Colak v Ghalloub

[2017] NSWDC 128

District Court

New South Wales

Medium Neutral Citation:	Colak v Ghalloub [2017] NSWDC 128
Hearing dates:	8, 9, 10 February 2017; 20 and 21 April 2017
Date of orders:	30 May 2017
Decision date:	30 May 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Costs reserved. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – motor vehicle accident – conflicting liability evidence – contributory negligence – damages
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 31.27(1)(c) and Sch 7, cl 5(1)(c)
Cases Cited:	Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 Dungan v Chan [2013] NSWCA 182 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Gulic v O’Neil [2011] NSWCA 361 Hawthorne v Hillcoat (2008) 51 MVR 523 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Marien v Gardiner [2013] NSWCA 396 Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95 Vale v Eggins [2006] NSWCA 348
Category:	Principal judgment
Parties:	Plaintiff: Ali Colak Defendant: Ghalloub Ghalloub
Representation:	Counsel: Plaintiff: Mr J Turnbull SC Defendant: Mr A J J Renshaw   Solicitors: Plaintiff: AJB Stevens Lawyers Defendant: Sparke Helmore Lawyers
File Number(s):	2015/302011
Publication restriction:	None

Judgment

The pleadings

1. The plaintiff, by statement of claim filed on 15 October 2015, brings proceedings for damages for a motor vehicle accident which occurred on 9 October 2014.

2. The circumstances of the accident, as set out in the statement of claim, were that the plaintiff was driving his motor vehicle in a northerly direction along Montrose Avenue, Merrylands, New South Wales, when the defendant reversed his motor vehicle out of a driveway and, according to paragraph 5 of the statement of claim, “as a consequence collided with the plaintiff’s vehicle”. This is one of a series of different descriptions of the motor vehicle accident; the different accounts the plaintiff gave to police, doctors, on his claim form and to the court were central issues in relation to liability.

3. The particulars of negligence are as follows:

1. Travelling at an unsafe speed;

2. Failure to keep a proper look out

3. Failure to ensure that the vehicle was kept under control;

4. Failure to comply with the Motor Traffic Act and Regulations;

5. Failing to steer, control, brake or otherwise control the vehicle;

6. Driving in a careless manner under the circumstances;

7. Failure to heed the risk of injury;

8. Failed to observe the circumstances leading to the accident and failed to have regard to those circumstances and take action to avoid injury being occasioned to the Plaintiff;

9. Travelled at an excessive speed in the circumstances;

10. Such further or other particulars as may become evident.

4. A defence of contributory negligence is pleaded in the defence filed on 3 March 2016. The particulars of contributory negligence are:

1. driving in excess of the speed limit;

2. failing to reduce his speed;

3. failure to take care for his own safety;

4. failing to give adequate space in driving around the defendant’s vehicle.

The issues

5. The issues are:

Liability

1. Whether the plaintiff observed the defendant’s vehicle reversing from the driveway upon turning on to Montrose Avenue prior to the collision.

2. Whether the plaintiff attempted to drive around or past the defendant’s vehicle despite observing it to be in the process of reversing.

3. Whether the defendant was reversing at an excessive speed in the circumstances.

4. Whether the collision was caused by the plaintiff’s failure to give way to the defendant, slow or stop upon observing that the defendant as in the process of reversing.

Quantum

1. Whether the plaintiff suffered any injury as a consequence of the subject collision.

2. Whether the medical evidence shows any aggravation of the plaintiff’s pre-existing injuries and medical conditions as a direct consequence of the subject accident.

3. Whether the plaintiff’s current medical symptoms and complaints are simply a continuation of his pre-existing medical conditions.

4. Whether the plaintiff has suffered any quantifiable loss as a direct consequence of the subject accident.

6. The plaintiff was on a disability pension at the time and had not worked for many years, so there is no claim for past or future economic loss. The plaintiff does not reach the threshold for non-economic loss. As is set out in the schedule of damages, the plaintiff’s claim is limited to past and future care and past and future treatment expenses.

The evidence

7. Evidence of the circumstances of the accident was given by the plaintiff and by his friend, Mr Guven Biber, who was in his own car travelling immediately behind the plaintiff.

8. The defendant made a statement on 24 February 2015, the contents of which are set out below. He was not able to be cross-examined as he died prior to the hearing.

9. As noted above, there are differences of significance between the versions of the accident given by the plaintiff to this Court, to a police officer, to medical practitioners and with the evidence of the defendant, as well as with the evidence of Mr Biber. These differences and the plaintiff’s explanation for them were a significant issue in relation to the plaintiff’s credit and ability to describe the accident accurately, as were concessions he made in cross-examination.

The plaintiff’s evidence

10. The plaintiff, who was born in 1960 in Turkey, emigrated to Australia in 1988 with his wife. He commenced work as a bricklayer, having little formal education.

11. On 24 March 1997 he had the first of a series of injuries which meant that he ceased working in or about 2001. These accidents may be summarised as follows:

1. 24 March 1997: The plaintiff suffered a motor vehicle accident and remained off work until the year 2000.

2. 17 October 2001: The plaintiff fell from a height of 2 metres on scaffolding and received injuries to his lower back, neck and both shoulders. He effectively ceased work from that time onwards.

3. 12 March 2007: The plaintiff was injured in a further motor vehicle accident, when he was again hit from behind by another vehicle. The plaintiff’s evidence was that his injuries resolved to their pre-accident level within one year.

4. 12 August 2011: The plaintiff suffered his third motor vehicle accident and experienced an aggravation of neck and lower back injuries.

12. The plaintiff gave evidence through a Turkish interpreter. He showed a degree of comprehension of English as well and was able to understand and answer questions without difficulty. This is of significance when considering his ability to provide information to medical practitioners (where an interpreter was present) and to a police officer who took a statement from him without the benefit of an interpreter.

13. The plaintiff’s evidence in chief as to the circumstances of the accident was as follows:

“Q. Do you know what speed you were doing, Mr Colak?

A. Probably 50 or so.

Q. What time of day was it?

A. INTERPRETER: Afternoon. It was after afternoon, like about 3pm.

Q. What was the weather like?

A. INTERPRETER: It was very nice.

Q. As you came down towards the bend were there any vehicles in front of you travelling in the same direction?

A. INTERPRETER: Yes, there were some in front of me and behind me as well.

Q. Were there any cars, to your recollection, coming towards you?

A. INTERPRETER: No.

Q. As you came round the bend what happened?

A. INTERPRETER: A reverse-speed car came at me very suddenly from the garage. It was all very sudden.

Q. Which side of the road did the car that you're talking about come from?

A. INTERPRETER: I was going at the left side of the road. He came out of his driveway from the left very quickly.

Q. What happened?

A. INTERPRETER: I wanted to go to the right. I wanted to be able to rescue the car, rescue myself, but I couldn't because it all happened very suddenly.

Q. What happened then?

A. INTERPRETER: I hit into his car. There was an accident because I couldn't save it. I just couldn't rush to the right. It was all too sudden. He stopped in the middle of the road. He was in the middle of the road.

