In Victoria, if you are injured in a road accident, to receive payment for your pain and suffering or for future economic loss (a common law claim), you must show the accident was caused by someone else’s negligence and that you have suffered a ‘serious injury’. In this article, we review the case of “Marc White v TAC [2019]”; a cyclist injured in a road accident in 2015 where the TAC denied the plaintiff’s ‘serious injury application’.
This case ultimately ended in litigation in the courts. As we have discussed in a previous blog, “Psychological serious injury applications – a TAC case law review” , most TAC claims never go to court, however, some matters need to be litigated to achieve fair compensation for the injured person.
Background
This is a case which is known as a “range” case. There is no dispute that the person has suffered an injury due to the transport accident
Rather, the dispute is whether or not the consequences that flow from that injury are “very considerable when compared to other cases in the range of possible impairments”, which is what is required to satisfy the serious injury test.
The facts
Mr White was injured in a transport accident on 4 May 2015. His bicycle was struck from behind by a car. As a result of the accident, Mr White suffered injuries to his lower back, left shoulder and right elbow. He made a reasonable recovery from his shoulder and elbow injuries but continued to suffer from ongoing lower back pain.
Prior to the accident, Mr White had led a very active sporting life which included golf, tennis, squash and cycling. He was a member to two cycling clubs and cycling was his main hobby. He’d previously cycled five to six times per week and used to cycle 100km rides most weeks.
In addition to his sporting activities, Mr White also had a busy social and domestic life and was actively involved in caring for and playing with his young daughters. He was unable to participate in the annual Dad’s football match due to his physical limitations after the accident.
Mr White returned to his pre-accident activities of cycling and golf. He could do the activities but it was now painful and he could not enjoy or participate in those activities in the way that he previously could.
In November 2015, Mr White returned to lighter duties at work and struggled to sit and stand at this time. This made it difficult for Mr White to travel interstate which affected his business.
The Transport Accident Commission’s position
The TAC denied Mr White’s serious injury application on the basis that his back injury did not satisfy the definition of serious injury in s 93(17) of the Transport Accident Act 1986.
At hearing, the TAC conceded that Mr White did sustain an injury from the transport accident, but that Mr White had suffered a pre-existing lower back condition which he required regular osteopathic and acupuncture treatment for.
The TAC argued that the consequences arising out of the aggravation of Mr White’s lower back condition cannot be described as very considerable.
The plaintiff’s position
In response, Mr White emphasised that he obtained osteopathic and acupuncture treatment prior to the accident due to the amount of cycling he was doing at the time and not due to an injury.
He asserted that the treatment was more for maintenance in that it helped his body deal with the demands cycling had placed on his body.
He argued that the loss of recreational activities and the ability to enjoy those activities pain free was a serious consequence of this transport accident injury.
The evidence
The TAC challenged Mr White’s credibility as a witness.
His evidence regarding his golf handicap and his pre-injury cycling was challenged. He was also challenged on his ability to return to these activities and the impact of the injury on his ability to perform his pre-injury recreation.
The Court did not accept Mr White’s evidence in relation to his handicap or the amount of time it took him to return to cycling. The Court found that he has a tendency or inclination to exaggerate this evidence to support his claim.
Given the Court’s view of Mr White’s reliability as a witness, the Court formed its judgement based predominantly on the objective evidence; that is, the medical evidence.
The court’s finding
Based on the medical evidence, the Court accepted that Mr White suffers a chronic condition causing persistent lower back pain. The Court found the medical evidence showed consistent complaints of lower back pain since the accident. The pain ranged from mild discomfort to acute flare-ups during which Mr White found it difficult to walk.
It was expected that he was a well-motivated man who has resumed most of his activities but at a lower level. Given the high degree of activity that Mr White engaged in prior to the accident, it was held that this reduction in activity level was of great significance to him.
The Court accepted that Mr White suffers from daily pain and stiffness. Also, that it is necessary for him to stretch and exercise to be able to maintain his base level of function – working and caring for his children.
It also accepted that he requires medication, taking Voltaren a couple of times per week.
The Court granted Mr White a Serious Injury Certificate. The Court was satisfied that Mr White’s spinal condition due to the transport accident can be described at least as, very considerable.
Where to from here?
Mr White now has his Serious Injury Certificate; the first step in his common law claim. The Court’s ruling means that if he can show the accident was caused by the negligence of the other driver, he is able to claim for pain and suffering damages and economic loss against the TAC.
You can read about the maximum awards payable for transport accident common law claims in our article, “What is the maximum compensation I can receive for my personal injury claim?”
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