Hawchar bht Manal El Haj Dib v Diab; Dib v Diab

[2018] NSWDC 219

District Court

New South Wales

Medium Neutral Citation:	Hawchar bht Manal El Haj Dib v Diab; Dib v Diab [2018] NSWDC 219
Hearing dates:	26-28 February 2018; 1-3 March 2018; 5 March 2018;14-18 May 2018; 22 June 2018; 26 June 2018
Date of orders:	10 August 2018
Decision date:	10 August 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	In the proceedings relating to Mrs El Haj Dib: (1) The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days; (2) The question of costs is reserved; (3) Liberty to apply in relation to the issue of the costs of the proceedings; (4) Exhibits to be retained until further order.  In the proceedings relating to Manessa Hawchar: (1) The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days; (2) The question of costs is reserved; (3) Liberty to apply in relation to the issue of the costs of the proceedings; (4) Exhibits to be retained until further order.
Catchwords:	Torts – negligence – motor vehicle accident – circumstances of the collision – credibility issues – assessment of damages – past and future domestic assistance – potential loss of future earning capacity for a child
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Civil Liability Act 2002 (NSW)
Cases Cited:	Afoa v McBride [2017] NSWCA 323 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Curtis v Harden Shire Council [2014] NSWCA 314 El-Mohamad v Celenk [2017] NSWCA 242 Fabre v Arenales (1992) 27 NSWLR 437 Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 New South Wales v Moss (2000) 54 NSWLR 536 Newell v De Costi [2018] NSWCA 4 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182
Category:	Principal judgment
Parties:	Manessa Hawchar by her Tutor Manal El Haj Dib (First Plaintiff) Manal El Haj Dib (Second Plaintiff) Bilal Diab (Defendant) AAI Limited t/as GIO (Second Defendant) (from commencement of hearing until 16 May 2018)
Representation:	Counsel: D Campbell SC and R Di Michiel (Plaintiffs) W Fitzsimmons (Defendant from 17 May 2018) (Second Defendant from commencement of hearing to 16 May 2018)   Solicitors: Premier Compensation Lawyers (Plaintiffs) Defendant (in person from commencement of hearing until 16 May 2018, thereafter Curwoods Lawyers) Curwoods Lawyers (Second Defendant from commencement of hearing until 16 May 2018)
File Number(s):	2015/002218632016/00194351

CONTENTS

Paragraph
Judgment	1
The pleadings	8
The plaintiffs’ evidence
Oral evidence of Mr N Mansour	16
Oral evidence of Mr Y Safi	41
Oral evidence of Mrs Manal El Haj Dib	56
Oral evidence of Ms Amne Dib	183
Credit findings in relation to Mrs Dib	219
Medical and other evidence for Mrs Dib	226
Motor accident Claim Form	227
Police report	231
Reports of Dr J Davis	232
Report of Dr M Gibson	242
Report of Dr M Hamad	249
Reports of Ms K Lethbridge	251
All Care Physiotherapy	254
West Hoxton Medical Centre notes	255
Radiological investigations	261
Reports of Dr Marsh, Occupational Physician	267
Medical and other evidence for Manessa Hawchar	272
Motor Accident Personal Injury Claim Form	274
Report to police	277
Medical reports
Reports of Dr J Davis	278
Report of Dr R Gertler, psychiatrist.	286
Report of Dr F Wong	293
Report of Dr M Hamad	294
Liverpool Hospital records	295
West Hoxton Medical Centre records	296
Evidence for the defendant	299
The evidence of Mr Abboud	301
The defendant's medical evidence in relation to Mrs Dib
Medical reports of Dr A Lowy	312
Report of Ms D Piebenga, occupational therapist	325
The defendant's medical evidence in relation to Manessa Hawchar	331
The submissions of the parties	349
Medical findings
Findings in relation to the medical evidence concerning Manessa	352
Medical findings in relation to Mrs Dib	369
Did an accident occur on 26 August 2014 as claimed by the plaintiffs?	376
Duty of care and breach	383
Causation	390
Contributory negligence	395
Damages
Introduction	396
Past out of pocket expenses	399
Future out-of-pocket expenses	402
Past loss of earning capacity	406
Future loss of earning capacity	407
Domestic assistance	419
Disposition	430

Judgment

1. These proceedings relate to two claims for damages for negligence made under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) concerning injuries alleged to have been suffered by the plaintiffs as a result of a motor vehicle accident on 26 August 2014 being:

1. A claim by a seven year old child, Manessa Hawchar by her tutor Manal El Haj Dib, being matter number 15/221863; and

2. A claim by Manessa Hawchar’s mother, Manal El Haj Dib, being matter number 2016/194351.

2. An order was made at the commencement of the final hearing that evidence in one proceedings would be evidence in the other proceedings.

3. As stated, the plaintiffs allege that they were injured in a motor vehicle accident which occurred on 26 August 2014. At that time, it is alleged both Manessa Hawchar and Mrs El Haj Dib (Mrs Dib) were travelling in a Volkswagen Beetle sedan driven by the father of Manessa and the husband of Mrs Dib, Mr Bilal Diab, along the Hume Highway near Warwick Farm in Sydney in New South Wales. It is alleged that it was raining at the time. It is further alleged that the vehicle in front braked and Mr Diab negligently failed to stop his vehicle in time, with the result that it collided with the rear of the vehicle ahead.

4. The plaintiffs allege that they suffered a number of injuries and continuing disabilities as a result of the accident. In particular, Mrs Dib claims that she suffers from continuing and debilitating serious pain. At the time of the accident, Mrs Dib was not in employment. There is no claim by her for loss of wages or loss of future earning capacity. Neither plaintiff claims to have suffered non-economic loss which satisfies the impairment threshold of greater than 10% which allows for an award of damages for non-economic loss under s 131 of the Act.

5. In 2016, orders were made by the court joining AAI Ltd, trading as GIO, as the second defendant in both proceedings under s 119 of the Act. The second defendant, in substance, denied that either plaintiff was travelling in the Volkswagen motor vehicle at the time of any collision and also denied that it was roadworthy at the time. In essence, it alleged that the accident was fabricated to the extent it was alleged that the plaintiffs were in the car.

6. On the ninth day of the hearing, the second defendant withdrew those positive denials. The plaintiffs then made an application to revoke the leave granted under s 119 of the Act in 2016 which, after a contested hearing, was successful. The only defendant in the proceedings was then Mr Diab. Defences were then filed with leave for Mr Diab which put the circumstances of the accident in issue and denied that the plaintiffs had suffered any injuries in the accident entitling them to any relief as sought.

7. Accordingly, the issues raised for consideration by the proceedings are as follows:

1. Was either plaintiff involved in a motor vehicle accident as alleged as a passenger in the Volkswagen Beetle on 26 August 2014?

2. If so, did the defendant breach his duty of care which he owed to each plaintiff?

3. If so, was either plaintiff injured as a result of the accident?

4. If so, what is the extent of those injuries and what damages, if any, should be awarded to the plaintiffs under the Act.

The pleadings

8. The pleadings are very similar in both proceedings.

9. In Manessa Hawchar’s (“Manessa”) proceedings, a Further Amended Statement of Claim was filed on 17 May 2018. The Further Amended Statement of Claim, in substance, pleads as follows:

1. The defendant was at all material times the driver of a motor vehicle registered XXX17N;

2. On 26 August 2014, at approximately 5:30pm, the plaintiff Manessa was a passenger in the vehicle travelling on the Hume Highway;

3. The vehicle collided with the rear of another vehicle travelling immediately in front of it causing the plaintiff Manessa to suffer injury;

4. The injury was caused by the negligence of her father, Mr Diab the defendant, by inter alia, failing to keep a proper lookout, failing to travel behind the vehicle in front at a safe distance and failing to brake, steer or otherwise manage the defendant’s vehicle to avoid the collision.

10. A Statement of Particulars filed on 25 January 2018 pleads that Manessa suffered psychological/psychiatric injuries, injuries to the left shoulder, right and left legs, back, urinary incontinence and trauma to the “upper right facet articulation” with related continuing disabilities.

11. A claim is made for past and future out-of-pocket expenses, future domestic assistance and an alleged loss of future earning capacity on a buffer basis.

12. In his Defence, filed on 17 May 2018, the defendant:

1. Does not admit that Mr Diab was at all relevant times the driver of motor vehicle registered XXX17N;

2. Does not admit that Manessa was a passenger in the Volkswagen Beetle travelling on the Hume Highway, Warwick Farm;

3. Does not admit the circumstances of the collision as alleged and denies Manessa suffered injury as alleged;

4. Denies that any injury was caused by the negligence of her father, Mr Diab;

5. Denies that the plaintiff Manessa is entitled to the relief sought.

13. There are very similar pleadings in the other matter. Mrs Dib’s Further Amended Statement of Claim was filed on 17 May 2018 and alleges injury in the same accident with similar particulars of negligence. Much more significant particulars of injuries and continuing disabilities are set out in a Statement of Particulars filed on 25 January 2018.

14. Although no claim for non-economic loss or past or future loss of wages or earning capacity is made, there are considerable claims for past out of pocket expenses, future out of pocket expenses and past and future domestic assistance, including commercial assistance.

15. A Defence was filed by the second defendant dated 17 May 2018. Again, it is similar to the Defence in Manessa's proceedings.

The plaintiffs’ evidence

Oral evidence of Mr N Mansour

16. Oral evidence was given in the proceedings by Mr Nehmeh Mansour. Mr Mansour was allegedly the driver of the motor vehicle into which Mr Diab’s motor vehicle collided at the time of the accident in question in the proceedings.

17. Mr Mansour gave evidence that his place of employment is in Liverpool. He gave evidence that his usual hours of work are between 7:30am and 5:30pm on weekdays and that for the purposes of his employment he was provided with a company car which he drove to work from his place of residence. Mr Mansour stated that in 2014 he had a Hyundai station wagon. He said its registration number was XXX0 JA.

18. Mr Mansour stated that his usual route from his place of employment to home was either on the Hume or Cumberland Highways. He stated that near Warwick Farm was a substantial intersection between the Hume Highway and Governor Macquarie Drive where some lanes continued and at least one lane turned to the right. Mr Mansour was then asked about the accident.

