Wahba v Carroll and O'Dea Lawyers

[2018] NSWDC 128

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wahba v Carroll & O’Dea Lawyers [2018] NSWDC 128
Hearing dates:	6, 7 and 8 November 2017; 15 February 2018; 6 April 2018; 1 May 2018
Date of orders:	22 May 2018
Decision date:	22 May 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the second defendant. (2) Plaintiff pay the second defendant’s costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – professional negligence - plaintiff trips while disembarking from an aircraft in Queensland – plaintiff consults solicitors who allow the two-year limitation period under s 28 Civil Aviation (Carrier’s Liability) Act 1959 (Cth) to elapse, in the erroneous belief that the Civil Liability Act 2002 (NSW) applied – plaintiff brings a claim for professional negligence for loss of a chance to bring an action for damages for personal injury of a substantial nature, including a claim for past and future home care – breach of duty of care admitted - whether the second defendant’s breach of duty caused a loss to the plaintiff of a cause of action of any value - adverse findings as to plaintiff’s credit and concerning the absence of medical evidence of anything other than inconsequential injury – assessment of damages for the purpose of determination of loss of the chance claimed by the plaintiff to recover very substantial damages - whether the claim falls for assessment at large or pursuant to civil liability legislation – prior decision of the District Court of New South Wales in favour of the latter (Arefin v Thai Airways International Public Company Ltd (New South Wales District Court, 21 August 2007, unreported) – implications arising from method of assessment of damages under civil liability legislation in Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438 – correct approach to damages assessment is to make the assessment conformably with civil liability legislation – plaintiff’s damages, if assessed under civil liability legislation restricted to past out of pockets at best – failure to meet non-economic loss or to be entitled to past or future care – plaintiff unable to establish loss of the chance particularised as arising - judgment for the defendant
Legislation Cited:	Aviation Legislation Amendment (Liability and Insurance) Bill 2012 (Cth) Civil Aviation (Carrier’s Liability) Act 1959 (Cth), ss 25K, 25L, 28, 35 and 36 Civil Liability Act 2002 (NSW), s 35 Civil Liability Act (Qld) Commonwealth of Australia Constitution Act 1900 (Cth), s 109 Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, Art 17 Judiciary Act 1903 (Cth), ss 39, 78B, 79 and 80 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.35
Cases Cited:	Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 Arefin v Thai Airways International Public Company Ltd (District Court of New South Wales, 21 August 2007, unreported) Cockle v Isaksen (1957) 99 CLR 155 Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employees’ Association (1906) 4 CLR 488 Feletti v Contoulas [2000] NSWCA 59 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Gulic v O’Neil [2011] NSWCA 361 La Macchaia v Minister for Primary Industries and Energy (1992) 110 ALR 201 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McKenna v Avior Pty Ltd [1981] WAR 255 Nominal Defendant v Kostic [2007] NSWCA 5 Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Povey v Qantas Airways Ltd (2004) 223 CLR 189 R v Logue (NSW Court of Criminal Appeal, 31 March 1994, unreported) SAS Trustee Corporation v Rossetti [2018] NSWCA 68 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Watson v Meyer [2013] NSWCA 243
Texts Cited:	Department of Infrastructure, Transport, Regional Development and Local Government, “Review of Carriers’ Liability and Insurance – Discussion Paper” (May 2009) Gerald Ng, “Damages for personal injury sustained during international carriage by air”, 2010, Law Society Journal 66
Category:	Principal judgment
Parties:	Plaintiff: Mona Wahba First Defendant: Sydney Airport Corporation Limited Second Defendant: P. A. Carroll & D. B. Farah & H. G. Harrison & R. P. Higgins & H. Indari & A. O'Dea & P. Punch trading as Carroll & O'Dea
Representation:	Counsel: Plaintiff: Mr M Thompson Second Defendant: Mr D Lloyd   Solicitors: Plaintiff: Gerard Malouf & Partners Second Defendant: Yeldham Price O'Brien Lusk
File Number(s):	2016/361400
Publication restriction:	None

Judgment

Introduction

1. The plaintiff, by Statement of Claim filed on 2 December 2016, brings proceedings for damages for professional negligence arising from the failure of the second defendant to commence proceedings within time in order to enable her to bring a claim pursuant to s 28 Civil Aviation (Carrier’s Liability) Act 1959 (Cth) (“the Act”).

2. The circumstances leading to the plaintiff consulting the defendants were as follows. On or about 2 December 2013 the plaintiff was disembarking from an aircraft operated by Jetstar Airways Pty Limited (“Jetstar”) at the airport. The first defendant, in order to assist passengers from the aircraft to disembark, supplied facilities to be positioned at the exit door of the aircraft in the form of a staircase which was open to the elements and, as such, liable to have rain fall upon it. As the plaintiff used the staircase to disembark, she stepped on liquid, almost certainly rainwater, slipped and fell, and suffered injury.

3. The plaintiff consulted the second defendant, a firm of legal practitioners carrying on a practice as “Carroll & O’Dea”, in Sydney, whose practice consists largely of personal injury actions. She sought advice about her entitlement to bring a claim for her injuries within the limitation period. The second defendant failed to commence proceedings within the two years, principally because it was not realised at the time by those whom she consulted that the two year limitation period under s 34 of the Act applied, rather than the three year period under the Civil Liability Act 2002 (NSW) (“the Civil Liability Act”).

4. The second defendant acknowledge the breach of duty of care pleaded by the plaintiff, namely failing to commence proceedings against Jetstar in respect of the accident prior to the limitation period and failing to advise the plaintiff of the correct expiry date for an action of the kind she was required to bring. The plaintiff, accordingly, seeks damages in respect of the following:

1. her rights to damages against Jetstar for the loss set out in her statement of personal injury particulars; and

2. wasted costs and disbursements resulting from their acting in the proceedings.

5. In practical terms, since the plaintiff appears to have been on a “no win, no fee” basis, it is essentially the items in paragraph 24(a) of the statement of claim which are the subject of this claim.

6. The action was originally brought against two defendants. The plaintiff has settled the proceedings brought against Sydney Airport Corporation Ltd and Consent Judgment was entered into on 9 May 2017. The portion of the defence which relates to a claim that the first defendant is a tortfeasor liable in respect of any loss (which does not refer to s 35 Civil Liability Act) was not pursued at the hearing.

The issues identified by the parties

7. This is one of many cases where there has been non-compliance with the Standard Orders for Hearing. Mr Thompson told me that he had not prepared a statement of issues because he was working on the basis that the issues would be delineated by the second defendant, that it was sometimes difficult to know what to put in the Statement of Issues, and that the requirement to comply with the Standard Orders for Hearing was an obligation more honoured in the breach than in the observance (T 4 – 8).

8. The failure of the second defendant to comply with these requirements is just as much of concern, partly because the action is one for solicitors’ professional negligence and partly because the complexity of the issues for resolution did not emerge until well into the hearing.

9. Those complexities included an asserted inconsistency between New South Wales and Commonwealth legislation in circumstances where there is not only no stare decisis but not even a decision of a superior court of record on the issue. No consideration had been given by either party to Notices of a Constitutional Matter under s 78B Judiciary Act 1903 (Cth).

10. The next problem was that neither the statement of claim nor the defence identified the issues in dispute with any precision:

1. The statement of claim sought damages in the alternative from the occupier (the first defendant), apparently on the basis that the Civil Liability Act might apply to liability and/or damages. This part of the claim has been settled but the basis upon which the claim was brought is unhelpfully pleaded.

2. As to the defence, although this is a claim for professional negligence, there is no reference in the defence to any of the statutory defences under the Civil Liability Act: see Watson v Meyer [2013] NSWCA 243.

11. The second defendant identified only three issues at the commencement of the hearing, namely:

1. whether the solicitors admitted breach of duty caused any loss to the plaintiff;

2. if so, whether the plaintiff has failed to mitigate her loss and damage by abandoning her case against the first defendant; and

3. the assessment of the value of the lost opportunity to sue Jetstar.

12. The second of the three issues was effectively abandoned in the course of submissions.

13. The plaintiff’s approach to the issues in dispute was to identify the issues as follows:

1. whether the second defendant’s breach of duty caused a loss to the plaintiff;

2. if so, whether the plaintiff failed to mitigate her loss by abandoning her claim against the first defendant;

3. the method of assessment of damages and, in particular:

1. whether the claim falls for assessment at large;

2. the meaning and effect of s 28 Civil Aviation (Carrier’s Liability) Act 1959 in relation to the words “is liable for the damage sustained”;

3. whether the claim falls for assessment under Part 2 of the Civil Liability Act (NSW), or alternatively under the Civil Liability Act (Qld);

4. any discount applying in respect of the loss of the plaintiff’s chance to recover damages from Jetstar.

14. In practical terms, I am called upon to assess the loss of an opportunity, namely the opportunity to commence proceedings for damages under the regime set out in the Act. The plaintiff’s case is that she suffered substantial and serious injury in the form of a claim totalling either $323,515 (if the quantum of the claim were to be assessed under the Civil Liability Act) or $497,960 (if the damages were to be assessed under the regime for damages set out under the Act). The second defendant’s schedule of damages puts the value of the lost opportunity as being as low as $4,500 (if assessed under the Civil Liability Act) and at just over the threshold for damages in the District Court (as to which see r 42.35 Uniform Civil Procedure Rules 2005 (NSW)) if damages were assessed under the regime set out in the Act. The schedule of damages supporting these claims is set out below.

15. The hearing was dominated by the dispute as to which legislative scheme would apply to the quantum of the plaintiff’s lost opportunity to claim damages. The plaintiff contended that the Act applied to the assessment of damages to the exclusion of the Civil Liability Act, a bold proposition when what little authority there is in the form of decisions of this Court (Arefin v Thai Airways International Public Company Ltd (District Court of New South Wales, 21 August 2007, unreported)) and at appellate level (Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438) is to the contrary. The second defendant submitted that for reasons of comity (La Macchaia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204) and stare decisis (although the issue was not the subject of consideration in Pel-Air), I must apply the Civil Liability Act when determining the question of assessment of the plaintiff’s lost opportunity.

16. Any determination of the value of the lost chance of recovering damages in an action against Jetstar under the Act (whatever the quantum of damages) requires an examination of the plaintiff’s evidence in proceedings for personal injury.

17. The test to be applied is set out by the New South Wales Court of Appeal in Feletti v Contoulas [2000] NSWCA 59 as follows:

1. I must determine the prospects of success in the lost cause of action (see Feletti at [34]);

2. I must determine the sum likely to be awarded to the plaintiff and then reduce that sum by the percentage of her likely chance of success or failure.

The plaintiff’s evidence

18. Counsel for the second defendant draws my attention to the plaintiff’s statement of particulars which includes the following statement at paragraph 11:

Prior to the subject accident the plaintiff was self-sufficient, independent and fully capable of carrying out domestic duties in and around the household.

19. Her claim for injury is as follows:

1. Aggravation to a pre-existing lower back injury;

2. Left leg;

3. Right knee;

4. Fracture to the Coccyx;

5. Generalise [sic] bruising and lacerations;

6. Depression;

7. Anxiety;

8. Shock.

20. The disabilities claimed are as follows:

1. Pain, discomfort and restriction in the movement of the lower back;

2. Pain, discomfort and restriction in the movement of the left leg;

3. Pain, discomfort and restriction in the movement of the right knee;

4. Pain radiating from upper back to lower back;

5. Pain, numbness and tingling radiating down both legs;

6. Cramps in left leg;

7. Pain in left calf;

8. Difficulty weight bearing;

9. Back pain is worse when carrying things greater than 2kg;

10. Difficulty carrying objects;

11. Stiffness in the back;

12. Difficulty bending;

13. Difficulty twisting;

14. Difficulty squatting;

15. Difficulty kneeling;

16. Difficulty sitting for prolonged periods;

17. Difficulty standing for prolonged periods;

18. Difficulty sitting for prolonged periods;

19. Restriction in ability to climb;

20. Restriction in ability to traverse steps;

21. Restriction in ability to walk;

22. Restriction in ability to run;

23. Restriction in ability to traverse sloping, rough or uneven ground;

24. Restriction in ability to engage in pre-accident sports and recreations;

25. Impairment to sense of balance;

26. Neurotic fear of further slipping;

27. () Future arthritic degeneration of the left leg;

28. () Difficulty laying down;

29. () Inability to carry out pre-injury domestic duties;

30. () Intermittent involuntary urine leakage;

31. () Intermittent involuntary faecal leakage;

32. () Fatigue;

33. () Sleep disturbance;

34. () Loss of enjoyment of life;

35. () Fear of re-injury;

36. () Depressed moods;

37. () Anxiety

38. () Stress;

39. () Shock.

