Jarouche v Hijazi

[2015] NSWDC 207

District Court

New South Wales

Medium Neutral Citation:	Jarouche v Hijazi [2015] NSWDC 207
Hearing dates:	16 September 2015 – 18 September 2015
Date of orders:	22 September 2015
Decision date:	22 September 2015
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Judgment for the plaintiff for $45,512.30
Catchwords:	Assessment of damages
Legislation Cited:	Motor Accidents Compensation Act 1999
Category:	Principal judgment
Parties:	Zeinab Jarouche (Plaintiff) Safieh Hijazi (Defendant)
Representation:	Counsel: M Campbell and V Tzatzagos (Plaintiff) R O’Keefe (Defendant)   Solicitors: Brydens Law Office (Plaintiff) Vardanega Roberts (Defendant)
File Number(s):	2014/00169621

Judgment

1. The plaintiff is 59 years of age. She was born in Lebanon. She immigrated to Australia in 1990. On 26 March 2011 she was a passenger in a motor vehicle which was struck in the rear by another vehicle. The plaintiff was injured. She blames the defendant for her injuries and seeks damages in this action.

2. The matter is governed by the Motor Accidents Compensation Act 1999 (the “MACA”). All sections referred to in these reasons are in the MACA. Breach of duty of care has been admitted. The plaintiff claimed damages under the following heads: past and future economic loss, future paid domestic assistance and past and future medical expenses.

3. The plaintiff did not claim non-economic loss because she does not exceed the threshold set by Section 131. She has not made a claim for past gratuitous domestic assistance because of the thresholds required by Section 141B.

4. The plaintiff’s schedule of damages totalled $585,368.30. The defendant conceded the plaintiff’s claim for past out of pocket expenses in the sum of $5,333.30 together with about $4,000 for future medical costs. The defendant said that there should be no allowance for any other head of damages. The parties therefore had very different approaches to the matter.

The plaintiff’s background

5. The plaintiff completed high school in Lebanon. She received a scholarship to study in France. The course was to assist her becoming a languages teacher.

6. On her return to Lebanon the plaintiff was employed as a primary school teacher. She went on to have five children, ranging in age, currently, from 25 to 35.

7. The plaintiff and her family came to Australia in 1990. The plaintiff was initially employed as a primary school teacher on a part time basis. She also studied and obtained a Bachelor of Arts (Languages) degree from The University of Sydney. She later obtained a Bachelor of Secondary Teaching degree.

8. In 2004 the plaintiff began employment as a high school teacher on a fulltime basis. Although changing schools once she remained in this employment until her accident. At that time she was teaching French to HSC students at Bankstown Senior College.

9. In 2006 the plaintiff injured her right arm and neck when she slipped over at a service station. She was off work for some time and received workers compensation payments. In 2008 the plaintiff also began working for the Board of Studies doing HSC examination marking.

10. Following the injury to her neck and right arm the plaintiff had a number of investigative scans and also saw Dr Rail (a neurologist) and Professor van Gelder (a neurosurgeon). She underwent conservative treatment although Professor van Gelder contemplated surgery. In April 2007, while teaching, the plaintiff was threatened by a student. She took some time off work as a result of anxiety and depression.

11. The plaintiff’s medical history also includes scans of her low back but the timing and relevance of these investigations was not explored.

12. Also in 2008 the plaintiff was employed as a South Western Sydney Area League Co-ordinator for French and Arabic Studies. This involved her organising a workshop every eight weeks. She did not receive extra pay for this task.

13. In September 2008 the plaintiff had psychological treatment with both a psychologist and a psychiatrist. She seems to have sustained an aggravation to her neck injury in November 2009.

14. The plaintiff’s son, Mohammed, moved to Lebanon in 2009. Early the following year her husband also moved to Lebanon where he stood for election as mayor of the village in which he had lived before coming to Australia. He was successful. The plaintiff visited him in May 2010 for about 10 weeks.

