DISTRICT COURT OF QUEENSLAND

CITATION:	Goodfellow v Clarke [2015] QDC 193	
PARTIES:	MICHAEL LEONARD GOODFELLOW
(Plaintiff)
v
BRENDAN MYLES CLARKE
(First Defendant)
and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(Second Defendant)
and
JEFFREY DAVID JOHNSON
(Third Defendant)
and
AAI LIMITED
(Fourth Defendant)
	
FILE NO/S:	38 of 2014	
DIVISION:	Civil	
PROCEEDING:	Trial	
ORIGINATING COURT:	District Court at Rockhampton	
DELIVERED ON:	3 July 2015 ex tempore	
DELIVERED AT:	Rockhampton	
HEARING DATE:	29 and 30 June 2015	
JUDGE:	Burnett DCJ	
ORDER:	1.	  Judgment for the plaintiff in the amount of $48,000.00;  and
2.	  subject to any application made within 14 days for any other order, the defendants pay the plaintiff’s costs of and incidental to the application, including reserved costs, to be assessed on the standard basis.  	
CATCHWORDS:	DAMAGES – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Loss of earnings and earning capacity – Legal principles.
DAMAGES – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – 	
	Civil Liability Act 2003 (Qld), ss 61, 62.
Civil Liability Regulation 2003, schedule 3, schedule 4.
Workers Compensation and Rehabilitation Act 2003 (Qld), s 571B.	
	Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
Medlin v State Government Insurance Commission (1995) 182 CLR 1	
COUNSEL:	S. Deaves for the plaintiff
T. Arnold for the defendants	
SOLICITORS:	Chris Trevor & Associates for the plaintiff
McInnes Wilson Lawyers for the defendants	

		

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE BURNETT

No 38 of 2014

MICHAEL LEONARD GOODFELLOW	Plaintiff

and

BRENDAN MYLES CLARKE and OTHERS	Defendants

ROCKHAMPTON

12.01 PM, FRIDAY, 3 JULY 2015

JUDGMENT

HIS HONOUR:   On the 2nd of November 2011, the plaintiff was a passenger in a motor vehicle driven by his brother upon the Bruce Highway near Calliope and that vehicle was involved in an incident caused by and including others.  He was wearing a seatbelt at the time, which restrained him in his vehicle as it came to a halt following its collision with an engine block which dislodged from another vehicle following its collision with a third vehicle.  The plaintiff was injured in the accident and now claims damages.  Liability is admitted, but quantum is not.

General damages  

The plaintiff did not say what he recalled of the events at the time of and immediately following the accident.  He stated that after the accident, presumably while disposal of the damaged vehicle was being addressed, he commenced to experience “getting tingles down (his) left-hand side arm”.  An ambulance was in attendance, so he elected to go with it to the Gladstone Hospital.  He sat the outpatients department for a few hours but was not seen by anyone, therefore he decided to leave the hospital and subsequently presented to his GP two days later.  The accident happened on a Friday afternoon, so the earliest appointment he could get was the following Monday.  On presentation to his general practitioner, he is reported as noting to the doctor that he had pain and tenderness on the left side of the neck and that he had moderately restricted flexion and was seen to have moderately restricted flexion to the left.  

The GP initially prescribed X-rays and painkillers.  X-rays undertaken at that time revealed, following his complaint of a whiplash injury and of pain and stiffness in the left side of his neck and trapezius muscle areas, that there was no evidence of degenerative change or no evidence of “significant degenerative change.  No vertebrale body fracture or anomalies.  No focal lytic or sclerotic bone lesion.  Cervical vertebral alignment is satisfactory.  Cervical canal appears adequate.  The cervical pre-vertebral soft tissues are unremarkable.  No cervical ribs.”  Upon representation, the plaintiff’s GP told him to take Panadol in order to manage the pain.  There were no further visits by the plaintiff to his GP following that presentation because the plaintiff did not consider his GP could assist him further.  

