Nathan Ghassibe v Zeinab Arja

[2019] NSWDC 818

District Court

New South Wales

Medium Neutral Citation:

Nathan GHASSIBE v Zeinab ARJA [2019] NSWDC 818

Hearing dates:

17 July 2019, 11 September 2019, 19 November 2019

Date of orders:

19 December 2019

Decision date:

19 December 2019

Jurisdiction:

Civil

Before:

Strathdee, DCJ

Decision:

(1) There will be verdict and judgment for the plaintiff in the sum of $572,792.39.
(2) The defendant is to pay the plaintiff’s costs as agreed or assessed.
(3) The parties have liberty to approach my associate within 7 days should a different costs order be sought.

Catchwords:

NEGLIGENCE – Civil Liability Act 2002 (NSW) s 5D – Motor Accidents Compensation Act 1999 (NSW) s 126

 

TRAFFIC LAW AND TRANSPORT – motor accident legislation – plaintiff injured as a result of motor vehicle accident – whether plaintiff’s or defendant’s version of events is accepted

 

DAMAGES – past economic loss – future loss of earning capacity – out of pocket expenses

  EVIDENCE – credibility – plaintiff and defendant

Legislation Cited:

Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420

Category:

Principal judgment

Parties:

Nathan Ghassibe (Plaintiff)

  Zeinab Arja (Defendant)

Representation:

Counsel:

 

Mr G Hickey (Applicant)

 

Mr B Wilson (Respondent)

 

Solicitors:

 

AJB Stevens (Applicant)

  Sparke Helmore (Respondent)

File Number(s):

2018/00084127

Publication restriction:

None

Judgment

1. By Statement of Claim filed 15 March 2018 the plaintiff seeks damages for injuries alleged to have been sustained in a motor vehicle accident on 23 February 2016.

2. The defendant denies liability to the plaintiff and pleads, in the alternative, contributory negligence.

BACKGROUND

3. The plaintiff was born on 21 January 1995 and attended school until about September 2009 when he was assaulted at a railway station after which he was not able to return to school. He has subsequently partially recovered from the effects of that assault as he does continue to have some anxiety.

4. In mid-2010 the plaintiff commenced employment at McDonald’s working five hours a day, three days per week. This employment lasted about 4 months.

5. The plaintiff then commenced employment with KFC on a part-time basis for about two to three months.

6. In 2011 the plaintiff commenced employment with TeleChoice working full time, earning $13.00 per hour net, and he remained in that employment for approximately two years until the business closed down.

7. The plaintiff continued with intermittent employment until about July 2015 when he enrolled in a Diploma of Business at the Australian Business Academy at Parramatta. He continued in that course until late 2016 at which time the students were informed that the curriculum undertaken did not satisfy certain criteria and an offer was made to the plaintiff to re-do the Diploma in accordance with the appropriate criteria. The plaintiff did not take up this offer.

8. In about January 2016 the plaintiff’s father approached an acquaintance, Anthony Tressera, with a view to trying to obtain an apprenticeship opportunity for the plaintiff in carpentry.

LIABILITY EVIDENCE

9. The subject motor vehicle accident occurred on 23 February 2016.

10. The plaintiff’s version of events is as follows. On the day of the accident, he went to Sydney Kebabs to have a meal. He did not consume any alcoholic beverages. He left the shop in his car at about 10.15pm to drive back to his parents’ home.

11. The plaintiff proceeded along Sir Joseph Banks Road, Bankstown towards the traffic lights at the intersection of Sir Joseph Banks Road and Richard Road, when the lane in which he was travelling became two lanes. The plaintiff then merged onto his far left lane as he intended to turn left at the intersection. The intersection was controlled by traffic lights.

12. As he approached the intersection of Richard Road, the lights were red, so he slowed down his vehicle and he was the second car stopped at the lights. He engaged his indicator to turn left as he was in the left turning lane. The lane to his right was a right turning lane. There were only two lanes on that side of Sir Joseph Banks Road.

13. The plaintiff recalls stopping at the lights for about 1 minute, watching the road ahead and noticing that there were road works on his right hand side blocking the left hand lane in Richard Road, but the lane that he intended to enter was not blocked.

