Ahmed Elskaf v Khaled Ghalayini

[2019] NSWDC 86

District Court

New South Wales

Medium Neutral Citation:

Ahmed Elskaf v Khaled Ghalayini [2019] NSWDC 86

Hearing dates:

20 & 21 November 2018 &3,4 & 12 December 2018

Date of orders:

29 March 2019

Decision date:

29 March 2019

Jurisdiction:

Civil

Before:

Strathdee DCJ

Decision:

(1) Verdict and judgment for the defendant against the plaintiff.

 

(2) Plaintiff to pay defendant’s costs as agreed or assessed.

 (3) Liberty to apply to my associate within 7 days if alternate costs orders are sought.

Catchwords:

TORTS – negligence – jet ski accident – claim by driver for physical and psychological injuries
DAMAGES – non-economic loss - past and future out-of-pocket expenses – future loss of earning capacity – past and future domestic care and assistance – threshold for domestic care and assistance

Category:

Principal judgment

Parties:

Ahmed Elskaf (Plaintiff)
Khaled Ghalayini (Defendant)

Representation:

Counsel:
Mr M Thompson
Mr S Maybury
Solicitors:
Gerard Malouf & Partners
DLA Piper

File Number(s):

2017/325353

Judgment

1. By Statement of Claim filed in this Court on 27 October 2017 Ahmed Elskaf (“the plaintiff”) seeks damages with regard to injuries that he sustained in a Jet Ski accident that occurred on 3 December 2016 on the Georges River, Revesby in the State of New South Wales.

2. It is alleged that on 3 December 2016 the plaintiff was riding his blue/black hulled Jet Ski, registration ATTN, in an anti-clockwise loop on a particular stretch of the Georges River, Revesby in a standard circuit that all riders seemed to be following. The route was detailed in the photographs that were provided and the plaintiff marked certain positions on the photographs to indicate where the collision occurred.

3. It seems that there is an unspoken agreement in this part of the river that all Jet Skis go anti-clockwise and keep to the right-hand side while travelling along either side of the river.

4. It is alleged that at a point in time when the plaintiff’s vehicle was stationary the defendant’s vehicle came into collision with the plaintiff’s Jet Ski and the plaintiff was thrown from his craft.

5. The plaintiff was assisted out of the water back onto his craft and was taken to shore whereupon, an ambulance was called and he was taken to hospital.

LIABILITY

6. The plaintiff gave evidence that he was riding the loop at the time of the accident (T p.17 l.05), and had been doing so for about 10 minutes (T p.17 l.41).

7. The plaintiff stated there was only one path or circuit to be followed and everybody was riding in that direction (T p.17 l.48).

8. The plaintiff stated that at a point in time he stopped his vehicle to have a drink of water and he noticed the defendant’s Jet Ski approaching him at high speed (T p.18 l.08).

9. The plaintiff’s evidence was that he stopped the Jet Ski to the point that it was stationary, stood up, opened the front hatch of the Jet Ski, removed his water bottle, and was drinking from it when the defendant’s vehicle came into collision with his, and he was thrown from the Jet Ski.

10. The plaintiff did not give evidence of having seen the defendant’s vehicle ‘zigzagging’ prior to the collision, but noted that it was travelling at speed from behind his Jet Ski.

11. The plaintiff’s cousin, Ayman Skaf (“Ayman”), gave evidence before me and stated that he had been watching the plaintiff for about 10 seconds before he looked away. He did not in fact see the collision but heard the loud bang. He indicated that he observed the defendant’s Jet Ski zigzagging down the river prior to the incident.

12. It was put to Ayman in cross-examination that he had not previously mentioned the defendant’s Jet Ski was zigzagging, and that it never happened. It was also put to him that the zigzagging was not included in the statement he made to the police. His evidence before me was that he had noticed it zigzagging, and could not explain why he had not included that in his police statement, nor the statement to the private investigator made on 11 September 2017 (Exhibit 2).

13. Another cousin of the plaintiff, Wael Elskaf (“Wael”), also gave evidence before me that he was also watching the plaintiff on his Jet Ski for a few minutes on and off before the collision. His evidence was that he also saw the defendant’s Jet Ski zigzagging before the collision, and that he did notice that the plaintiff was slowing down prior to the collision. He noted that the defendant’s vehicle was travelling faster than the plaintiff’s vehicle (T p97-98) and at the time of the collision he had ushered some children out of the way of an incoming Jet Ski to the ramp, when he heard a loud bang. He also did not in fact observe the collision.

14. The plaintiff’s partner, Alana Renwick (“Alana”) gave evidence before me to the effect that she was watching her husband, the plaintiff, ride his Jet Ski in a normal manner. She said that she had observed the defendant’s vessel travelling quite quickly in the water and certainly faster than that of the plaintiff’s (T p.50-51).

15. Alana corroborated the plaintiff’s description of the events, however, she also did not see the actual collision as their son, Isaiah, had spilt a drink and she was distracted cleaning that up for 5-10 seconds during which she heard the loud bang and looked up to see the plaintiff in the water.

16. The defendant gave evidence before me and his version of events is very different to those witnesses that gave evidence for the plaintiff.

