[1961] HCA 48
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
243 CLR 361
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission (1995) 182 CLR 1
[1995] HCA 5
Mutual Community General Insurance Pty Ltd v Khatchmanian (2013) ANZ Insurance cases 61-974
Source
Original judgment source is linked above.
Catchwords
[1961] HCA 48
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11243 CLR 361
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission (1995) 182 CLR 1[1995] HCA 5
Mutual Community General Insurance Pty Ltd v Khatchmanian (2013) ANZ Insurance cases 61-974
Judgment (18 paragraphs)
[1]
Background
The plaintiff was born on the 2nd March 1972. He was 40 years of age at the date of the motor vehicle accident and he is now 45 years of age. He grew up in Lebanon and did not complete secondary schooling there. He worked as a spray-painter in Lebanon. Between 1990 and 1994 the plaintiff operated his own spray-painting business whilst living at home with his parents.
On 11 July 1994 the plaintiff first came to Australia on a holiday to visit his brother. On 14 October 1994 he was granted permission to remain in Australia. Between 1994 and 2000 when the plaintiff applied for refugee status and while he was resident in Australia, he met and married his wife Mona and worked as a spray painter. Once engaged to Mona, the plaintiff was permitted to remain here through several grants of permission. He was granted a permanency visa on 24 October 2000.
From July 1999 until early 2000 the plaintiff worked part-time as a spray-painter for Ken Stokes Smash Repairs (Exhibit 6). During that period his son Mazen, who is now 17 years of age and his daughter Mariam, who is now 16 years of age, were born.
Between 29 October 2002 and 19 November 2002 the plaintiff worked as a labourer for three weeks for Toll.
Between 12 November 2002 and 2004 (Transcript, day 1, page 60, line 5) the plaintiff worked full-time for Tip Top Bakery. The evidence is inconsistent as to whether the end date was 2003 or 2004.
The plaintiff has been receiving Centrelink payments ever since terminating his employment with Tip Top Bakery. Initially he received a Disability Pension and at some time his payments converted to Newstart but on the basis that he was not required to work. He qualified for Centrelink payments because of a permanent anal fistula condition.
On 4 October 2007 the plaintiff's third child, a daughter named Sera who is now 10 years of age was born.
The plaintiff claims, and the second defendant disputes, that between 2008 and 2009 he was employed on a casual basis by SGC Joinery Pty Ltd as a carpenter/joiner by the proprietor of that business Mr Chadi Al-Tawil.
On 29 June 2010 the plaintiff's fourth child, a daughter named Selena, who is now 7 years of age was born.
On 28 December 2010 the plaintiff attained a Certificate II Security Operations from Sydney Training Academy Pty Ltd.
On 19 March 2011 the plaintiff attained a First Aid Certificate from Sydney Training Academy Pty Ltd.
In April 2011 the plaintiff was issued with a Queensland Security Licence.
On 5 May 2011 the plaintiff made application for a Security Licence to the New South Wales Police Force, which licence was issued in July 2011 and the plaintiff performed some work as a security guard on a casual basis at football games.
Between about November 2011 and January 2012 the plaintiff remained in Lebanon. The evidence is not precise as to the dates or length of that stay.
On the plaintiff's case in early March 2012 he was offered and accepted full-time employment as a carpenter/joiner with SGC Joinery Pty Ltd of 8-20 Carlingford Rd, Sefton New South Wales by Chadi Al-Tawil to commence on 2 April 2012 at an hourly rate of $30 and an overtime rate of $40. This is hotly contested by the second defendant.
The subject motor vehicle collision occurred on the 20 March 2012.
On 22 March 2012, the second day after the collision, Mona and the couple's four children travelled to Lebanon to visit family and did not return until 1 June 2012.
The plaintiff has not worked since the motor vehicle accident.
For convenience, and meaning no discourtesy, I refer to the plaintiff's wife, Mrs Mona Dib as Mona.
At the time of the motor vehicle accident the plaintiff lived in the matrimonial home at 20 Mons St, Granville with Mona and their children.
The plaintiff and his wife Mona gave evidence that her role in the family included handling insurance claims, dealings with lawyers, attending specialist medical appointments with the plaintiff and other matters requiring her better English language and literacy skills.
Mona was born and educated in Australia.
The plaintiff and Mona maintained separate bank accounts.
Mona displayed far better recollection of events in the witness box than did the plaintiff. Each of the plaintiff and Mona gave evidence that he suffered significant forgetfulness. They timed the onset of that condition with the motor vehicle collision.
A fundamental plank of the second defendant's case upon which it submits the court should find that the collision was staged and that the plaintiff's claims for personal injury damages is fraudulently brought is that the evidence of the plaintiff and witnesses in the plaintiff case was so lacking in credit that the court will not accept the plaintiff's evidence that the collision was accidental. In order to examine that proposition it is required to consider the credit and reliability of each of those witnesses. Messrs' Baranowski and Bessounian were significantly cross-examined by the second defendant regarding their relationship with each other including a history of motor vehicle collisions and motor vehicle repair and personal injury claims on insurers and their relationships with the plaintiff and with the first defendant. The plaintiff, Mona, his sister Rola Dib and his brother Mohamed Dib gave evidence in relation to the plaintiff's claim for damages. Only the plaintiff gave oral factual evidence of the motor vehicle collision.
These reasons approach some topics of evidence separately with a view to assessing reliability and credit of witnesses as well as to particular passages of evidence of witnesses.
[2]
The Plaintiff's Anal Fistula
The plaintiff's anal fistula condition is of significance in the case. This is because whereas the plaintiff claims that but for the motor vehicle accident he would have worked full-time to retirement, he had received Centrelink payments on account of his fistula condition and not been employed to any significant extent for 8 years preceding the motor vehicle accident.
Medical treatment for his anal fistula included initially a significant surgery cutting that sensitive part of his anatomy and over the pre-collision period until 12 March 2012, just before the motor vehicle accident, he underwent a total of ten surgeries to drain pus from the fistula.
Each of the plaintiff and Mona initially said that preceding the motor vehicle accident, the plaintiff's fistula condition did not significantly interfere with his capacities. They gave the following evidence in that regard:
PLAINTIFF IN CHIEF
Q. During those years, you were continuously in receipt of Centrelink benefits from the Commonwealth Department of Social Security?
A. INTERPRETER: Yes.
Q. Up until March of 2012, had you ever had any prior motor vehicle accidents or work accidents or accidents of any significance, giving rise to injury?
A. INTERPRETER: Not.
Q. You, of course, had had the serious fistula condition for which you had had numerous surgical procedures? Is that so?
A. INTERPRETER: Yes.
Q. By March of 2012, the month of the subject motor vehicle accident in these proceedings, by that time how were you managing the fistula condition?
A. INTERPRETER: It was good.
MONA
Q. … Now, of course, at some earlier time after your marriage, Mr Dib had been diagnosed with the anal fistula.
A. That's right.
Q. Do you recall when he was diagnosed with that complaint?
A. I believe it was also - it'd be about 2003, late 2003.
Q. Did that appear to be of any great trouble to him?
A. No, he - the first operation was a pretty deep cut, so obviously the first time and that it was a shock. You would get shocked when you find out you've got something like this and that. But he - he was fine. Initially, he did the operation and then he recovered from it. Like it didn't change anything. He didn't get into depression, you know, he was normal. He just - he took the required time to let the wound heal and then he was up and going again. So, it didn't really affect him in any way.
Mona showed reluctance conceding that the plaintiff remained on Centrelink payments on account of the fistula for the whole of the period of 8 years prior to the motor vehicle accident and continuing at the date of the hearing. Cross-examination exposed her concession that in fact the only interruption was for a period of 1 - 1 ½ years during 2014 - 2015 when Centrelink payments ceased to both the plaintiff and to Mona whilst she was audited on account of her failure to declare that she was operating her then business as a licenced conveyancer.
During cross-examination Mona gave the following evidence which conceded the plaintiff's incapacity for work because of his anal fistula condition:
Q. What were the different things, if there were different things, which meant that your husband was disabled from working?
A. Initially it was because of the fistula. When he did the big operation, they took a whole chunk out of his bottom, and it took some time to recover from that. Then he had the regular tubes at hospital to get that drained. So we used that. That was his reasoning to give him a chance to recover from that.
Q. That was initially why he was disabled and unable to work. Why was he later on a disability pension? What was wrong with him?
A. It was always the fistula. After the accident it was a different story.
Q. We've got some evidence that Mr Dib was on a disability pension as at the date of the accident. So right up until the very moment of the accident, he was on a disability pension, by the looks of things. Do you agree?
A. Yes.
Q. That disability pension was being paid to him on the basis that he was incapable of working, wasn't it?
A. Yes.
Q. Because he was so badly troubled with the anal fistula.
A. Yes.
Q. That had been something which had led to him having at least ten operations on his rectum. Correct?
A. Yes.
Q. He had been in and out of hospitals seeking surgical repair of the fistula.
A. They would call him in to drain the pus and to change the..(not transcribable)..that they kept in there.
Q. I think you're agreeing with me. He had been in and out of hospitals looking for a surgical repair of the fistula.
A. It can't be repaired. He is aware of that. So he could go in and out, and there were about ten times that he went in there, but we knew it could never be fully repaired.
Q. It was a long-term serious problem for him.
A. Yes.
Q. Which, at the very moment of the accident, had meant that he was disabled and incapable of working, correct?
A. He was going to - he was actively looking for work. He wanted to find something.
Q. Was he getting a disability pension or not?
A. He was receiving a pension, yes.
Q. Right as at the moment of the accident, for some long time, he'd been disabled from being able to work by the anal fistula, correct?
A. Correct.
Q. And it was a condition, which as you've just said, was one where it was just not going to be possible to correct it?
A. No. And he was fine with that. So, he's, you know - he got used to it.
Q. He's got it for the rest of his life.
A. Yes.
The plaintiff's evidence, as he put it at one point, that he was physically "100%" prior to the accident flares strikingly against Mona's oral evidence in cross-examination, his own evidence of having been on the disability pension and Newstart from 2003 due to his suffering from his anal fistula and clinical medical records. When in cross-examination it was put to him that it was untrue that he was "100%" physically prior to the motor vehicle accident, the plaintiff responded that he did not have his present pain and that even with his fistula condition he was "good". He said that he did not recall Dr Abdalla advising him on 27 January 2012 that his fistula was not improving. When he was challenged that he had told doctors that the fistula caused him a lot of pain, the plaintiff gave the following evidence:
Q. You see, the anal fistula had put you on the disability pension, hadn't it?
A. INTERPRETER: Yes, maybe.
Q. Maybe? What else had put you on the disability pension? Was there some other reason?
A. INTERPRETER: They haven't given me the pension.
Q. I want to read to you from some of the reports. The doctors who treated you for the fistula said you'd complained that it caused you a lot of pain. Would you accept that?
A. INTERPRETER: Fistula didn't make any big pain.
Q. The document I'm looking at suggests the pain was so bad that you were given oral narcotic analgesic medication. Would that be right?
A. INTERPRETER: They didn't give me sleeping pills for the fistula.
The clinical notes of the plaintiff's treating general practitioner Dr Abdalla (Exhibit T, p 106-120) show regular treatment for the plaintiff's fistula including referral for specialist treatment and correspondence with Centrelink. The Cumberland Hospital clinical notes from the plaintiff's admission to Auburn and subsequently Paringa at Cumberland Hospital between 11 and 13 July 2012 (Exhibit T, p 121-178) include (at p 150) the following record:
Patient well apart from fistula.
Fistula:
Affects a lot of things
Sometimes a lot of pain
Blood and yellow stuff comes out
10 years
The same over a long period".
It is common ground that the plaintiff underwent his tenth surgery for his fistula on 12 March 2012. The objective evidence of Centrelink payments for the period of 8 years preceding the motor vehicle accident, the sparsity of employment in his historical factual history, the nature of his anal fistula ailment requiring repeated medical care and surgery on 10 occasions, that whilst receiving Newstart benefits he was relieved of the obligation to find work because of his condition, the preferred evidentiary value of the objective clinical medical history evidence and the obvious inconsistencies in the oral evidence of the plaintiff and of Mona parts of which are quoted above; overwhelmingly point to the conclusion that despite claims in oral evidence to the contrary, the plaintiff was unfit for regular employment at the date of the motor vehicle collision, which diminished earning capacity continued according to the permanence of his anal fistula condition.
[3]
Employment with SGC Joinery
A pillar of the plaintiff's claim for economic loss is his claim that about a month prior to the motor vehicle accident on the 20th March 2012, he accepted an offer of full-time employment from Mr Al-Tawil to commence on 2 April 2012. The plaintiff relies on a document tendered by the second defendant (Exhibit 3) being a letter on the letterhead SGC Joinery dated 5 March 2012 as containing that offer. The plaintiff Schedule of Damages quantified his economic loss claim at $673,000.
The plaintiff claimed that between 2008 and 2009 he worked in a business called SCG Joinery Pty Ltd, the proprietor of which business was Mr Chadi Al-Tawil. He said that he met Mr Al-Tawil through a cousin. His evidence was that he was employed as a carpenter/joiner. He described his work as manufacturing kitchens within the factory, driving the truck which delivered them and as one of two workers, installing those kitchens at the client's home, for the lower cabinets, levelling them to the floor and then installing them and for the wall cabinets holding them to the wall with the other worker and screwing them to the wall. He said that the work was part time and that he was called in when a worker was not available and when the level of work required it.
The plaintiff said he had been required to work on any of the days Monday to Saturday of the week and that he worked 1, 2 or no days per week:
Q. What hours did you work?
INTERPRETER: Sometimes one day a week, sometimes two days a week, sometimes nothing.
Q. When you are paid, were you paid in your name?
INTERPRETER: He said he used to give it to him on his hand because he wasn't permanent. He told him when you are permanent then I'll pay you through the account.
WATSON
Q. Are you say you get paid cash in the hand?
A. INTERPRETER: Yes.
When asked whether he had told Centrelink about the employment the plaintiff's answer was that he told them "sometimes": Transcript day 2 page 79, line 19. He did not receive group certificates from SGC Joinery. He said that he worked with them "for a short period not a long time": Transcript day 2, page 79, line 22. The factory was in Sefton but he could not recall the street name.
Mr Al-Tawil's evidence was that prior to March 2012 the plaintiff worked for a total of only about 9 to 11 days whilst another employee was on holidays.
Mr Al-Tawil, the signatory of the 5 March 2012 letter, gave evidence on day four of the hearing. In cross-examination the second defendant put to him that he did not make an offer to the plaintiff on or about the 5th March 2012 and that the letter was subsequently created by him on the plaintiff's request in 2014. Mr Al-Tawil insisted that the letter and the offer of employment were genuine.
The 5 March 2012 letter is signed by Mr Al-Tawil (spelt in the letter AlTawil). It is on letterhead "SGC Joinery". In the top right hand corner is a box containing contact details of Sydney Granite Centre. SGC Joinery Pty Ltd was a company first registered by Mr Al-Tawil on 2 April 2012, that is approximately one month after the date of the letter.
In cross-examination Mr Al-Tawil detailed that he had commenced in business 19 years ago, working with stone and his business was originally named Sydney Granite Centre. His business turned to prefabricated joinery, in particular kitchens, and he determined to operate under the name SGC Joinery from 2 April 2012.
Mr Al-Tawil further said that because he wanted to start the plaintiff's employment under a new company and in the new quarter of the financial year, the offer which he advanced the plaintiff was for him to start on 2 April 2012, as expressed in Exhibit 3.
In cross-examination the following questions challenged Mr Al-Tawil's evidence of him drawing a letter of offer of employment under his business name before the company commenced:
Q. And let's just have a look at something else in the letter. In the first line, SGC Joinery was making the offer.
A. That's right.
Q. That was an offer being made by an entity which did not exist.
A. That's right, because I planning to register this business. I agree with you.
Q. Just a moment ago, I thought you volunteered, irrespective of the question, something about the need to have made it on behalf of Sydney Granite Centre, and you pointed to the letterhead, didn't you?
A. No, what I said - I said I'm opening this business, and I picked the letter from every this, and wasn't registered on this date. That's what I said here. He - he can't start before 2 April, which is the day I'm going to register this business.
Q. Let me just put something to you. That proposition is entirely consistent with you drawing up a letter - let's just think about it for a moment - a year or two later, maybe in 2014, and inserting the date 2 April 2012 because you knew that the company didn't exist before that date
A. Of course not.
Q. don't you agree?
A. I don't do that, mate.
Q. Well don't you think, by the way, just having a look at it, it looks a bit fishy to have a letter with a letterhead of an entity that doesn't exist?
A. To me - to me
Q. Is that a bit fishy, do you think?
A. To me - I - that's what you think. But to me, this - this name I already wanted it because it's the first letter of every letter of my old business, and I'm creating this business.
Mr Al-Tawil gave evidence that since 2008 he and the plaintiff had regularly met for coffee and sweets, which were brought to his office at Sydney Granite Centre by the plaintiff. His evidence was that before the motor vehicle accident he enjoyed the plaintiff's company because he would come by telling jokes. On the evidence, these meetings at Mr Al-Tawil's factory office occurred with approximately a monthly frequency but with interruptions of up to six months on occasion.
Mr Al-Tawil said that when they met for coffee and sweets in early March 2012, Mr Al-Tawil had not seen the plaintiff for close to a year: Transcript day 4, page 276, line 39. The plaintiff then asked him for work and Mr Al-Tawil said that he told the plaintiff that he was starting a new company and that he was happy to take the plaintiff back on. Whether it was at the same meeting, or another meeting, Mr Al-Tawil said that he handed the letter offering employment dated 5 March 2012 (Exhibit 3) to the plaintiff personally. He gave the following evidence of their conversation at that time:
Q. At the time when you handed it to him, did you read the letter to him or did he read the letter to himself or what happened?
A. No, no. I just gave him the letter.
Q. Did you speak about the actual offer?
A. Yeah. I told him. He asked me, "How much am I going to get paid?" I told him he would get paid that much. "If you do overtime, it will be time and a half" and things like that. I told him, "I can give you full-time work."
Q. What did he say when you made that offer to him?
A. He said, "Beautiful. When can I start?" I said, "You can't start before 2 April." Then he said, "Is there going to be any contract?" I said, "Yeah. There will be a contract when you come back on 2 April. I can't give you a contract now. I can't do any such thing. I will call you before or call me before April and I will tell you what exactly you can start."
Mr Al-Tawil said that he telephoned the plaintiff just a few days before the plaintiff was going to start, to make sure the plaintiff was going to start. He said that he did this because he had experienced newly engaged employees not to turn up. The conversation, as recounted by Mr Al-Tawil, was as follows:
…"He said, "I can't work anymore. I had an accident." I said, "Good luck to you, mate. Sorry to hear that. Thank you very much" and that's where--
Q. The telephone call about the accident - when was that? Are you able to put a date on that?
A. Not exactly - the end of March.
Q. So he did not then turn up to start work on 2 April.
A. No.
Q. After that, did you continue to have any contact with him or not?
A. I called him a couple of times to check up on him, how he was going. That's about it, because he disappeared for a few months. I didn't see him as usual.
The second defendant put to each of the plaintiff and Mr Al-Tawil in cross-examination that the letter offering employment with SGC Joinery dated 5 March 2012 was a fabrication, created for the purposes of advancing the plaintiff's claim for economic loss damages.
Exhibit 4 is a Statutory Declaration by Mr Al-Tawil dated 17 December 2014. Mr Al-Tawil's Statutory Declaration provided:
… "[7] On or about February 2012, [the plaintiff] came to my work place and asked me if there was any work for him.
[8] I immediately offered him a full-time position and he accepted.
[9] We agreed that he will commence work in the first week of April 2012 being 2 April 2012.
[10] I contacted [the plaintiff] in March and asked if he could come passed [sic] my office to discuss wages and terms so that I could prepare the Employment Contract.
[11] [The plaintiff] signed his acceptance letter and we agreed that he will sign the Employment Contract on his first day.
[12] [The plaintiff] contacted me at the end of March 2012 and informed me that he was involved in a car accident and is suffering from major back and neck pain and he was unable to commence work as planned."
There are features worthy of concern with Mr Al-Tawil's Statutory Declaration including inconsistencies between it and his oral evidence (see [89] and [90] above). They are:
1. The letter of offer, Exhibit 3, requests the attached copy be signed and returned. Mr Al-Tawil's Statutory Declaration does not attach the counterpart signed by the plaintiff and that such a document is not otherwise produced, is inconsistent with his paragraph [11]. According to paragraph [11] Mr Al-Tawil would have held the signed letter. This is particularly so given Mr Al-Tawil's oral evidence was that he handed the plaintiff the letter, Exhibit 3, at his offices.
2. Mr Al-Tawil's oral evidence was that he telephoned the plaintiff a few days before 2 April 2012 in accordance with his normal practice to ensure that the worker was to start; whereas paragraph [12] of Mr Al-Tawil's Statutory Declaration reads that the plaintiff contacted Mr Al-Tawil and informed him that he could not start.
3. Mr Al-Tawil's oral evidence was that the plaintiff said only that he had had an accident and he could not work anymore causing Mr Al-Tawil to visit the plaintiff at his home weeks or months later to find out that the accident was a motor vehicle collision and that the plaintiff suffered neck and back pain (Transcript day 4, page 277, line 35); whereas paragraph [12] of Mr Al-Tawil's Statutory Declaration reads that the plaintiff informed him in the plaintiff's initial telephone call of the details that he had been involved in a car accident and was suffering from major back and neck pain: Transcript day 4, page 278, line 04.
I observed Mr Al-Tawil carefully. Plainly, if the motor vehicle accident caused the plaintiff to lose permanent employment at the rates set out in the letter of 5 March 2012 (Exhibit 3) of $30 per hour and with overtime $40 per hour the quantum of damages for economic loss in his case would be significant.
One would wonder why Mr Al-Tawil would retain the unskilled plaintiff who had worked for him only about eleven days, four years before as a driver and tradesman's assistant, at those rates when, his evidence conceded, he could retain apprentice carpenter/joiners for $11.60 per hour.
I found Mr Al-Tawil's denial of friendship with the plaintiff to be surprising given his description of the plaintiff regularly dropping by Mr Al-Tawil's office and factory and Mr Al-Tawil giving him time to enjoy coffee and sweets and enjoying his personality and jokes. I further found it surprising that he would deny friendship when he conceded that he continued to meet with the plaintiff after the injury even though he found what he described as the plaintiff's change of personality and lack of humour to be unpleasant.
Evidence of telephone communication between Mr Al-Tawil and the plaintiff is inconsistent with the evidence given by Mr Al-Tawil and by the plaintiff of their engagement with each other. Whereas their oral evidence, the letter offering employment dated 5 March 2012 (Exhibit 3) and Mr Al-Tawil's statutory declaration (Exhibit 4) describe telephone communication before and after the motor vehicle accident, analysis of the records of their mobile telephone accounts found no contact between them prior to 10 August 2012: Exhibit 23 - Affidavit of Nathan Burt, 10 August 2017 at [2] and [3].
In cross-examination Mr Al-Tawil displayed a reluctance in conceding that his family had bought and sold motor cars through the plaintiff. I considered his ultimate concessions to be against Mr Al-Tawil's denials of friendship. A part of that evidence was as follows (transcript Day 4, page 283, line 23 to page 285 line 34):
Q. Have you bought or sold any cars with the assistance of Mr Dib? A. No, I asked him a couple of times. I was going to get a car for my wife because I know he's got a hobby of these car things so I've made a few requests from him like that, things like that, but I don't know it went through or not. I can't remember.
Q. I'll just ask the question again. Have you bought or sold any cars through Mr Dib?
A. No - I - I think so.
Q. I'm going to ask you the question again. Have you bought any cars or sold any cars through Mr Dib?
A. And I told you I think so.
Q. What do you mean you think so? Can't you answer that yes or no?
A. No, I can't remember. I buy cars a lot for my own - for my family. I - I love cars. I change cars every six months.
Q. Have you bought cars which have been purchased for you through Mr Dib?
A. I - I might be one or two. I told you.
Q. What do you mean you might? You have, haven't you?
A. Yeah, I think so. I told you that.
Q. And not only that it's not one or two, is it? It's not one or two, is it?
A. No, it's one or two, no more than that.
Q. What cars were they?
A. I can't - I think one of them is a Toyota maybe. I can't remember. You're talking years ago, mate.
Q. Please keep decorum. I want you to try and direct your mind to this. When was it that you were buying or selling cars using Mr Dib?
