Kilani v Aluabaid
[2021] ACTSC 90
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Kilani v Aluabaid |
| Citation: | [2021] ACTSC 90 |
| Hearing Dates: | 10 May 2021 – 12 May 2021 |
| Decision Date: | 14 May 2021 |
| Before: | Elkaim J |
| Decision: | See [108] |
| Catchwords: | CIVIL LAW – NEGLIGENCE – Motor Vehicle Accident – Stolen vehicle – onus of proof – attack on plaintiff’s credit |
| Legislation Cited: | Court Procedures Rules 2006 (ACT), r 407 |
| Cases Cited: | Nguyen v Tran [2018] NSWCA 215 Jones v Dunkel [1959] HCA 8; 101 CLR 298 |
| Parties: | Adam Kilani (Plaintiff) Nashaat Hamid Aluabaid (First Defendant) |
| Transport Accident Commission – Victoria (Second Defendant) | |
| Representation: | Counsel |
| W Sharwood (Plaintiff) | |
| W Fitzsimmons SC (First and Second Defendant) | |
| Solicitors | |
| Gabbedy Milson Lee (Plaintiff) | |
| Moray & Agnew Lawyers (First and Second Defendant) | |
| File Number: | SC 227 of 2020 |
| ELKAIM J: | |
| Background |
1. The plaintiff is suing the defendants for damages arising from injuries he suffered in a motor vehicle accident on 8 October 2018. The offending vehicle was owned by the first defendant and insured by the second defendant. The driver was apparently a thief who had stolen the vehicle the day before. Despite this, the defendants remain
liable for the driver’s actions.
2. The plaintiff was born in Iraq 1984. After spending some time in Jordan he came to Australia in 2006. His father was already living here. The plaintiff first spent some time in Sydney and then moved to Canberra in 2007. He performed assorted types of employment including being a cleaner, working part-time in a restaurant and working at the Saudi Arabian Embassy in an administrative position.
3. In 2010 the plaintiff returned to Iraq for about six months. While in Iraq he was married. He returned to Australia in 2011 and initially spent about a year in Sydney. He then returned to Canberra with his wife. They now have two children.
4. The plaintiff, in about 2016, started to work for a man called Saran who ran a business called Precision Painting. The nature of the business was to contract for and perform painting work.
5. In December 2017 the plaintiff bought the business from Saran. The business came with an office, some tools and a motor vehicle.
6. The plaintiff was healthy prior to the accident. The damages he alleges fall under the heads of general damages, past and future economic loss, past and future domestic care and medical expenses. Prior to the hearing commencing, the parties agreed on future economic loss and past and future domestic assistance.
7. The plaintiff’s alleged injuries relate to his low back and his right shoulder. The
defendants challenged the extent of his injuries and also raised a causation issue in
respect of the right shoulder.8. The defendants put the plaintiff to strict proof of his claim. According to the
defendants the plaintiff’s credit was of such little worth that he could not “be believed
on anything he says” (Transcript page 134).9. This attitude to the plaintiff’s claim extended to liability. What was an apparently
straightforward rear end collision was comprehensively questioned. Despite this approach the defendants chose not to plead fraud, as they were required to do under r 407 of the Court Procedures Rules 2006 (ACT). While the defendants were entitled to call on the plaintiff to prove his case, they ultimately adopted a liminal position somewhere between conceding there had been an accident and denying there had been an accident, as alleged.
10. The plaintiff’s credit was strenuously attacked, the device being to not only reduce his
damages but to reach a position where his credit was so depleted that his evidence
on the accident could not be accepted.11. There was substance in the attack on the plaintiff’s credit. This became readily apparent during his cross examination on his economic loss. The plaintiff’s past
economic loss was originally styled as a loss of $2,480 per week, said to have been
established through payslips which appear from Tab 22 of Exhibit A.12. These payslips, it transpired, were not genuine, but had been prepared by an unknown person to assist the plaintiff in obtaining a loan. The fact he did not proceed with the loan is of little relevance to his credit.
13. The payslips are entirely inconsistent with his tax returns which reveal a significantly lower figure of annual income. According to the tax documents the plaintiff had a taxable income for the year ending 30 June 2018 of $56,485. This figure is consistent with the profit and loss statement which shows an income of $75,909 and expenses of about $20,000. If the payslips were genuine the income would have been in excess of $120,000.
