Yousef Sukkarieh v Nominal Defendant

[2008] NSWDC 163

CITATION:	Yousef Sukkarieh v Nominal Defendant [2008] NSWDC 163
HEARING DATE(S):	July 15,16, 17 2008
JUDGMENT DATE:	14 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Murrell SC DCJ
DECISION:	See Paragraphs 53 and 54
CATCHWORDS:	Pedestrian accident, unidentifiable vehicle, due inquiry and search, negligence, future economic loss.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW)
CASES CITED:	Harrison v Melhem [2008] NSWCA 67 Nominal Defendant v Swift; Wollondilly Shire Council v Swift [2007] NSWCA 56
PARTIES:	Yousef Sukkarieh (Plaintiff) Nominal Defedant
FILE NUMBER(S):	5307/2006
COUNSEL:	Michael Maxwell David O'Dowd
SOLICITORS:	Ray Abbas, Gerard Malouf & Partners Moray & Agnew

JUDGMENT

Yousef Sukkarieh v Nominal Defendant

1 On 15 February 2005, the plaintiff (date of birth 11 November 1984) presented at Westmead Hospital with a fractured right medial malleolus, right knee avulsion fracture of the fibula, minimal fracture of the left lateral malleolus and multiple skin abrasions. He said that he had tripped as he was crossing the road and his legs had been run over. The Hospital undertook an open reduction and internal fixation of the fractured right ankle. The plaintiff's right leg was placed in a non - weight bearing cast for six week. His left leg was placed in a weight bearing cast. On 2 March, he was transferred to St Joseph's Hospital, where he received rehabilitation as an inpatient. On 7 March, he was discharged. Since the accident, the plaintiff has worked sporadically. He has not resumed his pre - accident sporting activities of kickboxing and social football.

Issues

I. Were the injuries sustained in the manner described by the plaintiff?
II. Has the plaintiff shown that, after due inquiry and search, the identity of the vehicle cannot be established?
III. Was the plaintiff guilty of contributory negligence?
IV. To what extent has the plaintiff suffered past and future economic loss because of the accident?
V. To what extent did the plaintiff require domestic assistance following the accident?
VI. The amount of the plaintiff's past and future out-of-pocket expenses.

The Accident

2 The plaintiff said that, early on the morning of 15 February 2005, he travelled by train to Parramatta for the purpose of enquiring about possible work in the Harris Park area. He crossed Parkes Street by the route described in Exhibit C. As he reached the fourth (southern kerbside) lane, he tripped. His head hit the ground. He landed on his back with his head towards the gutter and his feet towards the middle of the road. He saw a small landscaping - type truck ("a couple of tonne") coming from his right and veering to it's left. It ran over his legs. It did not stop. The impact pushed him a couple of metres back onto the footpath. After about five (or, possibly, up to fifteen) minutes, a driver pulled over and conveyed him to Westmead Hospital.

3 The defendant submitted that the plaintiff's version of events should not be accepted on the balance of probabilities.

4 First, the defendant submitted that the plaintiff should not be believed because his account was riddled with inconsistencies. The plaintiff gave a vague and inconsistent account of where he was going on the morning of 15 February and how he intended to get there. He said that, after the accident, it was between 5 and 15 minutes until someone to stopped and rendered assistance, an improbable length of time given the traffic volume. He said that the accident occurred at 7:30 am and that, following the accident, he was taken straight to the Hospital, but the triage note was at 9:14 am. A nursing note at 9:20 am says "patient states tripped while crossing the road car ran over legs approx 50 kph", but, later on the same day, police noted that the plaintiff had not seen the car that hit him. In the claim form completed on 10 March 2005, the plaintiff stated that he had been hit by a white 5 tonne tipper truck. In evidence, he said that vehicle details had come to him in a "flashback". The plaintiff gave inconsistent accounts about whether he spoke to the person who drove him to the Hospital and whether that person accompanied him into the Hospital. He said that, when admitted to the Hospital, he was incapable of walking, but the Hospital notes describe him as "ambulatory".

