Cabato v Paltridge
[2025] QDC 59
•21 May 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Cabato v Paltridge and Another [2025] QDC 59
PARTIES:
DARWIN CABATO
(Plaintiff)v
GREGORY STUART PALTRIDGE(First Defendant)
And
ALLIANZ AUSTRALIA INSURANCE LIMITED
(Second Defendant)FILE NO:
DC 83 of 2021
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
21 May 2025
DELIVERED AT:
HEARING DATES:
Southport
31 March – 4 April; 28 April 2025 (written submissions dated 17 and 22 April 2025)
JUDGE:
Holliday KC DCJ
ORDER:
1. Judgment for the plaintiff in the sum of $73,663.91
2. Unless the parties can agree on costs, submissions on costs from both parties, limited to no more than five pages must be exchanged and filed no later than 4.00pm on 28 May 2025.
3. Any reply to those submissions, limited to no more than three pages, must be exchanged and filed no later than 4.00pm on 30 May 2025.
4. Liberty to apply.
CATCHWORDS:
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL DAMAGES – where the plaintiff suffered injuries in an accident where he was riding a bicycle and was struck by the first defendant’s vehicle – where liability is agreed with the plaintiff being 25 percent contributory negligent – where damages are assessed under the Civil Liability Act 2003 (Qld) – where there is a dispute as to the injuries caused by the accident – where there is a dispute as to the consequences of the injuries caused by the accident
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – PAST AND FUTURE ECONOMIC LOSS – where the effect on employment is in issue
LEGISLATION:
Civil Liability Act 2003 (Qld) ss 55, 61, 62
Civil Liability Regulation 2014 (Qld) s 9, schedule 4
CASES:
Bell v Mastermyne Pty Ltd [2008] QSC 331
Baldock-Davis v Popham & Anor [2023] QSC 24
Allwood v Wilson and Anor [2011] QSC 180
Foster v Carter and Anor [2017] QSC 135
Goodfellow v Clarke [2015] QDC 193
Cook v Bowen and Anor [2007] QDC 108
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Norman v Hird and Anor [2025] QDC 44
Nichols v Curtis & Anor [2010] QCA 303
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
Evans v Williams & Anor [2018] QDC 210
O’Connor v Wright [2021] QDC 173
Hoveydai v Mak & Anor [2021] QSC 16COUNSEL:
M Lazinski for the plaintiff
R Morton for the defendants
SOLICITORS:
Southern Gold Coast Lawyers for the plaintiff
McInnes Wilson Lawyers for the defendants
Introduction
The accident
Plaintiff’s credibility
Issues
Whether the plaintiff suffered injury to the neck and if so, what is the nature and extent of any such injury.
Whether the plaintiff suffered an injury to his lumbar spine and if so, what is the nature and extent of any such injury.
Whether the plaintiff suffered an injury of a psychiatric nature
The nature and extent of the injuries to the left and right knees
The nature and extent of the injuries to the head
General damages
Economic loss
Whether the plaintiff has suffered past economic loss. If so, what is the proper quantification of any such loss.
Whether the plaintiff has, or will in the future, suffer loss of earning capacity as a result of the collision. If so, what is the proper quantification of any such loss.
Special damages
Whether the plaintiff has incurred special damages in the past and as a result of the collision. If so, what is the proper quantification of any such expenses.
Future treatment
Future care
Whether the plaintiff will require paid assistance in the future as a result of any injury suffered in the collision. If so, what is the proper quantification of any such requirement.
Summary of damages
Orders
Introduction
The plaintiff sues for damages for personal injury arising from an accident which occurred on 29 March 2017 at Palm Beach when the first defendant’s vehicle and plaintiff, riding a bicycle, collided. It was agreed between the parties that the first defendant was negligent and the plaintiff was 25 percent contributory negligent to the circumstances of the collision. The issues between the parties for trial relate to the assessment of damages. The second defendant is the first defendant’s insurer and conducted this proceeding on his behalf. The assessment is governed by the provisions of the Civil Liability Act 2003 (Qld) (‘the Act’) and the Civil Liability Regulation 2014 (Qld) (‘the regulation’).
The trial was heard over six days. The plaintiff and three lay witnesses gave evidence. Expert evidence was given by two orthopaedic surgeons, two neurologists, a psychiatrist, a radiologist and a neurosurgeon. Other expert reports and records were tendered by consent. Detailed written submissions have been provided by the parties which were supplemented with oral submissions.
The plaintiff claimed $401,353.05. In closing written submissions, that figure was reduced and the plaintiff contended for a range of damages not adjusted for contributory liability of $143,299.61 to $259,808.61 consisting of the following:
(a)General damages – ISV of 25 – $50,100.00;
(b)Past special damages: $4,022.00;
(c)Past economic loss – $8,000.00-$15,008.00;
(d)Loss of past superannuation – $800.00-$1,500.00;
(e)Future economic loss – $100,000.00-$200,000.00;
(f)Future care – $6,840.00; and
(g)Future expenses – $32,437.61.
It is not disputed that the plaintiff suffered:
(a)Injury to the left and right knees in the form of abrasions; and
(b)A minor head injury.
The defendants otherwise deny the plaintiff suffered any other injury as a result of the accident. The plaintiff claims, in addition to the injuries not in dispute, he suffered the following:
(a)Injury to the neck;
(b)Injury to the lumbar spine;
(c)Psychiatric injury;
(d)More severe head injury; and
(e)More severe injuries to left and right knees.
Issues in Dispute
The following is in dispute between the parties to this proceeding:
(a)Whether the plaintiff suffered injury to the neck, lumbar spine and of a psychiatric nature as a result of the collision. If so, what is the nature and extent of any such injury;
(b)What is the nature and extent of the injuries to the left and right knees and head;
(c)To general damages: what is the appropriate assessment of the plaintiff’s injuries pursuant to the Act and Regulation;
(d)Whether the plaintiff has suffered past economic loss. If so, what is the proper quantification of any such loss;
(e)Whether the plaintiff has, or will in the future, suffer loss of earning capacity as a result of the collision. If so, what is the proper quantification of any such loss;
(f)Whether the plaintiff has incurred special damages in the past as a result of the collision. If so, what is the proper quantification of any such expenses; and
(g)Whether the plaintiff will require paid assistance in the future as a result of any injury suffered in the collision. If so, what is the proper quantification of any such requirement.
The accident
Liability was admitted but I was asked to draw some inferences from the evidence.
The police report is said to state that the plaintiff rode his bicycle, at speed, straight over a pedestrian crossing without first stopping and hopping off his bicycle. The first defendant did not have time to apply brakes and collided with the plaintiff, who was not wearing a helmet, on the pedestrian crossing.[1]
[1] Exhibit 3, p120.
The ambulance records include “[patient] riding push bike when struck by ute. [Patient] seen to go over bonnet and land on grass. Said to have been initially unconscious.”[2]
[2] Exhibit 3, p398.
The Gold Coast Hospital notes include “went riding on bicycle, not wearing helmet and impacted with car. Witnesses reportedly described patient and bike hitting front of car (dent to bonnet) and patient “flying over the car”. Initially unconscious at scene but rouses quickly with fluctuating GCS. At worst GCS 12, but mostly 14-15.”[3]
[3] Exhibit 3, p226;286.
Photographs of the scene were tendered which depict it was a 40 kilometre per hour zone during school time.[4] The accident occurred, according to the ambulance records, after the school zone had expired, when the speed limit is 60 kilometres per hour.
[4] Exhibit 3, pages 503-506.
The plaintiff’s evidence was that he recalls that he was not wearing a helmet. He was hit on his left side and “it was so strong that I hit my head on the bonnet”[5] and indicated to his left temple when giving evidence. As his head hit the bonnet he saw a “not small dent” on the bonnet.[6] He got “flung off” and landed about four metres away.[7] He landed on his palm, elbow, hip and knee and pointed to his right side when giving evidence.[8] He managed to get to the gutter – he was lapsing in and out of consciousness and was sweating heavily. He was in a lot of pain. An ambulance arrived. In the ambulance he was in a lot of pain to his thighs, legs, arms, chest and head.[9]
[5] Transcript of proceedings on 31 March 2025 page 84 lines 38-39.
[6] Transcript of proceedings on 31 March 2025 page 85 line 3.
[7] Transcript of proceedings on 31 March 2025 page 85 lines 8-21.
[8] Transcript of proceedings on 31 March 2025 page 86 lines 33-41.
[9] Transcript of proceedings on 31 March 2025 page 87 lines 5-27.
There was a focus in the trial on the mechanism of injury as supporting the plaintiff’s case as to the nature and extent of the injuries suffered. I am asked by the plaintiff to draw an inference that the accident occurred “whilst the first defendant’s vehicle was travelling about 50 km/h”[10] for the following reasons:
(a)The evidence establishes that the collision occurred in a school zone designated as a 40 km/h zone;
(b)The reduced speed limit of 40km/hr would not have applied at the time of the collision because the 000 call was received at 9.48am and the school zone hours ended at 9am;
(c)The speed limit at the time of the collision would have likely been 50 km/h by operation of s 25 of the Transport Operations (Road Use Management- road Rules Regulation 2009;[11]
(d)The evidence includes a summary of the Queensland Traffic Crash report which includes that the first defendant “has not had any time to apply brakes”;
(e)The evidence includes a summary that “witnesses reportedly described [the plaintiff] and bike hitting front of car (dent to bonnet) and patient “flying over the car”;
(f)The evidence includes that the first defendant was over the general alcohol limit at the time of the collision.
[10] Outline of submissions of plaintiff at paragraph 7.
[11] A provision titled “Speed limit elsewhere” which provides for a default speed limit for a road in a built up area of 50 km/h;
The defendants’ counsel submitted during the trial that the only inference I could draw with any confidence is that the “vehicle was travelling with enough force to throw [the plaintiff]”[12] but then stated whether it is 30 km/h or 40 km/h “doesn’t much matter.”[13] In the defendants’ written reply submissions, it was stated that the documents relied upon by the plaintiff for proof of speed (leaving aside the photographs) were not tendered for their truth.
[12] Transcript of proceedings on 3 April 2025 page 76 lines 13-16.
[13] Transcript of proceedings on 3 April 2025 page 76 lines 20-21.
I am prepared to accept that the plaintiff’s bicycle was hit by the first defendant’s vehicle at a speed in the order of 40 kilometres per hour given the relevant speed limit and that there is no evidence of the first defendant’s vehicle braking before the collision. I am otherwise not prepared to draw any inference as to a higher speed on the state of the evidence. It would be complete guesswork. I note that the plaintiff’s counsel in closing submissions accepted that it doesn’t make any difference between 40 or 50 kilometres an hour for the mechanism of injury.[14]
[14] Transcript of proceedings on 28 April 2025 page 50 lines 40-50.
The plaintiff also contends that I should accept that his head hit the insured vehicle with sufficient force that the bonnet of the insured vehicle was dented.[15] I am not prepared to make this finding on the state of the evidence. As I detail below, due to the matters set out by me, I seriously doubt the plaintiff’s credibility and reliability. I am not prepared to act on his evidence alone that he recalls his head hitting the bonnet and seeing a “not small dent” on the bonnet. If the records are admissible for their truth, it still does not assist the plaintiff as no record states that the plaintiff’s head hit the bonnet let alone that it was the head that caused the dent to the bonnet.
[15] Outline of submissions of plaintiff at paragraph 8.
Plaintiff’s credibility
The plaintiff bears the onus of proof to satisfy the court on the balance of probabilities that his claim should be accepted. His credibility has been called into question.
The plaintiff’s counsel urged me to accept the plaintiff’s evidence as truthful and reliable and submitted the plaintiff ought to be regarded as a witness doing his best to give an honest account of himself. It was submitted that I should be mindful of limits on the ability to make credibility findings based on demeanour and the desirability of testing credit by reference to objectively established facts. It was submitted that the plaintiff has unchallenged significant difficulties with his memory, has substantial problems in processing and communicating information and is affected by his mental health.
