Ozbayrak v Tekeli

[2017] NSWDC 261

District Court

New South Wales

Medium Neutral Citation:	Ozbayrak v Tekeli [2017] NSWDC 261
Hearing dates:	2 August 2017, 4 August 2017, 7 August 2017, 6 September 2017
Date of orders:	20 September 2017
Decision date:	20 September 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply to vary the costs order in (2) above. (4) The parties are to bring in Short Minutes of Order calculating the damages in accordance with these reasons within seven days; (5) Exhibits to be returned after 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – gratuitous care and commercial care – plaintiff with an extensive history of prior injuries and conditions – extent to which the accident resulted in new injuries or the aggravation of existing injuries – whether need for commercial care
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Curtis v Harden Shire Council [2014] NSWCA 314 Mason v Demasi [2009] NSWCA 227 Miller v Galderisi [2009] NSWCA 353 Strong v Woolworths Ltd (2012) 246 CLR 182 Wallace v Kam (2013) 250 CLR 375
Category:	Principal judgment
Parties:	Gulsen Ozbayrak (Plaintiff) Selda Tekeli (Defendant)
Representation:	Counsel: H Marshall SC (Plaintiff) A Renshaw (Defendant)   Solicitors: AJB Stevens Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2016/00035460

Judgment

1. In these proceedings, the plaintiff, Ms Gulsen Ozbayrak, seeks damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) for personal injuries said to have been suffered by her as a result of the negligence of her daughter in driving a motor vehicle in which the plaintiff was a passenger into a tree on 21 January 2013.

2. At all relevant times the plaintiff was not in paid employment. The evidence established that the plaintiff has never worked. Further, the plaintiff has not reached the impairment threshold of greater than 10% which allows the award of damages for non-economic loss under Section 131 of the Act.

3. The plaintiff’s claim was limited to one for damages for past out of pocket expenses, future out of pocket expenses and past and future care. Despite this, the case was strongly contested.

4. At the time of the accident, the plaintiff was wearing a seatbelt. There is no claim of contributory negligence.

The pleadings

5. Under the Amended Statement of Claim filed by the plaintiff on 12 September 2016 the plaintiff alleges that the accident occurred as a result of the negligence of her daughter, the defendant. On the second day of the trial, liability was admitted by the defendant and the hearing became largely an assessment of damages.

6. In the Statement of Particulars of Personal Injuries filed on 3 February 2016 the plaintiff particularises injuries to her neck, right and left shoulders, chest, lower back, right and left knees and also relied on shock. No claim was made for psychiatric injury arising from the accident.

7. In her Defence filed on 8 March 2017 the defendant admitted that a collision had occurred, and further did not admit that the plaintiff suffered any injury as alleged in the accident.

Credit findings

8. Oral evidence was given in the proceedings by the plaintiff and her 13 year old granddaughter, Ms M. A major issue in the proceedings is the credit and reliability of the plaintiff and Ms M.

The plaintiff

9. Senior counsel for the plaintiff submitted that the plaintiff should be accepted as a witness of truth and that she was making every effort in her oral evidence to tell the truth and make appropriate concessions. It was accepted that the plaintiff did not have, nor should she be expected to have, a detailed recollection of the nature and timing of her pre-accident medical complaints. While it was accepted that weight should be given to the medical records, it was submitted that the plaintiff’s evidence should generally be accepted, particularly in relation to her capacity to undertake domestic tasks prior to the accident and the effect of the accident on that capacity as well as the number of hours of assistance she was provided by her son, daughter-in-law and grand-daughter, Ms M, after the accident.

10. Counsel for the defendant submitted that the plaintiff should be rejected as a witness of truth and that she plainly gave false evidence in court on numerous occasions in relation to the extent of her pre-accident medical condition compared to her post-accident medical condition. The plaintiff was extensively cross-examined on these issues and in a number of cases the plaintiff’s oral evidence differed from the medical records.

11. Despite the submissions as to the plaintiff’s credit made on behalf of the defendant, I did not form the opinion that the plaintiff adopted an approach of deliberately lying to the court. In my view, the plaintiff was, wherever possible, attempting to give truthful evidence. It should clearly be accepted that the plaintiff’s recollection of her pre-accident medical condition was neither detailed nor comprehensive. On numerous occasions the plaintiff admitted pre-accident aches and pains but said that they became worse after the accident. Often the plaintiff’s evidence that she denied or did not recall medical complaints was contrary to the detailed medical records in Exhibit 1. Clearly, in my view, even having regard to the need to be cautious in relation to the accuracy of medical notes, the detail and consistency of the complaints meant that, on balance, the pre-accident medical records in Exhibit 1 should be given considerable weight and should generally be preferred to the plaintiff’s evidence.

12. However, I accept that the plaintiff was attempting to be truthful in her evidence when she said that she was able to do most activities domestically prior to the accident and that her injuries in the accident had led to her being unable to undertake many domestic activities apart from light cooking, light cleaning especially in the kitchen and light shopping using public transport. In chief, the plaintiff gave evidence that her grand-daughter undertook six hours of domestic assistance on weekends at the plaintiff’s house. The plaintiff was much less clear in relation to that matter in cross-examination. In my view some caution should be displayed in relation to the plaintiff’s evidence on this matter. This will be discussed further below in relation to the grand-daughter’s evidence.

13. Overall, I reject the attack on the plaintiff as a deliberately untruthful witness and find that, within the limits of her recollection and having regard to the time which has passed, the plaintiff was attempting to give truthful evidence. However, she was also clearly seeking to emphasise the effect of the accident on her and downplaying to some extent her pre-accident medical conditions. Further, she appeared to have a very poor recollection of her prior medical history which was complex.

Ms DM

14. Oral evidence was given by the plaintiff’s grand-daughter, Ms DM. Ms M was 13 years old at the time of the final hearing and turns 14 in November 2017.

15. Despite her age, I was satisfied from observing Ms M that:

1. She understood the importance of telling the truth in her evidence;

2. She was generally attempting to give accurate evidence.

16. Ms M impressed the court, despite her age, as being a mature young lady, who clearly loved her grandmother and was attempting to assist her grandmother in domestic duties wherever possible.

17. Generally, I accept Ms M as a witness of truth. It seems clear from her evidence, that Ms M was not aware of the detail of the plaintiff’s pre-accident medical history and was merely giving evidence as to her observations as a child of her grandmother before and after the accident. Ms M was actually a passenger in the motor vehicle in the accident. From the evidence it appears that she visited her grandmother fairly frequently after the accident and, particularly in the last two to three years following her father’s separation from her mother, stayed at her grandmother’s house on weekends with her younger brother while her father worked.

18. Important aspects of Ms M’s evidence were contrary to the evidence of the plaintiff. This will be discussed further below.

19. Accordingly, some caution should be displayed in relation to Ms M’s evidence as it was restricted to her observations of her grandmother’s condition and her own tasks undertaken at her grandmother’s house. Further, it seems that some aspects of Ms M’s evidence were unreliable. These will be discussed below.

The oral evidence of the plaintiff

Examination in chief

20. The plaintiff gave evidence that she was born in December 1962 (T16.28) and that she lived in a three bedroom duplex house with a front and back garden in the suburb of Minchinbury in Sydney in New South Wales. She stated that she was an invalid pensioner and had been so since 2005. She gave evidence in chief that she obtained a disability pension because of diabetes, blood pressure and other conditions. The plaintiff was divorced.

21. The plaintiff gave evidence that in the motor vehicle accident in January 2013 she was a passenger in a car driven by her daughter and was wearing a seatbelt. The plaintiff said that the car hit a tree with a fairly substantial degree of impact.

22. The plaintiff’s evidence was that in the accident she struck her knees on the underneath of the dashboard and also felt pain in her neck, arms and back. The plaintiff also gave evidence that her chest and shoulder areas were bruised.

23. The plaintiff stated that she was not able to get out of the car by herself and that an ambulance was called which took her to Mount Druitt Hospital. The major problems the plaintiff experienced at this time were pain in her chest, back, arms and neck and difficulties breathing because of the pain.

24. The plaintiff was examined at Mount Druitt Hospital and x-rays were undertaken. After five to six hours she was discharged into the care of her general practitioner. The plaintiff said that at this time she was suffering from a lot of pain.

