Olgun v Kilic

Circumstances prior to accident

1. The plaintiff was born in Turkey on 17 April 1986; meaning that he was just over 29 years of age at the time of the subject accident. He completed his schooling in 2003, studied for one year at a university (in a mechanics course), and undertook a period of employment for about five years as a seaman, pipe welder and plumber in a shipyard in Istanbul. He married in 2010. In the same year he obtained a welders qualification certificate.
2. He migrated to Sydney in June 2011. Between 2011 and 2012, he was employed as a welder at the Eastern Engineering Industries Pty Ltd. In 2012, he obtained certificates in spoken and written English and in the engineering-fabrication trade. Between 2012 and 2013 he changed employment and commenced work at Oz Stainless Steel; also as a welder. In 2013 he changed the nature of his employment. He became a warehouse supervisor at Ozlem Kebabs. That entity distributed foods to a number of retail kebab outlets. Amongst other activities, the plaintiff assisted with loading trucks and packaging goods.
3. During this period of employment with Ozlem Kebabs, and prior to the accident, he suffered an injury to his right hip after lifting a 60 kg kebab. He was off work for a couple days and received some assistance from orthopaedic specialists. In particular, he received a number of injections to his right hip. He also recalled experiencing some neck stiffness by coming in and out of a freezer at his workplace. This only happened once or twice and he went and saw a doctor on one occasion. Otherwise, prior to the date of the accident the subject of this proceeding, he was generally in good health.
4. On the date of the accident, the plaintiff explained that as a result of the collision with the rocks, the passenger door was indented by approximately 50 cm. The plaintiff was left stuck between the front passenger seat and the handbrake to the car. The plaintiff recalled that at the time the vehicle hit the rocks, it had been travelling between 60 and 70 km/h. He recalled experiencing numbness in his right hand and pain in the right side of his neck. He recalled that his head hit the top of the vehicle and he felt pain in the left neck.
5. After the vehicle had come to rest, the plaintiff was able to exit from the vehicle on the driver's side. He felt pain in his left leg, the right side of his neck and numbness in his right hand. The police were called not long after the accident. He was offered the opportunity of being taken away in an ambulance but instead he was driven back to his home by friends. He was taken home which, fortuitously, was very close to the Auburn hospital. He spent a period of three hours waiting at the hospital but did not receive assessment or treatment. He returned home, took a painkiller, and went to sleep.

The effects of the accident

1. The next day, 3 May 2015, he went to the City West Medical Centre where he saw the general practitioner, Dr Vuong. He was tested and given painkillers. The plaintiff told Dr Vuong that he was a front seat passenger and developed low neck pain, and stiffness and headaches. There was no mention of any other pain.
2. Over the next few days, the plaintiff recalled that he felt hot and pain in his neck and both hips. He felt tenderness on his left shoulder, and on his left thigh.
3. The plaintiff was closely cross-examined on his movements soon after the accident. It was put to him that when he went to Auburn hospital on the day of the accident he did not inform the desk staff that he had been involved in an accident. There was no hospital report recording such disclosure. Nevertheless, the plaintiff maintained that he had mentioned that he had had the pain as result of an accident.
4. The accident occurred on a Saturday. Although the plaintiff saw Dr Vuong on the Sunday, he was well enough to be driven to collect the defendant's car later that day. He was able to endure a half an hour drive to assist with conveying the defendant's damaged car to the plaintiff's workplace (the Ozlem Kebab factory) that evening. The intention was for the plaintiff and the defendant to deliver the defendant's car to the 'Wreckers' on the Monday (4 May) after work.
5. On 4 May, the plaintiff took a photograph of the defendant's damaged car during the daytime, outside his workplace. After work he joined the defendant (and someone else) in helping to convey the defendant's car to the Wreckers. The plaintiff explained that the defendant did not speak the English very well. He assisted the defendant to sell the vehicle.
6. The plaintiff admitted that someone at the wreckers suggested that he may be entitled to make a claim for compensation. He also admitted seeing a solicitor two or three nights later.
7. At the time of the accident the plaintiff lived with, and worked at the same workplace, as the defendant. It was put to the plaintiff that at no stage did he ever tell the defendant that he suffered from any pain. In response to this, the plaintiff asserted that the defendant's son had told him that he had complained of neck pain.

Plaintiff's account of injuries & disabilities

1. On 5 May 2015, after having seen a solicitor, he saw a general practitioner (Dr Habiboglu). He complained of cervical spine pain and numbness, a cracked sound with neck movements and a soft collar. No mention was made of any problem with his hips.
2. That day, the plaintiff underwent an MRI scan of his cervical spine. No fracture was noted and no cord lesion was seen. Low-grade discovertebral complexes in the mid cervical spine appeared longstanding and were not associated with exiting nerve compression. No specific cause for the left arm numbness was identified at the cervical level.
3. On 14 May 2015 the plaintiff commenced receiving physiotherapy.
4. On 19 May 2015, the plaintiff saw Dr Habiboglu again. He reported clicking sounds in his right hip. It was put that these were the same symptoms from his 2013 treatment. Earlier in his cross-examination, the plaintiff accepted that he had received advice from two specialists, in 2013, that he had a constitutional problem with his right hip and would probably need a hip operation. The plaintiff acknowledged seeing the specialists but could not recall receiving the advice.
5. The plaintiff accepted that, from 2013 until 18 May 2015 he had not told any medical professional about any clicking sounds. This was because he felt okay after 2013.
6. When he gave his evidence in chief, he was asked by his Counsel as to his ongoing problems. This is described as pain in the back rear side of his neck; which travelled down his right shoulder towards his right hand. He said he felt less strength in his right hand than his left hand (he said he was left-handed). He explained that his neck problem was intermittent; such as when he grabbed some shopping or looked up too much or even because of the way he slept. It did not affect him when he was driving.
7. He was asked by his Counsel as to the condition concerning his hips. The plaintiff said that if he ran he would experience pain; with pain on the right side of the back of the leg. He could walk for a couple of kilometres but would start limping on the right side thereafter. There could be lower back pain on the right side. He tries to limit these problems by limiting the activities he anticipates will cause him pain: I understood him to say that he stopped running, does not walk for very long distances and tries to avoid bending.
8. Under cross-examination, the plaintiff is referred to inconsistencies between his complaints to his physio of a problem on his left hip but not his right side. In fact there was no record of any complaint about problems with his right hip (subject to his constitutional problem discovered in 2013). It was put to him that he did not suffer any injury to his right hip in the accident. The plaintiff denied this.
9. The plaintiff was also challenged upon evidence of bruising to his left hip or indeed the right hip.
10. He recalled Dr Rahme advising him that unless he was an elite athlete, he would not recommend surgery.

Plaintiff's evidence

1. In his evidence in chief the plaintiff said that he received physiotherapy two or three times a week for the first six months after the accident. He ceased to receive it after the insurer for the defendant had notified that it would not pay him. He said he was receiving Panadeine Forte and Brufen usually four times a day, but sometimes six and seven times a day for a period after the accident.
2. The plaintiff said that in terms of his emotional state after the accident, he recalled being angry and upset. Money was not coming in and he was concerned about his financial commitments - principally his child care support. The plaintiff indicated that this had the knock-on effect that his former spouse would not permit him to see his daughter. The plaintiff did not however, receive treatment for his emotional state. The plaintiff estimated that his distress had lasted for a period of two years after the accident. He said he still felt sad looking back on this period but says he is proud of where he is now.
3. In terms of his treatment of the physical effects from the accident, he says he has acupuncture once every four or five months and undertakes some stretch yoga in order to strengthen his hands.
4. It was put to the plaintiff that he had received no physiotherapy treatment since 2015. The plaintiff said that he had received physio only last week. After a call was made to show receipts payment for physiotherapy treatment since the accident (documents which should have been, but which were, not produced prior to trial) the last physiotherapy treatment was shown to be 3 June 2015. The plaintiff then said that he had received acupuncture treatment on both hips only last weekend.
5. In July 2016 the plaintiff saw Dr Demdi. The purpose of this medico - legal assessment was to determine the plaintiff's fitness to drive a public bus. The plaintiff thought it was for Uber driving; but it was suggested to the plaintiff that this was erroneous as he started to become an Uber driver earlier in 2016. It was put to the plaintiff in cross-examination that he had received no treatment for any neck injury in the prior 12 months. Dr Demdi had found no spinal injury or abnormalities to the body; and indicated that the plaintiff had informed him that he had taken no medication or suffered any illnesses in the period leading up to the consultation. It was put that the plaintiff had told him that there was nothing wrong with him. In answer to this, the plaintiff said that Dr Demdi was aware from earlier visits, six or seven months before, that he had been taking painkillers and that his hips still hurt.
6. Having received a medical certificate from Dr Demdi, the plaintiff was certified as fit to work as a public bus driver. He was challenged by Senior Counsel for the defendant on his claim that he had missed out on jobs because of his injury. This was a context where, so it was put, the plaintiff said that he was working two jobs and working 40 hours a week; and where pay records from access indicated that the plaintiff had not taken any time off.
7. In respect to his treatment, during an adjournment, the plaintiff produced some receipts of expenses that showed that he had received two massages in 2017 and two massages in 2019. The plaintiff asserted that this was something of an understatement as he did not wish to get into trouble with his private health insurer. At any rate, the receipts showed that since June 2015 the plaintiff had spent $215 on treatment; although the plaintiff also said that he had undertaken stretch yoga.
8. It was put to him that only very occasionally did he go and see someone for massage or acupuncture treatment but this was not referable to his accident. The rest the time he got on with life and worked hard.
9. The plaintiff was cross-examined on the histories that he had given various medical professionals he had seen. He saw Dr Pope only once in 2017. He had not informed Dr Pope that he was working 40 hours a week. He did not mention that matter to either Dr Giblin or Dr Conrad either. The plaintiff said however, that he was only working 25 hours on a regular basis.
10. It was put to him that he may have suffered some whiplash injury but he had recovered within weeks or months. The plaintiff said there was still things that he could not do.

