Melissa Paradiso

pre-existing personal injury

How will my pre-existing medical condition affect my personal injury claim?

People can experience all sorts of health issues throughout their life, whether it’s a sports injury, an injury suffered at work, a long-term back problem or some other medical condition.  If you then suffer an injury in an accident, your injury will be considered against the background of any pre-existing medical conditions you had at the time of the accident.

As the injured person, you have the responsibility of proving that the negligent party caused your injury. You also have the responsibility of proving the extent of any loss, damage and incapacity flowing from that injury.

Why is my pre-existing medical condition relevant to my personal injury claim?

If your pre-existing medical condition impacts on your capacity to earn an income, perform activities of daily living or if you are continuing to receive treatment, then your pre-existing medical condition will likely reduce the compensation you are entitled to.

This is because the negligent party is only liable to compensate you for any incapacity and need for treatment arising from the injury you sustained in the accident. The negligent party is not liable to compensate you for any incapacity you suffered before the accident or treatment you needed irrespective of the accident because of a pre-existing medical condition.

However, if you suffered a pre-existing medical condition a long time ago which you completely recovered from, then arguably that medical condition is not a relevant factor that would need to be considered in the assessment of your personal injury claim because it was no longer affecting you.

In some circumstances though, even a pre-existing medical condition that you have completely recovered from still needs to be notified to the negligent party. If, for example, you are injured in a motor vehicle accident in South Australia and make a Compulsory Third Party (CTP) insurance claim, the Injury Claim Form requires you to notify the CTP insurer about:

  • Any injuries or illness, before or after the accident, to the same or similar part(s) of your body injured in the accident.
  • If you are aware of any other previous medical history, health issues or injuries that may affect your recovery from the injury caused by the accident.
  • If you have made a compensation claim for another personal injury before or after this accident (eg assault, medical negligence, workers compensation or another vehicle accident).

Who is responsible for providing the extend of my pre-existing medical condition and how it will likely continue to affect me?

Generally, the negligent party is responsible for proving that some or all of your incapacity would have, in any event, resulted from your pre-existing medical condition.

However, it is not enough for the negligent party to simply prove that you suffered from a pre-existing medical condition. The negligent party also needs to prove how your pre-existing medical condition will likely progress and affect you in the future.

To ensure that you maximise your compensation entitlements, you will need to obtain detailed medical evidence about the nature of the injuries you suffered as a consequence of the accident and how your injuries will likely continue affecting you.

This evidence will be weighed against any medical evidence obtained by the negligent party about the nature of your pre-existing medical condition and how your pre-existing medical condition will likely continue affecting you. This evidence will be used by the negligent party to argue that your compensation entitlements should be reduced.

What should I do if I have suffered injury in an accident but I also have a pre-existing medical condition?

Making a personal injury claim when you have suffered injury in an accident but also have a pre-existing medical condition is often difficult and complicated.

Instructing an experienced personal injury solicitor to manage your claim will assist you with determining whether a pre-existing medical condition is relevant to your claim and how that pre-existing medical condition may affect your compensation entitlements.

An experienced personal injury solicitor will also assist you with obtaining crucial medical evidence to establish the extent to which your incapacity and need for treatment is related to your injury, rather than your pre-existing medical condition, which will ultimately assist with maximising your compensation entitlements.

If you would like assistance with pursuing your personal injury claim, speak with one of our experienced personal injury solicitors today on 8357 7611 or book an appointment now for a free 30-minute consultation.