Murphy v Madill - [2025] QSC 103

SUPREME COURT OF QUEENSLAND

CITATION:

Murphy v Madill [2025] QSC 103

PARTIES:
DANIEL JOSEPH MURPHY

(plaintiff)

v
SCOTT DAVID MADILL

(first defendant)

JAMES RUDDELL

(second defendant)

AAI LIMITED ABN 48 005 297 807 TRADING AS SUNCORP INSURANCE

(third defendant)

FILE NO:

10749 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2023, 30 May 2023, 31 May 2023, 1 June 2023,
2 June 2023 and 7 August 2023

JUDGE:

Sullivan J

ORDER:

1. Judgment for the plaintiff against the third defendant for $635,146.81 for damages.

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT GENERALLY – GENERALLY – where the plaintiff seeks damages for personal injuries arising out of two motor vehicle accidents – where liability is admitted by the defendants – where the plaintiff has pre-existing psychiatric conditions – where the plaintiff has degenerative and inflammatory physical injuries – where damages are assessed under the Civil Liability Act 2003 (Qld) – whether the injuries suffered by the plaintiff were caused by the accidents and what damages follow from each injury

DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARING CAPACITY– GENERALLY – where the plaintiff was admitted as a solicitor in the Supreme Court between the first and second accidents – where the plaintiff seeks damages for past and future economic loss based on the income of a lawyer in a mid-tier firm earning in the high range – where the plaintiff was working as a sole practitioner under supervision – whether the award for damages for past and future economic loss should be made on that basis

Civil Liability Act 2003 (Qld), s 54(2), s 55, s 59, s 60
Civil Liability Regulation 2014 (Qld)

Bezant v Davis & Anor [2010] QSC 229
Brown v Daniels [2018] QSC 209
Caffrey v AAI Limited [2019] QSC 7
Kemp v Gold Coast Hospital and Health Service [2024] QSC 259
Medlin v State Government Insurance Commission (1995) 182 CLR 1
R v Daniel [1998] 1 Qd R 499
Stevens v DP World Melbourne Limited [2022] VSCA 285
Sutton v Hunter & Anor [2021] QSC 249

COUNSEL:

S D Anderson for the plaintiff
R C Morton with E J Williams for the defendants
S J Tan appearing on behalf of the Legal Services Commissioner

SOLICITORS:

Macrossan & Amiet Solicitors for the plaintiff
Jensen McConaghy Lawyers for the defendants

Table of Contents

Introduction

Background facts prior to the two motor vehicle accidents

Education and employment history of the plaintiff prior to the two motor vehicle accidents

(a) Granite Traders

(b) Alert Coffee

(d) Safe and Sound Building Society

Further academic and vocational activities up to the first motor vehicle accident - 10 January 2017

The first motor vehicle accident - 10 January 2017

Employment and academic pursuits of the plaintiff after the first motor vehicle accident to the second motor vehicle accident - 28 August 2019

The second motor vehicle accident - 28 August 2019

Employment of and study by the plaintiff after the second motor vehicle accident

Second motor vehicle accident - physical injuries

(a) Introduction

(b) The orthopaedic evidence

(d) Lumbar spine and bilateral hip injuries

(e) Conclusion - total whole body impairment from physical injuries

General Damages: Psychiatric injuries incurred by the first motor vehicle accident and the second motor vehicle accident

(a) Introduction

(b) The psychiatric evidence

(d) Interest having regard to s 60(1)(a) Civil Liability Act 2003 (Qld)

Past loss of earning capacity and future loss of earning capacity

(a) Introduction

(b) Plaintiff’s approach

(d) Initial observations on the parties’ contentions

(e) Unsuitability of the plaintiff to work within a legal firm

(f) Pre-accident conduct of the plaintiff

(g) Difficulties in treating pre-existing and post-existing psychiatric conditions

(h) Period between the first accident and the second accident

(i) Period of professional work after the second accident

(j) Determination of the approach to past and future economic loss

(k) Resolution of past and future economic loss

(Table 1)
(Table 2)

(l) Interest on past economic loss

(m) Past superannuation loss

(n) Future superannuation loss

Future loss of earnings attributable to impairment of entrepreneurial skills

Past gratuitous assistance

Interest on past gratuitous assistance

Future paid assistance

Special damages paid by the plaintiff

(a) First category - amounts accepted as owing, together with interest

(b) Second Category - amounts accepted as owing, but for which interest is not payable

(d) Fourth Category - amounts in dispute, but if allowed, interest should not be awarded

Future damages claimed

(a) Additional future vehicle expenses

(b) Additional future travelling expenses

(d) GP consultations

(e) Physiotherapy

(f) Chiropractic treatment

(g) Participation in multi-disciplinary pain management program

(h) Psychological therapy

(i) Psychiatric treatment

(j) Psychotropic medication

(k) Analgesics medication

(l) Fees for management of financial affairs

Summary of Damages

Order

Introduction

The plaintiff seeks damages for personal injuries which arose out of two motor vehicle accidents. The first motor vehicle accident occurred on 10 January 2017. The plaintiff was not a party to the accident but came upon it on his way home from a medical appointment. He found a man lying on the road surface near a prime mover truck and sought to render aid. That man had earlier been struck by a motor vehicle driven by the first defendant, causing him to sustain serious injuries from which he passed away. The plaintiff says that he suffered a psychiatric injury as a result of his experience of the trauma of that accident.
The second motor vehicle accident occurred on 28 August 2019. The plaintiff was driving his motor vehicle in a southern direction on the Pacific Motorway near Upper Mount Gravatt. The plaintiff’s motor vehicle was hit from behind by the second defendant’s vehicle. The plaintiff alleges that he suffered an exacerbation of his psychiatric injury, in addition to suffering physical injuries.
The third defendant is the insurer for both the first and second defendants.
Liability is not in issue in this case. It is accepted that both the first and second defendants had been negligent in their actions which had caused the two motor vehicle accidents. It is not in dispute that a duty of care was owed in each instance by the respective defendants to the plaintiff to use reasonable care in the operation of their vehicle so as to avoid causing him injury, including psychiatric injury.
No contributory negligence issues arise in this case.
The real issues in this case concern:
·what injuries were suffered by reason of each accident; and
·what damages follow from each injury.
Within these two real issues there are a number of sub-issues. This case is complex because the plaintiff has longstanding psychiatric conditions derived from childhood trauma. The plaintiff also has been diagnosed with Autism Spectrum Disorder (“ASD”), which further adds to the complex pre-accident psychiatric makeup of the plaintiff. Despite these past issues, the plaintiff had been gainfully employed or engaged in various types of study for a large part of his life.
In these reasons, I will:
(a)seek to deal with and make findings in respect of the background facts and the psychiatric state of the plaintiff prior to the events the subject of this proceeding;
(b)make findings in relation to the two motor vehicle accident events;
(c)make findings in relation to the injuries suffered by the plaintiff from each of the events;
(d)make findings in relation to how the injuries suffered in each of those events have affected the ability of the plaintiff to continue to seek gainful employment; and
(e)make findings in relation to the various other heads of damages which are sought in terms of quantum.
I should note at an early stage that there was a significant attack on the credit of the plaintiff, both in cross-examination and in final submissions. As with most cases, credit is rarely black and white. The evidentiary analysis process requires that the court examines the totality of the evidence, including objectively provable facts and reasonable inferences which can be drawn from those objective facts on the balance of probability. In the case of the plaintiff, it is important to bear in mind that he has suffered psychiatric injuries as a result of both accidents, has pre-existing psychiatric conditions associated with his childhood trauma, and has ASD.
As I recognised in the decision of Kemp v Gold Coast Hospital and Health Service [2024] QSC 259, the hallmark of cases similar to the present kind is that evidence given by a party with a psychiatric injury may well be affected by their condition. I, again, cite with approval the observations of the Victorian Court of Appeal[1] in Stevens v DP World Melbourne Ltd [2022] VSCA 285 as follows:
“Finally on the question of the credit of the plaintiff, we note that this was a case where, as his Honour said, there was a consensus of medical opinion that the plaintiff had suffered a mental injury that arose out of his employment. In such circumstances, it is not clear why his Honour did not consider the possibility that any exaggeration, or lack of reliability in the plaintiff’s evidence, might have been the product of the mental injury that arose in the course of the plaintiff’s employment. A hallmark of cases of the present kind is that the evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health. Allowances need to be made for such a possibility (albeit that, upon proper examination, such an allowance might be discounted in an individual case). Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness’s evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness’s evidence cannot be accepted on its own. At the very least the judge should have analysed the effect of the plaintiff’s mental injury (about which there was a consensus of medical opinion), upon the reliability of the plaintiff’s evidence, before concluding that he was a dishonest witness who fabricated critical parts of his evidence.”[2] (footnotes omitted)
[1]Per Beach, Macaulay JJA and Forrest AJA.
[2]Stevens v DP World Melbourne Ltd [2022] VSCA 285 at [44].
I will bear in mind these observations when considering issues of the credit in respect of the plaintiff.
Background facts prior to the two motor vehicle accidents
The plaintiff was born on 24 April 1974 and, accordingly, is 51 years of age.
It is uncontroversial that during the plaintiff’s childhood he had a number of traumatic experiences which I will refer to as his “Childhood Trauma”.
It is unnecessary to go further in describing the Childhood Trauma as the circumstances are adequately identified in the relevant psychiatric reports of Dr Lockwood and Dr Duke (being the psychiatric experts who were called in this case), and the notes of Dr Kerr, who has been the plaintiff’s treating psychologist for some time.[3]
[3]Examples of the descriptions of the plaintiff’s Childhood Trauma can be seen at Dr Lockwood’s report of 28 August 2020 at p. 25 of the trial bundle para [1], and p. 57 of the trial bundle, at Dr Duke’s report of 17 November 2020 at p. 98 of the trial bundle at para [4] and Dr Kerr’s report of 7 August 2020 at p. 1 of the trial bundle at para [3], items numbered 1 - 2.
Dr Lockwood was a psychiatrist called by the plaintiff. She proffered the opinion that since early in the plaintiff’s life, he has experienced chronic symptoms of mood problems, hyper-vigilance, avoidance, relationship difficulties and detachment, loss of trust, some intrusive re-experiencing symptoms, and a compensatory focus on achievement, independence and safety. Dr Lockwood noted that the plaintiff’s medical records identified that the plaintiff had been diagnosed with a pre-existing chronic ICD-11[4] diagnosis of Complex Post-Traumatic Stress Disorder, a diagnosis which incorporated, in her view, many developmental effects consequent on the plaintiff’s Childhood Trauma. Dr Lockwood identified that this diagnosis was consistent with a DSM-V[5] diagnosis of Chronic Post-Traumatic Stress Disorder, and throughout the plaintiff’s life, he had a number of chronic symptoms of this disorder, with variations in symptom severity and impact over time. Dr Lockwood recorded that the plaintiff had previously been diagnosed as having a Major Depressive Disorder by Dr Adem Can, a consultant psychiatrist who he started seeing in June 2015, and was then additionally diagnosed by Dr Can as having a General Anxiety Disorder in August 2016.
[4]International Classification of Diseases 11^th Revision – World Health Organisation.
[5]Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (OSM-5-TR), American Psychiatric Association.
I accept the opinion of Dr Lockwood in respect of the plaintiff’s pre-existing symptoms and the evidence that he had historically suffered from the other identified disorders.
At one time, the plaintiff had been mentored and counselled by a Mr John Guy. It is evident on the material that this had been beneficial to the plaintiff. In 2012, Mr Guy had referred the plaintiff to Dr Katelyn Kerr. Dr Kerr has been treating the plaintiff since 2012. Again, on the material it is evident that this has been beneficial to the plaintiff. A large portion of Dr Kerr’s notes were tendered in the proceeding.
During her treatment of the plaintiff, Dr Kerr formed the view from her interactions with and observations of the plaintiff over time that the plaintiff might potentially have Asperger’s Syndrome. In particular, Dr Kerr’s notes of a phone call with the plaintiff’s treating GP, Dr Boubaris, recorded that Dr Kerr raised a query of a potential diagnosis of Asperger’s Syndrome.[6]
[6]Dr Kerr’s notes used the term ‘Asperger’s Syndrome’. Ultimately, the terminology used by the specialist which the plaintiff was sent to, when describing the relevant condition, was ‘Autism Spectrum Disorder’. It is this descriptor which I will generally use in these reasons for the relevant condition.
In evidence-in-chief, Dr Kerr identified aspects which led her to this query during her treatment of the plaintiff. They included the following:
(a)the plaintiff’s black and white thinking;
(b)the plaintiff being rules driven and having cognitive rigidity; and
(c)the plaintiff having a lot of difficulties being flexible in his thinking at times.
Dr Kerr identified that she was not qualified to give a diagnosis in the area of Asperger’s Syndrome. In consequence of this, she decided that it was appropriate for somebody with more experience and expertise than herself in the specific area of Autism Spectrum Disorder (“ASD”) to see the plaintiff.
Ultimately, the plaintiff went to see a specialist in this area, being a Dr Zimmerman.
Dr Zimmerman gave short evidence at the trial, and at least some of his treating records were also put into evidence.
After Dr Zimmerman had seen the plaintiff, he participated in a telephone call with Dr Kerr. Dr Kerr’s recollection of the telephone conversation with Dr Zimmerman on 13 June 2018 was consistent with her file note of that conversation. Namely, that Dr Zimmerman said the plaintiff may meet ASD criteria, as well as traits of a personality disorder, but that was complicated by PTSD[7] and the Childhood Trauma history.
[7]PTSD is the acronym for post-traumatic stress disorder.
Dr Zimmerman, in his evidence-in-chief, was more emphatic in respect of his diagnosis. He said that he had confirmed the diagnosis of ASD for the plaintiff. I note that his records of the conversation with Dr Kerr are to the effect, “Confirm Dx of ASD…”. Dr Zimmerman had seen the plaintiff on three occasions prior to this telephone call.
In oral evidence, Dr Zimmerman went through and explained some of his notes which related to his diagnosis of ASD. That explanation included that the plaintiff had poor communication skills and had a poor theories of mind, otherwise known as perspective taking. Within the notes of Dr Zimmerman, there was a documented series of answers to questions which were used in aide of a diagnosis of ASD using the DSM-V[8] criteria. Dr Zimmerman identified that the plaintiff’s answers to those questions were consistent with a diagnosis of ASD.
[8]Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (OSM-5-TR), American Psychiatric Association.
Dr Zimmerman, in his cross-examination evidence, accepted that it was difficult to diagnose ASD in someone who suffers from PTSD. He accepted that in his notes from his third and last session with the plaintiff that he recorded:
“Impression is ASD. Explore Depression in next session. Complex PTSD history with Detached personality features likely associated with [Childhood Trauma] & ASD characteristics.”
I find that the plaintiff did have ASD prior to the first accident, albeit it was co-existent with a complex PTSD, as well as detached personality features.
In doing so, I accept the evidence of Dr Zimmerman, who is an expert in the field of ASD. His ultimate evidence was that he had actually made the diagnosis of ASD. Dr Zimmerman did not depart from his view of this diagnosis at trial.
Dr Zimmerman went on to accept under cross-examination that a mere diagnosis of ASD does not, in and of itself, mean that a person cannot pursue any particular career.
Dr Duke was a consultant psychiatrist called by the defendants. By reference to medical records from the Life Promotion Clinic pertaining to the plaintiff which were put into evidence, Dr Duke recorded a pre-existing diagnosis of PTSD and Major Depressive Disorder, both relating to the plaintiff’s Childhood Trauma. Dr Duke also proffered a diagnosis in terms of the DSM-IV[9] Axis I to the effect that the plaintiff suffered from a pre-existing PTSD, with an associated Major Depressive Disorder related to the Childhood Trauma.
[9]Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.
I accept the diagnosis of Dr Duke. It was broadly consistent with Dr Lockwood’s opinion.
These diagnoses and opinions were also consistent with the historical diagnosis recorded in the medical records of the plaintiff.
As will be seen later in these reasons, the plaintiff had a level of insight into his psychiatric difficulties and actively sought treatment from a variety of practitioners. This included Dr Kerr.
I will explore later in these reasons the effect the ASD, together with the associated pre-existing PTSD and Major Depressive Disorder, had on the plaintiff’s ability to perform functions within various work environments.
Before leaving this issue, it is relevant to note Dr Kerr explained that in relation to ASD that it is, in effect, a neurodiverse condition. She explained that a person is born this way, and it is not something that is going to develop over time. Dr Kerr explained that the relevance of obtaining the diagnosis was so that she could better understand the plaintiff’s thought processes in order to enable her to explain things in a different way to the plaintiff. However, from a clinical point of view, Dr Kerr explained that there is not actually a treatment, as such, for ASD. Dr Kerr explained that as a clinician, what she would target would be interventions only in areas that a person finds distressing for themselves. If a person did not find having ASD distressing to them in any way, there is nothing which she, as a practitioner, would try to do to intervene, for example, to teach them social skills. Dr Kerr re-emphasised that it is only if the person was distressed that she would seek to intervene in this way. I accept this evidence by Dr Kerr.
Education and employment history of the plaintiff prior to the two motor vehicle accidents