Concerning the X-rays, the report from the radiologist was referred to and reported upon Dr Cook, an orthopaedic surgeon.  Dr Cook concluded from the X-ray report that the plaintiff suffered no significant degenerative change, no vertebral body fracture or anomaly, no local lytic or sclerotic bone lesion and that the cervical vertebral alignment was satisfactory.  He concluded the report referred to the cervical canal appearing adequate and the cervical pre-vertebral soft tissues as unremarkable with no cervical ribs.  Subsequent X-rays were taken on the 4th of March 2013 and they were referred to by Dr Fraser as showing no abnormality.  It follows that the X-rays both immediately following and about 16 months after the accident appeared normal.  

In addition, an MRI scan was undertaken for the purpose of assessing the extent of injury for litigation purposes.  The report from the radiologist following the MRI simply identified “straightening of the cervical spine.  There is no crush fracture.  
Preserved in alignment C1 – C2.  I could not see any major facial offset.  Very minor disc bulge, C3/4, not resulting in any significant neural compression.  I could not see any major disc herniation.  There is no compression of the cervical cord.  No changes of myelopathy.  No compression of the existing nerve route.  Pre-spinal soft tissues are normal.  No large hematoma apparent.  The radiologist concluded that there was no bone – no major bone injury or any malalignment seen in the cervical spine.  Very minor disc bulge C3-4 is not resulting in any significant neural compression.  There is no compression of the cervical cord or any existing nerve route.  No change of myelopathy apparent at this stage.”

Dr Cook too reviewed that material and concluded, having regard to those matters, that the films showed no loss of normal cervical lordosis, but that it was mostly attributable to muscle spasm being present at the time that the scan was performed.  He noted that the vertebral bodies appear to be intact throughout the whole extent of the cervical spine from the base of the skull to T4 and that the intervertebral disc spaces are all preserved throughout with only mild desiccation at the C3-4 intervertebral disc, whereas all the rest have normal hydration on a T2 weighted sequence.  The spinal canal and intervertebral form to him appeared to be clear.  

Dr Fraser made no comment, except to note that the MRI was “within the bounds of normality”.  However, his cross-examination of him revealed there were some unusual features concerning this MRI.  When asked about the evident minor bulging, Dr Fraser accepted that there was evident a very minor disc bulge at the C3-4 level.  He was asked whether the contour was normal, to which he observed it had a minor contour to it.  He initially concluded that the evidence of the bulge was not abnormal.  However, when asked these questions, these responses were forthcoming.

Yeah.  Doctor, would you accept that degeneration in the cervical spine is usually more generalised than involving a single disc?‑‑‑Yes, it is.

And usually the bulging found in normal degeneration is at a different level than C3-4.  It is normally C5, 6 and 7, and so that is a more common site for degeneration to appear?‑‑‑Yes. 

Indeed – and so for there to be a bulge at C3/4, if a bulge – if it is a bulge, do you accept that the bulge could have been caused by the trauma of a motor vehicle collision?‑‑‑Possibly.  I don’t accept that it was, but possibly

Thank you, Doctor.  What percentage of men in their early 20s would have a degenerative chance in their cervical spine?‑‑‑Virtually none.

While Dr Fraser opined that the bulge was not related to the accident, he accepted it was possible.  He also accepted the circumstances were unusual in the sense of they being out of the ordinary.  Dr Cook also noted muscle spasm preset at the time of the MRI.  That symptom is consistent with a muscular ligamentous injury of the kind complained of and the degeneration which itself was isolated and unusual for a man 
of the plaintiff’s age.  No other cause or trauma was indicated.  For reasons I explore later, the basis for the presence of this degeneration is important.  The defendant contends that the evidence of Dr Cook, at its highest, is that the degeneration described by Dr Cook at C4-5 is only possibly caused by the motor vehicle accident.  

The basis for its submission was the cross-examination of Dr Cook in respect of a passage on page 6 of his report, exhibit 10, where he stated “(There) has been more than sufficient time for this very early desiccation to relate to injury to the C3-4 to the C3-4 intervertebral disc rather than it being age-related.”  Under cross-examination concerning that statement at T1 bar 47 from line 40, the following was evinced:

?‑‑‑…I’m describing the MRI scan of the spine.  I’m saying that the very mild desiccation could well be the result of injury and not age-related degeneration.

But only possibly?‑‑‑Well, what that is trying to refer to is that it’s a possibility that it’s age-related degeneration, but a probability that it is post-traumatic.