A. I can't recall.
Q. Well, I can tell you that in a courtroom you can't just brush it aside. You've got to try. For example, was it in the last year or two?
A. I haven't got the exact time. It could be two years. It could be three years. It could be five. I - I can't remember.
Q. I'm just going to stop there for a second and I'm now going to divide it up. You have organised for Mr Dib to buy cars for you, haven't you?
A. I asked him a few times if you - I needed a car - "Do you know someone? Do you have this?"
Q. Have you organised from Mr Dib to sell your cars for you?
A. As well I ask him that.
Q. And has he done that for you?
A. Yes.
Q. How many times has he done that for you?
A. Once or twice.
Q. Well, when you say once or twice could it be more often than that, Mr Al Tawil?
A. No, it couldn't be more often than that. I don't - I don't think so.
Q. What about on behalf of other members of your family? Have you organised for Mr Dib to buy or sell cars on behalf of other members of your family?
A. I told my family - I told him my wife and my son are always getting cars.
Q. All right, we've dealt with you. How many cars has Mr Dib bought for your wife?
A. I think one or two.
Q. And what about your son?
A. One.
Q. Have you organised for anyone else in your family to have cars bought for them through Mr Dib?
A. I don't think so.
Q. Why do you get Mr Dib to organise the purchase of cars for you and your wife and your son?
A. Because he always used to talk about cars and he always buys himself cars as a hobby and he said he's always doing - get them, sell them - and he find them cheap.
Q. So you found him to be able to secure really favourable purchases on your behalf?
A. Yeah.
Q. And on behalf of your wife?
A. Yeah, yeah, mate.
Q. Please don't call me mate. And on behalf of your son.
A. Yes.
Q. And has he sold cars on behalf of your son?
A. Not sold cars behalf of my son. No.
Q. You saying that Mr Dib hasn't sold cars on behalf of your son?
A. In my son's name, not - I doubt it. I can't remember. I don't know what's that got to do with that? You're asking me something that's nothing to do with - with - with me, and it's got nothing to do with this matter. I'm here.
Q. Why did you say that?
A. Because I'm here for two reasons. The guy worked for me before, he did. I offered him a job, yes I did.
Q. What I'm asking you are a series of questions, and unless they're out of line, his Honour, I believe, will tell you you must answer them whether you like it or not. Has Mr Dib arranged to sell cars on behalf of your wife.
A. I said I think so.
Q. The cars that Mr Dib bought on your behalf, you say you can remember a Toyota, but you can't remember what the other or others were.
A. Yeah, I think Toyota, one Toyota, one Golf, or something. Something like that.
Mr Al-Tawil agreed that from August 2012 he and the plaintiff communicated by mobile telephone usually two to three times per week. When challenged that the mode of communication between them by mobile telephone was not evidenced in an examination of mobile telephone records preceding 10 August 2012, Mr Al-Tawil proffered the possibilities of landline use and that they met face to face but could otherwise provide no explanation of the absence of mobile telephone communication: Transcript day 4, page 289, particularly at 40-45.
Only the plaintiff and Mr Al-Tawil gave evidence in relation to the plaintiff's claim of the loss of opportunity of the work described in the SGC Joinery letter dated 5 March 2012 (Exhibit 3). At the time the offer and acceptance of work is claimed to have been reached, the plaintiff's fistula continued as a significant impairment. He underwent his tenth surgery on 12 March 2012, only one week after the date of the letter (Exhibit 3). Also to be weighed in consideration of acceptance of the evidence of this part of the plaintiff's claim is the reliable evidence of the plaintiff's then solicitor Mr Sayan, that he and his office were unaware of the plaintiff's claim that he was about to start work at the time of the motor vehicle accident, throughout receiving initial instructions, completing the Accident Notification Form in April 2012 (Exhibit 1), the Motor Accidents Personal Injury Claim Form in October 2012 (Exhibit 2) and until seeking the plaintiff's instructions for the provision of further particulars of claim to the second defendant in November 2014. I now turn to that evidence. Had the plaintiff on 5 March 2012 received a solid offer of employment to start 2 April 2012 and held a letter of that date confirming it; it would be surprising that Mona was unaware of it. Her evidence quoted at [75] above included that as at the date of the motor vehicle accident he was looking for and wanted to find work.
In regard to large portions of his evidence, particularly during cross-examination, the plaintiff said that he did not recall events. Indeed, he claimed to have suffered a condition of forgetfulness since the motor vehicle accident which caused him greater loss of amenity than did his pain. His evidence was that he attended the offices of Sayan & Associates Solicitors for the signing of Accident Notification Form which was received by the second defendant from Messrs Sayan & Associates on 17 April 2012 (Exhibit 1) and six months later, for completion and signing of his Motor Accident Personal Injury Claim Form (Exhibit 2) dated 8 October 2012. Neither Exhibit 1 nor Exhibit 2 record any mention of the SGC job offer. Indeed, his Motor Accident Personal Injury Claim Form at questions 36, 37, 44, 47 and 48 informed the insurer that the plaintiff was not working before the accident, had not lost income because of the accident and had not made any firm arrangements to start a new job or change his working duties, working hours or earnings before the accident.
The plaintiff in chief was taken to question 48 of his Motor Accidents Claim Form, completed on 8 October 2012 at the offices of Sayan & Associates in the presence of Mr Sayan and Mona. Question 48 reads:
"Before the accident, had you made any firm arrangements to start a new job, stop work, change your duties, working hours or earnings?"
The box for "No" was selected on the form. The plaintiff confirmed that the X was not in his writing. (Mr Sayan's evidence was that he inserted the X). The plaintiff gave the following evidence:
Q. There's a whole series of boxes there which have the entry N O. Is that right? Sir, did you make the entries of the X in those boxes in your own hand including that in question 48 or don't you know?
A. INTERPRETER: This is not my handwriting and I can't remember. Maybe he asked me and I answer him.
Q. Sir, have you made X's in boxes on formal official documents such as passport documents, visa document and so on?
A. INTERPRETER: I couldn't remember I did this.
On 28 June 2012 the plaintiff was interviewed at his home by insurance investigator Mr Clout. Mona attended that interview. She was later given a transcript of the interview and she gave it to Mr Sayan, having spoken to and emailed the Second Defendant to obtain a copy. Through the second half of 2012 the insurer requested documentation and it was Mona who obtained it and provided responses, on behalf of the plaintiff. At no point in that process of inquiry and answer did the plaintiff claim loss of opportunity to work for SGC Joinery. Neither did Mona. Again, this indicates that she was unaware of the lost opportunity of SGC Joinery employment. Had she been aware, surely she would have made sure the insurer and the plaintiff's solicitor were informed. I discount this observation on account that Mona was not cross-examined on it.
In oral evidence the plaintiff complained that if the offer to commence employment with SGC Joinery Pty Ltd and which he could not take up because of the accident was important, Mr Sayan should have told him. He referred to Mr Sayan not being an Arabic language speaker. I observed the plaintiff in court to have workable English. When taken to his answers that at the time of the accident he was not working (Question 36), that he had not lost income because of the accident (Question 37) and that before the accident he had not made arrangements to start a new job (Question 48); the plaintiff's answers were that he trusted Mr Sayan and that the answers were Mr Sayan's mistake. In this cross-examination, his evidence was:
Q. Have a look at page 15. This is question 36, Mr Dib. The question was, "What was your employment situation before the accident?" Do you see that?
A. INTERPRETER: It was the solicitor's mistake.
Q. Well, let's just do it bit by bit. That would have been the moment to tell Mr Sayan, "I had just got a job with SGC Joinery," wouldn't it, Mr Dib?
A. INTERPRETER: He asked me if I was working in the week that I had the accident not if I was looking for work or got work.
Q. You remember that, do you?
A. WITNESS: Maybe.
A. INTERPRETER: Maybe.
Q. No, but you've just given testimony to his Honour the judge saying precisely what Mr Sayan asked you. Do you recall Mr Sayan asking you that precise question?
A. INTERPRETER: I don't remember exactly what he asked me but there seems I - I'm remembering when you're asking me now.
Q. All right, okay, let's go back to it. You just put some words into Mr Sayan's mouth. You said that he asked you whether you were working in the week before the accident. That's more or less what you said he said. Correct?
A. INTERPRETER: I just remember when you're asking me this question the solicitor asked me if I was working or not.
Q. That would've been the moment to tell your solicitor that you'd just had a job offer from SGC Joinery, don't you agree?
A. INTERPRETER: I am not a lawyer. I don't know what he should ask me or not. I was in pain.
Q. Well, look at question 37 on the same page of the document. The question is, "Have you lost income because of the accident?" and the answer is, "No." Can you explain that, Mr Dib?
A. INTERPRETER: Because the same solicitor I couldn't explain more. I don't remember.
Q. You see, it's pretty important because you've come here claiming over $600,000 in lost income, haven't you?
A. WITNESS: Sorry, not understand, please.
INTERPRETER: He said a few things and then he said, "I don't understand the question."
Q. What are you talking about? You know you're suing. You're trying to get money for lost income, aren't you?
A. INTERPRETER: For sure if I had damage from this incident I should get money from them.
Q. Well, here I just want to show you again there's a question and answer, "Have you lost income because of the accident?" and your answer was, "No." Can you explain why that is in here, Mr Dib?
HIS HONOUR: Excuse me, could you just stop. Ms Interpreter, could you please pick up the document that's on the table in front of the witness, go to number 37 on page 15 and then interpret to the witness what is there written beside number 37.
INTERPRETER: Okay, 37.
HIS HONOUR: Ms Interpreter, did you show him in that interpretation the X, the cross in the box for no?
INTERPRETER: Yes, your Honour.
HIS HONOUR: Now, Mr Watson, I interrupted. Would you ask your question again, please.
WATSON
Q. Mr Dib, can you explain that answer to that question?
A. INTERPRETER: I lost because of the accident. I didn't understand the question, why the X is there.
HIS HONOUR: I think his answer is, "I don't understand why the X was there."
WATSON: Right. I think that might be right, your Honour, but I don't want to be unfair if Mr Curran is still complaining.
…
WATSON
Q. Interpreter, to assist you, could you go forward to page 16, and I'll ask you look at page 48, because I'm going to read this on to the record, and then I'm going to ask you to translate it and put a question to Mr Dib. Mr Dib, question 48 is, "Before the accident, had you made any firm arrangements to start a new job, stop work, change your duties, working hours or earnings?" And the answer given to that question is "No." Can you explain that, Mr Dib?
A. INTERPRETER: I can't remember, but if I understood the question, I wouldn't put no.
The plaintiff agreed that he understood the truth was required in his answers recorded in the Accident Claim Form and that he understood the making of the Statutory Declaration which he completed at the end of the Form to be an obligation at law to answer truthfully.
The plaintiff's acknowledgment of the legal gravity of the Motor Accident Personal Injury Claim Form including the solemn declaration that the contents be true is consistent with those matters having been explained to him by Mr Sayan. It was the evidence of Mr Sayan that he did provide that advice as was his practice, to do.
Mona was educated in Australia, obtaining her High School Certificate and also a Diploma in Community Welfare at TAFE.
About 6 months after leaving school, through Centrelink she won employment as Low Associates of Sydney. Her duties included receptionist work, assisting in probate matters, conveyancing and personal assistant duties to the principal solicitor.
In about 2003 Mona commenced working at Sayan and Associates, Solicitors. Her work involved mainly assisting in family law matters and conveyancing.
Mona took only 3 to 4 months unpaid maternity leave for the birth of each of her 4 children of the marriage. Whilst working at Low and Associates, Mona studied towards her qualification as a licenced conveyancer, part-time at Macquarie University. Her course commenced in 2007. She qualified in 2011.
It is significant that at the plaintiff's completion of the Motor Accident Personal Injury Claim Form the plaintiff was assisted by both Mona and Mr Sayan from whom he could seek any assistance which he felt he required.
By letter dated 12 November 2014, 1 month before the date of Mr Al-Tawil's Statutory Declaration (Exhibit 4) Messer's Sayan and Associates forwarded the plaintiff's responses to particulars requested by the second defendant of the plaintiff's Motor Accident Personal Injury Claim Form.
Mr Sayan gave oral evidence, having reviewed his firms file of handling of the plaintiff's claim by his employed solicitors under his supervision. His evidence was that he personally completed the Motor Accident Personal Injury Claim Form in accordance with instructions which he obtained from the plaintiff at the conference at his offices attended by the plaintiff and Mona.
The common evidence was that the plaintiff was generally able to understand questions in the English language but that Mona was present for the purpose of providing translation, if required.
Mr Sayan explained that the ordinary practice within his firm was to seek updated instructions when activity within the matter, such as completing MACA claim form documentation, providing particulars requested by the insurer and completing the Statement of Claim, required it.
Mr Sayan said that his firm was first instructed of the SGC offer of employment about 2 ½ years after the completion of the Motor Accident Personal Injury Claim Form. That Form being dated 8 October 2012, this evidence timed that instruction at about the same time as the firms 2014 letter providing instructions; Exhibit O; Transcript day 4, page 254 and 255, line 10.
Mr Sayan recognised the crosses in the boxes answering the questions and handwriting on the Motor Accident Personal Injury Claim Form as his own.
I considered Mona to be an intelligent witness. Her answers revealed that she possessed a detailed recollection of family finances. She did not appear as a witness lacking recollection of events.
Mona's education and work history showed her to be a person of ambition in the pursuit of her chosen career as a Licenced Conveyancer.
Mona's evidence that the Claim Form was partially completed before the plaintiff was given the opportunity to answer questions directly conflicted with Mr Sayan's evidence that he completed the Form on instructions. Mr Sayan's evidence was wholly unaffected, cooperatively given and I prefer it.
For completeness I note that in cross-examination it was put directly to the plaintiff that the first time he told anybody about SGC Joinery employment was in about November 2014. He answered that he did not remember. It was further put to him that he had not told the insurer's investigator, Mr Clout, in June 2012, medico-legal experts Dr Cordato in March 2013, Dr Stephen in August 2013 or his treating local medical officer Dr Ishrat Ali in November 2013 that he had been unable to accept work with SCG Joinery or anything about that employment at all. In response he said that he could not recall what had been said to doctors. The documentary evidence does not record him or Mona informing Mr Clout, or the doctors of the SGC Joinery job opportunity or of his inability to take it up. There is no evidence of him instructing Sayan and Associates of this major component of his claim prior to the letter of 12 November 2014, Exhibit O. The plaintiff said that he could not recall when he gave the SGC Joinery letter dated 5 March 2012 (Exhibit 3) to Sayan and Associates, nor could he recall where he had been keeping it.
In my opinion the above review of the evidence, documentary evidence and the oral evidence of Mr Al-Tawil, the plaintiff, Mona and Mr Sayan overwhelmingly causes me to find as follows:
1. I reject the plaintiff's claim that he was offered employment with SGC Joinery starting on 2 April 2012;
2. I reject the plaintiff's claim that because of injuries received in the collision he lost the opportunity to take up employment with SGC Joinery on the terms of the letter of that business dated 5 March 2012 (Exhibit 3);
3. I find Mr Al-Tawil to be a witness whose evidence was so unreliable as to be a witness of doubtful credit whose evidence likely contained reconstruction, either intentional or unintentional, in his mindful attempt to give evidence which he considered would advance the plaintiff's case;
4. The plaintiff and Mona gave evidence mindful of advancing the plaintiff's claim and which lacked accuracy and frankness. Their evidence must be treated with caution and the evidence of either of them should not be accepted in the event that there is other contradictory objective documentary evidence or evidence of a reliable witness given orally.
Accordingly, I reject the evidence of the plaintiff and of Mona, that when the plaintiff and she attended Mr Sayan to compete the document, most questions had already been answered.
On consideration of the whole of the evidence I find that the plaintiff was not offered employment with Mr Al-Tawil's business and that at the time of the provision of further particulars of his claim more than two years after the motor vehicle accident, friendship led to them reconstructing events, perhaps on a belief that in their discussions prior to the motor vehicle accident it was contemplated that the plaintiff might work for Mr Al-Tawil. I do not accept that at the date of the motor vehicle collision, the plaintiff and Mr Al-Tawil had agreed that he was to be employed at SGC Joinery starting on 2 April 2012.
[4]
Plaintiff Forgetfulness
The plaintiff's work with Tip Top Bakery was full-time work. Mona gave greater detail than did the plaintiff, describing it as night shift work. Each of them described that employment as having run for about four years and each of them said that he made good money. During cross-examination the plaintiff referred to savings from his work at Tip Top Bakery as a monetary reserve. He was challenged about monies funding his NAB mortgage account (Exhibit 14) out of which he purchased and sold motor cars. Mona's more detailed evidence of the family finances included that they worked hard, saved and did not spend on such things as expensive family holidays. In addition to their home at 20 Mons Street, Granville, in the late 1990's they acquired a part share with the plaintiff's brother in a property known as 327 Clyde Street, Granville. At some time, on the evidence most likely around 2004 to 2009, they received into an "offset" account $130,000 on their sale of their share to the brother. Mona's evidence was:
A. And, like I said, we've always had that money. We had lots of money saved in our offset account so we've had money to fall back off which we have done. We've redrawn from there at various times, if we wanted to buy a more expensive car, but if you can see our transactions, we've always had money going in and out our offset account as well. We sold our share of that house on Clyde Street and put 130,000 in our offset account so money does come and go. We can't - you know, giving me these and saying, "Explain all these." Going back all these years is difficult. That is his hobby. He didn't do it for a profit. That was one of our complaints. I would say, "All this running around," and you've not been selling it for what it's really worth.
(Mona was being questioned about the plaintiff's NAB account and lump sums going in and out which she and the plaintiff explained as relating to car sales and purchases).
The plaintiff was properly challenged in cross-examination to the effect that he was not trying to remember facts. In relation to his economic loss claim and specifically in relation to his receipt of the pension, he gave the following unsatisfactory answers when asked about monies in his NAB account:
Q. Well, look at the next page in the bundle. You'll see a withdrawal on 14 October 2011 for $20,000. What could that be for, Mr Dib?
A. WITNESS: (No verbal reply)
Q. What could that be for, Mr Dib?
A. INTERPRETER: You're talking about things happen many years ago. I can't remember.
Q. Mr Dib, at that time you were on a pension of around about $200 per week, weren't you?
A. INTERPRETER: Maybe.
Q. What do you mean "maybe"?
A. INTERPRETER: You have evidence. I don't remember.
Q. You don't remember that you were on a pension or you don't remember the sum you were getting. What is it?
A. INTERPRETER: Both.
The plaintiff often gave vague answers and claimed forgetfulness to an extent that I was concerned that he was not trying to assist and to recollect matters. In this observation, I have allowed for his complaint of forgetfulness connected with suffering adjustment disorder, depression and anxiety. This is described later. Some examples are:
1. His answer (quoted earlier) that he could not recall whether or not he was on the pension in October 2011 was unacceptable. The plaintiff had to know he was on the pension because it was the only income he received between 2003 and the hearing.
2. His claim that he could not recall any of the deposits in the NAB account, Exhibit 13 was unacceptable. In particular, the plaintiff's answer that he could not recall the source of the credit in the sum of $26,800 on 12 April 2010 was, in my view, unlikely to be the result of his best efforts to answer those questions. Each of the credit sums far exceeded the amount of any other credit sums deposited into the account. It was his personal mortgage account. Mona readily explained the $26,800 credit as proceeds of sale of their near new, current model, Holden Commodore SS. The plaintiff's and Mona's evidence was that the car was the best and most current vehicle the plaintiff had owned. Accepting his love and interest in cars, that he had purchased and sold the best car his family had owned in a sum of more than twice what Exhibit 13 indicates to have been the normal value of his motor vehicle trades, makes it very unlikely that he would not recall that transaction.
3. The plaintiff's claim of vagueness of recollection of a 2010 motor vehicle accident in regard to which he made an insurance claim such that it required prompting in cross-examination for him to concede that the driver of the other vehicle was his next door neighbour, Mr Anwari Esmatullah was evidence given with what appeared to be a reluctance and an admission finally made in circumstances where references to documents in earlier questions must have made the plaintiff aware that the cross-examiner would likely have access to the insurance documents relating to that motor vehicle accident.
4. The plaintiff's answers were obviously vague, if not dissembling, when the plaintiff described the purchaser of a red BMW motor vehicle (of which he was sufficiently proud to have taken a photograph [Exhibit 8]) as a "friend" from Canberra named "Deeb"; when the purchaser was identified by Mona to be not a friend but a cousin. She agreed with the cross-examiner that ""Deeb" was an alternative phonetic spelling of the plaintiff's own surname Dib".
[5]
Consideration - the Plaintiff Gave Unreliable Evidence
The above analysis of the plaintiff's evidence, in addition to my earlier observations of evidence concerning the claim of lost employment with SGC Joinery and the plaintiff's and Mona's evidence in relation to the completion of the Claim documentation at the offices of Sayan and Associates; in my opinion, overwhelmingly justifies acceptance of the second defendants submission that evidence given by the plaintiff was unreliable. Whilst evidence concerning his pension, employment, and his dealing in cars was given in regard to topics within his claims for damages; nevertheless, his performance as a witness on those topics gives cause for caution in regard to consideration of his evidence describing the disputed "accident". In relation to his description of the motor vehicle collision, the plaintiff's evidence should not be accepted where it conflicts with other reliable evidence. Only the plaintiff gave oral evidence of how the collision occurred. The defendant relied on expert crash reconstruction opinion evidence and on the oral evidence of Mrs Rachelle Nakhoul of the post-collision scene.
[6]
The Plaintiff's Description of the Collision
The subject motor vehicle collision occurred at around 9:50 pm on 20 March 2012. The plaintiff said that he was driving his Holden Astra motor car to the home of Bob Baranowski in order to obtain from him an Indian Ring-Neck Parrot for breeding with his own bird. The plaintiff said that he had "a girl bird and I wanted to get a boy bird for her": Transcript day 1, page 13, line 20. In chief the plaintiff said that he was to pick up the boy bird from "someone named Bob": Transcript day 1, page 13, line 26. He said that he did not know Bob's last name: Transcript day 1, page 13, line 30. The plaintiff drove from his home at 20 Mons Street, Granville to Mr Baranowski's home at 241 Old Northern Road, Baulkham Hills. The plaintiff said that he and Bob had spoken of and organised the transaction at Mr Baranowski's Ken Stokes Smash Repairs the preceding day. At the outset I observe that I consider it unlikely that the plaintiff did not know Bob's surname because Mr Baranowski had employed the plaintiff, they shared their mutual love of birds, the plaintiff purchased paint for his car detailing from Mr Baranowski and Mr Baranowski was a guest at the plaintiff's wedding to Mona.
The plaintiff said that the route he took was along Woodville Road and Church Street Parramatta and after that he did not recall the street names. He was unfamiliar with the route. There was no supportive evidence of finding that the plaintiff was familiar with the route to Mr Baranowski's home.
The collision occurred on Junction Road, Winston Hills at the intersection with Romulus Street. The plaintiff's case was that when he attended the home of Bob (Mr Baranowski), in order to acquire the male parrot, on the evening of 20 March 2012, as had been arranged, Mr Baranowski was not home and when he telephoned Mr Baranowski there was no answer. He did not recall how long he stayed outside Mr Baranowski's house before he decided to drive home.
When it was put to him that he veered away from the route between Mr Baranowski's house his home, the plaintiff answered that he did not recall why he got to where the accident occurred. He did not recall what happened in his choice of route. He gave the following answers in cross-examination:
Q. See, I'm suggesting to get to the point of the accident, when it came to a cleft in the road, you had a choice to continued on Old Northern Road east toward Parramatta or right along Seven Hills Road towards Seven Hills or Blacktown. That's true, you had that choice.
A. INTERPRETER: I don't remember what happened but where - so what he's saying if I went left or right.
Q. Are you saying, "so what", are you?
INTERPRETER: He means he wants to--
WATSON: No, sorry. Is that what he said, Interpreter?
INTERPRETER: He said, "What's wrong if I went left or right?"
WATSON
Q. Well, you went in nearly the exact opposite direction to your home, didn't you?
A. INTERPRETER: I was going to go earlier to go back and get..(not transcribable)..
Q. You didn't tell the investigator that, did you?
A. INTERPRETER: I don't remember.
Q. You told the investigator, and I want to get this right, "I was going or wanting to buy drinks from the area. I was going around and saw the drink place and stopped." That's what you told the investigator, wasn't it?
