GHINIS v PIZZARO [1995] NSWCA 171

GHINIS v PIZZARO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY and PRIESTLEY JJA 4 December 1995, 4 December 1995

[1995] NSWCA 171

MOTOR VEHICLE ACCIDENT — PERSONAL INJURIES — ASSESSMENT OF DAMAGES — FINDING OF FACT NOT SUPPORTED BY EVIDENCE

MOTOR VEHICLE ACCIDENT — PERSONAL INJURIES — ASSESSMENT OF DAMAGES — FINDING OF FACT NOT SUPPORTED BY EVIDENCE — NEW TRIAL ORDERED — appellant injured in motor vehicle accident — at trial adduces written medical report — report states appellant suffering from psychiatric illness — no psychiatric report tendered by respondent — in cross- examination appellant does not concede untruthfulness or inaccuracy — trial judge finds that there is no causal connection between psychiatric illness and accident — on appeal Held: on materials before trial judge only reasonable conclusion was that there was a causal connection between the psychiatric condition and accident — trial judge therefore in error — orders below set aside and new trial ordered.

5. Respondent to have a certificate under the Suitors' Fund Act if entitled.

Priestley JA The appellant in this appeal was injured in a motor vehicle accident on 13 December 1990. The respondent admitted liability. At the trial before his Honour Judge McDevitt of the District Court, the appellant claimed to be suffering still from his accident injuries. In addition to the medical evidence concerning his physical state, there was also psychiatric evidence from Dr Keshava that he was suffering quite severely from post traumatic stress disorder.

The only witness to give evidence at the trial was the appellant. Medical reports were tendered by both sides. There was also evidence, by way of expert report, from both sides as to economic loss. The medical practitioners were in conflict about the genuineness of the appellant's physical symptoms. Dr Matheson, for example, whose reports were tendered by the respondent, said, in his later report, that, upon examination of the appellant by him, there was a ridiculous performance of exaggeration of symptomatology. No psychiatric report was tendered by the respondent in answer to Dr Keshava's report.