On 12 August 2014, Louisa Dow was driving home from work. Her vehicle was stationary in a slip lane for traffic turning when Mahmoud Elbarbary’s vehicle collided with the rear of her vehicle. The impact was not a major impact and Ms Dow sustained a whiplash injury.
Ms Dow commenced proceedings against Mr Elbarbary in the Supreme Court of the Australian Capital Territory, in negligence and claimed damages. Liability for the accident was admitted and the matter proceeded to a hearing as to damages only.
Ms Dow claimed that she suffered musculoligamentous injury, anxiety about traveling in cars, and other psychological sequelae of the accident. Mr Elbarbary argued that Ms Dow recovered within, at most, six months of the accident. Ms Dow’s credibility was put in issue, and the evidence established that Ms Dow was involved in four previous motor vehicle accidents.
Her Honour Murrell CJ found that Ms Dow genuinely experiences the disabilities of which she complained, but also that she was unduly focused on her injuries and their continuing impact on her life and that the preoccupation was not assisting her recovery.
Chief Justice Murrell found that “there was an objective basis for the plaintiff to experience some pain and to experience flare-ups of pain from time to time. However, the level of the pain that she has experienced is not explicable on an objective physical basis. Rather, she is a psychologically fragile individual who has been over-medicalised and suffers from underlying generalised anxiety and a specific anxiety about motor vehicles. The stressors to which she has been subjected over the past few years have greatly amplified her experience of pain”.
Ultimately, damages were assessed in the total sum of $241,172, including $70,000 for non-economic loss.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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