Moubarak v Le

[2019] NSWDC 123

District Court

New South Wales

Medium Neutral Citation:	Moubarak v Le [2019] NSWDC 123
Hearing dates:	8 April 2019, 9 April 2019
Date of orders:	15 April 2019
Decision date:	15 April 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 167.
Catchwords:	Motor accidents - assessment of damages – past out of pocket expenses – past economic loss – causal connection – future out of pocket expenses – future loss of earning capacity – future domestic assistance.   Evidence – whether Jones v Dunkel inference should be drawn from failure to call former employer.
Legislation Cited:	Motor Accidents Compensation Act 1999 Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Regulation 2015 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Jones v Dunkel (1959) 101 CLR 298 Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498
Category:	Principal judgment
Parties:	Christopher Moubarak (Plaintiff) Brian George English (First Defendant) Gia My Le (Second Defendant)
Representation:	Counsel: Mr D-L Del Monte (Plaintiff) Mr B Wilson (First and Second Defendant)   Solicitors: Lionheart Lawyers (Plaintiff) Hall and Wilcox (First and Second Defendant)
File Number(s):	2017/256292
Publication restriction:	Nil

Judgment

Introduction

1. On 23 August 2014 the plaintiff was a front seat passenger in a vehicle driven by the first defendant along Parramatta Road, near Petersham. The vehicle was owned by the second defendant. The vehicle was on its way to a wedding. The plaintiff was the groom’s ‘Best Man’. Befitting the celebratory occasion, the vehicle was a white manual 1951 Jaguar. What it possessed in style, however, the vehicle lacked in modern functionality. There were no seat belts and no driver or passenger safety bags. At about 1:45 pm the brakes of the Jaguar failed and the vehicle collided with the rear of a stationary vehicle (a Honda Civic Sedan). The collision was quite dramatic – it caused a 6-car pile-up on a notoriously busy road in the metropolitan part of Sydney.

2. The plaintiff claims that he suffered a range of personal injuries and disabilities as a result of the collision. The police and ambulance were called. The plaintiff brings this proceeding to claim damages against the driver and the owner of the 1951 Jaguar vehicle.

3. Liability has been admitted; which means that the issues before me concern only the assessment of damages.

4. The schedule of damages which the plaintiff’s counsel handed up on the first day of the hearing indicates a modest claim. What is sought by the plaintiff is the recovery of his past out-of-pocket expenses (quantified at $7,318.30), past economic loss, future out of pocket expenses, a buffer for future economic loss and future care. In all, the aggregate of the claim is just over $64,000.

5. For its part, the defendants essentially deny that the plaintiff has any residual injury or disabilities as a result of the motor vehicle accident. The defendants go further, in fact, and say that the plaintiff has grossly exaggerated the extent of his injuries and current complaints of symptoms. They say he is not entitled to anything for the future and vigorously dispute the quantum of the claims of past out-of-pocket expenses and past economic loss.

Extent of plaintiff’s injuries and disabilities

Plaintiff’s evidence

6. On 16 April 2015 the plaintiff provided a signed written statement to the insurer’s investigator (Quantumcorp), in relation to his claim. Most of the statement was directed to the circumstances of the accident, however the plaintiff did give a description of the immediate impact of the accident. He was scarcely cross-examined on its content, so I accept its correctness.

7. In the statement, the plaintiff said that since he was aware that a collision was coming, he braced himself, covered his head and turned his legs to the left-hand side (to limit the risk that they may break). He said that after the impact, his body was propelled forward and he hit the dashboard, before being rocked backwards into his seat; and then going forward into the dashboard hitting his head a second time. He said that after the collision he could not open his door at first, since it was jammed. He was able to knock it open with his leg and right hand. His left hand felt numb. He used his right hand and leg to force the door open. He said he got out of the vehicle and cradled his left hand with his right hand. He was able to walk to the bus stop bench by the side of the road and sit down. Eventually ambulance officers approached him. He had a cut on the top of his head and the ambulance officers patched that up for him and the ambulance officer also patched his right knee up in the ambulance.

8. He described his then current injuries as consisting of cramping and fatiguing in his left arm, and some pins and needles and numbness in his left arm. This fatigue in his left arm, he said, occurred during work hours and the pins and needles occurred in the morning and in the evening. He said he also had neck pain and left upper back pain occurring during work hours because the nature of his work involved a lot of manual handling. His right knee also experienced a deep dull ache during work hours. If he wished to exercise on the treadmill, doing some jogging, he experienced the dull ache after about 15 minutes. He also received aches after long walks or going up stairs. His neck and left upper back pain also gave him headaches.

9. In his examination in chief at trial, there was no real elaboration upon his statement of injuries. He said that after the wedding he went to the hospital with pain in his left arm, back and neck. Problems seemed to develop with his hip. He said he felt better after receiving the injection recommended to him and administered by Jenny Saunders, a sports physician, described further below. He says he largely took care of his own rehabilitation. With reference to the surgical intervention in relation to his left wrist, recommended by Dr Myers, he said he can’t afford it nor to take time off work for the rehabilitation. He said that if he had the money he would take the treatment.

10. The plaintiff explained the nature of his own rehabilitation. He said he tried to adhere to the advice that he gives his patients of encouraging them to ‘give things a go’, implicitly suggesting that they should exert themselves. He said that in his own case, he went to a gym two or three times a week to do sit-ups, core cardiovascular work and pull ups. He also engaged in boxing and he generally conditioned himself to work at a high level of intensity. He said that he had eased off since November 2018 after noticing fatigue and cramping. He had experienced less pain since he had stopped going to the gym.

11. Under cross-examination, the plaintiff’s account of his boxing activities was closely scrutinised. He said that in 2016 he had been doing boxing once a week for a period of six weeks. He was training for an amateur bout in a Rockdale gym. He accepted that boxing is, of its nature, a very physical activity; stressful on the wrists and arms and involving high-intensity. Strikes to the head could result in him sustaining a whiplash injury. Some of the training, at least to some degree, involved using a punching bag. In about the first half of or middle of 2016 that the plaintiff was receiving sacroiliac injections from Dr Saunders and was complaining to her of left wrist injury.

12. The plaintiff was also challenged as to the histories he had provided to his treating doctors and medicolegal specialists. When he saw Dr Khan in December 2017, and spoke of his restrictions in doing domestic chores like vacuuming and washing up, or described his impediments to fishing, he had not disclosed to Dr Khan (or any other doctor) that he had been a participant in a boxing fight. Nor did he disclose complaints of neck pain in 2013, arising from the arduous and physical nature of work as a physiotherapist in which he had just started out.

13. When he complained of pain to the left wrist he did not tell his treating doctors that, back in August 2007, he had been seen by Dr Kennedy and had complained to him of recurrent pain in the left wrist for about two years; which was made worse when boxing. He had not mentioned his previous boxing activity to Dr Myers when he saw him in 2015.

14. Generally, it was put to the plaintiff, in cross-examination, that any left wrist injury (or disability) was not the subject of complaint roughly contemporaneous to the accident. It was not referred to in the plaintiff’s personal injury claim form. He had not referred the injury when he saw Dr Harvey-Sutton in September 2015, nor did it appear in the RPA hospital notes on or about the date of the accident. It did not appear in a medical certificate that was provided to him by Dr Douaihy, his general practitioner.

15. In terms of his leisure/business activities, in 2017, the plaintiff acted as physiotherapist for a local rugby league team. This was, in part, an exercise in building the plaintiff’s ‘brand’, but it nevertheless required him, on occasions, to perform the manual ‘hands-on’ work of a physiotherapist. To do this, on the weekend, after complaining of fatigue during the ordinary working week was, to say the least, counter-intuitive.

16. Further, when under cross-examination, the nature of the strenuous physical regime that the plaintiff had subjected himself to in the period from late 2017 to early 2018 was exposed in a series of films posted by the plaintiff on Instagram. The film footage depicted the plaintiff’s participation in climbing a ramp wall climb (17 August 2017), ‘peg board’ (24 August 2017), hanging from a wall for seconds (28 September 2017), ‘rope swinging’ (19 October 2017), climbing bars (15 February 2018).

17. The posts on Instagram all establish what Counsel for the defendant submitted were extreme training activities, befitting ‘Ninja Warrior’-style use of bars and ropes. Even to attempt to engage in such activities would require significant stores of belief in a person’s upper body strength and flexibility.

18. Thereafter, in the winter of 2018, the plaintiff played soccer (as a striker) for the Canterbury Junior Football Club for the season lasting 3 months.

19. In summary, the cross-examination had indicated that from 2016 through 2018, the plaintiff had engaged, at various times (albeit not continuously) in vigorous sporting activities, from his boxing, to cross-fit ‘Ninja Warrior’-style training to soccer.

20. When it was suggested that his engagement in these activities was inconsistent with his evidence of his inability to undertake commonplace domestic chores, the plaintiff gave unconvincing evidence, to the effect that he was engaged in ‘one off’ feats in respect to which he over-estimated his capacity. I do not accept that evidence. To the contrary, the engagement in some of the activities I saw filmed could only have been the product of sustained training. They were a reflection of the plaintiff’s own persistence. As occurred in the example with the climbing of the bars in February 2018, it had taken the plaintiff 7 months to use his upper body strength to raise himself above the bars.

