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Written by Peter Carter

February 21, 2013

The extent of injury to a Mackay medical receptionist whose Holden Astra was wiped out by an oncoming vehicle that turned right through an intersection across her path in May 2010, was clouded by secret video footage that showed, it was claimed, she was a faker.
Vikki Silvester’s case trial was that she suffered constant headaches, neck pain extending down her arms and low back pain all of which escalated to an extreme level for three “bad” days each month. A detailed description of the features and deficits of a “good day” and those of a “bad day”, were set forth in a written “quantum statement” tendered at the start of her testimony in the three-day trial.

She required painkillers daily and could not resume employment as a reception supervisor at a Mackay medical clinic. Her husband had since the accident assumed the role of “doing pretty much everything about the house”.

The gotcha videos –shot in May and September 2011 over a number of days – depicted her socialising, shopping and moving about “reasonably quickly without any discomfort … without demonstrating any obvious indication of pain or stiffness”. There was even film of her and her husband attending an evening rodeo with no signs of apparent discomfort and no hesitation in leaping down the bleach steps when leaving.

Specialist Ulrich Dörgeloh for Suncorp considered the surveillance footage to depict a “significantly different” presentation in terms of the range of movement and pain, to that which he had observed in the clinical context.

The same view, but to a lesser extent, was taken by the plaintiff’s own specialist, John Pentis. But both doctors agreed that the symptoms could vary in intensity from day today. In yesterday’s judgment, the court saw need – as a result of the video – to “be cautious before acting upon the plaintiff’s account of her pain” and prompted the finding that “her presentation in court did not truly reflect the extent to which the injuries affect her”.

His Honour was nevertheless impressed with both experts and concluded there was significant symptomatology representing a 40% restriction in her future work capacity. Past loss of income was assessed at $90,000 and for the future, $166,000.

The court also accepted that there was an average 7.5 hours per week gratuitous care provided by Vicki’s husband in respect of “heavier household tasks”, notwithstanding reservations “about the reliability of the plaintiff’s evidence”.

Past care was allowed at $23,000 and for the future, $24,000. Vikki’s total award was $378,000. Quite likely a good day.

Silvester v Husler & Suncorp Metway Insurance Limited [2013] QSC 026 Townsville North J 20/02/2013

Categories: Personal Injury

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