Bekdache v Chen

[2020] NSWDC 830

District Court

New South Wales

Medium Neutral Citation:

Bekdache v Chen [2020] NSWDC 830

Hearing dates:

23, 24, 25, 26 June; 2, 3, 7, 8 July 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

Judgment for the plaintiff in the sum of $31,899.62.

Catchwords:

TORTS – motor vehicle accident – contributory negligence – just and equitable apportionment – damages

Legislation Cited:

Civil Liability Act 2002, s 3B, s 5B, s 5C, s 5D, s 5R, s 15B

Law Reform (Miscellaneous Provisions) Act 1965, s 9

Motor Accidents Compensation Act 1999, s 138

Road Rules 2014 (NSW), r 287

Cases Cited:

Anikin v Sierra (2004) 211 ALR 621; [2004] HCA 64

Blacktown City Council v Hocking [2008] NSWCA 144

Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183

Grills v Leighton Contractors Pty Limited [2015] NSWCA 72

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Masters Bht Masters v South West Sydney Area Health Service [2013] NSWSC 228

Nominal Defendant v Rooskov [2012] NSWCA 43

Pennington v Norris (1956) 96 CLR 10

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Verryt v Schoupp [2015] NSWCA 128

Wallace v Kam [2013] HCA 19

Warren v Gittoes [2009] NSWCA 24

Texts Cited:

Australian Road Rules, r 287

Category:

Principal judgment

Parties:

Mouna Bekdache (plaintiff)
Cindy Wing-see Chen (defendant)

Representation:

Counsel:
Mr P J Macarounas (plaintiff)
Mr J Catsanos SC (defendant)

Solicitors:
AJB Stevens Lawyers (plaintiff)
Sparke Helmore (defendant)

File Number(s):

2018/78011

Publication restriction:

None

Judgment

Introduction

1. Mouna Bekdache was injured when a car driven by Cindy Chen ran over her right foot. She alleges that she has suffered neck and back pain, as well as pain in her right foot, daily since the incident, and knee pain from about a year after the incident, all as a result of the incident. She sues for damages.

Issues

2. Ms Chen has admitted a breach of duty of care, but alleges contributory negligence. The damages issues concern whether Ms Bekdache has suffered any and what amount of past or future lost earning capacity, domestic care damages, medical expenses and damages under s 15B of the Civil Liability Act 2002 for care for her children. As Ms Bekdache was assessed as having less than 10% whole person impairment, there is no claim for non-economic loss.

The incident

3. The incident was recorded [1] by the security cameras of a neighbouring residence.

   1. Exhibits B and S.

4. On 18 June 2016 Ms Chen was driving home along an unmarked street in Punchbowl. She lived in the street. Ms Bekdache was driving in the opposite direction on the same street. At a location in front of Ms Chen’s next door neighbour’s property, there were cars parked on each side of the roadway leaving a narrow passage, barely sufficient for two cars to pass.

5. Ms Chen’s car reached the parked vehicles about 10 metres before Ms Bekdache’s car. Ms Chen brought her car to a stop as she saw Ms Bekdache’s car, stopping a little more than halfway along the first car parked to her left. Ms Bekdache slowed her vehicle but continued to the front of the parked car to her left, and collided with it. Her car came to a halt with the front of her car adjacent to the driver’s external rear view mirror on Ms Chen’s vehicle and wholly adjacent to the parked car to her left with which she had just collided. Ms Bekdache reversed slightly, about 20 cm. Ms Chen then moved her vehicle forward in an attempt to proceed, was concerned her car could not fit through the narrow space before her, and again stopped her vehicle. At this stage, all four cars were almost aligned across the road, the front of Ms Bekdache’s car approximately in line with the rear wheel of Ms Chen’s car.

6. Ms Bekdache regarded Ms Chen as responsible for her collision with the parked vehicle. She was angry. She opened her car door, alighted from her vehicle and approached Ms Chen’s driver’s side window. She then yelled at Ms Chen, swearing at her, gesticulated, made demands of Ms Chen, and reached into Ms Chen’s vehicle in an attempt to prevent her driving away. Some witnesses were nearby, including Arthur Attie, the owner of the vehicle with which Ms Bekdache collided.

7. Ms Chen was scared and intimidated by this confrontation. She decided to move her car and proceeded forward. Ms Bekdache then appeared to turn so as to put her left hand on the driver’s window ledge of Ms Chen’s car, facing directly into Ms Chen’s car, and move in the direction that Ms Chen was moving, for about a metre or so. Ms Bekdache’s right foot then went under Ms Chen’s vehicle’s rear driver’s side tyre. Ms Bekdache fell to the ground. Ms Chen did not proceed to enter her driveway. She recognised something had happened, or “felt something”, [2] and drove around the block to return to the scene.

   2. T336/39-50.

8. Meanwhile, Mr Attie drove Ms Bekdache’s car to the side of the roadway, and one of the witnesses picked up Ms Bekdache and put her in the front passenger seat of her car. Ms Chen returned and she discovered the injury to Ms Bekdache’s foot. Ms Chen wanted to call the police. Ms Bekdache refused and told her to leave. Ms Bekdache at the time was not a licensed driver, having a suspended licence. [3] These matters were undisputed.

   3. T195/45-T196/2.

9. On Ms Bekdache’s account, she was, immediately before confronting Ms Chen, angry, shocked and anxious about what had occurred. [4] She formed the view that Ms Chen had caused her collision with the parked car because, she said, “[I]f she had pulled over to the left side where she had room to I wouldn’t have collided with the other car”. [5] When she reached the driver’s side window of Ms Chen’s car, she yelled at Ms Chen, through the open window, [6] repeatedly demanding, “Give me your fucking licence”. [7] Ms Chen did not provide it to her. Ms Bekdache accepted her behaviour was likely to be offensive [8] and intimidating [9] to Ms Chen, likely to make her scared [10] or apprehensive.

   4. T58/39.

   5. T60/41.

   6. T200/30.

   7. T59/23; T202/10-16.

   8. T202/30-36.

   9. T202/40.

   10. T203/33.

10. Ms Chen, on the other hand, said she saw Ms Bekdache’s car approaching at speed before she stopped. After the cars stopped, as Ms Bekdache approached, she opened her window at Ms Bekdache’s gesture [11] and Ms Bekdache said, “Come out of the car this, this is your fault. You’re not driving in your [lane]. Come out the fucking car, get out.” [12]

    11. T261/44-T262/29.

    12. T264/20.

11. When Ms Chen refused her demands, Ms Bekdache reached into Ms Chen’s car. Ms Bekdache says she was intending to remove Ms Chen’s car keys [13] from the ignition to prevent Ms Chen from departing whereas Ms Chen thought Ms Bekdache was attempting to take hold of the steering wheel; Ms Chen’s keys were in her bag as her car had keyless ignition. In either case, Ms Bekdache was attempting to take control of Ms Chen’s car. Ms Bekdache did not want Ms Chen to leave, she said, and was fearful that she would. [14] Ms Bekdache accepted that she had no right to take control of the car [15] or interfere with Ms Chen’s property. [16]

    13. T204/45; T205/33.

    14. T205/25-29.

    15. T203/48.

    16. T204/7.

12. Ms Chen’s account was that as Ms Bekdache grabbed the steering wheel, Ms Chen, fearful [17] and intimidated by Ms Bekdache’s loud and aggressive language and conduct, [18] and scared of what might happen, [19] put her car into drive and commenced to move forward and drive away.

    17. T264/41-46.

    18. T264/23-33.

    19. T265/4.

13. Ms Chen said she:

“was really scared at this point. Because I felt like I wasn’t sure at that point if she was trying to go for my car or she was just trying to go at me,”

and

“I just wanted to get out of the situation”. [20]

20. T265/4-8.

14. Ms Bekdache said that as Ms Chen’s car moved away she took a step backwards towards her own vehicle. She said she “moved as far back” as she possibly could, [21] when her foot was run over. She fell to the ground. Ms Bekdache did not accept that she could have avoided being run over. [22] She excused her conduct as “[i]t’s something that happened in the heat of the moment”. [23]

    21. T212/23.

    22. T211/12.

    23. T211/36-38.

15. Ms Bekdache gave evidence that when Ms Chen returned to the scene after the injury, Ms Bekdache told her to “fuck off” or “piss off”. [24] Ms Bekdache’s grandmother then drove Ms Bekdache from the scene and she was subsequently taken to hospital.

    24. T215/30-43; T216/48-T217/4.

16. Ms Chen said that as she drove from the scene, she felt something and saw in her rear view mirror that “something happened” so she went around the block and returned to the scene about minute or two later. [25] She spoke to Ms Bekdache saying, “I’m going to call the police because we can’t resolve this matter, you think it’s my fault and I think it’s your fault”. [26] Ms Bekdache said, “No, leave, fuck off”, [27] repeatedly, then Ms Chen left.

    25. T267/30.

    26. T268/29.

    27. T268/32.

17. Ms Chen’s evidence was given in a natural and quite straightforward manner. She gave more detail in her evidence, including the slight reversal of Ms Bekdache’s car, the second forward movement of her own car, [28] the circumstance that her window was up and she put it down at Ms Bekdache’s insistence. [29] Whether her window was initially open or closed was disputed and was not something able to be resolved from the recording.