17. The thrust of the defendant’s evidence was that the plaintiff’s vessel was travelling across the circuit, that is from one river bank to the other, at the time of the accident. This is contrary to the allegation made by the plaintiff in that he was stopped travelling parallel to the river bank when the accident occurred.

18. The defendant’s evidence was that the plaintiff came in roughly a perpendicular angle from his left hand side and collided with him. He was surprised as he had not seen the plaintiff’s vehicle, and he instinctively released the throttle in an attempt to avoid the collision, but failed.

19. The plaintiff gave a statement to the police on 15 December 2016 which is included in Exhibit A.

20. The plaintiff stated in answer to Question 5 which was ‘Can you tell me what happened?’ the following answer:

‘I was travelling in front of several Jet Skis. I started to slow down. I looked left, I looked right, I looked behind. There were no Jet Skis directly or immediately behind me. The closest Jet Ski was 100 metres behind me. And of course there were Jet Skis around the ramp in front. After realising it was safe to do so, I’ve come to a complete stop: as in idling, no throttle. Yes, the Jet Ski creeps forward while in idle. The Jet Ski was still turned on. I stood up. I reached to the front bonnet compartment. I grabbed my bottle of Mount Franklin water. As I opened my bottle my body twisted to the right and I was looking directly behind me. I noticed a Jet Ski travelling in my line, straight to me, at very high speeds. He was sort of 30-40 metres away. I thought is this guy going to move? My water bottle was opened and I waited to take a drink so my eyes would not leave that Jet Ski. He just kept coming closer and closer. By the time he saw me his hand was completely off the throttle and he was slowing down. Thank God for that because if he wasn’t slowing down my injuries would have been a lot worse. He hit me in an angle side swipe position. He lost control. I fell right next to my ski.’

21. At Question 10 he was asked:

‘What are (sic) the conditions like prior to the collision?’

His answer was as follows:

‘The Lebanese think they are Valentino Rossi, they are crazy.’

22. The plaintiff’s wife, Alana, also made a statement to the police on the same day. Her evidence at paragraph 3 is as follows:

‘Just prior to the collision I am sure Ahmed’s ski had stopped. I could see the other ski with two persons on travelling behind. They would have been about 20 metres from Ahmed. They were going fast. It would have been about 100 metres from the river back to where the accident happened. I saw the other two persons involved in the accident talk to the paramedics. They seemed ok.’

23. Ayman Skaf (“Ayman”) made a statement to the police on 20 December 2016 in which he describes what he had observed. Critically, there is no mention of the defendant’s Jet Ski zigzagging.

24. Ayman made a further statement to a private investigator on 11 September 2017 where there is also no mention of any zigzagging. In paragraph 17 of that statement he says:

‘In my opinion, the accident was caused by the Jet Ski travelling behind Ahmed colliding with his Jet Ski. Ahmed’s Jet Ski was slowing down and was being overtaken by the rider of the other Jet Ski who was riding recklessly.’

25. Ayman states at paragraph 19 of the statement of 11 September 2017 as follows:

‘Although I did not witness the accident, I saw the events leading up to the accident. Ahmed was riding his Jet Ski on the starboard side of the Georges River heading downstream. He was travelling slower than normal and was possibly slowing down. There was a Jet Ski travelling behind him on the starboard side of the Georges River also heading downstream. The next I saw was that the Jet Ski travelling behind Ahmed had collided with him.’

26. Again, there is no mention of zigzagging in either of those statements.

27. The statements of the two cousins, Wael and Ayman, are quite similar, but I accept that they both tried to give their evidence as honestly as possible. However, the evidence that they gave, being so similar to each other’s evidence, and in contrast to the statements they made, that I have trouble accepting all of their evidence.

28. Ayman further gave evidence (T p.119 l.1-12) that the last time he saw the plaintiff before the collision, he was slowing down, but he was sitting down. This of course is contrary to the version given by the plaintiff.

29. The cousins were cross-examined as to whether or not they had discussed what happened in the collision at any point subsequent to the collision. They were standing next to each other at the time the collision occurred.

30. Ayman denies (T p.125) that he and his brother have had any conversations about the circumstances of the accident since its occurrence despite the fact that they both live in the same house since before the accident up until the trial. I find that somewhat hard to believe.

31. Wael also gave evidence before me at the trial. He had been watching the plaintiff ride the Jet Ski for some minutes before the collision. He said that at a point it appeared to him that the plaintiff’s vessel slowed down (T p.304 l.1). He indicated that the plaintiff was travelling at about 40 kilometres per hour and decelerated from that speed.

32. He said that for the 15 seconds he observed the defendant, the defendant was zigging and zagging, however, he was unable to say how often (T p306).

33. He was asked, (T p.306 l.9):

‘Q   Were they exaggerated zigs and zags that were going for quite long distances or were they very short sharp zigs and zags?

A   Probably both, I would say both. It was mainly, it looked like whatever he got the opportunity to take a small wave or collect some of the water that was coming off the back of Ahmed’s Jet Ski, to I guess have a bit of fun, he’d take that opportunity.

