Psychiatric injury (mva): credit and causal connection/break – unreliable set of facts

Phillips v Everingham & Anor [2010] QSC 374

CATCHWORDS: DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where plaintiff claimed damages for psychiatric injury as a result of a motor vehicle accident – where liability admitted – whether plaintiff was a witness of credit – whether there was an evidentiary basis to support the plaintiff’s claim for psychiatric injury

Issues:

The credibility of the plaintiff and in particular, his reporting and complaint of a psychiatric injury based on one set of assumed facts as a result of a motor vehicle accident, were in dispute.

McMeekin J

[3] Mr Phillips suffered injuries to his neck and right wrist. Whilst symptoms were initially acute those physical injuries have resolved and did so relatively quickly. The dispute relates to a claimed psychological injury.

[4] The plaintiff’s evidence was that about three months after the subject accident, and following an incident with a truck at an intersection at Habana near Mackay, he commenced to experience insecurity and anxiety which steadily worsened. The three month delay in onset of any symptoms is plainly not right – the plaintiff saw a psychologist, Ms Fisher-Nusenu, who performed an assessment on 13 October 2006. That is within three weeks of the accident. There is no mention of the Habana truck incident. He is described as then presenting in a “very anxious state” and displaying “severe symptoms of anxiety”.

[5] The plaintiff says that he subsequently developed a constellation of symptoms. They included the scratching of his skin whilst asleep to the point of drawing blood, excessive flatulence and faecal incontinence, urinary urgency, loss of libido and an inability to achieve an erection. He had poor concentration, irritability, restlessness, and recurrent thoughts of the accident. He became socially withdrawn and went out only when completely necessary. He developed what he describes as “obsessive compulsive behaviours”[1] that included “strange ritualistic patterns”[2] before his day could start, such as sweeping his flat from North to South and East to West. He would avoid driving on cloudy days when rain might be threatening, and avoided driving in congested areas. He drove only between 10am and 2pm “as there was better visibility”[3] then. He would hear voices in his head and would count numbers. He suffered from broken sleep. His memory for both short and long term matters was affected.

The Plaintiff’s Credit

[13] Thus at the heart of the dispute lies an assessment of the plaintiff’s credit. Any psychiatric diagnosis depends on an acceptance of the presence of the significant symptoms of which he complains. If the plaintiff can be believed then he will make out his case. If he is unreliable then it is necessary to consider whether his mother, his only supporting witness, fills the evidentiary gap.

His Honour considered the plaintiff’s singularly unimpressive criminal history, dishonesty in relation to employment and taxation returns, together with surveillance DVD footage showing capacity outside of that stated by the plaintiff and concluded:

[21] Those coincidences have to be judged against a background of long term drug use. Again Mr Phillips’ evidence was not easy to follow on this subject. It is evident however that he has told medical practitioners that he has engaged in the consumption of marijuana, ecstasy, amphetamines and heroin through his life. It may be that Mr Phillips would deliberately mislead medical practitioners by exaggerating his past illicit drug use, but that certainly does not encourage any positive view as to his credit worthiness. His drug consumption started, it would seem, when he was aged about 15 years. It seems probable that at some time in his life his consumption of marijuana has been very high. That follows from the apparently independent recording by two medical practitioners of a history of smoking up to 20 cones per day.[13] Mr Phillips denied that his drug consumption was at that level.

[22] It was submitted that this coincidence of recording could be explained by the possibility that the second medical practitioner copied the history from the records of the first. There are three difficulties with that submission – first, the records of the second practitioner do not record the receipt of the records of the first but do record the receipt of records from another practice. The inference is available that in the usual course the receipt of records is noted. Second, the plaintiff did not call the second practitioner to prove the point and could easily have done so. Third, the two histories, whist they bear the same general information about the level of the daily drug consumption, are quite different in the particulars suggesting an independent taking of them.

[23] It was plain that Mr Phillips regarded it as of no great moment that he consumes illicit drugs.

[27] The reliance on the inaccurate reporting of his past injuries and criminal record to prospective employers as indicative of unreliability is a two edged sword in these cases. It is hardly novel to hear evidence of workers who do precisely that. I appreciate that such misrepresentations can indicate a very strong desire to work. However gross misrepresentation of past employment history to pretend to qualifications one does not possess indicates a disregard for any need to be constrained by the truth. His response when questioned about so misrepresenting himself was that “[e]verybody does”.[16] The extent of the misrepresentation suggests that Mr Phillips will say whatever he needs to say to achieve his ends.

[28] Mr Phillips’ performance in the witness box did nothing to enhance my view of his credit. He was a singularly unimpressive witness. His manner of giving evidence and the contents of his responses did nothing to encourage any belief in his statements. He was argumentative and evasive. His responses suggested at times that he was uncaring about the accuracy of his answers.

[29] I have borne in mind that if the plaintiff does have a psychological disorder then that might well affect the way that he portrayed himself both to the court and to practitioners. However that explanation does not explain some responses.

[30] It is evident that Mr Phillips grossly exaggerated past events. Two examples were his account of a prior back injury and the effects of a buggy accident on Hamilton Island. In relation to the latter incident he claimed to be in a coma for three days where the medical records make it plain that whilst he was apparently rendered unconscious he was plainly not unconscious for very long. In relation to the former incident he asserted in his evidence that he suffered severe low back pain when he was required to work in a bent over position (which he demonstrated) working at ankle level for 8 hours.[17] The contemporaneous WorkCover records indicate that he was working in a squatting position for about 45 to 55 minutes.[18] While these exaggerations have no direct affect on the damages assessment they demonstrate an unreliability in his recounting of his past that again encourages no confidence in his reliability on essential matters.