14. When the lights turned green for the plaintiff to turn left, the car in front of him moved into the intersection and turned left. The plaintiff moved slowly out into the intersection and looked at the traffic around the intersection. He observed that it was clear. As he was looking to the right and left, the car behind him beeped, which the plaintiff interpreted to be in impatience. As this happened he started to turn the car to the left.

15. The plaintiff recalls that as has he was turning left, he heard a revving noise behind him from another car, and he turned to look over his left shoulder and observed the defendant’s vehicle suddenly collide with the front bumper of his vehicle and the right guard and right headlight. He recalls that he was mostly on Richard Road at an angle, having come from Sir Joseph Banks Road.

16. The plaintiff believes that he had turned into and remained in the far left lane, and that the defendant’s vehicle moved into his lane before colliding with him.

17. The impact of the collision spun the plaintiff’s car around, and he then drove his car to the side of the road. The defendant also moved her car to the side of the road. The plaintiff recalls two people coming to see if he was alright and telling him that they thought the defendant was at fault, as she had run a red light.

18. The defendant’s version was that she was stationary in the intersection when the lights went from green to orange and then to red. As she was in the intersection when the lights changed, she had to move forward to clear the intersection and as such did not run the red light.

19. The plaintiff gave evidence before me, and was in my view an impressive witness. He is a young man, who had been in two motor vehicle accidents but gave his version of the events in a forthright manner. His evidence was logical and he was not rattled by cross-examination. If he could not recall what happened when asked, he stated so. I accept him as a witness of truth.

20. The defendant did not give evidence. This was not in any way the fault of the lawyers representing her. I accept that she was issued with a subpoena to attend court and give evidence. She did not attend but produced a medical certificate to state that she was pregnant and also had a small child and could not therefore attend.

21. Attempts were made to have her give evidence via the telephone. This was done in open court and was unsuccessful as the line either dropped out and/or she deliberately would not answer the phone.

22. Counsel for the defendant then tendered a transcript of the phone call made by the defendant when making a claim for the damage to her vehicle (Exhibit 10). Counsel then, after the conclusion of the trial, made an application that I listen to the recording of such telephone call. This was acceded to and I listened to the tape in open court. Whilst having regard to the evidence tendered on behalf of the defendant, there was no opportunity for the evidence on behalf of the defendant to be tested, as she did not attend and therefore could not be cross-examined.

23. The plaintiff’s father gave evidence and was also an impressive witness. He gave evidence of what he observed when he arrived at the scene after the accident, and the plaintiff’s condition after the accident. He also gave evidence about the attempts the plaintiff has made to return to employment.

24. Interestingly, the plaintiff’s father gave evidence that he attended the McDonald’s restaurant adjacent to where the accident occurred and managed to obtain assistance from the staff at McDonald’s with regard to the CCTV footage at the time of the accident.

25. Ms Adele Anderson, the manager of McDonald’s at the intersection as at the date of the accident, gave evidence before me, and was a most impressive witness. Her evidence was that she was asked to look at the CCTV footage of the scene of the accident and she did so. A summary of her evidence was that she saw the defendant’s vehicle running a red light. She was strenuously cross-examined, and her evidence was forthright and believable. I have no hesitation in accepting her as a witness of truth. Documentary support for her evidence is contained in Exhibits A, D and E.

26. Having regard to all the evidence before me, including witnesses that gave evidence and an extensive number of documents, I accept that the defendant ran a red light, which caused the accident. Various submissions were made as to whether the plaintiff’s damages ought be reduced for an element of contributory negligence. I do not accept that they should as I find that the defendant ran a red light and collided with the plaintiff who had entered the intersection on a green light.

27. Unfortunately, the plaintiff was involved in a further motor vehicle accident on 2 October 2016 at Punchbowl Road, Belfield at the intersection of Water Street and Burwood Road.

28. Liability for that accident was admitted, and the hearing proceeded as an assessment of damages only, which ran before me concurrently with the present proceedings.

29. These proceedings were ultimately resolved, and I will deal with that situation later in this judgment.

MEDICAL EVIDENCE

30. A few days after the first accident the plaintiff saw his regular GP, Dr Hor, on two occasions, and then Dr Gergis on a number of occasions over the next few months.

31. On 15 June 2016, Dr Gergis recorded:

‘MVA February 2016 and LBP since. At times pain radiates to RLL.’

