Nicholas by her Tutor Jones v Jimenez

[2020] NSWDC 71

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nicholas by her Tutor Jones v Jimenez [2020] NSWDC 71

Hearing dates:

24-25 February 2020, 03-05 March 2020

Date of orders:

31 March 2020

Decision date:

31 March 2020

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

Proposed Orders:

 

(1) That the tutor, Taleigha Jones, be removed as a tutor;

 

(2) That there be judgment and verdict for the defendant;

 (3) That the plaintiff pay the defendant’s costs on a full indemnity basis.

Catchwords:

TORTS – Negligence – motor vehicle accident – personal injury – whether compensable injury was suffered – whether plaintiff suffering from conversion disorder or malingering – case significantly determined by findings as to credit of plaintiff

 

DAMAGES – where claim for past care dependent on findings as to credit – where claim for out-of-pocket expenses dependent on claim for past care

 

PRACTICE – Removal of tutor

 

COSTS – Indemnity costs

  Other matters – matter referred to appropriate authorities

Legislation Cited:

Civil Procedure Act 2005 No 28 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Category:

Principal judgment

Parties:

Dianne Nicholas (Plaintiff)
Taleigha Jones (Tutor)
Leanne Jimenez (Defendant)

Representation:

Counsel:
Ms E. Welsh (Plaintiff)
Mr G. Watson SC (Defendant)
Ms C. Allan (Defendant)
Solicitors:
Bryden’s (Plaintiff)
Hall and Wilcox (Defendant)

File Number(s):

2018/207435

Publication restriction:

None

Judgment

Introduction

1. These proceedings concern a motor vehicle accident which occurred at St Mary’s on 16 September 2016. Initially the plaintiff claimed damages in excess of the court’s jurisdictional level. Later particularisation of the plaintiff’s claim revealed a claim in excess of $695,000.

2. On 3 March 2020, following developments to which I shall later refer, the plaintiff’s claim was substantially confined, such that from that date, the plaintiff’s claim was limited to:

1. Past out-of-pocket expenses in the sum of $1,342.80

2. Past care in the sum of $25,114.95

3. The total claim therefore can be seen to be $26,457.75.

4. In final submissions the plaintiff, through her counsel, conceded that if I found the plaintiff was not disabled, as she alleges in April 2017, then the claim for past care must fail, taking with it the claim for out-of-pocket expenses.

5. Notwithstanding the meagre amount finally in dispute, the matter unfortunately occupied the Court’s, and the parties’ time for four and a half days.

6. The parties were agreed that the plaintiff’s case falls to be determined by my credit findings in relation to the plaintiff.

7. As a consequence of the foregoing, and cognisant of section 56 of the Civil Procedure Act 2005 No 28 (NSW) (Civil Procedure Act). I will provide this judgment in a form which is as brief as I can justly make it, and certainly in a form which does not do justice to the helpful submissions of the parties.

The Accident

8. The accident occurred at approximately 2.40pm on 16 September 2016. The plaintiff was driving her motor vehicle in an easterly direction on Charles Hackett Drive in St Mary’s. The defendant was travelling in a southerly direction on Carinya Avenue. As the plaintiff approached the intersection of Carinya Avenue and Charles Hackett Drive, the defendant, in disobedience of a give way sign, turned right, positioning her vehicle in front of the plaintiff, who collided with the midsection of the defendant’s car in what is commonly referred to as a “T-bone” collision. The speeds involved were not great.

9. Initially the defendant put breach of duty of care in issue. In addition, the defendant put in issue contributory negligence. On the final day of hearing the defendant informed the court that these matters were now conceded, with the effect that the only live issue in the proceedings was whether the plaintiff had suffered any compensable injury as a result of the accident.

The Aftermath of the Accident

10. An ambulance attended at the scene of the accident, and the plaintiff was conveyed to the Nepean Hospital, where she was admitted. The records of the ambulance officers indicate that the plaintiff was lucid, and capable of describing the circumstances of the accident and her injuries.

