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Reduced life expectancy of Plaintiff - Kilner v Turner & Anor [2012] QDC unreported, 31/09/12, Samios DCJ

Kilner v Turner & Anor

[2012] QDC unreported, 31/09/12, Samios DCJ

Quantum – 53 year old tyre fitter – orthopaedic and psychiatric injuries – life expectancy shortened due to unrelated health problems – criminal history – credibility unsuccessfully challenged at trial.

Key Facts

The plaintiff was injured as a passenger in a motor vehicle accident on 12 March 2009. The plaintiff brought a claim against the insurer for the negligence of its driver. Liability was not in dispute.

The plaintiff was 50 years old at the time of the accident and 53 at trial. The plaintiff allegedly suffered the following injuries in the accident:

(a) soft tissue injuries to his neck (admitted);
(b) soft tissue injuries to his right shoulder (admitted);
(c) an injury to the right knee (denied);
(d) major depression (denied); and
(e) adjustment disorder with anxiety and depressed mood (denied).

The plaintiff also claimed to have increased weight and to have increased his consumption of alcohol since the accident. He weighed 144 kg at trial.

The insurer argued that the right knee injury was the result of a subsequent accident on 21 August 2009 and that any psychiatric condition was also unrelated. The plaintiff had a number of unrelated pre-existing and subsequent conditions including:

(a) liver cirrhosis and other problems caused by previous Hepatitis C infection (allegedly due to a needle stick injury in an ATM robbery);
(b) Osteoarthritis of his cervical spine;
(c) Abdominal hernia;
(d) Chronic chest infection and respiratory distress secondary to chronic obstructive pulmonary disease; and
(e) Kidney problems. 

Decision

While mindful of the plaintiff's criminal history, Samios DCJ accepted the plaintiff's evidence as truthful. He noted that the plaintiff had appeared distressed at times while giving his evidence and his Honour considered that this was genuine. Samios DCJ considered that any inconsistencies in the plaintiff's evidence were more likely to be misunderstandings. He acknowledged that the plaintiff's evidence was unreliable in parts but did not think it was intentionally misleading.

Samios DCJ did not accept allegations that the plaintiff had been working post accident. For example, when the plaintiff turned up to a medico-legal appointment dressed in a fluorescent garment of the type workmen wear, Samios DCJ accepted the plaintiff's explanation that the plaintiff did not feel safe walking across the street and that he wore the garment to protect himself from cars.

Samios DCJ accepted the evidence of the plaintiff's experts (Drs Pentis and Lotz) over that of the insurer's experts (Dr De Leacy and Dr McPhee).

Samios DCJ accepted that the plaintiff suffered the following impairments:

  • Neck: 6% – 7% WPI in addition to his pre-existing condition;
  • Right knee: 12% – 15% WPI of which 1/3 is accident related; and
  • Right shoulder: 7.5% – 10% WPI of which 1/3 to ½ is accident related.

Further, Samios DCJ accepted that the plaintiff was suffering, by reason of the accident, from major depression and alcohol abuse disorder (in remission). He also accepted that the plaintiff had an unfavourable prognosis because of his reluctance to engage with either a psychologist or psychiatrist.

Samios DCJ found that because of the accident, he has been unfit to work as a tyre fitter since the accident and will remain so in the future. His Honour found that, despite the plaintiff's pre-existing injuries, the plaintiff could have continued to work as a tyre fitter but for the accident. Further, Samios DCJ found that, on account of the plaintiff's accident related psychiatric injuries, he could not sustain any employment for remuneration.

Samios DCJ accepted the evidence of the plaintiff's GP and Suncorp's expert, Dr Ringrose, that the plaintiff's life expectancy has been shortened because of his obesity, severe chronic obstructive pulmonary disease and cirrhosis of the liver. His Honour considered that the plaintiff would struggle to lose weight and refrain from drinking alcohol and smoking in the future. Samios DCJ accepted the evidence of Dr Ringrose that the plaintiff would only live to age 60 – 65. Consequently, he allowed only 7 years of future loss. His Honour gave judgment as follows:

General Damages 1  - $45,000.00

Special Damages   -  $2,277.05

Interest - $17.65

Past economic loss 2 - $104,743.08

Interest 3 - $3,654.08

Fox v Wood -  $2,783.00

Future economic loss 4 - $200,000.00

Past superannuation - $9,426.88

Future superannuation - $18,000.00

Future medication 5 - $3,094.00

Future psychiatric treatment - $7,800.00

Total  - $396,795.74


This is the now the subject of an appeal.

 

1 - Dominant injury is serious mental disorder ISV 25 uplifted to ISV 30 for multiple injuries

2  - 3 years x $671.43 / week (effectively 13.6% discount due to pre-existing health problems)

3  - Allowed on $54,846.49 (after deduction for statutory refunds) at 1.92% for 3.47 years

4  - $671.43 for 7 years (5% multiplier = 309.4) rounded down by $7,740.44

5  - $10 per week for 7 years (5% multiplier = 309.4)

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