Samir Mahmoud Dib v Kallie Doxaratoras - [2018] NSWDC 26

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Samir Mahmoud Dib v Kallie Doxaratoras [2018] NSWDC 26
Hearing dates: 31 July, 1 – 4, 7 – 11, 14 – 18, 21 August, 15 September 2017
Date of orders: 09 March 2018
Decision date: 09 March 2018
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
1.    Verdict for the plaintiff against the defendant.
2.    The defendant to pay to the plaintiff damages in the sum of $39,105.92.
3.  Defendant to pay the plaintiff’s costs.

Catchwords: MOTOR ACCIDENT – Whether staged motor vehicle accident
DAMAGES – whether MAS Certificate of Assessment of permanent impairment binding as to causation where different facts found
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B(1)(e), 3B(2)(a), 5D
Evidence Act 1995 (NSW), s 140
Motor Accidents Compensation Act 1999 (NSW), ss 58, 61, 119, 126, 131, 148
Uniform Civil Procedure Rules 2005 (NSW), 14.4, 15.3, 15.4
Cases Cited: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Cummins v Cummins (2006) 227 CLR 278
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Mutual Community General Insurance Pty Ltd v Khatchmanian (2013) ANZ Insurance cases 61-974; [2013] VSCA 144
Palmer v Dolman [2005] NSWCA 361
Penrith City Council v Parkes [2004] NSWCA 201
Permanent Trustee v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514; [2003] HCA 25
Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328
Pham v Shui [2006] NSWCA 373
Rodger v De Gelder [2012] NSWCA 167
Sharma v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWCA 307
State of New South Wales v Talovic [2014] NSWCA 333
Strong v Woolworths Ltd T/as Big W (2012) 246 CLR 182; [2012] HCA 5
Trustees of the property of Cummins v Cummins (2006) 227 CLR 278
Zorom Enterprises Pty Ltd v Zabow and ors [2007] NSWCA 2016
Texts Cited: Principal judgment
Category: Principal judgment
Parties: Samir Mahoud Dib (plaintiff)
Kallie Doxaratoras (first defendant)
Insurance Australia Limited trading as NRMA Insurance (second defendant)
Representation:
Counsel:
Mr F Curran (plainitff)
No appearance (first defendant)
Mr G Watson SC with Ms S Warren (second defendant)

File Number(s): 2015/00301730
Publication restriction: None

judgment

Nature of Claim

The plaintiff claims that on the 20th March 2012 he suffered injuries in a motor vehicle accident resulting in significant ongoing pain in his neck, left shoulder and low back, mental harm and significantly impaired capacity to earn income. He sues for damages.
The first defendant has not participated in the proceedings. The second defendant, Insurance Australia Limited, as the Motor Accidents Compensation Act 1999 (MACA) insurer, denies that the motor vehicle collision occurred in the circumstances alleged by the plaintiff and denies that the plaintiff suffered the injuries, loss and damage alleged. The second defendant defence says that the motor vehicle collision was staged and that the plaintiff’s claim is fraudulent.
The second defendant insurer was joined to the proceedings prior to the hearing as a party by orders resulting from its Notice of Motion brought pursuant to s 119 MACA.
The fraud is pleaded in paragraph 4 of Amended Defence filed 24 May 2017. The Second defendant says that any contact between the vehicles was not forceful and that the plaintiff organised or participated in an arrangement to make it appear that there had been forceful and accidental contact between the vehicles for the purpose of facilitating false and exaggerated claims in order to dishonestly obtain a financial benefit.
The defendant pleaded the following particulars:

(Amended Defence [4] particulars):

At the moment of impact the first defendant’s vehicle was stationary.
The plaintiff took no action to avoid the collision.
The plaintiff has used the circumstances to make a claim based on false and exaggerated injuries and manufactured false and exaggerated economic loss claims.
The first defendant made a false claim for insurance cover on her motor vehicle, which was, over-insured.

There is no contest that the collision occurred. In the event that the Court determines it was an accident, negligence is conceded. There is no defence of contributory negligence.
In paragraphs 11, 12 and 13 of the Amended Statement of Claim (ASOC) filed 30 May 2016 the plaintiff pleaded that the second defendant wrongfully pursuant to its contractual obligations and in breach of the applicable statutory insurance policy refused to indemnify the first defendant. The particulars are voiced in a failure to accept assertions and allegations by the plaintiff and by the first defendant. Counsel have not voiced argument as to the adequacy of pleading. The issues between the parties are plain. Otherwise, the issue of whether the second defendant erred in the exercise of its discretion to deny indemnity is plainly traversed by the pleading. The hearing was not run on the basis of some style of contractual or insurance law principle cause for relief.

Absence of the First Defendant

From commencement and throughout the hearing the Court directed attention to the absence of the first defendant.
At the commencement of the hearing, the matter was called outside the Court but there was no appearance of Kallie Doxaratoras, the first defendant. Both parties pressed for the hearing to proceed in the absence of the first defendant. The second defendant undertook to the Court that by the matter so proceeding, the second defendant would wholly indemnify the first defendant for any adverse order including as to costs.
I agreed, in the interests of efficiency of the proceedings and in the interests of justice, pursuant to the overriding purpose, ss 56 – 61 Civil Liability Act 1999 (NSW) (CLA) to so proceed. I informed the parties however that in the event the first defendant sought to appear and be represented when the matter was part-heard; then, I may have to recuse myself and the matter may have to be heard before a different judge.
The second defendant informed the Court that the first defendant had been subpoenaed to attend to give evidence, that inquiries of her in relation to her non-attendance were being made and that affidavit evidence of that would be tendered. The hearing commenced.
Over several days of the hearing the Court was informed of the second defendant’s efforts to achieve the first defendant’s attendance to give evidence and the matter was repeatedly called outside the Court but the first defendant did not appear.
On Day 6 of the hearing, the second defendant made application for the issue of a warrant for the arrest of the first defendant and that she be brought to Court for the purpose that she give evidence. Following a Voir Dire, I made the following orders

1. I direct the second defendant to cause to be delivered, not later than 5pm, 7 August 2017, at 13/21-23 Early Street, Parramatta a letter addressed to Kallie Doxaratoras, informing her that in District Court of New South Wales, proceedings number 2015/0301730, are brought by Samir Dib against herself and Insurance Australia Limited, trading as NRMA Insurance. Unless she attends the District Court of New South Wales, Court 13C, John Maddison Tower, 86 Goulburn Street, Sydney between 10am and 2pm on Tuesday, 8 August 2017, or alternatively, provides written explanation of cause for her non-attendance which the Court finds satisfactory, a warrant will issue for her arrest to be brought to Court.
2. The defendant is to text to the first defendant, Ms Doxaratoras, the information contained in order (1) above as soon as is practically possible on mobile telephone number 0412 960 829.
3. I order that a warrant for arrest of Kelly Doxaratoras to be brought to Court to attend to give evidence, pursuant to s 97 of the Civil Procedure Act (NSW) lay in the registry until 4pm, 8 August 2017, such arrest and attendance not to occur before 10am, 9 August 2017.

At that middle stage of the hearing I had not been informed by the parties that the first defendant had not been served with the Defence or with the Amended Defence. I was informed of this on Day 14 of the hearing.
On Day 7 of the hearing (8 August 2017), Senior Counsel for the second defendant informed the Court that the above orders had been complied with but that evidence of that compliance and of the first defendant’s response, if any, would not be available until 10:00 am on Day 8 of the hearing. The first defendant did not on Day 7 attend the Court or cause the Court to receive information showing cause for her non-attendance. I directed that the time for the warrant to lie in the registry be extended until 4:00 pm of Day 8 of the hearing (9 August 2017).
Later, on Day 8 of the hearing, Senior Counsel for the second defendant informed the Court that it no longer required the first defendant to be arrested for the purposes of bringing her to court to give evidence and that the second defendant would proceed on the basis of oral evidence in her absence: Transcript Day 8, page 516, line 25 – 30. The warrant was annulled.
Mr Burt, legal clerk, employed by Messrs Curwoods, solicitors for the second defendant, gave evidence of the first defendant contacting him by telephone. The first defendant spoke to him of an anxiety condition which was treated with Valium. Mr Burt’s evidence included that the first defendant threatened that if she was arrested to come to Court, she would self-harm: Exhibit 33 is Mr Burt’s file note of the conversation. Senior Counsel for the second defendant informed the Court that it was on the basis of that information that the second defendant considered it inappropriate for it to further press for arrest of the first defendant to be brought to Court to give evidence.
Whilst the second defendant conceded that the first defendant was not an unavailable witness; it was agreed between the parties that the second defendant had done all that was reasonably practical for it to do to obtain the oral evidence in the hearing of the first defendant save for the issue of the warrant.

Fraud and Significance of the Absence of the First Defendant

The second defendant puts into evidence versions of how the collision occurred, provided by the first defendant when she made her statement to the police (Exhibit C), during a record of interview with insurance investigator Mr Flinders on 2 May 2012 (Exhibit 31) and in her Statement of Evidence made 25 February 2013, tendered in Local Court proceedings brought by her against the second defendant (Exhibit 29) and transcript of her oral evidence in those Local Court proceedings on 2 May 2013 (Exhibit 30).
In closing the second defendant submitted that the documented evidence in the first defendant’s statements was false. It was put that she was “an unreliable witness”: Transcript Day 11, page 718, line 24.
The second defendant put its case on the basis that the first defendant was complicit in the fraudulent staging of the motor vehicle accident: Transcript day 11, page 718. The second defendant put the first defendant’s motive to have participated in fraudulent staging of the motor vehicle “accident” as her opportunity to claim the insured Agreed Value of $32,000 for her Honda motor vehicle, when she had purchased it for about half that sum: Amended Defence paragraph 4(e)(iv).
The second defendant’s closing submission was that the first defendant’s participation in the fraudulent staging of the motor vehicle collision was organised or managed through her close friend Mr Bessounian and that the plaintiff’s participation in the fraudulent staging of the motor vehicle collision was organised or managed through his friend Mr Baranowski.
The next step in the defendant case was to put that Mr Baranowski’s and Mr George Bessounian’s involvement in other motor vehicle accidents should be accepted as establishing that they organised motor vehicle accidents in order to benefit from the making of insurance claims for property and personal injury damages and for Mr Baranowski to benefit through his business, Ken Stokes Smash Repairs receiving consequent motor vehicle repair business. It says the plaintiff and the first defendant were complicit in the staging of the subject “accident” with Messrs Baranowski and Bessounian.
The hearing was conducted mainly in dispute of this conspiratorial fraud allegation which was not pleaded.
It is a weighty matter for the Court to ensure natural justice and procedural fairness for the first defendant in this case because the second defendant seeks a judgment finding that she participated in a fraud in the circumstances where she was not represented and did not give evidence in the hearing.
During the defendant’s closing submissions I requested proof that the first defendant had been served with the Amended Defence or was otherwise aware of the allegations of fraud made against her in these proceedings. It was important for the Court to know whether or not the first defendant elected not to be represented and not to give evidence in defence of a case alleging her fraud.
The second defendant’s immediate response was that the first defendant would know because, in Local Court proceedings No. 2012/249638 which were determined in 2013 and in which the first defendant was plaintiff and the second defendant was defendant; the second defendant denied that the motor vehicle collision was accidental.
During the hearing of those proceedings on 2 May 2013, the first defendant was challenged as to whether she was “really” in the Honda motor vehicle, to which she replied, the question was “highly offensive” and that she “was in that car”: Exhibit 30, page 71, lines 36 to 46.
These are different proceedings. The plaintiff was not a party in those Local Court proceedings. The evidence of those Local Court proceedings shows that the first defendant attended Court and gave evidence denying elements of fraud which are alleged by the second defendant in these proceedings. Those elements included how her Honda was driven to the collision and, as above, whether she was even in the Honda during the collision
Other factual allegations were pursued by the second defendant in the evidence in this hearing. The second defendant during this hearing ran its case challenging that neither the plaintiff nor the first defendant were in their respective motor vehicles. In this regard, the second defendant relied on the evidence of Mrs Nakhoul that she saw two or three darkly clothed individuals running from the scene. There is no evidence that Mrs Nakhoul gave evidence in those 2013 Local Court proceedings. There is no evidence that the first defendant is aware of Mrs Nakhoul’s evidence.
Pleadings in those Local Court proceedings and a letter to the first defendant from the second defendant dated 12 July 2012 were admitted into evidence in these proceedings (Exhibit 32).
Within that Exhibit was a letter dated 12 July 2012 from the second defendant to the first defendant (plaintiff there) explaining that, in the second defendant’s (defendant’s there) view she had provided false and misleading statements concerning the motor vehicle collision, that she insured the vehicle for the value of $32,000 at its Ryde office when in the initial telephone inquiry she indicated that she would insure it for $20,000, that a witness had informed the second defendant that persons were seen running from the incident and that the insurer had determined to deny indemnity according to the plaintiff’s false and misleading statements and a breach of duty of good faith under ss 13, 56 and 54 of the Insurance Contracts Act 1984 (Cth). Nevertheless, on 10 August 2012 the first defendant filed a Statement of Claim seeking from the second defendant recovery of property damage at the agreed value of the car. Those are the proceedings in which the first defendant, as plaintiff, provided the above referred to Statement and gave the above referred to oral evidence.
Counsel for the plaintiff, in my view, properly identifies that the Exhibit 32 documents, and I would add the Exhibit 30 transcript of the first defendant’s evidence as plaintiff in the Local Court proceedings, do not identify the allegation of her conspiratorial participation with Mr Bessounian, Mr Baranowski and the plaintiff in the staging of the motor vehicle “accident”. That allegation is the core of the case that the second defendant makes in this hearing.
In my opinion that the first defendant did attend and give evidence in that way in those proceedings, is not consistent with and on balance is against the proposition that she would concede an allegation of fraud against her in these proceedings.
Specifically it is against her conceding that the collision was not an accident. I cannot know whether the first defendant’s unwillingness to attend is not based on her claim of anxiety state, or on an understanding that (even if she is aware that she is a party named in the proceedings), her participation is only sought as a witness for the second defendant in the plaintiff’s claim for personal injuries damages.
On day 14 of the hearing the plaintiff and the second defendant informed the Court that:

The Amended Statement of Claim was served on the first defendant by post only pursuant to s 222(1)(a)(iii) MACA. I need not determine whether postal service sufficed (UCPR 10.20) because the Amended Statement of Claim did not include the allegations of fraud.

The first defendant had never been served with either the Defence or the Amended Defence.

Even had she been served with the Amended Defence, (I repeat) the case run at hearing by the second defendant of her conspiratorial fraud, was not pleaded in these proceedings.
In these proceedings even if the first defendant was aware of the second defendant’s allegations involving her having made false and misleading statements, in the detail contained in Exhibit 32 and in the Exhibit 30 Transcript in those Local Court proceedings conducted between the 2012 and 2013; there is no evidence upon which I am able to find that the first defendant was aware of the allegations involving her in the fraud sought to be proved by the second defendant in these proceedings.
In these proceedings the second defendant concedes that in order for it to succeed on its case that the motor vehicle “accident” was staged, it is necessary for the Court to find that the first defendant was complicit in that staging: Transcript day 11, page 718, lines 26-30. The exchange in this part of the transcript occurred before the Court was informed that the first defendant had not been served with the Defence or with the Amended Defence. The second defendant submitted that the Court should find the first defendant to be an “unreliable witness” (transcript day 11, page 718, line 23) in a case where she did not give evidence and could not have been aware of the allegations of her participation in a conspiratorial fraud being made against her.
In my opinion it does not follow that even had the second defendant defended the proceedings brought by the first defendant as plaintiff 4 years ago on the same basis of conspiratorial fraud organised between Messer’s Baranowski and Bessounian in which the plaintiff here and the first defendant here (plaintiff there) 4 years ago were complicit, it would be assumed that the first defendant knows that the second defendant presses those allegations in these proceedings. The plaintiff here was not a party in those proceedings.
Section 119 MACA provides procedurally for the insurer to be named as a party in the proceedings and to participate as if an intervener. It does not resolve the above stated weighty consideration of the Court being invited by the subrogated insurer (second defendant) to enter a judgment for fraud against its insured (first defendant) in the proceedings defended by her subrogated insurer (the second defendant) and where the first defendant has not been served with a pleading alleging the fraud sought to be proved against her by her insurer (second defendant) or participated in the proceedings.

Section 119 does not affect the substantive rights at issue. The second defendant’s entitlement was to exercise all its powers directed to showing that the first defendant was not liable for the plaintiff’s claim. Nevertheless, there is a distinction between the second defendant’s role as intervening defendant and the first defendant’s rights as a party: Vale v Vale [2001] NSWCA 245. That the second defendant is a party does not diminish the independent right to natural justice and procedural fairness to which the first defendant is entitled.
Even had the first defendant been served with the Defence and Amended Defence, the high point of pleading of fraud against her was as stated at [4] particulars of the Amended Defence (set out above). Those particulars were confined to allegations that the first defendant’s vehicle was stationary and that she made “a false claim for insurance cover on her motor vehicle, which was, over insured”.
In my opinion, the second defendant, when proceeding on the Amended Defence, in order to make the case that the first defendant was complicit in fraud of the nature run at the hearing and in regard to which it seeks judgment; was obliged to serve the first defendant with a pleading specifically describing her alleged participation with Mr George Bessounian, Mr Baranowski and the plaintiff in the staging of the motor vehicle collision. There is nothing before me to indicate that had the first defendant been served with an Amended Defence specifically pleading those matters, she would not have been taken by surprise: UCPR 14.14; UCPR 15.3; UCPR 15.4. Those specific matters, material to the allegation of the first defendant’s fraud in relation to which the second defendant seeks judgment needed to be and were not “clearly and distinctly pleaded” and in the absence of her having her rightful opportunity as a party served with a pleading particularising a case of fraud against her, those specific matters were not put to her and she accordingly did not have the opportunity of denying them: Permanent Trustee v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514; 197 ALR 364; 77 ALJR 1070; [2003] HCA 25 at 38.
For the above reasons, judgment of the effect that the first defendant was fraudulently complicit in the staging of the collision is not available. Whilst the second defendant concedes the result of this finding is that it cannot succeed in the defence on liability, it is appropriate to consider the whole of the evidence on liability in case I am wrong.

Background

The plaintiff was born on the 2nd March 1972. He was 40 years of age at the date of the motor vehicle accident and he is now 45 years of age. He grew up in Lebanon and did not complete secondary schooling there. He worked as a spray-painter in Lebanon. Between 1990 and 1994 the plaintiff operated his own spray-painting business whilst living at home with his parents.
On 11 July 1994 the plaintiff first came to Australia on a holiday to visit his brother. On 14 October 1994 he was granted permission to remain in Australia. Between 1994 and 2000 when the plaintiff applied for refugee status and while he was resident in Australia, he met and married his wife Mona and worked as a spray painter. Once engaged to Mona, the plaintiff was permitted to remain here through several grants of permission. He was granted a permanency visa on 24 October 2000.
From July 1999 until early 2000 the plaintiff worked part-time as a spray-painter for Ken Stokes Smash Repairs (Exhibit 6). During that period his son Mazen, who is now 17 years of age and his daughter Mariam, who is now 16 years of age, were born.
Between 29 October 2002 and 19 November 2002 the plaintiff worked as a labourer for three weeks for Toll.
Between 12 November 2002 and 2004 (Transcript, day 1, page 60, line 5) the plaintiff worked full-time for Tip Top Bakery. The evidence is inconsistent as to whether the end date was 2003 or 2004.
The plaintiff has been receiving Centrelink payments ever since terminating his employment with Tip Top Bakery. Initially he received a Disability Pension and at some time his payments converted to Newstart but on the basis that he was not required to work. He qualified for Centrelink payments because of a permanent anal fistula condition.
On 4 October 2007 the plaintiff’s third child, a daughter named Sera who is now 10 years of age was born.
The plaintiff claims, and the second defendant disputes, that between 2008 and 2009 he was employed on a casual basis by SGC Joinery Pty Ltd as a carpenter/joiner by the proprietor of that business Mr Chadi Al-Tawil.
On 29 June 2010 the plaintiff’s fourth child, a daughter named Selena, who is now 7 years of age was born.
On 28 December 2010 the plaintiff attained a Certificate II Security Operations from Sydney Training Academy Pty Ltd.
On 19 March 2011 the plaintiff attained a First Aid Certificate from Sydney Training Academy Pty Ltd.
In April 2011 the plaintiff was issued with a Queensland Security Licence.
On 5 May 2011 the plaintiff made application for a Security Licence to the New South Wales Police Force, which licence was issued in July 2011 and the plaintiff performed some work as a security guard on a casual basis at football games.
Between about November 2011 and January 2012 the plaintiff remained in Lebanon. The evidence is not precise as to the dates or length of that stay.
On the plaintiff’s case in early March 2012 he was offered and accepted full-time employment as a carpenter/joiner with SGC Joinery Pty Ltd of 8-20 Carlingford Rd, Sefton New South Wales by Chadi Al-Tawil to commence on 2 April 2012 at an hourly rate of $30 and an overtime rate of $40. This is hotly contested by the second defendant.
The subject motor vehicle collision occurred on the 20 March 2012.
On 22 March 2012, the second day after the collision, Mona and the couple’s four children travelled to Lebanon to visit family and did not return until 1 June 2012.
The plaintiff has not worked since the motor vehicle accident.
For convenience, and meaning no discourtesy, I refer to the plaintiff’s wife, Mrs Mona Dib as Mona.
At the time of the motor vehicle accident the plaintiff lived in the matrimonial home at 20 Mons St, Granville with Mona and their children.
The plaintiff and his wife Mona gave evidence that her role in the family included handling insurance claims, dealings with lawyers, attending specialist medical appointments with the plaintiff and other matters requiring her better English language and literacy skills.
Mona was born and educated in Australia.
The plaintiff and Mona maintained separate bank accounts.
Mona displayed far better recollection of events in the witness box than did the plaintiff. Each of the plaintiff and Mona gave evidence that he suffered significant forgetfulness. They timed the onset of that condition with the motor vehicle collision.
A fundamental plank of the second defendant’s case upon which it submits the court should find that the collision was staged and that the plaintiff’s claims for personal injury damages is fraudulently brought is that the evidence of the plaintiff and witnesses in the plaintiff case was so lacking in credit that the court will not accept the plaintiff’s evidence that the collision was accidental. In order to examine that proposition it is required to consider the credit and reliability of each of those witnesses. Messrs’ Baranowski and Bessounian were significantly cross-examined by the second defendant regarding their relationship with each other including a history of motor vehicle collisions and motor vehicle repair and personal injury claims on insurers and their relationships with the plaintiff and with the first defendant. The plaintiff, Mona, his sister Rola Dib and his brother Mohamed Dib gave evidence in relation to the plaintiff’s claim for damages. Only the plaintiff gave oral factual evidence of the motor vehicle collision.

These reasons approach some topics of evidence separately with a view to assessing reliability and credit of witnesses as well as to particular passages of evidence of witnesses.

The Plaintiff’s Anal Fistula

The plaintiff’s anal fistula condition is of significance in the case. This is because whereas the plaintiff claims that but for the motor vehicle accident he would have worked full-time to retirement, he had received Centrelink payments on account of his fistula condition and not been employed to any significant extent for 8 years preceding the motor vehicle accident.
Medical treatment for his anal fistula included initially a significant surgery cutting that sensitive part of his anatomy and over the pre-collision period until 12 March 2012, just before the motor vehicle accident, he underwent a total of ten surgeries to drain pus from the fistula.
Each of the plaintiff and Mona initially said that preceding the motor vehicle accident, the plaintiff’s fistula condition did not significantly interfere with his capacities. They gave the following evidence in that regard:

PLAINTIFF IN CHIEF
Q. During those years, you were continuously in receipt of Centrelink benefits from the Commonwealth Department of Social Security?
A. INTERPRETER: Yes.
Q. Up until March of 2012, had you ever had any prior motor vehicle accidents or work accidents or accidents of any significance, giving rise to injury?
A. INTERPRETER: Not.
Q. You, of course, had had the serious fistula condition for which you had had numerous surgical procedures? Is that so?
A. INTERPRETER: Yes.
Q. By March of 2012, the month of the subject motor vehicle accident in these proceedings, by that time how were you managing the fistula condition?
A. INTERPRETER: It was good.
MONA
Q. … Now, of course, at some earlier time after your marriage, Mr Dib had been diagnosed with the anal fistula.
A. That's right.
Q. Do you recall when he was diagnosed with that complaint?
A. I believe it was also - it'd be about 2003, late 2003.
Q. Did that appear to be of any great trouble to him?
A. No, he - the first operation was a pretty deep cut, so obviously the first time and that it was a shock. You would get shocked when you find out you've got something like this and that. But he - he was fine. Initially, he did the operation and then he recovered from it. Like it didn't change anything. He didn't get into depression, you know, he was normal. He just - he took the required time to let the wound heal and then he was up and going again. So, it didn't really affect him in any way.

Mona showed reluctance conceding that the plaintiff remained on Centrelink payments on account of the fistula for the whole of the period of 8 years prior to the motor vehicle accident and continuing at the date of the hearing. Cross-examination exposed her concession that in fact the only interruption was for a period of 1 – 1 ½ years during 2014 - 2015 when Centrelink payments ceased to both the plaintiff and to Mona whilst she was audited on account of her failure to declare that she was operating her then business as a licenced conveyancer.
During cross-examination Mona gave the following evidence which conceded the plaintiff’s incapacity for work because of his anal fistula condition:

Q. What were the different things, if there were different things, which meant that your husband was disabled from working?
A. Initially it was because of the fistula. When he did the big operation, they took a whole chunk out of his bottom, and it took some time to recover from that. Then he had the regular tubes at hospital to get that drained. So we used that. That was his reasoning to give him a chance to recover from that.
Q. That was initially why he was disabled and unable to work. Why was he later on a disability pension? What was wrong with him?
A. It was always the fistula. After the accident it was a different story.
Q. We've got some evidence that Mr Dib was on a disability pension as at the date of the accident. So right up until the very moment of the accident, he was on a disability pension, by the looks of things. Do you agree?
A. Yes.
Q. That disability pension was being paid to him on the basis that he was incapable of working, wasn't it?
A. Yes.
Q. Because he was so badly troubled with the anal fistula.
A. Yes.
Q. That had been something which had led to him having at least ten operations on his rectum. Correct?
A. Yes.
Q. He had been in and out of hospitals seeking surgical repair of the fistula.
A. They would call him in to drain the pus and to change the..(not transcribable)..that they kept in there.
Q. I think you're agreeing with me. He had been in and out of hospitals looking for a surgical repair of the fistula.
A. It can't be repaired. He is aware of that. So he could go in and out, and there were about ten times that he went in there, but we knew it could never be fully repaired.
Q. It was a long-term serious problem for him.
A. Yes.
Q. Which, at the very moment of the accident, had meant that he was disabled and incapable of working, correct?
A. He was going to - he was actively looking for work. He wanted to find something.
Q. Was he getting a disability pension or not?
A. He was receiving a pension, yes.
Q. Right as at the moment of the accident, for some long time, he'd been disabled from being able to work by the anal fistula, correct?
A. Correct.
Q. And it was a condition, which as you've just said, was one where it was just not going to be possible to correct it?
A. No. And he was fine with that. So, he's, you know - he got used to it.
Q. He's got it for the rest of his life.
A. Yes.

The plaintiff’s evidence, as he put it at one point, that he was physically “100%” prior to the accident flares strikingly against Mona’s oral evidence in cross-examination, his own evidence of having been on the disability pension and Newstart from 2003 due to his suffering from his anal fistula and clinical medical records. When in cross-examination it was put to him that it was untrue that he was “100%” physically prior to the motor vehicle accident, the plaintiff responded that he did not have his present pain and that even with his fistula condition he was “good”. He said that he did not recall Dr Abdalla advising him on 27 January 2012 that his fistula was not improving. When he was challenged that he had told doctors that the fistula caused him a lot of pain, the plaintiff gave the following evidence:

Q. You see, the anal fistula had put you on the disability pension, hadn't it?
A. INTERPRETER: Yes, maybe.
Q. Maybe? What else had put you on the disability pension? Was there some other reason?
A. INTERPRETER: They haven't given me the pension.
Q. I want to read to you from some of the reports. The doctors who treated you for the fistula said you'd complained that it caused you a lot of pain. Would you accept that?
A. INTERPRETER: Fistula didn't make any big pain.
Q. The document I'm looking at suggests the pain was so bad that you were given oral narcotic analgesic medication. Would that be right?
A. INTERPRETER: They didn't give me sleeping pills for the fistula.

The clinical notes of the plaintiff’s treating general practitioner Dr Abdalla (Exhibit T, p 106-120) show regular treatment for the plaintiff’s fistula including referral for specialist treatment and correspondence with Centrelink. The Cumberland Hospital clinical notes from the plaintiff’s admission to Auburn and subsequently Paringa at Cumberland Hospital between 11 and 13 July 2012 (Exhibit T, p 121-178) include (at p 150) the following record:

Patient well apart from fistula.

Fistula:

Affects a lot of things

Sometimes a lot of pain

Blood and yellow stuff comes out

10 years

The same over a long period”.

It is common ground that the plaintiff underwent his tenth surgery for his fistula on 12 March 2012. The objective evidence of Centrelink payments for the period of 8 years preceding the motor vehicle accident, the sparsity of employment in his historical factual history, the nature of his anal fistula ailment requiring repeated medical care and surgery on 10 occasions, that whilst receiving Newstart benefits he was relieved of the obligation to find work because of his condition, the preferred evidentiary value of the objective clinical medical history evidence and the obvious inconsistencies in the oral evidence of the plaintiff and of Mona parts of which are quoted above; overwhelmingly point to the conclusion that despite claims in oral evidence to the contrary, the plaintiff was unfit for regular employment at the date of the motor vehicle collision, which diminished earning capacity continued according to the permanence of his anal fistula condition.

Employment with SGC Joinery

A pillar of the plaintiff’s claim for economic loss is his claim that about a month prior to the motor vehicle accident on the 20th March 2012, he accepted an offer of full-time employment from Mr Al-Tawil to commence on 2 April 2012. The plaintiff relies on a document tendered by the second defendant (Exhibit 3) being a letter on the letterhead SGC Joinery dated 5 March 2012 as containing that offer. The plaintiff Schedule of Damages quantified his economic loss claim at $673,000.
The plaintiff claimed that between 2008 and 2009 he worked in a business called SCG Joinery Pty Ltd, the proprietor of which business was Mr Chadi Al-Tawil. He said that he met Mr Al-Tawil through a cousin. His evidence was that he was employed as a carpenter/joiner. He described his work as manufacturing kitchens within the factory, driving the truck which delivered them and as one of two workers, installing those kitchens at the client’s home, for the lower cabinets, levelling them to the floor and then installing them and for the wall cabinets holding them to the wall with the other worker and screwing them to the wall. He said that the work was part time and that he was called in when a worker was not available and when the level of work required it.
The plaintiff said he had been required to work on any of the days Monday to Saturday of the week and that he worked 1, 2 or no days per week:

Q. What hours did you work?
INTERPRETER: Sometimes one day a week, sometimes two days a week, sometimes nothing.
Q. When you are paid, were you paid in your name?
INTERPRETER: He said he used to give it to him on his hand because he wasn't permanent. He told him when you are permanent then I'll pay you through the account.
WATSON
Q. Are you say you get paid cash in the hand?
A. INTERPRETER: Yes.

When asked whether he had told Centrelink about the employment the plaintiff’s answer was that he told them “sometimes”: Transcript day 2 page 79, line 19. He did not receive group certificates from SGC Joinery. He said that he worked with them “for a short period not a long time”: Transcript day 2, page 79, line 22. The factory was in Sefton but he could not recall the street name.
Mr Al-Tawil’s evidence was that prior to March 2012 the plaintiff worked for a total of only about 9 to 11 days whilst another employee was on holidays.
Mr Al-Tawil, the signatory of the 5 March 2012 letter, gave evidence on day four of the hearing. In cross-examination the second defendant put to him that he did not make an offer to the plaintiff on or about the 5th March 2012 and that the letter was subsequently created by him on the plaintiff’s request in 2014. Mr Al-Tawil insisted that the letter and the offer of employment were genuine.
The 5 March 2012 letter is signed by Mr Al-Tawil (spelt in the letter AlTawil). It is on letterhead “SGC Joinery”. In the top right hand corner is a box containing contact details of Sydney Granite Centre. SGC Joinery Pty Ltd was a company first registered by Mr Al-Tawil on 2 April 2012, that is approximately one month after the date of the letter.
In cross-examination Mr Al-Tawil detailed that he had commenced in business 19 years ago, working with stone and his business was originally named Sydney Granite Centre. His business turned to prefabricated joinery, in particular kitchens, and he determined to operate under the name SGC Joinery from 2 April 2012.

Mr Al-Tawil further said that because he wanted to start the plaintiff’s employment under a new company and in the new quarter of the financial year, the offer which he advanced the plaintiff was for him to start on 2 April 2012, as expressed in Exhibit 3.

In cross-examination the following questions challenged Mr Al-Tawil’s evidence of him drawing a letter of offer of employment under his business name before the company commenced:

Q. And let's just have a look at something else in the letter. In the first line, SGC Joinery was making the offer.
A. That's right.
Q. That was an offer being made by an entity which did not exist.
A. That's right, because I planning to register this business. I agree with you.
Q. Just a moment ago, I thought you volunteered, irrespective of the question, something about the need to have made it on behalf of Sydney Granite Centre, and you pointed to the letterhead, didn't you?
A. No, what I said - I said I'm opening this business, and I picked the letter from every this, and wasn't registered on this date. That's what I said here. He - he can't start before 2 April, which is the day I'm going to register this business.
Q. Let me just put something to you. That proposition is entirely consistent with you drawing up a letter - let's just think about it for a moment - a year or two later, maybe in 2014, and inserting the date 2 April 2012 because you knew that the company didn't exist before that date
A. Of course not.
Q. don't you agree?
A. I don't do that, mate.
Q. Well don't you think, by the way, just having a look at it, it looks a bit fishy to have a letter with a letterhead of an entity that doesn't exist?
A. To me - to me
Q. Is that a bit fishy, do you think?
A. To me - I - that's what you think. But to me, this - this name I already wanted it because it's the first letter of every letter of my old business, and I'm creating this business.

Mr Al-Tawil gave evidence that since 2008 he and the plaintiff had regularly met for coffee and sweets, which were brought to his office at Sydney Granite Centre by the plaintiff. His evidence was that before the motor vehicle accident he enjoyed the plaintiff’s company because he would come by telling jokes. On the evidence, these meetings at Mr Al-Tawil’s factory office occurred with approximately a monthly frequency but with interruptions of up to six months on occasion.
Mr Al-Tawil said that when they met for coffee and sweets in early March 2012, Mr Al-Tawil had not seen the plaintiff for close to a year: Transcript day 4, page 276, line 39. The plaintiff then asked him for work and Mr Al-Tawil said that he told the plaintiff that he was starting a new company and that he was happy to take the plaintiff back on. Whether it was at the same meeting, or another meeting, Mr Al-Tawil said that he handed the letter offering employment dated 5 March 2012 (Exhibit 3) to the plaintiff personally. He gave the following evidence of their conversation at that time:

Q. At the time when you handed it to him, did you read the letter to him or did he read the letter to himself or what happened?
A. No, no. I just gave him the letter.
Q. Did you speak about the actual offer?
A. Yeah. I told him. He asked me, "How much am I going to get paid?" I told him he would get paid that much. "If you do overtime, it will be time and a half" and things like that. I told him, "I can give you full-time work."
Q. What did he say when you made that offer to him?
A. He said, "Beautiful. When can I start?" I said, "You can't start before 2 April." Then he said, "Is there going to be any contract?" I said, "Yeah. There will be a contract when you come back on 2 April. I can't give you a contract now. I can't do any such thing. I will call you before or call me before April and I will tell you what exactly you can start."

Mr Al-Tawil said that he telephoned the plaintiff just a few days before the plaintiff was going to start, to make sure the plaintiff was going to start. He said that he did this because he had experienced newly engaged employees not to turn up. The conversation, as recounted by Mr Al-Tawil, was as follows:

…”He said, "I can't work anymore. I had an accident." I said, "Good luck to you, mate. Sorry to hear that. Thank you very much" and that's where--
Q. The telephone call about the accident - when was that? Are you able to put a date on that?
A. Not exactly - the end of March.
Q. So he did not then turn up to start work on 2 April.
A. No.
Q. After that, did you continue to have any contact with him or not?
A. I called him a couple of times to check up on him, how he was going. That's about it, because he disappeared for a few months. I didn't see him as usual.

The second defendant put to each of the plaintiff and Mr Al-Tawil in cross-examination that the letter offering employment with SGC Joinery dated 5 March 2012 was a fabrication, created for the purposes of advancing the plaintiff’s claim for economic loss damages.
Exhibit 4 is a Statutory Declaration by Mr Al-Tawil dated 17 December 2014. Mr Al-Tawil’s Statutory Declaration provided:

… “[7] On or about February 2012, [the plaintiff] came to my work place and asked me if there was any work for him.
[8] I immediately offered him a full-time position and he accepted.
[9] We agreed that he will commence work in the first week of April 2012 being 2 April 2012.
[10] I contacted [the plaintiff] in March and asked if he could come passed [sic] my office to discuss wages and terms so that I could prepare the Employment Contract.
[11] [The plaintiff] signed his acceptance letter and we agreed that he will sign the Employment Contract on his first day.
[12] [The plaintiff] contacted me at the end of March 2012 and informed me that he was involved in a car accident and is suffering from major back and neck pain and he was unable to commence work as planned.”

There are features worthy of concern with Mr Al-Tawil’s Statutory Declaration including inconsistencies between it and his oral evidence (see [89] and [90] above). They are:

The letter of offer, Exhibit 3, requests the attached copy be signed and returned. Mr Al-Tawil’s Statutory Declaration does not attach the counterpart signed by the plaintiff and that such a document is not otherwise produced, is inconsistent with his paragraph [11]. According to paragraph [11] Mr Al-Tawil would have held the signed letter. This is particularly so given Mr Al-Tawil’s oral evidence was that he handed the plaintiff the letter, Exhibit 3, at his offices.

Mr Al-Tawil’s oral evidence was that he telephoned the plaintiff a few days before 2 April 2012 in accordance with his normal practice to ensure that the worker was to start; whereas paragraph [12] of Mr Al-Tawil’s Statutory Declaration reads that the plaintiff contacted Mr Al-Tawil and informed him that he could not start.

Mr Al-Tawil’s oral evidence was that the plaintiff said only that he had had an accident and he could not work anymore causing Mr Al-Tawil to visit the plaintiff at his home weeks or months later to find out that the accident was a motor vehicle collision and that the plaintiff suffered neck and back pain (Transcript day 4, page 277, line 35); whereas paragraph [12] of Mr Al-Tawil’s Statutory Declaration reads that the plaintiff informed him in the plaintiff’s initial telephone call of the details that he had been involved in a car accident and was suffering from major back and neck pain: Transcript day 4, page 278, line 04.

I observed Mr Al-Tawil carefully. Plainly, if the motor vehicle accident caused the plaintiff to lose permanent employment at the rates set out in the letter of 5 March 2012 (Exhibit 3) of $30 per hour and with overtime $40 per hour the quantum of damages for economic loss in his case would be significant.
One would wonder why Mr Al-Tawil would retain the unskilled plaintiff who had worked for him only about eleven days, four years before as a driver and tradesman’s assistant, at those rates when, his evidence conceded, he could retain apprentice carpenter/joiners for $11.60 per hour.
I found Mr Al-Tawil’s denial of friendship with the plaintiff to be surprising given his description of the plaintiff regularly dropping by Mr Al-Tawil’s office and factory and Mr Al-Tawil giving him time to enjoy coffee and sweets and enjoying his personality and jokes. I further found it surprising that he would deny friendship when he conceded that he continued to meet with the plaintiff after the injury even though he found what he described as the plaintiff’s change of personality and lack of humour to be unpleasant.
Evidence of telephone communication between Mr Al-Tawil and the plaintiff is inconsistent with the evidence given by Mr Al-Tawil and by the plaintiff of their engagement with each other. Whereas their oral evidence, the letter offering employment dated 5 March 2012 (Exhibit 3) and Mr Al-Tawil’s statutory declaration (Exhibit 4) describe telephone communication before and after the motor vehicle accident, analysis of the records of their mobile telephone accounts found no contact between them prior to 10 August 2012: Exhibit 23 – Affidavit of Nathan Burt, 10 August 2017 at [2] and [3].
In cross-examination Mr Al-Tawil displayed a reluctance in conceding that his family had bought and sold motor cars through the plaintiff. I considered his ultimate concessions to be against Mr Al-Tawil’s denials of friendship. A part of that evidence was as follows (transcript Day 4, page 283, line 23 to page 285 line 34):

Q. Have you bought or sold any cars with the assistance of Mr Dib? A. No, I asked him a couple of times. I was going to get a car for my wife because I know he’s got a hobby of these car things so I’ve made a few requests from him like that, things like that, but I don’t know it went through or not. I can’t remember.
Q. I’ll just ask the question again. Have you bought or sold any cars through Mr Dib?
A. No - I - I think so.
Q. I’m going to ask you the question again. Have you bought any cars or sold any cars through Mr Dib?
A. And I told you I think so.
Q. What do you mean you think so? Can’t you answer that yes or no?
A. No, I can’t remember. I buy cars a lot for my own - for my family. I - I love cars. I change cars every six months.
Q. Have you bought cars which have been purchased for you through Mr Dib?
A. I - I might be one or two. I told you.
Q. What do you mean you might? You have, haven’t you?
A. Yeah, I think so. I told you that.
Q. And not only that it’s not one or two, is it? It’s not one or two, is it?
A. No, it’s one or two, no more than that.
Q. What cars were they?
A. I can’t - I think one of them is a Toyota maybe. I can’t remember. You’re talking years ago, mate.
Q. Please keep decorum. I want you to try and direct your mind to this. When was it that you were buying or selling cars using Mr Dib?
A. I can’t recall.
Q. Well, I can tell you that in a courtroom you can’t just brush it aside. You’ve got to try. For example, was it in the last year or two?
A. I haven’t got the exact time. It could be two years. It could be three years. It could be five. I - I can’t remember.
Q. I’m just going to stop there for a second and I’m now going to divide it up. You have organised for Mr Dib to buy cars for you, haven’t you?
A. I asked him a few times if you - I needed a car - “Do you know someone? Do you have this?”
Q. Have you organised from Mr Dib to sell your cars for you?
A. As well I ask him that.
Q. And has he done that for you?
A. Yes.
Q. How many times has he done that for you?
A. Once or twice.
Q. Well, when you say once or twice could it be more often than that, Mr Al Tawil?
A. No, it couldn’t be more often than that. I don’t - I don’t think so.
Q. What about on behalf of other members of your family? Have you organised for Mr Dib to buy or sell cars on behalf of other members of your family?
A. I told my family - I told him my wife and my son are always getting cars.
Q. All right, we’ve dealt with you. How many cars has Mr Dib bought for your wife?
A. I think one or two.
Q. And what about your son?
A. One.
Q. Have you organised for anyone else in your family to have cars bought for them through Mr Dib?
A. I don’t think so.
Q. Why do you get Mr Dib to organise the purchase of cars for you and your wife and your son?
A. Because he always used to talk about cars and he always buys himself cars as a hobby and he said he’s always doing - get them, sell them - and he find them cheap.
Q. So you found him to be able to secure really favourable purchases on your behalf?
A. Yeah.
Q. And on behalf of your wife?
A. Yeah, yeah, mate.
Q. Please don't call me mate. And on behalf of your son.
A. Yes.
Q. And has he sold cars on behalf of your son?
A. Not sold cars behalf of my son. No.
Q. You saying that Mr Dib hasn't sold cars on behalf of your son?
A. In my son's name, not - I doubt it. I can't remember. I don't know what's that got to do with that? You're asking me something that's nothing to do with - with - with me, and it's got nothing to do with this matter. I'm here.
Q. Why did you say that?
A. Because I'm here for two reasons. The guy worked for me before, he did. I offered him a job, yes I did.
Q. What I'm asking you are a series of questions, and unless they're out of line, his Honour, I believe, will tell you you must answer them whether you like it or not. Has Mr Dib arranged to sell cars on behalf of your wife.
A. I said I think so.
Q. The cars that Mr Dib bought on your behalf, you say you can remember a Toyota, but you can't remember what the other or others were.
A. Yeah, I think Toyota, one Toyota, one Golf, or something. Something like that.

Mr Al-Tawil agreed that from August 2012 he and the plaintiff communicated by mobile telephone usually two to three times per week. When challenged that the mode of communication between them by mobile telephone was not evidenced in an examination of mobile telephone records preceding 10 August 2012, Mr Al-Tawil proffered the possibilities of landline use and that they met face to face but could otherwise provide no explanation of the absence of mobile telephone communication: Transcript day 4, page 289, particularly at 40-45.
Only the plaintiff and Mr Al-Tawil gave evidence in relation to the plaintiff’s claim of the loss of opportunity of the work described in the SGC Joinery letter dated 5 March 2012 (Exhibit 3). At the time the offer and acceptance of work is claimed to have been reached, the plaintiff’s fistula continued as a significant impairment. He underwent his tenth surgery on 12 March 2012, only one week after the date of the letter (Exhibit 3). Also to be weighed in consideration of acceptance of the evidence of this part of the plaintiff’s claim is the reliable evidence of the plaintiff’s then solicitor Mr Sayan, that he and his office were unaware of the plaintiff’s claim that he was about to start work at the time of the motor vehicle accident, throughout receiving initial instructions, completing the Accident Notification Form in April 2012 (Exhibit 1), the Motor Accidents Personal Injury Claim Form in October 2012 (Exhibit 2) and until seeking the plaintiff’s instructions for the provision of further particulars of claim to the second defendant in November 2014. I now turn to that evidence. Had the plaintiff on 5 March 2012 received a solid offer of employment to start 2 April 2012 and held a letter of that date confirming it; it would be surprising that Mona was unaware of it. Her evidence quoted at [75] above included that as at the date of the motor vehicle accident he was looking for and wanted to find work.
In regard to large portions of his evidence, particularly during cross-examination, the plaintiff said that he did not recall events. Indeed, he claimed to have suffered a condition of forgetfulness since the motor vehicle accident which caused him greater loss of amenity than did his pain. His evidence was that he attended the offices of Sayan & Associates Solicitors for the signing of Accident Notification Form which was received by the second defendant from Messrs Sayan & Associates on 17 April 2012 (Exhibit 1) and six months later, for completion and signing of his Motor Accident Personal Injury Claim Form (Exhibit 2) dated 8 October 2012. Neither Exhibit 1 nor Exhibit 2 record any mention of the SGC job offer. Indeed, his Motor Accident Personal Injury Claim Form at questions 36, 37, 44, 47 and 48 informed the insurer that the plaintiff was not working before the accident, had not lost income because of the accident and had not made any firm arrangements to start a new job or change his working duties, working hours or earnings before the accident.
The plaintiff in chief was taken to question 48 of his Motor Accidents Claim Form, completed on 8 October 2012 at the offices of Sayan & Associates in the presence of Mr Sayan and Mona. Question 48 reads:

“Before the accident, had you made any firm arrangements to start a new job, stop work, change your duties, working hours or earnings?”

The box for “No” was selected on the form. The plaintiff confirmed that the X was not in his writing. (Mr Sayan’s evidence was that he inserted the X). The plaintiff gave the following evidence:

Q. There’s a whole series of boxes there which have the entry N O. Is that right? Sir, did you make the entries of the X in those boxes in your own hand including that in question 48 or don’t you know?
A. INTERPRETER: This is not my handwriting and I can’t remember. Maybe he asked me and I answer him.
Q. Sir, have you made X’s in boxes on formal official documents such as passport documents, visa document and so on?
A. INTERPRETER: I couldn’t remember I did this.

On 28 June 2012 the plaintiff was interviewed at his home by insurance investigator Mr Clout. Mona attended that interview. She was later given a transcript of the interview and she gave it to Mr Sayan, having spoken to and emailed the Second Defendant to obtain a copy. Through the second half of 2012 the insurer requested documentation and it was Mona who obtained it and provided responses, on behalf of the plaintiff. At no point in that process of inquiry and answer did the plaintiff claim loss of opportunity to work for SGC Joinery. Neither did Mona. Again, this indicates that she was unaware of the lost opportunity of SGC Joinery employment. Had she been aware, surely she would have made sure the insurer and the plaintiff’s solicitor were informed. I discount this observation on account that Mona was not cross-examined on it.
In oral evidence the plaintiff complained that if the offer to commence employment with SGC Joinery Pty Ltd and which he could not take up because of the accident was important, Mr Sayan should have told him. He referred to Mr Sayan not being an Arabic language speaker. I observed the plaintiff in court to have workable English. When taken to his answers that at the time of the accident he was not working (Question 36), that he had not lost income because of the accident (Question 37) and that before the accident he had not made arrangements to start a new job (Question 48); the plaintiff’s answers were that he trusted Mr Sayan and that the answers were Mr Sayan’s mistake. In this cross-examination, his evidence was:

Q. Have a look at page 15. This is question 36, Mr Dib. The question was, “What was your employment situation before the accident?” Do you see that?
A. INTERPRETER: It was the solicitor’s mistake.
Q. Well, let’s just do it bit by bit. That would have been the moment to tell Mr Sayan, “I had just got a job with SGC Joinery,” wouldn’t it, Mr Dib?
A. INTERPRETER: He asked me if I was working in the week that I had the accident not if I was looking for work or got work.
Q. You remember that, do you?
A. WITNESS: Maybe.
A. INTERPRETER: Maybe.
Q. No, but you’ve just given testimony to his Honour the judge saying precisely what Mr Sayan asked you. Do you recall Mr Sayan asking you that precise question?
A. INTERPRETER: I don’t remember exactly what he asked me but there seems I - I’m remembering when you’re asking me now.

Q. All right, okay, let’s go back to it. You just put some words into Mr Sayan’s mouth. You said that he asked you whether you were working in the week before the accident. That’s more or less what you said he said. Correct?
A. INTERPRETER: I just remember when you’re asking me this question the solicitor asked me if I was working or not.
Q. That would’ve been the moment to tell your solicitor that you’d just had a job offer from SGC Joinery, don’t you agree?
A. INTERPRETER: I am not a lawyer. I don’t know what he should ask me or not. I was in pain.
Q. Well, look at question 37 on the same page of the document. The question is, “Have you lost income because of the accident?” and the answer is, “No.” Can you explain that, Mr Dib?
A. INTERPRETER: Because the same solicitor I couldn’t explain more. I don’t remember.
Q. You see, it’s pretty important because you’ve come here claiming over $600,000 in lost income, haven’t you?
A. WITNESS: Sorry, not understand, please.
INTERPRETER: He said a few things and then he said, “I don’t understand the question.”
Q. What are you talking about? You know you’re suing. You’re trying to get money for lost income, aren’t you?
A. INTERPRETER: For sure if I had damage from this incident I should get money from them.
Q. Well, here I just want to show you again there’s a question and answer, “Have you lost income because of the accident?” and your answer was, “No.” Can you explain why that is in here, Mr Dib?
HIS HONOUR: Excuse me, could you just stop. Ms Interpreter, could you please pick up the document that’s on the table in front of the witness, go to number 37 on page 15 and then interpret to the witness what is there written beside number 37.
INTERPRETER: Okay, 37.
HIS HONOUR: Ms Interpreter, did you show him in that interpretation the X, the cross in the box for no?
INTERPRETER: Yes, your Honour.
HIS HONOUR: Now, Mr Watson, I interrupted. Would you ask your question again, please.
WATSON
Q. Mr Dib, can you explain that answer to that question?
A. INTERPRETER: I lost because of the accident. I didn’t understand the question, why the X is there.
HIS HONOUR: I think his answer is, “I don’t understand why the X was there.”
WATSON: Right. I think that might be right, your Honour, but I don’t want to be unfair if Mr Curran is still complaining.
…
WATSON
Q. Interpreter, to assist you, could you go forward to page 16, and I’ll ask you look at page 48, because I’m going to read this on to the record, and then I’m going to ask you to translate it and put a question to Mr Dib. Mr Dib, question 48 is, “Before the accident, had you made any firm arrangements to start a new job, stop work, change your duties, working hours or earnings?” And the answer given to that question is “No.” Can you explain that, Mr Dib?
A. INTERPRETER: I can’t remember, but if I understood the question, I wouldn’t put no.

The plaintiff agreed that he understood the truth was required in his answers recorded in the Accident Claim Form and that he understood the making of the Statutory Declaration which he completed at the end of the Form to be an obligation at law to answer truthfully.
The plaintiff’s acknowledgment of the legal gravity of the Motor Accident Personal Injury Claim Form including the solemn declaration that the contents be true is consistent with those matters having been explained to him by Mr Sayan. It was the evidence of Mr Sayan that he did provide that advice as was his practice, to do.
Mona was educated in Australia, obtaining her High School Certificate and also a Diploma in Community Welfare at TAFE.
About 6 months after leaving school, through Centrelink she won employment as Low Associates of Sydney. Her duties included receptionist work, assisting in probate matters, conveyancing and personal assistant duties to the principal solicitor.
In about 2003 Mona commenced working at Sayan and Associates, Solicitors. Her work involved mainly assisting in family law matters and conveyancing.
Mona took only 3 to 4 months unpaid maternity leave for the birth of each of her 4 children of the marriage. Whilst working at Low and Associates, Mona studied towards her qualification as a licenced conveyancer, part-time at Macquarie University. Her course commenced in 2007. She qualified in 2011.
It is significant that at the plaintiff’s completion of the Motor Accident Personal Injury Claim Form the plaintiff was assisted by both Mona and Mr Sayan from whom he could seek any assistance which he felt he required.
By letter dated 12 November 2014, 1 month before the date of Mr Al-Tawil’s Statutory Declaration (Exhibit 4) Messer’s Sayan and Associates forwarded the plaintiff’s responses to particulars requested by the second defendant of the plaintiff’s Motor Accident Personal Injury Claim Form.
Mr Sayan gave oral evidence, having reviewed his firms file of handling of the plaintiff’s claim by his employed solicitors under his supervision. His evidence was that he personally completed the Motor Accident Personal Injury Claim Form in accordance with instructions which he obtained from the plaintiff at the conference at his offices attended by the plaintiff and Mona.
The common evidence was that the plaintiff was generally able to understand questions in the English language but that Mona was present for the purpose of providing translation, if required.
Mr Sayan explained that the ordinary practice within his firm was to seek updated instructions when activity within the matter, such as completing MACA claim form documentation, providing particulars requested by the insurer and completing the Statement of Claim, required it.
Mr Sayan said that his firm was first instructed of the SGC offer of employment about 2 ½ years after the completion of the Motor Accident Personal Injury Claim Form. That Form being dated 8 October 2012, this evidence timed that instruction at about the same time as the firms 2014 letter providing instructions; Exhibit O; Transcript day 4, page 254 and 255, line 10.
Mr Sayan recognised the crosses in the boxes answering the questions and handwriting on the Motor Accident Personal Injury Claim Form as his own.
I considered Mona to be an intelligent witness. Her answers revealed that she possessed a detailed recollection of family finances. She did not appear as a witness lacking recollection of events.
Mona’s education and work history showed her to be a person of ambition in the pursuit of her chosen career as a Licenced Conveyancer.
Mona’s evidence that the Claim Form was partially completed before the plaintiff was given the opportunity to answer questions directly conflicted with Mr Sayan’s evidence that he completed the Form on instructions. Mr Sayan’s evidence was wholly unaffected, cooperatively given and I prefer it.
For completeness I note that in cross-examination it was put directly to the plaintiff that the first time he told anybody about SGC Joinery employment was in about November 2014. He answered that he did not remember. It was further put to him that he had not told the insurer’s investigator, Mr Clout, in June 2012, medico-legal experts Dr Cordato in March 2013, Dr Stephen in August 2013 or his treating local medical officer Dr Ishrat Ali in November 2013 that he had been unable to accept work with SCG Joinery or anything about that employment at all. In response he said that he could not recall what had been said to doctors. The documentary evidence does not record him or Mona informing Mr Clout, or the doctors of the SGC Joinery job opportunity or of his inability to take it up. There is no evidence of him instructing Sayan and Associates of this major component of his claim prior to the letter of 12 November 2014, Exhibit O. The plaintiff said that he could not recall when he gave the SGC Joinery letter dated 5 March 2012 (Exhibit 3) to Sayan and Associates, nor could he recall where he had been keeping it.
In my opinion the above review of the evidence, documentary evidence and the oral evidence of Mr Al-Tawil, the plaintiff, Mona and Mr Sayan overwhelmingly causes me to find as follows:

I reject the plaintiff’s claim that he was offered employment with SGC Joinery starting on 2 April 2012;

I reject the plaintiff’s claim that because of injuries received in the collision he lost the opportunity to take up employment with SGC Joinery on the terms of the letter of that business dated 5 March 2012 (Exhibit 3);

I find Mr Al-Tawil to be a witness whose evidence was so unreliable as to be a witness of doubtful credit whose evidence likely contained reconstruction, either intentional or unintentional, in his mindful attempt to give evidence which he considered would advance the plaintiff’s case;

The plaintiff and Mona gave evidence mindful of advancing the plaintiff’s claim and which lacked accuracy and frankness. Their evidence must be treated with caution and the evidence of either of them should not be accepted in the event that there is other contradictory objective documentary evidence or evidence of a reliable witness given orally.

Accordingly, I reject the evidence of the plaintiff and of Mona, that when the plaintiff and she attended Mr Sayan to compete the document, most questions had already been answered.
On consideration of the whole of the evidence I find that the plaintiff was not offered employment with Mr Al-Tawil’s business and that at the time of the provision of further particulars of his claim more than two years after the motor vehicle accident, friendship led to them reconstructing events, perhaps on a belief that in their discussions prior to the motor vehicle accident it was contemplated that the plaintiff might work for Mr Al-Tawil. I do not accept that at the date of the motor vehicle collision, the plaintiff and Mr Al-Tawil had agreed that he was to be employed at SGC Joinery starting on 2 April 2012.

Plaintiff Forgetfulness

The plaintiff’s work with Tip Top Bakery was full-time work. Mona gave greater detail than did the plaintiff, describing it as night shift work. Each of them described that employment as having run for about four years and each of them said that he made good money. During cross-examination the plaintiff referred to savings from his work at Tip Top Bakery as a monetary reserve. He was challenged about monies funding his NAB mortgage account (Exhibit 14) out of which he purchased and sold motor cars. Mona’s more detailed evidence of the family finances included that they worked hard, saved and did not spend on such things as expensive family holidays. In addition to their home at 20 Mons Street, Granville, in the late 1990’s they acquired a part share with the plaintiff’s brother in a property known as 327 Clyde Street, Granville. At some time, on the evidence most likely around 2004 to 2009, they received into an “offset” account $130,000 on their sale of their share to the brother. Mona’s evidence was:

A. And, like I said, we’ve always had that money. We had lots of money saved in our offset account so we’ve had money to fall back off which we have done. We’ve redrawn from there at various times, if we wanted to buy a more expensive car, but if you can see our transactions, we’ve always had money going in and out our offset account as well. We sold our share of that house on Clyde Street and put 130,000 in our offset account so money does come and go. We can’t - you know, giving me these and saying, “Explain all these.” Going back all these years is difficult. That is his hobby. He didn’t do it for a profit. That was one of our complaints. I would say, “All this running around,” and you’ve not been selling it for what it’s really worth.

(Mona was being questioned about the plaintiff’s NAB account and lump sums going in and out which she and the plaintiff explained as relating to car sales and purchases).

The plaintiff was properly challenged in cross-examination to the effect that he was not trying to remember facts. In relation to his economic loss claim and specifically in relation to his receipt of the pension, he gave the following unsatisfactory answers when asked about monies in his NAB account:

Q. Well, look at the next page in the bundle. You’ll see a withdrawal on 14 October 2011 for $20,000. What could that be for, Mr Dib?
A. WITNESS: (No verbal reply)
Q. What could that be for, Mr Dib?
A. INTERPRETER: You’re talking about things happen many years ago. I can’t remember.
Q. Mr Dib, at that time you were on a pension of around about $200 per week, weren’t you?
A. INTERPRETER: Maybe.
Q. What do you mean “maybe”?
A. INTERPRETER: You have evidence. I don’t remember.
Q. You don’t remember that you were on a pension or you don’t remember the sum you were getting. What is it?
A. INTERPRETER: Both.

The plaintiff often gave vague answers and claimed forgetfulness to an extent that I was concerned that he was not trying to assist and to recollect matters. In this observation, I have allowed for his complaint of forgetfulness connected with suffering adjustment disorder, depression and anxiety. This is described later. Some examples are:

His answer (quoted earlier) that he could not recall whether or not he was on the pension in October 2011 was unacceptable. The plaintiff had to know he was on the pension because it was the only income he received between 2003 and the hearing.

His claim that he could not recall any of the deposits in the NAB account, Exhibit 13 was unacceptable. In particular, the plaintiff’s answer that he could not recall the source of the credit in the sum of $26,800 on 12 April 2010 was, in my view, unlikely to be the result of his best efforts to answer those questions. Each of the credit sums far exceeded the amount of any other credit sums deposited into the account. It was his personal mortgage account. Mona readily explained the $26,800 credit as proceeds of sale of their near new, current model, Holden Commodore SS. The plaintiff’s and Mona’s evidence was that the car was the best and most current vehicle the plaintiff had owned. Accepting his love and interest in cars, that he had purchased and sold the best car his family had owned in a sum of more than twice what Exhibit 13 indicates to have been the normal value of his motor vehicle trades, makes it very unlikely that he would not recall that transaction.

The plaintiff’s claim of vagueness of recollection of a 2010 motor vehicle accident in regard to which he made an insurance claim such that it required prompting in cross-examination for him to concede that the driver of the other vehicle was his next door neighbour, Mr Anwari Esmatullah was evidence given with what appeared to be a reluctance and an admission finally made in circumstances where references to documents in earlier questions must have made the plaintiff aware that the cross-examiner would likely have access to the insurance documents relating to that motor vehicle accident.

The plaintiff’s answers were obviously vague, if not dissembling, when the plaintiff described the purchaser of a red BMW motor vehicle (of which he was sufficiently proud to have taken a photograph [Exhibit 8]) as a “friend” from Canberra named “Deeb”; when the purchaser was identified by Mona to be not a friend but a cousin. She agreed with the cross-examiner that ““Deeb” was an alternative phonetic spelling of the plaintiff’s own surname Dib”.

Consideration – the Plaintiff Gave Unreliable Evidence

The above analysis of the plaintiff’s evidence, in addition to my earlier observations of evidence concerning the claim of lost employment with SGC Joinery and the plaintiff’s and Mona’s evidence in relation to the completion of the Claim documentation at the offices of Sayan and Associates; in my opinion, overwhelmingly justifies acceptance of the second defendants submission that evidence given by the plaintiff was unreliable. Whilst evidence concerning his pension, employment, and his dealing in cars was given in regard to topics within his claims for damages; nevertheless, his performance as a witness on those topics gives cause for caution in regard to consideration of his evidence describing the disputed “accident”. In relation to his description of the motor vehicle collision, the plaintiff’s evidence should not be accepted where it conflicts with other reliable evidence. Only the plaintiff gave oral evidence of how the collision occurred. The defendant relied on expert crash reconstruction opinion evidence and on the oral evidence of Mrs Rachelle Nakhoul of the post-collision scene.

The Plaintiff’s Description of the Collision

The subject motor vehicle collision occurred at around 9:50 pm on 20 March 2012. The plaintiff said that he was driving his Holden Astra motor car to the home of Bob Baranowski in order to obtain from him an Indian Ring-Neck Parrot for breeding with his own bird. The plaintiff said that he had “a girl bird and I wanted to get a boy bird for her”: Transcript day 1, page 13, line 20. In chief the plaintiff said that he was to pick up the boy bird from “someone named Bob”: Transcript day 1, page 13, line 26. He said that he did not know Bob’s last name: Transcript day 1, page 13, line 30. The plaintiff drove from his home at 20 Mons Street, Granville to Mr Baranowski’s home at 241 Old Northern Road, Baulkham Hills. The plaintiff said that he and Bob had spoken of and organised the transaction at Mr Baranowski’s Ken Stokes Smash Repairs the preceding day. At the outset I observe that I consider it unlikely that the plaintiff did not know Bob’s surname because Mr Baranowski had employed the plaintiff, they shared their mutual love of birds, the plaintiff purchased paint for his car detailing from Mr Baranowski and Mr Baranowski was a guest at the plaintiff’s wedding to Mona.
The plaintiff said that the route he took was along Woodville Road and Church Street Parramatta and after that he did not recall the street names. He was unfamiliar with the route. There was no supportive evidence of finding that the plaintiff was familiar with the route to Mr Baranowski’s home.
The collision occurred on Junction Road, Winston Hills at the intersection with Romulus Street. The plaintiff’s case was that when he attended the home of Bob (Mr Baranowski), in order to acquire the male parrot, on the evening of 20 March 2012, as had been arranged, Mr Baranowski was not home and when he telephoned Mr Baranowski there was no answer. He did not recall how long he stayed outside Mr Baranowski’s house before he decided to drive home.
When it was put to him that he veered away from the route between Mr Baranowski’s house his home, the plaintiff answered that he did not recall why he got to where the accident occurred. He did not recall what happened in his choice of route. He gave the following answers in cross-examination:

Q. See, I'm suggesting to get to the point of the accident, when it came to a cleft in the road, you had a choice to continued on Old Northern Road east toward Parramatta or right along Seven Hills Road towards Seven Hills or Blacktown. That's true, you had that choice.
A. INTERPRETER: I don't remember what happened but where - so what he's saying if I went left or right.
Q. Are you saying, "so what", are you?
INTERPRETER: He means he wants to--
WATSON: No, sorry. Is that what he said, Interpreter?
INTERPRETER: He said, "What's wrong if I went left or right?"
WATSON
Q. Well, you went in nearly the exact opposite direction to your home, didn't you?
A. INTERPRETER: I was going to go earlier to go back and get..(not transcribable)..
Q. You didn't tell the investigator that, did you?
A. INTERPRETER: I don't remember.
Q. You told the investigator, and I want to get this right, "I was going or wanting to buy drinks from the area. I was going around and saw the drink place and stopped." That's what you told the investigator, wasn't it?
A. INTERPRETER: The paper in front of you but I don't remember these things. I forgot.
Q. Does it sound right?
A. INTERPRETER: Maybe.

Dr Roberts under “Summary of Relevant Documentation” describes only having received: “The entry dated 12 July 2012 in the Cumberland Hospital clinical notes document.” In fact, the Paringa Mental Health Unit notes comprise 53 pages, not a single page. The assessment by the treating psychiatrist Dr Cottrell-Dormer which recorded the overall, summary observation of the plaintiff’s denial of mood disturbance prior to Mona’s departure is dated 13 July 2012; not 12 July 2012: Exhibit T, page 125.
I have quoted above that passage of Dr Cottrell-Dormer’s assessment as well as the registered nurse entry dated 12 July 2012 of the plaintiff saying that the stressor of the family separation was based on “lots of reasons” and “started a long time ago”. I have included references to entries by staff of the Paringa Unit of the plaintiff’s denial. Dr Roberts’ acceptance of the plaintiff’s explanation: “that there had been no problems in his marriage prior to the motor vehicle accident” (Exhibit T, page 186) is not consistent with the history contemporaneously recorded by Dr Cottrell-Dormer and by staff of the Paringa Unit. Dr Roberts report does not disclose that he considered Dr Cottrell-Dormer’s exposition on causation and onset of mood change and does not explain why, if it be the case, he disagreed with it.
Doing the best that I can without having heard oral evidence from the reporting doctors or from Dr Cottrell-Dormer, for the reasons given above, I am not persuaded to accept Dr Roberts opinion that the motor vehicle accident caused the plaintiff’s depression and adjustment disorder. Dr Roberts opinion is based upon his reliance upon a factual history given by the plaintiff which I have rejected. I prefer the attribution of causation of the plaintiff’s depression and adjustment disorder to marital separation as recorded by Dr Cottrell-Dormer because it is consistent with the lay factual evidence describing the plaintiff’s presentation following the motor vehicle accident and before the return of his family from Lebanon. In addition, Dr Cottrell-Dormer’s opinion is to be preferred because he had the benefit of observation and examination during a whole day admission in a special mental health unit and in a treating environment whereas the reporting psychiatrists had the lesser opportunity of a medico-legal consultation.
The plaintiff submits that the court is bound by Dr Roberts reasoned determination of causation behind his Certificate dated 6 August 2014 issued under Part 3.4 of MACA. Should that submission be correct; then because Dr Roberts certified that the Chronic Adjustment Disorder with Mixed Anxiety Depressed Mood suffered by the plaintiff gave rise to a permanent impairment greater than 10%, the plaintiff would be entitled to compensation for non-economic loss: s 131 MACA. The second defendant says that the Certificate is not binding.
That there is a tension between the operation of sections 61 and 58 MACA when it comes to the MAS assessor determining whether injuries are caused by a motor vehicle accident is recognised and well reported.
Section 61(2) specifically provides that the Certificate is conclusive evidence of the matters certified. Pursuant to s 58(1)(d) the matter certified is whether the degree of permanent impairment resulting from injury caused by the accident is greater than 10%. Applying my factual findings to that prescription the subject permanent impairment certified by Dr Roberts was not a result of injury caused by the motor vehicle accident. Prior to amendment of s 61(2) MACA, effective 1 October 2008, the Court of Appeal in Pham v Shui [2006] NSWCA 373 determined that the Certificate was conclusive but only for the purposes of non-economic loss (at [98]). Specifically, the Certificate was conclusive as to the “medical aetiology, meaning the medical causation of the relevant” injury (at [96]).
In this case, the medical aetiology described in Dr Roberts “Reasons” is not the issue. In my opinion it is the factual foundation upon which Dr Roberts reasoned his medical aetiology, which I have found to be inaccurate.
A point not reasoned by the Court of Appeal but which was accepted by the parties without criticism of the Court of Appeal in Rodger v De Gelder [2012] NSWCA 167 at [9] was that the Assessor’s reasoned finding of causation was not in law conclusive evidence of the plaintiff’s injuries for all purposes. The parties have not been able to refer me to case authority precisely on point. I conclude that the Certificate is not binding in these circumstances where Dr Robert’s Assessment was made on a wrong factual basis.
The plaintiff did suffer physical soft tissue injury causing discomfort and impairment of function of some degree resulting from the motor vehicle collision. I have accepted the history recorded in the Paringa Unit notes, the assessment of Dr Cottrell-Dormer and as was revealed from the evidence of the plaintiff’s brother Mr Mohamed Dib and of Mr Baranowski that the plaintiff was not noticeably distressed or apparently altered of mood despite experiencing those physical injuries in the months following the motor vehicle accident. I have not preferred the vague evidence of Mrs Rola Dib to the contrary. Generally I found her evidence given with a loyal sister’s bias in favour of the plaintiff’s case. I found her to exaggerate the plaintiff’s physical impairment.
Whether or not the negligence of the first defendant caused the plaintiff’s claimed psychological harm is to be determined pursuant to the provisions of s 5D Civil Liability Act 2002 (NSW) (CLA). See s 3B(1)(e), (2(a)) CLA.
The issue here is one of factual causation. Whether the negligence was a necessary condition of the occurrence of the harm: s 5D(1)(a) CLA. The case has not been contested on the basis of the question of whether or not the harm so caused was appropriately within the scope of the first defendant’s liability for negligence: s 5D(1)(b).
I do not accept that the plaintiff’s state of anxiety, depression and adjustment disorder resulted from the motor vehicle accident.
For completeness, I consider Dr Westmore’s observation of contribution of physical symptoms making a “link” to the plaintiff’s psychological state to be not persuasive for the same reason of factual basis not found. I find that the first defendant’s negligence which caused physical injury was not by the consequent discomfort and restriction a necessary condition of the occurrence of the plaintiff’s adjustment disorder, depression, anxiety and change of mood: Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182; [2012] HCA 5 at [20].
I turn to the plaintiff’s claims of physical injury.
The evidence supports that the plaintiff suffered musculoligamentous injury aggravating pre-existing mild degenerative changes in his cervical and lumbar spine, not unexpected for someone of his age who suffers such trauma. In his left shoulder he suffered rotator cuff tendinopathy and subacromial subdeltoid bursitis.
Other than Dr Abdalla’s referral to Dr Clark, orthopaedic specialist, the plaintiff has not received significant treatment for his physical injuries such as specialist medical procedures. Dr Clark’s reports dated 9 May 2012 and 7 June 2012 (Exhibit T pp 28-30) do not provide any useful information for the purposes of assessing damages in this case.
The plaintiff relies on assessment by the following medico-legal reporters:

Dr Marsh, orthopaedist, MAS Certificate and Reasons 9 September 2014;

Dr T Sheehan dated 14 January 2014 and 4 May 2017;

Dr Dennis Cordato dated 27 March 2013 and 23 October 2013.

All reports relied upon by the plaintiff are contained within Exhibit T.
Dr Marsh issued his MAS Certificate on 9 September 2014 assessing the plaintiff’s permanent impairment as not greater than 10%. His assessment included each of the three areas of claimed impairment, neck, back and left shoulder. In his Reasons he calculated pursuant to the provisions of Part 3.4 MACA a total permanent impairment of 4%.
Dr Marsh recorded that the plaintiff’s complaints of restriction of range of movement of his left shoulder described greater restriction than had been noted in independent medical examinations carried out one year before. In his opinion, imaging including MRI, indicated in the plaintiff’s left shoulder “only some possible mild bursitis and tendinopathy”. Dr Marsh considered both reports of Dr Cordato, the 14 January 2014 report of Dr Sheehan and a report by Dr Stephen, orthopaedic surgeon, dated 28 August 2013 which is Exhibit 26 in the defendant case. He did not consider the updated report of Dr Sheehan to which I will come.
The plaintiff reported significant worsening of pain and restriction over the time since the motor vehicle accident. There is no finding of objective or organic physical cause identified by the reporting doctors as a cause for the plaintiff’s pain and restriction to have worsened as claimed.
Dr Marsh described the injury as whiplash to the cervical and lumbar regions of the spine and frank injury to the left shoulder. He determined that there was no asymmetric loss of range of movement and no guarding or muscle spasm in either of the cervical spine or the lumbar spine. He found no clinical evidence of radiculopathy. He assessed zero whole person impairment for those regions.
In relation to the left shoulder, Dr Marsh expressed the opinion that the gross restriction in all movements presented by the plaintiff was not compatible with any injuries sustained in the motor vehicle accident and that whilst imaging studies indicated bursitis and tendinopathy which would result in minor degree of restriction of movement, one would not consider it likely that there would be the severe deterioration over the period of the months since the plaintiff had seen Dr Sheehan. The plaintiff presented with far greater restriction to Dr Marsh than had been recorded by Dr Sheehan earlier that same year.
Dr Marsh accepted the figures for restriction of range of movement of the left shoulder obtained by Dr Cordato in his report of March 2013 and by Dr Stephen in his report of August 2013 as a more realistic indication of the likely restriction in range of movement which would be expected from what was essentially a mild bursitis/tendinopathy of the left shoulder.
Dr Sheehan referred to the plaintiff’s significant complaints of restriction of flexion and extension of his cervical spine. Without pretending any medical expertise, I observed the plaintiff to have an apparently normal forward and back deportment whilst giving evidence over two days, and to physically demonstrate that his neck would flex such that his chin was against his chest. These observations were available to counsel and raised with counsel. The persuasive effect of Dr Sheehan’s opinion is, in my opinion, reduced to the extent of his reliance upon the plaintiff’s exaggerated complaints.
At page 5 of his report of 14 January 2014 (Exhibit T p 6) Dr Sheehan expressed that having considered MRI, his opinion of restriction and impairment was based on the plaintiff’s complaints. On that basis he opined that the plaintiff was, and would remain, unemployable throughout the foreseeable future. On the same page, Dr Sheehan accepted, on the basis of the plaintiff’s complaints, that the motor vehicle accident had aggravated previously asymptomatic degenerative changes in the plaintiff’s neck and low back. Dr Sheehan noted the plaintiff to be psychologically affected and accepted the plaintiff’s history that that affect was precipitated by the motor vehicle accident.
In his report of 4 May 2017, Dr Sheehan did not vary his diagnosis and noted that all symptoms remained the same but that the plaintiff emphasised that the severity of his pain in the injured areas was worse than it was in 2014. In each of his reports, Dr Sheehan noted that the plaintiff was not inclined toward overstatement or exaggerated behaviour when assessed. I have found differently of his evidence in the court room.
Dr Sheehan accepted the plaintiff’s report that loss of his capacity to lead a normal life including playing with his children and sexual relations with Mona were a consequence of his physical injuries whereas the evidence in the hearing from both the plaintiff and Mona was more to the effect that the plaintiff’s anger interfered with his interaction with the children and his disinterest interfered with his family relationships including intimacy with Mona. These elements were identified as the changes in his behaviour which, on his case, were attributed to the motor vehicle accident but which I have found to have been caused by the breakdown of the marriage independently of his physical symptoms.
The two reports of Dr Cordato, neurologist, dated 27 March 2013 and 23 October 2013 confirm the soft tissue injuries to the neck, low back and left shoulder. In relation to the plaintiff’s claim for reduced range of movement of the neck, Dr Cordato in his first report stated:

He is aware subjectively of reduced range.

Dr Cordato found no radiculopathy from the neck or from the low back, that being a subject precisely within his speciality. He summarised his findings on examination in his first report as follows:

…today I noted that his cranial nerves were intact. He had mild reduced rotation of the neck to the left to 45 degrees where it was near normal to the right. He had also mild reduced forward flexion and extension. His right shoulder had a full range of movement. The left shoulder was able to abduct and flex to 170 degrees but it was painful on doing so. In terms of his upper limbs, there was no neurological abnormality detected. In his lower back region, he had visible guarding when changing position from sitting to standing. He had central lower lumbar tenderness that extended to the left paravertebral region as well. His lower limb power, reflexes and sensation were normal.

Nowhere in the medical reports do the doctors observe impairment of ability to sit let alone the gross impairment claimed by the plaintiff in the evidence of himself and of Mr Mohamed Dib. I repeat, observation of the plaintiff over more than two days of evidence in the witness box, and when I drew counsel’s attention to him sitting in the courtroom, did not reveal any part of that claimed disability. In his second report, Dr Cordato did not identify any new or worsened organic injury but recorded the plaintiff saying that his condition had worsened in the seven months since his first examination and report.
Dr Cordato, on the basis of the plaintiff’s complaints, expressed the opinion that the plaintiff was able to perform all activities of his personal hygiene but was “at present” unable to perform domestic chores such as cleaning bathrooms, vacuuming or ironing because of his difficulty with bending and lifting. He recorded that the plaintiff had informed him that his wife performed those tasks for him. Dr Cordato considered the plaintiff would be unable to perform outdoor activities such as gardening or lawn-mowing. As did Dr Sheehan, Dr Cordato took into consideration the plaintiff’s depressed psychological state. His assessment, which was similar to that of Dr Sheehan, was that the plaintiff was “at present” totally unfit for work duties either part time or full time and that if he was “to improve and return back to the workforce” he should avoid activities that involve repetitive bending or lifting and should avoid lifting weights greater than five kilograms in a work capacity.
Exhibit U in the plaintiff’s case contains notes of treating clinical psychologist Mr Medhat Metry. The plaintiff consulted with him 34 times between 4 September 2013 and 7 July 2017. Mr Metry proceeded on the basis of a diagnosis of adjustment disorder with anxiety and depressed mood. Mr Metry reported that the plaintiff was frustrated from pain and physical limitations and suffered some degree of sleep disturbance due to the pain from his physical injuries.
It is consistent across all medical reports that the plaintiff suffers continuing symptoms of pain and some degree of restriction of movement consequent upon the soft tissue physical injuries in the regions of his neck, low back and left shoulder caused by the motor vehicle collision.
As I have expressed, the difficulty in assessing damages on the basis of the reports and in the absence of doctors being called to give oral evidence, is that I have found the plaintiff and his wife, who attended with him at specialist medical appointments, to exaggerate his complaints. I have also found that the plaintiff did not suffer mood disturbance and depressed thought following the motor vehicle accident but that the psychological change occurred at the time of, and because of, the eruption of matrimonial difficulties and was immediately triggered by his wife separating from him and suggesting divorce on 8 July 2012.
Albeit they recommenced cohabitation with the children at the matrimonial home, 20 Mons Street, Granville, between 23 July 2012 and 9 April 2017, on the evidence they never restored normal matrimonial relations. The plaintiff lived pretty much his own life, remaining in bed until the middle of the day, spending his afternoons visiting his friends in the park, at a local fruit shop and particularly spending hours at a local service station. The evidence was that he did not work at these places but that these were social outings. The plaintiff’s evidence as to what he did at these places was very vague and amounted to not more than spending time with people he knew. In the evenings the plaintiff would spend time with his sister’s family and with his best friend Ahmed including dining at their homes. With encouragement from Mona, the plaintiff would dine at her parents’ home with his family when she cooked for her father.
It is in that environment of including the marriage breakdown, altered mood and depression and low motivation that the whole of the medical evidence of physical impairment is to be considered. In that context, on 4 September 2013, Mr Metry recorded among the long list of the plaintiff’s complaints: the anger with his wife and his brother, frustration from pain and physical limitations and excessive worries and difficulty of controlling those worries, as well as depressed mood.
Across the medical report evidence, to some extent, the authors move with the underlying assumption that the plaintiff would, but for his injuries, perform domestic chores. The evidence is that the plaintiff never did so, except for carrying washing to the line and bringing it back in when dry (about four machine loads per week), cleaning mirrors within the house and, a few times per year, cleaning the external windows. He maintained his garden (except for lawn mowing) and his birds and took out the garbage. It was Mona who performed the domestic tasks. As the children grew up they assisted her. During the nine weeks Mona was in Lebanon immediately following the motor vehicle accident the plaintiff’s brother Mohamed observed his behaviour to be normal and that he maintained his birds in a normal way including going out to feed them and attend them for forty minutes at a time. Mr Mohamed Dib thought it normal that the plaintiff was on the couch when he would visit. He did not express any surprise or thought of abnormality regarding the mess in the house. The plaintiff’s sister, Mrs Rola Dib, came to the house once a week for about four hours to clean it. Following Mona’s return on 23 July 2012, he continued not to participate in domestic chores. Whilst he has lived at 327 Clyde Street, Granville with Mrs Rola Dib’s family and Mr Mohamed Dib since 10 May 2017, he has continued not to perform any domestic chores. Since he became depressed, he has not performed outside gardening and maintenance work, which previously on occasion he shared with his brother Mohamed.

The evidence shows that the advice Mr Metry recorded that he gave the plaintiff on 4 September 2013, that he call his friends twice a week, cook breakfast three times a week and drive for thirty minutes a day at least six times a week was given at a time when the plaintiff already exceeded that plan for socialising and for driving (all evidence was that his love of cars continued and that he spent his time with his car). In relation to cooking, the advice was likely to be futile. Accepting the affectation of depressed mood, still it was not the plaintiff’s depression which caused him to rely on his wife and others for most domestic needs. It was his choice. He had pretty much always done so.
Reports of Dr John Stephen, dated 28 August 2013 and 2 December 2016, were tendered by the second defendant and became Exhibits 26 and 27. Dr Marsh, as recorded above, observed a consistency in finding of restriction of movements between the reports of Dr Cordato, Dr Stephen’s report of 28 August 2013 and his own report. In relation to the soft tissue injuries, Dr Stephen attributed whole person impairment of 9% in his first report. In his second report he reported an asymmetry of cervical movement which he attributed to pain limiting extension.
As did all other doctors, Dr Stephen found no evidence of muscle wasting. He found no evidence of radiculopathy. He recorded no impairment of capacity to sit. During his examination of the plaintiff on 1 December 2016, at p 4, Dr Stephen recorded straight leg raising on each side at about 30 degrees before complaint of pain whereas during other examinations, the plaintiff’s straight leg raising was more like 80 degrees. Under the heading ‘Diagnosis’ on p 4 of his later report, Dr Stephen recorded:

Whilst it is true that Mr Dib sustained soft tissue injuries to his neck, low back and left shoulder as a result of the motor vehicle accident, the physical examination today was more remarkable for hyper-reaction and inconsistencies, namely voluntary restriction of cervical left shoulder and lumbar movements and of straight leg raising, together with complaint of pain very early on light vertical impression.

At page 5 he recorded that in contrast to his examination report of 28 August 2013 (with which assessment Dr Marsh concurred) there were now marked inconsistencies in the plaintiff’s presentation. In answer to the question whether the plaintiff’s complaints of injury and disability were related to the motor vehicle accident, Dr Sheehan answered (p 5 of Exhibit 27) in the affirmative:

But his actual physical injuries and disabilities are slight and possibly even absent.

He concluded (at page 6 of Exhibit 27) that there was no functional incapacity from a purely orthopaedic point of view.
I find that the plaintiff suffered soft tissue injuries of tendinitis and bursitis in his left shoulder and a whiplash-like soft tissue injury to his neck and back which rendered his pre-existing degenerative spinal condition in those locations symptomatic whereas it had been asymptomatic. I accept that the plaintiff continues to suffer a degree of pain and of restriction in those three areas of his body. That those pains and restrictions persist after five years, causes me to accept that there is a degree of permanent impairment of the plaintiff as a result of the injury caused by the motor vehicle collision and that some degree of impairment will continue.
The plaintiff claims for compensation for non-economic loss, past and future diminished earning capacity as well as for past and future out of pocket expenses.
In regard to non-economic loss, that I have found the plaintiff’s psychological condition to be not the result of the motor vehicle accident and that the MAS Assessment Certificate of Dr Roberts is not binding, means that because the plaintiff’s permanent impairment for physical injuries were certified by Dr Marsh in his MAS Assessment at 4%, that the plaintiff is not entitled to compensation for non-economic loss: s 131 MACA.
Assessing the plaintiff’s claims for economic loss in the form of lost earnings and for deprivation or impairment of earning capacity into the future, the plaintiff puts his case on the basis that he would have been employed from 2 April 2012, full time, with SGC Joinery Pty Ltd. I have not accepted the factual basis for that claim; i.e. that the job was offered to him. The plaintiff had basically unemployed for about eight years prior to the motor vehicle accident. He was receiving Centrelink payments and prior to that a pension on account of his inability to maintain regular employment because of his anal fistula which is a permanent condition.
That damages are difficult to calculate does not relieve the obligation upon the Court to arrive at the best assessment I reasonably can on the evidence. The plaintiff has a degree of impairment and restriction in his left shoulder, neck and low back. In particular, he suffers some restriction of rotation of his head, some loss of power in the use of his left arm and some restriction with lifting and bending. Attempting a picture of the effect upon his life brought by those impairments is like looking though a fog because his evidence and the evidence of Mona, his brother Mohamed Dib and his sister Rola Dib included what I have assessed to be exaggeration. The fog is thickened because the plaintiff gave his evidence as a person suffering adjustment disorder and depression and he lives the life of and is observed by those witnesses to live the life of a person suffering that psychological condition. His psychological state must be accepted to impair and depress to some extent his willingness to function.
Another cloud adding to the fog is that whereas in many cases, the court has the opportunity of measuring the everyday life activities of the plaintiff before injury with his activity after injury, the plaintiff here was not an active house husband but performed the very limited domestic chores. Again, his brother Mr Mohamed Dib observed that the plaintiff was “normal” in his physical activities including attending to his birds. That observation was made over nine or ten weeks before the added layer of his psychological impairment commenced.
The plaintiff’s income tax returns are included in Exhibit S. They disclose a total income in 2007: $6,565; in 2010: $10,722; and in 2011: $11,012. ATO Notices of Assessment show net income (rounded) in 2003 of $26,000; 2004 of $31,000; 2005 of $25,000; and 2006 of $16,000. This evidence shows that the plaintiff was never more than a modest income earner. In the later years there appears to be negligible earnings given he was in receipt of a pension and subsequently NewStart payments.
The second defendant submits: “The court would not be satisfied that the plaintiff would have engaged in any employment if the accident had not occurred.”: Final Outline of Submissions dated 14 September 2017 at [11].
The principle for assessment of the plaintiff’s past and future economic loss pursuant to s 125 MACA in these circumstances is that repeated by the plurality in Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 from the plurality in Graham v Baker (1961) 106 CLR 340; [1961] HCA 48. The principle there stated is:

The plaintiff can only recover damages for the loss…of salary if he can prove that his earning capacity has been diminished…although the defendant must take the plaintiff as it finds him,…, the plaintiff nevertheless has his burden to discharge. He will be entitled to recover only if he can prove a diminution in his earning capacity which has been or may be productive of financial loss. If, notwithstanding any impairment, his contract of employment and his right to draw a salary continue, his impairment has not resulted in any financial loss.

At the time of hearing more than five years had passed since the motor vehicle accident. With the unfortunate burden of his depressed psychological state, the evidence does not reveal attempts by him to find paid employment in that period. Mona described him as looking for employment at the time of the motor vehicle accident. The plaintiff’s physical injuries would have and will continue to impair his opportunity to find manual work in the labour force to some extent. He has only ever performed manual work as a motor vehicle spray painter and as a worker at Tip Top Bakery plus some unquantified security work. But for his psychological state, he may have had more enthusiasm to attempt to gain some form of employment. I note that specialist orthopaedic opinion supports that he was unfit to work because of his physical injuries but I have determined that those assessments were based on the plaintiff’s exaggerated reporting. The latter report of Dr Sheean (Exhibit 27) assessed “slight” physical injuries and disabilities. On the whole of the evidence, I am not satisfied that the plaintiff has proved on the balance of probabilities that the diminution in his earning capacity has been productive of a financial loss. I award nothing for past-economic loss.
The court cannot make an award of damages for future economic loss unless the plaintiff first satisfies the court that the assumptions about future earning capacity or other events on which the orders to be based accord with the plaintiff’s most likely future circumstances but for the injury: s 126(1) MACA.
The plaintiff is a man in his forties, presently residing in the home with his sister’s family and owned by his brother. He is a loving father of four children. In the decades remaining of his working life, in my opinion, it would be harsh to find that it is not most likely that he would seek some form of income in order that he might achieve a more independent lifestyle and provide for his family. For the reasons given, obviously any award for future economic loss can only be meagre. That he is likely to work to some extent is also supported by the evidence that he has, albeit in the fairly distant past, maintained full time employment at Tip Top Bakery and enjoyed the financial opportunity which he and his wife described of their purchases of houses and of cars.
Mindful of the requirements of s 126(2) and (3) MACA, I propose to assess future economic loss on a buffer basis as is permitted: Penrith City Council v Parkes [2004] NSWCA 201 per Giles JA at [5]; Zorom Enterprises Pty Ltd v Zabow and ors [2007] NSWCA 2016 at [49]. For the reasons given, I am satisfied that it is extremely difficult on the evidence to assess with any accuracy the quantum of the most likely future circumstance that the plaintiff will work.
Doing the best that I can on the evidence of this case, I allow a buffer in the lump sum of $20,000.
Exhibit R is the mathematically agreed past out of pockets expenses for medical treatment. The treatment has involved attendances for physical and psychological conditions. Exhibit R does not identify the treatments. My findings lead to the obvious conclusion that treatment for psychological ailment is not compensable as damages in this case. I allow out of pocket expenses as agreed to be in accordance with these reasons, in the sum of $14,105.92.
As to future medical expenses for physical injury, there has been no specialist ongoing treatment. The plaintiff said that he does not benefit from physiotherapy. I therefore give him a lump sum, contemplating exacerbations, per annum and which will cover physiotherapy when medically required and general practitioner review. He has a regular general practitioner and because of his fistula and his ongoing depression, he will continue to have regular attendance on the GP in any event. This means that little provision for GP attendances is to be included.
Doing the best that I can on the evidence I allow a lump sum for future medical treatment for the plaintiff’s physical injuries in the sum of $5,000.
As reasoned above, the plaintiff may seek independent living in the future but presently lives in a house owed by his brother in which his sister performs all of the domestic duties and his brother maintains the grounds.
The domestic duties which the plaintiff did perform before his injury are not identified in the evidence as amounting to more than six hours per week. The services provided to him from the time of the injury through the gratuitous care of family day to day may indeed exceed six hours per week over the intervening five years. His physical impairments are not shown on the evidence to be the source of need for assistance approaching the statutory threshold. The plaintiff maintained himself between the date of the accident and 1 June 2012 with only the domestic assistance of his sister Ms Rola Dib four to five hours per week.
Section 141B(2) MACA provides that no compensation is to be awarded if the gratuitous attendant care services would have been provided to the plaintiff even if the plaintiff had not been injured by the motor vehicle accident. On the facts as I have found them, the services being provided to the plaintiff would have been provided to him even had he not been injured in the motor vehicle accident. In addition, the evidence does not satisfy me that the plaintiff has a need for attendant care services which exceeded the six hour per week for a period of six consecutive months required by s 141B(3) MACA. The evidence does not establish a need for assistance on a commercial basis.
In the circumstances the plaintiff has not satisfied me of an entitlement to damages for attendant care services.

Orders

My orders are:

Verdict for the plaintiff against the defendant.

The defendant to pay to the plaintiff damages in the sum $39,105.92.

Defendant to pay the plaintiff’s costs.

Amendments

12 March 2018 - Typographical error on cover sheet.

Decision last updated: 12 March 2018

Medium Neutral Citation:	Samir Mahmoud Dib v Kallie Doxaratoras [2018] NSWDC 26
Hearing dates:	31 July, 1 – 4, 7 – 11, 14 – 18, 21 August, 15 September 2017
Date of orders:	09 March 2018
Decision date:	09 March 2018
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	1. Verdict for the plaintiff against the defendant. 2. The defendant to pay to the plaintiff damages in the sum of $39,105.92. 3. Defendant to pay the plaintiff’s costs.
Catchwords:	MOTOR ACCIDENT – Whether staged motor vehicle accident DAMAGES – whether MAS Certificate of Assessment of permanent impairment binding as to causation where different facts found
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B(1)(e), 3B(2)(a), 5D Evidence Act 1995 (NSW), s 140 Motor Accidents Compensation Act 1999 (NSW), ss 58, 61, 119, 126, 131, 148 Uniform Civil Procedure Rules 2005 (NSW), 14.4, 15.3, 15.4
Cases Cited:	Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Cummins v Cummins (2006) 227 CLR 278 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Mason v Demasi [2009] NSWCA 227 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Mutual Community General Insurance Pty Ltd v Khatchmanian (2013) ANZ Insurance cases 61-974; [2013] VSCA 144 Palmer v Dolman [2005] NSWCA 361 Penrith City Council v Parkes [2004] NSWCA 201 Permanent Trustee v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514; [2003] HCA 25 Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 Pham v Shui [2006] NSWCA 373 Rodger v De Gelder [2012] NSWCA 167 Sharma v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWCA 307 State of New South Wales v Talovic [2014] NSWCA 333 Strong v Woolworths Ltd T/as Big W (2012) 246 CLR 182; [2012] HCA 5 Trustees of the property of Cummins v Cummins (2006) 227 CLR 278 Zorom Enterprises Pty Ltd v Zabow and ors [2007] NSWCA 2016
Texts Cited:	Principal judgment
Category:	Principal judgment
Parties:	Samir Mahoud Dib (plaintiff) Kallie Doxaratoras (first defendant) Insurance Australia Limited trading as NRMA Insurance (second defendant)
Representation:	Counsel: Mr F Curran (plainitff) No appearance (first defendant) Mr G Watson SC with Ms S Warren (second defendant)
File Number(s):	2015/00301730
Publication restriction:	None