Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group... [2022] NSWDC 45 | Case summary

Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group... [2022] NSWDC 45 | Case summary | Zoe

[6]

Incident Report

The incident report indicated that Mr Woolsey received a call from "Pam from Coles" at 12.15pm of 16 October 2018 to attend the accident scene. On arrival he grabbed a chair from Donut King which the Plaintiff used to lean on as he described being in too much pain to move. Mr Woolsey described that the Plaintiff "explained to me that after coming in through the auto doors next to the fruit shop, [he] was headed towards Coles when [he] suddenly slipped over ending up on [his] bum." Mr Azzo also said "my lower back is really sore & my neck. I suffer from lower back problems with bulging discs in my lower back." Part D of the said form under the heading "Body Part Injured" records "neck" and "lower back".
The incident was described as having taken place on terrazzo flooring during a period described as "usual trade." It confirmed that liquid was present. Photos of the area were taken. A photo of the spillage area is reproduced below. [32]
It was put to the Plaintiff that he made no mention to the security guard of landing on his left shoulder. The Plaintiff responded that he could not remember [33] and he didn't think he spoke to security that day. [34] The Plaintiff stated that he returned to the shopping centre the next day or the third day and was given a form and told "circle where your injury is or your, your pain is." [35] The Plaintiff acknowledged identifying his neck and lower back in the Incident Report Form. [36]
It was next put to the Plaintiff that he didn't tell the ambulance he was having pain in the left shoulder. [37] The Plaintiff responded that he could not remember as he had a lot of pain in the neck and back and could not feel other places and can't remember pain in the left shoulder. [38]
Next, the Plaintiff was asked about his attendance at Fairfield Hospital. The hospital notes of 16 October 2018 [39] made a reference to the following: "He presented with neck and back pain following a mechanical fall. His investigations were found to be normal and sent home on oral analgesics." The report further noted: "Patient was walking in the shopping complex Slipped and fallen backwards on the wet floor Has hit the head on the ground Not sure whether he lost his consciousness Complain of neck pain and lower back pain following the fall No headache or vomiting post fall No external injuries or lacerations No chest pain or pelvic pain No history of syncopy or dizziness before fall Able to move all 4 limbs, no numbness of upper or lower limbs No numbness of the perineal area Pain at the lower back when trying to move legs Able to pass urine without difficulty"
The Plaintiff could not remember if he told anyone at Fairfield Hospital about the pain in the left shoulder. [40]
The Plaintiff was cross-examined as to the history of the accident that he gave to various medico legal doctors. It was put to him that he did not tell Dr Bodel on two occasions when he saw him that he landed on his left shoulder on 16 October 2018. He responded "I must of". [41]
It was next put that when the Plaintiff saw Dr Home he did not mention landing on the left shoulder. He responded "yes I have" but then could not recall the first time that he told any doctor he had developed pain in the left shoulder after the slip and fall. He then added that when he saw Dr Bodel he was asked to do an MRI on his left shoulder. He then stated he discovered pain in his left shoulder when Dr Bodel asked him to raise his left shoulder. [42] He said that prior to that he could not feel pain because he took medication in the form of painkillers. [43]
He could not recall undergoing physiotherapy treatment after 16 October 2018 nor massage treatment. When it was put to him that he didn't have any other form of treatment other than medication the Plaintiff responded "I'll take your word, yes, whatever". [44] The Plaintiff could not recall taking medications following 16 October 2018 that he wasn't taking prior to this date. [45]

[7]

Ramiza Sarkis

Ramiza Sarkis worked at Coles from 2005 to August 2021. At the time of the accident she had worked at Fairfield for 8 years mainly working on registers.
Ms Sarkis stated that on 16 October 2018 she worked from around 8am to 5pm on the assisted checkout. She stated she could serve and observe around nine registers. She accepted the assisted checkout area was close to the service area and she would communicate by calling out. [46] She described the layout of the area comprised the assisted checkout and one register next to it and then the service area.
Ms Sarkis stated that in standing, she had a clear view of people entering Coles from the assisted checkout area. On the day in question, she described an elderly man come and ask her to clean some spillage on the floor which was described as shampoo or liquid detergent. She could not leave the checkout area so she told him to go to the service desk and tell whoever was there so that they could take someone to come and clean. She stated that she was told the spillage was at the entry where they used to have the specials and recalled corn and onions being displayed there. Ms Sarkis recalled a person named "Chantelle" was at the service desk and could page someone. [47] Ms Sarkis stated when she worked on the service desk herself most of the time the person did not leave that area but calls for someone to do the cleaning. [48]
Ms Sarkis saw the elderly man go to the service desk and then heard Chantelle paging "call service to front for a spillage to clean". Thereafter, Ms Sarkis continued doing her job. [49]
Sometime later Ms Sarkis stated that she heard someone fell on the floor. She came and looked and saw the Plaintiff on the floor. She said "oh, sugar" to herself and "no one cleaned the spill". She said it took a while because she totally forgot and that she was busy with customers. Ms Sarkis then described "so it was long, long after paging that that incident happened". She was asked to describe how long it was and she stated "I'm not sure. Maybe 20 minutes, more, less. I'm not sure. But it took a long time". She stated she didn't see the Plaintiff slip but saw him already on the floor. [50] She knew the Plaintiff as a customer having seen him in the store before. [51] Later she was asked to clarify how long between the person reporting to her about the spillage and the time the Plaintiff was on the floor stating "more than 20 or less - 25, 20 minutes or less". [52]
Ms Sarkis said that most of the time the shopping centre cleaners would hang around in the food court area and had cleaning equipment with them and wore uniforms. [53]
In cross-examination by Millennium, Ms Sarkis confirmed she was the only person in the assisted checkout area on the day. [54] She accepted it was a busy job. [55] She described speaking Assyrian and Arabic and that customers would approach her because they didn't understand or needed assistance. She couldn't estimate the distance to the service area and conceded that sometimes she could go to the end of the assisted checkout area and call the service attendant to come over when she was not busy but that was not so on this occasion. [56] Ms Sarkis accepted that the paging was of the Coles store and was not Centre wide. [57]
Ms Sarkis stated that Coles had 2 cleaners who also did trolley collections. Sometimes they were out of the store and when paged they were not there or they could be on their lunch break. If there was a spillage in the common area, she stated sometimes they would contact security or call cleaners in the Centre however most of the time the cleaners were nearby and would clean without having being called because they were standing around. [58] Ms Sarkis accepted that the area where the spillage was indicated was in an area where a lot of people would frequently enter and exit Coles. [59] Ms Sarkis accepted that she was aware that people could slip on spillages they were not able to see which was located at the entrance to the shopping centre. She reiterated that she was not following people if they come and clean as she was busy with her own register. [60]
In further cross-examination by Coles, Ms Sarkis admitted providing a statement to the Plaintiff's solicitor on 17 October 2019. She stated she responded to questions and she was not asked if she saw the customer go over to the service area and heard the announcement over the "PA." [61] She recalled what was said over the PA and described it to the effect of "Attention Coles service, can someone come to clean the spill at the front". [62] When it was put to her that she did not know that the Coles cleaner didn't go to clean up the spill she stated that she would have noticed if someone cleaned the spill. She reiterated that she was busy and didn't notice anyone of the cleaners in the area but maintained "I will notice, like if someone come and clean, I will notice that." [63] When asked if she noticed any Centre cleaners in the area in the 20-25 minute period, she stated that she didn't but if someone come and clean she would definitely see them. [64]

[10]

Duty of Care

In Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at p249, Priestly JA (with whom McHugh JA agreed) described the duty of a shopping mall operator as follows: The duty arises from the following factors: the public nature of the premises; the defendant's interest in encouraging the greatest possible number of people to come there; the likelihood of spillage accidents in the common public part of the premises unless very carefully guarded against and the general expectation which in my judgment exists in the community that the persons in control of areas such as that where the plaintiff slipped will guard very carefully against such dangers. The duty upon the persons in charge to which the foregoing factors give rise is to have such a system of watching for the happening of (inter alia) spillages as will enable them to be removed promptly after their occurrence.
In the instant case, the duty ascribed to Millennium is as the contract cleaning provider contracted to the owner. [72]
The Plaintiff and Millennium accepted that the later had a duty to exercise reasonable care to detect and remove potential hazards to patrons in the centre: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [103]. [73]
The Plaintiff accepted Millennium's general position on the scope/content of the duty of care being to take reasonable precautions in the performance of its cleaning duties against foreseeable risk(s) of injury to patrons of the Centre. [74] The Plaintiff identified the issue between the parties being the reasonable precautions to be taken in the circumstances.
Against Coles, the Plaintiff pointed to its lease agreement and the admission of a duty of care to persons on the premises. However, the scope and content of the duty was disputed. [75]
The Plaintiff noted that Coles occupied part of the common area by its presence of trolleys containing fruit being sold on special. It argued that Coles treated the area as part of its business something that was acquiesced in by the landlord. Furthermore, Ms Sarkis' evidence indicated that it was part of her duties to facilitate reporting the spillage to a Coles' employee with a view to having it removed.
The Plaintiff characterised Coles as owing a duty of care to patrons who entered upon the Centre to ensure that all reasonable steps were taken to ensure their safety which included ensuring that reported spills adjacent to the Coles supermarket were reported on, cleaned and or warned of in a timely manner. [76]
Coles accepted that it owed a duty of care to the Plaintiff if only on the basis that he was a prospective customer. [77] Coles accepted that at that time it may have been displaying produce in displays which encroached upon the common area although there was no suggestion that the spill came from these displays.
Coles submitted that its duty of care cannot extend to taking particular measures to monitor the condition of the floor which was the responsibility of Millennium pursuant to its contract with the Centre Managers for comprehensive and regular cleaning and inspection services. [78] Coles submitted that its limited duty can only have required it to take reasonable steps to address risks of harm to its customers entering its store of which was or for some particular reason ought to have been aware. It accepted that the terrazzo floor surface in the common area was slippery when wet and therefore there was a risk of harm that pedestrians walking on the surface and encountering liquid contaminants might slip, fall and sustain injury. [79]
I accept that Coles' duty included taking reasonable care to prevent harm to prospective entrants to its supermarket funnelled through a section of the common area marked by the placement of trolleys with sale items on either side. The evidence of Ms Sarkis establishes that it had assumed some responsibility in that area after the spillage was brought to her attention. The Plaintiff did not specifically contend that the content of the duty required Coles to monitor the area. That matter can be put to one side in circumstances where actual knowledge on the part of Coles is relied on.

[13]

Time of the Spillage

The location of the WAND stations in the Centre are depicted in the diagram below:
From the still shot photographs and CCTV evidence it can be accepted that the location of the accident was somewhere between location K5 (WAND station 02) and location 41 (WAND station 03). So much did not appear to be in issue.
Mr Namrood's last WAND reading at station 02 was at 11:55.22 and thereafter at 11:55.58 at 03 being the entrance of Ware Street to Coles. The Plaintiff contended that the location where the cleaner would have seen the spillage would have been at station 02 as 03 was closer to the Ware Street. [90]
The evidence indicates that after 11:55.58, Mr Namrood left the entrance of Ware Street and made his way to the entrance at Station Street at the other side of the complex. At 12:37:22 minutes he registered at the Station Street entrance (WAND station 01). The Plaintiff contended that the spillage had occurred about 22 minutes prior to the fall being a midpoint between 20 to 25 minutes described by Ms Sarkis.
On this basis, it was argued that there was a casual act of negligence in that Mr Namrood did not notice the spillage at the location marked by WAND station 02 titled "Coles mall."
Millennium challenged reliance on Ms Sarkis' time estimate contending that she was working in a busy area and was not able to precisely and accurately recall the sequence of events in relation to the time period between when the elderly gentlemen reported the spillage to her and when she observed the Plaintiff had fallen. [91] Ms Sarkis conceded that she did not have the means to check the time. [92]
Millennium relied on other parts of Ms Sarkis' evidence to establish that the spillage occurred after Mr Namrood's last WAND reading and prior to the Plaintiff's fall. Ms Sarkis stated that after being advised of the spillage she didn't notice any shopping centre cleaner and if they had been there she would have noticed them. The majority of the questioning relating to observing cleaners after the spillage related to any cleaners from Coles attending to clean up the spill. When challenged as to her observations in cross examination she stated "I will notice like if someone come and clean, I will notice that." When she was later questioned as to observing shopping centre cleaners come past in the 20 to 25 minute period after being advised of the spillage she stated "Definitely if someone come and clean that area I will definitely see them." That is to be contrasted to an observation of seeing a cleaner routinely passing and not cleaning the area. In the circumstances, I see no inconsistency in Ms Sarkis' evidence in not seeing anyone come past and clean the area in the time that elapsed after being notified of the spillage and Millennium's cleaners passing and failing to observe the spillage. Ms Sarkis in chief conceded that there were times where Centre cleaners would be far from her area and across her view. [93]
Millennium submitted whether having inspected the area at 11:55am, Mr Namrood committed a casual act of negligence in not detecting and cleaning up the spillage requires a finding on the balance of probabilities that the spillage was present at the time of the inspection at 11:55am. In this respect, it claimed that the Plaintiff had not discharged his onus of proof. This was because where the competing possibilities are of equal likelihood or choice between them can only be resolved by conjecture such that the allegation is not proved. Secondly, where there is no direct proof as to what occurred, conflicting inferences of equal degrees of probability are not sufficient to discharge the onus of proof and thirdly, a finding on the balance of probabilities involves a finding of a probability greater than 50 per cent. It was submitted whether or not a Court is so satisfied will depend upon the whole of the evidence.
Coles submitted that the WAND reports revealed: 1. It was some 18 and a half minutes before this incident that a cleaner last passed by the WAND point nearest to the incident; or 2. The cleaner passed WAND point at 03 at 12:13.44 only moments before the fall, and missed the spill altogether. Coles noted that the cleaner was not seen in the CCTV in the minute or so after the fall, and there was no evidence suggesting Centre staff appeared soon afterwards. [94]
I accept Mrs Sarkis' evidence. In my view, she sought to give an accurate account that acknowledged what she perceived was a failure to remove the contaminant. Though providing a time range it was accompanied by a description that there was a long time interval. That description is also consistent with her reaction to the fall after she was advised of it.
Applying probabilistic reasoning consistent with Strong v Woolworths [2021] HCA 5; (2012) 246 CLR 182 at [34], I accept that it is more probable than not that Ms Sarkis had been advised of the spillage by 11:54am. Accepting that Mr Namrood passed WAND station 02 at 11:55.22 he did not notice it. To the extent the spillage could have been observed at the entrance at Ware Street being station 03, cleaner 5064 passed it at 12:13:44 and there is no evidence of any observation.