21. I note that particulars (p) and (r) are the same.

22. The plaintiff also provides extensive particulars about out-of-pocket expenses as follows:

“PAST

1. As a consequence of the injuries and disabilities sued upon and set out above, the Plaintiff (DOB: 13/05/1964) has incurred out-of-pocket expenses for general and specialist consultations, physiotherapy, and radiographic imaging.

2. The majority of these costs have been paid by either Medicare (Medicare number 2375891433) or the Plaintiff. The Plaintiff brings a claim for the value of those costs incurred to date for the treatment of her compensable injuries.

3. The Plaintiff also claims travel expenses to and from consultations with the abovementioned medical professionals and all other travel necessary for medical treatment in relation this [sic] claim including, but not limited to, the purchase of pharmaceutical treatments.

4. The Plaintiff needs to purchase on a periodic basis adult panty liners and/or adult nappies.

5. Particulars of the cost of the above will be provided once they become available.

FUTURE

6. The Plaintiff claims the cost of future medical and treatment expenses including attendance upon her general practitioner, specialist review, psychologist, physiotherapy and pharmaceuticals, including pain controlling medication and anti-inflammatory.

7. The Plaintiff estimates that these expenses will be in excess of approximately $20,000.0 and will include the following annually:

a. Attendances upon her general practitioner estimated at eight (8) consultations per annum at $80.00 per consultation.

b. Reviews by a Specialist estimated at two consultations per annum at $300.00 per consultation.

c. Consultations with a Psychologist / Psychiatrist.

d. Reviews by an Orthopaedic Surgeon estimated at one consultation per annum at $300.00 per consultation.

e. Intermittent physiotherapy for pain relief mobilisation estimated at twelve (12) sessions per year at a cost of $90.00 per session.

f. Medication estimated at $30.00 per week. (Mobic, Lyrica, Nurofen, Endep)

g. Adult panty liners at $10.00 per week.

h. Adult nappies at $10.00 per week.

i. Further radiological investigations estimated at $5,000.00.

8. The Plaintiff anticipates undergoing surgery to her coccyx and claims the cost of same, estimated in an additional amount of $25,000.00.

9. In the event of arthritic degeneration to any of the joints affected by the accident, the plaintiff also claims the cost of remedial treatment in relation thereto.

10. The Plaintiff wishes to rely on further medical evidence in relation to this head of damages and reserves her right to add to this list accordingly. Further particulars will be provided in due course.

23. The plaintiff’s claim for domestic assistance or attendant care commences with the passage particularly dwelled upon by the second defendant, paragraph 11, which I repeat for the purpose of completeness, as well as the subsequent paragraphs:

“PAST

11. Prior to the subject accident the Plaintiff was self-sufficient, independent and fully capable of carrying out the domestic duties in and around the household.

12. As a consequence of the injuries and disabilities sustained in the accident the Plaintiff has been unable to perform the bulk of the household chores and carry out her self-care needs.

13. Since the date of the accident to date the Plaintiff has been receiving domestic care and assistance from her family members, Mina Narouz (Son), Anton Narouz (Son), Med Narouz (Son) and Roes Kingi (Med’s fiancé).

14. From the date of the accident to date the Plaintiff has received the following assistance from Mina Narouz:

a. Washing clothes;

b. Putting clothes in the dryer;

c. Mopping;

d. Vacuuming;

e. Grocery Shopping;

f. Making the beds.

15. From the date of the accident to date the Plaintiff has received the following assistance from Anton Narouz:

a. Cleaning toilets;

b. Cleaning bathrooms;

c. Washing dishes;

d. Grocery Shopping;

e. Cooking (Breakfast/Lunch/Dinner);

f. Assist in dressing and undressing.

2. From the date of the accident to date the Plaintiff has received the following assistance from Med Narouz:

a. Vaccuming [sic];

b. Washing dishes.

3. From the date of the accident to date the Plaintiff has received the following assistance from Rose Kingi:

a. Dusting;

b. Cleaning the windows and glass doors;

c. Shines the mirrors;

d. Cleaning the backyard.

16. The Plaintiff has been restricted in her ability to ambulate or to perform the substantial bulk of the household activities for which she has had a need for assistance at approximately the following rates and periods:

(a) 16 hours per week from 3 December to about 31 March 2014;

(b) 12 hours per week from about 1 April 2014 to about 31 August 2014;

(c) 10 hours per week from about 1 September 2014 to date;

17. Doing the best she can, the Plaintiff believes that she has been in receipt of no less than six (6) hours of domestic assistance per week.

18. The Plaintiff brings a claim with respect to the past gratuitous domestic assistance received to date at the statutory rate.

FUTURE

19. The Plaintiff’s injuries and ongoing disabilities have continued to cause her significant levels of pain and discomfort. As a consequence of her injuries and ongoing disabilities, the Plaintiff has been unable to attend to her pre-injury domestic duties and self-care needs.

20. The Plaintiff therefore brings a claim for future need for combined domestic assistance and care at a rate of six (6) hours per week indefinitely in the future.

21. The Plaintiff brings this part of her claim based on the statutory rate. In the alternative, should the Plaintiff’s family members become unable or unwilling to continue providing the Plaintiff with the gratuitous assistance she requires, the Plaintiff brings the claim on a commercial basis at the rate of $40.00 per hour.”

24. A claim for non-economic loss is also included (see paragraph 18).

25. The plaintiff’s medical reports consist of clinical records kept by her general practitioner, of a very brief nature. In the time-honoured practice which has been the subject of adverse comment by the Court of Appeal on many occasions, I am left to interpret these reports as best I can. The plaintiff provides one medico-legal report by Dr Yuk Kai Lee dated 12 May 2017, as well as reserving the report of Dr John Stephen of 17 May 2017, which had been served by the defendant.

26. Dr Lee described the plaintiff’s accident as occurring when she was getting off a plane and slipped at the first step as it was raining at the time. He said that “her backside hit the steps” and that as she was wearing open shoes, she injured her toes when she fell, and the left foot became swollen. Officials put her in a wheelchair and she went home in a taxi. She saw a doctor the following day and the doctor ordered X-rays, but there were no broken bones. Her doctor prescribed Brufen and she was on walking sticks for two weeks (Exhibit A, report of Dr Lee, page 1). He noted that she had physiotherapy for both her feet and her back, as well as acupuncture. She was complaining she still had pain in her left leg which felt “hot” as well as pain in the back radiating down both legs. Sometimes she could not get out of bed. Coughing aggravated her back pain, as did prolonged sitting or walking. She had put on weight and become incontinent after the accident, both of which she blamed on these problems. Dr Lee diagnosed a back injury where the plaintiff hit her coccyx and back and a sprained left ankle. He recommended what he called “proper physiotherapy” for less than three months as well as hydrotherapy, adding that it was “important for her to remain active”.

27. Dr Stephens (whose report was also tendered by the defendant; see Exhibit 2) noted a significant prior history of injury not taken by Dr Lee, including a motor vehicle accident in 2000 where she injured her neck, shoulder, back and buttocks with pain that persisted until at least 2005 as well as a second accident on 29 March 2010 where she had ongoing neck and back pain as well as vertigo. She was also involved in an assault on 17 October 2010 which she said did not increase the level of her prior symptoms of neck and back pain. He noted that the plaintiff had seen her general practitioner with complaints of pain in the left foot and back as well as pain in both knees, although she had fallen backwards with her legs straight out in circumstances where her knees were not injured. He considered that the plaintiff suffered a bruise to the sacrum and possibly the left foot as a result of the fall as well as minor soft tissue injury to the low back in circumstances where she had pre-existing low back pain. There was no evidence of any ongoing serious injury to the low back either clinically or radiologically. The left foot was clinically normal on examination, as were both knees.

The evidence of the plaintiff

28. The plaintiff, who gave evidence through an interpreter, adopted the limited chronology prepared on her behalf, which included some history of prior injuries, including a fracture of her right elbow in 1999, an injury to her left wrist in 2000, a separate injury in 2000 to her neck, shoulder, back and buttocks in a motor vehicle accident, a further motor vehicle accident in November 2001 and again in 2010, and an assault in 2010. She gave evidence that after a hand injury in 2000 she left the workforce and at the end of the same year was involved in a motor vehicle collision but considered she had recovered from these conditions to lead a normal life as at the date of the accident. Unfortunately, her medical history, when explored in cross-examination, was much more complex.

29. The plaintiff described the accident she suffered as follows:

“Q. Did something happen to you on 2 December 2013?

A. INTERPRETER: Yes. Yes, I was coming - returning from Brisbane, and I slipped on my back.

Q. The accident where you slipped, was that while getting off an aeroplane?

A. INTERPRETER: Yes. Yes, I couldn't - I couldn't get up. They had to get the - me on a wheelchair, and take me up. And they gave me first aid at the airport.

Q. What did you slip on?

A. INTERPRETER: The steps. Okay, so, like, they put the mobile ladder onto the plane for people to get off and on the plane, on the first step.

Q. Are you describing to her Honour a set of mobile steps, wheeled to the door of the aeroplane so you could step on to the steps and then down to the tarmac?

A. INTERPRETER: Yes. Yeah, so it was the first step, and my back was on the door of the plane.

Q. What were the weather conditions like as you were proceeding down the steps?

A. INTERPRETER: It was raining heavily.

Q. The steps, I take it, were themselves wet?

A. INTERPRETER: Yes, of course.

Q. Apart from being wet with rainwater, was there anything else on the steps at the time you fell?

A. INTERPRETER: Only the water that I slipped on, and from all the pain I didn't know what was happening. I had strong pain.

Q. How were you feeling, Mrs Wahba, before this incident where you fell on the steps?

A. INTERPRETER: I was - I was good. And after that, my whole life changed.

Q. When you fell, do you recall what part of your body you landed on?

A. INTERPRETER: My leg swelled up, and my toes, and minor pain in my back, but then it was worse.

Q. When you fell, do you recall what part of your body you landed on?

A. INTERPRETER: So she is repeating, the legs, the toes and my back.

Q. You're describing the sensations of pain you were experiencing immediately after the accident. Is that correct?

A. INTERPRETER: Yes.

Q. What I'm asking you about is what part of your body did you land on when you fell?

A. INTERPRETER: Okay, so I landed on my behind.

Q. Your tailbone?

A. INTERPRETER: Yes. Okay, so I landed on my behind, with my both hands on to the floor, and my legs, like, went under me.

Q. Did you notice anything about your tailbone immediately following this incident?

A. INTERPRETER: So they gave me painkillers and CT scans, and then they said I have a problem in my coccyx.

Q. They being doctors you saw after the accident? Is that right?

A. INTERPRETER: Yes, of course. And I had a lot of physiotherapy.

Q. Do you recall how your coccyx was immediately after you fell on the steps?

A. INTERPRETER: I thought it was like I had a needle in my back, and it was hard for me to sit.

Q. How was your coccyx before this fall?

A. INTERPRETER: I never had a problem with - before.

Q. Can you describe to her Honour the way your left ankle was feeling immediately after this fall.

A. INTERPRETER: It was swollen, and I had to use - for two months, I was on crutches, and it was very painful.

Q. How was your left foot and toes immediately after the fall?

A. INTERPRETER: So I had also physiotherapy on my toes, and up until now I still experience pain. It's like burning and cramps - I get cramps at night.

