Monzer Awad v Diamond Marble Granite Pty Limited
[2012] NSWDC 89
•21 June 2012
District Court
New South Wales
Medium Neutral Citation: Monzer Awad v Diamond Marble Granite Pty Limited [2012] NSWDC 89 Hearing dates: 29 May 2012, 30 May 2012, 31 May 2012 and 7 June 2012 Decision date: 21 June 2012 Jurisdiction: Civil Before: Judge P G Mahony SC Decision: Verdict and Judgment for the Plaintiff
Catchwords: Personal injuries; burden of proof. Legislation Cited: Civil Liability Act 2002 Cases Cited: Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1WLR 948
Guest v The Nominal Defendant [2006] NSWCA 77
Jones v Dunkel 1959 101 CLR 298
Bradshaw v McEwans Pty Limited (Unreported delivered 27 April 1951)
Holloway v McFeeters (1956) 94 CLR 470
Luxton v Vines (1952) 85 CLR 352 at 359-360
Jackson v Lithgow City Council [2008] NSWCA 312
Mason v Demasi [2009] NSWCA 227 at [2]Category: Principal judgment Parties: Monzer Awad - Plaintiff
Diamond Marble Granite Pty Limited - DefendantRepresentation: G Hickey - Plaintiff
D Miller SC - Defendant
Slater & Gordon - Plaintiff
Moray & Agnes - Defendant
File Number(s): 10/245572 Publication restriction: None
Judgment
Plaintiff's Claim
The plaintiff claims damages for personal injuries suffered by him on 25 July 2007 on premises at 12 Ilna Street, Condell Park, NSW, at which the defendant operated a business selling marble and granite which it processed to customers' specifications.
The plaintiff claims that he visited those premises in circumstances described in paragraph 5 below, and was standing next to a truck laden with granite slabs that was being unloaded by a forklift using a clamp for the purpose of lifting the individual slabs of granite from the back of the truck. During the course of this unloading process, a sheet of granite became dislodged from the clamp and fell, striking the plaintiff on his left side and pinning him against granite that was stored within the factory premises. He suffered a crush injury to his left forearm.
By an Amended Defence filed with leave on the second day of the hearing, the defendant denied that it was negligent (and in the alternative alleges contributory negligence), but further pleads a denial that the plaintiff suffered an injury at the defendant's premises as alleged at all, and has pleaded that, to the extent that the plaintiff alleges injury in the circumstances described above, such allegations are false and fraudulent, and thus the claim brought by the plaintiff is a fraudulent claim.
Circumstances Giving Rise to the Plaintiff's Claim in Negligence
In July 2007 the plaintiff was on a three month holiday in Australia visiting from Lebanon. He was taken to the defendant's premises in the morning of 25 July 2007 by his uncle, Rachid Kassir. His reason for visiting those premises was to pass on the compliments of his family in Lebanon to the principal of the defendant company, Fadi Mansour. According to the plaintiff, the plaintiff's family knew Mr Mansour's father in Lebanon, and he was going to greet Fadi Mansour, to say hello to him.
The plaintiff had little English and spoke Arabic. When he was dropped off by his uncle, he walked up the driveway of the factory premises and inside the building through an entrance which, according to the photograph Exhibit C, had an opened roller door. Reversed into the factory premises on the same driveway at that time was a truck with a A-frame on its tray with sheets of granite loaded onto the A-frame. He was approached by a man who introduced himself as Chadi Mansour. When he told Chadi the purpose of his visit, Chadi went to obtain his brother and they together returned to where the plaintiff was standing. The plaintiff then alleges he had a conversation with Fadi during which Chadi Mansour returned to his work. The plaintiff alleges that the conversation went for between two and three minutes, at which time the phone rang in an adjacent office and Fadi returned to the office and left him by himself, standing on the side of the truck. Whilst standing there, he observed Chadi driving a forklift and using it to lift granite from the truck. During that process, a piece of granite fell from the clamp. It fell towards the plaintiff who lifted his arms up to protect himself when it struck his left arm. The plaintiff alleged that the granite split, one part of it falling to the ground and the other part striking his left forearm and forcing him back onto granite that was stored behind him. The granite pinned his left arm, causing a crush injury to his left forearm.
The plaintiff alleged that Chadi Mansour alighted from the forklift and lifted the granite off his arm. He then wrapped his arm in a cloth and called his brother Fadi who took between two or three minutes to return to where the accident occurred. The plaintiff was then taken by Fadi Mansour to a medical centre where he was treated by a doctor, in the presence of Fadi Mansour. Following his treatment by the doctor, Fadi Mansour drove him to his aunt's house where he was staying.
In his case the plaintiff called Mr Rachid Kassil who gave evidence that he dropped the plaintiff at the premises after 9am and there was nothing wrong with him. The plaintiff also called Mr Walid Zailla, the plaintiff's father-in-law, who gave evidence that he took the plaintiff to the defendant's premises in about August 2007 for the purpose of advising Mr Mansour that the plaintiff would be bringing a claim for compensation. According to Mr Zailla, Mr Mansour referred them onto his solicitor who declined to be retained by the plaintiff on the basis that he acted for Mr Mansour.
If the plaintiff's evidence is accepted, it bespeaks a breach by the defendant of its duty as occupier of the premises to take reasonable care for the plaintiff, that such breach caused the plaintiff's injury and that he suffered damage as a result of the defendant's negligence.
The Defendant's Case
The defendant called both Chadi and Fadi Mansour, and Mr Romie Safi to give evidence. Mr Safi was employed by W K Marble & Granite, which supplied wholesale marble and granite to the defendant company, and Mr Safi was its accounts receivable clerk. He was called to give evidence of the system undertaken by the defendant's supplier of wholesale marble and granite in an attempt to establish that there was, on the balance of probabilities, no marble or granite delivered to the defendant's premises on 25 July 2007. The evidence of Mr Safi proved to be somewhat inconclusive on that point.
In contrast to the plaintiff's evidence, Fadi Mansour gave evidence that he was not at the premises when the plaintiff arrived. Further, the first thing he knew of the plaintiff's injury was when he received a phone call from his brother. He returned to the premises to find his brother and the plaintiff in the kitchen at the rear of the factory premises, following which, he rang his wife and then drove the plaintiff to see a family doctor, Dr Hannah. He said that he did not know who the plaintiff was and had never met him before. When he arrived back at the factory Fadi gave evidence that he asked his brother who the person was, to which Chadi replied: "I don't know". When Fadi asked the plaintiff who he was and what he was doing, the plaintiff made no reply. He was merely trying to help, by taking the plaintiff to see a doctor. Further, he gave evidence that there were no deliveries made to the factory that day.