25. The plaintiff gave evidence that prior to the accident she had suffered from health problems for many years. These included pains in her back, knees, and neck which were slight and came and went. In relation to her neck prior to the accident, the plaintiff said she suffered only slight pain. She agreed she complained to her doctor on occasions in relation to her neck pain and was prescribed medication which relieved the pain. The plaintiff also conceded that she had some slight pain in the back which also came and went. In addition she agreed that she had slight pains in the area of her knees. She described having a “medium” amount of pain in her knees: T20.16.

26. The plaintiff agreed that she also complained to her general practitioner from time to time about pain in her back and her knees and treatment was prescribed by her doctor which assisted her.

27. The plaintiff gave evidence that she had only complained about pain in her neck, back or knees on a few occasions in the 15 months prior to the accident as she did not have substantial pain in these areas.

28. The plaintiff gave evidence that she resided in a three bedroom single storey house which had one living room and one bathroom and an internal laundry. The house had gardens and shrubs at the front and back.

29. The plaintiff said that prior to the accident her son mowed the lawns. Prior to the accident the plaintiff gave evidence that she was able to look after the house by herself and do all chores in the house including cleaning, scrubbing the bathroom, preparing meals, vacuuming, washing and hanging the clothes on the clothesline. Also prior to the accident, the plaintiff’s grandchildren often stayed over with her and she looked after them and did the cooking and washing for them. She denied that she needed any assistance in the house prior to the accident. She also denied that any pain in her neck, back or knees stopped her doing domestic chores around the house.

30. The plaintiff gave evidence that she maintained the garden (other than mowing the lawns) herself and also maintained a vegetable patch prior to the accident. In her vegetable patch she grew numerous vegetables and did not need assistance.

31. Since the accident things had altered substantially. The plaintiff’s roses had died because she could not look after them anymore and she took a limited role in her vegetable patch which her son primarily maintained, although she is able to water it sometimes. Whereas before the accident the plaintiff was able to undertake planting, digging and raking in the garden and vegetable patch, she is unable to do that since the accident. This is due to pain which the plaintiff experiences in her back and arms and an inability to bend down to undertake the tasks. In relation to chores, the plaintiff is now no longer able to undertake the domestic activities which she was able to do prior to the accident such as laundry, scrubbing the bathroom, vacuuming and changing the sheets. Pain in the plaintiff’s knees, arms and back and an inability to bend down prevents her, according to her evidence, undertaking these tasks.

32. The plaintiff gave evidence that in the four years since the accident the pains in her neck, back and knees have worsened as time has gone by.

33. Prior to the accident, the plaintiff was able to do her shopping by herself and catch public transport to do this. Since the accident the plaintiff gave evidence that she could not lift anything although she was still able to catch public transport. The plaintiff said that the only shopping she did now was to purchase light items and that her son did her grocery shopping for her: T27.42.

34. The plaintiff appeared close to her 13 year old grand-daughter and gave evidence that her grand-daughter stayed over with her on weekends and helped her with tasks such as changing the bed linen, vacuuming, mopping the floors, cleaning the bathroom, washing the hand basin and washing and hanging out clothes: T27.37. The plaintiff also gave evidence that she had taught her grand-daughter to cook Turkish dishes but that her grand-daughter lifted the heavy saucepans because the plaintiff found them too difficult for her. The plaintiff gave evidence that on the weekends her grand-daughter spent approximately three hours on each of Saturday and Sunday undertaking domestic tasks for her: T31.11. Although the plaintiff gave evidence that her grand-daughter liked to stay with her and assist the plaintiff (T28.21), a question obviously arises as to the willingness of the grand-daughter to continue to undertake these heavy domestic tasks as she becomes an older teenager and wishes to socialise and study more.

35. The plaintiff agreed that an occupational therapist, Ms Kate Dawson, had come to her house to ask her questions while her grand-daughter was there and she said that she told the truth in relation to her activities and abilities to Ms Dawson.

36. In relation to the pain in her knees, the plaintiff said she had slight pain prior to the accident (T32.29) but since the accident the pain had increased substantially and continued to provide difficulties for the plaintiff up to the present day: T32.32.

37. The plaintiff agreed that Dr Bodel and Dr Mastroianni had recommended to her that she obtain physiotherapy assistance and the plaintiff said that she would avail herself of a physiotherapist for treatment if she obtained an award of damages which enabled her financially to do so. The plaintiff gave evidence that she had not used a physiotherapist in the past.

Cross-examination

38. The plaintiff was subjected to a lengthy and detailed cross-examination by counsel for the defendant in relation to her pre and post-accident medical history. This was successful in raising doubts as to the reliability of the plaintiff’s recollections of her pre-accident health.

39. At one stage the plaintiff gave evidence that she was “healthy” prior to the accident in answer to the question whether she had “general good health” prior to the accident in 2013: T66.22. The plaintiff said that she was on a disability pension at the time of the accident due to her diabetes, blood pressure and stomach problems as a result of an ulcer but was otherwise healthy.

40. The plaintiff conceded that she had been in a motor vehicle accident in 1986: T52.14. She asserted that although she had pains arising from the motor vehicle accident in 1986 they did not last and after a month or so they “went away”: T52.24; T55.42. The plaintiff said: “I didn’t have a lot of pain back then”: T54.19. However, the plaintiff conceded that she had made a claim in relation to the accident which she had settled (T56.5) and that she was still complaining about the after effects of the motor vehicle accident when she saw Dr David Manohar, musculo-skeletal rehabilitation specialist, on 18 March 2002: see report Exhibit 1 page 15; T52-55.

41. The plaintiff was not impressive in relation to her evidence on the point of how long her pains concerning the injuries arising from the 1986 motor vehicle accident lasted. The plaintiff said that “that was back then” (T54.7) and said she was not in a lot of pain arising from the accident and was still able to do what she needed to do. She denied that her evidence that the effects of the motor vehicle accident had only lasted a month or so was a lie: T54.35. The plaintiff said that with treatment she recovered from the effects of the 1986 accident: T55.23 (with treatment “afterwards I got better”).

42. The plaintiff, however, confirmed her evidence that she had recovered from the 1986 accident a few months after it: T55.42. This is contrary to the medical evidence: see Exhibit 1 pages 2, 5, 15 for examples.

43. The plaintiff was asked numerous questions about the claim form which she signed concerning the accident (Exhibit A, page 198), and particularly that part of the claim form that indicated that she had never been known by another name. The plaintiff confirmed that she had changed her surname and then asserted that she had not changed her first name. After some cross-examination the plaintiff then confirmed that she had changed her first and last names, including officially: see Exhibit 2. Although it was put to the plaintiff that she had deliberately given false evidence to the court that she had not changed her first name, I was not satisfied that the plaintiff had deliberately given false evidence as she appeared to have difficulties in understanding the questions relating to the completion of the first page of the claim form.

44. The plaintiff was then asked questions about consultations with a Dr Ali Gursel, a hip and knee surgeon. The plaintiff agreed that Dr Gursel was a Turkish speaker like herself and she had no problems in discussing her medical issues with him.

45. The plaintiff denied that she had any difficulties in performing the activities of daily living prior to the accident: T57.8. She then was taken to Dr Gursel’s report of 23 May 2012 at Exhibit 1, page 146 where Dr Gursel discussed the plaintiff’s problems with her knees and stated: “Her knees affect her ability to perform activities of daily living.” After some cross-examination, the plaintiff confirmed that she had told Dr Gursel this but stated that her difficulties were not excessive and did not cause her excessive pain: T58.5-58.40: .

46. The plaintiff was then asked about her consultations with a Dr Mowar Hossain in relation to the management of her diabetes from 2011: T61-69. The reports of Dr Hossain in evidence go from 2011 to 2016 and are in a number of respects similar in relation to the plaintiff’s conditions and difficulties. The plaintiff was taken to that part of the report of Dr Hossain of 12 March 2015 (Exhibit 1, page 176) where it states: “She is independent with activities of daily living including self-care. She goes shopping alone in public transport.” The plaintiff said she did not recall saying this to Dr Hossain at the time. She said that she looked after herself as much as she could and was not an invalid: T63.20. She denied telling Dr Hossain in 2015 that she did not need any assistance. She also denied that she said that she could undertake shopping on public transport alone. It is noted that this statement in Dr Hossain’s report is very similar to what appears in his earlier reports prior to the accident , for example the report of 26 July 2012 (Exhibit 1, page 148). Accordingly, there is a real possibility, despite contrary submissions from the defendant, that the doctor repeated the information from earlier reports. This is discussed further below.

