Harris v Montaigne & RACQ Limited [2011] QSC 113

Issue: Quantum – causal link of the plaintiff’s cervical injuries to the incident.

Liability for the motor vehicle incident where the plaintiff collided with a protruding plank from the defendant’s vehicle, whilst riding her bicycle was admitted. What was in dispute was her injury to her cervical spine.

Cullinane J:

[24] She was pressed about this by counsel for the defendant and asked why she put nothing there about any injury to her neck or to her back.

“HIS HONOUR: —– of injury. Do you understand that? That you didn’t suffer any injury to your neck or to your back in this accident. That’s what he’s suggesting?—Oh, okay. So I should have put down there that I suffered neck and back problems.

MR O’SULLIVAN: No, but you went on when I asked you the question—?—Oh, yeah.

—at this- up to this point in time? – Yes.

And what you’re really saying, aren’t you, is that —?—Is just the —

—up to the —-?– —–laceration—-

—-5th of April 2007—?—Yes.

—-the only injuries that you recognised as arising from this accident— ?— Yes.

—-was the laceration to the scalp and the left eye?—Yes

And that is because you didn’t have any pain in your neck or pain in your lower back up to the 5th of April 2007, that’s correct? – Yes.”

[25] At p 1-38 lines 25-40 when asked about the contents of her statement the plaintiff said:

“When you say, ‘I’ve continued to experience significant ongoing pain in neck and lower back’ – again, I put to you that that’s wrong as well; that didn’t happen? – That’s false. Over the last four years that is true, I have been – I do experience ongoing pain. In the first initial couple of months of the accident, no, and I didn’t think anything of it, but yes, as the years have gotten on that statement is correct.”

[26] I should also make reference to what the plaintiff said at p 1-45 lines 10-55, in an attempt to explain when the symptoms developed and what their effect was:

“Yes? — —- and then after a period of a couple of months, the back pain was no longer intermittent, it was constant. It was either a dull constant pain or it would be extreme. So after a couple of months of the accident, it became increasing on going pain but I – I thought, ‘Well, why go see a doctor about it’, you know. What are they going to do? Nothing. Go take some pain killers, here you go, see you later.

MR O’SULLIVAN: Yes.

HIS HONOUR: So are you saying that for the first couple of months or so after the accident, you just had the same sort of —-? – I had the sort of same intermittent back pain —

That you—-?– —- which—–

—–that you had before? — Yeah, which I had which I put down —-

—-and what area of this? What part of your body? – This was in my back, in my lower back.

Yes? – And then after a period of a couple of months towards the end of 2007, that’s when my neck – I started getting neck pain and tingling down my shoulder and then the constant back pain.

Mmm.

MR O’SULLIVAN: So that – so that came on at the end of 2007? – Yes, yeah, towards the end —

About nine months?— —- of 2007.

About nine months after the accident? – Six to nine months, yes.

Mmm? – Yeah, I can’t recall the exact time.”

[27] In giving this evidence, the plaintiff may have not done full justice to her case. There is evidence of the plaintiff attending Dr Poggio in Ingham (he had apparently been the family doctor) on 5 May 2007 complaining of pain in the cervical spine which had appeared approximately five weeks earlier following the accident.

[33] There are undoubtedly some pieces of evidence supporting a causal link between the accident and the symptoms in the cervical and lumbar spines.

[34] However, notwithstanding these considerations it is impossible to avoid the effect of the plaintiff’s sworn evidence. On more than one occasion including a time when the plaintiff was not responding to leading questions, she stated that the symptoms in her cervical spine and the symptoms in her lumbar spine (qualitatively different from those which she had suffered for some years) did not appear until a time which would make it impossible to link it with the accident which has given rise to these proceedings.

[35] In these circumstances, the plaintiff’s claim that she sustained disabilities of the upper and lower spine in the accident which have impaired her capacity to engage fully in the work of a nurse cannot be accepted.

[36] The damages which the plaintiff is entitled to recover are therefore quite modest and will be limited to the laceration to the head and the pain and suffering associated therewith and special damages.

[37] The defendant contends that the appropriate item in the Civil Liability Regulation 2003 as amended is Item 22 . It seems to me that this is correct.

38] The plaintiff has made a very good recovery from this with the scar not being readily apparent.

[39] The plaintiff is therefore entitled to the sum of $2000 for general damages with interest since the accident of 2% on $1500 providing a figure of $125.

[40] In addition, she is entitled to recover the following special damages:

(a) special damages – $320.00

(b) loss of wages – $377.21

(c) Fox v Wood – $328.00

There will be judgment for the plaintiff against the second defendant in the sum of $3150.21.

Brisbane Barrister – David Cormack

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