Chadi Mansour gave evidence that he had come in at approximately between 8.30 and 9.00am at his brother's request to look after the premises. He had spent an hour having coffee with his brother Fadi, who then left to go on a job to give a quotation. He was not employed by the defendant and did no work whilst his brother was away from the shop. Approximately ten minutes after his brother Fadi left, Chadi gave evidence that he heard a scream from inside the premises. He went out from the office and saw a person lying on the floor inside the factory premises, right at the entrance of the door, that is the roller door. He heard the person screaming and saw that there was blood coming out from his "hand". He then went to get a cloth which he took to the plaintiff, took him to the kitchen area and then called his brother asking him to "Hurry up. Come here to the shop".
The Principles to be Applied on Burden of Proof
The defendant's case therefore is entirely contradictory of the plaintiff's claim, and of the plaintiff's evidence. The plaintiff has the onus of proving his case on the balance of probabilities, otherwise a verdict must be entered for the defendant.
The defendant relied on Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1WLR 948 (involving a ship lost at sea) and Guest v The Nominal Defendant [2006] NSWCA 77, a case involving a pedestrian found lying injured on a sealed country road displaying somewhat bizarre injuries which were subject of conflicting theories by expert witnesses. In that case, the plaintiff being amnesic, each party submitted that the theory advanced by the other was improbable. The competing theories were either the plaintiff was injured in a motor vehicle accident or was the subject of an assault. Ipp JA (with whom Hanley JA agreed) referred to the dissenting judgment of Dixon CJ in Jones v Dunkel 1959 101 CLR 298 at pp 304-305 where the Chief Justice said:
"In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged', but 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture.'"
These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Limited (Unreported, delivered 27 April 1951) which is referred to in Holloway v McFeeters (1956) 94 CLR 470, by Williams, Webb and Taylor JJ. The passage continues:
" ... all that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probability such an inference might reasonably be considered to have some degree of likelihood." (at pp 480, 481).
But the law which this passage attempts to explain does not authorise a Court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."
Ipp JA went on to say:
"These remarks echo what have earlier been said in Luxton v Vines (1952) 85 CLR 352 at 359-360 by Dixon, Fullagar and Kitto JJ."
These principles were also discussed by Allsop P in Jackson v Lithgow City Council [2008] NSWCA 312 at paras [9] to [13] where the President referred to the earlier decision of Guest v The Nominal Defendant (this part of the President's decision was not criticised by the High Court on appeal).
The application of these principles requires a close examination of all the evidence.
The Plaintiff's Evidence of his Injury
The plaintiff gave evidence in chief as to the circumstances in which he came to the defendant's premises outlined in paragraph 4 above. The evidence about the circumstances of his injury appears at T 10-14. He was standing at the back of the truck (T 10.37) on the driver's side (T10.41).
At T11.18 he gave the following evidence:
"Chadi was driving the forklift. He came with the forklift and another person came from the inside, the other person jumped on the truck you know and put the clamp on the granite.
Q: What did the other person then do?
A: Then he was, you know, get down off the truck and return to his work and Chadi was lifting the granite and then the granite fell. When the granite fell I was standing on the side so I put my arms up and then there was another lot of granite."
At T 12.41:
"Q: While Chadi was lifting the granite what happened next?
A: The granite split or fell off that clamp.
Q: After the granite fell off the clamp what happened to the granite, physically; how did it move?
A: He was lifting it and then, you know, it - it fell. When it fell it fell on this side. That's his movement.
Q: Did it fall towards you or did it fall in some other direction?
A: On the side where I was standing."
At T13.1:
Q: Now what happened to the granite then, and what happened to you then?
A: When the granite fell, you know, I was looking at the granite and when I saw the granite falling towards me I lift my - arms up.
Q: Did the granite hit you?
A: When the fence fell, you know, its been cut into two pieces one piece hit me and then, you know, where for - when I lift my arm up the granite hit my arm and then my arm being stuck there was another granite so my arm stuck on the other granite."
At T13.30:
Q: You've indicated that you were struck by the granite, what part of your body was struck by the granite?
A: When the granite fell I tried to hold it with my hands or arms and then, you know, it hit my head and one portion of the granite fell to the ground. The other portion hit me.
Q: What part of your body did it you hit in?
A: It hit me on my right - sorry, left, sorry, left arm and then - behind there was a couple of marble - granite and my head stuck in those granites as well.
Q: What happened after you were struck by the granite?
A: I started yelling then Chadi came down from the forklift and he lifted the granite off my arm. Then he brought some kind of - I don't know what material and then he wrapped my hand or my arm with it. He called his brother."
In cross-examination the defendant's case was put to the plaintiff in the following terms at T67.29:
"Q: I want to suggest to you that there was no truck in the factory at all when you turned up in July 2007 for your first visit?
A: Yes there was.
Q: I want to suggest to you that there was no forklift being operated at the time that you turned up for your visit on 25 July 2007?
A: There was a forklift inside, but after I arrived and I spoke to the owner of the shop, you know, like his brother went and drove the forklift.
Q: What I want to suggest to you is that is false?
A: But everything is correct.
Q: And your evidence that you gave the Court this morning about a slab falling on you after it had been picked up by a forklift, I want to suggest that that evidence is also false?
A: Everything is true, it's correct and I cannot forget about the accident. It's been engraved in my mind."
At T 68.26 the following questions were asked:
"Q: You stood just inside the roller door entrance of the factory and you called out for help?
A: I was inside where the granite fell on me and Chadi, you know, go down and he help me when the accident occur.
Q: Well, what I'm suggesting to you is that no such thing happened. You turned up unannounced at the factory and the first thing you did was call for help?
A: No. Actually I spoke to Chadi, then I spoke to Fadi and then the accident occurred when Chadi went inside - sorry - Fadi, Fadi went inside."
At T79.36 on Day 2 the following cross-examination took place:
"Q: I'm suggesting to you that the accident, as His Honour just indicated, my suggestion is that the accident simply did not happen at all?
A: No. The accident happened as I said.
Q: When this stone, you say, fell on you, you caught it, did you, with the palm of both of your hands, is that right?
A: Correct.
Q: With your hands facing forward, correct?
A: I don't know the position or the way. All I know is I raised my hands to try to hold it.
Q: And in fact you gave evidence yesterday that you held it up for some period of time before you say Mr Chadi Mansour came and took it off you?
A: I did not manage to hold it in its - stop it. I - it made me go backwards and it came on my hand, indicating - or arm - indicating the left hand or arm."
And at T82.6:
"Q: Do you say that that injury was caused by the piece of stone that fell from the back of the truck?
A: Of course.
Q: Or do you say that that injury was caused by the stone that you were pinned to behind you?
A: That stone had caused some of it because my hand was pinned between the two.
Q: I'm not quite sure what that answer is. Was that scar caused by your arm, you say, being pressed against stone behind you?
A: Correct.
Q: I see, right, okay. So what I want to suggest to you is that no piece of stone fell from the back of the truck, do you agree?
A: No, there was.
Q: I want to suggest to you that there was no fractured piece of marble on the ground at the time that you were in the premises?
