Mr H Motor Vehicle Accident
Date of Injury: December 1999

Mr H is a gentleman who was a pensioner in his late sixties at the time of the motor vehicle accident on the 23rd December, 1999. Mr H had a car accident and as a result sustained multiple injuries.

He first approached Gerard Malouf & Partners for the purpose of providing him with some general advice as to his rights. Mr H provided instructions for us to lodge a Claim Form on his behalf.

His injuries included injury to the right leg, right ankle, rupture to the rotator cuff of the left shoulder and head injury. He suffered from multiple disabilities including pain and discomfort in those areas and restriction of movement.

Prior to the accident he was a relatively fit gentleman who engaged in going on outings and was also very active around the home gladly assisting his wife with domestic duties around the home. In fact his wife was also ill and required assistant care which he provided. The insurer admitted liability in terms of the claim but disputed the fact that Mr H's injuries exceeded the 10% impairment threshold required under current law to enable a claimant to obtain an award for non-economic loss (otherwise commonly known as general damages for “pain and suffering”). In fact the first medical assessment that came in from MAS (Medical Assessment Service) of the Motor Accident Authority found that the injuries were not greater than 10%. The matter was subsequently referred a medical specialist frequently used by this firm. The Medical Panel after receiving the report from the medical specialist appointed by this firm to examine Mr H determined that there was in fact a 15% whole body impairment suffered by Mr H. The initial medical assessor had not factored into his assessment the injury to the left shoulder also sustained by Mr H.

We successfully argued on behalf of Mr H that the injury to the right leg and right ankle also caused Mr H to lose balance which directly resulted in him significantly injuring his left shoulder. In fact, Mr H on one occasion lost his balance and fell causing the fresh injury to his left shoulder. The initial assessment report stated that due to his age our injured client had significant pre-existing degenerative changes and therefore the impairment to the left shoulder which in itself was assessed as being greater than 10% ought to be reduced by 70% because of the pre-existing age related degenerative changes. We successfully argued an appeal that there was no previous history or evidence of any symptoms in relation to the shoulder and therefore the reduction of 70% for pre-existing age related degenerative changes was not fair and reasonable. The Appeal Review Panel and Mr H’s specialist concurred with our submissions after having him re-assessed.

Mr H after the motor vehicle accident was conveyed by ambulance to the Royal North Shore Hospital where he was initially treated in relation to the right leg. After being released from hospital he continued to have swelling in the foot and returned to hospital for removal and replacement of the plaster. He subsequently attended on his GP and had physiotherapy treatment for a short period of time. For the initial six month period after the accident he was very much restricted and not able to do his normal pre-accident domestic and handyman chores. He required assistance from his son with dressing and undressing and attending to personal hygiene requirements.

It was submitted on his behalf that prior to the accident he enjoyed going on walks and social outings. Prior to the accident he was able to sleep well but all this was affected after the accident as a result of his injuries. He was also prior to the accident able to for example do his own gardening, go to the shopping centre and attend to personal shopping and domestic chores. After the accident his son and other family members now attend to such matters on his behalf.

Gerard Malouf & Partners were able to obtain statements from family members in support of the claim for provision a carer or at least of assistant care in terms of the gardening and household chores and transporting him to and from the shopping centres and also to Doctors appointments. Mr H also claimed that he was no longer able to care for his wife who was ill and frail and that after the accident family members including his daughter provided such assistance. Gerard Malouf & Partners arranged for Mr H to be medically examined by one of the medical specialist on our panel and assessment who provided a report confirming the need for ongoing assistant care. We also obtained Reports from his treating Doctors who confirmed that there was no history of shoulder problems or leg problems before the injuries he sustained in the motor vehicle accident. We also qualified a Specialist Orthopaedic Surgeon, who confirmed that the significant restriction in the left shoulder did not exist prior to the injury.

The insurer of course arranged for their own Doctor to examine Mr H. The insurer’s doctor expressed an opinion that the facture of the left ankle was minor and also that the surgery recommended to the left shoulder was not really necessary. The insurer's Doctor found that the injuries sustained by Mr H did not exceed the 10% threshold. He noted that any significant impairment that he had in relation to the shoulder was also 75% due to pre-existing degenerative changes. In fact he only related the right lower leg injury to the accident and not the left shoulder at all. The insurer's Doctor also considered that domestic assistance was not required and that if it had been required was only necessary for a period of two to three months for a minimal number of hours immediately after the accident.