The defendants’ counsel submitted that I should not accept the plaintiff’s account going as far as stating that his questionnaires being completed for Dr Cleaver were “nothing short of fraudulent.”[16] It was submitted that “overall the plaintiff is not a witness whose credit can be accepted. At best for him he is extremely unreliable; at worst deliberately dishonest.”[17]
[16] Outline of submissions of defendants at paragraph 71.
[17] Outline of submissions of defendants at paragraph 80.
As McMeekin J observed in Bell v Mastermyne Pty Ltd [2008] QSC 331 at [19]:
“…The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting of his or her symptoms; of their impact on the plaintiff’s life; of pre existing problems; of the genuineness of effort to regain employment after injury; and of the capacity to maintain employment. These are all difficult issues for a defendant to thoroughly investigate and test. In truth no one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities…”.
In that case, it was known that the plaintiff was prepared to be dishonest for his financial advantage. As Cooper J stated in Baldock-Davis v Popham & Anor [2023] QSC 24 at [25], even if not satisfied that the plaintiff has been dishonest in reporting matters, it is “no less important that the court be satisfied as to the reliability of such reporting.”
I do not consider that the plaintiff was a credible and reliable witness and I am not prepared to act on his evidence where it is not supported. It is my view that the plaintiff has exaggerated to most of the medical experts and, to a lesser extent, this court (leaving aside the left sided symptoms which I am not satisfied of), the extent and constancy of his injuries and ongoing symptoms, care that he has received and will require in the future.
In forming this view, I have taken into account the findings of Ms Jackson[18] in considering the plaintiff’s self-report and evidence and also recognise the fallibility of memory. I have also taken into account, as per the plaintiff’s submissions, that English is the plaintiff’s second language. Further, that Dr Murphy assessed the plaintiff as an “open, unguarded and credible historian” however I note that was for the purpose of a psychiatric examination, where Dr Murphy opined that the plaintiff’s mental health was stable, rather than generally assessing his credibility in relation to the issues I need to determine.
[18] Including as to testing where there was no evidence of attempts at symptom distortion: her findings on testing re cognitive and memory difficulties and her mental health findings. This includes what is contained at paragraphs 61-68 of the plaintiff’s outline of submissions and closing submissions at transcript of proceedings on 28 April 2025 page 52 lines 5-15.
I have excluded from my consideration Dr Khursandi’s opinion that the plaintiff displayed “inappropriate signs” or “abnormal illness behaviour” given the plaintiff’s contention that it should be disregarded due to the inappropriateness of that part of his examination.[19] I have determined that I do not need to make a decision on this issue, and am prepared to exclude it from consideration, given the weight of other factors detailed below.[20]
[19] The plaintiff contends that this test was based on or was the “Waddell” test and ought not to have been administered.
[20] I have still considered that the plaintiff denied acting in the way described by Dr Khursandi in response to the examination administered as detailed in the final paragraph of Exhibit 3, p103.
I have also taken into account the different timing of accounts and that injuries and symptoms may resolve or aggravate over time.
My reasons for not accepting the plaintiff’s evidence as to the extent and constancy of his injuries and ongoing symptoms where it is not supported are for the following reasons in totality:
Lack of complaint of symptoms relevant to the claim to Queensland Ambulance Service and Gold Coast University Hospital
There is no reference in the ambulance records or examination at the hospital to any neck, thoracic or lumbar injuries.
The ambulance records record an initial Glasgow Coma Scale (“GCS”) of 12, recovering to 15/15 within 10 minutes. Anxiety, rigidity of abdomen and pain described as aching radiating to the upper right leg and numerous abrasions or grazes on the arms and legs are noted.[21]
[21] Exhibit 3, pages 399 and 400.
The examination at the hospital notes superficial abrasions to the right hip, bilateral knees, right anterolateral shin and right elbow.[22] The CT scan revealed no abnormality.[23] A Doctor’s note at 6.13pm does not reference a head injury, neck pain or back pain.[24]
[22] Exhibit 3 page 227.
[23] Exhibit 3, page 227.
[24] Exhibit 3, page 226.
I accept that the plaintiff’s focus may have been on the abrasions he sustained in the accident and, as the plaintiff’s counsel submitted, that his pain may have been masked by the analgesia he received[25] (although that is inconsistent with the complaints of pain in other areas reported to the hospital). If there was a complaint to a medical practitioner proximate to the hospital admission, then lack of complaint to QAS and the hospital may be explicable but, as I go on to detail, there was no complaint to any medical practitioner of any symptoms from the car accident for approximately three years.
The plaintiff saw medical practitioners between the accident and 20 January 2020 but did not complain of any symptoms from the car accident.
[25] Records indicate he was given IV fentanyl 100mcg with QAS (Exhibit 3, page 226).
The plaintiff saw medical practitioners on at least 17 occasions for a myriad of issues including: a problem with his right eye and right eyelid (27/9/18 and 9/10/28); a cyst on his right buttock; food poisoning (14/11/18 and 16/11/18); gastro bug (7/1/19); attending with a youth social worker to arrange housing (29/7/19); flu like symptoms (6/8/19 and 8/8/19); flu symptoms and unable to go to work (14/8/19); upper respiratory tract infection (1/10/19); cough, temperature and malaise (23/10/19); vomiting and wanted medical clearance to go back to work (11/11/19); but made no mention of any symptoms as a result of the motor vehicle accident.[26]
[26] Transcript of proceedings on 1 April 2025 page 71 lines 25-28, 36-39; page 72 lines 15-28; page 75 lines 4-21, 23-30; page 75 line 37 – page 76 line 7; page 76 lines 37-46; page 79 lines 25-46.
The plaintiff even went to see the Doctor about an injury to his back he said he suffered at work whilst shovelling meat. A few days later, on 31 October 2018, the plaintiff returned to the doctor and the notes of the doctor are “full ROM, no pain.”[27] It is incongruous that the plaintiff would have reported “no pain” when according to his evidence he was suffering significant (my word) ongoing pain in his back as a result of the accident.
[27] Exhibit 3, page 431.
I have taken into account the plaintiff’s explanation[28] that he thought the injuries would heal on their own and he didn’t know what to do and “just took Panadol and Nurofen”[29] but that is not a plausible explanation for failing to report any symptoms for more than two years with pain that he describes as, at least at times, 7 or 8 out of 10[30] and suffering the left sided symptoms. I have further taken into account the plaintiff’s explanation for not reporting the left sided symptoms that he was embarrassed.[31] That is not a plausible explanation when considering that he had no difficulty in reporting the symptoms after consulting with a solicitor on 23 December 2019.[32]
[28] Including in exhibit 6.
[29] Transcript of proceedings on 1 April 2025 page 83 lines 11-12.
[30] 9/10 to some of the medicolegal reporters.
[31] See, eg., transcript of proceedings on 1 April 2025 page 83 lines 29-36.
[32] Transcript of proceedings on 1 April 2025 page 83 lines 24-42.
Timing of complaint to medical practitioner – after consulted with solicitors
The first complaint to a medical practitioner followed his consulting with solicitors on 23 December 2019.[33] The plaintiff accepted in evidence that he knew, from about that time, that he would need to go and see medical practitioners if he was going to bring a case about the injuries that he had received as a result of the accident.[34]
[33] Exhibit 6.
[34] Transcript of proceedings on 1 April 2025 page 63 lines 20-22.
The plaintiff accepted that he went to the Doctor because the solicitors told him that he had to go and get a medical certificate although also said it was “the little push” and he was concerned and scared about the symptoms.[35]
Inconsistencies and ongoing lack of complaint to general practitioners and others even after went to solicitors
[35] Transcript of proceedings on 1 April 2025 page 89 lines 41-46.
The first consultation (other than attending at hospital on the day of the accident) in relation to any symptoms as a result of the motor vehicle accident was on 20 January 2020 when the plaintiff attended a general practitioner for the purpose of obtaining a certificate relevant to his claim. The medical record is:
“States 29 March 2017 struck by a car. Solicitor requesting certificates. Admitted to GCUH for 2/7.[36] States did not reattend hospital and did not follow up with any doctor. We have not seen this patient. States cannot fully extend elbow…States 50 times a day left side body transiently tenses up. States difficulty running because of pain in left ankle”.[37]
[36] This is false.
[37] Exhibit 3, page 334.
Even on 20 January 2020, when he went to the general practitioner for the purpose of obtaining a certificate about the injuries he sustained in the accident, the plaintiff did not mention any neck pain, back pain, knee pain, headaches or any psychological or psychiatric symptoms. Also, in evidence in this court, when questioned about the left sided symptoms, he accepted that the 50 times a day was a “rough estimation.” When cross-examined about the fact that would mean it was occurring every 20 minutes if the plaintiff was awake for 15 hours a day, the plaintiff responded “it’s not happening every three times an hour. It’s just so random…”.[38]
[38] Transcript of proceedings on 1 April 2025 page 81 lines 7-9.
I have further taken into account that the plaintiff continued to see general practitioners after he consulted with solicitors, and, other than the entry of 20 January 2020, he did not discuss the accident. This included 30 December 2019 for food poisoning; 24 February 2020 for clearance to return to work; 31 March 2020 for a runny nose; 2 April 2020 a clearance to return to work; 23 July 2020 for sneezing and a runny nose – wanting clearance to return to work; 1 August 2020 sneezing at work- fit to return to work; 13 November 2020 sneezing – certificate given; 9 December 2020 for migraines and was unable to work; 13 February 2021 painful stomach – wanting a note to say he can return to work; 4 April 2021 – abdominal pain – return to work tomorrow; 26 April 2022 as generally unwell with abdominal pain and diarrhoea – settled – medical certificate given; and 5 May 2022 for frontal headache today – diagnosed headache.
The plaintiff’s explanation is that he went to the doctor to “get a day off” and did not want to let his employer know about his issues related to the accident – he didn’t want his employer to know that he was a liability.[39] He explained that he had to hand his employer the medical certificate clearance to go back to work with an explanation of the sickness. The plaintiff then said that was “partly the reason” and he repeated that he also thought it would heal on its own and he would take Panadol and Nurofen if he was in pain which I have detailed above are not, in my view, plausible explanations.
[39] Transcript of proceedings on 2 April 2025 page 4 line 25.
In the letter of instruction to the neuropsychologist Ms Jackson,[40] the only mention is of left ankle pain and elbow pain. There is no mention of any injury to neck or lower back, head injury or a psychological or psychiatric problem.
[40] Exhibit 8.
The letter of instruction to Dr Todman dated 9 April 2020 stated “injury to the left side of his body in particular head, elbow and ankle.”[41] It was suggested to the plaintiff that he did not mention an injury to his neck and back to his solicitors before that time. The plaintiff’s response was “I did not, but the pain was there.”[42]
[41] Exhibit 9.
[42] Transcript of proceedings on 1 April 2025 page 89 line 3.
Inconsistencies in what plaintiff reported to experts and to this court
There are inconsistences in what the plaintiff reported to the experts which are inconsistent with each other and inconsistent with the evidence he gave in court. Whilst I have summarised some of these here, I also include others under consideration of the relevant injuries below:
(a)The plaintiff accepted in evidence that he did not mention to Ms Jackson his neck or lower back pain (but indicated in respect of his back that middle back was to encompass this).[43]
[43] Transcript of proceedings on 2 April 2025 page 7 line 45 – page 8 line 14.
(b)In evidence, the plaintiff said that he was at times depressed to the point of being suicidal[44] but he did not mention this to Ms Jackson, Dr Murphy or anyone else.
[44] Transcript of proceedings on 1 April 2025 page 26 line 18.
(c)The plaintiff reported to Ms Jackson that he was “forgetful, forgetting what people have said and appointments and having to write notes”[45] but made no mention of this in evidence nor did any of the other lay witnesses.
[45] Exhibit 3, page 73.
(d)To Dr Cleaver, Dr Todman and Dr Khursandi he reported that his lower back pain was “constant” whereas in evidence he stated it was only in certain positions.
(e)The plaintiff told Dr Cleaver that he had headaches every day “for one to two hours after mechanical activities”[46] whereas in court he said he has headaches at least once or twice per week.[47]
(f)The plaintiff told Dr Cleaver that he spent four days in hospital which is false.