19. Mr Mansour said that as he approached the intersection he was travelling either in the left lane or the middle lane on a date in August 2014 at about 5:30pm. He did not recall the precise day in August: T25. Mr Mansour said he had just passed the Warwick Farm train station and there was a traffic light at the intersection which was red. He said he stopped at the light and was the last car in the lane. He said he was hit from behind by a Volkswagen Beetle. He described being: “bumped a little bit forward”: T25.36.

20. Mr Mansour said that his recollection was that he pulled his vehicle to the side of the road and exchanged details in a conversation with the driver of the vehicle which collided with him. Mr Mansour said he did not recall the details which were exchanged but merely that an exchange of details occurred: T26.48. He said his car was damaged on the back and the Volkswagen Beetle was either white or silver in colour: T27. He said he did not recall the number-plate of the vehicle but believed he recorded it. He was asked what observations he made in relation to the vehicle and he said that it was damaged at the front: T27.32.

21. Mr Mansour was asked whether other persons were present. He said that there was a lady present and he thought there was a child but he could not recall that for certain: T27.44. He said that the lady was standing next to the male driver when he exchanged details with them: T27.46. This is inconsistent with evidence later given by Mrs Dib.

22. Mr Mansour said he had not met either the man or the lady before and he had not had any contact with the driver since: T28. He agreed that in relation to investigations since, he had been contacted and someone had attended at his office to discuss the accident. Mr Mansour said he lodged a claim in order to get his car fixed and this was attended to by the insurance company. He said he was given a car by the repairer to drive until his car was fixed: T28.33.

23. Mr Mansour said a tow truck with its driver attended the scene of the accident: T28.37. He said he could not recall the name of the tow truck driver. He said the police did not attend. In answer to the question whether he reported the matter to police, Mr Mansour said that he was told by the tow truck driver that there was no need to report the matter to police if neither car needed to be towed: T29.2.

24. When Mr Mansour was asked whether he recognised any of the persons from the day of the accident whilst at court he said that he believed that a man that he saw outside the court rang a bell in his recollection but he did not see the lady that he recalled: T29.11.

25. In cross-examination Mr Mansour confirmed that he had never met or seen the driver prior to the accident: T29.17. He confirmed his evidence that he did not know Mr Bilal Diab at the time of the accident and denied that he had been to an address in Austral and played cards with Mr Diab and others: T29.45.

26. Mr Mansour said that on the day of the accident he was coming from his work but he could not recall whether he was proceeding to Guildford or to Merrylands. He confirmed that it was on a weekday and that the accident occurred at about 5:30pm. He also confirmed that the road where the accident occurred was a very busy thoroughfare and that it was peak hour. He stated that it was a major intersection which he drove up to and stopped. He could not recall how many cars were in front of him to the stopping position at the lights but he stated that his was not the front car. On further questioning, Mr Mansour said that he could not recall which of the through lanes he was in and it could have been either the left (kerb) lane or the centre lane. He stated that he recalled pulling to the side of the road to exchange details with the driver of the car which had collided with his car. He agreed it was possible that he could have been in the kerb lane and stopped to exchange details. In order to do this he said that he stood on the kerb with the driver of the car.

27. When asked about the severity of the impact, Mr Mansour confirmed that to him it was a “fairly light” impact: T32.11. He said it may have pushed his car forward a little but the force of the collision did not propel his car to collide with the car in front. When asked whether the Volkswagen pulled to the kerb lane as well as his car, Mr Mansour said that from memory the Volkswagen moved to the kerb lane as well: T32.20. He said he could not be 100% certain that the Volkswagen had been driven again after the accident.

28. Mr Mansour agreed that the male driver got out and exchanged details with him and that a woman also got out of the car (T32.37) and she stood next to the male driver. He said that all present were standing on the kerb on the side of the road: T33.5. In his insurance claim form he stated that the wife of the driver at fault was in the car at the time of collision: Exhibit E. This supports the presence of Mrs Dib in the VW car at the time of the accident.

29. Mr Mansour confirmed his evidence in chief that he thought that a child was present but he could not recall 100%. He repeated that he thought there was a child present but he could not be 100% certain: T33.12. When it was put to him that he did not see a child at the accident, Mr Mansour said that he thought there was a child present but he could not recall to 100% certainty. Later, Mr Mansour said that he did not really remember this aspect but he thought there was a child present. He said he did not know if it was the child of the man and the lady. His best recollection was that the child was out of the car and was “walkable” but he did not recall the age of the child. Later, Mr Mansour said “I'm sure there was a child there” but then added that he was not 100% certain: T48-T49, especially at T49.18-.23. He said the child was a “younger child” but he could not recall whether it was a male or female. He noted that the area was a busy walkway and he could not be sure that the child was with the adults who had been in the car: T50.24. He denied that he was being deliberately vague in relation to the presence of a child and again stated: “I think there was a child there": T51.24.

30. Mr Mansour denied knowing that there was an issue of whether there was a child at the scene of the accident prior to giving evidence. He said he did not recall seeing a child seat in the car or looking around and seeing a child immediately after the collision. He said he did not look inside the car which collided with his car. Mr Mansour described the event as being “a small accident” which was not important in his life: T33.40. Mr Mansour said that he believed that he was present after the accident for about 10 minutes and then left the scene before the other driver and his car: T42.2.

31. Mr Mansour said that as far as he could recall he looked at the other driver's licence and was satisfied that he got his details and either recorded them on paper or took a phone photo of the other driver’s licence. He confirmed that he did not contact the police as he did not think it was necessary. He said he understood that if either car had to be towed away then the matter had to be reported to police. He based this understanding on what he was told by the tow truck driver. Mr Mansour could not recall for what period of the 10 minutes the tow truck driver was at the scene of the accident: T42.34.

32. Mr Mansour was asked questions about the damage to the motor car which had collided with his vehicle. He gave evidence that the front of the other car was damaged but he was not able to give detail of that damage.

33. Mr Mansour was asked whether the other car hit a power pole and he said that it did not. He said he would have recalled if it had hit a pole. He said that he could not recall the impact of the accident being severe: T40.50-T41.18.

34. Mr Mansour was then asked questions about communications with Mr Diab after the accident. He agreed that his evidence in chief was that as far as he could recall he had no further contact with Mr Diab after the accident. He said this was the case unless he needed to contact him in relation to the insurance claim. He said he might have had to talk to Mr Diab in relation to the claim. He suggested that he might have needed certain details for the claim which he did not obtain immediately after the accident. He was asked whether he contacted Mr Diab on the day after the accident. He said he did not recall any contact and could not be 100% certain but he may have. He said this was the first accident he had been involved in (he later corrected that as being the first accident for a number of years).

16. It was then put to Mr Mansour that he communicated with Mr Diab on the evening of the day of the accident. Mr Mansour said he could not recall this but was not 100% sure. It was then put to Mr Mansour that: at 6:25pm he rang Mr Diab; Mr Diab then sent two texts to him; he then texted Mr Diab at 6:29pm and Mr Diab sent a third text to him also at 6:29pm. Mr Mansour said he did not recall this. However, he agreed that the only reason he had to contact Mr Diab was to obtain further details for insurance purposes. He could not recall when he made the insurance claim. He stated that his recollection was that when he left the scene of the accident he had all the details he needed but again said that he may have needed further details for the insurance claim. Mr Mansour said that he could not recall any of the alleged phone calls or text messages: T45.17.

17. It was then put to Mr Mansour that at 3:56pm on 27 August 2014 that he received a telephone call from Mr Diab and at 3:57pm he sent a text to Mr Diab. Mr Mansour said he did not recall these contacts but agreed that he could have. He said he did not recall what he would have been communicating with Mr Diab about. He said he did not recall any other contact with Mr Diab: T47. The defendant later relied on call records establishing that there was some telephone and text contact between Mr Diab and Mr Mansour on the evening of the day of the accident and the next day: Exhibit 3 pages 212-214.

18. Mr Mansour was then asked further questions about his evidence in chief that he recalled a woman standing with Mr Diab at the accident. It was put to him that there was no woman at the accident. He said that he definitely recalled a woman being at the scene of the accident and standing next to Mr Diab: T47.38. (This evidence is supported by Exhibit E). He also gave evidence that he definitely recalled a collision: T47.42. Mr Mansour said that he viewed it as “a minor accident” and did not report it to police. When asked why he regarded the accident as minor, he said this was because his vehicle had been “bumped forward” only a small amount of damage had been caused to his car and he was able to drive away from the accident. He agreed that there was damage to his bumper bar but he could not recall his boot being pushed in and he thought that it was not.

19. Later evidence confirmed Mr Mansour’s oral evidence on this point. The defendant tendered records from the claim file of CGU which was Mr Mansour’s insurer: see Exhibit 8. These show:

1. In an email from Mr Mansour to an insurance broker he described the accident as “a minor car accident”;

2. The total payable to the repairer to repair Mr Mansour’s car was only $903.86. The only part replaced was the rear bumper bar. Painting was a significant part of the costs;

3. Photos of Mr Mansour’s car are included which indicate very minor damage to his car.

39. Mr Mansour appeared to the Court to be an honest and straightforward witness who was doing his best to give his evidence truthfully to the extent of his recollection. Mr Mansour did not have a strong recollection of all aspects of the accident because he regarded it as a fairly minor one with limited damage to his vehicle and because he could drive away from the scene of the accident. He did not recall his post-accident contact with Mr Diab.

40. Mr Mansour’s clear evidence was that he saw a woman stand by Mr Diab when their details were exchanged. He was considerably more vague about whether a child was also there. He believed a child was there, although he could not remember whether it was a boy or a girl. In relation to the evidence of a child being there, I think that his evidence is less reliable than his other evidence relating to the accident. Although there were minor differences between the evidence of Mr Mansour and later witnesses and he did not recall his post-accident contact with Mr Diab, I did not see these inconsistencies as significant or undermining Mr Mansour’s general reliability in relation to issues concerning the accident (see the defendant’s written submissions paragraphs 14-23).

Oral evidence of Mr Y Safi

41. The plaintiffs called in their cases Mr Yehia Safi to give evidence. Mr Safi is married to the sister of the defendant, Mr Bilal Diab.