15. I note here that the plaintiff’s mother lives in Sydney as do her two daughters. Both daughters have children. When the plaintiff currently visits Sydney she stays with one or other of her daughters. She has to share a room with a grandchild. She said she does not stay with her mother, other than for the occasional night, because her mother likes to talk for extended periods and she is unable to get a proper night’s rest. Before he moved to Lebanon earlier this year, the plaintiff lived with her son, Louie.

16. The plaintiff’s daughter, Marian, is a Doctor of Medical Studies teaching in a Sydney University. The plaintiff’s family, on a broader scale, is obviously well educated. She mentioned a number of family members being in the medical profession in Lebanon.

17. The plaintiff’s son, Oussama, moved to Lebanon in 2011 and was due to be married in June 2011. The plaintiff wanted to attend the wedding but was only able to negotiate a full year, or perhaps two years, of leave without pay instead of the two weeks she said she had originally requested. The arrangement also included the plaintiff resigning from her full-time position. This leave commenced in May 2011.

18. The question of the plaintiff’s application for leave took up a good deal of her cross-examination. The importance was that the defendant’s position is that the plaintiff had no intention of spending only two weeks in Lebanon but rather wanted to spend more time with her husband and the family that had moved to Lebanon. Accordingly she had no intention of remaining a teacher at Bankstown Senior College and her past economic loss claim would be accordingly affected.

19. It was suggested to the plaintiff that the applications that she put in (Exhibits 4, 5 and 6) simply could not sit with her evidence that she had intended to spend only two weeks at her son’s wedding. A plain reading of these documents certainly contradicts her evidence. For example the first application (Exhibit 4) is for 50 days leave, not the two weeks she said she wanted. Not only do none of the documents mention a wedding, although I would accept it is a “family” or “personal” reason, but the alleged device for her to obtain two weeks of unpaid leave by agreeing to relinquish her employment seems both bizarre and untenable. Further, if the plaintiff only wanted two weeks of leave, why did she initially apply for 50 days of leave and why did she not ask for a review of the decision stating she only wanted two weeks off for the specific intention of attending the wedding.

20. The plaintiff said that her principal and a friend from Melbourne (Mr Moysun Khalifeh) were aware of the arrangement and Mr Khalifeh had helped her compose Exhibit 5. Neither the principal nor Mr Khalifeh were called to give evidence to corroborate her assertions.

21. The plaintiff did return to Sydney to work with her HSC class, but as a casual teacher. This is in her favour but not to an extent that I can overlook all the documentary evidence that suggests her intention was to spend more time in Lebanon. The letter, Exhibit 5, states, for example:

“My husband has recently signed a three years contract overseas where he is currently located with my youngest son and my oldest son. My partner has provided with all support during my studies, my life and I feel obliged to observe my duty of care to the family in these hard circumstances.”

22. The letter ends:

“Overall, I do ask your kind consideration of my leave without pay for a maximum period of two years, starting from May 2011, ending Term 2 2013, or otherwise calculated days based on the difference between the maximum entitlement of three years and total leave time taken to date.”

23. The handwritten notes at the end of Exhibit 5, presumably made by Mr Reid, mention a conversation with the principal which is inconsistent with the principal being aware of the alleged ‘true’ intent of the application.

24. My conclusion is that the plaintiff’s intention was to take long leave from her employment so as to spend significant periods of time with her husband and sons in Lebanon. This has proved to be the case (Exhibit 12). I am also satisfied that with the exception of her return in July 2011 the plaintiff has primarily returned to Australia to visit her daughters and her mother.

The accident

25. The plaintiff was seated behind the driver. The vehicle was struck from behind in what was described as a minor to moderate collision. The other vehicle was said to be travelling at 40kph. The plaintiff felt the sensation of going forwards and then backwards. In order to protect herself she said she put her right arm up against the back of the driver’s seat. It was put to the plaintiff that she could not have made this movement if she was unaware of being hit. I do not see why the action could not have been an instinctive reaction on her part.