A: No.
Q: I want to suggest to you that there was no truck in the premises at the time that you turned up?
A: No, there was a truck.
Q: I want to suggest to you that no one was doing any unloading work off the back of any truck with the forklift at the time that you were there?
A: No, there was.
Q: I want to suggest to you that Mr Fadi Mansour was not at the premises at the time that you first arrived?
A: No, he was there, I spoke to him.
Q: I want to suggest to you that the only person who was on the premises at the time you arrived was Chadi Mansour?
A: There was Chadi, Fadi and another person were there.
Q: What I'm suggesting to you is that you're mistaken or that that is false and that in fact what occurred is that you turned up unannounced at the factory somehow bleeding?
A: No, the accident happened at the factory and it happened as I have told the Court."
The evidence of Mr Rachid Kassil, the plaintiff's uncle, was uncontroversial. He dropped the plaintiff off after 9am (T93.32) at which time there was nothing wrong with him (T93.39). That evidence was not challenged in cross-examination (T94).
The plaintiff also called Mr Walid Zailla, who is the father-in-law of the plaintiff. He gave evidence (at T96) that at sometime after the injury took place he returned to the defendant's premises and spoke to Fadi Mansour. He told Mr Mansour that the plaintiff "will have to claim like injury because he has damage already". Mr Mansour told him that he could do nothing for him and that he should go to his lawyer.
Mr Zailla did go and see Mr Fadi Mansour's lawyer, a Mr O'Hare (more probably, Mr Majed Al-Kheir) (T96.45). He took Mr Awad with him and Mr Awad told him what happened. Having done so, the solicitor told Mr Zailla that he had a conflict and would not act for the plaintiff. According to Mr Zailla, this meeting took place before the plaintiff returned to Lebanon (T97.25). In the plaintiff's evidence in chief at T17.34, it had been led from the plaintiff that it was after he returned to Australia that he went with his father-in-law to the defendant's premises. Little turns on that. The defendant concedes that the meeting took place (T199.20).
Mr Zailla said that the visit took place in about August 2007 (T99.48). At T100.32 he was cross-examined as follows:
"Q: I suggest to you that what you did was turn up and demanded money off Mr Mansour?
A: No, nothing. We didn't talk about money, nothing at all over this.
Q: I suggest to you that Mr Mansour didn't tell you to go and speak to his solicitor at all?
A: He did tell me to go to Mr O'Hare, I remember his name."
Following his cross-examination of the plaintiff, I raised with Senior Counsel for the defendant whether the defence as pleaded complied with the UCPR, in terms of it not referring at all to the question of fraud, which had been put squarely to the plaintiff. That led to an Amended Defence being filed with leave on the second day of the hearing.
The Defendant's Evidence
Fadi Mansour gave evidence in chief that he opened the premises at 7.30am on 25 July 2007. The previous day he had arranged for his brother, Chadi, to come in that day, as he had to do measurements for a customer. The first time he became aware of the existence of the plaintiff Mr Awad was when he received a phone call from his brother whilst he was taking measurements at 38 Norman Street Condell Park. At T117.47 he said:
"A: My brother rang me ... and said we have a problem at work.
Q: What did you say to him?
A: What problem? He said, the problem, I've got someone at work."
At the time when he left to go to do the measurements he could not recall whether his truck was parked inside the factory (T120.23), but on his return the truck was not parked inside the premises through the roller door (T121.30).
When Fadi Mansour arrived back at the premises he yelled out to Chadi who answered him from the kitchen area (T122). When he went into the kitchen area he saw someone bleeding and said to his brother "Who is this person?" (T122.17).
Chadi replied, "I don't know" (T122.45).
Fadi then gave the following evidence:
"Q: What did you then say or do?
A: I asked the other person, I said, 'Who are you? What are you doing?' and he did not reply."
At T123.28 Fadi Mansour gave the following evidence:
"Q: Did you ask him anything else?
A: Once, twice, three times, I asked him 'What are you doing here'; he would not reply.
Q: Did you ask your brother anything else about how he came to be there or anything?
A: I asked my brother. I said - he said, I don't know how he entered the place, the premises.
Q: Then what happened?
A: I asked him, 'Do you know someone, do you know anyone'. He would not reply. I rang my wife. I asked my wife, what should I do. I said to her, this is what has just happened.
Q: What did you then do?
A: I put him in the car and I took him to a medical centre.
Q: Did you have any conversation with him in the car?
A: I did not ask him anything, no."
At T124.48 Fadi Mansour gave the following evidence:
"Q: What then happened at the medical centre? If you can remember?
A: There was a doctor there, there was a secretary in the office. I said I want to see the doctor - we want to see the doctor. She said, 'What's wrong?', I said 'He's cut, he's got a cut.' 'How?' I said, 'I don't know'.
Q: Did you wait until Mr Awad saw the doctor?
A: I waited for a while, or a bit of a while.
Q: Did you go into the doctor's office with Mr Awad?
A: I no longer remember."
At T126.14 Mr Fadi Mansour said he left the medical centre on his own.
At T128 Fadi Mansour gave evidence about the plaintiff's father-in-law, Mr Zailla, coming to his premises some time after this incident.
At T128.42:
"Q: ...did he come alone or did he come with anyone else?
A: By himself.
Q: Did you have a discussion with him?
A: Yes
Q: Can you tell us what was in the discussion?
A: He asked me to give him money."
At T129.1:
"Q: Can you tell us what he said?
A: He asked me to give him money and I said to him, 'Why, what's the reason?'
Q: Did he say anything to you?
A: He answered me and he said it's because he fell and he hurt himself.
Q: Who is he?
A: It was his uncle talking about Awad.
Q: What did you say in response to that?
A: I said to him 'I don't know him and how do you want me to pay for something I don't know about.
Q: Was anything else said?
A: No."
At T129 Mr Fadi Mansour also gave evidence about his purchase of marble and granite from the wholesaler, W K Marble & Granite. That evidence was to the effect that he picked up the stone on his own truck and that they would invoice him two or three days later, following which he would pay within a month.
In cross-examination Mr Fadi Mansour said that he employed casual labour from time to time to help him with the transporting and cutting of stone (T130.49). The forklift on his premises had an attachment with a clamp for lifting stone slabs, he used that forklift to move the stone from trucks to various other areas of the factory (T131.10). Chadi was not ticketed and qualified to use the forklift (T131.38).
When Fadi saw that the plaintiff was injured, it did not cross his mind to call an ambulance (T134.1), nor to take him to the Emergency Department at Bankstown Hospital, one kilometre away. When it was put to him that he took the plaintiff to a medical centre rather than the Bankstown Hospital because questions may have been asked about where the accident had occurred and reports may have been made to authorities like the Workcover Authority, Fadi Mansour replied at T 135.32:
"I didn't even think about going to the hospital because it was a small cut."
