Low Impact Collision Cases

Transcription

1 Low Impact Collision Cases 23 March 2017 Tony Possingham Mitchell Chambers S

2 Low Impact Collisions It is notorious that injuries in motor vehicle accidents are not proportional to the violence of the impact. Relatively minor collisions have many times caused injury with very serious consequences, especially injury to the cervical spine. People have walked away from mangled wrecks with only a few abrasions. Persic v Koech

3 Low Impact Collisions 1. Claims for minor injuries (as classified on the Abbreviated Injury Scale, 2005 edition) made up 70.9% of finalised claims for accidents. 2. In 2015, minor injuries made up 44.5% of total payments with an average payment of $68, Spinal injuries, including whiplash claims, made up 60.4% of finalised claims. Motor Accident Insurance Commission of Queensland covering the period 1 July December 2016

4 The Minimal Impact Defence Accordingly if one accepts the general proposition that the greater the impact, the greater the likelihood of injury, then of course one would also accept that the converse is true. Murray v Nominal Defendant

5 The Minimal Impact Defence After his review of the evidence the Magistrate concluded that it was a low impact collision unlikely to cause significant injury. There appears to be little doubt that it was such a collision with very little damage to either motor vehicle. That fact is of course not conclusive of the type and severity of injuries which can be sustained. (emphasis added) Giamarelos v Motor Accident Commission

6 Expert Evidence While conceptually this is clear enough, the erratic use of judicial notice has meant that, on occasions, it substitutes as a limited form of expert evidence for the trier or fact. Expert Evidence, Law, Practice, Procedure and Advocacy, Ian Freckelton SC

7 Expert Evidence However, speed is only one factor in determining the force applied in a collision between two bodies. The other is mass. In the present case, there was apparently no evidence before the trial judge of the mass of the respondent s vehicle. In any event, none of the medical witnesses expressed an opinion that the appellant s claimed back injury could not have arisen in this accident. There was simply no evidence before the trial judge to allow her to conclude that the appellant s claimed injury was atypical for the nature of the collision. Her Honour was in error in making this finding. Kaufman v Kozac

8 Expert Evidence Matters arising out of the engineer s evidence: 1. That the research material addressed the association between low speed crashes and significant cervical injuries. It did not concern the association of soft tissue or ligamentous injuries. 2. That females were at greater risk of neck injury than males. 3. That a person sitting forward and away from the edge of the seat had a higher risk of injury. 4. That modern seats and head restraints afforded a lower injury rate than the older model vehicle (a 1992 Toyota in which the plaintiff was driving). 5. That it was possible, in the claimant s case, for her to have suffered an injury when the change in velocity speed or delta-v for her vehicle was less than the threshold of 8 km/h, conceding it s remote but possible. Simmons v Motor Accidents Insurance Board

9 Expert Evidence Whether the applicant suffered a less severe physical injury including a minor cervical injury in the context of an occult (hidden/latent) condition. Simmons v Motor Accidents Insurance Board

10 Expert Evidence The debate will no doubt continue, further research and studies undertaken and in the end result the Court will still have to determine each case on its own facts and by each trial Judge making subjective assessments on the basis of the evidence before the Court. The medical literature tendered in this case does not assist in resolving the issue one way or the other. Stein v Higgs & Anor

11 Expert Evidence However, for reasons which I have made plain, I think it is flawed logic to assume that the damage to both motor vehicles necessarily means that the plaintiff did not suffer a flexion/extension injury of some significance. Gilantzis v Transport Accident Commission

12 Expert Evidence I am satsified on the balance of probabilities on the medical evidence that the speed of collision is not a good indicator or [sic] the severity of symptoms suffered. Jerkovic v Burows

13 Expert Evidence We do not have trial by expert in this country; we have trial by judge. Armstrong v First York

14 Pre-existing condition

15 Mechanism of Impact S Tow bar S Other mechanism S Mass

16 The position of the claimant in the vehicle S Angle of Impact S Kiiver v King S Whether the plaintiff is braced or not braced for the impact Nivolovski v Holloway and other cases

17 The Design of the Vehicles Involved S Head rests S Whiplash prevention seats

18 Range of Damages S Day v Gascooke S Chajka & Chajka v Preston S Henley v Tu