Medical evidence

1. Clinical notes reveal that when the plaintiff saw Dr Vuong on 3 May 2015, he complained of lower neck pain and stiffness and headaches. On examination, there was tenderness of the lower cervical spine. The plaintiff was given massage and heat compression. The defendant's Senior Counsel noted that there was no complaint of back pain, or pain in the hips.
2. Between 3 May and 5 May, a soft collar was applied to the plaintiff's neck. When he saw Dr Habiboglu on 5 May, it was reported that the plaintiff had cervical spine pain, with left hand numbness. His neck was very stiff, tender in the C6-7 region. An MRI scan for the neck was ordered. The plaintiff was prescribed Panadeine Forte.
3. When the plaintiff saw Dr Habiboglu on 7 May, the MRI report and further investigation and management options were discussed.
4. On 7 May 2015 the plaintiff undertook some physiotherapy at Auburn.
5. On 18 May 2015, Dr Habibgoglu reported that the plaintiff complained of clicking sound, with right leg abduction. The defendant said that these symptoms were experienced by the plaintiff before the accident. The plaintiff was advised to continue conservative treatment, gentle exercise and physiotherapy. Brufen and Panadeine Forte tablets were recommended.
6. On 3 June 2015 an x-ray was taken of both his hips and his pelvis. It indicated rounded sclerotic foci, projected over the right superior acetabulum, left inferior pubic ramus and left ischium, which were unchanged compared with 10 October 2013. This was consistent with benign bone islands. There was no fracture or mal alignment seen in the pelvis or hip joints and no other abnormalities were seen.
7. On 4 June 2015 he had an initial consultation with Dr Daniel Rahme, an orthopaedic surgeon. He says he saw him three or four times and was put on a waiting list for surgery in about one year's time. Eventually, he decided against undertaking such surgery: he explained that with no family to support him and an expectation that he may be immobile for six or seven months; and with other financial commitments (such as child support and a car loan), he could not afford to take time off.
8. Dr Rahme, an orthopaedic surgeon, saw the plaintiff on 4 June 2015. Dr Rahme noted that the plaintiff had had a painful click in his right hip 18 months after an injury at work, which had caused him to see Dr Vertzyas (see below) and had improved with two cortisone injections. The plaintiff had informed him that since his accident two weeks ago, he had had a significant increase in pain in both hips, with a painful click also in both hips. His examination was in keeping with a reproduction of the groin and lateral thigh pain with hip flexion and internal rotation bilaterally.
9. On 1 July 2015 the plaintiff received an MRI of both his right and left hips. As to the right hip it was noted that there was a persistent tear of the anterior superior labrum on the right side, with extension towards the direct superior labrum. A mild right-sided hip joint effusion was present; there was no significant cartilage wear. Dr Azimi-Tabrizi opined that there was a degenerative cause, as opposed to an inflammatory sacro-ilititis. As to the left hip, there was an anterosuperior labral tear with extension into the direct superior labrum, similar to the right hip. There was a mild joint effusion present but no significant cartilage wear was identified.
10. Dr Rahme saw the plaintiff again on 13 July 2015; after the plaintiff had had an MRI of both hips. He found there had been some improvement in the sacroiliac joint oedema on the right side. His right hip remained more symptomatic. Dr Rahme suggested he have an arthrotomy and arthroscopy with ostectomy of the femur and pelvis and a labral repair. Dr Rahme was informed of a significant increase in pain in both hips two weeks after the accident; with a painful click in both hips.
11. When Dr Rahme saw the plaintiff the next time on 23 March 2016, the proposed surgery was cancelled due to the plaintiff's symptoms having significantly improved.
12. He was seen again on 29 December 2016 with tingling sensation in both his hands and arms. In his report of 28 July 2017, Dr Habibgoglu reported that the plaintiff was complaining of generalised muscular aches and pains; with neck pain on the right side radiating towards his head and right shoulder/scapular area, pins and needles, numbness in his both hands, lower back/hip pain. He was informed that the plaintiff was attending a psychologist with stress symptoms. At this point the plaintiff's prognosis was guarded.
13. On 5 December 2016 the plaintiff was examined by Dr Giblin, an orthopaedic surgeon. He presented with complaints of right sided neck pain and pain in both hips and provided a past history of a right injury. At the time he reported disabilities as consisting of his neck, which bothered him when looking up for any period of time or quick rotary movements to the right or work above the level of the shoulder. This presented difficulty with craning activities and when he drove a motor vehicle he relied heavily upon his mirrors. His hips also affected him with walking distances, running, going up and down stairs and squatting.
14. In his report Dr Giblin indicated that the plaintiff had informed him that his major problem at work, when he drove, was that he found that his hips got stiff and that his neck bothered him when he looked around. Dr Giblin's opinion and prognosis, was that the plaintiff had sustained a soft tissue neck injury and an aggravation of pre-existing asymptomatic conditions to his hips.
15. Dr Giblin did not, however, anticipate future surgical intervention. In his supplementary report, he remained of that view. He also opined that the plaintiff would need to see his general practitioner twice a year. Dr Giblin was not cross-examined on either of his reports.
16. On 29 December 2016, a CT was performed on the plaintiff's brain. There was no evidence of acute intracranial pathology.
17. On 3 February 2017, the plaintiff had an MRI of his cervical spine. It was concluded that there was a reversal of the normal cervical lordosis, which led to cord contact and slight flattening at C4/5 and C5/6. No other significant abnormality was seen.
18. On 7 February 2017 he was referred (by Dr Habiboglu) to Dr Raoul Pope, a neurosurgeon and spine surgeon, following complaints of neck pain and numbness on the right side of the face and right-hand fingers. Dr Pope provided a report, dated 14 February 2017. The plaintiff reported to him symptoms in the cervicothoracic junction and trapezius region, with some pins and needles going down the arm, affecting all fingers intermittently, worse with activity. No mention was made of the plaintiff's hips. After reviewing a CT scan of his brain and an MRI of the plaintiff's neck, Dr Pope opined that the plaintiff had a musculoskeletal right upper limb symptoms, with perhaps some disc bulge in at C5/6 and C6/, which may be causing a very mild radicular component. As to the plaintiff's complaint of facial numbness and speech, Dr Pope thought that one cause might be a dissection, but thought that would be unlikely in the absence of ongoing neck pain. At this stage, the plaintiff did not need to be seen by him as he did not need any brain surgery or neck surgery.
19. On 19 May 2017 Dr Pope prepared another report following a file review. He not only noted the plaintiff's account of the accident, the subject of this proceeding, but also the plaintiff's complaint, on 27 December 2016, of speech difficulty and numbness in the right face. He generally reiterated his views from his report of 14 February 2017. In this report however, he opined that the disabilities which plaintiff suffered were some facial numbness of the right side and ongoing numbness in the right upper limb in a non-dermatomal distribution there was also some right upper limb discomfort in a non-specific distribution. His final diagnosis was right upper limb arm pain and numbness, perhaps due to discogenic pain, as well is disc bulging, causing a typical radicular symptoms and perhaps a TEA of which symptoms have now passed. His prognosis was favourable.
20. The plaintiff saw Dr Conrad, a surgeon, on 10 July 2017. Dr Conrad was told that the plaintiff did bus driving between 20 to 30 hours per week about two years ago. From about May 2017 he started to work for the Access Sydney Community Transport, doing 25 hours per week. On top of this he was continuing his Uber driving, driving about five hours per week. Altogether he presently worked 30 to 35 hours per week with two jobs of driving. He reported to Dr Conrad that he experienced ongoing pain in his neck, which radiated to his right shoulder and right arms. He also had pain in both hips. On physical examination, Dr Conrad found ongoing pain in his neck. There were some restrictions of movement in both his left and right hips.
21. Dr Conrad opined that the plaintiff sustained a whiplash injury of the neck, and an MRI scan showed some discal damage, causing ongoing pain with extension to the right shoulder and restriction of movements. He said the plaintiff's prognosis was guarded. Like Dr Giblin, he also considered that there was aggravation of pre-existing problems with both hips and that he was continuing to have ongoing pain and restriction of movement due to the labral lesion in both hips. In terms of projected future treatment, Dr Conrad considered he might need medical supervision, physiotherapy and occasional cortisone injection into his hips. The estimated annual cost of his ongoing conservative treatment would be $2000.
22. On 21 January 2019 Dr Giblin prepared a report in response to that of the defendant's expert, Dr Allen. The differences between himself and Dr Allen were that Dr Giblin remained of the view that there was some muscle spasm and pain in the neck. He also considered that the accident had hastened the natural history of his hip condition, forcing the plaintiff to obtain early treatment than would otherwise have happened. He thought that the plaintiff might need a hip replacement, in both right and left hips.