Q. Immediately before the collision occurred was he still moving backwards?

A. INTERPRETER: No, I saw him there suddenly. It was all very sudden.”

14. The plaintiff described how his friend came to help him:

“Q. Now, soon after you got out of the car, did somebody come to the scene of the accident, an acquaintance of yours?

A. INTERPRETER: My friend came, he was one car behind me.”

15. Another friend named “Ismet” and “another friend” who was unnamed came and “took me and my car and we left” (T 22).

The plaintiff’s evidence in cross-examination

16. The plaintiff was challenged not only as to his accuracy of recollection concerning the motor vehicle accident, but also as to his honesty in terms of disclosure on the claim form of his prior medical history (T 87 ff). I shall deal first with the plaintiff’s account of the accident in cross-examination.

17. At T 116 he was asked:

“Q. You could see this car reversing across your path in front of you, couldn’t you?

A. INTERPRETER: As I already explained, I saw in the last minute.

Q. You didn’t know whether he was going to continue reversing or stop, did you?

A. INTERPRETER: I saw it happen very quick. Saw him in the middle. It happened in the middle. That’s all I remember.”

18. Mr Renshaw went on to ask at T 117:

“Q. You could see the car reversing in front of you, could you not?

A. INTERPRETER: In the last minute.

Q. You didn’t know whether it was going to stop or not, did you?

A. INTERPRETER: I didn’t know.

Q. I’m sorry?

A. INTERPRETER: I didn’t know.

Q. Didn’t?

A. INTERPRETER: No. I didn’t know. I didn’t know. I saw it right in the middle.

Q. Did you try to pass around the reversing car or not?

A. INTERPRETER: Just to say I tried.

Q. Did you slow your car down?

A. INTERPRETER: Yes, I did.

Q. Why didn’t you simply stop to let him reverse out of the driveway?

A. INTERPRETER: I didn’t see him getting out of the driveway. I saw him in the middle of the road. How could I stop? It happened very quickly. What should I answer to this question?

Q. What you told the police officer on that day is question, “Then you saw the vehicle reversing from driveway” and you said “Yeah”. You understand that?

A. INTERPRETER: Yes, I understand.

Q. Completely the opposite of what you just said.

OBJECTION. SUBMISSION AND UNFAIR TO WITNESS. QUESTION ALLOWED

Q. You were then asked by the police officer if you saw the vehicle, why didn’t you stop.

A. INTERPRETER: Okay, I couldn’t stop because I saw in the last minute, last moment. That’s what I was trying to say to police.”

19. The plaintiff’s statement to the police, set out in more detail below, differs significantly from his evidence in the witness box. The principal difference was relates to the distance at which the plaintiff first saw the defendant’s vehicle:

“Q. How far away were you, in the number of houses, when you first saw him?

A. INTERPRETER: Houses, two. I saw in the last moment. He just got into the middle very quickly. That’s all I remember.

Q. Look, all you had to do was stop to avoid this accident. Is that not so?

A. INTERPRETER: Yes, but I wouldn’t be able to.

Q. Why would you not be able to?

A. INTERPRETER: Because it happened very quickly. I attempted to drive past from the right and I slowed down. I attempted to drive past from the right because he was in the middle. I couldn’t save it.

Q. If you slowed down, why couldn’t you stop?

A. INTERPRETER: It happened very quickly. I couldn’t.

Q. You had enough time to slow down, didn’t you?

A. INTERPRETER: I tried but couldn’t.

Q. You see, you told the police officer that when you turned you could see him three or four houses away, didn’t you?

A. INTERPRETER: Did I say so to the police?

Q. Yes.

A. INTERPRETER: I could have hit the car if I had any other intention. A house or two doesn’t make a difference. I attempted to save, I wanted to be fair. Okay, because he entered very quickly, that’s how much I could do. I don’t know what else I could say, what else, that’s the thing I can remember. I had no other ill intention. I attempted, I tried to save. It happened quickly and I couldn’t. He was right in the middle.

Q. How far was it from where you hit him from when you turned and could see up the road?

OBJECTION. REPETITION. QUESTION REJECTED

Q. I put it to you that you could have avoided this accident easily if you'd tried.

A. INTERPRETER: No.

Q. You would know from having driven for many years that it was difficult for a car reversing to be able to see you coming.

A. INTERPRETER: It all happened in a very - quickly, in a short time. It doesn't matter who. No-one could have stopped. I tried. Why should I hit someone, to hit?” (T 118)

20. It was also put to the plaintiff that he was on substantial medication at the time, to which the plaintiff replied “I don’t take medication while driving” (T 119), adding “If I take medication I wouldn’t drive”. The plaintiff had been taking very heavy pain medication since his accident in 2001.

Comparison of the plaintiff’s evidence with Constable Al-Ghussain

21. Constable Al-Gussain from Auburn Police Station took a statement from the plaintiff the following day, which is recorded at T 49-50 as follows:

“A. So I said, "I'm going to ask you some questions. You do not have to say or do anything if you do not want to."

Q. Take it slowly.

A. Sorry?

HER HONOUR

Q. No rush.

A. My apologies. I said, "I'm going to ask you some questions. You do not have to say or do anything if you do not want to. Do you understand?" He said, "I understand." I said, "We'll record what you say or do and this recording can be used in court. Do you understand?" He said, "Yeah." I said, "Were you the driver of YBG 21V when it was involved in a collision with AD 17 MC on Montrose Avenue, Merrylands, at 3.30pm on 9 October 2014?" He said, "Yes." I said, "Tell me what happened." He said:

"I follow the road. I turn left side. I can see his car reverse back in your side. So when I see him I try to get more slow and pass the right way. Still I hit him left back and all my car damage. We stop. He said, 'I'm sorry.' He gave me ID, I gave him ID. My witness came. We talk and that's it."

I said, "You said you turned left. Is that correct?" He said, "Yeah." I said, "Then you saw the vehicle reversing from the driveway?" He said, "Yeah." "So then you tried to go around the vehicle on the right-hand side?" He said, "Yeah." I said, "If you saw the vehicle why didn't you stop?" "When I turn I can see him maybe three or four houses. I see him straightaway in my side." "What happened when you hit?" "I'm in shock, panic. He stop, then I stop too." "Did you have anything blocking your view?" "No, nothing." "Do you own your vehicle?" "Yeah." "Were you lights on?" He said, "Off." "Were you wearing a seatbelt?" He said, "Of course." "So do you have any injuries?" He said, "Neck, sharp pain, lower back pain and headache."

"Did you have your vehicle towed?" He said, "No." I said, "Did you take, consume any drugs, alcohol or medication before driving?" He said, "No." I said, "Did you exchange details with the driver when you had your accident?" He said, "Yeah." I said, "When did you see a doctor?" He said, "Today, about 11.45," and then he signed and signed my notebook.

Q. What date was this that this was done?

A. The date he signed my notebook?

Q. Yes.

A. Which was 10 October 2014.

Q. Do you remember speaking to him?

A. Vaguely, yes, I do.” (T 49-50)

22. Constable Al-Gussain gave evidence and was cross-examined.

23. He was asked what steps he took, where a person consulting the police had difficulty speaking English, to ensure that they understood what was being asked of them:

“Q. If a person giving a statement has difficulty speaking English or understanding what you're saying, what is the practice that you adopt?