38. In relation to her walking, the plaintiff gave evidence that she had difficulty walking since the accident and could only walk for about half an hour with a lot of stops: T60.38. The plaintiff was taken to Dr Hossain’s report of 12 March 2015 where it is stated that she walks on a treadmill for about 20 minutes daily except at the weekends when her grandchildren came to stay with her (Exhibit 1, page 176). The plaintiff said that while she did walking she did not use a treadmill. She later gave evidence that she had used a treadmill but it was now broken.

39. The plaintiff confirmed that she had fallen prior to the accident which had resulted in fractures and had fallen once since the accident which had also resulted in a fracture. (See Exhibit 1, page 176.); T67

40. The plaintiff was asked questions about problems with her knees. She confirmed that she had “slight” problems with her knees prior to the accident. However, she also confirmed that prior to the accident she had been on a waiting list for surgery to her knees (see Exhibit 1, page 147): T68.47. The plaintiff’s evidence as to her knees appears to have been unreliable.

41. The plaintiff confirmed in addition to problems with her knees the following health problems prior to the accident:

1. Depression: T69.8;

2. Slight problems with her lower back: T69.20;

3. Falling over due to problems with her knees: T69.12;

4. High blood pressure: T69.26; and

5. Severe Type 2 Diabetes: T69.33.

51. On the third day of the trial, counsel for the defendant cross-examined the plaintiff in relation to her pre-accident medical history from 1995 relying on the medical records which form part of Exhibits 1 and 3. What emerged from the cross-examination is that the plaintiff did not have a strong recollection of the detail of her medical conditions and aches and pains and medical attendances prior to the accident. It seemed clear to me, that where there was a conflict with her recollection, the medical records should be preferred, particularly in relation to pre-accident matters.

52. In summary, the evidence of the plaintiff in cross-examination which was more significant as to her pre-accident status was as follows:

1. Although the plaintiff conceded that she had various neck, back and knee pains prior to the accident she claimed that these became worse after the accident;

2. That while she had knee pain after her 1986 motor vehicle accident it was not bad at that time;

3. The plaintiff confirmed that she injured her knees in the 2013 accident: T77.35;

4. The plaintiff gave evidence that after the 2013 accident she could not remember things as well as before: T82.4;

5. The plaintiff denied having difficulty with domestic chores in 2003 and said she was still doing her chores then: T92.40; T93.27;

6. The plaintiff could not recall complaining of shoulder pains prior to the accident but said that she did have shoulder pain after the accident: T87.47;

7. The plaintiff confirmed having a stroke when told that her disability pension application was refused in 2004 but said that after treatment the damage to her face improved: T88.29;

8. The plaintiff confirmed recalling falling down in 2007 and injuring her right elbow: T88.50;

9. The plaintiff confirmed having injections for pain to her left and right knee in 2007: T89;

10. She accepted that it was probably true that she had injections for pain in her back in 2008: T90;

11. The plaintiff confirmed that she had aches and pains at the time but they were not severe;

12. The plaintiff could not recall telling Dr Gursel in 2012 that she was having difficulties performing her daily living activities because of pain in her knees. She said she was doing as much as she could domestically at this time: T93.23. The plaintiff said she was not dependent on anyone in relation to domestic activities in 2012: T94.17;

13. Prior to the separation of her son and daughter-in-law in 2014, the plaintiff gave evidence that on some occasions her daughter-in-law came over and helped her with domestic activities after the accident. After their separation, her grand-daughter assisted her with domestic activities. This has occurred for the last two to three years: T100-101;

14. The plaintiff confirmed that she had an arthroscopy to both knees in October 2013 and that she had been booked in for this prior to the accident.

53. Contrary to her evidence in chief, in cross-examination the plaintiff said that her grand-daughter assisted her for “maybe two, three hours” without stipulating whether this was daily on the weekend or over the whole of the weekend. The plaintiff conceded that this was “a guess” and that she did not check on the time of the assistance which her grand-daughter gave to her: T103.21-104.3.

54. The plaintiff was cross-examined about a time gap in her complaints about her neck, back and shoulder pain to her general practitioner in the period from August 2015 to July 2016. She said she did not recall not complaining in that period: T111.49.

55. The plaintiff specifically denied that she had only injured her chest and fractured her ribs in the accident and that she had a full recovery from her injuries within a few months: T112.19-.31. She also denied that the accident did not affect her ability to undertake tasks including domestic tasks except for a few months: T112.37.

Ms DM

56. As stated above, Ms DM is the plaintiff’s grand-daughter. At the time of the hearing she gave evidence she was 13 and several months of age, turning 14 in November 2017.

57. Ms M lives with her father, the plaintiff’s son-in-law, and was a student in Year 8.

58. Ms M gave evidence that prior to the accident she did not notice the plaintiff having any restrictions including problems with her neck, back or knees.

59. Ms M said that prior to the accident when she came to visit her grandmother, her grandmother was able to do all in-house domestic chores. She said she saw her grandmother vacuuming, mopping, cleaning the kitchen, cleaning the house and undertaking work in the garden such as planting vegetables and herbs and watering the plants and flowers.

60. Ms M gave evidence that she noticed changes in her grandmother after the accident. She said that her grandmother “could not do anything” and could only move slightly and undertake a few activities. In particular, Ms M gave evidence that:

1. The plaintiff could not undertake all the housework and domestic chores. Ms M gave evidence that she assisted her grandmother undertaking domestic chores including doing the washing, hanging the clothes out, taking them off the line, folding them and putting them away;

2. Ms M took the bed sheets from the plaintiff’s bed, put on cleaning sheets and made the bed;

3. Ms M vacuumed in the house;

4. The plaintiff only sometimes undertook duties in the kitchen. It was now harder for the plaintiff to undertake these duties and she took longer to do them;

5. The plaintiff could not undertake duties in the garden;

6. In relation to shopping, the plaintiff still went shopping but Ms M assisted the plaintiff in shopping by preparing a shopping list, putting the items in the trolley, paying for them and carrying the heavier bags. Ms M said that a shopping expedition in which she assisted the plaintiff took about one and a half hours per fortnight. It is noted that this evidence was inconsistent with the plaintiff’s evidence. The plaintiff gave evidence that her son did the shopping for her after the accident: T27.2 cf T131-2;

7. Ms M said that she assisted the plaintiff in preparing traditional Turkish cooking and that it took on average two hours to prepare the meal, cook it and wash up and clean afterwards;

8. Ms M said that she now undertook for her grandmother the vacuuming of the house, the mopping of the floors, wiping down the benches and cleaning the toilet and the bathroom. Overall, Ms M estimated that on an average weekend she undertook “probably 10 hours at least” of domestic duties for her grandmother: T134.27.

61. While Ms M said that she enjoyed assisting her grandmother, she had a couple of friends who undertook shopping and had sleepovers. She said she would like to do this with her friends: T134.45.

62. Ms M gave evidence that she never saw her grandmother in pain or with restrictions prior to the accident. She also never saw the plaintiff depressed prior to the accident: T146.12. She said her grandmother appeared to be in good health prior to the accident: T146.2.

63. Ms M agreed that she was expected to assist her grandmother when she stayed there on weekends and would help her whether she was sick or not: T148.11-.21. When the hearing resumed, Ms M gave evidence that it was difficult for her to determine how much help her grandmother needed after the accident. She importantly conceded that when she provided help to her grandmother she did not know whether the plaintiff needed help or not.

64. Overall, as indicated above, I accept that Ms M was attempting to give honest evidence and her best recollections of her grandmother’s pre-accident and post-accident conditions. However, a number of matters suggest I should exercise some real caution in accepting Ms M’s evidence in its entirety. I note the following:

1. Ms M was only about 10 years old prior to the accident and thus would not have likely been focussing on her grandmother’s health or restrictions;

2. Her evidence that the plaintiff appeared in good health prior to the accident is of limited weight in the light of the plaintiff’s numerous pre-accident health problems;

3. Ms M’s evidence of assisting her grandmother with the shopping was inconsistent with the plaintiff’s evidence that her son assisted her. In my view, the plaintiff’s evidence is more likely to be correct on this point;

4. Ms M’s evidence that she assisted the plaintiff going to medical appointments about 2 hours per week on the weekends (T150-151) seems highly exaggerated. The medical records of Dr Oner, the plaintiff’s general practitioner, suggest far less frequent attendances with no weekend attendances recorded in 2013-2016 in his notes in Exhibit A, as Ms M seems to claim: see Exhibit A page 36 and following. This impacts significantly on Ms M’s reliability;

5. Ms M’s estimate of “at least” 10 hours domestic assistance to her grandmother per week is inconsistent with the plaintiff’s evidence in chief and in cross-examination and seems unlikely in the light of that evidence. It would constitute her helping for a good portion of her weekend visit. Again, this impacts on Ms M’s reliability;

6. Ms M’s evidence about preparing elaborate traditional Turkish cuisine under her grandmother’s direction seems to me to have been because of her grandmother’s desire to pass on skills in cooking traditional Turkish food rather than general food preparation.

