What happened
Padash, a taxi driver, was injured in a rear-end collision in November 2016, and Dungan admitted liability. The dispute concerned aggravation of pre-existing lumbar degeneration, continuing pain and an adjustment disorder, and capacity to earn. Surveillance conflicted with his claimed physical restrictions, but the trial judge distinguished exaggeration from the existence of genuine pain.
The issues
Having found that accident-related physical pain and restriction had resolved by November 2017, the trial judge considered whether the accident nevertheless caused an enduring cycle of psychiatric harm and unemployment. The evidence separating degeneration from accident effects, the plaintiff's ultimate burden of proof and the meaning of the psychiatric opinions were central. On appeal, the decisive question was whether the later psychiatric symptoms were sufficiently connected to the original accident.
The court's decision
The trial judge attributed the continuing adjustment disorder to the accident and allowed past and future earnings losses, expenses and lawn-mowing costs. In Dungan v Padash [2021] NSWCA 66, the majority held that the accepted psychiatric evidence linked the ongoing disorder to current pain and did not establish accident causation for losses after November 2017, and substituted a lower judgment. Padash's cross-appeal on physical causation was dismissed, and the later costs decision left the reduced damages judgment intact.
Understanding the figures
The trial award of AUD 278,817.75 was replaced on appeal by AUD 41,965.65, effective from 30 July 2020. Dungan v Padash (No 2) [2021] NSWCA 257 refused a further reduction of that judgment based on prior payments. Separately, after setting off the parties' costs entitlements, it ordered Padash to pay Dungan AUD 8,414.48. These historical figures distinguish damages from costs and do not establish net cash received.
What this case shows
Genuine continuing pain does not by itself establish that the accident remains the cause of that pain or associated psychiatric symptoms. Read together, the trial and appeal show how separating pre-existing disease from accident effects can change the recoverable period of loss. They also show why an account of continuing psychiatric harm must be checked against the actual appellate result.
Why another case may differ
This concerned the Motor Accidents Compensation Act 1999 regime for a 2016 accident and the causation provisions of the Civil Liability Act 2002. The appeal did not establish a universal rule that psychiatric illness must end when physical symptoms resolve; the majority and McCallum JA's dissent differed over the evidence and burden in this case. Damages and the separate set-off of costs must be distinguished, and the judgment sum does not establish an additional cash payment.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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