Whiplash Injuries Awarded $1.3 Million in Car Accident Claim

Mr Martin, sustained whiplash injuries to his neck and back in a rear end car accident on the Peak Downs Highway, near Claremont in July 2011. He brought a motor accident claim for damages, seeking compensation for his accident injuries.

Rear end collision causes whiplash injuries

The car accident occurred when Mr Martin’s Landrover was hit from behind at speed by a following motor vehicle, shunting the Landrover into the car in front. Mr Martin sustained significant jarring of his body upon impact, suffering whiplash injuries. That Mr Martin had suffered whiplash injuries in the accident was not in dispute. However, the extent of his injuries, and their impact on his pre-injury lifestyle and employment was very much in dispute.

Mr Martin’s case went to trial before Justice McMeekin in the Supreme Court, John Alfred Martin v Andrews & AAI Ltd [2016] QSC 20. The CTP insurer of the car that rear-ended Martin’s vehicle, AAI Ltd (Suncorp Insurance), admitted liability for the accident. The only issue in dispute at trial was how much Mr Martin should receive in injury compensation.

Impact of whiplash injuries on the Plaintiff

 Martin was 40 years of age at the time of his car accident and 44 years of age at time of trial. He’d previously worked in heavy manual employment and was a qualified electrical fitter, mechanic & linesman. He had gained these qualifications whilst working in the mining industry.

Before sustaining his injuries, Martin had a 20 year history of consistent work, apart from a period of 10 months when he upgraded his qualifications to include high voltage work. When he wasn’t working, he worked on the family farm.

Eight months before the accident, Martin had started his own business and had won a lucrative contract providing high voltage work in the mines, worth $2,000 per week. This ended when he sustained his whiplash injuries.

At trial, evidence was given showing Martin to be well respected in his field and a hard worker.

Whiplash injuries prevent return to employment

 Mr Martin complained of neck and back injuries following the motor vehicle accident. He was diagnosed as suffering a disc protrusion of his lumbar spine at the L5/S1 level, with nerve impingement.

Martin attempted to return to his work as a high voltage electrical technician following the accident, but the heavy work and awkward positioning made this impossible with his whiplash injuries.

As Martin couldn’t work following the accident, and he couldn’t afford retraining, he had no source of income. He had to sell his car and family farm, and was in debt to the Australian Taxation Office. At the time of the trial, he was so poor that he was living on Centrelink payments and residing in a tent at no fixed address.

Video Surveillance produced at trial

The CTP Insurer produced surveillance video of Martin pitching his tent, and claimed it proved he was exaggerating his injuries. It was alleged the video showed Martin moving freely, and inconsistent with his complaints & reporting of pain and restriction.

Back injury alleged unrelated to motor vehicle accident

The CTP Insurer also argued that Martin’s back injury wasn’t caused by the accident, due to his delayed reporting of it. It also claimed Martin was capable of returning to his work within 6 months of the accident but he had chosen not to do so. The CTP Insurer also submitted that Martin could have mitigated his loss by purchasing a motor vehicle to assist him in locating employment.

The doctors give evidence as to Martin’s whiplash injuries

The Court heard varying evidence from Neurosurgeons and Orthopaedic Surgeons regarding the extent of Martin’s whiplash injuries. The Plaintiff’s medical expert considered Martin suffered an 8% permanent impairment of the whole person due to his neck and back injuries from the accident. He also considered the Plaintiff was unlikely to return to his previous employment roles with his injuries.

The CTP Insurer’s medical expert assessed Martin’s injuries at a 5% whole person permanent impairment and conceded that the Plaintiff would have difficulties getting into awkward places or carrying heavy items like air conditioners that most domestic electricians required to do.

Both parties produced evidence from Occupational Therapists as to functional loss caused by Martin’s whiplash injuries. Evidence was given for Martin that he could not return to his previous employment, and he was realistically unemployable due to his injuries. The Defendant’s evidence was that the Plaintiff was capable of returning to his previous employment, despite accepting that the Plaintiff had pain with heavy lifting which was required in his work.

Court finds for the Plaintiff, awarding $1.3 million in damages

His Honour Justice McMeekin found as follows:

• The Plaintiff was a hard worker prior to the accident and was likely to have continued in that manner into the future but for the accident.
• The Plaintiff was a credible witness at trial and the surveillance video failed to discredit the Plaintiff’s claims. McMeekin believed that whilst the video did indicate the Plaintiff wasn’t suffering constant pain as claimed, he did suffer pain with certain activity which the Plaintiff avoided for fear of experiencing pain.
• The back injury was accident related and there was no delay in reporting as back pain was noted in the initial medical records following the accident.
• The CTP Insurer’s medical expert’s assessment of impairment and evidence that there was abnormality at the level L5/6 of the lumbar spine, which the Court accepted was from the accident, was the more appropriate on all the medical evidence.
• The Plaintiff’s medical evidence as to the Plaintiff’s work capacity was preferred, with the Court accepting the Plaintiff was not capable of returning to his previous employment.
• The Plaintiff did have a residual earning capacity and with a return to work program, he could return to lighter full time work in the future.
• Martin hadn’t failed to mitigate his loss as claimed by the CTP Insurer. The Court accepted Martin was unable to return to his former work after the accident and had lost all he held dear because of the compromised position in which he was placed by the accident. The Court also held it unreasonable to expect the Plaintiff to spend his limited funds after the accident, on purchasing a motor vehicle.
• The CTP Insurer, although alleging the Plaintiff could work, had failed to provide evidence of what work the Plaintiff could perform.

Assessment of damages – Compensation to be awarded

Judge McMeekin then assessed Martin’s damages as follows:

General Damages – General Damages are damages for pain and suffering and loss of amenities of life (loss of being able to enjoy the things the Plaintiff liked to do prior to the accident). Judge McMeekin assessed the Plaintiff’s back injury at an ISV of 8 under Item 93 of the ISV Scale, but uplifted this to ISV 10 taking into account the cervical spine injury. He awarded $13,350 for general damages.

Future Special Damage – Special damage includes medical expenses and out of pocket expenses relating to the accident injuries. The Plaintiff claimed $2,000 for future pain medication, which the court held was reasonable.

Past Special Damage – (past medical & out of pocket expenses related to Martin’s accident injuries) this was agreed between the parties at $2,723.80.

Economic Loss  –  Economic loss is loss of income resulting from an inability to work or a reduced work capacity because of accident injuries.

In respect to Past Economic Loss, the Court accepted Martin could not return to his pre-accident work due to his injuries. Given the CTP insurer had failed to provide evidence of any work or earnings the Plaintiff was capable of with his injuries, McMeekin based past economic loss on the Plaintiff’s pre-accident earnings, but discounted them for the possibility work may not have been consistently available to him, and for contingencies of life. The Plaintiff had sought an award of $496,000 for past economic loss but the Court awarded $400,000.

Future Economic Loss, the Court accepted that Martin couldn’t return to his pre-accident employment with his injuries, but believed he had capacity for residual employment in lighter work, with retraining & a return to work program. Judge McMeekin calculated future economic loss on a the basis of $1,800 per week to age 60 years, when he believed Martin would most likely have moved out of heavy work, and then reduced this by 25 to 30% for contingencies and for residual earnings in alternate employment.  His Honour awarded $750,000 for future economic loss.

Retraining costs – The Court rejected the claim by the Plaintiff for funding of a Science Degree so that the Plaintiff could eventually teach Science, as an alternate career. His Honour considered that it was unreasonable to expect the CTP Insurer to meet this claim at over $20,000, as there was alternate employment open to the Plaintiff without such retraining.

Past and Future Loss of Superannuation – Although Martin was self-employed at the time of the accident, McMeekin allowed some past superannuation loss, accepting Martin was likely to return to employed work at times in between contracts. This was allowed at $17,000.  Future lost superannuation was on the basis of 10.15% to 2032, being the average rate over the period taking into account likely superannuation increases in the future.

Plaintiff awarded nearly $1.3 million for his whiplash injuries

In total, Martin was awarded damages for his whiplash injuries in the sum of $1,282,572.10.

Whiplash Injuries aren’t minor injuries – they can have devastating affects

This case goes to prove that, despite common belief, whiplash injuries are not always minor injuries. Even minor whiplash injury to the neck and back can end up causing major disruption in a person’s life and particularly in respect to their employment. Mr Martin suffered relatively minor whiplash injuries but they resulted in him losing his family farm, his possessions and his previously lucrative business.

If you’re injured in a car accident and suffer whiplash injury, you should always seek not only medical advice, but legal advice about what your entitlements are.

No Win No Fee Personal Injury Lawyers Gold Coast & Brisbane are Experts in Car Accident Claims

Are you in need of experienced personal injury lawyers ? Have you been involved in a car accident and suffered whiplash or other injury? Then the first step you should take is to contact us. We’ll advise what you need to do to ensure your entitlement to injury compensation is protected and you achieve the best outcome for your motor accident claim.

Give us a call on 1300 388 383, or Livechat with us on our website. You can also submit an Enquiry about your case to us for a FREE consultation or callback, or to obtain a FREE  appraisal of your case. All enquiries are taken by a Senior Personal Injury Lawyer, are FREE of charge and confidential. There are also no strings attached, so there’s no obligation.

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We offer our no win no fee services to all of Queensland, and our offices are situated in Brisbane City and in Surfers Paradise in the heart of the Gold Coast.

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