Insurer fails to prove argument when challenging sum of damages

Date: Jun 13, 2019

Even when a plaintiff receives damages for an incident, procedural matters are not always over. In the event that a defendant challenges the decision and wins an appeal, the case takes a turn, transforming the once defendant into an applicant, and the once plaintiff into a defendant. This was evident in a recent case, where an insurer challenged the decision made by the court in relation to a woman's award of damages in a motor vehicle accident.

Background of the motor vehicle accident

A woman was injured in a motor vehicle accident when driving home from work on February 14, 2012. As she made a right hand turn at a green light, a four-wheel drive travelling on the road to her left failed to stop at the red light and collided with the woman. She was able to get out of the car on her own but developed pain in her neck, shoulders and back the following day.

The woman brought forward a claim for damages which was governed under the Motor Accidents Compensation Act 1999 (NSW).

An assessor awarded damages to the woman in the sum of $422,907.

The insurer admitted liability but disputed the extent of the injuries the woman claimed to have suffered. It stated:

  • The assessor failed to respond to substantial and clearly articulated arguments made by the insurer (the plaintiff).
  • The alleged shoulder injuries claimed by the woman (the defendant) were not related to the motor vehicle accident.

What did the Supreme Court of NSW decide?

The assessor identified that the first issue worth considering was the medical consequences of the motor vehicle accident. He noted that the woman had been assessed and reassessed at the Medical Assessment Service (MAS) on numerous occasions. He stated that it was not necessary for him to refer to each piece of material evidence as they had already been considered in detail at the MAS.

The Supreme Court agreed with this statement, expressing that the task was to engage with the issues raised by the claim for damages rather than refer to each submission and expressly reject it. It felt the assessor completed his job to the best of his ability, and therefore chose to reject the application from the insurer.

When challenging a court decision, it always pays to have the support of legal advisors on hand to help guide you through what can be a complex procedural process. For more information on how Gerard Malouf & Partners can help with your motor vehicle accident claim, contact the team today.

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