Kanar Saber v Omar Ali and the Nominal Defendant

[2011] NSWDC 159

District Court

New South Wales

Medium Neutral Citation:	Kanar Saber v Omar Ali and the Nominal Defendant [2011] NSWDC 159
Decision date:	13 October 2011
Jurisdiction:	Civil
Before:	Cogswell SC DCJ
Decision:	I enter a verdict for the first defendant. I enter a verdict for the plaintiff against the second defendant in the amount of $380,667.40. I enter judgment for the first defendant and judgment for the plaintiff against the second defendant for that amount.
Catchwords:	CIVIL LAW - car accident - first defendant is plaintiff's husband and was driving the car - Nominal Defendant sued as second defendant in place of unidentified driver of second car - first and second defendant each claim the other was responsible for the accident - plaintiff not of much assistance as witness - responsibility for the accident - acting in "agony of the moment" - assessment of damages - prior medical conditions of plaintiff - plaintiff in receipt of disability pension and had a paid carer before accident - psychiatric impairment - previous diagnosis of major depression - significant change in behaviour since accident - defendants' psychiatric evidence not tendered Jones v Dunkel inference - past and future expenses and domestic assistance
Cases Cited:	Abdallah v Newton (1998) 28 MVR 364 Jones v Dunkel (1959) 101 CLR 298 Mason v Demasi [2009] NSWCA 227
Category:	Principal judgment
Parties:	Kanar Saber Omar Ali Nominal Defendant
Representation:	Mr AJ Lidden SC for the plaintiff Ms EEJ Welsh for the plaintiff Mr J Guihot for the first defendant Mr SE Torrington for the second defendant
File Number(s):	2010/301783

Judgment

1. Kanar Saber and her husband Omar Ali were on their way home to Liverpool late one night after an outing at Darling Harbour. Mr Ali was driving and Ms Saber was his only passenger. She was sitting in the front seat. They had reached the Hume Highway at Yagoona when another car heading in the same direction almost collided with them on the passenger side. Mr Ali took evasive action by swerving towards the centre of the road. His car hit a fence dividing the two carriageways and spun around to face the opposite direction.

2. Ms Saber was shaken up and the accident stirred up some previous physical ailments which she had, but she says that the psychiatric impact has been devastating and requires ongoing treatment. It has also, she says, significantly increased an existing need for personal care services for every day tasks.

3. So Ms Saber has sued her husband as driver of the car that she was in and the Nominal Defendant. She has sued the Nominal Defendant because the driver of the other car which was involved did not stop after the accident and has not been able to be identified.

4. Ms Saber says that the accident was the fault of her husband and the driver of the other car and that they should pay her damages. There is no issue in these proceedings that one or other or both of the drivers are responsible for the accident. But the defendants - Mr Ali, being the first defendant and the Nominal Defendant representing the driver of the other car being the second defendant - point to each other. Mr Ali says that it was all the other car's fault. The Nominal Defendant says it should share the responsibility for Mr Ali who was primarily, if not completely responsible for the accident.

5. So what I have to decide is how responsibility for the accident should be attributed and what was the injury sustained by Ms Saber and what impact, if any, it has had on her need for treatment and attendant care services.

6. Ms Saber was represented on the first day of the hearing by Mr AJ Lidden SC leading Ms EEJ Welsh. On the subsequent days of the hearing, Ms Welsh represented Ms Saber. Mr Ali was represented by Mr J Guihot of counsel and the Nominal Defendant was represented by Mr SE Torrington of counsel.

7. There were two very pertinent observations made by counsel for Ms Saber in this case. Senior counsel, in opening his case for his client, observed that the plaintiff would not be of much assistance as a witness. The second observation was made by Ms Saber's junior counsel in her closing submissions. She said that her client's case was an inorganic case, not an organic case. Those two perceptive observations have been helpful in resolving the case. The first invites me to look to witnesses other than Ms Saber for any support for her case. The second emphasises that Ms Saber places primary reliance on her psychiatric condition and the evidence about that condition.

8. The first issue which I need to resolve is the responsibility for the accident. There were only two witnesses to the accident, the plaintiff and the first defendant - Ms Saber and her husband Mr Ali. Mr Torrington argued that I might have some doubt because of the reliability of the witnesses. However I found no reason to doubt their account. Of particular relevance was that there was an account given by Mr Ali to the police at the scene of the accident which was consistent with his account which was given in the witness box.

