Knight v Johnston

[2014] QMC 11

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Knight v Johnston & Anor [2014] QMC 11

PARTIES:

LUKE KNIGHT

(Plaintiff)

v

GRACE JOHNSTON

(1^st Defendant)

and

RACQ INSURANCE LIMITED

(2^nd Defendant)

FILE NO/S:

M12096/13

DIVISION:

Magistrates Courts

PROCEEDING:

Damages – Personal Injuries

ORIGINATING COURT:

Magistrates Court Brisbane

DELIVERED ON:

24 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2014

MAGISTRATE:

The Honourable Judge Carmody QC

ORDER:

Judgment for the plaintiff in the sum of $6,020.70 ($300.70 + $5,720).

CATCHWORDS:

TORTS - NEGLIGENCE - PERSONAL INJURY –  future economic loss

COUNSEL:

K Howe for the first and second defendants

SOLICITORS:

Plaintiff appeared on own behalf

Cooper Grace Ward Solicitors for the first and second defendants.

Plaintiff appeared on own behalf

The issues

1. The self representing plaintiff claims damages for ongoing back problems resulting from a rear end motor vehicle accident (MVA) on 22 May 2011.

1. Liability is admitted. Specials are agreed at $300.70. Quantum for general damages and further economic loss is contested by the third party insurer.

Medical evidence

1. The plaintiff had no history of back or neck pain prior to the MVA.

1. Exhibit 2 records that he had back pain in the lower thoracic and lumbar regions on 1 June 2011.

1. On 2 June a pathologist reported a 25% loss of height anteriorly in the T11 due to wedging. Otherwise body alignment, disc spaces and joints were all within normal limits.

1. By 6 June 2011 pain was decreasing without help of analgesics.

1. An MRI scan on 15 June 2011 revealed multi-level prominent schmorls nodes in the mid to lower thoracic spine from T6 inferiorly to T12. Mild wedging of T8 to T12 from a maximal at T11 with slight posterior disc bulging at T11-12 was evident. No features of acute crush fracture were apparent. Scheuermann’s disease was the most likely cause.

1. The back injury was investigated by orthopaedic surgeon, Dr Cameron Cooke, on 12 October 2012 at the Mater Private Hospital.

1. Dr Cooke’s report (ex. 3) recites his qualifications and experience in orthopaedics. He has been Director of Orthopaedics at the Princess Alexandra Hospital since January 2004 and continues to conduct private practice. He is specially trained and certified to evaluate permanent impairment.

1. The plaintiff expressed some concerns about Dr Cooke’s expertise and that his professional opinions were too unreliable to justify much weight.

1. However, I am amply satisfied that Dr Cooke has specialised knowledge based on his training study and experience in the orthopaedic field and that he has expressed opinions are primarily based on that knowledge.

1. Dr Cooke’s diagnosis was of muscular ligamentous strain of the lower thoracic and upper lumbar spine which he described as a “minor injury” consistent with involvement in a motor vehicle accident.

1. Dr Cooke considered the plaintiff had a good prognosis and did not believe he needed any domestic assistance. No ongoing intervention or therapeutic treatment was indicated either.

1. The injury from the road accident, according to Dr Cooke, was not likely to cause any restriction to future employment prospects. No surgery, medication or further treatment is indicated.

1. This diagnosis was criticised and, in some respects, challenged by the plaintiff but was not contradicted by contrary expert opinion.

1. The plaintiff gave evidence of restricted movement in certain directions (from left to right) and a clicking in the joints when sitting for long periods such as in the cinema. Walking, he says, offers the best relief.

1. He said the level and frequency of pain curtailed normal activity but plateaued out after about 7 months.

General Damages  

1. The defendant contends for $12,950 under this head based on item 92 (moderate spine damage) with an ISV of 10.

1. The insurer, by contrast, submits that the plaintiff’s injuries fall within item 94 (minor thoracic or lumbar spine injury with no significant clinical findings or other objective signs of residual impairment).

1. The uncontradicted specialist orthopaedic medical evidence provides the most satisfactory evidentiary base for assessing the nature and extent of the plaintiff’s residual spine damage. I find that the injury is a minor (not moderate) one falling within but at the top of item 94.

1. Accordingly, the monetary grant of general damages will be $5720 (ISV 4 x $1180 per sch 6A, Civil Liability Regulation 2003 2(a).

Future economic loss

1. The court may award damages if it is satisfied that an injured person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and other relevant matters.

1. In Schmidt v Dobb and Australian Associated Motor Insurers Ltd (2006) QDC 006, for example, Nase DCJ ordered $25 000 for future economic loss to a 25 year old woman with computer skills on the basis of a 5% impairment of the whole person likely to cause a loss of work and income.

1. The plaintiff claims $25,000 to $30,000 for future economic loss based on labour market disadvantage at current levels (1.7 hours per week at $17.16 per hour over thirty years on the 5% tables).

1. He is single, aged 29 (27 on the day of injury), has no children, still lives with and is financially supported by his parents.

1. The defendant does not suggest that the award for future economic loss claimed by the plaintiff is excessive on a global basis but denies that the injury has caused any impairment to working capacity or will be productive of future economic loss.

1. The plaintiff was not working at the time of the injury. He has been out of work since March 2007. Previous employment in the retail industry (petrol station attendant at Coles) involved heavy lifting and stacking fridges. He says he has been unable to stand for long periods of time and cannot lift anything heavier than a watering can two thirds full since the MVA.

1. The only other significant paid employment he has had was at Woolworths in 2002.

1. The plaintiff finished year 12 of schooling and obtained a diploma in business at University of Southern Queensland after the three year course of study in 2009.

1. He has not successfully applied for gainful employment for which he is qualified and has the capacity to perform since the road accident. Under cross examination the plaintiff explained that he discontinued active job seeking due to back pain and an unwillingness to risk aggravating it by taking on work that was too strenuous for him.

1. Dr Cooke is of the opinion that the MVA will not cause functional limitations preventing fitness for gainful employment and that stable and stationary equating with a zero percent whole person permanent impairment.

Conclusions

1. Even allowing for a short period of disability resulting from the accident I am satisfied that the plaintiff is not in the current employment market and would not accept any appropriate job offers within he actual capacity out of genuine but misplaced concerns for risks of overextending himself.

1. The plaintiff has failed to demonstrate any compensable disadvantage in the jobs market. I am satisfied that he has not suffered and is unlikely to suffer any future loss of earnings as a result of the MVA (Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643).

1. He has not shown that his earning capability has been diminished by reason of the injury to the extent of it being likely to be productive of financial loss (Nichols v Curtis [2010] QCA 303 at [14]).

Orders

1. There will be judgment for the plaintiff in the sum of $6,020.70 ($300.70 + $5,720)

1. Starting with the second defendant the parties are to exchange and file submissions on costs by close of business Tuesday 22 April 2014.