Martin v. Brown & Anor [2005] QDC 381 (7 December 2005)

Last Updated: 9 December 2005

DISTRICT COURT OF QUEENSLAND

CITATION:	Martin v Brown & Anor [2005] QDC 381
PARTIES:	MARISSA MARTIN (Plaintiff) v ANDREW EDWARD BROWN (First Defendant) & SUNCORP METWAY (Second Defendant)
FILE NO/S:
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	7th December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	1st, 2nd December 2005
JUDGE:	FORDE DCJ
ORDER:	1. Judgement
CATCHWORDS:	Grice v State of Queensland (2005) QCA 272 Rosewarne v Marshall and Suncorp [2004] QSC 283 Walker v Durham (2003) QCA 531
COUNSEL:
SOLICITORS:

Introduction

[1] On 19 December 2001, the plaintiff, Marissa Jade Martin, was travelling in a motor vehicle driven by her employer, Andrew Edward Brown. They were on their way to a Christmas party, when their vehicle was involved in a motor vehicle accident. The said vehicle rolled over and the plaintiff suffered personal injuries. The only issue for determination is quantum.

[2] The plaintiff was born on 30 April 1980. She was employed as a legal secretary. The injuries which the plaintiff alleges that she suffered are as follows^[1]:

(a) Soft issue injury of the cervical spine
(b) Soft tissue injury of the thoraco-lumbar spine;
(c) Tenderness over the lower ribs on both sides;
(d) Shock

Issues for determination

[3] The credibility of the plaintiff has been seriously challenged. The extent to which her evidence is accepted will determine the extent of her disability and moreover the relevant medical evidence. This will impact on general damages, economic loss and the claim for past and future care. The only issue which the parties seem to have agreed upon is the special damages of $1366.40.

Credibility of the plaintiff

[4] After the accident, the plaintiff sought medical treatment. The frequency and nature of the treatment has been conveniently summarised in the written submissions of the plaintiff’s counsel^[2]:

(a)	20.12.2001	City 7-Day Medical Centre -- has back pain, worse with movement aching right trapezius muscle area, down the right scapular region and down the vertebral column - spasms muscles, tender left trap, R.scapular med to 1 paravert muscle thoracic spine - nil spine tenderness. The muscles of the left trapezius over the right scapula and the left paravertebrals were spasming and tender
(b)	21.12.2001	Beenleigh Rd Medical Centre -- pain in neck --- greatly decreased range of cervical movement with pain on the right more than the left. The plaintiff was prescribed Panadeine Forte. Also tender over ribs.
(c)	11.01.2002	Beenleigh Rd Medical Centre -- persisting pain in the lumbar muscles and slightly restricted range of movement. A certificate was given for WorkCover, Panadeine Forte prescribed and a referral was given to see a physio-therapist.
(d)	18.01.2002 to 31.01.2002	The Plaintiff attended the Sunnybank Physiotherapy Centre on five occasions for neck and back pain.
(e)	20.02.2002	Beenleigh Road Medical Centre -- The plaintiff was making progress with neck and back pain and was "about 50% better". She was still getting sore upper lumbar area bilaterally and the left side of the neck often became sore in the afternoon while at work. The plaintiff wanted to try physiotherapy again and a certificate was given for WorkCover.
(f)	09.08.2002	City 7-Day Medical Centre - MCA December - now flare of back pain - requests Panadeine Forte.
(g)	09.08.2002	Brisbane City Physiotherapy – constant stiffness in her neck – headaches every second day predominately in the right frontal/eye region - sharp pain and numb sensation in the thoracic region and a constant ache in the lumbar region. Sitting for greater than one hour aggravates her neck and lumbar region pain and medication (Neurofen/Panadeine Forte to relieve symptoms.
(h)	12.08.2002	Attendance at Brisbane City Physiotherapy
(i)	16.08.2002	Attendance at Brisbane City Physiotherapy
(j)	21.08.2002	Attendance at Brisbane City Physiotherapy
(k)	21.08.2002	City 7-Day Medical Centre - presents requesting more Panadeine Forte. Says getting massive H/A after physiotherapy for neck and back pains. Is seeing physio for flare of symptoms - began after MVA in December 2001. See Dr Cusack as CMO in Sunnybank - seeing him in am. Is taking Nurofen and using heat packs. Speak with physio re modifying treatment to ease H/A. Use Nurofen TDS for 1 week. RX Tramal SR 100 mg for severe pain - discussion re ... chronic pain.
(l)	02.09.2002	Attendance at Brisbane City Physiotherapy
(m)	18.09.2002	Attendance at Brisbane City Physiotherapy
(n)	11.10.2002	Attendance at Brisbane City Physiotherapy
(o)	25.10.2002	Attendance at Brisbane City Physiotherapy -- headaches every second day lasts two weeks -- mostly dull but can be worse in evening. Generally not too bad the first week after here but worse this week. Felt good after last treatment for a couple of days. Feels that physio is helping. Quite sore (L) T3-4 area.
(p)	08.11.2002	Attendance at Brisbane City Physiotherapy
(q)	15.11.2002	Dr Day -- The plaintiff had suffered intermittently severe left sided neck pain and stiffness. She had two headaches a week. The plaintiff had continuing pain in the centre of her back which radiated to the left loin region. She was unable to look easily to her left because of neck stiffness and used pillows to sleep of a night. Her boyfriend did the driving. The Plaintiff was tender to firm palpation on the left side of her neck. She had lost a quarter range of movement of her neck in all directions. Power, deep tendon reflexes and sensation in her arms were within normal limits. The Plaintiff could flex to touch her distal shins and extend her trunk 10º. Straight leg raising is 90º bilaterally. Power, deep tendon reflexes and sensation in her legs were within normal limits. She was tender to firm palpation over the lower lumbar spine.
(r)	28.11.2002	City 7-Day Medical Centre – Requests Panadeine Forte, advised won’t prescribe these for chronic pain. Having physio every second week
(s)	05.12.2002	Attendance at Brisbane City Physiotherapy. Bad for a week after treatment. Then returned to normal. Worse the last week. ? due to overtime. H/A every day for the last week ...
(t)	07.01.2003	Neck was troublesome with persisting stiffness. The plaintiff’s lumbar region had improved to the point where it was sore a couple of times a week. Headaches were experienced every three (3) days which coincided with her neck symptoms. There were no problems with the upper thoracic region with some continued symptoms in the mid-lower thoracic region on the right side.
(u)	07.01.2003	Attendance at Brisbane City Physiotherapy. Neck has been painful. Still troublesome -- stiff -- improved. Sore a couple of times a week. Overall neck has improved a little. Neck exercise 1-2 times a day. H/A every 3 days – when neck playing up. Doesn’t get upper thoracic pain anymore. Mid-l0w thoracic pain on right side --??
(v)	14.01.2003`	Roberta Field gave Plaintiff details on a physical conditioning program at Inergise. This involved a gym programme.
(w)	03.07.2003	Dr Nutting -- The plaintiff had good and bad weeks. She experienced interscapular and neck pain and also pain at waist level. She had a strange feeling in her right leg initially but no numbness, pine and needles or weakness. The plaintiff’s neck was stiff all the time especially on movement to the left. The pain fluctuates and her discomfort is most manifest in the region of the left shoulder blade. Her low back pain was central but can radiate to the left and comes and goes. The plaintiff was performing neck flexion exercises lying on her back and rocking her knees up on to her chest. The Plaintiff held her head very still when performing most movements. There was a repeat of left trapezius discomfort on lateral flexion of the cervical spine to the left. Her movements otherwise were relatively full and symmetrical. Deep reflexes and neurological examination of the upper limbs was normal. Flexion of the lumbar spine was limited by the reporting of discomfort in the neck region. She reported that the whole of the thoraco-lumbar and cervico-thoracic spine was tender as well as L5/S1.
(x)	16.10.2003	City 7-Day Medical Centre -- The plaintiff was finding that Nurofen was getting less effective for back and neck pain. She was using Melsyndel once or twice a day but did not need them daily. The plaintiff was still performing neck strengthening exercises prescribed by the physio and stretching at work. The accident was nearly two (2) years ago and the plaintiff was only feeling 60% since the accident. The plaintiff was to start a supervised programme at the gym with physio, The plaintiff was advised to only use analgesia for flare ups and to start swimming.
(y)	23.03.05 28.03.05 and 23.05.05	Acupuncture
(z)	26.05.05	Hypnosis
(aa)	05.07.05	Axis Physiotherapy -- on examination -- posture poor – avoiding cervical movements, inhibited - cervical active movements 1/3 normal range. Rotation left and right 1/2 normal range. Cervical palpations. Left-sided upper cervical side. Right side lower cervical spine. These areas stiffest. most marked cervical palpations - Treatment -heat -Treatment techniques - all three 2-minute general techniques -Re-assessment - felt looser -Treatment - parasthesia fingers (tingling in fingers) -Re-assessment - better again -Cervical active movements - no great change in neck range of movement -Deep flexors - cervical rotation in lying Plan -Next assessment - NMG (neuro meningal assessment) -general sensory disturbance? (needs to be assessed) -Query candidate for UQ programs (Whiplash Clinic)
(bb)	10.08.2005	Dr Day - Loss of nearly a third range of left lateral rotation in her cervical spine. She had a very stiff upper lumbar spine and could flex to touch her proximal shins. The Plaintiff continued to experience left-sided neck pain and stiffness. About once a month the symptoms became severe. Pain radiates into the shoulder from her neck towards the end of the week and can be a problem about 3 times a week.
(cc)	16.08.2005	Dr Nutting - pain at L4-5 level and below and some discomfort radiating to the right and left - flexion of cervical spine was within 4cm of the sternum. Left trapezius rightness on lateral flexion and lateral rotation. Tightness on extremes of movement, Discomfort in lumbo-sacral spine.
(dd)	19.09.2005; 26.09.2005 and 0.10.2005	Bowen treatment

