Foster v Carter & Anor  QSC 135 Mullins J 28 June 2017
Karen Foster was in control of the bus when it was hit by an out of control Holden Commodore on a traffic roundabout in September 2014. A bus driver who “exaggerated” the force of a traffic accident and the extent of her injuries has been awarded substantial damages by a Brisbane court.
Jade Carter had driven through the roundabout and collided with the rear of the 9 tonne bus before ricocheting onto the median strip. Foster sustained a neck and back injury by “holding the steering wheel trying to control the bus to make sure it didn’t come out of control”. The impact was recorded on CCTV footage in the bus. Rather than the “very heavy” impact that shunted the bus at least “half a metre” sideways alleged by Foster, the video showed her “moving slightly in her seat and steering the bus closer to the curb before stopping”.
According to Justice Debra Mullins in Queensland’s Supreme Court, “the movement of the bus and the plaintiff’s immediate reaction” was indicative only of “a slight shudder”. Shaken, her neck pain started quickly and lower back pain developed later that night.
Foster visited her GP frequently over the following weeks and was referred to physiotherapy and hydrotherapy. The 50-yr-old already had a significant prior shoulder injury and some spinal degeneration.
Justice Mullins concluded that Foster’s “own perception of the limitations she suffers” far exceeded that established by the medical opinion. Because of such “obvious exaggeration” Carter’s CTP Insurer argued future economic loss damages should not exceed $75k. Justice Mullins disagreed that such a low figure should apply and went on to order loss of earning capacity damages on the basis that any return to work during the remaining 10 years of her working life was very unlikely .
The award after discounting was a total of $270k for that 10 year period calculated on the basis of $980/week net lost.
The accident occurred while Foster was driving the bus in the course of her employment. She received workers compensation payments. She thus contended for damages at common law rather than as confined by the Civil Liability Act, arguing she fell within the CLA s 5(1)(b) exception. The court had difficulty with that proposition. “The plaintiff’s statement of claim is a classic pleading for injuries sustained in a motor accident,” the judge wrote in her 20 page judgment. “There is no pleading of any circumstances that can be characterised as the ‘exigencies of the employment of the worker by the employer’ ”.
Concluding that a common law assessment was not open, the court went on to award general damages at just $21k. Neurologist David Johnson assessed her accident related whole person impairment at 6% for her cervical spine and a further 6% for her lumbar spine. His colleague Dr Weidmann disagreed, returning zero assessments for both in alignment with occupational physician Tim Anderson who considered the injuries to be largely related to her “very poor lifestyle with her smoking, being overweight, very deconditioned and with a lack of reasonable physical activity.”
Orthopaedists John Walters and Paul Pincus concurred at 5% for the cervical spine and 1% or less for the lumbar.
In the face of those diverse opinions, the court adopted Dr Johnson’s 6% for the neck injury but attributed a nought to the lower back complaint. She also allowed 6% for an adjustment and pain disorder as attested by both psychiatrists, Petros Markou and John Chalk.
The plaintiff’s care claim, $18k for past care and $45k for the future, was also allowed making up a total award of $540k.