November 20, 2010

CTP insurer Allianz was last week defeated on all points in its Supreme Court denial of diminished working capacity for a 22-year-old sugar mill worker, injured in a motor accident in Ingham in October 2001.
Robert Girone sustained neck and back injuries as well as a serious right leg fracture. Allianz – represented by McInnes Wilson – admitted liability but contended for the duration of the three-day Townsville trial, that the plaintiff was a fraudster who exaggerated his injuries and fabricated a limp and muscle spasms.

In one of the many blows to Allianz, its surveillance footage was held to be so lame that it actually assisted the plaintiff. His honour inferred that had there been anything more damaging to the plaintiff to come from the surveillance, it would have been enthusiastically produced.

But in the most compelling chapter of this tale, Orthopedist Dr Toft and Neurologist Dr Cameron both gave evidence that the plaintiff had no disability at all. As did the insurer’s occupational therapist. On the other hand for the plaintiff, Dr Maguire assessed his disability at 27% and Dr Campbell diagnosed upper and lower back pathology as well as neurological symptoms in his right leg and right hand. Therapist Catherine Purse assessed him occupationally, as having poor prospects of returning to work.

Accounting for the wide gap among the two groups of experts was the insurer’s suspicion that the upper and lower back injuries were a “recent invention”. Allianz asked its experts to assume that the plaintiff had never previously complained about his upper and lower back symptoms.

In the second rebuff to Allianz, the court found this premise was plainly wrong: naturally “the focus would be on what was a very serious injury to the leg” but even so, the emergency room registrar had drawn a sketch in the chart showing the plaintiff with a back problem! Physiotherapy records also revealed early neck and back complaints.

As a result, the opinions of Dr Maguire and Dr Campbell were both robustly accepted. As for the muscle spasms not being a constant feature of the plaintiff’s condition, the court held that they were quite a likely variable, the spasms appearing on some occasions, involuntarily for no specific reason.

And in a further rejection of the insurer’s suspicions, it ruled that the plaintiff’s limp could quite understandably be present on “bad days” but not on good ones. The plaintiff had a chequered working history and his millwork was a seasonal job: for the crushing season. He had also been off work after two minor injuries at work in 2002 and 2003 and a motor accident in 2004 after which his employment was terminated.

Thus there were “many contingencies to be allowed for” in the assessment of loss of earning capacity but, in the words of His Honour “these move in both directions”. Nevertheless, the court concluded that the plaintiff had indeed sustained “substantial destruction of his earning capacity” and awarded future economic loss at $400 per week as part of the overall judgment of $661,000.

* Girone v Allianz & Denholm [2010] QSC 420

Categories: Personal Injury , Litigation & Law Practice

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