Q   So you saw him jumping off he waves and doing things, did you?

A   Yes.’

34. The statement (Exhibit 7) he gave to the investigators makes no reference to any zig-zag motion. He also stated (T p.314) that he had not discussed the circumstances of the collision with his brother Ayman, the plaintiff or any other members of his family.

35. I find the evidence given by Ayman and Wael (T p.125-127) somewhat difficult to believe. I find it hard to imagine that two brothers, who live in the same home, who were witness to a major collision of two Jet Skis, in which their cousin was seriously injured, would not have at least discussed what they had observed prior to making any statements to investigators or police, and certainly prior to giving evidence before the court. This causes me to view their credibility quite dimly.

36. The defendant also made a statement to the police on 17 December 2016 (part of Exhibit A). It details that he was travelling in the counter clockwise circuit as were the other Jet Skis on the river on that day.

37. Whilst the defendant was travelling at about 60 kilometres per hour on his Jet Ski he saw the plaintiff in the middle of the channel facing towards the trees and the bushland area. He stated he was about 50 metres away from him. I note that the Jet Skis are also called Personal Water Craft (“PWC”).

38. The defendant stated at paragraph 7 of his statement:

‘I immediately took my hand off the accelerations and the PWC slowed down to a (sic) idle. I was approaching the other guy on the blue PWC. I remember thinking which way he was going to move either it be left or right. He then started getting closer and closer and then we collided. The front left side of my PWC collided with the front right side of his PWC. The force of the impact caused everyone to fall out of our PWCs into the water. We were all in the water at this point. As soon as I got my head out of the water I said ‘Mate didn’t you see me?’ He said ‘Please, please, my back’.’

39. An investigation into the circumstances of the collision was conducted by the police and at page 8 of the Investigation Report contains the following:

‘There is no dispute that Ghalayini is travelling on the correct side of the channel (starboard) nor is it disputed that Elskaf is in front of Ghalayini, however, what cannot be independently confirmed is the position of Elskaf. If Elskaf’s version is to be considered accurate he is in the position of stand on vessel. But if Ghalayini’s version is considered accurate then Elskaf is the give way vessel and should be giving away to the right. Vessel positions and speeds aside, police also believe that both riders had time to take evasive action to avoid a collision. Both had reported that they had time period they were thinking about the actions of the other rider which in police opinion would indicate that there would have been some time for one or both riders to take\attempt to take some form of evasive action. Further to that both riders claim they were in idle when the collision occurred, however, as a result of the collision all parties were thrown into the water, which would suggest one or both were travelling at speed. Also the injuries sustained by Elskaf are significant (broken back, hip and ribs) and police are doubtful that such a collision at low speed\idle would cause such injuries. Police obtained a statistical download from Yamaha of Elskaf’s ski that showed 6 seconds prior to the kill switch being removed Elskaf was travelling close to full open throttle. Unfortunately, Ghalayini’s ski was an older model and no download was able to be completed. Police obtained multiple witness statement, however, only Ghalayini’s sister is the only statement that involves her version of the actual collision. All the other witnesses (Elskaf’s wife and cousin) saw either moments prior to or involved immediately after the incident. Police do not have any independent witnesses to the collision. Police consulted with Maritime regarding the CCTV cameras located at Revesby. These cameras at the time of the collision were not facing where the incident took place.

The damage to the skis does not provide police with any additional information regarding what occurred. The damage sustained to the skis can be possible the result in both versions of events. Both Elskaf and Ghalayini stated that collision was the right side of Elskaf’s ski with the left side of Ghalayini’s ski. From all the details outlined above investigating police do not believe they enough evidence to take legal action against one rider over the other.’

40. The defendant’s sister, Mary Ghalayini (“Mary”) did not give evidence, however a statement she made to the police on 17 December 2016 is part of Exhibit A. Within that statement she stated the following:

‘I had been on the Jet Ski for approximately 5 minutes. My brother was travelling back towards the wharf at the boat ramp. He was going to drop me off. I was looking forward past my brother’s left shoulder. I could see a Jet Ski ahead of us. I think it was red and yellow. I noticed my brother slowed down. I cannot estimate the distance the red and yellow Jet Ski was from us. I cannot estimate my brother’s speed. I could tell that we were gradually slowing as we were approaching the red and yellow Jet Ski. I think my brother maintained a straight line.

From when I first saw the red and yellow Jet Ski to the time we collided with it, I estimate 1-2 minutes had passed. It was visible from my left side. The Jet Ski was moving really slow. There was one male person on board. I could see the male person looking towards me. Both of his hands were on the handle bars and he was sitting on the seat.

As we were approaching the red and yellow Jet Ski there was no conversation between myself and Khaled. Khaled appeared to be looking directly ahead when I realised we were about to collide.’

41. Two experts were qualified with regard to the mechanism of the collision. Their views were widely disparate, however the common ground was that there was a significant engagement between the two vessels.

42. The evidence of Mr Bailey contained within Exhibit 4 (T p386-388) discloses his belief that the Jet Skis collided at a roughly perpendicular angle rather than a far slighter angle. His reasoning for that is that if the collision had occurred at a slighter angle, it would only have been a glancing interaction particularly having regard to the rounded or curved shape of those parts of the vessels. However, as the damage to the vehicles were severe, he comes to the conclusion that they collided at a roughly perpendicular angle.

