April 28, 2015

As she emerged from Woolloongabba’s Nile Street to enter into Wellington Road, Diana Girle’s Renault collided with a Mitsubishi driven by 19-year-old Chris Dirks who was heading in the direction of Logan Road.

Dirks sued Girle – and her insurer QBE – for injuries resulting from the smash.

His main difficulty arising from the accident was in working with hammers, drills and in cables tying above shoulder height. Vibrations from power tools caused pain.

Orthopedist Malcolm Wallace assessed Dirks – “who undoubtedly had a strong work ethic” – with a 7% whole person impairment “inclusive of headaches”.

Colleague Lloyd Toft on the other hand, concluded Dirks had gotten over his post-accident symptoms and assessed 0%.
To reconcile the differences between the experts, Magistrate Chris Callaghan accepted Dr Wallace’s explanation that tenderness over the cervical spine can be intermittent and the same symptoms may not have been displayed on the day of Dr Toft’s examination.

In the judge’s view of, Dirks was a “witness of truth…. he is no malingerer”.

“His voluntarily concessions when concessions were due has bolstered his credit in this matter.”

On the basis of a DRE Cervical Category II, the court allocated an ISV of 7, which under the Civil Liability Regulation equates to general damages total of $7.4k.

The court was satisfied that Dirks was no longer suited to heavy repetitive above shoulder height tasks.

In fact he had managed to get by his current position as an air conditioning apprentice mechanic, only with analgesics; by changing his work practices; relying on assistance; and when needed, being transferred to lighter duties.

Dirk’s case –that once he becomes a tradesman such assistance and concessions can no longer be taken for granted – was accepted.

On the view that he would be more likely laid off before able-bodied workers; and less likely to be recruited. Allowing for the occasional 6 months-at-a-time being unemployed over the 40 or so years of his remaining working life, the court awarded $50k by way of  ‘global’ future economic loss making a total award of $64k to be paid by Girle’s CTP insurer, QBE.

Have you been injured at work, in a vehicle accident or in a private or public place? You may have a legal right to personal injury compensation.

Dirks v Girle & Allianz Australia Insurance Ltd [2013] QMC 028 Callaghan CJ 06/12/2013

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