5 The plaintiff presented as a quiet and inarticulate person who was overwhelmed by the court setting or, perhaps, by events generally. In my view, he is incapable of having invented and maintained a false account of how the injuries were sustained. It is true that his account has been inconsistent, particularly in relation to whether he saw the offending vehicle and the nature of the vehicle (whether it was a car or a truck, and the size of any truck), but from the moment of his admission to hospital the plaintiff has not wavered in his story about generally where, when and how the injuries were sustained. The main inconsistencies are between accounts given on 15 February and those given on later dates (when reference was made to a truck). On 15 February, the plaintiff would have been emotionally upset by his injuries. The changes in the plaintiff's account were not "improvements". Further, the injuries sustained by the plaintiff were unusual but consistent with his account of the accident in that both ankles were injured and there was a gravel rash injury (see the nursing notes and the evidence of the plaintiff's sister). I accept that the plaintiff was struck by some sort of vehicle and that he now genuinely believes that it was a small landscaping-type truck. Because of the differing recollections about the vehicle, I have no confidence that, in fact, it was a small, landcaping - type truck.

6 Second, the defendant submitted that there was a biomedical explanation neither for the injuries nor for the plaintiff having been pushed from the roadway up onto the footpath. Mr Griffiths, a biomedical and mechanical engineer called by the defendant, said that a truck of any size would have caused a crush injury, not a fracture. The damage to the plaintiff's legs was consistent with a loading of less than .75 tonne, the loading that would be associated with each front tyre of a small landscaping - type truck. Further, a truck approaching in a straight line (as Mr Griffiths assumed) would not have pushed the plaintiff towards the kerbside and elevated him on to the footpath.

7 As to the nature of the injury, Mr Johnson, the plaintiff's consulting engineer, generally agreed with Mr Griffiths, although he said that, if a very light truck had driven straight over the right ankle, he "could not exclude" the type of injury that occurred. With the aid of the plaintiff, Mr Johnson had identified the scene of the alleged accident as being closer to Anderson Street than the location assumed by Mr Griffiths. He opined that, had the offending vehicle been turning left from Anderson Street into Parkes Street, and had it veered to the right in an unsuccessful attempt to avoid the plaintiff (as described in plan 2 to Mr Johnson's report, Exhibit A ), then the combination of forces may have rotated the plaintiff's body anticlockwise and pushed it in the direction of the kerb. Even so, there must have been "some involvement of the plaintiff" to explain his elevation onto the footpath.

8 I conclude that the offending vehicle was a car, utility or very light truck. A heavier truck, such as the 5 tonne truck described in the claim form, would have caused a crush injury, not a fracture. I note that, when the plaintiff first mentioned a vehicle on 15 February, he referred to a car. Further, the accident occurred when the vehicle veered to the right, propelling the plaintiff towards the kerb. A veering to the right is consistent with only one tyre ( the left tyre) impacting with the plaintiff, and with the impact occurring on the ankles (see Mr Johnson's plan 2). It is quite likely that the vehicle turned left from Anderson Street, consistent with the plaintiff's evidence that, when he began to cross, there was no oncoming traffic in Parkes Street.

9 There was no contest that, if the accident occurred at all, the vehicle driver was negligent because there was ample opportunity to observe the plaintiff crossing the road and avoid him (Mr Johnson's plan 2 is a time/motion analysis, and see paras 5.16 to 5.28 of his report).

Due Inquiry and Search

10 Section 34 of the Motor Accidents Compensation Act 1999 enables an action for the recovery of damages to be brought against the Normal Defendant "if the identity of the vehicle cannot after due inquiry and search be established".

11 The accident was reported to the police on the day that it occurred and, on that day, police took a statement from the plaintiff . Six or seven weeks after the accident, the plaintiff's father returned from interstate and visited the scene. At that time, the plaintiff was significantly incapacitated. The plaintiff's father sought witnesses at the three nearby significant business premises (albeit mentioning a time of accident that was incorrect by one hour) but located no witnesses (Exhibit F). On 18 May, the plaintiff's solicitors sought to place a newspaper advertisement (Exhibit G), although there was no evidence that the advertisement actually appeared.

