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Written by Peter Carter

October 19, 2011

Bitter as they were over the trouncing of their case that mill worker Robert Girone had fabricated his motor accident injury symptoms, Allianz took the case on appeal to resurrect the view of orthopaedic surgeon Dr Toft that his limp and muscle spasms were fictional.
Awarded $661,000 at trial in November 2010, Allianz contended that at least a half-million dollars should be deducted and that the true measure of loss was a mere $150,000. At trial, the insurer was so embarrassed by its “gotcha” video that the trial judge thought it was a benefit to the plaintiff’s case rather than be anything adverse.

The video and Dr Toft’s opinion – that went against more convincing opinions of other specialists and plausible explanations from Girone himself – found no better favour on appeal. Their honours were entirely satisfied that the differing medical views were adequately and comprehensively canvassed on the occasion of the first Allianz defeat.

Thus there was no basis for interfering with the foundation of the trial judge’s assessment – Allianz failed on the most substantial plank of its appeal. The appeal judges did decide however to re-formulate the past and future economic loss components of the award. They re-examined the evidence on the duration of the North Queensland sugar crushing season which they decided was as short as 20 weeks per year.

At trial, the plaintiff’s version was the season extended for 24 – 26 weeks from June to November.

The plaintiff’s shorter annual income-earning period necessitated a re-calculation of his average weekly income loss – his history was only to have worked in the sugar season – from $450 net per week (past) and $400 (future over the next 25 years) to $350 and $300 respectively.

This revised the total verdict to $521,000. Still a worthwhile day in the field from the insurer’s point of view.

Allianz Australia Insurance Limited v Girone [2011] QCA 245 Muir JA and Margaret Wilson AJA and Fryberg J 20/09/2011 

Categories: Personal Injury , Litigation & Law Practice

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