Jaksa v Sweeny
[2025] QDC 2
•30 January 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Jaksa v Sweeny & Anor [2025] QDC 2
PARTIES:
NEZA JAKSA
(plaintiff)
v
KYLE SWEENY
(first defendant)
&
QBE INSURANCE (AUSTRALIA) LIMITED (ABN 78 003 191 035)
(second defendant)FILE NO:
D128/22
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court
MaroochydoreDELIVERED ON:
30 January 2025
DELIVERED AT:
Maroochydore
HEARING DATES:
5 June 2024, 6 June 2024, 7 June 2024, 12 June 2024, 24 July 2024
JUDGE:
Cash DCJ
ORDERS:
THERE WILL BE JUDGMENT FOR THE PLAINTIFF IN THE AMOUNT OF $148, 826.49.
CATCHWORDS:
PERSONAL INJURY – MOTOR ACCIDENT – ASSESSMENT OF DAMAGES – WHERE THE PLAINTIFF WAS INJURED IN A COLLISION BETWEEN TWO CARS – WHERE THE PLAINTIFF ALLEGES THAT SHE SUSTAINED A MUSCULOLIGAMENTOUS INJURY TO HER CERVICAL SPINE AND A RIGHT SHOULDER INJURY – WHERE LIABILITY FOR THE COLLISION IS ADMITTED – WHERE LIABILITY FOR THE CLAIMED RIGHT SHOULDER INJURY IS IN ISSUE – WHETHER THE PLAINTIFF SUFFERS FROM THE RIGHT SHOULDER INJURY BECAUSE OF THE COLLISION – WHERE QUANTUM OF DAMAGES IS TO BE ASSESSED
CASES:
R V FLEMING [2023] NSWSC 560, DISTINGUISHED
COUNSEL:
T A Nielsen for the plaintiff
R D Green for the second defendantSOLICITORS:
Travis Schultz & Partners for the plaintiff
Barry Nilsson Lawyers for the second defendant
Ms Jaksa was injured in a car crash on 25 March 2021. Her car was stationary in heavy traffic on Caloundra Road when the first defendant collided with the rear of her car. It is accepted that the first defendant was negligent. The second defendant (‘the insurer’) is the licensed insurer for the first defendant’s car. The first defendant did not participate in the trial.
Ms Jaksa alleges that she sustained a musculoligamentous cervical spine injury (the ‘neck injury’) and a right shoulder injury because of the collision. The dispute between Ms Jaksa and the insurer concerns the extent of her injuries and the damages to which she is entitled. The insurer accepts liability for the neck injury but denies that the collision caused the right shoulder injury pleaded by Ms Jaksa. The result is that there is a significant gulf between the amount claimed by Ms Jaksa and the amount the insurer says she should receive by way of damages. Ms Jaksa submits she is entitled to nearly $850,000, though she accepts that an award of this amount is not possible because of the money limit of the District Court. In contrast, the insurer submits she should be awarded about $96,500.
For the reasons which follow, I am not satisfied that Ms Jaksa has proved it is more probable than not that she suffers from an injury to her right shoulder to the extent she claims. In short, that is because I do not accept Ms Jaksa’s evidence about the consistency and severity of the symptoms which she says she experienced in the years following the crash. This finding has the result that Ms Jaksa’s entitlement to damages is much less than she has claimed.
The collision and its aftermath
The collision occurred at about 4.15 pm on 21 March 2021. It was a Thursday afternoon. Unsurprisingly, the traffic heading east on Caloundra Road was heavy and there was congestion. Ms Jaksa was driving east in a Mitsubishi Lancer sedan, a compact car, when she came to a stop because of the traffic congestion. The first defendant was also driving east in a dual-cab Toyota Hilux. He was behind Ms Jaksa and failed to stop in time. The first defendant’s car collided heavily with the rear of Ms Jaksa’s car.
After the collision Ms Jaksa felt shocked and confused. She called her boyfriend, Brenden Andrew, then drove the car home. Ms Jaksa’s home was close – just a two-minute drive from the site of the collision. After arriving home, Ms Jaksa called the police and reported the collision. She went to bed later that evening and woke up in pain. It was then that Ms Jaksa went to the Caloundra hospital and reported a headache, sore neck, and an extremely sore shoulder with pain going down her arm to her hand. Ms Jaksa was placed in a neck-brace and advised to seek treatment at Sunshine Coast University Hospital. She did not want to travel in an ambulance so took an Uber instead. Ms Jaksa spent the day being examined before returning home that night.
Ms Jaksa’s personal circumstances and employment
At the time of the collision Ms Jaksa was 24 years old. She was born in Slovenia but moved to Australia with her family when she was in her teens. Ms Jaksa lived with her partner, Brenden Andrew, with shared financial arrangements.
Ms Jaksa was employed on a casual basis as a nail technician at a beauty salon. She returned to work in May 2021, two months or so after the collision, initially on reduced hours and performing less onerous tasks than she had before the collision. Ms Jaksa continued to work, and her hours of work increased, until February 2023 when she resigned. Following her resignation, Ms Jaksa has been self-employed, running her own nail salon from premises at Mooloolaba.
The insurer admits that Ms Jaksa suffered some economic loss from the reduction in her work hours immediately after the collision. The insurer also admits Ms Jaksa has incurred compensable expenses relating to the neck injury and that she has received some gratuitous care and assistance.
The principal issue to be resolved is to determine what injuries can properly be attributed to the collision of March 2021. To resolve this issue, it is necessary to consider and analyse the evidence concerning Ms Jaksa’s injuries.