Q. How did your left foot feel immediately after the accident?

A. INTERPRETER: It was swollen, and I took Nurofen.

A. WITNESS: Not Nurofen..(foreign language)..

A. INTERPRETER: Maybe ibuprofen.

Q. How was your left ankle immediately after the fall?

A. INTERPRETER: It was very painful, and even now, when I'm walking, it gives way.

Q. Did you have any problem in your left foot or left toes or left ankle before this incident when you slipped on the aeroplane stairs?

A. INTERPRETER: No.

Q. Did you have any sensations in the right knee immediately after you fell on the stairs?

A. INTERPRETER: Yes, it was the right and left.” (T 19 - 21)

30. The plaintiff went on to state:

“Q. How were your knees before this accident?

A. INTERPRETER: No, I had no problem. There was no problems with them.” (T 21)

31. The plaintiff returned home where she lived with her adult children, but she was in a lot of pain so the following day she went to her general practitioner where an X-ray was taken of her left foot. No other X-rays were ordered. She was given crutches by a friend which she used for four to six weeks. She was referred to physiotherapy and acupuncture. She said that she had this form of treatment to her left ankle and to her back as well as to her bottom. However, she was still so ill and unable to perform housework that “we didn’t even celebrate Christmas” as she was “very upset and tired” (T 23). She was taking a lot of medication including Panadeine Forte, Nurofen, Brufen, Celebrex, Voltaren, Targin and Panadol Osteo. She purchased some medication over the counter at the chemist and some on prescription.

32. In January 2014, the plaintiff consulted the same solicitors who had acted for her in the motor vehicle accident. She was told that there was a three year limitation period.

33. The plaintiff said that she continued to suffer pain in her back and in her legs which she described as “unbearable” (T 51). Over this period, she had put on a lot of weight and was seeing a dietician in order to obtain advice about this problem (T 25). She described herself as being unable to perform tasks and as being dependent upon her adult children:

“Q. What, if any, difficulties do you experience when you go shopping?

A. INTERPRETER: So picking up heavy stuff. Sometimes, I - I - I cry because other people come to help me lift heavy stuff.

Q. Who is it that helps you shopping?

A. INTERPRETER: So people I don't know if I need some - like, a box of Coke, they will help me to pick it up and put it in the trolley for me.

Q. I see. Do any of your children do shopping for you?

A. INTERPRETER: Ned.

A. WITNESS: Ned.

A. INTERPRETER: Ned.

Q. And when was it that your children first started going shopping for you?

A. INTERPRETER: Long time.

A. WITNESS: Yeah, maybe from this accident it happened,

A. INTERPRETER: From when the accident happened.

A. WITNESS: Yeah, and Antoun before he was - my son as well.

A. INTERPRETER: Sometimes because I can't get out of bed, it radiates down my leg.

Q. Were you receiving assistance with shopping before the Jetstar accident?

A. INTERPRETER: So Antoun used to go a little and - and now Ned.

Q. Does Antoun still go shopping for you?

A. INTERPRETER: Yes, he rings me. Before he comes, he rings me. If I need anything, he will get it for me.

Q. The extent, from your observations, to which Antoun shops for you these days, is it more or less than or about the same as he used to go shopping for you before the Jetstar accident?

A. INTERPRETER: It's more.

Q. And, doing the best you can, in the course of a typical week, how much more assistance does Antoun - specifically Antoun - provide for you with the shopping?

A. INTERPRETER: Just for shopping or‑‑

Q. Just for the shopping.

A. INTERPRETER: ‑‑for everything?

Q. Just Antoun. Just shopping.

A. WITNESS: Once a week maybe.

A. INTERPRETER: Once a week maybe.

Q. How much time does he spend extra this once a week?

A. INTERPRETER: I'm not sure how long time he takes.

Q. Do any of your other children these days go shopping for you?

A. WITNESS: Ned. Ned.

A. INTERPRETER: Ned.

INTERPRETER: Ned goes shopping for her once‑‑

THOMPSON

Q. And how regularly does Ned go shopping?

A. WITNESS: Maybe once a week.

A. INTERPRETER: Once a week.

Q. Did Ned used to go shopping for you before the Jetstar accident?

A. INTERPRETER: No, it was Antoun all the time.

Q. I see. Putting aside the shopping, do you have any other difficulties around the house these days, apart from the bathrooms?

A. INTERPRETER: Yes, and - and the - and the windows, and the grass - mowing the lawn.

Q. Do you clean your own windows these days?

A. INTERPRETER: No, I can't.

Q. Did you used to clean them before the Jetstar accident?

A. INTERPRETER: Yes, I used to do - I used to do a bit.

Q. How regularly‑‑

A. INTERPRETER: But now, I can't do it at all.

Q. Who cleans the windows these days?

A. INTERPRETER: My daughter‑in‑law.

Q. Your daughter‑in‑law? And what's your daughter‑in‑law's name?

A. INTERPRETER: Rose.

Q. And how regularly does Rose clean the windows at your home?

A. INTERPRETER: So maybe once a month or once every two months.

Q. I want to go back to bathrooms for one moment. How regularly is your bathroom cleaned these days?

A. INTERPRETER: So Antoun does the bathroom all the time, but when - if he's sick, Ned will do it.

Q. And how regularly is that?

A. INTERPRETER: I don't really count the days. Maybe once a week or maybe every ten days.

Q. Do you still cook? I withdraw that. Do you cook?

A. INTERPRETER: So now I'm not cooking maybe once a week, but I buy the ready meals from Woolworths you just put in the microwave.

Q. Did you used to cook before the Jetstar accident?

A. INTERPRETER: Yes - yes, I used to do a bit.

Q. How regularly did you used to cook?

A. INTERPRETER: So like - we - we - I cook maybe three times a day, but now I'm only doing maybe the dinner.

Q. Why is it that you no longer cook to the same extent as you used to?

A. INTERPRETER: Now because our food takes a lot of preparation, and it's because of my bad back.

Q. Who does the cooking these days?

A. INTERPRETER: Ned does all the time - barbecues, and yesterday he got me take‑out, like spinach and - and cheese.

Q. How regularly does Ned cook these days?

A. INTERPRETER: So one day he will have a barbecue, the next he would get - he would cook something. So every week he has a barbecue, and sometimes he cooks at his house and they call me to go and eat there.

Q. Now, you used to cook three times a day, I think you said.

A. INTERPRETER: Yeah, like a breakfast, lunch and dinner, and - and - and now, I only cook either lunch or dinner, and I have leftovers till the next day.

Q. Do any of your children now do the cooking that you would have done before the Jetstar accident?

A. INTERPRETER: So Ned - Ned does as much as he - he can, and sometimes we eat out.

Q. Apart from Ned, what about the other two children, Mina or Antoun?

A. INTERPRETER: Mina doesn't know how to cook.

Q. Who cleans the floors at your home these days?

A. INTERPRETER: Mina does the vacuuming and mopping, and sometimes Ned does vacuuming, and Antoun, like - they share the chores.

Q. Who used to do the vacuuming before the Jetstar accident?

A. INTERPRETER: Antoun used to do the vacuuming, and I used to do a little bit.

Q. How much vacuuming did you used to do before the Jetstar accident?

A. INTERPRETER: I used to do it, but not every day. And now, when I've got no‑one at home I actually - I have to do the vacuuming while I'm sitting.

Q. Is any mopping done at your home?

A. INTERPRETER: Once every two weeks, and the kids.

Q. Do you do any mopping?

A. INTERPRETER: No - no, and sometimes the floor is dirty, and if no‑one does it, it stays dirty till the next day.

Q. Why do you not do the mopping?

A. INTERPRETER: Because I'm - I'm - I'm in pain sometimes. I'm - two months I'm in bed.

Q. How much time did you used to spend each week mopping the floors before the Jetstar accident?

A. INTERPRETER: I can't remember exactly. I'm - feel now like - I'm very upset. I feel like I'm disabled.

Q. Are you able to give her Honour any assistance as to how frequently before the Jetstar accident you used to mop?

A. INTERPRETER: I used to do a lot, but now I sit on the chair as if I'm disabled. Even - even my - I'm - I'm very - like, my psychological state is not good either.” (T 45 - 48)

34. The plaintiff went on to say that her children were obliged to do the mopping about three times a week (T 49) which took approximately 10 to 15 minutes. The plaintiff even had difficulty with dressing (T 49) and relatively simple tasks such as washing the dishes (T 49). There was a little garden and a lawn at the back of the house and it was her son’s job to mow the lawn, although sometimes paid lawn mowing was obtained. The plaintiff agreed that she had not cleaned up the backyard prior to the accident (T 50).

35. The plaintiff concluded her evidence in chief by saying that the pain in her back was so bad that “it makes me sometimes scream” (T 51). She also considered her incontinence was due to the accident (T 52).

The plaintiff’s cross-examination

36. A very different picture of the plaintiff’s health arose from the cross-examination.

37. The plaintiff was shown the statement of particulars (T 54) and questioned about her claim that her whole life had changed and that a significant component of this change was depression, anxiety and shock. The plaintiff said she was stressed because “my back is finished” (T 55). She was taken to what is currently paragraph 11 in the particulars, namely the statement that prior to the accident she was self-sufficient, independent and fully capable of carrying out domestic duties in and around the household and agreed that she did not do all, or adding that she “used to do some”, a statement she qualified by saying “I used to do a bit, not all that” (T 55). Now, she said, “I only do a little bit” (T 55). However, she went on to state that “before the fall I would do a lot” (T 56).

38. The following was put to her in cross-examination:

“Q. And are you sure sitting here that that evidence that you gave earlier today that you were good before the accident and after the Jetstar accident your whole life changed is truthful evidence?

A. INTERPRETER: Yes, I was - I was a little bit in pain before, but not to the extent that I am in now.” (T 56)

39. However, it was put to her that she had told Dr Watson on 5 July 2013 that she had lower back pain which could be “of electric quality” which the plaintiff agreed with by saying that it was “from the Jetstar”. When it was pointed out to the plaintiff that she had seen Dr Watson in July 2013, which was five months prior to the accident, she attempted first to say that she had never said this to Dr Watson at all, and then, after the process of medical reports was explained to her, said that the “date is wrong” (T 62).

40. Mr Lloyd put to the plaintiff:

“Q. Ms Wahba, I want to suggest to you that when you saw Dr Watson in July 2013, you also told him that your whole life had been changed by the motor vehicle accident in March 2010. That's true, isn't it?

A. INTERPRETER: Firstly, as you can see, my English is not 100%. Maybe when he was asking me, I was trying to explain to him that I had a bit of pain in the back, and I wasn't happy from what happened to me.

Q. Did you tell Dr Watson in July 2013 that your whole life had been changed by the motor vehicle accident in March 2010?

A. INTERPRETER: I can't remember. I can't remember, and I don't know where all this happened. If I told him something like I'm not happy, it's because I have pain in my back.” (T 62)

41. Mr Lloyd put to the plaintiff that she was lying and she became angry:

“LLOYD

Q. The lie, I suggest to you, Ms Wahba, is that you know that you were saying that your whole life had changed for the worse as result of your March 2010 motor vehicle accident?

INTERPRETER: Sorry she - sorry, she's just going on. It - it has changed her life because there's a lot of things now she can't do. Like, she can't lift her grandchildren. She can't lift the shopping. She - there's program.

WITNESS: Stop me to do this as well but..(not transcribable)..

INTERPRETER: So she stopped - she was stopped from or she ceased doing an Arabic program on - on the radio.

WITNESS: So stopped me a lot, that's why. It stop me to‑‑

LLOYD

Q. I also want to suggest to you that you told Dr Watson in July 2013 that because of your motor vehicle accident in March 2010, one of your sons had to perform just about all of the household duties.

A. INTERPRETER: He used to some but not everything.

Q. You told Dr Watson that your youngest son performed just about all of those duties and I suggest you did that because that was the truth.