11. Upon admission to Nepean Hospital she was again assessed by triage staff as being coherent and capable of describing both the accident and her injuries.

12. The hospital notes indicate that on the first day and night of her admission she refused the use of a bedpan and instead insisted on walking to the toilet. This occurred on a number of occasions. The day after admission the plaintiff began to show neurological symptoms. Relevantly, three days following admission, she was observed to have her left hand in a clenched, fist-like, position. The plaintiff claimed to medical staff that she was unable to straighten her hand. In addition, six days after admission the plaintiff was observed to have her left foot had turned inwards, with the affect that she could not place it flat on the floor. She claimed, as a consequence, that she was unable to walk. The plaintiff’s condition therefore was apparently serious, involving, as it did, the practical loss of use of her left hand and left foot.

13. Faced with these symptoms, staff at the Nepean Hospital undertook extensive neurological testing of the plaintiff. These tests failed to disclose any organic cause of the plaintiff’s asserted disabilities. At the conclusion of this extensive testing the treating neurologists were driven to conclude that the plaintiff’s symptoms were attributable to the psychiatric condition known as conversion disorder. It should be noted that this was a diagnosis which, technically at least, fell outside the field of expertise of neurologists.

14. I say this with no criticism to be conveyed to the hospital neurological staff. As there was no physical basis for the symptoms, the proposition that the cause of the symptoms were psychological or psychiatric must have seemed hard to resist.

15. Importantly however, notwithstanding the fact that the hospital records suggest that the plaintiff may have been seen by psychologists and psychiatrists, there is no evidence of any diagnosis of conversion disorder by either treating psychologists or psychiatrists.

16. In addition, the hospital records are silent as to whether any clinician at the Nepean Hospital who was treating the plaintiff turned their mind to the possibility that the plaintiff’s symptoms were feigned, thus effectively negating a diagnosis of conversion therapy.

17. The plaintiff remained at the hospital for three and a half months.

18. Prior to the accident, the plaintiff asserted that she was providing care for her aged father, and that following discharge she was neither capable of caring for him, nor for herself. The consequence asserted by the plaintiff was that she required assistance in domestic tasks, such assistance being provided by her daughter. The plaintiff alleged she was confine to a wheelchair, and occasionally to a walker.

The Plaintiff’s Evidence

19. The plaintiff gave evidence in the proceedings. She presented as being unable to enter the witness box due to her immobility, and gave her evidence from the well of the court in a wheelchair. She gave evidence that the clenching of her left hand and the inability to place her foot on the ground were continual problems, which neither fluctuated in intensity, nor improved or worsened over time [Tp 60.29-48, 62.3-22, and 63.44-49]. The plaintiff gave evidence that she was entirely reliant on either a wheelchair or walker, and could not drive a motor vehicle [Tp 19.23-38, 61.38-42, and 50.48-49]. She said that she could not lift her left hand above her shoulder [Tp 63.3-33].

20. Unfortunately for the plaintiff, the defendant had engaged investigators to investigate the extent of her alleged disabilities. These investigations resulted in video surveillance of the plaintiff which was obtained on 30 November 2017 and 10, 19 and 29 December 2019 (Exhibits D7 and D8). The plaintiff in her evidence conceded that the video images in the surveillance footage in fact portrayed her. The video surveillance evidence showed the plaintiff variously driving a motor vehicle, walking unaided and in an unimpaired fashion through a suburban shopping centre, and in the course of so doing, retrieving retail items with her left hand from shelves above the height of her shoulder. She was shown to be loading and unloading a sedan motor vehicle without difficulty.

21. The plaintiff had earlier given evidence that she was unable to tolerate a shoe on her left foot, and was restricted to wearing a surgical stocking on her left foot. The video surveillance evidence showed her to be was walking without the slightest difficulty, while wearing a shoe on her left foot.