A. Generally what we would do is we would try to assess how much of a difficulty it is, and then from there we'd ask for permission to arrange for an interpreter to come out to the site and speak.

Q. You didn't do it on this occasion?

A. On this occasion I didn't, no.

Q. Had there been any doubt about what he was telling you being understood would you have made a notation in your notebook or not?

A. I wouldn't because I clarified prior to asking the questions with him. So I'd ask a question, he answered, I clarified that, he confirmed, and then I wrote that into my notebook.” (T 50-51)

24. Constable Al-Gussain further explained how he had clarified, prior to questioning, that the plaintiff was able to understand English sufficiently well to answer questions, and to ensure that he had recorded the answers correctly, giving the following example:

“A. So when I asked him, "If you saw the vehicle why didn't you stop?" and he said to me, "When I turn I can see maybe three or four houses," at that time he was explaining to me that it was just a guesstimate of how far away he was. So then I clarified to say, "Is that in length or is that - exactly how much are you talking?" and he told me that it was approximately in length.

Q. That doesn't appear in your notebook.

A. No, it doesn't. That's correct.

Q. That's just something you remember?

A. Vaguely. Yes, that's correct. That's the kind of question that I would ask to clarify.

Q. He obviously had some difficulty though communicating in English, didn't he?

A. To a certain extent. I wouldn't say it's a big standard, yeah.

Q. I mean, the question you just read out is recorded in your notebook as saying this, is it not - so your Honour knows, we're looking at page 171 of the tender bundle - your question was, "If you saw the vehicle why didn't you stop?" That's right, isn't it?

A. That's correct.

Q. The answer that you gave when you read it out was, "When I turn I can see him maybe three or four houses away."

A. Yeah, that's correct.

Q. But that's not what's written, is it?

A. No, that's not what's written. I wrote it in his own words.

Q. What's written is, "When I turn I can see him maybe three or four house," full stop.

A. Yeah, and then, "I see him straightaway in my side."

Q. "I see him straightaway in my side."

A. That's correct.” (T 51-52)

25. Although the plaintiff’s evidence was that he could only speak English “a little bit” (T 27), it was put to him (T 39) that he did in fact speak and understand English, and that he had just responded in English to a question. I am satisfied that he has a reasonably good understanding of simple English conversation, and is certainly sufficiently capable of understanding questions of the kind put to him by Constable Al-Gussain.

26. Constable Al-Gussain considered that although the plaintiff had difficulty “to a certain extent” with English, he “wouldn’t say it’s a big standard [sic]” (T 52), and that he recorded literally what the plaintiff had said, such as “I turn left side” (T 53). I accept these observations by Constable Al-Gussain (see also T 114-115).

27. Constable Al-Gussain was an impressive witness. He answered questions carefully and frankly, making concessions where appropriate. I am satisfied that he took care, when questioning the plaintiff, to ensure that the plaintiff understood what he was being asked.

28. The plaintiff was cross-examined about the difference between information set out in his statement to Constable Al-Gussein and his evidence in the witness box. At T 117 Mr Renshaw put the following to the plaintiff:

“Q. Why didn’t you simply stop to let him reverse out of the driveway?

A. INTERPRETER: I didn’t see him getting out of the driveway. I saw him in the middle of the road. How could I stop? It happened very quickly. What should I answer to this question?

Q. What you told the police officer on that day is question, “Then you saw the vehicle reversing from driveway” and you said “Yeah”. You understand that?

A. INTERPRETER: Yes, I understand.

Q. Completely the opposite of what you just said.

OBJECTION. SUBMISSION AND UNFAIR TO WITNESS. QUESTION ALLOWED

Q. You were then asked by the police officer if you saw the vehicle, why didn’t you stop.

A. INTERPRETER: Okay, I couldn’t stop because I saw in the last minute, last moment. That’s what I was trying to say to police.” (T 117)

29. I am satisfied that the police officer recorded what the plaintiff said accurately. The plaintiff’s meaning is clear, in that he indicated seeing the car reversing out from the driveway and that the phrase “when I turn” can only refer to the turn at the roundabout. In particular, the plaintiff’s statement that he was “three to four houses” away was not only responsive to the question but of a level of clarity and specificity that was difficult to challenge.

30. However, the plaintiff gave another version of the accident to Dr Parmegiani.

Comparison of the plaintiff’s evidence to Dr Parmegiani’s report

31. Before considering this evidence, I note that the New South Wales Court of Appeal has repeatedly warned trial judges to exercise caution when placing reliance upon histories taken by medical practitioners. In Gulic v O’Neil [2011] NSWCA 361 at [24] the Court set out the reasons for this caution being necessary:

“Mr Rewell is, I consider, correct in this last submission. I will digress briefly to record some of the inconsistencies that appear in the reports as to post-accident work. In undertaking this task, however, I bear in mind that it is necessary to exercise a degree of caution in relation to placing reliance upon histories taken by medical practitioners. The need for caution in this area has been stated by this Court on a number of occasions: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].”

32. In the present case, however, there can be no challenge to the evidence of Dr Parmegiani, because the defendant had placed Dr Parmegiani under subpoena and proposed to call him to give evidence as to the accuracy of his report of the plaintiff’s statements concerning the circumstances of the accident. The requirement for Dr Parmegiani to give this evidence was dispensed with on the agreement of the plaintiff that the evidence Dr Parmegiani would have given as to the contents of his notes was not necessary, as the accuracy of Dr Parmegiani’s account of what the plaintiff said to him is not challenged. This is an important concession.

33. What Dr Parmegiani had recorded in his report was as follows:

“At the time he was driving his car, a Toyota Camry, while wearing a seatbelt. He remembered that he was driving slowly on Montrose Street in Merrylands West, alone. He was on his way to a McDonald’s restaurant in order to have coffee with a friend, who was driving in the car behind him.

As Mr Colak proceeded along Montrose Street, a car reversed from a driveway and hit the passenger side of his vehicle. The impact occurred at the level of the front wheel arch.

Mr Colak stated that he had not noticed the car approaching before the impact. He was able to remember the impact well, and stated that he experienced no loss of consciousness.

He stated that he felt shocked and surprised and that he was able to recall the loud noise impact. He also felt immediately a sharp pain in his neck and back, as well as in his head and in his right knee.

After stopping the car he alighted slowly. He then sat down and talked to the other driver, an elderly gentleman. His friend, who had stopped behind him, recorded the details of the other driver.” (Report of Dr Parmegiani 7 September 2015, page 13, Exhibit A; emphasis added)

34. The plaintiff was asked at T 102:

“Q. You told Dr Parmegiani that as you went along Montrose Street a car reversed from a driveway and hit the passenger side of your vehicle. Is that correct?

A. INTERPRETER: Yes. Suddenly, quickly just came out.

Q. Came out very quickly, did it?

A. INTERPRETER: I just saw it very quickly, suddenly.

Q. You had no notice. You didn't see the car reversing. How far away when you saw it coming out were you?

A. INTERPRETER: Five to ten metres. It was so quick. I can't recall. When I turn at the roundabout there was no car waiting in front. That car was not there. When I came to the middle he just came very quickly to the middle of the road.

