Hanna v Mahbub; Hanna v The Nominal Defendant

[2018] NSWDC 310

District Court

New South Wales

Medium Neutral Citation:	Hanna v Mahbub; Hanna v The Nominal Defendant [2018] NSWDC 310
Hearing dates:	30 April 2018
Date of orders:	30 April 2018
Decision date:	30 April 2018
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	In 2015/79747: (1)   Note that the plaintiff did not appear despite being called. (2) Note that the defendant sought judgment under r 29.7(2) of the Uniform Civil Procedure Rules 2005 after a short hearing on the merits. (3)   As no medical evidence is to be tendered and both claims arise out of the same incident, I order that the evidence in proceedings 2015/79768 be evidence in these proceedings. (4)   Judgment for the defendant. (5)   Plaintiff to pay the defendant's costs on an indemnity basis.  In 2015/79768: (1)   Note that the plaintiff did not appear despite being called. (2) Note that the second defendant sought judgment under r 29.7(2) of the Uniform Civil Procedure Rules 2005 after a short hearing on the merits. (3)   As no medical evidence is to be tendered and both claims arise out of the same incident, I order that the evidence in proceedings 2015/79747 be evidence in these proceedings. (4)   Judgment for the second defendant. (5)   Plaintiff to pay the second defendant's costs on an indemnity basis.
Catchwords:	NEGLIGENCE – motor vehicle accident - fraud
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 29.7, r 36.16
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336
Category:	Principal judgment
Parties:	2015/79747: Imad Hanna - plaintiff Gazi Mahbub - defendant   2015/79768: Muntaha Hanna - plaintiff The Nominal Defendant - first defendant Gazi Mahbub - second defendant
Representation:	Counsel: Mr S Harben SC - Gazi Mahbub   Solicitors: QBE Legal (Claims) - Gazi Mahbub
File Number(s):	2015/79747; 2015/79768
Publication restriction:	None

Judgment

1. On 1 January 2014 Gazi Mahbub was driving his vehicle when it collided with the rear of a stationary vehicle belonging to Imad Hanna. Mr Mahbub says that the vehicle with which he collided contained no occupants.

2. In April 2014 Mr Hanna visited the Wetherill Park Police Station to report the incident. On 19 May 2014 both Mr Hanna and Mrs Hanna made claims for personal injuries arising from the collision. Those claims are the basis of the proceedings before me.

3. The claims and the police report assert the presence of Mr and Mrs Hanna in the stationary vehicle. Mrs Hanna, in her claim, also pleaded an earlier accident and injuries against an unidentified driver and joined the Nominal Defendant as a party. That claim was resolved on terms that the claim was dismissed with each party to pay their own costs.

4. The defendant insurer of Mr Mahbub resists Mr and Mrs Hanna's claims, asserting that they are fraudulent. When the trial was called on, there was no appearance from Mr and Mrs Hanna. I was told by counsel for Mr Mahbub that his solicitor had received an email indicating the plaintiffs’ intention to discontinue, but nothing further had been received.

5. Rule 29.7 of the Uniform Civil Procedure Rules 2005 provides an option for a defendant, when the plaintiff does not appear at the trial, to seek dismissal of the proceedings under subr (4) or have the trial proceed under subr (2). Counsel for Mr Mahbub sought the latter, referring to the allegation of fraud and the insurer's statutory obligations in respect of fraud. I acceded to this request, notwithstanding that the absence of a party and r 36.16 may limit the complete finality that would attach to a judgment.

THE DOCUMENTS   

6. Claim forms for Mr and Mrs Hanna are both signed. Above each signature were the words:

"Declaration

I solemnly and sincerely declare that, to the best of my knowledge, the information given in the Motor Accident Personal Injury Claim Form is true and correct in every respect…

I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1900.

[signature]".

7. As mentioned earlier, the presence of Mr and Mrs Hanna in the front vehicle is plainly asserted in both the claim forms and in the police report made by Mr Hanna. Both claim forms and the police report record the accident occurring at the corner of Parramatta Road and Crystal Street. Both claims involved lengthy lists of varied injuries. Mrs Hanna, in her claim form, refers to:

"Neck, back, psychological injury, eyes, headaches…pain in eyes, pain below left ear, neck pain, back pain, cold sweats, anxiety, stress, panic attacks, fear of entering vehicle, inability to undertake housework."

