Faraj v Fernando

[2018] NSWDC 313

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Faraj v Fernando [2018] NSWDC 313
Hearing dates:	31 January 2018; 1 and 16 February 2018
Date of orders:	27 April 2018
Decision date:	27 April 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff for $63,826.57. (2) Defendant pay the plaintiff’s costs, with liberty to apply. (3) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – assessment of damages
Legislation Cited:	Motor Accidents Compensation Act 1999, s 83, s 111, s 126
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 Brown v Lewis [2006] NSWCA 87 Commonwealth Bank of Australia v Falzon [1998] VCA 79 Glen v Sullivan (2015) 71 MVR 417 Graham v Baker (1961) 106 CLR 340 Jones v Dunkel (1959) 101 CLR 298 Kendirjian v Ayoub [2008] NSWCA 194 Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 McGlen-McLeod v Galloway [2012] NSWCA 368 Merhi v Ford Motor Company of Australia Ltd [2014] VSCA 328 Pham v Shui [2006] NSWCA 373 Seltsam Pty Ltd v Ghaleb [2005] NSW 208 Sretenovic v Reed [2009] NSWCA 280 State of New South Wales v Moss (2000) 54 NSWLR 536 Sutherland Shire Council v Major [2015] NSWCA 243
Category:	Principal judgment
Parties:	Plaintiff: Hussein Faraj Defendant: Thusiru Fernando
Representation:	Counsel: Plaintiff: Mr G Hickey Defendant: Mr J Catsanos   Solicitors: Plaintiff: Premier Compensation Lawyers Defendant: Hall & Wilcox
File Number(s):	2016/255821
Publication restriction:	None

Judgment

Introduction

1. The plaintiff by statement of claim filed on 25 August 2016 seeks damages arising from injuries suffered on 14 November 2013 when he was getting into a car which was struck by the defendant’s vehicle. The defendant’s compulsory third party insurer admitted liability by a letter dated 4 July 2014.

2. The issues the subject of this judgment relate to the assessment of damages only. The plaintiff is not entitled to non-economic loss. Past out-of-pocket expenses are agreed at $23,826.57 and the plaintiff claims only a cushion for future out-of-pocket expenses. The significant issue is the degree of past and future economic loss.

3. The issues identified by the defendant, and as effectively agreed to by the plaintiff, are as follows:

1.   The plaintiff’s credit.

2.   Inconsistency between the plaintiff’s evidence and the surveillance evidence.

3.   Whether the plaintiff has any accident-related disability and if so, the extent.

4.   The significant and role of the plaintiff’s documented prior workers compensation injuries.

5.   The amount and nature of the plaintiff’s income over time including; the assessment of the plaintiff’s pre-injury earnings and his earnings but for the accident.

6.   Whether or not the accident caused any impairment of the plaintiff’s role in his pre-accident employment.

7.   The existence, nature and extent of any past economic loss.

8. The application of s.126 of the Motor Accidents Compensation Act 199 and whether the plaintiff has any accident-related future loss of earning capacity. If so, its extent.

9.   The extent of any past treatment expenses incurred as a consequence of the accident.

10.   Whether the plaintiff has any accident-related need for future treatment. If so, its extent.

11. If applicable, the application of section 111 of the Motor Accidents Compensation Act 1999.

4. The parties have each provided a schedule of damages which are set out at the end of this Judgment.

5. The plaintiff agrees that the principal incapacitating injury relates to his right shoulder, although for periods of time he was affected by injuries associated with his neck and right knee (written submissions paragraph 2). For that reason, it is not necessary to set out the injuries and disabilities identified in the statement of particulars. However, while the plaintiff agrees that problems in relation to his right knee and neck were no longer an issue at the time of hearing, they were relevant to his past economic loss (see the report of Dr Bodel, Exhibit A, pages 2 and 135 in relation to injuries to the plaintiff’s upper back, ulnar border of the right forearm, hand and right knee).

6. A substantial attack on the plaintiff’s credit was brought by reason of surveillance evidence which was the subject of careful analysis by the medical practitioners whose reports were tendered.

7. One of the difficulties during the trial was the change of basis upon which the claim for past and future economic loss was made. An expert report prepared on the basis of economic loss based on the cost for replacement of the plaintiff’s labour was largely abandoned at or shortly before the hearing, and the claim put forward on a series of alternative bases, which are set out more fully below.

The plaintiff’s work history prior to the accident

8. The plaintiff, who presented as an articulate and well-educated young man of 33 years of age at the time of trial told the Court that he had been in full-time employment since completing year 12 at Kogarah High School in 2002. His educational qualifications go well beyond the forms of employment he has sought during his working life. Between 2003 and 2004 he attended the Power Business Institute gaining a Diploma in IT, Business Analysis and Network Engineering as well as obtaining Certificate IV in Workplace Assessment Training and he also has what he called “three quarters of a law degree”.

9. Between 2005 and 2012, the plaintiff assisted his parents at their pizzeria in his spare time. By reason of his business studies and computer skills, this included administrative tasks and dealing with the business finances. At the same time, he obtained full-time employment with NSW Railways as a Transit Officer, graduating to the role of Senior Transit Officer and Trainer.

10. The plaintiff married in 2006 and he and his wife have five children. He spoke in high terms of his wife as being not only a housewife but someone who had considerable financial acumen; he told the court his wife worked full-time, as well as running the household and being the principal carer for their children.

11. Apart from a minor incident in April 2005, when the plaintiff attended St George Hospital complaining of headache and neck pain, the plaintiff enjoyed good health until he suffered an injury of some significance in 2008 while performing defence tactical training work. This injury, to his neck and right shoulder, required three years of treatment, which included physiotherapy, steroid injections, pain management courses and the like. He continued to work in a modified capacity until he was retired as medically unfit in approximately late 2011.

12. The plaintiff described his injuries and ongoing treatment as follows:

Q. In any event, what parts of your body were you having symptoms in at the time?

A. My neck, my shoulder and my scapula.

Q. And after that time, you embarked upon a relatively extensive and lengthy period of treatment. Is that correct?

A. That's correct.

Q. You had various periods of time off work during‑‑

A. That's correct.

Q. ‑‑that period of time? And some of those were extended periods?

A. Majority of the time, I - I continued to work, so I went from being a just transit officer then to a senior transit - sorry, senior transit officer trainer to going to the SCC, security control centre.

Q. Right.

A. So, I was doing it and I was allowed the time off, yeah, when necessary to do treatment to take off. So, yes, there was blocks of time off that I took off work.

Q. When you were in the SCC section, what sort of work were you performing there?

A. Just security monitoring, so just watching the TVs and monitoring what's going on in the network and, if there's an incident, calling the appropriate people to respond.

Q. As time continued, you had further treatment. Correct?

A. That's correct.

Q. Then ultimately, were you reassessed in terms of your ability to go back to being a senior transit officer?

A. Before that, they actually made me medically unfit. So, part of the process was to continue to have medicals, and one of the‑‑

Q. When were you made medically unfit, if‑‑

A. Sorry, so, the dates the senior would have been a bit earlier, because it would have been about 2008/2009. So, it would have been about it - because when I became a senior transit offer(as said) trainer, I was only there for about a year before the injury as a trainer. So, then I got injured. About a year after that, I'm - I'm - I'm assuming that they - about a year after that, is where they - or 2011, I think it was about there, they make him - yeah, end of 2011, they made him - they made me medically unfit.

Q. Medically unfit?

A. Yes.

Q. What happened after they made you medically unfit?

A. They sent me home and I was getting payment while I was at home, and in the interim, I kept basically trying to get back to work and continued to push and get other medicals, because I had to pass a medical to be able to go back within 12 months. So, I kept arguing that, "No, I - I can go back," and I kept doing the medicals until I was made, you know‑‑

Q. So, ultimately, you attended the medical and you passed the medical?

A. Yes, I did.

Q. Then you returned to your former duties?

A. Yes, I did.

Q. Then up until the time that you took your redundancy, did you perform your normal duties?

A. Yes, I did.

Q. Now, I take that, albeit that you returned to your full duties, you still had difficulties or you still had some symptoms in relation to your neck, shoulder and scapula?

A. I did.

Q. There was never any full recovery from that?

A. There wasn't. (T 27.17-28.37)

13. In 2012 the plaintiff decided to acquire a business and opened a takeaway chicken shop called “Chickenlicious”. From January 2013 onwards he would work the morning shift at Railcorp and then spend the rest of the day working at his shop together with his wife. There was one employee at this time, a man named Ali.

14. The plaintiff described how he came to set up his business as follows:

Q. At some stage in 2012, you decided to acquire a business. Is that correct?

A. That's correct.

Q. How was it that you came upon that particular business?

A. It was because of the injury earlier. I figured I needed something - if something was to happen to me one day or something was to occur, I need something to have in the background or fall back on.

Q. Right.

A. I've been brought up in a household, we've always had businesses. So, my parents have been in businesses since day one. So, then I decided to establish a shop and then have that shop running where I'm still at work in RailCorp and have - or at the time, still working and then coming after work and opening up after hours. At - and that's how it first started with the chicken shop.

Q. That continued between 2012 and 2013, when you took the redundancy?

A. That's correct.

Q. So, during that period of time, your work with New South Wales Rail was full‑time?

A. Yes, I was.

Q. And your work at the chicken shop was over and above the full‑time work that you did?

A. That's correct. (T 28.39-29.14)

15. He explained his reasons for accepting a redundancy in 2013 as follows:

Q. Was there any reason why you accepted the redundancy?

A. It was a really good package. It was a voluntary redundancy. We got offered two choices: to join the New South Wales Police Force or to take the redundancy but we were also offered within 12 months - you take the redundancy and 12 months later, you could then reapply to join the New South Wales Police or go back into the transit officer role. So, the money was too good and then I decided to - if I took the money, I could build up this business much larger so then I invested the, the redundancy into the business and built the business up further.

Q. How much was the redundancy at the time?

A. I think after tax, after everything, it was about 90,000 or a hundred thousand dollars clear.

Q. And did you invest that directly into the‑‑

A. Yes, I did.

Q. Insofar as the New South Wales Police Service was concerned or the New South Wales Railways were concerned, did you have any intentions at that stage about returning to that employment at some stage?

A. It was always just a fall back so I always could go back if I needed to but my endeavours were to try to build up this business and having a, a very good, solid business but in the interim, that if it did ever fail, I was - you know, obviously, I had the fall back to always go back to New South Wales Police or RailCorp. (T 29.20-.44)

16. The plaintiff described the chicken and kebab business he set up as follows:

Q. When you first bought the business in 2012, what was the nature of the business?

A. Okay. We used to do - we used to have fresh chicken and we did have a small cook section where you could actually choose the chicken you wanted and then we would cook it for you but you would buy the fresh chicken and it would go be cooked for you. Mostly, dominant it was all fresh chicken and fresh produce. So, even kebabs, we used to have everything but you could not buy it cooked. Most of the stuff, you had to take it home and cook it.

Q. When you say "fresh produce" I take it that was chickens, parts of chickens, pre‑prepared dishes.

A. Yeah.

Q. Things of that nature?

A. Yes.

Q. All of which needed to be cooked aside from that small portion of the business where you would taken an item and cook it on behalf of someone.

