Hoblos v Alexakis

[2021] NSWCA 126

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hoblos v Alexakis [2021] NSWCA 126

Hearing dates:

7 August 2020

Decision date:

23 June 2021

Before:

White JA at [1];
McCallum JA at [57];
Davies J at [195]

Decision:

(1) Appeal allowed.

(2) Set aside the orders of the District Court of 20 December 2019.

(3) Direct that within 28 days each party provide written submissions on the assessment of damages in accordance with these reasons, including as to whether damages can be assessed by this court or whether their assessment should be remitted to the District Court.

(4) Any submissions in reply are to be provided within seven days thereafter.

(5) Respondent to pay the costs of the appeal to date.

Catchwords:

TORTS – General principles – Damages – Where task of assessing evidence of major depressive disorder complicated by evidence of exaggeration or malingering – Whether plaintiff entitled to any damages

Legislation Cited:

Civil Liability Act 2002 (NSW), s 33

Civil Procedure Act 2005 (NSW), ss 56, 60

Motor Accidents Compensation Act 1999 (NSW), Pt 3.4, ss 83, 84, 126, 131

Uniform Civil Procedure Rules 2005 (NSW), rr 51.18(1)(e), 53.51(5)(a).

Cases Cited:

Abalos v Australian Postal Commission (1990) 171 CLR 16

Brown v Lewis [2006] NSWCA 87

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Harriton(by her tutor) v Stephens; Waller (by his tutor) v James & Anor; Waller (by his tutor) v Hoolahan (2004) 59 NSWLR 694; [2004] NSWCA 93

Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Jones v Hyde (1989) 63 ALJR 349

Lloyd v Thornbury [2019] NSWCA 154

Nominal Defendant v Smith [2015] NSWCA 339; (2015) 73 MVR 257

Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72

Category:

Principal judgment

Parties:

Khaled Hoblos (Appellant)
Nick Alexakis (Respondent)

Representation:

Counsel:
R McIlwaine SC (Appellant)
K Rewell SC (Respondent)

Solicitors:
McInnes Wilson Lawyers NSW (Appellant)
Hall and Wilcox (Respondent)

File Number(s):

2020/14206

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

20 December 2019

Before:

Priestley SC DCJ

File Number(s):

2018/347191

HEADNOTE

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

Mr Hoblos was injured in a motor vehicle accident in 2015. The respondent was at fault and liability was admitted. The insurer agreed to meet medical and related expenses until February 2018, when a doctor retained jointly by both parties reported his opinion that Mr Hoblos was demonstrating “abnormal illness behaviour”. The insurer stopped payments following the receipt of that report. Mr Hoblos brought proceedings in the District Court. The primary judge (Priestley SC DCJ) found that whilst Mr Hoblos may have some kind of injury or disability arising from the accident, his unreliability as a historian of his symptoms and as a witness meant that damages could not be quantified on any rational basis. Accordingly, judgment was entered for the respondent.

Mr Hoblos appealed from that decision. The principal issue on appeal was whether the primary judge conflated the tasks of determining liability and measuring damages.

Held (per McCallum JA; White JA and Davies J agreeing), allowing the appeal:

Notwithstanding evidence of malingering and exaggeration, the medical evidence supported a compelling inference that Mr Hoblos was suffering from a major depressive episode and should be compensated accordingly: per White JA at [48], McCallum JA at [177], Davies J agreeing at [195].

If some injury or disability was established, Mr Hoblos was entitled to damages, however difficult they were to quantify: per McCallum JA at [159], Davies J agreeing at [195].

Remittal to the District Court for a rehearing as to damages should be avoided if possible as the costs of that exercise would in all likelihood be disproportionate to the interest at stake: per White JA at [53], McCallum JA at [181]-[182], Davies J agreeing at [195].

Consideration as to whether this Court could assess damages in the absence of findings by the primary judge including those required by s 126 of the Motor Accidents Compensation Act and where credit findings about the plaintiff may need to be made: per White JA at [54], McCallum JA at [181]-[182], Davies J agreeing at [195].

Judgment

1. WHITE JA: This appeal raises two separate but, in the circumstances of this case, related issues. The first is the application of the principle that the burden lies on the plaintiff to prove the injury or loss for which he seeks damages (Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72 per Gibbs CJ and Wilson J at 412) where the plaintiff suffers some injury but is disbelieved as to its extent. The second is the legitimate scope for this court to set aside findings of fact by the primary judge based upon the primary judge’s assessment of the credibility of witnesses (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22).

2. The appellant was involved in a motor vehicle collision occasioned by the admitted fault of the respondent. At the time of the accident he was employed as a bus driver by a company known as Redy2Go. He drove smaller buses between Sydney airport and hotels in the city. As McCallum JA records in her judgment which I have had the advantage of reading in draft, his physical injuries as a result of the collision were confined to temporary soft tissue injuries.

3. The appellant’s case at trial was that he suffered severe psychological injuries as a result of the collision and suffered ongoing soft tissue injury that caused continued pain.

4. The primary judge did not believe the appellant. Nor did his Honour believe the evidence of his then partner, Ms Zena Latifi, who corroborated his evidence.

5. The appellant was assessed as having a degree of impairment as a result of his injury of seven per cent. As this fell below the 10% threshold, he was not entitled to damages for non-economic loss (Motor Accidents Compensation Act 1999 (NSW), s 131).

6. Because the appellant sought damages for economic loss for consequential mental harm, he needed to show that he suffered a recognised psychiatric illness (Civil Liability Act 2002 (NSW), s 33).

7. The respondent’s case was that the appellant did not incur any compensable injury in the accident and that his presentation both in court and when seeing doctors was nothing but an act. The respondent’s case was that Ms Latifi was a “co-conspirator to this sham.” The respondent argued that there was a “… total disparity between the medical evidence and the clinical presentation of the plaintiff.” The respondent also relied on surveillance photos.

8. The primary judge said that the issues in the case fell to be determined by an examination of the medical evidence including determining the extent to which doctors relied on the self-reporting of the appellant. His Honour said that the appellant:

“… must establish on the balance of probabilities what injuries and disabilities he suffers from, which of them were caused by the motor vehicle accident, and to what extent do those injuries cause him the economic loss he claims so as to sound in damages.”

9. The primary judge’s conclusions were:

“Medical evidence

161. The conclusion that I reach on the medical evidence is that it fails to make out the plaintiff's case. I am not satisfied on the balance of probabilities that the plaintiff suffers the disabilities of which he complains to the extent to which he complains of them. This alone may not always mean that the plaintiff fails. The reason the plaintiff fails here to make out any claim for damages arising from his injuries is because whilst he may in fact have some kind of injury and/or disability arising from the accident, the manner of presentation of the plaintiff, that is his inconsistencies and exaggerations and consequently his unreliability, makes it sheer speculation to determine how that sounds in monetary damages. I am unable to determine any such amount on any rational basis. Put simply, the plaintiff has failed to establish his claim to the necessary standard of proof.

162. The above conclusion is based on the review carried out above of the medical evidence and my assessment of the credibility and reliability of the evidence for the plaintiff. In summary, the medical evidence showed that there was no pathological or radiological support for ongoing physical injury; see most particularly the report of Dr Rowe. The case for an ongoing physical injury rests with accepting there is ongoing soft tissue injury, which in turn depends upon accepting the plaintiff's evidence. The medical evidence is that there is no condition known that could account for the presentation of the plaintiff; see at [76] above.