The medical evidence

65. Each of the parties tendered a folder of medical evidence.

66. In his opening, senior counsel for the plaintiff also handed up to assist the court a chronology relating to the plaintiff’s pre-accident and post-accident medical histories. It was frankly conceded that the plaintiff had an extensive medical history prior to the accident.

67. The folder relied upon by the defendant substantially consisted of documents relating to the plaintiff’s pre-accident medical history. This was to substantiate the submission, supported by medical reports relied on by the defendant from Dr D Maxwell, that the plaintiff had fully recovered from any injuries which she received in the accident. A detailed folder of Dr Oner’s notes was also tendered by the defendant and became Exhibit 3.

68. Having regard to the nature of the claim, it is regrettably necessary to set out in some detail the plaintiff’s pre-accident medical history. I will do so in a summary fashion except where it is necessary to provide more extensive detail.

69. The evidence establishes the following relevant pre-accident history of the plaintiff:

1. 9 March 1995 – anterior knee pain (Exhibit 1, page 1);

2. 11 January 1996 – complaints about back and knee pain. The plaintiff also complained that she had had problems with her back, neck and knee since a 1986 motor vehicle accident (Exhibit 1, pages 2-3, 5);

3. 23 January 1996 – complaints of back pain (Exhibit 1, page 8);

4. 20 August 2001 – the plaintiff complained to Dr Chaudhary, psychiatrist, that she had a history of pains and aches “all over her body” including her knees, arms, back and both feet for the last five years or so. The plaintiff also indicated that she had been very depressed since she had divorced from her husband (Exhibit 1, page 9);

5. 30 December 2001 – diagnosis by the plaintiff’s general practitioner Dr Oner of diabetes, depression and problems with the plaintiff’s lumbar and cervical spine (Exhibit 1, pages 12-14);

6. 18 March 2002 – Dr Manohar recorded complaints by the plaintiff in relation to neck pain, forearm pain, low back pain and thigh pain. Dr Manohar referred to the plaintiff’s motor vehicle accident in 1986. He noted that a CT scan of the cervical spine showed disc bulging at the C4/C5 and C5/C6 levels. The scan also revealed sclerosis and hypertrophy in the facet joints in the lumbosacral spine (Exhibit 1, pages 15-16);

7. 8 April 2002 – the plaintiff complained to Dr Manohar of neck pain and headaches with low back ache (Exhibit 1, page 17);

8. 6 June 2002 – a CT by Dr Waterland of the plaintiff’s cervical spine showed a mild disc bulge at C5/C6 with some degenerative changes (Exhibit 1, page 18);

9. 26 July 2002 – a CT of the plaintiff’s lumbosacral spine showed degenerative change at the L5/S1 level (Exhibit 1, page 19);

10. 25 November 2002 – the plaintiff’s general practitioner Dr Oner said that the plaintiff was suffering from neck pain, back pain, headaches and pain in both heels. He also referred to the plaintiff having depression, and other conditions including an ulcer (Exhibit 1, pages 27-34);

11. 1 May 2003 – Dr Acar, a rehabilitation specialist, recorded that the plaintiff was complaining of right shoulder pain for two months which had not improved (Exhibit 1, page 35);

12. 25 May 2004 – the plaintiff complained to Dr Manohar that she had low back pain and bilateral shoulder pain. She also complained of neck pain, headaches and bilateral knee pain. Dr Manohar diagnosed musculo-ligamentous pain with lumbar and cervical spondylosis with a CT scan showing a bulge at C5/C6 level (Exhibit 1, page 43);

13. 7 June 2004 – the plaintiff complained to Dr Chaudhary, psychiatrist, of pains in her shoulders, arms, legs and back (Exhibit 1, page 44);

14. 15 June 2004 – the plaintiff complained to Dr Oner of neck pain, back pain, pain in both heels and difficulty with heavy lifting and prolonged sitting, standing or working above shoulder level (Exhibit 1, pages 45-52);

15. 26 July 2004 – the plaintiff complained to Dr Acar of left elbow pain (Exhibit 1, page 53);

16. 30 August 2006 – the plaintiff complained to Dr Acar that her back pain was gradually intensifying. The plaintiff also described bilateral knee pains (Exhibit 1, page 82);

17. 20 September 2006 – the plaintiff was reviewed by Dr Acar who said that x-rays revealed only mild to moderate degenerative changes in the plaintiff’s knees and lumbar spine (Exhibit 1, page 84);

18. July 2007 – the plaintiff complained of a right elbow injury following a fall. A bone scan revealed degenerative changes in both wrists (Exhibit 1, page 97);

19. 28 August 2007 – Dr Acar injected the plaintiff’s left knee joint with pain relief medicine (Exhibit 1, page 99);

20. 30 October 2007 – the plaintiff was complaining of considerable pain in the elbow and considerable pain in the left knee (Exhibit 1, page 100);

21. 13 February 2008 – the plaintiff complained of bilateral knee pains which had benefited only slightly from cortisone injections. The plaintiff also complained of lower back pain (Exhibit 1, page 101);

22. 15 April 2008 – a Centrelink Job Capacity Assessment Report indicated that the plaintiff had permanent spinal and neck disorders as well as permanent depression and diabetes (Exhibit 1, pages 110-116). It was indicated that the plaintiff’s upper and lower back pain became worse with prolonged standing, sitting and bending of any type. It was indicated that the pain was getting worse over time and the severe lower back pain radiated down both thighs and legs and became worse with lifting, bending and twisting. Bilateral knee pain was also referred to;

23. 9 September 2008 – the plaintiff complained to Dr Acar of a recurrence of back pain and also complained of knee pains (Exhibit 1, page 117);

24. 26 November 2008 – an x-ray was undertaken of both knees which showed minimal degenerative changes only (Exhibit 1, page 118);

25. October 2009 – the plaintiff told Dr Foo, cardiologist, that she suffered from chronic back pain which required six monthly injections to her back. The doctor also referred to osteoarthritis in the knees (Exhibit 1, pages 122-123);

26. 23 November 2009 – a left knee arthrogram with a clinical history of severe pain showed that there were moderate tri-compartmental degenerative changes with cartilage loss in the left knee (Exhibit 1, page 124);

27. 2 June 2010 – Dr Gursel diagnosed problems with the plaintiff’s right knee due to arthritis following complaints of aches and pains all over the plaintiff’s body including her back and her knees (Exhibit 1, page 126);

28. 13 October 2010 – Dr Gursel noted that MRI scans confirmed degenerative changes and a meniscal tear in the plaintiff’s knees (Exhibit 1, page 128);

29. From 21 April 2011 – various reports of Dr Hossain, who was treating the plaintiff in relation to her diabetes, noted that the plaintiff had a background medical history of lumbar disc disease, osteoporosis with a history of trauma fractures including osteoarthritis of the knees in relation to which the plaintiff was on a surgical waiting list. It was noted that the plaintiff was limited in walking by significant osteoarthritis of the knees (Exhibit 1, pages 128-130). One report indicated that the plaintiff was assisted by relatives with domestic chores prior to the accident: Exhibit 1 page 132;

30. 20 October 2011 – an x-ray of the plaintiff’s cervical spine following neck pains reported mid-cervical disc related degenerative changes (Exhibit 1, page 140). An x-ray of the spine also noted degenerative changes in the cervical spine and the lumbar spine (Exhibit 1, pages 141-142);

31. 20 December 2011 – Dr Arulventhan, nuclear physician, noted arthritis at the L5/S1 level and in the right knee with mild degenerative arthritis of the wrists, hands, left knee and the feet (Exhibit 1, page 143);

32. 23 May 2011 – the plaintiff complained of problems with both her knees which affected her ability to perform activities of daily living. Dr Gursel recommended a cortisone injection in both knees (Exhibit 1, page 146).