(g)The plaintiff told Dr Cleaver that “I need help every day in most aspects of self care” whereas in court the plaintiff said it was 1-2 hours per week.[48]
(h)The plaintiff told Dr Cleaver that “I stay at home most of the time” when the week prior to seeing Dr Cleaver he had worked 44 hours; 43 hours the week he saw Dr Cleaver and 52 hours in the following week.[49]
(i)The plaintiff told Dr Cleaver, Dr Todman and Dr Khursandi he had constant neck pain whereas in evidence he said it was not constant.
(j)The plaintiff told Dr Todman that his neck pain is in the midline and extends into both shoulder girdles and averages up to 9/10 on a daily basis and that pain increases with movements, postures and activities. As I have detailed, the plaintiff in evidence said that the pain is reactive not constant.
(k)The plaintiff told Dr Cochrane that he had “developed over time escalating lower back pain after the accident” whereas his evidence was that the pain had commenced immediately following the accident and the first episode was when he went to stand up from the toilet which was “very painful.”[50] There is no record of the plaintiff having said this at any previous time to giving evidence in chief in this court.
(l)The plaintiff told Dr Cochrane that he had scapula pain which he did not give evidence of in this court.
(m)The plaintiff told Dr Todman that his headaches started at the back of his head and came around to the front whereas in court he said it was from the front and works its way around.[51]
[46] Exhibit 3, page 27.
[47] Transcript of proceedings on 1 April 2025 page 15 line 12.
[48] Transcript of proceedings on 1 April 2025 page 54 line 11.
[49] Transcript of proceedings on 1 April 2025 page 13 line 22, page 14 lines 21-29.
[50] Transcript of proceedings on 2 April 2025 page 36 lines 4-5.
[51] Transcript of proceedings on 1 April 2025 page 17 lines 44-46.
Social media posts are inconsistent with plaintiff’s claim
There were a number of exhibits tendered of social media posts of the plaintiff and his girlfriend. I have taken into account the plaintiff’s submission that social media posts are “merely a snapshot in time and care must be taken in too readily making conclusions about a person’s injuries based on that evidence.”[52]
[52] Outline of submissions of plaintiff at paragraph 39.
In this case, the social media posts paint a different story to that reported around the same time to Dr Cleaver in 2024[53] that “I stay at home most of the time because of my back”; “I stay in bed most of the time because of my back”; and “I wouldn’t be able to sit through dinner in a restaurant without having pain”. The social media posts show the plaintiff enjoying activities including going out to dinner with his girlfriend, going on holidays to Sydney and Bali, go-karting, riding an electric scooter, rock and rope climbing, quad biking, dodgem cars, hiking, lifting up his girlfriend, and his girlfriend sitting on his shoulders. The plaintiff’s neck is shown turning. The below table is a summary of the images/posts. The dates are either on the images or have been inferred based on the content and the evidence that the relationship commenced in May 2023.
[53] Exhibit 3, page 58.
| Exhibit | Image # | Date | Description |
| 10 | 1 | 7 May 2024 | Depicts the plaintiff and Ms. Morante sitting together at a restaurant for what seems to be a dinner for their first anniversary. |
| 2 | 29 March 2024 | Depicts the plaintiff and Ms. Morante sitting together at a restaurant for lunch. | |
| 3 | 25 March 2024 | Depicts the plaintiff and Ms. Morante on a date at Felons in Brisbane. The plaintiff is kissing Ms. Morante on the cheek. | |
| 4 | 25 March 2024 | Taken on the same occasion as Image 3. Depicts the plaintiff on his phone at Felons in Brisbane. | |
| 5 | 13 March 2024 | Depicts the plaintiff and Ms. Morante sitting together at what appears to be a restaurant. The plaintiff is holding Ms. Morante around the waist. | |
| 6 | 15 February 2024 | Depicts the plaintiff sipping from a champagne flute on a gondola-style boat. The caption of the photo notes that it was a Valentine’s Day celebration. | |
| 7 | 4 February 2024 | Depicts the plaintiff and Ms. Morante sitting together at what appears to be a restaurant. The plaintiff is holding Ms. Morante around the waist. | |
| 8 | 3 January 2024 | Depicts the plaintiff and Ms. Morante sitting together at a restaurant for lunch. The plaintiff is kissing Ms. Morante on the cheek. The caption states that the photo was taken during a New Year’s Day celebration. | |
| 9 | 26 December 2023 | Depicts the plaintiff and Ms. Morante sat together at a table at The Emporium in Brisbane for dinner. | |
| 10 | 26 December 2023 | Taken on the same occasion as Image 9. Depicts the plaintiff and Ms. Morante sat together at a table at The Emporium in Brisbane for dinner. | |
| 11 | 1 | 2 September 2023 | Shows the pricing of the various packages on offer at the go-karting facility. |
| 2 | 2 September 2023 | Shows the plaintiff and Ms. Morante standing next to one another wearing go-karting helmets. Ms Morante is holding the plaintiff’s arm. | |
| 3 | 2 September 2023 | Shows the plaintiff climbing a rock wall. | |
| 4 | 2 September 2023 | Shows the plaintiff at the top of a climbing rope. | |
| 12 | 1 | 10 May 2024 | Depicts the plaintiff standing behind Ms. Morante and kissing her on the cheek. The plaintiff’s neck is fully rotated to his right. Based on what they are both wearing, this photo appears to have been taken on the same occasion as Exhibit 10 Image 1 but was published 3 days later. |
| 2 | 17 April 2024 | Depicts the plaintiff and Ms. Morante at a beach. The plaintiff is carrying Ms. Morante fully in his arms. | |
| 3 | 31 March 2024 | Depicts the plaintiff hiking down an unsealed path in Springbrook. The plaintiff wears a small backpack and is carrying a water bottle in one hand, and a bag in the other hand. | |
| 4 | 14 February 2024 | Depicts the plaintiff and Ms. Morante eating a meal on a gondola-style boat. Taken at the same time as Exhibit 10 Image 6 but published a day earlier. | |
| 5 | 17 December 2023 | Depicts the plaintiff and Ms. Morante in a pool. Ms. Morante is sitting atop the plaintiff’s shoulders. | |
| 6 | 16 November 2023 | Depicts the plaintiff driving a vehicle while Ms. Morante is sitting in the passenger seat. The plaintiff and Ms. Morante are holding hands across the centre console. | |
| 7 | 9 November 2023 | The plaintiff and Ms. Morante are standing on a beach in front of a shipwreck. | |
| 8 | 12 September 2023 | Depicts the plaintiff and Ms. Morante standing in front of the Sydney Harbour Bridge and Opera House. | |
| 9 | 21 September 2023 | Depicts the plaintiff sitting at a restaurant. The caption makes clear that it was to celebrate the plaintiff’s birthday. | |
| 10 | 21 September 2023 | Taken at the same time as Image 9. Depicts the plaintiff and Ms. Morante sitting aside one another eating a piece of cake at the same birthday celebration. | |
| 11 | 12 September 2023 | Depicts the plaintiff and Ms. Morante sitting in elevated seating wearing virtual reality goggles. The caption makes clear that the photo was taken on the couple’s “last day” in Sydney. | |
| 12 | 10 September 2023 | Depicts the plaintiff and Ms. Morante sitting next to one another on a plane. The caption has the hashtag #sydney. | |
| 13 | 10 September 2023 | Taken at the same time as Image 12. A picture of the inside of the plane from where Ms. Morante was sitting. Looking forward, essentially Ms. Morante’s point of view down the plane towards the cockpit. | |
| 14 | 2 September 2023 | Depicts the plaintiff and Ms. Morante participating in dodgem cars at the Gold Coast Show. The plaintiff and Ms. Morante are sitting in separate cars. The plaintiff is also using his phone to take a photo or video of Ms. Morante. | |
| 15 | 2 September 2023 | Taken at the same time as Image 14. Depicts the plaintiff looking back at Ms. Morante over his left shoulder. The Plaintiff’s neck is fully rotated to the left such that he is looking behind his direction of travel. | |
| 16 | 2 September 2023 | Taken at the same time as Image 14 and Image 15. Depicts the plaintiff now looking forward and driving away from Ms. Morante. | |
| 13 | 1 | 17 April 2024 | Depicts the plaintiff driving a vehicle whilst Ms. Morante is sitting in the passenger seat. |
| 2 | 14 March 2024 | Depicts the plaintiff and Ms. Morante riding a quad bike together. The plaintiff is in control of the quad bike, Ms. Morante is sitting in front of him between his legs. | |
| 3 | 14 March 2024 | Taken at the same time as Image 2. Depicts the plaintiff and Ms. Morante riding a quad bike together and sitting in the same way as Image 2. Ms. Morante is now in control of the quad bike. The plaintiff is holding on with one hand and holding something above his head with the other hand. | |
| 4 | 14 March 2024 | Taken at the same time as Image 2 and Image 3. Depicts the plaintiff and Ms. Morante riding a quad bike together. The plaintiff is in control of the quad bike, Ms. Morante is sitting in front of him between his legs. The quad bike is being driven through a water crossing, under a bridge. |
The plaintiff said in evidence that he did experience pain with these activities but did them to impress his girlfriend; he didn’t want his girlfriend to know that he was “less of a man”; he wants to live a “happy life”; he did not want to be “less of a loving and happy partner”; and these were “special times”.[54] Whilst that may all be the case, in my view the social media posts are inconsistent with the plaintiff being in pain to the level that he has described to the experts, and to a lesser extent this court. Further, the social media posts are inconsistent with the plaintiff suffering the left sided symptoms which I detail further at [153].
[54] Transcript of proceedings on 2 April 2025 page 56 line 34; page 50 lines 5-6; page 26 lines 39-40; page 59 lines 15-16.
Other findings against plaintiff’s credit
The plaintiff, in evidence, stated that he was “let go” from his apprenticeship prior to the accident which made him “feel sad”. He said that “to this day he did not know why he was let go”.[55] This is inconsistent with the account the plaintiff gave to Ms Jackson when he said that he left the apprenticeship after about a year as the bosses were mean and disrespectful and they were underpaying him. The plaintiff accepted that if he did say that to Ms Jackson it would be untrue.[56] Similarly, the plaintiff told Dr Cochrane that he “did not complete the apprenticeship and ceased after one year, not wanting to continue in this industry.”
[55] Transcript of proceedings on 31 March 2025 page 82 lines 4-6.
[56] Transcript of proceedings on 1 April 2025 page 66 lines 13-24.
The plaintiff in his claim form marked the box that he had not had any alcohol or drugs in the 12 hours before the accident.[57] The plaintiff admitted that he had consumed marijuana on the morning of the accident.[58] His explanation for providing the incorrect answer on the form was that it was “so early in the morning” [that he had taken the cannabis] that he thought it didn’t count.[59]
[57] Exhibit 6.
[58] Transcript of proceedings on 1 April 2025 page 70 lines 21-22.
[59] Transcript of proceedings on 1 April 2025 page 70 lines 37-38.
The plaintiff denied that he had said or responded in the ways set out in Dr Saines and Dr Khursandi’s reports.[60] Those denials were of matters which would not have been favourable to him. I accept that the plaintiff did:
(a)respond in the ways set out by Dr Khursandi in his report at the bottom of page 103. I do not accept the plaintiff’s evidence that he did not respond in that way. I do not accept the submission that I should prefer the plaintiff’s evidence including because there were no contemporaneous notes of the examination by the Doctor and because he had not reported any tenderness to Dr Cleaver or in evidence in this court. Given the extent of the inconsistencies and other factors detailed, I prefer the evidence of the Doctor;
(b)respond in the way set out by Dr Saines, that is, that the plaintiff denied any significant neck or lower back symptoms apart from after heavy physical activity. In evidence, the plaintiff denied having said this to Dr Saines and said he had informed the Doctor that it would be worse after heavy work.[61] I accept the evidence of Dr Saines.
[60] See, e.g., transcript of proceedings on 2 April 2025 page 25 line 44 – page 26 line 10; page 16 line 50 – page 17 line 32.
[61] Transcript of proceedings on 2 April 2025 page 26 lines 5-6.
