El-Mohamad v Celenk

THE 2009 ACCIDENT AND ITS SEQUELAE

1. Ms El-Mohamad, in her evidence, described that the 2009 accident occurred when she was making a right‑hand turn into a driveway and a car heading towards her collided into the left‑hand side of her vehicle. In the weeks and months afterwards, she felt pain in her neck and lower back. She gave the following evidence-in-chief in these proceedings (T18/18-38): "Q. I want you to think about the moment just before the second accident and explain to the Court what your symptoms were from the first accident in as much detail as you can? A. Excruciating pain. My neck, my back, my lower back, radiating pain in my legs, numbness, tingling in my feet and fingertips, constant tension headaches. … Q. I'm asking you to tell us about your symptoms in early August 2010, so the first week of August? A. The first week of August was excruciating pain. I could not walk in the office within the first couple of hours. A first aide [sic] assistant attended to me and wheeled me in a wheelchair over to the medical centre." Counsel asked Ms El-Mohamad a third time (T18/49-19/6): "Q. No, I'll try to make this more clear. You've given evidence about the symptoms that you had after the 2009 accident. I am asking you to explain what those symptoms were like just before the second accident, so early August 2010? A. Okay, I think I understand now. Manageable is one way I can put it. Q. What do you mean by manageable? A. The pain wasn't very bad. I was able to attend to work, attend to myself."
2. Ms El-Mohamad felt unable to answer a question about her mental state prior to the first accident but said that when she returned to work it was "manageable": there were days when the pain was worse than other days, but that she was able to get up, get dressed, get to work and try to move forward and push on. In cross-examination, Ms El-Mohamad accepted that she regularly saw her treating general practitioner, Dr Guirguis, in the eight months after the first accident, that she was referred to a neurosurgeon and spinal surgeon, Dr Darwish, and that she complained of lower back pain going down both of her legs, neck pain and tingling in both hands.
3. Ms El-Mohamad said that in June 2009, shortly after the first accident, as recorded in medical reports, she would shower on her own but would need to wait for the "pain not to be bad", that she always had trouble with showering on her own and "being able to stand up for too long" (see the reference to Lucinda Smith's report in this judgment below). She gained weight after the first accident and has again since the second accident.
4. Ms El-Mohamad had a problem walking after the first accident. She was "more bracing [herself]", and also had a problem standing, but she thought that problem "might have increased since the second accident". She gave evidence that in February 2010 she could walk like a normal average person but that she was afraid of someone nudging her or barging into her.
5. On 15 September 2009 Dr Guirguis certified Ms El-Mohamad unfit for work for three months. In February 2010 he certified her as unable to walk for more than 50 metres at a time. Twelve months after the first accident, Ms El-Mohamad had gained weight and she was in June 2010 taking Nurofen Plus, ibuprofen, Tramadol and Panadeine Forte. The report of the occupational therapist, Ms Smith, in June 2010 evidences that Ms El-Mohamad was concerned with her ability to sustain herself at work, that she felt unable to cope with working long hours and that she was experiencing neck, shoulder and back pain at a level of seven to nine out of ten, including severe and unremitting, constant neck pain.
6. In cross-examination, Ms El-Mohamad had resisted answering questions concerning the distance she could now walk compared to the 50 metres in June 2010. However, in June 2010 Ms Smith summarised Ms El-Mohamad's complaints as being: able to sit for 35 to 45 minutes only, stand for a few minutes, needing to avoid bending, squatting or kneeling, needing to push off furniture to transfer from sitting to standing, difficulty with stair climbing and generally avoiding lifting and carrying. In respect of domestic assistance, Ms El-Mohamad claimed a need for assistance in grooming, showering, toileting and dressing, adding in each case about five to 12 minutes per day for those activities. In June 2010 Ms El-Mohamad suffered poor quality sleep, did not assist with cooking, and required assistance with tidying, vacuuming, sweeping, mopping, dusting, bathroom cleaning, laundry and bed making. The report also indicates, perhaps with some lack of clarity, that Ms El‑Mohamad was unable to shop for fruit, vegetables and groceries. The report concludes that she needed almost ten hours per week additional assistance. Certain aids and equipment were recommended by Ms Smith as reasonable and necessary, although there was no evidence that to date they have been purchased by Ms El-Mohamad.
7. Ms El-Mohamad, in cross-examination, did not recall any occasion in her adult life when she had received assistance with toileting. As Ms El-Mohamad had accepted that the report of Ms Smith indicates what she said at the time, her answers at trial indicate that unlike in June 2010 in respect of toileting, she no longer requires assistance. She also accepted that she did not assist with food preparation in June 2010 because of her injuries, nor did she assist with general tidying, tidying up her room, vacuuming, sweeping, mopping, dusting, bathroom cleaning, laundry and bed making. When asked if in June 2010 she was performing any housework at all she answered, "For a long time I haven't been." She was unwilling to accept that in June 2010 her injuries precluded her from going shopping.
8. By June 2010, Ms El-Mohamad had exhausted all of her sick leave, annual leave and other leave entitlements and time off work was taken as unpaid leave.
9. She accepted that in June 2010 she suffered from constant dull and aching pain in her lower back, from neck pain going down into the top of her shoulders and from headaches. She accepted that her level of pain was nine out of ten when she spoke with Ms Smith, more extreme than her pain in the witness box
10. On another occasion when asked about her health after the 2009 accident Ms El-Mohamad stated, "I don't remember how my health was and how much pain I was in at that time."
11. Ms Celenk submitted that the reports of Dr Bodel, Ms Smith (both of whom were retained by Ms El-Mohamad) and Dr Dowda and Dr Bodel's oral evidence all indicated that Ms El-Mohamad suffered or complained of suffering before the 2010 accident from all of the symptoms and disabilities of which she now complains, complained that she did not improve after the 2009 accident, that she was in constant and severe pain and that she had difficulty with domestic tasks.
12. Ms El-Mohamad accepted, in submissions, that there was no contemporaneous documentary material indicating improvement in her condition prior to the 2010 accident.

AFTER 2010: MS EL-MOHAMAD'S EVIDENCE

1. Ms El-Mohamad gave evidence-in-chief that her pain has intensified between 2010 and now, that she has "constant pain", or "most days it's painful" and that "[t]hings got much worse for me after 2010" (not specifically August 2010). She testified that she could sit down comfortably for 20 minutes to half an hour and could comfortably stand for "not very long". She can drive a motor vehicle for 30 to 40 minutes before her "pain intensifies greatly". She has disrupted sleep and low energy levels now, whereas she was energetic before 2010.
2. Eventually, after the 2010 accident Ms El-Mohamad returned to work for four hours a day, three days a week. She found it extremely difficult to "sit and stand and focusing on work and concentrating" and was "[e]xtremely tired and exerted [sic] in pain" at the end of the day. Ultimately, in February 2014 she was medically retired on a package that involved payment of a proportion of her salary, perhaps approximately $1,300 net. I was informed, without controversy, that these fortnightly payments were not to be taken into account when assessing any economic loss.
3. Ms El-Mohamad's treatment after the 2010 accident involved some physiotherapy - which was helpful "[t]o some degree for a couple of days" - hydrotherapy - which was not helpful - and chiropractic, which helped temporarily for a day. She also saw a psychologist which she did not find beneficial.
4. Spinal fusion surgery has been discussed or recommended (both before and after the first accident) but so far Ms El-Mohamad has not decided to undertake that.
5. Ms El-Mohamad says she needs domestic help from her mother or sister putting on socks, pants, and assistance with putting on a bra. She says this help has been needed for a long time, since the first accident, or for a period she could not remember. Sometimes she gets assistance washing her back or hair in the shower. She does not vacuum and receives help from her mother or sister with cooking, making the bed, tidying her room and washing her clothes.
6. Ms El-Mohamad submitted that her pain levels and difficulties with domestic tasks have worsened since the 2010 accident but this deterioration is difficult to identify in the material. Ms Smith's report, based on Ms El‑Mohamad's instructions, indicates that her difficulties with domestic tasks were at least as great before the 2010 accident as now, perhaps even worse as she no longer receives any help with toileting. Ms El-Mohamad relied on the change in Dr Bodel's report after the 2010 accident from dull, aching pain to sharp pain. Dr Bodel has not emphasised this as a change in her condition and he accepted that he was largely reliant on the history provided by Ms El-Mohamad.

OTHER EVIDENCE

1. Ms El-Mohamad also relied on the evidence of her mother, Fatima, and sister, Alaa. Her sister's evidence indicated that the help provided to Ms El-Mohamad was not greater than and probably less than the assistance needed by Ms El-Mohamad before the 2010 accident according to the June 2010 report of Ms Smith.
2. Ms El‑Mohamad's sister gave evidence wearing a niquab covering her face apart from her eyes. No objection was taken and the matter was not raised by the Court. Members of the Court were informed subsequently by the Australian Senior Imam at a District Court Conference (after the evidence but before submissions) that this garment does not reflect any religious requirement and the proper respect for the Court requires the removal of the niquab in court. However, as the matter was not raised, I do not regard it as any indication by the witness of disrespect. Nevertheless, it is difficult to give full weight to the evidence of a witness when demeanour cannot properly be assessed because of a face covering. In any event, the evidence of Ms El‑Mohamad's younger sister, aged about ten at the time of the earlier accident, does not take the matter very far.
3. Ms El-Mohamad's mother gave evidence that Ms El-Mohamad was much improved prior to the 2010 accident. That is not supported by the 2010 reports or accounts given by Ms El-Mohamad recorded in those reports. Either the mother's recollection about the condition of her elder daughter before August 2010 other than before May 2009 is faulty, or Ms El-Mohamad's account of her difficulties in 2009 after the first accident is untrue and her credit is thereby damaged. Neither alternative assists Ms El-Mohamad in establishing the damages she claims.
4. Ms El-Mohamad submitted that, "This was not a case where credit ought to loom large." I do not accept this. Whether Ms El-Mohamad has suffered disabilities and whether they resulted from the second accident was significantly affected by her oral evidence. In neither evidence nor submissions did Ms El-Mohamad provide any satisfactory explanation for the report of Ms Smith of Ms El‑Mohamad's extensive disabilities and need for care in the two months prior to the second accident.
5. The credit of Ms El-Mohamad also suffered in two other ways. First, Ms El-Mohamad was asked about trips away from Sydney since the 2010 accident and she gave evidence of "one or two occasions", although she could not remember when or where she went. She could not recall where she had been outside of Sydney since August 2010, but one had been a short break, not a day trip, and one was "maybe for a week".
6. In answer to whether she flew or drove, Ms El-Mohamad said her parents drove. She did not think the trip was to Queensland or to Victoria. Yet when Ms El‑Mohamad was directly asked, she conceded that she had taken a trip for three months to Lebanon including to see her father. No satisfactory explanation was given as to why she did not refer to that trip, nor was any explanation given about how she managed, whether she had family assistance or companionship on the journey, or how she faced the challenge of sitting for long periods of time on a plane.
7. The only explanation I can perceive consistent with honesty, in Ms El‑Mohamad not referring to this trip in her evidence before it being directly put to her that she had travelled to Lebanon, is that her memory is so poor that she could not recall it. However, such a poor memory makes it difficult to rely on her evidence about her disabilities and the dates (whether by reference to the motor vehicle accidents or otherwise) when they were present.
8. The other matter problematic to Ms El-Mohamad being accepted as a witness of truth is a lengthy video showing her shopping at Flemington Market and engaging in other activities in April 2013 (Exhibit 4). This video showed Ms El‑Mohamad on her feet shopping for a lengthy period, picking up and sorting through clothing, trying on clothes, walking in a relatively busy shopping area, bending, turning, carrying a shopping bag and navigating past other shoppers, all without any apparent difficulty. The video also showed Ms El-Mohamad entering and alighting from her car, driving, repeatedly walking across the street with a shoulder bag, and on one occasion, carrying a plate of food in one hand and eating with another while crossing the street. Apart from one occasion of entering her car, her activities were undertaken in an entirely normal and ordinary fashion, manifesting no pain, difficulty, tiredness, guardedness or stiffness. Whilst I accept that no video can fairly display all the challenges faced in a normal day, it displayed movements and activities which were quite inconsistent with both the movement of Ms El-Mohamad to and from the witness box and her descriptions of her pain and difficulties in the witness box and in the histories given by her to medical persons. When in the witness box, Ms El-Mohamad regularly took a break from sitting by standing for a short period, but otherwise did not manifest, to my observation, any significant levels of pain by grimacing, by any audible utterance or by unusual levels of movement whilst sitting. She conceded that her pain levels in the witness box were not at a level reached at the time she spoke to Ms Smith in June 2010. Ms El-Mohamad denied that she had falsified or exaggerated her disability.
9. I also take into account the Medical Assessment Service ("MAS") assessment of 0% whole person impairment, which precludes Ms El-Mohamad claiming non-economic loss damages. I note that some of the reports, including those of Dr Harvey-Sutton, Dr Machart and Prof Ehrlich, conclude that Ms El-Mohamad's disabilities cannot be attributed to physical injury in 2010.
10. In all the circumstances, I am not satisfied that Ms El‑Mohamad's disabilities were of anything like the magnitude she maintained in the witness box and to the medical experts who prepared reports. It may be, as she submitted, that her claims for assistance maintained in the June 2010 report of Ms Smith would likely have been discounted had her claim for damages for the first accident ever gone to trial, but that is of little assistance in this case. If she made exaggerated claims to Ms Smith about her need for assistance in June 2010, it is difficult to conclude that she has not made similarly exaggerated claims subsequently.
11. Perhaps the high point of Ms El-Mohamad's case is the opinion of her treating doctor, Dr Guirguis, which indicates, perhaps not unambiguously, that the 2010 accident produced a tear in her lumbar spine. He said: "5. On 19/05/09 Miss El Mohamad consulted me regarding her neck and shoulder pain for which she had a medical certificate. Her MRI for her neck on 16/10/09 showed only spurring at C5/6 causing bone encroachment of the neural foramina. a) Ms El Mohamad was stabilised on treatment before the accident on 23/8/10 with physiotherapy and exercise. She actually was working and performing her duties. The accident on 23/8/10 caused her previous injury to increase, flare up and become much worse. She developed a tear in her L5/S1 disc which was not there before in her first MRI on 16/10/09. b) As mentioned above her injury is not only aggravation but a new injury and she has not even started any treatment except the stretching exercises at home to hasten her improvement. It has been about 7 months since her injury and she didn't receive any physical treatment, no physiotherapy hydrotherapy or even a gym supervised program as her insurance company was still investigating her injury."
12. Dr Bodel stated on 7 November 2011: "This lady has suffered a further soft tissue aggravation of the previous injury to the neck and back as a consequence of this second motor vehicle accident" and on 5 January 2015, that her injury was "further aggravated by the second injury in August of 2010. This lady's ongoing pathology clearly relates to both accidents". The psychiatrist, Dr Bertucen, stated on 2 November 2011 that: "[T]he second accident on 23 August 2010 which has caused demonstrable physical pathology in the lumbar spine has also worsened her previous pain and physical disability."
13. Neither Dr Bodel nor, it appears, Dr Bertucen viewed the video. Dr Bertucen assessed Ms El-Mohamad in June 2010 as suffering from a chronic adjustment disorder with distressed mood and featuring anxiety, a diagnosis repeated after the second accident, although he thought the condition was "considerably augmented by the circumstances of the second accident".
14. Dr Bodel, whose speciality as an orthopaedic surgeon suggests that he is to be preferred on matters of spinal injuries over a psychiatrist or general practitioner, was considerably less certain in oral evidence about his earlier conclusions. Accepting that the tear, indicated by the MRI after the second accident, was "consistent with degenerative change", his conclusions were "largely" based on the acceptance of the history provided by Ms El-Mohamad, and accepted that, "[t]here's no suggestion that the changes you saw on MRIs were caused by the August 2010 accident". This evidence impacts on Dr Bodel's conclusion in June 2010, that Ms El-Mohamad may have been able to work 20 hours a week, compared to his later conclusion that she may be able to undertake light duty work if her pain levels are remedied.
15. Two other matters might have indicated an adverse change from the 2010 accident: Ms El-Mohamad's employment and that she underwent a spinal injection procedure in addition to the more conservative treatment of hydrotherapy, physiotherapy, psychological counselling and chiropractic.
16. Ms El-Mohamad submitted that as she was medically retired after the second accident, she must have suffered damages from it. This submission confuses coincidence in timing with causation. The question remains whether the medical retirement was caused by the second accident.
17. Ms El-Mohamad's employment details were sketchy after the 2009 accident. Her chronology in the proceedings mentions the accident but does not mention the periods of time off work that she took. She gave evidence that after the accident on 16 May 2009, she had a few months off work. The records indicate that, apparently in addition, she was certified by Dr Guirguis as unfit for duties from 16 September to 16 December 2009 and as unfit to walk more than 50 metres from 5 February 2010 to 5 May 2010 and from 26 May 2010 to 26 August 2010, a few days after the second accident. Dr Noll recorded that after the first three months she: "then returned to work sporadically working only a few days per week and being on and off work at intervals. She had difficulty providing any details of her work …and indicated that her memory is very poor."
18. Thus, the extent to which Ms El-Mohamad actually worked in the period between the two accidents (from May 2009 to August 2010) was not clear and may have been insubstantial. The MAS assessment on 7 December 2010 noted that: "She attempted to return to work but found her pains increased. In general, over the remainder of 2009, early 2010 she would work when she could, using up all her sick leave and annual leave."
19. Notably, Ms El-Mohamad, in disclosing to Dr Noll her extensive absences from work, including from 2010, refrained from attributing any significance to the 2010 accident. Dr Noll was a medico-legal expert retained in the proceedings arising from the 2009 accident by the defendant in those proceedings.
20. Ms El‑Mohamad submitted that an adverse inference should be drawn against the defendant in respect of Ms El‑Mohamad's work performance by reason of the circumstance that the defendant subpoenaed, but did not call, two of Ms El‑Mohamad's former co‑workers. In my view, those workers were not to be seen as naturally aligned with Ms Celenk in the proceedings, and in any event, the absence of evidence about Ms El‑Mohamad's work performance does not establish positively anything about it.
21. In all these circumstances, I am not satisfied that the work performance of Ms El‑Mohamad was so different after the 2010 accident as to constitute evidence indicating further aggravation or damage.
22. Finally, there is the matter of the spinal injection. Because of its risks, invasive treatment is, in my opinion, strong evidence that the patient has a real problem and is seeking relief.
23. Dr Darwish, a neurosurgeon and spinal surgeon retained by Ms El‑Mohamad, noted a disc bulge at the L4/L5 and L5/S1 levels on a CT scan on 17 July 2009 with "the disc at L5/S1…more on the left side potentially compressing the left S1 nerve root".
24. Four months later, on 21 October 2009, Dr Darwish noted that the "MRI scan of the lumbosacral spine showed central L5/S1 disc protrusion more on the left side contracting both S1 nerve roots". Dr Darwish then advised a "left S1…epidural block".
25. Subsequently, an MRI scan on 12 November 2009 showed "L5/S1 disc dehydration and small tear but no obvious root ... compression". Dr Darwish said among other things, "I am going to organise a right L5/S1 epidural cortisone injection." Thus, the injection was recommended before the 2010 accident, although not implemented until after the accident. The spinal fusion recommended by Dr Darwish has not yet been implemented.
26. In my view, the undertaking of the spinal injection in these circumstances, while it corroborates that Ms El‑Mohamad has lower back pain not readily manifest in the video, does not indicate that that pain was aggravated by events in August 2010.
27. Ms El‑Mohamad did attend Dr Guirguis on 27 August 2010 and about twice a month thereafter. A similar level of attendance upon Dr Guirguis occurred throughout 2009. I am not satisfied that the attendance resulted from the 2010 collision, noting that at the time Ms El‑Mohamad was certified still unable to walk 50 metres and complained of being unable to sit comfortably beyond 30 minutes, a period she is likely to have exceeded in driving from Parramatta to the city after her hearing test (immediately after the second accident) on 23 August 2010.
28. Ms Celenk's insurer paid $894 in treatment expenses in the six months between the second accident and Ms El‑Mohamad's trip to Lebanon pursuant to s 83 of the Motor Accidents Compensation Act 1999. This constitutes an admission of liability. However, it appears to have been withdrawn in the defence in denying liability and no point was taken as to whether the withdrawal was with or required leave. No cross‑claim is made for recovery of the expenses paid, and the insurer expressly abandoned any entitlement, if it had one, to recover. I do not think the payment operates in any substantial way to establish the liability of the defendant.
29. In all the circumstances, I am not satisfied of factual causation referred to in s 5D of the Civil Liability Act 2002. That is, I am not satisfied that any disability or pain resulted from the minor collision that occurred on the morning of 23 August 2010 in the sense that Ms El‑Mohamad suffered any subsequent pain or disability that would not otherwise have occurred. In those circumstances, there shall be judgment for the defendant.

ORDERS

1. The orders of the Court are: 1. Judgment for the defendant. 2. Question of costs to be reserved to a date to be fixed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2016