Sayed v Lee
[2022] WADC 76
•19 AUGUST 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SAYED -v- LEE [2022] WADC 76
CORAM: WHITBY DCJ
HEARD: 27-30 JUNE 2022 & WRITTEN SUBMISSIONS DATED 11 JULY 2022
DELIVERED : 19 AUGUST 2022
FILE NO/S: CIV 550 of 2017
BETWEEN: ANWAR SHAH WAFIQ SAYED
Plaintiff
AND
YUNWOO LEE
Defendant
Catchwords:
Causation - Car accident - Claim for damages for back pain, neck pain, numbness of hands, depression and loss of teeth implants caused by the accident - Pre-existing back and neck pain and numbness in hands - Pre-existing depression as a result of torture by Russians in Afghanistan prison in 1985 and imprisonment in Western Australia for fraud from 2010 to 2013 - Prior loss of teeth as a result of assault from disgruntled parents of student when plaintiff was a lecturer - No independent evidence of teeth implants - Car accident caused short-term back and neck pain but no other injuries
Assessment of damages - Employment contracts not signed before the car accident - No genuine offers of employment - No past or future economic loss as a result of plaintiff's short-term back and neck pain - Past medical and out of pocket expenses assessed - Non-pecuniary loss assessed below threshold provided for in s 3C(4) Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Evidence - Credibility of the plaintiff - Section 25 Evidence Act 1906 (WA)
Evidence - Failure of plaintiff to call witness - Finding that evidence would not have assisted the plaintiff
Practice and Procedure - Discovery - Legal professional privilege - Supplementary expert reports discoverable
Legislation:
Civil Liability Act 2002 (WA)
Evidence Act WA 1906 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Damages assessed at $1,100
Representation:
Counsel:
| Plaintiff | : | Mr G Stubbs |
| Defendant | : | Mr P E Jarman |
Solicitors:
| Plaintiff | : | WA Legal Pty Ltd |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner of the Australian Federal Police v Sayed [2014] WADC 37
East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147
EMI (Australia) Ltd v BES [1970] 2 NSWR 238
Fazio v Fazio [2012] WASCA 72
HAR v The State of Western Australia [No 2] [2015] WASCA 249
Hemat Shir & Sayed Developments Pty Ltd v Haseeb [2014] WASC 485
Jones v Dunkel (1959) 101 CLR 298
Lyle v Soc [2009] WASCA 3
Phillips v London & South Western Railway Company (1879) 5 QBD 78
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Sayed v The Queen [2012] WASCA 17
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Table of Contents
Introduction
Plaintiff's case
Defendant's case
Issues to be determined
Evidence at trial
Lay witnesses
Expert Witnesses
Expert Evidence - general observations
Did the car accident cause any of the plaintiff's alleged injuries?
Overview of legal principles of causation
The plaintiff's personal history
The plaintiff's medical history prior to the accident
Back and neck pain
Numbness in hands
Psychological/psychiatric issues
Teeth
The car accident
The plaintiff's injuries after the accident
Back and/or neck pain
Dr Al-Qubaisy, general practitioner
Dr Hamza Amira, general practitioner
Dr Ozanne, specialist occupational physician
Dr Suthers, occupational therapist
Associate Professor Wren, orthopaedic surgeon
Numbness in hands
Dr Hamza Amira, general practitioner
Psychological/psychiatric injuries
Dr Amira, general practitioner
Dr Ng, psychiatrist
Dr Anthony Mander, psychiatrist
Teeth
Dr Elisabeth Staer, dentist
Credibility of the plaintiff
Summary of findings on causation
Determination on causation
Did the plaintiff suffer any loss as a result of his short-term back and neck pain caused by the car accident, that is in the two months following the car accident?
Economic loss
Medical and pharmaceutical expenses
Out of pocket expenses
Non-pecuniary loss
Conclusion and orders
WHITBY DCJ:
Introduction
On 25 February 2014, the plaintiff was driving his wife's car when it was struck from behind by the car the defendant was driving. It is not in issue that the car accident was the defendant's fault.[1]
[1] Counsel for the defendant conceded that the accident was as a result of the defendant's negligence (ts 6).
The plaintiff says that, as a result of the car accident, he has suffered back pain, neck pain, numbness in his hands, loosening of his teeth implants and psychological and psychiatric injury.
The plaintiff says that, as a result of the car accident and the injuries that it caused, he was not able to take up work offers and is not able to do any work, thereby causing him past and future loss of earning capacity.
The defendant disputes that the car accident caused these injuries to the plaintiff and says that the plaintiff has not suffered a loss of past or future earning capacity as a result of the car accident.
The issue at the heart of this case is causation - that is, did the car accident cause any of the plaintiff's alleged injuries? Only if I find that it did, do I then go on to consider whether the plaintiff suffered any loss as a result of those injuries and if so, the quantum of that loss.
Central to the issue of causation is the plaintiff's credibility.
The plaintiff's life prior to the car accident was, at times, very difficult. Sometime between 1985 and 1990, he was imprisoned in Afghanistan in a Russian prison, where he was tortured.
In the later 1990s in Afghanistan, he was punched in the face by the disgruntled parent of one of his students which damaged his front teeth.
On another occasion, he was assaulted through a car window and injured his back as a result of fending off the attacker.
In 2010, he was convicted in Western Australia of fraud and served three years in prison. During his time in prison, he suffered from depression.
He has been married three times and has seven children.
Not surprisingly, at various times prior to the car accident, the plaintiff:
(a)suffered from post-traumatic stress disorder and depression;
(b)had complained to doctors on a number of occasions of back pain, neck pain and numbness in his hands; and
(c)had very poor dental health and lost a number of his teeth.
And then on 25 February 2014 he was in, what objectively can be described as, a minor to moderate car accident. Given the numerous difficulties and challenges the plaintiff has faced throughout his life, it was simply implausible that any of his alleged injuries, other than short-term back and neck pain, were caused by the car accident. I found the plaintiff's evidence as to his physical and mental health, both before and after the car accident, to be neither credible or reliable.
On the other hand, I found the evidence of the expert medical witnesses, called by both the plaintiff and the defendant, to be honest, accurate and reliable. The differences in their expert opinions, to the extent there were differences, are explicable by reference to the inconsistent medical and personal history provided to each of them by the plaintiff. When the expert evidence is assessed having regard to the contemporaneous documents in evidence, it, as a whole, supports the finding that the plaintiff's alleged injuries, aside from short-term neck and back pain, were not caused by the car accident.
For the reasons that follow, I find that the car accident caused the plaintiff to suffer short-term back and neck pain only, that is for a period of two months at the most. The plaintiff has otherwise failed to prove, on the balance of probabilities, that the car accident caused him any injuries or residual disabilities.
