Youssef v Eckersley & Anor
[2024] QSC 35
•15 March 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Youssef v Eckersley & Anor [2024] QSC 35
PARTIES: CHADI YOUSSEF
(plaintiff)
v
GRAHAM RAYMOND ECKERSLEY
(first defendant)v
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)
(second defendant)FILE NO/S:
BS 11195 of 2019
DIVISION:
Trial Division
PROCEEDING:
Civil
DELIVERED ON:
15 March 2024
DELIVERED AT:
Brisbane
HEARING DATE:
2 May 2023 to 5 May 2023 and 31 October 2023
JUDGES:
Wilson J
ORDER:
1. Judgment for the plaintiff against the second defendant for $85,466.56.
2. The question of costs is adjourned.
CATCHWORDS:
DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where the plaintiff suffered physical injuries in a motor vehicle accident, including cervical spine and lumbar spine injuries, and psychological injuries – where liability for injuries is admitted – where quantum of damage is disputed – whether the plaintiff’s psychiatric sequalae is causally linked to the accident – whether the plaintiff can recover damages for loss of earning capacity
Motor Accident Insurance Act 1994 (Qld)
Civil Liability Act 2003 (Qld)
Civil Liability Regulation 2014 (Qld)Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
Edwards v Hourigan and Others [1968] Qd R 202
Graham v Baker (1961) 106 CLR 340
Love v North Goonyella Coal Mines Pty Ltd [2017] QSC 140
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Nichols v Curtis [2010] QCA 303
Stephens v Hoey Fry Pty Ltd [1963] QWN 39
Sutton v Hunter & Anor (2022) 102 MVR 343; [2022] QCA 208
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12COUNSEL:
The plaintiff appeared on his own behalf
G O’Driscoll for the second defendantSOLICITORS:
The plaintiff appeared on his own behalf
McInnes Wilson Lawyers for the second defendant
Table of Contents
The claim
The trial
The plaintiff’s circumstances
Academic qualifications and relevant employment history
Spinal injury and facial injuries
Medical records
Previous x-rays
The plaintiff’s account of his symptoms
Dr Theile – plastic surgeon (called by the plaintiff)
Dr Labrom – orthopaedic surgeon (called by the plaintiff)
Dr Todman – neurologist (called by the plaintiff)
Dr Dickinson – orthopaedic surgeon (called by the second defendant)
Head injury and mental health disorder
Dr Todman (called by the plaintiff)
Professor Whiteford – psychiatrist (called by the plaintiff)
Dr Lovell – forensic psychiatrist (called by the second defendant)
Causation
The assessment of damages
General damages
Past economic loss
Interest on past economic loss
Past loss of superannuation
Future economic loss
Past special damages
Future special damages
The claim
On 22 December 2016, Graham Raymond Eckersley (the first defendant) pulled out of a shopping centre carpark and drove in front of Dr Chadi Youssef (the plaintiff) who was riding his motorcycle along Hamilton Road, McDowall. The plaintiff was knocked off his motorcycle and he was subsequently transported by ambulance to the Royal Brisbane and Women’s Hospital.
At the hospital, it was noted that the plaintiff had a Glasgow Coma Scale of 15 / 15. No shortness of breath, nor loss of consciousness, was reported. The plaintiff was diagnosed with fractured nasal bones, being an open comminuted nasal bone fracture, together with a nasal breach and chin laceration. His injuries were sutured which were removed approximately five days after the accident.
Approximately six months after the accident, a plastic surgeon performed a scar revision on the plaintiff’s nasal bridge.
The plaintiff’s legal representatives filed a claim in this court on 11 October 2019, claiming damages in the sum of $1,056,459.55 against the first defendant and his insurer, Allianz Australia Insurance Limited (the second defendant).[1]
[1]The litigation of the plaintiff’s claim is undertaken by the second defendant on behalf of both the first and second defendants. See sections 44 and 52 of the Motor Accident Insurance Act 1994 (Qld).
The second defendant accepts liability for the accident. The issue in this trial was the assessment of the plaintiff’s damages.
In the claim, the plaintiff alleges that as a result of the accident, he suffered the following injuries:
(a)a head injury including post-concussive syndrome;
(b)a cervical spine injury; and
(c)facial injuries.
The plaintiff’s claim states that in consequence of the injuries and the impediment which they have caused to his working, social and recreational activities, the plaintiff has suffered a psychiatric condition diagnosed as depressive disorder (the psychiatric sequalae).
The second defendant accepts that the plaintiff suffered a cervical spine injury and the facial injuries. However, the second defendant submits that the evidence does not support a finding that the plaintiff suffered a post-concussive syndrome which Dr Lovell, psychiatrist, explained as:
“A post-concussional syndrome is a broadly-based syndrome of headaches, dizziness, concentration difficulties, some difficulties with focus and emotional ability, sometimes associated with fatigue and some memory difficulties, some noise sensitivity, and usually, most of these symptoms will resolve within a month. And the post-concussional syndrome diagnosis is made when there is no clear evidence of serious head injury which is assessed by loss of consciousness, the Glasgow Coma Scale which in this case was normal, 15, the absence of any neurological evidence on MRI scan. Basically, people, if they get a blow to the head and they’re not knocked out and there’s no significant brain injury, describe some post-concussive symptoms, which may continue usually for a month.”
A significant issue in this case is whether the plaintiff’s psychiatric sequelae is causally linked to the circumstances of the accident involving the first defendant or whether it is a pre-existing condition causally independent, not sounding in damages.
The trial
The plaintiff represented himself at the trial which commenced on 2 May 2023.
The plaintiff gave evidence and called the following expert witnesses at trial:[2]
(a)Dr Stephen Yelland, general practitioner;
(b)Dr Don Todman, neurologist;
(c)Professor Harvey Whiteford, psychiatrist;
(d)Dr Robert Labrom, orthopaedic spinal surgeon; and
(e)Dr Richard Theile, plastic surgeon.
[2]None of Dr Yelland, Dr Theodoros or Dr Theile provided expert reports, contrary to r 429G of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
The plaintiff had obtained a report from Leanne Jackson who is a clinical neuropsychologist. The contents of this report were referred to by a number of the reporting experts. However, Ms Jackson was not called as a witness and her report was not tendered as an exhibit.
The second defendant called the following expert witnesses:
(a)Dr Derek Lovell, psychiatrist; and
(b)Dr Ian Dickinson, orthopaedic surgeon.
On the fourth and final day of the trial, the plaintiff experienced a medical episode and the trial was adjourned to 31 October 2023 for final submissions by the parties.
The plaintiff has sent many documents and written submissions directly to my associate, prior to, during and after the May hearing. In relation to the May hearing, the only submissions that I have taken into account are those that have been marked as exhibits.[3]
[3]All other material sent by the plaintiff to Wilson J’s associate is marked for identification.
On 31 October 2023, I heard the final oral submissions from the parties. Upon my request, the parties subsequently provided further written submissions addressing a number of issues that I raised. All material received and sent by the parties since 31 October 2023 has been marked for identification.
I note the plaintiff’s submissions have been prepared with the assistance of the artificial intelligence platform of Chat GPT. The plaintiff vouched for the accuracy of his submissions, however, stated that this platform assisted in their organisational structure and added a flourish to his submissions.
The plaintiff’s circumstances
The plaintiff is currently 43 years old and was born on 27 June 1980 in Syria. He immigrated to Australia in 1985 with his family and was granted Australian citizenship on 11 March 1988.
In relation to the plaintiff’s personal circumstances, the second defendant has placed significant weight upon two particular matters:
(a)the plaintiff’s pre-existing psychological issues; and
(b)a number of stressors that the plaintiff has experienced, prior to and after the accident.
The second defendant’s ultimate submission is that the plaintiff has bipolar disorder which is causally independent of any injury suffered in the accident, largely accounting for his difficulties. Further, the second defendant submits that the plaintiff has experienced a number of stressors after the accident which have caused the severity of his mental health issues.
Accordingly, the plaintiff’s personal circumstances assumed some importance in this trial.
For some years prior to the accident, the plaintiff had been treated by his general practitioner, Dr Yelland, for anxiety and stress.
Professor Whiteford helpfully summarised the plaintiff’s medical records in his report dated 30 January 2019:
“I reviewed Mr Youssef’s medical records from his general practice, where he is treated by Dr Stephen Yelland. The consultations commence with a consultation on 3 July 1999. At a consultation on 22 January 2003 there is reference to his brother having suicided two years earlier and Mr Youssef “having anxiety tests … concerned something wrong with his chest.” He was referred to respiratory physician, Dr McKeon, and the general practitioner seeing him at the time, Dr Peter Norris, has made reference to the possible need for antidepressant medication or psychological counselling.
On 31 January 2003, the comment is “will see a psychologist at uni”. On 3 March 2003 there is reference to his brother being in hospital with bipolar disorder. Mr Youssef had not seen the psychologist but was prescribed the anti-anxiety/antidepressant medication, sertraline (Zoloft) and the anti-anxiety medication, diazepam (Valium). It is unclear if that treatment was continued.
On 10 January 2006, there is reference to Mr Youssef being involved in a motorbike accident seven weeks earlier, sustaining multiple abrasions, especially to his knees and a painful right wrist. There is no reference to him having sustained a head injury.
On 16 April 2007 there is reference to “stressors – recently divorced … doesn’t like supply teaching.” There is reference to him possibly having irritable bowel syndrome or a peptic ulcer. On 23 April 2007 the entry is “panic episodes”. On 6 June 2007 Mr Youssef was “stressed by new relationship and relief teaching”. He was considered to have anxiety impacting on his sexual function. He was prescribed Viagra (sildenafil).
On 14 July 2009 there is reference to “a few anxious episodes a week”. Dr Yelland considered these may be panic attacks.
On 12 March 2013 there is reference to “custody case over child from former partner Paula … has another girlfriend who is pregnant”. He was prescribed the anti-anxiety medication, diazepam (Valium), at that consultation. On 17 September 2013 he was referred to the “Your Psychology” practice under a GP Mental Health Care Plan. He was continuing to be prescribed diazepam (Valium) at that time. I do not have a copy of this GP Mental Health Care Plan.
On 28 October 2014 he was “smoking cigarettes and pot”. He was also referred to urologist, Dr Peter Heathcote. In his correspondence to Dr Stephen Yelland on 19 November 2014, Dr Heathcote notes Mr Youssef was assessed in relation to problems with his penis (paraphimosis and a tight frenulum). Dr Heathcote recommended surgery (a frenuloplasty) but Mr Youssef “was not convinced … started becoming verbose and almost agitated during the consultation and suggested that I wasn’t the right man for the job to which I have agreed”.”
Relevantly, prior to the accident, the plaintiff had been subjected to a number of stressors in his life including lack of access to his sons, and domestic violence issues. Professor Whiteford noted that the plaintiff was in a relationship with a woman between 2007 and 2011 and their son was born in 2011. As of January 2019, the plaintiff had not seen his son since 2014.
The plaintiff told Professor Whiteford that he was then in a relationship with the mother of his other two sons from 2012 until May 2016. Relevantly, the plaintiff told Professor Whiteford that at the time of the accident, he was actively trying to secure access to see his younger two sons:
“Access had been prevented by a “fake DVO” taken out by their mother. Mr Youssef said he was “working hard to get them back till the accident”. Mr Youssef said his inability to be able to pursue access after the accident was another stressor for him. Mr Youssef described a further stressor arising from this after he posted photos of the children on his Facebook page. He said these photos were seen by their mother and action was brought against him for “breaching the DVO”.”
After the accident, in March 2017, he was considered by a psychiatrist, Dr Lucas Murphy, to be psychotic in the manic phase of a bipolar disorder. From 18 April 2017 to 25 April 2017, the plaintiff was an involuntary inpatient at the Prince Charles Hospital. A diagnosis of situation crisis, mixed narcissistic and paranoid personality traits and a previous mixed affective state was noted. He was prescribed antipsychotic medication.
