Serious motor vehicle accident in the Eastern Suburbs complicated by the claimant’s dishonestly

PUBLISHED 06 Jul 2017

SG was involved in a serious motor vehicle accident in May 2011.  She was the driver of the vehicle.  Accompanying her in the front passenger seat was her husband and in the rear was her daughter.

The family was travelling in a 60km per zone of a suburban street when a learner driver inadvertently crossed the median line and collided with their vehicle head on.  The force of the impact caused their car to be pushed into a third car behind them.  SG’s husband injuries were so significant that he required a back disc fusion.

SG’s injuries however, were less physical but more psychological.

The family was trying to conceive a second child.  Unbeknownst to her, at the time of the accident, she was in fact pregnant.  This was discovered when she was taken to hospital and blood samples were taken.  It was fortunate that these tests were taken because it had prevented an x-ray to be taken at that time.

Unfortunately, however days after the incident, she developed some vaginal spotting which then led to her miscarriage.

The miscarriage itself was extremely overwhelming for SG as she developed a clinical psychological injury.

Initially she was assessed by the Motor Accidents Medical Services (MAS) as having an injury equivalent to 17% whole person impairment (WPI).  This placed her injury above the threshold for damages for her injury and pain and suffering.

At this point in time, we provided advice to SG to put to the insurer a reasonable Offer of Compromise so as to resolve her matter as soon as possible so that she can properly return to some normality in her life without the pressures and strains of litigation.  This advice was not accepted and we were given instructions to proceed.

The insurer made further enquiries and identified that SG actually had a history of mental illness following the birth of her first child. The matter was returned to MAS. The reassessment came below the threshold at 7% WPI. A number of reviews were undertaken but without success to advance SG’s claim.

The claim however would have still been valuable as SG prior to the accident had completed TAFE certificates in child care. Her instructions were that she was not able to work at all. The matter was filed for assessment on this basis.

Through documents produced by Department of Child Services (DOCS) at the insurer’s request, it became apparent that SG was not honest in relation to her work capacity. Documents revealed that she was operating a child minding facility at her home, which following a complaint by a mother was attended to by DOCS and the service closed. She then continued to reveal other places of work. These instructions continued right up until the day before the matter was listed for assessment.

Although the matter was ultimately assessed in the order including costs of about $150,000 , had SG been honest about her work capacity/ incapacity her claim would have been worth more. It is because of her failure to disclose, it made it impossible to determine when she was able to work, and for how long per week because there was no evidence other than her statement.

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