Hanna v El-Chami

[2017] NSWDC 39

District Court

New South Wales

Medium Neutral Citation:	Hanna v El-Chami [2017] NSWDC 39
Hearing dates:	2 and 3 March 2017
Date of orders:	06 March 2017
Decision date:	06 March 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment in favour of the defendants. (2)   The plaintiff to pay the defendants' costs.
Catchwords:	NEGLIGENCE – motor vehicle accident – two car collision – factual dispute – credit – pre-existing disabilities
Cases Cited:	Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 Miller v Galderisi [2009] NSWCA 353
Category:	Principal judgment
Parties:	Bahia Hanna (plaintiff) Sarah El-Chami (first defendant) Abdullah El-Chami (second defendant)
Representation:	Counsel: Mr S Roulstone (plaintiff) Mr J B Turnbull SC (defendants)   Solicitors: AJB Stevens Lawyers (plaintiff) Sparke Helmore Lawyers (defendants)
File Number(s):	2016/56465
Publication restriction:	None

Judgment

A. BACKGROUND

1. Bahia Hanna was involved in a motor vehicle accident whilst driving to visit her adult daughter on 9 June 2014. She sues the driver of the other vehicle, Sarah El-Chami, and also the owner, Abdullah El-Chami, for damages for negligence. Ms Hanna says that Ms El-Chami attempted to overtake whilst Ms Hanna was turning right into her daughter’s driveway whereas Ms El-Chami says Ms Hanna was parked on the left-hand side of the road and without indicating drove in front of her. Both Ms Hanna and Ms El-Chami, whose sister lived in the area, were well familiar with the street.

B. ISSUES

2. The issues can be summarised as:

1. What were the circumstances of the collision and who was at fault?

2. What injuries to Ms Hanna resulted from the accident and what is the appropriate award of damages?

C. THE COLLISION

3. Evidence of the collision was given by three witnesses. Ms Hanna gave evidence through an interpreter that she slowed down to turn right into her daughter’s driveway, that she put her right indicator on, stopped, proceeded to turn right into her daughter’s driveway, and when she was about one metre or a little more short of the driveway, the other car collided with the driver’s side of her car. She denied that she had pulled out from the opposite curb, reversed her car, or failed to indicate. Her evidence was largely consistent with a statement she gave to police on the day of the accident save that her statement asserted that she, “Saw in my rear view mirror a white car speeding and as I was turning right into my daughter’s driveway,” whereas in evidence she denied seeing the other vehicle, saying she did not look to the rear.

4. When asked about the distance she travelled after activating her indicator before stopping to turn right, Ms Hanna said, “Five minutes,” which seems an excessive period.

5. Criticism was made of the reliability of Ms Hanna’s police statement because she could not speak, read, or understand English. There was evidence that the statement was prepared with the assistance of a neighbour who spoke Arabic, although that neighbour was not called.

6. Ms Hanna’s credit was challenged on the basis of her lack of disclosure to the defendant’s medico-legal experts of her pre-accident disabilities, although I do not think that this is a strong point, at least regarding her evidence of the collision.

7. Ultimately, I could not find any real fault with Ms Hanna’s evidence as to the collision. Nevertheless, her evidence must be considered against the other evidence. She did not recall whether white lines on the street marking the parking area were present at the time of the collision but I also do not think this is of much significance. There was no evidence of whether Ms Hanna habitually parked in her daughter’s driveway or on the street.

8. The first defendant, Ms El-Chami, also gave evidence. She was a young married lady on P-plates, who had had a previous accident 12 months before. She gave evidence that Ms Hanna was parked adjacent to the curb on the left-hand side of the road, that Ms Hanna’s right indicator was not activated, and that whilst Ms El-Chami was travelling along the street at 50 km/h, Ms Hanna suddenly drove out from the curb, turning right in front of Ms El-Chami. Ms El-Chami slammed on the breaks at about the instant of the collision. Ms El-Chami’s car then proceeded to collide first with another car parked on the right or east side of the road and then into a fence.

9. Ms El-Chami was challenged on her evidence but generally adhered to it. She conceded that the angle of Ms Hanna’s car was not perpendicular to her car but 45 degrees at the time of collision. Ms Hanna had indicated that it was, “Not much of an angle,” which I understood to mean close to perpendicular to Ms El-Chami’s car. Ms El-Chami denied that she was overtaking Ms Hanna’s car on the right‑hand side, denied that Ms Hanna’s right indicator was on, and denied that she (Ms El-Chami) had driven at an excessive speed or without care.