He was readmitted to the Prince Charles Hospital from 12 May 2018 to 16 May 2018 with diagnoses “suggestive of post-concussive syndrome, possible bipolar disorder and cluster B personality traits”.
After the accident, the plaintiff experienced a number of stressors, arising from:
(a)domestic violence difficulties;
(b)relationship difficulties;
(c)the loss of his teaching position;
(d)his time in Syria;
(e)his time in the United States of America; and
(f)a subsequent motor vehicle accident.
The plaintiff’s ongoing issues with relationships are reflected in his criminal history which spans from 1998 to 2019, thus predating and postdating the accident.
The majority of the plaintiff’s criminal history is constituted by charges of breaching domestic violence orders, including:
(a)on 19 March 2012, he was sentenced to a $200 recognisance with a good behaviour period of six months for breach of a domestic violence order, although no conviction was recorded;
(b)on 22 October 2012, he was fined $200 and a conviction was recorded for breach of a domestic violence order;
(c)on 16 July 2013, he was fined $500 and a conviction was recorded for contravention of a domestic violence order;
(d)on 17 December 2015, he was sentenced to a $5,000 recognisance with a good behaviour period for two years and convictions recorded for two charges of contravention of release conditions and three charges of contravention of a domestic violence order;
(e)on 15 November 2016, the recognisance was forfeited as he was fined $1,000 and a conviction recorded for two charges of contravention of a domestic violence order;
(f)on 25 May 2017, he was fined $330 and a conviction was recorded for contravention of a domestic violence order (aggravated offence). This offence occurred on 20 November 2016, one month before the accident;
(g)on 22 September 2017, he was sentenced to two months’ imprisonment to be suspended for 15 months for a breach of bail condition;
(h)on 22 October 2018, he was sentenced to two months’ imprisonment to be suspended for 12 months for one count of contravention of a domestic violence order (aggravated offence); and
(i)on 25 March 2019, he was sentenced to one month imprisonment for two counts of contravention of a domestic violence order. This offence breached the suspended sentence imposed on 22 October 2018 and this suspended sentence was extended.
I note that the plaintiff stated in his evidence at the trial that he does not acknowledge that he has a criminal history:
“You don’t acknowledge that you have a criminal history?---No, I don’t, no. No, I’m not a criminal, I’m a doctor. I’m an educator.”
The plaintiff seems to link his criminal history with his Syrian nationality and emphasised in his evidence that from 2012, he suffered stress from his relationship problems and Syrian nationality:
“All of the offences that are listed in the QPS court briefs relate to domestic violence breaches that you have carried out at the time?--- Allegedly, yes. That’s all alleged. That’s right.
All alleged?---By the – by Caitlyn [indistinct] yes. And this is to do with my Syrian nationality, okay? It’s to do---
It’s to do with your Syrian nationality?---You bet it is, yeah, and all the false media that this girl was listening to on the television. Man, you’ve got no idea what I’ve been through in the last 10 years in Australia since the – because the false Western media reporting – me being Syrian, people don’t understand whether I’m a good person or a bad person, being from Syria. They don’t know if I’m an ISIS or if I support the government, if I’m a good person. They don’t know.
And that’s been a significant stressor for you---?---Yes.
---ever since you’ve been in Australia, hasn’t it?---No, no, no, no. Only from 2012.
Only from 2012?---Since the false Western media’s reporting in Australia.
So you had four and a-half years leading up to that, to the accident in December of 2016, of significant stressors because of your Syrian heritage?---No, it started – it started in 2013, because 2012, my son was born – 2011, my son Sebastian was born. In 2012 I started court application with the Family Court to get access to him, Sebastian. Then I met Caitlyn in the same year. She gave me two subsequent children the two following years after. These – both women colluded with each other. I had a lot of problems. I was teaching, doing a PhD. I finished my PhD while this terrorism was being levelled against me by these Australian women, using the police against me with malicious DVO. They’d say, “He” – but then they’d come back and live with me after. It’s crazy. They’d come to my house. They’d come to my house, these women. I didn’t go anywhere. I was always at home. They’d come to my house and terrorise me at my house, and they caused me all this problem. Where’s my defence? Where’s – who’s – you know, I’m Syrian. Who’s going to respect me in Australia? No one.”
The plaintiff stated that, because of the accident, he posted regularly on Facebook in relation to issues about Syria:
“And you publish regularly on Facebook with respect to issues about Syria ---?---Sorry, say again?
---and Assad. You publish regularly and have done for a long period of time with respect---?---Since the accident. Since the accident. If it wasn’t for the accident, I would never have developed this identity on Facebook. I can confirm that. It’s just – it’s in the absence of my career and then the accidents and what happened and all that. So Facebook developed from that.
And so when we go through the – your affidavit material, that sets out comprehensively your sense of being attacked by the Australian Government and people because of your Syrian heritage?---You bet, yeah. It’s – it’s – it’s going to snow – it’s going to increase. I’m going to increase. This is going to – the sound of this is going to increase. This noise that I’m – is going to increase, I can guarantee you, in the next one or two years. I’ll be on the news. You know, so, look, there’s a lot of injustice for people like myself being – having been here in Australia. You know, prior to the accident and, of course, since the accident as well – since the accident, you know, I haven’t been able to help myself, get justice for my children, for myself. I’ve been distracted. I’ve been taken – 1 believe – there was – there was an operation from America, and it had to do with the helicopters over my house. There were heli – this is fact. This is why Dr Murphy couldn’t understand me. He couldn’t understand me, but there was a – it’s a fact, a helicopter came over my house.
Did you think that they were counterterrorism---?---They are. Listen to me. I know counterterrorism. I’m acquainted with them. I meet with them regularly.”
The Queensland Fixated Threat Assessment Centre was involved in July 2017 after the plaintiff posted a video of a Syrian child beheading an adult. He was placed in the Pine Rivers watchhouse on 16 July 2017.
The plaintiff’s cousin was in the Syrian army and was killed by ISIS in Syria in 2016. The plaintiff stated that in 2016, Australian planes bombed Syrian soldiers which worsened his emotional distress.
The plaintiff then went to Syria in July 2017 where he experienced dangerous and stressful conditions. He explained what occurred in Syria in one of his many documents produced to the court:
“However, my head injury changed everything. It significantly reduced my inhibitions, and I took an impulsive decision to travel to Syria, a dangerous place for an Australian citizen with Syrian roots. While in Syria, I had several close encounters with death, including a grenade mortar that landed close to my sleeping quarters, and a soldier who threatened to place me in front lines against ISIS.
Moreover, upon arrival, I was drugged by a family member, stripped of my clothes, and informed that female cousins were eager to marry me for the sole purpose of leaving Syria. I disapproved of this, and I believe this was the reason for the attack.
All in all, my experience in Syria as traumatizing, and I consider myself fortunate to have made it out alive after three months. Despite the presence of three remaining aunties, two uncles and three cousins, I have no intention of returning to Syria.”
In 2020, the plaintiff went to the United States of America where he again experienced a number of stressful events, including that he:
(a)was lured over there to go into a relationship with a woman;
(b)had a child with that woman but was denied access to that child;
(c)was imprisoned for a short period of time; and
(d)was kept over there for two and a half years because of the COVID-19 pandemic.
He explained the circumstances of his time in the United States of America to Dr Lovell:
“I asked Mr Youssef why there had been a gap of almost 6½ years[4] between assessments. He explained that he had only just returned from the United States on 27 August 2022. He indicated that because he had been prolific writing on matters pertaining to Syria on Facebook and through his media platform he connected with an American woman named Nadine.
[4]During cross-examination, Dr Lovell clarified that the reference to 6½ years in his report was an error and that it was only 4½ years between assessments.
With the QSuper payment he received he paid for her ticket to come to Australia and they returned to the United States.
He stated that she ‘took complete control of his life against his will’. He had a child with Nadine. Hosea born on 15 June 2021, as Nadine wanted a Syrian baby.
He considered that he was tricked and deceived.
When he attempted to leave the United States on 31 March 2020, he explained that she alleged false domestic violence charges and he was jailed in Oklahoma for three weeks and his passport taken and withheld until June 2021.
For a period of this time he was homeless.
He stated that he had no formal psychiatric treatment in the United States but was prescribed hydralazine for anxiety.
He stated that the charges were initially dismissed. His passport was returned to him.
He explained that Nadine with whom he was involved was the daughter of a former judge and that her uncle was an attorney and that the sheriffs ‘vaped in the cars and were corrupt’. Over this time he stated that his credit cards were burnt, his passport was stolen and that he was denied access to Hosea.
His lawyer paid for him to return and he came back to the country.
A disability support pension which was awarded in 2019 was reinstated in September 2022. He receives this payment together with some financial support from his father.”
Upon his return, the plaintiff learnt that his father had signed over the family home to his younger brother and the plaintiff told Dr Lovell that his brother robbed him of his inheritance.
The plaintiff was involved with another accident when, on 13 September 2022, he was driving his father’s car and an unlicensed driver struck him from the rear. Impact was at a speed of 40 km/hour and both vehicles were written off. The other driver was unlicensed and left the scene. The plaintiff told Dr Lovell, that in addition to his earlier complaints, he now had stiffness, pain, and reduced range of movement.
The plaintiff told Dr Dickinson that he had whiplash and aggravation of his psychiatric injuries from this subsequent vehicle accident and that he had six weeks of physiotherapy funded by the insurance company.
Academic qualifications and relevant employment history
The plaintiff is highly qualified university graduate[5] with his education culminating in a Doctor of Philosophy from the Queensland University of Technology in March 2014. The plaintiff stated that to move into academia, which he wanted to do, he had to publish his academic paper; this occurred 14 days before the accident.
[5]A Bachelor of Education (Secondary) and a Bachelor of Arts (with majors in Psychology and Sociology) from the University of Queensland (6 December 2006).
A Bachelor of Education (Honours) from the University of Queensland (16 July 2008).
A Certificate of Accreditation to Teach Religion (expiry 13 December 2014) from the Australian Catholic University (20 August 2009).
A Master of Arts (Theology) from the Australian Catholic University (29 September 2009).
A Graduate Diploma of Psychology from the Charles Sturt University (13 August 2010).
A confirmation letter from the Australian College of Rural and Remote Medicine (ACRRM) for his contribution as assessor to the John Flynn Placement Program (4 May 2011).
A Doctor of Philosophy from the Queensland University of Technology (14 March 2014).
Prior to the accident, the plaintiff was casually employed as a relief teacher where he taught at over 63 schools on an ad hoc basis, including:
(a)between 22 January 2007 and 27 November 2009, with Dutton Park State School as a general teacher;
(b)between 23 February 2010 and 25 August 2010, with the Brisbane North Institute of TAFE, Department of Education and Training as a teacher and tutor;
(c)between 19 July 2010 and 30 November 2010, with Morningside State School as a general teacher;
(d)between 21 May 2012 and 25 May 2012, with Marsden State School as a general teacher;
(e)between 9 September 2013 and 16 October 2013 with Everton Park State School as a general teacher;
(f)between 10 February 2014 and 4 March 2014 with Woodridge North State School as a general teacher;
(g)between 14 July 2014 and 25 August 2014 with Mitchelton State High School as a general teacher;
(h)between 5 October 2015 and 2 November 2015 with Craigslea State High School as a general teacher; and
(i)between 15 May 2016 and 3 June 2016 with Kelvin Grove State High School as a general teacher.
The plaintiff applied for a teaching qualification under the Education (Queensland College of Teachers) Act 2005 (Qld) on 10 December 2010, having been initially registered on 21 December 2006. The plaintiff’s registration period was 21 December 2010 to 21 December 2015.
