GMP successfully defend the rights of a Doctor in the Court of Appeal

Published 19 Feb 2014

On 24 June 2006, the Claimant, Mrs Cervantes was injured in a motor vehicle accident. Liability was admitted by the insurer. On 11 January 2011 Mr Goudkamp, Claims Assessor issued a Certificate assessing Mrs Cervantes damages at $574,000.00, the amount included an allowance for future economic loss in the sum of $400,000.00 which was Awarded on the basis of a cushion.

The insurer sought review of Mr Goudkamps in the Supreme Court, that review was dismissed by Rothman J with Costs.

The insurer Appealed to the New South Wales Court of Appeal on the grounds that the Claims Assessor heard as follows:

  • Awarded buffer for past and future economic loss
  • Disregarded the medical evidence that the claimant had no psychiatric disability; and
  • Failed to consider the opinions of Dr Bodel that despite her injuries, the claimant could stay in her chosen career

The Court of Appeal rejected the insurer’s arguments. The lead Judgment was handed down by Basten JA with McColl and Macfarlan JJA agreeing; the Court considered the medical reports of Dr Bodel and Dr Akkerman. Justice Basten noted that there is a long line of Authorities that supports the notion; in some cases Assessment of economic loss involves a degree of speculation which does not permit specific calculations.

As such, an Award by way of a buffer was appropriate. His Honour went on to consider Section 126 of the Motor Accidents Compensation Act and stated that Section 126 of the Act does not prevent the Court from awarded buffers in appropriate circumstances. His Honour characterised the insurer’s argument to be that it was impermissible to award a large sum such as $400,000.00 without providing a precise calculation.

Therefore to summarise the main points that emerged from the case we can say the following:

  • A Claims Assessor does not fall into error by failing to summarise or repeat every passage of evidence that is put before him or her in the Award
  • That buffers for future economic loss can be made after valuating each individual circumstances and specifically in the case of higher income earning individuals it is justifiable for there to be a larger than normal buffer

Mrs Cervantes was very satisfied with the result despite the fact that the claimant took considerable time to resolve because of the insurer’s Appeal.

Gerard Malouf & Partners ensured that it used all of its resources to defend Mrs Cervantes in order for her to maintain her excellent Award.

If you have been involved in a motor vehicle accident and you were a higher earning individual then you to could achieve a similar result. For a free no obligation consultation please contact our offices on a toll free number 1800 004 878 and we will arrange a no obligation consultation to advise you of your rights and options.