Sadath v Transport Accident Commission
[2020] VCC 130
•27 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01276
| SAYED ROMAN SADATH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 9 October 2019 | |
DATE OF JUDGMENT: | 27 February 2020 | |
CASE MAY BE CITED AS: | Sadath v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 130 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – aggravation of existing mental disturbance or disorder – range case – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Katanas v Transport Accident Commission [2016] VSCA 140; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; IfkavShahin Enterprises Pty Ltd [2014] VSCA 8l; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith QC with Mr C O’Sullivan | Zaparas Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr S Scully | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a motor vehicle accident on 11 December 2015 (“the accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“‘serious injury’ means –
(a) serious long-term impairment or loss of a body function … .
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder … .”
4 The application was brought pursuant to both paragraphs (a) and (c) of the definition of “serious injury”. The plaintiff’s case, as put during the hearing of the application, is that by reason of the accident he has suffered the following injuries:
(a) injury to the spine; and
(b) the aggravation of a pre-existing mental disturbance or disorder in the form of depression and anxiety.
5 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is:
“… can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly be described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[1]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
6 It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
7 In relation to an application concerning paragraph (c) of the definition of “serious injury”, the judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of the word “severe”. In that case, without suggesting the use of any particular adjective to mark the distinction, Brooking JA held that the word “severe” as used in the definition, is stronger than the word “serious”.[4] Winneke P agreed with Brooking JA’s reasons and further agreed that the word “severe”, where used in subparagraph (c) of s(17) of the Act, was a word of stronger force than the word “serious”.[5] Phillips JA[6] and Charles JA[7] made comments to similar effect.
[3][1998] 3 VR 833 (“Mobilio”)
[4]Mobilio (supra) at 846
[5](Supra) at 834-5
[6](Supra) at 858
[7](Supra) at 860-861
8 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder are “severe”, I must conclude that those consequences are more than “very considerable” to the plaintiff.[8] In performing this analysis, it is necessary first, to identify and next, to bring to account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgment in accordance with the principles enunciated in Humphries & Anor vPoljak.[9]
[8]See Noonan v State of Victoria [2013] VSCA 289; Mobilio (supra); Katanas v Transport Accident Commission [2016] VSCA 140
[9](Supra) at 140, per Crockett and Southwell JJ
9 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s93(1) of the Act, the relevant mental disturbance or disorder must have arisen out of or due to the transport accident. As set out in s93(17) of the Act, the relevant injury must also be long-term.
10 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
11 The Court must assess whether the injury is “serious” for the purposes of the Act as at the time the application is heard.[10] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[11] The task of assessing the pain and suffering consequences of an injury has been held largely to be a question of impression and value judgment.[12]
[10]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[11]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
12 In determining the application, the Court must give reasons that disclose the path of reasoning in dealing with the evidence and issues raised by the application.[13]
[13]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
13 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[14]
[14]Petkovski v Galletti (supra)
14 Applying the principles set out in Petkovski v Galletti,[15] in an application like this, where it is alleged that the plaintiff had a relevant pre-existing condition, it is the consequences of the aggravation of that injury which must be assessed. To undertake this task, the application must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[16] If I am satisfied that the additional impairment is “serious” or “severe” (as the case may be) and long-term, then the applicant will have demonstrated that he is suffering from a “serious injury” under the Act.[17]
[15](Supra) at 443
[16](Supra) at 444
[17]Supra
15 The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit sworn by Muhammad Musa Ghaffar on 29 May 2019. Mr Ghaffar was required to, and did, attend for cross-examination.
16 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[18] Neither party required any of the medical practitioners or medico-legal experts to attend for cross-examination.
[18]The Plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
17 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and previous injuries
18 The plaintiff was born in Afghanistan in December 1984. He came to Australia as a refugee at the age of fifteen with his family. He is presently thirty-five years of age. He is married with three children.[19]
[19]Ex P1, page (“p”) 6
19 He attended school until just before he came to Australia. He can read and write in his native language, Dari. He could not speak English when he first came to Australia. He attended school in Australia, starting in Year 10, and finished Year 12 at a secondary college in Dandenong. He now can speak and understand English well.[20]
[20]Ex P1, p7
20 After school, he went to Chisholm Institute of TAFE and studied a Diploma of Computer Network Engineering for three years. He then studied a Bachelor of Information Technology and Systems at Monash University in Caulfield. This course went for three or four years and the study was full time. In 2010, the plaintiff began part-time work as a sales manager at Ghan Rugs, a rug store in Dandenong. In 2013, he started studying a Master of Business Management at Swinburne University. He was studying part time at night while working during the day. The study was one night per week. He completed the course in 2017.[21]
[21]Ex P1, p7
21 At the end of 2014, the plaintiff started up his own business, Australian Global Tradings Pty Ltd, trading as “Royal Golden Receptions”. This company was intended to operate a reception centre for weddings and private functions. He intended to open the business in January 2016. For this purpose, he rented a building in Lonsdale Street, Dandenong. He was in the process of fitting this space out when the transport accident occurred.[22]
[22]Ex P1, p7
22 The plaintiff had experienced periods of anxiety and depression prior to the accident and had taken antidepressant medication “for a little while”. He had also been diagnosed with and was receiving treatment for Gastro-oesophageal Reflux Disease (“GORD”) since approximately 2012.[23]
[23]Ex P1, pp7-8
The accident
23 The plaintiff described the accident in the following terms:[24]
[24]Ex P1, p8
“On or around 11 December 2015, at around 10pm on I was driving my cousin’s vehicle. We were travelling to play billiards with my uncle and cousin in the car … .
I was travelling along South Gippsland Freeway at the Pound Road exit. I was doing a right hand turn on to Pound Road, in Hampton Park. It was a green light…I was in the middle of the road, a car came from the intersection and hit my car near to the drivers’ side door. All of the airbags came out and we went into a spin.
I lost consciousness for a time. The other car was on fire. I woke up and there was smoke and airbags. I was able to get out of the car.
The Police and Ambulance were called. I understand that the other driver was fined for travelling through a red light.
… I thought I was ok initially but then I realised that I couldn’t breathe properly and I was in pain. At about 11.30pm my friend drove me directly to Dandenong Hospital … .
… They told me there were no broken bones and sent me home the next day. I was given pain relief medication.
Immediately after the accident, I was in pain in my neck and lower back. I also had pain down my right leg and pain on the left hand side of my back. I went to my General Practitioner, Dr D’Argent, a few weeks later at the Hallam Medical Group. She prescribed me some pain killers and sent me for physiotherapy and hydrotherapy and a CT scan … .”
24 The plaintiff was referred to Professor Richard Bittar, neurosurgeon. He referred the plaintiff for an MRI scan, which showed a right-sided disc protrusion at C5-6 compressing the right C6 nerve root, a minor disc bulge at L2-3 and a left-sided disc bulge at L4-5.[25]
[25]Ex P1, p9
25 After a few months with this pain, the plaintiff started to develop increasing and worsening symptoms of anxiety and depression. He told his general practitioner about this and was referred to see Dr Geoffrey Hogan, psychiatrist.[26]
[26]Ex P1, p9
26 The plaintiff first saw Dr Hogan on 17 February 2017. He diagnosed the plaintiff as suffering from a major depressive illness and described Lovan and Avanza. The plaintiff continued for a time to see Dr Hogan every two weeks and sometimes once a month.[27] He sees Dr Hogan less frequently at present.
[27]Ex P1, p9
27 In March 2017, the plaintiff’s pain in his neck and back was not improving. His general practitioner referred him to see Mr Greg Etherington, spine surgeon. Mr Etherington said that the plaintiff was not suitable for surgery at that point in time.[28]
[28]Ex P1, p9
28 In April 2017, the plaintiff was referred to Dr Angela Chia, pain physician. She prescribed the plaintiff Lyrica and also gave him a cortisone injection into his lower back in September 2017. He experienced a few weeks of relief from this injection, but then the pain returned again.
