Wael Al-Buseri v Don Jimme

[2019] NSWDC 728

District Court

New South Wales

Medium Neutral Citation:

Wael Al-Buseri v Don Jimme [2019] NSWDC 728

Hearing dates:

4 – 7 November 2019

Date of orders:

29 November 2019

Decision date:

29 November 2019

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

(1) Judgment and Verdict for the plaintiff in the sum of $22,138.72.

 

(2) Interest thereon at the rates prescribed from time to time pursuant to the provisions of section 100 of the Civil Procedure Act 2005 (NSW).

 

(3) Should either party wish to be heard on costs, they should indicate that wish by contacting my associate, such contact to be made no later than 7 days from today.

 (4) In the absence of the parties wishing to be heard on costs, I order that the defendant pay the plaintiff’s costs.

Catchwords:

TORTS – Negligence – Road accident cases

 

Liability – where plaintiff’s vehicle travelling through intersection – where plaintiff’s vehicle struck by the defendant’s vehicle turning across his lane – competing evidence of forensic traffic engineers – factual findings in relation to the plaintiff’s speed at relevant times – Jones v Dunkel inference against the defendant – liability established

  Damages – Future economic loss– where plaintiff was and continues to be employed as a train driver – where plaintiff has returned to his pre-injury duties – where plaintiff continues to live a physically active lifestyle – no diminution in working life proved – Other heads of damage – past out of pocket expenses agreed – future out of pocket expenses subject to Medical Assessment Service (MAS) certificates – no evidence of past economic loss

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Allianz Australia Insurance Limited v Serria Girgis and Ors [2011] NSWSC 1424
Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138
Jones v Dunkel (1959) 101 CLR 298

Category:

Principal judgment

Parties:

Wael Al-Buseri (Plaintiff)
Don Jimme (Defendant)

Representation:

Counsel:
Ms I. Ryan (Plaintiff)
Mr B. Wilson (Defendant)

  Solicitors:
Brydens Lawyers (Plaintiff)
Hall & Wilcox (Defendant)

File Number(s):

2018/00043766

Publication restriction:

Nil

Judgment

Introduction

1. Marion Street is a major suburban thoroughfare running through Bankstown. In broad terms, it runs from west to east. On 12 December 2015, at approximately 7pm, the plaintiff was driving his blue Subaru vehicle along Marion Street in an easterly direction. Marion Street is a dual carriageway.

2. The plaintiff is, and was at that time a train driver. He had earlier in the day completed an early shift and had spent the afternoon having a nap. The plaintiff and his family lived at Condell Park. The plaintiff’s wife and his three children had gone to her parents’ house at Bankstown for dinner. They had left while he was asleep.

3. As arranged, when the plaintiff had refreshed himself by his nap, he was proceeding to meet his family at his parents in laws’ house so that he could have dinner there. This is what caused him to be taking the easterly route along Marion Street (T39).

4. As the plaintiff approached the intersection of Little Road and Marion Street, he noticed the defendant’s green Toyota Land Cruiser SUV stopped in the middle westerly lane of Marion Street. The plaintiff said that he approached the intersection of Marion Street and Little Road at between 55 to 60 km/h (T95; T96.20). The speed limit was 60 km/h. The plaintiff said that the defendant turned across his lane, and that the plaintiff simultaneously braked and swerved (T9) in an attempt to avoid a collision, but that a collision was unavoidable.

The Proceedings

5. The plaintiff has commenced proceedings in negligence against the defendant pursuant to the provisions of Motor Accidents Compensation Act 1999 (NSW) (the “Act”). He is entitled to commence these proceedings as a result of the issue of a certificate pursuant to the provisions of s 92(1)(a) of the Act, as required by s 108(1)(a) of the Act. The proceedings therefore are to be decided by reference to the Act, and the common law as modified by the Civil Liability Act 2002 (NSW) (the “CLA”).

The Plaintiff

6. The plaintiff was born in Kuwait on 14 February 1974. In 1993, he acquired the Kuwaiti equivalent of the HSC, and in 1997 he was awarded a Bachelor of Arts, majoring in English, from Basrah University.

