Marsdens acted for three Plaintiffs who were variously then mother, father and brother of a baby, who was stillborn in hospital. Each of the Plaintiff’s claimed damages for psychiatric injury arising out of the stillbirth on 15 June 2016, at 38 weeks gestation.
This was a high risk pregnancy for several reasons, including that the mother suffered from gestational diabetes, hypertension, obesity, advanced maternal age, and this was her tenth pregnancy.
Three days before the stillbirth, the mother presented to hospital for a planned delivery by caesarean section. However, on presentation to the hospital, the baby had moved into the correct position and the planned caesarean section was cancelled. The mother however, remained in hospital for continued monitoring of the baby.
On 17 June, the said monitoring confirmed foetal death in utero and the baby was delivered stillborn on 18 June.
The Plaintiff’s obtained expert evidence from an obstetrician and gynaecologist to the effect that the monitoring of the baby was inadequate and had monitoring been continued, it would likely have been found to be abnormal, necessitating an earlier birth.
In relation to the claim for damages, expert evidence was obtained from psychiatrists in relation to the various Plaintiffs’ psychological condition following the stillbirth. These reports diagnosed a psychiatric condition caused by the stillbirth. Proceedings were commenced and ultimately the matter proceeded to a mediation.
At mediation, conducted by FaceTime due to Covid-19 restrictions, the parties reached agreement in relation to each matter with the claims for the mother and father being resolved in the sum of $140,000.00 each and the claim on behalf of the infant son settling for the sum of $120,000.00 plus costs.
Date of Settlement: 19 May 2020.
Mother’s Claim: $140,000.00 inclusive.
Father’s Claim: $140.000.00 inclusive.
Son’s Claim: $120,000.00 plus costs.
The claimant was injured in a motor accident which occurred in November 2017, literally a few days before the “new” Motor Accidents Scheme came into force. Her claim therefore fell under the old Motor Accidents Compensation Act scheme.
The claimant was driving to work when another vehicle veered onto the wrong side of the road and collided head-on with her vehicle. At the date of the accident, the claimant was only 19 years of age. She was employed as a youth support worker and also worked a second job as a pizza delivery driver, whilst studying nursing and para-medicine at university.
As a result of the collision, the claimant sustained multiple significant injuries, including fractures of her pelvic bones, head injuries, fractures of right wrist and elbow, fracture of right leg, spinal fractures, rib fractures, internal lacerations, tear of the left knee, pulmonary embolism, sternum fracture, and post traumatic stress disorder.
The claimant was required to undergo a significant number of surgical procedures, involving the insertion of hardware into various parts of her body, and as a result of those procedures, was left with a significant amount of post surgical scarring to her body.
As a result of her injuries, the claimant was unable to work or live independently for a period of approximately 12 months. She moved in with family members who cared for her during that period.
To her credit, the claimant ultimately resumed her work as a pizza delivery driver and later also obtained work as a disability support worker. As a result of her injuries, her capacity to perform her role was significantly restricted.
The claimant also experienced difficulty in her ability to continue with her tertiary studies. Although she did not withdraw her enrolment from university, her injuries cast grave doubts over the likelihood that she would be able to fulfil her dream of becoming a paramedic.
The insurer (appropriately) conceded that the claimant’s significant injuries exceeded 10% Whole Person Impairment. Accordingly, she was entitled to a lump sum of compensation for her pain and suffering.
The claim was ultimately settled by way of negotiations. The claimant received a settlement which included compensation for past and future treatment expenses, past and future economic loss (including her loss of future earning capacity and loss of future career opportunities), past and future domestic assistance and pain and suffering.
Date of accident: 25 November 2017
Date of settlement: 2 June 2020
Total settlement: $970,000.00 (inclusive of costs)
The claimant was 60 years of age when whilst in the company of her husband she was struck by the insured’s motor vehicle attempting to cross a road. She sustained severe injuries including a traumatic brain injury with posttraumatic amnesia for 89 days as well as numerous orthopaedic injuries including a depressed fracture of the left lateral orbital wall, a fracture of the left maxillary sinus, a fracture of the left zygomatic arch and a fracture of the left head of the humerus.
As a result of her injuries the claimant was transported by ambulance to Liverpool Hospital, underwent numerous procedures and was ultimately discharged from the brain injury rehabilitation unit over 7 months post accident.
Her injuries were such that she was eligible initially as an interim participant in the lifetime care and support scheme, a scheme set aside for those seriously injured in motor vehicle accidents, After 2 years she was confirmed as a lifetime participant. The claimant will therefore be entitled to lifetime treatment, rehabilitation and care costs paid for by the scheme.
Liability was admitted in relation to the motor vehicle accident and therefore the matter proceeded by way of an assessment of quantum only. On the basis that the claimant was accepted as a lifetime participant in the lifetime care and support scheme, her damages were limited to compensation for pain and suffering only.
The claim was ultimately resolved by way of a negotiated settlement in the sum of $500,000.00.
Date of accident: 13 October 2017
Date of settlement: 2 June 2020
Amount of settlement: $500,000.00
The claimant was injured in a motor accident in December 2013. At the time of the accident, she had just turned 18 years old and had recently completed her Higher School Certificate.
The accident occurred when the claimant was travelling as a back seat passenger in a vehicle which was travelling at approximately 40kph, due to roadworks. Another vehicle, travelling at between 80 and 100kph, collided with the rear of the vehicle in which the claimant was travelling.
As a result of the collision, the claimant suffered injuries to her neck and lower back and post traumatic stress disorder (PTSD).
At the time of the accident, the claimant had been working as a casual sales assistant for approximately six months whilst completing her Higher School Certificate. As a result of her injuries, she was unable to return to that job and her employment was terminated.
The claimant continued to receive treatment for her injuries and made several attempts to enter the workforce, in different roles that she thought may be suitable despite her restrictions. She attempted roles in child care and legal administration, but neither of these roles were within her physical restrictions, and she lasted a minimal amount of time in each role.
Ultimately, the claimant had some success in working in a café and then found work in a call centre. She ultimately commenced a role as an administrative assistant and found a considerate employer who allowed her to take breaks and otherwise work around her physical restrictions.
At the time of settlement in April 2020, the claimant was 24 years of age and had sustained a significant amount of past economic loss due to her difficulties in obtaining and sustaining employment. Her employability in the future had been significantly affected by both her physical and psychological injuries.
Ultimately, a claim was made for past and future treatment expenses, past and future economic loss and past and future domestic assistance. The claimant’s injuries were assessed at less than 10% Whole Person Impairment, therefore, she was not entitled to compensation for pain and suffering.
The matter was resolved by way of settlement, prior to lodgement of an application to CARS.
Date of accident: 18 December 2013
Date of settlement: 28 April 2020
Total settlement: $182,500.00 inclusive of costs
The Claimant was injured in a motor accident in January 2017. At the time of the accident, he was 49 years of age and he was employed as a high school teacher in Technology & Applied Sciences.
The accident occurred when the Claimant was driving home from work on The Northern Road. A vehicle pulled out from another lane and tried to merge into the lane in which he was travelling, colliding with the Claimant’s vehicle. He was pushed towards a right-hand turning lane and as he corrected left to avoid a collision with oncoming traffic, his vehicle collided again with the other vehicle.
As a result of the accident, the Claimant sustained damaged ligaments in his wrist, requiring a significant amount of treatment including surgery. The claimant was no longer able to perform heavy household tasks or resume his previous regular hobby of playing golf. He also had certain difficulties in his work role, as it involved demonstrating the use of machinery to students and moving heavy materials.
The insurer accepted liability for the claim, and in February 2019, made an offer of settlement in the sum of $14,500.00 all inclusive, in an attempt to resolve the claim.
Following receipt of that offer, the Claimant instructed Marsdens to act on his behalf.