--

All you’re saying there is that it’s a possibility or the fact that the lapse of time between the accident and the MRI makes it a possibility.  You just can’t tell, can you?‑‑‑No.  Not with certainty.  That’s why I used that word.

The exchange does lend doubt to the plaintiff’s contention that Dr Cook did ascribe the degeneration to the motor vehicle accident.  The fact that the degeneration was described as “post-traumatic” does not prove its origin.  That is the difficulty.  However, that is not the end of it.  He submits that when the whole of the medical evidence is considered – that is the evidence of both Dr Cook and Dr Fraser – the court can be satisfied that the degeneration has its origin in the accident.  Respectfully, I agree.  I have earlier addressed matters which were stated by Dr Fraser, particularly the fact that it is unusual for a person of the plaintiff’s age to have evidence of degenerative change of the spine.  The fact that more commonly, when degeneration is evident, it appears at C5, 6 and 7 rather than as reported at C3/4, and finally, that disc degeneration was confined to a specific area and generally is consistent with that diagnosis.  

I’m satisfied that the degeneration at the C3-4 level was caused by the accident when considered with those factors together with the evidence of no pain, no evidence of prior relevant trauma, evidence of it existing post-trauma and Dr Cook’s infelicitous language directed to that point.  Thus, on balance, I find that the collision caused the condition noted in the MRI.  The differences between the specialist doctors were otherwise at the margin.  In summary, they agree there was no pre-existing condition to be considered, that the plaintiff suffered a soft tissue injury to the cervical spine.  It was described by Dr Cook as a muscular ligamentous injury, a diagnosis which appears unchallenged.  The plaintiff continued to complain of symptoms nearly two years after the injury 
and the plaintiff’s condition had stabilised and his maximum post-injury improvement had been achieved.

Doctors differed on the DRE category assessment, with Dr Fraser opining that it was a DRE category 1, not giving rise to any quantifiable impairment of bodily function and Dr Cook opining that the plaintiff had suffered a three per cent whole of person impairment which placed him between the DRE 1 category and the DRE 2 category.  Dr Cook explained how it could be that his assessment fell between the two categories despite having apparent cut-offs provided for in the schedule.  As he explained in his evidence at T1 – T bar 49 from line 44:

So, with AMA6, they changed the whole structure of the assessment so that if the examiner estimated that someone had a DRE cervical category 1 injury or, well, let’s make it DRE cervical category 2, they felt that there was – they felt that that was not an accurate assessment.  By following certain steps and rules, they could either increase it or decrease it by two per cent whole of person impairment.

Question:  

You said by something per cent?

Answer:

By up to two per cent.

So a DRE cervical category 2, if they felt that that overestimated a person’s assessment, by following certain steps in the guide, they could actually reduce that to three per cent whole of person impairment, or if they felt that it underestimated a person’s assessment, they could actually increase it by two per cent whole of person impairment.  And Dr Fraser wasn’t asked to comment upon this matter, which makes it difficult for the Court.  However, he had a much less flexible view of the application of the principles, noting at T1/11 from line 6:

…persons whose injuries are more serious than what are described in category 1 but may not tick all the boxes required for –

Question:  

Do you accept that there are persons whose injuries are more serious than what is described in category 1 but may not tick all the boxes required for category 2?

Answer:  

Let me think.  No.  I don’t agree with that, because the category 1 injuries are really describing people who have complaints, but there are no other evidence 
of residual injury.  That is radicular symptoms, abnormal clinical signs or radiographic signs.  Whereas those people in category 2 have radiological signs, they may have abnormal objective clinical signs or they may have pain of a radicular nature that is non-verifiable.  So that’s indistinct, too.  I don’t think that there is scope to put anything between those two.

Resolution of this point has some significance because it impacts the appropriate item and injury scale value to be applied to the Plaintiff by operation of schedule 4 of the Civil Liability Regulation 2003.  Sections 61 and 62 of the Civil Liability Act 2003 govern the calculation of general damages.  In the first instance, that involves assessing the appropriate injury scale value under the rules provided under the Civil Liability Regulation.  The rules for assessing ISVs are set out, relevantly for present purposes, in section 6 and schedules 3 and 4 of the Civil Liability Regulation.  Schedule 3 sets out a number of matters the Court is to have regard to in the application of schedule 4, which sets out the range of ISVs for various injuries.  