9. Consistent with Mr Lidden's observation in opening his client's case, I place more reliance on Mr Ali's account. That is because the plaintiff was, as a witness, at times or most of the time, quite vague and unhelpful. That is because - it is argued on her behalf - of the psychiatric condition which she suffers as a result of the accident. I need to take that into account in assessing her evidence argues Ms Welsh in accordance with what Basten JA said in Mason v Demasi [2009] NSWCA 227.

10. So far as Mr Ali's evidence was concerned, I found no evasiveness or significant inconsistencies in the account which he gave and, as I say, I place some weight in assessing his evidence on the fact that he gave an account to the police at the scene, a consistent account to the police at the scene. I should briefly review the evidence which each witness gave.

11. Mr Ali said the other car came beside him in the next lane and then veered his way. He said that by avoiding an accident he hit the fence. The other car was next to his wife. He said the events happened all of a sudden. He did not see it behind him beforehand and indeed he said if he had seen it coming it would have been different but he did not see it. He acknowledged that when he did realise it was there, he saw it out of the corner of his eye and it was beside him. He said the other car did not stay in its lane, it swerved towards his car. As soon as he realised it was there and saw it, he swerved to the right. He told the police that he felt something on his left which is why he swerved to the right but he also said in evidence that he had seen it, which is why he served to the right. He said it was not in his blind spot but on his left nearest his wife.

12. Asked why he did not sound his horn or brake, he said that it was so sudden, he said that his brain stopped and that it happened very, very fast. He said he found himself in the situation where he could not go over the median strip and posed the rhetorical question, what do you do. Part of his concern was that his wife would be injured or killed.

13. It was suggested to him that he had overreacted, he did not accept that. He maintained that he was in control and had no other way to turn. He said that he had no opportunity to do anything but to swerve to the right because it has swerved towards him. For the reasons that I have already given I accept that account.

14. Ms Saber gave a broadly consistent account. She said the other car veered towards their car. She said her husband tried to avoid the accident by taking evasive action. She said it all happened very quickly and suddenly. She confirmed that the other car did not stop. She said that if her husband had not taken the action that he did, the other car would probably have hit her. She saw it actually coming towards them and she said that it came into their lane. She said it swerved, it came very close to them and in cross examination she said words to the effect of "It was going to hit us 100 per cent."

15. Mr Torrington argued that Mr Ali overreacted and should have braked or sounded his horn. He said he had been surprised by what happened and he overreacted. Mr Torrington focused on three pieces of evidence. One was an acknowledgment by Mr Ali that he felt the presence of the other car. Mr Torrington said that qualified the account that the car veered towards Mr Ali as an observation . The second piece of evidence was that it was seen only out of the corner of his eye. The third piece of evidence was that all of the events happened all of a sudden.

16. Mr Torrington argued that Mr Ali was startled by this car which he saw only out of the corner of his eye. He said that Mr Ali was negligent in acting on a perception, not a proper observation.

17. On the other hand Mr Guihot argued that his client was given no choice but to do what he did. He had to do something to avoid the accident. He acknowledged that the events occurred suddenly and if his client had not done what he did there would have been a collision. He acknowledged that there was the use of the expression "felt" but referred to evidence which Mr Ali gave in court that he also saw the other car. Mr Guihot emphasised that the relevant time to take into account is when the car swerved towards them.

18. Mr Guihot drew my attention to an authority on the question of what a defendant charged with negligence might do in the agony of the moment. He referred me to a decision of the Court of Appeal in Abdallah v Newton (1998) 28 MVR 364. In a judgment with which RP Meagher and Beazley JJA agreed, Stein JA said at over 365-366 the following:

" In Leishman v Thomas (1957) 75 WN (NSW) 173, Street CJ considered the question of whether a defendant may rely on the principle of the 'agony of the moment' in answer to a claim that he had acted negligently towards another. He stated at 175:

'This so called principle of acting in the "agony of the moment" is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is the circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easier after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort. And if, in the so called "agony of the moment", he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise'."

19. I accept Mr Guihot's submission in this regard. I accept, as I said, the evidence of Mr Ali and find that it is supported by the evidence of his wife, Ms Saber. In my opinion Mr Ali was presented with a predicament where he had to act in the agony of the moment. To the extent that on calm analysis after the event, it may be posited that he ought to have braked or sounded his horn I would regard that as not being negligent since he was not the creator of the emergency which arose. He dealt with the situation in a way which he regarded as his only choice given the potential catastrophe which may have occurred if he did not act.

