Wolgast v Connolly’s News & Anor [2008] QCS 97

Wolgast was injured in a car accident on 19 February 2005; his vehicle collided head on with a vehicle being driven by an employee of Connolly’s News. The Defendants admitted liability but disputed the extent of the injuries and the loss and damage which Wolgast claimed as a result of the accident. At the time of the event he was working as a labourer.
 
Wolgast had suffered multiple injuries and claimed he had suffered a bilateral shoulder injury, a specific phobia of driving, and an injury to the cervical spine and a wedge fracture to the thoracic spine. 
 
Wolgast had complained to the medical experts that he was experiencing neck pain and mid back pain on a daily basis which was aggravated by day to day activities. He stated that he had difficulty turning his head and had installed “blind spot” mirrors into his car. On the basis of this history they considered that he was suffering from reduced movement and would no longer be able to maintain labouring employment.
 
The second Defendant, Allianz, obtained surveillance of Wolgast which showed him to live a generally active outdoors life, he was observed to show no signs of pain or distress and his movement was uninhibited.  Specifically he was observed to have no difficulty in turning his head to reverse his car.
 
As a result of viewing the surveillance, the medical experts provided updated medical reports shortly prior to trial which indicated that Wolgast did not appear to be any way impaired as a result of the cervical injury.
 
Fryberg J noted “disturbing inconsistencies in the plaintiff’s position” (p8). Justice Fryberg determined
 
“I am satisfied that Mr Wolgast exaggerated the extent of his limitations, both in his evidence and to the professional people whom he saw. However I accept that his neck injury has left him with a 5% disability on a whole person basis and that repetitive lifting of weights in excess of 15-20 kg would induce pain in his neck.”
 
Nevertheless Wolgast had suffered a compensable injury and was awarded $277,805.07 and costs to be assessed. 
 
This case is of note as not only does it provide an assessment of quantum under the Civil Liability Act but it also reflects the benefit of obtaining surveillance. In this case had the Defendant’s not had the surveillance, then Wolgast’s damages for both pain and suffering and more importantly economic loss would have been significantly greater.   The surveillance demonstrated that Wolgast was exaggerating the extent of his claim which ultimately impacted on his credit but also the expert medical evidence as to the level of disability that he was suffering from.
 
As an aside the Honourable Justice Fryberg commented that he watched a four hour DVD and most of his time was wasted, he considered that a 30minute edited extract would have been just as helpful. Perhaps this should be noted by those who intend to use surveillance material in the future.

Posted: Mon, 07 Apr 2008 11:23:23 +1000 By: Monica
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