12 The plaintiff is not required to undertake "ritual inquiries and charade procedures" in an obviously futile attempt to identify an offending vehicle: Harrison v The Nominal Defendant (1975) 7 ALR 680, Nominal Defendant v Swift; Wollondilly ShireCouncil v Swift [2007] NSWCA 56. In this case, all reasonably practical inquiries were made. As immediate police notification and personal enquiry made at the scene six weeks after the accident yielded no result, it is most unlikely that a newspaper advertisement placed three months after the event would have been successful. The requirement of section 34 is satisfied.

Contributory Negligence

13 The plaintiff selected a reasonable position at which to cross the road. As he crossed the middle of the road, he had a clear view of any vehicle leaving Anderson Street. But for the trip, he may well have stopped walking and avoided any impact.

14 The defendant has not established that the plaintiff was negligent.

The Plaintiff's Medical Condition

15 When discharged from St Joseph's Hospital, the plaintiff could navigate stairs using crutches. When reviewed on 14 April 2005, he was partially weight bearing through the right leg. He complained of occasional ankle pain and persisting sensory loss in the right calf and knee. Right knee flexion and power were reduced. The range of right ankle movement was markedly reduced. Dr Berry considered that the plaintiff was unfit for work for another three months as he was unable to weight bear through the right leg. He required physiotherapy. On 4 August 2005, Dr Chan of St Joseph's Hospital noted that the plaintiff had a work certificate until October 2005 (late October, I infer). The plaintiff had a normal range of movement in the ankle, and normal knee and ankle strength. The plaintiff "was able to walk on his toes and heels without any undue difficulty". The only significant problem was patchy sensory loss over the right leg.

16 About two months after the accident, the plaintiff first complained of lower back pain. In July 2005, a chiropractor suggested that there may be a compressed fracture of L1. Having regard to the delay in complaint of back pain and the circumstances of the accident ( the plaintiff tripped and fell onto his back before the vehicle impacted with his legs ), I cannot conclude that the plaintiff's back problems result from the defendant's negligence.

17 In June 2005, the plaintiff's general practitioner noted that he was unable to sleep, depressed, suffering nightmares and "backflash", and socially isolated. He diagnosed a post - traumatic stress syndrome and referred the plaintiff to a psychologist, who noted "a prevailing mood of despair and anxiety" and suggested cognitive behavioural therapy to help the plaintiff to develop effective coping techniques. In September 2006, Dr Selwyn Smith, a consultant psychiatrist engaged by the defendant, noted that the plaintiff was mildly impaired in relation to social and recreational activities and was "at a loss as to how he should proceed with his life", but Dr Smith nevertheless considered that the plaintiff was not so psychologically impaired that he was unable to seek work.

18 In January 2008, Dr Sachdev, an orthopaedic specialist, reported to the defendant that the plaintiff was very depressed. He considered that the plaintiff's complaints of ongoing pain were "exaggerated, with a large element of functional overlay associated with (the plaintiff's) condition", but conceded the possibility of degenerative changes in the right ankle. In March 2008, Dr Bodel, an orthopaedic specialist, informed the defendant that the plaintiff suffered from a slight restriction of right ankle movement.

19 The plaintiff says that he continues to experience frequent headaches, poor memory and concentration, occasional spasm and frequent pain in the lower back, radiating down the right leg, pain in the right knee, aggravated by walking and bending the knee, pain and swelling in the right shin area aggravated by prolonged standing and walking, numbness of the right shin, pain and locking up of the right ankle following significant weight bearing, and pain and occasional locking of the left ankle.

20 The plaintff's general practitioner said that there is a risk that osteoarthritis will develop.

21 The plaintiff's sister (whom I found to be an impressive, if somewhat melodramatic and overstated witness) observed that the plaintiff cannot stand for prolonged periods without experiencing pain and swelling in the right ankle. She said that the plaintiff was restricted in bending and complained of lower back pain. Emotionally, he had become withdrawn, depressed, moody and lethargic. The plaintiff's father gave evidence to the same effect, adding that, more recently, the plaintiff was a little more positive and accepting of his plight.

22 I find that, by November 2005, the plaintiff's ankle injury had stabilised. Since then, there has been some restriction of movement, swelling and pain in the right ankle. For a young man, the disability is not insignificant. The ankle condition will not improve, and there is a risk of osteoarthritis. However, since 2005, the most serious impact has been psychological. At times, the plaintiff has been depressed to the point of despair. Fortunately, of recent times he has become more accepting of his disability and the consequent restrictions on employment and lifestyle, and his mental state is somewhat improved.