163. If there was to be any success for the plaintiff it would need to be based on the psychiatric evidence. I have reviewed the reports of the 5 psychiatrists above. For the reasons discussed the reports of Drs Hampshire, Synott and So can be discounted. We are left with the reports of Dr Lim and Dr Smith. Neither was cross examined; Dr Lim could not be due to the MAS legislative provisions; Dr Smith could have been though I note he was a jointly retained expert. No criticism was made of the lack of cross examination of either of these doctors by either party.

164. My analysis of these two reports shows that neither of them can adequately explain the plaintiff's presentation. Dr Lim almost begrudgingly in a kindly way allows for some kind of psychiatric condition, though my view is that conclusion runs counter to other parts of his report.

165. Dr Smith's report is more persuasive. Unlike Dr Lim, Dr Smith does not reach an ultimate conclusion running counter to the earlier assessment of the plaintiff recorded within his report. In my view, Dr Smith displays what I might call a greater amount of intellectual rigour in seeking to determine just what it is that explains the plaintiff's presentation. Dr Smith arrives at the term "abnormal illness behaviour". The plaintiff in submissions relies on this finding as supporting the plaintiff's case. For the reasons stated above when dealing with Dr Smith's report, my view is that finding is against the plaintiff. In short it is a finding that the explanation of the plaintiff's presentation is that he is exaggerating. I accept that finding.

Conclusion on credibility

166. The basis for accepting the finding of exaggeration is based not only on the contents of the medical reports, but also on the review of the plaintiff's evidence. I have indicated by a number in parentheses and highlighted in these reasons most (but not all) of the occasions where I found the evidence for or of the plaintiff to be unsatisfactory and where I consider it supports a finding of exaggeration or other unreliability. There were a total of 49 such points.”

10. For the reasons which follow, I do not consider that the primary judge’s findings that the plaintiff exaggerated or feigned symptoms and was unreliable, nor his adverse credit findings in relation to Ms Latifi, can be disturbed on appeal. Nor do I consider that the primary judge erred in finding that no damage sounding in damages had been proved if his Honour’s assessment of the medical evidence were correct.

11. However, I consider that the primary judge erred in his assessment of the medical evidence. His Honour assumed that if the appellant exaggerated or feigned his symptoms to psychiatrists, that vitiated their diagnoses, even if they appreciated that that was what he was doing.

12. The primary judge did not undertake an assessment of damages against the possibility that the appellant might succeed on appeal.

13. One preliminary matter should be noted but may be set aside. The appellant’s claim was that he suffered mental harm as a consequence of his physical injury from the accident. The respondent did not dispute that the appellant suffered some physical injury but said that it was transient. The respondent did not rely on s 32 of the Civil Liability Act 2002 (NSW).

14. The first ground of appeal was that the primary judge erred in finding that the appellant had suffered no assessable loss or damage having regard to 15 matters which were either findings of the primary judge or matters established by the evidence. The substance of ground 1 was that at para [161] of his judgment, the primary judge found he was not satisfied as to the extent of disabilities suffered by the plaintiff but did not find that the appellant had not suffered some kind of injury or disability. The appellant contended that the preponderance of evidence established that he had suffered injuries and disabilities at least until February 2018.

15. The appellant submitted that the primary judge failed to apply the “compensatory principle” and improperly treated the assessment of damages for personal injury “as being literal, a sum certain or rational, as opposed to applying the objective to give fair compensation, neither more nor less. The appellant submitted that because the primary judge found it reasonable for the appellant to have sought and obtained treatment including x-rays as a result of his injuries, and therefore impliedly should have found that it was reasonable for him to be absent from work, that ought to have sounded in damages.

16. The accident occurred on 8 March 2015. The appellant attended on a Dr Alsayed on the following day. The primary judge recorded that in the course of the next week the appellant complained of headache, sleep disturbances with fears, vomiting, neck pain, shoulder pain, pain in the left arm, back pain, left knee pain and left foot pain. X-rays were requested but showed no specific bony cause for the pain. The appellant attended on four other general practitioners within eight days of the accident. The primary judge found that it was reasonable for the appellant to have attended a doctor or doctors frequently after having been involved in a motor vehicle accident. His Honour considered that this material did not advance his consideration of the issues save that it showed a lack of any x-ray support for the appellant’s complaints.

17. There was no objective corroboration of the appellant’s reports to doctors of his pain and reported depressed mood, irrational fear and panic attacks, except through Ms Latifi whom the primary judge regarded as also not being a credible witness.

18. On 9 November 2015 the appellant was seen by an orthopaedic surgeon, Dr Roger Rowe, on referral by the respondent’s insurer. Dr Rowe reported that on physical examination the appellant was “markedly overreactive to the lightest of touch over the back and trapezius region” and all over the lumbar region although there was “no local tenderness and no muscle spasm”. He reported that the appellant overreacted to the testing of reflexes. Dr Rowe reported that:

“His current presentation is a reflection of psychiatric factors only. There is no evidence of residual organic pathology.

The prognosis should be determined by a psychiatrist.

…

The initial strains may well have been the result of the subject motor vehicle accident.

…

His current restrictions and treatment needs are not the result of any physical injury but are a reflection of psychiatric factors.”

19. Unless the primary judge’s fact finding can be reversed on appeal, I do not accept that his Honour erred in his findings at para [161] (quoted above at [9]) that whilst the appellant may have suffered some kind of injury or disability arising from the accident, his unreliability was such that it was sheer speculation to determine how that might sound in damages.

20. In McGregor on Damages, 21st ed, 2021 (James Edelman) Sweet and Maxwell, the learned author states:

“I. THE PROBLEM OF CERTAINTY

A claimant claiming damages must prove their case. To justify an award of substantial damages where loss is asserted the claimant must satisfy the court both as to (i) the fact of damage, that is an adverse consequence; and (ii) as to its amount. If the claimant satisfies the court on neither, the action will fail, or at the most the claimant will be awarded nominal damages where a right has been infringed. If the fact of damage is shown but no evidence is given as to its amount so that it is virtually impossible to assess damages, this will generally permit only an award of nominal damages; this situation is illustrated by the old cases of Dixon v Deveridge, and Twyman v Knowles.

On the other hand, where it is clear that some substantial loss has been incurred, the fact that an assessment is difficult because of the nature of the damage is no reason for awarding no damages or merely nominal damages. As Vaughan Williams LJ put it in Chaplin v Hicks, the leading case on the issue of certainty: “The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.”…”

21. The primary judge reasoned that because the appellant’s evidence was not credible, his report of symptoms to his doctors was not credible, and further, because the doctors’ assessment of psychological injury or pain was dependent upon the appellant’s reporting, and because the corroborative evidence of Ms Latifi was not credible, the appellant failed to prove the harm for which he claimed damages. If the premises are accepted, there is no error in that reasoning. On the primary judge’s factual findings, the issue was not one of difficulty of assessment of damages where some substantial loss has been incurred, but whether any such loss had been incurred.

22. This appeal then raises the familiar task of the appellate court both to conduct a real rehearing on questions of fact and to exercise the appropriate restraint due to the advantage of the primary judge, particularly in seeing the appellant and Ms Latifi.

