Murphy v Turner-Jones [2022] QSC 40
Decision delivered on 31 March 2022
Background
The plaintiff, Brett Murphy, was seeking damages for injuries arising from a Motor Vehicle Accident on 12 September 2017 in Rockhampton.
The plaintiff claimed that as a result of the accident, he suffered an “an out of position whiplash injury and polytrauma at each level of his spine and pelvis” as well as a “coup contrecoup injury.” As such, he sought damages in the sum of $10,249,234.00. The second defendant admitted liability, and submitted that the accident involved minimal forces of impact and thus caused the plaintiff only a “mild ligamentous strain to the cervical spine.”
Issues
Despite the plaintiff’s sincere believe that the accident was a high impact collision, the Court accepted the defendant’s submissions that the motor vehicle accident occurred at low speed, with minor impact and minimal damage to both vehicles. This was supported by dash cam footage and photographs of the damage sustained by the cars.
The larger issues in this case were the nature, extent and impact of the injuries sustained by the plaintiff, as well as the effect of the comorbidity that he suffered from, namely being paranoid schizophrenia, hypertension and diabetes.
Assessment of Damages
In the Court’s assessment of the General Damages to be awarded to the plaintiff, Crow J turned to the opinions of the medical experts who assessed the plaintiff’s injuries.
His Honour turned first to the findings of Dr Prue Fitzpatrick, Orthopaedic Surgeon. Dr Fitzpatrick assessed the plaintiff as having a 0% Whole Person Impairment (‘WPI’), opining that he did not suffer any serious orthopaedic injury as a result of the accident. She explained that although the plaintiff may have sustained a whiplash injury from the accident, there was no “clear organic pathology in the cervical spine to explain the severity of his ongoing symptoms” and that any pain the plaintiff was suffering arose from a developed pain syndrome. She explained that any multilevel degeneration shown by the radiology was aligned with natural degeneration that comes with age, and that, as such, there was no reason he could not return to work in his pre-accident role as a taxi driver.
These findings are starkly contrasted by the assessment of Dr Todman, Neurologist, who assessed the plaintiff as having a 7% WPI arising from a whiplash injury involving the cervical spine, with ongoing symptoms of a post-whiplash syndrome or chronic musculoligamentous strain. Dr Todman found that the plaintiff had restricted cervical spine movements as well as tenderness in his mid-cervical and trapezius muscles, which prevented him from returning to work in a full time capacity. Crow J questioned whether Dr Todman had appropriate regard for the fact that just because a patient believes they have a serious injury which is causing them immense pain, it does not necessarily make that the case.
The assessments of Occupational Therapists, Mr Zietek and Mr Siebel, were also considered. Both therapists found inconsistencies in the plaintiff’s presentation as to his injuries, pain levels and range of motion in comparison to the assessment of Dr Todman.
His Honour ultimately determined that due to the plaintiff’s inconsistency in presentation, Dr Fitzpatrick’s assessment of a 0% WPI with a whiplash injury and pain syndrome should be accepted.
In determining the appropriate ISV, Crow J applied s 8(3) and s 9 of Schedule 3 of the Civil Liability Regulation 2014 (Qld) (‘the Regulations’) which emphasises that proper regard be had to the pain, suffering, and loss of amenities of life actually sustained by the plaintiff from his accident. His Honour went on to say that although there was no impairment arising from his whiplash injury, it would be “appropriate to accept that Mr Murphy has suffered from a minor impairment as a consequence of his pain syndrome.” The issue then, however, is that a pain syndrome does not have an item number or category within Schedule 4 of the Regulations.
His Honour evaluated the relevance of Items 86, 87 and 89, but excluded them on the basis that his injuries did not adequately satisfy the descriptors. His Honour ultimately determined that although the plaintiff’s injuries did not strictly fall within the descriptors of Item 88, being a ‘soft tissue injury of the cervical spine,’ it was the most appropriate option of the classifications available for the purposes of obtaining an ISV. His Honour stated, “in my view it is proper to conclude that the injury ought to be classified as a moderate cervical spine injury soft tissue injury because of the great deal of pain that Mr Murphy had suffered, and its negative impact on Mr Murphy’s activities of daily living.”
An ISV of 10 was awarded, which quantified to a general damages amount of $16,150.00.
In His Honour’s consideration of the plaintiff’s economic loss, Crow J noted that the plaintiff had a complicated employment and income history. With this in mind, His Honour applied the principles set out in Medlin v State Government Insurance Commission, emphasising that it was particularly important in this circumstance to compensate the plaintiff for his loss of earning capacity, rather than his loss of earnings. Further, whilst Crow J accepted that the plaintiff genuinely suffered from neck pain and that this had affected his earning capacity, His Honour determined there was insufficient medical evidence to indicate that the accident prevented him from returning to work as a taxi driver. It was ultimately concluded that the plaintiff’s earning capacity was reduced by 50%, which was then discounted by 25% to account for his pre-existing mental health condition.
Crow J again acknowledged that whilst the plaintiff’s pain had diminished his future earning capacity, he had a “complex past health and financial history.” The plaintiff was assessed as suffering a 50% loss of future earning capacity, with a discount of 35% applied for his pre-existing mental health condition.
The plaintiff also sought claims for loss of business goodwill, capital gains loss, a loss of intangible assets, loss of Centrelink sickness payments and loss of student financial supplement scheme, but these were all rejected by the Court.
Logically, medical and pharmaceutical expenses which were clearly identifiable as being relevant to the accident were awarded. His Honour also made an allowance of $10.00 per week for the remainder of the plaintiff’s life to assist him with treatment of his pain syndrome.
The plaintiff’s request for over $50,000 in future surgeries was rejected on the basis that there was no medical evidence to support a need for further surgeries. He was awarded minor damages for future medical and pharmaceutical expenses.
The plaintiff was not awarded exemplary damages.
Decision
The Court found judgement for the plaintiff against the second defendant in the sum of $200,776.07.