Evidence of the Plaintiff
Experience of pain and treatment
29 As referred to above, the plaintiff swore three affidavits.
30 In summary, the relevant evidence as to the pain and suffering consequences which the plaintiff said that he experiences as a result of the transport accident, is as follows:
(a)he continues to have pain in his neck and lower to middle back. The pain in his lower back seems to have worsened in the past year;[29]
[29]Ex P1, p16
(b)he has almost constant pain in his lower to middle back and his neck. His neck is slightly improved compared to immediately after the accident, but it still causes him pain. He also gets pain that radiates down his right leg;[30]
[30]Ex P1, p11
(c)the pain in his back is 7 out of 10. Sometimes it can get better or a bit worse. Cold weather makes it feel worse. It also feels worse when he is not able to sleep much, which unfortunately happens a lot. It is hard for him to get comfortable and he is not comfortable when he sits or stands for too long;[31]
[31]Ex P1, p11
(d)he sees his general practitioner every two weeks. She prescribes his medication and monitors his condition;[32]
[32]Ex P1, p10
(e)in 2017, he was referred to Ms Julie Murdoch, psychologist, and saw her every two to three weeks until early 2018;[33]
[33]Ex P1, p9
(f)he takes showers and uses the steam room at the gym, which provides some limited relief.[34] He does hydrotherapy to help with his back pain as well as attending various doctors’ appointments. He continues to see his general practitioner, Dr Ariane D’Argent, every three weeks to get his medication. She also monitors his condition;[35]
[34]Ex P1, p11
[35]Ex P1, pp16-17
(g)he attends hydrotherapy two to three times per week. He does some walking in the pool. He does some classes and goes to the sauna and steam room. He goes for one-and-a-half hours at a time and gets some limited relief from this;[36]
[36]Ex P1, p18
(h)he continues to go to physiotherapy about once per month. If he is having a bad time with his back pain, he goes two to three times per month;[37]
[37]Ex P1, p18
Medication
(i)the plaintiff’s current medication includes Lovan and Zyprexa for his mental health. He takes Lyrica, Panadol Osteo and/or Targin, for pain relief;[38]
[38]Ex P1, pp10 and 31
Activities of daily living
(j)he finds that his wife gets upset and frustrated with him. She tries to understand his limitations but it is hard for her to totally understand. This makes the plaintiff more frustrated and upset too;[39]
[39]Ex P1, p17
(k)since the accident, the plaintiff experiences difficulty sitting or standing for longer than 30 minutes. The pain is always there, but sometimes it is worse. It is hard for him to get comfortable in any one position, which he finds frustrating;[40]
[40]Ex P1, pp11-12
(l)the plaintiff is able to drive although he cannot do long drives. Occasionally he still has flashbacks of the accident. He does not like going to the same area where the accident happened. Sometimes when he is crossing at traffic lights, he gets scared again;[41]
[41]Ex P1, p12
(m)the plaintiff used to play cricket at Narre Warren in a team with friends. They would play indoor soccer and cricket tournaments. The Afghan community would organise the tournaments. The plaintiff is not able to participate in this activity anymore because of neck and back pain. This saddens him, as it was a good social outlet for him. He does not want to socialise with people anymore because of his depression;[42]
[42]Ex P1, p12
(n)the plaintiff used to be able to help with the housework at home, but he is not able to do it anymore. He used to do the gardening. Now he has to pay for people to cut his grass or his cousins will come and do it for him;[43]
[43]Ex P1, p12
(o)the plaintiff does walking and exercises at home. He has put on 6 to 8 kilograms since the accident. Now he eats too much because he is bored and not exercising. There is not much that he can do because he cannot work so he eats a lot more, but it is not enjoyable;[44]
[44]Ex P1, p12
(p)the plaintiff loses his temper more with his wife and children. He gets angry more easily. He gets angry and does not have the patience that he used to. He forgets things because of the medication and also because of the pain. He is not the same person that he used to be. He feels like he has aged ten years in the past two years. He is concerned about his future because he already feels like an old man because of the transport accident;[45]
[45]Ex P1, p13
(q)the plaintiff’s family is not what it used to be. He used to be a good dad, but now he is in pain and cannot give what he used to give to his family. He cannot lift up his kids and he cannot take them to the park. They are still young so he should be active with them like he used to be. He used to be able to run around at the park and be fun, but he is not like this anymore. He does not join in with things because he knows that he will be in pain afterwards;[46]
[46]Ex P1, p13
(r)on the advice of his psychologist, he has attended a few cricket games to try and be involved with the community. He mostly watches and cannot really participate in any of the physical activities;[47]
[47]Ex P1, p18
(s)he feels that the Nabi charity has been very good for him and he wants to be able to give back to the community, but he is limited in what he can do. The cricket club and associated business do not provide any income;[48]
[48]Ex P1, p18
(t)he has tried to play soccer since the accident. He used to enjoy playing soccer with his friends regularly before the accident. Since the accident, he has tried once or twice, but could not play a full game and was in more pain when he went home and was in pain again the next day;[49]
[49]Ex P1, p25
Sleep
(u)the plaintiff’s sleep is not good at all. He sleeps for a few hours and then wakes up early in the morning but he cannot sleep. He wakes up from the pain and then finds it hard to fall back to sleep. It is hard to get comfortable. The tablets that he takes also make him feel dizzy and sleepy, which means it is hard for him to concentrate during the day. He wakes up tired in the morning and does not feel refreshed;[50]
[50]Ex P1, p11
(v)he tries to lie down on the floor. He sleeps on the floor, sometimes on the bed, but mostly on the floor because it helps his back;[51]
[51]Ex P1, p11
Pecuniary disadvantage
(w)since the accident, the plaintiff has not been able to work. At the time of the accident, he was earning approximately $1,100 per fortnight. He was setting up his own reception business for weddings and private functions. It was his plan to open the business in January 2016, but he had his car accident in December 2015, which “derailed things”;[52]
(x)the plaintiff had hired a manager to run the business, but he was needed to oversee it and also to manage it. Due to the accident, he was in a great deal of pain each day and found it hard to concentrate with the drugs that he was taking. He also found it hard to move and to do what was needed for the business. As a result of not being able to manage the business, it was not doing well, and in September 2017, the plaintiff was forced to sell it. He had leased the property until 2025, and had renovated it and spent $400,000 on the business, including the renovations to the leased property. All of this money was lost;[53]
(y)he set up a not-for-profit organisation to help people get involved with cricket with his friend Mohammad Nabi, who is a professional cricketer in Afghanistan. The business and club are registered in his name and also in Mohammad’s name. The plaintiff is called the president, but he has very little to do with the business;[54]
(z)he probably spends less than an hour a week helping out with the not-for‑profit cricket academy. He sometimes sends emails or texts his friends who operate the academy to try to help out;[55]
(aa)he was interviewed for a website called “iamamigrant.org”. The interview took place at some stage in 2017 in relation to his experience as a migrant to Australia. He was asked a number of questions and explained why he was grateful to call Australia home as part of the interview. The website quotes him as saying “I import goods from Turkey, Afghanistan and China”. This is not a direct quote from him. He has never exported any products from Australia and does not recall saying that he currently imported goods. When he worked in the rug shop with his uncle, his uncle was importing goods from Afghanistan, Turkey and China, but that was in the past, before the accident. His uncle closed the rug shop in 2016 or 2017;[56]
(bb)he registered the name “Roman Business Group Pty Ltd” in 2016 at some stage after the accident. It had always been his intention to be a businessman and he thought that this was a good business name. He has never done anything with this business name. It is now deregistered. He has not made any money in connection with this business name;[57]
(cc)he also registered the name “MN7 Sports Pty Ltd” in 2018. His friend, Mr Nabi, asked him to register this name. He did this as a favour for his friend, as he lives in Afghanistan. Nothing has been done with this company;[58]
[52]Ex P1, p10
[53]Ex P1, p10
[54]Ex P1, p18
[55]Ex P1, p24
[56]Ex P1, p25
[57]Ex P1, p25
[58]Ex P1, pp25-26
Mental disturbance or disorder
(dd)his anxiety and depression continues to be very significant and he continues to worry and get upset easily;[59]
(ee)he now sees Ms Stephanie Chu, psychologist, at the Hallam Medical Group. He sees her every month. She advises the plaintiff on how to cope with his anxiety and depression. She has advised him to try not to be isolated and to try to socialise. He gets benefit from seeing his psychologist, but he still finds it very difficult to see beyond his pain and restrictions;[60]
(ff)he continues to see his psychiatrist, Dr Hogan, every month to treat his Major Depressive Disorder. Dr Hogan continues to prescribe the plaintiff medication for his depression. He does not think that it is helping much;[61]
(gg)the plaintiff’s anxiety and depression has worsened since 2018 as he is very frustrated and upset with his injuries. He had lots of plans for his future and wanted to operate his business, but his back pain has made that hard for him;[62]
(hh)the plaintiff’s libido is diminished due to his depression and the pain from which he suffers;[63]
(ii)sometimes the plaintiff gets anxious in crowds. He gets irritable when other people are talking. This did not happen before the accident. Now he prefers just to stay home rather than to go on outings;[64]
(jj)he tries to put on a front for his family and friends about how he is. He does not like to tell them that he is feeling suicidal at times. He feels that he has to try to push through for his family. He posts things on Facebook to try and put on a good front, and tries to take photographs with his friends and family and put them up on Facebook. It makes him feel better than staying at home and not doing anything, but he is far less active than he used to be;[65]
(kk)the plaintiff’s personality is no longer the same. He has suffered from depression and anxiety in the past, but now it is much, much worse. He cries a lot now and is always thinking about bad things. He worries about his future for himself and for his young family. He never thought that his life would be the way that it is, because he was ambitious and he has always wanted to do well by working hard for his family. He is more fragile and his thinking has become worse. He feels worthless and like he is not able to look after his family since the loss of the business due to the transport accident. At times he feels like life is not worth living.[66]
[59]Ex P1, p16
[60]Ex P1, p17
[61]Ex P1, p17
[62]Ex P1, p17
[63]Ex P1, p12
[64]Ex P1, p12
[65]Ex P1, p25
[66]Ex P1, p11
31 Under cross-examination, the plaintiff gave the following evidence:
(a)he completed a Master of Business Management after the transport accident;[67]
[67]Transcript (“T”) 41, Line (“L”) 27-30
(b)when he had the accident, he had two units left to finish on his degree. He tried to finish the units but failed both of them, and then next semester, started again. He passed his Masters because “my family wanted [me] to finish …”;[68]
[68]T42, L2-7
(c)all of his study, including assignments and exams, were completed in English;[69]
[69]T42, L9-27
(d)his studies included subjects concerning computer risk management and information systems, as well as business management;[70]
[70]T43, L2-7
(e)his first affidavit was sworn through an interpreter. The interpreter translated each of the lines one by one in his native language, Dari;[71]
[71]T44-45
(f)the rug shop where he used to work is downstairs from the reception centre that he was leasing. The owner of the building is his uncle, Abbas Saeed;[72]
[72]T45, L23-30
(g)he stopped working for his uncle in the rug shop in about 2016;[73]
[73]T46, L4-6
(h)he was taken to the part of his first affidavit where he had asserted that he had “lost” $400,000 through the sale of his business. His initial explanation for making this assertion in his affidavit was: “Yes, I did say that … when I borrowed money like about $400-500,000 plus my two years my own time that I spent there which getting nothing for the renovation, and so I said about $400,000 I have lost in this business … .”[74] The plaintiff went on to say that the loss of $400,000 was a “minimum” that he will lose in the business “… because now I receive in the past one year calls, messages from the tenant. Now he is leaving the business …”.[75] He agreed that he had not received those communications at the time that he swore his first affidavit. He agreed that the rent had been paid on a monthly basis by the tenant and is up to date.[76] He agreed that at the time that he swore the affidavit in 2018, there had been no money lost through the rent not being paid;[77]
[74]T46, L10-24
[75]T47-48
[76]T48, L3-29
[77]T48, L30-31
(i)he was shown the licence agreement which he signed with the new tenant, Sher and Sons Pty Ltd (“Sher and Sons”), as trustees for the Alam Family Trust. He agreed that the licence agreement contained recitals which included the words “The licensor has developed and established a business … with goodwill and a customer base and systems for ongoing repeat business”;[78]
[78]T50, L2-21
(j)he agreed that the business name that had been licensed was “Royal Golden Receptions” which was his business name when he was running the reception centre;[79]
[79]T51, L1-5
(k)he agreed that the licence consisted of two terms of four years each. He agreed that in respect of the first term of four years, he was paid the sum of $456,000. Pursuant to the licence agreement, that money had to be paid on or before 1 September 2017. He agreed that he received this money. He agreed that he paid most of the money that he had borrowed from his relatives back with this money;[80]
[80]T52, L1-19
(l)he said that this money was in addition to the rent which is also being paid by the tenant;[81]
[81]T38, L8-26
(m)he agreed that under the licence fee he will be paid $240,000 in respect of the second four-year term. He qualified that by raising again his doubts that the tenant will honour the agreement;[82]
[82]T53, L1-23
(n)he denied that he had done any work for the new reception business after the transfer of the lease. He said: “Now sometimes when I go to Dandenong I visit them … because the Chemist Warehouse, I get my medication from Dandenong Chemist Warehouse … .” He said that he “just drops into his old business to say hello … because this man is Afghani man and we know each other and we say hi”;[83]
[83]T58-59
(o)he denied that he had been to the reception centre to help out the new owners: “… physically I haven’t helped. But if he asks me some question or something, yes, I have … but it’s his business and he’s running it;”[84]
[84]T59, L14-21
(p)he agreed that he had not actually sold the business to the new tenant but had just given them a licence to use the business name and a transfer of the lease;[85]
[85]T60, L28-31
(q)he agreed that he had the lease and licence documents at the time that he swore his first affidavit in 2018;[86]
[86]T75-76
(r)he said that he did not make any reference to these documents or their content because he had never been asked to put that detail in his statement;[87]
[87]T76, L19-24
(s)he said that he did not make reference to the fact that he had received $456,000 from the licensing of his business name because “I haven’t been asked”;[88]
[88]T77, L3-5
(t)he said that he described himself as selling his business even though it has not been sold because ─
“… It’s not like I keep the business another five or 10 years after this business. So it’s like for me it’s sold, like my lease is finished in 25 and his lease is finished in 25. So after 2025 I have no business … .”
