PT v SHOREY [2001] NSWCA 127

New South Wales Court of Appeal

CITATION : PT v SHOREY [2001] NSWCA 127 revised - 13/06/2001 FILE NUMBER(S) : CA 40168/00 HEARING DATE(S) : 26 April 2001 JUDGMENT DATE : 7 June 2001

PARTIES : P T LIMITED (as Trustee for McNamara Property Trust) v SHOREY & Ors JUDGMENT OF : Handley JA at 1; Powell JA at 70; Davies AJA at 71

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8770/97 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

COUNSEL : C G Gee QC/P S Jones (Appellant) A S Morrison SC/A C Casselden (Respondents) Price Waterhouse Coopers Legal (Appellant) SOLICITORS : Stacks The Law Firm (Respondent 1) Stewart Cuddy Mockler (Respondent 2) CATCHWORDS : PERSONAL INJURY - damages - credit based finding that plaintiff not malingerer may not be overturned - causation - finding as to causal link between fall and conversion disorder may be overturned Abalos v Australian Postal Commission (1990) 171 CLR 167 CASES CITED: Jones v Bartlett [2000] 75 ALJR 1 Warren v Coombs (1979) 142 CLR 531 Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 HL DECISION : Appeal allowed. Orders made

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40168/00 DC 8770/97 HANDLEY JA POWELL JA DAVIES AJA

7 June 2001

P T LIMITED (as Trustee for McNamara Property Trust) v ROSE SHOREY & ORS PERSONAL INJURY - damages - credit based finding that plaintiff not malingerer may not be overturned - causation - finding as to causal link between fall and conversion disorder may be overturned The respondent suffered soft tissue injuries to her back in a fall. After some years she claimed that she could not walk. It was common ground that there was no physical reason why she could not walk. The appellant was found liable for the respondent's injuries. Dodd DCJ assessed the plaintiff 's damages at $555,212.55. The defendant appealed seeking a drastic reduction of the damages. The plaintiff cross-appealed seeking a massive increase in her damages. The major issues in the plaintiff 's case on damages were whether she was a malingerer and, if she was genuine, the question of causation. The Judge found that she was not a malingerer and that she suffered from a conversion disorder which arose from unresolved psychological conflict, and that the fall was a contributing cause of her disorder. HELD, allowing the appeal (Davies AJA dissenting): (1) The Judge's conclusion that the plaintiff was not a malingerer could not be disturbed: Abalos v Australian Postal Commission (1990) 171 CLR 167. (2) The Judge's conclusion that a causal link was established between the fall and the conversion disorder was not based on his findings as to credit. It was an inference he drew from his primary findings with the benefit of the expert evidence. As such it was open to review on a re-hearing: Warren v Coombs (1979) 142 CLR 531. The plaintiff had not discharged the onus of proving a causal link between the fall and her conversion disorder and the appeal therefore succeeded. ORDERS (1) Appeal allowed;