Rear end collision causes whiplash injuries
On 19 February 2016, the Supreme Court at Rockhampton handed down an award of nearly $1.3 million dollars to a gentleman called Mr Martin.
He sustained whiplash injuries to his neck and back in rear-end collision motor vehicle accident on the Peak Downs Highway, near Claremont in July 2011.
Mr Martin’s Land Rover motor vehicle was hit from behind at speed by a following vehicle, and shunted into the car in front.
Mr. Martin sustained significant jarring of his body and suffered whiplash injuries.
That Mr Martin had suffered whiplash injuries in the accident was not in dispute.
However, what was in dispute was the extent and impact of those injuries and the quantum (value) of the compensation claim.
Personal and work history of plaintiff
The CTP insurer of the at-fault driver was AAI Ltd (Suncorp Metway Insurance) who had admitted liability for the accident. Mr Martin was 40 years of age at the time of the car accident and 44 years of age at the time of the trial.
He had only previously worked in heavy manual employment and had qualifications as an electrical fitter, mechanic and linesman, with a history of working within the mining industry where he had gained his qualifications.
Prior to the accident, Mr Martin had a history of 20 years of consistent work, apart from a period of 10 months when he upgraded his qualifications to include high voltage work.
When he wasn’t working, Mr. Martin worked on the family farm.
Eight months prior to the accident, Mr Martin had commenced his own business and gained a lucrative contract undertaking high voltage work at the mines earning over $2,000 per week.
This all ended following his car accident in July 2011. Evidence was given at trial that Mr Martin was considered a hard worker and was well respected within his field.
Neck and back injuries prevent return to employment
Mr Martin complained of neck and back injuries following the motor vehicle accident, and he was found to have sustained a disc protrusion at L5/S1 impinging the thecal sac following an MRI in November 2011.
Mr Martin attempted to return to his work as a high voltage electrical technician following the accident. However such work involved heavy lifting of 20 kgs and more, as well as awkward positioning, which no longer suited his injuries. He was therefore unable to maintain such employment.
Plaintiff living in a tent
Following the accident, Mr Martin could not meet his financial commitments because he was unable to return to his employment and could not afford retraining. He consequently had to sell his car and the family farm and was in debt to the Australian Taxation Office.
He used up his pre-accident savings and had relied on income protection payments and a hardship payment from his superannuation fund before going on Centrelink payments. At the time of the accident, Mr Martin was living at no fixed address and resided in a tent.
Arguments of the CTP Insurer and surveillance video
The Defendant raised the argument at the trial that Mr Martin was exaggerating his injuries, although it did not go so far as to allege fraud. The Defendant obtained surveillance of Mr Martin pitching his tent in the days leading up to the trial.
They alleged that the surveillance showed Mr Martin moving freely, bending and squatting without difficulty, inconsistent with his complaints of constant severe pain.
Back injury was not related to the accident
The Defendant also argued that the back injury was not related to the accident due to the delay in Mr Martin’s complaints of lower back pain following the accident.
The Defendant further alleged that Mr Martin could have returned to his work as a high voltage electrical linesman within six months of the accident and had failed to mitigate his loss.
It further considered that the failure of Mr Martin to purchase a motor vehicle to assist him in locating employment was also evidence of a failure to mitigate his loss.
Medical evidence regarding whiplash injuries
The Court heard evidence from Dr Scott Campbell, Neurosurgeon, who testified for the Plaintiff. Dr Campbell testified that he considered the MRI showed degeneration of the lumbar spine normal for a 40 year old man, and did not consider that it showed any abnormality.
He diagnosed the Plaintiff as suffering whiplash injuries as a result of the accident, namely musculo-ligamentous soft tissue injuries to the back and neck. This resulted in a 7% whole person permanent impairment (WPI) in relation to his back, and a 3% WPI in respect to his cervical spine injury (solely for pain).
However, after viewing the surveillance video at the trial, Dr Campbell reassessed the WPI for the lumbar spine at 5%. Dr Campbell considered that the Plaintiff would be unlikely to return to his previous employment with his injuries.
Abnormality seen on MRI was from the accident trauma
Dr Halliday, Orthopaedic Surgeon, gave evidence for the Defendant where he considered that the abnormality seen on MRI was from the accident trauma.
However, he gave an impairment rating of 5% for the Plaintiff’s lumbar spine injury, and a 0% WPI for the cervical spine injury.
He gave evidence that he believed the Plaintiff could return to work as an electrician, although not to the heavy work he was performing at the time of the accident.
Plaintiff had pain on lifting items around the 20kg mark
However, during testimony, Dr Halliday conceded that the Plaintiff would not be able to get into awkward places or carry heavy items like air conditioners usually required of domestic electricians.
Evidence was also given by Ms White, Occupational Therapist, for the Defendant. She provided testimony that in her view, the Plaintiff could return to his pre-accident employment, despite the finding on her review that the Plaintiff had pain on lifting items around the 20kg mark, which was required in his work.
Helen Coles, Occupational Therapist who testified for the Plaintiff, considered that the Plaintiff would not be able to return to his pre-accident employment, was prejudiced by his injuries in the open labour market, and realistically was unlikely to return to gainful employment in the future.
