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Written by Peter Carter

October 13, 2010

After a five-day hearing in Mackay, the Supreme Court last month handed down judgment for the plaintiff in a liability admitted motor accident claim* – where the plaintiff scored possibly the lowest ever tally on Queensland’s witness credibility index.
The remarkable feature of the case was not so much the verdict – a miserly $11,000 –  but the absolute unreliability of the plaintiff’s evidence.

Mr Phillips – a 22-year-old wellness coach represented by Shine Lawyers – claimed psychological symptoms. Some of his more colourful claims included: a compulsion to sweep his flat from North to South and then East to West every morning; having to eat lamb for breakfast, pork for lunch and beef for dinner (for strength and courage); a compulsion to add up the numbers on all the number plates he saw while driving to calculate the square root of the total; having to peel citrus fruit every afternoon at 2 p.m. without spilling any juice (so he would live for another day); avoiding driving on cloudy days or before 10 a.m. and after 2 p.m.; having voices in his head and loss of libido that caused the end of his relationship with his girlfriend. He also claimed to be socially withdrawn and “went out only when completely necessary”.

The expert psychiatrist who diagnosed PTSD, anxiety and various phobias modified her opinion after Suncorp surprised everyone at the trial with video surveillance evidence.

Scenes from the DVD it produced showed an apparently cheerful plaintiff surfing, driving at all times of the day, jogging, playing tennis, holding hands with his girlfriend and engaging in animated conversation with companions at a café – the very things that he claimed his condition prevented him from doing.

His evidence-in-chief – given by statement rather than orally – attempted to explain his past drug use and convictions but omitted to mention further pending drug charges and understated a very high level of drug consumption, that His Honour considered proven from medical records.

He also grossly misrepresented his employment history when he had applied for work and was adventurous in claims for income tax deductions.

The judgment makes entertaining reading and is superbly instructive on how Murphy’s law works with disingenuous plaintiffs.

Mr Phillips’ lawyers were probably surprised by many of the bombshells that were detonated at trial – not the least by the DVD and the pending drug charges.

Suncorp is exempted from disclosing documents relating to these under section 48 (3) of the MAIA to “the extent that the disclosure would alert the claimant to the discovery of” a suspected fraud.

The concealment of a well laid trap certainly makes excellent theatre and allows us to chortle loudly over someone caught red handed. “Fair game”, I hear you say.

Clearly, whether you agree with it or not, the exemption is a tilting of the playing field.

But what is the basis of allowing insurers to surprise claimants in this way? Does it further the interests of justice? Would not the insurer have succeeded even if the DVD had been disclosed? Would the expense of a five-day trial have been avoided if the disclosure exemption had not applied? What real punishment does a deceitful claimant suffer? Why does the exemption only favour defendants?

Everyone knows that personal injury claims are conducted speculatively.  Government policy even relies on this to provide what currently passes for access to justice. Yet the same policy that can provide such excellent amusement also forces lawyers acting speculatively to absorb costs, in this case for a 5-day trial and weeks of preparation.

Is it reasonable to punish unknowing lawyers in this way?  Does the end justify the means?

Such punishment necessarily inhibits the lawyers’ ability to offer their services to other claimants who are likely to be more deserving.

Opinonian asks if it would be sensible to remove the exemption or alternatively, to require defendants to disclose video surveillance etc to the legal representatives of the opposite party, say 14 days prior to trial. If there was concern about a plaintiff subsequently attempting to repair its case, sanctions could be included such as prohibiting absolutely any further medical reports or prohibiting the plaintiff’s lawyers from disclosing any details to their client.

* Phillips v Everingham [2010] QSC 374

Categories: Law practice , Personal Injury , Opinonian , Litigation & Law Practice

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