Shergold v Edwards  WADC 149 and Shergold v Edwards
 WADC 150, both delivered 12 October 2016, highlight a number
of issues relating to CTP litigation.
The plaintiffs were self-represented and appeared in person at
their trials, after having engaged four different law firms during
the course of the court proceedings. The duration of the trials was
The male plaintiff claimed nearly 4 million dollars in his
amended particulars of damages and $4.7 million in closing
The female plaintiff, his wife, claimed 3.14 million dollars in
her amended particulars of damages and nearly $3.9 million in her
The Plaintiffs claimed they sustained injuries as a result of a
motor vehicle crash which occurred on 25 August 2007 when the Ford
transit van in which they were travelling was struck in the rear by
a Mitsubishi Magna. The defendant driver of the Magna conceded it
was a forceful collision.
The male plaintiff claimed his injuries included a brain injury
and a lower back injury. He did not specifically make a claim for
depression, but had a history of depression and was under
pharmacological treatment at the time of the crash. He also
suffered from chronic asthma, sleep apnoea and was overweight.
He was a stonemason at the time of the crash and admitted he had
little work in the first half of 2007. He was unfit for work at the
time of the crash mainly because of lower back pain and depression
due to work related stress and financial pressure. Former clients
gave evidence relating to their dissatisfaction with work he had
completed for them as a self-employed tradesman. His financial
history included multiple bankruptcies, unorthodox invoicing and
annual accounts. There was no evidence that he made any profit from
his business in the three year period prior to the crash.
The male plaintiff did return to other forms of employment some
months after the crash including as a console operator and then as
a forklift driver for short periods, prior to ceasing all
His Honour Staude DCJ accepted the evidence of Dr Home and Mr
Hardcastle, who both examined the male plaintiff for the Insurance
Commission, and concluded he was in any event not suited to
unrestricted work as a stonemason because of symptomatic spinal
degeneration and obesity. His Honour also accepted that he did not
have a viable business at the time of the crash and that there was
no evidence his business would have become profitable if not for
The male plaintiff produced different sets of income tax returns
completed by different accountants which contained discrepancies
and some unlodged returns claimed significantly higher income.
His Honour states at 288:
"I do not find that he has
necessarily fabricated his symptoms; rather that he has
purposefully attributed to the crash symptoms not caused by it,
exaggerated such symptoms as he has, and overstated his actual
At 307, His Honour stated, with regard to the claimed brain
"... I find he has deliberately
promoted this aspect of his claim in an attempt to recover
His Honour accepted the male plaintiff was suffering from
psychiatric problems and this was not due to the crash but had been
aggravated by the stress of years of litigation, the strain of
family breakdown and financial pressure. His Honour also rejected
claims that his requirement for medication for his crash related
injuries caused tooth loss and sexual dysfunction.
His Honour found the male plaintiff had suffered soft tissue
injuries of his cervical and lumbar spine as a result of the crash
and assessed general damages at 12.5% of a most extreme case, ie
$30,250. He was also awarded $22,200 for damages for past loss of
earnings including interest to compensate him for a period of about
five months from the date of the crash until he commenced work as a
console operator in January 2008.
No award was made for future loss of earning capacity on the
basis that his subsequent development of knee problems was more
incapacitating now than any incapacity he suffered at the time of
the crash. No further sums were awarded under any other head of
The male plaintiff's total award of damages amounted to
His wife claimed injuries and His Honour awarded her a total of
$20,100 (10% GDS). His Honour also ordered the parties to confer in
relation to her claim for special damages totaling $11,221.20 in
regard to which no proof was provided.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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These cases provide some guidance as to how the courts have approached the assessment of damages in nervous shock claims.
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