[15]

System of Inspection and Cleaning

The second basis on which the Plaintiff advanced its case was a failure by Millennium to implement the system of inspection and cleaning from 11:55:22.
The Plaintiff noted that Mr Namrood gave some evidence of a system of patrolling for rubbish and spillages in the common areas of the Centre. There was no documentation or evidence from a supervisor or manager stating what system was to clean up spillages or other rubbish that could be productive of a slip and fall. [97] It is accepted that there was no evidence that Millennium was informed of the materialisation of the risk of harm and Mr Namrood himself could not remember the day and Millennium had no incident report. Business records of Millennium indicate Mr Namrood was on duty at the relevant time although it was not clear whether or not he was on a break and whether anyone took over from him.
There is evidence that Mr Namrood had a 40 minute lunch break although the time of it was not recorded. [98] Mr Namrood gave oral evidence that he didn't have a lunch break until 2:30pm. That may be correct as the WAND readings indicate that Mr Namrood left the entrance of Ware Street at 14:29.29 and re-registered at 15:10.21 at the same entrance.
In any event, the Plaintiff drew attention that the other cleaner on duty was not called notwithstanding the Plaintiff was on the ground before the ambulance arrived for about 40 minutes. [99]
Based on the WAND readings, the Plaintiff submitted that Millennium had a system of inspection in the area where the accident occurred that involved inspections on an average between 7 and 15 minutes or on average something like 10 minutes; however in this instance there had been no inspection in the area for 44 minutes between 11:55 and 12:39. [100]
Millennium submitted that Mr Namrood inspected the area where the spillage occurred at 11:55am and having regard to the evidence given by Mr Keryo that was within 20 minutes of the Plaintiff's fall. [101] It was argued that this was consistent with the evidence of Mr Namrood that he inspected the areas, at most, every 20 minutes. [102]
Millennium nonetheless accepted that the WAND records for 16 October 2018 demonstrated that the system of inspection, including the area in question, was for inspections to be carried out less than every 20 minutes and, indeed, significantly less. [103] Millennium accepted that the WAND reports indicated that on average, locations were inspected under ten minutes. [104]
However, Millennium relied on the evidence of Mr Namrood that occasionally it was up to 20 minutes because he had to attend to the toilets. Mr Namrood's evidence was that occasionally the inspection was every 15 to 20 minutes. To the extent that Strong v Woolworths found a reasonable system of inspection was every 20 minutes, Millennium accepted that judgments are authority for propositions of law not fact. [105] Millennium accepted that the actual inquiry is as to the outside parameter of a reasonable system of cleaning and inspection. [106]
Coles pointed out that Millennium's WAND reports reveal that its cleaners could and generally did conduct rotations through the area in something in the order of roughly every 5 to 10 minutes. [107]
Coles submitted that on the balance of probabilities, if this was the same spill it appears likely it was in place for longer than 18 minutes suggesting that either way the relevant cleaner negligently failed to observe or to attend to the spill and possibly twice.
Coles submitted that if the liquid on which the Plaintiff slipped was the same spill reported by the customer to Ms Sarkis and if she was correct in her time estimate between the spill being reported and observing Plaintiff on the floor outside the store, then applying probabilistic reasoning in the manner explained in Strong v Woolworths, the risk of harm existed for a unreasonable period of time and on the balance of probabilities the implementation of an adequate system would have prevented the injury.
Coles submitted that on the balance of probabilities, Millennium's employees negligently failed to detect and address the spill and, in any event, failed to conduct rotations in that area within a reasonable time, of say 10-15 minutes, and had they done so competently the accident likely would have been avoided.
Whatever may have been the experience of Mr Namrood, the task he performed was shared such that it could not be assumed that in attending to the toilets it was envisaged that the area would not be inspected by the co-worker. The WAND identifiers 5064 and 5267 in fact attended WAND stations 03 and 02 during Mr Namrood's absence although there were no visits to station 02 for between 11:55:22 and 12:18:14 and at station 03 between 11: 55:58 and 12:13:44. [108] This was a busy shopping centre as is evident from Exhibit AQ, the evidence of Ms Sarkis and the contents of the incident report.
On the evidence, I accept the submission of the Plaintiff and Coles that the system adopted by Millennium embraced inspection at each WAND station of up to 15 minutes apart and further that such a system was reasonable.
I accept that the evidence supports a failure to detect the spillage either in the inspections that were undertaken or the implementation of Millennium's system of inspection after 11:55:22 and prior to the Plaintiff's fall. Accepting these findings, consideration turns to the precautions identified by the Plaintiff that a reasonable person in Millennium's position ought to have taken for the purposes of s 5B(1) of the 2002 Act.
Effectively, these were to detect the spillage and attend to its removal and failure to implement a reasonable system of cleaning and inspection. I accept that the probability that harm would occur if care were not taken was high and the likely seriousness of the harm was also high. I do not accept Millennium's submission that there was difficulty in detection of the spillage. The burden of the precaution was minimal and no question of social utility arises. It follows that having regard to the matters is s 5B(2) of the 2002 Act, I am satisfied within the terms of s 5B(1)(c) of the 2002 Act that a reasonable person in Millennium's position would have taken the precautions identified.
Coles submitted that the only reasonable basis which could be advanced for a finding of a breach of duty of care on the part of Coles was evidence of Ms Sarkis. Bearing in mind Ms Sarkis recalled a message being relayed on the Coles PA system it cannot be determined what, if anything was done on Ms Sarkis' evidence alone.
Coles argued that it was possible that Coles did take some further step or precaution in satisfactory discharge of its duty. It accepted that such evidence would be within its control and it carried the evidentiary burden. However, the weight attributed to that must be considered in light of the fact that there would not appear to have been any reason for Coles to go looking for such evidence until well after the event and the probability of such evidence in those circumstances must be accepted as remote.
Coles argued the reasonable precaution that should have been taken (accepting Ms Sarkis' evidence) was doing what she did.
The Plaintiff pointed to evidence that Ms Sarkis did nothing other than ask the elderly gentleman to approach the service desk. Ms Sarkis saw the approach and heard the loudspeaker announcement and thereafter no signs were placed, no cleaners from Coles or the shopping centre arrived and 20 to 25 minutes later the Plaintiff fell. It noted that there was no evidence called by Coles that the area was out of their responsibility and no evidence that someone from Coles rang Millennium's cleaners to attend to the spill.
Coles' submissions as to there being no reason to look for evidence until well after the event cannot be accepted. There is correspondence that it was aware of the potential claim by the Plaintiff at least from 5 November 2018. [109] Moreover, Arrow Insurance Adjusting were engaged to investigate the claim reporting on 4 November 2019. [110] There is nothing to suggest that there was a second spillage in the area subsequent to that reported to Ms Sarkis. Nor is there any evidence of anything being done by Coles apart from referral of the elderly gentleman to customer service and the call on the Coles PA system to its cleaners.
Again, the probability that harm would occur if care were not taken and the likely seriousness of the harm were both high. The burden of taking precautions to place signage to warn of the spillage, and to respond either by cleaning up the spillage or calling Millennium's cleaners after being informed of it was hardly burdensome. No question of social utility arises. Accordingly, having regard to the matters in s 5B(2) of the 2002 Act, I am satisfied that within the terms of s 5B(1)(c) of the 2002 Act that a reasonable person in CoIes' position would have taken those precautions particularly bearing in mind the location of the spillage. It follows that breach has been established.

[16]

Causation

Causation is to be determined in accordance with s 5D of the 2002 Act requiring both factual and scope of liability causation to be established.
Millennium conceded that if breach of duty in relation to the casual act of negligence is found then causation would follow as the spillage would have been removed. It made such admission in relation to the breach of system case.
Coles and the Plaintiff submitted that in either case involving Millennium causation pursuant to s 5D of the 2002 Act would be established. [111]
I accept that but for the failure to properly inspect and remove the spillage and but for the failure to implement the described system of regular inspection and cleaning the Plaintiff's fall would not have occurred. It follows causation has been established.
In terms of its liability, Coles submitted that in terms of causation it was unclear what would have happened had Coles taken some other precautions and factual causation under s 5D of the 2002 Act is not established. I do not accept this submission which appears to be at variance with what was stated by the plurality in Strong v Woolworths at [20]. Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. (footnotes omitted)
Coles further submitted that liability under s 5D(1)(b) of the 2002 Act should not extend to the Plaintiff's injury when other parties, Centre management and Millennium were directly responsible for considering and addressing precisely this risk of harm at this place.
Coles did not elaborate on this submission which overlooks its own duty of care and the principles discussed in Wallace v Kam (2013) 250 CLR 375 at [24]-[26]. Moreover, in the somewhat analogous factual circumstance in Strong v Woolworths the Defendant was held liable for spillage in a sidewalk sales area outside of it store with the scope of liability determination held to present little difficulty. [112]
In each instance, I am satisfied of factual and the scope of liability causation within the terms of section 5D of the 2002 Act is established.

[18]

Treatment following Motor Accident

Following the accident, the Plaintiff described that he had pain in his neck, shoulders and could not feel his feet as they were numb. He stated that his legs were shaking and he never experienced these feelings before. [113] After exchanging particulars with Mr Sun, the Plaintiff described driving home and not going to the quotation job that he was travelling to and feeling uncomfortable as well as a bit of pain as well. Specifically, he described not being able to place his right leg on the accelerator or brake and used his left foot instead. [114] When he got home, he stated that he felt mostly pain in the neck and back a little and then sat down and took some Panadol. [115] The following day, the Plaintiff said that he felt a little bit worse. [116] He still experienced pain and numbness and shaking in the same areas and rubbed deep heat on his neck. He could not recall if he went to work that day. [117]
On 3 August 2017, the Plaintiff came to see Dr Nasser Hanna complaining of a sore neck with pain. He was prescribed Panadeine Forte and Augmentin Duo Forte and referred for an x-ray. The Plaintiff described that this was the first medical help that he sought after the accident. [118] He stated that he never thought that it would be that bad.
A cervical x-ray was carried out on 3 August 2017 which was reported on by Dr Christopher Jones as follows: CERVICAL SPINE X-RAY Clinical notes: Neck pain. Injured two weeks ago. Still sore. Findings: No acute fracture, vertebral body compression or significant malalignment is evident. Facet joint alignment and appearances are normal. At the posterior margin of the T1 spinous process, there is a small corticated/ longstanding bone density, possibly associated with prior fracture. There is mild diffuse endplate osteophytic lipping in the mid and lower cervical spine, greatest at C5/6. Disc spaces are generally well maintained, only mildly reduced at C6/7. There is normal atlanto-axial alignment. On the left side, there is moderate bony foraminal stenosis at the C7 nerve root exit canal with potential for nerve root compromise. The other left foramen do not show significant bony stenosis. There is no significant right bony foraminal stenonsis and only minor encroachment at the C7 level. [119]
On 4 August 2017, the Plaintiff was referred by Dr Hanna to Dr Antoine Sanki. [120] On 15 September 2017 Dr Sanki recorded as follows: Visit type: MVA 20TH JULY 2017. ASHFIELD HIT ON THE RIGHT SIDE UTE HIT BY MERCEDES. GOT VERUPSET 1-2 WEEKS LATER NECK PAIN AND LOW BACK PAIN. NUMBNESS LEFT HAND 3RD 4TH FINGERS. REFRIGERATION AIR CONDITIONING. NO PREVIOUS ACCIDENT ULNAR NERVE OK O/E SLUGGISH LEFT B/BRADIALIS. C6 RADICULOPATHY Actions: Diagnostic Imaging requested: CT CERVICAL AND L/S SPINE. [121]
CT scans of the cervical and lumbar spine were carried out on 16 September 2017 and reported on by Dr Joseph Sanki. In relation to the cervical spine, Dr Joseph Sanki stated: There is a minor scoliosis in the cervical spine, convex to the left. Moderate spondylotic change is present in the discovertebral joints, with evidence of loss' of disc height, endplate sclerosis and endplate osteophyte formation. Mild arthritic change is present in the joint between the dens and the anterior arch of the atlas. Mild arthritic change is present in the facet joints. [122] Minor broad-based disc bulge was also noted at C3/C4, C4/C5, C5/C6, C6/C7 and C7/T1.
In relation to the lumbosacral spine, Dr Joseph Sanki reported: The lumbar spine is titled towards the right side. Mild spondylotic change is present in the discovertebral joints, with evidence of loss of disc height, endplate sclerosis and endplate osteophyte formation. Moderate arthritic change is present in the facet joints. Mild arthritic change is present in the sacroiliac joints. [123] Minor broad-based disc bulge was noted at L2/L3, L3/L4, L4/L5, L5/S1. There was mild to moderate broad-based disc bulge at L4/L5. [124]
On 22 September 2017, Dr Antoine Sanki referred the Plaintiff to Mr Elias Khairallah physiotherapist as well as prescribing Tramal SR 100 SR TAB-12h/r 100mg. [125]
On 30 October 2017, the Plaintiff saw Mr Khairallah again. He noted that the Plaintiff suffered from intermittent pain which eases with massage but only temporarily. He recorded that the Plaintiff had a whiplash Gr II and disc injury in the lumbar spine. [126] The Plaintiff gave evidence of treatment including massage/physiotherapy and acupuncture. [127]
Mr Khairallah's clinical notes record a further attendance on 4 November 2017 stating: Pt was hit from the side whilst at a stand still in Strathfield. Pt started to felt pain in his neck and lower back. Intermittent pain which eases with massage but only temporarily no red flags. 5D's clear. [128]
On 12 March 2018, the Plaintiff saw Dr Than Aung. He recorded: History: Requested acupuncture Pain on right shoulder hump and right shoulder for 7 months. Had MVA in ? July- his car had been crushed from right side by another car Pain and limited lifting with the right shoulder for "about 3 Months." Examination: Tender muscle on the right shoulder hump Limited right shoulder abduction or extension. Reason for contact: Right Shoulder pain: Diagnostic Imaging requested: US-Shoulder -right- Painful and limited lifting right shoulder for about 3 months Please rule out Rotator Cuff pathology Letter Created-re Nursing Request Letter printed-re Nursing Request Acupuncture [129]
On 13 March 2018, an ultrasound was reported on in respect of the right shoulder by Dr Siroos Nasibi who concluded that the Plaintiff had a supraspinatus full thickness tear with mild sub-acromial bursitis. [130]
On 14 March 2018, Dr Hanna referred the Plaintiff back to Dr Antoine Sanki. [131] On 15 March 2018, Dr Antoine Sanki referred the Plaintiff to an ultrasound of the right shoulder with an injection of cortisone in the sub-acromial bursa. [132]
On 22 March 2018, the Plaintiff was seen by Dr Than Aung and it was noted that he was taking Voltaren and acupuncture was provided. [133]
On 26 March 2018, an ultrasound guided injection in the right sub-acromial bursa was carried out by Dr Joseph Sanki. [134] The Plaintiff is recorded as having told Dr Susan Arnold (occupational therapist qualified on behalf of the Defendant Mr Sun) that his right shoulder pain settled after this injection. [135]
In March 2018, the Plaintiff stated that he stopped work. [136] He stated that it was too hard because of the pain. He gave evidence that he used three different mechanics to help him out to finish the jobs for people pursuant to warranties. [137] Apart from this he stated that he did not undertake any further work. [138]
On 29 March 2018, the Plaintiff was referred by Dr Hanna back to Dr Antoine Sanki noting that the Plaintiff was complaining of back pain and had a right shoulder injection and was still suffering pain. [139]
On 5 April 2018, the Plaintiff saw Dr Hanna and was prescribed Lyrica and Panamax. [140] On 09 April 2018, the Plaintiff saw Dr Hanna who recorded muscle stiffness. Rest, heat and Mersyndol were prescribed. [141] On 11 April 2018, the Plaintiff saw Dr Antoine Sanki who reported that in his opinion the disc bulges of the cervical spine were as a result of heavy work and made worse by the recent injury. [142]
On 27 April 2018, the Plaintiff saw Dr Antoine Sanki and he recorded: Visit type: Surgery consultation TOO MUCH PAIN NECK AND BACK + HEADACHE. STOPPED WORKING AS REFRIGERATION TECHNICIAN ON CENTRELINK SINCE FORTNIGHT. PAIN RT SHOULDER ON LYRICA 75MG. O/E RT BICEPS AND BR OK, LEFT BICEPS BVERY WEAK. LEFT B/E OK. NUMBNESS LEFT THUM AND INDEX. PAIN LOWER L SPINE Actions: Diagnostic Imaging requested: NUCLEAR SCAN LUMBAR SPINE Diagnostic Imaging requested: MRI - Spine - Cervical [143]
On 1 May 2018 the Plaintiff had an MRI of his cervical spine. Dr Rau Popuri concluded: There is narrowing of right exit foramen at the C3/4 level and left exit foramen at the C4/5, C5/6 and most marked at the C6/7 level. Therefore on dynamic movement there may well be irritation of the corresponding exiting nerve roots, No canal stenosis is seen at any level. [144]
On 7 May 2018, the Plaintiff had a bone scan. Dr Joseph Sanki reported arthritic change to the vertebral column, AC Joints, the glenohumeral joints, the hands and wrist, the knees, the left ankle and the feet. He proceeded to conclude: Arthritic change is present in the sites described above. The increased tracer uptake in the greater tuberosity of the right humerus is probably due to an abnormality involving the rotator cuff. An x-ray and ultrasound of the right shoulder may be of value for further assessment. [145]
On 15 May 2018, the Plaintiff saw Dr Balsam Darwish (neurosurgeon and spinal surgeon) who noted that the MRI scan of the cervical spine of 7 May 2018 showed disc bulges at C5/C6 and C6/C7 levels but no significant nerve root or cauda equina compression. He arranged an MRI of the lumbosacral spine to investigate lower back pain and paraesthesia in the legs. [146]
On 20 May 2018, the Plaintiff had an MRI of the lumbar spine. Dr Niranjan Ganeshan reported mild discovertebral changes with mild canal narrowing at L4/5 without cause for radiculopathy ascertained. [147]
On 25 May 2018, the Plaintiff was placed on a care plan for patients with chronic medical conditions and complex care needs. Referrals included Rehab Solutions Australia (physiotherapy), Ms Steffani Clayton (Dietitian), Dr Antoine Sanki (Surgeon), Dr Than Aung (Acupuncture) and Dr Balsam Darwish (Neurosurgery). [148]
On 4 June 2018, the Plaintiff saw Dr Darwich who noted continuing complaints of lower back pain radiating to the right leg. Noting the result of the MRI of 21 May 2021 and the bone scan of 7 May 2021, he advised the Plaintiff to continue with physiotherapy to the neck and back and prescribed Mobic 7.5mg twice a day to take as needed. [149]
On 29 June 2018, the Plaintiff saw Dr Antoine Sanki who noted pain in the neck and back, noisy ears, dizziness and blurred vision when he suddenly moved sideways. Dr Antoine Sanki observed that Dr Hanna gave injections to help sleep and turning in bed was worse. He noted that the Plaintiff had been seeing Dr Darwish but he could not do anything and could only be treated by physiotherapy. [150]
On 4 July 2018, the Plaintiff saw Dr Hanna complaining of neck pain. [151] The medical certificate completed the same day noted the Plaintiff had neck pain and paraesthesia with an uncertain prognosis. Symptoms were pain, paraesthesia and stiffness. He was certified unfit for work from 2 June 2018 to 3 August 2018. [152] On 9 July 2018, Dr Antoine Sanki diagnosed the Plaintiff to be suffering from cervical and lumbar radiculopathies with headaches. He opined that the Plaintiff needed to continue with physiotherapy and exercises to cervical and lumbar regions of his spine and to continue taking analgesic agent, Lyrica. He stated that the Plaintiff was not fit to do refrigeration work which required bending and twisting of the cervical and lumbar regions. He was not sure when the Plaintiff could return to pre-injury work but felt a 50% chance in 2-3 years. He stated symptoms could improve with cortisone injections. [153]
On 12 July 2018, the Plaintiff saw Dr Hanna complaining of pain with bending, squatting and stiffness. It was noted that he may require physiotherapy. [154]
On 17 July 2018, the Plaintiff saw Dr Hanna complaining of muscular spasm and back pain in the lumbar region. He was prescribed Mersyndol. [155] On 18 July 2018, the Plaintiff saw Dr Hanna who recorded "back, neck pain, on opt med, moderate activity and moderate exc heat". [156]
On 23 July 2018, Dr Antoine Sanki recorded: SEVERE LOW BACK PAIN ON STANDING AND LIFTING AND WALKING. FEELS ELECTRICITY GOING THROUGH HIS BACK CANT CLEAN THE HOYUSE HIS MOTHER WITH CANCER COMES TO HELP. ALSO POOR SEX AND POOR SLEEP SDUE TO BED [157]
On 13 August 2018, the Plaintiff saw Dr Hanna who referred him to Dr Antoine Sanki noting neck, back pain and stiffness. [158] On the same day, the Plaintiff saw Dr Sanki who recorded: Surgery Consultation Rec abscess rt gluteal region. Urine dribbles with severe back pain. Low back pain ++ cant stand with legs close Actions: Pathology requested: psa urine m c ans Diagnostic Imaging requested: u/s pbladder
On 14 August 2018, an MRI of the right shoulder was reported on by Dr Ramu Popuri. [159] It was recorded in respect of the right shoulder as follows: MRI Right Shoulder Minor insertional tendinopathy in the subscapularis tendon. No tears are present. There is a full-thickness tea in the insertional aspect of the supraspinatus tendon measuring 2.5cm in coronal dimension and in 1.3cm dimension. No fatty atrophy of the muscle belly is seen. MRI Left Shoulder There is a focal high grade undersurface partial-thickness tear in the insertional aspect of the supraspinatus tendon measuring 0.4 x 1.1 cm. Early AC joint degenerative change is present. [160]
On 24 August 2018, Dr Hanna reported to the Plaintiff's then solicitor that he had much pain and the Plaintiff showed slow improvement but had not made full recovery. [161]
On 25 August 2018, the Plaintiff saw Dr Hanna complaining of neck pain and stiffness. Voltaren was prescribed. [162]
On 31 August 2018, the Plaintiff saw Dr Antoine Sanki who reported: PTSD. SEEING ALLEN HOANG. RT OCCIPITAL PAIN. LYRICA. [163]
On 11 September 2018, the Plaintiff saw Dr Than Aung and requested acupuncture for pain on nape of the neck. It was noted that he was taking too much tablets and acupuncture was performed. [164]
On 17 September 2018, the Plaintiff saw Dr Antoine Sanki who recorded: IMPROVING ON LYRICA, BUT STIFFNESS NECK IS LIGHTENING PAIN. OCCIPITYAL PAIN RADIATING TO THE RT UPPER ARM AND UPPER LIMB.. LOSES CONTROL IN THE BATHROOM AND SHITS IN THE TOILET. TO DO PHYSIO IN THE HOSPITAL [165]
On 25 September 2018, the Plaintiff saw Dr Soheir Sanki who recorded: Visit type: Surgery Consultation ANXIETY AND DEPRESSION SUE TO PAIN CERVICAL SPINE DUE MVA Reason for contact: Depression [166] The notes record a GP Mental Health Treatment Plan was created and Endep 25mg was prescribed.
On 3 October 2018, the Plaintiff saw Dr Yaser Mohammad whose notes record: Visit Type: Surgery Consulation Client was seen. He had a MVA on 20/07/2017. He was tearful during the initial assessment and he has sustained ongoing pain and flashbacks. His mother has Leukaemia. He is taking Endep & Lyrica as prescribed by her treating Dr. Counselling provided Plan: Relaxation and mindfulness exercise [167]
On 15 October 2018, the Plaintiff saw Dr Antoine Sanki who recorded that the right shoulder and neck was worse and it was proposed to refer to Dr Medhat Guirgius. [168] There was no evidence that this was followed through.