Ms Jaksa’s evidence of her injuries and their effect
Ms Jaksa gave evidence that she did not feel pain until she woke up the morning after the collision. She described experiencing a headache and pain down her right arm, with a ‘pins and needles’ sensation in her middle and ring fingers. Ms Jaksa said that she experiences headaches every day and her shoulder constantly hurts. Her symptoms have not changed or improved from when she first went to hospital the day after the collision. The pain is worse when it is cold.
Ms Jaksa testified that the pain in her neck and shoulder prevented her from performing pedicures at work. It also meant her other nail services took much longer to complete than they had before the collision. During 2021 her hours of work were reduced because of restrictions during the COVID-19 pandemic. In late 2022 Ms Jaksa resolved to leave her employer and to work for herself. She did this in early 2023, renting space in commercial premises from which she provides services as a nail technician.
At the time of the hearing, Ms Jaksa said that she worked four to five days each week. She testified that she staggered her work and took time with her appointments, sometimes turning people away or cancelling appointments if she was in too much pain. She serviced a maximum of five clients per day, compared to eight to 10 clients per day in her employment before the collision.
Ms Jaksa testified that after the collision, she was unable to clean and complete many of her usual household tasks. Mr Andrew arranged for his mother, Ms Orreal, to work as a general cleaner. Mr Andrew testified that the arrangement was for Ms Orreal to be paid $50 per hour, though curiously Ms Jaksa said she was not aware of this arrangement until a couple of weeks before the hearing.
The claim as to Ms Jaksa’s alleged right shoulder injury
The effect of evidence led by the plaintiff about the right shoulder injury was that she experienced, and continues to experience, constant and debilitating pain in her right shoulder and arm. This pain, she attested, prevents her from completing tasks which involve strenuous, sustained, or repetitive upper limb activity. Such tasks were said to include vacuuming, mopping, hanging clothes on a clothesline, or other activities in which the right arm is elevated above her head. Ms Jaksa also reported her symptoms are aggravated by periods of sitting, which affects her work as a nail technician. The consequence, so it is claimed, is that Ms Jaksa sometimes must leave work early because of the pain and tries to avoid driving.
The plaintiff pleaded, and the insurer disputed, that she: -
(a) Suffers constant neck pain radiating to the right trapezius, shoulder, arm, elbow and forearm;
(b) Has a reduced range of motion of her neck, particularly when moving to the right side and looking down;
(c) Suffers from muscle spasms in the right trapezius;
(d) Suffers pain, tingling and altered/reduced sensation to all five fingers on the right hand, particularly the middle finger. Her hand often feels swollen;
(e) Frequently needs to elevate her arm in order to obtain some relief from her symptoms;
(f) Struggles to sleep due to right sided shoulder, neck and arm pain;
(g) Struggles to drive a motor vehicle for more than 20 to 30 minutes due to aggravation of her pain;
(h) Has difficulty walking her dog because of pain and discomfort;
(i) Has had difficulty returning to recreational tennis, which she previously enjoyed;
(j) Has had to modify her gym activities so as to not cause her pain;
(k) Experiences difficulties undertaking her duties of employment which have been greatly affected by her difficulties in looking down, hunching over, reaching and using static postures which cause her great discomfort.
Proof of these matters is central to Ms Jaksa’s case.
The nature of the right shoulder injury pleaded by Ms Jaksa is such that there is no objective evidence of its existence. That is, there is no observable bone or muscle injury that might be detected by an x-ray or CT scan. Proof of the right shoulder injury depends upon acceptance of Ms Jaksa’s testimony about its symptoms.
Prior to the hearing, Ms Jaksa saw Dr Stephen Byrne, a neurosurgeon and Ms Suzanne Cox, a physiotherapist. Dr Byrne and Ms Cox were engaged by Ms Jaksa’s lawyers. Ms Jaksa also saw Dr Prue Fitzpatrick, an orthopaedic surgeon, and Ms Claire Welshe, an occupational therapist. Dr Fitzpatrick and Ms Welshe were engaged by the insurer. Their evidence is of substantial relevance in determining the extent of Ms Jaksa’s injury.
It is against this background that it is necessary to consider aspects of Ms Jaksa’s testimony which cause me to doubt her evidence is reliable.
Has Ms Jaksa proved she suffered the pleaded right shoulder injury?
Pre-trial disclosure revealed several occasions when Ms Jaksa posted images or videos on social media of herself moving her right arm in a manner which might be considered inconsistent with the injury she claimed. The combined effect of these images and videos is to raise doubt about the reliability of Ms Jaksa’s evidence. It is helpful to consider each in turn, along with the opinions of the medical practitioners about the significance of the recordings. I then address some other aspects of Ms Jaksa’s evidence which caused me to doubt her reliability.
Photo of Ms Jaksa perched on a fence at Point Cartwright – April 2021
This photograph shows Ms Jaksa sitting on the top rail of a fence near the lighthouse at Point Cartwright. The fence is relatively tall and would be about chest height to Ms Jaksa if she were standing. The posts and top tail are made of wood and there are three strands of wire forming the rest of the barrier. Ms Jaksa is seated facing toward the camera. She appears to be relaxed, and her feet are well off the ground. Her hands are in her lap, and she is holding the lead to two dogs, who are seated on the ground in front of her. Each dog is of medium size and muscular build.
The photograph was taken within weeks of the collision in March 2021.
Ms Jaksa’s evidence was that she and Mr Andrew were out walking the dogs, one of which was soon to pass away, when Mr Andrew indicated he wanted a photograph of Ms Jaksa with the dogs. Mr Andrew lifted Ms Jaksa onto the fence and took the photograph. Ms Jaksa was not asked any questions about how Mr Andrew lifted her onto the fence or the movements and mechanics which were involved. When Mr Andrew gave evidence, he said that he ‘picked her up and put her up there’ but could not recall how he did that. Mr Andrew did agree that Ms Jaksa balanced herself on the top rail after being lifted there by Mr Andrew.