Medical evidence

21. After the immediate collision, police and ambulance arrived on the scene. Those officers noted that he had a laceration to the top of his head and a laceration to his right knee. The lacerations were patched up.

22. That afternoon, the plaintiff went on to perform his duties as best man at the wedding. He gave a speech. He danced that night.

23. Nevertheless very early the next morning, the plaintiff presented to the Royal Prince Alfred Hospital emergency department. The triage comment from the notes indicated that there was no loss of consciousness, but recorded complaints by the plaintiff as to lacerations to the left elbow, to the back of his head and right knee.

24. On 25 August 2014 an x-ray and ultrasound were performed of the left elbow. The x-ray was normal, but the ultrasound indicated thickened ulnar nerve. On the same day, the plaintiff reported to his employer, Mr Haddad, that he sustained injury to his left elbow, right knee, neck and lower back.

25. On 11 September 2014 the plaintiff received an x-ray of his cervical spine. No abnormalities were demonstrated.

26. The plaintiff saw his general practitioner, Dr Douaihy (of the Marrickville Road Medical Practice), on 11 September 2014. He reported suffering ongoing pain and discomfort to his neck, left upper limb (with pins and needles of the forearm), and right knee pain.

27. From September 2014, until about April 2016 records produced on subpoena show the plaintiff was receiving regular physiotherapy treatment from the physiotherapy practice where he was employed, known as ‘Canterbury Bankstown Physiotherapy’.

28. On 4 February 2015 the plaintiff completed the motor accident personal injury claim form. He described his injuries as injury to his head and ear, including lacerations, injuries to left shoulder, left elbow, upper back and right knee and shock. He listed as his disabilities, constant pain and restriction of movement in his neck, back, left shoulder and right knee. He said he had difficulty performing his pre-injury work duties. He said he required assistance with house duties. He complained of suffering from regular headaches, dizziness and ringing in the ear as well as pins and needles in his left forearm. He said he felt stressed and anxious.

29. Dr Douaihy referred the plaintiff to Dr Medhat Guirgis, a consultant orthopaedic surgeon, who saw the plaintiff on 11 March 2015. The plaintiff gave a history to him that since the accident, he continued to complain of pain, clicking and a sense of weakness and stiffness in the left elbow. Being left-handed, he had difficulties writing reports in the afternoon. If he relaxed in the sitting position he immediately suffered from the pins and needles spreading down his left forearm to the left-hand and little and ring fingers and tightness and cramping of the medial flexors in his forearm. Towards the end of the week he suffered from frontal headaches.

30. Dr Gurirgis supplied a provisional diagnosis that the plaintiff had suffered post-traumatic mechanical derangement of the cervical and thoracic areas of the spine; post-traumatic medial epicondylitis with ulnar cubital tunnel syndrome, and post-traumatic symptoms in the right knee caused by the contusion of the patellar articular surface, with triggering of the symptoms of chondromalacia patellae.

31. The plaintiff saw Dr Douaihy again on 8 April 2015. Dr Douaihy reported the plaintiff’s complaint of ongoing symptoms and pains interfering with his sleep and daily activities and, at some point, with his work. He saw Dr Douaihy again on 23 April 2015, complaining of ongoing symptoms concerning: his left upper limb, mainly from the elbow down. This was said to be interfering with his work because of the manual handling he needs to do as a physiotherapist. He reported numbness and pins and needles in the fourth and fifth fingers of the left hand; fatigue in the left hand and arm; ongoing neck pain, right knee pain and the frustration associated with these symptoms.

32. On 6 August 2015, the plaintiff saw Dr Douaihy again. Dr Douaihy reported the plaintiff’s complaints of ongoing pain and limitations in his movements. He had clicking in the elbow, neck pain and ongoing back pain across the day. The pain in his left wrist and arm interfered with his work, especially massaging. It is pertinent that this is the first reference I could locate to a specific complaint about a left wrist problem, although it was not clear whether the pain in this area was associated with pain in his left arm generally.

33. On 28 August 2015 the plaintiff saw Dr Frank Machart, an orthopaedic surgeon, at the defendant’s request. Dr Machart reported the plaintiff’s complaints as pain apparent in his left elbow (medial epicondyle), left forearm, right knee (anterior knee pain), lower back, neck and headaches. Dr Machart diagnosed subluxation of the ulnar nerve in the left elbow; stretching or injury to the anterior cruciate ligament in the right knee; a strain of the lumbar and cervical spine.

34. Dr Machart expressed surprise that in circumstances where he was not immediately hospitalised, and where no surge when intervention had been conducted, that 12 months after the accident, the symptoms had not eased or settled. He suggested it may be worthwhile conducting an MRI of the cervical spine, and of the lumbar spine, as well as a dynamic ultrasound of the left elbow.

35. On 17 September 2015, the plaintiff also saw Dr Philippa Harvey-Sutton, a consultant occupational physician, at the defendant’s request. This was only a month after the plaintiff had seen Dr Machart at the defendants’ request: there was no explanation provided as to why the defendants thought it necessary for the plaintiff to attend two medical practitioners within the space of about a month. Be that as it may, Dr Harvey-Sutton reported the plaintiff’s complaints of tightness and cramping on the left side of the back of the neck, and, to a lesser extent on the right side and upper back. This was associated with weekly headaches. In the left arm, the plaintiff complained of a clicking feeling in the left elbow on flexion. He also complained of deep ache with cramping and pins and needles in the left forearm extending into the little fingers. There was tightness and deep ache in the lower back, mainly on the right side. In relation to his right knee, although the plaintiff described a deep ache under the patella, with patella tightness, there was no radicular (or non-verifiable radicular) complaints in the upper limb and/or lower limbs.

36. Upon examination, the plaintiff presented to her with a normal range of spontaneous movements of the head and neck, the upper and lower limbs and trunk. Tests were carried out on all these parts of body. Dr Harvey-Sutton diagnosed a soft tissue injury of the neck, soft tissue injury with temporary bruising of the left elbow and laceration of the right knee. Her prognosis was that his condition was good and would settle in the fullness of time.

37. By 4 November 2015, the plaintiff had been seeing Mr Hamish Wright, a physiotherapist, for several months regarding his ongoing lower back and right hip problems. Mr Wright commented that the plaintiff’s problems had much improved and that he was coping much better at work and with sport; although he still got intermittent problems, particularly after long days at work. Mr Wright found, on examination that the plaintiff had mildly positive SIJ signs, stiffness in the lumber spine and restricted hip flexion/internal rotation with a mildly positive quadrant. Mr Wright recommended that the plaintiff see Dr Jeni Saunders, a sports and exercise physician.

38. On 12 February 2016, by now 18 months since the accident, the plaintiff saw Dr Douaihy again. He complained to his doctor of exacerbation of pain every time he exerted himself. Examination revealed tenderness, stiffness and limitation of movements.

39. On 24 March 2016, the plaintiff saw Dr Saunders. Upon examination, there were signs of sacroiliac joint incompetence on the right. Dr Saunders recommended that the plaintiff undergo a CT scan and injection therapy to the right SIJ, so as to assist with better stability. The same day, Mr Wright wrote back to Dr Saunders, requesting that Dr Saunders assess the SIJ, with a view to doing PRP injections.

40. Dr Saunders provided a PRP injection into the right SIJ on 14 April 2016. Scan findings of the same day were consistent with right SIJ incompetence, with associated adductor, hamstring and psoas tendon enthesopathy. Bilateral epicondylitis was present in the elbows.

41. On 17 May 2016, Dr Saunders reported that, four weeks after the injection in the SIJ, the plaintiff’s symptoms had stabilised. It was not expected that further injections would be required. Dr Saunders recommended that the plaintiff undertake manual therapy and muscle retraining for his lumbar pelvic stabilisers; working on his gluteus medius and iliacus. She suggested a review in eight weeks’ time.

21. From May 2016 until August 2016, the plaintiff received regular physiotherapy treatment, from ‘Take Control Active Rehab’.

22. On 30 June 2016, the plaintiff saw Dr Douaihy again. He reported as having woken up that morning with pins and needles in his left upper limb. He was experiencing ongoing neck pain and stiffness, ongoing back pain with stiffness. He was working with his patients, but at a lesser speed and with pain. He was also getting anxious and depressed.

23. Dr Saunders saw the plaintiff again on 12 July 2016. This time, she examined the plaintiff’s left elbow and wrist. It was reported that he had had trouble holding a pen. The plaintiff informed her that carrying anything for long prolonged the pain and discomfort in his elbow and wrist. Clinical examination demonstrated tenderness over the ulnar nerve at the elbow. Tenderness was elicited at the wrist over the proximal carpal row with possible positive Watson’s shift test. Dr Saunders recommenced an MRI scan with a dedicated MSK radiologist. More positively, the SIJ had continued to improve.