    28. T261/7-20; T275/36-40; T277/46-T278/2.

    29. T261/44-T262/29.

18. Ms Bekdache was unemotional in the giving of her evidence. She made some concessions about her conduct, but was reluctant to accept that her behaviour was aggressive, [30] notwithstanding that her conduct involved angrily yelling and swearing at a seated stationary driver in the middle of the road whilst she stood adjacent to the driver’s side window and was reaching inside. Her unwillingness even at trial to accept blame for the initial collision, but attribute fault to Ms Chen, indicated a lack of balance in her testimony.

    30. T199/29-39; T201/42-46.

19. The circumstance of the keyless ignition weakens Ms Bekdache’s assertion that she sought to take the keys from the ignition, since she would not likely have reached for keys she could not see. There were also matters of concern in Ms Bekdache’s evidence on her damages, to which I will come.

20. For these reasons, in the event of a conflict I preferred the evidence of Ms Chen, although there was little of significance in their different accounts. Whether Ms Bekdache demanded Ms Chen give her licence to Ms Bekdache and attempted to forcibly take her car keys without consent, or demanded that Ms Chen get out of the car and attempted to take control of the steering wheel of the vehicle, is not of great significance. Perhaps both occurred. In either case, Ms Bekdache’s conduct was seriously inappropriate. Ms Bekdache ultimately accepted in closing submissions that she was largely responsible for the collision with the parked vehicle, thus accepting that her opinion that Ms Chen was to blame was misplaced. Even if Ms Chen was properly to be regarded as “involved” in Ms Bekdache’s collision with the parked car, and therefore may have been obliged to provide her contact particulars, that neither required her to hand over her licence or get out of her car, nor that she do so in the middle of the roadway, and did not justify the aggressive manner of Ms Bekdache’s demands.

21. Ms Bekdache’s assertion that she took a step back from Ms Chen’s car as it began to move and that she moved as far back as possible is doubtful. Two vehicles passed through the gap in the same direction Ms Chen had driven in the immediate period after Ms Chen’s departure, [31] so there was some space between the vehicles. Ms Chen gave unchallenged evidence, elicited in cross-examination, by indication of plaintiff’s counsel’s arms, of 90 cm of space between the bodies of the vehicles. [32] Ms Bekdache was able to open her door and get out of her car without difficulty and without her car door contacting Ms Chen’s vehicle. In Ms Bekdache’s evidence, she estimated that there was 20 cm either side of her to each side mirror as she stood between the cars, [33] a distance accepted to be approximately the same as Ms Chen’s estimate. The recording of the incident does not indicate that Ms Bekdache moved back away from Ms Chen’s car, but rather that she moved to her right, in the direction that Ms Chen’s car moved. Whilst video evidence comprises a number of photographs of what occurred, played after one another, and thus perhaps require care in reviewing it,[34] still the video evidence was not disputed and was, in my view, incontrovertible. It is clear that Ms Bekdache did not confine her movement to moving back from Ms Chen’s car and I do not accept her evidence that she did so. Had she “moved as far back as I possibly could” [35] and with the back of her body against her car [36] , as she asserted, she would have been well out of the way. The submission that the “feet … stick out from a person’s body”[37] may be correct in comparison to her ankles, but is of no moment when there was sufficient space between the two cars for her to stand in safety. The injury to her right foot alone reflects that she did not move back away from and facing Ms Chen’s car, but she moved to her right and backwards in the direction Ms Chen was travelling and thus her right side was closest to Ms Chen’s vehicle.

    31. Exhibits B and S.

    32. T300/20-T301/1.

    33. T242/19-28.

    34. Masters Bht Masters v South West Sydney Area Health Service [2013] NSWSC 228 at [22] citing Blacktown City Council v Hocking [2008] NSWCA 144 at 170-172; Warren v Gittoes [2009] NSWCA 24 and Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326.

    35. T212/20-23.

    36. T241/22-40.

    37. Plaintiff’s written submissions, 2/7/20, at [41].

Contributory negligence

22. As indicated, Ms Chen admitted negligence. That negligence appears to be driving off while Ms Bekdache was in close proximity and acting impetuously.

23. Ms Chen’s defence alleges that Ms Bekdache was contributory negligent in:

1. behaving in a manner that would foreseeably cause a reasonable person to attempt to flee the situation;

2. attempting to gain control of Ms Chen’s vehicle whilst the vehicle was still in use;

3. placing her foot directly in the path of Ms Chen’s vehicle;

4. failing to move out of the way of Ms Chen’s vehicle;

5. remaining on the roadway as a pedestrian; and

6. failing to exercise sufficient care for her own safety.

24. Section 138 of the Motor Accidents Compensation Act 1999 provides that, subject to irrelevant exceptions, “common law and enacted law as to contributory negligence” apply to Ms Bekdache’s damages. Section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 relevantly provides that if Ms Bekdache “suffers damage as the result partly of [her] failure to take reasonable care”, her damages are “reduced to such extent as the court thinks just and equitable” having regard to her responsibility for the damage. The High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [10] determined:

“10. The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

25. Section 3B(2) of the Civil Liability Act 2002 provides that Divisions 1 to 4 and 8 of Part 1A (Negligence) of the Civil Liability Act 2002 also apply to awards under the Motor Accidents Compensation Act 1999. Division 8 is concerned with contributory negligence. Section 5R of that Division renders the principles governing negligence applicable to contributory negligence. This provision is effective to apply ss 5B and 5C of the Civil Liability Act to contributory negligence. [38] Whilst the general principles in these provisions are not conceptually straightforward in their application to contributory negligence, they are nevertheless to be applied in determining whether a person has taken reasonable care for their own safety. [39] Once contributory negligence is found, damages are reduced by the apportionment process indicated above. [40]

    38. Grills v Leighton Contractors Pty Limited [2015] NSWCA 72 at [161].

    39. Grills at [162].

    40. Grills at [162], s 138(3) Motor Accidents Compensation Act 1999.

26. The application of the causation principles in s 5D of the Civil Liability Act 2002 to contributory negligence is not so uncontroversial, perhaps because of the uncertainty of whether “negligence” in s 5R is intended to embrace causation,[41] and also perhaps because any distinction between the statutory test in s 5D and the “common sense” common law test of causation in March v E & M H Stramare Pty Ltd,[42] might be illusory. [43]

    41. Nominal Defendant v Rooskov [2012] NSWCA 43 at [142]-[144], Verryt v Schoupp [2015] NSWCA 128 at [27], Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [31].

    42. (1991) 171 CLR 506; [1991] HCA 12.

    43. Cf Wallace v Kam [2013] HCA 19 at [11].

27. The relevant questions are:

1. Did Ms Bekdache fail to exercise reasonable care for her own safety?

2. How should Ms Bekdache’s damages be apportioned, bearing in mind what is just and equitable, the causal potency of Ms Chen’s negligence and Ms Bekdache’s contributory negligence, and the gravity of the negligence or degree of departure from reasonable conduct of each party?

28. In submissions, the principal items of conduct alleged to constitute Ms Bekdache’s contributory negligence were:

1. her aggressive words and conduct when she approached Ms Chen, yelling, swearing, angry, making unjustified demands, and attempting to take control of Ms Chen’s vehicle by reaching in towards the steering wheel as Ms Bekdache stood adjacent to the driver’s side window whilst Ms Chen was seated in the driver’s seat; and

2. her failure to move out of the way of Ms Chen’s vehicle as it commenced to move.

29. Ms Bekdache ultimately accepted that she had no right to touch anything in Ms Chen’s car, [44] that her language was offensive and intimidating, [45] that it might be a “bit aggressive”, and could cause someone to be scared. [46] Further, that Ms Chen had, to that point, done nothing wrong emphasises the unreasonableness of Ms Bekdache’s conduct. Ms Bekdache’s aggressive conduct increased the risk that Ms Chen might drive away whilst Ms Bekdache was beside the car, and it follows that it was not taking reasonable steps to protect against that risk. Ms Bekdache’s conduct must be viewed from what she knew or ought to have known at the time,[47] but if she was reaching into the vehicle to stop Ms Chen’s car from departing, she knew or ought to have known that the car might commence to depart. A reasonable person in her position would recognise that such conduct could either escalate the dispute or cause Ms Chen to flee. Ms Bekdache submitted that she put her hand into the vehicle, but did not interfere with it. That she did not achieve her objective of taking control of the steering or taking the keys does not diminish the inflammatory nature of her conduct.

    44. T205/40-49.

    45. T202/30-40.

    46. T203/4-19 cf T199/29-39, T201/42-46.

    47. Civil Liability Act 2002, ss 5B, 5R.

29. Ms Bekdache submitted that any of her negligent conduct prior to Ms Chen moving her car is irrelevant. I do not accept this, at least when that conduct is a cause of Ms Chen’s car moving and thus contributes to the injury.

30. Ms Chen gave evidence that she was scared and felt a need to protect her own safety by departing. Her evidence reflected that in the moment of her departure, her concern was for her own safety. In the circumstances, I do not see this as an aggravating component of her admitted negligence.

