Hamaidi v Xu

District Court of NSW|2018-02-01|Before: Mr P

Judgment

HIS HONOUR: Abdelkader Hamaidi brings an action for motor accident damages. The plaintiff is a taxi driver. On 26 September 2015, after 2 pm, the plaintiff was lawfully driving his taxi numbered T1509 along the Pacific Highway at North Sydney travelling north. Another taxi driven by the defendant, which was on the plaintiff's right-hand side, attempted to turn into a street on the left in front of the plaintiff's vehicle. That caused the two taxis to collide. In a defence filed on 25 August 2017, the defendant admitted breaching the duty of care which he owed to the plaintiff. However, the defendant did not admit that the plaintiff suffered any injury, loss or damage. Since an action in the tort of negligence is an action in case rather than trespass, the defendant has not admitted liability because to do so would be at admission that the plaintiff had suffered some injury, loss or damage. The defence does not raise any defence of contributory negligence.
The issues, therefore, before me are whether the plaintiff suffered any injury, loss or damage and, if so, as to the extent of it. Ultimately, there was no dispute that the plaintiff suffered some loss. It was agreed between the parties that the plaintiff's out of pocket expenses amounted to $3,621.80.

The plaintiff's background

The plaintiff was born in Tunisia in 1984. He is currently 33 years old. In 2006, the plaintiff was still studying in Tunisia to become an electrician (using English nomenclature) when an opportunity arose for him to come to Australia. He came to Australia on 11 January 2007 when he was 22 years old. He came on a tourist visa. However, problems promptly arose between the plaintiff and the government of Tunisia, I infer, the government in power prior to what is popularly called the Arab Spring. The plaintiff was, sometime shortly after his arrival in Australia, granted refugee status and permanent residency. He has become an Australian citizen.
When he came to Australia, his English was - if he had any - extremely limited. He needed to learn to speak English. In June 2007, he commenced casual work as a gardener. He did that for about 11 months and in July 2008 started working casually as a cleaner. His initial work as a cleaner was for a friend who had a cleaning contract for the Woolworths supermarket at Moree. The plaintiff worked there for a number of months. The plaintiff then returned, I infer, to the Sydney metropolitan area where he did other cleaning work for the same friend, including cleaning office buildings. His work included the vacuuming of floors and the buffing of non‑carpeted floors such as wooden floors or floors covered with linoleum. In addition to merely cleaning, the plaintiff had to carry cleaning equipment between jobs, and he thought that this part of this work was heavy.
In 2010, the plaintiff noticed some problems in his low back. On 19 July 2010, the plaintiff attended upon Dr Noureddine Houfani at the Haldon Street Medical Centre in Lakemba. He complained of right lower back pain after playing a game of soccer. On examination, Dr Houfani noted tenderness and a restricted range of movements. He prescribed rest, Voltaren and a heat pack.
On 21 October 2010, the plaintiff attended at the Campsie Medical and Dental Centre and complained of low back pain, aggravated by standing for long periods over the last two weeks. The pain was said to be radiating into the plaintiff's right leg. The plaintiff was unable to tell the doctor at Campsie about any recent trauma. The doctor diagnosed a lumbar sprain and prescribed Nurofen. On Monday 25 October 2010, four days later, the plaintiff, again, attended upon Dr Houfani at the Haldon Street Medical Centre and complained of recurrent low back pain, which the doctor queried, might have been caused by heavy lifting. On examination, Dr Houfani noted tenderness and a restricted range of movements. He prescribed rest, Voltaren Gel and a heat pack. Two days later the plaintiff returned to the Campsie Medical and Dental Centre and complained of low back pain radiating, on this occasion, into his left leg. The plaintiff's forward flexion was limited to 45 degrees, which is a major restriction. The doctor prescribed the drug Brufen for the control of pain and organised for an X-ray to be performed.
The X-ray was performed on 27 October 2010 by Dr Peter Hunter. Dr Hunter's clinical notes were that the plaintiff was complaining of low back pain radiating to the left hip. Dr Hunter reported that the X-ray showed minor Scheuermann's disease with end plate deformities at multiple levels. Scheuermann's disease generally afflicts the thoracic spine and it may be that the X-ray performed by Dr Hunter extended into the lower thoracic spine: lumbar spinal X-rays often do so. Dr Hunter noted that the vertical disc heights were preserved at all levels. The doctor thought that there was minimal wedging of L3 and L4. He thought the alignment was satisfactory. He also thought the facet joints were normal.
On 29 October, two days later, the plaintiff returned to the Campsie Medical and Dental Centre and was still complaining of low back pain, on this occasion, radiating into the right leg. The medical practitioner added to the plaintiff's prescription Naprosyn and Valium, which is often used as a muscle relaxant. He provided to the plaintiff a certificate to be off work, although the doctor's notes do not tell me for how long. However, there is mention of a period in certain other documentation.
It might well be that the occurrence of pain in July 2010 was a different occurrence of pain to that which the plaintiff first complained of on 21 October 2010. There was then no complaint of low back pain after 29 October 2010 until 16 June 2011 and this may represent a third complaint of low back pain. On that occasion the plaintiff went again to Dr Houfani at the Haldon Street Medical Centre and complained of ongoing low back pain. The notes do not tell me for how long the plaintiff had had that ongoing low back pain. On examination, Dr Houfani found both tenderness and a restricted range of movements. He prescribed a further X-ray, the report of which became exhibit 7.
The radiologist on this occasion was Dr Melvin Chew of Campsie Medical Imaging. The only abnormality, which Dr Chew found was a marginal decrease in the intervertebral disc height of the L5/S1 disc. Dr Chew made the observation that if there were an ongoing concern a CT scan should be considered to exclude any possible disc impingement upon a neural structure. Of course, a disc impingement upon a neural structure would explain a complaint of radiating pain from the low back into one of the lower limbs, if the L5/S1 disc was either degenerate or in some way prolapsed, affecting the S1 nerve root.
The plaintiff returned to see Dr Houfani on 21 June 2011, when Dr Houfani discussed with the plaintiff the X-ray performed by Dr Chew. The notes indicate that the X-ray did not reveal a "sinister problem". According to Dr Houfani's notes, the plaintiff agreed to undertake a regime of rest and home exercises. Dr Houfani prescribed Voltaren emulgel.
Neither the notes of the Haldon Street Medical Centre nor the Campsie Medical and Dental Centre record any further complaint of low back pain or any relevant complaint until after the motor vehicle accident which occurred on 26 September 2015. It would appear, therefore, that the complaint in June 2011 was for a limited period of time, that is, the plaintiff had some low back pain for some closed period that may have been about a month. In other words, the medical records before me indicate that on probably three occasions in July 2010, in October 2010 and in June 2011, the plaintiff had episodes of low back pain with pain sometimes radiating into either a hip or a leg on one side or the other.

The injuries alleged

The plaintiff alleges, according to the statement of claim, that in the motor vehicle accident now in question, he injured his neck his back, his left wrist and his right knee. According to particulars filed with the statement of claim, the plaintiff injured his right knee, although that condition had by that time resolved. The plaintiff now says that he injured his back and his neck and his left wrist, but he injured his left knee. An amended statement of particulars was filed by the plaintiff's solicitor on 8 June 2017, but that again alleges an injury to the right knee. The evidence to which I shall shortly come establishes that the contemporaneous complaints that the plaintiff made about his knee were about his right knee, not his left knee.
The plaintiff's recollection of which knee he injured is therefore faulty. The plaintiff clearly has a distinct image of striking his left knee during the accident on the cab-charge machine which was on his left hand side, no doubt attached to the dividing console between the driver's compartment and the passenger's compartment in the front of the taxi. However that recollection would appear to be faulty.