[5] The primary material referred to in the summary can be found in Exhibit 1. The history shows continuing and consistent symptoms. At first blush, the history supports the plaintiff’s claims relating to the extent of her symptoms. She said that after the accident she was in shock and that she felt numbness to the left side of her upper back^[3]. Consistent with this type of injury, the next morning she had neck and back pain and spasms in the top left and lower back^[4]. She had a lot of pain in the back and neck with stiffness over the next two weeks and sought the assistance of her mother^[5]. When she returned to work the symptoms continued and she had headaches^[6]. The symptoms seem to have continued to date with more serious exacerbation once or month^[7].

[6] The defence have questioned the credibility of the plaintiff on two bases^[8]:

(e) She portrayed herself as injured to the extent that her boyfriend had to drive (sic) her everywhere
(f) She advised Dr Day that she had not been engaged in sport^[9], a statement which might have more limited importance but for a similar subsequent denial to Dr Nutting

[7] Videos were produced^[10] which appear to show the plaintiff running freely during soccer matches and taking part in training drills. As pointed out by Dr Nutting there were no "headers" by anyone during the matches. The plaintiff did say that she did head the ball. The defence say that the plaintiff attempted to bolster her case by intentionally not revealing her involvement in an organised sport. Given that she failed to tell either doctor initially, such an inference is open to be drawn. However, it did not seem to affect Dr Day’s assessment. It does however reflect upon the plaintiffs credit in that she was not candid with the two doctors who were providing reports.

[8] However, before she saw Dr Day, on the second occasion she had provided to her solicitors a statement which revealed her involvement in soccer^[11]. The draft is dated July 2005. In fact, she seems to have provided a statement to the solicitors as early as 16 February 2005^[12] but it is not clear that the soccer was raised then. The defence asserted that the first occasion that she was "caught out" by her involvement in soccer was when Dr Day saw her on 10 August 2005 and knew of her ankle injury whilst playing soccer. Clearly, Exhibits 18 and 19 prove the opposite.

