 2022, Mr Bauer was driving his Subaru WRX in a westerly direction along Princess Street, Bundaberg. Princess Street is a busy thoroughfare which connects the City of Bundaberg to Bargara. What occurred in the accident is best observed in Exhibit 3, the police dashcam footage of the accident. What the footage shows is that a marked police vehicle was driving from the City of Bundaberg along Princess Street towards Bargara. Police observed a Subaru Impreza driving in the opposite direction along Princess Street, that is, from Bargara towards the City of Bundaberg.
Police attempted to intercept the Subaru Impreza by performing a U-turn. Police then activated emergency lights and sirens and set off in pursuit of the Subaru Impreza. The dashcam footage shows the police vehicle well exceeding 100 km/h in a 60-kilometre zone. The dashcam footage shows the Subaru Impreza vehicle dodging and weaving around cars and accelerating away from the police vehicle. After narrowly missing several vehicles, the first defendant, driving the Subaru Impreza, attempted to overtake the plaintiff driving his Subaru WRX near the intersection of Bunya Street and Princess Street.
The overtaking manoeuvre on this occasion, however, was not successful, and the Subaru Impreza drove at high speed into the driver's side door of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bauer v Clay

Details

AGLC: Bauer v Clay [2025] QSC 114
Case: [2025] QSC 114
Decision Date: 22 May 2025

CaseChat Overview and Summary

Bauer v Clay is a case where the plaintiff was involved in a motor vehicle accident and sought damages for personal injury. The defendant contested whether the plaintiff suffered any injury and the extent of any damages resulting from the accident. The court was tasked with assessing the credibility of the evidence provided by both parties, including expert medical opinions and observations by the plaintiff’s employer. The central issue was determining the nature and extent of the injuries sustained by the plaintiff and attributing those injuries to the motor vehicle accident.

The court evaluated the medical evidence presented by Dr Mackenzie and Dr Journeaux, two orthopaedic surgeons who examined the plaintiff at different times. Dr Mackenzie assessed an 8% impairment of the cervical spine, while Dr Journeaux initially opined that the plaintiff’s injuries were work-related but later revised his opinion to include a diagnosis of a musculoligamentous injury caused by the accident. The court accepted the evidence of Dr Mackenzie and the revised opinion of Dr Journeaux, concluding that the plaintiff suffered a soft tissue musculoligamentous injury to his cervical spine as a result of the motor vehicle accident. The court determined that this injury warranted an 8% whole person impairment rating.

The court further assessed the plaintiff’s claim for damages. It allowed $4,000 for future special damages, representing the full amount of physiotherapy costs and half of the travel expenses claimed. The total award was quantified at $602,008.14, which included general damages for the cervical spine injury and past economic loss. The court made a final order granting judgment to the plaintiff against the defendant for the awarded amount.

Orders

Orders of the court

Judgment for the plaintiff against the second defendant for $602,008.14

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Lovett also observed that after the accident, the plaintiff could not perform his former tasks, such as carrying heavy building materials up the slope. Mr Lovett observed that after the accident, there were days the plaintiff did not come to work, and some days the plaintiff would go home early. I accept Mr Lovett's evidence[20] the plaintiff made no complaints of pain to him at all, but he did occasionally see the plaintiff holding his neck, which he did not see before the motor vehicle accident. Mr Lovett explained that in order to get into a site project manager type role, required at least 30 years of experience as well as interpersonal skills.[20]T2-19.EXPERT MEDICAL EVIDENCE Dr Mackenzie, orthopaedic surgeon, examined the plaintiff on 17 April 2023, and Dr Journeaux, orthopaedic surgeon, examined the plaintiff on 6 June 2023. At the time when Dr Mackenzie examined the plaintiff, the plaintiff had not undertaken any physiotherapy treatment, as the plaintiff's first physiotherapy treatment, as noted above, was on 19 April 2023. When Dr Journeaux examined the plaintiff, he had undergone four physiotherapy treatments, with the physiotherapy treatment of 24 May 2023 recording some improvement. There is a vast difference in the written opinions expressed in Exhibit 11, Dr Mackenzie's report, and Exhibit 18, Dr Journeaux's report. Dr Journeaux had, however, not unreasonably, based his report upon the factual premise as recorded in the notes of 25 March 2022, that the plaintiff had not suffered physical injury as a result of the motor vehicle accident, but only a psychological injury in the form of an adjustment disorder with anxiety. The opinion expressed in Dr Journeaux's report of 6 June 2023 is that the plaintiff did suffer from a musculoligamentous sprain/strain type injury or condition of the cervical spine. However, in the absence of complaint of, or onset of symptoms at the time of the accident and with the complaint of pain being reported as being related to work, Dr Journeaux opined that the plaintiff's employment was a significant factor in the diagnosed cervical injury. On the truthful factual basis, as discussed above, that the plaintiff had, since very soon after the motor vehicle accident, suffered from neck, upper back pain, shoulder pain, and headaches, Dr Journeaux forthrightly and immediately changed his opinion to support a diagnosis of a musculoligamentous injury being caused by the motor vehicle accident. I accept the opinions of Dr Mackenzie and Dr Journeaux, based on the correct factual premise that as a result of the motor vehicle accident, the plaintiff has suffered from a soft tissue musculoligamentous type injury to his cervical spine as a result of the motor vehicle accident. Dr Mackenzie had assessed an 8% impairment of the cervical spine using the DRE II classification of AMA 5. Dr Journeaux had not made an assessment of permanent impairment given his causation opinion. However, as demonstrated in cross-examination, due to the restricted range of active movement recorded in Dr Journeaux's report, had Dr Journeaux used the range of motion assessment in AMA 5, he would also have quantified an 8% whole person impairment rating in respect of the cervical spine injury. I conclude in respect of the cervical spine injury, the injury is properly assessed at 8% whole person impairment.

Decision

Reasons for decision

I will allow $4,000 for future special damages, being the full amount of the physiotherapy sought and one-half of the travel expenses claimed. Conclusion In summary, I quantify Mr Bauer’s award as follows:

Ratio Decidendi

Legal Principle Established

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CITATION:	Bauer v Clay [2025] QSC 114
PARTIES:	JACK JULIAN RONALD BAUER (plaintiff) v CLAYTON JOHN JOSEPH CLAY (first defendant) TRANSPORT ACCIDENT COMMISSION ABN 22 033 947 623 (second defendant)
FILE NO/S:	S 280 of 2024
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	22 May 2025
DELIVERED AT:	Rockhampton
HEARING DATE:	12, 13, 14 May 2025
JUDGE:	Crow J
ORDER:	Judgment for the plaintiff against the second defendant for $602,008.14
CATCHWORDS:	DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff was involved in a motor vehicle accident – whether the plaintiff suffered injury and damages in the motor vehicle accident
COUNSEL:	S. J. Deaves KC with E. Jensen for the plaintiff G. C. O’Driscoll for the defendants
SOLICITORS:	Travis Schultz and Partners for the plaintiff Quinlan Miller Treston Solicitors for the defendants