A. INTERPRETER: So at the beginning, when I first had the accident, I couldn't do‑‑

A. WITNESS: Much.

A. INTERPRETER: ‑‑much. And then after having physiotherapy, I started to improve and then the time that I was improving, I had this fall.

Q. Ms Wahba, I'm asking you about a consultation that occurred in July of 2013. You know that that's over three years after your March 2010 motor vehicle accident.

A. INTERPRETER: So the year must be wrong. The date or the year.

Q. And you also told Dr Watson in July 2013, I suggest that you'd gained about 20 kilos in weight as a result of your motor vehicle accident.

A. INTERPRETER: Yes, and now I've put a lot more. And now I've become diabetic from the excess weight.

Q. And I suggest that you also saw Dr Watson in September 2013 and you'd told him about your hand numbness and tendency to drop things.

A. INTERPRETER: Yes, I did get - I used to get numbness and he examined me and he said there's nothing.

Q. But you were complaining about numbness and an inability to keep hold of things; loss of grip strength.

A. INTERPRETER: Yes, the left - the left is weak. I said that from before.

Q. And that weakness was a significant problem as at September 2013 with you performing any significant domestic work, true?

A. INTERPRETER: In my hand?

Q. Yes.

A. INTERPRETER: Yes, up until now, my hand is weak.

Q. And you also told Dr Watson in September 2013 was that that your biggest problem - might want to translate that part of it - was that if you stood for an hour or so, you would experience pain in your neck, head, shoulders, and lower back?

A. INTERPRETER: So what - why is it everything that you're mentioning is 2013?” (T 63 - 64)

42. It was explained to the plaintiff that her health before the accident was important and she was requested to answer the question. Mr Lloyd put to her:

“Q. Ms Wahba, I'll ask the question again: you also told Dr Watson in September 2013 that perhaps your biggest problem was that if you stood for an hour or so, you would experience pain in your neck, head, shoulders and lower back; that's true, isn't it?

A. INTERPRETER: That was at the beginning with the accident.

Q. What accident are you talking about?

A. WITNESS: The car accident but in 13 - I don't know.

A. INTERPRETER: Saying that my conversation with Dr Watson was limited.

A. WITNESS: Yeah.

Q. You told him the things that I've just asked you about; about your difficulties with standing for longer than an hour.

A. WITNESS: No, that's wrong. Sorry.

A. INTERPRETER: She say it's wrong.

Q. And I suggest you told him that at a time which was about three and half years after your motor vehicle accident.

A. INTERPRETER: I may have said it at the beginning when I had the accident.

A. WITNESS: After three years, he's not my family doctor.

A. INTERPRETER: Why would I talk to him? He's not my family doctor.” (T 64 - 65)

43. These answers are a significant blow to the plaintiff’s credit. In her chronology she acknowledged seeing Dr Watson both in 2010 and on the date the subject of his report.

44. The plaintiff was similarly evasive in relation to the report by occupational therapist, Belinda Moylan, after a home visit on 13 August 2013, denying that Ms Moylan had visited her in 2013 (T 66) and insisting, even after being shown the report, that there was “a mistake with the year” (T 67). When shown the report of the occupational therapist, which recorded statements by the plaintiff that the pain was “very strong, very bad” (T 77), the plaintiff replied:

“Q. Your Honour, I'm reading - for the benefit of my friend - from 8.2. You told the occupational therapist who saw you that since the motor vehicle accident your pain was very bad and it's coming very strong, very bad. That's right, isn't it?

A. INTERPRETER: Yes, that's no more. After the accident the pain is very bad and then afterwards it starts to get bit better.

Q. You told the occupational therapist about the pain being very bad in August 2013, almost three and a half years after the accident.

A. INTERPRETER: The pain comes and goes, and in fact this date in August doesn't go into my mind.

Q. Whatever the position, just focus on this question, please: there was no change in your condition between August 2013 and the period before the Jetstar accident in December. True?

A. INTERPRETER: No, of course - no, of course there is. So all the CT and the doctors are all - all wrong, and the pain that I have, up until now.” (T 76 -77)

45. The plaintiff next sought to explain the inconsistency by saying that she was “not denying there wasn’t pain, but the pain at the moment is a lot stronger” (T 77). It was put to her that she told the occupational therapist she could not carry anything heavier than 2kg, and she responded that she was unable to remember, adding “I can’t remember everything” (T 78). She went on to deny a series of statements she is recorded to have made, including a statement on page 90 of the occupational therapist’s report that she had been in persistent pain since the motor vehicle accident in her neck, lower back and right knee (T 78) and was unable to perform tasks around the house (T 78).

46. The plaintiff next claimed that she had started to improve after the motor vehicle accident and was “doing 60%” of her household chores at about that time (T 79). However, the occupational therapist’s report was prepared only three months before the accident the subject of these proceedings.

47. The plaintiff also challenged the accuracy of statements she was asserted to have made concerning grocery shopping, cooking and other household tasks (T 79).

48. Mr Lloyd put to the Plaintiff:

“Q. Now, Ms Wahba, I just want to make it clear: you told her Honour on your oath on Monday that before the Jetstar accident you cooked maybe three times a day but after the accident it was only maybe once a day – maybe dinner.

A. INTERPRETER: What I meant to say was I used to cook three times a day but before the accident but after only one time.

Q. And what you are clearly trying to tell her Honour is that your ability to cook meals because of the Jetstar accident had gone down from three times a day to one time a day.

A. INTERPRETER: Yes, and when - when I cook, I sit on a high chair - kitchen chair.

Q. That's not responsive to what I asked you Ms Wahba. I didn't ask you anything about what you sat on when you were cooking.

A. INTERPRETER: Yes. I answered your question. I said yes, I used to cook three times and now I cook once.

Q. The truth is, Ms Wahba, that what you told an occupational therapist in August 2013 about four months before the accident was that you were only cooking every few days.

A. WITNESS: Few days.

A. INTERPRETER: A few days.

A. WITNESS: I am, but how many times a day? So it's different.

A. INTERPRETER: Before I would cook three times a day, but now probably every two days I would cook once.

A. WITNESS: In one day I cook three times.

A. INTERPRETER: So before in - in one day I would cook three times‑‑

A. WITNESS: Yes, in one day. Now‑‑

A. INTERPRETER: ‑‑in one day, but now it's only once a day.

Q. Well, I want to suggest to you, Ms Wahba, that when you told her Honour that before the Jetstar accident you were cooking maybe three times a day, that evidence was false.

A. INTERPRETER: If I said three times‑‑

A. WITNESS: A day.

A. INTERPRETER: ‑‑a day‑‑

A. WITNESS: Three times a week.

A. INTERPRETER: Three times a week. Three times a week I would cook once every day.

Q. Now, you also have given some - sorry, I withdraw that. Is that your answer to my question?

A. WITNESS: Yes.

Q. Is that all you want to say in answer to that question, Ms Wahba? I don't want to cut you off.

A. INTERPRETER: Yeah. Can she explain?

HER HONOUR

Q. Yes, you can explain. That's why you're being invited to. You're being invited to explain.

A. INTERPRETER: Yeah.

A. WITNESS: Okay. Yeah, all right. Before airport or Jetstar accident if I was cooking, like, three days, I tell the lady before - because that long time ago now I can't remember what I said, really. If I said three days a week, so I'm meaning before I was cooking like - as you - as one, you know, cooking breakfast, lunch, dinner. So it was three times a day, this is what I meaning, for three days a week. Yes?

Q. All right.

A. WITNESS: And now, if I cooking, like, three times - sorry, three days a week, I cooking one time a day, only lunch or dinner and the same for next day, really, so this is the different.

LLOYD

Q. You see, Ms Wahba, isn't this the problem with what you just told the judge in answer to that question: you didn't - I haven't put a proposition that you told the occupational therapist about cooking for yourself three times a day, have I?

A. WITNESS: Three times is a week, before. But every day like what I said now -I prepare breakfast, lunch, dinner, and I clear after. Now, I can't do it. I do maybe once a day cooking - three times a day or whatever, and most of the cooking now I buy from what you call, Woolworths food and I heat it in the microwave and oven and maybe I'll cook my food one day - so this is exactly what happened.

Q. And you've just answered the question I asked you without the interpreter. You understood my question perfectly well, didn't you?

A. INTERPRETER: Yeah. I understand your question and I answer.” (T 79 - 81)

49. The transcript does not do justice to the combative way in which the plaintiff responded to Mr Lloyd’s questions. Although Mr Thompson in his submissions put to me that the plaintiff “conceded pre-existing disability” and gave “no embellishment” (outline of submissions page 5, paragraph 2(d)), that is not what these extracts from the transcript demonstrate. This was an angry and at times belligerent plaintiff who was not prepared to make concessions where appropriate, and on a few occasions when she did, withdrew the concessions shortly afterwards.

50. The plaintiff was asked why she had not provided this information to Dr Lee (T 83). She was also asked why she had told Dr Watson she had gained about 20kg in weight when this was not the case. The plaintiff was asked about her claim of weight gain as follows:

“Q. You see, Ms Wahba, I want to suggest to you that your weight in around the middle part of 2014 was about 90 kilos.

A. INTERPRETER: That's after the accident and then it was increasing.

Q. No, just at about mid‑2014 - this is page 125, your Honour - your weight was about 90 kilos, wasn't it?

A. INTERPRETER: I don’t remember what weight - all - all I know is that last time I went - I was at the doctor's, she told me, "Since the date of the accident, your weight was 84 kilos, and now it's 96."

Q. And I want to suggest to you that your weight of about 90 kilos then was about the same as your weight before the Jetstar accident.

A. INTERPRETER: No, that's impossible.” (T 94)

51. The plaintiff was also cross-examined about the treatment she received from her general practitioner where most of her foot complaints related to suffering from plantar fasciitis and she was advised to purchase orthotics. She was unable to explain why it was, if she was in so much pain, that her next visit, after the 4 December 2013 visit, was not until 20 May 2014, nearly six months later. It was during this period (namely on 29 January 2014) that the plaintiff had consulted solicitors (there are other lengthy periods of time during which the plaintiff appears to have no treatment, such as the period between 21 September 2015 and 5 April 2016, 7 April and 11 June 2016 and for several months prior to 11 January 2017).

52. On the occasions of her visits to the general practitioner, the plaintiff is recorded as only having referred to injuries to her foot. She was unable to explain why there was no note made of her complaint of pain in her back beyond saying that he “just concentrated on my leg” (T 93). She denied that the problems she complained about in relation to her right foot to Dr Fashka were caused by heel plantar flexion requiring orthotics and said it was as a result of the fall (T 93).

Conclusions concerning the plaintiff’s evidence

53. The plaintiff’s claim that she has very significant restrictions on her ability to perform domestic activities and that these problems arose from the Jetstar accident is evidence which the defendant submits is false for the following reasons:

1. It is inconsistent with the history that she gave to Dr Sean Watson (compare his account of her statements at Exhibit 1, pages 97-98 with the evidence set out above). Even the reference to her “whole life changing” was an allegation that she had made in relation to her previous accident.

2. Similarly, when the plaintiff gave her medical history to the occupational therapist (Exhibit 1, pages 79-93), she not only had the benefit of an interpreter present, but also her son Antoun (whom I note was not called). She can have been in no doubt as to the nature and extent of the questions being put to her.

3. The inconsistent history the plaintiff gave to Dr Sekel (Exhibit 1, page 38).

4. The inconsistent history she gave to Dr Walker (Exhibit 1, page 69).

5. The inconsistencies between the notes kept by the plaintiff’s medical practitioners and her statements as to what she actually told them.

54. The New South Wales Court of Appeal has repeatedly warned trial judges to exercise caution when placing reliance upon histories taken by medical practitioners (see Gulic v O’Neil [2011] NSWCA 361 at [24], citing six previous decisions of the New South Wales Court of Appeal on this issue). I have taken those warnings into account. I have also noted the New South Wales Court of Appeal’s warnings as to the importance of exercising caution where the patient is having to communicate with the medical practitioner through an interpreter and where cultural factors may also play a role (Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186).