Economic Loss

23 At the time of the accident, the plaintiff was a 20 year old man. After leaving school at the end of 2001, he was generally in employment. Inter alia, he worked as a telemarketer, delivery driver and apprentice electrician.

24 The plaintiff's gross taxed earnings from employment as an apprentice electrician over the five months from 28 January to 30 June 2003 were $6522 (plus allowances). He worked in that position until 8 July, and then went overseas for a month. The plaintiff said that he terminated the apprenticeship because he was "a little confused" and was struggling with the associated TAFE studies. The plaintiff's father said that the plaintiff was dismissed because he was absent from work with illness. I accept that the plaintiff terminated the apprenticeship for the reasons that he gave, although he may have led his father to believe otherwise.

25 After returning from overseas, the plaintiff worked for Index Company from 7 August to 2 October 2003, earning $3034 gross. The plaintiff said that there was a period of 8 months during which he worked as a delivery driver. There is no documentation supporting that employment and it is unclear whether the plaintiff was referring to the substantially shorter period at Index, referring to earnings that were not taxed, or referring to work for which he received a government benefit (a substantial government benefit was received during the 2004 tax year). From 3 May to 30 June 2004, he worked for Skilled Workforce Solutions, earning $6207 gross. In the 2004 financial year, his gross taxed earnings from employment over a total period of four months were $9207.

26 It was the plaintiff's uncontested evidence that he worked for Skilled Workforce Solutions for about 3 months (ie until about August 2004). In September 2004, he went overseas. He returned in late December. For the next 6 - 8 weeks, he was unemployed. He decided that he wanted to be an electrician but that, if he failed to gain an apprenticeship, he would accept his uncle's offer of employment as a telemarketer (a field in which he had prior experience), commencing in April 2005 and earning $600 pw net.

27 The plaintiff was an honest witness, but I am not satisfied that he was entirely reliable. I accept the general substance of his evidence, but not all details. I am far from satisfied that his recollection was accurate about the vehicle being a truck. His recollection about his work history may have been flawed. In the absence of supporting documentation and given the payment of a government benefit that was paid in 2004, I am not satisfied that the plaintiff worked as a delivery driver for as long as 8 months. I do accept that he continued to work for Skilled Work Solutions until some time after 30 June 2004 and before he went overseas in September 2004 because the documentation is consistent with that evidence. I accept the plaintiff's evidence that, on the morning of the accident, he was en route to Harris Park to seek employment from a friend of a friend as an electrician's apprentice. Such seemingly vague ventures are not uncharacteristic of young men.

28 In summary, during the 24 months preceding the accident, the plaintiff was in full-time employment that is substantiated by taxation documents for 9 months, the plaintiff says that he was in employment for a further 10 months and I accept that he was in such employment for at least 4 months, the plaintiff was overseas for 4 months, and he was looking for work for 6 weeks. It is common for young people to spend significant periods overseas before settling into a career. When not overseas, the plaintiff was generally working, although there were significant periods when he was out of employment. I am satisfied that, at the date of ther accident, he was actively seeking employment and was hoping to resume his former employment as an electrician's apprentice. I note that each of the plaintiff's siblings is employed in a trade or, in one case, as a delivery driver. I accept that, if he failed to gain a position as an electrician's apprentice, it is likely that the plaintiff would have accepted his uncle's offer of employment.

29 During 2005, the plaintiff did not work.

30 In November 2005, he undertook a two week full-time security course.

31 In January 2006, the plaintiff attempted part - time, unpaid work for an electrician. After 2 weeks, he felt unable to cope with the work. I accept that, when he stood on a ladder for long periods, his leg became swollen. I note that, at that time, the plaintiff had been unemployed and inactive for over a year, and was depressed.

32 I accept the plaintiff's evidence that, in 2006, he felt that he "had to get away" as he was on the verge of suicide. For that reason he moved to Brisbane. He had been raised in Brisbane and his brother still lived there. The defendant suggested that the move was precipitated by conflict between the plaintiff and his parents and/or the breakup of a relationship. However, the plaintiff's sister confirmed the plaintiff's evidence that, at the time of his move to Brisbane, the plaintiff was depressed, withdrawn and emotionally upset for reasons other than family or relationship difficulties.

