Boarding school sex scandal: willing student‘s $1.5 mil award includes aggravated & exemplary damages

“It defies belief that a seemingly intelligent, mature, woman would risk her marriage and career to have a sexual relationship with a schoolboy,” wrote the judge in the case of a 13-yr-old who became infatuated with his boarding house tutor was not long out of uni with a Masters degree.

The case before the court concerned Nicholas Brockhurst who in 1996 started his first year at Toowoomba Grammar School in grade 8 and quickly established a very close relationship with his teacher.

He also saw Meredith Rawlings for evening pre-dinner tutoring sessions that often extended to 2 hours and they had daily late-night phone contact. She often came to his rugby and cricket matches where they would sit together when he was not on the field. They took a weekend bus trip together from Toowoomba to his family farm at Drillham just west of Miles.

Kissing became “more regular” from mid-1997 by which time the frequent intimacy between them had been noticed by others.

Although Rawlings was directed by the school in April 1997 not to be alone with the student “or any other schoolboy”, their closeness increased. They first had sex while he was staying – with his parent’s consent – at her home over the long weekend of the annual Downlands–Grammar rugby carnival.

It was then that his parents raised their relationship with the school after having discovered notes and faxes from Rawlings to their son. He admitted the relationship in confrontation with the school’s counsellor at the start of term 3 which led to the tutor’s departure from the school a month or so later.

Brockhurst was expelled not long after for rough and bullying behaviour towards a classmate, allegations that he denied.

He undertook year 10 at Miles State High still infatuated with his former teacher and angry at those who had bought their relationship to an end.

He returned to TGS for year 11 but fell in with “the wrong crowd who smoked weed behind the footy oval” and was expelled again. He finished years 11 and 12 at Nudgee College but his final results were “diabolical”.

The student filed a lawsuit against Rawlings more than 10 years later in 2018 claiming damages for “battery” for each instance of intimate or sexual contact on the basis that at age 13 and 14 he was not able to give consent.

He argued that after having sex for the first time his academic performance “disintegrated” and went from being a “polite and nice boy to one who challenged authority and put no effort into his schoolwork”.

Although “he did not need much persuasion” and was “over the moon” at the time, the illicit relationship had been – he pleaded – the cause of his poor schooling outcome, chequered employment history, intimacy issues and failed relationships all the while being severely depressed and suffering insomnia.

His former tutor on the other hand contended the complainant’s version was “a fantasy he convinced himself was true”.

Her version was that the boy already had an oppositional defiant disorder before his interest in her began and it was only her influence that had moderated such behaviour. She had, she swore, only embarked on the Behaviour Recovery Program – which involved extending additional attention to the boy – because of his mother’s concerns that he might self-harm.

Unfortunately her lawyers did not call any psychiatric expert evidence in that regard and those psychiatrists who gave evidence were only sparsely cross-examined.

Counsel for the defendant made much of the inconsistencies between the plaintiff’s testimony and his prior statements that – he alleged – shed doubt on his credibility.

Not so ruled Justice Soraya Ryan who heard evidence and submissions over 12 days in March and April 2021.

In her view such inconsistencies were satisfactorily explained because they related to different periods of time; reflected misunderstanding or mistake by the medical practitioner reporting what he had said; related only to peripheral matters in respect of which he had an “unsurprisingly patchy memory”; related to the context in which they were made; or were only trivial.

She also excused the student’s concealment of the relationship from psychiatrist Doug Scott whom he consulted at the behest of his parents in 1997.

“The plaintiff was a heart-broken 14-year-old boy, displaying difficult behaviours in the aftermath of the end of a relationship with a woman he adored: a relationship which he did not then understand as abusive”, she noted in exoneration of such non-dislosure.

While rejecting the plaintiff’s submission that Rawlings’ defence was entirely fabricated, Her Honour was nevertheless satisfied – rejecting Rawlings’ “innocent spin” – that the “grooming and seduction” had occurred in the “very believable progression of intimacy over time” described by the plaintiff in the witness box.

Justice Ryan reasoned in her 90-page judgement that Brockhurst’s battery claim was made out noting that she did not “need to understand why she was sexually attracted to the plaintiff or why she took the risks she did in being intimate and sexual with him”.