8. Mr Hanna lists, in his claim form, injuries as follows:

"Neck, back, shoulders, arms, wrists, teeth/face, psychological

…

Loss of front teeth, pain in affected areas, sleep disturbance, stress, anxiety, headaches, reliance on medication, pain in upper left leg."

9. The police report states, initially, that no one was injured in the collision, although it does subsequently record that Mr Hanna:

"claimed that he had suffered a neck injury as a result of the collision and his front teeth had fallen out. He also claimed that his wife had suffered pain to her neck, head and back, also as a result of the collision."

10. The lists of injuries arising from the collision are amplified in the statements of particulars. Mr Hanna refers to:

"a. Pain in neck

b. Pain in mid back

c. Pain in lower back

d. Pain in radiating to legs

e. Pain in left shoulder

f. Pain in right shoulder

g. Sleep disturbance

h. Reliance on medication

i. Discomfort and restricted movement in affected areas

j. Difficulty standing, sitting, crouching, squatting, kneeling, twisting, lifting, bending, pushing, pulling, walking and undertaking prolonged and/or repetitive tasks involving the abovementioned body parts

k. Loss of front teeth

l. Headaches

m. Gastrointestinal symptoms

n. Stress

o. Anxiety".

11. Mr Hanna’s injuries as a result of the subject accident are listed in the statement of particulars as:

“a. Injury to cervical spine

b. Injury to thoracic spine

c. Injury to lumbar spine

d. Injury to left shoulder

e. Injury to right shoulder

f. Injury to arms

g. Injury to left wrist

h. Injury to right wrist

i. Injury to teeth

j. Psychological injury."

12. Mrs Hanna refers in her statement of particulars to:

"a. Injury and aggravation to cervical spine

b. Injury and aggravation to thoracic spine

c. Injury and aggravation to lumbar spine

d. Injury to left knee

e. Injury to left ankle

f. Psychological injury."

And then gives a long list of disabilities, namely:

"a. Pain in neck

b. Pain in mid back

c. Pain in lower back

d. Stiffness in neck and back

e. Pain in left ankle

f. Pain in knee

g. Restricted movement in neck and back

h. Pain radiating from neck to shoulders

i. Dizziness

j. Sleep disturbance

k. Forgetfulness

l. Gastrointestinal symptoms

m. Stress

n. Anxiety

o. Anger bouts

p. Crying bouts

q. Travel anxiety

r. Fear of driving

s. Headaches

t. Pain around temporomandibular joint

u. Insomnia

v. Panic attacks

w. Cold sweats

x. Reliance on medication

y. Difficulty standing, sitting, crouching, squatting, kneeling, twisting, lifting, bending, pushing, pulling, walking and undertaking prolonged and/or repetitive tasks involving the abovementioned body parts".

13. Both Mr and Mrs Hanna included in their statements of particulars a claim for economic loss and loss of earning capacity. Mrs Hanna's claim was that she was "unable to work since the first subject motor vehicle accident in June 2013," which is a reference to the accident that prompted the claim against the Nominal Insurer. This claim was abandoned in an amended statement of particulars.

14. Mr Hanna, as I said, also claimed for loss of capacity, alleging that he had to close the shop "early on most nights as a result of his ongoing injuries and disabilities" and that he had to "close his business one day per week". Again, this claim was abandoned in an amended statement of particulars. Mr Hanna claimed, in particular, a loss of his front teeth arising from the collision. There was, in the evidence, a medical report provided to Mr Hanna's then solicitor dated 17 September 2015, where a dental surgeon called Dr Paul Nichols stated:

"There were treatment notes commencing 14/6/14 that do not mention the MVA but do mention serious periodontal disease causing loss of teeth pre MVA. There was no medical/dental history or charting. There was no detail of treatment provided…There was mention that the dentures provided fractured soon after issue. There was mention of an OPG but no results of the investigation (diagnosis) recorded. There was no radiologists report. These notes are inadequate and would not pass a Dental Board investigation."

15. Later in the report, Dr Nichols said, in regards to causation:

"Without study of pre MVA dental records, photos and x-rays I am unable to make definitive comment. There is no doubt there was a pre-existing condition of periodontal disease causing loss of teeth pre MVA. It is possible the MVA has aggravated that condition. I am unable to apportion causation."

