May 31, 2012

A $1.28 million damages claim was rejected last week amid controversy over the extent to which video surveillance evidence contradicted a plaintiff’s testimony as to the seriousness of his motor accident-related neck and back injuries.
Suncorp, the rear-ender’s insurer, conceded liability but sought to limit Ben Vowles’ damages by capturing him on DVD over a period of 12 months on 27 separate days. The insurer obtained a secret pre-trial suppression order and confronted both medical specialists with it in the absence of the plaintiff and his lawyers.

The trial court was not convinced however that the vision detected what Suncorp claimed it to show. Although surveilled for more than 34.5 hours, only 3.5 hours of footage was considered worth recording.

Dr Prue Fitzpatrick – of the Medilaw stable –  was sufficiently shaken by the revelation to recant her reported opinion and now say that Vowles suffered no accident-related deficit. He was fully recovered, she said and could return to his heavy pre-accident role as an industrial electrician working up to 12 hours daily.

Dr Scott Campbell was more circumspect but even he resiled from his previous written assessment to some degree.
His honour ruled amongst this Suncorp sponsored flurry, that the vision was more or less corroborated how the plaintiff had described his “good day – bad day” symptoms and was critical of Fitzpatrick “evidently taking the view that because no restriction was evident on the days filmed, it necessarily follows that no restriction exists”.

Fitzpatrick had identified – to justify her reversal – only five occasions in the 3.5 hours of DVD vision, of exertion at the extremities of the reported range of physical restriction and according to the court, her view that “this equates to a necessary rejection of his assertion that he has back pain” was simply not made out.

In a further broadside, his honour ventured that – without evidence that their training gave them superior expertise – medical practitioners had no greater skill “in assessing the likelihood .. of a stoical man, long accustomed to his condition, inevitably demonstrating through grimaces or alteration to posture or gait or in some other way the presence of pain” than any layperson, himself included.

The shaky video was nevertheless a successful strategy for Suncorp as it effectively rendered the plaintiff’s claim – that he was henceforth unemployable as an industrial electrician – no longer tenable. The court allowed in the end, only a 15% loss of his pre-accident earning capacity of $2,100 net per week.

Future income loss was rounded out at $250,000, out of total damages of $450,000.

In a subsequent costs argument, Vowles’ advocates slammed the making of the secret suppression order as a “manifest injustice insofar as it concealed from the plaintiff, the [altered] opinion of the plaintiff’s own expert”, Dr Campbell.
Suncorp had – they claimed – dishonestly concealed facts that ought to have been put before the judge who made the prior covert ruling.

Had they been aware of the specialist’s changed opinion, the lawyers contended they could have made appropriate offers and potentially have avoided all of the costs of the trial.

These protests went unrequited but Suncorp’s somewhat impudent retort that the plaintiff should pay its legal costs of obtaining the clandestine order was  – due to the failure of the documentary video establishing any patent dishonesty – put down by the court with deserving disdain.

Vowles v Osgood & Anor [2012] QSC 082 Rockhampton McMeekin J published 21/05/2012

Vowles v Osgood & Anor (No 2) [2012] QSC 126 Rockhampton McMeekin J 21/05/2012

Categories: Personal Injury , Litigation & Law Practice

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