22 November 2018

A Win Is a Win, but at What Cost?

Kevin Barratt
Kevin Barratt Compensation Lawyer

Back in April 2018, I reported on a case of Hunold v Twinn & State of Qld in an article entitled “Brushes with authorities”, following some publicity at the time about members of the public having run-ins with the police.

Mr Hunold was successful at trial. His evidence as to the circumstances of his arrest and injury were preferred, but a number of challenges faced by him in the case were outlined in my earlier article.  The  effect was that Mr Hunold only received a fairly modest award for damages of $27,500, including $11,000 for general damages (for pain and suffering), $1,500 for out-of-pocket expenses and $15,000 for past economic loss.  No allowance was made for future economic loss, future loss of superannuation benefits or future expenses.

The case has now made its way through the Court of Appeal, giving Mr Hunold one final brush with the authorities.

The trial judge found that Mr Hunold sustained an L3 right transverse process fracture in effecting his arrest.  The trial judge did not accept that disc bulges at L4/L5 and L5/S1 were related to his arrest.

The trial judge found, on the balance of probabilities, that Mr Hunold’s L3 injury was fully resolved in just under 16 months from the date of the incident.

Mr Hunold sought a re-trial on the issue of the quantum of damages.

Central to Mr Hunold’s application for leave to appeal was medical evidence – which had been accepted at trial – that, under the prescribed American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition (“AMA 5”), he had sustained a 5% permanent impairment of whole body assessment.

The Court of Appeal (‘COA’) referred to the criteria outlined in the Civil Liability Act 2003 (Qld) for assessing damages for future economic loss, namely:

“The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters”.

The COA noted that the AMA 5 guidelines prescribed a permanent impairment of 5% – 8% for a category II injury. That category includes “fracture”, whereas a category I injury, which includes “no fractures”, mandates a 0% whole person impairment.

The COA found that the trial judge had properly weighed up the evidence against the criteria for assessing future economic loss.  Significantly, the trial judge found that resolution of Mr Hunold’s injury was consistent with the medical evidence.  The trial judge also analysed Mr Hunold’s credibility in weighing up the reliability of his evidence against objective evidence at trial.  The trial judge outlined a number of issues that reflected poorly on Mr Hunold’s credibility, including dreaded Facebook posts which tended to paint a different picture as to the extent of his ongoing disability.  The trial judge had also properly considered the circumstances of Mr Hunold’s medical discharge from the Army (a little over 2 years after the incident).

The final result was that Mr Hunold was unsuccessful in his appeal.

The case is again a timely reminder about giving proper consideration to pre-accident medical history, considering credibility issues, properly weighing up the medical evidence and having regard to the adverse effect of contrary material on social media, including Facebook.

Overall, a win to Mr Hunold, but at what cost?

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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