Further evidence was obtained in relation to the extent of the Claimant’s injuries and in particular, the effect of the injuries on his future earning capacity. Although the Claimant had sustained very little actual loss of income as at the date of settlement, he had been left with permanent impairment in his right wrist and there was a significant likelihood that this impairment would affect his future earning capacity, either as a teacher, or in his planned return to a previous career in engineering.
The Claimant’s injuries did not exceed 10% whole person impairment, therefore he was not entitled to compensation for pain and suffering.
Settlement negotiations took place in respect of the claim, which was formulated in respect of past and future treatment expenses, future loss of earning capacity and past and future domestic assistance. Ultimately, the Claimant accepted an offer of settlement in the sum of $125,000.00 inclusive, which was over $110,000.00 more than the offer which had originally been made by the insurer, prior to the Claimant instructing Marsdens.
Date of accident: 30 January 2017
Date of settlement: 25 Mach 2020
Total settlement: $125,000.00
The Claimant was injured in a motor accident in April 2017. At the time of the accident, he was 36 years of age and he was employed as a maintenance officer.
The accident occurred when the Claimant was riding his motorcycle on the main street of Campbelltown. He was following his cousin, who was also riding his motorcycle, from a restaurant where they had just eaten dinner, to the home of another friend. As the Claimant approached the driveway of Campbelltown McDonalds, a vehicle which was exiting the driveway failed to give way to the Claimant’s approaching motorcycle. The Claimant was required to take evasive action to avoid a collision and as a result, lost control of his motorcycle, which skidded across the road, throwing him off the vehicle.
The other vehicle failed to stop and was never identified. Accordingly, the a was made against the Nominal Defendant.
As a result of the accident, the Claimant sustained a fracture of his left ankle and a fracture of his left fibula, as well as other soft tissue injuries. He was unable to work for a period of about 3 months, after which he was able to return on restricted duties for a period of time, ultimately returning to his normal duties and hours, albeit with ongoing restrictions.
The claim was referred by the Nominal Defendant to NRMA, for the conduct of the claim. NRMA denied liability, on the basis that it questioned whether the unidentified vehicle existed or the accident had actually occurred as the Claimant had reported.
This view was formed on the basis of witness statements gathered by an investigator commissioned by NRMA. The first statement was provided by an off-duty Police Officer who happened to be at the McDonalds restaurant at the time of the accident and therefore attended the scene. The Police Officer’s statement incorrectly described the circumstances of the accident, including the direction of travel of the Claimant. The second statement was taken from a witness who was some distance away from the actual scene of the accident and did not witness the accident, but described her impression of the speed and “revving” of the Claimant’s motorcycle. The accuracy of both of these accounts was questionable.
The insurer issued a notice requiring the claimant to commence Court proceedings. A claim was made in respect of past and future treatment expenses, past economic loss and future loss of earning capacity, and past and future domestic assistance.
The Claimant’s permanent injuries resulted in ongoing restrictions in his ability to perform his job and domestic tasks. He had difficulty walking on uneven ground, would suffer from pain in his ankle, required orthotic footwear and walked with a limp.
The insurer maintained its denial of liability, however, ultimately, the parties engaged in settlement negotiations which resulted in a settlement in the sum of $160,000.00 inclusive of costs.
Date of accident: 8 April 2017
Date of settlement: 26 February 2020
Total settlement: $160,000.00
The Plaintiff was injured in March 2002 in the course of her employment as a process worker. The incident occurred when the Plaintiff tripped and fell as she stepped over a conveyor belt to clean the floor before finishing her shift. As a result of this incident, the Plaintiff sustained injuries to her right shoulder, hip and right wrist.
As a result of her injuries, the Plaintiff required three surgical procedures to her right wrist. She also required conservative treatment in the form of physiotherapy for the injuries to her hip and shoulder.
Following the accident, the Plaintiff returned to work on reduced hours and light duties. She gradually built up her workload over time, however was never able to return to full-time work in her pre-injury role. Some years after the accident, the Plaintiff was informed by her employer that she would be required to return to her pre-injury role. The Plaintiff was physically incapable of performing the role, so her employment eventually terminated in June 2008.
Some years later in 2017, the Plaintiff obtained employment at a retail store, where she worked on a part-time basis.
As the incident occurred in the course of the Plaintiff’s employment, she successfully pursued a workers compensation claim for statutory benefits for weekly wages, medical expenses and permanent impairment.
In March 2019, the Plaintiff made a work injury damages claim for damages on the basis that her injury had occurred as a result of her employer’s negligence. She claimed past and future economic loss including a claim for lost superannuation.
In response to this claim, the Defendant insurer denied liability for the Plaintiff’s injuries and denied that her employer was negligent.
In August 2019, the matter was referred to the Workers Compensation Commission for Mediation. Various offers of settlement were exchanged and after some negotiation, the Plaintiff’s proceedings settled in the sum of $90,000.00. As workers compensation benefits were previously paid to the Plaintiff in respect of her injuries, these payments were recoverable by the workers compensation insurer. The Plaintiff was therefore only entitled to the difference in her wages from the earnings she would have received but for the injury, and the weekly benefits already received from the workers compensation insurer.
Date of injury: 14 March 2002
Date of settlement: 4 September 2019
Total settlement: $90,000.00
The Applicant was injured in April 1993 (at the age of 29 years) in the course of his employment with the Department of Defence. In the process of lifting 2 drums of coolant (which weighed about 20 kilograms each) the Applicant suffered an injury to his back. The injury was categorised as a soft tissue injury of the lumbar spine and/or an aggravation (or acceleration) of an underlying degenerative condition.
The insurer, Comcare, accepted liability for the Applicant’s condition for all medical expenses and incapacity. This liability continued up to August 2018, by which time the Applicant had been receiving payments for a period of 25 years.
At various times between 1993 and 2018, the Applicant was deemed to have varying degrees of capacity for employment. On a few occasions, Comcare declined ongoing liability for the claim, however on each of these occasions, upon application to the Administrative Appeals Tribunal (AAT) the decisions were set aside and an Order was made on each occasion that Comcare had continuing liability to pay for the Applicant’s medical expenses and incapacity payments.
The Applicant’s employment with the Department of Defence was terminated (by way of redundancy) in August 2011.
In 2013, the Applicant made a claim for lump sum compensation on the basis of permanent impairment. Comcare accepted that the Applicant had an 8% permanent impairment resulting from the injury in April 1993. The assessment of 8% was confirmed in the proceedings before the AAT.
In March 2018, Comcare arranged for the Applicant to be examined by an Occupational Physician. The Applicant had previously been assessed by several medical experts between the period 1993 to 2018.
As a result of the assessment in March 2018, Comcare determined that there was no ongoing liability in respect of the injury, and attempted to contend that in fact, the Applicant’s symptoms had not related to his accepted compensable back injury for several years (which conflicted with the position it had held since 1993).
An internal review was unsuccessful, therefore the Applicant lodged an application with the AAT.
The matter was listed for a hearing in October 2019. Ultimately, the matter was settled on the morning of the hearing, on the basis that the Applicant’s entitlements (medical expenses and incapacity payments) would be deemed to continue up to and including the date of the hearing.
As a result of the settlement agreement, the Applicant received a reimbursement of medical expenses and repayment of Medicare (both of which were minimal due to the fact that the treatment received during that period was very little) and a payment in reimbursement of incapacity payments in the sum of $29,057.09. These payments represented the Applicant’s entitlements between August 2018 and October 2019.
The effect of the agreement was that the Applicant is no longer entitled to payments for medical expenses or incapacity payments arising from the injury in April 1993.
Date of Accident: 15 April 1993
Date of Settlement: 14 October 2019
Total Settlement: $29,057.09
The claimant was riding his pushbike in Camden in July 2018 when he was sideswiped by a motor vehicle causing him to fall to the ground. The driver of the motor vehicle did not stop and despite investigations was never identified.