32. The plaintiff continued to see various doctors until he was finally referred for an MRI which took place on 30 August 2016 which showed some significant pathology in his cervical and lumbar spine.

33. He was referred to Dr Noel Dan, neurosurgeon, upon whom he attended on 22 September 2016.

34. Unfortunately, the second accident occurred on 2 October 2016.

35. The plaintiff attended Dr Hor the following day and then attended the Canterbury Hospital Emergency Department on 6 October 2016 with the following referral:

‘Thank you for ongoing care of Nathan Ghassibe, a 21 year old male who presented to Canterbury ED on 6/10/16 with acute chronic back pain. He was involved in a motor vehicle accident on Sunday where he was hit from behind by another driver while stationary. He did not hit his head but experienced some whiplash. He was transported to TCH ED by ambulance but did not wait to see a doctor at the time. On 5/10/16 he woke up with 10/10 lower back pain radiating down right leg associated with pins and needles as well as left-sided lower back/buttock pain. He also reported posterior neck and right shoulder pain since the MVA on Sunday. He denies any bladder or bowel dysfunction or any saddle anaesthesia.

Background medical history:

-   MVA February 2016 resulting in lower back pain.

-   MRI cervical neck: mild multi-level degenerative changes, potentially significant left foraminal stenosis at C3/C4.

-   MRI lumbar spine: broad based posterior and left paracentral disc bulging with a focal foraminal protrusion. Displacement of descending left S1 nerve root and possible contact with right S1 nerve root in subarticular recess.

-   Due for corticosteroid injection Monday 10/10/16.’

36. He was then referred to Dr Catherine Hayter for a periradicular block that revealed the following:

‘Findings: There is mild narrowing of the right temporomandibular joint space. This is anatomic alignment of the right TMJ on open and closed mouth position.

The left temporomandibular joint space is preserved. There is anatomic alignment on the left TMJ on open and closed mouth position.

There was no mandibular fracture on OPG. 38 and 48 are partially erupted. No focal osseous lesion is seen.’

37. The plaintiff continued to attend various doctors and by December 2016 he was referred for x-rays and ultrasound of his right shoulder as he was complaining of symptoms therein. The x-ray revealed mild sub-deltoid bursitis which was confirmed by the ultrasound.

38. The ambulance records (Exhibit B page 63) corroborate a contemporaneous onset of neck and back pain after the first accident with indications of neurological radicular symptoms in the left leg.

39. The clinical notes of Dr Hor (Exhibit B page 172) show that the plaintiff was making ongoing complaints and receiving treatment for predominantly low back pain as do the notes of Dr Guirgis (Exhibit 8 pages 3 & 4).

40. Certificates issued by Dr Guirgis show the plaintiff was being certified totally incapacitated up to the time of the second accident (Exhibit 8 page 22) and the physiotherapy records and reports confirm problems being experienced by the plaintiff in the lumbar spine and the legs prior to the second accident (Exhibit 8 page 7; Exhibit B pages 197-199).

41. MRI scans of the cervical and lumbar spines on 30 August 2016 show clear pathology at both levels (Exhibit B pages 82-85).

42. The plaintiff was referred to Dr Dan whose report of 22 September 2016 (Exhibit B page 86) was less than 2 weeks before the second accident and at that consultation the doctor records the plaintiff having made the following complaints:

1. Tenderness over the cervical and lumbosacral spine.

2. Weakness in the right triceps.

3. Reduced pin-prick sensation over the left deltoid and the left lateral leg.

4. Positive right straight leg raising at 60 degrees.

5. Favouring the right leg when walking.

43. Dr Dan then opined that the symptoms of which the plaintiff complained as at 22 September 2016 were consistent with impaction of the L5 nerve root at that level and recommended a periradicular block at the right lumbosacral level (Exhibit B page 86) which importantly was arranged prior to the occurrence of the second accident.

44. The plaintiff’s evidence was entirely consistent with a cervical and lumbar disc injury as a result of the first accident.

45. The plaintiff told the court in evidence, and as is reflected in the medical evidence and the claim form completed after the second accident (Exhibit B page 342), that he was unable to work at the time the second accident occurred.

46. There is no dispute about the fact that the second accident, at the time that it occurred, caused a symptomatic aggravation of the areas injured in the first accident.