10. Ms El-Chami’s evidence may have some additional force compared to Ms Hanna’s in that she viewed both cars prior to the collision whereas Ms Hanna did not see the other car before the collision.

11. The primary challenge to Ms El-Chami’s testimony arose out of her initial statement to police. She gave a statement to police about six weeks after the collision which was consistent with her oral evidence. However, on the day of the accident, apparently whilst she was in the ambulance, she gave a statement to police that was not entirely consistent with her subsequent statement and evidence.

12. The earlier statement, although not altogether clear and unsigned by Ms El-Chami, appears to assert that Ms Hanna’s car was on the east side (or right side) of the road. Both parties agree that this is not factually correct. The statement also asserts that Ms Hanna’s car had its left blinker on initially and its right blinker subsequently activated, and that Ms El-Chami slowed before the collision.

13. When asked about this statement, Ms El-Chami referred to being in pain, in shock, dizzy, confused, that all the airbags in her car had activated in the collision, that she was given painkillers before the interview, and that she told the police officer that she could not remember anything at the time.

14. Senior Constable Jennifer Casey, the police officer who interviewed Ms El-Chami after the collision, gave evidence that Ms El-Chami was upset, crying, had mentioned that her back was hurting, and accepted that Ms El-Chami may have been given medication at the time.

15. I think that there is some force in Ms El-Chami’s submission that her condition may explain the inconsistencies in her initial statement. The statement is clearly mistaken as to Ms Hanna’s car initially being on the east side of the road and otherwise, apart from the reference to the indicators, it is not inconsistent with her evidence. The assertions in her initial statement are not relied upon by either party although her reference to the activation of the left blinker might support the observations of Ms Gregory.

16. Ms Leanne Gregory also gave evidence. She was not related to the parties but lived locally and was walking her dog. She was walking along the pathway, in the direction Ms El-Chami was travelling on the right-hand or east side of the road. She gave evidence that she saw Ms Hanna parked on the left-hand side of the road in front of a parked car and that Ms Hanna then reversed around that car and parked behind it. This manoeuvre she thought was bizarre and it captured her attention. She then saw Ms Hanna proceed from the parked position, turning to the right across the road towards the driveway and moving in front of Ms El-Chami’s car when the collision occurred. She did not see any indicators operating on Ms Hanna’s car. Her description of the circumstances of the collision was similar to and supported Ms El-Chami’s account.

17. Ms Gregory spoke to the police at the collision site and her details were recorded in a police notebook where she was noted as a witness but no written statement was recorded.

18. In cross-examination, Ms Hanna’s counsel, relying on the second statement of Ms El-Chami, suggested to Ms Gregory that she had sworn at Ms Hanna and blamed her for the accident. Ms Gregory did not recall doing this. It was unclear whether this reference in Ms El-Chami’s second statement was a reference to Ms Gregory, but, if it was, it indicated that Ms Gregory regarded Ms Hanna as at fault in the accident, a matter consistent with her testimony. That she may have forgotten her outspoken reaction to the collision some two and a half years ago is not a matter I regard as significant.

19. The only other matters that may bear upon the circumstances of the collision are the existence of debris and the position of vehicles. Police Officer Casey gave evidence that there was debris apparently from the collision on the left or west side of the carriageway. This might indicate that the collision occurred on the west rather than the east side of the centre of the road. Ms Casey also gave evidence that the debris “started” in the middle of the road, and that one car, apparently Ms Hanna’s, ended up on the western side of the centre of the road.

20. In summary, Ms Hanna’s evidence was credible and largely consistent with her earlier statement. But it conflicted with Ms El-Chami’s evidence, itself weakened by her initial statement, especially her reference to the indicators, even though there was force in her explanation for, and acceptance by both sides of, the unreliability of that initial statement. Ms Hanna’s evidence also conflicted with the evidence of the independent witness, Ms Gregory, whose credit was not in any way diminished in cross-examination. Ms Hanna’s statement also conflicted with the location of the debris and the location of Ms Hanna’s car since Ms Hanna’s description of the collision would place the collision debris well onto the east side of the road and could not readily explain how her car came to rest on the western side of the road if she was almost in an eastern side driveway at the time of the collision. Ms Hanna’s account also would provide less of an explanation as to how Ms El-Chami’s car continued to hit a parked car on the eastern side since Ms Hanna’s car, at the point of collision, would have effectively blocked the path of Ms El-Chami’s car to the location of any car parked on the eastern side.

