It is now necessary to turn to the question of damages in the light of the breach of duty of care which I have found established in relation to the plaintiffs. My medical findings are important to this analysis. I have found that each plaintiff suffered injury in the accident and thus the tort of negligence is established.
As stated above, neither plaintiff was assessed as having a greater than 10% whole person impairment as a result of the accident. Accordingly, no damages are to be awarded for non-economic loss.
The defendant submitted that either no damages should be awarded to the plaintiffs or that their damages should be limited to the treatment expenses which have already been paid by the defendant. No evidence was before me as to those treatment expenses. The plaintiffs submit that they are entitled to substantial damages which I set out in the following table:
Head of damage Mrs Dib Manessa
Past out-of-pocket expenses
• Section 83 payments $2,372.70 To be determined
• Payments made by Medicare $7,452.40 $302.40
Future out-of-pocket expenses
• Future consultations with general practitioner Dr Hamad once per month for life $9,933.34
• GP consultations with Dr Hamad quarterly to age 18 $1,475.77
• Specialist consultations with Dr Darwish quarterly for the next three years $2,799.99
• Ongoing medication
• Medication buffer - occasional Panadol and deep heat $750.00
• The four medications she is currently taking $6,300.33
• 12 physiotherapist treatments per year for two years $1,949.77
• Gym programme $2,700.00
• Ongoing gym membership for two years $2,400.00
• Total gym membership
Total $33,623.43
Past domestic assistance
• At $25 per hour for seven hours per week from the date of accident to the date of judgment $230,168.40 Nil
• future domestic assistance at $33 per hour for seven hours for life
Future economic loss buffer $50,000.00
[2]
Past out of pocket expenses
The accident was a minor one. I have also preferred the opinions of Dr Lowy and Dr Rikard-Bell. It was reasonable for the plaintiffs to attend their general practitioner and to be referred for radiological investigation. Limited physiotherapy was in my view justified in the case of Mrs Dib until the end of 2014. However, I have found that the plaintiffs' medical conditions had largely settled no later than the end of 2014. Complaints by Mrs Dib of serous pain, restrictions or disabilities after that time are neither reasonable nor justified nor established on the evidence. Mrs Dib is, in my view, for the reasons I have set out earlier, an unreliable witness and her histories as provided to medical practitioners must be treated with real caution and not generally accepted. The taking of occasional non-prescription analgesia should be accepted as warranted if symptoms arose from January 2015. I specifically reject that the taking of prescription medicine by Mrs Dib from January 2015 was reasonable or necessary for any injury arising from the August 2014 accident.
I think that medical appointments checking on Manessa were reasonable until mid-2015 having regard to the fact she is a child and had complained of some pain.
My findings should allow an agreed calculation of any loss taking into account the s 83 payments.
[3]
Future out-of-pocket expenses
I have found above, that any pain and restrictions arising from the accident had largely resolved for Mrs Dib by the end of 2014. Although the position is a little less clear for Manessa Hawchar, I find that any residual complaints after early 2015 were minor although medical checks were reasonable until mid 2015.
I have found that both the plaintiff, Mrs Dib, and her sister Ms Amne Dib were unreliable witnesses who should not be accepted in relation to the claims concerning domestic assistance.
In my view, having regard to the evidence and my findings, I accept the medical evidence of the defendant and reject the plaintiffs' medical evidence to the extent that it suggests that there was any continuing substantial medical restrictions or pain in either plaintiff from January 2015.
The various medical opinions on behalf of the plaintiff, Mrs Dib, and her complaints to her general practitioner, rely on the accuracy of the complaints of the plaintiff Mrs Dib. I find that she is an unreliable witness and accordingly little weight can be given to her accounts of her continuing restrictions and pain from January 2015. I accept that there may be occasional symptoms of pain continuing to arise from the accident but these are minor and do not in my view impact upon the activities of either the plaintiff, Mrs Dib, or the child Manessa. Doing the best I can on the evidence, I would allow $400 for future out of pocket expenses for non-prescription analgesia for each plaintiff.
[4]
Past loss of earning capacity
No claim is made for either plaintiff in relation to past loss of earning capacity.
[5]
Future loss of earning capacity
No claim for future loss of earning capacity is made in relation to Mrs Dib. A buffer is sought in relation to future loss of earning capacity concerning the child Manessa.
Section 126 of MACA provides as follows:
"126 Future economic loss - claimant's prospects and adjustments
(cf s 70A MAA)
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
Dr Davis in his reports expressed the opinion that in the future long periods of static loading of Manessa's spine may result in some discomfort, particularly with computer work. The possibility of further restrictions is relied upon by Manessa in seeking a buffer of $50,000. In his first report Dr Davis indicated that the discomfort during static loading may be some disadvantage in Manessa's choice on the open labour market in the future.
In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]-[71]:
"[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them". In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said:
"Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly."
The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ.
[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act".
In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history". They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …". The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender material[s]": Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 55 ALJR 371at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:
"when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award.""
In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]-[81]:
"[79] I turn then to the issue of future economic loss. The primary judge's finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent's future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded.
[80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412).
[81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v R [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future."
The Court of Appeal in the Sretenovic case thus states that the award of a buffer or cushion to a plaintiff is reserved only in situations where the precise loss of the plaintiff is difficult to determine and there is a "smallish risk" that the plaintiff's employment prospects will come to an end or have been reduced by the tort.
In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]-[9]:
"[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows:
84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]-[5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v R [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present.
[7] The award of a buffer for future economic loss in circumstances "where earning capacity has unquestionably been reduced but its extent is difficult to assess" reflects the proposition that, to paraphrase, the want of precise evidence "does not necessarily result in non-recovery of damages": New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic"; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing).
[8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), "s 126 is presumably intended to promote intellectual rigour", the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer.
[9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts."
Basten JA stated the following at paragraphs [27]-[30]:
"[27] In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]:
The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.
To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded.
[28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1).
[29] Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for "vicissitudes" which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]:
Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2).
[30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]-[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; [2008] Aust Torts Rep 81-949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O'Neill [2011] NSWCA 361 at [67]-[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA)."
Macfarlan JA stated as follows at paragraph [66]-[67]:
[66] I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss.
[67] It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for "the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future" (at [2]).
Accordingly, I have to assess whether there is appropriate evidence to establish a "possibility" or smallish risk, that the plaintiff Manessa may suffer some economic loss in the future as a result of the matters referred to by Dr Davis in his reports.
I am not satisfied that there is such a risk established.
