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The importance of choosing the right medical specialist to support your claim

Rodger v Johnson [2013] QSC 117

 

The Plaintiff in this case was awarded $400,566 for her claim. In assessing the award, His Honour Jackson J considered the medical evidence before him and his findings elucidate the importance of the expert evidence that is obtained to support a Plaintiff's case.

 

In this case, the evidence of Dr Journeaux was preferred to that of Dr Pentis as Dr Pentis’ reports did not comply with the Civil Liability Regulation 2003 and the neurogical evidence of Drs Campbell and Todman were preferred over the evidence of Drs Reid and Cameron. Also, His Honour was “unpersuaded” on aspects of Stephen Hoey’s evidence in relation to future economic loss and future care because it was out of date.  The award however was still significant at $400,566.00.

 

Key Facts

 

The plaintiff was almost 27 years old when her motor scooter collided with the insureds vehicle on 4 June 2009. She claimed to have suffered a fractured left wrist, a cervical spine injury, a neurological injury, post-traumatic headaches and adjustment disorder with anxiety and depressed mood. At the date of the accident, the plaintiff was employed full time as a senior conveyancer. She did not work for about 9 months post-accident and on her return to work, reduced her hours before eventually resigning. The plaintiff then obtained employment in events management working approximately 15 hours per week. The plaintiff claimed a weekly amount for future economic loss for 37 years and an additional $100,000 “for the impairment to her general earning capacity”. The defendant submitted that the plaintiff would be capable of returning to work over two years and that an additional $70,000 should be allowed for the possibility that she may not return to her pre-accident earning capacity.  

 

Decision

In the quantum only trial, Jackson J awarded damages in the sum of $400,566.37 as follows:

 

General damages

$15,200.00

Past economic loss

87,451.50

Interest on past economic loss

4,920.87

Future economic loss

203,294.00

Past superannuation

7,870.63

Future superannuation

22,972.00

Past care

0

Future care

5,000.00

Fox v Wood

2,940.00

Future treatment

32,385.45

Special damages

17,858.23

Interest on special damages

673.69

Total

$400,566.37

 

His Honour accepted that the plaintiff suffered a soft tissue injury to her neck and that her migraine headaches were a symptom caused by the accident. Jackson J noted that it was obvious that the plaintiffs ability to function would be affected by her headaches and neck pain. His Honour did, however, state that he was left with a suspicion that the plaintiffs inability to recall some matters might have been intended to illustrate her “very poor” memory. Jackson J proceeded on the basis the plaintiff suffered some difficulties with concentration and memory but the extent to which they would impact on her ability to function in employment was speculative. His Honour found that the plaintiff had an ongoing loss of future earning capacity which would decrease into the future by an uncertain and unclear amount.

 

General damages

His Honour found the moderate cervical spine injury to be the dominant injury with a 25% uplift for the multiple injuries to ISV 13. His Honour stated that Dr Pentis reports did not comply with s 11 of Schedule 3 of the Civil Liability Regulation 2003 and over-assessed the extent of the plaintiffs ongoing impairment. As a result, His Honour applied s 12 of Schedule 3 of the Civil Liability Regulation 2003 and gave greater weight to the assessment of Dr Journeaux. Jackson J preferred the evidence of Drs Todman and Campbell to that of Drs Reid and Cameron as their opinions were inconsistent with the finding that the plaintiffs headaches were caused by neck pain.

 

Interest on past economic loss

The plaintiffs written submissions took into account Centrelink payments when calculating interest on past economic loss, although the defendants submissions did not. His Honour did not deduct the Centrelink payments from past economic loss when calculating interest on the basis that the defendant had not.

 

Future economic loss

His Honour awarded $203,294 or $350 per week for 37 years to age 67 discounted by 35%. The assessment was based on full-time earnings as a conveyancer of $750 per week less the average post-accident earnings of just over $400 per week.

 

Care

Jackson J assessed damages for past care at nil as he did not consider that the s 59(1)(c) threshold was met. His Honour considered that the mothers evidence was exaggerated and suggested that the plaintiffs clothes were washed separately. Jackson J also found that the care was not “necessary”. In relation to future care, His Honour did not accept Stephen Hoeys opinion as it was not accurate or up to date when prepared and at the time of trial 18 months had passed without further review. His Honour also noted that there was little or no objective evidence which supported the plaintiffs claim. Jackson J accepted the defendants submission that a global amount of $5,000 should be allowed to recognise that the plaintiff has some ongoing impairment as regards heavy domestic tasks.

 

Future medication and treatment

His Honour stated that the “evidence was extremely unsatisfactory” as there was no evidence that all treatment and medication would be required to the end of the plaintiffs life expectancy. In particular, osteopathic treatment was not supported by any medical evidence which Jackson J considered to be a “serious omission” given the potential to overlap with other treatments.


 

Costs The parties agreed on the costs orders. The defendant was ordered to pay the plaintiffs costs on a standard basis on the District Court scale up to and including 16 August 2012 with the plaintiff to pay the defendants costs from 17 August 2012 on the Supreme Court scale.

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