El-Hassan v Stewart - [2019] NSWDC 480

District Court

New South Wales

Medium Neutral Citation: El-Hassan v Stewart [2019] NSWDC 480
Hearing dates: 31 July 2019; 2, 5, 6, 7 and 14 August 2019
Date of orders: 10 September 2019
Decision date: 10 September 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff for the sum of $18,094.27.
(2) Costs reserved with liberty to apply.
(3) Exhibits retained for 28 days.

Catchwords: TORT – personal injury – Motor Accidents Compensation Act 1999 (NSW) – contributory negligence – assessment of damages – conflicting medical opinions – absence of tax returns – whether attendant care services claim met the threshold – no issue of principle
Legislation Cited: Civil Liability Act 2002 (NSW), s 5R
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Motor Accidents Compensation Act 1999 (NSW), ss 126 , 138 and 141B
Cases Cited: Amoud v Al Batat (2009) 54 MVR 167
Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443
ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193
Falco v Aiyaz; Falco v Falzon (2015) 71 MVR 454
Giorginis v Kastrati [1988] 49 SASR 371
Gordon v Truong; Truong v Gordon [2014] NSWCA 97
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
State of NSW v Moss [2000] NSWCA 133
The Nominal Defendant v Kostic [2007] NSWCA 14
Volzhenin v Haile 2007 BCCA 317
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Category: Principal judgment
Parties: Plaintiff: Fadi El-Hassan
Defendant: Christine Stewart
Representation:
Counsel:
Plaintiff: Mr M Sciglitano
Defendant: Mr M Nesbeth
Solicitors:
Plaintiff: Brydens Lawyers
Defendant: McCabe Curwood

File Number(s): 2019/3798
Publication restriction: None

Judgment

The plaintiff’s claim for damages

The plaintiff, by statement of claim filed on 4 January 2019, brings proceedings for damages for personal injury after he was struck by a vehicle driven by the defendant along South Dowling Street, Eastlakes, New South Wales shortly after 8:00pm on 7 July 2015.
The circumstances of the accident were follows. At about 8:00pm, the plaintiff had been driving along a stretch of the M1 motorway in lane 3. When he moved to lane 2, he was “sideswiped” by another vehicle travelling in lane 3. Both cars pulled to the left side of the road to the emergency lane to park.
The plaintiff opened the door to his vehicle onto the roadway. He then walked around the open door and towards the other car. He was standing with his left side to his car, which meant he had his back to the traffic. He did not look at the oncoming traffic (which was behind him), He said he was extremely angry and shouting obscenities as well as gesticulating at the other driver. The next thing he knew, he had been hit on the buttock from behind and was knocked to the ground.
The defendant was travelling in lane 1 along the M1 motorway at the sign posted speed limit for that road (80 km/hr). As she approached the overpass near Lenthall Street, she saw two cars parked in the emergency lane ahead of her on the left side of the road. As she continued forward, she saw the door on the car closer to her open and, when she was approximately 100 metres away, a man (the plaintiff) step out, facing south, the direction she was travelling in. He then stepped around his car door and, from 100 metres away, she swerved into lane 2. Her nearside wing mirror hit the plaintiff, who was knocked to the ground.

The issues in the case

Breach of duty of care is admitted by the defendant. The issues accordingly are:

contributory negligence; and

Damages in the form of past and future economic loss and home care (the plaintiff is not entitled to non-economic loss); and

An agreed sum for past out-of-pocket expenses and an amount for such expenses in the future.

Contributory negligence

The particulars of contributory negligence pleaded are:

The plaintiff positioned his stationary vehicle in a dangerous position;

The plaintiff failed to position his stationary vehicle wholly within the emergency lane;

The plaintiff failed to activate his hazard lights;

After exiting his stationary vehicle, the plaintiff failed to keep himself wholly within the emergency lane;

Straying into the first defendant’s lane;

Walking into the path of the defendant’s vehicle; and

Failing to keep a proper lookout.

The main factual issues in contention on this issue are:

Whether the plaintiff was standing or walking in the emergency lane at the time of collision, or had gone out onto lane 1; and

How far apart the cars parked by the roadside were (in that the plaintiff claimed to have been standing between them when he was hit).

Where was the plaintiff standing at the time of the accident?

As the plaintiff had his back or side to the oncoming traffic and did not see the defendant’s car coming, his description of the accident is limited.
The plaintiff remained adamant, both in his statements as well as in his evidence, that he was standing “in between the two cars talking” to the other driver (Exhibit, 8 June 2016, Exhibit 11), namely within the emergency lane. He made a similar statement to Dr Graham George, a consultant psychiatrist, on 9 April 2018, when he said he was “standing between the two cars when a third car struck him” (Exhibit 9, p 15).
He gave the following evidence at T 21 lines 10-18:

“A. Well, I've, as I said, turned on my hazard lights. I've exited the vehicle. I've quickly closed the door, gotten out into - there was a line. I was on the inside of the line, and because the guy - I remember specifically the guy was a fair way up and as he was exiting the vehicle I threw my hands in the air as if to say, "What are you doing", because at the time because there was such a distance between us I thought he was going to drive off. Ended up driving off anyway but - and then that's when I remember I was struck. I was struck in the left buttock because I was facing that way. I wasn't facing the traffic. I was facing that way.”

He repeated this at T 21 lines 21-23:

“A. Facing towards the barrier. As the car was parked, the cars were parked, and I was facing that way. I was on the inside of the line, and that's pretty much - after that that's what happened. That's‑‑”

The plaintiff’s evidence is that the defendant’s vehicle came into the emergency breakdown lane, struck him, and then drove out again without hitting the other motorist’s vehicle parked in front. This means that the defendant’s vehicle would have had to miss the plaintiff’s open car door, enter into the emergency lane where the plaintiff was standing talking to the other driver who was getting out of his car (T 21), struck the plaintiff without striking anyone else or the other vehicle and gone on to stop further up the road.
The plaintiff said that he had walked about 7 metres ahead of his own car, standing roughly halfway between the two vehicles (T 68), facing the rail when he was struck by the defendant’s vehicle (T 67). It would, however, have been impossible for the plaintiff if he was indeed standing some 7 metres in front of his car and looking to his left to look at the damage to his own vehicle which he inconsistently claimed he was doing while approaching the other driver and shouting at him.
Even if I were to accept the plaintiff’s evidence that there was a distance of 15 to 20 metres between the two vehicles involved in the initial collision (see T 20 and 55), the plaintiff’s description of the defendant’s vehicle’s manoeuvre is not possible for a vehicle travelling at any significant speed, let alone at or below the 80 km/hr speed limit of the M1. It is difficult to see how the plaintiff could have been struck if he were indeed standing inside the white emergency lane, 7 to 10 metres in front of his own vehicle.

The defendant’s description of where the plaintiff was

The diagram drawn by the defendant in the witness box shows the plaintiff’s vehicle, a Mercedes Benz, was parked very close to the edge of the emergency lane. When the plaintiff opened his car door to get out, that door was opened out onto lane 1 of the traffic. This is what the defendant saw when she was about 200 metres from the parked car.
However, the plaintiff did not simply get out of his vehicle, but moved around the door, which meant moving further into lane 1. The defendant’s evidence is thus that the plaintiff was hit while standing in lane 1 of the traffic with his back to the traffic.
The defendant described how she saw the plaintiff step out from behind the open door of his car when she was less than 100 metres away, because he only opened the door when she was about 100 metres away:

“Q. Then what happened after that?
A. As I was driving, still south, the car door opened of the car closest to me, and a man stepped out.
Q. If I could just take you a step back. How far away from that car were you when you saw the door open?
A. Maybe about 100 metres.” (T 414, lines 1-7)

She described the accident occurring as follows:

“Q. I think you mentioned the door opened.
A. Yep. The door opened and a man stepped out. Standing, facing forward, so facing South, the direction I was travelling in.
Q. Then what happened?
A. I moved my, or I adjusted my car into - away from the door, so towards the second lane. As I was - kept driving, closer to the car and the man, the man took a step around his car door to - to - in - in - from my mind, appeared to look at the front of his car. At that time I - I swerved into lane 2, but my side mirror hit the man.
Q. Then what happened?
A. Then I - I was driving, still driving. I looked in my rear‑vision mirror. I could see between the two cars that were on the side of the road, obviously, the man, lying on his back with his - so I could see his feet were up, all I could see was his legs and his feet. And so I - obviously, I pulled over and I got out of my car and ran back.” (T 414, lines 19-35)

The defendant repeated this evidence in cross-examination.
The defendant said that the part of her vehicle which struck the plaintiff was not the vehicle itself, but the nearside wing mirror:

“Q. But you didn't slow down at all. You just kept driving at 80 kilometres per hour.
A. And as I think I said, as the car door opened I moved into the other lane to provide room.
Q. It's fair to say that when you were travelling at 80 kilometres per hour and you approached this car, you thought you had enough room to pass, didn't you?
A. Yes.
Q. In hindsight that wasn't the case.
A. That's because the man stepped around his car door, took a step closer to my car.
Q. But you saw him 100 metres before you got to the door.
A. He was safe for me to pass while he stood behind his car door. He then took a step to the right of his car door, closer to me travelling south. He appeared to be looking at the front of his vehicle at that time.” (T 423-424)

As is clear from the above, the defendant believed she would have cleared the open car door. The problem was that the plaintiff, when she was approximately 100 metres away, walked beyond the door and further into lane 1, which resulted in her car striking him with the nearside wing mirror.
A photograph of the damaged nearside wing mirror was tendered. While it was put to the defendant that some scrap marks on her front nearside bumper were caused by the accident, this was much lower down on the vehicle. This could not be the source of the impact, as there was no question of the plaintiff suffering an injury to the lower portion of his leg. As is made clear in the Fairfield Hospital Emergency Department referral (Exhibit 9, p 78), he was hit on the left buttock. His left buttock would have been at the same level as the nearside wing mirror. Nor is it likely that there were two impacts, namely one with the nearside wing mirror and one with the near side bumper, given the injuries suffered. There is no evidence tendered to suggest the scrap marks on the front nearside bumper were as a result of the defendant hitting the car parked in front of the plaintiff’s vehicle in the emergency lane.

Conclusions concerning the plaintiff’s position at the time of the accident

The plaintiff’s evidence about the location of the accident, as well as his own position, was vague. When asked to mark where the accident occurred (on Exhibit J), he marked part of the roadway which was later acknowledged to be on the wrong side of the road. He insisted the two cars were 25 metres apart, and that he was standing in the emergency lane between the two cars.
The defendant said that she did not slow down after she saw the cars parked on the side of the road and agreed that, with the benefit of hindsight, she should have done so (T 422). However, the defendant had clearly positioned her car so as to clear the open car door prior to the plaintiff stepping out. The issue is what the defendant should have done when the plaintiff stepped out from behind his car door further onto lane 1 of the M1.
Mr Nesbeth points out that, at 80km/hr, a vehicle travels a 22.2m/s and that even at 70km/hr, a vehicle covers 19.44m/s. On either of these estimates, one second would be enough to cover the distance estimated by the plaintiff of 15 to 20 metres in a straight line. When the plaintiff stepped out around his open door 100 metres away, the defendant moved into lane 2, but did so too late to avoid her side mirror striking the plaintiff.
Swerving in to hit the plaintiff and then swerving out again is not possible in such a short time and space. I am satisfied that the plaintiff was standing or walking beside his vehicle, well into lane 1 of the M1 motorway (which is similar to the description he gave to MAS Assessor Dr McGlynn, Exhibit 9, p 63), and that he was struck by the defendant’s left front mirror while in lane 1 (which is the description given in the Medical Assessment Review Panel report, Exhibit 9, p 70).

