Antonijevic v Malhi
[2021] ACTMC 9
•30 June 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Antonijevic v Malhi |
Citation: | [2021] ACTMC 9 |
Hearing Date(s): | 23, 24, 25, 26 November 2020; 14 January 2021; 10, 11 June 2021 |
DecisionDate: | 30 June 2021 |
Before: | Magistrate Theakston |
Decision: | See [50] |
Catchwords: | CIVIL LAW – damages for personal injuries – damages for negligence – pre-existing condition – whether injuries are attributed to the incident – whether the incident exacerbated pre-existing conditions |
Cases Cited: | Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Lumley v Sainsbury [2017] ACTSC 40 Malec v J C Hutton Pty Ltd [1990] HCA 201; (1990) 169 CLR 63 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 |
Parties: | Bora Antonijevic (Plaintiff) Jagiwan Malhi (1st Defendant) Insurance Australia Group Limited trading as NRMA Insurance Limited (2nd Defendant) |
Representation: | Counsel A Richards (Plaintiff) J Pappas (1st and 2nd Defendant) |
| Solicitors Prail Lawyers (Plaintiff) Sparke Helmore (1st and 2nd Defendant) | |
File Number(s): | CS 416 of 2016 |
MAGISTRATE THEAKSTON:
Introduction
The plaintiff claims damages due to negligence from a taxi driver and his insurer, arising from a fall by the plaintiff when alighting from a taxi. The plaintiff claims the driver moved the taxi forward before the plaintiff had safely exited the vehicle. That movement of the taxi is said to have constituted negligence and caused the fall. It was agreed that injuries resulted from the fall. The defendants say the taxi did not move and there was consequently no negligence. In the alternative, the defendants alleged contributory negligence. During the hearing the defendants also challenged elements of the damages claimed.
Accordingly, a key issue is whether or not the first defendant moved the taxi while the plaintiff was attempting to alight.
This matter was originally heard before Magistrate Morrison, with judgment being entered for the plaintiff. However, on appeal it was agreed that there was a material error in the transcript, of some significance, which was decisive to the outcome. The matter was remitted back to this court for re-hearing and subsequently heard by me. Ultimately, I have strong reservations about the evidence of the plaintiff. In contrast I comfortably accept the evidence of the defendant. Further, the evidence of a third witness was that the taxi did not move. I will order judgment be entered for the defendant.
I will address the following topics:
(a)the unchallenged facts;
(b)the evidence of the plaintiff;
(c)the evidence of the first defendant;
(d)the evidence of Mr Sefa;
(e)whether negligence is established, including whether the taxi moved; and
(f)causation and damages.
Unchallenged facts
On the afternoon of 4 November 2014, the plaintiff and his former neighbour, Mr Sefa, were drinking at Mr Sefa’s home in Ainslie. Sometime after 4:00 pm, the two men decided to travel from Ainslie to the Labour Club in Canberra City. It was Melbourne Cup Day. They hailed a taxi driven by the first defendant. The first defendant was insured by the second defendant. The first defendant drove the men the short distance from Ainslie to a location near where the supermarkets are located in the Canberra Centre.
Mr Sefa, who was in the front passenger seat, exited the taxi and closed the door firmly. The plaintiff, who was in the left rear seat exited the vehicle but fell to the ground. The fall caused injuries to the plaintiff’s neck, back and left knee.
At that time the plaintiff weighed 120 kg and had difficulties removing himself from the taxi. He had a history of hospital admissions following excessive alcohol consumption and falls due to dizziness.
The evidence of the plaintiff
The plaintiff, Mr Antonijevic, gave his evidence with the assistance of a Serbian interpreter over four days. He consistently described the taxi moving a short distance as he was mid-way through his attempt to alight. He said it was due to that movement that he fell and suffered a number of injuries.
However, there were a sufficient number of inconsistencies within the plaintiff’s evidence that cause me enough concern to have strong reservations about the reliability of his claim.