70. An examination of the records of the plaintiff’s general practitioner, Dr Oner, also reveals complaints of bilateral knee pain on 22 April 2009; worsening left knee pain on 23 November 2009; right knee pain on 12 May 2010; right ankle pain on 11 August 2010; upper back pain on 11 November 2010; severe upper and lower back pain on 26 November 2011; severe neck and back pain on 28 November 2011; pain in the left knee on 9 May 2012; and deteriorating left knee pain on 27 July 2012.

71. There was also tendered substantial medical evidence in relation to the plaintiff’s post-accident condition.

72. The ambulance records generally confirm the plaintiff’s evidence in relation to her condition soon after the accident and in particular that the plaintiff was complaining of pain to her sternal area and spine.

73. The Mount Druitt Hospital records are similarly consistent and show that the plaintiff was discharged after several hours complaining of pain. The records note that the pain centre for the plaintiff was in the sternum area with bruising noticed to the left and right shoulder, the breast area and the lower abdominal area. Initially no rib fractures were diagnosed (Exhibit A, page 20).

74. Various medical certificates from the plaintiff’s general practitioner, Dr Oner, note injuries to the plaintiff’s neck, chest wall, back and shoulders including bruising to the chest wall and abdominal regions. The certificate dated 18 February 2013 (Exhibit A, page 35) includes “she is [sic – has?] known neck and back condition which were aggravated by the accident”: see also Exhibit A, page 53. It is noted that the plaintiff’s complaints in relation to pain in her chest wall, back, neck and legs continued in the period 2013 after the accident to 2016 in Dr Oner’s notes whereas prior to the accident there were only limited references to knee, neck and back pain in his notes.

70. A bone scan undertaken on 12 February 2013 by Dr Arulventhan showed numerous fractures to the plaintiff’s ribs (Exhibit A, page 124). As this was soon after the accident and there is no other cause suggested, these rib fractures clearly arose from the accident.

71. The plaintiff saw a number of specialists. In a report dated 11 February 2014, Dr Guirgis, orthopaedic surgeon, noted that the plaintiff complained of a recurrence and aggravation of severe pain and stiffness in the neck and lower back dating back to the plaintiff’s 1986 motor vehicle accident. The plaintiff also indicated that since the 2013 accident she had painful stiffness and heaviness of the right shoulder and pains in her knees. Dr Guirgis noted that the plaintiff had numerous fractures of the upper and lower sternum and ribs that had been treated conservatively and had healed. He also noted that there were no objective signs of radiculopathy in the plaintiff’s cervical and lumbosacral spine. He was of the view that the accident had caused further post-traumatic mechanical derangement of the cervical spine and soft tissue injuries to the right and left shoulder joints, and the knees. Dr Guirgis indicated that surgical treatment was not indicated but the plaintiff should have physiotherapy and continued pain medication.

72. A whole body bone scan was undertaken on 2 July 2015 and no relevant radiculopathy was noted (Exhibit A, pages 89 and 102).

73. The plaintiff was reviewed by Dr Bodel, orthopaedic surgeon. As to the plaintiff’s past medical history, he noted that she suffered from hypertension, had previous right knee arthritis, had a previous arthroscopy in 2010 and had been involved in a motor vehicle accident in 1986 with injuries to her neck and back but also noted that the plaintiff stated that her neck and back “recovered over a few years and she was then asymptomatic until this accident”. He also noted that the plaintiff complained of pain in the neck, lower back, both shoulders, buttocks, thighs and knees. The plaintiff reported to Dr Bodel that she had steadily deteriorated over time. The plaintiff indicated to Dr Bodel that she struggled with all household maintenance and cleaning activities and that other members of her family assisted with these activities which she used to do. No x-rays or other tests were available for review by Dr Bodel when he saw the plaintiff but Dr Bodel did have some reports which referred to radiological examination.

74. Dr Bodel diagnosed that the plaintiff’s clinical condition had stabilised and that she had ongoing soft tissue injuries to the neck, the shoulders, the back and the knees. Dr Bodel also noted that there had been an aggravation of previously symptomatic degenerative change in the plaintiff’s right knee. He expressed the opinion that the plaintiff did not require any ongoing surgery in the neck or back, shoulders or knees at the time of his report and that she required ongoing conservative care with rest and analgesic medication. Dr Bodel expressed the opinion that the plaintiff had a need for domestic assistance as a result of the motor vehicle accident.

75. It is noted that Dr Bodel seems to have been provided with a limited history in relation to the plaintiff’s pre-accident condition: see Exhibit A page 133. However, he was apparently provided with Dr Oner’s notes which may have assisted him: see Exhibit D page 5.

76. The plaintiff also tendered two Medical Assessment Service reports following examinations by Dr I Meakin.

77. In his report dated 13 May 2014, Dr Meakin diagnosed soft tissue injury to the plaintiff’s cervical spine, lumbar spine, left and right shoulders and left and right knees. The plaintiff’s pre-accident condition was referred to in some detail. Dr Meakin referred to the various radiological reports in the period 2012 to 2014 and noted the degenerative changes in the plaintiff’s knees, pelvis, lumbar and cervical spine. A pre-existing history of lumbosacral disc bulge was noted.

78. Dr Meakin also expressed the opinion:

1. That the accident had caused both knees of the plaintiff to become more symptomatic in the form of anterior knee pain;

2. The plaintiff’s fractured ribs had healed with no ongoing symptomatology;

3. In relation to the plaintiff’s cervical spine, the scans demonstrated some disc degenerative change but no suggestion of traumatic injury;

4. In relation to the lumbar spine, the scans suggested likely degenerative changes;

5. The right and left shoulder restrictions pre-existed the 2013 motor vehicle accident;

6. The plaintiff’s right knee was symptomatic prior to the motor vehicle accident with an increase following the motor vehicle accident. However, Dr Meakin was not convinced that arthroscopic intervention with the plaintiff’s right knee would result in long term improvement.

7. A further Medical Assessment Service certificate was issue by Dr Meakin in January 2017 which again found soft tissue injury in the plaintiff’s cervical spine, lumbar spine, left and right shoulders and left and right knees.

84. Dr Meakin noted in the second report that Dr Bodel had made no reference to past cervical or neck disorder in his 13 July 2016 report, although he had noted the previous motor vehicle accident. In his second report Dr Meakin found an increased percentage of permanent impairment largely due to continued problems with the plaintiff’s lumbar spine.

85. The plaintiff also relied on a report of Dr T Mastroianni, consultant occupational physician, dated 30 August 2016. After examination of the plaintiff, Dr Mastroianni confirmed that the plaintiff had received injuries to the neck, back, chest, shoulders and knees in the accident. He diagnosed: whiplash associated disorder of the cervical spine; mechanical lower back problem, bilateral shoulder tendonitis; bilateral injury to the knees and a fractured sternum. Apart from analgesia and anti-inflammatories he expressed the opinion that the plaintiff needed no other treatment. His conclusion was that the injury had aggravated and precipitated symptoms from cervical and lumbar spondylosis and that the plaintiff would benefit from physiotherapy and required domestic assistance.

86. An occupational therapy report from Ms Kate Dawson dated 16 August 2016 noted that the plaintiff had been given past gratuitous assistance in the amount of 23 hours per week from 27 January 2013 to 31 May 2013 and eight hours per week from June 2013 to the date of the report. Ms Dawson recommended six hours per week of future assistance for the plaintiff being commercial domestic, gardening and transport assistance.

87. As well as extensive pre-accident medical reports the defendant also relied on numerous post-accident reports. These included:

1. Numerous reports from Dr Hossain, consultant physician, who was managing the plaintiff’s Type 2 Diabetes and who noted numerous medical conditions, including serious diabetes, hypertension, lumbar disc disease, osteoporosis, osteoarthritis of the knees and depression including prior to the accident;

2. A report of Dr Frank Machart, orthopaedic surgeon, dated 6 January 2014 who noted osteoarthritis in the plaintiff’s right knee and a superimposed tear of the medial meniscus which appeared to be pre-accident;

3. Problems with the arches of the plaintiff’s feet – report of Dr Robert Adler, pain management consultant, dated 2 May 2014;

4. A report of Dr Konidaris, orthopaedic surgeon, dated 16 October 2014 noting that a right knee arthroscopy had been performed to the plaintiff which in due course may require a knee replacement;

5. A report of Dr Frank Machart, orthopaedic surgeon, dated 31 August 2015 concerning the plaintiff’s right elbow which indicated early osteoarthritis. The elbow problem arose from a fall post-accident;

6. A report of Dr Teresa Lam, dated 31 May 2016, which showed lumbar spine bone mineral density in the osteoporotic range and a moderately increased risk of minimal trauma fracture in the plaintiff.