(u)he agreed that the landlord is his uncle and that there is nothing stopping him from taking another lease after 2025 if he wants to;[89]
[89]T77, L6-21
(v)he agreed that the money that he was paid under the licence agreement was for the use of the name and the right to run the business and that the licence agreement also refers to the “goodwill” associated with the business. He also agreed that the licence referred to the fact that the licensee was getting “value for money” because they were purchasing an operating business that had goodwill at that time;[90]
[90]T77, L24-31
(w)when pressed about why he had not disclosed in his affidavits the receipt of the $456,000 in relation to the business, he said:
“If I wanted to lie, it means like I have lied. It’s not [a] lie, just misunderstanding … My brain, my everything is – every day is not the same and every time, like, I can’t remember things. So if I wanted to lie, then I can – whatever I have to write this, anything can be done … .”[91]
[91]T78-79
(x)when it was put outright to the plaintiff that the content of his affidavit insofar as it omitted this detail was a lie, the plaintiff replied: “It’s a misunderstanding;”[92]
[92]T78-79
(y)when asked whether or not he had fixed up the misunderstanding in his subsequent two affidavits, he replied:
“The question hadn’t been asked and I haven’t gone through that …There was no question, so I haven’t said anything … .”[93]
[93]T79, L6-16
(z)he said that he has several uncles running businesses in Turkey and Afghanistan, including exporting Afghani dry nuts to India and other countries. He said that the businessmen fly in and out of Turkey and Afghanistan to conduct their businesses. He agreed that he has visited these businessmen in Afghanistan when he has travelled there from Australia. He denied that he had done any work for them while he was there;[94]
[94]T61-63
(aa)he said that apart from the work that he did in the reception centre, he had not done any work for payment since the transport accident;[95]
[95]T63, L11-15
(bb)he was shown some images from the “i am a migrant” webpage. He agreed that this included a photograph of him. He agreed that he had shared this entry on his Facebook page. It was put to him that he looked very happy in the photograph even though he has “got this terrible depression”. To that, he responded: “Well, should I cry in front of the photo?”[96]
[96]T64, L4-22
(cc)he said that he had gone to the “i am a migrant” program in Canberra with his cousins and friends because “I was at home depressed … then they asked me if I want to go and I said ‘Okay, I will go there’”;[97]
[97]T65, L21-30
(dd)he said that they went to Canberra by car. He said that they had breaks while they were driving. It was a nine or ten-hour drive;[98]
[98]T66, L1-11
(ee)he agreed that the text of the website which was attributed as a quote to him was mostly correct, but he said that the wording was put better than he could have put it. He agreed that the information was correct. He agreed that he had said to the interviewer:
“Today I have higher education degrees and own a successful business in Australia. I enjoy contributing to this country in the business field. I import goods from Turkey, Afghanistan and China and through my business I pay tax and provide employment for people. I am also starting to export Australian products to other countries. I am a hardworking person and will continue to expand my business in many ways.”
He said that the wording, as it is put on the website, was not exactly the same words as he used, and although he had said those things, he had in fact never exported anything since being in Australia. He denied having said that he exported Australian products to the interviewer. He agreed that he had said to the interviewer that he used to bring in goods from Turkey, Afghanistan and China;[99]
[99]T68, L1-31
(ff)he said that the interview was done in 2017. He said that he told them that he “used to” import goods from Turkey, China and Afghanistan, but that is not what they put in the quote. He said “It’s not like I am importing right now anything from Turkey, Australia or China, nothing currently. I have done nothing. But it was just an interview, verbal interview;”[100]
[100]T69, L1-26
(gg)he agreed that he had shared the page on his Facebook page even though it contained inaccurate information;[101]
[101]T69-70
(hh)he agreed that he had “let it go out on Facebook that [he] owned a successful business in Australia and … imported goods from Turkey, Afghanistan and China”. It was put to him that if what he was saying now was correct, then he knew at that time that what was on the website was wrong. To this he replied: “Well, nothing I could do at the time about it;”[102]
[102]T70, L11-16
(ii)when asked why he would have said to the interviewer that he imported goods from Turkey, Afghanistan and China when he never ran an import business, he said:
“In the interview, because of my medication and depression, … I’m not a normal person like what you are thinking … I just want myself to be … show like a businessman and successful and other people can read my comments and my story … this is not a lie.”[103]
[103]T72, L1-25
(jj)by way of further explanation, the plaintiff said that he could not tell his relatives, friends and community the truth about his work situation because, essentially, he was embarrassed about his injuries:
“I try most of the times that I exhibit myself to be such a healthy person, that as a matter of fact I’m suffering. I’m in pain and suffering. But if people do find out about me, then my sufferings and pain will aggravate … .”[104]
[104]T74, L15-19
(kk)when asked whether or not what he was talking about was pride and needing to be seen to be successful in his community, the plaintiff replied:
“That’s right. Whatever go inside me or in me, I always keep it to myself … Even my close relative, I can’t tell them my feeling, because I don’t want to hurt or I don’t want to put myself more down. So I always try my best … I used to be very active in the community, but since my accident happened I could not … but still I try to engage in the community to keep myself survive, because a few times thoughts come in my mind to do something in your life. I have cried many, many times myself … but I didn’t come to Australia that I’m crying in front of these people … .”[105]
[105]T74-75
(ll)he agreed that when he worked in the rug shop for his uncle, he was the manager of the rug shop and that he used to sometimes travel on behalf of his uncle. He denied that he was the one running the business. When asked why in the quote on the website he had been quoted as saying “Through my business I pay tax and provide employment for people”, he replied:
“It’s like I was acting almost like on behalf of my uncle, like, because we – as my uncle, a relative, I was always feeling like it’s my own business. But in fact it’s not like, but I always feel like it’s my own business so I give this interview as it’s my own business. So through these rugs, selling rugs here, goods here, pay tax sort of things, yes … .”[106]
[106]T80, L6-28
(mm)he said that following the transport accident, he did not go back to work at Ghan Rugs. He agreed that the reason that he did not ever go back there was because that business had closed down;[107]
[107]T82-83
(nn)he was shown a number of departing and incoming passenger cards relating to his travel to and from Australia. He agreed that it was his handwriting on those documents. He agreed that on numerous of those documents, he had described his occupation as “manager” or “self-employed”. He also agreed that in at least one of the documents, he had described his main reason for overseas travel as being “business”;[108]
[108]T84-85
(oo)he agreed that on 11 April 2016, he incorporated a business called “Roman Business Group”;[109]
[109]T85, L7-11
(pp)he was asked what he was planning to do with this business, and replied “I liked the name and I just wanted to reserve the name Roman Business Group”;[110]
[110]T85, L27-29
(qq)he denied that he had in fact travelled for business, despite what he had put on these travel forms. In relation to this, he said:
“It wasn’t a business … I was at home very depressed and staying at home all the time and then my uncle, he bought concrete machinery, some product in Malaysia and he going to send it to Afghanistan, now I remember, and then my grandma or my wife said, ‘Oh, he’s very depressed, stressed’ and he says, ‘Oh, how about if he go to Malaysia. The company is sending us these goods. You just go there and we give you your ticket, we pay your expense to just give you some holiday or some – get you out of the home’, and I said ‘Okay’ and then I went to Malaysia on this trip, but nothing more than that … .”[111]
[111]T86, L7-22
(rr)when asked why he wrote “business” on the form, he replied
“Well … even now I travel and I came back last week or this week, every time when I put immigration form, like, businessman, self-employment, manager. So, I don’t know what to put myself, as a TAC or pension, but I use these three words, businessman, business, self-employment, manager … .”[112]
[112]T86, L23-28
(sic)
(ss)he denied that he went to Malaysia to organise the shipping of machinery that made concrete bricks:
“No, it’s been done before that. I haven’t organised that, the company … I have visit the company only, but the company already deal in everything … My uncle give me the company … They just want to get me out of the home with all this depression. They say ‘I can give you this company name and just go there and visit this company, but everything is – we have done it from our end,’ and I just went … .”[113]
[113]T87, L2-29
(sic)
(tt)when asked what was the point of going to visit the company if he had no role to play in what was going to happen next with the machinery, he replied:
“It was like a holiday, plus I met with this company … if you want, you can call them or give them or everything will be there.”[114]
[114]T88, L8-19
(sic)
(uu)he agreed that he had been to all of the countries that he had mentioned in the “i am a migrant” interview. When asked whether he “just happened” to have gone to those places, he replied “Yes, used to”;[115]
[115]T89, L7-25
(vv)he agreed that he had been to China twice:
“Once I went there … There was a … homeware and rugs business exhibition, and from Afghanistan my other uncle, he was sending rugs and his people to attend these exhibition, the exhibition in China, and so everything they say it was provided over there … and he just told me ‘If you want, we could do your ticket expense. You can go and those guys are coming from Afghanistan as well. There is a few days exhibition. You just go to visit there’ and I went … .”[116]
[116]T90, L6-24
(sic)
(ww)he denied that he was involved in any sales of rugs while in China:
“The exhibition was for a week or five days or three days; I don’t know. But I went visit a few times in that exhibition and I was hang around, walk around … .”[117]
[117]T91, L1-20
(sic)
(xx)in relation to the second occasion on which he visited China, when asked whether that was in relation to another rug exhibition, he replied “I don’t know. I can’t remember;”[118]
[118]T91-92
(yy)shortly afterwards during cross-examination, he admitted that he did go to China for a second time in 2018 in relation to a rug exhibition:
“Well, I went there. But I haven’t, like, physically helped. But I was there in the stall … .”[119]
[119]T92, L11-14
(zz)he agreed that if somebody spoke to him while he was at the exhibition and asked him about the rugs, he would respond and tell them about the rugs;[120]
[120]T92, L15-29
(aaa)ultimately, he said in relation to these exhibitions “I went a day, for an hour or two. But most of the time I was in hotel and going seeing around.” When asked if this was a reference to him sight-seeing, he agreed that this was true;[121]
[121]T93, L1-9
(bbb)in relation to the travel document for this particular trip, he agreed that he had put down that his main reason for travel was “exhibition”;[122]
[122]T93, L13-22
(ccc)when it was put to him that on other occasions he had been happy to mark on the travel documents that he was visiting friends or relatives or on a holiday, he said:
“Yes, it was exhibition and I just went for the exhibition. But it wasn’t my responsibility or I wasn’t responsible person to lead or to run the whole exhibition … yes, I was helping … I know about rugs … .”[123]
[123]T92-94
(sic)
(ddd)when it was suggested to the plaintiff that since the accident he had engaged in a lot of travel for a man who says that he has severe back pain, he replied:
“Well, I know it was very painful for me. Even all the time it’s painful for me, and the plane is painful. But I walk and stretch … but my staying and being here, it’s making me more depressed and more stressed ... And all the time, like, uncles, grandma … most of the family, like, they were telling me, ‘Come to Afghanistan because you are so much stressed and depressed’. So that’s why most of the travel has happened … .”[124]
[124]T98, L4-20
(sic)
(eee)he said that he had engaged in this overseas travel “with difficulties”;
(fff)in relation to the consequences of his injuries, he confirmed that he “sometimes” feels anxious in crowds. In relation to the fact that he has told some doctors that he does not socialise as much as he used to, he said that his psychologist has told him that he must socialise and not stay home too much. He confirmed that now he does try to socialise and talk to people, but it depends on his mood;[125]
[125]T118-119
(ggg)he said that Mr Nabi, with whom he began a not-for-profit cricket organisation to train children in how to play cricket, was his friend and he has known him for a long time. He said that it was Mr Nabi’s idea to set up the cricket academy and he just told Mr Nabi that it was a good idea. He said that he agreed to help Mr Nabi set up the academy. He agreed that he had become the president of the academy, despite what he says are continual pains in his back and the depression from which he suffers;[126]
[126]T120-121
(hhh)he agreed that the photographs contained within the Defendant’s Court Book depicted him as him being happy and smiling with a number of people around him. He agreed that one of the photographs depicted him walking along at the opening of the cricket academy with the ambassador of Afghanistan. He agreed that at this opening, there were Members of Parliament present, as well as the Mayor of Casey, and that a number of members of the “Renegade” cricket team had also attended the opening of the cricket academy;[127]
[127]T121-123
(iii)it was put to him that the cricket academy has not engaged in much activity because he has spent most of his time travelling overseas. He replied “… I have no choice, I have to get my family and leave Australia and go and live in Turkey for some times”;[128]
[128]T125, L6-23
(jjj)he said that he is getting financial support from his family while he lives overseas;[129]
[129]T125-126
(kkk)he said that he had in the past applied for unemployment benefits but “I did try, I call one, two times. They put me on hold. There was a lot of form. Then I said, ‘I can’t do it’.” He said that he was lucky to have family that can help. He denied that in return for his family’s help, he helps them out with their businesses:
“Not really. Once and a while. But it was in my favour as well to get me out of this distress and out of this problem. And, yes, I did guide them, I did help them … .”[130]
[130]T126, L8-22
(sic)
(lll)he agreed that he was named as the secretary and a shareholder of a company by the name of MN7 Sports Pty Ltd. He agreed that he was a shareholder, along with Mr Nabi. He agreed that the address listed for the company was Level 1, 255 Lonsdale Street, Dandenong. He agreed that this address was listed as the company’s principal place of business. He agreed that that was also the address of the reception centre. He said that he had asked the tenant if he could use that address in case he received any letters. When asked why he could not have used the address of the place where he was then living, he replied:
“At that time, to be honest … I thought maybe for the business I need a business address. So I put that address there of the business, his address … .”[131]
[131]T127, L5-28
(mmm)he agreed that the children who participate in the academy pay “membership fees”. He denied that the company, MN7 Pty Ltd, had an interest in the academy: “No, the academy is different. Academy is a not‑for‑profit.” When asked what the company, MN7 Pty Ltd, was set up for, he said that Mr Nabi wanted to “register and reserve this name”;[132]
[132]T128-129
(nnn)he said that Mr Nabi was the one who paid the fees to set up the company. He agreed that Mr Nabi had paid all of the expenses, but that the plaintiff had received most of the shares;[133]
[133]T129, L26-31
(ooo)he said that neither MN7 Pty Ltd nor Roman Business Group were corporate entities that had been used for any purpose. He denied that both of these companies would be available to him to use for business purposes once the case was finished:
“Like, nothing, I don’t want to say anything, but it’s – if I’m lying, like, why should I register this this year? Why should I go to open Nabi academy this year? I could do it next year. When my case is finished I could open all these things … .”[134]
[134]T130-131
(sic)
(ppp) documents within the Defendant’s Court Book indicated that the company, MN7 Pty Ltd, had had a business name of “MN7 International Cricket Academy” added to a list of business names which that company owned. When asked why this occurred, the plaintiff replied: “It’s just registered. Nothing. Just registered the name on that day.”[135] He agreed that he and Mr Nabi had given instructions to the solicitor to add that business name. He was shown an entry which indicated another business name, “Nabi International Cricket Academy,” had also been added. He acknowledged that this was true. He said that both he and Mr Nabi had added that name to the business names owned by MN7 Pty Ltd. He said that, later, Mr Nabi had decided “We want to do it as not making any profit off it … I want to give back. Then he registered the same Nabi International Cricket Academy in Consumer Affair, that certificate.”[136] He maintained that despite the entry which had been shown to him, the Nabi International Cricket Academy had nothing to do with MN7 Pty Ltd, except “at the beginning”;[137]
(qqq)he agreed that he attended a vocational assessor in 2017 appointed by the Transport Accident Commission, and that he recalled that his general practitioner, Dr D’Argent, had been noted as being “very supportive of the vocational options recommended and of our vocational program”. She emphasised that Mr Sadath should aim to alternate his posture at random in order to relieve any discomfort;[138]
(rrr)he agreed that he had told his general practitioner that he would like to give work a try: “Why not?” He said that he did try, but no one gave him a job that he was capable of. He went on to say that he does not know what job he could do because of his pain.[139] He said that he could not remember applying for any jobs and he did not think that he had been for any interview: “As I said, it’s been a while. I cannot remember;”[140]
(sss)he agreed that he had told his psychiatrist, Dr Hogan, that he had no significant medical history and no past history of psychiatric disorder.[141] When it was put to him that this history was incorrect, he said: “Well, I never been in depression … but as I told him … I took depression tablet just for sometimes, but nothing serious;”[142]
(ttt)he agreed that medical notes from the Hallam Family Practice disclosed an extensive history of psychological symptoms such as depression; headaches; low energy; feeling drained. He agreed that he had also been prescribed antidepressant medication over a number of years in the past;[143]
(uuu)in response to extensive questioning on this issue, the plaintiff continued to assert that he did not have a psychiatric history, preferring to attribute the psychological symptoms which were recorded in the Hallam Family Practice notes as being associated with the birth of two of his children, and also difficulties with his university studies;[144]
(vvv)he agreed that he remains involved with an organisation called “One Vision Aid”. He agreed that he is listed as being a member under the heading “Our volunteers”. He acknowledged that a friend of his called Nadeem Azimi is the president of that organisation. He described it as “a group of guys and they are helping people in Afghanistan and Somalia here, homeless, there’s some activity they do … as a volunteer, … I have attended some … meetings;”[145]
(www)he agreed that a Facebook entry in the Defendant’s Court Book from Nadeem Azimi’s Facebook page showed a function taking place for One Vision Aid at the plaintiff’s reception centre in September 2016. He agreed that he had been at the reception for that function on that date;[146]
(xxx)he was asked about a government record for ABN 361 944 06305, an entity named “Australian Relief and Development Organisation Inc”. He agreed that he knew the name of that organisation. He said it was a not‑for‑profit organisation organised by a group of friends. He said that while the name was registered, nothing has been happening – “no activity, no program, no fundraising or no community engagement, nothing.”[147] He agreed that the organisation had been registered for the purpose of engaging in relief and development activities. He said that he was not sure whether or not that ABN was still registered. When it was pointed out to him that the ABN was still registered, he asserted that he did not know that it was active. He said he could not remember who registered it, whether it was him or his friend.[148]
[135]T132-133
[136]T133, L10-24
[137]T133, L25-29
[138]T134-135
[139]T135, L1-28
[140]T136, L1-10
[141]T138-139
[142]T139, L20-26
[143]T140-149
[144]See for example T141, T143, T144, T145, T147, T148 and T149
[145]T156, L14-28
[146]T157-158
[147]T158-159
[148]T159, L1-22
Post transport accident statement given by the Plaintiff
32 On 17 March 2016, the plaintiff was interviewed in the presence of his solicitor by an investigator from the Transport Accident Commission. As a result, a six-page statement was produced and signed by the plaintiff. In that statement, by his signature he acknowledged that he had read the statement and had nothing to add. He also acknowledged that the statement was made of his own free will and was true and correct to the best of his knowledge and belief.
