Personal Injuries: it’s all about pain & credibility

Rook v Crofts & Anor [2018] QDC 184

The plaintiff’s claim arose out of a motor vehicle collision when the plaintiff’s vehicle was struck from behind. Accordingly, the trial concerned the quantum of the plaintiff’s damages only. The plaintiff’s injuries were to his cervical and thoracic spine, together with a psychiatric condition. The physical injuries were of a ‘soft tissue’ nature, and Dr J Maguire gave expert orthopaedic evidence on behalf of the plaintiff, and for the second defendant, Dr Fraser.

Dr Maguire assessed a 5 per cent and DRE category 2 for both the cervical spine the thoracic spine, giving a total 10 per cent impairment. The impairment was based on ongoing muscle spasm and restriction in range of motion. Dr Maguire noted on a subsequent review the presence of a small disc protrusion in the thoracic spine and that it was not possible to determine whether it was from the collision trauma or degeneration but considered that it was consistent with the collision. Dr Maguire considered that the plaintiff would have significant restrictions in his ability to work because he would only be capable of light work and his experience and training was in heavy manual work.

Dr Fraser assessed no impairment for both the cervical and thoracic injuries. Dr Fraser considered that there would have been a temporary period of incapacity of about a month, but that there was no ongoing incapacity. Dr Fraser considered degenerative processes of the thoracic spine caused the disc protrusion. Dr Fraser relied on the absence of the plaintiff attending upon his general practitioner (GP) and making complaints about the injuries.

The psychiatric injury was considered on behalf of the plaintiff by Dr Caniato and for the second defendant, Dr Shaikh.

Dr Canioto diagnosed the plaintiff with a post-traumatic stress disorder (PTSD) and an aggravation of a pre-existing major depressive episode, which was secondary to the neck and back injury.  The PTSD was based on the circumstances of the collision because the plaintiff was being followed by a group of bikies, who had not passed when they could have and then subsequently collided with the plaintiff.

Dr Caniato considered the plaintiff’s relationship breakup with his wife and his nightmares of the collision. During the interview, the plaintiff became teary easily, a feature which noted by Dr Maguire and Mr Scalia, an occupational therapist who also provided an expert report. Dr Caniato gave evidence that this was a genuine presentation and not easily falsified. Dr Caniato noted the plaintiff had not sought treatment and considered it a feature of males in rural settings and was not an indicator that the plaintiff was coping. Dr Canioto gave evidence if the plaintiff had returned to work fulltime or more regularly, then this would be a basis to review the rating in the PIRS Category 6 from 3 to 2. Dr Canioto gave a combined PIRS assessment for both of 12 per cent.

Dr Shaikh diagnosed a personality disorder based on his vulnerable upbringing and use of cannabis and amphetamines before and after the collision. Dr Shaikh did not consider there was any psychiatric disorder because of the collision. Accordingly, Dr Shaikh assessed a 0 per cent PIRS rating. Dr Shaikh considered the failure to seek treatment as an inconsistent indicator as to the existence of a psychiatric condition.

I draw your attention to the following:

  • McGill J was prepared to allow a 50% uplift on general damages because there were two injuries of roughly the same value towards the top of the range, together with the plaintiff being in significant pain, a matter the Court can take into account [60]-[62].
  • His Honour preferred the evidence of Dr Maguire and found that certain activities stirred up pain, which made the plaintiff resistant to those activities. If the plaintiff persisted in those activities, such as work, it left him in more pain and affected other activities, including looking after himself [53] & [83].
  • McGill J found that Dr Fraser did not have an objective explanation for the significant symptoms the plaintiff was experiencing and that it was inconsistent with the notion the plaintiff was inventing the complaints [46].
  • McGill J found the secondary psychiatric injury to be a feature of the physical injury [57].
  • McGill J was prepared to “do the best” his Honour could to assess the PTSD psychiatric injury, even though the PIRS assessment failed to assess it separately [58] – [61]. His Honour in the circumstances, moderated the 12 per cent PIRS impairment to fall within Item 12, with a PIRS range of two per cent to ten per cent.
  • McGill J found that the plaintiff was one of the most emotionally distressed plaintiffs he had seen during a trial but found this feature consistent with the manner in which the plaintiff had presented to the experts and lay witnesses as well.
  • McGill J accepted that the lack of reporting to his GP did not correlate with the absence of pain and restriction the plaintiff was experiencing [49].
  • McGill J accepted that the failure of the plaintiff to seek psychiatric treatment was not inconsistent with the diagnosis, but rather a feature of the condition (avoidance) and lack of financial resources to pay for treatment.
  • McGill J did not accept Dr Shaikh, the defendant’s psychiatrist [40] & [41], which is not the first time Dr Shaikh’s evidence has not been accepted cf: Robinson v State of Queensland [2017] QSC 165 at [442].
  • Despite the plaintiff’s ‘unfavourable’ personal history, failing to disclose his injury to prospective employers and inconsistent work history; McGill J accepted the plaintiff was a credible witness [48] & [53] – [54].
  • McGill J found it difficult to assess past loss of earning capacity because it was not clear what the plaintiff would have done and earned. His Honour assessed each period rather than a straight weekly loss by reference to a broader view of the plaintiff’s earnings. In so, his Honour considered the period when the plaintiff’s marriage failed and allowed a 40% discount for that period, on the basis the marriage may have failed for other reasons. His Honour took into account the seasonal nature of meatworks, where the plaintiff resumed work for period of time.  The total loss over five years was $74,178.00 [63] – [72].
  • McGill J found the assessment for future loss of earning capacity equally challenging. His Honour noted the imponderables about the plaintiff’s hypothetical notion of lost income as a commercial fisherman. Based on Dr Maguire and Mr Scalia, his Honour accepted the plaintiff would not have continued working at the meatworks. His Honour considered the plaintiff’s work at the meatworks would probably be only for another ten years, and then the plaintiff would find difficulty working. The plaintiff claimed $900.00 net per week, but his Honour allowed a notional rate of $800.00. His Honour considered the plaintiff would only have work another 25 years (66 years, not 70) and discounted the first ten years on the 5% tables by allowing one-third of his hypothetical non-accident earning capacity, further discounted for contingencies and been paid at present value. For the remaining 15 years on the 5% tables, his Honour allowed two thirds, again with the usual discount for contingencies and being paid in the present value. The total loss was $265,000.00 [73] – [81].
  • McGill J approached section 59 of the Civil Liability Act 2003 (CLA) by allowing gratuitous services for the period the plaintiff was working at the meatworks. The second defendant argued the opposite, namely if the plaintiff could work at the meatworks, he could undertake domestic and gardening work at home. However, his Honour accepted the evidence of the plaintiff and his partner that after work he was in too much pain to attend to the usual chores and ‘give and take’ of a domestic relationship. His Honour found that the seven to nine hours per week estimated by the plaintiff’s partner were consistent with Mr Scalia’s evidence [90] – [93]. More controversially, his Honour found that section 59 did not require the six month threshold of a minimum of six hours per week to be a continuous period [95]. On the basis the plaintiff had continued to work until the day judgment, his Honour found the threshold had been met and awarded $14,720.00 [96]. In line with Kriz v King [2007] 1 Qd R 327, once the threshold was met, any further care did not need to be in terms of section 59. His Honour allowed another four years at the same rate and then a further lump sum of $50,000.00 to cover future care. The total of future care was $142,000.00 [97] – [101].