47. However, in September 2017 the plaintiff, for the first time since the first accident, returned to some form of employment. That is also consistent with the plaintiff returning to at least the condition that he was in before the second accident.

48. The medical evidence suggests that the second motor vehicle accident on 2 October 2016 caused a temporary exacerbation/aggravation of the problems suffered by the plaintiff following the first accident, the subject of these proceedings.

49. In any event, any ongoing effects of the second accident were relatively minor and whilst it most possibly increased his pain levels, it did not change the plaintiff’s function or capacity or, in other words, did not make the plaintiff more incapacitated than he already was. It did not increase his need for treatment other than in the immediate aftermath of the second accident and did not increase any restrictions the plaintiff had on the domestic front.

50. I accept that it is not plausible that the plaintiff was functionally worse, when he was able to return to work, than he was immediately before the second accident when he was being certified as unfit for any employment.

51. The description of problems contained in the report of Dr Dan dated 22 September 2016 and the physiotherapy records discussed earlier are incompatible with the plaintiff being able to work at the time (see the plaintiff’s evidence of improvement compared to his condition when he saw Dr Dan in September 2016 at Transcript page 107 line 15).

52. The plaintiff’s evidence confirms that in a functional sense, irrespective of whether any remnant effects of the second accident persist, there has been no change in his status (Transcript page 99 line 30 & page 102 line 50).

53. The plaintiff told the court, and I accept his evidence, that prior to the second accident he had neck pain which would come and go, and he confirmed that subsequent to the second accident he had returned to a position where the neck pain continues (Transcript page 96 lines 25-50).

54. Similarly, when the plaintiff initially thought that he had no right shoulder problems after the first accident he confirmed, having refreshed his memory from the relevant claim form, that in fact he did have shoulder problems after the first accident which would come and go (Transcript page 94 line 12) which is how he described his present day shoulder problems when giving his evidence-in-chief (Transcript page 25 line 25).

55. In so far as the plaintiff’s back is concerned, he told the court, and I accept his evidence, that prior to the second accident his back was such that one day per week he could find himself in bed with pain. He confirmed that this is the condition that he has remained in and it has continued subsequent to the second accident (Transcript page 99 lines 20-30).

56. So far as the plaintiff’s medication is concerned, it is clear from his evidence that he continues to take effectively the same amount of medication that he took before, although after the first accident and before the second accident he had been taking more serious pain killing medication, namely Lyrica that he had to give up because of the way it made him feel (Transcript page 100 line 35).

57. The medical evidence in relation to the causal effects of the first and second accidents must start with a consideration of the views expressed by the treating specialist, Dr Dan, who in his report dated 22 September 2016 (Exhibit B page 86) expresses the view that the plaintiff’s symptoms in the low back were consistent with impaction of the L5 nerve root at that level.

58. Dr Bentivoglio, retained on behalf of the plaintiff, in his report dated 17 July 2017 (Exhibit B page 5) is of the opinion that the first accident caused disc injury to the lumbar spine, soft tissue injury to the plaintiff’s neck and bursitis in the shoulder, and ‘the second one just exacerbated these injuries’.

59. Dr Burns, on behalf of the defendant, concluded the plaintiff’s neck problems had gone back to the level they had been prior to the second accident (Exhibit 7 page 7) which is consistent with the evidence elicited before me which I accept.

60. Significantly, Dr Burns expresses the view that the plaintiff’s work capacity had not altered following the second accident. This in my view, is entirely consistent with the evidence given by the plaintiff as to the nature of his problems before and after the second accident.

61. On the contemporaneous treating records, it seems to me that Dr Burns is correct in his conclusion that the plaintiff had not recovered to any great extent prior to the second accident.

62. The occupational physicians provided a joint report (Exhibit B pages 38-60). Notably, Dr Rosenthal who in his report dated 29 March 2019 (Exhibit 2 page 8) had considered an apportionment between the two accidents on a 50/50 basis to be appropriate in relation to the plaintiff’s lumbar condition, however he seems to have changed his view of the plaintiff’s condition in the joint report.

63. It is not apparent on what basis Dr Rosenthal expresses that belief, given the plaintiff’s condition appears to have deteriorated, if anything, in the period between the first and second accidents.

