Brisbane decision demonstrates documented & compelling evidence crucial to assessment of psychological injury
April 21, 2016
The plaintiff suffered personal injury at the Woodford Folk Festival on 1 January 2008 (the incident), when a stand with a number of stage lights fell and hit her on the head.
The four defendants admitted liability and agreed apportionment. The only issue to be determined at trial (which ran for seven days) was quantum. Moray & Agnew acted for the second defendant.
The plaintiff alleged that she sustained a significant head and psychological injury. At trial, she sought damages of just short of $300,000 plus costs.
His Honour Judge Reid of the District Court awarded the plaintiff just $5,000 in damages. His decision was based on a methodical review of the evidence presented at trial by the parties.
His Honour found that:
- by 2006, the plaintiff’s level of unrelated back pain was such that she could not work, and thereafter she had continuously been on social security benefits
- she had a significant and long history of depression.
The plaintiff gave an account at trial that following the incident, she was entirely unable to cope with her basic care (let alone work).
His Honour was required to consider whether the plaintiff indeed suffered such a gross disability, and if so, whether the incident caused this.
Documented post-incident history
The Court placed great weight on the plaintiff’s significant post-incident medical and social security history. The judge found that:
- over a 12 month period starting May 2008 – and despite various attendances – there was at best two documented references to the incident in the material before him
- on that basis, the only conclusion he could reach was that the plaintiff did not attribute any significance to the incident after March / April 2008
- the plaintiff’s evidence that the lack of documented contemporaneous complaint could be explained by doctors and Centrelink staff not recording her verbal accounts to them was deliberately dishonest.
His Honour also placed significant weight on the medical evidence. Importantly, he found that:
- the plaintiff did not suffer any physical or psychological whole person impairment as a consequence of the incident
- she feigned the extent of her capacity (as evidenced by testing) when she attended the defendants’ reporting neuropsychologist
- her reporting psychiatric evidence was contingent upon acceptance of her having sustained a significant and ongoing physical impairment, which she did not
- her treating psychiatric evidence was dependent on it being accepted that, before the incident, the plaintiff was functioning well in employment, which she was not
- the cause of the plaintiff’s ongoing psychiatric impairment was directly related to an underlying condition, and not the incident.
In addition to the findings above, His Honour made the following important findings as to the plaintiff’s credit:
- the plaintiff had not been forthcoming in her evidence about her pre-existing psychiatric / psychological history
- she was confronted before – and at trial – with a Facebook history that evidenced her capacity as far greater than she alleged. She said that others had posted and deleted photos and comments from her account. Those other persons denied this at trial, and His Honour accepted those denials. The judge concluded the plaintiff had a far greater capacity than alleged, and also that she was being deliberately dishonest.
His Honour found that the plaintiff’s case could not be salvaged by lay evidence pointing to a significant and incident-related impairment. The recollections offered were vague, and in one case was significantly undermined by His Honour’s questioning of the witness during the trial.
His Honour awarded:
- General damages under item 9 of the Civil Liability Regulation 2003 – $4,000
- Gratuitous care – no award as the statutory threshold was not met
- Economic loss – no award because the plaintiff had not been in employment for in excess of 12 months pre-incident
- Special damages – nominal award of $1,000 for past only.
The outcome of cases involving psychological / psychiatric injury are notoriously difficult to assess, particularly when credit issues are involved. However, this decision demonstrates that – with compelling and documented evidence and submissions – courts will closely consider the true cause of alleged injury.
Practitioners and claims handlers will observe the potential benefits of social media and other similar avenues when assessing credit, and as evidence at trial.
Authored by Scott Cowell, Partner, Brisbane.
July 23, 2020
In 2018 the Civil Liability Act 2002 (WA) (the Act) was amended to provide a basis to bring legal proceedings against…Continue reading
November 15, 2018
Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance  NSWCA 100 The Appellant, Weir Services Australia Pty Ltd (Weir),…Continue reading
December 5, 2018
Single v Workers Compensation Nominal Insurer – NSW Dust Diseases Tribunal, 30 November 2018 Introduction In Single, Russell SC DCJ of…Continue reading