Saleh v The Nominal Defendant

Saleh v The Nominal Defendant - [2009] NSWDC 1 - NSWDC 2009 case summary — Zoe

[190]

Dr Guirgis re-assessed the Plaintiff again on 21 November 2007 at the request of the Plaintiff's general practitioner. At that time Dr Guirgis noted that the Plaintiff was still troubled by right ankle problems which included reduced walking and running tolerance, an inability to jump and the need to take care with weight bearing. He noted that the two fixation screws that had been inserted to reduce the ankle fracture were still in situ. He also noted the presence of continued mild intermittent complaints in the neck and thoraco-lumbar spine which had worsened over time. He diagnosed this as being due to musculo-ligamentous sprains and strains with possible intervertebral disc involvement. He also noted some abnormal movement restrictions in abduction, adduction, flexion, extension and rotation of the glenohumeral component of the left shoulder joint. 355. As already noted, Dr Wan's rehabilitation report dated 28 June 2007 was in part based on a review of unspecified supporting documentation relating to the Plaintiff which was not identified. This would ordinarily preclude a transparent evaluation of some of the assumptions within such a report which tends to obscure what history Dr Wan actually obtained from the Plaintiff as distinct from making assumptions from the material provided to him : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. That said, in this specific instance I believe there is a sufficiently broad general climate of similarity between the nature of the Plaintiff's symptoms as recorded by Dr Wan and the problems described by the Plaintiff in his evidence in these proceedings for me to place reliance on Dr Wan's assessment of the Plaintiff's ongoing problems : Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 per Samuels JA at 509 [F - G]. 356. Dr Wan found that the Plaintiff's physical injuries had stabilised with the result that the Plaintiff has been left with permanent impairment to his right ankle but without severe gait derangement. Logically, this must mean that Dr Wan had found that there was a degree of gait derangement present in the Plaintiff's right ankle. Dr Wan found there was tenderness and impairment to the lumbar and cervical spines. Dr Wan found no rateable impairment to the left clavicle which I take to mean there was a degree of impairment but it was not rateable according to the MAS guidelines. Those guidelines and the assessments that arise from them are not relevant to the task of assessing damages in this case.

[217]

On 13 September 2004 Dr Nguyen of the Liverpool Brain Injury Unit arranged neuropsychological testing of the Plaintiff. These tests were initially delayed due to the Plaintiff's unspecified ill-health however the clinical neuropsychologist within that unit, Mr Delaney, ultimately carried these tests out over the course of two occasions, namely, 24 September 2004 and 15 October 2004. The correspondence and notes within the notes kept by the Brain Injury Unit made it clear to the Plaintiff's solicitor that this neuropsychological assessment was for clinical purposes and not for medico-legal purposes. It appears that the Plaintiff's solicitor had asked for the assessment because there was no funding available for an external assessment. Mr Delaney noted significant cognitive weaknesses and concluded that some aspects of the Plaintiff's presentation related to longstanding ADHD and other aspects were of post-traumatic origin, namely the frontal lobe pathology: "Mr. Mahony is a 22-year-old man who reportedly sustained a severe traumatic brain injury in a motor vehicle accident approximately four years prior to this assessment. Details of his initial clinical presentation and management and the findings of MRI brain scans are supportive of a diagnosis of severe traumatic brain injury. The neuropsychological profile is indicative of weaknesses in verbal attention span, working memory, flexible thinking, thinking speed, new learning and memory functioning, visuoconstructional abilities, and higher order executive abilities including concept formation, complex problem solving, impulse control and self monitoring. In addition, Mr. Mahony is reporting severe symptoms of depression and anxiety. There is also a history of aggressive behaviour. Mr. Mahony describes this as an exacerbation of a premorbid trait. The history, in combination with his performance on this assessment, indicates that Mr. Mahony probably had premorbid verbal earning difficulties. Aspects of the history are also suggestive of longstanding symptoms of attention deficit hyperactivity disorder. As described, Mr. Mahony's effort fluctuated throughout the course of this assessment and was noticeably poor when cognitively challenged. The extent to which motivation was underlying Mr. Mahony's fluctuating effort remains questionable, but was not assessed formally in great detail as this assessment was conducted for clinical purposes. Based upon the overall quality of his performance, it is probable that Mr. Mahony's fluctuating effort was mostly, if not entirely, attributable to a fundamental difficulty in harnessing his cognitive resources to apply himself to tasks . An inability to efficiently apply one's cognitive resources and effort to tasks is not an uncommon sequelae of a severe traumatic brain injury with frontal lobe pathology."