Dr Khursandi noted that when examined by Dr Cleaver on 20 March 2020, the plaintiff exhibited full flexion and extension of his lumbar spine. When he was examined by Dr Todman about a month later, his forward lumbar flexion was reduced by about 40 degrees (about half of the normal range). When examined by him, two months later, the plaintiff had full forward flexion (same as Dr Cleaver). Dr Khursandi noted that there is no medical explanation for the discrepancies.
I have detailed as necessary the extent to which I have accepted or rejected the plaintiff’s evidence under the relevant heads of injuries below.
Issues
The plaintiff bears the onus of establishing the injuries suffered in the accident and the ongoing effects of them. The standard of proof is the balance of probabilities.
Whether the plaintiff suffered injury to the neck and if so, what is the nature and extent of any such injury.
Plaintiff’s evidence
The plaintiff gave evidence that he has “headaches at least once, twice a week” which he takes “Panadol and Nurofen, whichever is available.”[62] He said it was a pain of “maybe three going up to four” and described it as a “throbbing sort of pain”.[63] The plaintiff gave evidence that if he takes medication, it would “slowly ease” down to nothing.[64] He described that the headache starts at the front of his head and works its way around to the top of the head.[65] Without medication, the headache lasts a day or two.[66]
[62] Transcript of proceedings on 1 April 2025 page 17 lines 12-21.
[63] Transcript of proceedings on 1 April 2025 page 17 lines 26-27.
[64] Transcript of proceedings on 1 April 2025 page 17 lines 29-31.
[65] Transcript of proceedings on 1 April 2025 page 17 line 44 – page 18 line 18.
[66] Transcript of proceedings on 1 April 2025 page 18 lines 20-21.
The plaintiff further gave evidence that he had “pain in the neck”. He described it as a “restriction kind of pain. Like, I say right now that if I was just staying like this…I don’t feel any pain on my neck at the moment, but if I was to move it in a way that it does not agree with, I feel the pain.” [67] He said he experiences neck pain daily and without medication it is a “seven, eight. It’s really painful.”[68] Medication assists with the pain and if he was to “take maybe two Panadols or Nurofen, it would drop down to maybe one to none.”[69] The plaintiff said that he had full movement in his neck in all directions but flexing his neck, extending his neck and rotation to the left caused pain.[70] From the day after he came home from the hospital, his neck was in pain. He stated that he had consistently had pain.[71]
[67] Transcript of proceedings on 1 April 2025 page 18 lines 26-33.
[68] Transcript of proceedings on 1 April 2025 page 18 lines 35-42.
[69] Transcript of proceedings on 1 April 2025 page 18 line 44 – page 19 line 3.
[70] Transcript of proceedings on 1 April 2025 page 19 line 24 – page 20 line 21.
[71] Transcript of proceedings on 1 April 2025 page 21 lines 1-2.
The plaintiff also gave evidence of the following symptoms:
“Just for a very brief moment, I would – wouldn’t have full control of my – my left side. Um – what happens is it’s just – I don’t know where it would seize – it would, like, tense up – um – on its own and it would – like, my – my ankle. My ankle, my foot – my foot would try and bend itself inwards – upwards and my – my thigh would tense and my – uh – my wrist, my hand, would also curl – like, my – my fingers would curl – um – inwards, towards my – my body. My – my elbow would also – my – my muscle – my forearm muscle would also tense – um – but I usually used my right hand to – um – make it look like I’m – I’m normal. I’m very – um – self-conscious about – uh – I just – I’m scared of being judged, of course. Um – I – I don’t really want – many people – it took me a long time to – actually open this up, because I just didn’t want to – people to judge me because I’m losing control over my left side… (“left sided symptoms”).[72]
[72] Transcript of proceedings on 31 March 2025 page 88 lines 29-40.
The following exchange occurred in evidence, in relation to the left sided symptoms:
“[they started] roughly a couple of months – um – the first one I witnessed, I think, was a couple of months in. Um – yeah, I think I was getting off my bed and then I was starting to walk and then, all of a sudden, it tensed up and I was – I was confused. I was very confused. Um – I asked myself, “What is this?” and then it would go away and then I’d just, kind of, shrug it off, you know? Like, “Oh, that was so quick.” Um – I didn’t know what it was.
Now, you used the words “a couple of months in”. What do you mean by couple of months in”? Um – I – honestly, I don’t know what date, what – um – I – I know it was, like, roughly, roughly two months after my – after being hit by the car, the accident, I started having these episodes where I would lose control of my left side.
All right. How often do you get them? Um – well, honestly, it – I can’t say, like, precise time – like times that they happened, but roughly five times to 25 times a day, it would happen. Random. Sometimes maybe less, sometimes – yeah.
When these symptoms come on, how long do they last? Five seconds, 10 seconds. It was a really short, brief moment.
…
And can they sometimes be longer? Yes. But, like – uh – honestly, I can’t control it. Um – it’s just so sudden. It happens out of nowhere – um – where I can’t really give – like, I know I feel it and, like, yeah.
Do you get any warning before it starts? Zero warning.”[73]
[73] Transcript of proceedings on 31 March 2025 page 89 lines 10-39.
The plaintiff’s counsel accepted in closing submission that the left-sided symptoms should be defined as per what the plaintiff gave evidence of in this court.[74]
[74] Transcript of proceedings on 28 April 2025 page 49 line 30 – page 50 line 5.
Charmaine Brissett
Ms Brissett works at the IGA Currumbin with the plaintiff and sees him 2-3 times per week at work. She described the plaintiff as “…happy go lucky guy, just gets on with the job, as we all do, I suppose.”[75] Ms Brissett has observed the plaintiff “grimace and, you know, stretching and – um- even at the registers, stretching his neck and stuff”.[76] She explained when she sees him stretching his neck you can see the strain on his face. She has also seen him “rubbing his neck”.[77] She observed the plaintiff sitting down and rubbing his hand.[78]
[75] Transcript of proceedings on 1 April 2025 page 5 line 29.
[76] Transcript of proceedings on 1 April 2025 page 6 lines 11-12.
[77] Transcript of proceedings on 1 April 2025 page 6 line 17.
[78] Transcript of proceedings on 1 April 2025 page 7 lines 26-27.
Apple Morante
Ms Morante is the plaintiff’s girlfriend since mid 2023. She has seen him touching the back of his neck and taking Nurofen or Panadol. She doesn’t know how often he takes it.[79]
[79] Transcript of proceedings on 4 April 2025 page 80 lines 5-9; page 81 lines 1-3.
Dr Cleaver
The plaintiff’s solicitors arranged for him to be examined by Dr Cleaver, orthopaedic surgeon. He first saw the plaintiff on 20 March 2020. The plaintiff reported constant neck pain, in the midline at the base of his neck. The plaintiff rated it as 7/10. The neck pain was reported to be associated with daily headaches – lasting for one to two hours after mechanical activities. On the Neck Disability Index the plaintiff ticked boxes including that “the pain is fairly severe at the moment”; “I cannot do my usual work”; “I can hardly drive at all because of severe pain in my neck”; and “I can hardly do recreation activities because of pain in my neck”. Dr Cleaver stated that “[the plaintiff reported] a bizarre set of symptoms, which affect the left side of his body in a hemiplegic type distribution but not hemiplegic in characteristics. These symptoms he described as a “tension” causing rigidity and dysfunction. They happen approximately 20 times per day and last from between 15-20 seconds. These symptoms strike insidiously and are not related to mechanical activities. In the report fashioned by Dr Leanne Jackson, these symptoms are mentioned, and hers is a note that one of these episodes was observed during her interview with him. None were observed by myself.”
Dr Cleaver assessed 68% on the Neck Disability Index and diagnosed a muscular whiplash injury, cervical spine. He opined as follows:
“Cervical spine: The cervical spine examined abnormally. In essence he has asymmetrical loss of range of motion. He did not have any tenderness in the cervical spine.
What was lost was left-sided rotation which was reduced to 25% of normal,[80] left sided lateral flexion which was reduced to 50% of normal,[81] right sided rotation which was reduced to 50% of normal. Extension and flexion were performed fully, but there was grimacing mid-range indicative of pain”.
[80] In evidence he agreed this was barely movement at all (transcript of proceedings on 2 April 2025 page 92 line 14)
[81] In evidence he agreed this was “a very severe reduction” (transcript of proceedings on 2 April 2025 page 92 line 16)
He opined:
“Using Table 15-5 on page 392 of the Guides, [the plaintiff] would also satisfy the criteria for DRE Cervical Category II. This is as a result of him having asymmetrical loss of range of motion in association with an accident that can cause this clinical spectrum of symptoms and signs. He is awarded a further 5% [WPI] for this.”
On 13 May 2024 Dr Cleaver examined the plaintiff for a second time. The plaintiff reported constant pain at the base of the neck. A consistent finding on examination for the second report was “painful and staccato movement to the right side.” A diagnosis was made of soft tissue injury, cervical spine and musculoligamentous sprain, lumbar spine. His assessment of WPI remained unchanged for the cervical spine.
In a note dated 15 May 2024, Dr Cleaver stated that he did not observe any symptoms to the left side of the body on examination for the purpose of the second report nor did the plaintiff report any symptoms to him.
In a note dated 28 March 2025, Dr Cleaver opined that the CT scan taken on the day of the accident showed a normal alignment to the cervical spine with no evidence or a disc bulge or disk protrusion. In relation to the 2024 CT scan, it showed: “spondylotic changes at C5/C6 manifested as a bulging disc, and some ossification of the posterior longitudinal ligament most prominent on the posterior body of C6. There was a focal kyphotic deformity about C5/C6”.
Dr Cleaver opined “the fact pattern that, on balance of probability, best fits this scenario of trauma, clinical symptoms and radiological findings is that when the claimant was ejected from his bike and landed on the bitumen with sufficient force to induce momentary loss of consciousness, he injured the disc at C5/C6 by means of an internal disk disruption which was not sufficient to be evident radiologically some hours later (CT scan of 2017) but proceeded to demonstrate the natural history of an internal disruption with the development of pain, micro instability, and an inability to maintain lordosis at that particular motion segment (C5/6). Radiological evidence of this natural history is evident on the CT scan of 2024. Muscle spasm if present at assessment does direct passage into DRE category 2 using AMA5 methodology.”
Dr Cleaver further opined “for an injured disc to be responsible for loss of lordosis, there either had to be severe catastrophic trauma at the time of injury, or relatively minor trauma by means of an internal disc disruption which can take years to develop to a stage where there is loss of lordosis. For completeness, this latter scenario is extremely common in clinical practice.” His note concludes with the following “it is my professional opinion that the [plaintiff] suffered an injury to his C5/C6 disc when he had his accident on the 29th March 2017…A comparison between the [plaintiff’s] two CT scans clearly indicated that in the intervening time period the C5/C6 disc has become incompetent, unstable, associated with a focal kyphotic deformity, a straightening of the normal cervical lordosis and the most likely reason for this is the accident.”
In evidence, Dr Cleaver accepted that if there had been such an internal tear to the disc he would expect the person to complain of symptoms at the time and agreed that it might be pain, a burning sensation or stiffness.[82] Dr Cleaver agreed that it makes the theory of an internal disc disruption less plausible if there was not the complaint and agreed “it can’t be substantiated. It’s just a theory that may or may not be correct”.[83] He agreed that an intervertebral disc protrusion may be caused by quite innocuous events and that it is well accepted that there is a poor correlation between radiological evidence of spinal abnormalities such as protrusion and symptomology. He agreed that the discal abnormality could be the product of the motor vehicle accident but it could be the product of something else which happened much later. It is possible that it could be simply degeneration, even in a person of the plaintiff’s age. He agreed the “all important consideration is the clinical history the patient gives of the onset of symptomatology.”[84]
[82] Transcript of proceedings on 2 April 2025 page 100 lines 10-15.
[83] Transcript of proceedings on 2 April 2025 page 100 lines 15-22.
[84] Transcript of proceedings on 2 April 2025 page 101 line 18.
