June 20, 2020 | 428 ViewsInjured cyclist loses sea legs: Judge pans “purportedly objective” medical expert in $644k win

A cyclist who swerved to avoid a vehicle exiting a designated parking bay on a wide Townsville thoroughfare has been awarded substantial damages for injuries he sustained by falling to the roadway.

Alan Zavodny slowed his bike as he approached the row of nose-in parking bays at the front of a popular party hire store on McIllwraith St.

At the same moment Kevin Couper was preparing to reverse his Holden Colorado out of one of the bays.

As the Holden moved backwards, the cyclist swerved hard right to avoid an impact, jack-knifing the bike and falling hard to the bitumen.

That was in September 2014.

The 59-yr-old fishing charter captain had a recovery complicated by infection and several hospitalisations.

He was left with diminished capacity for prolonged standing, climbing, bearing weights, and working in confined spaces.

All attempts to return to fishing charter roles were unsuccessful because he had lost the “sea legs mariners’ need to move and climb about a moving vessel effectively, including over, up and down damp decks, gunwales, steps and ladders”.

Fast forward to November 2019 when the protagonists and numerous expert witnesses came before Justice Jim Henry for the adjudication of Zavodny’s injury compensation claim in the Supreme Court in Cairns.

Couper’s insurer conceded negligence in causing the injuries but asserted the injured cyclist himself bore a significant share of blame for riding too fast and failing to keep a sufficient look-out in the direction of the parked vehicles.

There was no evidence to support the insurer’s suspicion as to the cyclist’s excessive speed or inattention.

There was no evidence that the injured cysclist was travelling too close to the rear of parked cars. Neither did His Honour accept that he was required to ride his electric bike in the centre of the westbound carriageway rather than to the left.

“Riding to the left conformed with his legal obligation under s129(1) Transport Operations (Road Use Management—Road Rules) Regulation 2009 to ride as near as practicable to the far left side of the road,” Justice Henry ruled.

And accepting that the Holden had been reversed out suddenly as opposed to “creeping slowly out so as to provide some indication to reasonably attentive road users”, he was not prepared to deal out any share of the blame to the cyclist.

QBE’s main assault in the four-day contest was however reserved to its attack on the extent of disability the cyclist claimed had resulted from the injuries to his left shoulder, ankle and foot.

It relied on the opinions of three medical experts in an attempt to paint the injured cyclist’s several unsuccessful trial fishing charters in Western Australia as evidence of his unrestricted capacity to earn income in that field.

Orthopedist Dr John Fraser provided an assessment of Zavodny’s residual ankle impairment at just 1% as opposed to those of his colleagues Ronald Thomson (10%) and John Maguire (11%).

Psychiatrist John Chalk measured the resulting adjustment disorder at 4% as against that of 15% from colleague Dr Riccardo Caniato.

His Honour observed that both Drs Fraser and Chalk “curiously held a similar misunderstanding” that Zavodny had only been kept away from his fishing charter work by the lack of available work.

“It is difficult to avoid the impression that Dr Chalk’s misunderstanding in that regard may have led him to express an unduly robust opinion about Mr Zavodny’s ability to return to his former field of employment”.

But his honour’s greatest displeasure of the evidence adduced by the insurer was left for the occupational therapist it had recruited to the contest.

Ms Sanja Zeman swore Zavodny had “an ongoing capacity for employment on a full-time basis as a ship’s captain with no loss of earning capacity”.

“That opinion was not credible,” Justice Henry decided.

Zeman refused to retreat from that opinion notwithstanding having very obviously mistaken attempts by the plaintiff to perform gym exercises with successfully and regularly performing them at high repetition.

She also mistakenly disqualified him to act as a ship’s captain on the grounds of failing eyesight notwithstanding that when wearing glasses Mr Zavodny’s visual acuity met the requisite standard.

“This may have simply been an oversight or error by Ms Zeman which, like her error regarding the high intensity interval training, happened to support an opinion adverse to Mr Zavodny’s case.

“However, even if only errors, those features of her evidence combined with another to detract from the reliability of her opinions generally”.

The third feature of the OT’s will testimony to which His Honour was referring was her obvious reluctance in cross examination to answer questions premised on facts she was asked to assume in relation to the plaintiff’s trial returns to the bridge of fishing charter vessels in Western Australia.

Instead of providing an opinion based on the hypothesis put to her – presumably because of the assumptions the defendants’ legal representatives had briefed to her – Ms Zeman wanted to argue why that hypothesis was wrong.

When she finally agreed to assume that Zavodny could not perform all relevant charter captain’s functions she “surprisingly” refused to concede that her opinion as to his capacity to perform that work would be any different at all.

“This was a disappointing response for a purportedly objective expert”.

His Honour found Mr Zavodny’s account that his ankle injury “has such multi-dimensional adverse consequences on board vessels that it is difficult to conceive of any realistic form of paid seafaring work for which he would be physically competent”.

“From an objective viewpoint it is to his credit that Mr Zavodny had such a strong desire to reclaim his beloved career that he made many attempts to do so”.

Justice Henry decided an ISV of 25 to give a general damages award of $49k. With past income loss of $296k and future loss of income earning capacity of $206k, CTP insurer QBE was ordered to pay a total of $634k.

Zavodny v Couper and Anor – [2020] QSC 42 Henry J, 13 March 2020

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