26. The plaintiff has little memory of what occurred immediately after the accident; however it seems she went home and was then taken by ambulance to Campbelltown Hospital where she had radiological investigations of her cervical spine. She was admitted and remained in hospital overnight.

After the accident

27. The plaintiff’s complaints of pain following the accident centred on her neck, her right wrist and her left knee. She said she only became aware of a left knee problem when she returned to work and needed to climb a set of stairs to her classroom. The injury to the left knee was however conceded. She also did not realise she had a problem in her right wrist for some time because it was only in about September of 2011 that she noticed pain when doing a lot of writing. Her main complaint seems to have been about her neck which caused her dizziness so that she would have to leave class for long periods. She would also vomit and she became anxious, especially in the playground.

28. The plaintiff said that she had become depressed because she felt that she was not productive. At one stage she was prescribed Zoloft, an antidepressant, but gave up the drug because she felt she needed to move on with her life.

29. The plaintiff has continued to travel to Lebanon and, over the last two or three years, has spent about nine months of each year in that country (Exhibit 12). It was suggested to her that the reasons for her return to Australia for limited periods was to visit her daughters and grandchildren. She agreed this was the case but said that she also returned in order to attend medical appointments for her case and to follow up with the Department of Education which had indicated to her that she could be relocated. While I accept that there may have been a need to return for medical appointments I found her evidence about the Department difficult to accept. First of all the Department has not in fact done anything for her for some years so I do not know why there would be any expectation of any different outcome. Secondly, there is no reason why she could not keep in contact with the Department by email.

30. The plaintiff was at all times adamant that she had always intended to remain in Australia as a full-time high school teacher. The trips to Lebanon were supposed to have only taken place during school holidays.

31. The plaintiff said her present position was that she continued to suffer from dizziness and had pain in her neck. She had again been recommended surgery but she was scared of it. She said if matters got worse it would be considered. The plaintiff also said surgery had been recommended for her knee but her reaction to it was the same as surgery for her neck. She would however have knee surgery if symptoms became worse.

32. The plaintiff said she continued to have dizzy spells and significant restriction down the whole of her right arm. She said she could not write on a blackboard or spend long periods in class without becoming very tired. She said she could not drive for long distances and this restriction limited her ability to take jobs, or accept tuition, at any distance from her residence.

33. The plaintiff said that she could not walk for longer than periods of about 10 minutes before needing to sit down. It was put to her that this was not the case and that she had in fact walked around the Minto Shopping Centre in March 2014 for about 40 minutes without sitting down. These questions obviously related to surveillance footage which had been mentioned at the commencement of the case. The footage was, however, not shown so that I disregard the suggestion put to the plaintiff about her activities at the shopping centre.

34. The plaintiff’s son Mr Louie Jarouche, gave evidence. He moved to Lebanon at the beginning of this year but has returned apparently to give evidence in support of his mother’s case (T 87.40). If this is a correct statement it is somewhat surprising because his evidence was in many respects almost diametrically opposed to that of his mother.

35. The prime example of the inconsistency concerns his mother’s activities in the house before the motor vehicle accident. It is to be recalled that the plaintiff’s evidence was that following the fall in 2006 and up to the motor vehicle accident she was doing little more than washing and cooking (T 22.37). According to Mr Jarouche his mother, before the motor vehicle accident, was doing all of the ‘inside’ housework including mopping, vacuuming, cleaning windows, cleaning the bathroom and the cooking. He said that it was necessary to hire a cleaner after the accident. He said there may have been a housekeeper from time to time before the accident but not a regular cleaner. In addition he said the cleaner was a private contractor whereas his mother said that the cleaner was a friend or relative, explaining why there were no receipts.

36. Another area of inconsistency concerned the amount of time that the plaintiff has spent in Australia since the accident. Mr Jarouche said his impression was that she had been in Australia for the majority of the time since the accident. This is contradicted both by the plaintiff’s evidence and by the records produced by the Department of Immigration (Exhibit 12).