20. I do not regard Mr Ali as in any way responsible for the accident and I regard the other driver represented by the Nominal Defendant as the only person responsible for this accident. In due course there will be a verdict for the first defendant and a verdict against the second defendant.

21. I turn now to the assessment of damages. Ms Welsh provided by an email sent to my chambers and copied to Mr Guihot and Mr Torrington an amended schedule of damages which I have marked for identification 9. There is no claim for non economic loss because it is not over the threshold. There are claims for past out of pocket expenses, future out of pocket expenses, past gratuitous domestic assistance and future domestic assistance.

22. However as I said, the issue of what the injury was that was sustained by Ms Saber in the accident and what impact, if any, it had on her need for treatment and attendant care or domestic assistance is very much an issue in this case and I now turn to that issue.

23. Once again I place more reliance on witnesses other than Ms Saber. I repeat, Ms Saber was vague and uncertain in much of her evidence and that is reflected in the histories which are taken by the various health professionals whom she has seen.

24. The evidence which was called in support of her case other than Ms Saber were her personal carer Ms Evin Mudaris, her son Hanna Bilbas and a psychiatrist, Dr T O Clark. In addition her husband, who was called by his counsel Mr Guihot, was able to give some evidence about her condition and its impact.

25. There is another preliminary matter which I need to refer to before reviewing the evidence about damages. Mr Lidden SC made it clear in opening his case that his client had been sent by both defendants to see two psychiatrists and those reports had not been served on his client or on his instructing solicitors. Indeed no psychiatric evidence was tendered by either defendant during the course of the proceedings. It was not in dispute that Ms Saber was sent to see a Dr Moore on behalf of the Nominal Defendant on 16 December 2010 and a Dr Bell on behalf of the first defendant Mr Ali on 10 May 2011. Nor has there been any proffered explanation for the failure to tender reports from either Dr Moore or Dr Bell.

26. In those circumstances, based upon the observation made by Mr Lidden in opening their case, Ms Welsh in closing the case relied upon what is commonly known as the Jones v Dunkel inference. In my opinion it is open to me to draw certain inferences from the absence of psychiatric evidence tendered on behalf of the defendants.

27. I have referred to Jones v Dunkel (1959) 101 CLR 298. I will refer to passages from the judgments of Windeyer J and Menzies J in formulating the inferences which I propose to draw. Consistent with what Windeyer J said over 320-321, I infer that the defendants fear to tender the reports of their respective doctors because those reports would have exposed facts or opinions unfavourable to their cases. I acknowledge in accordance with what Menzies J said at 312 that the absence of those reports cannot make up for any deficiency in the plaintiff's psychiatric evidence, but the psychiatric evidence tendered on behalf of the plaintiff - in the form of Dr Clark's evidence - in my opinion may be more readily accepted. In a sense what I have just said is the same as saying what Menzies J went on to say at that page, that the inference that the true explanation for the plaintiff's claimed inability to perform domestic tasks is an accident-caused psychiatric disability is more readily drawn because of the absence of the psychiatric reports from the psychiatrists whom the defendants arranged for the plaintiff to see.

28. I should briefly review the evidence which is relevant to the claim for damages on behalf of the plaintiff. The proceedings occurred without the use of transcript. It was agreed amongst the parties, and I accepted, that it could be conducted by the use of my notes, counsel's notes, and those of the solicitors instructing them. Hence I cannot quote exactly some words which may have been used. I have reviewed all of the evidence and, as I say, I just refer to some aspects of it.

29. Ms Saber acknowledged that she had some preexisting conditions caused by some other accidents beforehand and that she - as a result of medical conditions which she already had - had the benefit of a disability pension and a government paid carer before the accident. She said that she has been seeing a psychologist who assists her but the assistance is usually short lived and has "worn off", so-to-speak, by the time she gets home. She used to be much more sociable and mixed with her family and friends before the accident. She now has nightmares and does not sleep and does not do anything much around the house because she is always depressed. She says her carer does all of the housework. She also helps her dressing and showering. She takes medication and would like to undertake some physiotherapy but cannot afford it.

30. The disabilities for which Ms Saber got the disability pension were blood pressure, diabetes, arthritis and some back pain. She consistently claimed that any physical injuries or ailments which she had before the accident were minor and were significantly exceeded by those pains after the accident.

