$100k payout slashed as accident victim goes quad-biking, rock climbing

A cyclist who received $100,000 compensation after being hit by a drink-driver at a southeast Queensland school crossing has had the payout slashed - partly due to what he posted on social media.

Darwin Cabato quad-biking with girlfriend Apple Morante

A cyclist who was mown down on a Gold Coast school crossing by a drink-driver has had his compensation payout slashed after a court found he was partly to blame – and social media posts showed him go-karting, driving dodgem cars and rock climbing despite his claimed painful injuries.

Supermarket worker Darwin Cabato, 26, was awarded almost $100,000 in damages after suing the driver and insurer Allianz Australia in the District Court.

But his payout was reduced to $73,663.91 after a judge found he was 25 per cent responsible and slammed him as an unreliable witness.

His lawyers say it’s still a significant victory after Allianz argued he was only entitled to about $5000.

Mr Cabato was sent flying after being hit by a ute as he rode his pushbike across a school crossing at Palm Beach in March 2017, according to a court judgment handed down this week.

A police report said he was not wearing a helmet, rode over the crossing “at speed” without stopping to get off his bike and the driver, Gregory Paltridge, did not have time to apply the brakes.

The judgment said Mr Paltridge was over the .05 alcohol limit when the accident happened about 9.48am, and was travelling at about 40km/h.

Mr Paltridge and Allianz admitted liability and that Mr Cabato suffered some injuries, but denied he was more seriously hurt with neck, spine, head and psychiatric injuries as he claimed.

Darwin Cabato with girlfriend Apple Morante

Mr Cabato initially claimed more than $400,000 in damages but this was reduced to between $143,000 and $260,000 after a six-day trial.

Judge Deborah Holliday KC found that Mr Cabato was not a credible or reliable witness, saying he gave contradictory evidence about his injuries and had “exaggerated to most of the medical experts, and to a lesser extent, this court”.

“I do not consider that the plaintiff was a credible and reliable witness and I am not prepared to act on his evidence where it is not supported,” she said in her judgment.

“There are inconsistencies in what the plaintiff reported to the experts which are inconsistent with each other and inconsistent with the evidence he gave in court.”

Judge Holliday said there were no ambulance or hospital records of any neck, thoracic or lumbar injuries and noted that Mr Cabato did not complain to doctors about his alleged symptoms until about three years after the accident.

She said she also took into account social media posts by Mr Cabato and his girlfriend Apple Morante showing them living it up, despite his claimed injuries and him telling a doctor that he “stayed at home most of the time because of my back”.

“The social media posts show the plaintiff enjoying activities including going out to dinner with his girlfriend, going on holidays to Sydney and Bali, go-karting, riding an electric scooter, rock and rope climbing, quad biking, dodgem cars, hiking, lifting up his girlfriend, and his girlfriend sitting on his shoulders,” the judge said.

Darwin Cabato with girlfriend Apple Morante

“The plaintiff said in evidence that he did experience pain with these activities but did them to impress his girlfriend; he didn’t want his girlfriend to know that he was “less of a man”; he wants to live a “happy life”; he did not want to be “less of a loving and happy partner”; and these were “special times”.

“Whilst that may all be the case, in my view the social media posts are inconsistent with the plaintiff being in pain to the level that he has described to the experts, and to a lesser extent this court.”

Judge Holliday found that Mr Cabato had suffered neck and back injuries as a result of the accident but had exaggerated the extent and constancy of his symptoms to some medical experts who examined him for the case.

She awarded him a total of $98,218.55 in damages, but reduced it by 25 per cent due to “contributory negligence”.

Paul Carter, of Southern Gold Coast Lawyers which represented Mr Cabato, said Allianz had denied he suffered neck and back injuries “despite the fact he was hit by a car on a pedestrian crossing at 40km/h”.

Mr Carter said Allianz argued that his client was only entitled to about $5000 in compensation but he received almost 15 times that figure for pain and suffering, out of pocket expenses and future treatment, care and economic loss.

“The insurer had years to settle the case but chose not to,” he said.

Allianz also faces a hefty legal costs order expected to run into hundreds of thousands of dollars.