Antonijevic v Malhi

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Antonijevic v Malhi
Citation:	[2019] ACTMC 15
Hearing Dates:	1 March 2017, 3 – 4 April 2018
DecisionDate:	1 May 2019
Before:	Magistrate Morrison
Decision:	See paragraph [78]
Catchwords:	CIVIL LAW – Damages for personal injuries – pre-existing condition – consequences which may have flowed from worsening of pre-existing condition if accident had not occurred – lack of evidence about those possible consequences – inability to reach conclusion about degeneration of pre-existing condition
Legislation Cited:	Road Transport (Alcohol and Drugs) Act 1997 (ACT)
Cases Cited:	Griffiths v Kerkemeyer (1977) 139 CLR 161 Lumley v Sainsbury [2017] ACTSC 40 Purkess v Crittenden (1965) 114 CLR 164 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Parties:	Bora Antonijevic (Plaintiff) Jagiwan Malhi (First Defendant) Insurance Australia Group Ltd t/as NRMA Insurance Ltd (Second Defendant)
Representation:	Counsel Mr D Richards (Plaintiff) Mr J Pappas (First and Second Defendants) Solicitors Canberra Lawyers (Plaintiff) Sparke Helmore Lawyers (First and Second Defendants)
File Number:	CS 416 of 2016

MAGISTRATE MORRISON:

The Plaintiff claims damages for personal injuries arising out of an incident when he fell from a taxi in Bunda Street, Canberra City on 4 November 2014. The first Defendant, Mr Jagiwan Malhi, was the driver of the taxi. The second Defendant is the insurer. The Plaintiff says that the taxi moved as he was alighting from it, causing him to fall. He pleads that, by causing the taxi to move, the first Defendant breached his duty of care to the Plaintiff, and that the Plaintiff was injured as a result of the fall. For their part, the Defendants say that there was no breach of duty because the taxi was stationery when the Plaintiff fell from it and, in any event, that the Plaintiff has exaggerated his injuries and their consequences.

Part of the contest at hearing was whether and, if so, to what extent, the Plaintiff was affected by alcohol. A conclusion that the Plaintiff was affected by alcohol does not of itself mean that the first Defendant did not breach his duty of care to the Plaintiff, but it would provide an explanation for what the first Defendant says took place – that is, that the Plaintiff simply fell from taxi.
In the Plaintiff’s case, testimony was given by the Plaintiff and by a Mr Samual Sefa. Mr Sefa is a friend of the Plaintiff and was also a passenger in the taxi.
The first Defendant gave evidence in the defence case.
The evidence of the Plaintiff
The Plaintiff said that he had travelled to the home of Mr Sefa in Ainslie on the day of the incident. He and Mr Sefa had been neighbours before the Plaintiff changed address. The Plaintiff said that he was intending to collect mail. He went on to say that he consumed two beers while at Mr Sefa’s residence.
The Plaintiff described how he and Mr Sefa had hailed a taxi to take them to Civic. He went on to describe what took place when the taxi arrived at their destination in this fashion:
HIS HONOUR: So Sam opened the door and got out.
INTERPRETER: Yes. I was still inside because at that stage I was quite heavy, about 120-odd kilos. Sam was out when I opened the cab door. I put my left foot on the concrete and I sort of set forward to get out of the cab.
HIS HONOUR: Sorry, what was that last bit, I what?
INTERPRETER: I sort of moved forward to get out of the cab.
HIS HONOUR: And the motion - you've indicated a motion there and I didn't notice - I was looking down and I didn't notice whether Mr Antonijevic had done so also. Is that indicating a forward movement from the waist, is it?
INTERPRETER: Yes. I wanted to get out of the left side as I was sitting on the left side. So I opened the door and I put my left foot forward on the concrete because I needed to get out. The door was fully open. My right leg was still in the car. As I was lifting myself out half of my body, the top half of my body was out of the car and the rest was inside the car. The cab started moving. I lost my balance and I hit the ground with my left knee. The cab continued to drive for approximately a metre - I don't know. I then fell on my back and hit my head on the concrete because as he moved the taxi I twisted my leg and I thought that I had broken my leg. Also I twisted my back. The taxi stopped. I was basically lying on my back on the concrete in front of the shop.
MR RICHARDS: I'll stop you there. At that time, when the taxi stopped, did you know or did you observe where Sam was at that time?
INTERPRETER: He was standing next to the taxi looking at me.
(Transcript 1 March 2017 (18) [13] – [42])
The Plaintiff refuted a suggestion that he was intoxicated and had simply fallen from the taxi, saying “I was not drunk”.
When asked about what happened after he had fallen the Plaintiff said this:
INTERPRETER: There were quite a lot of people around me. There were probably about 10 people around me, including Sam. I was in shock and I was lying there for about maybe 10, 15 minutes. Then the ambulance arrived. Who called them I don't know. I was lying on the concrete. They asked me what's happening and I told them my head hurt. They put something around my neck. They put me in the ambulance and then they drove me to the hospital.
