Fallah Doghooz v Nagy
[2011] NSWDC 193
•02 December 2011
District Court
New South Wales
Medium Neutral Citation: Fallah Doghooz v Nagy [2011] NSWDC 193 Hearing dates: 28/11/11 and 29/11/11 Decision date: 02 December 2011 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 65
Catchwords: Personal injury. Accident in a car park. Legislation Cited: Civil Liability Act 2002
Motor Accident Compensation Act 1999Category: Principal judgment Parties: Parvaneh Fallah Doghooz (Plaintiff)
Joseph Nagy (Defendant)Representation: D A Wheelahan QC and D Del Monte (Plaintiff)
D Wilson (Defendant)
W.D. Hunt (Plaintiff)
Hunt & Hunt (Defendant)
File Number(s): 2010/00144298 Publication restriction: No
Judgment
The plaintiff's adult life has been beset with a number of physically and emotionally traumatic events. She has had an abusive husband, her house has been burned down, her son has been rendered a paraplegic after a suicide attempt and she has suffered serious injuries in a motor vehicle accident. It is the latter event that is the subject of these proceedings. The plaintiff says the accident was caused by the negligence of the defendant. She seeks damages arising from this negligence.
Damages sought are for non-economic loss, past and future economic loss, past and future domestic care and medical expenses. The action is governed by the Motor Accident Compensation Act 1999 ("the MACA"). The Civil Liability Act 2002 (the "CLA") also has a part to play.
The defendant has denied liability and alleged contributory negligence. He also takes issue with the extent of injury allegedly suffered by the plaintiff.
The plaintiff's general background is set out in the Chronology (Exhibit C). I do not think it necessary to repeat the details.
The accident and liability
The versions of the accident respectively given by the plaintiff and defendant are so different that they effectively describe different events. The time and location of the accident however are not in dispute.
According to the plaintiff, at about 8.30am on 2 August 2008 she had parked her car on the purple level of the Westfield Shopping Centre in Hornsby. Her vehicle occupied the car space in which there is a white vehicle in photograph 5 in the Liability Photographs in Exhibit B. The spaces on either side were free except that one of them had a shopping trolley in it. The plaintiff, who was carrying a handbag and some documents, moved the trolley to the area with yellow lines, to be seen on the left of photograph 1. She then turned and made her way towards the area in which she can be seen in this photograph. The car spaces surrounding her (in the photograph) were then empty. She was walking in a diagonal direction generally towards her right. When she reached the line in the centre of the roadway (again as seen in photograph 1) a vehicle came around the corner (ie following the white line). It was going quickly and the driver was looking to his right towards a vacant car space on his right. The plaintiff waved her hands to try and attract his attention. She may then have dropped her handbag and the documents. The plaintiff's efforts to attract the defendant's attention were not successful and his car collided with her. By this time the plaintiff, in a panic, had turned around intending to get out of the vehicle's way. She was struck on her left side by the front of the car. She went up onto the bonnet and then fell to the ground.
Some passers-by pulled her out of the roadway to a position near the rear of her vehicle. An ambulance was called and she was taken to Hornsby Hospital.
The defendant's version is that he came around the corner (in the direction alleged) but travelling at a very low speed. He drove past the car space on his right. He stopped. He then began reversing towards the empty spot. Having travelled about a metre, in a straight line, he heard a muffled sound. He got out of his car and found the plaintiff lying parallel to the passenger side of his vehicle with her head facing towards the rear. He had not seen her before.
There are a number of reasons why I accept the plaintiff's version:
(a) I found the plaintiff to be a believable witness.
(b) Her version is consistent with her injuries. As a matter of common sense she must have been struck with some force to cause the fractures she suffered.
(c) The defendant's version is simply not feasible. If he had travelled only one metre then unless the plaintiff ran into the side of his car I cannot imagine her being injured in the manner that she was. Counsel for the defendant joined me in being unable to suggest a mechanism for the accident on his client's version.
(d) The defendant's version is inconsistent with the statement he gave to the police. The defendant did not accept that he told the police what was alleged despite having signed the officer's notebook.
(e) The defendant agreed that as soon as he approached the plaintiff she said he had been travelling too fast. This would be an extraordinary statement if he had simply reversed back one metre.
(f) The defendant in the witness box was confused about the location of the car space that he entered as well as the point where he stopped his vehicle before reversing. The diagram (Exhibit 1), which the defendant marked, is entirely inconsistent with his version.