[20]

Treatment following Slip and Fall

Following the slip and fall of 16 October 2018, the Plaintiff was taken by ambulance to Fairfield Hospital approximately 40 minutes later. The clinical records disclose that he was complaining of pain in the neck and lower back. The CT of the brain showed no significant abnormality. The CT of the cervical spine showed no acute fractural dislocation. The X-ray of the cervical spine showed that mild lower cervical degenerative changes with anterior osteophytes discs phases were preserved. Anterior lateral osteophytes were also noted. [172]
Thereafter, the Plaintiff came under the care of his general practitioner Dr Hanna and Dr Antoine Sanki.
On 17 October 2018, the Plaintiff was seen by Dr Mohammad when an NDIS form was completed and relaxation was noted to be provided. [173]
On 25 October 2018, the Plaintiff was seen by Dr Antoine Sanki who recorded: Visit Type: Surgery Consultation FALL IN COLES AT FORUM ON THE 16TH OCTOBER 2018 FEW STEPS IN FRONT THE ENTRANCE. WET FLOOR MILK? OR CREAM FELL ON LEFT SIDE HIT HIS HEADF HURT NECK AND LUMBAR SPINE PAIN. FEELS HIS BACK IS SPLITTING/ RT HAND IS SWOLLEN FOR 2/12. NUMBNESS ALL THE RIGHT THIGH AND LEFT THICK LATERALLY. ROM DIMINISHED DIZZY [174]
A bone scan carried out on 29 October 2018 is reported to have found normal soft tissue uptake over the body. Uptake in the upper and lower limbs is mildly increased in the acromioclavicular and glenohumeral joints and the patellofemoral compartments of the knees. [175]
On 5 November 2018, the Plaintiff saw Dr Antoine Sanki again who recorded: Visit type: Surgery Consultation apparently the liquid was a shampoo, when he fe;ll he supported himswelf withwith his extended right wrist. rt wrist is painful . rom is full. for xray bone scan degenerate changes whole spine. no fracturesaz. neck pain ?disc for mril panadol osteo Actions: Diagnostic Imaging requested: xray right wrist [176]
On 12 November 2018, the Plaintiff saw Dr Antoine Sanki who recorded: Visit type: Surgery Consultation: UNABLE TO DRIVE HIS CAR. SWELLIN SOFT TISSUE RT HAND. ON XRAY Reason for contact: aggravated deg changes hand [right] cervical and lumbar radiculopathies aggravated deg changes hand [right] [177]
On 21 November 2018, the Plaintiff saw Dr Mohammad again and counselling was provided. [178]
On 30 January 2019, the Plaintiff saw Dr Mohammad who noted the NDIS application had been declined and the Plaintiff was under a lot of psychosocial pressure. Counselling was provided. [179]
On 1 February 2019, the Plaintiff saw Dr Hanna who recorded: presented today co suiccidal thoughts, sad, feling undrpressur.,, sad sick mother (sic) A referral was made recorded as "DR L. LIVERPOOL" [180]
On 4 February 2019, the Plaintiff saw Dr Hanna who recorded: attended I mhu, seen psychiatrist, psychologist, rx cymbalta Actions: prescription added: Cymbalta EC capsule 30 mg od [181] Cymbalta was described as an anti-depressant.
On 6 February 2019, the Plaintiff was referred to the Liverpool Hospital Pain Clinic whilst on 9 February 2019 Dr Hanna provided counselling [182]
On 20 March 2019, the Plaintiff saw Dr Mohammad who provided counselling. It was noted that the Plaintiff was "commenced on Cymbalta 30 with a slow but steady progress." [183]
On 1 April 2019, following referral by Dr Antoine Sanki the Plaintiff had an ultrasound of the right shoulder. Dr Vincent Caristo reported that there was a complete tear of the supraspinatus tendon associated with features of bursitis. [184]
On 4 April 2019, Dr Antoine Sanki referred the Plaintiff to see Dr Chandra Davè (orthopaedic surgeon) about his right shoulder complaints. [185]
In a report dated 7 May 2019, Dr Davè did not record the accident of 16 October 2018. He recorded the Plaintiff's arm (presumably the right) was in a sling and was unable to move his arm beyond 20 degrees forward flexion either actively or passively at the consultation. He noted that in the ultrasound report of 1 April 2019, it was reported that there was a complete tear of the supraspinatus tendon associated with features of bursitis and clinical correlation was suggested. [186] Dr Davè was of the view that the Plaintiff would need an MRI scan. He suggested that he keep his sling off, maintain mobilisation and he should keep his shoulders supple. He also reported that the Plaintiff may need to see a neurologist as far as numbness is concerned. [187]
On 24 April 2019, the Plaintiff saw Dr Yaser Mohammad in relation to his ongoing "neck/shoulder pain which exacerbate his low mood. Counselling was provided. [188] Further counselling was provided on 22 May and 9 July 2019. [189]
On 11 July 2019, the Plaintiff saw Dr Antoine Sanki who recorded: right side of body no feeling. rt hand very weak. rt lower limb gives way. seen by Bodel finds left shoulder poor flexion. to see dave [190]
On 14 August 2019, the Plaintiff had an MRI of both shoulders. In relation to the right shoulder, Dr Ramu Popuri reported: Conclusion: Minor insertional tendinopathy of the subscapularis tendon and infraspinatus tendon is seen. There is a full-thickness insertional tear in the supraspinatus tendon measuring 2.5 x 1.3 cm. No fatty atrophy of the muscle belly is seen. [191] In relation the left shoulder, the report concluded: Conclusion: There is a focal high grade undersurface partial-thickness tear in the insertional aspect of the supraspinatus tendon measuring 0.4 x 1.1 cm. Early AC joint degenerative change is present. [192]
Dr Davè stated upon review of the MRI his recommendation was to have the right shoulder repaired noting that the Plaintiff was seeing Dr Teychenné (neurologist) regarding numbness and possible nerve injuries to the arm. This would need to be evaluated before operating. [193]
On 5 August 2019, the Plaintiff saw Dr Antoine Sanki who noted that he was very anxious, depressed and anxious and referred him to Dr Samir Benjamin. [194] That treatment is discussed below.
On 9 September 2019, the Plaintiff saw Dr Antoine Sanki who recorded: UNABLE TO STRETCH AND ABDUCT HIS RT HAND FINGERS, HE DROPS THINGS. RT ½ HIS BODY NO FEELINGS. [195]
On 18 September 2019, the Plaintiff saw Dr Mohammad again. He noted that the Plaintiff's ongoing pain exacerbated his low mood. Further counselling was provided. [196]
On 30 October 2019, the Plaintiff saw Dr Davè who recorded that the right shoulder continues to be weak and have problems. He related this to the motor accident and reiterated his recommendation to have it repaired and has sought approval from the insurer. However, in the meantime, gentle mobilisation to maintain range of motion and his strength was advised. [197]
According to the list of out of pocket expenses, the Plaintiff saw Dr Mohammad again for counselling and related matters on 12 and 26 February 2020, 1 and 22 April 2020 and 17 June 2020. On the last occasion it was proposed that he see a psychiatrist being a matter discussed from [212] below. [198]
The Plaintiff gave evidence in chief that prior to the slip and fall he walked with a leg ache and used to drag his leg. His right shoulder was still in pain as was his neck and back. However, his left shoulder was good he although he had small numbness in the index finger of the left hand. [199]

[21]

Dr Paul Teychennè (Neurologist)