She upheld the claim for loss of earning capacity, concluding the psychological injury caused by the sexualised behaviour had impacted negatively on his ability to earn income.

General damages were assessed on a common law basis at $65k and past income related losses at $680k. A 30% loss of future income earning capacity was attributed to his injury, yielding a further $306k.

“Aggravated” damages – in recognition that the defendant acted with contumelious disregard for the plaintiff’s rights – of $35k, and “punitive” damages of $15k were also awarded.

The total award was $1.57 mil against which $100k – two thirds of the settlement sum already paid to the plaintiff by TGS – was deducted.

Brockhurst v Rawlings [2021] QSC 217 Ryan J 27 August 2021

source https://cartercapner.com.au/blog/boarding-school-sex-scandal-willing-students-1-5-mil-award-includes-aggravated-exemplary-damages/

Teacher in horror crash gets nod for longstanding psych injury limitation extension

He was being driven to work by his wife when they were rammed from behind and spun 180° to allow a full view of the other vehicle being torn in half and burst into flames as it hit a power pole instantly killing its driver.

Aubrey Wyatt had remained conscious throughout the October 2016 peak hour accident unlike his wife and one of his two daughters who were also passengers in the vehicle.

The family were ambulanced to the Hervey Bay hospital where Aubrey was treated for a neck injury.

WorkCover approved his workers’ compensation claim for that injury which resolved after a week whereupon he resumed teaching duties as normal.

Six months after the accident he began to experience insomnia, nightmares and flashbacks related to the horror accident.

He took leave from his position in March 2017 and applied to reopen his WorkCover claim in September 2017 through which period he consulted his GP who prescribed antidepressants and referred him for counselling and then to a psychiatrist.

In about July 2018 Aubrey commenced a RTW program.

He eventually consulted solicitors in December 2019 for advice in relation to a forthcoming Medical Assessment Tribunal hearing.

On his attempted return to full-time teaching in a classroom environment in January 2020 he realised his symptoms were so bad his “ongoing employability as a teacher” was at risk.

It was at this point Aubrey instructed solicitors to advise in relation to starting a potential motor accident injury compensation claim out of time ie more than three years after the date of accident.

A Notice of Claim was served on Suncorp as CTP insurer of the at-fault vehicle in April 2020 together with a statement that he intended to rely on s 31 of the Limitation of Actions Act to gain an extension of the limitation period by reason of material facts of a decisive nature only having come to his knowledge in the preceding three months.

The material facts relied on were the MAT assessment of a 5% permanent impairment in February 2020 and the subsequent advice from his solicitor of “the enduring nature and extent of psychological injury and the effect that might have on the extent of his loss [of future income]” on which he relied to conclude that the bringing of an injury compensation claim was justified.

His limitation extension application came before the District Court at Brisbane in February 2021 when it was resisted by Suncorp on the basis that such facts were within Aubrey’s “means of knowledge” and he would have discovered them had he made reasonable enquiries of his treating doctors at an earlier time.

He had after all received years of treatment from a psychologist and psychiatrist and taken 2 years leave from full-time employment.

In particular, psychiatrist Sharon Harding – when conducting an assessment for WorkCover in November 2018 – had diagnosed PTSD with “a very tenuous capacity to be working at all at present”.

Suncorp forcefully submitted to Chief Judge Brian Devereaux that a reasonable person in his position would have enquired at least by the end of 2018 about the potential long-term effect of the injury on his employment and would – according to the expert testimony of psychiatrist John Chalk – have been told then of his dire future employment prospects.

His Honour noted though that among the species of “material facts” relating to “the nature and extent” of the injury that may be “of a decisive character” is the fact that “the right of action has reasonable prospects of an award for damages sufficient to justify bringing the action”.

But had Wyatt taken “all reasonable steps to ascertain the seriousness of the injury” before the expiration of the limitation period?

The answer to this question “depends very much on the warning signs of the injury itself and the extent to which it or other facts might be thought to call for prudent enquiry,” Judge Devereaux observed in deciding the question in the affirmative.

