Dow v Elbarbary

[2017] ACTSC 418

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dow v Elbarbary

Citation:

[2017] ACTSC 418

Hearing Dates:

11–12, 14 December 2017

DecisionDates:

19 December 2017, 1 February 2018

Before:

Murrell CJ

Decision:

See [174]–[175]

Catchwords:

CIVIL LAW – PERSONAL INJURY – DAMAGES – Motor Vehicle Accident – assessment of damages – whether and when plaintiff recovered from initial injury – whether plaintiff continued to experience physical and psychological sequelae from the accident – whether plaintiff had recovered – whether treatment claimed by plaintiff related to pre-existing lower back condition

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 100

Cases Cited:

Cressy v Miloriad (No 2) [2016] ACTSC 339; 317 FLR 267

Griffiths v Kerkemeyer (1977) 139 CLR 161

Grincelis v House [2000] HCA 42; 201 CLR 321

Lumley v Sainsbury [2017] ACTSC 40
Seta v Baker [2012] ACTSC 75
Utting v Clarke [2016] ACTSC 168

Wainwright v Lee [2013] ACTSC 191

Parties:

Louisa Dow (Plaintiff)

Mahmoud Elbarbary (First Defendant)

Insurance Australia Ltd t/as NRMA Insurance (Second Defendant)

Representation:

Counsel

Mr D Crowe (Plaintiff)

Mr P Deakin QC with Ms O Dinkha (First and Second Defendants)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

HWL Ebsworth (First and Second Defendants)

File Number:

SC 468 of 2016

MURRELL CJ:

The claim

1. On 12 August 2014, the plaintiff was driving home from work.  Her vehicle was stationary in a slip lane for traffic turning from Parkes Way onto Caswell Drive in Belconnen, ACT.  As the plaintiff was looking in her right rear-view mirror, the first defendant’s vehicle collided with the rear of the plaintiff’s vehicle.  The plaintiff conceded that the impact was “not a major impact”.  The airbags in the plaintiff’s vehicle did not deploy and the only significant damage was to the rear bumper bar.  The plaintiff’s experience of the impact was that she was jolted forward into her seatbelt and then back into her headrest.  The plaintiff sustained a whiplash injury.

1. The defendants admitted that the first defendant breached his duty of care.

1. The matter went to hearing on the question of damages.

1. The plaintiff claimed that she suffered the following significant injuries and disabilities:

(a)Musculoligamentous injury to the cervical and thoracic spines, which limited her capacity to engage in full-time work, domestic tasks and recreational activities.

(b)Anxiety/phobia about travelling in motor vehicles.

(c)Other psychological sequelae of the accident, including physical reactions to stress such as bruxism, sensations of tinnitus and ear congestion.

Issues

1. The issues were whether and when the plaintiff recovered from the whiplash injury and related disabilities, particularly the related psychological injuries.

1. The plaintiff said that she continued to experience significant physical and psychological sequelae from the accident and could not work more than four days a week. 

1. The defendants said that the plaintiff recovered within, at most, six months of the accident (by about February 2015).

Plaintiff’s credibility

1. The defendants raised a number of matters that were said to reflect adversely on the plaintiff’s credibility.  

1. The matter that was pressed most strenuously was the plaintiff’s…