7. In the same year, he migrated to Australia. He was initially employed as a security guard. In the years between 2001 and 2003, he obtained various diplomas and certificates in the field of information technology from Campbelltown TAFE (Ex P1).

8. On 29 March 2000, he married, and he has three children.

9. In June 2003, the plaintiff commenced employment with State Rail (now Transport NSW) as a customer service attendant. In 2004, he was promoted to the position of train guard. In 2005, he obtained a certificate IV in Rail Operations. In April 2013, he was promoted to the position of train crew team leader (Ex P1). In 2014, he began to drive trains. He held that position at the date of the accident, and remains in that position to this day.

The Aftermath of the Accident

10. The plaintiff says that in the immediate aftermath of the accident, he was in shock, but was feeling pain in his shoulders and back and was experiencing tingling and numbness in his arms (T18). Police and ambulance attended at the scene and the plaintiff provided the police with a statement. The plaintiff declined the suggestion of ambulance officers that he attend hospital (T17.41).

11. The plaintiff telephoned his wife to inform her of the accident, and his wife attended the scene. Following completion of his involvement in police enquiries, the plaintiff’s wife took him home. Throughout the balance of the evening, the pain to which I have referred worsened. At approximately midnight, he summoned an ambulance and was conveyed to Bankstown- Lidcombe Hospital (T19). He was there treated with analgesics. He returned home but found that he was still in considerable pain, and that the analgesics which he had been prescribed were insufficient to control the pain (T20).

12. This situation continued to 18 December 2015 when he again attended Bankstown-Lidcombe Hospital emergency department (Ex P1). He was again treated by staff primarily by way of analgesics.

13. On 24 December 2015, for the first time he sought the attention of a general practitioner, Dr Lam (Ex P1; T24).

14. In the meantime, he had commenced physiotherapy treatment with Rehab Solutions Australia. This occurred on 15 December 2015.

15. The plaintiff returned to work as a train driver a few days after the accident (T23.7), and subject to a few days of sick leave over time which he says are attributable to symptoms of the accident (T25), he has worked continuously ever since as a train driver.

16. On 21 February 2018, the plaintiff underwent an MRI assessment of his cervical spine. The conclusion of the radiologist was (Ex P2, p1):

CONCLUSION: Cervical spine MRI shows no cord lesion or acute fracture. I do note mild central C5/6 stenosis due to discovertebral complex. Foraminal evaluation notable for severe C5/6 stenosis compressing the right C6 nerve root and moderately severe left C3/4 and C6/7 stenosis compressing the exiting left-sided C4 and C7 nerve roots respectively. At C5/6, moderately severe left-sided foraminal stenosis is also evident abutting but not deviating the exiting left C6 nerve root.

17. On 24 February 2018, the plaintiff underwent an MRI assessment of his thoracic spine. The radiologist who conducted the assessment provided the following conclusion (Ex P2, p4):

CONCLUSION: MRI of the right shoulder does indicate an anterosuperior labral tear without destabilisation of the bicipital anchor. The thickened subacromial/subdeltoid bursa without fluid distention may be implicated in subacromial/subdeltoid impingement, however, clinical correlation is essential.

18. On 23 January 2018, the plaintiff was examined by Dr Peter Conrad, a surgeon. Dr Conrad gave the following assessment (Ex P2, p15-16):

OPINION: This man was involved in a motor vehicle accident on 12 December 2015. Mr Al-Buseri sustained a whiplash injury of the neck, associated with evidence of discal damage, as per CT scan, a right shoulder strain and a back injury with right-sided sciatica.

In view of the chronicity of his symptoms, Mr Al-Buseri should now have an MRI scan of the cervical spine and thoracolumbar spine to rule out significant discal injuries and an MRI scan of the right shoulder to rule out any significant rotator cuff injury or labral injury.

At this stage, Mr Al-Buseri needs conservative treatment including the modalities of medications, medical supervision and physiotherapy at a present day cost of some $2,000.00 per year.

