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The claimant was injured in a motor vehicle accident which occurred in January 2012.  At the time of the accident, the claimant was 74 years of age.  The claimant was Macedonian and had a very limited use of the English language.

The claimant had been walking home from the local shops. When she was about three or four houses away from her own home, a 4WD vehicle reversed out of the driveway and knocked her over.

The accident was, understandably, quite traumatic for the claimant. After knocking her to the ground, the vehicle drove over her right arm 3 times. An ambulance attended the scene and the claimant was conveyed to hospital.

As a result of the accident, the claimant sustained a fracture of her right forearm and a tear of the right shoulder, as well as a soft tissue injury to her neck. She suffered a significant amount of scratching and grazing on her body, however, these injuries completely resolved. The claimant also suffered from significant anxiety and depression following the accident.

The insurer admitted fault on the part of their insured driver.

Prior to the accident, despite her age, the claimant was very active and social, and was self sufficient with respect to her personal care and domestic duties. She lived with her son and her son’s family and before the accident, provided a significant contribution to the household in relation to tasks such as cooking, cleaning and washing. Following the accident, she was unable to continue with these tasks to any significant extent, and became very heavily reliant on her family for housework as well as all aspects of her personal care.

An objection was raised by the insurer in relation to the claimant’s right shoulder injury. The first record of any complaint regarding the shoulder, or any referral for treatment, had been in October 2014, some two and a half years after the accident.  The claimant argued that at all times prior to that date, she had complained of injuries to her “right arm” however the problems with her right shoulder were not clearly identified, due to the focus on the swelling and bruising of her right forearm. Language difficulties were also cited as a reason for the lack of reference to the shoulder, as the claimant said her description of her “right arm” included her shoulder.

The matter was referred to MAS for determination of the level of whole person impairment, as well as a determination regarding the causation of the right shoulder injury. MAS assessed the claimant’s right forearm injury at 18% whole person impairment, but determined that the right shoulder was not related to the accident, due to the lack of contemporaneous records.

Despite the determination regarding the right shoulder, this determination entitled the claimant to compensation for pain and suffering. Predictably, the insurer requested a review of the determination.

However, while that review process was pending, settlement negotiations took place and the matter was resolved for a settlement figure which included compensation for past and future treatment expenses, past and future domestic assistance and a compromised figure for pain and suffering.

The claim was settled for the sum of $135,000.00, inclusive of costs.

Date of Accident:  31 January 2012
Date of Settlement:  2 December 2016
Total Settlement:  $135,000.00


The Plaintiff was 44 years old when, on 17 February 2010, he was riding his bicycle through a roundabout when the insured vehicle, attempting to overtake him, collided with the rear of the Plaintiff’s bicycle causing it and the Plaintiff to crash to the ground. 

The Greenslip insurer of the vehicle at fault admitted liability but alleged that the Plaintiff had contributed to his injuries assessing that contribution at 30%. 

As a result of the accident the Plaintiff suffered a ruptured anterior cruciate ligament and other injuries to his right knee, a strain injury to his right ankle and an injury to his back.  Ultimately he underwent two operative procedures of his right knee, however, despite those operations he remained partially reliant on a walking stick with continuing pain and disability. 

At the time of the accident the Plaintiff was employed as a labourer undertaking construction and property demolition duties.  He did not return to that employment subsequent to the accident and has been unable to return to any form of employment since. 

Due to the allegation that the Plaintiff had contributed to the accident, the matter was exempt from the usual CARS process and therefore proceeded directly to Court.  Unfortunately due to the Plaintiff requiring the two operations referred to above, the proceedings were delayed until such time as his condition had stabilised and an assessment of his whole person impairment could be determined.
Despite the insurer not being prepared to make any concession, ultimately the Plaintiff’s injuries were assessed at greater than 10% whole person impairment by the Medical Assessment Service. This  entitled the Plaintiff to compensation for his pain and suffering. 

The parties participated in a number of Settlement Conferences in an attempt to resolve the matter without the necessity to proceed to the Court Hearing which had been listed to take place from 1 May 2017 with an estimate of one week.

Shortly before the Hearing, the parties participated in a further Settlement Conference and ultimately, the parties agreed to resolve the matter for the sum of $930,000.00 inclusive of costs. This figure was reflective of the Plaintiff’s pain and suffering, wage loss and treatment expenses. 


Date of accident: 17 February 2010.
Date of settlement: 10 April 2017.
Total settlement: $930,000.00 including costs.

 


The Plaintiff was injured in an accident which occurred at a mini school fete held at her primary school (which was a public school owned and operated by the State of New South Wales).  The accident occurred in September 2013, at which time the Plaintiff was 5 years of age and was a student in Kindergarten at the school. 

At the time of the accident, several activities had been set up in the school hall for the students to take part in.  The activities in the hall included a “Commando Course”.  The Commando Course included an activity where children could tackle a foam bag (which was approximately 4 feet high and weighed 4 kilograms). 

At the time of the accident, there were two students from Year 5 and / or Year 6 who were running the Commando Course.  According to the evidence, there was one teacher roaming the school hall supervising all of the activities in the hall. 

Prior to the fete, the school had conducted a risk assessment in respect of the Commando Course (along with the rest of the activities at the mini fete).  The risk assessment included an indication that the Commando Course was to be accessed by students in Years 3 to 6 only.  Despite the fact that the Plaintiff was in Kindergarten, she had taken several turns of the Commando Course and in particular, the foam tackling bag, on that day prior to her accident occurring.

The accident occurred when the Plaintiff had positioned herself behind the foam tackling bag at the same time as a Year 6 student tackled the bag. The bag fell onto the Plaintiff and fractured her left leg. 

The Plaintiff was diagnosed with a fracture of her left proximal tibia (fracture of the shin bone).  The Plaintiff’s injury was treated with a plaster back slab, followed by a full cast.  Following removal of the cast she was required to undergo a course of physiotherapy.