In re-examination, Dr Cleaver stated that the motor vehicle accident is “consistent with causing an internal disc disruption. An internal disc disruption can present years later as a disc protrusion. There’s no scientific formula that you can apply that puts percentage probability on it.”[85] Further, he agreed that fentanyl, which was noted as having been administered to the patient at the hospital, is a very strong opioid painkiller. He further gave evidence that the accident was consistent with causing a discal injury in the neck and soft tissue injury to the lower back.
[85] Transcript of proceedings on 2 April 2025 page 109 lines 43-47.
Dr Todman
The plaintiff’s solicitors arranged for him to be examined by Dr Todman, neurologist on 15 April 2020. In the report dated 15 April 2020 (first report), Dr Todman stated that the plaintiff was “still suffering from symptoms related to this accident.” In relation to neck pain, the plaintiff reported “the neck pain is constant. It is in the midline and extends into both shoulder girdles. It averages up to 9/10 on a daily basis. Pain increases with movements, postures and activities. There is pain at night with poor sleep. Headaches occur frequently, at least three days per week.”
Dr Todman opined that “the frequent post traumatic headaches are of muscle tension type related to the neck injury.” He gave an “additional three percent whole person impairment…” for the headaches.
In his first report, Dr Todman noted on examination: “in the cervical spine there was restricted range of movement by 30 degrees to 40 degrees in each direction with tenderness in mid-cervical muscles and in both trapezius muscles”.
He opined that there was an injury to the cervical spine with chronic pain and restriction in movement which represents a chronic musculoligamentous strain.
In relation to the cervical spine, he opined it was a six percent WPI (total of 12 percent with lumbar spine) which is the “lower part of the range of five to eight percent based on the level of symptoms and effects on ADL’s as well as noting restricted movements and radicular complaints.”
Dr Todman noted in his first report that the plaintiff reported “on a daily basis he has had episodes of heaviness and weakness of the left arm and left leg, these last about 20 seconds. There are no involuntary movements and he does not lose consciousness with them.” Dr Todman stated the cause of these episodes “is uncertain.”
In his second report dated 12 March 2025, Dr Todman opined that the “disc protrusions at C5/6 and L5/S1 are in my opinion most likely related to the trauma of the accident…Although occasionally these may be encountered as an age related degenerative change these findings are in the setting of trauma in a person who had not previously suffered from symptoms in this region and are more likely than not related to the accident of 29 March 2017”.
Dr Todman noted that he is:
“generally in agreement with Dr Cochrane’s assessment and conclusions. He is a respected neurosurgeon and spinal surgeon and I have seen many patients assessed and treated by him. The episodic limb symptoms are not explained by any other mechanism from the investigations nor is any other suggestion made by his treating doctors as a potential explanation for these episodic symptoms… I would suggest from a clinical and radiological opinion that the symptoms in the neck are closely correlated with the injury itself and are unlikely to be an incidental finding in a young person and are most likely (greater than 50% chance) related to the accident of 29 March 2017. I can’t comment specifically on the cervical cord abnormality as I have not reviewed the films personally but they are a potential source of the episodic neurologic symptoms with no other cause offered by other medical practitioners”.
In cross-examination, Dr Todman accepted that the history component of his report was based on self-report. He stated that it was not unusual for hospital records to not note neck or back pain as a patient may be in shock and have suffered a head injury such that symptoms may develop within 24 hours or 48 hours after an accident.[86] He agreed that his usual practice was to put a patient into DRE category 2 provided they complain of symptoms plus abnormality on physical examination and consistent with a relevant injury.[87] In relation to the range of movement, he agreed it could be feigned but the AMA5 stipulates that it is done on a number of occasions.[88] The measurement of cervical or lumbar range of movement is dependent upon the patient giving full effort.[89] Dr Todman agreed that if there was no pain from the time of the accident until three years after, then you would have to question whether the disc protrusions were related to the accident. He agreed that the link would be hard to establish – that applies to both protrusions.[90]
[86] Transcript of proceedings on 4 April 2025 page 35 line 28 – page 36 line 3.
[87] Transcript of proceedings on 4 April 2025 page 43 lines 39-41.
[88] Transcript of proceedings on 4 April 2025 page 45 lines 30-33.
[89] Transcript of proceedings on 4 April 2025 page 45 lines 39-41.
[90] Transcript of proceedings on 4 April 2025 page 49 lines 12-18.
Dr Cochrane
The plaintiff’s solicitors arranged for him to be examined by Dr Cochrane, a neurosurgeon, on 29 May 2024 and 31 May 2024. The plaintiff reported that he suffers from headaches, “some days he is headache free but some days his headache is debilitating, 10/10 in severity on the Visual Analogue Scale…these are holocranial, that is involving the entirety of the head somewhat circumferentially with a tension character.” The plaintiff reported ongoing neck pain: “he describes this as a posterior cervical pain which on average is 5/10 on the VAS. He describes this feeling as “like being punched” in the back of the neck. The neck pain radiates towards the shoulders but not into the upper extremities themselves and will radiate to the base of the skull.”
The plaintiff reported “…escalating low back pain and thoracic back pain in particular, perhaps a few days after the injury, and after a week or so this seemed to involve his neck as well. Spinal pain symptoms have persisted. He has needed intermittent Panadol and Nurofen from the time of the accident for spinal pain”. The plaintiff reported that his “spinal pain is getting worse and is now struggling to manage with his escalating pain.”
Dr Cochrane, on assessment, noted that:
“the cervical spine revealed nuchal pain with extension and vertebrae prominins (cervicothoracic junction) pain with extension. Comfortable neck movements were three quarters range of flexion and two-thirds range of extension. Lateral flexion of the neck was asymmetrically restricted, three-quarters of full range to the right and just beyond two-thirds of range to the left. Rotation of the neck was three-quarters of expected range bilaterally.”
Dr Cochrane opined that the plaintiff has:
“persistent asymmetrically-restricted movements of the cervical and lumbar spine consistent with chronic pain from soft tissue injury…the symptoms are entirely stable, and I believe, highly unlikely to resolve from this point. The prognosis is poor for any improvement or resolution of the symptoms, in my opinion.”
Dr Cochrane assessed the cervical spine injury with a 7 percent WPI:
“per AMA5 Table 15-5 this equates to a DRE Cervical Category II impairment which affords a 5%-8% impairment of whole person. His impairments of activities of daily living seem significant together with domestic and recreational activities, with respect to spinal pain 2%. I would upload this range as being applicable, therefore assessment is 7% impairment of whole person. There is no evidence of any pre-existing cervical spondylosis to necessitate deduction.”
Dr Cochrane noted that the plaintiff self-reported:
“episodic dysfunction of his left side. He describes periods of significant weakness virtually to the point of hemiplegia on the left side. These are unpredictable and painless, in the sense that they are seemingly not the result nor associated with any significant change [in] his overall pain symptoms. [The plaintiff] gave examples of walking and occasionally trying to run and then suddenly his left side (upper extremity and lower extremity both) become non-functional. If he was running, as he was on at least one occasion, he would have to hop on his right foot and then grab on solid objects with his right hand to avoid falling over. Further, he has episodically dropped items with his left hand due to his left hand suddenly becoming non-functional, unpredictable and without warning or preceding symptoms or aura. These episodes are very frequent and “at least 20 times a day”…These episodes always resolve spontaneously without any change in sensation, pins and needles, anaesthesia and other neurological symptoms [the plaintiff] is aware of. These symptoms have been persistent and a diagnosis has not been reached as best [the plaintiff] is aware.”
Dr Cochrane went on to state that the plaintiff reported that “these were first apparent about one-month post injury and haven’t resolved and remain with similar frequency (ie 20 times a day) since they have started.” Dr Cochrane opined that the diagnosis is unclear but it is “highly unlikely” to be a spinal cord lesion. Dr Cochrane opined that:
“irrespective of the specific diagnosis, I believe there is a causal nexus between the injuries and your client’s symptoms in the sense that these symptoms were never suffered prior to the accident, being consistent from approximately one-month post-accident to present date with a persistence frequency of up to 20 episodes each day. Apart from the subject cycling accident, your client was highly unlikely, in my opinion, to develop this dysfunction irrespective of the specific diagnosis.”
Dr Cochrane did not assess the disorder for impairment as he could not provide a specific diagnosis at the time of his first report. He suggested further testing.
Dr Cochrane, in his supplementary report dated 2 June 2024, opined, in relation to a CT scan of the cervical spine performed following his first report: “the CT scan of the cervical spine I am concerned does reveal a high-density lesion or abnormality within the central to left paramedian aspects of the spinal cord from C3/4 to C4/5… [sets out details of MRI scans recommended]… I am suspicious of some subtle height density signal within the spinal canal in the case of the lumbar spine at the L1/2 level”. Dr Cochrane further opined that the most recent CT scan shows loss and in fact reversal of “normal lordosis of the cervical spine which would be consistent with paraspinal muscle spasm from a musculoligamentous injury to the neck and lumbar spine from trauma (that is, what I have described as a whiplash-associated disorder)…”.
The radiologist’s report in relation to the MRI of the spine and brain were performed on 4 June 2024. Dr Cochrane provided a further supplementary report on 25 October 2024. He stated:
“with respect to the MRI scan of the cervical spine as undertaken on 4 June 2024, there is reversal of usual cervical lordosis which is consistent with increased paraspinal muscle tone. There is a disc bulge with some fraying or fissuring of the posterior annulus at the C5/6 level of the cervical spine. I note that the radiologist (Dr Yu Sun (Allan) Lu) reported this as normal, but on my own review of the image, looking at axile images (T2 axial sequence: images 19 to 21 of the series of 32 images), I feel there is increased T2 signal of anterior cord which may represent resolving anterior cord contusion near the midline and which I do not believe is artefactual. That is, the anterior horns of grey matter of the cord appear to be more prominent than the posterior horns compared to other levels of the cord. I accept that this is a subtle lesion but nonetheless I feel this is of significance given [the plaintiff’s] symptoms. Beside mild degenerative changes involving the upper cervical intervertebral discs, there is no other cervical lesion seen. MRI imaging of the thoracic spinal cord aside of showing a mildly prominent central canal, appears normal and does not show any lesion. Likewise imaging of the lumbar spine excluding mild degenerative changes and annular fissuring of the L5/S1 intervertebral disc does not reveal a neurocompressive lesion. These lead me to conclude that there is, in my view, subtle concussive or contusion type lesion of the anterior cord around the C5/6 level without active cord compression. This may explain episodic weakness episodes of the left sided limbs although I am unable to confirm a precise diagnosis on the radiological findings alone”.
Dr Cochrane explained that:
“Straightening of the lordotic curve in the cervical spine is consistent with whiplash type injury or soft tissue musculoligamentous injury to the cervical spine which is entirely reasonable given the mechanism of injury as suffered by [the plaintiff]. This is not a normal finding and reversal of cervical lordosis illustrates ongoing paraspinal muscle tension. Further, the fact that there is disc lesion at C5/6 at the site of the subtle anterior spinal cord abnormality suggests there may have been a contusion or concussive type insult to the cord at this level, more likely than not.”
Dr Cochrane opined “on the balance of probability the protrusion at C5/6 is more likely to have been caused by the subject accident in view of the subtle anterior cord changes also seen at this level.”
Dr Cochrane, in reviewing his first report, opined that the:
“MRI scan shows subtle changes to the anterior cord white matter, in my view, at the C5/6 level…It is conceivable therefore that your client’s subtle spinal cord abnormality at C5/6 may be a cause for episodic motor dysfunction in left upper and lower extremities. I did state in my last report that there was a possibility of a non-organic or functional disorder resulting in the weakness episodes. This still has to be a potential diagnostic option. There is however no evidence of a right hemisphere legion of the brain on MRI scan to suggest this is a cerebral disorder such as cerebral epilepsy. Therefore, I believe it is reasonable to conclude that a subtle anterior cord abnormality at C5/6 may be the cause of the episodic giving way phenomenon affecting the left upper and lower limb. Irrespective of whether there is organic, psychological, functional or combination disorder affecting the left side of the limbs intermittently, I remain of the view that irrespective of the diagnosis, these events have developed consequent to the subject accident and in my view are causally related to the subject incident of 29 May 2017”.