(Transcript 1 March 2017 (21) [34] – [40])
The Plaintiff denied having told anybody that the taxi had run over his hand or leg, adding that he “told them that I was lucky he didn’t run over me”.
The Plaintiff was asked whether he had a conversation with anyone at the hospital about what had happened to him and he gave this evidence:
INTERPRETER: I was lying on a bed and Sam suddenly appeared in front of me. I asked him, "What are you doing here?" He said that the ambulance had brought him with me. I asked him what had happened and he told me that as I was getting out the taxi had moved. Then I asked him if he had called the ambulance and he said no. So I said, "Who called them?" Then the people there asked where - if I knew where I was. I thought - and they told me I was in Calvary. I thought I was in Woden. They asked me if I knew who the Prime Minister of Australia was. I basically didn't even answer that one. I was quiet. They kept writing things down. I think they were asking me questions to find out whether my brain worked.
(Transcript 1 March 2017 (22) [43] – (23) [8])
The Defence pressed in cross examination and in submissions that the Plaintiff’s enquiry of his friend about what had happened suggested that he himself did not know. My own conclusion is that the words spoken in the enquiry were in the nature of a figure of speech and should not be interpreted literally.
The evidence of Samual Sefa
In his evidence in chief, Mr Sefa said that the taxi driver had turned off the engine when he stopped the vehicle. He said that when he was closing the door the taxi driver was “brooh”. In making that sound he demonstrated an action which was described for the transcript as the action of a person placing their hand on a key in an ignition situated in the vicinity of the steering wheel of the vehicle.
His evidence in chief about what he actually saw at the relevant time was not easily extracted from him and is not easily extracted from the transcript. The following is what I assess to be a fair summary of the relevant extracts which appeared over several pages of the transcript of 3 April 2018:
So when you've got out of the taxi did you see what Bora was doing, what Mr Antonijevic was doing?---No.
...
MR RICHARDS: We'll go back again. So you said you saw – and then you did a gesture. You said you saw Bora - - -?---Yeah, was shaking little bit. He was - - -
HIS HONOUR: Now, the action that you're demonstrating there is you're moving your upper body and your head from left to right?---He was – so far I can see, he was falling, yeah. Only I can – he was falling.
Yes, Mr Richards.
MR RICHARDS: What was happening, if anything, with the taxi at the time he was falling?---I was trying to tell to the taxi driver to stop, to don't go, but - - -
…
HIS HONOUR: I think you said that you saw Bora. He was falling?---Yes.
The question you were asked, I think, was what was the taxi doing.
MR RICHARDS: Yes. What was the taxi doing?---Taxi was stopping the car because he start and he stopped. And he come out of the car (indistinct) when Bora - - -
…
We need one step each step. What was Bora doing? What was the taxi doing?---Bora was trying to get out of the taxi as well and I think he didn't manage to go out of the taxi because he was – is fat, needs some more time to get out of taxi. He's not like me. I'm skin and bone, like you see.
You said before in your evidence that you told the taxi to stop?---Yes, I told.
What do you mean by that?---I told not to stop but I was (indistinct) because the door was closed and windows was - - -
HIS HONOUR: The witness is indicating an action with his hands. So he has got his two hands up in front of his body, palm facing out at about shoulder level, and moving them backwards and forwards, to and from his body. I understand that to have been indicated by Mr Sefa to be the gesture he was using towards the taxi driver?---Yes.
Is that right?---Yes.
Why were you doing that gesture because him?---Because he started to stop, don’t do.
When you say he started, what do you mean by he started - - -?---He started the car to go. He went maybe metre, I don’t know, maybe less I don’t know when boy was still in the car. Maybe when he went out of the car from that he fall over.
Bora was still in the car when you just said the taxi started to go.
HIS HONOUR: The expression was he started the car to go.
MR RICHARDS: To go and the taxi, I think you said moved a metre, a metre and a half or maybe half a metre.
HIS HONOUR: Yes, well went maybe one metre or less?---Yes.
MR PAPPAS: And Bora was still in the car and maybe then he fell out.
MR RICHARDS: While the taxi was going half a metre, a meter or maybe less where was Bora?---Bora was still in the car. Half, maybe was one leg outside one and - - -
And what happened, if anything - - -?---When, I don’t know how he come out but very fall. In that minute or two seconds or two, I don’t know what’s happening because I was closing, I didn’t see whether Bora fall over but I saw him down in the street. Then some people they come, given him some water. I said don’t give them water but give him some other drinks like give him some Coca Cola.
(Transcript 3 April 2018 (72) [22] – [23], (73) [3] – [15], (74) [1] – [7], [26] – (75) [27])
The cross examination of Mr Sefa about what he actually saw at the relevant time was again not easily extracted from him and is not easily summarised. The following is what I assess to be a fair summary of the most relevant parts of his evidence which appeared over several pages of the transcript of 4 April 2018:
MR PAPPAS: Yes, indeed, and I'll break it into two bits, Mr Interpreter. Yesterday, you said to his Honour you didn't see fall Bora fall as you were closing your door at the time. Was that a truthful answer?