42. Mr Safi gave evidence that in 2014 he lived at Warwick Farm. He said he knew Mr Diab because he was married to his sister. He recalled that in 2014 he went to a place at the Hume Highway at Warwick Farm as a result of a telephone conversation with Mr Diab.

43. Mr Safi said that Mr Diab contacted him and said that he had had an accident and asked him to come to the accident scene. He said the scene of the accident was on the Hume Highway near a major car yard. Mr Safi said that when he arrived at the scene of the accident he saw Mr Diab's car and a truck was loading it: T66.19. He could not recall the type of truck. He said Mr Diab's car was a Volkswagen. He said the people at the scene of the accident consisted of Mr Diab, his wife Mrs Dib, their daughter and the owner of the other car: T66.30. Mr Safi gave evidence in chief that he took the Diab family to Mr Diab’s house at Busby. It should be noted that Mr Safi’s evidence that the owner of the other car was still at the scene of the accident whilst the VW Beetle was being loaded onto the tow truck is inconsistent with Mr Mansour’s evidence.

44. Mr Safi was then cross-examined extensively in relation to his observations whilst at the scene of the accident and the circumstances which caused him to go to the scene of the accident.

45. Mr Safi said that he lived at Warwick Farm only a short distance away from the scene of the accident. He said he drove to the scene and the trip only took him a minute to one minute and a half: T67.39. He also stated that he left his home immediately after talking to Mr Diab on the phone: T67.45.

46. Mr Safi said that when he arrived, Mr Diab's car was on the side of the road near the footpath and was being loaded onto a truck: T68.7. After the loading of the truck was complete, he said that he took them to their home. Mr Safi also agreed that the owner of the other car apparently involved in the collision was there: T68.39.

47. Mr Safi gave evidence that he understood that Mr Diab was the owner of the Volkswagen. He said the basis for saying this was that the car was with him all the time and he was driving it: T69.45. He said he did not know if he in fact owned the car at the time. Mr Safi said that he spent “every night” with Mr Diab at the time as they used to play cards at a farm Mr Diab was renting at what he eventually said was XXX Avenue Austral: T70.13; T70.44. He was asked whether he remembered that Mr Diab had lots of cars stored at the farm and he said he did not recall this, whilst confirming that he knew Mr Diab very well at the time of the accident. He denied that he asked Mr Diab what he did for work: T71.19. He also denied that Mr Diab told him that he was buying cars which had been written off. He said he “did not interfere” with this: T71.24.

48. Mr Safi was asked questions about the other car involved in the accident which was not driven by Mr Diab. He confirmed that he saw the owner of the other car and that the other car was still there when he arrived. However, he could not recall the type of the car. He said that he was at the scene of the accident for somewhere between 10 minutes and half an hour: T71.48. During that time he did not notice the damage caused to the other car in the accident. In relation to Mr Diab's car, he said he only looked at it momentarily as it was raining. He said it appeared to be pushed in at the front: T75.4.

49. Mr Safi was asked whether he was sure that he saw Mrs Dib and her daughter at the scene of the accident and he confirmed that they were there: T75.11-.16. Mr Safi said he had no recollection of whether the traffic was heavy at the time merely that it was raining.

50. Mr Safi said that he then took Mr Diab, Mrs Dib and their daughter to the house at Busby. He could not recall how long it took him but he said the trip from his house to Mr Diab's house at Busby normally took between a quarter and half an hour if there was no traffic but up to 45 minutes if there was traffic: T76.39.

51. When asked when he attended the scene of the accident Mr Safi was vague and eventually said that he thought it was between 3:30pm and 4:30pm. He could not recall if it was during a weekday: T76.44.

52. It was then put to Mr Safi that the telephone records for Mr Diab's phone suggested that he telephoned Mr Safi at 5:51pm, not between 3:30pm and 4:30pm. Mr Safi said that all he could recall was that it was towards the time of sunset, it was raining and he believed it was daylight. He said that his evidence as to it being between 3:30pm and 4:30pm was an estimate: T77.

53. It was then put to Mr Safi that he called Mr Diab on his phone at 5:57pm. He said he did not remember this call: T77.42. The defendant tendered the telephone records of Mr Diab and Mr Safi which established that Mr Diab called Mr Safi at 5.51pm and Mr Safi telephoned Mr Diab at 5.57pm: Exhibit 3 pages 214-215.

54. Mr Safi is clearly close to the defendant, Mr Diab, as he is his brother-in-law and socialises with him. His clear evidence was that both Mrs Dib and her daughter Manessa were at the scene of the accident. His evidence was also that the owner of the other vehicle was there when he arrived and that Mr Diab’s car was in the process of being loaded onto a truck. As to a number of aspects of what occurred, Mr Safi appeared to have difficulties with his memory and he had only a basic recollection of the relevant events.

55. I will consider his evidence further below.

Oral evidence of Mrs Manal El Haj Dib

56. Oral evidence was given over several days by the plaintiff, Mrs Dib.

57. Mrs Dib gave evidence that she was born in June 1985 in Lebanon and resided in Lebanon until she migrated in July 2006 to Australia. Her evidence was that in November 2005 she married Bilal Diab, the defendant. Her evidence was that Mr Diab's surname was originally Hawchar and he changed his surname after he came to Australia with her. Mrs Dib said that they initially lived at another premises before moving into their house in Kilmorey Street in Busby in Sydney.

58. Mrs Dib said that from the time she moved into her house in October 2007 she attended the West Hoxton Medical Centre and saw Dr Hamad as her general practitioner: T80.27. Mrs Dib gave evidence that her daughter Manessa was born in November 2010 at Liverpool Hospital and that during the pregnancy she attended Liverpool Hospital for some issues. She also continued to see Dr Hamad as her general practitioner.

59. Mrs Dib gave evidence that she did not work prior to her daughter's birth and she did not work in employment after her daughter was born.

60. Mrs Dib said that she did not see doctors other than Dr Hamad: T81.18. She confirmed that when she saw him in consultations she told him the truth. She also confirmed that she took her daughter Manessa to see Dr Hamad when needed, although on one occasion she took her to Liverpool Hospital when she had asthma.

61. Mrs Dib denied that she had pain in her neck or back or left arm prior to the accident in August 2014: T81. Mrs Dib said that if she was prescribed medicine by Dr Hamad prior the accident she took the script to the local chemist near Dr Hamad’s surgery in West Hoxton. She said she did not attend Dr Hamad much in the period October 2007 to July 2014: T82.17.

62. Mrs Dib gave evidence that in 2012 she and Mr Diab had personal differences which led to a separation: T82. Following that, Mr Diab continued to live at the house, with the parties being separated under the one roof, although he sometimes lived at his mother's house. Mrs Dib confirmed that she remains separated: T82.50.

63. Mrs Dib said that she lived at her house at Busby with Mr Diab, her daughter and her son who was born in March 2012. Mr Diab comes and goes in living at the house but she could not give the dates. Mrs Dib said that other relatives spent time with her at her house including her sister and her mother, who both lived fairly close by: T84. She said that they visited her “from time to time”: T84.31.

64. Mrs Dib confirmed that the car in which she was travelling which was involved in the accident was a Volkswagen Beetle: T84. She said that she sometimes drove that car but could not recall when she first noticed it. She said that she never regarded the car as hers (T85.8) but that she saw her husband driving the car. She said she travelled in it as a passenger with Mr Diab driving. She said that she travelled in the car with him to take the children out for dinner, for lunch or to play. Sometimes both children were in the car and other times only one child was in the car. If a child was not in the car, that child was being looked after by her mother or mother-in-law: T85.36.

65. Mrs Dib gave evidence in relation to the car accident which she said occurred on 26 August 2014: T86-T91. She said that she could not recall whether it was a weekday or what day of the week the accident occurred. She said it happened between 5pm and 6pm. Mrs Dib said that she was sitting next to Mr Diab in the car and her daughter was also in the car: T86.47-T87.2. She said the accident occurred at Warwick Farm on the Hume Highway and a car yard could be seen from the passenger side window. Mrs Dib stated that they were travelling to get some food at KFC and it was raining. She said that they were proceeding forward and she felt her car “punch” the other car “in the back”. She said that she heard a “boom” to the car: T88.11. Mrs Dib said her head “moved forward” and she could not recall whether she knocked her head and suffered a cut in her forehead: T88.23; T89.49. She said she recalled being taken out of the car and being helped by others and sitting on the footpath. She could not recall what happened to her daughter at this time: T88.40. She said that her daughter was in a baby seat in the back of the car but could not recall if the daughter got out of the seat. When asked how long she was sitting on the footpath, Mrs Dib said that she sat there until her brother-in-law came to take them. She said that she was not sure how long this took but eventually he came and took them to her house at Busby.

66. Mrs Dib said that she did not see the other driver, did not see police attend but did see a tow truck at the scene. She said she did not speak to the tow truck driver: T89.34-T89.45. This evidence is partly inconsistent with Mr Mansour’s evidence. Mr Mansour states that the female adult passenger was standing next to them when he exchanged particulars with the other driver.

67. Mrs Dib said that night she noticed pain in her chest, shoulder, back and leg and that it was “hurting”: T90.6. She said that when she got home she took Panadol. She said that she did not notice any problems with her daughter on the day of the accident: T90.17.

68. Mrs Dib said the next day she felt “very bad” with pain in her back, shoulder, neck and chest and was “very sore”: T90.24. She said she attended the West Hoxton Medical Centre to see Dr Hamad two or three days after the accident.

69. Mrs Dib said that the day after the accident she did nothing around the house as she was sick. She said she asked her mother to come to her house and her mother looked after the children while she rested. She said that she was the same the second day after the accident: T91.16.

70. When Mrs Dib went to see Dr Hamad on the first occasion after the accident she could not recall whether she was alone or whether her sister was with her. She said Dr Hamad’s surgery was about 10 minutes away from her house and she could not recall whether she drove to it.

71. On her first visit to Dr Hamad after the accident, the plaintiff said that she told him she had pain in her head, chest, shoulder, back and left leg. She said that all her body was “broken”: T91.45. She said she told Dr Hamad that she had pain and that he examined her and gave her a prescription which she took to the chemist. She said she took the tablets prescribed for her.

