Outrageous defense tactic by Suncorp: suck up your brain injury for driving a rust bucket

keep-calm-and-suck-it-up-princess-10

Workcover and the TAC are as good as identical , they are both maximally litigious unethical Government agencies who victimise those involved in road accidents or work injuries through various processes of bullying, incompetence, stalling, unnecessary administrative processes, bureaucracy and systemic corrupt practices.

Take for example, the following legal TAC case, whereby the insurer (Suncorp, aka GIO in the workers compensation world) tried to deny liability for a car accident victim by basically stating he self-inflicted his brain injury because he drove a “rust bucket” – nice one!

Outrageous defense tactic by Suncorp: suck up your brain injury for driving a rust bucket

keep-calm-and-suck-it-up-princess-10

According to Suncorp (aka GIO), an unfortunate German backpacker who stayed close to his broken down van after it rolled to a stop at night, in the middle of a busy Highway, should himself be responsible for serious head injuries that came when a freight truck smashed into it minutes later. Suncorp (GIO) basically told him to suck up his self-inflicted brain injury – self-inflicted because he drove a “rust bucket” – nice one!

Suncorp – the CTP insurer for the truck – claimed J (the injured German)  had taken his life into his own hands by “knowingly travelling” in a Toyota Hiace van “which was in a dangerously unreliable condition”.

His fellow travellers E and C, also German tourists with little English language, had apparently paid $3,400 for the van in Sydney. J, the injured German, had joined them for the trip north.

The court heard that  they called out a mechanic on 2 occasions to get moving. The first time, at Rainbow Beach where local auto-man pointed to the starter motor: “It needs a new one but I can try a fix if you don’t want the expense of the new part”.

However, taking the cheaper option set the tourists up for Suncorp’s contention that the trio recklessly defied the risk of a sudden mid-highway engine stall that could result in a catastrophic collision from following traffic, as actually occurred.

A  but far-fetched and utterly disgusting  and ultimately, flawed argument indeed. The known problem with the Hiace was that it was sometimes difficult to start – not that it conked out unpredictably – and mechanical investigation couldn’t pinpoint the defect that had stalled it.

Second, the insurer Suncorp (GIO) claimed J (the injured German) should have deserted the broken down van immediately after it stopped; or should have attempted to push it off the road. By not doing so, he bore the greatest share of responsibility for the collision and therefore, his injuries.

By the way, there was no evidence as to exactly where J was positioned at the time of the collision or what he was doing. He couldn’t remember, his companion E had left for home weeks earlier and C who was presumably uninjured in the smash, was never called/contacted. There were three eyewitnesses, but none could say where he was or even if he had been the driver.

The truck driver I was ultimately found responsible for not paying sufficient regard to potential hazards on the roadway ahead, mainly because he allowed himself to be distracted by a 4WD, stopped on the opposite side of the highway with headlights blazing.

And despite evidence from a 4WD driver P – a truck driver of 25 years’ experience – that he had pulled over to shout to the Germans a warning to push the van clear, the court accepted the prudent course for J would have been to quickly abandon the vehicle.

For his failure to do so, J was held 50% responsible for the resulting collision and his injuries.

His loss for the medical and economic consequences – agreed by the insurer at $800k – was therefore halved by the court, to $400k.

 

You can read the full text of this case here: Habig v McCrae & Ors [2013] QSC 335 Brisbane Henry J 6/12/2013

Help motor accident victims get fair, timely compensation through the TAC

Sign the petition

To: The Hon Gordon Rich-Phillips MLC

We demand that the minister for TAC, Gordon Rich-Phillips MLC investigates thoroughly and fairly the compensation system for motor vehicle accident victims in Victoria and the impact the delayed payment of compensation is having on these victims of road accidents.  We further demand that the TAC makes reforms to its legislation so that injured motorists are not having to wait unreasonable periods of time for compensation and that fair compensation is paid to injured motorists under the TAC insurance scheme in Victoria.

Currently, there is in excess of a 13 year wait for compensation for motor accident victims with severe injuries. The system is set up so that the at-fault party of accidents is indemnified by the TAC, meanwhile, the road victims are forced into poverty as many are unable to work or receive centrelink support, whilst they fight for their just entitlements to compensation through the TAC.

Many injured motorists have lost their life savings, their companies, their families, their homes, their dignity, their respect, and their self esteem through this process.

People who are in chronic pain, who have mental health issues as a direct result of the accidents are forced to fight for their entitlements, and the injustice doesn’t end there. The TAC appeal virtually all reasonable medical costs making injured victims have to fight even harder for what they are entitled to through the courts, or lengthy administrative processes.  The out of pocket expenses endured by the motor accident victims during this process means that many give up the fight and accept a fraction of their entitlements due to be forced into extreme financial hardship.