31. I would not be surprised if she was exaggerating in some of her claims. That may be the result of her condition. But that is one reason why I place more reliance upon evidence other than hers. She acknowledged things such as dizzy spells and panic attacks before the accident. She could not remember being diagnosed having a depression disorder many years before the accident. She said that her carer does the cooking and the vacuuming, personal assistance such as in the shower and the bathroom, and she said that the care which she requires from the personal assistant is a lot more than before the accident. She says that her personal carer also gives her personal and emotional support, and cries with her when she feels sad.

32. Ms Mudaris was a family friend. She started looking after Ms Saber some years ago and became her official carer on 9 October 2007. She was paid for that by the government. She, before the accident, regularly worked five days a week from Monday to Friday. She said that she now worked six days a week. Before the accident, Ms Saber was very happy, bubbly, sociable, always smiling. She said that Ms Saber used to cook a lot and particularly dishes which took a long time. She, Ms Mudaris, would clean, clear up, do the wardrobe, bedroom and perhaps clean up after Ms Saber had been cooking. Ms Saber would do the washing, Ms Mudaris would do the ironing.

33. Some dishes, as I said, would take some hours to prepare, which Ms Saber would do. Ms Saber would do the family meals. The family meals were often taken at lunchtime, as was the custom. Shopping was done by Ms Saber and Mr Ali. Ms Mudaris said she had never timed how much she worked before the accident. She said probably three or four hours, it depended. Although she might have been at the house for up to six hours, she probably worked up to about four hours a day. The relationship she observed between Mr Ali and Ms Saber was as a happy couple. They mixed with her sisters - that is Ms Saber's sisters - and the conditions for which Ms Mudaris became Ms Saber's carer were for asthma, diabetes, blood pressure and a little back ache. I think when I previously referred to arthritis, I should have said asthma.

34. She did not think that Ms Saber had been treated for depression. She remembered the day of the accident or shortly after, Ms Saber was crying and shaking, saying that they had had an accident. Ms Mudaris was asked to describe how Ms Saber was after the accident. She said she was always crying and depressed. She did not want to see anybody. The crying became worse and worse. She did not want to do any cooking. She did not want to get out of bed. She did not even want to watch television and wanted to be alone. She was sick of her life. She gained a lot of weight and appeared to be very depressed. She complained a little bit about back ache, but since the accident has complained a lot more about aches and pains.

35. Ms Mudaris thought that the amount of work she needed to do to help Ms Saber doubled after the accident. It had to include cooking and washing, a lot more cleaning, helping in the bathroom, particularly with showering. She helped in washing Ms Saber's hair. She was always insisting that Ms Saber took a bath or a shower because Ms Saber would not be inclined to. She was not prepared to bath or shower herself. Once again Ms Mudaris acknowledged that she had never timed how much work she did, but was sure that it had doubled.

36. Ms Saber emotionally became much worse and cried a lot. She did not want to see her children, her husband or her sisters. She did not want to see anybody. She and her husband shared a bedroom before, but Ms Mudaris said that Ms Saber had kicked him out and he was required to sleep in another room, and they were always arguing and that she got very, very angry. This was since the accident. She sees her crying regularly throughout the course of the day.

37. She was crossexamined by Mr Guihot. Ms Mudaris became, it seems to me, a little confused about the number of hours that she used to work and the number of hours that she still worked or worked since the accident, but remained very clear that the amount of work which she had to do had doubled. She said that they would sometimes sit together. It was hard to estimate how many hours she did every day; it would depend upon the day. The cleaning might include wardrobes, kitchen, washing the carpet sometimes. She acknowledged that the presence of one of Ms Saber's sons made the house particularly messy or at least the area which he occupied, and she occasionally tidied up after him.

38. As I say, she said that the amount of assistance doubled and the care which she is required to give after the accident has doubled. She said that she has to cook, wash dishes, do the laundry, shower and bath Ms Saber, including doing her nails, brushing her hair and cleaning her ears and other personal matters. She said she does everything for her and a lot more cleaning. She said she now cleans everything and she cooks for all of the family. She realised that Mr Ali also had a carer as well because of a disability which he has.

39. Crossexamined by Mr Torrington for the Nominal Defendant, he put to her whether Ms Saber can do the laundry or carry a laundry basket if it is under a particular weight, or able to hang clothes or do some ironing or lift loads under five kilograms, or push or pull a small shopping trolley, or clear out the bathroom or make the beds. Ms Mudaris said no, that Ms Saber could not do that. It was put to Ms Mudaris that for a short period of time Ms Saber may have had some restrictions and inabilities, but it only lasted a short period of time, a matter of weeks, and in response Ms Mudaris said no, Ms Saber has become depressed and does not want to do anything. She said she does what is asked without testing Ms Saber.