A claim for compensation was lodged with the Nominal Defendant which is required to deal with claims where a motor vehicle is unidentified. The claim was then managed by one of the authorised NSW Greenslip Insurers.
The claimant was required to prove that reasonable steps had been taken to identify the vehicle. This included obtaining witness statements and advertising. Whilst those investigations, including those conducted by Police, failed to identify the driver of the motor vehicle, they were sufficient to prove that reasonable steps had been taken.
As a result of the accident the claimant suffered a severe fracture dislocation of the right side of his pelvis together with a closed head injury and multiple contusions and abrasions. He was admitted to hospital and underwent a right total hip arthroplasty with bone grafting as well as open reduction and internal fixation of a fracture of the right acetabulum. Upon discharge he underwent rehabilitation including physiotherapy.
As a result of his injuries the claimant has been left with ongoing restrictions in relation to his mobility which has limited his participation in various pastimes and recreational activities. He was also unfit for work for a period of time and has ongoing limitations.
At the time of the accident the claimant was aged 74 but was still in full-time employment.
In support of the claim a report was obtained from an Orthopaedic Surgeon and a detailed report was obtained from a Forensic Accountant in relation to loss of earnings.
The parties entered into settlement negotiations and participated in an informal settlement conference. The matter was ultimately resolved for the sum of $400,000.00. Those damages represented a claim for pain and suffering on the basis that the claimant’s injuries were accepted to exceed the 10% whole person impairment threshold and a claim for past and future loss of earnings. The claim arose under the New Motor Accidents Injuries Act and on that basis no claim was able to be made for future treatment costs or future domestic assistance. In relation to those heads of damage the claimant will be entitled to continue to receive those benefits on an "as needed" basis, paid for under the scheme.
Date of accident: July 2018.
Date of settlement: October 2019.
Total settlement: $400,000.00.
The claimant was 30 years of age when his fiancé was tragically killed in a motor vehicle accident in early 2018. The claimant and the deceased had been in a 7 year relationship and had lived together for a number of years.
An investigation into the circumstances of the motor vehicle accident by the police confirmed that the driver of the other vehicle was at fault. Ultimately, the insurer admitted liability for the accident.
The claim for compensation in this matter arose out of the loss of the expectation of financial benefit to the claimant from the deceased. That loss of financial benefit arises out of a portion of the deceased’s income being used for the benefit of the relationship including, for example, payment of a mortgage and household expenses. In addition, the claim also included the loss of services otherwise provided by the deceased including, for example, domestic services.
The parties entered into settlement negotiations. At the time of settlement, the claimant had not entered into a new relationship. Those settlement negotiations ultimately resulted in settlement of the matter in the sum of $490,000.00. The settlement reflected the significant loss of financial support and services experienced by the young claimant from the date of death to the date of settlement and, on the basis that the claimant had not entered into a new relationship, into the future.
Date of Accident: February 2018
Date of Settlement: September 2019
Total Settlement: $490,000.00
The claimant was injured in a motor accident in March 2017. At the time of the accident, the claimant was 80 years of age. She had previously been very healthy and active, for a person of her age.
The accident occurred as the claimant boarded a bus to return home after completing her shopping. After she entered the bus, but before she had taken her seat, the bus driver accelerated and the claimant fell to the floor.
As a result of the incident, the claimant sustained a fracture of her right hip, and required surgical repair of the fracture, as well as an insertion of hardware into the hip.
The insurer accepted liability on the basis that the bus driver was at fault.
Prior to the accident, the claimant had been relatively independent. She lived on her own but was able to attend to her own shopping and housework. She attended church and other social events regularly, without assistance. She was very independent in catching public transport to get herself around and despite her age, was helping her younger relatives with their housework and family duties.
Following the accident, the claimant became heavily reliant on family members who lived nearby to provide her with assistance. The insurer approved a significant amount of assistance in relation to housework and transport.
The claim was made in respect of past and future treatment expenses, past and future care expenses and pain and suffering. There had been no determination that the claimant’s injuries exceeded 10% Whole Person Impairment, (which would have meant an entitlement to compensation for pain and suffering). However, the insurer agreed to engage in negotiations on the basis that the claimant would be entitled to some compensation for pain and suffering.
Ultimately, a settlement was negotiated in respect of all of the above heads of damage. The settlement included a significant portion for pain and suffering.
The settlement reflected the permanent and significant injuries sustained by the claimant, and the effects that those injuries had on her life.
Date of Accident: 10 March 2017
Date of Settlement: 26 November 2018
Total Settlement: $150,000.00
The Plaintiff was injured in the course of his employment as a renderer in May 2015. The incident occurred when the Plaintiff was standing on a ladder rendering a wall which had exposed live electrical wires sticking out of it. He had been told that the electricity had been turned off and these wires were isolated. As he moved the wires to render underneath them, he was electrocuted, causing him to fall off the ladder, onto the ground. As a result of this incident, the Plaintiff suffered an injury to his lumbar spine.
As a result of his injuries, the Plaintiff required three months off work. After this, he returned to work on restricted duties. Due to his injuries and the physical nature of his pre-injury employment, the Plaintiff was unable to return to his employment as a renderer.
As this incident occurred in the course of the Plaintiff’s employment, he successfully pursued a workers compensation claim for statutory benefits for weekly wages, medical expenses and permanent impairment.
In May 2018, the Plaintiff commenced negligence proceedings in the District Court for damages. He claimed past and future economic loss, past and future domestic assistance, past and future treatment expenses and pain and suffering.
The Plaintiff made the claim against two Defendants, the head contractor of the building site where the Plaintiff was working at the time the incident occurred (“First Defendant”) and the head electrical contractor of the worksite (“Second Defendant”).
In October 2018, the First Defendant filed a cross-claim against the Second Defendant on the basis that it was responsible for managing electrical works at the site and for ensuring it was safe for persons in the position of the Plaintiff. In March 2019, the Second Defendant filed a cross-claim against the First Defendant seeking indemnity on the basis that they were jointly responsible for the works at the site.
In May 2019, both cross-claims were dismissed and the matter proceeded against the Second Defendant only.
The matter was set down for hearing in June 2019. Several days into the hearing, various offers of settlement were exchanged and after some negotiation, the Plaintiff’s proceedings settled in the sum of $670,000.00.
Date of injury: 15 May 2015
Date of settlement: 4 July 2019
Total settlement: $670,000.00
On 22 December 2014, the Plaintiff gave birth to her first child, a baby girl.
During the course of the delivery the Plaintiff suffered permanent and life changing injuries which comprised of severe trauma including labial, perineal and anal sphincter tears and was left with faecal incontinence, chronic pain, problems with sexual relations and interpersonal relationships and depression. These were indeed devastating injuries for a young woman which will affect her for the rest of her life.
In order to investigate the claim against the public hospital which managed the Plaintiff during the pregnancy and conducted the delivery, expert reports were obtained from an obstetrician and gynecologist, a colorectal surgeon and a psychiatrist in relation to the Plaintiff’s depression. Those reports supported a claim in negligence against the hospital and the attending obstetrician and gynecologist. Proceedings were commenced out of the Supreme Court in response to which the hospital and the obstetrician obtained medical evidence disputing responsibility for the injuries.
The Plaintiff’s medical evidence asserted that the Plaintiff ought to have been regarded as high risk for several serious complications, including macrosomia (a significantly larger than average size new born), the Plaintiff’s baby was 4.8kg at delivery, as well as other risks including the need for an emergency delivery, shoulder dystocia and tearing amongst others. It was asserted that an elective caesarean would have prevented or significantly reduced the above risks and would have prevented the faecal incontinence.
The matter proceeded to a mediation, however, it did not resolve and the proceedings were listed for hearing in March 2020. Subsequent to the mediation further settlement discussions occurred between the parties ultimately resolving the matter favourably for the Plaintiff in the sum of $800,000.00 plus legal costs.