55. I make the following general observations as to the evidence in question:

1. Some of the specific examples of injuries given by the plaintiff (such as her knees and hands) are not only absent from reports by her doctors, but were also not listed in her otherwise comprehensive statement of particulars.

2. A significant part of the plaintiff’s complaints appears to relate to a claim for psychological harm for which there is no evidence.

3. Some of the evidence, such as the claim that the plaintiff’s weight increased following the Jetstar accident, was false. She had made the same complaint to Dr Watson about the 2010 motor vehicle accident in July 2013 (Exhibit 1, page 98).

4. The medical history given to Dr Lee by the plaintiff for the purpose of his report was conceded to be inadequate by Mr Thompson.

5. The plaintiff’s combative responses in the witness box in which she challenged the accuracy of the reports and the ability of the doctors to take notes of what she had said do not reflect well on her demeanour as a witness.

The relevant principles for determining the credit of a witness

56. Courts should exercise great caution in arriving at findings that a witness has lied to the Court. Courts have been known to be critical of judges for even permitting the putting of such a proposition to a witness. I have carefully taken into account all of these considerations and, in particular, the fact that the plaintiff was not communicating in English but in her native tongue.

57. Attacks on the credibility of a witness may be made on a number of bases, which can be summarised as follows:

1. Where there is independent evidence that a person has made an inconsistent statement on an issue material to the case, that may be evidence of a lie: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 at [39] (under the heading “admissions by conduct”). In the present case, where the statements in question have been to medical practitioners and an occupational therapist, caution must be exercised, but there is a consistency in the misstatements of the plaintiff which is of particular note.

2. Where evidence is led to rebut what is said and a court is asked to compare the competing versions, a court may make credibility findings accordingly.

3. Where evidence is asserted to be unsatisfactory because of unpersuasive claims by a witness to be unable to remember (R v Logue (NSW Court of Criminal Appeal, 31 March 1994, unreported), per Gleeson CJ), that may require an examination of the manner in which the evidence has been presented, such as repeated failures to answer, belligerent responses, or a witness’s demeanour generally.

58. I am conscious of the limits to which observations of performance in the courtroom by a witness may be of limited assistance, and I note the observations of Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 at 617 that “the value of the comparison of evidence with known facts is worth pounds of demeanour”.

Conclusions

59. While I accept the plaintiff fell and was rendered assistance, her subsequent evidence of injuries and disabilities depends largely upon her credit, given the absence of objective investigative corroborating evidence.

60. Perhaps the plaintiff’s greatest difficulty is the absence of medical evidence to support her case. There is only the report of Dr Lee, and the omissions in the history given to Dr Lee (which Mr Thompson concedes are such as to render the report largely valueless) are significant.

61. By comparison, Dr Stephen was given a full history by the defendant’s representatives. His conclusions were as follows:

1. The plaintiff suffered no significant injuries beyond bruising and a soft tissue injury. Her pre-existing mechanical back pain was probably accentuated for some months after the fall, but this was the highest her claim could be put (paragraph 6.3).

2. The plaintiff requires no further treatment (paragraph 6.6) and no domestic assistance (paragraph 6.9).

62. The plaintiff’s credit is also relevant to the issue of causation. The plaintiff’s claim for loss of a chance to bring a claim requires consideration of the kind of claim she would have brought.

63. As to the observations of Dr Stephen concerning domestic assistance, I am conscious of the preference for there to be a report from an occupational therapist rather than reliance upon a surgeon of Dr Stephen’s qualifications.

64. This brings me to the next difficulty that the plaintiff faces in relation to the quantification of her claim, namely the absence of an occupational therapist’s report. While one of her sons was called by telephone to give evidence, his evidence was materially different to that of the plaintiff on a series of vital issues.

The evidence of Mr Narouz

65. Mr Narouz, one of the plaintiff’s sons, gave evidence (T 108ff) about the degree of assistance he provided to his mother until moving out from her home approximately six months to a year prior to these proceedings (namely, in either late 2016 or early 2017). He described his mother before the accident as “just happy, just very energetic and just always doing everything for us” (T 109), whereas after the accident she “couldn’t go anywhere near as much as what she used to” (T 109).

66. In chief, Mr Narouz was asked:

“Q. Had your mother suffered any previous accidents of which you're aware?

A. What? Am I aware of any previous accidents?

Q. Yes.

A. To be honest, I'm not sure. I don't know. I can't answer that. I wouldn't know. I think so. I'm - I'm not sure.” (T 110)

67. He was definite that his mother had performed all of these tasks:

“Q. Were you providing any assistance to your mother before this event concerning the alighting of the plane?

A. No - no. Not - not just for the obvious ones, like cleaning my own room and stuff when I was living there, but no. She'll still be doing all the cooking, the cleaning. She'll be doing most of it.” (T 110)

68. He described what he was doing after the accident as follows:

“Q. Between the time of that accident and when you moved out about six to 12 months ago, how often were you assisting your mother?

A. I would go there probably once, maybe twice a week and give her a hand with some of the cooking. We'll cook food, take it over. I'll do some of the grocery shopping for her. I'm more of the cook side. My partner was more of the garden, inside maintenance.” (T 110)

69. He said he would spend “a good couple of hours every time I’m over there” (T 110) and that he visited roughly twice a week.

70. However, in cross-examination, Mr Narouz stated that he knew nothing about his mother’s motor vehicle accident in 2010:

“Q. Do you remember that your mother had a motor accident in the year 2010?

A. Do I remember? Could be. I'm - I don't actually remember specifically, no.

Q. But do you‑‑

A. She could have.

Q. I see. Do you remember that your mother had an incident where she was assaulted at Mounties in October 2010?

A. At where, sorry..(not transcribable)..

Q. At a place called Mounties.

A. In 2010?

Q. Yes.

A. No, I don't remember.

Q. Do you remember that your mother had an experience sometime around about 2007 - or sometime around then - where there'd been a home invasion?

A. Yeah, definitely.

Q. And do you remember an‑‑

A. And the reason - sorry, if I could just say - the reason why I remember that is because I was in - in the middle of all that and that still - that still sort of stuck with me and it probably will stick with me for life.

Q. And do you remember that your mother had a motor accident back in the year 2000?

A. No. I'm not going to remember that far back with something like the car accident..(not transcribable)..

Q. Don't take this as a criticism, Mr Narouz, but it's right, isn't it, that your memory about each of the accidents and incidents that your mother has, as you sit there today, is not particularly good, is it?

A. It's definitely good with the ones that are most recent, yeah. So in 2010, 17(as said) years ago - what was the - what was - I didn't even..(not transcribable)..I don't - I don't recall. Again, she could have told me, definitely. I don't have the best memory, but definitely with - with recent events, something that's happened recent or something that I'm really heavily involved in, I do remember.

Q. Well, the Jetstar accident was getting up toward almost four years ago, wasn't it?

A. Yeah, it's not - it's not - it's not - it's not ten years ago, though, is it?

Q. The motor vehicle accident I've asked you about was in March 2010. That's not ten years, is it?

A. Sure, so 2010 - seven years? Seven years is a lot longer than four years.

Q. Is it right that you say to her Honour that until I asked you about it, you weren't sure that you'd ever been told about that accident?

A. What was that, sorry?

Q. Is it right that you said to her Honour, until I asked you about that motor accident, that you weren't sure that you ever knew about it?

A. Who asked me about that, sorry? You're..(not transcribable)..ask me?

Q. I asked you about whether you knew that your mother had been in a motor accident in March 2010, and I thought you said to her Honour you weren't sure that you knew that.

A. Okay.

Q. Is that right - you didn't know about that, or you weren't sure that you knew about that motor accident, until I asked you about it?

A. ..(not transcribable)..I was probably unsure, only due to the fact that she was the first person I spoke to, and didn't really know what this whole conversation was going to be about.” (T 112 - 113)

71. Unlike his brother Antoun, Mr Narouz was not present when the occupational therapist attended the plaintiff’s home in August 2013 (T 214). He did not know that this had occurred.

72. Mr Narouz acknowledged quite frankly that the plaintiff needed all of the help that he had identified because of the other accidents:

“Q. What I want to suggest to you, Mr Narouz, is that when you've told her Honour today‑‑

A. Yep.

Q. ‑‑about the help that your mother has needed, you say, after the accident on Jetstar, that the reality is that she needed all of the help that you've identified because of the other accidents.

A. Okay.

Q. And she needed that help before the Jetstar accident.

A. Okay.

Q. What do you say about that?

A. She probably did need the help. She probably did get the help. She probably got it through my brother.” (T 114 - 115)

73. Mr Narouz went on to make similar admissions at T 116 that the plaintiff was significantly impaired in her ability to perform work around the house before the Jetstar accident.

74. Mr Antoun Narouz was unavailable for cross-examination by telephone (T 117).

The quantum of the lost claim

75. This brings me to a consideration of the quantum of the claim which is the lost opportunity. I will first set out the plaintiff’s schedule of damages under the Civil Liability Act and second under the common law:

Plaintiff’s date of birth: 13 May 1964

Age: 53 years

Date of Jetstar accident:

2 December 2013

Time since Jetstar accident:

3 years 49 weeks (205 weeks)

Further life expectancy:

35 years

Multiplier for 35 years of further life:

876.6* or 1,138.0**

Section 16 Civil Liability Act lump sum:

$612,500

Present Attendant Care Services (Section 15 CLA)

$30.15

Attendant Care Services (at 22/11/14)

$28.87

* 5% tables

** 3% tables

1) Non-economic loss (20%) (CLA):

$ 21,000

2) Past out of pocket expenses:

$ 5,000

3) Future out of pocket expenses:

$ 5,000

4) Past need for domestic assistance:

3 Dec 13 – date x $28.87 x 8 hours

$ 47,347

5) Future need for domestic assistance:

- 35 years x $30.15 x 8 hours

$245,168

TOTAL

$323,515

1) General damages:

$ 50,000

2) Interest on general damages:

$ 4,000

3) Past out of pocket expenses:

$ 5,000

4) Interest on pats out of pocket expenses:

$ 500

5) Future out of pocket expenses

$ 10,000

6) Past need for domestic assistance:

3 Dec 13 – date x $35 x 8 hours

$ 57,400

7) Interest on damages for past domestic assistance:

$ 6,900

8) Future need for domestic assistance:

- 35 years x $40 x 8 hours

$364,160

TOTAL

$497,960

76. The second defendant’s schedule of damages is as follows:

CLA $	CL $
Non-economic loss / general damages (including interest)	Nil	$10,000
Past out of pocket expenses (for Common Law case – including interest) (say)	$500	$500
Future out of pocket expenses	Nil	Nil
Past domestic assistance / Griffiths v Kerkemeyer	Nil	Nil
Interest on damages for past domestic assistance / Griffiths v Kerkemeyer	Nil	Nil
Future domestic assistance / Griffiths v Kerkemeyer	Nil	Nil
Sub total	$500	$10,500
Less unrecoverable solicitor/client costs of action against Jetstar	$3,500	$3,500
Sub total	Nil	$7,000
Discount for the lost chance (40%)	n/a	$2,800
Total	Nil	$4,200

77. Neither party addressed me, in relation to damages at common law, as to any claim for interest on damages or for aggravated compensatory damages.

78. Before determining the quantum of damages, I must first set out my findings in relation to which of the two statutory regimes should be applied.

Whether the Civil Liability Act applies

79. In Arefin v Thai Airways International Public Company Limited, the Court held that the plaintiff’s claim was governed by the Civil Liability Act with its limitations on non-economic loss and home care assistance in that its relevant provisions were adopted by the Commonwealth in the Act (Chapter III of Schedule 5). Sorby DCJ rejected the plaintiff’s argument that the damages were to be assessed according to common law principles and that the New South Wales legislation would have no application as to damages or costs.

80. Both parties to the litigation accepted that the provisions of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929 (“the Warsaw Convention”), as adopted by the Act, means that the law was one of strict liability and proof of negligence was not required. The question was one of the damages regime which applied.

