Category Archives for Car Accidents

Do You Know Which Act To Lodge Your Claim Under?

Taking our rubbish bins out to the kerb is a mundane job we’ve all had to do many times. You certainly wouldn’t expect to be injured while doing this.

Sadly, when Joshua took his bin to the kerb one day, a garbage truck mechanical arm grabbed him instead of his bin, causing a severe injury.

Joshua wanted to bring a claim for compensation. He decided to bring a claim under a scheme that deals with injuries caused by motor vehicles.

Think this sounds like the right scheme? Think again…

The Facts

It was a Tuesday morning – ‘bin day’ for Joshua’s street. Joshua had wheeled his recycling bin to the edge of the footpath outside his home ready for collection. Joshua saw the garbage truck travelling up the street towards him. The truck would stop next to a bin, and the driver would maneuver the truck's mechanical arm so that it picked up the bin, emptied it into the truck, and put the bin down.

Joshua was still standing next to his wheelie bin when the truck approached him. The truck stopped next to Joshua’s bin, and the driver extended the mechanical arm to pick up the bin.

The mechanical arm curled around the bin but captured Joshua's leg while doing so. The mechanical arm crushed Joshua’s leg against the bin with its firm grip and lifted him off the ground.

Fortunately, the truck driver heard a sound and saw that the mechanical arm trapped Joshua. Unfortunately, Joshua had already suffered a severe injury.

The Claim

Joshua brought a claim for compensation for his injuries.

He brought his claim under the Motor Accident Insurance Act 1994 (Qld), which applies to the following scenario:[1]

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    Personal injury has been suffered; AND
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    The personal injury was caused by, through or in connection with a motor vehicle; AND
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    The personal injury was a result of:
  • The driving of the motor vehicle; OR
  • A collision, or action taken to avoid a collision, with the motor vehicle.

Did the Act apply?

To determine whether the Act applied to Joshua, the Court had to decide whether the components of the above scenario had been met.[2]

Personal injury suffered

Joshua had clearly suffered personal injury (his crushed leg).

Caused by a motor vehicle

Joshua’s injuries were clearly caused by, through or in connection with a motor vehicle (the truck). There was no dispute about that.

As a result of driving of the motor vehicle

The Court decided that:

gavel

Judge 

“There is a clear distinction between operating the [mechanical arm] and…driving the truck… The driving of the vehicle had ceased.”           

The Court decided that using the mechanical arm on the truck was not the same thing as driving the truck.

Therefore, this element was not met.

However, Joshua still had a chance if the next element was met…

As a result of a collision with the motor vehicle

The Court decided that:

gavel

Judge 

“In natural and ordinary language, the [incident] would not…be described as a “collision”."

The Court found that Joshua was “picked up” or “collected” by the mechanical arm, which was not the same thing as a collision with the truck.

Therefore, this element was not met.

Joshua's claim was dismissed.

Joshua's situation did not fit the scenario required by the Act to apply. He only met two components of the scenario:

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    Personal injury has been suffered; 
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    The personal injury was caused by, through or in connection with a motor vehicle; 
  • As a result of driving the motor vehicle or a collision with the motor vehicle.

Therefore, the Act did not apply, and Joshua could not continue his claim.

Don't be like Joshua, know what Act to claim under.

Bringing a personal injury claim for compensation can be tricky, as it is not always easy to know where to start.

Things aren’t always as simple as they seem – an accident involving a motor vehicle won’t always fall under the Motor Accident Insurance Act 1994 (Qld) (even though it has “motor accident” in its very name!).

This decision came down to specific definitions. The Court carefully thought about how words such as “driving” and “collision” should be interpreted, and ended up using common sense to figure out the meaning of the words.

Sadly, Joshua’s situation did not fall under the Court’s interpretation of the Act’s application. Therefore his claim was dismissed, and he missed out on compensation. 

Joshua could potentially have brought a claim for compensation for his injuries under the Personal Injuries Proceedings Act 2002 (Qld).

This Act applies to personal injuries that aren’t covered by motor accident legislation or workers’ compensation legislation.

Similar to the Motor Accident Insurance Act 1994 (Qld), the Personal Injuries Proceedings Act 2002 (Qld) has strict time limits for bringing a claim – so it is essential to determine the correct legislation as soon as possible to make sure a claim is brought in time.

If in doubt, ask a legal expert for some advice.


[1] Motor Accident Insurance Act 1994 (Qld) s 5.

[2] Suncorp Metway Insurance Limited v Sichter and ors [2010] QSC 164.

Exaggerating won’t get you far in Court

ASHLEY TULLEY

CHIEF COMMERCIAL OFFICER

Being in a motor vehicle accident can change a person’s entire life.


Accident-related injuries can lead to expensive treatment, painful recovery, and restricted ability to go about day-to-day life.


Sometimes, though, an injury can seem much worse to the injured person than it is. People can exaggerate their situation, sometimes without meaning to.

Find out why a judge slashed Karen’s* compensation claim because of her tendency to exaggerate.

Let me introduce you to Karen

Karen was a 49-year-old single woman living on the Sunshine Coast, working full-time as a bus driver.

She stayed fit and led a very social life.

She planned to keep driving buses until she was at least 70 years old – even past 70 if she could.

Unfortunately, Karen’s life was turned upside down when she was involved in a bus vs car accident.

What happened? 

The accident

One Tuesday morning, Karen was driving a bus just like any other workday.

 She was following the set route when she approached a roundabout.

As she came closer, a Holden Commodore that was driving through the roundabout suddenly lost control.

The Commodore collided with Karen's bus, ricocheted off and came to a stop on the median strip.

Karen's Injuries

Karen was shaken. She was taken back to the bus depot when she started to feel pain in her neck.

Later that night, her lower back started hurting.

By the next day, she also had pain in her shoulders and arms, and her back was feeling restricted.

Over two years later, Karen still had chronic pain and was being treated for symptoms of depression and anxiety.

Karen's story is not uncommon. 


Injuries often take months, even years to present themselves. An definitely closer to the latter to finally resolve themselves. 


The trouble with that delay in time is two-fold. 

  • 1
    Either the injured person is out of time to make a claim. Remember, in Queensland a person only has three years to lodge their claim or notice of an intention to bring a claim. 
  • 2
    Or as is about to occur in this case... this lengthy delay in a claim and a change in circumstance caused conflicting evidence because time erodes our memories. 

Karen decided to make a claim for compensation to cover the cost of her injuries.

Karen brought a personal injuries claim for compensation against the CTP (compulsory third party) insurer of the Commodore driver.

Karen’s claim was for nearly $1 million.

But the driver disagreed with that amount of compensation...

The CTP insurer admitted that the Commodore driver was at fault for the accident.

However, it didn’t agree with the amount of compensation Karen was claiming.

Why didn't the insurer agree with the amount Karen was claiming?

The insurer argued that Karen had a history of exaggerating.

They claimed that since Karen tended to overstate things, she was probably exaggerating the loss she had suffered.

The Evidence: What had Karen exaggerated?

The Judge thought about what the insurer was saying, and had a good look at Karen’s history of exaggerating.

The accident

Karen’s version of events: Karen said the collision was “high impact” and that she was “holding the steering wheel trying to control the bus”.