As explained in section 2 of schedule 3, in assessing the ISV for an injury, it is necessary to consider the range of injury scale value stated in schedule 4 for the particular injury concerned, noting that the range of ISVs reflects the level of adverse impact of the injury on the injured person.  Section 8(2) of schedule 3 provides that in assessing an ISV, the Court must have regard to the provisions set out in schedule 4 (such as examples of injuries, examples of factors affecting ISV assessment and comments about appropriate level of ISV) to the extent they are relevant to a particular case.  But the Court may have regard to other relevant matters also, see section 9.  Under section 10 of schedule 3:

The extent of the whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV.

Sections 11 and 12 contain provisions dealing with the requirements of medical reports, stating the whole person impairment percentages and the greater weight to be given to such an assessment provided under AMA 5 and to one not based on that criteria.  Dr Cook’s assessment of permanent impairment does not have a basis in AMA 5;  so much is self-evident.  Dr Fraser’s statement that category 1 concerns injuries where the patients have complaints but there is no other evidence of residual injury leads to his conclusion;  it is based on the AMA 5.  I note, however, that category 2 cases also involve cases where there are objective clinical signs.  

Dr Cook’s own methodology, earlier noted, as I say, admits of reference to AMA 6, which is another guide, but not one relevant to the Civil Liability Regulations.  However, that itself doesn’t appear to exclude a consideration of the assessed whole person impairment.  Regulation 11 prescribes a requirement for the expression of the basis upon which the percentage is:

…calculated, including if AMA 5 is a basis of the percentage stated, then the AMA criteria supporting the conclusion.  

However, regulation 10 says that in assessing an ISV where a whole person impairment is based upon criteria in competition to AMA 5, then the AMA 5 assessment must be given greater weight.  As I’ve noted, Dr Fraser gave the injury a zero per cent whole of person impairment, because he assessed the injury having a DRE category 1 rating based upon AMA 5.  Dr Cook’s percentage assessment was based upon the AMA 6 assessment criteria.  Because the differences were never explored in evidence, I will not know the basis for the difference.  However, it does seem apparent that, given Dr Cook’s conclusion is based upon the AMA 6, which is different from AMA 5, it must defer to the AMA 5 assessment.  

It follows that while Dr Cook might have satisfied the requirements of regulation 11 by providing a percentage assessment, including by stating his clinical findings and how he calculated the assessment, even if that process did not involve a “calculation” as the term is commonly understood, that whole of person assessment must defer to the whole of person assessment provided by Dr Fraser.  As his assessment of zero per cent was provided under AMA 5, that percentage assessment must take precedence in considering the appropriate ISV.  In any event, I do not think the point is of any significance, despite the parties’ contest on that matter.  Schedule 4 identifies two possible items informing the appropriate ISV in this case;  they are items 88 and 89.  The relevant parts of those items are as follows:

88 Moderate cervical spine injury—soft tissue injury

Comment:   
The injury will cause moderate permanent impairment, for which there is objective evidence, of the cervical spine.

Item 89:

Minor cervical spine injury

Comment:  
•	Injuries within this item include a whiplash injury with no ongoing symptoms, other than symptoms that are merely a nuisance, remaining more than 18 months after the injury is caused. 

•	There will be no objective signs of neurological impairment.

A significant point of distinction between the two levels is the question of objective signs of neurological impairment.  I have addressed that issue earlier.  I am satisfied that there were objective signs of neurological impairment, evidenced by some degenerative change at the C3 – 4 level.  That factor warranted an item 88 assessment, although that said, Dr Cook’s equivocation on his assessment was plainly because he recognised the injury was minor, probably tending to the description provided in the first dot point but also the subject of objective degeneration evident in the MRI.  

Generally, the Plaintiff gave evidence of the impact of the injuries.  They caused discomfort to his neck and headaches.  In the period following the accident, they were more severe and are less so now, although I considered his evidence concerning his current state to be somewhat embellished.  He stated that currently he would experience neck pain three to four times a week and headaches five to six times a week.  Prior to the accident, he didn’t suffer either.  On a pain scale of one to 10, he described the level of pain at five most days, with it falling into the two to seven range.  He said he required analgesics such as Panadol and Nurofen to settle headaches.  