33 In Brisbane, the plaintiff obtained part-time work in a fruit shop, earning $350 per week net. Thereafter, he undertook casual work for a security company, patrolling in a shopping centre. He said that the work was problematic because, about half an hour into each four hour shift, his right leg would stiffen. Thereafter, he would find it difficult to move around.

34 In October 2006, the plaintiff returned to Sydney. In January 2007, he began to work for G & G Bros Group as an offsider to his brother, who was a driver for that company. The work was heavy. It entailed loading and unloading furniture, and carrying furniture up and down stairs. After a few months, the plaintiff felt unable to continue with the work because it caused his right leg to swell and his back to ache. The plaintiff undertook some work for Concept Engineering as a delivery driver, utilising a trolley. It was constant work that involved going up and down stairs. The plaintiff felt that his legs could not cope and he left that work. In April 2007, the plaintiff began to work as a process worker through Pivotal HR Management. He worked for two or three months on a full-time basis. The plaintiff said that he suffered leg pain and swelling, for which he took painkillers. He left the position. Through Pivotal, he obtained a position as a general hand. He worked for only two or three weeks as the job entailed lifting computers and the plaintiff was unable to cope with the associated strain on his back.

35 Since July 2007, the plaintiff has not worked. He said that he is physically incapable of undertaking work as an electrician because he cannot comfortably kneel or stand on ladders for long periods and cannot crawl about in confined spaces such as roof areas. He said that, because his doctor recommended that he work 15 hours a week, he has sought jobs such as gym and pool attendant, process worker, delivery driver and security guard. He accepts that he can perform such work, at least on a part - time basis. However, he said that employers were unwilling to hire him as he cannot perform heavy work. Dr Matalani, the plaintiff's occupational physician, reported that the plaintiff was unfit for work as an electrician because of the need to work on ladders, crouch, bend and work in confined spaces. He said that the plaintiff was unfit for all heavy manual work, and was unfit for any work that involved prolonged driving, standing, sitting, walking, squatting or bending.

36 In 2006, Dr Bodel said that the plaintiff was coping reasonably well with part - time security work, and that his ability to find work on the open labour market had been "minimally compromised by the accident".

37 I consider that, but for the accident, the plaintiff would have sought and obtained work as an apprentice electrician, or other skilled or semi - skilled work. In 2003, he worked as an apprentice electrician. I accept his evidence that, at the time of the accident, he was en route to seek such employment. Following the accident, the first work that he attempted was with an electrician. I consider that the plaintiff would have found work as an apprentice electrician (or, failing that, in an unskilled or semi-skilled position) by 1 April 2005, and, thereafter, he would have worked full - time for most of 2005. Based on his earnings when employed prior to the accident and his uncle's offer of employment, he would have earned $600 pw when employed, say $550 pw to allow for possible periods of unemployment.

38 The plaintiff had a medical certificate excusing him from work until October 2005 and, taking into account the physical disabilities associated with his legs, I find that November was a reasonable time for him to recommence work. The plaintiff must have felt physically capable of employment when, in November 2005, he undertook a security course.

39 There is ample evidence that, from mid 2005, the plaintiff was very depressed. Prior to the accident, the plaintiff may have been somewhat directionless, but as a result of the accident and the injuries sustained, he was flung into a state of "depression". I am satisfied that he moved to Brisbane because he was despairing of his life situation and "had to get away". I am satisfied that, having left his parents' residence, to the extent that he felt capable of doing so, he worked to support himself.

40 Since achieving substantial physical recovery from the accident by November 2005, the plaintif's work capacity has been affected, first, by back pain. The defendant is not liable for the plaintiff's back condition.

41 Second, the plaintiff has experienced ongoing problems with his ankles, particularly pain, swelling and some restriction of movement in the right ankle. I accept that the plaintiff is and will remain unable to undertake work that places great reliance on his right ankle, including extended periods on a ladder, extended periods of crouching and frequent movement up and down stairs. Given his restrictions, it is most unlikely that he will find work as an electrician's apprentice or electrician. Further, he cannot undertake heavy work that places significant stress on the ankles.