The plaintiff brought an application to have his registration renewed on 2 December 2015 for a full five-year period, which was later refused. The plaintiff’s status after 22 December 2015 was “Full-continued” pending assessment of his renewal application.
The plaintiff’s application was considered by the Suitability to Teach Committee (the Suitability Committee) of the Queensland College of Teachers on 11 December 2017.
The Suitability Committee considered the plaintiff’s criminal history and noted that since March 2012, he had been convicted of 11 offences against the Domestic Violence Family Protection Act 2012 (Qld) and one offence against the Criminal CodeAct 1995 (Cth); these offences substantially related to the breaches of domestic violence orders and release conditions.
The Suitability Committee ultimately determined that he was not fit to teach for the following reasons:
“1. Your criminal history indicates that you have been convicted of substantial number of offences since 2012. Your offending is regular and ongoing;
2. The nature and requirements of the DFVPA orders/release conditions which you have contravened have been repeatedly explained to you by police and yet you continue to disregard these orders;
3. You have provided no material suggesting remorse or reflection regarding these offences, nor evidence of any attempts by you to end this pattern of behaviour;
4. Your offending behaviour includes aggressive, intimidating and threatening messages towards your former partner;
5. Your history of repeated offending shows a considerable disregard for the law;
6. Your history of repeated offending and the nature of the offences is contrary to the standard of behaviour expected of a teacher by the community and the profession and shows you unfit to continue to hold registration;
7. You failed to make a full and accurate disclosure of your criminal history in your renewal application.”
The Suitability Committee determined that the following notation be made on the register of teachers regarding any future application by the plaintiff:
“‘1.Any future application for registration by Chadi Youssef to the QCT is to be accompanied by evidence that he has successfully addressed the issues surrounding the repeated criminal offending over the period from 2012 to 2017 and which formed the basis of the QCT’s decision to refuse his renewal application for registration in December 2017.
This evidence should take the form of a report by a treating physician/psychologist/therapist informing the QCT as to the following matters:
a.Remedial action/steps taken by Dr Youssef to address the offending behaviour and to ensure more appropriate ways of dealing with such circumstances in the future;
b.Dr Youssef’s reflections on / insight into the causes, consequences and appropriateness of his behaviour;
c.The likelihood of any further similar behaviour by Dr Youssef in the future.
The cost associated with any such treatment and report is to be borne by Dr Youssef.
2.Given the decision of the STT Committee in December 2017 to find Dr Youssef not suitable to teach was substantially on the basis of his repeated criminal offending over the period from 2012 to 2017, any future assessment of his suitability to teach will take particular account of whether or not he has been convicted of any similar offences since that time.’”
The plaintiff did not respond to the notices from the Queensland College of Teachers and provided the following reason during his evidence:
“You never gave them anything?---No, I haven’t – I haven’t – I’ve not yet responded to this because of my head injury and the accident. This came to me after the accident. I received this – the – my teachers – my teacher registration from Queensland College of Teachers was – I’m not too sure what – I had to give a response to them because it was suspended because of the breaches of the domestic violence orders, the false – the allegations of breaches, the false allegations that were levelled against me to do with contact. So it would involve the mother of my child contacting me by phone, which I then would respond, and she’d use that to the police and say, “Look, he’s contacting me.” So these are the – these are the bases of the breaches, firstly. And that’s what caused Queensland College of Teachers to become concerned about me, and so they – in 2017 they – my understanding is that they suspended my licence until I gave something to them by writing addressing the breach – the domestic violence breaches. So I just haven’t – since 2017, I have not pursued with it. I can do it any time, but I haven’t pursued with it. It can be resolved very easily. My registration can be reinstated very easily. I don’t want it to be. And secondly, I’m not going down this line of work in my life. I’m going to academia, to the university, to lecture; more money; better job. So my teaching, really, career, in 2017, post-accident, I would say really coincided in the accident and the after. I mean, this happened after the accident, so not before, but after the accident I received this information. I just haven’t, you know, bothered to respond back to the Queensland College of Teachers because I’m – firstly, I’m angry – very angry at what’s happened to me, the injustices I’ve experienced; very angry. So this is – I expect it all to be, you know, resolved in its own way in due course. You know, I’m not going to----"
I note that that the plaintiff contends that his application was refused due to his Syrian nationality. However, in an affidavit filed with the Federal Circuit and Family Court, the plaintiff stated that his life took a turn for the worse in 2016 when his ex-partner falsely accused him of domestic violence, resulting in the loss of his teacher registration and severe damage to his reputation and career.
The second defendant contends that the plaintiff’s application was refused on the basis of his criminal history which is consistent with the notation on the register that:
“Any future application for registration by Chadi Youssef to the QCT is to be accompanied by evidence that he has successfully addressed the issues surrounding the repeated criminal offending over the period from 2012 to 2017 and which formed the basis of the QCT’s decision to refuse his renewal application for registration in December 2017…”
On 8 September 2017, the Professional Capacity and Teacher Committee (the Professional Committee) of the Queensland College of Teachers notified the plaintiff that it intended to conduct disciplinary proceedings against him. On 8 February 2018, the Professional Committee determined that the terms of the refusal of the plaintiff’s registration from the Suitability Committee adequately addressed its concerns and decided to take no further action against the plaintiff with respect to the disciplinary proceedings.
The plaintiff cannot presently practice as a teacher as his professional registration was withdrawn and in May 2020, he was given a notice of intention to conduct disciplinary proceedings by the Professional Committee pursuant to section 118 of the Education (Queensland College of Teachers) Act 2005 (Qld).
The facts and circumstances forming the basis of the ground of disciplinary action were the offences of which the plaintiff was convicted in the Brisbane Magistrates Court on 22 October 2018 and 25 March 2019. The plaintiff did not respond to this notice. He says his failure to do so was a result of the accident:
“That’s the stuff with respect to your teacher’s registration?---The – yeah, and the fact that I haven’t been able to get back – you know, resolve it because of the accident, like, my head injury, so I haven’t been able to write back to QCT and explaining simply to them what happened with these alleged breaches and they – they can reinstate my registration. That’s what they said to me that’s all I have to do. I haven’t done it.
Well, you’re hopeful that they – you’re hopeful that they will renew your registration?---No, it’s – it’s what’s written there. Read it properly yourself. Have you read all of the documents.
Thank you?---Clarify yourself. Read them.”
Prior to the accident, the plaintiff also operated a used car business which involved him buying old cars and doing them up in his father’s yard. He had a licence to carry out this business, but he stated that he closed this business down in 2016 in preparation for his career in academia.
The taxation records produced by the plaintiff only deal with the three years prior to the accident and they show that he received minimal income, certainly from teaching pursuits.
Financial year Taxable Income Net Income Employment Income Employment net income per week Net per week 2014 $22,438 Unknown $11,747 $225.90 Unknown 2015 $38,162 $34,212.35 $40,311 $775.21 $657.93 2016 Unknown Unknown $3,178 $61.12 Unknown
Clearly, the plaintiff’s income was low for these three years. The plaintiff stated that this was because he was focussing on his studies and getting his thesis published during this time.
The statement of loss and damage, sworn by the plaintiff, shows the following in relation to his earning as a teacher prior to the accident:
(a)$2,947 for the financial year ended 30 June 2014;
(b)$1,754 for the financial year ended 30 June 2015; and
(c)$3,178 for the period 1 July 2015 to 30 August 2016.
Since the accident, the plaintiff has not worked.
Spinal injury and facial injuries
Immediately after the accident, the plaintiff was taken to hospital. Dr Dickinson, in his 10 August 2018 report, conveniently summarised the plaintiff’s medical records.
Dr Dickinson stated that the hospital file of 22 December 2016 recorded x-rays of the chest and pelvis with no abnormality. There were also CT scans of the face, cervical spine and head, as well as the left shoulder. The left shoulder was normal. The CT scans of the face, neck and head revealed the comminuted nasal fractures, and no cranial pathology or cervical spine fracture was identified.
The plaintiff’s facial injuries were sutured, and he was subsequently discharged.
Medical records
Dr Dickinson provided the following summary:
“The Medical Certificate of 22 February 2017 recorded the injuries as being a fractured nose and lacerations of the nose and chin. Mr Youssef was also recorded to have poor concentration, memory, decision making and motivation with other mental symptoms.
…
The provider treatment plans suggested physiotherapy for the left neck and left sided neck and chest pains.
The GP notes record that Mr Youssef had attended shortly after the accident with his facial and chin lacerations. He had subsequently attended two months later because of neck and scapular pain on the left side. He was referred to physiotherapy.
The clinical notes of Walton Bridge Medical Centre recorded a consultation seven days after the accident (29 December 2016). There was pain over the left scapular region exacerbated by neck movement but not by shoulder movement. There were also facial injuries. His reason for the visit was “neck strain” and also removal of sutures.
Subsequent entries included left neck pain radiating posteriorly to the scapula through until late February 2017. These had improved by late March 2017. There were numbers of psychiatric entries. There were no later entries in relation to orthopaedic aspects of Mr Youssef’s injuries.
There was also a note from the Arana Hills Medical Centre recording dysfunctional strain associated with the left first rib and of C4/5 causing left neck pain and tightness. Dr Michael Yelland reported to Dr Stephen Yelland in the letter of 10 March 2017. There were some manipulative treatment and exercises prescribed.
The referral to Q-Scan reflected potential C8 distribution pain by C6 was also suggested. The pain and tingling was on the ulnar side of the left arm but there was also shoulder pain.
The Ambulance Report form recorded left shoulder pain but not radicular type pain (from an earlier injury 14 April 2011).
The history had been a dislocation of the left shoulder at soccer training “going for a drive” and there had been a previous left shoulder dislocation.”
(Emphasis in original).
Previous x-rays
In terms of earlier radiographs, Dr Dickinson set out the following:
“The only x-rays available for review were the OPG of the jaw dated 27 June 2018. It shows the upper cervical spine which is normal.
X-rays in the Walton Bridge medical file recorded an x-ray of the cervical spine which stated there was moderate degenerative change at C5/6.
There was also a normal x-ray of the thoracic spine and of the left shoulder.
An ultrasound of the left shoulder recorded thickening of the subdeltoid bursa up to 2.5mm in thickness. The ultrasound was otherwise normal.
An MRI scan of the cervical spine (Q-Scan 23 March 2017) reported degenerative changes at C5/6 with left neural foramen narrowing at C6. It was reported that this “would account for a possible left C6 radiculopathy”.
An earlier x-ray at Royal Brisbane and Women’s Hospital (04 February 2010) recorded a left shoulder dislocation. There was also a further dislocation on 14 April 2011.”
The plaintiff’s account of his symptoms
The plaintiff stated that he suffered a cervical spine injury and facial injuries from the accident which he explained in his evidence as follows:
“Does a list of issues help you to say – about what you – what you want to tell the court?---Okay. It’s whether the plaintiff suffered a head injury. Yeah, I suffered a head injury – significant head injury. I don’t understand the extent of it till this day. I’m still – still struggling with it, in identifying these issues. The extent of my injuries. But yeah, I had – I suffered a head injury and that concussive syndrome – post-concussive syndrome. Not too sure what that is. But my head’s – it feels like it’s rattling all the time. Whether the plaintiff suffered a head injury. I’ve got a scar on my chin here, and my face, my nose – broken nose. Yeah, I don’t know.
How long were you in hospital for?---I was in hospital that night and till the next morning. I – I wanted to get back home, and I insisted to the hospital that I – you know, if I can go home. I just want to be home. And they – they let me. They released me and I had to go see my doctor to take the stitches back out of my – the stitches. I saw Dr Yelland. He removed the stitches a week later, after being discharged from hospital. So Dr Yelland removed the stitches about seven days after I was released from the hospital and then I got revision on the scar six months later by Dr Theile. That was traumatic itself. Yeah. Number 2. Yeah, so I had a cervical spine issue [indistinct] when I – when I hit the – I mean, I – I’ve already got some injuries before the accident. I already had a dislocated shoulder from years and years and years before the accident. But I’ve had some issue with my neck and my shoulder and my back. I don’t know what exactly the problem is. Something to do with C6 or C7. But I have some problem with my neck and back, constantly. I have pain and I have problems with that, and I see physio constantly, every week, just to maintain my posture, to maintain body comfort as best I can….”