Ms Welshe, the occupational therapist engaged by the insurer, was questioned about the photograph. Ms Jaksa had reported to Ms Welshe that her pain levels were high in the four weeks after the collision, particularly when performing any task involving overhead reaching. When Ms Welshe saw the photograph, she thought the bilateral upper limb force required if Ms Jaksa climbed onto the fence herself was inconsistent with her reports of pain.
In cross-examination Ms Welshe was asked to consider a scenario in which Mr Andrew lifted Ms Jaksa onto the fence. Ms Welshe had considered that possibility, and remained concerned that a person with Ms Jaksa’s reported injury would not be able to endure the process without significant pain. She also considered the need for Ms Jaksa to use her arms for stability while on the top rail of the fence would produce an impact on her body which was inconsistent with the reported right shoulder injury.
Ms Cox, the physiotherapist engaged by Ms Jaksa’s lawyers, did not disagree with Ms Welshe. Of the possibility that Ms Jaksa climbed onto the fence herself, Ms Cox said she ‘would find it difficult to come up with a reasonable strategy physically of how you would get on a fence that would involve bilateral arm elevation, I think, above the limit of what I saw in my assessment.’ She agreed with Ms Welshe’s opinion that even if Ms Jaksa were lifted onto the fence, the injury Ms Jaksa reported would still cause pain resulting from the use of arms for stabilisation.
Seen in its totality, this evidence causes me to doubt Ms Jaksa’s testimony.
It is difficult to reconcile Ms Jaksa’s report of the severity of the injury and its associated pain with the evidence that she was lifted bodily onto the top rail of the fence and sat there smiling while Mr Andrew took the photograph. Ms Welshe and Ms Cox agree that if Ms Jaksa’s injury was as she reported, she would have experienced some pain in being manoeuvred onto the fence in that way. Ms Jaksa gave no evidence of experiencing any such pain. Nor did she say that there was any reason for photographing her sitting on the fence rather than in front of it, where the view would have been just as pleasant.
I think that Ms Jaksa would not have gotten herself into the position shown in the photograph if she was experiencing significant pain. The evidence persuades me that Ms Jaksa was probably not suffering any significant pain to her arm and shoulder at the time the photograph was taken. This is inconsistent with her evidence of continuing, almost constant pain in her shoulder, and of her inability to perform tasks with her right arm.
Photo of Ms Jaksa on a boat holding a fish – August 2021
This photograph shows Ms Jaksa on a boat holding a fish which appears to have been freshly caught. She has her right arm extended to the side with her upper arm horizontal at 90 degrees to her body and her forearm vertical. Ms Jaksa’s hand is slightly higher than her head. She is holding onto a fishing line with her right hand. Suspended from the line about ten centimetres below her wrist is a fish (perhaps a coral trout or rock cod). The fish is sizeable and extends down well below Ms Jaksa’s right elbow. Ms Jaksa is smiling broadly.
Ms Jaksa said she went on a fishing trip to Seventeen Seventy with Mr Andrew and others. Someone else caught the fish and Ms Jaksa posed with it in the manner shown. Ms Jaksa was not fishing herself. She said the fish was not heavy and that she was able to lift it, observing that she only had a problem with ‘lifting over the head’. She described the fish in the photograph as a ‘tiny little fish’ which she held for about 10 seconds.
Ms Welshe expressed some reservation about this activity. She described the photograph as depicting Ms Jaksa holding a large fish above head height with her right arm in an extended position. Ms Welshe thought this was inconsistent with Ms Jaksa’s reports of pain and reduced capacity in a variety of tasks requiring the use of her arm. In cross-examination her opinion softened a little. Ms Welsh accepted that the tests she administered showed that Ms Jaksa could lift the fish, assuming it weighed less than two kilograms. But Ms Welsh remained of the view that the range of movement involved in lifting and posing the fish would have caused pain.
In this regard, Ms Welshe said that while Ms Jaksa may have been physically capable of holding a fish weighing two kilograms or less, the pose shown in the photograph was inconsistent with Ms Jaksa’s report that she would avoid using her right arm out of fear of pain. Ms Welshe said, ‘the combined effect of the weight … and the choice to use the right arm are inconsistent with … her assessed and reported pattern of avoiding activities that cause pain.’
Ms Cox thought that Ms Jaksa could hold a fish as shown, with her assessment being that Ms Jaksa could lift as much as four kilograms on occasions. But Ms Cox also thought that what was shown in the photograph was ‘an unusual activity for someone with [Ms Jaksa’s] degree of … reported pain’.
Ms Jaksa’s own evidence was that she had not caught the fish and was not showing it off. She agreed that she had no particular reason to pose in the manner shown in the photograph and she did not say the pose caused her pain. Having regard to this evidence, I think it is more probable that Ms Jaksa did not experience pain or difficulty in holding the fish, and it was not an activity she sought to avoid, out of fear of pain. This is inconsistent with her reports of the extent and severity of pain to her shoulder and arm and causes me to doubt the reliability of her evidence.
An observation concerning Ms Welshe’s evidence
There was some criticism of Ms Welshe by the plaintiff, but I do not think that criticism diminishes the validity of her opinions. In final submissions, it was submitted on behalf of Ms Jaksa that Ms Welshe ‘overreacted’ to the photographs posted on social media and that she showed bias by declining to confer with Ms Jaksa’s lawyers before the hearing. As to the former, a fair reading of Ms Welshe’s evidence does not support a conclusion that she ‘overreacted’. Rather, Ms Welshe explained the reasoned basis for the changes in her opinions between first seeing Ms Jaksa and becoming aware of the photographs and other media. As to the latter, this is not a case where I would be prepared to conclude that Ms Welshe’s conduct is a sign of bias or partiality.