At the time of the accident, the Plaintiff’s young age caused her treating specialist to recommend that she undergo further assessment at the age of 8 years. The specialist had identified a deformity of the left knee, which, if persisting by the age of 8, would require surgical correction, including the insertion of metal hardware. 

The Plaintiff’s specialist reviewed her in April 2016, approximately 2.5 years after the accident. It was his assessment that all of the injuries sustained as a result of the accident had completely resolved.  The specialist had no concerns for any ongoing problems arising from the accident.

As a result, it was deemed appropriate to enter settlement negotiations in light of the view of the specialist that the Plaintiff had made a full recovery from her injuries. 

Settlement negotiations were commenced and ultimately, the parties agreed to resolve the matter for the sum of $30,000.00 plus costs. This figure was reflective of the Plaintiff’s past and future treatment expenses and her pain and suffering.

Due to the age of the Plaintiff, the settlement was required to be approved by a Judge of the District Court.  The settlement was approved and accordingly, the settlement money received by the Plaintiff will now be held on Trust by the NSW Trustee & Guardian until the Plaintiff reaches the age of 18 years. 

Date of Accident:  12 September 2013.
Date of Settlement:  28 October 2016.
Total Settlement:  $30,000.00 plus costs.

 

 


The claimant was injured in a motorcycle accident which occurred in March 2015.  At the time of the accident, the claimant was 43 years of age and by the time of the settlement he was 45 years of age. 

Prior to this accident the claimant was a healthy active man who worked fulltime and enjoyed physically active hobbies such as surfing, Oztag, motorbike riding and golf. 

The accident occurred as the claimant was attempting to turn left into a driveway. As he slowed down to turn, a utility collided with the back of his motorcycle.  The utility drove over the top of the claimant’s motorcycle and he was dragged for approximately 20 metres. 

As a result of the accident, the claimant suffered multiple facial fractures, a fracture of his right clavicle, a nerve injury to his right eye, and various abrasions over his body.

The insurer admitted fault on the part of their insured driver. 

The claimant was diagnosed with significant jaw and facial injuries, which despite undergoing surgery immediately after the accident, left the claimant with facial disfigurement, including severe cross bite which affected his ability to chew food and nasal deviation which affected his ability to breath.

The claimant’s fractures left him with a squint and constant double vision.  There was suggestion by some of his doctors that he had suffered a nerve palsy in the eye region. 

Prior to the accident, the claimant had been employed on a fulltime basis as a high pressure cleaner.  Due to his vision issues, he was unable to work for a period of approximately four months following the accident.  Once he returned to work he was able to perform his normal duties but was unable to drive the truck, therefore he always needed to be accompanied by another colleague. 

The claimant received a prescription for glasses which largely corrected his vision problems, however, wearing glasses affected his enjoyment of other aspects of his life such as his involvement in sporting activities. 

The insurer conceded that the claimant’s injuries were greater than 10% Whole Person Impairment. 

Accordingly, a claim was made in respect of past and future treatment expenses (including surgery for dental and vision), past and future wage loss (on the basis that although the claimant had returned to full duties and full income, his permanent injuries may affect his future employability), past domestic assistance (in respect of personal care provided by the claimant’s partner in the six months following the accident), and pain and suffering.

The claim for pain and suffering was largely based on the effect on the claimant’s life of the need to wear glasses and the restriction in taking part in his pre-injury hobbies due to his vision restriction. 

The claim was settled by way of negotiation with the insurer for the sum of $400,000.00 (inclusive of costs).

Date of Accident:  10 March 2015.
Date of Settlement:  29 November 2016.
Total Settlement:  $400,000.00.

 

 


The Plaintiff was born on 7 March 2005 at Sydney Hospital. On the morning of his birth the Plaintiff’s mother had been admitted to the hospital and her labour was managed by both the hospital staff and an Obstetrician and Gynaecologist.

During the course of the Plaintiff’s mother’s confinement on the day of the birth there were several signs of foetal distress. It was only subsequent to the second such period that a decision was made to proceed to a birth by way of a trial of forceps and then subsequently a caesarean section.

Shortly after the Plaintiff’s birth, he was diagnosed with severe brain damage including cerebral palsy.

Proceedings were commenced against the hospital, the Obstetrician and Gynaecologist, Anaesthetist and Paediatrician alleging that they had been negligent in their provision of advice and treatment to the Plaintiff resulting in him being born in a brain damaged condition.

A large amount of medical evidence was obtained from various experts including from the United Kingdom, New Zealand and from several states in Australia. The Defendants denied negligence.

As well as obtaining many reports in relation to the circumstances of the injury, it was also necessary to obtain expert evidence in relation to the Plaintiff’s disabilities. This included obtaining expert evidence from Paediatricians, Rehabilitation Specialists, Occupational Specialists and Architects. 

The matter was ultimately listed for Hearing after a failed mediation. However, a second mediation conducted shortly before the Hearing led to the settlement, without admission of liability of the claim and that settlement was subsequently approved by the Court on the basis that the Plaintiff, being a minor and severely disabled, was not able to provide instructions. 



Date of Settlemnet: June 2016
Total Settlement:  $4.75 million plus costs

 



The claimant was injured in an accident in August 2015.  At the time of the accident the claimant was 57 years of age and by the time of settlement she was 58 years of age.

The claimant suffered from an intellectual disability which affected her capacity to conduct her own affairs.  She relied heavily on her sister to assist her in her activities of daily living and her financial and legal affairs. 

The accident occurred when the claimant was assisting her son to manoeuvre his motor vehicle into a parking space at a shopping centre carpark.  The claimant’s son, who was 32 years of age at the time of the accident and suffered from an intellectual disability, held only a Learner Driver’s Licence.

As the claimant’s son attempted to manoeuvre the vehicle into the designated car space, the claimant stood in the middle of the space and was speaking to her son and using hand gestures to assist him to park the vehicle between the lines.  Unfortunately, the claimant’s son accidentally applied the accelerator instead of the brakes and collided with the claimant, pinning her between the vehicle and the wall. 