This was notwithstanding that when he first saw the plaintiff he had his arm wrapped in a bandage and that he appeared to be in "normal pain not great pain" (T135.43).
At T137 he was cross-examined as follows:
"Q: When you say a little bit, where was the blood?
A: In the kitchen where he was standing, on the table.
Q: You had formed the view that there wasn't much wrong with him?
A: From looking at him I thought no, there is not much.
Q: He wouldn't tell you who he was?
A: No.
Q: He wouldn't tell you why he was there?
A: No.
Q: Why didn't you just ask him to leave?
A: Because I saw him in that condition and I wanted to do something good, it's natural to do that."
At T137.33:
"Q: Why did you not just ask him to leave?
A: May be I asked him, maybe I didn't. I'm not sure.
Q: So are you saying now that you might have asked him to leave and he wouldn't leave?
A: May be, but I can't remember. It's been four years.
Q: So you think you may have asked him to leave?
A: I think I asked him that question.
Q: And clearly he didn't leave?
A: He did not leave, no.
Q: So your alternative to that was to drive him to a doctor that was visited by your own family?
A: Correct.
Q: Rather than taking him to Bankstown Hospital, which is less than one kilometre away?
A: Correct."
At T139.7 the following proposition was put to Mr Fadi Mansour:
"Q: Sir, the reason why you took him to your doctor, rather than Bankstown Hospital, was because he had been injured whilst your brother was driving the forklift and he wasn't qualified to drive it?
A: No, he was not driving the forklift.
Q: So you reject that proposition, do you?
A: Because my brother was in the shop waiting for me in the morning. He was not driving."
It was then put to Mr Fadi Mansour that on that day, 25 July 2007, he had taken a delivery of stone from W K Marble & Granite, to which he replied "On that day I didn't take anything".
That question was based on Exhibit G, an invoice dated 25 July 2007. That and other invoices were the subject of further evidence from Mr Safi which I will deal with below.
When cross-examined about what occurred at the medical centre, Fadi Mansour lapsed into a total lack of recall about anything that occurred after their arrival - see T143.25. When asked at T145.48 whether he was in the room with the plaintiff and the doctor when the plaintiff was telling the doctor how the accident happened, his answer was, "I cannot remember".
Following the examination, Fadi Mansour denied driving the plaintiff to where he was staying, but then changed his evidence that he could not remember that he took him home (T146.42 - 147.1).
In respect of the meeting with the plaintiff's father-in-law, Mr Zailla, Fadi Mansour confirmed his evidence in chief that this relative had demanded money off him (T147.12), but could not remember whether anyone else was present. He could not remember if the plaintiff was present (T147.40). Eventually at T150.28 Fadi Mansour stated that he did not remember the conversation that happened at that meeting.
Finally, Mr Fadi Mansour was cross-examined about the correct and safe method of unloading slabs from the truck by use of the forklift with the extended clamp attachment at T161.26. At T161.36 was the following evidence:
"Q: The driver of the forklift drives the forklift up to the back of the truck?
A: Not from the back of the truck, the side of the truck.
Q: The side of the truck. And once it has approached, another person then gets the clamp, puts it onto the slab and secures the clamp and then steps away so that the forklift driver can lift the slab?
A: Correct.
Q: And that's the safe method?
A: Yes.
Q: And that description accurately reflects, when you were lifting slabs, what would have been done?
A: In the shop as well we use a crane.
Q: But in terms of just the forklift operation, that's a correct description of how that job's done?
A: Correct."
As outlined above, Romie Safi was called by the defendant to give evidence of the system employed by W K Marble & Granite for invoicing clients such as the defendant in respect of their supply of marble and granite. That system depended on whether telephone orders were made or whether customers came to their premises. The practice varied from customer to customer (T166.25). Generally, however, customers were invoiced after an order was finalised, and that process may take two or three days to generate a computer generated invoice (T167.20). That generally meant that the date on the invoice was not the date on which the product was collected (T168.50) which was evidence intended to undermine the plaintiff's reliance on Exhibit G.
In cross-examination, Mr Safi made it clear that an invoice would not be issued until the order was complete (T169.49). It was then established that for invoices dated 27, 28, 29 and 30 July that year, the slabs could have been collected up to seven days before the last invoice of 31 July (T171.45). Those invoices became Exhibit H, and the invoice for 31 July was for delivery of 136 slabs.
Chadi Mansour gave evidence that he was minding his brother's premises whilst his brother Fadi attended a measurement of a job at Condell Park. He was not doing any work at the factory, nor were there any deliveries of stone or products to the factory. His evidence of meeting the plaintiff was as follows at T176.9:
"Q: When was the first time you saw or met Mr Awad?
A: When I saw him at the premises on the floor at the shop.
Q: Explain to the Judge, if you can please, what you saw when you first saw Mr Awad?
A: After my brother, Fadi, left me, I was sitting in the office and about ten minutes later I heard a sound, scream.
Q: What did you then do?
A: I tried to follow the sound I found it was coming from inside the shop.
Q: What did you then do?
A: When I saw him on the floor, I was surprised and I thought 'why is this person in the shop'?
Q: So does that mean you walked out of the office?
A: Yes, I did work (sic) out of the office.
Q: And where did you see this person on the floor that you just said?
A: The office is near the door, as soon as I got out of the office it was right at the front.
Q: So when you say you saw the person on the floor, was that person inside the factory?
A: I saw him right at the entrance of the door."
At T177:
"Q: What did you then do?
A: I was surprised, I asked him 'What brought you here? What do you need?'
Q: What did he say if anything to you?
A: He did not answer me that time at all.
Q: What happened then?
A: I was worried about the blood that's coming out of his hand, so I went and got a cloth. Then I took and put him inside the kitchen and I called my brother Fadi at that time.
Q: What did you say to your brother?
A: I told him 'Hurry up. Come here to the shop.'"
At T177.43:
"Q: Do you recall your brother saying anything when you are in the kitchen to you or Mr Awad?
A: No.
At T178.25:
"Q: You have given evidence that when you first saw Mr Awad you spoke to him. Can you remember speaking to him at any other point during the time when he was on the premises on that day?
A: Not at all."
When asked what conversation took place when he first found the plaintiff on the floor at the entrance to the premises at T178.41 he said as follows:
"A: I heard the sound and the words, 'Help me, help me.' I went outside towards him. I said to him, 'What are you doing here? What brought you here?' And he did not reply to me at that time, but I got busy with his hand because the blood that was coming out."
In cross-examination Mr Chadi Mansour was asked at T182:
"Q: In any event, once your brother Fadi came back, what period of time did he remain there before he drove Mr Awad off to the medical centre, or the doctor?
A: The moment he saw him, he took him straight away. He didn't wait at all."