An expert witness has a duty to assist the court and it not an advocate for a party.[1] They are permitted to confer with an opposing party’s lawyers, and a failure to do so may give rise to an inference that the expert is not impartial. R v Fleming [2023] NSWSC 560 is an example of a case where a judge was prepared to infer that the failure of an expert to confer was a sign of partiality. But Fleming was an unusual case. It concerned a criminal prosecution for an offence of engaging in a terrorist act, contrary to Commonwealth legislation. The Crown relied upon opinion evidence of an expert in so-called ‘right-wing extremism’. Dealing with an objection to this opinion evidence, the trial judge ruled that the study of right-wind extremism was not, on the evidence before her Honour, a field of specialised knowledge and was not admissible pursuant to the Uniform Evidence Law.
[1]Uniform Civil Procedure Rules 1999 (Qld), r. 429F.
In obiter comments, her Honour noted that she would have excluded the evidence in any event as being prejudicial beyond its legitimate probative effect. Finally, her Honour commented on evidence that the witness first agreed to meet with the defendant’s lawyers, then withdrew her agreement after the lawyers had travelled interstate for the meeting. Her Honour found that this, coupled with evidence that much of the expert witness’s funding for research was derived from law enforcement agencies, ‘must at least raise the possibility that the witness may be seen as aligned with one party to the proceedings.’
Fleming does not establish any point of principle binding on this court, and the circumstances of this case are quite different. Ms Welshe gave evidence that in 20 years in practice she had not been asked to confer with another party’s lawyers.[2] When correctly advised by the insurer’s lawyers that she was not obliged to confer, Ms Welshe declined. It was not put to Ms Welshe that she was biased or partial, so I do not have the benefit of her response to such an allegation. While Ms Welsh did refer to the insurer’s lawyers as her ‘instructing solicitor’, there was no exploration what she understood that term to mean.
[2]Others have reported similar experience –J D Henry, ‘Expert Evidence: A view from the bench’ (2016, speech to the Australian Lawyers Alliance National Conference), [25].
In these circumstances I am not prepared to draw the influence that Ms Welshe was biased or partial in a way that diminishes the weight which can be placed on her opinions. In coming to this conclusion, I am assisted by the fact that there were substantial areas of agreement between Ms Welshe and Ms Cox, which seems to me to contradict a suggestion that Ms Welshe was not acting independently and impartially.
Video of Ms Jaksa falling in water – December 2021
This video was taken when Ms Jaksa was holidaying with Mr Andrew in the Whitsundays. The video is 20 seconds long. Ms Jaksa is walking in front of the camera in water that is about knee deep. Mr Andrew can be seen gesturing toward Ms Jaksa, who replicates his gesture by turning to her right and extending her right arm so that it is behind and above her head. Mr Andrew playfully pushes Ms Jaksa on her right shoulder, causing her to stumble into the water.
Ms Welshe thought that the movement of Ms Jaksa in the video was inconsistent with her reported symptoms. She testified that the movement of Ms Jaksa’s head and arm when gesturing to Mr Andrew demonstrated a greater range of movement than during Ms Jaksa’s assessment.
I do not think this video says much about the extent of Ms Jaksa’s injury. Her gesture seems spontaneous and may have occurred unthinkingly and without regard to pain. Similarly, her fall into the water after being pushed may not have been preventable. This video is different to the posed images of Ms Jaksa sitting on the fence or holding the fish. There is clearer evidence these poses would, if Ms Jaksa’s account of her injury were to be accepted, cause her pain, and therefore it is strange that she would pose in this way. The video recording does not permit me to conclude that Ms Jaksa consciously carried a movement in a manner inconsistent with her reports of the injury.
Photos of Ms Jaksa in the Whitsundays – December 2021
One photograph shows Ms Jaksa in waist deep water. She appears to be wringing water out of her hair. Her left arm is extended up and behind her head. Her right arm is in a similar, but less acute, pose. Another photograph shows Ms Jaksa with her hands holding the brim of her hat, as if to stop it from blowing away in the wind.
These photographs do not give me reason to doubt Ms Jaksa’s evidence. Ms Welshe was concerned that the movement of Ms Jaksa’s arm may have caused her pain if she was injured as claimed. But that view rested upon unproven assumption about the amount of shoulder rotation and the force involved. On the evidence of Ms Welshe and Ms Cox, it is possible that Ms Jaksa could have moved her arm into the position which is shown without causing pain. These two photographs are not inconsistent with Ms Jaksa’s claim.
Photos of Ms Jaksa drinking from a can with her head tilted back – December 2021 and August 2022
The first photograph is of Ms Jaksa in front of a sign for a resort or restaurant. She is drinking from a can, holding it in her right hand with her elbow perpendicular to her body and her head tilted back. The second photograph shows Ms Jaksa crouching near a campfire. She is drinking from a can, holding it in her right hand with her elbow perpendicular to her body and head tilted back.
Ms Welshe and Ms Cox both thought that the poses shown in these photographs would have provoked pain. There was no evidence from Ms Jaksa that she experienced pain when this photograph was taken. It does seem to me that Ms Jaksa’s capacity to pose in this way in each photograph, without reported pain, is inconsistent with her evidence of the extent of her symptoms.
Photo of Ms Jaksa following a concert in Brisbane – February 2023
The photograph is of Ms Jaksa and Mr Andrew standing together on the walkway that connects Caxton Street to Roma Street. The photograph is accompanied by the following caption.