24. On 18 July 2016, an MRI was done of the left wrist and left elbow. As to the former, there was a full thickness peripheral TFC tear, with part avulsion of the foveal/ulnar attachment and mild to moderate interstitial injuries of dorsal greater than ventral distal radio ulnar ligaments. The radiologist suspected that the dorsal distal radio-ulnar ligament was at least moderate grade in severity.

25. As to the left elbow, the MRI showed mild to moderate distal triceps insertional tendinopathy, with regular high signal change with olecranon process. Mild to moderate olecranon bursitis was noted; as was mild to moderate associated joint effusion. The radiologist considered that there was a subluxsing ulna nerve and ulna neuropathy and mild bicipital radial bursitis.

26. On 4 August 2016, the plaintiffs saw Dr Stuart Myers, a hand and wrist surgeon affiliated with the Prince of Wales Private Hospital, following a referral from Dr Douaihy. Dr Myers reported that an MRI investigation revealed a foveal tear of the TFC and the ulna was lying relatively volar in the sigmoid notch. Upon examination, with elbow flexion extension there was clicking of the ulna nerves bilaterally. There were weekly positive tinel signs over both ulna nerves, but more on the left than the right. The left elbow flexion test was positive weakly. In Dr Myers’ opinion, the plaintiff had suffered a tear of the TFC, with some instability of the distal radio-ulnar joint and some mild irritation of the ulna nerve, predominantly of the elbow.

27. The plaintiff commenced this proceeding on 3 August 2017.

28. On 16 August 2017, notes from Dr Douaihy (the record of which was in evidence up until 17 January 2018) reported the plaintiff’s indications that he had been working hard to establish his business, despite pain in the left elbow. At the end of the working day, his pain was worse with neck, upper back, right lower back and right knee. Upon examination, there was still tenderness on the medial epicondyle, clicking of the elbow flexion.

29. On 13 December 2017 the plaintiff was examined by Dr Sikander Khan, general surgeon practising in musculoskeletal medicine.

30. Dr Khan found, on examination of the cervical spine that the neck was held in neutral position. Flexion of the lower cervical spine (from C6/7 to T1/2 region of the midline for the site of the pain) was a normal range. Extension was possible up to ¾ of normal range. Lateral flexion was possible up to ¾ of normal range on the left side and normal range on the right side. Examination of the upper limbs revealed normal neurology. Examination of both shoulders revealed normal contours. There was tenderness noted over the medial epicondyle.

31. Dr Khan opined that as a result of the motor vehicle accident, the plaintiff sustained the following injuries: mild head injury with abrasion of scalp; musculoligamentous injury, facet joint and disc trauma of the cervicothoracic spine, musculoligamentous strain of the thoracolumbar spine, musculoligamentous injury of the lumbosacral spine, soft tissue injury to the left elbow, causing epicoldylitis and ulnar neuropathy at the left elbow; soft tissue injury to the left wrist with tear of the TFC, soft tissue ligamentous injury of the right sacroiliac joint; soft tissue injury to the right knee causing contusion a laceration and patellofemoral pain and psychological sequelae. Dr Khan’s prognosis was for the residual symptoms to remain in the areas injured with periodic flare up of his symptoms. He believed that the plaintiff’s condition had stabilised.

32. The last of Dr Douaihy’s notes before me was dated 20 February 2018. The doctor’s notes of the consultation referred to the plaintiff experiencing left elbow pain and discomfort. The doctor also noted a painful lump over the scar on the right knee; however that is not appear connected with the accident

33. From January 2018 through March 2019, records show that the plaintiff was receiving regular physiotherapy services from ‘Insync Physiotherapy’.

34. In June 2018, the plaintiff saw Assessor Parmegiani at the direction of the State Insurance Regulatory Authority (SIRA). The contents of the report were admitted, but subject to a limitation upon admissibility: it was limited to proof of the plaintiff’s complaints as to his health. Relevant parts of the history taken by the Assessor included the plaintiff’s complaints that although the pain associated with his upper back and neck, and pins and needles in his left elbow had improved, over time, it had not been completely resolved. The report also noted the Plaintiff’s expressed reluctance to undertake surgery on the left wrist, as this would mean he would lose up to 4 months off work; the plaintiff continued to remain in pain, which was more prominent at the end of a long day at work. His energy dropped off after 2pm.

35. In October 2018, the plaintiff saw Assessor Rosenthal at the direction of the SIRA. This report was admitted on the same basis as the report of Assessor Parmegiani. Relevant parts of the report were the plaintiff’s complaints of neck stiffness, with varying pain levels and weekly headaches. He reported to Assessor Rosenthal upper thoracic stiffness and discomfort, pain in the right SIJ and lumber region. He wore orthotics in his shoes. His right knee was painful at the end of the day. His left shoulder was still painful. He continued to experience pins and needles in the ulnar nerve distribution and the fourth and fifth digits of his left hand. His left shoulder generally felt tight.

Past out of pocket expenses

57. These were collated in a separate tab in the plaintiff’s tender bundle (Ex PXI, Tab 25).

58. When he saw the plaintiff in August 2015, Dr Machart had regarded the physiotherapy treatment that the plaintiff had been receiving, to that point, as reasonable. Dr Harvey-Sutton gave the same assessment when she saw the plaintiff the following month. Indeed, she thought that the plaintiff could benefit from a further 10 sessions of physiotherapy at Bounce Back, to receive instruction and supervision in core strength exercises. She noted that the manner in which he performed his physiotherapy treatments should also be assessed by a physiotherapist to confirm that he was performing the techniques in an ergonomically advantaged manner.

Past and future economic loss

59. At the time of the accident, the plaintiff was just under 26 years of age. The plaintiff had been employed as a physiotherapist at Canterbury Bankstown Physiotherapy for two years. His boss was Mr Charlie Haddad. He had earlier received a Master’s degree in physiotherapy from Sydney University. He was essentially at the beginning of his career as a physiotherapist.

60. In his personal injury claim form, when asked to describe his employment situation, he said that he was a full-time employee (with Canterbury Bankstown physiotherapy). Asked how many separate periods of time he had been away from work because of the accident, he identified the period 25 August to 27 August 2014 (incl). But he also indicated that he had lost income from self-employment. He described his business as “Proact1v3 Physiotherapy”, which he said he operated from a spare room at home. He claimed he was losing approximately $100 per week as he had not returned to his business. He explained that he could not employ someone to perform his “specialised” work.

61. A summary of the plaintiff’s personal tax returns, before and after the accident, which was in evidence is as follows:

FYE	PAYER	GROSS SALARY	INTEREST	OTHER INCOME	TOTAL INCOME	TOTAL DEDUCTIONS	TAXABLE INCOME
2013	Haddad Physiotherapy	8,760	8,760
2014	Haddad Physiotherapy	54,924	54,924	56,452 [1]
2015	Haddad Physiotherapy	57,134	175	1044	58,353	2,496	55,857
2016	Haddad Physiotherapy	59,777	619	9864	70,080	70,080
2017	Haddad Physio Insync Physio	15,780 30,000	285	11,001	57,066	57,066
2018	Insync Physio	35,260	44	5000	40,304	890	39,414

Charlie Haddad

62. On 18 February 2016, the plaintiff’s former employer, Canterbury Bankstown Physiotherapy wrote to the defendants’ legal representatives, following the latter’s request for information. The letter confirmed that the plaintiff had worked as a casual employee (to that point) since January 2013, averaging 40-45 hours per week. The plaintiff’s former employer said that, since the accident, the plaintiff had had trouble working for greater than a five to six hour day; and that he reported upper back and neck pain towards the end of the shift. Headaches were experienced weekly.

63. In the same letter, the former employer said that since the accident, the plaintiff had had a number of sick days: half and full days. Mr Haddad estimated that up to 18 February 2016, the plaintiff had taken 28 days’ sick leave off. Since he was a casual, he had not been paid for the period that he was out of work.

64. In Dr Khan’s report of December 2017, the plaintiff reported to him that he had 2 to 3 days off work, then returned to work as a physiotherapist, only to take time off work intermittently which added up to about 31 days off work.

Plaintiff’s evidence at trial

65. In his examination in chief, the plaintiff said that prior to the accident he worked a 12 hour day (with a one and a half hour break during the day) assisting Charlie Haddad with assessment, diagnosis and general involvement in physio treatment. This was “hands on” involvement, featuring therapy, massage, stretching, and taping.

66. The plaintiff said that after the accident he was unable to work the whole day. He felt tightness and pain and had to push through the day. He said that he was absent from work for a period of between 20 and 25 days. Some of the days he had half the day off.

67. During the financial year ended 30 June 2017, the plaintiff became self-employed as a physiotherapist, working in a practice trading by the name of “Insync” twice a day for half days. He said he had two employees: one of them was Karina, who was a trainee in her second year; the other, Zacchary, who was a physio in his first year. He did not feel that he could leave the practice alone to them in order to undertake the surgery recommended by Dr Myers. He feared loss of clients to other physios.