88. The defendant also relied on medico-legal reports from Dr Maxwell, orthopaedic surgeon, and Dr Newlyn, psychiatrist.

89. In his 6 June 2017 report, Dr Maxwell provided an extensive history from the plaintiff and set out the plaintiff’s complaints. He expressed the opinion following his examination that any soft tissue injuries suffered by the plaintiff in the accident had now settled and any pain the plaintiff was experiencing in her knees, back, neck and shoulders was due to pre-existing pathology. He appeared to base this primarily on the plaintiff’s long history of co-morbidities and pain.

90. The plaintiff makes no claim for depression arising from the accident. However in his report dated 22 June 2017, Dr Newlyn diagnosed persistent depressive disorder with symptoms recorded from 2008 with an exacerbation caused by the subject accident. Dr Newlyn expressed the opinion that the plaintiff’s persistent depressive disorder which she had suffered from since 2008 was likely to persist throughout her lifetime.

Evidence of Dr Oner

91. The plaintiff’s general practitioner Dr Oner gave oral evidence in the proceedings. He speaks to the plaintiff in Turkish, her native language.

92. He was taken to his report at Exhibit A pages 122-3 and agreed that this was the first time he indicated a need for domestic assistance for the plaintiff after the accident. Dr Oner also agreed that in his view the plaintiff continued to have a need for domestic assistance arising from the accident. He stated that the first time the plaintiff complained in relation to her knees in relation to the accident was in October 2013 several months after the accident.

93. Dr Oner was taken to a Medicare history report dated 13 June 2017 which had ticks on it and which became Exhibit F in the proceedings. He stated that the ticks were added to the document by him and they represented services which in his view were connected to injuries received by the plaintiff in the accident.

94. Dr Oner was then cross examined in relation to numerous specialist reports received by him both before and after the accident. These included reports which suggested the plaintiff received and was in need of domestic assistance before the accident or had difficulties undertaking domestic duties before the accident (Exhibit 1 pages 35, 57, 132 and 146) and was independent in her activities of daily living after the accident (Exhibit 1 pages 164-7 and 204). In relation to the latter documents, Dr Oner said the plaintiff “was not dying” and he believed she could cook for herself if no one else was around. However, Dr Oner said he was of the opinion that none of the documents he was shown in cross-examination had altered his opinion that the plaintiff required domestic assistance now arising from the injuries she had received in the accident. He said he was in a position to express this view as he saw her on a regular basis. He said Dr Hossain’s history set out in his post-accident report must have been recorded wrongly through a miscommunication.

Findings on the medical evidence

95. The plaintiff’s pre and post-accident medical history is complex and somewhat difficult to determine with accuracy.

96. The defendant relied on numerous pre-accident medical records including histories given to doctors and notes in the records of the plaintiff’s general practitioner, Dr Oner.

97. It is, of course, important that caution should be exercised in placing too much weight on the histories set out in medical reports for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. See also Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144]. The medical reports relied on by the plaintiff and the defendant in the present case were all admitted without objection and no limiting order was sought under Section 136 of the Evidence Act 1995 (NSW). Accordingly, pursuant to Section 60 of the Evidence Act, the histories set out in the admitted medical reports are admissible as to the truth of the facts set out in them: see the comments of Bergin CJ in Equity in Ceva, above, at [142]-[143].

98. However, in the present case, in my view some weight can be placed on the pre-accident medical histories recorded because:

1. That pre-accident medical history is extensive;

2. The plaintiff’s complaints about problems with her knees, neck and back prior to the accident are repeated on numerous occasions in the period from 1995 to 2012 as I have set out above;

3. In most cases, the plaintiff did not dispute the fact that she had troubles including aches and pains in her knees, neck and back prior to the accident particularly arising from a previous motor vehicle accident in 1986.

99. In my view, in general terms, to the extent there were inconsistencies between the plaintiff’s evidence as to her medical condition prior to the accident and the material appearing in Exhibits 1 and A, the documentary evidence should be preferred. The plaintiff impressed as not having a strong recollection of the detail of her pre-accident medical conditions.

100. It is clear from the medical evidence that the plaintiff had ongoing problems with her knees, neck, back and shoulders prior to the accident. Despite the plaintiff’s evidence that all her complaints prior to the accident did not affect her activities of daily living, I think that the problems did so on occasions. I refer, for example, to the history set out by Dr Gursel in his report dated 23 May 2012 (Exhibit 1, page 146) where he stated that the plaintiff told him that her knees affected her ability to perform activities of daily living. This is likely having regard to the plaintiff’s frequent complaints in relation to her knees. See also Dr Hossain’s report dated 19 May 2011 at Exhibit 1 page 132.

101. The defendant relied on the numerous reports of Dr M Hossain, consultant physician, provided both before and after the accident which suggested that at all times both before and after the accident the plaintiff was independent with activities of daily living including self-care. First, it is unclear precisely what was meant by Dr Hossain by this sentence, as the doctor was not called to give oral evidence. Secondly, this sentence is repeated in Dr Hossain’s pre-accident and post-accident reports. The defendant submitted that it appeared that Dr Hossain changed his history from report to report and clearly therefore did not merely repeat slabs from his previous reports. I am not satisfied that this was the case in relation to the assertion that the plaintiff told him that she was independent with activities of daily living including self-care after the accident. As far as I can see, this phrase was not altered in his reports when used both before and after the accident. Its reliability is therefore questionable.

102. In any case, overall, generally I prefer the direct oral evidence of the plaintiff and Ms M on this issue.

103. The plaintiff clearly had numerous problems before the accident which included diabetes, hypertension, osteoporosis, a facial palsy, depression, osteoarthritis of the knees and vitamin D deficiency, as well as problems in her neck, back, shoulders, forearms and wrists. However, little radiculopathy was shown in the important areas of the neck, back, shoulders and knees other than usual degenerative changes except for disc bulging which was referred to in some reports at the C5/C6 levels.

104. For the defendant, Dr Newlyn diagnosed depression which had existed since 2008. Dr Maxwell diagnosed soft tissue injuries to the plaintiff’s knees, back, neck and shoulders which had now settled and any further pain was due to pre-existing pathology.

105. The plaintiff’s medical reports diagnosed, apart from the rib fractures, soft tissue injuries which had led to ongoing problems with the plaintiff’s back, neck and shoulders. See Dr Guirgis in his report dated 11 February 2014 (Exhibit A, pages 115-116), Dr Bodel in his report dated 13 July 2016 (Exhibit A, pages 135-136), Dr Mastroianni in his report dated 30 August 2016 (Exhibit A, pages 155-156) and the reports of the medical assessor Dr Meakin (Exhibit A, pages 161, 170, 175-177, 182, 191, and 192-197).

106. Overall, I prefer the conclusions of Dr Meakin who was provided with a detailed pre-accident medical history including imaging reports, the report of Dr Guirgis, the report of Dr Bodel and the report of Dr Mastroianni. The findings of Dr Meakin are generally consistent with those of Dr Bodel who was apparently not provided with a complete history. These reports are also consistent with the evidence of the plaintiff (in relation to which I exercise some caution) and the evidence of Ms M (in relation to which I also exercise some caution as it is limited to her observations as to the plaintiff’s pre and post-accident activities).

107. In my view the report of Dr Maxwell which finds no continuing injuries and a complete resolution of all accident injuries is inconsistent with the balance of the medical evidence and the factual evidence provided by the plaintiff and Ms M. I therefore do not accept it.

108. I find that the plaintiff has some continuing disabilities arising from the accident including the symptoms as set out in the reports of Dr Bodel and Dr Meakin although there are no objective radiculopathy indications.

109. Overall, in the light of the medical evidence, I find that the accident aggravated and caused soft tissue injuries to the plaintiff’s neck, back and shoulders and rendered more symptomatic the plaintiff’s knees. I accept the conclusions of Doctors Bodel, Guirgis and Meakin including generally their views as to continuing restrictions and the need for assistance (as qualified in the reasons below) and analgesics.

