Tong v Chiu

[2020] NSWDC 760

District Court

New South Wales

Medium Neutral Citation:

Tong v Chiu [2020] NSWDC 760

Hearing dates:

8, 9, 10, 11 December 2020

Date of orders:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the defendant.

(2)   Order the plaintiff to pay the defendant’s costs.

Catchwords:

DAMAGES – breach of duty of care admitted by defendant – credibility of plaintiff and his witnesses –witnesses not accepted unless corroborated by other evidence

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), s 83

Cases Cited:

White v Benjamin [2015] NSWCA 75; (2015) 70 MVR 188

Category:

Principal judgment

Parties:

Zhuo Tong (Plaintiff)
Lik Teck Chiu (Defendant)

Representation:

Counsel:
B Tzatzagos (Plaintiff)
J Guihot (Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2019/399240

Judgment

Introduction

1. The plaintiff was the driver of a car involved in a collision on 2 March 2016 on Lane Cove Road at Macquarie Park. By a Statement of Claim filed on 19 December 2019 he alleged that a vehicle driven by the defendant came from his left and collided with the passenger side of his car. The plaintiff sought damages for injuries said to have been suffered in the accident. The proceedings are governed by the Motor Accidents Compensation Act 1999 (NSW) (“the Act”).

2. Breach of duty of care was admitted by the defendant. A Defence filed on 22 January 2020 pleaded as follows:

“1   The defendant denies that he was travelling at an excessive speed at the time of the accident.

2   The defendant denies that the plaintiff suffered any injury, loss or damage as a consequence of the accident the subject of this claim.”

3. In final submissions, counsel for the defendant put the defence as follows:

1. While breach of duty of care was admitted, the accident did not cause any injury to the plaintiff.

2. In the alternative, there was no injury sustained to the neck and there was no underlying pathology to explain the alleged persistent symptoms in the right wrist or right shoulder.

3. If either submission was accepted, there would be no award of damages at all (T179/40-50).

Evidence of the Plaintiff

Summary of Evidence-in-Chief

4. The plaintiff said that he was born in 1992 in China and he is now 28 years old. He finished high school in 2009 and attended a vocational and technical college in China. He obtained a Diploma in Automobile Manufacture and Assembly. He did not undertake any paid work in China.

5. In October 2013 the plaintiff came to Australia on a student visa, which was due to expire in October 2018. This allowed him to study in Australia and to undertake up to 20 hours per week of paid work. Shortly after his arrival in Australia the plaintiff did some part-time work as a packer in a supermarket.

6. In January 2014 the plaintiff moved to Newcastle where he was offered admission to a Bachelor of Engineering Mechatronics degree program at the University of Newcastle. This offer was conditional upon the plaintiff meeting the English requirements set by the university. The plaintiff successfully completed a university Beginners English course and an Intermediate English course. He struggled with the next English course and in July 2014 he was granted a leave of absence from the English program. He was therefore not accepted as a student in the degree course.

7. In August 2014 the plaintiff made application to the Wentworth Institute in Sydney and was offered placement in two courses. One was an Advanced Diploma in Information Technology Business Analysis and the other was a Bachelor of Interactive Media. He moved to Sydney in November 2014. He then sought part-time work as a gyprocker.

8. The plaintiff said that he started work for a company called “Kevin Bricklayers” in July or August 2015. He found that work through an online search. He worked for them for about eight months at various sites. The plaintiff is right-handed. There was lifting involved in that job, as well as carrying and affixing gyprock to frames with a nail gun. He worked about 20 hours per week for Kevin Bricklayers spread over two days each week.

9. In February 2016 the plaintiff enrolled in a Diploma of Leadership and Management Course at the Wentworth Institute. He undertook this course because he wanted to continue to develop a career in construction to become a building manager or obtain a builder’s licence.

10. At the time of the accident the plaintiff was living at an address in Auburn in a six-bedroom house. He shared a bedroom with a long term friend Mr Chen. They shared the housework. The plaintiff and Mr Chen were responsible for keeping their own room clean and tidy. Prior to the accident the plaintiff’s health was good. He played soccer and went jogging.

11. The plaintiff gave evidence about the accident itself. Another friend Mr Huang was in the car with him. He has not seen or spoken to Mr Huang for about two years. The plaintiff was driving on Lane Cove Road at Macquarie Park and was on his way home. He was thus driving south. He was stopped at the traffic lights near the train station at Macquarie Park. The light turned green and he started accelerating and drove straight ahead. The other car hit him on his left. The right wheel of the other car hit the left front wheel of the plaintiff’s car. The plaintiff was going at between 40kph and 60kph at the time. The plaintiff’s car was lifted but not turned over. It almost turned over. The plaintiff’s car was forced into the adjacent lane on his right-hand side. The left side of the vehicle went up in the air and then came down and hit the ground. The plaintiff’s body hit the right door. His hand was still on the steering wheel when the car landed.

12. The car was written off and towed away. The plaintiff felt some dizziness at the scene of the accident. He caught a train home. He then felt pain in the right wrist, the right shoulder and the neck and went to see his GP Dr Wan at Auburn. He told Dr Wan about these pains.

13. He continued to go back to Dr Wan who sent him for an x-ray, an ultrasound and physiotherapy. He had about 20 sessions of physiotherapy to the right wrist and right shoulder, paid for by the insurance company. The doctor applied for more sessions for physiotherapy but this was not approved by the insurance company. The only medication taken by the plaintiff since the accident was Panadol, recommended by Dr Wan. The plaintiff last took a Panadol in October 2020. That was on days when he went back to do some work but felt “extreme pain”.

14. The plaintiff said that he had not been able to work since the accident because of emotional problems as well as physical problems. He said “I was under a lot of pressure and I was kind of depressed. And I am very unhappy” (T20/20).

15. Dr Wan suggested that he see a psychologist but the insurance company would not pay for it.

16. The plaintiff said that he was away from work for three months after the accident and he searched online for another job. He found one but not with Kevin Bricklayers. The plaintiff could not recall the name of the company but said that it was gyprocking work. He only did part of one day. He could not bear the pain and did not do it anymore. He was paid around $100 for that time at work.