[9] If one accepts that she lacked candour during the first interviews with both doctors, it does not follow that the plaintiff has not suffered significant injuries since the accident. The reasons for so finding are as follows:

a.	The history of her treatment as evidenced by Exhibit 1.
b.	The statement by Dr Nutting who said in evidence (p. ) that the plaintiff was not overstating her symptoms. He had carried out the Wardell test to measure such an overstatement or exaggeration. Dr. Nutting also commented that the level 4 soccer competition was obviously not a high level of soccer, although it is noted that she was one of the better players.[13]
c.	The observations of the plaintiff’s present employer Ms.Kerry MacIlwain. Ms. MacIlwain is a solicitor and has worked with the plaintiff as her administrative assistance since about July 2004. During that time she has made the following observations[14]:
-	the plaintiff is a bubbly personality except when she is obviously suffering pain
-	the plaintiff’s normal hours are 8.30 to 5 but is required to work overtime on occasions
-	the vast majority of her time is spent on word processing.
-	the plaintiff is a very good worker
-	she becomes stiff around the neck area and upper back and has complained of pain from time to time
-	the disability does affect her work and she is less focussed and vague
-	as a sympathetic employer Ms. MacIlwain accommodates the plaintiff and allows her to leave work to seek treatment or take a day or so off from time to time. She does not work late or is forced to leave early at least once per month

[10] Having considered the plaintiff’s evidence and the matters referred to in paragraphs 9(a) to (c), I generally accept the plaintiff as a witness of truth. Her lack of candour initially has become of less importance as time has elapsed. The extensive nature of the ongoing treatment and observations by Ms. MacIlwain and myself allow one to be convinced of her genuineness and reliability as a witness.

Medical Evidence

[11] Prior to the accident, the plaintiff had been treated for depression. As far as this case is concerned it was not relied upon by either side as assisting or adversely affecting the plaintiff’s case. Once can see reasons for the approach adopted by both sides. There was no claim for psychiatric symptoms caused by the accident. It became a neutral issue. There were many other issues in the medical reports which were not explored. One point made by the defence was that the plaintiff attended for treatment to various medical practitioners after the accident and did not complain of neck or back problems. The short answer to that is that she was visiting for other reasons. The other history of treatment for ongoing neck and back problems has been dealt with. Dr Nutting seems to question the level of symptomatology because of this failure to consult about the neck or back on each occasion or seek specialist advice. The fact that no general practitioner referred the plaintiff to a specialist does not mean she was not suffering from some symptoms. The extensive nature of the physiotherapy, acupuncture and exercise regime showed some positive response to her ongoing problems.

[12] The main issue for determination was whether the evidence of Dr Day or that of Dr Nutting be accepted. One aspect of the conflict was whether the plaintiff fell within DRE Cervical Category I or II or DRE Lumbar Spine Category I or II^[15]. The difference is 0% impairment for Category I and 5%-8% for category II. It is not necessary to set out the criteria for each Category except to say that if one accepts Dr Day’s evidence, the plaintiff falls within Category II. Dr Day justified such a finding because of her reduced range of movement. Dr Nutting found^[16] that the plaintiff was only able to bring her chin within 4 cms of the sternum. The plaintiff reported left trapezius tightness on lateral flexion and lateral rotation. He found on examination of the lumbar spine movement that the plaintiff suffered some discomfort in the lumbo sacral region. Dr Nutting did not assess the impairment of the lumbar spine. I accept Dr Day’s view that his findings supported to some extent by Dr Nutting justifies the DRE impairment of in Category II viz. asymmetric loss of range of motion or non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings".^[17]

[13] Even when the plaintiff was playing soccer, Dr Day expressed the view that she showed some lack of movement when turning to the left. She evidenced no such problem turning to the right. This restriction of movement was observed by Ms MacIllwain in the work place over some 17 months. The defence argues that the video evidence points in the opposite direction. If one accepts Dr Day’s evidence that he observed restricted movement of the head to the left then the videos become of less significance. I accept his expertise and evidence in making such observations. Given such difficulties, this would, I find affect her daily living including driving and difficulties at work. It does not prevent her from driving or working. The plaintiff accepted that she had headed the ball. The medical view was that it would be undesirable with such a neck injury. The lengthy videos showed no heading throughout. In some ways it becomes of less significance. The plaintiff found that playing sport lessened her symptoms. The general thrust of the medical evidence was that it was more desirable for the plaintiff to be involved in sport than sitting around and not trying to cope with or treat or problems. In fact, the plaintiff took Nurofen, an anti inflammatory and pain relief medication before each game and used deep heat. There is no evidence that when playing soccer heading the ball in fact aggravated her symptoms in any way.