22. The plaintiff, when she gave her evidence before me, carried her left hand in the clenched position to which she alleged that her hand was confined. She also presented with her left foot turned inward and resting on its outer edge such that it was ostensibly impossible to place it flat on the ground. She also wore a surgical stocking on her left foot.

23. In addition, the plaintiff presented as a person who was very poor in memory and indeed, as her counsel accepted, presented as a person who may be suffering from an intellectual deficit of some description [Tp 274.43-47].

24. When confronted with the video evidence the plaintiff alleged for the first time that, contrary to her earlier evidence, her disabilities were not unchanging but rather were quite variable. She stated on numerous occasions that she had “good days and bad days” [See for example: Tp 73.12-16]. The video footage was apparently capturing various “good days”. She attempted to justify her presentation in court in a wheelchair, in the manner which I have earlier described, as being attributable to the fact that her condition had worsened since the dates of the video evidence [Tp 73.38-43].

25. Mr Watson SC, who appeared for the defendant, obtained from the plaintiff admission that her evidence given to the Court prior to the playing of the video surveillance evidence was inconsistent with that video surveillance evidence. On numerous occasions Mr Watson invited the plaintiff to explain the discrepancy.

26. She was unable to do so.

The Evidence of Theresa Jones

27. Theresa Jones is the plaintiff’s sister-in-law. She is married to the plaintiff’s brother. She was candid in saying her relationship with the plaintiff was not good.

28. Mrs Jones gave evidence that she had been in the plaintiff’s company since the accident on four formal family occasions. She said that in addition she had seen the plaintiff up to 15 times at informal family occasions.

29. The formal occasions were two weddings and two funerals. Mrs Jones gave evidence that on each of these occasions the plaintiff was neither on a walker, in a wheelchair, nor walking with the aid of a walking-stick. She said that the plaintiff did not have an immobilised left hand. She did not have her left hand clenched as a fist. Far from having any inability with speech, she spoke very plainly. At the weddings, she danced. The first wedding was in November 2017. The second was in September 2019. On the second occasion she was seen holding a baby in both hands, raising the baby to eye height, and returning it to her lap [Tp 174.43-175.4].

30. The two funerals attended by both the plaintiff and Mrs Jones occurred on 22 July 2019 and 19 August 2019. At the funeral on 22 July 2019 the plaintiff delivered a eulogy [Tp 176.43-50]. The woman who gave evidence before me, with speech patterns suggestive of intellectual deficit, simply could not have delivered a eulogy. I took this proposition to be accepted by Ms Welsh [Tp 274.43-47].

31. Ms Welsh submitted that I should not accept the evidence of Mrs Jones, which submission I reject. I unhesitatingly accept her evidence. It is entirely consistent with the video surveillance evidence. Ms Welsh for the plaintiff pointed to the fact that the 15 informal occasions in which Mrs Jones was in the company of the plaintiff, who was exhibiting no disabilities, could not be proven to have occurred before November 2017. Indeed Mrs Jones was unable to be specific as to the timing of the informal gatherings, and as such I do not find there is evidence of Mrs Jones observing the plaintiff without the symptoms that she describes prior to the first wedding in November 2017.

The Adelaide Trip

32. At times the plaintiff’s affirmed evidence reached an almost tragicomic stage. She denied that since the accident she was able to travel interstate [Tp 115.25-36]. She then admitted travelling to Adelaide after her accident [Tp 116.5-10].

33. She was shown photos which were posted by her on Facebook. She confirmed that these photos portrayed scenes from the Adelaide trip. She confirmed that the photos were of the plaintiff and her family (Exhibit D6). At least one photo clearly showed the plaintiff with her left foot, in a shoe, flat on the ground. When confronted by this image the plaintiff suggested that this was attributable to the fact that she was being supported in the photo by those who stood next to her [Tp 119.25-34].