Dr Cochrane, in a file note dated 14 March 2025, did not agree with the opinion of Dr Ault as to the positioning of a person during an MRI scan. He stated that in the plaintiff’s case there was a “complete loss of all curvature of the spine. This suggests that it is highly likely to be muscular and a function of muscle tension on the spine rather than any positioning effect from the MRI scanner”. Dr Cochrane disagreed with Dr Ault’s opinion that there is no subtle anterior cord abnormality around C5/C6 or elsewhere. He observed:
“…effacement of the spinal cord at the C5/6 level which aligns with the visible disc protrusion at that level. When examining axial images of the cervical spine with T2 weighting, I note an increased or more obvious appearance of the anterior horns (T2 signal on MRI) of the spinal cord at that level compared to the remaining levels of the cervical spine. This leads me to conclude that there is a subtle lesion of the anterior horns of the spinal cord at C5/6, which coincides with a disc protrusion at that same level. The anterior horns (also known as the ventral horns, ventral grey matter of the spinal cord, or the motor cells of the spinal cord) primarily contain the nerve bodies and nerve pathways from the movement nerves or motor nerves. They essentially transmit movement from the brain via the spinal cord to the relevant nerves and the periphery. It is plausible that an abnormality in these horns could cause paroxysmal weakness episodes, as these are the motor cells or movement cells of the spinal cord affecting the limbs. When interpreting MRI images, I always review the radiologist’s report but do not rely solely on it. I need to form a clinical correlation between my observations from patient assessment and what their scan actually shows. I spend considerable time reviewing the images themselves and correlating them to the clinical presentation of the patient. Radiologists often do not consider the clinical symptoms of a patient when producing an MRI report because they typically have no ability to clinically assess or examine the patient. In my opinion, radiologists do not have the capacity nor the appropriate training or knowledge to carry out full clinical or neurological assessments.”
In relation to Dr Ault’s statement that there is no radiological evidence of a contusional or concussive type of insult to the spinal cord at any level, Dr Cochrane maintained that he observed a disc protrusion at C5/6 and a “somewhat flattened or effaced spinal cord” which represents a lesion that is probably post-traumatic. Dr Cochrane stated that it “is very reasonable that there has likely been a traumatic disc protrusion centrally at C5/6 which likely caused some form of irritation or compression on the anterior spinal cord at that level”. Further, the fact that there is absolutely no degeneration of the thoracic spine on the MRI suggests it “is less likely that the disc protrusion at C5 and C6 is a degenerative condition.” The plaintiff’s image shows “increased fluid signal within the bulging posterior central disc protrusion, which suggests it is more likely an acute lesion rather than a chronic or degenerative lesion”.
In relation to Dr Saine’s comment that there would have been some clinical neurological sign at the hospital, Dr Cochrane noted that there is no evidence of any detailed neurologic assessment of the upper limbs having been undertaken. Further, Dr Cochrane was of the opinion that there is evidence of atrophy or shrinking or the spinal cord:
“The spinal cord at the C5/6 level measures 0.51cm front to back, whereas at the C4/5 level, which I consider normal, it measures 0.63cm. This represents a relative 1.2 millimetres difference or decrease in the cord dimension at the level of C5/6. This decrease in dimension indicates the cord has compressed, effaced, or otherwise altered in shape, most likely from some form of trauma having occurred previously. This is at the C5/6 level, in line with the disc protrusion and also in line with the abnormality with the respect to the anterior horns.”
Further, in response to Dr Saines’ opinion that the left sided abnormalities would not be explained by the abnormality seen on the MRI, if there was one, Dr Cochrane opined that the “point where the nerve cells run through the ventral horns before they leave to the peripheral nerves is relatively close to the midline and the paramedian or just off the midline region, and in my view within the confines of the C5/6 disc bulge which I can see on the MRI scan. I contend that it was entirely anatomically possible that the motor fibres could have been interfered with by this lesion. The mechanism of injury in this case (where the person was on a bicycle and hit by a car at a speed of 40 to 50 kilometres per hour as mentioned in the hospital notes) reaffirms my view. I think this mechanism of injury was highly likely to have caused personal injury, including a disc lesion of the cervical spine.”
Regarding Dr Saines’ statement that there is no way of saying that any discal abnormality shown radiologically at C5/C6 was caused by the accident, Dr Cochrane opined:
“It is true that a discal lesion can be simply degenerative or caused by innocuous events (spontaneous disc protrusion is possible). However, it is equally possible that a disc protrusion can be caused by a traumatic event damaging the vertebral disc. I don’t feel it is reasonable to say that it is purely only a degenerative condition or caused by innocuous events. My opinion is informed by the mechanism of injury and the plaintiff’s young age. The mechanism of injury was entirely reasonable to have caused personal injury, including a disc protrusion of the cervical spine. Further, the patient’s young age at the time of the incident (18) and the absence of any other significant degeneration within the remainder of the cervical spine and the entirety of the thoracic spine renders it, in my view, less likely that he had a pre-existing degenerative condition. Although the MRI was taken when [the plaintiff] was 25, seven years after the accident, there is a slight increase in the possibility that spontaneous or age- related degeneration may have evolved. However, the combined abnormality of the cervical spine cord leads me to conclude that it still remains more likely, in my view, that the discal legion at C5/6 is, on balance traumatic and not simply degenerative”.
Dr Cochrane opined:
“In summary, I believe the disc protrusion and spinal cord abnormalities observed in [the plaintiff’s] MRI are more likely the result of trauma from the accident he experienced at age 18 rather than degenerative changes or innocuous events.”
In a further note dated 28 March 2025, Dr Cochrane opined that the 2017 CT scan does not show any “clear disc protrusion or reversal or straightening of the cervical lordotic curve” whereas the 2024 CT study shows “reversal of the cervical lordosis or straightening of the cervical spinal column in the imaged region, and with a relative focal point of reversal seemly (sic) centred at C5/6 level. There is evidence of reduced disc height from C2/3 down to C5/6 levels. I see a modest, persisting central to left paracentral disc protrusion at C5/6 which is not overtly compressing the spinal cord. There is not convincing canal compromise nor cervical spinal cord compression on this study.”
The suggested method of straightening of the curve (between the 2017 CT scan and 2024 scan) is:
“…persistent increased paraspinal muscle tone (whether that be the point of complete spasm or a generally increased tone cannot be defined purely radiologically) which [has] led to the loss of normal cervical lordotic curve. This to me suggests that [the plaintiff] has ongoing increase in paraspinal cervical muscle tone leading to loss of cervical lordosis. The changes in serial scans suggest there has been acceleration or progression of degenerative disease which I would consider unexpected, in terms of degree, of a man who is presently 25 years of age…I consider it more likely in the case of [the plaintiff] that increased paraspinal muscle tone attention, being the cause for the reversal of the lordotic curve, resulted from cervical spine paraspinal muscular injury which has not recovered…it is not unusual to not see disc protrusion immediately after an accident”.
Dr Cochrane concluded the note with this opinion:
“I remain of the view that it was very likely given the mechanism of injury, the progression of radiological findings and [the plaintiff’s] current symptoms that he suffered a cervical spinal injury in the accident. This was likely initially a musculoligamentous injury with annular injury to the C5/6 intervertebral disc. This has led to progressive degenerative disc disease and disc protrusion over time and has resulted, in my view, in irritation of the cervical spinal cord albeit not actively compressed on most recent MRI imaging. I believe the cervical spine symptoms suffered by [the plaintiff] can be reasonably causally related to the subject accident.”
In cross-examination, Dr Cochrane confirmed that the mostly likely scenario was that at some point in time there was a protrusion at C5/6 which pressed on the spinal cord and caused damage to the motor nerves in the anterior horns.[91] He considered, given the 2017 CT scans did not show the disc protrusion, the most likely explanation is that there was some damage to the annulus in the accident which developed over time, ultimately allowing the protrusion.[92] Dr Cochrane said “I make the assumption and it is an assumption at this stage, of course, in the absence of any contemporary MRI imaging that there was an annular injury at C5/6 and there were other soft tissue injuries consistent, for example, being thrown a number of metres after being struck by a vehicle. It may well be the neck pain initially was not a major feature, but the injury to the annulars did progress and fray over time.”[93]
[91] Transcript of proceedings on 3 April 2025 page 92 lines 24-27.
[92] Transcript of proceedings on 3 April 2025 page 92 lines 40-44.
[93] Transcript of proceedings on 3 April 2025 page 94 lines 3-8.
The following exchange occurred:
“The accident could have caused a discal injury, but it didn’t necessarily do so?—Well, we certainly can’t prove it no.”[94]
[94] Transcript of proceedings on 3 April 2025 page 94 lines 13-14.
Dr Cochrane accepted that he relied on the self-report of the plaintiff of significant levels of pain since close to the time of the accident and accepted if that were not true and the plaintiff had no pain for years after the event, it would make it hard to “pin this disc protrusion on the accident”; “if it’s given that there were no pain symptoms at all it seems less likely that there was an injury (my emphasis)”.[95]
[95] Transcript of proceedings on 3 April 2025 page 94 lines 28-32.
Dr Cochrane accepted that his opinion that there was abnormality in the ventral horns depends on his interpretation of “those grainy shadows in the C5/6 disc and the C4/5 disc in the little butterfly bits that you’ve pointed out.”[96]
[96] Transcript of proceedings on 3 April 2025 page 97 lines 1-4.
Dr Cochrane explained that the MRI coil would not achieve the level of straightening of the lordosis shown on the scan. He accepted that the lordosis on the 2017 scan might look normal but is not normal for the plaintiff because of the fact that he’s in the brace; that the “key to our mystery might be when he actually got pain”;[97] and that an “active range of motion can be fudged…it’s dependent upon the patient’s cooperation.”[98]
[97] Transcript of proceedings on 3 April 2025 page 99 lines 5-7.
[98] Transcript of proceedings on 3 April 2025 page 99 lines 17-19.
Dr Cochrane accepted that he had come to the view in his first report that the left sided symptoms were unlikely to be a spinal cord injury and one of the reasons he came to that view was because there were no right sided symptoms.[99] He accepted that the MRI shows damage to the anterior horns bilaterally and he “would expect it more likely that there would be bilateral symptoms. They don’t necessarily need to be symmetrical but yes, it would be more likely.”[100] He did, in re-examination, state that the fact that it’s more likely you would expect bilateral symptoms does not extinguish the possibility of unilateral symptoms as “if there was asymmetric compression of the spinal cord, the injury threshold may have been more substantial on one side than the other, leading to, for example, symptoms developing on one side and not the other”.[101]
[99] Transcript of proceedings on 3 April 2025 page 100 line 44 – page 101 line 7.
[100] Transcript of proceedings on 3 April 2025 page 101 lines 15-17.
[101] Transcript of proceedings on 3 April 2025 page 103 lines 18-21.
The plaintiff gave evidence that he works five days a week with Thursdays and Sundays off.[200] He explained that his neck, back and knee pain are better on his days off and having a day off between shifts assists.[201] He would be further assisted with his pain by having Tuesday off.
[200] Transcript of proceedings on 1 April 2025 page 39 lines 29-31.
[201] Transcript of proceedings on 1 April 2025 page 39 lines 37-39.
The plaintiff said in the future he would like to own a duplex and have the passive income from one whilst living in the other. He said that he doesn’t want to work in the IGA store because of his pain and also because he feels “stuck in there…my wage is the same”.[202] He said that he “wouldn’t mind owning a business in the future” and mentioned a business with his partner who is a nail technician.[203] He said he would not be able to perform a labouring role due to his pain levels. If he did not have the accident, his intentions were the “trade business”.[204]
[202] Transcript of proceedings on 1 April 2025 page 43 lines 32-33.
[203] Transcript of proceedings on 1 April 2025 page 44 lines 11-17.
[204] Transcript of proceedings on 1 April 2025 page 45 lines 4-8.
Evidence of Ms Brissett and Master Dugard
I have included a summary of their evidence above. In addition, Ms Brissett has observed the plaintiff taking unauthorised breaks at work.
Dr Khursandi
Dr Khursandi stated that the plaintiff returned to work as a meat packer on a full time basis and he does not anticipate any significant organic barrier to his capacity to continue with his work notwithstanding his symptoms of neck and back pain.