The claimant’s son was charged with various offences relating to the incident.

The insurer admitted fault on the part of the claimant’s son (their insured driver), however alleged contributory negligence to the extent of 60% on the basis that the claimant had failed to keep a proper look out and had put herself in harm’s way. 

Ultimately, the matter was resolved before the issue of contributory negligence was determined.  However, the claimant would have argued that 60% was an excessive allegation.

As a result of the accident, the claimant suffered fractures to both her left and right femur. 

The claimant had a moderately successful recovery. Her residual symptoms from the fractures included clicking at the knee joints as well as permanent reliance on a walking stick. 

The injuries affected the claimant’s capacity to perform household tasks, particularly tasks of a heavy nature.  She subsequently relied upon her sister to perform those tasks. 

The claimant had not been employed prior to the accident, therefore, there was no wage loss claim. 

The claim was settled by way of negotiation with the insurer.  The settlement included compensation for past and future medical expenses and future domestic assistance.  No claim was made for compensation for pain and suffering as the claimant conceded that her permanent injury did not exceed 10%.

 

Date of Accident:  12 August 2015.
Date of Settlement:  29 September 2016
Total Settlement:  $70,000.00.

 

 



The claimant was injured in an accident in September 2014.  At the time of the accident she was 47 years of age and by the time of the settlement she was almost 49 years of age.

The accident occurred when another vehicle attempted to make a right hand turn across the  path of the claimant’s vehicle and a collision occurred. The insurer accepted lability for the claim.

As a result of the accident the claimant sustained injuries to her neck, sternum, left shoulder blade and left breast. The most serious injuries sustained were fractures to her left and right ankles.

In the initial months following the accident, the claimant complained of pain in both ankles, with the left worse than the right and initial medical attention was focused on the left ankle. Ultimately, investigations were performed on both ankles which confirmed the fracture of the left ankle as a result of the accident. However, the age of the right ankle fracture was uncertain.

The claimant underwent an arthroscopy of the left ankle in February 2015 and this provided some relief, although the claimant was left with permanent symptoms, including catching pain when twisting, restricted walking distance, restrictions with respect to footwear and difficulty walking on uneven surfaces.

The claimant also continued to complain of pain in the right ankle and although the insurer had taken the view that the right ankle injury was unrelated to the accident the claimant’s specialist noted that it was certainly the case that the right ankle had been asymptomatic prior to the accident and he was of the view that the claimant’s right ankle problems had been triggered by the trauma of the accident. The claimant underwent a arthroscopy of her right ankle, although the insurer declined to fund the surgery. The procedure was funded via the claimant’s private health insurance.

At the time of the accident the claimant had been employed as a weighbridge operator. She was unable to work for a couple of weeks and then returned on light duties. Ultimately, the claimant was able to return to her normal duties with only minor restrictions with respect to walking on uneven surfaces (which was sometimes required in her role) and standing/walking. The claimant suffered a significant loss of income including time off following the accident and after each of the two procedures referred to above, as well as intermittent time off to attend to treatment requirements.

With respect to her future employment situation, the claimant had not had any plans to change her employment situation, however, at the age of only 49 years of age was concerned about her employability on the open labor market noting the significant restrictions that she now suffers with respect to both of her ankles.

A claim was made in respect of past and future treatment expenses, past and future economic loss and future domestic assistance (for commercial assistance for a couple of hours per week). The claimant conceded that she had not satisfied the required thresholds for gratuitous care since the accident. No claim was made for compensation for pain and suffering as the claimant conceded that her injuries would not exceed 10% whole person impairment.

The claim was settled by way of negotiations with the insurer. Although the insurer did not accept that the claimant’s right ankle injury was related to the accident, an allowance was made on a compromised basis for the purposes of the settlement negotiations. As a result, the amounts paid by the claimant’s private health insurer in respect of the right ankle surgery and treatment were repayable.


Date of Accident:  15 September 2014
Date of Settlement:  26 October 2016
Total Settlement:  $130,000.00

 

 


Mr X owned and operated a bus company, C. There was an employed mechanic, M. On the date of the accident in May 2010, Mr X was driving the bus in the course of his employment. As the bus descended down the road, the braking system of the bus failed, causing it to go out of control, leave the roadway and plunge over the side of the mountain. As a result, Mr X tragically died.

A few days before the date of the accident, the bus was issued with a defect notice. The defect notice required that issues relating to the brakes be cleared before the bus was to be used on any road.

Upon receiving the defect notice, M purportedly inspected and/or adjusted the braking system of the bus so as to be able to present it to a heavy vehicle inspector, H, to pass the works as being satisfactorily completed. H was authorised to inspect heavy vehicles including the bus and assess and certify whether or not the works carried out pursuant to the defect notice had been satisfactorily completed. H certified that the works had been carried out satisfactorily in relation to the defect notice.

In April 2012, there was a Coronial Inquiry into the death of Mr X. The Coroner found that the cause of Mr X’s death was a failure of the braking system.

The Plaintiff in this matter was the wife of Mr X. She was married for more than 12 years and they had a happy and loving relationship.

The Plaintiff first became aware that her husband had been involved in a major accident when on the night of the accident she saw images of the bus and the accident on a news report on the television. She subsequently learned that her husband was dead and later identified his body. The Plaintiff suffered a psychiatric illness caused by the sudden shock of becoming aware of her husband’s untimely death and by the reason of the psychological trauma in losing her husband.

In April 2014, the Plaintiff commenced proceedings against H for damages. The claim was denied.

The Court ordered that the parties participate in a mediation to settle the dispute. After lengthy negotiation an agreement was reached to pay the Plantiff the sum of $750,000.00.

Date of Injury: May 2010.

Date of Settlement:  27 October 2016.

Total Settlement: $750,000.00.

 

 


The Plaintiff was married in April 2002.  On the date of marriage, the Plaintiff and his wife executed a Contract by which they agreed on the division of their property should they separate.
Shortly after the wedding the couple did separate, however, they reunited and therefore it never became necessary to rely upon that Contract. 

