Pt v Shorey

[2001] NSWCA 127

CITATION:	PT v SHOREY [2001] NSWCA 127 revised - 13/06/2001
FILE NUMBER(S):	CA 40168/00
HEARING DATE(S):	26 April 2001
JUDGMENT DATE:	7 June 2001
PARTIES :	P T LIMITED (as Trustee for McNamara Property Trust) v SHOREY & Ors
JUDGMENT OF:	Handley JA at 1; Powell JA at 70; Davies AJA at 71

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 8770/97
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL:	C G Gee QC/P S Jones (Appellant) A S Morrison SC/A C Casselden (Respondents)
SOLICITORS:	Price Waterhouse Coopers Legal (Appellant) Stacks The Law Firm (Respondent 1) Stewart Cuddy Mockler (Respondent 2)
CATCHWORDS:	PERSONAL INJURY - damages - credit based finding that plaintiff not malingerer may not be overturned - causation - finding as to causal link between fall and conversion disorder may be overturned
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Jones v Bartlett [2000] 75 ALJR 1 Warren v Coombs (1979) 142 CLR 531 Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 HL
DECISION:	Appeal allowed. Orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40168/00

DC 8770/97

HANDLEY JA

POWELL JA

DAVIES AJA

7 June 2001

P T LIMITED (as Trustee for McNamara Property Trust) v ROSE SHOREY & ORS

The respondent suffered soft tissue injuries to her back in a fall. After some years she claimed that she could not walk. It was common ground that there was no physical reason why she could not walk. The appellant was found liable for the respondent’s injuries. Dodd DCJ assessed the plaintiff ’s damages at $555,212.55. The defendant appealed seeking a drastic reduction of the damages. The plaintiff cross-appealed seeking a massive increase in her damages.

The major issues in the plaintiff ’s case on damages were whether she was a malingerer and, if she was genuine, the question of causation. The Judge found that she was not a malingerer and that she suffered from a conversion disorder which arose from unresolved psychological conflict, and that the fall was a contributing cause of her disorder.

allowing the appeal (Davies AJA dissenting): (1) The Judge’s conclusion that the plaintiff was not a malingerer could not be disturbed: Abalos v Australian Postal Commission (1990) 171 CLR 167. (2) The Judge’s conclusion that a causal link was established between the fall and the conversion disorder was not based on his findings as to credit. It was an inference he drew from his primary findings with the benefit of the expert evidence. As such it was open to review on a re-hearing: Warren v Coombs (1979) 142 CLR 531. The plaintiff had not discharged the onus of proving a causal link between the fall and her conversion disorder and the appeal therefore succeeded.

ORDERS

(1) Appeal allowed;

(2) Judgment for the plaintiff for $555,212.55 and costs set aside.

(3) In lieu thereof substitute a judgment for the plaintiff for $68,911.05 with effect from 29 February 2000;

(4) By…