Habib v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 385
•12 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Habib v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 385 |
| Claimant: | Shafik Habib |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Terence O'Riain |
| DATE OF DECISION: | 12 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; damages assessment under section 94; psychological and physical injury alleged from motor accident 15 February 2015; unfit for work due to 2010 lumbar spine injury; claimant’s evidence was unreliable; claimant had given inconsistent histories to assessor and medical specialists; economic loss alleged; claimant’s mental and physical functions impaired due to multiple medical conditions established before 2015 accident; claimant receiving workers compensation at date of accident to 2017; started car wash business after 2015 accident; claimant told occupational therapist in 2014 he delegated all domestic tasks to wife before 2015 accident; supportive documentary evidence outweighed; lack of corroborative lay evidence as to work practices and need for additional domestic assistance; distinction between condition before and after 2015 accident; conflicting medical material; no medical treatment for 2015 accident since 2019; correlation between stopping work and receiving work injury damages in 2017; Held – damages for past treatment assessed under sub-sections 94(3) and 94(4); NRMA’s insured owed a duty of care to the claimant; breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty; 2015 accident caused temporary aggravation of lumbar spine condition and temporary cervical and right shoulder soft tissue injuries have resolved; claimant did not establish past economic loss or that his most likely future was to continue working in car wash business; awarded damages for past medical expenses. |
| determinations made: | CERTIFICATE Issued under s 94 (5) of the Motor Accidents Compensation Act1999 1. Regarding liability for the claim, the insured driver owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage due to that breach of duty. 2. Under sub-sections 94 (3) and 94 (4) of the Motor Accidents Compensation Act1999 (the MAC Act), I specify the amount of damages for this claim as $1,025.80. 3. The claimant’s costs are to be resolved between the parties following ss 149 and 150 of the MAC Act and the Motor Accidents Compensation Regulation 2015. |
STATEMENT OF REASONS
INTRODUCTION
The Personal Injury Commission (Commission) listed this claim to be assessed on
14 March 2023.Malek Danawe of Danawe Lawyers instructed Tim Meakes of counsel, who appeared for
Mr Habib.Larissa Mepstead of Sparke Helmore instructed Ben Wilson of counsel, who appeared for the insurer.
Jurisdiction
The rules of evidence do not apply to this assessment, and I may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
This application to assess damages was commenced in the Dispute Resolution Service (DRS). Clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (PIC Act) abolished the DRS when the Commission was established on 1 March 2021.
I am a Member of the Commission’s Motor Accidents Division and cl 14A (1) of the Personal Injury Commission Regulation 2020 designates this application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
Because of the date of the accident, cl 14D(3)(b) provides that the Motor Accidents Compensation Act 1999 (the MAC Act) and the relevant Guidelines continue to apply.
Documents considered
I have considered the documents in the jointly provided bundle marked AD14 and Mr Habib’s oral evidence.
BACKGROUND
The accident occurred on 13 February 2015 at 2.00pm at Waldron Road and Miller Road, Chester Hill (the 2015 accident). The claimant travelled through the roundabout at the intersection when the insured vehicle, travelling along Waldron Road from his left, failed to give way and collided with the passenger side of his car.
Mr Habib says the collision caused his vehicle to spin and come to a stop.
The police did not attend the accident site. The claimant reported the accident to police on
17 February 2015. The claimant sought medical treatment on 16 February 2015 at 11.00am.A claim was lodged with IAG Ltd t/as NRMA Insurance. The insurer admitted that its insured driver caused the accident in a notice dated 24 June 2015.[1]
[1] Section 81 MAC Act.
The issues for Mr Habib to prove in this assessment are:
(a) the nature and extent of the injuries and resultant disabilities sustained in the accident;
(b) entitlement to past out-of-pocket expenses other than the insurer-paid expenses;
(c) entitlement to damages for future medical treatment;
(d) entitlement to damages for past economic loss;
(e) entitlement to damages for future economic loss;
(f) entitlement to damages for domestic assistance in the past on a commercial basis, and
(g) entitlement to damages for domestic assistance in the future on a commercial basis.
The insurer did not concede entitlement to any of the heads of damage claimed other than past treatment expenses, and that head’s quantum is not agreed upon. The schedule of damages submitted by each party is summarised below:
Damages claim
Mr Habib’s submissions
Insurer’s submission
Past out of pocket expenses
$2,452.15
$1,025.80
Future medical treatment
$38,664
Nil
Past economic loss
$625,000
Nil
Future economic loss
$796,600
Nil
Past domestic assistance gratuitously provided
$126,000
Nil
Future commercially provided domestic assistance
$151,120
Nil
Total
$1,740,436
$1,025.80
The difference between Mr Habib’s claim and the insurer’s figure lies in these issues:
(a) the claimant’s evidence reliability;
(b) the impact of his previous work-related injuries and his condition after the 2015 accident;
(c) the causation of his injuries, and
(d) his current state and ongoing losses.
At the end of the assessment Mr Habib’s counsel proposed that the claimant had instructed that he was reducing his claim for damages as follows:
Damages claim
Mr Habib’s submissions
Past out of pocket expenses
$2,452.15
Future medical treatment
$20,000
Past economic loss
$50,000
Future economic loss
$170,000
Past domestic assistance gratuitously provided
$63,000
Future commercially provided domestic assistance
$33,032
Total
$338,484.15
Agreed facts
The claimant is currently 39 years of age.
The claimant has a life expectancy of 44.6 years on the life tables.
The claimant was 33 years of age when the 2015 accident happened.
At the date of this decision, 426 weeks had passed since the 2015 accident.
Treatment expenses are not agreed upon under s 83 of the MAC Act.
There is no current Medicare Notice of Charge.
The claimant is not entitled to damages for non-economic loss.
The claim form indicates that the claimant lost no income because of the accident.
On 3 February 2010, the claimant sustained a back injury at work (the 2010 accident).
Mr Habib was then a delivery driver for Bankstown Auto Spares, and he injured his lower back lifting a gearbox onto and off a truck.The claimant did not return to work after the 2010 workplace accident and was receiving workers compensation payments when the 2015 motor vehicle accident occurred. These payments continued until he settled his work injury damages claim.
The work injury damages claim settled in 2017.
The insurer challenged aspects of his medical history and earning capacity, which I address below.
EVIDENCE
Mr Habib’s pre-accident medical and psychological history
The insurer instructed Ms Yvonne Varela, an occupational therapist (OT), to assess
Mr Habib at his home on 27 February 2023.[2][2] R9 page 378, AD14.
This report is useful because it provides an up-to-date tabling of all the medical evidence regarding Mr Habib's health and medical treatment after his 2010 accident. It also provides useful information about his social and psychological background.
I can rely on Ms Varela’s summary of Mr Habib’s medical history because he does not dispute the content of these reports. He does not allege they contain falsehoods, misreporting or exaggerations about his health before the 2015 accident. Ms Varela had access to all the available material and visited Mr Habib at home. She spent 1 hour and 45 minutes closely questioning him. Ms Habib’s wife provided assistance to Ms Varela with some information too.