Findings of the court in this whiplash case
Findings Of The Court After considering all of the evidence, His Honour Justice McMeekin found as follows:
- He considered that the Plaintiff was a hard worker prior to the accident, and was likely to have continued in that manner into the future but for the accident.
- He found the Plaintiff was a credible witness at trial. He considered that the surveillance video shown by the Defendant did not negate the Plaintiff’s claims that he suffered neck and back pain, but he did consider it showed that he did not suffer it to the extent alleged, being constant severe pain. His Honour considered that the Plaintiff did not suffer constant severe pain as he reported, but did accept that he suffered pain with certain activities which the Plaintiff avoided for fear of experiencing pain.
- He did not accept the Defendant’s proposition that there had been a delay in the reporting of back pain, and referred to reporting of back pain in the hospital records following the accident. He accepted that the Plaintiff’s focus on neck pain immediately post accident did not mean he did not suffer a serious back injury in the accident, but accepted that the neck pain may have been more dominant at that time. He also referred to ongoing complaints of back pain by the Plaintiff following the accident, which eventuated in the MRI in November 2011.
- He accepted the evidence of Dr Halliday that the MRI did show an abnormality at the L5/S1 disc level and it was as a result of the accident.
- He accepted that the Plaintiff’s back injury resulted in a WPI of 5% and agreed with Dr Halliday that the more appropriate assessment of the cervical spine injury was 0% WPI given it was upon the reporting of pain by the Plaintiff.
- He did not accept the evidence of Ms White or that of Dr Halliday that the Plaintiff could return to his previous employment, but preferred the evidence of Ms Helen Coles and Dr Campbell that this was unlikely.
- He considered that the Plaintiff did have a residual earning capacity undertaking lighter employment, and upon work hardening he would be able to work full time in such work.
- He did not accept that the Plaintiff had failed to mitigate his loss as he was unable to return to his previous work due to his injury, and it was unreasonable to claim that he should have used his limited funds post accident to purchase a new vehicle. He also considered that the Defendant had failed to provide evidence to the Court as to what other employment the Plaintiff was able to perform and which was available to him. Further, the Court pointed to the fact that the Plaintiff had lost everything that he had held dear as a consequence of being unable to work since the accident, including the family farm.
Assessment of damages in this whiplash case – compensation awarded by the court
His Honour then assessed whiplash injury compensation and damages as follows:
General Damages
General Damages is compensation for pain and suffering and loss of amenities of life caused by the motor accident injuries sustained. Justice McMeekin considered that Mr Martin’s back injury fell within Item 93 of the Schedule of Injuries at Schedule 4 of the CLA Regulations, being a moderate lumbar spine injury, and had an ISV rating of 8.
He uplifted this ISV rating having regard to the cervical spine injury, increasing the ISV to the highest end of the scale under Item 93, to an ISV of 10. He accordingly awarded $13,350 for General Damages. This finding was in line with the Defendant’s assessment of General Damages.
Future Medical Expenses
The only claim made was $2,000 for future pain medication. The Defendant argued against this on the basis that the Plaintiff had received little by way of treatment in the preceding years to trial, but the Court considered the award reasonable.
Past Special Damages
This was agreed between the parties at $2,723.80.
Past Economic Loss
In making this award, the Court did not accept the Defendant’s claim that Mr Martin could have returned to his pre-accident contract at the mines within six months of the injury. The Court also found the Defence failed to provide any evidence of what work the Plaintiff was actually now suited to with his injuries and the earnings he was capable of earning in such work.
He awarded past economic loss on the basis of the Plaintiff’s earnings pre-accident, but discounted for the possibility of work not being consistently available to him (he was on a contract when the accident occurred), and for contingencies of life over the period since the accident. The Plaintiff had sought an award of $496,000 for past economic loss but the Court awarded $400,000.
Future Economic Loss
The Court considered that the Plaintiff was not able to return to his previous employment with his injuries, but he did have a capacity for residual employment in lighter work, with retraining, and with work hardening he could work full time in such employment.
He calculated future economic loss on a loss of $1,800 per week to age 60 years, when he believed the Plaintiff would be moving out of the heavier work that he was doing pre-accident in any event, and then reduced this by 25 to 30% for contingencies and for residual earnings in alternate employment. His Honour awarded $750,000 for future economic loss.
Retraining Costs
The Court rejected the claim by the Plaintiff for funding of a science degree so that the Plaintiff could eventually teach science as an alternate career. His Honour considered that it was not reasonable to expect the Defendant to meet this claim at over $20,000, as there was alternate employment open to the Plaintiff without such retraining.
Past And Future Loss Of Superannuation
The Court allowed some past superannuation loss, accepting that the Plaintiff was likely to return to employed work at times in between contracts. This was allowed at $17,000. Future lost superannuation was on the basis of 10.15% to 2032, being the average rate over the period taking into account the legislated increases to occur in the future.
The Court’s award in total came to a sum of $1,282,572.10.
To view this case in its entirety and learn more about lodging a claim for whiplash injury compensation, click on the following link : John Alfred Martin v Andres & AAI Ltd [2016] QSC 20 and learn more about lodging a claim for whiplash injury compensation. Chat, email or call and we’ll be happy to answer any Whiplash questions you may have.
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