14. There must also be some doubt about the reliability of the figures in the profit and loss statement. The plaintiff said he earned his income in one of two ways. He would either provide labourers to another business and receive, in effect a commission, or he would do the work himself. As to the former method, an invoice book was tendered by the defendants. The plaintiff was asked to explain why the invoices said to have been provided to a Mr Ali of the Ready Group remained in the book. Somewhat unconvincingly the plaintiff said that if Mr Ali required an invoice he would take a photograph of it on his telephone.
15. Perhaps in favour of the plaintiff, the inside of the invoice book contains what he described as an estimate of his after-tax earnings. These figures do roughly correlate with the profit and loss statement.
16. The significant credit issue is not so much the reliability of the income as shown in the
profit and loss statement (or the tax returns) but rather the plaintiff’s reliance for his
claim on the obviously inflated payslips.
17. Yet another estimate of his pre-accident earnings can be found in Exhibit 4 where a different profit and loss statement suggests that the gross business income up to 1
July 2018 was $55,525 and the director’s fees (essentially the plaintiff’s income) was
$47,658.
18. The most bizarre element of the plaintiff’s financial documents arose from a number
of purchases, by credit card, of goods from a Bunnings store and then a credit, on the same day, of the same or very similar amount at a different Bunnings store. Perhaps there is a reasonable explanation for these transactions. But the plaintiff certainly did not provide such an explanation. His speculation that his brother might have been responsible was far from convincing.
19. The attack on the plaintiff’s credit moved from economic loss to the history of the
vehicle which he was driving when the accident occurred. It was an Audi A8 which
was registered in the name of the plaintiff’s father. It had been purchased, for cash, in
Victoria. The purchase price seems to have been somewhere between $17,000 and
$20,000. The plaintiff had travelled to Victoria to effect the transaction.20. Following the purchase, the vehicle was driven back to Canberra where it was necessary to register it in the ACT. This process involved a market value being attributed to the vehicle. The relevant forms indicate that this value was stated to be $10,000. The vehicle was insured with the NRMA. The insured sum was $38,000. It takes little imagination to conclude that the minimisation of the market value was designed to reduce Territory revenues and the high insured sum was to cater for a maximum return if the vehicle was destroyed or stolen.
21. If there was a scheme to avoid taxes and defraud the NRMA these would amount to a significant impingement on the credit of the person endeavouring to achieve these ends. The evidence does not allow me however to conclude that the plaintiff was the responsible party. It could equally have been his father, the owner of the vehicle.
22. Perhaps more significantly, despite concerns and suspicions on the part of the NRMA, and consequent investigations, the plaintiff received $37,000 pursuant to the policy on the vehicle.
The accident
23. The accident is said to have happened in this way: The plaintiff, on the afternoon of 7
October 2018, a Sunday, went to the McDonald’s outlet at Braddon in the Canberra
CBD. His intent was to purchase McDonald’s products to take home to his family.24. At McDonald’s the plaintiff encountered, by coincidence, a friend by the name of Jaffa
Sadaq. This man had also done some work with the plaintiff in the painting business. Mr Sadaq, who lived in Tuggeranong, told the plaintiff that his circumstances were domestically unstable and he had resolved to travel to Sydney.
25. Although the plaintiff was questioned about the reasons for visiting McDonald’s in Braddon, as opposed to a closer outlet, the balance of the plaintiff’s description of the
events of the evening up to, but not including, the collision, were not challenged.
26. The defendant’s written submissions suggest there may not have been a ‘friend’
encountered before the accident. While it is correct that the plaintiff had to prove his case, if the defendant was seriously going to submit that there was no friend that proposition should have been put to the plaintiff.
27. As to the adverse inference that the defendants said should be drawn from the absence of the Mr Sadaq as a witness (derived from Jones v Dunkel [1959] HCA 8; 101 CLR 298), there was no evidence of his availability. Further, the obviously extensive efforts of the defendants to unearth every bit of background to this accident do not seem to have included talking to Mr Sadaq. While in one sense he is in the
plaintiff’s ‘camp’ he is an independent person who could easily have been
approached by the defendants. I decline to draw the inference requested by the
defendants.28. In relation to McDonald’s the defendants tendered a summary of credit card purchases at this fast-food outlet. The intent was to show that the plaintiff’s evidence
that he paid cash on 8 October 2018 was not believable. I reject this suggestion. The plaintiff said he paid cash on occasion. The suggestion that any number of purchases using a credit card means cash was never paid is an unsustainable quantum leap.