In the period prior to the two motor vehicle accidents the subject of this proceeding, the plaintiff was able to obtain gainful employment and undertake a variety of vocational and academic courses. This was so, despite his psychiatric conditions summarised above and his ASD.
The plaintiff had completed secondary school up to Year 10, at which stage he then attended the Dalby Agricultural College. On 13 December 1991, he received an advanced certificate in agricultural production achieved over a two year period.
In 1992, the plaintiff commenced a Bachelor of Business Management with a major in marketing at the Queensland University of Technology. He did not complete the degree, and the plaintiff reported to Dr Lockwood that he had been academically excluded after two years.
Commencing in 1993 and at various times up to at least February 2001, the plaintiff worked at a paper converting company. His job at this place of work between 1993 and 1997 had included wrapping rolls of recycled toilet paper and indexing them in terms of stock control and then physically storing them with a forklift into the warehouse consistent to the index. A reference from the state manager of that business spoke in a positive way as to the plaintiff having improved processes within the business and within the business of a related company.
There was tendered into evidence a record of the plaintiff having completed a franchise management course between September to December 1995 with the University of New South Wales. Another certificate issued 17 May 1996 from an organisation called “The Franchise Association of Australia and New Zealand Ltd” indicated that by that date, the plaintiff had achieved an attainment in franchise administration. The evidence did not allow for any understanding of what study was involved in this certificate.
On 20 July 1997, the plaintiff enlisted in the Australian Army Reserve.
Within the Army Reserve, the plaintiff was operating as a field engineer and later as a combat engineer. He remained in the Army Reserve for about three and a-half years. When asked in evidence-in-chief why he left, the plaintiff stated, “Ultimately, I got bored.”[10] The plaintiff identified that he had unsuccessfully applied to be an officer cadet. He attributed this unsuccessful application as being primarily due to his lack of education in not having finished Grade 12 at school and in not having a degree.
[10]T 1-87 l 8.
Whilst in the Army Reserve, the plaintiff continued to carry out gainful employment.
At some point, the plaintiff started a company for the training of high risk work licensing. The business originally concerned forklifts, and later expanded to include gantry cranes, and a range of other high risk work areas.
That company was initially called “Forklift Tickets and Training” and was later renamed, “Aalert Training”. The plaintiff identified that at its peak, Aalert Training employed 10 persons with about half of those persons based in the Philippines. The Philippines-based workers undertook sales, administration, marketing and training. They did so through remote work.
The plaintiff stated that Aalert Training had trained persons for a number of large organisations, which included Stratco, BHP and Blue Scope. Aalert Training operated from premises at a Crestmead address. This property seems to have been his mother’s property, at which her residence was also located.
The plaintiff gave evidence that he established at various times a number of other businesses. They were identified as follows:
(a)Granite Traders;
(b)Alert Coffee;
(c)a caravan rental business, which later became a caravan buy and sell business; and
(d)Safe and Sound Building Society.
I will deal with each of these in turn.
(a) Granite Traders
In relation to Granite Traders, the plaintiff gave evidence that in perhaps 2000 he was a 50 per cent shareholder of the company, with a family friend from Zimbabwe holding the other 50 per cent. The company’s business was said to involve the importation of granite from Zimbabwe to Australia. No financial records for the business were provided. The highest the evidence rose was that the plaintiff said there was an actual turnover of $1.5 million, or the business had a credible projection of a turnover of $1.5 million, such that the Australian Government let the family friend immigrate from Zimbabwe. The plaintiff indicated that after the family friend immigrated, he sold his shares to the family friend. The value of that sale was not identified, and the profitability or otherwise of the company was not established.
(b) Alert Coffee
In relation to Alert Coffee, the plaintiff indicated that when transporting the granite, coffee was also transported with the granite. It is not clear how this business was constituted.
Again, no financial records for the Alert Coffee business were provided. The plaintiff, at some stage, decided not to continue the coffee business because he said there were other projects which were a more economical use of his time. The profitability or otherwise of this business was not established.
(c) Caravan rental business and caravan buy and sell business
In relation to the caravan rental business and the caravan buy and sell business, the plaintiff gave evidence that, at some unknown time, he bought 13 caravans and rented them out for a total rental income of approximately $1,000 per week. He identified that he operated this business with a neighbour at Loganholme. The plaintiff identified in relation to the selling portion of the caravan business that at one stage he formed the view that he may be able to make more money by buying and selling caravans, instead of renting them. The buying and the selling of caravans portion of the business was said to have been solely carried out by the plaintiff.
Again, no financial records for these businesses were provided. The profitability or otherwise of these businesses was not established.
The plaintiff gave evidence that he ceased this business because he had a better economic opportunity.
(d) Safe and Sound Building Society
In relation to the Safe and Sound Building Society, the plaintiff gave evidence that he first started thinking about a business which could raise capital cheaply, in about 2001, when he was working at the paper recycling business.
The plaintiff identified that sometime later when the Aalert Training business was in operation, a Mr Waters was an employee within that business. Mr Waters had been an officer in the Australian Airforce and, whilst in that role, had been involved in setting up a building society for air force personnel.
Mr Waters was identified by the plaintiff to now be deceased.
The plaintiff’s evidence was that with the assistance of Mr Waters and a Mr Clive Kay, he was able to establish a business that he described as a corporate building society.
The plaintiff gave evidence that an application to start the building society had been lodged in or about April 2008. This application was identified as having been lodged in New Zealand and not Australia.
The plaintiff gave further evidence as to how the building society business was conceived. The plaintiff gave evidence that between 2001 and 2008 he had done a lot of research. He said that he had systematically tabulated the global requirements for bank licences, with a focus on English-speaking jurisdictions. The plaintiff said that he (and the other two men) had the money, had no criminal history and had the know-how. When asked about what he meant by ‘know-how’ within this group of people, the plaintiff identified that Mr Kay had a Masters of International Finance and that the plaintiff had an uncle in New Zealand who had extensive commercial experience. The plaintiff had previously identified that Mr Waters had the experience of being involved in the establishing of a building society for the air force.
The plaintiff said the reason New Zealand was attractive as the location for the business was because it only had a $200,000 capital requirement at the time for such a business, as opposed to a $20 million capital requirement which was said to exist in Australia.
The plaintiff gave evidence that he and Mr Kay were involved in the operation of the Safe and Sound Building Society, which was set up via a corporation. However, the plaintiff then gave evidence that he never personally moved to New Zealand and that the operation of that business occurred whilst he was still running the Aalert Training business. The plaintiff said that whilst he received a director’s salary from Aalert Training, he did not receive any wage from the Safe and Sound Building Society.
The plaintiff gave evidence that the focus of this business was on what he said the New Zealand legislation called ‘non-public’ investors. The plaintiff said that this was similar to the concept of sophisticated investors or wholesale investors. The plaintiff described that his goal was to build an integrated business where he could provide a high value service to high net wealth individuals.
I pause at this point to note that no financial records for the Safe and Sound Building Society were put into evidence. In addition, what was being described by the plaintiff is not something which would in any true sense resemble a building society as that concept is understood in Australia. The descriptions given by the plaintiff more readily resemble what in Australia is understood to be a managed investment fund, where funds are raised from sophisticated or wholesale investors.
The evidence given by the plaintiff about this business was only at a high level, he gave no real evidence as to what, if anything, he actually did in respect of the operation of the Safe and Sound Building Society. I am not able to make any finding as to what the plaintiff did in terms of the operation of the business, and whether that demonstrated some significant contribution to its operation, as opposed to it being some nominal involvement.
Further, the evidence did not go into an explanation as to what funds had been necessary to establish and then run the business, and what portion of those funds had come from the plaintiff.
The plaintiff gave evidence that he had held 100 per cent of the shareholding in the company, and that he sold the vast majority of those shares for $500,000 in June 2016. He explained that there had been a change in market forces and regulation, and that his fellow directors at that time wanted to stay focused on the sophisticated investor market, whereas the plaintiff said that he wanted to comply with regulations and have a broader market, which included retail investors. The plaintiff identified that the bulk of the $500,000 was paid to the Aalert Training Trust, via its trustee Aalert Training Pty Ltd.
I accept that the plaintiff did receive $500,000 for his interest in the business by way of the sale of the shares, but I cannot make any finding as to the net return from the business as no evidence was received in relation to exactly what the plaintiff may have contributed (either directly or indirectly) in terms of capital, other set up contributions and ongoing running costs.
Further academic and vocational activities up to the first motor vehicle accident - 10 January 2017
I turn then to the evidence of further academic and vocational activities.
A March 2004 Statement of Attendance for Website Development was tendered. That certificate referred to a 12 hour course.
A 10 June 2005 certificate described as “Developer of Enterprise” from an organisation known as “achaeus” was tendered. This certificate did not identify how long the course was for.
A 20 March 2009 commercial property agent’s licence was tendered.
A 21 July 2010 Graduate Certificate in Business from the University of Southern Queensland was tendered. The certificate did not identify how long the course was for.
A 19 July 2012 Certificate IV in Training and Assessment was tendered. The evidence was not clear as to exactly who issued the certificate and how much training was involved in it.
By August 2015, the Aalert Training Assessment business was closed down.
From 30 November 2015 to 12 February 2016, the plaintiff was a summer intern with Macquarie Bank Limited in its Wealth Management Division, but was not offered a position after his internship finished.
On 26 August 2016, the plaintiff obtained a Bachelor of Laws from the University of Southern Queensland. No transcript of the plaintiff’s results in this bachelor degree was tendered into evidence.
On 10 November 2016, the plaintiff obtained a Graduate Diploma of Legal Practice from the College of Law.
By December 2016, the plaintiff had applied to be admitted to practise as a solicitor. On or about 12 December 2016, the Legal Practitioners Admissions Board (“LPAB”) had reported that the plaintiff’s application would be held up due to the need to investigate complaints which had been made by third parties against the plaintiff.[11]
[11]Exhibit 33 at p. 529.
The first motor vehicle accident - 10 January 2017
As identified previously, there is no dispute about liability arising from the first motor vehicle accident. Nor is there any dispute amongst the plaintiff’s and defendants’ expert psychiatrists that a level of psychiatric injury was suffered as a result of the first accident.
The details of what occurred at the first accident are relevant solely as general background explaining why the psychiatric injury was suffered, and also due to there being a credit attack against the plaintiff in relation to aspects of his version of the accident and its immediate consequences.
In short, at about 12.25 pm on 10 January 2017, when driving in a southerly direction on the Gateway Motorway at Stretton, the plaintiff came across a man (a Mr Holland) lying on the road surface near a Kenworth prime mover.
Mr Holland had been in charge of the prime mover, and had pulled over to the left-hand side of the Gateway Motorway at Stretton and alighted from the vehicle. At a point in time after Mr Holland had alighted from the prime mover, the first defendant struck Mr Holland, causing injuries from which Mr Holland ultimately passed away from.
Having come across the scene, the plaintiff stopped his vehicle to investigate. His initial action was to go to Mr Holland to seek to render aid. The plaintiff’s evidence was that, at that time at least, he thought Mr Holland was still alive.
The plaintiff’s evidence was that, having surveilled the scene, he was concerned about the prime mover losing its load onto the Gateway Motorway, and this caused him to be concerned about the potential for further accidents to occur. He said he made the decision to move away from Mr Holland in order to seek to secure as best he could the prime mover’s load.
The plaintiff identified that at some stage another motorist stopped. That motorist was a nurse. After the nurse had examined Mr Holland in some way, she identified to the plaintiff that Mr Holland was not alive.
A recording of a Triple-0 call made by the plaintiff was tendered. In the Triple-0 call, there was a reference by the plaintiff to Mr Holland having passed away.
The plaintiff gave evidence that after this accident he felt real guilt in relation to his conduct in not having tried to save the life of Mr Holland and making the decision to seek to secure the load of the prime mover instead. The plaintiff also gave evidence of wanting to contact Mr Holland’s family to let them know about what had happened, and to provide an explanation. The plaintiff gave evidence that he did not want to go through the police because he held feelings that the police might charge him in relation to the death of Mr Holland in some way.
A credit attack was made on the plaintiff in respect of his evidence on this subject matter in a variety of ways.
First, the defendants[12] described the plaintiff’s account of the event as “florid”[13]. I took this as a submission that the plaintiff was overdramatising the events.
[12]I use the term ‘defendants’ for convenience, but only the third defendant actively participated in the trial.
[13]Revised outline of the third defendant’s submissions p. 15 at [68].
Secondly, it was said that contrary to the plaintiff’s evidence, the Triple-0 call showed that the plaintiff realised at a very early stage that Mr Holland had, in fact, passed away.
Thirdly, it was said that the plaintiff’s evidence of his reaction and feelings that he might be charged by police with a very serious criminal offence was irrational,[14] particularly coming from somebody who had obtained a law degree. It was submitted by the defendants that the plaintiff’s evidence of feeling responsible for the death of the victim was inconsistent with the transcript of the Triple-0 call. It was submitted that the plaintiff’s evidence of thinking that he might be charged with a serious criminal offence was just not credible.
[14]T4-118 l 31.
Fourthly, it was then said that it was not credible that the plaintiff would not speak about his feelings of the risk of being charged to his psychologist whom he had developed a good rapport with, and whom he had known for the best part of five years.
I reject this attack on the credit of the plaintiff. I explain my reasons as follows.
First, the Triple-0 call was not inconsistent with the plaintiff’s version of events. In the Triple-0 call, the plaintiff had specifically referred to the nurse being present. The plaintiff could not have told the police that the nurse was present unless he had spoken to her before making the Triple-0 call. Accordingly, it is entirely consistent with the plaintiff’s version that by the time he made the Triple-0 call, the nurse had already told him that Mr Holland had likely always been deceased, thereby disabusing him of his initial belief.
Secondly, whilst I accept that the plaintiff:
(a)was animated in giving his evidence about this accident;
(b)showed emotion in doing so; and
(c)was somewhat dramatic in doing so,
I did not form the view that this was a confected performance.
The plaintiff was being asked to recall events, which on the psychiatric evidence of both sides had been traumatic to him, and had contributed to his current psychiatric state. There was nothing obviously inappropriate in the way that the plaintiff gave his evidence on this issue. I do not use the descriptor ‘dramatic’ in a pejorative sense. It appeared to me that the first accident was obviously a subject which still caused him upset when he was asked to recall it. Whilst the plaintiff was not physically injured by the accident, there is other supporting contemporaneous evidence which supports his evidence of feelings of guilt about what else he could have done for Mr Holland.
Thirdly, whilst I accept that the holding of a concern by someone in the plaintiff’s position as an attendee at the accident scene that he or she might somehow be exposed to a risk of being charged with a serious criminal offence would objectively be seen to be an irrational view to hold, that objective position must be weighed against the competing evidence that such a view was, in fact, held. Here, that competing evidence includes contemporaneous records which support that the plaintiff, in fact, held such a view. Those matters can be summarised as follows.
In relation to the particular circumstances of the plaintiff, I note the following. The plaintiff identifies as a First Nations person. He gave evidence, which I accept, that within his early family environment he held a strong distrust of policing authorities. Within the plaintiff’s medical records of his sessions with Dr Kerr, there are a number of corroborating references to his distrust of the police. No doubt this feeling of distrust has been exacerbated by his diagnosed ASD, which includes symptomology of rigidity in beliefs and fixed thought processes.