[14] In accepting the plaintiff as a reliable witness, it is open to find, consistent with Dr Day’s evidence that:

a.	The plaintiff has suffered a permanent impairment of the entire body of 5% as a result of her cervical spine condition.
b.	The plaintiff has suffered a permanent impairment of the entire body of 5% as a result of her thoracolumbar condition.
c.	That the plaintiff is likely to have problems in the future with prolonged periods of typing
d.	She may expect to have an increase in symptoms if she becomes pregnant

[15] As submitted by counsel for the plaintiff, it is legitimate for a trial judge to prefer the evidence of one medical practitioner over another based upon acceptance of the evidence of say the plaintiff: Walker v Durham per Wilson J^[18] with whom the other members of the court agreed.

General Damages

[16] The plaintiff is now 25 years of age. She has suffered a significant set back at such a young age. The ongoing impairment to her neck and back affects her in her daily life and at work. The nature of her employment aggravates this type of impairment on a daily basis because of the plaintiff having to spend such a large amount of her time before a word processor. She is a good worker and has to have time off to accommodate her disability. It also affects her ability to drive from time to time if her neck becomes unduly uncomfortable due to stiffness.

[17] Counsel for the plaintiff has provided an extensive list of cases and has conveniently summarised them in Exhibit A. In the present case, an award of $35,000.00 is justified. Her condition is unlikely to deteriorate but she may suffer greater symptoms if and when she falls pregnant. Interest on the sum of $15,000.00 at 2% for 206 weeks amounts to $1188.00.

Economic Loss

[18] There is no claim for past economic loss. The future economic loss may be calculated as a global sum or on a weekly loss. The defence submit that the current earnings of the plaintiff is $615.00 per week. A 5% impairment of her earning capacity would be excessive. That would approximate to about $22,500.00. The plaintiff’s counsel submits that a lump sum of $60,000.00 would be justified and refers to various cases which are to be found in Exhibit A. The plaintiff has worked for the last four years and has not suffered any loss of income to date. If one accepts that she loses one day per month off work, then this would be a weekly loss of $30.00 per week. This is in accordance with the evidence. She could be expected to work for say thirty years allowing some time off to have children or an early retirement. Using the 5% tables, this would produce a loss of $24,325.00. This assumes that the plaintiff continues to have a sympathetic employer. Her ongoing symptoms may also effect her changes of obtaining employment if an employer knows of her disability. In this day and age of risk management that is a real consideration.

[19] In the cases referred to, there have been instances where notwithstanding no pre-trial economic loss a larger global sum has been awarded as in Rosewarne v Marshall and Suncorp.^[19] In Rosewarne an award of $60,000.00 was made. The plaintiff in that case had to work long hours at a computer. He was 23 years old at the date of judgment. He suffered from lower back pain. There was evidence in that case that the injury may lead to the plaintiff having his working days reduced to four days per week. There was also evidence of future promotion to a software development senior position which would have increased his salary from $20,800.00 to $55,000.00 per annum. An interim permanent position would have increased his salary to $32,000.00. His honour found that the neck and back disabilities would result in a substantial loss of income over the years. The present case is not in that category. However, considering the matters referred to in the previous paragraph, a global sum of $40,000.00 is appropriate. Such an award is consistent with the authorities referred to of Crowther v Caesar^[20] and Walker v Durham^[21]; Walker v Durham.^[22]

Future loss of superannuation entitlements

[20] Using the usual 9% on future earnings, the amount allowable under this head of damage is $3,600.00

Past special damages

[21] It is common ground that the loss under this head of damage is $1,366.40. It is also common ground that interest at 2.7% for 3.9 years would amount to some $101.

Health Insurance Commission

[22] This amount is agreed at $216.30.

