Evans v Williams & Anor [2018] QDC 210
Ms Evans was injured in a motor vehicle accident. She claimed to have suffered a Musculo-ligamentous lumbar spine injury, bilateral hip injuries and a psychiatric injury as a consequence of the accident. The defendants disputed the nature and extent of Ms Evans’ claimed injuries. Liability for the accident has otherwise been admitted.
Following the motor vehicle accident, Ms Evans returned to work the next day. She called in sick the following day because her pain ‘was getting really bad’. She described that the pain had increased following the accident but ‘pretty much remained the same since’. There has been no time following the accident when she had felt ‘completely free of pain’. She rated her pain as a ‘three out of ten’ as a base line, but described experiencing ‘ten out of ten’ pain approximately every fortnight. Despite this level of pain, Ms Evans did not seek medical assistance until a considerable time after the accident and has not sought physiotherapy or chiropractic treatment.
Ms Evans said that she did not tell her then employer about the accident for fear of losing her job. She said she could manage her duties ‘but on a slower pace’. After the accident, she adjusted her hours. For example, she would start work early in order to commence meal preparation – sometimes she would commence work at 3:45am or 4:30am for a 6:00am start; sometimes she would ‘finish a little later’.
Approximately 7 months after her accident, Ms Evans resigned from her employment for reasons unrelated to her injuries.
Ms Evans first sought medical treatment for lower back pain approximately 7 and a half months after her accident. It was noted in the doctor’s consultation notes on this occasion that the reason for the visit was for ‘lower back pain’.
For about 2 years, Ms Evans held a variety of jobs, all of which were short term due to being too physically painful on her back or not sufficiently mentally stimulating. She was on Centrelink benefits for a short period of time. She eventually landed steady employment as a support worker assisting people with disabilities; her duties included showering them, preparing morning meals, getting them dressed, and assisting with their medication. Ms Evans self-modified her duties since commencing her employment.
Regarding the psychological consequences of the accident, Ms Evans described herself as a once happy person but now feels like ‘the wet blanket’. Her pre-accident interests included: painting, dancing, tenpin bowling, and salsa teaching. Now, due to the accident and her ‘excruciating pain’, she is unable to wear heels. Evidence was provided by multiple witnesses who testified to the negative psychological impact the accident had on Ms Evans, by comparing who she was prior to and post-accident. Overwhelmingly however, witnesses drew attention to Ms Evans strong work ethic post-accident.
Upon reviewing Ms Evans’ lack of medical consultations subsequent to her accident, Jarro DCJ expressed his concerns with the reliability of Ms Evans’ evidence regarding the extent of her injuries, in that her conduct did not accord with someone experiencing intensity of pain in the region of ‘ten out of ten’ every few weeks.
Evidence from Orthopaedic surgeons opined that Ms Evans had a 5% whole person impairment due to her lumbar spine. Insofar as a psychiatric injury, Ms Evans was diagnosed with an Adjustment Disorder with mixed anxiety and depressed mood and provided a PIRS rating of 5%. For both of these injuries, it was not said with certainty that the injuries where a direct result of the accident, due to Ms Evan’s long delay in seeking medical treatment.
Whilst Jarro DCJ did accept that Ms Evans’ evidence was unreliable, he did not accept that her damages ought to be $nil, as proposed by the respondent. He formed the view that Ms Evans was a stoic lady who attempted to address her levels of pain without immediately seeking assistance. The fact remains that Ms Evans was involved in a motor vehicle accident and suffered personal injury, however her reliability is such that it impacts upon the level of damages to be assessed.
Jarro DCJ accepted that Ms Evans suffered a lumbar spine and psychiatric injury due to the accident, however rejected the proposition that she suffered bilateral hip injuries due to the accident.
Damages Assessment
General Damages
Ms Evans was provided an ISV of 10 for her dominant injury, being the injury to her lumbar spine.
Past Economic Loss
Ms Evans was 51 at the time of the accident and is now 54 working as a disability support worker. Her taxation records did not reveal any significant drop in her earnings following the accident. Furthermore, her resignation from her job at the time was for reasons unrelated to the injury. Jarro DCJ therefore allowed a loss of one days’ worth of wage for past economic loss.
Future economic loss
Under s 55(2) of the Civil Liability Act 2003, the court may only award damages in
the event it is satisfied that the person has suffered, or will suffer, loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. This involves a consideration of whether Ms Evans has demonstrated, on the balance of probabilities, that her earning capacity has been diminished by reason of the accident-caused injuries and, if so, whether that diminution in earning capacity is or may be productive of financial loss.
It remains with Ms Evans to show that her earning capacity has been diminished by the accident caused injury and “that diminution is or may be productive of financial loss.” It was submitted on behalf of Ms Evans that an appropriate, albeit modest, award of damages for future economic loss is warranted. A figure of $90,000.00 was sought. The claim was formulated on $200.00 per week over 13 years (multiplier 502) less 10% for contingencies, or alternatively a global claim of that amount reflecting the restrictions on Ms Evans’ ability and her vulnerability in the open labour market. The defendant submitted an award of $10,000.00 on a global basis ought to be made.
Jarro DCJ ultimately concluded that Ms Evans is entitled to an award for future economic loss as he was satisfied that she would suffer loss having regard to her age, work history and her permanent impairment (especially in relation to her back. His Honour contended that she has worked for a significant part of her life in part-time employment earning a modest amount. Ordinarily, she had another 13 years part-time working history life ahead of her before normal statutory retirement age.
His Honour noted the opinion of the orthopaedic surgeons in that Ms Evans would be capable of employment as a cook exercising appropriate back care, however she would have propensity to lower back pain in the course of activities which may require repetitious low-level bending or lifting. The surgeons maintained the view that the back pain will restrict Ms Evans to light part-time work where she has the opportunity to sit at regular intervals.
The psychiatrist considered that the adjustment disorder has not prevented Ms Evans form returning to employment.
Reflective of all these matters and the fact that it is impossible to precisely calculate this head of damage given there is no defined weekly loss, His Honour will allow $20,000.00 as a global award for future economic loss.
Future special damage
In light of the opinions expressed by both psychiatrists regarding the need for treatment, together with the orthopaedic evidence regarding the need for analgesia and other anti-inflammatory medication, as a global amount Jarro DCJ allowed $2,500.00 for future specials.
Overall, Ms Evans received $42,364.27 for her claim.