In response to a pre-employment medical examination he undertook in February 2014 – that is, about two years post-accident, he stated that he suffered headaches with an intensity of four out of 10, which lasted for 10 to 15 minutes, which then settled spontaneously without need for medication.  The picture created on that occasion was significantly different to the picture that the Plaintiff painted in his evidence.  Likewise, when he was cross-examined about activities that were posted on his Facebook page – they indicated material related to his jet skiing and motorcycle riding – he sought to minimise his involvement in those activities, and in part maintained his participation was impaired by his disability.  

In respect of the jet skiing, it seems active involvement was conditional upon the jet ski’s availability.  It was owned by his brother and accordingly was only available when he was invited out to play.  That was somewhat contrary to the impression he sought to create, that he had some control over those matters and that the effects of his injury interfered with his enjoyment of that activity.  Photographs of him on his motorcycle suggest that activity, noisy and requiring agility as that activity does, again, was not excluded.  If he had headaches, being consistent with his statement to Dr Sornachalam, the discomfort was temporary, and I’m satisfied did not significantly interfere with his enjoyment of his amenities.  

I accept there was some temporary disruption, but that would’ve passed after a relatively modest period, certainly up to 12 or 18 months, and that beyond that, his situation has now settled to a point where he now occasionally suffers minor neck pain and headaches, which can be treated by analgesics as required, although I note objectively, he does not tend to resort to those medications frequently.  As I say, that reliance is minimal for reasons that I explore later.  The fact that he does not require significant quantities of analgesics reinforces my view that the ongoing effects of his injuries are minimal.  

Having regard to those matters, I consider he is to be assessed as an SLV item 88 injury, and I assess the level on the scale at five.  In reaching that figure, I am particularly mindful of the Plaintiff’s submission that he’s a young man with the early onset of a minor degenerative condition, albeit very slight.  As I’ve noted, it involves a minor desiccation, indicating the very earliest degenerative changes at C3 – 4.  By reference to the table in part 3, injuries from 1 July 2011 to 30 June 2012, I assess his general damages at $6100. 

Past Economic Loss  

At the time of the accident, the Plaintiff was employed by the Calliope Local Authority, which subsequently merged into the Gladstone Local Authority and became the Gladstone Regional Council.  He was employed there for a period of about four years.  He was variously described in his income tax returns as a plant operator, earth mover or general.  Ultimately, he self-described himself as a civil contract trainee.  He described his work at council as machine operating and manual labour.  He stated his employment with council ceased when his traineeship came to an end in February ’14.  He’d been with council by that time for about four years.  

He now has a Certificate III in Civil Construction, which qualifies him to operate some machinery, but otherwise he is a labourer.  He was educated to grade 11, having left school partway through grade 12.  In summary, he’s a man of limited skill and education.  As a consequence of the accident, the Plaintiff did take some time from work.  He took approximately one week’s sick leave after the accident, but no claim is made in respect of that used sick leave.  However, a claim for past economic loss is advanced for the net difference between his notional income (based on a sum of $890 net per week) from the date of separation from the Gladstone Regional Council to the date of trial, less the actual earnings he earned over that period.  

Respectfully, the Plaintiff’s claim for past economic loss premised upon that basis cannot be sustained on the evidence.  The accident happened in November 2011.  The Plaintiff was able to continue in his employment until termination of that employment in February 2014, save for a short period of sick leave which I’ve spoken of, which followed immediately upon the accident.  He did not report any other time off work, through the course of that employment, on account of his injuries, although he said some aspects of his employment did cause him discomfort.  

The Plaintiff did not impress me as a particularly stoical man, and as I noted earlier, generally, I formed a view that he was a person who embellished his evidence where it suited his case to overstate his complaints.  And my finding on this matter was supported by the objective material, particularly evident from his Facebook page and also the observations he made in the presentation to Dr Sornachalam, who I’ll speak of in a moment.  As was evident from his Facebook entries, on 11 December 2012 he was “overworked” and thinking it was time for a new job.  This was despite the fact that he still had about 12 months of his traineeship to go.  I put this down to youth and not the injury.  