40. Mr Bilbas, who was Ms Saber's son, is the second youngest child and is married himself with two children. He lived at home until he was married in 2006. He used to see his parents a couple of times a week before the accident and share their meals. His mother used to prepare the meals. She used to visit their home regularly. She used to visit her own siblings. She always had a smiling face, she was never upset. She used to look after things, such as cooking and cleaning, and did the housework when he was at home. He said that before the accident Ms Mudaris used to help, but not to the extent that she helps now.

41. After the accident he described his mother as getting upset and very depressed and not feeling happy and not wanting to talk. It was not like before. She changed over a couple of months. The cooking did not continue. She became like a different person. She was not like before. She did not want to see anybody. Before, his parents were like a normal couple and now they were not like before in their relationship. Now he said Ms Mudaris does everything, cleaning, vacuuming, dishwashing and cooking. He thought that she seemed to help up to eight hours but sometimes less. He thought that his mother had not really improved at all.

42. Mr Bilbas described, in cross-examination by Mr Guihot, his mother as very tired. Asked about her medication he regarded that as personal and he does not ask her questions about the medication which she takes. He said he does not want to see her now as much because it hurts him to see her like she is. There are no family get-togethers. She screams a lot, she does not want to see anyone.

43. Cross-examined by Mr Torrington, he described the family as split apart. She cannot prepare a simple meal. Once again Mr Torrington put to him a series of specific questions about whether Ms Saber could mop or do some light duties or lift a basket and he said that he did not think she could. She was always crying and not very happy. He said it seems that his father has had enough.

44. When called by Mr Guihot, Mr Ali gave evidence about the accident. He was cross-examined but in a manner akin to giving evidence in chief by Ms Welsh because her client's interests were consistent with Mr Ali's interests. He said he wife used to look after him but now another person needs to who is his carer. She makes the bed and irons the clothes and does the washing. He is not sure how long she has been with him, but perhaps a year or two. He had health issues. Before the accident his wife used to be able to cook and do a lot around the house. The carer helped with things like vacuuming and washing. The issues which required his wife to have a carer beforehand included her blood pressure, asthma and diabetes. She did not complain much about her physical disabilities. She managed herself. They did not have relationship problems before the accident and they socialised a lot, especially enjoying the grandchildren.

45. He acknowledged that his wife had been treated for depression when they first came to Australia in the late 1990s but that had not lasted very long. He said that in the accident his wife immediately screamed and she was screaming and shaking. It appeared that she had had a bad shock and in the days following she complained of backaches and headaches and aches in her knees and shoulders. Asked what her psychological condition was after the accident he said it was like she had a nervous breakdown in addition to her physical pains. She stayed at home, she could not do the household chores, she did not cook like before. It seemed that she had become very very frightened by the accident, it was a big shock. Since the accident their relationship has been getting worse day by day. Compared with beforehand Ms Mudaris needed to do more. She needed to do things like cooking and more cleaning and washing, everything which was required to be done in a household Ms Mudaris now had to do except those things which his personal carer attended to. Ms Mudaris also attended to his wife's personal needs.

46. His wife cries a lot. He said that they are not a big family anymore. His wife does not want to see anybody anymore and she has not been normal since the accident. Mr Torrington asked him a few questions about his wife's condition but focused mainly on the car accident. He emphasised that Ms Mudaris does all of the work, that now that he could not vacuum or mow lawns.

47. Both Ms Saber and Mr Ali were asked by Mr Torrington about interviews which were conducted by occupational therapists who were sent to their house in the interests of her case and in the interests of one of the defendant's cases. They both acknowledge - or at least Ms Saber acknowledged - Ms Mudaris, her personal carer, was not to be there. She said that she did that because she regarded the matter as personal and was nothing to do with her. Mr Ali was also cross examined by Mr Torrington about what appeared to be inconsistencies in the histories taken by one or other of the occupational therapists with his account. These especially concerned things which he might or might not be able to do around the house. He acknowledged that for one of the sessions, there was no official interpreter and wonders whether the translation might have been erroneous.

48. Dr Clark provided two reports. In those reports he diagnosed Mrs Saber as having a post traumatic stress disorder with a consequent depressive reaction with melancholic features as a result of the accident. He said that her disabilities render her "depressed, anti-social and irritable". His prognosis was uncertain. He gave assessments of her psychiatric impairment using the psychiatric impairment rating scale and indicated in most categories that her impairment was moderate.

