Razorback Road Strikes Again – Injured Driver Awarded Over $450k In Damages

Compensation, CTP Insurance

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DATE PUBLISHED: August 6, 2021

In the decision of Seiffert v Chadwick & TAC [2021] QDC 8, Judge Long SC of the District Court at Maroochydore awarded an injured motor vehicle driver damages of over $450,000.00. 

On his birthday, 7 October 2016, the Plaintiff went for a drive around the scenic Sunshine Coast hinterland.  He was stationary in a Toyota Yaris on Razorback Road, Montville when his vehicle was rear-ended by the Defendant’s Toyota Camry.  

Liability was not in issue at the Trial and all that was to be resolved was the amount of damages to be paid to the Plaintiff. 

The Plaintiff was 33 years of age at the time of the accident and about 37 years of age at the time of Trial in 2021. 

The Plaintiff had a lengthy employment history in the construction industry. He returned to work following the accident pushing through the pain because he was concerned about making any complaints of injury jeopardising his employment. The Judge noted that he had undergone some physiotherapy and then consulted his general practitioner. The Plaintiff gave evidence at Trial that he took on a permanent position with the CFMEU because it meant he was doing less physical work and could manage his symptoms more appropriately. This resulted in a reduction in salary. The Plaintiff’s evidence at Trial was that but for the accident, he would not have taken this new job and would have continued to earn higher wages “on the tools”. 

The Defendant pointed to the Plaintiff’s reporting to Ms Stephenson, Occupational Therapist, that he had ceased his employment to take on the union delegate role and that he was given his role because of his extensive experience. The Defendant also highlighted an email from the Plaintiff of 8 May 2017 to his employer with respect to his resignation stating ‘…I had recently been offered a new position to further my career. I wish to put forward my resignation of a site delegate with Multiplex effective immediately…’. 

The Defendant also highlighted the absence of any evidence of the Plaintiff seeking medical treatment prior to changing jobs as well as his continued attendance at a gym three or four times per week. 

His Honour noted the evidence of Dr Wallace, Orthopaedic Surgeon, that the Plaintiff had sustained a 7% whole person impairment referrable to the cervical spine and would not be able to return to heavy work but would be able to continue in a supervisory or sedentary capacity such as a union official. 

The Court noted Dr Wallace maintained his opinion notwithstanding cross-examination that he did not detect muscle spasm and guarding on examination but did detect an abnormal presentation in terms of asymmetry motion in the cervical spine which the Plaintiff had not consulted his GP until about 18 months after the accident and radiological imaging excluding any compromise of the cervical spine. 

The Defendant relied upon evidence from Dr Fraser, Orthopaedic Surgeon, whose evidence was to the effect there was no impairment nor restriction in capacity for employment arising from the accident.

His Honour noted that section 11 (1)(a) of the Civil Liability Act 2003 (Qld) (CLA) required consideration of whether any breach of duty by the Defendant was a necessary occurrence of the harm that the Plaintiff suffered - which really meant the question was whether the Plaintiff’s decision to seek employment away from active construction work was as a consequence of the accident. 

As is often the case, the presentation of a lay witness at Trial was determinative of the outcome. His Honour said that the Plaintiff ‘…impressed as a frank witness without any indication of tendency to embellish or overstate the situation.'  

His Honour accepted the Plaintiff’s evidence that the resignation email was him ‘being nice’ on ceasing employment: 

…there was no necessity to refer to his injury nor is there any expression of interest, here or elsewhere, in respect of involvement in union activities or seeking to take advantage of the opportunity to further his career in that respect, any inconsistency with a finding that a precipitant for seeking …such a less remunerative position lay in his injuries and related symptomatology and the impediment this presented to his continuing with Multiplex or any active construction work. 

The Defendant tried to make much of the absence of the Plaintiff attending upon his GP to document complaints of pain and discomfort, however, His Honour accepted the Plaintiff’s personality was one of continuing to struggle with heavy work whilst looking for other opportunities. Thus, His Honour preferred the evidence of Dr Wallace over Dr Fraser. 

Ultimately, His Honour accepted that the accident was the cause of the Plaintiff’s decision to cease heavy construction work and move into a lighter role. 

His Honour assessed general damages on the basis the Plaintiff sustained a 7% whole person impairment of the spine resulting in a moderate injury under Item 88 of the Regulation at an ISV of 9. 

In terms of past economic loss, the Court awarded damages of $77,348.00 reflecting the difference in earnings the Plaintiff may have notionally have generated but for the accident less his actual earnings.

In terms of the critical assessment of future economic loss, the Court accepted the Plaintiff would suffer an ongoing loss of $442.68 net per week over 30 years to age 67 and discounted by 15% for contingencies resulting in an award of $309,300.00. 

The Court also allowed past out-of-pocket expenses and His Honour accepted that most of these expenses were consistent with the diagnosed injury and so, therefore, accepted a causal connection between the expense incurred and the accident. 

His Honour awarded a global sum of $7,500.00 to reflect future treatment over the balance of the Plaintiff’s life expectancy. 

This case highlights the importance of ensuring that medical experts are appropriately briefed with all relevant evidence and that ultimately the outcome of the Trial turns upon how witnesses present in the witness box. We note that there was no reference to any social media evidence referred to in the decision and respectfully highlight the importance of this sort of evidence grows increasingly more relevant. 

Should you have any queries please do not hesitate to contact Carl Moseling, Principal of our office on 07 539820 to discuss the assessment of damages claims arising from motor vehicle accidents. 

You can find the decision here.

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