Plaintiff's evidence

1. The plaintiff said that he struggled with jobs for a two or three month period after the accident. He said he was off work for three or four days after the accident. He said he was called by the manager to come in even during this period. He was cross-examined on this aspect of his evidence for his failure to put into evidence any letter from his employer. It was put to him that he did not miss one day off work with his employer. To this the plaintiff responded that sometimes he left work early.
2. As noted above, the plaintiff was cross-examined as to what he was doing outside his workplace on Monday 4 May, if he was not working. It was put that he worked all of that week. The plaintiff said that there were two or three days where he did not work.
3. On or about 7 May 2015, he received a medical certificate from Dr Demdi, certifying that he was unfit until 21 May. The certificate referred to the plaintiff's complaints of pain to the plaintiff's neck, left upper limb and right hip. Nevertheless he worked throughout that period. He accepted that upon his return to work he was paid on the same amount and worked the same hours. The plaintiff accepted that he was paid the same amount but said he worked less hours.
4. It was put that he falsely alleged a loss of earnings of $1000 per week when he was earning $350 per week. The plaintiff said that the figure would have been correct if he was doing extra jobs. He said (whilst having the benefit of a certificate under s 128 of the Evidence Act) that the sum of $17,680 gross, recorded in his 2014 and 2015 tax returns was an accurate reflection of his earnings for those years. He accepted that if he remained there through 2015 until February 2016 he would have received the same earnings.
5. He said he returned to his work, at Ozlem Kebabs, but did no more lifting or packaging. Instead he attended to smaller clerical jobs, such as dealing with invoices and telephone calls. He said he worked normal hours although, on occasion, maybe a couple of hours less. Under cross-examination, the plaintiff was asked what he meant when he said that he was only given 'light work'. He was asked whether that meant he was doing the same job but with no lifting. The plaintiff said that he did not go outside and assist with the delivery of goods. He accepted that he did some lifting but not heavy lifting.
6. His employment with Ozlem Kebabs continued until 25 June 2015 when he had a verbal altercation with a driver. He recalled the driver remonstrating with him for not lifting goods. He recalled not receiving the support of manager. The plaintiff acknowledged that he received the same money from this employer from 2 May, until he left.
7. During cross-examination the plaintiff was shown a letter from his employer, and the plaintiff's own claim form. Neither document made any reference to the plaintiff having to leave work because of any injury associated with the accident.
8. Under cross-examination, the plaintiff was asked whether he would have continued to work there, but for the accident. The plaintiff was equivocal about this - on the one hand he cited language difficulties and an inability to find jobs; but he later said that he did not want to leave at least for another couple of years.
9. He indicated that he was receiving benefits from Centrelink from June 2015 until February 2016.
10. In February 2016, the plaintiff says he started to drive an Uber vehicle. He said he worked seven days a week, working 3 to 6 hours depending upon the circumstances. This job enabled him to go back home more often.
11. When he was asked by his Counsel whether there were additional times where he wished to work, he said that his hips still hurt and he intended to work between eight and nine hours per day but his hip problems restricted him. He indicated that he was motivated to work hard because of his financial obligations.
12. Whilst he worked as an Uber driver, in May 2016, he also commenced some casual bus driving with Access Sydney Community Transport ('Access'). He said he worked five days per week for five hours. He was able to drive short distances (400 to 500 metres).
13. In July 2017 he commenced casual employment with the North Sydney Bus Charter as a coach driver. The plaintiff explained that he was not receiving enough money from his casual job with Access or his Uber driving. He was able to continue to work with Access as he did the 4 am to 9 am work shift. The North Sydney bus job was only one day a week, on Saturdays and was irregular.
14. In September 2018, the plaintiff started a 'Mr Whippy' business on Saturdays and Sundays. On a good day he could earn $600 per day and on a bad day he might earn as little as $100 a day. He indicated that his overheads were modest. At the time he started this venture, he said he effectively left his casual job with North Sydney Bus Charter (although he was still on call).
15. Under cross-examination, it was put that he had never indicated his undertaking a 'Mr Whippy' business until the first day of the trial. The plaintiff said he told his solicitor about this three or four months ago.
16. The plaintiff finished his job with Access in March 2019. Soon after he commenced a traineeship with NSW State Transit ('Sydney Buses'). On 6 May 2019 he undertook some training at Petersham. At the time of the trial, he still had some assessments to undertake but, all going well, he expects to work at least for the next 22 months; whereupon he will be subject to review.
17. In terms of his manual capacity and in comparison with his work situation prior to the accident, he says he cannot do any welding or lifting.
18. Under cross-examination it was generally put to him that since 2016, at least, the plaintiff was able to get better jobs. He had been able to carry on two jobs at the same time for the last three years and the plaintiff accepted that sometimes (but not regularly) he had worked more than 40 hours each week. He also accepted that he was earning three times as much as he was at Ozlem Kebabs.
19. Senior Counsel for the defendant put to the plaintiff that through the course of running his Mr Whippy business, it went without saying that he would need to look down, bend, and reach out to customers. The plaintiff disputed this. Although the hours with Mr Whippy were not regular - plainly business was stronger in the warmer seasons - when he worked, he sometimes received assistance from someone; and he might pay that person between $60-100 whereas he might receive takings of $300. He said that over the 2018-2019 summer period he worked about 60 hours.
20. The plaintiff referred to the claim form he submitted. The list of injuries did not include any reference to his hips.
21. Since the accident in 2015, it was put to the plaintiff that he had followed two alternative, but inconsistent courses of action: first, he was advancing the claim for compensation; whilst secondly, he was getting on with his life. It was put that he falsified his earnings in the claim form; had claimed that he suffered injuries which he didn't suffer and treatment where as he did not have treatment. He only told his own solicitors very recently about his Mr Whippy business.
22. It was put to the plaintiff that there was nothing wrong with him now and that he was just making up a story that he was struggling. The plaintiff denied this; whilst acknowledging that he did not like to ask for assistance. It was put that his neck problem was so mild that he did not even take the next day off from work. It was put that the problems that he had experienced with his right hip were exactly the same as 2013.

Medical evidence

1. In his report of December 2016, Dr Giblin said that the plaintiff remained unfit for work which involve heavy lifting, or work above the level of the shoulder, prolonged standing and walking distances. He repeated that opinion when he saw him on 19 November 2018.
2. Dr Conrad said in his report of 11 July 2017 that he thought the plaintiff would continue to be able to work 30 to 35 hours per week driving, for both Access and his Uber driving; so long as it was for short journeys and did not involve a lot of lifting or bending.
3. Dr Conrad saw the plaintiff again on 19 December 2018. He said he thought the plaintiff remained well motivated, doing 25 hours per week and was able to do this provided he was able to stand or sit at will and not doing a lot of standing, walking, lifting or overhead work.

Tax returns

1. These were tendered for the financial years ended 2012 to 2018. Taxable income for those years was as follows: Financial year ended Taxable income ($) Sources of income [1] 2012 20,172 Eastern Sydney Engineers 2013 Ozlem [2] 2014 17,680 Ozlem 2015 17,637 Ozlem 2016 19,955 Uber driving 2017 38,441 Access Sydney Community Transport, Kelly Services 2018 63,744 Bankstown Labour Hire, Kelly Services, Access Sydney Community Transport 2019 Access Transport, Bankstown Labour Hire, 'Mr Whippy', Sydney Buses

Medical opinion

1. In his report of 19 May 2017, Dr Pope said that if the plaintiff had full dexterity of his right upper limb, that he could see no reason for him not being able to return to his preinjury duties. The plaintiff did not see Dr Pope again.

Future treatment

1. On multiple occasions, he was asked by his Counsel whether he would be willing to undertake surgery for his hip if he could afford it. The plaintiff's answer was somewhat equivocal, but eventually he appeared to assent to this.

Future work capacity

1. In his evidence in chief, the plaintiff did not indicate what his future work aspirations were.

Future commercial care

1. The plaintiff makes no claim for past domestic assistance or care.
2. Dr Conrad considered that should his friends and girlfriend not help with the heavier parts of housework, home and garden maintenance, he might need six hours per week of domestic assistance.
3. The Plaintiff said in his evidence that he lives in a townhouse (and has been for the last 2-3 months). Before then, he lived in Auburn (May 2015 - May 2017) and in a unit in Lidcombe (2017-2018). His residence in Auburn was a home, which featured lawns and gardens. Prior to his accident, he said he looked after the lawns and garden. He says that after the accident he did not look after the lawns or garden: he explained that he could not bend or squat. He also said he has not done much cleaning and, in the first and second years after the accident, had difficulties also with the laundry and cooking. He estimates that he is now at a level capacity of between 60 and 70% in home care; although he cannot lift more than 20 kg.
4. He says if he was able to receive the money, he thinks he would use it to look after lawns and gardens.

Medical opinion

1. Dr Conrad opined that should the plaintiff's friends not be able to assist with the heavy parts of homework, including home and garden maintenance, he might need about six hours per week of homecare assistance.
2. In his first report of 5 December 2016, Dr Giblin said that he thought that domestic assistance was not required under his current circumstances. Without real elaboration, in his report of 19 November 2018, Dr Giblin then said that he thought that any question of domestic assistance was best assessed by an occupational therapist.
3. It was an agreed fact, as between Counsel, that $45 per hour was a reasonable rate for future commercial care.