Factual findings

110. Having regard to all of the evidence and the submissions of the parties I make the following factual findings. I will make my findings in relation to the claims for past and future care further below:

1. The plaintiff was born in December 1962 and was 54 years of age at the date of trial. She lives in the suburb of Minchinbury in Sydney in New South Wales in a three bedroom, one bathroom duplex house with a front and back garden.

2. The plaintiff was born in Turkey and migrated to Australia in 1981. She has never been in paid employment. She was previously married and has a grown up daughter and son. She is divorced. The plaintiff has a number of grandchildren including a 13 year old grand-daughter DM with whom the plaintiff has a close relationship.

3. The plaintiff was involved in a motor vehicle accident on 27 January 2013. The motor vehicle in which she was a passenger and which was driven by her daughter collided with a tree causing the plaintiff injury. Liability has been conceded by the defendant. Ms M, the plaintiff’s grand-daughter, was a passenger in the motor vehicle.

4. Prior to the accident the plaintiff had a very extensive medical history which has been outlined above;

5. The plaintiff was taken to Mount Druitt Hospital by ambulance and was discharged later that day. The plaintiff’s post-accident medical history is set out above.

6. Prior to the accident the plaintiff’s son mowed her lawns. The plaintiff had a garden and a vegetable patch and she undertook the duties in relation to these.

7. The plaintiff gave evidence that she undertook all domestic duties inside the house including self-care, cooking and cleaning prior to the accident. I find this is substantially but not totally correct. Some references in the medical records of the plaintiff indicate the plaintiff was having difficulties even prior to the accident with domestic duties. These suggest that the plaintiff probably received help on occasions from her son, daughter or daughter-in-law in relation to domestic duties prior to the accident due to her medical conditions.

8. The plaintiff’s pre-accident medical history was extensive and included Type 2 Diabetes, hypertension, depression following her separation from her husband, asthma, an ulcer, problems and pain with her neck, knees, back, shoulders, heels, wrists and feet and osteoporosis. She had received injections for pain in the knees and lower back. The plaintiff has received a disability support pension since 2005.

1. After the accident the plaintiff received domestic assistance from her son, daughter-in-law and for the last two to three years from her 13 year old grand-daughter. The grand-daughter is the daughter of the plaintiff’s daughter. She frequently stays with the plaintiff with her younger brother on the weekends while her father works.

2. The plaintiff now pays for her lawn to be mown every fortnight. She pays this with moneys from her Disability Support Pension. Her son completes her heavy shopping and duties in the garden.

3. As indicated below, I think it likely that the plaintiff’s grand-daughter will assist the plaintiff substantially less in the future as she grows older, wants to spend more time with her friends and has more demanding duties with her studies at school or with part-time employment. As found further below, I think it likely that the plaintiff will need paid commercial assistance for her continuing disabilities in about two years’ time.

4. I make findings in relation to past and future out of pocket expenses and past and future care below.

Duty of care and breach

111. As stated above, the defendant no longer disputes liability in relation to the car accident in which the plaintiff was injured.

Causation

112. The principles relating to causation in the Civil Liability Act 2002 (NSW) (“the CLA”) apply in relation to civil liability under the Act: Section 3B(1)(e) and (2) of the CLA.

113. The cause of action in negligence is to be determined in relation to causation in accordance with Section 5D of the CLA. Section 5D of the CLA is as follows:

“5D   General principles

(1)  A determination that negligence caused particular harm comprises the following elements:

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

114. Section 5E of the CLA is as follows:

“5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

115. Accordingly, the plaintiff has the onus of proving on the balance of probabilities any fact relevant to the issue of causation.

116. The relevant principles in relation to Section 5D are set out in the following cases: Strong v Woolworths Ltd (2012) 246 CLR 182 at [18]; Wallace v Kam (2013) 250 CLR 375 at [16]-[19]; and Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ at [198], at [197] per Beazley P and at [319]-[324] per Basten JA.

117. The determination of factual causation in accordance with Section 5D(1)(a) of the CLA involves the application of a “but for” test of causation. That is to say, a determination that in accordance with the section that negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths Ltd, above, at [18].

118. The question in the present case is what injuries did the motor accident in January 2013 cause to the plaintiff? The further question is to what extent the plaintiff continues to suffer from any disabilities arising from the accident giving rise to the need for past and future care.

119. This has been partly considered in relation to the findings concerning the medical evidence and will be further considered in relation to that part dealing with past and future care.

120. It is clear that the plaintiff suffered some injuries in the accident being fractured ribs and also soft tissue injuries to at least her neck, back, shoulders and extensive bruising to her chest.

121. The fractures to her ribs and sternum have all healed satisfactorily and the issue is the extent to which she still suffers from the soft tissue injuries and the aggravation to her knees.

Damages

Past out of pocket expenses

122. There was agreement between the parties as to $814.30 for past out of pocket expenses. There was disagreement in relation to the sum of $103.65 which is for imaging services provided by Dr McWhirter on 13 March 2017. In Exhibit F Dr Oner marked these as services connected to the motor vehicle accident in question. In my view, this establishes the causal connection to the accident and I allow the amount. Accordingly, I allow $917.95 in total for past out of pocket expenses.

Future out of pocket expenses

123. The plaintiff under this head seeks $35,667. That is made up as follows:

1. Review by her general practitioner – two times annually ($200) equals $3.85 per week;

2. Physiotherapy – ten times annually at $100 per visit equals $19.23 per week;

3. Analgesia - $25.38 per week

4. Total - $48.46 per week - $48.46 x 865.9 multiplier discounted by 15% = $35,667.

124. In relation to the claim concerning visits to the plaintiff’s general practitioner, the evidence shows that the plaintiff visits her general practitioner, Dr Oner, on a regular basis for her numerous medical conditions. Dr Bodel expresses the opinion that the plaintiff requires ongoing conservative care with rest and analgesic medication and should remain under the care of her local doctor (Exhibit A, page 136). Dr Mastroianni expresses the opinion that the plaintiff will need to see her doctor a couple of times per year for review and prescriptions (Exhibit A, page 156). As I am of the view that the plaintiff sees her doctor regularly for other medical conditions I would allow one visit per year in addition at $100 equalling $1.92 per week.

125. In relation to the need for physiotherapy the plaintiff claims 10 annual treatments at $100 per treatment. Dr Mastroianni expresses the opinion that the plaintiff would benefit from half a dozen treatments of physiotherapy once or twice per year with an estimate of $1,200 to $1,500 per year (Exhibit A, page 157). Dr Bodel expresses the opinion that the plaintiff should have physiotherapy on an as needs intermittent basis (Exhibit A, page 136). Having regard to the fact that the plaintiff’s continuing injuries arising from the accident are largely soft tissue only and she had existing conditions in her back, neck, shoulders and knees, I would only allow three visits annually at $100 per visit, amounting to $5.77 per week.

126. In relation to analgesic medication, both Dr Bodel (Exhibit A, page 136) and Dr Mastroianni (Exhibit A, page 157) indicate that the plaintiff will need to take analgesia and anti-inflammatories for the foreseeable future. I allow $25 per week under this head.

127. The extensive medical evidence in Exhibit 1 and the cross-examination of the plaintiff established, in my opinion, that the plaintiff had numerous difficulties including aches and pains and degenerative conditions in her neck, back, and knees prior to the accident. Absent the accident, these would have likely continued to give the plaintiff further problems as she aged.

128. The amounts allowed total $32.69 per week x 865.9 (being a multiplier for 34 years at 5%) discounted by 15% = $24,060.

Past domestic assistance

129. The plaintiff seeks an amount of $60,672 for past domestic assistance calculated as follows:

1. 27 January 2013 – 31 May 2013 (18 weeks): 23 hours per week at $28 per hour = $11,592 (the plaintiff’s submissions incorrectly calculated this amount);

2. 1 June 2013 – 15 August 2016 (167 weeks): 8 hours per week at $30 per hour = $40,080;

3. 16 August 2016 – 2 August 2017 (50 weeks): 6 hours per week at $30 per hour = $9,000.

130. The defendant submitted that no allowance should be made for this head of damage because the assistance provided to the plaintiff was below the statutory threshold of six hours per week for six months and in any case the plaintiff had not required domestic assistance for a period of six months: see Section 141B of the Act.