“The material compels the conclusion that the applicant was struggling against serious illness but held a focus on recovery and continuing to work”.

He went on to conclude it was not until after Aubrey’s attempted resumption of full-time classroom duties and the MAT’s permanent incapacity finding, that it dawned on him his future employability was at risk.

His Honour noted that there had been no prejudice to Suncorp by the delay and that but for the operation of the limitation period, Mr Wyatt had a “meritorious claim”. He granted the extension application which will allow the claim to be determined by the Court if nor resolved by negotiation.

Wyatt v AAI Limited [2021] QDC 188 Devereaux CJDC, 16 August 2021

source https://cartercapner.com.au/blog/teacher-in-horror-crash-gets-nod-for-longstanding-psych-injury-limitation-extension/

Court says unidentified vehicle did not exist; driver to see none of $1.5 mil agreed damages

A driver whose ute collided with the rear of a preceding vehicle on a highway in Central Queensland has failed in his attempt to blame the accident on an unidentified third car with a judge concluding the story was his own invention.

Darren Medlin was driving home in December 2014 to Yeppoon from Rockhampton – on a road he knew well – thinking about the government job he had been working at for the past couple of months.

He claimed his Hilux had been following a red hatchback east until it violently swerved to the left off the road to avoid a Ford utility turning right into a driveway. He then – so his story went – slammed on the brakes and swerved but couldn’t avoid hitting the Ford.

Medlin’s version was that his view of the Ford was obscured and he wasn’t aware of it having stopped because Red Car had not slowed down behind it failed to “await its turn before proceeding” but rather swerved sharply and passed the Ford on its left at speed.

But for such unsafe driving on Red Car’s part, Medlin claims he would have seen the Ford and avoided hitting it.

Red Car did not stop at the scene and neither it nor its driver had since been identified.

Medlin and the occupants of the Ford – Hayden Finn and his mother Sharon – were seriously injured in the high speed collision.

Because he had no way of identifying Red Car’s particulars or those of its driver, Medlin’s only recourse was against the Nominal Defendant, as statutory third-party insurer for identified vehicles.

In response to the lawsuit he filed in the Supreme Court in 2017 the insurer agreed his income and other losses from the accident came to $1.5 mil but contended Medlin had made up the story about Red Car and that regardless, the driver of that vehicle did not owe him any duty in the way it went about avoiding a collision with the Ford.

The dispute came before Justice Susan Brown in Rockhampton over three days in December 2020.

While Her Honour considered Medlin to be an honest witness, “his evidence suffered from reconstruction rather than him recalling what had occurred”.

And while the evidence of other witnesses was “honest and generally reliable,” Justice Brown observed that “what witnesses saw and their recollections, are piecemeal”.

Neither Finn nor his mother recalled any car passing them just prior to the collision and none of the several witnesses called by the insurer could attest to Red Car’s presence.

The only witness called by Medlin to support his version of events remembers a red car coming out of the dust caused from the crash and driving away from the scene in a way and from a position that Her Honour thought was materially different to what Medlin had described.

An under resourced police force hadn’t investigated Red Cars presence as their priority was clearing the road and ensuring safety. Unfortunately, a number of witness statements obtained by police contained errors (included the year the crash occurred) and some were obtained months after the collision.

Justice Brown concluded that although Medlin’s version of events was “possible”, his version of events was not what in fact occurred and was not supported by any other witness.

Considering how unusual it would be for a driver violently swerve off the road as described, Her Honour found it likely that any one of the witnesses would have seen it and remembered if it did in fact happen.

Her Honour concluded Medlin had reconstructed the events and that – given his excellent driving record – Red Car offered a justification when he may well have been “lost in thought on a road he knew well, rather than focussing on what was ahead of him”.

Having arrived at that conclusion, it wasn’t necessary for the court to consider whether the driver of Red Car had in fact been negligent.

Had accurate evidence been gathered at the time of the crash, the Court may have had a clearer picture of what happened that day. That evidence may have been sufficient to persuade the Court Red Car had existed and its erratic driving had contributed to the collision.