68. Under cross-examination, the plaintiff was challenged as to his failure to declare income from his personal physiotherapy practice for the financial years ended 30 June 2014 and 30 June 2015. Aside from relevance to the plaintiff’s general credit, the evidence related more specifically to the reliability of the plaintiff’s evidence that he had lost work between 20 and 25 days. In this regard, the plaintiff was also referred to the report of Dr Guirgis, who, when he saw the plaintiff on 11 March 2015, recorded the plaintiff had indicated to him that he had only taken a few days off from work and had resumed duties. When the plaintiff was referred to this part of Dr Guirgis’ report, I thought he appeared to be determined to give implausible answers.

69. The plaintiff was also referred, under cross-examination, to PAYG summaries of earnings, which showed that his gross earnings for the 2015 financial year exceeded those of the 2014 financial year. The plaintiff accepted that the figures did not support his estimate of the number of days he had off.

70. In terms of his more recent position, the plaintiff agreed that his own business as a self-employed physiotherapist was going well. That concession was properly made. He believes that in the current financial year his sales would have been expected to have doubled. He has, as he had accepted, hired staff and expects his revenue to increase next year. He accepts that being in a small business provides greater flexibility with his work hours in comparison with being an employee.

Other evidence

71. Dr Machart said that it was reported to him that the plaintiff returned to his pre-injury duties and hours. He said that this was appropriate, as he believed that the plaintiff was fit to perform those duties, without restriction. There was no likelihood that the plaintiff would suffer any loss of income.

72. Dr Harvey-Sutton similarly indicated that she had been informed by the plaintiff that he had only taken a few days off work because of the accident. From the time that she saw him in September 2015, she believed that he was fit to perform pre-injury duties as a physiotherapist. She did not consider that there was likely to be any permanent restrictions relating to the accident.

73. When he saw the plaintiff on 13 December 2017, Dr Khan said he expected the plaintiff would work eight hours a day, five days a week, with intermittent rest breaks every 15 minutes. That meant, in effect, that he would be working 6-7 hours a day. Dr Khan thought that the plaintiff would continue to work as a physiotherapist, but may have to reduce his hands-on work, if possible, as his practice expanded. He envisaged that the plaintiff would require intermittent days off during periodic exacerbation of symptoms and for treatment.

Future out of pocket expenses

74. When he saw him nearly a year after the accident, Dr Machart considered that it was only the plaintiff’s left elbow that might require further treatment. No medication was suggested, although further radiological investigation, and possibly specialist intervention from an orthopaedic surgeon may be warranted in relation to the left elbow. This could involve a transposition of the ulnar nerve in the right elbow.

75. When she saw the plaintiff in September 2015, Dr Harvey-Sutton endorsed the idea of the plaintiff receiving 10 further sessions of physiotherapy, to assist him with the instruction and supervision of core strength exercises. This, however, should be supervised to confirm that he was performing the techniques in an ergonomically advantaged manner. She thought that medications that he was taking should pursue persist for another six months. She saw no requirement for further specialist intervention, including surgical intervention.

76. Dr Harvey-Sutton thought that, for the sake of completeness, it would be appropriate to do an MRI scan of the left elbow.

77. Dr Khan said that the plaintiff required regular follow up visits to his general practitioner 4-5 times per year (at a cost of $100 per visit). He thought he required intermittent use of analgesic medication and anti-inflammatory medication. He expected him to need intermittent physiotherapy for periodic flare up of his symptoms: this was in the order of between 12 and 16 treatments per year, at a cost of $120 per visit.

78. Dr Khan also found a likely future need for further investigations. First, there was a likely need for an MRI scan of the neck (to exclude disc pathology). Should there be any abnormalities, he would be required to be referred to a spinal surgeon, at a cost of $400 for an initial visit and $200 per subsequent visits.

79. As to the left elbow, this would likely require nerve conduction studies for the upper arm, to exclude double crush syndrome. Should symptoms deteriorate in the left elbow, he would require an ultrasound guided corticosteroid and local anaesthetic injections in the left elbow.

80. As to the left wrist, he will require arthroscopic assessment for the TFC lesion noted on the scan. The cost of this procedure was likely to cost between $4-5,000, with additional post-operative physiotherapy and rehabilitation.

81. Dr Khan provided a supplementary report on 13 December 2017, specifically to address Dr Harvey-Sutton’s report for the defendants. Aside from noting the age of the report and the investigations that had subsequently been undertaken since then, Dr Khan disagreed with her views as to his likely future treatment needs, domestic assistance and work capacity.

82. When he gave evidence, the plaintiff said that he was not taking any prescribed medication. He did however take Nurofen, and bought a pack, for about $15, once a month. It would take these tablets once or twice a week after feeling the effects of the working week. He said he was receiving physio at his physiotherapy practice, administered by his employee Karina, once a week. If he was receiving this externally, he thought that he would have to pay between $60 - 80 per week. If he did not have physio, he said he would feel discomfort and pain in his back, left arm and knees.

Future care

83. When he gave evidence at the trial, the plaintiff referred to the circumstances that he continued to reside with his parents in Bexley. He said he had difficulty assisting with vacuuming. This required him to hold the ‘vac pack’ and to use his left hand (he being left hand dominant). This caused him fatigue.

84. When he saw the plaintiff on 26 August 2015, Dr Machart recorded the plaintiff saying that he was unable to make his bed at home and was unable to vacuum. But Dr Machart said that he did not see any confirmation of a serious injury that would prevent the plaintiff from conducting such duties. He did not see any medical confirmation to support requirements for future domestic assistance.

85. Based upon what he had told her about difficulties with vacuuming, Dr Harvey-Sutton thought that the plaintiff could be assisted by receiving one hour of domestic assistance per week, for the first 12 weeks. She did not think his need for assistance would change beyond that, for the future.

86. Dr Myers said that if the plaintiff was to have a ‘TFC repair’, ie surgery, he would be in a sugar tong cast for six weeks, would be off work as a physiotherapist for a minimum of three months and potentially 4 to 5 months. Dr Myers considered that he needed further investigation of his ulna nerve with an ultrasound by John Korber. He added that if and when the plaintiff was ready to take some time off, he should return for review. This indication was supplied in August 2016. There is no indication that the plaintiff has sought further review from Dr Myers.

87. When he saw the plaintiff in December 2017, Dr Khan was informed by the plaintiff that since the accident his brother and family members had been helping him with his share of the house chores such as washing up and hanging up washing.

88. Dr Khan said that he thought that when the plaintiff moved out to live on his own, he expected that he would require domestic assistance in the order of 3 hours per week for heavier household chores and home maintenance activities.

89. Dr Machart did not identify any pre-existing condition unrelated to the motor accident.

Issues

90. The issues for the court concern the plaintiff’s alleged entitlement and the quantum of the following heads of damage:

1. past economic loss;

2. past out-of-pocket expenses;

3. future loss of earning capacity;

4. future commercial care and assistance;

5. future out-of-pocket expenses.

The parties’ contentions

Defendant’s submissions

91. The defendants’ submissions were as stark as they were straightforward. They accept that the plaintiff is entitled to some past out-of-pocket expenses, although these are very minor after taking into account payments previously made by the defendant (per s 83 of the Motor Accidents Compensation Act 1999). Otherwise they contend that no allowance should be made for any additional head of damage claimed.

91. The primary basis for the defendants’ position is a wholesale attack upon the credit of the plaintiff. This, they say, precludes acceptance of all of the other heads of damage claimed. They say that the plaintiff misled the insurer in his statement of the lost income. They referred to the plaintiff’s frenetic and energetic sporting activities post-dating the accident as completely inconsistent with claims of future loss of earning capacity and future domestic assistance. They say that these activities were also of such nature and magnitude that meant that the plaintiff provided unreliable or inaccurate histories to the various doctors who treated him or who had assessed him during the course of this litigation.

92. In relation to each of the specific heads of damage in issue, the defendant’s position is as follows.

93. In relation to past out-of-pocket expenses, the defendant submits that the appropriate sum should be $3,207.30; however once the past payments made by the defendant are credited in its favour, the residual amount which is liable is the sum of $244.10. The main source of opposition to the plaintiff’s claim concern the defendant making no allowance for medical expenses associated with is assessment by Dr Saunders, Dr Myers, Dr Anthony and the radiological investigations concerning Concord nuclear imaging & medical imaging Bankstown. All of these, the defendant says, were expenses that could not be said to be related to the accident.

94. In relation to past economic loss, the defendant contends that all of the objective evidence is against the plaintiff’s evidence that he lost 25 days from work. This appeared in his personal injury claim form, the reports that the plaintiff gave to each of Dr Douaihy (attached to the personal injury claim form), Dr Girurgis, Dr Machart and Dr Harvey-Sutton. Further, the defendant referred to the PAYG summaries indicating that there was no wage loss in the 2014 and 2015 financial years. Moreover, the defendants invite me to draw a Jones v Dunkel inference from the plaintiff’s failure to call Mr Haddad. They also rely upon the plaintiff’s omission to tender wage records, tax returns for the 2014 and 2015 years (which were the subject of a call) and bank records which may have enabled the plaintiff to substantiate his claim.