Next, there is a file note of Dr Kerr of 14 February 2017 which records, amongst other things, that the plaintiff wanted Dr Kerr to help work out a way that the plaintiff could get a letter to the motor vehicle accident victim’s family without having to contact the Queensland Police Service. That file note is consistent with the plaintiff’s evidence that he had the feelings which he identified as a mistrust of the Queensland Police Service and he had at least the commencement of thoughts that he might be charged with a serious criminal offence.
Dr Kerr, in her evidence-in-chief, gave direct evidence which was consistent with the plaintiff’s evidence. This included the following:[15]
“Did he tell you why he didn’t want to talk to the police service?---Yes. And I think I’ve understood that from previous times we talked about the Queensland police as well. And there was a sense of distrust about the police, given their role in a position of power. Also because of his indigenous heritage, there was a feeling of being persecuted by the police and unfairly pulled over in traffic stops before – and just a very high sense of distrust. And so he wanted to make sure that [Mr Holland’s] family knew that he was cared for to the best of his ability but without having to ask the police for those details because he was so fearful of them.”
[15]T4-57 ll 5-12.
Finally, an email of 10 January 2017 written by the plaintiff to Dr Kerr only a couple of hours after the first accident contained a draft letter he was thinking of sending to the deceased’s family. The message in the covering email to Dr Kerr was, “Good letter, bad letter?” It corroborates that the plaintiff was seeking to provide some form of comfort to Mr Holland’s family and an explanation of what happened.
Ultimately, I accept the plaintiff’s evidence of what occurred at the first accident site and his having a feeling of some distrust of the police about the event and some feeling about wanting to comfort Mr Holland’s family. I qualify my findings on this issue by observing that I am not satisfied that the concern of being charged by the Queensland Police Service and of personal guilt was strongly dominating the plaintiff’s thoughts at this time. As will be touched on later, there was a period in 2017 after the first motor vehicle accident where there were indications that the accident was affecting the plaintiff psychologically, but those effects had largely resolved in terms of external manifestations of symptoms before the end of 2017. The absence of ongoing reference to the first accident in Dr Kerr’s notes supports that any feelings of guilt and concerns with the police had materially receded in terms of symptomology. However, after the second motor vehicle accident, there is no doubt that this second event triggered, in an evident way, feelings of guilt, and concerns about being charged, in relation to the first accident. Dr Kerr’s contemporaneous notes after the second motor vehicle accident corroborate these feelings having been experienced at that time as a matter of fact.
In rejecting the general credit attack, it is necessary to be nuanced as to the effects the two accidents had on the plaintiff over time.
I pause here to note that there was a separate but somewhat related attack on the plaintiff’s credit which ought to be dealt with at this point. The submission was made that:[16]
“It is not possible to resist the conclusion that the Plaintiff (who had a law degree and was sufficiently able to have enlightened himself as to the decision in Caffrey v AAI Limited [2019] QSC 7) was behind the making of what it is submitted are quite untenable claims (as to which see below).” (footnotes omitted)
[16]Revised outline of the third defendant’s submissions at [12].
The footnote to that submission referred to the transcript at 3-49 l 20 and the decision of Caffrey.[17] The decision in Caffrey concerned psychiatric harm suffered by a police officer who was in the position of a “rescuer” at an accident. The submission seems to be that this psychiatric injury was only complained of at a date well after the accident due to the plaintiff being aware of the case. Implicit to that submission is that the injury may be exaggerated, or possibly invented.
[17]Caffrey v AAI Limited [2019] QSC 7.
I do not accept this related attack on the credit on the plaintiff. It is quite possible that he did become aware of Caffrey at some stage, either by himself or through his legal representatives. However, whether that did or did not occur is irrelevant. Liability in this case is not in issue and the defendants’ own psychiatric expert witness accepts that there was a level of psychiatric injury suffered by the plaintiff as a result of the first accident. Further, I understood the reference to “quite untenable claims” to include the attack on the plaintiff’s credit which I have dealt with above (which related to his fear of criminal prosecution). As I have broadly rejected that other attack on the plaintiff’s credit, the underlying claims cannot be accurately described as untenable.
This attack on the plaintiff’s credit should also be rejected.
Employment and academic pursuits of the plaintiff after the first motor vehicle accident to the second motor vehicle accident - 28 August 2019
On 28 February 2017, the plaintiff obtained a certificate for a Diploma of Financial Planning from an entity called the “Monarch Institute.” The certificate did not identify how long the course was for.
On 28 March 2017, the plaintiff obtained a certificate for a Diploma of Finance and Mortgage Broking Management from an entity called AAMC Training Group. The certificate did not identify how long the course was for.
In 2017, the plaintiff continued to study accounting subjects at the University of Southern Queensland.
In October 2017, the plaintiff obtained a PMC Statement which certified he had completed the College of Law’s Legal Practice Management Course. The plaintiff identified two reasons for undertaking that course; firstly, because he wanted to establish his own law firm, and secondly, he thought knowing what the director of a legal practice would be concerned about would make him a more “coachable”[18] junior solicitor.
[18]T2-26 l 12.
In November 2017, the plaintiff stood in a political election for the seat of Logan, running as an independent. The evidence supports that on prior occasions he had sought pre-selection for the Liberal Party and for the Labor Party.
By 12 December 2017, the LPAB had informed the plaintiff that they were going to oppose his admission as a legal practitioner in the Supreme Court.
On 27 April 2018, the plaintiff obtained a Bachelor of Commerce from the University of Southern Queensland. No transcript of the plaintiff’s results for this bachelor degree was tendered in evidence.
The plaintiff gave evidence that he had worked for a company called “Australian National Legal Service” under the supervision of a Mr Alex Tees at some time. No real detail of this work emerged, and it may have been before his admission as a solicitor. It is certainly before 1 August 2018. The plaintiff could not say how long this work had been for.
In the first half of 2018, the LPAB dropped its objection to the plaintiff being admitted as a solicitor. The plaintiff was then admitted as a solicitor in the Supreme Court on 6 June 2018.
The notes of Dr Kerr of 4 July 2018 recorded the plaintiff having difficulties finding a job at that time.
On 1 August 2018, notes of Dr Kerr recorded the plaintiff and his supervisor, a Mr Bill Cusack, were intending to start a company together.
Somewhere between 1 August 2018 and 1 November 2018, the plaintiff started operating a legal practice known as ‘Cusack and Associates’ via a corporate entity of which the plaintiff was the sole shareholder. At the time, the plaintiff had Mr Cusack as his supervisor. A supervisor was necessary for the corporate firm to legally operate. It was Mr Cusack who held the principal’s practising certificate which was required for the corporation to legally operate as a legal practice. The plaintiff only ever held a restricted practising certificate.
The plaintiff’s evidence in relation to the operation of Cusack and Associates was, with respect, less than satisfactory. Whilst the plaintiff may have been excused for not recollecting specific dates, the plaintiff’s evidence of what Mr Cusack actually did in the firm was vague. Ultimately, the most the plaintiff could really say with surety was that Mr Cusack was his supervisor. Under cross-examination when it was suggested that Mr Cusack was hardly ever physically present at the practice’s office, the plaintiff stated:
“Well, that’s irrelevant, isn’t it?
So - - -?---Supervision doesn’t have to be face to face.”[19]
[19]T3-79 ll 4-7.
The plaintiff accepted that Cusack and Associates had no support staff at its office.
No clear evidence was led to identify what, if anything, Cusack and Associates earned prior to 1 November 2018. A financial document was tendered that contained a financial summary for the 2018/2019 financial year for Cusack and Associates Pty Ltd. It records a total of gross sales of goods and services as $1,120 for the taxation period, with a net income of $1,008 for the same period. Whatever may have been earned in fees between 1 August 2018 and 1 November 2018, it was likely to have been a nominal amount.
On 1 November 2018, the plaintiff commenced employment at Lillas & Loel Lawyers (“Lillas & Loel”) as a solicitor.
On 22 February 2019, the plaintiff walked out of the Lillas & Loel offices following a human resources review meeting. Lillas & Loel then suspended the plaintiff’s employment until 4 March 2019. The plaintiff was asked to attend a review meeting on 4 March 2019 upon his return to work. The plaintiff declined to attend this review meeting.
On 6 March 2019, the plaintiff was advised that his employment had been terminated as of 5 March 2019.
At some stage after the termination of his employment with Lillas & Loel, the plaintiff recommenced the operation of Cusack and Associates through the same corporate entity as before. Mr Cusack at that particular time seems to have been no longer involved in supervision, rather a Ms Adrienne Soo now filled that role. The plaintiff still only held a restricted practising certificate.
It may be that Mr Cusack remained a director of the company, but at that particular time it was Ms Soo who supplied the principal’s practising certificate required for the corporate entity to carry out a legal practice. For the financial year ending 30 June 2021, one financial record shows Mr Cusack being paid just over $8,000. It may be that Mr Cusack returned in a later year to some supervisory role. The evidence was unclear on this fact, but the payment supports such an inference.
The plaintiff did not have any recollection of there being other persons in the firm doing clerical work at any point.
The second motor vehicle accident - 28 August 2019
The second motor vehicle accident occurred on 28 August 2019.
The plaintiff was travelling in the left-hand lane of the freeway heading towards the Gold Coast. Just south of Upper Mount Gravatt, the plaintiff attempted to leave the freeway. The plaintiff was indicating for the exit but had not yet reached the dotted line for the turn. The plaintiff’s motor vehicle was hit from behind by the second defendant’s vehicle. The plaintiff said that his first sensation as a result of the collision was of flying. He said that he recalled his neck hurt and he called an ambulance. The plaintiff’s evidence was that his car was written off. The plaintiff recalled smelling fuel at the scene of the accident. The plaintiff was not taken away in an ambulance.
The plaintiff gave evidence that he started to feel pain in other parts of his body maybe a day or so later.
The plaintiff said that he felt pain in his right shoulder, the left-hand side of his neck, the left-hand side of his jaw and left shoulder, down the left-hand side of his spine, his left-hand side hip, his left thigh and his left lower leg.
Liability for this accident is not in dispute. I accept the plaintiff’s evidence set out in paragraph [131] above.
It is uncontroversial on the psychiatric evidence that this accident caused further psychiatric injury to the plaintiff, or exacerbation to the plaintiff’s existing psychiatric conditions. It is also uncontroversial that this accident caused some physical injuries to the plaintiff. An issue to be resolved is the extent of the injuries, and how those injuries affected the plaintiff’s entitlement to loss and damage. I will make findings in respect of what injuries were suffered later in these reasons. These findings include that this second accident did not cause the plaintiff’s subsequent injuries to his right shoulder and hips.
Employment of and study by the plaintiff after the second motor vehicle accident
After the second motor vehicle accident on 28 August 2019 until sometime in the latter of the first half of 2021, the plaintiff continued to carry on the operation of Cusack and Associates. The plaintiff remained the sole earning solicitor and there is no suggestion that he employed any support staff during this period.
Ms Soo remained as supervisor and held the principal’s practising certificate. The evidence does not establish that Ms Soo was practising as a solicitor in a fee earning capacity within the practice. Exactly what supervision Ms Soo actually provided is uncertain on the evidence which was led.
During the identified period referred to above, the evidence does not allow for a clear finding of exactly how much the plaintiff worked as a practising solicitor. The plaintiff’s evidence was that he sought to work every day, but after the second accident, he spent a lot of time being tired, angry and confused. He also stated that after the second accident, his ability to make an effort had declined. This evidence was consistent with the view of the plaintiff’s expert psychiatrist that after the second accident, the plaintiff had decompensated.
During this period, the plaintiff had two complaints of unsatisfactory professional conduct or, alternatively, professional misconduct, made against him. The complaints had been made by two other solicitors. The allegations were broadly as follows:
·     that on 29 January 2020, it was alleged that the plaintiff had failed to be honest and courteous in his correspondence with a solicitor, being a Mr Gill, by inferring that Mr Gill’s client was a murderer;
·     on 6 March 2020 and 30 March 2020, it was alleged that the plaintiff had sent Mr Gill copies of newspaper articles about a solicitor who had been found guilty of extortion, which by inference was suggestive that Mr Gill had engaged in some sort of misconduct;
·     on 1 August 2020, it was alleged that the plaintiff had directly contacted the client of another solicitor, a Mr Evans, without consent, and with the knowledge that the client was legally represented by Mr Evans;
·     on 17 and 20 August 2020, it was alleged that the plaintiff had sent correspondence that displayed a lack of professional courtesy to Mr Evans, who was at that time a practising solicitor.
In a letter of 20 June 2022, the Legal Services Commission, which had undertaken an investigation, communicated its decision, in part, to the following effect:
“…I am satisfied that there is a reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct by a disciplinary body, but it is in the public interest to dismiss the complaints. Accordingly, pursuant to s 448(b) of the Act, I have decided to dismiss both complaints.”
In relation to these complaints, the plaintiff said that he undertook certain remedial steps. In this respect, he said he went back to school and undertook Grade 11 and 12 English, he reviewed the relevant Rules, and he apologised to the complainants.
The plaintiff gave evidence that during this period he could see that he was going downhill faster, both in terms of his mental state and his physical state having reduced capacity. The plaintiff said that his judgment was off, as he thought his communications had been gentile and collegial, but that the Legal Services Commissioner thought he had been inappropriate. The plaintiff said that obviously when he had engaged in the conduct he thought it was appropriate, and this represented his lack of judgment. The plaintiff’s evidence was that he thought he could not make good decisions anymore.
Finally, the plaintiff said that the nail in the coffin in terms of him practising as a solicitor was Dr Lockwood’s report. The plaintiff sent that report to another solicitor and he received advice back that he would have to disclose the full report to the relevant professional authority in charge of the renewal of practising certificates. The advice of the other solicitor was that on disclosing the report there was zero chance of him being issued a practising certificate. That report included the opinion that the plaintiff was not then fit for practice from a psychiatric perspective.
The advice to the plaintiff included that if he did not disclose the report to the professional authority and he then obtained a practising certificate, then that would be considered fraudulent. The plaintiff’s evidence was that as a result, he withdrew his application to renew his practising certificate, as this was the correct thing to do.
There is no suggestion that the plaintiff has been gainfully employed as a solicitor or otherwise after 30 June 2021.
Second motor vehicle accident - physical injuries
(a) Introduction
There were a number of alleged physical injuries the plaintiff claimed to have incurred as a result of the second accident. It is necessary to deal with these as a series of discrete points, as I have determined that some were causally related to the second accident, whilst others were not.
The principal witnesses in this area were Dr Shaw, an orthopaedic surgeon called by the plaintiff, and Dr Johnstone, an orthopaedic surgeon called by the defendants.
(b) The orthopaedic evidence
Dr Shaw, in his 14 March 2021 report, recorded that in relation to the cervical spine there was a musculoligamentous cervical spine injury with asymmetrical restriction of movement and muscle guarding on lateral flexion, which was consistent with DRE Cervical Category II, providing for five per cent whole person impairment.
Dr Shaw had earlier noted in his report that the plaintiff had a prior injury in the form of intermittent recurrent neck pain as a result of a motor vehicle accident in 2013.
Dr Shaw recommended allocating one per cent whole person impairment due to the pre-existing neck pain caused by the accident in 2013, thereby leaving a four per cent whole person impairment causally attributed to the second motor vehicle accident on 28 August 2019.
Dr Johnstone, in his report of 11 March 2021, observed, in part, that the plaintiff had walked with a normal gait at his examination and stood with an upright posture. He observed there was no obvious muscle wasting or spasm or malalignment to the cervical spine. In relation to cervical spine motion, he observed it appeared to be slightly asymmetric with pain. He noted there was 40 degrees of flexion and extension, 30 degrees of right lateral flexion and 25 degrees of left lateral flexion and 60 degrees of left and right cervical rotation. The plaintiff complained of tenderness all over his left paraspinal muscles and a gentle palpation causing a tingling sensation to the fingers on his left hand.
Dr Johnstone made comments on a 30 August 2019 X-ray of the cervical spine, noting:
(a)no fractures being evident;
(b)the vertebral body alignment being normal; and
(c)no spondylolisthesis.
Dr Johnstone noted that there were endplate osteophyte formations at the anterior aspect of C5/6, otherwise the disc spaces, facet joints and neural foramina were unremarkable and within normal limits.