29. Returning to the events of the evening, the plaintiff thought his friend’s departure for
Sydney was an unnecessary reaction and persuaded his friend to remain in Canberra. He offered to meet his immediate accommodation requirements by providing him with the use of his office in Fyshwick. The office was furnished with a lounge and had a toilet.
30. Mr Sadaq was persuaded and accompanied the plaintiff back to the plaintiff’s home in Red Hill. Once at home the plaintiff gave his family the McDonald’s produce and
asked his wife if she could cook some food for Mr Sadaq.
31. The plaintiff then drove Mr Sadaq to the office in Fyshwick where he settled him in and then returned to Red Hill. The plaintiff took the food that his wife had prepared and returned to the office.
32. Mr Sadaq then had a change of heart and decided that his best course of action was to return to his own home in Tuggeranong. He asked the plaintiff to take him to this location.
33. The plaintiff obliged and then, at about 1:00am was returning home following a route that took him in a northerly direction along Mugga Lane. There was no suggestion that Mugga Lane was not on a logical route for the plaintiff to have followed in traveling from Tuggeranong to his home.
34. The plaintiff noticed a vehicle that was driving very fast and closely behind him and had its lights on high beam. He could not immediately pull over but did so when an opportunity arose. He brought his car to a stop in a position partly encompassing a bicycle lane. This can be seen in the photograph at pages 39 to 41 of Exhibit 1.
35. Instead of overtaking him, the other vehicle collided with his rear, causing the damage that can be seen from page 44 of the same exhibit.
36. Not content with having caused the accident, the driver of the other vehicle, which it transpired was a Toyota Prado, a large four-wheel-drive, then decamped from the scene. The plaintiff however was able to photograph, with his mobile phone, the departing Toyota.
37. The plaintiff later telephoned 000 but was told that his circumstances did not meet the emergency requirements of this line and he should report the matter to the local police station. He did so but initially confused the registration number of the Toyota. When he corrected his mistake the police were able to identify the vehicle as belonging to the first defendant and that it had been reported as stolen the day before the accident.
38. The discovery that the vehicle had been stolen is consistent with its driver leaving the scene of the accident.
39. Notwithstanding the damage to the Audi, the plaintiff was able to drive it home. It was
later ‘written off’ by the NRMA. The plaintiff did not tell his father about the accident
because his father was overseas. However his mother informed her husband when
she found out.40. The defendants relied upon a reconstruction expert, Mr Urquhart, whose report is dated 31 March 2021. Mr Urquhart was not cross-examined so it would be a denial of fairness to him if my comments on his report were overly critical. Nevertheless I am concerned that the report has, at least, an air of conclusions being reached on the basis of surmise and speculation. There is also a distinct emphasis on exactitude to defeat estimates given by the plaintiff of such matters as speed and the distance that he was pushed forward after the collision.
41. The Toyota was located some time after the accident and inspected. The NRMA inspection report includes this passage:
I have inspected the Audi on Wednesday, 6 February 2019, Toyota on Thursday 7 February 2019 and collision location on Wednesday, 6 February 2019. The following is my initial opinion:
There are vertical scratches to the rear bumper cover, boot lid and Passenger side rear quarter panel of the Audi that indicates the vehicle has undergone a rear to front impact, which is consistent with the collision circumstances. The damage profile to the rear of the Audi is biased towards the Passenger side of the vehicle, which is unusual given the
diver’s version of events, where they were stopped on the left side of the road. The Driver’s
side rear tyre of the Audi displayed insufficient tyre tread depth, which is considered to be unroadworthy, but is unlikely to have contributed to the collision due to the Audi being stationary at the time of collision. There are vertical scratches to the front bull bar of the Toyota that indicates the front of the vehicle has undergone a front to rear impact, which is consistent with the scratched profile on the rear of the Audi and is consistent with the collision circumstances. The damage to the front of the Toyota is biased towards the
Driver’s side of the vehicle, which is consistent with the damage profile to the rear of the
Audi and consistent with the circumstances. The Toyota is compatible with the Bosch CDR
kit but as the key was not present at the time of the Author’s inspection, the data from the
Airbag Module of the Toyota could not be extracted. There were no obvious collision marks observed at the collision location (approximately 4 months after the collision occurred). The Author expected debris attributable to the Passenger side tail light cluster but this could have been swept away by passing traffic. At this point, the forensic evidence indicates that the Audi and Toyota have impacted each other in a manner that is consistent with a collision between two vehicles and consistent with the collision circumstances.