ORAL EVIDENCE

16. Mr Mahbub gave evidence. He said that he was employed by Mr Hanna at Mr Hanna's pizza shop near the corner of Charles Street on Parramatta Road, Petersham, to do deliveries and other tasks. On 1 January 2014 he noticed at about 7 to 7.30pm that Mr Hanna's son, Andrew, and Mrs Hanna arrived in a Honda Accord and parked at the front of the shop on Parramatta Road. Andrew and Mrs Hanna then went into the shop. Mr Mahbub said that Mr Hanna drove a utility and parked around the corner in Charles Street when he attended the shop.

17. Mr Mahbub subsequently carried out a delivery and returned to the shop. He said that due to his footwear slipping, he failed to bring his car to a complete stop before having a minor collision with the Honda Accord that had earlier been driven and parked by Andrew Hanna, and thereby damaged its rear bumper.

18. Mr and Mrs Hanna came out of the shop immediately after the sound of the collision. Mr Mahbub told them that he had comprehensive insurance and would make a claim to cover the repairs to their car, which he subsequently did. Mr Mahbub went overseas on 22 April 2014 and returned on 15 June 2014. When he returned, Mr Mahbub noticed a letter had arrived for him from QBE Insurance, which indicated that Mr Hanna had made a personal injury claim in respect of the accident. Mr Mahbub visited Mr Hanna, where Mr Hanna told him that he had lodged a claim.

19. Some weeks later, Mr Mahbub contacted QBE Insurance and gave a statement dated 29 August 2014. In that statement, Mr Mahbub confirmed that no one had been in the Honda Accord at the time of the collision, that the collision occurred outside the restaurant near the corner of Charles Street, some distance away from Crystal Street, and that Mr Hanna always remained in the shop during business hours, and that he had never seen Mr Hanna drive the Accord.

20. Mr Mahbub's evidence in the witness box was to the same effect as in his statement. Mr Mahbub also gave evidence of a statement he recorded on 10 September 2014 on his computer, a copy of which was tendered in evidence, which recorded a phone call two days earlier between himself and Mr Hanna. The statement records attempts by Mr Hanna to have Mr Mahbub change his statement.

21. I accept Mr Mahbub to be an honest and reliable witness. His evidence was contrary to those documents recording Mr and Mrs Hanna's claims and their report to police. Nothing in his evidence was inconsistent with any of the other documentary evidence.

CONCLUSION

22. I am satisfied that Mr Mahbub's account is correct. Although fraud is a serious allegation and the principles of Briginshaw v Briginshaw [1] must apply, I am nevertheless satisfied on the balance of probabilities that Mr and Mrs Hanna did make a false and fraudulent claim, that they were not in the vehicle at the time of the minor collision and that they were not in any way physically injured as a result of that collision. There must be judgment for the defendant.

    1. (1938) 60 CLR 336.

COSTS

23. The defendant seeks indemnity costs. The claim had no merit. It was false and known to be false. Mr and Mrs Hanna were aware from 2014 that Mr Mahbub had reported its falsity, yet they continued with the proceedings, although they did not appear at trial. No justification for the claim can be ascertained and I conclude there was none. As a result, costs have continued to be incurred up to and including the hearing. In my view, the fraudulent police report and claims, and the continued prosecution of fraudulent proceedings amply justify an indemnity costs order.

ORDERS

24. In Mr Hanna's proceedings, 2015/79747, the orders are:

1. Note that the plaintiff did not appear despite being called.

2. Note that the defendant sought judgment under r 29.7(2) of the Uniform Civil Procedure Rules 2005 after a short hearing on the merits.

3. As no medical evidence is to be tendered and both claims arise out of the same incident, I order that the evidence in proceedings 2015/79768 be evidence in these proceedings.

4. Judgment for the defendant.

5. Plaintiff to pay the defendant's costs on an indemnity basis.

25. In Mrs Hanna's proceedings, 2015/79768, the orders are:

1. Note that the plaintiff did not appear despite being called.

2. Note that the second defendant sought judgment under r 29.7(2) of the Uniform Civil Procedure Rules 2005 after a short hearing on the merits.

3. As no medical evidence is to be tendered and both claims arise out of the same incident, I order that the evidence in proceedings 2015/79747 be evidence in these proceedings.

4. Judgment for the second defendant.

5. Plaintiff to pay the second defendant's costs on an indemnity basis.

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Endnote

Decision last updated: 29 October 2018