37. Yet another inconsistency is that Mr Jarouche, albeit subject to some vagueness of memory, seemed to suggest that his mother had continued working at Bankstown Senior College after 2011. The overall impression I had of Mr Jarouche’s evidence was that it was either very vague or so obviously wrong (for example about domestic activity) that I should give little or no weight to it.

Medical evidence

38. I do not propose to summarise all of the medical evidence but rather to highlight the more important elements.

39. Dr Conrad was the only doctor required for cross-examination. His reports are part of Exhibit A. Dr Conrad is a general surgeon who now only does medico-legal work, exclusively for plaintiffs or applicants. I do not regard the latter fact as significant. There are no doubt doctors who provide reports exclusively for defendants. There was no evidence to suggest any bias on the doctor’s part or any interference with the independence required by the code of conduct.

40. The difficulty with Dr Conrad’s reports, and his opinions, is that there are significant errors or omissions of relevant parts of history. For example, the doctor was not provided with any pre-motor accident CT or MRI scans and he did not know Professor van Gelder had recommended cervical surgery prior to the accident. My impression of Dr Conrad’s answers was that the latter point was of some considerable significance to him. I should add here that in re-examination he was asked if any of the material described in cross-examination had caused him to change his mind. He said it had not. I treat this answer with considerable caution. He did not have the opportunity to read Professor van Gelder’s report and the MRI and CT scan reports were put to him in a piecemeal fashion. He also made the point that the MRI results could only be of relevance to him if he had examined the plaintiff at the time of the reports. His answer in re-examination is therefore to be taken against a background of the new information being relevant but not to a standard of detail and examination which would have allowed him to consider whether his opinion would change.

41. Another item of history in respect of which there was an error concerned the domestic assistance that the plaintiff was receiving as a result of the motor vehicle accident. Dr Conrad, in his second report, was clearly given an erroneous history. He said that had the history been given which was the same as that provided by the plaintiff in court then that would have been very relevant.

42. I think the proper approach to take to Dr Conrad’s reports is that nothing that he was told would have affected his opinion provided the histories that he had remained valid. For example, he conceded that if the wrist problems had only arisen three months after the accident they would be unlikely to have been related. Clearly then, if he would have been given that history, his report would have been different. For him to say that nothing that was said could change his opinion must be read against his overall position that, in retrospect, he had not received any further relevant information on which to base his report.

43. Another example is Dr Conrad being informed that the plaintiff had continued to see a general practitioner complaining of neck pain including a visit only days before the accident. This history must be relevant yet Dr Conrad did not have it available. Had this piece of information, together with all the other information that was put to him, been before him originally, then in my view his final answer given in re-examination may well have been very different.

44. Another difficulty arising from Dr Conrad’s reports and his evidence concerns the plaintiff’s right shoulder. Dr Conrad proceeded on the basis that there was no separate shoulder injury, rather there was radiation of pain from the neck into the shoulders. The problem with this is that the plaintiff alleges severe tendonitis in her right shoulder for which she has had injections as described by Dr Arabi in his report of 1 August 2014 (Exhibit A). In addition it is quite extraordinary that when Dr Conrad examined the plaintiff on either side of the injections (8 March 2012 and 12 August 2014) he found full movements in both shoulders.

45. Dr Arabi says the tendonitis had been present since 2013. I cannot see any basis upon which I can conclude there was any distinct and separate injury to the right shoulder in the motor vehicle accident.

46. The plaintiff relied on two reports from Dr Bodel, an orthopaedic surgeon (Exhibit A). One of the difficulties with Dr Bodel’s reports is that he has an incorrect medical history. He says that the plaintiff told him that the symptoms from her previous injury had “settled with conservative care” and that she was asymptomatic at the time of the motor vehicle accident. This is obviously not the case, in particular having regard to the visit to Dr Tosson some days before the accident. Dr Bodel’s opinion therefore that the plaintiff has ongoing disabilities in her neck must be treated with some caution.

