Insurance Bulletin. The Court has its Say! Assessment of General Damages Under the Civil Liability Act (Qld) May 2005

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1 Insurance Bulletin The Court has its Say! May 2005 Assessment of General Damages Under the Civil Liability Act (Qld) This is the first occasion in Queensland where the quantum provisions of the CLA have been tested in the courts... it may be that plaintiff lawyers will gain some confidence from the decision. The Civil Liability Act 2003 (QLD) (CLA), combined with the costs implications of the Personal Injuries Proceeding Act (PIPA), seems to have put a significant dent on the willingness of plaintiff lawyers to undertake speculative claims for relatively minor personal injuries. We have previously expressed the view that this combination was a likely reason why there had been such a significant drop off in injury claims. On its face, the damages provisions and categories of injury scale valves (ISV s) of the CLA appeared so clear that we expressed the view that there was doubt as to whether plaintiff lawyers would be prepared to chance their arm and speculate claims for relatively minor injuries as there was little or no financial incentive for them to do so. In fact, there was the prospect that to act in such claims would be unprofitable. A recent decision of the District Court of Queensland at Rockhampton in Rosemary Lee Coop v Benjamin Joseph Johnston and Suncorp Metway Limited [2005 QDC 079], delivered on the 24 March 2005, may change all that. The District Court deals with the bulk of injury claims in Queensland. The decision is currently listed for Appeal, but we do not know whether the Appeal will proceed. Introduction This case involved a young woman who suffered what appeared to be relatively minor injuries, the most significant of which was a minor whiplash (assessed by the defendant s medical expert as having a zero impairment on the AMA 5 scale). At the time of the incident, she was taken to hospital, but released shortly after, and prescribed analgesics. The Plaintiff had a poor work history and had only been employed for 14 months over a period of some 14 years between 1988 and 2002 (her entire working life). In this recent case, the plaintiff was awarded damages totalling almost $75,

2 How this result was reached is set out in summary below. What is apparent is the court s willingness to exercise its discretion to exceed the maximum ISV s allowed by the CLA. In this instance, the dominant injury, if assessed on its own, would have been allowed an ISV of 10. However, when combined with the multiple injuries, the maximum ISV of 13 was allowed, which was then increased to ISV 16 to reflect discretionary matters granted to the court by the CLA itself. If the judgement is not overturned on appeal, and if later decisions adopt the same methodology, it is possible that awards of general damages for pain and suffering under the new legislation could approach common law damages levels prior to the passing of the CLA and PIPA. Facts The plaintiff was born on 22 March 1973 and sustained injuries in an accident which occurred on 10 December At the time of trial on the 25 January 2005, the plaintiff was aged 31 and she was 29 years of age as at the date of the accident. Liability was admitted and the case was argued on quantum only. The injuries occurred as a result of a motor vehicle accident about 7 kilometres south of Gympie. The plaintiff and her sister noticed some stationery vehicles on the highway with their hazard lights operating and there was a tree across the roadway. As a result, the plaintiff s sister stopped her car and the plaintiff got out to render assistance. She was standing in front of a vehicle which was facing south when a station sedan driven by the first defendant collided with the tree and thereafter with the vehicle in front of which the plaintiff was standing. It then struck the plaintiff, throwing her onto its windscreen and, as a result, she suffered injury. The plaintiffs injuries appeared to be quite minor. According to the records of the Gympie Hospital, the plaintiff complained of pain to the right side of her face and nose and her left hip. A slight nose bleed was noted. Bruising was noted over the lateral aspect of the mid shaft of the left humerus but no fracture was seen. Facial bruising was noted on the left face and a small scratch was seen on the left side of the nose. However there were no breathing difficulties noted. On examination to the left elbow, no abnormality was detected. Xrays were performed which revealed no fracture of the hip or femur. The Plaintiff was prescribed analgesia and discharged. While the plaintiff suffered multiple injuries, (all accidents are likely to have this result to some extent) all would appear to have been relatively minor. We have summarised each of the injuries and the findings made by the court, as this is important in understanding how the ISV s prescribed under the legislation have been interpreted. Nose Subsequent x-rays showed a small fracture of the nasal bone with minimum displacement. While there was some argument as to whether this injury was caused by the accident or whether it could be attributed to the plaintiff being punched in the face 2