Ms Varela's report summarises information from the following reports:
• Personal Injury Claim form dated 13 March 2015;
• Certificate of Medical Assessor McGrath, dated 14 September 2017;
• Certificate of Medical Assessor Samuel Lim dated 28 September 2017;
• Medical Assessment Services (MAS) Review Panel Certificate dated
18 July 2018;• MAS Review Panel Certificate dated 22 September 2020;
• Mr Christopher Koletti’s report dated 28 January 2020;
• Dr Mathew Giblin’s report dated 15 December 2021;
• Dr Ben Teoh’s report dated 18 April 2022;
• Mr Bryan Pham’s, OT report dated 9 June 2020;
• Dr Harvey-Sutton’s report dated 24 September 2018;
• Associate Professor Shatwell’s report dated 29 July 2022;
• Dr Graham Vickery’s report dated 2 August 2022;
• clinical notes, Primary Healthcare Medical and Dental Centre;
• clinical notes, Isra Medical Centre;
• clinical notes, Dr McKechnie;
• clinical notes, Justice Health and Forensic Mental Health Network;
• clinical notes, Noni Close;
• clinical notes, Riverwood Physiotherapy and Allied Health Centre, and
• clinical notes, Sutherland Hospital.
When asked about the 2010 injury, Mr Habib told Ms Varela he attended physiotherapy and hydrotherapy four times per week during his reported recovery. Mr Habib stated, “It had got better but not gone.” He told her, however, that the nerve pain was not present before the 2015 accident and returned after that accident, radiating down the back of his right leg, stating that this “comes and goes”. Mr Habib told her that Dr McKechnie advised him to “not push (himself)…if you push yourself, it’s not my fault.”
Ms Varela noted the following attendances before the 2015 accident:
· bone scan with SPECT (10 January 2012) documented “Low back pain. Previous L5/S1 disc surgery…normal study. No cause for patient’s low back pain is identified;”
· Dr Lam, pain specialist (6 February 2013) documented, “Despite the successful surgery thus far Mr Habib has developed a chronic persistent pain condition”. He stated, “Described as independent for self-hygiene he described ‘bad days’”;
· Dr Simon McKechnie, neurosurgeon, documented in an early letter to Mr Habib’s general practitioner (GP), “He suffered a work-related injury on 4 February 2010 when he slipped and fell carrying a heavy gearbox…CT scan demonstrates a small L5/S1 disc bulge. I have referred him for an MRI to better assess the cause of his symptoms and to further clarify the nature of the disc protrusion;”
· Dr McKechnie, (7 June 2010) documented, “Surgically, I would offer him a partial L5/S1 laminectomy facetectomy and lateral microdiscectomy and L5 spinal rhyzolysis”;
· Dr McKechnie documented, “Was reviewed again in the neurosurgical rooms on the 9th February 2012. He is still complaining of chronic back pain;”
· Dr McKechnie, documented, “Was reviewed again in the neurosurgical rooms on the 12th June 2014…he has returned today with increasing back pain now radiating through both legs although mainly still on the left side…I have referred him for a follow up MRI of the lumbar spine with gadolinium”;
· Dr McKechnie reported to the GP, “Was reviewed again in the neurosurgical rooms on the 8th January 2015. He is clinically unchanged with back and left leg pain. The proposed surgery has now been approved by his insurance company and he is keen to proceed,” and
· Dr McKechnie documented, “Mr Shafik Habib was reviewed again in the neurosurgical rooms on the 11th February 2015. Clinically he is unchanged with back and leg pain…I have again gone through the logistics of the surgery and answered all his questions in full. I have organised his operation at Sydney Southwest Private Hospital next Wednesday 18 February 2015”. (Note that all of Dr McKechnie’s reports were dated on the date of printing for production)
Mr Habib told Ms Varela that he took some medications and slept when he came home (after the 2015 accident). He told her he had pain in his right shoulder, neck and back.
After the 2015 accident, he consulted his GP, who referred him for X-rays. He could not recall the outcome of these investigations. Although he could not give details, Mr Habib advised that he attended approximately three physiotherapy sessions. He reported ceasing physiotherapy as he could not afford to pay for this treatment.
Mr Habib says he decided against the fusion, which Dr McKechnie offered shortly before the 2015 accident.
Mr Habib undertook hydrotherapy exercises in his home pool. He would see his GP,
Dr Mohan at Bankstown Medical Centre. He says he now sees his GP weekly or fortnightly for medication and had also had some input through Fairfield Physiotherapy. Again, he was unclear as to whether this treatment was beneficial or about its frequency.Mr Habib reported that he had also consulted Mr Koletti, psychologist in Liverpool, and when asked why this referral was made, he reported, “What I was feeling, not right.”
The clinical notes confirm his GP provided Avanza for his depression and also utilised Valium for reported panic attacks. Mr Habib was again vague about the outcomes of psychological interventions. He reported undergoing no active treatment and would rest and use heat to manage his reported pain symptoms, which he says persist almost seven years after the accident.
Dr Rahman, GP, completed a medical certificate dated 11 March 2015 and documented “Cervical whiplash, right shoulder pain, lower back pain aggravation”. He recommended physiotherapy.
Dr Harvey-Sutton, occupational physician (24 September 2018), documented:
“I note from the medical report of Dr McKechnie dated 13 February 2015 and clinical examination 11 February 2015 two days before this accident of 13 February 2015 clinically he is unchanged with back and left leg pain. He was asked to do the paperwork for Sydney Southwest Private Hospital for his pre-operative investigations. He understands he was to have a lumbar spinal fusion. Dr McKechnie also prescribed him Tramal SR 100mg BD… Following his accident of 13 February 2015, he indicated that he continued to work at the carwash doing light duties in a supervisory capacity but indicated that he did not get in and out of the cars. He believes he did not attend as frequently…Based on the nature of the accident, subsequent chronology and current clinical examination, there are no significant disabilities arising from the physical injuries sustained in this Motor Vehicle Accident of 13 February 2015… I consider that there is no loss of work ability arising from this accident of 13 February 2015 over and above his loss of work ability arising from the work related accident of 2010.”
Clinical records, Isra Medical Services identified the following entries:
· 31 December 2017 “long history of back pain”;
· 18 April 2018 “Back pain. Requested for Tramadol. Noticed the last script was given ten days ago. He said he lost the script. Explained we can’t give script;”
· 1 June 2018 “History of chronic back pain. Worsened recently;”
· 27 October 2018 “Neck pain with radiculopathy, back pain”;
· 15 February 2019 “Patient is complaining of back pain with stiffness and limited L spine movements. Patient has reported referred pain to lower limbs with numbness;”
· 9 June 2019 “Back pain, neck pain”, and
· 29 June 2019 “Elbow pain, swelling…olecranon bursitis”.
Dr Giblin, orthopaedic surgeon (15 December 2021) documented cervical spine and right shoulder symptoms and noted, “He is still having problems with his personal care such as washing and dressing. He has difficulty sleeping and difficulty with his sex life.”
Associate Professor Shatwell, orthopaedic surgeon (29 July 2022) documented,
“He eventually underwent a microdiscectomy at L5/S1 on 25 August 2010 to release pressure on the left L5 nerve root related to a disc bulge or prolapse at the L5/S1 level. He told me this surgery did improve his left leg pain satisfactorily initially, but symptoms redeveloped over several months. Mr Habib required strong analgesics in the form of Endone, Lyrica and Temaz at the time of the accident on 13 February 2015 and had been booked for a fusion at L5 and S1 by Dr McKechnie on 18 February 2015. Following the accident this surgery did not eventuate.”
