Shergold v Edwards  WADC 149 and Shergold v Edwards  150 both delivered 12 October 2016 highlight a number of issues relating to CTP litigation.
The plaintiffs were self-represented and appeared in person at their trials after having engaged four different law firms during the course of the court proceedings. The duration of the trials was four weeks.
The male plaintiff claimed nearly 4 million dollars in his amended particulars of damages and $4.7 million in closing submissions.
The female plaintiff, his wife, claimed 3.14 million dollars in her amended particulars of damages and nearly $3.9 million in her closing submissions.
The Plaintiffs claimed they sustained injuries as a result of a motor vehicle crash which occurred on 25 August 2007 when the Ford transit van in which they were travelling was struck in the rear by a Mitsubishi Magna. The defendant driver of the Magna conceded it was a forceful collision.
The male plaintiff claimed his injuries included a brain injury and a lower back injury. He did not specifically make a claim for depression, but had a history of depression and was under pharmacological treatment at the time of the crash. He also suffered from chronic asthma, sleep apnoea and was overweight.
He was a stonemason at the time of the crash and admitted he had little work in the first half of 2007. He was unfit for work at the time of the crash mainly because of lower back pain and depression due to work related stress and financial pressure. Former clients gave evidence relating to their dissatisfaction with work he had completed for them as a self-employed tradesman. His financial history included multiple bankruptcies, unorthodox invoicing and annual accounts. There was no evidence that he made any profit from his business in the three year period prior to the crash.
The male plaintiff did return to other forms of employment some months after the crash including as a console operator and then as a forklift driver for short periods, prior to ceasing all employment.
His Honour Staude DCJ accepted the evidence of Dr Home and Mr Hardcastle, who both examined the male plaintiff for the Insurance Commission, and concluded he was in any event not suited to unrestricted work as a stonemason because of symptomatic spinal degeneration and obesity. His Honour also accepted that he did not have a viable business at the time of the crash and that there was no evidence his business would have become profitable if not for the crash
The male plaintiff produced different sets of income tax returns completed by different accountants which contained discrepancies and some unlodged returns claimed significantly higher income.
His Honour states at 288:
“I do not find that he has necessarily fabricated his symptoms; rather that he has purposefully attributed to the crash symptoms not caused by it, exaggerated such symptoms as he has, and overstated his actual disabilities”.
At 307, His Honour stated, with regard to the claimed brain injury:
“… I find he has deliberately promoted this aspect of his claim in an attempt to recover unmerited compensation…”.
His Honour accepted the male plaintiff was suffering from psychiatric problems and this was not due to the crash but had been aggravated by the stress of years of litigation, the strain of family breakdown and financial pressure. His Honour also rejected claims that his requirement for medication for his crash related injuries caused tooth loss and sexual dysfunction.
His Honour found the male plaintiff had suffered soft tissue injuries of his cervical and lumbar spine as a result of the crash and assessed general damages at 12.5% of a most extreme case, ie $30,250. He was also awarded $22,200 for damages for past loss of earnings including interest to compensate him for a period of about five months from the date of the crash until he commenced work as a console operator in January 2008.
No award was made for future loss of earning capacity on the basis that his subsequent development of knee problems was more incapacitating now than any incapacity he suffered at the time of the crash. No further sums were awarded under any other head of damage.
The male plaintiff’s total award of damages amounted to $52,450.
His wife claimed injuries and His Honour awarded her a total of $20,100 (10% GDS). His Honour also ordered the parties to confer in relation to her claim for special damages totaling $11,221.20 in regard to which no proof was provided.
For more information on this Update please contact partner Ashley Crisp on (08) 9321 3755.
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