21. Thus, on the one hand, I have Ms Hanna’s account, whilst on the other, I have the accounts of Ms El-Chami and Ms Gregory, the location of the debris, the location of Ms Hanna’s car and the fact that Ms Hanna’s car did not block Ms El-Chami’s car from subsequently colliding with another car parked on the eastern side of the road. All these matters together, and especially the evidence of Ms Gregory, persuade me that Ms Hanna was parked on the western side of the road before proceeding across the roadway in front of Ms El-Chami’s car.

22. There remains the question of the indicators. Ms Gregory did not see indicators. She was not asked whether she would deny that they were activated.

23. Ms Hanna and Ms El-Chami gave contrary evidence about the indicators, although Ms El-Chami’s initial statement referred to blinkers being activated. Ms Hanna, through her counsel, obtained from Ms El-Chami a concession in cross-examination that had Ms Hanna’s indicators been on whilst her car was parked on the kerbside, that she would have slowed down as a precaution. But this seems to be a matter that renders it less likely that the indicators were on since neither party suggested that Ms El-Chami did slow down before braking at the time of collision. The initial statement of Ms El-Chami, upon which neither party relied, might have supported such a suggestion.

24. In my view, once Ms Hanna is parked on the western kerb the presence or otherwise of an activated indicator is not significant. Ms El-Chami had right of way whilst travelling along the carriageway, and with the blinker on or not, Ms Hanna was obliged to give way before entering the carriageway from a parked position on the kerb. That she was obliged to indicate does not excuse her failure to give way even if her indicator was on.

25. In those circumstances, Ms El-Chami was not negligent in proceeding within the speed limit along the roadway. Although it was wet, the plaintiff did not submit that 50km/h was an excessive speed and I do not find that it was. Accordingly, the defendants are entitled to judgment.

D. DAMAGES

26. It is appropriate that I make some brief findings on damages in case I am in error on liability. Ms Hanna claimed neck, back, shoulder and knee injuries as a result of the collision. However, the medical evidence established, and it was conceded, that Ms Hanna had pre-existing complaints of each of these claimed disabilities. Further, during the course of the trial, any claim based on disability arising from her right knee was abandoned.

27. Ms Hanna was found on a MAS assessment to have 0% whole person impairment. Thus, she did not satisfy a pre-condition for an award of non‑economic loss. As she was not and had not ever been in paid employment, she made no claim for past or future lost earning capacity. Accordingly, her claim comprised four heads of damage: past and future medical expenses; past and future domestic assistance and care.

28. Past medical expenses were agreed to be $4,665.94 of which $1,642.39 had already been paid by the insurer. Thus, there was an agreed amount of $3,023.55 for out of pocket medical expenses.

29. Future medical expenses of $31,121 are claimed, comprising expenses for ongoing psychological treatment, psychotropic medication, physiotherapy, pain medication and general practitioner visits.

30. This claim, and a claim for care, depends in part on the pre-existing level of disability of Ms Hanna.

31. Scans both before and shortly after the accident (Exhibit B pp 292-297) indicate that Ms Hanna had pre-existing L3/4 and L4/5 disc bulges with L4 and L3 nerve root compression, severe lumbar canal stenosis, degenerative changes and also some degenerative arthritis at the T10/11 level. She had previously received a spinal injection into the L4 nerve root (Exhibit B pp 290‑291). There were no compression fractures and surgical intervention was not warranted.

32. Ms Hanna’s treating doctor, Dr Mahmoud Hamad, provided a report dated 9 May 2016 (Exhibit B p 352, see also Exhibit B p 20) also. It was not referred to in submissions. The report attributed the L3/L4 and L5 problems to the collision. This does not seem reasonable given that those problems were apparent in the pre‑accident scans and were degenerative in nature. Further, referrals and treatment by Dr Hamad in September 2014 (and by the referred neurosurgeon, Dr Renata Bazina) make little or no reference to the accident.