The plaintiff made a number of inconsistent reports about the details of what occurred when he fell. During examination-in-chief he said that when the taxi moved, he fell on his left leg and hit his head on the concrete and had to pull his right leg out of the taxi. He turned his body onto his back and lay on the pedestrian crossing. Later, during cross-examination, he added that he had fallen on his stomach. In court he conceded that he had not been dragged nor run over by the taxi. However:
(a) the initial police report and the reports of Doctors Pillemer, Dias and McDonald each record the plaintiff as having claimed he was dragged or moved some metres by the taxi;
(b) the record of the ambulance crew recorded the plaintiff initially claiming the taxi had run over his leg, and that he later retracted that claim; and
(c) a report by Dr Pillemer record the plaintiff having claimed his left hand was run over by the taxi.
I note that while there was some suggestion the plaintiff’s daughter may not have been the best interpreter for one of the plaintiff’s visit to Dr Pillemer, professional interpreters were engaged for the visits to Doctors Dias and McDonald.
The plaintiff also gave inconsistent evidence about a number of peripheral matters, namely:
(a) claiming that he had never had a problem with alcohol, but later conceding that he had at times drank a lot and had been hospitalised on a number of occasions as a consequence;
(b) claiming that before the incident he was physically well, but later conceding that before the incident he had been hospitalised following a fall at home, which occurred when he experienced a bout of dizziness;
(c) claiming that the fall at home was not a big issue as he did not have any bruises, but later conceding that he spent two nights in hospital and received sutures;
(d) claiming to have never had diabetes, but later conceding that he suffered from the condition;
(e) claiming to have never had asthma, but later conceding that he had been treated for the condition; and
(f) claiming that his liver was good, but later conceding that he was told by his doctor that he had abnormal liver function.
Additionally, the plaintiff conceded early on in his evidence that at the time of the incident he was in shock and did not know what had happened. Later, during cross-examination the plaintiff made the following frank concession in conjunction with repeating his belief about the taxi having moved:
Mr Pappas: But in terms of why you fell out of the taxi, you worked that out at hospital, didn't you?
Plaintiff (interpreter): I fell because the taxi took off, moved.
Mr Pappas: And you worked that out within two or three hours when you had time at the hospital to think about it, didn't you?
Plaintiff (interpreter): I didn't imagine anything, I didn't make anything up. It was - I said what happened. I did fall out of the taxi and that's what I'm saying. …
Mr Pappas: And the next question that was asked of you on 1 March 2017 was this, 'Is the answer, sir, 'Yes, I only worked it out when I was at the hospital''?
Plaintiff (interpreter): The truth is that I didn't know what happened and why. (emphasis added)
He also conceded that at the first hearing he conceded that he only began to understand what had occurred once he was at the hospital. During cross-examination, the plaintiff also described later returning to the incident site to look for a clue about what may have caused the incident.
Additionally, and on a number of occasions, the plaintiff’s evidence was non-responsive, evasive and even supercilious. At times rather than answering a question, he volunteered the absurd. For example, the following exchange occurred during cross-examination when the issue of his drinking history was being explored:
Mr Pappas: How many beers did it take before you've called an ambulance to go to hospital?-
Plaintiff (interpreter): More than five.
Mr Pappas: Right. And what, when you got to the sixth beer you'd ring the ambulance, would you?
Plaintiff (interpreter): I start feeling unwell and then of course I call the ambulance.
Mr Pappas: Well, at number six beer you start to feel unwell, is that your evidence?
Plaintiff (interpreter): That's natural, that the more you drink, you feel worse.
Mr Pappas: Do you say that by the time you get to number six beer you would start to feel unwell?
Plaintiff (interpreter): They're small beers and yes, I used to have six.
Mr Pappas: Then my question, sir, is by the time you had drunk six beers, did you start to feel unwell?
Plaintiff (interpreter): No, I drank two boxes of beer every day. Even three. Whatever suits you. (emphasis added)
The plaintiff submitted that there were two misleading propositions, about his previous evidence that were put to the plaintiff during cross-examination. They relate to whether the plaintiff had earlier mentioned that Mr Sefa had slammed the taxi door and whether Mr Sefa had held the plaintiff’s head in his lap after the fall. The defendant accepted the misleading nature of those questions and described them as inadvertent mistakes. The plaintiff submitted that consequently, he became confused and understandably agitated. He goes on to submit that the Court should limit the use of the associated and all subsequent cross-examination. Unfortunately, the submission does not suggest how the use should be limited, other than make a reference to credit during oral submissions.