In September 2010, the couple again separated.  The following month the Plaintiff and his wife executed a Financial Agreement dividing both real property and other possessions.  That Agreement was partially executed when in November 2010, the parties, in contemplation of a planned reconciliation, executed a third Financial Agreement replacing the previous Financial Agreement with a new set of obligations. 

The couple then reunited, however, in late 2012, they separated again.  The Plaintiff’s former wife commenced proceedings in the Family Court, alleging various errors in the drafting of the Financial Agreement and arguing that it therefore did not apply.  This would mean that the parties would not be bound by the Financial Agreement and, as a result, the Plaintiff would be in an uncertain and likely less advantageous financial position. 

The Plaintiff finalised the proceedings against his former wife by way of an Agreement and then sought to recover the financial loss which he had suffered as a result of the negligent drafting of the November 2010 Financial Agreement. 

Proceedings were commenced against the solicitor who was responsible for the provision of advice and drafting of the Financial Agreement.  A Defence was filed by the solicitor acting for the Defendant solicitor, denying liability for the claim and raising other defences. 

Ultimately, the matter proceeded to an Informal Settlement Conference and was resolved by way of a settlement in the sum of $300,000.00. 

Date of Claim:    November 2010.

Date of Settlement:  18 July 2016.

Total Settlement:  $300,000.00. 

 

 


The claimant was injured in an accident in February 2013.  At the time of the accident he was 49 years of age and by the time of the settlement he was almost 53 years of age.

The claimant was injured in a hit and run accident. While riding his bicycle to work, he was struck by a vehicle which failed to stop. The vehicle was never identified. The insurer admitted liability for the claim, but alleged 40% contributory negligence based on an alleged failure to display a red light and reflector from the rear of the bike, and failure to wear high visibility clothing.

The bicycle was badly damaged in the accident and one of the lights which had been attached was lost.  The claimant’s clothing had been cut off him at the scene and retained by the police, however the photographs taken by police were later misplaced. Despite the fact that the claimant maintained that he had complied with reasonable requirements with respect to safety, the insurer never compromised on its original position with respect to contributory negligence.

As a result of the accident, the claimant sustained a head injury including post traumatic amnesia, a fracture of his left leg, nerve injury to his left wrist, and multiple soft tissue injuries.  The claimant later developed psychological injuries requiring treatment.

As a result of his injuries, the claimant was required to undergo several surgical procedures and was under the care of the Brain Injury Unit at Liverpool Hospital for a significant period of time.  Ultimately, the head injury left him with a not insignificant level of cognitive impairment, including difficulties with memory, orientation, social interaction and anger management.

Prior to the accident, the claimant was employed on a full time basis as a data manager, managing data relating to aircraft parts. As a result of the accident, he was unable to work for 3 months. He then returned to work on reduced hours and duties, and gradually returned to his full time hours and wages.  He was ultimately able to perform all of the duties required of his role, with the exception of technical inspections which he was no longer allowed to perform due to safety reasons.

The insurer conceded that the claimant would exceed the 10% whole person impairment threshold, thus he was entitled to compensation for pain and suffering.

A claim was made in respect of past and future treatment expenses, past and future economic loss, past and future care and pain and suffering.

During the process of negotiations, the claimant was advised by his employer that his job would become redundant in the near future.  The future economic loss claim was therefore based on the fact that the claimant’s future was largely uncertain and his employability on the open labour market had been significantly affected by his injuries, both physical and neuro-psychological.

Due to a delay in negotiations, proceedings were required to be commenced in the District Court.  Fortunately, the matter was then settled by way of negotiation.  The claimant accepted a settlement in the sum of $600,000.00, inclusive of all costs and out of pocket expenses.  This sum included repayment to the CTP Insurer and the Department of Veteran’s Affairs (who had made payment on behalf of the claimant). 

Date of Accident:  18 February 2013
Date of Settlement:  24 May 2016
Total Settlement:  $600,000.00 

 

 

 


The Plaintiff was injured in an accident in a Woolworths Supermarket in July 2011.  At the time of the accident the Plaintiff was aged 54 years and by the time of the settlement, in July 2016, was 59 years of age.

1. The Plaintiff was injured when, whilst shopping at a Woolworths Supermarket, she was struck by merchandise which had been dropped by an employee who was in the process of re-stocking shelves.  The Plaintiff had undergone back surgery 6 weeks prior to this incident and was recovering well, planning to return to work in the next few weeks.  In the incident the Plaintiff twisted suddenly causing immediate back pain.

2. As a result of the incident the Plaintiff’s back pain increased requiring further investigations including ultimately the need to undergo further back surgery.  The damage caused by the incident at Woolworths was denied by the insurer and it became an issue in the proceedings as to what damage had been caused by the incident and what damage was pre-existing as a result of the previous back surgery.

3. Despite the need for back surgery and ongoing significant medication, together with the development of a psychological reaction to the ongoing pain, the Plaintiff returned on a part-time basis to her employment as an accountant.

4. Proceedings were commenced against Woolworths alleging negligence in failing to properly perform the task of re-stocking the shelves causing merchandise to be dropped and strike the Plaintiff.  Woolworths denied negligence and additionally allege that the accident was the Plaintiff’s fault for failing to keep a lookout for falling merchandise and thereby avoid being struck.

5. Both parties obtained a substantial amount of medical evidence commenting on the Plaintiff’s recovery from the previous surgery and the extent of the damage caused by the incident at Woolworths.

6. The matter proceeded to a mediation, which was unsuccessful.  However, further settlement negotiations resulted in the matter being resolved in the sum of $850,000.00 including allowances for past and future wage loss, past and future medical treatment, past and future domestic assistance and care, and damages for pain and suffering.

 Date of accident: 5 July 2011.
 Date of settlement: 11 July 2016.
Total settlement: $850,000.00.
 