23. In Fox v Percy, the plurality said (at [26]) that the trilogy of cases (Jones v Hyde (1989) 63 ALJR 349 at 351-352; [1989] HCA 20; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; [1990] HCA 47 at 482-483; and DeVries v Australian National Railways Commission (1993) 177 CLR 472 at 479; [1993] HCA 78) remains the instruction of the High Court to appellate decision-making (at [26]-[27]). In DeVries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said that if a trial judge’s finding depended to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge failed to use or palpably misused his advantage or acted on evidence that was inconsistent with facts incontrovertibly established by the evidence or was glaringly improbable: at [479].

24. In Fox v Percy the plurality said:

“28. … In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion…”

25. That does not mean that other errors in fact findings are necessarily immune from review. In Nominal Defendant v Smith [2015] NSWCA 339; (2015) 73 MVR 257 Basten JA said at [11] that:

“… while recognising that written reasons cannot provide a complete picture of the circumstances of the trial, or the considerations which may have led to the preferring of the testimony of one witness over another, nevertheless the appellate court is entitled to infer error from the manner in which the testimony was addressed in the reasons, including a failure to refer to factors which appear to the appellate court to be significant.”

26. The primary judge’s findings that the appellant was exaggerating or feigning his symptoms were not contrary to any incontrovertible evidence. I doubt that it is glaringly improbable that he would feign symptoms to his doctors and to his former employer to maximise his prospects of obtaining damages from the accident.

27. None of the psychiatrists whose reports were tendered was cross-examined. This does not mean that this court is in as good a position as was the primary judge to evaluate those reports. The psychiatrists did not have the advantage that the trial judge enjoyed of seeing the appellant’s version of events and symptoms challenged. This court does not have the advantage that the primary judge had of observing the appellant.

28. Nonetheless, the primary judge’s fact finding was flawed.

29. Dr Robert Hampshire provided a report dated 1 February 2016 following a consultation of 20 January 2016.He considered that the appellant was in obvious pain and diagnosed a pain disorder of both organic and psychological causality. He diagnosed the appellant as suffering from PTSD of considerable severity and a major depressive disorder. But Dr Hampshire did not query the appellant’s credibility.

30. The appellant was assessed by Dr Inglis Synott on 1 November 2019. Dr Synott gave a certificate pursuant to Part 3.4 of the Motor Accidents Compensation Act that the appellant had suffered injuries caused by the motor accident that gave rise to a degree of permanent impairment of greater than 10%. He assessed the appellant as suffering from post-traumatic stress disorder and an adjustment disorder with anxiety and depressed mood. When recounting the history given by the appellant, Dr Synott said that “[a]t times, Mr Hoblos was vague about dates and details – one could not be confident in the accuracy of the history”. The appellant displayed the kind of bizarre behaviour he exhibited on other occasions. He lay on the floor in the waiting room and lay down during the consultation.

31. Dr Synott reported:

“… PTSD and adjustment disorder are broad diagnostic categories and cover a wide range of presentations and there are no automatic implications simply on the basis of these diagnoses. One should not necessarily assume there is any significant psychiatric impairment or incapacity for employment and the diagnoses are not an automatic contraindication to participating in employment and other life roles - and they do not explain the totality of the situation.

In my opinion, psychiatric diagnoses are a simplistic and incomplete conceptualisation of the situation; he describes being overwhelmed by the circumstances and has "given up"; he has lost so many things in his life - with little to hope for in the future.”

32. The respondent relied on a report of a consultant psychiatrist, Dr Selwyn Smith. Dr Smith’s report was provided on the joint instructions of the solicitors for the appellant and respondent. Dr Smith’s report is dated 27 February 2018. Dr Smith reported:

“Mr Hoblos was a most difficult historian. He stated that he could not recall any detailed issues related to his background, current functioning or details of the motor vehicle accident. He spent most of the time throughout the examination lying in a corner of my office. He also frequently stated that he felt that he was going to faint and could not continue with the examination. He was provided with water but only drank a minimal quantity.

…

Mr Hoblos presented as a bearded, dishevelled man wearing a cap. He did not reveal overt anxiety, agitation, hyperactivity nor combativeness. He was delayed in his responses to me. His speech was slowed and hesitant. His presentation was most dramatic.

Mr Hoblos reported being persistently depressed. He described being self contemptuous. He revealed a blunted affect. He was not labile, constricted, fearful nor anxious. He stated that he has experienced "flashback" of the accident. He did not reveal language impairments, obsessions, compulsions nor phobias. He did not report suicidal ideation nor delusions. He stated that his memory was poor and his concentration was impaired.”

33. Dr Smith referred to other medical reports including that of Dr Jeffrey Bogan, a psychologist, who applied a “test of memory malingering”, the scores of which revealed an indication of exaggeration of symptoms” and inconsistency in the appellant’s account of the accident and subsequent consequences of it.

34. Dr Smith stated:

PSYCHIATRIC OPINION

From the history that I have obtained, documentation reviewed and my own clinical examination it is my opinion that Mr Hoblos is a most unreliable historian. The history that he has provided has been clearly noted to be inconsistent by a number of examiners as well as myself. In particular he stated that he was rendered unconscious and was admitted to hospital overnight. He also reported to me that he could not provide details of the accident because his memory was impaired. He also could not provide details of his personal life and in particular the name or age of his child. His presentation at the time of my examination was dramatic and significantly pain focused. He displayed similar presentations to other examiners according to their findings.

I have noted a paucity of physical findings by various examiners. I would of course defer any physical symptomatologies to other specialists including orthopaedic surgeons. I have noted no requirement to engage in physical treatments other than the utilisation of analgesic medication.

Although Mr Hoblos stated that prior to the accident he was in excellent psychological health, I have noted that in 2010 he presented to a new physician requesting a letter to assist in refunding his airline ticket in the light of a pre-existent history of anxiety and panic attacks.

I have noted the psychological test results undertaken by Dr Bogan that clearly demonstrate exaggeration if not malingering of his symptomatologies.

In my opinion it is highly unlikely that Mr Hoblos has sustained a head injury and there was no clinical evidence from the documentation that I reviewed that he has sustained cognitive impairment or a traumatic brain injury. Given his statement that he was rendered unconscious this in and of itself in my opinion would preclude the diagnosis of Post Traumatic Stress Disorder. His lack of memory for the accident would also discount the prevalence of Post-Traumatic Stress Disorder.

Given his dramatic presentation and the unreliable and inconsistent nature of his account of his symptomatologies it is my opinion that it is more likely than not that Mr Hoblos is demonstrating abnormal illness behaviour.

…

In my opinion Mr Hoblos's credibility in regard to his symptomatologies taken together with a lack of consistency in his presentation and the grossly abnormal psychological testing results reported by Dr Bogan has caused me to regard Mr Hoblos as demonstrating abnormal illness behaviour. His symptoms are not consistent with a formal psychiatric disorder as defined within the Diagnostic and Statistical Manual of Mental Disorders (fifth edition) of the American Psychiatric Association as a result of the accident that occurred on 8 March 2015. I was also struck by Mr Hoblos's account that he has not improved and in fact has deteriorated both from a psychological and physical perspective and has become completely dependent on his former partner who has to undertake domestic care and continued assistance to him.”

35. Dr Smith did not say what he meant by the term “abnormal illness behaviour”. The primary judge considered that this was a polite reference to a person who was embellishing, feigning and exaggerating his or her condition.

