A Win for Defendants on Quantum
In a judgment delivered on 4 June 2010, the Brisbane District Court awarded no damages for future losses due to a pre-existing condition.
In Miniague v Bronhutter & Allianz Australia [2010] QDC 224, the plaintiff sought damages for neck and spine injuries he sustained in a motor vehicle accident in 2005.
The defendants’ liability evidence was preferred and the plaintiff’s claim dismissed. Damages were nevertheless assessed under the Civil Liability Act 2003 (CLA).
The plaintiff was 60 at the time of the accident and 65 by the date of judgment. In 1998 he was involved in a motor vehicle accident where he sustained injuries to his lower back and neck. At issue was the degree to which this and other pre-existing problems were responsible for the loss he now claimed to be suffering.
The Court preferred evidence that the claimant’s pre-existing condition was responsible for all his current and future losses, apart from a short time immediately following the 2005 accident.
Medical reports from Dr Fraser generated as a result of the 1998 accident diagnosed soft tissue injuries to his neck and lumbar spine. A permanent partial disability of 4% was found, half of which Dr Fraser attributed to the accident and the other to pre-existing degenerative changes.
Evidence obtained following the 2005 accident indicated the plaintiff reported restrictions in movement and periodic pain in his neck and spine. The defendants tendered reports from Dr Toft. CT scans showed multilevel and advanced degenerative changes to the spine. Dr Toft diagnosed the plaintiff as having suffered strains of the musculoligamentous supporting structures of the cervical and lumbar spine in the presence of pre-existing and previously symptomatic degenerative changes. He found that the plaintiff had not suffered any permanent impairment due to the accident and diagnosed both the cervical and lumbar spines at 0% impairments of the whole person. He said that the plaintiff’s ongoing symptoms represented the natural history of his pre-existing condition.
In contrast, Dr Campbell (neurosurgeon) found the plaintiff suffered a chronic soft tissue injury to the lumbar spine which was 7% whole person impairment. 30% or 2.1% of that was due to his pre-existing pathology.
The Court preferred the evidence of Dr Toft on the basis that:
To download a full copy of the judgment click here.
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In Miniague v Bronhutter & Allianz Australia [2010] QDC 224, the plaintiff sought damages for neck and spine injuries he sustained in a motor vehicle accident in 2005.
The defendants’ liability evidence was preferred and the plaintiff’s claim dismissed. Damages were nevertheless assessed under the Civil Liability Act 2003 (CLA).
Issues
The plaintiff was 60 at the time of the accident and 65 by the date of judgment. In 1998 he was involved in a motor vehicle accident where he sustained injuries to his lower back and neck. At issue was the degree to which this and other pre-existing problems were responsible for the loss he now claimed to be suffering.
Decision
The Court preferred evidence that the claimant’s pre-existing condition was responsible for all his current and future losses, apart from a short time immediately following the 2005 accident.
Medical reports from Dr Fraser generated as a result of the 1998 accident diagnosed soft tissue injuries to his neck and lumbar spine. A permanent partial disability of 4% was found, half of which Dr Fraser attributed to the accident and the other to pre-existing degenerative changes.
Evidence obtained following the 2005 accident indicated the plaintiff reported restrictions in movement and periodic pain in his neck and spine. The defendants tendered reports from Dr Toft. CT scans showed multilevel and advanced degenerative changes to the spine. Dr Toft diagnosed the plaintiff as having suffered strains of the musculoligamentous supporting structures of the cervical and lumbar spine in the presence of pre-existing and previously symptomatic degenerative changes. He found that the plaintiff had not suffered any permanent impairment due to the accident and diagnosed both the cervical and lumbar spines at 0% impairments of the whole person. He said that the plaintiff’s ongoing symptoms represented the natural history of his pre-existing condition.
In contrast, Dr Campbell (neurosurgeon) found the plaintiff suffered a chronic soft tissue injury to the lumbar spine which was 7% whole person impairment. 30% or 2.1% of that was due to his pre-existing pathology.
The Court preferred the evidence of Dr Toft on the basis that:
- He had greater regard to the plaintiff’s overall medical condition when formulating his opinion and it was more consistent with the plaintiff returning to his employ as a cleaner 7 to 10 days after the accident
- Dr Campbell did not have or refer to the plaintiff’s GP notes when he prepared his initial report.
- Dr Campbell had insufficient regard to the plaintiff’s pre-existing lumbar injury and in particular Dr Fraser’s opinion that he had a 4% permanent impairment in 1998. This was not challenged and inconsistent with Dr Campbell’s opinion that now only 2.1% was due to the 1998 injury.
To download a full copy of the judgment click here.
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