[31] Reference was made to his taxation returns and his evidence of his cash earnings. When acting as a personal trainer he proffered to his clients a reduced rate if paid in cash to avoid the impost of taxation. He appeared to be unembarrassed by this dishonesty.[19]

[33] That the plaintiff would not be greatly concerned about inaccuracies in his return I think is plain. The evidence added to the general impression of a lack of confidence in the reliability in anything the plaintiff asserts.

[39] On the DVD footage the plaintiff appears throughout to be behaving perfectly normally and indeed to be enjoying everyday outdoor activities. He goes to the beach, he surfs, he drives at various hours of the day and not restricted to the hours mentioned to doctors, he jogs and plays tennis, he is with his girlfriend and at times they hold hands and hug, he goes to social occasions, he appears on one occasion when at a café to be engaging animatedly in conversation with his companions.[27] He is active between 6am and 10 am and drives on apparently overcast days.

[40] While DVD footage such as this may not conclusively be able to prove or disprove the existence of a psychiatric illness, the plaintiff’s behaviour on the 15 random days that he was filmed over an eight month period suggests that there is little wrong with him.

[41] Fifthly, the DVD evidence strongly suggests that an important part of the plaintiff’s claims are false. The difficulties that the plaintiff claimed to have with driving were an integral part of his case. He told Dr Chau in December 2007 that he was “hypervigilant” when a driver or passenger, that each time he was driving he was “risking his life” and that he only drove between 10am and 2 pm or when rain was not threatening because conditions of visibility were better.[28] In June 2009 he gave a similar account to Dr Murray.[29] In August 2009 he told Dr Chau that he was improved such that he could drive in daylight hours but nonetheless, on her report, said: “I’m the most cautious driver there is. It’s an effort for me to drive.”[30] Film taken on 10 December 2008 shows the plaintiff placing a dining table on the top of the roof of his car and then to drive off with it so positioned, he holding it in place with his right hand whilst steering with his left.

[42] To the lay mind that would appear to be completely at odds with his claimed condition. So it appeared to the psychiatrist Dr Chau who said of this footage:

“I must say the most important part of what I have seen in the footage is – it was just astounding that he had loaded up a table on top of his car – this would not happen with someone with a significant anxiety problem about driving – a post traumatic stress disorder. It doesn’t even look like he has put any ropes or anything to tie it on the top and instead he’s just driving one-handed, with one hand holding onto the table. I’ve never ever seen someone with a significant anxiety disorder with driving or post traumatic stress disorder related to a motor vehicle accident, driving like that. I would have said that was quite reckless actually.”[31]

[45] I am conscious of the points made by Mr Philp in his submissions. DVD evidence in cases of psychiatric injury has limitations. Care needs to be exercised in assuming what he meant to convey by his descriptions. There is the possibility of misunderstandings. And the plaintiff should not be too harshly judged on issues that are more relevant to unassisted memory of events long ago.

[46] Bearing all that in mind I conclude that the plaintiff was a witness not worthy of credit.

In relation to the plaintiff’s mother, his Honour found:

[52] The effect of Mrs Knezevic’ evidence was that the plaintiff was significantly changed after the subject accident. She compared her son’s condition before and after the subject accident in these terms: “he was proud before the accident, he was – he was – he was a man. He was a proud man. He was very pleased with himself and now he’s like a child. I just want to get help for Ben.”[41] She had closed her art gallery to care for and supervise the plaintiff. His condition had taken its toll on her. She had seen nothing to suggest that his symptoms were not genuine.[42]

[53] Mr Philp’s submission was that acceptance of this evidence provides sufficient corroboration of the plaintiff’s evidence and should thus lead to an acceptance of the conditions diagnosed by the psychiatrist Dr Chau and hence to an acceptance of a significant disability sufficient to justify a substantial award of damages based on a presumed loss of earning capacity as an operator in the mines over a 10 year period.

[54] There are several difficulties with this submission.

[55] First, while I accept that Mrs Knezevic was an honest witness, that does not meet the possibility that her son was putting on an act for her.

[56] Secondly, assuming the presentation to the mother was genuine, and I do not make that assumption, it does not mean that symptoms reported by the plaintiff but not observed by Mrs Kenesevic ought to be assumed to be true.

[57] Thirdly, neither Dr Chau nor Dr Murray was asked to consider Mrs Knezevic’ account of the symptoms she observed and, based solely on that evidence, express a view as to the presence or otherwise of any psychiatric disorder and its causal relation to the subject accident. It by no means follows that a diagnosis or prognosis based on one set of assumed facts would be maintained on a differing set of assumptions. On a similar basis the plaintiff’s claim was rejected in Midwest Radio v Arnold.[43]

Conclusion

[58] Mr Phillips’ description of the mental disorders he purports to suffer is fundamentally unreliable. There is no expert evidence to support any psychiatric disorder that can be causally linked to the subject accident. There is therefore no basis upon which I can find that the plaintiff suffered psychiatric injury as a result of that accident.

[59] Counsel are agreed that should I reject the plaintiff’s claim to having suffered psychiatric injury, damages should be assessed as outlined by the defendants’ counsel:

Pain, suffering and loss of amenities of life (ISV 4) $4,000.00
Fox v Wood (WorkCover refund) $7,004.32
Total Damages $11,004.32

 

Brisbane Barrister – David Cormack

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