A. INTERPRETER: The paper in front of you but I don't remember these things. I forgot.
Q. Does it sound right?
A. INTERPRETER: Maybe.
Q. You also told the investigator that you stopped outside a shop, but you did not buy anything at the shop. Does that sound right?
A. INTERPRETER: Maybe, I don't know.
Q. You told the investigator that the shop was on Junction Road. And so it is clear, Junction Road was the same road you were travelling on when you had the accident.
A. INTERPRETER: I stopped there?
Q. I'm asking you whether you accept that you told the investigator that you stopped at a shop on Junction Road. Do you accept that?
A. INTERPRETER: I don't remember.
Q. Does it sound right?
A. INTERPRETER: I don't know.
Q. You also told the investigator that the shop at which you stopped was closing, and that you stopped out the front for 10 to 15 minutes without entering the shop. Does that sound right?
INTERPRETER: He doesn't remember, he said.
WATSON
Q. Just thinking about it now, that sounds nonsense, doesn't it? You wouldn't want a drink and stop outside a shop for 10 to 15 minutes without bothering to enter the shop, would you?
A. INTERPRETER: I don't remember these things. I don't know. I forgot.
…
WATSON: I'll just ask one - I'll just put one fact as this.
Q. I just want to suggest to you that those things are matters you told the investigator and they're all untrue.
A. INTERPRETER: I remember I told the right thing to the investigator.
[note: the "investigator" was Mr Clout who interviewed the plaintiff on 28 June 2012].
The defendant points to the fact that the place of the motor vehicle accident was not on the route one would take to travel from Mr Baranowski's home at 241 Old Northern Road, Baulkham Hills to the plaintiff's home at 20 Mons Street, Granville. Exhibit 7 is a road map showing that the intersection of Junction Road and Romulus Street is at a place substantially west of and almost perpendicular to the normal direction of travel between those two addresses.
During further cross-examination the plaintiff said that he did not know the area well and that might be why he was travelling in the opposite direction to home. He answered "maybe" to the question as to whether he was lost.
The plaintiff said that when the accident happened he felt dizzy. Someone helped him out of his car. He did not know what happened to his body in the impact: Transcript day 19, line 5. In other evidence the plaintiff said that the air bag released.
The plaintiff said that he was unable to get out of his car unassisted following the motor vehicle accident. He could not recall whether ambulance staff or other people at the scene had extracted him from the vehicle. He said that they sat him on the footpath and that he was lying down. He immediately felt pain in his chest and in his back and on the second day he felt pain in his neck and left shoulder: Transcript Day 1, page 22, lines 15 - 33.
He recalled being present when police attended and giving his licence details as well as participating in a breath analysis test with police. He was taken by ambulance to Westmead Hospital. He said that he was able to converse with the police, the ambulance officers and hospital staff in the English language. The plaintiff was in Westmead Hospital for some hours. Other evidence shows Mona picked him up at 1.30am on 21 March 2012 and took him home.
In his evidence in chief the plaintiff said that he was travelling alone and that he had an empty bird cage in the car: Transcript day 1, page 16, line 34. He was travelling at around 50 km/h. The weather was fine and there were cars in front of the plaintiff's Holden Astra and cars coming in the opposite direction along Junction Road. He said that as he proceeded he saw the other car coming from his left. He could not recall how far away it was "but it wasn't so near to me": Transcript day 1, page 17, line 43. He estimated the distance to the car when he first saw it as 20 metres. He said that he thought of swerving to the right but there were cars travelling in the opposite direction preventing that manoeuvre.
The plaintiff said both that he tried to stop (transcript day 1, line 19) and that he did not put much pressure on the brake pedal (transcript day 1, page 18, line 31) because he thought "she will stop but she didn't stop" (transcript day 1, page 18, line 21). The plaintiff said that the front of his car collided with the front of the other car but he did not know which part: transcript day 1, page 18, line 46.
The plaintiff's vehicle came to a stop in the middle of the street but he could not remember where in relation to Romulus Street: Transcript day 1, page 19, line 25. Nevertheless, the plaintiff drew a diagram of the accident: Exhibit B. The plaintiff tendered the Police Report: Exhibit C. On the plan drawn by the plaintiff X marks the point of collision. The plaintiff said that Junction Road was single lane in each direction, there were street lights and "maybe" the other vehicle had its indicator on. He said that Junction Road sloped down in the direction of his travel. The plaintiff could not recall if the line markings were broken or continuous but he said they were white. He could not recall if there was any "street furniture".
The plaintiff denied knowing the first defendant. He said that he had never known her and had never seen her.
In cross-examination the plaintiff confirmed that the Honda driven by the first defendant was moving in the impact but that he did not know how fast. He was unable to estimate its speed because he said he did not recall. He repeated that he thought it was going to stop.
During Day 3 cross-examination it was put that the incident was staged. The following defendant factual case was put:
1. that the Honda completely stopped; to which the plaintiff answered "one hundred per cent no"
2. that the Astra was travelling at 25 - 28 km/h; to which the plaintiff answered "no more"
3. that the Astra did not brake; which the plaintiff denied but repeated that he did not brake heavily ("too much")
4. that the Astra took no evasive action by braking or by steering; to which the plaintiff answered that he recalled attempting to go to the right but that there were cars on that side preventing him from swerving
5. that a lady at the scene saw a man in dark clothing run to a car park 50 metres from the scene; to which the plaintiff answered "of course not" and "maybe you know more than me" and "witnesses can say whatever they want"
6. The plaintiff was asked whether he was in the Astra at the time of the motor vehicle accident; to which he answered in the affirmative
[7]
Defendant Crash Analysis Expert Opinion Evidence
The defendant relied on the expert report evidence of Mr Sculthorpe dated 16 May 2012 (Exhibit 18) and Mr Jamieson, dated 23 April 2013 (Exhibit 21). Whereas Mr Jamieson is a qualified engineer, Mr Sculthorpe is not professionally qualified. Amongst his learning Mr Sculthorpe completed the NSW Police Police Academy Accident Investigation Course and two Traffic Accident Reconstruction courses at Northwestern University, Chicago, Illinois. Both Messrs Jamieson and Sculthorpe have vast experience in reporting their analysis of motor vehicle crash incidents. Only Mr Sculthorpe gave oral evidence.
Whereas Mr Sculthorpe inspected the vehicles before their repair and based his opinion solely on that inspection, Mr Jamieson examined photographs of the damage and took into account the statements made by the first defendant and the plaintiff to NSW Police and to insurance investigators. Neither expert, on the basis of their scientific analysis, determined the location or position of the vehicles or the point of impact upon the roadway.
Mr Sculthorpe agreed that the angle of the vehicles at impact was not inconsistent with the first defendant's Honda having been angled slightly to the right and the plaintiff's Astra being angled slightly to the left from the perpendicular at collision. Mr Sculthorpe also found that the damage to the vehicles was not inconsistent with the plaintiff's motor vehicle being under brakes at impact. Accordingly, Mr Sculthorpe's opinion, based on his analysis of the damage to each of the vehicles is not inconsistent with those elements of the plaintiff's version of the collision that:
1. he wanted to swerve to the right to avoid the collision but could not do so because of oncoming traffic; and
2. he braked, albeit not heavily, thinking the first defendant motor vehicle would stop.
Several statements of the first defendant were admitted into evidence: Exhibit C, NSW Police Force Services Report, Exhibit P, NSW Police COPS Report pages 3-5, Exhibit 31, first defendant statement to Insurance Investigator Flinders on 2 May 2012 and Exhibits 29 and 30, the first defendant's evidence in her Local Court proceedings brought against the second defendant.
In those statements the first defendant stated that she was unsure whether she managed to stop or her car was moving but if moving then it was proceeding very slowly. She had intended to turn right from Romulus Street into Junction Road but at the last moment changed her mind to turn left. There is no evidence of precision as to the direction which her car was facing in relation to those streets immediately preceding the impact. Her description of indecision as to direction to turn could have delivered her vehicle to the collision facing anywhere within the field of some degrees left to some degrees right of the perpendicular to Junction Road.
Mr Sculthorpe's opinion was that because a screw and other parts of the number plate on the front of the Holden Astra left a clear impression in the plastic/resin dress bumper cover of the front of the Honda; the Honda motor vehicle must have been stationary. He was adamant that because of this there was no possibility that the Honda was not stationary.
Mr Sculthorpe conceded that the bumper cover of the Honda motor vehicle detached, crumpled and moved during the progression of the impact between the vehicles which allowed it to remain stationary relevant to the number plate fixed to the bumper cover at the front of the Astra.
I was concerned that common sense must mean only that the Honda bumper cover from first impact with the Astra remained in unmoved contact against the number plate of the Astra and could have remained so as detachment and deformity of plastic/resin dress components of the motor vehicles from the masses behind continued. This must allow for the possibility, at least, that the mass of the Honda motor vehicle was moving to some extent differently to its bumper cover.
Simply put, the Honda's bumper cover bearing the marks which Mr Sculthorpe relied upon did not remain in a fixed position in relation to the motor vehicle behind it during the course of the motor vehicle accident from commencement to completion of collision.
Mr Sculthorpe conceded that he could refer to no authority nor to any specific learning upon which his hypothesis was based.
I prefer the opinion of the consulting forensic engineer Mr Jamieson at [6.1]: "Firstly in relation to the imprint of the number plate, this (clean) imprint gives weight to the proposition that the Honda was stationary at the moment of impact (or almost stationary). Secondly, the different heights from the imprint of the screw head compared with the screws actual height above the road would suggest that the Astra driver may have been braking - which would have caused the Astra's nose to dip slightly." And that [6.2] "…had the Honda been moving forward (faster than several kilometres per hour) it would be expected that it would have inflicted a different kind of damage to the Astra…"
Taking the expert opinion evidence of Messrs Sculthorpe and Jamieson together into consideration; they are consistent with or at least not inconsistent with the plaintiff's description of how the motor vehicle collision occured, including his seeing the Honda motor vehicle coming from Romulus Street into Junction Road on his approach to that intersection, his attempting to swerve to the right but because of oncoming traffic, being unable to do so, his braking and the first defendant car continuing at a low speed into Junction Road and into the path of the Astra driven by him.
That the Honda driven by the first defendant was angled to the right and proceeding slowly immediately before impact is consistent with the angle of impact of the motor vehicles opined in the expert crash analysis and not inconsistent with the first defendant's statements that she intended to turn right but at the last moment determined that she would turn left. It is also not inconsistent with the first defendant having not turned to the left. It is consistently recorded that the first defendant said she did not see the Astra before the bang of the collision. Again, there is no evidence to the contrary. It must be remembered that Messrs Sculthorpe and Jamieson made observations of the vehicles positions in relation to each other only. They were not able to identify the angles of the vehicles in relation to the roads.
I accept and find it to be consistent with the evidence, Mr Jamieson's conclusion at [6.5] and [7] of his report; that he having considered Mr Sculthorpe's report, analysed the vehicle damage, read the NSW Police Force records of driver statements and other statements by the drivers: the crash configuration was not determinative of whether or not the collision occurred as described in those statements by the drivers and was an "unintentional accident".
For completeness, given neither Mr Sculthorpe nor Mr Jamieson included in their consideration that the plaintiff took avoiding action of attempting to swerve to the right and particularly that Mr Jamieson did not consider this within his calculation of reaction times; there is nothing within the expert opinion evidence supporting a finding that the plaintiff failed by swerving and by earlier or heavier braking to take and crash avoidance action, such that the collision occurred in a manner inconsistent with the descriptions given by the plaintiff and as recorded as given by the first defendant.
I find that nothing in the direct evidence given by the plaintiff and as taken from statements of the first defendant or anything in the expert opinion evidence of Messrs Sculthorpe and Jamieson justifies rejection of the plaintiff case that the collision was accidental, on the balance of probabilities.
[8]
Evidence of Ms Rachelle Nakhoul
Ms Nakhoul lives at 202 Junction Road, Winston Hills on the corner of Romulus Street and did so at the time of the motor vehicle collision on 20 March 2012.
From her large lounge room window facing Junction Road she had a clear view uninterrupted by fencing or other structure, but for one telegraph pole, of the whole of the intersection from about twenty metres up Romulus Street, through Junction Road and down Junction Road as far as the car park opposite her house (about 50 metres).
She recalled hearing a really large bang and went to her lounge room window, pulled the chord to part her vertical blinds and looked out. The intersection was lit by street lighting. She said that she had a good view even though it was a dark night.
She stayed at the window and watched the scene. She saw a third car arrive after one or two minutes which came up Romulus Street and stopped behind the two crashed motor vehicles. She could not see inside either of the Holden Astra or the Honda. She could not recall seeing persons standing at the vehicles or persons getting out of the vehicles. She recalled seeing people running. The most specific part of her evidence describing that observation was as follows:
Q. When you say you saw a couple of guys running away, first of all, did you see them leave any particular part of that locality? Where did they go from towards what?
A. They were where the banged cars were on the corner and they were running into the carpark.
She described two or three darkly clothed persons. She had the impression they were men in their twenties, running fast.
Ms Nakhoul was cross-examined by counsel for the plaintiff, about problems with noise and patrons from the Winston Hotel which was next to the car park opposite her house. She agreed that there had been some problems of persons coming out of the hotel intoxicated and she had called the police on three occasions in regard to that behaviour. She said that Junction Road could be busy with traffic during the day but was quieter on the weekend. She recalled that the traffic was quiet that night.
Ms Nakhoul gave her evidence openly and honestly. She conceded that which she could and could not recall. She was unsure whether there were two or three persons running.
It would not be surprising that the motor vehicle accident remained in her recollection, not only because it occurred outside her house and caught her attention, but because she thought it was strange to see the persons running in the vicinity of the cars and because it was the only motor vehicle accident she had ever seen.
She agreed that a person moving from the Max Ruddock Park to the Hotel car park would have taken the same route as the two or three running individuals. In regard to this, Ms Nakhoul did not see the individuals commence to run.
On Exhibit 17 Ms Nakhoul marked her home by drawing a ring around it. She wrote a 'C' for the place of the car park, 'J' for Junction Road and an 'R' for Romulus Street. The exhibit is a Google Earth photograph from above the location. She placed 'M' for Max Ruddock Park.
By affidavit made 10 August 2017, read without objection (Exhibit 22) Ms Nakhoul said that there is no shop in Junction Road east of the intersection with Romulus Street.
In the defendant case, it is said the plaintiff's story that prior to the motor vehicle accident he was stopped outside a shop is not to be believed because there is no shop at which a drink could be purchased during his travel westward along Junction Road before Romulus Street. The common evidence is that there were shops beyond the hotel, opposite Ms Nakhoul's home and therefore some short distance west of the intersection at which the motor vehicle accident occurred. However, the evidence did not investigate with precision whether the plaintiff had prior to the motor vehicle accident travelled on Junction Road west of Romulus Street.
The plaintiff's answer to Mr Clout's question 271 (Exhibit 19 - 28 June 2012) was that he was driving in generally west direction but could not say exactly where and "therefore, I went there, went a lot then turned a lot and did not know how to come back here exactly". That answer is not inconsistent with the plaintiff having gone west of the intersection Romulus Street to where there were shops. In his evidence-in-chief and in his answer to question 275 asked by Mr Clout, the plaintiff said that whilst he was waiting outside the shop, he thought that maybe Bob (Baranowski) would call him but that did not happen.
In summary:
1. Ms Nakhoul did not see persons getting in or out of the motor vehicles nor was she able to say that the persons she saw commenced their running from the motor vehicles and accordingly, her evidence is not of having witnessed an exchange of the plaintiff or of the first defendant for drivers involved in the motor vehicle collision.
2. The plaintiff did not describe the location of the shop at which he stopped as on Junction Road east of the intersection with Romulus Street because his description of driving included changing direction prior to the collision and that description of travel was not inconsistent with him having stopped at one of the stops west of the intersection with Romulus Street.
3. I find that the evidence of Ms Nakhoul is not inconsistent with the plaintiff's description of how the collision occurred.
4. The second defendant's argument that the plaintiff misdescribed his course of travel because of falsely stating that he stopped at a shop is not made out on the evidence.
[9]
Consideration - Acceptability of the Plaintiff's Description of the Collision
The second defendant's submission that the plaintiff's evidence was unreliable has in many respects been found to be correct in these reasons. The areas of found unreliability were generally within the plaintiff's case on damages. I have found that the plaintiff's evidence in those areas was shown to be so unreliable as to require the exercise of caution against acceptance of his evidence of the occurrence of the collision in the event that there is other contradictory, reliable evidence. As already observed, I include in this that albeit I observe the plaintiff to be a witness of poor recollection I have found him to be a witness who was reluctant to make concessions during cross-examination when he was concerned that to do so might be against the interests of his case. I bear in mind that an example of this was his reluctance to concede that the driver at fault in his 2010 motor vehicle accident lived next door to the property owned by the plaintiff and Mona at 20 Mons Road, Granville.
Exercising that cautious approach to the plaintiff's evidence, I have found that there is not reliable evidence or indeed any evidence of fact, contrary to the plaintiff's description of the collision. Expert accident reconstruction opinion of Messrs Jamieson and Sculthorpe, tendered by the second defendant and which was based upon all prior statements describing the collision made by the plaintiff and by the first defendant as well as analysis of the physical damage to the motor vehicles does not, on balance, support a conclusion of fact contrary to the plaintiff's description of the occurrence of the collision. I accept the plaintiff's description of the accident.
[10]
Second Defendant's Allegation of Fraud
In the second defendant's Outline of Submissions handed up on 14 August 2017 and Final Outline of Submissions dated 14 September 2017 it described how it put the allegation that the plaintiff's claim was fraudulent. The later dated written submission at [4] directed attention to Transcript day 12, pages 756 to 759 where, it was submitted, the second defendant drew "all of the factors together". I have dealt with and accepted the second defendant's first argument on liability; i.e.; that the plaintiff was an unreliable witness ([2] written submission 14 September 2017). I have found against the second defendant's further submission that the "Court would find that the plaintiff gave an incorrect and/or false version regarding the collision" ([3] Outline of Submissions 14 September 2017). In particular I have found that the plaintiffs' description of the Honda motor vehicle driven by the first defendant to be moving immediately preceding the collision to be evidence not inconsistent with the expert opinion, accident reconstruction evidence, tendered by the second defendant. I have accepted the plaintiff's description of the collision. For completeness, the second defendant cross-examination of the plaintiff investigated the proposition that the plaintiff was in a location in a direction of Winston Hills and not in accordance with a most direct route to return to his home from the home of Mr Baranowski. I have accepted the plaintiff's response that he was looking for a shop to buy a drink and waiting for Mr Bob Baranowski to call, to be not inconsistent with other evidence. There is nothing implausible in the plaintiff case in that regard.
Turning to the oral submission on Day 12 at transcript pages 756, line 29 to 759, line 20, the second defendant conceded that there was "no obvious connection" established on the evidence between the plaintiff and the first defendant. The second defendant relied upon the connection between Messrs Baranowski and Bessounian established on the evidence and that it would be an "extraordinary coincidence" or "some incredible coincidence" that the plaintiff who was known to Mr Baranowski and travelling for a purpose associated with Mr Baranowski collided with the first defendant who was known to Mr Bessounian. The second defendant submitted that the court would be concerned with the statements made earlier by the first defendant that she was unsure whether her vehicle was stationary or travelling slowly in the moments prior to the collision when she was unsure whether to turn left or right at the intersection of Romulus Street and Junction Road in the course of her travel. There was no cross-examination of the first defendant. It was conceded that the first defendant was not an "unavailable" witness: Evidence Act 1995 (NSW), Dictionary. My analysis of the expert accident reconstruction opinion evidence tendered by the second defendant (above) concluded that there was no objective evidence contrary to the plaintiff description of the first defendant vehicle coming out slowly from his left.
What is left for consideration of the second defendant allegation of fraud is to consider the evidence of "connection" between Messrs Baranowski and Bessounian and then to evaluate whether taking the whole of the evidence of the circumstances of the collision and of Messrs Baranowski and Bessounian and in the context of the plaintiff and his wife having being shown to give unreliable evidence, the second defendant has satisfied its obligation of proof of fraud: s 140 Evidence Act 1995 (NSW). I have found that the evidence of the collision alone does not show it to be staged. Consideration of the full force of the whole of the evidence including the second defendant's case that Messrs Baranowski and Bessounian orchestrated the staging of the collision may yet lead to a conclusion that the collision was staged: Palmer v Dolan [2005] NSWCA 361.
The second defendant describes the first defendant's motive as the opportunity to achieve the insurance payout on her motor vehicle of $32,000 when she had purchased it with the assistance of Mr Bessounian for $14,000. The second defendant put the plaintiff's motivation as an attempt to recover the insured property value of $24,000 for his motor vehicle which he had purchased for $18,000 (he owed $6,000 on the purchase) and to recover personal injury damages. For consideration of the second defendant argument, I will accept that if the fraud be proved, monetary gain was the motivation.
I observed Messrs Baranowski and Bessounian carefully as they gave their evidence. My assessment of their evidence in the context of the second defendant's case of fraud is below.
[11]
Bob Baranowski
Mr Baranowski from before the subject collision and until the hearing lived at 241 Old Northern Road, Castle Hill. Throughout the time relevant to this case he was the principal owner of Ken Stokes Smash and Mechanical Repairs (referred herein as "Ken Stokes Smash Repairs"), at Granville. The business is operated through a company. Presently Mr Baranowski is the sole director and shareholder of that company. According to his evidence, at times relevant to these proceedings, his son Jacob was also a director and worked in the business.
The plaintiff worked at Ken Stokes Smash Repairs as a spray painter from about 1996 or 1997 until about 2000. A letter of reference provided by Mr Baranowski dated 31 May 2000 (Exhibit 6) in combination with his oral evidence, indicates that the plaintiff was employed for about 6 months on a permanent basis and with casual employment, he was employed over a two to three year timespan. The plaintiff voluntarily left that employment. Mr Baranowski was aware that when the plaintiff left his employ, the plaintiff tried to buy, repair and sell motor vehicles. Mr Baranowski on occasion sold the plaintiff paint at cost price for his restoration of motor vehicles. Other than supplying paint from time to time, Mr Baranowski's workshop was not engaged in the plaintiff's motor vehicle restorations.
Mr Baranowski and the plaintiff remained in contact also because of their interest in birds, particularly the Indian Ring-Neck Parrot. Each of them swapped and sold birds in the course of their hobby of breeding them. Mr Baranowski said that he had 30 aviaries and 30 plus birds in his backyard. He bought and sold birds mainly at bird shows. He has been a member of the Australian Birds Society for 30 years.
Between May 2000 and March 2012 Mr Baranowski described, consistently with the evidence given by the plaintiff, that their contact was casual, a few times per year.
Before coming to court, Mr Baranowski had reviewed his office records. He found documents concerning damage and repair assessment of the first defendant's Honda motor vehicle but no documents or information in relation to the plaintiff's Astra motor vehicle.
He explained that in his business he has every day contact with insurance assessors and that his work generally comes from referrals and from insurers.
He explained that if a car is to be towed from a motor vehicle accident the owner signs a release document for the tow truck driver. The owner might tell the tow truck driver where the car is to be taken. If the owner cannot attend to signing the release, the police sign it for the tow truck driver. The car will be taken to the smash repairer as directed by the owner or if none, then to the insurer's yard, if the insurer is known.
Mr Baranowski first learned of the motor vehicle accident when Mona telephoned him and informed him that the plaintiff had been taken to hospital and that the plaintiff's car was in the AAMI yard.
Ken Stokes Smash Repairs did not repair either the plaintiff's Holden Astra or the first defendant's Honda.
Mr Baranowski had known Mr George Bessounian since about 1994 or 1995. Mr Bessounian provided financial assistance to his son at that time. A relationship commenced wherein Mr Baranowski would telephone Mr Bessounian making referrals in relation to finance. Mr Bessounian attended Mr Baranowski's office when someone, like one of Mr Baranowski's workers required finance. Mr Bessounian referred customers and friends in need of motor vehicle repair to Ken Stokes Smash Repairs.