It is unclear what paid work Manessa will undertake in the future, if any, and in particular, whilst she may need to use a computer for her work, there is no evidence other than conjecture that it will involve long periods of static loading in her spine. I did not find the comment by Dr Davis in his two reports as being persuasive that there was a risk which was other than conjectural in relation to this matter and in my view the matter raised does not fall within the authorities which I have set out above. Dr Davis relied on there being an accurate history from Mrs Dib. I am not satisfied that I can conclude within the authorities that having regard to my medical findings concerning Manessa, there is a smallish risk that the realistic choices available to Manessa in the future will be relevantly limited. I accordingly reject the claim for a buffer.
[6]
Domestic assistance
Mrs Dib makes a claim for past domestic assistance and for future domestic assistance.
The evidence of Mrs Dib is that domestic assistance has been provided to her on an extensive basis from the day immediately after the accident to date. Her evidence is that her condition has worsened and this has required further assistance. The assistance consists of assistance in relation to all her domestic duties including cooking and cleaning and childminding services. She states that the care has been provided by her sister, her mother and to some extent by her husband, the defendant, and by her mother-in-law or her sister Amne Dib's children.
I have found that the plaintiff is an unsatisfactory and unreliable witness. Her evidence that she has been severely disabled as a result of the accident and has been unable, for a lengthy period, to do household work other than light duties, is inconsistent with her signed statement dated 23 November 2015 which became Exhibit 2. I have found that the statements were made at an earlier point in time when her recollection was more likely to be correct than her oral evidence before me. The statement which is Exhibit 2 suggests that Mrs Dib was providing substantial domestic assistance to her husband in the period from August 2014, being the date of the accident, to November 2015. I prefer that evidence. She was more likely to be truthful in relation to her separated husband's claim where she had less of an interest than her own claim.
I am satisfied from the entirety of the evidence of Ms Amne Deb, particularly her cross-examination, that it is highly unlikely that she provided any domestic assistance of any substance to the plaintiff from 26 August 2014 because of her existing physical problems and restrictions arising from the June 2012 accident.
I did not receive any evidence from the defendant or the mother of Mrs Dib as to any assistance allegedly provided by them to Mrs Dib. I am not willing to accept the evidence of the plaintiff Mrs Dib or her sister Amne Dib that such assistance was provided as a result of the accident.
I also found Ms Amne Dib to be an unreliable witness for the reasons which I have set out above.
Having regard to all of these matters I am not satisfied as to the following:
1. That there was any need for domestic assistance to be provided to the plaintiff, Mrs Dib, from soon after the accident and certainly from the end of 2014;
2. That any significant domestic assistance was provided by Ms Amne Dib, Mrs Dib's mother, Amne Dib's children or the defendant to the plaintiff, Mrs Dib, at any stage after the August 2014 accident; and
3. There was or is any need for any additional domestic assistance to be provided to the plaintiff infant, Manessa Hawchar, in addition to that which she was provided by her mother prior to the accident.
Section 141B(1) to (3) of MACA provides as follows:
"141B Maximum amount of damages for provision of certain attendant care services (cf s 72 MAA)
(1) Compensation, included in an award of damages, for the value of attendant care services:
(a) which have been or are to be provided by another person to the person in whose favour the award is made, and
(b) for which the person in whose favour the award is made has not paid and is not liable to pay,
must not exceed the amount determined in accordance with this section.
(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.
(3) Further, no compensation is to be awarded unless the services are provided (or to be provided):
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months."
In my view, and I find, no attendant care services within the Act were provided to either of the plaintiffs satisfying s 141B(3). In my view, either no services were provided to either plaintiff from the end of 2014, or that if they were provided, they were not reasonably provided, or that they were provided for at least six hours per week. Accordingly, the requirements in s 141B(3) are not satisfied as to either plaintiff.
I also find that there is no future need for domestic assistance as the plaintiffs' conditions have largely resolved apart from possible occasional slight and temporary aches or pain.
Therefore, I would allow no sum to Mrs Dib for domestic assistance within the Act.
[7]
Disposition
The defendant has a defence for any treatment expenses already paid in relation to the plaintiffs. This therefore needs to be taken into account.
I will hear from the parties as to the payment of Manessa Hawchar's damages.
I accordingly make the following orders in the matter relating to Mrs Dib:
1. The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days;
2. The question of costs is reserved;
3. Liberty to apply in relation to the issue of the costs of the proceedings;
4. Exhibits to be retained until further order.
I make the following orders in the proceedings concerning Manessa Hawchar:
1. The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days;
2. The question of costs is reserved;
3. Liberty to apply in relation to the issue of the costs of the proceedings;
4. Exhibits to be retained until further order.
[8]
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: 14 August 2018
I will now consider issues relating to the credit and reliability of the plaintiff, Mrs Dib.
The credit and reliability of Mrs Dib is of central importance in these proceedings. Senior counsel for the plaintiffs submitted that I should find that Mrs Dib was an honest witness. Counsel for the defendant submitted that I should find that Mrs Dib was not a witness of truth, particularly in relation to the accident, the extent of her injuries and the domestic assistance provided to her by her family members after the accident.
Mrs Dib gave her oral evidence over six days. Her evidence in chief commenced on the second day of the trial and was concluded on the third day of the trial. The cross-examination occurred over the third to sixth days of the trial. She later gave further oral evidence on the twelfth day of the trial. Having regard to the lengthy period during which Mrs Dib gave her oral evidence, I was able to observe her carefully and form an assessment as to her reliability and credit.
The following matters should be taken into account in assessing the reliability and credit of Mrs Dib:
1. English is not her first language. Having said this, Mrs Dib seemed to have a reasonable command and understanding of English and impressed me as an intelligent albeit reserved woman;
2. A significant part of Mrs Dib's evidence was given through a Lebanese interpreter. However, often Mrs Dib answered in English before questions were translated. As stated, she appeared to me to have a reasonable understanding of spoken English;
3. The events of the alleged accident occurred four years ago. Accordingly, it is expected that Mrs Dib would not have a firm and detailed recollection of all aspects relating to the accident, particularly as she was a passenger in the motor vehicle at the time as opposed to its driver;
4. Mrs Dib gave evidence, partly confirmed by medical records and medical reports before me, that she took a large number of medicines which had affected her recollection and made her tired and on occasions, dizzy: see for example T267.14. Although the effects of the drugs were not volunteered by Mrs Dib until the penultimate day of her evidence (see T267-8), it is accepted that drugs, if taken, may have had some effect on the detail of her recollections and answers. It is a matter to be taken into account in relation to her answers and her reliability;
5. The length of the cross-examination was likely to have been very tiring for Mrs Dib, irrespective of the extent of her injuries as claimed;
6. Caution should be exercised in placing too much weight on medical notes or on the histories set out in medical reports for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. See also Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144] and Afoa v McBride [2017] NSWCA 323 at [70].