The relevant statutory provisions concerning contributory negligence

Section 138 of the Motor Accidents Compensation Act 1999 (NSW) provides:

“138 Contributory negligence--generally
(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
(2) A finding of contributory negligence must be made in the following cases:
(a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident,
(b) where:
(i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and
(ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment,

unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle,
(c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so,
(d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so.

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.
(4) The court must state its reasons for determining the particular percentage.
(5) For the purposes of this Act, a deceased person is taken to have been convicted of an offence if any circumstances exist in respect of the deceased person which, but for the deceased person's death, would have resulted in the conviction of the deceased person for the offence or the proving of the offence against the deceased person.
(6) This section does not exclude any other ground on which a finding of contributory negligence may be made.
(7) For the purposes of this section, an “alcohol or other drug-related offence” is:
(a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person's breath or blood, or
(b) an offence of driving a motor vehicle under the influence of alcohol or other drug, or
(c) an offence of causing death or injury while driving a motor vehicle under the influence of alcohol or other drug, or
(d) an offence, in connection with the driving of a motor vehicle, of:
(i) refusing or failing to submit to breath analysis, to undergo a breath test, to submit to an assessment of sobriety or to provide samples of the person's blood and urine, or
(ii) wilfully altering the concentration of alcohol or other drug in the person's breath or blood, or
(iii) preventing a sample of the person's blood from being taken for analysis.”

Section 5R of the Civil Liability Act 2002 (NSW) provides:

“5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

Section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) provides:

“9 Apportionment of liability in cases of contributory negligence
(1) If a person (the “claimant”) suffers damage as the result partly of the claimant’s failure to take reasonable care (“contributory negligence”) and partly of the wrong of any other person:
(a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

(2) Subsection (1) does not operate to defeat any defence arising under a contract.
(3) If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.”

In Gordon v Truong; Truong v Gordon [2014] NSWCA 97, Basten JA explained at [15]:

“15 The principles applicable in determining whether a person has been negligent include the “General principles” set out in s 5B. Applying these principles as required by the statute is not without its difficulties. Where the plaintiff and defendant are both drivers in control of similar vehicles, questions of negligence and contributory negligence can readily be assessed according to the same broad standards. However, where the plaintiff is a pedestrian and the defendant a driver of a vehicle, the negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is, generally, to be assessed against a risk of harm to him- or herself. (It is possible that the carelessness of a pedestrian may create a risk of harm to other drivers, for example, if a car is forced to swerve to avoid a pedestrian, but that is not this case.) The harm which the motor vehicle is likely to cause to the pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.”

Parking in an emergency lane, which is a narrower lane than ordinary traffic lanes, is a step that should be taken with caution because the nature of the emergency lane is that it should be used for emergencies only. By opening his car door into the path of oncoming traffic, in that it significantly protruded into lane 1, the plaintiff was creating an obstacle for the oncoming traffic:

“Q. Does it not follow then, that if that car door was open, that that car door would be protruding significantly into the lane?
A. It would be protruding into the lane, yes.
Q. Do you accept that it would be protruding significantly into the lane?
A. What do you mean by significant?
Q. Do you accept that it would be protruding at least a metre into the lane?
A. I don't think a car door is a metre wide when it opens. But certainly - but I think I said before I moved into the other lane to compensate for it opening.
Q. Do you accept that it would be protruding into your lane?
A. Yes.
Q. Do you say the plaintiff was to the right of that opened door?
A. When the plaintiff first stepped out of the car, he was within the - he was within the confines, I suppose you could say, of the car door when he first stepped out the vehicle.” (T 428)

The defendant manoeuvred her vehicle so as to go around the open car door. However, when the plaintiff suddenly walked around the car door, the defendant was required to merge very quickly into lane 2, which she appears to have nearly completely done, in that the plaintiff was struck by the nearside wing mirror of the defendant’s vehicle and not by the vehicle.
The defendant ought to have taken steps earlier to slow down and to check if it was safe to move into lane 2. The difficulty is that the plaintiff opened his car door and stepped out when the defendant was approximately 100 metres away. This meant the defendant had less than 4 seconds to take any step, while travelling at the road speed limit. There would have been no accident had the plaintiff remained in his vehicle or, if he alighted, has checked the oncoming traffic and/or had not moved past his open car door, which there was clearly enough room for the defendant to pass.
Counsel for both parties submit, and I accept, that it is necessary, where liability is admitted, to view the issue of contributory negligence in a decoupled fashion to primary liability. The question is the degree to which the plaintiff’s actions contributed in that he not only opened his car door into lane 1 of a busy motorway but walked beyond that open car door further into the road.
Counsel for the plaintiff submits that there was no contributory negligence or that, if contributory negligence occurred, it should be assessed at 10%. Counsel for the defendant submits that liability should be 66% in that the plaintiff was already in a precarious position being parked in the emergency lane and risk of harm from being struck by a vehicle travelling at motorway speeds should have mean he kept a continuous awareness of what was happening with traffic while he was in the vicinity of lane 1.
Motorways are an unusual place to see pedestrian traffic. When a car is parked in the emergency lane, that does not necessarily mean that a person is going to get out of the vehicle. In addition, the plaintiff did not merely exit the vehicle but walked beyond the car door as the defendant approached. Even so, she was sufficiently able to swerve away from him that the only part of her vehicle which struck the plaintiff was the nearside wing mirror, which indicates the very brief time she had to react to the plaintiff’s change of position.
I reject the plaintiff’s submission that the mere presence of two vehicles in the emergency lane being seen at a distance of about 200 metres ahead is cause for motor vehicles on the motorway to slow down to “something in the vicinity of perhaps 20 to 15 kilometres per hour” (T 422). Nor is it desirable in such circumstances for the car to seek to enter into another lane of traffic simply because there are cars that are parked there. The difficulty is that, having seen the driver side car door open at least 100 metres away, there was a possibility that a person might have not only exited but moved forward.
The plaintiff was, on his own evidence, enraged by the circumstances of the accident. He got out of the car, shouting and cursing (as he admitted in the witness box), with no thought for the potential dangers of being parked in the emergency lane of a motorway, in that he failed to keep a lookout for the oncoming traffic. This contributed just as much to the accident as the defendant’s failure to slow down.
Accordingly, I assess contributory negligence at 50%.

Damages

The particulars of injuries pleaded are as follows:

Injury to head;

Injury to neck;

Injury to back;

Injury to left shoulder;

Injury to right shoulder;

Injury to left leg;

Injury to right leg;

Scarring; and

Shock.

The particulars of continuing disabilities are pleaded as follows:

Ongoing pain and discomfort around the scarred area on the skull;

Headaches;

Migraines;

Pain, discomfort, stiffness and restricted movement in the neck;

Radiation of neck pain into both shoulders;

Radiation of neck pain upwards to the base of the skull causing headaches and migraines;

Pain, discomfort, stiffness and restricted movement in the low back;

Radiation of low back pain into both buttocks and into both legs, more so on the left;

Pain, discomfort, stiffness and restricted movement in the left shoulder;

Pain, discomfort, stiffness and restricted movement in the right shoulder;

Pain, discomfort, stiffness and restricted movement in the left leg;

Pain, discomfort, stiffness and restricted movement in the right leg;

Difficulties standing, sitting, walking, lifting, bending, crouching, driving, pushing, pulling, carrying, negotiating stairs, negotiating inclines/declines and undertaking prolonged and/or repetitive tasks involving the abovementioned body parts;

Disturbed sleep;

Tiredness;

Low mood;

Disturbed relationship;

Frustration;

Anxiety;

Depression;

Difficulty undertaking pre-accident employment tasks, childcare tasks, leisure activities, activities of daily living and domestic activities; and

Reliance on medical and related treatments to control pain levels and to complete and manage injuries.

The plaintiff provided the following schedule of damages:

Past out of pocket expenses

$10,894 (Later agreed at $10,010.53: see T 453)

Future out of pocket expenses

$25,000

Past wage loss at $800 per week (212 weeks)

$169,000 [sic – $800 x 212 = $169,600]

Past superannuation 11%

$18,656

Future wage loss

$150,000

Future superannuation

$21,000 (future wage loss at 14%)

Past care 7 hrs x $23 per hour x 212 weeks

$41,552 [sic - 7 x 23 x 212 = $34,132]

Future care

$75,000

Total

$511,702 [The total, taking into account the later agreed past out of pocket expenses, the correct past wage loss figure and past care, amounts to $503,398.53]

The principle issue in relation to the assessment of damages is the plaintiff’s credit, in relation to his description of his ongoing injuries and disabilities. The plaintiff’s claim is that he has been unable to work since the accident and that his future capacity to earn is only 50%. In addition, he requires constant home care and extensive medication. The defendant submitted that the plaintiff suffered only soft tissue injuries which resolved in four to six weeks, and was only entitled to agreed past out of pocket expenses.

The plaintiff’s medical treatment following the accident

As a result of the accident, the plaintiff suffered a laceration to his head and an injury to his left buttock. He declined offers of assistance at the scene and travelled home, where his wife took him to Fairfield Hospital. His head laceration was sutured at Fairfield Hospital and he was referred to his general practitioner, Dr Azam Ali, for removal of the stitches, which occurred on 11 July 2015, four days later. At the time of this visit to Dr Ali, the plaintiff complained of pain in his right scapular area, dizziness and pain.
The plaintiff returned to Dr Ali on 15 July 2015, complaining of concussion and dizzy spells. Dr Ali completed a medical certificate on 23 July 2015, describing the plaintiff as having “concussion headaches, laceration left forehead, hearing after sutures removed, soft tissue injury to the neck, trapezius muscle injury, thoracic muscle injury and low back injury”. Dr Ali also noted anxiety symptoms, bruising of the left buttock and tenderness in the neck. The therapy prescribed was:

Physio interactive – 6 to 12 weeks;

Regular analgesia/heat packs.

It is unclear why the medical certificate was required, as the plaintiff’s “work” is described by Dr Ali as “unemployed”.
The plaintiff saw Dr Ali again on 30 July 2015 and continued to consult him during the next six months on a regular basis, generally to complain of pain and ask for medication. He kept Dr Ali informed of his activities in terms of consulting a solicitor. Dr Ali provided a report dated 2 December 2015 as follows:

“From physical aspect [sic] his predominant current ailment is in upper thoracic region – recurrent pains and spasms. These tend to radiate down to the shoulder blades. At today’s review he reported a three day history of worsening pains causing disruption of his sleep pattern and as expected aggravation of his anxiety.
He has been on a long acting anti-inflammatory medication (Celebrex) for several weeks. I have today prescribed two other medications to try [sic] achieve pain remission.
I have further recommended a neurologist assessment for which he has been given a referral prior [sic] by me. Physiotherapy and psychologist intervention has been of significant benefit.”

