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
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
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.
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
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
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
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.
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.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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