I also take into account the submissions made by counsel for the parties in relation to the various matters relevant to Mrs Dib's credibility and reliability.
Taking into account her presentation, her evidence, the evidence given by other witnesses, the medical notes and records and the submissions made by the parties, I conclude that I have serious reservations in relation to Mrs Dib's credit and the weight to be given to her evidence including in relation to her memory, her reliability and, in some important respects, the accuracy of her evidence. I take into account the following matters which in my view are relevant to Mrs Dib's credit and reliability:
1. Mrs Dib frequently answered questions put to her by counsel for the defendant with words such as "maybe" or "it's possible" in circumstances where it seemed a more direct answer could readily have been given by her. In particular, I noted that Mrs Dib often resorted to one of these types of answers where the questioning appeared to her to be difficult or uncomfortable. In relation to many aspects concerning the August 2014 accident, particularly in her evidence in chief, Mrs Dib appeared overall to have a reasonably good recollection of events. However, when it came to other matters in cross-examination, her recollection appeared to be much less reliable and she often stated that she could not recall matters. This was even the case in relation to fairly recent events: see for example T266.44-267.44. In referring to this point, I take into account Mrs Dib's lengthy evidence and the fact that she states that she is taking extensive medication: T263.42;
2. Overall, Mrs Dib appeared to me in many instances to have a poor recollection of events, particularly under intense questioning in cross-examination;
3. Mrs Dib was asked whether she had any pain in various areas prior to the accident and she said no: T81-T 82. Mrs Dib denied that in October 2009 Dr Zaki gave her a medical certificate for a musculoskeletal disorder: T132.12. However, it appears that Dr Zaki did give a certificate in relation to Mrs Dib on 13 October 2009 in relation to a musculoskeletal disorder: see Exhibit 3, second defendant's bundle page 184; see also T108.31-.35. As Mrs Dib could have forgotten this, I give the matter little weight;
4. Mrs Dib is recorded as informing Dr Gibson that she had "bleeding from her forehead" in the accident: Exhibit A page 77. She is recorded as telling Dr Davis that she was wearing a seatbelt, no air bags were dispersed and there was no head injury to her: Exhibit A pages 17-18. Mrs Dib is recorded as telling Dr Lowy that she struck her forehead on the dashboard with no cut or bruise: Exhibit 5 page 4 paragraph 6.2. There is no reference in either Dr Hamad's 28 August 2014 clinical notes (Exhibit A page 114) or Mrs Dib's personal injury Claim Form (Exhibit A page 7) or Dr Hamad's medical certificate to her striking the dashboard with her head or cutting her forehead.
Despite this, in her evidence in chief, Mrs Dib said that she could not remember whether she suffered a cut to her forehead in the accident: T88.23. I reject that evidence. In my view, it is inconceivable that Mrs Dib could not recall whether she cut her forehead in the accident having regard to the detail which she was able to give in her evidence in relation to the accident and her injuries. A cut to the forehead would likely be significant to a young woman.
Further, it is clear from the evidence that the plaintiff was wearing a seatbelt at the time of the alleged accident and that the air bags in the car were not activated. There was no evidence before me that the seat belts in the car were defective or otherwise did not operate properly. I cannot see how the plaintiff could either have hit her head on the dashboard of the car or cut her forehead on the dashboard if she was wearing her seatbelt. This is particularly the case where the evidence establishes that the collision was a minor one. In relation to that matter, I accept the evidence of Mr Mansour. I will consider this further below.
Overall, I reject Mrs Dib's evidence as recorded in the medical histories that she struck her head on the dashboard of the car or cut her forehead. I find that she did not. This matter is relevant in relation the plaintiff's credibility and reliability. I treat it with some caution as the histories may be incorrect. However, it is likely that the source of the matter was Mrs Dib herself;
1. Mrs Dib was unable to assist the court as to why she and Mr Diab drove the Volkswagen on the date of the accident as opposed to their usual Mazda family car. Although I think this is something she probably should have been able to recall, I do not find anything necessarily suspicious about using the Volkswagen if it was an otherwise available family motor car;
2. Mrs Dib's evidence was that by 28 August 2014, two days after the accident, Manessa was starting to complain of problems arising from the accident: T165.19. When she was asked whether she told Dr Hamad that Manessa was also having problems arising from the accident, Mrs Dib replied "Maybe, yes, I told him". She then said that she could not recall whether she told Dr Hamad of Manessa's problems in the first consultation: T165.25. However, Dr Hamad's records show that he saw Manessa in relation to a common cold on 1 September 2014, several days after the accident, but there is no recording of complaints arising from the accident in his clinical notes for the day: Exhibit B page 42. It appears that Mr Diab attended Liverpool Hospital with Manessa complaining about a whiplash injury to Manessa's neck on 2 September 2014: Exhibit B page 49. I think it is very likely that if Manessa had been complaining about problems arising from the accident only two days after the accident, as Mrs Dib claims (T165.19), that Mrs Dib would have told Dr Hamad of that fact when she saw him on 1 September 2014 for Manessa's cold as he was the family doctor. In my view, it is unlikely that the plaintiff would not have told Dr Hamad on that day and that he would not have recorded it, particularly as Mr Diab and Manessa attended Liverpool Hospital the next day.
Either Manessa was not complaining about her alleged injuries in the accident at this time or Mrs Dib is wrong about the timing of Manessa's complaints or the complaints made on 2 September 2014 at Liverpool Hospital were incorrect or Dr Hamad failed to record the complaints in his consultation or Mrs Dib failed to mention them. See also T166.7-.29. I think it is more likely that Mrs Dib failed to mention them as Dr Hamad seems to have been a careful note recorder;
1. Mrs Dib is recorded as telling Dr Davis in April 2015 that "although toilet training had been completed prior to the accident Manessa did begin bed-wetting, albeit this has subsequently ceased": Exhibit B page 19. Mrs Dib's oral evidence was that the bedwetting had continued. However, bedwetting in relation to Manessa is not recorded in the Personal Injury Claim Form: see Exhibit B pages 7 and 14. There is also no mention of any bladder issues in Dr Hamad's clinical notes until 10 March 2015: Exhibit B page 40.