72. She said that there was no change in how she felt (T92.40) and she continued to rest for the first week after the accident. She said she was helped in her domestic tasks by her husband, mother and sister: T92.48.

73. Mrs Dib confirmed that she went back to see Dr Hamad on 1 September 2014, about a week after the accident. She agreed that he referred her for x-rays and altered her prescription. Mrs Dib said that she attended at a place in Liverpool to have the x-rays.

74. Mrs Dib confirmed that she saw Dr Hamad on 5 September 2014 at which time the x-rays were discussed and she was prescribed further medicine for her pain.

75. Mrs Dib gave evidence that shortly after, she consulted a solicitor in relation to her rights concerning the accident. As a result, her solicitor assisted her in completing a Motor Accident Personal Injury Claim Form which she stated that she signed on 9 September 2014 (Exhibit A pages 1 to 11). Mrs Dib said the contents of that Claim Form were true. She also stated that she was sent by her solicitor to Dr Hamad to obtain a medical certificate to be attached to the Claim Form. She saw Dr Hamad, he examined her and he prescribed Panadeine Forte for her. She then stated that she returned the completed Claim Form to her solicitor (Exhibit A page 12).

76. Mrs Dib said that she understood the police were informed in relation to the accident but she was not sure by whom.

77. Mrs Dib was then taken by her senior counsel through various consultations from September 2014 with Dr Hamad. She agreed that Dr Hamad referred her for massage therapy which she understood was paid by Medicare. Dr Hamad also prescribed her various medicines for her pain including Endone.

78. At about this time, Mrs Dib said that Dr Hamad referred her to All Care Physiotherapy for physiotherapy services. Mrs Dib agreed that she first saw the physiotherapist at All Care Physiotherapy on 23 October 2014 (Exhibit A page 90). She stated that she told the physiotherapist what had happened to her and the body parts that were giving her pain. Mrs Dib also said that she told the physiotherapist about her limitations at home and in relation to her children.

79. Mrs Dib gave evidence that after the accident she was helped at home by her sister and her mother: T101.50. Her evidence was that they assisted her with everything around the house including cleaning and cooking. Prior to the accident she gave evidence that she did all domestic duties herself and she was not assisted at all by her sister or her mother. After the accident, her sister and her mother assisted her with cleaning the house, vacuuming, mopping, washing dishes, the laundry and cooking: T102.15.

80. The plaintiff gave the following evidence about the time spent by her prior to the accident in undertaking domestic duties:

1. The main meal of the day, which was Lebanese food, was prepared commencing at about 3pm. The plaintiff said that she spent about four hours work per week preparing the main evening meal: T103.6;

2. The plaintiff said that prior to the accident she spent about half an hour per day cleaning up the dishes in relation to the evening meal: T103.19;

3. The plaintiff said that she spent about three to four hours per week washing: T103.41;

4. The plaintiff said that prior to the accident she spent about two to four hours per week shopping and carrying the items home: T104.17;

5. The plaintiff gave evidence that prior to the accident she spent about four to five hours per week cleaning: T104.28;

6. At the time of the accident the plaintiff said her daughter was nearly four and her son was nearly three. She gave evidence she spent the substantial proportion of each day looking after her children: T105.6.

81. The plaintiff was then asked questions in relation to the period from the date of the accident, 26 August 2014, until 23 October 2014 when she attended her first physiotherapist appointment. In that period, the plaintiff stated that either her mother or her sister did all of the domestic tasks around the house as she was suffering from considerable pain: T105.15. She said she saw the physiotherapist on a number of occasions and obtained treatment including massaging but she stated the treatment did not assist her at all. The plaintiff gave evidence during this time that she continued to see Dr Hamad and take the medications which he prescribed. She said that the medications did not relieve pain or help her all the time.

81. The plaintiff gave evidence that in February 2015 Dr Hamad referred her to have further tests and she had a CT scan of the neck and back at Liverpool.

82. Mrs Dib’s evidence was that in the period from October 2014 to February 2015 her condition became worse: T107.2. She said she did not feel any better despite the physiotherapy treatment, taking the medicine prescribed and the radiological investigations. She said her pain was “killing me”: T107.9.

83. The plaintiff said that in this period her sister and mother continued to assist her with the children and the housework: T107.

84. In answer to questions from the court, the plaintiff said that her sister was married and had seven children aged between nine and 22 years. The plaintiff said that her sister came around for some time every day to her house to help her: T108.2. Her sister also sent some of her older children to help and sometimes her mother assisted. Every day someone came to help her. Her nieces and nephews stayed all day and sometimes her mother would come and do the domestic duties such as cooking, washing and cleaning and then go. The plaintiff said that the same amount of time was spent on domestic duties by her relatives in the period from October 2014 to February 2015 as had been provided in the earlier period immediately after the accident: T108.23. Mrs Dib claimed that she had no pain and had made no claims in relation to injuries before the accident.

85. Mrs Dib gave evidence that after the CT scan, Dr Hamad referred her for an MRI which she had at Liverpool. At about this time the plaintiff said she was prescribed Lovan by Dr Hamad for depression: T109.27. The plaintiff said she was depressed because of the pain from which she was suffering: T109.30. She said she was angry, could not put up with herself, was edgy and was crying. She said before the accident she did not suffer from any of these problems. She said she sometimes discussed her problems with her sister.

86. At about this time Dr Hamad referred Mrs Dib to Dr Mitri who assisted her with her depression. She said that she saw him on five or six occasions but stopped seeing him because her condition remained the same: T110.26. At this time the plaintiff said her pain was getting worse and the medicine was not giving her relief: T110.36.

87. Soon after, Dr Hamad prescribed her stronger medication and referred her for an injection to her shoulder: T111. At this time the plaintiff said she took her medicine and continued to take Dr Hamad's advice to rest, have deep heat massage and rub in an ointment.

88. The plaintiff gave evidence that she began to attend medico-legal appointments in 2015 in relation to the proceedings. She said she attended Dr John Davis in April 2015 where she answered all questions to him truthfully. She said she also saw an occupational therapist, Ms Lethbridge, at this time who made an assessment of her and asked many questions. It is noted that Ms Lethbridge’s 4 May 2015 report states in paragraph 2.1 that only the plaintiff, Mrs Dib, participated in the assessment. The plaintiff is recorded as telling Ms Lethbridge that after the accident her sister came to her house each day to help her with domestic tasks such as cooking and the laundry: paragraph 5.3 pages 5 and 6; paragraph 7.2.3 (this evidence should be contrasted with the sister’s later evidence). The plaintiff also gave evidence that in October 2015 she saw the MAS Assessor, Dr Gibson. It was noted that during this stage of her evidence the plaintiff sought an adjournment to put a soft neck collar on which she stated she needed when the pain was severe.

89. The plaintiff was then asked questions in relation to the period from when the CT scan occurred in February 2015 until October 2015. Mrs Dib said that in that eight month period the pain became worse and was increasing: T114.30. She also gave evidence that her depression was worsening. The plaintiff indicated that Dr Hamad increased her dosages of medicine at this time. The plaintiff said that she also received the same domestic assistance at home from her sister and mother in this period as she had received previously: T115.33. She said she gave accurate information to the occupational therapist Ms Lethbridge in relation to the time during which assistance was provided: T115.38.

90. In January 2016, Mrs Dib first saw Dr Hamad in relation to problems in her knees. This was some 17 months after the accident. At this time Dr Hamad, according to Mrs Dib, recommended Voltaren tablets to assist her with the pain, as well as other medication: T116.29.

91. The plaintiff gave evidence that her condition became worse in 2016 as the pain had increased and was constant: T118.2. Mrs Dib gave evidence that despite this she started doing light work around the house: T118.12. This included preparing breakfast for the children, preparing a cup of coffee, warming up food in the microwave and cleaning the benchtop if it was at her level. The plaintiff said that she also undertook some shopping but could not lift heavy items. She said her children were now at school and they are able to look after themselves more than before.

92. The plaintiff said that she continued to receive assistance from her family members in relation to the children. Either her husband or her mother assisted with these tasks: T119.

93. The plaintiff gave evidence that she drove the car in the Liverpool area but had a limit of about half an hour before the pain prevented her continuing. She said she sometimes drove every day but only drove when it was needed. She said she often drove her children around.

94. Mrs Dib said that she attended Dr Hamad when required and often this was twice per month. She said she followed his advice including taking any tablets which he prescribed. The plaintiff said that Dr Hamad referred her to Dr Darwiche, a specialist for back pain, who she had seen three or four times. He had also referred her to Dr Jirgais, a psychiatrist, who she had seen about two times. She said that Medicare paid for all of her various expenses in relation to medical appointments and medicines. She also said that she did not pay for any of the physiotherapy services provided: T121.

95. The plaintiff said she had last seen Dr Davis and Ms Lethbridge in 2017.

96. Mrs Dib indicated that if she was provided with money she would pay someone to provide her with domestic assistance: T122.38. When asked why she would not keep using her mother and her sister, she indicated that her mother was elderly and her sister may not continue to assist her in the future. She said that she had not paid either her mother or her sister and that her mother was about 65 years old: T123.

97. The plaintiff was then asked questions in relation to her daughter Manessa. The plaintiff confirmed that Manessa was in the car at the time of the accident: T123.18. She said that she did not notice anything in relation to Manessa on the night of the accident. However, on the next day she did notice something. She said that Manessa started crying and indicating that she was feeling pain in her leg and her neck: T123.29. The plaintiff said that soon after, Mr Diab took Manessa to Liverpool Hospital. She said she did not recall whether an ambulance was called but Manessa went with her father and Mrs Dib did not go.

98. In addition, Mrs Dib gave evidence that she took Manessa to see Dr Hamad in relation to her problems. Mrs Dib could not recall the first time that she took Manessa to see Dr Hamad in relation to symptoms arising from the accident. However, she confirmed that Dr Hamad asked questions in relation to Manessa which Mrs Dib responded to truthfully. Mrs Dib said that Dr Hamad prescribed Panadol and Nurofen for the pain and also deep heat massage of Manessa by Mrs Dib: T124.31.