Seen red hot chili peppers, had a million jager bombs, feet all blistrd up from dancing like a psycho, stopped in at a Serbian fellas place to have some chevapi, life is beautiful.
There is nothing remarkable about the pose shown in the photograph. Ms Welshe’s concern was that if Ms Jaksa’s injury was as claimed, she would not have been able to dance ‘like a psycho’ to the extent she had blisters on her feet. Ms Welshe did not say, and she was not asked, what she understood ‘dancing like a psycho’ to mean. I am unable to determine from Ms Welshe’s evidence what level of dancing would have been sufficient to provoke pain for Ms Jaksa.
Ms Jaksa’s evidence was that she danced at the concert for an hour and that while she did have blisters afterwards, that was from her new shoes. Whatever description might be applied to this level of dancing activity, ‘like a psycho’ seems an inapposite epithet. There is little reason to doubt Ms Jaksa’s evidence. The only contradictory suggestion comes from Ms Jaksa’s caption. A written caption, unlike a photograph or video, may not always reflect objective truth. It is obvious that at least one part of the caption – that Ms Jaksa drank a million ‘jager bombs’ – was exaggerated. In these circumstances I cannot conclude Ms Jaksa’s dancing was longer or more energetic than she said.
That being the case, Ms Welshe’s concerns about this caption fall away.
Video of Ms Jaksa at staff party – Christmas 2023
This video is a short montage of recordings at a staff party, accompanied by music. Ms Jaksa and several other people are present. The video is sped up to some degree. In one scene, Ms Jaksa appears to drink a ‘shot’ using her right arm. In another she performs ‘the splits’ without any apparent hinderance or discomfort. Ms Jaksa begins in a standing position then extends her right leg in front of her body while simultaneously sliding her left leg backwards until she is on the floor. At the same time Ms Jaksa turns her head to the left so that by the end she is looking over her left shoulder. At the end of this manoeuvre Ms Jaksa’s right arm appears to bear some of her weight. The next scene shows Ms Jaksa holding a mop. She has her right hand on the top of the handle with her left hand guiding the mop. Ms Jaksa throws her head back as if in a dance pose before quickly pushing the mop forward, then back, then toward the camera. Her right leg kicks up as she pushes the mop forward. Ms Jaksa did not show any signs of pain or discomfort.
Ms Jaksa attributed her ability to do the splits to many years of gymnastics. She said she felt no symptoms in her neck or arm when she performed this manoeuvre. Ms Jaksa’s explanation for the use of the mop bears setting out in full.
I grabbed a broom because they were making frozen – like margaritas or something. They were blending and one of the girls didn’t close the blender, so the drinks went everywhere and I picked up the mop and I just mopped it quick and then everyone started laughing at me, ‘Oh, you finally picked up a mop and you’re mopping’, because I – it was just a joke, because I never would mop the whole shop, because I can’t do that. So when they saw me with the mop in my hands, they made a joke and they filmed it, like, ‘Oh, she is mopping finally’, you know? But I just mopped the – the margarita, the alcohol that was all over the floor, so – and yeah.
I would first observe that what is shown in the video is plainly not what Ms Jaksa described in her evidence. There is no sign of anything spilled on the floor and Ms Jaksa’s movements with the mop are unlike any I have seen when the aim of the exercise is to clean. It is clear to me that Ms Jaksa was playfully dancing with the mop and was not involved in any kind of cleaning exercise.
The significance of this is not just that it may be unlikely that Ms Jaksa could perform with the mop in this manner if she was injured as she claims. It is that she has given an account of the event so different from the observable reality that it casts a shadow over the reliability of her evidence. Ms Jaksa’s evidence involves such a distortion of what can be seen on the video – even allowing for the fact the video has been sped up – that I am concerned she has, consciously or unconsciously, reconstructed events to put her actions in a more favourable light.
There is then the evidence of Ms Welshe that she would expect someone injured to the extent Ms Jaksa claims to move slower and more cautiously, rather than with the speed and fluidity shown in the video. This point may not be of great significance, especially if it is assumed that Ms Jaksa had consumed enough alcohol for it to have some anaesthetic effect, but it adds to the concerns I have with Ms Jaksa’s evidence.
The manner in which Ms Jaksa performed the splits raised similar concerns for Ms Welsh who said: -
Her neck is rotated right around to her left, and that’s – that’s unusual, but she is clearly – you can see by the position of her upper limbs that she’s bracing her arms for – for contact, whether it was gentle or otherwise. She’s in a – in a position that would be stretching the muscles that she says are causing pain on that right side whilst simultaneously bracing for impact. In my view, that’s inconsistent with a musculoskeletal injury of the – of the neck and shoulder.
Ms Cox thought that Ms Jaksa’s ability to perform the splits may have been helped by yoga, but there is no evidence of what yoga Ms Jaksa may have been doing around this time. Otherwise, there was nothing said by Ms Cox which directly contradicted Ms Welshe’s evidence set out above. In these circumstances, I accept the evidence of Ms Welshe, which was logical and had a reasoned basis.
What is the significance the ‘social media’ evidence?
I am conscious that uploads to social media do not always represent reality, and that photographs and videos are only a snapshot or a moment in time. It is appropriate to be cautious in drawing conclusions from such evidence. But in this case the evidence is not one or two images. It is a series of images and videos over time from which a conclusion may be more comfortably drawn.
