Written by Peter CarterUpdated on July 20, 2020
A struck-down pedestrian has sued a national law firm for allegedly advising her to “under settle” her spinal injury compensation claim.
Natalie Manasse was hit by a bus while walking along Sunshine Beach Road at Noosa Heads in March 2009.
She hired a Hervey Bay law office to pursue bus accident compensation against QBE as CTP insurer for neck, back and psychological injury. That law firm transferred the conduct of the litigation to Shine lawyers which was undertaken by its Maroochydore team.
The medical investigation of Natalie’s injuries was complicated by an MRI of her lower back performed in August 2009 reported on as “normal” whereas one performed in October 2010 imaged a significant disc injury.
Shine – with the assistance of a barrister of 32 yrs standing – advised Natalie to settle the claim at a mediation in Brisbane in June 2012 for $150k plus standard costs.
Just short of six years after that settlement was agreed, Natalie filed a claim in the Supreme Court at Rockhampton seeking damages against Shine for $737k for what she claims to be the amount by which she was short changed by following Shine’s advice.
If an “independent” radiologist had been retained – Natalie alleges – to further review the August 2009 MRI films, that specialist would likely have detected the disc injury in those images just as the subsequent radiologist had been able to do in October 2010.
That omission – and Shine’s failure to obtain a supportive psychiatric report – meant she was in a far worse negotiation position when at the mediation.
Certainly, armed with the medical evidence she says ought to have been obtained, she would not have accepted – so runs her argument – the law firm’s advice to settle for just $150k.
Given the accident occurred elsewhere and none of her former legal team have any connection to Rockhampton, Shine applied to have the case transferred to Brisbane.
After all, it would be necessary for Shine to call testimony from numerous SEQ based witnesses – including radiologist James Challen from the Sunshine Coast, Brisbane orthopaedic surgeon David Morgan and Mater Private neurologist Martin Wood – not to mention the legal practitioner involved and the senior Brisbane barrister.
On the other hand Natalie’s solicitor, expert radiologist Joe Putnam and orthopaedic surgeon Adriaan Smith, are all located in Rockhampton. Her other witness, psychiatrist Michael Likely practises in Townsville.
One would have thought that on those numbers, the balance of convenience favoured the trial being held in Brisbane.
Maybe so, but it having been commenced in the central Queensland city, the onus was on Shine to establish that the balance of convenience and expense of the trial favoured the transfer it argued for.
Shine was unable to clear that hurdle for two main reasons. Firstly, the expert evidence rules require testimony to be given to the court by audio / visual link and that oral evidence only be allowed if the court makes an order to that effect.
Thus the location of expert medical witnesses was neutralised as a factor in the calculation.
And surprisingly an earlier trial date could be achieved if the matter was kept in Rockhampton rather than being sent to Brisbane.
Having regard to those two factors Justice Graham Crow dismissed Shine’s application. “I am not satisfied that Shine has demonstrated that the proceeding can be more conveniently dealt with at Brisbane rather than at Rockhampton,” he ruled.
Natalie’s dispute as to bus accident compensation arising out of an accident in Noosa, conducted by lawyers on the Sunshine Coast and mediated to a settlement in Brisbane will – as a result of the ruling – be adjudicated in Rockhampton.