Q. So how many houses, roughly, were there between the roundabout and where this car came out?

A. INTERPRETER: Maybe 40 [sic: probably “four”, or perhaps 40 metres], I don't know. Is it the distance between the roundabout to the house?

Q. The roundabout to where the house that he was reversing out of was.

A. INTERPRETER: I guess maybe ten, 12, 30. I haven't checked.

Q. How many houses were there, if any, in front of you when he started to reverse or you saw him reverse?

A. INTERPRETER: I was somewhere in the middle. That's all I remember. That's just roughly.

Q. Did the impact occur at the front wheel arch?

A. INTERPRETER: The driver was in the middle of the road. I just hit at the other vehicle's left rear side corner. My vehicle on the left side - my left side was damaged all the way down. I tried to save. I just moved towards right but still accident occurred.

Q. Wait a minute. This car is coming out reversing. Is that right?

A. INTERPRETER: Yes.

Q. Where was the impact on your car?

A. INTERPRETER: I don't know how I can show it. I saw his car or her car in a very short period of time. When I saw I attempted to drive right to save the accident, prevent accident. I hit the other car's left rear. My left side of the car was damaged all the way because there was some things. That's all I remember.

Q. You've told Dr Parmegiani that you had not noticed the car approaching before you hit it.

A. INTERPRETER: I don't know how - why should I lie to that, because they write it. I don't understand. I told what had happened. Why should I lie to that? I explain, as I did now.” (T 102-103)

35. He was also asked about his description of what happened after the accident:

“Q. You see, you told Dr Parmegiani that you called some friends and they came to collect you.

A. INTERPRETER: Yes.

Q. And that they drove you in their car‑‑

A. INTERPRETER: No.

Q. Back to your sister's house.

A. INTERPRETER: That's correct but with my car. They drove my car.

Q. You told him that another friend drove your car also to his sister's house.

A. INTERPRETER: I was in the car, okay, and a friend drove my car. The other guy who came with him, he drove his car.

Q. I'm putting to you that that's what you told Dr Parmegiani.

A. INTERPRETER: I don't know how it happened. I'm not lying. I hate lie. I don't know how it was written. Why I should say something happened? I don't know how this occurred. I explained everywhere how it happened, like this.” (T 103)

36. This evidence paints a picture of the plaintiff as an unreliable historian. He has given differing accounts to two careful note takers, namely Dr Parmegiani (his own medico-legal expert) and a police officer and a third version in the witness box. The version in the statement of claim is different again, although that should not be held against him, as it was drafted by his legal representatives.

37. The photographs of the street do not assist the plaintiff. The path he was taking would have given him plenty of warning of a car pulling out of a driveway. There were no obstructions to his view and, as his evidence above shows, he appears to have conceded being able to see a long way ahead as he was driving towards the point of impact.

38. The plaintiff called a witness, Mr Biber, who was in the car immediately behind, and whose description of the accident and point of impact were similarly unreliable.

The evidence of Mr Biber

39. Mr Biber gave evidence in English. He told the Court he had a great deal of experience in relation to motor vehicle issues as he had been driving since he was 16 and was currently 50 years old (T 180) and that, as a security guard, he knew it was necessary to “give accurate statements of events” which required a good memory (T 189). In addition, he was a ranger at Olympic Park and had given evidence in relation to traffic infringements (T 193-194) and was familiar with the need to give accurate evidence. Nevertheless, he had not refreshed his memory from any statement in his possession, contrary to his normal practice (T 194).

40. Mr Biber described the accident as follows:

“Q. So you're driving along at around about 40 - so what happened next?

A. What happened next is I noticed the vehicle pulling out from the driveway, a white vehicle. And as soon as I noticed the vehicle pulling out I then I noticed the vehicle in front of me apply his brakes and immediately swerve to the right in order to miss the vehicle that was pulling out of the driveway. And this vehicle just kept on coming down to the road and ultimately just collided with the other vehicle.

TURNBULL

Q. And the vehicle that had its brake lights on, do you know who owned that vehicle?

A. Yeah, Mr Colak.

HER HONOUR: You didn’t say brake lights.” (T 180)

41. Mr Biber went on to say that he knew the plaintiff applied his brakes “because I saw the brake lights come on” (T 181). He described the location of the accident as follows:

“Q. Whereabouts on the road, assuming there was a centre line in the centre of the road, for example, whereabouts in relation to that line was the impact, Mr Biber?

A. The impact - well, the white vehicle pretty much - like, I'd say approximately half our lane. So the impact would've been way - like, probably around - like, in the middle of the lane.

Q. And which part of the white vehicle hit the other vehicle?

A. The rear - rear side of the white vehicle hit the left‑hand side of the red – red vehicle.

Q. What happened next?

A. Then after that I noticed, like, a - there was a collision. And because I couldn’t park on the left‑hand side, there was cars parked there. So I overtook both vehicles. And then I tried to park on the left which I couldn’t park because of - because of parked cars again. Then I did a U‑turn and came back and parked on the opposite side of the road and I just came out and assisted the - assisted the - both - both drivers.

Q. Had you been to this area before, Mr Biber?

A. In terms of driving through the street?

Q. Before the time of this accident‑‑

A. No.” (T 181-182)

42. Mr Biber was further asked (at T 183):

“Q. Whereabouts was the white car when you first saw it in relation to the road?

A. As soon as I‑‑

Q. In relation to the road, where was the white car when you first saw it, Mr Biber?

A. As soon as I noticed the car he was out on - onto the road. So - yeah, it's pretty much all I can tell you.

HER HONOUR

Q. I'm sorry, "As soon as I noticed the car he was onto the road"?

A. Yeah. Yeah, he was already on the road.” (T 183)

43. He went on to state that the vehicle was already on the road as soon as he noticed it (T 183).

44. He made the following observation as to the defendant’s speed:

“Q. What was that observation?

A. My observation was he was pulling out pretty fast out of his driveway, so I really can't tell you the speed because - yeah.

Q. At any time between when you first saw him and when the accident occurred did you see the other - the white vehicle stop?

A. No, I didn’t.” (T 184)

45. At T 207 Mr Renshaw asked:

“Q. Please correct me if I'm wrong, but you were proceeding at about what speed before this accident?

A. Probably 40, 40 ks.

Q. You were about a car length behind the car in front of you?

A. That's - that's correct.

Q. When the car in front of you was about a car length from the car that came out of the driveway - it suddenly emerged, is that right?