Date of Injury: 22 December 2014
Date of Settlement: 28 June 2019
Total Settlement: $800,000.00 plus costs
In early 2012, the plaintiff developed psychological injuries in the course of her employment with a battery production company. At the time, the plaintiff was employed as a sales representative and had been in the role for a period of four months during which she was subject to significant bullying and harassment by her supervisors.
The plaintiff complained that throughout the course of her employment, she had been inadequately trained by her supervisors and was subjected to abuse, bullying and harassment.
The plaintiff made a workers compensation claim for statutory benefits for weekly wages, medical expenses and permanent impairment for psychological injuries arising out of her employment.
As a result of her injuries, the plaintiff terminated her employment and has been unable to return to work since the accident. As a result, she has suffered substantial past and future wage loss.
In early 2018, the plaintiff commenced a claim in negligence against her employer for the psychological injuries sustained in the course of her employment. Such a claim is limited to loss of past and future wages. The plaintiff claimed that her employer had failed to develop appropriate policies and procedures on workplace bullying and harassment and failed to adequately respond to the plaintiff’s complaints in respect of the way she had been treated by her supervisors.
The employer’s insurer denied liability on the basis that it denied that the plaintiff was subjected to bullying and harassment throughout the course of her employment and it alleged that the employer acted reasonably upon becoming aware of the issues raised by the plaintiff. In the alternative, the insurer alleged that the plaintiff contributed to her own injuries by failing to take any or adequate care for her own safety.
The matter was subsequently referred to the Workers Compensation Commission for a mediation. In the course of the mediation, various offers were exchanged and after some negotiation, the insurer accepted the plaintiff’s offer of settlement in the sum of $275,000.00.
Date of Injury: 8 February 2012
Date of Settlement: 6 February 2019
Total Settlement: $275,000.00
The Claimant suffered injuries in two separate motor vehicle accidents. Due to the overlapping nature of the injuries and the issues, and the fact that the same insurer was involved in both claims, the claims were run together.
“The first accident” – 5 June 2011
The Claimant was driving her vehicle through a petrol station when a vehicle which had been stationary at the bowser moved forward and collided with the rear left-side of the vehicle. The Claimant sustained injuries to her lower back, neck, right and left shoulders, thumbs and knees.
The insurer denied liability on the basis that it was alleged that the accident had not resulted in any injury or damage to the Claimant.
“The second accident” – 20 June 2014
The Claimant was stationary at a major t-intersection, waiting to make a left turn. A vehicle attempted a right hand turn from the Claimant’s left and as the other driver took the corner, she clipped the Claimant’s vehicle, causing the vehicle to spin and land several metres away. The Claimant suffered an aggravation of the injuries to her lower back and neck, new injuries to her sternum and left foot, and aggravation of the symptoms in her shoulders and thumbs.
The insurer denied liability, despite the fact that the other driver was charged and convicted of negligent driving.
In relation to each of the above accidents, the Claimant developed secondary psychological symptoms. The psychological symptoms arising from the first accident were assessed at 15% whole person impairment at MAS. As a result of the second accident, a marked aggravation of those psychological symptoms was noted. The Claimant was entitled to compensation for pain and suffering as a result of her injuries.
Prior to the first accident, the Claimant had been employed as a Teacher’s Aide and had intended to continue with that work. The Claimant did not work again following the first accident, and made a claim for her loss of income and ongoing loss of earning capacity.
The Claimant required a significant amount of assistance with domestic chores. The Claimant lived with her mother (who had been injured in the second accident and also required assistance) and her daughter (who had also been injured in the first accident).
Both claims involved complex issues due to the Claimant’s unrelated medical conditions, as well as issues relating to the Claimant’s daughter. Ultimately, the claims were settled at mediation, thus avoiding the need for a lengthy Court hearing, which would have taken several days in light of the two overlapping accidents and the complexity of the issues.
An agreement was reached with the insurer for the sum of $400,000.00 (inclusive of costs), negotiated in respect of both claims together. The claims resolved 7 years after the first accident. At the time of the first accident, the Claimant was 48 years of age. By the time of settlement, the Claimant was 55 years of age.
Date of Accident: 5 June 2011 / 20 June 2014
Date of Settlement: 16 November 2018
Total Settlement: $400,000.00
The claimant was involved in a motor vehicle accident on 7 November 2016 at almost 85 years of age. The accident occurred when the claimant struck a vehicle which had pulled out from a T-intersection, directly into his path. The insurer admitted liability for the accident on behalf of its insured driver.
The claimant experienced immediate pain in his neck and chest and was conveyed to hospital in a cervical collar. At hospital, he underwent various scans which confirmed a minimally displaced fracture through the posterior arch of the C2 vertebra. He also complained of tenderness over the chest wall and mid back together with limitations in relation to shoulder movements, likely related to the upper back and neck pain.
The claimant remained hospitalised for 5 days and was then released in a neck collar. He was reviewed both by the Outpatients Department of the hospital and his general practitioner.
Due to the claimant’s injuries, he was restricted in relation to his ability to perform work on his farm and it was necessary therefore to obtain assistance from family members. Additionally, he also was restricted in relation to performing domestic tasks and similarly he relied upon family members to perform these tasks for him.
The matter proceeded to the Medical Assessment Service with his injuries assessed at not greater than 10% whole person impairment. The parties then participated in settlement discussions as a result of which the matter was settled for the sum of $105,000.00 inclusive of costs, with the majority of the settlement amount relating to the cost of labour and assistance provided by the claimant’s family due to his injuries.
Date of accident: 7 November 2016.
Date of settlement: 17 April 2019.
Total settlement: $105,000.00.
The Claimant was injured in a motor accident in June 2011, at which time she was 10 years of age. The Claimant was a back seat passenger in a vehicle driven by her mother, who was also injured in the accident.
The accident occurred when the vehicle, driven by the Claimant’s mother, was traversing through a petrol station and a taxi which had been stationary at a bowser moved forward and collided with the rear left side of the vehicle. This was the side of the vehicle on which the Claimant was seated.
The insurer entered a denial of liability. It was accepted that the insured driver was at fault, but alleged that the Claimant had not suffered any injuries as a result of the accident.
As a result of the accident, the Claimant sustained both physical and psychological injuries. She sustained a soft tissue injury to her back, which caused her some difficulty in her school attendance and when she was at school, concentration issues and difficulty carrying her bag between classes.
The Claimant’s psychiatric injuries were difficult to diagnose, on a background of significant pre-existing factors, including a previous claim relating to a bullying incident while attending a childcare centre.
The Claimant’s situation was made more complex by the fact that her mother had suffered significant injuries in the motor accident, therefore the family focus became the treatment of the accident injuries.
Due to the Claimant’s age and the complexity of her medical history, the assessment of the injuries was a prolonged process which was delayed over several years. Ultimately, MAS Assessors determined that neither the physical or psychiatric injuries exceeded 10% whole person impairment.
The matter was litigated in the District Court and ultimately listed for hearing in March 2019. By that time, the Claimant had been unable to continue attending school and had attempted to study her HSC through TAFE. The Claimant’s psychiatric injuries were affecting her life significantly, to the point where her treating doctors reported suicide attempts and ongoing suicidal ideation, as well as violence towards family members.
Ultimately, the matter was settled at mediation, thus avoiding the need for what was expected to be a lengthy Court hearing. The Claimant agreed to a settlement which included damages for past and future treatment expenses, past and future care and future economic loss (by way of a buffer amount). Obviously, the Claimant had never worked as at the time this matter was resolved, and given her pre-existing psychiatric condition, it was difficult to establish how the injuries sustained in the accident would actually affect her future earning capacity.
The matter ultimately resolved for the sum of $150,000.00 (inclusive of costs), over 7 years after the accident. By the time of settlement, the claimant had reached the age of 18 therefore she was able to make her own decision about resolving the claim.
