Safi v Zhao

[2009] NSWDC 103

CITATION:	Safi v Zhao [2009] NSWDC 103
HEARING DATE(S):	30 April 2009 and 1 May 2009
JUDGMENT DATE:	29 May 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	The plaintiff is entitled to a verdict against the defendant in the amount of $20,250.70. The parties will be heard on costs before final orders are made.
CATCHWORDS:	TORTS - Motor vehicle accident - Negligence - Personal injury - Liability admitted - Assessment of damages - Previous accidents - Effect of pre-existing injuries - Injuries from subject accident temporary aggravation of pre-existing condition - Present injuries resolved to pre-accident condition
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 81(1), 128 and 131
CASES CITED:	Nil
PARTIES:	Mohammed Safi - Plaintiff Kun Zhao - Defendant
FILE NUMBER(S):	No 2572 of 2008
COUNSEL:	Mr AC Canceri for Plaintiff Ms C Allan for Defendant
SOLICITORS:	CMC Lawyers for Plaintiff Sparke Helmore for Defendant

JUDGMENT

1 This action arose from a motor vehicle accident on 6 February 2005 as the plaintiff, Mohammed Safi, was driving his vehicle east along Parramatta Road, Broadway towards the city. The defendant, Kun Zhao, was travelling in the opposite direction and, in attempting to make a right-hand turn, struck another motor vehicle resulting in multiple vehicle collisions including to the plaintiff’s vehicle which was towed from the scene; he then went home. The next day he experienced pain in the head, neck, shoulders and back and brought this action to recover damages from the defendant for negligence.

The issues

2 The defendant admitted liability pursuant to a notice given under s 81(1) of the Motor Accidents Compensation Act 1999 (the MAC Act) so that the present proceedings were concerned with the assessment of damages only. The plaintiff’s claim in that respect was for out-of-pocket expenses, economic loss (including lost superannuation) and gratuitous attendant care services; non-economic loss was not pursued, by reason of s 131 of the MAC Act, as the plaintiff was assessed for whole person impairment not greater than 10 per cent. However, the claim for damages was wholly resisted by the defendant on the basis, essentially, that the plaintiff’s injuries were of a minor nature and had resolved, he had not in fact incurred any loss of wages and the domestic assistance provided was much the same as before the accident.

Factual background, including prior accidents

3 The plaintiff was born on 15 December 1978 so that at the time of the accident he was age 26 years and 30 years at trial. After leaving St Mary’s High School in Year 10 on obtaining the School Certificate he worked in his father’s gift shop at Penrith serving customers and doing stocktakes for about three years. Employment for two years as a storeman at Woolworth’s warehouse at Fairfield then occurred in the preparation of orders and packing of goods which involved the lifting of heavy boxes to place on pallets for distribution. Cutting and fashioning timber in a cabinetmaking factory for about one and a half years was then performed by the plaintiff until he obtained a storeman’s job in early-September 2002 at a warehouse at Arndell Park operated by Westgate Logistics Pty Limited.

4 Within about ten days of commencing work at Westgate Logistics, on 18 September 2002 the plaintiff hit his head on a steel frame while lifting a box from the rack onto a pallet in an aisle; he was knocked unconscious and suffered concussion. Although he returned to work the following day, with continuing post-traumatic headaches and dizziness he was unfit for work until 7 November 2002 when he returned to his pre-injury duties. That day he consulted Dr Craig Presgrave, a neurologist and neurophysiologist, who, as the plaintiff said, reassured him the headaches were not due to any serious pathology and would settle in time; headaches were then being experienced at least once a week but he said they were much improved by the end of 2003. On 8 December 2002 the plaintiff resigned from his employment with Westgate Logistics but there was some suggestion the employer terminated it due to poor work performance. A claim for workers compensation benefits was eventually settled in June 2006.

5 Unemployed but looking for a position, on 7 March 2003 the plaintiff was involved in a motor vehicle accident at Colyton, near St Mary’s, when the motor vehicle he was driving collided with another vehicle at an intersection. An ambulance conveyed him to Nepean Hospital with an injury to his neck and a fractured right collarbone; he was discharged the next morning. A claim for damages arising out of this accident was later discontinued by the plaintiff, for reasons he could not remember but which apparently concerned the issue of liability as the other driver alleged the plaintiff drove through the intersection against a red light. He continued unemployed and was unable to commence on 17 March 2003 as planned a job with Ultimate Car Consoles earning $480 net per week. He started to look for another job, as he explained, “doing anything.” At the time, and as at the end of 2003, the plaintiff said he was physically in good condition albeit with some right shoulder and minor neck problems which persisted into 2004/2005; from time-to-time he took Panadeine for minor headaches. Into the year 2005, the plaintiff said his health was good.

