Although under appeal, Mashaghati is a reminder that
even if there are strong reasons to impugn a Plaintiff's
credibility, unless that evidence is directly on point it is open
to a trial judge to accept a Plaintiff's evidence.
On 1 May 2011 the plaintiff suffered multiple injuries including
a lumbar spine, head, dental and psychological injuries when he hit
a parked car whilst taking evasive action to avoid a collision.
Other than broken teeth, there was no clinical evidence such as
medical imaging to corroborate any long term complaint.
As the trial judge put it, the insurer's case was that the
plaintiff was "a liar and convicted perjurer who has no credit
and who has sustained a minor injury, exaggerating its effect to
pay off debts to the Hell's Angels". The defendant had a
fair bit of ammunition including:
Unrefuted evidence that the plaintiff had convictions for
collaborative assault and battery, embezzlement, fraud, perjury and
importing narcotics to Germany.
A post-incident arrest for breaching a domestic violence
That he associated with convicted drug traffickers.
Failing to disclose injuries on the claim form despite having a
back operation in the 1990s and telling a chiropractor the year
before the incident that he had "unbearable lower back pain
with sciatic pain down his left leg and had many broken
Having a personnel file that indicated personality issues,
alleged bullying and harassment and doing competing work.
That he gave evidence the trial judge accepted was arrogant and
While not accepted by the judge, the insurer asserted an
attempt at fraud by signing an employment contract with an
associate for a salary of $66,000.
The plaintiff reported to medical practitioners that he held a
Masters of Mechanical Engineering and was a research officer at the
University of Queensland in circumstances where he was merely a
Unfortunately for the insurer, the court found there was
"insufficient evidence to draw an inference that the plaintiff
had a predilection or motive to lie and even less so, that the
plaintiff was dishonest in relation to this case". Further,
that it was "too great a leap and speculative to tar the
plaintiff with guilt by association".
Despite the demonstrably untrue statement in relation to
previous injuries in the claim form, his Honour found that much of
the insurer's attack on the plaintiff's credit relied upon
collateral matters. While finding that the plaintiff's credit
was "diminished", and that there was inaccurate reporting
to medical practitioners, he found that he was not shown to be a
"notorious" or "pathological" liar.
Given the insurer's failure to fully erode the
plaintiff's credit, the court accepted the plaintiff's
medico-legal evidence including that of Dr Todman who despite
accepting that neuropsychological tests were inconclusive, assessed
a 10% impairment over the insurer's medico-legal evidence which
either concluded that the plaintiff did not have a permanent
impairment or that the cause of his problems was multifactorial. In
the end the Plaintiff was awarded $164K in damages.
As identified by the trial judge, the assessment of damages for
personal injury depends to a very large extent on a plaintiff's
honest reporting of his or her symptoms. As insurers are painfully
aware, even in the case of invisible injuries it is exceedingly
difficult to prove that a plaintiff is not telling the truth.
In this case the judge formed the view that the collateral
evidence was too speculative to not accept the plaintiff's
evidence. Particularly given the plaintiff appeared to treat the
entire process with disrespect and materially lied in respect of
the claim itself, we would respectfully ask the question whether
there was any reason to believe the plaintiff.
We understand that this matter has recently been appealed and
insurers would no doubt be hopeful of a more favourable result on
appeal. More to come.
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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