INTERPRETER: Yes, I was - I did shut the door, but I don't know how he fell.
MR PAPPAS: You also said - and I'll quote, Mr Interpreter, so if you just start with, "And you also said." "I don't know how he came out."
INTERPRETER: I don't.
MR PAPPAS: Was that a truthful answer also?
INTERPRETER: Yes. Yes, I don't know. How could I know?
…
MR PAPPAS: You spoke to the taxi driver, didn't you?
INTERPRETER: Two or three words maybe I told him.
MR PAPPAS: Do you remember those two or three words?
INTERPRETER: I think I said - I think I said, "What have you done?" That's what I told him.
MR PAPPAS: I suggest to you that what you did say was, "You must have moved the cab." Is that what you said?
INTERPRETER: I'm telling you, I don't remember.
MR PAPPAS: Even though I am suggesting a form of words to you, that doesn't help your memory. Is that what you say?
INTERPRETER: Yes, I don't remember.
MR PAPPAS: You don't remember saying anything to the taxi driver at all about the cab moving, is that so?
INTERPRETER: No.
MR PAPPAS: You didn't say to anyone else at the scene of the incident that the cab had moved, causing Bora to fall out, did you?
INTERPRETER: Sorry, I can't find the word. It could be "concluded", but it's possible, I don't know if I told them or not.
MR PAPPAS: Of course, if you believed that Bora fell out of the cab because it moved, you would have said something, wouldn't you?
INTERPRETER: Most probably, yes.
MR PAPPAS: Yesterday, when you told his Honour that you made a sign to the cab driver with your hands, urging him to stop where he was, that was because - sorry, go on - that was because you thought he was going to drive away?
INTERPRETER: Yes.
MR PAPPAS: You were concerned because you had already got out of the cab?
INTERPRETER: Yes, I was outside the cab, yes.
MR PAPPAS: You were concerned because you knew Bora was much slower moving than you?
INTERPRETER: No, he wasn't move slowly.
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?
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?
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?
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?
INTERPRETER: No. No, I don’t have it. I don’t know.
[No re-examination of Mr Sefa took place].
(Transcript 4 April 2018 (17) [37] – (18) [6], [13] – (19) [43])
The evidence of Mr Jagiwan Malhi
Taking evidence from Mr Malhi also presented some challenges for Counsel.
The overall effect of his evidence in chief was that Mr Sefa paid the fare, and that the Plaintiff fell out of the back seat and that he had not moved the taxi at that point in time. The following extract from the transcript of his evidence in chief sets out, in part, what was said:
The man in the front paid you some money, then what happened?---Then he shut the door. I heard the noise, the back. The guy who was sitting on the back, he fell over. Then I went. [emphasis added]
…
MR PAPPAS: Just pausing there if you would, we go back a little bit. When you first heard a noise and realised the man had fallen down, where were you? ---I was in the cab.
Did you look to see what the noise was?---Yep.
What did you see from where you were seated?---Sorry?
What could you see from where you were?---I saw in my mirror – side mirror, the man was like (indistinct).
At that stage, what were the controls of the taxi cab?---It was in parking.
Had you moved the taxi cab at all?---No.
When you went around to try and help the man, I think you said he couldn’t or wouldn’t get up?---Yep.
Did you have any conversation with that man or anyone else, to suggest that you’d moved the cab?---Only the man who was fell down. He was saying, you were moving the cab.
Did you say anything?---I said no, it was in park, so it can’t be moved.
You waited there I think until the ambulance came?---Yep.
You saw the man placed in the ambulance?---Yep.
Did anyone challenge you at that stage to suggest that you’d caused the accident or anything like that?---No, only the gentleman who fell over. (T26 day 3)
(Transcript 4 April 2018 (25) [10] – [13], [36] – (26) [21])
The cross examination of Mr Malhi was somewhat tortuous. It is not possible to summarise it any way which accurately represents its overall effect. There are some aspects of it which have influenced my findings and I set them out below. For brevity I have not included the full context, but I am satisfied in each case that the context does not affect the meaning to be taken from the words used by the witness. I should record that Mr Malhi did not waiver from his testimony that he had not moved the taxi before the Plaintiff’s fall.
MR RICHARDS: You accept that he closed his door?---Yes.
Then what I want to suggest to you, is that you then started to drive off, because you thought both parties were outside the taxi?---No.
You did that because you were in a hurry, didn’t you?---No, I did not that.
Did you check before your rear passenger, Mr Antonijevic, before you started to drive, whether he was out of the vehicle?
MR PAPPAS: I object.
[The basis for the objection was not apparent to me but it resulted in the question being withdrawn].
…
HIS HONOUR: Perhaps, can I ask this? Did you actually see the rear passenger fall out of the cab?---I just - I see, like, listened the noise only.
