MVA: Ex Hells Angel not a pathological liar, but prone to ‘colouring’ explanations

Mashaghati v Anderson & Allianz [2016] QDC 245

Morzone QC DCJ

Liability was admitted, but credit, causation and damages were in issue.

The subject injury occurred in 2011 when the plaintiff collided with a stationary vehicle after taking evasive action to avoid collision with the first defendant. The collision was caused by a negligent U-turn performed by the first defendant which placed him in the plaintiff’s path. As a consequence, the plaintiff suffered multiple injuries including to his head, spine and ankle. The plaintiff asserted that he was unable to work in a full-time capacity as a result of the accident.

The issue for Morzone QC DCJ was whether it was more probable than not that there was a causal relationship between the defendant’s negligence and the plaintiff’s impairment. Damages were also to be assessed.

The defendants sought to discredit the plaintiff’s reliability, highlighting the plaintiff’s history and demeanour during the video-link testimony. Before considering causation, His Honour dealt with the assertions of credit. He said:

[26] The plaintiff’s past offending, his connections and associations with criminals and gang members, and his knowledge of drugs are tantalisingly interesting and unusual.  However, there is insufficient basal evidence to draw inferences to the effect that the plaintiff had a predilection or motive to lie and even less so, that the plaintiff was dishonest in relation to this case.  It is too great a leap and speculative to tar the plaintiff with guilt by association.

[35] Whilst his demeanour occasionally appeared arrogant, argumentative and curt, much of this was manifest by his heavy accent, passionate personality and the style of cross-examination … My impression was that he was otherwise an unrehearsed and spontaneous, yet candid, witness.

[37] However, I think the plaintiff has an overly optimistic perception of his pre-accident condition and work capacity, and has an overly pessimistic perception of his future capacity due to the accident … Whilst he was not shown to be a “notorious” or “pathological” liar, his credit was diminished and there was inaccurate reporting to medical practitioners.  I will give the plaintiff’s evidence lesser weight where he seemed unreliable and unsupported by other testimony or documents.

Causation

After discussing each of the plaintiff’s injuries, Morzone QC DCJ found that it was more probable than not that there was a causal relationship between the first defendant’s negligence and the plaintiff’s impairment. Citing March v E & MH Stramare Pty Ltd, His Honour stated that:

[39] The relevant question is whether the first defendant’s negligence was so connected with the plaintiff’s loss or damage that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.

Finding that there was a causal connection between the prevalent injuries and the first defendant’s negligence, His Honour ascribed an Injury Scale Value to each injury as follows:

 

Injury ISV
Head injury 15
Teeth injury 8
Psychiatric injury 6
Ankle injury 5
Back injury 1

The subject of His Honour’s extended discussion was the plaintiff’s economic loss suffered as a result of the accident. As the plaintiff was unable to precisely prove damage the defendants submitted that a nil assessment should be made pursuant to Thomas J’s judgement in Malec v J C Hutton Pty Ltd. In relation to this, Morzone QC DCJ said:

[101] Here the plaintiff has shown some physical and mental disability from an accident which have reduced his working capacity and are likely to realise economic loss.

[105] The plaintiff will have a continuing difficulty performing the heavy aspects of mechanical work and he is likely to suffer economic loss and be disadvantaged in the open labour market.

Judgement was entered for the plaintiff with damages assessed as follows:

 

General damages $30,600.00
Past Economic Loss $31,400.00
Interest $1,336.73
Past Superannuation Loss $2,983.00
Future Economic Loss $75,000.00
Future Superannuation Loss $8,497.50
Past Special Damages & Interest $500.00
Future Special Damages $13,760.00
Past and future care and assistance $0.00
Total $164,077.23

David Cormack – Brisbane Barrister & Mediator

NB:

Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127

Appeal allowed in respect of the evidence of Ms Anderson & Dr Mathews

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