17. Three months later he tried to go back to work, again finding gyprocking work through an online advertisement. He could not remember the name of the company. He only worked one day and was paid around $100. He felt pain and could not continue.

18. The plaintiff next attempted to return to gyprocking work six months later. He felt pain and could not do the job.

19. The plaintiff’s next attempt at return to work was in March 2020. He could not remember the name of the employer. He did three half days of five hours each. He could not remember where the job was but it was near the sea and it was a very big house. He felt pain in his right wrist and right shoulder. He did not go back to work.

20. In October 2020 the plaintiff attempted to work doing gyprocking for a man called Sam. This was at a townhouse in Ashfield. He did two days of eight hours each and was paid over $700. He could not bear the pain and he did not continue.

21. The plaintiff had looked for other jobs such as a waiter or a cleaner. He did not obtain interviews for such work.

22. The plaintiff returned to his studies in leadership and management after the accident. He took some time off before his return. He could not remember how long he was able to continue in the course but he did not complete it. He said that he was in a lot of pain and had flashbacks about the scene of the accident and could not concentrate on his study. He did not have a job and was under a lot of pressure.

23. He made one other attempt to return to the leadership and management course but did not complete it. The plaintiff enrolled in other courses in 2017 at the Wentworth Institute. He did not go to the school a lot and said “I rarely went there”. He could not recall how long these courses were scheduled to take. He did not complete any of those further courses. The plaintiff tried to return to study at TAFE in 2018.

24. The plaintiff remained living at Auburn with Mr Chen until the end of 2017. He and Mr Chen then moved to their current address in Granville. The plaintiff’s wife Ms Yue came to Australia on a student visa in January 2018. The plaintiff and Ms Yue had known each other for a long time in China. They started living together in Australia in January 2018. They married in March 2018. They now have a child who was born in October 2020.

25. The plaintiff said that he has needed assistance with domestic chores since the accident. He could not do vacuuming, mopping and cooking because of pain in the right wrist and he could not lift things. He could not use a vacuum cleaner because he felt pain in his right wrist. He could not do sweeping. He could not do a hand wash in the laundry. He could not carry bags of shopping. He could not clean the bathroom as it caused pain in his right hand and wrist.

26. Mr Chen provided assistance with these tasks until Ms Yue came to Australia and the couple married. She has provided all of the domestic assistance since then.

27. The plaintiff said that he now has pain in the right wrist constantly (T32/33). He also feels “kind of dizzy”. He pointed to the outer part of his right wrist saying that was where the pain was.

28. The plaintiff gave evidence that he was no longer planning to return to China permanently. His plan was to go to TAFE and “get builder lessons, and continue to work and live with my family” (T33/29). The plaintiff’s wife had taken a break from her leadership studies after having the baby. The plaintiff did not know when she was planning on returning to her studies.

Summary of Cross-examination

29. In cross-examination it was suggested to the plaintiff that he made no mention to Dr Wan on 2 March 2016 of having any neck problems at all. The plaintiff disagreed and said that he told Dr Wan about neck and shoulder pain and dizziness.

30. The plaintiff told counsel for the defendant that he passed his beginners course in English at the University of Newcastle and his intermediate course but that he did not finish his upper intermediate course in English. He withdrew from the degree course at the University of Newcastle. He did not sit for one subject in that degree. While living in Newcastle he worked at the New Shanghai restaurant in Charlestown. He worked there from January to October 2014 doing about 20 hours a week. He also worked as a casual taxi driver.

31. When the plaintiff came to Sydney and enrolled at the Wentworth Institute, his first course was a Certificate IV in Business. That course was to commence in November 2014 and run until May 2015. The plaintiff failed that course. The plaintiff then re-enrolled in that course in May 2015 but again failed the course. In August 2015 he enrolled in a Diploma of Management at the Wentworth Institute. That course was to conclude on 19 February 2016. The plaintiff failed every subject he attempted in that course.

32. After the accident the plaintiff enrolled in the Diploma of Leadership and Management at the Wentworth Institute. At that point he had failed every subject he had ever attempted.

33. The plaintiff was asked when he started work with Kevin Bricklayers. He said that he did not remember. The plaintiff said that Mr Chen did gyprock work but he never worked for Kevin Bricklayers. The plaintiff was asked about acquiring a White Card. He said that he had a White Card but he could not remember whether he got it before or after 2 March 2016. No White Card was tendered in evidence.

34. The plaintiff said that he was paid in cash for the work done for Kevin Bricklayers and that he put that cash into his Commonwealth Bank account. He also put his taxi earnings into that account.

35. The plaintiff was asked about the tax return for the year ended 30 June 2016 which stated that he had earned money from bricklaying services. The plaintiff said that the information he gave to the accountant to prepare that return was his payslips. When asked where those payslips were, the plaintiff said that they should be with his solicitor. A call was made for those payslips but they were not produced by the solicitor, who did not have them and had never been given them.

36. The plaintiff was asked about looking for work from time to time as a gyprocker. He was asked why he did not look for something less physical. He said it was not easy to find a less physical job and he did not know what job he could do. The plaintiff did not put his name down with any agency looking for work.

37. In cross-examination the plaintiff said that he travelled to China between 12 July 2016 and 28 August 2016. When he returned he re-enrolled in the Diploma of Leadership and Management to commence in October 2016 to run until May 2017. Again he failed that course. He then enrolled in a different course at the Wentworth Institute being a Certificate in Accounting. That course was to commence in July 2017 and run until June 2018. The plaintiff failed that course.

38. The plaintiff was married on 2 March 2018 and obtained a spouse visa, so that he could stay in Australia as a dependent of his wife while she was studying. That visa is due to expire in August 2021.

39. The plaintiff was asked about cash deposits to his Commonwealth Bank account after the accident. He denied that those cash deposits came from money derived from working as a gyprocker. The plaintiff was asked about a large number of entries in 2016 in the statements of his Commonwealth Bank account (DX 2). Those deposits were:

1. 25 January 2016 for $1,300 cash.