34. This was a preposterous proposition. The photo displayed what could only be described as a typical family group photo where each person had an arm around the torso of those who stood beside them. No one was physically supporting anyone else in this photo.

35. I described this evidence as tragicomic as it demonstrated to my mind that, even when she had been revealed as being untruthful, the plaintiff continued to give fanciful and untruthful evidence almost at will, without regard to the reality of the contrary evidence with which she was confronted.

The Plaintiff’s Criminal Record

36. The plaintiff has an extensive criminal record, primarily for offences of dishonesty. She has been imprisoned on three occasions. The plaintiff claimed to have little recollection of her criminal past [Tp 120.1-128.25].

37. The plaintiff’s extensive criminal record involving offences of dishonesty, in the absence of other reasons to doubt her credit, may not have necessarily had an impact on my assessment of the plaintiff’s capacity and willingness to tell the truth. When this fact however is added to the blatant dishonesty which the plaintiff exhibited in the witness box under affirmation, it has had a significant confirmatory effect on my ultimate evaluation of her credit.

38. The plaintiff’s criminal record however goes beyond being merely an evidentiary integer in my consideration of her credit as the timing of the latest offence with which she has been charged and convicted, namely a shoplifting offence in April 2017, is important. There is no suggestion in the material before me going to the circumstances of this offence that the offence was committed when the plaintiff was in a wheelchair, a walker, or was anyway restricted in her mobility. Similarly there was no suggestion that her left hand was in any way lacking in dexterity, such as to detract from her capacity to commit this species of larceny. When confronted with these facts, the plaintiff attempted to repair some of the damage which the fact of her conviction for this offence in April 2017 had for her credit, by attempting to suggest that she was, at the time, aided by a walking stick. This was the first time that she had ever mentioned that she used a walking stick, and I do not accept her evidence.

39. The timing of the 2017 shop lifting offence has a further potentially important legal effect in the proceedings. This is so as it was conceded by the plaintiff that a finding by me that the plaintiff was not disabled as she alleges at the time of the shoplifting offence (April 2017), is fatal to her claim for past care. The plaintiff then went on to concede that if that claim fails, the plaintiff’s claim for past out-of-pocket expenses also fails. As such, the plaintiff concedes that an adverse finding in relation to the April 2017 shoplifting offence is fatal to her damages case.

40. As I have indicated, I have made such a finding.

The 2014 Accident

41. The plaintiff was involved in a motor vehicle accident in 2014. She claimed very substantial damages in respect of what on its face appears to be a mirror image of her complaints in the present case. I say a “mirror image” as the limbs affected were alleged to be on her right side but otherwise substantially similar. The evidence discloses that in that case the insurer had also obtained video surveillance evidence in relation to the plaintiff, and that when confronted with that video evidence the plaintiff settled the proceedings for some $30,000, a fraction of the amount claimed.

42. The defendant submitted that the present proceedings should be seen as a duplication of fraudulent proceedings in 2014.

43. As the details of the 2014 proceedings were far from clear, and the video surveillance footage from that matter was not adduced in evidence, I am not prepared to draw the inference urged upon me by the defendant. (Briginshaw v Briginshaw (1938) 60 CLR 336).

Two Sets of General Practitioners

44. The defendant tendered extracts from the medical records of the Penrith Mall Medical Centre (Exhibit D13). These documents were obtained under subpoena.

45. The plaintiff’s general practitioner on whom she attended in relation to the matters, inter alia, relating to the motor vehicle accident was a Dr Poon. Dr Poon does not practice at the Penrith Mall Medical Centre, she practices at High Street Family Doctors of St Mary’s. Dr Poon’s notes tend to corroborate a history given to her by the plaintiff of the motor vehicle accident, and the disability about which she now complains.

