MVA: impact of over presentation on credibility and damages

Hunt v Lemura & Anor [2011] QSC 378

Justice Henry considered at length the Defendant’s claims the Plaintiff had been dishonest in not disclosing chiropractic treatment and other motor vehicle incidents. On balance Justice Henry considered that the Plaintiff’s “self editing” as to what she thought was relevant and the intrusion of her psychological influences did not amount to dishonesty, but:

[14] As will be seen, such issues as there are with Mrs Hunt’s credibility appear to result from a lack of reliability on some aspects rather than dishonesty. That does not make the consideration of these issues any less important. In Bell v Mastermyne Pty Ltd[37] McMeekin J observed:

“The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting – of his or her symptoms; of their impact on the plaintiff’s life; of pre-existing problems; of the genuineness of effort to regain employment after injury; and of their capacity to maintain employment. These are all difficult issues for a defendant to thoroughly investigate and test. In truth no-one knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities” [38]

[74] In the upshot, while there is persuasive evidence of over-presentation on Mrs Hunt’s part when examined last year the probability is that it was a product of psychological factors rather than dishonesty. That said, the fact of over-presentation detracts from the reliability of Mrs Hunt’s lay ability to self assess her symptomology.

Justice Henry considered the latest 3 medical reports from the Defendant to be more reflective of the Plaintiff’s ongoing symptoms than the earlier reports. The relevance of these reports was that they opined the Plaintiff’s injury had resolved or largely resolved by the time of their examinations. The impact of this was it premised Justice Henry’s view of when past loss of income ceased, together with General Damages.

General Damages

I refer you to paragraphs [90] – [117] in relation to the assessment of General Damages. His Honour considered the totality of the medical evidence not just the most recent reports to assess an ISV 10 ($11,000), despite the 0% impairment consistent with the latest reports. Notably, Justice Henry also allowed for an “adverse psychological” reaction:

[103] Section 5 of Schedule 3 provides:

“5 Adverse psychological reaction

(1) This section applies if a court is assessing an ISV where an injured person has an adverse psychological reaction to a physical injury.

(2) The court must treat the adverse psychological reaction merely as a feature of the injury.”

[104] The requirement that an adverse psychological reaction to a physical injury be treated “merely” as a feature of the injury means that the adverse psychological reaction is not to be treated as if it is a separate injury, for instance as one of the categories of mental disorders listed in Schedule 4. This is made clear by the Regulation’s Schedule 7 Dictionary, which provides that “adverse psychological reaction” does not include a mental disorder. The Dictionary provides that “mental disorder” means a mental disorder recognised under the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM 4”).

[105] There is evidence Mrs Hunt received treatment for depression experienced by her subsequent to the accident. Two psychiatric reports by Dr Jon Steinberg, psychiatrist, were tendered at trial[138]. Dr Steinberg opined that as a result of her pain she developed symptoms consistent with a major depressive disorder diagnosed by him as meeting DSM 4 but regarded by him as being in full remission by his report of 25 February 2009. However he considered she required treatment with anti-depressant medication for the following eighteen months. He also opined she would benefit from a further five sessions with a clinical psychologist, Carolyn Richie, “to assist her in her adjustment to the management of pain”[139] but it appears she only had a further two sessions with Ms Richie, on 27 May 2009 and 16 June 2009[140].

[106] Mrs Hunt’s major depressive disorder must be disregarded in assessing general damages in that a psychiatric injury is not pleaded and it exceeds the defined scope of an adverse psychological reaction that can be taken into account in assessing the ISV of the physical injury.

[107] Pain was clearly caused by the injury and the evidence suggests Mrs Hunt did have an adverse psychological reaction, some aspects of which can reasonably be regarded as falling short of a mental disorder. For instance, she asserts the pain symptoms from the injury made her frustrated, emotional, irritable, exhausted and unmotivated[141] and impaired her ability to concentrate[142]. However Dr Weidmann opined her lack of energy and concentration was not related to the physical injury and may be related to anxiety[143]. It is a reasonable inference that Mrs Hunt’s adverse psychological reaction derived partly but not exclusively from the physical injury.