31. Ms Bekdache challenged this evidence on the basis of a statement Ms Chen made in a police interview some two months after the incident. Ms Bekdache submitted that Ms Chen drove off not because she was scared, but to park her car. An agreed transcript of interview records Ms Chen saying:

“And she tried to get into my car and then, um, I went to drive off to park my car, so I can talk to her. Because all the, all the, um, there was no parking on the street, at all.” [48]

“…she was just like abusing me, telling me to come out. But I was scared…So I didn’t.” [49]

“[When she tried to grab the steering wheel] I felt very scared and I felt like my safety was being…compromised”. [50]

“I went to go try find parking to sort it out.” [51]

“she’s yelling a lot…I just, I felt very scared.” [52]

“And she was just trying to get into my car and then I got really scared as well. She comes and reaches in the steering wheel. And then…I was, I’m going to park the car and come out and talk to her, but maybe further away.” [53]

48. Exhibit H, p 4 at 04:04.

49. Exhibit H, p 4 at 04:40-04:49.

50. Exhibit H, p 5 at 05:00.

51. Exhibit H, p 5 at 05:26.

52. Exhibit H, p 12 at 11:09.

53. Exhibit H, p 13 at 12:41.

33. Ms Chen gave evidence that she had spoken to the police on the telephone previously and immediately prior to the interview where she told them about being scared.

34. Ms Chen’s home was the next house in the street, only a few metres from the location of the incident. If she was simply seeking a place to park, her house would have been the obvious place. That she did not want to identify her place of residence by parking there might support her evidence about being scared.

35. I accept Ms Chen’s evidence that she commenced to drive from the scene because she was scared and intimidated by Ms Bekdache’s language and conduct. Thus, I accept that Ms Chen’s driving away was partly caused by Ms Bekdache’s conduct and that this conduct constituted contributory negligence. But for Ms Bekdache’s behaviour, Ms Chen would not have driven away, and thus factual causation under s 5D of the Civil Liability Act 2002 is established.

36. Ms Bekdache also submitted that whilst not “ideal”, her conduct in confronting Ms Chen was “within the realms of what is a typical reaction to an incident” and a “relatively normal response”. [54] I do not regard this submission as having any merit, nor do I regard a demand that Ms Chen get out of her car, or even hand over her licence, as a proper request for her particulars. Further, any obligation on Ms Chen to give her particulars to Ms Bekdache was within 24 hours,[55] not immediately in the middle of the roadway by handing over her licence.

    54. Plaintiff’s written submissions, 2/7/20, at [61]-[62].

    55. Rule 287, Road Rules 2014 (NSW). See also r 287, Australian Road Rules.

37. Accordingly, I find that Ms Bekdache’s conduct in angrily confronting Ms Chen on the street whilst Ms Chen sat in her car, and reaching into her car did in the circumstances constitute contributory negligence.

38. The other aspect of Ms Bekdache’s alleged contributory negligence was failing to move away when Ms Chen’s car commenced to move, but instead moving in the direction of Ms Chen’s travel. This movement was conceded to increase the risk of harm. It put her in a position of reduced safety. The movement of Ms Chen’s car was both anticipated and immediately recognised by Ms Bekdache, as she moved with the car.

39. Ms Bekdache submitted that there was less room in the direction Ms Chen was travelling. But if this was so, it would not be a reasonable course for Ms Bekdache to move in this direction for safety when she could simply move back towards her car, away from Ms Chen’s car, where she originally stood, where there was sufficient room. The footage of Ms Bekdache placing her hands on the driver’s window ledge and moving alongside Ms Chen’s car as it moved forward indicated the likelihood that she remained motivated by her admitted desire to ensure that Ms Chen did not depart, and was not in the process of moving away.

40. Ms Bekdache submitted that space must have been tight for Ms Chen to stop her vehicle before Ms Bekdache confronted her, and whatever limited space there was, it was lessened by Ms Bekdache’s presence. These propositions must be accepted, for Ms Chen gave evidence that she stopped because of a concern that she could not fit past the parked vehicle. And yet there was sufficient space for Ms Bekdache to stand safely between the cars, because Ms Bekdache opened her door and alighted from her car without contacting Ms Chen’s vehicle, because subsequently cars proceeded through that gap left after Ms Chen had departed and because of the uncontested evidence of a gap of about 90 cm between the vehicles. Ms Bekdache was not a large lady.

41. Ms Bekdache submitted that the space was narrowed because Ms Chen, as a result of an imminent veering to the right of the roadway, turned her car to the right having earlier turned to the left. Ms Chen accepted that she did turn to the right to avoid the parked car. [56] However, that does not establish that her car was travelling towards Ms Bekdache, and thus was narrowing the space with Ms Bekdache’s car, only that it was likely not increasing that space. The point at which the roadway began to turn to the right was not clearly or satisfactorily established, nor was I satisfied that the space narrowed as Ms Chen proceeded along the roadway. However, as indicated above, had the space become more confined as Ms Bekdache asserts, that tends only to increase the unreasonableness of Ms Bekdache moving into a more confined area.

    56. T340/41; T341/7-12.

42. Ms Bekdache’s failure to step away from Ms Chen’s car was a failure to take an action that was obvious to protect herself and was a significant breach of her duty to keep herself safe, and thus also constitutes contributory negligence.

43. This contributory negligence of Ms Bekdache must be compared with Ms Chen’s negligence. Ms Chen’s negligence was admitted. It was not obvious. But, in my view, the admission is properly made, not because Ms Bekdache was proximate to Ms Chen’s car, for adults are commonly in proximity to a vehicle (e.g. in carparks) without rendering movement of the vehicle negligent, but because, in this case, where Ms Bekdache was emotional and acting in a somewhat irrational way in trying to take control of the vehicle, a reasonable person in Ms Chen’s position would pay particular regard to where Ms Bekdache was standing since she could not be assumed to act rationally. Ms Chen did not pay this particular care, but was concerned only for her safety, as she said. This sole concern for her own safety, whilst understandable because of the fear that she felt, did not meet the standard of care of a reasonable person, at least in the circumstances where there is an admission of negligence.

44. Ms Bekdache also submitted that Ms Chen gave no warning that she was about to drive off. But a warning was otiose. The likelihood of it was in the mind of Ms Bekdache and was what motivated her conduct. Ms Bekdache saw, heard and felt Ms Chen commence to move and yet did not move to a position of safety.

45. Ms Bekdache also submitted that Ms Chen could have:

1. closed her window;

2. called the police;

3. called out to the neighbours, who were within a few metres of the incident; or

4. driven off a short distance and taken care not to hit Ms Bekdache when doing so. [57]

   57. Plaintiff’s written submissions, 2/7/20, at [64].

46. None of these matters would have averted the immediate danger to Ms Chen. Closing the window may itself have caused harm to Ms Bekdache, calling the police was not a solution to the immediate problem, calling the neighbour is similar with an uncertain result, and driving off a short distance is what she did. All of those possible actions only arise because of Ms Bekdache’s conduct and all may have inflamed the situation.

47. Ms Bekdache submitted “[a] reasonable person simply would never drive off in circumstances where there is a metre or less between her vehicle and the next”[58] and that Ms Chen “should never have moved her vehicle”. [59] I do not accept this. The movement of cars in circumstances where other vehicles are closely proximate happens daily in car parks, often with adults nearby. It would be different if the plaintiff were a child. As I have found, Ms Chen’s negligence appeared to be driving forward without particular care for Ms Bekdache’s position when she was acting somewhat irrationally.

    58. Plaintiff’s written submissions, 2/7/20, at [65].

    59. Plaintiff’s written submissions, 2/7/20, at [22].

The pleading point

48. In closing submissions, Ms Bekdache, by her counsel, asserted that the comparison of Ms Chen’s negligence with any contributory negligence of Ms Bekdache was not to be determined by, or solely by, findings based on the evidence. Rather, Ms Chen had made admissions regarding her conduct in the pleadings, and the comparison should be with her admitted conduct.

49. The statement of claim first asserts the negligence in paragraph 6, and then pleads in paragraphs 9 and 10:

“9 The risk of harm that the Defendant exposed the Plaintiff to was the risk of injury resulting from the negligent driving of the Defendant causing injuries to the Plaintiff as a pedestrian.

10 As a result of the negligence of the Defendant, the Plaintiff suffered injury and damage.

11 Further particulars of the Plaintiff’s injuries, loss and damage are set out in the Statement of Particulars.”

There is then a heading “PARTICULARS OF NEGLIGENCE” below which paragraphs 12 and 13 state:

“12 The Defendant was guilty of negligence in that she:

a. Failed to keep any or a proper lookout.

b. Failed to exercise due and proper care.

c. Failed to drive in a safe manner.

d. Failed to keep her motor vehicle under any or a proper control to avoid colliding with the Plaintiff.

e. Failed to observe and/or pay attention to the location of the Plaintiff.

f. Failed to brake, stop, swerve, steer and/or otherwise control or manoeuvre the vehicle so as to avoid colliding with the Plaintiff.

g. Failed to give a warning to the Plaintiff so that she might have avoided the collision.

h. Drove her motor vehicle in a dangerous and reckless manner having no regard for the Plaintiff’s safety.

i. Drove off in the circumstances and had no regard for the safety of the Plaintiff.

13 By reason of the negligence abovementioned, the Plaintiff was injured and suffered and will continue to suffer loss and damage.”