46. Tellingly, the medical notes of the Penrith Mall practice demonstrated that the plaintiff did not report to the general practitioners at that practice either the fact of the motor vehicle accident, or its alleged resultant disabilities. That practice’s medical notes are entirely silent as to the car accident and its alleged consequences. The medical notes did not disclose that the plaintiff attended at the medical practice in either a wheelchair or a walker, or for that matter, a walking stick. Similarly, the medical notes make no reference to any disability in relation to the plaintiff’s left hand or left foot.

47. The defendant submitted that I should draw the inference that the plaintiff, as part of the fraudulent scheme which underlies her claim in these proceedings, avails herself of the services of two sets of general practitioners; namely Dr Poon and her colleagues before whom she exhibits the symptoms about which she complains in these proceedings, and the doctors of the Penrith Mall Medical Centre before whom she does not.

48. I believe that that submission is well founded, and I draw that inference.

49. The issue of attendance on general practitioners raises a further issue which in my view is also telling against the plaintiff’s credit. That issue is that notwithstanding that on her case she suffers what is in any view a significant psychiatric illness, which manifests itself in serious physical disabilities, she has not sought and indeed has refused psychiatric and psychological treatment.

50. The reason for that failure to seek treatment, in my view, is clear. The plaintiff is feigning her injuries.

The Medical Evidence

51. I propose to deal with this aspect of this case with particular brevity.

52. Associate Professor Burnside was retained by the plaintiff. He saw the plaintiff on 24 May 2019 and opined that:

Although she sustained an injury to her neck, her ongoing symptoms are minor crepitus only, and this seems to be little or no pain.

53. The plaintiff relied on the report of Professor Spira, a consultant neurologist who opined as follows:

Overall it is my view that Ms Nicholas may be demonstrating conversion disorder but it is equally possible that her signs represent malingering. There are major inconsistencies in the physical examination and her comments regarding her having no proprioception or cutaneous sensation in her left limbs cannot be reconciled with her being able to walk, even on a walking frame.

54. I believe that the following are matters relevant to Professor Spira’s fairly guarded diagnosis. The first is the fact that he is not a psychiatrist and technically the diagnosis of severe conversion disorder is outside his area of expertise. I should emphasise that I mean no disrespect to him by that comment, as I take Professor Spira’s opinion to mean that he was unable to find any physical basis for the symptoms with which the plaintiff presented, and thus was forced to fall back on a psychiatric cause.

55. The second matter is that in my view the plaintiff, when she presented to Professor Spira in the disabled manner as she obviously did, was feigning her disabilities. In that circumstance it was hardly surprising that Professor Spira came to the tentative conclusion which he did.

56. I also have not the slightest doubt that had Professor Spira seen the video surveillance material, he would have expressed a different view.

57. The plaintiff also relied on the report of Dr Klug, a forensic psychiatrist. He expressed the view that on the balance, it was likely that the plaintiff suffered from conversion disorder.

58. He did, however, inject a degree of caution into his diagnosis. He stated:

… it is reasonable to regard Ms Nicholas as suffering from a likely anti-social personality disorder. Some of the characteristics of the condition relevant to Ms Nicholas’ presentation include: a failure to conform to social norms with respect to lawful behaviour, deceitfulness; reckless disregard for the safety of self or others; consistent irresponsibility; and lack of remorse.

Therefore one has to question the integrity of her presentation.

Clearly it is impossible to diagnose Ms Nicholas’ presentation with certainty. … The likely formulation is that Ms Nicholas suffers from a probable conversion disorder with various dissociative features but also may be suffering from a factitious disorder or malingering.

59. Once again, in my view the plaintiff was deliberately misrepresenting her disabilities to Dr Klug.

60. Dr Klug’s reservations about the plaintiff’s stated symptoms are telling. If either the plaintiff had presented honestly to Dr Klug, and/or had he seen the video surveillance, I have no doubt that he would have rejected the possibility of conversion disorder, and adopted the conclusion that she was malingering.