The Plaintiff’s general attitude to work was plainly manifest by subsequent Facebook entries on the 5th of July 2013, the 16th of July 2013, the 22nd of September 2013 and the 6th of February 2014, where the plaintiff informed his followers of his sick days, which mostly appear to be preceded by social events, where parties and alcohol are said to have featured strongly.  Each of those sick days was taken while employed by the Gladstone Regional Council.  From his Facebook entries, it appears the Plaintiff’s general attitude to employment was one of indifference although he was generally motivated to work.  He never appears to have reported any of the health concerns associated with his injuries, a matter I’m sure he would’ve had no hesitation in reporting given the other personal material he was happy to disclose via that Facebook medium.  

Likewise, in answer to the Downer EDI medical examination when he presented for a report there, his answers were entirely inconsistent with his reported history as at February 2014, as stated in his evidence.  In that part of the Downer EDI medical examination which I refer to, he was required to check various boxes indicating his medical history.  In respect of the box titled “persistent headaches, or migraine” he ticked no, and in respect of the box “head injury, spinal injury” he ticked no.  It is apparent that the Plaintiff was given some notice that he would not be offered ongoing employment by the Gladstone Regional Council, and therefore set about finding other employment.  

As his Facebook entries disclose, he arranged an employment interview through a friend.  The prospective employer was the WorkPac Group.  The entity conducts a labour hire operation.  The Plaintiff was selected by them for one of its clients, that is Downer EDI, by Ms John, the recruitment coordination team leader for WorkPac in Mackay, who’s also a friend of the Plaintiff’s.  In accordance with their practice, the Plaintiff was directed to an occupational physician for assessment.  It can be reasonably inferred that given the expense associated with a medical assessment, the Plaintiff satisfied all other criteria relevant to the position he was being considered for.  In recording the conversation Dr Sornachalam had with the Plaintiff, the doctor noted the Plaintiff’s then condition as follows:

MVA–2010–minor whiplash.  Admitted for few hours.  No investigations.  Painkillers.
– had X-rays/MRI–2013–bulge C2–C3–has upper neck symptoms
– two to three times/week-pain central lower cervical spine
Agg–when on mobile plant all bumpy terrain.  Intensity 4/10 (temp) 
Lasts for 10 – 15 minutes – settles – 0/10.  No medication required
No restriction of movement.  No restriction of daily activity.
Has been labouring/operating since accident – copes with duties – no aggravation apart from above

Dr Sornachalam concluded his report with the following comment:  he noted that the Plaintiff, at the time of examination, had a full range of movement of his neck to the left, a full range of movement of his neck to the right and was non-tender to cervical spine palpitation.  He concluded, however, that the Plaintiff was at:

…risk of aggravation of neck increased when operating mobile plant on rough, bumpy terrain.

Downer did not offer the Plaintiff a position.  Although no evidence was addressed concerning Downer’s decision, I think it is reasonably open to infer that the Plaintiff was not employed because of the comments by Dr Sornachalam.  Plainly, the accident impacted that employment opportunity.  However, the Plaintiff’s case suffers the evidentiary difficulty of not identifying what that opportunity was.  At its best, Ms Johns stated that Downer would take a contracted employee placed by WorkPac before offering a suitable employee full-time employment.  However, she is not a representative of Downer but merely the representative of a labour hire firm.  She can only speak from her observations in other cases and in respect of employment opportunities in a labour hire capacity offered by WorkPac. 

Generally there was no evidence of what Downer wanted, how long they wanted an employee for, whether the plaintiff fell within its general permanent employment profile and sundry other matters relevant to decisions to employing a person such as the plaintiff in permanent full-time employment.  I have no evidence which permits me to conclude that the lost opportunity was a loss of permanent full-time employment.  

However, in the circumstances I am prepared to accept that WorkPac may have retained the plaintiff for up to three months, being the qualifying period consistent with the practice of Downer EDI.  That opportunity was employment for 50 hours a week plus overtime on Saturdays of 10 hours as required and as requested and accepted by the employee.  

The base rate was $28.67 per hour.  On weekdays the base rate applied to the first 7.6 hours, time and a-half for the next two hours and double time thereafter, that is .4 of an hour on a 10 hour day.  Grossed up, that gives a daily rate of $328.83 per day or $1644.15 per week.  For Saturdays it is agreed that 10 hours was the set rate.  The first two hours were paid at time and a-half and the balance was at double time, giving a Saturday gross rate of $544.73.  In summary, the gross rate of pay for an ordinary five day week was $1644.15 and for an ordinary five hour week plus Saturday, $2188.88.  

