Hawchar bht Manal El Haj Dib v Diab (No 2); Dib v Diab (No 2)
[2018] NSWDC 268
•21 September 2018
District Court
New South Wales
Medium Neutral Citation: Hawchar bht Manal El Haj Dib v Diab (No 2); Dib v Diab (No 2) [2018] NSWDC 268 Hearing dates: 7 September 2018 Date of orders: 21 September 2018 Decision date: 21 September 2018 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) The radiological services expenses claimed for services provided to Mrs Dib after 31 December 2014 are not to be awarded to Mrs Dib.
(2) The physiotherapy services expenses claimed for services provided to Manessa Hawchar prior to 1 July 2015 in the sum of $224.70 are to be taken into account in any damages awarded to Manessa Hawchar.Catchwords: Torts – negligence – motor vehicle accident – whether certain expenses fell within reasons for decision Cases Cited: Hawchar v Diab [2018] NSWDC 219 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:
Solicitors:
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)
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
Judgment
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On 10 August 2018 I handed down my reasons for decision in this matter and made orders including for the parties to bring in agreed short minutes: Hawchar v Diab [2018] NSWDC 219 (“the Reasons for Decision”). There have been disputes between the parties in relation to the appropriate orders to be made including in relation to the question of costs.
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The matter was listed for hearing on these issues before me on 7 September 2018 but was adjourned to allow for the preparation of written submissions on a number of matters.
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However, on that day two points were raised for consideration and oral submissions were made. This judgment deals with those two points.
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The two points relate to:
Radiological expenses concerning Mrs Dib: It was agreed by the parties that these expenses related to services provided to Mrs Dib between 9 July 2015 and 9 March 2016 in the sum of $1,077.45. These services were provided on 9 July 2015, 10 July 2015, 30 October 2015, 2 December 2015 and 9 March 2016;
Physiotherapy services provided to the child Manessa Hawchar in the amount of $224.70. These services were provided to Manessa prior to 30 June 2015.
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Relevant paragraphs of my reasons for decision are paragraphs 375, 399 and 400 which were as follows:
“375. I find that the physical injuries allegedly suffered by the plaintiff, Mrs Dib, had largely resolved at the latest by the end of 2014. Any symptoms after that are likely to have been very minor and transitory and could be dealt with by occasional non-prescription analgesia. In my view and I find, the plaintiff’s continued complaints of pain to doctors after the end of 2014 are greatly exaggerated and unreliable. I find further for the same reasons that if Mrs Dib ingested the medicine she was prescribed as she claims after the end of 2014, it has no reasonable connection to any injuries which occurred in the accident of August 2014. I also find that Mrs Dib’s claims that her injuries prevented her undertaking domestic duties from the day of the accident should be rejected. Exhibit 2 should be accepted as stating the true position. Ms Amne Dib was unable to provide the domestic assistance Mrs Dib claims. This undermines the reports of Dr Davis, Dr Marsh and Ms Lethbridge who relied on the accuracy of the histories provided by Mrs Dib.
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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.”
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The plaintiffs submitted:
The radiology expenses should be included in any damages awarded to Mrs Dib as these involved reasonable investigation of the physical condition of Mrs Dib; and
The physiotherapy services should be included as they constituted “checking on” Manessa and occurred prior to 30 June 2015.
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The defendant submitted:
The court found that the claims by Mrs Dib had “largely resolved at the latest by the end of 2014” and that Mrs Dib's continued complaints of pain to doctors after the end of 2014 were “greatly exaggerated and unreliable” – Reasons for Decision paragraph 375. Accordingly, the radiology expenses after 31 December 2014 did not fall within the Reasons for Decision;
The plaintiffs’ medical conditions had “largely settled no later than the end of 2014” – Reasons for Decision paragraph 399;
The concept of “medical appointments checking on” Manessa in paragraph 400 of the Reasons for Decision included checking through general practitioner appointments and not physiotherapy appointments.
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In my view, the radiological expenses claims of Mrs Dib are not included as expenses to be taken into account within the Reasons for Decision. This is established by:
The date of the services provided, all of which were well after 31 December 2014; and
Also by an analysis of the general practitioner records in Exhibit A pages 116-118. It seems clear to me that the radiological services were referred by the general practitioner at the earliest on 3 February 2015 and possibly not until 10 March 2015. This is well prior to 31 December 2014.
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The position would be different in my view if they had been referred on or prior to 31 December 2014.
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Accordingly, the radiological services expenses sought by Mrs Dib are not covered in paragraph 400 of my Reasons for Decision.
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In relation to the physiotherapy services provided to Manessa prior to 30 June 2015, in my view these fall within the concept of “medical appointments checking on Manessa” and any injuries or continued restrictions which she may have. Although a physiotherapist is not a doctor the real issue is checking to determine whether Manessa objectively required treatment. Accordingly, I would allow the amount of $224.70 in dispute concerning Manessa.
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Any final orders will need to take into account these rulings.
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Accordingly I make the following orders:
The radiological services expenses claimed for services provided to Mrs Dib after 31 December 2014 are not to be awarded to Mrs Dib.
The physiotherapy services expenses claimed for services provided to Manessa Hawchar prior to 1 July 2015 in the sum of $224.70 are to be taken into account in any damages awarded to Manessa Hawchar.
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Decision last updated: 24 September 2018
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