2. 9 February 2016 for $2,900 cash.

3. 24 February 2016 for $3,000 cash.

4. 7 March 2016 for $2,500 cash.

5. 22 March 2016 for $2,700 cash.

6. 4 April 2016 for $2,150 cash.

7. 19 April 2016 for $3,200 cash.

8. 12 May 2016 for $750 cash.

9. 20 May 2016 for $3,450 cash.

10. 19 September 2016 for $3,800 cash.

11. 11 October 2016 for $1,400 cash.

40. The plaintiff was asked about each of those deposits individually. He was asked where the money came from. His answers were always “I don’t remember” or “I don’t know”.

41. The attention of the plaintiff was drawn to deposits to the bank account on 26 August 2016, 27 October 2016 and 9 December 2016. These were all back wages from the New Shanghai restaurant, which had been taken to court for underpaying workers.

42. The plaintiff was asked in cross-examination about Mr Longhai Li. He said that he was a friend. Mr Li did gyprocking work.

43. The plaintiff was then asked about an application signed by himself in support of an application for a credit card with the Commonwealth Bank (DX 3). In the application the plaintiff told the Commonwealth Bank that he was employed full-time and earned $800 a week after tax. It was pointed out to the plaintiff that the document was dated 11 October 2016. He said that the bank wrote all of those things, and he had produced payslips from his pre-accident employment as a gyprocker. The plaintiff acknowledged that had never earned $800 nett per week even in that employment. The plaintiff acknowledged that he had signed the document to apply for a credit card with the Commonwealth Bank.

44. The plaintiff was cross-examined about a joint account which he opened after his marriage. The plaintiff’s wife has never worked since coming to Australia in January 2018. Numerous credits to the joint account came from Mr Chen. Sometimes Mr Chen gave Mr Tong money in cash to deposit into the account. There were also large deposits into the account from Mr Li. The plaintiff said that these were borrowings from Mr Li. Some of them are quite large. There was a deposit from Mr Li of $9,530 on 27 July 2018. There was another deposit from Mr Li on 14 August 2018 of $10,000 (DX 5). The plaintiff said that he had never done any work for Mr Li who was a gyprocker. He had never asked him for work.

45. The plaintiff was cross-examined about a letter dated 27 August 2018 which he wrote to the Department of Home Affairs (DX 7 p 220). The letter was to the case officer who was considering the plaintiff’s application to stay in Australia. In the letter he said:

“I want to take care of my wife during her study time in Australia in order to make sure that she can fully focus on her study and then we can go back to China together when she completes her course.”

46. The plaintiff said that this was not written by him, but by an agency. He acknowledged that he signed it. The plaintiff was cross-examined about statements he made to Dr Sekel on 8 March 2019 (DX 7, p 81), to the same effect i.e. that he intended to return to China with his wife at the end of their visas.

47. The plaintiff was cross-examined about his claim for care. He said that at the time of his accident he was living with Mr Chen and sharing a bedroom with him. They had to clean up that room and the kitchen when they used it. The landlord cleaned the common areas.

48. The plaintiff was cross-examined about whether he could do domestic tasks. He was asked whether he would be capable of dusting furniture in the house. He said that he could not, as he could not dry out a wet cloth, because his wrist would hurt.

49. The plaintiff was cross-examined about coming to Australia with Mr Chen in October 2013. He was asked what course of study Mr Chen enrolled in after he arrived in Australia and he said that he did not know. Both men had enrolled at the University of Newcastle at the same time. Both also enrolled later at the Wentworth Institute in Sydney. The plaintiff said that he did not know whether Mr Chen was studying at the moment. He did not know how long it was since he had been studying. The plaintiff acknowledged that he had lived with Mr Chen ever since coming to Australia, but that he did not know what institution he had attended or what course of study Mr Chen had undertaken. The plaintiff said that he did not know whether Mr Chen was currently working as a gyprocker. The plaintiff said that he had never asked Mr Chen whether he knew of any work that he (the plaintiff) could do.

50. The plaintiff was cross-examined about an attendance with Dr Wan in October 2020. It was put to the plaintiff that the notes of Dr Wan showed that he went there for treatment for reflux, and that he had not said anything to Dr Wan about his wrist and shoulder.

51. The plaintiff was cross-examined about his assertion that he could not afford to pay for physiotherapy even though it helped him. He acknowledged that it was a condition of his visa that he take out private health insurance in Australia, as he was not entitled to Medicare. The plaintiff was also cross-examined about purchases made on a credit card, before the plaintiff and his wife flew back to China. The plaintiff acknowledged that about $1,200 was spent on a credit card. The plaintiff also agreed that he had paid for some medical expenses for his wife on a credit card.

46. In re-examination the plaintiff said that some of the money borrowed from Mr Chen was repaid to him in China. The plaintiff’s family repays the money to Mr Chen’s family. Mr Tong said that he thought he owed Mr Chen about $20,000. The same arrangement operated in relation to Mr Li. The plaintiff’s wife’s mother repays money to Mr Li in China.

Evidence of Mr Chen

53. Mr Chen was born in 1991 in China. He met Mr Tong in that country about one or two years before they came to Australia. Their mothers are friends. They both came to Australia to study. Mr Chen enrolled in English study at the University of Newcastle but did not finish the course. About one and half years after moving to Newcastle he moved to Sydney to study “Economy” (T98/16). He did not finish that course. He has since enrolled in several courses but has not finished one subject in any of them. He is still on a student visa which is set to expire in 2021. His initial five year visa has been extended by two years.

54. Mr Chen was asked whether he is currently undertaking a course of study. He said that he was and that it was “something about economy”. He said that the course was taking place at “HIA” but he did not know the full name of the institution (T98/50). He goes twice every week and does assignments every few weeks. The assignments are written in English. He has not sat for an exam.

55. Mr Chen said that he had lent money to Mr Tong and that some of the money has been repaid by Mr Tong’s mother paying his mother back. He is still owed a little less than $20,000. He said that Mr Tong has asked for money for tuition fees, rent and living expenses.