As a result of the experience of the staff of Gerard Malouf & Partners, a review of the file was conducted by the Solicitor, who had the carriage and the Managing Solicitor who is an Accredited Personal Injury Specialist Lawyer. It was determined to submit an appeal in relation to the findings of the MAS on the basis of the incorrect assumptions presented by the insurer. After having satisfactorily exceeded the 10% threshold level we spoke to Mr H and obtained his instructions to convey a settlement offer. In motor vehicle accident claims the only time that an insurer will consider an offer involving non-economic loss damages is once the medical condition has stabilised and an assessment in terms of non-economic loss (pain and suffering) has been received.

Of course, an insurer if it wishes, can concede that an injured party has in fact suffered a greater than 10% whole person impairment. In this case such an assessment had been submitted. The insurer tried to argue that the amount to be awarded for general damages should be significantly reduced because of his age however we maintained that this was incorrect even though some consideration would be conceded in terms of age. A claim was also made in terms of all the past medical expenses and the future need for medical expenses bearing in mind the life expectancy of Mr H. A claim was made for past and future care. In that regard we had obtained medical reports to support such claim as well as supporting statements from family members who had been providing such assistance. The matter was ultimately listed for assessment of damages of the claim by way of a formal Application submitted on behalf of Mr H.

At the Assessment Hearing detailed written submissions were presented on behalf of Mr H dealing with the various heads of damages including claims for past and future care. As Mr H was well into his sixties and had been retired for sometime no claim was made for past or future economic loss. The Assessment of Damages Hearing came before the Claims Assessment and Resolution Service and the Assessor who found in favour of Mr H and awarded damages in excess of $150,000.00. The largest components of the claim were for future care (in excess of $60,000.00) and general damages (pain and suffering) in excess of $60,000.00.

Considering that the insurer had only previously made offers of $35,000.00 to $40,000.00 this case clearly illustrates that the expertise and experience of an Accredited firm of Specialist Lawyers such as Gerard Malouf & Partners significantly enhanced Mr H's claim for personal injury compensation. The submissions made on behalf of Mr H by his Lawyers most certainly assisted the Assessor in his adjudication in favour of our client.

This is clearly another example that claims for personal injury compensation ought be left in the hands of Accredited Specialist Personal Injury Lawyers such as Gerard Malouf & Partners. Our team of Lawyers including an experienced Solicitor dealing with the day-to-day carriage of the file and supervision and input by an Accredited Personal Injury Specialist Solicitor assisted in ensuring that the maximum possible result was obtained. In the circumstances, had not Mr H been represented he may well have succumbed to accepting the initial offer conveyed by the insurer and not having the benefit of resources and expertise to fight on and proceed with the matter to ultimate final favourable Assessment. Mr H would not have had the expertise to prepare detailed submissions for example with regards to his claim for past and future care. It was only by instructing a Specialist firm such as Gerard Malouf & Partners that he was able to maximise the result in his favour. This is another example where an elderly pensioner could have initially been heavily discriminated against by the legislation had it not been for the efforts of his Solicitors in actively pursuing the matter and ensuring his rights were fully protected.

The above case clearly illustrates the importance of someone who has been involved in a motor vehicle accident to seek immediate professional legal assistance from Gerard Malouf & Partners or another lawyer. There are clearly matters that are not generally known to members of the public and advice is required to ensure that your rights are fully protected and that all procedural matters are complied. Mr H was not aware when he first saw us that he was required to complete a Personal Injury Claim within 6 months of the date of the accident. Neither was he aware that there was a three year limitation period to commence formal legal proceedings. There is for example a legal requirement that the accident be reported to the Police Service within 28 days of the accident date. This case illustrates the need to seek advice and assistance from a Specialist Personal Injury Lawyer who specialises in motor vehicle injury claims and who has extensive dealings with the Motor Accident Authority and more importantly significant success in pursuing such claims. Gerard Malouf & Partners is a firm that has over 22 years of experience and from the commencement of the Motor Accident Authority in October, 1999 has had a hands on involvements in carefully pursuing claims and having them referred for formal assessment and securing favourable results for our many valued clients.

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