A. That's - that's correct.

Q. In that time a distance of about - what - four metres or so‑‑

A. What are we comparing, the car in front of me to the car that was reversing out?

Q. Yes.

A. What are we comparing the distance to?

Q. Well just a car length - what distance were you behind the car in front of you?

A. Probably three, four metres.

Q. In the space of a split second, when the car emerged from the driveway, the driver in front of you put on his brakes.

A. That's correct.

Q. Is that right?

A. Yes.

Q. Did you put on yours?

A. Yes, I did.

Q. How did you avoid hitting him?

A. I applied the brakes.

Q. Within a space of three metres at 40 kilometres an hour?

A. Yes.

Q. In a fraction of a second?

A. Yes.

Q. See the reaction time is all tabulated for these things, do you understand that?

A. Yes. I've got a good reaction time.” (T 207-208)

46. Mr Renshaw went on to challenge Mr Biber’s computation of distance as follows:

“Q. You see, the maths is very easy, isn't it? At 60 kilometres an hour, you travel 16.6 metres a second. Do you understand that?

A. Yep.

Q. At 40 kilometres an hour you travel at two thirds per second, right. Two thirds of 16 is about 12, isn't it? 11 point something‑‑

HER HONOUR: Just assume that for this question - just assume that it is about 12 kilometres a second that you would have been travelling at 40 ks.

RENSHAW

Q. That's just necessary if you're travelling at that speed, and the car in front of you is three metres away, right?

A. Approximately, yeah.” (T 208)

47. Mr Renshaw went on to ask:

“Q. How soon did your friend come to a halt?

A. Well, he didn't come to a halt. That's the - this is the main point of the story. The car gradually came to a halt. Now, if he came to a full stop, there would have been a different story, but he came to a halt gradually. So it was a, like, it wasn't a complete stop. That's why I had enough time to apply the brakes and not to collide with the rear of his vehicle.

Q. But you applied your brakes.

A. Of course I did, yeah.

Q. So immediately before he applied his brakes, you were travelling three to four metres behind him.

A. That's correct.

Q. How long after he applied his brakes did you apply yours?

A. Probably split second.

Q. And he slowed down and you avoided the accident, yes?

A. Yes. Yep, he - he - he gradually came to a stop and that's how - pretty much - I was able to avoid the accident.” (T 209-210)

48. Mr Biber agreed that the cars were at least three to four houses away when they first saw the defendant’s vehicle (at T 210).

49. When it was put to Mr Biber that this was inconsistent with the point of impact he had marked, he replied “that’s not a point of impact”. He went on to explain that the point of impact was not where the location of the accident occurred (T 211-212), and that he was “just giving the location as to the proximity of where the accident happened” (T 212) within about “5 metres” (T 212).

50. Mr Renshaw asked at T 213:

“Q. So five metres further out.

A. That's just an approximate. It could have been further out, or further in.

Q. Well, why didn't you mark it where you thought it had actually occurred?

A. Nobody told me to mark it exactly on where the accident happened.

Q. Why didn't you put it on the kerb, which is, on any view, anywhere near what you meant by where the accident occurred? Why did you do that?

A. Because just an approximate.

Q. Well, it's misleading, isn't it? Because on your version the accident never occurred close to, in any sense, where you marked it. Did it?

A. That's incorrect.” (T 213)

51. A call was made for the statement that the witness had made to which Mr Biber replied by repeating the question:

“A. Where is it?

Q. Yes.

A. It's - I have a copy at home, but I honestly don't know where it is.

Q. You don't know where it is?

A. No.

Q. When was the last - where would you normally put it?

A. Anywhere. I could put it anywhere.

Q. It's an important document, is it?

A. Yes.

Q. You say yes and you frown. Is it an important document?

A. Sorry?

Q. Is it an important document?

A. It can be.

Q. You think it might be in this case?

A. It can be, yes.

Q. It can be. You haven't got the faintest idea where it is?

A. No, I don't.

Q. When was the last time you had any idea where it was?

A. I obviously can't remember. Probably three months ago, I'd say.

Q. So immediately after you made the document, or took it home with you, you effectively lost it, did you?

A. Misplaced it.

Q. So did you actually look for it?

A. No, I didn't.

Q. So how could you have misplaced it if you didn't look for it?

A. I didn't.

Q. You didn't look for it at all, did you? Is that right?

A. There was no need to look for it, because‑‑

Q. But how can you‑‑

HER HONOUR

Q. Wait a moment. There was no need to look for it because what?

A. Because I know exactly what happened with the incident.

RENSHAW

Q. That's not the point I'm making. The point I'm making is how could you simply say that you've misplaced it unless you looked for it?

HER HONOUR: Sir, you have to answer.

WITNESS: Well, usually when you can't find something, you've pretty much misplaced that item.

RENSHAW

Q. Yes, but you have to have looked for it before you can say that, don't you?

A. Well, in order to know you've misplaced it, of course, yes, you have to be looking for it.

Q. You've never looked for it?

A. I probably have.

Q. Probably? When did you probably last look for it?

A. I can't remember.

Q. Not even a rough guess?

A. No.” (T 213-214)

52. As a ranger with experience in traffic matters, Mr Biber would have been well aware of the need to give precise evidence as to the point of impact. His claim that he had done so only approximately, and that the point of impact could have been up to 5 metres away from the position he had marked, was to my observation an attempt to avoid the consequences of the obvious inconsistencies in his evidence. His evidence of the whereabouts of his statement, whether it was lost, and whether he had looked at it, must also cast doubt upon his credibility as a witness.

53. Having regard to these unsatisfactory responses, I would not regard his evidence in relation to any aspect of the circumstances of the accident to be reliable.

54. I also note that Mr Biber’s explanation for leaving the scene of the accident on the basis that he had to urgently go to Bunnings was implausible, but of this is of little or no significance when compared to the seriousness of his attempts to resile from evidence in chief he had given as to the point of impact of the vehicles.

The evidence of the defendant

55. The defendant provided a statement to the CTP investigators as follows:

“18. I reversed back and I stopped with the back of my car about 1m past the gutter and I looked left and right. There were no parked cars along the opposite side of the road and I cannot recall if there were cars parked along my side of the street.

19. I was stopped for about 1 minute. There were no cars coming from either direction and while I was still stopped, the other car hit me.

20. The other driver did not stop. He kept going for about 15m.

21. I got out of my car and I walked along the road and the other driver was calling his friend to come. I told him to stay there and to give me his license.

22. I wrote down the name of the driver and the number of his car.

23. Then we both left.

24. I was alone in my vehicle and the other driver was by himself.

25. I did not call the Police and the other driver did not want the Police to come, because no person was injured.

26. The other driver was not injured. There was nothing wrong with him and he did not say anything about being injured.

27. The front left side of the other car hit the back right side of my car.

28. The accident happened about 3.30pm.

29. Straight after the accident I went to NRMA Parramatta and I spoke to Christine and reported the accident.

30. The speed limit was 50kph, but the other driver was going much faster than 60kph.

31. I was wearing a seatbelt at the time of the impact.

32. I did not see if the other driver was wearing a seatbelt at the time of the impact.”

56. The defendant’s statement went on to say:

“39. The damage to the other vehicle was to the left-hand front and all along the left side.

40. I did not receive a damage claim for the other party involved in the accident.

41. No public property was damaged as a result of this collision.

42. The driver of the other vehicle was a young man about 34-35. He could not speak English. That’s why he called his friend to write down the name and address.

43. I saw this person get out of his vehicle after the accident and I observed him moving around the accident scene. I did not observe this person to be showing any obvious signs of injury.