42. It is apparent from the report that the inspector has noticed that the damage to the
Audi “is biased towards the Passenger side of the vehicle, which is unusual given the driver’s version of events, where they were stopped on the left side of the road”. However he continues a little later: “The damage to the front of the Toyota is biased towards the Driver’s side of the vehicle, which is consistent with the damage profile to the rear of the Audi and consistent with the collision circumstances”.
43. Immediately following his quotation of the report Mr Urquhart has inserted a note. It reads:
Unfortunately the report extract is missing key information regarding the Toyota’s condition
and there were no accompanying vehicle inspection photographs. The report extract is
therefore of limited value in assessing the circumstances of this case.44. I find this note to be quite extraordinary. It has the hallmarks of ignoring useful
information because it does not agree with the author’s opinion.
45. Nevertheless Mr Urquhart seems to draw from the report when he states:
The damage to the Audi is consistent with an offset impact to the near-side with a near 50% overlap. The damage is consistent with the rear-end collision with a vehicle fitted with a bulbar.
46. Despite the apparently speculative approach I have referred to above Mr Urquhart states:
The author considers it likely that the Toyota collided into the rear of the Audi in a configuration similar to that depicted in Figure 1.
47. Figure 1 appears at page 24 of the report and essentially shows the Toyota colliding with the Audi directly from behind but offset to the left.
48. Mr Urquhart ultimately expresses scepticism about the plaintiff’s version of the
accident. This scepticism seems to be derived from the following:
(a)
The configuration consistent with the position of the vehicles on impact (Figure 1) should have resulted in a degree of rotation of the Audi. In other words, because the impact was to its rear left side there should have been some rotation of the whole of the vehicle towards the right.
(b)
Another aspect of the configuration is the Toyota striking the left side of the Audi when an overtaking manoeuvre is more likely to have resulted in a collision with the right side of the Audi.
(c)
The numerous references by the plaintiff, in medical histories and in a record of interview with an NRMA investigator, to the effect that the Toyota had been travelling at a very high speed (around 80 km/h) could not have been correct because of the absence of rotation, the degree of damage suffered by the Audi and the fact it only moved about a metre forward following the impact. The more likely speed at impact was closer to 20 km/h and not more than 40 km/h.
(d)
There is an absence of debris shown in the photograph of the rear of the Audi (Figure 7). The damage to the Audi should have left debris behind the vehicle.
(e) The location where the plaintiff stopped was “highly unusual given its close proximity to the major intersection some 60 m ahead where the roadway is
substantially wider, well-lit with a number of alternatives for travel”.
(f) The plaintiff’s estimate of having been pushed forward by 1 metre must have been wrong because the plaintiff said the Toyota did not reverse after the collision. Mr Urquhart found out the turning circle of the Toyota and concluded that it would have had to reverse before it could move to the right of the Audi. This conclusion is represented in Figures 5 and 6 of the report.
(g) Time and motion studies show that the plaintiff’s description of the accident was incompatible with the braking distances of the vehicles (page 36 of the
report).49. In addition to the above it was also put to the plaintiff that there were many safer locations to pull over than that which he chose.
50. Before examining the assorted points of criticism levelled at the plaintiff’s case I make
the following observations:
(a) The plaintiff’s case as pleaded is simple. It says no more than that the plaintiff was driving towards Red Hill on Mugga Lane when the Toyota collided with the rear of his car. It continues that after the collision the Toyota left the scene.
The particulars of negligence are what might be described as ‘standard’ and
include failing to keep a proper lookout and failing to pay proper care and attention whilst driving. Driving into the rear of the Audi was unquestionably an act of negligence on the part of the driver of the Toyota.
(b) Notwithstanding the defendants’ success in attacking the plaintiff’s credit in respect of his economic loss, and accepting that the effect on his credit could
be ‘transferred’ to his evidence on the accident, I nevertheless formed a much
more favourable view of the plaintiff’s evidence in respect of the accident.
51. Turning now to the assorted bases for scepticism of the plaintiff’s version, I make the
following comments:
(a) The circumstances leading up to the collision were such that the plaintiff was put in a position of being harassed by the Toyota. A good deal of the defendants’ attack depended on him acting rationally when confronted with the
marauding vehicle. It is all very well to suggest there was a safer place to stop or a better estimate of speed might have been made, but these are conclusions that rely on hindsight. The plaintiff did not have the benefit of observing the speed of the Toyota over any particular distance. The plaintiff was driving on a dark road without the benefit of well-lit areas along the side of the road. It was never put to the plaintiff that he was familiar with the area through which he was driving.
