Award of damages sent for reassessment following errors in findings

Date: Feb 27, 2019

In court, it’s not uncommon to see a defendant go up against a well-known corporation, and vice versa in a plaintiff scenario. However, success when facing well-known entities is not always an easy feat – even if you’re the one originally submitting charges.

This was evident in a recent motor vehicle accident case which saw an injured driver attempt to prove his entitlement to the original damages he was awarded by a first claims assessor. He was up against one of the biggest insurance companies in Australia – what did the court decide?

Background of the motor vehicle accident

On 17 April 2012 the defendant was injured in a motor vehicle accident when his car was struck from behind on the Cumberland Highway at Canley Vale. He suffered soft tissue injuries to his spine, right shoulder and both knees, as well as a degree of psychological injury. The defendant lodged a claim for compensation against the Compulsory Third Party (CTP) insurer of the vehicle at fault, which they wholly accepted.

On 23 May 2017, the defendant’s claim was judged by an appointed Claims Assessor at a general assessment conference. Both parties agreed that the defendant had no entitlement to non-economic loss. It was, however, accepted that the driver had suffered impairment to his past earning capacity as a result of the accident and therefore would be entitled to an award for past economic loss. On 8 June 2017, the Claims Assessor awarded the defendant damages at a total of $767,359.44.

The insurer challenged the findings in relation to past and future economic loss calculations only.

What did the court decide in the hearing?

The insurer raised concerns about the defendant’s injuries and stated they were not so significant to prevent him from returning to his previous work hours and duties. A doctor backed this claim, concluding that the defendant didn’t suffer a present or future earning capacity impairment.

Furthermore, they found the Claims Assessor had erred in failing to provide adequate reasons to reveal ‘the path of reasoning’ which led him to his original calculations for damages. Therefore, he failed to perform his obligation as an accredited person in his position.

The court noted that in cases where awards of damages are so substantial, a transparent explanation of how conclusions have been reached should always be included. The Claims Assessor simply adopted the figures put forward by the defendant without assessing the whole situation which was a grave error on his part.

They concluded that the plaintiff had made a good claim for reassessment so awards of damages are likely to change.

If you’ve been injured as a result of another’s negligent driving and want to assess your options, get in touch with the motor vehicle accident lawyers at Gerard Malouf & Partners today.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.