Phillips v Everingham

[2010] QSC 374

SUPREME COURT OF QUEENSLAND

CITATION:

Phillips v Everingham & Anor [2010] QSC 374

PARTIES:

BEN PHILLIPS
(plaintiff)
v
SAM JAMES EVERINGHAM
(defendant)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second defendant)

FILE NO/S:

S217 of 2009

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

24 September 2010

DELIVERED AT:

Mackay

HEARING DATE:

3, 4, 5, 6 August and 13 September 2010

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff in the sum of $11,004.32.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where plaintiff claimed damages for psychiatric injury as a result of a motor vehicle accident – where liability admitted – whether plaintiff was a witness of credit – whether there was an evidentiary basis to support the plaintiff’s claim for psychiatric injury

Midwest Radio v Arnold (Unreported, Queensland Court of Appeal, 12 February 1999, No 4010 of 1998)

COUNSEL:

A. Philp SC for the plaintiff
G. Crow for the defendants

SOLICITORS:

Shine Lawyers for the plaintiff
Grant & Simpson for the defendants

1. McMEEKIN J:  The plaintiff, Mr Ben Phillips, claims damages for personal injuries suffered on the 22^nd of September 2006 as a result of a motor vehicle accident in which his sedan was struck by a large truck at an intersection. Liability is admitted.  I am required to assess damages.

1. Mr Phillips was born on the 20^th of August 1974 and so is presently aged 36 years. He was 32 years of age when injured.

The Plaintiff’s Case

1. Mr Phillips suffered injuries to his neck and right wrist.  Whilst symptoms were initially acute those physical injuries have resolved and did so relatively quickly.  The dispute relates to a claimed psychological injury.

1. The plaintiff’s evidence was that about three months after the subject accident, and following an incident with a truck at an intersection at Habana near Mackay, he commenced to experience insecurity and anxiety which steadily worsened.  The three month delay in onset of any symptoms is plainly not right – the plaintiff saw a psychologist, Ms Fisher-Nusenu, who performed an assessment on 13 October 2006.  That is within three weeks of the accident.  There is no mention of the Habana truck incident. He is described as then presenting in a “very anxious state” and displaying “severe symptoms of anxiety”.

1. The plaintiff says that he subsequently developed a constellation of symptoms.  They included the scratching of his skin whilst asleep to the point of drawing blood, excessive flatulence and faecal incontinence, urinary urgency, loss of libido and an inability to achieve an erection. He had poor concentration, irritability, restlessness, and recurrent thoughts of the accident.  He became socially withdrawn and went out only when completely necessary. He developed what he describes as “obsessive compulsive behaviours”[1] that included “strange ritualistic patterns”[2] before his day could start, such as sweeping his flat from North to South and East to West. He would avoid driving on cloudy days…