33. However, it is apparent that Ms Hanna sought medical assistance more frequently after the accident.

34. Ms Hanna’s medico-legal orthopaedic expert, Dr James Bodel, concluded that although Ms Hanna had had previous problems in her back, the motor vehicle accident had aggravated her condition. He gave a diagnosis of soft tissue injury to the neck, back and right shoulder and found 13% whole person impairment (including 2% for the lower right extremity which I understand to be her right knee, see Exhibit B p 365). Dr Bodel indicated that the early MAS assessment by Dr Crane of 0% impairment failed to assess her right shoulder and right knee (Exhibit B p 370), although a review of that assessment shows that these matters were considered (Exhibit B p 90).

35. Dr Bodel recommended conservative treatment. In his final report in respect of her condition and final prognosis (Exhibit B p 370), reference was made only to her right knee. As indicated earlier, all claims in respect of Ms Hanna’s right knee were not pursued at the hearing.

36. Dr Bodel indicated a need for assistance with “heavy household maintenance and cleaning activities”, and referred to the occupational therapist’s report. That report by Ms Kate Dawson indicated an ability in Ms Hanna to do cooking and some mopping, sweeping and vacuuming (Exhibit B p 379). The report referred to the assistance given by Ms Hanna’s daughter, Ramzya Issy. Mrs Issy gave evidence that she did all the domestic tasks for her mother although Ms Hanna’s evidence did not go quite so far and was more consistent with her occupational therapist’s report. Ms Hanna gave evidence that changing bed linen was hard and getting up and down to tend to visitors was beyond her. Ms Hanna also is a registered carer for her husband but no claim was made for an inability to provide that care.

37. In this context, I consider the remaining heads of damage. No reference was made in submissions of, or to any evidence indicating, the need for psychological treatment or psychotropic medication, and I would not propose to make an award for those potential expenses. Ms Hanna will require general practitioner consultations, pain medication and ongoing physiotherapy. Her claim of $16,996 for these treatments must be significantly discounted because the amounts are predominantly due to her knee and back complaints that pre-existed the motor vehicle accident. I would allow a buffer of $5,000.

38. That leaves the question of care. A claim was made for past domestic care and assistance services of 11.5 hours per week for 39 weeks. This was based on the opinion of her occupational therapist. The defendant’s occupational therapist allowed a similar level of care but only for a 6 to 12 week period.

39. Ms Hanna is not entitled to any award for past gratuitous care unless she required care for at least six hours per week for six months. I would be prepared to allow that level of care together with an additional 5 hours of care for the first 12 weeks. Thus, an award of damages would include:

$
11.5 hours x 12 weeks x $27.96	3,858.48
Plus: 6 hours x 14 weeks x $27.96	2,348.64
Past gratuitous care	6,207.12

40. For future domestic care, six hours a week is claimed. However, this must be discounted because it includes an amount for Ms Hanna’s knee problem which is no longer present. A lesser amount of assistance, say three hours a week, would be compensable only if paid care was obtained as three hours per week would not satisfy the six hour per week threshold applicable to gratuitous domestic assistance or “attendant care”. Ms Hanna has not at any time retained paid help. Nor was any explanation given for this circumstance. She gave no evidence that she would engage paid help. In answer to what she would do if her daughter was no longer able to assist, she replied that she would get assistance from her daughter-in-law.

41. Evidence of family closeness and regular activities together seemed only to confirm that any needs of Ms Hanna would be met by her family. Mrs Issy’s evidence that if Ms Hanna received paid help, Mrs Issy would gladly stop her assistance and spend more time with her children was not evidence of a likelihood of her mother obtaining paid help (see generally Miller v Galderisi [2009] NSWCA 353 at [14]-[25]; Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 at [79]).

42. In these circumstances, no award could be made for paid help as I am not persuaded that any paid help would be obtained and the level of unpaid help does not reach the threshold so as to be compensable.

43. Accordingly, I would assess the amount of damages at:

Head of damage	$
Past unpaid medical expenses	3,023.55
Future medical expenses	5,000.00
Past attendant care services	6,207.12
Total	14,230.67

44. The defendants also allege contributory negligence. It does not arise as I have not found negligence in Ms El-Chami. If Ms Hanna’s account were accepted, including that she indicated her right‑hand turn whilst driving down the roadway, I would not find any contributory negligence.

E. COSTS

45. The parties had asked that I reserve the question of costs although after the delivery of these reasons the plaintiff conceded that no submission would be made against a costs order in favour of the defendants on the basis that costs should follow the event.

F. ORDERS

46. The orders of the Court shall be:

1. Judgment in favour of the defendants.

2. The plaintiff to pay the defendants' costs.

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Decision last updated: 09 March 2017