Associate Professor Shatwell opined:
“The accident described would have resulted in minor soft tissue injuries. The description of events following the accident does not suggest that there are any severe soft tissue injuries to the neck or back…It is likely that Mr Habib’s prior lumbosacral injury and its effects continued as they were present prior to the accident in question and in my opinion have not been permanently aggravated by it…In my opinion there is no sign of any musculoskeletal derangement caused by the accident in question that would limit Mr Habib in managing his pre-injury work. There is no objective evidence of injury on examination today.”
Relevantly to his psychological background in a MAS Review Panel Certificate, Professor Dennerstein (18 July 2018) reviewed Mr Habib for psychiatric impairment and noted,
“He developed childhood anxiety and depression and conduct disorder. He had marked learning difficulties and is illiterate. By adulthood, his diagnoses were: antisocial personality disorder; generalised anxiety disorder, and persistent depressive disorder. He experienced exacerbation of the anxiety and depression when he had a work-related accident and back injury in 2010… The Panel concluded that his current mental state is unstable. He was tearful, describing to the Panel that he needed help and that he has been unable to talk to anyone about this.”
Mr Koletti, psychologist (28 January 2020)[3] documented,
“He is the second of four siblings. His mother has been disabled since he was six years old after surgery left her brain damaged. His father remarried when he was nine years old, but he did not get along with his new stepmother.”
[3] R14 page 436.
Mr Koletti first reviewed Mr Habib following the previous accident in June 2010. His report says Mr Habib had a major depressive disorder and generalised anxiety disorder with treatment between June 2010 and November 2012. Mr Koletti stated,
“At the conclusion of these twenty sessions I considered Shafik to be mentally well. His depression had lifted. He was exhibiting more stable mood and anxiety was being effectively managed. Furthermore he reported that his relationship with his wife was more stable. They were communicating well.”
Mr Koletti reported,
“Since the time of this accident his mental health had progressively worsened and the new perspective on life he had managed to work on since he was in jail was slowly eroding due to the physical pain and endurance limitations he was suffering as a result of the injuries he incurred in the Motor Vehicle Accident”… “Shafik’s mental disorders are severe and I would recommend that ideally Shafik should be accessing weekly psychological consultation for at least six months followed by fortnightly consultations for a further six months then followed by monthly consultations for a further twelve months.”
Dr Samuels, Medical Assessor on behalf of the review panel (22 September 2020) documented a review of Mr Habib’s psychiatric condition and opined, “Nil diagnosed psychiatric disorder related to the motor accident”. He stated,
“In terms of social functioning before the accident Mr Habib told the panel that he lived with Joumana and their three sons in a rented house. He had a driver’s licence and drove a Ute. He worked in his own carwash business and his wife did domestic duties. He had a Cruiser and was working on this and sometimes took this twenty eight foot motorboat out. They got together on weekends with friends. He went swimming five days per week and he had drag racer…Mr Habib had a Workers Compensation claim for a back injury which settled in 2014. He was in jail in Silverwater Prison for twelve months for assault Police because of a domestic episode…The Panel was of the view that the accident was the cause of an exacerbation of generalised anxiety disorder, exacerbation of persistent depressive disorder and development of a major depressive disorder and exacerbation of a substance use disorder… In terms of the DSM-5 diagnosis the Panel formed the view that Mr Habib has features of an antisocial personality disorder and problems with persistent depression and substance misuse involving cocaine, opioids and alcohol as well as marijuana that preceded the subject accident. The Panel formed the view that the subject accident may have briefly exacerbated Mr Habib’s mood symptoms, but there is no clear evidence that he has developed a major depression or Post Traumatic Stress Disorder or a significant anxiety disorder as a consequence of the subject accident. His pain problems are longstanding and relate to a workplace injury in 2010 although he does say that the subject accident worsened his back pain. The Panel did not find evidence that the subject accident has led to the development of a permanent psychiatric disorder and would see Mr Habib’s current anger, mood and anxiety problems as being related to his underlying personality structure and substance misuse issues as well as previous problems of chronic pain.”
Dr Vickery, psychiatrist (2 August 2022), documented,
“Mr Habib was not employed at the time of the accident however he subsequently purchased a carwash business a short while later, however, ‘I couldn’t physically do the work and I shut it down in 2018 when I was a really down mood and just gave up’…There was no apparent incapacitating psychiatric impairment noted in the clinical examination. The symptoms/disabilities were pre-existing; however this was not disclosed by Mr Habib...The diagnosis is pre-existing persistent depressive disorder. The substance abuse is in remission. There were no apparent symptoms of generalised anxiety and he would not fulfil the DSM-5 criteria for this condition.”
Claimant’s evidence
Mr Habib provided an unsigned statement dated 13 February 2018.[4] Mr Wilson referred to this statement in his questioning with Mr Habib at the assessment conference.
[4] A23.
The claimant adopted the statement’s content at the beginning of the questioning without reservation. He said it accurately recorded what had happened to him when the statement was dated.
He did not appear to have read it because he conceded during questioning that he did not understand what was in the statement when his solicitor presented it. I summarise that statement because it includes some uncontested material, and the insurer’s counsel questioned him extensively.
On or about 1999, he dropped out of year 12 at Sir Joseph Banks High School.
On or about 2000 - 2004, he was a cleaner in his father’s cleaning business, Ausing Pty Ltd, where he carried out general cleaning duties, carrying heavy objects, working with heavy cleaning equipment, standing for extended periods, and constantly bending and twisting.
From 2004 to 2010, he cared for his invalid mother and did her domestic and daily tasks, as necessary. He received a carer's payment from Centrelink throughout this period. He received government funded respite care.
In 2010 he commenced employment as a car wrecker with Bankstown City Spares. He dismantled vehicles using heavy tools and machinery, carried heavy parts, cleaned and sorted car parts.
In 2010, he slipped at work and injured his back. The workers compensation insurer paid him from 2010 to 2014. He says he had a laminectomy in 2012.
His statement says that in 2014, he started his own business, Unique Carwash, in Bankstown and was self-employed at the time of the statement. He says that as of 2018, his duties and hours of employment have drastically changed.
Before the subject accident, he said he was “actively” involved in the business. His duties included:
(a) managerial duties;
(b) customer services;
(c) cleaning the interior and exterior of vehicles;
(d) worked with heavy cleaning appliances, and
(e) constant bending and twisting throughout the cleaning of the cars.
His 2018 statement said that since the 2015 accident, he had to employ an extra person to carry out his previous duties as his employment hours have now been reduced to approximately three hours per day, four days per week.
He worked mainly at the cash register and supervised employees.
Due to anxiety, he was reluctant to go to work as the anxiety was too much for him to handle.
Being around people overwhelmed him then, and his family had to prompt him to go to work.
During the assessment, via his counsel’s questioning, he told me he was about to start his business when the 2015 accident happened. He bought it with a loan from his father and paid the balance with part of his work injury damages award.
He also told me he had to close the business because his physical and psychological injuries from the 2015 accident made it impossible for him to continue.
