For the Defendant - March 2016

Welcome to the latest edition of our newsletter to keep our clients up to date with the latest developments in personal injury and insurance law in Queensland & what they mean for you.

Public Trustee in Dependency Claims

In a recent Lord Campbell’s action, Maggs v RACQ Insurance Limited [2016] QSC 41[1], a dependent child unsuccessfully applied to receive fund management fees as part of her award for damages.

Counsel for both sides accepted that there is an important distinction between damages recoverable at common law, for the tort of negligence, and the limited categories of damages recoverable under the statutory cause of action for loss of dependency. 

His Honour cited with approval remarks made by the Supreme Court[2] and the New South Wales Court of Appeal,[3] under the old statutory regime, to the effect that Courts do not allow such fees on top of damages which already represent a plaintiff’s true pecuniary loss.

In applying that reasoning to the new legislative scheme, his Honour found that there was nothing in the provisions of the Civil Proceedings Act 2011 (Qld) (“the CPA”) or its extrinsic materials to suggest an intended change in the established position on public trustee fees. 

Given the volume of claims made by dependent children who lack capacity, this issue comes up quite often in Lord Campbell’s actions. This case is thus a useful clarification that, despite replacing the Lord Campbell’s provisions of the Supreme Court Act with the CPA in 2011, the position regarding the recoverability of fund management fees is unchanged.

Minor Whiplash Claim Defeated by Causation Issue

George v Morgan & Anor[2016] QDC 52 was a CTP claim where the Plaintiff unsuccessfully alleged she suffered a soft tissue spinal injury when a vehicle reversed into her parked car at a petrol station.

Both Dr Todman, briefed by the Plaintiff’s solicitors, and Dr Pincus, on behalf of the insurer’s solicitors, were briefed with security footage of the incident. The parties agreed that the velocity on impact was minimal - between 2.8 and 6.2 kilometres per hour. There was, however, disparate medical opinion as to whether the impact was sufficient to cause long-term injury.

 Weight was given to the Plaintiff’s GP records, which contradicted her evidence of an ongoing neck injury and supported an adverse finding of credit against her.

 In finding that the evidence indicated it was highly unlikely the Plaintiff’s symptoms had genuinely persisted beyond a few days post-accident, Judge Clare observed:

 “It is significant that Dr Todman did not claim to have come across one such case in his 30 years of practice, other than that of Ms George. One might reasonably expect that there have been many more low impact vehicle incidents than high speed ones. Yet two very experienced specialists could not identity even one other case where such low velocity had caused prolonged symptoms.”

 This case is a reminder that, even in seemingly straightforward whiplash accidents where the insured driver is clearly at fault, insurers can nonetheless defeat a claim if specialist medical evidence establishes that a plaintiff’s alleged injuries are inconsistent with the circumstances of the accident.

Scepticism Continues

This week has seen another favourable quantum decision for personal injury insurers: McGreevy v Cannon Hill Services Pty Ltd[2016] QSC 29.

The Plaintiff was a 28 year old male who allegedly ceased his pre-accident employment as a boner due to the effects of a work injury to his back and accompanying psychiatric sequelae. As one might expect, the claims for economic loss and care were substantial.

Justice Boddice preferred the evidence of orthopaedic surgeon Dr Williams to Dr Campbell, finding Dr Williams’ examination to have been more thorough and Dr Campbell’s opinion (and that of the occupational therapist, Mark Scalia) to be based on an exaggerated presentation of ongoing pain and restriction from the Plaintiff.

His Honour made adverse findings of credit against the Plaintiff and thus accepted the insurer’s argument that the Plaintiff’s decision to cease work was voluntary, rather than necessitated by his injuries.

The plaintiff therefore only received modest global awards for past and future economic loss. His Honour also found the requirement for future care was not met.

This is yet another decision which follows a recent trend of judicial scepticism, remarked upon in previous newsletters, towards Plaintiffs who exaggerate their accident-related symptoms and their alleged effects.

[1] Unpublished – pdf available from our office at request.

[2] Fox v The Commissioner for Main Roads (1988) 1 Qd R 120, 122-123.

[3] Rouse v Shepherd (1994) 35 NSWLR 250, 267-268.