Dr Khursandi accepted in evidence that a neck injury and back injury would impact a person more depending on their employment (examples were provided) and depending on the severity of the back injury or neck injury their working life may be reduced. He agreed that if someone has a back injury and they are performing manual work in a supermarket that it is going to cause an effect and, depending on the severity of the back or neck injury, it may reduce their working life.[205]
[205] Transcript of proceedings on 3 April 2025 page 11 lines 3-36.
Dr Cleaver
Dr Cleaver opined in his first report that “were [the plaintiff] to try and find gainful employment in anything more physical than standing in a production line, he would in my opinion be associated with an almost 100% chance of exacerbating his symptoms and he would not be cleared to perform any kind of work which is laborious on the spine.” He stated that the plaintiff’s:
“ability to work has been affected by this accident and will continue to be so… [the plaintiff] currently struggles at work with pain. The requirement to earning a living currently overrides his physical symptoms. This is in keeping with someone of his age and demographic; however, could easily change. At work, he is embarrassed about his abnormal gait profile, as he starts limping after a short period of time of weight bearing. He avoids heavy lifting and takes frequent breaks. He is very fearful of developing these left sided hemiplegic type symptoms at work, both from a workplace health and safety point of view and from an embarrassment point of view. He reports that they happen about 5 to 10 times per day during his work hours of 2.00pm to 10.00pm.”
In his second report, Dr Cleaver opined that in the plaintiff’s current occupation he avoids heavy lifting and is absent from work one or two times per month with mechanical pains. He opined that the plaintiff “would best be advised to work a 3 day week. Having one day away from work after each working day would allow him time to rest his spine and presumably provide longevity to his working life. I would put him on a lifting restriction of 15 kilograms and restrict him from repetitive bending, twisting and squatting.’
The plaintiff submits that Dr Cleaver’s evidence would equate to a 40 percent reduction in earning capacity.
Dr Todman
Dr Todman in his first report stated that the plaintiff’s “current symptoms will continue to affect [the plaintiff] in day to day activities and employment. He is limited in the physical tasks that he could do and this will affect his hours of work and capacity to do more heavy physical jobs.”
Ms Jackson
The plaintiff also relies on Ms Jackson in support of his claim for future economic loss. Ms Jackson’s opinion is summarised as follows:
“[the plaintiff] remains in the workplace despite his mood complaint… there was no indication from him he was unable to perform or attend work due to psychological complaint; his psychological complaint was more so a general complaint across main life functioning as noted above. However, he did comment on his reduced ability to carry out tasks due to lifting difficulties and he commented on his anxiety associated with uncontrolled and unexpected left sided body tremors. Hence this question is probably best answered by an orthopaedic/neurological assessment. What may be evident however is that in view of [the plaintiff’s] uncertainty and hesitancy in relation to his physical disability, in the workplace he may be reluctant to perform certain duties (for fear of further mishap) which may impact on his work performance and/or attendance.”
Dr Cochrane
Dr Cochrane noted that the plaintiff was currently working as a supervisor and customer service officer in an IGA supermarket 5 days a week, 6 hour shifts. Dr Cochrane stated that the plaintiff “appears to cope with this level of employment despite his symptoms but I would be concerned that you client would not be able to escalate to greater than his current 15 hours per week at work.[206] Dr Cochrane opined that the plaintiff may be:
“Limited in employment opportunities in the future given his ongoing symptoms and the persistence of the episodes of dysfunction/hemiparesis of the left sided limbs places the plaintiff at risk for any vocations that involve the use of heavier equipment or vehicles or in fact, any employment environment where a sudden loss of function in the left sided limbs could result in an injury to himself or others. This would clearly limit [the plaintiff’s] employment opportunities.”
[206] This is incorrect – the plaintiff is working more than 15 hours per week which Dr Cochrane himself details earlier in the report (5 days a week, 6 hour shifts).
Dr Cochrane opined “I cannot say one way or the other whether [the plaintiff’s] career span will be shortened (ie his erstwhile retirement age brought forward) as a result of his injuries. What I believe is more pertinent is your client’s vocational options will remain limited to safer and sedentary type work roles for the long term given his ongoing symptomatology.”
Dr Cochrane, in his note of 28 March 2025, opined that “these episodes will continue to afflict [the plaintiff] indefinitely and there is no active treatment that is likely to assist to treat the paroxysmal left sided hemiplegic episodes”. He opined that the plaintiff is not suited for activities that may place others at risk specifically the operation of heavy or commercial vehicles or heavy or dangerous equipment. Dr Cochrane opined that it is not safe for the plaintiff to operate a motor vehicle or pushbike as “unpredictable loss of motor function or sensation afflicting the upper limb or left lower limb may render him at risk of succumbing to injury when operating vehicles or cycles.”
Dr Murphy
Dr Murphy opined that the plaintiff does not have any mental health condition that is impacting upon his occupational capacity.
Determination
The plaintiff, in written submissions, details two different scenarios:
(a)Scenario A is a claim for loss of $200,000.00 on a global basis plus superannuation. This appears to be based on a 20 percent reduction in earning capacity, with the plaintiff having 44 years of working life remaining and with a 5 percent multiplier resulting in 944. Different wages are then included ranging from the fair work ombudsman minimum wage, a building construction labourer position, and an IGA Nightshift manager (as per payslip up to 2 March 2025) with the respective figures including superannuation being $148,643.00; $196,632.93 and $184,051.30.
(b)Scenario B is a claim for loss of $100,000.00-$150,000.00 on a global basis. This scenario is submitted to be appropriate if the plaintiff’s pain levels are not accepted. It is submitted that even putting the left sided symptoms aside, the plaintiff may suffer diminution of earning capacity based on his injuries. It is further submitted that it is not speculative that the plaintiff will suffer some form of economic loss in the future be that by way of days off, reduced productivity, future aggravations, loss of competitiveness on the open labour market or some loss of opportunity.
It is submitted that irrespective of the court’s finding with respect to the veracity of the plaintiff’s pain reporting, objectively he has had a head injury, chronic adjustment disorder which may further develop if pain levels increased and a disc protrusion in his neck and lumbar spine. It is submitted there is “clear scope for loss.”
The plaintiff submits that he is a manual worker and will likely remain in the manual industry for the foreseeable future and has little if any transferable skills into sedentary employment. Manual employment is likely to have a more deleterious effect on his injuries, it is submitted, and therefore he is more susceptible to aggravations, particularly as he ages. This, in turn, is likely to affect his mental health.
The plaintiff referred the court to a number of cases dividing them into two categories: the first where a claimant has ongoing treatment and continuing symptoms associated with work but who has had no ongoing loss of income[207] and the second where there is evidence of an injury which has had a temporary effect and there is a mere risk of future interference with employment.[208]
[207] Kovacevic v Holland Park Holidays [2010] QDC 279, Lee v Transport Accident Commission [2009] QDC 332, Cook v Bowen [2007] QDC 108, Foster v Suncorp [2017] QSC 135, Terranova v Allianz, unreported, O'Sullivan DCJ, DC No 608 of 2008, 29 May 2009, Nichols v Curtis & QBE [2010] QCA 303, Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211.
[208] Whitney v Whiteway and Anor [2006] QDC 163, Rosewarne v Marshall and Anor [2004] QSC 283, Cooper v Nguyen, Raffault v Gillard [2006] QDC 403, Carroll v Coomer and Anor [2006] QDC 146, Crowther v Caesar, Walker v Durham [2003] QDC 21, Martin v Brown [2005] QDC 381 and O’Brien v Merton and Anor [2020] QDC 299.
The defendants’ position is that there is no proof of any relevant injury which affects the plaintiff’s earning capacity, nor is it likely to cause him any loss of income. As such, there is no basis for any award on a global basis or otherwise. The cases referred to by the plaintiff are all cases where there was an injury established to the satisfaction of the trial judge on which it could be said that it may lead to a loss of income. Further, the defendants submit that in circumstances where the plaintiff has not given any evidence of “so much as one day off work in the last eight years (or at least since he started employment) by reason of any injury, an assessment of $100,000.00 to $150,000.00 would be grossly excessive and beyond the exercise of any sound discretion”.
I accept the defendants’ submission to the extent that there is no evidence that the plaintiff’s injuries have resulted in any time off work to date. Again, the medical records are telling. The plaintiff attended on general practitioner’s to obtain medical certificates for conditions which temporarily prevented him from working but none were injuries from the accident.
The assessment of damages of a person in their mid 20’s is necessarily founded on hypothetical evaluations and defies precise calculations. The assessment is to be made on a global basis. Mere intuition is not sufficient. Section 55 of the Act requires me to state the factual findings underpinning the award and explain the reasoning behind the award. It is necessary to adopt a transparent and reasoned approach based on the evidence, encompassing a range of possible outcomes, some of which may be no more than a real possibility.[209]
[209] Allianz Australia Insurance Limited v McCarthy [2012] QCA 312.
I was referred to cases by both the defendants and the plaintiff as to amounts awarded in other cases for future economic loss. Clearly, each matter turns on its own facts and findings.
I accept the submission for the defendants that there is no evidence that the plaintiff has, to date, suffered any economic loss as a result of his injuries. He has, in fact, increased his earnings from prior to the accident which one would ordinarily expect as a person gains more work experience and takes on different or more senior roles. However, this does not mean that he will not experience economic loss in the future.
I have found that he has suffered injuries with ongoing symptoms including a neck injury (with objective signs although has full movement and restrictive pain that can be managed with medication), a back injury (again full range of movement and restrictive pain managed with medication) and a psychiatric injury (although there is no evidence that he currently meets the DSM V diagnosis for adjustment disorder or any other disorder). Given my findings, much of what is opined by Dr Cochrane, Dr Todman and Dr Cleaver is not applicable as I have not found that the injuries are to the extent and constancy that they determined on self-report.
The mere existence of an impairment does not mean, of itself, that earning capacity is affected. However, given my findings, I am persuaded that the plaintiff’s earning capacity has been diminished by reason of the ongoing restrictive neck and back pain[210] and that such diminution may be productive of economic loss in the future for the following reasons:
(a)The plaintiff may be limited in his ability to undertake moderate to heavy work;
(b)The plaintiff may be less likely to perform overtime given the need to manage his pain symptoms;[211]
(c)The management of his pain symptoms may involve taking more regular breaks;
(d)Manual employment may have a more deleterious effect on his injuries, and therefore he may be more susceptible to aggravations, particularly as he ages. This, in turn, may affect his mental health;
(e)Because of the plaintiff’s comparable youth, the chance of such aggravation or deterioration[212] occurring over time is greater than for someone with fewer working years remaining;
(f)The plaintiff’s experience is in roles which have a manual component and he has little if any transferable skills into sedentary employment particularly given the limitations in relation to the plaintiff’s functioning noted by Ms Jackson in her report;
(g)The limitations detailed at (a)-(f) will place the plaintiff at a disadvantage on the open labour market.
[210] Which may also result in further mental health issues.
[211] I accept the defendants’ submission that there is no evidence that this has occurred to date and the plaintiff has worked significant hours- sometimes over 50 hours per week in a manual role.
[212] Dr Cochrane in his report at page 521, paragraph 6 raises the possibility of a deterioration over time.
At his age, the plaintiff’s life could take various paths and the impact of an injury is difficult to assess however the extent of that loss due to the accident will be limited, in my view, to that detailed above.
I award a global figure of $65,000.00 for future economic loss (including superannuation). To my mind, that is the appropriate figure based on the limitations I have detailed. I recognise that the defendants submitted for a figure in closing submissions of $15,000.00- $20,000.00 but to my mind that is not sufficient given the extent of the injuries I have found and the findings re the reasons for future economic loss. The cases relied upon by the defendants[213] were either much older plaintiffs[214] or had lesser symptoms.[215]At the other end, my view is that the plaintiff’s submissions are excessive.
[213] Allianz Australia Insurance Limited v McCarthy [2012] QCA 312; Goodfellow v Clarke [2015] QDC 193; Evans v Williams & Anor [2018] QDC 210; O’Connor v Wright [2021] QDC 173.