A. That's correct.

Q. Was that normally by order? People would order that in advance?

A. By order, yes. Because it was an afternoon thing, it was mostly catering by order and people just waited there.

Q. When was it after you came into the business that you decided to change the nature of business?

A. It was about the redundancy. So, once we decided we had this money so me and my wife sat down and we've started to think what we should do and then we figured the best way is to invest and grow the business because we knew that the fresh food side is completely different to the cooked section. Cooked section has a lot of money. There's a lot of increase in profits on cooked food other than raw food. Raw food margins are much are more than cooked food margins. So, then we decided to inject the money into it and expand the whole thing into a restaurant, slash, fresh chicken.

Q. When did your wife first come to work in the business?

A. Once I went back - she started with me when we first established the business. So, we were working together. She used to only work limited hours because she had the kids. So, only once she'd dropped the kids off to school, then came and then after school. She stayed with me for a while after and then after the injury, that's probably about six, seven months, she stopped working there.

Q. We'll come back to that later but in any event, after you decided to change the nature of the business to effectively sell cooked food, insofar as the preparation of the raw food before the cooking was concerned, was that purchased in a premade for or was that something that you prepared?

A. No. We prepared it all. Yeah. We used to prepared everything in shop.

Q. Just tell us about the preparation in terms of the uncooked food into an item which you would then cook and just tell us about‑‑

A. Okay.

Q. ‑‑what that process was?

A. So, I'll give you an example. So, shawarma, shawarma is made from breast and thigh chicken. So, there's two sets - ways to do it. If you, if you don't want how - okay. So, you've got the breast and thigh. We use two ways. One's a strip version and one is a stackable version. The stackable version is the Turkish style where you stack them on top and you, you keep taking them marinating them and go - the strip version - the other version‑‑

Q. That's known as the Doner kebab, isn't it?

A. The Doner kebab, yeah. (T 29.46-31.8)

17. It is clear from the plaintiff’s description that the work in question was arduous and required a degree of physical effort from both himself and his wife. He said that he and his wife did all the vegetable chopping, but when it came to the making of the food, he was the only one who knew how to do it (T 32). He had an employee named Chubby (T 32) whose name he did not now recall, following which he hired a Mr Zahir Islam, a few months prior to the accident the subject of these proceedings.

18. Mr Islam’s job was as follows:

Q. What work was he doing around then?

A. So, when my wife used to leave, they used to come. So, during the times when my wife had to go home, she used to go home about 2.30, so they used to come and work with me but they would take orders, they would help. I would make the food and wrap the sandwiches.

Q. When you say, "They'd take orders and help," I understand the taking of the orders. By "help" what other tasks did they do?

A. Whatever I needed. So, if I told them to put chips down, they used to cook chips, get some things so it was just an allrounder, just doing anything, like, whatever was missing at the time needed to be done.

Q. During that period of time, they acted at your direction, did they?

A. Yes, they did. (T 33.38-34.1)

19. The plaintiff told Dr Menogue (Exhibit A, p. 231) that he worked long hours in the chicken shop and that his wife “would support him” in this work. However, “she had four children and indeed became pregnant (this child is now two months old) so there was a need to obtain additional work personnel anyway”. Dr Menogue was told that she ceased work at the chicken shop “on or about November 2013” (p. 231), at a time shortly after the plaintiff’s accident.

The plaintiff’s accident

20. The plaintiff described the accident he suffered as follows:

Q. Leading up to the date of the accident - and I don't think there's any issues in relation to this, are there - no. In any event, if you could just describe what occurred on 14 November 2013?

A. Okay. So, normally what happened is I used to go open the shop, get everything ready, leave - because the kebab takes a while to cook, right, so whatever. Then I used to go get whatever product I needed. So, I used to close the front doors of the shop. So, at that time, I buy my stuff from Serman(?) who's a fruit shop in - on Wollongong Road, monthly. So, I was there to pick up some products for my shop. So, I went there to pick up product. I was - I got in, got it the stuff, put it in the boot, went to close my door and a guy came around and slammed my door and I was halfway in and out of the car and I got hit.

Q. Once you were hit, what happened immediately after that?

A. Really, after the accident, I was in a lot of pain, obviously, and I went to Dr Guirguis. I rang up the workers, I rang up my wife so, said, "Look, I, I can't come in. I've got to go there". I went to the shop straight after for about an hour and I just couldn't take the pain. I went to Dr Guirguis. I had no staff so I had to - I went back there so - I think and the next day I just couldn't breathe any more. The pain, especially, the pain around the ribs, was really, really bad, back, the knee, because it was just sore so I ended up going to hospital.

Q. Right, and you ultimately went, I think, to the St George Hospital. Is that correct?

A. Yes, I did.

Q. By the time you got to the St George Hospital, if you could just briefly outline the parts of the body that you were having difficulty with?

A. My shoulder, my‑‑

Q. When you say your "shoulder" which shoulder are you referring to?

A. Sorry, my right‑hand side shoulder and my ribs and my knee.

Q. And your knee?

A. That's correct.

Q. And after that time, did you continue to attend Dr Guirguis, or did you also go to another doctor called Dr Le?

A. I went and saw Dr Le as well.

Q. And to the present time, who were your treating doctors?

A. Yeah. I - basically, I've seen Dr Le, and then it's always been just a specialist. Dr Mel Cusi is my actual doctor. So he's the one I used to see most of the time. He was the referral‑‑

Q. He's an orthopaedic surgeon.

A. Yes. (T 34.3-.49)

21. The plaintiff also contacted the insurer and was put in touch with a rehabilitation provider (T 35).

21. The plaintiff was unable to attend work at his business (variously described as being named either “Chicken Licious” or “Chickenlicious”) for the period following his accident (14 November 2013) until about January 2014. He underwent an assessment with Recovre Rehab to obtain a breakdown of his duties for the purpose of return to work. His first return to work agreement was put in place on 14 January 2014, two months to the day from the accident. This comprised of stages 1 to 5 of the recovery plan.

22. The plaintiff told Dr Nigel Menogue (Exhibit A, p. 235) that he remained off work for approximately four months (i.e. for a further two months after the 14 January 2014 commencement of the return to work). He also told Dr Menogue that he hired two staff immediately after the accident and that a third staff member joined later. I note that, according to the plaintiff’s statements to Dr Menogue as set out above, the plaintiff’s wife stopped work at about this time as well, although slightly different times (and reasons) were given by the plaintiff in his evidence.

23. On 11 February 2014 the plaintiff was given a Return to Work agreement by a Ms Cooray of Allianz. Unbeknownst to the plaintiff, he was also put under surveillance for 11, 12 and 15 February 2014. A second Return to Work agreement (25 March 2014) was entered into and unbeknownst to the plaintiff further surveillance was undertaken between 26 to 29 March 2014.

The plaintiff’s medical treatment over the year following his accident

25. The plaintiff had driven to work following the accident but experienced chest pain and breathing problems, so a friend managed the chicken shop for him for several days while he rested at home.

26. Four days after the accident, he remained in pain, and went to St George Hospital. The Discharge Summary from the hospital shows chest wall injuries only; imaging of the chest and right shoulder did not reveal abnormalities. There is reference to the plaintiff’s prior right shoulder injury in the Discharge Summary, but not to other medical issues, although the plaintiff told the court that he was having knee problems at this time.

27. The plaintiff continued resting at home until he saw his general practitioner, Dr Le, another four days later, on 21 November 2013. He consulted several general practitioners over this period, and in particular Dr Parras, who had been the doctor whom he had consulted about the 2008 shoulder injury. He was referred back to Dr Cusi, who had managed this previous injury. Dr Cusi recommended that the course of physiotherapy started by the plaintiff in early 2014 should continue. He referred him for an MRI of the right knee which was performed on 11 April 2014 and later referred him for an MRI on his right shoulder, which was performed on 13 June 2014. This MRI noted mild supraspinatus tendinitis without evidence of rotator cuff tear. The only other changes of note were a progression of the degenerative changes noted over the right AC point (when compared to the previous 2011 study) and a small subacromial bursa but with no labral tear. Previous findings of chronic capsulitis were noted, and these had also progressed.

28. Dr Cusi did not consider surgery was warranted. The plaintiff was, however, referred to Dr Papantoniou, whom he saw on 15 May 2014. Dr Papantoniou considered that the plaintiff had a discoid lateral meniscus, which is a congenital disorder, and represented an acute injury, an opinion Dr Menogue disagreed with (Exhibit A, p. 234) and apparently also not shared by the plaintiff’s treating doctors, as the plaintiff told Dr Menogue that no surgical intervention was recommended at that time. The only other treatment the plaintiff had was a bone scan performed on 29 June 2014 (which did not identify any new pathology) and, as Dr Menogue notes (Exhibit A, p. 235), he had not had any other treatment since (i.e. as at 23 April 2015, when Dr Menogue prepared the MAS report assessing the plaintiff at 9%).

29. I formally note, as to the contents of Dr Menogue’s report, that caution should be used when considering the contents of MAS reports, as the authors are not compellable and the reports only deal with the threshold question of entitlement to damages for non-economic loss: Pham v Shui [2006] NSWCA 373, at [90]; Brown v Lewis [2006] NSWCA 87 at [23]. Nevertheless, the reports are often a helpful factual summary and I have relied upon Dr Menogue’s summary of the plaintiff’s medical history as it is factually accurate.

30. The plaintiff continued to work with Recovre concerning his Return To Work plan. The Recovre report for 5 January 2015 notes:

“Mr Faraj indicated that he was continuing to work in his chicken shop throughout the week for a total of 4 – 6 hours per day to assist with planning, completing ordering and paperwork and at the end of the day to complete financial tasks including counting money etc.”

Changes to the plaintiff’s work in his business after the accident

31. What caused the problem to cease work in Chickenlicious in or about the middle of 2014? The plaintiff described his condition in early 2014 in the following general terms:

Q. 2014. In terms of your body, what difficulty if any were you having, and what parts of your body?

A. At the time it was just doing repetitive stuff. So what happened, every time I was doing anything extreme - extremely repetitive, my shoulder, and especially the pain running down from my shoulder and up down my arm was happening. Other than that, it wasn't really - it wasn't until I started to push further and further to the plan that I started to get a lot more problem, including swelling of the shoulder blade and swelling of the shoulder, and‑‑

Q. And between the period of, say, when you returned in mid‑February until mid to late‑March, during that period of time, is it the case that you sought to increase the amount of work that you're doing during that period of time?

A. Yes, I did.

Q. And that was in keeping with the stage development.

A. Yes.

OBJECTION. LEADING. QUESTION WITHDRAWN

Q. In any event, just between mid‑February, when you returned, and mid to late‑March, what alteration if any was there in the nature of the work that you were doing?

A. I just took on a little bit more duties. So I started to prepare a little bit, a bit of prep, started to do a bit more things hands on - so sweeping, cleaning. Just not cleaning the kitchen cleaning, but just cleaning, sweeping. Coming in the morning, helping out. So I've took on about four to six hours a day - so it normally was about four hours I used to jump in there and just do everything. I mean, take the orders, speak, you know, as, see what's been payable, what's not. And just take a more full‑on approach on to the - to the shop. And I was trying to get - I was, you know, building that up.