Accepting the plaintiff's version it requires little more to find that the defendant was negligent. He was clearly travelling too fast, especially in a car park (no doubt with other pedestrians about), he was looking at the car space rather than the road ahead and he failed to keep a proper look out for persons using the general area. I do not think it necessary to examine the defendant's negligence in terms of Section 5B of the CLA but if I did the necessary ingredients would speak for themselves. I am also satisfied that the plaintiff has proved the negligence of the defendant as required by Section 5E.
The defendant submitted that on the plaintiff's version contributory negligence should be assessed at 25%. It was said that the plaintiff, having seen the defendant coming around the corner, could have retreated out of his path. I disagree. The plaintiff was crossing the roadway, the defendant suddenly emerged, travelling too quickly and leaving the plaintiff with little else to do but throw up her arms in despair. Even if the plaintiff can be said to have panicked this would not be unreasonable in the circumstances that she faced. Accordingly I do not think the defendant has established the existence of any contributory negligence.
Previous medical conditions and since the accident
The plaintiff's injuries were widespread. She has had four operations to deal with the fractures to her left leg. There is absolutely no dispute about the nature and extent of the leg injuries. They have left the plaintiff with a good deal of pain as well as very significant scarring (Exhibit E). The plaintiff is embarrassed by her appearance. She shuns the swimming pool and no longer wears a skirt.
The plaintiff also alleges an injury to her neck and to her back. She noticed both of these problems about two months after the accident.
The plaintiff has suffered from back pain since she was about 16 when her sister pulled a chair from behind her and she fell to the ground injuring her "tailbone" . Since then the plaintiff has required treatment including medication. Her back condition, however, has never affected her capacity to work or to engage in any social activities. I do note however that the plaintiff does not have an extensive work history and there appears to have been limited, if any, periods of full time employment.
Prior to the motor vehicle accident the plaintiff spent time on a treadmill, rode a bicycle twice a week, jogged every day with her daughter and was generally fit.
In addition to the physical injuries the plaintiff has suffered a psychiatric injury. A causation issue arose in respect of this injury.
The plaintiff relied on the certificate of a MAS Assessor to entitle her to non-economic loss under Section 131 of the MACA. This assessment was for a psychiatric injury. The question arose as to whether the assessment could be treated as the final word in relation to the causation of this injury for purposes of every head of damages. The defendant submitted that the causation finding implicit in the certificate (as a result of Section 61 of the MACA) could only be used in respect of non-economic loss. The plaintiff still needed to prove causation if the psychiatric injury was to be relevant to other heads of damages. This could raise the bizarre result of the psychiatric injury being taken into account in the assessment of non-economic loss but being found to be not relevant to the other heads of damages. I do not think I need enter into the legal discussion because ultimately the plaintiff accepted the defendant's assertion about the legal effect of Section 61. The plaintiff, however, and I agree, submitted that causation in respect of the psychiatric injury was so clear that any finding derived from the MAS Certificate was not necessary.
The defendant submitted that a number of other events, such as the suicide attempt (and its consequences), by the plaintiff's son have no doubt had an affect on her. She has also had a longstanding dispute with her former husband who emotionally and physically abused her. The Chronology lists the many consultations, and the medication, that the plaintiff had before her accident.
The difficulty with the defendant's case is the marked difference that has come upon the plaintiff since the motor vehicle accident. I have no doubt that other events in her life have had an effect. The accident to her son would have been extremely traumatic for the plaintiff. I do, however, accept the plaintiff about the nature of the relationship she had with her son and the limited psychiatric impact his accident had upon her.
In relation to employment, the plaintiff trained in Iran as a hairdresser. She also did a tailoring course but this was at the insistence of her mother and was not an occupation she wished to follow. She was intent on pursuing the trade of a hairdresser and she had the advantage of a specialist interest in "Threading" (removal of facial hair) and creating the "up style" favoured by women especially when attending formal functions. The former specialty is apparently much sought after by Persian and Muslim women.
The plaintiff worked as a hairdresser in Iran. When she moved to New Zealand the plaintiff requalified and worked as a hairdresser. After coming to Australia she again attended courses to requalify and obtain her hairdresser's licence (Exhibit D). She initially helped a friend at a salon in Granville. In about 2007 the plaintiff started working on a part-time basis at Hair Link in Hornsby. This is a salon operated by Ms Deborah Smart. She was paid about $80 per week.
In March 2005 the plaintiff gave up her job in order to travel with her daughter to Iran for about three months. Upon her return she contacted Ms Smart who offered her fulltime employment to commence on 4 August 2008 (two days after the accident). The documents the plaintiff was carrying when she had her accident were being taken to the salon for purposes of her employment.