[214] For example, Evans v Williams & Anor [2018] QDC 210 where the plaintiff was 51 years of age and had only worked in part-time employment earning a modest amount.
[215] For example, Goodfellow v Clarke [2015] QDC 193 where a total of $21,850 was awarded involved an item 88 only and the plaintiff did not resort to medications frequently.
To the extent that it is required, the methodology for the global award is based on a loss of $60.00 per week (at current wage this is 2 hours per week of base hourly wage) for 41 years (notional retirement age of 67), and applying the 5% discount tables. There is, of course, an artificiality to this calculation. I do not think it would be 2 hours every week however, over the course of the plaintiff’s working life, and for the reasons detailed at [295] to my mind that is the appropriate calculation for a person who continues to suffer residual neck and back symptoms, is comparably young, his work history and that he has sustained injuries which amount to an ISV of 12 with some having ongoing effects.
Special damages
Whether the plaintiff has incurred special damages in the past and as a result of the collision. If so, what is the proper quantification of any such expenses.
As per the plaintiff’s closing written submissions, he claims a total of $4,022.00 for past special damages. This is made up of $500.00 for past chemist expenses; $1,142.00 for medical attendances;[216] $2,240.00 for MRI expenses[217] and $140.00 for travel expenses.[218]
[216] Exhibit 4 and transcript of proceedings on 1 April 2025 page 56.
[217] Exhibit 5 and transcript of proceedings on 1 April 2025 page 57.
[218] Paragraph 130 of the outline of submissions for the plaintiff reads “the claimant claims say 200km travel expenses at the rate of 0.70 per kilometre which was the rate adopted, albeit by agreement, in Hoveydai v Mak & Anor [2021] QSC 16”.
The defendants conceded at trial the $500 spent on chemist expenses[219] and conceded in closing oral submissions that if I found as I now have, then the medical attendances could be accepted. In relation to the MRI, the defendants’ position is that it was undertaken after a previous adjournment of the trial to explore possible causes of the left sided symptoms and is a medico-legal cost rather than a treatment cost. That appears to be correct. Further, in relation to the travel expenses it is the defendants’ position that there was no evidence to support that part of the claim in the trial. I agree.
[219] Transcript of proceedings on 1 April 2025 page 50 lines 27-30.
As such, I will allow the chemist expenses and medical attendances but not the cost of the MRI and claim for travel expenses. This amounts to $1,642.00.
Future treatment
The plaintiff claims the following:
(a)Pain medication at $500 per year which equates to $9.61 per week. When taken over his life expectancy (multiplier 1006) and reduced on the 5% tables (with 15% for contingencies) the result is: $8,222.11;
The plaintiff gave evidence that he will take medication in the future to alleviate his symptoms. As I have determined that the plaintiff did suffer back and neck injuries in the accident which are managed with Panadol and Nurofen, it is appropriate that an amount be awarded. However, to my mind $9.61 per week is excessive given the restrictive nature of the pain (not constant). Further, I note, whilst not determinative, a global figure of $500.00 was claimed for the past cost. I have formed the view that half of the claim namely $4,111.05 should be awarded.
(b)12 * sessions of adjustment counselling at the cost of $3,500.00;
Ms Jackson stated that the plaintiff would benefit from some adjustment counselling at a cost of approximately $3,500.00. However, there is no evidence that the plaintiff had this or any other psychological treatment and by the time of the plaintiff’s assessment with Dr Murphy, it was opined that he no longer met the diagnostic criteria for an adjustment disorder and no treatment was indicated.
I accept the opinion of Dr Murphy. I have taken into account that Dr Murphy conceded in cross-examination that if the plaintiff has been in pain “for a long period of time he will at some point need some help for his mental health”, but to my mind that is not sufficient for this part of the claim to be awarded. Instead, I will take this into account in considering the allowance for any further treatment.
(c)12 * physiotherapy sessions at the cost of $1,440.00;
The plaintiff, in final oral submissions, indicated that physiotherapy was “factored in”, in case there was some aggravation of his physical injuries in the future. Further, Dr Todman in 2020 recommended a program of physiotherapy for the plaintiff’s cervical and lumbar spine with weekly treatments for up to three months. There is no evidence that the plaintiff engaged in any program of physiotherapy at that time and the plaintiff’s counsel now submits “and that’s why it’s claimed into the future.” The plaintiff’s counsel did concede that it could “quite easily be bundled up into a global amount” as claimed for “future treatment” but that the amount of $5 a week may end up having to be increased.
The evidence does not support this part of the claim however I will take into account in considering the allowance for any further treatment that there may be some very limited need in the future for physiotherapy.
(d)Anti inflammatory medication injections at the total cost of $15,000 as per SLD;
The plaintiff, in oral closing submissions, indicated that this part of the claim was no longer being pursued.
(e)Allowance for any further treatment at $5 per week ($260.00) per year. This equates to $4,275.50 on a global basis.
I accept that this amount should be awarded - $4,275.50. To my mind, this is the appropriate figure which includes taking into account a possible aggravation requiring physiotherapy (noting that there was no evidence that any has been required to date despite the manual jobs being performed by the plaintiff) as well as treatment as foreshadowed by Dr Murphy in evidence (noting again that there is no evidence that treatment has been received to date and that the adjustment disorder resolved (in terms of no longer meeting the full criteria) in the absence of treatment) if the need arose.
Future care
Whether the plaintiff will require paid assistance in the future as a result of any injury suffered in the collision. If so, what is the proper quantification of any such requirement.
The plaintiff pleaded that in the future he will require paid assistance with the heavier domestic and associated type chores as well as house maintenance on an “as required” basis and makes a global claim in the sum of $40,000.00. In closing written submissions, the plaintiff submitted that the care claim is supported by Dr Todman and Dr Cochrane but then put forward an alternative approach which was worded as:
“an alternative approach may be to award the plaintiff care at 3 hours four times a year which produces a weekly figure of .23 hours per week. At say $35 per hour, this would equate to a weekly loss of $8.00 which produces a total loss of $6,840.00 when reduced on the 5% tables with a further allowance for contingencies over his whole life expectancy. This would allow for assistance with heavier tasks on a few occasions throughout the future.”
It is the “alternative approach” that was included in the table at paragraph 218 of the plaintiff’s submissions as what was “contended for”.
The defendants’ position is that the plaintiff’s claim as to any need for care supported by Drs Todman and Cochrane is “completely destroyed by Ms Morante’s failure to corroborate any need on the part of the plaintiff for care.”[220]
[220] Reply submissions of the defendant, page 10, under 213-216.
Plaintiff’s evidence
The plaintiff gave evidence that he can look after himself but if he is in pain he asks for help.[221] In relation to driving he said that he drives but it scares him due to him losing control “over my left side just randomly.”[222] The plaintiff admitted that his girlfriend does most of the work “because she does love me”.[223]
[221] Transcript of proceedings on 1 April 2025 page 28 lines 1-2.
[222] Transcript of proceedings on 1 April 2025 page 29 lines 11-12.
[223] Transcript of proceedings on 2 April 2025 page 61 lines 4-12.
He further gave evidence that he gets assistance with putting his shoes on, washing dishes or folding the clothes if he is in pain.[224] The plaintiff said that his partner provides assistance for one to two hours per week because of his pain.[225] If they lived in a house and if he was in pain then he would need help from someone that “can do more physical work than my girlfriend.”[226] He gave evidence that he aspired to live in a house/duplex.[227]
[224] Transcript of proceedings on 1 April 2025 page 52 lines 27-40.
[225] Transcript of proceedings on 1 April 2025 page 54 line 11.
[226] Transcript of proceedings on 1 April 2025 page 51 lines 33-34.
[227] Transcript of proceedings on 31 March 2025 page 80 line 18; 1 April 2025 page 44 lines 3-4.
Apple Morante
The plaintiff’s girlfriend, Ms Morante, did not support the plaintiff’s evidence as to when she assists him with washing the dishes and folding the clothes. She indicated that she did so when he was not at home.[228] She did state that the plaintiff needs her to “do things for him”.[229]
[228] Transcript of proceedings on 4 April 2025 page 81 lines 15-25.
[229] Transcript of proceedings on 4 April 2025 page 80 lines 43-45.
Dr Cleaver
Dr Cleaver opined that “it is my professional opinion that allowance ought to be made for [the plaintiff] to have assistance with household chores and food preparations…”. In his 2024 report, Dr Cleaver stated that the plaintiff reported that “90% of all household chores are now subserved by his girlfriend. [The plaintiff] assists with grocery duties and laundry duties and his girlfriend cooks all of [the plaintiff’s] meals. On questioning, [the plaintiff] admitted that all of these activities produced pain. He did also admit that most of the requirement for all of this assistance is by choice as he is the money earner in the household…[The plaintiff] reported that his girlfriend often helps him with dressing activities especially below knee level.”
Dr Khursandi
Dr Khursandi stated in a note of 16 June 2021 that the plaintiff has no incapacity to undertake domestic activities/activities of daily living as desired.
Dr Cochrane
Dr Cochrane noted that the plaintiff reported that he performs “perhaps 10% of the housework with his girlfriend performing the most. He will perform some light cleaning. His girlfriend does most of the washing and all of the cooking in the home.” Dr Cochrane opined that the plaintiff has the capacity for “light housework, domestic and social activities…”. He noted that the plaintiff’s partner:
“With whom he resides performs some 90% of the housework but this is a historical feature as best I can ascertain. [The plaintiff] does have to defer more difficult or robust cleaning activities to his partner and tends to perform lighter cleaning activities. As such, [the plaintiff] realistically would require either gratuitous assistance or commercial assistance when gratuitous assistance is not available for heavy cleaning activities, yard work, lawn mowing or any maintenance activities around the home as a result of his ongoing symptoms from injury.”
Dr Cochrane opined that it is not safe for the plaintiff to operate a motor vehicle or pushbike as “unpredictable loss of motor function or sensation afflicting the upper limb or left lower limb may render him at risk of succumbing to injury when operating vehicles or cycle.”
Dr Todman
Dr Todman opined in his report dated 15 April 2020 that “in the home environment, he requires assistance for heavy domestic tasks and home maintenance…”.
Dr Todman stated in evidence that the home maintenance jobs he would require assistance with are lifting up items in the home, general maintenance within a home and that the plaintiff stated he doesn’t drive distances because of pain.
Determination
The plaintiff stated that his partner provides assistance for one to two hours per week because of his pain but this was not supported by Ms Morante’s evidence. The plaintiff stated that if they lived in a house and if he was in pain then he would need help from someone that “can do more physical work than my girlfriend.” The opinions of Dr Cleaver, Dr Cochrane and Dr Todman are based on self-report that I have not accepted as to the extent and constancy of his neck, back and knee pain. I prefer the evidence of Dr Khursandi that the plaintiff has no present incapacity to undertake domestic activities/activities of daily living. However, I am prepared to accept that in the future there may be a need as per the plaintiff’s evidence (i.e. if they lived in a house he would require assistance for the heavier home maintenance jobs).
I will award damages of half the alternative basis contended for by the plaintiff namely $3,420.00. Whilst I accept that it is probable that in the future he will require assistance with heavier tasks it is unlikely to be 3 hours, four times per year over the duration of his life particularly given that he does not presently reside in a house and gave no evidence, that I accept, of currently needing assistance. I will allow 3 hours, two times per year over the duration of his life recognising that there is no current need but that the need may be greater as he gets older which will balance out the award.
Summary of damages
| General damages | $19,770.00 |
| Special damages (past) | $1,642.00 |
| Future treatment | $8,386.55 |
| Future care and assistance | $3,420.00 |
| Future economic loss (including superannuation) | $65,000.00 |
| Total | $98,218.55 |
| Less 25% contributory negligence | -$24,554.64 |
| Judgment order | $73,663.91 |
Orders
My orders are:
Judgment for the plaintiff in the sum of $73,663.91.
Unless the parties can agree on costs, submissions on costs from both parties, limited to no more than five pages must be exchanged and filed no later than 4.00pm on 28 May 2025.
Any reply to those submissions, limited to no more than three pages, must be exchanged and filed no later than 4.00pm on 30 May 2025.
Liberty to apply.
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