Q. During this period of time when you were on the return to work program, what was the situation in relation to employees? Who was employed at the shop at that time?

A. At - at that time, after the incident, we were closed for a few days. So we were looking for staff. We hired a guy called Rahbie Matti, Rahbi - Rahbie Matti. (T 36.6-.42)

32. The plaintiff said that Mr Matti essentially did “what I was doing” (T 37), namely the grilling, the wrapping, and the sandwiches. Everyone else was still employed, so the additional employees were Rahbie Matti and Ahmed Nasser (T 37). As Rahbie Matti was unable to carry out the cooking, the plaintiff had to revert to buying product which was already cooked, which was a disadvantage in terms of price, although at the time there was not what the plaintiff called any “huge difference” (T 37.49).

33. The plaintiff described the impact of his absence on the shop as follows:

Q. And from the time you stopped doing the preparation of the fresh food to be made into the product you were going to use to cook, did you ever go back to being able to get anyone to do that job for you?

A. No. I - I tried. There was many stages in the business where I did bring people in, and they were trying - they were doing it, but they just left. They said it was too much labour for them, so they never stuck around. So we just kept..(not transcribable)..to buy the product.

Q. Now, you've told us about Rahbie joining the firm.

A. Yep.

Q. Was that after the accident?

A. That was literally straight after the accident. So we - after I went to the hospital, we couldn't keep the shop closed. So there was, luckily enough - funny enough, he walked into the shop, right, looking for work, and we gave him a job straight on the spot. He started the next day. (T 38.8-.23)

34. Mr Nasser’s task after he joined as an employee was as follows:

Q. And what work was Mr Nasser employed to perform?

A. So, Rahbie basically said that the work was too much for him, and he wouldn't stay on board if he continued to do that kind of - that scale of work. So he wanted to specialise in just one section of the job, not running, do everything. Ahmed Nasser came in to prep. So Ahmed Nasser used to come in the morning - which he still does, in the morning he..(not transcribable)..he comes in the morning. He does the salads, the prepping, the tabouli, all the food. He's the chef. So he comes and does it all. He then does the front, and then he sticks there, and Ahmed's taken over the grill and Rahbie went to the front to do the sand trapping.

Q. We'll come - that's another person, isn't it?

A. No, no, him. Ahmed, Rahbie. Yeah. So they - it's basically they - well obviously, they - they - they split it up a bit and had..(not transcribable)..yeah.

Q. Insofar as the food preparation I was concerned, and Mr Nasser - what did the food preparation entail?

A. So Ahmed's stuff was just preparing the salads. Not - not - when I say "food prep," I mean torn lettuce, tomato, onion. So the shop goes through a lot of veggies, because everything - so even the felafel that we sell, you give them a large vast of vegetables with it. So everything that's sold is sold with packets of vegetables. So there was a lot of cutting and prepping vegetables.

Q. Before the accident, who did that work?

A. I did. I did..(not transcribable)..yep. (T 38.35-39.9)

35. The plaintiff described the impact of the two workers in terms of replacement work as follows:

Q. As between those two workers, in terms of the replacement work - if we can call it that - that‑‑

A. Yep.

Q. ‑‑they do on your behalf, how many hours per week would that be?

A. Yeah. Although they're doing about 45 to 50 hours, their real replacement - the work they're doing for me is probably about 35 hours.

Q. So, it's about 35 hours is it?

A. That's correct.

Q. Why is that you can't do that work anymore?

A. It's just a repetitive - it's the repetitive nature of the type of work it is. So, the cutting and the prepping - and I - I tried to go back to it in March and April, I actually did try and go back do the majority of prepping. But the very nature causes me a lot of problems in my shoulder.

Q. When you say it caused you a lot of problems with your shoulder, did anything then happen in relation to your shoulder after you went back to the prepping work?

A. Yes. It - I started to - it started to swell up, I started to get a lot of pain. I started to get pain running down my hand, so that's where I had a - I saw Mr Mel Cusi, I think it was 1 April. (T 42.5-.27)

36. Dr Cusi told the plaintiff that he had to “cut back a little” (T 43) in terms of the preparation work for the cooking in the chicken shop.

37. It was at about this time that the plaintiff’s wife ceased to work in the chicken shop. He described the reason for this as follows:

Q. Why is it that she left the business?

A. Okay. It was - she was getting very - the shop is a very narrow long shop, so you'll see in the footage, it's a really long shop. All the labour we brought in were male, so by the time I had the three staff there and she was in between them you tend to bump into each other a lot and she was getting very uncomfortable doing that. So, she didn't want to continue at the shop.

Q. In any event I think that she at some stage embarked upon her own endeavours?

A. Yes, she did.

Q. That was in a business at Westfield Hurstville?

A. That's correct.

Q. Again, was that a Lebanese food preparation?

A. Yes, yes it was. (T 44.10-.25)

38. The plaintiff’s wife continued to operate that shop from early 2015 onwards but was in the process of selling the business at the time of the court proceedings (T 44).

39. The plaintiff considered other forms of training. He obtained qualifications as a real estate agent which he described at T 45 as follows:

Q. I think you got some qualifications as a real estate agent. Is that correct?

A. That's correct.

Q. What was the purpose for that?

A. I need to do - the - I needed to do something, so I looked up what would I be successful doing or what could I actually achieve. And I like sales, so I figured if I can get into real estate, then I can actually have a job and go back to earning money and, at the end of the day, close off the shop and then go back to another job where I've got an income coming in. (T 45.39-.47)

40. The plaintiff described the reason why he had not been a successful real estate agent as follows:

Q. Just can you tell us why it wasn't a success?

A. I think it was because my mindset - thinking that the job - what I thought about the job and what the reality was was two different things. So, when I went in there, I was working with the Aboriginals, so I met a guy called Richard Green who explained to me all these issues with the Aboriginal landlord. He told me it was the issues with the Aboriginal land. So, I found there was this market, and it just looked too good to be true, it was just an incredible market to do projects with. So, what I did is - I liked the idea and the concept, and business-wise I thought it would make money, so then I went down that venture. I got the licence, and I got the insurance, and I set it all up.

But then we found out - not that quick - in a while we found out that it wasn't as old as it told to - or it wasn't what I was lead to believe. The business wasn't the way I was lead to believe it was, so it failed. We - we tried to do a couple of deals, and I went to China. I - I basically sold my boat, got the finances, I even flew over to China. I flew over to China trying to get the deals done, but then, when it came down to the crunch, it turned out we're not even - well, I mean, you can't actually legally do it. (T 46.5-.22)

41. The plaintiff also said he had applied for a number of positions:

Q. ‑‑employment that you sought? What were they?

A. Okay. I applied for a lot of positions on just Seek and - there was a lot of positions. But the ones that I've actually tried to pursue is then - I then in the end tried to pursue real estate, because it was a licence I already had. So I started to ring around a lot of the real estate agents. And they explained to me that the issue was I didn't have the necessary experience to go into the field. So what I did is I continued to work and based on - we established the Advantage Property Experts and that for that. I continued to run the Advantage Property Experts to try to build up a résumé for myself to apply for these jobs. Then I - didn't work out, so then I thought‑‑

Q. When you it didn't work out, why didn't it work out?

A. I didn't - never got a job and never got the necessary experience. Every time I met someone who wanted to let me in, it turned out that there was nothing to really do. So it didn't achieve what I wanted to achieve. So then I've tried going into import and export. I was in a conversation with a friend of mine who is overseas, and he's an import and exporter. And he explained to me how import and export works. So then I figured, "Shit, this is brilliant and very easy. Be a broker between import and export." So I then tried to establish an import-export. Also then turns out to become an importer you need money in the bank to draw an LC. Because you've got to actually have an LC to give a letter of credit.

Q. When you say LC‑‑

A. A letter of credit. So, if - if you're selling something, and I'm the middle man, I need to have the money to buy it off you to sell it to the next person. So, it turns out the industry isn't as simple as it sounded in theory. And then..(not transcribable)..that perspective, I kept - sorry.

Q. Sorry, go on.

A. Yeah, so I - I just kept building myself a résumé, so I kept meeting people and trying to figure out what to do. So any - any opportunity that came up. So once we get the Newcastle Post Office, we met a group in China which was technology based. So then there was an - there was one group where they had a technology. And it turned out it was fake; it wasn't real. But I pursued that as well. But the technology was meant to be a zero emission furnace and - I just tried anything that I found came towards me. I tried - I was trying to get any kind of employment. I didn't care what the employment was.

Q. So, again, in relation to this other venture in China, that came to nothing as well.

A. That's correct. It was the same trip. (T 46.49-47.40)

42. The plaintiff described how the Chickenlicious business was going financially as follows:

Q. Just generally, in terms of the business that you're running at the moment, the Chicken Licious [sic], how's that going financially?

A. Look, recently, especially in the last 12 months, it's been going fairly backwards. So, in the first early stages it was sustaining not a loss or a profit. So, it wasn't making money but the staff was taking the money and we were eating from the shop, so I was getting my food and my - our lunch, our dinner, everything was coming from the food. Petty cash, like, you go take petty cash. If I had to buy something, just take something out of petty cash. But it starts to deteriorate, so the product we purchased started to increase in‑‑ (T 47.42-.50)

43. The plaintiff was asked if he could return to work as a transit officer, and he replied:

Q. As in [sic – should be “it”] currently stands today with the problems you've just got in relation to your should in particular, would you be able to return to work as a transit officer, either a junior or senior transit officer?

A. No.

Q. Have you applied for any other employment recently?

A. Yes. I applied for a trainee train driver.

Q. How long ago did you do that?

A. Just a few days ago. It just came up in my email as an alert, and I applied for it.

Q. Aside from a confirmation, have you received any other word from‑‑

A. No. It's just - I just put an application in hoping to try my luck on the matter.

Q. Insofar as the work of a train driver is concerned, do you know whether or not you'd be able to do that work, or is it something that you'd have a‑‑

A. To be honest with you, I have no idea. I don't know what the train driver job criteria actually entails. I know the transit officer one back to front. I don't know the train driver one. (T 48.48-49.17)

44. The plaintiff described his current ability to work as follows:

Q. Now, as we sit here today, in the last couple of years, has there been any improvement whatsoever in relation to your shoulder?

A. It's moving incorrectly now.

Q. I'm sorry?

A. It moves incorrectly. Like, if I lift up - if you put your hand on my back, you'll feel that my hand doesn't move right anymore. So in terms of movement, I don't know why I - but it just moves wrong now.

Q. In terms of your capacity to use the right arm, has there been any improvement in that in the last two years?

A. No.

Q. In terms of your ability to do the physical work that you described earlier in your evidence at your business, which you did prior to the accident, has there been any improvement in that?

