Lewin v. Gould [2014] QDC231
In a recent Queensland District Court decision of Farr SC DCJ, a number of factual inaccuracies in the evidence of the infant Plaintiff’s medical expert resulted in a finding that the symptoms were unrelated to the accident and a nominal award was made of $2,483.24, representing general damages, special damages and interest only. The Defendant conceded that the Plaintiff had sustained a soft tissue injury to the cervical spine but the duration of that injury and the extent of any residual symptoms was in dispute at Trial.
The orthopaedic evidence was from Dr John Pentis and Dr Simon Journeaux. Both accepted there was an initial musculoskeletal soft tissue injury, however their opinions differed as to whether the Plaintiff continued to suffer the effects of such an injury.
The Court noted that it was apparent that Dr Pentis had formed the impression that the Plaintiff had one to two weeks off school after the accident; she had headaches which he assumed were associated with her neck pain; she returned to some limited participation in physical education classes; she decreased her involvement in dance lessons in 2014; and she had x-rays and physiotherapy shortly after the accident for acute pain. Each of those assumptions was found to be incorrect.
Judge Farr also noted that it was of relevance that Dr Pentis had not practised orthopaedics since the early 1990’s and he had no particular speciality in paediatric orthopaedics when he did practice. On the other hand, Dr Journeaux noted the low velocity collision; the absence of medical treatment being required; the very little medical documentation of ongoing significant symptomatology; and the high prevalence of neck and back pain in school children often being related to poor posture and the carrying of heavy backpacks in a non-ergonomic way. Judge Farr noted that Dr Journeaux was an experienced Orthopaedic Surgeon with current clinical experience in both public and private practice at the Mater Health Services working at both the Adult and Children’s Hospitals.
His Honour concluded that the incorrect factual assumptions made by Dr Pentis seriously eroded the reliance which could be placed on Dr Pentis’ evidence. When that was considered together with Dr Journeaux’s more relevant experience as a paediatric trauma surgeon, Judge Farr had “little hesitation in preferring Dr Journeaux’ evidence. Of course, his evidence must be considered in light of all other evidence. More importantly in that regard is the evidence that the Plaintiff allegedly continued to suffer some periodic discomfort from the neck injury for the months following the accident before it worsened.”
His Honour concluded that Dr Journeaux had taken all relevant considerationsinto account and was not satisfied, on the balance of probabilities,that the Plaintiff’s current symptomatology was related to the subject accident. He further accepted that the Plaintiff’s symptoms settled within a period of two to three months.
With respect to economic loss, His Honour was not satisfied that the Plaintiff had satisfied the test in s.55 of the Civil Liability Act. Given the Plaintiff’s ambitions and academic potential there was no reason to think she would be unable to realise her goal of undertaking University study. He formed the view the Plaintiff was unlikely to suffer economic loss in any of the fields of employment she was likely to choose.
No allowance was made for future paid care on the grounds that the Plaintiff did not meet the threshold and that the expert evidence was that the Plaintiff was likely to be able to manage domestic tasks simply by pacing herself.
Accordingly, His Honour awarded a total of $2,483.24 in damages.
