Turner v Blair

[2013] QDC 256

DISTRICT COURT OF QUEENSLAND

CITATION:

Turner v Blair & Anor [2013] QDC 256

PARTIES:

HELENE CHRISTINE TURNER
(Plaintiff)
v
DANIELLE BLAIR
(First Defendant)
RACQ INSURANCE LIMITED
(Second Defendant)

FILE NO/S:

D35/11

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

October 16, 2013

DELIVERED AT:

Brisbane

HEARING DATE:

October 14-15, 2013

JUDGE:

Koppenol DCJ

ORDER:

Judgment for the plaintiff for $24,736.73. I will hear the parties as to costs.

CATCHWORDS:

DAMAGES – PERSONAL INJURIES – GENERAL & SPECIAL DAMAGES – liability admitted – plaintiff injured in motor vehicle accident – plaintiff not employed for 5 years pre-accident – plaintiff the primary carer for disabled adult sister – whether plaintiff entitled to economic loss damages

Civil Liability Act 2003, s 55
Civil Liability Regulation 2003

Malec v JC Hutton Pty Ltd (1990) 160 CLR 638, applied

COUNSEL:

R J Morton for the plaintiff
G C O’Driscoll for the defendants

SOLICITORS:

Morton & Morton for the plaintiff
Quinlan Miller & Treston for the defendants

Background

1. Helene Christine Turner claims damages for personal injuries. She was injured in a motor vehicle collision on March 16, 2009. She was the driver of a car which was rear-ended by another car at speed and pushed into the car in front.

1. Defendants admitted liability. The trial was limited to quantum.

Injury and after-effects

1. Ms Turner suffered a neck whiplash injury which exacerbated pre-existing asymptomatic degenerative changes in her cervical spine. She was 58 years old at the time.

1. The neck injury quickly became (and remained) painful, with associated upper-body stiffness, restricted range of neck movement and headaches. Ms Turner has good days and bad days, depending on the intensity of the pain and the effect of alleviating medication. Housework takes longer and some tasks are now beyond her capacity. Prolonged sitting or standing causes pain.

1. Ms Turner was previously very active for her age. She swam for exercise and was an accomplished pianist. She was also the carer for her adult sister who suffers from Down’s Syndrome. Those activities have had to be limited (and some discontinued) because of the pain.

Medical assessment

1. Specialist orthopedic medical opinion differs as to the extent of Ms Turner’s incapacity. Dr David van der Walt thought that there was a 5-8% whole person permanent impairment (based on the AMA’s rating criteria for cervical disorders) ––whereas Dr Paul Pincus thought that no permanent impairment had been suffered. It is medically accepted that whilst most patients fully recover from cervical injuries after about 6 months, a small percentage never fully recover or take a very long time to do so.

1. Ms Turner was a most impressive witness and I have no hesitation in accepting her evidence. She said that she still experiences some pain, stiffness and restricted movement and I will proceed on the basis that she does.

General damages

1. It is therefore reasonable in my opinion, to assess Ms Turner’s cervical spine injury as moderate (and not minor), in terms of the Civil Liability Regulation 2003.  That leads to an ISV of 5 to 10 (Item 88). I regard an ISV of 10 as appropriate, resulting in an allowance of $11,000 for general damages.

Past special damages

1. Claims were made for massages ($1,100 + $96.30 interest), physiotherapy ($155 + $20.72 interest), pharmaceuticals ($1,963.48 + $20.72 interest), travelling expenses ($120 + $10.51 interest) and external house cleaning ($250). In my opinion those expenses (totalling $3,736.73) are justified and reasonable.

Future special damages

1. Claims were made for massages ($9,612.50), pharmaceuticals ($6,321.18), gardening ($11,635), external house cleaning ($7,690) and internal cleaning ($50,754). In my opinion, these claims are excessive because (a) Ms Turner ceased having massage therapy about 6 months ago, (b) I did not understand that she will need accident-related pharmaceuticals for the rest of her life, and (c) the gardening and cleaning services claims assume Ms Turner’s inability for the rest of her life to perform any of those tasks.

1. Ms Turner initially (August 30, 2010) claimed a global sum of $10,000 for future paid care and assistance. That is the sort of global figure which, in my opinion, takes proper account of the fact that Ms Turner already performs some of those tasks and may not need all of the assistance claimed as the years go by. Another important contingency factor (which unfortunately was not explored in evidence or submissions) is that there may well be some governmental or private charitable assistance available to Ms Turner as the carer of her Down’s Syndrome adult sister. One example is the domestic assistance and home maintenance available through the Queensland Department of Communities, Child Safety and Disability Services.

Economic loss

1. Ms Turner claims $50,000 for past economic loss, $4,011 for interest, $5,400 for past superannuation, $68,722.50 for future economic loss and $5,500 for future superannuation.

1. Ms Turner worked in the disability sector for many years after separating from her husband in the 1980s. She assisted in providing community access for people with a disability. Although her disabled sister lived with her when they lived in Townsville, Ms Turner was able to work full-time then as her friends and relatives helped in keeping her sister company. On occasions, Ms Turner even took her sister with her to her workplace. They moved to Buderim in late 2003 and then to Hervey Bay (where they still reside) in early 2004.

1. Although Ms Turner planned to go back to work after her sister became settled in their new home, she has not been employed since moving from Townsville.

1. In 2005, she provided her resume to the manager of the Hervey Bay Care and Respite Centre––but as she said in evidence, nothing even came of it and no position became available. Later that year or in 2006, she submitted an employment application and her resume to the CEO of Hervey Bay Community Access. Again, nothing came of that. Ms Turner made enquiries of those organisations every 4 to 6 months for the next few years but no employment offer was ever made to her. She also made other employment approaches during that period but did not receive any offers.

1. Ms Turner also made it clear in evidence that even if a job offer had been made to her, she would not have accepted it if she thought that her working and not being at home would create a problem for her disabled sister––who is so heavily dependant upon her. Although Ms Turner said in evidence that she thought that her sister would not now have a problem with her working, there was no evidence that there are now any employment positions (including carer positions at Hervey Bay Day Care and Respite Centre) or opportunities for which Ms Turner might be considered suitable.

1. Under section 55 of the Civil Liability Act 2003, the court may only award damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss:

“… if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.”

1. The position is therefore that Ms Turner was not in employment for about 5 years before the motor vehicle accident, despite actively seeking work. She has not worked since. No job offers were made to her and even if one had been, she would not have accepted it because of her concerns for her sister. Although her sister may not now be problematic in that regard, there was no evidence that there were any possible jobs now available to Ms Turner, who turns 63 years of age in 3 months time.

1. In all of the circumstances, I am not satisfied that Ms Turner has suffered or will suffer any loss of earnings as a result of the motor vehicle accident. I regard the probability or indeed chance of her returning to work as so low as to be regarded as speculative (Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643).

1. However, I formally record that if I had been so satisfied, I would have assessed those damages in the manner and quantum submitted for Ms Turner.

Disposition

1. I assess Ms Turner’s damages as follows:

General damages

Past special damages  

Future special damages
Economic loss (past and future)

$11,000 .00

$3,736.73

$10,000.00

Nil

$24,736.73

1. There will be judgment for Ms Turner in the sum of $24,736.73. I will hear the parties as to costs.