The evidence: CCTV footage from the bus showed that Karen moved only slightly in her seat at the moment of impact. She then steered the bus towards the kerb and stopped the bus.


Karen’s version of events: Karen said that the Commodore hit her bus twice – once at the front of the bus, and then again at the back of the bus.

The evidence: Photographs of the bus showed there was only one dent in the bus, suggesting just one impact.


Karen’s version of events: Karen said that the collision “pushed the bus to the side” by about half a metre.

The evidence: CCTV footage from the bus shows the collision caused only a slight shudder.

Injuries before the accident

Karen’s version of events: Karen said she had no ongoing trouble before the crash from previous injuries.

The evidence: Karen’s ex-husband (who was still living with Karen before and after the accident) said that Karen had a right shoulder injury that stopped her from doing some things, such as hanging clothes on the clothesline, before the crash.

Injuries caused by the accident

Karen’s version of events: Karen said her injuries limited her ability to do household chores, and that she needed a lot of assistance. She said that she got a lot of help from her ex-husband and a border that was living with them.

The evidence: Karen’s ex-husband and the border told the Court that they did not give Karen as much help as she said they did.


Karen’s version of events: Karen said would never be able to work again because of her injuries.

The evidence: A medical expert found that Karen was still fit to work. Another expert said that Karen tended to “magnify her condition”.

The Decision

The Judge found that Karen did tend to exaggerate things.

The Judge decided that Karen was likely to be exaggerating the impact her injuries were having on her life.

Because of this, the Judge did not award as much compensation as Karen was claiming.

Here’s a look at the damages Karen claimed and the amounts she was actually awarded:

Karen was awarded $539,764 in compensation – almost half of what she had requested.

Exaggerating injuries doesn’t bode well in personal injury claims.

Personal injury claims are designed to compensate injured persons for the loss they have actually suffered.


Karen’s case demonstrates that you cannot claim more than you’ve lost.


There is no way to cheat the system. In fact, trying to cheat the system might just come back to bite you.

Karen wasn’t necessarily trying to cheat the system. It is understandable that she felt the accident was more intense than it was, and that she felt more restricted by her injuries.

But the Judge had to assess her loss objectively, relying on the evidence available.

Consider this: Dropping a coffee just after you’ve bought it might feel like the end of the world. But a passer-by would only see a $5 loss.

In the same way, Karen felt her life was significantly affected. But the Judge assessed Karen’s loss for what it really was.

Evidence, Evidence, Evidence

Since you can only claim your actual loss, it is essential to have evidence to prove that loss accurately.

The Courts will not accept your claim based solely on your word. Equally so, they look favourably on claimant that are well prepared with extensive evidence.

Evidence is king in personal injury claims. Gather evidence to support your claim including:

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    Video evidence
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    Photo evidence
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    Medical experts (physios, occupational therapists, doctors, specialists)
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    Personal witnesses
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    Journals recounting the accident and your personal loss

The trouble for Karen was that she had no evidence to support her claims. Courts operate on the plaintiff (Karen) proving her claim on 'the balance of probabilites'.

Meaning that she needed to show that her claim was more likely than not accurate.

Had her witness testimonies and medical experts supported her claim, she likely would have been facing a different outcome. 

Unfortunately, they didn't and she lost half her claim. 

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Rear-end collision – Why you might not be at-fault

Ashley Tulley

Chief Commercial Officer, MCW Legal

Tailgaters drive me mad.  Tailgaters are mad.  If they drive you mad too you will be pleased to know that they can be held liable for running into the back of you.  And that means you might not be at fault for a rear-end collision.

There is a well-known presumption that rear-end car accidents are typically the fault of the driver who hit the car in front.

But there are certain situations where that is not always the case.

Read on to discover why, and under what circumstances, a driver who rear-ends another car may not always be at fault.

Tailgating is still illegal...

The driver of the car that rear-ends a leading vehicle will almost always be considered at least partially negligent. This is often loosely referred to as presumed liability.

Tailgating is illegal and an example where a rear driver would be found at-fault for the collision. 

Every driver has a responsibility to follow the car in front at a safe distance. Tailgating is illegal after all.

This is because drivers sometimes have to suddenly, and unexpectedly, slow down or come to stop.

You are expected to have enough distance between you and the car in front of you to prevent a collision if such an unanticipated stop becomes necessary.

However, there are certain situations where you could have been the perfect driver and would have still found yourself involved in a rear-end collision.

Not a dangerous driver and involved in a rear-end collision

If you rear-ended another driver – and you weren’t driving dangerously – you may not be at fault.

In some situations, the lead vehicle is actually responsible for the accident.

Examples of negligent driving for lead drivers include:

  • Slamming on brakes suddenly and unexpectedly (whether to harass or annoy other drivers)
  • Aggressive driving
  • Failure to indicate a turn or lane change
  • Driving too slowly
  • Dangerous driving (such as driving carelessly in bad weather conditions)
  • Dangerously merging in front of you, then braking suddenly.
  • Failure to pull over and engage hazard lights when broken down or after getting a flat tyre.

In each of these examples, the driver of the car that gets rear-ended would likely be considered negligent.


If you were involved in an accident that was:

  • caused by a leading driver; and
  • you suffered injuries as a result of the accident...

...you may also be entitled to compensation for your injuries, property damage and other losses. 

But all of this is irrelevant if you can't prove what happened

We can all agree that in rear-end collision the tailing driver is typically at fault.

Hence, it’s no surprise that insurers and police assume the same thing.

The insurer will pore over every minute detail of your rear-end collision to see if the accident was avoidable, making you responsible for the accident.

It therefore becomes increasingly important to provide definitive evidence that this was not the case.

How to prove it

What is negligence?

Click to reveal it's definition

Negligence

To prove that the other driver was negligent, you must first prove that a duty of care existed.

Determining this is pretty simple, since all drivers owe one another a duty to exercise care when operating a car.

Second, you must prove the other driver breached their duty.

Drivers can breach their duty of reasonable care in a number of ways. For example, by:

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    failing to pay attention to the road and look out for hazards
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    failing to drive at a reasonable speed (based not just on posted speed limits but also on road conditions)
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    failing to maintain control of the vehicle
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    failing to indicate, and
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    failing to follow at a safe distance.

These are the same scenarios discussed earlier. 

Third, you must prove the other driver’s breach of duty was the cause of the accident.

Here is where a dash cam steps in...

One such way you can prove the accident was not your fault, and the lead driver breached their duty of care, is through video footage.

Video footage is a great way to prove that you weren't at fault in a rear-end collision. 

Videos, like photos, are difficult to contradict.

They are an unbiased and impartial piece of evidence. An insurer will find it very difficult to deny the evidence in a video.

Likewise, dash cam footage avoids the he-said, she-said spiral between people involved in an accident. It would be pretty hard for someone to deny they failed to indicate or their brake lights were broken when it's shown on camera.

What to do when an insurer says you are ‘faking’ your injuries.

We see low ball tactics from insurer’s every day. One such tactic is suggesting that plaintiffs are exaggerating their injuries and that they are fit to return to their old job and do the same duties.

