After sustaining injuries in a motor vehicle accident in Victoria, you are often eligible to claim TAC benefits. If that accident was caused, or contributed to, by someone else’s negligence, you may also be entitled to common law damages (separate to your statutory TAC entitlements). In this blog, we review a case where Polaris Lawyers was able to obtain a serious injury certificate to support a common law claim, without needing to go to court.
In order to make a claim for common law damages for pain and suffering and economic loss, you need to show that you have suffered a serious injury and that your injury was caused or contributed to by a negligent party. You can learn more about common law compensation and meeting the serious injury threshold here.
*The name of our client has been changed.
Circumstances of the motor vehicle accident (the accident)
Whilst on his way to work, Mr Smith in his early 50’s was injured after he’d entered a round-about and another vehicle failed to give way and hit into his motorbike.
This caused Mr Smith’s left leg to be squashed between the bull bar of the other vehicle and his motorbike. The impact then caused Mr Smith to fall off his motorbike and slide along the road until he landed at the central median part of the roundabout.
Both the police and ambulance attended the accident scene. Mr Smith was taken by ambulance to the nearby hospital where he received medical treatment for approximately 4 days before being discharged.
As a result of the accident, Mr Smith sustained the following injuries
- Multiple and significant bruising to the left leg;
- Comminuted fracture to the left leg (fibular);
- Nerve damage to the left foot causing a condition called drop-foot;
- Grazes to his left thumb;
- Scarring; and
- Psychological trauma including post-traumatic stress disorder (PTSD), depression and anxiety.
Upon discharge from the hospital, Mr Smith was required to wear a CAM walker to treat his fractured fibula. He was essentially bedridden for over 3 months.
After 3 months Mr Smith continued to experience constant pain in his left leg and his drop foot had also not improved. He took a number of pain medications to help manage his symptoms. He was later referred to an orthopaedic surgeon who identified that he still had significant bruising around the common peroneal nerve requiring neurolysis. Mr Smith continued with rehabilitation and began to show some improvement in his left leg symptoms.
However, two years later Mr Smith was still experiencing ongoing intermittent pain in his left leg and continued to wear the CAM boot to avoid tripping over whilst walking.
He’d weaned himself off prescription pain medications but still used over the counter medications such as Panadol and Nurofen when his symptoms flared up.
Although he could manage to get around his home, his physical restrictions limited his ability to stand, bend, kneel, squat and walk for too long. This in turn prevented Mr Smith from returning to his pre-injury work as a machinist. His inability to work and financially contribute to his household made him feel very frustrated and depressed. Mr Smith became more emotional and often teared up whenever he’d hear or see reports of other transport accidents on the news. He consulted a psychologist once every fortnight to help cope with his changed life circumstances. He was diagnosed with adjustment disorder with mixed anxiety and depressed mood and some traumatisation features.
Mr Smith consulted another orthopaedic surgeon about his ongoing issues in his left leg. An updated x-ray showed that his fibular fracture remained malunited two years after the accident and that he required surgery. Mr Smith underwent fusion surgery of the proximal tibio-fibular joint in his left leg. He recovered relatively well from the procedure and continues to attend physiotherapy weekly.
Physical and psychological consequences of the injuries
Despite the above treatments, Mr Smith continues to have pain and restrictions in his left leg which still limit his daily activities and ability to work.
Prior to the accident, Mr Smith was working full time as a machinist earning almost $52,000 annually. His role as a machinist regularly required him to bend, squat, carry heavy loads, walk and stand for prolonged periods of time. Due to Mr Smith’s ongoing symptoms and restrictions, he had not returned to work since the accident.
Since completing his apprenticeship as a young man, Mr Smith had only worked as a machinist in a very specific industry. Given his ongoing restrictions, Mr Smith doubted whether he could ever return to that kind of work or any kind of work for that matter.
The ongoing restrictions and deterioration in his mental health also impacted Mr Smith’s quality of sleep. He often woke up feeling tired and irritable as he would only manage 4 – 6 hours of interrupted sleep. He found that his ability to focus and remember things had decreased. Mr Smith used to tend to the lawn and gardens at home by himself. Since the accident, he has struggled to mow the lawn and garden independently of his son’s help.
Due to his physical restrictions, lack of confidence and trauma after the motorbike accident, Mr Smith was no longer comfortable riding his bike. He previously rode his motorbike to and from work every day. Even though he had replaced his previously damaged bike, he found himself avoiding social functions with his friends at the motorcycle club. He also stopped volunteering at the local fire brigade which made him feel even more isolated.
Compensation secured for Mr Smith
Mr Smith received lump sum compensation of $520,000. See below for the breakdown of his compensation.
Mr Smith’s accident related injuries were assessed at 19% whole person impairment which entitled him to a lump sum benefit of approximately $20,000. For more info on benefits and entitlements under the TAC scheme, please visit “TAC claims – all you need to know”.
Common law claim
The TAC granted Mr Smith a ‘Serious Injury Certificate’ and admitted liability for the accident. That is, they agreed the other driver negligently caused the accident.
This allowed Mr Smith to claim compensation for his pain and suffering and economic loss. In addition to the impairment benefit of $19,960, the TAC agreed to pay Mr Smith a further $225,000 for his pain and suffering and $275,000 for his economic loss (past and future).
Given Mr Smith’s age (in his 50’s), his ongoing restrictions and very specialised work experience, the TAC conceded that he was unlikely to return to his pre-injury work as a machinist due to the physical demands. The TAC also acknowledged that Mr Smith was likely to struggle to return to alternative work in a full-time capacity until retirement age.
You can learn more about maximum personal injury compensation here.
Loss of earning benefits
As Mr Smith had not been able to return to work from the date of his accident, he received TAC loss of earning payments on a fortnightly basis until his common law claim settled – a total of approximately $140,000 over almost 3 years. He was not required to repay this amount as part of his common law settlement.
Medical and like expenses
Despite wrapping up his impairment and common law claims, the TAC’s obligation to pay for Mr Smith’s reasonable medical expenses for his accident-related injuries remains ongoing.
TAC’s contribution to Mr Smith’s legal fees
Lastly, as Mr Smith was successful in both his impairment and common law claims, the TAC paid a significant portion of his legal fees.
No amount of financial compensation will ever be enough when you have serious injuries as a result of an accident. At Polaris we aim to maximise the compensation and minimise the impact of the compensation process on your life.