During the insurer's counsel's questioning, Mr Habib conceded that the personal injury claim form dated 13 March 2015,[5] which he sent to the insurer, said he was not working at the time of the accident. The claim form says he did not have any prospects of working then.
[5] A1 page 36 AD14.
He also conceded that he was not working because he was still on workers compensation benefits from his work accident and those benefits continued until 2017, when he settled his work injury damages claim.
He conceded that he needed help understanding what was written in his statement. He said he did not remember clearly about when he started the business and the type of work he was doing.
His counsel asked him more questions about the date he closed his business, and he could not remember that date. He also could not remember how long he operated the business.
He lives with his second wife, two children, and his mother in Cabramatta. Their house has:
(i) five bedrooms;
(i) two bathrooms;
(i) kitchen;
(i) laundry;
(i) dining room;
(i) backyard (grass), and
(i) lounge room.
About three days after the 2015 accident, his GP, Dr Bassel Rahman, at Bankstown Medical Centre, examined him due to neck pain. His neck was very stiff to the point that he could not turn it.
In addition to consulting Dr Bassel Rahman, because of the 2015 accident, he underwent the following treatment:
(a) physiotherapy at Riverwood Physiotherapy and Allied Health Services;
(b) Dr Ahmed GP saw him at Rickard Road Medical Centre;
(c) Dr Vadiraja Puranik GP saw him in Panania, who has now retired;
(d) radiological investigations, and
(e) pain medication - Tramadol, Endone, Lyrica, Panadol and Nurofen.
He continues to suffer pain from the motor accident injuries, which were:
(a) neck;
(b) back;
(c) right shoulder, and
(d) shock.
Mr Habib told his counsel that he was still taking medication for the 2015 accident injuries.
During the insurer’s questioning, he admitted he was still taking large Endone doses before the 2015 accident to address the pain from his 2010 spinal injuries.
He also admitted, when he was questioned about what was written in his clinical notes, that before the 2015 accident he was already taking an antidepressant medication Avanza. He left Avanza out of his statement about his health before the 2015 accident.
He also left out of his statement that Dr Simon McKechnie had booked spinal fusion for his 2010 accident-related condition to happen only five days after the 2015 accident.
Mr Habib said throughout questioning during the assessment—when it was apparent he had given an answer inconsistent with his statement or medical evidence produced before the 2015 accident, or that he was unable to remember events or when they happened— that he was confused by the amount of medication he was taking.
The insurer's questioning referred to what he had told healthcare providers and medicolegal experts about the effect of his 2010 accident.
His statement says that when the motor accident happened, he was already receiving assistance with some of his domestic chores; however, he could generally undertake most of the tasks independently.
Because of the subject accident, he says his need for domestic assistance increased drastically, in particular for the following tasks:
(a) general cleaning - vacuuming and tidying up around the house;
(b) clothes care - washing, drying, folding, and putting away clothes;
(c) heavy shopping;
(d) yard maintenance;
(e) car maintenance, and
(f) long-distance driving.
Mr Habib says his sister, Marwah Habib, visited him approximately three days per week to help with the cleaning, washing, shopping, and driving duties. He said she helped him as soon as the accident happened but it was unclear if the help was continuing. He says he also paid someone to maintain the yard and take his car to a mechanic for maintenance because of the 2015 accident. He did not have payment or attendance records.
He says his sister helped him for approximately six hours per week due to the 2015 accident.
During questioning, Mr Habib confirmed he was already seeing doctors and OTs to evaluate how the 2010 accident impacted his life, ability to work and perform household tasks.
At this point, the insurer’s counsel asked Mr Habib: “And when you went to those types of things, did you know there was an obligation, to tell the truth?” Mr Habib replied, “Yeah, I always tell the truth.”
The insurer then asked, “And you tried to give – be as accurate as possible, as you could?” Mr Habib answered, “I – I tried to.”
The insurer pointed Mr Habib to a functional capacity evaluation report for Nexus Solutions dated 22 January 2014.[6]
[6] Page 216 AD14.
That report showed Mr Habib had said in 2014 that his girlfriend was already responsible for all housework, shopping and cleaning.
Before the 2015 accident, he said he would socialise and enjoyed spending time with friends and family. He enjoyed an active lifestyle, including football, jet-skiing and drag racing. Before the 2015 accident, he says he also enjoyed working on, maintaining, and racing cars.
His 2018 statement says he is distressed because the 2015 accident made him unable to do these hobbies any more.
However, in 2014, he told Nexus Solutions that the 2010 accident had already forced him to give up these hobbies.
Mr Habib’s statement says the 2015 accident impacted his relationships, forcing him to divorce his first wife. However, he also told Nexus Solutions; he already had relationship problems and conflicts with his first wife before the 2015 accident. It was apparent that the wife in the 2014 report was his second wife.
He said in his statement that the relationship and domestic violence issues were because he was frustrated and angry that he was unable to recover to the state of health he enjoyed before the 2015 accident. “Back then,” he took his frustrations out on family and friends. The statement did not mention that he had already been jailed in 2014 for domestic violence offending.
The 2015 accident makes him restless at night due to pain. He has difficulties sleeping and experiences nightmares. He has a bleak outlook on life.
Marwah Habib’s statement, unsigned and undated[7]
[7] A25.
Marwah Habib is Shafik's sister. This statement was unsigned and undated, and Ms Habib was not present to be questioned, it did not assist me in assessing whether this alleged assistance had only been provided in the past for a fixed period or if it was continuing. It was not logical and probative[8] given the history Mr Habib gave to Nexus Solutions, and I did not use it to assess the damages.
The nature and extent of the injuries and resultant disabilities sustained in the accident
[8] see Rule 73(a) Personal Injury Commission Rules
Claimant’s evidence
Dr Matthew Giblin noted in this report dated 4 August 2016[9] that before the 2015 accident Mr Habib already had restrictions and needed assistance. Still, since the 2015 accident, he had reduced his going out, and had neck pain and bilateral shoulder pain.
[9] R10 page 402 AD14.
In this report and Dr Giblin’s later report (dated 15 December 2021),[10] the specialist supports a nexus between the 2015 accident and the neck, thoracic and right shoulder pain. He also supports ongoing treatment for those body parts, including medication and physiotherapy.
[10] R11 page 412 AD14.
Dr Giblin noted a Nguyen[11] effect in that his neck problems meant he had referred problems in his shoulders and arms. Mr Habib demonstrated he had problems with his left arm when he demonstrated to Nexus Solutions in 2014 that he had impaired grip strength.
[11] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
Dr Giblin’s later report noted that the left shoulder had resolved.
The 2014 Nexus Solutions showed Mr Habib demonstrated he was then very fearful and reluctant to carry out manual handling tasks.
Notably, although Mr Habib has continued to attend his GP, he has not obtained any treatment for the conditions he says the 2015 accident caused, including pain medication.
Dr Ben Teoh examined Mr Habib, and produced a report dated 18 April 2022.[12]
[12] R12 page 419 AD14.
Mr Habib told Dr Teoh that he had a “beautiful life” before the 2015 accident.
Dr Teoh agreed the 2015 accident caused a major depressive disorder which was still impacting Mr Habib. He supported additional psychological treatment being fortnightly or monthly sessions over three months. Dr Teoh does not support the need for domestic assistance.