I found Mrs Dib's evidence about Manessa's alleged bedwetting to be unsatisfactory. I think it likely that if bedwetting of significance had emerged soon after the accident, as claimed by Mrs Dib, that she would have seen Dr Hamad about it well before March 2015. The apparent suggestion to Dr Davis that the bedwetting had resolved by April 2015, while it should be treated with some caution, adds to this concern. It is also noted that Mrs Dib confirmed in evidence that she had a referral to a specialist in relation to Manessa's bladder but had not taken it any further. I think if it was a problem that action would have been taken by her and there would have been an earlier referral concerning the problem;
1. I also note that there is no reference in any of the school records to Mrs Dib disclosing that Manessa had a bedwetting problem or a day wetting problem. I think this is a relevant matter that Mrs Dib would have disclosed in the form if it existed. Mrs Dib gave evidence that she did not want the world to know about her daughter's problem and that she told a teacher. However, I think the problem would likely have been recorded if it had been raised with the school or a teacher as claimed;
2. Another significant matter is that there is no reference to Manessa's alleged neck, back or leg problems in any of the application forms to the various preschool and other schools. I reject Mrs Dib's evidence that she omitted to put the details down. Having regard to the fact that small children often are involved in extensive physical activity at school, I think it is likely that if Manessa had the physical problems which Mrs Dib claims that she had and has that they would have been referred to by Mrs Dib in the school forms. This was relevant to Manessa's safety and comfort and Mrs Dib appeared to be a devoted mother. This raises further concerns in relation to the reliability and accuracy of Mrs Dib's evidence;
3. This is particularly the case where Manessa's problems with her asthma were revealed in the forms. This evidence must have come from Mrs Dib: see Exhibit 3, the defendant's tender bundle at pages 15-44 and 52-65;
4. Mrs Dib is recorded as telling Dr Gertler, Manessa's psychiatrist, in January 2018 that the Volkswagen car apparently collided with a car in front "and also a light pole". Although caution should always be exercised in relation to histories in medical reports, this appears an unusual matter for Dr Gertler to have made up or erroneously included in his report. In cross-examination, Mrs Dib initially said that it was "possible" that she told Dr Gertler that and that "maybe I told him that" but then said she did not remember and did not know: T177.7-.36.
Mr Mansour rejected the suggestion that the Volkswagen hit a light pole: T41.1-.18. His evidence of being in a lane of traffic stopped at the lights is inconsistent with the Volkswagen hitting a light pole.
I find that the suggestion that the car in which Mrs Dib was travelling hit a light pole to be incorrect. It is inconsistent with all the other evidence in the case. Mrs Dib's failure to immediately reject this and to suggest that it was "possible" that the car may have hit a light pole and that "maybe it did" shows her to have a very poor recollection of the alleged accident. This again impacts on her reliability;
1. Mrs Dib's evidence is that she has suffered serious injuries and disabilities as a result of the accident. However, in my view the evidence clearly establishes that the accident was only a minor collision. I accept Mr Mansour's evidence that the impact was "fairly light" (T32.11), it was not a major accident (T36.5) and his car was only slightly damaged (T48.8). See also Exhibit 8. This is inconsistent with the extent of injuries and disabilities which Mrs Dib claims. It must be recalled that there is no radiological evidence suggesting serious injuries arising from the accident. Similarly, the plaintiffs' medical experts claim Mrs Dib had only whiplash and soft tissue type injuries. Senior Counsel for the plaintiffs submitted that the court could not find that the minor nature of the accident was a factor contrary to Mrs Dib's claimed injuries and disabilities. Counsel for the defendant submitted to the contrary relying on the decision in El-Mohamad v Celenk [2017] NSWCA 242 at [16]. In my view the approach of Basten JA (with whom McColl JA and N Adams J agreed) at [16] accords with common sense. It is a relevant factor to be taken into account but is not determinative ;
2. Mrs Dib's statements to medical practitioners and her oral evidence before the court are that she has been severely disabled as a result of the accident and has been unable, for a lengthy period, to do household work or domestic duties of any substance and has relied heavily on assistance from her sister and mother and mother-in-law or to a much lesser extent her husband. Mrs Dib gave evidence that she could only undertake some light work around the house: T118.12.
This is inconsistent with Mrs Dib's signed statement dated 23 November 2015, which she apparently provided to a solicitor acting for her husband, Mr Michael Abboud, on 23 November 2015 in relation to a motor accident claim made by her husband. Mrs Dib did not deny her signature on the statement or on the earlier statement dated 3 March 2014: Exhibits 1 and 2. I will consider Mr Abboud's evidence further below.
The 23 November 2015 statement says that Mrs Dib continues to provide Mr Diab with domestic assistance to a significant extent which is listed in paragraph 3 of the November 2015 statement. In paragraph 4, Mrs Dib states that she initially provided her husband with approximately 10 to 12 hours of assistance per week and then provided him with a reduced amount of assistance of about 7 to 10 hours per week.
This evidence is completely inconsistent with the oral evidence of Mrs Dib and the history which she has provided to various medical practitioners and occupational therapists in relation to her limitations arising from the August 2014 accident.
Mrs Dib also agreed that she signed the earlier statement dated 3 March 2014. Initially, she claimed that she signed the November 2015 statement when requested by Mr Diab without looking at it and without reading it and assuming it was the same as her earlier statement.
Later, on the sixth day of the trial, Mrs Dib claimed that when she signed the form she had a lot of medications and did not know what it was and so she "simply signed it and gave it to him": T263.33. She said that if she has taken medications she would just sign a document without reading it: T264.44. When the document was translated in its entirety by the interpreter, Mrs Dib claimed that it was the first time the statement had been translated to her: T266.13. Earlier, Mrs Dib had said that all she remembered was that her husband presented her with the statement at home and asked her to sign it, which she did: T235.35-.41.
Counsel for the defendant submits this evidence should not be accepted. Senior Counsel for the plaintiffs submits that the statement which is Exhibit 2 should not be regarded as significant to Mrs Dib's credit. Further, it is said that the timing of the statement has to be considered in the context of medical reports given around November 2015.
I reject this evidence of Mrs Dib. First, her evidence that the statement was simply provided to her by Mr Diab at home and she signed it without reading it, is inconsistent with the fact that the 23 November 2015 statement is witnessed by Mr Michael Abboud who Mrs Dib accepted was her husband's solicitor at the time. I find it inconceivable, without compelling contrary evidence, that a solicitor would witness a signature if it was already signed when a statement was given to that solicitor.
Mr Abboud's evidence in chief (T454-5 as to the second statement) was that he translated the two statements to Mrs Dib from English to Lebanese in his office before she signed them and he witnessed her signatures. Although there were no notes of the conferences and his recollection was attacked, this approach is consistent with his signature as a witness. It is also consistent with the office diary records: Exhibits 5 and 6. Mr Abboud's evidence was that in relation to the second November 2015 statement he obtained the information in it from Mrs Dib whilst Mr Diab and his mother Mrs El Kabbout were present: T515.40-516.37. This was attacked and is clearly inappropriate as it allows questions as to the independence of the statement to be raised.