A. No.

Q. Do you continue to pay for the replacement labour to do the work that you used to do?

A. Yes, I do.

Q. And does that maintain itself at the house that you specified earlier in your evidence? 30 to 35 hours per week?

A. It does because I - when I took the approach and I looked at what hours I did; I didn't look at it in essence of the 96 - sorry, a week that I used to do because eventually I would have never done 96 hours. The goal was to build up the business to only do 40 hours to 45 hours. So when I looked at the replacement labour, the replacement labour I'm taking into account; it's just replacing for those hours - not replacing the 96 hours because I never had plans to sit there for 96 hours. I had plans to have labour come in but the times that I would have been there is what I'm discussing in terms of the two workers and the shifts - the - the hours, yes.

Q. And insofar as those workers are concerned, what's the hourly rate that you pay them?

A. So Schuman is probably about $21 and Ahmed's about $20.

Q. So Mr Nasser is‑‑

A. Sorry, Mr Nasser, my apologies. Mr Nasser's on 20 and Mr Islam is on $21.

Q. That's net per hour, is it?

A. That's net per hour.

Q. Right. And those amounts of money are amounts that you've been paying since the time of your accident?

A. That's correct.

Q. Initially when you were treated after the motor vehicle accident, it was in relation to your right shoulder and neck but also there are references to your right knee as well, is that correct?

A. That's correct.

Q. Insofar as your right knee's concerned, what's the situation with that? Has there been improvement in that? What's been the situation?

A. It's a lot more stable. So in terms of the right knee, the real - only thing that happens: if I was to run - lets say I was playing with my kid and I was to go..(not transcribable)..and try to move the other side, it gives way. Other than that, it's pretty stable. It swells up ever now and again, very randomly but it's pretty stable.

Q. So it's the right shoulder and knee?

A. It's the right shoulder, yeah. (T 50.4-51.17)

45. Throughout this period of time, the plaintiff was seeing medical practitioners. Their reports are set out in more detail below.

46. What the above history demonstrates is that the plaintiff returned to his employment in accordance with the Return to Work Agreement he had with his insurers, but he was obliged to replace his labour by employing others. He had up to four employees at one stage. However, the plaintiff did not say that the employment of all of them replaced his labour; each did a portion. The plaintiff made an attempt to increase his work in March and April 2014, but this caused him problems with his shoulder and it was following Dr Cusi’s advice that he stopped doing this. He commenced looking for other employment as a result. He had not returned to any food preparation work since mid-2014 and the other ventures that he had entered into had been unsuccessful. The plaintiff’s case is that replacement hours in connection with the work that he used to perform could approximate between 30 to 35 hours per week (T 50-51). He acknowledged in his examination in chief that he could perform some physical activity but said that others, particularly regarding food preparation, were beyond him.

Cross-examination of the plaintiff – the plaintiff’s prior injury

47. Although the plaintiff painted himself as a person who was fit and able to perform all tasks in the chicken shop prior to his injury, it was put to him that he had still not recovered from injuries he had previously suffered working with Railcorp. He acknowledged that in May 2012 he was limited to part-time sedentary work, and that his ability to lift was that of a person who could occasionally lift but only to a limit of 5 kilograms, and further, that he was limited to 30 minutes’ driving due to his neck problems:

Q. So as at June of 2011, your pain was such that - your condition was such that using your right arm effectively to do anything would cause you significant pain?

A. It was - yes, the pain was caused from the back..(not transcribable)..yes, you're correct.

Q. Don't worry about giving me the diagnosis.

A. Yeah, correct. Yes.

Q. Just tell me about the pain. It was‑‑

A. Yes, it was really‑‑

Q. ‑‑in your shoulders?

A. ‑‑really bad. The pains that used to run around my - on the back to the front, the ribs, used to hospitalise me. So yes, you're correct.

Q. Well, you've been to hospital on three or four occasions for pain relief.

A. Yes, I'm - yes, I have. (T 53.1-.19)

48. The plaintiff agreed with the description of his condition at that time by Dr Kong as follows:

Q. He saw you to prepare a report on your fitness for duty with the RailCorp and he was assessing problems in your shoulders and your neck. This is what he records: that you tended to favour use of your left arm, which was causing you discomfort in the left arm at the time so I take it your right arm was such that you were taking up the slack with your left. Do you remember it being like that?

A. I - I - I would agree. At this certain..(not transcribable)..left hand would start too. Early days, I was favouring the left hand which then ended up using more things on the left, that's correct.

Q. He says at that time, you described the level of pain as being four of ten but if you used your right arm, even in moderate exertional(as said) activities or if you're required to put your right arm through a repetitive range of movements, you developed severe pain which you rated at ten out of ten.

A. That's correct.

Q. So as at midway through 2011, any effective use of your right arm would cause you pain at the top of the scale?

A. That's correct.

Q. And you would have been told one is a very low grade or inconsequential pain; ten is as bad as you can imagine.

A. That's correct.

Q. So as at June of 2011, your pain was such that - your condition was such that using your right arm effectively to do anything would cause you significant pain?

A. It was - yes, the pain was caused from the back..(not transcribable)..yes, you're correct. (T 52.27-53.5)

49. This was prior to the plaintiff opening the chicken shop in about January 2013. In April 2012 the plaintiff consulted Dr Davis, and he agreed that he had a significant problem still with his right shoulder at this time (T 54) as well as with his neck (T 54-55). As set out in more detail below, the Occupational Health Assessment Centre provided a report in May 2012 (Exhibit 1, page 84) noting employment restrictions which bear a considerable similarity to those in the present claim (set out at Exhibit A, page 197).

50. The plaintiff acknowledged he had been medically retired from Railcorp subsequent to this report:

Q. At that time, it was said that your condition was such that you were suited to physical - so far as your physical condition was concerned - you were suited to part‑time work only.

A. That's correct.

Q. And it was not long after that, I take it, that you were medically retired.

A. I assume that was when they were trying to make me medically retired. It was where we were trying to argue against that. And I think those reports came negative, and I think they did end up make - well, they - I don't think, they did make me medically retired, they medically retired me.

Q. Did you ever claim for damages arising out of that injury?

A. Yes, I did.

Q. Was it arising out of the injury to your shoulder?

A. To the thoracic nerve, yes.

Q. Essentially involved those very things we've been talking about.

A. Similar but different, but yes.

Q. Well, the things that I specifically put to you from that time, I think you've accepted they're accurate.

A. Yes, you're correct. At that time - they're a little bit different, but yes, I agree with you.

Q. So when was that claim for damages resolved?

A. Ah, I don't recall. I don't know the exact dates. I don't know if the solicitor's got it, but I don't know the exact dates. There was a - only - I think it was 14,000 or something. But it was then at that point - and then I took a - you know, they made me medically unfit, and I went back to work. That's - I don't recall the exact dates and figures.

Q. So they made you medically unfit.

A. They did.

Q. Around that time.

A. Yes. (T 55.32-56.18)

51. The plaintiff had gone back to work in July 2013 (T 56) when he underwent a medical examination and was reinstated (T 57.6). His injury had reached a stage where he could return to his previous employment (T 58). However, within a short period of time (the plaintiff estimated four to five months) he took a second voluntary redundancy and increased the hours he was working in the chicken shop business he had commenced running in January that year from part-time to full-time.

52. As is set out in more detail below, this was a significant prior injury which remained symptomatic for a period of some years up until a period shortly before the accident. This is relevant as to whether or not it is causally significant in the context of the plaintiff’s present circumstances.

The surveillance evidence of the plaintiff

53. There is extensive surveillance evidence of the plaintiff in the form of reports dated 19 February and 2 April 2014 (see Exhibit 1). This covers part of the time that he was being examined by medical practitioners such as Dr Breit (7 July 2014), Dr Bodel (1 August 2014) and Ms Gosling (11 August 2014). The defendant asks me to compare what the plaintiff can be seen doing in the surveillance video with his presentation to each of these medical practitioners. Much of the footage was shown in the course of the hearing, and the whole of it has been watched for the purpose of this judgment.

54. On being shown extracts from the film, the plaintiff agreed that the footage accurately depicted what he was doing at the time of surveillance of the premises. His explanation was that it was as a result of performing these activities between February and March 2014 (particularly repetitive chopping in relation to food preparation) that the symptoms in his right shoulder became greater, and that this was why his difficulties resulted in his eventually having to cease these activities. In addition, it is submitted (written submissions paragraph 49) that the insurer:

“specifically aimed using the plaintiff’s willingness to undertake a rehabilitation program against him apropos of the totality of the claim and is not in keeping with the spirit to work plan or the intentions of the legislation in seeking to return people to employment as soon as possible.”

55. In other words, his case is that the insurer first forced him to return to the performance of his duties and then filmed him attempting to perform those duties in circumstances where, by inference, this does not represent what he was actually capable of, but what he was attempting to do by reason of the pressure being put on him by the insurance company to do the work in question.

56. One of the difficulties that courts must face when dealing with surveillance video is that, in the main, persons shown on surveillance video do not appear to be doing anything other than going about their lives in an ordinary fashion in circumstances where it is entirely possible that they could be in pain but simply seeking to go about their business.

57. One important factor is the amount of time involved in the surveillance film. In Merhi v Ford Motor Company of Australia Ltd [2014] VSCA 328 Neave JA noted:

[82] As courts have frequently observed, video surveillance showing an injured worker’s activities on a few occasions selected out of a longer period may be of little use in assessing whether an injured worker is exaggerating the effect of an injury. But the limitations of such evidence were taken into account by her Honour who remarked that:

“The film in this case was extensive … The surveillance was far more than a snapshot of the [appellant]’s activities but showed his level of movement and activity on numerous occasions over a six month period.”

58. However, even where an extensive amount of surveillance film is produced, it is possible that the tasks the person being filmed is seen performing may be taken out of context by reason of a misunderstanding of what those tasks are. It was for this reason that I specifically asked the plaintiff to look at several portions again and to tell me his version of what was happening, and in particular to look at the footage which showed him picking up a large number of boxes (T 154-167). The plaintiff told the Court that the boxes were very light in weight and described their contents. He said that none of the weights were above 12 kilograms.

59. However, while I accept the plaintiff’s explanation in this regard, the fundamental problem is that he is seen over quite long periods of time moving freely and without any restriction and performing one physical task after another, including not only carrying boxes but moving tables, sweeping and generally conducting the business affairs of the chicken shop in what appears to be a busy and efficient fashion.

60. While it is true that the activities the plaintiff is shown performing in the surveillance video do not involve obviously strenuous or repetitive movements, particularly in relation to his right arm, they do demonstrate the level of his fitness to perform tasks for which use of his right shoulder would be a pre-requisite.

61. As is noted in Kendirjian v Ayoub [2008] NSWCA 194 at [168], if the subjective evidence of the plaintiff about the extent of his disabilities is rejected, that means that reports which have accepted the plaintiff’s descriptions of his symptoms will accordingly lack factual foundation. That is why the provision of the surveillance film to the medical experts is of vital importance, as it is an opportunity for those medical experts to consider objective evidence that is also before the court for consideration.

62. The footage was seen by Dr Davis and Dr Breit in full. Dr Bodel, who apparently had technology problems, was only able to access the surveillance taken on 11 February and approximately one minute of film taken on 12 February 2014. That is unfortunate, because it is less significant than the lengthy surveillance taken in March 2014. While I appreciate that Dr Bodel has looked at the static photographs in the surveillance report, some parts of his description suggest that he did not have a full appreciation of the nature and extent of the activities the plaintiff was observed to be doing.