49. Dr Clark provided an updated report dated 17 August 2011. His diagnosis and prognosis remained the same. He gave an estimate of the future need for treatment and medication.

50. Dr Clark was called to give evidence. He had sat in court during the evidence of Ms Mudaris, the carer. This was important so far as the plaintiff's case was concerned because it became apparent that Dr Clark was not supplied with certain information about Ms Saber's past medical conditions. In particular, he was not told about a previous diagnosis of a significant depression for which she was treated in the late 1990's and early 2000's.

51. Asked whether anything in her pre accident psychiatric state altered his opinion about her post accident condition, he said no. He said that her emotional and psychiatric state which he heard described by Ms Mudaris fitted with the diagnosis of a major depressive disorder. He would now regard his prognosis as poor. He based this upon the opinion that there had been no improvement at all despite a quite substantial amount of treatment, both in the form of psychological support and antidepressant medication.

52. The ways in which Ms Saber was affected were that she was fatigued, she lost interest in life, she was losing much of her executive function, she lost motivation and tendered to lie around. Dr Clark said these fitted all the criteria for impairment as a psychiatric impairment. He took into account her physical complaints but his main area was psychiatric and he said that her disability was all psychiatric.

53. Cross examined by Mr Guihot, Mr Clark acknowledged that his diagnosis took into account not just the history but his own expertise as well. He said that Ms Saber had all of the symptoms of a major depressive condition. He acknowledged that he had not been provided with any psychological information about any psychological or psychiatric condition before the accident. He acknowledged that the longer Ms Saber experienced symptoms, the less certain the prognosis or less favourable the prognosis would be.

54. However when cross examined specifically about previous conditions which she had been diagnosed with, Dr Clark said that, in his opinion, what was relevant was the psychiatric impairment rather than the symptoms. The symptoms may be normal and be managed but it was the impairment which was more important and produced disability. He said that there was no disability beforehand - or significant disability - despite the symptoms. He noted that Ms Saber was sociable, mixed with her family and was personal before the accident. He noted the overall history of a person engaged in a relationship with her husband, her children and her grandchildren. He acknowledged that she was a very vague historian, which is consistent with the findings which I have made.

55. The diagnosis which she had previously been given was of a major depression in the late 1990's or early 2000's. But once again he emphasised that there seemed to be a very significant change in her behaviour since the accident. There was what he described as a gross change in behaviour compared with the descriptions of her before the accident. Those descriptions of her before the accident and her gross change of behaviour brought about what he described as swinging his opinion.

56. Dr Clark emphasised again that what he was looking at was impairment, not diagnosis and the degree of impairment. He said there was now quite a gross amount of impairment and the importance was not the subtleties of diagnosis, but the extent of her impairment.

57. Cross-examined by Mr Torrington, Dr Clark acknowledged that his prognosis was now guarded and would probably be fairly poor.

58. In re-examination, Dr Clark acknowledged that in assessing Ms Saber's pre and post accident state, the view or impressions of the family and carer were very important. The person's own view may not be very helpful. He thought that any psychiatric condition which she had beforehand appeared to be well managed with minimum impact.

59. Mr Torrington drew my attention to the two reports from occupational therapists. One was Peter Williamson, who provided a reported dated 14 July 2011. The other was Kiran Chugh, who provided a report dated 1 March 2011. It was Ms Chugh whose attendance was arranged on behalf of the plaintiff. Mr Torrington placed a lot of emphasis on the fact that the carer was not asked to attend the sessions, but indeed was asked not to attend these sessions. He also drew attention to inconsistencies in the accounts given by the occupational therapists, in particular Mr Chugh, based upon her observations about what Ms Saber could and could not do physically.

60. It is important to note, however, that Ms Chugh a number of times specifically deferred to a psychiatric opinion regarding any psychiatric condition which Ms Saber had. She said at p 14 that "the treating psychiatrist is best qualified to determine the prescriptive additional needs for attendant care for person self care activities for Ms Saber ". That was after she had observed that Ms Saber requires assistance with her personal care activities due to her psychological issues. She acknowledged the findings which Dr Clark had made.