61. The defendant relied on a report by Dr Fernando Roldan, a clinical psychologist, who conducted psychometric tests on the plaintiff. These tests involved internal checks to guard against feigned history being provided by the patient. One such test was a “test of memory malingering”, his conclusion from that test was:

… well within the range … associated with feigned and/or exaggerated cognitive disability

62. To a similar effect he undertook a word choice test, as a result of which he opined:

… well within the range that has been found to be associated with deliberate underperformance

63. Dr Roldan went on to state:

… her description of various aspects of her background history that appeared to deliberately downplay, minimise or ignore relevant ‘undesirable’ background factors

64. And:

… no evidence of subject accident related, brain trauma mediated, cognitive or psychological impairment …

65. Dr Selwyn Smith, a consultant psychiatrist, examined the plaintiff on behalf of the defendant. This occurred in February 2019 when she was again presenting with severe symptoms afflicting her left hand and left foot.

66. Dr Smith concluded with an opinion in the following terms:

In my opinion, it is more likely than not that Ms Nicholas is falsifying her physical and psychological signs or symptoms

67. Dr Smith was required for cross-examination. In cross-examination it was put to him that the plaintiff while in hospital exhibited a drooping of the face which disability would be impossible to feign. Dr Smith resolutely disagreed [Tp 201.38-46].

68. Dr Smith was not shaken from his expressed opinions in any manner, and I have no reason to do anything other than to accept his evidence in its entirety.

The Plaintiff’s Change of Position

69. As I have previously indicated, the plaintiff’s case was that she suffered the disability to her left hand and left foot from the time of the accident until the day that she gave evidence before me.

70. That case was abandoned on 3 March 2020, after which time the plaintiff merely sought damages for out-of-pocket expenses in the period 22 December 2016 to 31 October 2017, and past care expenses from the date of her discharge from hospital until November 2017. There was no evidentiary basis which dictates that the plaintiff to limit her claim for past care to November 2017. By this I mean to say that there was no medical evidence to suggest that the plaintiff’s disabilities about which she complains had resolved by November 2017. More fundamentally the plaintiff did not give evidence to that effect. To the contrary, as will be recalled, the plaintiff presented in 13 February 2019 to an appointment with Dr Smith exhibiting the disabilities about which she complained. She also did so while giving her affirmed evidence before me.

71. The only conceivable explanation for the plaintiff’s change of position is a realisation that following the admission into evidence of the video surveillance material, the first instance of which involves video surveillance recorded in November 2017, she despaired of the possibility of a finding that she suffered any disability after that date, and was attempting to retrieve something from the wreckage of her case, to use the vernacular

72. This change of position culminated in Ms Welsh for the plaintiff in her outline of written submissions submitting that “the plaintiff has destroyed her own credit”. This is a submission which is difficult to resist.

73. As a consequence of this change of position, driven as it inevitably was by the collapse of the plaint’s credit, Ms Welsh was effectively forced to abandon her client’s evidence, and suggest that the case for disability could be made out by reference to the Nepean Hospital medical records. This submission involved the proposition that the records demonstrated that within days after the accident the plaintiff commenced to exhibit the disabilities about which she now complained. This was a difficult forensic road to hoe, involving, as it did, the proposition that it was appropriate for me to find the plaintiff may well be untruthful in respect of the period after November 2017, but that she should be accepted on her oath in respect of the period prior to that date.

74. I am unprepared to do so.

75. True it is that the Nepean Hospital medical notes do disclose that a short time after admission the plaintiff complained of symptoms consistent with her claims in these proceedings.

76. As I have indicated, however, there is a glaring omission from the Nepean Hospital records, namely that the records nowhere suggest that anyone among the hospital medical staff has placed in issue the credibility of the plaintiff’s complaints. No hospital medical staff member seems to have seriously considered whether the plaintiff was lying, and thus feigning her injuries. By this comment I do not mean to be critical of the medical staff at the hospital. They were treating the plaintiff and doing their best to cure her. They generously treated the statements of the symptoms by the plaintiff as being genuine.