Dr Johnstone concluded that as a result of the second accident, the plaintiff appeared to have suffered, amongst other things, a soft tissue injury to the cervical spine.
Dr Johnstone’s assessment was that the plaintiff was suffering from a partial impairment to the spine and, currently based on his asymmetrical cervical spine motion, this would place him in Cervical Spine DRE Category II with a five per cent impairment. He said there was no additional percentage impairment for the effect on daily living activities, as he deemed that to be mainly psychological.
There was much cross-examination of Dr Shaw in relation to medical records which had periodically, over the years preceding the second motor vehicle accident, referred to the plaintiff suffering from neck pain and left shoulder pain, with one physiotherapist entry referring to there being chronic neck pain. Whilst Dr Shaw was initially taken aback when taken to the number of entries recording these events, they ultimately did not alter his opinion. He maintained his view that the five per cent assessment was appropriate, with one per cent of that assessment representing the past cervical spine impairment.
I accept the assessment of Dr Shaw in this respect.
I do so because Dr Johnstone ultimately accepted the same assessment.
The starting point for Dr Johnstone was that he identified in cross-examination that he had not allowed in his report any particular assessment of impairment arising from the pre-existing condition which the plaintiff suffered from.
Dr Johnstone had been involved in the production of a conference note dated 16 May 2023, which went into evidence. At paragraph [5(a)] of that note, there was a list of some nine summarised entries of what he was asked to assume constituted complaints made by the plaintiff to his general practitioner between 5 February 2015 and