He also stated in his evidence that it is hard to breathe through his nose. He complained about pain in his lower back which he believes is a secondary result[6] of the December 2016 accident.
[6]This injury was not pleaded by the plaintiff.
In relation to these physical injuries, the plaintiff was examined by three specialists:
(a)Dr Labrom, an orthopaedic spinal surgeon called by the plaintiff, who examined the plaintiff on 5 December 2018;
(b)Dr Todman, a neurologist called by the plaintiff, who examined the plaintiff sometime before April 2019;[7] and,
(c)Dr Dickinson, an orthopaedic surgeon called by the second defendant, who examined the plaintiff on 27 June 2018 and 25 January 2023.
[7]Dr Todman does not state the date of his examination in his reports.
To each of these specialists, the plaintiff explained the pain that he was suffering.
Dr Labrom examined the plaintiff on 5 December 2018. Dr Labrom stated that the plaintiff complained of constant pain in his neck, pain that radiated into the left shoulder, biceps region, lateral elbow on the left side and also pain that radiated into the ulnar border of his forearm and little finger. The plaintiff rated his pain 10/10 where 10/10 was rated as the worst pain imaginable. The plaintiff rated his pain as very severe.
The plaintiff also told Dr Labrom that he had a reduced concentration capacity, reduced sleeping habits, a poor recreational capacity and also headaches which occurred moderately and frequently. He stated that he struggled to read because of neck pain, and he can only lift very light objects.
Dr Labrom commented that the plaintiff can only care for himself at home in a minimal way. He required assistance generally and, as of December 2018, when Dr Labrom examined the plaintiff, the plaintiff rated his pain at very severe. Dr Labrom noted that, at this time, he struggled to do any work and he also struggled to work at a computer.
Dr Todman’s first report is dated 24 April 2019 where he set out what the plaintiff told him about his symptoms and treatment:
“Dr Youssef has continued to suffer from symptoms following this accident. There has been persistent neck pain. The pain is bilateral but worse on the left side and extends to the left shoulder girdle and left upper limb. It averages at least 5/10 but increase up to 9/10 with movements, postures and activities. He gets pain at night with poor sleep.
Headaches were quite frequent at first but now only occur occasionally.
He gets intermittent numbness in the left forearm and hand.
He has had problems with short term memory and concentration. He is very forgetful of details of conversations and day to day events. He forgets names as well as where he has put things. He has trouble organising his thoughts, concentration and with forward planning. There has also been change in mood. He has had secondary anxiety and depression and a psychiatrist has diagnosed bipolar disorder.
For treatment he has had physiotherapy and now has regular massage therapy for his neck. He has taken various analgesics for the pain but is trying to avoid them now. He is on Seroquel as well as a sleeping tablet from his psychiatrist.”
Dr Dickinson was the only doctor who examined the plaintiff twice in relation to his physical injuries; once on 27 June 2018 and subsequently on 25 January 2023.
When the plaintiff saw Dr Dickinson on 27 June 2018, the plaintiff said he had pain in the left side of the neck radiating down towards the left shoulder and also pain in the left shoulder. He said this pain was present all the time, and was not particularly related to any specific injury. He also said he had right leg pain at times.
Dr Dickinson examined him again on 25 January 2023 and the plaintiff stated that he continued to have pain around the back of his neck and across both shoulders. The plaintiff told Dr Dickinson that he “feels lumbar pain which he relates to radiating down from his neck. He said his body feels tight and sore…”.
Dr Theile – plastic surgeon (called by the plaintiff)
Dr Theile is a plastic surgeon and did not provide an expert report at the trial. However, the plaintiff called him as a witness and he gave evidence at the hearing.
Dr Theile thought that the plaintiff’s nasal laceration had significant chance of improvement with revision. Accordingly, the scar that Dr Theile revised was on the plaintiff’s nasal bridge and probably involved between 10 and 12 small stitches.
The plaintiff also had a three-centimetre chin laceration. As Dr Theile did not think there was a great likelihood of improving this laceration with surgery, he did not revise this injury.
Dr Theile could not comment on whether the plaintiff’s injury on his nose could potentially obstruct his airway and cause breathing difficulties. Dr Theile stated there was no formal assessment undertaken of the plaintiff’s nasal bones or nasal airway and therefore he could not make any comment about the likelihood of any nasal airway issues following the plaintiff’s accident.
Dr Labrom – orthopaedic surgeon (called by the plaintiff)
Dr Labrom is a consultant orthopaedic spinal surgeon who examined the plaintiff on 5 December 2018 and set out the following findings in his report:
“Examination confirmed a fellow who complained of neck pain. He had a forward flexion range such that he could forward flex his chin so that it almost touched his chest. He could extend his cervical spine to 5º beyond neutral. He could rotate his head to the right side to 40º though to the left only 30º. He had pain in the left upper limb consistent with pain in the distribution of the C6 dermatome which included the lateral upper arm, biceps and lateral elbow as well as proximal forearm on the radial side. He did complain of some pain along the ulnar border of his forearm into his little finger. He had weakness of his left biceps compared to the right with a power Grade of IV over V (MRC). He did have some muscular wasting of his left biceps which was probably more than related to non-dominance, in my opinion.
This fellow also had some muscular guarding of his posterior spinal musculature. His thoracic and lumbar spine examinations were normal. This fellow denied any alteration to his bladder nor bowel habit. He said that his sexual function had become significantly reduced because of pain.”
Dr Labrom then set out the plaintiff’s injuries which, in his view, were caused by the accident:
“More likely than not, this fellow describes a road traffic accident of significance where the forward ejection of his body over the motorbike handles resulting in compressive load to his neck, face and head would have seen the potential for an acute Injury at the C5/6 level.
Radiological studies from 23 March 2017 confirm the potential of chronicity and degenerate change at the C5/6 level. However, this fellow denies any significant neck pain and particularly any referred left upper limb pain before this road traffic accident.
Therefore, more likely than not, an acute injury has occurred at the C5/6 level which could be seen as an acute discal injury in the context of pre-existent degenerate change at the C5/6 level.
I would suggest that he has ongoing symptoms which are consistent with a C6 nerve root compression which weren’t present before the motorbike accident.
Accordingly, this fellow has ongoing neck pain and radicular pain in the left upper extremity which relate to the road traffic accident 22 December 2016, in my opinion.”
In relation to the plaintiff’s permanent impairment, Dr Labrom concluded that the plaintiff suffered from a 10% impairment of whole person which fairly relates to the accident:
“This person does have a permanent impairment which is measurable. Using the AMA5 and referring to Table 15.5 of the Guides which has the criteria for rating impairment due to cervical spine injury, this person is best defined using a DRE Cervical Category III descriptor. This is a patient with an impairment that is measurable between 10-13%. There is a range which relates to a radiculopathy type presentation and I would suggest that Dr Youssef fits this criteria well.
I would suggest that based upon his examination, burden of care which includes the ongoing use of analgesia, and also the effect that this has upon his working life and domestic and home life, Dr Youssef would be at the upper end of this range. Accordingly, a 12% impairment of whole person would relate and of this 12% I would suggest that 2% impairment of whole person would be fairly related to his pre-existent degenerate change seen at the C5/6 level radiologically which would explain some of his neck stiffness and the like. However, the majority of his impairment calculation, 10% of whole person, would relate fairly to the acute injury to the C5/6 level which has probably resulted in an acute disc prolapse causing compression of the C6 nerve root. This 10% impairment of whole person therefore fairly relates to the motorbike accident, 22 December 2016.”
Dr Labrom stated that the plaintiff’s prognosis is uncertain in relation to his injuries and suggested that his further treatment plan may dictate his prognosis.
Dr Labrom stated that the plaintiff requires further treatment:
“This person requires further medical treatment. I would suggest that he requires careful attention from a spinal surgeon to assess the potential of any benefit that could be received from a steroid injection to the C6 nerve root which could see therapeutic and/or diagnostic benefit. Possibly, a surgical input could be seen in the form of an anterior cervical discectomy and fusion procedure at C5/6. I would suggest that the indication for this surgery would fairly reflect the resection of the acute prolapse of disc and compression of the C6 nerve root and the necessary fusion that would be required would also correlate to this. One could argue that this procedure also somewhat addresses the potential of degenerate change that was pre-existent before 22 December 2016. However, the fact remains, that this person was asymptomatic with regards any left upper limb neuralgia and it seems that the neurological examination in my office fits well with a description of a C6 radiculopathy and a somewhat inexplicable C8 type radiculopathy which refers to the ulnar border of his forearm and little finger symptoms. I do acknowledge respectfully that this differs to other reporting specialists, though I can only offer what was seen and found on the time of examination, the date that I have provided.
Alternatively, Dr Youssef could follow a non-surgical pathway. However, he requires optimisation of his chronic pain management with the potential of better pain analgesia for usage over a longer period of time. This could also be seen suitably with a careful assessment by a pain specialist.”
In Dr Labrom’s view, the injuries suffered by the plaintiff will have an impact upon his future work:
“This person will have an impact upon his capacity to work into the future if his pain is not managed better. Work as an academic educational professional could be still possible though I believe that his treatment requires further clarification with reference to optimisation of his pain management either surgically, or non-surgically.
Dr Youssef is also struggling with regards home and domestic care. Any excessive work in the yard or similar would be difficult to achieve without paid assistance. It appears that he is just coping at home with regards domestic chores and personal hygiene tasks.”
Dr Labrom gave evidence at the hearing and noted that the plaintiff made no complaint of any lower back pain when he was examined.
All three experts had the opportunity to examine an MRI scan of the plaintiff’s cervical spine from 23 March 2017. On this radiological examination, Dr Labrom noted that:
“This fellow has had multiple imaging studies. I have been able to review imaging studies and for convenience have enclosed the relevant images from an MRI scan of this person’s cervical spine from 23 March 2017. It demonstrates clear evidence of a disc prolapse at the C5/6 level with left-sided compression of the C6 nerve root significantly. The axial study of the right hand image concerns significant compression of the exit foramen and it could be that there is a degree of osteophyte formation, though, it is also possible that the disc protrusion component could be related to a more acute injury, particularly in the context of the mechanism of injury described in the form of a severe force through the face and head after an ejection injury on a motorbike on 22 December 2016, in my opinion.
Other features of the radiology study confirm desiccation of other discs though it appears that the C5/6 disc is the most involved with endplate oedema changes seen which does suggest a degree of chronicity.”
Dr Labrom stated that osteophytes are caused by the deposits of calcium over a significant period of time and the presence of osteophytes is not a consequence of the accident.
Dr Labrom agreed with Dr Dickinson’s 13 August 2023 report as to neuroforaminal narrowing, which is when a structure causes narrowing, stricture or stenosis of the exit tunnel where the C6 nerve root, in the plaintiff’s instance, is compromised or compressed in its exit from the spinal cord.
Dr Labrom agreed with Dr Dickinson (and the radiologists) that there is a combination of a bone spur or osteophyte that appears degenerate in nature at the plaintiff’s C5/6 nerve root, which compromises or crowds that canal. Dr Labrom was of the belief that “there is also an acute disc protrusion of soft material that now has further compromised that”. Dr Labrom stated that he and Dr Dickinson appeared to agree that the plaintiff has significant neuroforaminal stenosis.