It is probably trite to accept that no weight should be placed on answers given to misleading questions. However, in relation to the plaintiff, cross examination continued for some time after those questions, including into a subsequent day some months later. I do not accept that those questions, of themselves, had an effect to any degree that would justify unrelated and subsequent evidence, at this late stage, being either disregarded or limited in another way.
I also note that the above cross-examination was described by the plaintiff as being aggressive. I do not see a basis for that claim. While the cross-examination was clear, direct and included repetitive questioning when the plaintiff failed to answer responsively, it was not inappropriate in content, volume or tone.
Ultimately, I have strong reservations about the reliability of the plaintiff’s evidence, in particular when it comes to the inquiry about whether or not the taxi moved as he was attempting to alight.
The evidence of the first defendant
Mr Malhi, the first defendant, gave evidence. He described being hailed by the plaintiff and Mr Sefa who requested a lift to nearby Canberra City. He thought they were drunk and was worried that if they did not pay the metered fare, he would be required to do so from his own pocket by his employer. He consequently did not start the meter and instead gave them an estimate of $10 - $15. He was heading to Canberra City anyway.
He stopped the taxi in Canberra City, kept his foot on the brake and placed the automatic transmission into ‘park’. Mr Sefa paid him $10, exited from the front passenger seat and closed the door ‘hardly’. I understood that term to mean he closed the door at least ‘firmly’.
The first defendant then heard the noise of the plaintiff falling. He looked and saw the plaintiff on the ground. He exited the taxi and offered assistance.
During cross-examination, the first defendant maintained the same version of events. There was no suggestion that his earlier evidence had been inconsistent. Much was made during cross-examination of the fact that the first defendant had not used the taxi meter and that he may have over charged Mr Sefa somewhere between $2.50 and $7.50. It was suggested that it was an offence to not use the meter. The first defendant admitted he should have used the meter but denied ever being told it was wrong to not use the meter. The explanation provided by the first defendant about why he took this course is plausible. I do not see those allegations of any real assistance in determining the facts in issue.
The first defendant admitted that immediately after the incident Mr Sefa claimed that he had move the taxi, and that he had then immediately denied the same. I note that ambulance records also record that denial. This will be dealt with further below in the discussion about Mr Sefa’s evidence.
It was also suggested to the first defendant that demand for taxis was high at the time. He denied that. I was invited to take judicial notice that demand for a taxi at that time on Melbourne Cup day in Canberra would be high. I simply have no appreciation of that fact and would have expected that the demand for a taxi on Melbourne Cup day would vary greatly depending on the precise time relative to the completion of the race. In any event, I think little turns on that fact.
Ultimately, I found the first defendant’s evidence, as described above, convincing.
The first defendant was cross-examined about his opinion that the plaintiff was intoxicated. It became clear during that examination that the former had limited opportunity to observe the latter, and that in any event the first defendant did not provide an adequate description of any observations that he may have made to form that view.
The ambulance notes record alcohol being observed on the plaintiff’s breath. Additionally, the hospital records record a blood ethanol reading of 9.4 mmol/L approximately three and a half hours after the incident. That reading appears to equate to an ethanol concentration in the blood of approximately 0.036%. That unit of measurement is different to what is routinely put before the court for drink driving matters, and without further evidence it is difficult to know what to make of that value.
In those circumstances and while I accept the first defendant had a genuine belief that the plaintiff was intoxicated, I cannot find on the balance of probabilities that the plaintiff was.
The evidence of Mr Sefa
Mr Sefa did not give evidence in person at this hearing, instead his evidence from the first hearing was tendered by the defendants with the plaintiff’s consent. That evidence was difficult to follow and later involved the use of an interpreter. While Mr Sefa initially indicated that he saw the taxi move, he ultimately conceded:
Mr Pappas: But your concern, when you made a signal to the taxi driver – please, Mr Interpreter – was that Bora was slower than you and you thought the taxi was about to drive away?
Mr Sefa (interpreter): Yes, that’s what – that’s what I thought. He was already moving.
Mr Pappas: When you say he was already moving, the taxi didn’t move at all before Bora fell on the ground, did it?
Mr Sefa (interpreter): I told you that I don’t know, that I didn’t see when Bora fell down. I saw him down and he was calling my name.