64. Dr Machart, on behalf of the defendant in the first accident, records a history consistent with the plaintiff’s evidence a history that after the second accident the lower back, the neck pain and the right shoulder pain continued to be much the same as prior to the motor vehicle accident in October 2016.

43. Dr Machart does not, on the face of it, appear to attach any causal significance to the effects of the second accident (Exhibit 3 page 2).

44. Dr Machart does not implicate the second accident as the cause of any ongoing problems. He appears to concede (Exhibit 3 page 5) that the first accident caused ‘a small disc protrusion’.

45. Tellingly, Dr Diwan, in July 2017 (Exhibit B page 176), observed that the MRI scan performed subsequent to the second accident showed no change from the MRI which was undertaken in the preceding year, that is prior to the second accident.

46. Ultimately, the question of causation is informed by a proper understanding of the facts, which Dr Burns clearly has. His conclusion strongly supports the proposition that causation rests with the first accident. That is consistent with the evidence of Dr Machart and Dr Bentivoglio.

47. I note the proceedings against the second defendant have resolved. The settlement was for an amount of $100,000.00 inclusive of out-of-pocket expenses plus costs as agreed or assessed. This in my view reflects the closed period for which any injuries that the plaintiff may have sustained as a consequence of the second accident by way of a fair resolution.

48. It seems clear to me that the second accident provided a temporary aggravation of the plaintiff’s condition and impairment of his earning capacity but it had resolved back to the point at which it was prior to the second accident. That is to say, the plaintiff’s ongoing symptoms and complaints are as a direct consequence of the first accident. The plaintiff, having resolved his claim against the insurer of the vehicle for the second accident, has accepted that that is the case.

49. I accept that the plaintiff’s work history prior to the first accident is fragmented. He is under educated because of certain events in his life which have been very traumatic and have made his entry into the workforce more troubled. However I accept that his attempts to enter the workforce were genuine. The plaintiff impressed me as an intelligent young man, who was inexperienced and under educated.

50. Like a lot of other young people without qualifications he started at McDonald’s, and then KFC, and then a telephone company. Finally he went into the cabinetry company, in which he remained for some 2 years until the company folded. He then tried to get some business qualifications, but that attempt was aborted by reasons that had nothing to do with the plaintiff.

51. It is clear that having worked in the carpentry industry for 2 years, that the plaintiff had some interest in it. His father, as any father would do, sought to obtain an apprenticeship for him with a fellow he knew who was a carpenter. I accept that this was something the plaintiff would have pursued, but for the accident, given his previous employment in a related industry. I accept that in all likelihood he would have entered into the apprenticeship and completed it, and continued in that role, as he struck me as a persevering type of person.

52. I accept that the plaintiff has been unable to work since the subject accident (the first accident) to date and his incapacity arose from the injuries he sustained in that accident. I accept the figures with regard to average weekly earnings of apprentice carpenters and tradesmen carpenters as provided by the plaintiff. They were not subject to any real challenge.

53. The plaintiff returned to work on 30 September 2017 at Hype DC at Bondi Junction as a sales assistant earning average of $500 net per week. The plaintiff resigned on 18 March 2018 due to his lower back injury. The plaintiff’s total earnings during this period were $7,226 net.

54. A claim for past economic loss is made for the difference between his likely pre-injury award weekly earnings and his current actual earnings.

55. The plaintiff then commenced working at Coty Lancaster Group from 8 April 2018 as a sales assistant earning an average of $516 net per week. The plaintiff resigned on 26 August 2018 due to his lower back injury. The plaintiff’s total earnings during this period were approximately $10,300 net.

56. But for the accident, the plaintiff would have commenced his first year carpentry apprenticeship at New Style Carpentry on or around 29 February 2016 until 28 February 2017. His earnings as a first year carpentry apprentice would have been $429 net per week x 52 weeks = $22,308 net.

57. The plaintiff would have continued working from 1 March 2017 to 28 February 2018 as a second year carpentry apprentice earning $494 net per week x 52 weeks = $25,688 net.

58. The plaintiff would have continued working from 28 February 2018 to 28 February 2019 as a third year carpentry apprentice earning $608 net per week x 52 weeks = $31,616 net.