Dr Ali referred the plaintiff to a neurologist, Dr Bassel Hassan, who found that the plaintiff’s results were normal. Dr Hassan concluded:

“Opinion and recommendations: There is no evidence of brain injury with Mr El-Hassan. The reported head injury he sustained is mild given he had GCS 15 afterwards with no suggestion of retrograde or anterograde amnesia. Such a mild head injury would not cause brain injury. I suspect most of his symptoms are related to anxiety and psychological trauma of the event. I agree with your plans to refer him to a psychologist. Nonetheless, a head CT performed immediately on the day of the accident is insufficient imaging to rule out subdural hematoma, other intracranial haemorrhage, or radiological evidence of cerebral injury, hence I have given him a request form for brain MRI. For the headache, this is chronic tension headache with possible element of post-traumatic headache. Analgesics are unlikely to be helpful. I asked him to refrain from using Celebrex at more than the recommended therapeutic doses of 200 mg per day. I asked him to pursue physical therapy in the form of massages and acupuncture for the headache. I have done my best to reassure him. I look forward to reviewing him with the brain MRI results.”

The MRI which was performed following Dr Hassan’s recommendation returned normal results. These are the only treating records provided for the plaintiff’s soft tissue injuries; he was not referred for any other investigations or treatment by Dr Ali after March 2016.
Dr Ali also referred the plaintiff to a psychologist. The plaintiff consulted Mr Pranjal More, who prepared an initial report dated 14 October 2015 concerning the plaintiff’s condition as at that time. Mr More paints a dark picture of the plaintiff’s home life at this time, stating that the plaintiff was showing:

“…abnormal Psychological symptoms that significantly impair his ability to perform basic self-care activities as well [sic] function normally at work. Among these symptoms are frequent lapses in memory and attention, anxiety and difficulty managing his anger. Mr. Fadi also reported having difficulty managing appropriate conduct when interacting with people in social settings”

He went on to add:

“Mrs. Ameena is currently Mr. Fadi’s primary carer. She confirmed Mr. Fadi’s reports of the impairments that he has been suffering from following the accident.”

Mr More said the plaintiff complained of a wide range of problems, such as difficulty properly cleaning and washing himself after using the lavatory due to “forgetting, poor focus, concentration, lapses in attention” and also in relation to maintaining body hygiene (p 6). He gave the plaintiff a provision diagnosis of acute stress disorder (p 4 of the report of 14 October 2015)
Mr More prepared a further report provisionally diagnosing the plaintiff as suffering from acute stress disorder (p 2 of the report of 2 December 2015). He notes the plaintiff as having suffered “serious physical and psychological injuries”, although there was “a mild improvement in his symptoms” resulting from Mr More’s treatment. He recommended the plaintiff undergo “long term psychology treatment and care for him to return to his normal functioning” and set out 10 areas of difficulties which ranged from flashbacks, avoidance of activities, sleep disturbance to severe lapses in short term memory. He set out the treatment he was providing and concluded that:

“Despite showing a mild improvement in the severity of his symptoms, Mr Fadi’s condition severely limits his ability to function normally in social and occupational settings. He requires regular care and support from family and friends and needs ongoing psychological treatment. It is likely that for Mr. Fadi to readjust normally to daily duties he will need this level [sic] ongoing care and support over the at least, roughly 12-24 months.” (p 4 of the report of 2 December 2015)

However, that is where the treatment and reports all stop. Mr More’s report of 2 December 2015 is the most recent report provided for the plaintiff’s claim of psychiatric injury. The report of Dr Hassan of 16 March 2016 is the most recent treating doctor’s report in relation to his physical symptoms. There are no x-rays or referrals to specialists after March 2016, although Dr Ali’s reports made frequent reference to his desire for the plaintiff to consult a psychologist, there is no reference to his considering the plaintiff for referral to anyone for treatment of his physical symptoms.
The plaintiff does, however, rely upon medico-legal reports from two doctors. The first of these is Dr Drew Dixon, whose report was prepared on 4 August 2016.

Dr Dixon’s report

Dr Dixon described the plaintiff as suffering a neck strain injury and low back strain injury, as well as lacerations to his forehead and eyebrow. He states the plaintiff as reporting that he suffers difficulty with “prolonged sitting and standing and driving” (report, 2 August 2016, p 2), as well as neck and back pain which disturbed his sleep and pain in his left upper buttock.
Upon examination, he noted the plaintiff suffered no gross neurological deficiency of either upper limb or any gross wasting. There was, however, 2cm of wasting of the left arm. He noticed stiffness on elevation of both shoulders. The only x-ray he had available was the x-ray of the thoracic spine on 14 July 2015, a week after the accident, as well as the MRI of 30 July 2015, approximately three weeks after the accident.
He diagnosed the plaintiff as suffering the following:

“1. Contusion to the left buttock with residual tenderness
2. Back strain injury with post traumatic stiffness with dysmetria, facet arthralgia and radicular complaint
3. Neck strain injury with post traumatic stiffness with dysmetria, facet arthralgia and shoulder brachalgia with trapezial muscle pain
4. Post traumatic stiffness of his left shoulder with trapezial muscle pain and deltoid pain following his neck strain injury with difficulty elevating the arm above shoulder height
5. Post traumatic stiffness of his right shoulder with trapezial muscle pain following his neck strain injury.
6. He remains conscious of his facial scarring at the left eyebrow and left forehead as noted above.
7. Impaction of his injuries on his activities of daily living
8. Reliance on analgesia and anti-inflammatories
9. Post traumatic stress disorder with anxiety and depression requiring Endep as an anti-depressant and night sedation.”

Dr Dixon described his fitness for work as follows:

“FITNESS FOR WORK: He remains unfit to work as a voluntary charity worker at present. He has background in sales, but it does not appear he could manage in a sales role due to ongoing pain and stiffness in his neck, shoulder and lower back which precludes him from prolonged sitting and prolonged standing and he would have difficulty with sustained IT work with word processing and data entry. He has difficulty sitting at a computer at home. He has difficulty concentrating due to occipital headaches and neck pain and difficulty with a fixed neck posture due to neck pain and stiffness and difficulty using a keyboard due to shoulder brachialgia and difficulty with prolonged sitting in a chair due to low back pain.”

Dr Dixon provides an additional report with a provisional whole person impairment of 20%.

Dr Giblin’s reports

Dr Peter Giblin provided reports dated 28 September 2017, 4 July 2018 and 19 February 2019.
Dr Giblin notes in his first report of 28 September 2017 that the plaintiff’s complaints are neck pain and stiffness and low back ache. He notes the plaintiff’s disabilities are “mechanical in nature so that he says that he can only walk 200 metres, cannot stand in the one spot for more than 5 minutes or sit for more than 15 minutes and he gets less than 4 [hour] sleep a night at a stretch.” He reports the plaintiff described himself as having “moderate problems” in relation to his daily personal and household activities.
Dr Giblin was unable to find any evidence of “significant diminution of range of motion of either shoulder” and he noted the deep tendon reflexes and other tests were all normal (report, p 3). He provided a “provisional diagnosis of a soft issue injury to his neck and low back” (p 4 of the report).
Dr Giblin’s report concluded:

“TREATMENT AND MANAGEMENT
The mainstay of his treatment is common sense based self-imposed physical restrictions as noted.
At this stage of his life I assess him as being reasonably independent in terms of his domestic responsibilities, although, he will need some physical assistance, occasionally but on a permanent basis. This amount of assistance will increase as his injuries deteriorate and his physical stamina declines.
His ongoing medical management will be conservative, symptomatic and directed by his family doctor. These medical costs will be similar to those expensed over the last six months on a pro rata basis and required for at least a further six months.” (report, p 5)

Dr Giblin’s report of 4 July 2018 is a reply to the report of Dr James Powell, which is discussed in more detail below. He does not appear to have seen the plaintiff again for the purpose of preparation of this report.
Dr Giblin’s most recent report was prepared following a consultation on 19 February 2019. He notes that the plaintiff has remained “off work for the last two years” and was taking medication such as Celebrex, Lyrica and Endone, attending his general practitioner once a month, but otherwise having no medical treatment beyond medication. He noted there had been no further radiological investigations of the plaintiff’s condition.
Dr Giblin describes a number of the plaintiff’s responses on examination as being normal, such as his tendon reflexes, sensory testing and motor strength of muscle groups. His diagnosis was ongoing soft tissue symptoms in relation to his cervical spine and low back. He would be unfit for unrestricted heavy labouring or impact work, but would be “fit for a sedentary job avoiding the aforementioned physical restrictions”. He considered the plaintiff’s ongoing medical management would remain “conservative and symptomatic” and be directed by his family doctor. He may need “some degree of occasional physical support on a domestic assistance basis and this amount of support will need to slowly increase as his injuries deteriorate and his physical stamina declines”.
Dr Giblin also mentioned the possibility of surgery, stating in general terms:

“… future surgery may take the form of, but not be limited to, a cervical foraminotamy with the all up hospital, medical and ancillary costs being at least $18,000, barring any complications and probably should be off work for at least two months.” (report, p 3)

He recommends vocational rehabilitation “in terms of accessing a suitable modified work environment”. He provides a provisional assessment of the plaintiff’s condition as being 5%.

The defendant’s medical evidence

The defendant tendered medico-legal reports from two orthopaedic surgeons, Dr Keller and Dr Powell, and from a psychiatrist, Dr George. The defendant also tendered a report from an occupational therapist.
All these reports painted a consistent picture of the plaintiff as a person who had made full recovery from a soft-tissue injury.
The defendant also tendered bank statements and other financial records, which were asserted to be consistent in showing the plaintiff was in fact leading a normal life which included buying and selling motor vehicles (including borrowing money to do so), travelling long distances by car, engaging in sports such as shooting, and continuing to receive payments from the charity which had employed him prior to the accident. These documents are asserted to paint a picture of the plaintiff leading a life wholly at variance with his claims of inability to perform household or work-related tasks, such as driving cars for long distances.

Dr Keller

Dr Andrew Keller examined the plaintiff on 18 October 2016. He noted the plaintiff complained of pain in both shoulders, neck and back as well as headaches.
Dr Keller’s observations concerning the plaintiff’s fitness and muscular strength are of importance. He noted the plaintiff to be “of generally very muscular and bulky appearance” (report, p 4). He also noted “an absence of muscle wasting as expected given the stated level of restriction” (report, p 5).
Dr Keller also records that the scar on the plaintiff’s face (the result of a cut when he fell to the ground after the accident) was almost invisible.
His diagnosis was as follows:

“5. Your diagnosis and prognosis.
Mr El-Hassan reports that he was struck by a car in July 2015 and states he continued to suffer pain in both shoulders, his neck, his back, and has headaches. Although it is clear that he was knocked to the ground and suffered lacerations to his left forehead that required stitches, it is not clear to me that he has suffered any confirmable pathology to the neck, back or shoulders. The diagnosis may be of soft tissue injuries though these would have been expected to fully resolve in the period of more than one year since the accident.
It is also clear to me that Mr El-Hassan’s physical capacities are much greater than he wishes to demonstrate due to the inconsistencies observed during the assessment.
With careful consideration of the incident, his capacity to drive home afterwards, the lack of investigation reports showing any defined anatomical abnormalities and the inconsistent examination findings observed today, it is not clear to me that there are any persisting genuine medical diagnoses that can be attributed to the effects of the motor vehicle accident in July 2015.
The relationship of the injuries to the motor vehicle accident on 717/2015 [sic] noting the incident prior to being struck with our insured mirror
1. Are the reported injuries/symptoms consistent with the description of the motor vehicle accident?
It is consistent that Mr El-Hassan would have suffered soft tissue injuries to the left hip and to the forehead as a result of the subject accident. He may have suffered delayed onset pain in the neck and back for a limited period following the accident though there is no evidence that he has had any lasting effect to the spine.
2. Are the injured person’s restrictions and treatment needs relating to the above noted areas, solely, partially or not attributable to the motor vehicle accident on 7/7/2015?
Mr El-Hassan would have required treatment to the scalp including sutures which would have resulted in full healing within one or two weeks. He may have required passive physical therapies to the neck and back for a period up to 3 months following the accident. There is no evidence available to me today that suggests he has any ongoing physical treatment needs as a result of the subject accident.” (report, pp 5-6)