(b) Mr Urquhart is probably correct in his estimates of speed. But as I have said the plaintiff’s appreciation of speed would have been significantly impaired by
the circumstances in which he found himself. And if Mr Urquhart is correct about the speed of the Toyota then the movement of the Audi by only about a metre and the lack of rotation are consistent.
(c)
The same applies to the turning circle issue. Mr Urquhart’s approach is dependent on the accuracy of the plaintiff’s estimate of how far he moved
forward. To expect, in the circumstances of this accident, any such accuracy is
unrealistic and indicative, as I’ve said above, of an approach which places
technical exactitude above realism.
(d) Again, in relation to the breaking times and distances, Mr Urquhart’s calculations are based on estimates of speed and time, none of which can be
considered or expected to be reliable.(e)
The plaintiff said under cross-examination that he had not moved any debris off the road. But he also said that his memory was better when he gave the record of interview to the NRMA investigator. In this interview, conducted about 10 weeks after the accident, the plaintiff said, at page 34:
Q. 483 And were the pieces of your car come off on the road, glass?
A. Yes there was glass and things but just I try and push. Q. 484 You pushed it off?
A. Yes this way. Q. 485 Right. Might be still there.
(f) Mr Urquhart in commenting on debris uses a photograph taken at night to reach conclusions about glass on the road. (g) As to the hit on the left side of the Audi, this is seemingly unusual, but not necessarily inconsistent with the haphazard driving style that had been demonstrated by the Toyota in harassing the plaintiff. 52. Overall, Mr Urquhart’s approach leaves the scene of an apparently obvious rear end
collision and delves into a mathematical examination of speeds, times and distances, all of which are speculative and incapable of creating the assorted doubts reached by Mr Urquhart.
53. Despite hovering on a suggestion of fraud, the allegation was never actually put.
Rather a concentrated credit attack was said to render the plaintiff’s evidence
unbelievable. The defendants suggested there was a concatenation of facts which
simply could not have occurred, thus rendering the plaintiff’s version incapable of
acceptance.
54. I accept that the onus was always on the plaintiff to prove his case. The defendants relied heavily on the decision of the New South Wales Court of Appeal in Nguyen v
Tran [2018] NSWCA 215. This case emphasises that a court must “weigh the whole
of the evidence to determine whether the party bearing the legal onus has proved his
or her case” (at [54]). It also says that, relevant to this case, the defendants do not
have to prove that the accident didn’t happen as alleged by the plaintiff.55. But the accident unquestionably occurred, there are photos of the scene and of the departing Toyota and there is the corroboration provided by the plaintiff getting in touch with the police. The plaintiff certainly attempted to establish a significant economic loss claim but it was not substantiated. However the defendants did not garner enough evidence, nor have the overwhelming success on credit that was submitted, to divert me from a finding that the accident occurred as alleged by the plaintiff. This is not a shifting of the onus. This is a finding that I accept, on the whole of the evidence, that the accident occurred as alleged by the plaintiff.
56. Accordingly there will be a verdict for the plaintiff.
After the accident
57. The plaintiff consulted a general practitioner on the day after the accident. He was given a medical certificate certifying him unfit for work for three days.
58. The doctor’s notes (Exhibit 12) are a little confusing in that they record the plaintiff
attending upon Dr Selvakumar at 11:52am on 9 October 2018 and then again at 12:11pm on the same day. Why there are two entries is a mystery. However the
history given to the doctor does include reference to both the plaintiff’s low back and
his right shoulder. The defendants did not require Dr Selvakumar for cross
examination.59. The plaintiff says he has not worked since the accident other than about three weeks ago when he tried to do some painting. He lasted four days. The pain prevented him from continuing.
60. On 13 October 2018 the plaintiff attended the Emergency Department at Canberra Hospital where he complained of low back pain. He returned two days later complaining of continuing pain. X-rays did not disclose any fracture.
61. On 16 October 2018 the plaintiff attended another general practitioner and then on 18 October he consulted Dr Hyams-Elijah, a general practitioner at the Dickson Medical and Travel Centre. He told this doctor that he was suffering from low back pain and had a restricted arc in his right shoulder. He has remained under the care of this doctor until the present time.
