Chau v Danh & Anor

CITATION: Chau v Danh & Anor [2009] NSWDC 287

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 CASES CITED: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 29 Mason v Demasi [2009] NSWCA 227 State of NSW v Moss [2000] NSWCA 13 Stretenovic v Reed [2009] NSWCA 280 Strinich v Singh [2009] NSWCA 15

14. I conclude that the evidence of the plaintiff and her daughters stating that she carried out normal household activity prior to the motor vehicle collision is inaccurate in light of the content of Exhibits "3" and "4". Further, in my view, it is of significance that no evidence was called from the plaintiff's husband on the issue of the plaintiff's level of domestic functioning after her recovery from the surgery in 1998 and before the collision in question. This is despite the fact that it appears that he still provides her with some domestic assistance, which indicates that he would have been available to give evidence if required. These circumstances lead me to infer that his evidence would not have been of assistance to the plaintiff's case in defining the differences in the plaintiff's level of personal and domestic functioning before and after the collision : Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 29. These findings have some significance to the assessment of a number of the claimed heads of damage.

51. Dr Barrett noted the history that in the domestic setting Mr Chau always did most of the cooking and housework. I view that summary with caution because although Dr Barrett had the benefit of an interpreter when he took a history from the plaintiff, in the absence of a relevant insight into the questions and answers that led to that summary, I do not regard that statement as an absolute admission against interest by the plaintiff especially because in a later clarification letter, in answer to a query concerning this issue, Dr Barrett stated that the comment he had made concerning the plaintiff's husband doing most of the cooking and housework was based on his impression : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320. Dr Barrett confirmed that the plaintiff had been left with disabilities that were partly due to the collision and partly due to the previous cerebral problem. Significantly, he expressed his opinion that the examination of the plaintiff was straightforward and without evidence of exaggeration or embellishment.

61. First, it is plain on the face of Dr Whetton's report that he has erroneously assumed the plaintiff had a past history of a brain tumour when in fact the correct history was that of a cerebral abscess. There may or may not be neuro-anatomic, neuro-chemical or neuro-physiological differences resulting from these two entirely different entities that could have an influence on the plaintiff's complaints. I am not entitled to speculate on the answer to this question and will not do so : Strinich v Singh [2009] NSWCA 15; Stretenovic v Reed [2009] NSWCA 280. However since the question arises and remains unresolved by expert explanation I consider Dr Whetton's erroneous assumption to significantly detract from the weight of his expressed view, particularly since he seems to have formed his views on the basis of demeanour and, on his own acknowledgment, he has based his assessment on his own objective findings without apparent recourse to clinical records where, in my view, such records would be an important point of reference for the purpose of arriving at a diagnosis and causal connection between psychological problems and an antecedent injury.

68. The plaintiff's remaining disabilities due to the collision are within definite and circumscribed parameters. I consider this to be an appropriate case in which to place reliance on the evidence contained in the medical reports to garner the detail of the plaintiff's continuing disabilities : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25. Accordingly, I summarise the plaintiff's ongoing disabilities in the following paragraphs.

82. Notwithstanding this finding, given the plaintiff's documented significant residual physical problems, I nevertheless consider that an assessment of damages for the value of such services is required. Having rejected the evidence of the plaintiff and her daughters concerning the detail of the incidence of the provision of such services I consider that I must look to other sources from within the evidence to assist with quantification in order to do the best I can with the limited information that is available for analysis : State of NSW v Moss [2000] NSWCA 13.

(1938) 60 CLR 336

(1959) 101 CLR 29

[2008] NSWCA 320

[2009] NSWCA 280