47. I do note that notwithstanding the incorrect history Dr Bodel stated: “With improved physical fitness levels and work hardening she should be able to upgrade to full time hours of work”.

48. Both sides tendered reports from Professor van Gelder. He treated the plaintiff before and after the motor vehicle accident. His reports are therefore of some importance and I have already noted that Dr Conrad seemed to regard Professor van Gelder’s opinions as significant.

38. Professor van Gelder’s reports are in Exhibit A from page 41 and in Exhibit 2, starting at page 169.

39. As early as February 2007 Professor van Gelder contemplated the possibility of decompression surgery in the plaintiff’s cervical spine. When he saw the plaintiff after the accident he noted that the plaintiff was very tender in the right wrist and that there was an aggravation of her neck condition. He referred her for an MRI scan. When he saw the reports of the scan he said that it shows “the usual age related changes of degenerative disc disease. She has significant neural foramen stenosis on the right at C6/7 from disc and osteophyte protrusion”. He continued that the plaintiff said she was “too scared to contemplate neurosurgical treatments”. Interestingly he noted that the plaintiff “was more focussed on attributing blame and causation than on treatment when seen today”.

40. Professor van Gelder suggested the plaintiff continue with conservative treatment together with light activity and reassurance and painkilling medication.

41. The defendant’s medical case is to be found in Exhibits 2 and 3. I rejected the tender of reports from a Dr Sekel for reasons given in a separate judgment.

42. Dr Powell is an orthopaedic surgeon. He provided two reports in which he found that the plaintiff had suffered an aggravation of pre-existing degenerative changes in her neck and also the knee injury. He observed “abnormal illness behaviour” referring to his observations of the plaintiff and his view that there was an exaggerated pain response. No clinical examination was of course conducted when the plaintiff was in the witness box but she did not appear to me to display any exaggeration or outward showing of pain.

43. In his first report, in relation to the plaintiff’s capacity to work, Dr Powell said:

“Recommended restrictions would include alternating her tasks where possible and she should not be involved in supervision of sport and should limit playground duties so as to avoid placing significant load on her neck and knee.”

55. It is significant that Dr Powell includes the protection of the knee in his suggested restrictions. While the defendant’s case relied heavily on the plaintiff’s pre-accident neck condition as dictating her current work capacity, it certainly could not allege any pre-existing knee problem.

56. In relation to domestic activity, and once again with the emphasis on the plaintiff’s knee, Dr Powell said the plaintiff was fit to perform domestic duties but: “She should avoid repetitive bending, kneeling, squatting or ladder climbing”.

57. In his second report Dr Powell reaches the same conclusions as he had in the earlier report but emphasises the abnormal illness behaviour. He continued “there was a clear psychosomatic component to her presentation. Her current presentation cannot be explained by injuries sustained in the motor vehicle accident in 2011”. I repeat here that there was nothing about the plaintiff’s conduct in the witness box that suggested any overt exaggeration on her part.

58. Dr Truskett examined the plaintiff on behalf of the Medical Assessment Service. He also found an aggravation to the plaintiff’s neck as well as “significant illness behaviour”. Notwithstanding this he also found that the plaintiff suffered injuries to her neck, left knee, right arm, right wrist and left arm in the accident. Other than the neck he said all of the above injuries were of a soft tissue nature.

59. The defendant relied on a number of consultations with the plaintiff’s general practitioner to show the consistency and extent of her pre-accident neck problems. In addition the defendant relied on the plaintiff’s concession that at the time of the accident she was under a lifting restriction as well as a restriction not to use her arms above shoulder level.

60. The defendant emphasised the visit to the doctor (Exhibit 2, page 59) on 21 March 2011, only days before the accident, in which the plaintiff complained of neck pain travelling to her upper limbs and also of pins and needles. On examination the doctor found a decrease in the range of movement in all directions and referred the plaintiff to physiotherapy. The defendant submitted that this entry, together with the assorted visits to Dr Tosson over the years from 2006, highlighted the plaintiff’s serious pre-accident condition. The plaintiff countered this submission by indicating that notwithstanding the various visits she had only had ten days off work from 2007 up to the motor vehicle accident.