63. I will deal with each of these reports in turn.

Dr Davis

64. Dr Davis provided reports dated 11 August 2014, 21 August 2017 and 30 October 2017. In his report of 11 August 2014, Dr Davis states:

At this time he is markedly restricted in the normal functional use of his right upper limb where he had suffered earlier injury, although he informed me that he had regained almost total range of movement and was able to return to all forms of arduous, heavy and forceful work. In fact, he passed his pre-employment medical when he had earlier failed and had resulted in him being medically retired from Railcorp. He will continue to suffer with a variable degree of pain and symptomatology which will be aggravated by a number of activities which should now be avoided as a result of the accident. This would include repetitive or sustained reaching, repetitive or sustained work above mid-chest level, lifting and carrying greater than 7kg, or any forceful pushing or pulling. He should also avoid maintained squatting or repetitive use of stairs.

The accident will impact upon his normal work capacity and ability to run his takeaway chicken shop, where he would be unsuitable to take delivery of heavy goods and move them around the shop, as well as to squat to low levels to undertake work around the premises. Long periods of continuous standing will also result in some aggravation, and he is therefore somewhat disadvantaged in having now to have paid employees to undertake the heavy work which I believe would effect a financial loss.

65. Dr Davis considered that the plaintiff had reached maximal improvement.

66. This report was prepared following a visit approximately five months after the surveillance videotape.

67. Dr Davis’ report of 21 February 2017 contains a series of observations about the plaintiff’s need for domestic assistance which must be viewed with a degree of caution, by reason of the of observations of Basten JA in Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443. Dr Davis repeats the same opinion concerning the difficulties the plaintiff would have in running his takeaway chicken shop which include lifting heavy goods, squatting, long periods of standing and the like. Dr Davis noted he was “of course quite capable of undertaking purely managerial or supervisory duties” (page 5 of the report).

68. Dr Davis’ final report of 30 October 2017 was prepared after he had viewed the surveillance footage, and this gave him the opportunity of reconsidering his earlier views. He states:

Having reviewed the discs I note that there were various times during which Mr Faraj performed lifting as well as reaching, stacking, sweeping and mopping.

His activities whilst performing lifting and carrying essentially did not involve taking weight with his shoulder elevated to greater than 90 degrees, and it should be noted that whilst carrying the oil barrel this was placed on his left shoulder, with some shopping of indeterminable weight being carried in his right hand with the arm dependent.

Overall, I consider that the surveillance videos indicate that he was performing essentially normal activities in his business, albeit that I believe there were a number of activities that he performed which would have been of an aggravating nature.

Nevertheless, it is quite normal for patients to perform aggravating activities out of necessity, whether it is due to lack of assistance or due to lack of finances to have others perform such duties for them.

I believe that this activities would be considered consistent with the return-to-work agreement commencing 17 March 2014.

Dr Breit

69. Dr Breit provided three reports dated 7 July 2014, 24 June 2016 and 7 February 2017. His observations in his report of 7 July 2014, approximately four months after the surveillance footage, were as follows:

I can only indicate that Mr Faraj has recurrent right shoulder pain, the basis of which cannot be determined at present. There is certainly evidence of an old injury and the shoulder is very irritable. I suspect a significant part of his problem relates to poor scapula mechanics and I am unable to determine how much of his current restriction is due to pain and how much of it is pre-existing.

70. He also commented on the plaintiff’s “generalised knee pain” but was unable to say more as the plaintiff did not provide an X-ray.

71. He recommended in relation to the plaintiff’s shoulder that the plaintiff undergo a course of injections in physiotherapy and that his scapula mechanics required further investigation. As to the plaintiff’s work status, he noted:

He claims to have worked extraordinarily long hours, doing most of the activities himself, as the proprietor of a takeaway shop. In a more general sense, this gentleman could work normal hours, where there is no work above chest height, no forceful or repetitive use of either arm and a 7kg lifting limit.

72. Dr Breit’s supplementary report of 24 June 2016 sets out a description of what he saw on each of the DVDs. It is of particular assistance, so I set it out in full:

There are three DVDs, from 11 and 12 February 2014, 26 and 28 March 2014, and 27 and 29 March 2014, totalling some 55 minutes.

When seen on 7 July 2014, there was complaint of pain in the right shoulder with restricted movement, and the right knee would swell and give way and there was discomfort. The shoulder was noted to be quite irritable, with 120°elevation and 90° abduction. There were no significant findings with respect to the knee other than widespread tenderness.

I cannot indicate the subject of the DVDs is Mr Faraj, but will assume so for the purposes of this report.

DVD of 11 and 12 February 2014

This starts off showing someone at the side of a four-wheel drive BMW, and a little while later that same person is in a restaurant/takeaway with an ‘Under New Management’ sign. He is initially doing something in a red plastic bowl and was noted to elevate his arms to 90°. He continued mixing things for a while, and then was seen to open a large glass door using his left hand, and then reaching up onto a counter with both hands to just less than 90°, and this was done with ease. He is then seen back at the counter doing something with his arms elevated, and using the right arm in an even higher position, gesticulating across his body. A short while later he is outside the shop, walking up and down and using a mobile phone with his right hand. He is then seen serving a customer. The last part of the DVD shows this man walking to a Mitsubishi four-wheel drive vehicle.

DVD of 26 and 28 March 2014

This starts off showing the same person exiting a black four-wheel drive vehicle, pushing the door open with his right hand, then closing it with the same hand by pushing at about mid-window height, without any difficulty. He is then doing something at the back of the four-wheel drive, but I cannot see what he is doing, however he is then noted to use his right hand to close the rear gate, which indicates essentially normal elevation. A little while later the vehicle is driven away.

The next part of the DVD shows him carrying some stainless steel racks behind the counter of the restaurant, but with arms below chest height. He is then walking across the road, and then is seen on a number of occasions adjacent to his vehicle.

At one time he is removing a jacket without difficulty. He then reaches behind with the right hand in order to grab the seatbelt of his vehicle, backs the car and is then seen driving away, steering just with his right hand palming the wheel. The vehicle is then followed in traffic until it pulls over to the side of the road. He is then sitting in it for a while before driving off again, and is then seen in a service station filling the vehicle with fuel.

DVD of 27 and 29 March 2014

The surveillance starts off with this gentleman in the restaurant walking around behind the counter without any difficulty, and he then appears to be talking to someone and gesticulating with his arms. He is then seen outside, talking to a woman through the restaurant window and using his right arm to point, with it abduced to 90°, and then again using it to gesticulate, and then get the right hand behind the head to scratch that area, before returning inside. He is then seen doing a little bit of sweeping outside with a broom, bending down and picking up some rubbish with the right hand and putting it into a bin, before returning to the restaurant and leaning with both arms on the counter, which is at mid-chest height. He is also noted to be using a mobile phone, firstly in the left hand and then propped between his right ear and right shoulder while he is doing something else with his hands.

There is more exposure of him walking backwards and forwards behind the counter and then a customer appears, and he is preparing something.

He is then with the right elbow propped on the top of the counter, leaning his head against the right hand as well as scratching his head in that posture.

There was a delivery of some drinks and he is chatting with the people for a moment and then lifts a carton from the stack onto the top of a high counter, using both hands. He later puts another carton up on the counter, and is seen scratching the left side of his head with the right hand in a fully abducted posture. He is also seen scratching the back of his head with the right hand on several occasions. There is subsequently some footage of this man walking outside carrying some shopping in the left hand, and then in the four-wheel drive vehicle again.

73. Dr Breit goes on to proffer the following opinion:

OPINION

Had I been asked to review this DVD surveillance without a history, and had I been asked to comment if I thought there was anything wrong with the person, on the basis of that surveillance I would indicate the negative.

The person in the DVD is behaving normally, displaying no evidence of any difficulties and with an essentially full and free range of movement in the right shoulder and normal gait pattern when seen walking on a number of occasions.

The DVD is not consistent with Mr Faraj’s complaints from July 2014, where he indicated he had to change his technique of dressing, there were problems using the arm overhead or behind the back, and where he displayed a significant amount of restriction, with complaints of a lot of pain.

On that basis, there is nothing to indicate that he has any impairment as a result of the motor vehicle accident.

74. In a further report dated 7 February 2017 Dr Breit notes that he had already reviewed three of the five DVDs and provided further commentary for the surveillance on 26 and 27 March 2014 as follows:

26 March 2014

This video surveillance commences at about 8.32am and shows this gentleman getting into a four-wheel drive BMW. He is then seen at a service station, walking across the street and then in his take-away chicken shop doing a variety of general activities and at one point, taking some paper from the top of the counter, shaking it, noting about 90° abduction. He is then seen again doing a variety of tasks with his arms low and walking around the shop without any difficulty.

At 9.25, he is noted to be using the phone, supported between his right ear and shoulder, while loading a whole roll of kebab into a cooker, before going outside and handing a key to someone.

He is then back in the shop and moves a couple of small tables and is then scratching the top of his head with his right arm, indicating about 100-110° abduction at about 9.35am.

He then puts out some more tables and chairs. He is then doing some sweeping at about 9.43am. This is something that people with shoulder disabilities find very difficult.

He then returns to some general activities around the shop, including serving a customer. He continues working and there is then another person working. There is some footage obscured by rain and he then appears to be seated at the window having an animated discussion with someone.

The surveillance continues in a similar manner until about 10.40am.

27 March 2014

This surveillance starts at about 9.10am and there are a number of boxes of supplies outside the shop. Mr Faraj picks them up and carries them into the shop and he is seen dragging a plastic bag of something along the footpath outside the shop. He then spends some time doing a variety of things including squatting down for a period. There is a female assistant.

At one point, he is seen to carry a tray full of items with his right elbow bend and supporting it on his fingertips. He is then seen taking out tables and chairs as occurred on 26 March.

In summary, as with the previous surveillance, this gentleman behaves normally without any evidence of pain or disability on more than two hours of further surveillance, all undertaken at his take-away shop but noting that none of the work was particularly strenuous.

The surveillance stopped at approximately 10.35am.

75. Dr Breit described the plaintiff’s prognosis as “good” in that:

What other problems may have arisen from the shoulder (if any) relate to events after the surveillance, and that is well after the accident. In my opinion, he is able to resume normal life and workability as a result of the motor vehicle accident.

Dr Bodel

76. Dr Bodel provided a report and impairment assessment dated 1 August 2014 and a further report and assessment dated 15 June 2017. In his first report, he noted that the plaintiff was continuing his involvement with the chicken shop, but that “he has been told he has to decrease his workload”. He noted that the plaintiff told him his previous injury had “seemed to settle over time” but that the scapula was “still ongoing” when tested by Dr Bodel. He considered the plaintiff required domestic assistance, one-third of which was attributable to his previous injury, and noted that he had been “able to continue his involvement in his business, although he has been advised that he should try and reduce the heavy workload” (page 5).

77. The 2017 report notes that Dr Bodel was provided with three CDs of surveillance videos (he was only able to access the images on the first disk). He had, however, been provided with “a lengthy surveillance report which is a log of the clinical findings” which included photographs taken from the surveillance film. He read this report in relation to the material on all three DVDs.