95. Asked for their view as to what was to the plaintiff’s present injuries, the defendants say that although her report is quite aged, the report of Dr Harvey Sutton has turned out to be close to the mark. That report, the defendant says, indicates that by September 2015, there were no serious abnormalities impinging upon the plaintiff’s ability to work, his ability to render domestic assistance and his leisure activities.

96. In relation to the other heads of damage, concerning the future, there are two facets of the defendants’ attack. First, there is the general credit attack which assumes particular significance when the Court is being asked to predict what the plaintiff might do in the future on such matters as future medical treatment. Secondly, the defendants submitted that the only real question as to any further or future incapacity of the plaintiff must be based upon his alleged left wrist injury. In this regard, the defendant says that any left wrist injury which the plaintiff has was not caused by the motor vehicle accident: it was present as early as 2007 when the plaintiff had participated in boxing activities for two years. The plaintiff did not complain of any left wrist injury at a contemporaneous point and, to the extent that the plaintiff has had troubles with the left wrist since the accident it has been entirely due to his leisure activities; principally, his boxing. The defendant says that to the extent that there is medical evidence from doctors as to the nature of the left wrist injury and suggested forms of treatment, the plaintiff had withheld from his reports to those doctors mention of these activities that had occurred before and after the motor vehicle accident.

97. Accordingly, the defendants say there is no basis for any compensation for loss of earning capacity. The defendants say that the causation issue disposes of this claim. Alternatively, they point out that to the extent that Dr Myers had suggested a potential need for future surgery, that finding was highly provisional - it was couched in terms that suggested that further investigations were required - and, further, everything that the plaintiff had done since the accident had occurred was inconsistent with the likelihood that even if given the opportunity he would take the surgery. They say, for example, that the time off required to undertake the surgery and recover from it would not have resulted in a loss of business - the plaintiff had already indicated that he was building up his business in a way which would mean that he would need to be less ‘hands-on’ and could deputise to his employees. There was no basis, the defendants submit, even for a buffer sum to be awarded for future loss of earning capacity.

98. For similar reasons, the defendants say that no allowance should be made for future medical treatment. They say that the defendant had consciously refrained from taking medication in the past. They say that to the extent that the plaintiff is receiving physiotherapy is doing so from his own employee at his practice, for free. To the extent that the plaintiffs claim is based upon the opinion evidence of Dr Khan, that evidence was tainted because of the incomplete or inaccurate history that the plaintiff had given to that professional. In this regard, the chronological sequence indicates that the plaintiff had undertaken both energetic health retreats (featuring a 9.6km beach run on one such retreat) in 2016 as well as a range of strenuous ‘cross-fit’ activities in 2017, and specifically, the five months leading up to his examination by Dr Khan. Yet the plaintiff did not see fit to disclose those activities to Dr Khan. They also rely upon Dr Giurgis’ certification of the plaintiff as being fit from March 2016 when he was seeking medical evidence to support his aspiration to engage in combat recreational activities.

99. In relation to future domestic assistance, the defendants repeat their submission on causation.

100. They also invite a Jones v Dunkel inference to be drawn against the plaintiff for his failure to call either or both of his parents to speak as to past economic loss and the level of domestic assistance that the plaintiff has rendered in the past, prior to the accident, and such assistance as he had rendered after the accident had occurred.

Plaintiff’s submissions

102. The plaintiff’s Counsel commenced his submissions by rebutting the attacks on the plaintiff’s credit. He said that if the defendants wished to make out allegation of fraud in the prosecution of the claim for damages, they should have pleaded this (per r 14.14 of the Uniform Civil Procedure Rules). Other explanations were given in response to the defendants’ credit attack. He said, for example, that there was some ambiguity in a key question (Q44) in the personal injury claim form. He said that the plaintiff did not seek to hide the Instagram footage showing his strenuous activity in the years 2017 and 2018. In response to the suggestion that the plaintiffs complaint about his left wrist was a recent invention, the plaintiff’s counsel took me to a reference in Dr Khan’s report which appears to suggest that an ultrasound had been performed in respect to the left wrist on 25 August 2014: this, he submitted, could only have arisen upon a complaint. He said that the defendant was effectively cherry picking aspects of the reports from their medical reports, without giving any due recognition or credit to aspects of those reports which support the plaintiff’s case.

103. In relation to the claims of economic loss, counsel for the plaintiff submitted, as a preliminary point, that no Jones v Dunkel inference should arise from the plaintiff’s failure to call Mr Haddad. He relied upon an affidavit tended on the last day of the hearing which showed attempts to get Mr Haddad to come and give evidence.

104. Counsel for the plaintiff said that there were a range of sources from which it could be established that the plaintiff had more than just two or three days off from work, to sustain the claim for past economic loss. These included a clinical note from the Canterbury Bankstown physiotherapy practice dated 16 May 2015, a certificate from Dr Saunders which confirms that having undergone a medical procedure on 14 April 2016, the plaintiff was not fit for work for the remainder of the week (this could only have amounted to two days); and other notes produced on subpoena by the plaintiff’s general practitioner, Dr Douaihy, indicating many surgical consultations in the period between the date of the accident and 16 August 2017. Counsel for the plaintiff emphasised that this was a modest claim - the issue is not so much that the plaintiff could not do things but that repetition (I took him to mean) of manual physiotherapy tasks made matters worse. He said, with reference to Mr Haddad’s letter of 18 February 2016, that it is not inherently implausible that the plaintiff would have taken off the days referred to if that number was spread over the 18 months since the accident had occurred. He also cited the evidence from the defendants’ Dr Harvey-Sutton, when she gave her opinion in 2015, that it would not surprise her that the plaintiff had a period off from work.

105. As to a claim for future loss of earning capacity, this was put on the basis that if the plaintiff were to obtain surgery for his left wrist, he would need to be absent from work for six months. In other words, this is a contingent claim. But there was a vague suggestion by Counsel for the plaintiffs that the plaintiff still has issues with ulnar nerve and his hip. He did not elaborate, however, upon the treatment which either of these injuries or disabilities may require.

106. As to the claim for future assistance, this was modestly pitched at a level of one hour per week, but again, it was referable to, or contingent upon, the plaintiff undertaking surgery for his left wrist. When it was suggested to him that the Instagram footage might suggest that the plaintiff was not incapable of rendering domestic assistance now, or in the future, the plaintiff’s counsel said, in effect that the plaintiff had bitten off more than he could chew: that was only for a period where he was engaged in strenuous activities. This was to assist his rehabilitation in a physical sense but was also helpful for his state of mind. He had not returned to some of these activities after he had engaged in them.

Consideration

The plaintiff’s credit

107. I did not find the plaintiff to be a reliable witness. His evidence under cross-examination evinced a determined tendency on occasions to give implausible or non-responsive answers to questioning. This was evident, for example, when he was challenged on his evidence as to the injury to his left wrist. This was a complaint that emerged about six months after the accident, and the plaintiff was challenged as to why the complaint had not previously surfaced in the personal injury claim form or the reporting to medico-legal specialists.

108. Further, in relation to personal tax returns, it became evident that the claim for economic loss represented in the personal injury claim form, was at least initially partly based upon earnings arising from the plaintiff’s own fledgling practice as a physiotherapist which he had not declared to the revenue authority.

109. The extent of exaggeration of the plaintiff’s on-going restrictions in engaging in gentle leisure activities, such as fishing, or domestic duties, such as making the bed or vacuuming, attributable to the motor accident was also exposed, revealingly, from the film footage, posted on Instagram, indicating the plaintiff’s participation in ‘Ninja Warrior’-style training.

110. Finally, and related to the last point, it appears to me that the plaintiff was selective in the information he imparted to some of the medico-legal and treating doctors he saw about the extent of restrictions upon his leisure and domestic activities: he did not tell Dr Khan, for example, of his boxing activities. He mentioned to Dr Khan his restrictions in vacuuming, and other doctors about restrictions upon his pre-accident leisure activities (tennis or fishing) but did not refer to his strenuous cross-fit training undertaken only a couple of months before he saw him, and the boxing before that.

111. In partial answer to this, counsel for the plaintiff submitted that it was incumbent upon the defendants’ to get their doctors to re-examine the plaintiff in light of what appeared in the Instagram film; and particularly to consider the evidence of Dr Meyer. I do not agree. For one thing, this implicitly assumes that the defendants had some long-standing awareness of the film. This assumption was not established. At any rate, the correct course was for the plaintiff himself to put to both Dr Meyer and Dr Khan the circumstances, not known by them at the time of their reports, that relevant and material information about the plaintiffs physical restrictions had surfaced and asked them whether they cared to revisit their conclusions from their early reports. As it was, the fact that the plaintiff, through his legal representatives, relied upon evidence from two health professionals without putting material information to them, means that, through no fault of the experts, the weight of their opinions is substantially diminished.

