Soft Tissue Injury Claim WA: $112K Payout for Whiplash Injury – A Comprehensive Case Study and Guide

How much compensation for a soft tissue injury claim with whiplash and neck pain in Western Australia? $112k  is given to Injured Passenger X for soft tissue injuries, including whiplash-associated disorder, exacerbation of pre-existing depression, and ongoing neck pain and headaches, here is everything you need to know about the case.

Introduction to the Soft Tissue Injury Claim

[2016] WADC 164 is a significant personal injury lawsuit in Western Australia that highlights key aspects of assessing damages for soft tissue injuries sustained in motor vehicle accidents, particularly when symptoms persist long-term. The case provides valuable insights into how courts evaluate ongoing impairment and award compensation in such circumstances.

Background to Injured Passenger X’s Soft Tissue Injury Compensation Claim

This is a motor vehicle injury claim arising from a car accident. The plaintiff sought compensation under the Motor Vehicle (Third Party Insurance) Act 1943 (WA).

Injured Passenger X, the plaintiff, was a 41-year-old childcare worker at the time of the accident in May 2013. She had a history of asthma, depression, and intermittent lower back pain but was otherwise active and employed full-time. Prior to the accident, Injured Passenger X was able to work full-time, engage in social activities, and perform household duties without significant limitations from her pre-existing conditions. Notably, she managed her depression with antidepressant medication prescribed by her general practitioner, without seeking treatment from a psychologist or psychiatrist.

Injured Passenger X’s Personal Injury from Car Accident

The plaintiff sustained:

• Soft tissue injury to her neck (whiplash)
• Aggravation of pre-existing lower back pain, which later returned to its pre-accident level
• Exacerbation of pre-existing depression, which contributed to a poor prognosis for recovery
• Ongoing neck pain and headaches

Circumstances of Injured Passenger X’s Soft Tissue Injury Car Accident Claim

On May 25, 2013, Injured Passenger X was a passenger in a car traveling north on South West Highway in Armadale, Western Australia. The defendant, At-Fault Driver Y, driving eastward on Fourth Road, collided with Injured Passenger X’s vehicle at the intersection of Fourth Road and South West Highway. The impact was on the passenger side where Injured Passenger X was seated, causing her to be thrust forward and sideways, then backwards. The collision was of sufficient force to push Injured Passenger X’s vehicle across to the other side of the road.

Main Issues Disputed in Injured Passenger X’s Car Accident Soft Tissue Injury Compensation Claim

• The extent and duration of the plaintiff’s injuries
• The impact of injuries on the plaintiff’s earning capacity
• The need for ongoing care and assistance
• The appropriate level of damages for non-pecuniary loss

Key Evidence Considered in Securing Injured Passenger X’s Compensation for Soft Tissue Injury Settlement

Medical Evidence

Dr. Fairhurst (GP): Diagnosed whiplash-associated disorder affecting the cervical and lumbar spine. He noted ongoing limitations in daily activities and recommended that Injured Passenger X could benefit from physiotherapy and psychological treatment.

Dr. Porteous (Occupational Physician): Observed restricted neck movement and discomfort. He acknowledged the temporal association between the accident and the symptoms and suggested that while Injured Passenger X could perform her work, her injuries made tasks like lifting more difficult.

Mr. McLaren (Orthopaedic Surgeon): Confirmed ongoing soft tissue injury to the neck with a poor prognosis due to pre-existing depression. He recommended a self-managed exercise program to help alleviate symptoms and noted that her back pain had returned to pre-accident levels by 2016. The judge preferred Mr. McLaren’s more recent medical opinion over Dr. Porteous’ earlier assessment due to its proximity to the trial and consistency with Injured Passenger X’s ongoing symptoms.

Dr. Bowden (GP): Initially diagnosed soft tissue injuries but later opined that Injured Passenger X had no ongoing sequelae from the accident. However, the judge rejected Dr. Bowden’s opinion due to inconsistencies with the other medical evidence, particularly with Injured Passenger X’s ongoing symptoms, and the lack of cross-examination on key points raised in his later assessments.

Plaintiff’s Testimony

Injured Passenger X reported persistent neck pain, headaches, and difficulty with household tasks. She described a significant reduction in social and recreational activities and the need to take time off work due to pain. The judge found that Injured Passenger X did not exaggerate her symptoms or their impact on her daily life.

Witness Testimony

Injured Passenger X’s Son (plaintiff’s son): Corroborated increased need for household assistance post-accident and observed changes in his mother’s ability to engage in activities.

Injured Passenger X’s Colleague (colleague): Described Injured Passenger X’s work performance decline after the accident, noting increased absenteeism and difficulty with physical tasks. The judge considered the credibility of these witnesses and found their testimonies consistent and reliable.

Employment Records: Showed increased absences and use of sick leave post-accident, though specific details were limited due to incomplete records, which impacted the court’s ability to fully quantify her loss.

Additional Medical Treatment Details:

The court favored Mr. McLaren’s recommendation for a self-managed exercise program under the guidance of a physiotherapist, with an estimated cost of $2,000. This is expected to help strengthen Injured Passenger X’s spine and neck muscles.

Psychological treatment was also recommended to help manage the exacerbation of her pre-existing depression. Dr. Fairhurst suggested 10 sessions with a clinical psychologist, at a total estimated cost of $1,500. Both treatments were considered necessary to improve her symptoms and reduce her reliance on pain medication.