Mr Abboud was firm in his evidence that he obtained the information in the second Dib November 2015 statement from Mrs Dib herself despite her husband being present: T516.37. He said he had an actual recollection of this. He also gave evidence that he did not witness the statement returned to him already signed by Mrs Dib as this would have been "unethical": T510.17. Mr Abboud confirmed that he had an actual recollection of Mrs Dib coming in on a second occasion and signing the November 2015 statement in front of him which he then signed and dated: T519.47-520.17.
Mr Abboud's evidence gave some cause for initial concern and caution. He initially gave evidence that he had no recollection of the matters (T464). He confirmed that he had no file notes of the meetings (T464). He saw three potential witnesses together which may have been challenging for Mrs Dib. In his evidence given on 22 June 2018 he gave inconsistent evidence as to his actual recollections and said he had an actual recollection of seeing Mrs Dib on two occasions in relation to the November 2015 statement, once to obtain the information to prepare the statement and once to sign it. After considering all these matters and the submissions from the parties as to them, I accept Mr Abboud's evidence as accurate that he has an actual recollection of the two meetings and find that they did occur as he stated in his evidence in chief. His later evidence was given when he was not pressed for time (as he had been in his earlier evidence); he was thoroughly cross-examined on the issues and maintained his recollections; he frankly conceded he saw the three potential witnesses together; he said he would never witness an already signed document as it was unethical and he impressed the court as being direct and forthright and considered on the issue. I accept this evidence as truthful.
The second reason I reject Mrs Dib's evidence as to the circumstances in which the November 2015 statement was signed by her is as follows. Mrs Dib struck me as a careful and intelligent woman. I think it is highly unlikely that she would sign a document which she knew was for potential legal proceedings without reviewing it carefully. This is particularly the case where she was separated from Mr Diab at the time. I also think it is unlikely that she would have signed it without having it interpreted if she thought she did not understand any aspect of it or did not know what it was.
In my view, the two statements signed by Mrs Dib in March 2014 and November 2015 are fundamentally at odds with Mrs Dib's oral evidence and the histories which she has provided to the various doctors who have provided medical reports for the purposes of the proceedings.
Having regard to the nature of the statements and in particular the last paragraph in each statement which provides "I state that the above represents a true version of the events and I am prepared to attend and give evidence to that effect should I be called upon to do so", the statements, made at an earlier point in time when her recollection was likely to be better, are more likely to be correct than her oral evidence. Further, Mrs Dib had no real interest in her husband's claim unlike the present proceedings.
The two signed statements substantially further damage my perception of the accuracy and reliability of Mrs Dib's evidence in these proceedings as to the nature and extent of her claimed injuries and her need for domestic assistance from the day of the accident and thereafter;
1. The evidence of Ms Amne Dib is inconsistent with the evidence of the plaintiff that she was provided substantial domestic assistance by Amne Dib after the August 2014 accident to the present day. I have set out the evidence of Ms Dib above in some detail. Her evidence of her injuries and disabilities arising from her June 2012 accident is inconsistent with Ms Dib providing any real assistance as claimed to her sister. In my view, the answers given by Ms Dib as to her injuries and disabilities in cross-examination are far more likely to be accurate than her evidence in chief on these issues. Importantly, Ms Dib confirmed that after August 2014, because of her own physical problems arising from her June 2012 accident, she was not in a position to help the plaintiff Mrs Dib in respect of any domestic work: T467.47.
For the above reasons, in my view, Mrs Dib was an unreliable and unsatisfactory witness. Having regard to the evidence as to domestic assistance, I find that she heavily exaggerated her problems arising from the August 2014 accident both to the court and to medical practitioners. I find, in the light of the November 2015 statement, Ms Dib's evidence and Mr Abboud's evidence, that she was able to undertake domestic chores at her house and look after her children soon after the August 2014 accident. In my opinion, great caution should be exercised before any aspect of her evidence is accepted unless it is corroborated or confirmed by independent and reliable evidence. The histories she is recorded as providing all medical practitioners in and from August 2014 should similarly be regarded with caution. It is noted that these histories include her alleged inability to undertake virtually all domestic activities and her reliance on family members, particularly her sister. My assessment of Mrs Dib and her evidence is of significant importance to the determination of the factual and legal issues in the case.
The submissions of the parties
The parties made detailed oral and written submissions in relation to the two matters.
The plaintiffs' submissions were, in general summary, as follows:
1. Mrs Dib should be accepted as to her evidence. She should be found to be an honest witness;
2. The evidence of Mr Mansour provided support that the accident occurred as Mrs Dib had indicated. Mr Mansour should be accepted as a completely independent witness and as a witness of truth;
3. Mr Safi provided support for the fact that Mr Diab, Mrs Dib and Manessa were all present when he arrived at the scene of the accident. This provided support for the fact that Mrs Dib and Manessa were in the Volkswagen Beetle when it collided with Mr Mansour's car. Exhibit E also supported Mrs Dib's presence in the car;
4. The plaintiffs' claims in relation to the accident are supported by the fact that Mr Mansour's insurer has satisfied the claim for property damage to his car and the statutory declarations attached to the personal injury claim forms;
5. The medical evidence, including the general practitioner notes of Dr Hamad, were consistent with the plaintiffs' complaints of ongoing pain, particularly the claims of Mrs Dib;
6. The pain experienced by Mrs Dib and Manessa is supported by the police record of the reporting of the accident;
7. The plaintiffs' claims are supported by the prescribing of medication by Dr Hamad and by Mrs Dib undertaking a course of physiotherapy;
8. The medical records establish a steady increase in high-strength analgesic/narcotic medication consumption by Mrs Dib. The medications are shown to be prescribed on a repetitive and continuous cycle (submissions paragraph 46);
9. This was confirmed by Mrs Dib's oral evidence on the twelfth day of the trial;
10. The medicolegal evidence in relation to Mrs Dib is extensive and consistent with her case (submissions paragraphs 51-61);
11. Dr Lowy's reports for the defendant are questionable. Dr Lowy fails to provide an appropriate reasoning process for his opinion and to explain his view that the "natural history of such soft tissue injuries" should have led to an early resolution of Mrs Dib's problems. In summary, Dr Lowy's reports are short on analysis and do not properly explain the underlying reasoning for his opinions (submissions paragraphs 67-73);
12. There are also problems with the opinion of Ms Dawn Piebenga, the occupational therapist, who does not adequately identify the research she refers to in relation to either exercise or the management of soft tissue injuries or muscular strain injuries (submissions paragraphs 74-77);
13. The plaintiff Mrs Dib's evidence in relation to domestic assistance was supported by her sister Amne Dib and was detailed and should be accepted (paragraphs 78-91);
14. The treating evidence spanning almost four years of Mrs Dib is very persuasive evidence indicating the severity of her physical problems (paragraph 92);
15. There is similar convincing evidence in relation to the treatment of Manessa (submissions paragraphs 94-101);
16. The evidence supports the award of substantial damages which are set out in the written submissions;
17. The accident should be found to have caused psychological symptomatology in Manessa and caused the bedwetting of which the plaintiff Mrs Dib refers. The evidence of Dr Davis in his reports also supports an award of damages as a buffer for loss of future earning capacity (submission paragraph 98).