61. Mr Torrington also emphasised the fact that the carer was absent, as well as the observations that were made by the occupational therapists. He was right about inconsistencies appearing between what the occupational therapists said Ms Saber could do and other evidence. That is because, in my opinion, the primary focus of the occupational therapists, specifically Ms Chugh, was upon Ms Saber's physical capacity, whereas what the witnesses described her as being able to do and not do at home presents a picture of a person who is psychiatrically very seriously disabled. That picture is confirmed by the evidence of Dr Clark.

62. Ms Saber frankly acknowledged that she told her carer not to come to the interviews. She said the reason was that that was a personal matter. I do not think that that was in order to deceive anyone. There was open discussion about the carer and what the carer did between Ms Saber, her husband and the occupational therapists. They regarded it as their personal business. The existence of a carer was not hidden from the occupational therapists. In my view, if an interview with the carer was a factor which would significantly affect the assessment of the occupational therapists, one would expect a comment to that effect to appear in the reports.

63. Mr Torrington emphasised the material which Dr Clark did not originally have. But it seems to me that what must be assessed is Dr Clark's opinion in light of the observations he made or the evidence which he heard as he was sitting in Court and the various matters which were put to him in cross-examination. It seems clear to me that he painted a picture of someone who was severely psychiatrically disabled as a result of the accident. That picture is easier to draw because of the absence of any report tendered on behalf of the defendants, given that I know that they both referred Ms Saber to psychiatrists to be assessed.

64. Mr Torrington emphasised the fact that the occupational therapists actually observed Ms Saber being able to do certain activities. This is true and is an example of an inconsistency. But in my opinion, the condition which is significantly disabling for Ms Saber is the psychiatric condition and the consequent disability which have been diagnosed by Dr Clark.

65. I do not accept Mr Torrington's submission that the need for domestic assistance is one for the expertise of the occupational therapists or other opinion. I accept the clear accounts given by Ms Saber's son and her carer respectively; they clearly indicate a significant change in the condition of Ms Saber after the accident, and non-participation by her in any significant domestic activities. That non-participation is explained by Dr Clark as a result of his diagnosis.

66. I accept the submission made by Ms Welsh that the main areas of domestic assistance are in the areas of cooking, washing, personal care and some shopping.

67. Ms Welsh put a series of propositions to me at the commencement of her address. I accept these propositions. Her client did not suffer a psychiatric illness before the accident which affected her ability to undertake personal domestic tasks. Her client suffered from some physical problems which affected her ability to undertake domestic tasks beforehand. The result of that was the provision of a carer in conjunction with a pension. The experience of the accident was a life threatening experience and Ms Saber suffered a severe psychological or psychiatric reaction. I accept Dr Clark's diagnosis - she suffers from an ongoing condition consistent with Dr Clark's opinion. That condition is the reason why Ms Saber requires a additional assistance in domestic tasks since the accident and the reason why she needs additional assistance for personal care as well.

68. I now turn to an assessment of the damages which should be paid by the second defendant to the plaintiff. The past out of pocket expenses were mathematically agreed but I now regard the second defendant as responsible for paying them in the sum of $2,967.40.

69. So far as future out of pocket expenses are concerned, I consider first the need for psychiatric or psychological treatment. Dr Clark thinks that her prognosis is poor. He provided in his later report of 17 August 2011 - which appeared in exhibit K - an estimate for the cost of psychiatric treatment. That treatment in my opinion is likely to occur. I would regard two years as being an appropriate period. It might be more but it is difficult to say. In accordance with Dr Clark's estimate, I would regard it as being needed every two or three weeks. I would regard overall forty sessions as being appropriate and would allow an amount of $16,000 for future psychiatric or psychological treatment. Dr Clark estimates for future medication an amount of some $400 a week but some of that would be covered by the Pharmaceutical Benefits Scheme. I do not accept the claim of $5,000 but I would regard an amount of thirty five dollars a week for twice as long as the period of therapy - say for four years -as being appropriate and I think an appropriate figure for future medication would be $1,700.

70. I do not regard provision for any physiotherapy or hydrotherapy as needed because any ongoing disabilities and physical ailments which might require physiotherapy or hydrotherapy as a result of the accident have ceased in my opinion.

71. So far as past gratuitous domestic assistance is concerned, the evidence from Ms Mudaris is that she never timed the amount of time spent by her but she used to do three or four hours a day, but now does eight hours a day. She used to do five days from Monday to Friday but now does six days from Monday to Saturday. I would regard an extra three hours a week as reasonable but I would not count Saturday because I need to make allowance for routine assistance given by Ms Mudaris to Ms Saber which should not be paid for by the second defendant. I would regard an appropriate amount for past gratuitous assistance as $50,000. That is roughly based on three extra hours a day for five days a week at twenty four dollars per hour for 2.7 years for say fifty two weeks and the figure, as I say, is $50,000.