Date of Accident: 5 June 2011
Date of Settlement: 16 November 2018
Total Settlement: $150,000.00
The Plaintiff developed psychological injuries as a result of his son’s death in custody on 9 June 2013. At the time of death, the Plaintiff’s son was an inmate at Long Bay Correctional Centre and had been receiving psychiatric care and treatment throughout his term of imprisonment. The cause of death was unknown.
As the death occurred in custody and the cause was unknown, a Coronial Inquest was held. This firm acted on behalf of the Plaintiff in the Coronial Inquest into the death of his son which was heard in the Coroner’s Court in October 2017.
The Deputy State Coroner found that the Plaintiff’s son died in custody from natural causes in circumstances where his use of multiple, concurrent psychiatric medication led to him developing a fatal heart condition. The Coroner found that the Deceased suffered from a fatal cardiac arrhythmia as a result of the psychiatric medication prescribed to him whilst in custody. The Deceased’s treating psychiatrist was responsible for concurrently prescribing the medication which contributed to his death.
In his findings, the Deputy State Coroner found that the Deceased’s medication regime was not clinically optimal and the medication prescribed to him by his treating psychiatrist, placed him at an increased risk of developing a fatal heart condition. The Coroner found that it was more probable than not, that the Deceased’s concurrent use of psychiatric medication contributed to his fatal cardiac arrhythmia.
As a result of his son’s death, the Plaintiff suffered mental harm and psychological injury. He was diagnosed with chronic adjustment disorder and depressed mood. As a result of his injuries he required ongoing psychological treatment and medication.
In May 2018, a letter of demand was sent to the psychiatrist who prescribed the Deceased with the medication which contributed to his death (The Defendant).
In August 2018, the Plaintiff made an offer of settlement which the Defendant rejected on the basis that the Coronial Inquest did not address the question of negligence. Further, the Defendant alleged that the care provided to the Deceased was reasonable in the circumstances. As such, the Defendant alleged that the duty of care owed to the Deceased was not breached. The Defendant also alleged that the Plaintiff was suffering from psychological injuries prior to the Deceased’s death and therefore, a causal link between the care provided by the Defendant and the death of his son, could not be established.
In November 2018, the Plaintiff made a further offer of settlement. The Plaintiff argued that the medical evidence which formed part of the Coronial Inquest supported his claim that the Defendant negligently prescribed medication which was known to increase the risk of a fatal heart condition.
After some negotiation, the Defendant accepted the Plaintiff’s offer of settlement. The settlement included damages for non economic loss (pain and suffering), past treatment expenses, future treatment expenses and legal costs.
Date of Injury: 9 June 2013
Date of Coronial Inquest: October 2017
Date of Settlement: 21 December 2018
Total Settlement Amount: $100,000.00
The claimant, aged 30 was involved in a motor vehicle accident on 30 March 2016. The accident occurred at approximately 6.20am on The Northern Road near Mulgoa when a vehicle travelling in the opposite direction crossed over to the incorrect side of the road, colliding with a motor vehicle directly in front of the claimant. That motor vehicle then flipped, rolled and collided with the front of the claimant’s vehicle, which was then also struck by the motor vehicle travelling behind him.
The insurer admitted liability and the matter proceeded by way of an assessment of damages.
As a result of the impacts sustained in the accident, the claimant suffered significant injuries including fractures to his lumbar spine. He underwent surgery and was hospitalised for 7 days and then followed up as an outpatient.
At the time of the accident the claimant had partially completed an electrical apprenticeship. Despite attempts to return to his employment he was unable to do so due to his injuries. As a result he did not complete his apprenticeship. To the claimant’s credit he found employment in an alternative capacity which was generally suited to his physical restrictions.
The insurer conceded that claimant’s injuries exceeded 10% whole person impairment and therefore he was entitled to damages for his pain and suffering.
Expert evidence was obtained from various medical specialists in relation to the claimant’s condition and it’s likely impact on his future employability. In addition, supportive statements were obtained from the claimant’s employer and electricians who were comparable employees of the claimant and therefore represented his potential earning capacity, if he had been uninjured.
In accordance with the legislation, the parties participated in a settlement conference and the matter was settled for the sum of $880,000.00 all inclusive.
Date of accident: 30 March 2016
Date of settlement: 22 November 2018
The claimant was injured in a motor accident in December 2015. At the time of the accident, the claimant was 32 years old. He had previously been a healthy and fit man who was working as a Leading Hand at a bus depot.
The accident occurred when the claimant was riding his motorcycle and a vehicle attempted a right hand turn across his path, colliding with the claimant’s motorcycle.
As a result of the accident, the claimant sustained a fracture of his right wrist, a multi-ligamentous knee injury, a fracture of his left thumb and injuries to his head, neck and back.
The insurer accepted liability on the basis that its insured driver was at fault.
As a result of his injuries, the claimant, who has previously been working on a full-time basis, was unable to return to work for a period of approximately 6 months. Upon his return to work, he made a gradual return to his pre-injury hours, but was not able to return to any of the manual duties which had previously been involved in his role. Even once he had returned to his full-time base hours, was unable to perform a significant amount of the overtime that he had been performing prior to the accident.
At the time of the accident, the claimant had been planning his wedding, which was due to take place a couple of months after the accident occurred. The significant injuries sustained by the claimant affected his enjoyment of his wedding planning, the wedding day itself, his honeymoon and the start of his married life. His permanent serious injuries also prevented him from returning to various hobbies and activities that he had previously enjoyed, including riding his motorcycle with friends, waterskiing, adventure holidays. The claimant was unable to pursue his intended return to his rugby union career.
The insurer conceded that the claimant’s injuries were greater than 10% whole person impairment. Accordingly, the claimant was entitled to compensation for pain and suffering.
As a result of his injuries, the claimant was required to undergo several surgical procedures and his specialist noted that in the future, he would be likely to require several further procedures, including more than one total knee replacements. The cost of these procedures were factored into the settlement.
At the time of the settlement, the insurer was provided with evidence from the claimant’s specialist, recommending that he reduce his working hours from 5 days per week to 4 days per week and noted that this reduction was likely to be permanent. The medical evidence suggested that the claimant would be unlikely to be able to work until the age of 67 and would be likely to require a further reduction in his working hours within the coming years.
Having a significant period of time off work after the accident and following his surgical procedures, left the claimant in a difficult financial position. The insurer fulfilled its obligation with respect to early payments in circumstances of financial hardship, making payments of approximately $80,000.00 in advance of the settlement.
The claim was made in respect of past and future treatment expenses, past and future economic loss, past and future domestic assistance and pain and suffering. The matter was ultimately settled for the sum of $950,000.00 inclusive of costs, reflecting the permanent and significant injuries sustained by the claimant.
Date of Accident: 12 December 2015
Date of Settlement: 22 November 2018
Total Settlement: $950,000.00
The Applicant was 58 years of age when he instructed this firm in relation to a trauma insurance claim. He had purchased an insurance policy in 1997 which included life insurance and a trauma recovery benefit. As at November 2013, at the time when the Applicant was diagnosed with a benign brain tumour, the policy was issued by AMP.
Following his diagnosis, the Applicant was advised that if the brain tumour was to grow from its current size of 2cms to 4cms, it would become fatal. The tumour was removed in an extremely delicate procedure, however, following the procedure, the Applicant suffered permanent loss of hearing in his left ear and subsequent balance issues and headaches. Due to the complexity of the situation, the surgeon was unable to completely remove the tumour as there was an extremely high risk of loss of facial nerves and sight.
A claim was lodged in December 2013 but was rejected on the basis that the Applicant’s condition did not meet the relevant definition. As at the relevant time, the definition of a benign brain tumour required to satisfy the policy was:
“A benign intracranial tumour with all of the following features:
- It cannot be totally removed by surgery;
- Its growth cannot be arrested by other available techniques;
- It is life threatening; and
- It has caused a permanent inability to perform at least 2 of the specified activities of daily living.”