The balance of the cross-examination of Chadi Mansour involved the process of counsel for the plaintiff putting to Mr Chadi Mansour the plaintiff's case, by individual propositions, all of which were disavowed by Mr Chadi Mansour. At the time of the plaintiff's injury in 2007 Mr Chadi Mansour was a hairdresser, but at the time of trial he was working for his brother Fadi in the same premises. He was not licensed to drive a forklift. He denied that at the time of the plaintiff's injury he assisted his brother doing any of the physical work in the factory (T185.7). He also denied any interest in his brother's business, notwithstanding that he had been a director of the company between 11 June 2008 and 4 September 2009. The reason proffered for that directorship was that at the time he wanted to apply for a home loan and he needed an "NBN number" at that time (T185.40).
It was put to Mr Chadi Mansour that the reason he had given his evidence was because at the time of the plaintiff's injury he was driving the forklift and he did not have a forklift ticket. He denied that proposition. At T187 he was asked:
"Q: Is the reason you didn't call for an ambulance because you thought people might ask questions about how the accident occurred?
A: Not correct.
Q: And that you shouldn't be operating a forklift?
A: I wasn't operating."
The following issues are raised by the parties as impacting on the determination as to whether the plaintiff has established his case on a balance of probabilities, or whether there should be a verdict for the defendant on one of two alternative bases, namely, that the plaintiff has not satisfied the burden of proof, or alternatively, that he has brought a fraudulent claim. The issues are as follows:
(1) The plaintiff's credit.
(2) The credit of both Fadi and Chadi Mansour.
(3) Whether, having regard to the authorities set out in paragraph 13-16, that there is, on the evidence and inferences arising there from, a reasonable basis for accepting on the balance of probabilities that the plaintiff was injured in the manner in which he claims. As that claim is brought in negligence, it is governed by the relevant provisions of the Civil Liability Act 2002 as far as determination of issues such as breach, causation and damages.
The Plaintiff's Credit
The defendant's case did not involve putting to the plaintiff any alternative basis for the manner of his injury. Rather, the defendant asserted that the injury did not occur on its premises, relying on the evidence of Fadi and Chadi Mansour as outlined above. It attacked the plaintiff's credit in several ways, in an endeavour to establish that the plaintiff could not be believed in respect of his version of the circumstances in which he was injured.
The principal attack came on the basis of an application the plaintiff made to become a permanent Australian resident in Lebanon in November 2007. This was at a time after the plaintiff's injury, when he had returned to Lebanon, but wanted to return to Australia to marry Mr Zailla's daughter. His application was Exhibit 2 in the proceedings. Part of the application comprised a questionnaire which contained questions about the plaintiff's medical history. A declaration was to be signed in the presence of the examining doctor declaring the information to be correct. In crossexamination, the plaintiff conceded that he had lied about the medical information provided by him, in that he had said he had an operation to his appendix, whereas in fact, he had omitted to refer at all to the injury suffered to his left arm and the operative procedure he underwent in respect of it.
In fact, the plaintiff had also answered untruthfully the following questions:
"Have you EVER had:
(l) Any illness, injury or medical condition lasting more than two weeks, or a recurring condition not mentioned above?
(m) Any medical, physical, psychological or other treatment in the last five years?
(17a) Are you taking any pills, medicine or having other treatment?
(e) Do you have any physical or mental disabilities which may affect your ability to earn a living or take full care of yourself?"
To each question above the plaintiff answered by ticking a box marked "No", rather than ticking the box marked "Yes" and providing an explanation for that answer in the space provided. He conceded that he had lied, and stated that he lied because he did not want them to stop his application because he was engaged to be married (T38.15).
The plaintiff did, however, assert that he was examined by a female doctor who did see his arm and asked him about it, to which he provided information by telling the doctor that he had had an operation (T38.25).
In oral submissions Senior Counsel for the defendant submitted that the information set out in the document, notwithstanding the concessions made by the plaintiff in cross-examination as to its untruth, was actually the truth. However, that submission could not be accepted given the factual history of the plaintiff's operation to his left arm, and the obvious scarring left as a result of it.
The plaintiff's credit was also challenged on the basis of his poor work history following his return to Australia and his lack of motivation to attempt to find work. The defendant submitted that his account of his work history would not be accepted. His work history, since returning to Australia, was as follows:
October 2008 until December 2008, employed by Classy Kitchens Pty Limited, working eight hours per day, three days per week (T20.25).
August 2009 until October 2009 employed by Farache Kitchens, working eight hours per day, three days a week (T22.25).
March 2010 until October 2010, self-employed in partnership with Mamoud Debas trading as Monster Shop Fittings (T23-24).
October/November 2010, employed by Prestige Kitchens for three days (T24).
August 2011, employed by Kitchenland for 2 or 3 days.
The plaintiff's evidence was that he was paid $450 for three days work for Prestige Kitchens. The plaintiff's 2010 tax return disclosed a net income of $3,160.00 (Exhibit A, p 162), which accorded with his earnings at Farache Kitchens for the period 4 August 2009 to 25 September 2009, which were produced on subpoena by Farache Kitchens (Exhibit A, p 154). That material evidences a net earning capacity for a three day week of $360.
The plaintiff was not challenged about his evidence that he worked in 2010 in partnership with Mr Debas. In that business, he did the plans for the drawings and measurements and Mr Debas and his son attended to the heavier manual cabinet making tasks (T23.48). The partnership dissolved when Mr Debas bought the plaintiff's part of the business in October 2010 for "around $6,000 or $7,000" (T24.15).
The defendant submitted that the plaintiff was unmotivated to work based on his evidence in cross-examination at T52.5-T54.10. The evidence established that since September 2010 he had only done a handful of days paid work, that he was not registered with an employment agency, that he had had four job interviews in two years and had made no enquiries as to training, particularly in the area of mechanics. I make no adverse findings as to the plaintiff's credit in respect of these matters. They do, however, impact on any assessment of damages for his past loss of earning capacity which I will refer to below.
The plaintiff's credit was also attacked on the basis that he was "entirely unable to explain the mechanics of the incident", and that the mechanics of the accident were "unfathomable". Whilst the plaintiff was unable to recall some detail relating to this issue, his evidence was consistently descriptive of Chadi Mansour operating the forklift with a lifting mechanism that utilised a clamp to lift the individual slabs from the rear of the A-frame truck and to store them in the factory. That evidence was consistent with the evidence of the unloading system used by the defendant outlined by Mr Fadi Mansour and referred to in para 54 above. Inevitably, if such an injury were to occur on the factory premises, it would occur in a very short space of time and an injured person could not be expected to recall in exact detail everything that occurred. The plaintiff's evidence was reasonably consistent as to the slab breaking into two parts, falling from the clamp and him putting his arms up to protect himself from it as it fell, and his left arm being pinned by it against the granite stored behind where he was standing.
The plaintiff's credit was also impugned on the basis that he gave different versions of what occurred to different doctors who examined him. I do not place any weight on the various histories recorded by doctors in medical reports tendered by both parties in the proceedings as to the circumstances of the injury, as opposed to the nature of the injury itself, for the reasons set out by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] I therefore make no adverse finding to plaintiff's credit on this basis.
