The plaintiff allegedly sustained personal injuries as a result of a single motor vehicle accident which occurred on 11 June 2004. The parties agreed that her damages ought be reduced by 40%.
At trial, quantum was in issue.
Despite the lack of contemporaneous complaints of pain post-accident, the plaintiff's poor work history and general unreliability as a historian, the court nevertheless awarded a large global component for future economic loss.
Was the neck injury sustained?
The plaintiff alleged she sustained a neck injury, which was contested.
The court heard that the Caboolture Hospital records contained no reference to a neck injury. Further, the plaintiff's GPs also did not record complaints of neck pain in the treatment records. It was also noted the plaintiff did not obtain physiotherapeutic or chiropractic treatment for her neck post-accident.
The only objective evidence in relation to neck pain was recorded by Dr Wallace, the plaintiff's orthopaedic surgeon, who recorded, on examination, there was muscle spasm. Conversely, the defendants orthopaedic surgeon, Dr Fraser, recorded no objective signs of soft tissue injury to the neck. Despite the lack of contemporaneous complaints of neck pain post-accident, the court accepted Dr Wallace's evidence that the plaintiff sustained a soft tissue injury to her neck in the accident.
Defendant's pleading was deficient – prior injuries could not be raised
The court heard the plaintiff (aged 24 years at trial) had previously sustained an injury to her cervical spine at age 13 when she fell off a horse. Later at age 15, she dislocated her tailbone. The defendant submitted these prior injuries were significant.
However, the court rejected this submission on the basis that the issue of the prior injuries was not set out in the notice of intention to defend and defence.
Economic loss
The court heard that the plaintiff had a poor work pre-accident history, had abused alcohol and self-harmed as a result of a bad relationship. The court also noted the plaintiff had no formal post-school qualifications, was not working for a period of some 12-18 months pre-accident and was in receipt of Centrelink benefits.
Following the accident, the plaintiff tried her hand at several jobs including employment at Kilcoy Meatworks for a period of three days, as well as working in five cafés for a total of 142 hours. The plaintiff also obtained some work for a few days at a hydroponics farm. It was revealed at trial the plaintiff did not leave any post-accident employment because of her neck or back-related pain.
Decision
The court rejected the submission that the plaintiff should receive damages for past economic loss expressly on the basis of loss of a chance or by reference to the principles in Malec v JC Hutton Pty Limited. Taking this into account together with the fact that there was no evidence to establish that the plaintiff had left any post-accident employment by reason of her accident-related injuries, there was no award for past economic loss.
On the issue of future economic loss, the court, despite noting the plaintiff had a poor work history and did not leave any post-accident employment by reason of her accident-related injuries, nevertheless awarded a global figure for this head of damage in the sum of $60,000.
After acknowledging the plaintiff had a potential working life ahead of her of 40 years it was found that she would have difficulty performing heavy manual work and process work.
Comment
It goes without saying that a defendant's solicitor should ensure that all matters to be raised in defence of the claim are expressly pleaded in the court documents, so that all relevant evidence may be heard by the court.
This decision is consistent with a trend in Queensland of the courts making increasingly large global awards for future economic loss in personal injury claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.