Dr Keller is one of a series of experts retained by the defendant who record concessions by the plaintiff as to his ability to perform work around the home. He notes on page 8 of his report:

“Care
14. Did the injured person report any inability to carry out self-care activities or home duties since the subject accident on 7/7/2015? If so, are these inabilities consistent with the injuries sustained? Please obtain the reported inabilities/restriction/s and is this continuing?
Mr El-Hassan reports he is independent with self care but is unable to assist in home duties or yard work. In the absence of consistent confirmable diagnoses of musculo skeletal pathology I am unable to confirm whether his reports are genuine.
There is significant doubt in my mind based on the inconsistencies observed today and the lack of confirmable information supporting genuine musculo skeletal injuries.” (report, p 8)

This is a very different picture from that of a man unable to go to the toilet without assistance, or to perform simple household duties.
Dr Keller noted the plaintiff had described his work activities as follows:

“Work Capacity
Fadi advises that he was unemployed at the time of the accident, however states that he was doing volunteer work.
19. Has Fadi returned to doing volunteer work.
Mr El-Hassan states he worked up to 2 hours a week doing volunteer work until January 2016 and has had no paid or unpaid work since this time. He reports that prior to the subject accident he was doing volunteer work 20 or 30 hours a week. He stated that he had made significant savings from a previous sales role and was supported by his wife’s earnings and did not require paid employment prior to the accident. He reports his last paid employment was in 2011.” (report, p 9)

Dr Keller concluded the plaintiff had exaggerated his symptoms and level of incapacity. He was satisfied the plaintiff had made a full recovery from his soft tissue injuries.

Dr Powell

Dr James Powell prepared a report dated 10 May 2018, some of which has been answered by Dr Giblin’s report of 4 July 2018.
Dr Powell noted the plaintiff was living “essentially on his own” in the single level house in which he dwelled, apart from the three young children who were with him for half the week, at which time his mother came to help with the housework. He also did some house cleaning but “generally he does things himself within the limits of his discomfort”. This is a very different description to that given in evidence by the plaintiff, his wife and family members.
Dr Powell noted the plaintiff described only “intermittent feelings of stiffness” and “intermittent headaches”, although of a “chronic” nature. This is different to the description the plaintiff gave to his general practitioner of almost constant pain requiring medication.
On examination, Dr Powell noted some radiological changes of early degenerative disease in the neck region which were consistent with his age and constitutionally related but expressed difficulty, from the point of view of an orthopaedic perspective, as to the determination of any structural injury arising from the subject accident. He states, in answer to question 1 on page 6 of his report:

“He has developed chronic intermittent pain and stiffness in the neck region with some radiologic change of early degenerative disease which is age and constitutionally related. There is no sign of structural injury in the cervical region nor in the upper limbs.
He has developed intermittent pain and symptoms in the lower back radiating to the lower limb with no signs of structural injury in the lumbar spine nor of radicular involvement. There is no diagnosable structural injury or a more chronic injury finding that could be identified as arising from the motor vehicle accident.”

Dr Powell considered that, apart from physiotherapy and analgesics in the weeks and months following the accident, there was no requirement for any long term treatment, although noting the plaintiff had said Lyrica was of some assistance in pain symptom modification.
In relation to the need for home care, Dr Powell stated that there was no indication that any musculoskeletal injury had influenced the plaintiff’s ability to attend to his personal care, and no indication of a musculoskeletal injury meaning that he was unable to undertake domestic chores and activities. There were no other factors warranting his need for assistance.
Dr Powell considered that the plaintiff could have recovered within four to six weeks from the principal symptoms of the accident.
I have read the report of Dr Giblin responding to Dr Powell’s assessment. Dr Giblin agrees with a number of the observations on examination, but indicates that he adheres to his original view, without exposing his reasoning for doing so in sufficient detail to make it clear to me how this can be the case.

Other evidence concerning the defendant’s physical condition

The observations of Dr Powell about the plaintiff being well-muscled (an observation also made by Dr George, the psychiatrist, in his report of 9 April 2018), the inference being that he was physically fit and strong, has some support in the documentation which has been tendered. The plaintiff was cross-examined (T 145-147) about a series of bank transactions revealing numerous purchases from Supplement Warehouse in Guildford and Liverpool. The plaintiff was shown a further purchase through PayPal which contained the notation “SNDSUPPLEME”.
The plaintiff sought to explain these as being “vitamins” rather than supplements for muscle support during exercise (T 157-158). Whether or not these supplements contained vitamins, they are for the purpose of physical exercise, as the plaintiff appeared to concede. The plaintiff had been an active member of a gymnasium (Mr Moosa, the plaintiff’s employer, said that they went to the gym together), as well as having a gym set up in the garage of his own home. He claimed those activities had ceased after the accident, but that is inconsistent with the doctors’ observations of his muscled condition and with the purchase of supplements, which I am satisfied was what these items were.
For the plaintiff to remain well-muscled as late as 2018 in circumstances where he claimed to be unable to walk more than 200 metres is, as I understand these reports, unlikely. In addition, as is set out in more detail below, the plaintiff’s activities buying and selling cars, making purchases at shops and pursuing interests such as guns (which he agreed was a hobby) paint a picture of an active and busy man, not someone unable to perform simple household tasks or to walk more than a short distance.
The defendant’s medical evidence paints a clear picture of the plaintiff as suffering a soft tissue injury which should have resolved within weeks or months of the events in question. The plaintiff did not suffer any long term injury preventing him from working or even seeking employment, in orthopaedic terms.
There is, however, the question of why, in those circumstances, the plaintiff was seeking prescriptions for so much medication. The evidence of the plaintiff, his wife and his mother was that he was not only seeking prescriptions for this medication, but he was having the medication made up and taking it. Having regard to my findings in relation to credit, I am satisfied that the plaintiff sought and also took the medication in question, but this is not an indication that this pain was the result of the motor vehicle injury.

Psychiatric evidence

Dr George, a consultant psychiatrist, provided a report dated 9 April 2019. As already noted above, he observed that the plaintiff was “well-muscled” and “looked like he tended to work out”.
Dr George noted the plaintiff said he had not been able to get back to work because of ongoing back pain and leg pain. He cited in some detail the claims made by the plaintiff, which included inability to sleep, erratic behaviour, anger outbursts and reluctance to drive for “a few months”, but considered the plaintiff’s conduct was in fact normal (paragraph 17). His cognitions were intact and his socialising with his family to be normal, in that he mixed with family members and he participated in travel to places such as Kiama. While he noted the plaintiff said he was “much more physically active” before the accident, the plaintiff told him he was able to go to a gym regularly, do light exercises and swim at a local pool.
Dr George concluded that, as there was no sign of depression or pervasive mood disturbance (although the plaintiff had referred to anger outbursts), he was unable to make any psychiatric diagnosis as a result.

Conclusions concerning the plaintiff’s claim for ongoing psychiatric disabilities

The plaintiff suffered what must have been a frightening accident, and it is clear that he required, and received, counselling from a psychologist in order to deal with flashbacks, increased anxiety and the like. However, it is clear from the reports of Mr More that the treatment ceased on or shortly after Mr More’s report of 2 December 2015.
The plaintiff provides no updating medico-legal or other evidence to support his claim for any ongoing psychiatric disability. The only report I have is the report from Dr George, which decisively negatives any such diagnosis.
As is the case with the evidence in relation to the plaintiff’s soft-tissue injuries, I am satisfied that if the plaintiff did suffer distress following the accident, it has not led to any condition capable of psychiatric diagnosis, and that Dr George’s report should be accepted.
The factual issues in this case illustrate a not uncommon problem in personal injury litigation, namely the tender of medico-legal and/or treating reports which contain a difference in diagnosis as well as gaps in a medical history which require explanation. The correct approach is a careful analysis of the factual background, including the history of reporting of injuries to medical practitioners and the form of treatment being sought by the plaintiff and offered by treating doctors: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], citing The Nominal Defendant v Kostic [2007] NSWCA 14 at [13] – [14] and [58] – [59].
The most important area where there is a gap in the medical evidence is the plaintiff’s explanation for not seeking more psychological help after 2015, namely his reluctance to speak to other persons about his personal problems, particularly after Mr More moved away. It is clear that the plaintiff was describing severe symptoms of anxiety and distress to his general practitioner, Dr Ali.
I do not have the benefit of a report from Dr Ali for the period following 2015, but his notes paint a picture of the plaintiff claiming extreme anxiety and distress in circumstances where Dr Ali attempted to refer him to a psychologist and a pain management clinic, without success. Is this a sufficient explanation?
The correct approach to differences in evidence of this kind is identified in Falco v Aiyaz; Falco v Falzon (2015) 71 MVR 454. The primary judge in those proceedings contrasted the plaintiff’s presentation to two medico-legal psychiatrists with presentation to another doctor. That finding underpinned the conclusion that the presentation to one of those doctors was therefore “the product of considerable exaggeration” (at [70]).
The primary judge gave five reasons for making a finding of “considerable exaggeration”, which is set out at [37] of the judgment:

“37. The primary Judge gave five reasons for making this finding:
(i) the appellant’s presentation to the medico-legal psychiatrists was significantly different from her presentation to Dr Law, her treating psychiatrist;
(ii) despite serious concerns raised by Dr Parmegiani and Dr Kaplan, the medico-legal psychiatrists, about the appellant’s mental health, no steps were taken by members of her family to act on those concerns;
(iii) the evidence of the appellant and Mr Falco had to be approached with caution since both had exaggerated the nature and severity of the Second Accident;
(iv) the appellant did not consult her treating psychiatrist, Dr Law, for lengthy periods; and
(v) Dr Law, having seen the appellant on six occasions during 2009, concluded in a report of February 2010 that although the appellant’s psychiatric symptoms were moderately severe to severe for much of the time, the need for hospitalisation was uncertain and the chances that she would require hospitalisation for post-traumatic stress disorder (PTSD) were not high.”

The primary judge’s findings were not solely based on the different presentation to doctors, but other factors, including findings as to the plaintiff’s credit (at [72]-[77]).
The Court of Appeal dismissed the appeal, considering that the primary judge was justified in drawing conclusions from the different presentation the plaintiff gave to one doctor as opposed to other doctors. The Court of Appeal also held that the primary judge was correct in looking at evidence outside the psychiatric evidence when determining whether the plaintiff had exaggerated.
The issue of the plaintiff’s credit is set out in the section of this judgment which follows the findings in relation to economic loss and home care, as this is the issue to which these findings relates most closely. This is because the findings in relation to credit are drawn substantially from the inconsistencies between the plaintiff’s lifestyle as objectively reflected in his banking and other financial records, and not merely his statements to doctors concerning his ongoing pain and disabilities.
In relation to the plaintiff’s psychiatric evidence, I am satisfied that the plaintiff does not have any recognised psychiatric disorder or, indeed, any ongoing psychiatric disabilities. I make this conclusion based on the medical evidence in the case. However, as was the case in Falco v Aiyaz; Falco v Falzon, I have also relied upon, for the purpose of making this finding, the inconsistencies between the plaintiff’s lifestyle and complaints, to which I now turn.