44. The ambulance did not attend the accident scene.”

57. The defendant was able to have a conversation with the plaintiff without difficulty. He does not refer to Mr Biber as having been present:

“50. There were no witnesses.

51. The other driver said he was insured with the NRMA.

52. I do not recall any road signage or road works in the vicinity of the accident scene.

53. My visibility was clear as I approached the accident scene and I do not recall anything obstructing my view of the road ahead.

54. The other vehicle was not towed from the scene.

55. I told the other driver I was going to the NRMA and I asked him come with me, but he said he was going home.

56. I have not had any further contact with the other party from this accident.

57. Between the back of my car after it stopped and the other side of the road was at least 5m. So why he hit me. The other car was driving on the wrong side of the roadway. If he had been on the correct side of the road, he would have missed my car.”

58. The defendant’s statement was challenged on the following bases:

1. The estimate of being stopped “for about one minute” was submitted to be clearly wrong.

2. There is no reference to Mr Biber being present.

3. The statement that the other car was driving on the wrong side of the roadway must be incorrect.

4. Although not referred to by the parties, his description of the plaintiff is inaccurate.

59. The value of this statement is substantially diminished by the fact that the witness cannot be cross-examined and these issues addressed. The report the defendant made to NRMA Parramatta does not appear to be in evidence, but this was not the subject of any submissions by the parties.

60. It is puzzling that the defendant does not refer to the presence of Mr Biber and describes the plaintiff as being “a young man of about 34 to 35”. However, Mr Biber appears to have left the accident scene fairly hurriedly, leaving the plaintiff to make telephone calls, and this portion of the evidence may be capable of explanation for this reason. However, the statement given by the defendant is unsatisfactory in terms of being stopped in the street for one minute, and only limited reliance can be placed upon it.

61. The defendant’s statement does, however, confirm that visibility was good and that his vehicle was out on the roadway for some time, however short, before the plaintiff’s car came into view.

Conclusions concerning liability

62. Mr Turnbull SC submitted that the plaintiff was a witness of credit who had given his evidence in a straightforward fashion and who had not been caught out in any obvious lies. Where there were apparent inconsistencies, these should be viewed with caution by reason of the fact that he was giving evidence through an interpreter, as well as for cultural reasons: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186. Mr Turnbull SC also submitted that Mr Biber was a skilled witness whose training meant that his evidence could be relied upon.

63. The plaintiff’s credibility as a witness is challenged on the following grounds:

1. He has given markedly different accounts of the circumstances of the accident, not only in the witness box, but to a police officer and a medical practitioner who were both accurate note-takers. On none of these versions could liability be sheeted home to the defendant.

2. The plaintiff had been less than frank in disclosing previous motor vehicle accidents in his claim form and had exaggerated his symptoms from this accident (this is dealt with in more detail in the section of this judgment on quantum).

3. The evidence of Mr Biber, not only as to the point of impact but on all other issues, was so unreliable that it should be rejected.

64. It is important to examine all of the evidence material to what is seen as the critical facts in issue in this case.

65. Mr Turnbull SC submitted (21 April 2017, T 11) that when persons who have been injured in an accident, the giving of that evidence is “not an exact science” in relation to distances but more a matter of general impression, in this case being that it was “a quick coming out by the car”. Witnesses in these cases are doing their best to recall what occurred some years before.

66. The principal difficulty with the plaintiff’s case is that two witnesses who are both independent and careful note-takers have recorded versions of the event which are as contradictory to each other as they are fatal to the success of the plaintiff’s claim. The police officer has recorded that the plaintiff saw the vehicle exiting four to five houses away, while Dr Parmegiani has recorded that the plaintiff saw nothing at all.

67. For these reasons, independent of the adverse findings as to the plaintiff’s credit which I have made in my observations on quantum, the plaintiff cannot succeed as, on either version of events he gave to the police and Dr Parmegiani, the plaintiff and not the defendant was solely responsible for the accident, and I repeat my earlier findings in relation to each of these inconsistencies as set out above.

68. I am satisfied that the plaintiff saw the defendant had backed out and stopped ready to move forward and, rather than stop his own car, endeavoured to go around him, misjudging the distance. This is the most likely explanation for the pattern of impact of the two vehicles and is effectively what is described by the defendant, who clearly states that he was stopped.

69. The driver of any vehicle must not reverse the vehicle into the roadway unless he or she can do so safely. When reversing out of a driveway out onto a roadway where others have right of way, a driver must exercise particular care. This requires reasonable attention to all that is happening on and near the roadway that may present a source of danger.

70. As the driver arrives at the final point of reversal, as was the case here, that vehicle becomes the vehicle which has the right of way. Other vehicles using the road at the stage at which the defendant’s vehicle was, namely with the vehicle stopped in the middle of the road, need to slow down or even stop in those circumstances, particularly where, as was the case here, there is a clear line of vision ahead sufficient for the vehicle to come to a stop: Marien v Gardiner [2013] NSWCA 396 at [33]–[37] and in Dungan v Chan [2013] NSWCA 182 at [15]; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

71. The defendant, who had backed out and stopped in the middle of the road, was entitled to assume that the plaintiff would act in a non-negligent manner: Dungan v Chan at [15]. It was not reasonably foreseeable that the plaintiff, who could see the defendant’s car with sufficient time to stop, would continue to speed to overtake a vehicle which was, at the time, stopped in the middle of the road for the purpose of proceeding forward.

72. The defendant’s duty of care was not to reverse the vehicle unless he could do so safely, and to have regard to all that was happening on the roadway in the vicinity of his vehicle (Hawthorne v Hillcoat (2008) 51 MVR 523 at [47]). I am satisfied that the defendant was not in breach of that duty.

73. On the alternative scenario (namely the version given by the plaintiff to Dr Parmegiani), the same principles would apply, but with the added difficulty for the plaintiff that he acknowledges that he did not even see the defendant’s vehicle.

74. Accordingly, there will be judgment for the defendant.

Contributory negligence

75. Very little was said about this issue by either party. Where a driver on a roadway sees a person or another car and fails to give way, findings of 70% and more have not been disturbed on appeal: Vale v Eggins [2006] NSWCA 348. In the present case, the plaintiff had none of the mitigating factors available in those proceedings, where an inebriated young man who appeared to have moved out of the way of the defendant’s vehicle jumped back in front of it at the last minute.

76. Taking into account the degree of culpability established by the defendant, I would have assessed contributory negligence at 75%.

77. In the event that I have erred in relation to these findings, I set out below a brief summary of the findings I would have made in relation to quantum concerning past and future care and out of pocket expenses.

Quantum

78. The plaintiff’s claim for past and future care and out of pockets needs to be seen through the prism of his long and complex medical history of injury, starting with a motor vehicle accident on 24 March 1997 which led to his being unable to work for two years. While I have little information about the 1997 accident, Dr Maxwell notes that the plaintiff was award $280,000 gross for pain in his neck, thoracic spine and lumbar spine (Exhibit 18, tab 6, p 3).