62. The plaintiff’s complaints in relation to his back and shoulder have remained to the
present time but he does obtain relief from a drug called Tramadol, which is most
useful in helping him to sleep.63. On 27 November 2018 the plaintiff underwent a right shoulder ultrasound and a steroid infiltration injection. The plaintiff did not receive relief from the injection.
64. On 25 January 2019 the plaintiff had an MRI scan of his lumbar spine. This revealed
a “small left L 4/5 posterolateral disc protrusion and disc annular tear with possible
secondary left L4 nerve root irritation”.65. On 13 March 2019 the plaintiff had an MRI scan of his right shoulder. The scan
revealed a “moderate to high grade partial thickness tear in the supraspinatus tendon
posteriorly and infraspinatus tendon anteriorly. Mild bone oedema in the greater
tuberosity. Supraspinatus tendinopathy. Very mild subacromial-subdeltoid bursitis”.
66. The results of the above two scans clearly indicate objective signs of injury to the low back and right shoulder respectively.
67. The plaintiff’s general practitioner sent him to see a Dr Damiani, an orthopaedic
surgeon from whose letter I deduce that he specialises in shoulder problems. The
doctor had the benefit of the MRI scan and noted that injuries of the type revealed “do not heal by themselves and this type of traumatic tear does better with surgery”. He
recommended surgery together with post-operative rehabilitation.
68. The plaintiff says he could not afford the surgery and so was placed on a public waiting list. Surgery is not anticipated for at least another 18 months.
69. The plaintiff was referred for a medicolegal assessment to a Dr Eaton, an occupational physician. Dr Eaton felt that the low back injury was consistent with a
“whiplash associated disorder of the spine”. This is in turn consistent with the motor
accident. As to his shoulder, Dr Eaton said that the injury was to the rotator cuff and required surgical repair. Dr Eaton thought the plaintiff could carry out sedentary work
but “he would likely find that with repetitive use of his right upper limb, for example,
when doing computer work, keyboarding and mouse work that he experiences
increased pain and discomfort in his right shoulder”. The doctor did not think the plaintiff could “safely and comfortably perform all the normal duties of an independent painting contractor”.
70. Dr Eaton was asked to comment on a report obtained by the defendants from a Dr
Machart. This doctor expressed concerns about the extent of the plaintiff’s low back
injury and the causation of the shoulder injury. Dr Eaton responded that, in effect, he did not share the concerns. I note however that he relied upon the history given by the plaintiff that the Toyota hit his vehicle at high speed. I mention this here because it forms part of the reasoning of Mr Urquhart.
71. The plaintiff was also examined by a Dr Pillemer, at the request of his solicitors, in January 2020. Dr Pillemer confirmed the diagnosis of a rotator cuff injury and injury to the lower back. He did not think the plaintiff was fit for his employment as a painter.
72. Dr Pillemer was also asked to comment on the views of Dr Machart. He stated:
I note you refer to the report of Dr F Machart, orthopaedic surgeon of 13 August 2019 who
felt there was a lack of consistency in Mr Kilani’s presentation, which I did not find. He also notes that Mr Kilani’s general practitioner did not record any problems with his shoulder
until 24 October 2018, some 16 days later. I note there is an entry from his general practitioner on 18 October 2018 noting that at that stage Mr Kilani was complaining of pain in his low back as well as his right shoulder.
73. Dr Pillemer clearly paid more attention to the detail of the notes than Dr Machart.
74. There are two reports from Dr Machart (Exhibit 15). Dr Machart is an orthopaedic surgeon. He examined the plaintiff on 13 August 2019. The doctor commences his
report by observing that the plaintiff’s “command of the English language was not the
best, barely adequate for this assessment.”75. The doctor phrased his diagnosis in this stilted form:
Difficult diagnosis, ongoing lumbar and right shoulder pain. Pathology articular surface rotator cuff disruption and a small disc protrusion, difficult to equate with the mechanism of injury. Car rear-ended. Driveable. No immediate hospitalisation. On face value the pathology could be attributed to the MVA. To be sure a couple of bits of information are important for confirmation, which I would like to see:
1. Photographs of the damage to the cars.
2. Hospital records.
Both necessary for contemporaneous evidence of substantial injury. If so, then I am happy to accept the pathology. Not so easy to accept because similar pathology can be non- traumatic. History of total disability since time of MVA and no benefit from treatment or rest, is unusual, even if there was a small disc protrusion and a small rotator cuff disruption, I expected symptoms and signs not to be quite as florid as what was presented to me.
