TAC common law claims with a pre-existing injury or illness

Many people who are injured in a car accident or other road accident assume that because they have a pre-existing injury or medical condition that they are unable to pursue a TAC claim for common law damages. This simply isn’t the case.

You can pursue a TAC common law claim in circumstances where you have aggravated an existing injury or condition. You can also pursue a claim where an underlying condition was previously asymptomatic but becomes symptomatic following your accident. For example, you may have underlying osteoarthritis in your hip joint, and, despite this condition, you experience no symptoms. Following a road accident, however, you develop pain and discomfort in your hip due to the underlying arthritic condition.

In this article, we explore what is needed to pursue a TAC common law claim for damages when you have a pre-existing injury or condition.

To be successful with a TAC common law claim, you need to prove 2 things:

1. That you sustained a ‘serious injury’; and
2. That another person or entity was negligent, causing the accident that led to your injury.

You must prove both of the above to be entitled to receive TAC common law damages. Further information about what is required to receive damages can be found in our earlier article, “TAC Common Law Damages After a Motor Vehicle Accident in Victoria”.

In claims involving an aggravation of an existing injury or condition, you must be able to separate the consequences of the existing injury or condition from the aggravation caused by the car accident, and show that the consequences from the aggravation alone are serious.

When determining the impact of an aggravation of a pre-existing injury, consideration must be given to the state of your health before and after the pre-existing injury or condition and also the state of your health before and after the aggravation. You cannot combine the consequences of any pre-existing injury or condition with the consequences flowing from the aggravation to show you have a “serious injury”.

The 2023 case of Piedimonte v Transport Accident Commission [2023] VCC 1698 (“Piedimonte”) involved an applicant with a complicated medical history and significant pre-existing injury/condition:

Ms. Piedimonte (the Plaintiff) was involved in a car accident on 1 April 2016. She claimed that she had suffered injuries as a result of the accident, including to her right hip.

The Plaintiff made a TAC serious injury application in respect of her injuries, which was rejected by the TAC. She then commenced court proceedings in the County Court of Victoria to establish she had suffered a “serious injury” to pursue a TAC claim for common law damages.

In this case, the Plaintiff’s application was made on the basis of the injuries she had suffered to her right hip.

You can learn more about rejected serious injury applications in our earlier article, “What happens if the TAC denies your Serious Injury Application?”

The Plaintiff had an extensive prior medical history, most of her issues relating to problems with her spine.

These issues included:

• Various disc bulges in her spine for which she underwent a microdiscectomy surgery in 2008;
• Various orthopaedic injuries including a fractured right ankle and right shoulder injury;
• Carpal tunnel release;
• Mental illness including depression and anxiety;
• 21 cycles of IVF; and
• Gastric banding surgery.

Notably, the Plaintiff attended an osteopath on multiple occasions (around 33 times) in the years leading up to the transport accident, where she had complained of pain and other issues affecting her hips.

Following the accident, the Plaintiff underwent a variety of investigations and treatment including:

• MRI scan on 5 August 2016 which confirmed a chronic labral tear and other soft tissue injuries;
• 2 steroid injections in 2016.
• Further steroid injection in June 2018;
• Further MRI scan on 1 June 2019 which revealed osteoarthritis and other degenerative changes;
• Attendance on an orthopaedic surgeon who recommended hip replacement surgery. The Plaintiff made the decision to put off surgery for as long as possible to care for her young daughter;
• Ongoing cortisone injections at 6-month intervals and regular use of prescription and over-the-counter painkillers.

At the court hearing, the Plaintiff gave evidence that the hip pain she experienced prior to the accident was in a different location and was a different type of pain to what she experienced after the accident. She also gave evidence that her level of hip pain increased significantly following her car accident.

In this case, it was common ground between the parties that the Plaintiff had a significant condition affecting her right hip and that she required a total hip replacement.

The judge in this case needed to determine whether:

• A new injury had arisen because of the transport accident;
• An aggravation of an existing injury or condition affecting the Plaintiff’s hip met the “serious injury” test; or
• The Plaintiff’s right hip injury or condition was the natural progression of an underlying disease unrelated to the transport accident.

In this case, the Plaintiff was successful! The judge accepted that the injury to the Plaintiff’s right hip was a “serious injury”, granting her leave to pursue a TAC common law damages claim for her pain and suffering and loss of earnings.

In finding for the Plaintiff, the judge accepted that while the Plaintiff did experience hip pain prior to the car accident, she never attended a medical practitioner and was never referred for any scans of her hips before the accident. They also accepted her evidence about the changing nature and location of her hip symptoms after the accident.

The judge also found that the Plaintiff’s labral tear was caused or significantly contributed to by the transport accident and was not a natural progression of underlying disease which would have occurred anyway. The judge was also satisfied that the presence of the tear led to the development of arthritis, causing the need for a total right hip replacement.

In reaching their conclusions, the judge carefully considered the medical records relating to the Plaintiff’s pre-accident osteopathic treatment. These records helped the judge to analyse and compare the consequences of her hip condition before the accident with those which resulted after the transport accident.

The case of Piedimonte highlights that TAC serious injury applications involving pre-existing injuries can be complex – the path forward for applicants is not always straightforward. Careful preparation by an expert personal injury lawyer with experience in motor vehicle accident claims is critical to the success of these applications.

At Polaris, we are experts in TAC common law claims. For advice or assistance with any aspect of your TAC claim, please get in touch directly with Polaris Lawyers.