Medlin v Nominal Defendant [2021] QSC 186, Brown J, 5 August 2021

source https://cartercapner.com.au/blog/court-says-unidentified-vehicle-did-not-exist-rejects-drivers-1-5-mil-claim/

Park fall plaintiff wins all points on appeal: “single steps in thoroughfares are dangerous”

A visitor to a mountain lookout public park who fell on a step while descending a paved path has defeated the local council’s appeal against his $700k damages award.

Bernard Williams – a disability support worker – had in May 2016 been supervising an adult under his charge at the Mount Keira Lookout that overlooks Wollongong NSW.

He misjudged one of three single steps in an access path descending to a toilet block, fell to his left and injured his left elbow and wrist.

Seriously incapacitated, he filed proceedings against the council claiming it was liable for failing to provide a handrail or warnings as to the danger in the access path posed by the steps.

When the matter came before the NSW District Court he argued that the single steps were indistinguishable from the brick paver pathway as they were constructed of the same materials and in the same colour brown.

The council defended contending it had no duty to warn of the risk of harm posed by having to negotiate the three single steps because it was an “obvious risk”.

And had he been looking where he was going – it alleged – Williams would have seen the change in pattern of the brick pavers for the “nosing” at the edge of the step.

Williams testified he had indeed been looking straight ahead and had “continued to monitor” the path but shadows cast from nearby trees disguised the visual cues by which he might otherwise have detected a change in level as he proceeded.

Expert safety consultants Dr John Cooke of UNSW and Neil Adams concurred that “a single step in a pedestrian area is a potential hazard if it is not marked by adequate visual cues”.

Applying that opinion, Judge Matthew Dicker concluded them to be a hazard because the pavers were of the same colour and the differentiation in the “nosing” pattern was “not clearly conspicuous, particularly in the shade”.

That said, the risk they posed was not “obvious” he concluded. Users “would not expect a pathway leading to a disabled toilet …to involve steps that were not clearly delineated with adequate visual cues” and to be without handrails.

His Honour allowed the claim with a 15% deduction for contributory negligence.

He then applied a 10% discount to arrive at past wages and superannuation damages of $316k out of a total award of $700k. There was no claim for loss of future earning capacity as the 66-yr-old Williams had retired by the date of the trial in August 2020.

All three appeal judges dismissed the council’s appeal.

In addressing Williams’ appeal against the finding he had been contributorily negligent, the court recognised the trial judge had faced a conundrum.

“Having accepted that the step was not readily visible to a person who was exercising reasonable care for their own safety,” Justice Lucy McCallum reasoned “it was necessary [for the primary judge] to identify some basis for the conclusion that Mr Williams failed to perceive the step because he wasn’t”.

Her Honour concluded that there was no such evidence.

“His only fault was that he did not happen to look down towards his feet, as opposed to looking ahead in the direction in which he was walking,” which conduct was obviously not negligent.

She – with whom Justice Carolyn Simpson agreed – allowed Williams’ appeal against the finding of contributory negligence.

Those two Justices also agreed that the 10% discount applied to past loss of income had been done so in error because the trial judge had assumed that some discount was required to take into account the chance of the plaintiff retiring before the age of 66. Such assumption was wrong.

The proper course – which the primary judge neglected to follow – was to assess the degree of probability of such early retirement.

Given that all the evidence contradicted any such prospect – for example Williams had continued to work through many adversities in the past – “the discount of 10% was inconsistent,” wrote Justice Simpson.

Williams won on all three points and was awarded the costs of the appeal. The resulting outcome was an approximate $150k increase in his overall award.

Wollongong City Council v Williams [2021] NSWCA 140 McCallum JA Simpson AJA Adamson J, 9 July 2021 Read case

source https://cartercapner.com.au/blog/park-fall-plaintiff-wins-all-points-on-appeal-single-steps-in-thoroughfares-are-dangerous/

Remote airport tarmac fall spotlights airline disembarkation accident liabilities

A serious accident during passenger disembarkation at a remote Australian airport demonstrates the relative safety responsibilities of airlines, ground handlers and airport operators to guard against foreseeable hazards.

In November 2012 Ron Garnett – a fly-in/fly-out regular at that destination – made his way across the Karratha airport tarmac from the rear stairs of the Qantas B738 that had just arrived from Perth.