33 In that statement, the plaintiff gave the following evidence:
(a) he was then self employed running the reception business.[149] At the time of the transport accident, he was also working at Ghan Rugs, earning approximately $1,900 per fortnight.[150] It was not clear from the statement whether the plaintiff continued to work at Ghan Rugs at the time the statement was given. However, I note that the investigator’s report states that Ghan Rugs was still operating at that time.[151] I also note that in his statement, the plaintiff describes himself in the present tense as having “an employment contract with Ghan Rugs”. He described his role as “a sales manager” and said that he “was responsible for the whole shop”;[152]
[149]Ex D1, p65
[150]Ex D1, p64
[151]Ex D1, p57
[152]Ex D1, p63
(b) he is the employer/manager for the company which operates the business, AGT Pty Ltd. His role is generally to check on the business. He is not hands on;[153]
[153]Ex D1, p65
(c) at that time he had one permanent employee, who is the general manager. That person’s name is Aaron Noorzia. Mr Noorzia’s role is to be responsible for the kitchen, organising the functions, calling the waiters and preparing for an event;
(d) the plaintiff does not do any manual handling or have any duties other than just checking that the business is running as he wants it to;[154]
[154]Ex D1, p65
(e) when the reception centre has a function, they have up to ten to fifteen people working on a casual basis. At the time of giving this statement, the plaintiff was not yet receiving an income from AGT “as we only just started early this year”. They had one function the week before he gave the statement and there was another function booked for the week following when he gave a statement. He did not go to the function the week before, but did check things at the reception centre before it happened, to make sure everything was all right. He just had a verbal discussion with the manager and then left.[155]
(f) the manager is employed from Monday to Saturday, 9.00am to 5.00pm.[156]
[155]Ex D1, p65
[156]Ex D1, p66
34 I note that the content of this statement differs from the evidence which the plaintiff gave to this Court, both in his affidavits and during his viva voce evidence. In particular, I note that at the time which the plaintiff gave this statement, he had not ceased work at all, but was still working at least at the reception centre. The rug shop was in the process of closing down, but at that time, was still operating. Further, at that time in the reception centre, a manager was employed on full-time hours. From the plaintiff’s account to the investigator, this appears to be part of the usual and necessary business operation of the reception centre at that time. The plaintiff’s role at the reception centre was not hands on and did not involve any manual handling. He could come and go as he pleased. He did not attend the one function that had occurred at the reception centre at the time of giving his statement. His role as the employer and director of AGT Pty Ltd was only to oversee operations at the reception centre.
Evidence of lay witnesses for the Plaintiff
35 As referred to above, the plaintiff also relied upon an affidavit sworn by Muhammad Musa Ghaffar. Mr Ghaffar was cross-examined. In summary, the evidence given by Mr Ghaffar was as follows:
(a) he has known the plaintiff for the last seven years, including for about one-and-a-half years before the transport accident;[157]
[157]Ex P1, p20
(b) before the transport accident, he would see the plaintiff once or twice per week. They would catch up at cricket, snooker and soccer, which they used to play with a group of friends;[158]
[158]Ex P1, p 21
(c) the last time he saw the plaintiff was a couple of weeks before the hearing. He caught up with the plaintiff and another friend for dinner in Dandenong;[159]
[159]T112, L11-18
(d) he understands that the transport accident was a traumatic experience for the plaintiff;[160]
[160]Ex P1, p21
(e) since the transport accident, the plaintiff does not socialise as much. He has not seen the plaintiff play cricket or soccer since the transport accident;[161]
[161]Ex P1, p21
(f) he knows that the plaintiff struggles a lot with his back. He recently travelled to Afghanistan with the plaintiff and had to help to carry the plaintiff’s luggage. He also noticed while they were away that the plaintiff was “struggling to get up”;[162]
[162]Ex P1, p21
(g) the plaintiff seems depressed and is stressed a lot of the time. He can see, when he is talking to the plaintiff, that he is not the same person anymore, in that he is not as social. He has also noticed that the plaintiff is not as active with his young children;[163]
[163]Ex P1, pp21-22
(h) Mr Ghaffar is also a member of the Nabi Cricket Academy. He helped the plaintiff by giving him advice about what to do to initiate an academy and what would be required generally;[164]
[164]T113, L4-31
(i) because of the plaintiff’s health issues after the launch of the academy, nothing much has happened since then;[165]
[165]T114, L3-18
(j) the plaintiff sometimes came to training, but he did not train, he would just come for about half-an-hour to have a look and then leave;[166]
[166]T114, L27-31
(k) sometimes the plaintiff would say that he could not come to the Academy because of his bad back;[167]
[167]T115, L3-8
(l) when they were travelling, he helped the plaintiff with both his carry-on luggage and his checked luggage. After they arrived in Kabul, they stayed the night and then they travelled together in a taxi to Jalalabad. The taxi trip took two-and-a-half or three hours;[168]
(m) he stayed in Jalalabad with the plaintiff for ten days. The plaintiff did not do any business while they were there.[169]
[168]T116, L1-31
[169]T117, L2-16
The medical evidence
36 There were numerous medical reports contained in the tendered material.
37 Both sides filed reports from medico-legal experts. A précis of the relevant medical material is set out below.
Pre-accident presentation
38 Relevant medical records in the Defendant’s Court Book address the plaintiff’s pre-accident presentation.[170] From those records, the following matters are evident:
(a)at the time of the transport accident, the plaintiff already suffered from depression and had been treated for a number of years for that condition;[171]
(b)prior to the transport accident, the plaintiff suffered from a previous Major Depressive Disorder. In his report dated 25 August 2019, Dr Justin Lewis, consultant psychiatrist, noted that this condition was “well controlled and stable at the time of the transport accident,”[172] and that his “pre-existing Major Depressive Disorder [had] fully resolved, and … [the plaintiff] denied any predisposition toward depressive symptoms”;[173] and
(c)however, an analysis of the records of the Hallam Family Practice demonstrates that between at least 2 September 2010 and 27 October 2015, the plaintiff had regularly complained of symptoms arising from depression, including lethargy, irritability, headaches, feeling sad and low, “anhedonia ++,”[174] that he “used to enjoy time with family,” poor motivation, anxiety,[175] stress, “angry more easily,” occasional insomnia, “anxiety ++,”[176] “not enjoying anything,” poor appetite, “always tired,” poor concentration,[177] feeling tired, weak, headaches, feeling sad and low most of the time,[178] suffering from headaches, low energy and “feels drained”.[179] It is also apparent that from at least July 2011, the plaintiff’s various general practitioners discussed referring him to a psychologist, although the plaintiff is recorded on numerous occasions as “not keen at present”.[180] The plaintiff had been prescribed Avanza and Pristiq in the past. Between September 2010 and October 2015, he was prescribed Sertraline. The last prescription of Sertraline was 30 tablets on 27 October 2015.[181]
[170]Ex D1, pp11-34
[171]See report of Dr Greg Nutting, consultant orthopaedic surgeon, 29 August 2019; Ex D1, p18
[172]Ex D1, p32
[173]Ex D1, p34
[174]Anhedonia is an inability to feel pleasure
[175]Ex D1, pp141, 143
[176]Ex D1, p144
[177]Ex D1, p145
[178]Ex D1, p153
[179]Ex D1, p155
[180]Ex D1, p143, 144, 145
[181]Ex D1, p155
Post-accident presentation
The Plaintiff’s medical reports
Spine injury
39 Following the accident, the plaintiff saw his general practitioner, Dr Ariane D’Argent. Dr D’Argent has provided numerous reports in relation to the plaintiff, the most recent of which is dated 2 October 2019. Dr D’Argent reported that the imaging revealed the following injuries which the plaintiff suffered in the transport accident:
(a)C5-C6 disc bulging with bilateral degenerative changes;
(b)right-sided disc protrusion at C5-C6 compressing the right C6 nerve root;
(c)minor disc bulge at L2-L3 with left-sided disc bulge at L4-L5.[182]
[182]Ex P1, p31
40 Dr D’Argent noted that the plaintiff “denied any past history of neck or back injury or pain”. She thought that his symptomatology was “consistent with the injuries sustained in the car accident”.[183] In Dr D’Argent’s opinion, the plaintiff was, at that time, “fully incapacitated for his employment due to the injuries sustained in the car accident …”.[184]
[183]Ex P1, p31
[184]Ex P1, p31
41 In February 2017, the plaintiff saw Professor Richard Bittar, consultant neurosurgeon. In a report dated 24 June 2018, Professor Bittar diagnosed the plaintiff as suffering from aggravation of cervical spondylosis and aggravation of lumbar spondylosis. The plaintiff told Professor Bittar in February 2017, that “his neck pain was improving” and that “his main issue was lower back pain”.[185] Professor Bittar thought that there is “a direct relationship between the transport accident and the diagnosed conditions”.[186] Professor Bittar said that at the time of his review in February 2017, the plaintiff had “not worked since late January 2017,”[187] and that the injuries sustained by the plaintiff in the transport accident had rendered the plaintiff “totally incapacitated for work”.[188] However, Professor Bittar specifically noted that “I am unaware of his conditions since then and cannot comment on his current work capacity”.[189] Professor Bittar was unable to comment on how the plaintiff’s activities of daily living and quality of life were presently affected by the injuries sustained in the transport accident.[190]
[185]Ex P1, p34
[186]Ex P1, p35
[187]Ex P1, p34
[188]Ex P1, p36
[189]Ex P1, p36
[190]Ex P1, p36
42 Dr Angela Chia, pain specialist, provided a report dated 5 September 2018, in which she noted that the plaintiff had no history of pre-existing or non-accident related conditions. She has been seeing the plaintiff regularly for treatment, since the transport accident. Upon examination, Dr Chia noted that the range of movement in the plaintiff’s cervical spine was “not [markedly] limited”.[191] She diagnosed the plaintiff as suffering from “Musculoskeletal low back pain with R radicular pain”.[192] Dr Chia reported that the plaintiff had “received [an] epidural injection R L4 with good results” and that “nerve root impingement is a concurrent radiological diagnosis after the injury. His pain symptoms were immediately after the injury. Despite [the fact that] there is no evidence of the accident causing the impingement … [c]linically [the] pain started after the injury and is typical … [of] many cases.”[193] Dr Chia said that she believed that the plaintiff’s “injury and severe low back pain had significantly affected his function to work in his restaurant business which requires prolonged standing and sitting which he was unable to perform when he saw her in late 2017”.[194] In addition, Dr Chia reported that the plaintiff’s “functioning was significantly affected, particularly his mood. He required antidepressants and psychiatrist follow up after the injury to treat his depression. [He] was unable to work and participate in leisure activities. Hence … [the plaintiff’s] quality of life was reduced after the injury.”[195] Dr Chia suggested that the plaintiff would benefit from multimodal pain management with physiotherapy and psychological input to help with his pain, depression and rehabilitation.[196]
[191]Ex P1, p37
[192]Ex P1, p38
[193]Ex P1, p38
[194]Ex P1, p38
[195]Ex P1, p38
[196]Ex P1, p38
43 The plaintiff saw Professor Peter Teddy, neurosurgeon, for medico-legal purposes on 31 January 2018. Professor Teddy provided a joint report addressed to both parties, dated 27 March 2018. In terms of pain, Professor Teddy reported the following matters:
“On examination … he had generally a full range of neck movements with mild pain at the extremes of movement in all directions. He had a full range of back movements and could bend to touch mid-shins … .”[197]
[197]Ex P1, p73
44 In his report, Professor Teddy noted that it appeared that the plaintiff had become depressed. He recommended that the plaintiff remain off opiate medication as far as possible and continue treatment along the lines of well monitored and managed physical therapies.[198] He said that two-and-a-half years after the accident, the plaintiff “remains very limited in terms of daily activities,” and expressed the opinion that the plaintiff had “developed a chronic pain syndrome”.[199] In Professor Teddy’s opinion, advice “needs to be obtained” from an expert psychologist or psychiatrist. He commented that “a concerted effort needs to be made to return the plaintiff to a useful working capacity of which he should be capable”.[200] Professor Teddy concluded that the plaintiff’s condition has stabilised and that his period of incapacity “will depend upon his progress and response to treatment ...”.[201]
[198]Ex P1, p75
[199]Ex P1, p75
[200]Ex P1. p75
[201]Ex P1, p76
45 Mr Greg Etherington, spine surgeon, saw the plaintiff on two occasions after the transport accident, the last date being on 23 March 2017. In his latest report dated 4 June 2018, Mr Etherington expressed the view that the plaintiff suffered from an “exacerbation of previously asymptomatic degenerative changes in the lumbar and cervical spine, especially at L3/4 [and] L2/3”.[202] Mr Etherington was unable to comment on how the plaintiff’s injuries would impact his work capacity as “I did not record what sort of work [the plaintiff] does”. However, he noted that in 2017, the plaintiff’s reported symptoms “made prolonged sitting and standing difficult, and walking around also uncomfortable … which would make most types of work and other activities uncomfortable”.[203]
[202]Ex P1, p87
[203]Ex P1, p87
Mental disturbance or disorder
46 The plaintiff saw Dr Geoffrey Hogan, consultant psychiatrist, for treatment on a number of occasions. Dr Hogan provided numerous reports in relation to the plaintiff, the most recent of which is dated 14 April 2019. In a report dated 19 March 2018, Dr Hogan noted that the plaintiff told him that he had “no past history of psychiatric disorder”.[204] He noted that the plaintiff’s insomnia was in the form of “[multiple] broken sleep with nocturnal ruminations”.[205] He was prescribed Zyprexa at night “as an antidepressant adjunct”.