Findings by the District Court of Western Australia

The court accepted that:

• The plaintiff sustained a soft tissue injury to her neck caused by the accident.
• Symptoms persisted beyond the typical recovery period of 12-18 months.
• The injury exacerbated the plaintiff’s pre-existing depression, contributing to a poor prognosis for recovery.
• The plaintiff experienced a diminution in earning capacity and competitiveness in the job market.
• The plaintiff required ongoing assistance with household tasks.

Judge Gething stated: “Injured Passenger X falls into the category of people who do not make a full recovery within 12 – 18 months of sustaining a soft tissue injury to the neck in a car accident, and thus it is likely that her current symptoms will persist in the medium to long term.”

Soft Tissue Injury Compensation Amount

The court awarded total damages of $112,024, broken down as follows:

• Past special damages: $1,000
• Future medical treatment: $4,000
• Past economic loss: $7,868
• Future economic loss: $20,000
• Past gratuitous services: $23,614 (based on assistance provided by Injured Passenger X’s children and mother, including grocery shopping, household chores, and other daily tasks)
• Future gratuitous services: $15,142
• Non-pecuniary loss: $40,400

Legal Principles Applied in Considering Settlement for Soft Tissue Injury for Injured Passenger X

Causation

The court applied the “but for” test under the Civil Liability Act 2002 (WA) to establish that the accident caused the plaintiff’s injuries.

Assessment of damages

The court followed the principles in Sharman v Evans [1977] HCA 8 for assessing future medical expenses, balancing health benefits against costs.

Loss of earning capacity

The court applied principles from Medlin v State Government Insurance Commission [1995] HCA 5, considering both past losses and future impairment of earning capacity. The judge considered the plaintiff’s loss of competitiveness in the job market as part of this assessment.

Gratuitous services

The court applied section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) in assessing damages for care provided by family members.

Non-pecuniary loss

The court followed the statutory framework in section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA), assessing the plaintiff’s loss as a proportion of a “most extreme case.” The judge elaborated that the severity of Injured Passenger X’s ongoing symptoms and their impact on her life justified setting the non-pecuniary loss at 15% of a “most extreme case.”

Judge Gething explained the approach to non-pecuniary loss:

“The only criterion for the apportionment prescribed is the comparison of the severity of the non-economic loss, as disclosed by the evidence, suffered by the injured person in the case before the judge and that suffered in ‘a most extreme case’ – the judge must then assign the case as found somewhere along the resulting scale.”

Implications and Significance in Soft Tissue Injury Insurance Settlement

This case is significant for several reasons:

• It reinforces the importance of considering long-term prognosis in soft tissue injury cases, especially when symptoms persist beyond the typical recovery period.
• The decision highlights the impact of pre-existing conditions (like depression) on injury prognosis and damages assessment.
• It demonstrates how courts may assess loss of earning capacity even when a plaintiff continues to work full-time post-accident.
• The case provides guidance on applying statutory frameworks for assessing non-pecuniary loss in motor vehicle accident cases in Western Australia.
• It illustrates the court’s approach to valuing gratuitous care provided by family members, particularly when living arrangements change post-accident.
• The judgment emphasizes the importance of comprehensive medical evidence and witness testimony in establishing the ongoing impact of injuries on daily life and work capacity.

Conclusion

This exemplifies the complex nature of assessing damages in personal injury cases, especially those involving persistent soft tissue injuries. The case underscores the importance of comprehensive medical evidence, witness testimony, and detailed analysis of the plaintiff’s pre- and post-accident circumstances. It serves as a valuable reference for legal practitioners in Western Australia dealing with motor vehicle injury claims, particularly in cases where injuries result in long-term impairment despite the plaintiff’s continued employment.

The decision also highlights the need for courts to carefully consider the individual circumstances of each case, including the impact of pre-existing conditions and the long-term prognosis for recovery. Such considerations are critical in the calculation of general damages and in determining the appropriate compensation for common types of soft tissue injuries. Given the common causes of soft tissue injuries, particularly in road traffic accident claims, this case offers key insights into how soft tissue injuries can result in significant ongoing challenges for plaintiffs.

For those involved in soft tissue injury insurance claims, [2016] WADC 164 provides important lessons on how to effectively assess your claim and ensure that the injury that was caused by the accident is accurately represented. The case also illustrates the various examples of soft tissue injuries and the importance of understanding how these injuries affect the soft tissues in the body. This decision may influence future cases, leading to more nuanced assessments of damages, particularly in claims involving persistent soft tissue injuries and complex medical histories. Understanding these nuances can be crucial in determining whether you are able to claim compensation effectively.

Resources and References

• District Court of WA Case Decision: https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision/3ffef34d-d951-6160-4825-8079000cbbc8
• Motor Vehicle (Third Party Insurance) Act 1943 (WA) – Government of WA Legislation:
  Understand the key legislation governing motor vehicle accidents and insurance claims in Western Australia.
• Civil Liability Act 2002 (WA) – Government of WA Legislation:
  Essential legal framework used in the calculation of damages and non-pecuniary losses in injury claims.
• WA Department of Health – Injury Prevention – Healthy WA:
  Provides information on injury prevention and soft tissue injuries, which is especially relevant in understanding health impacts post-accident.
• Disability Support Information – Department of Communities WA:
  Learn about support options for those with long-term impairments due to injuries, relevant for assessing future care needs.
• Australian Psychological Society – Mental Health Resources – Australian Government Health Department:
  Important insights into mental health management and services that can assist with recovery from exacerbated pre-existing conditions.