131. Section 141B(3) of the Act makes clear that no compensation is to be awarded for domestic services unless the services are to be provided for at least six hours per week and for a period of six consecutive months.

132. The claims of the plaintiff are consistent with the recommendations of past gratuitous assistance and recommended further assistance in the report of Ms Kate Dawson, occupational therapist, dated 16 August 2016 (Exhibit A, page 142). It is noted on page 3 of her report that Ms Dawson refers to the plaintiff being involved in 1986 in a motor vehicle accident where she sustained injury to her neck, knees and right elbow and that the plaintiff informed her that she had “fully recovered” from those injuries. Accordingly, Ms Dawson prepared her report on an incorrect past medical history. The details provided under the heading “general health” in Ms Dawson’s report also provide only a very limited medical history in relation to the plaintiff. Exhibit 1 and the cross-examination by counsel for the defendant established that the plaintiff had very substantial medical complaints and conditions at the time of the accident.

133. Ms Dawson was given a limited pre-accident medical history in relation to the plaintiff as follows:

“Ms Ozbayrak reported that prior to the subject accident she suffered from diabetes. Upon review of the medical notes she had pre-existing bilateral knee injuries and resolved neck injuries from an MVA in 1986. She reported that prior to the accident she was independent in the performance of all of her internal domestic duties. She did however require assistance from her son to mow her lawns”: Exhibit A, page 144.

134. In fact, the medical evidence establishes that the plaintiff continued to have problems with her neck, lower back, shoulders and knees in the years leading up to the accident.

135. The evidence establishes the following:

1. The plaintiff said in her evidence in chief that she gave correct information to Ms Dawson;

2. The plaintiff said that she was independent and able to perform all internal domestic duties prior to the accident;

3. The plaintiff gave evidence that she was able to do few domestic duties after the accident other than light shopping, light cooking and minimal cleaning in the kitchen.

136. In my view, the claim for the initial period of 27 January 2013 to 31 May 2013 should be allowed. The plaintiff was clearly involved in a nasty accident, had numerous fractured ribs, and soft tissue injuries at least to her back, neck, both shoulders and the chest wall/sternum areas (see Exhibit A, pages 51-53). Accordingly, the amount sought of $11,592 for the period 27 January 2013 to 31 May 2013 should be allowed.

137. The next period claimed for is the period 1 June 2013 until 15 August 2016, the latter date being the day before Ms Dawson’s report. Past domestic assistance for eight hours per week at $30 per hour is sought. This is set out at page 9 of Ms Dawson’s report (Exhibit A, page 148).

138. In determining what amount should be allowed, in my view I should take into account the following matters:

1. Ms Dawson’s report, albeit that it was prepared with a limited past medical history in relation to the plaintiff;

2. The evidence of the plaintiff and her grand-daughter Ms M;

3. The extensive pre-accident medical history of the plaintiff including her problems with her neck, back, shoulders and knees;

4. The undoubted injuries which the plaintiff received in the accident as reflected in the ambulance and hospital records and the records of her general practitioner;

5. The limited ongoing continuing disabilities of the plaintiff as revealed in the reports of Drs Bodel, Mastroianni and Meakin;

6. The plaintiff’s presentation in her oral evidence.

139. The plaintiff’s general practitioner is Dr Oner. There are few references in his notes after April 2014 to pain in the neck, back, shoulders and knees by the plaintiff until August 2015 (Exhibit A, page 40) and no complaints of pain in these areas between 14 August 2015 and 25 July 2016.

140. In my view I think it is likely that the plaintiff eventually became used to other people undertaking domestic tasks for her after her initial injuries improved. The lack of complaint between 14 August 2015 and 25 July 2016 is significant in assessing this matter. The limited complaints from April 2014 to August 2015 are also significant. In my view, taking into account the plaintiff’s medical consultations with Dr Oner, I should allow eight hours per week for the period from 1 June 2013 to 31 May 2014 (52 weeks) at $30 per hour. This amounts to $12,480.

141. Despite what appears at page 9 of Ms Dawson’s report (Exhibit A, page 148), I am not satisfied on the evidence that the domestic services provided in the past to the plaintiff after 31 May 2014 to date reach the statutory threshold of six hours per week. I therefore allow no amount for that period. The plaintiff estimated in chief that her grand-daughter provided her with six hours of domestic assistance per week. He son also undertook gardening duties and shopping for the plaintiff. The plaintiff’s grand-daughter estimated that she spent “probably at least 10 hours per week” undertaking domestic duties for the plaintiff but in my view, although I believe she was attempting to tell the truth as to her estimate, the estimate appeared to be exaggerated as Ms M’s estimate of at least two hours per week taking the plaintiff to medical appointments did not seem to be reflected in Dr Oner’s medical records and, in any case, the plaintiff had numerous other medical conditions.

142. In relation to the domestic duties undertaken for the plaintiff after 31 May 2014, I think it likely that a substantial portion of these were due to the plaintiff’s existing medical conditions including problems with her knees, wrists, back, neck and depression or were provided on a continued basis by relatives where there was not the same need for them after the plaintiff’s initial injuries had improved.

143. Doing the best I can on the limited evidence and taking into account all of the medical evidence, I would estimate that after 31 May 2014 only three-four hours of domestic assistance were provided to the plaintiff each week to assist her with duties which she had previously completed prior to the accident and which she could only not complete because of her ongoing disabilities arising from the accident. Help in the garden by her son was also likely to be seasonal. The duties where assistance was required were the heavier duties such as cleaning the bathroom, cleaning the house and making/changing the plaintiff’s bed.

Future domestic care

144. Ms Dawson recommends that six hours of future commercial care be provided to the plaintiff (Exhibit A, pages 149-150). This includes one hour of transport assistance per week to attend medical appointments. The evidence does not, in my view, support the allowance of this amount in the future for medical appointments for conditions arising from the accident.

145. Currently, the plaintiff’s son assists the plaintiff with shopping and outside gardening assistance and I consider this will continue in the future. There is accordingly no need established for the plaintiff to have assistance with shopping or outside gardening. In Miller v Galderisi [2009] NSWCA 353 the Court of Appeal held that paid care should not be awarded to a plaintiff if the evidence is that gratuitous care would continue to be provided: see at [14]-[17].

146. In relation to future domestic services around the house provided by the grand-daughter, I find that the need for only 2-3 hours of these services per week is caused by the accident, doing the best I can on all of the evidence. This need is in the area of cleaning particularly the bathroom and other heavy duties. Although Ms M gave evidence that she liked doing the domestic chores for her grandmother as assistance by a grand-daughter was expected and she loved her grandmother, I think it likely as Ms M becomes an older teenager that she will spend less time with her grandmother and want to spend more time with her friends or with studying or part-time work.

147. I therefore allow 2.5 hours per week commercial care at $30 per hour (the rate sought by the plaintiff in her schedule of damages) deferred for two years.

148. The question arises whether the award should be for 34 years being the plaintiff’s life expectancy at her current age or for a lesser period. In my view, having regard to the plaintiff’s extensive other medical conditions and the fact that she was given domestic help on occasions prior to the accident, the plaintiff would have likely required paid commercial assistance in the future because of advancing age and the further degeneration of her neck, back, shoulders and knees. Doing the best I can on the evidence I would allow 2.5 hours commercial assistance per week at $30 per hour deferred for two years for 20 years. I would not further discount it by 15% as in my view the reduction to 20 years already is a proper allowance for contingencies.

149. This may be calculated as follows: 2.5 hours per week x $30 per hour x 20 years (multiplier 666.4 on the 5% tables) x 0.907 (being $1 deferred for two years on the 5% tables) = $45,331.

150. Accordingly the amount to be awarded to the plaintiff is as follows:

Past out of pocket expenses	$917.95
Future out of pocket expenses	$24,060.00
Past care	$24,072.00
Future care	$45,331.00
Total	$94,380.95

Disposition

151. The parties should review these reasons and check the calculations which I have made and bring in Short Minutes of Order to reflect these reasons.

152. Accordingly, I make the following orders:

1. Judgment for the plaintiff.

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

3. Liberty to the parties to apply to vary the costs order in (2) above.

4. The parties are to bring in Short Minutes of Order calculating the damages in accordance with these reasons within seven days;

5. Exhibits to be returned after 28 days.

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Decision last updated: 20 September 2017