61. Having demonstrated what it said was a serious pre-accident condition the defendant then drew attention to the facsimile dated 28 July 2011 from Dr Tosson to the Treasury Managed Fund (the workers compensation insurer) in which the plaintiff is certified as fit for pre-injury duties but with restrictions that were essentially the same as those that had applied before the accident. Thus the defendant submitted that the end point for the aggravation of the neck injury was 28 July 2011. If the plaintiff did receive any past economic loss the defendant submitted that it would not extend beyond this date.

62. The plaintiff submitted that this facsimile (Exhibit 2, page 167) should be treated with some caution. I agree. The caution arises from the fact that a reading of the facsimile indicates that it is a request for an update concerning the plaintiff’s condition but was not the product of a separate examination by the doctor.

63. Dr Tosson did see the plaintiff on 30 July 2011 (Exhibit 2, page 60) when he found neck stiffness as well as a decrease in the range of movement in all directions. He also noted an impaired sensation in the neck and observed a fusion and swelling in the left knee. This entry would seem to indicate that the aggravation had not subsided some days earlier but was continuing. The continuing complaints during 2011 made to Dr Tosson would seem to support this view.

64. The end result of an examination of the medical material, and I have not mentioned all of it, is that I find that the plaintiff suffered an aggravation to her previous neck condition which continued well past 28 July 2011 and may still continue, although it is difficult to reach any firm conclusion on that point. In addition the plaintiff has the left knee injury and perhaps some soft tissue injuries to her arms, although these are difficult to assess in respect of both their extent and impact on the plaintiff’s daily life. I have already said that I do not accept that the right shoulder tendonitis is related to the accident.

Damages

65. My initial general impression of the plaintiff was that she was an honest witness. For example she did not diminish the effects of the 2006 neck and arm injury, conceding that surgery to her neck had been suggested and stating that there were limitations placed upon her work capacity. In addition she said her domestic activity before the motor vehicle accident was significantly limited to the extent that she did very little housework, little more than cooking, shopping and clothes washing (T 22.37). She said she did not do any cleaning and gave very moderate estimates for the time spent on the chores that she did undertake.

66. However as cross-examination continued, together with the inclusion of documentary evidence, I came to the view that the plaintiff’s evidence should be treated with caution, not necessarily as a reflection of her credit but more as a measure of her reliability. Her evidence about the leave applications, the incomplete histories to doctors and the inclusion of unconnected injuries in the claim, all combined to impact on the plaintiff’s reliability.

67. Another preliminary comment is that it is important to remember that the onus is on the plaintiff to prove her loss. In this regard I note the plaintiff did not call her daughters to give evidence. They could presumably have given evidence about their mother’s visits to Australia and her capacity to do housework. I draw an inference that their evidence would not have assisted the plaintiff’s case. There was also no attempt to serve and tender a statement from the plaintiff’s husband about his observations of his wife and his future residential intentions. I draw a similar inference in respect of Mr Jarouche. I note that an application by the plaintiff to adjourn the case to call the school principal was withdrawn.

68. Beginning with past economic loss, the parties agreed that the plaintiff’s net wage at the time of the accident was $1,250 per week. The plaintiff claimed four days per week for 40 weeks over 4.5 years. This amounted to $182,400 after deducting the $12,000 the plaintiff had earned.

69. The defendant’s position was that the plaintiff had returned to the work capacity that she enjoyed before the accident by the end of July 2011 so that there should be no past economic loss or at least it should be very minimal. In addition the defendant emphasised that the plaintiff had decided to spend most of each year in Lebanon so that her pre-accident employment could not be used as a measure of her loss.

