Written by Peter CarterSeptember 27, 2012
Prior medical conditions and an arrest history were only some of the blots on a past that Keith Kilner needed to overcome to establish credibility in his motor accident damages ask before Brisbane’s district court last month.
The 50-year-old front-seat passenger from Dunedin New Zealand, saw a “flash of colour” on the impact of an intersection collision, before sliding into darkness and then opening his eyes to someone talking to him through the window.
Perhaps during that brief period of unconsciousness Keith saw illuminated before him: his troubled schooling, his brushes with the law, his arrival in Australia in his early 20’s, his alcohol dependency, his trade apprenticeship, the emphysema that racked his lungs and the cirrhosis that was eating his liver.
Indeed these were all things that Suncorp – as CTP insurer of the driver at fault – paraded before the court as compelling reasons why this accident could not be held accountable for his medical unfitness to return to his tyre fitter duties at Brendale horse float specialists, PBL Trailers.
But during his 3-day humiliation, Keith persisted with his assertions: his cervical spine had been seriously affected, like his knee and he had also developed an adjustment disorder. His drinking was now under control and the cirrhosis had developed from hepatitis contracted in a needle jab ATM assault.
So far so good but raising further credibility suspicion was a business name registered to his address that he said he retained “just in case” and entries in Centrelink records and on Facebook referring to car sales – that he swore was a one-off event he did for a friend.
Add to this a record in consultation notes of him wearing a yellow fluro vest – just like an everyday construction man – to a medico-legal visit and it started to look fishy. But persist with the truth he did: he wore the vest to “protect himself from cars” because “he did not feel safe walking across streets”.
The court was impressed with his brand of redemption. He had a “reasonably consistent” work history and was “genuinely ill” and although “mindful of his criminal history”, his honour was reasonably convinced he had “told the court the truth”.
As to the extent of his condition, the court accepted the 19% psychological impairment posed by Dr Lotz as opposed to the 7% opined by Dr De Leacy and the 7% orthopedic deficit posed by Dr Pentis rather than the far more modest views of Dr McPhee.
His previous medical conditions were not however entirely irrelevant. Given the cirrhosis was an “aggressive deterioration of his liver”, loss of future earning capacity damages were calculated over a period of 20 years rather than the statistical norm for someone of his age, 31 years.
Past economic loss allowed at $105,000 and $200,000 for future economic loss, total $400,000.
Suncorp appealed against this decision in February 2013 and a retrial was ordered. The Court of Appeal ruled that the trial judge had given an insufficient explanation as to what evidence caused him to prefer the evidence supporting the plaintiff’s case on a number of key issues. Further, “it was not open on the evidence to conclude that [the plaintiff]was a reliable witness”, even if he was a truthful witness.