November 25, 2011

Insurer suspicions about the veracity of Gympie girl Tenille Rossi’s account of the extent to which she was impaired by her September 2003 motor accident injuries were resoundingly vindicated last month after a three day Supreme Court contest for economic loss and gratuitous services damages.
Rossi had consulted her GP the day after the accident as stiffness in her shoulders and neck increased and pain developed in her neck. She was recommended physiotherapy but as “she could not afford it”, relieved her pain with over-the-counter medication. With no physiotherapy whatsoever, her most recent accident-related medical consultation was in November 2005, 6 years prior to the trial.

Not in the workforce at the date of  accident, Tenille started as a sales assistant in a jewellery store about 2 weeks later. That business was later taken over by the man who was soon to become the plaintiff’s future husband and his then-wife.

The physical exertion at the store and later at her husband’s two service stations proved too demanding but she became accomplished in bookkeeping and software operation for a signwriting enterprise that they franchised from the Gold Coast to New Zealand – a substantial business that Mrs Rossi “remarkably” claimed to be unprofitable because of the extent of her participation, limited as she claimed it to have been by her injury symptoms.

The occupational limitation asserted – so held the court – was “difficult to reconcile” with the fact that Rossi had claimed to have worked 50-60 hours per week in her business for the two years from 2009. She had indeed made a pretence of the symptoms and her “ongoing symptoms [were] not nearly to the extent” she contended.

She claimed more than $300,000 damages from the red-light runner and her CTP insurer, RACQ but only one of the several forensic medical specialists Rossi consulted over the long period between the accident and trial assessed her with any functional restriction and even he conceded that her condition conceivably improved since his assessment.

As for gratuitous care – demanded at the rate of 9.5 hours per week – allegedly provided by her husband, the court held this to have been “exaggerated” and drew an adverse inference by reason of Mr Rossi not being called to give evidence on that subject. That part of the claim was disallowed entirely as it the care needs were not accepted as having met the Civil Liability Act threshold of at least 6 hours per week for at least 6 months.

Total damages were assessed at and judgment entered for, a mere $22,000. Small change considering the 7-year legal effort and out of pocket investment required to run such proceedings. A good day at the office for RACQ.

Rossi v Westbrook and Anor [2011] QSC 311 McMurdo J 25/10/2011  

Categories: Personal Injury , Litigation & Law Practice

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