April 21, 2022

Can a motor vehicle collision at very low impact speed cause a significant personal injury?

Consider the case of Brett Murphy whose taxi was rear-ended in Rockhampton in September 2017 by a Holden Rodeo driven by Leah Turner-Jones.

Murphy’s case was that the following vehicle was travelling between 30-60km/h and accelerating at the point of impact.

But his own dashcam footage and the minimal damage to both vehicles suggested otherwise.

When the matter came for determination before him, Justice Graeme Crow accepted the submission by Allianz – the CTP insurer for the at-fault vehicle – that it was “a very low speed, minor impact accident”.

His Honour went on to observe that those facts did necessarily mean a victim had not suffered from “a high level of symptoms of neck or spinal injury”.

As much was agreed by orthopaedist Prue Fitzpatrick who examined the 50 yr old Murphy in July 2018.

She concluded there was no clear organic pathology to explain the severity of his ongoing symptoms and that the former lawyer and now taxi-driver was likely suffering from a pain syndrome.

Neurologist Don Todman thought differently and diagnosed a post-whiplash syndrome for which he attributed a 7% whole person impairment

Justice Crow was critical of Dr Todman for categorising Murphy under DRE 2 in the absence of physical symptoms merely because of the patient’s own reports of pain.

“The difficulty with such an approach is that it elevates a patient’s subjective complaints of pain over the expert’s findings on examination,” His Honour observed.

“If that approach were correct, then expert orthopaedic surgeons, neurosurgeons, and neurologists need not examine a patient before forming an opinion, as emphasis is placed upon what a patient complains of rather than what is demonstrated”.

He adjudged that the inconsistency of Dr Todman’s findings on patient examination supported Dr Fitzpatrick’s opinion that there was no organic pathology to explain his severe ongoing symptoms and accepted her opinion that the whiplash injury ought to be characterised as 0% permanent impairment.

That said – noting Dr Fitzpatrick’s diagnosis of a pain syndrome and Murphy’s unchallenged evidence was that the injury had a big effect on the activities of daily living – Justice Crow went on to adopt item 88 (moderate cervical spine injury) rather than item 89 (minor cervical spine injury) as the relevant descriptor.

“It is appropriate to conclude that the injury is moderate, notwithstanding the injury has not caused moderate permanent impairment,” he ruled “because of the great deal of pain that Mr Murphy had suffered, and its negative impact on Mr Murphy’s activities of daily living”.

On that basis an ISV of 10 was allocated ie at the top of the range for an Item 88.

Murphy – a law graduate from Bond University who suffers from paranoid schizophrenia – was characterised by the insurer as dishonest by reason of a false declaration in his 2014 application for a commercial driver’s licence regarding his health status.

“I do not accept Mr Murphy’s explanation that this could have been an error and he had not intended to deceive,” Justice Crow ruled.

“On the other hand, Mr Murphy did not appear to exaggerate the effect of his whiplash injury [and] I formed the impression [he] was a credible witness. A fabrication that enables a plaintiff to obtain work or earnings is not necessarily destructive of credit”.

The court assessed his past loss of economic capacity at $59,675 and $107,786 – 50% of current earning projected for 17 years less 35% – for the future to make up a total award of $201k.

Murphy also asked for exemplary damages against Allianz by reason of its failure to have “properly rehabilitated him”. That claim was refused as being “not maintainable at law”.

Murphy v Turner-Jones & Anor [2022] QSC 40 [2022] 14 QLR Crow J, 31 March 2022

Categories: car accident

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