99. Mrs Dib was asked in relation to the differences between Manessa before and after the accident. Mrs Dib said that after the accident Manessa was crying all the time at night and complaining about pain. She said she stopped playing with the other children and constantly told her that her back and neck hurt her. She also noted that Manessa did not have control in relation to urinating and that she would urinate while standing during the day and also at night. She said she would wake up petrified and crying. Mrs Dib said that Manessa continued to complain about her neck, back and in relation to headaches. She said she continued to wake up at night and would come to Mrs Dib scared with a headache and would sleep in her bed with her: T125.6.

100. Mrs Dib said that Manessa was also receiving treatment for asthma and had a spray for that. However, she continued to take Panadol and Nurofen for pain every day: T126.26. She said she took Manessa to Dr Hamad whenever it was needed and sometimes that was once a month.

101. Mrs Dib confirmed that she completed a Personal Injury Claim Form for Manessa and told the truth in that Claim Form. Mrs Dib also confirmed that she had taken Manessa to see Dr Gertler, the psychiatrist. She gave evidence that Dr Gertler asked her questions and that she answered them truthfully. Mrs Dib said that all of the medical costs in relation to Manessa had been paid by Medicare.

102. Mr Diab, Mrs Dib's husband, was self-represented until 16 May 2018. He did not ask any questions in cross-examination of Mrs Dib: T129.13.

103. Mrs Dib was then subject to a very lengthy cross-examination by counsel then appearing for the second defendant (who later appeared for Mr Diab). Mrs Dib confirmed in cross-examination that all evidence she had given in chief was the truth and everything she had told to the various doctors she had seen was the truth.

104. Mrs Dib was asked about her evidence in chief that, other than attending doctors at the West Hoxton Medical Centre and Liverpool Hospital, she had not attended other doctors: see T81.18. Mrs Dib confirmed this was the truth: T130.28. However, upon further questioning, Mrs Dib agreed that she had seen other doctors, although these were not connected to the accident. She said she had not thought of the other doctors when she gave the evidence: T130.1.

105. Mrs Dib confirmed that she received benefits from Centrelink. It was put to her that in 2009 she had seen a Dr Zaki who had provided her with a medical certificate for a musculoskeletal disorder. The plaintiff denied this: T132.12. However, it appears confirmed by the document dated October 2009 of the Department of Human Services at page 184 of the defendant’s bundle. The plaintiff confirmed that she saw Dr Zaki on occasions prior to the accident when she needed to: T131.49.

106. Mrs Dib was then asked questions in relation to her present marital status. She said that while she was still married, the relationship with Mr Diab was “not good”: T135.11. She indicated that she was still living in the same house as Mr Diab but not as husband and wife. She agreed that she was presently in receipt of a single parent’s pension as she was separated from Mr Diab: T135.36. The plaintiff was asked how long she had been receiving the benefit but could not state the period. She had given evidence in chief that she had been separated since 2012: T82.49. The evidence suggests that she has been receiving the single parenting payment since October 2012, apart from a three month period where it was suspended in 2013: defendant’s bundle page 180.

107. Mrs Dib was then asked questions about the Volkswagen car driven by Mr Diab which she asserted was involved in the accident. She was taken to her evidence in chief where she said that she sometimes drove the car but there was not any time when she regarded it as her car: T84.38 and T85.8. The plaintiff confirmed that at no time did she regard the Volkswagen as her car: T143.7.

108. The plaintiff was then asked questions as to whether she was the registered owner of the Volkswagen car on more than one occasion. The plaintiff, in answer to this and numerous related questions, said that she did not remember but it was possible. Mrs Dib gave evidence that she could not recall buying the Volkswagen on 21 July 2010 or selling it on 30 January 2011. She said she could also not recall when she first noticed the Volkswagen or when it was bought. However, Mrs Dib said that she used it sometimes, as did Mr Diab. Mrs Dib said it was possible that she bought the car in July 2010 and sold it in January 2011.

109. It was then put to Mrs Dib that she bought the car back from her mother on 16 May 2012. She said she did not recall this but that was possible. Mrs Dib was asked whether she recalled being involved in an accident in the Volkswagen Beetle in 2012 and she said it was “possible” but she had no memory of it: T145.18. She also stated that she had no memory of lodging a Claim Form in relation to damage to the Volkswagen suffered in an accident in 2012 or seeing an insurance investigator in 2012 for an interview in relation to the claim. She denied that she was being deliberately evasive in her answers on these matters. She said she could not recall saying to an investigator that she had bought the Volkswagen from her mother for $18,000: see T146.44.

110. Mrs Dib was then asked questions about a family car which she and her husband had at the time of the accident which was a blue Mazda CX7. The plaintiff agreed that they had this car but could not recall how long they had it prior to the accident. The plaintiff accepted that the car was registered in Queensland (T152.11) as it had been purchased there but the registration had not been transferred to New South Wales to her address at Busby. The plaintiff could give no reason why this transfer had not occurred: T153.28. She said the address in Queensland was her brother-in-law's address.

111. Mrs Dib gave evidence that both her two children had safety seats in the Mazda prior to the accident. She said that the seats were kept in the Mazda but they could be moved to the Volkswagen if that was used. She accepted that the Mazda was a much bigger vehicle than the Volkswagen. The plaintiff could not assist as to why they had decided to change to driving the Volkswagen for the trip which involved the accident. She simply said that she got into the car which was being used by her husband to transport them to KFC and did not look at the car. Mrs Dib could not recall whether it was a last minute decision to go to KFC for dinner. At the time her son was being looked after by her mother-in-law at their house at Busby: see T154.5.

112. Mrs Dib was then asked questions about her evidence in chief where she said that she could remember “a boom” to the car in the accident: T88.11. Mrs Dib had said that her head had moved forward but she could not remember whether she suffered a cut to her forehead: T88.16–.26. At one stage Mrs Dib said that maybe she had suffered a cut to her forehead: T158.49. She stated that she hit her head on the dashboard of the car (T159.2), although she was wearing a seatbelt at the time and the seatbelt restrained her in the seat. This matter will be considered further below.

113. Mrs Dib was taken to the report of Dr Gibson which stated: “She [Mrs Dib] said there was some bleeding from her forehead” (Exhibit A page 77). She was also taken to that part of Dr Gibson's report which was as follows: “She said that she had a lot of bruising over her left shoulder”. Mrs Dib said that she told the truth to Dr Gibson. She said she did not remember whether she had bruising to her left shoulder in the accident: T160.22-.35. She could also not recall whether she told Dr Hamad that she had bruising to her shoulder. It is noted that there is no reference in Dr Hamad's notes for 28 August 2014 to the plaintiff saying she hit her head or cut her head or had bruising to her left shoulder (Exhibit A page 114). The plaintiff said that she could not recall whether she told Dr Hamad that she had shoulder bruising in her first consultations. The plaintiff merely said that it was possible that she had bruising and told this to Dr Gibson: T162.2.

114. Although also initially denying that she recalled she told Dr Gibson that she was bleeding from the forehead (T162.17), the plaintiff later said that if it was written on Dr Gibson’s report that is what occurred: T162.30. Later in her evidence, the plaintiff said she did say to Dr Gibson that she suffered a head injury in the accident: T163.5; T163.48. The plaintiff said she could not recall whether she told Dr Hamad in her first consultation that she had a cut to the forehead: T162.47.

115. I find Mrs Dib’s evidence to be unsatisfactory on this issue. I think it is highly likely that she would be aware and remember whether she suffered a cut in the accident to her forehead: cf T164.2.

116. The plaintiff was then asked questions in relation to the first time that she noticed pain to herself or to Manessa. She confirmed that in relation to herself, she first noticed pain on the night of the accident: T114.12. In relation to Manessa, she gave evidence that Manessa complained of pain either the following day after the accident or the day after that: T164.18. It was suggested to the plaintiff, Mrs Dib, that the police were told that it was only three days after the accident that she and Manessa felt pain to their neck and shoulder (Exhibit A page 14). Mrs Dib said that she was not aware that was what they were told and said she suffered pain on the night of the accident: T165.4-.11.

117. Mrs Dib was asked whether she told Dr Hamad on 28 August 2014 that Manessa was complaining of pain. Mrs Dib said “Maybe, yes” but was not certain: T165.23. She gave evidence that Manessa was later taken to Liverpool Hospital but the evidence shows this was not until 2 September 2014 (Exhibit B page 68). Mrs Dib could not answer why she did not take Manessa to Dr Hamad or to Liverpool Hospital if she was complaining of pain one or two days after the accident and waited until several days after the accident: T165.28-T166. It was also noted that Mrs Dib took Manessa to see Dr Hamad on 1 September 2014 shortly after the accident but his notes record that the attendance occurred because Manessa was suffering from a cold. The notes do not record any pain allegedly arising from the accident (Exhibit B page 42). Mrs Dib said she could not recall this: T166.47. Mrs Dib claimed that she did tell Dr Hamad about Manessa's complaints of pain.

118. Mrs Dib was then asked questions by counsel for the defendant in relation to Manessa’s alleged bed wetting. Mrs Dib confirmed that she had told doctors that Manessa had problems with wetting both during the night and in daytime. Mrs Dib confirmed that prior to the accident Manessa was toilet trained. However, she agreed that prior to the accident there were occasions on which Manessa wet the bed.

119. Mrs Dib was asked when the first bed wetting problem occurred after the accident. The plaintiff said that she could not recall this but stated that after the accident Manessa wet herself both during the day and at nights: T171.27. When asked to be more specific as to timing after the accident, Mrs Dib said that she could not recall but said that she took Manessa to Dr Hamad when the problem arose.

120. Counsel for the defendant referred Mrs Dib to the Claim Form relating to Manessa which she stated in chief that she filled out and lodged on her behalf (Exhibit B page one). Mrs Dib was taken to the part of the Claim Form where the injuries are referred to and it was pointed out to her that the Claim Form did not report any problems with Manessa in relation to bed wetting. She agreed that if at that time Manessa had problems with bed wetting that she would have told her solicitor: T172.5.