56. In cross-examination Mr Chen said that when the motor vehicle accident happened, he was away in China.

57. Mr Chen said that Mr Tong had worked as a gyprocker from 2014 onwards, and that he was doing gyprock work when they moved to Auburn.

58. Mr Chen said that he had failed every course that he had enrolled in since being on a student visa in Australia. Mr Chen said that he could not remember the name of the course he was presently enrolled in. He did not know how many semesters there were per year at HIA. He got out his mobile phone and offered to look it up. He was enrolled in four subjects but he could not tell the court the name of any of the subjects. Prior to being enrolled at HIA he had been enrolled at the Wentworth Institute, but he could not tell the court the name of the course he was studying there. He said that it was a “diploma of something”. He did not pass any subjects in that course. These answers (T112/10-113/15) sounded as though they had been written by Samuel Beckett.

Evidence of Ms Yue

59. The plaintiff’s wife Ms Su Qiao Yue gave evidence. She was born in 1992 in China. She first met her husband in 2007 when they were in high school. Ms Yue completed high school in China and then obtained a three-year qualification in Chinese language and literature. She finished her course in 2015 and worked as a primary school teacher.

60. Ms Yue came to Australia on 27 January 2018 on a visitor’s visa. In July or August 2018 she was issued with a student visa. This expires in August 2021. Ms Yue is enrolled in a course of leadership and management at the Wentworth Institute. This is a two-year course. She has not passed any subjects in the course.

61. Ms Yue gave evidence that when her visa expires she will try to find a job or continue studying. She wants to stay in Australia.

62. Ms Yue was asked whether she had observed her husband having any problems. She said that his hand shakes and he complained of pain in his neck and his shoulder.

63. Ms Yue was asked whether her husband had tried to go back to work. She said that he had tried once, in October 2020. He came home in a lot of pain and they went to see a doctor.

64. Ms Yue has not done any work since she has been in Australia. She had some savings from China and she and her husband had borrowed money from Mr Chen and Mr Li. The money borrowed from Mr Chen is repaid in China by Mr Tong’s mother paying the money to Mr Chen’s mother. The money borrowed from Mr Li is repaid by Ms Yue transferring money to her mother, who transfers money to Mr Li in a Chinese bank account.

65. Ms Yue gave evidence that she does most of the housework. She said that her husband can make the bed and put dirty clothes in the laundry basket. He can fold the clothes. She does the rest of the housework. Ms Yue said that she spends one and a half hours a week doing vacuuming and mopping. She cooks three meals a day which takes four hours a day. She washes dishes which takes about an hour a day.

66. In cross-examination Ms Yue saidd that her husband had not sought work between January 2018 when she came to Australia and the one day of work in October 2020.

67. Ms Yue said that she enrolled in a course at the Wentworth Institute so that she could be granted a visa to stay in Australia as her visitor’s permit had expired. She failed her subjects in that course and re-enrolled in the course in the middle of last year. Ms Yue did not remember the last time she attended a class in the Diploma of Leadership and Management course at the Wentworth Institute. She last paid a tuition fee for the course in October 2020.

68. Ms Yue was cross-examined about the housework. She had given evidence-in-chief that her husband could not hold a wok. When she was asked whether her husband was right or left-hand dominant, she said that she did not know. She said that she did not know whether her husband was capable of doing the housework. She was asked whether her husband could put dirty clothes into the washing machine and press a button to wash the clothes. She said that she only asked him to put the dirty clothes in the laundry basket and she did the rest.

69. Ms Yue said that she and her husband owed over $20,000 to Mr Chen. They owed money to Mr Li. She did not know where Mr Li lived, or whether he lived in China or Australia. She had only met him once, soon after she arrived in Australia.

70. Ms Yue confirmed that the credit card was used to pay for some of her medical appointments and tests. It was also used to buy presents to take back to China. The cost of those presents totalled over $1,000.

Medical Evidence

71. Mr Tong was sent by his solicitors to Dr Conrad, a general surgeon, for medico-legal purposes. On physical examination Dr Conrad found restriction of movement in the neck, right shoulder and right wrist. He thought that the plaintiff needed conservative treatment. Dr Conrad offered the view that this would cost $2,000 per year for medication, medical supervision and physiotherapy.

72. On the question of economic loss, Dr Conrad said:

“He is not fit to do heavy work as a builder’s labourer. He may be able to do 12 to 15 hours per week of light work in a position where he is able to stand or sit at will, not lift anything more than 5kg in weight, not do repetitive work with his right arm or overhead work with his right arm. He may be able to do light cleaning work or similar depot work within the above parameters. This should all be part of a structured rehabilitation program.”

73. On the question of care Dr Conrad said:

“Should his housemates not be able to help with the heavier part of housework and home maintenance he might need six hours per week of Home Care assistance.”

74. For medico-legal purposes the plaintiff’s solicitors sent him to Dr Alexander Woo, an orthopaedic surgeon. He saw the plaintiff on 2 February 2017. Dr Woo found no tenderness in the neck and neck movements were normal. There was tenderness in the right shoulder and a normal range of movement, with pain near the end of the range. There was tenderness over the right wrist but range of movement was normal. There was a slight weakness of the right-hand grip.

75. Dr Woo diagnosed strain injuries to the neck, right shoulder and right wrist. He said that there was a full recovery of the neck injury. He thought that the plaintiff continued to have pain in his right shoulder and right wrist from soft tissue injuries.

76. Dr Woo found the plaintiff unfit for pre-injury duties in gyprocking because of continuing pain in the right shoulder and right wrist. He was unfit for any physical work that required repetitive lifting and turning. He was fit for office duties and fit for study.

77. Dr Woo thought that the plaintiff had problems performing domestic chores involving quite heavy lifting and turning with his right hand. However, in his opinion the plaintiff does not require any domestic assistance now or in the future as a result of his injuries.

78. The Motor Accidents Medical Assessment Service had the plaintiff assessed by Dr Long. Dr Long noted that the plaintiff had resumed playing soccer. On examination Dr Long found restriction of movement in the right shoulder and the right wrist.

