Assessing ISV’s: the Queensland experience. Trenton Schreurs
Agenda • Our similarities; • Our differences; • Essential Queensland cases concerning the assessment of ISV’s; • 15 years on – what have Queenslanders learned?
Similarities between Schemes • A great deal of similarity, as the SA CLR is in part based on the Qld CLR, though importantly: - – Calculation of multiple injuries and maximum dominant ISV inadequate identical (the uplift section); – Consequential mental harm (SA) and adverse psychological reaction (Qld) being treated as features of injuries; – The Injury Categories themselves.
Differences between Schemes • Section 52 / 56A SA CLA – thresholds ; • Qld CLR 9 vs. SA CLR 4(1)(b): - – “ Court may have regard to other matters” vs. “ the Court must… have regard to the ISV’s given to cases involving the same or similar injuries.” • GEPIC vs. PIRS assessment of psychiatric injury.
Essential Qld Cases on ISV’s • Allwood v Wilson & Anor [2011] QSC 180; • Carroll v Coomber & Anor [2006] QDC 146; • Clark v Hall and Anor [2006] QSC 274.
Allwood v Wilson & Anor , per McMeekin J • Liability admitted, Plaintiff suffered a left acetabular column fracture, lower back pain and a right foot compound fracture; • “Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards, sight must not be lost of the overriding purpose of the ISVs prescribed – to reflect the level of adverse impact of the injury on the injured person.” [21]
Allwood v Wilson & Anor , per McMeekin J • Dominant injury to the hip, IC 127 [11-25] (assessed at between 14% to 10-20%); • Right foot injury, 0% IC 149 [4-8]; • Back injury, 7% IC 93 [0-5]; • Multiple injuries justify an uplift, including the multiple surgeries, middle-age of the Plaintiff and employment being markedly affected; • An ISV of 30 (20% uplift) was assessed, $45,000.00.
Carroll v Coomber & Anor, per McGill J • Liability admitted, Plaintiff suffered seatbelt bruising, a whiplash injury to the neck, a lower back injury, right knee and left shoulder injuries and a psychological injury; • Bruising, not assessed, IC 39 [0-10]; • Neck injury, not assessed, IC 89 [0-4]; • Lower back injury, 3% (Ch.18), IC 93 [5-10];
Carroll v Coomber & Anor, per McGill J • Right knee, 2%, IC 140 [0-5]; • Left shoulder, 1%, IC 98 [0-5]; • Psychological injury, PTSD / AD with anxiety, 4%, IC 12 [2-10]; • Back injury was held to be the dominant injury; • Plaintiff was young (25), and the injuries have a cumulative overlap on the Plaintiff’s employment prospects;
Carroll v Coomber & Anor, per McGill J • “Overall, in this matter there are three separate injuries which are of about the same significance, and of lasting significance…neither an ISV within the range of whatever injury is chosen as the “dominant injury”, nor that with a 25% loading, is adequate properly to deal with the spread of injuries suffered by the Plaintiff… I will allow an ISV of 18.” [47]
Carroll v Coomber & Anor, per McGill J • ISV of 18 is an 80% uplift on the dominant injury; • $22,800.00.
Clark v Hall & Anor , per White J • Liability admitted, Plaintiff suffered an open fracture of a toe on the right foot, multiple lacerations and fuel burns, and a psychiatric injury; • Psychiatric injury, 1% - 7%; • Toe, 1% - 3% - 15% (including pain);
Clark v Hall & Anor , per White J • “As can be seen, the assessment of general damages, rarely a matter of great dispute between the parties or of particular complexity at common law in this State, has been made difficult by legislative attempt to bring some consistency into this area of law of personal injury. The time involved in traversing the labyrinthine structure of the CLA and Regulation has cast a larger burden than hitherto on the medical and legal profession and the courts. It is hoped that the reduction in general damages awards will have the anticipated effect of reducing premiums and the affordability of insurance will be achieved. Otherwise it seems to be a rather vexing exercise in over prescription with nothing much to see for it.” [62]
Clark v Hall & Anor , per White J • Toe, IC 153 [4-7]; • Psychiatric, not rated; • Toe held to be the dominant injury, uplifted to 12 (±80%), $13,800.00.
What have we learned? • ISV calculation was guesswork for a number of years; • Courts took a dim view of the restriction of their assessment of common law general damages; • New areas of dispute arose (section 55 damages, paid vs. gratuitous care); • Over time the calculation of general damages became less disputed with greater judicial guidance.
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