Given the plaintiff’s established attitude to pursuing his leisure activities, I don’t think he would have wanted to work every Saturday.  I’m satisfied that he probably would have worked, on average, one in every three Saturdays if the work was available and offered to him.  It follows that over a three month period, that is 12 weeks, I’m satisfied he could possibly have worked four long weekends and eight regular weeks.  He didn’t because of his injury and thus suffered a gross loss which I’m prepared to accept as likely in the circumstances.  That loss totals $21,908.72 which is made up of four weeks times $2188.88 and eight weeks times $1644.15.  

That financial year he was employed by the council until 15 February 2014.  Allow another three months for the lost employment opportunity, would take him to mid-May.  Coincidentally, from that time he was employed by Mackay Concrete Pumping.  Accordingly, his gross income for the financial year ending 30 June 2014 was understated by the $21,908.72, being that opportunity he lost with WorkPac.  His taxable income that year was otherwise $43,863.  It should have been $65,771.  The marginal rate of tax payable on incomes between $37,000 and $80,000 was at the time 32.5 cents per dollar of income.  That is, on earnings of $21,908.72, a sum of $7120.33.  It follows that his after tax loss was $14,788.  Past superannuation of $2026.00 follows.

Concerning loss after that, I am satisfied that he was generally motivated to work.  Plainly, if he wished to maintain his then evident lifestyle including motorcycle riding, jet skiing an partying, he needed an income to support those activities and remunerative employment would be the only basis which would’ve provided sufficient cashflow to sustain such activities.  

However, the true position, I think, concerning his post 30 June 2014 position was reflected in the unemployment and his employment application history.  Before his employment with the Gladstone Regional Council came to an end, he unsuccessfully applied for a number of positions with council.  He also made other efforts to find employment such as using Seek and other social media.  

However, his success in finding employment was only sporadic.  I think it is more probable than not that, given his limited skills, a competitive labour market, his youth, his relative inexperience and a generally declining local economic environment, particularly in the construction sector, are all factors which told against his employment rather than anything to do with his injury.  So much again is consistent with the evidence of Dr Sornachalam whose evidence was that when he assessed the plaintiff in February ’14, he was capable of undertaking his employment.  Likewise, Dr Fraser and Dr Cook saw his injury as not impacting his capacity to work.  

The only factor that might have affected his employment opportunities was the reporting of his injury as he did with Downer EDI.  However, for better or worse the plaintiff clearly wised up to the difficulty that that reporting occasioned following his Downer EDI experience as he said in evidence that in later employment applications he did not report that history, although it was called for.

It follows, I am satisfied, that but for the one instance, his episodes of unemployment following departing from the Gladstone Regional Council reflect other factors such as those that I’ve indicated and not the effect of this injury.  No other past economic loss should be allowed for in my assessment.  

Upon that basis, allowing for my assessment, a further sum of $2026.49 should be allowed in respect of interest on past economic loss, that is, a sum of $14,788 times 0.05 times 43 months over 12.

Future economic loss  

The plaintiff claims a global award on account of future economic loss.  As stated earlier, the medical evidence does not support any finding that the injuries rendered the plaintiff unable to continue with his former employment.  I accept that, generally, he has been motivated to work and will continue to be so motivated.  He may experience some greater discomfort, although I am satisfied that it is limited.  In any event, it has been allowed for in assessing general damages.  However, as the Downer EDI experience demonstrates, the plaintiff will be disadvantaged if he is truthful in these disclosures.  

The Court is placed in a difficult position in respect of this matter because of the plaintiff’s own evidence.  His evidence plainly suggests that he is sufficiently pragmatic as to put matters behind him and when it suits his case.  Arguably, if he adopted that course into the future, he would possibly not suffer any future economic loss at all.  However, if he adopted an approach consistent with making full disclosures, then there may be some disadvantage, although I’m satisfied it would be limited. 