50. Thereafter, “PARTICULARS OF INJURY, LOSS AND DAMAGES” are provided in numbered paragraphs of the statement of claim from 14 to 26.

51. The defence stated:

“1. The Defendant admits paragraphs 1, 2, 4, 5, 7, 8, 9 and 12.

2. As to paragraphs 3 and 6, the Defendant admits that the Plaintiff was a pedestrian, having exited the vehicle she driving following an earlier accident, but says that the Plaintiff approached the Defendant’s vehicle, spoke to the Defendant in a threatening manner, and attempted to grab the Defendant’s steering wheel through her vehicle’s window. It was the Plaintiff’s threatening behaviour that caused the Defendant to drive from the scene.

3. As to paragraphs 10, 11 and 13 – 23, the Defendant does not admit that the Plaintiff suffered injuries, loss or damage to the extent pleaded on at all.”

52. Ms Bekdache submitted that each of the items of paragraph 12 was admitted by Ms Chen, and, in particular, that she could not contest that she drove in a dangerous and reckless manner having no regard for the plaintiff’s safety.

53. The merit of this argument lay largely in the numbering of the statement of claim. As a defendant does not ordinarily plead to particulars, an admission of a paragraph is not conventionally an admission of the particulars of that paragraph. But the numbering might indicate that the items in paragraph 12 were more than particulars.

54. On the other hand, the context of paragraph 12 - the prior allegations of negligence in the statement of claim, the content of paragraph 11 and the heading before paragraph 12 - as well as the textual considerations – the nature of the matters alleged in the various subparagraphs to paragraph 12 – both suggest that the subparagraphs were no more than particulars of negligence.

55. Further, neither in opening nor at any stage until final submissions did Ms Bekdache raise this point, a fundamental matter on the only liability issue in the proceedings. Both the plaintiff and defendant extensively were cross-examined on matters relevant to their respective negligence and responsibility for the damage.

56. Also, the assertion of contributory negligence in paragraph 2 of the defence, which refers to Ms Bekdache’s threatening behaviour causing Ms Chen to drive, does not sit comfortably with an admission that Ms Chen drove in a reckless and dangerous manner.

57. In these circumstances, I was inclined to hold that the proper construction of the defence was of an admission of negligence but not of the various subparagraphs of paragraph 12 of the statement of claim. But Ms Chen, through her counsel, sought leave to amend against the alternative possibility of a wider admission. Ms Bekdache initially opposed leave on the basis that more would have been asked of Ms Chen if the defence admission had been more narrowly framed. I indicated an inclination to grant leave on condition that Ms Chen be made available for further cross-examination. On that indication, Ms Bekdache abandoned any need for Ms Chen to be recalled and expressly declined to make further submissions against the amendment. The amendment was granted and the pleading point resolved.

Just and equitable reduction

58. In comparing the negligence of Ms Chen with Ms Bekdache’s contributory negligence, I take into account that Ms Chen had the greater capacity to inflict damage by the driving of her car. [60] But in my view, the damage has largely been caused by Ms Bekdache. Her gravely inappropriate conduct, in circumstances where Ms Chen bore no responsibility for the preceding collision, put herself in a position of danger and caused Ms Chen reasonably to be scared, and to drive away. This conduct of Ms Bekdache enlivened the risk and constituted a significant departure from reasonable care. And when Ms Chen commenced to drive off, rather than move to a position of safety, Ms Bekdache moved along with the car, increasing the danger. There was no evidence of erratic driving by Ms Chen and she initially moved straight ahead as she departed, as Ms Bekdache conceded. [61] Any turn to the right (as distinct from correcting an earlier turn to the left) seemed not to occur until after Ms Chen had passed Ms Bekdache’s car and thus was not causative of the injury.

    60. But cf Anikin v Sierra (2004) 211 ALR 621; [2004] HCA 64 at [51]-[55], Pennington v Norris (1956) 96 CLR 10 at 16-17.

    61. Plaintiff’s written submissions, 2/7/20, at [41].

59. Ms Bekdache submitted that I should find 10% contributory negligence. I do not think this is close to a fair and equitable apportionment, even if I were to ignore Ms Bekdache’s conduct in aggressively approaching and reaching into Ms Chen’s vehicle, which I do not.

60. Ms Chen asserts then Ms Bekdache’s conduct warrants a finding of 75% contributory negligence. Although Ms Bekdache was a pedestrian at the time, she is an adult. Her conduct was seriously unreasonable and it caused Ms Chen to commence to drive, as Ms Bekdache had supposed she would. Aware of Ms Chen commencing to drive away, Ms Bekdache then failed to move away sufficiently from Ms Chen’s car, but instead moved alongside it. This indicates a substantial degree of responsibility for the damage. I find that Ms Bekdache should bear two-thirds of the damage by reason of her contributory negligence.

Damages

Overview of injuries and disabilities

61. After the incident, Ms Bekdache was taken to hospital. Although her claim form referred to the involvement of an ambulance, she was not so transported. [62] She remained in hospital from 18 June 2016 until discharged on 24 June 2016.

    62. T65/9-24; T215/9-15; T607/40-48; Exhibit J, p 14.5 of Plaintiff’s Tender Bundle (PTB).

62. Ms Bekdache suffered a comminuted displaced fracture to the navicular bone, with some bone fragments, and extensive soft tissue swelling. This right foot injury caused her significant pain after the incident. Dr George Konidaris operated to repair the fracture, by internal reduction and external fixation. She was given and used crutches for two months, and subsequently wore a moonboot for three weeks after the removal of the external fixation, as part of her rehabilitation.

63. Ms Bekdache gave evidence of back and neck pain whilst she was in hospital. Her accident claim form signed by her on 29 June 2016 claimed:

“Closed head injury

Injury to the neck

Injury to the middle back

Injury to the lower back

Injury to the right foot

Fracture to the right foot

Psychological injury”. [63]

A diagram for marking the affected areas of the body was left blank, and the accompanying medical report made no mention of neck or back pain.

63. Exhibit Q, p 8.5 of PTB.

64. There are some details in the claim form that indicate that it was prepared with an absence of care or may contain inaccuracies. The street of the accident was repeatedly incorrect, [64] there was no drawing of the positions of the vehicles, [65] the description of the accident omits any mention of vehicles stopping, and other relevant details, [66] it refers to the presence of police [67] and ambulance [68] at the scene when neither attended, it refers to no witnesses, not even to Ms Bekdache’s grandmother who was in her car, [69] it gave no hospital discharge date, [70] and the medical report did not reflect the injuries claimed. [71]

    64. Exhibit Q, pp 4, 7 of PTB.

    65. Exhibit Q, p 6 of PTB.

    66. Exhibit Q, p 7 of PTB.

    67. Exhibit Q, p 7 of PTB.

    68. Exhibit Q, p 8 of PTB.

    69. Exhibit Q, p 7 of PTB.

    70. Exhibit Q, p 8 of PTB.

    71. Exhibit Q, p 11 of PTB.

65. Ms Bekdache gave evidence that she started having lower back pain and neck pain [72] when she commenced to walk a few months after the accident, [73] and some months after her claim form referring to this pain was prepared. [74] She also said that her back and neck pain became significant issues whilst she was in hospital. [75] She said her neck pain and her back pain “comes and goes”. [76] She noticed her left knee pain in about late 2017 or early 2018. [77]

    72. T72/4.

    73. T65/49-T66/4; T71/34-45.

    74. Exhibit Q, p 8 of PTB.

    75. T102/20-25.

    76. T72/12-16.

    77. T72/24.

66. Ms Bekdache indicated that she was not able to drive herself in the first nine months after her foot was injured. [78] Ms Bekdache did however fail driving tests within five months of the injury on 31 October and 7 November 2016 before passing a driving test on 14 November 2016. [79]

    78. T75/40-T76/2 (see also T75/11).

    79. Exhibit 4.

67. The medical certificate accompanying the motor accident claim form referred to the foot injury and to “PTSD”. The foundation for the PTSD diagnosis was not revealed in the certificate. Ms Bekdache did not particularise or claim any psychological damage, and no psychiatric or psychologist’s reports were tendered.

68. Ms Bekdache has had problems with polyarthralgia in 2019, manifesting itself in swollen fingers and ankle. [80] She has recurring abdominal pain, [81] an ovarian cyst, [82] pelvic pain [83] and has twice, including before the accident, attempted suicide, [84] each of which has involved repeated admissions to Bankstown Hospital, and has left her with lethargy and malaise. [85]

    80. Exhibit C; Exhibit 2, pp 354-355.

    81. Exhibit 2, pp 12, 64, 187, 280, 290, 397.

    82. Exhibit C; Exhibit 2, pp 42-44.

    83. Exhibit 2, pp 320, 338.

    84. Exhibit C; T51/46-T52/31; Exhibit 2, p 204.

    85. Exhibit 2, p 5.4.

64. On the other hand, Ms Bekdache drives to TAFE twice a week where she is doing a beauty therapist’s course. [86] This involves, for the days she attends, several hours of lectures and practical learning each morning and afternoon.