43. Both experts had the opportunity of viewing the photographs of the damage to the Jet Skis.

44. Having given evidence in a conclave with Mr Bailey, the plaintiff’s expert, Mr Johnson also accepted that the impact is likely to be at a range of 45-50 degrees because of the nature of the damage to the Jet Skis (T p.397).

45. Mr Bailey opined that the injuries the plaintiff sustained are more consistent with him being thrown into the side of the defendant’s Jet Ski at velocity because his vessel had been still under way, as opposed to the other vessel glancing past which would cause degloving type injuries to the plaintiff, which did not occur here.

46. Mr Johnson agrees that it is a blunt trauma rather than a degloving or scraping injury.

47. When giving evidence in the conclave, Mr Johnson conceded that the angle of the impact was different to that which he had put in his report, and I note that is far more consistent with the defendant’s version of events.

48. To my mind it is hard to imagine how such an angled collision would occur with the defendant coming from behind the plaintiff unless the zigzag version was accepted, however I have difficulty accepting the zigzag version as it was not included in any of the contemporaneous statements made to investigators or police, nor does Mr Johnson’s version of events fit with the plaintiff’s evidence that his Jet Ski was stationary at the time of the impact.

49. The conclave report dated 14 November 2018 which is Exhibit 10 noted that after the incident, the Jet Skis were examined and a reading from the plaintiff’s Jet Ski was taken by accessing a Yamaha Diagnostic System which was part of his Jet Ski’s engine. Unfortunately, the defendant’s Jet Ski, being older, did not have such facility. The download of the information from the plaintiff’s Jet Ski was performed by Mr Muller (“Muller”).

50. The experts in the conclave were asked about the extracts from the data log of the plaintiff’s Jet Ski.

51. Muller gave evidence (T p.349-356). He is a qualified marine technician and has been performing the role of Technical Coordinator for Yamaha Motor Australia having been so qualified for more than 18 years. He gave evidence about the kill switch on the plaintiff’s Jet Ski which is attached to a lanyard, which is either kept around the driver’s wrist or personal floatation device.

41. Muller’s report was part of the Defendant’s Tender Bundle (Exhibit 4).

42. Muller analysed the statistical download from the plaintiff’s vehicle and extrapolated those results into a graph. The information he retrieved indicated that the engine speed in the 6 seconds prior to the engine shut off switch being activated was 7,650 revs per minute. He states at paragraph 22.3 of his report:

‘Based on my knowledge and experience, this is very close to the throttle being fully open, which is also consistent with the high RPM recording at that time.’

54. It further indicated that the Jet Ski had been in use for a continuous period of at least 78 seconds before it stopped.

55. Muller was tested in cross-examination (T p.353) as to whether the craft was travelling a full throttle or close thereto within 6 seconds of the engine shutting down and he agreed that that was the case.

56. Muller was then asked in re-examination the following (Line 12):

‘Q   Just two things, Mr Muller.  While we're on that topic, do you know what the top speed in kilometres per hour is of the WaveRunner model that you were able to download the diagnostic information from?

A   It would - generally, it would be somewhere in the vicinity of around about 100 to 110 kilometres an hour.

Q   And, just dealing with the annexures, you were shown the table document at page 481, is the document at page 476 the graphical representation of the table at 481?

A   Yes, it is.

Q   So, is that the same data but in a graph form--

A   In a graph form, correct.

Q   --rather than in a table, numerical form?

A   Correct.

Q   Just so that I understand the position, if no-one else, in relation to one of the questions her Honour just asked you, what this diagram and table show is that less than six seconds before the engine of this jet ski was deactivated for the last time, it was doing 7650 revolutions per minute?

A   Correct.

Q   Which is close to its full throttle?

A   Correct.

Q   And the reason you say it was less than six seconds is because if another six seconds had elapsed it would have captured a snapshot of that six seconds?

A   Correct.

Q   And so, theoretically, is it right to say that after that last measurement there's a period of between one and five seconds that may have elapsed?

A   Correct.’

57. It was submitted by the plaintiff’s counsel that all of the eye witnesses called on the question of liability and the statement made by the defendant’s sister, Mary, are consistent in that they put the defendant travelling behind the plaintiff and the plaintiff travelling slowly. They submit the plaintiff’s version of events was corroborated by his partner Alana, Wael, and Ayman.

58. It is submitted by plaintiff’s counsel that they were all impressive witnesses, and I would therefore make a finding of fact that the plaintiff was riding slowly. It was further submitted that the reason riders operate their Jet Skis in the manner that they did on the river is because it is fun to ride the Jet Ski up and down.

59. Plaintiff’s counsel submitted that if the plaintiff was riding across the river he would effectively be shortening his ride, and that there is no logical reason that the plaintiff would operate his Jet Ski in that manner.

60. It is submitted by plaintiff’s counsel that the defendant’s version of events is one that does not fit with the balance of the evidence, and that the defendant did not appear to take the proceedings seriously when giving his evidence. It is submitted that on that basis I would find that he was not a credible witness.