81. The Warsaw Convention has the force of law in Australia pursuant to s 25K of the Act. Sorby DCJ concluded that because s 28 was in terms consistent with Article 17 of the Warsaw Convention, there was no relevant difference in the approach to s 28 and claims under the Warsaw Convention.

82. After considering Povey v Qantas Airways Ltd (2004) 223 CLR 189 and an argument that damages were procedural in nature, Sorby DCJ noted the provisions of s 80 Judiciary Act 1903 (Cth) and held:

“13. I am satisfied on the basis of the two authorities cited that the Carriers’ Act picks up the Warsaw Convention relating to liability of airlines in the advent of passenger injury and further provides for damages to be paid, as capped applying common law principles. I am further satisfied that pursuant to s 80 of the Judiciary Act, the Carriers’ Act does not provide any legislative system for the assessment of damages and is “insufficient to carry then into effect” (the laws of the Commonwealth) or to provide “adequate” remedies. As a result this Court in NSW has jurisdiction through the Civil Liability Act which modifies the common law, unless inconsistent.”

83. His Honour had the following to say about the issue of inconsistency:

“14. Mr Sternberg submitted that where State laws (here the Civil Liability Act NSW) have the effect of amending or detracting from the operation of a federal enactment, (here the Carriers’ Act), “they cannot be picked up by ss 79 and 80 of the Judiciary Act”.

15. It was Mr Sternberg’s submission that the Carriers’ Act provided “a capable scheme, both for liability and for insurance of airlines to ensure they could meet their liabilities under the Commonwealth scheme embodied in the Carriers’ Act. S 36 of the Carriers’ Liability Act provides:

“Subject to the next succeeding section, the liability of a carrier under this Part in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury,” (underlining added)

16. Mr Sternberg submitted that in The Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642, the High Court considered the natural meaning of damages “in respect of an injury”. In their joint judgment, Deane, Dawson and Toohey JJ said this at 655-656:

“The phrase ‘damages in respect of that injury’ in s 8(1)(b) is clearly a reference to ‘damages in respect of injury to a worker’. The natural meaning of the expression is, therefore, damages payable to a worker and assessed by reference to his injury.”

17. He said that as the NSW Civil Liability Act created a “scale” for the award of damages for non-economic loss (s 15 of that Act) in respect of an injury, it was inconsistent with s 36 of the Carriers’ Act and to the extent inconsistent, the Carriers’ Act, (and therefore unfettered common law) should apply in determining Mr Arefin’s damages. However, in my view the Carriers’ Act, anymore than the Warsaw Convention, does not provide for a mechanism or system of the assessment of damages and without such, the NSW Act, to the extent that it modifies the common law by imposing thresholds and caps is not inconsistent with the Carriers’ Act.

18. I conclude that the Civil Liability Act (NSW) is what I must apply in the assessment of the Plaintiff's damages as a result of his injuries he suffered on 7.12.04.”

84. Although not referred to in his Honour’s judgment, a consistent approach was taken in McKenna v Avior Pty Ltd [1981] WAR 255. A claim was made under the Act, pursuant to s 35. The Court held that the principles for assessment of damages for fatal accidents applied and that the State legislation regulated the award of damages for claims of that nature and applied to the claim under s 36 of the Act.

85. More importantly, the New South Wales Court of Appeal has applied the Civil Liability Act provisions in relation to damages in Pel-Air Aviation Pty Ltd v Casey. In so doing, they followed the approach taken by the trial judge to which no objection had been taken. Mr Lloyd, who was junior counsel in those proceedings to Mr Meagher SC (as His Honour then was), informed the Court that no point was taken with the method of assessment of damages.

86. That would not, however, have prevented the Court from enquiring into this issue, particularly since the appeal from Sorby DCJ’s decision in Arefin proceeded to hearing (although it was settled on or shortly after the day of hearing), which would mean that the issues raised in an unreported decision of the District Court were not unknown to the Court, or for that matter to the parties. If a real issue as to jurisdiction suggests itself to the Court it must be addressed, even if the point is not taken by a party: SAS Trustee Corporation v Rossetti [2018] NSWCA 68, citing Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employees’ Association (1906) 4 CLR 488; Cockle v Isaksen (1957) 99 CLR 155.

87. As the Court of Appeal has noted in SAS Trustee Corporation v Rossetti, the questions of jurisdiction and relevant legislation are not merely matters for the party but for the court. If I assume that this was done, and if the Court of Appeal was satisfied with this approach, then Pel-Air Aviation Pty Ltd v Casey may well amount to stare decisis on this issue, although by omission rather than express statement.

88. Is there in fact inconsistency between s 28 of the Act and the damages regime in the Civil Liability Act? The question of inconsistency arose in Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90, where the Court stated at [174]-[195]. In view of Mr Thompson’s insistence that this was the central authority on the issue, I set this portion of the judgment out in full:

“174. The primary judge held that the appellant breached its implied contractual obligation to render its services with “due care and skill” pursuant to s 74(1) of the Trade Practices Act as it stood at the relevant time. Section 74(1) relevantly provided:

“In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill ...”

175. His Honour held that the quantum of damages recoverable for the breach of the implied warranty was not limited by Part 2 of the Civil Liability Act. He considered himself bound by Wallis to find that the Part 2limitations were inconsistent with the right to “full contractual liability” conferred by s 74 of the Trade Practices Act. Under s 109 of the Constitution, s 74(1) of the Trade Practices Act prevailed and Part 2 of the Civil Liability Act was invalid to the extent of the inconsistency.

176. The appellant submits that the primary judge erred in finding that the right to “full contractual liability” found in Wallis to be conferred by s 74(1) was inconsistent with the operation of the limit created by Part 2 of the Civil Liability Act. The essence of the appellant’s submission is that Part 2 of the Civil Liability Act regulates the quantification and measure of damages whereas s 74(1) does not. According to the appellant, “there is nothing in the Trade Practices Act or any other Federal legislation which regulates the measure of damages for breach of contract [with] which the CLA can ‘impair’ or conflict”.

177. In his first judgment, the primary judge expressed the tentative view (at [123]-[124]) that the respondent’s claim in contract for breach of the warranty implied by s 74(1) of the Trade Practices Act was not subject to Parts 1A and 2 of the Civil Liability Act. However, as the matter raised constitutional issues of some significance, he considered it appropriate to stand the matter over until further submissions could be made. Those submissions were heard on 9 September 2013. His Honour delivered a judgment on 4 October 2013 in which, after summarising the applicable principles in Wallis (at [7]-[10]), he made the following observations:

“Senior Counsel for Perisher, Mr Sexton SC, noted that the operation of former s 74(1) of the Trade Practices Act was different to that of a number of other provisions in former Part V of the Trade Practices Act (eg s 52) in that s 74(1) did not create a cause of action the remedies for which were to be found in the Trade Practices Act. Instead the only cause of action is for breach of the term implied into the contract by s 74(1) (Arturi v Zupps Motors Pty Ltd [1980] FCA 164; 49 FLR 283, cited in Wallis at 398). Mr Sexton SC submitted that the regulation of the means of proving a breach of contract and the remedies for such a breach was generally a matter of state law subject to any express provision made to the contrary by Commonwealth law. Thus he contended that the source of law for a demonstrated breach of the term implied by s 74(1) was State law, which in this case included the restrictions on damages found within Part 2 of the CLA.

Unconstrained by authority there is force in this argument. However it is directly inconsistent with the judgment of Toohey and Gaudron JJ in Wallis and, in particular, the reference by their Honours to ‘full contractual liability for breach’ in the passage extracted above. Their Honours accepted the submission that the implication by federal law of the term provided for in s 74(1) necessarily carried with it a remedy of damages assessed at common law and that any attempt to limit that remedy created a ‘direct inconsistency’ for the purposes of s 109 of the Constitution. I was not referred to any subsequent discussion of Wallis that affects this analysis. In the Court of Appeal in Insight Basten JA and Sackville AJA discussed Wallis in these terms at [98] and [143] respectively. Spigelman CJ cited the supplementary explanatory memorandum to the legislation that introduced s 74(2A) which recorded an understanding on the part of the Commonwealth that Wallis had this effect.

Even if it was thought that the approach to s 109 of the Constitution in the above passage from Wallis was reconsidered or superseded by that adopted in Momcilovic v R [2011] HCA 34; 245 CLR 1, and I doubt that it was, it would not affect the outcome of Wallis. In any event, this Court is still bound by Wallis. I am unable to discern any relevant distinction between s 6(1) of the Carriers' Liabilities Act and the restrictions found within Part 2 of the CLA. I am bound by the decision in Wallis to find that the damages that Dr Nair-Smith can recover for breach of the term implied by s 74(1) of the Trade Practices Act are not subject to the limitations found within Part 2 of the CLA.”

178. In Wallis, the Queensland Commissioner of Police entered into a contract with Downard-Pickford for the carriage of the goods of one Wallis from Ayr to Derby. The contract contained an implied obligation on Downard-Pickford to render its services with due care and skill by virtue of s 74(1) of the Trade Practices Act. Wallis’ goods were damaged in transit through Downard-Pickford’s failure to exercise due care and skill. The damage was quantified at $1,663.47. The issue was whether Downard-Pickford could rely on the limits on liability imposed by s 6(1) of the Carriage of Goods By Land (Carriers’ Liability) Act 1967 (Qd) (“Carriers Act”) in answer to Wallis’ claim for breach of the term implied by s 74(1). Section 6(1) provided:

“A carrier shall not be liable for loss or injury to any goods entrusted to him under a contract of carriage ... in an amount greater than twenty dollars per package or, in the case of unpackaged goods, per item of goods consigned or two hundred dollars per consignment, whichever is the less, [unless the true value of the goods is disclosed in advance].”

179. Section 6(1) was deemed to be incorporated into any such contracts of carriage by s 9(1). Section 9 was as follows:

“Provisions of Act incorporated in contracts. There shall be deemed to be incorporated in every contract of carriage and in other contract under which is to be a carriage of goods to which this Act applies the provisions of sections four, five and eight and of subsections (1) and (3) of section six of this Act.”

180. In Wallis, the appellant submitted that s 74(1) creates a contractual liability and a correlative contractual right to a “full contractual remedy”. As the appellant did in these proceedings, the respondent in Wallis submitted that s 74(1) says nothing about the measure or quantification of damages that may be recovered for breach of the implied warranty and does not impliedly make provision for the quantum of damages. Toohey and Gaudron JJ (with whom Deane, Dawson and McHugh JJ relevantly agreed) impliedly rejected the respondent’s submission in holding (at 396-397) that:

“the warranty created by s 74 carries with it full contractual liability for breach. Section 6(1) of the Queensland Act purports to limit that liability. The consequence is that there is a conflict between the two statutes, a conflict which amounts to a direct inconsistency in the sense that the Queensland Act detracts from the full operation of a right granted by the Trade Practices Act (Clyde Engineering Co. Ltd. v. Cowburn [1926] HCA 6; (1926) 37 CLR 466 at 478 per Knox CJ and Gavan Duffy J; Victoria v. The Commonwealth [1937] HCA 82; (1937) 58 CLR 618 at 630 per Dixon J; Ansett Transport Industries (Operations) Pty. Ltd. v. Wardley [1980] HCA 8; (1980) 142 CLR 237 at 259-260 per Mason J). The limitation is therefore, to that extent, invalid by reason of s 109 of the Constitution."

181. In obiter, Toohey and Gaudron JJ discussed whether s 6(1) could operate independently of s 9(1) and expressed the tentative view that it could not. The critical finding by their Honours was that “the warranty created by s 74(1) carries with it full contractual liability for breach”.

182. Wallis was referred to by this Court in Insight Vacations v Young [2010] NSWCA 137 (“Insight”). An issue there was whether s 74(2A) of the Trade Practices Act picked up and applied s 5N of the Civil Liability Act. Section 74(2A) provides:

“If:

(a) there is a breach of an implied warranty that exists because of this section in a contract made after the commencement of this subsection; and

(b) the law of a State or Territory is the proper law of the contract;

the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of a liability, for breach of another term of the contract.”