“…there’s absolutely nothing wrong with them.”

In this case (Foster v Carter & Anor [2017]), we find out how Karen overcame these tactics and netted herself nearly $200,000 more in compensation.

Karen’s Story.

Let me introduce you to Karen Foster.

Karen* was a 50-year-old bus driver.

She had just recently broken up with her long-term partner. She was still living in their shared home in Battery Hill, QLD.

Karen was saving money to buy her ow​​​​n place.

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Karen's Dream

I have an excellent relationship with my ex, but I am keen to build a life of my own now we aren't together.
To do that I just need to take on a few more shifts at work. 

It was just an average day at work for Karen. She was on a bus route she knew quite well, picking up grizzly city commuters on their way into work  

…that was until Jade Carter lost control of her Holden Commodore.

Karen was exiting a roundabout when Jade drove straight through, careening into the back of Karen’s bus before ricocheting onto the median strip.

Karen held onto the steering wheel trying to control the lurching bus. She was shunted at least half a metre sideways.

The force was described as a ‘slight shudder', but its impacts were much further reaching than that.

Karen had suffered whiplash injuries to her neck and lower back.

Because of the injuries she sustained in the accident, Karen was left unable to:

  • Walk dows stairs normally;
  • Complete simple household duties like hanging clothes on the line;
  • Cook or clean for herself;
  • Feed her three dogs;
  • Drive herself to her medical appointments.
  • Work in her previous employment because it aggravated her injuries.

Karen was overwhelmed.

Her hopes of moving out were dashed. Her persistent neck and back pain meant that both her work and everyday aspects of home maintenance were now beyond her. At 50 years of age, Karen had been forced into retirement. 

She was strapped for cash and had to open the second room in her home to a boarder to help bring some money in.

 She felt like her home had become a prison cell.

People shouldn’t be left with a huge financial burden because someone couldn’t control their car.

Thankfully Karen was able to bring a compensation claim under the Civil Liability Act.

The Civil Liability Act can give people their financial freedom back by providing an avenue for monetary support for their lost income and covering any medical expenses or treatments.

Introducing the Civil Liability Act

Karen brought against Jade and her insurer, RACQ Insurance Limited for pain & suffering, lost income and cost of ongoing care.

The insurer’s tactic was to downplay the accident and suggest that Karen was exaggerating her injuries and their effects.

Adding to that, they sharply disagreed on the amount that should be awarded for Karen's future economic loss.

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For Karen to succeed she had to prove the far-reaching extent of her injuries. 

Karen used testimonies from her ex-partner and the boarder that moved in after Karen’s accident to confirm the far-reaching effect her injury had on her life.

Her ex-partner described Karen as ‘fit as a Mallee bull" with a “full-on” social and work life.  
He also told the court that Karen had “gone downhill” drastically since the accident.

He told the court how he now has to help Karen domestically including doing the dishes, grocery shopping, vacuuming, washing and mowing.

Karen also relied on her boarder to help drive her to medical appointments and complete some household chores too.  

She also needed to prove that she was unemployable after the accident. 

Karen alleged that her neck, spinal and psychological injuries meant she wasn’t able to work anymore.

The Insurer's Argument.

While Jade and her insurer admitted liability for the accident, they strongly disagreed that Karen should be awarded any more than $75 thousand for the income she’d lost being unable to work.

Karen's Argument.

Karen, on the other hand, believed that her future economic loss should be calculated by what she would have earned as a bus driver until her retirement – around the age of 70.

To confirm her claims, Karen asked her medical practitioners to testify on her behalf. These experts include her neurosurgeon, physiotherapist and occupational therapist. All three medical experts agreed that Karen's employability was impaired to the extent that she could no longer work as a bus driver.

However, some believed that she might have been able to have a part-time, lightweight, semi-sedentary occupation such as a receptionist.

What did the judge think?

The judge’s decision lay somewhere between the insurer’s story and Karen’s.

For the extent of her injuries, the judge noted that she had suffered significant injuries as a result of the accident, regardless of how hard or soft the collision was. 

For her employability, the judge also agreed that Karen’s ability to work was impaired.

“It is apparent from the plaintiff’s evidence that she has adopted a routine for managing her pain that is currently not conducive to paid employment, but … she has some prospect of obtaining light sedentary work.”

gavel

Judge 

“It is apparent from the plaintiff’s evidence that she has adopted a routine for managing her pain that is currently not conducive to paid employment, but … she has some prospect of obtaining light sedentary work.”

The judge awarded Karen $270,000 for her future income loss.

In total, Karen was award $539,765 for damages including her pain and suffering, medical expenses, past and future economic loss and care costs.

Karen's case proved that you should fight for your worth. 

By far the most significant component of the claim, making up more than 50% of the total damages, was the amount the court awarded for Karen’s inability to continue working as a bus driver for the rest of her life.

Had Karen settled for the insurer’s offer she would have missed out on almost $200,000 in compensation.

It also highlights the weight that personal reference can hold in court.

It was Karen’s evidence, corroborated by that of her ex-partner and her boarder, that substantiated her claim. Without the compelling and consistent story being told by these three witnesses, the outcome might have been very different.

If a person is injured in an accident and hasn’t obtained statements from their friends or family members to corroborate their evidence about the real-life impact of the crash, it could dramatically impact their entitlement to compensation.

Written by Ashley Tulley | Chief Commercial Officer

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Should compensation be reduced for not wearing a seatbelt?

It's a requirement of law, but does wearing a seatbelt impact the amount of compensation given by the Courts?

As we discover in Nyholt v Nominal Defendant [2008] QSC 273, the answer isn’t that straightforward.

Steven's Story.

Let me introduce you to Steven Nyholt.

Steven was a young guy who worked as a newspaper delivery driver.

Each work evening, Steven would drive from Townsville to Cairns, delivering newspapers along the way.

Steven would leave Townsville at 11 pm, make his deliveries, and return by about mid-morning.

He had worked the job for about a year, knew the route, and even had a ritual of stopping at Tully for a cup of tea before continuing.

One evening, Steven set out on his route like any ordinary day. But what happened just a few hours later was anything but ordinary.

What went wrong? 

Steven delivered newspapers to the first few locations before stopping in Gordonvale. He could always throw the papers out the window for the first few deliveries, but at Gordonvale he had to get out of the car to walk a bundle of newspapers up to a newsagency.

When he hopped back into the van, he took off without putting on his seatbelt.

As he drove away, rain began to fall. By the time he reached the highway, it was raining heavily.

Steven was approaching an S-bend in the road when he saw a car coming from the other direction.

He noticed the car's high-beam headlights were turned on, but because of the turns in the road, they weren't aimed at Steven.

The situation changed as the road straightened out. Rather than shining away, the car's headlights now shone directly into Steven's eyes.

“It wasn’t until I went around the corner, that’s when the high-beam dazzled me.”

- Steven 

Steven was devastated.

His whole life had changed.

He lost his job. He could no longer complete simple household or personal duties without assistance.

He even had to move house as his wheelchair couldn’t fit through doorways.

Money became tight. His medical and care bills were astronomical. There was no way Steven was going to be able to make ends meet on his own.

No one should be left seriously injured because of another person’s error.