3 on a previous occasion, the court found that it was the accident that caused the injury. Minor Orthopaedic Injuries The court found that the plaintiff suffered a soft tissue injury to the area of her left hip as well as bruising to the left side of her face and a small scratch on the left side of her nose, bruising over the lateral aspect of the mid shaft of the left humerus. The court found that all of those injuries resolved quickly and that with exception of some minor scarring noted by Dr Matthews, the plaintiff suffered no residual disability from those injuries. Left Wrist The plaintiff asserted that she suffered an injury to the left wrist in the nature of a lump described as a ganglion. While noting that such conditions might arise spontaneously, (it arose quite some time after the accident) the court found that it was due to the accident. The plaintiff s medical specialist assessed a permanent impairment (after referring to the American Medical Association Guides, 5 th Edition) as 10% of the left wrist, converting to 6% of the left arm and 4% of the whole person. However, the doctor said that with treatment the Plaintiff should be left with very little, if any, impairment. Neck Pain & Headaches According to the plaintiff, the symptoms which caused her most difficulty were neck pain and headaches. The plaintiff s medical specialist diagnosis was a whiplash injury. He said that the neck problems might improve a little, up to a year or so post injury, but that by and large where a patient has problems three months post injury these do not get much better and he opined that the plaintiff s neck condition might be considered stationery and stable. The plaintiff s medical specialist assessed permanent impairment in relation to plaintiff s neck as 5% of the whole person, assessed under Diagnosis Related Estimated Cervical Category 2 table 15-5, page 392 of The American Medical Association Guides, 5 th Edition. The defendant s medical specialist expressed the opinion that the accident described by the plaintiff has resulted in a number of soft tissue injuries, the most significant of which was persisting discomfort in the cervical region. However, he said that as there were no neurological deficits or any radicular symptoms, her cervical condition was assessed as a DRE Cervical Category 1, with a 0% permanent impairment. (The defendant s medical specialist was referring to the American Medical Association Guides to the Evaluation of Permanent Impairment, 5 th Edition, the same as the plaintiff s specialist). It seemed common ground from both medical experts that the plaintiff was fit for normal work and that she should be able to work to normal retiring age although the plaintiff s expert qualified this by saying that she should avoid repetitive movements with her left wrist and /or getting into confined spaces due to injury to her neck. Assessment of Quantum under the CLA 1. The Judgment refers in great detail to the relevant sections and regulations prescribed by the CLA which a court must observe in assessing damages. 3

4 2. The Court found that the injuries suffered by the plaintiff were as follows:- soft tissue injury to left hip/thigh; soft tissue injury consisting of bruising to lateral aspect of mid-shaft of left humerus; soft tissue injury consisting of bruising to left side of face; soft tissue injury consisting of a small scratch to the left side of the face; cervical spine injury; ganglion to left wrist; displaced fracture of the nose. 3. It is clear that the plaintiff suffered multiple injuries, most of which were minor, resolving over a very short space of time. 4. Section 3 of Schedule 3 of the Regulation provides that in assessing the ISV for multiple injuries, a court must consider the range of ISV s for the dominant injury of the multiple injuries. To reflect the level of adverse impact of multiple injuries on an injured person, the court may assess the ISV for the multiple injuries as being higher than in the range of ISV s for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only. 5. Schedule 7 of the Regulation defines dominant injury as the injury of the multiple injuries having the highest range. Section 8 of Schedule 3 of the Regulation refers to Schedule 4 which sets out provisions relevant to using Schedule 4 to assess an ISV for particular injuries. However, Section 8 of Schedule 3 (3) states that the fact that Schedule 4 provides examples of factors affecting an ISV assessment is not intended to discourage a court from having regard to other factors it considers are relevant in a particular case. These words give the courts significant discretion. Methodology adopted by the Court The court took the view that its first task in relation to each injury was to make a determination as to which injury in the injury column of Schedule 4 most closely describes the injury suffered by the plaintiff. However, the court emphasis that until a determination was made as to which is the dominant injury it was unnecessary to assess an actual ISV in relation to any particular injury. Each of the injuries found by the Court were dealt with in order:- soft tissue injury to the left hip/thigh; - the court conceded that on any view of the matter, the injury suffered by the plaintiff was a very minor one. Part 6 Division 9 of Schedule 4 deals with pelvis or hip injuries. Item 128 is minor pelvis or hip injury. The example given for this injury is an an uncomplicated fracture which the plaintiff here certainly did not have. The court found that the soft tissue injury suffered by the plaintiff may be assessed as an item 128 injury for which the range of ISVs is 0 to 10. The court was satisfied that the injury suffered by the plaintiff was not so minor as to not justify any award of general damages. An actual ISV was not assigned. 4

