Devitt v Nominal Defendant

[2006] QSC 146

SUPREME COURT OF QUEENSLAND

CITATION:	Devitt v Nominal Defendant [2006] QSC 146
PARTIES:	LEIGH WILLIAM DEVITT (plaintiff) v NOMINAL DEFENDANT (defendant)
FILE NO/S:	SC No 2625 of 2004
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	13 June 2006; 14 June 2006
JUDGE:	de Jersey CJ
ORDER:	There will be judgment for the plaintiff against the defendant in the amount of $80,206.78
CATCHWORDS:	DAMAGES – PERSONAL INJURIES – ASSESSMENT – assessment of quantum of damages for personal injuries – 5 % cervico/thoracic disability – temporary lumbar/psychiatric disturbance
COUNSEL:	J R Webb for the plaintiff K F Holyoak for the defendant
SOLICITORS:	Robbins Watson for the plaintiff Corrs Chambers Westgarth for the defendant

1. In the mid-afternoon of 26 January 2001, the plaintiff was riding a bicycle along Currumbin Creek Road at Currumbin.  A motor vehicle collided with him, from behind.  That vehicle did not stop at the scene, and was not subsequently identified.  The plaintiff was injured.  He consequently brought this proceeding against the Nominal Defendant, which has admitted liability.  It remains to assess the quantum of damages. 

Thoracic/cervical injuries and disabilities

1. There is substantial debate as to what injuries and disabilities the plaintiff suffered in consequence of the collision.  I deal first with the injuries and disabilities which are clearly established.

1. He suffered fractures to the third to eighth ribs on the left side, and those fractures healed.  He also suffered a soft tissue injury to his cervicothoracic spine.

1. Doctor Licina, an orthopaedic surgeon, considers the plaintiff has a consequent permanent two percent loss of function of the cervical spine and three percent loss of function of the thoracic spine (Ex 2, p 41).

1. Another orthopaedic surgeon, Dr White, assessed a five percent “whole person” impairment because of the condition of the plaintiff’s cervical spine.  That doctor linked the thoracic disability to a disability in the lumbar spine, producing a 15 percent whole person impairment because of the condition of his thoraco-lumbar spine, of which he attributed one quarter, 3.75 percent, to this collision.  As will emerge, my finding is that this collision did not cause, or permanently aggravate, any enduring lumbar disability.

1. In the result, there is no notable difference between Doctors Licina and White as to the extent of permanent disability consequent upon the injury to the plaintiff’s cervical and thoracic spines.  I find they have led to a five per cent disability, as assessed by Dr Licina.

1. I turn now to the practical effect of that disability upon the plaintiff.

Relevant pain and suffering and interference with amenity

1. After the accident, the plaintiff was taken to hospital but not admitted.  He felt very sore, and was given morphine.  He then went to stay with friends.  With the plaintiff’s pain continuing, they arranged for his readmission to hospital, where he received outpatient treatment over a week or so. 

1. The plaintiff gave oral evidence of continuing pain in his back, and in his ribs area on…