Kitoko v Mirvac Real Estate Pty Ltd

Quantum

The plaintiff provided a Schedule of Damages exceeding $4m. He told me, however, that he recognised the limited jurisdiction of the District Court and would be satisfied with $750,000.
I have already stated my conclusion that the aneurism was not caused by the accident. The next task is to decide what was caused by the accident. As already mentioned Dr Hsu reached a diagnosis in October 2011 of nerve damage and possible Trigeminal Neuralgia.
Dr Saravanja was treating the plaintiff for neck and back complaints. The plaintiff said his back complaints did not begin until 2011. The history given to Dr Harvey (Exhibit 1D3, page 2) is that the pain in the neck and low back started in late 2012. Although the plaintiff's English was understandable it is his second language and I take into account the warnings given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2) when placing reliability on histories in the medical reports. I do note that the plaintiff did not challenge Dr Harvey, when he cross-examined him, about this history but perhaps he should be excused for not being aware of the requirement to do so.
Returning to Dr Saravanja, he states in his most recent report (6 February 2015) that: "With regards to Mr Kitoko's current situation, I do not believe that at present he requires surgical intervention. He has significant aggravation of cervical and lumbar spine normal function as a result of his injury. He states quite unequivocally that he had no discomfort or problems prior to his injury."
Dr Saravanja's reasoning process seems to be that if he had complaints after the injury they are probably related to it because they did not exist before the injury. There is of course logic in this approach but the absence of any apparent injury to, at least the low back, in the accident seen on the CCTV footage does cause me some concern about the diagnosis.
The plaintiff made the good point that Dr Saravanja was not required for cross-examination so that his views should be taken to be accepted. The main difficulty with Dr Saravanja's opinion is that he has a history of the plaintiff having neck and back problems from the accident. This is not the case, especially in regard to the low back.
Dr Saravanja carries on to state that the plaintiff will need surgery in the future if his symptoms continue to deteriorate. He does not state what the surgery is, what it will cost or when it might occur.
Dr Harvey's report seemed to find considerable favour with the plaintiff, although he did challenge the doctor about his conclusion stated at page 10 in answer to question 5. The plaintiff suggested to Dr Harvey that if he had experienced pain during examination, while having his leg flexed, that confirmed nerve damage. Dr Harvey disagreed stating that the area where the plaintiff said he was in pain was not consistent with the type of damage suggested by the plaintiff.
Ultimately Dr Harvey concluded that the plaintiff had not suffered any physical musculoskeletal injury, that he did not have any objective evidence of permanent disability and he could not see any reason for further rehabilitation or limitation on employment. Dr Harvey did however point out that he was not qualified to comment on any head injury or injury to the plaintiff's left temporal-mandibular joint (page 8).
As far as Dr Blum is concerned, he did not seem to think there was much wrong with the plaintiff at all, stating that he did not "think the injuries and disabilities are consistent with the manner in which the accident occurred. There were no problems with his neck or back immediately after the incident and there were no fractures or even local problems with the skin, his nose or his eyesight".
There is no doubt that the plaintiff's head, or face, hit the window. It is not surprising that he immediately suffered headaches and that the headaches have continued as have problems with his jaw. The defendants conceded this conclusion.
I also could not exclude the possibility that the plaintiff suffered some soft tissue damage to his neck.
I do have great difficulty however in concluding that he injured his low back in the accident and that the 'whole body' symptoms of which he complains are related to it.
Stretching my discretion as far as I can allow it I think that the plaintiff has satisfied me that he suffered injury to his head (but not the aneurism) leading to persistent headaches, pain in his jaw and also a soft tissue injury to his neck. I do not think that the low back, bowel, urine and sexual problems can be attributed to the accident.
Based on their concessions the defendants suggested non-economic loss of 20%. This may be a somewhat generous assessment (on their submissions of injury). However if I add in a soft tissue injury to the neck I think the percentage should increase to 25%. It is now five years since the accident and the plaintiff still has the problems which I have found to be related and they are likely to continue.
Pursuant to Section 16 of the CLA 25% of a most extreme case equates to $37,000.
The defendants allowed $2,000 for medical expenses. They said there should be no allowance for any other head of damage.