There was substantial cross-examination of each of Mr Baranowski and Mr Bessounian by the second defendant directed to establishing that their relationship was a close friendship. The reference "friend" in the context of local small business networking, as each of them described, has an everyday context. That context is that the individuals engage in a predominantly business content engagement, with a personal familiarity and fond relations. In my opinion, the cross-examination did not achieve describing a closer personal bond between them. They did not, for instance, socialise outside of their business arrangement. They did not entertain each other at their homes.
When Mr Bessounian telephoned Mr Baranowski on 21 March 2012 he informed him that he would have the first defendant's Honda transported to Ken Stokes Smash Repairs.
Mr Bessounian's relationship with the first defendant was a long term friendship and she had called him and sought his comfort at the collision scene.
The Honda motor vehicle was towed to Ken Stokes Smash Repairs. The NRMA as insurer emailed a description of the accident from its Claims Department. Mr Baranowski said that it was on receipt of that email that he noticed the collision in which the first defendant's Honda motor vehicle was involved was the same motor vehicle collision involving the plaintiff's Holden Astra.
Mr Baranowski provided his quote for repair of the damage to the Honda motor vehicle. NRMA did not instruct the repairs be performed. He understood that the Honda motor vehicle was sold by the NRMA at auction.
Mr Baranowski's evidence matched that of the plaintiff concerning the arrangement that the plaintiff was to come to Mr Baranowski's home on the evening of 20 March 2012 for the plaintiff to pick up a male bird. Mr Baranowski said that he did not regularly get home from work until about 8pm to 8.30pm. He said that the plaintiff did not turn up after he arrived home.
Mr Baranowski had given the plaintiff directions for travel to his home. His evidence was as follows:
Q. When you spoke to him about him coming over to pick up the male ringneck parrot, did you give him directions?
A. Well, of course, I will give him directions, but I will not try explain him how to go through North Rocks. I will try give him most easy way through Windsor Road, and if it's locked, he can - he can go before that left to Windsor - Winston Hill and come into Northern Road.
Mr Baranowski said that in March 2012, construction of the M2 caused changes on Windsor Road where it crossed the M2. He said that if a person did not know the area, "it was very hard to pass or drive through": Transcript day 5, page 332, line 49. He said that to avoid those problems, he drove to work through North Rocks and not through Windsor Road or Baulkham Hills: Transcript day 5, page 333, line 9.
I was not struck by the significance of this evidence because the plaintiff did not give evidence of having to detour in order to avoid road construction work. Senior Counsel for the second defendant properly objected on that basis. At transcript day 1, page 15 the plaintiff gave evidence that he proceeded from his home toward Mr Baranowski's home by taking firstly Woodville Road, then Church Street in Parramatta. The map Exhibit 7 was shown to the plaintiff on Day 1 (transcript 103, line 25). Mr Baranowski agreed that the road map (Exhibit 7) showed the direct route between the address of the plaintiff's home at 20 Mons Street, Granville and his own home at 241 Old Northern Road, Castle Hill.
Mr Baranowski said that in March 2012 he had not at any point had cause to drive through the intersection of Junction Road and Romulus Street at Winston Hills. He said he would probably drive there if he had a need to go to Winston Hills but that it would otherwise not be necessary for him. The significance of this evidence is that the plaintiff lived in Granville, not far from Mr Baranowski's Ken Stokes Smash Repairs. This evidence confirms that routes to be travelled by Mr Baranowski, as an informed driver of the route between those locations, even in the period of the construction of the M2 overpass, did not bring him to drive into Winston Hills at the location of the motor vehicle accident. This evidence is to be weighed against the plaintiff's story that he was on Junction Road looking for a shop to buy a drink and waiting for Mr Baranowski to call.
Mr Baranowski said that the plaintiff later acquired a male Indian Redneck bird from him, about one month after the motor vehicle accident. He recalled two meetings with the plaintiff after the motor vehicle accident. Once, the plaintiff wanted to see one of Mr Baranowski's birds. Once the plaintiff showed him an old vintage car about which the plaintiff wanted his advice on whether it was worth restoring or should be sold. Mr Baranowski agreed that he probably had seen the plaintiff on other occasions. He had continued telephone communication with the plaintiff, mostly to talk about which birds to put together for breeding.
Mr Baranowski said that he did not notice any change in the plaintiff's interest in birds after the motor vehicle accident. I considered this evidence significant because it matched the evidence given by the plaintiff's brother Mr Mohamed Dib but was contrary to the extent of depression claimed and the evidence of Mona and of Rola Dib both of whom described the plaintiff as having lost interest in his prior habits and specifically Mona Dib's evidence of the plaintiff's loss of interest in his birds.
In cross-examination, Mr Baranowski showed himself to be a less than open witness in regard to his history of motor vehicle accidents and insurance claims. When asked about a motor vehicle accident which occurred at the Church Street off ramp of the M4 motorway in regard to which he currently has lawyers retained to make a claim against the NRMA on his behalf; he at first answered that he could not recall an accident at that location, suggested a location of Villawood Road and then subsequently answered that he could not be sure the incident involved the collision between three motor vehicles including his own. In later evidence it was shown that he clearly recalled the circumstances of the collision, the names of the other drivers and the motor vehicles involved. His was the middle car and his long term business associate Mr Bessounian was driving the first car. All three cars including that of the third driver, who was at fault, were repaired in Mr Baranowski's business, Ken Stokes Smash Repairs. His initial reluctance to concede these facts can be seen in his following evidence:
Q. … now tell me Mr Baranowski have you ever had a CTP damages claim?
A. Me?
Q. Yes.
A. Not if I'm CTP.
Q. A damages claim, claiming money arising out of a motor accident, have you ever had such a claim?
A. I can have that moment one, yes with NRMA.
Q. All right, has your son ever had a - made a car related damages claim?
A. No, not if I know.
Q. Did you have a or do you have a damages claim where you're represented by lawyers?
A. Of course we are, we use lawyers if I need something like that.
Q. Are you currently seeking damages yourself your own motor car claim?
A. Yes, that's what I said.
Q. Is your lawyer Rafal, R A F A L, Rogusz, R O G U S Z?
A. Correct, yes correct.
Q. And he has a firm Benefit Lawyers?
A. Benefit Legals, yes.
Q. And is that claim currently on foot?
A. I believe so.
Q. Does it arise out of a motor accident which occurred on the Church Street off ramp of the M4?
A. No.
Q. Okay where did the motor accident for which you have your claim occur?
A. In Villawood Road, I don't remember the cross but it was Villawood Road.
Q. You've got more than one damages claim don't you?
A. Not that I know.
Q. Not that you know? All right, well what I want to suggest to you is that you have given notice of a claim in respect of an accident which happened on about 5pm on Sunday 23 August 2015, is that right?
A. I don't remember the dates, yes probably.
Q. All right, you've got two claims on foot currently don't you?
A. I know I've got one.
Q. Well, let me show you a document and ask you if you recognise your signature on the second last page?
A. Yes, yes I do.
Q. Could you return that document to the Court? This
HIS HONOUR
Q. Is that yes that's my signature, or yes I know the document?
A. Yes, that's my signature.
[Watson]
Q. If I show it to you again and you just glance through it you will see that it is all part of a letter sent by your lawyers, that's Mr Rogusz?
A. Yes.
Q. But if you turn over, in respect of a claim that you've got for damages, for an accident which occurred on the 23 August 2015, do you see that?
A. I can't see the date but
Q. Well, it's there on the second page of
A. Yes, yes
Q. the document.
A. sorry, 23/8/15, yes sorry.
Q. All right, now does that help you remember that you had a motor accident on the off ramp of the M4 near Church Street Parramatta, does that assist you?
A. Yes.
Q. Just return the document to me for the moment, now, that your memory's been assisted could I ask you do you agree that there were three cars involved in the accident?
A. Most likely, yes.
Q. When you say, "Most likely," I'm getting you to think about an incident which occurred and it's not a huge amount of time ago. It's only two years ago.
A. That's a lot of time.
Q. A motor accident for which you've got a damages claim. Can you remember that event?
A. Very briefly, but I don't remember I have a claim against it. I know that I notified my lawyer about it but I don't remember I have a claim against it.
Q. You say you don't know that you've got a claim in relation to it?
A. Not that I'm aware. I know about the claim after Villawood road accident, yes.
Q. Well, we'll come to that, don't worry.
A. I'm not worried.
Q. I'm talking about the Church Street off-ramp accident.
A. Okay.
Q. Do you want to look at this document again and just check your signature on a document called Motor Vehicle Personal Injury Claim Form? Do you want to look at the document again, or do you accept that you've got a damages claim for the Church Street off-ramp accident?
A. If I have, I don't know nothing about it.
HIS HONOUR
Q. No, sir, listen to the question. You're being asked a fact. The fact is, do you agree, now that you have been shown the papers that you've just looked at, that you do have a claim in relation to a motor vehicle accident at the Church Street off-ramp of the M4? Do you agree you have a claim in relation to that motor vehicle accident?
A. Yes. Because these documents say so, yes.
He denied recollection of the vehicles:
WATSON
Q. What I want to suggest to you is there were three cars in the accident which happened on the Church Street off-ramp. Is that your recollection?
A. Yes.
Q. The car in the front was a silver Audi. Do you remember that?
A. No.
Q. The car in the middle was a silver Peugeot. Do you remember that?
A. Peugeot, yes, Peugeot was first.
Q. Well, you were driving the Peugeot.
A. That's correct.
Q. And the car at the rear, I want to put to you, was a black Mazda.
A. Yeah, it was a black car, yes.
Q. There was damage done to each of the cars?
A. Sorry?
Q. There was damage done to each of the cars.
A. Yes.
Without being taken to any further documentation or other information. Mr Bob Baranowski then started conceding his detailed knowledge of facts, immediately before said to be beyond his recall:
Q. You see, the silver Audi was driveable and it was taken to Ken Stokes Smash Repairs, wasn't it?
A. Yes.
Q. The silver Peugeot, I want to suggest, wasn't driveable but it was towed and it was towed to Ken Stokes Smash Repairs. Is that your recollection?
A. That is correct, yes.
The silver Peugeot was the one being driven by Mr Baranowski in the motor vehicle accident.
Q. The black Mazda, the third car in the three-car accident, was also taken to Ken Stokes Smash Repairs.
A. That's absolutely correct.
As his evidence in chief conceded, Mr Bessounian was well known to Mr Baranowski in 23 August 2015. Mr Baranowski gave the following unsatisfactory, avoiding answers before admitting that he was aware that Mr Bessounian was driving the silver Audi motor vehicle with which Mr Baranowski's Peugeot collided in that incident. As the transcript shows I felt it was required that I direct him to answer the question. His evidence was:
Q. The third car, who was driving that?
A. You can tell me, thank you.
Q. No, I'm asking you. The third car in that accident, Mr Baranowski, who was driving it?
A. Please tell me.
Q. No, I'm asking you, Mr Baranowski. Who was the third driver involved in the three-car pile-up on the Church Street off-ramp?
HIS HONOUR: That's the black Mazda?
WATSON: No, this is the silver Audi.
Q. Who was the driver of that third car?
A. You can tell me. I can tell you I was driving the Peugeot and that's it, which is true. I just--
HIS HONOUR
Q. Sir, "You can tell me," is not, with respect, a responsive answer. Your answer is either what you know or your answer is you don't know, but, "You can tell me," is not an answer.
A. Okay.
Q. It's an argument.
A. All right.
Q. Now, could you respond to the question.
A. Yes.
Q. Who was driving the third car, which was the silver Audi?
A. Yes. Kevork Bessounian.
WATSON
Q. Sorry, Kevork Bessounian?
A. That's correct.
Q. The person we were talking about earlier.
A. That's correct.
Mr Baranowski agreed that Mr Kevork Bessounian was the same George Bessounian about whom he had given evidence of long term and fond commercial networking relations.
It was put to Mr Baranowski that his motor vehicle accident on the Church Street off ramp of the M4 of 23 August 2015 was planned in order for the drivers to make insurance loss claims and for his business to benefit from performing the repairs. Mr Baranowski agreed that he encouraged the other drivers to have their vehicles repaired in his work shop. He denied that it was planned.
There is no evidence in the case that the at fault driver of the black Mazda, Mr Bashir Daher, was in any way connected with or known to Mr Baranowski and Mr George Bessounian. It is not necessary for me to determine whether that motor vehicle accident was staged; but, in the absence of any evidence so connecting the driver at fault; that proposition of fraudulent planning does not fairly arise from the evidence.
In relation to the subject motor vehicle accident, Mr Baranowski remembered the first defendant's first name, which was Kallie, as Kelly. He denied having any knowledge of her other than remembering her first name in relation to her car being in his workshop for assessment. He denied knowing what the relationship was between her and Mr Bessounian other than Mr Bessounian referred Ken Stokes Smash Repairs for the repair of her motor vehicle.
Mr Baranowski's claim that he did not know how his acquaintance Mr Bessounian knew the first defendant was challenged on the basis of his numerous telephone contacts with Mr Bessounian between 9 March 2012 and 20 March 2012, preceding the motor vehicle accident. Mr Baranowski's answer was that he did not remember. Given the passage of five years, that Mr Baranowski did not remember, was acceptable.
The unchallenged evidence is that on 21 March 2012, Mr Bessounian contacted Mr Baranowski to refer the first defendant's car to Ken Stokes Smash Repairs. It is also not disputed that on 21 March 2012 Mona spoke with Mr Baranowski, informing him of the plaintiff's motor vehicle accident. Mr Baranowski was unable to recall but did not deny that Mona called him on 24 and 26 March 2012. He denied knowing that she was in Lebanon.
Next it was put to Mr Baranowski that he had telephoned the plaintiff twice on 19 March 2012. Mr Baranowski said that he did not recall the times of the calls but that he would have contacted the plaintiff because he was expecting him in relation to the plaintiff's acquisition of his bird. He did not recall but conceded it was likely that he would have called the plaintiff on the day of the motor vehicle accident, for that same purpose because he was expecting the plaintiff at his home.
Mr Baranowski eventually agreed that he had a second personal injuries damages claim to that concerning the Church Street off ramp of the M4. The other one involved an accident which happened on Villawood Road in Old Guildford on 20 September 2014. Exhibit 16 is Mr Baranowski's Motor Accidents Personal Injury Claim Form.
The cross-examination put to Mr Baranowski that the driver of the other vehicle in the Villawood Road collision, a Mr Ali Habib, was well known to him on the basis that the Habib family were customers of Ken Stokes Smash Repairs. Mr Baranowski responded that he did not know Ali Habib prior to that motor vehicle accident and that Habib was a popular Lebanese name. He agreed that he encouraged Mr Habib to have his car delivered to Ken Stokes Smash Repairs but said that it was a write off and was not repaired. He said that he told Mr Habib that it was an old and badly damaged car. He said that he was unaware of the property damage payout sum Mr Habib received.
Mr Baranowski was tested on his knowledge of a motor vehicle collision between Mr Ali Habib and Mr Itab Chamma on 15 December 2014. That collision occurred at Woodville Road in Old Guildford. Mr Baranowski said that he was aware that motor vehicle collision occurred but denied that Mr Chamma's car, a Toyota Vienta, was repaired at Ken Stokes Smash Repairs. Mr Baranowski denied knowing Itab Chamma. He said that he knew a Mahoud Chamma because Mr Baranowski had employed him.
A motor vehicle accident involving Mr Bessounian on 29 May 2015 became the subject of questions put to Mr Baranowski. Again, Mr Baranowski had no recollection of that motor vehicle accident. He recalled repairing a Nissan X-Trail for Mr Bessounian. He did not recall the name of the other driver Rania Habib. It was put that the address for Rania Habib and Ali Habib was the same 12A Malvern Street, Old Guildford. This did not refresh Mr Baranowski's recollection. He did not recall the repair of a Holden Viva, owned by Rania Habib, at Ken Stokes Smash Repairs.
Mr Baranowski denied being aware of any connection between the several motor vehicle accidents put to him.
Lastly, Mr Baranowski was tested on his knowledge of a motor vehicle accident which occurred on 28 November 2015 involving three cars, one of which was driven by Mr Bessounian, another by Mr Said Zreika and the third by Mr Jack Sawah. Mr Baranowski said that he did not know Messrs Zreika or Sawah but that he recalled the accident because Mr Bessounian came into Ken Stokes Smash Repairs, the accident having happened outside. He agreed the three motor vehicles were repaired at Ken Stokes Smash Repairs.
I found nothing implausible in Mr Baranowski's evidence that Mr Bessounian's motor vehicle accidents were independent of him except for the one involving the Church Street off ramp for the M4. I do not find anything surprising in his having done what he could by promoting his business to other drivers to acquire smash repair work, including the motor vehicles involved in the Church Street M4 off ramp collision and from Mr Bessounian's motor vehicle collision outside Ken Stokes Smash Repairs. The proposition that that M4 off ramp collision was staged is difficult to accept when, on the evidence, an independent third driver was at fault.
The following cross-examination directed to the second defendant's case of staging motor vehicle accidents started with a question regarding repair of the first defendant's Honda. It was put to Mr Baranowski:
Q. I just want to give you the opportunity to be aware of this, do you just say it's a coincidence?
A. I don't know, because I don't know her.
Q. Well, Mr
A. Ivan didn't know what she's up too, the car Honda has been bought to my shop, I inspect the car in my opinion it was a repairable car it was very highly insured like you said, assessors from NRMA come in and said they will not repair the car because it's economy car not worth it, you say the car was double insured over or double, well to your information and NRMA assessor put a quote on the car basically double of the value of the vehicle as it's worth after accident, so who is right I don't know?
Q. Mr Baranowski, you are in the practice of staging and manufacturing motor car accidents, aren't you?
A. I never staged any accident but I can you very simple that I know about staging accidents done by NRMA assessors which has been notified - which has been notified to the police and police charged some of the assessors and unfortunately my men was also involved with this, do you want to say then I know the assessors but I have not been charged, NRMA assessor has been charged.
Q. Mr Baranowski you are in the practice of staging motor car accidents so that other persons or sometimes yourself can get the benefit of insurance claims?
A. I'm not, I'm on the business to repair the car not total loss the car the business of total loss of the car is NRMA not me.
Q. You are in the practice of staging motor accidents so that you can benefit from repairing cars damaged in the accidents?
A. No, I'm not.
Q. Isn't that correct?
A. I'm not.
Q. And Mr Baranowski you're in the practice of staging motor accidents where you know that certain personal injury claims will be brought as a result of the accidents, you know that don't you?
A. No, I don't.
Q. And Mr Baranowski you were involved of the organisation of a staged motor accident on 20 March 2012 between Samir Dib and Kelly Doxaratoras weren't you?
A. Sorry, what's the organisation you're talking about? You're referring to organisation which organisation?
Q. I'm not sure why you're saying that so I'll put the question again, Mr Baranowski you were involved in staging an accident, organising for an accident to be staged between Samir Dib and Kelly Doxaratoras on 20 March 2012, weren't you?
A. No, I wasn't.
Mr Baranowski displayed shock at the allegations of his participation in staging motor vehicle accidents. His volunteered reference (above quoted) to involvement of his workers with NRMA assessors in staging motor vehicle accidents, about which fact he was not challenged, might explain his reticence about giving evidence of his motor vehicle accident claims in this case where NRMA, as second defendant alleged that nature of fraud.
[12]
George Bessounian
Mr Bessounian arrived in Australia in 1971 and was educated here. He carried on business from Parramatta sometimes as a sole trader and sometimes as an employed financial broker. From 2002 his financial broking business was Mortgage Trendz Pty Ltd. He brokered finance and engaged motor vehicle accident insurance for clients. A heart attack caused Mr Bessounian to reduce his business commitments in a major way from 2008.
Mr Bessounian described his relationship with Mr Baranowski and Mr Baranowski's son Jacob Baranowski in terms entirely consistent with the evidence given by Mr Baranowski. Again, I accept that they were not friends in the sense of social engagement but maintained a fond networking relationship in the Parramatta, Granville region whereby they each referred customers and acquaintances to the other for mechanical and smash repair of motor vehicles and for finance, respectively.
The second defendant cross-examined Mr Bessounian, putting that he was engaged in the staging of the subject motor vehicle collision, on the basis that he had telephoned Mr Baranowski frequently between 12 March 2012 and 23 March 2012 and on the basis that he caused the first defendant to send her motor vehicle to Ken Stokes Smash Repairs for repair.
The telephone communications between Mr Baranowski and Mr Bessounian between 12 March 2012 and 23 March 2012 are not inconsistent with the following uncontested facts:
1. They shared a fond and close business networking arrangement;
2. Mr Bessounian introduced the repair of the first defendant's Honda motor vehicle to Mr Baranowski and caused it to be directed there, he having advised the first defendant that to be a sensible course to take; and
3. Mr Bessounian assisting the first defendant by liaising with Mr Baranowski during the quote and "write off" process involving the Honda.
Mr Bessounian openly explained that he assisted his friend the first defendant buy the Honda motor vehicle at an auction and drove with her to Ryde whilst assisting her during the course of that journey, with telephone enquiries regarding registration and insurance cover for the motor vehicle.
Mr Bessounian's evidence was, unremarkably, that the first defendant was offered market value of the Honda motor vehicle which was significantly higher than the price for which it had been purchased at auction.
Mr Bessounian said that he did not know on 20 March 2015 anything about the plaintiff travelling from Mr Baranowski's house to the motor vehicle accident. He denied having any involvement in the staging of motor vehicle accidents with Mr Baranowski and in particular the subject motor vehicle accident.
He said that he attended the scene when called by the first defendant. He described his friendship with the first defendant in March 2012 in terms of them being persons who discussed issues in their lives and that he had recently had personal issues in his own life. This is consistent with that which is written in the statements made by the first defendant to the insurance investigator (Exhibit 31) and the transcript of the first defendant's evidence given in the Local Court on 2 May 2013 (Exhibit 30).
During cross-examination Mr Bessounian initially denied any recollection of his having been involved in a motor vehicle accident on 29 May 2015 for which he made a claim upon his insurer. Exhibit 28 provides proof of that collision and claim for property loss damage on Mr Bessounian's insurer, he being the at fault driver.
I considered it improbable that he did not recall his having been involved in a recent motor vehicle collision in which he was at fault and in regard to which his car suffered damage requiring repair. It was repaired was Ken Stokes Smash Repairs: Transcript day 7, page 488, line 25.
Mr Bessounian did recall being involved in a three car motor vehicle accident on the 29 November 2015 very near Ken Stokes Smash Repairs. He recalled that one of the other drivers was Said Zreika. He denied knowing Mr Zreika before the accident. He denied knowing that Mr Zreika's car was repaired at Ken Stokes Smash Repairs but conceded it would not be odd because the collision occurred "right out the front of the shop": Transcript day 7, page 488, line 45. He denied recalling the name of the third driver, Mr Jack Sawah, involved in that motor vehicle accident. He did not recall the specifics of the repair of Mr Sawah's motor vehicle but repeated it happened outside Ken Stokes Smash Repairs.
Mr Bessounian recalled the motor vehicle accident on 23 August 2015 on the off ramp of the M4 at Church Street in Parramatta.
Mr Bessounian was involved in three motor vehicle collisions within a period of seven months during 2015, in relation to which motor vehicle accidents, all motor vehicles went to the business of his close associate Mr Baranowski, Ken Stokes Smash Repairs, for repair.
In regard to the 23 August 2015, Church Street off ramp motor vehicle accident in which Mr Baranowski's motor car, driven by him, was involved, both Mr Baranowski and Mr Bessounian gave oral evidence that they had been to look at a car in the Western suburbs and were returning in the direction of Ken Stokes Smash Repairs. Mr Bessounian said that he was just going to get some oil for his 1999/2000 model Audi A4 motor vehicle which was of 180,000 km usage, as a stopover on his route to visit a friend in Merrylands.
In relation to that 23 August 2015 motor vehicle accident, Mr Bessounian gave a statement to an insurance investigator, Mr Charles Bourke, on 18 March 2016. During cross-examination he conceded that the Statement which he gave to Mr Bourke was untrue in that he told Mr Bourke that prior to the motor vehicle accident he was travelling from his home in Quakers Hill and that he drove straight home from the motor vehicle collision.
In relation to those untruths, Mr Bessounian conceded that he knew them to be untruthful at the time and said that he telephoned Mr Bourke in order to correct those untruths but Mr Bourke had left his employment and was not contactable. Mr Bessounian said that in consequence he had never signed the statement.