[30] There is nowhere near as much personal injury litigation as there used to be, say 20 years ago. In those days it was commonplace for people who had suffered soft tissue injuries to the spine to end up in court because orthopaedic surgeons said that such injuries generally go away in a few months, and insurers jumped from that proposition to a conclusion that continuing complaints of pain were not genuine. The same arguments were frequently rehearsed, and judges generally came to the conclusion that the fact that most of these injuries resolve in a few months does not mean that all such injuries resolve in a few months, and with those that did resolve in a few months, the injured person was unlikely to end up in court. In the present case, during Dr Fraser’s first examination the plaintiff presented with nothing very much in the way of continuing symptoms. That would have supported his conclusion that the plaintiff had suffered a soft tissue injury which had by then essentially resolved. Having made that diagnosis at that time, he appears to have been unwilling to depart from it in the light of later evidence which strikes me as being inconsistent with it.

[46] In the circumstances there is no reason not to accept the evidence of these witnesses and I do so. They provide confirmation that the plaintiff in fact behaves on a day to day basis in the way consistent with his having a continuing significant problem in his neck and upper back. That is inconsistent with the notion that he is just inventing complaints when speaking to doctors, and is inconsistent with the opinion of Dr Fraser, who really has no objective explanation for any significant current symptoms. On the other hand, the evidence of Dr Maguire would explain such symptoms. In these circumstances, it is appropriate for me to prefer the evidence of Dr Maguire.

[48] I acknowledge that there are some reasons to be cautious about the credibility of the plaintiff. He admitted that he had been using illegal drugs over a period of many years (p 20), and from time to time been convicted of criminal offences in connection with such use. Indeed, at the time of the trial he was on parole as a consequence of his most recent conviction. I accept that this of some relevance, though it was not shown that he has been convicted of any offences of dishonesty. When completing a job application form to work at the Meatworks he denied having any problems with his neck or back which he said was not true, but he explained that he had filled in the form in that way because he believed that if he disclosed the existence of his neck and back problems he would not be employed. Whether or not that was the case does not matter, I consider it reasonable enough for him to have that expectation, and if he wanted to get that job it would be understandable that he would complete an application form in that way. In these circumstances I do not regard this as proof that at that time he completed the form he had no neck or back problems, and in all the circumstances I do not regard it as something of real significance in relation to his credibility.

[53] On the whole I do not think that there has been any substantial reason shown for rejecting the evidence of the plaintiff generally. When the defendant’s case was put to him in cross-examination, my impression was that by and large his answers were much more sensible than the various propositions being put to him. The complicating feature here is that the plaintiff’s main problem is pain. It is not so much that he is physically incapable of certain bodily movements, but rather that certain activities stir up his pain level, which naturally makes him resistant to those activities. If they are activities he has to persist with, for example because they are part of a job he wants to keep, he can and does persist with them as best he can, but is left with more pain afterwards, which diminishes his capacity to do other things, such as taking care of himself. All this is quite plausible, and is consistent with psychiatric problems, particularly stirring up pre-existing depression, something likely to diminish his capacity to cope.

David Cormack – Brisbane Barrister & Mediator

NB: the matter returned and indemnity costs were awarded in favour of the plaintiff –

Rook v Crofts & Anor (No 2) [2018] QDC 238


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