The sun had set 20 minutes earlier and daylight was fading fast. A path for arriving passengers leading to the terminal to the north of the tarmac was designated on the left side by bunting with flags strung between wheelie bins.

It joined a passenger walkway that ran east/west along the tarmac apron.

It was on that walkway as his left foot struck the unseen edge of a lighting tower plinth at its base, he fell smashing his left knee and causing other injuries.

His injury compensation lawsuit was begun in July 2014 against the carrier who subsequently joined as third parties its ground handling agent, Skystar and the aircraft owner and operator, Karratha City Council. The third parties cross claimed against each other.

In October 2015, Garnett was given leave to add Karratha and Skystar as defendants to his injury claim.

The four-way contest came before Judge Amanda Burrows SC in the District Court of Western Australia in May 2018.

Qantas conceded its liability as carrier for the disembarkation accident and agreed to pay Garnett $500k plus costs that being its maximum Civil Aviation (Carriers’ Liability) Act 1961 (WA) exposure for itself, its employees and agents as at the date of accident.

The contribution dispute then fell to be decided as between the carrier and Karratha & Skystar as did Garnett’s separate claims against those parties for his additional losses over and above the $500k limit.

Skystar separately agreed with Qantas to pay it 50% of the compensation and costs it was liable to pay the plaintiff Garnett.

The FIFO passenger alleged the non-carrier parties were liable to him for not having eliminated the hazard for example by painting the plinth in bright yellow, improving the lighting or installing a railing to isolate the hazard.

Garnett was able to make out his negligence claim and her Honour awarded him judgment for damages to be assessed as against Karratha.

The Council was also liable in Qantas’s contribution claim (for the other 50% of the sum it agreed to pay the passenger) due to its breach of a “safe access” term implied in the agreement for the use of the airport between it and the carrier.

It was however a different outcome as against Skystar who – as Qantas’s “agent” – was entitled to avail itself of the Carriers’ Liability Act two-year limitation period. On that interpretation, Garnett’s claim as against the ground handler had been “extinguished” before it had been joined as a defendant to the claim.

Garnett appealed the ruling that Skystar was Qantas’s “agent” for the purposes of the Carriers Liability Act.

Karratha also appealed that finding and the trial judge’s decision it had breached its duty of care to the passenger.

Both appeals were dismissed after they came before the WA Court of Appeal in May 2021.

The appellants alleged Skystar was not truly Qantas’s “agent” as it did not have the requisite authority to bind the carrier contractually. Rather – they contended – the ground handler was a mere subcontractor.

The appeal judges observed that various iterations of the international conventions which are applied domestically by Australian legislation clearly state that “a servant or agent of the carrier…. shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke”.

They concluded the court should not focus on “the precise nature of the contractual relationship” but rather should identify “those entities and persons through which or by whom, the carrier provided the contracted service of carriage”.

“It is sufficient to conclude that the denotation of the phrase “servant or agent,” they wrote in the judgment of the Court, “includes an independent contractor engaged to marshal passengers from the aircraft to the terminal”.

In appealing the passenger’s judgement against it, Karratha had contended it had no responsibility for the injury because it played no part in designating the pathway that Skystar chose to utilise for the disembarking passengers.

That contention belied the unchallenged evidence. Only a few months earlier the Council had removed a grassed area delineating the plinth and replaced it with concrete to merge the area into the walkway. And its employees were “airside” daily and well aware of the plinth’s position in relation to the path Skystar had defined with wheelie bins and bunting.

“The judge was correct to find that the risk was reasonably foreseeable in that it was a risk of which Karratha knew or ought to have known”.

The assessment of Mr Garnett’s further damages payable to him for the disembarkation accident by Karratha City over and above that which Qantas must pay, will proceed in the coming months.

Garnett v Qantas Airways Ltd – [2021] WASCA 110, Murphy JA Mitchell JA Vaughan JA, 30 June 2021

 

source https://cartercapner.com.au/blog/remote-airport-tarmac-fall-spotlights-airline-disembarkation-accident-liabilities/

Global food giant in machinery fix fail; will pay $3 mil for factory worker injury

A factory worker has won substantial damages after being runover by runaway forklift that was serviced by its OEM supplier just 6 days earlier.