Mr Pappas: Mr Sefa, my question is a very simple question. You did not see the taxi move one inch before you were aware that Bora had fallen on the road. Isn’t that the truth?
Mr Sefa (interpreter): You see, I don’t remember. I don’t know. It’s possible that it’s true.
Mr Pappas: Have you got any memory at all of that taxi moving before Bora fell on the ground?
Mr Sefa (interpreter): No. No, I don’t have it. I don’t know.
I find it implausible that had Mr Sefa observed the taxi move, he would then have no memory of it doing so four years later when he gave his evidence in April 2018. That is because it would have been immediately clear to Mr Sefa that this feature of the incident was of importance. Additionally, the above concession means that little weight can be placed on Mr Sefa’s contemporaneous representation suggesting that the taxi had moved. This is because in the above circumstances, a reasonable inference remains available that while Mr Sefa made the representation, he did so while simply speculating that the taxi may have moved.
Ultimately, Mr Sefa’s evidence does not assist the plaintiff’s case.
Negligence
In the circumstances where I prefer the evidence of the first defendant, have strong reservations about the evidence of the plaintiff and the evidence of Mr Sefa does not assist the plaintiff’s case, I am unable to find on the balance of probabilities that the first defendant moved the taxi as the plaintiff was attempting to alight. Consequently, I am unable to find that the first defendant was negligent as pleaded in the statement of claim.
Causation and damages
Out of completeness and in case I am wrong about the question of negligence, I will now deal with the issues of causation and damages.
It was conceded by the defendants that the plaintiff suffered some injury to his back and knee as a result of the fall. However, they do not concede any injury attributable to the incident beyond six months. I will address that further below.
The plaintiff relied upon the evidence of Dr Pillemer, an orthopaedic surgeon. Dr Pillemer concluded that the plaintiff had suffered soft tissue injuries to his neck, back and left knee because of the incident, and that it seemed that he had ongoing symptoms. He went on to suggest that there was an ‘additional functional component’ to those symptoms. During cross-examination, Dr Pillemer agreed that the said component was a euphemism to describe the plaintiff exaggerating his symptoms to some degree. He also noted that the plaintiff was suffering from a number of degenerative changes to his thoracic spine, lumbar spine and left knee, including diffuse idiopathic skeletal hyperostosis and osteoarthritis.
Following a second examination in November 2020, Dr Pillemer concluded that, while the plaintiff’s symptoms had improved since the initial examination in 2015, he still suffered symptoms in his neck, back and left knee related to the incident.
During cross-examination, Dr Pillemer conceded that when taking into account the plaintiff’s exaggeration of his symptoms, the underlying complaints would be consistent with his pre-existing conditions. However, he ultimately maintained his view that the ongoing symptoms were related to the incident.
The defendants relied upon the reports of Dr Dias, a consultant occupational physician, and Dr McDonald, a consultant orthopaedic surgeon. The plaintiff took the unusual course of not objecting to the admission into evidence of those reports but, during final submissions and without warning, complained that those experts had not been made available for the purpose of cross-examination as requested, and submitted that the evidence should be rejected in its entirety. If that course was intentional, it would clearly amount to sharp practice that should not be encouraged. But I have reviewed the transcript and it may be the case that the contents of defendant’s tender bundle were not appreciated by the plaintiff at the time of its tender.
Ultimately the only questions to be put to those experts was to invite them to concede that Dr Pillemer, having recently examined the plaintiff, would be in a better position to make the relevant assessments, including those relating to causation and injury. That was conceded by the defendants. In those circumstances the reports of the two doctors remained in evidence.
Dr Dias examined the plaintiff in October 2015 and December 2016 and concluded on each occasion that the plaintiff had suffered soft tissue injuries to his cervical spine, lumbar spine, knees and right wrist as a result of the incident. He also explained that the injuries would have clinically resolved within six months of the incident and that beyond May 2015 any ongoing symptomatology, disability and functional restrictions were attributable to pre-existing degenerative changes in the cervical spine, lumbar spine and left knee. In support of that conclusion, he ultimately relied upon mechanism of the injury, the resolution of symptoms in the right knee and left wrist before the first examination, the existence of the underlying conditions of degenerative cervical spondylosis, degenerative lumbar spondylosis, diffuse idiopathic skeletal hyperostosis affecting the thoracolumbar spine and left knee osteoarthritis, and the absence of change to the remaining symptoms between the two examinations.
