Cook v Bowen

[2007] QDC 108

DISTRICT COURT OF QUEENSLAND

CITATION:

Cook v Bowen & Anor [2007] QDC 108

PARTIES:

TRACEY LEANNE COOK

Plaintiff

AND

SHAUNN BOWEN

First Defendant

AND

ALLIANZ AUSTRALIA INSURANCE LTD

Second Defendant

FILE NO/S:

BD1971/06

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

15 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2007

JUDGE:

McGill DCJ

ORDER:

That the second defendant pay the plaintiff $70,297.22.

CATCHWORDS:

DAMAGES – Personal injuries – measure of – multiple injuries – assessment of ISV

Ballesteros v Chidlow [2005] QSC 280 – followed.

Coop v Johnston [2005] QDC 79 – followed.

COUNSEL:

J. P. Kimmins for the plaintiff

D. Schneidewin for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

McInnes Wilson for the defendant

1. The plaintiff was injured in a motor vehicle accident on 28 October 2004 when the vehicle she was driving, which had stopped behind another vehicle that was giving way to oncoming traffic before turning right, was struck from behind by the first defendant’s vehicle.  Liability was admitted on the pleadings, and it remains to assess the plaintiff’s damages.  These must be assessed in accordance with the Civil Liability Act 2003 and the Civil Liability Regulation.

1. The plaintiff’s vehicle was struck with some considerable force, and the plaintiff was initially shaken but not immediately conscious of any significant injury:  p 19.  To some extent she was distracted by concern about the welfare of four children who were in the car at the time.  A few hours later she was aware of a headache, pain in the back and neck, and left wrist, pain in a leg, and a general sensation of feeling sore.  About one week later she saw her general practitioner who recommended analgesics[1] and physiotherapy.  She tried physiotherapy but found it quite painful:  p 27.  The problems in the wrist and back subsided after about a week, but the pain in the left side of the neck and the left shoulder blade have stayed the same; the headaches have changed to a tension over the head and neck at times, mainly when driving.  The symptoms are not constant but she gets them every day; various activities bring them on or stir them up:  p 21.  The plaintiff’s credit was not challenged in cross‑examination, and I accept her evidence.

   [1]She does not take these now:  p 27.

Medical Evidence

1. She was seen for the purposes of a report on 4 October 2005 by Dr Pentis, an orthopaedic surgeon:  Exhibit 1.  He noted that she had complained of severe pain for about a week, after which the pain had been essentially constant.  That was also the plaintiff’s evidence to me:  p 19.  The principal source of pain was in the neck and the left shoulder blade, with a vice like pressure in the neck and occipital musculature.  Turning her head was difficult, for example in reversing a vehicle, and there was difficulty in lifting things, there was some sleep disturbance and difficulties with some household activities, in particular ironing.  She was…