Economic loss

The past and future economic loss and claim for past and future superannuation was particularised by the plaintiff in the statement of particulars as follows:

“PAST ECONOMIC LOSS
A claim is made for past economic loss.
At the time of the accident the accident [sic] the Plaintiff was employed by the Australian Islamic Aid as a Community Consultant.
At the time of the accident the Plaintiff was working three days a week earning $540 net per week. Prior to that time, the Plaintiff was earning just over $800 net per week whilst working in a full time capacity with the Australian Islamic Aid.
The Plaintiff’s duties required him to undertake delivery work, interview and assess candidates to determine whether they were qualified for receipt of charity services offered by the Council, complete documentation and paperwork, undertake computer and phone work, attend meetings, perform banking as well as driving work.
Following the accident the Plaintiff was totally unfit for work for a period of about 6 months. He then tried to return to work for three days a week performing suitable duties. He was unable to continue in that employment due to his injuries and in February 2016 he ceased working for that organisation. The Plaintiff has not worked since that time.
A claim is made for all past wage loss at the Plaintiff’s pre-accident rate of pay as varied in line with earnings of comparable employees.
FUTURE ECONOMIC LOSS
A claim is made for future economic loss.

By reason of his injuries and ongoing disabilities the Plaintiff is precluded from returning to any form of physical employment. He is at a disadvantage on the open labour market and diminishing of earning capacity is claimed up to retirement age.
PARTICULARS OF PAST AND FUTURE SUPERANNUATION
A claim is made for past and future superannuation benefits at 11% of net past earnings and 13% of net future earnings.”

I note that although the plaintiff states future superannuation is claimed at 13% in the statement of particulars, the calculation in the plaintiff’s schedule of damages set out above in fact claims future superannuation at 14%. There is no explanation given for this.

Was the plaintiff working?

The plaintiff has provided only one tax return (for 2010) for the period of time since he has worked at Australian Islamic Aid which had employed him over the past ten years or so. Whether the plaintiff was actually employed, and for what salary, was a significant issue in terms of inconsistent evidence.
In his helpful submissions, Mr Nesbeth has carefully summarised the evidence given by the plaintiff at various stages in relation to his employment position at the time of the accident:

(a) He was unemployed and had not taken any time off work due to the accident (Accident Notification Form dated 23 July 2015, Exhibit G).
(b) He was unemployed, “but was doing volunteer work for Aust. Islamic Aid”. He had returned to work but was doing light duty volunteer work. Usual income was stated as “nil” (Personal Injury Claim Form dated 3 December 2015, Exhibit F).
(c) He had not been in paid employment since 2011 but he had been doing some volunteer work with Australian Islamic Aid, which involved computer work and file management. He worked between 6 – 8 hours per week. He was doing this work at the time of the subject accident and continued to do this volunteer work since the accident. Prior to the accident it was the plaintiff’s intention to get back to paid employment. His intention was to start working when his youngest turned 4 years old and started Kindergarten (statement dated 8 June 2016, Exhibit 11).
(d) Dr Dixon in his report dated 4 August 2016, noted that at the time of the accident the plaintiff “not working”.
(e) Dr Keller in his report dated 18 October 2016 the following is recorded:
Mr El-Hassan states at the time of his accident he was a voluntary charity worker for Aussies in Action commencing in 2013. He did between 7 and 10 hours a day, two to four days a week, averaging 20 or 30 hours weekly. He had no paid work at this time.
He reports that the last paid work he did was paid charity work in 2011. He reports that prior to the accident he was not on any Disability or Medical Benefits. He did not receive Unemployment Benefits and was supported by his past savings and his partner.

(f) MAS Assessor Dr McGlynn in his report dated 24 January 2017 recorded that the plaintiff “worked as a sales manager prior to the motor vehicle accident. He says he has not worked since the accident”.
(g) At the time of the accident the plaintiff was on a carer’s pension for looking after three of his four children, having 50% shared custody with the children’s mother. He last had paid employment in 2013 in sales. At the time of the subject accident, he had been involved in voluntary work for some time (Medical Review Panel Certificate dated 3 July 2017 (Exhibit 9, p70)).
(h) Dr Peter Giblin, orthopaedic surgeon prepared a report dated 28 September 2017. He reported on page two of that report that “[a]t the time of the accident he had been working as an unpaid charity worker, 30 hours per week”.
(i) At the time of the accident the plaintiff had cut his hours back and was working 3 days a week earning around $540 net per week. He was away from work for about 6 months and after that 6 month period he spoke with his employer who was very happy to try and accommodate him and he tried to get back to 3 days per week performing his pre-accident role. After about three weeks of his return to work he advised his employer that he could no longer continue. They were very understanding and said when he felt up to it he should come back and speak to them (statement dated 27 October 2017, Exhibit R).
(j) Dr George recorded in his report dated 9 April 2018 the following:
Mr El Hassan said that he had not worked since his motor vehicle accident on 7 July 2015. He said that he last worked prior to the motor vehicle accident. When asked why he had not been able to get back to work, he said that he had some ongoing back pain and pain in his left leg, neck and headaches on occasions.

(k) He started doing charity work in 2008. It was a full-time role. He worked between 8 – 12 hours per day in this role was paid $800 per week cash (Statement dated 6 June 2018, Exhibit 10).

The plaintiff’s said in his evidence that he was being paid cash for his work for Australian Islamic Aid which he was not declaring as income, and that his embarrassment about being paid in cash is the explanation for these different accounts of the size/existence of his income/employment and the widely differing account of the number of hours for which he worked (at T 46):

“A. Just I guess being that I was earning cash money for such a long time, I didn't really know what to write in the form. Obviously a lack of judgment at my end, not thinking forward. I mean you never - never think that something like this is going to happen to you anyway, so I mean as a result of it I'm suffering the consequences now, so I mean given that, I probably should have been on the books and probably shouldn't have been getting paid cash, but it is what it is.”

The plaintiff had in fact lodged a tax return for the year 2010. It discloses that he had a taxable income of $4,032 (below the taxation threshold), derived from his work as a welfare officer:

“Q. Can I just show you a document. This is your tax return for the year ended 2010. Do you see that?
A. Yes.
Q. Do you see the main salary and wage occupation description? This is on the front page just under income. Do you see that?
A. Where it says under Occupation?
Q. So if you look on the left‑hand side and track down to Income.
A. Income, yes.
Q. You can see your main salary and wage occupation description is welfare officer.
A. Yes.
Q. What was that in relation to?
A. Well, I was working at the charity. So that - yeah, welfare officer.
Q. So does that relate to the work you were doing at the charity?
A. I'd say so, yeah, correct. I don't even remember doing it.
Q. It says total income or loss, $4032 for 2010 tax year. Correct? Do you see that?
A. Yes.
Q. Is that what you earned for that tax year?
A. I can't recall. As I've said, I explained what I earned before. I worked three days towards the end, 540, and most of the time I was earning $800 a week.
Q. As I understood your evidence previously, you hadn't filed any tax returns for this period.
A. Yeah. I guess there's an oversight there. I can't remember doing it. It's nine years ago.
Q. Are there any other tax returns that you've filed since the accident that we don't know of?
A. I don't believe so.” (T 291-292)

Statements that the plaintiff “can’t recall” and “can’t remember” pervaded his testimony, but the tax returns and banking documents speak for themselves. The plaintiff in his case as pleaded not asking the court to accept that he received an income from the same employer which was greater than that disclosed. He first asked the court to accept that he received an income despite failing to lodge any tax returns at all, in circumstances where it is clear he has prepared at least one return (namely the 2010 return) and where his financial records disclose a fee paid to his accountant for the preparation of tax returns, apparently in relation to his claim for compensation for this accident. Despite a call for these documents, they were not produced, and Mr Nesbeth asks me to draw the inference that these documents would not have assisted the plaintiff’s case.
The next problem in determining the plaintiff’s past economic loss is that the plaintiff’s bank records show that he continued to receive income from this employer, the Australia Islamic Aid organisation (or, at best, some related entity), over a period of time which runs from shortly after the accident up until as late as 2018.
In his evidence, the plaintiff said this was back pay for reimbursement for work he had done before the accident, but it is difficult to see how such sums could have been still owing as at 2018.
In addition, Mr Moosa, who gave evidence that he was effectively the plaintiff’s employer, told the court that the plaintiff attempted to return to work two and a half months after the accident, working from home, which would presumably be reflected in payments of some kind. What these may be, in terms of quantum, is unclear.
Mr Moosa also told that court that the plaintiff had been trying to find other work, as the Australian Islamic Aid organisation had effectively ceased to exist. Mr Moosa and the other active member of the organisation, his brother, ceased involvement in the organisation sometime in the year following the plaintiff’s accident. How, in those circumstances, the plaintiff continued to receive funds from the charity is difficult to understand.
The plaintiff was asked why, if he knew he had to be frank about his failure to lodge tax returns, he had not assisted his solicitors in the preparation of his statement by making it clear to them that he was receiving an income at the time of the accident:

“Q. So are you saying that you told them that you were earning money at this time, the time of the accident?
A. Told them I was earning money?
Q. Yes.
Q. I'm confused now, because you're saying to me it says here, "Since 2011, I had not been in paid employment and had been doing some voluntary work with Australian Islamic Aid." Like, I don't understand what you're asking me. I’m confused now.
Q. I'll start again. In this case, you're saying you were getting paid for the work you were doing at the time of the accident. Correct?
A. Correct.
Q. In this statement, it says since 2011 and then to the date of the statement, which is 8 June 2016, you were doing volunteer work. Correct?
A. That's what it says, yes.
Q. So I'm just trying to understand why, if it's true that you were earning money at the time of the accident, your statement says you were doing volunteer work.
A. Because I've explained that to you. The previous solicitor, that's what he wrote, and I was afraid I was going to get into trouble with the tax department as well, as I've said that right from the beginning.
Q. But did you tell them that you were earning money or not?
A. Tell who? The first guy - the first solicitors?
Q. The solicitors that prepared this statement.
A. I - he just directed me in the best way he thought possible to get a positive outcome. I don't remember telling the first solicitor much at all. Brydens are the ones that actually pointed things out to me and are a little bit clearer about everything.
Q. But in terms of my question, did you tell them you were earning money or not?
A. I can't recall what I told them. Like I told you, it was very vague. I probably had - I was with that - those solicitors for maybe a year and half, and I probably sat with them twice in a year and a half.
Q. But surely, if you were earning money during this period, you would have said to the solicitors, "Look, I wasn't volunteering. I was earning money", wouldn't you?
A. Well, as I said, if they thought it was the best outcome to say otherwise, I think that's the way they were trying to take me, down a different road.
Q. But did you tell them that you were earning money or not?
A. I told you, I can't recall. I answered that question. You're asking me again.” (T 245-246)

The plaintiff’s explanations that he was “not cluey with things” and “not very good with documents and paperwork” (T 246) should not be accepted. His solicitors gave him the statement to take away, so that he could make corrections, and his statement was witnessed by his partner, who would also have been aware of these matters.
The total absence of documentation in support of the plaintiff’s claim is startling. No employment records of any kind have been kept. It is admitted that the salary of $800 a week did not include any payment in relation to superannuation.
This brings me to the question of how the plaintiff’s past economic loss should be determined. Counsel for the defendant confirmed in submissions that the claim for past loss is not based on average weekly earnings but upon his actual past earnings.
Income earned before the accident is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: State of NSW v Moss [2000] NSWCA 133 at [71]. The failure of the plaintiff to produce any records of pre-accident earnings leaves the evidence in a state of uncertainty (Giorginis v Kastrati [1988] 49 SASR 371 at 375). However, absence of financial records is not uncommon in personal injury matters and, where there is a lack of evidence as to past or future economic loss, the court must do the best it can in the circumstances (State of NSW v Moss at [21]).
The real difficulty the plaintiff faces is that his bank statements tell a very different story of the plaintiff’s income and outgoings, as well as reflecting not only the plaintiff’s very busy activities in terms of buying and selling cars, but also a number of transactions which would not have been possible for a person who is earning little or no income, such as borrowing a substantial amount of money from a financial institution and paying significant sums not only for the purchase of motor vehicles but for a range of daily purchases. In addition, there is the difficulty of the transfer of money into this account which appears to come from a source identified as his employer, even though he was not working.
In order to consider these issues, it is necessary to look beyond the stated past earnings and to consider both the plaintiff’s bank statements and the buying and selling of motor vehicles over the period of time since the accident.