    86. T175/31-39.

Domestic arrangements

70. Ms Bekdache is 28-years-old. She has two children.

71. After leaving hospital, Ms Bekdache moved from her flat where she lived with her two daughters to reside with her parents. For a period of three months after the injury, Ms Bekdache used a shower chair every second day to shower, assisted by her mother and her best friend. [87] She said she was assisted daily for this period of about three months. [88]

    87. Perhaps “Maesa”, see T66/35-T67/2, and apparently not her cousin, Rana. Cf T358/45-T359/6.

    88. T66/30-T67/17.

72. She was living with her parents. [89] Ms Bekdache said that her mother and her ex-partner [90] (the children’s father) looked after her children [91] during this period, looking after the children “nearly every day” doing “everything that was needed”. [92] Her cousin, Rana Al Charif, was also said to visit three days a week and was said to help her with her children and housework. [93]

    89. T67/29-33.

    90. Bilal, T69/43.

    91. T68/29-T69/10.

    92. T68/34, 40.

    93. T72/49; T73/16-34.

73. In November [94] or December [95] 2016 Ms Bekdache remarried. After the remarriage, Ms Bekdache lived with her husband, Hussein Dabaja, and two daughters in a two-bedroom granny flat in Cullens Rd, Punchbowl for six weeks from late 2016. She separated from her husband in January 2017 and lived in Lumeah Ave, Punchbowl in a granny flat with her two daughters for six months. She said her cousin gave her assistance three to four days per week, about one hour per day, cooking, vacuuming and cleaning, [96] although she also said three of her friends, “Aesha, Minelle and Houda”, [97] did housework, vacuuming, mopping, and perhaps cooking every day for perhaps 30 minutes total. [98]

    94. T69/13.

    95. Exhibit C.

    96. T73/16-34.

    97. T73/50.

    98. T73/9-11; T73/46-50; T74/26-44.

74. Ms Bekdache said she was able to prepare some simple meals like noodles or sandwiches, but could not stand on her feet for long, preventing her otherwise from cooking. [99] She said this commenced during the six to nine months after the injury was sustained. She said she had problems with anxiety, which impaired her sleep. [100] She was prescribed the antidepressant, Valium. Similarly, she said she could not wash clothes for about six months because of the need to bend down. [101]

    99. T74/46-75/9.

    100. T76/4-9.

    101. T76/42-T77/5.

75. Ms Bekdache gave evidence that she has no capacity to lift a mattress to change sheets, [102] to hang clothes to dry, [103] or to wash dishes beyond five minutes. [104]

    102. T76/29-40.

    103. T77/7-15.

    104. T77/23-27.

76. In mid-2017, Ms Bekdache moved into another two-bedroom unit on Chapel Rd, Bankstown for about two years. [105] She said her cousin, Ms Al Charif, and sister, Nour, who was 10 years old at the time, [106] did the housework three to four days a week [107] for “[r]oughly an hour a day”. [108] Ms Bekdache looked after her daughters, although their father took them on weekends. [109] She said she could do some limited tidying of the house, arrange cushions, remove coffee cups and the like, but her sister did the dishes and her cousin would come three times per week. That assistance from her cousin reduced in 2018, when her cousin’s assistance was needed by her nephew. [110]

    105. Exhibit C; T77/35-50, T78/45.

    106. T392/24.

    107. T78/6; T78/32-T79/1.

    108. T73/25.

    109. T79/5.

    110. T80/39-T81/6.

77. In June 2019, Ms Bekdache moved into a three-bedroom flat in Yagoona with her daughters. [111] Her younger sister, Nour, who moved in also, [112] helped every day, getting her youngest child ready for school, and putting her to bed at night. [113] When Ms Bekdache’s children need to be picked up (as in physically lifted), her sister would do it. [114] Ms Bekdache gave evidence that her sister prepares her daughters for school and bedtime because she cannot do it, and with her cousin, Ms Rana Al Charif, who lived next door, [115] did the housework. Ms Al Charif would bring a cooked meal to her house daily. [116]

    111. Exhibit C.

    112. Exhibit C.

    113. T393/45; T400/49-T401/1; T403/41-T404/1.

    114. T84/10.

    115. T81/29-45; T357/34-T358/8.

    116. T84/33-41.

78. Ms Bekdache’s now 13-year-old sister, Nour Bekdache, and cousin, Ms Al Cherif, gave evidence in support of Ms Bekdache’s disabled condition. Both were impressive in their demeanour. Her sister’s evidence was given with a confidence that belied her age. I accept that when they visited, and when Nour lived with Ms Bekdache, they provided domestic assistance. The reasonable necessity for this assistance, however, depends largely on Ms Bekdache's evidence.

79. Ms Bekdache asserted that her condition since the accident meant that she could not do ironing for more than a minute, [117] sit for more than 30 minutes, [118] lift her arms above chest height, [119] collect items from overhead cupboards in her kitchen, [120] bend more than 45 degrees, [121] or pick up things from the bottom shelf of cupboards or from the floor. [122] These matters seemed hard to reconcile with her long travel, sometimes accompanied only by her children.

    117. T99/23-T100/24; T113/15.

    118. T86/20-33; T113/23.

    119. T116/5-18; T116/43.

    120. T117/9-13.

    121. T118/41.

    122. T117/42-T118/9.

Overseas travel

80. Ms Bekdache gave evidence of travelling overseas on four occasions since 2017. In about September 2017, she flew to Lebanon for two weeks [123] with her youngest daughter, who was “less than a year old or a year old or thereabouts”. [124] She had to carry her daughter onto the plane. [125] She said she did not lift her checked luggage at all. [126] The flight involved her “in a lengthy sitting”. [127] There was no evidence of Ms Bekdache consulting her doctors about any problems with her conditions whilst overseas or upon returning. [128]

    123. T143/25.

    124. T144/13-17.

    125. T144/20; T145/46.

    126. T145/31.

    127. T143/37.

    128. T146/45.

81. Between 2018 and 2020, Ms Bekdache travelled to Lebanon once a year. [129] On two of those trips she was accompanied by Ehab, a former de facto partner [130] or husband, [131] whom she married in 2017 or 2018. [132] Her route was from Sydney to Dubai and then from Dubai to Beirut with an hour and a half break in between. [133] The flight between Dubai and Beirut was two and a half hours, the flight from Sydney to Dubai obviously longer. [134] She was “able to cope with that travel” even “if the flight was hard” for her. [135] She said she would sit for “as long as I can. When I need to get up I’d get up”. [136] “When I needed to get up and take a walk I would”. [137] To assist with the pain during the flight she would lie down on the empty seats at the back of the plane. [138] At the end of the flight to Dubai, she felt pain in her feet, neck and back with her foot pain being the worst. She described her “pain levels were at 10”. [139] During the break in between flights, she rested and “put her feet up” which she said provided relief. [140] She said she had similar pain levels on the flight from Dubai to Beirut, “really still uncomfortable and painful for me at the same time. [141] She took Valium and Panadeine Forte two times on both flights. [142]

    129. T189/16-32.

    130. T188/36.

    131. T188/32.

    132. T188/42.

    133. T239/18-27.

    134. T240/14-18.

    135. T190/18-20.

    136. T190/29.

    137. T190/32.

    138. T240/32.

    139. T239/45-T240/9.

    140. T239/29-43.

    141. T240/20-25.

    142. T240/47-T241/11.

82. This year she travelled to Thailand for two nights [143] with Ehab. [144] She said she did not take any luggage bag with her. [145]

    143. T193/28.

    144. T192/32-T193/4.

    145. T193/37.

Giving evidence

83. Ms Bekdache gave evidence that sitting in court left her at the end of the day in pain, which she ranked at a level of 10 on a scale of 1 to 10. [146] Ms Bekdache did not appear especially troubled by pain in the witness box. She did stand two or three times for about a minute or less during the course of her evidence, which lasted for the whole of one day and part of other days. Otherwise she appeared reasonably comfortable. I did not infer this appearance was because of a stoic nature, as her evidence was that she tended to avoid all housework because it caused her pain. I found her evidence of a level 10 pain in the witness box, like her evidence of four years of constant neck and back pain in circumstances where she did not consult her treating doctors about it, difficult to accept.