Dr McDonald assessed the plaintiff in October 2015 and agreed with the conclusions and recommendations of Dr Pillemer, save he opined that the plaintiff’s ongoing neck, back and hand discomfort were related to a pre-existing inflammatory arthritic condition rather than the injury. It was unclear from the report how Dr McDonald reached that conclusion.
Prior to the incident the plaintiff had been seeing his general practitioner for many years. It was submitted without challenge, that the records in evidence contain no entry where the plaintiff complained about neck, back or left knee ailments.
Accepting that Dr Pillemer was in the better position to make an assessment about causation, noting that Dr McDonald did not provide sufficient reasons to justify his conclusion and recognising that the plaintiff had not previously complained about ailments to his neck, back or left knee before the incident, I prefer the evidence of Dr Pillemer and find that the plaintiff continues to suffer symptoms arising out of the incident.
I also note the decision of Lumley v Sainsbury [2017] ACTSC 40, where Murrell CJ at [54] adopts the principles from Purkess v Crittenden (1965) 114 CLR 164, Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 and Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 and observed:
A defendant bears the evidential onus of showing that a plaintiff suffered from a pre-existing condition … Where it is shown that the plaintiff did suffer from a pre-existing condition, the court is required to evaluate possibilities in order to estimate the likelihood that alleged hypothetical past events and possible future events would have occurred ... A proper assessment of damages requires judgement as to the consequences that may have flowed from the worsening of a pre-existing condition if the accident had not occurred … [citations omitted]
In the instant case, it was conceded that the plaintiff suffered from a pre-existing set of conditions. However, and other than the suggestion that the fall exacerbated those conditions, there was no evidence that would allow me to find with some reasonable level of precision the nature and degree of the pre-existing conditions, and how those conditions may progress and manifest if there had not been the fall. I am therefore unable to compare that set of hypothetical circumstances with what the evidence suggests has occurred. Accordingly, there is insufficient evidence to support reducing the plaintiff’s damages due to the pre-existing conditions.
In relation to the assessment of damages I note the following and make findings accordingly:
(a)The plaintiff was born in 1948, is 73 years old and has a life expectancy of 14 years;
(b)On 4 November 2014, the defendant fell from the taxi driven by the first defendant and suffered soft tissue injuries to his neck, back and left knee. Those injuries involved only a moderate degree of pain.
(c)The injuries have since involved ongoing pain and discomfort, of a moderate level. The plaintiff takes analgesics to manage that pain and discomfort.
(d)Surgical treatment for the injuries is not recommended.
(e)The plaintiff was not a well man before the fall, suffering from a range of chronic ailments, including degenerative conditions involving his cervical and lumbar spine and left knee, which are expected to get worse.
The defendants invited me not to accept the evidence of the plaintiff in relation to the level of assistance he had received in the past, which would justify Griffiths v Kerkemeyer damages. However, the assistance claimed is very modest and I comfortably accept the plaintiff’s evidence in that regard. In relation to future cleaning costs, there was no indication that the current subsidised arrangement would not continue, and I will therefore calculate future cleaning costs on the basis of the subsidised rate.
If I had found liability, I would have assessed damages as:
General damages $35,000
Interest on general damages (say $20,000 past, 4%, 6.5 years) $5,200
Past out of pocket expenses (as claimed) $3,500
Future out of pocket expenses (as claimed) $5,382
Past Griffiths v Kerkemeyer damages (as claimed) $5,915
Future Griffiths v Kerkemeyer damages (as claimed) $10,465
Past cleaning costs (as claimed) $3,360
Future cleaning costs ($15/week with multiplier of 598) $8,970
Total damages $77,792
Orders
The court makes the following orders:
1. Judgment be entered for the defendants.
2. Plaintiff to pay the defendants costs as agreed or assessed.
3. Order 2 does not take effect for 14 days from the date of these orders, and not at all if a party, within 14 days, files (with the registry) and serves a written notice requesting to be heard in relation to the question of costs.
| I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for decision of his Honour Magistrate Theakston Associate: Neerja Thirunavukarasu Date: 30 June 2021 |
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