 

 


The claimant was injured in an accident in November 2005.  At the time of the accident he was 38 years of age and by the time of the settlement – in April 2016 – he was almost 49 years of age.

The claimant was driving his vehicle in the middle of 3 lanes on the M4 motorway at Wentworthville when the Defendant’s vehicle clipped the rear of his vehicle. The claimant’s vehicle spun out of control and came to rest across the path of 3 lanes of oncoming traffic, at which point the Defendant’s vehicle t-boned the claimant’s vehicle. The Defendant returned a blood alcohol reading of 0.190. Despite this, his CTP insurer denied liability for the claim, stated that his version suggested that the accident was caused by the claimant’s negligence.

The accident occurred as the claimant was driving home from work. The claimant was entitled to lodge a Workers Compensation claim in addition to his CTP entitlements.

The claimant initially reported injuries to his neck, left arm, head, ribs, wrists and back. At the time of the accident he was employed as a truck driver. Soon after his return to work, he was redeployed in a new role as a Terminal Operator, loading and unloading fuel trucks. This was a less physical role and the claimant was able to continue working (with the exception of the periods immediately following each of his 2 surgical procedures).

The claimant underwent an independent assessment by the Medical Assessment Service (“MAS”). His injuries were initially assessed at less than 10% whole person impairment therefore he did not exceed the required threshold for compensation for pain and suffering.

In 2011, (several years after the accident), an MRI scan identified that the claimant had suffered a frank injury to his left shoulder. It had previously been accepted that the symptoms in his left shoulder were the result of referred pain from his neck.

As a result, the matter was referred back to MAS for a further assessment which would also include the left shoulder, and significant surgical scarring arising from 2 surgical procedures. The CTP insurer maintained that the left shoulder injury was unrelated to the accident. The claimant’s physical injuries were assessed at 21%, thus entitling him to compensation for pain and suffering.

The insurer lodged a Supreme Court administrative review application, arguing that the Assessor had made an error at law in failing to properly outline his reasons. The insurer was successful in that application and the matter was referred back to MAS. The further assessment determined that the claimant was not entitled to compensation for pain and suffering

In 2008 proceedings had been commenced in the District Court.  Those proceedings were severely delayed by the MAS process. Ultimately, the matter was listed for a hearing which would have taken place in November 2016, had the matter remained unresolved.

The claim ultimately included past and future treatment expenses, past and future economic loss, and future domestic assistance. The claimant no longer technically held an entitlement to compensation for pain and suffering, but at the time of the settlement negotiations, the insurer was put on notice that the claimant would ask the Court to refer the matter back to MAS for a further determination at the time of the hearing.

The future economic loss claim was made on the basis that the claimant would be unable to continue in his role until the normal retirement age. There was also some concern that the claimant’s role would become redundant and his injuries would significantly affect his employability on the open labour market.

Settlement negotiations were conducted and ultimately the claimant accepted a settlement in the sum of $600,000.00, which included repayment to the Workers Compensation insurer of all payments made (approximately $120,000.00), as well as the Workers Compensation insurer’s costs in relation to the matter.


Date of accident 9 November 2005
Date of settlement 18 April 2016
Total settlement  $600,000.00

 

 


The claimant was injured in an accident in July 2014.  At the time of the accident she was 74 years of age and by the time of the settlement she was 75 years of age.

The claimant was driving her vehicle when another vehicle failed to give way and collided with her vehicle, pushing it into oncoming traffic.  Her vehicle then hit another vehicle, causing the claimant’s vehicle to collide with a telegraph pole. 


The CTP insurer accepted liability for the claim. 
The claimant sustained an injury to her right rotator cuff, fractured her 9th and 10th ribs on the left side, fractured her inferior right scapula and suffered psychological injuries.


The insurer paid for a significant amount of treatment expenses and also domestic assistance to assist in the claimant’s rehabilitation, particularly in the early months following the accident. The claimant also received a significant amount of care and assistance from family members.


Up until approximately 4 months prior to the accident, the claimant had been employed as an editor producing educational materials. She had been working 4 days per week until her position became redundant. She had intended to return to the workforce after a short break. Unfortunately, the injuries she suffered in the motor vehicle accident prevented her from doing so.


Despite the fact that the claimant was aged 73 at the date of the accident, she was able to establish evidence of her impressive work history and long standing commitment to paid work. The fact that she had already been working for several years past the “normal” expected retirement age allowed the claimant to reasonably contend that she had intended to work for another 4 years (health permitting) – a contention which was ultimately accepted by the insurer.


At the time of the settlement the claimant had made a good recovery from her injuries but still suffered from pain and restrictions which would create a need for ongoing GP and specialist treatment, as well as medication. The claimant had been recommended by her doctors to purchase an orthopaedic mattress and pillow as well as an exercise bike and treadmill, to ensure her ongoing fitness and comfort.
The claim ultimately included past and future treatment expenses, past and future wage loss, and past and future domestic assistance. The claimant was not entitled to compensation for pain and suffering as her injuries did not exceed the relevant threshold of 10% whole person impairment.

Settlement negotiations were conducted and ultimately the claimant accepted a settlement in the sum of $105,000.00, which included a significant sum in respect of future wage loss.


Date of accident    13 July 2014
Date of settlement    28 January 2016
Total settlement        $105,000.00

 


The Claimant suffered serious physical injuries in February 2009 in a public hospital ("the Hospital"). She was 52 years of age at the time of injuries, and 59 at the time of settlement.

In mid February 2009, the Claimant was admitted to the Hospital under a care of Dr X for a laparotomy, anterior resection and open cholecystectomy ("the surgery"). Dr X performed the surgery assisted by two registrars, Dr Y and Dr Z. After the surgery, Dr X and Dr Y reviewed the Claimant and the post surgery care was uneventful.

In late February 2009, the Claimant reported to the nursing staff of the Hospital her concerns. The Claimant's pain scores started to increase, her urine output started to drop, and she developed low range of tachycardia and hypotension.