Mr Al-Buseri is very well motivated and continues working as a fulltime train driver and he is able to do this, providing he is able to stand or sit at will and not lift anything more than 5kgs in weight and not do any overhead work with his right arm. All of this should be part of a structured rehabilitation program.

Should his wife not be able to assist with the heavier part of housework, home and garden maintenance, he might need about six hours per week of Home Care assistance.

His prognosis is guarded.

19. On 12 March 2018, Dr Conrad was provided with the MRI scan of the plaintiff’s cervical spine and expressed the following view (Ex P2, p20):

This MRI scan confirms that Mr Al-Buseri has had a severe whiplash injury of the neck, causing discal damage as described. It supports but does not change the recommendation for treatment, work capability and need for domestic assistance, which were given on a clinical basis and remain unchanged by this further information.

Liability

20. The case on liability falls to be determined by reference to the evidence of the plaintiff, and the evidence of forensic traffic engineers. The defendant did not give evidence; nor did he call any evidence of any person who observed the accident.

21. As I have indicated, the plaintiff gave evidence that immediately prior to the accident, he was driving at approximately 55 to 60 km/h (T95; T96.20). As I have also earlier indicated, the speed limit on Marion Street is 60 km/h. The plaintiff says that the defendant turned across his path when the defendant was 10 metres in front of him (T10; T97). He says that he braked and swerved to the left to avoid the accident (T9), but was unable to do so.

22. The plaintiff’s credit was the subject of attack. I will not go into the details of that attack, although I do accept the gravamen of those submissions, namely that there were certain aspects of his evidence which were less than satisfactory. That said, those unsatisfactory aspects of his evidence did not cause me to form the view that he was not fundamentally a witness of truth. For the most part, he gave his evidence in a measured way, and I had the belief that he was attempting to assist the Court. He was prepared to make concessions when appropriate, especially in relation to the extent of his injuries, his residual disability, and his capacity to cope with those disabilities, especially in a working environment.

23. The defendant cross-examined the plaintiff to the effect that the plaintiff was driving considerably in excess of the speed limit at the time of the accident. This was denied by the plaintiff.

The Experts

24. The proposition that the plaintiff was speeding, was derived from the evidence of Mr Urquhart, the forensic engineer called by the defendant. Mr Urquhart opined that the physical evidence at the crash scene led him to the conclusion that the plaintiff’s impact speed was approximately 88 km/h (Ex D1, p34; T170.17). When asked to factor in the plaintiff’s evidence of braking prior to the collision, Mr Urquhart postulated an approach speed of the plaintiff’s vehicle of at least 100 km/h (T171.33-50).

25. Ms Gaffney, the expert qualified by the plaintiff, expressed a view that the likely speed on impact was around 70 km/h (Ex P8, p43; T182.42, T185). When asked to factor in the plaintiff’s braking, she said that she could not estimate his approach speed, but of course accepted that if there had been any relevant effective braking, a higher approach speed would be inferred (T185).

26. Ms Gaffney’s evidence as to braking was that she was sceptical that heavy braking in fact occurred, as there was no physical evidence of it (T159-161). Mr Urquhart, I believe accepted this, although he said that it was difficult to tell either way due to the plaintiff’s vehicle’s anti-lock ABS brakes which may have resulted in there being no physical marks of braking, even if it occurred (T162-163). Alternatively, the ABS system may leave what he described as “skip skids”, being short intermittent tyre marks on the road (T162.40-50).

27. Ms Gaffney said that on her analysis of the physical evidence, the plaintiff’s estimation of 60 km/h at collision was quite possible (T182.25-27,33-38; T185.46; Ex P8, p44).

28. At the end of the day, I did not consider that the expert evidence was determinative of the issue of the plaintiff’s likely approach speed. I formed this view inter alia as while the experts were in agreement about the physical evidence, both emphasised that their analyses of approach and impact speeds were extremely sensitive to assumptions applied by the experts to the physical evidence. Small variations in certain of these assumptions lead to significant differences in postulated impact and approach speeds.