70. The defendant also pointed out that even the plaintiff’s medical opinion included a capacity to work (Dr Bodel).

71. The defendant made no allowance for the plaintiff’s left knee condition. It first of all submitted that no restriction was placed on her capacity to work as a result of this condition and, secondly, that she had failed to mitigate her loss by not having the recommended surgery.

72. In relation to the defendant’s first point, while Dr Tosson did not specifically place any new related restriction on the plaintiff’s capacity to work, his facsimile on 28 July 2011 does mention the surgery and treatment required for the leg. The plaintiff’s knee condition includes a meniscal tear. The duties of a teacher in managing a classroom will no doubt include a good deal of sitting and standing and moving about through the room. I can quite easily envisage some restriction on the plaintiff’s capacity to undertake these tasks.

73. I do not think the plaintiff has failed to mitigate her loss. In my view it is reasonable for a person to resist surgery for as long as possible. Further, the plaintiff has indicated that if her knee worsens she will have the surgery. The defendant submitted that the plaintiff’s failure to have the surgery was unreasonable when compared to the fact that she has had significant dental work. I do not see any correlation and reject the notion that a person who is prepared to have work done on their teeth acts unreasonably in delaying surgery on a knee.

74. As I have already said I am satisfied that the aggravation to the plaintiff’s neck continued beyond July 2011 although I cannot say whether it still continues or, if it does, for how long it will remain. I do however note that the plaintiff told Dr Tosson on 13 March 2012 that she had been to a medical assessment where she had been told that she was fit for four hours work but she said “the only barrier is travelling”. Then on 22 March 2012 the plaintiff told Dr Tosson that she had been able to work full time before the accident but now could not even manage two days per week (Exhibit N).

75. The plaintiff is now working for two hours per day at a childcare centre in Lebanon. Her wage is US$10 per day. She said she was coping with this work but indicated, if I understood her correctly, that she was not doing longer hours because she felt the work was demeaning. She is still doing HSC marking when she comes to Australia but this seems to be no more than about three days per year.

76. In measuring economic loss the two essential requirements are that there has been a diminution in the plaintiff’s earning capacity and that this diminution has been productive of an economic loss. I have little difficulty in finding that there has been a diminution in the plaintiff’s earning capacity due to the aggravation of her neck condition, at least for a majority of the time in the past and because of her left knee injury. However, I have great difficulty in calculating how this incapacity has produced an economic loss. The plaintiff has never suggested that she could look for senior teaching in Lebanon. She lives in a village with her husband and it may be that there are simply no opportunities for such teaching. However I am satisfied that she has chosen to live with her husband in Lebanon for the majority of each year and so any inability to teach at the level she was previously teaching in Australia is as a result of her own choice.

77. The only possible way I think I can approach past economic loss, and as will be seen below, future economic loss, is by way of a buffer. A buffer must be very small because of the limited periods during which the plaintiff has been in Australia. In addition, even at her pre-accident capacity, there is no evidence that the plaintiff could have obtained casual teaching, or any other work, during her relatively short stays. Based on Exhibit 12, the plaintiff has been in Australia for 68 weeks since July 2011. Assessing her lost capacity at say 30% of her previous capacity, based on the wage of $1,250, the loss would be $375 per week. However, as I have said, there is certainly no indication that the plaintiff would have worked for all of the 68 weeks she has been in Australia. I also repeat my earlier finding that the main reason she has travelled to Australia is to visit her daughters or her mother.

78. Taking all these factors into account I think the buffer for past economic loss should be $5,000 plus the six weeks after the accident until she left for Lebanon on 13 May 2011. This period should be assessed at $1,250 per week, which is $7,500.

