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Written by Peter Carter

February 26, 2015

A town planner responsible for managing landside infrastructure planning at Brisbane’s ever-expanding Kingsford Smith airport has defeated insurer Suncorp’s refusal to pay income replacement compensation for a brain injury sustained in a pedestrian crossing accident there in October 2007.
The impact amongst busy passenger set-down traffic knocked 27-yr-old Zoe Winters to the ground unconscious.
Symptoms included seizures, post-traumatic amnesia, behavioural change including aggressive trauma-induced hostility towards her husband with whom – before the accident – she enjoyed a loving and warm relationship.

She returned to work on a graduated basis in January 2008 and managed to return to full time work about 12 months after the accident, albeit with this very significant psychological and personality deficits.

WorkCover had paid for her time off work income loss and medical expenses but to recover compensation for income replacement, she commenced a lawsuit against the at-fault driver and his CTP insurer, Suncorp.

Organic brain injury was identified by neuropsychologists Lynda Troy & Brona O’Dowd and confirmed by neurologist Don Todman via MRI investigation.

Suncorp had no trouble admitting fault for the accident but baulked at her claims of about $862k for future loss of earning capacity and $260k for past wage losses.

Dr Troy attributed the personality changes – she was abrupt and aggressive in her workplace and social interactions – to the brain injury; in contrast to Dr O’Dowd who was of the view that “existing personality problems” had merely been worsened by coping with post-accident changes.

Both were of the view that -regardless – such symptoms would likely prevent Zoe functioning in high-level high-salary strategic roles that she would otherwise have gained and that she would “be relegated to technical work”.

To establish its case of pre-accident a combative and aggressive management style, Suncorp called her former manager at Sydney airport. Unfortunately for them the manager stated the opposite to what they had hoped to hear. Rather than being combative, Zoe’s dealings with subordinates had only been “direct”.

On the strength of that evidence, Justice Anthea Philippides of Queensland’s Supreme Court accepted the Linda Troy diagnosis.

She also agreed with the plaintiff’s loss calculations and after a five-day trial, ordered the insurance giant must pay her a total of $1.336 million.

That sum includes just $47k for pain, suffering and lifestyle losses.

Winters v Bishop & Anor [2014] QSC 312 Philippides J published 12/01/2015

Categories: Aviation law , Personal Injury , Litigation & Law Practice

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