29. That this is so, is well illustrated by the fact that the reason for the difference in opinion between the experts of an impact speed of 88 km/h (Urquhart) compared to 70 km/h (Gaffney) was generated by the fact that Mr Urquhart proceeded from an assumption of an implied first impact between the vehicles at a point being approximately 1 metre earlier than that which was assumed by Ms Gaffney (Ex P9, p5).

30. I should add, in that regard, that the start point of Ms Gaffney’s analysis was her assumption that the first contact between the vehicles occurred at the position where the first physical evidence of contact on the roadway can be found. Mr Urquhart, on the other hand, assumed that that contact occurred approximately 1 metre earlier than the point of first evidence of contact. I prefer Ms Gaffney’s approach, based as it is more firmly in the physical evidence.

31. I also prefer Ms Gaffney’s approach due to the ultimate conclusion of both of the experts as to impact and approach speeds. In my view, Mr Urquhart’s proposition that the plaintiff was travelling at 88 km/h on this major suburban thoroughfare at 7pm on the daylight saving Saturday evening, is inherently unlikely. Self-evidently, a postulated speed of 100 km/h in my view was very unlikely. Ms Gaffney’s postulated 70 km/h in my view is far more likely to be a good guide of the plaintiff’s actual speed.

32. In this regard, it is relevant to note that the plaintiff was not cross-examined to the effect that he was in a hurry when undertaking his trip. There was no suggestion that he was running late for dinner. There was similarly no evidence of the plaintiff having a driving record which suggested he was a habitual speeding offender. In my view, there is simply no reason to suspect the plaintiff may have been driving at speeds postulated by Mr Urquhart. Indeed, for the plaintiff to drive at such speeds in a street such as Marion Street would be reckless, and in my opinion may well have been difficult to achieve.

33. As Ms Gaffney postulates an impact speed of 70 km/h, but concedes that 60 km/h is quite possible, and the plaintiff suggests that his speed was approximately 60 km/h, subject to the caveat which follows, I do not believe that there is a basis for rejecting the plaintiff’s estimate of his speed. In doing so, I am cognisant of the fact that it is difficult for anyone to accurately estimate speed generally, and especially in the seconds before an imminent collision, as was confronting the plaintiff.

34. Given this inherent difficulty of estimation, I take the plaintiff’s evidence in reality to be that he was travelling at about the speed limit, a speed which on a busy road such as Marion Street would imply that he was travelling the same speed as the ambient traffic. As such, I take his evidence to be that he was travelling approximately 60 km/h. To the extent to which it is necessary for me to be more precise, and in light of my broad acceptance of Ms Gaffney’s evidence, I find that the plaintiff was driving at 65 km/h when approaching the point of collision.

Jones v Dunkel

35. The person capable of rebutting the plaintiff’s contention as to speed, is of course the defendant. It would have been simple for the defendant to give evidence as to what occurred, and in so doing give his estimate of the plaintiff’s approaching speed. He did not do so. His evident failure to give evidence is unexplained. I infer that his evidence would not have assisted his case (Jones v Dunkel (1959) 101 CLR 298).

Heavy Braking

36. To the extent to which the plaintiff’s evidence of heavy braking is relied upon by the defendant, I do not find on the balance of probabilities that any relevantly effective braking occurred. The experts were in agreement that there was no physical evidence of heavy braking. Just as it must have been difficult for the plaintiff to accurately estimate his speed in the circumstances that were unfolding before his eyes as the defendant turned into his path, it must be inherently difficult for him to describe with precision what occurred in the instant before impact. I doubt that the plaintiff did effectively brake, and even if he did, whether or not that braking was “heavy” is difficult if not impossible to assess. The adjective “heavy” in the circumstances is so vague as to make it virtually impossible to give it relevant meaning. As there was no physical evidence of braking, I do not believe that any effective braking occurred prior to the collision.

37. The defendant did not suggest that if I found that the plaintiff was not driving at a relevantly excessive speed, the requirements of the common law and the CLA for the establishment of liability for the tort of negligence would not be satisfied.