78. In his conclusions on page 6 of his report Dr Bodel notes that “at the time of surveillance [the plaintiff] was capable of work” and that he was “seen to continue to work in the shop” during the period of the surveillance video that Dr Bodel was able to view.

79. The crucial part of Dr Bodel’s report is as follows:

They were unable to access further video because of the next door shop owner who made it impossible for them to do this. I also observe that soon after that he went off work again with a certificate from his doctor because of increasing symptoms. He therefore was capable of physical work at the time of the observations but clinically he had further difficulty since that time and does require domestic assistance, particularly for strenuous tasks or overhead activities. I have had a lengthy discussion with him in regards to the video and I have reviewed the videotape. As I have indicated he was capable of work mainly at waist level and up to shoulder height although the work that he did with his arms at just over shoulder height was only a very light activity. This is not contradictory to his complaints of ongoing pain and stiffness in the region of the right shoulder.

Conclusions concerning the surveillance film

80. The burden of proof in relation to these issues lies squarely on the defendant, and the court must exercise caution when analysing such material: Glen v Sullivan (2015) 71 MVR 417 at [66].

81. The plaintiff asks me to accept Dr Bodel’s observations, notwithstanding the limited amount of film he saw, because he had the benefit of reading the investigator’s running sheets and that in those circumstances “this does not detract from the weight of Dr Bodel’s overall opinion”. Counsel for the plaintiff also notes (written submissions paragraph 55) that Dr Bodel “did have the advantage of conferring with the plaintiff at the time that he observed part of the surveillance footage”, as is noted above.

82. However, the obligation of an expert is to expose his reasoning: Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705. I cannot tell, from the garbled account set out in Dr Bodel’s report, what his opinion actually is, let alone the basis for it.

83. In addition, while Dr Bodel may have had a lengthy discussion with the plaintiff about the contents of the surveillance tape, he does not say what that conversation contained by way of information to assist him. He has also not been able to set out any meaningful comparison between the observed activities on the surveillance film and the plaintiff’s clinical presentation to him in 2004.

84. These deficiencies are significant. Dr Bodel’s opinion cannot, in those circumstances, provide the Court with an informed assessment as to whether the plaintiff’s presentation to him in 2014 was genuine and consistent with what the plaintiff was demonstrated on the surveillance film to be doing, apparently pain-free, a matter of months beforehand.

85. Dr Davis’ report is more detailed, in that he notes that the plaintiff was seen to carry an oil barrel which he did on his left shoulder. However, the plaintiff acknowledged that he could, in fact, pick up and carry a 20 litre drum of oil on his right shoulder (T 99).

86. Dr Davis noted that, out of necessity, persons may perform tasks which are aggravating and cause pain, from which I infer that he considered that when the plaintiff was seen carrying out these tasks, he may well have been in pain. However, the Return To Work agreement had directed that the plaintiff avoid activities of this kind and required him to stop and contact the insurer or the rehabilitation provider if he was having any difficulties, as he himself acknowledged:

Q. It told you what to avoid?

A. Correct.

Q. And it told you to stop and to contact Allianz or Recovre if you were having any difficulty?

A. That's correct. (T 86.15-.20)

87. The plaintiff in fact stated that a number of the activities he was observed carrying out did not cause him any particular aggravation and that he was certain about this because if it was causing him any difficulty, he would have reported it and either not gone into work or taken time off. The plaintiff stated at T 105 that he performed the tasks observed on surveillance and was able to undertake those activities. In those circumstances, the value of Dr Davis’ theory is undermined.

88. By comparison to the reports of Dr Davis and Dr Bodel, Dr Breit has not only expressed an opinion, but has exposed the reasoning and the assumptions of fact he has used by setting out his careful observations of what is seen on the surveillance film. He states that none of the work was “particularly strenuous” but considers it relevant that he was seen over periods of two hours or more performing it. The carefully prepared and considered nature of his analysis of the documentation is such that his observations and opinions must be accepted.

89. In addition to noting the observations of the medical experts, I consider that, even to a layperson, the film clearly demonstrates that the plaintiff is capable of performing a wide range of physical activities. There is no suggestion of any psychiatric or psychological issue or other reason why he could not perform such duties. He clearly could perform meaningful work in the course of his business. In those circumstances it is difficult to understand his evidence that from approximately mid-2014 he has not attended the shop other than to pay the staff, and has been unable to do anything beyond doing computer and supervisory work at home:

Q. But there are plenty of things you could physically do at the shop. Correct?

A. Yes, I can.

Q. That's been the case since - I'll take the date you've provided - mid way through 2014?

A. That's correct.

Q. But you've chosen not to.

HER HONOUR

Q. Do you agree or disagree?

A. Not chosen not to. I disagree the word chosen. But, yes, you're correct.

CATSANOS

Q. You haven't gone in?

A. No. Besides paying the bills, no. You're correct. (T 79.29-.46)

90. The plaintiff also said at T 109:

Q. But from what you've told me, from midway through 2014 you really haven't been back to the shop.

A. That's correct.

Q. And you've continued to work from a distance‑‑

A. Yes.

Q. ‑‑by doing computer and supervisory work from home.

A. Yes. (T 109.41-.49)

91. An explanation proffered in the course of submissions is that the plaintiff’s condition dramatically changed, in a medical sense, shortly after this film was taken, and that the plaintiff’s worsening medical condition after that time needed to be seen as not being caught on film and not being the subject of specific comment to this effect in any of the medical reports. The history the plaintiff gave to medical practitioners and the treatment provided indicates no medical reason for the change in his conduct of the chicken shop business in mid-2014 being due to a significant deterioration in his condition at that time and up until the hearing. In fact, for much of that time, the plaintiff was not consulting medical practitioners at all.

92. Such a submission implicitly acknowledges that the plaintiff was, in fact, physically able to work to the extent demonstrated on the surveillance film, and relies strongly upon findings of credit in relation to the plaintiff’s claims of ongoing disabilities.

93. I am satisfied that the surveillance film demonstrates that in the months following the accident, following a recovery period of about two months, the plaintiff was able to conduct his chicken shop activities with little or no difficulty.

94. Having noted these findings in relation to the surveillance film, I next consider the issue of the plaintiff’s credit, both in relation to the surveillance film and evidence of subsequent changes to his health.

The plaintiff’s credit

95. The plaintiff was asked how he had filled his day over the past four years. He told the Court:

“Q. --what were you doing during your days if you weren't going into the shop? What were you--

A. Feeling sorry for myself.

Q. Right.

A. If you want to know the truth, yes, I was sitting at home. I was trying to do something, yes.

Q. So you would sit at home doing nothing--

A. Yes.” (T 172.30-.39)

96. However, the defendant tendered a bundle of material which demonstrates that the plaintiff has actively pursued other business ventures unrelated to the chicken shop. The job applications which he stated in the course of his evidence in chief as having been made by him over a continuous period demonstrate only job applications made between 6 and 29 January 2016, an application for a position of trainee train driver in June 2016 and a similar application made several days before the commencement of these proceedings.

97. The material in the volume tendered by the defendant demonstrates significant business activity. This includes:

1. The registration of a number of business names, including Advantage Property Experts Syndications Pty Ltd, NCC Clean Energy Pty Ltd, SF International Group Pty Ltd, Buildev Pty Ltd, Strategic Property Group Pty Ltd, BE Pty Ltd and Little Amigos Nomic Avenue Child Care Centre.

2. A real estate venture described in an article in the Newcastle Herald dated 24 September 2016 which involved the plaintiff in trips to China. This article describes “Advantage Property Experts Syndications Pty Ltd, led by 31 year old Rockdale man Hussein Faraj”. The article quotes Mr Faraj as telling the newspaper:

Mr Faraj said on Friday that his company was “amalgamating sites in Kings Cross and Darlinghurst” and had “money” coming from China and the Middle East.

3. However another party to the venture said that “Despite Mr Faraj’s optimism” there were problems with the deal. The plaintiff gave evidence that the deal in fact collapsed (see second report from the Newcastle Herald dated 29 September 2016 which also refers to the plaintiff in similar terms).

4. A business name search for the plaintiff as the owner of the name “Taste of Lebanon Restaurant from 3 December 2014”. There are references to seven other business names, including Chickenlicious.

5. The plaintiff’s curriculum vitae describes him as having the following key skills:

Key Skills

•   Highly skilled and qualified trainer who holds Cert IV in workplace assessment and training

•   Results driven team player who excels at building trusting relationships with customers and colleagues

•   Highly adaptable, mobile, positive

•   Innovative problem-solver who can generate workable solutions and resolve complaints

•   Highly analytical thinking with demonstrated talent for identifying, scrutinising, improving, and streamlining complex work processes

•   Computer-literate performer with extensive software proficiency covering wide variety of applications

•   Loyal and dedicated team player with an excellent work record

6. The plaintiff has twice applied for work as a train driver and his current application is pending. He is likely to be capable of undertaking train driving work given his evidence that driving is no longer an issue for him (T 80).

7. The plaintiff has already completed part of a law degree and has been giving consideration to continuing that course of study.

98. All of the above activities indicate that the plaintiff, an intelligent and resourceful man, has significant future employment activities. What then am I to make of the circumstances in which he has not worked since approximately mid-2014 and that he is unable to return to his chicken cooking duties in Chickenlicious?

99. The plaintiff’s description of his ongoing injury and disabilities needs to be seen in light of the evidence as a whole. Where the plaintiff’s evidence is inconsistent with contemporaneous documentation or surveillance film, issues as to the degree to which the plaintiff’s evidence can be relied upon arise.

100. The relevant test to apply to the credit of a witness in personal injury proceedings where a claim is made that injury and/or disabilities have been feigned is set out in McGlen-McLeod v Galloway [2012] NSWCA 368 at [87]; Tobias JA went on to note the importance of making a specific finding as to lack of credit where an attack on credit is made.

101. The inconsistencies between the plaintiff’s asserted ongoing disabilities and inability to work in the chicken shop since mid-2014 with his other business activities, as well as the evidence of his physical capabilities as seen in the surveillance film, must significantly undermine his credit. The defendant submits, and I accept, that the plaintiff’s busy pursuit of other business ventures, in particular, is an indication that he has not returned to work in the chicken shop as a matter of choice, and not because of ongoing disabilities.

98. This brings me to a consideration of the plaintiff’s claim for past and future economic loss.

Plaintiff’s claim for economic loss

103. The plaintiff principally relies upon three forensic accountant reports prepared by Mr Kian Elsmore dated 25 September 2015, 3 March 2016 and 1 August 2017. As counsel for the plaintiff acknowledges at paragraph 60 of his outline of submissions, the plaintiff conceded from the outset of the hearing that the assumptions made by Mr Elsmore in his reports were flawed in that they sought to characterise claims for past and future economic loss by reference to the totality of employed labour within the business of Chickenlicious.