But what happens if you don't know who the driver is?  How can you get the compensation you deserve?

Thankfully the government has recognised this gap and has provided an avenue for people like Steven to claim compensation under the Nominal Defendant.

Much like a claim under the CTP insurance scheme, a claim under the Nominal Defendant can give Steven financial support to cover the cost of his lost income and medical bills.

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    Applies the law of negligence to your unique situation and informs you of your legal rights

Introducing the Nominal Defendant.

What is the Nominal Defendant?

Click to reveal it's definition

Nominal Defendant

Steven brought proceedings against the Nominal Defendant for compensation for his injuries.

Steven claimed that his injuries were caused by the unidentified driver's negligent use of high-beam headlights. He argued that the high-beams impaired his vision, causing him to lose control of the van and suffer extensive injuries.

For Steven's case to succeed he had to prove that the other driver was negligent and he did not contribute to his injuries.

Was the other driver negligent?

Even without witnesses to support it, the Court accepted Steven’s version of events. The straightforward way he gave his evidence left a positive impression on the judge, who believed he was not elaborating his story.

The Court said:

  • The unidentified car’s driver ought to have realised the high-beam lights would have impaired a passing driver’s vision (especially in the rainy weather);
  • By using the high-beam lights, that driver was guilty of negligence;
  • Therefore, the driver was responsible for Steven’s injuries.

So, the Court found that the other driver was negligent.

​​​​But was Steven contributorily negligent?

...by not wearing a seatbelt? No. 

Specialists were called to examine whether Steven ended up with worse injuries by not wearing a seatbelt. While the opinions varied, one specialist said wearing a seatbelt would not have lessened his injuries (in fact, the damage may have been worse if he became trapped in the van).

Ultimately, the Court was not satisfied that Steven would have sustained significantly lesser injuries had he been wearing his seatbelt. Therefore Steven was not guilty of contributory negligence for not wearing a seatbelt.

...by not acting reasonably? Yes. 

The Court said that had Steven slowed down earlier than he did, he would have been better able to control the van.

By not slowing down when he first saw the high-beam lights in the distance, and by not “flicking his lights” at the other driver to tell them their high-beams were on; Steven was guilty of contributory negligence.

The court met Steven halfway. 

The Court decided that both drivers shared the blame equally. The unidentified driver should not have had his high-beams on, and Steven should have acted more cautiously.

The Court awarded Steven $2,375,000 (50% of his assessed damages).

Steven's case highlights that the Court assesses every case on it's unique circumstances.

The assessment of negligence was unusual in this case. According to the case…

1. Not wearing a seatbelt MIGHT NOT be negligent (in particular circumstances)

Steven's case had very unusual circumstances, in that not using a seatbelt might not have increased his injuries. Statistically, drivers and passengers involved in collisions are eight times more likely to be killed if they do not wear a seatbelt.

Here, the Court said failing to wear a seatbelt was not contributorily negligent, but this is not usually the case. A person bringing a claim for compensation due to a car crash should be aware that not wearing a seatbelt may reduce their compensation (and increases their risk of injury).

2. Using high-beam headlights and failing to slow down MIGHT be negligent. 

Steven’s case also highlighted the importance of taking proper precautions on the road, including:

  • only using high-beam headlights where it is safe to do so;
  • slowing down when in, or approaching, dangerous situations.

Not taking into consideration your safety (and the safety of others) while driving can contribute to your injuries or the injuries of other people.

The courts will think carefully about who caused the accident.

Failing to slow down when presented with a dangerous situation will likely cost you compensation. In Gary's case, it was $2.5 million.

Written by Verity Smith | Law Graduate

Should your compensation be reduced if you get in a car with a drunk, even if you did not know?

Charles' Story. 

Let me introduce you to Charles Pallier. 

Charles was a 16-year-old boy, living in regional Tamworth, NSW.

He was your typical Australian boy. He loved rugby, hanging out with his mates and was looking forward to finishing school.

Charles was hoping to join the Armed Forces.

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Charles' Dream

I am hoping I might be able to join the Army or Air Force once I get my Senior Certificate.
I think I would like to work as a mechanic for them. I spoke to Dad about it recently, and he says I would have a good shot.

It was October 4, and Charles decided to head to a party at his friend, Suzie’s, older brother’s house. Trent Solomons was hosting a celebration for NRL grand final.

Everyone was drinking and revelling in his or her favourite team’s win.

Later that evening and after they had been drinking for most of the night, one of the older boys became aggressive. He was yelling at everyone who was there to go home.

Trent offered Charles and three of his friends a lift home.

Trent was a P-plater and knew he was over the zero tolerance limit but believed he was under 0.05 blood alcohol limit.

One of Charles’ friends asked Trent if he was all right to drive to which he responded he was fine. 

The five of them got into Trent’s car and made the 8km trip back into town, taking the back roads to avoid the police.

Trent thought he would be funny and try to scare Charles and his mates by deliberately driving off the road and hit a guidepost marker.

The car collided with a culvert (drain) on the side of the road. The vehicle flipped coming to rest on its roof.

Sadly, one of the passengers passed away, and Charles had significant injuries including a brain injury.

Want to know how to win your claim with your own medical records? 

Get our FREE checklist and receive:

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    14 Assessment Checklists & 160 Injury Point Evaluations, Broken Down Into 
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    16 Pages Of Clear Simple Steps To Totally Automate Your Claim
  • check
    Eliminate Hassle And Make The Painful Process Painless By Streamlining Your Doctor's Testimony
  • check
    Gain Complete Control Of Your Injuries Claim, With In-Depth Examinations To Maximise Your Compensation Included In Our Straightforward Checklists

Charles was devastated.

 Charles' life irrevocably changed.        

His brain injury left him almost entirely incapacitated.

His life plan to join the army was now out of reach because of his injuries.

No one should be left incapacitated because a drunk decided to get behind the wheel.

The government recognises this and has provided an avenue for people like Charles to claim compensation under the Motor Accidents Compensation Act 1999 (NSW).

Charles can make a claim for compensation under the CTP insurance scheme. This settlement provides people with financial support.  In cases like Charles', where someone is left almost entirely incapacitated, this support can be vital to ensure the injured party can receive the care and support they need.

Introducing the Motor Accidents Compensation Act 1999.

What is the Motor Accidents Compensation Act?

Click to reveal it's definition

Motor Vehicle Compensation Act

Charles brought a claim against Trent, the driver, for compensation for his injuries.

Before the court hearing, parties are required to have a meeting to attempt to come to an agreement of negligence (who is at fault) and damages (how much compensation they deserve). This session is known as a compulsory conference.

In Charles’ case, the parties agreed to the damages at a total sum of $1,268,520 plus $369,542 for the costs of funds management. The parties also agreed that Trent was negligent, but there was a dispute as to the extent of that negligence and whether Charles contributed to his injuries.

For Charles to succeed he needed to prove that he could not have known Trent was a reckless driver.

Charles’ argument relied on establishing he did not know that Trent was too drunk to drive and that by Trent driving off the road was not a foreseeable event.

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Did Charles know that Trent was drunk? 

Expert evidence presented at Court determined that Trent’s alcohol level at the time of the accident was approximately 0.07 percent.