The Defendant

1. The defendant, born in Turkey, arrived in Australia eight years ago. At the time of the accident, he was employed at Ozlem Kebabs, and had been there since 2011. This, it may be noted, was the same workplace as the plaintiff; although he and the plaintiff worked different shifts. Nevertheless, they also shared accommodation. They had been living with each other for one or one and a half years prior to the accident. After the accident they lived together for a period up to another six months. From his point of view, the shared accommodation situation ceased because the plaintiff said to him that he wanted to live with his girlfriend. As it transpires, the defendant asserted that the plaintiff only wanted to rent the premises. This, according to the defendant, caused a falling out in their friendship.
2. In his evidence in chief the defendant said that the plaintiff worked the evening shift and worked every day prior to the accident. He said that he also saw the plaintiff around the house. Later in cross-examination he accepted that with the work commitments of each other there may have been times where days may pass where, at home, they did not have much occasion to cross each other's paths.
3. On the date of the accident, and after the collision with the rocks, the defendant recalled that the plaintiff was capable of getting out of the car and on the return trip home with other friends (he recalled in his evidence in chief that he, his son and the plaintiff returned to Sydney after the accident in the same vehicle) the plaintiff made no complaint about any pain. The next day, he recalled, the plaintiff and himself went in the plaintiff's car - driven by the plaintiff - back to the scene of the accident. This was one hour away. The defendant did not recall the plaintiff describing any pain on the trip down. At any rate, after the defendant's damaged car was collected it had been taken to their (joint) workplace. This was not far away from the 'Wreckers' premises where the car was sold the next day.
4. On the first business day after the accident (4 May) the defendant and the plaintiff both went to work. After work they took the defendant's damaged car to the wreckers and sold it. At about this time, the defendant recalled in his evidence in chief, a man had asked the defendant and the plaintiff "why don't you make a compensation claim? You might make some money!" Apparently the same man presented a business card to the plaintiff and defendant for a solicitor. That solicitor turned up at the Auburn premises of the plaintiff and defendant within a day or two. The defendant recalls the solicitor talking to the plaintiff.
5. The defendant also recalled that in the working week following the accident, the plaintiff went to work every day; and continued working every day until he left his employment in June 2015.
6. In his evidence in chief, he was asked about his observations of the plaintiff around the home. He could not recall the plaintiff ever complaining of neck pain. After he had stopped work at Ozlem Kebabs, did not complain that he was suffering from neck pain or pain in the hips. The defendant recalled that after the plaintiff's return back to Sydney after his Turkish trip, there was no reference to any pain in his neck, or hips or complaints about bending over or other restrictions.
7. In terms of his observations of the plaintiff at home, they continued to share cleaning and cooking activities. The defendant did not recall the plaintiff complaining that he could not do, or was restricted in doing, any of those activities because of the accident.
8. Under cross-examination the defendant eventually accepted that he had no reason to think, at all, about the events of May 2015 until approached by the defendant's insurer a week, or 10 days, before the trial. It was put that he had no reason to recall, or try to recall, the plaintiff's work activities after the accident, or the plaintiff's complaints about his injuries after the accident.
9. He was cross-examined at some length as to the circumstances in which he and the plaintiff agreed that the defendant's son would join them. It was suggested that after a period of absence from work (from December 2013 to July 2014), it was the plaintiff who was responsible for getting the defendant his job back at Ozlem Kebabs; and that the defendant was grudging in failing to acknowledge this. The point of this, so it appeared to me, was to provide some foundation for the plaintiff to submit that the defendant had a bias against the plaintiff; or was otherwise motivated to lie about what had occurred in the aftermath of the accident. Counsel for the plaintiff did indeed extract from the defendant that the plaintiff had complained about his neck pain in the context of explaining why the plaintiff indicated he was attending hospital. Despite his evidence in chief, the defendant also accepted that the plaintiff told him that he had experienced the pain from the motor accident. He later confirmed that when the solicitors arrived at their premises a few days after the accident both the plaintiff and the defendant's son had complained of neck pain. It appeared also, that the plaintiff and the defendant did go to the police station at Auburn on 7 May 2016 because of advice that they had received from solicitors; to the effect that the police would need to be notified if a compensation claim was to be made.

The plaintiff's hip problems from 2013

1. The defendant relied upon medical reports showing problems with the plaintiff's hips in November and December 2013.
2. Dr Machart, an orthopaedic surgeon, saw the plaintiff on 5 December 2013. He diagnosed a tear in the plaintiff's right labrum. He also referred him to see a specialist hip surgeon, Dr Vertzyas.
3. In a report prepared by Dr Vertzyas, an orthopaedic surgeon, on 16 December 2013 to the plaintiff's general practitioner, Dr Vuong, it was noted that the plaintiff had reported to him a six-month history of pain in his right hip; which pain was localised to the groin; described as a dull ache that was worse with weight-bearing, with associated clicking on flexion of the hip. Dr Vertzyas opined that the plaintiff had an acetabular labral tear of his right hip, which was gradually improving with time. Dr Vertzyas had organised for him to have cortisone injections into his right hip.

The plaintiff's injuries and disabilities

1. The defendant relied upon a report of Dr Allen, a consultant orthopaedic surgeon, who assessed the plaintiff on 15 December 2018. Dr Allen is a fellow of the Royal Australasian College of Surgeons and the Australian Orthopaedic Association. He has special expertise in orthopaedic surgery, joint replacement surgery, shoulder surgery, trauma and fractures.
2. The plaintiff reported that his neck was the most troublesome of his complaints, followed by his right and (then) left hips. He reported experiencing back pain after sitting for more than three hours at which point he has to move to alleviate his symptoms.
3. On examination of his cervical spine, the plaintiff had a full and symmetrical range of motion in all planes. Examination of his upper limbs and shoulder girdles indicated normal power, tone and reflexes. The plaintiff reported some paraesthesia in the distribution of the ulnar nerve on the right side. This was not objectively verifiable. But there was a positive Tinel test at the elbow indicating that symptoms in the right arm may be related to ulnar nerve entrapment pathology at the elbow. The plaintiff was noted to walk with a normal gait. There was a full range of motion in the lumbar spine. In relation to the lower limbs, neurological examination of the lower extremities was normal. There was no contour abnormality in the proximal limb girdles, or the upper extremities. The plaintiff had a normal range of motion of all joints of the upper extremities. There was no tenderness around either hip, but at the extremes of flexion on the right side, the plaintiff reported pain in his groin. A click in both the left and right groin was elicited with rotation in flexion. Dr Allen reviewed the MRI scans performed on the plaintiff's cervical spine (May 2015 and February 2017), right hip (November 2013 and July 2015) and left hip (July 2015).
4. In Dr Allen's assessment, the plaintiff had sustained a soft tissue injury to the cervical spine and continued to have symptoms on the right side of his neck related to this. Such sensory changes as were reported by the plaintiff in his right hand were not verifiable. Dr Allen considered that the most likely explanation was of an unrelated (to the accident) ulnar nerve entrapment at the elbow. There were no symptoms or any residual pathology in either of the plaintiff's shoulders. In relation to the plaintiff's back, there were minor symptoms reported but no demonstrable pathology. In relation to both of the plaintiff's hips, Dr Allen observed there was a long-standing pre-existing disease that had progressed in line with the natural history of the condition. Dr Allen considered that there was a "brief" exacerbation of the plaintiff's symptoms however this had been superseded by the progression of the natural history of the pre-existing disease. Dr Allen considered that the sequelae of the accident had long since settled at although symptoms remained, there was no 'rateable impairment' with respect to the accident. Ongoing symptoms in relation to the hips were related to the progression of unrelated pathology that was constitutional in nature.
5. Dr Allen's diagnosis was that the plaintiff has evidence of intrinsic pathology bilaterally which was unrelated to the accident, though he may have had a temporary exacerbation of symptoms in his hips; but his ongoing symptoms related to the underlying pathology were not related to the accident. There had been a soft tissue injury to the cervical spine, however objective testing failed to demonstrate any residual pathology. There had also been a soft tissue injury to the lumbar spine and although some symptoms had persisted these were not objectively verifiable. There was no evidence of any shoulder injury. In short, the musculoskeletal conditions arising from the accident had resolved and ongoing complaints were either not verifiable or were related to the plaintiff's constitutional disease in his hips.
6. The defendant also put in evidence a report by Dr Alan Home following his assessment of the plaintiff on 22 August 2017. This report was prepared and issued under Part 3.4 of the Act. On his examination, Dr Home found tenderness was elicited to palpation overlying the left-sided paravertebral muscles between C4 and C6. Dr Home also found that the soft tissue injury to the right shoulder was caused by the accident but that this had resolved. There were recurrent symptoms in relation to labral tears of both right and left hip.

The plaintiff's capacity to work

1. Dr Allen considered that the plaintiff was fully capable of gainful employment of the nature which he had previously engaged in. There was no reason related to the accident precluding him from employment. If there were any issues with his employment, they may have related to his hip pathology; which were unrelated to the accident - other than the circumstances there had been a temporary exacerbation of symptoms. These have now settled.

Need for domestic assistance

1. Dr Allen considered that the plaintiff had full capacity for domestic activities; as well as activities of daily living. There was no reason why he could not function normally.

Future treatment

1. Dr Allen commented upon the orthodox and appropriate treatment (physiotherapy and analgesia, with some acupuncture) that the plaintiff had obtained to manage his symptoms. Such ongoing treatment as the plaintiff may require related only to the constitutional problem in his hips which were unrelated to the motor vehicle accident.