121. Mrs Dib also agreed that she saw Dr Hamad with Manessa in relation to her problems after the accident. This included raising the problems of wetting in relation to Manessa with Dr Hamad: T172.13. When asked how long after the problem had first been identified that she took Manessa to Dr Hamad, Mrs Dib said that as soon as she saw a problem with wetting she took Manessa to Dr Hamad: T172.17. It was then pointed out to Mrs Dib that the first record of bed wetting in the notes of Dr Hamad was on 10 March 2015 (Exhibit B page 40: “gets episodes of incontinence”). Mrs Dib said that the records of Dr Hamad would be correct and that she accepted that within days of noticing the problem with Manessa in relation to bedwetting that she would have taken her to see Dr Hamad. When it was suggested to Mrs Dib that it was more than six months after the accident before a problem for Manessa in relation to bed wetting first appeared, she said that it may be that was the case and that would appear to be correct: T172.44.

81. It was put to Mrs Dib that the bedwetting problem with Manessa only lasted a short period of time. She denied that and said that the problem was continuing to the present. Mrs Dib agreed that when she saw Dr Davis in April 2015 she told him what problems Manessa was experiencing arising from the accident. There was then cross-examination about that part of Dr Davis' report which provides as follows: “Her mother also informed me that although toilet training had been completed prior to the accident Manessa did begin bed-wetting, albeit this has subsequently ceased”. Mrs Dib said that she did not remember telling Dr Davis that, while agreeing that she told the doctors the truth. It was put to Mrs Dib that as at April 2015 bed wetting was no longer a problem for Manessa. She disagreed with that and said she did not remember telling Dr Davis that: T172.42.

82. Mrs Dib was then asked whether she stated to Dr Davis that Manessa was “somewhat withdrawn for a period” (Exhibit B page 19). Mrs Dib said that Manessa was quieter after the accident and loved sitting by herself. When asked whether she told Dr Davis that being withdrawn started and stopped, she said that she could not remember telling him that: T174.8.

83. Mrs Dib was asked whether she told Dr Davis that on the day after the accident Manessa complained to her of having a sore neck. She replied, “Maybe” but then said that she could not remember. Dr Davis states in his history in his 29 April 2015 report as follows: “The next day Manessa told her mother that she had a sore neck” (Exhibit B page 19). Mrs Dib was then asked whether the first time Manessa received any treatment after the accident was when she was taken on 2 September 2014 to Liverpool Hospital. She stated that Manessa was not taken by her but was taken by her father, Mr Diab. Mrs Dib was asked whether the first time any treatment was given to Manessa in relation to what occurred in the accident was on 2 September 2014, a week after the accident. Mrs Dib said that if that was what was “in the papers” she agreed with it: T174.29.

84. Mrs Dib was asked whether when she took Manessa in relation to a cold to see Dr Hamad on 1 September 2014 she made any mention of any problems for Manessa arising from the accident and Mrs Dib said that she could not recall (Exhibit B page 42). However, Mrs Dib agreed that if Manessa had been complaining of a sore neck the day after the accident she would have taken her to see Dr Hamad before 2 September 2014: T174.40.

85. It was put to Mrs Dib that she told Dr Davis in April 2014 that approximately six weeks after the accident Manessa told her that her back was sore. Mrs Dib said that she could not recall telling him that. As to whether that was in fact the case, Mrs Dib said that she did not recall it and could not remember whether it could be right. Mrs Dib was asked whether she told Dr Davis that Manessa continued to complain of neck ache and headaches every day and she said that if it was written in his report then she did: T175.7.

86. Mrs Dib confirmed that there was still bedwetting by Manessa at present. Mrs Dib was asked whether she had requested Dr Hamad to refer her to a specialist and she said that an x-ray had been undertaken of Manessa's bladder and Dr Hamad said that he would refer her to a specialist if she needs one. Mrs Dib said she had not taken the x-ray of Manessa's bladder to Dr Hamad. When it was pointed out that this was three years after the accident Mrs Dib said that Dr Hamad said that medicine should be tried first. She agreed that Manessa had still not seen any specialist in relation to her bed wetting and bladder: T176.1. She agreed it was still a problem and did not recall telling Dr Davis in April 2015 that the problem had stopped.

87. Mrs Dib was then asked questions about the history which she provided to Dr Gertler for the purposes of his report. She agreed that she saw Dr Gertler in January 2018 and told him the truth. This included the truth in relation to the accident. Mrs Dib was asked whether she told Dr Gertler that in the accident the car had collided “with the car in front and also collided with a light pole”. Mrs Dib said it was “possible”: T177.20. When asked whether it was true that the car she was in had hit a light pole in the accident Mrs Dib said that she could not recall: T177.36. She said she could not recall telling Dr Gertler that the car had hit a light pole in the course of the accident, even though it was only two months previously that she saw Dr Gertler: T178.3.

88. Mrs Dib was then asked questions about what occurred when she went to see Dr Apler, psychiatrist, for the purposes of a MAS assessment. She agreed that she saw a Dr Apler in February 2016: T184.8. It was put to her that she told Dr Apler that the car in which she was travelling collided with the car in front “and a light pole”. Mrs Dib said she did not recall telling him that: T184.16.

89. Mrs Dib was then asked questions about the times she attended with Manessa to see Dr Rikard-Bell, psychiatrist. Mrs Dib was asked whether she told Dr Rikard-Bell in November 2015 that after the accident Manessa began to wet herself. Mrs Dib replied “maybe, yes”: T190.4. She then said that after the accident Manessa was wetting herself. When asked whether Manessa wet herself at the scene of the accident Mrs Dib said she could not recall: T190.13.

90. Mrs Dib confirmed that she told Dr Rikard-Bell that Manessa does not sleep as well since the accident. She said that Manessa's sleeping has been interrupted until the present and certainly since the accident. She also said that Manessa has been wetting not only the bed but also wetting her pants during the day and that this was still happening and had occurred since the accident: T190. However, Mrs Dib could not recall that during the course of the interview with Dr Rikard-Bell that Manessa requested to go to the toilet and she took her without any problems or any indication that she was wetting (Dr Rikard-Bell report dated 30 November 2015 page 6).

91. Mrs Dib was asked whether she told Dr Apler in February 2016 that after the accident Manessa still wets herself “three to four times a day at school”. Mrs Dib said that she could not recall saying this: T192.27. When asked whether that was the case in February 2016 that Manessa wet herself three to four times per day at school she said that was not the case.

92. Mrs Dib agreed that Manessa went to preschool and then to primary school. She agreed that Manessa had disturbed nights and nightmares since the accident, but not on a daily basis: T193.19. She could not recall how often the nightmares occurred. She stated that Manessa still had difficulty sleeping and would wake crying and came to her saying she had a bad dream. She also has woken up since the accident complaining of pain in her legs: T193.38.

93. Mrs Dib was then asked a number of questions in relation to an application which was completed in 2015 for the purposes of her Manessa applying to be a student at Sadleir Public School. She agreed that in 2015 she needed to complete an application for Manessa to attend Sadleir Public School. When taken to the application (Exhibit 3, defendant’s bundle at pages 15-21), Mrs Dib confirmed that it was her signature on pages 15 and 21 of the document. She also confirmed that the date was completed by her on page 15, but she was not sure whether she completed the date on page 21: T194-196.

94. Cross-examination then focused on the “Additional Information for Preschool Enrolment” document. Mrs Dib gave evidence that she recalled completing a preschool application and providing information and signing the document at the end, but stated that she answered questions asked of her and did not complete the form herself by writing in it.

95. Mrs Dib was taken to question 10 in the form and confirmed that Manessa had asthma. She was then taken to question 11 in the form which she completed as follows: “Does your child regularly take any medication? If yes, which medication and what for? Puffer – but not regularly”. Mrs Dib said that this was true as Manessa only needed her asthma puffer when required. Mrs Dib was then taken to her evidence that in 2015 Manessa was taking Nurofen and Panadol for her pain (which she said that Manessa continues to take). She was asked why she did not inform the preschool in the form of the additional medication. Mrs Dib said that was because the medication was given to Manessa before and after she attended school: T198.21.

96. She was then taken to question 16 in the form and its answer which was to the following effect: “Does s/he usually sleep through the night? Yes”. It was put to Mrs Dib that that answer was inconsistent with her evidence and she said that she did not tell the preschool the full story. In response to the question that if she had been truthful she would have answered differently, Mrs Dib said that she did not want people to know all information about her daughter: T199.8. In response to the suggestion that she would have wanted carers to have proper information about Manessa's problems, Mrs Dib said that they did not care for her at night time. Mrs Dib said that the preschool people did not need to know this information. When it was suggested that the answer was untrue on her evidence, Mrs Dib said that she did not deny what she said. When it was suggested that the answer was untruthful Mrs Dib said “I see … that it is truthful”: T199.46.

97. Mrs Dib was then taken to the question and answer at 22 in the form which was as follows: “Does your child require assistance with toileting? No”. Mrs Dib accepted that information as to toileting was relevant to the care of Manessa: T200.9. In answer to the suggestion that if Manessa was wetting during the day that was very relevant to preschool, Mrs Dib responded that someone was helping her filling in the form, apparently to rebut the suggestion that she had said this: T200.14. Mrs Dib said she could not recall being specifically asked in relation to Manessa's toileting but said she did not complete this part of the form and could not recall it. Mrs Dib agreed that the question in question 22 in relation to Manessa requiring assistance for toileting was asked of her and she said yes she does wet herself during the day and I will send extra clothes: T201.10. When it was put to her that she was making this up, Mrs Dib denied it.

98. I find Mrs Dib's evidence on this issue to be unlikely. In my view, from the process she outlined that she was asked questions and gave answers, it is likely that Mrs Dib was asked the question at 22 and she provided the answer which was recorded which is inconsistent with her evidence in relation to Manessa's wetting. I think it is unlikely that if she had indicated Manessa’s alleged problem it would have not have been recorded on the form.

99. When asked by counsel for the defendant why she did not include in the form that Manessa had problems with her neck, back, with headaches and with wetting, Mrs Dib replied that it was not her who filled out the form and she cannot fill in forms in foreign languages: T201.49. I reject that evidence. Clearly the form was seeking, in the questions asked, all information relevant to Manessa, including in relation to her medication, sleeping, toileting and medical history. Mrs Dib said that she did not want to share with the preschool her daughter's problems. However, someone was helping her fill in the form and this medical history was highly relevant to her daughter’s welfare, particularly her alleged physical problems.

