Dow v Elbarbary

Case [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…

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AGLC
Dow v Elbarbary [2017] ACTSC 418
Case
[2017] ACTSC 418
Decision Date

CaseChat Overview and Summary

In the matter of Dow v Elbarbary, the plaintiff sought damages for personal injury arising from a motor vehicle accident. The case was heard in the Supreme Court of Victoria. The primary focus of the dispute was the assessment of damages, particularly regarding the plaintiff's recovery from the initial injury and the extent of physical and psychological sequelae experienced post-accident. The plaintiff argued that they had not fully recovered and continued to suffer from both physical and psychological effects of the accident. The defendant contested these claims, asserting that the plaintiff had recovered from the initial injury and that any ongoing treatment was related to a pre-existing lower back condition.

The court was tasked with determining the extent of the plaintiff's recovery, the nature and duration of any ongoing physical and psychological effects, and the relevance of the plaintiff's pre-existing condition. The court considered medical evidence and expert opinions on the plaintiff's recovery trajectory and the impact of the accident on their overall health. The analysis involved a detailed examination of the timeline of recovery, the persistence of symptoms, and the differentiation between conditions exacerbated by the accident and those that predated it.

The court found that the plaintiff had made a significant recovery from the initial injury, but there were still residual effects that impacted their quality of life. The court held that the plaintiff had not fully recovered from the psychological effects of the accident, which were distinct from the pre-existing lower back condition. The court also determined that certain treatments claimed by the plaintiff were related to the accident rather than the pre-existing condition. Based on these findings, the court calculated the appropriate damages, considering both the physical and psychological impacts of the accident.

The final orders of the court were that the plaintiff was awarded damages for the ongoing physical and psychological effects of the accident, taking into account the pre-existing condition and the plaintiff's recovery progress. The specific amounts and further details of the damages were outlined in the court's judgment.

Orders

Orders of the court

See [174]–[175]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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