MVA: Deliberately misleading omission in relation prior medical history

Clapham v Butler & Anor [2016] QDC 268

Andrews SC DCJ

The plaintiff and defendant were involved in a motor vehicle accident which occurred in 2013. The defendant negligently drove into the rear of the plaintiff’s stationary vehicle. As a result of the accident, the plaintiff suffered injuries to his wrist and his thoracic/lower cervical spine. The plaintiff also complained of knee pain within a week of the accident.

The issues for Andrews SC DCJ were whether:

  1. Is the knee injury as a result of the collision or pre-existing?
  2. Have the injuries to the wrist and thoracic/lower cervical spine resolved?
  3. The assessment of damages

The knee injury

Andrews SC DCJ was not satisfied that the plaintiff’s knee pain was as a result of the accident. Particularly, His Honour found that the plaintiff was misleading in his medical history:

[25] … The plaintiff did not tell Dr Ganko about his knee having been symptomatic and explained that he did this “because I thought he has the MRIs, he’s got my [indistinct] he makes his own decision”.

[26] The plaintiff’s instructions to Dr Ganko about his lack of symptoms were deliberate. They were not an oversight. They were deliberately misleading by omission

[37] I accept the opinions of Dr Dickinson with respect to the effects of the collision upon plaintiff’s right knee. There was no effect upon the knee as a result of the motor vehicle accident. The plaintiff has significant problems with his right knee

[38] Perhaps the plaintiff believed that his knee was aggravated in the collision. It is unnecessary for me to determine whether he believed that or not. I find that the plaintiff decided to deliberately keep from the medical practitioners he saw after the collision and to keep from WorkCover the history of injuring his knee in June 2013 and of the continuing symptoms which followed. That demonstrated a willingness to mislead with respect to his knee.

Wrist, thoracic/lower cervical spine and chest injury

As to the injuries to the plaintiff’s wrist, his Honour allowed the plaintiff for twelve months following the accident but was not satisfied that the symptoms after November 2014 were related to the accident, holding that those symptoms were due to pre-existing pathology, osteoarthritis.

As to the neck, back and chest injuries, Andrews SC DCJ reviewed the medical reports but was not satisfied that the description of “horrendous pain” was consistent with the plaintiff’s movements and conversation and the scene.

Assessment of damages

Excluding the knee which affected the plaintiff the most and only allowing 12 months for the wrist because of osteoarthritis, his Honour an ISV of 4 for the neck. Further, his Honour found that the plaintiff’s disabilities in his occupation in building granny flats were related to aged related degenerative change as opposed to being caused by the accident. Damages were assessed at:

Head of damage Amount
General Damages $5,440.00
Past Economic Loss Nil
Future Economic Loss Nil
Special Damages $13,310.05 (Agreed)
Total $18,750.05

David Cormack – Brisbane Barrister & Mediator

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