We see low ball tactics from insurer’s every day. One such tactic is suggesting that plaintiffs are exaggerating their injuries and that they are fit to return to their old job and do the same duties.
“…there’s absolutely nothing wrong with them.”
In this case (Foster v Carter & Anor ), we find out how Karen overcame these tactics and netted herself nearly $200,000 more in compensation.
Let me introduce you to Karen Foster.
Karen* was a 50-year-old bus driver.
She had just recently broken up with her long-term partner. She was still living in their shared home in Battery Hill, QLD.
Karen was saving money to buy her own place.
It was just an average day at work for Karen. She was on a bus route she knew quite well, picking up grizzly city commuters on their way into work…
…that was until Jade Carter lost control of her Holden Commodore.
Karen was exiting a roundabout when Jade drove straight through, careening into the back of Karen’s bus before ricocheting onto the median strip.
Karen held onto the steering wheel trying to control the lurching bus. She was shunted at least half a metre sideways.
The force was described as a ‘slight shudder', but its impacts were much further reaching than that.
Karen had suffered whiplash injuries to her neck and lower back.
Because of the injuries she sustained in the accident, Karen was left unable to:
Karen was overwhelmed.
Her hopes of moving out were dashed. Her persistent neck and back pain meant that both her work and everyday aspects of home maintenance were now beyond her. At 50 years of age, Karen had been forced into retirement.
She was strapped for cash and had to open the second room in her home to a boarder to help bring some money in.She felt like her home had become a prison cell.
People shouldn’t be left with a huge financial burden because someone couldn’t control their car.
Thankfully Karen was able to bring a compensation claim under the Civil Liability Act.
The Civil Liability Act can give people their financial freedom back by providing an avenue for monetary support for their lost income and covering any medical expenses or treatments.
Introducing the Civil Liability Act
Karen brought against Jade and her insurer, RACQ Insurance Limited for pain & suffering, lost income and cost of ongoing care.
The insurer’s tactic was to downplay the accident and suggest that Karen was exaggerating her injuries and their effects.
Adding to that, they sharply disagreed on the amount that should be awarded for Karen's future economic loss.
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For Karen to succeed she had to prove the far-reaching extent of her injuries.
Karen used testimonies from her ex-partner and the boarder that moved in after Karen’s accident to confirm the far-reaching effect her injury had on her life.
Her ex-partner described Karen as ‘fit as a Mallee bull" with a “full-on” social and work life.
He also told the court that Karen had “gone downhill” drastically since the accident.
He told the court how he now has to help Karen domestically including doing the dishes, grocery shopping, vacuuming, washing and mowing.
Karen also relied on her boarder to help drive her to medical appointments and complete some household chores too.
She also needed to prove that she was unemployable after the accident.
Karen alleged that her neck, spinal and psychological injuries meant she wasn’t able to work anymore.
The Insurer's Argument.
While Jade and her insurer admitted liability for the accident, they strongly disagreed that Karen should be awarded any more than $75 thousand for the income she’d lost being unable to work.
Karen, on the other hand, believed that her future economic loss should be calculated by what she would have earned as a bus driver until her retirement – around the age of 70.
To confirm her claims, Karen asked her medical practitioners to testify on her behalf. These experts include her neurosurgeon, physiotherapist and occupational therapist. All three medical experts agreed that Karen's employability was impaired to the extent that she could no longer work as a bus driver.
However, some believed that she might have been able to have a part-time, lightweight, semi-sedentary occupation such as a receptionist.
What did the judge think?
The judge’s decision lay somewhere between the insurer’s story and Karen’s.
For the extent of her injuries, the judge noted that she had suffered significant injuries as a result of the accident, regardless of how hard or soft the collision was.
For her employability, the judge also agreed that Karen’s ability to work was impaired.
“It is apparent from the plaintiff’s evidence that she has adopted a routine for managing her pain that is currently not conducive to paid employment, but … she has some prospect of obtaining light sedentary work.”
The judge awarded Karen $270,000 for her future income loss.
In total, Karen was award $539,765 for damages including her pain and suffering, medical expenses, past and future economic loss and care costs.
Karen's case proved that you should fight for your worth.
By far the most significant component of the claim, making up more than 50% of the total damages, was the amount the court awarded for Karen’s inability to continue working as a bus driver for the rest of her life.
Had Karen settled for the insurer’s offer she would have missed out on almost $200,000 in compensation.
It also highlights the weight that personal reference can hold in court.
It was Karen’s evidence, corroborated by that of her ex-partner and her boarder, that substantiated her claim. Without the compelling and consistent story being told by these three witnesses, the outcome might have been very different.
If a person is injured in an accident and hasn’t obtained statements from their friends or family members to corroborate their evidence about the real-life impact of the crash, it could dramatically impact their entitlement to compensation.
Written by Ashley Tulley | Chief Commercial Officer
* The names and narrative have been altered but the facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.