36. However there was no evidence to that effect. As noted above, none of the psychiatrists was cross-examined. On the face of it, “abnormal illness behaviour” is a medical term, not a euphemism. The term was not explained. Nonetheless, if Dr Smith’s opinion should be preferred, the appellant did not suffer a recognised psychiatric illness.

37. Dr Samuel Lim examined the appellant as an approved medical specialist to provide a certificate as to whether the degree of the appellant’s permanent impairment as a result of the injury caused by the motor accident was greater than 10%. His report is dated 1 August 2018. He examined the appellant on 24 July 2018. He diagnosed the appellant as suffering a major depressive disorder but certified him as having a permanent impairment which was not greater than 10%. The impairment of the appellant’s capacity to work was only one of six factors relevant to that assessment. In relation to the appellant’s capacity to work, Dr Lim opined that:

“taking into account his physical limitations (ongoing headaches, tinnitus, and pain) I am of the opinion that the contribution from his psychological symptoms in relation to his Major Depressive Episode would prevent him from tolerating full time work or study and from a role that was stressful.”

38. Dr Lim stated:

Diagnosis and Causation

The assessment of Mr Hoblos was somewhat complicated by a degree of inconsistency observed within the assessment in regard to Mr Hoblos' account of his symptoms and his clinical presentation, and the inconsistency in the reports of his presentation across different assessors. On the whole, I did not feel that his entire presentation and account of his difficulties could be consider credible. With regard to the declared diagnosis of Posttraumatic Stress Disorder, Mr Hoblos himself described symptoms consisting of the intrusive unpleasant recollection of the motor vehicle accident combined with an avoidance of triggers and an increased startling reflex in relation to traffic sounds. This was somewhat inconsistent with both the observation that he did not appear to be troubled or to notice the loud traffic sounds just outside the assessment area and also in the variation in which he described his avoidance of driving as a result of his reported anxiety symptoms. On this basis, I feel that I am not able to reliably diagnose a Posttraumatic Stress Disorder.   

What appears to be more clear are Mr Hoblos' description of his depressive symptoms. These appear to be somewhat more consistent both within the    assessment and across different assessors. Mr Hoblos describes low mood, a pervasive sense of hopeless and helplessness and negative impacts on his social rhythms which would meet the criteria for a Major Depressive Disorder. In relation to causation, Mr Hoblos denies any pre-existing difficulties with his mood. His description of his difficulties with anxiety relating to flying in 2010 were strongly suggestive of an instrumental motivation in obtaining medical dispensation in order to get a refund for the flight. From a temporal perspective, it is likely that Mr Hoblos developed his depressive symptoms following the indexed motor vehicle accident. Furthermore, Mr Hoblos' description of his negative cognitions of his depressive illness, relate to the subsequent deficits he experiences which he attributes to the motor vehicle accident. The accident itself appears to be a very significant for Mr Hoblos. It has become the major attributing factor for his subsequent difficulties. On balance, given the temporal relationship of his depressive symptoms, combined with the content of his depressive ruminations which relate to the consequences of the accident, I feel that, his Major Depressive Episode was caused by the motor vehicle accident. I have noted the submitted diagnosis of an Adjustment Disorder with Anxiety and Depressed Mood. I am redefining this as a Major Depressive Episode taking into account the clinical intensity of his reported symptoms, and the persistent and pervasive nature of his difficulties which would be more consistent with a Major Depressive Disorder.

39. The primary judge emphasised that Doctor Lim did not consider the appellant’s presentation to be credible (and included three of Dr Lim’s findings to that effect in his 49 matters that he noted that indicated the appellant’s lack of credibility). The primary judge considered that there was an inherent inconsistency in Dr Lim’s report in that, on the one hand, Dr Lim did not consider the appellant to be credible and yet the presentation was accepted to establish a major depressive disorder. His Honour found the report to be unpersuasive.

40. But the implicit assumption in this criticism is that people with major depression do not give a presentation and account of difficulties which can be exaggerated or feigned. There is no basis for that assumption. It is clear that Dr Lim did not consider the appellant’s presentation and account of his difficulties to be credible. He nonetheless considered that the appellant’s depressive symptoms were credible.

41. Dr So, a consultant psychiatrist, was a treating doctor for the appellant. The appellant consulted Dr So on eight occasions between 20 March 2018 and 19 February 2019. His report is dated 26 March 2019. Dr So diagnosed the appellant as suffering from chronic post-traumatic stress disorder of moderate severity and chronic major depression in the range of moderate to severe.

42. Dr So said that the appellant was incapacitated by lethargy, mental preoccupations, mood irritability, lack of confidence, poor stress tolerance and indecisiveness which was consistent with a functional disability from clinical depressive disorder and chronic PTSD.

43. Dr So agreed with Dr Lim’s diagnosis of major depressive disorder, and considered that the appellant also suffered from post-traumatic stress disorder. Dr So did not comment on the appellant’s credibility but he had Dr Lim’s and Dr Synott’s reports.

44. The primary judge said of this report that it stated little more than a bald conclusion and noted there was no psychiatric testing or psychological testing. The primary judge said there was no detailed record of the appellant’s presentation. The primary judge gave little weight to the report.

45. However Dr So’s opinion followed from numerous consultations. It followed from his examination of the appellant. Such a psychiatric opinion following from multiple consultations need not depend on reasoning as distinct from experience and professional intuition.

46. Dr Lim, Dr Synott, Dr So and Dr Smith differed in their opinions as to whether the appellant was demonstrating a recognised psychiatric disorder. The primary judge preferred the opinion of Dr Smith. He characterised Dr Smith’s opinion that the appellant suffered “abnormal illness behaviour” as being no more than a statement that in his presentation the appellant was exaggerating. The primary judge said that he accepted “that finding”. But that was not Dr Smith’s finding.

47. The primary judge made numerous findings of the appellant’s having feigned or exaggerated his symptoms. The respondent’s case below appears to have been presented on the basis that if this attack on the appellant’s credibility were sustained, then it should follow that the opinions of the psychiatrists upon whose evidence the appellant relied should be discounted because they relied upon the appellant’s self-reporting. That is how the primary judge dealt with the matter. But that was not the evidence. Both Dr Lim and Dr Smith considered that the appellant’s presentation to them was not credible, but nonetheless accepted that the appellant suffered either a major depressive order (in the case of Dr Lim) or abnormal illness behaviour (in the case of Dr Smith). In either case that condition meant that the appellant was unable to work. Nonetheless, it is only if Dr Lim’s, Dr So’s, Dr Synott’s or Dr Hampshire’s diagnoses are preferred that the appellant is entitled to damages for economic loss (Civil Liability Act, s 33).

48. My assessment of the medical evidence is substantially the same as that of McCallum JA. I agree with her Honour’s assessment that the preponderance of evidence favours Dr Lim’s assessment of a major depressive disorder.

49. The assessment of Dr Lim dated 1 August 2018 and the report of Dr So of 26 March 2019 demonstrate that the appellant’s mental harm continued at least to March 2019. His presentation before the primary judge is consistent with his condition continuing to trial.

50. An earning capacity assessment report prepared by Dr Robin Mitchell, Ms Alicia Tyler, Ms Geraldine Nelson, Mr Andrew Hook and Ms Emma Carter assessed the appellant as having both physical and psychological capacity for full time work on the basis that he had demonstrated willingness to return to his previous employment in a reduced capacity and on the reporters’ doubts as to the validity of his self-reporting. But they recommended more extensive testing. I would accept Dr Lim’s assessment of the appellant’s employment prospects referred to at [37] above.