79. Dr Long concluded that the plaintiff had suffered a soft tissue musculoligamentous injury to the right shoulder and a soft tissue musculoligamentous injury to the right wrist. Dr Long found that there was no neck injury caused by the motor accident.

80. The purpose of the report by Dr Long was to consider whole person impairment, so he said nothing about economic loss or care.

81. The plaintiff tendered a right wrist MRI report by Dr Harris dated 18 October 2016. Dr Harris observed certain changes in the wrist “reflecting a low-grade contusional injury (sprain)”. A right shoulder ultrasound showed a normal appearance.

82. The defendant had the plaintiff assessed by Dr Machart, an orthopaedic surgeon. He first saw the plaintiff on 24 February 2017. On examination there was tenderness in the right wrist. There was a click when stressing the joint which was painful. In the right shoulder there was a positive impingement test. The diagnosis was soft tissue injuries which had not settled.

83. Dr Machart did not recommend any further treatment, and in particular thought that any more physiotherapy was not going to do any good. Dr Machart thought that the plaintiff would have been unable to work in the gyprock industry for the first month after the accident, but thereafter there was no injury which would have led to such disability. Dr Machart thought that the plaintiff was able to do any normal and expected home duties.

84. Dr Woo and Dr Machart held a conclave on 27 November 2020 and produced a short report (DX 8). The two doctors agreed that there were soft tissue injuries to the right wrist, right shoulder and neck in the motor vehicle accident. They agreed that the symptoms should improve and that it was unlikely that there would be any long term disability or need for treatment.

85. The defendant had the plaintiff examined by Dr Sekel, an occupational physician. The diagnosis of Dr Sekel was a soft tissue graze of the right shoulder. Any soft tissue injury should have completely resolved within six weeks. There was no impairment of earning capacity and no need for domestic assistance.

86. The only evidence concerning psychological matters came from Dr Vickery. The defendant sent the plaintiff to Dr Vickery, who is a psychiatrist and pain management consultant. He too recorded that the plaintiff had gone back to soccer and running.

87. The plaintiff reported irritability and bouts of depression to Dr Vickery. Dr Vickery recorded that psychiatrically, the plaintiff was fit for employment. He diagnosed an Adjustment Disorder which is resolving, such diagnosis being dependent upon there being an underlying medical condition.

88. The plaintiff tendered the clinical notes of the treating GP Dr Wan (PX 6).

89. The note of 2 March 2016, the day of the accident, stated that the right wrist and right shoulder were painful. There was a full range of movement. There were some abrasions on the shin. The impression was of a soft tissue injury of the right wrist and right shoulder. Dr Wan thought that the plaintiff needed analgesia and rest. He said that he was unfit for work for two weeks. He also sent him to physiotherapy.

90. The plaintiff saw Dr Wan again on 13 March 2016, 16 May 2016, 2 June 2016, 19 July 2016, 26 September 2016, 23 October 2016, 19 November 2016, 28 November 2016, 29 December 2016 and 31 December 2016. Thereafter the plaintiff was in the hands of physiotherapists who worked from the same medical centre as Dr Wan. The plaintiff did not go back to Dr Wan between early 2017 and October 2020, when he attended for a follow-up in relation to problems with reflux.

Submissions in Relation to Credit of the Witnesses

91. Counsel for the defendant submitted that the evidence of the plaintiff, his wife and Mr Chen was evidence that could not be accepted at face value (T180/5). It is noted that all three witnesses gave their evidence through a careful and conscientious Mandarin interpreter.

92. Counsel for the defendant submitted that the evidence of the plaintiff and his wife about borrowings from Mr Chen and Mr Li should not be accepted. There was no explanation why there was a need to borrow in the first place if the parents had these available funds, which they eventually provided. Mr Li, a gyprocker, was not called to give evidence. The plaintiff and his wife said that they did not know where Mr Li lived although he was a benefactor who had advanced a total of $58,000 into the accounts of the plaintiff and his wife (T180/20).

93. Counsel for the defendant submitted that the demeanour of the plaintiff and his wife and Mr Chen showed that they were evasive and vague, particularly in relation to the courses they were doing or the work that was being done. The plaintiff’s wife said that she did not know whether her husband was right-handed or left-handed, but she had been married to him since March 2018 and had known him since high school (T180/45). The wife had attempted to tailor her answers or avoid answering questions that she perceived as harmful to her husband’s case, but was quick to advance matters that she saw as being helpful to his case (T181/5).

94. Counsel for the defendant took the plaintiff through a series of cash deposits in his account between 7 March 2016 (five days after the date of the accident) and 11 October 2016. For each of these deposits the plaintiff said he didn’t remember or he didn’t know where the money came from (T181/30): see Transcript p 55 and following. On the next day of the hearing the plaintiff was asked about transfers from Mr Li, but the cash deposits between March and October 2016 remained unexplained. The plaintiff never said that these 2016 deposits were borrowings from Mr Li or Mr Chen (T181/35).

95. Counsel for the defendant submitted that the most likely future circumstances but for the accident were that the plaintiff would return to China (T181/45). At p 220 of the defendant’s folder (DX 7) there was a letter from the plaintiff’s Home Affairs file. The plaintiff said that he wanted to take care of his wife during her study time and then they could go back to China together when she completed her course. The plaintiff was cross-examined about this and said that an agent prepared the letter. But Dr Sekel asked the plaintiff about his intentions, and he got the same answer (T182/10) - see DX 7 p 82.

96. Counsel for the defendant submitted that there was uncertainty as to whether the plaintiff performed any gyprocking work prior to the accident and after the accident. There was no corroboration of the pre-accident gyprocking work. The plaintiff could have produced a White Card if he had one before the accident, but he did not (T189/10). There were no payslips presented to the court, even though the plaintiff said that he had provided the payslips to his solicitors, his accountant and the bank (T189/15).

