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* 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.

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.

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.

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.

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

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:

The Judge then looked to the issue of 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:

The judge went on to say that:

Gary was awarded $124,934.80.

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.