Dr Labrom noted that between examiners there can be differing examination findings. He stated that he would be surprised, based upon his assessment undertaken in December of 2018, that the plaintiff would have made a complete resolution of his symptoms of C6 radiculopathy in the absence of any treatment.
However, at the hearing, Dr Labrom confirmed in his evidence that nothing raised by Dr Dickinson changed his view in any way.
Dr Todman – neurologist (called by the plaintiff)
Dr Todman is a neurologist who provided two reports and gave evidence at the hearing consistent with these reports. Dr Todman only examined the plaintiff on one occasion which was sometime before 24 April 2019.
Dr Todman’s examination of the plaintiff showed restricted cervical spine movements by 30-40º to the left. He noted that there was tenderness in mid cervical muscles and left trapezius muscles. The plaintiff’s “strength was normal and sensation revealed only slight altered feeling in the left fifth finger”. His left biceps and supinator reflexes were reduced.
Dr Todman’s report stated that the injury to the cervical spine resulted in a left C5-6 disc protrusion and that the plaintiff has a cervical radiculopathy with involvement of the left C6 nerve root. Dr Todman also noted that “there has been ongoing pain and restricted movement which has responded poorly to conservative treatment”.
Dr Todman stated that the plaintiff’s cervical spine injury is from AMA 5, Table 15.5 and is a DRE Category III injury, which is between 10-13% whole person impairment.
Dr Todman estimated a 12% whole person impairment from this injury. He did not agree with Dr Labrom that there was any clinical pre-existing condition. Dr Todman stated that the plaintiff was symptom free and had only the expected age-related changes in his spine apart from this disc protrusion.
Dr Todman stated that the symptoms will continue to affect Dr Youssef in day-to-day activities and employment. In Dr Todman’s opinion, any return to the workplace would be dependent on improvement in all symptoms; both his chronic pain as well as psychological distress with appropriate treatment. This seemed likely in the foreseeable future. In the home environment, Dr Todman noted the plaintiff requires assistance for heavier domestic tasks and home maintenance of up to four hours per week.
In his evidence, Dr Todman stated that the plaintiff would unlikely get back to his high level of work in education:
“Well, I – I think that because, Dr Youssef, you’ve suffered from significant symptoms, which include the pain you’ve experienced from the neck injury, as well as the psychological distress and the reported cognitive symptoms which maybe more likely related to psychological distress rather than a brain injury – all of those amount to a substantial disability and, therefore, I – I would conclude it’s unlikely that you would get back to the previous high-level work in education that you were undertaking.”
With respect to the plaintiff’s cervical injury, Dr Todman agreed with Dr Labrom that a review by a spinal surgeon and consideration of the left C6 nerve root and possible cervical spine surgery would be appropriate. The nerve root block would cost $1,500. Any surgery (which he believed was likely to be required greater than a 50% probability) would cost up to $30,000.
Dr Todman concurred with Dr Labrom’s diagnosis as to the aetiology of the plaintiff’s cervical spine injury.
At the hearing, Dr Todman explained the relevance of the plaintiff’s MRI scan undertaken in 2017:
“Were you able to see the radiology, which I put to you showed pre-existing degeneration in the cervical spine?---Well, the – the MRI of cervical spine shows a left C5-6 disc protrusion. He also has the expected age-related changes in the spine.
Could you just repeat that, Doctor. Sorry, I missed that?---Yes. The MRI scan revealed a left C5-6 disc protrusion, which I think is most likely related to this injury in question. He also has the expected age-related changes through the spine that you would expect…
…
For the purposes of the current hypothesis, if I put to you that scan shows – these show the disc space narrowing with asymmetric disc osteophyte complexes, more on the left than the right. A disc osteophyte complex is a condition that has been present for a long period of time in a degenerate disc because it’s a deposit of calcium in the disc, isn’t it?---Well, there’s two things there. The MRI scan is showing an – an osteophyte, which is like a little bony outgrowth at one level, combined with a disc protrusion. Now, I think, on the balance of probabilities, it’s likely that he’s had some age-related changes, like the osteophytes, and then, on top of that, the injury caused the disc protrusion. That’s what a disc osteophyte complex means.
And what does “asymmetric disc osteophyte complexes” mean to you?---Well, it means it’s more marked on one side than the other.
And that could possibly account for the left C6 radiculopathy, couldn’t it? You need to have an impingement of a nerve root for – to have a radiculopathy?---Correct, yes.
And so that radiculopathy – and just for her Honour’s purposes, that means that there is referred pain in the distribution down from left C6 into the arm, isn’t it?---Well, that’s the symptom. The symptom is pain that travels or is referred into the upper limb, associated with the irritation or compression of the cervical nerve root. And there is also, on the MRI, I put to you, no cause for the left C8 radiculopathy. You would need an impingement – or some impingement upon the nerve to cause radiculopathy, as we spoke about before?---You – you’re talking about another level in the spine other than the C5-6?
Yeah, C8?---Yes. Is that what you’re asking me about? A – yes, there was not such a thing reported in the MRI scan.”
Dr Todman explained at the hearing that as the plaintiff was not a sufferer of neck symptoms prior to the accident, the plaintiff’s symptoms are time-related to this accident rather than just some age-related incidental factor.
In relation to the plaintiff’s lumbar spine pain, Dr Todman believes that there are causes for this pain other than the accident.
Dr Dickinson – orthopaedic surgeon (called by the second defendant)
Dr Dickinson is an orthopaedic surgeon who prepared two reports after examining the plaintiff on two occasions being 27 June 2018 and 25 January 2023. His first report prepared after examining the plaintiff on 27 June 2018 is dated 10 August 2018 (the first report) and his latest report prepared after examining the plaintiff on 25 January 2023 is dated 15 February 2023 (the latest report). Dr Dickinson stated that the plaintiff’s major injuries were facial injuries and he has subsequently had neck, shoulder and occasional lumbar pain.
Dr Dickinson stated that the plaintiff’s injuries have stabilised and reached maximal medical improvement.
In his latest report, Dr Dickinson recorded that the plaintiff told him that he:
(a)has pain around the back of his neck and across both shoulders;
(b)has lumbar pain which he relates to radiation down from his neck; and
(c)his body feels tight and sore.
Dr Dickinson stated that there is no relationship between these symptoms and the accident.
Dr Dickinson set out his clinical findings of the 27 June 2018 examination in his first report:
“He has normal musculature around the neck and shoulder girdle. There is no tenderness of the musculature. He has a full comfortable range of shoulder movement. There is no instability. Power and sensation in the upper limbs are normal.
Mr Youssef moves his neck comfortably through a full range of motion. At times there were withering movements but without pain.
The deep tendon reflexes were brisk and equal.
Mr Youssef had no muscle spasm or guarding in the lumbar spine. There was no tenderness. He was able to flex his spine such that the fingertips reached to the floor. Extension and lateral flexion were normal.
There was no restriction of straight leg raising and there were no neurological signs.”
Dr Dickinson concluded that, as of 27 June 2018, there was no objective finding in relation to the cervical spine, left shoulder, nor any neurological findings. He provided the following summary:
“There is a full range of cervical spinal movement. The movement is comfortable. At times where were withering movements but there was no pain. The shoulders had a normal range of motion and no other significant findings.
There was no sensory loss nor any loss of power. The reflexes were normal and there was no atrophy.”
The second examination occurred, some four and a half years later on 25 January 2023 and Dr Dickinson again set out his clinical findings in relation to this examination in his latest report:
“He demonstrated his neck and arm movements during the course of the consultation.
On formal physical examination, there was no tenderness around the neck or shoulder girdle region. There is prominence of the acromioclavicular joints but no tenderness. He has a full range of shoulder movements.
Mr Youssef has a variable range of neck movement but generally reduced on formal examination, the measured ranges being:
Right
Left
Normal
Flexion
20º
50º
Extension
30º
60º
Lateral flexion
30º
30º
45º
Lateral rotation
70º
70º
80º
There is normal power and sensation in the upper limbs. Mr Youssef described subjective numbness in the left little finger. The deep tendon reflexes are brisk and equal.
He demonstrated a full comfortable range of lumbar movement during which time he “cracked” his back. There was normal power and sensation in the lower limbs with the deep tendon reflexes being brisk and equal. There was subjective numbness in the left little toe.”
In his latest report, Dr Dickinson summarised these clinical findings:
“Mr Youssef has prominence of the acromioclavicular joints but no other abnormality at the shoulder joints.
He has a variable range of neck movement but generally reduced on formal examination. There is a full comfortable range of lumbar spinal movement. There is no neurological finding in the arms or legs other than minor subjective numbness in the left little finger and toe.”
Accordingly, Dr Dickinson found in his latest report that on 25 January 2023 there was a mild restriction of movement of the cervical spine but no restriction of movement in the shoulders. Further, Dr Dickinson found no neurological abnormality other than a minor subjective numbness in the left little finger and left little toe.
In relation to pre-existing conditions, whilst Dr Dickinson referred to the plaintiff’s degenerative change in the cervical spine at C5/6 with uncovertebral disease at C5/6 and narrowing of the left C6 exit foramen, he stated in his latest report that the plaintiff does not have any pre-existing condition which has been aggravated by the injuries sustained in the accident.
The plaintiff was assessed according to the requirements of the American Medical Association Guides and Dr Dickinson stated that he had no specific clinical findings in relation to these assessments. Accordingly, in the presence of symptoms without any clinical findings, Dr Dickinson assessed the plaintiff as a DRE Category I which is a 0% impairment.
In his first report, Dr Dickinson stated that there is “no range of percentages assessed according to the cervical spine scale”. Hence, Dr Dickinson stated that there is a 0% impairment.
In relation to the left shoulder, Dr Dickinson stated there is a full range of motion and no other abnormality. Dr Dickinson stated that the anatomic impairment (i.e., in this case the range of motion) is the basis for this upper extremity impairment and no other impairment applies.
Dr Dickinson stated that the plaintiff appears to have significant other medical issues which are complicating his current medical situation. There is no evidence of any orthopaedic condition of consequence.
Dr Dickinson’s latest report accords with his first report and he maintained his view that the plaintiff has 0% impairment. He noted that whilst the plaintiff has symptoms, there are no significant clinical findings.
Dr Dickinson stated that the plaintiff’s injuries did not affect the plaintiff’s employment other than for the immediate post-injury phase.
Dr Dickinson did not agree with Dr Labrom’s view that the plaintiff had a DRE Category III impairment of the cervical spine:
“The changes on the cervical spine are degenerative change at C5-6. The radicular symptoms that Mr Youssef had described included pain in the C6 dermatome which is not how he presented to me. Dr Labrom also found wasting in the left biceps which he considered more than related to non-dominance.
He also commented on the “inexplicable C8 radiculopathy”. I note on my assessment that Mr Youssef had normal deep tendon reflexes in the upper limbs where the expectation would be that if C6 were involved then the deep tendon reflex would be reduced at the left elbow.
Dr Todman also found a reduced deep tendon reflex at the left sided biceps tendon.
However, such changes are related to the chronic degenerative change and are not related to the effects of injury. As well, Dr Todman noted the inconsistent finding in relation to the left little finger. Mr Youssef in his discussion with me related the left little finger and left little toe symptoms and which are not associated clinical entities.
Of importance is the fact that the contemporaneous records did not reflect an injury to the cervical spine.
There is no other readily ascertainable additional fact which would assist me in reaching a more reliable conclusion than I have.”
At the hearing, Dr Dickinson stated the soft tissue injuries suffered by the plaintiff to his cervical spine and left shoulder were temporary and that they resolved over a period of time. Dr Dickinson stated that there was little evidence of any injury to the plaintiff’s lumbar spine; although, he could have had an injury to the lumbar spine at the time, which would settle.
Dr Dickinson agreed that it was possible to have a head injury without the body suffering any significant trauma.