25 March 2019, together with, at paragraph [5(b)], a summary of what he was asked to assume were complaints made to the plaintiff’s physiotherapist on 15 May 2019 and 1 August 2019. I am satisfied that the substance of each of those entries were contained in medical records tendered in the proceeding. In the file note, Dr Johnstone then stated:
“[6]In those circumstances, it is not possible to say that the measured impairment, based on range of movement in the Plaintiff’s cervical spine when I examined him at approximately 18 months post-accident was actually caused by the accident. The Plaintiff had significant pre-existing neck and shoulder problems which had troubled him over a number of years. In those circumstances, it is possible the motor vehicle accident produced some ongoing increased symptomatology for a short period of time, but that the Plaintiff’s longstanding ongoing problems are related to a degenerative ageing process rather than the motor vehicle accident.
[7]Historically, it is difficult to say as to whether the Plaintiff had an impairment of the cervical spine prior to the 2019 motor vehicle accident however on the history I am asked to assume, it is probable that he had a similar level of impairment to that which I assessed.”
In cross-examination, Dr Johnstone accepted that none of the entries that he was asked to assume had any details of any accurate measurement of the plaintiff’s movement in relation to the then pain being referred to in the entries. Dr Johnstone identified that GPs and physiotherapists in their ordinary work would not necessarily make measurements in order to provide a base on which to assess impairment.
In cross-examination, the following exchange occurred:[20]
“And, Dr Johnstone, it would be right, then, that you could not disagree with the percentage impairment that Dr Shaw found, which was a five per cent impairment of the cervical category 2 and his recommendation, Doctor, that one per cent of that impairment be allocated to the pre-existing neck pain, which he obviously had identified in his report, leaving a resulting impairment from the accident on the 28th of August 2019 of a four per cent impairment; you couldn’t disagree with that, could you?---No, I won’t – that – that’s – that is a lesser impairment than what I have given in my report and I have no objection to that level of impairment, no.”
[20]T3-113 ll 10-18.
This concession was made by Dr Johnstone, despite the content of his file note.
Even though there was no base recorded range of movement accurately done prior to the second motor vehicle accident, I find that the assessment of an overall five per cent impairment of the whole person with a reduction of one per cent for the pre-existing condition is appropriate. There is no doubt that there was a pre-existing condition and that over the years there were periodic flare ups of that condition with resolutions, however based upon the expert evidence, I find that the second accident caused a four per cent impairment to the whole person.
(c) Right shoulder injury
The next issue is whether the injury to the plaintiff’s right shoulder was caused by the second accident.
There is no dispute that the plaintiff has an injury in the form of a frozen right shoulder.
Dr Shaw, in his 14 March 2021 report, recorded being informed on that date that the plaintiff’s right shoulder continued to cause pain and there was a significant restriction of movement. Dr Shaw was told that the plaintiff avoided reaching overhead with his right arm and was limited reaching behind his back. The plaintiff told Dr Shaw it was sore to lie on his right side, and that he was unable to mow and garden due to this pain. The plaintiff recorded lowering the clothesline to be able to hang clothes out. The report recorded the gross restriction on right shoulder movement observed in the examination, including the following:
(a)Flexion - 100 degrees;
(b)Extension - 30 degrees;
(c)Abduction - 90 degrees;
(d)Adduction - 20 degrees;
(e)Internal rotation - 20 degrees; and
(f)External rotation - 40 degrees.
In contrast, the left shoulder had an identified full range of movement.
Dr Shaw identified a permanent impairment in respect of the right shoulder as being an upper extremity impairment for restriction of the right shoulder at 16 per cent, which subsequently converted to a 10 per cent whole person impairment.
Dr Johnstone, in his report of 11 March 2021, recorded that the plaintiff’s right shoulder remained with less pain than the left, but marked restriction of motion. He recorded that the left shoulder was considered to have a normal range of movement, but also identified restrictions from his examination of the patient as follows in relation to the right shoulder:
(a)Flexion - 80 degrees;
(b)Extension - 20 degrees;
(c)Abduction - 70 degrees;
(d)Adduction - 10 degrees;
(e)Internal rotation - 20 degrees; and
(f)External rotation - 10 degrees.
In terms of his clinical findings concerning the nature and extent of the claimant’s injuries, Dr Johnstone identified that the plaintiff suffered a soft tissue injury to his spine. No mention was made of the frozen right shoulder. When it came to Dr Johnstone’s assessment of the whole person impairment, no part of his assessment included an impairment for the frozen right shoulder.
In the 16 May 2023 conference note previously referred to, Dr Johnstone confirmed that he had not allowed for any permanent impairment assessment in relation to the frozen shoulder. He stated that he adopted this course because, in his view, the right shoulder condition was not causally related to the motor vehicle accident.
Dr Johnstone then explained in his 16 May 2023 conference note that position for the following reasons:
“[3]My opinion as to the lack of a causal relationship between the accident and the Plaintiff’s right shoulder condition is because:
(a) It is rare to see a frozen shoulder suffered as a result of a motor vehicle accident.
(b)If a right frozen shoulder was suffered in the 2019 accident, it is difficult to see as to how the left shoulder did not suffer the same condition in the same accident.
(c)The first recorded complaint of right shoulder symptoms was on or around 20 April 2020)[sic] (eight months post the August 2019 accident);
(d)A frozen shoulder is a painful condition and it is likely that the Plaintiff would have consulted medial [sic] advisors and complained about it had such a condition been present;
(e)As such the earliest point in time at which it could be said that the Plaintiff developed the right shoulder condition was eight months after the accident;
(f)Frozen shoulder usually develops without any identifiable cause and that is what occurred here;
(g)There is accordingly no medical basis to link the condition of the Plaintiff’s shoulder to the accident.”
Dr Johnstone further identified[21] that, absent any right shoulder injury, the plaintiff would have retained a capacity to undertake any of the following daily activities:
(a)groceries;
(b)cooking meals;
(c)snacks and drink preparation;
(d)mowing and whipper-snippering, ironing and vacuuming; and
(e)mopping, bathroom cleaning.
[21]Dr Johnstone’s conference note of 16 May 2023 at [4].
Dr Johnstone was cross-examined in relation to his explanation as to why the frozen shoulder was not causally related to the accident. In relation to paragraph [3(a)] set out above, to the effect that it was rare to see a frozen shoulder suffered as a result of a motor vehicle accident, Dr Johnstone accepted that it was possible but not probable to see a frozen shoulder caused by such an accident.
In relation to the matter raised in paragraph [3(b)] set out above, Dr Johnstone provided a further explanation that the plaintiff had been presenting with left shoulder pain at the time of the second accident. He said the right shoulder was not mentioned in the medical records, and it should have been if the plaintiff had suffered a frozen shoulder from the time of the accident.
It was then suggested to Dr Johnstone that when someone suffers from multiple injuries, it can be the case that one injury or more takes precedence in the person’s mind over another, so that they may feel more pain in one area than the other and not really talk about one area. Dr Johnstone agreed with that proposition, but went on to say that the pain from a frozen shoulder is exquisitely sore and often needs very strong narcotic medication, even to help settle some of that pain, so this pain would have been known at the time. Dr Johnstone further stated that the plaintiff would not have missed having frozen shoulder symptoms.
It was then put to Dr Johnstone that if someone was taking pain relief medication for other symptoms, that might mask the pain from the frozen shoulder. Dr Johnstone disagreed with that notion and stated again that a frozen shoulder is exquisitely sore and is often very difficult to control with the available over the counter type medication.[22]
[22]T3-111 ll 6-21.
In further answers to cross-examination, Dr Johnstone identified that about 20 per cent of people who have frozen shoulder do not fully recover their motion as a result of the condition, and that generally there is around six to nine months of pain and then following the easing of pain, resolution of the range of motion lost. He stated that during the process of full healing, the last part of that is generally pain-free.
The cross-examination of Dr Shaw on this issue was important.
It should be noted that medical records and physiotherapy records were put into evidence. They included a physiotherapy assessment on 31 August 2019,[23] which has a marked visual reference to areas of the body where the plaintiff was then said to be suffering pain. The right shoulder is not indicated as being the subject of any pain. There is no reference in the various medical records of any issue in relation to the plaintiff’s right shoulder until 27 April 2020, when it appears in the records of the Marsden Clinic. This is despite there being reference to pain in the left shoulder shortly after the accident and on other occasions up until that date.
[23]Exhibit 33 at p. 1250.
These records are consistent with the view expressed by Dr Johnstone that the right shoulder injury was not causally related to the accident, but was an idiopathic frozen right shoulder which only manifested approximately eight months after the accident.
After the plaintiff was referred to the 27 April 2020 consultation with Dr Boubaris, which had resulted in the medical record referred to above, the following exchange occurred between the plaintiff and Mr Morton during cross-examination:[24]
“See, you might have had pain in your neck and your left shoulder in the accident, but those other problems – hips, right shoulder, low back, all came on later, didn’t they?---I’m getting much worse as time progresses, yes.
Didn’t ask you that. I asked if they all came on much later?---Well, I’ve got no reason to believe Dr Boubaris would make a false record.
Neither do I, but what I’m pointing to you is are you accepting that they came on much later?---Do I accept that they came on later? Yes.
Yes. Sorry?---Yes.”
[24]T3-93 ll 31-41.
There had been some prior evidence given by the plaintiff which suggested that these injuries had come on in the days immediately following the accident, but that evidence ought not be accepted in light of the various medical records and the answer of the plaintiff referred to above. I accept the evidence of Dr Johnstone that the pain from an initial frozen shoulder would have been exquisite and would have been something which the plaintiff would have been well aware of had it occurred immediately after the first accident. I accept the evidence of Dr Johnstone that the pain would not have been masked by use of pain reducing medication. The medical records are contemporaneous documents and support the finding that the right shoulder injury only manifested in late April 2020, some approximate eight months after the second motor vehicle accident.
Importantly, Dr Shaw was then cross-examined on this issue and the following exchange occurred:[25]
“Yeah. Doctor, can I ask you about so-called frozen shoulder, or adhesive capsulitis? When you gave your opinion in March of 2021, were you of the view or the understanding that his right shoulder problems had arisen close in time to the accident, within a – you know, a few days or a week or something?---Yes, yes, I – that was my understanding.
Doctor, if it were the truth that he had no symptoms in his right shoulder at the time of the accident and that his right shoulder symptoms only arose in April 2020, leading to restriction of movement of the right shoulder, that would mean that it was very unlikely to be related to the motor vehicle accident, wouldn’t it?---Yes, that would be correct.
And more probably than not, it was related to an idiopathic or condition of frozen shoulder?---With that delay in presentation that you mention, yes, I would agree with that.”
[25]T4-38 ll 12-26.
In response to a question asked by the Court as to what idiopathic meant, Dr Shaw explained in part that the most common cause of frozen shoulder is idiopathic, which means that there is no known cause and it just happens. Dr Shaw identified that the group of people most frequently affected are those between the ages of 40 - 65, and females more than males.
In re-examination, the following exchange then occurred with Dr Shaw:[26]
“And in Mr Murphy’s case, is it – I would like you to assume that it was April 2020 when he first identified the difficulties he was having with his right shoulder, but he had earlier identified other issues as a result of the 28 August 2019 accident. Did he identify that for you at the time of the exam?---Yes. My understanding is that, as a result of the accident on the 28^th of August 2018 [sic], he has soft tissue injuries to the shoulders and that subsequent to that, he developed adhesive capsulitis. So I accepted the relationship between the two. In other words, this was a post-traumatic frozen shoulder as opposed to an unrelated idiopathic frozen shoulder. That was my educated guess when I was interviewing Mr Murphy for the purposes of this report.”
[26]T4-43 ll 8-16.
That last exchange does not take away from the answers which he gave in cross-examination. Dr Shaw clearly identified that his report was produced as a result of an understanding that the frozen shoulder had arisen close in time to the accident, being a few days or a week. Dr Shaw accepted that if it had only manifested by symptoms in April 2020, it was very unlikely to be related to the motor vehicle accident.
In relation to the evidence, I find that it was not until April 2020 that the symptoms of frozen shoulder emerged in relation to the plaintiff. I find this was approximately eight months after the second accident. I find that on the balance of probability the frozen right shoulder injury was an idiopathic injury not causally related to the accident, and accordingly whatever permanent impairment to the whole body that arose from this condition, it was not caused by the second accident.
I will allow zero per cent whole body impairment in respect of this particular injury as a result.
(d) Lumbar spine and bilateral hip injuries
Dr Johnstone, in his 11 March 2021 report, recorded that in respect of the lumbar spine there was symmetrical movement with discomfort and placed it in the Lumbar Spine DRE Category I, with no impairment.
However, Dr Johnstone noted that with the plaintiff’s ongoing pain he would be eligible under Chapter 18 for a two per cent impairment of the whole body. Dr Johnstone noted elsewhere in his report that the plaintiff’s main issue with his lumbar spine was pain, and in respect of his examination, he had the following recorded:[27]
“[The plaintiff] was globally tender over the spine from C7 to the sacrum. He was tender along the left pelvic rim, but said gave him, when palpated, a nausea feeling. There appeared to be normal neurological function in the upper and lower limbs. [The plaintiff] was seen to be able to stand on his tiptoes and heels and undertake a partial squat. [The plaintiff] was seen to get in and out of a chair easily and on and off the examination couch easily.”
[27]Report of Dr Johnstone dated 11 March 2021 at p. 6.
In respect of the hips and the associated pain which the plaintiff had complained of, and which was sought to be linked to the second accident, a similar position pertained to that of the frozen right shoulder. That is, the contemporaneous medical records and physiotherapists records contained no complaints about pain in either hip prior to

