O'Brien v Merton

Case [2020] QDC 299

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Brien v Merton & Anor [2020] QDC 299

PARTIES:

IMOGEN SKYE O’BRIEN

(plaintiff)

v

LEANNE EDNA MERTON

(first defendant)

and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)
(second defendant)

FILE NO:

SD304/2019

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Southport District Court

DELIVERED ON:

6 November 2020

DELIVERED AT:

Southport

HEARING DATES:

1 to 2 October 2020

JUDGE:

Kent QC, DCJ

ORDER:

(a)   There will be judgement for the plaintiff against the defendants for $41,560.00

(b)  I will hear the parties as to costs

CATCHWORDS:

INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – RISK OR LIABILITY – BODILY OR PERSONAL INJURY – where the plaintiff was involved in a collision between her vehicle and that driven by the first defendant – where the plaintiff says that she suffered spinal injuries as a result of the collision – where liability is admitted – where the issue at trial related solely to quantum – where the plaintiff previously worked as an enrolled nurse, which was a physically demanding occupation – whether the plaintiff’s injuries will cause a degree of restriction which may be causative of future loss in terms of employability and working capacity.

LEGISLATION:

Civil Liability Act 2003 (Qld), s 55
Civil Liability Regulations 2014 (Qld)

CASES:

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
Ashford v Ashford (1970) 44 A.L.J.R. 195
Ballesteros v Chidlow [2006] QCA 323
Coleman v Anodizing and Aluminium Finishes of Queensland Pty Ltd [2002] 1 Qd R
Colmark (Australia) Pty Ltd v Hall [1998] QCA 105
Graham v Baker (1961) 106 CLR 340
Hooper v King [2011] QSC 324
Lim v Camden & Islington Area Health Authority [1980] AC 174
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Midland v State Government Insurance Commission (1995) 182 CLR 1
Nicholls v Curtis [2010] QCA 303
Nichols v Curtis and QBE Insurance (Australia) Limited [2010] QDC 34
Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211
COUNSEL:

A Harris for the plaintiff
M D Holmes for the defendants
SOLICITORS:

Southern Gold Coast Lawyers for the plaintiff
McInnes Wilson Lawyers for the defendants

Introduction

  1. This is an action for personal injuries suffered by the plaintiff in a motor vehicle accident on 5 February 2018.  There was a collision between the plaintiff’s vehicle and that driven by the first defendant, which occurred at the intersection of service station premises at the corner of the Gold Coast Highway and Nineteenth Avenue, Palm Beach on the Gold Coast.  Liability is admitted.  Thus the issues at the trial relate solely to quantum.

  2. The plaintiff’s case as pleaded is that she suffered spinal injuries which have left her in pain.  She has thus been unable to pursue work as an enrolled nurse and seeks damages for economic loss both past and future.  She also makes a claim for future medical treatments, special damages and interest. 

  3. The defendants defend the matter on the basis that the plaintiff suffered a minimal…

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Details
AGLC
O'Brien v Merton [2020] QDC 299
Case
[2020] QDC 299
Decision Date

CaseChat Overview and Summary

The case of O'Brien v Merton involved a collision between the plaintiff's vehicle and that driven by the first defendant, resulting in the plaintiff sustaining spinal injuries. The primary dispute was the quantum of damages, with the defendants admitting liability for the collision. The court was tasked with determining the appropriate amount for both general and economic damages. The plaintiff argued for special damages of $750 for the past and $1,500 for the future, while the defendants contended that the plaintiff's injury was minimal and that the proposed damages were disproportionate. The defendants also argued that the plaintiff's past economic loss was not proven, and there was no evidence to demonstrate significant restriction in her ability to earn income in the future.

The court considered the evidence regarding the plaintiff's background and the nature of her previous employment as an enrolled nurse, which involved physically demanding tasks. The plaintiff's evidence was accepted regarding the ongoing pain and its impact on her ability to pursue her chosen profession, despite some doubts about her reliability on certain points. The court accepted that the plaintiff was likely to suffer economic loss in the future due to potential restrictions in her employability and working capacity. The court also acknowledged the difficulty in precisely estimating future economic loss, given the inherent uncertainties and contingencies involved.

In determining the appropriate amount for general damages, the court accepted the plaintiff's evidence of ongoing pain and awarded an Impairment Severity Value (ISV) of 4, resulting in general damages of $5,920. For economic damages, the court found that the plaintiff's past economic loss was not proven, but a modest award for future economic loss was appropriate, considering the likelihood of economic loss due to potential restrictions in her future employment. The court awarded a total of $41,560 in damages to the plaintiff.