Fitcare assessed Mr Habib’s domestic assistance requirements to produce a report dated
9 June 2022.[13] Mr Habib told the OT that before the 2015 accident he was independent in all aspects of his daily living activities.[13] R13 page 429 AD14.
The OT wrote in the report that he assumed Mr Habib was being truthful in his account of provided care. To me that comment reads as if the OT was depending on Mr Habib’s instructions to form the basis of the report’s recommendations.
Mr Habib told the OT that he could not do any aspect of housework, shopping and cleaning without restriction due to the 2015 accident. He said he relied on his family to assist him and he was paying for gardener and handymen to maintain the home and garden.
Mr Habib has not provided any records which support him paying for commercial services.
Fitcare recommended Mr Habib required 10 hours per week domestic assistance at $50 per hour plus gardening and maintenance at $100 per month.
Mr Habib’s treating psychologist Christopher Koletti’s report dated 28 January 2020 said
Mr Habib saw Mr Koletti just before the 2015 accident when he had been released from jail. This was for a breach of an AVO on behalf of his then ex first wife.Mr Koletti saw him again in 2019 for five sessions. Mr Habib sought help because the 2015 accident caused pain and decreased endurance that eroded the gains he had made from his 2010 injuries.
He was using drugs and alcohol to deal with the 2015 accident. He told Mr Koletti he attempted suicide in 2018 because of his despair related to the 2015 accident. His self-care capacity was drastically reduced. As well as the reawakened depression, which had been present before the 2015 accident Mr Koletti opined the 2015 accident caused post-traumatic stress disorder.
Mr Koletti did not appear to have access to Mr Habib’s Justice Health file[14] which referred to alcohol self-medication, drug use, self-harm and a suicide attempt before he was arrested in early 2014.
[14] R18 page 505.
Mr Koletti assessed the accident caused generalised anxiety disorder and substance use disorder, arising from Mr Habib's self-medication.
Mr Koletti reported Mr Habib needed additional treatment from a psychologist and psychiatrist for a total of approximately $21,000.
He also supported providing Mr Habib undergoing vocational rehabilitation with literacy and numeracy programs for at least $8,000.
Mr Habib’s treating neurosurgeon, Dr Simon McKechnie provided clinical notes and correspondence spanning 2010 until early 2015. Dr McKechnie performed a laminectomy and microdiscectomy in 2010 to address Mr Habib’s lumbar spine condition.
In correspondence generated in early 2015 Dr McKechnie expresses his opinion that
Mr Habib would remain unfit for employment unless he had further surgery under
Dr McKechnie’s hand. The workers compensation insurer approved that surgery. It was scheduled to happen on 18 February 2015.
MAS assessments
On 14 September 2017 Medical Assessor David McGrath examined Mr Habib and produced a certificate. The dispute filed with the MAS, which preceded the Commission, referred Mr Habib’s 2015 accident related cervical spine soft tissue injury and right shoulder injury for assessment.
Mr Habib told Dr McGrath that before the 2015 accident he used to work in the car wash from 8am- 8pm (noting the forensic accountant’s report says the business was set up after the 2015 accident) but his medical problems had reduced that to three hours per day.
I noted that despite how serious the 2010 accident lumbar spine injury had been that Dr McGrath’s examination elicited no radiculopathy when that body part was tested. There was only restriction at the end of his range of motion.
Mr Habib had some restriction in his cervical spine but no muscle weakness satisfying a diagnostic related estimate (DRE) II.
The findings on his psychological condition was summarised above.
Past out of pocket expenses
I rely solely on the parties’ submissions. The current Medicare deemed notice of charge is not part of the bundle AD14.
Future medical treatment
Treatments claimed concerning relevant medical evidence
Mr Habib’s GP’s clinical notes did not display any prescriptions have been issued or treatment arranged in the last five years for Mr Habib’s neck and shoulder conditions, which he claims are related to the 2015 accident.
I note Mr Koletti’s proposals for future treatment and rehabilitation in his report dated
28 January 2020, as well as Dr Mathew Giblin’s recommendations.
Past economic loss
The claimant relies on an accountant’s report from Ismail Mustapha of IH Accountants dated 10 February 2022.[15] It reports projections about Mr Habib’s prospective earnings with a brief chronology. This was based purely on some BAS records of the last two quarters of 2015 and all of 2016 and Mr Habib’s instructions. There was no other documentation to corroborate the timeline Mr Habib states above.
[15] R22 page 952 AD14.
Mr Habib’s accountant set the business up about five weeks after the 2015 accident. Although Mr Habib’s accountant had not set up the car wash business by 15 February 2015
Mr Mustapha still records Mr Habib had returned to work and was earning in early 2015.Mr Mustapha reports that by the time I would assess these damages, Mr Habib would have had a business that was turning over at least $350,000 a year and as much as $500,000 a year. He bases this on work for other clients in the car wash industry. It's not an assertion based on objective evidence or addressing Mr Habib's subjective situation.
There was no corroborating evidence in statements from Mr Habib’s father, who Mr Habib says loaned him the money to buy the business, and any other family members, such as his brothers, who may or may not have had shares in the business. There were no records that confirmed he had to hire help to replace his labour. The claimant could not clarify whether he sold the business, closed it, stopped working or whether someone else is operating it.
Despite the rules of evidence not applying in the Commission, I cannot use the contents of this report because to establish what his loss is or could be. it is not logical and probative in resolving the facts in issue about quantifying economic loss because of the 2015 accident due to the contrary assertions about when the business began and Mr Habib’s claim form saying he had no prospects of work when the accident happened. It is speculative about the future, rather than grounded in documented data.
The only point it establishes is that the accountant saw documentation, which states the business was set up after the 2015 accident.
Future economic loss
Originally, the claim for future loss was based on lost opportunity proposed as a buffer of $350,000. Mr Habib relied on Ismail Mustapha’s report because he predicted the business turnover would grow.
Past and future domestic assistance
This is summarised above in Mr Habib’s statement, the insurer’s questions and OT reports.
Insurer’s evidence
The insurer's factual investigation report (dated 6 April 2017 at page 989 and marked R24) refers to a male believed to be Mr Habib working in a business called Unique Car Wash in Bankstown. During three days of observations the investigator filmed Mr Habib washing cars and bending at the waist while he was cleaning the cars.
There were no follow up investigations in the last six years to confirm whether the claimant’s behaviour was consistent.
The insurer’s medical reports are summarised above.
SUBMISSIONS
Claimant’s submissions
The nature and extent of the injuries and resultant disabilities sustained in the accident
The claimant submitted I could comfortably find the 2015 motor vehicle accident caused permanent injuries to his neck and right shoulder, in accordance with Medical Assessor McGrath and Dr Giblin. Those permanent problems mean Mr Habib has been disadvantaged on the open labour market, and specifically in a career that he’s chosen or an occupation that he’s chosen before the 2015 accident.
His most likely circumstances would be that he would have kept operating the car wash if not for the 2015 accident.
There is a specific inability to carry out these most likely circumstances, Dr McGrath’s report supports that.
In his evidence, he had people looking at helping him in the business, and that’s shown on the film. The video surveillance assists the claimant to a significant degree.
It can prove and satisfy me that he was exercising an earning capacity after the 2015 accident despite his laminectomy from his work injury. This man has attempted to exercise what was left of his earning capacity for a period until he closed or sold the business.