61. However during submissions, plaintiff’s counsel conceded that the plaintiff had credit problems that he needed to confront, however, as there were corroborative witnesses and medical evidence to support his evidence, I would accept what he has said in evidence and to the medical practitioners qualified in the proceedings.

62. I have serious concerns about the credibility of the plaintiff.

63. The evidence that the plaintiff gave before me suggested to me that he was either being evasive or was making it up as he went along. There had been no mention by him in his statement to police or in evidence-in-chief about the Jet Ski behind him zigzagging, nor had there been any evidence in the plaintiff’s evidence-in-chief or statement to the police that the lanyard had caused the kill switch to operate. It did appear to me that this was evidence that he was making up in an attempt to counter balance the various expert evidence as to the mechanism of the collision.

64. When it came out in cross-examination that the plaintiff had been receiving Centrelink benefits to which he may not have been entitled, the plaintiff gave evidence that he had been in contact with Centrelink, and had told them everything, and that he would be paying them back every cent which he had received to which he was not entitled. This was at a point in time where Centrelink had not produced records pursuant to a subpoena.

65. The hearing was adjourned for some weeks and when it recommenced the Centrelink records were available.

66. The plaintiff was again cross-examined about the Centrelink records and agreed that he had not been fully honest with Centrelink.

67. It appeared to me that when he said in evidence that he had disclosed everything to Centrelink, he said that because he didn’t think he would be caught out. However, when the defendant produced records from Centrelink the plaintiff fessed up to dishonestly dealing with Centrelink, which I infer was a deliberate attempt to tell falsehoods to a government authority for his own financial gain.

68. There was further cross-examination about whether or not the plaintiff had had any medical treatment. The plaintiff’s response as to why he had not had any treatment was because he could not afford it but when it became obvious that he had spent a significant amount of money buying his wife a pram, he gave evidence that that was more important than having any medical treatment.

69. The plaintiff gave further evidence about his dealings with the Australian Tax Office (“ATO”). He stated that he had under declared his income prior to the accident via his tax agent (T p.200). He tried to blame this on his tax agent (T p.208-209). He signed off on his tax returns even though he knew they were incorrect (T p.32-33).

70. I also have grave reservations about his changing story in relation to the use of the kill switch on the Jet Ski. In his statement to the police, the plaintiff made no reference at all to the kill switch having been activated to deactivate the Jet Ski at the time of the collision. In fact, the plaintiff told the police that the Jet Ski was idling with no throttle.

71. Counsel for the defendant submitted that the kill switch evidence given by the plaintiff was an invention to try and explain the Yamaha diagnostics material detailed above which is clearly inconsistent with the plaintiff’s version of events - that being he slowed down, had time to stand up, open the front hatch of his Jet Ski, took out his water bottle, and then watched the defendant’s vessel coming towards him. I do not accept that evidence.

72. I also find it somewhat curious that the two cousins of the plaintiff, Ayman and Wael, who gave evidence before me, both gave evidence that they have not discussed the circumstances of the collision between themselves or with any other members of the family. This is in circumstances where their cousin has allegedly sustained very serious injuries in an accident which occurred whilst they were in the direct vicinity.

73. The plaintiff also admitted in evidence that he had been riding a Jet Ski without a licence for some 9 years prior to him obtaining a licence some 6-9 months before the accident. He admitted that it was a dangerous thing to do and that he did it knowing that it was dangerous.

74. In contrast was the evidence of the defendant. I found the defendant a very credible witness who gave his evidence in a very forthright manner and when he could not remember he stated so, instead of making it up, which is the view I have formed of some of the other lay witnesses.

75. However, although I find the defendant to be a witness of credit, I must be careful about that finding. Clearly the objective evidence is far more important to my consideration than any witness’ subjective interpretation of events that occurred some time ago.

76. What is important however is that the defendant’s version is wholly consistent with the objective evidence.

77. It is, in fact, the only evidence that is consistent with the objective evidence and largely consistent with the expert evidence.

78. The evidence the defendant gave was clear and importantly it is consistent with the diagnostic download information and consistent with the angle and nature of the impact.

79. The important point is for me to examine is how did this accident happen such that it is consistent with the objective information, and the damage sustained to the vehicles. The only way to my mind that that could have happened is in accordance with the version given by the defendant.

80. I accept the submission that the plaintiff rode his Jet Ski in an unusual, dangerous and unexpected manner.

81. I make the following findings of fact:

1. The plaintiff’s Jet Ski was not stationary at the time of collision.

2. The plaintiff was not standing on his vessel as two witnesses believe that he was sitting down at the time immediately prior to the collision.

3. The engine of the plaintiff’s Jet Ski was at full throttle in the 6 seconds prior to the collision occurred as I accept the evidence of Mr Muller.

4. The vessels came into a collision at an angle of anywhere between 45-70%, as I accept the concession made by Mr Johnson in the conclave and it therefore is supportive of the conclusions Mr Bailey made about the angle in which the vehicles were travelling when they collided.

