July 9, 2021

An Appeal Court has ruled that evidence of “malingering and exaggeration” should not bar an accident victim who “exaggerated or feigned symptoms” from receiving substantial motor accident compensation for his injuries.

Khaled Hoblos – a 36yr-old Lebanese born bus driver – walked away from the March 2015 collision that wrote off his car.

The at-fault party’s CTP insurer admitted liability for transient injuries to his left knee and foot.

It promptly stopped paying depression-related treatment expenses in February 2018 on receipt of a report from jointly appointed forensic psychiatrist Selwyn Smith that considered Hoblos to be “more likely than not” demonstrating “abnormal illness behaviour”.

The bus driver’s Sydney District Court compensation ask, turned on the extent of any consequential psychiatric injury that three psychiatrists – Eddie So, Inglis Synnott (assessing impairment at 27%) and Robert Hampshire – had diagnosed as a major depressive illness.

Seizing on Dr Smith’s comments and those of orthopaedist Roger Rowe that there was no “pathological or radiological support for ongoing physical injury”, the insurer contended Hoblos had no compensable injury and that his presence in court and to examining specialists had been “nothing but an act” and his partner a “co-conspirator”.

Also persuaded by Dr Smith’s observation, trial judge Jonathon Priestley SC decided – in the absence of evidence as to what might cause a person to demonstrate abnormal illness behaviour – Hoblos was hyper-exaggerating and he and his partner were not at all credible witnesses.

The medical opinions, that supported the debilitating depression diagnosis, were disregarded by the judge as having no weight as they had been based on the claimant’s “unreliable and inconsistent accounts”.

Given the absence of ongoing physical injury, the resulting outcome for Hoblos was zero damages.

He filed an appeal arguing that exaggeration of symptoms should not invalidate the several diagnoses of severe mental illness.

The NSW Court of Appeal – without disturbing the primary judge’s findings that the plaintiff had exaggerated or feigned symptoms – agreed.

In separate judgments, Justices Richard White and Lucy McCallum reasoned there was no basis for the assumptions that the trial judge had made.

“People with major depression [can] give a presentation and account of difficulties which can be exaggerated or feigned,” wrote Justice White. “A person with a major depressive disorder might display abnormal illness behaviour at the same or at a later point in time”. He noted that such behaviour may indeed be a symptom of the underlying condition.

The insurer’s case that the two conditions were mutually exclusive relied on flawed logic and a “false dichotomy”, observed Justice McCalum, resulting in a hypothesis that was “as farfetched as it is improbable”.

Noting that its video surveillance produced nothing significant, she observed that the insurer’s argument would require the court to find Hoblos’ illness behaviour was a sham “only because he played it too well”.

While the inconsistencies, exaggeration and even “abnormal illness behaviour” might have made the assessment of damages more difficult, it was the trial judge’s duty to have assessed them and not “conflate” liability issues with damages.

“The law is clear that his Honour should have proceeded to quantify damages, however difficult that task may have been,” wrote Justice McCallum.

“Lawyers should be wary of dismissing medical assessments,” she pondered on the insurer’s case theory, “where they are reached bringing to bear clinical experience and medical expertise”.

The appeal court held that the plaintiff was suffering from major depressive disorder and that the plaintiff should be entitled to all consequential losses including loss of income etc.

It allowed the parties 28 days to lead arguments as to whether the damages should be re-assessed – as is the usual case by the trial court – or assessed by the appellate court on the available evidence given the “disproportionate” cost of remittal to the District Court.

Hoblos v Alexakis, [2021] NSWCA 126, White JA, McCallum JA and Davies J, 23 June 2021 Read case

Categories: car accident

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