Glen v Sullivan

[2015] NSWCA 191

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Glen v Sullivan [2015] NSWCA 191
Hearing dates:	26 June 2015
Decision date:	09 July 2015
Before:	Beazley P at [1]; Ward JA at [2]; Sackville AJA at [3]
Decision:	1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal.
Catchwords:	DAMAGES – motor vehicle accident - pre-existing psychiatric condition – whether aggravation of pre-existing psychiatric condition ceased before trial – primary Judge finds that any aggravation of the pre-existing condition ceased before the trial – application of Watts v Rake and Purkess v Crittenden – whether the defendant had onus of adducing evidence that the causal relationship between the accident and the continuing disabilities had ceased – whether defendant satisfied that onus
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D Motor Accidents Compensation Act 1999 (NSW), s 131
Cases Cited:	Glen v Sullivan (District Court, 6 June 2014, unrep) Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Ridolfi v Hammond [2012] NSWCA 3 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Watts v Rake [1960] HCA 58; 108 CLR 158
Category:	Principal judgment
Parties:	Anna Glen (Appellant) Norman Patrick Sullivan (Respondent)
Representation:	Counsel: R Sheldon SC / Ms E Welsh (Appellant) K Rewell SC/ Ms M Kumar (Respondent) Solicitors: Brydens Compensation Lawyers (Appellant) QBE In House Legal Claims (Respondent)
File Number(s):	2014/189383
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 6 June 2014 Before: Letherbarrow SC DCJ File Number(s): 2013/230823

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was injured in a motor vehicle accident. The respondent admitted liability. The appellant claimed that she had suffered continuing physical disabilities and that the accident had aggravated her pre-existing psychiatric condition. The primary Judge found that the appellant had sustained both physical injuries and additional psychiatric disabilities as a consequence of the accident. However, he also found, partly on the basis of surveillance evidence, that both the physical injuries and the additional psychiatric injuries had resolved well before the trial. Damages were awarded accordingly. The appellant appealed against the damages award, principally on the ground that the respondent had not discharged the onus of disentangling the compensable from the non-compensable causes of the appellant’s continuing psychiatric disabilities.

Held (Sackville AJA, Beazley P and Ward JA agreeing), dismissing the appeal:

The respondent bore the onus of adducing evidence that the appellant’s psychiatric disabilities attributable to the accident had resolved before the date of the trial. But if the respondent did adduce such evidence, the burden of persuading the trier of fact on the balance of probabilities that the continuing disabilities were caused by the accident remained on the appellant. The medical evidence adduced by the respondent, was probative of the fact that any adverse psychiatric consequences attributable to the accident had resolved before the trial. Thus the respondent had discharged the onus identified in Watts v Rake and