CLA: MVA whiplash – nil future economic loss

Moynes v Heilbronn & another [2015] QDC 143

Case summary by Madeline Cormack – Q.U.T law student




(First Defendant) And


(Second Defendant)

JUDGE: Bowskill QC DCJ
ORDER: 1.      Judgment for the plaintiff against the defendants in the amount of $57,942.88.2.      Any submissions in respect of costs, or alternatively a proposed consent order if the parties are agreed, be filed within 14 days.
CATCHWORDS: DAMAGES – PERSONAL INJURIES – QUANTUM –Where dispute as to extent and consequences of whiplash injury suffered in motor vehicle accident – Whether subsequent symptoms, including headaches, causally related to the accident – Dispute as to various heads of damages, including past loss of earnings and future loss of earning capacity



The plaintiff was injured in a motor vehicle accident on 27 August 2007 when the first defendant’s car collided with the rear of her car, as she was waiting at an intersection to turn. She claimed damages for the injury suffered. Liability was admitted. Quantum was in dispute. The admitted injury was a musculoligamentous strain injury involving the supporting structures of the cervical spine (whiplash). The issues in question were the extent and consequences of the injury, in particular economic loss.

Summary of the damages sought:

Head of Damage Plaintiff Defendants
General damages $    5,000.00 $  4,000.00
Past economic loss, plus interest $120,759.038 $20,000.00
Past superannuation at 9% $  10,167.26 $  1,800.00
Future economic loss $144,967.16(alt $100,000) Nil
Future superannuation at 9% $  13,771.88 Nil
Future care $  33,507.00 Nil
Future expenses $    1,000.00 Nil
Past special damages $  12,210.98 $12,031.249
Fox v Wood $    3,262.00 $  3,262.0010


  • The plaintiff gave evidence of suffering from migraines prior to the accident and said these migraines were:

“mostly at the front of my head – left hand side in one particular eye – my left eye. They become quite a sharp pain in my eye and come over the top of my head. I sometimes would get visual disturbances with that, and to an extent that I would be vomiting sometimes with them”. She would sometimes get dizzy as well.

  • Prior to the accident the plaintiff would sometimes suffer from 6 to 8 migraines a year of varying severity. She would not see her GP every time she had a migraine, only if the pain could not be controlled (maybe twice a year).
  • The plaintiff stated that having a hysterectomy in 2004 reduced her migraines to ‘about four a year’. Her husband stated after the plaintiff’s operation, the migraines reduced to maybe one quarter.
  • The plaintiff said when the accident happened she felt “extreme pain in the back of my head and a lot of pressure in the back of my head. And it extended down my shoulder”. The extreme pain was felt “every week” but got a little better in 2011 when she reduced her hours.
  • The pain resulted in headaches, which the plaintiff described as a “lot of pressure, again, in the back of my head, to the extent that it went down my arm and just never stopped – didn’t seem to stop unless I took pain killers”. The pain was “completely different” from the pain suffered previously because “it was just constantly there. And it was at the back of my head and not the front of my head”. The plaintiff stated she had no visual disturbance but sometimes felt nauseous and dizzy. Since the accident she had migraines “probably once or twice a year”.
  • The plaintiff’s husband commented about the impact of the accident as follows:

“the most noticeable thing was just her anxieties. She seemed a lot more anxious. The pain – the pain she was getting mainly was through the back of her neck, the back of her head areas, which seemed a lot more severe, what I could see, and she had a little, areas of, sort of moving, or if she did a little bit of work, down on her arms and things like that”.

  • The plaintiff had about 6 weeks off work after the accident before starting a gradual return to work program.
  • The plaintiff continued to suffer from extreme headache pains and nausea.
  • The plaintiff’s employment with Centacare was terminated on 17 March 2008.
  • Changes were made to work environment of the plaintiff at St Columbus and the plaintiff made changes to how she did her work, breaking tasks up as well as receiving assistance. No similar changes made at Holy Rosary.

Bowskill QC DCJ findings:

  • Did not accept all aspects of the plaintiff’ evidence due to reliability, although finding her honest – the plaintiff’s evidence was inconsistent with the contemporaneous records kept by her GP and other treating medical/health practitioners. Her Honour referred to the following passage from the judgment of Lord Pearce inOnassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431:[229]

“ ‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly in the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”[230]

  • Accepted the plaintiff suffered a musculoligamentous strain injury involving the supporting structures of her cervical spine.
  • Injury: DRE Cervical Category 1, 0% whole person impairment. No uplift allowed for under AMA5, noting its construction should be clarified by the AMA5, but was not required to determine the point on its construction because the medical evidence as whole did not warrant it. Her Honour relied in particular on the G.P records and neurologists, in particular Dr Saines in respect of the headaches as opposed to the report and evidence of Dr Gillett. See also the comments made by Judge McGill SC in relation to the AMA5 in Lee v Richards [2008] QDC 257 at [12].  Her Honour allowed item 89 and ISV 4 without any uplift.
  • Accepted the plaintiff suffered headaches from whiplash, particularly in the initial period of about 6 months post injury.
  • Found the continuing headaches reported by the plaintiff were not causally related to the whiplash injury she sustained in the accident. They may be explained either as related to her pre-existing migraine condition, or other tension headaches suffered by a person from time to time.
  • Found early 2010 the plaintiff had recovered from the symptoms of her accident-caused injury and any symptoms she subsequently experienced are not causally related to the accident in August 2007. Hence, no allowance was made for future economic loss:

[216] For the reasons I have outlined above, I do not accept that the plaintiff’s decision to reduce her workload in May 2011 can be said to be causally related to the injury she sustained in the accident.

[217] But I need also to consider whether there is any basis for an award of damages for loss of future earnings, on a global basis.

[218] Relevantly, by s 55(2) of the CLA, the court may only award damages if it is satisfied that the person will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

[219] In order to recover an award for economic loss it must be demonstrated that the injured person’s negligence-caused impairment has resulted in loss in monetary terms.[242] The principle was confirmed in Medlin v State Government Insurance Commission [1995] HCA 5(1995) 182 CLR 1 at 3 per Deane, Dawson, Toohey and Gaudron JJ:

“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in additional to general damages for pain, suffering and loss of enjoyment of life. It is that ‘the diminution of … earning capacity is or may be productive of financial loss.’”[243]

[220] On the basis of the findings I have made above, I am not satisfied the plaintiff has proved that her earning capacity has been diminished by reason of the negligence-caused injury. Accordingly, I do not allow any amount for future economic loss.

Summary of Damages Awarded

General Damages $  4,000.00
Past economic loss $33,500.00
Interest on past economic loss $  1,954.90
Past superannuation $  3,015.00
Past special damages (agreed) $12,210.98
Fox v Wood (agreed) $  3,262.00
Total $57,942.88




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