72. For future domestic assistance I think the gratuitous domestic assistance provided by Ms Mudaris is a product of the special relationship between the two families. I do not think it is likely to go on - given that Ms Mudaris is in her early twenties - for more than another five years. In her calculations Ms Welsh suggested that there should be a discount of some twenty five percent in the amount allowed for the weekly number of hours. I would reduce my estimate of fifteen hours addition a week to eleven hours a week and for the period of five years from now I would allow eleven hours a week at twenty four dollars an hour, applying a multiplier of 231.5 in accordance with MFI 9. The figure that I would accept as appropriate is $60,000.

73. After that 5 years, commercial care would be required for twenty six years which would be the balance of the estimated life span of Ms Saber. That should be deferred for five years. Once again the number of hours should be eleven hours a week, the rate should be forty dollars, the multiplier should be 768.7 as estimated or provided for in MFI 9 and it should be discounted by 0.784 because of the five year deferral. That produces a figure of just over $265,000 which I would reduce to $250,000. These are discounts which I apply because it may well be that Ms Saber responds to treatment and the conclusion of this case in a positive way and recovers before the end of her natural anticipated life.

74. Accordingly the figures are these which I have calculated and I ask the legal representatives to check. Past out of pocket expenses $2,967.40, future psychiatric or psychological treatment $16,000, future medication $1,700, past gratuitous domestic assistance $50,000, future gratuitous domestic assistance for five years $60,000 and domestic assistance on a commercial basis after five years for the balance of Ms Saber anticipated life $250,000 which produces a figure I hope of $380,667.40.

75. There is one finding I should add, so far as the negligence of the second defendant is concerned. I specifically find in accordance with the statement of claim that the driver of the other car failed to heed the presence of Mr Ali's car and attempted to change lanes when there was neither time nor space to do so and failed to give way, when it should have, to Mr Ali's vehicle. Alternatively that driver failed to steer, control or properly manoeuvre that driver's car.

76. So I enter a verdict in these proceedings for the first defendant. I enter a verdict for the plaintiff against the second defendant in the amount of $380,667.40. I enter judgment for the first defendant and judgment for the plaintiff against the second defendant in that specified amount.

HIS HONOUR: Now is that the sort of order that I am meant to make Ms Campbell?

CAMPBELL: Yes that's my understanding your Honour and there will need to be orders for costs.

HIS HONOUR: All right when you say orders for costs, you will be seeking costs against the second defendant, what do I do with the first defendant?

SOFOULIS: Your Honour I do not make any submissions in relation to costs as being the plaintiff and the second defendant but I would make submissions that the second defendant ought to pay the first defendant's costs.

HIS HONOUR: What do you say to that Mr Bourke?

BOURKE: Your Honour I argue that a matter of substantive issue had to be argued amongst the two defendants and it was a case that needed to go through the process.

HIS HONOUR: Yes, do you want to say something?

SOFOULIS: Yes can I just add, throughout this matter the second defendant's run, if I can characterise it as, a positive case against the first defendant from pleadings onward and to that extent we say our costs should be paid by the second defendant.

HIS HONOUR: And Mr Sofoulis your focus was on the accident wasn't it. I think you had very little to do with the damages didn't you, there were a few questions, a few areas I think but--

SOFOULIS: There were your Honour I think Mr Guihot cross-examined Dr Clark from recollection.

HIS HONOUR: Yes that's right.

SOFOULIS: And the plaintiff's carer but Mr Torrington of course did the final addresses on damages.

HIS HONOUR: Yes. So you are saying Mr Sofoulis that the second defendant should pay your costs and you are saying Mr Bourke that it should be each party pay their own costs?

BOURKE: Correct.

HIS HONOUR: Because it was a fairly contested matter.

BOURKE: Correct.

HIS HONOUR: And you do not mind Ms Campbell?

CAMPBELL: No your Honour.

HIS HONOUR: Provided you have your costs paid.

CAMPBELL: That's correct.

77. Well one order I make is that the second defendant to pay the plaintiff's costs of the proceedings as agreed or assessed. I think Mr Bourke has a point as it was an issue which required testing of the plaintiff and her husband, so in my opinion each defendant should bear its own costs.

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Decision last updated: 25 October 2011