He denied that he had untruthfully told Mr Bourke that Mr Baranowski had given him his card at the scene of the motor vehicle accident. He explained that Mr Baranowski had given him a card with Mr Baranowski's motor vehicle and licence details, relevant to making a claim on insurance, not his business card. Mr Bessounian conceded the obvious, that he had known Mr Baranowski for fifteen years at that time.
It was at this point that the evidence of Mr Bessounian was shown to be lacking credit on the issue of association between Mr Baranowski and himself in motor vehicle insurance claims. He gave evidence associated with the above stated untruths which caused me to consider him to be a witness whose answers were untruthful and perhaps consciously so. I refer to the following:
1. He had lied to Mr Bourke when he stated that he had never met either of the other two drivers involved in the motor vehicle accident on 23 August 2015: Transcript day 7, page 504, line 28 - 32. Obviously he knew Mr Baranowski well at the time.
2. His explanation for the untruth (a) above, was unsatisfactory, it was:
Q. Now, this is important. Can you tell his Honour why you didn't tell Charlie Bourke the truth?
A. Well, I didn't want to make things any more confusing than they were.
Q. What do you mean by that?
A. Because of - because of the fact that I know Bob so I thought it best if I just said, "Look, I don't know him. I don't know anyone," and they'll - you know, and, and that'll be that. I just want, just wanted - basically, I just wanted to finish off and get rid of Charlie.
Q. Why would it confuse things if you knew Bob?
A. I don't know, just, you know, the - I thought that was - I thought that's what he would do so I thought I'd just not mention it.
Q. What do you mean, that that was what you thought he would do?
A. I thought he was just in there. I, I thought the - that he would probably start delving more and looking and coming up with - you know, putting two and two together and coming up with a three.
1. If the motor vehicle accident had been an innocent coincidence of two friends driving their own vehicles in connection with their common travel route; there was no cause to lie;
2. Mr Bessounian's evidence was given as if he were consciously trying to hide information. The following passage of the evidence is one which gave me that impression:
Q. What did you think Charlie would start looking for?
A. I don't know.
Q. Well, what did you have in mind? It was your decision not to tell him the truth. What were you worried about him finding?
A. Yeah. Well, at the time, I said I didn't know but I did not ultimately turn around and, and, and sign this document.
HIS HONOUR
Q. Sir, the question asked of you was, what were you worried about Charlie finding?
A. It was nothing. I wasn't worried about him finding anything. In fact, I - apart from the fact that the investigators just dig and look for things, make up things.
WATSON
Q. What were you worried about him making up or finding?
A. There was nothing specifically - specific to worry about.
Q. Were you trying to hide the connection between yourself and Bob Baranowski?
A. No, I wasn't.
Q. Well, why didn't you tell them about it?
A. Again, I repeat, I did not sign this document. I was going to get all that fixed up.
1. In other evidence, Mr Bessounian initially said that he was not aware that Mr Baranowski was making an insurance claim and yet, inconsistent with that answer, he said that he considered the insurance investigator Mr Bourke to be interviewing him because Mr Baranowski was making a claim but that he did not know what type of claim.
2. Unsatisfactorily, he answered that he provided untruthful answers in order to finish the interview because it was raining outside the McDonald's café in which it was being held.
The First Defendant lived in Winston Hills.
Mr Bessounian said that when he arrived at the accident scene to assist the first defendant she was crying and shaking. He had come from his home which at that time was either at Schofields or Quakers Hill nearby. She was sitting in her car when he arrived. Three tow trucks were present when he arrived. The police arrived after him. He saw only the two vehicles involved in the motor vehicle accident and emergency services vehicles. After a while the first defendant calmed down and stopped crying. She said that she suffered pain pretty much all over.
He saw the ambulance officers treat the plaintiff whilst he was seated in his car but he did not see the plaintiff close up.
He said that the first defendant was an anxious person. She was always anxious. He recalled that she took Valium for her anxiety. He drove the first defendant home. He said to her words to the effect: "Don't worry. I know a reputable panel shop and we'll organise the car to get there and they will look after you." The next day he telephoned Mr Baranowski, and on his recommendation the first defendant directed her car be taken to Ken Stokes Smash Repairs. This was all done over the phone.
Mr Bessounian denied having ever had contact with the plaintiff or of having ever heard of him before 20 March 2012. There was no evidence to the contrary. The only other time he had seen the plaintiff was in the foyer of the Local Court in May 2013 attending the hearing of the first defendant's case to recover property damage. He had never spoken to the plaintiff in any manner.
In relation to the August 2015 motor vehicle accident, Mr Bessounian said that there were no passengers in any cars. No other motor vehicle stopped. Police did not attend. He only suffered a few bruises and did not make a personal injury claim. He later claimed for property damage on Mr Baranowski's policy but the insurer advised him to make the claim on the insurer of the third car because Mr Baranowski was not at fault and that is what he did. The repair to his car cost $8,000.
In further cross-examination by Counsel for the second defendant, Mr Bessounian said that he could not recall but it was possible that the first defendant had called him on 20 March 2012 at 8:43 am, 9:41 am, 8:03 pm, 8:06 pm and 9:55 pm. It was the last of those calls which caused him to attend the motor vehicle scene.
[13]
Messrs Baranowski and Bessounian - Impression
Mr Baranowski gave some evidence against the interests of the plaintiff. This was the evidence that he did not notice a deterioration in the plaintiff's interest in his birds nor in his dedication to maintaining his birds following the motor vehicle accident. In the plaintiff case, particularly on the evidence of Mona Dib that depreciation and disinterest in regard to maintaining the birds was described. On the other hand, the plaintiff's brother Mr Mohamed Dib, it will be seen, also gave evidence that the plaintiff's interest in and maintenance of his birds was maintained after the motor vehicle accident. The plaintiff's interest in his birds and motivation to maintain them was an important point because his case for damages was described as mainly based on his depression which it was said was caused by the motor vehicle accident.
The concerning parts of the evidence of Mr Baranowski and Mr Bessounian, indicating that their evidence should be considered with caution unless corroborated by other evidence, concerned their involvement in motor vehicle accidents and in the making of insurance claims. I have observed that Mr Baranowski's reticence in that regard might have been stimulated by the experience of police action investigating NRMA insurance assessors and some of his workers in the staging of motor vehicle accidents. It was not put to him that he personally had been so investigated, nor was he challenged on that evidence.
What is significant is that the second defendant did not establish through the cross-examination of Mr Baranowski and of Mr Bessounian that either the plaintiff or the first defendant engaged in a conspiracy to fraudulently stage the motor vehicle accident in order to benefit though insurance claims. All that can be weighed in favour of the second defendant case of proof of the fraud is that the reticence of Mr Baranowski in giving evidence and the proved willingness of Mr Bessounian in relation to his motor vehicle claims to make untruthful statements showed each of them to be witnesses whose evidence deserved cautious treatment in relation to motor vehicle accidents and insurance claims and because they were respectively associated with the plaintiff and with the first defendant whose cars were taken to Ken Stokes Smash Repairs for that business to have the opportunity of gaining the work of repairing them; there was a level of association, coincidental or otherwise, to be weighed in consideration of the united force of all of the circumstances proved on the evidence.
[14]
Has the Second Defendant Satisfied its Burden of Proof of Fraud?
The allegation that the plaintiff participated in a fraud with Mr Baranowski and through Mr Baranowski and Mr Bessounian, with the first defendant is an allegation that the plaintiff engaged in conduct of high level civil wrongdoing. In order for the second defendant to succeed in proving that fraud, the evidence must provide clear and cogent proof satisfying the balance of probabilities reflecting the conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct. A court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct; s 140(2) Evidence Act 1995 (NSW); Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 per Leeming JA (McFarlane and Emmett JJA agreeing) at [105].
The second defendant has conceded that there is no direct evidence of either the plaintiff or the first defendant participating in the organisation of staging of the collision. That is no direct evidence that the plaintiff organised with Mr Baranowski a staging of the collision or was organised by Mr Baranowski in that endeavour. Indeed there is no direct evidence of the plaintiff communicating with Mr Baranowski about the motor vehicle accident at all. There is no direct evidence of Messrs Baranowski and Bessounian organising the motor vehicle accident.
The second defendant's case of fraud is entirely circumstantial. What is required is evidence giving rise to a reasonable and definite inference; meaning evidence that does more than give rise to conflicting inferences of equal degrees of probability. For the second defendant to succeed, it is not necessary that the proof achieve a level of entire satisfaction of the court of the fact to be found: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1. At 5 the High Court (Dixon, Williams, Webb, Fullagar and Kitto JJ) said:
"The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypothesis consistent with innocence, while in the latter you need only circumstances raising a more probable inference of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture [authority referred to]. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.
That statement has been cited with approval on many occasions: see Trustees of the property of Cummins v Cummins (2006) 227 CLR 278; [2006] HCA 6 at [34], fn 50 (Gleeson CJ, Gummow, Hayne, Heydon, Crennan JJ); Sharma v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWCA 307 at [20]. In Sharma at [66] the Court of Appeal approved from the reasons of Ipp JA in Palmer v Dolman [2005] NSWCA 361 at [41] (with the agreement of Tobias and Basten JJA) the following principles as having "become well established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud."
1. "the jury [i.e. fact-finder] must consider "the weight which is to be given to the united force of all the circumstances put together" [Belhaven v Stenton Perrage (1875) 1 App Cas 278 at 279 (Lord Cairns), quoted with approval in Chamberlain v R (No 2) (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)].
2. The onus of proof is only to be applied at the final stage of the reasoning process: "[i]t is erroneous to divide the process into stages and, at each stage, apply the same particular standard of proof. To do so destroys the integrity of [a] circumstantial case" [Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 129 (Winneke P)].
3. The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful.
4. Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw."
The second defendant's case against the plaintiff, as conceded by it, is not based on direct evidence. On the evidence this is so of all stages of the conspiracy alleged:
1. Between Messrs Baranowski and Bessounian;
2. Between Mr Baranowski and the plaintiff; and
3. Between Mr Bessounian and the first defendant.
What is therefore required for the second defendant to succeed in its case of fraud against the plaintiff is evidence giving rise to a reasonable and definite inference; meaning evidence that does more than give rise to conflicting inferences of equal degrees of probability. For the second defendant to succeed, it is not necessary that the proof achieve a level of entire satisfaction for the court of the fact to be found; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Mutual Community General Insurance Pty Ltd v Khatchmanian (2013) ANZ Insurance cases 61-974; [2013] VSCA 144.
I have determined that it would be a breach of procedural fairness to find that the first defendant participated in the alleged fraud. If I be wrong in that determination; then, the second defendant's submission that the first defendant's testimony in the earlier Local Court proceedings and recorded statements in evidence, are unreliable, is a submission given in the absence of the first defendant having enjoyed the opportunity in this hearing to respond in cross-examination. In those circumstances the court should be reluctant to accept the second defendant's submission, save for a circumstance of clear unreliability shown to be in that transcript of testimony and in those statements. The second defendant has directed attention to the first defendant's narrative of the incident that she was unsure of her direction, unsure of whether her vehicle was stopped or moving slowly and that she changed her mind from turning right to turning left at the intersection. With respect, none of those propositions are outside the everyday experience of any of us who have been unsure of our route of travel when driving. Otherwise, in relation to the first defendant's narrative, on balance, the expert crash reconstruction opinion evidence tendered by the defendant and commented upon through the report of Mr Jamieson, do not reveal falsity. The first defendant's narrative of how the collision occurred contained in that documentary evidence is not inconsistent with the plaintiff's evidence once one accepts that the effect of her evidence is not to insist that her motor vehicle was stationary. Indeed, her indecision of whether to go left or right at the intersection of Romulus Street and Junction Road provides a reason to discount a notion of confidence as to the precise angle of her motor vehicle in relation to each of those streets in the expert analysis interpreting the angle of impact of the two vehicles.
I am not persuaded to accept the second defendant's submission that the exhibited record of statements of the first defendant show her to have given descriptions of the collision which were consciously unreliable for the purpose of participating in the alleged fraud.
It is a primary submission by the second defendant in its case on fraud that the evidence given by the plaintiff was unreliable. The medical evidence supports the plaintiff's complaint that at the time of giving evidence he was suffering from a depressive condition. I observed him to be a witness of apparently modest intelligence and little sophistication. I have stated my observation that the plaintiff's claims of forgetfulness in parts of his evidence were unacceptable and, in my opinion, he was reluctant to energetically test his recollection. That observation was made in a process toward and for the purpose of assessing the reliability of his evidence as proof of fact.
As can be seen the examples to which I have pointed show a lack of sophistication and for that reason I do not find the plaintiff to be a "reluctant witness." His reluctance to test his recollection when answering questions was not of the character of breach of duty of a witness to answer questions responsibly such that it was tailored by deliberate non-responsive suppression: see discussion by Heydon J Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [62] to [67]. I apply what was said by Emmett JA in State of New South Wales v Talovic [2014] NSWCA 333 at [143]:
A party witness should not be criticised for deliberately withholding the truth in a fashion crucial to dismissal of that parties claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party witness must have been given the opportunity to deal with the criticism [Kuhl's case referred to]. Similarly, a party witness should not be criticised for dissembling or, in effect, giving false evidence crucial to the resistance of a claim against that party, unless those conditions are satisfied.
In relation to his description of the motor vehicle collision, I have not found the plaintiff to have misdescribed events. His feigned lack of recollection and reluctance to willingly concede that the driver at fault in the 2010 motor vehicle accident lived next door to the home his family owned at 20 Mons Road, Granville was not a refusal, ultimately, to give truthful evidence. The plaintiff was aware of the allegation of staging motor vehicle accidents being made in these proceedings. Whilst he is to be criticised for not having freely and willingly admitted that his neighbour collided with him, given the obvious availability of insurance records for the purposes of these proceedings, it was not a sophisticated and deliberate failing to comply with his obligation to tell the whole truth beyond showing his evidence to be worthy of cautious treatment as I have done. His reference to the purchaser "Deeb" as a "friend" when in fact he was a cousin whose surname is equally well pronounced "Dib" falls into the same category. His evidence shows and, perhaps more particularly so in relation to his evidence on damages, that he was a witness who was conscious to advance his case but he did not give it in a manner worthy of description that he deliberately failed to comply with a duty to tell the truth.
My finding that the plaintiff's evidence in relation to his claim of lost opportunity of employment with SGC Joinery, supported by the unsatisfactory evidence of Mr Al-Tawil, was a reconstruction, consciously or unconsciously arrived at, in combination with my other observations criticising his evidence as unreliable in respect of damages and his 2010 motor vehicle accident claim; does not rise to persuade me more probably than not of his participation in the serious fraud of staging the motor vehicle accident alleged. The second defendant submitted that I should consider the plaintiff's evidence so unsatisfactory as to find him to be a dishonest person. It is not the role of the court to make such a finding. The faults with his evidence giving do not at law create a positive inference that his claim is fraudulently brought by him.
I accept that the plaintiff understated the closeness of his relationship with Mr Baranowski. He had worked for Mr Baranowski and Mr Baranowski had attended the wedding of the plaintiff and Mona. Their relationship continued through their interest in bird breeding. I do not consider there to be anything unusual or inferring a participation by the plaintiff in fraud, that he preferred, or through his wife Mona contacting Mr Baranowski she preferred, that his motor vehicle be repaired at Ken Stokes Smash Repairs. On the contrary, given their relationship and that the plaintiff had worked at that business; it does not seem to me to be out of the ordinary that he or she would choose to do so.
I accept that Mr Bessounian was in a close and long standing friendship with the first defendant at the time of the motor vehicle collision; but her calling him from the scene of the collision is in accordance with that relationship and her reliance upon him to organise the repair of her motor vehicle is also in accordance with that relationship. These facts, in my opinion, are not indicative of fraudulent organisation toward the staging of the motor vehicle collision.
I find nothing out of the ordinary in Mr Baranowski's admission that he would do what he could, including at the scene of motor vehicle collisions in which his own motor vehicle was involved; to encourage other involved drivers to direct their repair work to his business. I see nothing out of the ordinary in Mr Baranowski and Mr Bessounian referring persons to each other's businesses as that would be in accordance with their small local business style networking relationship.
That the plaintiff's motor vehicle and the first defendant's motor vehicles were insured for agreed values above that for which they had been purchased is an everyday experience for motor vehicle owners. These are not facts more consistent with the existence of a conspiracy to stage a motor vehicle accident in order to defraud insurers than with the plain everyday circumstances of the second hand market and insurance cover available for motor cars.
The evidence of prior motor vehicle collisions involving Mr Baranowski and Mr Bessounian including the referral for repair of motor vehicles from those collisions to Mr Baranowski's business is not evidence of a history of conduct involving the plaintiff or the first defendant. In any event, the collision at the M4 exit involving Messrs Baranowski and Bessounian was a collision caused by a third driver, not shown to be a participant in any plan with them to stage a motor vehicle accident. That Mr Baranowski has made claims for personal injury damages does not amount to staging of motor vehicle accidents.
I might not have covered all of the matters exhaustively to which the second defendant went in cross-examination because I do not consider it necessary to do so. That the motor vehicle collision occurred when the plaintiff was in the course of a journey involving his bird breeding hobby association with Mr Baranowski is not, on the evidence, shown to be more than coincidence.
I do consider the weight which is to be given to the united force of all the circumstances put together. I have described for the purposes of responding to the second defendant's submission, the factual matters in the evidence to which it points for the inference of fraud. The whole of the circumstantial case as a united force of those propositions, does not in my opinion infer that the plaintiff participated a fraudulent conspiracy with Mr Baranowski or otherwise in the staging of the motor vehicle collision. In my opinion, the second defendant has not proven a cogent case of fraud. The matters to which the second defendant points in the evidence amount to not more than speculation, whether taken individually or as a whole.
[15]
Damages
By Statement of Particulars Personal Injury Proceedings filed 15 October 2015 the plaintiff identified his injuries and disabilities as follows:
Particulars of injuries received
Injury to cervical spine
Injury to lumbar spine
Injury to left shoulder
Psychological injury - anxiety and depression
The plaintiff suffers from the following ongoing disabilities
Pain and discomfort in the neck
Pain and discomfort in the back
Inability to bend, lift and twist
Loss of enjoyment
Loss of strength in the arms
Inability to work above shoulder height
Need for ongoing analgesic medication and physiotherapy
Anxiety
Depression
Loss of self-esteem
Need for ongoing cognitive therapy
Need for ongoing psychiatric medication
Disruption of pre-injury recreational and social activities
Inability to work
The plaintiff pressed mental harm as his most significant injury and disability.
Prior to the motor vehicle accident the subjects of the plaintiff's hobbies were cars, birds and chickens. His sports included soccer with his mates, going to the gym and looking after himself. He enjoyed activities in the park with his children.
The history set out under Background above records that the plaintiff and Mona had been married for about 14 years prior to the motor vehicle accident. Each of them described their marriage over that period as normal. Their union produced four children, the eldest of whom was aged 17 years and the youngest aged 7 years at the time of the hearing. But for about two years fulltime employment with Tip Top Bakery between 2002 and 2004 (the inconsistent evidence might indicate up to four years) the plaintiff's pre-motor vehicle accident employment was sparse including a short period as a spray painter for Mr Baranowski at Ken Stokes Smash Repairs, about 11 days working for Mr Al-Tawil driving and assisting in establishing joinery between about 2008 and 2009. There is a mention of some security work, not described in the evidence. Generally, the plaintiff had been unemployed and on the disability pension and then NewStart for eight years prior to the motor vehicle accident due to his unfitness for work on account of his anal fistula condition which condition will never repair.
These reasons have already gone to evidence concerning the plaintiff's income from his pension, his dealing in second hand motor vehicles, his sporadic work other than at Tip Top Bakery and in particular his claim that he was unable to take up fulltime employment with Mr Al-Tawil commencing 2 April 2012 because of his injuries, has been rejected. The evidence does not support a finding of earnings from his trading in motor vehicles. Both the plaintiff and his wife described that activity as a hobby.
In summary, prior to the motor vehicle accident the plaintiff enjoyed a normal married and family life with Mona and his children, his financial contribution to the family being his Centrelink payments, whilst Mona worked full time working in the law office of Sayan and Associates and later in establishing her sole trader practice as a legal conveyancer having ambitiously studied part-time including at Macquarie University whilst working.
The plaintiff's evidence of his condition following the motor vehicle collision was to the effect that he could not do things he was able to do before such as the shopping and basically could no longer help out at all. He said that he was in too much pain in his neck, back and left shoulder to help with the children as he had done before whilst Mona worked. The plaintiff said that whilst Mona was in Lebanon between 22 March and 1 June 2012 his sister Rola helped him at home. She was then unemployed with a one year old daughter. He said that albeit he had lots of friends, none of them helped him in the house.
The plaintiff said that he initially attended Dr Ismail at his local medical practice and thereafter continued to consult his regular general practitioner Dr Abdalla of that practice: Transcript day 1, page 27, lines 16 - 24. The attendance on Dr Ismail is not recorded in the clinical notes of that medical practice: Exhibit T, pages 109 - 110; but the Westmead Hospital Emergency Department Discharge Summary is directed to Dr Kenan Ismail. The plaintiff did not give the date of his consultation with Dr Ismail.
The plaintiff said that his chest pain took a few weeks to go away, but that his neck, shoulder and back pain remained and he continued to see his doctors for those injuries. He said that he had trouble sleeping, having horrible dreams and sometimes hearing voices when nobody was there including sometimes when he was alone in a car. He complained that it would take him a long time to get off to sleep, sometimes going to bed at 11pm and not being able to sleep until 3am or 4am because of thinking and of pain in his low back radiating to his right leg like a numbness 90% of the time. He complained that his pain was so bad that sometimes he threw himself of the floor because of it and that it never went away.
The plaintiff said that the pain in his neck and left arm numbness as well as pain in his left shoulder remain, especially when he looked to either side. The plaintiff complained that he has difficulty raising his left arm and had lost power lifting. He complained that his reflection in windows and mirrors showed that he walked differently because of pain. He claimed that he was impaired for self-care and domestic tasks.
In cross-examination it was put to the plaintiff that he was grossly exaggerating the physical effects of the motor vehicle accident. He denied the allegation but he conceded that he was able to get out of bed by himself, walk to the bathroom, shower and wash himself. He said that he is not able to do so as well as before. He could clean his teeth, shave and comb his hair and dress himself but again not as easily as he did before. He said he could put on his shoes and socks, walk to the kitchen, turn on taps, turn on the stove and oven and get out pots and pans. He said "but not as easily as before". He did not know whether he could fry an egg or cook a simple meal because he had not tried. He agreed that he could put bread in a toaster and could make himself a sandwich, if it was necessary.
The plaintiff and Mona gave evidence that during the day both before and after the motor vehicle accident he spent several hours with his friends on most days. The plaintiff attended his friends at the fruit shop and most days spent several hours socialising at the local service station. He would also visit his friends in the park.
Mona said that prior to the accident the plaintiff assisted in the home as follows: he would pick up the children, play with the children, make a light lunch, perform light housework and sometimes vacuum. He hung out the washing. She said that the plaintiff did all of the outside chores which included maintaining their plum trees, lemon trees, and orange trees, watering the garden every day and weeding. Prior to the motor vehicle accident they already had a contractor mowing their lawn.
Mona continued to work with Sayan and Associates during January to March 2012 on a part-time basis. The plaintiff cared for the children when she was at work and would shop for what Mona needed to cook dinner. At that stage the youngest two children were in day care two to three days per week.
In cross-examination Mona conceded the accuracy of the following which was put to her from the report of Ms Piebenga, Consultant Occupational Therapist dated 17 May 2017 (Exhibit 14):
1. Prior to motor vehicle accident Mona performed the shopping. The plaintiff only shopped for incidentals if Mona needed him to get things, a couple of times a week.
2. Mona performed the weekly cleaning and heavy cleaning including sweeping, vacuuming, mopping, dusting and the bathrooms. The children assisted with cleaning work including heavy cleaning work before the motor vehicle accident.
3. The plaintiff performed about 30 minutes per week cleaning mirrors in the four bedrooms and two bathrooms. Once per month the plaintiff cleaned the external windows which took about three hours.