    146. T234/5.

Work history

84. Some years before the accident, Ms Bekdache had commenced hairdressing training, but this ceased shortly after starting. [147] She said she had anticipated returning to it when her youngest daughter was about three years old and ready for childcare. [148] Now Ms Bekdache is in the process of completing a qualification as a beauty therapist, doing nails, eyelashes and waxing, and has advertised herself on her social media page. [149] She expects to be fully qualified by the end of the year. [150] Other than a brief period casually working part-time in a cafe for a few months, she has not engaged in paid employment since she left school in 2007 at the age of 14 years and 9 months. [151] Her first child was born in February 2012. [152]

    147. Exhibit C; T49/42-T50/4.

    148. T55/40-T56/1.

    149. T90/1-T91/43.

    150. T90/15.

    151. Exhibit C; T92/25-35.

    152. Exhibit C.

Another accident

85. Ms Bekdache was involved in a motor vehicle accident in October 2018. She was travelling 50 to 60 km/h and collided with another car turning in front of her. [153] She reported “lateral neck pain”, tenderness and restricted neck movement at Bankstown Hospital [154] and was diagnosed with a “neck muscle strain”. [155] She saw Dr Hussein on 31 October 2018, who records “neck pain following MVA on 28 Oct 2018 and attended to hospital … also [complained of] headache…after MVA left neck pain radiated to the left arm pins and needles”. [156] She had x-rays and a CT scan. [157] The neck pain was also noted in her next visit to Dr Hussein about three weeks later on 21 November 2018. [158]

    153. Exhibit 2, p 273.

    154. Exhibit 2, p 273.

    155. Exhibit 2, pp 272-273.

    156. Exhibit K, p 189 of PTB.

    157. Exhibit K, p 189.3 of PTB.

    158. Exhibit K, p 188 of PTB.

Medical notes and expert reports

86. Dr George Konidaris, the orthopaedic surgeon who operated on Ms Bekdache's foot, reported on 2 September 2016, 11 weeks after the accident, to Dr Ali El-Jaam, that the external fixator was removed about early August, and that she was in a Cam boot until “approximately a week ago”, presumably late August. He reported that Ms Bekdache “continues to mobilise with a limp and continues to have swelling although this is improving”. Dr Konidaris described the swelling as “mild” with “mild tenderness” and that stressing the foot causes “mild discomfort”. [159] He reported that “All the external fixator pin sites have healed adequately” and the “navicular fracture looks to be healing adequately” with “no obvious abnormality noted” in the “cuneiform factures”. [160] Dr Konidaris recommended Ms Bekdache have a “medial arch support orthotic fabricated”, gave her a referral to the Bankstown Foot Clinic for this, and that she return in two months with progress x-rays and a CT scan of the foot “to assess facture union”. [161]

    159. Exhibit K, p 357.5 of PTB.

    160. Exhibit K, p 357 of PTB.

    161. Exhibit K, p 357 of PTB.

87. Ms Bekdache did not return to see Dr Konidaris. She did attend the Bankstown Foot Clinic about two months later on 8 November 2016.

88. Ms Bekdache visited Dr El-Jaam’s clinic: on 13 July when she obtained the medical certificate that accompanied her claim form; on 27 July on an apparently unrelated matter; on 4 August when she was wearing her cam boot where her right foot was described as “tender, swollen, not hot, not red, restriction present, restricted ROM” and obtained prescriptions for Brufen and Panadeine Forte; then on 29 August and on 2 November on unrelated matters, in respect of fevers, and lethargy and depressed mood. On 14 February, about eight months after the injury, she again saw Dr El-Jaam in respect of her foot, which remained tender, and she obtained more Brufen and Panadeine Forte. She complained, presumably of pain, if “standing up or walking long distances”. A similar complaint was made in March and April 2017. She did not visit Dr El-Jaam again until 11 September 2017 when she consulted him in respect of “travel advice”. There was no complaint to Dr El-Jaam before September 2017 in respect of back, neck or knee pain. In the period from September 2017 to January 2018 she complained of left knee tenderness, and twice of left foot swelling and pain.

89. The handwritten note of the Bankstown Foot Clinic dated 8 November 2016 indicated that Ms Bekdache was still experiencing foot pain, worse on first arising and at the end of the day, and there is a note of “LBP secondary due limp”, [162] presumably lower back pain, and also “instability”. Physiotherapy was recommended. The note mentioned “awaiting ins approval” which I might infer was in respect of orthotics, although there is no evidence that she benefitted from orthotics or explained why she did not.

    162. Exhibit N, p 2.6.

90. Ms Bekdache first consulted Dr Hussein of Bankstown Medical Centre on 11 July 2016 in regards to her foot injury. [163] She thereafter saw Dr Hussein on 8 February 2017 feeling weak and dizzy and fainting but “no neck stiffness” and on 24 February she complained about her right foot and right knee pain.

    163. Exhibit K, p 198 of PTB.

91. On 3 March 2017 [164] Ms Bekdache first saw Dr James Bodel, orthopaedic surgeon, a medico-legal expert she retained. She gave Dr Bodel a history that included “intermittent lower back pain because of her abnormal gait pattern”. [165] Dr Bodel reported:

“good range of neck flexion, extension and rotation and there is no asymmetry of neck movement or guarding. She has full shoulder abduction and rotation and no impingement or instability in the shoulders … no … radiculopathy in the upper limbs. She has a good range of lateral bending and rotation of the thoracic spine. There is no tenderness at the lumbosacral junction or guarding in that region … There is some mild discomfort in the back at this backache [sic] at this point and also on extension but there is no asymmetry of back movement. Straight-leg-raising is unimpaired”. [166]

164. Exhibit J, p 25 of PTB.

165. Exhibit J, p 26 of PTB.

166. Exhibit J, p 27 of PTB.

92. Dr Bodel noted greater restrictions in the right foot range of motion, “some mild weakness of resisted ankle movement on the right hand side … no clinical sign of radiculopathy in the lower limbs and no evidence of localised neurological abnormality in the right foot or ankle”. [167] He noted the absence of any complaints at Bankstown Hospital about neck or back pain, and concluded that Ms Bekdache’s condition had stabilised, with ongoing discomfort and stiffness.

    167. Exhibit J, p 28 of PTB.

93. Dr Bodel did not anticipate any need for future surgery, although he mentioned the possibility of post-traumatic osteoarthritis in her foot that may necessitate surgical fusion. He anticipated further clinical improvement, but thought prolonged standing as a hairdresser was not appropriate for her injury, and that retraining into semi-sedentary work was needed. [168] He reported a need for physiotherapy, exercise and to continue her current medication, and that domestic assistance for heavy household maintenance and cleaning activities was required. [169]

    168. Exhibit J, pp 29-31 of PTB.

    169. Exhibit J, p 31 of PTB.

94. In a later report after an assessment on 17 April 2019, [170] Dr Bodel confirmed with Ms Bekdache the history in the earlier report. [171] Both his 2017 and 2019 reports refer to the attendance of police and ambulance at the accident, which did not occur, and contain a mistaken reference to the passenger side of the vehicle. Dr Bodel noted in the second report the subsequent development of pain in the neck, back and both knees. [172] He reported that Ms Bekdache “reports no new accident or injury”. [173] Examination produced similar results as previously, apart from a complaint of neck tenderness with some restricted range of motion. [174] Dr Bodel said Ms Bekdache did not require surgery nor was future surgery anticipated. Dr Bodel noted the solicitor’s reference to “a subsequent movement in October 2018” which he said temporarily aggravated the neck pain already in existence. [175] As indicated above, the neck pain was not noted in his earlier report.

    170. Exhibit J, pp 34 of PTB.

    171. Exhibit J, pp 35 of PTB.

    172. Exhibit J, p 36 of PTB.

    173. Exhibit J, p 36 of PTB.

    174. Exhibit J, p 37 of PTB.

    175. Exhibit J, p 40 of PTB.

95. Dr Andrew Porteous, occupational physician, was also retained as a medico-legal expert by Ms Bekdache. She consulted him on 22 March 2017. Dr Porteous in his report referred to the initial collision and the subsequent foot injury. As the report indicates, and also Dr Porteous confirmed in his oral evidence, [176] the “onset of posterior head pain, cervical pain, thoracic pain, lumbar back pain” [177] from the accident was, in the doctor’s mind, a reference to the initial collision of Ms Bekdache’s car with the parked vehicle and not to the event where Ms Bekdache’s foot was injured.

    176. T484/4-24.

    177. Exhibit J, p 14 of PTB.

96. Dr Porteous accepted in oral evidence that he was significantly reliant on the history Ms Bekdache gave him. [178] He reported that she lived by herself with no help from family. He concluded that Ms Bekdache would reasonably require three hours per week of domestic assistance, a view he adhered to in cross-examination although he conceded he was unaware of the features of Ms Bekdache’s residence. [179] He accepted that his ignorance of the features of Ms Bekdache’s residence diminished the value of his opinion, but adhered to his opinion that 20 to 30 minutes per day would equate to the 3 hours per week he allowed. [180]

    178. T474/23.

    179. T489/40-T491/5.

    180. T491/39-49.

97. Dr Porteous assessed surgery to the foot as “reasonably likely”, although he deferred to comments of the orthopaedic surgeon. [181] He thought Ms Bekdache could only work 24 to 28 hours per week in a sedentary work setting. [182]

    181. Exhibit J, p 19.5 of PTB.

    182. Exhibit J, p 18 of PTB.

98. Dr Porteous accepted that if there was an absence of notes of complaints about her back, neck and knee in the months after the accident, it would be something of importance causing him to reconsider but not change his diagnosis. [183] He accepted that Ms Bekdache’s evidence of an inability to reach above her chest or below mid-thigh was different both from what he was told and how she performed on testing. [184] He accepted that he saw no spasm or guarding or other objective indications of her claimed back and neck problems. [185]

    183. T485/40-T487/22.

    184. T481/25-29; T489/28-38.

    185. T477/26-44; T479/5-18; T487/34.

99. Dr Porteous accepted that how Ms Bekdache fell would be important to inform him of the mechanism by which back and neck injury could occur, a matter he had not investigated. [186] Dr Porteous attributed the musculoligamentous strain in Ms Bekdache’s cervical and lumbar spine to Ms Bekdache’s collision with the stationary car prior to the events involving Ms Chen’s vehicle. [187]

    186. T484/45-485/28.

    187. T484/24.

100. The day after the initial assessment by Dr Porteous, and shortly after the first assessment by Dr Bodel, Ms Bekdache returned to the Bankstown Medical Centre and complained of neck pain and cervical back pain. She was offered a referral to a neurologist when she complained of spasm, but declined. [188] Ms Bekdache made several further visits to the Bankstown Medical Centre after 24 March 2017 until 1 October 2018, but none concerned neck or back pain. In December 2017, she referred to pain and tenderness in a “small tender localised [spot] on the tail bone” which was indicated to be due to a separate incident. [189]

     188. Exhibit K, p 197 of PTB.

     189. Exhibit K, p 193.9 of PTB.

92. As indicated earlier, Ms Bekdache twice complained to Dr Hussein, and to Bankstown Hospital of left side neck pain in October and November 2018 after a motor vehicle accident on 28 October 2018.