59. The plaintiff would have continued working from 1 March 2019 to 15 July 2019 as a fourth year carpentry apprentice earning $702 net per week x 15 weeks = $10,530 net.

60. With regard to the plaintiff’s future economic loss, I accept that but for the accident, the plaintiff would have continued working from 16 July 2019 to 29 February 2020 as a fourth year carpentry apprentice earning $702 net x 37 weeks = $25,974 net.

61. From 1 March 2020 onwards, the plaintiff would have become a qualified carpenter.

62. Accordingly, I accept that the plaintiff would have earned $1,144 net per week as a qualified carpenter - $570 net per week as his residual earning capacity x 5% multiplier 931.6 - 15% vicissitudes of life = $494,120.64.

63. The evidence of Dr Burns and Dr Porteous in the conclave say in connection with what his likely abilities would be in terms of retail, and they only nominate part-time work.

64. I also accept that the plaintiff’s physical disabilities mean that he will be unable to do any real physical work and that ultimately he is going to have to retrain into some occupation that is sedentary. Such retraining might take some years. The plaintiff is assailed not just by the significant physical injuries that occurred as a result of this accident; he is a young man who still has some underlying problems that sometimes cause him difficulty in dealing directly with people, which he frankly and candidly admitted in evidence before me.

65. Accordingly, I make the following findings of fact:

1. After leaving school in Year 9 the plaintiff had a fragmented employment history involving predominantly casual type employment in the food service industry;

2. The plaintiff had no firm aspirations for future employment although in all probability it would have involved some continued retail customer service work or, with further educational training, he may have embarked upon more skilled employment;

3. Work as a carpenter was, at its highest, a possibility the plaintiff was going to explore;

4. Prior to the motor vehicle accident on 23 February 2016, the first accident, the plaintiff was fit with no physical restrictions on his earning capacity;

5. The plaintiff was involved in a motor vehicle accident on 23 February 2016. On that date the plaintiff had brought his motor vehicle to a halt at the intersection of Sir Joseph Banks Road and Rickard Road on a red light.

6. The plaintiff then obtained a green arrow and was entitled to drive his vehicle left from Sir Joseph Banks Road onto Rickard Road into either available lanes in Rickard Road.

7. The defendant, in driving her vehicle, proceeded illegally through a red traffic signal and came into collision with the plaintiff’s motor vehicle;

8. The collision occurred as a result of the defendant’s failure to comply with a traffic signal;

9. The plaintiff suffered personal injury by reason of the event of the motor vehicle accident on 23 February 2016;

10. The plaintiff’s driving of his vehicle did not contribute to the events of the motor vehicle accident;

11. The event of the motor vehicle accident on 23 February 2016 was solely caused by the driving of the defendant;

12. Subsequent to the first accident the plaintiff suffered physical restriction with significant cervical and lumbar problems involving radicular symptoms particularly in both legs;

13. The plaintiff also suffered problems with his right shoulder which he had injured previously in his youth when playing sport;

14. The plaintiff remained symptomatic after the first accident and was still complaining of significant neck and back problems in August and September 2016 which resulted in specialist referral to Dr Dan, Neurosurgeon;

15. On 30 August 2016 the plaintiff underwent MRI scans of the cervical and lumbar spines which demonstrated pathology in both regions;

16. The plaintiff suffered a further personal injury by reason of a motor vehicle accident that occurred on 2 October 2016;

17. The plaintiff sustained injuries to the same parts of his body principally as had been sustained in the motor vehicle accident of 23 February 2016;

18. At the time of the motor vehicle accident on 2 October 2016, the second accident, the plaintiff remained symptomatic from the effects of the first accident and was totally incapacitated for employment;

19. The second accident caused a temporary aggravation and exacerbation of the plaintiff’s symptoms in the cervical and lumbar spines and the right shoulder;

20. MRI scans conducted subsequent to the second accident demonstrated no change in the pathology in the cervical and lumbar spines since the MRI scans in August 2016;

21. In 2017 the plaintiff’s symptoms were such as to allow him to return to some work and since then he has undertaken work in various positions essentially in the area of retail service;

22. The plaintiff’s ongoing problems are predominantly related to the lumbar spine with associated problems in the legs;

23. As a result of the second accident there has been no change in the nature and effects of the plaintiff’s symptoms nor his functionality;