4. The plaintiff performed the gardening and took out the garbage.
5. Mona performed the laundry and the plaintiff hung out and brought back in four loads of laundry per week.
6. Neither the plaintiff nor Mona ironed.
Whilst Mona was in Lebanon at first the plaintiff bombarded her with telephone calls about the insurance and he wanted her to come home soon. She said it was not a holiday because he was constantly ringing. She would call him back and sometimes he would not respond: Transcript day 3, page 169, lines 41-50. Even after Mona had organised for Mr Sayan to take control of the insurance claim, the plaintiff would not take her calls: Transcript day 3, page 170, line 34.
Mona described a change she observed in the plaintiff on return to the matrimonial home on 1 June 2012 including the following:
1. He was dishevelled like he wasn't clean and he dressed in mismatched clothes;
2. He was stiff and uncomfortable;
3. There was a change in his relations with Mona. Mona described this change as a "rift" when she gave the following evidence:
Q. Apart from his appearance in that way, did you notice anything about his movements when you returned back from Lebanon?
A. Look, he was very stiff. He was uncomfortable. He had changed. And as - and I said, like, he didn't take calls when I was overseas so I was really upset with him. And he gave off this - I wouldn't say - it's not attitude but l just got this feeling like there was a rift already, and it was like a distance between us. And it was a short period but a lot had happened in those nine weeks. And I just felt a big change in him. Like, there was a huge change.
Q. Had you ever experienced this lack of communication with him in any prior time?
A. Oh my God, no. He used to ring like every half hour, "How are you? What are you doing?" Like, I would - I used to say to him, "I used to get more calls from you than I would get my boss coming in the room to see me", and stuff, so he was - on average, 10 calls a day.
Mona described herself feeling relief when the plaintiff went out of the house which he did after sleeping until after midday. She described their reduced sexual relations saying that prior to 20 March 2012 they enjoyed intimacy twice per week, after her return from Lebanon on 1 June 2012, once per week and over the last two years before the hearing intimacy has been non-existent. Her description of the plaintiff's behaviour toward her and the children causing her to leave on 8 July 2012 was as follows:
Q. How was the relationship between you and Mr Dib in that preceding five week period, that is, from 1 June to 8 July?
A. He was very snappy. He would yell for no reason. He would start a fight over nothing He would nit-pick on small things that were very irrelevant and, you know, didn't want anything to do with the children, didn't help at all, sleeping pattern was really bad. It was just, yeah, a whole 360 change.
Significantly, the evidence of the plaintiff's brother Mr Mohamed Dib described the plaintiff as unchanged in mood and behaviour and in his attention to his personal grooming, the matrimonial home and even the care of his pet birds during the period that Mona was in Lebanon between 22 March 2012 and 1 June 2012.
Mr Mohamed Dib gave evidence on Day 4 and Day 6 of the hearing. He has maintained continual employment for 17 years as a truck driver with NIMCO couriering supermarket goods to a number of supermarkets around Sydney.
Mr Mohamed Dib was until before 2004 owner of 327 Clyde Street, Granville with the plaintiff and Mona. He then purchased the plaintiff's and Mona's share and became the sole owner of that property. Since the plaintiff moved out of the matrimonial home on 10 May 2017 he has lived in the main house on 327 Clyde Street with his sister Rola, her husband Marwan and their three children. Mr Mohammed Dib lives in the granny flat.
Mr Mohamed Dib and the plaintiff have always been very close brothers. Prior to the motor vehicle accident they would see each other between two and five times per week. Their families would go to the park (before Mr Mohamed Dib's divorce), share dinners and visit each other's homes.
Following the motor vehicle accident Mr Mohamed Dib visited the plaintiff at his home between 22 March and 1 June, whilst Mona and the children were in Lebanon. He said that the plaintiff was living alone. The first time he visited the plaintiff was only a few days after Mona left and therefore only a few days after the motor vehicle accident. On those visits he stayed for a few hours. He said the plaintiff sat on the couch and that he appeared normal: Transcript day 4, page 309, lines 10-15. Included in Mr Mohamed Dib's observation of normality was the plaintiff's attention to his birds and his interest in his yard. Mr Mohammed Dib did not notice any change in the plaintiff's manner, movement or mood. This is consistent with the history recorded by Dr Cottrell-Dormer, psychiatrist in the Cumberland Hospital clinical notes (Exhibit T pp 124-156) as given by the plaintiff that his mood did not change until the matrimonial problems erupted after the return of Mona from Lebanon in June 2012.
When Mr Mohamed Dib visited the plaintiff at 20 Mons Road, Granville between 22 March and 1 June 2012 he found the house to be in a mess. He said that the floors were dirty and the couch was dirty and that there were dishes everywhere: Transcript day 4, page 309, lines 25-36. However, given Mona usually performed the cleaning and housekeeping this evidence is not indicative of a change in the plaintiff. Mr Mohamed Dib did not describe it as indicating a change in the plaintiff.
The plaintiff's sister, Mrs Rola Dib's evidence also went to the period 22 March 2012 to 1 June 2012 when Mona was overseas. She said that she visited the plaintiff once per week during this period and spent 4 - 5 hours washing dishes, fixing the bed and cleaning the house.
Her evidence then described the change in the plaintiff, consistently with that described by the plaintiff and Mona in that she said that whereas he used to be well groomed, clean and showered and perfumed when he went out, whilst Mona was in Lebanon the plaintiff would sit idle and not take care of himself. She said that he looked 50 - 60 years of age (he was only 40), she said that he was not well groomed and that she would tell him to shower and to wear clean clothes. She said that he was not communicative. After Mona and the four children returned from Lebanon she observed the plaintiff only when she visited the home or when he came to visit. She said that his downtrodden appearance remained the same as did his refusal to talk.
It is difficult to find significance in the fact that Rola cleaned the plaintiff's matrimonial home during the absence of Mona because on the whole of the evidence, the plaintiff did not perform much of the domestic duties when Mona was at home. That she found the plaintiff to be unkempt compared to when his wife was at home may have more significance but for the evidence of Mr Mohamed Dib who attended much more regularly, and said he did not notice any change in the plaintiff. Plainly the evidence which they gave of their impressions of the plaintiff differed.
The plaintiff timed with the motor vehicle accident his change from a father who played with his children in the park to a father who because of pain, lethargy including sleeping until 1pm no longer did so. He said that when he was living at home after his children returned on 1 June 2012 from Lebanon he would ask them and his wife to do things which he previously did such as asking his daughter and son to feed his birds. He said that whereas prior to the motor vehicle accident he had maintained pride in his presentation of dress and kept up with shaving; after the motor vehicle accident he showered only a couple of times per week and did not maintain his appearance.
Plainly this evidence conflicts with the description of the plaintiff given by his brother Mr Mohamed Dib.
As already observed, Mr Baranowski did not notice that the plaintiff's interest in his hobby of bird breeding reduced.
The plaintiff claimed that his physical and mental health has not improved but, in fact, deteriorated. He blamed his inability to sleep, late waking, depression and forgetfulness for his failure to help his wife Mona and to adequately contribute to help with the children. He said those failings resulted in firstly her leaving him about five weeks after her return with the children to the home from Lebanon and on their later reuniting, the failure of him to be able to restore normal martial relations with her. The evidence of the plaintiff's witnesses is of him waking at about 1pm, being not communicative, arguing with Mona and not contributing in domestic life.
During cross-examination the plaintiff gave the following description of his capacities domestically post-accident (Transcript day 2, page 117, line 46 - page 118, line 26):
Q. Can you make yourself a sandwich?
A. INTERPRETER: If necessary, yes.
Q. Sorry?
INTERPRETER: He said, "If it is necessary, yes."
WATSON
Q. Well, you've got to eat if you're hungry and you need some food. You can make yourself food, can't you?
A. INTERPRETER: Yes I still have hands. I can do things.
Q. And you can bend over and pick up your dirty shirt, and underpants and socks, can't you?
A. INTERPRETER: I don't do that.
Q. I'm not asking you whether you do it or not. Could you bend over and pick up a sock and walk with it toward a clothes washer, Mr Dib?
A. INTERPRETER: If I have to do it, I do it.
Q. Of course you can do it, can't you?
A. INTERPRETER: If I have to do it, I do it.
Q. You can also get the clothes out of the clothes washer and perhaps even put them into a dryer, couldn't you?
A. INTERPRETER: I never did that.
Q. No, I'm not asking whether you did it or not. Mr Dib, you could do it, couldn't you?
A. INTERPRETER: Not easy.
The plaintiff conceded that he still drives a motor vehicle almost daily albeit he said that he was anxious in cars. The vagueness of his answers in relation to his capacities both physical (driving in the following example) and mental state is depicted in the following evidence (Transcript day 2, page 119, line 3 to page 121, line 36):
Q. To the shops?
A. INTERPRETER: On the road, yes.
Q. To the shops?
A. INTERPRETER: Yes.
Q. Do you go into the shops?
A. INTERPRETER: Sometimes.
Q. Do you buy things?
A. INTERPRETER: Rarely.
Q. Do you carry those things out of the shop back to your car?
A. INTERPRETER: Not all the time.
Q. Not all the time? What, do they levitate into the car or how do the things get from the shop into the car?
A. INTERPRETER: Not like before and a little--
Q. No, you see, you're missing my point, Mr Dib. You've got to answer my question, not some other question. You are capable, well and truly capable, of doing all of the ordinary things in an ordinary life, sleeping, rising, attending to your toilet, making simple meals, cleaning up after yourself, washing your dirty clothes, going to the shops to buy your needs, you can do all of that, can't you?
A. (No verbal reply)
Q. You can, can't you?
A. INTERPRETER: I can't do everything.
Q. I didn't say that. Would you listen, please, to my question? Consider it important. You can do all of the ordinary things in an ordinary life - get out of your bed, attend to your shower and teeth, dress yourself, wash your dirty clothes, make simple meals, go to the shops when necessary, clean up after yourself. You can do that, can't you?
A. INTERPRETER: Yes, but not easy.
Q. And your mental problem. You've got this serious depression, you say?
A. INTERPRETER: Yes, more than the pain.
Q. It's worse than the pain, isn't it?
A. WITNESS: Yes.
Q. Does it mean you have no friends?
A. INTERPRETER: Not necessarily I don't have friends, but I don't trust myself any more.
Q. You go to the shops regularly and meet with a group of men, don't you?
A. INTERPRETER: Yes. Sometimes.
Q. When you say "sometimes", most days of the week. Isn't that right?
A. INTERPRETER: Yes, sometimes.
Q. And you converse with them, don't you? Chat with them?
A. INTERPRETER: Sometimes.
Q. Of course you do. I'm talking about virtually every day of the week. Do you accept that?
A. INTERPRETER: Sometimes, yes.
Q. You've got a full social life, don't you, Mr Dib?
A. INTERPRETER: Not like before at all.
Q. You've still got whatever it was like before, whatever you've got now is still a full social life, isn't it, Mr Dib?
A. INTERPRETER: If you knew my life before, you could've noticed any difference.
Q. I want to talk to you about your life now, you see, Mr Dib. You've got a full social life with friends. You meet at coffee shops, at a local service station, in a local park. You meet them on a near daily basis, don't you?
A. INTERPRETER: Yes, I said sometimes.
Q. And have you heard of Facebook, Mr Dib?
A. INTERPRETER: Yes.
Q. What have you heard about Facebook? Do you know how to do it?
A. INTERPRETER: Yes.
Q. Are you a member of Facebook?
A. WITNESS: Yeah.
Q. Do you communicate with friends on Facebook?
A. INTERPRETER: Sometimes.
Q. And when you say "sometimes", is that, what, every few days?
A. INTERPRETER: Sometimes every day, sometimes every few days.
Q. On Facebook with friends?
A. INTERPRETER: Yes, sometimes.
Q. You're looking very sad there, Mr Dib. You're looking very sad as though you're very depressed. Are you feeling depressed now?
A. INTERPRETER: As you can see.
Q. Are you always like that, Mr Dib? For example, if somebody filmed you while you were in the local service station with friends? Would you look like you're looking now, Mr Dib?
A. INTERPRETER: Sometimes.
Q. What do you mean "sometimes"? Sometimes you feel okay, do you, Mr Dib?
A. INTERPRETER: Yeah, every time is different.
Q. There is a service station near your home. Correct?
A. INTERPRETER: Yes.
Q. Do you go there quite often, Mr Dib?
A. INTERPRETER: Yes.
Q. Do you walk there from your home?
A. INTERPRETER: Sometimes, yes. I try to walk.
Q. And some days, are you capable, Mr Dib, of just walking normally with no limp, at a normal pace?
HIS HONOUR: Transcript to show counsel walking behind the bar table in a normal manner.
Q. Sometimes can you do that when walking down to the service station, Mr Dib?
A. INTERPRETER: Not all the time.
Q. No, not all the time. Sometimes can you just walk in a normal way just like a normal person your age? No limp, normal speed? Sometimes can you do that?
A. INTERPRETER: No, I have pain. I can't walk.
Q. No, you can't. You can never do that. So if there's film of you doing that, that would be wrong, would it?
A. INTERPRETER: No, I said sometimes, yes.
Q. Sometimes you can just walk like a normal man of your age. Correct?
A. INTERPRETER: I don't think so.
The question about which the plaintiff was properly challenged during cross-examination was whether his depression resulted from the motor vehicle accident or from the breakdown of his marital and family relations. I have already addressed that the evidence of Mr Baranowski and of the plaintiff's brother Mr Mohamed Dib was that they did not notice a change in the plaintiff's mood or habits prior to the return of Mona and the children from Lebanon on 1 June 2012. It will be recalled that the plaintiff did obtain the male parrot from Mr Baranowski about one month after the motor vehicle collision. That evidence is consistent with his having maintained an interest in his bird breeding in late April 2012.
Following Mona separating from the plaintiff and taking the children with her on 8 July 2012, the plaintiff self-harmed by superficially slashing his wrists and calling an ambulance. Before the ambulance arrived he drove himself to hospital. That significant event caused there to be documented expert psychiatric observation of the plaintiff in a mental health facility. These reasons come to those significant medical records later. They resumed co-habitation on 23 July 2012.
Mona commenced the start-up of her own business on 1 July 2012 by initiating the application for her license, registration of business and, insurance, and other administrative, start-up matters. She commenced from 20 Mons Street, Granville late in 2012. At the time she was receiving the Parenting Payment and the Family Tax Benefit for the children. She said that her business was not profitable for about the first two years.
Mona said that the plaintiff's habits worsened in 2013. I understood her evidence in this regard to be that whilst his domestic habits and lack of attention to the family did not improve, what worsened was his resentment of her working. Mona described it as follows:
Q. What worsening do you say you noticed in 2013?
A. He was - his habits were the same, but because I was running my business from home, it got to the point that he was - every time a client would come, he would stand at the door and stare at these clients and give them this deadly glare kind of a thing, and I felt very uncomfortable for my clients, and for myself. So, he - he started to sort of - yeah, treat all my clients that came in, in a negative fashion. He was out of the house even more and, like I said, when he was in the home, it was always yelling, screaming, trying to pick a fight. Yeah, so it had increased.
So, he started linger a bit more in the house because I had clients coming, but it was only just to, yeah - I don't know what his - I didn't discuss with him. I would say to him, "Why are you doing this? These clients are our source of income, you know. You're scaring them off, and staring at them like that." Sometimes they would say hello to him; he wouldn't answer. He would just stare at them and walk away, so that part started to get really frustrating for me, and I was very embarrassed.
Mona said that in 2014 to 2015 the situation at home and her relationship with him remained basically the same but that she got to the point where her business was growing and she was getting busy. She said she "couldn't handle the attitude that I was getting from him in the house", so she moved her business to Suite 4, 1 Station Street Auburn: Transcript day 3, 190, lines 40-49.
After moving her business out of the house, Mona continued to work Monday to Friday, 8:30am to 5:00pm. Every day of the week she would leave home early enough to deliver the children to school and pre-school prior to her arriving at her office.
Mona said that in 2016 her husband's verbal abuse "tripled". Evidence she gave of this included abuse in the environment of her work was as follows:
Q. Coming into 2016, what was the day to day situation with your husband last year?
A. His verbal abuse had literally tripled his - you know, he has never raised his hand, but his verbal attack was severe. He would talk about me to friends and family in a bad - negative way. And he was just doing so much that it was affecting me emotionally, psychologically, to the point that I was starting to take it out on my children, who I have to say, through all of this, have witnessed all this tension. You know, who've been told off; repeatedly by their father, and while they understood - because I would sit with them and I would talk to them. I would say, "Look, you know, bear with me. I'm under pressure. You know, you see how you're dad is. I'm trying to keep up with work, with the bills, with everything, so understand," and I always try and do family - like just to sort of soothe that out for them and that but, with Samir, it was severe to the point he would come to the office at times and abuse me in front of my clients over nothing, like he would have no valid reason whatsoever.
Mona said that the plaintiff had gone to her father complaining about her working and she described this as "the final straw": Transcript day 3, 195, line 10.
Mona described the plaintiff's forgetfulness as such that if she would call the plaintiff and ask him to drive the young girls home from school, he might do so but then he would not stay with them. Other times he would forget to pick the kids up from school when she asked. She said that she could not rely on him.
The plaintiff and Mona were married in 1998. They co-habited continuously until their first separation on 8 July 2012. Mona was in Lebanon between 22 March 2012 and 1 June 2012. Mona separated from the plaintiff, taking their four children on 8 July 2012, 5 weeks following her return from Lebanon. Following Mona's return to the matrimonial home at 20 Mons Road, Granville on 23 July 2012 the plaintiff and Mona cohabited until their separation again in about the middle of April 2017. The plaintiff left the matrimonial home on 9 April 2017 to live at 327 Clyde Street, Granville on 10 May 2017. He has since shared the main house there with his sister Rola's family whilst Mohamed Dib lives in the granny flat.
I considered Mona to be an intelligent witness but I have already found that acceptance of her evidence in support of the plaintiffs' case deserves caution. Mona's willingness to argue the plaintiff's case was displayed during her obvious attempt in court to give evidence over objection that the plaintiff received domestic assistance in the home whilst she was in Lebanon between 22 March 2012 and 1 June 2012. That passage of the plaintiff's evidence in chief was as follows:
Q. Before you went to Lebanon had there been any arrangement made for persons - a person or persons to come in and do some housework at the premises?
A. No arrangements were made because Samir--
WATSON: I object.
HIS HONOUR: Yes, Mr Curran, that's an answer to your questions.
CURRAN
Q. Why were no arrangements made?
WATSON: I object.
CURRAN: Well, your Honour--
HIS HONOUR: Well, if it's something within her own knowledge--
WATSON: Sorry, yes, I withdraw that objection.
WITNESS: My mum cleaned the house, you know, they came and the house was a mess.
WATSON: No, I object.
WITNESS: It's not fair. The house was a mess.
HIS HONOUR
Q. Now, just stop. Just stop. Firstly, that evidence will be struck from the record. Secondly, a little while a go, madam, you asked, "What was the objection?" You are not here to argue a case. Do you understand that?
A. Yes.
Q. Do you know the function of a witness?
A. Yes.
Q. The function of a witness is to tell the truth.
A. Yes.
Q. That goes to the facts to be determined. Do you understand?
A. Yes.
Q. There are several objections there. You've received some degree of training in an area of the law. It appears to me you probably understood and knew that you were volunteering something there, trying to get it onto the transcript, which you had previously heard objections against you saying.
A. Okay.
Q. Is that right?
A. Yes.
Q. It is, isn't it?
A. Yes.
Q. From now on I want you to listen to the question and restrict your answers only to the question. Do you understand me?
A. Yes, your Honour.
After Mona returned home on the June Mr Mohamed Dib reduced the frequency of his visits to twice per week of about 1 to 1.5 hours each visit: Transcript page 311, line 15-20. He did not notice any change in the plaintiff during the 5 weeks the plaintiff co-habitated with Mona after her return from Lebanon and before her leaving the matrimonial home with the children on 8 of July: Transcript page 311, line 21.
Mr Mohamed Dib said that he first noticed a change in the plaintiff around three years ago (2014): Transcript day 4, page 306, line 45-50. He described the change as a distancing between himself and the plaintiff. Until then, they did things like cut the grass together at 327 Clyde Street. However after the change when Mr Mohamed Dib would try to call his brother the plaintiff would always say that he was sick and he did not want to do things. He found out that the plaintiff was taking a lot of medicine and when he asked him what was wrong the plaintiff would say that he was "not right". He would say that he was sick. Mr Mohamed Dib said that the plaintiff stopped talking to him like a brother: Transcript page 307, line 25-30.
He said that the plaintiff complained of his back and of his shoulder and of suffering dizziness sometimes. He said that the plaintiff did not shower regularly.
He continued to visit the plaintiff three to four times a week, in the evenings after his work, from about 6pm. They would talk, sometimes eat and the plaintiff would sometimes feed his birds for 30 to 40 minutes: Transcript day 4, page 310, line 26. Other than that they would watch TV.
When asked what they would talk about during those visits Mr Mohamed Dib gave the following answer:
Q. And what would you talk to him about?
A. WITNESS: How are you feeling? - he said to me I'm all right. Do you take your medication? Yes I do. Do you talk to your wife? Yes.
As I understood Mr Mohamed Dib, the plaintiff had not informed him of any new medication but Mr Mohamed Dib was aware that the plaintiff had been taking tablets for some time. His evidence does not explain whether the medication was related to the plaintiff's fistula condition or not.
With un-objected to leading questions, Mr Mohamed Dib was asked to describe change he noticed in the plaintiff's physical moving, standing, walking and sitting. He spoke of the plaintiff's present state, saying that he noticed the plaintiff does not sit normally and added that the plaintiff sits at an angle.
He has noticed that the plaintiff walks very slowly: Transcript day 4, page 314, line 39.
In regard to sitting he said that the plaintiff puts his hand on the side of the chair first to lower himself into the chair and then sits on an angle. He said that he had noticed these changes in the last 2 years: Transcript page 315, lines 05-15.
Since 10 May 2017, with the plaintiff living in the home of 327 Clyde Street, Granville; he noticed that the plaintiff does not engage in conversation. He is always alone and introverted and on occasion he sleeps in his car by himself. Mr Mohamed Dib said he does not try much to telephone the plaintiff because he does not answer his phone. He said in these ways the plaintiff is not like before.
Mr Mohamed Dib said that he maintains the grounds and Rola maintains the house at 327 Clyde Street.
During cross-examination on Day 6, Mr Mohamed Dib was asked to demonstrate how the plaintiff would lower himself into a chair and sit. His demonstration matched the above description of placing his hand upon the chair and lowering his backside into it. Once seated Mr Mohamed Dib sat with his pelvis forwards and to one side so that his body was leaning back at some angle and to the side.
At this point in the demonstration I invited counsel to turn around and observe the plaintiff sitting behind them in court. He was sitting upright and normally positioned facing forward in a chair. He was not turned to the side with hips forward.
Mr Mohamed Dib said the plaintiff is unable to sit for more than one half hour to one hour. He said that the plaintiff would stand up for relief of discomfort. I observed that the plaintiff did not display any discomfort or need to stand during the two full and one part days of his evidence.
In re-examination, Mr Mohamed Dib said that the plaintiff likes to sit in a chair at a table. He demonstrated in the witness box the how plaintiff likes to sit with clenched fists pressing into the table.
The plaintiff sat in the same witness chair at which Mr Mohamed Dib provided this demonstration. At no time during the giving of his evidence was the plaintiff seen to place his clenched fists on the bench of the witness box, to support himself as he sat, as Mr Mohamed Dib demonstrated.
Mrs Rola Dib's evidence corroborated that since living at 327 Clyde Street with herself, her husband Marwan and their children in the bigger home and Mr Mohamed Dib in the Granny Flat, the plaintiff has remained quiet and if questions are pursued of him he gets cranky.
Mrs Rola Dib said that the plaintiff walked a bit sideways and did not move fast. To my observation, the plaintiff did not display a sideways walking movement when progressing to and from the witness box albeit he walked slowly. No other witness described the plaintiff as walking sideways.
Mrs Rola Dib said that plaintiff presently remains in bed until somewhere around about noon to 1:00 pm, then on an average day he leaves the house without telling her where he is going and she does not know where he goes. He goes out for different times but he is usually away for about 4 - 5 hours. She said he is always frowning and if she asks him how he is he does not respond. She said she has to call him a few times to get him to come to dinner. When he sits on the couch with the family she asks him to stay but he goes to his bedroom. She said that she made the plaintiff shave and dress appropriately to come to Court.
