Car accident … Plaintiff’s fraudulent case … Farrago of lies … Deceit … Tentative orders for indemnity costs and to refer the plaintiff for criminal investigation … Committing offences while allegedly incapacitated … Priors … Janek Drevikovsky reports
Welcome to the world of Dianne Nicholas, creative litigant, who last week had her personal injury claim thrown out of the District Court by Robert Weber DCJ.
It began in 2016, when Ms Nicholas was driving through the sedate Sydney suburb of St Mary’s. All of a sudden the defendant, Leanne Jimenez, failed to stop at a give way sign, driving directly into Ms Nicholas’ path.
Through no fault of her own, Ms Nicholas t-boned the defendant’s car.
Admitted to Nepean Hospital, Ms Nicholas was described as lucid and coherent. On the first night of her stay, she insisted on walking to the toilet rather than using a bedpan.
She couldn’t walk – or so she claimed.
The good doctors at Nepean ran test after test, but no physical ailment could be located. They suspected it was psychiatric, but did not consider the possibility the patient was malingering.
Ms Nicholas spent three-and-a-half months in hospital. Then she decided to sue.
For her injuries, Ms Nicholas sought $695,000 from Ms Jimenez’ insurer.
The sole issue was whether Nicholas had suffered the pleaded loss. Weber DCJ agreed the question turned on the credit of the parties’ evidence.
Nicholas fronted court in a wheelchair, her hand clenched shut and her foot turned inwards. She could not lift her arm above her shoulder, she said, and was unable to tolerate a shoe on her left foot.
But the defendant’s evidence painted a different picture. In late 2017 and again in 2019, the insurer hired private detectives to film Ms Nicholas as she went about her business.
In the footage, the plaintiff could be seen walking around a shopping centre, with shoes on both feet, no walker or wheelchair within cooee. Even worse, there were clips of her driving a car and unloading groceries from the back, with no apparent difficulty.
Then there was the testimony of Theresa Jones, Nicholas’ sister-in-law, who is not on good terms with the plaintiff.
At more than 20 family events since the accident, Ms Jones never once saw the plaintiff in a wheelchair.
Once, she gave a eulogy at a funeral. She lifted a baby above her head. She even danced at a family wedding.
Next came Nicholas’ criminal record, stacked full with dishonesty offences.
There was no sign she had done the deed from a wheelchair. Nor, as the judge eloquently put it, was there:
“… any suggestion that her left hand was in any way lacking in dexterity, such as to detract from her capacity to commit this species of larceny.”
It emerged Ms Nicholas had tried this sort of caper before.
After a similar car accident in 2014, she sued the other driver for basically the same injuries as those in the present case. She settled after the defendant found video proof that the injuries were feigned.
She even reduced her pleaded losses to $26,457.75, for medical bills incurred before that date.
For this manoeuvre, Weber DCJ had only one explanation:
“She despaired of the possibility of a finding that she suffered any disability after [November 2017], and was attempting to retrieve something from the wreckage of her case, to use the vernacular.”
Her case was shot. In written submissions, Elizabeth Welsh, for the plaintiff, admitted her client had “destroyed her own credit”.
The judge agreed. Nor was there any other evidence to support Ms Nicholas’ case.
The medical reports from Nepean Hospital did not prove genuine illness, because the doctors failed to consider their patient might have been faking it.
And Ms Nicholas’ granddaughter, who testified on her behalf, was not credible. She had a vested interest in grandma’s finances and there were inconsistencies in her evidence.
Accordingly, HH threw out the case, calling it a “farrago of lies”.
“I find that these lies were part of an organised plan designed to deceitfully obtain monies to which she was not entitled.
This involved the feigning of her injuries over a considerable period of time.”
Nicholas was given seven days to oppose either order.