Toufic Metri, – a licensed forklift operator – suffered extensive injuries after being ejected from the forklift he was driving at the Nestlé manufacturing facility in  Blacktown, NSW in August 2012.

The 44-yr-old Metri was working an extra shift moving pallets of incoming stock to racks identified by the computer screen on his forklift when it suddenly “took off” to a “crazy fast” speed which he had never before seen a forklift able to get to.

As he lifted his foot from the accelerator, instead of slowing, the machine kept getting faster until it suddenly decelerated and threw him onto the factory floor before it ran over his legs.

No longer able to work, Metri filed a lawsuit against Nestlé in 2015 for damages for the injuries including for economic loss and loss of future earning capacity.

He alleged Nestlé was required – pursuant to its own risk assessment recommendation – to have provided the forklift with seatbelts or other devices to prevent a factory worker injury by falling from it in case of any mishap or accident.

He also alleged the machine had been inadequately repaired after the prior and very similar mishap 6 days earlier.

With the leave of the Court in 2019, Metri added EOM Linde – the forklift manufacturer and the organisation with whom Nestlé contracted for the maintenance of its forklift fleet – as a second defendant on the ground it had negligently repaired forklift 432 after the earlier mishap.

Co-worker Jason Connell who had encountered a similar episode earlier that week had  “tagged” the machine out of service for a “speed sensor issue” and reported being startled by the malfunction the sudden unexplainable increase in speed to his supervisor.

Linde was requested to investigate. An experienced service technician repaired a fault he detected in the battery locking sensor and test-drove the machine for 20 minutes to confirm all safety features, plus the steering and brakes before returning the machine to service.

Regrettably, no specific investigation of the fault reported by Connell – an “overspeed issue – was carried out because those details had not been passed on by Nestlé to the Linde team.

The overspeed fault did not recur until Metri made use of the machine 3 days after its return to service.

The serious injuries Metri sustained included a “degloving” injury to his left lower leg which resulted in a below-knee amputation. A spinal injury aggravation, an avulsion fracture of his left elbow, PTSD and major depression that also resulted are permanent conditions.

Both the Defendants denied the allegations of negligence.

The trial came before Justice Christine Adamson in the NSW Supreme Court who concluded that the probability of the harm of a driver being ejected from a forklift in the event of a sudden change of movement must be regarded as “relatively low”.

She then considered a risk assessment conducted in 2008 that was reviewed in 2010 and 2012 and referred to the consequences of not using seatbelts on forklifts were that the “operator may fall out of forklift in the event of an incident /collision which can result in Injury/fatality”.

On that basis she ruled the likely seriousness of any resulting “harm” to be “very great” and the burden of taking reasonable precautions – seat belts or sidebars – “would not have been particularly expensive, difficult or impractical”.

The risk of injury was thus “material and foreseeable” and Nestlé was liable to Metri in negligence for having failed to take the requisite precautions as recommended in the risk assessment by installing seat belts or sidebars to minimise the risk to a driver.

Nestlé – by failing to adequately communicate Mr Connell’s description of the fault to the Linde service people – failed in its further duty to take reasonable care to maintain and repair equipment it provided its workers.

“The duty of care which Nestlé owed to him included a duty to obtain suitable equipment and take reasonable care to maintain and repair it”.

As against Linde, Metri simply pleaded res ipsa loquitur contending that the unresolved fault in forklift 432 was of itself evidence of the OEM’s failure to take reasonable care in conducting the repair.

That argument was rejected on the ground that information received by Linde was incomplete and lacked the specifics Connell had reported.

“The principle of res ipsa loquitur is inapposite,” ruled Judge Adamson.

Linde was not liable to Metri because it serviced forklift 432 and returned it to service without knowledge of the particular and rare overspeed problem which – had such information been provided to it – would have been investigated further.

Nestlé also failed in its cross-claim for indemnity against Linde for similar reasons.

The damages Nestlé – the world’s No 3 food production company – must pay him is $2.93 million and will include $400k for general damages, $444k for past expenses, loss of future earning capacity of $722k and future domestic assistance of $201k. The food giant was also ordered to pay the legal costs of Metri and Linde.