77. I do not accept that the plaintiff’s statements of her disabilities were truthful at any stage of the narrative, from accident to witness box, as such the Nepean Hospital records, based as they are on the plaintiff’s lies, cannot support her alternate case.

The Evidence of Melissa Jones

78. The plaintiff called her daughter, Melissa Jones, to give evidence as to both the plaintiff’s condition while in hospital, and also as to the plaintiff’s need for care, which Ms Jones claims to have provided to her mother after her discharge from hospital.

79. The plaintiff did not suggest that Ms Jones was an independent witness. This concession was properly made as she was clearly within the plaintiff’s camp. She alleged her relationship with her mother was indifferent, however she indicated that she lived in a house owned by her mother, and rather than pay her mother rent, paid $1800 per month on account of her mother’s mortgage [Tp 150.3-29]. Ms Jones thus to some extent had a vested interest in her mother’s success in the proceedings.

80. I would be not disinclined to accept Ms Jones’ evidence for that reason alone, however, that said there are other reasons why I am not able to rely on her evidence as a witness of truth. Ms Jones gave evidence that she visited her mother on the day of the accident. In summary she stated that her mother:

1. “…looked like she had had a stroke” [Tp at 143.3]

2. “her face was droopy” [Tp 150.50]

3. “she couldn’t talk properly” [Tp 151.18]

4. she couldn’t be understood “…because she was stuttering” [Tp 151.23-24]

5. she was unable to communicate in full words or sentences [Tp 151.26-27]

6. her hand was clenched [Tp 151.41-43]

7. she was unable to get out of bed and walk [Tp 152.12-13]

8. she was paralysed down the left leg [Tp 152.15-16]

81. These assertions are contradicted by the notes of the Nepean Hospital which narrate observations as to the 24 hours following her admission. The notes reveal in summary:

1. At all times she was lucid, communicative and coherent;

2. She complained of no disability to her left hand; and

3. She refused a bedpan and insisted on a number of occasions on walking to the toilet.

82. When confronted with these inconsistencies Ms Welsh suggested that Ms Jones must have been confused as to when she observed her mother, and that her evidence should be taken to refer to a period after admission, where the hospital records suggest that she apparently was exhibiting symptoms of the type described by Ms Jones.

83. I do not accept that this is the case. To visit one’s mother in hospital on the very day on which she has been apparently injured in a car accident, is an inherently different experience from a subsequent routine visit.

84. Mr Watson SC, for the defendant, was very specific in his questioning of Ms Jones on this point. His initial question and the answer in relation to the topic were in the following terms [Tp 150.41-43]:

Q. Now, could you tell us again, you went to see your mother on the very day of the 2016 motor accident?

A. Yes, on the very day.

85. The emphasis is mine.

86. I do not consider Ms Jones to be a reliable witness.

Conclusion on Credit

87. I reject the plaintiff’s evidence in its entirety.

88. I find that notwithstanding the fact that she took an affirmation on several occasions, she lied on her affirmation in the proceedings.

89. I find that these lies were part of an organised plan designed to deceitfully obtain monies to which she was not entitled. This involved the feigning of her injuries over a considerable period of time, and the proffering of lies to the medical staff of the Nepean Hospital, the resources of which she squandered over a period of months.

90. I find also that the plaintiff feigned her injuries and lied not only to her treating medical practitioners, but similarly feigned her injuries when dealing with both medico legal experts engaged on her behalf, and those engaged on behalf of the defendant.

91. For more abundant caution I should say I reject the plaintiff’s case that notwithstanding her lies she should be accepted as having the symptoms about which she complains between the dates of the accident and November 2017.

92. On the contrary I find that the plaintiff’s case has been based on a farrago of lies from the outset.

Referral of the Matter to Appropriate Authorities

93. Given the unequivocal nature of my findings on the evidence of the plaintiff and her motives, I do not believe that the matter can be allowed to conclude merely with a judgment of the court in relation to liability, and costs.