Head injury and mental health disorder
The plaintiff pleads that he suffered a head injury including post-concussive syndrome. In his evidence he stated that:
“Yeah, I suffered a head injury – significant head injury. I don’t understand the extent of it till this day. I’m still – still struggling with it, in identifying these issues. The extent of my injuries. But yeah, I had – I suffered a head injury and that concussive syndrome – post-concussive syndrome. Not too sure what that is. But my head’s – it feels like it’s rattling all the time. Whether the plaintiff suffered a head injury. I’ve got a scar on my chin here, and my face, my nose – broken nose. Yeah, I don’t know.”
Dr Todman (called by the plaintiff)
Dr Todman in his reports referred to the plaintiff’s head injury and stated that there had been profound psychological distress and a diagnosis of bipolar disorder; the plaintiff also reported difficulties with concentration and short-term memory.
Dr Todman noted that it is possible that the plaintiff sustained a mild traumatic brain injury from a concussion in the accident. However, Dr Todman stated that it was difficult to separate the symptoms that may relate to the accident from his underlying psychiatric distress as well as his chronic pain and sleep disturbance.
Dr Todman’s report dated 11 June 2019 stated that, overall, a post-concussive syndrome or mild traumatic brain injury could not be completely excluded but the weight of evidence pointed more strongly to his psychological distress impacting memory and associated difficulties:
“The results from Ms Jackson were generally in accordance with my assessment. I mentioned in page 4 of my report that it is possible he sustained a mild traumatic brain injury from a concussion in the accident but it is difficult to separate the symptoms that may relate to this underlying psychological distress as well as his chronic pain and sleep disturbance. Based on the further information from Ms Jackson I think that the latter factors, mainly the psychiatric distress with diagnosed Bipolar Disorder associated with his chronic pain and sleep deprivation, would account for the difficulties that he is experiencing with concentration and short-term memory.
As such impairment rating should be under the PIRS criteria rather than AMA5. The Cervical spine injury is rated separately in my earlier report.”
Dr Todman explained in his evidence at the trial that there may be two different elements to the plaintiff’s injury in his opinion; that there was a traumatic brain injury, but that this was difficult to separate from the psychiatric distress.
Dr Todman was of the view that the plaintiff sustained some concussion in the accident. He went on to say that a minor injury could “still lead to continuing or lingering effects of concussion, which makes the separation of psychiatric distress from a residual brain injury difficult in clinical practice”. Dr Todman stated that a neuropsychology assessment is required to further define this.
Dr Todman’s opinion was that the evidence on balance pointed towards psychological distress rather than a post-concussive syndrome.
Dr Todman gave evidence that it is unlikely that the plaintiff would return to the previous high-level work in education he was previously undertaking. This conclusion was based on the physical symptoms reported from the accident, as well as the psychological distress and the reported cognitive symptoms which may be more likely related to psychological distress rather than a brain injury.
Dr Todman clarified that it was for a psychiatrist to decide how much of the psychological distress was pre-existing and how much was triggered by the accident.
He acknowledged that he does not directly have any expertise with respect to the diagnosis of bipolar disorder in his discipline of neurology as such diagnosis is in the discipline of psychiatry.
Professor Whiteford – psychiatrist (called by the plaintiff)
Professor Whiteford is a psychiatrist who examined the plaintiff on 23 January 2019, provided two reports and gave evidence at the trial.
Professor Whiteford’s report dated 30 January 2019 sets out his diagnosis of the plaintiff:
“1.Chadi Youssef meets the American Psychiatric Association’s Diagnostic and Statistical Manual, Fifth Edition (DSM 5) diagnostic criteria for a persistent depressive disorder (dysthymia in DSM IV). There was no evidence of manic symptoms at the time I examined him. Mr Youssef also has cluster B personality traits (which would be long-standing), and it is likely there have been times when, under significant psychological stress, his thought content has included overvalued ideation and paranoid content.
In addition to his depressive disorder and personality traits, there are cognitive difficulties (both described by Mr Youssef and observed on examination). The cause of these is unclear. Determining the extent of any post-concussion syndrome arising from traumatic brain injury in the accident requires assessment by a neurologist and neuropsychologist. Cognitive deficits persisting for over two years from a traumatic brain injury in the accident is unexpected given there was no significant alteration in consciousness (e.g. when assessed by the paramedic at the scene of the accident) and the CT scan at the Royal Brisbane and Women’s Hospital was normal. However post-concussion syndrome in rare cases can persist and the cognitive deficits are much greater than expected from his depressive disorder.
Mr Youssef had anxiety and depressive symptoms that predated the accident. Specifically the records from the Walton Bridge Medical Centre confirm anxiety and depression as early as 2003 with the prescription of pharmacotherapy and recommendation he see a psychologist. Episodes of anxiety are also noted in 2007, 2009 and 2013 (when he was prescribed the anti-anxiety medication, diazepam, and referred to a psychologist under a General Practitioner Mental Health Care Plan).
Despite these pre-existing mental health problems, the history I have is that Mr Youssef was able to achieve highly at an academic level. He was also able, on self-report, to sustain remunerated employment whilst studying his various degrees. This would indicate that his functioning was at a high level despite his mental health problems, prior to the motor vehicle accident.
Since the motor vehicle accident there has been a marked deterioration in his mental health. This would be consistent with an aggravation of his pre-existing mental health problems, specifically the development of a persistent depressive disorder (with his depression prior to the accident episodic). There is also the potential contribution from a post-concussion syndrome, although the extent of this requires further assessment.
2.Mr Youssef’s prognosis in the short term is guarded (given he has not responded to psychiatric treatment since the accident). Determining the longer term prognosis needs clarification as to whether he has deficits from a traumatic brain injury sustained in the accident.”
Professor Whiteford’s report dated 11 June 2019 stated that, in his opinion, it was most likely that there was a component of a chronic post-concussive state (mild neurocognitive disorder) contributing to the plaintiff’s clinical presentation:
“Having regard to the opinions of Dr Todman and Ms Jackson, it is most likely that there is a component of a chronic post concussive state (mild neurocognitive disorder) contributing to My [sic] Youssef’s clinical presentation, and this would help explain the higher level of cognitive impairment present on my assessment than expected from his depressive disorder alone.
In response to the specific question raised in your correspondent of 5 June 2019, I believe the cognitive difficulties present when I examined Mr Youssef arise from a combination of the mild traumatic brain injury and the significant aggravation of his depressive disorder.”
Professor Whiteford gave evidence at the trial concurring with Dr Todman’s view that although a post-concussive syndrome or mild traumatic brain injury could not be completely excluded, the weight of evidence pointed more strongly to the plaintiff’s psychological distress impacting memory and associated difficulties.
The plaintiff initially informed Professor Whiteford that he had no prior psychological difficulties. However, Professor Whiteford gave evidence that the plaintiff’s pre-existing records indicated that he had experienced and been treated for anxiety issues.
On Professor Whiteford’s analysis of the pre-existing material, the plaintiff had been diagnosed by other treating medical practitioners with bipolar disorder.
When Professor Whiteford saw the plaintiff, the plaintiff had depression. Professor Whiteford did not observe the plaintiff to have an elevated mood. As it is necessary to view both depressed and elevated mood to diagnose a person with bipolar disorder, Professor Whiteford was unable to do so. However, he said that in the event the plaintiff did in fact have the elevated mood, a diagnosis of bipolar disorder would be appropriate.
A diagnosis of depression, or of bipolar disorder, would fall under the umbrella of a mood disorder. Professor Whiteford ultimately stated that whether the diagnosis was bipolar disorder or depression would not make a difference to his ultimate conclusion.
Professor’s Whiteford’s evidence was that the plaintiff had been subject to an inordinate number of stressors in his life over a longitudinal period of time, exclusive of the accident.
Professor Whiteford’s evidence was that the following events the plaintiff allegedly experienced would, in his opinion, be “recurrent acute stressors … that would have made the bipolar disorder – if that’s what Mr Youssef has – more unstable”, including being:
(a)imprisoned in the United States of America for three and a half weeks;
(b)unable to leave the United States of America for two and a half years; and
(c)the subject of attempted assault on a number of occasions by his then partner.
Professor Whiteford’s evidence was that there has been an escalation of stressors over time, and this could have a cumulative effect with respect to making a bipolar diagnosis more unstable. Professor Whiteford’s opinion is that the accident exacerbated the plaintiff’s mood disorder. In relation to how these stress events interact, Professor Whiteford said that:
“… each stress acts like another trauma to the person, and their mood becomes more unstable, and [then] it’s harder for the person, and even for their treating [indistinct] clinicians, to then stabilise the mood when that happens.”
However, the cumulative stressors outside the accident were more significant in Professor Whiteford’s opinion.
Dr Lovell – forensic psychiatrist (called by the second defendant)
Dr Lovell is a forensic psychiatrist who prepared two reports dated 26 July 2018 (the first report) and 7 December 2022 (the latest report) and he also gave evidence at the trial consistent with these reports.
Notably, Dr Lovell examined the plaintiff twice; once on 16 July 2018 and subsequently on 28 November 2022. In relation to the plaintiff’s pleaded post-concussive syndrome, Dr Lovell was the only doctor, who gave evidence at the trial, who saw the plaintiff after he returned from Syria and also after he returned from the United States of America.
Accordingly, I place weight upon Dr Lovell’s opinion as by seeing the plaintiff in 2018, and also in 2022, he provided an important longitudinal opportunity to assess the plaintiff over a substantial period of time.
Pursuant to Table 7 of Schedule 7 of the CLR, the amount for an ISV of 12 is $19,770.
In my view, taking into account all of the plaintiff’s multiple injuries, an ISV of 12 is inadequate to reflect the level of adverse impact of these injuries on the plaintiff. Accordingly, there should be an uplift in accordance with Schedule 3, Part 2, regulation 4 of the CLR:
“4 Multiple injuries and maximum dominant ISV inadequate
(1)This section applies if a court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact.
(2)To reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV.
(3)However, the ISV for the multiple injuries—
(a) must not be more than 100; and
Note—
Under section 61(1)(a) of the Act, an ISV is assessed on ascale running from 0 to 100.
(b) should rarely be more than 25% higher than the maximum dominant ISV.
(4)If the increase is more than 25% of the maximum dominant ISV, the court must give detailed written reasons for the increase.
(5)In this section—
maximum dominant ISV, in relation to multiple injuries, means the maximum ISV in the range for the dominant injury of the multiple injuries.”
In my view, there should be a 25% uplift to reflect the level of adverse impact caused by the plaintiff’s multiple injuries, including his cervical spine injury, his facial injuries and the aggravation of his mental health issues.
In relation to his facial injuries, the plaintiff fractured his nose and suffered a laceration to his chin. I note that Dr Lovell recorded in his latest report that the plaintiff was distressed by the unsightly scar on his nose and he subsequently underwent a scar revision performed by Dr Theile.
I accept that, for a period of time, the accident exacerbated the plaintiff’s pre-existing mental condition. I note that the plaintiff was admitted as an involuntary patient at the Prince Charles Hospital in April 2017 where he was prescribed antipsychotic medication.
As Professor Whiteford stated, the accident was one stressor amongst many and its contribution at the time was significant. However, that contribution lessened over time and has been replaced by multiple other stressors not related to the accident.
The facial injuries and the aggravation of the plaintiff’s mental health issues each by themselves had a detrimental effect on the plaintiff. However, the cumulative effect of these injuries justifies a 25% uplift from the maximum.
A 25% uplift of an ISV of 12 results in an ISV of 15.
Pursuant to Table 7 of Schedule 7 of the CLR an ISV of 15 is $25,800.
Accordingly, general damages should be awarded at $25,800.