Orders

Orders of the court

(a) There will be judgement for the plaintiff against the defendants for $41,560.00

(b) I will hear the parties as to costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

The defence of the defendants admits liability for the collision and there is little dispute as to the facts relating thereto. However, as outlined above, the defendant’s pleaded case is that the plaintiff’s injury was minimal in nature. It is pleaded that the ISV of 4 is out of proportion for the plaintiff’s injuries. Further, the plaintiff was not employed at the time of collision and has had further children since which would have impacted on her past economic loss. In relation to future economic loss it is said that the medical evidence does not demonstrate any relevant restriction in the plaintiff’s ongoing ability to earn an income.The evidenceThe plaintiffBackground, education and experience The plaintiff was born on 9 March 1989. She was 28 years of age at the time of the accident and is now 31. She was born and raised in Penrith and completed secondary education there at Xavier College. She studied, firstly, assistant nursing and later enrolled nursing at Nepean College. Her assistant nursing college was a six month course with one practical placement. In her two year enrolled nursing course, which she completed in 2016, she had three blocks of practical experience. This included, firstly, placements in nursing homes, which, understandably, involved significant physical tasks. This included helping patients access the toilet, depending on their varying degrees of mobility, with some assistance from some manual devices. Sometimes these tasks were able to be completed alone, but often two nurses were required for a large patient. Changing sheets for a bed bound patient was a particular physical task which the plaintiff described in some detail. It involves significant effort whilst standing and leaning over; in other words, significant forces are placed on the nurses’ spine. The plaintiff has a relatively small frame, being five feet tall and weighing 45 kilograms. Many of the nursing tasks she undertook involved using her “full force”. In relation to patient transfers, for example to shower or toilet, lifting devices were used but she still had to roll and manipulate the patient. Further, sometimes she had to do this without a lifting device. She assisted patients out of bed and supported them in walking. She would also guide them on the toilet. The plaintiff also had a placement at Nepean Hospital, which involved slightly different tasks. Some of the patients were in need of more acute care and this was more physically demanding work, particularly in the setting of sometimes life threatening, urgent situations. The plaintiff also had a third practical placement at the Springwood Hospital which involved “slow stream” rehabilitation patients. These were younger patients recovering from serious accidents including fractures and spinal damage. This also involved significant physical force, sometimes while bending. It was physically quite demanding work. As set out below, the plaintiff has limited post qualification experience.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The plaintiff submits that special damages of $750 for the past and $1,500 for the future are appropriate.Consideration As to general damages, I accept the evidence of Dr Low, whilst giving due respect to the competing opinion of Dr Boys. The interpretation of Dr Low does appear open on the words of Chapter 18 of the AMA Guides, adding up to 3% whole person impairment in relation to pain in the absence of identifiable anatomic changes; the exercise performed by specialist practitioners in doing so does seem to involve a subtle and complex assessment upon which reasonable minds may differ. However I accept that the plaintiff is in pain, and Dr Low’s opinion is a reasonably available, although contested, conclusion. Thus I accept that there is an assessable impairment relating to the plaintiff’s ongoing pain, and that an ISV of 4 is appropriate, resulting in general damages of $5,920. As to past economic loss, I accept the defendant’s submissions to the effect that in all the circumstances, no actual loss has been proven. Future economic loss is a more difficult question. It is always necessary in such cases to estimate two matters:1. What would have happened if not for the injury; and2. What will now happen.This necessarily compels assessment of future contingencies, and in the once-and –for-all nature of awards of damages, there will often be estimates which are later proven wrong by history.[24] This is the exercise which courts have grappled with, in Malec, McCarthy and the other cases referred to above. Further, it is a question to which there may not be one single correct answer. Generally the exercise of a discretion of this kind where there are many imponderables involved in the assessment falls in a range, which may be fairly wide.[25][24]See Luntz, Assessment of Damages for Personal Injury and Death, Fourth Edition, at [1.2.9]; Lim v Camden & Islington Area Health Authority [1980] AC 174 at 183[25]See Ashford v Ashford (1970) 44 A.L.J.R. 195 per Barwick C.J. at 196 There is significant force in the defendant’s submissions (including that it is curious that no evidence of wage rates was led in the trial), however at the end of the day I find myself in a similar position to the majority in McCarthy, to the effect that a relatively modest global award is appropriate, for the following reasons. The plaintiff struck me as an honest and generally reliable witness. The defendant is correct to argue that at times her reliability on some points may have been questionable. Nevertheless, I accept her evidence as to - The effects of the injury on her, including her ongoing pain;- Her persistence in and dedication to nursing and her declared intention to return to that field, and her motivation to do so to provide for her children; - And consequently, that in pursuit either of that physically demanding profession, which may be restricted, or in being forced into a less physically demanding but less remunerative role, economic loss in the future is a likelihood.