76. The doctor does not explain what he is referring to in relation to the mechanism of the
injury. He seems to be having ‘a bet each way’ by then stating “On face value the
pathology could be attributed to the MVA”.77. The doctor was provided with hospital records for 15 October 2018 when the plaintiff attended the Emergency Department. The doctor was not happy with the quality of the records and requested a better copy. Nevertheless he felt able to say:
From what I have seen so far, it does not appear likely that there was substantial injury to the lower back or to the shoulder at the time of the MVA, consistent with the severity of the ongoing symptoms or disability.
78. Dr Machart’s equivocality continues through the answers he gives to the questions posed by the defendants’ solicitors. For example he says the plaintiff suffered a soft
tissue injury which would have been reasonably treated by physiotherapy and
analgesics for six weeks. But a little later he says the plaintiff “on face value” does not
“appear to be fit to work as a painter”.79. Again, despite the meagre six weeks allocated to recovery the doctor’s prognosis recognises “some limitation of physical activities, as not to reignite symptoms of injury in MVA.”
80. In his second report Dr Machart deals with documents that had been provided to him.
The doctor again states that “the radiological pathology did not appear to be consistent with the mechanism of injury” and once again does not explain this
conclusion, let alone set out his expertise to reach such a conclusion.
81. Armed with the new documents, the doctor engages in a pedantic analysis criticising the plaintiff for an incorrect history about detail. For example he says that the plaintiff was not correct in saying he went to the hospital the following day. However he did go
to his general practitioner. The doctor observes that “it is unlikely that there was
structural injury to the right shoulder, given the contemporaneous evidence, first recorded on GP medical certificate on 24 October 2018, that is a couple of weeks
after MVA and not at the 2 visits at the hospital”. The doctor is correct that there is no
history at the hospital of shoulder pain. But there is the reference to shoulder pain on
9 October 2018 in the practice notes.82. Dr Machart does confirm his views about restrictions arising from the low back injury, but once again there is the confusion of opinion resulting from an expectation of recovery but an acceptance of continuing problems.
83. Doctors Eaton and Pillemer were cross-examined. The intent of the cross- examination was to test the respective opinions of the two doctors based on assumptions which might have been different to the history taken by the doctors.
84. This was particularly relevant to Dr Eaton who had a history of the Toyota travelling at high speed when the collision occurred. It was suggested to the doctor that if the speed was significantly lower, much closer to 20 km/h then the rotator cuff injury would not have occurred. Dr Eaton conceded that the injury was less likely at a lower speed but he would not say that the injury could not have occurred, even at 20 km/h. He made the very important point that a specific answer would require the expertise of a biomechanical expert.
85. This is an expertise assumed by Dr Machart but without any evidence of actually
having the expertise. Unfortunately Dr Machart’s expertise was not challenged, nor
was he required for cross-examination. That does not however mean I must accept his opinion or the breadth of his expert knowledge. The fact that his report went into evidence without objection made it ostensibly admissible. It did not however confer any particular amount of weight upon the report.
86. The cross-examination of Dr Pillemer was less productive for the defendants. The doctor made the point that significant stresses could be imposed on a body even at low speed. In this case, such stresses would not be surprising bearing in mind that the Audi, a sedan, was struck by a large four-wheel-drive vehicle with a bull bar.
87. Dr Pillemer did observe that the oedema (swelling) identified on the MRI report was consistent with a recent injury. However when it was pointed out to him that the MRI scan had taken place about five months after the accident he could not say that it was necessarily related to the accident. Ultimately I do not think the oedema point favours either party.
88. Ultimately I prefer the opinions of Doctors Eaton, Pillemer and Damiani over that of Dr Machart. I am satisfied the plaintiff suffered both a rotator cuff injury to his right shoulder and a soft tissue injury to his low back. Although there is some suggestion of
an injury to the plaintiff’s knee I do not think it rises to an extent that justifies any
damages.
89. I am fortified in my conclusion about the plaintiff’s right shoulder by the total absence
of any evidence of any difficulties with his shoulder before the accident or of any subsequent injury. While the shoulder injury might be seen as consistent with the work of a painter, as endorsed by Dr Pillemer, it is to be recalled that the plaintiff had not been in this occupation for a lengthy period of time before the accident. Dr Pillemer also pointed out that while a rotator cuff injury could occur without trauma,
the plaintiff’s age was possibly against such a conclusion.