The Plaintiff first reported to Dr Paul Teychennè on 20 June 2019. [200]
A history was obtained that the Plaintiff had been involved in a motor vehicle accident in 2000 when he was involved in a head on collision at 60kph. It was recorded that he sustained a whiplash injury but did not have any neck pain or neurological deficit as a result of that accident.
With the accident of 20 July 2017 the history was that the Plaintiff's head was thrown laterally to the left and to the right and the right shoulder hit the door panel. The Plaintiff was noted to have numbness within the sole of the left and right foot and his legs were tremoring. They felt wobbling though they were like jelly and he had weakness in both legs for ten minutes. He noted immediate pain over the right side of the neck across the right suprascapular region at the intensity of 2/10 which gradually got worse reaching intensity of 7/10 two weeks after the accident.
Dr Teychennè commented that the history of immediate neck pain associated with weakness in the leg was quite consistent with an incomplete cervical cord lesion at the time of the accident.
Two weeks after the accident Dr Teychennè recorded that the Plaintiff noted that he had a stiff neck and developed pain with more movement of the neck. He noted significant restriction in movement which induced dull pain over the mid-cervical spine from the mid-cervical spine form C1 down to T3. Dr Teychennè recorded pain extending from the right para-cervical region over the right suprascapular region down the lateral aspect of the right arm to the right elbow.
For two years following the accident the Plaintiff reported constant pain over the upper thoracic spine extending up into the cervical spine from T2 to C1. This was at intensity of 7-10/10 when severe and dropping to 3-4 /10 when taking analgesia. Dr Teychennè recorded the Plaintiff suffering electric stab pain which he describes as zaps lasting about one second and then extending down the lateral aspect of the right upper arm. There was also dull pain in the left suprascapular region when he abducts his left arm at the left shoulder. The intensity cleared when he lowered his left arm.
Six months after the motor accident the Plaintiff was recorded as noting numbness down the dorsolateral aspect of the left arm extending into the left index finger. From the time of the accident he noted that there was a dull pain over the lower lumbar spine not the left and right para-lumbar region. If flexed over he would also develop a sharp pain extending into the right buttock and posterior right thigh. This was noted about two weeks after the accident. He began to notice throbbing headaches that could last two to three hours six months after the accident. The Plaintiff also reported swelling in the right hand and he dropped objects out of his left hand. Following detailed examination and testing Dr Teychennè opined that the Plaintiff had significant whiplash and evidence of an incomplete cervical cord lesion.
On 10 November 2019, Dr Teychennè stated: I reviewed the MRI scan of the cervical spine which showed degenerative disc osteophyte complexes particularly at C6/7. The disc osteophytes appeared to be abutting on the cord. That is close the cord at C6/7. I considered this put Mr Azzo at risk of an incomplete cervical cord lesion as a result of a whiplash injury to the neck which by description appears to have occurred at the time of the accident on the 20th July 2017. [201]
Dr Teychennè later added: An MRI scan of the cervical spine did not show any macroscopic change within the cervical spinal cord but this is not unusual in my experience when assessing incomplete cervical cord lesions. Less than 10% of MRI scan show evidence of T2 hyper intensity and this is consistent with the fact that the damage is predominantly microscopic with axonal swelling and demyelination with the corticospinal tracts an minor haemorrhages with the central spinothalamic tracts… It was apparent on my assessment of Mr Azzo that he had evidence of a central incomplete cervical cord lesion predominantly occurring as a result of the accident on the 30th September 2019. He did not appear to have any evidence of a central cord lesion as a result of the earlier accident in 2000. [202]
Dr Teychennè noted that on 16 September 2019 the Plaintiff burnt the fingers on his right hand and didn't feel any burning heat when he initially lifted the lid of the pot. He described this as consistent with a central incomplete cervical cord lesion which would affect the spinothalamic pathway through which the sensation of heat is transmitted. [203]
On 17 October 2019, Dr Teychennè formed that view that the Plaintiff had evidence of a frozen right shoulder with the ultrasound showing a full thickness tear of the right supraspinatus muscle and mild sobrcoval bursitis. Whilst noting Dr Darvenzia's findings discussed below, he noted that his own examinations of the Plaintiff were consistent and did not show any variability or functional presentation. [204]
Dr Teychennè was of the view that the Plaintiff did not require further investigation of the spinal cord but may require treatment of the tear in the right supraspinatus tendon by an orthopaedic surgeon. He opined that he was not suited for work that required significant physical work such as pushing and pulling, lifting, persistent standing or persistent walking. In the circumstances, he conceded that the Plaintiff was no longer employable in any form of physical work. [205]
On 10 November 2019, Dr Teychennè assessed the Plaintiff as having a 37% whole person impairment. [206]
On 30 January 2020, the Plaintiff reported to the National Disability Insurance Scheme although it appears that he last saw the Plaintiff on 17 October 2019 The accident of 2000 he described as "consistent with a whiplash injury resulting in spinal shock." He recorded that the Plaintiff noted pain from the right para-cervical region over the right suprascapular region down the lateral aspect of the right arm to the right elbow. Further, it was recorded that the Plaintiff developed a stiff neck and 2 years after the accident he noted constant pain over the upper thoracic spine extending into the cervical spine T2 to C1 and electric stabs of pain over the lateral aspect of the right upper arm. Six months later the Plaintiff is recorded as noticing that he had numbness down the dorsal lateral aspect of the left arm into the left index finger. Dr Teychennè concluded on this occasion that "as a result of the whiplash injury which he sustained in two accidents that he had evidence of an incomplete cervical cord lesion."
Dr Teychennè reported that whilst the MRI of the cervical spine had shown a narrowing of the right exit foramen at C3/4 and left exit foramen at C4/5, C5/6 and most marked at C6/7. This was considered to potentially result in a nerve root irritation. He noted: While the MRI scan of the cervical spine did not show macroscopic cord damage this did not exclude microscopic damage. The current MRI scan techniques are not sensitive enough to pick up microscopic damage within the spinal cord which is the predominant damage resulting from an incomplete cervical cord lesion. Microscopically there is evidence of axonal swelling and demyelination within the corticospinal pathways associated with micro haemorrhages within the central spinal cord. Thus the patients develop upper motor neurone weakness and have evidence of spinothalamic weakness. The effects of the diagnosis will be permanent. That is the clinical deficits for an incomplete cervical cord lesion in my experience are permanent. There is not any specific treatment for an incomplete cervical cord lesion but at the time of my last assessment he was stabilised. There is not any known available or appropriate evidence based treatments that would likely remedy the impairment. I considered he was fully stabilised to do a baseline function assessment. His incomplete cervical cord lesion is a permanent deficit. He has not shown evidence of progression but in my experience a small percent of patients may over the years show evidence of progression of the spinal lesion. The tear of the right supraspinatus tendon may be amenable to surgical repair. [207]
Thereafter, the Plaintiff continued to see Dr Teychenné. Dr Teychenné produced reports for the following dates: 2 February 2020, [208] 3 April 2020, [209] 7 April 2020, [210] 15 October 2020, [211] 16 November 2020, [212] 21 December 2020, [213] 22 December 2020, [214] 12 February 2021, [215] 18 March 2021, [216] 22 April 2021, [217] 4 June 2021, [218] 17 June 2021 [219] and 5 August 2021. [220]
What followed was a wide range of complaints of worsening symptoms and a variety of tests. EMG nerve conduction test on upper limbs were essentially normal. Brain stem evoked response was normal, visual evoked response were normal. EMG nerve conduction of lower limbs was normal. Stimulation of left and right median nerve at wrist were symmetrical and there was no evidence of spinal lesion on somatosensory testing. Lower extremity short latency somatosensory evoked response found the latencies were symmetrical and again no evidence of focal posterior spinal lesion. [221]
On 18 March 2021, Dr Teychenné reported that the Plaintiff noted weakness in the right arm and leg and that he was becoming weaker down the right side. This was noticed following the motor accident. Complaints were recorded of electric shocks in the right paracervical region, dull pain over the back of the neck, often associated with numbness down the left arm, sharp headaches often associated with neck pain, right leg giving way without warning, numbness on the right buttock down the lateral aspect of the right thigh and right ankle stiffness. On examination Dr Teychennè noted that the Plaintiff has a flail right arm and right leg consistent with a central incomplete cervical lesion. Bladder urgency, incontinence and an inability to obtain erections over the past twelve months were noted. [222]
Following examination and EMG muscle sampling Dr Teychennè stated that the findings were consistent with involvement of the L5/S1 spinal segment but were more likely due to a central incomplete cord lesion. [223]
On 22 April 2021, Dr Teychennè reported that a review of the CT of the cervical spine indicted that at C6/7 that there was a disc bulge which is moderate posterior centrally, on the left side posterolaterally. The disc appeared to be displacing the thecal sac posteriorly on the left side. He described the appearances as suspicious at the presence of cord flattening at C6/7. The central and left portions of the spinal canal were stenosed as a result of a disc osteophyte complex. He stated that there may have been some evidence of progression over the posterior of time that he had assessed the Plaintiff. [224]
On 17 June 2021, Dr Teychennè noted: EMG muscle sampling with the right peroneus muscle indicated a very marked decrease in recruitment pattern with a marked reduction in the motor unit action potential amplitude less than 0.5mV. He had a very marked decrease in recruitment pattern within the left and right FHB muscle with a marked reduction in the motor unit action potential less than 0.5 mV. He had a moderate decrease in recruitment pattern within the left peroneus longus muscle. [225]
Accordingly, Dr Teychennè arranged for a further MRI of the full spinal cord particularly at C6/7. [226]
On 5 August 2021, Dr Teychennè reported on an MRI scan stating: …. The major finding is the bulging of the disc at C5/6 and the 10% flattening of the left hemicord. That in my experience is consistent with the situation where the clinical examination indicates an incomplete central cervical cord lesion. As is usually the case the clinical examination if done in a detailed manner is far more significant in indicating the diagnosis than MRI scan. MRI scans may show cord flattening but only a detailed clinical examination can indicate the significance of cord flattening in producing clinical signs. It is apparent that Mr Azzo has on clinical examination quite a significant incomplete central cervical cord lesion as I have indicated in my letters. [227]

[22]

Dr Paul Darveniza (Neurologist)

The Plaintiff saw Dr Paul Darveniza on 20 September 2019 and he reported on 3 October 2019. [228] Dr Daveniza noted that the Plaintiff complained of chronic neck pain radiating to the right shoulder, right shoulder pain and low back pain radiating to the left buttock and aggravated by activities especially heavier ones. He noted that he could not sit or stand comfortably for any length of time and could not lie on either shoulder to sleep at night. He noted that in the morning his neck has improved but the pain soon intensifies with mobilisation. [229] Since the second accident, he recorded that the Plaintiff had given up fishing and stopped recreating and socialising. He noted that in addition to aggravating his previous injury he also injured his left shoulder in the second accident. Whilst the Plaintiff remained independent in person care he was unable to do any heavy household or yard chores. He noted that he had a tendency to tilt to the right-hand side when walking and developed some erectile dysfunction which was attributable to the medication. Dr Daveniza recorded the Plaintiff slept poorly because of his pain. There was marked painful restriction of neck movements in all directions especially to the right including tilting and rotation and there was some paraspinal muscle spasm. There was marked variability of effort in the right upper limb precluding accurate assessment of power. However, there was no objective sensorimotor or reflex disturbance in the limbs.
Range of motion in the right shoulder was limited although function of both upper limbs was better when under casual rather than formal observation. He attributed 90% of the neck, shoulder and low back pains to the original accident and 10% to the more recent fall plus 100% to the recent fall regarding his left shoulder.
With respect to the right shoulder, Dr Darvenzia noted the findings of ultra sound of 1 April 2019 and the bone scan of 29 October 2018. He also noted the MRI of the cervical and lumbosacral spines reported respectively on 1 and 21 May 2018.
Dr Darveniza stated that the Plaintiff was permanently unfit to return to his usual occupation of refrigeration technician and that it was very unlikely that he would be able to find gainful employment in the open labour market.
In his subsequent report dated 1 October 2020, Dr Darveniza referred to what was seen on 3 October 2019 and noted that there had been an inexplicable deterioration in the clinical state of the Plaintiff historically and on examination.
On examination, it was noted that he plodded on a very wide base using a four pronged walking stick unable to attempt tandem gait or stand with his eyes closed. He noted that he was unable to get onto the consultation couch for a detailed examination and still had marked painful restriction of neck movements in all directions especially to the right without paraspinal muscle spam. There was also a marked loss of function in the right upper limb with his right hand clenched with marked variability of effort but no objective sensorimotor or reflex disturbance was detected. Range of motion of the shoulders was at least as restricted as previously recorded. Dr Darveniza recorded that when the Plaintiff was seen by Dr Teychenné in the past he had some left hemisensory signs which weren't present in October 2019, and since that date he now has subjective right hemisensory signs to all modalitities splitting the midlines. Overall, he reported that there appears to be a marked functional overlay in his presentation making assessment impossible and totally unreliable including whole person impairment. [230]

[23]

Dr Samir Benjamim (Consultant Psychiatrist)

On 21 July 2020, the Plaintiff saw Dr Samir Benjamin on referral from Dr Hanna. In his report of the same day, Dr Benjamin recorded that the Plaintiff complained of persistent low mood, frequent insomnia, irritability and poor frustration and tolerance. He also felt restricted in a range of activities which he was able to engage in. Dr Benjamin recorded that the Plaintiff resided with his elderly mother who was able to receive regular home care assistance although the Plaintiff occasionally cooks simple meals and was able to attend doctor appointments or similar commitments but was mainly housebound. He was prescribed Cymbalta 30mg capsules which had been increased to 60mg and reported no significant benefit from the medication. He had also been described Lyrica 75mg capsule for his neck and back pain which was also unhelpful. He noted that the Plaintiff was pre-occupied with his shoulder and neck pain. Dr Benjamin found that the Plaintiff's presentation was consistent with an adjustment disorder and depressed mood with a differential diagnosis which included major depressive disorder. He counselled the Plaintiff and engaged in Cognitive Behavioural Therapy with a focus on psychoeducation. [231]
On 21 October 2020, the Plaintiff saw Dr Benjamin again at which time he reported some improvement in his mood and sleep since he commenced on Cymbalta, Seroquel and Lyrica. However, it was noted that he continued to feel distressed by his chronic physical pain including his neck, back and right arm pain. He also felt restricted in the range of activities which he was capable of performing and complained of side effects from the medications particularly constipation. The Plaintiff was counselled and engaged in Cognitive Behavioural Therapy with a focus on pain management and maintaining physical activity.
The Plaintiff gave evidence that he wasn't presently having any treatment from any psychiatrists of psychologists as he can't afford it. [232]

[24]

Dr James Bodel (Orthopaedic Surgeon)

The Plaintiff saw Dr Bodel at the request of his solicitors on 24 May 2019. Dr Bodel noted that the Plaintiff presented with complaints of pain at the base of his neck and over the top of the right shoulder, complaints with head down posture or use the arms overhead, sleep disturbance and pain in the lower part of the back aggravated by prolong sitting, bending, twisting or lifting. [233] Upon examination, tenderness in the trapezius muscles at the base of the neck was detected. On the right side there was restricted range of neck flexion, extension and rotation in all directions with most restriction on the left. There was a restricted range of shoulder movement on the right and a slight restriction on the left with impingement in both shoulders but no instability. Tenderness was noted at the lumbosacral junction and guarding on the right side as the Plaintiff reached forward in flexion with his hands to the knees. There was also back ache and a reduced range of lateral bending to the left. Straight leg raising was 70º on both sides and there was no evidence of nerve root irritability in the lower limbs. [234]
Dr Bodel was informed of the 2000 motor accident recording that there was no frank injury to the head, neck or shoulders and that the Plaintiff completely recovered. [235]
Noting the medical assessment by Dr Home on 10 September 2018, Dr Bodel opined that the Plaintiff had deteriorated based on his presentation.
Dr Bodel found disc pathology in the cervical spine with significant aggravation of that disc pathology by the motor vehicle accident. Dr Bodel conceded that in part the appearances are longstanding due to degenerative change, however, he strongly suspected there has been some additional structural injury in the C5/6 or C6/7 leading to continuing complaints. However, he described the MRI of 1 May 2018 as showing "minor findings." There was also rotator cuff pathology of the right shoulder and the ultrasound suggested a full thickness tear. He noted that there was quite a restriction in the shoulder movements on the right side. Whilst there were some slight restrictions on the left side he noted that there was no specific injury to that side as far as he was aware of the motor vehicle accident or the fall. [236] There was also mechanical symptoms in the back associated with disc pathology at the lumbosacral junction but no nerve root compromise in the arms or legs.
Dr Bodel stated that an MRI scan with gadolinium was necessary to determine the status of the labrum in order to optimise the repair that is required. He did not see any need for surgery in the neck or back. It does not appear that Dr Bodel had the opportunity to view the MRI dated 14 August 2019 by Dr Ramu Popuri at [175]. Nevertheless, Dr Bodel stated that he viewed the injuries as the result of the motor vehicle accident of 20 July 2017. [237]
Dr Bodel did not believe that the Plaintiff was fit for pre-injury duties as a refrigeration mechanic. In his view, the injury at the Centre at Fairfield probably further aggravated his underlying pathology. [238] Accepting that the Plaintiff had a 15% whole person impairment overall, he estimated that slip and fall would have caused some additional structural damage leading to the current level of impairment to which he would estimate 3% such that 12% was the result of the motor vehicle accident making 15% all up. [239] In his view, the slip and fall was a minor aggravation of the underlying pathology caused by the original motor accident. Overall, Dr Bodel found that the Plaintiff had great difficulties with bending, twisting or lifting and could not use his right arm overhead as a consequence of the effects of the injury. The prognosis remained guarded with a chance of some significant improvement with surgery on the right shoulder if it was indicated by the MRI scan. [240]
The Plaintiff saw Dr Bodel for a second examination on 9 September 2020 and he reported on 18 March 2021. [241] Dr Bodel noted that since he was last seen, surgery had been offered to the Plaintiff but not done. Further, he has not been able to return to work and was receiving job seeker allowance and applied for a disability support pension. [242]
So far as his pain was concerned, he noted that in addition to the previous complaints the pain had spread to the left shoulder as well as the right but it was still worse on the right hand side. He had pain in the lower part of the back and right buttock with referred pain down to the right leg of the calf. He also developed a gradual onset of the left ankle pain and stiffness. So far as medications were concerned, the Plaintiff continued to take Cymbalta and Panadeine Forte. It was noted that he was now taking Lyrica 75mg twice a day and Seraquil. The results of the MRI investigation of both shoulders on 14 August 2019 were reviewed. On examination, Dr Bodel noted much of what he saw on the previous occasion but also a non-organic right sided limp. He opined that the Plaintiff suffered soft tissue injuries to the neck, both shoulders and back as a consequence of the totality of the events. His diagnosis was minor degenerative disc disease with soft tissue aggravation to the cervical spine and to a greater extent in the lumbar spine as well as rotator cuff pathology in both shoulders. The Plaintiff's treatment was noted to be conservative with rest, analgesic medication, exercise and physiotherapy. He did not see an indication for surgery. The Plaintiff was seen to require intermittent physiotherapy on a needs basis together with supervision by a general practitioner. Dr Bodel did not anticipate the Plaintiff would ever return to work stating that his capacity has been severely compromised by both the motor vehicle accident and the slip and fall. Overall, Dr Bodel found that the Plaintiff had a 19% whole person impairment comprising of 10% loss of the right upper extremity and 5% loss of the cervical spine and 5% for the lumbar spine. [243] This was said to be entirely due to the motor vehicle accident. With respect to the slip and fall he found a 10% impairment of the neck, 15% impairment of the back, 25% impairment of the right shoulder and 15% impairment of the left shoulder. Dr Bodel added that these have arisen or have been materially aggravated by the slip and fall event. [244]

[27]

Dr Andrew Keller (Occupational Physician)