There was a difference of opinion as to whether Charles would have known that Trent was too drunk to drive.

Charles argued that before getting into the car, he had not seen Trent drinking. He had never met Trent previously so couldn’t be sure whether Trent’s behaviour was because he was drunk or if he acted like that when sober too. Charles engaged medical experts who testified that Trent’s blood alcohol level before the accident would not have been high enough to be showing clear signs of intoxication such as slurred speech and imbalance.

Based on these facts, Charles believed there was no way he could have known that Trent was intoxicated.

Trent argued that Charles knew or should have known that he was too drunk to drive because:

  • 1
    Trent took the back roads to avoid the police; and
  • 2
    other passengers kept asking Trent if he was okay to drive, which showed at least one person in the car was worried about his sobriety.

The trial judge agreed with Trent in this case. Charles knew or should have known that Trent’s driving was impaired based on:

  • 1
    the fact he was a P-Plater and therefore had to have a blood alcohol level of 0%; and
  • 2
    everyone at the party was drinking.

However, the judge noted that while Charles should have known Trent had been drinking and his driving would likely be impaired, there was simply no way he could have known the extent of the risk predicted.

It would have been like staring at an iceberg, thinking that Trent’s drinking presented only a small risk when the true risk was kept deep below the surface.

Should Charles have foreseen that Trent was going to drive off the road?

Trent argued that the risk of them having an accident increased because he was drunk.

Hence, because Charles should have known that Trent was drunk, he also should have foreseen that an accident was likely.  As a result, Charles contributed to his injuries.

Charles, on the other hand, believed that not only could he not have known Trent was drunk but also he could not have known that Trent would deliberately drive off the road as a prank.

Because the decision to scare the boys was a deliberate action by Trent, Charles could not have foreseen such an accident occurring.

The trial judge agreed with Charles, stating:

gavel

“While it was foreseeable that [Trent] may drive carelessly and with less than proper attention or that he may have made a mistake as a result of his intoxication, the action in deliberately driving off the roadway was entirely unpredictable.”

The trial judge awarded in Charles’ favour.

The judge agreed that Trent was negligent in his behaviour. He also noted that while Charles should have known that Trent had been drinking, he could not have foreseen such a horrific accident happening.

Charles received his full compensation of $1.6 million.

However, Charles hit a snag. Trent appealed the claim. 

Trent believed that Charles should be held partly responsible for his actions because he accepted a lift knowing Trent was drunk.

The appellant judge agreed.

Charles’ conduct in travelling in the vehicle exposed him to the risk represented by a driver whose driving capacity, and decision-making was impaired due to alcohol.

From Charles’ perspective, Trent deliberately driving off the road was not an obvious consequence, particularly given Trent assured them he was all right to drive.

Nevertheless, the appellant judge believed that Charles’ actions should reduce his compensation by 10%. Charles' new compensation amount was $1, 474, 256.

Charles' case tells us the importance of look out for your safety.

It is clear that Trent’s actions were negligent. He was drunk, trying to be funny and deliberately drove his car off the road.

Charles’ mistake in getting in a car with a drunk person left him with significant injuries, changed his life forever and ultimately cost him $200,000 in compensation.

It provides a timely reminder always to be aware of your safety and to think about the consequences of your actions.

Written by David Davies | Special Counsel

How one man dodged an insurer’s low ball tactics and doubled his compensation

Introduction 

Facing insurance companies can be a tough and confronting thing. Sadly, we often hear stories of injured people accepting a low ball offer from an insurer to get the ordeal over with.

As we discover in this case (Gary John McLean v Nominal Defendant [2012] QDC73), it pays to not settle early. After all, you wouldn't sell your house for less than it's worth, why would you sell yourself short too?

Gary's Story 

Let me introduce you to Gary McLean. 

Gary* was your typical Aussie bloke.

He was 38 years old and worked casually as an all-around handyman, taking on jobs such as a labourer and tree-lopper.

He had 4 beautiful children who he loved dearly and tried to see as much as possible. He was living with his sister in Deception Bay at the time and was saving some money to get a place for himself.

Gary also loved to hang out with his mates. He was often found at the local pub having a few knock-off beers.

Gary was looking forward to getting his own place. 

cloud

Gary's Dream

I am saving up as much as I can and working lots so I can afford to get my own place. 
Hopefully, my kids can come round and stay once I am in my own house.

It was a Sunday afternoon on 8 March 2009 when Gary and his friend decided to meet at their local pub to have a couple of drinks.

Gary then decided to walk home to his sister’s place. On the way home, he crossed the road on Maine Terrace. 

Gary looked before crossing and did not see any cars coming. 

As he started to walk , a car came quickly around the corner from Bay Avenue.

He tried to jump back but the car collided with him. 

The car ran over both of Gary’s feet. He was in incredible pain and when he went to stand up his feet collapsed under him.

The car that hit him drove off leaving Gary behind.

An elderly couple found Gary and drove him to his sister’s place, where he ended up lying on the front lawn. The ambulance was called and arrived at the house at about 7:00 pm.

Gary had fractured both of his feet. He was left with permanent impairment from the accident including an abnormal gait, constant pain and difficulty standing for long periods of time.

Sleeping became an issue and Gary developed post-traumatic stress disorder and depression.

He could not work for periods longer than 2 hours and was unable to complete simple household duties.

Gary was mad.

His employment opportunities were next to nothing and now his dream of owning his own home was out the window.

There was no way he could afford his mounting medical bills and the necessity to have assistance around the home.

No one should be left with permanent injuries and financial stress after a hit & run accident.

Gary raised a claim against the Nominal Defendant to cover his lost earning capacity, medical bills and need for domestic care.

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Introducing the Nominal Defendant.

What is the Nominal Defendant?

Click to reveal it's definition

Nominal Defendant

The Nominal Defendant argued that Gary was an unreliable witness and his intoxication contributed to his injuries. 

Gary's credibility

The Nominal Defendant argued that Gary’s evidence was unreliable so his account of the accident should not be accepted.  

Gary had given various different accounts of what had happened to different people. The form completed by one of the paramedics said Gary stated he was hit by a car travelling at approximately 70-80 kph and was thrown over the vehicle.  

The hospital notes recorded Gary complaining about being hit by a car which did not stop. He said the car was doing about 80 kph and he was knocked over and landed on the pavement. There were differences between the version written by the attending police officer and what was recorded by the police officer as to what Gary actually said.

The Judge concluded that he did not think there were any real inconsistencies between Gary’s evidence and the different accounts Gary had given to different people.

The Judge said that it is appropriate to be cautious about Gary’s evidence in a matter of this nature, but the one piece of evidence which does support his story is the evidence of his injuries.  He went on the say:

gavel

Judge McGill

"… he undoubtedly suffered some injury, fractures to each of the feet, worse in the case of the right foot, and in circumstances where he was wearing something on his feet, some force would necessarily have been involved."

Contributory negligence

The Judge then looked to the issue of contributory negligence.

What is contributory negligence?

Click to reveal it's definition

Contributory negligence

The Nominal Defendant argued that Gary’s damages should be reduced because he was drunk at the time of the accident.