104. However, Mr Elsmore’s report contained many more flaws than just this one particular example. Although the plaintiff during the course of the hearing assessed the replacement of his labour at the chicken shop as about 35 hours per week (T 42) in place of the up to 90 hours per week estimated by Mr Elsmore, it is clear that much of the factual material given to Mr Elsmore, not only about who was working in the store and at what rate, was simply untrue. In his claim form dated 24 March 2014 the plaintiff said that he was paying $2,400 per week to staff to replace him, half of which ($1,200 per week) was being paid to his wife (who did not give evidence). The plaintiff admitted that this statement as to his wife’s additional earnings was untrue.

“Q. What you put on that claim form is quite untrue, isn't it?

A. To be honest with you, I can't recall why - I know she took up..(not transcribable)..but you're right, you're correct. I don't deny it, hundred per cent correct.

Q. It's quite misleading, isn't it?

A. You're correct, it is.” (T 66.28-.34)

105. Even Mr Elsmore had difficulty with some of the plaintiff’s claims. For example, at page 26 of his report he noted that the plaintiff’s tax returns for 2013 showed an underpayment of income tax and he noted also discrepancies between the business activity statements and gross income amounts (at page 28). At page 29 he observed that he could not identify any decrease in gross income during the period of time subsequent to the accident (Mr Elsmore had been erroneously told that the business had been closed). Mr Elsmore also noted in relation to the cost of additional labour (see page 112) that the cost of that additional labour was lower than the figures given to him by the plaintiff.

106. Some of Mr Elsmore’s conclusions on the facts are at variance with the plaintiff’s evidence. For example, at page 29 of his report he stated that during the financial year ending 30 June 2015, the business continued to experience “a significant level of growth of income”.

107. Mr Elsmore’s erroneous figures were based upon information provided to him by the plaintiff, namely that he had to engage two staff members to work a total of 12 hours per day to replace him. Not only is this now agreed to be untrue, but it is completely implausible that such a simple task as working in a chicken shop is so difficult that two persons were working 12 hours per day in order to replace the plaintiff.

108. Not only are the first and second reports of no evidentiary value because Mr Elsmore has accepted uncritically the plaintiff’s wrong information, but his final report (commencing at page 141) continues these errors. Based upon those instructions, he came to the conclusion that the cost of replacement labour for the 2017 financial year was in excess of $100,000, a figure which would be self-evidently wrong for a business of this nature.

109. It is the overstatement of loss which has caused the plaintiff to resile from Mr Elsmore’s reports, although the plaintiff himself was the source for most, if not all, of the wrong information. Mr Elsmore’s error was to accept uncritically what the plaintiff said rather than to have regard to his obligation to the Court under the Code of Conduct.

110. Mr Elsmore’s observation as to the business’ ability to make money had been proved to be correct by documents which he did not see, namely the plaintiff’s 2016 and 2017 tax returns (Exhibits B and C).

111. There is a forensic accounting report provided by the defendant prepared by Ms Lindsay. Counsel for the defendant notes that at paragraph 36 of her report she has highlighted what he calls “the curious symmetry in the level of wages paid” and (at paragraph 37) that almost all, or more than all of the declared wages are claimed to be replacement wages. If this were a true basis for the claim for replacement labour, it would have been easy to articulate it from the start. Similarly, the increase in profitability, which is not allowed for in Mr Elsmore’s reports in terms of the requirement for more work, was clearly a factor in relation to the increase in labour, as sales appear to have doubled over three years. Ms Lindsay concludes (page 38) that it is unlikely that there are any, or any material, replacement labour costs.

112. Ms Lindsay’s conclusions are:

“Section IX Conclusion

48   In my opinion, for the reasons set out in this report, the claim in the Vincents 2017 Report has not been substantiated by reference to underlying financial records. In my opinion, there is nothing in the financial documents provided to me which would enable me to assess whether the Claimant has incurred labour costs which would not have been incurred, but for the Accident.

49   In my opinion, when compared with the benchmark data provided in the Vincents 2015 Report, it is possible that most or all of the employed labour cost of the Busis would have been incurred regardless of the Accident.

50   In my opinion, a significant amount of additional information is required in order to assess whether the Claimant has suffered an economic loss, and if so, the quantum of any such loss (refer Annexure C hereto).”

113. As the plaintiff’s figure of 35 hours per week was given from the witness box, Ms Lindsay has not been able to opine upon it, and the defendant has been obliged to deal with it “on the run”.

114. The picture she paints is one of a profitable business rapidly increasing in size where part of the explanation for discrepancies is likely to be payments made to workers in cash (see T 190 where the plaintiff acknowledged that some workers were paid in cash).

115. Some of these problems could have been overcome if the plaintiff had called any of his employees, past or present, to give evidence. The plaintiff did not do so and the defendant asks me to draw a Jones v Dunkel inference: Jones v Dunkel (1959) 101 CLR 298.

116. Spouses are frequently called as witnesses in personal injury proceedings, but generally in cases where there is a claim for assistance in the home; see, for example, Commonwealth Bank of Australia v Falzon [1998] VCA 79 at [22] – [23], where a Jones v Dunkel inference was sought. While the plaintiff makes no such claim here, his wife was working alongside him in the chicken business and her reasons for leaving that business and the intermingling of her business affairs with those of the plaintiff are issues upon which her evidence could be expected to cast some light.

117. While I would be cautious drawing such an inference merely from the presence or absence of a shop employee (and I note no shop employees were called), I am prepared to draw such an inference in relation to the failure of the plaintiff to call his wife. Not only was she working in the business at the time of the accident, but it would appear that she is likely to return to the business after having been involved in another takeaway food operation (T 45). The plaintiff’s evidence in relation to his wife’s activities in that business and in the other businesses which she was conducting was not satisfactory. He said that his wife had gone to work for Taste of Lebanon Catering Services (T 113), but as Exhibit 2 demonstrates, this is a business of which he is the proprietor (as well as six other business names): see Exhibit 2, page 74. The plaintiff’s evidence about his lack of involvement in the restaurant business, Taste of Lebanon, at Westfield Shopping Centre was also difficult to follow. It was unclear to me why the plaintiff’s wife’s income was kept separate in the manner he described and why it did not figure in the income of the household. The plaintiff went so far as to say he had no idea how his wife’s business was going, what she was owing or what she was in fact doing when she had been a worker in the shop when half of the replacement wages asserted to have been paid after the accident in fact related to her work.

118. The plaintiff concedes he has the ability to work and is, in fact, able to work as a train driver, a position for which he had made an application for employment shortly before the hearing. Independent of this, he clearly has skills which would enable him to work in a variety of managerial or real estate positions. While he said that lack of experience meant that he could not obtain employment as a real estate agent, the fact that he has this qualification and part of a law degree would make him employable in a number of related areas. Even if I assume that there have been ongoing physical effects from the motor vehicle accident in question (which I am prepared to do in relation to the plaintiff’s shoulder), he still has a very significant capacity for work.

119. The claim for past economic loss depends upon what I make of the expert reports and the evidence of the plaintiff. I do not accept the plaintiff’s explanation for ceasing work at the chicken shop. The degree of time he had spent on other business activities indicates that he is looking to other more interesting areas of employment as opposed to preparing food in a takeaway chicken shop, this being work which would not only be more remunerative, but would enable him to use the skills he has obtained in the courses he has completed and to perform more interesting work for more money.

120. I am satisfied that the plaintiff has not used the earning capacity he has or is likely to have in the future because he has been pursuing speculative business activities which have failed.

121. Finally, the plaintiff’s pre-existing condition would need to be included in relation to any assessment of economic loss. The Court of Appeal stated in Seltsam Pty Ltd v Ghaleb [2005] NSW 208 at [93]-[112]:

“93   As mentioned, ARPD is a restrictive illness. The appellant contended at the trial that the respondent suffered from at least one other restrictive condition that contributed to his lung function, namely obesity. Obesity is unrelated to asbestos exposure.

94   There was a considerable body of evidence to the effect that obesity contributed to the respondent’s breathing difficulties. At trial, the respondent did not contend that obesity was not a contributing factor. The argument advanced on his behalf was that, in accordance with the principles in Watts v Rake and Purkess v Crittenden, the appellant bore the evidentiary onus to establish “with some reasonable particularity” the extent to which the obesity contributed to the respondent’s disability. The respondent submitted that the appellant did not lead any specific evidence to identify the proportion of the respondent’s restrictive lung disorder that should be attributed to the respondent’s obesity; therefore the obesity should be ignored.

95   The trial judge dealt with obesity as follows:

“Taking all the evidence into consideration on the balance of probabilities I determine that the [appellant] has failed to discharge its evidentiary onus to disentangle the obesity [condition] and to prove either that it is making a material contribution to the [respondent’s] restrictive lung condition or with any precision prove the extent of that contribution.”

In determining the respondent’s loss the judge applied what he described as “the usual discount”. The discount he in fact applied was 20%. He made no reduction for the respondent’s obesity.

96   His Honour’s reference to the “evidentiary onus to disentangle the obesity” was based on the remarks of Dixon CJ in Watts v Rake at 160 where the Chief Justice was dealing with the defendant’s contentions, firstly, that the plaintiff was predisposed to the conditions that developed as a consequence of the accident, secondly, that part of the plaintiff’s condition was traceable to causes other than the accident and, thirdly, that had their been no accident the plaintiff would have been incapacitated by his pre-existing condition. Dixon CJ said that, in regard to the second and third contentions, there was a presumptio hominis in the plaintiff’s favour that the defendant should overcome. It was for the defendant to do the disentangling and to exclude the operation of the accident as a contributory cause.

97   Walker J’s reference to the need for the appellant to prove, with “precision”, the extent of the contribution made by obesity to the respondent’s restrictive lung condition appears to have been derived from the following remarks of Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (at 168):

“It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that Watts v Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence ... which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant’s pre-existing affliction or what its future effects, apart from the result of the defendant’s negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant’s negligence was the cause of the appellant’s permanent disability ... “

98   In Purkess v Crittenden the negligence of the defendant caused the plaintiff to suffer injuries resulting in constant severe and disabling pain in the cervical region. The plaintiff had pre-existing degenerative changes in the spine which were most marked in the cervical region. The only evidence of the likely consequences of the pre-existing condition was that the plaintiff “would be in some trouble” when she reached an age within a range of between 50 to 60 years and that she was “of such an age when she would be likely to expect trouble from her degenerative spine.” There was, thus, no evidence before the trial judge that explained in any detail –at all - what impact the pre-existing injury, in any event, would have had on the plaintiff’s cervical spine. The word “trouble”, being the sole description of the consequences of the pre-existing condition, was so vague as to be meaningless.

99   Barwick CJ, Kitto and Taylor JJ pointed out that the evidence did not define what “trouble” might have been expected and “not unreasonably” the trial judge assessed damages on the basis that her then present condition and resulting permanent disability were the result of the accident. Windeyer J (at 171) observed that there was no evidence to sustain the proposition that part of the chronic pain and restricted movement from which the plaintiff now suffered could be attributed to other factors.

100   The word “precision” used by Barwick CJ, Kitto and Taylor JJ must be seen in the context described. In my view, it was intended by that word to contrast the evidence required to discharge the evidentiary onus on a defendant with the hopelessly inadequate evidence actually adduced; not to connote that more was required than “evidence sufficiently precise and definite to displace the inference that the disabling pain from which the plaintiff suffered after the accident was caused by the hurt she then received” (being the words used by Windeyer J at 171).