Metri v Nestlé Australia Ltd [2021] NSWSC 343, Adamson J, 7 April 2021 & 12 May 2021 Read case

source https://cartercapner.com.au/blog/nestle-pays-3-mil-for-factory-worker-injury/

“Just and act” insurer says of victim; lashed by court for dismissing medical evidence

An Appeal court has ruled that evidence of “malingering and exaggeration” should not bar an accident victim who “exaggerated or feigned symptoms” from receiving substantial motor accident compensation for his injuries.

Khaled Hoblos a 36yr-old Lebanese born bus driver walked away from the March 2015 collision that wrote off his car.

The at-fault party’s CTP insurer admitted liability for transient injuries to his left knee and foot.

It promptly stopped paying depression-related treatment expenses in February 2018 on receipt of a report from jointly appointed forensic psychiatrist Selwyn Smith that considered Hoblos to be “more likely than not” demonstrating “abnormal illness behaviour”.

The bus driver’s Sydney District Court compensation ask turned on the extent of any consequential psychiatric injury that three psychiatrists – Eddie So, Inglis Synnott (assessing impairment at 27%) and Robert Hampshire – had diagnosed as a major depressive illness.

Seizing on Dr Smith’s comments and those of orthopaedist Roger Rowe that there was no “pathological or radiological support for ongoing physical injury”, the insurer contended Hoblos had no compensable injury and that his presentation in court and to examining specialists had been “nothing but an act”.

Also persuaded by Dr Smith’s observation, trial judge Jonathon Priestley SC decided – in the absence of evidence as to what might cause a person to demonstrate abnormal illness behaviour – Hoblos was hyper-exaggerating and he and his partner were not at all credible witnesses.

The medical opinions that supported the debilitating depression diagnosis were disregarded by the judge as having no weight as they had been based on the claimant’s “unreliable and inconsistent accounts”.

Given the absence of ongoing physical injury, the resulting outcome was zero damages for Hoblos.

He filed an appeal arguing that exaggeration of symptoms should not of itself invalidate the several diagnoses of his severe mental illness.

The NSW Court of Appeal – without disturbing the primary judge’s findings that the plaintiff had exaggerated or feigned symptoms – agreed.

In separate judgments, Justices Richard White and Lucy McCallum reasoned there was no basis for the assumptions that the trial judge had made.

“People with major depression [can] give a presentation and account of difficulties which can be exaggerated or feigned,” wrote Justice White. “A person with a major depressive disorder might display abnormal illness behaviour at the same or at a later point in time”. He noted that such behaviour may indeed be a symptom of the underlying condition.

The insurer’s case that the two conditions were mutually exclusive relied on flawed logic and a “false dichotomy”, observed Justice McCalum, resulting in an hypothesis that was “as farfetched as it is improbable”.

Noting that its video surveillance produced nothing significant, she observed that the insurer’s argument would require the court to find Hoblos’ illness behaviour was a sham “only because he played it too well”.

While the inconsistencies, exaggeration and even “abnormal illness behaviour” might have made the assessment of damages more difficult, it was the trial judge’s duty to have assessed them and not “conflate” liability issues with damages.

“The law is clear that his Honour should have proceeded to quantify damages, however difficult that task may have been,” wrote Justice McCallum.

“Lawyers should be wary of dismissing medical assessments,” she pondered on the insurer’s case theory, “where they are reached bringing to bear clinical experience and medical expertise”.

The appeal court held that the plaintiff was suffering from major depressive disorder and that the plaintiff should be entitled to all consequential losses including loss of income etc.

The appeal judges allowed the parties 28 days to lead arguments as to whether the damages should be re-assessed – as is the usual case – by the trial court or assessed by the appellate court on the available evidence as the cost of remittal to district court would be “disproportionate to the interest at stake”.

Hoblos v Alexakis, [2021] NSWCA 126, White JA, McCallum JA and Davies J, 23 June 2021 Read case

source https://cartercapner.com.au/blog/just-and-act-insurer-says-of-victim-lashed-by-court-for-dismissing-medical-evidence/