It is not uncommon that people injured in accidents don’t initially realise that they have suffered injury to some body parts.
A recent decision of the Court of Appeal dealt with such a case where a person injured in a car accident on 22 July 2009 did not seek treatment for problems with his low back until at least two years later. The medical records also indicated some complaints of low back pain before the accident.
The plaintiff’s main complaints at the time of the accident and following the accident were in relation to neck pain. The judge who heard the claim found that, given the amount of time between the accident and the complaints of low back pain, the low back injury was not related to the collision.
The Plaintiff gave evidence that he had experienced low back pain from the time of the accident but had been too proud to admit he was having problems with it and did not want to lose time from work to have it looked at. The Plaintiff ultimately underwent surgery on 29 December 2011.
There was evidence from a number of experts who accepted that the plaintiff’s back problems were a result of the accident, however the judge accepted the evidence of one expert who did not agree.
Most importantly, the Plaintiff also had evidence from a number lay witnesses, ie family members and work colleagues, that he had made complaints of problems with his lower back between the time of the accident and the time when he sought medical treatment.
The Court of Appeal accepted that the Plaintiff’s evidence that he had been experiencing pain in his back since the accident noting that “sometimes an initially more painful injury (described as a ‘distracting injury’) masks, or distracts an injured person from, a second injury about which complaint is not initially made”.
The evidence of the lay witnesses was vital in this case. It meant that the Court of Appeal could accept that there were problems with the Plaintiff’s back from the time of the accident despite there being no complaints to doctors and that his low back injury was caused by the motor vehicle accident in July2009.
While it is usual for injuries to manifest themselves within a short period of an accident there are many examples of people who do not complain about all their injuries at the time but start making complaints at a later date.
It is important to let a medical practitioner know of all your symptoms following an accident or as soon as they become apparent, however minor you may think they are at the time. If they later become much more problematic doing so may avoid any disputes about the relationship between those problems and the initial accident arising.
If you would like further information about your eligibility to claim for an injury suffered in an accident contact Wendy Kleyn on (03) 9670 5999 for advice.