51. I agree with McCallum JA that the appellant has not demonstrated an entitlement to damages for domestic care. The primary judge’s rejection of the evidence of the appellant and Ms Latifi based on his assessment of their credibility negates such an award.

52. The appellant’s concession that damages might be assessed only up to February 2018 was a fall-back position in case Dr Smith’s opinion was also accepted. I see no reason that the appellant’s damages should be confined to past economic loss.

53. As McCallum JA observes the proceeding should not be remitted to the District Court for assessment of damages if that can be avoided.

54. It is not presently clear to me whether damages can be assessed by this court in the absence of findings by the primary judge (including as to those required by s 126 of the Motor Accidents Compensation Act) and where credit findings about the plaintiff may need to be made. The parties should be directed to provide submissions on the assessment of damages, including as to whether that assessment should be remitted to the District Court. I would not confine the submissions to the matters referred to in paras [188] and [189] of McCallum JA’s reasons.

55. I propose the following orders:

1. Appeal allowed.

2. Set aside the orders of the District Court of 20 December 2019.

3. Direct that within 28 days each party provide written submissions on the assessment of damages in accordance with these reasons, including as to whether damages can be assessed by this court or whether their assessment should be remitted to the District Court.

4. Any submissions in reply are to be provided within seven days thereafter.

56. The appellant is entitled to his costs of the appeal to date. The determination of the costs of the proceedings below should await the assessment of damages.

57. McCALLUM JA: Khaled Hoblos was injured in a motor vehicle accident on 8 March 2015. The other driver was at fault. The relevant third-party insurer initially admitted liability and agreed to meet medical and related expenses. That was the insurer’s position until about February 2018, when a doctor retained jointly by both parties reported his opinion that Mr Hoblos was demonstrating “abnormal illness behaviour”. The insurer stopped payments following the receipt of that report. Mr Hoblos subsequently brought proceedings in the District Court. The insurer admitted breach of duty but did not admit that Mr Hoblos had suffered any loss or damage. The defence alleged that Mr Hoblos had made false and misleading statements amounting to fraud in connection with his claim. At the hearing of the proceedings, the insurer’s case was that Mr Hoblos’s presentation to medical practitioners from a time very soon after the accident on 8 March 2015 was “contrived” and that his symptoms were “manufactured or at least greatly embellished for the purposes of his damages claim”. It was submitted that he was not entitled to any damages.

58. The primary judge (Priestley SC DCJ) for the most part accepted the insurer’s case and entered “verdict for the defendant” (as noted by White JA at the hearing of the appeal, the order should properly have been “judgment for the defendant”). Mr Hoblos appeals from that order.

56. Although Mr Hoblos’s car had what appears to have been a forceful and no doubt frightening collision with a pole, Mr Hoblos escaped with relatively minor physical injuries (temporary soft tissue injuries). The medical evidence at the trial was concerned primarily with his psychiatric condition, as to which different opinions were expressed at different times. The insurer’s position at trial and in the appeal was that the case presented a stark choice between, on the one hand, a debilitating major depressive disorder resulting from the accident and, on the other hand, a case of a claimant engaging in an elaborate ruse from the outset. The insurer alleged that Mr Hoblos’s partner at the time, Ms Latifi, [1] was a co-conspirator in the sham. The primary judge’s conclusion was accordingly heavily dependent upon his assessment of their credibility. However, although he disbelieved Mr Hoblos and Ms Latifi, the primary judge stopped short of making a positive finding in the terms contended for by the insurer, that Mr Hoblos’s claim was a complete contrivance from the outset and that he had suffered no disabilities at all. Instead, his Honour’s conclusion was framed in terms of a failure to discharge the onus of proof. The critical conclusion is at [161] where his Honour stated:

“The conclusion that I reach on the medical evidence is that it fails to make out the plaintiff’s case. I am not satisfied on the balance of probabilities that the plaintiff suffers the disabilities of which he complains to the extent to which he complains of them. This alone may not always mean that the plaintiff fails. The reason the plaintiff fails here to make out any claim for damages arising from his injuries is because whilst he may in fact have some kind of injury and/or disability arising from the accident, the manner of presentation of the plaintiff, that is his inconsistencies and exaggerations and consequently his unreliability, makes it sheer speculation to determine how that sounds in monetary damages. I am unable to determine any such amount on any rational basis. Put simply, the plaintiff has failed to establish his claim to the necessary standard of proof.”

1. The primary judge recorded in a footnote that, “for convenience”, he had referred to Ms Latifi in the judgment by the name “Zena”. That course might be adopted for convenience in a case where, for example, several witnesses have the same surname. Otherwise I see no reason not to refer to Ms Latifi using her title, as occurred with every other witness. The judgment did not refer to Mr Millard, for convenience, as “Kevin”.

60. Mr Hoblos’s principal argument in the appeal was that the primary judge’s decision to award no damages in circumstances where his Honour accepted that there may be some disability was erroneous and that the Court should set aside the judgment and enter judgment for the appellant.

Grounds of Appeal

61. The author of the notice of appeal may have overlooked the requirement of the rules to state “briefly, but specifically, the grounds relied on in support of the appeal”: r 51.18(1)(e) of the Uniform Civil Procedure Rules 2005 (NSW). The notice of appeal specifies four grounds of appeal with 41 sub-parts (set out in full in an appendix to this judgment).

The compensatory principle

62. Ground 1 gives a tendentious summary of the evidence and the primary judge’s findings and asserts on the strength of that summary that the primary judge erred in finding that Mr Hoblos had suffered no assessable loss or damage.

63. The insurer’s written submissions in the appeal went to the trouble of addressing all fifteen sub-paragraphs of that ground in turn. While that was helpful, I do not think it is necessary in this judgment to engage individually with each separate point. The gravamen of ground 1 is that the primary judge misapprehended the compensatory principle. To repeat the critical conclusion at [161], the judge held that, whilst Mr Hoblos “may in fact have some kind of injury and/or disability arising from the accident”, his unreliability as a historian of his medical symptoms and as a witness made it “sheer speculation to determine how that sounds in monetary damages”.

64. Mr Hoblos relied in this context on the decision of this Court in Harriton (by her tutor) v Stephens; Waller (by his tutor) v James & Anor; Waller (by his tutor) v Hoolahan (2004) 59 NSWLR 694; [2004] NSWCA 93. I note that there was an appeal from that decision to the High Court. The appeal was dismissed in terms that did not in any way qualify this Court’s discussion of the relevant principles: Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15). In the decision of the Court of Appeal, Spigelman CJ said at [698]; [6]:

“The compensatory principle is a statement as to the measure of damages. It is not a statement about liability. The gist of an action in negligence is damage, not damages. The former is a reference to loss or injury. The latter is concerned with measurement, leading to a consequential inquiry to determine a sum of money.”

65. Mason P, who dissented, nonetheless agreed with that statement at 716; [126]; and see the discussion of the principle by Ipp JA at 728-731; [214]-[232].

