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Written by Peter Carter

January 18, 2015

RACQ admitted fault on the part of its insured driver for a Mackay intersection accident in January 2008 but fiercely contested the amount of compensation that was fair to be paid under the CTP insurance policy to the injured driver of the other vehicle.
The fallout from Ben Shearer’s 4WD slamming into the rear of a small sedan was a 5 day court argument and then an appeal to the state’s highest tribunal.

Treated at Mackay hospital but not admitted, Monica Reitano took a week off work to recuperate and worked only half days the following week. A burning back pain devlopped over time and it radiated into her chest.

Justice David North accepted that 17 yr-old Monica had sustained a prolapsed disc in her thoracic spine but ruled that this was in the context of “advanced pre-existing spinal degeneration”.

He formed an extremely unfavourable view of her credit concluding that “she could not be relied upon to give an accurate account of the effects of the accident upon her domestic or occupational activities”.

The evidence she had created what was described as a “false persona” in social media – in which she made “false claims” regarding job offers and overseas travel – were factors influencing his honour’s opinion.

She had told doctors of becoming scared of social interaction but it was plain from her evidence and from other documentary sources that she attended music festivals, events at hotels and that she had even felt up to fulfilling the duties of a bridesmaid.

Monica’s case was that she would have – but for the back pain that developed into spasms after exertion or extended periods of sitting – pursued a career as a foreign correspondent journalist. Even this drew his honour’s ire after RACQ produced evidence that “as a schoolgirl” she had blogged of her ambition to be a psychologist.

Unable to say with any precision the extent her current degeneration was related to “pre-existing circumstances on the one hand, as opposed to the accident” on the other, Justice North allowed $75k for potential future income losses.

Her appeal contended his failure to articulate the methodology by which he arrived at his $75k assessment, was an error of law and the sum was “manifestly inadequate”. Compensation for accident-related domestic assistance should also have been allowed for past periods and into the future, she asserted.

The appeal court ruled that the $75k figure spoke for itself and no further reasoning was required. It could be “readily justified” because it represented an allowance of roughly $4k per year for each year of her future 44-year working life. No increase was warranted, it ruled.

The three appeal judges also supported Justice North’s conclusion that damages for care should be refused because the claimant’s evidence “was confusing and lacked particularity as to which tasks were done for the benefit of the whole household and which were related to the appellants needs solely”. As a result, it was impossible to say if the threshold requirements of Motor Accident Insurance Act s 59 had been met.

But the trial judge’s general damages assessment of just $8.5k for her remaining lifetime of accident-related pain and suffering was wrong – it concluded – due to the absence of reasons as to why an admitted psychiatric injury was disregarded when considering whether the ISV allowance should be subjected to an uplift.

The appeal judges added a further $10K to the pain and suffering award, bringing Monica’s damages outcome up to a total of $150k.

Reitano v Shearer & Anor [2014] QCA 336 Holmes and Fraser JJA and Philippides J 16/12/2014

Categories: Personal Injury , Litigation & Law Practice

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