[204]Ex P1, p42
[205]Ex P1, p44
47 In his report dated 14 April 2019, Dr Hogan reported that on 15 October 2018, the plaintiff told him that “his back pain was now somewhat easier with warmer weather, but quite variable still”.[206] His “sleep was ‘not bad’ although somewhat broken”.[207] The plaintiff also told Dr Hogan that “he was more socially active than last year. He was able to engage more with those he met. Sometimes he was averse to being in a crowd.”[208] Dr Hogan noted that when he saw the plaintiff on 3 April 2019, he reported that his low back pain had recently been worse. His sleep was broken and he experienced nocturnal ruminations. There had been a small weight gain as he was largely inactive. He went out with friends a little but “did not enjoy it”. Concentration and memory “remained significantly impaired”.[209] He was depressed for part of every day. The depth of his depression was variable.[210] In Dr Hogan’s opinion, the plaintiff’s symptoms precluded any employment at that time.[211]
[206]Ex P1, p49
[207]Ex P1, p50
[208]Ex P1, p50
[209]Ex P1, p50
[210]Ex P1, p50
[211]Ex P1, p51
48 The plaintiff has been reviewed on two occasions by Dr Brendan Hayman, consultant psychiatrist, for medico-legal purposes. The plaintiff reported that he had some prior psychiatric history in that “[a]pproximately 10 years ago he saw a counsellor/psychologist in the setting of adjustment issues. He had not been able to bring some of his family out from Afghanistan. In addition his son was born premature at Monash Medical Centre at 25 weeks of age.”[212] He told Dr Hayman that “he does not believe he took any psychotropic medication” and that “his issues abated with treatment”.[213]
[212]Ex P1, p54
[213]Ex P1, p54
49 In Dr Hayman’s latest report dated 6 August 2019, he diagnosed the plaintiff as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood. He thought that the features of traumatisation which had initially been present, had lessened.[214] Dr Hayman reported that the plaintiff’s “main themes relate to preoccupation with pain and his overall plight. There is a focus on the loss of his dream and vocational future. He tries his best to get out, but is limited largely by pain.”[215] In relation to pain, Dr Hayman noted that the plaintiff told him in February 2018, that “his neck pain has improved. He continues to have some but less than before”.[216] Dr Hayman was of the view that on its own, the plaintiff’s psychological state would not preclude a work capacity.[217]
[214]Ex P1, p67
[215]Ex P1, p67
[216]Ex P1, p53
[217]Ex P1, p68
The Defendant’s medical reports
Spine injury
50 The plaintiff was examined by Dr David Szmulewicz, neurologist, for medico-legal purposes on behalf of the defendant on 6 September 2019. In a report of the same date, Dr Szmulewicz said that the plaintiff reported “posterior neck pain affecting the lower cervical region and radiating to the left, and on occasions right, shoulder. The pain is described as sharp and burning which is generally of a severity of 5/10 but may increase to 8/10.”[218] In relation to the low back, the plaintiff reported “Lower back pain affecting the midline lumbar region, which more commonly radiates to the left rather than the right lateral leg, extending into the feet … The lower back pain is described as sharp, the leg pain is described as sharp with the variable presence of pins and needles or numbness sensation. Intensity of pain tends to be between 6-8/10.”[219] Dr Szmulewicz diagnosed the plaintiff as suffering from lower back pain, consistent with bilateral L5-S1 nerve root compression. He also commented that the plaintiff reported neck pain, in relation to which there was an absence of definitive neurological sign, and therefore was likely musculoskeletal in origin.[220] From a neurological perspective, he thought that the plaintiff had a work capacity if he was in a seated environment, allowing for regular changes in position.[221]
[218]Ex D1, p6
[219]Ex D1, p6
[220]Ex D1, p9
[221]Ex D1, p7
51 Dr Gregory Nutting, consultant orthopaedic surgeon, examined the plaintiff for medico-legal purposes on 19 August 2019 on behalf of the defendant. He noted that as a result of the transport accident, the plaintiff had aggravated pre-existing spondylitis in the cervical and lumbar spine. He noted that right sciatic pain had been reported, as well as Chronic Pain Syndrome.[222] Upon examination, Dr Nutting noted that any flexion or extension of the lumbar spine was accompanied by pain.[223] Dr Nutting was unable to assess the pain in the plaintiff’s shoulders, due to the plaintiff’s “fear of having his pain worsened”.[224] All movements of the plaintiff’s neck “resulted in left sided neck and deltoid pain”.[225] In conclusion, Dr Nutting “[accepted] that the neck and back pain … have all been aggravated by the accident, but [I] fail to believe that this still remains the main reason for the persistence of his symptoms …”.[226] He said that he would defer to his “colleagues in the area of psychiatry to perhaps shed further light on the topic”.[227]
[222]Ex D1, p14
[223]Ex D1, p17
[224]Ex D1, p17
[225]Ex D1, p17
[226]Ex D1, p18
[227]Ex D1, p18
Mental disturbance or disorder
52 Dr Justin Lewis, consultant psychiatrist, examined the plaintiff for medico-legal purposes on behalf of the defendant on 22 August 2019. In a report dated 25 August 2019, Dr Lewis noted that the plaintiff told him he had experienced “depressive symptoms” in 2011 in association with the premature birth of his youngest child, but that his “depressive symptoms resolved over time”.[228] Dr Lewis said that the plaintiff presented “with a recurrence of a pre-existing, stable Major Depressive Disorder. … [The plaintiff] presents with lowered mood, anhedonia, poor motivation, sleep disturbance, cognitive difficulties, and feelings of demoralisation and despondency.”[229] The history given to Dr Lewis led him to believe that the plaintiff’s pre-existing Major Depressive Disorder was, at the time of the transport accident, “well controlled and stable”[230] and had “fully resolved”.[231] He said that the plaintiff’s psychiatric prognosis is “inextricably linked to the course of the underlying medical condition”.[232] He thought that the plaintiff’s work capacity is impacted “consequent to lowered mood, poor motivation, sleep disturbance and cognitive difficulties. In addition, he is dealing with significant pain symptoms and physical restrictions.” He thought that as a result, “… [the plaintiff] does not present as an individual who is able to work on a consistent and reliable basis under the circumstances”.[233]
[228]Ex D1, p29
[229]Ex D1, p32
[230]Ex D1, p32
[231]Ex D1, p34
[232]Ex D1, p33
[233]Ex D1, p34
Evidence from vocational experts
53 Several reports from Vocational Provider, Healthe Work, were included in the Defendant’s Court Book in relation to the plaintiff’s work capacity. The first report, dated 18 December 2017, noted four potential positions which were deemed to be suitable for the plaintiff’s condition at that time. These positions were: [234]
[234]Ex D1, pp81-83
(a) Functions Co-ordinator;
(b) Help Desk Operator;
(c) Sales/Retail; and
(d) Customer Service Clerk.
54 It was noted in the report that the plaintiff’s general practitioner was “very supportive of the vocational options recommended and of our vocational program. She emphasised that … [the plaintiff] should aim to alternate his posture at random, in order to relieve any discomfort.”[235] It was apparent from the content of the report that Dr D’Argent was part of a meeting with the vocational providers.[236]
[235]Ex D1, p82
[236]Ex D1, p82
55 In a report dated 30 January 2018, it was noted that “… [the plaintiff] had not displayed any evident job search to date,”[237] despite being provided with assistance such as a résumé to apply for vacancies, a number of application letters, training in one-to-one interview skills and techniques.[238] Barriers to success with obtaining employment for the plaintiff were identified as being issues with the labour market competition in the eastern region of Melbourne and “… [the plaintiff’s] limited active participation in independent job search activities throughout the program”.[239]
[237]Ex D1, p87
[238]Ex D1, p91
[239]Ex D1, p91
Other relevant evidence
Evidence of overseas travel
56 Included in the Defendant’s Court Book were documents from the Department of Home Affairs, which contained evidence admitted by the plaintiff to be records of his overseas travel between April 2016 and July 2019. Those records revealed that during that period, the plaintiff travelled overseas on at least fourteen occasions, viz, three times in 2016, four times in 2017, four times in 2018 and three times up until July 2019.