24 February 2020.
Dr Shaw, in his 14 March 2021 report, recorded zero per cent whole person impairment for each of the thoracic spine, lumbar spine and permanent impairment for bilateral hip injuries.
In cross-examination of Dr Shaw, the following exchange occurred:[28]
“Yes. Okay. Now, can I ask you about hips, please, Doctor?---Yes.
The condition that this man suffers from in each hip is bursitis, is it not?---Trochanteric bursitis.
Yes. So an inflammation of the trochanteric bursa, or the – is that right?---Yes.
So the bursa being the fluid-filled sac which cushions the greater trochanter at the top of the hip?---Yes.
Yes. That is a degenerative process, is it not?---No, it’s an inflammatory process.
I’m sorry, I’ve got that wrong, Doctor. With respect, you’re quite right; it’s an inflammatory process, commonly seen in people in their 40s and 50s?---Yes.
Doctor, if the symptomatology in the man’s right hip did not emerge until late February 2020, when the accident was in late August 2019, again, it’s unlikely that that’s related to the motor vehicle accident, isn’t it?---I would agree with that, yes.
And similarly, in the left hip, if it did not arise until about a month after – or late March 2020, it’s unlikely to be related to the motor vehicle accident. Is that right?---Yes.”
[28]T4-39 ll 14-35.

The plaintiff saw Dr Kerr 10 times in 2019, which included a number of the occasions claimed in the special damages schedule. I find that it was likely that the plaintiff would have continued to need to consult with Dr Kerr into the foreseeable future, irrespective of the two accidents. Whilst steps were being taken to address the plaintiff’s Childhood Trauma, the evidence does not support that he was suddenly going to cease seeing Dr Kerr in August 2019. Indeed, given the interaction between his existing psychiatric conditions and his ASD, with the functions he intended to carry out as a legal practitioner, it is almost inevitable that he would have continued to see Dr Kerr on a regular basis in order to deal with the likely difficulties that he would have experienced in his workplace as a result of his inflexible and rigid belief system.
Merely because there was an exacerbation of the plaintiff’s condition does not mean that he would not have been receiving these services on an ongoing basis. I allow nothing for these claimed amounts.
Two amounts claimed by the plaintiff relating to Dr Boubaris for 20 April 2020 and 27 April 2020 are objected to. They are recorded as relating to the “hip, right shoulder”. Given my findings that these injuries were not related to the accidents, these amounts should be disallowed in full.
Similarly, under the category Dr P Zheng - QDI Browns Plains, there are four entries for 15 April 2020, 24 April 2020, 28 April 2020 and 1 May 2020 where the services were for either the left or right hip or right shoulder. Given my findings that these injuries were not as a result of the accidents, nothing should be allowed for these entries.
In the same vein, there was an entry objected to for Dr A C Chong - Queensland X-Ray on 23 April 2020, which is said to be for “right hip/shoulder”. Given my prior findings that those injuries were not related to the accidents, no amount should be allowed for this entry.
The next claim objected to relates to Andrew Gorman, chiropractor. The defendant submitted that there was no evidence that it was objectively reasonable for the plaintiff to attend a chiropractor at all, or, alternatively, with the frequency he did. Reliance was placed on the decision of McMeekin J in Bezant v Davis & Anor [2010] QSC 229. In that case, his Honour, when dealing with chiropractor charges claimed in relation to a negligently inflicted injury, commented on this issue by observing that the plaintiff bears the onus of proof. His Honour noted that the relevant question of reasonableness included a consideration of at least two other factors, in addition to the plaintiff’s claim that the treatment provided him with some relief. The first factor was a recognition that the relief was temporary, and its effect was spent after a week or so, with the overall cost claim therefore becoming very significant. The second factor was that his Honour noted that there was no medical evidence to support the claimed need for treatment.
His Honour concluded at paragraph [75]:
“…[W]here there is no evidence that a treatment is based on an accepted body of scientific knowledge then in my view it is very difficult for the plaintiff to demonstrate that a substantial expense is necessary or reasonable.” (footnotes omitted)
In the present case, Dr Shaw and Dr Johnstone were called in relation to the physical injuries which the plaintiff had incurred. Neither of those doctors gave evidence as to whether there was a reasonable need for chiropractic services. The mere fact that the plaintiff attended for that treatment cannot be determinative of whether the ongoing expense was reasonably necessary for the treatment of the injury.
The plaintiff simply did not discharge his onus of proof that the chiropractic treatment was a reasonably necessary expense as a result of the recoverable injuries.
I disallow them in whole.
The next claim was for Woodridge Parklands Plaza Chempro Chemist on four occasions for cannabin oil, and the attendance at the Healing Leaves Clinic in Brisbane on one occasion for the prescription.
Again, the plaintiff did not provide evidence that such expenditure was reasonably necessary as a result of the injuries, and I would not allow any amount for those occasions.
The next matter is paid domestic assistance in the period 28 July 2020 through to