66. Mr Hoblos’s argument is, in substance, that the primary judge’s conclusion conflated the tasks of determining liability and measuring damages. In my respectful opinion, the conclusion at [161] reveals that the submission must be accepted. His Honour found that, although Mr Hoblos may have suffered loss or injury, the credibility findings meant that he had failed to prove “how that sounds in monetary damages”. The statement from Harriton set out above makes plain that there must be a separate determination as to whether the plaintiff has suffered loss or injury (liability) followed by an inquiry to determine a sum of money (damages) that will fairly compensate the plaintiff for that loss or injury. If actionable damage was established, Mr Hoblos was not precluded from recovering compensation by the uncertainty or unreliability of his evidence. If the assessment of damages was difficult because of the state of the evidence, the judge’s task was to do the best he could, as explained in the decision in Harriton in the High Court at [84] (Kirby J; his Honour was in dissent but the principle is well established).

67. Returning to Mr Hoblos’s grounds of appeal, a point to the same effect as ground 1 is raised by ground 2(d), which asserts that the primary judge erred in abrogating his responsibility to undertake an assessment of damages in circumstances where his Honour’s conclusion was framed in terms implicitly accepting that some disability had been established (“I am not satisfied on the balance of probabilities that the plaintiff suffers the disabilities of which he complains to the extent to which he complains of them”: primary judgment at [160]).

68. If the primary judge did accept that some injury or disability was established, the law is clear that his Honour should have proceeded to quantify damages, however difficult that task may have been. However, the determination of this ground is complicated by the fact that, with respect, it is not clear to what extent, if at all, the primary judge was persuaded on the balance of probabilities that Mr Hoblos had suffered any injury. His Honour framed the liability question correctly at [160] (“has the plaintiff satisfied me on the balance of probabilities that he is suffering the injuries and disabilities arising from the accident as he claims”) but did not make a clear finding on that issue. He stopped short of finding fraud (at [160]) but concluded only that Mr Hoblos had failed to prove his injuries and disabilities “to the extent” claimed. His Honour did not find that Mr Hoblos had not suffered any injury or disability.

69. Accordingly, ground 1 raises an anterior factual question as to whether any injury was established. To the extent that that question turns on an assessment of the credibility of Mr Hoblos and Ms Latifa, as noted by White JA during oral argument, it raises the principles stated by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. However, the evidence that Mr Hoblos had suffered psychiatric injury was not confined to his own testimony and presentation. His case was supported by the opinion evidence of a number of medical experts who had examined him. None of the psychiatrists or psychologists was cross-examined. Two things follow from that. First, apart from the MAS specialists (who cannot be cross-examined), the evidence may be regarded as uncontested, although the same can be said of the insurer’s experts. Secondly, this Court is in as good a position as the primary judge to assess their reports.

70. As to a number of the experts, the primary judge analysed their reports on the assumption that their opinions were based wholly on the self-reported symptoms of Mr Hoblos, whom his Honour did not believe, and that their expert opinions were accordingly of little weight because they were based on assumptions that were not proved. It will be necessary to test that assumption.

71. In considering whether the evidence established that Mr Hoblos suffered some injury, it is also helpful to consider the alternative hypothesis put by the insurer (that Mr Hoblos’s symptoms were completely contrived from a point very shortly after the accident). Counsel for Mr Hoblos asked rhetorically why a man who had previously been happy and healthy, in gainful employment and enjoying the love of a good woman would give that life away for the sake of a damages claim. However, in exploring that question, I am mindful of the fact that his Honour did not have to accept the insurer’s hypothesis in order to conclude that there should be judgment for the defendant.

Assorted other points

72. The remaining grounds of appeal raised a further 26 separate points under the headings “misuse of materials and evidence”, “weight of evidence” and “lack of or inadequate reasons”. The insurer submitted that it is doubtful whether ground 3, which takes issue with the weight attached by the primary judge to various aspects of the evidence, is an available ground of appeal in the circumstances of this case. But the primary judge’s task of finding the facts did not involve the exercise of a discretion. This Court must give effect to its own conclusion as to the facts, making all due allowances for the advantages available to the trial judge: Fox v Percy at [29].

73. In any event, as with ground 1, while the insurer’s written submissions went to the trouble of addressing each sub-paragraph in turn, and that was helpful, I do not think it is necessary to do the same in this judgment. The points specified in grounds 2 and 3, upon analysis, are more properly seen as arguments in support of the critical question identified above.

74. Ground 4 is framed as a ground of failure to give adequate reasons but was not developed in argument as an assertion of discrete legal error of that kind. Rather, as with grounds 2 and 3, the points raised appear to be relied upon to support the central contention that the primary judge erred in finding that Mr Hoblos had suffered no assessable loss or damage.

75. Two of the points in ground 2 (points (b) and (c)) asserted that it was a misuse of evidence, when assessing certain medical opinions, to have regard to events before or after the period to which those medical opinions related, or to “apply the presentation of the plaintiff” in his evidence at the trial to all events that had occurred since the accident. I do not understand the contention to have been that earlier or later events were irrelevant as a matter of principle. As submitted by the insurer, the primary judge was entitled and indeed required to consider all of the events, reports and surveillance material and Mr Hoblos’s presentation at various times in order to determine whether he had reported his symptoms truthfully (or reliably) to the various medical experts. That approach was not wrong in principle.

76. Further, I accept, as submitted by the insurer, that the primary judge undertook a careful and thorough analysis of the medical evidence. That said, his Honour may have unduly complicated that task by considering the medical reports in the order in which he did in the judgment, the logic of which escapes me (apart from the fact that he distinguished between plaintiff’s and defendant’s experts). If later information was to be taken into account for the purpose of discounting earlier medical assessments, that had to be done in a disciplined way, giving proper consideration to the context in which each medical opinion was reached. For the purpose of undertaking that assessment myself, I have to the extent possible instead analysed the evidence in chronological order.

77. Apart from making these preliminary points, I have addressed the appellant’s individual points below, to the extent that I considered them to be pertinent to the assessment of the issues raised by the appeal.

Evidence about the applicant’s life before the accident

78. Mr Hoblos was born in 1979 and was almost 36 at the time of the accident. According to a chronology provided to the primary judge, he came to Australia from Lebanon in October 2008. His life in Lebanon was not explored in evidence in the trial but he told one of the medical experts that he was in the police force there and worked as an undercover officer for two years.

79. In November 2009, some 13 months after Mr Hoblos’s arrival in Australia and well before the accident, a general practitioner at a medical practice in Punchbowl, Dr Giurgius, recorded symptoms of “anxiety; stress; shaky; tense; shortness of breath” and a history of “Poor sleep. Depressed mood. Suicidal thoughts.” Dr Giurgius prescribed Valium on that date.

80. In December 2010, a medical centre in Auburn recorded three progress notes in Mr Hoblos’s medical records within the space of a week. The first was on 7 December when Dr Islam recorded “dizziness, unwell feeling”. The second was on 11 December (a Saturday) when Dr Robat-Meily recorded “1 yr hist of anxiety + depression; scared of travelling; wants letter to refund his ticket; no evidence in this file”. That related to an attempt by Mr Hoblos to obtain a refund for a Qantas airline ticket. The doctor did not provide the certificate sought, instead referring Mr Hoblos back to his regular GP. The following Monday, Mr Hoblos went back to Dr Islam, who recorded “suffers from anxiety/panic attacks; scared to fly” and provided a medical certificate.