5. I find that the plaintiff was coming across the river from the northern to the southern bank between the two shorelines. This is supported by the evidence of the two experts. To the extent that there is any difference in their opinions, I prefer the evidence of Mr Bailey over the evidence of Mr Johnson as his analysis seems far more consistent with the evidence of the other witnesses. I accept the evidence of Mr Bailey that the damage to the plaintiff’s Jet Ski was suggestive of a collision occurring with the vessel travelling perpendicular to his vessel, and not a glancing side by side collision.

6. I find that the plaintiff’s vessel was still operating at the time of collision and it was only when the plaintiff fell off the Jet Ski that the lanyard was pulled and the engine was killed. This is supported by the evidence of Mr Muller and Mr Bailey. On the basis of Mr Bailey’s evidence the plaintiff’s Jet Ski was travelling at 7,650 revs per minute indicating full throttle in the vicinity of 80-100 kilometres per hour.

7. I find the one and only piece of reliable, irrefutable objective evidence is the diagnostic download from the Yamaha technician. I find that the plaintiff fabricated the evidence in relation to the kill switch to try and counter the diagnostic evidence.

8. I find the plaintiff was a completely unreliable witness, he admitted dishonesty and almost exclusively, was unable to answer a straight question.

9. I find that the evidence of the plaintiff’s witnesses are not sufficient to persuade me on the balance of probabilities that the accident happened in the way in which the plaintiff describes.

10. I find that the plaintiff has deliberately avoided his taxation obligations, and received benefits from Centrelink that he was not entitled to receive.

82. On that basis the plaintiff has failed to satisfy me that the defendant was driving his vehicle negligently such as to cause the accident, and therefore the plaintiff has not succeeded in discharging his onus on the question of liability.

83. There will be a verdict for the defendant against the plaintiff.

84. I note that I am required to assess damages in the event that I am in error with regards to the question of primary liability.

MEDICAL EVIDENCE

85. After the accident, the plaintiff was taken by ambulance to Liverpool Hospital where has was admitted. He was diagnosed as suffering transverse fractures of the L3 and L4 segments in the lumbar spine (Exhibit 1 p.133). He was reported to have suffered an injury to the right hip, however no fractures to the hip were noted. He remained in hospital for 4 days. No surgical intervention was conducted. He was treated with analgesia, including Morphine and was discharged home in a wheelchair.

86. The plaintiff was referred to Dr G Rosenberg by his General Practitioner, Dr Rajab, 4 days after the accident. Dr Rosenberg ordered an MRI which revealed oedema within the hip joint. The plaintiff was continuing with physiotherapy and he was not recommended surgery.

87. Dr Machart examined the plaintiff on 28 November 2017(Exhibit A p.442) at the request of the plaintiff’s solicitor. On examination, Dr Machart noted the following:

‘he could not straighten the spine fully, preferred to stoop with his hands hanging forwards, reporting that he would otherwise fall. Minimal movement was demonstrable. Straight leg raising was unimpaired’

88. In that report Dr Machart provided the following diagnoses:

‘Diagnosis

*   Mr Elskaf sustained a substantial injury to the lumbar spine, objectively defined as fracture of transverse processes. This is commonly associated with severe soft tissue trauma.

*   There is evidence of a stress reaction in the right hip, possibly minor fracture. This could have substantial consequences. Such fractures could be associated with avascular necrosis.

*   Mr Elskaf reported ongoing severe pain, which requires objective definition. There are psychological issues, which complicate the physical presentation.

Reasons for severe pain, usage of a crutch, and lack of clinical progress, is not objectively defined. I recommend redo of investigations to define reasons why the pain should persevere now, i.e. whether there were complications such as avascular necrosis in the right hip. The presence of the severity of the pain requires objective definition. I recommend a bone scan, which is probably the simplest way of defining vascularity in the hip, and check on potential damage elsewhere in the skeleton.

*   Neurological features in the right leg are undefined. There is no evidence of neurological damage in the lumbar spine, discs normal and no neural impact.’

89. In response to this, Dr Machart ordered more tests be performed as the reasons for the severe pain, usage of a crutch, and lack of clinical progress had not objectively been defined. He noted that when there is presence of the kind of severity of pain that plaintiff was complaining of, objective definition was required.

90. Doctor Machart further considered that the plaintiff was not fit for his pre-injury job, nor any employment as at the date of that examination.

91. In a supplementary report dated 8 June 2018 (Exhibit A p.459), Dr Machart confirmed the MRI of the lumbar spine performed 13 December 2016, demonstrated fractures of transverse processes L3 and L4, and the MRI of the right hip demonstrated oedema within the hip joint. Doctor commented that the additional pathology suggested by the bone scan is sacroiliitis. He states as follows;

‘Given the velocity of the injury, this pathology is compatible with injury sustained on 3 December 2016 causing sacroiliitis. The incident caused fractures of the L3 and L4 in the lumbar spine, injury to the right hip, compression type injury to bony structures without structural derangement, and injury to the sacroiliac joints, more specifically on the right where there is pain. Injury to the sacroiliac joint goes a long way to explain the severity of the symptoms from which he is suffering.’