Plaintiff's submissions

1. At the conclusion of the evidence, the plaintiff's Counsel submitted a schedule of damages in the following terms: Past out of pocket expenses $7,309.72 ($5,965.47 paid) Future out of pocket expenses $10,000-15,000 Future domestic assistance $87,858 Past economic loss $30,880 Future economic loss & loss of super $125,000
2. The arithmetical basis underlying this schedule was worked out as follows. Past out-of-pocket expenses had been paid pursuant to the defendant insurer's obligation under section 83 of the Act. The sum for future out-of-pocket expenses is predicated upon the plaintiff having several trips to his general practitioner each year, 4 to 6 physiotherapy/acupuncture/massage sessions each year, update scans from time to time, update referral to specialists from time to time regarding the possibility of hip surgery as well as medications.
3. The sum for past economic loss is principally predicated upon the plaintiff's absence from work in the period from 25 June 2015 to February 2016 being a period of 32 weeks. This component was valued at $10,880. The second component under this head of damage was to deal with the period since February 2016, representing the plaintiff's limitations in his work as an Uber driver which, but for his injury, he would have undertaken more fully than he had. It was submitted that because of the effects of the accident, the plaintiff ceased driving early or did not work for as long as the plaintiff wanted; not obtaining full-time bus driving positions; being rejected for positions; and generally undertaking lighter bus driving duties with regular breaks rather than full on driving duties at full hours. It was submitted that a buffer sum of $20,000 should be awarded for this particular component of the claim for past economic loss.
4. As to future economic loss, it was submitted that a buffer sum of $125,000 was appropriate. This represents approximately two years' wages. This was because the plaintiff is a young man with a 37 year working life; which was a long time for the plaintiff to deal with his injuries; including the hips which may require future surgical treatment. It was submitted that the plaintiff had had taken away from him the ability to return to labouring forms of employment. To the extent that he persists with his driving, those duties will be restricted given the need for regular breaks, short distance driving and broken shifts. This will place him at a disadvantage in the open labour market for bus driving. Although the plaintiff has current employment for nearly the next two years, his employment will be periodically reviewed and his current position may not be renewed. Although the plaintiff has developed his own "Mr Whippy" business, this was something of a side business, designed to provide some protection for the plaintiff. Such earnings as he will receive from this business should be disregarded because the of the plaintiff's intention to run the business on the weekends irrespective of his employment capacity during the week.
5. In his closing address, Counsel for the plaintiff submitted that the plaintiff was a witness of truth and that most of the matters upon which he was vigorously cross-examined by the defendant's Senior Counsel had borne out the correctness of what the plaintiff had testified.
6. In relation to the claim for past out-of-pocket expenses, it is agreed that, arithmetically, these should total $7,309.72. Out of this sum, and with reference to section 83 of the Act, the defendant is entitled to a credit of $5,965.47 on account of his insurer's payments to date.
7. Counsel for the plaintiff submitted that, in relation to the plaintiff's injuries and disabilities, this was a "neck and hip" case. In saying this, he noted that there was evidence to suggest injury to the right shoulder from Dr Giblin, although the pain there may likely have been a referral of pain from the plaintiff's injury. He also mentioned that there was some peripheral back injury which he posited was referable to the plaintiff's hip injury. In relation to the plaintiff's neck, Counsel submitted that it was universally considered by the medical professionals that the plaintiff had sustained a soft tissue neck injury. The issue was whether symptoms still remained. In respect to the hip complaint, Counsel for the plaintiff submitted that Dr Giblin's view should be preferred over Dr Allen's view such that it should be found that the exacerbation of a pre-existing problem has remained. In particular, the problems associated with the plaintiff's left hip could not be attributable to any problem that the plaintiff had experienced in 2013.
8. As to the plaintiff's claim for past loss of earning capacity, as noted, the first aspect of the claim is restricted to the period when the plaintiff ceased work, in June 2015, until February 2016 when the plaintiff commenced his Uber driving. The plaintiff says that there was no suggestion in the medical evidence that the plaintiff was capable of doing the sort of heavy labouring work that he was doing prior to the accident in this period. He says that the evidence of the plaintiff's SMS text messages to his employer establishes a causal connection between the injuries associated with the accident and his decision to resign from work in June 2016. The plaintiff's Counsel submitted that there was no suggestion that the plaintiff was fit to return to his pre-accident duties after June 2015.
9. As to the second component of his claim for past loss of earning capacity, Counsel for the plaintiff said that the plaintiff was limited to 5 or 6 hours driving and then only for short distances. Sometimes, the Uber driving would be undertaken seven days a week, but sometimes it might be much less than that: it depended upon how the plaintiff felt. As to this period, I was referred to the plaintiff's Uber earnings in the period from February 2016 to June 2016 (when he commenced casual bus driving with Access Sydney Community Transport of $11,046. Thereafter, the plaintiff experienced similar difficulties with his casual bus driving: problems with his neck and hips restricted his capacity to engage in continuous driving for longer periods. Counsel for the plaintiff submitted that if I was to factor in a loss of superannuation as well, then in addition to compensation for the first component (for the period of June 2015 to February 2016), a buffer award of $20,000, for the remaining period up to the date of trial was appropriate.
10. In relation to the plaintiff's claim for future loss of earning capacity, his Counsel submitted, first, that I should assume that but for the accident, the plaintiff would have continued to work at Ozlem Kebabs; and, secondly, the plaintiff would have continued to have looked to improve his economic circumstances. Because of his difficulties with the English language, it was unlikely that this would have involved engaging in office work. It was noted that the plaintiff was limited, in terms of his training, to manual work. Following the injury, the plaintiff's Counsel submitted, the plaintiff was still trying to improve his circumstances but he had to resort to lighter work and even in this capacity he was restricted. Contrary to the submission of Senior Counsel for the defendant, the plaintiff's Counsel submitted that as I consider the plaintiff's future possibilities, I could not disregard the adverse contingency that developments in technology - principally the prospect of 'driverless' buses (or privatisation of buses) might endanger the plaintiff's current career path. If that was so, the plaintiff, his training was tailored towards manual labouring work; in which he was incapacitated, and would be placed at a very serious disadvantage on the open labour market.
11. In terms of the plaintiff's future out of pocket expenses, the plaintiff submits that Dr Giblin's evidence about a prospective need for future surgery on the plaintiff's hips should be accepted and that although it was unlikely that the plaintiff would undertake such surgery, at least within the next couple of years (whilst he is effectively in a trial period with Sydney Buses), an award should be made to deal with the prospect that he would take such treatment in the future.
12. The plaintiff submits that there is sufficient evidence to sustain an award for future domestic assistance. Although Dr Giblin had urged that an assessment be undertaken by an occupational therapist, that had not happened. Counsel for the plaintiff referred me to authority (Coles Supermarket v Haleluka [2012] NSWCA 343 at [55]) indicating that such evidence was not necessary to validate such claim. Counsel submitted that the claim, on the basis of only two hours, was a modest one. It was submitted that because of the accident, the plaintiff could not mow lawns, was restricted in his capacity to do his laundry and his cooking. It was also submitted that the plaintiff's evidence that he would pay for care if he needed to was not directly challenged on behalf of the plaintiff. As with the claim for future loss of earning capacity, assessment of the amounts for this head of damages could be assessed in accordance with possibilities; not probabilities (Avopiling Pty Ltd v Bosevski [2018] NSWCA 146.)
13. Despite its having been pleaded, the plaintiff's Counsel did not pursue any claim for interest on any damages the plaintiff recovered.

Defendant's submissions

1. The defendant's case is that there is nothing in the plaintiff's claims for various heads of damage. Whilst he accepts that the plaintiff may have sustained a mild soft tissue neck injury, all the treatment (essentially physiotherapy treatment) had been completed by the end of June 2015. He says that the plaintiff had no problem with his back. In relation to his hips, there was a pre-existing 'constitutional' problem, with both hips, identified in 2013; but there was no complaint of a problem with his right hip being caused or exacerbated by the motor accident in the plaintiff's claim form, or the report to the police; nor in the early reports from medical professionals.
2. In relation to loss of earning capacity (past and future), he says that the plaintiff has failed to discharge his onus of establishing that such disability or injuries as the plaintiff has sustained has in fact been, or is likely to be, productive of financial loss. There is no medical evidence to sustain the claim in the subject period from 25 June 2015 until every 2016, in the sense that the plaintiff was unable to work. To the contrary, Dr Pope said in February 2017 that he did not think there was any reason why there was a claim for loss of income. It is insufficient for the plaintiff to say that he lost his job, went away for a period of time before deciding to become a driver; but rather, it was necessary for him to establish that he was incapable of working in his job (such as by leading evidence from his employer at the time), as at the date of the accident, or unable to find suitable alternative employment or occupation. He says that the plaintiff did not explain why he could not have started, as an Uber driver, before February 2016. When he did start work as an Uber driver, there was no basis to say that he could have earned more through that occupation, but for the consequences of the accident, than he did.
3. In relation to the future, although 'buffer' sums may be awarded for future loss of earning capacity, it remains necessary for the plaintiff to establish, for the purposes of the legislation, what assumptions could be made as to the likely course of events but for the accident that the plaintiff might suffer some financial loss at a future time. He says that it is not enough for the plaintiff to say that he has suffered an injury and, although he appears to be able to do his work, he may not be able to do some work in the future. He submitted that there is no evidence that any injuries and disabilities arising from the accident will deteriorate and even if there was medical evidence that cast doubt upon the plaintiff's future capacity to work, such as that of Doctors Giblin or Conrad, there evidence would not be accepted because of the false, or incomplete histories that the plaintiff had provided to them about his work activities since the accident.
4. The defendant submits that there is no evidence of any need for future treatment. The plaintiff had received physiotherapy treatment (for which the defendant's insurer had paid) by July 2015, to such degree that the plaintiff was capable of fulfilling the various 'goals' he had set himself. Since then there was no demonstrable need for treatment; at least arising from the accident. He said that remedial massage in 2019 was not attributed to any back problem caused by the motor accident in 2015. There was no evidence from his employment with Access of any incapacity which caused the plaintiff to lose any days off.
5. The defendant submits that no allowance would be given for future domestic care for a plaintiff who was capable of working 40 hours per week; and five hours a day. Notwithstanding his complaints about his restrictions in lawn mowing or gardening or attending to laundry or cooking duties, the defendant submitted that the plaintiff failed to establish that it would be likely that he would have to pay someone in the future to undertake these activities.
6. Although he says it is not a case where it is ultimately necessary to make credit findings, Senior Counsel for the defendant submitted that the plaintiff was not a witness of truth. He cited the discrepancy between the statement of weekly earnings in his Statement of Particulars ($1,000) and the evidence ($340). He referred also to the plaintiff's trip to Turkey within two months of ceasing work at Ozlem. This had nothing to do with the plaintiff's work injury, but related more to his domestic situation with his family.