93. Ms Bekdache was assessed by Dr Christopher Harrington, orthopaedic surgeon retained by the defendant, on 7 November 2018, about 10 days after the October 2018 motor vehicle accident. Like others, his report also incorrectly identifies the street location, and erroneously refers to the presence of police and an ambulance in his recounting of Ms Bekdache’s history. Dr Harrington notes that Ms Bekdache goes to the gym twice weekly, but does not use the treadmill, doing mainly upper body strengthening. Ms Bekdache in her oral evidence said her visit to the gym “was a fail”. [190]

    190. T237/6.

94. Dr Harrington referred to Ms Bekdache’s problem with her knees, neck pain, headaches and pins and needs down her left arm. He noted a general absence of “ongoing trouble with her lumbar spine” [191] and examined her cervical spine. He concluded that she “had minor soft tissue injuries to the cervical spine, lumbar spine and right knee…directly related to the subject motor vehicle accident on 16 [sic] June 2016”. [192] He thought Ms Bekdache is likely to develop midfoot arthritis, but did not advocate surgery [193] and thought the “prognosis for her spinal soft tissue injuries is good”. [194]

    191. Exhibit J, p 48.1 of PTB.

    192. Exhibit J, p 49.3 of PTB.

    193. Exhibit J, p 49.4 of PTB.

    194. Exhibit J, pp 49.5, 51.3 of PTB.

95. Dr Harrington referred to Ms Bekdache receiving home assistance from her sister and grandmother, although she “manages most of the housework at her own pace”. [195] He said, “She may be eligible for domestic assistance to vacuum and mop the floors”. [196] He agreed that Ms Bekdache was unable to work as a hairdresser in the future. [197] He concluded that the rigid subtalar joint was congenital, being present in both feet, and this was not attributable to the accident. [198]

    195. Exhibit J, p 52 of PTB.

    196. Exhibit J, p 52 of PTB.

    197. Exhibit J, p 53.7 of PTB.

    198. Exhibit J, p 53.8 of PTB.

96. Dr Harrington’s report makes no reference to the motor vehicle injury occurring in the prior fortnight on 28 October 2018, indicating both that Ms Bekdache did not inform him of it and that his conclusions about the cause of neck pain were reached in ignorance of the 2018 accident.

97. On 8 July 2019 Dr Kalev Wilding, the MAS assessor, undertook a MAS assessment of Ms Bekdache. He noted a claim by Ms Bekdache to have experienced neck pain after the 2016 accident. [199] He also referred to the later accident on 28 October 2018 where Ms Bekdache sustained a nasal fracture and experienced neck pain. [200] Dr Wilding noted Ms Bekdache’s complaints of intermittent neck pain associated with headaches; intermittent pain in the interscapular and lower lumbar region if she stood for a prolonged period such as while washing dishes, [201] restricted movement in her right ankle and pain in her midfoot region, and its weakness upon arising, and noted also her regimen of painkillers. He examined her cervical, thoracic and lumbar spine, found a reduced range of motion but no guarding, or neurological deficit and negative stretch tests. [202] Whilst he accepted the complaints, [203] he did not consider that any spinal injury resulted from the 2016 incident since there was no contemporaneous evidence of injury to these regions. It appears that Dr Wilding considered the 2018 motor vehicle accident the cause of these injuries. [204] Dr Wilding noted that Dr Harrington was not informed of the 2018 accident. [205]

    199. Exhibit J, p 58.4 of PTB.

    200. Exhibit J, p 58.6 of PTB.

    201. Exhibit J, p 58.7 of PTB.

    202. Exhibit J, p 59 of PTB.

    203. Exhibit J, p 60.5 of PTB.

    204. Exhibit J, p 62.9 of PTB – the word “not” appears to be a typographical error.

    205. Exhibit J, 9 62.1 of PTB.

98. Dr Andrew Keller, occupational physician, was also retained by the defendant. He took a history which was largely uncontroversial, although the ambulance was again wrongly mentioned. In it Ms Bekdache asserted left knee pain two or three months after the accident. He examined Ms Bekdache on 5 February 2019. Ms Bekdache complained of right foot pain and neck pain, both rated a 6 out of 10 intensity. She also reported that her left knee has locked on four occasions. She claimed to be able to sit for 15 minutes, stand and walk for 20 minutes, lift 15 kilograms, and drive an automatic vehicle for up to 25 minutes. [206] She walked unassisted and without a limp, moved her neck freely without restriction or distress. Cervical and lumbar spine was normal with no spasm. She was able to “stand on her heels and toes without foot drop”. [207] Range of motion in both ankles was full and normal.

    206. Exhibit 2, p 411.6.

    207. Exhibit 2, p 412.

99. Dr Keller concluded “The fractures have healed and she appears to have recovered a full range of motion in the ankle although she reports constant pain”. [208] He did not think there was any benefit from passive treatment to her feet, or surgery, [209] and regarded Ms Bekdache as able to study and work full-time without restriction. In his view, Ms Bekdache required no domestic assistance.

    208. Exhibit 2, p 413.

    209. Exhibit 2, p 414.

100. A second report of Dr Keller on 10 January 2020 followed an examination of Ms Bekdache two days earlier. On this occasion, Ms Bekdache reported constant right ankle pain at 8 out of 10 intensity and constant left knee pain at 10 out of 10 intensity. [210] He reported Ms Bekdache said she is able to do limited cooking and cleaning, and says, as he reported in his first report, she continues to live with her mother, [211] which is different from all other evidence. His examination produced similar results to those recorded in his first report. Ms Bekdache disclosed to him the October 2018 motor vehicle accident. He regarded Ms Bekdache continuing to take Endone more than three years after the accident as inappropriate, although he was unclear whether this was for other concerns such as her abdominal pain complaint. [212] Thus, his opinion was substantially the same as previously.

     210. Exhibit 2, p 419.

     211. Exhibit 2, pp 411, 419.

     212. Exhibit 2, p 422.5.

101. A joint report of Dr Keller and Dr Porteous was also in evidence. It recorded the extent of disagreement manifest in their respective reports.

Analysis

111. Ms Bekdache accepted that she did not complain to a treating doctor about neck or back pain until after she saw Dr Porteous, her medico-legal occupational therapist, in March 2017, some nine months after the accident. When she did mention it to Dr Hussein on 24 March 2017, she said the pain substantially interfered with her daily life, and prevented her daily from doing domestic tasks and caring for her two daughters. Dr Hussein’s notes record that “it comes and goes since 8 months”. [213] That mention did not persuade me to attribute neck pain to the use of crutches even if, as she submitted, eight months earlier she was using crutches. She had ceased using crutches several months earlier. Nor did I find the reference to “LBP secondary due limp” noted at the Bankstown Foot Clinic to be a professional diagnosis, but rather a notation of a complaint on 8 November 2016.

     213. Exhibit K, p 197.5 of PTB.

112. Apart from the month following another motor vehicle accident in October 2018, Ms Bekdache did not again until February 2020 seek any treatment in respect of back or neck pain.

113. Dr Hussain recommended Ms Bekdache see a neurologist, but she did not follow that recommendation. She says she did not mention neck and back pain to Dr Hussain or another treating doctor because she was concerned about other matters. [214] Ms Bekdache attended her treating physician regularly, 17 times in the past 3 years. She had debilitating pain from a stomach problem at various times, including in August 2017 and May 2018, when she had a colonoscopy. Her abdominal issues were the primary cause of repeated admissions to hospital, [215] and was a condition that prevented her from doing domestic tasks. [216]

     214. T131/11, T132/10-29, T134/7-38.

     215. Between 4-17 times, T141/45; T185/30-40; T188/5-21.

     216. T142/11, 21.

114. Attributing Ms Bekdache’s neck complaints to the injury to her foot seems problematic. Dr Bodel did so, but initially found no neck problems and subsequently ignored or misunderstood the effect of the 2018 motor vehicle accident. Dr Porteous wrongly attributed the neck problems to the immediately prior minor collision in 2016. Dr Harrington drew conclusions whilst uninformed of the 2018 accident. The contemporaneous records establish the relevance of the 2018 accident to Ms Bekdache’s neck complaints, as Dr Wilding concluded. In my view, the lack of contemporaneous complaints, the insufficient demonstration of a mechanism for injury of the neck from the foot injury, and the clear indication of the connection between the 2018 accident and a neck problem are all weighty matters that point to a 2018 genesis of Ms Bekdache’s neck complaints. I am not persuaded that the 2016 injury had any connection to Ms Bekdache’s neck problems.