During cross-examination the plaintiff was shown photographs of himself from Facebook in which he appeared happy. He vaguely answered that he appeared that way sometimes. During cross-examination Mrs Rola Dib was shown these photographs taken of the plaintiff since the collision. Exhibit 8 showed the plaintiff smiling and leaning casually whilst smartly dressed in sport clothing leaning against the bonnet of the red BMW motor car. Exhibit 9 showed the plaintiff smiling with his left arm wrapped around his nephew's neck and with his leg draped up over his nephew. Exhibit 10 showed the plaintiff standing, smiling with Mona whilst again appropriately dressed and groomed outside her business practice. Exhibit 11 showed him again presenting cleanly and neatly. Mrs Rola Dib said that the photographs portrayed the plaintiff before he came to live with them at 327 Clyde Street. She agreed that the photographs portrayed the plaintiff differently to as she had described him. She said that she did not think she was exaggerating in her evidence because of what she has seen at home. She volunteered that perhaps he was performing for the camera because family photographs are taken for distribution to the family.
I was concerned that Mrs Rola Dib and Mr Mohamed Dib gave evidence as loyal siblings supportive of their brother who they find significantly changed in mood and behaviour, particularly as they experience living with him presently at 327 Clyde Street.
Mrs Rola Dib's evidence that he walked sideways was not an observation any other witness made. Also, given the significance of the subject motor vehicle collision, I was surprised that Mrs Rola Dib answered that she did not know anything about the accident and that she did not know whether or not her husband Marwan had owned the Astra vehicle or had ever owned a Holden Astra motor vehicle. One might think it likely that belief of the plaintiff suffering life changing harm in a motor vehicle collision when driving the car her husband had sold him might be something Mrs Rola Dib would remember. The damaged Astra vehicle remains at the plaintiff's 20 Mons Street home which Mrs Rola Dib has visited over the intervening time. In any event, her evidence was not sufficiently precise as to onset of symptoms for it to be of significant weight on the question of causation of altered mood and behaviour.
I find the description by Mr Mohamed Dib and by Mrs Rola Dib of the plaintiff's impairments to be prone to exaggeration in advancement of the plaintiff's case.
[16]
Damages - Consideration
The second defendant put to the plaintiff in cross-examination that he was faking impairment. That the plaintiff, his wife Mona, his brother Mohamed Dib and his sister Mrs Rola Dib gave evidence containing exaggeration, in my opinion, means assistance in the assessment of damages is to be obtained from the objective medical evidence, particularly the records of medical treatment. This is in regard both to whether or not the motor vehicle accident caused injury and disability and to the extent of injury and disability so caused.
Whereas the plaintiff case is, and he has told his doctors that, he suffered a significant mood change from the time of the motor vehicle collision, the evidence did not reveal the plaintiff's wife Mona making any observation of change in him personally during 21 or 22 March 2012, before she departed with the children for Lebanon.
The plaintiff's brother Mohamed Dib, who visited him for several hours at a time, frequently throughout the period following the motor vehicle accident and until Mona Dib left the matrimonial home on 8 July 2012, did not notice any change in him. He described the plaintiff's behaviour as "normal". This was also consistent with Mr Baranowski's observation that the plaintiff did not lose interest in his bird hobby and that the plaintiff picked up Mr Baranowski's male bird approximately one month after the motor vehicle collision.
The clinical notes of Dr Abdalla, the plaintiff's regular GP, do not record over several consultations following the motor vehicle accident, the plaintiff requesting treatment for a psychological condition until 9 August 2012 and that would be consistent with Mona's evidence that, following her return to the matrimonial home on 23 July 2012, she insisted the plaintiff seek treatment for his anger.
The plaintiff has been repeatedly medically assessed as suffering an altered psychological state attributed to various diagnoses but generally adjustment disorder and depression.
The first diagnosis of the plaintiff's adjustment disorder and the only specialist clinical treatment record for psychological harm, is the opinion of Dr Cottrell-Dormer, psychiatrist, contained in the notes of Cumberland Hospital Paringa Mental Health Unit, arising from the plaintiff's admission between 11 and 13 July 2012. Mona removed herself and the children from the matrimonial home on 8 July 2012. The plaintiff self-harmed on 11 July 2012. He called an ambulance but drove himself to hospital. He had cut his wrists and neck but the injuries were not life threatening. The clinical notes of Cumberland Hospital, Paringa Unit, are contained in Exhibit D (pp 124-156).
On 13 July 2012 Dr Cottrell-Dormer recorded a principal diagnosis for the plaintiff presenting problem of suicidal behaviour, of: "Adjustment disorder with depressed mood". He recorded an additional diagnosis of: "family relationship problem Acculturation difficulties": Exhibit T, page 125.
Dr Cottrell-Dormer recorded that the reason for admission to the Mental Health Unit (following transfer from Auburn Hospital) was the plaintiff's reaction to his wife and children having left him on Sunday 8 July because he would not help with the children. Dr Cottrell-Dormer provided care including advising the plaintiff that the self-harm was not for the purpose of suicide but in the hope that Mona would return to him. Dr Cottrell-Dormer recorded contributing factors (Exhibit T p 125) as "longstanding back pain and a troublesome peri-anal fistula".
On 13 July 2012 Dr Cottrell-Dormer recorded his summary observation from the plaintiff's Paringa Unit admission, that the plaintiff "denied mood disturbance prior to his wife's departure": Exhibit T, page 125.
The Cumberland Hospital, Paringa Unit, Mental Health Assessment recorded in the History Of Presenting:
Recent psychosocial stressor/his wife told him four days back that she wants divorce and she has left his house with four children to live at her parents' place. Samir feels stressed, upset, frustrated the last four days, disrupted sleep and appetite, feels hopeless about his life, does not understand how he will live without wife and kids, denied being abusive towards wife, nil interpersonal relationship issues. He feels guilty "maybe I did something wrong that's why she left me". Denied any paranoid ideation about wife. 11/07/12-7.00pm/felt very depressed cut himself with razor. 4 days back - "I lived happily" … "not stressed and not like this"
This note was timed at 12:38 12 July 2012.
The Mental Health Assessment, Mental State Examination on 12 July 2012 (Exhibit T p 133) recorded that the plaintiff was casually dressed, displayed psychomotor retardation, a cooperative approach and that reasonable engagement was achieved. His affect was blunted and his mood was stressed and upset. There was no formal thought disorder or suicidal ideation but his themes were of hopelessness, helplessness and he was "only stressed about wife leaving him".
In the list of current general risk factors, the Mental Health Risk Assessment is ticked in the 'no' box for significant physical pain (Exhibit T p 136). Amongst other vulnerabilities, "Self neglect, poor self care etc" was ticked in the 'no' box. The only physical illness identified was anal fistula among current factors (Exhibit T, page 137).
The Cumberland Hospital, Paringa Unit record (Exhibit T p 150) of anal fistula problems record bleeding, pain and yellow puss affecting a lot of things in the plaintiff's life. Those Progress/Clinical Notes record the stressors reported by the plaintiff as:
Family
My wife left home to leave you
Lots of reasons, started long time ago
Small things
I'm not helping with the kids
Always arguments about that
The plaintiff recorded that he was taking Panadeine Forte and another tablet for the pain of his fistula (Exhibit T p 151). It is recorded that when asked as to his wellbeing before Mona left (2 July 2012), the plaintiff reported that he felt "ok" and of "normal mood", that he was eating okay but that he was not sleeping "ok" because of back pain which had disturbed his sleep for three to four months. The plaintiff also complained of neck pain. It is recorded that he took Panadeine to sleep and suffered initial insomnia for more than an hour when his fistula was painful and for the prior two to three months because of his back pain.
In summary, the records of Cumberland Hospital, Paringa Unit, are consistent with the plaintiff having suffered back and neck pain from the date of the accident. In combination with the record of treatment by Dr Abdalla (Exhibit T, pp 106-109) there is significant objective, treating medical literature supporting discomfort and impairment in these areas. On the other hand, at no point do the records of the Cumberland Hospital, Paringa Unit, express a link between the motor vehicle accident or the physical discomfort it caused, with the plaintiff's depressed mood and adjustment disorder. To the contrary, the notes identify only Mona's departure from the matrimonial home with the children and statement that she wanted a divorce as the stressor for the plaintiff's psychological condition, including change of mood. The notes clearly state that there was no mood change before the separation on 8 July 2012.
No expert medical witnesses were called by the parties to give oral evidence. Near the commencement of the hearing, on learning this, I informed the parties that it would not be available to the Court to determine preference between expert medical opinion, as if employing a medical expertise. In those circumstances, the Court can only accept and interpret the medical literature on its plain reading and weigh it according to the facts found.
Ms Dawn Piebenga, occupational therapist, whose report dated 17 May 2017 was Exhibit 14 in the proceedings, at p 9, fn 5 referred to Dr Cottrell-Dormer's clinical notes and provided the definition of "acculturation" as:
The process of cultural and psychological change that results following a merge of two cultures.
In my opinion significance should be attached to the Cumberland Hospital, Paringa Unit, notes because they provide a detailed record obtained in a Mental Health Unit over a period of approximately a whole day. Plainly the notes were taken in furtherance of a purpose which differed from the forensic exercise deployed in these proceedings. The accuracy of the recording is shown by included first person version of statements where the authors have felt the subject matter of particular importance in terms of the plaintiff's mental health. Importantly, it can be assumed that those recording the clinical notes specialised in communicating with persons suffering affected psychological state.
In fact, the Paringa Unit staff as well as psychiatrist Dr Cottrell-Dormer recorded that the plaintiff denied mood disturbance prior to his wife's departure. That history is recorded as given by the plaintiff to more than one person over the course of 12 July 2012 at the Paringa Unit (see Exhibit T p 125 Dr Cottrell-Dormer; p 128 nursing staff; p 133 same nurse; p 136 a second staff nurse; pp 150-152 Dr Cottrell-Dormer with the assistance of an interpreter).
[17]
Orders
My orders are:
1. Verdict for the plaintiff against the defendant.
2. The defendant to pay to the plaintiff damages in the sum $39,105.92.
3. Defendant to pay the plaintiff's costs.
[18]
Amendments
12 March 2018 - Typographical error on cover sheet.
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: 12 March 2018
Fraud and Significance of the Absence of the First Defendant
The second defendant puts into evidence versions of how the collision occurred, provided by the first defendant when she made her statement to the police (Exhibit C), during a record of interview with insurance investigator Mr Flinders on 2 May 2012 (Exhibit 31) and in her Statement of Evidence made 25 February 2013, tendered in Local Court proceedings brought by her against the second defendant (Exhibit 29) and transcript of her oral evidence in those Local Court proceedings on 2 May 2013 (Exhibit 30).
In closing the second defendant submitted that the documented evidence in the first defendant's statements was false. It was put that she was "an unreliable witness": Transcript Day 11, page 718, line 24.
The second defendant put its case on the basis that the first defendant was complicit in the fraudulent staging of the motor vehicle accident: Transcript day 11, page 718. The second defendant put the first defendant's motive to have participated in fraudulent staging of the motor vehicle "accident" as her opportunity to claim the insured Agreed Value of $32,000 for her Honda motor vehicle, when she had purchased it for about half that sum: Amended Defence paragraph 4(e)(iv).
The second defendant's closing submission was that the first defendant's participation in the fraudulent staging of the motor vehicle collision was organised or managed through her close friend Mr Bessounian and that the plaintiff's participation in the fraudulent staging of the motor vehicle collision was organised or managed through his friend Mr Baranowski.
The next step in the defendant case was to put that Mr Baranowski's and Mr George Bessounian's involvement in other motor vehicle accidents should be accepted as establishing that they organised motor vehicle accidents in order to benefit from the making of insurance claims for property and personal injury damages and for Mr Baranowski to benefit through his business, Ken Stokes Smash Repairs receiving consequent motor vehicle repair business. It says the plaintiff and the first defendant were complicit in the staging of the subject "accident" with Messrs Baranowski and Bessounian.
The hearing was conducted mainly in dispute of this conspiratorial fraud allegation which was not pleaded.
It is a weighty matter for the Court to ensure natural justice and procedural fairness for the first defendant in this case because the second defendant seeks a judgment finding that she participated in a fraud in the circumstances where she was not represented and did not give evidence in the hearing.
During the defendant's closing submissions I requested proof that the first defendant had been served with the Amended Defence or was otherwise aware of the allegations of fraud made against her in these proceedings. It was important for the Court to know whether or not the first defendant elected not to be represented and not to give evidence in defence of a case alleging her fraud.
Those notes record no psychological vulnerability preceding the stressor of the matrimonial separation.
It is accepted in these reasons that the plaintiff's evidence and presentations in Court, even to some degree his forgetfulness may be related to his psychological condition. When responding the Dr Cottrell-Dormer and Paringa Staff, the event of Mona and his children leaving was raw. Allowance can be made for that event to have been front and centre to his thinking. I do consider the risk that it therefore might have overshadowed his thinking of report of pain. Caution must be exercised when discounting the plaintiff's oral testimony on the basis of his account given when in the Paringa Unit. Employing the care required of a Court weighing what is recorded in medical notes against the oral testimony given by witnesses including the plaintiff explained in Mason v Demasi [2009] NSWCA 227, per Basten JA at [2]-[4]; I consider the clinical notes persuasive evidence against accepting the plaintiff case that the motor vehicle accident caused him mental harm. The Paringa Unit notes, as would be expected in circumstances of the plaintiff being admitted for a self-harm incident, are directed to identification of causative stressors. The notes show that Dr Cottrell-Dormer and staff did specifically investigate physical symptoms of discomfort. The notes record a history consistent with Mr Mohamed Dib's description of the plaintiff being normal when he visited during the months after the motor vehicle accident, when Mona was in Lebanon.
Whether the plaintiff, at the time of giving his evidence, truly believed the motor vehicle accident caused his depressed mood is difficult to determine; however, his evidence in general displayed exaggeration and dissembling and I do not prefer it over those independently recorded clinical records. Support for this view is also found in Mr Baranowski's evidence that he did not notice the plaintiff to be of changed mood or enthusiasm when dealing with him in late April 2012.
My observation (above) of Mona and the other witnesses in the plaintiff case has found their evidence to require cautious reception as to accuracy. I prefer the objective clinical treatment notes where that oral evidence is inconsistent with those notes.
The plaintiff relies on medico-legal expert evidence in support of his claim for mental harm. The report of Dr Ashart Ali dated 28 November 2013 (Exhibit T pp 30-35) is based upon a history given by the plaintiff in consultation of gradual onset and worsening of symptoms of depression following the motor vehicle accident up to the plaintiff's admission to Cumberland Hospital. Dr Ali was not briefed with the Cumberland Hospital notes. Dr Ali's opinion is not based upon the facts of the history of onset of the plaintiff's psychological condition which I find and I do not prefer it to the notes of the Cumberland Hospital.
The plaintiff relies on the report of Dr Bruce Westmore, psychiatrist, dated 23 April 2014 (Exhibit T pp 36-47). Dr Westmore did consider the Cumberland Hospital notes. Indeed, Dr Westmore recorded that the Cumberland Hospital clinical notes included that the plaintiff denied to hospital staff that he had a mood disturbance prior to his wife's departure.
Dr Westmore relied on the history given by the plaintiff and by Mona and the plaintiff's attribution that the motor vehicle accident had given him "extremely bad emotions. I wasn't like this before…" He attributed causation of the diagnosed adjustment disorder with depression and anxiety to multi-determined aetiology. Dr Westmore accepted the plaintiff's description of his chronic pain arising from the accident and attributed the couple's relationship difficulties to the plaintiff's post-accident depression and irritability. At p 8 of his report (Exhibit T p 43) he reasoned his opinion of causation as follows:
While pain is certainly a contributing factor to the chronic Adjustment Disorder there have been a number of subsequent events (isolation from friends and general social withdrawal, relationship difficulties and a short-term separation from his wife and children), which would have all, quite independently of pain, impacted in an adverse way on his mood. Because of that, his functional problems arise, not only because of pain, but they are multi-determined in their aetiology.
Finally, Dr Westmore expressed causation in these terms:
There is a link between his post-accident suicidal attempts and the accident. He became depressed, his wife could not tolerate that and so she left him taking the children with her.
Dr Westmore did not comment upon Dr Cottrell-Dormer's observation of the comorbidity of acculturation. Without having the opportunity to hear him give oral evidence, I am concerned that he was not given the benefit of a description of lifestyle or cultural differences developing between the plaintiff and Mona. Dr Cottrell-Dormer does not identify the facts or history leading to his forming the opinion of acculturation. Leading up to the marital separation on 8 July 2012 the plaintiff was being inactive and remaining in bed until the middle of the day and not assisting with the children whilst Mona was setting up a licenced conveyancer practice. Mona's evidence described the plaintiff's rudeness to her clients when she tried to conduct her business from home. Sometime later, the plaintiff's conduct in that regard encouraged her to move her practice to office space out of home. She described the plaintiff abusing her even there she found the plaintiff's complaints to her father about her work, very distressing.
I note that the plaintiff has never performed domestic services within the house other than minimally as identified in the report of Ms Piebenga (Exhibit 14). He did not mow lawns. His children helped Mona with domestic tasks at the property 20 Mons Street, Granville. The older son Marzan more recently maintains the garden according to Dr Stephen's second report in late 2016.
Applying a common sense and worldly experience to those facts; at the time of the matrimonial separation, the couple was possibly experiencing difficulty adjusting to Mona's change of career choice. That lay hypothesis however was not tested in court with the doctors because they were not called.
In my opinion, the preferred approach is that given the temporal connection to the motor vehicle collision and to the breakdown of marital and family relations peaking in the self-harm action plus the advantage of the full day and overnight opportunity of observation and history taking enjoyed by Dr Cottrell-Dormer, compared to the much later medico-legal consultation opportunity enjoyed by Dr Westmore; I prefer the description of attribution to cause by Dr Cottrell-Dormer. Putting aside my observations of the possibility of adjustment to Mona's working, for the reasons given I do not prefer Dr Westmore's assessment of causative effect of the motor vehicle accident because it is based on facts which I do not find.
The plaintiff relies on the Medical Assessment Service report by Dr Samson Roberts, psychiatrist, dated 6 August 2014. Dr Roberts issued a certificate under Pt 3.4 MACA that the plaintiff's permanent impairment on account of chronic adjustment disorder and mixed anxiety and depressed mood was greater than 10%. Dr Roberts accepted the plaintiff's report that there had been no problems in the marriage prior to the motor vehicle accident.
The plaintiff described to Dr Roberts that his physical restriction was such that his wife had to help him with his jacket, that when he was in pain he could not shower, that he did not enjoy driving and that he drove at 20-30 kilometres per hour irrespective of the speed limit. Dr Roberts accepted the plaintiff's evidence that he had lots of friends but no desire to see them.
Once again, the doctor recorded his reliance upon a history of physical impairment grossly exaggerated over that which I find. Whilst the evidence at the hearing was that he might not shower because of his depressed mood, the evidence was not that he could not shower because of pain. There was no evidence that pain restricted ability to drive. Specifically, and again, the plaintiff's brother Mr Mohamed Dib gave evidence that the plaintiff appeared to him to be his normal self preceding the matrimonial separation on 8 July 2012.
Dr Roberts under the sub-heading "Diagnosis and Causation" expressly relied upon: "The account of symptomatology provided by Mr Dib, and that contained in the documents and the limited information provided by his wife in relation to the nature of the marital relationship,…". His report does not disclose that Mona described to him change of mood or depression suffered by the plaintiff in consequence of his physical injuries prior to their relationship breakup. Mona did not in her evidence describe such a change of state in the plaintiff in the two days following the motor vehicle collision before she went overseas. Accordingly, Dr Roberts was left with the plaintiff's description of his nervousness resulting from pain and otherwise as to the history of onset of change of mood. Again, I do not accept that history.
In relation to the cause of the familial breakup in July 2012 Dr Roberts only recorded: "…there was a period of time where his wife left the family home for a week in order to live with her sister. He expressed significant strained [sic] arising from his circumstances and the adverse impact on his marital relationship." Specifically, I have not accepted that the plaintiff was so disabled by pain that he was unable to contribute in the home, if that be the "circumstances" referred to.
Dr Roberts under "Summary of Relevant Documentation" describes only having received: "The entry dated 12 July 2012 in the Cumberland Hospital clinical notes document." In fact, the Paringa Mental Health Unit notes comprise 53 pages, not a single page. The assessment by the treating psychiatrist Dr Cottrell-Dormer which recorded the overall, summary observation of the plaintiff's denial of mood disturbance prior to Mona's departure is dated 13 July 2012; not 12 July 2012: Exhibit T, page 125.
I have quoted above that passage of Dr Cottrell-Dormer's assessment as well as the registered nurse entry dated 12 July 2012 of the plaintiff saying that the stressor of the family separation was based on "lots of reasons" and "started a long time ago". I have included references to entries by staff of the Paringa Unit of the plaintiff's denial. Dr Roberts' acceptance of the plaintiff's explanation: "that there had been no problems in his marriage prior to the motor vehicle accident" (Exhibit T, page 186) is not consistent with the history contemporaneously recorded by Dr Cottrell-Dormer and by staff of the Paringa Unit. Dr Roberts report does not disclose that he considered Dr Cottrell-Dormer's exposition on causation and onset of mood change and does not explain why, if it be the case, he disagreed with it.
Doing the best that I can without having heard oral evidence from the reporting doctors or from Dr Cottrell-Dormer, for the reasons given above, I am not persuaded to accept Dr Roberts opinion that the motor vehicle accident caused the plaintiff's depression and adjustment disorder. Dr Roberts opinion is based upon his reliance upon a factual history given by the plaintiff which I have rejected. I prefer the attribution of causation of the plaintiff's depression and adjustment disorder to marital separation as recorded by Dr Cottrell-Dormer because it is consistent with the lay factual evidence describing the plaintiff's presentation following the motor vehicle accident and before the return of his family from Lebanon. In addition, Dr Cottrell-Dormer's opinion is to be preferred because he had the benefit of observation and examination during a whole day admission in a special mental health unit and in a treating environment whereas the reporting psychiatrists had the lesser opportunity of a medico-legal consultation.
The plaintiff submits that the court is bound by Dr Roberts reasoned determination of causation behind his Certificate dated 6 August 2014 issued under Part 3.4 of MACA. Should that submission be correct; then because Dr Roberts certified that the Chronic Adjustment Disorder with Mixed Anxiety Depressed Mood suffered by the plaintiff gave rise to a permanent impairment greater than 10%, the plaintiff would be entitled to compensation for non-economic loss: s 131 MACA. The second defendant says that the Certificate is not binding.
That there is a tension between the operation of sections 61 and 58 MACA when it comes to the MAS assessor determining whether injuries are caused by a motor vehicle accident is recognised and well reported.
Section 61(2) specifically provides that the Certificate is conclusive evidence of the matters certified. Pursuant to s 58(1)(d) the matter certified is whether the degree of permanent impairment resulting from injury caused by the accident is greater than 10%. Applying my factual findings to that prescription the subject permanent impairment certified by Dr Roberts was not a result of injury caused by the motor vehicle accident. Prior to amendment of s 61(2) MACA, effective 1 October 2008, the Court of Appeal in Pham v Shui [2006] NSWCA 373 determined that the Certificate was conclusive but only for the purposes of non-economic loss (at [98]). Specifically, the Certificate was conclusive as to the "medical aetiology, meaning the medical causation of the relevant" injury (at [96]).
In this case, the medical aetiology described in Dr Roberts "Reasons" is not the issue. In my opinion it is the factual foundation upon which Dr Roberts reasoned his medical aetiology, which I have found to be inaccurate.
A point not reasoned by the Court of Appeal but which was accepted by the parties without criticism of the Court of Appeal in Rodger v De Gelder [2012] NSWCA 167 at [9] was that the Assessor's reasoned finding of causation was not in law conclusive evidence of the plaintiff's injuries for all purposes. The parties have not been able to refer me to case authority precisely on point. I conclude that the Certificate is not binding in these circumstances where Dr Robert's Assessment was made on a wrong factual basis.
The plaintiff did suffer physical soft tissue injury causing discomfort and impairment of function of some degree resulting from the motor vehicle collision. I have accepted the history recorded in the Paringa Unit notes, the assessment of Dr Cottrell-Dormer and as was revealed from the evidence of the plaintiff's brother Mr Mohamed Dib and of Mr Baranowski that the plaintiff was not noticeably distressed or apparently altered of mood despite experiencing those physical injuries in the months following the motor vehicle accident. I have not preferred the vague evidence of Mrs Rola Dib to the contrary. Generally I found her evidence given with a loyal sister's bias in favour of the plaintiff's case. I found her to exaggerate the plaintiff's physical impairment.