94. The rule of law, and more specifically the functioning of the judicial system are heavily reliant on witnesses, when giving sworn or affirmed evidence, do so by doing their best to give truthful evidence. The plaintiff in this case has treated her affirmation with contempt, and felt entitled to lie, and lie consistently, while giving evidence.

95. Her aim, in my mind, was to obtain financial reward to which she was not entitled.

96. I propose to direct that the registrar of the Court refer the papers to the appropriate authorities for consideration as to whether criminal offences may have been committed by the plaintiff in relation to the commencement and maintenance of the proceedings, including her affirmed evidence in the Court.

Removal of the Tutor

97. On 7 November 2019 an order was made appointing the plaintiff’s granddaughter as her tutor. The basis for the application was the psychiatric report of Dr Klog to the effect that the plaintiff suffered from a psychiatric condition which in his opinion made it appropriate for such an appointment to be made.

98. On 25 February 2020 I gave the defendant leave to file in court a notice of motion seeking removal of the tutor. Unfortunately counsel for the plaintiff was unable to deal with the matter during the hearing, as she was unable to obtain instructions from the tutor, who I was informed, was ill. No doubt it may have been necessary for Ms Welsh to also seek instructions from the plaintiff. I have described this situation is unfortunate with no pejorative reflection on Ms Welsh, but merely referring to the fact that given the amount of damages now involved in the proceedings, and the amount of time which is already expended on it, it would have been overwhelmingly preferable to resolve the question within the confines of the dates allocated for hearing.

99. Be that as it may, my prima facie position is that it is appropriate that the tutor be removed. On the findings of fact which I have made the plaintiff was not suffering from any relevant psychiatric condition at any stage. Moreover, after the plaintiff’s change of position it must be taken to be the plaintiff’s case that she suffers no psychiatric illness from November 2017. As such, on either basis it seems to me that there are no grounds which continue to justify the continued appointment of the tutor.

100. Thus in my tentative view, it would not be in the interests of justice for the current situation to continue. My tentative view is that it is appropriate that the plaintiff suffer judgment against her personally (that is to say without the intervention of the tutor) so that she is bound accordingly. In addition it is prima facie preferable she should be personally liable for the costs order which I will ultimately make.

101. I have discussed my views as being either “prima facie” or “tentative” as I have not heard the tutor in relation to this, and I will make directions which will permit this to occur, if that is required.

Indemnity Costs

102. The defendant also sought an indemnity costs order. The plaintiff’s position was that she was unable to deal with the issue before considering the Court judgment. My prima facie view is that, given my finding that the commencement and prosecution of the proceedings were entirely attributable to the plaintiff’s misconduct, it is appropriate that such an order be made.

103. Again, I have stated that my view is a prima facie one as I have not as yet heard the plaintiff’s position on the issue.

104. I will also make directions that will allow the issue to be argued, if required.

Proposed Orders

105. My present intention is to make the following orders:

1. Order that the tutor, Taleigha Jones, be removed as a tutor in these proceedings;

2. Order that there be judgment and verdict for the defendant;

3. Order that the plaintiff pay the defendant's costs on a full indemnity basis.

106. Should the plaintiff wish to be heard in opposition to either proposed order 1 or proposed order 3, her legal representatives should contact my associate notifying him of such desire, such notification to be made no later than 7 days from today’s date.

107. If I receive such notification I shall make orders for written submissions on any issue in dispute, with a view to deciding any such issue on the papers.

108. In the absence of such notification I shall make orders 1 to 3 as set out above.

*********

Amendments

08 April 2020 - Amended to insert Junior Counsel (Ms C. Allan) for the Defendant to the Cover Page.

05 May 2020 - Amended to insert possessive apostrophe to the word "defendant's" at para 105, proposed order (3).

Decision last updated: 05 May 2020