Subject motor accident and consequences

6 On the occurrence of the subject motor accident in February 2005 the plaintiff’s immediate feeling was, although shaken, that he had not been injured. As he said in a statutory declaration on 30 October 2007, “I was upset with the damage done to my motor vehicle and my priority after the accident was to ensure that my motor vehicle was towed away to be repaired.” However, on awakening the next morning the plaintiff said he had trouble in moving from “pains in the right side of my neck, right shoulder, right arm and lower back.” With continued symptoms he consulted his general practitioner, Dr Ali El-Jaam, who prescribed medication, arranged for x-rays and referred him to an orthopaedic surgeon, Dr Grahame Mahony. It is to be noted that the plaintiff delayed seeing Dr El-Jaam until 29 March 2005, seven weeks after the motor accident, and Dr Mahony was first seen for these problems on 9 March2005 but as part of continuing treatment for residual problems from the motor accident in March 2003.

7 At the time, and still unemployed but not looking for work because of the injuries, the plaintiff said he was living alone in a two-bedroom house. His fiancée, who later became his wife, and his sister assisted the plaintiff with domestic chores; soon after his fiancée moved into the house to better assist with cleaning and washing for one or two hours every second day and his sister did the shopping and paid the bills. Still unemployed, the plaintiff with his fiancée moved to a rented house at Penrith where, as he said, she “did practically everything” due to persisting pain in his “back, neck, hands and lower back.” At the end of 2006, and now married, they moved again to Chester Hill into a four-bedroom house and the plaintiff’s parents moved in with them.

8 In the meantime, on 3 April 2005 the plaintiff completed a motor accident claim form as to the subject accident in which he identified his injuries as “neck, back and shoulder” which then affected him by “constant pain, cannot lift, can’t move neck or bend over properly.” However, that claim form in referring to prior injuries did not refer to the motor accident in March 2003 but only to the work accident in September 2002 as resulting in “head injuries.”

9 For completeness, the motor accident claim form as to the March 2003 accident completed on 28 March 2003 described the injuries sustained as “shock, blow to right side of body, fracture of right clavicle, bruising right side of neck, injury to neck, injury to right side of rib, general bodily and psychological trauma.” The effects of these injuries were stated as “difficulty lifting, sleeping, attending domestic duties, work, showering, walking, sitting, run, loss of movement of right arm, future surgery to right shoulder etc.” Again, the September 2002 work injury was disclosed as causing “head injury.”

Employment and plaintiff’s present condition

10 In May 2006, the plaintiff obtained a contract with Cydcan Transport as a self-employed driver to deliver meat pies to cafes, hotels and milk bars located in the Northern Beaches area of Sydney. The pies were contained in boxes weighing only about 3 kgs so as to be within the plaintiff’s capacity to lift; he started the work from 4.30am each day Monday to Friday and finished at 9.00 or 9.30am. By then, he said, he did not feel very good as pain developed in all of his back, neck, hand and shoulder – it was noticeably worse than before the February 2005 motor accident as he did not then have back pain and the neck pain had since increased; also, left shoulder problems had developed but the right shoulder was worse.

11 At present, on arriving home after work the plaintiff’s practise is to sleep until his wife gets home around 4.00 or 5.00pm. He said he does very little around the house because of his condition and takes medication for pain relief and to assist sleep and uses a pharmacological cream. He sees Dr El-Jaam every three weeks, but no other doctors, and would welcome further physiotherapy, previously paid by the motor accident insurer but since it was stopped he was unable to afford it.

12 In the domestic situation, the plaintiff said his wife did the chores such as washing, cooking and cleaning; his father did the gardening and mowed the lawns – if affordable, commercial help in the domestic situation was desired. The real problems experienced at present were weekly neck pain, right shoulder pain and upper and lower back pain, but where the lower back was the worst and was felt to be aggravated by work. Even so, the plaintiff said his intention was to continue working for Cydcan, where he presently earns $600 to $650 net per week for 25 hours, as he said, “until I die but certainly for some years.” A potential problem, perhaps, was identified with Cydcan because he was regularly asked to undertake more deliveries of meat pies but had declined because of the level of pain experienced.

Assessment of evidence

13 Close cross-examination of the plaintiff concerned his level of incapacity after the subject motor accident, his failure to seek timely medical treatment, inconsistencies stated by him to the various doctors seen and the true effects of the prior injuries from the 2002 work accident and the 2003 motor accident. For instance, he maintained he consulted Dr El-Jaam a couple of days after the motor accident on 6 February 2005, after initially saying he was not sure, but Dr El-Jaam reported he first saw the plaintiff about it on 29 March 2005 having seen him on 12 February 2005 for tonsillitis. The plaintiff could not remember consulting a medical psychologist, Dr Alex Gilandas, on 21 January 2004 for an evaluation after the work accident head injury in which psychometric and neuropsychological tests were administered – the plaintiff was found to be suffering from post-traumatic headaches, clinically depressed and anxious; Dr Gilandas thought him unemployable on the open labour market in his then current state. That opinion, as the plaintiff agreed, was used in the June 2006 settlement of his workers compensation claim. Even so, the plaintiff maintained he had minimal symptoms after the 2002 work accident and tried to work right up to the 2003 motor accident, but was then unable to work, particularly in lifting things, due to the neck and shoulder problems. By the time of the subject accident, however, he said he had improved and only needed sleeping tablets; he was still receiving treatment from Dr Mahony in the form of local anaesthetic injections in his right ankle and physiotherapy in the form of shortwave, ultrasound and cervical traction as a result of the 2003 motor accident. Significantly, the plaintiff saw Dr Richard Sekel, a consultant in occupational medicine, on 6 October 2006 who reported he “openly confirmed that his symptoms and function following the subject motor accident of 6/2/05 have completely returned to normal” – the plaintiff denied so informing Dr Sekel but accepted he was “much improved” albeit with minor headaches.

14 The plaintiff’s claim he consulted Dr El-Jaam every three weeks or so was not borne out by Dr El-Jaam’s clinical record of visits which showed only 16 occasions from 12 February 2005 to 7 February 2008.

15 Samantha Safi, the plaintiff’s wife gave evidence. She first met him after the 2003 motor accident and said he was then in a great deal of pain and so provided domestic assistance for one to two hours daily over seven days a week. That continued to be the position until the assistance in 2004 reduced to one-half to one hour daily; in 2005 it was about one to two hours daily after she started to live with the plaintiff following the subject motor accident doing cooking, cleaning, washing, ironing and mowing lawns. She said he was not able to do much at all because of pain and at times she showered and dressed him as he was restricted in moving the shoulders, neck, back and head – that continued to be the position.

16 Mrs Safi, however, readily conceded she would do the various domestic duties as the housewife even if the plaintiff could do them; she was no longer showering or dressing him and he attended to his own personal needs.

17 There were in the plaintiff’s evidence considerable inconsistencies. He presented in a very quiet and anxious way but became confused in answering questions; he did not seem to comprehend matters put to him. Certainly he was a very poor historian and could not remember many events of apparent significance although he was firm in denying many of the things reported by the medical practitioners as part of the history given by him. Against that, however, it is to be acknowledged that as a young adult he was subject to three accidents of a traumatic nature within a period of only two and a half years involving not insignificant consequences for him both physically and psychologically. The real difficulty in the evidence he gave was an apparent attempt to emphasise the disabling effects of the subject motor accident compared to the effects of the 2002 work injury and the 2003 motor accident. I think his evidence, particularly as to the extent of his present incapacity referable to the subject motor accident, is to be viewed with caution. A review of the medical evidence will assist in disentangling the position.

18 Mrs Safi, in my view, gave a frank account of her involvement with the plaintiff and of the domestic assistance she provided to him. It complemented that of the plaintiff and did so in a non-exaggerated way. She was very frank in readily admitting that after they were married on 16 December 2007 she performed the household duties and would have done so notwithstanding her husband’s disabilities. I accept her evidence.

Medical evidence

19 The plaintiff consulted a number of medical practitioners for treatment of his injuries from the three accidents and for medico-legal purposes. I propose to deal only with what is seen to be the principal evidence in those reports.

20 Dr Alex Gilandas: In his report of 21 January 2004, Dr Gilandas concluded the plaintiff was of “borderline to low-average intelligence who obtained generally low-average scores on tests of intelligence and memory processes…insufficient evidence for significant brain damage.” I think that view goes to explain the apparent difficulties and confusion the plaintiff displayed in giving evidence and satisfies me that he genuinely did his best in outlining his condition as he saw it. Of course, that approach does not remove the effect of what he told some doctors, such as Dr Sekel, that his symptoms now were at the same level as before the subject motor accident. Dr Gilandas assessed the plaintiff as having a whole person impairment of 22 per cent for activities of daily living.

21 Dr Grahame Mahony: Reports from Dr Mahony as the treating orthopaedic specialist were relied upon by both parties. He first saw the plaintiff on a referral from Dr El-Jaam on 9 April 2003 after the March 2003 motor accident. He then diagnosed a cervical strain and fracture of the right collarbone. The plaintiff was reviewed on 1 September 2003, 10 March 2004, 26 July 2004 and 3 September 2004; at that last-mentioned date complaints were made of pain in the right side of the head as well as pain in the neck, right shoulder and tight ankle. On a review on 9 March 2005, five weeks after the subject motor accident when the plaintiff’s vehicle was struck in the rear by another vehicle, Dr Mahony noted an injury to the right side of the neck which aggravated his prior neck condition of cervical strain. Further reviews were conducted on 6 June 2005, 5 September 2005 and 5 December 2005 on which latest date Dr Mahony noted a complaint of pain in the plaintiff’s neck radiating to the right shoulder; the left knee symptoms had settled. Consistently with the earlier view, Dr Mahony as at December 2005 expressed the opinion that the plaintiff had “developed symptoms referable to a cervical strain with radiating pain to the right shoulder…rotator cuff lesion of the right shoulder…good recovery in regard to his left knee symptoms”; further review was suggested in regard to monitoring work capacity.

22 Dr Ali El-Jaam: As the plaintiff’s general practitioner, Dr El-Jaam said he first saw the plaintiff following the February 2005 motor accident on 29 March 2005 when he complained of neck pain, right shoulder pain and lower back pain. Dr El-Jaam diagnosed soft tissue injuries to the neck and lower back; the prognosis was for almost complete resolution in time but possibly with occasional exacerbations.

23 Dr Craig Presgrave: On 7 November 2002 and 8 July 2003 on referral by Dr El-Jaam, Dr Presgrave saw the plaintiff for an assessment of his migraine headaches consequent upon the 2002 work accident. In a report of 10 December 2003 Dr Presgrave expressed the opinion that the headaches had been triggered by the work accident but the prognosis was very good for improvement; fitness for work was dependent entirely upon the shoulder condition from the March 2003 motor accident.

24 Dr Richard Sekel: On 6 October 2006, the plaintiff ws examined by Dr Sekel, a consultant in occupational medicine, who took a comprehensive history covering the three accidents in 2002, 2003 and 2005 and in respect of each reported the plaintiff’s position as follows –

• 2002 accident: “He states that he continues to have constant pain in the head, upper back, lower back, right shoulder, neck and right arm as a result of that 2001 (sic) accident.”
• 2003 accident: “He states that he continues to have more pain now in his right upper arm than existed before the accident of 2003.”
• 2005 accident: “Mr Safi states that, of the three accidents in 2001 (sic), 2003 and 2005, the third accident caused the least injury. On the day of the accident, Mr Safi was not aware of any pain. On the next day he noticed increased stiffness in one of the same areas as he had been suffering from pain and stiffness over the preceding several years, i.e. in the right posterolateral surface of his neck and the right suprascapular region. Mr Safi confirmed that he did not sustain any other injuries from the 2005 accident, and specifically did not sustain any injury of his thoracic or lumbar back region during the 2005 accident.”

25 Dr Sekel, as noted earlier, reported that the plaintiff said his symptoms had returned to the level that had existed before the subject accident occurred and, so, had not obtained any increased treatment since December 2005. The opinion was then expressed:

“He confirmed that his only complaint from that accident (February 2005) was increased stiffness in the right posterolateral surface of his neck, but as this pain had been present for the preceding several years,…any such increased symptoms would only have been a temporary exacerbation of the pre-existing condition.

Today Mr Safi confirmed that his symptoms returned to their pre-February 2005 level within a number of months after that accident…it is far more likely that any increased stiffness would have returned to its pre-existing level within a maximum of six weeks, and probably even much less than that.

There is now no ongoing physical abnormality resulting from the subject accident of February 2005.

…”

26 Dr Terry Kwong: On 11 April 2007, Dr Kwong, a consultant physician and rheumatologist, saw the plaintiff and took a history concerning the two motor accidents in 2003 and 2005 but with no reference to the 2002 work accident. After examination, Dr Kwong diagnosed cervical strain, lumbar strain and inflammation of the right shoulder. Dr Kwong considered the then present complaints of back, neck and right shoulder pain were referable to the two accidents and regarded the plaintiff as totally unfit for work from March 2003 to May 2006 and partially unfit thereafter. Although fit enough to perform the duties of a delivery driver, Dr Kwong said the plaintiff was not fit for overtime or extended shifts and sequelae from the injuries would result in episodic periods off work; the prognosis was guarded. As to domestic assistance due to the injuries, Dr Kwong said the plaintiff needed two hours per week for the next two years and then a reassessment.

27 Dr Tai-Tak Wan: A consultant physician in rehabilitation medicine, Dr Wan saw the plaintiff on 10 May 2007 and, although a detailed history of past health and injuries was given from what the plaintiff said, Dr Wan said he was not a good historian and the history given was somewhat confusing. Nevertheless, after clinical examination this opinion was expressed:

“The clinical features are consistent with chronic pain involving the neck, back and right shoulder, due to the injuries sustained in the subject MVA on 6 February 2005. The assessment has been complicated by the presence of pre-existing injuries due to a MVA in 2001 (sic) , probably another MVA in 2004 (sic) and a work-related injury in 2002…I assess that Mr Safi has sustained the following injuries as a result of the subject MVA on 6 February 2005:

• Neck injury - soft tissue injury, an exacerbation of a pre-existing neck injury.
• Lower back injury - soft tissue injury, an exacerbation of a pre-existing injury.
• Right shoulder injury - soft tissue injury, an exacerbation of a pre-existing injury.

…the available evidence does not suggest any significant traumatic brain injury from the subject accident (2005). The observed cognitive difficulties may have been related to the pre-existing work-related injury in 2002 and his border-line or below-average pre-existing intelligence…
…
The natural history of the neck and back pain is for gradual improvement over time…”

28 Dr Wan commented that the plaintiff would have been unfit for work for a few days after the February 2005 motor accident and then fit for suitable duties not requiring heavy lifting and able to have frequent breaks. As to domestic assistance, Dr Wan considered for the first three months after the motor accident he would have required help in cleaning, vacuuming and washing of five hours per week and three hours per fortnight with handyman assistance; thereafter, three hours per week would be needed for domestic activities and two hours per fortnight of handyman help. Given that the plaintiff suffered a whiplash-associated disorder, Dr Wan thought a multidisciplinary rehabilitation programme/pain management programme would be of benefit at a cost of $8,000 with review by a rehabilitation physician at least six times in the first year and four times in the following year at a cost of $2,000; the domestic assistance needs could then be reviewed in light of progress.

29 Dr Vijay Maniam: Examined on 14 August 2007, Dr Maniam, an orthopaedic surgeon specialising in shoulder and knee problems, dealt with the two motor accidents experienced by the plaintiff. He reported on 4 October 2007 and diagnosed strain of the cervical spine and lumbar spine with traumatic inflammation of the right shoulder; disabilities of pain in the neck, right shoulder and lower back were noted resulting in intolerance for housework and lifting. Dr Maniam thought the conservative treatment thus far of physiotherapy and cortisone injections should be extended with further tests such as an MRI and a rehabilitation programme. Relevantly, however, Dr Maniam concluded that the plaintiff’s condition arose from the first motor accident in March 2003 from which event he became totally incapacitated but partially capable of obtaining a selected duty position within about six months of each motor accident – he was not told about the 2002 work accident. As to the present position, Dr Maniam said the plaintiff “has returned to normal capacity”, although he assessed 15 per cent whole person impairment due to the condition of the neck, right shoulder and low back.

30 Dr Richard Crane: On 19 September 2006, Dr Crane, as a MAS Assessor under Pt 3.4 of the MAC Act, found the injuries of strain to the cervical spine and lumbo-sacral spine were caused by the subject 2005 motor accident but he assessed the resultant whole person impairment at zero.

31 Findings: The medical evidence ranged from complete resolution of the plaintiff’s problems from the February 2005 motor accident, as found by Dr Sekel, to ongoing disabilities with the neck, right shoulder and low back as found by Dr Wan and Dr Kwong. However, what was a common view was that the injuries sustained were of a soft tissue nature to the neck and lower back as an aggravation to the pre-existing condition from the March 2003 motor accident and September 2002 work accident. There may be no doubt on any overall view of the medical evidence other than that the 2003 motor accident played a prominent role in the plaintiff’s physical disabilities and the regular reports of Dr Mahony after first seeing the plaintiff in April 2003 emphasised this fact.

32 The significance of Dr Sekel’s opinion is that it was based on a detailed and reasoned approach from the subjective complaints of the plaintiff, how he felt from time-to-time, the clinical findings and, importantly, by reference to all three accidents in 2002, 2003 and 2005. Further, the clinical notes of Dr El-Jaam and Dr Mahony’s reports provide objective material which, in my view, is consistent with Dr Sekel’s opinion. So too, Dr Maniam thought the plaintiff’s condition stemmed from the March 2003 motor accident and presently it had returned to normal capacity.

33 In assessing the plaintiff for the purpose of quantifying damages, I will rely on the reports and opinions of Dr Sekel, Dr Maniam, Dr Mahony, Dr Presgrave and Dr El-Jaam.

Damages

34 The parties, as I have indicated, were far apart on the assessment of damages. Indeed, counsel for the defendant, other than a minimal amount for past physiotherapy costs, submitted no loss or damage had been sustained by the plaintiff so that no damages should be allowed and a verdict given for the defendant accordingly. On the other hand, the plaintiff through his counsel quantified the various heads of damage in a total amount to the order of $370,000.

35 It appears the plaintiff enjoyed good health until the work accident in September 2002 when he injured his head, with the onset of headaches and dizziness, but later poor performance at work resulted in the loss of his job as a storeman at Westgate Logistics’ warehouse. Then, but still unemployed, on 7 March 2003 he was involved in a seemingly serious motor accident in which he injured his neck and fractured his right collarbone; consequent problems in those areas persisted into 2004/2005, together with continued minor headaches, as he looked unsuccessfully for other work. He lived alone at the time but shortly after meeting his now wife following that accident she provided domestic assistance to him of washing, cleaning, ironing and vacuuming for one to two hours per day over seven days a week; that reduced in 2004 to about one-half an hour or one hour daily. Then, and again still unemployed, on 6 February 2005 the subject motor accident occurred in which he injured his neck, shoulder and back. Although experiencing pains in those areas, he did not consult his general practitioner for about six weeks and, on doing so, pain medication and physiotherapy were provided. He was referred to Dr Mahony who had been treating him since the earlier motor accident. The problem areas were the same as those from that March 2003 motor accident and his now fiancée increased the domestic assistance to one to two hours daily for each day of the week; in 2006 she started to live with the plaintiff and they were married in December 2007 – she continued to perform the domestic chores.

36 In May 2006 the plaintiff obtained a contract as a self-employed driver with Cydcan Transport to deliver meat pies earning from $600 to $650 net per week for work of 25 hours per week. Income tax returns for the plaintiff over the financial years showed average net weekly income of $162.74 in 2002, $294.17 in 2003, nil in the years 2004, 2005 and 2006 and $471.57 in 2007 – no information was available for the year 2008 but the plaintiff said he earned about $600.00 net per week on the average.

37 The plaintiff sees Dr El-Jaam on a somewhat infrequent and irregular basis for his present complaints which, as he said, involved continuing neck, right shoulder and lower back pain – the worst pain was from the lower back. He takes pain medication and sleeping tablets which, he said, respectively cost $27.00 per month and $22.00 per fortnight. Otherwise, the plaintiff does not receive any treatment, apart from seeing Dr Mahony every few months as he has done since 2003, although he would welcome further physiotherapy.

38 The evidence of Dr Sekel, consistent with that of Dr El-Jaam, Dr Mahony and Dr Maniam placed the major and substantial cause of the plaintiff’s problems as the March 2003 motor accident so that the subject February 2005 motor accident caused soft tissue injuries as a temporary aggravation of a pre-existing condition which has since returned to that pre-existing state.

39 In light of those circumstances I turn to consider the respective heads of damage claimed referable to the subject 2005 motor accident.

40 Out-of-pocket expenses: The claim for the past expenses was $3,405.60. Although denying any allowance should be made, the defendant conceded the motor accident insurer had paid $1,343.00 for physiotherapy; an amount of $82.70 was the agreed cost of a radiologist, Dr Cooke, for a lumbar and cervical x-ray on 13 April 2005; Dr Mahony’s fees after the subject accident were $336.00; and the fees paid to Dr El-Jaam for back pain consultations amounted to $124.00 – those costs, which I will allow, totalled $1,885.70. Otherwise, I accept that the claimed costs for doctors were not related to the subject accident. As to medication, I think it reasonable to allow $10.00 per week for a period of 52 weeks after the subject motor accident, an amount of $520.00. Therefore, the past out-of-pocket expenses to be allowed are $2,405.70.

41 As to future expenses, the claim was for $15.00 per week for medication; otherwise no medical or similar treatment was envisaged. It is true that Dr Wan recommended a multidisciplinary rehabilitation programme costing $8,000 with $2,000 for reviews by a rehabilitation physician. However, on the medical evidence I have accepted such treatment is not called for as a consequence of the subject motor accident. As Dr Sekel concluded, the plaintiff’s condition was now at its pre-accident state. No allowance, therefore, will be made for the future.

42 Economic loss: Counsel quantified this claim, for both the past and the future, as buffers in the amounts respectively of $16,000 and $150,000 based on a net weekly wages loss of approximately $200.00 to $250.00 per week. The defendant’s response was simply that no loss had been suffered by the plaintiff who was now, since May 2006, earning more than he ever earned before.

43 The plaintiff’s earnings before the motor accident were extremely modest due to the 2002 work accident and the 2003 motor accident; he was unemployed at the time the motor accident occurred and did not obtain suitable part-time employment until May 2006. Nevertheless, my view of the evidence is that he thereby suffered a temporary aggravation of his pre-existing condition which, for a period of, say, six months, deprived or impaired his earning capacity. Counsel for the plaintiff put that loss at $250.00 per week. Given, as found, that the effects of this motor accident have resolved to the point where the real incapacity results from the 2002 work accident and the 2003 motor accident, I think a fair approach would be to allow past economic loss for deprivation of earning capacity from the 2005 motor accident for a period of 12 months in the amount of $200.00 per week – the resultant amount to allow is $10,400.00.

44 As to the future, I cannot see any loss consequent upon the 2005 motor accident and, so, no allowance will be made.

45 On the past economic loss I would allow an amount for lost superannuation, calculated at 9 per cent of the gross loss being, approximately, 11 per cent of the net loss, that is, $1,144.00.

46 Gratuitous attendant care: An amount for this element of domestic care was claimed for both the past and the future based on seven hours per week for gratuitous care or, in the alternative for the future, three hours per week of paid commercial assistance.

47 Prior to the subject motor accident the plaintiff’s fiancée was providing some of the domestic services he had earlier done himself due to the effects of the 2003 motor accident. By February 2005 that care had reduced to one-half an hour to one hour daily over seven days; then, after the subject motor accident it increased to one or two hours daily. This claim is governed by s 128 of the MAC Act.

48 I think it reasonable to accept as a result of the subject motor accident the provision of gratuitous domestic care in the amount it increased by from that time for a period of 12 months, that is, one hour per day or seven hours per week. Therafter, and certainly from December 2007 when they were married, the plaintiff’s wife said she would have provided the care regardless of the effects on him of the motor accident (see s 128(2) of the MAC Act). In any case, on the medical evidence care was no longer required.

49 I calculate the loss for this element at $7,644.00 being seven hours per week for 52 weeks at an hourly rate of $21.00.

50 Summary of damages: The damages I will allow are $2,405.70 for past out-of-pocket expenses, $10,400.00 for past economic loss, $1,144.00 for lost superannuation and $7,644.00 for past gratuitous domestic care. The total is $21,593.70.

Conclusion

51 The defendant negligently breached his duty of care to the plaintiff in the February 2005 motor accident and is liable to him for the consequent loss and damage suffered. In that respect, damages are assessed in the sum of $21,593.70 less $1,343.00 in respect of out-of-pocket expenses already paid by the defendant - the net amount of damages is therefore $20,250.70.

Orders

52 The plaintiff is entitled to a verdict against the defendant in the amount of $20,250.70. The parties will be heard on costs before final orders are made.

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