Future special damages

[23] The defence argues^[23] that of the claim for past specials, the amount for physiotherapy was $670.00. Therefore, the balance of $697.00 related to other specials incurred over 3.9 years or $3.00 per week. Expenditure was estimated at $2.00 per week since January 2003. The defence submit that an allowance of $1,000.00 is appropriate. The plaintiff has submitted^[24] that an allowance of $30.00 per month for 40 years is appropriate. This would if discounted amount to $6,480.00 it was submitted. The plaintiff wanted to continue with Bowen Therapy which is up to $38.00 per treatment. The exact number of such treatments is uncertain. If one allowed six per annum the cost is considerable. The plaintiff suggested that more frequent treatment may be necessary^[25]. She has ongoing need for pain relief and spends about $15.00 per packet of 20 tablets which is about $6.00 per month. I would allow $5.00 per week for 40 years. Using the 5% per cent discount tables this equates to about $4,500.00.

Past Griffiths v Kerkemeyer

[24] In the Statement of Loss and Damage^[26] dated 24 July 2004 the plaintiff claims $900.00 under this head. It was calculated on the basis of 60 hours at $15.00 per hour. The plaintiff stated that she required the assistance of her mother who helped with washing needs, hanging out her washing and bringing it in, doing ironing, taking the plaintiff to the doctor and running errands. The plaintiff went on holidays shortly after the accident, but of course these tasks had to be done in any event. The plaintiff at trial relied upon Exhibit 10 for a claim of 82 hours at $15.00 per hour which made a total of $1,230.00. It seems that to allow more than 60 hours would mean that there was minimal ongoing care for driving etc. pre-trial. The defendants accept that $900.00 would not be unreasonable^[27]. I allow that sum. Interest at 2.7% for 3.9 years produces a figure of $95.00.

Future Griffiths v Kerkemeyer

[25] A substantial part of the pre-trial claim relates to the first four weeks. There has been minimal ongoing care except for driving from times to time by her boyfriend when he neck is painful. Also, if and when she falls pregnant, the plaintiff will require further assistance as lifting would exacerbate her symptoms. A global sum can be made^[28]. In the present case allowing half an hour per week for 20 years would produce an award of $5,328.00. I allow the sum of $5,000.00 under this head.

Summary of Damages

Pain and suffering and loss of amenities 35,000.00

Interest on general damages 1.188.00

Future Economic Loss 40,000.00

Future loss of superannuation 3,600.00

Past special damages 1,366.40

Interest on special damages 101.00

Health Insurance Commission 216.30

Future Special Damages 4,500.00

Past Griffiths v Kerkemeyer 900.00

Interest on past Griffiths v Kerkemeyer 95.00

Future Griffiths v Kerkemeyer 5,000.00

Total 91,966.70

Orders

1.	Judgment is entered for the plaintiff against the second defendant in the sum of $91,966,70.
2.	It is ordered that the second defendant do pay the plaintiff’s costs of and incidental to the action including reserved costs if any to be assessed.

^[1] paragraph 9 of the Statement of Claim.

^[2] Exhibit A paragraph 2

^[3] Transcript p.5 line 54

^[4] p.6 line 18

^[5] p.6 lines 40-60

^[6] p.7 lines 10-36

^[7] p. 8 lines 24-44

^[8] Exhibit B paragraph 3

^[9] T58/l15/25

^[10] Exhibits 12 and 13

^[11] Exhibit 18 paras. 15-18

^[12] Exhibit 19

^[13] Exhibit 15

^[14] p.46-49

^[15] Exhibit 20.

^[16] Exhibit 1 p.13

^[17] Exhibit 20

^[18] (2003) QCA 531 para.22.

^[19] per Byrne J. 3 September 2004

^[20] per McGill DCJ 11 September 1998

^[21] [2003] QCA 531

^[22] [2003] QDC 21 at para.51

^[23] Exhibit B para. 31

^[24] Exhibit A para.25

^[25] p. 16 lines 26-35

^[26] Exhibit 16

^[27] Exhibit B para.17

^[28] Grice v State of Queensland (2005) QCA 272 at p.31