38. In summary, I find:

1. The plaintiff’s speed approaching the accident was approximately 65 km/h.

2. His speed on impact was approximately 65 km/h.

3. The accident occurred as a result of the defendant’s negligence in turning across the path of the plaintiff which in the circumstances was unsafe to do.

Contributory Negligence

39. The defendant pleaded a case in contributory negligence. Various particulars of contributory negligence were pleaded although the trial was conducted on the basis that the contributory negligence relied upon by the defendant was the plaintiff’s driving at excessive speed (T221.16-26). As I have found that the plaintiff was not driving at a relevantly excessive speed, it follows that no contributory negligence has been established.

Damages

40. The plaintiff initially sought the following heads of damage:

1. Past out-of-pocket expenses.

2. Future out-of-pocket expenses.

3. Past economic loss including superannuation.

4. Future economic loss including superannuation.

5. Past care.

6. Future care.

Past and Future Care

41. The defendant relied on certificates issued by the Medical Assessment Service (“MAS”) in relation to past and future care, to the effect that no such past or future care was required (Ex D2). The plaintiff ultimately conceded that these certificates were binding on me (T231.3-17). This was an appropriate concession (see Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138; Allianz Australia Insurance Limited v Serria Girgis and Ors [2011] NSWSC 1424).

Past Out-of Pocket Expenses

42. These are agreed at $5,440.22 (T149.41).

Future Out-of-Pocket Expenses

43. The plaintiff’s future out-of-pocket expenses have been the subject of a MAS dispute and there have been relevant certificates obtained. The MAS certificates certified that the following were caused by the motor accident and were reasonable and necessary (Ex D2, p9):

1. 8-10 physiotherapy and hydrotherapy treatments per year.

2. Future quarterly general practitioner consultations.

44. The certificate indicated that both treatments would be required for life.

45. The defendant in his written submissions accepted that these treatments were established and accepted that this resulted in a quantification of future out-of-pocket expenses as follows:

1. 8 physical therapy treatments (such as physiotherapy and hydrotherapy) for 1 year x $70 per session = $560.

2. 4 general practitioner consultations per year x $79 (amount charged by United Medical Centre for standard consultation) = $316 /52 = $6.08 per week x 917.50 (5% multiplier) = $5,578.40.

46. It seems to me that this quantification insofar as it relates to future physical therapy treatments is incorrect, as it does not quantify those treatments over the plaintiff’s lifetime. That this was intended is clear on the face of the certificate (Ex D2, p9). In addition, I believe it is appropriate to adopt 9 such treatments per annum. This, in my view quantifies this aspect of damage as follows:

1. 9 physical therapy treatments (such as physiotherapy and hydrotherapy) x $70 (a rate accepted by the defendant) = $630/52= $12.12 per week x 917.50 (5% multiplier) = $11,120.10.

2. 4 general practitioner consultations per year x $79 (amount charged by United Medical Centre for standard consultation) = $316 /52 = $6.08 per week x 917.50 (5% multiplier) = $5,578.40.

47. This equates to a total of $16,698.50.

48. The plaintiff submitted that the amount awarded should be in excess of the sums specified in the MAS certificates, but did not point to any evidence which appears to me to justify that proposition. Accordingly, I propose to make orders in respect of this head of damage in accordance with the MAS certificates to which I have just referred.

Past Economic Loss including Superannuation

49. I do not believe that there is any basis for any compensation in respect of past economic loss including superannuation. This is so, as the plaintiff has not missed any work as a result of this accident. He gave evidence of occasional sick leave attributable to discomfort consequent upon the accident (T25). These sick leave days, as his employment records show, were very few indeed. Moreover, he was paid for the sick days, and thus it seems to me that he has suffered no loss as a consequence.

Future Economic Loss including Superannuation

50. The plaintiff sought some $250,000 in relation to damages for future economic loss. That sum was sought on the basis that if the plaintiff for some reason lost his job as a train driver, his residual disabilities which he suffers would put him at a significant competitive disadvantage in the labour market. The plaintiff led no evidence in support of either factual limb of that assertion. That is to say that there was no evidence as to the probability of the plaintiff’s job being in jeopardy, and nor was there evidence of a labour market disadvantage.