97. ASIC deregistered the employer company on 22 February 2016 so that company would not have been operating by the time of the accident. Counsel for the defendant submitted that it would not have been operating by 22 December 2015, when notice was given by ASIC that it was going to deregister the company (T189/20).

98. Counsel for the defendant submitted that the plaintiff was completely vague and uncertain and contradictory as to when his work as a gyprocker commenced and when it stopped before the accident. He told counsel for the plaintiff that he started eight months before the accident but he told doctors, including Dr Sekel, that he started six months before the accident. Particulars supplied by his solicitors said it was six months before the accident. In cross-examination he said that he could not remember when he started (T169). Mr Chen said that the plaintiff started work as a gyprocker in 2014 (T191/25).

99. The plaintiff gave evidence that he placed all of his earnings from his work as a gyprocker into his bank account. The cash deposits from 1 July 2015 up to 2 March 2016 were way below the amount included in the tax returns (T190/35). The deposits totalled $17,550 but the amount declared in the return was $27,975 (T191/20).

100. In the period 7 March 2016 to 11 October 2016 cash deposits to the account, which the plaintiff could not explain, amounted to $19,950. For part of that time the plaintiff was not in Australia, having gone to China.

101. On 11 October 2016 the plaintiff made a signed application to the Commonwealth Bank (DX 3). He stated that he was in full-time employment and that he was earning $800 nett per week after tax. That amount is consistent with the unexplained cash deposits in the bank statement (T192/5).

102. In relation to the cash deposits, counsel for the plaintiff submitted that the plaintiff did his best to disclose what he knew about the cash transactions. Arrangements were in place for family members overseas to pay back the money. Mr Chen corroborated the plaintiff and said that he was still owed $19,000. The plaintiff last had contact with Mr Li six months ago. The plaintiff said that he and Mr Li were friends. The plaintiff said that he lost contact with the people from Kevin Bricklayers.

103. I asked counsel for the plaintiff what I should do about the application in October 2016 to the Commonwealth Bank in which the plaintiff said he was working full-time earning $800 nett per week. Counsel said that the plaintiff was a man in a desperate financial situation. That is not an explanation advanced by the plaintiff.

104. I asked counsel for the plaintiff what I should do about the visa application in which the plaintiff said that he intended to return to China at the end of his wife’s visa. Counsel said that the plaintiff had a change of life circumstances. However that was not the explanation advanced by the plaintiff, who disavowed the statement about returning to China and said that the letter was prepared by an “agency”. Further, the plaintiff clearly told Dr Sekel that he and his wife intended to return to China when her visa expired.

Findings in Relation to Credit of the Witnesses

105. I accept the submission of counsel for the defendant that the evidence of the plaintiff, his wife and Mr Chen cannot be accepted at face value. For reasons set out below, unless their evidence is corroborated by other evidence, I do not accept them as witnesses of truth.

106. The plaintiff, his wife and Mr Chen have been in Australia for a total of 17 years between them. They have all been in Australia on student visas. In that time they have not managed to pass one subject let alone one course (apart from some introductory English courses in 2014). I have serious doubts as to whether they are genuine students. None of them could name the particular course they were enrolled in at present. None of them could name any subjects they had failed in the past or in which they were presently enrolled. When questioned they seemed to know little or nothing about how their courses operated. For example, Mr Chen did not know the name of the institution he was attending, the subjects he was enrolled in, or how many semesters there were in a year.

107. The plaintiff must have been advised that he was facing a real contest as to his credit, if only from the blunt terms of the Defence filed. In spite of that, no evidence was called to independently establish that he had worked as a gyprocker prior to the accident. No prior employer was called. No evidence was called as to any attempts to find a prior employer. No payslips were produced and no explanations given as to why payslips were not available. This was in spite of the fact that the plaintiff gave evidence that he had given the payslips to his solicitors. They did not have them. No White Card was tendered.

105. The plaintiff told the Department of Home Affairs and Dr Sekel, that at the conclusion of his visa in August 2021, and his wife’s student visa in August 2021, they intended to return to China. In the witness box the plaintiff and his wife both said that they intended to stay in Australia at the end of their visas. There was no evidence that they would have any chance of doing so. The explanation that they had had a change of heart was directly contradicted by what the plaintiff said to the Department of Home Affairs and to Dr Sekel. I do not believe the plaintiff or his wife when they said they have an intention to remain in Australia.

106. The plaintiff told the Commonwealth Bank, some months after the accident, that he was in full-time employment and that he was earning $800 nett per week. I reject the plaintiff’s explanation that he gave a payslip to the bank and the bank wrote that information on his application. The plaintiff signed the application as true and correct. If he was not working, and unable to work because of injuries suffered in the motor vehicle accident, then what he told the bank was a lie. If he was working, as he told the Commonwealth Bank, then what he told the court was a lie.

107. Immediately before the accident in 2016 and immediately after the accident, deposits of cash, which on the evidence did not come from Mr Chen or Mr Li, were being put into the plaintiff’s Commonwealth Bank account. The plaintiff said that he put all of his money from working as a gyprocker before the accident into the account. The deposits which went into the account after the accident were for similar amounts. The plaintiff was given multiple chances to explain the source of these cash deposits and could simply provide no explanation for them. If they were loans, the plaintiff did not say so, and in any event they did not come from Mr Chen and Mr Li. If the money came from working, then the deposits are evidence that the plaintiff was working before and after the accident, in spite of what he told the court.

108. The plaintiff’s evidence about the need for care was not credible. He said that after the accident he could not do any domestic duties in the shared accommodation at Auburn. However, it turned out that Mr Chen had been away in China for some time when the accident occurred, and the plaintiff looked after himself in that time. The evidence the plaintiff gave about Mr Chen taking over his share of the domestic chores was simply wrong.

109. The evidence the plaintiff gave about not being able to do domestic chores after his marriage was similarly unconvincing. The notion that he could not do dusting because he could not wring out a wet cloth was simply pathetic. He said that he could not do vacuuming or mopping because he could not use his right hand. He said that he could not do cooking. There was no evidence as to why he could not use his left hand to do these things, or at least do them with his left hand with some assistance from his right hand.

