Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mulligan v The Nominal Defendant [2021] NSWCA 222 Hearing dates: 20 August 2021 Date of orders: 17 September 2021 Decision date: 17 September 2021 Before: Macfarlan JA; Emmett AJA Decision: Summons seeking leave to appeal dismissed with costs. Catchwords: APPEALS – application for leave to appeal – proposed appeal has no significant prospect of success – no issue of principle – no question of general public importance Cases Cited: Brown v Lewis (2006) 65 NSWLR 587; [2006] NSWCA 87 Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 Category: Principal judgment Parties: Violet Evelyn Mulligan (Applicant) The Nominal Defendant (Respondent) Representation: Counsel: A Canceri (Applicant) K Rewell SC (Respondent) Solicitors: CMC Lawyers (Applicant) Hall & Wilcox Lawyers (Respondent) File Number(s): 2020/347791 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 3 December 2020 Before: Wass SC DCJ File Number(s): 2016/282581 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: This is an application by Ms Violet Mulligan for leave to appeal against what she alleges is the inadequacy of a $500 judgment given in her favour. The judgment was entered pursuant to a decision of Wass SC DCJ dated 3 December 2020 addressing a claim by Ms Mulligan for personal injury damages arising out of a motor vehicle accident that occurred on 14 February 2014. 2. Ms Mulligan was injured in the accident and an unknown driver was found by her Honour to be at fault. The decision on liability is not challenged on appeal. 3. Ms Mulligan did not make a claim for economic loss, and her whole person impairment ("WPI") as a result of the accident did not reach the threshold percentage of 10% that would have enabled her to make a claim for non-economic loss. As identified by her counsel in this Court, Ms Mulligan sought a total of about $90,000 in damages at first instance, referable to domestic assistance and treatment expenses. 4. In her judgment, the primary judge carefully examined the medical records and reports before her and, with the benefit of lengthy cross-examination, formed adverse views as to Ms Mulligan's credibility and reliability. Her Honour's ultimate conclusion as to Ms Mulligan's evidence was expressed as follows: "As to the extent of that injury and its effect on the plaintiff over time, whilst none of the medical experts found the plaintiff to be positively exaggerating, it remains the fact that it is a matter for me, on the whole of the evidence, to come to a determination as to whether or not she is exaggerating her symptoms or overstating her limitations. For the reasons that I have set out, I have come to the conclusion that on many occasions the plaintiff has exaggerated her symptoms and limitations and has attributed many things to the accident which I am not satisfied are capable of being attributed to the accident. She has been a most unsatisfactory witness, and I found her evidence generally to be unreliable." 1. Her Honour concluded that Ms Mulligan's physical injuries caused by the motor vehicle accident were limited to "mild soft tissue injury in the area of [her] cervical spine" (at [70]) and, contrary to Ms Mulligan's case, that she did not suffer any psychological injury as a consequence of the accident. As a result, her Honour's award of damages was limited to $500 for past out-of-pocket expenses. Her Honour declined to make an award in respect of future medical expenses or in respect of past and future domestic assistance. 2. Ms Mulligan seeks leave to appeal on the following four grounds: Ground 1: the primary judge ignored the opinion of the Review Panel of the Medical Assessment Service (MAS) dated 9 April 2018 1. Whilst the Review Panel did not find that Ms Mulligan suffered a WPI of or above the threshold percentage of 10%, in a carefully reasoned certificate it did find that she had suffered 5% WPI. This reflected significantly greater injuries than the primary judge found to have been suffered. 2. The Review Panel appears to have largely, if not wholly, accepted the history given to it by Ms Mulligan but it did not have the benefit of the lengthy cross-examination of Ms Mulligan that occurred before the primary judge. Her Honour was therefore in a significantly better position to ascertain the truth about the extent of Ms Mulligan's injuries. In any event, the Review Panel, as was necessary, was acting for the limited statutory purpose of assessing a WPI whereas her Honour was charged with the task of determining both issues of liability and damages for the purpose of Ms Mulligan's District Court action. 3. Whilst the Review Panel's views were not irrelevant to her Honour's function, as her Honour stated in the passage quoted in [4] above, it was a matter for her "on the whole of the evidence, to come to a determination as to whether or not [Ms Mulligan was] exaggerating her symptoms or overstating her limitations". In performing this function, her Honour had to exercise "extreme caution" in using a statutory medical assessment such as that of the Review Panel for a purpose other than the award of damages for non-economic loss (see Brown v Lewis (2006) 65 NSWLR 587; [2006] NSWCA 87 at [23]). 4. Her Honour was clearly cognisant of the decision of the Review Panel as it was referred to twice in the primary judgment but, in light of the matters to which I have referred above, its reasoning was of limited weight and her Honour did not err in not expressly referring to the detail of it. Ground 2: the primary judge erred in finding the applicant had not suffered a psychological injury as a result of the relevant accident 1. As noted above, the primary judge carefully assessed the medical evidence before her, as well as the credibility and reliability of Ms Mulligan. Whilst the weight of medical opinions favoured the conclusion that Ms Mulligan suffered a psychological injury as a result of the accident, it is plain that those opinions would have been significantly influenced by an acceptance of Ms Mulligan's description of her history and symptoms. Once the primary judge had determined that her descriptions could not be trusted, it was well open to her Honour to conclude, consistent with the opinion of one of the experts, Dr Vickery, that Ms Mulligan did not in fact suffer any psychological injury as a result of the accident. Ground 3: the primary judge erred in finding that in the weeks following the accident Ms Mulligan no longer suffered from neck, shoulder and arm pain 1. In support of this proposed ground of appeal Ms Mulligan relies particularly on Dr Crowle's observations, contained in reports of 19 February 2015 and 17 May 2017, that Ms Mulligan showed "clinical signs of muscle guarding". These observations did not in themselves establish that there was a relevant injury at that time and, in particular, that it was caused by the accident of February 2014. Bearing in mind her Honour's conclusions that Ms Mulligan exaggerated her symptoms, that there was no treating medical evidence of "any ongoing physical disability" and that at an intervening point of time Assessor Harrington did not find any muscle guarding, her Honour was entitled not to regard Dr Crowle's observations as of decisive significance. Ground 4: in assessing Ms Mulligan's credibility and reliability, the primary judge failed to take into account Ms Mulligan's psychological state 1. Although finding that Ms Mulligan had not established that the incident had caused her to suffer a mental health condition, the primary judge did consider that, for whatever reason, her "mental health… deteriorated in the period after the accident", "particularly in the last few years". Her Honour was well aware of this when she expressed adverse views concerning Ms Mulligan's credibility and reliability. No further reference to her mental health was required, particularly when, according to the applicant, the issue was brought to the primary judge's attention in oral submissions and it cannot therefore have been overlooked. Conclusions 1. For the above reasons, Ms Mulligan's proposed appeal does not have any significant prospect of success. In those circumstances, and as it does not raise any issue of principle or question of general public importance, her summons seeking leave to appeal should be dismissed with costs (see generally Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 at [12] and see Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 at 2-4 as to the rationale for a monetary limit being imposed in respect of rights of appeal). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2021