[108] More broadly, it is apparent that Mrs Hunt’s pain, suffering and loss of amenity of life, while significant, should not be regarded as having continued to result solely from the physical injury. In my view her over-presentation to examining experts in 2010 and the marked disproportion at that time between her injury and the significant symptoms to which she laid claim indicates that by that era the contribution of psychological factors, only some of which derived from the physical injury, had become more significant than the physical injury as an ongoing cause of the symptomology to which she laid claim. However sight must not be lost of the fact that prior to that era she had already endured very significant pain and suffering from her injury.

Future economic loss

[150] There are however a number of problems caused by the injury which diminish her future earning capacity. Given their nature they do not permit a precise assessment and a global approach to the assessment is inevitable. Reference to them involves some theoretical consideration of what her future lost earnings might be, however, it is the loss of earning capacity rather than the loss of earnings which I am endeavouring to address.[156]

[151] Firstly the above-discussed adverse contingencies bearing upon her successfully seeking part-time work are also relevant to her successfully seeking full-time work. On the one hand she was not guaranteed full time work so it cannot be assumed that but for the injury there would have been no delay at all in her securing full time employment as soon as her youngest child started high school in 2012. On the other hand, in consequence of the injury and her past work-related problems arising from it she is a less competitive applicant than an applicant without such a history. Also she would need to be more discerning that the average office worker as to the physical demands of prospective full-time positions so as to reduce the risk of renewed injury. For the purposes of developing some indication of a global award for future economic loss I would infer a delay of six months as the period she would take, additional to normal delay, to find full-time work that she otherwise would have started had she not been injured. I assume she would already have resumed working part-time back on 1 July 2011. Thus I would allow the difference between her likely part-time and full time-time net income for six months from 2012 as representing a loss of future earning capacity. Adopting the net part-time and full-time weekly income figures in the relevant part of Schedule G to the quantum statement, of $500 and $700[157] respectively, the weekly difference of $200 net over a six month period, ie 26 weeks, would be $5,200.

[152] Secondly, none of the experts whose evidence I favour gave specific consideration to whether or by when Mrs Hunt would be fit for full-time work. Since I accept the expert opinion the injury had resolved I readily infer Mrs Hunt will be physically able to perform full-time work. However, I do not have the benefit of evidence of whether she will be physically able to do such work from the outset of next year or whether some further time would be required. I would take the precaution of allowing some added time. Given my acceptance of the evidence that her injury has resolved it can be reasonably inferred an allowance of a further period of six months would be ample. By reference to the above calculation that would equate to a further $5,200 indicative component of economic loss.

[153] The third aspect to Mrs Hunt’s lost future full-time earning capacity derives from her potentially heightened vulnerability to the injury being aggravated, causing her to be unable to work full-time for periods beyond her accrued sick leave entitlements and possibly causing periodic loss of employment. The experts whose opinions I have preferred did not expressly acknowledge that risk. However their evidence does imply an element of some risk of further difficulty. For instance Dr Weidmann’s emphasis on the need for employment that does not require repetitive bending or lifting[158] implicitly acknowledges such activity may cause physical problems for Mrs Hunt. Dr Toft does not consider her injuries would be “detrimentally affected” but does acknowledge the possibility her symptoms could be “exacerbated”.[159] Dr Burke reported it was likely she would “experience and report symptoms if she did return to the workforce”. Having regard to those comments in combination with the common knowledge of the human condition that past injuries that have resolved can be re-enlivened or aggravated, it is reasonable to allow for some future economic loss based on the above risk. That evidence of the diminution in future full-time earning capacity is not as significant as in some other cases where awards of $40,000 to $50,000 have been made for this aspect.[160] I would allow $35,00 for this aspect.

[154] Considering the above three indicative considerations collectively I conclude the appropriate global figure for future economic loss is $45,000. I note counsel for Mr Lemura and AAMI conceded an award of $40,000 was appropriate.

[155] I award $45,000 for future economic loss.

[172] In summary my assessment of damages is:

General Damages $11,000.00

Special Damages $11,000.00

Interest on Special Damages $ 385.16

Past Economic Loss $54,856.08

Interest on Past Economic Loss $ 4,866.00

Past Superannuation $ 4,937.08

Future Economic Loss $45,000.00

Future Superannuation $ 4,050.00

Future Treatment and Medical Expenses $ 4,500,00

Total $140,594.32

Brisbane Barrister – David Cormack

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