101 Walker J made no reference to Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 when discussing the onus of proof that a defendant has to discharge in circumstances of the kind the subject of Watts v Rake and Purkess v Crittenden.”

122. The Court went on to make observations about the principles in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 in such circumstances:

“102   In Malec Deane, Gaudron and McHugh JJ said at 643:

“[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.”

Brennan and Dawson JJ stated at 639-640:

"The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the [plaintiff’s] earning capacity which was destroyed in consequence of the [defendant’s] negligence. The fact that the [plaintiff] did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the [plaintiff] had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the [plaintiff] has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past."

Their Honours said at 640:

"In assessing the [plaintiff’s] earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation."

103   Therefore, according to Malec:

(a)   In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b)   The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c)   The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d)   These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the “disentangling” evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.

105   Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of “disentanglement” discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.

106   Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.

107   Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

108 As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff’s condition prior to the injuries sustained by the defendant’s negligence (including the plaintiff’s economic and other prospects in that condition) and the plaintiff’s condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise.

109   Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p511).

110 I have noted that in the present case there was considerable evidence to the effect that obesity contributed to the respondent’s breathing difficulties and was likely to continue to do so and the respondent did not seriously contend to the contrary. There was an obvious and real chance that the obesity would have reduced the appellant’s enjoyment of life or ability to work in any event. That chance had to be assessed and allowed for in the calculation of future economic and non-economic loss. Without such an allowance, the appellant would be held responsible for loss that was not causally related to the ARPD brought about by it (cf Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 498-499.

111 The trial judge made no attempt to assess the chance in question. His failure to do so was a significant error of law. To paraphrase Mason P in Winston v Roach [2003] NSWCA 310 (at 74), nothing in the judgment of the trial judge reveals that his Honour endeavoured to weigh how much of the respondent’s woes would have continued and/or increased had it not been for the appellant’s negligence. There was ample evidence to the effect that they would have done so to a significant degree, even allowing for the evidentiary onus resting on the appellant.

112   In addition, as I have pointed out, his Honour stated that there was an onus on the appellant to prove that obesity made a material contribution to the respondent’s restrictive lung condition. There is nothing in Watts v Rake and Purkess v Crittenden that imposes such an onus on a defendant. This was another significant error of law.”

123. I note the competing views between Dr Bodel and Dr Breit on these issues. The defendant submits that the plaintiff’s prior restrictions are the substantial if not sole reason for any ongoing disabilities, while the plaintiff submits only a modest allowance should be made for the impact of the prior injury upon the plaintiff’s health.

Conclusions concerning past and future economic loss

124. The figure of 30 to 35 hours given by the plaintiff in relation to the replacement labour (“or some lesser sum”, as is put in the plaintiff’s outline of submissions at paragraph 73) is not an appropriate guide to what this cost actually is. No further expert evidence would have been permissible on such topic, and the plaintiff ought not to be allowed to volunteer this lay opinion from the witness box in the manner that he did. Nor is it appropriate to have regard to Mr Elsmore’s deeply flawed forensic accounting reports.

125. However, I do accept that this may be a situation where, given the inadequacy of the evidence, I should take the course adopted by the New South Wales Court of Appeal in State of New South Wales v Moss (2000) 54 NSWLR 536 to do the best that the Court can. Where there is insufficient evidence, it may be appropriate to consider a buffer: Sutherland Shire Council v Major [2015] NSWCA 243.

126. Although the basis of the plaintiff’s claim changed during the hearing, I first set out the schedules of damages prepared by each of the plaintiff and defendant at the commencement of the hearing, which were as follows:

127. The plaintiff’s schedule:

1.	Non-economic loss
Not assessed
2.	Past out-of-pocket expenses
$23,826.57
3.	Future out-of-pocket expenses
The Plaintiff is currently 32 years of age and will require future out-of-pocket expenses as per the medical evidence which may include Right knee arthroscopy and patella chondroplasty / Consultations with his GP / Analgesic medication Analgesic medication / Requirement to attend specialist doctors for the purposes of contemplated surgery and rehabilitation thereafter (cushion):	$10,000.00
4.	Past economic loss
The Plaintiff relies upon the cost of replacement labour as quantified in the report of Vincent’s Chartered Accountants dated 2 March 2016 at 40% x $199,551:
(i) 30/6/17:	$79,204.00
$79,204.00
6.	Future economic loss
As per the report of Vincent’s Chartered Accountants dated 17 March 2017 (40% x $931,147.00)	$372,458.00
TOTAL	$440,488.00

The defendant’s schedule:

Non-economic Loss	NIL
Past economic loss	NIL
Loss of earning capacity	NIL
Past medical and treatment expenses	$23,826.57
Future medical and treatment expenses	NIL
Past Care	NIL
Future Care	NIL
TOTAL	$23,826.57

The quantum of the past economic loss

128. Both at the commencement of these proceedings and in the previously adjourned proceedings, the plaintiff had put figures based on the Vincent Chartered Accountants report. However, in the course of the trial, as noted above the plaintiff’s position changed as to the best method of computation of loss.

129. What is now put, on behalf of the plaintiff, is a figure of $135,915, representing $615 net per week for the plaintiff’s past economic loss at 221 weeks. (By using the same weekly figure for future economic loss, this results in a figure of $452,649.)

130. It can be immediately seen that these are significantly higher than the figures that were set out in the plaintiff’s schedule of damages at the commencement of the hearing. The difference is the basis of average weekly earnings put forward or, alternatively, a reconfiguration of the hours claimed for work in the report prepared by Mr Elsmore. The difficulty is that I have not accepted that case. I consider all of the figures in the report of Mr Elsmore to be unreliable.

131. The plaintiff was off work entirely for the period from the date of the accident until January 14, 2014, and then working part time while the Return To Work period was completed, which appears to have been in about April 2014. The defendant’s estimate of nil for this period is simply unreasonable in circumstances where it is clear from the Return To Work documents, as well as the plaintiff’s evidence, that he was not at work at all for two months at work only in a very limited fashion for at least another two months, during which time other hired employees were performing his duties, followed by a longer period during which he was working limited hours up to mid-2014.

132. Faced with an unrealistic underestimate as well as overestimate, I would be prepared to award a buffer of $30,000 for past economic loss for the period from the date of the accident until the return to work was completed, which coincides with the surveillance period. During that early recovery period, the contributing factor played by his shoulder injury would not have been the focus of his difficulties.

133. I have not accepted the plaintiff’s evidence that he ceased work at Chickenlicious because of his ongoing pain from the accident. I am satisfied that the plaintiff sought to enlarge or change his career and job opportunities for reasons unrelated to his injury. I would, however, take into account the plaintiff’s ongoing work difficulties on an occasional basis from that time forward.

134. However, once the plaintiff recovered from the soft tissue injuries described by Dr Breit, any residual problems he had during this period would have been largely the result of his pre-existing problems.

135. Any allowance for this period up to this hearing would be minimal. In the absence of any clear evidence of the plaintiff being off work because of pain, I propose to award a nominal cushion of a further $10,000.

136. This results in a total of $40,000 for past economic loss.

The quantum of the future economic loss claim

137. As noted above, the plaintiff now claims $452,649.

138. The claim for future economic loss is subject to s.126 Motor Accidents Compensation Act which provides:

“126 FUTURE ECONOMIC LOSS--CLAIMANT'S PROSPECTS AND ADJUSTMENTS

(cf s 70A MAA)

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

139. Future economic loss, under s 126, is the loss of capacity to earn income which “is or may be productive of financial loss”: Graham v Baker (1961) 106 CLR 340 at 347. Income earned prior to the accident may be the best evidential basis to assess the earning capacity of a plaintiff; income earned between the accident and the trial may also be (but often is not) a good indicator of current capacity: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [24]. A plaintiff establishing a diminution in earning capacity is not required to identify with precision the value of the loss, for the reasons set out in Moss, but there must be some evidence of loss sufficient to invoke s 126.

140. As to loss, I note the evidence of the plaintiff about a pay cut that he would take if he were employed as a train driver, where the pay in question is between $67,000 and $72,000 (T 151) which is $40,000 to $45,000 less than he was paid as a senior transit officer, a position which he says he cannot return to.

141. However, the plaintiff’s ability to perform work in the future is significant. I have accepted the defendant’s expert evidence as to the profitability of the chicken shop. The plaintiff is able to earn amounts which would comfortably exceed the cost of the replacement labour he seeks or the readjusted figures he puts forward on the alternative scenarios of a revised Elsmore figure, the differential in wages between a train driver and transit officer, a buffer or cushion or all of the above. He also has the potential to complete his law degree or to continue to seek work as a real estate agent, even though he is currently hampered by lack of experience.

142. The word “cannot” in s 126(1) must be given some work to do. The onus lies upon the plaintiff, and the inadequacies of his expert evidence, my findings on credibility and the impact of the surveillance film are significant blows to his claim. The plaintiff’s future economic loss, within the prism of s.126 Motor Accidents Compensation Act, cannot be made out. Accordingly, I do not propose to make any award for future economic loss.

143. If I have erred in this regard, I would only have awarded a small buffer, having regard to the observations of McColl JA in Sretenovic v Reed [2009] NSWCA 280. McColl JA (at [79]–[81]) considered a buffer appropriate where the precise loss of the plaintiff is difficult to determine and there is a small risk that the plaintiff’s existing employment prospects will be limited, or the plaintiff’s capacity has been clearly reduced, but the degree of inhibition of future earning capacity as a consequence of the injury suffered is uncertain. I would have put that buffer at $50,000.

Past and future out-of-pocket expenses

144. Past out-of-pocket expenses and s.83 payments are agreed at $23,826.57. These were largely made pursuant to s.83 Motor Accidents Compensation Act.

145. The plaintiff’s evidence is that he has not had any active treatment for a period of two years. He told Dr Menogue in April 2015 he was not taking any medication. He told Dr Breit in February 2017 that he had had no treatment for the past six to seven months. He does not appear to have seen Dr Cusi for a number of years. He gave evidence that he has recently taken some medication but the medical basis for this is not the subject of any report (T 49). He said in his evidence that he does some exercises which he was shown by a physiotherapist some time ago (T 180). While there were references in his Schedule of Damages to knee surgery (provided at the commencement of the hearing), that claim has not been pursued in the course of the hearing.

146. The absence of evidence from the plaintiff’s treating doctors of ongoing consultation, and of any explanation for the need for medication, other than very recently, are very persuasive. I am satisfied that this is one of those rare cases where there should be no allowance for ongoing treatment or for medication.

Schedule of damages

Past economic loss (buffer)	$40,000.00
Past out-of-pocket expenses	$23,826.57
Other heads of damage	Nil
TOTAL	$63,826.57

Orders

1. Judgment for the plaintiff for $63,826.57.

2. Defendant pay the plaintiff’s costs, with liberty to apply.

3. Exhibits retained for 28 days.

**********

Amendments

02 December 2021 - Coversheet and paragraph [67] - corrected case citation.

Decision last updated: 02 December 2021