Findings in relation to the medical evidence concerning Manessa
I now turn to consider my findings in relation to the medical evidence concerning Manessa.
These findings assume that Manessa was in fact a passenger in the Volkswagen Beetle sedan driven by Mr Diab on 26 August 2014 as alleged by the plaintiffs. I will consider this issue further below.
In relation to the accident (assuming it occurred), I make the following relevant factual findings concerning Manessa:
1. The collision between the car driven by Mr Diab and the other vehicle allegedly driven by Mr Mansour was on all the evidence a minor one. For these purposes I accept that Mr Mansour was the driver of the other vehicle into which Mr Diab's vehicle collided. As stated above, although he has some difficulties with his recollections, I accept Mr Mansour as a witness of truth. I accept his evidence as in general terms truthful and reliable.
Mr Mansour has variously described the collision in the following terms: Mr Mansour said in chief that his vehicle was "just bumped a little bit forward" (T25.36); he stated "to me it [the impact] was fairly light" (T32.11); Mr Mansour said "it was a small accident" (T33.41); Mr Mansour said "it wasn't a major accident, in my eyes" (T36.5) Mr Mansour said "it was a minor accident" (T48.2); Mr Mansour said his car was "a little bit damaged" (T48.8); there was limited damage to his car: T48.16-.21. The documents in Exhibit 8 support this description.
Mrs Dib did not give any compelling evidence to the contrary.
Although there was evidence from Mr Safi that the Volkswagen was loaded onto a tow truck (T68.25), there is no compelling evidence that the damage to the Volkswagen was at all extensive. There is no evidence as to why the car was loaded onto a tow truck.
Based on all these matters, I find that the accident was a minor one with a slight impact between the two colliding vehicles;
1. The evidence establishes that Manessa, as a three-year-old, was in a child car seat at the time of the accident: T87.2; T88.41; T88.48. I accept the evidence of Mrs Dib on this issue;
2. Although Mrs Dib claimed that Manessa complained of pains about two days after the accident, there is no record of her referring to the accident or the pains when she took Manessa to see Dr Hamad for a common cold on 1 September 2014, five days after the accident: Exhibit B page 42. For the reasons given in Mason v Demasi, I exercise some caution in relation to the medical notes, particularly as the evidence establishes that the next day Manessa was taken to Liverpool Hospital where a whiplash injury to the neck was diagnosed: Exhibit B page 49;
3. The first reference to incontinence in relation to Manessa or any related condition in the notes of Dr Hamad was on 10 March 2015, several months after the accident: Exhibit B page 40. If the symptoms had been concerning and had occurred earlier I think it likely that Mrs Dib would have consulted Dr Hamad promptly;
4. Despite Mrs Dib's assertions of the complaints made by Manessa, she did not refer to any of the alleged pains or other physical complaints relating to Manessa in any of the school application forms, despite the importance of them to Manessa's comfort and safety during school activities;
5. There are no investigations showing relevant radiculopathy in Manessa's neck or back before the court;
6. On Mrs Dib's evidence, Manessa had an unhappy time at Sadleir Public School but her happiness and social experiences have improved substantially upon moving to XXX Public School;
7. Much of the history of alleged complaints by Manessa is given by Mrs Dib. This is not surprising having regard to Manessa's age. Issues of the reliability of Mrs Dib generally are very relevant. As set out above, I have found Mrs Dib to be an unreliable witness.
Duty of care and breach
In accordance with Section 3B(2)(a) of the Civil Liability Act 2002 (NSW) ("CLA"), Divisions 1-4 and 8 of Part 1A of the CLA apply to "motor accidents".
Therefore, in ascertaining whether a driver of a motor vehicle has breached his or her duty of care and whether any breach so found was causative of any injury suffered by the plaintiff in any motor vehicle accident, the court must apply the sections in those Divisions including ss 5B, 5C and 5D.
In the present case, the evidence as a whole establishes that Mr Diab did not apply his brakes appropriately or was travelling too fast to avoid colliding with the rear of the vehicle driven by Mr Mansour. The duty of the driver of a motor vehicle to users of the roadway, including pedestrians or other vehicle drivers, is to take reasonable care for their safety having regard to all the circumstances of the case. Under the common law and the CLA, the standard by which reasonable care is measured for the driver of a motor vehicle is an objective and impersonal one to be addressed prospectively and by reference to what a reasonable driver in the defendant's circumstances would have done, if anything, by way of response to any foreseeable risk of injury or sources of danger to other road users: Marien v Gardiner [2013] NSWCA 396 at [33]-[37]; Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 at [142]; Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at [11]-[12].
Sections 5B and 5C of the CLA are as follows:
"5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
Causation
Sections 5D and 5E of the CLA provides as follows
"5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
5E Onus of proof
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
Accordingly, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The issue of factual causation to be decided in accordance with s 5D(1)(a) of the CLA involves the application of a "but for" test of causation. That is, a determination that in accordance with the section that the negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 at [18]; Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ; at [189]-[198] per Beazley P and at [319]-[324] per Basten JA.
The question which thus arises in the present case is whether the breach of duty of care by the defendant caused the collision and caused the injuries of which the plaintiffs complain. In my view, but for the breach of duty in the present case, the collision would have been avoided. Further, the plaintiffs would not have suffered any injuries.