5 soft tissue injury to left humerus; - item 124 is for a minor upper limb injury. The court assessed this injury as an item 124 injury for which the range of ISVs is 0 to 5. Again, no actual ISV was assigned. soft tissue injury to face; - item 17 is for a minor facial injury. The examples given were for fractures or other much more serious injuries than the bruising suffered by the plaintiff. The court found that there is no injury in Schedule 4 which provides an ISV where there is merely bruising to the face. Importantly, while the court found that this injury was not severe enough by itself to justify any award of general damages, it found that the fact that the plaintiff had suffered this injury is a matter which may be taken into account pursuant to section 9 of Schedule 3 of the Regulation. (ie. In assessing an ISV, a court my have regard to other matters to the extent they are relevant in a particular case). Scratch to the face; - item 22 is for minor facial scarring. The court applied this item and found that the small scratch to the left side of the nose falls within Item 22 for which the range of ISVs is 0 to 5. Cervical spine injury; - part 6 Division 1 of Schedule 4 relates to cervical spine injuries. The court noted that if it were not for the applicability of CLA to the assessment of the plaintiffs damages, this injury would clearly be the most significant of the plaintiffs injuries and it would present little difficulty for the court. The defendants argued that their medical evidence ought to be accepted and if so, this would lead to the injury being assessed as one within Item 89 minor cervical spine injury for which the range of ISVs is 0 to 4. The plaintiffs argued that their medical evidence ought to be accepted and if so, that this would lead to the injury being assessed as one within Item 88 moderate cervical spine injury soft tissue injury for which the range of ISVs is 5 to 10. After considerable discussion, the court concluded that item 89 which diagnosed minor as whip lash injury was not appropriate as there was evidence of ongoing symptoms, and it was simply not merely a nuisance. The court therefore accessed the cervical spine injury to be an item 88 injury for which the range of ISV s is 5 to 10. Ganglion to left wrist; - the court concluded that item 108 minor wrist injury was the appropriate item under which to access the Ganglion. The court therefore allocated an ISV range of 0 to 5. Displaced fracture of nose; - The court assessed this to be an item 16 injury moderate facial injury. One of the examples given of such an injury is a displaced fracture of the nasal complex from which the injured person will almost fully recover after surgery. The court found that the nasal fracture was therefore an item 16 injury for which the range of ISV s is 6 to 13. 5

6 Assignment of ISV The court concluded that the dominant injury was therefore the item 16 injury (the nasal fracture), as it was this injury which had the highest ISV rating. (Notably, this injury had almost no impact on the plaintiff s life). Pursuant to Section 3 of Schedule 3 then, the ISV for the plaintiff s multiple injuries is within the range of 6 to 13 (Section 3 (1) states subject to Schedule 4, in assessing the highest ISV for multiple injuries, a court must consider the range of ISV s for the dominant injury of the multiple injuries). The court accepted that this was a surprising result because on any view of the evidence, the most significant of the injuries was the cervical injury. The court noted that subject to Section 4 of Schedule 3, the maximum ISV which may be assessed for the plaintiff s multiple injuries is therefore 13. The court went on to say that pursuant to Section 3 (2) of Schedule 3, the court may assess the ISV for multiple injuries as being higher in the range of ISV s for the dominant injury than the ISV the court would assess for the dominant injury alone. The court noted that if it were assessing the nasal injury alone, it would assess the ISV towards the middle of the range, and that an ISV of 10 for the nasal injury alone would be adequate. The court noted however because the cervical spine injury was of some significance, it would be appropriate to assess a higher ISV for the multiple injuries than for the dominant injury alone. The court also noted that Section 4 of Schedule 3, dealing with multiple injuries, allows the court to consider the ISV above the maximum ISV allowable for the dominant injury if it considers the level of adverse impact of multiple injuries on an injured person to be so severe that the maximum dominant ISV is inadequate to reflect the level of impact. The section provides that this should be rarely more than 25% higher than the maximum dominant ISV and that if more of 25% of the maximum dominant ISV was allowed, the court must give detailed written reasons for the increase. The court found that the level of adverse impact of the plaintiff s multiple injuries was so severe that an ISV of 13 (the maximum dominant ISV) was inadequate to reflect the level of impact. The court took into account the pain and suffering of the plaintiff and her loss of amenities of life as well as the fact that she was still a relatively young woman with a normal life expectancy. In those circumstances, the court assessed the ISV for the multiple injuries at 16. Assessment of Damages In summary, the plaintiff s damages were assessed by the court as follows: 6

7 General Damages $19, Interest on $9, at 2% for 2.3 years $ (section 60 of the CLA did not apply to the accident as the accident occurred prior to the date of assent on 9 April 2003) Past loss of earning capacity $9, Loss of Superannuation (Past) $ Future loss of earning capacity (Global) $30, Loss of Superannuation (Future) $2, Special Damages $1, Interest on $ at 2.735% for 2.3 $45.00 years Future Surgery - Nasal Surgery $2, Ganglion Surgery $2, Future Pharmaceuticals $4, TOTAL $73, It may be that plaintiff lawyers will gain some confidence from the decision, and in the longer term, will be more disposed to press their clients claims. Dennis Cronin Partner Conclusion This is the first occasion in Queensland where the quantum provisions of the CLA have been tested in the courts. While it is a District Court decision, and we are unsure whether the appeal will proceed, it gives some guidance as to how the courts are likely to apply the CLA provisions in Queensland. For more information please contact: Dennis Cronin Partner Jamie McPherson Partner Tracey Martin Senior Associate Ed Zappert Senior Associate Level 3, 200 Mary Street Brisbane Queensland 4000 GPO Box 3269 Brisbane Queensland CLS Lawyers respects your privacy and allows only limited use or disclosure of your personal information. Our privacy policy is available on request. This publication is not legal advice. Legal advice should be sought by you before applying any of the information. If you do not wish to receive this publication in the future or if you would like to receive other publications, please us at CLS Lawyers

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