112. The plaintiff’s omissions to disclose material information were not isolated, but serial. It carries two consequences adverse to the plaintiff: it undermines his credit (critical to my acceptance of his account as to his likely future incapacities); but also it undermines the weight to be accorded to the medical evidence tendered on his behalf; as I mentioned with respect to Dr Khan and Dr Myer above. I find that the plaintiff was selective in the provision of information he gave to these medical professionals in a way intended to elevate his current incapacities, whilst downplaying activities which, objectively, would run contrary to the suggested incapacity.

113. I would not, however, go as far as the defendant submits, in terms of the Instagram postings indicating that the plaintiff gave evidence dishonestly. I think that, in the still early phase of his career as a self-employed physiotherapist, the plaintiff has somewhat self-consciously tried to put about (particularly on social media), partly for marketing purposes, an image of rugged vigour and strength to actual and potential clients, as well as communal involvement (in health clinics or providing physio assistance to the local rugby league team). Part of that has involved demonstrable displays of physical strength in rigorous physical activity. But the image-making involved the plaintiff putting up with symptoms of his injuries; and, very probably, some pain after these voluntary physical activities. I consider that the surest guide to the genuineness of the plaintiff’s injuries and symptoms is in the information he reported to his general practitioner, Dr Douaihy, from or about the date of the accident until at least (on the evidence before me) early 2018, and his regular physiotherapy treatment.

114. Further, and in fairness to him, I accept that the way in which the plaintiff has advanced a generally modest claim, has accepted (appropriately enough) that his financial position has improved, rather than deteriorated, since the accident and other concessions which he did make to the defendants own doctors, means that I reject the wholesale attack on his credit made upon him by the defendants.

115. This means, in short, that I must scrutinise very carefully the plaintiff’s evidence and measure it against other objective indicators.

Injuries & disabilities caused by the accident

116. I find, that on the basis, at least, of the defendants’ medical evidence and the medical certificate appended to the personal injury claim form, that as a result of the accident on 23 August 2014, the plaintiff suffered injuries to:

1. the medial aspect of the left elbow; which was associated with subluxation of the ulnar nerve;

2. contusion to the patellofemoral articular cartilage of the right knee;

3. a soft tissue neck injury; and

4. a soft tissue injury to the upper limb.

117. I also accept that the plaintiff suffered lower back pain, headaches, pins and needles in his forearm and hands as well as lacerations to the knee and head (which healed not long after) as a result of the accident.

118. The symptoms described in the aforementioned paragraph have endured and, I think, are likely to endure. They were referred to in Dr Khan’s report (December 2017). They were referred to in Dr Douaihy’s notes, the last of which (relevantly) was dated 20 February 2018, as well as on-going reports of the physiotherapy treatment he has been undertaken (including those from Hamish Wright). I do not suppose that, as a physiotherapist himself, the plaintiff would undertake such treatment or assessment from general practitioners or physiotherapy if he did not think it was necessary or desirable. For much of this period, the plaintiff was paying for these expenses out of his own pocket; and not by the defendants’ insurer. It follows that, although I have found her report helpful, I prefer this evidence over the evidence of Dr Harvey-Sutton provided over three and a half years ago. (Even then, Dr Harvey-Sutton did not make any prediction as to when the plaintiff’s condition would settle). I note that Dr Machart’s opinion, one month earlier, was that the plaintiff’s condition had not stabilised; nor that he had sufficiently recovered. (I do not need to decide the validity of the plaintiff’s submission, in effect, that the defendants shopped around for a different view, from Dr Harvey-Sutton, after Dr Machart’s report).

119. I find that throughout this period, the plaintiff was effectively battling on, trying to continue to work as a physiotherapist: an occupation which did not allow the sort of rehabilitation that would ordinarily be followed by the victim of a car accident with this plaintiff’s injuries.

120. Such treatment or rehabilitation as the plaintiff was undergoing was conservative and largely self-administered: he undertook physiotherapy at his workplace and took anti-inflammatory tablets, such as Nurofen. He eschewed prescribed medication. This was a form of treatment, which the plaintiff, with his knowledge and training as a physiotherapist, thought he could manage. I agree with the submission by the Counsel for the plaintiff that, to this extent, it was to the plaintiff’s credit that he continued to work, even without necessarily being at full physical capacity from a period very soon after the accident.

121. I also think it is of some significance that in terms of his physiotherapy treatment since the accident, the plaintiff has chosen to receive it from colleagues at the physiotherapy practices which he initially worked for and subsequently was his own business. This disregarded Dr Harvey-Sutton’s view that it would be in the plaintiff’s interest to check that the manner in which he performs his physiotherapy treatment is in an ergonomically advantaged manner. At the time of the trial, the plaintiff had received four external physiotherapy sessions (at least being those that the defendants had paid for). Conceivably, there is some force in the submission of the plaintiff’s counsel that such (free) physio treatment he has been receiving from his current (very junior) colleagues may not have been entirely beneficial to him; and he ought to be independently assessed to ensure that he is obtaining the maximum benefit from the exercise. By favouring the relatively economical and convenient course of having colleagues administer physiotherapy, rather than having it administered externally, the plaintiff may not have done himself any favours in terms of his recovery.

117. In reaching these findings about his present symptoms, I am conscious of the plaintiff’s exertions in the boxing, cross-fit activities and (to a lesser extent) soccer throughout the years 2016 to 2018. But save for the left wrist injury, which I think is more likely than not separable from the motor accident, I do not regard the plaintiff’s continuing symptoms as being entirely attributable to these post-accident activities. The activities may, or may not, have helped them. I do not accept that every time that the plaintiff saw Dr Douaihy, or had physiotherapy from about May 2016, or reported his symptoms to Dr Khan in December 2017, it was because of activities completely extraneous to the plaintiff’s injuries caused by the accident. I remain satisfied that, even after the physical activities, it is more likely than not that the symptoms of physical injury, although not overtly severe, are attributable to the accident.

118. I also note that to the extent that the defendants are apparently critical of the plaintiff’s undertaking of these activities, they probably benefitted from them, indirectly, in at least one sense: the palpable sense of fulfilment that the plaintiff apparently achieved from participating in them would, I think, have assisted the plaintiff’s mental state, helping to stave off anxiety and depression (and possibly reduce the defendants’ exposure to damages for mental harm accordingly).

Past economic loss

124. I accept that the plaintiff was off work for an initial continuous period of three days after the accident. This was what he represented in the personal injury claim form (completed on 4 February 2015, approximately 4 months after the accident). I do not consider that the response to Question 40 in the personal injury claim form as providing a definitive answer to all the days that the plaintiff had off from work until the trial. For that matter, I think the question could reasonably be construed by the injured person as stating the periods of time when the person was continuously absent from work; hence the use of the expression ‘periods of time’. Although an indication was provided (in smaller font) that the person could list specific days off, that indication might have been missed. Of course, it was a long period of time between completion of this claim form and the trial and the information represented in the claim form was only current to the date the form was completed.

125. The reference to 2-3 days off work was also what the plaintiff told Dr Guirgis, and, apparently, Dr Harvey-Sutton. It is also what he told Dr Khan in December 2017. But the context in which that information was imparted to these medical practitioners is not known. I do not take the statement, taken in isolation, as excluding the prospect that other time off was taken from work, more intermittently or sporadically, for the assessment or treatment of his injuries.

126. Generally, I accept that through the course of the remainder of 2014, 2015 and at least until May 2016, it was necessary for the plaintiff to at least take some time off work for him to have his various consultations with Dr Douaihy, the defendants’ doctors (Machart and Harvey-Sutton) and other health professionals (Dr Giurgis and Dr Saunders) in connection with the treatment or assessment of his injuries from the motor accident.

127. Dr Harvey-Sutton, whose evidence the defendants placed much reliance upon, opined that she would have expected the plaintiff to lose income in the first 2 to 3 months following the accident. Further, I agree with the plaintiff’s submission that there was a prolonged period of time during which the defendant’s insurer had denied liability and, notwithstanding this, the plaintiffs still incurred the time (and the personal expense) to undertake treatment. I do not infer that the plaintiff did this is a matter of voluntary choice.

128. The difficulty for the plaintiff is quantifying this extra period of time off work from his employer. The plaintiff said in his evidence that he had taken up to 20 or 25 days of work. He also relied upon a letter from his former employer to the defendants’ then solicitor in February 2016, Mr Charlie Haddad, which estimates that the plaintiff had had about 28 days off from work. I admitted that particular evidence (over the defendants’ objection) on the basis that it could be presumed that Mr Haddad had some personal knowledge of the period of absence. However it must be said that the evidence of the period of absence from both the plaintiff and Mr Haddad amounts to no more than an undocumented rough estimate. Conceivably, Mr Haddad was influenced in his estimate by what the plaintiff had told him in the circumstances, I do not ascribe much weight to either estimate at all.

Jones v Dunkel inference?

129. Mr Haddad might have given evidence about the time off that the plaintiff had from work after the accident. I do not regard the absence of Mr Charlie Haddad as being satisfactorily explained. I agree with the defendant that he did not attend because it was not convenient to him; not because he was ‘unavailable’ (in the sense referred to in the Evidence Act).

