How one man dodged an insurer’s low ball tactics and doubled his compensation

Introduction 

Facing insurance companies can be a tough and confronting thing. Sadly, we often hear stories of injured people accepting a low ball offer from an insurer to get the ordeal over with.

As we discover in this case (Gary John McLean v Nominal Defendant [2012] QDC73), it pays to not settle early. After all, you wouldn't sell your house for less than it's worth, why would you sell yourself short too?

Gary's Story 

Let me introduce you to Gary McLean. 

Gary* was your typical Aussie bloke.

He was 38 years old and worked casually as an all-around handyman, taking on jobs such as a labourer and tree-lopper.

He had 4 beautiful children who he loved dearly and tried to see as much as possible. He was living with his sister in Deception Bay at the time and was saving some money to get a place for himself.

Gary also loved to hang out with his mates. He was often found at the local pub having a few knock-off beers.

Gary was looking forward to getting his own place. 

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Gary's Dream

I am saving up as much as I can and working lots so I can afford to get my own place. 
Hopefully, my kids can come round and stay once I am in my own house.

It was a Sunday afternoon on 8 March 2009 when Gary and his friend decided to meet at their local pub to have a couple of drinks.

Gary then decided to walk home to his sister’s place. On the way home, he crossed the road on Maine Terrace. 

Gary looked before crossing and did not see any cars coming. 

As he started to walk , a car came quickly around the corner from Bay Avenue.

He tried to jump back but the car collided with him. 

The car ran over both of Gary’s feet. He was in incredible pain and when he went to stand up his feet collapsed under him.

The car that hit him drove off leaving Gary behind.

An elderly couple found Gary and drove him to his sister’s place, where he ended up lying on the front lawn. The ambulance was called and arrived at the house at about 7:00 pm.

Gary had fractured both of his feet. He was left with permanent impairment from the accident including an abnormal gait, constant pain and difficulty standing for long periods of time.

Sleeping became an issue and Gary developed post-traumatic stress disorder and depression.

He could not work for periods longer than 2 hours and was unable to complete simple household duties.

Gary was mad.

His employment opportunities were next to nothing and now his dream of owning his own home was out the window.

There was no way he could afford his mounting medical bills and the necessity to have assistance around the home.

No one should be left with permanent injuries and financial stress after a hit & run accident.

Gary raised a claim against the Nominal Defendant to cover his lost earning capacity, medical bills and need for domestic care.

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Introducing the Nominal Defendant.

What is the Nominal Defendant?

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Nominal Defendant

The Nominal Defendant argued that Gary was an unreliable witness and his intoxication contributed to his injuries. 

Gary's credibility

The Nominal Defendant argued that Gary’s evidence was unreliable so his account of the accident should not be accepted.  

Gary had given various different accounts of what had happened to different people. The form completed by one of the paramedics said Gary stated he was hit by a car travelling at approximately 70-80 kph and was thrown over the vehicle.  

The hospital notes recorded Gary complaining about being hit by a car which did not stop. He said the car was doing about 80 kph and he was knocked over and landed on the pavement. There were differences between the version written by the attending police officer and what was recorded by the police officer as to what Gary actually said.

The Judge concluded that he did not think there were any real inconsistencies between Gary’s evidence and the different accounts Gary had given to different people.

The Judge said that it is appropriate to be cautious about Gary’s evidence in a matter of this nature, but the one piece of evidence which does support his story is the evidence of his injuries.  He went on the say:

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Judge McGill

"… he undoubtedly suffered some injury, fractures to each of the feet, worse in the case of the right foot, and in circumstances where he was wearing something on his feet, some force would necessarily have been involved."

Contributory negligence

The Judge then looked to the issue of contributory negligence.

What is contributory negligence?

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Contributory negligence

The Nominal Defendant argued that Gary’s damages should be reduced because he was drunk at the time of the accident.

Gary was able to argue that his intoxication did not contribute to the accident.  Further, it did not change the fact that the driver of the unidentified vehicle failed to exercise reasonable care.

The Judge did not accept that Gary’s intoxication contributed to the accident.  

He said:

gavel

Judge McGill

"… the lack of a proper lookout on the part of the driver of the unidentified vehicle obviously had nothing to do with the intoxication or otherwise of the plaintiff (Gary).”

The judge went on to say that:

gavel

Judge McGill

"...if the circumstances were different, he would have found there was contributory negligence on the part of the plaintiff, essentially in also failing to keep a proper lookout for the approach of a vehicle and failing to attempt to get out of the way when it appeared not to be slowing down or stopping to avoid him.  That would give rise to an issue about apportionment.  If there was contributory negligence because of the Plaintiff’s intoxication, I would nevertheless apportion the bulk of the responsibility for the collision to the driver of the unidentified vehicle, and only 20% to the plaintiff.”


Gary was awarded $124,934.80.

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  • check
    Once You Have A More Concrete View Of What Your Claim Is Worth You Will Have Eliminated All Of The Doubt Of Not Knowing What To Do Next.
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    Applies the law of negligence to your unique situation and informs you of your legal rights

But things could have been very different for Gary if he settled his case early. 

Insurers are suspicious by nature.  They think all injured people that make a claim are either exaggerating their symptoms/injuries or are “a fraud”.

Part of the claims process requires parties to attend a settlement conference (meeting) and actively participate in an attempt to resolve the claim. This has to take place before proceedings can be started in a Court.

It is an unfortunate reality that insurers often treat these conferences as a means of trying to get you to settle your case cheaply. They do that by offering a relatively low amount. 

They hope that you are so tired of the claim (in having to attend all of the relevant medical examinations and provide information etc.) and are so tired of the delays (which they have largely contributed to) that you will be more inclined to settle your case for an amount less than you should.

Essentially, they try to take advantage of your difficult predicament.

In Gary’s case, both parties participated in a settlement conference.  The insurer made an offer to settle Gary’s claim in the sum of $25,000.  Gary’s Solicitor made an offer in the sum of $60,000.00.  Gary’s Solicitors recommended not settling his case for $25,000.00. 

The table below shows that the average amount of money received by an injured pedestrian is $118,000.00.  This is compared to the average amount received by a motor vehicle passenger which is $66,000.00.  It's clear just how low the Nominal Defendants offer really was. 

As a result of the insurers actions, Gary’s Solicitors commenced proceedings in the District Court and his matter proceeded to a trial.  Prior to the trial, Gary’s Solicitors made another attempt to resolve his claim and made an offer of $50,000.00 to which the insurer again did not accept.

This tactic taken by the insurer, caused both parties to incur significant costs in proceeding to a trial.  They did not actively participate at any stage to try and settle Gary’s claim for a reasonable sum.

At the end of the trial, Gary was awarded $124,934.80.

Because the Judge awarded Gary more than the offer made by the insurer and even more than the offer made by Gary’s Solicitors, the insurer was penalised.  Their tactics did not work and in fact, they were ordered to pay a considerable amount more towards Gary’s legal fees.

This is an example of just one of the tactics taken by insurers to try and take advantage of an injured person.

It pays to be aware and seek the right advice. 

* 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.