Parties

Applicant/Plaintiff:

Saleh

Respondent/Defendant:

The Nominal Defendant

Cases Cited (23)

CITATION: Saleh v The Nominal Defendant [2009] NSWDC 1

Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 Fazlic v Milingimbi Community Inc [1982] HCA 3 at [12]; (1982) 150 CLR 345 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Ghunaim v Bart [2004] NSWCA 28 Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor [2007] HCA 15; (2007) 229 CLR 498 Harrison v Nominal Defendant (1975) ALR 680 CASES CITED: Jones v Dunkel [1959] HCA 65; (1959) 101 CLR 298 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Nominal Defendant v Gardikiotis [1996] HCA 56; (1996) 186 CLR 49 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Russell v Rail Infrastructure Corporation [2007] NSWSC 447 Willetts v Futcher [2005] HCA 47; (2005) 221 CLR 627 Wynn v NSW Ministerial Corporation [1995] HCA 40; (1995) 184 CLR 485 Nominal Defendant v Swift [2007] NSWCA 56

Due to the absence of any relevant recollection on the Plaintiff's part it becomes necessary to consider the available evidence of the witnesses who were at the scene. The observations of those witnesses were limited in nature. It is also necessary to consider the products of other investigations and the analyses undertaken by the respective accident reconstruction experts who provided reports and who were called as witnesses by the respective parties. I consider that I should approach the analysis of the expert opinions of the crash reconstruction experts with a good deal of caution because, in this case, on analysis it is evident that those opinions involve much conjecture: Fox v Percy [2003] HCA 22 per Callinan J at [149]; (2003) 214 CLR 118, at pages 166 to 168.

In my view there are a number of difficulties with the first of Mr Keramidas' speculative conclusions in that it is not apparent from the face of the report as to which of the two scenarios outlined by Mr Jaouhar was being considered by Mr Keramidas to be a virtual impossibility. Mr Keramidas had two scenarios available to him for his analysis. These were first, the short statement of Mr Jaouhar that was recorded in the notebook of Senior Constable Cassidy which is referred on page 12 of Exhibit "7' and secondly, the 16 point summary of the untendered evidence given by Mr Jaouhar in the Local Court proceedings as summarised by Mr Keramidas including the incorporation of some selected and incomplete quotes from the evidence given by Mr Jaouhar in the April 2001 Local Court proceedings, as was set out on pages 12 and 13 of exhibit "7". In this regard: (a) If the relevant scenario considered by Mr Keramidas is the one set out in short statement Mr Jaouhar gave to Senior Constable Cassidy then I would reject Mr Keramidas' first conclusion because I prefer the collision dynamics analysis as was explained by Mr Johnstone wherein he agreed it was possible that rear wheel lock occurred due to handbrake application followed by sideways skidding into the pole. I would prefer this rational explanation rather than a blanket negation of Mr Johnstone's description as being virtually impossible because Mr Johnstone's description has a grounding in the facts described by Mr Jaouhar. I would also reject Mr Keramidas' first conclusion because it does not accord with my own view of the inherent plausibility of Mr Jaouhar's quoted statement as explained by Mr Johnstone and which is inconsistent with Mr Keramidas' view that such a scenario was "virtually impossible" to have taken place. (b) If the relevant scenario considered by Mr Keramidas in support of his first conclusion was his 16 point summary of Mr Jaouhar's evidence given in the Local Court proceedings I would also reject that conclusion because the basis for it is not found in the evidence in these proceedings and it therefore remains opaque to analysis. This is so because the summary prepared by Mr Keramidas cannot be evaluated for accuracy, emphasis or appropriateness. This position arises because the Defendant elected not to tender the primary source for that summary, namely, the evidence given by Mr Jaouhar in the Local Court proceedings. In the absence of an agreement between the parties the summary cannot therefore be evaluated against the actual evidence given. I was not informed of any agreement of the parties to the effect that Mr Keramidas' summary of the evidence given in the Local Court proceedings by Mr Jaouhar was accurate. On the contrary, the summarised concession that Mr Jaouhar did not see the Plaintiff pull the handbrake - item 14 of Mr Keramidas' summary - is inconsistent with the evidence given by Mr Jaouhar to the effect that the Plaintiff used the handbrake. In these circumstances, absent the tender of the primary source, I am not prepared to accept a summary that is opaque to analysis : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. 117. I am therefore left in the unsatisfactory position of having to speculate on the basis for the first conclusion in the report of Mr Keramidas. Further, the detail of Mr Keramidas' summary items 8, 9, 10 and 13 did not accord with the evidence which Mr Jaouhar gave in these proceedings. The Defendant did not seek to explore or reconcile the detail of these differences by cross-examining Mr Jaouhar on the areas of variance. In my view this state of the evidence results in an insurmountable forensic problem which precludes me from placing reliance upon or accepting the first conclusion in the report of Mr Keramidas.

(1962) 108 CLR 541

(1982) 150 CLR 345

(2003) 214 CLR 118

(2007) 229 CLR 498

(1959) 101 CLR 298

(2001) 52 NSWLR 705

(1996) 186 CLR 49

(2005) 221 CLR 627

(1995) 184 CLR 485

(1984) 2 NSWLR 505

[1982] HCA 3

[2004] NSWCA 28