The defendant's submissions, in general summary, were as follows:
1. The court should not be satisfied that the plaintiffs have discharged their evidentiary onus in relation to crucial factual matters, including that they were passengers in the car alleged at the time of the collision and that they suffered injury, loss and damage as a result of any collision: written submissions paragraph 4;
2. In the alternative, the court should find that the plaintiffs have not established on the balance of probabilities that they have suffered any compensable loss as a consequence of the collision: written submissions paragraph 5;
3. The court would not be satisfied that the plaintiff Mrs Dib has required domestic assistance as claimed or will require domestic assistance into the future. Similar submissions are made about treatment expenses: paragraph 7. The court should find that Mrs Dib was not a witness of truth and should prefer the evidence of Mr Abboud;
4. In relation to Manessa, the court would not be satisfied that Manessa has suffered any injury, loss or damage. Treatment expenses paid so far are relied on as a defence: s 83(5) of the Act: submissions paragraph 8;
5. The plaintiff Mrs Dib had a poor recollection of the accident; submissions paragraphs 10 and 29;
6. Mr Mansour's evidence was inconsistent to some extent with that of Mrs Dib. His evidence as to the presence of a child at the accident was unpersuasive. His contact with Mr Diab after the accident was not properly explained by him: paragraphs 15, 18, 21-23 and 36;
7. Mrs Dib's credit has been significantly impugned: paragraphs 28-34 and 56. In relation to her evidence of the accident, it is inconsistent with the evidence of Mr Mansour: paragraph 33. In the alternative, her evidence should be regarded as completely unreliable;
8. A Jones v Dunkel inference should be drawn in relation to the plaintiffs' failure to call Mr Diab as a witness in their cases: paragraphs 38-39. The plaintiffs submitted that such an inference was not available and should not be made. I am not persuaded that even if available, I should draw that inference. I am not obliged to draw the inference, even if available: Newell v De Costi [2018] NSWCA 49 at [78]-[80]. Mrs Dib and Mr Diab are separated even though apparently living under the one roof. It would arguably have been improper for the plaintiffs' lawyers to approach Mr Diab directly for a statement as he was the defendant. The plaintiffs would have been calling him without knowing his evidence. Overall, a failure by the plaintiffs to call Mr Diab does not appear to me to be unreasonable. I do not regard him necessarily as being in their camp. If called by them, it would have enabled the defendant to cross-examine him on many aspects of the case, including the accident, domestic assistance, Exhibit 2 and the assistance given by Ms Dib. I cannot infer that Mr Diab was not called through fear as to what he might say: Fabre v Arenales (1992) 27 NSWLR 437 at 449-50;
9. The claim of Mrs Dib that she has required domestic assistance since the accident due to her injuries and that this has been provided principally by her sister should be rejected: paragraphs 41 and following. One day after the accident she presented to Dr Hamad who found a full range of movement in her neck and back (paragraph 46). Mrs Dib did not disclose to any of the medico-legal experts the assistance she was providing to her husband from 2014-15 (Exhibit 2) which is inconsistent with her claims of gross disability arising from the accident: paragraphs 50-56. Mrs Dib's claims that she simply signed the second statement dated November 2015 when asked to by her husband at home are "patently untrue" in the light of Mr Abboud's evidence. Mr Abboud witnessed her signature: paragraph 55;
10. Ms Amne Dib should be rejected as a reliable witness in relation to her evidence that she has provided extensive domestic assistance to the plaintiff from August 2014 to date. Her evidence in cross-examination is much more likely to be accurate and reliable as to Ms Amne Dib's ongoing physical problems from June 2014 to after the August 2014 accident: paragraphs 63-65;
11. Mr Abboud should be accepted as a witness of truth in relation to how the two statements from Mrs Dib were obtained: Exhibits 1 and 2. These statements are fundamentally at odds with the plaintiffs' claims for domestic assistance: paragraph 55;
12. The plaintiffs' case on damages primarily rests upon accepting the plaintiff Mrs Dib's evidence as to the severity of the impact, the alleged injuries and the ongoing disabilities. The medical evidence rests upon the accuracy of the histories provided by Mrs Dib. Ms Lethbridge's first report was several months before the November 2015 statement was signed by Mrs Dib. The plaintiff Mrs Dib's medico-legal reports were provided and based upon false histories as to her capacities including an alleged inability to undertake domestic chores: paragraphs 69-73. They accordingly have no evidential value: paragraphs 71-73. The evidence of the plaintiff Mrs Dib and Amne Dib as to gratuitous assistance would not be accepted and therefore the court would not be satisfied that the threshold provided in s 141B of the Act has been met or that future assistance will be required, even commercially. The plaintiff Mrs Dib's claim for past and future treatment expenses should also be rejected. There would be no award for damages beyond the payments made by the insurer as to which there is a statutory defence pursuant to s 83 of the Act: paragraphs 74-76;
13. In relation to Manessa's claim, the objective evidence does not support the claim that Manessa suffered any injury as a consequence of the accident: paragraph 78;
14. Despite Mrs Dib's claim that Manessa started complaining of pain the day after the accident, Mrs Dib did not take Manessa to see Dr Hamad until over one week after the accident. On 1 September 2014 Manessa saw Dr Hamad but only in relation to a common cold. This is inconsistent with the claim that Manessa had suffered injuries and was presenting with symptoms in the week after the accident. See also the Liverpool Hospital notes for 2 September 2014: paragraphs 79-82;
15. The first report of bedwetting in relation to Manessa was on 10 March 2015, over 6 months following the accident. There was no reference to wetting (or the alleged physical) problems in any of the school applications or documents. Dr Davis states that any bed wetting issues had ceased by the time of the first review on 28 April 2015: paragraph 84. It is likely Mrs Dib would have referred to physical problems if in fact Manessa had them at the time: paragraphs 85-89;
16. The accident was extremely minor and Manessa was properly restrained in a child seat at the time. The medical records are also inconsistent with the claimed injuries. The medical opinions in relation to Manessa are dependent on the accuracy of the reporting of symptoms by the parents particularly Mrs Dib. There are no objective signs of injury or disability. The court would not be satisfied that Manessa has suffered any relevant loss beyond the treatment expenses already paid by the insurer: paragraphs 93-95.
The nature of the accident, suggesting a very slight impact in the collision, is relevant to an assessment of Manessa's likely injuries and disabilities, if any, but is not determinative: El-Mohamad v Celenk [2017] NSWCA 242 at [16].
I will first consider Manessa's alleged physical injuries and disabilities.
In his examination for the Personal Injury Claim Form Medical Certificate on 11 September 2014, Dr Hamad diagnosed a whiplash neck injury with anxiety reaction. A similar diagnosis was made at Liverpool Hospital: Exhibit B page 69.
In his medical report dated 17 February 2015, Dr Hamad referred to the presentation and complaints of Manessa at a consultation with him on 5 September 2014. He noted that Manessa was very tender on the lower and mid-cervical spine. He also noted tenderness in the left shoulder but with a good range of movement. He diagnosed a whiplash injury to the cervical spine with facet joint dysfunction and an anxiety reaction due to the accident. His prognosis was good given enough time and physiotherapy treatment. He also referred to other attendances and expressed the opinion that Manessa was still suffering from neck and left shoulder pain and insomnia.