130. The defendant’s Counsel said that he would have liked to cross-examine Mr Haddad, given the indication in the letter that the plaintiff had reported to him that he had ceased sporting activities and felt depressed. He indicated that Mr Haddad had relevant evidence to give not only in relation to the claim for economic loss, but also (future) domestic assistance.

131. I am not inclined to draw a Jones v Dunkel inference by reason of the plaintiff’s failure to call Mr Haddad. In view of the letter that Mr Haddad wrote – to the defendants’ lawyers – about the total time off work that the plaintiff had had following the accident (up to the date of the letter, in February 2016), I am less than convinced that (a) there was an issue which the plaintiff was “required to explain or contradict” (Jones v Dunkel (1959) 101 CLR 298 at 321), (b) that Mr Haddad might have been a person to provide any explanation contrary to what he wrote in his letter; or (c) Mr Haddad, a former employer, could be regarded as in the plaintiff’s camp such that it would naturally be expected that the plaintiff would call him. Put another way, I do not see why Mr Haddad was not capable of being called by the defendants. Moreover, I do not see why the defendant was any less capable of issuing a subpoena for wage or payroll records from Mr Haddad, or his practice, than the plaintiff was capable of putting them into evidence.

132. Finally, I note that the ‘rule’ in Jones v Dunkel may, but does not compel, an adverse inference to be drawn. This principle has particular force where, as here, the claim (especially for past economic loss) is modest, and the parties are enjoined to conduct the proceeding efficiently and cheaply, and in a proportionate fashion to the claim (or more precisely, the quantum of the claim) that is made (ss 56-60 of the Civil Procedure Act). I do not overlook the possibility that cross-examination of Mr Haddad might have elicited inconsistencies between what the plaintiff had informed Mr Haddad and the real position, in terms of such things as his physical restrictions and his time spent off work. To that extent further doubt could have been cast upon the plaintiff’s credit, but it is difficult to quantify or qualify how much material new information could emerge that was not already apparent in evidence, to impugn the plaintiff’s credit. I doubt that, at least from the point of view of testimonial evidence, that Mr Haddad could have added, over 3 years after the event, to the content of his letter from early 2016 and, as I have said, all parties had the opportunity to compel production of business records, including payroll and wage records concerning the plaintiff.

133. I do not accept that the plaintiff suffered a loss of $100 per week from self-employment after the accident, as he claimed in the claim form. These were not earnings claimed in his tax returns for the financial year ended 30 June 2014 or 30 June 2015. Those returns were not in evidence.

134. Doing the best I can, in the circumstances I would allow a period of 10 days off, as being attributable to the injuries and symptoms from his motor accident. On the basis of the plaintiffs’ calculations of his earnings for the financial year ended 30 June 2014 (being about $158.31 per day), this yields a figure of $1,538.10 for this head of damage.

Past out of pocket expenses

135. The plaintiff submits that the figure for past out-of-pocket expenses should be $7,318.30. The defendant disputes this amount, in various ways. First, it says that it has paid the sum of $2,963.20. The defendant says that this amount should be credited to it per s 83 of the Motor Accident Compensation Act 1999.

136. Secondly, the defendant says that in relation to each expense claimed by the defendant, the plaintiff should be limited only to the AMA rates recognised in s 56(3) of the Act and regulations 4 to 6 of the Motor Accidents Compensation Regulation.

137. As I understood him, counsel for the plaintiff said that from the amount of $6,675.30 (the amount that would be allowed under the AMA rates), it would be inappropriate to make any further express deduction for the sums paid to date, by the defendant.

138. As to individual amounts, for reasons which I will elaborate further below, I accept the defendants’ submission that no allowance should be given to medical expenses associated with assessment or treatment from Dr Myers, the Medical Imaging of Bankstown, Concord Nuclear Imaging or Dr Anthony. These expenses were not incurred in relation to the subject accident, but related to investigation into the plaintiff’s left wrist.

139. I do allow, in full, the expenses associated from treatment or assessment by Dr Guirgis, Dr Douaihy, Take Control Rehab and Marrickville Physiotherapy. They collectively total the sum of $4,116.25. I also permit the first and second item of expenses to Dr Saunders (24 March 2016 and 17 May 2016), but not the third expense, referable to the left wrist.

140. I accept that pursuant to s 83(5) of the Act, the defendants are entitled to be credited for payments made in relation to each expense that I have allowed (Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498).

141. In relation to the defendants’ second objection, I also accept that, by operation of s 56(3) of the Act and regulations 4-6 (incl) of the Motor Accidents Compensation Regulation, the insurer’s maximum liability for a treatment expense (for a non-hospital medical provider) is governed by the AMA List.

142. Taking these matters into account, the claim for past of expenses appears as below.

Expense	Claimed amount	AMA – adjusted expense (A)	Amount paid by the defendant (B)
Dr Guirgis	260.00	170.00	Nil
Marrickville Road Medical Practice (Dr Douaihy)	838.05	838.05	345.00
Take Control Active Rehab	2,388.20	2,388.20	1,898.20
Dr Saunders	684.30	450.00 [2]	Nil
Marrickville Physiotherapy Centre	720.00	720.00	720.00
Sub-total	$4,566.25	$2,963.20

143. I find that the plaintiff is entitled to the sum of $1,603.05 (A-B) for this head of damage. In relation to the Saunders expenses, should either party wish to vary the amount, to accommodate the circumstance that I have allowed two, but not all, of those expenses, they will have liberty to apply to do so.

Future events

144. The next three heads of damage plainly relate to future events. Two concepts need to be distinguished. First, the plaintiff needs to establish the causal requirement that these future events were caused by the motor accident. This is to be established on the balance of probabilities. Secondly, on the basis that such causal requirement is fulfilled, it is then necessary, when considering what damages to award, to assess the prospects by reference to possibilities.

Causal connection

145. On 22 March 2016, Dr Karim Gergis certified the plaintiff as being fit to compete in combat sports. In order for such certification to be provided, a medical practitioner had to be in a position to assess, amongst other things, the risk of injury from participation in such events. This included, amongst other things, the risk of injury arising from previous injuries with incomplete recovery or function or complicating sequelae.

146. Dr Gergis could only have provided this certification on the basis of a history provided by the plaintiff of his health and recent injuries and, to the extent he thought it relevant or desirable, such other information from health professionals as the plaintiff wished to impart.

147. The evidence amply demonstrates that from some indeterminate point in 2016 until 2018, the plaintiff, whatever be his reasoning or motivations, embarked upon a successive sequence of highly physical leisure activities. This started with preparation for a boxing bout, continued with participation in what was highly intense, if not extreme, ‘Ninja Warrior-style’ ‘cross-fit’ activities involving the use of bars and ropes, and then the more mainstream sport of soccer. I am satisfied that the plaintiff would not have chosen to have participated in these activities and could not, in fact, effectively participate in them, if he thought or if it was not the real position that the injuries and symptoms associated with his motor accident would prevent him from being able to do so. It is not simply a matter of the plaintiff recklessly or foolishly over-extending himself on an isolated occasion, only to repent his involvement a few days later when he saw a health practitioner. The evidence establishes a considerable degree of preparation and planning for the plaintiff’s involvement in the physical activities. That in my opinion is inconsistent with his complaints as to the enduring relevance of severe symptoms continuing to be associated with the motor vehicle accident. That does not mean, however, that no such symptoms from the motor accident remained. Even when the plaintiff was undertaking some of the cross-fit activities, it was apparent that, for example, he was favouring his left arm.

148. Further, I am not persuaded that the plaintiff’s difficulties with his left wrist, identified by Dr Myers in August 2016, are attributable to the motor accident. It is true that at least from August 2015 the plaintiff did complain to Dr Douaihy about pain in the left wrist and forearm. This was consistent with the complaints made contemporaneously with the accident. But there was a significant break, in the chronology of the medical treatment from this generalised complaint of left wrist pain to the more specific complaints about the left wrist which emerged in about the middle of 2016, at the time when the plaintiff saw Dr Saunders (following a referral from Dr Douaihy). Given this period of time where there was no apparent concern about left wrist, I regard it is unlikely that the problem that emerged with the left wrist in July 2016 was connected to the plaintiff’s injuries from the motor vehicle accident.

149. In this respect, contrary to the plaintiff’s submission, I do not accept that when he was examining the plaintiff and reviewing his history late in 2017, Dr Khan saw, or was referred to an ultrasound of the left wrist performed on or about the date of the accident. I agree with counsel for the defendants’ submission that this is probably a typographical error. The notion of an ultrasound being performed, specifically, on the left wrist on or about the date of the accident is not indicated in any other place in the medical evidence. There is, on the other hand, evidence of an ultrasound being performed on the left elbow on 25 August 2014.