Histories given by the plaintiff

Other material before me indicates that the plaintiff is an unreliable witness. For example, the plaintiff has seen a number of specialists for medico‑legal purposes since the time of the accident. He was sent by his solicitors to see Dr Mastroianni on 26 October 2016. Dr Mastroianni is a consultant occupational physician. The plaintiff told Dr Mastroianni that as a result of the accident he had pain in his neck, his back, his left knee and an abrasion to his left hand. Under the heading "PAST HISTORY", Dr Mastroianni recorded this: "There is no history of previous injuries or problems with the neck or back. There is no history of subsequent injuries." However it is clear the plaintiff had previous problems with his back. He admitted them in chief but he denied them to Dr Mastroianni. The plaintiff was sent to Dr Matthew Giblin, an orthopaedic surgeon, by his solicitors. Dr Giblin saw the plaintiff on 29 Mary 2017. According to Dr Giblin's history, the plaintiff had neck pain with radiation into both shoulders and low back pain with radiation down the back of each of his thighs. There is no other complaint of pain radiating down the back of the thighs to any other medical practitioner after this motor vehicle accident. Dr Giblin also recorded a complaint of an injury to the left wrist and the left knee. Dr Giblin's report goes onto say this: "There is no past history of this or a similar problem." In other words, the plaintiff denied to Dr Giblin any earlier complaint of low back pain.
The plaintiff was sent to see Dr Philippa Harvey‑Sutton, a consultant occupational physician, for the defendant. According to par 1.2.1, the plaintiff denied to Dr Harvey‑Sutton any aches or pains or problems with his neck before the accident of 26 September 2015. As the plaintiff told me, he told Dr Harvey‑Sutton of striking his left knee on the Cabcharge machine in his cab. He also experienced neck and lower back pain, and he also told the doctor of experiencing pain and weakness in his left wrist and hand. In par 1.2.19, the plaintiff denied to Dr Harvey‑Sutton having any medical conditions, since the accident or prior to the accident, which were relevant. In other words, there was no admission by the plaintiff to Dr Harvey‑Sutton of the earlier complaints of low back pain.

Work as a taxi driver

The plaintiff commenced working as a taxi driver in March 2012. He was working for Taxis Combined Services (TCS), working between five and six shifts per week and each shift was of 12 hours. As I was told by Hosni, and as most taxi users know, taxis are on shift from 3am to 3pm, which is a dayshift, and then on shift from 3pm to 3am, which is a night shift. On 30 December 2013, the plaintiff married. At about this time, he moved into his current residence, which he described as unit 1/4 Coronation Parade, Enfield. However, 4 Coronation Parade, Enfield is in fact a chemist shop and the plaintiff's residence is a residential unit above and behind the chemist shop to which access is gained from Byer Street which runs parallel to Coronation Parade in the relevant section of Coronation Parade.
The plaintiff told me that in about November 2014 he purchased his own taxi cab and was driving it for TCS at the time of the motor vehicle accident now in question. He generally worked five, 12 hour shifts per week, but occasionally he might work on a Saturday as well.

The accident

Exhibit B are photographs taken after the two taxi cabs collided. Of the five photographs, the last three show damage to the plaintiff's vehicle. The collision was a significant one. The plaintiff told me, and I accept, that his vehicle was "written off". The other taxi cab also sustained significant damage. The front left‑hand side of the defendant's taxi collided with the front right‑hand side of the plaintiff's taxi. The collision was sufficient to cause the airbags in the plaintiff's vehicle to be activated. However, a significant accident with significant property damage does not necessarily mean that a person involved in the accident sustained some significant personal injury. Fortunately, modern technology, the design of modern motor vehicles, and the use of, for example, seatbelts and airbags, are designed to protect motorists and those who are travelling in that motorist's car. It is clear the police were called to this collision. A police officer can be seen in one of the photographs, which forms a part of exhibit B. An ambulance was called and assistance was offered to the plaintiff but he declined such assistance. The plaintiff waited at the scene for a tow truck to arrive and went in the tow truck to the smash repair yard in Alexandria where his taxi was left. The plaintiff called his uncle, Hosni, who picked him up and drove him home. I know from exhibit 8 that the plaintiff logged off from his taxicab at 14:57:43, that is at 2.57 pm, which appears to be relatively soon after the motor vehicle accident. He told me that he arrived at Alexandria about an hour and a half later, before being taken to his home by Hosni. He may have arrived home by 5.30 pm that afternoon.

Early treatment

The plaintiff did not seek medical attention either that evening or on the following day although he said that he did. The plaintiff told me that he went "to the hospital" on the day of the accident or the day after (T30.16). Similar histories have been given to medical practitioners. That evidence is in itself unreliable. The plaintiff was adamant that he first went to the hospital who referred him to a general practitioner but the records of both the general practitioner and the hospital indicate that he went first to the general practitioner and then to the hospital. The plaintiff did not seek any treatment until he saw Dr Carolyn Loo at the Haldon Street Medical Centre on Monday 28 September 2015 at 4.07 pm. That is more than 48 hours after the motor vehicle accident.
Dr Loo took history that the plaintiff was the driver involved in a motor vehicle accident on Saturday 26 September 2015 at approximately 2.15 pm. The plaintiff complained of neck pain, low back pain, right knee pain, left wrist pain and weakness and numbness in his left-hand. Dr Loo prescribed Voltaren emulgel and Deep Heat, both of which had previously been prescribed for the plaintiff when he had low back pain earlier. Dr Loo referred the plaintiff to the hospital emergency department.
The relevant record of the Canterbury Hospital is exhibit C. The notes commence thus: "Thirty one year‑old male. Referred by GP for further assessment. Present complaint: Delayed presentation after motor vehicle accident reporting: Left wrist pain, feeling of weakness/numbness Right knee pain Neck/shoulder pain Low back pain. Allegedly involving in MVA Saturday‑2.30 pm. Restrained driver while working as a taxi driver. Reports going 60 km[h] and hit from right front side. Airbags deployed. Nil head strike. Denies alcohol intake. Reports feeling left wrist pain at the scene. Police in attendance and apparently offered central district ambulance but patient declined. Cannot remember exact mechanism of wrist pain, may think it was FOOSH type mechanism. Reports pain has improved since then but now reports feeling weak in left-hand (patient is right handed). Reports delayed onset of neck/shoulder pain, right knee pain and low back pain."
The exhibit goes on to report the plaintiff's right knee pain had resolved by that time. It also records that the plaintiff had not returned to work because his car had been "written off". The next entry in the report is this: "Has seen a lawyer who has requested a medical certificate be completed by a medical officer." That completed the history obtained at the hospital.
The findings on examination are then set out and continue on the second page of the report. The findings in the cervical spine indicate a complaint of tenderness in the paraspinal muscles but there being a good range of movements. A complaint of tenderness is not an objective sign of organic disability. In the left wrist there was no swelling but there was thought to be tenderness over the thenar eminence only. There was good functional range of movements. As far as I can ascertain, there was no objective sign of organic disability on examination of the left upper limb. On examination of the lumbar spine forward flexion was to 90 degrees and lateral rotation was 45 degrees bilaterally. There was no central midline tenderness but there was a complaint of tenderness over the paraspinal musculature. There was normal power and it appears that the reflexes were all normal. Again, there was no objective sign of organic disability. The right knee was examined. There was no swelling, no effusion, no tenderness, no popliteal masses or tenderness and no ligamentous laxity and a good range of movement of the knee with full power.
X-rays were ordered of the left wrist and the low back. Initially there was thought to be an abnormality in the hamate bone of the plaintiff's left wrist but it was ultimately concluded was a artifice caused by the radiological mechanism and merely showed a projection of certain carpal bones. The x-ray of the low back was said to show normal alignment, no obvious fracture or acute pathology.
The impression of the doctor at the emergency department was of likely musculoskeletal injuries secondary to the motor vehicle accident. The plan was to discharge the plaintiff from hospital and for him to be followed up his general practitioner in the following two days, and to advise the plaintiff to have some physiotherapy for his wrist. The plaintiff was told to return to the hospital if he had increasing pain in his neck or back or became unable to walk or pass urine or become increasingly unwell. The plaintiff did none of those things so I assume that he did not suffer increasing neck or back pain and did not suffer an inability to walk, pass urine or became increasingly unwell.
The following day he went back to the Haldon Street Medical Centre and saw Dr Samer Elhafi. Dr Elhafi completed the medical certificate which is p 11 of the plaintiff's claim for Motor Accidents Compensation, which is exhibit 4. Both the medical certificate, which is part of exhibit 4, and the notes made by Dr Elhafi recorded in exhibit 11 record injuries to the neck and shoulder and low back and left wrist and hand. There was no complaint of injury to either the right or the left knee. The clinical notes made by Dr Elhafi say this: "No acute changes. Patient education. Pain management. Further imaging and review. Notify concerns." Dr Elhafi prescribed Panadeine Forte. The certificate diagnoses low back pain/shoulder plus neck strain/left wrist strain. He has certified unfitness for work on the day that the plaintiff was seen by Dr Elhafi, 29 October 2015. That was in response to a question, "Unfit for work until?" meaning that the doctor did not think the plaintiff would be unfit after 29 October 2015.

Early visit to a lawyer

Written across the top of the medical certificate which forms part of exhibit 4 are the words, "For GP to complete". That appears to be written in the same hand and with the same pen as the rest of the document has been completed. When I say the rest of the document, I mean exhibit 4. The plaintiff himself said that he did not complete exhibit 4 but he signed it and the date of signature was 16 October 2015. Also written on the certificate is the name "Angelica", which is the first name of the solicitor with the ordinary carriage of the plaintiff's proceedings, but that has been written in a hand other than the hand that completed the document.
It is clear by that the medical certificate completed by Dr Elhafi on 29 September 2015 had been given to the plaintiff for him to give to a general practitioner to complete. The inference to be drawn from that and from the history recorded by the Canterbury Hospital practitioner, Dr Phillip Tane, is that the plaintiff had obtained the certificate to be completed by the general practitioner from his solicitor prior to going to the hospital and probably prior to going to see Dr Loo on the afternoon of 28 September 2015.
This may be of no moment, but it excites curiosity, especially when it has been put to me in submissions by Mr Khandhar, leading counsel for the plaintiff, that the plaintiff's delay in seeking treatment was "typical" for many young men who think that they will recover from their injuries with some rest and therefore do not seek medical treatment immediately, but only when the symptoms persist is treatment sought. That submission flies in the face of the fact that before seeking treatment the plaintiff should have sought the assistance of a solicitor. Solicitors do not cure pain. However, they can recover money.

Plaintiff is off work

According to the plaintiff, he remained off work until some time in February 2016. Nearly a month after seeing Dr Elhafi on Tuesday 29 September 2015, the plaintiff attended upon Dr Susan Smythe at the Campsie Medical and Dental Centre on 23 October 2015. The plaintiff complained to Dr Smythe of upper and lower back pain and of having injured his left wrist. There is no complaint about either knee. The history of the collision and the plaintiff's subsequently being seen by another medical officer is consistent with what I have described thus far. Dr Smythe noted the plaintiff went to the Canterbury Hospital and had some x‑rays of his left wrist which were apparently normal. She noted the plaintiff had been sent for physiotherapy and some kind of imaging which the plaintiff was asked to pay for even though the plaintiff was "covered by third party insurance". However, there is no earlier referral for physiotherapy or for further medical imaging. The plaintiff asked Dr Smythe to give him a certificate to take to Centrelink. Dr Smythe provided that certificate. More importantly, Dr Smythe carried out an examination of the plaintiff. She noted mild tenderness over the right trapezius muscle, a muscle at the back of the right shoulder. She also noted "spasm of lumbar paraspinal muscles bilaterally". Real muscle spasm is an objective sign of organic disability. A patient cannot imitate or fabricate muscle spasm. A patient can fabricate muscle guarding but not muscle spasm. Dr Smythe went on to find straight leg raising to be 90 degrees bilaterally with no sign of nerve root irritation. She referred the plaintiff to Mr Sunjong Choi, a physiotherapist.
Mr Choi first saw the plaintiff on 30 October 2015, a week later. Mr Choi's records are exhibit G. On 30 October 2015 Dr Choi was concerned with the plaintiff's neck. When he examined the plaintiff he noted that there was "high level of pain, severe muscular spasm". Again, cervical muscular spasm is something that cannot be fabricated by a patient. It is an objective sign of organic disability. Mr Choi organised for the plaintiff to have 12 sessions of physiotherapy over a period of five weeks. The exhibit G also contains a physiotherapy review form bearing date 4 December 2015. At that time it was noted that, the plaintiff had not only neck pain but low back pain. Mr Choi proposed a further ten sessions of physiotherapy over six weeks between 4 December 2015 and 8 January 2016 but it is completely unclear as to whether that physiotherapy was provided.
The CTP insurer of the defendant engaged a rehabilitation consultant, Mr Jennifer Jordan. According to Ms Jordan's report of 11 December 2015: "Mr Hamaidi declined to attend the assessment at Momentum Rehab's offices or for the interview to take place at his home address." One can understand that the plaintiff, being reluctant to be interviewed at his home address where his wife would have been with their young daughter. Their daughter Mariam was born on 29 June 2015 and would not have been six months old. Furthermore, finding the plaintiff's home address would have been difficult for somebody who was unaware of his residential details. The offices of Momentum Rehabilitation appear to have been in Padstow. The assessment was held in the McDonald's Café at Croydon Park. The defendant made much of this but to me it is of no moment. The only significant thing to note about that assessment is that the plaintiff told Ms Jordan that he had injured his right knee when his right knee hit the dashboard during the collision. Despite having told the hospital that his right knee had recovered the plaintiff told Ms Jordan that his right knee was not improving, another piece of inconsistent and unreliable information.
Ms Jordan discussed with the plaintiff his returning to work; her report contains this matter: "The possibility of a return to work on suitable duties and reduced hours was discussed with Mr Hamaidi. He acknowledged that whilst working for other taxi operators was an option, he opined that he needed to be able to work a minimum ten‑hour shift for this to be financially viable. Mr Hamaidi stated daily running costs for a taxi amounted to approximately $200 - $220 and to work within his current reported siting tolerance would mean he was not making any money." The plaintiff had told Ms Jordan that driving his taxi required constant sitting, on average for ten hours, and he told her that his sitting tolerance was between three and four hours.
The plaintiff did not tell Ms Jordan that immediately after the motor vehicle accident he hired a stand‑by taxi. Exhibit 7 is an invoice from Taxi Central Pty Ltd which is in the business of the hire of stand‑by taxis. There was a hire of a stand‑by taxi by the plaintiff from Monday 28 September 2015 to 12 October 2015, a period of 14 days. That 14 days covered 28 shifts and the cost of the hire of the stand‑by taxi was $1,820. It is clear from exhibit 8 that the stand‑by taxi was used by somebody using the plaintiff's log‑on number with TCS.
On Monday 28 September 2015, the stand‑by taxi was logged on with TCS for less than one minute. However, on Tuesday 29 September it was logged on for nine hours. On Wednesday 30 September 2015, it was logged on for 11 hours. On Thursday 1 October 2015, it was logged on for 14 hours. On Friday 2 October 2015, it was logged on for 11 hours. On Saturday 3 October 2015, it was logged on for 12 and a half hours. On Sunday 4 October 2015, it was logged on for eight hours. On Monday 5 October 2015, it was logged on for four hours. On Tuesday 6 October, for 11 hours. On Wednesday 7 October, for 14 hours. On Thursday 8 October, for ten hours. On Friday 9 October 2015, for 14 hours. On Saturday 10 October, for eight hours. On Sunday 11 October, for seven hours. On Monday 12 October, 13 and a half hours. On Tuesday 13 October 2015, for a total of 12 hours. On Wednesday 14 October, for two and a half hours. The records of TCS give as the number of the stand‑by taxi, 6172.
That number does not appear on exhibit 7, but the only inference to be drawn is that the stand‑by taxi was, in fact, 6172. I realise that the records of TCS concerning 6172 do not end on 12 October, but on 14 October, but it is possible that there was another invoice covering that period or that some indulgence was granted by Taxi Central Pty Ltd to the plaintiff. Despite the fact that the plaintiffs log‑on number with TCS is shown for each of those log‑ons, the plaintiff denied that he drove the taxi cab. He said that the taxi cab was driven by his friend and his friend was ultimately disclosed to be his uncle, Hosni.
A cab continued to be driven under the plaintiff's log‑on with TCS between 22 October 2015 and 13 November 2015. The first cab driven during that period was numbered T7815 and the second cab driven was numbered T5494. The provenance of each of those cabs is unexplained and although there was a regular driving of those two cabs during the period I have just referred to, the plaintiff denies that he was driving the cab or cabs and that the driving was by Hosni.
The plaintiff had, according to the evidence before me, restored to him a new taxi cab by his third party property damage insurer. The plaintiff initially thought that this cab was given to him in February 2016 but it appears now that it was given to him on 16 November 2015. That cab was driven not for TCS but for GM Cabs Taxi Network. According to that company, whose records are exhibit 9, the plaintiff's log on number was in fact the number of his driver's licence. The vehicle number, according to GM, was 492. That cab was driven for GM Cabs under the plaintiff's licence number between 16 November 2015 and 17 March 2017 and immediately after that time the cab was sold, according to both the plaintiff and Hosni. The plaintiff denies being the driver of car 492 for GM Cabs during the majority of that period.

Plaintiff's return to work

The plaintiff's case is that he only started driving his new cab with GM Cabs in February 2016, when he would drive it for one or two days per week for a seven or eight-hour shift.
Between 8 August 2016 and 26 September 2016 the plaintiff was absent from Australia visiting his family in Tunisia.
The plaintiff said that after selling his cab he recommenced working as a contract driver for TCS for two or three shifts per week but only working between six or eight hours per shift. Records of TCS show the plaintiff recommencing with TCS on 20 March 2017. The records of TCS were produced to this Court on 30 March 2017 and extend only as far 29 March 2017.
The plaintiff went back to Tunisia again on 11 July 2017 and returned to Australia on 26 September 2017. The plaintiff's evidence is that since December of last year he increased his working hours to five days per week but only for shifts of six to eight hours per day and at about that time he ceased to receive benefits from the Commonwealth of Australia through Centrelink. The inference to be drawn is that between the time of the motor vehicle accident now in question and 4 December last year the plaintiff was in receipt of some form of social security benefit. The plaintiff referred to it as being a Newstart Allowance.
The defendant's position is that the plaintiff was in fact the driver of the standby cab and other cabs when it was logged on with TCS and that the plaintiff was the driver of vehicle 492 when it was logged on with GM Cabs or when other cabs were logged on with GM Cabs using the plaintiff's driver's licence number. To corroborate his assertion, the plaintiff called evidence from Hosni.

How much did the plaintiff earn pre-accident?

However, before I go to that evidence, I should point to another salient aspect of the plaintiff's case, one that is, again, contested by the defendant. The plaintiff said that when driving his taxi cab prior to the collision now in question, he was earning between $700 per week and $850 per week "cash in hand".
The plaintiff's income tax return for the financial year ending 30 June 2014 is exhibit 1. That shows a taxable income of $7,455 which is equivalent to a weekly net income of $145. I have been told from the Bar table that no tax was payable on a taxable income of $7,545. The plaintiff's income tax return for the financial year ending 30 June 2015 is exhibit 2. That shows a taxable income of $16,537. That is an average weekly net income of $318. No income tax, I am told, was payable for a taxable income of $16,537. What the plaintiff's declared income tax returns show are completely inconsistent with the plaintiff's sworn evidence.
The plaintiff has admitted that under objection and I have afforded to him of the right he has to object to answering questions on the grounds that his answering those questions may incriminate him and when I have directed him to answer the questions I have given him a certificate under the Evidence Act 1995, so that the evidence that he has given cannot be used against him in any other court for any other purpose.
The plaintiff admits that his income tax returns are false. He blithely waived that away as being the general practice in the taxi industry. He can only, of course, speak for what he himself does. He showed not the slightest regret, remorse or pang of conscience for the deceit which he has practiced on the Australian community.
Indeed, he continues to pursue that course of deceptive conduct without any moral scruple. For example, there is before me his profit and loss statement for the financial year ending 30 June 2017. That shows gross income of $23,304 and total expenses of $19,857, showing a net taxable income of $3,447.00. Assuming that was prepared by his accountant/tax agent and forms the basis of his income tax return for the financial year ending 30 June 2017, that would indicate that he would pay no income tax during the last complete financial year. However the profit and loss statement can only be seen as fanciful. Exhibit 16 is a list of payments made by the plaintiff to GM Cabs Taxi Network. It covers the period from 27 October 2015 to 22 March 2017. It shows total payments made by the plaintiff to GM Cabs Taxi Network as being $103,865.46. During the period from 1 July 2016 to 22 March 2017 payments made by the plaintiff to GM Cabs Taxi Network were $35,996.33. In those circumstances, to suggest that his gross income was $23,304 and then his total expenses were $19,857 is not only risible but completely deceptive.
However, the law provides that the plaintiff is not bound by statements in his income tax returns if he admits that they are false and there is objective evidence to support what he says. I have been referred to the decision of the Court of Appeal in Morvatjou v Moradkhani [2013] NSWCA 157. The primary judgment in that case was given by McColl JA with whom Hoeben JA and Tobias AJA agreed. Her Honour said this: "60. In Matar v Jones [2011] NSWCA 304, Macfarlan JA (with whom Beazley and Giles JJA agreed) said of a case where the plaintiff gave evidence, and objective evidence confirmed, that his tax returns did not disclose all his income: "[16] This is to the appellant's discredit but does not preclude him from recovering damages upon what he truly earned, as distinct from what he disclosed. The following observations made by von Doussa J in Giorginis v Kastrati ... and approved by this court in AMP General Insurance Ltd v Kull ... are in point: '... Where the plaintiff gives evidence that his income tax returns do not disclose the full extent of his earnings, a court will scrutinise the plaintiff's evidence with special care. The want of honest compliance with the taxation laws is a matter that will reflect adversely on the plaintiffs (sic) credit and may lead to the rejection of his evidence as untrustworthy, at least about his earnings. In such a case the plaintiff has only himself to blame if damages are assessed in line with the pre-accident income actually disclosed to the revenue authority. However, where the fact of the receipt of other income is proved, then, in my view, the plaintiff is entitled to have that exercise of his earning capacity brought to account, although subject to reduction for the income tax which should have been paid, and subject to the question whether the plaintiff would have continued to exercise that capacity had he been required to pay tax on the additional income: seeMcIntosh v Williams [1976] 2 NSWLR 237 at 244, 252. Melino v Ken Eustice Motors (North Road) Pty Ltd (1984) 111 LSJS 296 at 308-310 is an example of a case where undisclosed income was proved and brought to account'." (Emphasis added) 61. In Giorginis v Kastrati (at 376), following the passage Macfarlan JA quoted in Matar v Jones, von Doussa J said: "A court should not, generally speaking, make a finding favourable to the plaintiff in a personal injury case that his income is otherwise than he has disclosed to the revenue authority unless the plaintiff admits the non-disclosure. A fortiori, such a finding should not be made where the plaintiff denies that he has failed to properly disclose his income. Unless the plaintiff admits the falsity of his income tax returns the court should not speculate in his favour, for example that his pre-accident earnings were probably higher than he has disclosed. Rather, the court should adopt the income figures actually disclosed and base the assessment of damages on them. Again, if this results in a low assessment, that is the consequence of the plaintiff adhering to the accuracy of his income tax returns.""
Her Honour then went on to discuss a number of authorities, they include: AMP General Insurance Limited v Kull [2005] NSWCA 442; (2005) 44 MVR 339; Brear v James Hardie & Coy Pty Limited [2000] NSWCA 352; (2000) 50 NSWLR 388; Husher v Husher [1999] HCA 47; (1999) 197 CLR 138; Cohen v Ninkovic [2000] WASCA 169, and her Honour concluded: "84. In my view the authorities do not mandate that a plaintiff must admit to tax evasion before the Court can determine on all the evidence how to quantify the plaintiff's lost earning capacity. To require such an express admission would be a triumph of form over substance. Rather, as Husher v Husher, Conley v Minehan and Cohen v Ninkovic make plain, the tax treatment of a plaintiff's income is not conclusive. The Court must determine what the plaintiff could have done in the workforce and what sum of money the plaintiff would have had at his or her disposal: Husher v Husher (at [23])."
The fact that the plaintiff may have been deceitful in dealing with the Australian Taxation Office does not mean that I cannot determine on the evidence available how to quantify the plaintiff's lost earning capacity. There is force in the submission put to me by Mr Khandhar, on behalf of the plaintiff, that the plaintiff said that he paid $375 per week in rent to house himself, his wife and child in their accommodation at Enfield, and the plaintiff was not challenged about that fact. The plaintiff said that since the birth of their daughter, his wife has not worked, and considering the fact that Mariam would now be only two and half years old, one can accept that she has not been working since the birth of their child. One would have to be earning a lot more than $375 to live where the plaintiff is living and to support his wife and child. However, that only obtained, between the birth of Mariam on 29 June 2015 and the plaintiff's accident on 26 September 2015, a period of three months. It is clear that the plaintiff has been in receipt of social security benefits from the date of the accident until as I have earlier said, 4 December 2017. Sometimes, social security benefits can include rent assistance for those who are lowly paid, and, of course, there would be questions of child endowment and the like since the birth of the plaintiff's daughter. However, before questions of economic loss arise, there must be a finding of a relevant incapacity to work. I turn, then, to the medical evidence.

Incapacity

The first relevant attendance by the plaintiff upon a medical practitioner after the commencement of 2016 was upon Dr Masum Ahmed on 9 June 2016. Dr Ahmed noted the history of the motor vehicle accident although he has an incorrect date for it. He noted the plaintiff's low back pain was improving "after many physiotherapies" by which, I assume, he means a number of sessions of physiotherapy. Again, the plaintiff wanted a certificate certifying that he is only able to work for two days a week. It is clear from the clinical notes that the certificate was generated for "Centrelink". No medication was prescribed. The only thing that was noted about medication is that medication previously supplied to the plaintiff for a chest condition had ceased.
On 26 October 2016 the plaintiff saw Dr Mastroianni as I have earlier indicated at the request of his solicitors. According to Dr Mastroianni's history, the plaintiff said that he stopped work after the motor vehicle accident and that he did not work "until a couple of months ago". That would indicate that he had started working in June or July 2016, which is inconsistent with the plaintiff's evidence that it was in February 2016. According to Dr Mastroianni's history, the plaintiff was only working one shift per week, which again is inconsistent with the plaintiff's evidence. The plaintiff told Dr Mastroianni that when he did work his one shift per week he only worked for between seven and eight hours. The plaintiff complained to Dr Mastroianni of constant pain in his neck and lower back. There was no radiation of symptoms into either of the plaintiff's upper or lower limbs, again, a matter which is inconsistently reported.
I have carefully read the doctor's findings on examination. The only "abnormalities" were a complaint of tenderness over the C5‑6‑7 spinous processes. There was no tenderness in either the thoracic or the lumbar spines. Neck and back movements were normal. The trapezii and shoulders were not tender and shoulder movements were normal. The plaintiff had normal sensation, normal reflexes and normal power in his arms. The plaintiff was able to get on and off the couch with no difficulty and was comfortable when laying on his back. Examination of the lower limbs revealed normal sensation, normal reflexes and normal power. Straight leg raising was normal. Nerve root tension signs were negative. Thus the only "abnormality" was a complaint of tenderness over C5‑6‑7 spinous processes and a complaint of tenderness is not an objective sign of organic disability. In other words, the doctor did not find anything objectively wrong with the plaintiff.
He diagnosed soft tissue injuries of the neck, back, left knee and left-hand. It is noteworthy that the doctor does not appear to have specifically examined the left or right knee and he does not appear to have specifically examined the left hand. However, he obtained a history of symptoms in the plaintiff's neck and knee so the plaintiff's left hand and knee were not causing any ongoing incapacity. The doctor diagnosed musculoligamentous strains of the neck and the back and he thought that those problems were "resolving". Despite what the plaintiff said about his ability to work the doctor thought he was capable of working "five shifts per week on reduced hours". He thought the plaintiff was fit for all domestic chores and thought that he have needed domestic assistance for the first six months after the accident when he was unable to do "heavy chores such as mopping, vacuuming and cleaning the bath".
Dr Mastroianni thought the plaintiff should recover within six months. It is clear that Dr Mastroianni accepted what the plaintiff told him. It is patently clear that he found nothing objectively wrong with the plaintiff.
On 21 December 2016 an MRI scan was made of the plaintiff's cervical spine and lumbar spine. The plaintiff was not referred to have that investigation by any doctor at the Haldon Street Medical Centre or by any doctor at the Campsie Medical & Dental Centre. The report of the investigation was made by Dr Savitha Chandrasekaran. The report bears the salutation "Dear", but nothing follows that salutation. Normally the name of the doctor who referred the patient for the investigation would follow upon that salutation. The report is addressed merely to a Post Office box at the Royal Exchange. When the plaintiff saw Dr Harvey-Sutton for the defendant, he told her this: "following the MRI scan, he was not given the scan but it was sent to his lawyers". The plaintiff told me that the MRI scans were paid for by his solicitor. The scans appear to have been generated merely for medico-legal purposes and not for treatment.
As far as I can determine, no abnormality was shown in the MRI scan of the cervical spine. An incidental note was made of an irregularity which indicated some problem in the plaintiff's trachea, his windpipe. The findings of the MRI scan of the lumbar spine are said to be these: "There is normal alignment of the lumbar vertebrae with preserved vertebral body height. There is normal marrow signal. At L5/5, there is a mild circumferential disc bulge and posterior annular disc tear. There is no spinal canal stenosis. Elsewhere within the lumbar spine there is no significant disc bulge or focal disc protrusion. The spinal canal and neural exit foramina are adequate. There is mild bilateral facet joint osteoarthritis at L3/4 and moderate bilateral facet joint osteoarthritis at L4/5. There is a pars interarticularis defect involving the left pars of the L5 vertebra. There is moderate right-sided L5/S1 facet joint arthropathy." There are three more short paragraphs concerning the lumbar spine but they do not indicate any abnormality. Dr Chandrasekaran has summed up the scan of the lumbar spine thus: "No evidence of bony or ligamentous injury within the lumbar spine. There is a circumferential disc bulge and posterior disc annular tear at L4/5. There is no significant spinal canal or foraminal stenosis seen at any level. There is multi-level facet joint [osteoarthritis], most marked at L4/5 bilaterally and on the right at L5/S1. There is also a left-sided pars interarticularis defect of L5."
When Dr Mastroianni was presented with a copy of the report of the MRI scans he said this: "The MRI findings in the lumbar spine would explain persisting back pain whereby the accident precipitated an aggravated pre existing asymptomatic lumbar spondylosis. The disc bulge as reported is unlikely to cause radicular symptoms." Accordingly, Dr Mastroianni accepts that the abnormalities shown in the plaintiff's lumbar spine are the result of pre‑existing lumbar spondylosis. Contrary to Dr Mastroianni's history, that pre‑existing condition may have been symptomatic in 2010 and 2011. The pre-existing condition might explain symptoms if the symptoms were genuine. Lumbar spondylosis itself can remain asymptomatic throughout a person's life. I could expand on that further, and I would if I were sitting in the Compensation Jurisdiction of this Court but I am not.
After that MRI scan was performed, the plaintiff returned to the Haldon Street Medical Centre and discussed the MRI scan with Dr Aslan Hameed on 23 December 2016. Dr Hameed thought the plaintiff should be managed with painkilling medication and physiotherapy. On the evidence before me, the plaintiff has not attended upon a general practitioner subsequently for the effect of any injury alleged to have resulted from the motor vehicle accident. However, he has attended a general practitioner for other problems.
On 29 May 2017, the plaintiff saw Dr Matthew Giblin, an orthopaedic surgeon, for his solicitors, as previously mentioned. The plaintiff complained to Dr Giblin of neck pain radiating into both shoulders and low back pain radiating down the back of both his thighs. That complaint is inconsistent with his complaint to Dr Mastroianni. The plaintiff told Dr Giblin that he was only working two days per week. The plaintiff told the doctor that his major problem was in his low back. He said that when he drove his car he got neck pain if he was required to turn his head quickly in order to make the usual observations of a motor vehicle driver. The plaintiff went on to tell the doctor that he no longer mowed the lawn and did not do any of the heavier handyman duties about the house and that he was unable to do any vacuuming and mopping. Dr Giblin's findings on examination are minimal. He records this: "On examination of his cervical spine, he is able to put his chin on his chest and he could extend to neutral, left lateral rotation was to 65 degrees, right lateral rotation was to 65 degrees. There were no significant peripheral neurological signs. He had a full range of movement of the shoulders. On examination of his lumbar spine, he could forward flex to mid calf, he had pain on arising, he had pain particularly on left lateral extension and rotation. There were no significant peripheral neurological signs. Straight leg raising was 90 degrees bilaterally." As I understand it, the doctor's findings on examination of the plaintiff's neck reveal no abnormality. The only thing amiss in the examination of the plaintiff's low back was a complaint of pain when extending after flexion and of pain on movements to the left, but a complaint of pain is not an objective sign of organic disability. Dr Giblin had available to him the MRI scans. He expressed this opinion: "It is my opinion this gentleman's injuries are consistent with the accident described, he has a soft tissue injury to the cervical and lumbar spine." The doctor does not tell me whether they are musculoligamentous injuries or whether the soft tissues could include a lumbar disc. Dr Giblin thought the plaintiff was unfit for work that involved repetitive bending, heavy lifting, or prolonged sitting or standing. Clearly, the plaintiff's work did require prolonged sitting for shifts of 12 hours per day.
The plaintiff was seen by Dr Harvey‑Sutton on 6 July 2017. By that time, the plaintiff was working two or three shifts a week for six to eight hours per shift, according to the plaintiff's evidence. The plaintiff told Dr Harvey‑Sutton that he was working two days a week, usually for about 16 to 20 hours per week on shifts of eight to ten hours. That is roughly consistent with the plaintiff's evidence. I have again carefully read Dr Harvey‑Sutton's findings on clinical examination. I can ascertain no objective sign of any organic disability. On page 9 of her report, Dr Harvey-Sutton said that there was no indication that the plaintiff had any disability. She thought his complaints would settle in the fullness of time. However, that means that she accepted that his complaints were genuine.
Dr Giblin was sent a copy of Dr Harvey-Sutton's report and commented on it in a subsidiary report of 19 October 2017. In that report he said: "In relation to her clinical findings, particularly with regard to his lumbar spine; we are very similar in our findings, except that I found an extension and rotation, it reproduced muscle spasm and pain. I notice that Dr Harvey-Sutton, however, hadn't examined that particular range of movement." Firstly, it should be noted that Dr Giblin did not, when he examined the plaintiff on 29 May 2017, record any finding of spasm; which would be important to record for reasons I have sought to make clear. Secondly, it should be noted that Dr Harvey-Sutton did record movements of the lumbar spine in flexion, extension, lateral bending and rotation to both left and right: par 3.7. I can not accept as reliable what Dr Giblin recorded in his report of 19 October 2017, which I had just quoted.
Shortly stated, there appear to have been no objective signs recorded other than radiological appearances of lumbar spondylosis since the end of 2015. In other words, I am really completely in the hands of the plaintiff for the existence of incapacity after the commencement of 2016, completely in the hands of a man whose conduct towards the Australian community has been deceptive.

Cardiac symptoms

On 24 February 2016, the plaintiff attended the Canterbury Hospital and was seen by Dr Eileen Mary Rogan. The relevant medical record is exhibit 10. Unfortunately, exhibit 10 does not give me the time at which the plaintiff attended the hospital. The record is an emergency department discharge summary referral. It commences with a letter addressed to a "colleague" of the Emergency Registrar. The substance of the document, commencing at the foot of p 1, is this: "31 year old taxi driver who presents with chest pain. Has happened today for the second time in two weeks. Last week, woke up from sleep at approximately 5am. Had been dreaming about soccer. Left‑sided, sharp pain that didn't radiate anywhere. Felt more comfortable sitting up. Took two Nurofen. Self-resolved several hours later. A couple of days later was feeling stressed while working. Developed burning sensation in epigastrium, with sensation of something rising up his chest. Today was driving. Had onset of chest pain he had when he woke up at 5am last week. Still present, approximately two hours later. Worse when breathing - even normal breathing - and also when he swallows[.] tried to drink some water and found it painful. Denies cough, haemoptysis. Nil surgery, immobilisation, travel Nil previous DVT/PE Nil significant family history of early onset heart disease. Complains of feeling tired past 12 months. States his doctor has told him he's low on iron. Avoids GP as hates blood tests. Otherwise well. No medications or allergies. Social history: right‑handed. Lives with wife and seven month old child. Works six days a week. Smoker, 25 per day. Nil alcohol. Nil other recreational substances. Plays soccer every Sunday." The underlinings are my emphases. If one accepts that that history be accurate, the plaintiff was then working six days a week. On 24 February 2016, he was driving, which may have been in the course of his work as a cab driver, and earlier than that day, he had been feeling stressed "while working", which can only mean as a cab driver. The plaintiff admitted that the history was accurate except for the statement that he was working six days a week, and except for the history that he played soccer every Sunday. The plaintiff said that he had not played any soccer since the motor vehicle accident now in question.
There follow on p 2 of the exhibit Dr Rogan's findings on examination, her impression and, on p 3 of the document, her plan for the plaintiff, and then follow the test results, essentially blood tests for blood collected at 12.25pm, which indicates that the plaintiff attended at the hospital prior to that time. It was noted there was still pending results for iron studies, a test for vitamin B12 and folate, and a chest x‑ray report. Follow up arrangements were with the plaintiff's general practitioner. The list of blood tests taken indicates that there was a large number of tests conducted. The plaintiff was attending a hospital with a complaint of chest pain. It was obviously considered by both him and the hospital doctor that he may have a cardiac condition.
A history in such circumstances is extremely important. For example, if the plaintiff was working six days a week, that might be important because it would indicate that he was perhaps spending too much time at work, and that could be relevant stressor. Equally, it was irrelevant that five months previously he had stopped working six days per work and had not been working up until this time. To record that history would be irrelevant. As to whether the plaintiff was still playing soccer "every Sunday", I am completely in the plaintiff's hands. Furthermore, the plaintiff may have merely been attending soccer matches on Sunday to watch the team, in which he generally played, play.
Mr Khandhar for the plaintiff has referred me, as I am often referred, to dicta in decisions of the Court of Appeal referable to the care which one must take in relying on written records of both medical practitioners and hospitals when they might conflict with the evidence of a person such as the plaintiff. However, in the current case I have sought to point out, repeatedly, that the plaintiff is an unreliable witness.
There is nothing before me to suggest that Dr Eileen Mary Rogan is an unreliable practitioner who may have recorded an incorrect history of a patient complaining of chest pain. The letter at the commencement of the discharge referral was prepared for signature by the emergency registrar, Dr Paris Ramrakha. One would presume that he would have checked the hospital records before sending the letter to the general practitioner.
The letter itself contains some other information. There was no chest wall tenderness, which might suggest a musculoskeletal cause of the plaintiff's complaints. The electrocardiograms and a chest x‑ray were also normal, as were the examination of the plaintiff and his vital signs. Because of certain complaints the plaintiff made about a burning sensation in his epigastrium, Dr Ramrakha, in the letter, suggested to the GP that he carry out certain investigations of the plaintiff's gut. Dr Ramrakha ended his letter pointing out that he advised the plaintiff to "stop smoking". There is nothing in exhibit 10 to suggest any inaccuracy or any shortcut treatment of the plaintiff when he attended the Canterbury Hospital complaining of chest pain.
The plaintiff went to see Dr Samer Elhafi again at the Haldon Street Medical Centre on 1 March 2016, a week later. That attendance was about the plaintiff having been to the Canterbury Hospital complaining of chest pain. The plaintiff told Dr Elhafi that he was feeling better by that time. Dr Elhafi requested some further pathology tests. There was no complaint made of any musculoligamentous problem.
There were some further attendances in 2016 but again, on those occasions there was no complaint of any musculoskeletal issue. The plaintiff attended on 28 September 2016 and was seen by Dr Aslan Hameed and the diagnosis was gastroenteritis. He attended on 14 November 2016 and saw Dr Hameed and the diagnosis at the time appears to have been a viral illness with symptoms in the upper respiratory tract. In 2017, there were attendances at the Haldon Street Medical Centre on 3 July 2017 where the diagnosis made was palpitations, and on 3 October 2017 when the plaintiff was complaining of chest discomfort and the reason for contacting the practice was in order to try to stop smoking. There is nothing before me which suggests that the history recorded at the Canterbury Hospital by Dr Rogan and Dr Ramrakha was in any way inaccurate.

Consideration

I accept that as at 24 February 2016, the plaintiff was working again for six days per week as a taxi driver. There is no orthopaedic reason, on an objective basis, to suggest that he could not. The plaintiff's case of course is that I would accept the evidence of Hosni insofar as it may support the plaintiff in the plaintiff's statements of his reduced ability to work as a taxi driver.
The evidence of Hosni was, in many respects, vague. On the day of giving evidence, he was one year short of his 44th birthday. He had been working as a taxi driver since 2003. He told me in-chief that "a couple of days" after the plaintiff's accident, he started driving a cab at the plaintiff's request. He did not initially know which company he was driving that cab for but he thought he could remember GM Cabs. He said that when he was driving for GM Cabs, he used his nephew's logon number, sometimes referred to as his PIN. Hosni told me that he had to drive for his nephew because his nephew needed to make a payment every day for his cab. There was a payment needed to be made for hiring the standby taxi but that could be avoided by not hiring the standby taxi. However, I do not know whether the plaintiff was still required to make payment to TCS for debts that he would have incurred had his ordinary taxi not being written off. There is a conundrum in the evidence, which has not been adequately explained. Hosni told me in‑chief that he was driving "at least five days a week" for his nephew, and that continued for "about a year and a bit" although he could not remember exactly. He went on to say that, for about a year, the plaintiff was not driving at all. But then he "start to help me every now and then," which I am asked to accept means that when the plaintiff could do the driving himself and he did not need the assistance of Hosni.
In cross‑examination Hosni said that in the past he had owned his own taxicab but then he sold it to become a driver. Counsel for the defendant, Ms Allan, then sought to ascertain from Hosni when he may have sold his own cab but that appeared to me to be quite irrelevant. That the question was rejected. When asked how many owners of cabs the plaintiff had driven for in the 12 months preceding September 2015 Hosni indicated that he may have driven for five different owners, all for the same cab base. He told me that he drove for one of two bases, the Legion base or the RSL base. He said that all told he had been working for RSL and Legion for 15 years. He agreed that with Legion he had his own log on number and with RSL he had his own log on number, and that he obtained those numbers from the base.
He, in cross‑examination, confirmed that when he logged on with GM Cabs he used his nephews log on number but when pressed as to what it was he said this: "I forgot, because I write it down on small paper. I didn't drive with him long time." It was unclear to me, when he gave that answer, whether he meant that he had not driven for his nephew for a long a time or that he did not drive for his nephew for a long time. The answer is ambiguous. However, shortly thereafter, Ms Allan asked this question and this evidence was then given: "Q. Why didn't you go to the GM base and get your own PIN number? A. INTERPRETER: Cause I was doing it for short time, like, I - and he was telling me, like, "Do this week for me and hopefully next week I'll go back". HIS HONOUR "Q. So you only drove for GM for a short time, did you? A. WITNESS: Exactly, sir. Q. Could you tell me how long, roughly? A. WITNESS: I can't remember exactly but around one year." The transcription service has accurately made the transcript. Sometimes Hosni would answer questions in Arabic and the interpreter was required, sometimes he would answer the questions in English and when he did so the transcript records the answer he gave directly in English.
Quite frankly, Hosni's English was better than the plaintiff's and I thought Hosni had a very good grasp of the English language. However, a "short time", when the plaintiff might be telling Hosni to do a weeks work for him and he might recover the following week, is hardly appropriate to cover a period of "around one year". The work at GM Cabs was carried on over a period of 16 months.
Later Ms Allan asked Hosni some questions about the period during which the plaintiff was in Tunisia in 2016. Again, it is to be noted that that period was from 8 June 2016 to 26 September 2016. Hosni was asked whether he worked whilst the plaintiff was overseas. He said that he did not. However, he then said that he was, in fact, working but the plaintiff "rented the car...to someone [else]." He then said that during that period, he was driving "my own car". He then admitted that he now had his own taxi cab.
The important point to note is that after 8 August 2016 at 2.27pm, no‑one drove a cab using the plaintiff's log‑on, his driver's licence number, until 30 September 2016, commencing at nearly 5pm. The plaintiff went overseas. One would have thought that had his uncle been driving his car up until that time, for most of the time, the plaintiff would have left his car with his uncle. A taxi cab is a valuable asset and one would entrust a valuable asset to a close relative when one was going overseas rather than to a stranger. If the plaintiff did give his car to another driver whilst he was overseas, one wonders why the driver did not use the plaintiff's log‑on number as did Hosni, both before and after. That obviously did not occur.
The evidence also suffers from this vice. At p 169 of the transcript, Hosni admitted that since March 2016, he had his own cab, numbered 4282, and one would have thought that if he had his own cab and was driving it in August and September 2016, he would have been driving it since March 2016. Hosni then went on to say that his nephew lent his car "to somebody else", but whoever that might be, neither Hosni nor the plaintiff told me, nor was that person called. Furthermore, at p 169, Hosni told me that he never drove his cab, 4282, for GM Cabs, but then admitted that he may have lent it to his nephew, "One day or two days. Not many times." But, in fact, cab 4282 was driven for GM Cabs by somebody using the plaintiff's log‑on number, the plaintiff's driver's licence, on 48 occasions.
There are obvious internal inconsistencies between the evidence of the plaintiff and the evidence of Hosni, and I found neither of them to be a convincing or forthright witness. Another way of testing the evidence is to look at the driving which the plaintiff did for TCS when he returned to driving for that company on 20 March 2017. I, again, point out that the plaintiff told me that when he recommenced with TCS, he was working two or three shifts per week for six to eight hours a shift. There is no suggestion that at this time, the plaintiff was having anybody else driving a cab that may have been bailed to him.
The records of TCS, exhibit 8, show that cab T7775 was logged on to the plaintiff for one minute on 20 March 2017. However, on 21 March 2017, it was logged on for 13 and a half hours. On 22 March 2017, it was logged on for nearly 15 hours. On 23 March 2017, it was logged on for nearly 13 hours. On 24 March 2017, it was logged on for nearly 12 hours. In that five day period, the plaintiff was logged on for 63 hours, equivalent to five days at 12 hours per day. Unfortunately, the records of TCS cease as I have earlier mentioned on 29 March 2017. On 27 March the plaintiff was logged on for eight and a half hours. On 28 March he was logged on for more than 13 hours. On 29 March he was logged on for less than three hours. However, the first five days when the plaintiff recommenced as a driver for TCS he averaged, at least, 12 hours a day for five consecutive days, which is quite inconsistent with the plaintiff's evidence.

Conclusions

I accept that in the period initially following the motor vehicle accident the plaintiff had some troubles in his neck and his low back. I make that finding based upon the objective findings made by Dr Susan Smythe on 23 October 2015 as far as the low back is concerned, and on the basis of the findings of the physiotherapist, Mr Choi, on 30 October 2015 as far as the plaintiff's neck is concerned. However, I also accept the accuracy the history recorded at the Canterbury Hospital on 24 February 2016. I am prepared to accept that, until approximately two weeks before 23 February 2016, the plaintiff may have been incapacitated for his work as a taxicab driver. Between the time of the accident, 26 September 2015 and 10 February 2016 is, on my mathematical calculations, which are always to be queried, 138 days. I round that out at 140 days, which is a period of 20 weeks.
If the plaintiff was earning $750 per week cash in hand, as he said he was, prior to the accident now in question, he would have received, after tax, $660 per week. Such an income is consistent, in my view, with paying the plaintiff's rent and supporting himself and his wife and his very young child at that time. 20 times $660 is $13,200.
The plaintiff is entitled to the difference between his out-of-pocket expenses of $3,621.80 and the defendant's defence, under section 83 of MACA, $3,469.85, being $151.95. If I add that to $13,200 I reach a sum of $13,351.95.
It is common ground that the plaintiff has not established an entitlement to damages for non‑economic loss. I am not persuaded on the balance of probabilities the plaintiff has sustained any economic loss after approximately 10 February 2016 or that he has any ongoing physical disability, which would entitle him to any future economic loss.
I am also not persuaded the plaintiff is entitled to any further out-of-pocket expenses because I am not persuaded that there was any ongoing need for medical treatment after 24 February 2016 other than consulting with his general practitioner about the MRI scan of his neck and low back.
The plaintiff claims for the future cost of a paid yard worker. In the plaintiff's schedule of damages, MFI 2, there was no claim made for past or future gratuitous care of either the plaintiff himself or his home. That claim must fail because, owing to my findings as to the plaintiff's incapacity, there could be no reason why the plaintiff could not do his housework or mow his lawn, if that is the appropriate terminology, after about 10 February 2016.
The claim in respect of paid yard care is, in fact, another risible or laughable subject. The plaintiff's residence is shown in exhibit 5, that is, the rear of the chemist shop, which fronts Coronation Parade, Enfield. It looks to me like the rear of any unrenovated terrace house that one might find in Balmain or another inner city suburb. There is an area paved with bricks with a small garden on the right-hand side as one looks at the photograph. In the front of the photograph is shown the commencement of a driveway where there is a cemented track for each tyre of a four‑tyred vehicle. On the left-hand side is a strip of grass, which might be no more than a metre wide. In the centre is another strip of grass which might be no more than 18 inches or 2 foot wide, say, 60 centimetres, and on the right‑hand side, a small strip of grass that would be no more than probably 15 centimetres wide. That must extend back for the length of the yard, which was estimated to be about 9 metres. This is hardly a lawn. These are mere strips of grass between strips of concrete and they could be mowed within a five‑minute period with the use of a motor mower, although the plaintiff himself admitted that he never had a motor mower and referred to hiring somebody who used a "long stick" to mow the grassed areas in question. I thought the plaintiff may have been referring to a scythe, but being more modern than I am, Mr Khandhar thought it might refer to a whipper snipper or hedge trimmer, something of that nature, which might be more accurate than what passed through my mind. But even so, using a whipper snipper would only take a few minutes to mow such an extremely small area of grass. However, there is nothing to suggest that the plaintiff was incapacitated for doing any such work if he wanted to do it by himself for any period of more than four and a half months. A claim for any form of paid care must therefore fail.
There was an attempt to discredit the plaintiff because of his use of an address which was not his actual residential address, in, for example, exhibit 4, the claim for Motor Accident Compensation. The plaintiff gave as his residential and postal address a unit in Yangoora Road, Lakemba. That in fact had been an address at which Hosni lived, but when Hosni gave evidence he gave an address in Punchbowl and said that he had been living at Punchbowl for "around two years" at the time of his giving evidence. Accordingly, he must have moved to Punchbowl in early 2016. However, his address prior to that time was the address at Yangoora Road, Lakemba. How long he had lived at that address I not know. However I accept that it was an appropriate thing for the plaintiff to give as his address his uncle's address, because delivering mail to where the plaintiff actually lived at Enmore would have been very difficult, a fact to which I have already adverted. The only vice in the preparation of exhibit 4 was to state that the address in Yangoora Road, Lakemba, was not only the postal address but the residential address, but that may be because the distinction was not made clear to the plaintiff by whoever it was who completed the form. The plaintiff himself, according to Hosni, had never lived at Yangoora Road, Lakemba, but I accept that it would still have been a convenient address for the plaintiff to use for the delivery of his mail.
The plaintiff made it clear that he was still using the Yangoora Road, Lakemba, address at the current time, but he did not give evidence after Hosni had finished his evidence, so that the plaintiff could not be challenged as to why he was still using the Lakemba address when his uncle no longer lived there. No adverse inference can be drawn against the plaintiff in that regard because there might be a fairly good explanation for it. Another member of Mr Hamaidi's family or a close friend may have taken over the flat at Yangoora Road, Lakemba, after it was vacated by Hosni, and it may still have been a convenient postal address as far as the plaintiff was concerned. I therefore draw no adverse inference against the plaintiff in that regard.
Any further reasons for judgment required? TZATZAGOS: No, your Honour. ALLAN: No, your Honour.
HIS HONOUR: I have inquired whether any further reasons for judgment are required. I am told that none is so required. For those reasons, I give verdict and judgment for the plaintiff against the defendant for $13,351.95. I order the defendant to pay the plaintiff's costs on the ordinary basis until 3 November 2017 and I order the plaintiff to pay the defendant's costs on an indemnity basis from 4 November 2017.

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: 09 February 2018

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