The plaintiff

1. The plaintiff was not altogether an impressive witness. I acknowledge that it was not easy for him, being Turkish born without a full grasp of the English language (he obtained a certificate in spoken and written English in 2012); although he received the assistance of an interpreter. Nevertheless, I thought he had sufficient grasp of the English language to understand the defendant's Senior Counsel's direct questions. Very often he gave long winded or rambling explanations or justifications which were often non-responsive to the question that was asked.
2. Some of his answers were implausible. I thought his evidence in response to questions about his attendance outside his workplace after the date of the accident was unsatisfactory. So too was his evidence that he told Dr Demdi that he was taking painkillers when the certificate Dr Demdi supplied him said he was not taking any painkillers. Finally, he asserted that he was able to operate his side-business, of running and operating a 'Mr Whippy' van, without any need to bend, either to perform the work or service his customers.
3. It was also apparent that certain matters of some materiality had not been conveyed by the plaintiff to his instructing solicitors, or to the defendant, before trial on such matters as his overseas trips after the accident, his communications with his employers. Sometimes, his evidence was also internally inconsistent, such as when he was asked whether, but for the accident, he was intending to remain with Ozlem Kebabs. He also struck me as understating the nature of his past friendship with the defendant. Indeed, he became aggressive when asked about his understanding of why the defendant was being called to give evidence and his anticipation of what he might say.
4. There were inaccuracies in what he had told others. By and large, however, generally I consider that he tried to tell the truth. I am cautious about accepting his evidence unless corroborated or where it is consistent with the objective circumstances.

Yusuf Kilic

1. The defendant also gave evidence through an interpreter. It was notable that he gave very different evidence on at least two topics of some significance before and after the lunchtime adjournment at which point he was observed to be in the company of two of his and the plaintiff's mutual friends. One of those topics concerned whether or not the plaintiff had complained to him of neck pain in the immediate aftermath of the accident. This caused in me some doubt about his reliability. Those doubts were also attributable to some strange evidence he gave about what he informed the police on 7 May 2015, three days after the accident. He told the police, amongst other things that the plaintiff had complained of neck muscle pain that then appeared to suggest that he did not understand, nor indeed could interpret, the meaning of the question. Counsel for the plaintiff suggested that the defendant was engaged in an exercise in 'payback' due to a falling out with the plaintiff over arrangements for accommodation within six months of the accident. Counsel referred the defendant to an occasion where, apparently by coincidence, the plaintiff and the defendant met each other at a wharf in Hunters Hill; on which occasion, no words were exchanged. The defendant explained that he was still upset because of what happened about the accommodation situation a few years earlier. Although I have my doubts about the defendant's reliability, I do not go so far as to find that the defendant was dishonest or otherwise fabricated his evidence on account of a falling out that had occurred virtually three and a half years ago.
2. At any rate, given that the issue of liability had fallen away, as at the commencement of the trial, it seems to me that the only really probative value of the defendant's evidence was the extent to which the plaintiff complained of injuries after the accident; in addition, perhaps, to identifying that the plaintiff was capable of driving or at least attending his workplace the next business day after the accident. He also had relevant evidence to give about the plaintiff's capacity with domestic activities. These other matters were capable of being supported by other evidence. Accordingly, I do not think that much turns upon any finding of credibility I would make against the defendant.

The test for causation

1. By s 7B of the Act, where injury has resulted from a blameless motor accident, the injury is deemed to have been caused by the fault of the driver in use of the motor vehicle. But this provision does not, by itself, assist in determining whether any form of harm alleged by a claimant is deemed to have been caused by the fault of the driver, or what is the relevant test for causation. For this, reference is made to the general law, as modified by the Civil Liability Act: Fairall v Hobbs [2017] NSWCA 82 at [112].
2. By sections 5D and 5E of the Civil Liability Act 2002 (NSW), the plaintiff bears the onus of proving, on the balance of probabilities the two elements of causation, namely: 1. that the defendant's negligence was a necessary condition of the occurrence of the harm; and 2. it is appropriate for the scope of the negligent person's liability to extend to the harm so called.
3. No submission was raised by the defendant about this second element.
4. Senior Counsel for the defendant did not suggest that much turned, on the source of liability. His submission was simply that the plaintiff bore the onus of proof of the loss he claimed (T 139.48).

The plaintiff's past and current injuries and disabilities

1. The defendant accepts that the plaintiff sustained a soft tissue neck injury, of some duration, as a result of the accident. The issue is whether that injury has healed or whether the plaintiff has and is likely to continue to have, symptoms of a neck injury into the future. On this issue I find that symptoms of the plaintiff's neck injury are current and will likely occur in the future. I note that Dr Home, whose report the defendant relies upon, found tenderness on the left side of the plaintiff's neck when he examined him in August 2017. There was no suggestion that anything had occurred from the date of the accident, to the date Dr Home examined him, that would have otherwise caused this result. In his report of 31 December 2018, Dr Allen was also somewhat equivocal on the issue. In his summary and assessment, he noted the plaintiff's symptoms of neck injury (right side), before saying that objective testing did not demonstrate residual pathology. He did not, however, assert that the objective testing was inconsistent with the plaintiff's asserted neck symptoms.
2. The plaintiff's evidence is supportive of his complaints of enduring neck injury and pain. Dr Giblin's report, in reply (in December 2018) to Dr Allen's report, found that the plaintiff experienced muscle spasm and pain upon extension of the neck (and considered that he fell into the DRE Cervical category). This was consistent with Dr Pope's earlier findings (in February 2017) of disc bulging at the C5/6 and C6/7. Dr Conrad also referred to discal damage to the neck in each of his reports. Dr Giblin's reports in November 2018 and 21 January 2019 also indicate that the plaintiff continues to periodically suffer muscle spasm and pain, consistent with the disc bulging.
3. The plaintiff has consistently complained of neck injury, in his original claim form, and right through the histories he provided to the medical professionals. He informed Dr Home of his intermittent neck pain, usually on the left side. He informed Dr Allen that it was his neck problem that was the most troublesome of the complaints. This was also consistent with his testimony at trial, where he said that he experiences the on-going problem of pain in the back rear side of his neck; which pain radiated down his right shoulder towards his right hand.
4. In relation to the plaintiff's hips, the issue is similarly narrower than which might have appeared. Although Senior Counsel for the defendant contended that there was no exacerbation of a pre-existing 'constitutional' problem with the plaintiff's hips (apparent from 2013), I consider that this contention is not supported by the defendant's own medical evidence. Dr Allen accepted, at least, that there was exacerbation of the plaintiff's hip injuries. The real issue was how 'brief' the exacerbation (caused by the motor accident) was and whether it had been superseded by the progression of the natural history of the pre-existing degree. Further, I agree with the submission of Counsel for the plaintiff that Dr Rahme's report of 4 June 2015 indicated that, whereas prior to the accident, the plaintiff complained of 'clicking' to the right hip, following the accident, the plaintiff complained of clicking on the left side as well. There was no suggestion that the plaintiff had a labral tear on the left side prior to the motor accident.
5. As the case with his complaint of a neck injury, I consider that the plaintiff has given consistent evidence about his hip injuries, at least since the pain had been identified when he saw his physio on 12 May 2015; only 10 days after the accident. Since then, at least from the time when he saw Dr Habiboglu on 18 May 2015, there were persistent reports of hip pain. I prefer the evidence of Dr Giblin to that of Dr Allen when the former opined that the persistent complaints of hip pain tend to belie the suggestion by the latter that the exacerbation of pre-existing symptoms was only brief.
6. In short, and to reiterate, I consider that the plaintiff's current symptoms are consistent with enduring disabilities stemming from pain in his neck and both hips.