I have set out Dr Davis' opinions in substantial detail, above. It was clear that Dr Davis relied heavily on the complaints as stated by Mrs Dib, who I have found to be an unreliable witness in relation to significant aspects of her evidence. However, there was some complaint by Manessa herself as recorded in the first report. Most of Dr Davis' findings in his first report were normal and he diagnosed a whiplash associated disorder with a reasonable prognosis. In his second report, Dr Davis said there was no evidence to suggest any form of radiculopathy and Manessa's prognosis was for possible variable symptoms of a minor nature, although he again referred to the possibility of some spine discomfort in the future.
It is clear that the findings of Dr Davis and Dr Hamad in relation to physical injuries to Manessa were of relatively minor soft tissue injuries.
The defendant did not rely on any medical reports solely in relation to Manessa's physical injuries.
However, the reports of Dr Rikard-Bell suggest that Manessa appeared to that doctor to be active and interactive. Dr Rikard-Bell did not refer to any obvious physical limitations and in his second report dated 18 September 2017, reported that Manessa did not seem to recall the accident.
Having regard to the above material, I find that Manessa had a whiplash-type neck injury and minor soft tissue injuries. I find that any physical injuries to Manessa arising from the accident were minor and any possible symptoms for the future are also minor. There is no suggestion of any form of radiculopathy. The minor nature of the impact and the fact that Manessa was in a child safety seat would indicate the injury was of a whiplash type, as is clear on the evidence. The report of Dr Davis is in my view inconsistent with Mrs Dib's assertions as to the ongoing complaints or physical problems by Manessa. In any case, I find Mrs Dib to be an unreliable witness and she gave Dr Davis the history in relation to Manessa.
The school records are also inconsistent with any ongoing serious pain or restrictions. If these matters existed, it is highly likely Mrs Dib would have informed the various schools, as she did with Manessa's asthma problems, to ensure her welfare and safety.
In the end, I am satisfied that Manessa suffered a limited whiplash type injury in the accident with no reported radiculopathy and that any injuries had largely settled by the end of 2014 and any ongoing limitations or pain since that time are very minor and can be dealt with by common non-prescription analgesia when symptoms occasionally arise. Physical complaints relating to Manessa were largely relayed by Mrs Dib who I find to be an unreliable witness. The complaints of Manessa herself, when looked at in terms of her presentation, also suggest that the injuries were very minor.
In relation to the allegations of psychiatric injury, the court has the reports of Dr Gertler and Dr Rikard-Bell. I have summarised these reports above.
In my view, the reports of Dr Rikard-Bell and his findings that any adjustment disorder that Manessa may have had following the accident on 26 August 2014 is fully resolved, should be preferred for the following reasons:
1. The first report of any incontinence in Manessa was on 10 March 2015 in the records of Dr Hamad. This is well after the accident;
2. I accept Dr Rikard-Bell that on his examination, Manessa had no recollection of the accident;
3. The school documents do not record any significant or persistent problem with enuresis;
4. The ultrasound performed of Manessa's bladder suggested no underlying problem;
5. On examination, Dr Rikard-Bell reported that Manessa was active, her affect was reactive, she seemed happy and there was no cognitive disturbance. In addition she did not seem to have any worries or concerns and was interested in playing;
6. I accept Dr Rikard-Bell's opinion that any reports of anxiety in the car and wetting did not reach a threshold of psychological disorder;
7. Mrs Dib's complaints about Manessa's pain, wetting and sleep disturbance did not match the presentation to Dr Rikard-Bell of a child who appeared to be happy and relaxed and able to go to the toilet with her mother without any signs of any physical discomfort;
8. I accept Dr Rikard-Bell's opinion that bed wetting in itself is not a psychological injury unless it is clearly associated with a psychological disorder;
9. I accept Dr Rikard-Bell's opinion in his second report that any bed wetting is likely to improve with maturity;
10. It is recorded in Dr Gertler's January 2018 report that Manessa denied to Dr Gertler feeling frightened when travelling in the car;
11. I accept Dr Rikard-Bell's opinion that nocturnal enuresis is a common condition in children and is commonly not related to any mental disorder. I accept Dr Rikard-Bell's comment in his third report that Dr Gertler's report attempts to provide a report which takes at face value Mrs Dib's concern and opinion where that is not reflected in the objective symptoms or comments from Manessa;
12. The complaint of nightmares in Dr Gertler's report is not established to be anything different to what would normally be associated with sleeping problems with small children.
For these reasons I prefer the opinion of Dr Rikard-Bell that Manessa is currently not suffering from any psychiatric or psychological disorder requiring further assistance.
Applying s 5B of the CLA to the facts of this case:
1. The risk of the defendant's vehicle hitting Mr Mansour's vehicle and causing injury to either the occupants of Mr Mansour's vehicle or the occupants of his own vehicle if the defendant did not stop or take evasive action or reduce his speed was clearly a foreseeable risk, being a risk of which the defendant ought to have known;
2. The risk was clearly not insignificant. Mr Mansour's vehicle was directly in front of the defendant's vehicle and the circumstances therefore required him to halt and to reduce his speed in the light of the traffic and the traffic lights;
3. In all the circumstances, a reasonable person in the defendant's position would have taken the precautions of slowing down, braking and stopping in a slow and cautious manner;
4. There was a high probability that a collision would occur if care was not taken by the defendant;
5. The harm which could occur if care was not taken to slow down and stop was potentially serious;
6. The burden of taking precautions on the defendant to avoid the risk of harm by slowing down and stopping his vehicle was not significant;
7. The social utility of the defendant in driving his car with his family to KFC for dinner was not such that the risk of harm created should be excused.
It is clear that the defendant should have driven carefully and should have taken all necessary steps to stop his vehicle in all the circumstances. It is not suggested that the collision was unavoidable, for example by Mr Mansour swerving in front of the defendant's vehicle.
Accordingly, in my view the defendant failed to take reasonable care in all the circumstances for the safety of the plaintiff, Mrs Dib, and Manessa Hawchar. A reasonable driver would clearly have taken all necessary steps to slow down and stop the vehicle to avoid a collision. Accordingly, I find that there was a breach of the duty of care owed by the defendant to the two plaintiffs in the present case for the reasons given.
Accordingly, causation is established in the present case. In the circumstances of this case there is no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm so caused and there is no reason why responsibility for the harm should not be imposed on the defendant: s 5D(1)(b) and 5D(4) of the CLA.