Ms Smart gave evidence. She was very impressive. She was forthright and had a clear and unshaken recollection of the plaintiff and her value as an employee. The plaintiff's specialties, which I have mentioned above, were a great asset to the salon and Ms Smart was particularly keen to have the plaintiff rejoin the salon on her return from overseas. This was not only because she had impressed as a good worker but also because there were vacancies in the salon which needed to be filled. Ms Smart described the plaintiff, when she had worked for her in 2007, as always smartly dressed, very open and very friendly. She was good at listening, a characteristic of some value in a hairdressing salon.
Ms Smart had not seen the plaintiff until coming to court, since about two weeks after the accident. She said she did not recognise the plaintiff who now appeared "daggy" and she observed that the plaintiff's hair had not been done. The change in the plaintiff's appearance is consistent with her depression and no doubt lack of interest in her appearance.
Although the plaintiff had not worked on a fulltime basis in Australia before the accident, her position had altered to the extent that by 2008 she was a single woman, unsupported by her former husband, and having the care of her daughter. Her son was living independently.
I see no reason to doubt the evidence of the plaintiff, or of Ms Smart, that the plaintiff was about to commence fulltime employment. She was to be paid at the award rate and with occasional overtime and bonus payments could have received between $755 and $820 net per week. These figures are the basis for the economic loss claim.
Although the plaintiff's claim was put at the above figures I think it appropriate to base her loss on $700 per week. She was commencing fulltime employment for the first time in Australia, she had a daughter to care for and she had a history of back pain which may not have greatly affected her previously but may have had some impact after commencing fulltime work.
The plaintiff has not worked since the accident. She made an attempt to complete a beauty course but was unable to perform the final three days of clinical practice. This was due to her injuries.
In June of this year the plaintiff was admitted to the Concord Repatriation General Hospital following a suicide attempt in which she took an overdose of medication. Although she accepted that a number of factors were behind her attempt the plaintiff said that her state was a culmination of the upset consequent upon her accident that had deprived her of her ability to work and "do things" with her daughter. She also described an overwhelming anger at her predicament.
The plaintiff accepted that her son's suicide attempt, on 10 October 2008, was a very distressing event. She said, however, that she was not greatly emotionally affected by it. This was because her son was a "typical Iranian male" who, like his father (and because of his father), treated her without respect and in a manner suggesting that she, as a woman, occupied a somewhat subservient status.
The plaintiff said that for about five or six months after the accident she relied on two crutches. She then depended on a walking stick for about another 18 months or two years. She was assisted in her domestic activities by a gentleman friend (Majid) who at one stage moved in to her residence to assist her. During his occupancy an intimate relationship developed between the plaintiff and Majid but came to an end after about a year. He then moved out. Since then the plaintiff has depended on her daughter for assistance. She said that her daughter was providing about three hours help on the weekend as well as half to one hour per day. The plaintiff accepted that her daughter would have been brought up to assist in the house but she said that at her daughter's age of 14, she would not have required her to carry out heavy tasks like vacuuming and cleaning the bathroom.
Damages
I do not intend to set out in detail the particulars of the plaintiff's injuries. They are clear from the medical reports and the Chronology (Exhibits B and C). The plaintiff's leg injury is accepted. I do need however to say something about the psychiatric injury and the neck and back allegations.
The defendant relied upon the report of Dr McMahon, a psychologist, to suggest that the plaintiff's case in respect of her psychiatric injury should not be accepted. Dr McMahon's absence of a conclusion is based on his finding that the plaintiff had exaggerated her symptoms to an extent that she was not reliable.
Dr Kossoff, a psychiatrist, had Dr McMahon's report when she assessed the plaintiff for the purposes of preparing a certificate for the Motor Accident Assessment Service. She also noticed some inconsistency in the plaintiff's history; however, it did not prevent a finding that the plaintiff was "significantly depressed" .
In addition, Dr McClure, also a psychiatrist, was able to reach a conclusion which found a major depression as a result of the accident. His conclusion, of a 14% whole person impairment, is consistently similar to that of Dr Kossoff.
I prefer the opinions of Drs Kossoff and McClure to that of Dr McMahon. This is not to say that I do not think that other events in the plaintiff's life have not taken their toll and would not, but for the accident, have had an effect on her. They are not, however, responsible for the major depression from which the plaintiff now suffers and which has, and has had, a marked effect on her daily life and capacity to work.