22 May 2023 with payments being made to Max Murphy, Home Instead, Jonathan Hill, Tarlia Hall and Maxine.
Ultimately, the invoices associated with these payments were not put into evidence. That these people or entities were paid is not in dispute on the dates identified and in the amounts identified. Except for some additional descriptions appearing on the relevant schedule in relation to Jonathan Hill for three occasions, the schedule itself provides no indication of the work undertaken.
The defendants say that there is a dearth of evidence to support the reasonableness of the claim. The defendants submitted that the plaintiff’s evidence about what was actually done and why it was done for him, was sparse in the extreme.
The plaintiff did give evidence-in-chief about Max Murphy, who was his nephew. This evidence, in effect, was that Max Murphy did things that the plaintiff could not do for himself such as lawn mowing, some tidying up of vegetation around what was left at the office so that it was risk-free of fire. That office was situated on the same industrial site at which the plaintiff resided at in his mother’s former house.
The plaintiff’s evidence was that entries for Home Instead were said to be for cleaning upstairs and things like washing and ironing clothes.
The plaintiff’s evidence was that the reference to Jonathan Hill for lawn mowing and tyre rotating was a reference to things which the plaintiff had paid him to do.
The plaintiff’s evidence was that the reference to Maxine was a lady whom the plaintiff engaged directly to provide inside type assistance in the nature of vacuuming, cleaning the toilet, cleaning the bathroom, ironing and washing.
Finally, the plaintiff’s evidence was that in March 2023, there was an amount of $180 for Jonathan Hill which the plaintiff thought may have been Jonathan Hill jacking up some portable buildings and shipping containers by putting some bricks under them. He identified that that needed to be done to provide ventilation to the floor so it would not rot. This was, again, in respect of buildings or containers at the industrial site where the plaintiff resided in his mother’s former home.
I do accept that his pain made it likely that the plaintiff needed some assistance for services, particularly for outdoor areas such as gardening and mowing, and some forms of cleaning in the house. I have assessed this at an ongoing basis to be 3 hours per week. The figures claimed are within what I have assessed as being necessary for future paid assistance calculated at 3 hours per week. Whilst the evidence on these claims is not entirely satisfactory, I think it is sufficient to establish that work done was reasonably necessary as a result of the recoverable injuries. I would award $14,299.25.
The next category is for vehicle maintenance incurred on 10 February 2021 in the amount of $150 for Kristi’s Car Detailing. That amount was identified in evidence as being for detailing of the plaintiff’s car which he said he sold because the suspension was causing him too much pain. I will allow that amount as the plaintiff’s evidence was that this was work he could not do himself, which I accept. It would have involved the cleaning of the internal area of the car, with repetitive type bending, in a confined area.
Accordingly, for the third category, in total, I will allow $14,449.25
Interest will be paid on this sum, and was calculated in the following way (with reference to the spreadsheet provided by the plaintiff):

PERIOD

AMOUNT

INTEREST
@ 2.20% per annum
(up to judgment date)

21 July 2020 to 22 May 2025

$14,449.25

$1,537.88

For the period between submissions and judgment, I would allow a further sum of $6,000 to represent that further expenditure will have occurred, including on a periodic basis. The total sum will be $21,987.13.
(d) Fourth Category - amounts in dispute, but if allowed, interest should not be awarded
In relation to the fourth category, the amount claimed by the plaintiff is $7,100.48. Again, there are a variety of sub-categories which I will deal with individually.
The first sub-category disputed is the costs of attendances with Dr Kerr, which were bulkbilled. For the reasons I set out under the previous heading, in my view, these attendances with Dr Kerr would likely have been incurred regardless of the injury, and accordingly I will allow nothing under this head sub-category.
The second sub-category relates to entries for the purchase of a Holden Rodeo Ute and then various expenses in relation to it becoming operative.
The plaintiff gave evidence that he sold his prior car, which was a small Mitsubishi, and bought the Holden Rodeo Ute because it had better suspension. The plaintiff said in evidence that apart from the original purchase price of $2,500, the other amounts were either to make the car run, or for the purposes of making it run safely.
The plaintiff sold the Mitsubishi car, but nowhere in the schedule is there a corresponding credit for the price obtained on the sale of that motor vehicle. There has been no attempt to set off that price against the purchase price of $2,500 and costs to make the vehicle run, or run safely.
The plaintiff always had to have a vehicle. He simply switched from one vehicle to another vehicle. The plaintiff may have made an astute purchase by buying it at the low price of $2,500 and making it safely runnable by expending these further moneys. All of this is speculation, because no attempt was made to justify in any specific monetary terms what the different position was from the value of the prior Mitsubishi to the cost of acquisition of this vehicle, including costs and repairs to make it run safely.
The mere fact that there was some expenditure does not mean that there was a recoverability of that expenditure as reasonably necessary losses incurred by the plaintiff as a result of the two accidents.
I do not allow any amount for this second sub-category.
Future damages claimed
(a) Additional future vehicle expenses
The plaintiff made a claim of $199,800 for what are called ‘additional vehicle expenses’. It was said to be the difference in costs between a Land Cruiser and the Suzuki Swift which the plaintiff had owned at the time of the second accident. The calculation of it is set out in Annexure “C” of the written submissions of the plaintiff. It is calculated by way of the opposing capital costs and running costs of the two vehicles, broken down into weekly sums, with the claimed delta between those opposing costs said to be the recorded costs over 20 years, then discounted by 40 per cent. The capital costs and running costs were sought to be established by evidence before the Court by way of the RACQ Private Vehicle expenses 2022 document, which was put into evidence. The problem with that evidence is that the RACQ document assumed a level of usage of a vehicle which was highly unlikely in the present case. Ultimately, I do not have to resolve this evidential difficulty.
The only evidence which really pertained to the prospect of the acquisition of a Land Cruiser by the plaintiff was a part of the report of Mr Roehrs dated 22 November 2021, where at page 22 it recorded the plaintiff identifying that he had purchased the Holden Rodeo Ute recorded in the special damages section and that “…he continues to experience a jarring from the low quality of suspension.” It was on that basis for physical and psychological reasons that Mr Roehrs said it was reasonable for the plaintiff to upgrade to a higher vehicle and longer wheelbase with good suspension and a sprung or air suspension seat. Mr Roehrs said that it was not within his expertise to provide cost discrepancies between this vehicle at the time of injury and one that meets that recommendation.
The plaintiff did not himself give evidence that he continued to experience a jarring from low quality suspension found on the Holden Rodeo Ute which he had bought. The plaintiff’s evidence was the only good thing about the Holden Rodeo Ute was the suspension. The plaintiff, in his evidence, identified that he had some expertise with vehicles and that he had specifically bought the Holden Rodeo Ute because of the wheel base and the suspension.
Whilst he identified elsewhere in his evidence that he still had pain when driving, the plaintiff did not identify that was because the Ute that he had purchased, in fact, had poor suspension.
The plaintiff has not discharged his onus in establishing that this alleged loss is reasonably necessary as a result of his injuries. The large amount of this claim supports that the sum sought is unreasonable given the very small use the plaintiff makes of vehicles. The plaintiff only drives a few times a week and not very far from his home.
I allow no amount for the additional vehicle expenses claimed.
(b) Additional future travelling expenses
The plaintiff made a claim of $38,345 for additional travelling expenses, being the difference between business class airfares and economy class airfares, calculated in accordance with Annexure “C” to the plaintiff’s submissions.
The plaintiff gave no evidence of his intention to travel anywhere. Even if there had been an intention to travel, I am not satisfied that this would be an objectively reasonably necessary head of loss for the plaintiff. The plaintiff has not discharged his onus in establishing that this alleged loss is reasonably necessary as a result of his injuries.
In the circumstances, I allow nothing for this head of loss.
(c) Future residential modifications
This head of claim for future residential modifications has three sub-categories, each referrable to a different point in time. They can be summarised as follows:
(a)a present claimed amount of $20,700;
(b)a second claimed amount of $11,530, being a portion of the present value of $20,700 to be spent in 12 years’ time;
(c)a third claimed amount of $6,417, being a portion of the the present value of $20,700 to be spent in 24 years’ time.
The calculations for each of these three sub-claims are found in Annexure “C” to the plaintiff’s final submissions.
I accept the submissions of the defendants, that there was no evidence to demonstrate exactly what the claimed modifications were, or the basis for their calculation. At best, there was evidence of:
(a)a claim for a spa sought to be acquired on three separate occasions over the lifespan of the plaintiff at a cost of $1,799 per individual purchase; and
(b)a high quality recliner chair at an approximate cost of $2,000 per individual purchase,[83] again to be acquired on three separate occasions over the life of the plaintiff.
[83]See the report of Mr Roehrs dated 22 November 2021 at p. 22 for pricing evidence.
The plaintiff had been residing at his mother’s former residence, and at the time of the trial, had commenced staying for the majority of the week at Ms Hill’s residence. There was no evidence about required modification of Ms Hill’s or Mr Murphy’s actual residences.
In relation to the spa and recliner chair, no medical evidence was led that supported that these items were reasonably necessary. At most, the spa would prove some temporary pain relief. In relation to the recliner chair, the highest the evidence rose was that Mr Roehrs said in his report that it was recommended to assist full body support and to participate in meditation. The temporary relief of pain and Mr Roehrs’ recommendation does not establish, in my view, that these two expenditures are reasonably necessary ones as a consequence of the recoverable injuries.
The plaintiff has not led other detailed evidence which would support findings of a required and reasonably necessary expenditure for alterations in the sum claimed. I will allow, however, a modest sum of $5,000 to assist with modifications to be made that may assist with day-to-day tasks such as preparing meals or doing the washing or hanging out clothes.
(d) GP consultations
This head of loss is for GP consultations was said to be made necessary by the plaintiff’s injuries. It uses as its basis the plaintiff’s statistical life expectancy of 35 years.
The plaintiff’s calculation is set out in Annexure “C” to his final submissions. It is for four consultations each year at $75 per consultation, discounted at 5 per cent per annum over 36 years, leading to a claim of $5,000.
The defendants submit that this amount should be discounted at a higher rate of 15 per cent for contingencies due to the length of period, resulting in a starting figure of $4,300.
The defendants further submit that the necessity for some attendances will be unrelated to the injuries from the accidents (eg the hips and the right shoulder) and asserts that $2,000 will be an appropriate allowance.
Given the significant period of time involved, I think that the better discount should be 15 per cent for contingencies, resulting in the $4,300 figure. This sum should be further reduced.
Doing the best that I can and recognising that there will be reasons other than the injuries associated with the accidents causing the plaintiff to see his GP, I think that two-thirds of that figure ought to be awarded covering a period of 32 years, resulting in the figure of $2,867.
(e) Physiotherapy
The plaintiff claims 13 sessions per annum at a rate of $90 per session for the 36 year period. The plaintiff discounts the amount at five per cent per annum over the 36 year period, thereby claiming $20,000.
The defendants say that the five per cent discount results, in fact, in an amount of $19,908, and that a 15 per cent discount would result in a figure of $17,000.
For the reasons set out above, I find the starting figure should be $17,000, using the 15 per cent discount due to the lengthy period involved. Further, I am of the view that there will be sessions of physiotherapy which will likely be unrelated to the accident. There was a pre-existing neck complaint which periodically received physiotherapy. That position was unlikely to have altered, regardless of the accidents. Further, the injuries to the right shoulder and the hips, on my findings, were not caused by the accident. In my view, again, two-thirds of the $17,000 figure ought to be allowed covering a period of 32 years. That figure is $11,333.
Whilst it is true that Dr Shaw and Dr Johnstone did not give evidence as to the need for further physiotherapy, in my view it is likely that the injuries from the second accident will periodically create the need for physiotherapy. I am satisfied that there is likely to be consequential muscular strain or associated pain deriving from the original injuries or as a result of compensatory movements by the plaintiff in seeking to deal with residual pain from the original injuries. Just as there was an obvious need at intermittent times prior to the second accident for the plaintiff to seek out the treatment of physiotherapists in relation to a chronic neck pain, there is likely, in my view, to be a need to seek out physiotherapy services during the 32 year period relevant to the recoverable injuries. The amount set out above will provide appropriate compensation for that likely future necessary and reasonable need arising from the injuries incurred in the second accident.
(f) Chiropractic treatment
The next claim is for chiropractic services. The plaintiff claims 13 sessions per annum at $90 per session over the 36 year period, discounted at five per cent, resulting in a figure of $20,000.
The defendants say that the plaintiff did not suggest he derived any significant benefit from the chiropractic treatment.