In Medlin v State Government Insurance Commission (1995) 182 CLR 1, McHugh J highlighted that the quantification of claims for loss of future earning capacity is exactly that.  It is not for loss of earnings.  The head is to be intended to compensate a plaintiff for the effect an action has upon his ability to earn income.  Although in this instance, the injury was relatively minor, it has already demonstrated its potential to impact the plaintiff further concerning further earning capacity.  As McMurdo P, with whom Gotterson JA agreed, outlined in Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 at [9] when discussing this issue:

…[a] court should make an award of damages for future economic loss to take into account the general disadvantage [the plaintiff] might suffer on the open labour market…

As with McCarthy, the plaintiff here has a long life ahead of him.  However, he is resourceful.  I recognise I should proceed on the basis that he will do the right thing.  However, my views are tempered by an appreciation of the pragmatism that follows employment in the construction sector and the very limited sanctions provided by s 571B of the Workers Compensation and Rehabilitation Act 2003, which would bear upon him should he not make an appropriate disclosure and then suffer further injury to his neck.

In the circumstances, I will allow a sum of $20,000 on a global basis in respect of this head.  It follows that a sum of $1850 should be allowed in respect of future superannuation.

Special damages

So far as past special damages are concerned, the plaintiff claims for the cost of analgesics and similar medication.  His evidence of his purchasing these items was most unsatisfactory.  Largely, he didn’t.  He was given some occasionally by a work colleague, his co-worker, Mr Dodds.  And also, it was provided within the household.  His co-worker Mr Dodds’ evidence was extremely vague and generally most unhelpful on this point.  He couldn’t state with any particularity how much or how often he provided medication, although in cross-examination, he did provide some evidence about that matter, but respectfully, I thought it was very vague. 

The plaintiff’s mother gave evidence of it being purchased.  However, in summary, the purchase of Panadols and other analgesics was for the household.  She was unable to detail how much of it was procured expressly for the plaintiff.  The plaintiff stated in his evidence that he did purchase painkillers himself, as well as his mother, and that he spent about $10 a packet, which would include about 24 tablets.  I felt his evidence on this matter was quite vague and, consistent with the medical evidence, he would have required them initially, but then, the need for them would have become less frequently and ultimately, as he stated to Dr Sornachalam, by February 2014, he was coping without the need to medicate.

It follows that I allow the plaintiff the sum of $151 claimed.  In addition, the plaintiff claimed for sums of $99.40 for Medicare and a sum payed by LWG of $185, which sums were admitted by the defendant.  A sum of $100 is claimed for travel, which I accept is reasonable, giving a total of $535.40 for special damages.  I allow interest on that at $17.57.  However, having regard to the history of this matter, for reasons I’ve earlier stated, I do not think that there will be any further costs incurred and so I make no allowance for future costs.

In summary, I assess the plaintiff’s damages as follows.  General damages:  $6100.  Past economic loss:  $14,788.  Past superannuation:  $2026.  Interest on past economic loss:  $2650.  Future economic loss:  $20,000.  Future superannuation loss:  $1850.  Special damages:  $535.40.  Interest on special damages:  $17.57.  And future costs: zero, giving a total of $47,966.97, say 48,000.

It follows that my orders will be these:  that there be judgment for the plaintiff against the defendant in the sum of $48,000.  Subject to any application made for any other order, such application being made within 14 days, that the defendant pay the plaintiff’s costs of and incidental to the application, including reserved costs, to be assessed on the standard basis.  There are obviously issues in relation to costs.

MR ARNOLD:   Yes, there are, your Honour.

HIS HONOUR:   [indistinct] application.

MR ARNOLD:   Yes, there are, your Honour.  Yes, thank you, your Honour.  Your Honour, could I just – the – if I could – just the interest on past economic loss ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR ARNOLD:   It – I think it was a figure of some two ‑ ‑ ‑ 

HIS HONOUR:   Two thousand.  I’ll just give you the calculation now.

MR ARNOLD:   Yes, if you could.

HIS HONOUR:   I thought I cited it.  It was one thousand, four hundred and seventy – four hundred – one – sorry – $14,788 times 0.05, which was the agreed rate, times 43 months over 12 months.  Check my arithmetic, if you would, please, gentleman.  If I’ve made any errors, please come back to me and I’ll correct them.

MR ARNOLD:   Yes, thank you, your Honour.

HIS HONOUR:   Okay.

MR DEAVES:   Thank you, your Honour.

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