24. The plaintiff, but for the first motor vehicle accident, would have embarked upon an apprenticeship in carpentry and may have become a qualified carpenter or would have returned to working full time in a retail or customer service role;

25. Subsequent to and by reason of the first accident the plaintiff has suffered incapacity for physical work and work that causes postural aggravation of his symptoms in the neck and back;

26. The second accident caused only a temporary increase in symptoms but has not changed the nature and extent of any incapacity nor loss of earning capacity suffered by the plaintiff following the first accident;

27. The claim for domestic assistance was not vigorously pursued and I am not persuaded that he will require such care.

88. I make the following legal findings:

1. The failure by the defendant in the first accident to obey a traffic signal and thereby proceed through the intersection of Sir Joseph Banks Road and Rickard Road constituted a breach of her duty of care to the plaintiff;

2. The breach of duty was causally relevant to the event of the accident constituting the cause of the accident;

3. No actions on behalf of the plaintiff and the driving of his vehicle contributed in any way to the event of the accident;

4. By reference to s 126 of the Motor Accidents Compensation Act 1999 (NSW), but for the accident, the most likely future circumstances would have been that the plaintiff would have undertaken an apprenticeship in carpentry and would have become a qualified carpenter or had a career in retail customer service or real estate;

5. Section 5D of the Civil Liability Act 2002 (NSW) applies to motor accidents as per s 3B(2);

6. Section 5D(1)(a) of the Civil Liability Act 2002 (NSW) has been interpreted as applying a but-for test of causation; see Adeels Palace Pty Ltd v Moubarak [2009] HCA 48: (2009) 239 CLR 420 at [45];

7. In applying s 5D of the Civil Liability Act 2002 (NSW) to the facts of this case, any loss of earning capacity suffered by the plaintiff and any medical treatment after 2016 and any need for domestic assistance was caused entirely by the first accident and not contributed in any way by the second accident;

8. Section 126 of the Motor Accidents Compensation Act 1999 (NSW) covers the assessment of future economic loss;

9. Pursuant to s 126 of the Motor Accidents Compensation Act 1999 (NSW):

‘126 Future economic loss--claimant's prospects and adjustments

(cf s 70A MAA)

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court 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.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.’

89. I assess damages as follows:

Non-economic loss

N/A

Past out-of-pocket expenses

As per the Plaintiff’s schedule of treatment expenses, less $920.30 paid as s 83 expenses in other claim:

$3,739.50

Future out-of-pocket expenses

(a) 6 consultations per annum with his general practitioner @ $65 per consultation: $7.50/week x 999.8 =

$7,498.50

(b) Medication @ $10 per week: $10/week x 999.8 =

$9,998.00

(c) Review by specialist consultants (orthopaedic and otherwise) amounting to $500 per annum: $9.62/week x 999.8 =

$9,618.08

Total future out of pocket expenses

$27,114.58

Past economic loss

The Plaintiff refers to paragraphs 4 to 11 of the Amended Statement of Particulars and makes a claim for past economic loss in the following terms:

(i) 29/2/2016-28/2/2017

$22,308.00

(ii) 1/3/2017-28/3/2018

$25,688.00

(iii) 28/2/2017-28/2/2019

$31,616.00

(iv) 1/3/2019-15/7/2019

$10,530.00

(v) Minus actual earnings

-$17,526.00

Total past economic loss

$72,616.00

Future economic loss

(i) The Plaintiff claims that he would have continued from 16/7/2019 to 28/2/2020 as a fourth year carpentry apprentice earning $721.95 net per week minus a residual earning capacity of $570 net per week, therefore $151.95 x 37 weeks =

$5,622.15

(ii) The Plaintiff maintains that he would have worked as a qualified carpenter at approximately $1,144 net per week minus a residual capacity of $570 net per week, therefore 574 x 5% multiplier (950.4) -15% vicissitudes =

$463,700.16

Total future economic loss

$469,322.31

TOTAL

$572,792.39

ORDERS

90. I make the following orders:

1. There will be verdict and judgment for the plaintiff in the sum of $572,792.39.

2. The defendant is to pay the plaintiff’s costs as agreed or assessed.

3. The parties have liberty to approach my associate within 7 days should a different costs order be sought.

                                                                  ***

Decision last updated: 25 February 2020