A few of Ms Jaksa’s social media posts are not significant. The photographs of Ms Jaksa in the water and holding her hat in the Whitsundays do not contribute to my doubts about her evidence. The same can be said of Ms Jaksa’s assertion of ‘dancing like a psycho’ at a concert in Brisbane. But that leaves her perching on a high fence at Point Cartwright weeks after the collision, posing with a fish in August 2021, lifting her right arm and tilting her head back to drink as shown on the photographs of December 2021 and August 2022, and the video of the staff Christmas party from late 2023.
Taken together, this evidence leads me to conclude that there were several occasions across more than two years when Ms Jaksa performed movements with her right arm in a manner inconsistent with her claims as to the extent of her injury. She did so on these occasions without any reported pain and in a manner that suggested she was not troubled or hindered by pain in her arm or hand. Of course, an injured person may have good days and bad days. The trajectory of an injury is not always linear. But what I have found as to the significance of the social media posts adds weight to my conclusion that I could not be satisfied it is more probable than not that Ms Jaksa has proven her pleaded claims as to the injury, especially her claim of suffering constant neck pain radiating to the right trapezius, shoulder, arm, elbow and forearm.
Other evidence of Ms Jaksa’s injuries
So far, I have only mentioned the evidence of Ms Welshe and Ms Cox. I have done so because their evidence seemed to be of the most significance in assessing the significance of the social media posts. But it remains necessary to consider the evidence of Dr Byrne and Dr Fitzpatrick and its effect on Ms Jaksa’s claims.
Dr Stephen Byrne
Dr Byrne saw Ms Jaksa twice – once in late 2021 and again in April 2024. During the first examination, Dr Byrne assessed that Ms Jaksa suffered from a reduced range of neck movement compared to what would be expected for a woman of her age. He thought she could only turn her head 50% of the normal range to the right. But when Dr Byrne conducted this assessment, he did not use an inclinometer to measure the precise angle of rotation, relying instead on his own observation to estimate the degree. Nor did he repeat the testing more than once.
An MRI scan and x-ray of Ms Jaksa’s neck and right shoulder area did not show any signs of damage to organic structures. As a result, Dr Byrne was left to rely upon the symptoms reported by Ms Jaksa and the results of his clinical examination. Where Dr Byrne’s opinions varied from those expressed by Dr Fitzpatrick, the disagreement largely stemmed from Dr Byrne’s willingness, and Dr Fitzpatrick’s reluctance, to accept Ms Jaksa’s account of her symptoms.
At least some of the social media images were brought to Dr Byrne’s attention in early 2024. He saw the staff party video from Christmas 2023, but did not think Ms Jaksa’s movements were inconsistent with her reported symptoms.
The effect of Dr Byrne’s evidence was that his opinions rested heavily on Ms Jaksa’s own reports of her symptoms. To the extent there was some objective support in Dr Byrne’s assessment of her range of motion, this assessment was done without the assistance of an inclinometer as was not repeated to ensure consistency of results.
Dr Prue Fitzpatrick
Dr Fitzpatrick saw Ms Jaksa in May 2022 and again in May 2024. On the first clinical assessment, Dr Fitzpatrick used and inclinometer and repeated the tests three times. She found a reproducible asymmetry of rotation in Ms Jaksa’s neck – she could not turn to the right as far as she could turn to the left. Otherwise, Dr Fitzpatrick observed no clinical signs of injury. Dr Fitzpatrick referred to the possibility of radiculopathy (a ‘pinched nerve’) but said Ms Jaksa’s reported symptoms were non-verifiable. After the first assessment, Dr Fitzpatrick thought Ms Jaksa suffered a 5% whole person impairment because of the neck injury.
In May 2024 when Dr Fitzpatrick saw Ms Jaksa again, she repeated the clinical tests. On this examination there was no practical difference in Ms Jaksa’s ability to turn her head to the right and to the left. As a result, Dr Fitzpatrick assessed that there was no whole person impairment. This finding may be contrasted with Dr Byrne’s assessment and that of Ms Welshe. Dr Fitzpatrick accepted the description that her later assessment was an ‘outlier’ and that injured persons may have good days. When Dr Fitzpatrick was asked if this meant her second assessment should be put to one side, she said
Well, I think Clare Welshe’s first report, Dr Byrne’s first report, and my first report were all performed about – within a year, I – from memory, of the incident, and I think that my most recent report is obviously more like three years since the incident. So rather than attributing this to good day, bad day, I would attribute it to what I would consider to be the relatively normal progression of a [musculoligamentous injury] to the cervical spine, which is it does come good with time.
When questioned about the results of Dr Byrne’s 2024 assessment, Dr Fitzpatrick doubted the validity of his assessment because of the methods he employed.
What is the significance of the evidence of Dr Byrne and Dr Fitzpatrick?
I do not think Dr Byrne’s evidence assists Ms Jaksa in proof of the claimed right shoulder injury. While Dr Byrne found a significant reduction of the range of movement of Ms Jaksa’s neck, this says nothing of the existence of the symptoms Ms Jaksa reported experiencing in her right arm. And the methods employed by Dr Byrne leave something to be desired. While he may be an experienced clinician, the use of an objective measuring device such as an inclinometer would have assisted in understanding the precise results of his assessment. Of even more significance is the lack of repetition, which would have allowed the comparison of results and improved the verifiability of his conclusions.
I prefer the evidence of Dr Fitzpatrick for these reasons.
Further difficulties with Ms Jaksa’s evidence
There are other aspects of Ms Jaksa’s evidence which contribute to my doubts about her reliability.