Following extensive negotiations with AMP (including reference to an updated definition which had been introduced into the Policy in 2010), AMP maintained its position.
In November 2015, the Applicant began suffering from a cerebrospinal fluid leak. This condition continued over the subsequent 3 years, requiring recurrent procedures for inter-cranial repairs, insertion of a shunt, endoscopic tube insertion and treatment of secondary conditions such as meningitis and other various symptoms.
A further application was made to AMP, on the basis of the deterioration of the condition, and the updated definition, which required that the Applicant need only have been affected in his performance of one of the activities of daily living.
Two of the Applicant’s treating doctors confirmed their opinion that the Applicant was no longer able to work and required assistance with any daily activities requiring mobility. The medical evidence also confirmed the doctor’s opinions that the Applicant had suffered significant permanent impairment of whole body function, thus satisfying the relevant definition.
AMP ultimately accepted the claim for benefits and confirmed the Applicant’s entitlement to the trauma recovery benefit, in addition to a refund of all premiums paid since the initial diagnosis.
Date of Diagnosis: November 2013
Date of finalisation of claim: September 2018
Total insurance benefit lump sum: $951,367.84
The claimant was involved in two motor vehicle accidents in 2008 and 2010. In the first motor vehicle accident she was struck from behind by the insured vehicle and sustained injuries to her neck, shoulder and back as well as psychological impacts. The insurer admitted liability for this accident and this matter progressed as an assessment of damages only. In respect of the 2010 accident, the claimant was a pedestrian struck by the insured vehicle. She suffered injuries to the right side of her body including her hip, elbow and wrist, together with a back injury, an injury to her right knee, aggravation of her neck injury and post traumatic stress. In respect of this accident, the insurer again admitted liability but alleged contributory negligence of 25%.
The claimant sought treatment from various providers and expert reports were obtained from a number of them as well as medico legal evidence. It was asserted that the claimant had suffered both a past loss of wages due to her absences from work for treatment and loss of promotional prospects. A claim was also made for future wage loss based on her reduced capacity.
The insurer made initial offers of settlement in the sum of $15,000.00, inclusive of legal costs in respect of the first accident, and $7,500.00, inclusive of costs in respect of the second accident.
As required by the legislation, the parties participated in a settlement conference at which time the insurer was only prepared to increase their offers to a total of $100,000.00 inclusive of legal costs. As a result, the matter proceeded to an assessment at the Claims Assessment & Resolution Service (CARS). The CARS Assessment Conference ran over two days and evidence was called from the claimant as well as her work colleagues.
Ultimately the Claims Assessor assessed damages in respect of the 2008 motor vehicle accident in the sum of $235,630.00 plus regulated costs, and in respect of the second motor vehicle accident, in the sum of $80,799.30 plus regulated costs, including a reduction for contributory negligence of 10%.
Date of Accidents: 6 April 2018 and 22 November 2010.
Date of Determination: 20 July 2018.
Damages: $236,330.00 and $80,799.30 plus regulated costs, respectively.
The claimant was injured in a motor vehicle accident in November 2014. At the time of the accident, she was 61 years of age. She had previously been healthy and active. The claimant was not in paid employment at the time of the accident.
Following the accident, the claimant lodged a claim form with the CTP insurer of the vehicle itself. She did not initially engage legal representatives.
The insurer accepted liability for the claim and the claim progressed whilst the claimant was receiving active treatment for her injuries which included a compression fracture of the T8 vertebrae, a torn calf muscle and cracked ribs.
As the claimant had not been employed, her claim did not include any loss of wages and the injuries did not exceed 10% Whole Person Impairment, therefore, there was no entitlement to compensation for pain and suffering.
In November 2016, the insurer made an offer of settlement by way of letter to the claimant, from which she would have received $2,253.39, if accepted. The offer included out of pocket expenses only.
Following receipt of the offer, the claimant instructed Marsdens Law Group to advise and represent her in relation to the claim.
Further medical evidence was obtained to substantiate the claimant’s requirements for significant future out of pocket expenses and also her entitlement to domestic assistance as a result of the injuries sustained.
Ultimately, the claim was made in respect of past and future out of pocket expenses and past and future domestic assistance. The claim was ultimately resolved for the sum of $75,000.00 inclusive of costs. The claimant was both pleased and relieved about her decision to seek legal advice upon receipt of the initial offer of settlement.
Date of accident: 14 November 2014
Date of finalisation of TPD claim: 13 June 2018
Total TPD lump sum: $75,000.00
The Applicant suffered an injury to her knee following a fall at her home in April 2014. As a result of the injury, she was unable to continue with her work as a personal trainer and fitness instructor.
Prior to April 2014, the Applicant had been involved in two serious motor vehicle accidents, in 2006 and 2008 respectively, for both of which she lodged claims and was successful in receiving compensation.
Subsequent to the accident in 2008, the Applicant had been able to return to work as a personal trainer / fitness instructor at a gym, albeit performing limited hours. Prior to the injury in April 2014, the Applicant had partially regained her capacity for work and had been actively engaged in employment.
After the incident in April 2014, the Applicant made two claims for TPD insurance. One application was successful, but the application made to one of the insurers was denied on the basis that the insurer alleged that the incident in April 2014 was an aggravation of a previous knee injury and the Applicant was incapable of working in an active or gainful capacity at the time of injury.
The process of conducting the claim included obtaining evidence to prove that the claimed knee condition was not a pre-existing condition, and to establish that the Applicant satisfied the “at work” eligibility criteria, required under the policy, as at the relevant date.
The application was complex due to the previous claims and the vast amount of medical evidence available, some of which suggested that at various points in time, the Applicant had not been fit for employment.
Ultimately, the relevant support was obtained from the Applicant’s doctors and employer and submissions were made on the basis of that evidence.
Ultimately, the Applicant’s claim for TPD benefits was successful, on the basis of the further submissions, and she was able to access her TPD benefits and the balance of her superannuation fund.
Date of accident: 6 April 2014
Date of finalisation of TPD claim: 6 November 2017
Total TPD lump sum: $106,455.00
The Claimant was injured in a motor accident in July 2015. At the time of the accident, he was 63 years of age. He had previously been healthy and was working at a local plant nursery on a part time basis.
The Claimant could not recall the details of the accident, due to his injuries, however, the circumstances were such that another driver who had been travelling towards the Claimant’s vehicle, traveled onto the wrong side of the road and collided head-on with the Claimant’s vehicle.
As a result of the accident, the Claimant sustained bleeding to the brain, a fractured foot, injury to his eye in the form of a right sixth nerve palsy and psychological injuries. The main problems that he suffered following the accident were the loss of use of his right foot, double vision and inaccuracy of judgment due to affected vision and memory loss.
The insurer accepted liability on the basis that its insured driver was at fault.
Due to his injuries and the need for various surgical procedures, the Claimant was unable to work for a period of approximately 13 months. After that period, the Claimant was fortunate to have an understanding employer, who modified his duties in such a way as to enable him to make a graduated return to work.
Prior to the accident the Claimant had been employed as a nursery tradesperson, serving customers and assisting with advice regarding all aspects of the nursery. Upon his return to work, as well as a reduction in hours, the range of tasks that the Claimant was able to perform was reduced significantly.
The Claimant’s age was an issue with respect to his claim for future loss of income. At the time of the accident, he was 63 years of age. His instructions were that but for the accident, he had intended to work until the age of 70 or beyond. The employer provided written confirmation that there was an expectation that the Claimant would continue to work past the usual retirement age of 65, and that other employees had continued to work past that date.
The Claimant lived on a 2 acre property with his wife and as a result of the accident, was unable to maintain the lawns and gardens, or perform the handyman related jobs or small tasks that he had previously performed around the home.
The insurer initially declined to concede that the Claimant’s injuries were greater than 10% whole person impairment, but following an application to the Medical Assessment Service for determination of this issue, a concession was received. The Claimant was therefore entitled to compensation for pain and suffering.