MR RICHARDS: So, how long between you observing him in this position, getting out, are you hearing the noise? Was it shortly--?---I can't exactly tell exact - I can't tell you the exact time but heard the noise. That's the time when I went off from the kerb and saw--[emphasis added]
And this is in that period of time of 30 seconds to one minute between the front passenger having closed that front door--?---Yep.
--and you hearing the noise?---He was closed the door and he was standing out of the cab.
HIS HONOUR: Now, just to clarify for me, you've said that you saw the rear passenger moving out of your cab?---Yep.
But you didn't see the rear passenger fall?---Yep.
So, that means that you must have looked away then at some stage?---Sorry?
You must have looked away then?---Yes.
All right.
MR RICHARDS: And when you did look in your rear view mirror - was that your side mirror or your rear view mirror? Which mirror were you using?--- On the side mirror.
What did you see when you looked - observed the passenger? What position was he in?---Sorry?
What position?---He was - when I, I heard the noise, that's it, and he was fell over and I saw in the window - in the side mirror and that time, I move out from the kerb. [emphasis added]
But before you get there, what did you see? Describe how you saw him positioned? Where was he?---In the side view mirror.
Was he standing up? Was he laying down? Was he--?---He was going out from my cab.
You saw him falling?---Sorry?
You saw him falling?---He is going out from my cab then I did not see anything on that. I thought he was going out and after that, I heard the noise
Then you looked in your rear-view mirror?---On the side mirror.
And what did you see?---He was like fallen down on the floor.
(Transcript 4 April 2018 (33) [1] – [11], (56) [38] – (57) [42])
The aspects of the evidence of Mr Malhi which have materially influenced my findings centre around what he says about having moved the taxi after the Plaintiff fell from the vehicle. Mr Malhi’s testimony that he had moved the vehicle was not pursued in cross examination as it might have been. That may have been because it was somewhat lost in the haze of the tortuous nature of the questioning. In any event, I am satisfied that Mr Malhi did move his vehicle. The context in which his evidence of moving from the kerb appears makes it clear that it was proximate to the time of the Plaintiff’s fall and not, for example, that it was when Mr Malhi returned to the vehicle after having gotten out to assist the Plaintiff.
The testimony from Mr Malhi that he did “move off from the kerb” is important. It is consistent generally with the evidence in the Plaintiff’s case, although not as to the precise point in time at which that movement took place. The context in which Mr Malhi said “and he fell over and I saw in the window – in the side mirror and that time, I move out from the kerb” indicates that he was intending to convey that he moved the taxi after the Plaintiff fell from that vehicle. That evidence by Mr Malhi struck me as being contrary to what was the overall tenor of the Defence case, which I had understood to be that it was not conceded that the taxi had moved at all – whether immediately before or immediately after the Plaintiff’s fall from it.

Be that as it may, what matters is the inferences which are to be drawn from that evidence by Mr Malhi. Having regard to the other evidence and accepting Mr Mahli’s own testimony that he moved the vehicle, it follows, as a matter of logic that he moved off from the kerb when the rear passenger door was still open. For him to have done so causes me to doubt his level of awareness about what was taking place in the rear of the taxi. That conclusion makes more likely the Plaintiff’s assertion that Mr Malhi drove off while he was in the process of getting out of the taxi.
Mr Malhi had also given evidence that, after Mr Sefa had paid the fare and alighted from the taxi, he (Mr Malhi) was “standing and waiting for a job” and “waiting for another passenger”. That evidence is consistent with Mr Malhi’s state of mind being that his earlier “job” with Mr Sefa and the Plaintiff had been completed.
It is, however, also apparent on the evidence that, at the point in time when Mr Malhi said that he was waiting for another job, the Plaintiff was still in the process of alighting from the taxi. A mistaken belief by Mr Malhi that his job with the Plaintiff had been completed – that is, that both his passengers had alighted – would provide a logical explanation for his decision to drive off from the kerb.
The reliability of the witness evidence
Self-evidently much turns on my assessment of the credibility of the Plaintiff, Mr Sefa and Mr Malhi. The assessment of their evidence and their credibility has been made difficult by language barriers. English is not the first language of any of them.
The Plaintiff was 68 years of age when he gave his evidence in chief. He grew up in Serbia where he completed what he described as “8 years primary school and four years technical”. He came to Australia in 1970 at the age of 22. He worked in Australia as a labourer for one year and thereafter as a cabinetmaker for about 25 years. He then worked for himself “doing kitchens” for about 10 years before retiring from full time work. He was married in 1974 and divorced in 2010. He has 4 children aged between 31 and 41 years.
The services of an interpreter were used when the Plaintiff gave his evidence. It was evident that the Plaintiff understood some English, unsurprisingly for a man who has lived in Australia and held employment here for as long as he has. On occasions the Plaintiff answered in English questions which had been asked of him in English without waiting for them to be translated.