81. Mr Hoblos’s attempt to obtain a refund for his Qantas ticket became a major credit issue in the trial, not only against Mr Hoblos but also against Ms Latifi. The primary judge addressed it at length in the judgment, including setting out a passage from the transcript in which his Honour took over the questioning of Mr Hoblos, expressed scepticism at one of his answers and reminded him “you are on oath, Sir”: at [92]. The judge explained at [166] that he had identified 49 points (numbered throughout the judgment) which he considered supported a finding of “exaggeration or other unreliability”. No fewer than five related to the Qantas refund issue, an event that occurred over 4 years before the accident and 9 years before the trial.

82. In February 2012, Mr Hoblos commenced working as a bus driver. In May 2012, he graduated with a diploma of Information Technology.

83. In August 2013, Mr Hoblos moved in with Ms Latifi, who was pregnant with their child at that time. Mr Hoblos gave evidence that he and Ms Latifi were “a very happy couple”. He said they were expecting a baby and had planned to get married and “just settle down and everything”. Mr Hoblos had met Ms Latifi in 2009 through her brother, with whom he played football. Their daughter was born in November 2013. Mr Hoblos said that he used to cook and clean at that time and that, after the birth of their daughter, he was involved in caring for her, changing her nappy and helping make up her bottle to feed her. He said he was very active and had energy to do anything.

84. There is some, albeit slight, independent corroboration of Mr Hoblos’s claim to have been actively involved in housework at that time. His medical notes during that period include several consultations for dry skin and eczema which Mr Hoblos attributed to “doing the dishes”.

85. Ms Latifi described Mr Hoblos before the accident in the following terms:

“He had an amazing personality, very decent guy. Is the reason he’s – his caring character and respectful personality drew my attention. He was very considerate, very compassionate, very loving, very adaptable. And it’s the reason, obviously made a decision to move in with me in the August of 2013, just shortly after I found out when I was pregnant.”

86. In August 2014, Mr Hoblos changed jobs to work with a company called Redy2Go, still as a bus driver. For the period of six months leading up the accident he was working 6 days a week for that company earning $1000 per week. The acting general manager of Redy2Go, Mr Millard, gave evidence as to Mr Hoblos’s suitability for that position before the accident:

“Okay, so he was – he was very loyal, he was very – he presented very well. He very quickly picked up how to plan routes and do things like this so he was, yeah, he was a good employee in that regard.”

87. Shortly before the accident, on 3 March 2015, Mr Hoblos saw a general practitioner, Dr Hanna, complaining of a sore left knee. Upon examination, Dr Hanna found that Mr Hoblos had pain in the neck, back and left knee “in extreme movement”. Mr Hoblos gave evidence that those complaints did not in any way affect his capacity to work.

88. In his evidence in the trial, Mr Hoblos was asked why he told the doctor that he had a sore left knee. He replied, “just tiredness”. Again, the primary judge was sceptical (“It gets tired from doing nothing?”). In fairness, the term “tiredness” readily describes the soreness or stiffness commonly experienced when a leg is kept in the same position for many hours while driving. The judge’s scepticism at that point of the evidence is, with respect, difficult to understand. This was an appointment before the accident. It could hardly be part of the alleged sham. Perhaps it was thought that Mr Hoblos was playing down a pre-accident injury but that was never the insurer’s case; the insurer disputed that there was anything wrong with Mr Hoblos apart from a dishonest disposition. In any event, that was the first of the 49 credit points numbered throughout the judgment.

The accident and its immediate aftermath

89. The accident occurred on 8 March 2015. Medical records made within days after that date record that Mr Hoblos did not lose consciousness. He later said he had, a matter plainly capable of indicating exaggeration or embellishment. Mr Hoblos was able to walk away from the accident but the car was a write-off. He called his uncle, who collected him and took him back to his (the uncle’s) house. The plaintiff said that, within two hours, he started feeling pain in the lower back. His uncle then drove him to Ms Latifi’s house. He said he was feeling pain and experiencing a buzzing noise in his ear. When he woke the next morning, his feet felt numb and two of his fingers felt numb. Asked how he felt emotionally that morning, he said “that’s changed all my entire life. That day.” He took sick leave and saw Dr Alsayed at a medical practice at Lakemba. Dr Alsayed recorded “headache, sleep disturbance with fears, vomited, neck pain, shoulders pain on left more and left arm, back pain on left more, the right side also pain due to the double impact, left knee pain no swelling, left foot pain”. Mr Hoblos was sent for x-rays and prescribed pain relief medication.

90. Two days later Mr Hoblos was referred to a psychologist because he could not sleep and was suffering memories of the accident which made him feel scared, “shake a lot” and have short breath. The medical notes for that date record “also symptoms of PSTD (sic), sleeping problems, scared.”

179. The insurer’s alternative submission was that, if the Court took the view that Mr Hoblos should be compensated for temporary soft tissue injuries of the kind postulated by one of the medical experts, Dr Rowe (whose evidence is considered below), the Court would make that assessment itself. The insurer identified two possibilities on that analysis:

1. An award of damages for soft tissue injuries which had recovered within three months after the accident, giving an award of $13,000 for loss of earnings, $1,430 for loss of superannuation at 11% and $8,669 for medical expenses paid by the insurer under s 83 of the Motor Accidents Compensation Act, giving a total of $23,099;

2. Alternatively, if the Court were of the view that soft tissue injuries were sustained which recovered within eight months after the accident (that is, shortly prior to the examination by Dr Rowe on 9 November 2015), the damages to be awarded would be $34,000 for loss of earnings, $3,740 for loss of superannuation and $9,600 for medical expenses paid under s 83 of the Motor Accidents Compensation Act 1999 (NSW), giving a total of $47,340.

186. I do not think it is necessary to remit the proceedings to the District Court. The quantification of damages will turn primarily on the expert medical evidence, which this Court has analysed in detail and which does not raise issues of credit.

187. The alternative scenarios proposed in Mr Hoblos’s written submissions in the appeal implicitly accepted that, if this Court were to reassess damages, no component would be included for domestic care. In any event, if that is wrong, that is the conclusion I have reached for the reason identified above.

188. The submission was silent as to whether the Court should also award medical expenses paid by the insurer for that period under s 83 of the Motor Accidents Compensation Act 1999 (NSW). If such expenses are sought, the parties should have an opportunity to address that issue based on the evidence before this Court and the findings in this judgment.

189. I do not accept the insurer’s submission that any reassessment would be confined to damages for the impairment caused by Mr Hoblos’s soft tissue injuries. As already indicated, the evidence establishes that Mr Hoblos experienced an episode of debilitating depression as a result of the motor vehicle accident. It is clear enough that Mr Hoblos is entitled to compensatory damages for the impairment of his capacity to work due to a major depressive illness from the date of the accident until at least early 2018. It is not clear to me whether the submission recorded at [183] indicates that Mr Hoblos consents to quantification of economic loss on that basis. If not, the parties should have an opportunity to address the quantification of economic loss based on the evidence before this Court and the findings in this judgment.

190. I have considered first referring the proceedings for mediation of the issue of damages, as occurred in Lloyd v Thornbury. Upon reflection, in light of the sensible positions proposed by the parties and the experience of counsel appearing in the matter, that is probably unnecessary. However, I propose that directions be made in terms that will give the parties an opportunity to resolve any outstanding issues before the need to prepare any further round of written submissions arises.