Bank statements

The plaintiff’s bank statements from May 2014 to May 2018 with the St George Bank were produced. The plaintiff was cross-examined about the circumstances in which monies were paid into his account, apparently from Australian Islamic Aid, over the whole of this period, including after the accident.
The plaintiff said that he would personally transfer money to his account from the charity’s account:

“Q. Did you make that transfer?
A. I can't recall who did the transfer.
Q. Could you have made that transfer?
A. I beg your pardon.
Q. Could you have made that transfer?
A. It could have been myself, it could have been, but I couldn't definitively tell you, no.
Q. So you had access to the account to make that transfer, did you?
A. Yeah. Well, I was a director, so I've got access to all the accounts.” (T 116)

The plaintiff described these funds as being reimbursements of outstanding earnings. However, these sums were paid into his account by transfer, not an outside source, and, in a manner of minutes, the account holder (the plaintiff) would withdraw a similar amount from an ATM which was often equal to the sum deposited into his account (T 116, 122-123 and 128).
The plaintiff said that at times he made transfers into his wife’s account (T 186-187). Two additional accounts for the transfer of these funds (ending 875 and 611, both of which the plaintiff said were the charity’s account (T 201) were also identified.
However, Mr Nesbeth challenged this in cross-examination, pointing out that the previous internet transfers which had the notation “admin”, identified as Australian Islamic Aid, did not have an account number on the bank statement, suggesting that this was a third or related account. The plaintiff was unable to explain how it was that these transfers were internal, as opposed to coming from an outside bank.
Another of the plaintiff’s explanations for his ability to continue to manage his financial affairs despite earning no income was that he had a large amount of money in a safe which he used from time to time. This did not assist in relation to the explanation of the bank accounts, and merely painted a darker picture of the plaintiff as having unexplained cash assets upon which he was withdrawing.
It is hard to see how these amounts being transferred to and from the plaintiff’s accounts (all of which I am satisfied were done by the plaintiff) both before and after the accident were monies coming from gainful employment of any kind. All they show is a sum of money moving from one place to another.
Some of the transactions are difficult to understand. One of them is an EFTPOS purchase from Glenfield Waste Disposal on 8 April 2016. The plaintiff said that he was assisting the charity, which was carrying out renovations, although his evidence was that he was unable to work. He claimed that he was merely sitting with the driver and paying the tip fee:

“Q. A bit further down, 8 April, internet deposit, 8.35am, $140. The next entry, internet deposit, $442.50. You see that?
A. Same page?
Q. Yes.
A. So - so where are we going now?
Q. Well the next two credits, 140 and 442.50.
A. 140, yep.
Q. Can you tell us what those were about?
A. I couldn't tell you, I'm sorry
Q. Did you transfer those to yourself?
A. No.
Q. Because in relation to the second one of those, within a minute you've made an EFTPOS purchase at Glenfield Waste Disposal, haven't you?
A. Yes.
Q. Within a minute.
A. Yep.
Q. Are you sure you didn't transfer that money to yourself?
A. No.
Q. Then how did you manage to spend it so quickly?
A. It's called communicating with people. They were renovating, I was with the guy driving the truck, I went to the tip, I paid for it. That's it, it's pretty simply.
Q. So were you working, were you?
A. No.
Q. So what were you doing at the tip then if you weren't working?
A. I just told you I was sitting with the driver.
Q. You were keeping him company, were you?
A. Yes.
Q. Did you help unload the truck?
A. No.” (T 157)

However, Mr Moosa was unaware of any of these activities, or of the plaintiff going to any waste disposals, before or after the accident (T 394).

Exhibit H

The plaintiff provided a summary of payments from his employer as part of his economic loss claim (Exhibit H), but this document is itself of uncertain reliability. Mr Nesbeth draws to my attention that a transfer recorded as occurring on 28 July 2018 is a typographical error, and should be 28 July 2015. Although the handwritten notation for it is “donation for charity”, the plaintiff’s evidence was that he received this sum from a Mr Sarwar in relation to the purchase of a motor vehicle. There is a notation on the bank statement of the word “Alfa”.
This is only one example from Exhibit H, but it is a telling one. This document is as unhelpful to the plaintiff as his explanation of keeping cash in a safe, another explanation set out in more detail below.

The buying and selling of motor vehicles

Although the plaintiff described himself as being in consistent pain and requiring extensive medication, it is clear from the plaintiff’s bank statements that, within a very short time of the accident, he was purchasing and selling a number of vehicles.
At the time of the accident, the plaintiff owned a gold Mercedes Benz and his wife had a car. He also gave evidence of having two older cars in his home (although his wife said there was only one). However, in the course of cross-examination, the plaintiff acknowledged the following motor vehicle sales and purchases transactions:

Sale of an Alfa Romeo on around 28 July 2015 (T 119 line 31 – T 120 line 12);

GTS Holden purchased on around 2 November 2015 in Queensland which he said was in exchange for another Holden the plaintiff had failed to previously mention (T 128 line 45 – T 129 line 24);

Ford Fiesta around 16 November 2015 (T 141 line 18 – T 142 line 38);

An FJ Cruiser four wheel drive in Melbourne in around March 2016 (T 152 line 44 – T 154 line 20);

Two Subaru Impreza WRX’s, one in 2016 and another in 2017 (T 169 line 39 – T 170 line 27);

A Toyota Hilux in around 2017 (T 225 line 33 – T 225 line 43).

The Alfa Romeo transaction occurred a matter of weeks after the accident. The plaintiff’s evidence was as follows:

“Q. Just over the page, 197.
A. Yes.
Q. So the first 28 July transaction, can you see that?
A. 28th?
Q. Yeah.
A. Yep.
Q. I'll spell it. It seems to be someone's name. S‑H‑A‑H‑R‑O‑O‑Z.
A. Yes.
Q. S‑A‑R‑W‑A‑R.
A. Mm‑hmm.
Q. And $7,000 went into your account there. The notation is Alfa.
A. That's correct.
Q. Is that from the same St George bank account?
A. No, that's a personal transaction.
Q. What was that in relation to?
A. It says Alfa. I sold my car to a colleague.
Q. You sold your car to a colleague?
A. Mm‑hmm.
Q. So you had, what, an Alfa Romeo, did you, at the time?
A. That's correct.
Q. This was at 28 July 2015, correct?
A. Yes.” (T 119-120)

A transaction of particular importance is the deposit into his account of $30,800 on 8 March 2016 by an entity described in the bank records as “BMW Finance”. The plaintiff repeatedly denied any knowledge of where this substantial sum came from:

“Q. Did you also get a loan from BMW during 2016?
A. Me, a loan from BMW?
Q. Yes.
A. (No verbal reply)
Q. Sorry, can you state your answer for the record?
A. No. I've got a bad credit rating, I can't get a loan.
Q. Why do you have a bad credit rating?
A. From a long time ago, I didn't pay a - a - a Vodafone bill or something like that. It was late.
HER HONOUR: I'm sorry, what page are we on?
NESBETH: 241.
Q. So you see there's an entry there where you've received $30,800? 8 March 2016.
A. Uh‑huh.
Q. Do you see it says "BMW Australia", it says "FIN", I assume that means finance.
A. Uh‑huh.
Q. Does that jog your memory in terms of whether you got a loan from them?
A. I've - I've never gotten a loan from BMW finance before. I - I can't get one, I actually can't get a loan.
Q. Can you explain that entry?
A. I - no, I can't.
Q. Mr El‑Hassan, this is 8 March 2016, almost $31,000 went into your account and you've got no explanation how it ended up there?
A. 30,000, no.
Q. And then it seems you withdrew on 9 March 2,000, 23,000.
A. Uh‑huh.
Q. Does that help your memory in terms of what's happening with this money?
A. "BMW Finance", no.
Q. No explanation?
A. I - I don't know where that - I - I couldn't tell you, I've never financed anything from BMW. You can call them and do whatever you like, I've never - never‑‑
Q. Well, leaving that aside, you've got 30‑odd thousand in your account which you've done certain things with.
A. Beg your pardon?
Q. Which you've done certain things with.
A. Uh‑huh.
Q. But you've got no explanation or recall of it at all?
A. No.” (T 148-149)

He was asked again at T 150-151:

“Q. Does that assume your recall as to what happened with that $30,000?
A. No, I - I can't‑‑
Q. You've taken money out, it seems you may have registered or done something with the vehicle, presumably in Melbourne.
A. No.
Q. No recollection?
A. I just put the money in the safe, to be honest with you, I can't - I can't recall.
Q. So you've got BMW Australia finance, and you've put that money in the safe, is that what you're saying?
A. Like I said, I've - I've never financed anything from BMW. You can feel free to call 'em and ask 'em. I've got a bad credit rating, I can't get finance.
Q. 9 March is a bank cheque, $23,000.
A. Uh‑huh.
Q. So you wouldn't have put that in the safe, would you?
A. Well, the transactions are a day apart, so - 23‑‑
Q. What are you suggesting?
A. Beg your pardon?
Q. What are you suggesting, the transactions are a day apart?
A. Yeah, well, you're asking me what did I do with that money, so I probably would've put it away, and then I would probably put it into my account again, I - I don't - I don't know, I - I can't recall.”

He was asked a further time at T 152:

“Q. It hasn't just randomly ended up in your account, has it?
A. But I'm telling you, and I'm telling you for the third time, I have not received anything or any money from BMW, nor have I financed anything from 'em, I can't get finance. For the thousandth time, I have to repeat myself.”