183. The primary judge referred to three passages in Insight. In the first (at [98]) Basten JA said:

“[Wallis] involved a claim for damages for goods damaged in transit as a result of the carrier’s failure to use due care and skill. The claim relied upon a breach of the implied warranty in s 74(1) of the Trade Practices Act. The question was whether the damages were limited by a cap imposed on such claims by a Queensland Act. The High Court held that the Queensland legislative provision was inoperative because inconsistent with the scope of liability arising under the Trade Practices Act. The corrective amendment, now found in s 74(2A), was intended to avoid that consequence.”

184. Sackville AJA said (at [143]):

“In Wallis, it was held that s 74(1) of the TP Act,by implying a warranty into certain contracts, created not merely contractual rights, but ‘full contractual liability for breach’: 179 CLR at 396, per Toohey and Gaudron JJ. The Queensland legislation at issue in Wallis provided that a carrier was not to be liable under a contract for loss of or injury to goods entrusted to the carrier in an amount greater than $20 per package, unless disclosure of true value was made in advance. The legislation therefore took effect once the carrier was liable for loss and limited that liability to a fixed dollar amount. Since the Queensland Act purported to limit the liability of the carrier for breach of the contractual warranty implied by statute, there was a direct inconsistency between it and s 74(1), in the sense that the Queensland Act detracted from the full operation of a right granted by the TP Act. The limitation of liability in the Queensland Act was therefore rendered invalid by reason of s 109 of the Constitution.

The drafter of s 74(2A) of the TP Act appears to have accepted that s 74(1) creates both a contractual right and ‘full contractual liability for breach’.”

185. The third passage referred to the Second Reading Speech, Consideration in Detail Speech and Explanatory Memorandum for the Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth), which introduced s 74(2A): see Spigelman CJ at [43]-[45]. The extracts from those documents suggest that parliament’s intention in enacting the legislative amendment was to ensure, among other things, that damages for breach of the implied warranty be subjected to any State and Territorial statutory regimes that limit or regulate the quantification of damages in contract. The Parliamentary Secretary moving the legislative amendment made the following statement in the Consideration in Detail Speech:

“Based on legal advice, the Commonwealth has concerns that some actions in contracts based on a breach of the condition that services be provided with due care and skill may not be subject to any limitations which might be applied by a state or territory contractual remedy. To this end, the Commonwealth has decided to make a minor amendment to clarify this issue. The proposed amendments will seek to ensure that state and territory reforms of the law of contract are not undermined.”

186. The Supplementary Explanatory Memorandum issued with respect to the legislative amendment enacting s 74(2A) stated that:

“1.4 While contract law is ordinarily dealt with by the State and Territories, the Commonwealth has been provided with legal advice that the effect of the High Court’s decision in Wallis v Downard-Pickford (North Queensland) Pty Ltd is that actions in contract based on a breach of the condition that services be provided with ‘due care and skill’ would not be subject to any limitations which might be applied by a State and Territory to contractual remedies.

1.5 The amendments will seek to ensure that State and Territory reforms of the law of contract are not undermined.”

187. This Court’s reasoning in Insight suggests that the legislature’s purpose in introducing s 74(2A) was to address a concern that any attempt by State or Territory legislatures to regulate quantum or measure of damages recoverable for a breach of the term implied by s 74(1) would be inconsistent with s 74(1) because of the High Court’s decision in Wallis. The Court found that s 74(2A) picked up and applied s 5N and therefore that no inconsistency arose. Section 74(2A) came into effect on 13 July 2004. It did not purport to have a retrospective effect. Section 74(2A) only applies to contracts entered into after it came into effect. The contract between the respondent and the appellant was entered into on 17 July 2003. Section 74(2A) therefore has no effect on the contract presently under consideration.

188. According to the primary judge, “full contractual liability” means “damages assessed at common law”. Thus, the right granted by the Commonwealth Act is the right to have one’s damages assessed according to common law. As Part 2 of the Civil Liability Act purports to limit the amount of damages recoverable for breach of the implied warranty to something less than the full amount that would be available at common law, it is inconsistent with s 74(1) and invalid accordingly. The primary judge’s interpretation of Wallis is consistent with the Court of Appeal’s remarks in Insight.

189. The appellant submits that Wallis is distinguishable from the present case because, in Wallis, s 6(1) of the Carriers Act was incorporated into the contract of carriage pursuant to s 9(1) of the Act so that both s 6(1) and s 74(1) formed part of the same contract and it would have been impossible to obey both terms and thus both laws. The impossibility of performing both contractual obligations therefore gave rise to direct inconsistency.

190. That characterisation of the decision in Wallis cannot be accepted. Toohey and Gaudron JJ addressed the issue of whether s 6(1) could have effect and operate independently. They said (398-399):

“[I]t is not clear whether they operate together only or whether each has independent standing. Because of the way in which the appeal was conducted this issue does not arise for decision. Nonetheless it may well be that to divorce s 6(1) from the operation of ss 5 and 9 in the context of an Act designed to regulate contracts of carriage (including contracts with consumers) would be to prefer form over substance in a way that undermines the operation of the Trade Practices Act.”

191. Thus Toohey and Gaudron JJ did not express a concluded view on whether s 6(1) only had force and effect by virtue of s 9(1) but they did find that s 9(1) was invalid to the extent that it incorporated s 6(1) into contracts for carriage to which s 74(1) applied. It is clear that the High Court considered that s 6(1) was inconsistent with s 74(1) irrespective of whether it was incorporated into the contract or had independent statutory force. What was material in Wallis was that s 74(1) conferred a right that s 6(1) purportedly qualified. It was this that constituted the inconsistency. The means by which the attempted qualification by State law is effected does not matter. The fact s 6(1) was incorporated into the contract for carriage, whereas the Civil Liability Act provisions are not is not a sufficient basis for distinguishing Wallis from the present case.

192. It is not immediately obvious how s 74(1) regulates the measure and quantification of damages, even in light of the High Court’s decision in Wallis and its subsequent interpretation by the Court of Appeal in Insight. The High Court held that a right to “full contractual liability” inhered within the creation of the implied warranty by s 74(1). The Court did not elaborate on what was meant by that expression. The summaries of Wallis in Insight suggest that the phrase concerns the amount of damages that are recoverable for a breach of the implied warranty. This reading of Wallis seems to follow inexorably from the fact that s 6(1) purported to limit the amount of damages recoverable for a breach of the implied warranty and that was said to be the source of the inconsistency. If s 6(1) regulates the amount of damages recoverable for a breach of 74(1) and s 74(1) is inconsistent with s 6(1), s 74(1) must regulate the measure of damages recoverable for breaches of the term implied by it otherwise no inconsistency would arise.

193. Once it is accepted that s 74(1) regulates the quantification of damages, the question becomes how, precisely, does it do that. On its face, s 74(1) says nothing about how damages are to be assessed and quantified. Recourse must be had to the statement in Wallis that it confers entitlement to “full contractual liability”.

194. The phrase “full contractual liability” must be understood as a reference to the full amount of damages recoverable at common law undiminished by any State’s or Territory’s legislation and free from any intrusion by such legislation.

195. The primary judge correctly held that Part 2 of the Civil Liability Act is directly inconsistent with s 74(1) of the Trade Practices Act and invalid to that extent. The damages the respondent can recover for breach of s 74(1)are to be determined in accordance with the principles applicable at common law and are not subject to the limitations contained within Part 2 of the Civil Liability Act.”

89. The inconsistency in those proceedings arose by reason of the reference to “full contractual liability” in the Commonwealth legislation. This brings me to a consideration of these principles in relation to the claim before this court.

Application to the present case

90. While I note the statements of law of the Court of Appeal, the Warsaw Convention is given force as a law of the Commonwealth by s 25K of the Act and it is by reason of ss 25L and 36 of that Act that the carrier is liable. A carrier’s liability for personal injury suffered by a passenger is substituted for civil liability under any other law. A plaintiff who brings an action for damages suffered during an international flight (or for that matter embarking or disembarking) is thus bringing an action not under common law or a State law, but under Federal jurisdiction (see s 39(2) Judiciary Act 1903 (Cth)) because the plaintiff is seeking to enforce a liability created by the Convention. This means that Part 2 Civil Liability Act can only apply if either s 79 or s 80 of the Judiciary Act (Cth) picks up this provision and applies it as surrogate Federal law.

91. Section 79(1) Judiciary Act provides:

“(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

92. Section 80 provides:

“Common law to govern

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.”

93. Section 109 of the Commonwealth of Australia Constitution Act 1900 (Cth) (“The Constitution”) provides:

“Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

94. This issue was considered in Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251, where the High Court held (at [63]) that the relationship between s 109 Constitution and s 79 Judiciary Act, which is sequential rather than concurrent, was further explained in Northern Territory v GPAO53, where the expression “threshold issue” was used. As is noted Agtrack, s 109 Constitution would render State law inoperative and Lord Campbell’s Act thus had no application in any action brought under the Act.

95. This appears to be inconsistent with the ratio of McKenna v Avior Pty Ltd, where the Court held that principles as to the assessment of damages applied in claims of the Lord Campbell’s Act kind were applicable to a claim under the Act.

96. The question is really one of interpretation of the reference to “any civil liability under any other law in respect of the injury”, which is when ss 25L and 36 of the Act apply. If those words embrace any quantification of such civil liability, then the assessment of damages brought to enforce a liability under the Warsaw Convention falls outside the reach of State law.

97. While there is no decision of any superior court of record on these issues, I was able to find and provide to the parties a very helpful case note prepared by Mr Gerald Ng, “Damages for personal injury sustained during international carriage by air”, 2010, Law Society Journal 66. Mr Ng has set out a discussion of these principles, noting however that the Second Reading Speech concerning the Act made observations about assessment of damages in circumstances where the relevant approach had been “modified in various ways by different States with the result that there is no uniform approach to the question”.

98. The terms of the Act are strongly suggestive of the legislative intention to cover the field in respect of a carrier’s liability for death or injury of passengers, which would give rise to an inconsistency within the meaning of s 109 of the Constitution. The purpose of the legislation was to introduce a regime of strict liability and situations where the cause of action was not negligence in the slip and fall sense of the word, but a wider entitlement designed to cope flexibly with the inherent dangers of aircraft travel.

Conclusions

99. The question of which law governs the assessment of damages would depend upon a resolution of the constitutional issue. I am in no place to do that, for the following reasons:

1. The relevant notices under s 78B Judiciary Act 1903 (Cth) have not been provided and submissions which should have been provided to assist me in such a finding have not been raised.

2. The only applicable decision of the New South Wales Court of Appeal (namely Pel-Air) has, most unfortunately, not considered this issue, despite dealing with the assessment of damages of the same kind. Nevertheless, if only by omission, this decision has resulted in a regime for damages assessment which I consider binding.

3. The requirements of comity mean that I should give full consideration to the findings of Sorby DCJ, which I propose to do, given the carefulness of his Honour’s reasons and the fact that these have remained undisturbed on appeal (the appeal was settled at the end of the Court of Appeal hearing, according to Mr Lloyd).

100. All of the above point to a determination that the relevant legislation must be accepted by me to be the Civil Liability Act. However, in the event that I have erred in this finding, I have made findings as to quantum under both regimes.

101. Ain addition, for the benefit of any appellate court (or alternatively any legislative body considering amendment to the law), I note the following non-judicial consideration of these issues.

Non-judicial consideration of this decision

102. The impact of Sorby DCJ’s judgment was discussed in the Parliament of Australia’s background paper to the 2012 bill (Aviation Legislation Amendment (Liability and Insurance) Bill 2012 (Cth)) as follows, (

“In November 2002 an in-principle agreement on nationally consistent legislation was reached. Subsequently each of the states introduced legislation that picked up the wording of the key recommendations of the Ipp report. However as the recommendations were not drafted in legislative form, the legislative changes were not uniform across the states.