First, there is what she told Ms Cox; the physiotherapist engaged by Ms Jaksa’s lawyers. Ms Jaksa first saw Ms Cox on 12 March 2022. During the consultation Ms Jaksa told Ms Cox her symptoms were sometimes so bad it was necessary for Ms Jaksa to leave work early. Ms Jaksa gave the example that the day before the assessment, 11 March 2022, she found her symptoms so aggravated by 1.30 or 2.00 pm that she had to leave work at 3.00 pm instead of staying to her normal 5.00 pm finishing time. However, it emerged during Ms Jaksa’s cross-examination that on the same day she went out for dinner at a tavern near her home. Ms Cox thought this was unusual behaviour for a person whose pain was so severe that they had to leave work early. I agree with Ms Cox.
Ms Jaksa’s explanation for these events was to say that she is always in pain and that she can go out to eat dinner in pain. That may be so, but I still consider it unlikely that a person experiencing pain to such a degree they cannot work would go out to dinner the very same night. As Ms Cox observed, a more expected result would be for the person to take some painkillers, apply a heat pack and rest.
Ms Jaksa’s behaviour seems to me to be inconsistent with claims as to the extent and severity of her pain.
Secondly, when Ms Jaksa saw a massage therapist in February 2024, she completed a form prior to the massage. On part of this form Ms Jaksa ticked ‘no’ as to whether she was suffering chronic pain. On another part she indicated her goal for the massage was ‘relaxation and pain’ and shaded a diagram of the human body to indicate discomfort with her right arm and shoulder. If Ms Jaksa’s answer was true, and she did not suffer chronic pain, that is inconsistent with her evidence at the hearing. If her answer was false, it suggests Ms Jaksa was dishonest about an issue going to the heart of this hearing.
In cross-examination Ms Jaksa agreed that she gave answers on the form which she knew to be false because she thought it was ‘none of their business’. This answer does Ms Jaksa little credit. It may be accepted that a questionnaire at a massage business is not a statutory declaration. But it is still concerning that Ms Jaksa was comfortable being dishonest about an apparently trivial matter. In re-examination the position was not improved. Ms Jaksa’s explanation became that in the past when she told the massage therapy where she was in pain, the massage therapist avoided that area. This led Ms Jaksa to think ‘in my head … it’s much easier for me to say no, and then when she – and I would draw where I’m sore.’ I do not think this explains why Ms Jaksa would have marked that she did not suffer from chronic pain. The answer to that question had nothing to do with which areas might be the subject of the massage.
While it is a small matter, I think this detracts from Ms Jaksa’s credit.
Thirdly, in cross-examination it was put to Ms Jaksa that in December 2022 she consulted with a doctor on the telephone. It was suggested to Ms Jaksa that she told the doctor a woman contacted her to allege Ms Jaksa’s boyfriend had been unfaithful and as a result the woman contracted a disease. It was suggested Ms Jaksa queried being tested herself. Ms Jaksa was firm and clear in her denial that this conversation occurred. She also denied suggestions about a similar conversation in 2020.
In re-examination Ms Jaksa admitted to both conversations. She gave an explanation for why she made those calls to the Doctors. Ms Jaksa was asked why she did not give that explanation when asked in cross-examination. Her answer was to say
I honestly couldn’t even remember. I couldn’t remember. I couldn’t think of it. I couldn’t think clearly. I was – was just under so much stress and I’m – I’m just not sure. As I said, so many things running through my head and I don’t know how to explain, sorry.
I do not accept this was an honest answer. When these matters were raised in cross-examination it was done in a measured way. The questioning was not rushed and Ms Jaksa had time to consider her answers. There was a considerable time between when Mr Green first raised the topic and when he returned to it later in cross-examination. It is difficult to avoid the conclusion that Ms Jaksa knew her denial of the occurrence of these conversations in cross-examination was false. It is understandable that Ms Jaksa may not have wished to admit these conversations out of a sense of embarrassment, but it is troubling that Ms Jaksa’s first instinct was to be untruthful. In any event, embarrassment is a wholly insufficient excuse for being less than frank in her evidence.
These matters lead me to conclude that there are times when Ms Jaksa has been less than candid and add to my doubts about her evidence.
Conclusion – Ms Jaksa has not proved the pleaded right shoulder injury
Taken collectively the matters set out above cause me to seriously doubt Ms Jaksa’s evidence about her symptoms. The result is that I am not prepared to act on her evidence alone. There was evidence of some occasions when friends or family members observed Ms Jaksa in apparent pain. I have considered this evidence, but it does not dispel the doubts I have about the constancy and severity of Ms Jaksa’s symptoms.
I am not satisfied that it is more probable than not that Ms Jaksa has suffered, and continues to suffer, from a right shoulder injury to the extent she pleaded in her statement of claim. I am not satisfied she suffers constant neck pain radiating to her right shoulder and arm with the symptoms she pleaded in her statement of claim. In short, Ms Jaksa has not proved the case she pleaded. This means that Ms Jaksa’s entitlement to damages must be assessed having regard to the admitted neck injury.
As to the significance and extent of the neck injury, for the reasons set out above I prefer the evidence of Dr Fitzpatrick and Ms Welshe. It may be accepted that within about a year of the collision, Ms Jaksa suffered from a reduction in the range of movement of her neck which was replicated across multiple assessments. But by May 2024 Ms Jaksa was relatively unaffected such that Dr Fitzpatrick observed no meaningful reduction in her range of movement. This is consistent, I think, with there being some improvement over time.
Of much more significance is my conclusion that Ms Jaksa has not proved the constant and debilitating pain she claimed. As Dr Byrne observed, ‘[i]n terms of disability, particularly as it impacts activities of daily living and work, … the main restriction is from pain and the radiculopathy in the arm, rather than the range of motion as such.’ When it comes to the assessment of damages, a reduction in the range of movement of Ms Jaksa’s neck will not significantly affect her capacity for work or home duties.