The plaintiff eventually conceded that he may have used the money to purchase an FJ Cruiser, although he later said that the money came into his account as a result of a sale of yet another car (T 402).
Mr Nesbeth submits that the likelihood is that the plaintiff bought and sold more cars than he revealed, and that it is also likely that the plaintiff was drawing an income (or making a profit) from buying and selling cars following the accident, and doing so in a matter of weeks after the accident.
The plaintiff’s answers on these issues in cross-examination were unsatisfactory, in that any concessions made were made grudgingly only after being shown the bank records, and were then restricted to the entries in the bank records. For example, in relation to the Ford Fiesta purchase, the plaintiff initially said that he paid $5,000, which was the amount of the first internet withdrawal. When he was shown a further entry showing $1,500, he then changed this figure to $6,500. When he was challenged as to the apparent cheapness of this 2012 vehicle, he claimed that it had travelled 160,000km and that this was the reason. When Mr Nesbeth put to him that the vehicle was unlikely to have travelled more than 50,000km each year for three years, the plaintiff’s next answer was that it was a fleet car (T 144).
All of these answers were accompanied by long pauses and required questions to be repeated. On a several occasions I had to intervene and repeat the question in order to obtain an answer from the plaintiff. His demeanour was that of a witness who sought to provide the court with as little information as possible.
In order to obtain these vehicles, the plaintiff travelled extensively not only within New South Wales but interstate. He flew to Queensland to purchase a Holden GTS and drove back with a friend over the course of nine hours within only months of the subject accident:

“Q. I asked you on Friday about 11 November 2015 where it seems you bought some KFC in Grafton.
A. Yes.
Q. I don't think we'd quite got to the answer of this question but what were you doing in Grafton?
A. I told you I was eating. I stopped off, I was eating.
Q. It's about 600 kilometres from Sydney, Mr El-Hassan. So surely you didn't drive to Grafton for KFC?
A. I drove with a friend. I was with a friend. I was a passenger. He drove. He was driving.
Q. Sorry, do you say you drove?
A. I beg your pardon?
Q. Initially you said you drove to a friend, didn't you?
A. I beg your pardon?
HER HONOUR
Q. Initially you said you drove.
A. No. We alternate - I don't drive long. I can't drive more than an hour.
NESBETH
Q. So you shared the driving?
A. Yes, correct.
Q. Where was the friend?
A. In the car.
Q. You said you drove to a friend. What friend did you go and see?
A. I beg your pardon? A friend in - he's my friend. Like, I don't understand what you're asking me.
Q. It's not a difficult question, Mr El-Hassan. I'm asking you where you went?
HER HONOUR
Q. And who the friend was.
A. Where I went? Well, I drove to - I was in Queensland and we drove back from Queensland to Sydney.
NESBETH
Q. So you're saying you went to Queensland to visit a friend?
A. Yes.
Q. Who did you go and see?
A. My friend. Mohammed Aness, his name is. As I said before, I mentioned him before. He's a good friend of mine.
Q. Who's the friend you went with?
A. I didn't go with anyone. I said as I was travelling on the way back with a friend. We were coming back to Sydney.
Q. Did you drive up there?
A. No. I flew.
Q. That's when you bought a vehicle. Is that right?
A. That's correct, yep.
Q. Just remind us. What vehicle did you buy when you went to Queensland?
A. I think it was a GTS.
HER HONOUR
Q. A what?
A. A GTS, Holden GTS. It's written on the statement.
Q. So did you fly up and‑‑
A. That's when you asked me about the Meriton, the hotel, the 300 and something dollars for the‑‑
Q. When you drove back who was in the car with you, if anyone?
A. Me and my friend.
Q. Which friend?
A. Mohammed Aness.
Q. I see. So you flew up there and you met him and you drove back and he came back with you?
A. Correct.” (T 192-193)

The plaintiff also admitted to purchasing a car in Melbourne (T 199). Mr Nesbeth submitted that there could well be other car purchases and sales which were not discoverable through the plaintiff’s bank records.
I am satisfied that these transactions were a regular activity engaged in by the plaintiff for the whole of the period covered by his past economic loss claim.

Conclusions concerning past economic loss

Mr Nesbeth submits that the plaintiff’s unsatisfactory answers on these issues are evidence of the plaintiff “fabricating his evidence as he went along” (written submissions, paragraph 15.3).
As noted above, I have accepted the evidence of Dr Powell and Dr Keller and prefer it to that of Dr Giblin and Dr Dixon. I am satisfied that none of the doctors who prepared medico-legal reports had accurate information as to the level of activity in which the plaintiff was engaging in in the period following the accident. The plaintiff’s failure to give an honest history to those doctors of the extent of his activities including his ability to travel long distances in order to make family purchases as well as purchase vehicles, means that their reports are based on a false premise.
The report of Ms Elder, the occupational therapist, is in a different category, in that it is based upon her observations of the plaintiff performing specific household tasks which she then records. It paints a vivid picture of the plaintiff being fully able to perform a wide number of household tasks. I am satisfied that it accurately reflects the true level of the plaintiff’s activities, as opposed to the accounts the plaintiff gave to doctors such as Dr Ali.
The plaintiff’s bank records also indicate a significant level of activity including transactions on almost every day which involved a considerable amount of travel. The plaintiff admitted that he had other responsibilities at home which included looking after the children of his previous marriage for half of the week (T 104).
All of the evidence points to the plaintiff suffering a soft tissue injury which resolved relatively quickly. What the economic loss documentation confirmed is that within a matter of weeks, he was back to his pre-accident activities, including the purchase of motor vehicles and travelling long distances to make EFTPOS purchases at a variety of stores.
This documentation supports my finding that the plaintiff did not suffer any ongoing disabilities of a psychiatric nature. He was able to be involved in a transaction for an Alfa Romeo within a matter of weeks of the accident and I am satisfied that he continued to drive his motor vehicle and indeed to carry out a number of family related activities, such as the purchase of items for his children, without difficulties.

Conclusions concerning past economic loss

The plaintiff seeks a cushion for past economic loss, while the defendant submits that no award of any kind should be made.
The plaintiff clearly suffered soft tissue injuries which would have resolved in four to six weeks. If the plaintiff’s claim for past economic loss had been put on the basis of average weekly earnings, some form of quantum would have been readily assessable. However, his claim has been specifically acknowledged to be put on the basis of loss of $800 per week, so this is not possible.
Doing the best I can in accordance with the principles set out in State of NSW v Moss, I would go beyond the four to six week period identified by the defendant’s medico-legal experts and allow the plaintiff past economic loss at first full time and then gradually increasing until the end of 2015. This was a frightening accident and one where the plaintiff suffered soft tissue injuries from a blow of force. Using the “cushion” approach identified by the plaintiff, I would award a lump sum of $25,000.
The plaintiff did not have superannuation. I have taken into account his explanations for this, unsatisfactory though it is, and confirm that this past economic loss figure includes a component for past superannuation entitlements.

Future economic loss

Section 126(1) of the Motor Accidents Compensation Act1999 (NSW) imposes a prohibition on an award of damages for future economic loss, unless the terms of the provision are satisfied (Amoud v Al Batat (2009) 54 MVR 167 per Basten JA at [23]).
Before a plaintiff can be awarded damages for future economic loss it is incumbent upon him to establish:

his likely future circumstances but for the injury; and

the assumptions about future earning capacity (and other events) which form the basis of the calculation.

The correct approach to these principles has been explained by the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at [2] as follows:

“2. A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that "the diminution of ... earning capacity is or may be productive of financial loss" ((1) Graham v. Baker [1961] HCA 48; (1961) 106 CLR 340 at 347, per Dixon CJ, Kitto and Taylor JJ).”

I am satisfied that the plaintiff suffered soft tissue injuries which resolved within a matter of four to six weeks. His conduct then returned to his pre-accident condition and it is clear that he was demonstrating within weeks and months of the accident that he was able to live a normal life. He required counselling up until the end of 2015 but I am satisfied that his distress had dissipated by that date.
While the plaintiff claimed in the witness box to be of limited intellect, the documentary evidence shows he is capable of internet banking, using a computer, conducting interviews and other activities of the kind that would enable him to hold a full time sedentary occupation. I reject the plaintiff’s submission that his future economic loss should be in terms of 50% of his future earning capacity.
The reason for the plaintiff not working now is unclear. He does not appear to have made any attempts to seek work beyond considering opening a café with a relative, although Mr Moosa said that the plaintiff had been attempting to do so. Mr Moosa considered the plaintiff had some work skills. As Mr Moosa runs a recruitment business, his observations as to the plaintiff’s ability to work in administrative positions is also relevant.
Mr Nesbeth draws to my attention that Ms Elder asked the plaintiff about his plan to return to work, paid or unpaid. He told her that his main focus was in caring for his children and his other responsibilities. The defendant submits that if the plaintiff is not working, it is because he chooses not to.
I accept the defendant’s submission that this is the case. It is clearly borne out by the evidence of all the plaintiff’s witnesses that he has a strong family role. The plaintiff has a strong feeling of obligation to the children from his previous wife and is caring for them three days a week. In addition, he and his wife have a new baby and his wife wishes to pursue nursing studies. I accept Mr Nesbeth’s submission that the plaintiff’s lifestyle is built around the home and family and that this is the most likely explanation for his failure to make any real attempt to seek to return to the workforce.
The plaintiff does not satisfy the s 126 criteria and there should be no allowance for future economic loss.

Domestic assistance and attendant care

Although great caution should be used when considering the opinion of orthopaedic surgeons such as Dr Dixon and Dr Keller (Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443), even the plaintiff’s medico-legal expert, Dr Giblin, could only put the plaintiff’s case at its highest by saying he might “occasionally” require some physical assistance but was otherwise reasonably independent in terms of his domestic responsibilities.
The defendant relies upon the occupational therapist report of Ms Elder of 13 April 2018. The plaintiff did not tender any report by an occupational therapist, did not require Ms Elder to be available for cross-examination and did not challenge the accuracy of what she recorded. The observation she makes of the plaintiff’s ability to move and her recording of the statements he made concerning those activities are compelling.
One of the observations that Ms Elder made was that the plaintiff had not taken medication on the day of the assessment (Exhibit 9, p 36). This is revealing in light of the plaintiff’s claim that he was constantly taking medication.
The plaintiff’s evidence as to his need for care was as unsatisfactory as his evidence in relation to past economic loss. However, after a degree of initial resistance, the plaintiff accepted that he could do the things around the house which Ms Elder had observed during her assessment, although adding he had good and bad days. He claimed that when he was active it was as a result of medication. At times he would take an entire packet of medication, which would numb his whole body so he could not feel anything:

“Q. And that also - I won’t go into the details - but they’ve spoken about within months of the accident you’re travelling on planes to certainly Brisbane, driving back from Brisbane. Correct?
A. You can do it on a packet of medication. It numbs your whole body. You can’t feel anything.” (T 263)

The plaintiff’s evidence about his domestic activities was not merely internally inconsistent, but inconsistent with the objective evidence of the extent of his driving activities.
When questioned about his driving activities in the period following the accident the plaintiff gave evidence that for about two weeks after the accident a friend of his, Mohammed Annes was driving him around (T 271 line 24 – T 271 line 35). This was the first time Mr Annes’ name was raised. No claim on this basis was ever particularised formulated and Mr Annes was not called to give evidence in relation to what would have been an important role in the period immediately following the accident. The defendant submits that this is a further example of the plaintiff tailoring his evidence. Mr Annes’ name came up when the plaintiff was being asked about purchases using his bank card at a local fruit shop, Junman Fresh and Red Lea Chickens, within days of the accident, during periods he was incapacitated and could not even walk. The plaintiff confirmed that Mr Annes works in the city, and that he had spoken to him a month prior to the hearing and had his phone number (T 272 line 26 – T 273 line 4) and he is thus available to give evidence. Further, neither Ms Dannoui nor the plaintiff’s mother made any mention of him. I accordingly do not regard this evidence as reliable.
Another example of the plaintiff changing his evidence to explain the contemporaneous documentation occurred when he was asked about an entry in his bank statements which indicated he was in Bathurst in July 2016, a considerable distance from his home. He said that his wife had driven him (T 163) but, in cross-examination, his wife not only denied having been to Bathurst, but said she did not know where it was (T 311). The same was the case in relation to the plaintiff’s trip to Melbourne. He said his wife had travelled with him to Melbourne on occasions since the accident (T 265) but his wife said she had only been to Melbourne once with the plaintiff, and that was before the accident (T 335).

