Written by Peter CarterJanuary 20, 2012
Claimants’ medical records can so preoccupy an insurer that they become powerless to resist: like mythical seamen lured on to the rocks by enchanting mermaids.
None other than Suncorp Metway again became a casualty to such familiar desire when it was enticed into a 2 day Supreme Court liablity-admitted odyssey concerning the medical history of one Vivien Hooper, a 54 yr old Hairdresser from Rockhampton.
Dr Flanagan, a consultant Psychiatrist, had assessed a 5% impairment from the nose to tail accident in August 2006, for PTSD and a driving phobia. This was not contested. Not so the orthopaedic prognosis. Suncorp – contending that the current symptoms were all of an earlier genesis – offered economic damages at a fraction of the $600k asked.
The court accepted that Vivien – who had a senior hairdressing career for more than 20 years until 1993 when she took up the care of her children – intended to resume employment but for the accident. In her favour was that she had completed computer and administrative studies TAFE courses and a STEPS course: all reasonable measures to prevent her skill base from atrophying and to transition back into work.
Two expert clippers, Sandy Turner and a formidable Mrs Vivash, opined that our plaintiff had otherwise excellent prospects of hairdressing success or as a teacher/instructor, as her qualifications and experience were highly sought after.
Suncorp took aim, contending her pre-existing injuries rendered her incapable of the ardour of hairdressing.
On this tack they ran well aground. Although Vivien had sought prior treatment for low-back pain and discomfort, similar to the symptoms from the 2006 accident, his honour concluded there was no evidence that as a result of those other problems “she would have eventually ended up in her present pitiable state.”
Although similar, there was no evidence – so held the court – of identical pre-accident symptoms in the same lower back region of her anatomy. Referring to Purkess v Crittenden, his honour noted that, a “defendant [must] show ‘with some reasonable measure of precision’, what the pre-existing condition was and what its future effects were.”
Helping to gain steam for Suncorp’s eventual tearing apart on the rocks, was the joint report of orthopedists Denis Nave (plaintiff) and Prue Fitzpatrick (Suncorp) that assessed 5% lumbar impairment: a report that lent no support for the insurer’s argument. The past economic loss was assessed at $115,000.00 and future loss at $130,000.00 – all against Suncorp’s broadside that she was due a mere $25,000.00 for both past and future.
Once well stuck, the insurer desperately argued for a nil gratuitous care award as she “could still carry out day to day tasks, albeit with some difficulty”. This argument too was rejected by Justice McMeekin: “Driving until one is crippled with pain is not, on any view, reasonable.” $30,000.00 was allowed for past care and $85,000.00 future.
The final shots from the scuttled wreck were a volley at Viv’s future expense tally. The shots flew wide. Our plaintiff was awarded $70,000.00 for future expenses and $12,000.00 for specials.
Total damages: $507,000. Such bravado!