Arian v Nguyen

(2001) 33 MVR 37; [2001] NSWCA 5

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Damages
2. › Personal Injury
3. › Assessment
4. › Motor vehicle accident
5. › Credibility of plaintiff
6. › Effect of plaintiff's lack of credibility on medical evidence
7. › Whether trial judge entitled to discount medical opinions based on false histories given by plaintiff
1. Evidence
2. › Credibility
3. › Effect of adverse credibility finding on expert medical evidence
4. › Medical opinions based on history given by discredited plaintiff
5. › Whether trial judge entitled to reject medical evidence where foundation of opinions was unreliable information from plaintiff
1. Costs
2. › Successful party ordered to pay costs
3. › Misconduct by successful party
4. › Conscious exaggeration of claim
5. › Whether misconduct disentitles successful party to costs
6. › Whether misconduct must cause increased expense and delay
1. Costs
2. › Offer of compromise
3. › Judgment exceeding offer
4. › Failure of trial judge to consider offer of compromise
5. › Whether failure to consider Pt 39A r 25(6) District Court Rules vitiated exercise of discretion
6. › District Court Rules 1973 (NSW), Pt 39A rr 12, 25(6)

Quick Take

A trial judge exercising the costs discretion must take into account the fact that a plaintiff obtained a judgment exceeding the defendant's offer of compromise, even where the plaintiff has been found guilty of conscious exaggeration; failure to do so vitiates the exercise of discretion. While delay and increased expense caused by misconduct are highly relevant to departing from the usual costs order, they are not essential prerequisites. Payments by an insurer under s 45 of the Motor Accidents Act 1988 before liability is established are not capable of constituting admissions that injuries continued to endure between the date expenses were incurred and the date of payment.