Past out of pocket expenses

1. As indicated, the plaintiff made a claim for past out-of-pocket expenses for the sum of $7,309.72. Out of that amount, the insurer for the defendant had paid the sum of $5,965.97. Pursuant to s 83 of the Act the defendant is entitled to be credited for this amount.
2. In relation to this head of damage, I understood Senior Counsel for the defendant to dispute only that compensation for any treatment, be it physiotherapy or acupuncture or remedial massage after about the middle of 2015 was recoverable. There were only receipts for four instances of remedial massage after June 2015, totalling about $150. I am prepared to accept that some allowance should be given to the plaintiff's evidence that these receipts may not have represented a complete picture of his conservative treatment: the receipts only represented instances where he made a claim on his private health insurer. I accept the sum for past out of pocket expenses that the plaintiff claims.

Principles

1. In assessing damages under this head, the objective is to compensate the injured plaintiff because of the diminution of his earning capacity, to the extent that that impaired capacity is productive of financial loss (Graham v Baker (1961) 106 CLR 340). It is necessary to identify both (a) the capacity that has been lost and (b) what economic consequences have or would probably flow from that loss: Husher v Husher (1999) 197 CLR 143 at [7]-[8].
2. The award is not for what a plaintiff actually loses, but represents a financial evaluation of the worth of what is lost: Ruby v Marsh (1975) 132 CLR 642 at 650. As the New South Wales Court of Appeal explained in State of New South Wales v Moss (2000) 54 NSWLR 536 (per Heydon JA at [71], with whom Mason P (expressly) and Handley JA (indirectly) agreed). "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 …. 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…. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise enquiry and 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" (emphasis supplied)

Analysis

1. The essential matters for the plaintiff to prove are that he establishes: (a) a diminution in his earning capacity; (b) which has been productive of financial loss.
2. Generally, I find that because of the plaintiff's injuries to his neck and hip and, at an earlier time to his right shoulder, caused by the motor vehicle accident, the plaintiff's capacity to work in the manual and labouring tasks at Ozlem Kebabs, was diminished. Those injuries restricted the plaintiff's capacity to load trucks and package goods; and this was the nature of the plaintiff's activities prior to the motor accident. Indeed, I accept his evidence when he said that he did no more lifting or packaging after the accident but attended to smaller clerical jobs such as dealing with invoices and telephone calls. As indicated, the plaintiff's training had been limited to welding and other manual activities. In my view, the real issue is whether this diminution in his earning capacity was actually productive of financial loss.
3. I will deal with this claim taking in turn each of the two components identified by the plaintiff.
4. The first component deals with the claim for past loss of earning capacity in the period from late June 2015, soon after he ceased his employment with Ozlem Kebabs, to February 2016 when the plaintiff took up Uber driving. In this period, the plaintiff was in receipt of Centrelink payments, for at least two weeks, he was also overseas on a trip to Turkey.
5. I disagree with the submission of Senior Counsel for the defendant that medical evidence does not support the claim for compensation for this first component, in respect to the period out of work. I have already found that, generally, the medical evidence has supported the plaintiff's alleged injuries to his neck and hips being caused by the motor accident. Amongst the reports from the medical specialists, Dr Giblin's reports (both of December 2016 - being the closest in time to the accident) determined unfitness for work comprising heavy lifting, or work above the shoulder (such as packing a truck) and rated the impairment of the plaintiff's neck at 5% whole impairment and in the neck at 2% whole impairment. I do not expect that these findings would not also have been applicable (and, indeed may have been worse) in connection with his position from June 2015 to February 2016. I also accept, in particular, that at or about the time that the plaintiff ceased his employment with Ozlem Kebabs in about June 2015, a contributing factor to that decision was the plaintiff's physical incapacity arising from the accident. The plaintiff, in particular, had notified his employer of his neck pain (virtually) contemporaneously with the accident. A record of physiotherapy treatment on 12 May 2015 recorded the plaintiff's pain his neck, back and hips.
6. That the plaintiff had chosen to resign from Ozlem Kebabs does not amount to a break in the chain of causation. In this regard I was referred, by the plaintiff's Counsel, to the High Court's decision in Medlin v State Government Insurance Commission (1995) 182 CLR 1. In that case a university professor went into premature retirement when, following an accident, the effects of his injury significantly hindered his ability to teach. The Court determined that the causal connection between the negligence and the loss of financial capacity was not severed by plaintiff's termination of his employment in that case. I agree that the analogy applies here. I consider that the decision to resign from his employment, itself attributable to the physical restrictions upon the plaintiff's ability to function in his pre-accident capacity, did not sever the causal connection.
7. The defendant contends that it is not simply up to the plaintiff to determine when he would resume his work after the cessation of his employment with Ozlem Kebabs. I agree with that submission, so far as it goes. But save for the two week trip to Turkey, I do not consider that the plaintiff was unduly idle. The defendant's submission, in my view, gives no credence to the plaintiff's evidence of his downward emotional state after the accident; which I regard as being contributed to by the accident. With the restrictions in work, and taking into account the plaintiff's difficulties with language, his narrow qualifications for work and his emotional state (associated with his restrictions in his capacity to do manual labouring work), I would not infer that the plaintiff's period of unemployment was deliberately or unreasonably prolonged. I accept the plaintiff's evidence that, subject to his emotional difficulties over a couple of months and his trip to Turkey, the plaintiff was on the lookout to improve his economic circumstances. Certainly the period since February 2016 showed the plaintiff to be a motivated worker and, subject to the matters I have referred to, would not have thought he was any less motivated in the period the subject of this aspect of his claim but for the emotional difficulties arising from the accident. Further, if there was suitable employment opportunities that were available to the plaintiff in this period of about seven months, the defendant did not identify them. I agree with the submission of the plaintiff's Counsel that in this period of 7 months or so, when on Centrelink, the plaintiff was not 'bludging the system'. In the circumstances I find that the diminution in the plaintiff's capacity to undertake labouring work of the kind he undertook prior to the accident was productive of financial loss in the period in which he was unemployed.
8. Accordingly, I accept the plaintiff's entitlement to the sum of $10,880 in the first component of the plaintiff's claim for lost earning capacity.
9. The second component concerns a diminished capacity to fully partake in driving activities from February 2016. I do not consider that the circumstance that the plaintiff's tax returns show that the plaintiff's earnings have actually increased subsequent to the accident, in comparison with his earnings prior to the accident, is by any means determinative in light of the authorities I have referred to above.
10. I consider that, at least since February 2016, the plaintiff has been not insignificantly hindered in his capacity to exploit his skills in his Uber driving (up to 2017) and buses (thereafter), because of his recurring problems with his neck and hip pain.
11. I also agree with suggestions within the medical evidence that the plaintiff is highly motivated to try to improve his economic circumstances as best he can (it matters not what the particular motives actually are); as exemplified by his conducting a Mr Whippy business; in conjunction with his other driving activities. This means that I think it is more likely than not that the plaintiff would have exploited, if he could have to the full, and to the extent that employment and market conditions permitted him to do so, his Uber driving and thereafter his bus driving. I also find that, but for his need to take breaks and broken shifts, he was likely to have been willing and able to have driven for longer periods of time and for longer distances. The reason for his need to drive short distances, take breaks and broken shifts were the restrictions upon his ability to freely move his neck and the pain associated with his hips; as well as the need to rest his body so as to relieve or alleviate his painful symptoms. In making these findings, I rely upon and accept the evidence of Dr Giblin and Dr Conrad. I note Dr Allen's evidence that the plaintiff should have full capacity for gainful employment; to which he added the rider, that if there was any incapacity for employment it related to 'constitutional' matters concerning his hips. As I have previously noted, I do not accept Dr Allen's view that the plaintiff's problems with his hips are no more than then the "brief" exacerbation of a pre-existing constitutional problem in the plaintiff's hips, but, rather, the symptoms of the hip injuries, exacerbated by the accident, have endured.
12. In terms of the quantum for this second component of his claim for past loss of earning capacity, as was apparent in Moss, it is difficult to estimate just how much more Uber driving or bus driving the plaintiff would have been able to undertake in the period from February 2016 up to trial, but for his physical incapacities. Counsel for the plaintiff submits that a buffer sum for this component should be awarded in the sum of $20,000. The defendant made no submissions as to quantum at all on the contingency that I should reject his argument on this aspect of the claim. In support of this sum, Counsel for the plaintiff said that it should be taken to include the past loss of superannuation and would amount to $100 per week. I do not consider that this suggested quantum for this part of the plaintiff's claim is unreasonable and I therefore award it.
13. It follows that I accept the plaintiff's claim that a sum for past loss of earning capacity should be awarded for $30,800.

Future treatment and out of pocket expenses

1. I reiterate that the plaintiff's remaining disabilities concern his hips and his neck. I consider that at an appropriate time, being when the plaintiff has the opportunity to undertake the period of 8 to 10 weeks off work, there will be a need for him to undertake hip replacements, on both sides. I accept Dr Conrad's uncontradicted evidence that presently this will cost up to $8 - 10,000. I also accept that if given the financial means and time, it is probable that the plaintiff would be willing to undertake this treatment. It would provide him the means to have less restriction upon his driving activities; and thereby enhance the prospects of his longevity as a bus driver and will otherwise enhance his dexterity for manual work. Conceivably, following such surgery, there may also be a need for physiotherapy and rehabilitation.
2. There was no suggestion in the medical evidence that, in so far as the plaintiff's neck is concerned, that anything more than conservative treatment such as periodical acupuncture and analgesia is required.
3. I find that the plaintiff is entitled to future out of pocket expenses in the sum of $15,000.