100. Mrs Dib accepted that she did not tell the preschool in the Preschool Waiting List Application form (Exhibit 3, defendant’s bundle pages 19-21) the details in relation to Manessa’s alleged problems with her neck and back and her other physical problems. This was despite the fact that she agreed that she wanted the best care for Manessa at preschool. Mrs Dib said that Manessa had the medical problems and she did not want the world to know of them. Mrs Dib said that they were problems that no-one could help Manessa with and that is why she did not tell the preschool of the problems: T202, T205. Mrs Dib accepted that she had given evidence (T126.26) that Manessa was given pain relief medication every day. It was put to her that if that evidence was correct she would have told the pre-school. Mrs Dib said that Manessa was given her medication before and after going to the preschool. She also said that the preschool could ring her as they had her telephone number and ask her to collect Manessa if necessary: T206.38.

101. Mrs Dib was asked some questions about an Application to enrol in a New South Wales Government School which she agreed was signed by her and her husband in March 2015 (Exhibit 3, defendant’s bundle pages 23-29). Mrs Dib was taken to page 9 of the form (Exhibit 3, defendant’s bundle page 26) where the form requested the person completing it to indicate if a student has any physical disabilities or other health issues. It was noted that asthma had been indicated. It was put to Mrs Dib that she did not nominate any other medical difficulties which Manessa had in that document. Mrs Dib said that she agreed with this and she did not want anyone to know anything about her daughter. She thought that asthma was a straightforward condition and Manessa needed her puffer. However, she said that if she told of other conditions and Manessa found out, as she was a sensitive person she would not go to school as a result. It was put to Mrs Dib that the school needed to know about Manessa's wetting. She disagreed with this and said that her daughter was very sensitive and if she knew the matter had been disclosed she would not go to school. Mrs Dib then claimed that she told the teacher but asked for the matter to be kept between the two of them.

102. It was then put to Mrs Dib that in relation to Manessa’s alleged neck and back pain the school needed to know of it because of physical activities which children would be involved in during the day. Mrs Dib said that she did not know why she did not tell the school in relation to Manessa's physical limitations: T208.3. However, Mrs Dib emphasised again that she did not want to tell people in relation to Manessa's problems with wetting herself. She rejected the proposition that she did not tell the school in relation to Manessa's alleged neck and back pain as Manessa was not suffering from such pain at all: T208.9.

103. Mrs Dib was then asked questions in relation to an Application to enrol in a New South Wales Government School which was signed by her (Exhibit 3, defendant’s bundle pages 31-43). Mrs Dib agreed that the signature at page 43 was her signature and also agreed that the date indicated, 1 June 1986, was clearly an error. It is noted that the date at page 44, where the principal signed the form, was 2 February 2016. Mrs Dib said that Manessa was enrolled in kindergarten at Sadleir Public School in 2016.

104. Mrs Dib was taken to the form which did not indicate any physical condition at all from which Manessa was suffering at the time. Mrs Dib said that she did not fill in the form for Manessa's kindergarten application but accepted that it was her signature on the form. It is also noted that asthma is disclosed as a medical condition on page 11 of the form (defendant’s bundle page 41). She agreed that there was no disclosure in the form by her of Manessa's wetting. She also accepted that she did not refer in the form to Manessa's problems with her back, neck and other physical pain. She agreed that at this time she was still giving Panadol and Nurofen to Manessa when she needed it, which was every day: see also T126.26. Mrs Dib accepted that physical activities at the school may have affected Manessa's neck and back: T209.50. When it was put to Mrs Dib that Manessa did not need to know that she had disclosed the conditions to the school, she said that Manessa was “very smart” and would discover that she had told them in relation to her problems and would not go to school. Mrs Dib also said that at this time Manessa was depressed and did not want to go to school and said that she did not have any friends to play with. This was why she moved her to XXX Public School: T210.21.

105. It was put to Mrs Dib that she told Dr Gertler that there were no significant problems with Manessa and her ability to cope with the school situation (Exhibit B page 25). Mrs Dib said that she did not recall telling Dr Gertler that. She said that she did move Manessa from Sadleir Public School to XXX Public School where she was happier. Despite the suggestion in Dr Rikard-Bell’s second report dated 18 September 2017 that Manessa was getting bullied at Sadleir Public School and so the parents thought it was better to move her, Mrs Dib said she was not bullied at school but had no friends and other children did not play with her, which led to her being sad and depressed. Manessa had been saying that she did not want to go to school: T212. This was the reason she was moved from Sadleir to XXX School: T212.18.

106. Mrs Dib was then asked some questions about an Application for Non-Local Primary School Enrolment which she signed on 16 December 2016 (Exhibit 3, defendant’s bundle pages 66-70). Mrs Dib said in a Statutory Declaration that the move was wanted as “by the end of 2016 I will be moving into my mother’s resident [sic], located at X D’Inzeo Place, Hinchinbrook”. It was put to Mrs Dib that this reason was untrue. First, Mrs Dib said that it was not her writing on the Statutory Declaration and she could not recognise it but accepted that it may be her brother’s writing: T214.6. Secondly, Mrs Dib said that that was her intention at the time. At that stage her brother Ali was living with her mother in Hinchinbrook. At the end of 2016 she intended to move into her mother’s residence with her children because of problems between her and Mr Diab. She said she intended to move there and not to return. Mrs Dib gave evidence that she stayed a month and then went back to her house at Busby. She claimed that she went back because she understood that Mr Diab would be moving out of the house and she would stay. She did not recall when she moved out. It was then put to Mrs Dib that in her earlier evidence she had not mentioned the fact that she was moving to her mother's house as the reason for changing Manessa’s schools from Sadleir to XXX, only that she had no friends and was depressed because of that: see T212.18. Mrs Dib initially said that she did not understand the question and then said that this was part of her private life and that there were certain things that she did not wish to have disclosed publicly: T216.49. Her answer was difficult to accept in circumstances where Mrs Dib had given evidence in chief about her separation and the differences which she had with Mr Diab: T82.30-T83.12.

107. Mrs Dib was then asked numerous questions by counsel for the defendant in relation to statements she had made to doctors and an occupational therapist who had provided a report for the purposes of the proceedings, concerning the problems that she had allegedly experienced physically in undertaking tasks since the accident. These matters included:

1. Evidence given in chief that since the accident her condition had become worse;

2. In the period of two months after the accident that someone did all of her domestic duties, including housework, shopping, and looking after the children due to Mrs Dib’s pain: T105.11-.21 (although Mrs Dib answered “maybe” to the suggestion that she did no housework, shopping and looking after her children in the first two months after the accident, when asked by counsel for the defendant: T218.15);

3. After February 2015, Mrs Dib agreed that she gave evidence in chief that her position was getting worse: T106-107. At that time the plaintiff said that she was not doing anything at home and was not looking after her children: T107.15-.25. Mrs Dib said her sister or her mother were coming over every day to assist her;

388. It is clear that the defendant should have driven carefully and should have taken all necessary steps to stop his vehicle in all the circumstances. It is not suggested that the collision was unavoidable, for example by Mr Mansour swerving in front of the defendant’s vehicle.

389. Accordingly, in my view the defendant failed to take reasonable care in all the circumstances for the safety of the plaintiff, Mrs Dib, and Manessa Hawchar. A reasonable driver would clearly have taken all necessary steps to slow down and stop the vehicle to avoid a collision. Accordingly, I find that there was a breach of the duty of care owed by the defendant to the two plaintiffs in the present case for the reasons given.

Causation

390. Sections 5D and 5E of the CLA provides as follows

“5D General principles

(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).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

391. Accordingly, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

392. The issue of factual causation to be decided in accordance with s 5D(1)(a) of the CLA involves the application of a “but for” test of causation. That is, a determination that in accordance with the section that the negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 at [18]; Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ; at [189]-[198] per Beazley P and at [319]-[324] per Basten JA.

393. The question which thus arises in the present case is whether the breach of duty of care by the defendant caused the collision and caused the injuries of which the plaintiffs complain. In my view, but for the breach of duty in the present case, the collision would have been avoided. Further, the plaintiffs would not have suffered any injuries.

394. Accordingly, causation is established in the present case. In the circumstances of this case there is no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm so caused and there is no reason why responsibility for the harm should not be imposed on the defendant: s 5D(1)(b) and 5D(4) of the CLA.

Contributory negligence

395. No contributory negligence is alleged in the present case.

Damages

Introduction

396. It is now necessary to turn to the question of damages in the light of the breach of duty of care which I have found established in relation to the plaintiffs. My medical findings are important to this analysis. I have found that each plaintiff suffered injury in the accident and thus the tort of negligence is established.

397. As stated above, neither plaintiff was assessed as having a greater than 10% whole person impairment as a result of the accident. Accordingly, no damages are to be awarded for non-economic loss.

398. The defendant submitted that either no damages should be awarded to the plaintiffs or that their damages should be limited to the treatment expenses which have already been paid by the defendant. No evidence was before me as to those treatment expenses. The plaintiffs submit that they are entitled to substantial damages which I set out in the following table:

Head of damage	Mrs Dib	Manessa
Past out-of-pocket expenses
• Section 83 payments	$2,372.70	To be determined
• Payments made by Medicare	$7,452.40	$302.40
Future out-of-pocket expenses
• Future consultations with general practitioner Dr Hamad once per month for life	$9,933.34
• GP consultations with Dr Hamad quarterly to age 18	$1,475.77
• Specialist consultations with Dr Darwish quarterly for the next three years	$2,799.99
• Ongoing medication
• Medication buffer - occasional Panadol and deep heat	$750.00
• The four medications she is currently taking	$6,300.33
• 12 physiotherapist treatments per year for two years	$1,949.77
• Gym programme	$2,700.00
• Ongoing gym membership for two years	$2,400.00
• Total gym membership
Total	$33,623.43
Past domestic assistance
• At $25 per hour for seven hours per week from the date of accident to the date of judgment • future domestic assistance at $33 per hour for seven hours for life	$230,168.40	Nil
Future economic loss buffer	$50,000.00

Past out of pocket expenses

399. The accident was a minor one. I have also preferred the opinions of Dr Lowy and Dr Rikard-Bell. It was reasonable for the plaintiffs to attend their general practitioner and to be referred for radiological investigation. Limited physiotherapy was in my view justified in the case of Mrs Dib until the end of 2014. However, I have found that the plaintiffs’ medical conditions had largely settled no later than the end of 2014. Complaints by Mrs Dib of serous pain, restrictions or disabilities after that time are neither reasonable nor justified nor established on the evidence. Mrs Dib is, in my view, for the reasons I have set out earlier, an unreliable witness and her histories as provided to medical practitioners must be treated with real caution and not generally accepted. The taking of occasional non-prescription analgesia should be accepted as warranted if symptoms arose from January 2015. I specifically reject that the taking of prescription medicine by Mrs Dib from January 2015 was reasonable or necessary for any injury arising from the August 2014 accident.