Another area where the plaintiff's credit was impugned was when it was put to him that a demand had been made for money on his behalf to Fadi Mansour following this incident. As an issue in the proceedings, that matter fell away when it became clear that the plaintiff' and his fatherinlaw were in fact informing Fadi that a claim for compensation was to be made. Their visit to Mr Mansour's solicitor supports that finding.
The Credit of Fadi and Chadi Mansour
It was submitted by the plaintiff that the evidence of both Fadi and Chadi Mansour was motivated by the fact that Chadi Mansour was operating the forklift without a license at the time that the plaintiff was injured. Chadi's evidence therefore was a blanket denial of the plaintiff's claim and could not be accepted. Further, Fadi Mansour's evidence was so unsatisfactory in that he "prevaricated, he refused to answer questions directly, he took the refuge of lack of memory on every occasion that it appeared that there was some proper challenge to the evidence that he was giving".
It was submitted by Senior Counsel for the defendant that there was no motive for either Fadi or Chadi Mansour to mislead the Court because the defendant was insured, and it was indemnified by the insurer in respect of the involvement of Fadi and Chadi Mansour. The plaintiff, on the other hand, submitted that there was ample motivation for them both to mislead the Court. Chadi was not licensed to drive the forklift and there would be ramifications for him, and possibly the business, if he was found liable for the plaintiff's injury. In prosecuting their defence that the plaintiff suffered no injury on their premises, the evidence did not undermine the plaintiff's case at all. The subsequent behaviour of Fadi Mansour taking the plaintiff to a medical centre for treatment, remaining with him whilst he saw the doctor and the unsatisfactory nature of his evidence in relation to that aspect of the matter, meant that he could not be believed.
Determination
Having regard to the whole of the evidence in this matter, I make the following findings and set out my reasons therefore:
(1) I accept the plaintiff's evidence that he was injured in the defendant's premises in the circumstances where there was unloading of marble or granite slabs, by use of a forklift driven by Chadi Mansour. I also accept the plaintiff's evidence that part of the slab fell onto him, forcing him onto granite that was stored in the factory premises and thereby causing a crush injury to his left upper arm. I so find for the following reasons:
(i) The plaintiff's evidence as to his injury was consistent throughout the whole of his evidence including vigorous and lengthy cross-examination.
(ii) I find that the plaintiff was dropped at the defendant's premises by Mr Kassil and was uninjured at the time of his arrival. That evidence was not challenged.
(iii) The fact that the plaintiff could not recall the exact mechanism of what caused the clamp to fail is not a matter adverse to his credit.
(iv) The plaintiff's evidence is consistent with the method usually used by the defendant as described by Fadi Mansour.
(v) The defendant puts forward no alternative theory as to how the plaintiff suffered the crush injury to his upper left arm.
(vi) The plaintiff's injury was consistently diagnosed as a crush injury and treated as such by his treating doctors including his surgeon.
(vii) The plaintiff's evidence relating to his residency application and the untruths contained therein was candid. His reason for requiring his application to be approved, namely, to return to Australia to get married, provided motivation that does not reflect on his credit generally.
(2) I further find that the evidence of Fadi Mansour was just not credible. If he was to be accepted, he found a man who he did not know and had no conversation with in his premises (notwithstanding that they were both Arabic speakers), took him to his family doctor, whilst having no conversation with him, stayed with him at the doctor's surgery and then left without any recollection of what occurred. His testimony lacked any veracity, and I find he was motivated by a desire to protect his brother Chadi, who I find was driving the forklift at the time the plaintiff was injured. Chadi had no licence to drive the forklift and it was his actions which led to the plaintiff's injury.
(3) I do not accept the evidence of Chadi Mansour. It also lacked the ring of truth. Both Fadi and Chadi gave evidence through an Arabic interpreter, however, it was clear, at least in the case of Chadi, that he had good knowledge of the English language - see for example T115.1-20. As the process of interpretation of evidence has a substantial impact on the way in which evidence is delivered, my findings are not based on either of the witnesses' demeanour to any significant extent. Rather, in taking an objective view of the evidence, I find that is there is an inherent unlikelihood that events transpired in the way they have stated.
(4) Chadi's evidence also involved him having no conversation with the plaintiff. If both Fadi and Chadi Mansour were to be accepted, the plaintiff did not say one word during the whole of their dealings with him, after his initial cry for "help".
(5) Fadi's evidence of the phone call he received from Chadi (see [31] above) in no way accords with Chadi's evidence of the phone call (see [58] above).
(6) Fadi Mansour's contention that his family knew nothing of Mr Awad or his family was an assertion that could not be tested at all.
(7) Fadi Mansour's assertion that a demand was made by the plaintiff or his uncle for money lacked candour when in fact no such demand was made.
(8) It is not necessary for me to determine what the motivation of the witnesses called by the defendant was, however, the mere fact that they were indemnified by an insurer provides no underlying motivation for them to be telling the truth.
Despite the conflict on the evidence outlined above, there are no conflicting "theories" as between the plaintiff and the defendant as to how the plaintiff received his injury. The plaintiff's "theory" is in accordance with his evidence as outlined above, notwithstanding that the evidence of the detail of the mechanism of that injury is somewhat scant. This distinguishes this case from the authorities referred to in paragraph 13 above. The defendant here submits it does not know how the injury occurred, relying on the evidence of Chadi Mansour, ie, the plaintiff was merely found on its premises in an injured state. It suggests no "theory" as to how that injury occurred, rather, it submits that it just did not happen on its premises.
I am satisfied on the balance of probabilities on the totality of the evidence that the plaintiff was injured in the manner described by him and set out above. I am not satisfied at all that the defendant has made out the case of fraud pleaded by it in the Amended Statement of claim.
Breach of Duty
Breach of duty of care is governed by s 5B of the Civil Liability Act 2002. Having found that the plaintiff was injured in the manner described by him and set out above, it is clear that allowing him to stand close to the unloading procedure with a forklift in use gave rise to a foreseeable risk of harm (s5B(1)(a)) and the risk was not insignificant (s5B(1)(b)). A reasonable person in the defendant's position would have taken precautions, namely, would have removed the plaintiff from that position. I therefore find that the defendant breached its duty of care to the plaintiff and that such breach was a necessary condition of the occurrence of the plaintiff's injury. I therefore find factual causation by the defendant of the plaintiff's injuries pursuant to s 5D(1) of the Act. The defendant was therefore negligent.
The Plaintiff's Injuries and Treatment
Following his injury the plaintiff was examined by Dr Hanna and on examination was found to have a swollen left arm with tenderness over the radius/ulnar with a laceration on the ulnar aspect of the forearm. An x-ray revealed no abnormality and his laceration was stitched and he was given a tetanus injection. On the following day he returned to see Dr Hanna and on examination he was unable to flex his little and ring fingers. The plaintiff's evidence was that his arm was swollen and he had been unable to sleep overnight (T15.33). Dr Hanna referred him to the Emergency Department at Bankstown Hospital, however, his aunt took him to see Dr Alameddin who examined him and advised him to go straight to the hospital (T15.38, Exhibit A Tab 6).
