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Just how much non-disclosure of an adverse prior medical history can a car accident claimant comfortably explain away?
Talitha Towell then aged 31 yrs, claimed damages for a cervical spine injury suffered in an August 2019 motor accident for which the driver of the car that collided with her had admitted fault.
Although she had notched up six prior WorkCover claims, her notice of claim declared she had suffered no prior “significant disability”.
Third party insurer Allianz naturally enough contended to Judge Ian Dearden that her declaration was false and constituted a deliberate attempt to mislead as to the extent of her accident-related injuries.
Two of Talitha’s WorkCover claims were rejected and regarded by her as being trivial. The other claims were comprised by an electrocution in 2015, a slip and fall in 2008, back pain and sciatica in 2011; and a 2009 car accident for which she had received $40,000 in compensation.
“Significant disability” is defined as an injury, illness or disability that may be relevant to the assessment of the extent of the injury; or lasted (or its symptoms lasted) for four weeks or more.
Talitha recruited spinal surgeon Robert Labrom to testify that the electrocution injuries and the pre-accident back pain and sciatica were of an entirely different pathology to those of which she complained in relation to the 2019 accident.
This view was supported by the insurer’s orthopaedic expert Professor Howard Outerbridge and by Talitha’s treating physiotherapist Benjamin Tanner, who swore his post accident treatment was for a “classic whiplash type injury” and different to that which he provided pre-accident.
On that basis four of the prior WorkCover claims were considered by the judge to fall short of what amounted to a “significant disability”.
Only the 2009 car accident required explanation which came by way of her solicitor admitting fault.
Instructing the same solicitors for the current claim as she had for her 2009 accident, Talitha had expected them to provide those particulars.
“It seems to me to be an extraordinary and regrettable oversight on the part of that solicitor, given their access to the law firm’s records,” judge Dearden observed.
As “unfortunate” as the non-disclosure was, the court was of the view that it should be excused because it was acknowledged and had in fact ben disclosed by her to both examining medical experts.
Judge Dearden rejected the insurer’s submission that the car accident claimant was an inherently unreliable witness: “On the contrary, I considered the plaintiff to be an honest and frank witness and I have no hesitation in acting upon her evidence.”
Apart from the six undisclosed WorkCover claims, there were other medical episodes that the court had to consider.
Talitha had received treatment at the Logan Hospital in 2017 and had a workplace fall after the subject car accident in January 2022.
Dr Labrom’s testimony once again saved the day. The former event, he said was only short-lived acute neck pain and the second was something “relatively benign” that did not “overtake the car related neck injury in terms of significance”.
General damages of just $15,300 were awarded based on Dr Labrom’s assessment of an ISV of 9.
A global sum for past loss of income including in relation to Talitha’s second job in childcare was allowed at $25,000 in addition to accounting for the Work Cover weekly benefits of $16,684.54.
Future loss of income was assessed on projected loss from what would otherwise have been a successful career in childcare, discounted by 33% to arrive at $150,000.
The total award was $285,000.
The case is significant in that it demonstrates the latitude a court might have in respect of non-disclosure of a pre-accident medical history. Had the plaintiff not disclosed the earlier car accident to the expert medical specialists, the court would have been unlikely to be so forgiving. It also shows the importance of asking medical specialists to address the consequences of other medical episodes on the claimant’s resulting condition.
Towell v Mooney & Allianz Australia Insurance Ltd [2023] QDC 130 Dearden DCJ, 21 July 2023
Categories: car accident