A duty of care is a legal obligation to take reasonable steps to not cause foreseeable harm to another person...
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Commonly, Plaintiff’s pursuing a claim for damages arising as a result of a workplace, motor vehicle, or public liability incident will be assessed by suitably qualified experts for the purposes of obtaining medicolegal reports. The District Court of Queensland’s decision in Hariharan offers useful insight into the way in which a court may contend with significant divergence of opinion expressed in such reports.
On 15 February 2017, the Plaintiff, Balasubramanyam Hariharan, was involved in a collision between his vehicle and a vehicle driven by the First Defendant, Evelyn Vojtisek. The First Defendant was insured by the Second Defendant, Allianz Australia Insurance Limited. Prior to trial, liability for the circumstances of the subject accident had been admitted. Accordingly, in issue at trial was the assessment of the quantum of damages.
Two specialists provided evidence at trial as to the Plaintiff’s condition; Dr Alan Cook and Dr Ian Dickinson.
Dr Cook
The Plaintiff relied upon the evidence of Dr Cook, who opined that the Plaintiff had sustained a generalised musculoligamentous injury and/or soft tissue injury to the cervical spine, along with an aggravation of pre-existing degenerative changes, as a result of the subject accident. Dr Cook concluded that there was a five (5) percent impairment of the cervical spine referrable to the subject accident. No reduction was made for pre-existing pathology, as any degenerative changes were completely asymptomatic prior to the subject accident.
Dr Cook gave evidence under cross examination that the Plaintiff’s work capacity had been reduced as a result of the subject accident, and that he could now only tolerate light manual, or sedentary work.
Dr Dickinson
The Defendants relied upon the evidence of Dr Dickinson, who opined that radiological evidence revealed pre-existing degenerative change in the cervical spine. In his view, the Plaintiff’s symptomology was not related to the subject accident, but rather the Plaintiff’s pre-existing pathology. Dr Dickinson concluded that there was a zero (0) percent impairment of the cervical spine referrable to the subject accident.
Dr Dickinson gave evidence under cross examination that the Plaintiff could return to his pre-injury occupation. He agreed that the heavy lifting involved in this occupation would be problematic for the Plaintiff, but any such issues would be unrelated to the subject accident.
As is likely evident, the quantification of damages for economic loss, both past and future, was to be predicated on the resolution of the conflicting opinions of Dr Cook and Dr Dickinson, given the large divergence in respect of their assessments of the Plaintiff’s post-accident functional capacity.
Kent QC DCJ noted that an acceptance of the opinions of Dr Dickinson required an acceptance of the premise that “the previously asymptomatic plaintiff, a good, consistent and diligent worker, went from a position of having no symptoms to significant, ongoing and restricting pain and stiffness, such that he could no longer continue in his longstanding and desired occupation, on what appears to be a permanent basis merely because of the materialisation of the previously asymptomatic condition”. Additionally, it would require an acceptance that the significant forces involved in the accident did not play a causal role in the original premise, despite the symptoms only arising after the said accident.
In this way, his Honour relied on the body of evidence available to him, including evidence pertaining to the Plaintiff’s work history, rather than a narrow reading of the medical opinions, in concluding that Dr Cook’s opinion should be preferenced over Dr Dickinson’s. As opined by his Honour, “Doctor Cook’s [opinions] simply seem to me, in the overall factual scenario, to have more logical force and be consistent with objective facts.”
His Honour found in favour of the Plaintiff in the sum of $269,840.64, which included awards of $82,450.00 and $152,373 for past and future economic loss respectively.
In the event of a significant divergence of expert opinion regarding a claimant’s medical condition, a court will often look at all available evidence holistically, perhaps preferencing that opinion that best aligns with the body of evidence available to them.
It can be difficult to navigate a personal injuries claim, especially in circumstances in which a claimant and the insurer has obtained conflicting medical opinion. In the event that you need assistance with an ongoing personal injury matter, please reach out to the author, Will Deicke, at Littles Lawyers today.
A duty of care is a legal obligation to take reasonable steps to not cause foreseeable harm to another person...
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