Dealing now with past economic loss. The plaintiff suggested $243,860. There was no evidence of his earnings from any taxi owner, there were no tax returns and there were no indications of what he might earn as an academic. There was no evidence of any employer ever having paid superannuation benefits on the plaintiff's behalf.
As a result of prompting by me the plaintiff did produce some guidelines for Postdoctoral Research Fellowships at UTS in 2016 (Exhibit D). The document suggests an annual gross salary of about $95,000 plus superannuation at 17%. Not only are the positions predicated on having a PhD but I have no idea whether the plaintiff's chosen field would be of interest to UTS let alone what his chances of obtaining a position might be.
It is almost impossible to gauge the plaintiff's likely loss of income other than, in a very basic fashion based on him apparently losing about $200 per week due to reduced taxi driving. Any addition would be an over-speculative loss of chance. In any event the plaintiff said he was still pursuing his academic ambitions, albeit possibly delayed.
Based on the injuries that I have found the plaintiff suffered in the accident, and accepting that their effects have continued to the present day, I think the plaintiff should receive some past economic loss. I also however have to take into account that he has low back problems which would have affected his capacity to drive a taxi and perhaps sit at a desk doing his university work. There is the possibility that he has been, to a degree impaired in pursuing his paid charity work, although I have significant doubts about whether the revocation of the charity's registration (Exhibit C) has anything to do with the plaintiff's condition.
The only possible way I can approach the task is to allow the plaintiff a buffer reflecting the impairments to his economic capacity that I have mentioned above. I think a buffer roughly based on $100 per week is appropriate. This is $25,000. Although I have no idea whether the plaintiff ever received superannuation contributions as a taxi driver I think I should make an allowance at 11% because of the obligation on employers to make such payments. This is $2,750.
The Plaintiff assessed his future economic loss at $2,894,000. As already stated he did acknowledge the District Court's jurisdictional limit.
The calculation for the future can once again only be done as a buffer which is possibly even more speculative than the calculation for the past.
I do not think the plaintiff has established any likely career path whether as a research assistant or as an academic. For purposes of Section 13 of the CLA however I do accept that he would have worked in some field connected to his PhD, once he obtains it, and that he would have continued to do so until reaching 67 years of age. I also think that his future working career would have been subject to higher than normal vicissitudes, possibly in the order of 25%. This increase is to reflect the many unknown elements of his possible success as an academic.
In addition I take into account that he still intends to pursue his academic ambitions and I have no reason to believe that they are now significantly less attainable than they would have been but for the accident.
Taking all these factors into account I think an appropriate buffer for the future is $50,000 including lost superannuation benefits.
Turning to his claim for gratuitous domestic assistance, the plaintiff's evidence was vague and lacking the specificity required for success in this head of damages (as emphasised in Sampco Pty Ltd v Wurth [2015] NSWCA 117).
Firstly I do not accept that the plaintiff was sometimes spending 60 or 70 hours per week on domestic tasks (at the same time as 12 hours a weekday at university and 12 hours each day of the weekend driving a taxi). Secondly, the plaintiff's estimate was of his wife doing four to six hours of domestic work per week. Although perhaps an inference could be drawn that this had been occurring for more than six months it certainly could not be said that the threshold of six hours for six months had been met. Accordingly his domestic assistance claim, both past and future, would have failed.
The defendants agreed with the plaintiff's claim of $2,000 for past medical expenses. I will allow this sum.
The plaintiff claimed $300,000 for future medical expenses made up of surgery to the brain ($70,000), to the neck ($60,000), to the low back ($70,0000) plus "post operation treatments" ($100,000). None of these figures was derived from the evidence. The best I can do is to allow, say, $5,000 for assorted medication and consultations and medication which might be allowed over the coming years.
A summary of my assessment of quantum is as follows: Non-economic loss $37,000 Past economic loss $25,000 Past lost superannuation benefits $2,750 Future economic loss $50,000 Past medical expenses $2,000 Future medical expenses $5,000 Total $121,750

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Judgment (7 paragraphs)

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