Stanka Kostic v Tony Gwyne (QBE) [2024] SADC 121

DATE PUBLISHED: October 15, 2024

key takeaways

Pre-existing injuries and conditions, as objectively recorded, are crucial in determining compensable injury, loss and damages.
Medico-legal experts must rely on factual evidence, considering all available pre- and post-accident objective evidence, rather than assumptions.
Failure to account for pre-existing injuries in medico-legal reports can results in the expert’s evidence being disregarded or given less weight in Court.
Prior to a Respondent being responsible for disentanglement of injuries, Applicants must first prove, on the balance of probabilities, that the injuries allegedly suffered were caused by the accident arising from the Respondent’s negligence.
A higher Injury Scale Value (ISV) for one injury does not always automatically make it the ‘dominant injury’ if another injury clearly has a more significant impact on the claimant.

Judgment in the case of Stanka Kostic v Tony Gwyne (QBE) [2024] SADC 121 was handed down by Judge Barklay in the District Court on 30 September 2024. While the case was unique, particularly due to the Applicant being unrepresented at Trial, it offers several noteworthy insights from a District Court perspective.

Claim Background

The Applicant, a 56-year-old cyclist, claimed multiple injuries after the Respondent’s motor vehicle allegedly caused her to fall from her bicycle on 10 August 2017. She reported injuries to her neck, back, shoulder, hip and psychological trauma.
The Respondent argued the accident was minor, with any injuries being minimal and largely subsumed by the Applicant’s pre-existing conditions, which included a well-documented history of the same injuries.

the evidence

Three expert witnesses provided evidence:

Mr Tindaro Fallo, Psychologist (for the Applicant);
Dr John Bastian, Rehabilitation Consultant (for the Applicant); and
Dr Fredrick Phillips, Orthopedic Surgeon (for the Respondent).

The Applicant and her general practitioners (Dr Jack Kerry and Dr Marko Zuvela) also gave evidence.

The Applicant denied suffering pre-existing injuries, attributing all her injuries to the subject accident.

Dr Kerry noted the Applicant did not report accident-related injuries until 17 August 2017 and had previously sought a permanent Disability Support Pension for conditions including back pain, depression, anxiety, right shoulder pain and right hip pain in the months and years immediately preceding the subject accident.

Dr Zuvela, who treated the Applicant post-accident, attributed her injuries to the subject accident but was deemed to have misled the Court by failing to reference the Applicant’s pre-existing conditions.

Mr Fallo attributed the Applicant’s psychological symptoms to the subject accident, relying on her subjective claim of no pre-existing psychological or psychiatric issues.

Dr Bastian, though initially supporting the Applicant’s claims, later conceded during cross-examination that he had not considered her pre-existing history of significant shoulder, neck, back or hip issues.

Dr Phillips testified that the Applicant suffered minor injuries to the cervical spine, shoulder, and hip.

The court's finding

Dr Phillips testified that the Applicant suffered minor injuries to the cervical spine, shoulder, and hip.

The Applicant had pre-existing conditions affecting her lower back, neck, right hip and shoulder, for which she had sought treatment long before the subject accident.
While the Court accepted that the Applicant likely suffered some relatively minor injuries to her neck, shoulder and hip, it also found that any injuries would have resolved within six to 12 weeks of the accident, and that any ongoing impairment or injury was related to the pre-existing injuries, conditions or symptoms.
Expert evidence from Dr Bastian and Mr Fallo was given little weight due to their failure to account for the Applicant’s pre-existing symptoms, injuries and conditions. Dr Phillips’s evidence was preferred.

The Applicant’s ‘dominant injury’ was a minor shoulder injury (Item 93), which resolved within six to 12 weeks, warranting an award of three ISV points. No adjustments were made for other injuries as they were also deemed to have resolved in the same timeframe.
The Applicant’s claims for economic loss, past and future care, and medical expenses were rejected, as her pre-existing conditions, rather than the subject accident, were found to be the primary cause of her inability to work and need for care.

Summary

The Court dismissed the Applicant’s claim, marking a significant win for the Respondent insurer and Respondents. This judgment highlights the importance of pre-existing conditions in personal injury claims and serves as a reminder of the risks of litigation to Applicants.

It is also a notable example of how medico-legal experts’ failure to account for prior injuries can weaken a case. Although the Applicant was unsuccessful in this case, had she been legally represented and better prepared, the result may have been different.

Anthony Farinola

Special Counsel

Anthony Farinola

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Case Summary: Stanka Kostic v Tony Gwyne (QBE) [2024] SADC 121

key takeaways

Claim Background

the evidence

The court's finding

Summary

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