The plaintiff has also failed to prove, on the balance of probabilities, that he suffered any loss as a result of his short-term neck and back pain. I am not satisfied that the employment opportunities with Habib's Halal Meat Shop and/or Fun and Learn Child Care Centre (Fun and Learn) were legitimate offers of work made by the plaintiff's relatives to the plaintiff. Even if either of them was legitimate, I am not satisfied that the plaintiff's short-term back and neck pain prevented him from taking up either of those offers of employment. I am also not satisfied that his short-term neck and back pain rendered him unfit to do any other work.
For these reasons, I dismiss the plaintiff's claim in its entirety.
Plaintiff's case
The plaintiff says that as a result of the car accident he suffered the following injuries:
(a)lumbar joint sprain;
(b)lower, upper and mid back pain;
(c)lower back pain radiating down both legs;
(d)neck pain radiating to both arms;
(e)loosening of teeth;
(f)numbness in both hands;
(g)psychiatric/psychological shock;
(h)shock; and
(i)soft tissue injury to the lumbar spine, upper back, mid back and neck.[2]
[2] Amended statement of claim filed 14 May 2021 (SOC), par 10.
The plaintiff says that, as a result of those injuries caused by the car accident, he has received, and will continue to receive, the following medical treatment:
(a)consultations with and treatment by general practitioners;
(b)consultations with and treatment by medical specialists and other health professionals;
(c)dental consultations;
(d)hydrotherapy;
(e)lumbar and thoracic range mobilisation and deep tissue massage of the surrounding area;
(f)exercise;
(g)X-ray and CT scans; and
(h)pain medication.[3]
[3] SOC, par 11.
The plaintiff says that, as a result of the car accident, he has sustained the following residual disabilities:
(a)pain;
(b)anxiety;
(c)anger/irritability;
(d)impairment and reduced function in the back and neck;
(e)reduced capacity to walk, stand, sit, drive, bend, stoop, crouch, squat, knell, prepare food, clean, dress, vacuum, mop and rake; and
(f)restriction of social and household duties.[4]
[4] SOC, par 12.
The plaintiff says that he has suffered and will continue to suffer loss, pain, incapacity, discomfort, loss of enjoyment of life, inconvenience and damage as a result of his injuries, medical treatment and residual disabilities which were all caused by the accident.[5]
[5] SOC, par 13.
The plaintiff says that, in January 2014 (the month before the accident) he was offered two jobs. One was with Habib's Halal Meat Shop as a supervisor and the other was with Nabi Corporation trading as Fun and Learn. He says that both jobs required him to do physical work and that, as a result of the accident, he was not able to take up either employment opportunity. The income offered by Habib's Halal Meat Shop (the highest paid of the two employment offers) was $78,900 gross ($60,526 net) per annum for the first six weeks, which then would have increased to $103,900 gross ($76,545 net) per annum thereafter. The plaintiff says, but for the accident, he would have commenced working at Habib's Halal Meat Shop from 15 March 2014.[6]
[6] Plaintiff's particulars of damage (POD), par 1(c).
After the accident, the plaintiff was able to return to Afghanistan. In Afghanistan he obtained work as a university lecturer, earning approximately AUD$50 per week from January 2015 until June 2019. He earnt a total of AUD$11,700 (gross and net).[7]
[7] POD, par 1(f).
The plaintiff claims the following damages:
Past Loss of Earnings: $410,784.66
Future Loss of Earnings: $473,876.00[8]
Past Loss of Superannuation: $46,718.30
Past Medical and Pharmaceutical Expenses: $10,000.00
Future Medical and Pharmaceutical Expenses: $50,000.00
Out of Pocket Expenses: $2,000.00
Interest on Past Loss: $76,585.99
Total:$1,069,964.95
Plus:Non Pecuniary Loss to be determined by the court
and costs and disbursements.[9][8] Based on the income he would have received from Habib's Halal Meat Shop until the age of retirement at 67.
[9] POD summary.
Defendant's case
The defendant does not admit that the plaintiff suffered the injuries he alleges and therefore does not admit that he suffered any loss.
In any event, the defendant denies that the plaintiff's alleged injuries were caused by the accident. The defendant says that if the plaintiff does suffer from the injuries he alleges, they were caused by or materially contributed to by his pre-existing and unrelated medical complaints.[10]
[10] Amended defence filed 9 June 2021 (Defence), pars 3, 4.
The defendant also says that the plaintiff's alleged economic loss was caused or materially contributed to by his pre-accident convictions and subsequent incarceration for offences of obtaining a financial advantage by deception and gaining a benefit by fraud.[11]
[11] Amended Defence, par 5.
Issues to be determined
The following issues arise for determination:
(a)did the car accident cause the plaintiff's alleged injuries;
(b)did the plaintiff suffer loss as a result of any injuries caused by the car accident; and
(c)if so, what is the quantum of that loss?
The assessment of the plaintiff's credibility is central to the determination of these issues.
Evidence at trial
Lay witnesses
The plaintiff adduced evidence from Ms Masuma Lateef, his sister and director of Fun and Learn.
The plaintiff also gave evidence.
Expert Witnesses
The plaintiff adduced expert evidence from the following witnesses:
(a)Dr Hamza Amira, general practitioner;
(b)Dr Fredrick Ng, psychiatrist;
(c)Dr Neil Ozanne, occupational therapist; and
(d)Dr Elisabeth Staer, dentist.
The plaintiff also tendered the plaintiff's medical records from his general practitioner, Dr Al-Qubaisy, with the consent of the defendant.[12] Dr Al‑Qubaisy was not able to be located to be called as a witness.
[12] Exhibit 16.
The defendant adduced expert evidence from the following witnesses:
(a)Dr John Suthers, occupational therapist;
(b)Dr Anthony Mander, psychiatrist; and
(c)Associate Professor (AP) Michael Wren, orthopaedic surgeon.
Expert Evidence - general observations
No issue was taken with the expertise of each of these expert witnesses, and I find them each to be duly qualified to have given the opinions which they did.
There were not significant or material differences in the opinions given by the experts called by each party. What may have first appeared to be a difference in opinion between the relevant expert witnesses on an issue was generally explicable by reference to the differing medical and factual history given to each of the experts by the plaintiff.
There was no expert evidence capable of supporting a finding that the plaintiff suffered any injuries (other than short-term back and neck pain), either physical or psychological, that were caused by the car accident.
Therefore, I must be satisfied, on the balance of probabilities, as to the honesty, accuracy and reliability of the plaintiff's evidence in order to find that the injuries and attendant pain and symptoms he complained of, and continues to complain of, were more likely than not caused by the car accident. The plaintiff's credibility as a witness is therefore, at the heart of this case.
Did the car accident cause any of the plaintiff's alleged injuries?
In order to determine this issue, I will address the following:
(a)the legal principles governing causation;
(b)the plaintiff's personal background;
(c)the plaintiff's relevant medical history prior to the accident;
(d)the circumstances of the car accident;
(e)the plaintiff's symptoms and injuries after the car accident; and
(f)an assessment of the plaintiff's credibility.
Overview of legal principles of causation
The Civil Liability Act 2002 (WA) (the CLA) does not displace the common law in determining causation. It does however, provide a guide to that determination. Both the common law and the CLA require the court to engage in a two-step process when considering causation - firstly, the court must determine 'factual causation' and secondly, the court must determine the appropriate 'scope of the defendant's liability'.
Section 5C of the CLA provides:
5C. General principles
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
The plaintiff bears the onus of proving, on the balance of probabilities any fact that is relevant to the issue of causation: CLA s 5D.
If the evidence establishes that the cause of the harm to the plaintiff is as a result of a number of conditions, the court must find that the car accident contributed to the plaintiff's harm in the sense that the car accident was necessary to complete a set of conditions that are together sufficient to account for the harm to the plaintiff. It is not necessary to determine the relative contribution of each of conditions to the harm, only that each condition was a part of a set of conditions that was necessary to cause that harm.[13]
[13] Strongv Woolworths Ltd [2012] HCA 5 [20]; (2012) 246 CLR 182.
Alternatively, the court may find that factual causation is established if the car accident 'materially contributed' to the harm, in the sense that its contribution to the harm to the plaintiff was not negligible.[14]
[14] Lyle v Soc [2009] WASCA 3 [40] (Steytler P).
It is not sufficient for the plaintiff to prove the mere possibility that the car accident caused the plaintiff to suffer harm or that the car accident may have been a cause of the plaintiff's harm. The plaintiff is required to satisfy the court that it is more probable than not that the car accident caused the plaintiff harm.[15]
[15] Amaca Pty Ltd v Ellis (2010) 240 CLR 111 (Amaca v Ellis) [70] (the Court).
If there is no direct proof that the accident caused the plaintiff harm, the court may draw as inference to establish causation. In order to draw such an inference, the court must be satisfied that the circumstantial evidence is 'sufficiently strong and coherent to support a definite inference to that effect'.[16] The drawing of such an inference is 'an exercise of the ordinary powers of human reason in the light of human experience'.[17]
[16] East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147 (EMHS v Ellis) [264] (Quinlan CJ, Mitchell JA & Beech JA).
[17] Fazio v Fazio [2012] WASCA 72 (Fazio v Fazio) [46] (Murphy JA).
It may be the case that expert medical evidence precludes the court from drawing an inference as to causation. In order for this to occur, firstly, that expert evidence must be accepted by the court and secondly, that expert opinion evidence must be that the inference is not justifiable probable and/or that it is not an accepted hypothesis. It does not mean, however that the plaintiff is required to prove, by expert evidence, that the car accident caused the harm to the plaintiff.
As Dixon J said in Adelaide Stevedoring Co Ltd v Forst:[18]
… upon question of fact of a medical or scientific description, a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.
[18] Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 cited with approval in Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36 (Amaca v Booth) [69]; and in EMHS v Ellis [267].
In EMI (Australia) Ltd v BES,[19] Herron CJ summarised the role that expert evidence has in determining the question of factual causation:
Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
[19] EMI (Australia) Ltd v BES [1970] 2 NSWR 238, 242 (Herron CJ).
If the defendant asserts that any of the plaintiff's injuries were caused by pre-existing conditions, the onus is on the defendant to disentangle and quantify the extent of his injuries caused by such pre‑existing conditions.[20]
[20] Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
In summary, in order to establish causation in this case:
(a)the plaintiff must prove, on the balance of probabilities, that the car accident was a necessary condition of the occurrence of the plaintiff's injuries: CLA s 5C(1)(a);
(b)alternatively, the plaintiff must prove that the car accident materially contributed to the plaintiff injuries: CLA s 5C(2); and
(c)if the plaintiff can prove either (a) or (b) (that is factual causation), the plaintiff must also prove that it is appropriate for the scope of the defendant's liability to extend to the harm so caused: CLA s 5C(1)(b) or s 5C(2)(a) and (b).
The plaintiff's personal history
As was evident from the personal history the plaintiff gave to several medical practitioners, the plaintiff was often inconsistent in the details he provided to those medical practitioners. Therefore, the following facts that I find in relation to the plaintiff's personal history are established by the medical records, other contemporaneous documents and the evidence the plaintiff gave at trial, so far as it is not inconsistent with those documents.
The plaintiff was born on 5 January 1959 in Kabul, Afghanistan. He has three younger brothers and four younger sisters.[21]
[21] ts 21.
He completed Grade 12 in Kabul in 1976 (equivalent of Year 12 in Australia). In early 1979, the plaintiff went to the USA to study as a private university student.[22] He remained in the USA for seven months before travelling to Australia in August 1979 after obtaining a visa to study in Australia.[23]
[22] ts 21.
[23] ts 21 - ts 22.
The plaintiff gave evidence that he applied to become a refugee when Afghanistan was invaded by the USSR in 1978. He met his first wife, Carol, in Australia in 1979 and they later got married.[24]
[24] ts 22.
The plaintiff was admitted to Queensland University in 1980. The plaintiff bought his first house in Brisbane in 1981.[25]
[25] ts 22.
The plaintiff's parents and siblings fled Afghanistan and became refugees in Pakistan. As a result, the plaintiff deferred his studies and worked full-time to support his family.[26] He and Carol separated and divorced because, the plaintiff said, she could not cope with the burden of supporting the plaintiff's family.[27]
[26] ts 22.
[27] ts 22.
The plaintiff travelled to Pakistan in 1981 to visit his family and to assist them to apply to migrate to Australia. During this visit to Pakistan, he met a refugee woman and married her under Muslim Law.[28]
[28] ts 23.
The plaintiff and his family returned to Brisbane in 1982. The plaintiff gave evidence that between 1982 and 1989, he worked, studied and was involved in Afghan community work.[29]
[29] ts 23.
In 1989, the plaintiff graduated from Queensland University with a Bachelor of Arts majoring in religion and government. The plaintiff and his second wife then moved to Perth.[30]
[30] ts 23.
Shortly thereafter, the plaintiff, his second wife and two children went to Saudi Arabia. The plaintiff studied Arabic and Islamic studies and obtained a diploma.[31]
[31] ts 24.
There is some divergence in the evidence as to whether the plaintiff was imprisoned in a Russian prison in Pakistan (on the border of Afghanistan) in 1985 or 1990.[32] The year in which that occurred does not have any impact upon my reasons. The fact that it occurred and what occurred while the plaintiff was in prison is not in issue. The plaintiff was imprisoned for a period of three to four months on the basis that he was suspected of being a spy for the Australian government. During that period of imprisonment, the plaintiff was tortured by having his right index finger placed in hot oil, having his head immersed in water until he thought he was drowning and being subjected to sensory deprivation, disorientation in times and interrogation at unpredictable times.[33] He was released when the Russians evacuated Jehalabad.
[32] Exhibit 23, page 1 (1985); ts 95 (1990).
[33] Exhibit 23; ts 106 - ts 107.
In 1994, the plaintiff and his family returned to Perth and the plaintiff was employed as a full-time teacher in the Australian Islamic College until 2002.[34] The plaintiff was also enrolled in a PHD preliminary course at the University of Western Australia. He completed this course in 1995.[35]
[34] ts 25.
[35] ts 25.
In 2003, the plaintiff founded a Muslim ladies' college in Australia which was named Muslim Ladies College of Australia (MLCA). The plaintiff was one of three directors of MLCA.[36]
[36] ts 25 - ts 26.
In 2007, the plaintiff established an Australian college in Kabul, Afghanistan.[37] Around this time, the plaintiff was accused of stealing MLCA money and transferring it to Kabul to fund the Taliban.[38] The MLCA was raided by the Australian Federal Police (AFP) in December 2007 and was shut down.[39] The plaintiff and another director of MLCA were each charged with stealing as a servant.[40]
[37] ts 26.
[38] ts 26 - ts 27.
[39] ts 27.
[40] ts 27.
In February 2009, the plaintiff returned to Perth in February 2009 to stand trial. The plaintiff and the other director were both acquitted of the charges of stealing as a servant.[41]
[41] ts 27.
In 2009, the plaintiff started a PHD at Curtin University in Education (he completed this in 2018).[42]
[42] ts 26.
In 2009, the plaintiff was accused of further charges relating to the MLCA. In October 2010, the plaintiff was imprisoned for three years after being convicted of two offences of fraud.[43] He was convicted on the basis that he had overstated the number of students that attended MLCA.
[43] ts 27.
Between November 2012 and January 2013, while the plaintiff was in prison, he was permitted to work during the day in Habib's Halal Meat Shop under a work release program with the prison.[44] The plaintiff was released from prison in January 2013.[45]
[44] ts 29.
[45] ts 27, ts 29.
After the plaintiff's release, the plaintiff and his second wife separated. The plaintiff pronounced that they were divorced under Muslim law. They remained living in the same residence.[46]
[46] ts 29 - ts 30.
In March 2013, the plaintiff went to Afghanistan to marry his third wife (the daughter of his cousin).[47]
[47] ts 30.
The plaintiff remained in Afghanistan until early 2014. During the time he was in Afghanistan, he gave evidence that he was working as a full‑time university lecturer earning between US$2,000 and US$3,000 per month.[48]
[48] ts 38.
On 25 February 2014, the car accident occurred.
On 19 March 2014, the plaintiff returned to Afghanistan.[49]
[49] ts 53, ts 147.
The plaintiff's medical history prior to the accident
The injuries that the plaintiff alleges he suffered as a result of the accident can be categorised as falling within one of four categories:
(a)injuries to his back and/or neck;
(b)numbness in his hands;
(c)psychological and/or psychiatric injuries; and/or
(d)injuries to his teeth.
I will first summarise the evidence in relation to the plaintiff's medical history prior to the accident by reference to each of these categories.
Back and neck pain
The plaintiff told Dr Al-Qubaisy that he had back pain on 4 March 2010 (severe constant back pain),[50] 9 August 2010 (lower back pain, tenderness and limitation of movement),[51] and 26 August 2010 (still lower back pain, specially when he bend [sic]).[52]
[50] Exhibit 2, page 111.
[51] Exhibit 2, page 111.
[52] Exhibit 2, page 111.
On 6 August 2010, the plaintiff attended the emergency department at the Fremantle Hospital. The emergency medicine summary recorded the following:
History of Presenting Complaint:
[Patient] presents with acute back pain. [Patient] allegedly assaulted in car, through car window. Alleged attack with broken bottle to face and chest. [Patient], whilst sitting in car, defended + push alleged attacker back through window. Required to be rotated to left, pushing at shoulder level. Pain lower back, worse with movement and direct palpitation, nil radiation, no neuropathic/sciatic symptoms/no parathesia. [Patient] felt immediate back pain, which progressed to limit mobilization. Denied [loss of consciousness], visual changes, neck pain [shortness of breath] or pain radiation …
…
Principal Diagnosis
Injury -+Sprain/Strain -+Back/Spine – Back Muscle Spasm. Minor exconations[53]
[53] Exhibit 2, page 152.
In examination-in-chief, the plaintiff gave evidence that, up until March 2013:[54]
I had absolutely no problem with my back. I had no … problem with my psychological issues. I was very happy, very productive again in Afghanistan, starting my full-time lecturing at the university, started a new life. It was - it was a very happy, normal [life] and I had an issue - come to my issue with back pain or - or neck pain or anything like that, and I had no psychological issue. We - we lived a very normal life.
Numbness in hands
[54] ts 31.
On 11 February 2014, the plaintiff visited Dr Al-Qubaisy. Dr Al‑Qubaisy recorded that the plaintiff 'has numbness in the right hand for one year getting worse recently'.[55]
[55] Exhibit 2, page 109.
When asked, in cross-examination if he had numbness in his hands prior to the car accident, he said '… could have been. I don't know'.[56] He said that it was short-lived and compared it to 'pins and needles'.[57]
Psychological/psychiatric issues
[56] ts 380.
[57] ts 385.
The plaintiff gave evidence that, prior to his return to Afghanistan in March 2013, he had no psychological issues and that he was very happy and very productive.[58]
[58] ts 31.
The plaintiff told Dr Ng that whilst he was in prison, he was depressed for three months and then his depression resolved.[59] The plaintiff told Dr Ng that prior to the car accident, he was 'sociable, confident, happy and did not usually unduly worry'.[60]
[59] Exhibit 28, page 5.
[60] Exhibit 28, page 7.
The plaintiff gave evidence that, from the time that he got out of the Russian prison until the time that he went to prison in Western Australia in 2010, he had no psychological issues.[61]
[61] ts 105.
While the plaintiff was imprisoned in Western Australia between 2010 and 2013, he was seen by various medical professionals. The Department of Justice documents record the following:
•On 10 December 2010, a cognitive skills initial assessment was performed on the plaintiff at Hakea prison. The assessment records that 'Mr Sayed stated that prior to and during the current offending, he was psychologically down and was also quite depressed due to his father dying from cancer. In addition, he advised that he was tortured whilst he was in a prison in Afghanistan in 1985, which had had ongoing effects on his psychological wellbeing. As a result of both, he stated that he was at the stage of emotional vulnerability when the current offences took place'.[62]
[62] Exhibit 25, page 1143.
•On 22 December 2010, a registered nurse referred the plaintiff to the mental health team and recorded an assessment of 'has PTSD. Suggest see psychiatrist'.[63]
[63] Exhibit 25, page 1538.
•On 29 December 2010, a registered nurse recorded an assessment of 'Anwar was distressed and in tears throughout the interview. Described being incarcerated and tortured by Russians in 1985. Recent incarceration has brought back vivid memories of the trauma. Poor sleep. Anxious - 'feels like being shaken by a crocodile. Like someone sitting on my chest. The days are long and the nights are dark'.[64]
•On 11 January 2011, the medical officer reported that the plaintiff told him 'I don't feel like eating. I lose weight. I'm in stress because of this. My psychiatrist saw me, tells me I suffer PTSD'. The medical officer also records that the plaintiff advised him that his mother, brother and sister suffered from depression.[65]
•On 29 March 2011, the plaintiff is prescribed with antidepressant medication (Fluvoxamine).[66]
•On 6 April 2011, the plaintiff told the registered nurse that he doesn't think that the antidepressant is working and that he is not sleeping well. The nurse increased the dose of his antidepressant medication. The nurse also noted that the plaintiff is continuing to have counselling to address his PTSD.[67]
•On 10 May 2011, the medical officer increased the plaintiff's antidepressant dose again in response the plaintiff telling him he was not fully responding to the last increase.[68]
•On 19 May 2011, the registered nurse recorded the plaintiff as presenting as sad and tearful.[69]
•On 28 July 2011, the plaintiff told the registered nurse that 'I'm feeling down and depressed. Losing hope. Want to hang onto it. Last time I felt happy was in hospital. I had my family around me. On a 0 to 10, 0 is sad and happy 10, I choose 0. I feel sad. I get headaches day and night. I have a lot of fear. Talking makes me tearful. I don't want to cry. I take my medication every night. I don't think the antidepressant is working'.[70]
•On 23 August 2011, he told a member of the Co-Morbidity Team that he feels quite depressed.[71]
•On 22 November 2011, the plaintiff told the medical officer 'I am fine. I have been out for a family meeting and it was good. You don't feel you are in prison any more. They are still giving me sleeping tab'.[72]
•On 29 December 2011, the plaintiff told a member of the Co‑Morbidity Team that he is still the same in terms of his depression. The assessment indicates that the plaintiff sees prisoner care services frequently for support for PTSD issues.[73]
[64] Exhibit 25, page 1537.
[65] Exhibit 25, page 1536.
[66] Exhibit 25, page 1531.
[67] Exhibit 25, page 1530.
[68] Exhibit 25, page 1528.
[69] Exhibit 25, page 1527.
[70] Exhibit 25, page 1524.
[71] Exhibit 25, page 1523.
[72] Exhibit 25, page 1520.
[73] Exhibit 25, page 1520.
On 27 November 2010, Dr Paul Skerritt, psychiatrist, performed a psychiatric assessment of the plaintiff in Hakea prison. Dr Skerritt considered the effects of imprisonment on the plaintiff, in light of his previous imprisonment during the Russian invasion of Afghanistan. Dr Skerrit was of the opinion that:
•The plaintiff's responses at the time of his imprisonment by the Russians was well into the range of an actual psychiatric diagnosis. The plaintiff felt scared, hopeless and as if he was going to die.
•The plaintiff's symptoms continued after his return to Australia and perhaps for a few years. He had recurring dreams and images of his experiences. He found difficulty in relationships and fitting into normal family life.
•The plaintiff's symptoms generate a clear diagnosis of post‑traumatic stress disorder. The plaintiff's symptoms faded but over a longer period than usual.
•The plaintiff also had symptoms of depression which accompanied his PTSD. These symptoms were persisting sadness and tearfulness, hopelessness, self‑deprecation and guilt. These symptoms worsened in 2006 - 2007 when his father had a terminal illness and died.
•Since he was imprisoned in October 2010, he had a recurrence of his PTSD by reminders of the previous experience and his depressive symptoms worsened.
•The plaintiff's diagnosis was in the frequently coinciding depressive and anxiety disorders, being PTSD.
•The plaintiff had a strong family history of treated depressive disorder and therefore he has a predisposition to depressive and anxiety disorders. The illnesses the plaintiff suffers from often run an intermittent course with the potential for further activation by stressful circumstances.[74]
[74] Exhibit 23.
On 6 February 2013, the plaintiff saw Dr Al‑Qubaisy at Carousel Medical Centre. Dr Al‑Qubaisy completed a GP Mental Health Care Plan which recorded the plaintiff as 'feeling down, depressed, loss of interest, sleeping problem for three years' duration, under a lot of stress, history of PTSD'.[75] In cross-examination, the plaintiff said that this was a reference to his three years in prison. The plaintiff gave evidence that the depression continued only a few weeks after his release and then everything was 'rosy'.[76]
[75] Exhibit 2, page 110.
[76] ts 102 - ts 103.
On 9 February 2013, the plaintiff attended a psychology session with Adam Ates, psychologist of Soul Psychology. Joyce Bok, a psychologist also with Soul Psychology wrote to Dr Al‑Qubaisy on the same day and advised him that the plaintiff seemed 'to have engaged very well in the counselling and learning how to manage his depression and post‑traumatic stress disorder'.[77]
[77] Exhibit 2, page 161.
On 21 January 2014, Dr Al‑Qubaisy provided the plaintiff with a medical certificate certifying the plaintiff as unfit for work for a month up to 21 February 2014.[78] He was therefore unfit for work up to four days prior to the accident.
[78] Exhibit 39.
On 29 January 2014, the plaintiff saw Dr Al‑Qubaisy. Dr Al‑Qubaisy's notes record that the plaintiff described himself as 'depressed with a loss of interest'.[79] Dr Al‑Qubaisy provided the plaintiff with a GP Mental Health Care Plan noting 'loss of interest for few years' duration'.[80]
[79] Exhibit 2, page 109.
[80] Exhibit 21.
In cross-examination, the plaintiff said that he was not depressed on 29 January 2014, but rather he was 'troubled that every time I came back from Afghanistan, because I was married cos I was happy, my ex‑wife … was causing trouble and at first I was troubled'.[81]
[81] ts 97.
On 17 February 2014, the plaintiff attended a psychology session with Rebecca Campbell at Soul Psychology. On 20 February 2014, Ms Bok, psychologist from Soul Psychology, wrote to Dr Al‑Qubaisy and advised that the plaintiff had engaged very well in the counselling session.[82]
Teeth
[82] Exhibit 2, page 165.
The plaintiff gave evidence that, prior to 2013, he had issues with his teeth. He said that, when he was lecturing in Afghanistan, a disgruntled parent of a student assaulted him. He said that he was punched in the face and, given the parent was a martial arts master, it was a very strong punch that loosened his front teeth. (He told Dr Ozanne that this assault occurred in the late 1990s.)[83] He said that later on those front teeth were removed and that he was seeking to have an implant for them in prison. He said that he was not able to have the implants done in prison.[84]
[83] Exhibit 27, page 4.
[84] ts 31 - ts 32.
The plaintiff gave evidence that he saw a dentist in Afghanistan over a few months around August to September 2013 and obtained dental implants. He gave evidence that he had five front teeth implants at a cost of US$7,708.[85] The plaintiff produced an invoice from Patit Pawan Dental Centre in Afghanistan dated 20 September 2014 for the implants.[86]
[85] ts 33 - ts 37.
[86] Exhibit 17.
The car accident
On 25 February 2014, the plaintiff was driving his wife's 2005 Ford Falcon. It was approximately 4.00 pm. The car was nine years old. There is no evidence as to the state of the car at the time of the car accident.
The plaintiff was turning into a car park off William Street in Cannington. The defendant was driving behind the plaintiff and failed to stop. She drove into the rear of the car the plaintiff was driving.
It is not in issue that the car accident was caused by the defendant's negligence. The defendant wrote a note on the same day as the car accident. She wrote, inter alia:[87]
I could not stop my car and hit it at the back. The front of my car was completely damaged and his back side was completely damaged too. He was hurt and could not get out of his car, complaining of back pain, I helped him get out of car.
[87] Exhibit 13.
The plaintiff gave evidence that he immediately felt some pain in his lower back and that he hit his face on the steering column. He said that he could not get out of the car and that he had to be helped out of the car by the defendant.[88]
[88] ts 44 - ts 45.
On 26 February 2014, the plaintiff told Dr Al-Qubaisy that the driving speed was 20 km per hour at the time of the car accident.[89] It is not clear whether this was his driving speed or the defendant's driving speed.
[89] Exhibit 2, page 108; ts 417.
On 27 February 2014, two days after the accident, the plaintiff completed a police report. He provided details of the accident which included 'to clear traffic we both got into our cars and drove into the car park for exchanging details to each other'.[90] In that police report, in response to the question 'where towed', he answered 'N/A the car was drivable'.[91]
[90] Exhibit 40, par 19.
[91] Exhibit 40, par 5.
In examination-in-chief, the plaintiff said the car was not drivable after the car accident.[92] The plaintiff also told Associate Professor Wren (AP Wren) that his car had to be towed from the scene.[93] His evidence at trial and the information he provided to AP Wren was inconsistent with his contemporaneous reporting of the accident. Given the time that had passed from the car accident until seeing AP Wren and then the even greater time until he gave evidence at trial, I prefer the version of events provided by the plaintiff only two days after the car accident in the police report.
[92] ts 46.
[93] Exhibit 47, page 4.
In 2017, the plaintiff told Dr Amira that the impact of the crash was so powerful that his car was written off.[94] The plaintiff gave evidence at trial that when the car accident occurred 'it was a huge impact'.[95] Dr Suthers recognised that many factors determined whether a car was written off, including the value of the car and the insurance company.[96] As a matter of common sense, I accept that the fact that the plaintiff's car was written off does not have any bearing upon the impact of or the speed of the cars at the time of the car accident.
[94] Exhibit 26; ts 164.
[95] ts 44.
[96] ts 416.
I therefore make the following findings in relation to the circumstances of the car accident:
(a)the plaintiff was driving a nine year old 2005 Ford Falcon;
(b)he was slowing down to turn into a car park;
(c)he was hit from behind by the defendant's car;
(d)he was helped out of his car by the defendant;
(e)his car was drivable after the car accident; and
(f)the car accident was low to moderate impact.
The plaintiff's injuries after the accident
Before considering whether the plaintiff's injuries were caused by the car accident, it is necessary to make findings about what injuries the plaintiff can establish, on the balance of probabilities, that he had after the car accident. I will consider the expert evidence in relation to each of the categories of evidence I previously identified.
Back and/or neck pain
Dr Al-Qubaisy, general practitioner
Dr Al-Qubaisy was the plaintiff's general practitioner from 2014 to 2017. Dr Al-Qubaisy was not called as a witness by the plaintiff as he was not able to be located. His notes were tendered by consent.[97]
[97] Exhibit 2.
Dr Al-Qubaisy's medical notes state:
(a)On 26 February 2014:[98]
[98] Exhibit 2, page 108.
Involved in MVA yesterday, someone hit him from the back was driving speed on 20km/hr, seat belt on no LOC [loss of consciousness], no headache has lower back pain, radiated to the left leg limitation of movement no previous back problem ex well tenderness in the mid back limitation of movement NV intact p back care advise [sic] physio Rx Panadeine Forte … Rx Brufen tablets.
(b)On 7 March 2014:[99]
[99] Exhibit 2, page 13.
Has pain lower part of the neck radiated to the both arm. Has lower back pain radiated to both legs Has normal feeling of numbness never had problem in the back and neck problem he had implanted front teeth before for one year duration - he noticed it become slightly loose from hitting the face in the sterin [sic] wheel ex well tenderness in the lower back, lower part of the neck p physio Panadol osteo tablet.
(c)On 13 March 2014:[100]
[100] Exhibit 2, page 13.
Neck pain radiated to both arms lower back pain and upper back pain ex tenderness in the lower back and lower neck.
(d)On 17 March 2014:[101]
[101] Exhibit 2, page 14.
Lower back pain and upper back pain he seeing physiotherapist not improving it is relieved with physio p panadeine tablet deepheat cream physio heat bag the patient report MEDICAL CERTIFICATE CMC was produced.
(e)On 14 July 2014:[102]
[102] Exhibit 2, page 14.
Lower and upper back pain with limitation of movement, radiated to the neck he had been treated by physiotherapy in Kapule [Kabul] seen by orthopedic pain in the left thumb ex tenderness limitation of movement p voltaren gel panedeine tablet neurfen [sic] tablet.
(f)On 5 December 2014:[103]
Lower back pain and neck pain – continue to have pain has numbness of both hands since the accident – possibly CTS he has flare up The Patient ReportK 10 was produced.
(g)On 18 December 2014:[104]
He still has pain in neck, bilateral shoulder and lower back pain p Panadol 2 tablet four times daily physiotherapy.
[103] Exhibit 2, page 16.
[104] Exhibit 2, page 13.
I find that Dr Al-Qubaisy's notes are an accurate and reliable record of the symptoms that the plaintiff reported to him at the time the plaintiff saw Dr Al-Qubaisy.
Dr Hamza Amira, general practitioner
Dr Amira is the plaintiff's general practitioner. Dr Amira was called by the plaintiff to give expert evidence. He has known the plaintiff for over 20 years, the plaintiff having been a patient of his practice in the early nineties. The plaintiff then went to another practice to see Dr Al‑Qubaisy, before returning to see Dr Amira when Dr Al-Qubaisy went overseas to work in early 2017.[105]
[105] Exhibit 26, page 1.
Dr Amira saw the plaintiff on 18 July 2017 and 23 July 2017 and prepared a report dated 4 August 2017.[106] In this report, Dr Amira states:[107]
[106] Exhibit 26, pages 1 - 3.
[107] Exhibit 26, page 2.
I saw Mr Sayed on 18/7/17 for the purpose of treating his back pain with regard to the mentioned accident. He told me … another vehicle collided into the back of his vehicle (rear end). … according to him the impact was so powerful that his Ford falcon was written off. Although he was wearing a seatbelt his head hit the steering wheel and his implanted teeth became loose and had to be removed. He continues to have pain in his back.
…
His ongoing symptoms are:
*pins and needles in both hands
*inability to carry weights
*pain in back felt with movement particularly during prayer as he kneels and prostrates
*pain made worse by driving for any length of time and getting in and out of the car
*pain radiating down both thighs
The above symptoms have been described since the accident so I take them as related to and direct consequence of the motor vehicle accident.
…
Treatment taken by Mr Sayed is:
*Simple analgesia
*he has received extensive physiotherapy and hydrotherapy in 2014. This was interrupted by travel to Afghanistan and stopped having been reviewed by Dr Suthers at the request of the Insurance Commission
*Mr Sayed does stretches and keeps active, does jogging to overcome his back pain
According to Mr Sayed there is no improvement and he continues to complain of the above symptoms.
Dr Amira prepared a second report dated 16 September 2019 in which he stated:[108]
I'm writing this letter to advise you that Mr Anwar Sayed is still seeking treatment for his back pain and depression which he attributed in [sic] his motor vehicle accident that he was involved in in 2014.
[108] Exhibit 26.
Dr Amira prepared a third report dated 17 March 2020.[109]
[109] Exhibit 26.
Dr Amira gave the following evidence:
(a)he did not make any enquiries into how much the plaintiff's car was worth or how old it was or anything of that nature to gauge the impact;[110]
(b)he was relying on the history of the plaintiff's symptoms as reported by the plaintiff to him when he said that they were directly caused by the car accident;[111]
(c)if any of the plaintiff's reported symptoms were present before the car accident, that would cause him to potentially change his view;[112]
(d)the plaintiff, as a practicing Muslim, would pray every day five times which involves prostrating and bending at least 17 times, this stretches the whole body;[113]
(e)the plaintiff had told him on 29 June 2017 that he went running for an hour every night which suggests that the plaintiff had a reasonable level of fitness;[114]
(f)he was sure the plaintiff was able to work as a lecturer or teacher and any other sedentary or administrative type occupation;[115]
(g)there was no structural damage to the plaintiff's spine. It was the plaintiff's own complaints of pain and the fact that Dr Amira believed the plaintiff had not done any physical work previously that prevented him undertaking more physical work;[116] and
(h)in his second report, he clarified that the plaintiff attributed his back pain and depression to the car accident, not that he was attributing his symptoms to the car accident.[117]
[110] ts 164.
[111] ts 165.
[112] ts 165.
[113] ts 167.
[114] ts 168.
[115] ts 168.
[116] ts 168 - ts 169.
[117] ts 170.
I find the evidence of Dr Amira to be credible and reliable. I also find that Dr Amira's opinion as to the injuries caused by the car accident was dependent upon the medical history provided by the plaintiff and subjecting reporting of symptoms by the plaintiff.
Dr Ozanne, specialist occupational physician
Dr Ozanne was called by the plaintiff to give expert evidence. He prepared a report in which he assessed the plaintiff's teeth, neck and back injuries.[118] Dr Ozanne saw the plaintiff on one occasion for 4.5 hours and approximately seven years after the accident.[119] Dr Ozanne's report records his opinion as at the day that he saw the plaintiff, that being 29 July 2020.[120]
[118] Exhibit 27.
[119] ts 179.
[120] ts 190.
Dr Ozanne reported that:[121]
Dr Sayed stated that he had never had an injury of or problem with his neck or back prior to 2014.
[121] Exhibit 27, page 4.
Dr Ozanne noted that the plaintiff's medical records provided to him reported that, in August 2010, the plaintiff had lower back pain due to strain while defending himself from an attack while in his car.[122] Dr Ozanne gave evidence that the medical history provided by the plaintiff to him in relation to no back or neck injury prior to 2014 was incorrect.[123]
[122] Exhibit 27, page 4.
[123] ts 182, ts 184.
Dr Ozanne gave evidence that the most important part of the plaintiff's physical injuries was his reported groin pain at the time of the accident, which resulted in him requiring assistance to get out of his car.[124]
[124] ts 183; Exhibit 27, page 5; ts 191.
Dr Ozanne accepted that, if the plaintiff was able to run for an hour a day in 2017, he would be capable of working as a lecturer.[125] Dr Ozanne was told by the plaintiff that his jogging was limited to 5 to 10 minutes due to pain.[126]
[125] ts 198.
[126] ts 206; Exhibit 27, page 7.
Dr Ozanne gave the following evidence in response to a question from me:[127]
Q: But you say, Dr Ozanne, that the running for one hour a day is not consistent with [your theory that the plaintiff had gotten progressively weaker and worse from not doing the right exercise after the accident]?
A: No. No - if you can run for an hour, you can stand for an hour … most people can walk for longer than they can stand still but to run for an hour versus standing for an hour, that's … hard to believe.
[127] ts 204.
Dr Ozanne also gave evidence that, in order to form the opinion that the plaintiff had low employability due to the need for the plaintiff to sit during lectures and not being energetic, that he was reliant upon and accepting of what the plaintiff told him.[128]
[128] ts 199.
I found Dr Ozanne to be a credible and reliable witness. I also find that Dr Ozanne's opinion as to the injuries caused by the car accident was dependent upon the medical history provided by the plaintiff and subjecting reporting of symptoms by the plaintiff. Dr Ozanne does not express his own opinion as to the plaintiff's capacity for work, he accepts what the plaintiff told him was his capacity for work.
Dr Suthers, occupational therapist
Dr Suthers was called by the defendant as an expert witness. Dr Suthers saw the plaintiff on three occasions - 23 December 2014, 14 January 2020 and 17 August 2021. Dr Suthers prepared reports following each of these visits.[129]
[129] Exhibit 42.
Dr Suthers gave evidence that:
(a)the plaintiff, in providing his medical history, denied any history of trauma, psychological or physical, sports injuries, workers compensation claims, back, neck or shoulder problems;[130]
(b)the plaintiff complained that he was not able to sit for long periods of time but sat with little difficulty during the consultation for an hour;[131]
(c)the treatment that he recommended was doing things normally, to go swimming, walking but that there was no need for the plaintiff to have physiotherapy;[132]
(d)he has seen no reason physically why the plaintiff could not do his normal job as a lecturer and that pain was not a contraindication of the ability to do more physical jobs;[133] and
(e)in his view, the plaintiff's complaints of pain were historically related rather than casually related to the car accident.[134]
[130] ts 410.
[131] ts 413.
[132] ts 422.
[133] ts 450.
[134] ts 422.
I found Dr Suther's evidence very persuasive. Dr Suthers conducted a thorough review of the plaintiff's medical records and made the observation that the plaintiff denied any history or back or neck pain (amongst other pre‑existing injuries and symptoms) to Dr Amira and Dr Ozanne. I accept Dr Suther's evidence that there is no physical reason why the plaintiff could work as a lecturer or do more physical jobs after the accident.
Associate Professor Wren, orthopaedic surgeon
AP Wren was called by the defendant to give expert evidence. AP Wren reviewed the plaintiff on 16 June 2021 and produced a report dated 12 August 2021.[135]
[135] Exhibit 47.
AP Wren gave evidence that:
(a)he did not believe that the plaintiff had any residual spinal disability as a result of the car accident;[136]
(b)it was possible that the plaintiff may have sustained sprains to his lumbar spine and some muscle soreness but these symptoms would not be expected to last more than a few months;[137]
(c)that the plaintiff might have experienced some hindrance of employment for a period of one to two months but no impairment of capacity of employment, normal day to day activities, domestic tasks or recreational pursuits beyond that period;[138]
(d)he had a low expectation that there was a physical cause attributable to the car accident that would prevent the plaintiff from education employment;[139]
(e)he did not believe that the isolated incident of the car accident had any long-term consequences and he did not believe that the car accident was responsible for the plaintiff's current self‑reported symptoms;[140] and
(f)there is no orthopaedic explanation for the persistence of pain attributable to the motor vehicle accident, or any injury sustained in the motor vehicle. There was nothing in the plaintiff's medical records that he was taken to, both before and after the car accident, that changes his opinion.[141]
[136] ts 469.
[137] ts 470.
[138] ts 471.
[139] ts 470.
[140] ts 470.
[141] ts 488, ts 502.
AP Wren was a very compelling and highly qualified expert witness. I accept his evidence that there is no orthopaedic explanation for the plaintiff's reported pain, symptoms or any injury that was attributable to the car accident.
Numbness in hands
The plaintiff visited Dr Al-Qubaisy on 5 December 2014. Dr Al‑Qubaisy recorded that the plaintiff reported continuing lower back and neck pain and numbness in both hands since the accident.[142]
[142] Exhibit 2, page 16.
The plaintiff gave evidence that if he stands for 15 - 20 minutes or longer, he gets pain in his back and numbness on his fingers. He said he then has to be seated or lean on something.[143]
Dr Hamza Amira, general practitioner
[143] ts 74, ts 85.
Dr Amira confirmed that the plaintiff did not tell him that prior to the accident that he had reported to Dr Al-Qubaisy that he had numbness in his right hand for one year. When asked, in cross‑examination, given that fact, whether it would cause some doubt to be cast on his opinion that the numbness in the plaintiff's hands was resulting from the car accident, Dr Amira said 'I guess it very well does, yes'.[144]
[144] ts 166.
I accept the evidence of Dr Amira that the fact that the plaintiff had reported numbness in his right hand immediately before the car accident causes doubt to be cast on his opinion that the numbness in the plaintiff's hands was caused by the car accident.
Psychological/psychiatric injuries
Dr Amira, general practitioner
Dr Amira was called to give expert evidence by the plaintiff. Dr Amira gave evidence that, in his opinion, if the plaintiff complained of depression two weeks before the car accident, then the car accident did not cause the depression. The car accident might have contributed to his depression.[145]
[145] ts 170 - ts 172.
I accept Dr Amira's evidence.
Dr Ng, psychiatrist
Dr Ng assessed the plaintiff on 5 August 2020 and prepared a report dated 17 February 2021.[146] Dr Ng revised his report in evidence after reviewing the report of Dr Paul Skerritt, a psychiatrist who had provided an independent medico-legal psychiatric assessment of the plaintiff in November 2010 whilst he was incarcerated in Western Australia.[147]
[146] Exhibit 28.
[147] ts 209.
The plaintiff was not working prior to the car accident. The employment offers from Habib's Halal Meat Shop and Fun and Learn were not genuine. There is no evidence of attempts by the plaintiff to gain any other employment in the two months after the car accident.
In all of the circumstances, I find that the plaintiff suffered no economic loss, past or future, as a result of the short-term back and pain that was caused by the car accident.
Medical and pharmaceutical expenses
Given I have found that the plaintiff suffered short‑term back and neck pain for the two month period after the car accident, and that such pain was caused by the car accident, he is entitled to past medical and pharmaceutical expenses associated with treatment of the short‑term back and neck pain for that two month period.
The plaintiff particularised his past medical and pharmaceutical expenses, including dentist consultations, as a global amount of $10,000. As I have found that his dental issues were not caused by the car accident, he is not entitled to any dentist expenses. I assess the amount of past medical expenses for the two month period following the car accident to be $1,000.
The plaintiff is not entitled to any future medical and/or pharmaceutical expenses.
Out of pocket expenses
I assess the cost of travel to and from appointments and the cost of parking in the two‑month period following the car accident in the amount of $100.
Non-pecuniary loss
Non-pecuniary loss means pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm: Motor Vehicle (Third Party Insurance) Act 1943 (WA) (MVA) s 3C.
In assessing damages for non-pecuniary loss, the court does not engage in a mathematical calculation. The measure of damages assessed should reflect a fair compensation for pain, inconvenience and loss of enjoyment of life that the plaintiff has sustained as a result of the injuries caused by the car accident.[232]
[232] Phillips v London & South Western Railway Company (1879) 5 QBD 78, 80.
The plaintiff's claim for non-pecuniary loss is subject to s 3C of the MVA which provides that the maximum prescribed amount (currently $447,000) is to be awarded 'only in a most extreme case'. Section 3C(4) of the MVA provides that if the amount of non-pecuniary loss is assessed to be 'Amount B or less', then an award for non‑pecuniary loss is precluded.
Any non-pecuniary loss that the plaintiff suffered as a result of his short‑term back and neck pain caused by the car accident was minor. As a result, any award for non-pecuniary loss is precluded by operation of s 3C(4) of the MVA. Amount B is currently $23,500. This is the threshold amount that must be exceeded in order to make an award for non-pecuniary loss.
Based upon all the evidence, I assess Mr Sayed's non-pecuniary loss to be no more than 2% of a most extreme case. Given this figure is not more than the threshold amount that can be awarded, the plaintiff's claim for an award of damages for non-pecuniary loss must, as a matter of law, be dismissed.
Conclusion and orders
The car accident did not cause, or materially contribute to, any of the plaintiff's alleged injuries, other than short-term back and neck pain.
As a result of that short-term back and neck pain, I accept that the plaintiff was not able to work for two months.
The plaintiff was not employed immediately prior to the car accident. The offers of employment received by the plaintiff from Habib's Halal Meat Shop and Fun and Learn were not genuine offers of employment. The plaintiff had no other offers of employment in that two‑month period.
Therefore, the plaintiff did not suffer any past or future economic loss as a result of his short-term neck and back pain.
I assess the plaintiff's past medical and pharmaceutical expenses at $1,000 and his out of pocket expenses at $100.
I assess Mr Sayed's non-pecuniary loss to be no more than 2% of a most extreme case. Given this figure is not more than the threshold amount that can be awarded, the plaintiff's claim for an award of damages for non-pecuniary loss must, as a matter of law, be dismissed.
I award the plaintiff $1,100 in damages. I will hear the parties as to the form of final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CB
Associate to her Honour Judge Whitby
19 AUGUST 2022
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