79. The plaintiff returned to work one year after this settlement, in 2000, and was able to work as a self-employed bricklaying supervisor. However, he suffered a significant injury in 2001 when some scaffolding he was standing on collapsed, causing him to fall backwards onto rubble one metre below. He has remained off work since that time. He was initially given workers compensation payments and later went on to the disability pension.

80. He suffered a third accident on 12 March 2007, when his vehicle was hit from behind. This appears to have caused some exacerbation of his pre-existing symptoms, as did a second motor vehicle accident on 12 August 2011, when an accident occurred in similar circumstances to the accident the subject of these proceedings, in that a car reversed out of a car parking space and struck his vehicle. He commenced proceedings but was only awarded $11,000, from which I infer that his injuries were of a soft tissue nature.

81. The plaintiff saw Dr Emin shortly after the accident the subject of proceedings, who prescribed medication and arranged for investigative reports. Since that time the plaintiff has experienced numbness in his hands and legs, as well as some aching. His neck is stiff and he says he is unable to walk for more than 10 to 15 minutes. He is unable to play soccer and has to see the orthopaedic surgeon every two months for certificates “stating he is unfit for work” (Dr Maxwell, 25 June 2015), although I suspect this relates to his disability pension.

Schedule of damages

82. Mr Turnbull SC provided the following schedule of damages:

Past care:

12.1 hours per week unpaid assistance at

$27 per hour

= $303.75 per week for 122 weeks

= $39,857.40

Future care expenses:

12.1 hours per week at $27 per hour

= $326.70 per week

Plaintiff is currently 56 years of age.

Allowing $327 per week to age 80

= $324/week x 737.8 multiplier

= $241,039.26

Past treatment expenses:

Extra expenses incurred as a result of the subject accident of October 2014.

Medication $12.64/week

Dr Emin $15/week

Dr Mohammad $9/week

Total per week = $36.64/week

For calculations see attached spreadsheet

Total out of pockets = 122 weeks x $36.64 =

$4,470.08

Future treatment expenses:

Increased GP attendances, increased analgesia intake: cushion

$25,000.00

83. The defendant’s schedule of damages contains the following:

Category	Calculation	Amount allowed
Past losses
Past out-of-pocket expenses	$751.50 (payments made pursuant to section 83 Motor Accidents Compensation Act only)	$751.50
Past domestic assistance	Nil (would not exceed threshold)	Nil
Future losses
Future out-of-pocket expenses	Nil	Nil
Future domestic assistance	Nil	Nil
TOTAL	$751.50	$751.50

Dr Bodel and Dr Zeman’s reports

84. The high point of the plaintiff’s medical evidence is the opinion of Dr Bodel, who had the advantage of having seen the plaintiff twice before, on 5 February 2003 and 2 August 2006, in relation to his previous injuries. Dr Bodel considered that the plaintiff’s “longstanding pathology” (report of 4 August 2015, p 6) had been exacerbated by ongoing pain and stiffness in his neck and back associated with the injuries to those areas caused by the motor vehicle accident. He confirmed the general practitioner’s diagnosis of soft tissue injuries (p 4) aggravating his previous condition, and in a subsequent report, he attributed 50% of the plaintiff’s whole person impairment to the previous accident (report of 4 August 2015, p 2). Dr Bodel revised this opinion in his report of 5 October 2016, noting significant errors in the letter of instruction from the solicitors for the plaintiff, who had advised him that the plaintiff “made a good recovery from this condition” (namely the 2001 injury) or concerning the two motor vehicle accidents in 2007 and 2011 (report, 5 October 2016, p 3). He goes on to state that the diagnosis is “very difficult” in that the plaintiff “has widespread complaints but minimal signs of structural damage” (report, p 6). He considered there was “probable” further aggravation of his previous problems (p 6 of the report).

85. These were significant omissions and Dr Bodel does not expose his reasoning to demonstrate how he has factored in this new information. The unhelpful and inadequate letter of instruction from the plaintiff’s solicitors has robbed these reports of accuracy and, therefore, they are of little assistance to the Court. I also note my observations concerning Dr Bodel’s comments on the occupational therapy report. Not only are Dr Bodel’s observations general in the extreme (for example, he states “I do agree in principle with his domestic assistance needs”), but still contain errors of fact, such as the statement that the plaintiff was not receiving “any” domestic assistance at that time (report, p 8). I also note that Dr Bodel incorrectly named the occupational therapist as Ms Dawson, when she is in fact a Ms Smith.

86. Dr Bodel’s final report comments upon Dr Zeman’s observations as to the plaintiff’s need for domestic assistance. These observations are set out in four sentences on p 2 of his report, the first two of which consist of a statement of Dr Zeman’s diagnosis and a third of which consists of Dr Bodel’s repetition of his own diagnosis. He then concludes:

“This extensive report from Dr Zeman does not cause me to alter the assessments previously given.”

87. Statements of this sweeping or “oracular” nature (Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59] and [87]) should not be accepted where they have been expressed without adequately reasoned exposure of the kind required for expert evidence: see r 31.27(1)(c) and Sch 7, cl 5(1)(c) Uniform Civil Procedure Rules 2005 (NSW).

88. Taking into account the omissions in Dr Bodel’s earlier reports of essential medical information due to the inadequacies of his letter of instructions and the failure to expose his reasons for disagreeing with Dr Zeman, I consider Dr Bodel’s report to be unreliable for the purposes of resolving the disputing issues of fact in relation to quantum and consider his opinion should be given no weight.

89. I am conscious of the New South Wales Court of Appeal decision in Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 and Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139. This brings me to the report of Ms Lucinda Smith of 8 September 2015.

The occupational therapist’s report

90. Ms Smith, the occupational therapist, was given even less information than Dr Bodel. The schedule of reports she sets out at the back of her report (p 15) consists of four x-rays of the plaintiff’s spine and the report of the plaintiff’s general practitioner of 11 May 2015. The contents of her letter of instruction are set out in paragraph 3 and consisted of being asked to set out “the claimant’s past and future care requirements” and “any other matters relevant in your opinion”.

91. I also note that Ms Smith was told that the plaintiff’s injuries were “bilateral shoulder injuries”, a right knee injury and psychological sequelae. She was not even given an accurate description of the injuries the plaintiff suffered in this accident.

92. Mr Colak’s solicitors’ instructions to her about the plaintiff’s prior health and activities are inaccurate. He is described as having “actively contributed to the running of the household” and as having briefly mentioned “a previous work related injury to his neck and back” on a date which was not specified. Ms Smith was told simply that the plaintiff had been living with his sister (since becoming unemployed). He told her that he did not require any assistance from his sister prior to the accident and that he was “another part of the family” (report, p 5). He even stated that he exercised regularly.

93. Based on all this wrong information, Ms Smith has provided what she calls a “short report” in which she essentially sets out the plaintiff’s lists of tasks that he can and cannot do, without any reference to any other source of disability other than the accident in question. She concludes that Mr Colak spent 24.4 hours engaged on household activities prior to the accident, and considered he now required 12.1 hours per week of domestic assistance since the accident. This consists of 10.4 hours of assistance with shopping and internal domestic and household tasks, and 1.7 hours per week or gardening and car cleaning assistance.

