PHILLIPS v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1995] NSWCA 368

PHILLIPS vy NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and COLE JJA 8 August 1995, 8 August 1995

[1995] NSWCA 368

PERSONAL INJURIES — CONFLICTING MEDICAL EVIDENCE — PLAINTIFF'S CREDIBILITY

PERSONAL INJURIES — CONFLICTING MEDICAL EVIDENCE — TRIAL JUDGE SHOULD MAKE FINDING OF PLAINTIFF'S CREDIBILITY — NEW TRIAL ORDERED — plaintiff injured in car accident — commences claim for damages — at the trial conflicting medical evidence concerning the extent of the plaintiff's injuries — trial judge says although plaintiff is not an impressive witness, he will not make finding of plaintiffs credibility — plaintiff awarded damages under various heads. Held: new trial ordered: in the circumstances of the present case, the conflict in the medical evidence could only be resolved by the trial judge reaching and stating conclusions as to the acceptability of the plaintiffs evidence — no adequate reasons given by trial judge for non-acceptance of some of the medical evidence — also, it was necessary before the trial judge made a finding of malingering, to consider the recognised distinction between deliberate malingering and "functional overlay"

ORDERS

1. Judgment below set aside.

2. New trial ordered.

3. Appellant to have the costs of the appeal.

4. New trial limited to the question of damages.

Prieslty JA This appeal presents difficulties which to my mind make it necessary for the court to order a new trial. Because that is the conclusion I will be arriving at I can state the difficulties without going into the detail of the evidence.

The appellant was injured in a car accident on 20 August 1984 when he was twenty-three. He commenced his claim for damages in the District Court in 1985. His case was heard by his Honour Judge Garling on 17 February this year. The respondent admitted liability and alleged contributory negligence, an allegation which the trial judge rejected. The principal issue was, therefore, the amount of the appellant's damages.