92. Counsel for the defendant submits that the request by Dr Machart for a bone scan, was to further investigate the plaintiff’s subjective feelings of pain, as the initial radiology and pathology did not provide a definitive cause. Dr Machart did not mention sacroiliitis in his first report, and he admitted that at the time of his first report that the investigation, pathology and radiology did not explain the symptoms of pain (T p.426 l.18).

93. Dr Nair examined the plaintiff in August 2018 at the request of the defendant’s solicitor and examined MRI scans of his right hip and lumbar spine, and provided an initial report on 29 August 2018 on examination (Exhibit 4 p.749) and another on 28 September 2018 (Exhibit 4 p.784). Dr Nair notes follows:

‘The current symptoms are pain in the lumbosacral junction radiating into the gluteal region. He states that the pain is a dull ache at rest, typically a 2 out of 10 in magnitude occasionally increasing to about 7 out of 10. With activity the pain ranges between 6 out of 10 in magnitude to 10 out of 10. The pain radiates from his lower back into the right gluteal region and the right lower extremity. He states that it is continually present.’

94. He further reports as follows:

‘The continued subjective pain levels are rather puzzling. The bone scan suggests mild hyeraemia. It is my experience that sacroiliitis does not result in Mr Elskaf’s degree of discomfort. As such, I am unsure of his prognosis………….Based on experience, I am at a loss to explain the high degree of subjective pain experienced by Mr Elskaf”……….Sacroiliitis is typically a degenerative condition and very rarely seen in trauma. If it was present, it should have resolved.’

95. In Dr Nair’s supplementary report of 28 September 2018, he refined his opinion as follows:

‘1. Based on objective findings including: absence of clinically evident muscle wasting, observed functional range of motion and scrutiny of medical documents, including medical imaging I was unable to explain Mr Elskaf’s symptoms.

2. His transverse process fractures and possible femoral neck fracture must have healed as there were not evident of the Bone Scan dated 17 May 2018, which is an extremely sensitive modality to assess the presence of fractures.

3. The diagnosis of sacroiliitis is by definition an inflammatory or degenerative arthrides and does not relate to trauma.’

96. Drs Machart and Nair gave evidence in a conclave. There was little common ground. The main area of dispute was the diagnosis of sacroiliitis. Dr Machart’s view was that the body of medical evidence accepts that sacroiliitis can be as a result of an injury. It was put by counsel for the plaintiff that I ought accept this position, particularly, as he says, it goes a long way to explain the plaintiff’s yet unexplained symptoms.

97. However, Dr Machart does not clinically correlate the potential pathology with the plaintiff’s symptoms, nor does he explain why the plaintiff has symptoms in one hip only, in circumstances where there is demonstrated uptake in the bone scan to both sacroiliac joints. He does not correlate the scan findings with the severity of the plaintiff’s symptoms, nor why the damage did not appear on the earlier investigations including the very sensitive MRI of the right hip.

98. Dr Nair’s opinion is contrary to that of Dr Machart as he does not agree that the bone scan indicates sacroiliitis. The basis for his view is that the bone scan simply shows hyperaemia, which in his view is a common finding in younger people in their 30s and 40s (such as the plaintiff). His view is supported by the fact that there is no clinical or radiological evidence of sacroiliitis.

99. Dr Nair was unable to find any objective evidence of a physical condition that would prevent the plaintiff from working.

100. Essentially, apart from Dr Machart’s diagnosis of sacroiliitis on the basis of a bone scan, there is no other independent evidence in support of the plaintiff’s complaints. The bone scan relied upon by Dr Machart to diagnose the sacroiliitis (Exhibit A p.437) also draws the following conclusions:

‘Conclusion:

No definite scan evidence of recent L3 and L4 right transverse process fractures or stress fractures.

No scan evidence of recent right femoral fracture.

Mildly increased tracer uptake in the sacroiliac joints together with mildly increased vascularity raising the possibility of sacroiliitis. Correlation with clinical and other biochemical parameters is recommended.

No other significantly active bony abnormality is identified in the area studied.’

101. Whilst there was a diagnosis made immediately after the accident of a L3 and L4 transverse process, the bone scan of 17 May 2018 does not support that diagnosis – suggesting that it, in my view, the fractures have healed.

102. Having had the chance to hear the plaintiff’s evidence, and having regard to the comments I have made about the plaintiff’s credit, in the absence of any radiological evidence to support the claims made by the plaintiff, I am left with trying to determine his level of pain and disability on purely subjective grounds, as are the medical experts, with the exception of the arguments about the sacroiliitis.

103. I prefer the opinion of Dr Nair over that of Dr Machart, and I do not accept Dr Machart’s diagnosis of sacroiliitis as it his interpretation of the bone scan, and its relationship to the clinical symptoms complained of by the plaintiff, do not convince me on the balance of probabilities that that is in fact the correct diagnosis. I prefer the opinion of Dr Nair, as I find his reasoning clear, cogent and persuasive.

104. I find that the plaintiff has substantially embellished and/or fabricated the symptoms he is experiencing and the disabilities he is left with. I find that his clear and repeated preparedness to be dishonest for financial gain has caused him to grossly exaggerate his symptoms.