I do not think the injury is a ‘moderate cervical spine injury’ according to item 88 of the Civil Liability Regulations (‘the regulations’). That is because I do not accept there is a ‘moderate permanent impairment, for which there is objective evidence, of the cervical spine.’ Rather I think the neck injury falls under item 89 as a ‘minor cervical spine injury’. The significance of this finding is discussed further below.
General damages
The neck injury falls to be assessed as a minor cervical spine injury. An ISV at the top of the range is appropriate and there should be some uplift to reflect the evidence of the effects of the collision as observed by Ms Jaksa’s friends and family. I would assign an ISV of 5 to this injury. General damages will be in the sum of $8,100.
Past economic loss
At the time of the collision, Ms Jaksa was employed and earning between $720 to $760 per week. There was some reduction in her hours of work after the collision. Then, in early 2023 Ms Jaska, became self-employed. Her income has always been variable as it depended upon the number of clients she serviced. There is an unpredictability to the demand for her services as a nail technician, which in a tourist area like the Sunshine Coast is to some degree seasonal. Ms Jaksa gave evidence about what she predicted would have been her capacity for work, and resultant income, if not for her injuries. My findings in relation her injury and symptoms, and my concerns about Ms Jaksa’s reliability, means that I am not prepared to act upon this evidence. This means that the calculations provided by the plaintiff about a loss of income, including figures premised on Ms Jaksa having to turn customers away, cannot be used. It is appropriate to take a global approach to the assessment of past economic loss.
Ms Jaksa certainly worked reduced hours in the time following the collision. But my findings in relation to her injury and symptoms, and my preference for the evidence of Dr Fitzpatrick and Ms Welshe, must mean that there could only be a modest reduction in Ms Jaksa’s capacity to earn income. Having regard to the evidence of Ms Jaksa’s earnings, and doing the best I can, I think a figure of $50,000 comfortably compensates for her past loss of income because of the collision.
Past loss of superannuation
At some point between 2021 and 2023 Ms Jaksa determined she would become self-employed. There was much evidence and dispute at the hearing about exactly when this decision was reached. I do not think it is possible or necessary to determine a precise date on which Ms Jaksa decided she would become her own employer and put that plan into effect, though clearly, she had reached that decision by the second half of 2023.
The loss of past superannuation payments is also tied to the loss of prior income from Ms Jaksa’s previous employment. The result is that it is difficult to calculate a precise figure. The figure of $50,000 I have arrived at above includes the loss of income since Ms Jaksa became self-employed at the end of 2022. Broadly, I think the loss of income before and after this event should be split evenly. Ms Jaksa was entitled to superannuation payments of 10.5% of her income from her employment. I think Ms Jaksa’s lost superannuation should be calculated as 10.5% of $25,000, which results in an award of $2,625.
Loss of future earning capacity
Ms Jaksa is still very young. She may work for many years to come. This makes it difficult to precisely assess her potential future economic loss. Because I do not accept that Ms Jaksa’s earning capacity has been impaired to the extent she has claimed, I cannot rely upon her calculation that over the next 39 or so years she will be deprived of about $386,000 in income.
Again, I think a global approach is to be preferred, though I would be more generous than the insurer. While I think Ms Jaksa’s capacity to perform her work has not been impaired the extent she has claimed, there is always the contingency of some future aggravation of the neck injury. Because Ms Jaksa is young, the chance of something like that occurring over time is greater than for a person who will not be working for so long.
In these circumstances it is appropriate to allow $75,000 for the loss of future earning capacity.
Past special damages, past and future care
The parties agree as to an amount of $3,345,27 for past expenditure. There is dispute about other items of expenditure and of the need for assistance from Ms Orreal, the mother of Ms Jaksa’s boyfriend.
There were aspects of the evidence concerning the assistance provided by Ms Orreal which were unsatisfactory. Principal among these was the wholly inadequate method of recording the amounts said to be owed to Ms Orreal, which involved numbers written on a whiteboard on a refrigerator. But it is unnecessary to dwell on this. Consistent with my view of the evidence, there was no established need for assistance to the extent claimed by Ms Jaksa.
It is admitted that Ms Jaksa incurred some need for care and assistance. In light of this admission, it is appropriate to make some allowance for the assistance provided by Ms Orreal in the weeks immediately following the collision and before Ms Jaksa returned to work. Having regard to the vagueness of the evidence, I think it is appropriate to make an allowance for Ms Orreal’s assistance for six hours per week for the first eight weeks after the collision. At the rate of $50 per hour which Ms Orreal was paid, that amounts to $2,400.
Ms Jaksa has spent money on massages and other allied health services which she claimed as part of past special damages. My finding as to the severity of her injury means that I cannot conclude this expenditure was necessary. These amounts should not be included in the award.
While I do not think Ms Jaksa has proved a need for future care to the extent she has claimed, there may be some need in the event there is an aggravation of the neck injury. An allowance of $2,000 should be made to accommodate future treatment which may be necessary if there is an aggravation.
Other amounts
There should be interest on the Ms Jaksa’s past economic loss.
The ‘Fox v Wood’ amount to be allowed is agreed at $2,412.
There may be adjustments to be made to account for Workcover or Medicare payments.
Conclusion
Ms Jaksa should be awarded the following amounts.
1. $8,100 by way of general damages.
2. $50,000 for past economic loss.
3. $2,625 for past loss of superannuation.
4. $75,000 for future loss of income.
5. $7,745.27 for past special damages, past and future care.
6. $2,412 for ‘Fox v Wood’.
7. $2,944.22 in interest.
The total award will be $148, 826.49.
While I expect costs should follow the event, I will give the parties an opportunity to be heard as to the appropriate orders.
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