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