He cannot remember when he sold the business because he doesn’t remember much at all. He proposes I should accept that he incurred expenses for domestic assistance such as mowing his lawn, in spite of a lack of records, because he said it in his statement.
Past out of pocket expenses
There is no schedule of out of pocket expenses, only a global claim.
Future medical treatment
Mr Koletti quantifies how much treatment and support Mr Habib needs for his ongoing psychological treatment and rehabilitation.
Future treatment expenses are based on Mr Koletti's and other medicolegal recommendations at $40 per week for the balance of his life.
Past economic loss
Mr Habib claims he was self-employed in the car wash as of the date of accident. He says he was working on unrestricted duties and hours and earning a net weekly wage of $540. He says he was unable to return to work for one month and submitted as of February 2018 he had lost $2,160.
In more recent submissions dated 9 March 2023 he claims he has lost a minimum of $1,500 net weekly for all relevant periods since the accident, which is quantified at $625,000.
Mr Habib relies on Dr Mathew Giblin's, Dr Harvey Sutton's and the MAS reports to support this loss of earning capacity claim. In particular, he claims his neck and right shoulder injury from the 2015 accident are the cause of this loss.
Future economic loss
In the 2018 submissions Mr Habib claims his future loss was $200 net per week until age 67.
In the 2023 submissions, Mr Habib claimed $1,000 per week until aged 67. Alternatively he sought a buffer of $750,000.
Past domestic assistance
Mr Habib claims his sister provided six hours domestic assistance each week from the date of accident.
By March 2023, he claimed 10 hours per week at $30 per hour. He relies on the Fitcare report dated 9 June 2022.
I note that report relied on Mr Habib's instructions that he was independent in all aspects of domestic assistance before the 2015 accident.
Future domestic assistance
In terms of future care, he originally claimed three hours per week, which increased in
March 2022 to four hours per week at $30 per hour for the rest of his life.
Insurer’s submissions
Reliability of Mr Habib’s evidence
The insurer submits family members could have given evidence and provided statements to assist me to understand what is going on, rather than just Mr Habib who is an unreliable witness who may or may not be correct.
His loss of work capacity and domestic assistance could have been corroborated. Examining the records for corroborative evidence there is clear evidence in relation to the 2010 workers compensation claim and the back injury. An assessor could not accept Mr Habib gave up boat racing and his other activities because of the 2015 accident because that happened before the 2015 accident.
The insurer submitted I could draw inferences that work against the claimant. I can infer that Mr Habib already had a very severe back injury that required major medication and he was due to undergo surgery. He was in a serious medical state before the 2015 accident, and it interfered with social activities, domestic activities, economic activities, and justified a $500,000 settlement.
The timing of his closing the car wash business coincides with his work injury damages settlement.
The nature and extent of the injuries and resultant disabilities sustained in the accident
The insurer submits that any symptoms in relation to minor soft tissue injuries to the cervical spine or right shoulder would have now resolved. Any ongoing physical complaints are related solely to his pre-existing disabilities.
Psychologically, there have been a number of different opinions on the claimant’s diagnoses. However, the insurer submits that it was not until the second Review Panel assessment on
7 September 2020, that all of the claimant’s pre and post-accident records were available in order for the Review Panel doctors to make a comprehensive assessment of the claimant’s psychiatric condition.Once the Review Panel had this information they came to the conclusion that the claimant’s antisocial personality disorder, problems with persistent depression and substance misuse (involving cocaine, opioids and alcohol as well as marijuana) all preceded the 2015 accident. While the 2015 accident may have briefly exacerbated the claimant’s mood symptoms there is no clear evidence that he has developed a major depression or post-traumatic stress disorder or a significant anxiety disorder as a consequence of the 2015 accident. Therefore there was no psychiatric disorder related to the motor accident. This is entirely consistent with Dr Vickery’s opinion.
Past out of pocket expenses
A deemed Medicare notice of charge is in the sum of $145.80.
Section 83 expenses amount to $880 not including a non-attendance fee.
The insurer submits the amount of $1,025.80.
Future medical treatment
Dr Shatwell stated there is no treatment that is reasonable or necessary.
Dr Vickery said there is no psychological treatment that is required arising from any injuries sustained in the 2015 accident.
The insurer submits no amount.
Past economic loss
The claim form indicates the claimant lost no income as a result of the accident.
The insurer understands the claimant did not return to work after the 2010 workplace accident and was in receipt of workers compensation payments at the time of the 2015 motor vehicle accident.
The claimant’s 2014, 2013, 2012 and 2011 tax returns indicated only workers compensation payments.
There is no income related to the carwash business indicated in the tax returns the claimant has provided. There is no evidence the claimant was working and earning $540 net per week before the accident, as he claims. There is no evidence of loss of income.
Further, the weight of the medical evidence does not support a claim that the claimant could not work, whether physically or due to a psychological condition, because of the 2015 accident.
Dr Shatwell opined the accident has not changed the claimant’s capacity for employment.
Dr Shatwell noted the claimant reported he was not able to continue with his car wash business because of ongoing pain in his back, neck and lower limbs. In his opinion there was no sign the 2015 accident caused any musculoskeletal derangement that would limit the claimant in managing his pre-injury work.The Review Panel findings do not support a 2015 accident related psychiatric impairment and Dr Vickery also found no 2015 accident related psychiatric injury.
The insurer submits no amount.
Future economic loss
Dr Harvey-Sutton considered there to be no loss of work ability arising from the 2015 accident, over and above his loss of work ability arising from the work-related accident of 2010.
Dr Shatwell stated the claimant’s future earning capacity has not been affected by any soft tissue injury sustained in the accident.
Dr Vickery stated there are no restricted pre-accident duties due to any psychological injury arising from the accident. There is no future earning capacity affected by any psychological injury.
The insurer submits no amount.
Past and future domestic assistance
In 2016 Dr Giblin opined domestic assistance was not required.
Dr Harvey-Sutton noted the claimant reported he did not carry out household activities before the accident. Dr Harvey-Sutton considered there to be no domestic assistance reasonable and necessary because of the 2015 accident.
Dr Shatwell said the 2015 accident has not changed the claimant’s need for personal or domestic assistance. Before the 2015 accident he was limited and the limitations are the same. Any need for domestic assistance is related to the February 2010 accident.
Dr Vickery said the functioning with respect to personal care, domestic assistance and home maintenance is affected by his incapacitating pain perception and not due to any psychological injury arising from the accident. The claimant did not perform any domestic duties before the 2015 accident. There was no reported assistance required since the 2015 accident because of any psychological injury sustained in the accident.
Mr Habib told Nexus Solutions in 2014 his wife had taken on all the duties he used to do before the 2015 accident because of the 2010 accident.
In relation to gardening/lawn mowing the claimant stated that at the time of the accident there were no lawns at his property where he was renting. The claimant claimed that he moved into his current home five years ago and has paid $120 per fortnight for lawn mowing to be completed. There was no documentation to support that.
Dr Shatwell said that any need for future domestic assistance is related to the February 2010 accident.
Dr Vickery stated the claimant does not require any domestic assistance because of psychological injury arising from the 2015 accident.
The insurer submits no amount should be awarded for the past or future.