105. I find that there were transverse process fractures of the L3 and L4 occasioned as a consequence of the accident. I accept that this would have caused the plaintiff some significant pain and disability immediately after the accident, and he would have taken some weeks or months to recover from those fractures.

106. However, I find that at least by 17 May 2018, the transverse process fractures had healed, as would have any bruising he may have had to his right hip, as demonstrated in the bone scan report.

107. The plaintiff also alleges that he has sustained a psychological and/or psychiatric condition. Reports were tendered from Dr Thomas Clark dated 13 March 2018 (Exhibit A p.447) and Dr Robert Lewin dated 4 September 2018 (Exhibit 4 p.771). Unfortunately psychiatric evidence is based upon the histories that have been provided by the plaintiff to each of the doctors. They are inherently subjective. Neither of the doctors was required for cross-examination, and the plaintiff in fact gave very little evidence about this aspect of his claim.

108. Whilst the plaintiff has had a history of psychiatric health issues, given my earlier findings with regard to the plaintiff’s credit, I do not accept that he suffers from any psychological or psychiatric condition as a consequence of the accident.

109. I find that the plaintiff suffered a serious injury in the accident which fortunately had resolved within some months of the accident.

110. Having found that the consequences of the injury sustained in the accident had resolved within months, I must compare that circumstance with a most extreme case to determine non-economic loss. Given the parts of his evidence which I have accepted based on independent corroboration, I would find that he is 18% of a most extreme case, equating to $13,500.00 for non–economic loss.

111. The evidence about treatment and medical expenses does not support a significant award. A number of pharmacy receipts were tendered, but that does not cause me to believe that a large award ought be made with regard to out-of-pocket expenses. The evidence given by the plaintiff that he could not afford to have treatment for his alleged injuries as he had to buy his wife an expensive pram is absurd, and I do not accept it. A buffer of $1,000.00 would be an appropriate award for past and future out-of-pocket expenses.

112. A claim is made for domestic care and assistance. I remain of the view that the plaintiff is exaggerating all of his evidence with regard to this issue. Turning to the evidence given by his wife, Alana, with regard to what he did and didn’t do around the home, and what he now can and cannot do around the home. I accept that Alana was not fabricating all of her evidence, however, even if I accepted all of the evidence, the claim would not reach the threshold of 6 hours per week for 6 months, as I have found that the plaintiff’s injuries had healed by at least 17 May 2018. I therefore would make no award for domestic assistance.

ECONOMIC LOSS

113. The plaintiff gave evidence that in the weeks prior to the accident he was earning between $1,500 and $1,700 per week operating his own business which was a mobile barber shop. The plaintiff had commenced barbering in 1997 and continued doing that work off and on until the accident.

114. It was conceded by plaintiff’s counsel that he does not have an extensive pre-accident work history. The plaintiff gave evidence that there were significant periods of time during which he was in receipt of Centrelink benefits. His evidence was, and is supported by his wife’s evidence, that he has done little, if any, work since the accident.

115. The plaintiff claims damages in respect of his loss of earning capacity, and if I determine that the loss of the capacity to earn is modest, I can then award a cushion.

116. The contentious issue is whether the plaintiff had a demonstrated capacity to earn before the accident.

117. When giving evidence as to any records that the plaintiff may have kept as to his pre-accident earnings, the plaintiff (T p201) indicated that he had kept records. When there was a subpoena issued for those records, they were not produced. The defendant submits that I can draw and inference that they would not have assisted his case, and I do so.

118. The plaintiff’s counsel accepts that in determining this issue, the credit of the plaintiff is relevant, but not fatal. That is, he may not have been completely forthright, but he is injured. I accept that.

119. The tax returns and bank statements hat were put into evidence do not assist in determining his pre or post-accident earnings. The plaintiff conceded that he may have overestimated his pre-accident earnings for the benefit of this case, but may have under estimated them for the purposes of filing a tax return, to potentially minimize his taxation obligatins.

120. There are also entries in his bank accounts after the accident, which are captioned “Ahmed wages”. The plaintiff was adamant that these were not wages, as he has not worked since the accident. I find his explanation completely unsatisfactory.

121. Again, given my findings about the plaintiff’s credit, unless there is reliable independent evidence in support of such a claim, I do not believe the plaintiff. He admitted to filing tax returns that were false and accepting Centrelink benefits when he knew that he was not entitled to do so.

122. I find that his pre-injury capacity to earn was sporadic at best, and the evidence he has given in that regard does not support a pre-injury capacity of $1,500- $1,700 per week.

123. As I have accepted that he was unable to work from the date of the accident until 17 May 2018 due to the effects of the injuries, I would allow a figure of $15,000 for that period. I find that from that day his capacity to earn was not restricted by any effects of the injuries sustained in the accident, and he would not be entitled to any award for future economic loss.

ORDERS

1. Verdict and judgment for the defendant against the plaintiff.

2. Plaintiff to pay defendant’s costs as agreed or assessed.

3. Liberty to apply to my associate within 7 days if alternate costs orders are sought.

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Decision last updated: 29 March 2019