The cross examination of the Plaintiff was wide ranging. It canvassed how and when he first knew what had happened at the time of the incident; the extent of understanding of spoken and written English; what he had told others about the incident and his injuries; when he knew that his hand or leg had not been run over; the extent of his past alcohol consumption and the dizziness he had suffered as a consequence; whether he had ever said to anyone that he had been dragged by the taxi; the domestic assistance which formed part of claim; when he had started to moderate his drinking; and whether he had any discussions with Mr Sefa during the course of the hearing.
Defence counsel’s criticism of the Plaintiff’s testimony includes a submission that he was evasive and non-responsive and that some parts of his testimony contradicted other parts. Similar criticisms are made of the testimony of Mr Sefa.
Some allowance must be made for language barriers despite the use of an interpreter. Whilst I did get an overall impression that both the Plaintiff and Mr Sefa were at times evasive, I did also get a sense that the obtuse, obfuscating and indirect way in which they both answered questions was, in each case, a latent background personal or linguistic characteristic, and therefore not necessarily a reliable indicator of untruthfulness.
By way of example, I noticed that the witnesses occasionally answered questions by saying “maybe” or “it is possible” or the like. Such responses might ordinarily suggest a reluctance on the part of a witness to give a more definite answer or make a definite concession. I was, however, left with the impression that that particular response was sometimes used to mean what might be answered by another witness as “I think so”.
Much was made by the Defence during cross examination of the Plaintiff and in the written submissions about apparent contradictions or inconsistencies in what the Plaintiff said in his testimony, and also between what he said in his testimony and what he had allegedly said to other persons on other occasions. The Defendants press that the contradictions and inconsistencies point to a willingness on the part of the Plaintiff to lie, or at best to exaggerate, to further his claim. The Defendants’ submissions must be considered against the background of the language difficulties and the personal or linguistic characteristics to which I have referred.
The extent to which criticism of the Plaintiff’s reliability or truthfulness (based upon contradictions and inconsistencies) is justified depends upon conclusions about things that he said and what he meant to convey when he said those things. In some instances it also depends upon conclusions about whether what was said by the Plaintiff was accurately recorded by a third party, and whether the Plaintiff’s daughter had accurately interpreted what was said to or by the Plaintiff in the consultations for which she was present.
I have made a generous allowance for the considerations just referred to. Even taking those factors into account there were aspects of the testimony of both the Plaintiff and Mr Sefa which justify the Defendants’ criticism. However, I am not persuaded that a conclusion that the Plaintiff has deliberately lied is justified or that his testimony has gone beyond what many plaintiffs do by way of putting their best foot forward.
Was the plaintiff intoxicated?
It is convenient at this point to deal with what inferences can validly be drawn from the pathology report prepared following a blood test of the Plaintiff conducted at 20:00 hours on 4 November 2014. That report includes a reference to ethanol detected at a level of less than 2.2 mmol/L. The report also includes the following:
ETHANOL COMMENT
Ethanol measurements through this laboratory have no legal standing and are for medical purposes only. Serum or plasma ethanol concentrations are approximately 1.18 times higher than whole blood. Thus a serum/plasma concentration of 13 mmol/L will be roughly equal to 0.5% in whole blood.
I was asked by Mr Richards to infer from this evidence that the Plaintiff was not materially affected by alcohol. I do not accept that any inference can properly be drawn from the contents of the report, largely for the reasons which appear in the Defendants’ written submissions.
Courts regularly receive evidence about alcohol concentrations affecting the drivers of motor vehicles – typically for the purposes of prosecutions under the Road Transport (Alcohol and Drugs) Act 1997 (ACT). Those concentrations are presented in terms of the quantity of alcohol (expressed in grams) per 210 litres of breath or 100 millilitres of blood. I doubt that a Court can properly take judicial notice of the level of intoxication likely to be felt by a person with any given alcohol reading expressed in that usual format, on the basis that it is common knowledge. I say that because, whilst the intoxicating effects of alcohol are common knowledge, very few people have had the opportunity to have their alcohol reading (expressed in the usual format) analysed as it corresponds to the degree of the intoxicating effect experienced by them.
It would, however, be proper for the Court to take judicial notice that the legislature, relying upon scientific evidence, has made laws that prohibit persons with an alcohol concentration beyond a certain prescribed limit (0.05% of alcohol per 210 litres of breath) from driving a motor vehicle. From that certain inferences might be drawn about the possible effects of certain readings (expressed in the usual format) upon a person’s reflexes, reaction time, balance, et cetera.
The report which is in evidence includes (without further explanation) what purports to be an example of a conversion from ethanol content expressed in mmol/L to “[a percentage] in whole blood”. The Plaintiff’s submission appears to proceed on the basis that what is referred to in the example as “[a percentage] in whole blood” should be read as meaning what is meant in the format used for typical prosecutions – that is grams of alcohol per 210 litres of breath or per 100 millilitres of blood.
Without further evidence there is no basis for reading what appears as the example in the report in that way. Without further evidence, the level of alcohol detected in the Plaintiff’s blood and expressed in terms of millimoles per litre is meaningless as an indicator of his intoxication or sobriety at the time the sample was taken.