Reasons
Reliability of the claimant’s evidence
Mr Habib gave his evidence forthrightly and was pleasant throughout the assessment. He was the only lay witness. I noted in answering questions that he was often confused about events and problems that happened before the 2015 accident, which were relevant to the claims he alleges the 2015 accident caused.
I also noted it appeared Mr Habib had not read his 2018 statement or that he could understand it when the insurer questioned him on it. Even with directed and supportive questioning he struggled.
Further Mr Habib had already suffered significant psychological and developmental setbacks unrelated to the 2015 accident.
It was noted that before 2015 he had developed “childhood anxiety and depression and conduct disorder and he had marked learning difficulties and is illiterate”. He had the added burden of helping to care for his invalided mother since he was a small child. There is a diagnosis of antisocial personality disorder, generalized anxiety disorder, and persistent depressive disorder, which could distort the history he considers related to the 2015 accident.
There is a lack of consistency with what Mr Habib told the medical examiners and OTs who examined him regarding the 2015 accident and what he told OTs before the accident. It indicates that Mr Habib has difficulty sorting the impacts of the first accident from the later accident.
The recent case of Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 (Stevens), highlights that if a party asks a tribunal to make findings on credit or reliability, then a tribunal may–where the claimant’s mental injury or other relevant factors are part of the facts– consider whether these could impact on how that claimant gives evidence. Accordingly, it is possible in this case to hypothesise that a lack of reliability or inconsistency could have been the product of Mr Habib’s conceded pre–2015 accident related psychological conditions rather than an attempt to mislead.
Other factors could be lack of sleep and the heavy medications he is taking, which he admits leave him foggy and fatigued as well as the demands of making his personal life work when he is constantly impaired and unable to work.
It is pertinent as well to consider whether Dr Vickery’s comment that Mr Habib failed to disclose his mental health history during this examination should be treated as a serious opinion about the witness’s credibility. The reports and clinical notes provide a number of other reasons why Mr Habib did not mention it.
However, despite his documented personal difficulties and despite the existence of potential witnesses who could have corroborated his claim, Mr Habib’s legal team decided on a forensic approach using Mr Habib as the sole source of lay evidence. Mr Habib has no corroborating evidence that could have given me a context for the different histories he has provided.
I could not find Mr Habib was a reliable witness because his recollection was muddled and inconsistent with the documentary evidence.
I cannot accept him on all matters of his personal and professional history and I need to rely on the documents submitted to guide me.
On the lay evidence, which may have corroborated the need for domestic assistance, purportedly from Marwah Habib, I am mindful the evidence must not just be logical and probative, it should establish to a fairly strong degree of satisfaction what the outcome should be.
Despite freedom from the rules of evidence, the Commission is obliged to afford the parties procedural fairness and not make decisions without a basis in evidence having rational probative force.[16]
[16] Dealing With Objections To Evidence: - Peter Callaghan SC, Barrister at law, Australian Construction Law Newsletter #67, 1999
Unfortunately, even allowing for freedom from the rules of evidence, I cannot rely on
Mr Habib’s oral evidence or the contents of Ms Habib’s purported statement to make my decision unless documentary evidence supports his claims.
The nature and extent of the injuries and resultant disabilities sustained in the accident
Sections 5D[17] and 5E of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining causation issues. Section 5E of the CL Act confirms that the onus of proof lies upon Mr Habib.
[17] 5D General principles
There is no dispute that the harm alleged to be caused or claimed could fall outside the scope of the negligent person’s liability under s 5D(1)(b) or that the injuries claimed occurred in the accident.
The disputed harm is whether Mr Habib’s accident-related condition is persisting and impacting his earning capacity and need for domestic assistance.
Section 5D(1)(a) requires me to ask if Mr Habib provided sufficient evidence to satisfy me that the harm claimed would not have occurred “but for” the negligence causing the accident.[18]
[18] Wallace v Kam [2013] HCA 19, [15].
As noted, the evidence regarding his physical injuries mostly supports a temporary causal nexus with the 2015 accident. The most supportive expert evidence is the later Dr Giblin report dated 15 December 2021.[19] It supports a nexus between the 2015 accident and the neck, thoracic and right shoulder pain. He also supported ongoing treatment for those body parts, including medication and physiotherapy.
[19] R11 page 412 AD14.
Otherwise, the expert evidence supports a temporary aggravation of the 2010 accident related lumbar spine condition and only soft tissue injuries, which resolved years ago.
Medical Assessor McGrath assessed the claimant on 14 September 2017. His examination found clinical signs of cervical spine impairment affecting the right shoulder. Therefore
Medical Assessor McGrath concluded that the accident caused soft tissue injury to the cervical spine and secondary dysfunction to the right shoulder. The 2015 accident did not cause the alleged lumbar spine injury and his account of an increase in symptoms could not be verified.The other experts largely support that opinion.
I find the 2015 accident did not cause or permanently aggravate the lumbar spine condition and the soft tissue injuries the 2015 accident caused have resolved.
There have been a number of different opinions on the claimant’s psychological diagnoses. Before the 2015 accident the claimant’s antisocial personality disorder, problems with persistent depression and substance misuse involving cocaine, opioids and alcohol as well as marijuana were all established.
Mr Habib is said to have told Dr Teoh he had “a beautiful life” before the 2015 accident, when it appears there was a lot of hardship, which the 2010 accident had worsened.
Also, the circumstances of the 2015 accident were only briefly described. It is not clear whether the 2015 incident is consistent with a criterion A stressor that could lead to post-traumatic stress disorder. There is no evidence he came close to losing his life.
Mr Koletti has spent the most time with Mr Habib, who observed that the 2015 accident had a distinct and separate impact, which he opined had set back the psychological recovery
Mr Habib had made since his 2010 accident.However, because of the inconsistency about what Mr Habib was telling specialists, what was in his statement and under questioning it was unclear whether his presentation to Dr Teoh and Mr Koletti, was not just a continuation of the conditions that existed before the motor accident and the 2010 work accident.
I agree the 2015 accident may have exacerbated the claimant’s mood symptoms but the weight of evidence shows that he has not developed a major depression or post-traumatic stress disorder or a significant anxiety disorder because of the 2015 accident.
If the accident had caused those conditions it is not clear if it would have impacted his earning capacity, considering he was already unfit physically and mentally.
Past out of pocket expenses
Mr Habib’s entitlement to past out of pocket expenses is limited to those the insurer set out above.
The lack of documented treatment expenses also signify that the 2015 accident did not require treatment because the impact was limited to a brief exacerbation of his existing condition and the soft tissue injuries have resolved.
The GP’s clinical notes do not support his claim he needs ongoing medications, because he has not sought treatment for the 2015 accident related conditions since 2019.
I assess the past out-of-pocket expenses as limited to the extent of the insurer’s submissions at $1,025.80.
Future medical treatment
Based on the preponderance of medical evidence the 2015 accident physical injuries at worst represented a temporary increase to his existing level of disability and pain from the 2010 accident.
It would not be appropriate to allow a buffer to pay for additional pain medication and reviews, because only Dr Giblin supports continuing medical support for his physical conditions.
In respect of Mr Habib’s psychological background it is mixed with influences from his upbringing, endogenous causes, the 2010 and 2015 accidents.