On 6 February 2018, the Plaintiff saw Dr Andrew Keller (Occupational Physician) at the request of Allianz Australia Insurance Limited (Mr Sun's Compulsory Third Party Insurer).
Dr Keller recorded a history of delayed onset of neck and back pain on the same day of the accident. Dr Keller recorded that he was told there was panel damage to the side of the car and the photographs showed minor front wing and bumper damage. The Plaintiff first saw a doctor two weeks after the accident. He received physiotherapy from September 2017 and at the time was continuing to attend once a week. Dr Keller noted that the Plaintiff continued working normal hours and duties. He was independent in self-care tasks and was able to clean, cook but not do yard work. He had no sports or hobbies. He had no prior neck pain but recalled suffering some lower back pain more than five years ago but cannot recall whether he had any investigation, treatments or time off work. The neck pain was described as occurring daily and may last up to three hours. He rated the pain up to 8/10 in intensity on a scale where 10 is the most severe. He also reports intermittent lower back pain which is recorded daily up to three hours and is rated up to 8/10 in intensity. The Plaintiff was also noted to have self-stated capacities of sitting for 60 minutes, standing for 2 hours, walking for up to 2 hours, lifting up to 15kgs and driving for up to one hour. Dr Keller noted no evidence of pre-existing conditions contributing to the Plaintiff's current complaints.
On examination, Dr Keller found a full symmetrical range of motion in the cervical spine without spasms or signs of radiculopathy. A diagnosis is of a cervical spine soft tissue strain and lumbar spine soft tissue strain. Whilst noting the evidence of mild degeneration in the cervical and lumbar spine he found no evidence of any pre-existing conditions contributing to the Plaintiff's current symptoms. Dr Keller stated that the Plaintiff was unlikely to receive lasting benefit from ongoing passive physical therapies and may benefit from a short supervised gymnasium program before managing his symptoms with personal exercises. He saw no need for any assistance in self-care and home duties. Upon examination, Dr Keller found that 0% whole person impairment. [249]
Dr Keller noted that the Plaintiff had been prescribed Nexium, Augmentin, Panadeine Forte and Lyrica. Current medications were noted as Voltaren and Lyrica.
The Plaintiff in evidence conceded that he told Dr Keller that he continued working normal hours for six months being 8 hours a day 5 days a week. He otherwise could not recall much of what Dr Keller recorded that he was told.
The Plaintiff saw Dr Keller on the second occasion on 17 January 2019 and he reported on 18 January 2019. Dr Keller noted that in October 2018 he fell outside of Coles and injured his neck, back and shoulder. He recorded that the Plaintiff stated that despite being taken by ambulance to Fairfield Hospital he had no physical treatment since that date and managed his symptoms with Panadeine Forte.
The Plaintiff reported suffering constant pain in the neck, back and right shoulder noting the pain between 3/10 and 10/10 in intensity depending on the day and whether he is taking painkillers. The pain was particularly aggravated when lying in bed and when walking. Self-stated capacities were sitting between 5 and 60 minutes, standing around 8 hours, walking between 10-15 minutes and lifting up to 2kgs. He stated that he had not driven a vehicle for 6 months. Otherwise, the Plaintiff described being independent in self-care tasks and could only do limited cooking and cleaning and was unable to do yard work. He noted that the Plaintiff was not currently working and stopped at some point in 2018.
On examination, Dr Keller stated that there was inconsistent restriction on motion that was severe in the neck, back and shoulders. He noted at the time of his assessment on 5 February 2018, the Plaintiff had a full symmetrical range of motion in both shoulders, neck and back without radiculopathy. The change was stated by Dr Keller not to be attributable to the motor accident and not explained by the reported fall suffered in October 2018.
With regard to the effects of the motor accident, Dr Keller opined that the diagnosis remains unchanged but it is possible that he suffers soft tissue strains to the neck and back that would be expected to be temporary in nature. He noted that essentially in February 2018, the Plaintiff had normal examination but there were gross impairments in the physical assessment on the second examination with significant voluntary inconsistencies and exaggeration as detailed. Dr Keller stated that, there is no objective evidence of any persisting musculoskeletal complaints requiring treatment attributable to the subject accident. Specifically, he noted that the Plaintiff remained in his full-time pre-injury duties until after his first assessment more than six months after the accident.
Dr Keller noted that whilst the Plaintiff was totally unfit for work it was not clear whether this was due to his leg swelling, the fall outside of Coles in October 2018 or any other factors. However, it was not his opinion that he was unfit due to the effects of the motor vehicle accident. Overall, Dr Keller stated that due to the gross inconsistencies and demonstrated restriction of motion and incapacity observed during the formal examination conducted on 17 January 2019 compared to his previous assessment in 2018, it was not clear that the Plaintiff had any assessable impairments or injuries to the musculoskeletal system that can be attributed to the effects of the subject accident.
The Plaintiff was seen for a third medico-legal consultation on 24 August 2020 and a report was prepared by Dr Keller on the same day. Dr Keller noted that since his last assessment, the Plaintiff had no new injuries, surgery or injections and no physical treatments. His current medications included Lyrica and Cymbalta. Self-stated capacities included sitting for 30 minutes, standing 5 to 10 minutes due to left ankle pain, walking for 10 to 20 minutes, lifting 4kgs and no driving. He remained independent in self-care and was able to assist with limited cooking and cleaning but no yard work. Dr Keller noted: At the time of my assessment in February 2018, he demonstrated a full range of motion in the cervical spine with normal sensation reported in both upper limbs. There was a full range of motion in both shoulders including flexion and abduction to 180º. There was a full range of motion in the lumbar spine without spasm or signs of radiculopathy. At the time of my assessment in January 2019, there was inconsistent restriction of motion in the cervical spine. There was significant inconsistent restriction of motion in the cervical spine. There was significant inconsistent restriction of motion in both shoulders, but with normal movement in both elbows, wrists and all fingers. He reported reduced sensation in all of the left upper limb with no abnormality described in the right. There was severe inconsistent restriction of motion in the lumbar spine with normal sensation reported in both lower limbs and normal power at both ankles. On examination today there was severe but inconsistent restriction of motion in the cervical spine. He reported reduced sensation affecting all of the right side of the neck and right upper limb crossing multiple dermatomes without explanation and normal sensation in the left upper limb, in contrast to last time. There was variable inconsistent restriction of motion in both shoulders, in the right elbow and right hand without evidence of disuse wasting in the right upper limb. There was severe but inconsistent restriction of motion in the lumbar spine. There was reported reduced sensation in all of the right lower limb but not explained by his investigation reports to date. There was severe but inconsistent weakness at the right ankle, incompatible with his ability to walk.
Dr Keller indicated that the accident in 2017 involved low force and the investigations revealed no significant trauma. The Plaintiff's physical presentation deteriorated year by year throughout his sequential assessments with a high level of inconsistency without explanation. The reduced sensation in his limbs was not explained by the mechanism of the accident or the Plaintiff's investigation reports. He further noted that the numbness had moved from the left arm to right arm without explanation. Overall, Dr Keller found that on the information available to him with regard to the mechanism of the accident, the investigation reports and the multiple times that he assessed the Plaintiff physically, he was unable to find objective evidence of confirmable injuries attributable to the subject accident that explain his current reported disabilities. On this basis, Dr Keller was unable to find evidence of injuries attributable to the accident that caused his current work restrictions and that he would have expected the Plaintiff to full recover from the effects of the accident in less than three months. Presentation was noted to be not explicable in terms of musculoskeletal injuries, the mechanism of the accident or the displayed capacities observed at other times outside of the formal examination. He opined that the Plaintiff appeared to have significantly embellished signs which were voluntary.

[28]

Dr Alan Home (Occupational Physician)

The Plaintiff was assessed on 10 September 2018 by Dr Alan Home for the State Insurance Regulatory Authority. Dr Home recorded a history of the injury to the cervical and lumbar spine and right shoulder with pain developing the day following the accident. The Plaintiff advised that his symptoms were increasing over time. Dr Home recorded that the Plaintiff described constant neck symptoms on both sides with an average intensity of 8/10 as well as occipital headaches. Dr Home opined that headaches can be associated with tinnitus and blurred vision. He also noted complaints of lightening like shooting pain momentarily occurring in the entire right upper limb eight to ten times daily. Also recorded were complaints of numbness to the left index finger and no complaint of left upper limb pain. He recorded complaints of constant mid-line lower back pain at 8/10 intensity exacerbated by coughing and sneezing. [250] There was also further lightening like shooting pain extending down his right leg and he does not experience other lower limb pain. He did not report frequent pain in in the right buttock. In cross examination the Plaintiff accepted this history and also that these things were getting worse. [251] He accepted that as a refrigeration mechanic he had to use his arms a lot and he had to perform heavy work on his arms. The Plaintiff accepted that it was heavy work which he did for about 25 years. [252]
Dr Home noted that the range of active motion at the shoulders was markedly reduced in comparison to that documented in the medical file, particularly by Dr Keller who documented a full range of active shoulder motion. After he asked the Plaintiff about this, Dr Home stated that he was advised that he had taken less medication today. Dr Home opined that the range of restriction of shoulder motion to be inconsistent with sub-acromial pathology and also inconsistent with pain secondary to a neck or upper back complaint. Nevertheless, having reviewed the Plaintiff's medical records, photographic damage he was satisfied from the history that it was probable that the Plaintiff struck his right shoulder on the internal aspect of the door at the time of impact and sustained a soft tissue injury to the right shoulder. [253]
Dr Homes noted the soft tissue injury aggravating underlying degenerative change to the cervical and lumbar spine and soft tissue injury to the right shoulder. 5% impairment was found to the lumbar spine, 0% for the cervical spine and 2% for the right shoulder making 7% whole person impairment. Dr Home noted no history of left shoulder injury.
On 4 March 2021 at the request of Millennium, Dr Home was asked to further assess the Plaintiff. Dr Home noted that at the time of his last assessment there was a demonstrated marked restriction of active elevation although preserved rotation of the shoulder. On the few occasions he noted that the Plaintiff presented with no active motion of the shoulder girdle or with the shoulder girdle enervated by the trapezius muscle. The reason for the complete lack of shoulder girdle motion was not evident from the known pathology. He noted that it was plausible that the Plaintiff developed further stiffness in the shoulder girdle and the right shoulder, however, the clinical findings were difficult to interpret and voluntary pain inhibition is probable.
In relation to the left shoulder, the Plaintiff reports pain and restricted motion on the left side. The range of active motion of the left shoulder was similar to that with which the Plaintiff presented at last review, prior to the subject fall. The subsequent MRI scan imaging of the left shoulder was noted to have demonstrated a small tear in the supraspinatus tendon that may be contributing to his restricted left shoulder motion. However, such pathology would not arise from a fall onto the back.
Dr Home opined that the fall may have caused a mild aggravation of the chronic neck complaint and lower back complaint but found that the majority of his complaints arise from the prior motor vehicle accident as these areas were already symptomatic. In relation to the right shoulder, he noted that the post-accident imaging of 1 April 2019 demonstrated identical findings to the ultrasound performed on 13 March 2018, with a small full thickness tear of the supraspinatus tendon. Therefore, he did not attribute the supraspinatus tendon injury of the right shoulder to the subject fall. On balance, he attributed 10% of his neck, right shoulder and lower back complaints to the fall at Coles. He could not attribute the complaint relating to the left shoulder to the fall at Coles.
Noting the opinion of Dr Teychenné in relation to the putative diagnosis of incomplete cervical cord syndrome arising from the motor vehicle accident, Dr Home did not find that there are convincing clinical features of a cervical spine injury. He noted that the MRI scans of the cervical spine did not show macroscopic cord damage and the clinical findings of Dr Darveniza in his report of 3 October 2019 did not find it plausible that the accident at Coles would cause that diagnosis. In conclusion, Dr Home found the incident at Coles caused an exacerbation and perhaps mild aggravation of the pre-existing complaints at the neck, right shoulder and lumbar spine. He noted that Dr Bodel did not record a history of traumatic injury to the left shoulder from the fall. He could see no evidence when the Plaintiff underwent the imaging of the left shoulder in the post-accident period and cuff pathology was only found on MRI scanning performed in August 2019, almost 12 months later. He noted that the pathology would be unlikely to arise from the mechanism of the fall. In short, Dr Home found that the current physical complaints are very similar to those at the last review and appear to be a continuation of the injuries sustained in the motor vehicle accident of 20 July 2017 to a large degree. He noted that the Plaintiff was already reporting total incapacity for work at the time of his last review in 2017 and also described very severe restrictions of his capacity for activities for daily living at the time. He did not find his clinical presentation consistent with a capacity to return to work as a refrigeration technician and thought that it would be unlikely that he would gainfully find employment in the open labour market in other forms of work.

[31]