The plaintiff obviously has a long history of problems with her low back. These problems have been productive of visits to the medical profession. She has seen general practitioners and had x-rays. She has been prescribed pain killing medication. She even had an x-ray in Iran during her trip in early 2008. Notwithstanding these problems I am satisfied that the plaintiff's back condition was never such that it markedly affected her capacity to enjoy social activities or to carry out employment. However I acknowledge that the plaintiff's history of fulltime employment is very limited and her back condition may have been a factor in fulltime employment. Accordingly, I do think it needs to be taken into account in assessing the plaintiff's future economic loss, which I will do by way of increased vicissitudes.
I am satisfied that the plaintiff's back condition since her accident is substantially worse than before the accident.
I am also satisfied that the plaintiff has suffered an injury to her neck which has produced pain and some limitation of movement. It is not the subject of much medical comment and I can do no more than conclude that the plaintiff has suffered a soft tissue injury to her neck but I can reach no conclusion about the specific nature of the injury or its prognosis.
The defendant's submission was that non-economic loss should be assessed at $150,000. The plaintiff submitted that $230,000 was the correct figure. I think these respective submissions represent the correct range.
On the basis mainly of the very serious leg injury, including the scarring, and the psychiatric injury but also taking into account the plaintiff's back and neck conditions, I assess non-economic loss at $200,000.
In relation to past economic loss, as I have said above, I see no reason to doubt the offer of fulltime employment that had been made to the plaintiff. I am also satisfied that the plaintiff has not been able to work since her accident.
Dr Conrad thought the plaintiff might be able to work as a hairdresser or "similar shop work" for about 12 hours per week provided she could sit or stand at will. He placed other limitations on her capacity to work.
Dr Brooks, the plaintiff's treating orthopaedic surgeon, said the following about the plaintiff's capacity for work:
"Regarding fitness for employment, Mrs Doghooz is unable to stand for more than a short period and is no longer fit for her previous occupation as a hairdresser. She is fit for work that can be done predominantly in a seated position, such as office work. She would like to do a course in beauty therapy but has had to suspend this because of her ankle symptoms. It appears that her skills and interests lie predominantly in the hairdressing and beauty therapy areas, and these will present some ongoing difficulty to her because of her difficulty standing or walking for more than a short period."
It is notable that Dr Brooks' comments were made before the plaintiff undertook the beauty course and he was unaware of the difficulties that she experienced with the practical element.
Dr Noll, an orthopaedic surgeon, retained by the defendant, had a generally similar view in relation to the plaintiff's fitness for work. He said the following:
"I would accept that Ms Fallah Doghooz would have difficulty undertaking work which would require her to stand or walk for protracted periods. The limitations could preclude her from undertaking work as a hairdresser or beauty therapist.
She would be able to undertake semi-sedentary work, which would allow her to sit and stand at intervals. She may benefit from formal rehabilitation, which would include vocational assessment, guidance regarding suitable work options and advice regarding job seeking skills."
In my view, the plaintiff's condition, both physical and psychiatric, has prevented her from working at all since the accident and she is entitled to full economic loss. There have been 173 weeks since the accident so that the calculation is 173 x 700 = $121,100. The plaintiff is also entitled to lost superannuation benefits, which I assess at 11% of the net wage loss. The figure is $13,321.00.
For purposes of Section 126 of the MACA I am satisfied that but for the accident the plaintiff would have continued generally in fulltime employment into the future but she would from time to time have been beset with some back problems and perhaps emotional problems. These problems would probably have interfered with her ability to maintain constant employment and may well have resulted in her stopping work before the age of 65. The latter finding arises principally from her longstanding back condition. I think the appropriate way to deal with these probabilities is to increase the normal vicissitudes to 25%.
The defendant submitted that I should approach the matter on the basis of a 'buffer' of $100,000. While a buffer can be consistent with Section 126, in a case such as the present, I think it preferable to reach a conclusion on the plaintiff's lost capacity in weekly monetary terms.
I am satisfied that although the plaintiff at the present time is totally unfit for work, that she does have a retained capacity which she will be able to exercise in the future. The plaintiff has achieved significant skills in the English language and, as suggested by Drs Conrad, Brooks and Noll, she may be able to do office work, or something similar, within the bounds of her being able to sit and stand at will. Assuming a future total lost weekly income of about $750 net per week I assess the plaintiff's lost capacity at $450 per week. On the 5% tables to age 67 and reduced by 25% the calculation is: 450 x 693 x .75 = $233,887.50.
