Singler v Ferguson

[2009] NSWDC 88

CITATION:	Singler v Ferguson [2009] NSWDC 88
HEARING DATE(S):	26/05/2008, 25/08/2008-27/08/2008, 03/11/2008-06/11/2008, 01/12/2008
JUDGMENT DATE:	15 May 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Verdict and judgment for the defendant. 2 The plaintiff is to pay the defendant’s costs of the proceedings as assessed or agreed. This order is suspended for a period of 5 working days to allow either party within that period to list the matter for further argument. 3 The exhibits will be retained for 28 days. 4 My reasons are published.
CATCHWORDS:	Motor vehicle accident - Liability - Plaintiff's credit - complaints of pain and disability disproportionate to injuries
PARTIES:	Tony Singler (Plaintiff) Jeffrey Ferguson (Defendant)
FILE NUMBER(S):	361/04
COUNSEL:	Mr D. Kennedy (Plaintiff) Mr T. Edwards (Plaintiff) Mr P. Cummings (Defendant)
SOLICITORS:	Bale Boshev Lawyers (Plaintiff) Moray & Agnew (Defendant)

JUDGMENT

1 Mr Tony Singler claimed that he was injured in a motor vehicle accident that was the result of negligence on the part of Mr Jeffrey Ferguson. The accident occurred on 7 April 2003 at the intersection of Maitland Road and Silsoe Street, Mayfield.

2 The issues involved in deciding the claim were:

1 The plaintiff’s credit.
2 Whether the accident was caused by the defendant’s negligence.
3 Whether there was negligence on the part the plaintiff that contributed to the cause of the accident.
4 The extent of the plaintiff’s injuries and disabilities resulting from the accident.
5 The damages, if any, to be awarded in respect of those injuries.

ISSUE 1 – The plaintiff’s credit

3 The defendant put the plaintiff’s credit firmly in issue by alleging serious and fundamental dishonesty in his evidence to the court, doctors and other health care advisers; his apparent disinclination to return to work; inconsistencies between his evidence to this court and that presented to the Family Court; and inconsistencies in his evidence that were designed to indicate that his current heavy use of cannabis was a consequence of the accident.

4 This alleged lack of credit was directed at both the issue of liability and the extent to which the plaintiff was genuinely injured or disabled as a result of the accident. The matters that were of particular concern in dealing with the plaintiff’s credit were as follows.

5 The claimed injuries: The statement of particulars claimed that the plaintiff suffered injuries to his back, neck and both shoulders. The statement set out an extensive list of disabilities affecting the plaintiff’s cervical spine, lumbar spine, left shoulder and arm, right shoulder and arm, head and sexual function as well as psychological disorders.

6 The plaintiff said that he felt no pain at the time of the accident but that when he turned to speak to a police officer at the scene of the accident he felt a spasm on the left hand side from his ear, through his neck and shoulder. One or two nights later he started to suffer from back pain. He claimed that his pain affected him…