Mr Koletti sets out an ambitious program to achieve a global outcome, treating his mental health and rehabilitating him for work.
Mr Koletti may be prescribing a program that would help Mr Habib, but the medical evidence does not support a substantial nexus with the 2015 accident to his medical problems and the need for ongoing treatment.
I assess no allowance for future treatment expenses arising from this accident.
Past economic loss
As mentioned above, Mr Habib’s claim for past financial loss is constituted by these components:
(a) a claim for loss of earning capacity, and
(b) a claim for the lost opportunity to grow his business.
Mr Habib’s claims he was self-employed in the car wash as of the date of accident does not read as correct, particularly as the accountant’s report he relies on says the business was not set up until after the 2015 accident.
His claim form said he was not working at the date of accident.
Dr McKechnie’s opinion was that Mr Habib was already unfit for employment at the date of the 2015 accident unless he had the lumbar fusion. This opinion was based on a doctor to patient connection of almost five years duration and carries weight.
There is no evidence he was working on unrestricted duties and hours and earning a net weekly wage of $540. In his 2018 submissions he claimed he was unable to return to work for one month and he had lost $2,160. However, the documentary evidence does not support this claim.
There is no evidence which supports the submissions dated 9 March 2023 he claims he has lost a minimum of $1,500 net weekly for all relevant period since the accident, which is quantified at $625,000.
The video of Mr Habib managing and working in his car wash in 2017 demonstrated he was able to work at that time. There was no evidence that supported him struggling to do that work such as regular visits to the GP for prescriptions or a physiotherapist for treatment that may help him to continue work that was attributable to the 2015 accident.
It appears he decided to stop working and there is no documentary evidence that supports a 2015 accident nexus with that decision. Again some corroborative evidence may have provided some context.
I assess no past economic loss related to the 2015 accident.
Future economic loss
In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, [1999] HCA 47, the High Court has confirmed that the fundamental question to be determined in a case such as this is whether the 2015 accident caused this claimant sustain a loss or diminution in his earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must be mindful of the provisions of s 126 of the MAC Act.[20]
[20] 126 Future economic loss—claimant’s prospects and adjustmentsDimitra Dubrow and Gabrielle Feery's article from the Law Institute of Victoria journal on page 88 of the November 2014 edition[21] assists me in summarising the basic principles for evaluation of a claim for future economic loss as the High Court enunciated in Malec v JC Hutton Pty Ltd (Malec)[22] where it was held in assessing damages, the likelihood of future hypothetical events is to be taken into account.
[21] Doing the sums: Economic loss claims under the Wrongs Act, November 2014 88 (11) LIJ, p.48.
[22] Malec v JC Hutton (1990) 169 CLR per Deane, Gaudron and McHugh JJ at [7].
Justices Deane, Gaudron and McHugh stated that:
“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 . . . Where proof is necessarily unobtainable, it would be unfair to treat as certain a predication which has a 51 per cent probability of occurring but to ignore altogether a predication which has a 49 per cent probability of occurring. Thus, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”
Therefore, a claimant's future earning capacity must be evaluated by reference to probabilities, including business failures, commercial shocks such as recessions, promotion, growth or alternative employment. No precise probability calculations are provided, but all of those mentioned above are foreseeable and cyclical in occurrence.
Practically, the potential for future promotions and increases in earnings will be easier to establish for a claimant who had pre-injury employment with a clear career progression or in an industry with award rates. To support such a claim, a claimant would provide documentation such as industry award figures or details of comparable employee earnings and evidence from the claimant's pre-injury employer regarding the individual's career advancement prospects.
In this case one of the probabilities is that Mr Habib was already considerably impaired in his earning capacity because of the 2010 accident, particularly based on Dr McKechnie’s opinion. Also my reasons above for my past economic loss assessment apply.
Mr Habib has not attempted any return to any type of work since 2018, so he does not have a record of the cervical spine or right shoulder impacting on his capacity to work. He made a decision to stop working, but the preponderance of evidence does not tie it to the 2015 accident but to injuries mental and physical that occurred before the 2015 accident.
I am not satisfied the 2015 motor vehicle accident caused permanent injuries to his neck and right shoulder, which caused Mr Habib additional disadvantages on the open labour market, and specifically in any car washing career before the 2015 accident.
Because he was unfit for work before the 2015 accident I am not satisfied his most likely circumstances would be that he would have kept operating the car wash if not for the 2015 accident.
I assess no future amount for loss of earning capacity.
Past domestic assistance
Mr Habib recollection that he was independent in all his activities of active daily living before the 2015 accident, contrast with the information he gave the workers compensation OT in 2014. It was apparent in 2014 that he already relied on his wife to perform these activities.
For reasons set out earlier, I cannot accept the undated, unreferenced and unsigned statement under the name of Mr Habib’s sister. It did not address his state before 2015.
Ms Habib did not attend to give evidence and support her statement with her more recent observations.As Mr Habib was already relying on his wife to perform the domestic chores at the time of the 2015 accident, and there is no evidence, which supports a change in his needs since that accident, I decline to assess an amount for past assistance.
Future domestic assistance
For the same reasons above, and because the weight of evidence denies that the 2015 accident will cause changes that will increase his need for domestic assistance I decline to assess an amount for that head of damage.
Assessment of damages summary
Under sub-section 94(1)(b) of the MAC Act, I must assess the amount of damages for that liability that a court would likely award.
I assess the claim as follows on the findings set out above:
Economic losses
· Past loss of earnings $0
· Future loss of earnings as buffer $0
· Past medical treatment $1,025.80
· Future medical treatment $0
· Past domestic assistance $0
· Future domestic assistance $0
· Total loss of $1,025.80
Total Damages Assessed $1,025.80
Mr Habib’s assessment will be reduced by $880 for s 83 payments and subject to repayment to Medicare for the balance of his past medical treatment.
Costs and disbursements
Mr Habib’s legal costs and disbursements are regulated following ss 149 and 150 of the MAC Act and the Motor Accidents Compensation Regulation 2015.
It is a matter for the parties to resolve the amount of costs and disbursements. They may revert to me for a decision if they are unable to resolve this matter.
CONCLUSION
Regarding liability for the claim, the insured driver owed a duty of care to the claimant, breached that duty of care and sustained injury loss and damage due to that breach of duty.
Under sub-sections 94 (3) and 94 (4) of the MAC Act, I specify the amount of damages for this claim as $1,025.80.
The claimant’s costs and disbursements are to be resolved between the parties.
Legislation, authorities and guidelines
In making my decision, I have considered the following legislation, authorities and guidelines:
· MAC Act;
· Motor Accidents Compensation Regulation 2015;
· Claims Assessment Guidelines;
· Graham v Baker (1960) 106 CLR 340 at 347;
· Malec v J C Hutton (1990) 169 CLR 638 per Deane, Gaudron and McHugh JJ at [7] NSW v Moss (2000) 54 NSWLR per Heydon, JA at [70];
· Husher v Husher (1999) CLR 138, [1999] HCA 47;
· Morvatjou v Moradkhani [2013] NSWCA157;
· Luntz, Assessment of Damages for Personal Injury and Death, 5th ed (2021) LexisNexis, and
· Doing the sums: Economic loss claims under the Wrongs Act, November 2014 88 (11) LIJ, p.48.
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability)
(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.
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