The drawing of an inference from that evidence would have been problematic in any event. The analysis was conducted from a sample taken some three hours or so after the incident. Even if a conversion to what I have called the usual format could be done, some additional expert evidence would be needed to extrapolate a likely reading at the time of the incident.
In the end result, I conclude that the report on its face, and without more, does not assist in establishing the Plaintiff’s level of intoxication at the time of the accident.
The evidence suggesting that the Plaintiff was intoxicated comes from the first Defendant, Mr Malhi, and from some observations in the hospital records.
Much evidence was received about the Plaintiff’s history of alcohol use and his presentation for medical treatment as a result. No application was made for it to be treated as tendency evidence. The Plaintiff concedes that he had historically been a heavy drinker. Both the Plaintiff and Mr Sefa concede some limited consumption of alcohol before the accident. Both deny that the Plaintiff was intoxicated. Mr Malhi alleges that the Plaintiff was drunk, but he had only a relatively limited opportunity to make an assessment of his state of sobriety.
There is evidence of the smell of alcohol on the Plaintiff’s breath, but he concedes having consumed beer. It would be surprising if the smell of alcohol was not apparent. He was also, on evidence which is not challenged, grossly overweight and had mobility restrictions. His impaired mobility, together with his less than perfect English, and the smell of alcohol may well have led others to believe that he had consumed more alcohol than he had.
In the end result I am not persuaded that the Plaintiff was affected by alcohol in any material way.
On the basis of the assessment of the evidence I have undertaken I reject Mr Malhi’s testimony that he had not moved the vehicle before the Plaintiff fell from it. I accept the testimony of the Plaintiff that Mr Mahli started to move the vehicle while he was alighting from it. I find that Mr Mahli’s conduct breached his duty of care to the Plaintiff and caused the Plaintiff to fall from the vehicle to the ground.
Contributory negligence
Contributory negligence is pleaded. The claim is particularised in this way:
Particulars
Failing to care for the manner in which the plaintiff disembarked from the vehicle;
Attempting to exit the vehicle in an intoxicated state when he knew or ought to have known that such a state reduced his ability to balance and move without risk of injury to his own person.
The evidence at hearing which most strongly supports a finding of contributory negligence is that about the Plaintiff’s level of intoxication. For the reasons given I have concluded that the Plaintiff was not materially affected by alcohol at the relevant time.
The Plaintiff was obese and had limited mobility. He needed to take care when alighting from the vehicle but the evidence does not support a conclusion that he contributed to his own injury by failing to do so.
Quantum
I turn to consider quantum.
The Plaintiff’s originating claim pleaded that he suffered injuries and disabilities particularised as follows:
Injuries and disabilities suffered by the Plaintiff:
(a)   Injury to the back and neck;
(b)   Bruising and contusion to the left knee;
(c)   Pain in the right hand and wrist;
(d)   Injury to head and headaches;
(e)   Restriction of movement of the back;
(f)     Difficulty sleeping;
(g)   Reduced capacity to participate in activities of daily living and social activity;
(h) The need to consume analgesic and other medication.
In addition there is a Griffiths v Kerkemeyer claim for past and future care and assistance as well as past and future out-of-pocket expenses.
The Plaintiff was not in employment at the time and so his claim does not include any component for past or future economic loss.
The Plaintiff’s claim for “injuries and disabilities” caused by the accident must be assessed against the background that he suffered from several and significant pre-existing medical conditions. In addition, the evidence supports a conclusion that he has not always been completely candid with those involved in his medical assessment and treatment. That in turn has left me with the impression that he had a tendency to overstate the effects of his injuries.
The Plaintiff had been examined by a Dr Pillemer on 25 May 2015 for the purpose of preparing an expert report. He had been examined at the request of the Defendants by Dr Dias on 14 October 2015 and again on 6 December 2015 and, again at the request of the Defendants, by Dr McDonald on 20 October 2015. I received into evidence reports from those doctors following those consultations. In addition, Dr Pillemer gave oral testimony.
What is perhaps the most significant aspect of the contest about the medical evidence can be stated shortly. The Defendants’ experts say that the injuries suffered by the Plaintiff in the accident would have resolved within 6 months and that any ongoing physical restrictions and treatment needs would be attributable to pre-existing degenerative changes. The Plaintiff points to what he says was the absence of relevant symptoms pre-accident to establish that they are attributable to the accident.
In the course of his evidence in chief, Dr Pillemer was told of the existence of a GP care management plan for the Plaintiff which referred to hypertension, hyperlipidaemia, carotid disease, stroke and ischemic attacks, diabetes, gastro oesophageal reflux disease, rectal polyps, excessive alcohol intake, dermatitis, and affective psychosis. He agreed with a proposition that if the Plaintiff was having serious or significant issues with his lower back, cervical spine or left knee then he would expect those issues to appear in the care plan: (Transcript 4 April 2018 (64) – (65)).