Ultimately, the claim was made in respect of past and future treatment expenses, past and future economic loss, past and future domestic assistance and pain and suffering. The matter was ultimately settled for the sum of $410,000.00 inclusive of costs.
Date of accident: 31 July 2015
Date of settlement: 19 December 2017
Total settlement: $410,000.00
The Applicant, a 39 year old male, was injured following a fall from a ladder at his home in November 2013. As a result of the fall, he sustained an injury to his right knee.
At the time of the accident, the Applicant was employed as a Store Person Team Member with Coles Logistics. As a result of the injury, he ceased work in December 2013 and although he made one attempt to return to work, he was unable to sustain his pre-injury role in any capacity.
As the injury did not occur in the course of the Applicant’s employment, he was not entitled to Workers Compensation benefits. He sought to access benefits under his TPD (Total & Permanent Disablement) insurance under his superannuation policy. The Applicant simultaneously made an application for income protection payments. There was no dispute in relation to his entitlements under the Income Protection Policy.
The initial Claim for TPD benefits was lodged in November 2015. The insurer requested various additional information and documentation and made arrangements for the Applicant to be assessed, with respect to his eligibility under the relevant TPD criteria.
In order to satisfy the Policy definition, the Applicant was required to establish that he had been (as a result of injury or illness):
- totally unable to be employed or engaged in his or her occupation, business, profession or employment for a period of three consecutive months; and
- determined by the insurer at the end of that three month period, to be permanently incapacitated to such an extent as to render the insured member unlikely ever to be employed or engaged in any gainful occupation, business, profession or employment, for which the insured member is reasonably suited by education, training or experience.
The Applicant’s pre-injury role involved the operation of an automated system for quality assurance. The role required the Applicant to stand up for extended periods, which was outside of his post injury capacity.
An examination of the Applicant’s employment history (and specifically, his education, training and experience, as required by the Policy definition) was that prior to his pre-injury role, the Applicant’s employment history was sparse and he had very little in the way of transferrable skills. Despite this, the insurer maintained that the Applicant held a residual capacity for work. It was necessary to obtain a Vocational Capacity Assessment which specifically identified the post-injury restrictions of the Applicant, and specifically explained why the Applicant was likely to be unemployable as a result of the injury.
The insurer initially indicated its intention to decline the Application for Benefits but ultimately, arranged an Independent Employability Assessment which thoroughly examined the Applicant’s pre-injury role and pre-injury employment history.
On the basis of that assessment, the Insurer accepted the Applicant’s claim for benefits.
The approved amount was $115,421.98, which included the insurance benefit in the sum of $106,290.00 and release of the balance of the Applicant’s superannuation account.
Date of accident: 27 November 2013
Date of finalisation of TPD Claim: 14 May 2018
Total TPD lump sum: $115,421.98
Our client, a 34 year old mother of two, suffered from stress incontinence. She was extremely fit and active, attending the gym almost daily and enjoyed an active social life with friends and her family, including going on vacations together.
In March 2012, she consulted with a gynaecologist in relation to her stress incontinence. She was advised to undergo “sling surgery”, which entailed inserting a tape to deal with the stress incontinence.
The surgery was conducted on 11 April 2013, however, it was not successful, resulting in significant and ongoing pelvic and groin pain requiring her to attend an Emergency Department for treatment.
Ultimately, she underwent four further surgeries and procedures in an attempt to eliminate the ongoing post surgical pain. This pain affects all aspects of her life including her quality and enjoyment of her life in fulfilling her roles as a wife and mother.
Expert evidence was obtained in relation to the cause of the Plaintiff’s pain. It was alleged that the pain arose from the incorrect positioning of the tape which ultimately resulted in operative procedures to remove it. Despite this, the Plaintiff’s pain and restriction continued.
Proceedings were commenced claiming damages and those proceedings ultimately were referred to mediation and despite the denial by the Defendant of the significance of the Plaintiff’s restrictions, further negotiations post mediation resulted in settlement of the claim, which included treatment expenses, wage loss, domestic assistance and pain and suffering, settled for the sum of $1,050,000.00.
Date of Accident: 11 April 2013
Date of Settlement: 20 March 2018
Total Settlement: $1,050,000.00
The Plaintiff was injured in an accident which occurred at Minto Marketplace in January 2014.
At the time of the accident, the Plaintiff was 57 years of age and by the time of settlement she was 60 years of age.
Prior to the accident, the Plaintiff had suffered a couple of significant injuries. In June 2009, she sustained injuries to her head, neck and back in a motor vehicle accident. In October 2012, she suffered a right knee injury which was caused by a work related accident.
The accident in January 2014 occurred as the Plaintiff was exiting Minto Marketplace with her daughter. The accident occurred when the Plaintiff lost her footing on an unmarked raised gutter outside the exit to the Marketplace, as the Plaintiff was returning to her car. She suffered a fracture of her left ankle and foot, as well as aggravation of her right knee injury.
The Insurer representing the owners of Minto Marketplace denied responsibility for the Plaintiff’s injuries, as did the company involved in constructing the kerb in question.
The Plaintiff’s allegation was that the gutter was not sufficiently marked to identify to patrons the sudden drop in height.
As a result of the injuries to her left ankle and foot, as well as the aggravation of her right knee injury, the Plaintiff experienced swelling and pain, required a significant amount of physiotherapy and ongoing attendances upon her GP and specialist, and was required to wear a moon boot for 6 months.
The Plaintiff was, and had been for many years, employed as a primary school teacher. During the six months that she was wearing the moon boot, she was unable to work. She returned to work on light duties. Ultimately, she was able to return to her usual working hours but was unable to perform all of her duties, including attending excursions, and performing playground duties. The Plaintiff was also restricted in simple tasks such as squatting down to low cupboards and walking up and down stairs.
Proceedings were commenced in the District Court and a Hearing date was set for March 2018.
The Plaintiff’s claim included past and future out of pocket expenses, loss of future earning capacity (specifically a loss of opportunity for promotion and the expectation of early retirement, due to her inability to perform all of the roles required of her), past and future domestic assistance and compensation for pain and suffering.
Ultimately, the parties negotiated a settlement in the sum of $90,000.00, inclusive of all costs and expenses. This amount included all of the above heads of damage.
Date of Accident: 12 January 2014
Date of Settlement: 24 November 2017
Total Settlement: $90,000.00
On 6 March 2010, the Plaintiff, whilst employed as a boilermaker, was carrying a metal vessel weighing approximately 20kgs, when he stepped onto an air compressor hose causing him to twist awkwardly and jar his back.
As a result of the incident, the Plaintiff attempted to continue to work but developed significant right leg pain and a sharp burning sensation in his hip requiring specialist attention. Despite cortisone injections, the Plaintiff’s pain did not abate and in November 2011 he underwent a lumbar laminectomy and fusion.
In August 2012, the Plaintiff instructed Marsdens to provide advice in relation to a lump sum compensation claim pursuant to the provisions of the Workers Compensation legislation. Medical evidence was obtained in support of the Plaintiff’s injuries and disability, however, the Workers Compensation insurer disputed the Plaintiff’s degree of impairment and the matter was referred to an Approved Medical Specialist appointed by the Workers Compensation Commission to determine the degree of impairment.
The Workers Compensation insurer ceased making weekly payments or paying for the Plaintiff’s treatment expenses and he was forced to apply to Centrelink for income support and utilised the Medicare system for his treatment.
Subsequently, a Medical Appeal Panel determined that the Plaintiff’s Whole Person Impairment exceeded 15% and the Plaintiff therefore received lump sum compensation for his impairment and commenced a claim for wage loss, asserting that his employer was negligent in failing to provide a safe place of work.