Injury from Motor Accident

The Plaintiff contended that there were three forms of diagnosis for the motor vehicle accident matter and to some extent the slip and fall matter. The first was of soft tissue musculoligamentous injury which was supported by Dr Keller, Dr Darveniza and Dr Davé (in respect of the right shoulder). The second was aggravation of the pre-degenerative changes in the cervical lumbar spine. This was said to be supported by Dr Sanki, Dr Darwish, Dr Home, Dr Hanna and Dr Bodel. [259]
The Plaintiff pressed the most likely diagnosis as that of incomplete central cervical cord lesion supported by Dr Teychenné. The Plaintiff drew attention to the fact that the Plaintiff suffered neurological symptoms immediately following the motor accident and it was reported by Dr Darveniza and Dr Teychenné. Dr Teychenné noted that there had been a worsening of the circumstance. [260] Dr Darveniza was said to have maintained the same diagnosis but added a functional component which was consistent with the fact that by the time that he saw him on the second occasion the Plaintiff was suffering from depression and anxiety. [261] So far as the psychiatric case was concerned, the Plaintiff submitted that Dr Teoh and Dr Benjamin did not suggest that he was making things up.
The Plaintiff submitted that the opinion of Dr Keller that the Plaintiff's condition was not genuine and that he was not incapacitated should be rejected because it was contrary to the other treating and qualified medical opinions and also because it was internally inconsistent. Further, there was no evidence as to what documents Dr Keller had to form that opinion and it appears as though he did not have the opinion of Dr Teychenné, Dr Darveniza and Dr Bodel or anyone else as he made no reference to them. [262] The Plaintiff drew attention to the fact that whilst Dr Keller alleged inconsistencies and exaggeration by the Plaintiff he did not detail this. Further, Dr Keller did not directly dispute the Plaintiff's incapacity for employment but didn't relate it to the motor vehicle accident.
Counsel for the Defendant Mr Sun submitted that the effect of the motor accident was soft tissue injury to the cervical and lumbar spines that were temporary in nature resulting in the Plaintiff only consulting Dr Hanna and Dr Sanki in total on 5 occasions in 2017. It was noted that the Plaintiff was able to continue working full time for what was described as 7 months following the accident and yet his symptoms increased in frequency and severity over time. [263] It was argued that the right shoulder is not related as the Plaintiff exhibited a full range of motion of both shoulders when he saw Dr Keller and all treatment after 2017 including that of Dr Davè is not causally related, reasonable and necessary. [264] It was noted that Dr Keller recorded no complaints of shoulder symptoms. Relying on Dr Teychennè's report of 20 January the Defendant Mr Sun submitted that any treatment was related to the previous accident in 2000. [265]
I am not satisfied that the Plaintiff has suffered an incomplete central cervical cord lesion as opined by Dr Teychennè. Contrary to the Plaintiff's submissions no other specialist specifically shared that opinion. Dr Home had occasion to review the Plaintiff more proximate to the motor accident than Dr Teychennè. He found no convincing clinical features of a cervical spine cord injury, noting that the MRI scans did not show macroscopic damage. Dr Darwish on 15 May 2018, noted that the MRI scan of the cervical spine of 1 May 2018 showed disc bulges at C5/C6 and C6/C7 levels but no significant nerve root or cauda equina compression.
Dr Darvenzia in his report of 3 October 2019 noted that whilst Dr Techennè recorded some left hemispheric signs they were not present at his consultation. A year later he observed that there were "subjective right hemi sensory signs all modalities splitting the midline." [266] He found however marked functional overlay. To add to this, Dr Bodel described the right sided limp as non-organic. Dr Teychennè found no evidence of functionality but does not account for the widespread complaints that the Plaintiff made covering large parts of his body including incontinence and an inability to obtain an erection. As noted in his experience only a small percent of patients may over the years show evidence of progression of the spinal lesion. Accepting that to be the case, he did not identify any signs of any deterioration in the MRI which he reported on 5 August 2021 instead correlating it with an examination and history provided to find a worsening of symptoms. Nor was there any comparison of the radiology undertaken by a specialist radiologist.
Whilst the Plaintiff suggested that there were two other potential diagnoses, in my view they refer to the same thing. The presence of pre-existing degenerative changes in the lumbar and cervical spines was not in issue.
What is in issue is the duration of the injury brought about by the motor accident and whether those injuries included the right shoulder.
When writing his report dated 17 September 2018, Dr Home did not appear to have cited the radiology in relation to the right shoulder. He did so however when he came to write his report of 4 March 2021. He noted that it demonstrated a small tear in the supraspinatus tendon and the Plaintiff was presenting with almost no active motion of the shoulder girdle or the shoulder with the reason not evident from the known pathology.
Whilst the right shoulder did not feature in the medical evidence until 12 March 2018, the Plaintiff gave evidence of hitting his right shoulder on the panel and could feel pain. [267] Dr Aung on 12 March 2018 recorded a history of 7 months of pain and 3 months limited lifting. The Plaintiff was not challenged on these accounts. On the balance of probabilities, I accept Dr Home's view that it was probable that the Plaintiff struck his right shoulder on the internal aspect of the door at the time of impact and sustained a soft tissue injury in the right shoulder.
So far as the other injuries were concerned, Dr Keller in his report of 6 February 2018 accepted soft tissue "strain" in relation to the cervical and lumbar spines. He did not describe the expected duration of the injuries but did find zero impairment noting that six months of physiotherapy was reasonable and necessary and the Plaintiff may benefit from a short supervised gymnasium session. In his report of 18 January 2019, Dr Keller stated that his diagnosis is unchanged and "it is possible" he suffered soft tissue strains to the neck and back that would be expected to be temporary in nature. On this occasion, he opined that three months of treatment was reasonable and "full recovery was expected within some months of the accident." It is unclear what the documentation he was asked to review although there is evidence of him reviewing the radiology. [268]
From my reading of the report of 6 February 2018, Dr Keller's opinion seems to have developed from what he saw as the nature of the accident and the fact that the Plaintiff continued working. At one point, he sought to attribute unfitness to the slip and fall accident or to other factors. That opinion was not repeated in the reports of 24 August 2020 where he highlighted inconsistencies in presentation. In any event, it is not evident as to whether Dr Keller had access to the Plaintiff's treatment notes recording presentation and complaints. Dr Keller did appear to accept that the Plaintiff may have occipital headache every few days which could be associated with tinnitus and blurred vision.
Dr Bodel found soft tissue musculoligamentous injuries to the neck, back and right shoulder as a consequence of the motor vehicle accident. He described these as including significant aggravation of the disc pathology in the cervical spine, mechanical symptoms associated with disc pathology in the back and rotator cuff pathology in the right shoulder.
Dr Bodel recorded no history of injury to the left shoulder in his 24 May 2019 report. To the extent that he noted the slight restriction, he stated that he had no specific injury so far as he was aware to that part of the body from either the motor accident or the fall. He accepted that the Plaintiff was symptomatic at the time of the fall and that it caused additional structural damage (describing it as minor in nature) to the cervical spine, lumbar spine and upper right extremity finding a 3% whole person impairment relating to the slip and fall as discussed at [214]. The issue of the left shoulder in the context of the slip and fall is discussed below.
On 18 March 2021, Dr Bodel described the Plaintiff as having minor degenerative disease with soft tissue aggravation to the cervical spine and to a greater extent in the lumbar spine as well as rotator cuff pathology in both shoulders.
I do not accept that the duration of the Plaintiff's injuries from the motor vehicle accident were temporary as, Counsel for the Defendant Mr Sun submitted. Despite the fact that the Plaintiff continued working. he gave evidence of using medication, and working slowly leading to him stopping work within six months of the accident. Moreover, apart from medical consultations, the Plaintiff undertook a specialist referral, accessed medication, acupuncture and physiotherapy during this period.
I further do not accept Counsel for the Defendant, Mr Sun's submission that treatment following 2017 can be attributed to the 2000 accident. [269] The Plaintiff's evidence on this matter was not challenged. Moreover, it was consistent with what Dr Teychennè recorded being that the Plaintiff had in that accident sustained a whiplash injury but did not have any neck pain or neurological deficit as a result. It was also consistent with the history recorded particularly by Drs Bodel, Keller and Home. Any residual effect of the 2000 accident was not explored in cross examination. Dr Keller specifically disavowed pre-existing conditions contributing to the Plaintiff's complaints.
Overall, I would accept that the Plaintiff suffered a soft tissue aggravation of underlying degenerative conditions to the lumbar and cervical spines and soft tissue injury to the right arm in the motor vehicle accident. The Plaintiff accepted that by the time of the slip and fall he already had ongoing problems from the motor vehicle accident which forced him to cease employment in March 2018. Counsel for the Defendant Mr Sun did not submit and the evidence did not demonstrate that the Plaintiff's pre-existing condition would naturally have led to the post-accident state of pain and restriction: Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164 at 168; State of New South Wales v Skinner [2022] NSWCA 9 at [120]-[123].
The Plaintiff first complained of anxiety and depression on 25 September 2018 and was prescribed Endep. From 3 October 2018, he came to see a Dr Mohammed who was described as a psychologist. [270] That was for counselling and low mood. This was prior to the slip and fall. Although there is evidence that Dr Hanna prescribed Cymbalta from June to September 2019 and the Plaintiff gave evidence that he was taking that and Mobic prior to the slip and fall. [271] Dr Benjamin reported the dosage was increased to 60mg at the time of his consultation on 21 July 2020. Whilst this medication was noted not to provide significant benefit, by 21 October 2021, the addition of Lyrica 75 mg and Seroquel 25mg led to some improvement. The Plaintiff indicated that he saw Dr Benjamin for 10 months. Whilst some medication and treatment post-dated the slip and fall accident, Dr Teoh nonetheless relates the symptoms to the motor vehicle accident. Depression and anxiety were particularised against Millennium and Coles and not the Defendant Mr Sun. However, there was no objection taken or question of unfairness raised on this account. Nor was there any application to limit the use of the evidence. Overall, I am satisfied that the Plaintiff has suffered a major depressive disorder which is related to the functional overlay observed by Dr Darvenzia when he saw him on 1 October 2020.

[32]

Injury from the Slip and Fall Accident

So far as injuries arising from the slip and fall are concerned, the Plaintiff came to faintly press an independent injury to the left shoulder mentioning only that he had pain which he did not have before the accident. [272]
Despite the evidence from Dr Arnold, Counsel for the Defendant Mr Sun made no submissions in relation to extent of any injury brought about by the slip and fall accident. This was so as reliance was placed on the opinion of Dr Keller.
Consistent with submissions advanced by Millennium and Coles however I cannot be satisfied that the Plaintiff occasioned any injury to the left shoulder from the slip and fall accident.
The Plaintiff himself could not recall that he landed on his left shoulder and the basis of his evidence was what "his mate" had told him. [273] Mr Keryo gave evidence of the Plaintiff's "left hand go on the tiles." [274] The CCTV recording does show the Plaintiff outstretching his left arm presumably to cushion his fall before landing on his left side. [275] However neither Mr Keryo nor Mr Nasser gave evidence supporting any injury or complaint of injury or disability to the left shoulder. [276]
The Plaintiff did not report either landing on his left shoulder or suffering any pain in his left shoulder to the security guard at the Centre, the ambulance, Fairfield Hospital, any of his treating GP's or any medico-legal doctor, at least prior to May 2019. [277]
The Plaintiff gave evidence that he must have told Dr Bodel and Dr Home on the occasions that he saw them that he landed on his left shoulder. [278] He later stated that the first time he reported to any doctor about the pain in his left shoulder after the fall was in May 2019 when he saw Dr Bodel. The reason he was able to identify the pain then was because of a movement Dr Bodel had asked him to perform. [279] Dr Bodel's two reports contained no report from the Plaintiff of striking or injuring his left shoulder. In his first report, he noted slight restrictions on the left side but noted that there was no specific injury to that side as far as he was aware of from the motor vehicle accident or the fall. In his second report, Dr Bodel refers to a "spread" of pain to the left shoulder.
Whilst Dr Darveniza accepted that the Plaintiff had an injury to his left shoulder in the fall, he did not refer to or take into account the lack of history of complaint for many months. Moreover, in his later report, Dr Darveniza stated that there had been inexplicable deterioration with marked functional overlay such that any assessment would be totally unreliable. [280]
Whilst the MRI scan of 14 August 2019 did refer to the partial thickness tear in the left supraspinatus tendon there is no independent medical reason to conclude that this was traumatic or that it arose from the slip and fall. Dr Popuri recorded that early joint degenerative change was present and Dr Keller described the findings as degenerative.
Dr Home saw the Plaintiff both before and after the fall. His opinion that the fall may have caused mild aggravation of the chronic neck complaint and lower back although he had pre-existing symptoms in these areas is logical. I accept his opinion that the imaging both before and after the fall demonstrated identical findings in respect of the right shoulder. Dr Home's observation that the range of active movement in the left shoulder were the same pre and post the fall and the tear in the supraspinatus tendon in the left shoulder did not arise from the fall is consistent with other evidence.
I cannot accept the Plaintiff's assertions of the mechanism of the injury to the medicolegal assessors in light of the absence of a note in the respective reports and the Plaintiff's statement that he did not know that he had pain in his left shoulder until Dr Bodel asked him to raise it. [281] There was no recording of significant disability in the left shoulder by Dr Arnold in her report of October 2020 nor Ms Cezana who in her report of 24 May 2020 which included a pain chart referrable to the left shoulder.
The Plaintiff himself described that his left shoulder was good [282] although there was small numbness in the index finger of the left hand. [283] He conceded that he could use his left arm like he did before the slip and fall. [284] Overall, the left shoulder did not require or receive any particular treatment and did not lead to a change or increase in medications as the Plaintiff himself concedes. [285]
So far as the balance of injuries arising following the slip and fall, Millennium contended that they were limited to a minor aggravation of existing injuries. Coles submitted that the Plaintiff claimed an aggravation of pre-existing injuries to the lumbar spine, neck and right shoulder which would at best appear to be described as soft tissue aggravations of some underlying degenerative pathology. [286] Coles submitted that it would not be reasonably open for the Court to conclude that in the accident of 16 October 2018 any of the conditions that the Plaintiff suffered were materially aggravated let alone permanently. This was said to be consistent with the mechanism of the injury depicted in the CCTV recording and the medical evidence. Coles argued that the Plaintiff faces real credit difficulties in proving that his condition is currently serious, let alone in any way worse than it was before the slip and fall noting that he had given evidence in the most vague, confused and unconvincing fashion and changed his evidence stating that he could not remember. [287]
To the extent that the Plaintiff may have relied upon the evidence of Dr Arnold as to deterioration after the slip and fall, the evidence of Dr Home and the Plaintiff himself supports a finding that the Plaintiff considered himself to be getting worse in respect of pain and symptoms one month prior to the slip and fall. [288] Coles submitted that this would be consistent with more moderate symptoms recorded by Dr Keller in February of that year. [289]
Dr Keller noted significant deterioration by January 2019, although he was not convinced this was genuine. [290] Dr Keller did not attribute this to the fall at Coles.
Following the slip and fall accident, the Plaintiff gave no evidence of any physiotherapy, massage treatment or medication additional to that he had previously. [291] The Plaintiff acknowledged the history recorded by Dr Home prior to the slip and fall. [292] When the Plaintiff was specifically asked what in terms of ability he could not do after the slip and fall he replied that he could not do shopping anymore. [293] He described that it related to an inability to use his arms anymore. He reported to Dr Davenzia that following the slip and fall he stopped fishing and stopped recreating and socialising. For reasons earlier given, I have not found any causal connection between the slip and fall and the left shoulder. The Plaintiff also gave evidence that he could use his left arm after the slip and fall the same way he did before. The fall itself does not appear to have involved the right arm or shoulder.
Mr Nasser was asked about his observations of the Plaintiff after each accident. After the slip and fall he described that his "impression" was that the pain had gotten worse. [294] However, Dr Home who saw the Plaintiff before and after the slip and fall found that the physical complaints are to be very similar to those at previous review describing them as appearing to be a continuation of the injuries sustained in the motor vehicle accident of 20 July 2017 to a large degree.
I accept that the Plaintiff did aggravate his neck and back injuries in the slip and fall. However, in my view, the effects were relatively minor.

[33]

Non-Economic Loss in Slip and Fall Matter

The Plaintiff's claim for non-economic loss is advanced only in respect of the slip and fall matter.
Section 16(1) of the 2002 Act states that no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. Section 3 of the 2002 Act states: "non-economic loss" means any one or more of the following-- (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement.
There is no evidence of either loss of expectation of life or disfigurement.
The Plaintiff's schedule claimed non-economic loss at 28% of a most extreme case in the slip and fall matter. Millennium claimed that it was less than 15% [295] whilst Coles submitted that it would be significantly less than 10% of a most extreme case.
The Plaintiff whilst pursuing a claim for non-economic loss did not articulate the case (beyond referring to the treatment the Plaintiff received) of the pain and suffering and loss of amenities of life flowing from the slip and fall.
Both Dr Davenzia and Dr Home attributed 10% of the Plaintiff's neck, back and shoulder problem to the slip and fall and 90% to the motor accident. According to Dr Benjamin, the Plaintiff's depressive and anxiety symptoms emanate from his pain and physical disability which according to the evidence principally relates to the motor vehicle accident. Dr Teoh also relates it to the motor accident. [296]
Dr Bodel stated in his report of 21 May 2019 that there was a 20% apportionment to the slip and fall referable to impairments to the neck, right shoulder and lower back. His report dated 18 March 2021 sought to assert further impairments to each of the neck lower back and right arm adding a15% impairment to the left shoulder. This was in a context where he previously described the slip and fall as constituting a minor aggravation of the underlying pathology. I find it impossible to correlate the assessments in respect of the slip and fall accident with his earlier expressed opinion.
In all the circumstances, I prefer the views of Drs Davenzia and Home whilst also accepting that of Dr Teoh as to the relative impact of the slip and fall.
Taking into account the limited impact of the slip and fall on the evidence I find that non-economic loss arising from it to be 7% of a most extreme case. This does not meet the threshold in section 16(1) of the 2002 Act and it follows that no damages in this regard are to be awarded.

[34]