79. Total past economic loss is therefore $12,500.

80. Lost superannuation benefits on past economic loss at 11% is $1,375.

81. Turning now to future economic loss, my first task is to make findings pursuant to Section 126. In this regard I am satisfied that but for the accident the plaintiff would have continued to work as a high school teacher at least as long as she was residing in Australia. I think vicissitudes would have been higher than the norm of 15% due to the likely impact of her well established neck condition. I think that 25% would be more appropriate. The first difficulty in assessing future economic loss is to decide for how many years the plaintiff is likely to remain predominantly living in Lebanon. Her husband’s term as a mayor is likely to end in 2016 or 2018 and the evidence would indicate that he is unlikely to seek another term. That does not of course mean that the family will necessarily relocate back to Sydney. On the one hand the plaintiff has two daughters and her mother in Sydney, but her three sons now all live in Lebanon. In addition the village in which the plaintiff resides seems to be an ancestral home for the family and one can imagine that they might decide to remain in that place.

82. The plaintiff is now 56 years of age. Future economic loss is claimed to age 70 but the plaintiff did not say she would work to this age. She said she would work as long as she was able.

83. I repeat my earlier conclusion that the only possible way to assess future economic loss is by way of a buffer and once again it must be modest. It must take into account that the aggravation to the plaintiff’s neck may well have ceased, that she may well have surgery to her knee which could improve the problems the knee creates, that in any event her left knee has not been the subject of specific work restrictions and the plaintiff may not return to Australia, on a full time working basis, for some years. On this basis, including the increased level of vicissitudes and any lost superannuation benefits I assess future economic loss at $25,000.

84. In respect of future paid domestic assistance the plaintiff reduced her claim, made at the start of the case, from three hours per week down to one hour per week in final submissions. At $40 per hour for the balance of the plaintiff’s medium life expectancy the result is $32,384. The defendant accepted the rate of $40 per hour but nothing else.

85. Assessing future paid care faces the same difficulties as posed by future economic loss in not knowing where the plaintiff is likely to be living. She seems to have a housekeeper in Lebanon but this person is funded by her husband and it is not clear if the housekeeper remains employed even when the plaintiff is not in Lebanon. In addition, and more importantly, the plaintiff’s evidence was that as a result of her pre-accident condition, the only housework she was doing before the accident was cooking, washing, and shopping. If the aggravation to the plaintiff’s neck has ceased then I do not see that these activities could not be done as a result of the plaintiff’s knee condition.

86. If the left knee did impact on the plaintiff’s capacity to put clothes in or out of a washing machine or to do some cooking or shopping I do not see how this impact could result in a necessity for even an hour’s assistance per week. In my view the evidence simply does not allow for any assessment of paid care. I would add here that Dr Conrad’s six hours per week, as I think he conceded, being based on how long his wife takes to do certain tasks is not an appropriate measure of this, or any other, plaintiff’s need for domestic assistance.

87. I have already noted that past out of pocket expenses were agreed at $5,333.30. The plaintiff claimed $15,000 for future medical expenses. The defendant said that no more than $4,000 should be allowed, this being 50% of the estimate of expenses put forward by Dr Nabavi in his report of 29 February 2012 (Exhibit A).

88. I agree with the defendant’s submission that the cost of surgery should be reduced because it is not likely to happen for some time, if at all. I think the figure of $4,000 for the surgery is appropriate. I will however add a further $1,000 to take account of any physiotherapy or painkilling medication that might be associated with the plaintiff’s knee or the possibility of some still existing aggravation of the plaintiff’s neck condition. Accordingly I allow future medical expenses of $5,000.

89. A summary of the damages I have allowed is as follows:

Past economic loss	$12,500.00
Lost superannuation benefits	$1,375.00
Future economic loss	$25,000.00
Out of pocket expenses	$5,333.30
Future medical expenses	$5,000.00
Total	$49,208.30

90. The above total must be reduced by $3,696, being the Section 83 expenses paid by the insurer. The result is $45,512.30.

91. I make the following orders:

1. Judgment for the plaintiff in the sum of $45,512.30.

2. Subject to further order, the defendant is to pay the plaintiff’s costs of the proceedings.

3. The exhibits may be returned.

92. I will hear the parties on any application for a different costs order.

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Decision last updated: 22 September 2015