Gary was able to argue that his intoxication did not contribute to the accident.  Further, it did not change the fact that the driver of the unidentified vehicle failed to exercise reasonable care.

The Judge did not accept that Gary’s intoxication contributed to the accident.  

He said:

gavel

Judge McGill

"​… the lack of a proper lookout on the part of the driver of the unidentified vehicle obviously had nothing to do with the intoxication or otherwise of the plaintiff (Gary).”

The judge went on to say that:

gavel

Judge McGill

"...if the circumstances were different, he would have found there was contributory negligence on the part of the plaintiff, essentially in also failing to keep a proper lookout for the approach of a vehicle and failing to attempt to get out of the way when it appeared not to be slowing down or stopping to avoid him.  That would give rise to an issue about apportionment.  If there was contributory negligence because of the Plaintiff’s intoxication, I would nevertheless apportion the bulk of the responsibility for the collision to the driver of the unidentified vehicle, and only 20% to the plaintiff.”


Gary was awarded $124,934.80.

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But things could have been very different for Gary if he settled his case early. 

Insurers are suspicious by nature.  They think all injured people that make a claim are either exaggerating their symptoms/injuries or are “a fraud”.

Part of the claims process requires parties to attend a settlement conference (meeting) and actively participate in an attempt to resolve the claim. This has to take place before proceedings can be started in a Court.

It is an unfortunate reality that insurers often treat these conferences as a means of trying to get you to settle your case cheaply. They do that by offering a relatively low amount. 

They hope that you are so tired of the claim (in having to attend all of the relevant medical examinations and provide information etc.) and are so tired of the delays (which they have largely contributed to) that you will be more inclined to settle your case for an amount less than you should.

Essentially, they try to take advantage of your difficult predicament.

In Gary’s case, both parties participated in a settlement conference.  The insurer made an offer to settle Gary’s claim in the sum of $25,000.  Gary’s Solicitor made an offer in the sum of $60,000.00.  Gary’s Solicitors recommended not settling his case for $25,000.00. 

The table below shows that the average amount of money received by an injured pedestrian is $118,000.00.  This is compared to the average amount received by a motor vehicle passenger which is $66,000.00.  It's clear just how low the Nominal Defendants offer really was. 

As a result of the insurers actions, Gary’s Solicitors commenced proceedings in the District Court and his matter proceeded to a trial.  Prior to the trial, Gary’s Solicitors made another attempt to resolve his claim and made an offer of $50,000.00 to which the insurer again did not accept.

This tactic taken by the insurer, caused both parties to incur significant costs in proceeding to a trial.  They did not actively participate at any stage to try and settle Gary’s claim for a reasonable sum.

At the end of the trial, Gary was awarded $124,934.80.

Because the Judge awarded Gary more than the offer made by the insurer and even more than the offer made by Gary’s Solicitors, the insurer was penalised.  Their tactics did not work and in fact, they were ordered to pay a considerable amount more towards Gary’s legal fees.

This is an example of just one of the tactics taken by insurers to try and take advantage of an injured person.

It pays to be aware and seek the right advice. 

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Motorbike rider awarded $212,000 after colliding with horse

Introduction

Accidents happen on the road every day.  Accidents between motorbikes and horses are less common, however, that is precisely what happened in this interesting case (Lawes v Nominal Defendant [2007] QCA 367).  In this story, we discover that accidents that, at first glance, don't involve a motor vehicle are still valid in the eyes of the Court and how important it is to know your obligations as a responsible road user. 

Ricky's Story.

Let me introduce you to Ricky Lawes.

Ricky* was a typical 21 year old. He enjoyed going to the pub with his mates and often found himself on the weekend joining his mates for a surf up the North Coast at Rainbow Beach. 

Ricky had recently bought himself a new motorbike and often took it for long rides along the back roads to the coast.

Ricky dreamt of becoming an electrician. 

cloud

Ricky's Dream

I am studying my apprenticeship to become an electrician. I should be done in the new year. 

I am looking forward to starting my dream career. 

Ricky was on track to finish his apprenticeship and get his Electrical Licence until...

He hit a horse while riding his motorbike.

It was Christmas time and Ricky took his bike out a Friday evening for a ride up to Rainbow Beach. 

He was riding along Tin Can Bay Road. Locals would know it’s a quiet, rural road that’s set among forestry and with no street lights.

As Ricky was soon to discover,  someone had struck and killed a horse in the hours before Ricky hit the road. This driver left the horse in the middle of the road, creating a massive hazard to oncoming drivers. 

Ricky was following a ute and the pair were hurtling at 100km/hr towards the horse. 

Ricky decided to overtake the ute. This decision wasn’t dangerous. Ricky wasn’t speeding, the road was long and straight and there were no cars around.

Almost immediately after overtaking the ute, Ricky saw the horse lying on the road. He attempted to swerve around it but with no time or warning, Ricky was unsuccessful. He hit the horse and was thrown from his bike, into a grassy ditch on the side of the road and knocked unconscious. The ute driver he overtook pulled over and called an ambulance. Ricky's injuries were substantial.

Almost immediately after overtaking the ute, Ricky saw the horse lying on the road. He attempted to swerve around it but with no time or warning, Ricky was unsuccessful. He hit the horse and was thrown from his bike, into a grassy ditch on the side of the road and knocked unconscious. The ute driver he overtook pulled over and called an ambulance. Ricky's injuries were substantial.

Ricky was frustrated and mad.

His dreams of completing his apprenticeship were dashed. He had to take significant time off work and his apprenticeship was put on hold. 

Ricky's future was in jeopardy and all because someone had struck the horse, leaving behind an obvious hazard. 

No one deserves to be held back because of someone's careless decision. 

The government recognises this and has provided a scheme for people like Ricky so they can get back to where they were before the accident. Those who have suffered from an accident can bring a claim against the at-fault driver to replace their lost income and superannuation.

The problem for Ricky was he had no idea who hit the horse. 

Introducing the Nominal Defendant.

Who is the Nominal Defendant?

Click to reveal it's definition

Nominal Defendant

To have a case against the Nominal Defendant, the accident has to have been caused by a motor vehicle, which seems obvious right?

Well no. Ricky hit a horse not a car. 

However, Ricky, through his lawyers, argued that the road hazard was caused by another car and the hazard was continued by every single car that passed the horse but failed to warn other road users. 

Ricky raised a claim against the driver who hit the horse and left the scene. 

This is what the case hinged on -  could Ricky’s accident be blamed on the driver failing to warn of an upcoming hazard or should Ricky have been able spot the hazard himself?

Ricky had to prove that the driver acted negligently to win compensation.

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​​​​Was the driver acting negligently?

Ricky needed to prove to the Court that the driver that struck the horse was driving negligently and this caused him to hit the horse. Simply put, the driver needed to be driving recklessly (i.e. speeding, driving erratically, under the influence of alcohol) to be found responsible for Ricky's accident. 

The Judge quickly established that the horse being struck by a person driving negligently was unlikely.

gavel

Judge J Byrne

"The collision between vehicle and horse could readily have happened without breach of duty to road users. The night was dark. The horse was brown. Brumbies are swift. This unfortunate animal could well have rushed in front of a car or truck. The collision might not practicably have been avoided by a driver moving at a suitable speed who also kept a proper lookout. There are accidents that are no one’s fault. Hitting the horse could easily have been one of them."

