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Personal injury claims and pre-existing conditions

Suzanne Sharwood

09 Jul 2019

Topics

  • Personal Injury

If you’ve been in an accident and have suffered an injury, your claim can be complicated by pre-existing conditions. In this article Suzanne Sharwood looks at a recent case in the ACT Magistrates Court where the magistrate found that medical evidence was insufficient to support the argument that the plaintiff would have developed symptoms of pre-existing degenerative changes even if the accident did not occur.

Pre-existing conditions

In personal injury claims, it’s common for claimants to suffer symptoms of a pre-existing condition that they may not have realised they had. Or perhaps they didn’t have any symptoms of the pre-existing condition before the accident. In these circumstances, the respondent’s insurer may seek to rely on a medical report that states that the injuries suffered by the claimant would have resolved within a short period after the accident, and that any ongoing symptoms are attributable to the pre-existing condition.

Antonijevic v Malhi [2019] ACTMA 15

The case of Antonijevic v Malhi highlighted that, before any conclusions about a pre-existing condition can be made, it’s necessary to provide specific medical evidence about the course that the pre-existing condition would have taken had the accident not occurred.

More specifically, as noted in a similar case, the evidence must establish ‘with some reasonable precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be’.

Only when this evidence about a pre-existing condition is provided can determinations be made about any impact on the amount of damages to be awarded to the claimant.

The claim

In Antonijevic v Malhi, the plaintiff alleged injury as a result of falling from a moving taxi. It was accepted that he suffered from various pre-existing conditions, including degenerative changes in his spine. The defendant’s medical experts said that the plaintiff’s injuries would have resolved within six months, and that any ongoing physical restrictions and treatment needs were attributable to the pre-existing degenerative changes. However, the plaintiff argued – and it was confirmed by the medical records – that he had no relevant symptoms prior to the accident.

The magistrate didn’t accept the defendant’s argument in relation to the future course of the plaintiff’s pre-existing degenerative changes, as the medical evidence was insufficient to support it.

How can we help?

In any situation where you’ve been injured, and how this may relate to any pre-existing condition you have, you should seek legal advice about the options available to you. Our Personal Injury team can advise you about any potential claim for compensation you may have. To find out more contact us on 02 6285 8000 or by email.