Court awards crash victim $71,000

A MARYBOROUGH woman injured in a head-on collision has won a damages claim after lawyers for the other driver's insurers unsuccessfully argued the crash was “inevitable” due to a pre-existing medical condition.

Trilby Misso managing lawyer Jaswant Sandhu said the Brisbane District Court case highlighted how car crash victims seeking compensation can fail if the “at-fault driver” has an incapacitating medical problem.

Michelle Foster was driving to work on the northern outskirts of Maryborough on December 1, 2006, when a vehicle driven by Donald Claybourn veered to the wrong side of the road and they collided head-on.

Ms Foster, then 24, suffered injuries to her feet, back and chest as a result of the crash. She was awarded $71,300 in damages by Judge Philip Robin.

Claybourn's insurer, Suncorp Metway, had denied liability because it claimed the smash was caused by Claybourn suffering a temporary lobe seizure.

But, Ms Sandhu said, Ms Foster's claim succeeded after it was found Claybourn had been seen swerving left to right across the road for a period before the accident.

“Judge Robin found Mr Claybourn had some voluntary control of the vehicle leading up to the accident and therefore liability was established,” she said.

“But this case highlights the little known fact that in a motor accident like this there can be no claim for damages if the person causing the accident can't be proven negligent.

“If somebody suffers an incapacitating medical condition of which they have no proven knowledge of and they lose control of the vehicle causing personal injury to another, the victim may not be able to establish negligence and therefore receive no compensation.”

Ms Sandhu said her firm had other clients seeking personal injury claims which were facing an “inevitable accident defence”.

“If the defence is supported by the court they wouldn't be entitled to recover general damages for pain and suffering, they wouldn't be entitled to recover their wage loss or medical treatment costs or their future care requirements.”

Ms Sandhu said the smash had a tragic aftermath as Claybourn died aged 72 on March 29, 2007, after developing a malignant brain tumour.

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