57 On most occasions that he travelled, the plaintiff filled in an outgoing passenger card and/or an incoming passenger card. Copies of the cards that were available to the Court, reveal the following information:
Date of travel
Country travelled to
Occupation
Reason for travel
9 April 2016 - outgoing
Malaysia
Manager
Business
15 April 2016 - incoming
Malaysia
Self Employed
Not specified
17 May 2016 - outgoing
Malaysia
Manager
Holiday
28 May 2016 - incoming
Thailand
Manager
Not specified
30 September 2016 - outgoing
Thailand
Manager
Not specified
25 October 2016 - incoming
Afghanistan
Manager
Not specified
2 March 2017 - outgoing
Afghanistan
Self Employed
Visiting friends
20 March 2017 - incoming
Afghanistan
Self Employed
Not specified
28 June 2017 - outgoing
Malaysia
Manager
Holiday
12 July 2017 - incoming
Thailand
Businessman
Not specified
22 August 2017
No departure card
-
-
28 August 2017 – incoming
China
Manager
Not specified
5 October 2017 - outgoing
No departure card
-
-
11 December 2017 - incoming
United Kingdom
Self employed
Visiting friends
20 March 2018 - outgoing
No departure card
-
-
21 April 2018 - incoming
Afghanistan
Businessman
Visiting friends
11 June 2018 - outgoing
No departure card
-
-
25 June 2018 - incoming
No arrival card
-
-
30 August 2018 - outgoing
No departure card
-
-
20 September 2018 - incoming
No arrival card
-
-
No date available
No departure card
-
-
26 December 2018 - incoming
China
Businessman
Exhibition
19 March 2019 - incoming
Afghanistan
Self employed
Visiting friends
25 April 2019 -incoming
China
Self employed
Employment
30 July 2019 - incoming
Turkey
Self employed
Visiting friends
58 It is evident from the table above that on each occasion where the plaintiff filled in an outgoing passenger card or an incoming passenger card, he described his occupation either as “manager,” “self-employed” or “businessman”. On three occasions, he marked on the incoming passenger card that his main reason for travel was business related, by using the words “business”,[240] “exhibition”[241] and “employment”.[242]
[240]Ex D1, p161
[241]Incoming passenger card dated 26 December 2018 – Ex D1, p175
[242]Incoming passenger card dated 25 April 2019 – Ex D1, p177
Information concerning the Plaintiff obtained from the internet
59 In addition to the documents obtained from the Department of Home Affairs, the defendant relied upon the content of numerous websites which featured information about the plaintiff.
60 The first of these is a website entitled “iamamigrant.org”. The plaintiff admitted during cross-examination that he travelled with his friends to Canberra “sometime” in 2017, where he was interviewed for this website. The information published on that website, which the plaintiff re-published on his own Facebook page, included the following words:
“… When I came here I didn’t know a word of English, so I started from scratch. Today I have higher education degrees and own a successful business in Australia. I enjoy contributing to this country in the business field; I import goods from Turkey, Afghanistan and China, and through my business I pay tax and provide employment for people. I also started to export Australian products to other countries. I am a hard working person and will continue to expand my business in many ways … .”[243]
[243]Ex D1, p135-137
61 On a website called “onevisionaid.org”, the plaintiff is noted as a “member” of that organisation.[244] The plaintiff’s friend, Nadeem Azimi, is the president of that organisation. The organisation describes its “Mission” in the following terms:
“… Our mission is to help the disadvantaged and needy by providing them the basic educational requirements and financial support. We strive to support the disadvantaged communities to raise their skill levels and become self-sufficient. We believe education is a fundamental right. Through education we aim to achieve economic growth and help eradicate poverty … .”[245]
[244]Ex D1, p134
[245]Ex D1, p133
62 On the website of the Pakenham Gazette, in an article dated 15 January 2019, the plaintiff was featured in photographs and his speech quoted in coverage of an event to launch the “Nabi International Cricket Academy”.[246] The plaintiff acknowledged that he is the president of this organisation. The feature article includes the following information:
“… The Nabi International Cricket Academy (NICA) is all about giving players opportunities and pathways to gain the necessary skills to improve their game, and strive to deliver high quality cricket coaching with an aim to develop international players.
The training provided by the NICA will cater to aspiring boys and girls who want to improve their game, and ultimately, reach the highest level, with the academy hoping to develop state-of-the-art cricket coaching in Australia … Afghanistan and United Kingdom … Roman Sadath, the president of NICA, said that the launch was a success, and hopes the academy can continue to grow as it builds … .”
[246]Ex D1, pp92-93
63 The plaintiff agreed under cross-examination that the numerous photographs which accompany that article show him at the launch of the Academy in the company of the various cricket players, the Afghani ambassador, the Mayor of Casey Shire, Members of Parliament and others who attended. He agreed that in those photographs, he looked relaxed and happy.[247]
[247]Ex D1, pp92, 94 and 95
64 A photograph on Nadeem Azimi’s Facebook page was put into evidence. The plaintiff agreed that it showed him at a function for One Vision Aid at the reception centre, in about September 2016.[248]
[248]Ex D1, pp96-97
Transfer of Lease and License Agreement
65 Also contained within the Defendant’s Court Book was a transfer of lease agreement[249] and a licence agreement.[250]
[249]Ex D1, p179-183
[250]Ex D1, pp184-199
66 The transfer of lease agreement transferred the obligations of Australian Global Tradings Pty Ltd (the company of which the plaintiff is a director and which leased the reception centre) (“AGT”), to a company called Sher and Sons Pty Ltd, together with all of the options under the lease. Sher and Sons promised to pay the rent and do everything else required by the lease for the remainder of the term of the lease. It also indemnified AGT in respect of any breaches of the lease.
67 The licence agreement between the same parties, contained the following recitals and terms:
(a) that AGT would licence to Sher and Sons the business named “Royal Golden Receptions”;[251]
[251]Ex D1, pp187 and 196, clause 2 and schedule item 1
(b) that AGT had developed and established a business trading under this name, that the business has goodwill and a customer base and systems for ongoing repeat business;[252]
[252]Ex D1, p186, recital A
(b) that Sher and Sons “recognises the advantages of obtaining [the] licence…” of this established business;[253]
[253]Ex D1, p186, recital B
(b) that AGT granted a licence to Sher and Sons for the term 1 September 2017 to 31 August 2025, being two terms of four years;[254]
[254]Ex D1, p187 and 196, clause 2 and schedule item 6
(c) Sher and Sons agreed to pay AGT an ongoing licence service fee as follows:[255]
[255]Ex D1, p189, clause 9 and schedule item 10
(i) for the first term of four years between 1 September 2017 to 31 August 2021, the sum of $456,000, payable on or before 1 September 2017, being:
(A) $100,000 for the period between 1 September 2017 to 31 August 2018; and
(B) $356,000 for the period between 1 September 2018 to 31 August 2021;
(ii) for the second term of four years between 1 September 2021 to 31 August 2025, the sum of $240,000, payable on or before 1 September 2021, being:
(A) $60,000 for the period between 1 September 2021 to 31 August 2022;
(B) $60,000 for the period between 1 September 2022 to 31 August 2023;
(C) $60,000 for the period between 1 September 2023 to 31 August 2024; and
(D) $60,000 for the period between 1 September 2024 to 31 August 2025;
(d) that Sher and Sons will:
(i) conduct the business in a manner that causes no detriment to the goodwill of the business;[256]
[256]Ex D1, p190, clause 12(a)
(ii) ensure that the nominated representative will devote his or her full time and attention to the licenced business;[257]
[257]Ex D1, p190, clause 12(f)
(iii) honour all warranties and promptly and properly resolve any customer complaints;[258]
[258]Ex D1, p191, clause 12(i)
(iv) seek to expand and improve the business and shall remain open for business during normal business hours.[259]
(e) the business name at all times remains the property of AGT and is only available for use by Sher and Sons during the currency of the licence.[260]
[259]Ex D1, p191, clause 12(j)
[260]Ex D1, p192, clause 15(b)
The Issues
The Plaintiff’s credit
68 The plaintiff’s credit was tested thoroughly during the hearing of this matter. The matters which were canvassed were many and varied and are set out in detail above, together with the plaintiff’s responses to those matters.
69 Having heard all of the evidence and having had the benefit of observing the plaintiff while he was giving evidence to the Court, I am unable to accept that the plaintiff has lost his capacity for employment. The evidence indicates, and I find, that the plaintiff continued to work in the reception business into 2017, being at least one year after the transport accident. I find that this job required no manual handling and offered the plaintiff the flexibility to attend the reception centre at his convenience and to come and go as he pleased, subject to checking that the business was operating correctly and that things were set up for upcoming functions.
70 In addition to this, the evidence indicates, and I find, that the plaintiff has regularly travelled overseas, including to China, Turkey and Afghanistan. On the various Department of Home Affairs documentation, the plaintiff has described himself as “self employed”, “manager” and “businessman”. On at least three occasions, the entries on either the outgoing or incoming passenger flight cards indicated that the travel was business related in some way. These entries were in 2016, 2018 and 2019.
71 Similarly, despite giving evidence under oath that he had not worked since the transport accident, I note that he told an investigator in March 2016 that he was then working, at least in the reception centre business. In February 2017, he told Professor Bittar that he had “not worked since late January 2017”.
72 While the plaintiff asserted during this hearing that he has no current capacity for work and no plans to pursue any business activities through the numerous business entities with which he is associated, the plaintiff has, on the other hand, when not communicating for the purpose of the Court proceedings, disclosed that he is a successful businessman who engages in importing and exporting goods. As set out above, when interviewed in 2017 for the “iamamigrant.org” website, the plaintiff described himself, amongst other things, as owning “a successful business,” employing other people, paying taxes and importing and exporting products. He also said in that he is a “hard working person” and will continue “to expand” his business “in many ways”.
73 The plaintiff’s explanation for this evidence was that he was trying to hide from his relatives and friends the true extent of his injuries. At one stage, he said that the drugs he is taking for his pain had affected him when he gave the interview.
74 He had no satisfactory explanation for why, if the interview contained false information, he nevertheless shared it on his Facebook page.
75 I am unable to accept the plaintiff’s evidence in relation to this matter. This is especially so in circumstances where the plaintiff said under cross-examination, that the reason he went to China and other overseas destinations, funded by his relatives, was because they knew how depressed he was and, in effect, thought the travel would be good for him. This is in direct contradiction of his assertion that he needed to keep the true extent of his injuries hidden from his family and friends.
76 Further, the plaintiff swore in his affidavits that by reason of the injuries he sustained in the transport accident, and his consequent inability to pursue his work running a reception centre, he had lost approximately $400,000. Under cross-examination, it transpired that the plaintiff has not lost any money, and is presently being paid sums in respect of a licence to use the business name “Royal Golden Receptions”.