These people are a vulnerable, voiceless segment of our society and nobody is assisting them in their plight.

Victims are further victimised by the TAC’s agressive legal approach to fighting and appealing all claims in court in order to save compensation paid to road victims. The legislation that the TAC operates on makes it impossible for motor accident victims to fight the system because every effort has been made by the TAC to protect its profits and minimise its liability to injured motorists. Many motor accident victims end up depressed, and worse, suicidal because of the treatment the TAC after a motor vehicle accident. The TAC does not publish suicide statistics of its injured motorists and they have thus far been unavailable through freedom of Information.

The complaints handling system is even worse, with frustrated, injured, and fed up motorists having no independent avenue to raise issues.

The system is NOT fair. The system needs to change. Injured motorists need to be better represented and fairly compensated through the TAC for their injuries.

Why is this important?

There are many thousands of injured motorists in Victoria suffering financially, socially, mentally and physically from the abuse the TAC inflicts upon its injured road users trying to get their entitlements to compensation. These people are already victims of road trauma, and the ongoing hardship in dealing with the TAC and its unreasonable processes means that the victims of road trauma are again victimised by this process.

The TAC claim to help injured motorists, but as a for profit corporation who is concerned with profit margins, they have a conflict of interest in doing so.

The TAC needs to be reformed so that injured motorists do not have to further suffer while trying to rebuild their lives post accident.

Sign the petition here: http://www.communityrun.org/petitions/help-motor-accident-victims-towards



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13 Responses to “Outrageous defense tactic by Suncorp: suck up your brain injury for driving a rust bucket”

  1. Im probably not posting this in the right place but can anyone tell me what happens when you go to conciliation in Vic. Ive found all the info on having a rejected claim go to conciliation, got the forms and so on so I understand the process. Would appreciate any comments from anyone whose been through conciliation about what happens on the day. Does conciliation ever result in you claim getting accepted? or is it all a smoke screen and time wasting exercise where the claims manager turns up and sticks to their guns and wont budge on their decision and you end up having to take it to court anyway? What involvement does the employer have in the conciliation? If the decision to reject the claim is still remains after conciliation how long does it take to get my claim heard in the courts and how hard does the insurer or employer fight it in court? Any info or peoples own experience in the Vic conciliation process would be appreciated.

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    • Also how does the person who runs the conciliation decide who’s medical information is right?
      Part of my issue is that the insurer is saying that I dont have a diagnosable injury based on the IME report. When the IME was asking questions about my background and family I told the IME that my husband had passed away 2 years ago and so as a result has dismissed everything else and told the insurer that I only had a grief reaction to my husbands death and so nothing Im going through is work related, which is bullshit. It was as if the IME had found something else to latch on to, but it has no bearing on my current situation. When my beloved husband of 17 years passed away suddenly 2 years ago, I only had 2 weeks off work at the time as I felt keeping up a normal routine was the best thing I could do at the time for our teenage children (and myself). My husband passing has had no impact on my work or my ability to perform my job or my ability to functionally live my life and I coped well with what happened. My own doctors report confirm this. But now it seems that the insurers has something else to attribute my injury (or lack of) to, so how on earth at conciliation does this sort of medical cause issue get dealt with?

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      • Contact Workcover Assist they will help you at conciliation @ not happy Jan.

        http://www.workcoverassist.vic.gov.au/

        Conciliation can be good or a waste of time but you have to go through the process.

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      • @Not Happy Jan,

        That’s what the the bastards do – it’s the IME’s standard operating procedure!

        From my experience, conciliation works as follows:

        The applicant (usually the injured worker) speaks first and states what the facts are from their point of view. If their has been a WPI, then the applicant’s lawyer outlines the compensation dollars that should be paid to settle the claim and the evidence they have to back it up.

        The defendant (usually the employer/insurer) states the evidence that they have to support that there is no compensable injury here. They might add an offer of a few thousand to help the “applicant” get on with their life and close the claim.

        That’s about it. If the offer is accepted, it’s all over except for some paperwork. If not, then a further conciliation conference could be scheduled to allow new evidence (more IME reports – I’m up to my 16th or 17th IME report)) to be gathered.

        And on & on it goes. I don’t believe the mediator or conciliator will consider any of the evidence, that would happen at a hearing in front of the Commission.

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    • Not Happy Jan I only gone to conciliation to dispute the refusal of the claims agent to pay for a treatement so mines not best example of what happens at concilication when its about a rejected workcover claim.
      When I went it was total waste of time. The lady from the insurers has no idea why she was there and did not appear to have even read the file and needed to ask the conciliator what it was that they were refusing – then maintained her position that they would continue to stick to their decision. Then it was going to be referred to a medical panel which was a joke because the cost of the treatment was a few hundred bucks at best, it was costing them more digging their heels in. In the end about 2 weeks later agent said they reviewed the info and would pay for the treatment.

