If the plaintiff at trial is found not to be credible, does that negate from the plaintiff’s right to damages?

In the recent case of Hoblos v Alexakis [2021] NSWCA 126, the NSW Court of Appeal found that whilst the credibility of an injured plaintiff is essential in proceedings, being a poor historian or exaggerating injuries suffered does not negate the plaintiff's right to damages.

 

Principles


  • The burden lies on the plaintiff to prove the injury or loss for which he/she seeks damages where the plaintiff suffers some injury but is disbelieved as to its extent - Todorovic v Waller (1981) 150 CLR 402; 1981 HCA 72
  • The legitimate scope of the Court of Appeal to set aside findings of fact by the primary judge is based upon the primary judge's assessment of the credibility of witnesses with reference to the principles in the decision of Fox v Percy (2003) 214 CLR 118

Background

On 8 March 2015, Mr Hoblos (plaintiff) suffered a soft tissue and psychological injuries a result of a motor vehicle accident. Mr Alexais (defendant) was found to be at fault and liability was admitted by his insurer. The insurer agreed to meet theplaintiff's medical and related expenses until a doctor retained by both parties reported that the plaintiff was demonstrating "abnormal illness behaviour" in February 2019. Following this report, the insurer ceased payments of his medical and related expenses.

The plaintiff commenced proceedings in the District Court of NSW. The primary judge found that the plaintiff's medical evidence had failed to prove his case to the necessary standard of proof, being the balance of probabilities. The primary judge indicated that the plaintiff had failed because whilst he may have had some kind of injury and/or disability arising from the accident, the manner in which the plaintiff presented, his inconsistencies, his exaggerations and consequently his unreliability would make an assessment of damages speculative. On that basis, the primary judge was unable to determine a monetary award on a rational basis and judgment was entered in favour of the defendant.

The plaintiff appealed that decision. The issue brought before the Court of Appeal was whether primary judge had conflated the tasks of determining liability and assessing damages.

Decision

After considering the medical evidence before the primary judge, the Court of Appeal found that the primary judge had erred in finding that the plaintiff had suffered no assessable loss or damage solely on the basis of the extent of his injury. The Court of Appeal also considered that the primary judge did not give proper weight to the relevant expert opinions and misunderstood the plaintiff's psychiatric diagnosis and its effect which ultimately led to the discrediting of the plaintiff.

Accordingly, the Court of Appeal set aside the primary's judge decision and found in favour of the plaintiff with damages to be assessed.

Why this case is important

(1) This case is important as it highlights that even in the event a plaintiff is found to be inconsistent or to be exaggerating their evidence, this will not necessarily result in the plaintiff being awarded no damages.

(2) This case is also important as it also highlights that there must be a separate determination as to whether the plaintiff has suffered loss or injury followed by an assessment to determine a sum of money that will fairly compensate the plaintiff for that loss or injury.

This case also establishes that if a plaintiff's entitlement to damages is established, the plaintiff will not be barred from being awarded those damages on the basis that the evidence they give was considered to be unreliable. In these circumstances, the Court provides further guidance in that if the primary judge considered that assessment of damages was difficult because of the state of the evidence, that judge’s task was to do the best he could, as explained in the decision in Harriton v Stephens in the High Court.

Contributors

Jessica Guindi Lawyer