When he presented at hospital on 26 July 2007, he was assessed as having a crush injury to his left arm and a history was taken that a "50 kg block marble fell on left forearm yesterday at 12pm". His left forearm was assessed as being "swollen +++", and he complained at being unable to move his wrist and fingers due to pain. He was found to have increased swelling and pain, and diminished movement in his left arm.
The plaintiff remained at the hospital until 2am when he was requested to return at 7.30am on 27 July 2007 to have an operation on his forearm. On 27 July he was assessed to have a "2/7 old crush injury left arm. Left arm very swollen. Cubital fossa pulse hard to obtain".
On 27 July 2007 he underwent an operation by Dr Moisidis by way of a left forearm fasciotomy, repair of tendons and evacuation of a haematoma in the wound. His arm was encased in a plaster and he was discharged from hospital on 28 July 2007. He wore the plaster for two months. Dr Moisidis was of the opinion that he sustained a crush injury to his left arm which required fasciotomy and repair of multiple flexor tendon muscle bellies. Due to excessive swelling of the forearm, a skin graft was required from his left thigh to achieve wound closure (Exhibit A, p 81). Dr Moisidis referred him to physiotherapy for hand therapy.
The plaintiff returned to Lebanon in October 2007 and received treatment from a family doctor in Tripoli (T17.5). He returned to Australia, having been granted permanent residency in April 2008, and returned to the care of Dr Alameddin.
The plaintiff has been examined by numerous doctors for medico-legal purposes. Dr Moisidis described his injury as "a significant crush injury of the left forearm" (Exhibit A, p 96). No other doctor disputed that he had suffered a crush injury to his left forearm. Further, there is little dispute that the injury caused internal bleeding, leading to a compartment syndrome in the left forearm requiring surgical exploration, drainage and repair of the flexor muscle belly, leaving the plaintiff with reduced power and movement in the left forearm and hand (see report of Dr Richard Honner, Hand Specialist, Exhibit A, p 110). Dr EndreyWalder, in a report dated 6 August 2008, was of the opinion that the plaintiff's main functional deficit related to a significant and marked weakness of the left arm below the elbow, especially relating to his ability to grip (Exhibit A, p 89). Dr EndreyWalder had the benefit of examining the plaintiff on two subsequent occasions and provided further reports dated 16 March 2010 and 1 July 2011. The latter report was relied on not only by the plaintiff, but also by the defendant in the proceedings. In March 2010 Dr EndreyWalder regarded the plaintiff as having a quite significant ongoing functional deficit because of the relative weakness of his left arm and hand (Exhibit A, p 140). His final report dated 1 July 2011 provides an opinion that he has a relative weakness in the left upper limb and remains with a marked sensory deficit in the ulnar nerve distribution of the left forearm and hand (Exhibit A, p 147). Dr EndreyWalder considered him as being fit as of July 2011 to perform moderate duty physical activity in his trade as a cabinet maker.
The plaintiff was also examined by Dr D Rea, Plastic and Reconstructive Surgeon who provided reports dated 13 August 2008 and 16 February 2009. He described the plaintiff's injury as "a severe crushing injury" (Exhibit A, p 94). In his first report Dr Rea was of the opinion that the plaintiff would have reduced capacity in his left hand and arm and "this is reflected in the fact that there is some muscle wasting and reduced bulk in the left forearm compared to that which would have present prior to his injury" (Exhibit A, p 94). Therefore, Dr Rea limited his work capacity at that time to driving and delivering materials that did not weigh more than 10 kilograms.
Dr Rea recorded the skin graft on the ulnar side of the left forearm as being 6.5cms in length and 3cm wide. He described the scarring as follows:
"In all of that area there was a skin graft adherent to the underlying tissues. He did appear to have diminished skin sensation within the area of the skin graft. Extending on either side of the above skin graft was a u-shaped scar running up from that side of the left elbow and down to the area of the point of the skin graft for 12cms. There was then a scar extending for a further 12cms across the front of the lower half of the left forearm but not right across the arm to terminate at the little finger."
That description accorded with my observation of the plaintiff's scarring and the photos in Exhibits D and J.
On 28 July 2009 the plaintiff was examined by Dr Durrell, Psychiatrist, who opined that he was suffering from an adjustment disorder with mixed emotions together with chronic pain syndrome. At the time of trial, the plaintiff was still suffering pain for which he took Panadeine Forte as required, together with Neurofen Plus every two days (T30.40).
The defendant submitted that the bulk of the plaintiff's medical evidence was more than two years old at the time of trial and therefore unreliable. In fact, the plaintiff's injury had stabilised by that time, and whilst there was some improvement, that was accurately and adequately described in the report of Dr Endrey Walder dated 1 July 2011 upon which the defendant relied, together with reports of Dr Steven and Dr Harvey Sutton. Those two doctors confirmed that the plaintiff sustained a crush injury to his left forearm. Dr Steven contended that a compartment syndrome was merely "suspected" and there were no residual signs suggestive of a compartment syndrome. Dr Steven did however opine that "it could be that the timely fasciotomy did prevent the development of a compartment syndrome". Dr Harvey Sutton also diagnosed a crush injury to the left forearm, with a laceration and subsequent surgical scarring. She found no residual evidence of a compartment syndrome, no signs of a complex regional pain syndrome and no objective signs of nerve damage. To the extent that her opinion and that of Dr Steven conflicts with that of Drs Honner and EndreyWalder, I prefer the evidence of Drs Honner and EndreyWalder both on the basis of their qualifications and the period of time over which Dr EndreyWalder, in particular, saw the plaintiff.
Damages
Damages are to be assessed pursuant to the Civil Liability Act 2002. The plaintiff's schedule of damages set out the following heads of damage:
Non-economic loss 35% of a most extreme case
$182,000.00
Past treatment expenses
$8,089.55
Future treatment expenses
$24,265.00
Past economic loss
$66,012.00
Past superannuation loss
$6,903.82
Future economic loss
$232,024.50
Future superannuation loss
$25,522.70
Future domestic assistance
$68,005.00
Total
$612,822.57
The defendant's submission, in the event that the plaintiff was successful, was that damages were to be assessed as follows:
Non-economic loss 25% of a most extreme case
$34,000.00
Past economic loss buffer
$10,000.00
Future economic loss
0.00
Past treatment expenses
$8,089.55
Future treatment expenses
$2,000.00
Future attendant care
0.00
Total
$54,089.55
Of the various heads of damage the parties only agree on past treatment expenses which I will allow in the sum of $8,089.55. I will deal with the various heads of damages seriatum.