So the driver wasn't acting negligently and wasn't to blame for creating a hazard but was it his responsibility to warn others of the hazard?

Should the driver have stayed at the scene? 

The judged believed yes. Regardless of whether the driver was at-fault for creating the hazard, they should have known that the collision created a significant hazard. ​

All drivers, once they come across a hazard, are responsible for ensuring that other road users are aware of the hazard. 

The judge stated that the driver who struck the horse had plenty of time to position their vehicle so its lights illuminated the horse. This could have been used alongside their warning lights and would have given other driver greater warning of a hazard ahead. These actions could have warned Ricky of the upcoming hazard with enough time for him to avoid the accident. 

Therefore, the driver was found to be responsible for Ricky's accident. 

Ricky was successful. He proved that the driver's failure to stay at the scene caused his accident.

But Ricky hit a minor snag. The Judge found that Ricky had contributed to his injuries. 

At the time of the accident, Ricky tried to swerve to avoid the horse, but didn't reduce his speed.

gavel

Judge Byrne J

"What confronted [Ricky] was such an obvious danger that, acting reasonably in the interests of his own safety, he should promptly have decreased his speed considerably, which would have enabled him to pass around the horse safely."

The Judge believed that this failure was an act of contributory negligence and as such Ricky's compensation should be reduced by 20%.  Ricky was awarded in total $212,000. 

What is Contributory Negligence?

Click to reveal it's definition

Contributory Negligence

Ricky's case highlights that other road users have a responsibility to warn other road users about a hazard ahead. 

wrench

Tip

If you have created a hazard on the road then you have a duty to warn other road users and minimise the risk of harm to others. There is no one-size-fits-all answer to this problem. Your action after creating a hazard will depend entirely on the circumstances and the potential risk of injury to other road users.


Written by Mitchell Herlihy | Associate

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Here’s to you, Mrs Robinson, for showing us how to prove liability eight years after an accident

Introduction 

Reliability of evidence is something we discuss at length in many case reviews because is so important in the success of people's claims. In this post we will review a real case (Robinson v Australian Capital Territory [2008] ACTSC 80) on how a woman, who was hurt when a bus door closed on her, used evidence to prove who was at fault 8 years after her accident.

We all know that memories fade and having to recall reliable testimonies after 8 years would be a challenge for almost all of us. Learn how Mrs Robinson manage to concretely prove who was at fault without relying on her memories. 

Maureen's Story

Let me introduce you to Maureen Robinson. 

Maureen* was a 59 year old school teacher. She worked for local private schools, St Edmund's College and St Claire's College, in Canberra. Teaching was her life. She loved it and found it very fulfilling. 

She was married to her childhood sweetheart and had two beautiful kids, who were now allw grown-up and doing their own thing in the world. 

Maureen and her husband regularly travelled. They had been all over; seeing rural Australia, parts of Europe and South America. They also visited their son in New Zealand regularly. Travelling more was definitely on the agenda for the pair. 

Mrs Robinson was an avid tennis player and deep down thought she was quite good at it too. 

Maureen was looking forward to her retirement.  

After all, she deserved it. She had been a teacher for many years. 

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Maureen's Dream

"I can't wait until I can retire. Don't get me wrong I love my job, but I am getting tired.
It's time that I give myself more time to do the things I love. I want to travel to parts of Europe and see more of Australia"

Maureen was on track to see her dream retirement within the next 10 years until...

Maureen was hit by a closing bus door. 

On the afternoon of the 10 February 2000, Maureen was on after school duty. This involved guiding the school students of St Edmund's and St Clare’s onto buses to take them home. She had been a teacher all her adult life and was well accustomed to what was involved with after school duty. 

Maureen estimated that on a typical afternoon, twenty or thirty buses would arrive, taking around 1,000 students home each day. The buses stopped at designated bays, depending on where they were going.

It was a normal day on bus duty. Maureen stepped onto the bottom step of the bus, about a metre from the driver and told the school boys to move onto the bus. She moved to the side to allow the students to get on the bus, and then remembers...

"The bus door just thwacked me."

The bus driver, without warning, closed the door on Maureen. She was struck on the left hip by the door and felt instant shock and pain. 

The accident had done some real damage. She had torn her gluteal tendons and developed trochanteric bursitis. 

She now lived in constant pain. 

What is Trochanteric Bursitis?

Click to reveal it's definition

Trochanteric Bursitis

She was devastated and exhausted.

She found that after the incident she could no longer stand for long periods of time, walk long distances, play tennis and attend to the garden. Everything she loved doing was now clouded by her pain. The injury was taking over her life. 

Eventually, she was let go from her work as a teacher because she couldn't fulfill the necessary duties in her role. The school had no non-teaching jobs to offer her and she was now forced into retirement.  

Four years after the accident, she finally had reconstruction surgery to repair her gluteal tendons but the ongoing pain from the accident was still ever-present.  

No one deserves to be held back because of someone else's careless actions.

Maureen raised a claim against ACT government, who was the employer of the bus driver involved in the incident. 

The Courts heard Maureen case 8 years after the accident occurred. It is worth noting that it is unusual to hear of a case being heard so long after an accident occurred, as strict time limits often mean a case must be brought within 3 years from the accident. As with most cases, for the Courts to understand the true impact of the accident they must wait until the individuals injuries have stabilised. Simply put, the injured party has completed the recovery and are unlikely to get any better or worse. This can take months, even years as the case was with Maureen. 

Maureen alleged that the bus driver was negligent, closing the door on her without warning and commenced action against him for:

  •  failing to keep a proper lookout;
  •  failing to warn the plaintiff the doors were about to be closed, and;
  •  closing the doors without ensuring the steps were clear.

For Maureen's case to succeed she needed to provide credible and reliable evidence to the Courts. 

Problem was, it was 8 years after the accident occurred and Maureen and her key witnesses likely would have forgotten important pieces of evidence. She would have been uncertain around particular points and this would have damaged her reputation as a reliable witness. 

How did she overcome it? 

Maureen had three key elements that worked in her favour. 

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1. She immediately reported the accident to the correct authorities. 

Maureen completed a school accident report the afternoon the incident occurred. This report late became an important piece of evidence. It provided an detailed outlined of what happened on the date of the accident. This written and dated account of the event was considered reliable evidence as it was written when the accident was fresh in Maureen memory. 

2. She kept a diary. 

On the second day of trial, Maureen produced a document which she had typed onto a computer. The diary confirmed the events on the date of the accident. They also showed how much the accident impacted her day-to-day. She wrote about how much pain she was in and how much it impacted on her mental health. 

She detailed conversations she had had with school authorities and other teachers and any medical appointments she attended. 

  • 10 February 2000 - I stood on lower step of bus to get students organised into orderly lines before allowing them to board. The door of the bus was clapped shut on my left hip. Painful.
  • 11 February 2000 - Mrs Darley said she would contact ACTION about it. I heard no more. I kept coming to school, sore and aching, expecting the “bruises” to go away.
  • 21 February 2000 - My “bruises” were not feeling any better, I was finding teaching very difficult in this state.
  • 22 February 2000 - I dreaded going out into that crush of students with my left side so sore and tender. 