Under cross examination, Dr Pillemer confirmed that the Plaintiff’s daughter was with him during the consultation for the report and that she interpreted. He agreed that he was suspicious about whether the Plaintiff had injured his right hand in the accident and that he didn’t think that the injury to it was recent.
In the course of that cross examination, Dr Pillemer accepted that without knowing more about the Plaintiff’s medical history he was not able to “offer an opinion one way or the other [about] whether this accident caused a lot or very little disability”: (Transcript 4 April 2018 (68)).
In re-examination, Dr Pillemer was asked about how his opinion about the extent of the Plaintiff’s accident related disability just referred to was affected if certain assumptions were made. The assumptions he was asked to make related to the absence of pre-accident complaint by the Plaintiff about pain in his cervical, thoracic or lumbar spine or in his knee.
The Doctor’s response was this:
Circumstances [sic] medical reports are very helpful in trying to sort out these sorts of issues and if it can be shown, as suggested in my report, that he was or wasn't having symptoms prior to the accident, that would be very helpful in allowing me to assess the extent of any additional or new symptoms. As the proposition is put it suggests that Mr Antonijevic wasn't having problems with his neck or his back or his knee and if those reports are correct then I would certainly say that helps me a lot in suggesting that he does have ongoing problems as a result of the motor vehicle accident by way of possibly aggravation of underlying degenerative changes in his spine.
(Transcript 4 April 2018 (71) [39] – (72) [3])
The Defendants’ medical experts were not called by the Defendants and were not required for cross examination by the Plaintiff. It follows that I do not have the benefit of hearing from those experts about the proposition which had been put to Dr Pillemer – that is, how their opinions about ongoing physical restrictions and treatment needs not being attributable to the accident would be affected by an assumed absence of complaint by the Plaintiff pre-accident about pain in his cervical, thoracic or lumbar spine or in his knee.
In written submissions, Counsel for the Plaintiff points out that the medical evidence establishes that the Plaintiff consulted his general medical practitioner (Dr Milosevic at Wentworth Avenue Family Practice) on 29 occasions between 19 July 2010 and 4 November 2014. That is not challenged and I accept it to be the case. Counsel goes on to point out that there is no reference in the relevant medical notes to any complaint by the Plaintiff relating to his neck, back, hip or left knee. Again, that is not challenged by the Defendants and I accept it to be the case.
I have so far referred to what I have described as the apparent absence of complaint by the Plaintiff about certain things. Given the testimony by the Plaintiff and what are on their face quite comprehensive notes taken by Dr Milosevic, I conclude that the notes are accurate and that the Plaintiff did not complain to Dr Milosevic about pain, restriction or discomfort relating to his neck, back, hip or left knee. Further, on the face of what is before me, Dr Milosevic was a thorough GP and there is no suggestion that the Plaintiff was reluctant to disclose, at least to him, any medical problems. I also conclude therefore that the Plaintiff did not complain because he was not experiencing and pain restrictions or discomfort.
The notes referred to in the Plaintiff’s submissions are those of the medical practice and they appear at pages 129 to 137 of Exhibit P1.
The expert report of Dr Dias dated 28 October 2015 opens with a very long list of material under the heading of “Documents/Investigations Reviewed”. One of the items in that list is “Clinical notes as per Wentworth Ave Family Practice”. The report of Dr McDonald includes under the heading “File Material Available” an item “Clinical Notes – Wentworth Ave Family Practice, various”. I infer that both Dr Dias and Dr McDonald had available to them the material referred to in the Plaintiff’s submission, which does not include any record of complaint by the Plaintiff relating to his neck, back, hip or left knee.
There is nothing in the reports of Dr Dias or Dr McDonald to indicate that either of them was asked to direct their attention to the Plaintiff not suffering any pain restrictions or discomfort to his neck, back, hip or left knee, or to express any opinion as to how that absence of pain restrictions or discomfort would affect their opinion. Additionally, there is not, on the face of the material, any basis for assuming that the doctors did give consideration to the point and dismissed it as irrelevant to their opinion without making any reference to it in their reports. In the context of the matters in issue in this case, the point is an important one, and the absence of any reference to it in the Defence’s expert evidence affects the weight to be given to that evidence.
In the end result, the only expert evidence before me about the significance of the absence of pain restrictions or discomfort suffered by the Plaintiff pre-accident is that of Dr Pillemer. His opinion is as I have set out at paragraph 60 and I accept it. For what it is worth, it also appears from a lay perspective to be a common-sense proposition.

It is not in contest that the evidence establishes that the Plaintiff suffered from pre-existing medical conditions, including degenerative changes to his spine.
In Lumley v Sainsbury [2017] ACTSC 40, Chief Justice Murrell considered claims by a plaintiff in such circumstances. There her Honour said at [54]:
A defendant bears the evidential onus of showing that a plaintiff suffered from a pre-existing condition: Purkess v Crittenden (1965) 114 CLR 164 at 168. 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: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 (‘Malec’), discussed by Ipp JA (with whom Mason P agreed) in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [102]–[109] (‘Seltsam’). 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: Seltsam per Ipp JA at [107].