On the same day, a Medical Registrar ordered an abdominal x-ray, which showed the presence of free gas under the diaphragm. The Medical Registrar informed Dr Y and discussed the Claimant's deteriorating conditions, but not Dr X. It turns out there was a hole in the Claimant's caecum. The Claimant experienced a septic shock with intra abdominal faecal contamination.

Two days after the surgery, Dr X organised an emergency transfer to another larger public hospital for emergency surgery.  As a result, the Claimant is significantly disfigured, suffering from an inoperable hernia and other ongoing health concerns.

In 2014, the Claimant commenced proceedings against the Hospital for negligence. The Claimant alleged that the Hospital breached its duty of care to exercise reasonable care in its management of her including assessing the Claimant for a possible perforation in her caecum. The Hospital denied liability.

In terms of medical evidence, there were competing medical experts' opinions. The Claimant's medical expert was of the opinion that the Claimant ought to have been diagnosed with a CT at an earlier time than the Hospital's medical expert.

The Claimant made a claim for past and future medical treatment expenses, as well as a claim for past and future domestic care and assistance.

The Claimant also made a claim for pain and suffering, which was the largest component of her damages, for the following reasons: Before the surgery, the Claimant was a very active person, enjoying her life with her husband and their children and grandchildren. She used to enjoy going on road trips with her family, cooking for her extended family, and staying fit and active by exercising and swimming. After the surgery, as a result of her ongoing health problems, the Claimant cannot do any of these anymore. She is embarrassed by her large hernia. Furthermore, the Claimant suffers from anxiety, stress and depression.

In late November 2015, the Claimant and the Hospital conducted a mediation, which was unsuccessful. But, further settlement negotiations took place after the mediation.

Ultimately, in late December 2015, the Claimant settled her claim for a sum of $300,000.00.


Date of accident: February 2009
Date of settlement: December 2015
Total settlement: $300,000.00.

 


 

The Claimant was injured in a motor vehicle accident in late December 2012. The Claimant was 22 years of age at the time of the accident, and 25 at the time of settlement.


Just before the accident, the Claimant was involved in a fight with strangers at a local park, leading to his arrest by the NSW police. The Claimant and these strangers were handcuffed and placed in the back of a police paddy wagon. On the way to the local police station, the police paddy wagon rolled to its side at a roundabout. As a result of the accident, the Claimant sustained an injury to his neck. The insurer admitted liability for the personal injury claim.


At the time of the accident, the Claimant was employed as a forklift driver for an event management company. It was a full time role that the Claimant had been performing since 2009. The Claimant took about nine months off work following the accident.


The Claimant received treatment and rehabilitation, but had no surgery to the neck. However, the Claimant was eager to return to work, and was employed by another event management company as a forklift driver. The Claimant had ongoing neck pain, especially when he turned his head during his operation of the forklift, but he persevered as much as he could.


The Claimant’s neck injury was assessed by an independent medico-legal specialist at 25% whole person impairment. The insurer conceded that this injury exceeded the 10% whole person impairment statutory threshold, and the Claimant was entitled to make a claim for pain and suffering.


The Claimant also made a claim for wage loss on the basis that he would not be able to work to the retirement age of 67, and that his earning capacity will diminish over time. Given that the Claimant’s qualification is Year 10 School Certificate, the Claimant submitted to the insurer that he will find himself at a significant disadvantage on the open market if he is to seek for work if, for example, his current employer terminates his employment for not being able to complete his full duties due to physical injuries and restrictions.


In late 2015, the Claimant and the insurer conducted settlement negotiations.
Ultimately, the Claimant settled his claim for a sum of $480,000.00 inclusive of all costs and out of pocket expenses.


Date of accident: 31 December 2012
Date of settlement: 22 October 2015
Total settlement: $480,000.00.

 


The claimant was injured in an accident in May 2014. She was 50 years of age at the time of the accident, and 51 by the time of the settlement. The accident occurred while the claimant was driving her vehicle along a major road at Prestons.  A vehicle attempted to make a right hand turn from a side street, but failed to give way to the claimant.  The insurer admitted liability for the claim.


At the time of the accident, the claimant was employed as a clerical and administrative assistant in a small family business.  It was a full-time role that she had been performing since 2013. The claimant’s employment history consisted predominantly of administrative type roles. As a result of the accident, the claimant sustained a fracture to her right hand ring finger and lacerations and bruising to a significant amount of her body.  Subsequent investigations revealed an injury to her right middle finger, and this injury ultimately caused her the most significant problems.


The claimant was required to undergo surgery at Liverpool Hospital immediately following the accident.  She then subsequently underwent several months of treatment and rehabilitation.
As a result of the traumatic experience of the motor vehicle accident, the claimant experienced a significant amount of anxiety when driving, particularly when travelling on the road where the accident had occurred (which was unfortunately along her usual route to work).


The claimant took less than 2 months off work following the accident.  Upon her return, she made every attempt to perform her usual duties, despite her ongoing problems.  The injuries to her fingers affected her ability to type and enter data on the computer and to complete written forms.  She was also restricted in her capacity to perform general office duties such as stapling, filing and photocopying.  The insurer fulfilled its statutory obligations by approving various requests for assistance such as the provision of an electric stapler and a left handed numerical keyboard.


The claim included past and future treatment expenses, future loss of earning capacity (based on a general diminution of the claimant’s earning capacity due to her permanent restrictions) and a claim for future domestic assistance, on the basis that the claimant’s capacity to perform household tasks to her previous level  was now permanently restricted. The claimant’s injuries did not exceed 10% whole person impairment, therefore there was no claim for non-economic loss.  


The insurer acknowledged that in circumstances where the claimant’s employment history was mostly comprised of administrative work, it was likely that the permanent injuries she had sustained would have a significant effect on her future earning capacity.  A significant buffer was offered in respect of future economic loss on that basis.  This was in the absence of any actual ongoing economic loss - in fact, by the time of the settlement, the claimant had changed jobs (citing the travel to work and her anxiety while driving as one of the major reasons for changing roles) and was actually earning more than she had been prior to the motor vehicle accident.