42 The third impediment to the plaintiff's employment has been his undoubted psychological problems. Recently, the plaintiff's psychological state has begun to improve. If the plaintiff receives appropriate counselling, there is likely to be further improvement, but not complete recovery.

43 I find that, since November 2005, the plaintiff has been capable of earning up to $350 pw (the maximum amount that, in fact, he has earned), but, because of physical and psychological limitations, he has not been capable of earning that much on a continuous basis. I find that he has been capable of earning $300 pw. Because of the back problems, his loss of income is not entirely attributable to the accident. I find that his loss of income has been $170pw ($550 - $300 = $250, say $170).

44 Because of his improving psychological condition, in my view the plaintiff's future economic loss is best compensated by a significant lump sum. The sum needs to be significant, having regard to the plaintiff's working life expectancy of 42 years and the risk of osteoarthritis.

Need for Domestic Assistance

45 In order to recover any sum for assistance, the plaintiff must satisfy the threshold of requiring assistance for 6 months or for 6 hours pw : Harrison v Melhem [2008] NSWCA 67.

46 On discharge from St Joseph's Hospital, the plaintiff was considered to be independent with personal care but to require family support for meal preparation and domestic tasks. His mother was to perform daily dressing changes. He required special equipment for showering. Dr Sachdev conceded that the plaintiff may have required domestic assistance for about three months. I accept that, for 3 months (until mid-May), the plaintiff required 8 hours pw assistance.

47 The plaintiff gave evidence that, for much of 2005, his mother and sister assisted him to shower and dress, and thereafter he was unable to perform pre - accident chores such as lawn - mowing, dish - washing and hanging out washing.

48 By late May 2005, both casts had been removed. I accept that, after May, the plaintiff would have required assistance with heavier household chores and transport to doctors. In other respects, he would have been reasonably independant. I accept that, for the 3 months to mid-August, the plaintiff required 6 hours pw assistance.

Past and Future Out-of-Pocket Expenses

49 The plaintiff spends about $25 pm on Panadeine Forte (but, on doctor's advice, is trying to limit consumption) and $50 - 60 pm on Nurofen (total $18.75 pw).

50 The plaintiff has undertaken some physiotherapy and hydrotherapy, but, because of financial constraints, he has not pursued therapy to the extent recommended. I will allow a sum for physiotherapy and hydrotherapy.

51 In 2006, Dr Abu - Arab, a psychologist, said that the plaintiff required psychological or psychiatric counselling for depression and pain (12 visits at $186 - $220). Although the plaintiff's psychological state is improving, I have no doubt that he would benefit from counselling.

52 Dr Matalani reported that the plaintiff needs to see a general practitioner three times a year and requires rehabilitation, intermittent physiotherapy, gym membership, counselling and vocational retraining. He said that the plaintiff required painkillers at a cost of about $24 pm. With the exception of gym membership and ongoing frequent need to see a general practitioner, the needs identified by Dr Matalani are generally reasonable.

53 I propose to allow the following.

1	Allowance for general practitioner visits	$750
2	Rehabilitation physician (three visits)	$425
3	Hydrotherapy/ physiotherapy "as needed"	$3,000
4	Pain Killers: $24pm = $6pw x multiplier life expectancy (999.8)	$5,998
5	Counselling	$2,000
6	Return to work plan	$6,000
Total, say	$18,000

1	Past out of pocket expenses	$9,504
2	Future out of pocket expenses	$18,000
3	Past economic loss 1.4.05 - 31.10.05 ($550 x 30 weeks) 1.11.05 - 7.8.08 ($170 x 144 weeks)	$16,500 $24,280
4	Superannuation on past economic loss (9% x assumed gross loss of $45,000)	$4.050
5	Future economic loss (including allowance for superannuation)	$130,000
6	Past domestic assistance 12 weeks x 8 hours x $22.64 =$3,260 12 weeks x 6 hours x $22.64 = $2,173	$5,433
Total	$207,767

54 There will be a verdict and judgment for the plaintiff in the sum of $207,767.