The most significant factor in relation to the claim for care is my finding that the plaintiff is not a witness of credit.

The plaintiff’s credit as a witness

Credibility of a witness in personal injury proceedings involves an assessment of the trustworthiness of that evidence in terms of whether or not it is consistent with the probabilities affecting the case as a whole and the other evidence in the case. Findings of credibility and reliability require a comprehensive and critical examination of the evidence as a whole, and should not be based on one element to the exclusion of others, but on all elements by which it can be tested in the particular case: Volzhenin v Haile 2007 BCCA 317 at [37]-[43].
Credibility is often significant in soft-tissue chronic pain claims where it is asserted there is a lack of objective evidence or inconsistent evidence. Where there is little objective evidence of continuing injury and where complaints of pain persist well beyond the time for normal or usual recovery, courts may remain sympathetic to the plaintiff. However, where there is significant evidence inconsistent with the claims of chronic pain and/or psychiatric disabilities, the court will adopt the kind of careful analysis which the Court of Appeal urged was necessary in Whalan v Kogarah Municipal Council [2007] NSWCA 5 and The Nominal Defendant v Kostic.
In the present case, I have rejected the plaintiff’s claim in relation to past and future economic loss and past and future care on the documentation before me, but an additional factor in relation to the home care claim (and, to a lesser extent, the economic loss claim) is the plaintiff’s lack of credit on these issues.
The plaintiff’s inconsistent and implausible evidence of the nature and extent of his domestic activities after the accident, as set out above, is wholly unconvincing. Where there is any inconsistency between the plaintiff’s description and the account of Ms Elder, I accept the report of Ms Elder. I am satisfied that the plaintiff was well able to carry out his pre-accident activities, apart from the period of four to six weeks during which he was suffering from soft tissue injuries.
However, the plaintiff called two witnesses in relation to his home care claim, and if the evidence of these witnesses were to be accepted, it would be a significant factor which would support the plaintiff.

The evidence of the plaintiff’s wife and mother

The plaintiff’s wife gave evidence of the plaintiff being so physically crippled that he was unable to attend even to personal hygiene matters to the present day. She had to get him out of bed, get him dressed and showered (T 305) and even wipe him after he used the bathroom (T 322).
The plaintiff’s wife was cross-examined about the material in Ms Elder’s report. She rejected all of Ms Elder’s conclusions in a vehement fashion, at times inconsistently with the plaintiff’s own evidence, in that he had made admissions concerning these issues. For example, she denied he had done any laundry or washing, bed making or shopping, although the plaintiff had acknowledged this not only to Ms Elder but in his evidence. She also denied that he had done any work since the accident (T 314-315), despite Mr Moosa describing the plaintiff as working from home within about two and a half months from the accident (T 393).
The plaintiff’s wife refused to make concessions or admissions where appropriate. For example, she would only concede, at the time of Ms Elder’s assessment, that the plaintiff was capable of washing a couple of plates (T 329) but insisted that he could not do anything more.
The plaintiff’s wife was, however, unaware of the plaintiff’s many activities buying and selling cars. The only additional car she knew of was a very old car which remained parked in the garage (T 309), which she could not describe. She was aware that the plaintiff had sold the gold Mercedes Benz and bought a Subaru in its place (T 309-310), but not of any of the other vehicles, even though the purchase and sale of these vehicles involved the plaintiff travelling to Queensland, Victoria and other faraway places.
The internal inconsistencies in the plaintiff’s wife’s evidence, the inconsistencies between her evidence and that of the plaintiff, the implausibility of the level of incapacity she describes the plaintiff as having and her dogmatic refusal to make concessions create a picture of a witness unwilling to assist the court by frank and honest testimony. Where there is conflict between the evidence of the plaintiff’s wife and Ms Elder, I prefer the report of Ms Elder.
The plaintiff’s mother’s evidence suffers from the same problems. For example, she said that before the accident the plaintiff’s wife did everything for him, including cleaning, cooking, washing, vacuuming and “everything the household needs” (T 351). This is inconsistent with the evidence of the plaintiff and his wife that he was performing a significant amount of household duties before the accident.
The plaintiff’s mother painted a graphic picture of her son being unable to do virtually anything in the home. She was obliged to visit on a regular basis in order to assist him. Despite this, she was unaware that the plaintiff had visited Queensland at the end of 2015 for the purpose of buying a car (or indeed that he made the visit at all). She was unaware he travelled to Bathurst, or made trips to Melbourne (T 348-349). Like the plaintiff’s wife, she rejected the observations made by Ms Elder in her report.
The plaintiff’s mother presented as a woman anxious to help her son. Where there is conflict between her evidence and that of Ms Elder, I prefer to accept the report of Ms Elder.

Conclusions concerning the evidence of the plaintiff’s wife and mother

I have not accepted the plaintiff’s wife and mother as witnesses upon whose evidence any reliance can be placed. Accordingly, their evidence is of no assistance to the plaintiff.

Conclusions concerning past domestic assistance and attendant care

Ms Elder accepted that for a month following the accident, from the period 7 July 2015 to 7 August 2015, the plaintiff would have required 4.125 hours of assistance in relation to household cleaning, spring cleaning, laundry, grocery shopping and travelling. Ms Elder accepted that it was reasonable for the plaintiff to receive 2.125 hours per week and thereafter 15 minutes per fortnight with assistance and spring cleaning tasks.
This falls well below the threshold under s 141B Motor Accidents Compensation Act 1999 (NSW). No allowance for past domestic assistance or attendant care should accordingly be made.
Claims for lawn mowing and car washing were also put before the court, accompanied by receipts.
The receipts in relation to car washing are unsatisfactory in that they appear to relate to three different cars, none of which are identifiably the plaintiff’s, and a number of the receipts are undated.
The receipts for lawn mowing are for very trifling sums ($178) which the defendant agreed to pay (T 453).

Future domestic assistance and attendant care

I have indicated that I accept the report of Ms Elder, namely that the only assistance the plaintiff would require would be assistance with spring cleaning for 15 minutes per fortnight or 7.5 minutes per week. The plaintiff can only be awarded damages for future domestic assistance if that can be made out.
The plaintiff must demonstrate not only a need for paid commercial assistance (which he did not do) but that gratuitous assistance to satisfy the need is or will be unavailable (ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 at [63]).
The plaintiff has long since recovered from the soft tissue injuries he suffered in July 2015. For the reasons set out in detail above, he has not made out any compensable claim for future care and assistance. Accordingly, no allowance for future assistance will be made.

Past and future out of pocket expenses

Past out of pockets are agreed at $10,010.53. The plaintiff’s explanation for failing to have psychological treatment since December 2015, namely that his psychologist had moved away and he did not feel comfortable speaking to anyone else (T 217-218) begs the question as to whether the plaintiff in fact needs to see either a psychologist or a psychiatrist. Dr George saw the plaintiff in April 2018 and did not consider he suffered from a psychiatric condition or recommend any treatment. I do not propose to make any allowance for further psychological treatment.
Although Dr Giblin suggests the possibly of surgery in the future, this is entirely speculative, and he has not exposed his reasoning for suggesting such surgery take place. I do not propose to make any allowance for this figure.
The plaintiff has continued to see his general practitioner on a regular basis and to request a great deal of medication from him. I am satisfied that the plaintiff has completely recovered from his soft tissue injuries and does not require any medication. Accordingly, I do not propose to make any allowance for future medication.
The plaintiff has not had physiotherapy since 2016 and has not made out any requirement to undergo this. A reference was made to hydrotherapy but the plaintiff gave no evidence of wishing to go to hydrotherapy and there is no medical evidence to support the necessity of such treatment.
The plaintiff may need to consult his general practitioner in relation to his current regime of prescriptions. A small allowance of $1,000 for future general practitioner and prescription items should be included.

Schedule of damages

I have summarised the damages to be award as follows:

Non-economic loss

NIL

Past economic loss

$25,000

Past superannuation

Not claimed – NIL

Future economic loss

NIL

Past out of pocket expense

$10,010.53 (as agreed)

Future out of pocket expenses

$1,000

Past care

$178 (as agreed)

Future care

NIL

Subtotal

$36,188.53

Subtotal less 50% (contributory negligence)

Total

$18,094.27

Orders

Judgment for the plaintiff for the sum of $18,094.27.
Costs reserved with liberty to apply.
Exhibits retained for 28 days.

**********

Decision last updated: 10 September 2019

Medium Neutral Citation:	El-Hassan v Stewart [2019] NSWDC 480
Hearing dates:	31 July 2019; 2, 5, 6, 7 and 14 August 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for the sum of $18,094.27. (2) Costs reserved with liberty to apply. (3) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – Motor Accidents Compensation Act 1999 (NSW) – contributory negligence – assessment of damages – conflicting medical opinions – absence of tax returns – whether attendant care services claim met the threshold – no issue of principle
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5R Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Motor Accidents Compensation Act 1999 (NSW), ss 126 , 138 and 141B
Cases Cited:	Amoud v Al Batat (2009) 54 MVR 167 Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 Falco v Aiyaz; Falco v Falzon (2015) 71 MVR 454 Giorginis v Kastrati [1988] 49 SASR 371 Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 State of NSW v Moss [2000] NSWCA 133 The Nominal Defendant v Kostic [2007] NSWCA 14 Volzhenin v Haile 2007 BCCA 317 Whalan v Kogarah Municipal Council [2007] NSWCA 5
Category:	Principal judgment
Parties:	Plaintiff: Fadi El-Hassan Defendant: Christine Stewart
Representation:	Counsel: Plaintiff: Mr M Sciglitano Defendant: Mr M Nesbeth Solicitors: Plaintiff: Brydens Lawyers Defendant: McCabe Curwood
File Number(s):	2019/3798
Publication restriction:	None

Past out of pocket expenses	$10,894 (Later agreed at $10,010.53: see T 453)
Future out of pocket expenses	$25,000
Past wage loss at $800 per week (212 weeks)	$169,000 [sic – $800 x 212 = $169,600]
Past superannuation 11%	$18,656
Future wage loss	$150,000
Future superannuation	$21,000 (future wage loss at 14%)
Past care 7 hrs x $23 per hour x 212 weeks	$41,552 [sic - 7 x 23 x 212 = $34,132]
Future care	$75,000
Total	$511,702 [The total, taking into account the later agreed past out of pocket expenses, the correct past wage loss figure and past care, amounts to $503,398.53]

Non-economic loss	NIL
Past economic loss	$25,000
Past superannuation	Not claimed – NIL
Future economic loss	NIL
Past out of pocket expense	$10,010.53 (as agreed)
Future out of pocket expenses	$1,000
Past care	$178 (as agreed)
Future care	NIL
Subtotal	$36,188.53
Subtotal less 50% (contributory negligence)
Total	$18,094.27