Don’t Ask Me: Properly Proofing Your Client To Give Evidence


The District Court recently examined the reliability of a plaintiff’s evidence at trial in the case of Hollier v Bettesworth [2017] WADC 108.

Background

The Plaintiff was involved in motor vehicle accidents on 7 December 2013 (first accident) and 21 November 2014 (second accident).

As a result of the first accident the Plaintiff claimed to have suffered an adjustment disorder, mood changes, headaches, and symptoms in the neck, nose, chin, left shoulder, and left elbow. The second accident did not cause any significant injury, and it was conceded that a claim for this would not exceed the statutory threshold for non-pecuniary loss.

The Plaintiff had various treatments, including shoulder surgery. In the six months prior to trial, she reported to various doctors that her symptoms were worse than they had been before.

Psychiatrist Dr De Felice reviewed the Plaintiff and diagnosed an adjustment disorder with depressed mood, as well as a panic disorder and PTSD, based upon the Plaintiff’s reports of nightmares, flashbacks, and physiological reaction to reminders of the accidents. Psychiatrist Dr Mander reviewed the Plaintiff and did not diagnose PTSD as, whilst the Plaintiff described anxiety and avoidance of motor vehicles, she did not report a history of nightmares or flashbacks.

Legal issues

Liability was admitted, with the trial being on quantum only, and a key issue at trial was the reliability of the Plaintiff’s evidence as to the nature and degree of the injuries she allegedly sustained.

The Defendant submitted that the Plaintiff’s evidence was unreliable, and that the conclusion to be drawn was that she had recovered to a greater extent than she acknowledged (i.e. she was trying to increase her award of damages). This was on the basis of the Plaintiff’s dispassionate reporting of the circumstances of the accident and her failure to give evidence about a number of her physical injuries.

Findings

Staude DCJ found the Plaintiff to be a poor witness, who gave:

…scant and bland evidence of the accident. This struck me as somewhat at odds with the allegedly profound psychological effects of it.

His Honour noted variability in the Plaintiff’s reporting of symptoms, in particular with regard to her reporting of flashbacks, nightmares, and intrusive memories to Dr De Felice, but that she made no mention of this to Dr Mander or when giving evidence at trial. His Honour ultimately found that, whilst the Plaintiff was a poor historian and inattentive to detail, she had not been purposefully dishonest nor had she exaggerated her symptoms deliberately. He considered the Plaintiff would have been more fulsome in her evidence and given more detail of her symptoms had she in fact been trying to increase her award of damages.

Summary

This decision is an interesting example of where inconsistencies and insufficient detail in a party’s evidence can detract from an otherwise straightforward case. As His Honour noted, a history given to a medical practitioner is not sufficient to prove symptoms/disabilities alleged, and it is necessary for a plaintiff to be thoroughly proofed before pleading the claim to ensure that all issues are set out accurately and fully, and that all the evidence relating to those issues is obtained before trial. The case also highlights the need for the adequate proofing of witnesses to ensure their evidence is cogent and consistent with the other evidence before the Court. In the words of Staude DCJ:

…at one point in her evidence-in-chief it seemed as though she had not been proofed properly, or at all.

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