90. Finally I note that while Dr Machart doubts the source of the shoulder injury, he does not attribute it to any other cause, whether absent of trauma or consistent with any particular occupation.
Damages
91. The parties were able to agree on future economic loss, past treatment expenses and domestic assistance. The plaintiff agreed that he had no entitlement to lost superannuation benefits in respect his past economic loss.
92. The plaintiff suggested a general damages figure of $100,000. The defendants said $50,000 but acknowledged this figure did not include the shoulder injury as being part of the compensable injuries.
93. I have concluded that the shoulder injury should be compensated. However I note
that the plaintiff’s lower back has significantly improved, as stated by Dr Eaton.
Although the plaintiff did not give much oral evidence about the extent of his pain and suffering, the doubts I have about his credit must impact to a certain degree on the extent of the complaints made to the doctors.
94. At the same time I recognise that the plaintiff has a continuing shoulder problem which will require surgery, no doubt including a degree of pain and rehabilitation. I think $80,000 is the appropriate award for general damages. I allow interest for 2.5 years at 2% on half of the amount. The result is $2,000.
95. Past economic loss is the most contentious of the heads of damage. The plaintiff asked for $130,000. The defendants say $6,000 is sufficient.
96. The plaintiff’s claim is based on the 2019 profit and loss statement which shows a tax
assessable income of $38,420 for 100 days. This is said to equate to a net weekly
wage of $1,932.97. The defendants approach has two sources. Firstly it was submitted that the damages
should be limited to the effects of the low back injury, and secondly that the plaintiff’s
evidence on his economic loss was so discredited that the court could not be satisfied
about any element of his claim.98. The defendants also raised a failure to mitigate point in that there was no reason why the plaintiff could not have returned to that portion of his pre-accident occupation which involved providing workers to other contractors. This work did not involve any physical activity.
99. I think there is substance in all of the defendants’ arguments. While I accept that the
plaintiff was working before the accident, and earning an income, the assortment of
possibilities as to the extent of the income precludes any reasonable assessment.100. The profit and loss statement, and the tax returns, are no more than a reflection of what the plaintiff provided to his accountant. They are not source documents. Other than the invoice book (Exhibit 2) and nine invoices there are no source documents.
The book itself is of little value. As I have said above, the plaintiff’s evidence about
the invoices was difficult to accept.
101. The question then arises as to the approach that I take. As already stated, I am satisfied that the plaintiff was working and earning some sort of an income. I can only assess his loss on a buffer basis, which I accept is most unusual when deciding upon past economic loss. Senior Counsel for the defendants accepted this approach was open to me.
102. Another element that plays into my consideration is whether or not the plaintiff has actually been working. The frequent receipt of cash payments into his accounts was simply not explained. I cannot conclude they were a product of him working. But I can conclude that his failure to explain the payments is yet another imposition on the credibility of his economic loss claim.
103. More cogent evidence that the plaintiff has been working since the accident came from the tender of the statements for his Business Transaction Account (Exhibit E). While this account does record a number of business receipts before the accident, it also reveals such receipts following the accident, for example from Philip Painting, which continue up to 20 May 2019.
104. Accepting there is no science in my conclusion, I will allow economic loss of $25,000 including interest.
105. The only other matter in dispute is the cost of future treatment. This is dictated by whether or not the shoulder injury should be included. If so, then the plaintiff is entitled to the costs of the future operation.
106. On the basis of my conclusions about the shoulder injury I will allow the costs of the operation. There are two estimates; Dr Pillemer says $10,000, Dr Damiani says about $9,000. As it is Damiani who is more likely to be doing the surgery, I will allow his figure. I will also allow the $3,000 suggested by the defendants as being referable to the low back injury. The total is $12,000.
107. A summary of the damages I have allowed is as follows:
General Damages $80,000.00 Interest on General Damages $2,000.00 Past medical expenses (Agreed) $6,500.00 Future medical expenses $12,000.00 Past economic loss including interest $25,000.00 Future economic loss including superannuation benefits (Agreed) $50,000.00 Past and future domestic assistance (Agreed) $6,000.00 Total $181,500.00
Orders
108. I make the following orders:
(i) Judgment for the plaintiff in the sum of $181,500.00.
(ii) The defendants are to pay the plaintiff’s costs of the proceedings.
(iii) The parties have leave to request the making of a different costs order.
I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim
Associate:
Date: