Tamerji v Gavin

[2007] NSWDC 118

CITATION:	Tamerji v Gavin [2007] NSWDC 118
HEARING DATE(S):	07/05/2007 - 11/05/2007
EX TEMPORE JUDGMENT DATE:	11 May 2007
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Verdict for plaintiff in the sum of $252,536 (amended to $260,372.20 pursuant to the slip rule).
CATCHWORDS:	Motor accident - negligence - damages - credit
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
PARTIES:	Mahmoud Tamerji (Plaintiff) Kristy Leigh Gavin (Defendant)
FILE NUMBER(S):	2431 of 2006
COUNSEL:	Mr M. Cranitch SC, Mr J. Jobson (Plaintiff) Mr A. Black (Defendant)
SOLICITORS:	Milicevic Solicitors (Plaintiff) TL Lawyers (Defendant)

JUDGMENT

1 HIS HONOUR: In this case the plaintiff was injured in a motor accident on 27 October 2000. He was driving a taxi in Stacey Street, Bankstown, and the defendant’s car drove into the rear of his vehicle. He was taken to Bankstown Hospital and he claims, as a result of that collision, to have suffered some serious injuries.

2 In a case such as this the plaintiff must satisfy the court, on the balance of probabilities, of all the elements necessary to support his case. I have very serious difficulties accepting any of the witnesses who have given evidence here, other than the experts, as being reliable witnesses. There may be various reasons for that.

3 The defendant has admitted a breach of a duty of care, but questions that all the injuries from which the plaintiff claims to suffer were caused by that breach of duty, and also raises the issue of contributory negligence.

4 Let me deal with contributory negligence first because it is a fairly simple issue. In this case the plaintiff says that he was, as most taxi drivers do, not wearing a full lap-sash seat belt. He was wearing the lap part of the seat belt with the sash part not fitted. That is a matter which, by statute, I must take account of.

5 Section 138(2)(c) of the Motor Accidents Compensation Act requires that a finding of contributory negligence must be made, and I quote, “where the injured person was, at the time of the motor accident, not wearing a seat belt when required by law to do so,” and, having made that finding, I must reduce the damages recoverable by such percentage as the court thinks just and equitable in all the circumstances”.

6 In this case there is no evidence that the wearing of the seat belt made a significant contribution to the plaintiff’s injury but I will find that he did suffer certain injuries as a result of the accident and I find that I cannot disregard that statutory provision, notwithstanding the practice of taxi drivers. There must be a finding of contributory negligence and I would assess that at five per cent in this case.

7 I find on the balance of probabilities that as a result of the accident the plaintiff did suffer some injuries to his cervical spine, to his left shoulder and to his left knee. I make these findings even though the plaintiff did not complain about all injuries immediately. In fact, he did not complain about pain in his knees until three or four months after the accident when he was being interviewed by Dr Sekel, to whom he was sent by an insurance company.

8 When he was taken to Bankstown Hospital his main concerns were with his neck, shoulder and back pain and particularly the neck pain which he said was referred to the shoulders. He did complain at the time of loss of sensation in various limbs, but he was checked on arrival in the hospital and his sensations seemed to have returned by the time he was examined. He saw his general practitioner almost immediately and he has remained under the care of a general practitioner, although not the same one, since that time.

9 Early in the piece he was referred to Dr Grahame Mahony, an orthopaedic surgeon, who has continued to treat him since that date. Dr Mahony gave evidence in this case by telephone link. I was not able to observe him but I did listen to his answers and he struck me as a doctor who is extremely sympathetic to his patients and prepared to accept the version of events that they tell him because, in his view, a treating doctor has no alternative.

10 I generally make a practice of putting a great deal of weight on the evidence of a treating specialist because it is my experience that treating specialists have a much greater opportunity to observe a person over a long period of time than do specialists to whom a person is referred for medico-legal opinion. Dr Mahony is certainly of the view that the plaintiff suffered the injuries that I have mentioned as a result of the motor accident.

11 The plaintiff also claims to have suffered injury to his lower back and I find, on the balance of probabilities, that this injury also resulted from the accident. I am not satisfied, on the balance of probabilities, that this condition was there before the accident. The spinal conditions in my view may well be little more than exacerbation of the pre-existing condition but I am satisfied that the impact caused by the accident was a significant causal factor in the symptoms which the plaintiff now suffers.

12 There was some doubt about the pathology in his shoulder and knee, however, I am satisfied, because of the presence of radiological evidence, that there is organic damage to his left shoulder, and particularly to the supraspinatus tendon, and he has a rotator cuff injury of some sort which is, in my view, more probably than not, the result of the accident and he also has damage to his left medial meniscus, and possibly the condyle, although this was not immediately apparent. In my view there is no other explanation for the cause and I find more probably than not the knee injury also resulted from the accident.

13 He was referred by his general practitioner to Dr Sam Sorrenti, a specialist orthopaedic surgeon, who specialises in knees. Dr Sorrenti is prepared to perform an arthroscopy on his left knee at least, but will not do so, without assurance of payment, and the relevant insurers have refused to assume that responsibility. I should say that it is clear that this was an injury that occurred at work and the workers’ compensation insurer has met some of the expenses.

14 I find also on the balance of probabilities that as a result of his physical injuries either he has developed a psychological condition, or a susceptibility to do so has been exacerbated by the injuries.

15 There is some dispute as to how best to describe this condition. It is a depressive disorder of some sort. I am not certain whether despite the evidence of Dr Ali, the treating psychiatrist, who gave evidence here and was cross-examined, it can properly be described as chronic depression, or whether, in the view of some other psychiatrists who have seen the plaintiff, such as Dr Rowe, it is best described as an adjustment disorder with depressive mood.

16 Dr Haik, who gave evidence and was cross-examined, produced a most comprehensive report which is very thorough and assisted me greatly in assessing the reliability of the plaintiff’s evidence. He, however, was not prepared to describe the plaintiff’s condition as chronic depression or even as an adjustment disorder. He thought it was some kind of pain related disorder but it was very serious and he acknowledged, in cross-examination, that the motor accident may well have been a significant causal factor in bringing the condition to the state that seems to have persisted since the accident. I think he described it as a significant event that may have triggered the condition. On this basis I find on the balance of probabilities that the plaintiff’s psychological condition does flow from the motor vehicle accident, in that the accident was a significant causal factor in its development.

17 There is evidence before me that in this case the assessor appointed under the Act was not prepared to find the whole person impairment of the plaintiff as being greater than ten per cent. In my view that is unfortunate because it seems to me that the major damage the plaintiff has suffered in this case is non-economic loss for which he cannot recover compensation. This is an increasingly common situation.

18 I am not satisfied on the balance of probabilities that the plaintiff’s physical condition would render him permanently unfit for work, even for work as a taxi driver. His psychiatric or psychological condition however described, in my view, would currently render him unfit from working and I accept the preponderance of psychiatric opinion, including that of Dr Haik, that this condition is unlikely to resolve. He is therefore incapacitated for any type of work at present.

19 The plaintiff’s difficulty is in establishing his loss of past earnings and his loss of future earning capacity. As I have said, he bears the burden of proof of satisfying me on the balance of probabilities of each element in his claim.

20 I cannot accept the plaintiff as a reliable witness. This may be due to his psychiatric condition, or it may be due to some other factor. What he said in court and what he has told others about his work history is so internally inconsistent that it is impossible to find, even on the balance of probabilities, where the truth lies. This is something upon which Dr Haik commented in his report and, with respect, I reach a similar conclusion to Dr Haik in respect of the inconsistencies in the plaintiff’s evidence. I have no doubt the plaintiff is an intelligent man, but it is very difficult to understand what his true history is. He has given so many different versions to different doctors and others. Normally I am very cautious about accepting what a patient says to a doctor in terms of history, because many medical practitioners are interested only in those aspects of the history that relates directly to the plaintiff’s symptoms and they do not always record the histories accurately, but the discrepancies in the histories in this case are as marked as I have seen in any case and makes it very difficult for me to ascertain, as I said, what the true history is.

21 He has told some of the doctors and he told this court that he grew up in Lebanon and he attended university there, obtaining a law degree. That was not the account that he gave to some of the doctors. When he came to Australia he says that he enrolled in a law course at Sydney University but gave up because of economic pressure and language difficulties, and that does seem to be consistent.

22 However, what he did then does not seem to be consistent because he said here in evidence that he immediately obtained a taxi driver’s licence and his initial evidence in this court is that he has driven a taxi continuously since he finished his law course, or left the law course, in about 1990. It emerged that in fact there have been significant periods since then when he has not driven a taxi.

23 He also told some doctors that early in his stay in Australia he bought a business of some sort at Lakemba. It is described variously as a fruit store, or as a takeaway store, and he said in his evidence here when he was cross-examined about this that he helped a friend who ran a shop near where he was living.

24 He also gave evidence that because of his hard work he has been able to buy his own house and mortgage that to purchase properties for his sons. Although he was not challenged on that, there is no documentary evidence that he owns any property and because of the doubts I have generally about his reliability I am not prepared to accept that as necessarily the case, and also I am not prepared to accept it as evidence that he did work, as he said in evidence, six or seven days a week from 1990 until the time of the accident.

25 It is clear, after his cross-examination, although this is not what he said in his evidence in chief, that he has spent considerable periods of time in Lebanon. His father appears to be wealthy and owns a car yard and it does seem to be conceded that in the periods that he was in Lebanon he did not work. He says that during those periods his wife and his eight children remained in Australia, but there is evidence that his wife, at least, has been to Lebanon on a number of occasions, and one of the sons who gave evidence also said that he had been to Lebanon. Again this causes me to have doubts about the reliability of the plaintiff in general terms.

26 I should emphasise that I do not regard the reports of Dr Sekel as being entitled to a great deal of weight particularly as regards the history contained in them. In my view this doctor gave evidence and the cross-examination caused me to doubt the reliability of a number of the rather strong assertions he made in those reports.

27 As I say the plaintiff is claiming primarily economic loss and the cost of services which have been provided to him gratuitously. It appears that the only tax return, that the plaintiff has been able to satisfy me that he has filed before the accident, was the return for the year ended 30 June 2000 and even that return was filed some three years after the end of the tax year, after these proceedings had commenced.

28 The solicitor who represented him advised the defendant’s solicitors that he did not file any tax returns for the years 1996 to 1999 inclusive. This may be because he did not earn sufficient income in any year, either because he was not working or he was not in the country, or it may be that he made a conscious choice to avoid paying income tax. Even the income tax return that he did file for the 2000 tax year significantly understated his income. The tax return for the following year, when he says he was driving a taxi for between three and four months does not disclose any income from taxi driving. Those returns cannot therefore be an accurate guide as to what his pre-accident income was.

29 His evidence was that he earned about $600 per week nett before the accident. If this is an average figure for even the five years before the accident I cannot accept it. More probably than not I find during this time the plaintiff spent a significant proportion of his time either in Lebanon, or in Australia earning nothing.

30 In my view in this case the plaintiff has failed to prove any particular figure as his pre-accident income. I am not prepared to accept his estimate, however it is clear that since the accident he has not worked and he is entitled to some compensation. I must make a finding, as best I can, on the evidence before me and I find more probably than not over the five years before the accident the plaintiff’s maximum weekly earnings did not exceed $150 per week on average. I will therefore base my assessment of past loss of earnings on that figure. The defendant fairly allows a figure of $250 per week as a basis for the calculation of loss of future earning capacity but suggests that I discount both figures by a higher than usual figure for vicissitudes on the basis that the plaintiff would not work and I propose to do that.

31 Mr Mikhail, who manages a taxi workshop gave evidence that he was prepared, at the end of 2001, to offer the plaintiff a job as a manager at a gross salary of about $900 per week. I do not accept Mr Mikhail as a reliable witness, either. He gave evidence, which was simply incredible, as to his understanding of the effect of a subpoena, particularly after he had spoken both to his own solicitor and to the defendant’s solicitor. It is my belief that he may well have fabricated part of his evidence and therefore I cannot accept any of his evidence as reliable and I therefore do not accept that the plaintiff would have found a position as a manager at any time.

32 The plaintiff says that since the accident he has not been able to look after himself at all. He says that he spends most of his time lying in bed watching television. Three of his sons gave evidence and they confirmed this version of events. I must say that I found the sons no more reliable as witnesses than the father. So far as I know, none of them suffers from any psychiatric disorder. All of them show great deference to their father and there was a remarkable similarity between the accounts that they gave. If I were to accept the literal truth of everything each of them said I would find that many of the tasks performed in the plaintiff’s flat occurred at least twice each day, performed by different sons and several days’ housework was done each day in that flat. I cannot accept that.

33 I do accept that for cultural reasons these boys, who range in age from sixteen to twenty-three, have a great deal of respect for their father and I would expect them to assist whenever he asks them to do so. However I find on the balance of probabilities in this case that doing his bidding may involve giving evidence in court which greatly exaggerates the work which they undoubtedly do.

34 The plaintiff was not admitted to Bankstown Hospital after the accident, although he did spend the night there. When he was released his wife, a friend and his eldest son took him home. There is no doubt that at that time he did require assistance in dressing, showering and his wife continued to provide the domestic services that she had provided up until that time by way of cooking, washing and cleaning.

35 The defendant conceded that the plaintiff did need care until the time he moved out of the matrimonial home, and it puts this at a period of about eight months after the accident.

36 All the evidence, and this was not challenged, is that after the accident there was a significant change in the plaintiff’s mood. All three sons said, and I accept, that from that time onwards relations became strained. Between six and twelve months after the accident he moved into his own accommodation and he has since moved again. He now occupies a two bedroom flat by himself. At least one of his sons visits him each morning and his youngest son, Atef, visits each afternoon after school. Atef says that he does his homework at his father’s flat and he also assists in cooking, housework, washing and ironing. Sometimes he will wash his father’s back.

37 The other two sons who gave evidence said that they performed similar tasks. One son, Iesa, says that he visits his father each morning and performs the same tasks that his brother Atef performs in the afternoon. The third brother no longer does as much work for his father but he said that he did so in his past. As I say, if I were to accept the brothers’ versions of what they did I would have to find that they performed various types of domestic assistance for their father for between four and five hours each day, and that to me is absurd.

38 When the plaintiff chose to move out of the matrimonial home he left behind the tasks of gardening and lawn mowing which he used to perform. The sons said they used to assist him on occasions. He said that he used to assist his wife in housework, but none of the sons when cross-examined admitted to observing this. The plaintiff and his wife are now divorced. She was not called to give evidence, and indeed this is hardly surprising, as the evidence is that she has not spoken to him for some years. However the sons said they still bring their father food that she cooks and I accept that.

39 It does not follow that the plaintiff is incapable of preparing simple meals and doing basic tasks for himself. I have some doubts that he lives quite as solitary an existence as he said he did. He did go to hospital last year when, apparently he was assaulted by one of his sons, a son who did not give evidence, and on that occasion he gave the name of a woman called Jasmin as his partner. When he was cross-examined about this he denied that he had a relationship with the woman and only answered the question when he was directed to do so. Nevertheless, that goes more to his credit than anything else and reinforced the view that I took that he was not a reliable witness.

40 Dr Mahony, the treating orthopaedic surgeon, upon whose opinion I put a great deal of weight, said that he would be capable of doing simple household tasks, such as putting dirty clothes in the washing machine, washing dishes and preparing simple meals, even though he does have difficulty standing or sitting for long periods. It is probably necessary even now that he does have some assistance in such matters as cleaning bathrooms and toilets but I would not assess this assistance as requiring more than thirty to forty minutes each day and therefore that does not cross the threshold established by s 128 of the Motor Accidents Compensation Act, and indeed, I would find that he has not required gratuitous domestic assistance for more than a total of thirty or forty minutes each day since the time he moved into his flat.

41 I therefore assess his damages as follows:

42 I am prepared to allow past economic loss for 340 weeks at $150 a week discounted by thirty percent because of the chance that he would not have worked during that period. That produces a sum of $35,700.

43 The defendant is prepared to concede that the calculation of his loss of future earning capacity should be based on the sum of $250 per week and again I will allow that for fourteen years but discounted by thirty per cent rather than fifteen per cent and that produces a figure of $92,628.

44 The past medical expenses are agreed mathematically at $54,271. In view of the findings that I have made about the plaintiff’s condition I must allow that amount.

45 The plaintiff will require medication. He has been on medication since this accident. His accounts of the medication he has required are varied but I have no doubt that he does spend, or is required to spend, a considerable amount on medication for pain relief and to deal with his psychiatric problems.

46 The defendant is prepared to allow a sum of $4,500 or $86.50 per week to cover medication, general practitioner and specialist visits as required and possible psychological assistance as recommended by the general practitioner, Dr Nemeth. That amounts to $57,644.

47 I do also propose to allow the sum of $15,000 to cover knee and shoulder surgery which in my view are consequences of the accident.

48 The defendant, as I have said, is prepared to allow domestic assistance for twelve hours per week for eight months at $18 per hour, which represents a sum of $10,584.

49 As I calculate it the total sum of the damages to which I consider the plaintiff is entitled is $265,827 and that has to be discounted by five per cent. That produces a figure of $252,536.

50 There will be a verdict for the plaintiff in the sum of $252,536 (amended to $260,372.20 pursuant to the slip rule).

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