77 The documentation which transferred the lease of the premises and granted a licence to use the business name, stipulated that the business name had goodwill attached to it. The terms of the licence require the licensee to protect and maintain that goodwill and also to expand and improve the business. AGT, the plaintiff’s company, retains the full ownership of the business name and will resume the right to continue using it at the expiration of the term of the licence, in 2025. The plaintiff acknowledged under cross-examination that his uncle owns the building in which the reception centre is located. He agreed that there is no reason why he could not get a further lease from his uncle when the present lease expires in 2025. He said that he did not intend to do so.
78 Despite the plaintiff being in possession of all of the documentation referred to above, and despite the fact that the plaintiff swore three separate affidavits, the matters pertaining to the transfer of the lease and the licensing of the business name, only emerged into evidence when the plaintiff was carefully questioned under cross-examination in the witness box.
79 Given this, I am unable to be satisfied of the true reasons why the plaintiff entered into an agreement to license the business name and transfer his lease of the reception centre premises. In particular, I am unable to be satisfied that the reason behind the plaintiff entering into these two agreements, was in any way related to the injuries which the plaintiff suffered in the transport accident.
80 As to the evidence concerning the extent of the injuries which the plaintiff suffered to his spine in the transport accident, I note that the medical reports contained within the Court Books disclose varying accounts of the location and degree of pain, depending on whether the plaintiff was consulting with a doctor engaged by the plaintiff or the defendant.
81 For example, in relation to the degree and extent of his neck pain, in February 2017, the plaintiff told Professor Bittar that his neck pain was improving and that his main issue was the lower back pain. In January 2018, Professor Teddy recorded that on examination, the plaintiff had generally a full range of neck movement with mild pain at the extremes of movement. In February 2018, the plaintiff told Dr Hayman that his neck pain had improved and that while he continued to experience some pain, it was less than before. In September 2018, Dr Chia noted that movement of the plaintiff’s cervical spine was not markedly limited.
82 By comparison, in his interaction with the defendant’s doctors, the following matters were recorded about the plaintiff’s neck pain:
(a) in August 2019, Dr Nutting was unable to assess the pain in the plaintiff’s shoulder due to the plaintiff’s fear of having his pain worsened. He also noted that all movements of the plaintiff’s neck resulted in left-sided neck and deltoid pain; and
(b) in September 2019, the plaintiff told Dr Szmulewicz that his neck pain was sharp and burning and generally of a severity of 5 out of 10, but may increase to 8 out of 10.
83 In addition to these matters, the plaintiff deposed in his affidavit material to the fact that as a result of the injury to his spine, he experienced pain radiating into his right leg.[261] However, he has recently told at least one doctor that the pain in his leg is mostly left sided.[262]
[261]Ex P1, p11
[262]Ex D1, p6, report of Dr Szmulewicz dated 6 September 2019
84 Similarly, although the plaintiff deposed to the emergence of numerous consequences arising from a mental disturbance or disorder caused by the transport accident, as set out above, it transpired under cross-examination, and I find, that he had a very serious pre-existing mental disturbance or disorder, which persisted up until the time of the transport accident. He had last been prescribed medication for this condition on 27 October 2015.
85 Further, it is clear that the plaintiff gave a significantly misleading medical history to Dr Lewis, for the defendant, when he said that he had experienced depressive symptoms in 2011 in association with the premature birth of his child, but that these depressive symptoms had resolved over time and that he was “psychologically well immediately prior to the transport accident”.[263]
[263]Ex D1, p31
86 Lastly, the affidavits which the plaintiff swore, omitted significant information which was relevant to the issues before the Court. The further affidavits filed by the plaintiff made no attempt to clarify these significant matters, nor to correct the plainly false content which had been sworn to at an earlier time. As set out in detail above, the plaintiff’s evidence as it emerged under careful cross-examination, differed significantly from that contained in his affidavit material.
87 It became clear during the course of the hearing, that the plaintiff was only prepared to make concessions about factual matters adverse to his case, if confronted with documents which contradicted his evidence. On some occasions, even when confronted with these documents, he was not prepared to make a concession. The authors of these documents were not required to attend for cross-examination.
88 Having observed the plaintiff while he was giving his evidence and having considered all of the material in the Court Books, I find that the plaintiff was an unreliable witness. I find that he gave unsatisfactory and inconsistent evidence, carefully designed to advance his case.[264]
[264]See comments made by the bench in Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8, at paragraphs [4]-[42], per Nettle and Beach JA, and McMillan AJA
89 Having regard to these matters, I formed the view at the conclusion of the plaintiff’s evidence, that I would only be prepared to accept the truth of the matters to which he deposed if they were corroborated by independent documentary evidence or an account from a third party.
Compensable injury
90 The details and occurrence of the accident are not in dispute.
91 Having considered all of the medical evidence from both treating professionals and medico-legal experts from both sides, the weight of the evidence satisfies me that:
(a) prior to the transport accident, the plaintiff suffered from a Major Depressive Disorder, which was not resolved, which adversely affected his life in numerous ways and for which he was being prescribed Sertraline just prior to the transport accident;
(b) as a result of the transport accident, the plaintiff presently suffers from:
(i) injuries to his spine as a result of a right-sided disc protrusion at C5‑6 compressing the right C6 nerve root, a minor disc bulge at L2-3 and a left-sided disc bulge at L4-5;
(ii) some limited exacerbation of his pre-existing Major Depressive Disorder, causing a degree of diminished libido and some additional sleep interruption. I find that this condition constitutes a mental disturbance or disorder for the purposes of the Act.
Is the compensable injury permanent for the purposes of the Act?
92 Having considered the relevant reports, particularly those from Dr D’Argent,[265] Dr Szmulewicz,[266] Dr Nutting,[267] Professor Teddy[268] and Dr Lewis,[269] I find that the plaintiff is likely to continue to suffer from the injuries sustained in the transport accident, as set out above, for the foreseeable future. Given this, I find that those injuries are permanent for the purposes of the Act.
[265]Ex P1, p32
[266]Ex D1, p10
[267]Ex D1, p19
[268]Ex P1, p76
[269]Ex D1, p33
Are the consequences to the Plaintiff of the transport accident “serious”?
Mental disturbance or disorder
93 As I have found above, prior to the transport accident, contrary to what he told both the Court and the various medical experts who provided evidence in this hearing, the plaintiff suffered from a Major Depressive Disorder, which was not resolved, which adversely affected his life in numerous ways and for which he was being prescribed Sertraline just prior to the transport accident.
94 The evidence indicates, and I find, that prior to the transport accident, the consequences of the plaintiff’s existing mental disturbance or disorder included lethargy, irritability, headaches, an inability to feel pleasure, poor motivation, anxiety, stress, some insomnia, poor appetite, poor concentration, feeling tired and drained, feeling he had low energy and feeling sad and low most of the time.
95 It falls to me to determine what additional consequences, if any, the plaintiff experiences by reason of the exacerbation of the pre-existing mental disturbance or disorder, which exacerbation was caused by the transport accident.
96 Doing the best that I can, having regard to the unreliability of the plaintiff’s evidence and his tendency to give differing accounts of his symptoms to different people, I find that in addition to the matters set out above, the plaintiff presently experiences a degree of diminished libido and some additional sleep interruption. I am unable to be satisfied about the extent or frequency of these additional consequences. In those circumstances, I am unable to conclude that the exacerbation of the plaintiff’s pre-existing mental disturbance or disorder, is “severe” for the purposes of the Act.
97 I specifically reject the plaintiff’s assertion that by reason of the exacerbation of his pre-existing mental disturbance or disorder, he experiences a reduced enjoyment of social activities and avoids crowds. The evidence before the Court clearly indicates that the plaintiff continues to socialise with his friends, and happily frequents crowded places, such as the opening of the Nabi International Cricket Academy, the “i am a migrant” festival in Canberra, the numerous airports and planes required for his frequent travel overseas since 2016, and the two rug exhibitions which he attended in China.
Injury to the spine
98 As set out above, I have found that as a result of the transport accident, the plaintiff suffered a new injury to his spine.
99 As a result of this injury alone, I find that the plaintiff presently experiences the following consequences:
(a) pain in his lower and middle back. However, the only evidence of this matter comes from the plaintiff, who I have found to be an unreliable witness. As such, I am unable to be satisfied as to the frequency, intensity or duration of such pain. Given the conflicting histories which the plaintiff has given to various doctors, I am also unable to be satisfied as to whether, and if so to what extent, the plaintiff suffers from any radicular pain;
(b) the need to take pain-relieving medication;
(c) an inability to play social sport such as cricket and soccer with his friends;
(d) some interference with his ability to sit and stand, although for the reasons referred to in sub-paragraph (a) above, I am unable to be satisfied as to the extent to which this occurs. In forming this conclusion, I have had regard to the fact that the plaintiff has voluntarily travelled overseas on long-haul flights on at least fourteen occasions since 2016, travelled for nine or ten hours to Canberra by car and travelled for two-and-a-half to three hours by taxi in Afghanistan;
(e) some interference with his ability to perform household tasks. There is no third party corroboration of the extent to which the plaintiff engaged in such activities prior to the transport accident. Thus, for the reasons referred to in sub-paragraph (a) above, I am unable to be satisfied of the extent to which these activities have been affected at all, or by reason of the plaintiff’s spine injury alone;
(f) some interrupted sleep, however, for the reasons referred to in sub-paragraph (a) above, I am unable to satisfied of the extent to which the injury to his spine causes this consequence, or the frequency with which such sleep interruption occurs. In forming this conclusion, I have taken into account the fact that the plaintiff has also attributed his interrupted sleep to his mental disturbance or disorder, and also the fact that the plaintiff suffered from some insomnia prior to the transport accident;
(g) some interference with his ability to be active with his children, although for the reasons referred to in sub-paragraph (a) above, I am unable to be satisfied as to extent to which this occurs.
100 I have already found that there is no reliable evidence as to the extent to which the plaintiff has suffered any pecuniary disadvantage by reason of the injury to his spine alone.
101 In Haden Engineering Pty Ltd v McKinnon,[270] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[271] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment.
[270](2010) 31 VR 1
[271](ibid) at paragraph [9]
102 The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[272]
[272](ibid) at paragraph [12]
103 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was not a reliable witness.
104 As to the claim under paragraph (a), taking into account all of the evidence, and on the basis of the findings I have made as to the restrictions from which the plaintiff presently suffers as a result of the injury to his spine alone, I am unable to be satisfied to the requisite standard that the pain and suffering consequences of that injury are “very considerable” or more than “significant” or “marked”. Therefore, I am not persuaded that the plaintiff has satisfied the relevant test for “serious injury” as set out in the Act.
Conclusion
105 For the reasons set out above, the application is refused.
106 I will hear the parties on the question of costs.
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