Lost future superannuation benefits, again at 11%, are $25,727.62.
The plaintiff's past care claim is made pursuant to Section 128 of the MACA. It is based mainly on the report of Ms Katherine Whitmore, an occupational therapist. The defendant concedes there is an entitlement to these damages but not to the extent claimed and not for the whole period since the accident. The defendant agrees that the plaintiff has required care but says there have been extended periods when the '6 hour per week' threshold has not been overcome.
The plaintiff's claim as expressed in the Final Statement of Particulars dated 28 November 2011 is for a total of 1,891 hours at $25.00 per hour. The rate is obviously the product of averaging. The defendant did not oppose this method, although I think, based on the relevant tables, an average rate of $24.00 per hour is more correct. There have been 173 weeks since the accident so that the claim is for about 11 hours per week. The reports of the occupational therapist provide some analysis of the hours. However, there are some difficulties adopting the report because it includes matters, such as companionship and liaising with medical staff which, in my view, do not qualify as domestic care.
Dr Noll, for the defendant, suggests the plaintiff requires "approximately two to three hours of paid assistance alternate weeks" .
Dr Conrad, for the plaintiff, thinks the plaintiff "might need 10 hours per week of Home Care assistance" .
The plaintiff is currently being assisted by her daughter. As I have said she receives about three hours assistance on the weekend plus half to one hour during each weekday. The plaintiff made it clear that she works with her daughter and that she does not have a total incapacity for domestic activities. In regard to the past I think the right approach is to recognise that there would have been times, such as following operative procedures, when care would have been at a significantly higher level than it is now. There would also have been times when the plaintiff was able to do more housework than usual. I will average the past care at eight hours per week. In arriving at this average I stress however that I accept that the plaintiff has received more than six hours of care per week. I therefore assess past domestic care as follows: 24 x 8 x 173 = $33,216.
In relation to the future, the claim is for paid care at $35.00 per hour. The defendant led no evidence to challenge this rate and I accept it as appropriate. The claim is for 8.75 hours per week. The defendant suggested this was excessive and submitted that two hours per week met the plaintiff's requirements. I agree that the plaintiff's claim is excessive but not to the extent suggested by the defendant. The plaintiff has real problems with domestic activities derived mostly from her physical condition but with some input from her psychiatric state. She currently has the assistance of her daughter but this will not be permanent as sooner or later her daughter will no doubt commence to live independently. In my view, four hours per week for the balance of the plaintiff's life expectancy is reasonable. The calculation is: 4 x 938 x 35 = $131,320.
Past out of pocket expenses were agreed at $8,830.40.
The plaintiff has claimed $67,794.13 for future medical expenses. The defendant did not suggest an alternate figure but submitted the plaintiff's assessment was too much.
The plaintiff takes a good deal of medication. She will require physiotherapy from time to time and also probably surgery. Dr Noll envisaged the possibility of a "gradual increase in the severity of the symptoms if progressive degenerative changes occur" . He thought that if the plaintiff's symptoms became more troublesome then arthroscopic debridement of the joint would be a treatment option. He envisages a "small possibility" of an ankle replacement arthroplasty. Dr Brooks seems to be of a similar opinion to Dr Noll, although he did not foresee an ankle joint replacement, if at all, for many years.
Dr McClure said the plaintiff will require treatment by a psychiatrist and also by a clinical psychologist. She will need to continue to take antidepressant medication.
On the basis of the medical opinion it is difficult to assess a weekly amount for medical expenses. I think a buffer approach is justified. I allow $35,000.
A summary of the damages I have awarded is as follows:
| Non-economic loss | $200,000.00 |
| Past economic loss | $121,100.00 |
| Past superannuation | $13,321.00 |
| Future economic loss | $233,887.50 |
| Future superannuation | $25,727.62 |
| Past care | $33,216.00 |
| Future care | $131,320.00 |
| Out of pocket expenses | $8,830.40 |
| Future out of pocket expenses | $35,000.00 |
| Total | $802,402.52 |
The above total needs to be reduced by $881.40. This is the amount of medical expenses paid on behalf of the defendant and raised as a defence under Section 81 of the MACA.
I make the following orders:
(a) Verdict and judgment for the plaintiff in the sum of $801,521.38.
(b) The defendant is to pay the plaintiff's costs of the proceedings.
I will hear the parties on any amendment to the costs order arising from Offers of Compromise that may have been served.
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Decision last updated: 07 December 2011
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