110. The view I formed of the plaintiff was that he would say whatever he thought would assist him to achieve an award of damages in this case, no matter where the truth lay.

111. The plaintiff’s wife gave evidence that she did all of the housework by choice. The plaintiff’s wife said that she did the washing, which is apparently done in a washing machine. When the plaintiff was asked whether he could do washing, he said that he could not do a hand wash. There was no evidence that the couple ever do hand washing as they have a washing machine. This is another example of the plaintiff crafting an answer to assist his own case.

112. The evidence given by the plaintiff’s wife that she had no idea whether her husband was left hand or right hand dominant was not even worthy of consideration. It was nonsense. That answer was given, as counsel for the defendant submitted, after the wife was cross-examined about why her husband could not do the cooking. Like much of her evidence, it was simply unbelievable.

113. There are parts of the evidence of the plaintiff which I do accept. That is because some of his evidence is corroborated by other independent evidence. For example, for reasons set out below I accept the version of the accident given by the plaintiff. It is corroborated, in part, by a written statement made by the defendant about how the accident occurred. I also accept that the plaintiff suffered soft tissue injuries to the right wrist and the right shoulder, because he has significant medical support for such injuries. How severe the injuries were, and whether there are any current sequelae from them, is another matter.

114. I will set out below those parts of the evidence called for the plaintiff which I do accept.

Biomedical Engineering Evidence

118. The plaintiff qualified Dr Gibson and the defendant qualified Mr Griffiths, who are both biomedical engineers. Each made a set of detailed assumptions about what happened in the accident and produced reports which were tendered. There was also a conclave report and both gave oral evidence.

119. With no disrespect to either witness, I found little utility in their evidence. Both made different assumptions, and came to radically different conclusions. The evidence about what happened in the accident was so general, that neither witness could really create a detailed reconstruction of the accident and the forces involved in it.

120. The defendant himself was not called to give evidence. However, a statement which the defendant made to a property damage insurer was put into evidence (DX 7, p 23). The defendant said:

“It was peak hour traffic and was in the left lane trying to merge to the right. I thought it was clear but there was a car coming and hit my d/s [driver’s side]. He nearly tipped over. Everything happened so fast and something has hit my left side but don’t know what. The wheel on the d/s is bowed.” (Emphasis added)

121. This version of the accident is consistent with that of the plaintiff, who says that his car was tipped up in the air onto its two right wheels, so that the left wheels were in the air, and it then fell back to the ground. Mr Griffiths put forward a theory as to how that happened, which involved entanglement of the front driver’s side wheel of the defendant’s car and the front passenger side wheel of the plaintiff’s car.

122. I accept the submission of counsel for the plaintiff (T196/15) that the accident was one that involved significant forces, both lateral and vertical. I also accept the submission of counsel for the plaintiff that the plaintiff’s vehicle was written off to the value of $7,500. I accept the plaintiff when he says that the car had to be towed away from the accident because it was not driveable.

123. I find that there was a significant sideways collision between the two vehicles which caused the plaintiff’s two left wheels to leave the ground, tipping the plaintiff’s car onto its two right wheels. Both this initial collision, and the forces involved when the plaintiff’s vehicle fell to earth, could have caused the plaintiff’s right wrist and right shoulder to either strike a hard surface within the vehicle, or be subject to significant forces.

124. Further, the preponderance of medical evidence is that the accident could have caused soft tissue injuries to the right wrist and right shoulder. I deal with that more fully below.

Findings in relation to Medical Evidence

125. Most of the medical examiners found some restriction of movement in the right shoulder and the right wrist. Such observations were made by Dr Conrad, Dr Long and Dr Machart.

126. Those doctors, together with Dr Woo, accepted that the plaintiff had suffered a soft tissue injury to the right shoulder and a soft tissue injury to the right wrist in the accident.

127. There was complaint on the day of the accident to Dr Wan of pain in the right shoulder and right wrist.

128. There was no complaint on the day of the accident recorded by Dr Wan about any pain in the neck. However, within a relatively short time, Dr Wan recorded a complaint of neck pain. In a conclave report Dr Woo and Dr Machart accepted that there had also been a soft tissue injury to the cervical spine. It had long since resolved, according to Dr Woo.

129. The MRI of the right wrist provides some clinical evidence for a soft tissue injury to the right wrist. On examination Dr Machart induced a click in the right wrist which was painful. This too was a clinical sign of a soft tissue injury to the wrist which is ongoing.

130. I accept the conclave opinion of Dr Woo and Dr Machart that there were soft tissue injuries to the right wrist, right shoulder and cervical spine in the motor vehicle accident. I also accept their view that the expectation is for the symptoms to improve and that it is unlikely there would be any long term disability or need for treatment. This joint opinion is in line with the view of the independent assessor Dr Long.

131. I do not accept the opinion of Dr Conrad that there is a need for ongoing medication, medical supervision and physiotherapy at a cost of $2,000 per year. No reasoning is provided in the report for that view. No other doctor held that opinion. I accept the view of Dr Woo and Dr Machart that there is no need for any ongoing treatment.

132. In relation to domestic assistance, I do not accept the opinion of Dr Conrad that there has been and will be a need for six hours a week of domestic assistance. I have already made factual findings above about the plaintiff’s evidence concerning his domestic capacity. Dr Conrad provides no reasoning for his view about the need for care, and in any event it is to be wondered how a general surgeon could offer such a view, particularly as to the number of hours required. If objection had been taken to the admissibility of that part of the report, I would have rejected it, in accordance with well-known decisions of the Court of Appeal.

133. I accept the opinion of Dr Woo that the plaintiff does not and will not require any domestic assistance. This is also the opinion of Dr Machart, as expressed in his own reports and in the conclave report.

134. The findings recorded above in relation to medical evidence significantly affect the conclusions expressed below in relation to each head of damage.