For non-economic loss, I find that the plaintiff suffered a serious crushing injury to his left forearm which caused internal bleeding causing a compartment syndrome requiring surgical intervention by way of a fasciotomy, removal of the haematoma and repair of the flexor muscle bellies. That procedure required a skin graft for the purpose of wound closure, following which the plaintiff's left arm was encased in plaster for two months and he underwent physiotherapy from a hand physiotherapist.
The plaintiff has been left with a functional deficit of his left upper arm, which was his non-dominant hand, with diminished grip strength of 50% and some lifting restrictions. He also has an unsightly disfigurement of his left forearm, albeit on the ulnar and volar aspects, but which are cosmetically unsightly. The plaintiff has suffered a chronic pain syndrome and still requires analgesics some five years following his injury. I do not find that he has suffered depression, however, I accept the opinion of Dr Durrell that he has suffered an adjustment disorder with mixed emotion, together with his chronic pain syndrome. I assess the plaintiff's claim for damages for non-economic loss pursuant to s 16 of the Act as 28% of a most extreme case. According to the table in s 16, that represents 14% of the maximum proscribed amount of $520,000, a sum of $73,000.
The future treatment expenses claimed by the plaintiff are as follows:
Supervised gym-related program (Dr Endrey-Walder)
$2,500.00
Psychiatric referral for two to three years (Dr Durrell)
$6,000.00
Psychological support (Dr Durrell)
$3,750.00
Further surgery to excise skin grafted area (Drs Honner, Adler)
$5,180.00
Occasional painkilling medication
$4,855.00
General Practitioner consultations
$780.00
Plastic Surgeon assessment (Dr Adler)
$1,200.00
Total
$24,265.00
The plaintiff gave no evidence that he would undertake any further surgery to excise the skin grafted area. Nor did he present as being depressed or requiring referral to a psychiatrist or a need for psychological intervention. I accept that the plaintiff would benefit from the supervised program recommended by Dr Endrey-Walder, that he has a requirement for ongoing pain killing medication and a need to be supervised occasionally by his General Practitioner. For each of these matters I award the plaintiff $5,000 in total.
Past Economic Loss
The plaintiff's claim for past economic loss falls into four periods. They are as follows:
From 7 October 2007 until 14 April 2008 when the plaintiff returned to Lebanon,
6.5 months x $A500 =
$3,250.00
From 14 April 2008 until October 2008
24.14 weeks x $750 per week =
$18,107.00
From 1 January 2009 to 7 August 2009
31.28 weeks x $300 per week =
$9,384.00
From 1 November 2009 to Present
135.57 weeks x $300 per week =
$40,671.00
Total
$66,012.00
I am not prepared to allow damages for the period when the plaintiff returned to Lebanon. The evidence of his previous employment there is scant and he gave no evidence that he intended to return to work whilst awaiting his application for residential status in Australia to be approved.
Following his arrival back in Australia in April 2008, the plaintiff claims total incapacity for employment from 14 April 2008 to October 2008. Thereafter, for the various periods when he was out of work, the plaintiff's claim is reduced to partial incapacity at $300 per week as set out in the third and fourth periods outlined above.
The plaintiff had a duty to mitigate his damages and did so in respect of the part-time employment he obtained from time to time with Farache Kitchens, Classy Kitchens Pty Limited, Prestige Kitchens and Kitchenland, as well as working in his own business. For the period from his arrival back in Australia he has tendered only one taxation return being his 2010 return for the year ending 30 June 2010. As set out in the third period above, for the period he was employed by Farache Kitchens, his net earning capacity was demonstrated in that tax return to be $360 net for a three day week, or $120 per day. Since 1 November 2009 he has made four applications for employment, has not registered with any employment agency and has done nothing to either retrain for employment or look for alternative work to that of cabinet making. I am not satisfied that the plaintiff has met his duty to mitigate his damages in regard to his past loss, but I find that his injury was productive of loss, particularly for the period up to March 2010 when he commenced his own business in partnership. For past loss of earning capacity I therefore award the sum of $25,000, including his past superannuation loss.
Section 13(1) of the Act provides that in respect of future economic loss, "a court cannot make an award of damages unless it is satisfied by the claimant that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances, but for the injury".
I am satisfied that, but for the injury, the plaintiff would have returned to Australia in April 2008 and thereafter sought work as a cabinet maker. It was work for which he was qualified only by experience, but given his success in obtaining employment with four employers to work on a parttime basis doing light duty work, namely, drawing plans and specifications rather than the heavy work in the industry, I find that he would have been able to obtain employment on a full time basis as a cabinet maker.
Section 13 (2) of the Act requires the court to adjust the amount of damages "for economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury". Had the plaintiff been able to obtain full time employment, I find that he would have earned $600 net per week. I find that the plaintiff has a residual earning capacity, based on the report of Dr Endrey-Walder of 1 July 2011 and he is fit to perform moderate duty physical activity in his trade as a cabinet maker. I do not find that his physical incapacity will endure over the whole of his working life and therefore it is an appropriate case for me to award a lump sum (see Penrith City Council v Parks [2004] NSWCA 201, McArthur Districts Motor Cycle Sportsman Inc v Ardizzoni [2004] NSWCA 145). I therefore award the sum of $75,000 for future economic loss, to include any loss of superannuation benefit.
I am not prepared to make an award of damages for the plaintiff for future domestic assistance. The plaintiff has claimed the sum of $68,000 based on two hours per week domestic assistance regarding heavy duty gardening and shifting furniture on a needs basis as recommended by Dr Endrey-Walder. The evidence is that the plaintiff lives in a home unit and there is no evidentiary basis for such an award.
I therefore award damages as follows:
Non-economic loss
$73,000.00
Past treatment expenses
8,089.55
Future treatment expenses
5,000.00
Past economic loss
25,000.00
Future economic loss
75,000.00
Total
$186,089.55
Contributory Negligence
The defendant pleaded contributory negligence but made no submissions in relation to it. In the circumstances in which I have found the defendant negligent, the plaintiff could not have contributed to his own injuries. There was one aspect of the evidence which may have been relied on, namely, the signs at the entrance to the defendant's premises shown in Exhibit 3 which indicated that there were forklifts in use, and also stated "NO ENTRY AUTHORISED PERSONS ONLY". Those signs however were in English and the plaintiff at the time he visited the defendant's premises did not speak the English language. His evidence was that at the time he visited these premises he had no ability to read the English language. In Lebanon he learnt French (T73.10). I therefore find that there was no contributory negligence by the plaintiff to his injuries.
Orders
I make the following orders:
(1) Verdict and Judgment for the Plaintiff against the Defendant in the sum of $186,089.55.
(2) The Defendant to pay the Plaintiff's costs of the proceedings.
(3) Liberty to apply in respect of costs on 7 days notice.
(4) Exhibits to be returned.
Decision last updated: 21 June 2012
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