191. Before leaving the topic of damages, I should record a submission put on behalf of Mr Hoblos concerning the insurer’s alleged failure to comply with its duty under s 84 of the Motor Accidents Compensation Act to do all things reasonable and necessary for the rehabilitation of an injured person. It was noted that compliance with s 84 is a condition of an insurer’s license.

192. It is not clear to me that the section imposes a positive duty to offer rehabilitation services and it was not explained how any breach of that duty should feature in the determination of Mr Hoblos’s claim. To that extent, the submission may be taken to have been rhetorical. It may nonetheless be observed that the imposition of the duty contained in the section to meet the expenses of rehabilitation is a statutory reflection of the desirability of adopting proactive programs to pre-empt the very kind of dysfunctional spiral displayed by Mr Hoblos. As already acknowledged, however, that observation does not affect the assessment of damages – it is merely an observation as to the commerciality of expending resources on litigation rather than rehabilitation.

Orders

193. The orders I initially proposed were:

1. Appeal allowed.

2. Judgment of the Court below set aside.

3. In lieu thereof, direct that there be judgment for the plaintiff for damages to be assessed.

4. that, within 28 days, absent agreement on damages, each party provide a written outline of submissions of no more than 10 pages addressing the issues identified at [188] and [189] of this judgment and the question of costs with a view to those issues being determined by this Court on the papers.

194. However, since writing this judgment, I have had the benefit of reading the judgment of the presiding judge, White JA in draft and have seen the broader direction his Honour proposes as to further written submissions. In light of his Honour’s different conclusion on that issue, I do not think it is appropriate to confine the parties in the manner I initially had in mind. Accordingly, I agree with the orders proposed by White JA. I do so on the understanding indicated at [190] above that the period of 28 days will give the parties an opportunity to resolve any outstanding issues before the need to prepare any further round of written submissions arises.

195. DAVIES J: I agree with the reasons of McCallum JA and with the orders proposed by White JA.

Schedule – grounds of appeal

Ground 1 – No Damages

1. The primary judge, having:

1. found that the respondent was at fault for turning right across the path of the appellant’s vehicle;

2. found that the respondent’s vehicle collided with the appellant’s vehicle, which then in turn collided with a power pole and traffic light;

3. found that it is reasonable for a person to attend a doctor or doctors frequently after being involved in a motor vehicle accident;

4. found that the appellant was employed as a bus driver for Redy2Go, working 6 days per week;

5. found that the evidence of Mr Millard was favourable to the plaintiff;

6. found Mr Millard’s evidence to be that he could no longer employ the appellant in his role;

7. a preponderance of evidence of historical supporting injuries and disabilities (sic) at least until February 2018;

8. having found that he was not satisfied as to the extent of disabilities suffered, rather than explicitly that he has suffered no disabilities;

9. having found that he may have some kind of injury and/or disability;

10. been advised of agreement between the parties that he appellant’s earning but for the accident to the date of trial would have been $1000 net per week;

11. been advised that the respondent, through its compulsory CTP insurer NRMA, offered no rehabilitation services in accordance with Section 84 of the Motor Accidents Compensation Act 1999;

12. been advised of agreement between the parties that the appellant’s earnings but for the accident from the date of trial would have been $1,050 net per week;

13. been advised that the respondent, through his compulsory CTP insurer NRMA, had initially admitted liability and made payment of treatment expenses;

14. no evidence of the respondent or his compulsory CTP insurer NRMA advising the appellant of a denial of all liability until as pleaded in the defence, filed on 14 June 2019;

15. been advised that the amount of past out-of-pocket expenses claimed, but to be agreed mathematically by the respondent, amounted to $26,559.73 (notice to associated 17 December 2019);

erred in finding that the appellant had suffered no assessable loss or damage.

Ground 2 – Misuse of materials and evidence

1. The primary judge erred:

1. At [59] in applying an improper meaning to the assessment of permanent impairment of Dr Cameron referred to at [58];

2. In taking into account extraneous matters prior to the accident and from late December 2018 onwards as referencing the reliability of medical opinions between March 2015 and late 2018;

3. In applying the presentation of the plaintiff in testimony to all events that had transpired in the meantime following the subject injury;

4. In abrogating his responsibility of not undertaking the assessment of damages, by finding that no being satisfied at trial that “the plaintiff suffers the disabilities of which he complains to the extent of which he complains of them” results in no ongoing damage, let alone no loss for all periods;

5. In failing to give adequate or proper reasons as to the preferred medical evidence and why it relates to all or some periods from the date of the accident;

6. In seemingly giving additional weight to the opinion of Dr Smith because it was commissioned jointly but not acknowledging that at that time that the matter was before jurisdiction of CARS that was binding upon the respondent;

7. In failing to properly refer to the opinion of Dr Smith (page 13) that the appellant “is” (as at 20 February 2018) demonstrating abnormal illness behaviour on a confidence level of “more likely than not” and applying it to all periods since the accident;

8. In misusing the opinion of Dr Smith on the standard of proof for past periods prior to assessment albeit that his opinion was “that caution needs to be applied in definitely stating that Mr Hoblos experienced (so prior to 20 February 2018) a forma psychiatric disorder …” as the appellant’s burden of proof was not on a definite burden.

Ground 3 – Weight of Evidence

1. The primary judge erred:

1. In failing to give proper weight to the opinion of Dr So, based upon seven consultations with the appellant, and in circumstances where the doctor was not required for cross-examination;

2. In failing to explain the reason for a lack of weight given to the evidence of Mr Millard;

3. In failing to give the opinion of Dr Lim proper weight by misunderstanding the nature of psychiatric illness and finding inconsistences in the opinion that were not properly interpreted;

4. In giving less weight of the opinion of Dr Lim due to an inability to cross-examine the doctor despite all relevant matters having been provided to that doctor by the respondent in the provision of his opinion;

5. In speaking as to the state of mind of Dr Lim about begrudgingly making a psychiatric diagnosis;

6. In failing to give proper weight to the opinion of Dr Synnott by relating a failure to consider additional information that did not exist at the time of assessment;

7. In finding that the opinion of Dr Synnott did not support the loss of earning capacity claim nor any economic loss claim;

8. In finding that the opinion of Dr Hampshire should not be given very little weight due to the date of the report due to more known after January 2016, yet not disclosing a line of reasoning that would render the opinion at that point defective in any way;

9. In the weight given to the opinion of Dr Smith in respect of all periods, rather than as an opinion at that point in time and for the future;

10. In not giving any weight to the opinion of Dr Bogan;

11. In failing to give any weight to the evidence of Ms Tyler that the appellant was not capable of working overtime and should take short breaks after 30 minutes of driving;

12. In preferring the evidence of Dr Smith despite the preponderance of the evidence to the contrary and failing to give adequate reasons;

13. In the determination of matters relating to the assessment by Ms Memon in failing to delineate between examination on different dates;

14. In failing to have regard to the clear special experience explained to Ms Memon.

Ground 4 – Lack of or inadequate Reasons

1. In failing to explain what is meant by a “bald conclusion” or Dr So;

2. In failing to explain how or why the finding of no psychiatric testing or psychological testing by Dr So was deficient on balance and how it was relevant in the context of treatment provided;

3. In failing to adequately explain how and why the evidence or no injury loss and damage was consistent with the opinions of Drs So, Hampshire, Synnott, Lim and Bogan;

4. In analysing all of the evidence in order to assess what damages ought be recoverable for economic losses.

Endnote

Decision last updated: 23 June 2021