Assessment of Damages

135. The plaintiff is not entitled to non-economic loss as he is not over the threshold prescribed by the Act.

136. The claim for loss of past superannuation was abandoned at trial.

Past Out-of-Pocket Expenses

137. All of the past out-of-pocket expenses bar one have been paid by the insurer. Such payments operate as a defence pursuant to s 83(5) of the Act. The sole item claimed for past out-of-pocket expenses is $38.75 for an attendance by the plaintiff upon Dr Wan on 10 October 2020 (DX 6). As previously recited, this attendance had to do with the problem of reflux. The claim for $38.75 is not allowed.

Future Out-of-Pocket Expenses

138. For reasons set out above the opinion of Dr Conrad has been rejected. Having accepted the opinion of Dr Woo and Dr Machart (DX 8) there will be no award for future out-of-pocket expenses.

Past Care

139. The claim for past care was for six hours per week at gratuitous care rates. The evidence given by the plaintiff and his wife has been rejected on this topic, for reasons set out above. The opinion of Dr Conrad has been rejected for reasons set out above. I accept the opinion of Dr Woo that there has not been, and will not be, a need for domestic assistance.

140. There will be no award for past care.

Future Domestic Assistance

141. For the same reasons, the claim for future domestic care is rejected and there will be no award under this head of damage.

Past Economic Loss

142. The plaintiff claimed $600 nett per week for 249 weeks, a total of $149,400 (MFI 2). Counsel for the defendant submitted that there should be no award for past economic loss.

143. Counsel for the defendant referred the court to White v Benjamin [2015] NSWCA 75 at [40]:

“The plaintiff bore the onus of proving her loss – if there was no evidence before trial judge sufficient to satisfy him as to an established loss, the plaintiff was bound to fail on that head of damage.”

144. Counsel for the defendant submitted that the plaintiff had not proved that he was working at the time of the accident and had not proved his loss (T195/35). In the alternative it was submitted that the plaintiff was working after the accident, and was depositing his cash earnings into his Commonwealth Bank account. Counsel for the plaintiff submitted that the plaintiff had been working as a gyprocker prior to the accident and that he could not work in that field afterwards. That submission obviously depends upon the court accepting the plaintiff’s evidence about work, at face value. I decline to do so.

145. The plaintiff has medical support for the proposition that he has had an interference with his capacity to do heavy physical work, such as gyprocking, since the accident. Dr Woo said (PX 2):

“He is unfit for his pre-injury duties in gyprock because of continuing pain in his right shoulder and right wrist.

He is unfit for any physical work that requires repetitive lifting and turning.

He is fit for office duties.

He is fit for his study in business.”

146. Dr Machart found that there had been an interference with the capacity of the plaintiff to do gyprock work, probably for about one month after the accident (DX 7, p 64).

147. I have accepted for reasons set out above that the plaintiff has an ongoing soft tissue problem with his right wrist. Several doctors think that it is still a problem, and there is objective clinical material in the MRI scan of the right wrist to suggest that there is soft tissue damage.

148. The report of Dr Woo in which he said that the plaintiff was unfit for his pre-injury duties in gyprocking was dated 10 February 2017. The most recent report of Dr Woo is the conclave report (DX 8) in which he and Dr Machart agree that “there is unlikely to be long term disability” and there is an expectation that the symptoms will improve.

149. I find that as a result of injuries to the right wrist and right shoulder suffered in the accident, the plaintiff would have had difficulty performing work as a gyprocker immediately after the accident. This problem would have lasted until February 2017, being the date of the report of Dr Woo. Sometime between February 2017 and the most recent report of Dr Woo, being 27 November 2020, the injuries suffered by the plaintiff have to a large extent resolved. There is no medical support (since I have rejected the opinion of Dr Conrad) that there is now an ongoing disability to do physical work.

150. In any event, even if I had accepted Dr Conrad, he thought that the plaintiff could do 12-15 hours per week of lighter type of work.

151. The plaintiff has not really attempted to find any lighter work. There was no explanation why he has not tried to find work of a kind he has done in the past. He has been a waiter and he could still do that. He had done driving and he could still do that. The plaintiff’s suggestion that it was hard to find such jobs is his suggestion alone, and was not corroborated by any other evidence. I do not accept the plaintiff on this point since he was not corroborated by independent evidence.

152. Having found that there was an interference with the plaintiff’s theoretical earning capacity as a gyprocker for some time after the accident, I have to resolve the anterior questions of whether he was a gyprocker before the accident, and whether he went back to gyprocking after the accident. I do not accept the evidence of the plaintiff that he did not return to work as a gyprocker after the accident. I have already pointed to the submission made by counsel for the defendant, which I have accepted, that the cash deposits to the Commonwealth Bank account after the accident are completely unexplained, and are similar in size to those before the accident.

153. If the plaintiff was working as a gyprocker before the accident and putting money into his account, then the most probable inference is that he continued to work after the accident and continued to put cash derived from gyprock work into his bank account. I find as a fact that he did perform work shortly after the accident. There really is no other inference available about the source of the funds deposited into the Commonwealth Bank account in 2016 after the accident occurred. Mr Chen did not say it was his money and Mr Li was not called to give evidence, so there was no evidence that it was his money. So far as the plaintiff was concerned, he simply said that he did not know where those deposits came from or could not remember. I do not accept that evidence given by the plaintiff. I find that the plaintiff did work before the accident, and continued to work after the accident. This is what he told the Commonwealth Bank in October 2016 – that he was working full-time and earning $800 nett per week.

154. In the light of those conclusions, I find that any interference with the plaintiff’s earning capacity to do physical work does not sound in damages, as the plaintiff did some sort of paid work after the accident. There will be no award for past economic loss.

Future Economic Loss

155. For the same reasons, there will be no award for future economic loss.

Conclusion on Damages

156. While breach of duty of care was admitted, and while I have found that the plaintiff did suffer soft tissue injuries to the neck, right shoulder and right wrist in the accident, the plaintiff fails on every head of damages claimed for reasons set out above.

157. The end result is that there will be a judgment for the defendant. Costs will follow the event.

Orders

158. The orders of the court are:

1. Judgment for the defendant.

2. Order the plaintiff to pay the defendant’s costs.

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Decision last updated: 18 December 2020