I note that the plaintiff did say in evidence-in-chief that he was receiving chiropractic treatment in part to seek to reduce pain, but that was all that was said.
No medical evidence was led from Dr Shaw or Dr Johnstone as to the need or benefit of chiropractic services in the current circumstances.
Unlike the claim for physiotherapy, I am not satisfied that the receipt of chiropractic services ought to be separately awarded, particularly where the evidence is simply that they were incurred to seek to reduce pain. What reduction it had and for what length of period was not articulated. Consistent with my reasons for this component in the past special damages section, I am not satisfied that the plaintiff discharged his onus in demonstrating that these services were objectively reasonable and necessary.
I would allow nothing for this head of damage.
(g) Participation in multi-disciplinary pain management program
The plaintiff claims an amount of $21,072 for pain management progress, but did not in closing submissions identify what the source was for that sum of money. Dr Shaw, who was called by the plaintiff stated at page 9 of his 14 March 2021 report that the plaintiff “… requires pain management and supervised rehabilitation for his injuries, particularly the right shoulder injury. Comprehensive pain management and rehabilitation would cost in the order of $8,000.”
The defendants focussed on Dr Shaw’s opinion, emphasising that it was said to be particularly for the right shoulder. By the time of the trial, the right shoulder itself had settled and was not causing ongoing pain. I have found that the right shoulder was not caused by the second accident and that the pain to the hips was also not caused by the second accident.
Nonetheless, there is ongoing pain derived from the second accident. There is a reasonable basis founded on Dr Shaw’s opinion for the plaintiff to receive some pain management and rehabilitation for his injuries. Whilst Dr Shaw emphasised the right shoulder, his opinion was not limited to that injury. The amount of $8,000 was not challenged in cross-examination, but given that the right shoulder played a significant role in the proposed management and rehabilitation, I would allow half of that amount, being $4,000.
A provision for such pain treatment and rehabilitation further bolsters my findings that the plaintiff does have, and will have in the future, an ability to carry out a portion of his own care, despite the existence of residual pain.
I would award $4,000.
(h) Psychological therapy
The next claim is for psychological services. This is claimed in the amount of $7,800. The calculation for this claim is not set out in Annexure “C” or in the closing submissions of the plaintiff. For the same reasons that I have disallowed a similar claim under the special damages category, I would disallow this claim. If the plaintiff had not been injured, he would, in my view, have continued to see Dr Kerr for the foreseeable future. This is particularly so if he sought to carry on any type of legal practice where he still had the inflexible behaviour practices and rigidity of thought processes which Dr Kerr periodically sought to ameliorate in her sessions by providing guidance to the plaintiff as to how he should interact with others in a social and professional setting. Nonetheless, the defendant was prepared to allow a modest award of $2,000. On that basis, I am prepared to award that amount of $2,000 under this head of damage.
(i) Psychiatric treatment
The plaintiff claims psychiatric treatment in an amount of $5,700. Annexure “C” to the plaintiff’s final submissions does not provide for a form of calculation for this sum.
The defendants say that this falls into the same category of psychological therapy which has been dealt with above. Further, it was submitted by the defendants that the plaintiff’s treating psychiatrist was not called to say what element of treatment was required because of any effect of the motor vehicle accidents. The defendants submitted that the plaintiff, in his own evidence, said that his main problem was now his homicidal and suicidal thoughts. It was contended that this was the main problem before both accidents.
I do not accept the submission that no award should be made under this head of damage. As Dr Lockwood identified, the effect of a series of traumas through a person’s life can have a cumulative effect, which is what she opined had happened here. I have accepted this has occurred in this instance. I have found that the cumulative effect of traumatic experiences ultimately caused the decompensation of the plaintiff after the second accident.
The plaintiff has received both psychological and psychiatric treatment after that second accident. As was noted in Dr Lockwood’s second report, there has been some improvement to the plaintiff’s mental wellbeing as a result of treatment. However, I think it likely that some allowance must be made for additional psychiatric treatment in circumstances where this cumulative effect has occurred, where the plaintiff presents with a complex psychiatric array of disorders, coupled with ASD, and where the ASD has made effective treatment more difficult.
I would allow a lump sum of $4,000 under this head of loss, doing the best that I can in the circumstances, and taking into account the facts I have referred to.
(j) Psychotropic medication
This claim deals with future use of psychotropic medication. The plaintiff claims an amount of $13,626 based on a calculation set out in Annexure “C” to the plaintiff’s final submissions. That is calculated by a figure of $15.40 per week over 36 years, discounted at five per cent.
The defendants say the evidence does not support that this level of medication would be needed for the full life expectancy of the plaintiff. The defendant says there was simply no evidence about the length of its use. Reference was made to Dr Lockwood, who had pointed out that the plaintiff’s medication would need to be monitored and adjusted in the future. However, Dr Lockwood did not give any evidence about the amount or cost. The defendant says a modest allowance of $5,000 would be generous to cover psychiatric treatment and medication.
Doing the best that I can in the circumstances, I would allow an amount of $7,000 for psychotropic medication for a period of 32 years. In a similar way to the position I set out for psychiatric treatment, the cumulative effect of the first and second accidents on the pre-existing psychiatric disorders of the plaintiff and the presence of the ASD creates a complex psychiatric situation for the plaintiff. Dr Lockwood had noted that there had been improvement between her first and second report, and in cross-examination, accepted that there was potential for further improvement. Tempered against this was the evidence of Dr Kerr, who had been delivering the gold standard treatment for the trauma experienced, but had met the difficulties she had identified.
I do not think that the evidence established that the psychotropic medication will likely be needed to the end of the 32 year period, and certainly not in the quantities which it has been used to date. However, a figure of $7,000 for 32 years represents an appropriate assessment which takes into account that such drugs may well be used at reduced levels and eventually ceased in the future. I am not satisfied that the plaintiff has established a case which would justify a greater award under this head of damage.
I will allow $7,000 for this head of loss.
(k) Analgesics medication
The plaintiff claims analgesic medication in the amount of $5,309, calculated in accordance with Annexure “C” to the plaintiff’s final submissions. It is calculated at $6 per week over 36 years, discounted at five per cent per annum.
The defendants say that a reference to Exhibit 1A, which looked at the amounts spent on analgesics in the six months up to the start of the trial, shows that the only indication of analgesic tablets were Melobic tablets at $14.99 and Celexi capsules at $15.99. It was said that the cost would therefore be about 60 cents per week which, for the plaintiff’s life expectancy, would be about $530. The defendant submitted that an allowance of $1,000 for analgesic medication would be appropriate.
I will allow $4,800 as a lump sum for analgesic medication. I do so for the following reasons.
The requirement of analgesics both before and after trial are consistent with the existence of pain and the likelihood that a level of pain would remain. Analgesics are objectively reasonable and necessary to deal with such pain. Their use places the plaintiff in a better position to carry out portions of his own care as I have found above.
Accordingly, I would award the amount of $4,800 for analgesics medication covering a period of 32 years.
(l) Fees for management of financial affairs
There had at one stage been a claim for fees for the management of the plaintiff’s financial affairs. The plaintiff’s final revised submissions did not seem to advance such a claim. In any event, I would not allow it. Ms Fritter performed paid accounting services for the plaintiff prior to the two motor vehicle accidents. His financial affairs after the accident have had some complexity arising from various factors including various share returns and the use of trusts and corporations. The plaintiff did not satisfy me that there should be some recoverable amount because Ms Fritter has to do work she otherwise would not have done, but for the accidents. Even if this head of damage was maintained, I would have allowed $0 for it.
Summary of Damages
In summary, the award of damages are as follows:

Damage type	Amount
General damages	$17,150
Past economic loss	$81,137.39
Past loss superannuation	$0
Future economic loss	$331,432.49
Future loss of superannuation	$0
Interest on past economic loss	$10,228.18
Future loss of earnings attributable to impairment of entrepreneurial skills	$0
Past gratuitous assistance	$0
Interest on past gratuitous assistance	$0
Future gratuitous assistance	$0
Future paid assistance	$107,737.50
Special damages paid by the plaintiff (1^st category - amounts accepted as owing, together with interest and additional allowance)	$18,915.32
Special damages paid by the plaintiff (2^nd category - amounts accepted as owing, but for which interest is not payable and additional allowance)	$5,558.80
Special damages paid by the plaintiff (3^rd category - amounts in dispute, but if allowed, interest should also be awarded and additional allowance)	$21,987.13
Special damages paid by the plaintiff (4^th category - amounts in dispute, but if allowed, interest should not be awarded)	$0
Interest on special damages (4^th category)	$0
Future residential modifications	$5,000.00
Future GP consultations	$2,867.00
Future physiotherapy	$11,333.00
Future pain management program	$4,000.00
Future psychological therapy	$2,000.00
Future psychiatric treatment	$4,000.00
Future psychotropic medication	$7,000.00
Future analgesics medication	$4,800.00
TOTAL	$635,146.81

Order

I enter judgment for the plaintiff against the third defendant for $635,146.81 for damages. This amount is inclusive of interest.

CITATION:	Murphy v Madill [2025] QSC 103
PARTIES:	DANIEL JOSEPH MURPHY (plaintiff) v SCOTT DAVID MADILL (first defendant) JAMES RUDDELL (second defendant) AAI LIMITED ABN 48 005 297 807 TRADING AS SUNCORP INSURANCE (third defendant)
FILE NO:	10749 of 2021
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 May 2025
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2023, 30 May 2023, 31 May 2023, 1 June 2023, 2 June 2023 and 7 August 2023
JUDGE:	Sullivan J
ORDER:	1. Judgment for the plaintiff against the third defendant for $635,146.81 for damages.
CATCHWORDS:	DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – METHOD OF ASSESSMENT GENERALLY – GENERALLY – where the plaintiff seeks damages for personal injuries arising out of two motor vehicle accidents – where liability is admitted by the defendants – where the plaintiff has pre-existing psychiatric conditions – where the plaintiff has degenerative and inflammatory physical injuries – where damages are assessed under the Civil Liability Act 2003 (Qld) – whether the injuries suffered by the plaintiff were caused by the accidents and what damages follow from each injury DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARING CAPACITY– GENERALLY – where the plaintiff was admitted as a solicitor in the Supreme Court between the first and second accidents – where the plaintiff seeks damages for past and future economic loss based on the income of a lawyer in a mid-tier firm earning in the high range – where the plaintiff was working as a sole practitioner under supervision – whether the award for damages for past and future economic loss should be made on that basis Civil Liability Act 2003 (Qld), s 54(2), s 55, s 59, s 60 Civil Liability Regulation 2014 (Qld) Bezant v Davis & Anor [2010] QSC 229 Brown v Daniels [2018] QSC 209 Caffrey v AAI Limited [2019] QSC 7 Kemp v Gold Coast Hospital and Health Service [2024] QSC 259 Medlin v State Government Insurance Commission (1995) 182 CLR 1 R v Daniel [1998] 1 Qd R 499 Stevens v DP World Melbourne Limited [2022] VSCA 285 Sutton v Hunter & Anor [2021] QSC 249
COUNSEL:	S D Anderson for the plaintiff R C Morton with E J Williams for the defendants S J Tan appearing on behalf of the Legal Services Commissioner
SOLICITORS:	Macrossan & Amiet Solicitors for the plaintiff Jensen McConaghy Lawyers for the defendants

PERIOD	AMOUNT	INTEREST @ 2.20% per annum (up to judgment date)
21 July 2020 to 22 May 2025	$14,449.25	$1,537.88