GONZALES v JAMES N KIRBY PTY LTD [1995] NSWCA 179

GONZALES v JAMES N KIRBY PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and COLE JJA 24 March 1995, 24 March 1995 [1995] NSWCA 179

PERSONAL INJURIES — ASSESSMENT OF DAMAGES — plaintiff hurt herself at work — issue before the trial judge became whether the plaintiff's claimed continuing symptoms were genuine — trial judge did not accept the genuineness of the plaintiff's symptoms. Held: on the evidence before his Honour there was a real issue whether the plaintiff's symptoms were functional, and not feigned; and further, whether they may have been partly feigned or exaggerated, but nevertheless still at least partly functional and stemming from the injury. The misunderstanding of certain evidence, the non-recognition of the functional overlay issue, and the consequent failure to explain why the functional side of the plaintiff's presentation was not accepted by the trial judge combine to make his Honour's judgment so flawed as to require that it be set aside.

Priestley JA This case falls into a familiar pattern. The plaintiff hurt herself at work in April 1985. She suffered a soft tissue injury to her neck. It was of a kind which doctors expect to clear up within a short time.

The plaintiff sought damages from her employer. Her case came on for hearing on August 1988. She claimed to have persistent and disabling pain in her neck and head, and associated symptoms. The employer's liability was not strongly disputed, and his Honour, Judge Downs QC of the District Court, found the employer liable for whatever damages the plaintiff suffered.

The issue in the case became whether the plaintiff's claimed continuing symptoms were genuine. Medical reports were tendered by both plaintiff and defendant on the issue. There was material in these reports entitling the trial judge to come to the conclusion that the symptoms were either feigned or genuine, but functional.