115. The problem of establishing a mechanism for injury, and the lack of contemporaneous complaints, likewise impacts on the likelihood of knee and back problems being related to the 2016 event. And the other medical problems, such as polyarthralgia, serve as more likely explanations, especially when, for example, both knees are the subject of complaint at different times.

116. Accordingly, whilst the weight of evidence was against Dr Keller’s conclusion that Ms Bekdache’s ongoing complaints of neck, back and knee problems were unfounded, still I was not persuaded that these complaints arose out of the 2016 incident involving her foot injury.

117. Dr Keller initially attributed soft tissue injuries to the neck and back, but appeared to change his view after seeing the lack of any complaint in the hospital records or in Ms Bekdache’s subsequent medical visits. [217]

     217. T511/44-T512/15.

118. Ms Bekdache’s damages should therefore be confined to the injury and disability to her right foot.

119. Ms Bekdache suffered a serious foot injury in the accident. Although Dr Konidaris concluded that the injury was healing well, Ms Bekdache complained in November 2016 at the Bankstown Foot Clinic of ongoing problems in the mornings and evenings. [218] Foot complaints persisted after 2016. But by that stage, Ms Bekdache had obtained her driver licence and was again driving. She was able to move out from her mother’s place and, after her short second marriage ended, take responsibility for herself and her daughters and take her younger daughter on long distance international travel. In my view, her foot was substantially healed by the end of 2016, although it continued to give her intermittent problems thereafter.

     218. Exhibit N.

120. On 14 February and 13 March 2017 Ms Bekdache complained to Dr El-Jaam of tenderness and problems when standing or walking long distances, [219] and on 24 February 2017 complained to Dr Hussein of pain. Problems with Ms Bekdache’s foot are supported by the reports of Dr Bodel, Dr Porteous, Dr Harrington and Dr Wilding. Dr Keller’s opinion that the foot is completely problem-free is something of an outlier even if his was the most updated report. I accept that the limited range of motion is less significant given the congenital stiff subtalar joints referred to by Dr Harrington, [220] but I am satisfied that Ms Bekdache still experiences symptoms of pain from time to time in her foot. Her other ailments, such as her abdominal, neck and joint problems may be more significant on a daily basis, but her injury materially contributes to ongoing symptoms in her foot which manifest themselves from time to time and are relieved by analgesics.

     219. Exhibit K, p 129 of PTB.

     220. Exhibit J, p 48.5 of PTB.

121. These findings inform the decision on the heads of damage.

Past economic loss

122. Ms Bekdache claims $10,000 for past economic loss. She was not working at the time of the accident. She had not worked for more than a decade and not at all apart from a brief stint as a casual waitress. The circumstance that she had once commenced then quickly abandoned a hairdressing course does not indicate any real possibility that she would become a hairdresser, even if she now recollects that prior to the accident she had intentions to return to pursue that vocation once her youngest child was old enough to attend day care, something she said would have occurred in the last year. A return to hairdressing would require training, so that employment would still have been some time off, even if Ms Bekdache’s evidence of when she would recommence was persuasive. Given her past work history, it was not. More persuasive was her present involvement in training as a beauty therapist. I am not satisfied that her training as a beauty therapist was at all delayed by the accident. I would not award any damages for past economic loss.

Future economic loss

123. Many of Ms Bekdache’s ongoing problems limiting her employment are unconnected with her accident. Her foot, although problematic from time to time, has substantially recovered. She has experienced significant ongoing abdominal and psychological problems, and I have found no neck or back problems associated with the accident.

124. Dr Bodel, [221] Dr Harrington and Dr Porteous [222] indicate a need for her to have semi-sedentary employment. Dr Porteous attributes this to her “neck and back”. [223] Ms Bekdache attributes this to her neck and back, but Dr Bodel [224] and Dr Harrington [225] indicate that her foot plays some role in her incapacity.

     221. Exhibit J, p 29.8 of PTB.

     222. Exhibit J, p 18 of PTB.

     223. Exhibit J, p 18.3 of PTB.

     224. Exhibit J, p 29.8, cf p 39.2.

     225. Exhibit J, p 52.1 of PTB.

125. In my view, Ms Bekdache has had a significant injury, which still causes her intermittent pain, and she may have an increased likelihood of osteoarthritic problems developing in her right foot, [226] which, with a possible need for surgery, could limit future employment prospects particularly in the event that her other health problems abate. She gave no evidence of foot problems significantly impacting on her work as a beauty therapist, [227] yet her foot is not so robust as, but for the injury, it otherwise would be and she has a substantial period of her life left during which she could be employed.

     226. Exhibit J, p 49 of PTB, cf Exhibit J, p 39 of PTB.

     227. See T85/21-T86/12, T176.

126. I take into account that Ms Bekdache’s past work history indicates that there would have been substantial periods of her life when she will not work at all, even without her foot injury, and also because her other complaints will also impact on the hours and longevity of any employment she undertakes.

127. In these circumstances, I would award a buffer of $50,000 for this head of damage.

Past out of pocket expenses

128. The parties have agreed $718.25 for Medicare treatments, $432.60 for Masnad Health Clinic and a further $100 for pharmaceutical expenses. [228] Several of Dr El-Jaam’s treatments are not evidenced to relate to the foot injury, but I would allow the charges for 13 March 2017 [229] and 24 April 2017 [230] as both consultations concerning her right foot. [231] Thus, $1,406.85 is allowed for past out of pocket expenses.

     228. T706/39.

     229. Exhibit K, p 129.5 of PTB.

     230. Exhibit K, p 129.2 of PTB.

     231. See Exhibit K, p 129 of PTB.

Future medical expenses

129. Dr Bodel sees “no indication for surgeries”, [232] but refers to modified footwear and insoles. Dr Harrington did note the prospect of “surgical options” because of the development of arthritis, initially with cortisone and anaesthetic injections. The anticipated cost for fusion surgery was estimated by Dr Porteous to be from $3,500 to $12,000, [233] but this must be discounted because of the uncertainty of it occurring. Together with the possible future need for orthotics and analgesics, I would allow $10,000 for future medical expenses.

     232. Exhibit J, p 38.5 of PTB.

     233. Exhibit J, p 19.5 of PTB.

Care

130. The parties have agreed on a gratuitous care rate of $28 an hour. No claim is made for past commercial care.

131. I find that Ms Bekdache needed care for the first six months after the accident. In my view, that care would involve on average 2 hours per day or 14 hours per week for the first three months until after she was out of her Cam boot and I would allow 7 hours thereafter. This average of 10.5 hours x 26 weeks x $28 per hour calculates to an amount of $7,644. Thereafter, Ms Bekdache would not receive any amount for gratuitous care. Although she received assistance for periods, particularly from her younger sister and cousin, Rana, I am not satisfied that this care was due to her foot injury, at least not to a level that satisfied the required six hours per week threshold. Her occupational therapist, Dr Porteous, recommended a lesser need of three hours a week in March 2017. [234] Ms Bekdache may, for example, have received and required more than six hours per week in some weeks, largely due to other issues, but even if the six-month period was satisfied, this need for care was unconnected with her foot injury.

     234. Exhibit J, p 20.8 of PTB.

Future care

132. The same circumstance applies to Ms Bekdache’s claim for future care. And Ms Bekdache’s care needs are likely to be met gratuitously as they have invariably been in the past. However, there remains a prospect of future surgery to her foot, and consequent care including possible commercial care. It is appropriate that there be some buffer in the event of the occurrence of the arthritis referred to by Dr Harrington. [235] I would allow a buffer of $10,000 for future care.

     235. Exhibit J, p 49 of PTB.

Section 15B

133. Section 15B of the Civil Liability Act 2002 provides for damages for loss of capacity to provide domestic services.

134. I find that a similar period that Ms Bekdache required care in the past also involved necessary care for her children. During the first six-month period after the incident, Ms Bekdache lived with her parents and her mother looked after her children. Ms Bekdache’s younger daughter was only six months old at the date of the incident. I allow for the first three months after the foot injury care at a rate of 26 hours per week on average, decreasing during the initial three-month period, and 6 hours per week in the subsequent period, an average of 16 hours per week for the 26-week period.

135. Thus, past care allowed would equate to 16 hours x 26 weeks x $28 per hour, a total of $11,648. Although care was provided for the children after this period, particularly by Nour, Ms Bekdache’s sister, I am not satisfied that any care required by Ms Bekdache’s occasional foot pain met the threshold. I would, however, allow a further small buffer of $5,000 against the need for the care of Ms Bekdache’s children in the event of significant treatment occasioned by the development of mid-foot arthritis.

Conclusion

136. Accordingly, damages are:

Head of damage	$
Past out of pocket expenses	1,406.85
Future economic loss	50,000.00
Future medical expenses	10,000.00
Past care	7,644.00
Future care	10,000.00
Past s 15B	11,648.00
Future s 15B	5,000.00
Total	95,698.85

137. This amount of $95,698.85 must be reduced by two-thirds due to contributory negligence. Thus, the appropriate award of damages is $31,899.62.

Orders

138. The orders of the Court are:

1. Judgment for the plaintiff in the sum of $31,899.62.

I will hear the parties on costs.

**********

Endnotes

Decision last updated: 05 February 2021