The Plaintiff’s claim proceeded to an unsuccessful mediation, subsequent to which Court proceedings were commenced against the employer. The matter was ultimately resolved at a settlement conference for the sum of $650,000.00 inclusive of costs, compensating the Plaintiff for his past and future loss of earnings and past and future lost superannuation.
Date of accident: 6 March 2010.
Date of settlement: 28 February 2018
Total settlement: $650,000.00.
The claimant was injured in an accident in June 2014. At the time of the accident the claimant was 80 years of age and by the time of settlement she was 83 years of age.
Prior to the accident, the claimant was a healthy and active 80 year old woman. She had not been receiving any significant treatment for health issues and did not require personal care or assistance.
The accident occurred when the claimant was a passenger in a vehicle driven by her daughter. They were waiting at a T-intersection to turn right, when another vehicle attempted a right hand turn across the front of their vehicle, taking the corner too tightly and colliding with the right front section of the vehicle, crushing the bonnet and pushing them back several metres.
The driver of the other vehicle was charged in relation to the incident and the insurer accepted liability in respect of the claim.
As a result of the collision, the claimant sustained multiple injuries to her nasal bone, injuries to her right ribs, injury to her thumbs and the third finger of the left hand, an injury to her neck and significant psychological injuries.
The claimant required a significant amount of treatment, including surgical procedures to her nose. There was some question as to whether the claimant would undergo the recommended procedures, due to her age.
The claimant’s matter was referred to the Medical Assessment Service and her combined physical injuries were assessed at 14% whole person impairment. The claimant was therefore entitled to compensation for pain and suffering.
The injuries sustained in the accident significantly affected the claimant’s lifestyle, including her relationship with her daughter (who also suffered injuries in the accident) and her granddaughter, who had previously lived with her. The relationship between the claimant and her family broke down to the point where she asked them to leave the home and find their own accommodation.
As the claimant had not been working prior to the accident (due to her age) there was no claim for wage loss, however, she required additional assistance with domestic chores, particularly after her daughter and granddaughter moved out of her home.
The matter was resolved by way of settlement negotiations with the insurer. The settlement included compensation for past and future medical expenses, future domestic assistance and pain and suffering. The claim was settled for the total sum of $175,000.00, inclusive of costs, which is a significant sum for a claimant aged 83 years old.
Date of Accident: 20 June 2014.
Date of Settlement: 30 August 2017
Total Settlement: $175,000.00.
The Applicant was injured in a motor vehicle accident in March 2006. At the time of the accident, she was 27 years of age.
As a result of the accident she sustained fractures of her cervical and thoracic spine, a tear of her right hip and psychological injuries including depression and anxiety.
Prior to the motor vehicle accident, the Applicant had been employed as a registered nurse. Following the accident, as a result of her injuries, she was unable to continue this work.
The Applicant lodged a third party claim in respect of her motor vehicle accident and ultimately, settled the claim for a significant sum of damages which included past and future treatment expenses, past and future domestic assistance, past and future economic loss and pain and suffering.
In 2011, the Applicant completed a Certificate in Pathology, which enabled her to obtain employment with a pathology collection company. This work was significantly less demanding than the nursing work she had done in her pre-injury role, however, she was still only able to perform this work for a period of 4 months before she was forced to terminate her employment due to her ongoing pain and requirement for medication.
In 2014, the Applicant lodged an application for Total and Permanent Disablement (TPD) Benefits pursuant to the entitlements under her superannuation policy with First State Super.
The process of assessment by First State Super took a significant period of time and included obtaining medical evidence from the Applicant’s previous employer and medical practitioners. After lodging the TPD Benefits application, but prior to the determination of her entitlement, the Applicant was offered employment driving a
dump truck. She accepted the role and managed to perform the duties required, despite her ongoing disabilities and the requirement for significant amounts of
medication, the latter of which in particular caused her a significant amount of concern due to the nature of the duties (i.e. driving a dump truck).
Despite the fact that the Applicant had been successful in obtaining employment, her entitlement to TPD benefits was dependent on whether she was "likely ever to engage in or work for reward in any occupational work for which she was reasonably qualified by reason of education, training or experience", as at the date of assessment (which was a date 6 months after the motor vehicle accident in 2006). The consideration of that definition would require a consideration of the education, training and experience she had as at the date of assessment, not as at the date of obtaining employment in 2017.
Ultimately, First State Super confirmed the Applicant’s entitlement to benefit. The Applicant received the sum of $190,266.02, representing the TPD benefits and the balance of her superannuation account.
Date of accident: 9 March 2006
Date of finalisation of TPD claim: 23 May 2017
Total TPD lump sum: $190,266.02
The claimant was injured in a motor vehicle accident which occurred on 22 November 2013. At the time of the accident the claimant was 41 years of age.
On the morning of 22 November 2013, the claimant was riding his motor scooter when a motor vehicle attempted to make a right hand turn across his path and a collision occurred. The claimant was thrown off his motor scooter, a distance of six to eight metres, onto the roadway.
Due to his serious injuries, he was conveyed by ambulance to Royal North Short Hospital. His injuries included a highly comminute compound fracture of the femur and patella, as well as multiple other injuries. He remained an in-patient in hospital for six days before discharge and undergoing significant rehabilitation.
His injuries included not only the comminute fracture of the right femoral shaft and the right patella, both requiring open reduction and internal fixation, but also further damage to the right patella, an injury to his left wrist, injuries to his back and neck, an injury to the tendons of his left knee and scarring. These injuries resulted in the claimant being diagnosed with a post traumatic distress disorder and a major depressive disorder and left him in chronic pain.
As a result of his injuries, the claimant, a registered nurse, had been unable to return to his occupation and had commenced studies to qualify in an occupation less physically demanding than as a registered nurse.
The insurer admitted fault on behalf of its insured driver and the matter proceeded as an assessment of damages only.
Despite the claimant’s significant injuries, the insurer was unprepared to admit that his injuries exceeded the 10% Whole Person Impairment threshold which would entitle him to compensation for his pain and suffering. As a result, the matter was referred to the Medical Assessment Service (MAS) and he was independently assessed as exceeding the 10% threshold both in relation to physical and psychiatric injuries.
Several attempts were made to resolve the matter by negotiation at Informal Settlement Conference, but these proved unsuccessful. The matter was then referred to the Claims Assessment and Resolution Service (CARS) and was referred to a Claims Assessor for assessment. Ultimately, the matter resolved on the morning of the Claims Assessment Hearing for the sum of $2,000,000.00 inclusive of costs and expenses.
Date of Accident: 22 November 2013
Date of Settlement: 26 July 2017.
Settlement Amount: $2,000,000.00.
The 29 year old plaintiff was pushing her toddler in a pram and walking her dogs, when another dog appeared from a nearby property. The other dog started to attack the plaintiff’s dogs and, as she was attempting to stop the commotion, the dog knocked the plaintiff to the ground resulting in a fracture of her right wrist.
The plaintiff attended a local hospital where she was diagnosed with a closed fracture of the distal end of the right radius. This was immobilised but did not require operative treatment.
At the time of her injury, the plaintiff was on maternity leave and was undertaking training to qualify as a beauty therapist. As a result of the injury her training was delayed for several months.
The owner of the dog from whose property it had escaped was identified and the home and contents insurer of that property agreed to indemnify the owner for any damage caused by the dog. Pursuant to the provisions of the Companion Animals Act, the owner of a dog which causes an injury in a place where the dog is not ordinarily kept (in this case, on the public footpath) is responsible for the damage caused (including personal injury and damage to property) irrespective of fault.
After obtaining medical evidence in support of the claim, settlement negotiations resulted in the parties agreeing to resolve the matter for the sum of $43,250.00 inclusive of costs. This figure was reflective of the plaintiff’s pain and suffering, wage loss and treatment expenses.
Date of accident: 7 December 2016
Date of settlement: 20 June 2017
Total settlement: $43,250.00 including costs
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 Green slip 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 Settlement: 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 liability 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 labour 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.