Past economic loss
The plaintiff’s statement of claim sets out the past economic loss as:
“10.(c) for past economic loss the sum of $139,286.00 being the ongoing loss of $1,000.00 net per week for a period of 139.286 weeks since 23 January 2017 to current date. The plaintiff has lost this income as a result of his:
(i)inability to obtain and maintain employment as a lecturer at a secondary learning institute or university as a result of the injuries and psychiatric sequelae and the impediment which they have on the plaintiff’s working capacity;
(ii)inability to exercise his earning capacity using his multiple degrees including a Bachelor of Education majoring in psychology, a Graduate Diploma of Psychology, a Masters of Theology and a PhD in Education due to the injuries and psychiatric sequelae;
(iii)likely earnings as a teacher or lecturer at a learning institute but for the injuries received in the accident…”
Economic loss is set out at s 54 of the CLA as follows:
“54 Damages for loss of earnings
(1)In making an award of damages for loss of earnings, including in a dependency claim, the maximum award a court may make is for an amount equal to the limit fixed by subsection (2).
(2)The limit is an amount equal to the present value of 3 times average weekly earnings per week for each week of the period of loss of earnings…”
Further, s 55 of the CLA provides:
“55 When earnings can not be precisely calculated
(1)This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.
(2)The court may only award damages 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.
(3)If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award…”
The plaintiff submits that his economic loss should be calculated based on the income he could reasonably have expected to earn had the accident not occurred. He states:
“The potential earnings in his emerging academic career, given his qualifications and trajectory at the time of the accident, exceed the taxable income reflected in prior years, which were not indicative of his post-PhD earning capacity.”
The plaintiff states that the loss he suffered encompasses both established and prospective earnings, substantially exceeding the taxable income from previous tax records. The plaintiff’s assessment of past (and future) economic loss is based on an annual salary of $120,000; a figure he says is justified by his academic achievements and the quality of his publication.
In relation to assessing loss, in Graham v Baker,[12] Dixon CJ, Kitto and Taylor JJ noted:
“... an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.”[13]
[12](1961) 106 CLR 340.
[13]Graham v Baker (1961) 106 CLR 340 at 347.
That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission:[14]
“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute ahead [sic] of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that ‘the diminution of ... earning capacity is or may be productive of financial loss.’”
[14](1995) 182 CLR 1 at 3.
In Nichols v Curtis,[15] Fraser JA observed, in relation to a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury:
“[13] The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that that [sic] she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.
[14] Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity had been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.”
(Citations omitted.)
[15][2010] QCA 303.
Damages for economic loss are to be awarded for loss of earning capacity. The plaintiff has to prove, on the balance of probabilities, that his earning capacity has been diminished because of the injuries he suffered.[16]
[16]Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 at [51] (per White JA).
Sutton v Hunter & Anor[17] sets out the approach to be taken with respect to the calculation of economic loss and assessment of general damages as follows:
[17](2022) 102 MVR 343.
“[111] In Paul v Rendell (1981) 34 ALR 569 at 571 (Paul), Lord Diplock said:
“The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.”
[112]As explained by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638 at 643; 92 ALR 545 at 548 (Malec) in reaching a view as to hypothetical future events, a court is required to assess the degree of probability that an event might occur or might have occurred and adjust the award of damages to reflect the degree of probability.
[113]Where the court is required to engage in the double art of prophesying and adjust damages depending upon the degree of probability that an event might or might not occur or have occurred, both the prophecy and the probability adjustment are based on the evidence as accepted by the Court. As the primary judge observed at [57], the assessment is relatively easy for a plaintiff who is a stable wage-earner over many years and has suffered a total loss of work capacity or even a partial loss of work capacity. The assessment of loss for those persons who suffer business losses is notoriously far more difficult. Similarly, where a person, who has not been in receipt of remuneration from employment or business activities for a period of a decade is injured, the art of prophesying and probability adjustment is difficult. In such circumstances, a trial judge ought to be afforded considerable leeway in the trial judge’s determination of that prophecy of hypothetical future events and probability adjustment.”
(Citation omitted).
At the time of the accident, the plaintiff had six university degrees including his doctorate which he gained in 2014. Two weeks prior to the accident he got his thesis published by the University of Wisconsin, which, the plaintiff submits, is the necessary step in finding employment teaching at a university.
At this point in time the plaintiff had big plans as to his future:
“I would have been an established academic lecturer in the school of education, running a successful educational consultancy business and considering launching a registered training organisation as a CEO.”
However, he stated in his evidence that due to this accident he has lost seven years of work:
“I’ve lost seven years of work. I’m not able to enter – enter back into academia either, which is tragic for me spending 14 years – four years at QUT completing completing a PhD in record time. That’s what the reports say. I finished confirmation within four months of my PhD. Four months, I finished confirmation. Most people take one year to finish confirmation. So I was on a mission to conduct philo – to do research. I mean, I – I don’t – the topic’s gone out of my head. I can’t remember the topic much, but I – my – the worst part is I get depressed because every day when I look on the internet, I see my work is still being cited every – every year by academics around the world, so my work – my published paper, I’m – from the 8th of December twenty – 2016, I published my paper from my thesis two years earlier in 2014. My paper was published 2016, 8 December, published at the University of Viterbo, Wisconsin and that paper took me two years to sub – two years to publish – to prepare in order to become a lecturer. So this is all evidence. I have all this evidence here, you know, with emails from my university prof – so that’s – that’s – you know, it’s traumatised me. Seven years away from this field and work, not being able to contribute in any way, yet seeing my own work still being cited and not having – it’s – it’s – I don’t know how to deal with that – face that. Yeah [indistinct] number 10. The future economic loss. So the – what happened to my abilities before the accident was committed 15 hours a day to research – doing a lot of work – but now I can’t – I – that’s all gone. I can’t do it any more. I don’t know. I don’t even know if I can enter academia again in the future. Future economic loss. So I was expecting to be paid about $120,000 a year beginning 2017.”
The plaintiff submits that the injuries sustained, and the consequent medical assessments by Dr Labrom and Dr Todman suggest, a significant and ongoing impact on his ability to perform the duties required of an academic professional. This, he submits, aligns with the nature of his work, which demands a high level of cognitive functioning, focus, and physical capability for research, teaching, and publication activities.
The plaintiff submits that academic positions, especially those contingent upon recent publications and scholarly contributions, often materialise in a non-linear fashion. He states that the accident’s timing effectively stripped him of the opportunity to capitalise on his academic standing. In his written submissions he states that:
“The academic world operates within cycles of hiring, often not publicly disclosed until contracts are finalized. Dr. Youssef's impending employment was disrupted by the accident, an assertion supported by the timing of his published work and the academic calendar.”
There is evidence that the plaintiff had done doing teaching work with the Department of Education, Training and Employment. However, the court cannot act in an evidentiary vacuum to assume that this would have correlated to him being employed by some university as a lecturer.
There is no evidence that the publishing of the paper by the University of Wisconsin would have then meant that there was a real job with real income for the plaintiff to embrace. The plaintiff at one time stated that he had an offer of employment to teach at universities:
“I applied at University of Princeton, Harvard, schools in Malaysia and Australia and – and I already had a job lined up at QUT with my professor. Her name was Dr – Professor Marilyn Campbell. She was my PhD supervisor from 2010 to 2014 and I had a job lined up. I had hope of many positions coming for me.”
However, ultimately the plaintiff accepted that he did not receive any written offer of employment:
“Well, how many universities in Australia offered you employment?---Any university. I could have taught in any university I wanted to.
I know you could have taught. So what universities in Queensland gave you a written offer of employment?---I didn’t receive a written offer of employment.”
The plaintiff contends essentially for a loss of the chance, but there is no evidence as to the extent to which that chance existed, or whether or not as a result of causally independent factors he truly would have been employable.
There is certainly no evidence of any offer of a job at a university or as a teacher that the plaintiff could not take up due to his injuries. Neither is there any evidence of what an academic may earn.
In this case, the plaintiff’s historical earnings provide no guidance as to what he might have done, what he was capable of doing, or what opportunity has been lost to him.
The plaintiff states that his teacher registration withdrawal and the inability to resume his career in teaching are directly tied to the psychological impact of the accident, which compromised his ability to address these challenges effectively. He states that the withdrawal of his teaching registration post-accident is a direct consequence of the exacerbated psychological state following the accident. This cascading effect, he states, has unfairly derailed his career, an outcome that would not have occurred but for the accident.
However, the evidence does not support these submissions linking the loss of his teaching registration to the accident.
In December 2017, his teacher’s registration was not renewed. The plaintiff states this was due to the accident. However, it was not. It was due to his criminal history which began in 2012 which the Suitability Committee characterised as regular and ongoing. The majority of the plaintiff’s offending considered by the Suitability Committee pre-dated the accident.
Since the accident, the plaintiff has not earned any income.
In the three years prior to the accident, the plaintiff did very little teaching. The plaintiff states he has been casual teaching since 2007 and he rejected offers of full-time employment because it paid less than a casual teaching position and it did not give him the flexibility he required for further study.
The other income the plaintiff was earning seems to have been from buying damaged motor vehicles, repairing them at his father’s property and on-selling them. At the time of the accident, the plaintiff did not renew his car business licence and states that, prior to his paper being published, he was moving away from the car business and preparing himself for academia.
The second defendant states that the plaintiff’s pre-existing psychological difficulties, the difficulties with his pre-existing criminal history and the disregard to orders placed upon him by the court system would have mitigated against him being an attractive candidate for some tertiary institution or university to be a lecturer. I accept this.
I accept that there is no evidence, in accordance with the statutory structure of the CLA, that there was an opportunity for the plaintiff to be a lecturer that has been lost to him solely because of the injuries sustained in the motor vehicle accident.
The highest the evidence comes to is that he started with employment with the Department of Education, Training and Employment on 22 January 2007 and he last worked on 3 June 2016.
The only significant income seems to have been from a used car business he was running or perhaps a bursary.
The second defendant submits there was in fact no lecturing job for the plaintiff to go to. However, the second defendant accepts that some small global assessment is appropriate to be set at $20,000.
The second defendant acknowledged that such a sum was difficult to quantify. In essence, it was calculated by using the plaintiff’s highest taxable income recorded from the three years prior to the accident which was $657.93 per week (net). This was then multiplied to take into account the amount of time from the date of the accident to July 2017 which was when the plaintiff went to Syria. The second defendant states that this is when other stressors took over the plaintiff’s mental state.
There is evidence in relation to the lacerations to the plaintiff’s nose and face and the soft tissue injury to his cervical spine and to a lesser extent his shoulder.
Dr Todman, further, within his report of 24 April 2019 remarked that “any return to the workplace would be dependent on improvement in all symptoms both his chronic pain as well as psychological distress with appropriate treatment”.
Dr Labrom confirmed that the plaintiff would be able to work as an academic educational professional though there may be some impact if his pain is not managed better.
Dr Dickinson stated the injury to the plaintiff’s cervical spine and shoulder were temporary and would have resolved over time.
In relation to past economic loss (and indeed future economic loss), Dr Dickinson’s opinion is preferred over Dr Labrom and Dr Todman and the evidence from the plaintiff generally.
Dr Dickinson had the benefit of examining the plaintiff on two occasions with the most recent examination occurring on 25 January 2023. Dr Labrom and Dr Todman each only examined the plaintiff on one occasion, some time ago in 2018 and 2019, respectively.
Dr Dickinson set out the results of his examination of the plaintiff on 25 January 2023 in his recent report and concluded by stating that there was no physical finding related to the injury.
This is the most up to date examination of the plaintiff and I place significant weight upon these findings.
The evidence during cross examination of both Dr Labrom and Dr Todman confirmed difficulties with the osteophyte and degenerative conditions with respect to the plaintiff’s cervical spine. Further, I note that both of these doctors did not take into account a subsequent motor vehicle accident which occurred on 13 September 2022 where the plaintiff sustained a whiplash injury to his cervical spine.