Ultimately, the claim settled for the sum of $95,000.00, inclusive of all costs and out of pocket expenses.  This sum included a repayment to the CTP insurer and to Medicare, for payments made.  


Date of Accident:    29 May 2014
Date of Settlement:    22 July 2015
Total Settlement:    $95,000.00.

 


The claimant was injured in an accident in August 2013.  At the time of the accident he was 60 years of age and by the time of the settlement he was almost 62 years of age.

The claimant was struck while crossing a pedestrian crossing in Campbelltown by a vehicle which failed to stop.  The insurer admitted liability for the claim.

Approximately 4 months prior to the accident, the claimant had resigned from his position as an administration officer.  The reason for the resignation was to provide full-time care for his mother and nephew who both had significant health issues.

As a result of the accident, the claimant sustained a fracture of his right leg and multiple abrasions.  He was admitted to hospital and an external fixation was applied.  He later underwent open reduction and internal fixation of the fracture.  The external fixation was then removed.

Approximately 1 month after the last procedure, the claimant suffered a secondary injury when attempting to go down the rear steps of his home using his crutches.  The crutch rammed up into his shoulder cavity and he subsequently required a significant amount of treatment to his right shoulder.

Some time after the accident, it was also found that the claimant had sustained a fracture of his rib and it was determined that he had developed a left Achilles tendonitis as a result of his injuries.

The claimant continued to receive specialist review and ultimately his surgeon advised that he was likely to require a total knee replacement.  He would also most certainly require surgical removal of the fixation plates and screws.

The insurer conceded that the claimant would exceed the 10% threshold for whole person impairment, thus conceding that he would be entitled to compensation for pain and suffering.

On that basis, the claimant instructed that he would like to resolve the matter despite the need for future surgery.

A claim was made in respect of past and future treatment expenses (including the 2 surgical procedures), past and future economic loss, future care and pain and suffering.

The economic loss claim was made on the basis that despite having resigned from his position, it was the claimant’s intention to return to the workforce from April 2014 (9 months after the motor vehicle accident).  It was his intention to return to the same role, or similar to his previous role, and to work until the age of 70 years.  The claim was made on the basis that the claimant’s future employability had been significantly effected by his physical injuries and the resulting restrictions.  A particular issue was his difficulty driving which would reduce his employment options further.

Settlement negotiations were conducted and the insurer formed the view that the claimant was not entitled to compensation for economic loss.  This position was based on the evidence of the claimant that he had resigned from his position, and documentation which suggested that at the time of the resignation, the claimant had withdrawn the contents of his superannuation fund, indicating to the superannuation company at that time that he did not intend to return to the work force.

Having considered the insurer’s position in the context of the evidence available, the claimant withdrew the claim for economic loss during the settlement negotiations.  This enabled fruitful settlement negotiations and also reduced any need for recovery by Centrelink of the carer’s pension the claimant had been receiving.

Ultimately, the claimant accepted a settlement in the sum of $325,000.00, inclusive of all costs and out of pocket expenses.  This sum included repayment to the CTP insurer, the claimant’s private health insurer and Medicare, which had all made payments to the claimant or on his behalf.

Date of accident 15 August 2013.
Date of settlement 29 May 2015.
Total settlement $325,000.00

 


The claimant was injured in an accident in June 2012.  At the time of the accident, he was 50 years of age and by the time of the settlement he was 53 years of age.  

The claimant was injured while driving his vehicle on Henry Lawson Drive at Georges Hall.  A vehicle travelling in the opposite direction crossed onto the claimant’s side of the road and collided head on with his vehicle.  The insurer admitted liability for the claim.

At the time of the accident, the claimant was employed as a warehouse manager on a full-time basis.  He had been working in that role since 2008.  He was also an active member of the Rural Fire Service, and had acted in the position of President and Treasurer within that organisation.

As a result of the accident, the claimant sustained soft tissue injuries to his lower back, neck, shoulders and chest, as well as a disc prolapse at L4/5 and L5/S1.  

Following the accident, the claimant was taken to Bankstown Hospital, and was then discharged into the care of his general practitioner.  He was referred for physiotherapy treatment and his injuries were largely managed with pain medication.  

The claimant’s pain and discomfort continued for several months. The pain, particularly in his arm and shoulder, increased over the six months subsequent to the accident. Various investigations were performed in relation to the claimant’s cervical spine and right shoulder.

In May 2013, a surgical procedure known as a right sided C6/7 soraminotomy was performed.

The insurer had initially taken the view that 50% of the claimant’s neck symptoms were attributable to pre-existing degenerative changes.  Ultimately, however, the cost of the surgical procedure to the cervical spine was approved and paid for by the insurer.

Following the accident, the claimant was unable to work for a period of 19 weeks.  During that time, he did attempt to return to his pre-injury duties. Following his return to work, it became apparent that he was unable to perform his pre-injury duties and ultimately, his position was terminated in July 2013.  

The claimant was never able to return to his physical duties at the Rural Fire Service which was a cause of great disappointment to him.

Following his redundancy, the claimant made various applications for employment.  In September 2013, he began working as a shuttle bus driver on a part-time casual basis. The income from that position was significantly less than his full-time position as a warehouse manager.

The insurer disputed the claimant’s entitlement to compensation for non-economic loss.  The medical evidence suggested that his injuries exceeded 10% whole person impairment, however no concession was forthcoming from the insurer.  The claimant was forced to make an application to MAS (Medical Assessment Service) to obtain an independent determination in relation to the issue.

The MAS Assessor determined that the claimant’s injuries represented 11% whole person impairment.  This assessment included 1% for the surgical scarring arising following his surgical procedure, in addition to the assessment of his orthopaedic injuries.

A claim was made in respect of past and future treatment expenses, past and future economic loss, (on the basis that his permanent injuries continue to have a significant effect on his earning capacity) future domestic assistance and non-economic loss (pain and suffering).  