Statutory provision and principles

1. Section 126 of the Act provides that: 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.
2. Section 126 is a modification, or attempted codification, of the common law principles governing awards of compensation for future economic loss, principally Graham v Baker (1961) 106 CLR 340, which posited that what is being compensated for is the loss of earning capacity. It is not enough that the symptoms of an injury may endure, and perhaps impinge upon performance of work duties. It is how the accident has affected the plaintiff's ability to earn income that is in point: CSR Ltd v Eddy (2005) 226 CLR 1 at [27]; Amaca Pty Ltd v Latz [2018] HCA 22 at [89]-[90]. The task of assessing future loss of earning capacity for a person of young age is notoriously problematic.
3. Section 126 is in the same terms as s 13 of the Civil Liability Act 2002 (NSW). Applying the provision involves the following steps: 1. What were the plaintiff's "most likely future circumstances", but for the injury. Damages are then awarded by reference to these circumstances. 2. What is the percentage probability of the plaintiff's most likely future circumstances occurring in any event? The damages are then adjusted to reflect that percentage possibility.
4. Where the impact of an injury caused by negligence upon the claimant's economic benefit from exercising earning capacity is difficult to determine, it may be appropriate to award a sum by way of 'buffer': Penrith City Council v Parks [2004] NSWCA 201 at [5], [10], [58]. There, the Court of Appeal determined that an equivalent provision to s 126 does not preclude a modest award for the chance that the plaintiff may be disadvantaged in the future. An award of a buffer necessitates a finding that loss of earning capacity will be suffered, and that that has been caused by the negligence. Once a buffer is deployed, for the purposes of s 126(2), the percentage adjustment is taken to be nil.
5. Even if a buffer is awarded, it remains necessary, for the purposes of section 126 of the Act, to identify and state the assumptions about future earning capacity and other events on which such award is based. It is still necessary to compare the economic benefits that the plaintiff derived from exercising earning capacity both before and after an injury. The 'buffer' is awarded because of the difficulty in ascertaining the difference: Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453 per McColl JA (with whom Mason P and Beazley JA agreed) at [84]. Section 126 of the Act is intended to provide some rigour for the calculation before impressionistic analysis intrudes (at [8])
6. In Nominal Defendant v Livaja [2011] NSWCA 121, the Court of Appeal (at [41]) noted the types of assumptions or events the subject of consideration for the purposes of a provision like section 126 include: (a) identification of the skills, training and experience of the plaintiff, as at the date of the accident; (b) the work he or she was undertaking immediately prior to the accident; (c) the likelihood that he or she would have continued in such employment, but for the accident; (d) the possibility that he or she might have obtain promotion or other benefits, but for the accident; (e) the age to which he or she was likely to have worked in that employment; and (f) the possibility that the employment would not have been continuous (followed in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 per Basten JA at [40]).

Analysis

1. I agree with the submission made by Senior Counsel for the defendant that it is not enough for a plaintiff to say that he has suffered an injury and that, although he appears capable of doing some work, he may not be able to perform work in the future. But that is not how the plaintiff advances his claim in this respect.
2. The only assumptions about the plaintiff's most likely future circumstances that the plaintiff's Counsel submitted I should make, for the purposes of s 126(1), were that: 1. the plaintiff would have worked at Ozlem Kebabs; 2. the plaintiff would have been on the look out to improve his circumstances.
3. With reference to the matters identified by Basten JA in Kerr, I also assume that, but for the accident, the plaintiff's qualifications would have been limited to welding and been apposite to manual all labouring work. Having regard to the plaintiff's financial commitments (including childcare payments for his daughter and loan repayments on a car) I consider that he would have looked to increase his weekly earnings above the $340 he received from Ozlem Kebabs. As he grew older (he was only about 29 years of age at the accident), I assume that he would have looked beyond being a warehouse supervisor and sought more remunerative employment. But because of his language difficulties, I assume he would have had some difficulty obtaining office work. With the benefit of hindsight I consider that driving would have offered one alternative and potential course for employment and, in particular, Uber driving might have appealed to the plaintiff because of its flexibility in working hours. I also assume that because of pre-existing hip injuries, the plaintiff was at all times vulnerable to that problem manifesting itself. Once that occurred the plaintiff would have likely have had real difficulty working as a manual labourer much beyond the age of 50.
4. I have indicated my preference for the view that the plaintiff's symptoms in his neck and his hips have endured and I also find that they are not likely to go away; absent some surgical intervention in relation to the hips. Although I have found that, more likely than not, the accident has exacerbated, to some degree, the constitutional problem with the plaintiff's hips, I am mindful that not all of the further symptoms associated with the hips in the future are likely to be solely attributed to the motor accident (Seltsam v Ghaleb [2005] NSWCA 208 at [103]-[105] and DC v State of New South Wales [2016] NSWCA 198 per Ward JA at [354]-355] (with whom Sackville JA agreed on this point).
5. I have also indicated that if given the time and opportunity and financial means for doing so, the plaintiff would be likely to undertake hip replacement treatment; but I do not think that that will occur at least until his initial period with Sydney Buses has elapsed in a little less than two years' time. I expect that, at least for about 3 or 4 years, and assuming he remains with Sydney Buses, because of his hips, the plaintiff will continue with his need for broken shifts and driving of short distances.
6. I also find that on the basis that there remains some bulging in the neck the plaintiff will be subject to periodical muscle spasm such that his next symptoms will periodically flare and this may continue to hider or impede, to some degree, his driving. On the assumption that the plaintiff will only receive conservative treatment to deal with a neck, his problems may affect his capacity to lift things above the shoulders. For a young man whose qualifications (other than his driving qualifications) are principally those of a labourer, his prospects of engaging in continuous, full-time manual or labouring work are remote. To this extent, should anything occur in the bus driving industry, such as the onset of driverless buses or a reduction in volume of drivers through privatisation, unless the plaintiff is capable of retraining, is prospects of obtaining employment on the open labour market are bleak.
7. That said, because of the allowance I have given to meet the prospect that the plaintiff will undertake hip replacement treatment, probably within the next 3 to 4 years, should that succeed, and assuming further that the plaintiff's neck symptoms are periodically and effectively treated, I expect that the plaintiff's prospects of increasing his capacity to drive buses, in terms of working hours and distances will improve.
8. I accept that a buffer sum is appropriate. Factoring in the above assumptions and projected likely circumstances, including the plaintiff's age (with much working life ordinarily to come), and the likelihood of surgical treatment to reduce the plaintiff's physical restrictions, I consider that a buffer sum of $60,000 is an appropriate allowance for this head of damage. For the purposes of s 126(2), there is a nil adjustment.

Future commercial care

1. In Miller v Galderisi [2009] NSWCA 353, the New South Wales Court of Appeal said (at [18]): There is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases.
2. As Hodgson JA said in Matchan v Lyons [2003] NSWCA 384 (at [4]), there may be compensation for the contingency that past care may not be given (by family or other persons closely associated with a claimant) in the way it had been provided in the future.
3. In Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, the Court of Appeal determined (at [127]-[138]) that the predictive exercise set out in s 13 of the Civil Liability Act (an analogue to s 127 of the Act) extends also to claims for future attendant care and, further, that the principles from Malec v JC Hutton apply to this head of damage: namely, that factors other than the accident may necessitate such assistance.
4. In Miller the Court of Appeal further emphasised (at [24]) that if allowance was to be made for the provision of domestic assistance on a commercial basis at some future point in time, it would require the plaintiff's particular circumstances to be taken into account. The Court said that it was inappropriate to pluck a figure out of the air because there was a remote, though not entirely fanciful, chance of a need for commercial domestic assistance in the future. What is required is (likely or probable) demonstrable need that the plaintiff will need to pay for commercial care services caused by the accident.

Analysis

1. The plaintiff has made no claim for past domestic assistance. There was very little evidence as to what assistance could be rendered by others to the plaintiff, now or in the future.
2. Having heard the plaintiff's limited evidence as to his current domestic restrictions, I consider that the main physical problem impeding domestic activities are the plaintiff's hips and, to a much lesser degree, his neck, which has been conservatively treated up to now and effectively so. Assuming, as I do, that this conservative treatment for his neck will continue to manage the difficulties and that the plaintiff will eventually undertake hip replacement surgery, probably within the next 3 to 4 years, I am not persuaded that there is likely to be a demonstrable need to pay for commercial assistance caused by the accident.

SUMMARY & ORDERS

1. For the above reasons, I find that: 1. Past out of pocket expenses $7,309.72 less $5,965.47 (s 83 payments) $1,344.25 1. Future out of pocket expenses $15,000 2. Past loss of earning capacity $30,880 3. Future loss of earning capacity $60,000 4. Future domestic assistance $0
2. I make the following orders: 1. Judgment for the plaintiff for $107,224. 2. The defendant is to pay the plaintiff's costs. 3. Liberty to apply on 7 days' notice. 4. Exhibits may be returned after 28 days.
3. Should either party wish to invoke the liberty granted to apply he should send to my Associate written submissions (comprising no more than 3 pages) with any supporting documentation. Thereafter the party who wishes to oppose the application has a period of a further 5 days to send my Associate responsive submissions (comprising no more than 3 pages) with supporting documentation. Any such application will thereafter be determined on the papers.

Endnotes

1. This excludes Centrelink payments.
2. The plaintiff commenced with Ozlem on 6 January 2013 and made $7480 in the period of 25 weeks.

Amendments 11 June 2019 - Redaction of address. 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: 11 June 2019