400. I think that medical appointments checking on Manessa were reasonable until mid-2015 having regard to the fact she is a child and had complained of some pain.

401. My findings should allow an agreed calculation of any loss taking into account the s 83 payments.

Future out-of-pocket expenses

402. I have found above, that any pain and restrictions arising from the accident had largely resolved for Mrs Dib by the end of 2014. Although the position is a little less clear for Manessa Hawchar, I find that any residual complaints after early 2015 were minor although medical checks were reasonable until mid 2015.

403. I have found that both the plaintiff, Mrs Dib, and her sister Ms Amne Dib were unreliable witnesses who should not be accepted in relation to the claims concerning domestic assistance.

404. In my view, having regard to the evidence and my findings, I accept the medical evidence of the defendant and reject the plaintiffs’ medical evidence to the extent that it suggests that there was any continuing substantial medical restrictions or pain in either plaintiff from January 2015.

405. The various medical opinions on behalf of the plaintiff, Mrs Dib, and her complaints to her general practitioner, rely on the accuracy of the complaints of the plaintiff Mrs Dib. I find that she is an unreliable witness and accordingly little weight can be given to her accounts of her continuing restrictions and pain from January 2015. I accept that there may be occasional symptoms of pain continuing to arise from the accident but these are minor and do not in my view impact upon the activities of either the plaintiff, Mrs Dib, or the child Manessa. Doing the best I can on the evidence, I would allow $400 for future out of pocket expenses for non-prescription analgesia for each plaintiff.

Past loss of earning capacity

406. No claim is made for either plaintiff in relation to past loss of earning capacity.

Future loss of earning capacity

407. No claim for future loss of earning capacity is made in relation to Mrs Dib. A buffer is sought in relation to future loss of earning capacity concerning the child Manessa.

408. Section 126 of MACA provides as follows:

“126 Future economic loss—claimant’s prospects and adjustments

(cf s 70A MAA)

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

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

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

409. Dr Davis in his reports expressed the opinion that in the future long periods of static loading of Manessa’s spine may result in some discomfort, particularly with computer work. The possibility of further restrictions is relied upon by Manessa in seeking a buffer of $50,000. In his first report Dr Davis indicated that the discomfort during static loading may be some disadvantage in Manessa’s choice on the open labour market in the future.

410. In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]–[71]:

“[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of “general damages”. Like other types of “general damages”, as Fullagar J said in Paff v Speed at 559, they are “of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much ‘at large’. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them”. In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said:

“Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly.”

The field is an “uncertain” one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ.

[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn — of a lost chance to earn — is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis — that the plaintiff will have undiminished capacity — which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: “it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant’s wrongful act”.

In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: “the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history”. They approved Lord Diplock’s statement in Mallett v McMonagle [1970] AC 166 at 176: “in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …”. The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes 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 in a range from just above the speculative to just below the certain. The inquiry — the process of estimation of possibilities — is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on “slender material[s]”: Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting “guess work or speculation” elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves “guess work rather than estimation”: Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as “matters of prophecy or judicial guesses” in Paul v Rendell (1981) 55 ALJR 371at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:

“when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff’s handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge’s assessment will be few and far between, for there is no established range or standard against which to measure the judge’s award.””

411. In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]–[81]:

“[79] I turn then to the issue of future economic loss. The primary judge’s finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent’s future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.

[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff’s earning capacity “is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412).

[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v R [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future.”

412. The Court of Appeal in the Sretenovic case thus states that the award of a buffer or cushion to a plaintiff is reserved only in situations where the precise loss of the plaintiff is difficult to determine and there is a “smallish risk” that the plaintiff's employment prospects will come to an end or have been reduced by the tort.

413. In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]–[9]:

“[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:

84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K’mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v R [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that “a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”, but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.

[7] The award of a buffer for future economic loss in circumstances “where earning capacity has unquestionably been reduced but its extent is difficult to assess” reflects the proposition that, to paraphrase, the want of precise evidence “does not necessarily result in non-recovery of damages”: New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant’s complaint about the adequacy of the claims assessor’s reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is “necessarily impressionistic”; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).

[8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), “s 126 is presumably intended to promote intellectual rigour”, the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.

[9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts.”

414. Basten JA stated the following at paragraphs [27]–[30]:

“[27] In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]:

The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.

To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded.

[28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1).

[29] Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for “vicissitudes” which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]:

Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that “the events concerned might have occurred but for the injury”. There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2).

[30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a “buffer”, without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]–[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; [2008] Aust Torts Rep 81–949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O’Neill [2011] NSWCA 361 at [67]–[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA).”

415. Macfarlan JA stated as follows at paragraph [66]–[67]:

[66] I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss.

[67] It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for “the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future” (at [2]).

416. Accordingly, I have to assess whether there is appropriate evidence to establish a “possibility” or smallish risk, that the plaintiff Manessa may suffer some economic loss in the future as a result of the matters referred to by Dr Davis in his reports.

417. I am not satisfied that there is such a risk established.

418. It is unclear what paid work Manessa will undertake in the future, if any, and in particular, whilst she may need to use a computer for her work, there is no evidence other than conjecture that it will involve long periods of static loading in her spine. I did not find the comment by Dr Davis in his two reports as being persuasive that there was a risk which was other than conjectural in relation to this matter and in my view the matter raised does not fall within the authorities which I have set out above. Dr Davis relied on there being an accurate history from Mrs Dib. I am not satisfied that I can conclude within the authorities that having regard to my medical findings concerning Manessa, there is a smallish risk that the realistic choices available to Manessa in the future will be relevantly limited. I accordingly reject the claim for a buffer.

Domestic assistance

419. Mrs Dib makes a claim for past domestic assistance and for future domestic assistance.

420. The evidence of Mrs Dib is that domestic assistance has been provided to her on an extensive basis from the day immediately after the accident to date. Her evidence is that her condition has worsened and this has required further assistance. The assistance consists of assistance in relation to all her domestic duties including cooking and cleaning and childminding services. She states that the care has been provided by her sister, her mother and to some extent by her husband, the defendant, and by her mother-in-law or her sister Amne Dib's children.

421. I have found that the plaintiff is an unsatisfactory and unreliable witness. Her evidence that she has been severely disabled as a result of the accident and has been unable, for a lengthy period, to do household work other than light duties, is inconsistent with her signed statement dated 23 November 2015 which became Exhibit 2. I have found that the statements were made at an earlier point in time when her recollection was more likely to be correct than her oral evidence before me. The statement which is Exhibit 2 suggests that Mrs Dib was providing substantial domestic assistance to her husband in the period from August 2014, being the date of the accident, to November 2015. I prefer that evidence. She was more likely to be truthful in relation to her separated husband’s claim where she had less of an interest than her own claim.

422. I am satisfied from the entirety of the evidence of Ms Amne Deb, particularly her cross-examination, that it is highly unlikely that she provided any domestic assistance of any substance to the plaintiff from 26 August 2014 because of her existing physical problems and restrictions arising from the June 2012 accident.

423. I did not receive any evidence from the defendant or the mother of Mrs Dib as to any assistance allegedly provided by them to Mrs Dib. I am not willing to accept the evidence of the plaintiff Mrs Dib or her sister Amne Dib that such assistance was provided as a result of the accident.

424. I also found Ms Amne Dib to be an unreliable witness for the reasons which I have set out above.

425. Having regard to all of these matters I am not satisfied as to the following:

1. That there was any need for domestic assistance to be provided to the plaintiff, Mrs Dib, from soon after the accident and certainly from the end of 2014;

2. That any significant domestic assistance was provided by Ms Amne Dib, Mrs Dib’s mother, Amne Dib’s children or the defendant to the plaintiff, Mrs Dib, at any stage after the August 2014 accident; and

3. There was or is any need for any additional domestic assistance to be provided to the plaintiff infant, Manessa Hawchar, in addition to that which she was provided by her mother prior to the accident.

426. Section 141B(1) to (3) of MACA provides as follows:

“141B Maximum amount of damages for provision of certain attendant care services (cf s 72 MAA)

(1) Compensation, included in an award of damages, for the value of attendant care services:

(a) which have been or are to be provided by another person to the person in whose favour the award is made, and

(b) for which the person in whose favour the award is made has not paid and is not liable to pay,

must not exceed the amount determined in accordance with this section.

(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.

(3) Further, no compensation is to be awarded unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.”

427. In my view, and I find, no attendant care services within the Act were provided to either of the plaintiffs satisfying s 141B(3). In my view, either no services were provided to either plaintiff from the end of 2014, or that if they were provided, they were not reasonably provided, or that they were provided for at least six hours per week. Accordingly, the requirements in s 141B(3) are not satisfied as to either plaintiff.

428. I also find that there is no future need for domestic assistance as the plaintiffs’ conditions have largely resolved apart from possible occasional slight and temporary aches or pain.

429. Therefore, I would allow no sum to Mrs Dib for domestic assistance within the Act.

Disposition

430. The defendant has a defence for any treatment expenses already paid in relation to the plaintiffs. This therefore needs to be taken into account.

431. I will hear from the parties as to the payment of Manessa Hawchar’s damages.

432. I accordingly make the following orders in the matter relating to Mrs Dib:

1. The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days;

2. The question of costs is reserved;

3. Liberty to apply in relation to the issue of the costs of the proceedings;

4. Exhibits to be retained until further order.

433. I make the following orders in the proceedings concerning Manessa Hawchar:

1. The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days;

2. The question of costs is reserved;

3. Liberty to apply in relation to the issue of the costs of the proceedings;

4. Exhibits to be retained until further order.

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Decision last updated: 14 August 2018