Loss of Earning Capacity in Motor Vehicle Accident Matter

The Plaintiff's symptoms appear chronic. The consensus of the medical evidence is that the Plaintiff is unfit to work in his previous vocation.
Dr Bodel stated that there were no prospects of the Plaintiff returning to work as his capacity was severely compromised by the motor vehicle accident. [297] Dr Darveniza agreed that the Plaintiff was permanently unfit for his usual occupation of refrigeration mechanic and was very unlikely to find gainful employment in the open labour market. [298] Dr Home concurred on the basis of the clinical presentation. Although Dr Teoh assessed the Plaintiff as fit for suitable duties from a psychiatric perspective, he found that he would have difficulties in employment in the open market and would require retraining and a rehabilitation programme. Dr Teychennè also was of that opinion although; I have not accepted his diagnosis. For reasons given, I have not accepted Dr Keller's opinion that the aggravation arising from the motor vehicle accident was one that was temporary in nature.
I accept that cognitive behaviour therapy may provide some relief in the future which would increase his activities of daily living. Notwithstanding this, for the purposes of s 126 of the Motor Accidents Compensation Act 1999 (NSW) (the 1999 Act), I am satisfied that there is no likelihood of the Plaintiff being able to resume any employment or realise earning capacity in the future.
The Plaintiff's claim was calculated on the basis of net being an average of $964 over three years before the motor vehicle accident from his notices of assessment. The Plaintiff argued that this was less than average weekly earnings in November 2017 of $1,118.47 net. [299]
Counsel for the Defendant Mr Sun argued that the Court would not accept the Plaintiff's loss of earnings calculated on the basis of his income returns. In summary, the arguments were that the returns could not be relied upon because of the failure to produce source documents, the circumstances in which they came to be prepared and the contents of the returns themselves. Nor could the Plaintiff rely on average weekly earnings as he was not an average weekly earner having given evidence that for some years he did not do very well. [300]
The Plaintiff's evidence was that prior to the accident he employed accountants and went to his present accountants after his previous ones did not complete his returns. [301] He stated that prior to 2016 he engaged accountants who he identified as "Ashton or something." [302] The Plaintiff stated that he had all the documents and receipts however he had not filed a return because he "was scared." [303] He conceded that he did not file a tax return as from 2000 to 2007 as he was "struggling." [304] Later, he stated that he did not file a tax return between 2000 and 2018. [305]
The Plaintiff gave evidence that since 2019 he had not worked and hence there were no tax returns. [306] The Plaintiff gave evidence that he did not have a single invoice or record in his possession as these were with his accountant. [307] Ms Kunaratnam acknowledged that she was the person that completed the Plaintiff's tax returns for the 2013-18 tax years. She stated that she first met the Plaintiff in 2016-2017 in circumstances where the Plaintiff's previous accountant didn't complete returns and where she was engaged. She gave evidence that when he came in to see her, the Plaintiff brought in bank statements, his invoice book and book keeping records. She stated that the Plaintiff had a book keeper although she did not contact her. She did get access to MYOB records however. She stated that she also got some ATO letter that the Plaintiff brought in and she also accessed ATO records including employment history, outstanding balances and a tax history.
Ms Kunaratnam stated that she can't recall whether she still had the primary information she used as she was not in the office and it was a couple of years back. She stated that "probably we can get it but she would have to check it." [308] After the returns were submitted, she stated that she talked to the ATO but asked the Plaintiff to speak to them. [309]
Ms Kunaratnam stated that she was aware of the obligation to keep records for a minimum of 7 years and whatever the information was she would have kept it. She stated that she could produce the information that the Plaintiff provided whilst noting that some of it was returned and some kept. [310] She added that whatever information is kept can be produced. [311] When asked if she returned the source documents to the Plaintiff she stated that she would make a copy of some of the evidence and then "sometime - and we always return the original documents. So I have - I, I can't recall what happened." [312] She added that normal practice is to return the original documents to the client. She did not know if she had copies or original documents in the office as she would have to check as she was not in the office. [313]
Counsel for the Defendant Mr Sun put to Ms Kunaratnam that she was asked to produce documents pursuant to a subpoena of the materials the Plaintiff had given to her including tax invoices, bank statements etc and she did not produce anything. She responded that she didn't know that and did not remember being asked to produce source documents. [314]
Counsel for the Defendant Mr Sun argued that the Plaintiff had broken a lifetime habit of not filing tax returns until after the motor vehicle accident and the reason would give a basis for calculation of economic loss claim. [315] It was argued that any other explanation that they were done for a purpose associated with the litigation was vacuous. [316] It was submitted that there was no ancillary material produced and in the circumstances there was no proof of the Plaintiff's earnings. [317]
Counsel for the Defendant Mr Sun submitted that he could not ask what advice the Plaintiff had received when the tax returns were completed. [318] However, what is known is when the Plaintiff was put in the dilemma of not being able to substantiate his income loss without proof, returns are lodged without a sensible foundation. The figures in the returns were described as hearsay because what they did was to assert that there is material that would ground the conclusion that are based on them. In the absence of the primary documents, it was submitted that the Court could not be satisfied that the returns reflected a reality. [319]
Counsel for the Defendant Mr Sun acknowledged that by submitting returns as the Plaintiff has, incurred penalties and interest. It was argued however that these can be negotiated, there is no evidence from the taxation department and the Plaintiff himself doesn't know how much he owes. [320] Accordingly, it was submitted that it was not possible to determine what the Plaintiff's earnings were to provide a basis for loss of earnings to be awarded. [321]
In substance, Counsel for the Defendant Mr Sun sought to advance that the Plaintiff and his accountant produced returns that did other than accurately contain the Plaintiff's earnings for the purpose of supporting an economic loss claim in this case. Implicit in that is that the Plaintiff's solicitors were also involved. That is a serious contention that appears to have first arisen in submissions. [322] Fairness required that it be put squarely to both the Plaintiff and Ms Kunratnam. [323] It was not. Moreover, Ms Kunaratnam was not challenged as to the process she followed to prepare the returns. Contrary to Counsel for Defendant Mr Sun's submissions, both the Plaintiff and Ms Kunaratnum gave evidence of the Plaintiff's dissatisfaction with a previous accountant leading him to engage Ms Kunaratnam. Even if some need to regularise his tax affairs was precipitated by the needs of the litigation, it would be surprising to say the least that a taxpayer likely to incur penalties and interest would overstate income in any such returns. Moreover, despite the Plaintiff not being able to recall it, there is evidence that significant penalties and interest were levied in this instance amongst documents tendered by the Defendant (Mr Sun) from the ATO. [324]
The proposition that tax returns cannot be relied upon to demonstrate loss is contrary to what was said in Dyldam Developments Pty Limited v Jones [2008] NSWCA 56 at [66] by Hodgson JA (Giles and Basten JJ agreeing).
When tendered by the Defendant, Mr Sun no restriction as to their use was sought pursuant to s 136 of the Evidence Act 1995 (NSW) (the 1995 Act) and s 60 of the 1995 Act would apply.
It is true that the Defendant Mr Sun sought to compel production of primary records presumably with a view to impugning the contents of the returns.
A Notice to Produce directed to the Plaintiff was served dated 12 August 2020. By correspondence dated 1 October 2020, the Plaintiff's solicitors took issue with the Notice as being not in compliance with UCPR 21.12. [325] Whatever be the merits of that position, the Defendant Mr Sun responded forwarding revised Notices to Produce dated 13 and 14 September 2021 returnable at the hearing of the matter. [326] Those Notices requested production inter alia of source documents and correspondence with the ATO.
The question of compliance was raised at the outset of the hearing. The Plaintiff's counsel advised that it had no further documents to produce beyond those contained in the court books. [327] At that point, I asked the Counsel for the Defendant Mr Sun whether the issue need to be addressed at that stage or whether the matter could proceed. I was informed it could proceed. [328] At one point the Counsel for the Defendant Mr Sun announced that he sought an order for the Plaintiff to produce "all records from his accountant." [329] Cross examination continued on other matters before the Counsel for the Defendant Mr Sun raised the matter of compliance again. The Plaintiff's Counsel indicated that the accountant may or may not have documents however the Plaintiff was not required by to make such enquiries. The matter was temporarily stood down to enable enquiries to be made. [330] The Court was subsequently advised that the Plaintiff was informed by his accountant that she had produced records that included the tax returns, notices of assessment and some business activity statements. Beyond that, contact had not been able to be made with the accountant. [331] At that point, Counsel for the Defendant Mr Sun foreshadowed that it would object to the tender of the tax returns. [332] Otherwise, the Counsel for the Defendant Mr Sun advised that he had concluded cross examination of the Plaintiff. [333]
The Subpoena to Produce addressed to the accountants was filed on 12 August 2020 requiring production by 31 August 2020. That subpoena was broadly worded to require production to the extent relevant of "all financial records, balance sheet, profit and loss statements, income tax returns, notices of assessment , correspondence…. for the years ended 2012 to date in relation to the business operated at [address] 1. in the name of Maurice Azzo (born 13 April 1960) or 2. in the name of My refrigeration
The documents produced included the tax returns and assessments from 2012 to 2018.
The subpoena did not specify production of bank statements, tax invoices or source documents for that matter. In any event no application was made for the witness to be ordered to produce any such documents or to otherwise seek enforcement of the subpoena. Nor was there any application for an adjournment. Instead all documents produced came to be tendered as earlier described.
In further seeking to cast doubt on the reliability of the returns, Counsel for Defendant Mr Sun highlighted that the returns showed a deduction for "accounting." It was put to the Plaintiff that the only reason that he would have an accountant is to prepare tax returns. Counsel for the Defendant Mr Sun argued that the Plaintiff accepted this. It was then put that he could not have incurred an accounting expense before 2018 as that is when he attended on his present accountant. Although, at one point, the Plaintiff appeared to accept that, a fair reading of all the Plaintiff's responses show some confusion on his part as to his comprehension of the questions he was being asked.
The reference to accounting in the tax returns was accepted as not relating to the cost of their preparations by Ms Kunaratnum. Ms Kunaratnam however was not asked as to what these accounting deductions were referable to. There was evidence that the Plaintiff in the past had another accountant, used a book keeper [334] and also used MYOB. [335]
Next the Counsel for the Defendant Mr Sun highlighted that every return showed a reference to the Plaintiff being employed by Food Equipment Distributors Pty Ltd whereas the Plaintiff claimed he only worked there for six months. The Plaintiff gave evidence that every tax return that said that he was employed by that company was wrong except for the six months. Counsel for the Defendant Mr Sun accepted that there was no suggestion that he was ever paid any money by that company but they were purely some form of decoration of otherwise unconvincing tax returns. [336] I see nothing in the reference to Food Equipment that casts doubt on the substance of the returns.
In these circumstances, I see no basis to disregard the documents as Counsel for the Defendant Mr Sun submitted.
I would add in any event that even that the tax returns were unable to be relied upon it would not follow that an award for future loss of earning capacity would fail as Counsel for the Defendant Mr Sun submitted. [337] That proposition appears to be contrary to the principles summarised in State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 356 at [66]-[73] by Heydon JA, Kallouf v Middis [2008] NSWCA 61 at [46]-[61] by McColl JA and Morvatju v Moradkhani [2013] NSWCA 157 at [51]-[55] by McColl JA.
That leaves the question of how past loss is to be calculated. The Plaintiff's figures seek to use the average of three preceding years. The net figures also do not account for the Medicare levy. [338] In the context of the five years, the figures for 2015 and 2016 are very high. Doing the best I can I would take an average over the period and come to a figure of $860 as the basis for calculating past loss. The Plaintiff's evidence was that he worked for 6 months and then ceased. Past loss would therefore be for a period of 4 years and 3 weeks. This would come to a figure for 211 weeks to date of $181,460. From this is to be deducted the Plaintiff's actual net earnings in 2018 and 2019 of $37,412 making a past loss of $144,048.
For the future, the Plaintiff gave unchallenged evidence that but for injury he would have worked until aged 70 or 75. The Plaintiff's claim is based on him working until aged 70 years. [339] He was born on 13 April 1960. At the time of the motor accident on 20 July 2017 he was aged 57.
Whilst future loss of earning capacity was also sought at $964 net, I would taking the same approach allow $860 net per week for 8 years using a multiplier of 345.6 less 15% for vicissitudes making a figure of $252,633.6.
This makes the past and future loss of earning capacity in the amount of $396,618.60.

[35]

Domestic Assistance in Motor Vehicle Accident Matter

The Plaintiff further claimed future domestic assistance for effectively 20 years (until 80 years of age) based on four hours per week at $46.79 per hour for heavy house household work provided commercially. [340] At one point, it was suggested that the claim was for "two hours every month or something like that." [341] In any event, for support, the Plaintiff relies on Dr Daeveniza who supported 2 hours a week. Attention was also drawn to Dr Bodel who supported domestic assistance but said that the Plaintiff needs to be formally assessed. The Plaintiff noted that Ms Cezana in her report supports 8.16 hours plus per week.
Counsel for the Defendant Mr Sun submitted that the only support for the claim was in respect of performing external chores in the house and what the Plaintiff did and for how long was difficult to ascertain on the evidence. [342] Counsel for the Defendant Mr Sun drew attention to there being no claim for past care contending that it argued this point powerfully. [343]
The fact that there was no claim for the past is of little consequence in light of the constraints in s 141B of the 1999 Act.
The Plaintiff's evidence on this matter was brief. For internal domestic chores, his mother's age care worker does the internal chores for both of them. For outside tasks, he stated that his brother undertook the mowing and cleaning at the house. [344] In cross examination, he stated that he undertook the cleaning outside before the accident. [345]
The Plaintiff's evidence was to the effect that he would pay someone to do lawn mowing and home maintenance and things like that if he could afford it. [346]
The report of Dr Arnold indicated that there were issues with the ownership of the house in which the Plaintiff resides with his mother since she was "tricked" into signing over the house ownership to his sister. The Plaintiff advised that there were "caveats" on the property allowing the mother to remain in the house until she dies. Thereafter, the property is to be sold within 6 months and divided between the Plaintiff and his two siblings. In the meantime, it was recorded that the Plaintiff refuses to undertake any repairs to the house until his siblings agree to cost sharing. Dr Arnold also recorded that the Plaintiff indicated that he mowed the lawn but not as frequently as he did before the motor vehicle accident. Dr Arnold recorded that since the slip and fall, the Plaintiff has not been able to mow the lawn and his brother did so. There appeared to be some issue with the frequency with which he did so and Dr Arnold concluded that the situation appeared to relate to conflict in the family over the ownership of the house.
Ms Cezana indicated that gardening assistance was provided monthly by the brother at 2 hours per visit. The future needs were assessed at 0.25 hours per week.
The circumstances where commercial domestic assistance is to be provided has been discussed in Miller v Galderisi [2009] NSWCA 353, White v Benjamin [2015] NSWCA 75 and Smith v Alone [2017] NSWCA 287.
In Miller, the Court referred to four variables. The first was life expectancy of the Plaintiff, the second was the extent that the disabilities resulted for pre-existing conditions and not from the accident and thirdly that age alone is likely to create a similar need in later years. The fourth variable related to the circumstances of the carer. In this respect, the Court stated: 21 The fourth factor concerns the ability and willingness of family members to provide assistance. The primary carer was the respondent's wife. At the date of trial, she was 51 years of age. She was sufficiently fit and healthy to be providing the assistance he required at that time and, indeed, was in receipt of a carer's pension for that purpose. Undoubtedly age will weary her, but, apart from the usual contingencies, there was no reason to suppose that she would not continue to be able and willing to assist him for many years to come. Similarly, there was no evidence of likely inability on the part of the son, although he might relocate to an area too distant from his parents' home to permit him to provide regular assistance. However, his assistance was largely with lawn mowing and constituted a small part of the domestic assistance required. The likelihood that he would not be in a position to visit his parents on a sufficiently frequent basis to help in that regard was a contingency which should be taken into account, but was far from a certainty, both as to the event and its timing. 22 In Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643, Deane, Gaudron and McHugh JJ accepted that future events "may be predicted and the hypothetical may be conjectured" and required that the Court take its assessment of chance into account unless a particular chance was "so low as to be regarded as speculative - say less than 1 per cent". However, in most cases prediction and conjecture do not in practical terms allow for such precision. As explained by Brennan and Dawson JJ at 640, damages founded on "hypothetical evaluations defy precise calculation". In most cases, the exercise is better described as a form of speculation guided by knowledge of the plaintiff's past and expectations, derived from general experience, as to the future. 23 In Malec, the question was whether the damages caused by the accident would have occurred in any event. In the present case, the question is whether the damage which has occurred will result in a compensable loss at some future time, taking into account the contingencies referred to above. The possibility of such a loss is perhaps not entirely fanciful, but the chance of it occurring is slight.
In White v Benjamin, Basten JA with who Meagher JA agreed stated: [78] The second basis of the challenge to the assessment of domestic care was the rejection of the claim for services of commercial providers in the future. The temporal limits did not apply to such a claim. However, the acceptance of such a claim must rest on a finding that such services would at some point be availed of in place of the gratuitous services. (This element of damages is unusual because it refers not to the plaintiff's tortiously caused disability or incapacity, but the means by which she will address it: this factor follows from the differential approach required by statute to an assessment of a claim for gratuitous services.)
The Plaintiff gave no evidence as to the future assistance from the brother. Mr Nasser gave some evidence of knowing a brother named Charlie but spoke in uncomplimentary terms and described him as a "bludger." [347] Accepting that this is the same brother who performs the outdoor work there is an issue within the family as to the ownership of the house with the indication that it is to be sold after the mother passes and the proceeds are then to be divided. In the meantime, quite apart from his injury, the Plaintiff is recorded as not being prepared to do the work in any event in view of the family dynamics. The only evidence of the time that the task takes is 2 hours a month.
To the extent that the brother performs this work there is no evidence that it will not continue until the property is sold and the proceeds divided. The Plaintiff himself indicated to Dr Arnold no sense of obligation to perform the work or authorise attendance to the work.
It suffices to state that the evidence is insufficient to ground a finding that commercial services would be availed of in the future so as to support an award for domestic services on a commercial basis. I would make no allowance in this regard.