150. I also disagree with the plaintiff’s submission that the pins and needles he felt in his left forearm and hand on the date of the accident were but the prelude to a radiological finding of a tear in the left wrist nearly two years later. In this respect, the plaintiff submitted that early indications after the accident, of pins and needles associated with the left forearm, or left arm generally, or the left-hand in particular, later morphed into something more serious in the middle 2016. I do not accept that submission. Dr Myers was referring, with some specificity, to a tear in the left wrist. There was no indication of this at any time broadly contemporaneous with the accident.

151. I think it is more likely that they were associated with the plaintiff’s more recent recreational physical activity or, alternatively, had arisen from his physiotherapy work.

152. I also consider that had the plaintiff sustained an enduring left wrist injury from the motor accident, he would not have attempted to engage in, or was objectively capable of engaging in either the boxing activity, or any other ‘combat sports’ he undertook in 2016 or the cross-fit activities he engaged in 2017. Both forms of activity were not only generally intense, but required especial strength in the wrists and hands generally.

Future loss of earning capacity

153. It ultimately became common ground that in the absence of the plaintiff establishing his left wrist injury, and the necessity for surgery upon it, there was no foreseeable reason why the plaintiff would need to take time off work in the future. I say ‘generally’, as Counsel for the plaintiff faintly suggested that the plaintiff may need time off work to deal with his issues concerning the ulnar nerve and hip. The medical evidence does not support this.

154. There is another causal issue. That is whether the plaintiff would be likely to receive such treatment. Having regard to the length of time since Dr Myers’ opinion had been obtained, it surprises me that if the problem with the left wrist was of such importance to the daily activities of a physiotherapist such as the plaintiff, that he would not have availed himself of such treatment. I do not, in this respect, overlook the cost of such treatment. I am also mindful and accept that the plaintiff would have a natural reluctance to take time off work to permit postsurgical rehabilitation. Nevertheless, Dr Myers’ opinion, qualified as it was by the suggestion that further investigations were necessary and a suggested requirement for the plaintiff to return to him, is now quite dated. In the interim period of time, and to his credit, the plaintiff has built up and expanded his physiotherapy business and proposes to spend less time engaging in ‘hands on work’. I am not persuaded that surgical intervention is necessary now, even if it was necessary before.

155. In view of my findings on causation, and the way the parties put their submissions (in the light of their agreement as to the facts) it is unnecessary to consider further the application of section 126 of the Motor Accidents Compensation Act. Generally, I find, the plaintiff’s position as to what was likely to happen with his earning capacity in the future, unaffected by the motor vehicle accident, is no different to what it is now likely to be after the accident has occurred.

Future domestic assistance

156. In the light of the plaintiff’s activities exposed on Instagram, as well as the other vigorous physical activities that the plaintiff has participated in from 2016 until 2018, it is clear that since the accident, there has been no need in the plaintiff for any domestic assistance.

157. Counsel for the plaintiff linked the need for the plaintiff to obtain such assistance to Dr Khan’s evidence about a prospective requirement for surgical intervention on the left wrist. As I have found that such intervention was (a) not caused by the accident (b) is unnecessary; and/or (c) might not be taken up by the plaintiff, the premises for this claim fails.

158. I would have had my doubts as to this claim, at any rate, having regard to the plain conflict in the plaintiff’s evidence as to his difficulties performing routine domestic chores (making the bed, vacuuming or washing), whilst, at the same time, participating in the vigorous physical activities I have referred to.

156. It is unnecessary for me to consider the defendants’ submission that a Jones v Dunkel inference arises from the plaintiff’s failure to call either of his parents. In view of what I have said at paragraph 132 above, however, there is much to be said for the view that given the extremely modest nature of this particular claim, considerations of economy would not lightly lead me to draw this inference.

Future out of pocket expenses

160. Counsel for the plaintiff’s submissions on this head of damage were primarily based on the opinion evidence of Dr Khan. As I have said, the problem for the plaintiff is that Dr Khan’s evidence has been, to some extent, compromised by the less than complete history given to him by the plaintiff. For example, Dr Khan referred in his report of 13 December 2017 to the plaintiff’s inability to do ordinary household chores and requiring the assistance of family members. Such evidence cannot be reconciled, in my opinion with the vigorous physical activities that the plaintiff had participated in in 2016 and 2017. I agree with the submission for Counsel for the defendant that it was only a matter of months before the plaintiff had seen Dr Khan that he had involved in the ‘Ninja Warrior’-style cross-fit activities, inconsistent with both his protestations of a need for domestic assistance (or loss of earning capacity).

161. Generally, I consider that the plaintiffs is, and is likely to remain, in a position broadly similar to where he was as at the middle of 2016, before the treatment administered by Dr Saunders: suffering intermittent flaring up symptoms associated with his left elbow, neck and back and hip; and those symptoms are, more likely than not, connected to the motor vehicle accident in August 2014.

162. As to what future treatment he may be likely to require, there is no demonstrable need for analgesics. The plaintiff has said, and I accept that he uses, Nurofen regularly and probably will continue to do so. I accept the plaintiff’s calculation for this, amounting to $1,429.

163. The circumstance that the plaintiff has been receiving physiotherapy treatment free of charge cuts both ways. I have noted Dr Harvey-Sutton’s evidence and the submission from the plaintiff’s counsel that, although, ostensibly, the receipt of free physiotherapy treatment assists the plaintiff in a financial sense, it cannot be said, with confidence, that it is being administered in the most ergonomically advantaged manner. I also think that some future treatment should contain allowance for assessment by an independent physiotherapist, which the plaintiff will, I expect, agree to undertake (if only because he runs out of patience with the existing physio treatment he is receiving) to ensure that the plaintiff is doing his self-rehabilitation effectively. I propose to allow $250 to enable a thorough assessment to be provided.

164. That said, I find that it is more probable than not that the accident will cause a small need for periodical trips to his general practitioner. I would not be prepared to allow a sum for 4 visits a year, for a period 10 years at the estimated cost of $100 per visit. The plaintiff has calculated this expense as being $3,176.15. I do not accept that such level of frequency is required, for such duration when there was little evidence of attendance upon Dr Dovaihy for physical injuries after the early part of 2018. I would allow half of this, meaning a sum of $1,588.

165. I also consider that some allowance should be made to reflect Dr Khan’s recommendation that the plaintiff may need further assessment and treatment for his left elbow. Such intermittent symptoms as the plaintiff experiences of left elbow pain are, I consider, more probably than not caused by the accident.

166. Allowing for the statutory 5% deduction [3] , I find that this head of damage should be assessed at $3,500.

ORDERS

167. For these reasons, I order that:

1. Judgment for the plaintiff for $6,640.

2. The defendants are to pay the plaintiff’s costs.

3. Liberty is granted to the parties to apply, to my Associate on 7 days’ notice, should any variation be sought in relation to the calculation of past out of pocket expenses, and/or the order for costs. Any such application should be by way of short (ie. not exceeding 3 pages) submissions supported by any relevant documents.

Postscript

168. Although it is not necessary to resolve the issues presented for my determination in this proceeding, I cannot but forebear from observing that, as part of his attack on the plaintiff’s credit, counsel for the defendant submitted that I should find that the plaintiff had made false and misleading statements to various doctors, leading them to give evidence in support of his claim of domestic assistance, of such kind as to “trigger” (T 141.14) s 117 of the Motor Accidents Compensation Act. In my opinion, that submission should not have been made. The basis for this submission was, primarily, what was depicted in the film footage which appeared on Instagram. This was in the defendants’ possession before the plaintiff gave evidence. Plainly, for forensic purposes, the defendants were minded to deploy this footage during the cross-examination of the plaintiff, partly to attack his credit, and such tactic is legitimate.

169. But to suggest that statements made by the plaintiff “made false or misleading statements within (s 117 of) the Act” (T 141.12) takes the matter to another level. To accede to the submission would be doing so in circumstances where: (a) such conduct amounts to fraud, and an allegation of fraud (in relation to “any claim” brought by the opposing party) should be the subject of specific pleading (r 14.14(3), read with r 14.14(2) of the UCPR); [4] (b) it amounts to a statutory offence; such that if the proposition was to be put to him (as it ought to have been), the plaintiff may have invoked the privilege against self-incrimination (and been warned of the operation of s 128 of the Evidence Act 1995 (NSW)); (c) a remedy for such conduct may be full or partial dispensation from liability for the insurer (s 118), which, in this case has never been claimed on behalf of the defendants’ insurer.

170. As I have indicated, the circumstances suggest that the defendants’ legal representatives had the Instagram footage in their possession, which appeared to negate the plaintiff’s claim for domestic assistance (supported as that claim was by evidence from the plaintiff’s doctors based upon the plaintiff’s histories) before the trial. That means that the defendants were in a position to give fair notice to the plaintiff if they considered that he may have been in breach of s 117 before the trial and before he gave evidence. Before then, the defendants had both the Instagram footage and the reports of the plaintiff’s doctors. In other words, it was not simply a matter of any posited breach arising spontaneously, or unexpectedly, during the plaintiff’s cross-examination.

171. In the circumstances, I am not prepared to consider the merits of the defendants’ submission that the plaintiff breached s 117, before or during the time he gave evidence.

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Decision last updated: 15 April 2019