      Claims manager tried to blame it on my doctor saying if he had provided better info to begin with then the treatement would have been approved right from the start. Claim manager had played her silly little game and no doubts went off to aggravate someone else by doing the same thing.
      I don’t know how often the claims agents would change their decisions conciliation and agree to accept a claim they have previously rejected. Others on here might know.
      I’m so sorry to hear about the loss of your husband Not Happy Jan.

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    • @Not Happy Jan
      If the matter is not resolved at conciliation and you have the Certificate of Genuine Dispute and have lodged your application in the Magistrates Court, you are currently looking at around 18 months until your matter will be listed to be heard. Its a very long wait to get a decision through the courts. So you have to also consider how you will survive financially during that time.

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  2. @Not happy Jan your story is very similar to mine. I can tell you now it probably wont be changed at conciliation and you will need to take it all the way too court if you are strong enough. My conciliation the employers representative agreed I was bullied and even then it was not overturned. If you saw the same IME as me it will get worse as you get closer to a court date you will have to see him again and he will say you are a passive aggressive and that you bullied your boss. They will most likely offer you three months pay at conciliation and medical expenses. If you are still employed you will probably be sacked and then you can take them to FWA for unfair dismissal.

    My advice is;
    1. Get a good psychiatrist to treat you for here on.
    2. Get a good psychologist to treat you as well you will need the support.
    3. Get a decent lawyer, ring John Typalodos from Shine direct (its worth a try).
    4. Ring Workcover Assist and get them to represent you.

    If you take it to court you will get payment for about six months and medicals if you are lucky but in the long run it is not worth your health.

    I’m sorry but that’s the way it goes now and I don’t think it will change for anyone. They get away with it.

    Good luck.

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  3. thanks for all the info guys.
    From what you’re all saying is conciliation is a total waste of time and the only way to get the decision over turned is in court. Why do they make conciliation compulsory, it seems its a step added to the whole process to do nothing more than drag and delay any decision or different outcome from that the insurer has already made. How is anyone supposed to survive with no income for yonks until they can get to court? Or is that the whole idea of it!!

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  4. That’s the whole idea of it they starve you out. Stall, starve, settle.

    The whole idea of conciliation is to get the certificate of genuine dispute, without that you cannot take it to court.

    At conciliation it will be about why it was rejected (section 32.2a I assume management action) they will need to prove that it was happening and you need to prove it wasn’t.

    Then at court all of your medical history will be dragged into the court and they will go over it with a fine tooth comb, so be prepared it gets very invasive.

    Seriously Workcover Assist were fantastic and they really did their work for me and represented me well. They spoke for me and did not take any rubbish. Mine should have been overturned there and the mediator asked the insurance company to overturn it but the employer wouldn’t have a bar of it. They were very nasty and vindictive. He should have just overturned it.

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    • @Pugsley i don’t fully understand why did you say they were fantastic? your kidding .. right?

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      HuntingWorkcover January 16, 2014 at 9:09 am
      • I think Pugsley meant that she had good luck with Workcover Assist although many other injured workers have expressed a negative experience.
        The problem is the insurer will send a representative (a stupid idiot anyways) and they will tell rubbish all the way, they will make a silly offer then you refuse it so you get a certificate to go to Court.
        It’s a standard procedure by the insurer because when you take them to the Court they will bribe your Lawyer to have an arrangement which not always is what you’re entitled to.

        In my case the insurer send an Indian national at the conciliation, you can guess the bloke couldn’t speak proper English also he just read through the scripts.

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        • I had some good advice from WorkCover Assist. I didn’t use them to represent me, but I was given good sound advice – I used them for a “second opinion”.

          I know there have been reports of workcover lawyers given incentives to settle claims quickly and at a reasonable cost. And, we all know how corrupt the whole workcover process is and the lies, misquotes, the selective editing, the vague comment which later morphed into a retrospective absolute diagnosis etc.

          The bottomline is these bastard insurers have a bottomless pit of cash to spend and will do anything to try to force us to go away. There will be points along the way where we all will be given opportunities to exist the system.

          Always the offer will be way below what we believe we “deserve”. We can choose to accept or keep fighting on.

          The longer we keep fighting the more our mental health deteriorates and our costs keep escalating. The longer the fight, legal fees will eat up a significant chunk of any potential payout. If we lose the battle, most of us will be forced into bankruptcy.

          We are deprived of choice and control throughout the Workcover nightmare, but we should try to think pragmatically and not emotionally when those “opportunities” to get out, present themselves.

          There is no right or wrong decision, we just have to live with our decisions.

          How much do we want to be free versus obtaining justice & a moral victory.

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