he need to support oral evidence with documentary evidence

Published 08 Jan 2018

At Gerard Malouf and Partners we know the importance of reviewing Court Decisions. By regularly reviewing decisions we are better able to prepare our clients cases by putting into practise useful tricks used by other solicitors, or learning from the mistakes which they have made.

The recent findings of Justice Bowskill of the Queensland District Court in the matter of Kim v Liu [2017] QDC 167 is a recent case where we are able to see some errors made by a plaintiff’s lawyer that were avoidable.

In this particular case the solicitors for the plaintiff did not prepare the case sufficient for the court hearing and the judgment reinforces to the need to ensure that solicitors provide adequate documentary evidence in support of plaintiff oral evidence in motor vehicle accident claims.

The plaintiff, a 25-year-old Korean woman, was a passenger in a car which was involved in a motor vehicle accident on 22 July 2015. The insurer admitted that the driver of the vehicle had acted negligently and therefore the dispute was over how much compensation to award the plaintiff following her motor vehicle accident.

A secondary dispute in this matter, claimed by the CTP insurer, was that there was insufficient medical evidence to suggest the plaintiff had any long-standing injuries following her motor vehicle accident.

The Judge commented that there was no comments made by the plaintiff’s GP until seven days following the accident, further after this notation the plaintiff never attended upon her GP again to complain of the injuries following the accident. The plaintiff had then returned to Korea some six months after the accident where she attended upon a physiotherapist and other allied medical providers.

The Judge had the benefit of three medical experts to comment on the extent of the plaintiff’s injuries. Ultimately the Judge choosing to follow the reports produced by the CTP insurers as they supported the plaintiff’s oral testimony more than her own doctor. His honour found that the plaintiff had in fact suffered a whiplash injury and was entitled to damages for her pain and suffering as a result of her motor vehicle accident.

The major downfall of the solicitors acting for the plaintiff was that they were unable to substantiate her claim her loss of income. The solicitors for the plaintiff submitted that it was the plaintiff’s intention to return from Korea to Australia and using her nursing degree become a nurse working in Australia. However due to her injuries she was unable to do so.

The Judge commented that:-

“There is no evidence of her proficiency following the completion of her English course, there is no evidence of what level of proficiency required for such a nursing course, there was no evidence of steps taken to acquire about the availability of/or entry at TAFE or anywhere else”

Judge further commented that there was no evidence to suggest potential for additional work the plaintiff may have had if she remained in Australia, nor the difference in incomes between her Korean and potential Australian incomes. In fact there was no evidence to show that she would have in fact found any work within Australia at all.

As a result his honour found that the plaintiff did not discharge the onus of proof to convince him that she was entitled to any past or future loss of income. Therefore her compensation following her motor vehicle accident was confined to her pain and suffering as well as past and future out-of-pocket expenses.

The plaintiff was ultimately awarded not less than $10,300 with costs still to be argued. Had the solicitors for the plaintiff completed their investigations thoroughly their client would have had a very different outcome for this motor vehicle accident claim.

Queensland motor vehicle accident cases are an inherently difficult maze to wander within. At Gerard Malouf and Partners we streamline the process ensuring that you receive the best advice to maximise your compensation claim at every step of the process.

Should you require a free consultation to discuss our no-win no fee cost agreements please do not hesitate to contact one of our specialist compensation lawyers.

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