None of the medical experts was asked whether, if the Plaintiff was not experiencing pain, restrictions or discomfort pre-accident, he would in any event have been likely to have developed such symptoms despite the accident because of pre-existing degenerative changes, and if so, at what point in time. That is to say there is no expert evidence as to the course which his underlying conditions would have taken had the accident not occurred.
I have considered, but ultimately rejected as speculative, an argument that what the Defence’s experts say about expecting the Plaintiff’s injuries to have resolved within 6 months, involves, by necessary implication, an opinion about the worsening of his underlying conditions.
Any evidence in the Defence case about the likely course of the Plaintiff’s underlying conditions would have involved the expression of opinion on a purely hypothetical question because the Plaintiff was in fact injured as a result of the accident. Whilst the evidence would have been hypothetical the fact is that some evidence was required to support the Defence argument. The point was addressed by Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1965) 114 CLR 164 at 168–9 in these terms:
It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence ... which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence. In the present case, the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant’s pre-existing affliction or what its future effects, apart from the result of the defendant’s negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant’s negligence was the cause of the appellant’s permanent disability ...
The need for evidence as to possible consequences (sans the negligent act complained of) was also stressed by Ipp JA in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, where his Honour said at [109]:
Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p511).
In the end result, in the absence of other evidence I am unable to reach a conclusion about the course which the Plaintiff’s underlying conditions would have taken had the accident not occurred. It follows that there is no medical evidence to support reducing the Plaintiff’s damages on the basis that his pre-existing condition would have degenerated, and his present symptoms emerged, even if no accident had occurred.
That is not to say that the Plaintiff’s pre-existing conditions are irrelevant to the assessment of damages. It is apparent on the face of the material before me that he had a significant number of medical conditions, some of which were serious and some of which were relatively minor. It is obvious that those conditions were not completely symptom-free and in my assessment of the effects on the Plaintiff of the injuries suffered in the accident I take into account that he suffered, and was likely to continue to suffer, in any event from the sequelae of his various other conditions.
The findings I make are as follows:
a.The Plaintiff was born in April 1948. He is now 71 years of age and has a life expectancy of 15.71 years.
b.The Plaintiff suffered bruising and other soft tissue injuries to his neck, back, hip and left knee in the fall from the taxi on 4 November 2014. No injury was caused to his hand.
c.The injuries caused a moderate level of immediate pain and discomfort.
d.The injuries have been the cause of a modest level of ongoing pain, for which the Plaintiff reasonably takes regular pain relief medication, and have interfered with his ability to undertake basic cleaning and other chores around the home.
e.The injuries have been the cause of a slight limp.
f.The Plaintiff had pre-existing degenerative changes throughout his thoracic and lumbar spine but they were not, immediately before the accident, the source of any material pain, restrictions or discomfort in his neck, back, hip and left knee.
g.The Plaintiff suffered from a range of other conditions pre-accident including hypertension, hyperlipidaemia, carotid disease, stroke and ischemic attacks, diabetes, gastro oesophageal reflux disease, rectal polyps, excessive alcohol intake, dermatitis, and affective psychosis. In addition, he was obese pre-accident and he remains obese.
h.The medical evidence does not enable me to reach a conclusion as to the likely future course of those pre-existing degenerative changes or of the other pre-accident conditions suffered by the Plaintiff.
i.Those pre-existing conditions were, however, of themselves, a source of some restriction on the Plaintiff’s freedom of movement, and his capacity to fully enjoy life independently of the effects of the injuries suffered in the accident. Despite that, I accept that his present modest need for domestic assistance (one hour per fortnight) does result from the injuries he suffered in the accident and is likely to continue.
j.Improvement in the symptoms attributable to the accident (at the time of hearing) is unlikely to occur. Deterioration in those symptoms is also unlikely.
Against that background, my assessment of damages is as follows:
General damages  $35,000.00
Interest on general damages (say $20,000.00 past)   $3,200.00
Past out of pocket expenses (as claimed)   $2,500.00
Future out of pockets (as claimed)   $5,978.00
Past Griffiths v Kerkemeyer component (since accident – say 4 years
at $17.50 per week)   $3,619.00
Future Griffiths v Kerkemeyer component (at $17.50 per week
for say 10 years adjusted to take into account the vicissitudes of life)          $8,000.00
TOTAL:  $58,297.00
I give judgment for the Plaintiff against the second Defendant in an amount of $58,297.00.
I have not heard argument about costs. I make the following orders:
a.the second Defendant is to pay the Plaintiff’s costs;
b.that order does not take effect if either party contacts my Associate within 14 days to re-list the matter to seek some other costs order.
I certify that the preceding seventy-nine [79] paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Angus Brown
Date: 1 May 2019

[2019] ACTMC 15

1 May 2019