3. She was honest about what she could and couldn't remember. 

Maureen was completely honest. The defence tried to intimidate her by showing her photographs of different buses and asking her to identify which one she was on. She was cross-examined about the particular type of bus doors that hit her.

Maureen simply told the judge that she had no idea she would have to remember such details of the bus 8 years later. She hadn’t taken any pictures and she hadn’t thought that she would need to remember this information. This was honesty was positively received by the judge. 

Maureen's evidence was concrete. The  judge awarded in her favour. 

The judge awarded Maureen $614,690.64 in damages from the accident. 

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gavel

Judge Master Harper

 "I find that the cause of the door striking [Maureen] was the negligence of the driver, for which the defendant is vicariously liable.

Her injuries have resulted in the termination of her employment. She can no longer play tennis. The pain is with her all the time... It is to her credit that she has maintained a positive approach to life and has continued to engage in physical activities to the extent she can.


I am satisfied that the total amount represents a proper reflection of the impact of the plaintiff’s injury upon her."

This decision reinforces the importance of keeping a record of the circumstances of the accident, and your injuries.

Hindsight is 20/20. While it is difficult for all to have the foresight Maureen did and write down every aspect of their recovery, it is important to document all post-accident events where possible. 

Top Tip

This decision reinforces the importance of keeping a record of the circumstances of the accident, and your injuries. When you are injured, it is difficult to remember every small detail of how you reacted at the time, when your injuries flared up, who you reported the injuries to, and how your injuries made you feel.

The evidence needed will be unique to every situation but items such as accident reports, diaries, doctors notes and receipts for medical expenses can all work to prove what happened with more clarity than you would be able to relay many years later. 



Written by Lucy Kelsey | Solicitor

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Female train driver successfully sues for half a million dollars after zebra crossing accident

Introd​​​​uction

In this post we will base our story* on a real case (RACQ Insurance Ltd v Brennan [2013] QCA 150) on how a female train driver was able to successfully prove the accident lost her a chance at building a better career. Learn the pieces of evidence that were crucial to her claim.

Vicky's Story

Let me introduce you to Vicky Bedford. 

Vicky was a busy 32 year old woman at the beginning of her career as a train driver. She was working for a sugar mill in Proserpine.  

She still lived in her hometown of Mackay and loved the life she was creating for herself.

Vicky was close with her family. She adored her mum and her sister, Francine,  was like her best friend. She was lucky enough that they both still lived close by.

Vicky was motivated and keen to carve out a prosperous career.

Vicky dreamt of working in the mines.

She had hope for the future. She was building a profitable career and was keen to give herself financial stability.

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VICKY's Dream

"I would love to work for QR National or Pacific National as a train driver.
The money is so good and I really feel it would be quite a prestigious job."  

Vicky was in line for her job promotion until…

She was struck by a speeding car.

It was a sunny day in the heart of Mackay CBD and Vicky was out shopping with her mum. As they crossed the road at the zebra crossing outside Subway, a reckless driver in a station wagon hit Vicky and narrowly missed her mum.

Vicky was catapulted some 7-10 meters into the air - landing in a  bloody heap on the hot bitumen.

Lucky to be alive, Vicky was rushed to the local hospital with several traumatic injuries to different parts of the body including her:

  • Left Shoulder;
  • Lower back;
  • Head; and
  • minus
    Hips.

As a result of the accident, Vicky also developed a significant psychological condition.

She had to take 3 months off work.

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Vicky felt frustrated and hopeless.

She was completely reliant on her co-workers to cover most of her work.

She was fortunate to have a sympathetic employer who accommodated her special remedial needs but her dream to work in the mining industry as a train driver was now out of reach.

No one deserves to have their career cut short because of someone's careless actions.

The government thankfully recognises this and has put in place a Compulsory Third Party (CTP) insurance scheme to compensate people like Vicky who are injured in an accident.

What is the CTP insurance scheme? 

Click to reveal it's definition

CTP Insurance Scheme

People like Vicky can raise a claim against the insurer of the at-fault driver to replace their lost income and superannuation.

However, as with all CTP claims, Vicky had to prove to the Court that she had lost income and future earnings because of the accident.  

For Vicky to succeed, she had to definitively prove that she would have had a successful career as a train driver.

The most significant part of Vicky’s claim was the loss incurred to her future career as a train driver.

All Vicky needed to do was provide enough evidence that the court could see she would have been able to pave a successful and profitable career as a train driver.

The evidence that Vicky presented included:

  • Pay slips of her income before the accident ($800 per week);
  • Pay slips of her income after the accident;
  • Pay slips of her colleague who got a job as a driver in the mine that proved a significantly higher pay level was possible ($3,600 per week);
  • minus
    Reference from her employers of her good work performance and ambition; 
  • minus
    Verbal evidence from a train driver in the mining industry that there was high demand for train drivers;
  • minus
    Verbal evidence from a mining company that they frequently hire female drivers, even inexperienced ones; and 
  • minus
    Verbal evidence from doctors that Vicky was unable to work to her fullest capacity after the accident. 

This collection of evidence proved that Vicky had lost income as a result of the accident.

It also confirmed that Vicky’s claims were correct that she could have earned significantly more throughout her career. The evidence from her colleague that secured a job in the mines highlighted that she could have earned up to $2,800 more than what she was earning at the time of the accident.

Together this evidence was very compelling and the judge awarded Vicky $411,000 for her lost career as a train driver.

In total Vicky received $528, 925.26 in compensation.

But they hit a snag, the insurer appealed the judge's decision.

The insurer felt that the award for Vicky’s future earning as a train driver was grossly excessive.

The insurer argued a sum of $100,000 was appropriate for her lost career considering:

  • Vicky had not been looking for higher paid work at the time of the accident;
  • The higher paying work might not have been available; and
  • It was uncertain whether she would have been prepared to leave her home town to pursue a career in the mines.

Of course, Vicky’s initial evidence was strong. There was demand for drivers in the mines and references from her employer said she was a highly motivated individual.

The appellant judge dismissed the insurer's claims that Vicky would not have been able to secure a promotion. 

gavel

Chief Justice

"The [Trial] Judge has done the best he could … [For me] to have pretended to have greater accuracy [in determining future income loss] would have been both inappropriate and false. I would order that the appeal be dismissed."

Vicky's evidence won her the compensation she deserved.

This case shows that if you can illustrate to the court you were a capable employee with ambitions to progress further in your career the Court will compensate you for the loss you have incurred.

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Evidence that can be important to prove the likelihood of promotion includes:

  • Pay slips from past and current employers
  • Reference from employers on work ethic and likelihood of promotion
  • Testimonies from recruiters in the industry about employment prospects
  • minus
    Data on average salaries of workers in the desired job  

Tip 1

Evidence, Evidence, Evidence!

You must be able to support claims in court with credible evidence. 

These pieces of evidence are easy to collect but so pivotal in the outcome of claims, as was proven in Vicky's case. 


Written by Ashley Tulley | Chief Commerical Officer

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

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