Dr Dickinson’s findings within his report confirmed that radiology demonstrated degenerative changes at the C5-6 level which were described as “the likely cause of current left sided, neck, shoulder and upper limb pain.”
I prefer Dr Dickinson’s opinion as to the relationship between the accident and the plaintiff’s symptoms. In my view, his reasons as set out in his report are persuasive:
“I do not agree with Dr Labrom’s opinion of a DRE Category III impairment of the cervical spine.
The changes on the cervical spine are degenerative change at C5-6. The radicular symptoms that Mr Youssef had described included pain in the C6 dermatome which is not how he presented to me. Dr Labrom also found wasting in the left biceps which he considered more than related to non-dominance.
He also commented on the “inexplicable C8 radiculopathy”. I note on my assessment that Mr Youssef had normal deep tendon reflexes in the upper limbs where the expectation would be that if C6 were involved then the deep tendon reflex would be reduced at the left elbow.
Dr Todman also found a reduced deep tendon reflex at the left sided biceps tendon.
However, such changes are related to the chronic degenerative change and are not related to the effects of injury. As well, Dr Todman noted the inconsistent finding in relation to the left little finger. Mr Youssef in his discussion with me related the left little finger and left little toe symptoms and which are not associated clinical entities.
Of important is the fact that the contemporaneous records did not reflect an injury to the cervical spine.”
I place great weight upon the fact that the contemporaneous notes at the time of the accident did not reflect an injury to the cervical spine and also the plaintiff’s medical records note chronic degenerative change in the plaintiff prior to the accident. I also place weight upon the advantage that Dr Dickinson possessed in this matter by examining the plaintiff twice; with the last examination being the most contemporaneous.
In my view, other than for a brief period of time immediately following the accident, the soft tissue injury to the plaintiff’s cervical spine cannot sound an allowance for economic loss.
Dr Dickinson’s evidence in relation to the aetiology, and requirement for further treatment, of the cervical spine injury is preferred given his up-to-date examination of the plaintiff.
In relation to the plaintiff’s mental health issues, the medical evidence is that prior to the accident, he had an underlying anxiety condition or mood disorder.
In accordance with the medical evidence, I accept that there may have been some incapacity for a period of time as a result of the accident, but then other stressors took over which now cause his present mental condition.
It is difficult to draw a line in the sand when that occurred. However, a year after the accident, in my view, other stressors took over. By that time, the plaintiff had been to Syria and experienced distressing circumstances.
The plaintiff went to Syria eight months after the accident. His cousin had died, and he went to be with his grieving family who were there. He states that if it were not for the accident and his head injury he would never have gone to Syria as his inhibitions were significantly altered as a result of the injury. Notably, he never told any doctors that he went to Syria due to his inhibitions being significantly altered. This failure was because he says that there were so many things he could not express in the short time he had with them. I do not accept this explanation from the plaintiff.
Notably, it was not just one doctor he failed to tell. The plaintiff visited multiple doctors and he failed to tell any of these doctors this explanation for going to Syria. In my view, this was not due to having a short time with these doctors. Especially, since he saw Dr Lovell on more than one occasion; the first occasion after he returned from Syria and then once again after returning from the United States of America.
Once the plaintiff got to Syria, he was subjected to significant stressors. He then returned to Australia and in 2020 he went to the United States of America where he was subjected to more stressors which aggravated his mental health.
I accept Dr Lovell’s opinion that the plaintiff had a pre-existing mental disorder which may have been transiently aggravated by the accident.
However, in my view, the accident effect subsided a year after the accident. By this time, the plaintiff had returned from Syria and other more significant psychological stressors impacted upon him.
In my view, any aggravation of his underlying psychological condition (whatever his diagnosis) caused by the accident dissipated about a year after the accident.
There is no evidence that at the date of the accident there was a job for the plaintiff to go to. Therefore, there is no opportunity lost. It was the other stressors that were the cause of the psychological problems preventing employment, not the accident.
I accept that the appropriate way to assess his past financial loss is as how the second defendant approached this issue. However, I differ in one respect.
The second defendant submits an award up to when the plaintiff went to Syria is appropriate. In my view, this sum should be calculated from a year after the time of the accident (up to the end of 2017) which includes the time in Syria.
After a year, the stressors of what occurred in Syria and his relationship issues as reflected by his criminal history are the more significant psychological stressors impacting upon him. Further, in December 2017, he was informed by the Suitability Committee that he was no longer suitable to teach and any further registration had to address the issues surrounding his repeated criminal offending.
Accordingly, I award a global sum of $40,000 which is calculated by considering his taxable income in 2015 where the plaintiff earnt just under this. In my view, but for the accident he could have earned around this amount of money, for example, by returning to working with cars.
Interest on past economic loss
The 10-year Treasury bond rate at the beginning of the quarter was 3.999%. However, interest on past economic loss is calculated pursuant to s 60 of the CLA.[18] Accordingly, interest on $40,000 at half the bond rate for a period of 7.23 years from the date of the accident (22 December 2016) to the date of judgment amounts to $5,782.56.
[18]The formula is A = am/100 x p x 0.5
where—
A is the amount of the award of interest.
a is a percentage rate decided by the court subject to the limit fixed in subsection (2).
m is the aggregate of the past loss.
p is the period over which the medical expenses have been incurred (expressed in years).
Past loss of superannuation
Superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth) (the Superannuation Guarantee Act) applies to any proven economic loss. Section 56 of the CLA provides:
“(1)The maximum amount of damages that may be awarded to an employee for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this part) for the deprivation or impairment of the earning capacity on which the entitlement to the contributions is based.
(2)The relevant percentage is the percentage of earnings that is the minimum percentage required by a written law to be paid on the employee’s behalf as employer superannuation contributions.”
I note that the plaintiff earnt his highest income in the preceding three years to the accident in his car restoration business. The Superannuation Guarantee Act states that if a person is self-employed then they are not entitled to superannuation. However, the evidence is that the plaintiff had shut down his car restoration business in preparation for entering academia. I am prepared to accept that the plaintiff would have been earning an income in an area (for example, by working with cars), other than being self-employed, for a year after the accident.
Section 56 of the CLA sets out the method for calculating superannuation. The plaintiff has pleaded the appropriate rate is 9.5%. However, the second defendant has allowed 9.71% for the plaintiff’s past loss of superannuation as an average of the employer superannuation contribution each year since the accident. In my view, 9.71% is appropriate. The plaintiff’s past loss of income has been calculated to amount to an average of $3,884.
Future economic loss
Future economic loss is pleaded by the plaintiff in the statement of claim:
“10.(d) for future economic loss the sum of $671,415.00 being an ongoing loss of $1,000.00 net per week for a period of 27½ years on the 5% tables discounted by 15% for contingencies and vicissitudes. This sum is calculated taking into account:
(i)inability to obtain and maintain employment as a lecturer at a secondary learning institute or university as a result of the injuries and psychiatric sequelae and the impediment which they have on the plaintiff’s working capacity;
(ii)inability to exercise his earning capacity using his multiple degrees including a Bachelor of Education majoring in psychology, a Graduate Diploma of Psychology, a Masters of Theology and a PhD in Education due to the injuries and psychiatric sequelae;
(iii)likely earnings as a teacher or lecturer at a learning institute but for the injuries received in the accident;
(iv)the plaintiff’s current age of 39½ years and the remaining 27½ years of his working life;
(v)awards in comparable cases…”
The plaintiff submits that for future economic losses, considering his expected retirement age and current age, a further 24 years of economic loss at the same annual rate must be considered. This amounts to an additional $2,880,000 in future economic losses, absent the accident.
I am not satisfied that there is any evidence to support this claim, or indeed any award for future economic loss.
The plaintiff’s historical earnings provide no guidance as to what he might have done or what he was capable of doing or what opportunity has been lost to him.
In relation to future economic loss, the plaintiff states that the evidence provided by Dr Labrom and Dr Todman underscores the impact of his spinal injuries on his capacity for work.
As I have already stated, in all of the circumstances, I prefer the evidence of Dr Dickinson. In particular, the results of his more contemporaneous examination of the plaintiff in January 2023 and his view that there was no physical finding related to the plaintiff’s injuries.
Dr Dickinson confirmed that the plaintiff’s injuries did not have any effect on his employment other than for an immediate post-injury phase.
In my view, the plaintiff’s evidence has not established any entitlement for any future economic loss leading from any allegation regarding difficulties with his physical injuries.
I note that the plaintiff stated in his evidence that his ambitions and prospects regarding employment were significantly altered as a result of his head injury, compelling him, in his evidence, to venture to Syria.
As I have already set out, the plaintiff’s present mental health issues are not attributable to the accident.
I accept the medical evidence that, at the time of the accident, the plaintiff suffered a mood disorder. The accident did not cause this mood disorder.
I note Dr Todman’s evidence that overall, a post-concussive syndrome or mild traumatic brain injury could not be completely excluded. However, the weight of the evidence points more strongly to the plaintiff’s psychological distress impacting memory and associated difficulties.
As Professor Whiteford states, the accident was one stressor amongst many. Whilst its contribution at the time was significant, the stressors from the accident lessened over time and were replaced by multiple other stressors. These post-accident stressors have, in aggregate, been much more significant and caused a severe deterioration in the plaintiff’s condition. Presently, the stressors that the plaintiff has experienced, which are much more proximal, are the ones maintaining the severity of his problems.
Dr Lovell states that whilst the accident transiently aggravated the plaintiff’s pre-existing mental disorder, the accident effect has subsided, and other subsequent more significant psychosocial stressors have now impacted the plaintiff.
In my view, there is no future economic loss that is attributable to the accident.
Past special damages
Past special damages are claimed in the amount of $7,128.35 calculated as follows:
(a)Medicare charge - $2,483.35;
(b)pharmaceutical expenses - $2,145;
(c)medical expenses - $1,500; and
(d)travel expenses - $1,000.
The plaintiff submits that he has incurred significant costs in relation to physiotherapy.
The second defendant notes that apart from the Medicare charge, there has been no documentary evidence confirming such sums. However, the second defendant does not take issue with this and allows $5,000 for past special damages. I agree with this approach and accordingly, allow $5,000 for past special damages.
Future special damages
The plaintiff asserts significant amounts for future special damages, including future physiotherapy.
The most recent examination of the plaintiff was by Dr Dickinson in January 2023. Dr Todman and Dr Labrom’s examinations of the plaintiff occurred some time ago in 2019 and 2018, respectively.
As I have already stated, I place great weight on this most recent examination of Dr Dickinson.
After examining the plaintiff in January 2023, Dr Dickinson reported in his latest report that:
“No other specialist opinions or investigations are required in relation to the physical aspects of this injury… No treatment will be required in the future… There is no secondary condition that will development as a result of injury sustained in this accident.”
In my view, Dr Dickinson’s evidence in relation to the aetiology and requirement for further treatment of the cervical spine is preferred given his up-to-date examination of the plaintiff. That is, the plaintiff does not require any future medical treatment in relation to any alleged injury to the cervical spine.
However, in my view, some small global component for future special damages at $5,000 covering surgical revision of the scar is appropriate.
Accordingly, the plaintiff’s damages are as follows:
Head of Damage
Amount
General Damages
$25,800
Past Economic Loss
$40,000
Interest on Past Economic Loss
$5,782.56
Past Loss of Superannuation
$3,884
Future Economic Loss
$0
Future Loss of Superannuation
$0
Past Special Damages
$5,000
Future Special Damages/Medical Treatment
$5,000
TOTAL:
$85,466.56
I find judgment for the plaintiff against the second defendant for $85,466.56.
I will give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. I encourage the parties to agree on an order for costs.
However, if this cannot occur, the parties should, within 14 days, provide written submissions and advise the court accordingly.
If it is appropriate, I will then deal with the question of costs on the papers, unless either party requests a hearing. In order to facilitate that process, I will adjourn the question of costs to a date to be fixed.
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