This issue of the assessment of damages arose in the NSW District Court case of Arefin v Thai Airways International Public Company Limited, where the plaintiff claimed damages for injuries suffered on a flight between Thailand and Australia. While this case involved an international flight, the Warsaw Convention, as adopted by the Carriers’ Liability Act, applied. Justice Sorby noted that the Carriers’ Liability Act does not contain any provisions about the process to be followed in assessing damages. That being the case, it was decided that the current civil liability laws of New South Wales were the correct laws to be applied.

In the Discussion Paper, the Government confirmed that its preferred option is to ensure damages are assessed in accordance with the civil liability schemes and that the Carriers’ Liability Act and the Damage by Aircraft Act should be amended to reflect this. However, the Bill does not implement this preliminary finding.” (Footnotes omitted)

103. The issue of interaction with State civil liability laws was also discussed in the Australian Government’s discussion paper, Department of Infrastructure, Transport, Regional Development and Local Government, “Review of Carriers’ Liability and Insurance – Discussion Paper” (May 2009) ( as follows:

“4.7. Interaction with State Civil Liability Laws

Earlier this decade, many state governments pursued ‘tort law reform’ schemes, and introduced legislation to counter the perceived ‘Americanisation’ of liability claims. The schemes sought to respond to community perceptions that inappropriately large compensation payouts were being awarded to unmeritorious plaintiffs.

The laws deal with a range of issues relating to how damages are assessed (specifying, for example, Page 32 Carriers’ Liability and Insurance discussion paper how to calculate damages to reflect projected lost wages), and often impose thresholds (so that no compensation is available if the damage suffered is below the threshold) aimed at weeding out nominal or frivolous claims.

Several submissions to the Issues Paper noted that there was uncertainty as to whether these state government Acts applied in the context of damages assessed under both the DBA Act and the CACL Act.

This issue was considered by the District Court of NSW in the case of Arefin v Thai Airways International Public Company Limited, which involved a claim for damages for personal injuries suffered by the plaintiff on a flight between Thailand and Australia. Justice Sorby accepted that the Warsaw Convention, as adopted by the CACL Act, applied and further determined that the Convention and hence the CACL Act does not set out how damages are to be assessed. Having reached this conclusion, Justice Sorby determined that the current laws of New South Wales, including the Civil Liability Act 2002, applied (by virtue of the Federal Judiciary Act 1903) to the assessment of the plaintiff's damages. Presently, the findings of the District Court have not been the subject of any final appeal or reconsideration by a differently constituted Court.

If the state government legislation did not apply, damages would be assessed in accordance with the common law, potentially leading to significantly larger compensation payouts. The submissions argued that the Commonwealth should amend the CACL and DBA Acts to clarify that the state government civil liability laws are applicable to claims brought under the Commonwealth Acts.

An alternative would be to clarify that claims are to be assessed in accordance with the common law, or to develop Commonwealth laws relating to the assessment of damages under the DBA and CACL Acts.

The Government recognises that there is value in clarifying this issue one way or another. Applying common law rules on this issue risks re-introducing outmoded and outdated principles relating to damages assessment, and may do little to provide greater certainty. Developing Commonwealth laws on this issue would ensure a consistent national framework for the assessment of damages under the CACL and DBA Acts, but could be seen to complicate the broader laws on the assessment of damages by adding another framework with limited application.

The Government’s preferred option is to ensure that damages are assessed in accordance with the state government legislation dealing with this issue. Although this will lead to variability in compensation levels depending on where in Australia the case is heard, the approach will ensure greater consistency with the broader laws relating to the assessment of damages.”

104. I have highlighted the relevant portions. This discussion resulted in the following preliminary finding:

“Preliminary Finding 19

The Government should amend the CACL Act and the DBA Act to ensure that damages are assessed in accordance with state government civil liability regimes.”

105. The relevance of the replacement of “personal injury” with “bodily injury” is explained in the 2012 Parliamentary report, which states:

“In Australia, the Federal Court has interpreted the term ‘personal injury’ to include claims for purely mental injuries. The issue that arises is whether the proposed amendment to refer to ‘bodily injury’, rather than ‘personal injury’ will operate so that passengers who are injured as a result of domestic aircraft accidents will be limited to claiming in respect of only physical injuries. Much will depend on the Australian courts’ interpretation of the term ‘bodily injury’.

The Discussion Paper states that:

This change would still allow for the compensation of mental injuries in many instances, and there have been many cases where mental injuries have been compensated by Courts applying the ‘bodily injury test’ under the Warsaw/Montreal system.

It is recognised that deleting the reference to ‘personal injury’ and substituting ‘bodily injury’ will not remove all uncertainty in relation to this issue. This is because there remains ongoing legal conjecture as to how ‘bodily injury’ should be interpreted. However, limiting carriers’ liability under the domestic system to ‘bodily injury’ will ensure that the issue is treated consistently across the domestic and international frameworks and remove unnecessary complexity from the overall liability structure.

The Explanatory Memorandum to the Bill reinforces this approach:

The Bill will limit carriers’ liability under the domestic system to ‘bodily injury’ with the intention of ensuring that this issue is treated consistently across domestic and international frameworks.

It would appear that the courts in the United States and the United Kingdom have interpreted the term ‘bodily injury’ to include claims for mental injuries in some circumstances where physical injuries have also been incurred.” (Footnotes omitted)

106. I am unaware of any other discussion of these issues, either academically or by the legislature. It seems surprising that millions of persons travel by air each year without these essential issues of liability for injury being crystallised, given that the uncertainty as to which statutory regime applies has been known for years, if not decades. Clearly legislative clarification of some kind is called for.

107. Although I have set these observations out in some detail, I have not, however, relied upon any of this information in relation to the proceedings before me.

Application of the Civil Liability Act to the assessment of damages

108. Whatever legislation applies, I am satisfied that the plaintiff’s injuries are so slight as to be de minimis, and that what little medical evidence has been produced is unsupportive of there being any claim of significance. The schedule of damages served on behalf of the plaintiff is so far out of proportion with her injuries as to be itself a matter for concern.

109. The plaintiff’s sole medical report, that of Dr Lee, is based on such inadequate prior history as to be almost valueless, and the plaintiff’s general practitioner’s notes are not supportive of her case. Nor has the plaintiff explained the gaps in her consultation of doctors concerning this condition which was causing her so much pain and anxiety (as to which see Nominal Defendant v Kostic [2007] NSWCA 5).

110. The plaintiff was not an impressive witness. I am comfortably satisfied that the plaintiff gave dishonest evidence (in the form of gross exaggeration) concerning her injuries and disabilities and the extent to which they related to the Jetstar accident. The evidence of her son was of no assistance; if anything, it underlined how uncertain her entire claim, and not merely her home care claim, was.

Determining the quantum of the plaintiff’s claim

111. I am satisfied that the plaintiff suffered the bruising and soft tissue injuries which entirely resolved in the few weeks following the accident.

112. As to the plaintiff’s claim for home care, if I do not accept the plaintiff’s own evidence, there is no evidence whatever to support the plaintiff’s claim. There is in fact compelling evidence from an occupational therapist as to the plaintiff’s condition prior to the accident. The plaintiff cannot meet the threshold for either past or future home care. I also note that the plaintiff did not give evidence of being willing to pay for future home care assistance in the event that unpaid assistance from her family is not available.

113. As the plaintiff’s condition has completely resolved, she has no need of medication. Her past out-of-pocket expenses are uncertain; an allowance of $500 is suggested by the defendant and I propose to accept that finding.

114. If I have erred in applying the Civil Liability Act, I would refuse to assess damages other than for non-economic loss. The amount of $10,000 proposed by the defendant is generous since the actual claim appears to have been for $53.86, which Mr Lloyd notes says something about the seriousness of the plaintiff’s injuries in any event.

115. On either of these determinations, the plaintiff has not lost a chance for anything other than the actual claim of $53.86 and possibly some over-the-counter medication or, at best, $10,000 general damages. As I have concluded below, she has lost the chance to bring litigation of such a speculative nature that her actual loss, in terms of legal costs, could have been greater than the costs of medication or seeing a general practitioner or even this modest sum of damages.

Other issues arising

116. When I assess the damages for the lost chance, I must be satisfied that the plaintiff has suffered an “accident” in accordance with s 28 of the Act and whether that accident occurred in the course of disembarking. At T 100, Mr Lloyd stated there was no issue concerning “accident”, and I am prepared to assume an accident occurred. I note that the plaintiff has adduced no evidence about who had control of the stairs (and indeed that she knew nothing about it (T 102)), and it was submitted that the plaintiff’s claim could fail because she might not be found to have been “disembarking” on the basis that the stairs were not under the control of Jetstar.

117. I am satisfied that the plaintiff would have been able to establish on the balance of probabilities that Jetstar had control of the stairs. They were attached to a plane on the tarmac under the control of personnel liaising with Jetstar and the state of wetness from the rain was a matter directly observable by Jetstar staff.

Conclusions concerning the lost chance

118. I must take the plaintiff at her word in terms of the kind of chance she says she has lost. This is not a case where the plaintiff claims for the loss of a chance to claim a small amount of medication and some gratuitous sum for consolation. If that had been the loss she claimed, the result of this action may have been different.

119. I am satisfied that the chance identified as being lost by the plaintiff (namely the case she puts before me) was a speculative claim which would probably have resulted in nominal damages and the potential for either no costs or adverse costs orders. Her injuries were grossly exaggerated and the most she could hope for was some form of small award to offset the potential cost of these proceedings going to trial. A very significant discount should be applied to the damages to be awarded for loss of a chance even if these were awarded. Any damages the plaintiff would have been entitled to for this loss of a chance would have to be discounted to reflect that she would have had to be prepared to settle her claim for a token sum. This would be in part because the uncertainty about which legislation quantifies the claim could add to the legal costs of these proceedings being wholly out of proportion to the assessment of damages involved. Whatever the findings at first instance, the high likelihood of appeal and the legal complexity of the issues involved would have rendered any award of damages being wiped out by the disbursements alone, even if the plaintiff had the benefit of a no win no fee agreement.

120. Mr Lloyd also submits that the plaintiff might not succeed in the action at all, putting the chance of success at 50%. I consider that this misconceives the nature of the interaction between the liability and assessment issues set out in the Act in that the legislation talks of an “accident” while “disembarking”, both of which would be readily made out in this case.

121. The combination of the minimal nature of the injuries and token damages correspondingly likely to be awarded, added to the legal complexities of the case, must result in a finding that the plaintiff has not lost a chance at all. By not commencing proceedings, the plaintiff has probably had a lucky escape.

122. Mr Lloyd has provided in his schedule of damages for an estimate of the unrecoverable solicitor/client costs of an action against Jetstar. The plaintiff does not give any evidence about this amount, and I do not propose to deal with it beyond noting that this is yet another obstacle in the plaintiff’s path. Similarly, I do not propose, in light of my findings, to deal with the plaintiff’s submissions concerning failure to mitigate and the discontinuance of the proceedings against Jetstar.

123. By reason of my findings concerning liability, I have not dealt with the issue of whether the Queensland Civil Liability Act, as opposed to the NSW Civil Liability Act, applies, this being a matter to which the parties gave scant attention in their submissions.

Concluding Remarks

124. The defendant has been successful, and costs should follow the event: r 42.1 Uniform Civil Procedure Rules 2005 (NSW). I have granted liberty to apply.

125. The hearing of these proceedings was adjourned several times for reasons unrelated to the conduct of the litigation. Any order in relation to costs should relate to the whole of the proceedings notwithstanding those delays. However, I have granted liberty to apply in relation to the costs order I have made.

Orders

1. Judgment for the second defendant.

2. Plaintiff pay the second defendant’s costs.

3. Liberty to apply in relation to costs.

4. Exhibits retained for 28 days.

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Amendments

22 May 2018 - [62] - Typographical error

Decision last updated: 22 May 2018