The claim for future domestic assistance was made on the basis that prior to the accident, the claimant shared the indoor household cleaning duties equally with his partner, and he carried out all of the outdoor duties and maintenance.  Since the accident, he had been unable to carry out any domestic duties involving bending or twisting motions.  It was submitted that he would require assistance on a commercial basis for several hours per week, to assist with the tasks that he was no longer able to perform.

In accordance with the claimant’s entitlements, a claim was made for non-economic loss (pain and suffering).  The claimant’s enjoyment of life has been significantly affected by his injuries.  He was no longer able to fully participate in his role at the Rural Fire Service, which had been a great passion of his prior to the accident.  Neither was he able to continue to work on a full-time basis in a role that he had enjoyed, and had intended to continue to perform until his retirement age.

Ultimately, the claimant accepted a settlement in the sum of $375,000.00, inclusive of all costs and out of pocket expenses.  This sum included a repayment to the CTP insurer, the claimant’s private health insurer and Medicare, which had all made payments to the claimant or on his behalf.

Date of Accident:     29 June 2012
Date of Settlement:     1 June 2015
Total Settlement:     $375,000.00

 


 

The claimant was 48 years of age at the date of a motor vehicle accident and 51 years of age at the time of the CARS assessment.  The claimant was a passenger in a motor vehicle when the driver of a bus collided with the rear of that vehicle.  The Insurer wholly admitted liability for the claim.


As a result of the accident the claimant sustained physical injuries to her neck and both shoulders.  She also suffered vertigo and visual disturbance together with psychological injuries.  The claimant required treatment from a psychologist for her psychological injuries, specialist treatment for her shoulder injuries and ongoing specialist treatment, including testing, of the vertigo and visual disturbances.


The Insurer ultimately conceded that the claimant’s injuries exceeded the 10% whole person impairment threshold imposed by the Motor Accidents Compensation Act thereby entitling her to damages for pain and suffering.  The claimant’s Medico-Legal reports had assessed her at 33% whole person impairment for physical injuries and 22% whole person impairment for psychological injuries.  The Insurer’s Medico-Legal reports assessed whole person impairment in respect of psychological injuries at 22% whole person impairment.


As a result of the injuries and disabilities the claimant suffered a significant loss of enjoyment of life.  Her ability to engage in physical activities is severely restricted and as a result she suffered significant weight gain.  This added to her upset and frustration affecting her self esteem and relationship with others, including her husband.  The claimant’s work capacity was also severely impacted.  She had not been able to return to her pre-accident employment either in her husband’s business or in the arts where she had a successful and distinguished career.  The medical evidence suggested that she was unlikely to ever return to full time employment.


In assessing pain and suffering the assessor took into account that while the claimant had no loss of expectation of life, the claimant had suffered and would continue to suffer significant pain, suffering and loss of amenities of life in the future.


The matter proceeded to a CARS assessment in June 2015 subsequent to which she received a successful determination in the sum of $1,850,281.71 plus legal costs.

 


 

The claimant was 9 years old at the date of a motor vehicle accident and 12 years old at the time of settlement.  The claimant was a passenger in a motor vehicle driven by his father when it was struck in the rear by the insured vehicle.  The Insurer wholly admitted liability for the claim.


As a result of the accident the claimant was transported by ambulance to hospital where he underwent an x-ray of his neck and remained under observation for approximately 4 hours before discharge with a diagnosis of a neck strain.


He subsequently attended his general practitioners for review and was provided with a referral to a psychologist for treatment of a post traumatic stress disorder.


The claimant’s injuries did not exceed the 10% whole person impairment threshold and therefore any claim for damages was limited to past and future medical treatment.
Medical reports were obtained on behalf of the claimant from a surgeon and a psychologist in support of his claim.


The parties participated in a Settlement Conference in April 2015 by which time the claimant had made a good recovery from the neck injury with intermittent soreness and his psychological condition was improving although he did still experience some anxiety as a passenger in a motor vehicle.
The Settlement Conference was successful with the claim resolving for the sum of $30,000.00 plus payment of legal costs.  Due to the claimant’s infancy the settlement was subsequently listed before a Court for approval and that approval was granted.

 


 

The Plaintiff was 63 years of age at the date of the treatment to which the claim related and 68 years of age at the time of settlement.  The Plaintiff underwent an operation for clawed toes on 26 March 2010.  On 29 March 2010 he was assaulted and suffered an ankle fracture requiring surgery.  That surgery was performed on 31 March 2010 and required open reduction and internal fixation with plates and screws.  There was a lot of tissue damage as a result of the compound fracture and therefore a high risk of infection.


The Plaintiff remained hospitalised during which time observations were recorded suggestive of an ongoing infection.  The Plaintiff received only minimal antibiotic treatment during his admission.  He was discharged on 14 April 2010 attending regularly on his general practitioner for review of the wound and dressing changes.  The signs of infection became progressively worse and he was readmitted to hospital on 14 May 2010 with an established infection requiring removal of the hardware (plate and screws) and intravenous antibiotic therapy.


Expert evidence was obtained in support of a claim against the hospital on the basis that it failed to adequately treat the wound infection or to provide adequate follow up treatment following the plaintiff’s initial discharge from hospital.


Proceedings were commenced against the hospital in September 2013.  The hospital denied responsibility for the ongoing infection and the subsequent disabilities suffered by the Plaintiff which included both physical restrictions due to the infection of the ankle and psychological injury.
As well as dealing with the issue of liability of the hospital, the Plaintiff’s medical evidence detailed continuing swelling and deformity together with restriction of range of movement of the ankle.  This meant that he could barely stand on his foot due to pain.  He has trouble negotiating steps and stairs without rails, an inability to attend to housework and a need for a wheelchair or scooter for any significant mobilisation.  He is withdrawn and less sociable, is not able to play with his grandchildren and spends most of his day sitting in a recliner chair watching television.


The matter proceeded to mediation and was settled in the days following the mediation in the sum of $500,000.00.

 

Marsdens Offices