[36]

Out of Pocket Expenses

The Plaintiff effectively confined his claim against Millennium and Coles to one of non-economic loss and out of pocket expenses. Past out of pocket expenses were agreed in the amount of $845.05. [348]
The Plaintiff has claimed past out of pocket expenses totalling $23,303.66 against the Defendant Mr Sun.
The Defendant Mr Sun accepts liability of $3,643.44 paid pursuant to s 83 of the 1999 Act. Otherwise it disputes liability beyond 2017 for reasons including: 1. any claim beyond three months from the date of the motor vehicle accident is not related noting that the Plaintiff continued working full time and Dr Keller opined that the injuries were soft tissue strains to the cervical and lumbar spine that were temporary in nature; 2. the right shoulder is not related as the Plaintiff exhibited a full range of motion of both shoulders when he saw Dr Keller and all treatment including that of Dr Davè is not causally related, reasonable and necessary; 3. the Plaintiff's credit was in issue where he was able to work full time for seven months after the accident and his symptoms increased in frequency and severity over time. Reliance was placed on the opinion Dr Darveniza of 1 October 2020 where he stated that there has been an inexplicable deterioration in the clinical state historically and on examination; and 4. the treatment for Dr Teychenè was not reasonable and necessary for the reasons above as well as the fact that it relates to a 2000 accident.
I have earlier expressed my findings relating to aforementioned matters. In particular, I have not accepted the evidence of Dr Keller as to the nature of Plaintiff's injury or its duration. I have rejected the assertion that the Plaintiff's ability to work undermines the claim of the ongoing effects of the injury and I have found that the 2000 accident was of no relevant consequence. I have further accepted that the right shoulder injury was caused by the motor vehicle accident. It follows that I do not accept that the expenses incurred after 2017 and those relating to the right shoulder were not reasonable and necessary.
Accordingly, I would allow the claim in respect of the fees by Drs Davé and Antoine Sanki being items 1 to 27.
With respect to Dr Teychennè, it is difficult to understand the purpose of the extensive consultation and testing undertaken by him following October 2019. At that point, he had already come to the view that the Plaintiff didn't require further investigation of the spinal cord. He made clear in subsequent correspondence there was no available treatment for incomplete spinal cord and thereafter the Plaintiff embarked on obtaining treatment from Dr Mohammad and subsequently Dr Benjamin. I have not accepted Dr Teychenè's diagnosis. In the circumstances, consistent with my findings, I would allow items 28-43 but not items 44 to 61 which postdate treatment in 2019 and in my view have not been shown to be reasonable and necessary.
Items 72-83 being fees for Dr Kennedy, Dr McMahon and Dr Jefferson related to the Plaintiff's sexual and urological complaints. These are not allowed being not satisfied that they are causally related.
I would allow Dr Joseph Sanki's fees for items 84-85. Details of these services are described earlier in these reasons. In respect of Dr Joseph Sanki's fees for items 86-87, relating to an unknown CT and Ultrasound of the urinary tract) and Dr Arslan's fees for items 88 (GP mental health treatment plan on 12.02.2020) there is insufficient evidence that these were reasonable and necessary and causally related.
I would allow Dr Antoine Sanki's fees for items 294-295 and 297 to 314 at the charged rates noting that the portion paid by Medicare will need to be refunded. Item 296 being a disbursement for clinical notes appear to be a legal expense and is not allowed. Dr Antoine Sanki's fees for item 315 and 317 appear to postdate the provision of the clinical notes. Both are accepted arithmetically as having been incurred. I would allow these.
I would allow Dr Hanna items 89-199 excepting 91 (described as being for an infection to teeth), 130 (described for an ECG [349] ), 193 (which was described as being for GORD [350] ). I am not satisfied that the excepted items are causally related. I would allow Dr Caristo items 226-231, Mr Caballero physiotherapy items 268-271. Item 232 being a CT angiography by Dr Caristo is not allowed being not satisfied that it is causally related. I would otherwise accept the remaining items as reasonable and necessary.
I would allow items 242-243 for Dr Darwish, item 244 for Dr Pillay, item 245 for Dr Gupta, items 248-261 for Dr Mohammad, items 268-271 for Mr Caballero (physiotherapist), item 272 for Dr Nasibi being satisfied that they are all reasonable and necessary and causally related. I would not allow item 273 for Dr Gacs being not satisfied that it is causally related and reasonable and necessary.
In respect of Mr Khairallah, physiotherapist items 273 and 274 are allowed as agreed. As there is no evidence of the remaining consultations and no evidence that they are agreed arithmetically I would not allow items 275-293.
With respect to medication, the Plaintiff gave unchallenged evidence that he took no additional medication to that taken prior to the slip and fall. In those circumstances and noting my other finding, the Defendant Mr Sun should bear the cost of the medications I would allow all pharmaceuticals claimed except those for incontinence pads, zinc cream (item 387) antibiotic cream (item 397) Viagra (item 418) Vesicare (item 434), and Elastoplast (item446) being not satisfied that they are casually related. I would also not allow the stick (441) being not satisfied that it has been established that it is reasonable and necessary.

[37]

Future Treatment

The Plaintiff had particularised a claim for future out of pocket expenses of $74,682.98 of future GP and specialist appointments as well as medication and a contingency for surgery and psychiatric and psychological care. No claim was made for physiotherapy or occupational therapy despite the report of Ms Crezana and Dr Arnold recommending it. Ultimately, the Plaintiff advanced a claim for a buffer of $35,000. Counsel for the Defendant Mr Sun submitted that there should be a nil allowance for future out of pocket expenses.
Dr Darveniza opined that apart from medications and physiotherapy, he did not think any other treatments would be helpful although an orthopaedic surgeon recommended operative intervention to the right shoulder. [351] Dr Bodel estimated the cost of future surgery to be $10,000 to $12,000 if required [352] although he did not see a need for surgery. The Plaintiff expressed no desire to undertake any surgery. Dr Keller also was of the view that injuries did not require current or future treatment or paid assistance.
Dr Teoh indicated that the Plaintiff would require ongoing treatment of the psychologist every 6 months and a psychiatrist every 2 months for 12 months. He would also need to be on medication for two years. The cost of the psychologist would be $250 per session and the psychiatrist would be $350 per session this would come to a figure of $2600.
In the motor vehicle accident matter, I am of the view that an allowance should be made for GP visits, medication and the treatment recommended by Dr Teoh. Doing the best I can, I would allow a buffer of $12,000 in respect of future out of pocket expenses arising out of the motor vehicle accident.
In respect of the slip and fall accident, the Plaintiff claimed $5,000 for future out of pocket expenses. No substantive submissions were furnished to support this. Millennium and Coles submitted that no award should be made and that any further treatment the Plaintiff requires would have been required in any event as a result of the motor vehicle accident. Consistent with earlier expressed findings as to the effect of the slip and fall, there should be no allowance for future out of pocket expenses in respect of this accident

[39]

Endnotes

Harrington Custodian Pty Ltd's Defence. ( 9.01,2020) at [2(a)]
Millennium's Defence dated 17.09.2020 at [4].
Coles Defence dated 29.07.2020 at [6].
Mr Sun's Defence dated 6.01.2020 at [5].
Plaintiff's Statement of Issues and Mr Sun's Statement of Issues.
Plaintiff's Statement of Issues.
First Cross Claim (by Millennium) dated 08.06.2021 and the Second Cross Claim (by Coles) dated 20.09.2021.
T 307.24-.39.
T 239.11-244.36.
MFI 12.
Exhibit AV.
MFI 13.
MF1 14.
MFI 15
MFI 15
T 52.40 -.50 and 68.6-.11
T 17.43-.46.
Exhibit AA, p 800.
Exhibit AA, p 546.
Exhibit Z, p 504.
The Statement of Claim pleaded that the location was in Ashfield which was consistent with what was stated in the report of Dr Thomas J Gibson at Exhibit B p99 at [5].
Exhibit B, p116 at [62].
Exhibit B, p116 at [63].
T 33.4-.11.
T 34.9-.14.
T 34.50-35.3.
T 35.26-36.2.
T 36.4-.11.
Exhibit AP, p1468.
T 76.31-.49.
Exhibit AB, p1096.
Exhibit AB, p1106
T 77.35-.45.
T 77.47-.49.
T 78.30-.32.
T 78.43-.48.
Exhibit Q, p444.
T 79.3-.32.
Exhibit Q, p429.
T 81.16-.19.
T 85.25-.27.
T 86.6-.8.
T 86.10-.12.
T 86.25-.29.
T 86.30-.40.
T 141.23-.34.
T 145.37-.44.
T 146.31-.40.
T 147.20-.24.
T 147.39-.45.
T 148.1-.4.
T 149.19-.25.
T 149.38-150.10.
T 150.44-.46.
T 151.8-.16.
151.44-152.4.
T 154.12-.14.
T 154.39-.49.
T 155.29-.34.
T 155.39-.43.
T 156.42-.47 - Public Address.
T 157.27-.29.
T 158.17-.25.
T 158.34-.43.
T 221.48-222.7.
T 223.41-.44.
T 224.38-225.5.
T 129.41-.42.
T 134.15-.30.
Exhibit AM, p 1455.
Exhibit P, p395.
Exhibit AC p1107
Millennium's written submissions at [56] and Millennium's Defence dated 17.09.2021 at [6(a) and (c)].
Millennium's Defence dated 17.09.2021 at [6(c)].
Plaintiff's written submissions at [35]
Plaintiff's Further Amended Statement of Claim dated 29.05.2020 at [8].
Coles' written submissions at [1] and Coles' Defence dated 29.07.2020 at [8].
Exhibit AC, p1107.
Coles' written submissions at [5]-[6].
Plaintiff's written submissions at [37].
T 246.6-.9.
Millennium's written submissions at [57].
Coles' written submissions at [6].
Coles accepted this to be the case at T 246.5-.10. Millennium mentioned this at [69] of it's written submissions but did not submit otherwise.
Exhibit AQ
T 134.7-.30.
Exhibit AB.
Exhibit AO, p1466.
Exhibit AQ.
T 301.32-.39.
T 149.20.
T 147.13-.35.
T 154.39-.49.
Coles' written submissions at [15].
Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [129].
Exhibit AB, p1106.
Plaintiff's written submissions at [49].
Exhibit AE, p1188.
Plaintiff's written submissions at [51].
T 305.28-.49.
See Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [38].
T 224.50-225.3.
Exhibit AD, p1148-1184.
T 254.1-.5
T 253.31-.47 and Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 at [81].
T 260.10-.11.
Exhibit AD, p1172 and 1175.
Exhibit AD.
Exhibit AM, p1460.
Exhibit AM, p1454.
Plaintiff's submissions at T 306.44-307.8; Coles' written submissions at [18].
Strong v Woolworths (2012) 246 CLR 182 at [19].
T 20.46-.48.
T 22.22-.38.
T 22.43-.50.
T 23.5-.6.
T 23.27.
T 23.40-.44.
Exhibit AA, p 801.
Exhibit AA, p 546.
Exhibit Z, p 483.
Exhibit AA, p 802.
Exhibit AA, p 803.
Exhibit AA, p 803.
Exhibit Z, p483.
Exhibit Z, p 482.
T 28.34-.36.
Exhibit Z, p481.
Exhibit AA, p542.
Exhibit AA, p804.
Exhibit AA, p 542 and 644.
Exhibit Z, p481.
Exhibit AA, p542.
Exhibit Z, p 511.
Exhibit AP, p1507.
T 25.50-26.1.
T 26.26-.40.
T 28.26-.28.
Exhibit AA, p542 and 647.
Exhibit AA, p541.
Exhibit AA, p541.
Exhibit E, p 278.
Exhibit Z, p481.
Exhibit U, p465-6.
Exhibit V p467.
Exhibit F, p285.
Exhibit AA, p808. The report is dated 21 May 2018.
Exhibit AA, pp540-1 and 653-668.
Exhibit F, p287.
Exhibit Z, p480.
Exhibit AA, p539.
Exhibit AA, p 669.
Exhibit E, p 281-3.
Exhibit AA, p538.
Exhibit AA, p 538.
Exhibit AA, p538.
Exhibit Z, p480.
Exhibit AA, p538 and 671.
Exhibit Y, p471-2.
Exhibit Y, p471-2.
Exhibit D, p276.
Exhibit AA, p538.
Exhibit Z, p479.
Exhibit AA, p537.
Exhibit Z, p479.
Exhibit Z, p 478.
Exhibit Z, p478.
Exhibit Z, p478.
T 97.12-.18
T 97.13-.18
T 102.5-.10
Exhibit Q.
Exhibit AA, p478
Exhibit Z, p477.
Exhibit O, p1654.
Exhibit Z, p 477.
Exhibit Z, p477.
Exhibit AA, p477.
Exhibit Z, p 476.
Exhibit AA, p532.
Exhibit AA, p532.
Exhibit AA, p532.
Exhibit Z, p476.
Exhibit X, p470.
Exhibit Z, p475.
Exhibit X, p470.
Exhibit G, p288.
Exhibit Z, p475.
Exhibit Z, p474.
Exhibit Z, p474.
Exhibit Y, p 471.
Exhibit Y, p 472.
Exhibit G, p 289.
Exhibit Z, p474.
Exhibit Z, p474.
Exhibit Z, p474.
Exhibit G, p290.
Exhibit AV.
T 31.9-.32.
Exhibit H, p303.
Exhibit H, p293
Exhibit H, p295
Exhibit H, p296
Exhibit H, p296.
Exhibit H, p296.
Exhibit H, p299.
Exhibit H, p302.
Exhibit H, p320.
Exhibit H, p321.
Exhibit H, p322.
Exhibit H, p323.
Exhibit H, p329.
Exhibit H, p333.
Exhibit H, p336.
Exhibit H, p338.
Exhibit H, p341.
Exhibit H, p344.
Exhibit H, p347.
Exhibit H, p350.
Exhibit P, p350.
Exhibit H, pp323-353.
Exhibit H, p341.
Exhibit H p341-2.
Exhibit H p349.
Exhibit H, p352.
Exhibit H, p352.
Exhibit H, p353.
Exhibit L, p380.
Exhibit L, p380.
Exhibit L, p383.
Exhibit J, p354-355.
T 46.50-47.2.
Exhibit K, p357.
Exhibit K, p 371.
Exhibit K, p360.
Exhibit K, p362.
Exhibit K, p363.
Exhibit K, p364.
Exhibit K. p365.
Exhibit K, p 366.
Exhibit K, p367.
Exhibit K, p369.
Exhibit K, p376.
Exhibit K, p379.
Exhibit M, p 385.
Exhibit M, p 390.
Exhibit P, p397.
Exhibit P, p424.
D (Sun) Exhibit 3.
Exhibit N, p992-1003.
T 87.11-88.12.
T 88.14-.32
Exhibit N, p999.
Exhibit AP, p1513.
Exhibit AP, p1514.
Exhibit AP p1515.
Exhibit AP, p1526.
T 294.25-.37.
MFI 10 - Plaintiff's written submissions at p 14 and T 294.43-.45.
T 295.1-.6.
T 295.6-.11.
T 296.2-.8.
MFI 13 at [2].
MF1 13 at [3].
MFI 13 at [6].
Exhibit L, p 383.
T 20-30-.50 and T 21.10-.11.
D (Sun) Exhibit 3, (report dated 24.08.2020) at p8.
Defendant Mr Sun's written submissions (11.10.21) at [6]
T 46.11-.13.
T 86.35-.40.
MFI 10 - Plaintiff's written submissions at [69].
T 76.35-.40.
T 130.46.
Exhibit AQ.
Coles written submissions at [33].
T 77.35-.50; 78.50-79.3; 79.15-.20; 81.10-.20; Exhibit Q, p429 and Exhibit AR, p1096-1097.
T 85.21-35.
T 85.45-86.7.
Exhibit L, p 383.
T 86.10.
T 31.9-.26.
T 31.28-.30.
T 41.19-20.
T 86.40.
See Coles written submissions at [20].
Coles written submissions at [27].
T 87.10-.50; T 88.10.
Exhibit 3 (D Sun) at p 1473.
Exhibit 3 (D Sun) at p 1488.
T 86.14-.41.
T 87.5-88.11.
T 43.19-.21.
T 98.1-.6.
Millennium Hi-Tech Group Pty Ltd written submissions at [85].
Exhibit M, p388.
Exhibit K, p374.
Exhibit L, p382.
Plaintiff's written submissions at [22]-[23].
T 269.30-38.
T 57.7-.11.
T 51.7-.8.
T 62.17-.26.
T 62.48-49.
T63.22-.23.
T 49.24-.34.
T 58.41-.50.
T 111.16.
T 111.22-.37.
T 112.27-.30.
T 112.30-.31.
T 115.42-.44.
T 118.36-.38.
T 112.40-.47
T 265.43-266.5
T 266.40-.45.
T 267.36-.45
T 270.45-.47
T 270.39-271.40
T 271.44-272.2.
T 273.10-.15
T 266.10-267..18
MWJ V R [2005] HCA 74 at [40]; (2005) 80 ALJR 329; 222 ALR 436
D (Sun) Exhibit 2, Letter from ATO dated 21 October 2019.
Exhibit D, Sun 1.
Exhibit D, Sun 1.
T 7.25-.8.9.
T 8.11-.16.
T 66.34-.35.
T 73.14-74.28.
T 74.37-.43.
T 75.14-.35.
T 75.29-.31.
T 110.9-.10
T 110.16-.20
T 279.16-.18.
T 268.15.
White v Combridge (1984) 59 ACTR 18 and Mott v Crest Cabinets [2004] QSC 096 at [100].
T 25.23-.31.
See Plaintiff's written submissions at [31] - Commercial rates derived from Exhibit AS.
T 68.37-.38.
T 281.35-.44.
T 281.20.
T 43.30-44.12.
T 69.15-.19.
T 48.36-.40.
T 104.1-.5.
MFI 12.
Electrocardiogram
Gastro-oesophageal reflux disease
Exhibit L, p381.
Exhibit K, p363.

Azzo v Sun; Azzo v Harrington Custodian Pty Ltd, Millennium Hi-Tech Group Pty Ltd and Coles Supermarket Australia Pty Ltd

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (40 paragraphs)

Legislation Cited (4)

Cases Cited (26)