Stanford v Dermejian

Case [2020] ACTSC 151

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Stanford v Dermejian

Citation:

[2020] ACTSC 151

Hearing Dates:

28 October 2019 – 31 October 2019; 11 March 2020 – 13 March 2020; 15 April 2020

DecisionDate:

12 June 2020

Before:

Crowe AJ

Decision:

See [438]

Catchwords:

DAMAGES – PERSONAL INJURY – motor vehicle accident – where the accident was minor – whether the plaintiff’s ongoing symptoms were caused by injury or an underlying degenerative condition

DAMAGES – PAST AND FUTURE LOSS OF EARNING CAPACITY – whether disability insurance payments should be taken into account in assessment of damages – whether damages should be reduced

EVIDENCE – HISTORIES IN MEDICAL REPORTS – Application under s 136 of the Evidence Act 2011 (ACT) to limit use – application refused

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ss 45, 100

Court Procedures Rules 2006 (ACT) sch 2 pt 2.1
Evidence Act 2011 (ACT) ss 60, 136, 137

Transport Accident Act 1984 (Vic) s 104
Cases Cited:

Collins v Sydney Ports Corporation [2012] NSWSC 115
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Griffiths v Kerkemeyer (1977) 139 CLR 161
Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225
Langford v Tasmania [2018] TASCCA 1; 29 Tas R 68
Mason v Demasi [2009] NSWCA 227
National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569
Pasfield v Ugarkovic and Anor [2014] ACTSC 10
Richards v Mills [2003] WASCA 97; 27 WAR 200
Sibley v Milutinovic [1990] ACTSC 6
Sweedman v Transport Accident Commission [2006] HCA 8; 226 CLR 362
TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 3) [2015] FCA 1359

Transport Accident Commission v Sweedman (2004) 10 VR 31

Texts Cited:

Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12th ed, 2016)

Parties:

Seanna Stanford (Plaintiff)

Anna Dermejian (First Defendant)

Insurance Australia Limited Trading as NRMA Insurance (Second Defendant)

Representation:

Counsel

A Muller & L Edwards (Plaintiff)

J Pappas (First and Second Defendant)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

HWL Ebsworth Lawyers (First and Second Defendant)

File Number:

SC 61 of 2017

Crowe AJ:

Introduction

  1. On 4 September 2013, Ms Seanna Stanford (the plaintiff) was driving home from work when her car was struck from behind by a vehicle driven by Ms Anna Dermejian (the first defendant) (the accident). NRMA Insurance (the second defendant) is the compulsory third-party insurer of the first defendant. The defendants have admitted liability. The issue before the Court is the quantum of damages properly recoverable by the plaintiff.

  1. The plaintiff claims that at the time of the accident, she was on a career path leading to partnership in a major accounting and consulting firm, such as Ernst and Young (EY). The plaintiff says that the injuries she suffered in the accident and the related disabilities have caused the loss of her capacity to work at that anticipated level. The plaintiff says that her current work capacity…

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Stanford v Dermejian [2020] ACTSC 151
Case
[2020] ACTSC 151
Decision Date

CaseChat Overview and Summary

Stanford v Dermejian was a case before the Federal Circuit Court of Australia. The plaintiff, Ms Stanford, sued the defendant, Mr Dermejian, for damages arising from a motor vehicle accident. Ms Stanford claimed that the accident resulted in ongoing symptoms which she attributed to the incident, but Mr Dermejian argued that the symptoms were due to an underlying degenerative condition. The court had to determine the cause of Ms Stanford's symptoms and whether they were a result of the accident or a pre-existing condition. Additionally, the court needed to consider whether disability insurance payments should be taken into account when assessing damages and if the damages should be reduced accordingly.

The court addressed the defendants' objections to certain parts of the medical reports provided by Ms Stanford. The objections were based on the hearsay nature of the evidence. The defendants sought rulings under section 136 of the Evidence Act 2011 (ACT) to limit the use of these parts of the reports. The court found that the reports were relevant and admissible, and the objections were dismissed. The court considered the medical evidence provided by Ms Stanford's treating physiotherapist, Ms Missen, and sports physician, Dr Howse, who diagnosed chronic whiplash injury and a facet joint sprain of the cervical spine, respectively. The psychologist, Mr Sutton, found that Ms Stanford had subjectively high levels of cognitive disruptions but found no exaggeration or malingering of symptoms.

Ms Stanford was awarded damages for her injury. The court found that the evidence supported the conclusion that Ms Stanford's ongoing symptoms were caused by the motor vehicle accident rather than a pre-existing degenerative condition. The court also considered the issue of disability insurance payments and decided that they should be taken into account in assessing damages. However, the court found that the amount of damages should not be reduced based on these payments. The final orders included an award of damages to Ms Stanford for her injury, taking into account the disability insurance payments.

Orders

Orders of the court

See [438]

Background

Background to the litigation

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Evidence

Evidence Before The Court

The defendants took objection to selected parts of the histories and complaints recorded in reports from Ms Coghlan, Dr Eaton, Dr Champion, Dr Higgs and Dr Brooder. The objections were based on the hearsay nature of the evidence. The defendant sought rulings under s 136 of the Evidence Act 2011 (ACT) (Evidence Act) limiting the use of the identified parts of the reports. I have addressed those objections and the application for s 136 rulings at [337] to [352] below. All of the written reports tendered by the plaintiff were contained in the folders which became Exhibit P1. The plaintiff relied upon a number of reports of largely historic interest. The earliest in time was from the plaintiff’s treating physiotherapist, Ms Missen. It was dated 4 August 2015. It recorded a course of treatment consisting of 10 treatments between 20 December 2013 and 13 May 2014. In relation to any previous history of neck issues, the report referred to the plaintiff having suffered a knock to the head by a knee in 2005. The resulting problem was said to have settled quite quickly with chiropractic treatment. Ms Missen saw the plaintiff’s neck injury as being consistent with a “whiplash mechanism” from a rear-end motor vehicle accident. Her diagnosis was “chronic whiplash injury”. The next report chronologically is that from Dr Howse, sports physician, dated 26 August 2015. Dr Howse reported that the plaintiff had initially consulted him on 20 June 2014. She gave a history of having been in a motor vehicle accident in September 2013 and striking the posterior part of her head on the headrest. She had been experiencing discomfort in the lower neck region and shoulders, with intermittent tightness around the posterior head region. This was associated with intermittent headaches with some radiation of pain to the left shoulder region. She had had physiotherapy and chiropractic treatment which had produced some improvement. She was working full-time and not experiencing any obvious subjective concentration difficulties. Dr Howse concluded that the plaintiff had probably suffered a facet joint sprain of the cervical spine which had become chronic. He was not sure whether the headache was related to the neck injury or to a post-concussion syndrome. Dr Howse had referred the plaintiff to Mr Sutton for assessment. Dr Howse provided treatment consisting of injections of local anaesthetic into the trigger points of the plaintiff’s trapezius muscle. He last saw the plaintiff on 9 October 2014. Mr Sutton, psychologist, first saw the plaintiff on referral from Dr Howse on 7 August and 18 September 2014. Mr Sutton carried out neuropsychological testing of the plaintiff. He reported that she had subjectively high levels of cognitive disruptions having regard to her age, gender and education. On objective testing, the data given by the plaintiff was found to be valid; there was no exaggeration or malingering of symptoms. In a report to the plaintiff’s solicitors dated 24 July 2015, Mr Sutton expressed the following views:

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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