94. The information given to Ms Smith not only by the solicitors for the plaintiff but by the plaintiff himself (as she notes in her report) are so far removed from the facts of this case as to render her opinion valueless: Makita (Aust) Pty Ltd v Sprowles. The plaintiff must be taken to have known his prior health condition and the circumstances in which Ms Smith was given misleading information by the plaintiff about his health detracts substantially from his credit as a witness in relation to his evidence of ongoing disabilities as well as concerning quantum.

95. There is, however, one issue upon which the report prepared by Ms Smith casts some light. She had the advantage of going to the plaintiff’s sister’s home, which meant she could have interviewed Ms Hasan (named on p 5 of the report) and the movements of “her family” as to what work they were doing. She had the opportunity to inquire whether the plaintiff had shared the household tasks with his sister as claimed (p 5) and whether he did in fact wash both cars, clean the bathrooms, prepared “complex meals” and carried out the vacuuming, sweeping and mopping, as well as gardening and shopping.

96. Contrary to this picture of a happy family life where the plaintiff made a significant contribution to household activities, the plaintiff’s solicitors on 21 August 2013, in relation to an earlier motor vehicle claim that the plaintiff would make a claim for future domestic assistance on a paid care basis effective from the time when he moved out from his sister’s home (21 August 2013), and that he had “received assistance from his sister, brother in law and nephew” since the date of that accident; that future paid claim was for 3 hours per week (Exhibit 18, tab 11, p 1-3). That letter states categorically that the plaintiff was not able to assist his sister and brother-in-law as he used to do before the accident.

97. Ms Smith, of course, was unaware of any of this prior history, or of the fact that the plaintiff had in fact moved out of his sister’s home for approximately six months in the year prior to the accident, apparently as a result of personal disputes. She was only told that the plaintiff had developed pain in his neck and lower back in or about 2001 which was “treated conservatively by Dr Emin” and that the plaintiff “made good recovery from this condition” (Exhibit 18, tab 14, p 2). Mr Renshaw called this a “boldfaced falsehood” (T 242), which I consider to be a not unreasonable criticism of the manner of preparation of the plaintiff’s claim.

98. Many of these inconsistencies were picked up by Dr Zeman in his report of 19 July 2016 (Exhibit 18, tab 7). He noted that the plaintiff was not a reliable historian in that he inconsistently claimed to have been dependent on his sister for domestic tasks and living with her, while also claiming to be living in his car for several months. Dr Zeman also noted the similar claims of reduced function, pain and need for medication in relation to the 2011 claim, as well as the lack of interruption to the plaintiff’s ability to drive and travel overseas.

Dr Maxwell

99. Dr Maxwell, for the defendant, was considerably less charitable, noting that the plaintiff presented with “numerous paradoxical physical signs” and concluding that there was no significant pathological cause for his alleged disability arising from this accident (Exhibit 18, tab 6, p 6). He noted that the same pain medication regime in place before the accident, including Panadeine Forte, was in place after the accident as before.

Evidence of the plaintiff’s sister and the plaintiff

100. The plaintiff stated that he was now totally reliant upon his sister to perform household tasks whereas he has performed these tasks himself beforehand (T 35 et passim). Ms Hasan’s evidence was that before the accident the plaintiff was helping her, not because he was able to, but because she expected it as he was not paying rent:

“Q. You had never needed to assist him. Is that right?

A. I wasn’t doing nothing. He was helping me because he wasn’t paying rent so he was doing it.” (T 133)

101. However, in cross-examination it transpired that the plaintiff’s help consisted largely of keeping the bedroom he occupied tidy and helping on occasion with household tasks of a simple nature. This witness’s concessions in cross-examination demonstrated that the plaintiff’s contribution to housework now was more or less what he was doing before the accident. What assistance she gave clearly fell below the threshold for past home care and, taking into account the inadequacies of the occupational therapist’s report and the concessions of Ms Hasan, I do not consider any award should be made for this.

102. As to future care, the plaintiff’s own evidence in relation to some household tasks that he said he could not now perform was implausible. Mr Renshaw particularly pointed to the evidence the plaintiff gave that he could not now even make his own bed, and that his sister had to remake it if he tried to do so (T 39). He also asserted he was not now able to make himself a sandwich (T 32).

103. At T 142, it is noted that, when Ms Hasan left the witness box, she made some additional comments as she left the court:

“Q. Yes, you can be excused from any further attendance so that’s it. You can go. But we’re keeping your statement.

A. Okay. One thing, can I tell?

Q. No, don’t say anything. Off you go. The solicitor for your brother will explain everything, won’t he? He’s nodding. So you can leave the witness box. You can take the water with you.

A. I want to kick him out. I don’t want him with me anymore.

Q. You don’t want him to live. Gentlemen, gentlemen.

A. I don’t want him‑‑

Q. Gentlemen, did you hear that?

TURNBULL: I’m sorry?

HER HONOUR: She just said I want to kick him out. I don’t want him to live there anymore. Up to you what you do about that but that’s a statement that’s’ been volunteered by the witness. I understand what you’re saying but gentlemen‑‑

A. I’m going to kick him out because I can’t take it anymore.” (T 142-143).

104. This late-proffered evidence does create complications. It would appear that the plaintiff cannot assume he is welcome to remain in his sister’s home in the future. I have accordingly taken that into account when assessing future care.

105. Even allowing for the plaintiff’s future care to be assessed on a paid commercial basis, I consider that nearly all of his ongoing future disabilities relate to his long-term pre-existing injuries. Dr Bodel’s estimate of 50% is an overestimate of the impact of these injuries. A better estimate would be 90%.

106. In addition, the facts of this case would require a significant deduction for future care by reason of the impact of the aging process: Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95. Stopping the plaintiff’s assistance at the age of 80 is insufficient, particularly on the facts of this case, where that process of aging and disability has already started. If making any award, I would make the same adjustment of 40%.

107. Taking all of the above into account, I would award a lump sum for future paid care of $20,000. My contributory negligence findings would need to be taken into account in relation to this figure and also to past and future out of pocket expenses.

Out-of-pocket expenses

108. The plaintiff had been taking strong pain medication since about 2001. The claim for past and future out of pockets is a mathematical exercise, where what the plaintiff’s solicitors have done is to set out the difference between before and after and taken the different amount asserted to have been expended on Panadeine Forte and Antenex after the accident, as well as an asserted difference in the number of doctors’ visits.

109. This is a very artificial approach to the determination of out of pockets which is unsupported by medical evidence.

110. I am satisfied that the plaintiff would have needed to increase his pain medication and see his medical practitioner about the impact of the motor vehicle accident. Rounding up the plaintiff’s figure to $4,500, that would be an appropriate amount for the past, and a similar figure would be appropriate for the future, given that the plaintiff’s ongoing problems have, in my view, largely resolved. Accordingly the amount I would have awarded would be $9,000.

Costs

111. At the request of counsel for the defendant I have reserved the issue of costs with liberty to apply.

Orders

1. Judgment for the defendant.

2. Costs reserved.

3. Liberty to apply in relation to costs.

4. Exhibits retained for 28 days.

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Decision last updated: 30 May 2017