51. In support of his contention, the plaintiff relied on a medical report of Dr John Davis, a specialist in occupational medicine dated 6 July 2016. In that report, Dr Davis states (Ex P2, p10-11):

He has demonstrated his ability to return to his pre-injury duties, and I believe that he will be able to continue in this work, at least in the short term, although with increasing traumatic degenerative changes over time I expect that his work capacity in this position will be decreased by 50% by the age of 60. I would not expect him to work after the age of 65.

I consider he has achieved maximal medical improvement.

52. Dr Davis was not required for cross-examination. That is also the case with each of the other medical practitioners upon whose evidence the parties placed reliance. In addition, there was no conclave of experts and thus no form of testing of the opinions of the medical experts as to where and why they differed.

53. No other medical expert suggested that the plaintiff’s medical condition would result in traumatic degenerative changes which would decrease his work capacity in the manner suggested by Dr Davis.

54. All medical experts recommended the continuation of conservative treatment. Dr Conrad merely stated that the plaintiff’s “prognosis is guarded” (Ex P2, p 16). Dr Margaret Gibson expressed no concerns about the plaintiff’s condition having a debilitating effect on his capacity to work in the future (Ex D2).

55. Dr Davis suggested that the plaintiff would not be suited to work of “a weighted or forceful nature” (Ex P2, p9), and nor would be suitable for working in confined spaces. He stated that “It is essential that he does have the opportunity to change postures as required for comfort” (Ex P2, p10).

56. Being a train driver; the plaintiff does not lift heavy weights, and nor is his workplace a confined space. He is able to drive seated or standing, and gave evidence that he did swap between those driving modes, as it made his back more comfortable (T32-33).

57. I do not accept the prognosis of Dr Davis. I take this view as inter alia his opinion of the risk of “traumatic degenerative changes” (Ex P2, p10) did not appear to me to be supported by a clear articulation of the reasons for that opinion.

58. Given the lack of exploration of the differences in opinion of the experts at trial, in rejecting Dr Davis’ prognosis, I have also placed reliance on the plaintiff’s evidence and my observations of him in the witness box.

59. The plaintiff presented in the witness box as a robust gentleman. The evidence was, as I have indicated, that he has basically not missed a day’s work since the accident, and that his salary has indeed increased since that time. He gave evidence of his decision to switch from driving suburban trains to interurban trains (T32.47-33.2), which was hardly consistent with his employment being in jeopardy. His work fits perfectly within the confines of Dr Davis’ warnings about types of employment not available to him.

60. He leads an active life which includes coaching children in Tae Kwon Do, which in turn involves him teaching his charges the various throws, blocks and the like associated with the sport (T45-47). As he accepted, this involves some considerable physical dexterity. He has since the accident trained at a gym, doing both resistance work and aerobic exercises (T6; T52).

61. As I have indicated, the plaintiff’s work practices allow him to work substantially unaffected by any residual discomfort from the accident. He did not suggest that his condition was deteriorating. There was no suggestion by the plaintiff, or other witnesses, that his position as a train driver is in the slightest peril.

62. Section 126(1) of the Act precludes me from making an award of damages for future economic loss unless the plaintiff satisfies me that the assumptions about future earning capacity or other events upon which such an award would be based accord with the plaintiff’s most likely future circumstances, but for the injury.

63. I have formed the view that the plaintiff has suffered no diminution in his future earning capacity, and as such I am precluded from making an award for future economic loss.

Orders

1. Judgment and Verdict for the plaintiff in the sum of $22,138.72.

2. Interest thereon at the rates prescribed from time to time pursuant to the provisions of section 100 of the Civil Procedure Act 2005 (NSW).

3. Should either party wish to be heard on costs, they should indicate that wish by contacting my associate, such contact to be made no later than 7 days from today.

4. In the absence of the parties wishing to be heard on costs, I order that the defendant pay the plaintiff’s costs.

Decision last updated: 04 December 2019