Whether or not the negligence of the first defendant caused the plaintiff's claimed psychological harm is to be determined pursuant to the provisions of s 5D Civil Liability Act 2002 (NSW) (CLA). See s 3B(1)(e), (2(a)) CLA.
The issue here is one of factual causation. Whether the negligence was a necessary condition of the occurrence of the harm: s 5D(1)(a) CLA. The case has not been contested on the basis of the question of whether or not the harm so caused was appropriately within the scope of the first defendant's liability for negligence: s 5D(1)(b).
I do not accept that the plaintiff's state of anxiety, depression and adjustment disorder resulted from the motor vehicle accident.
For completeness, I consider Dr Westmore's observation of contribution of physical symptoms making a "link" to the plaintiff's psychological state to be not persuasive for the same reason of factual basis not found. I find that the first defendant's negligence which caused physical injury was not by the consequent discomfort and restriction a necessary condition of the occurrence of the plaintiff's adjustment disorder, depression, anxiety and change of mood: Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182; [2012] HCA 5 at [20].
I turn to the plaintiff's claims of physical injury.
The evidence supports that the plaintiff suffered musculoligamentous injury aggravating pre-existing mild degenerative changes in his cervical and lumbar spine, not unexpected for someone of his age who suffers such trauma. In his left shoulder he suffered rotator cuff tendinopathy and subacromial subdeltoid bursitis.
Other than Dr Abdalla's referral to Dr Clark, orthopaedic specialist, the plaintiff has not received significant treatment for his physical injuries such as specialist medical procedures. Dr Clark's reports dated 9 May 2012 and 7 June 2012 (Exhibit T pp 28-30) do not provide any useful information for the purposes of assessing damages in this case.
The plaintiff relies on assessment by the following medico-legal reporters:
1. Dr Marsh, orthopaedist, MAS Certificate and Reasons 9 September 2014;
2. Dr T Sheehan dated 14 January 2014 and 4 May 2017;
3. Dr Dennis Cordato dated 27 March 2013 and 23 October 2013.
All reports relied upon by the plaintiff are contained within Exhibit T.
Dr Marsh issued his MAS Certificate on 9 September 2014 assessing the plaintiff's permanent impairment as not greater than 10%. His assessment included each of the three areas of claimed impairment, neck, back and left shoulder. In his Reasons he calculated pursuant to the provisions of Part 3.4 MACA a total permanent impairment of 4%.
Dr Marsh recorded that the plaintiff's complaints of restriction of range of movement of his left shoulder described greater restriction than had been noted in independent medical examinations carried out one year before. In his opinion, imaging including MRI, indicated in the plaintiff's left shoulder "only some possible mild bursitis and tendinopathy". Dr Marsh considered both reports of Dr Cordato, the 14 January 2014 report of Dr Sheehan and a report by Dr Stephen, orthopaedic surgeon, dated 28 August 2013 which is Exhibit 26 in the defendant case. He did not consider the updated report of Dr Sheehan to which I will come.
The plaintiff reported significant worsening of pain and restriction over the time since the motor vehicle accident. There is no finding of objective or organic physical cause identified by the reporting doctors as a cause for the plaintiff's pain and restriction to have worsened as claimed.
Dr Marsh described the injury as whiplash to the cervical and lumbar regions of the spine and frank injury to the left shoulder. He determined that there was no asymmetric loss of range of movement and no guarding or muscle spasm in either of the cervical spine or the lumbar spine. He found no clinical evidence of radiculopathy. He assessed zero whole person impairment for those regions.
In relation to the left shoulder, Dr Marsh expressed the opinion that the gross restriction in all movements presented by the plaintiff was not compatible with any injuries sustained in the motor vehicle accident and that whilst imaging studies indicated bursitis and tendinopathy which would result in minor degree of restriction of movement, one would not consider it likely that there would be the severe deterioration over the period of the months since the plaintiff had seen Dr Sheehan. The plaintiff presented with far greater restriction to Dr Marsh than had been recorded by Dr Sheehan earlier that same year.
Dr Marsh accepted the figures for restriction of range of movement of the left shoulder obtained by Dr Cordato in his report of March 2013 and by Dr Stephen in his report of August 2013 as a more realistic indication of the likely restriction in range of movement which would be expected from what was essentially a mild bursitis/tendinopathy of the left shoulder.
Dr Sheehan referred to the plaintiff's significant complaints of restriction of flexion and extension of his cervical spine. Without pretending any medical expertise, I observed the plaintiff to have an apparently normal forward and back deportment whilst giving evidence over two days, and to physically demonstrate that his neck would flex such that his chin was against his chest. These observations were available to counsel and raised with counsel. The persuasive effect of Dr Sheehan's opinion is, in my opinion, reduced to the extent of his reliance upon the plaintiff's exaggerated complaints.
At page 5 of his report of 14 January 2014 (Exhibit T p 6) Dr Sheehan expressed that having considered MRI, his opinion of restriction and impairment was based on the plaintiff's complaints. On that basis he opined that the plaintiff was, and would remain, unemployable throughout the foreseeable future. On the same page, Dr Sheehan accepted, on the basis of the plaintiff's complaints, that the motor vehicle accident had aggravated previously asymptomatic degenerative changes in the plaintiff's neck and low back. Dr Sheehan noted the plaintiff to be psychologically affected and accepted the plaintiff's history that that affect was precipitated by the motor vehicle accident.
In his report of 4 May 2017, Dr Sheehan did not vary his diagnosis and noted that all symptoms remained the same but that the plaintiff emphasised that the severity of his pain in the injured areas was worse than it was in 2014. In each of his reports, Dr Sheehan noted that the plaintiff was not inclined toward overstatement or exaggerated behaviour when assessed. I have found differently of his evidence in the court room.
Dr Sheehan accepted the plaintiff's report that loss of his capacity to lead a normal life including playing with his children and sexual relations with Mona were a consequence of his physical injuries whereas the evidence in the hearing from both the plaintiff and Mona was more to the effect that the plaintiff's anger interfered with his interaction with the children and his disinterest interfered with his family relationships including intimacy with Mona. These elements were identified as the changes in his behaviour which, on his case, were attributed to the motor vehicle accident but which I have found to have been caused by the breakdown of the marriage independently of his physical symptoms.
The two reports of Dr Cordato, neurologist, dated 27 March 2013 and 23 October 2013 confirm the soft tissue injuries to the neck, low back and left shoulder. In relation to the plaintiff's claim for reduced range of movement of the neck, Dr Cordato in his first report stated:
He is aware subjectively of reduced range.
Dr Cordato found no radiculopathy from the neck or from the low back, that being a subject precisely within his speciality. He summarised his findings on examination in his first report as follows:
…today I noted that his cranial nerves were intact. He had mild reduced rotation of the neck to the left to 45 degrees where it was near normal to the right. He had also mild reduced forward flexion and extension. His right shoulder had a full range of movement. The left shoulder was able to abduct and flex to 170 degrees but it was painful on doing so. In terms of his upper limbs, there was no neurological abnormality detected. In his lower back region, he had visible guarding when changing position from sitting to standing. He had central lower lumbar tenderness that extended to the left paravertebral region as well. His lower limb power, reflexes and sensation were normal.
Nowhere in the medical reports do the doctors observe impairment of ability to sit let alone the gross impairment claimed by the plaintiff in the evidence of himself and of Mr Mohamed Dib. I repeat, observation of the plaintiff over more than two days of evidence in the witness box, and when I drew counsel's attention to him sitting in the courtroom, did not reveal any part of that claimed disability. In his second report, Dr Cordato did not identify any new or worsened organic injury but recorded the plaintiff saying that his condition had worsened in the seven months since his first examination and report.
Dr Cordato, on the basis of the plaintiff's complaints, expressed the opinion that the plaintiff was able to perform all activities of his personal hygiene but was "at present" unable to perform domestic chores such as cleaning bathrooms, vacuuming or ironing because of his difficulty with bending and lifting. He recorded that the plaintiff had informed him that his wife performed those tasks for him. Dr Cordato considered the plaintiff would be unable to perform outdoor activities such as gardening or lawn-mowing. As did Dr Sheehan, Dr Cordato took into consideration the plaintiff's depressed psychological state. His assessment, which was similar to that of Dr Sheehan, was that the plaintiff was "at present" totally unfit for work duties either part time or full time and that if he was "to improve and return back to the workforce" he should avoid activities that involve repetitive bending or lifting and should avoid lifting weights greater than five kilograms in a work capacity.
Exhibit U in the plaintiff's case contains notes of treating clinical psychologist Mr Medhat Metry. The plaintiff consulted with him 34 times between 4 September 2013 and 7 July 2017. Mr Metry proceeded on the basis of a diagnosis of adjustment disorder with anxiety and depressed mood. Mr Metry reported that the plaintiff was frustrated from pain and physical limitations and suffered some degree of sleep disturbance due to the pain from his physical injuries.
It is consistent across all medical reports that the plaintiff suffers continuing symptoms of pain and some degree of restriction of movement consequent upon the soft tissue physical injuries in the regions of his neck, low back and left shoulder caused by the motor vehicle collision.
As I have expressed, the difficulty in assessing damages on the basis of the reports and in the absence of doctors being called to give oral evidence, is that I have found the plaintiff and his wife, who attended with him at specialist medical appointments, to exaggerate his complaints. I have also found that the plaintiff did not suffer mood disturbance and depressed thought following the motor vehicle accident but that the psychological change occurred at the time of, and because of, the eruption of matrimonial difficulties and was immediately triggered by his wife separating from him and suggesting divorce on 8 July 2012.
Albeit they recommenced cohabitation with the children at the matrimonial home, 20 Mons Street, Granville, between 23 July 2012 and 9 April 2017, on the evidence they never restored normal matrimonial relations. The plaintiff lived pretty much his own life, remaining in bed until the middle of the day, spending his afternoons visiting his friends in the park, at a local fruit shop and particularly spending hours at a local service station. The evidence was that he did not work at these places but that these were social outings. The plaintiff's evidence as to what he did at these places was very vague and amounted to not more than spending time with people he knew. In the evenings the plaintiff would spend time with his sister's family and with his best friend Ahmed including dining at their homes. With encouragement from Mona, the plaintiff would dine at her parents' home with his family when she cooked for her father.
It is in that environment of including the marriage breakdown, altered mood and depression and low motivation that the whole of the medical evidence of physical impairment is to be considered. In that context, on 4 September 2013, Mr Metry recorded among the long list of the plaintiff's complaints: the anger with his wife and his brother, frustration from pain and physical limitations and excessive worries and difficulty of controlling those worries, as well as depressed mood.
Across the medical report evidence, to some extent, the authors move with the underlying assumption that the plaintiff would, but for his injuries, perform domestic chores. The evidence is that the plaintiff never did so, except for carrying washing to the line and bringing it back in when dry (about four machine loads per week), cleaning mirrors within the house and, a few times per year, cleaning the external windows. He maintained his garden (except for lawn mowing) and his birds and took out the garbage. It was Mona who performed the domestic tasks. As the children grew up they assisted her. During the nine weeks Mona was in Lebanon immediately following the motor vehicle accident the plaintiff's brother Mohamed observed his behaviour to be normal and that he maintained his birds in a normal way including going out to feed them and attend them for forty minutes at a time. Mr Mohamed Dib thought it normal that the plaintiff was on the couch when he would visit. He did not express any surprise or thought of abnormality regarding the mess in the house. The plaintiff's sister, Mrs Rola Dib, came to the house once a week for about four hours to clean it. Following Mona's return on 23 July 2012, he continued not to participate in domestic chores. Whilst he has lived at 327 Clyde Street, Granville with Mrs Rola Dib's family and Mr Mohamed Dib since 10 May 2017, he has continued not to perform any domestic chores. Since he became depressed, he has not performed outside gardening and maintenance work, which previously on occasion he shared with his brother Mohamed.
The evidence shows that the advice Mr Metry recorded that he gave the plaintiff on 4 September 2013, that he call his friends twice a week, cook breakfast three times a week and drive for thirty minutes a day at least six times a week was given at a time when the plaintiff already exceeded that plan for socialising and for driving (all evidence was that his love of cars continued and that he spent his time with his car). In relation to cooking, the advice was likely to be futile. Accepting the affectation of depressed mood, still it was not the plaintiff's depression which caused him to rely on his wife and others for most domestic needs. It was his choice. He had pretty much always done so.
Reports of Dr John Stephen, dated 28 August 2013 and 2 December 2016, were tendered by the second defendant and became Exhibits 26 and 27. Dr Marsh, as recorded above, observed a consistency in finding of restriction of movements between the reports of Dr Cordato, Dr Stephen's report of 28 August 2013 and his own report. In relation to the soft tissue injuries, Dr Stephen attributed whole person impairment of 9% in his first report. In his second report he reported an asymmetry of cervical movement which he attributed to pain limiting extension.
As did all other doctors, Dr Stephen found no evidence of muscle wasting. He found no evidence of radiculopathy. He recorded no impairment of capacity to sit. During his examination of the plaintiff on 1 December 2016, at p 4, Dr Stephen recorded straight leg raising on each side at about 30 degrees before complaint of pain whereas during other examinations, the plaintiff's straight leg raising was more like 80 degrees. Under the heading 'Diagnosis' on p 4 of his later report, Dr Stephen recorded:
Whilst it is true that Mr Dib sustained soft tissue injuries to his neck, low back and left shoulder as a result of the motor vehicle accident, the physical examination today was more remarkable for hyper-reaction and inconsistencies, namely voluntary restriction of cervical left shoulder and lumbar movements and of straight leg raising, together with complaint of pain very early on light vertical impression.
At page 5 he recorded that in contrast to his examination report of 28 August 2013 (with which assessment Dr Marsh concurred) there were now marked inconsistencies in the plaintiff's presentation. In answer to the question whether the plaintiff's complaints of injury and disability were related to the motor vehicle accident, Dr Sheehan answered (p 5 of Exhibit 27) in the affirmative:
But his actual physical injuries and disabilities are slight and possibly even absent.
He concluded (at page 6 of Exhibit 27) that there was no functional incapacity from a purely orthopaedic point of view.
I find that the plaintiff suffered soft tissue injuries of tendinitis and bursitis in his left shoulder and a whiplash-like soft tissue injury to his neck and back which rendered his pre-existing degenerative spinal condition in those locations symptomatic whereas it had been asymptomatic. I accept that the plaintiff continues to suffer a degree of pain and of restriction in those three areas of his body. That those pains and restrictions persist after five years, causes me to accept that there is a degree of permanent impairment of the plaintiff as a result of the injury caused by the motor vehicle collision and that some degree of impairment will continue.
The plaintiff claims for compensation for non-economic loss, past and future diminished earning capacity as well as for past and future out of pocket expenses.
In regard to non-economic loss, that I have found the plaintiff's psychological condition to be not the result of the motor vehicle accident and that the MAS Assessment Certificate of Dr Roberts is not binding, means that because the plaintiff's permanent impairment for physical injuries were certified by Dr Marsh in his MAS Assessment at 4%, that the plaintiff is not entitled to compensation for non-economic loss: s 131 MACA.
Assessing the plaintiff's claims for economic loss in the form of lost earnings and for deprivation or impairment of earning capacity into the future, the plaintiff puts his case on the basis that he would have been employed from 2 April 2012, full time, with SGC Joinery Pty Ltd. I have not accepted the factual basis for that claim; i.e. that the job was offered to him. The plaintiff had basically unemployed for about eight years prior to the motor vehicle accident. He was receiving Centrelink payments and prior to that a pension on account of his inability to maintain regular employment because of his anal fistula which is a permanent condition.
That damages are difficult to calculate does not relieve the obligation upon the Court to arrive at the best assessment I reasonably can on the evidence. The plaintiff has a degree of impairment and restriction in his left shoulder, neck and low back. In particular, he suffers some restriction of rotation of his head, some loss of power in the use of his left arm and some restriction with lifting and bending. Attempting a picture of the effect upon his life brought by those impairments is like looking though a fog because his evidence and the evidence of Mona, his brother Mohamed Dib and his sister Rola Dib included what I have assessed to be exaggeration. The fog is thickened because the plaintiff gave his evidence as a person suffering adjustment disorder and depression and he lives the life of and is observed by those witnesses to live the life of a person suffering that psychological condition. His psychological state must be accepted to impair and depress to some extent his willingness to function.
Another cloud adding to the fog is that whereas in many cases, the court has the opportunity of measuring the everyday life activities of the plaintiff before injury with his activity after injury, the plaintiff here was not an active house husband but performed the very limited domestic chores. Again, his brother Mr Mohamed Dib observed that the plaintiff was "normal" in his physical activities including attending to his birds. That observation was made over nine or ten weeks before the added layer of his psychological impairment commenced.
The plaintiff's income tax returns are included in Exhibit S. They disclose a total income in 2007: $6,565; in 2010: $10,722; and in 2011: $11,012. ATO Notices of Assessment show net income (rounded) in 2003 of $26,000; 2004 of $31,000; 2005 of $25,000; and 2006 of $16,000. This evidence shows that the plaintiff was never more than a modest income earner. In the later years there appears to be negligible earnings given he was in receipt of a pension and subsequently NewStart payments.
The second defendant submits: "The court would not be satisfied that the plaintiff would have engaged in any employment if the accident had not occurred.": Final Outline of Submissions dated 14 September 2017 at [11].
The principle for assessment of the plaintiff's past and future economic loss pursuant to s 125 MACA in these circumstances is that repeated by the plurality in Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 from the plurality in Graham v Baker (1961) 106 CLR 340; [1961] HCA 48. The principle there stated is:
The plaintiff can only recover damages for the loss…of salary if he can prove that his earning capacity has been diminished…although the defendant must take the plaintiff as it finds him,…, the plaintiff nevertheless has his burden to discharge. He will be entitled to recover only if he can prove a diminution in his earning capacity which has been or may be productive of financial loss. If, notwithstanding any impairment, his contract of employment and his right to draw a salary continue, his impairment has not resulted in any financial loss.
At the time of hearing more than five years had passed since the motor vehicle accident. With the unfortunate burden of his depressed psychological state, the evidence does not reveal attempts by him to find paid employment in that period. Mona described him as looking for employment at the time of the motor vehicle accident. The plaintiff's physical injuries would have and will continue to impair his opportunity to find manual work in the labour force to some extent. He has only ever performed manual work as a motor vehicle spray painter and as a worker at Tip Top Bakery plus some unquantified security work. But for his psychological state, he may have had more enthusiasm to attempt to gain some form of employment. I note that specialist orthopaedic opinion supports that he was unfit to work because of his physical injuries but I have determined that those assessments were based on the plaintiff's exaggerated reporting. The latter report of Dr Sheean (Exhibit 27) assessed "slight" physical injuries and disabilities. On the whole of the evidence, I am not satisfied that the plaintiff has proved on the balance of probabilities that the diminution in his earning capacity has been productive of a financial loss. I award nothing for past-economic loss.
The court cannot make an award of damages for future economic loss unless the plaintiff first satisfies the court that the assumptions about future earning capacity or other events on which the orders to be based accord with the plaintiff's most likely future circumstances but for the injury: s 126(1) MACA.
The plaintiff is a man in his forties, presently residing in the home with his sister's family and owned by his brother. He is a loving father of four children. In the decades remaining of his working life, in my opinion, it would be harsh to find that it is not most likely that he would seek some form of income in order that he might achieve a more independent lifestyle and provide for his family. For the reasons given, obviously any award for future economic loss can only be meagre. That he is likely to work to some extent is also supported by the evidence that he has, albeit in the fairly distant past, maintained full time employment at Tip Top Bakery and enjoyed the financial opportunity which he and his wife described of their purchases of houses and of cars.
Mindful of the requirements of s 126(2) and (3) MACA, I propose to assess future economic loss on a buffer basis as is permitted: Penrith City Council v Parkes [2004] NSWCA 201 per Giles JA at [5]; Zorom Enterprises Pty Ltd v Zabow and ors [2007] NSWCA 2016 at [49]. For the reasons given, I am satisfied that it is extremely difficult on the evidence to assess with any accuracy the quantum of the most likely future circumstance that the plaintiff will work.
Doing the best that I can on the evidence of this case, I allow a buffer in the lump sum of $20,000.
Exhibit R is the mathematically agreed past out of pockets expenses for medical treatment. The treatment has involved attendances for physical and psychological conditions. Exhibit R does not identify the treatments. My findings lead to the obvious conclusion that treatment for psychological ailment is not compensable as damages in this case. I allow out of pocket expenses as agreed to be in accordance with these reasons, in the sum of $14,105.92.
As to future medical expenses for physical injury, there has been no specialist ongoing treatment. The plaintiff said that he does not benefit from physiotherapy. I therefore give him a lump sum, contemplating exacerbations, per annum and which will cover physiotherapy when medically required and general practitioner review. He has a regular general practitioner and because of his fistula and his ongoing depression, he will continue to have regular attendance on the GP in any event. This means that little provision for GP attendances is to be included.
Doing the best that I can on the evidence I allow a lump sum for future medical treatment for the plaintiff's physical injuries in the sum of $5,000.
As reasoned above, the plaintiff may seek independent living in the future but presently lives in a house owed by his brother in which his sister performs all of the domestic duties and his brother maintains the grounds.
The domestic duties which the plaintiff did perform before his injury are not identified in the evidence as amounting to more than six hours per week. The services provided to him from the time of the injury through the gratuitous care of family day to day may indeed exceed six hours per week over the intervening five years. His physical impairments are not shown on the evidence to be the source of need for assistance approaching the statutory threshold. The plaintiff maintained himself between the date of the accident and 1 June 2012 with only the domestic assistance of his sister Ms Rola Dib four to five hours per week.
Section 141B(2) MACA provides that no compensation is to be awarded if the gratuitous attendant care services would have been provided to the plaintiff even if the plaintiff had not been injured by the motor vehicle accident. On the facts as I have found them, the services being provided to the plaintiff would have been provided to him even had he not been injured in the motor vehicle accident. In addition, the evidence does not satisfy me that the plaintiff has a need for attendant care services which exceeded the six hour per week for a period of six consecutive months required by s 141B(3) MACA. The evidence does not establish a need for assistance on a commercial basis.
In the circumstances the plaintiff has not satisfied me of an entitlement to damages for attendant care services.
The second defendant's immediate response was that the first defendant would know because, in Local Court proceedings No. 2012/249638 which were determined in 2013 and in which the first defendant was plaintiff and the second defendant was defendant; the second defendant denied that the motor vehicle collision was accidental.
During the hearing of those proceedings on 2 May 2013, the first defendant was challenged as to whether she was "really" in the Honda motor vehicle, to which she replied, the question was "highly offensive" and that she "was in that car": Exhibit 30, page 71, lines 36 to 46.
These are different proceedings. The plaintiff was not a party in those Local Court proceedings. The evidence of those Local Court proceedings shows that the first defendant attended Court and gave evidence denying elements of fraud which are alleged by the second defendant in these proceedings. Those elements included how her Honda was driven to the collision and, as above, whether she was even in the Honda during the collision
Other factual allegations were pursued by the second defendant in the evidence in this hearing. The second defendant during this hearing ran its case challenging that neither the plaintiff nor the first defendant were in their respective motor vehicles. In this regard, the second defendant relied on the evidence of Mrs Nakhoul that she saw two or three darkly clothed individuals running from the scene. There is no evidence that Mrs Nakhoul gave evidence in those 2013 Local Court proceedings. There is no evidence that the first defendant is aware of Mrs Nakhoul's evidence.
Pleadings in those Local Court proceedings and a letter to the first defendant from the second defendant dated 12 July 2012 were admitted into evidence in these proceedings (Exhibit 32).
Within that Exhibit was a letter dated 12 July 2012 from the second defendant to the first defendant (plaintiff there) explaining that, in the second defendant's (defendant's there) view she had provided false and misleading statements concerning the motor vehicle collision, that she insured the vehicle for the value of $32,000 at its Ryde office when in the initial telephone inquiry she indicated that she would insure it for $20,000, that a witness had informed the second defendant that persons were seen running from the incident and that the insurer had determined to deny indemnity according to the plaintiff's false and misleading statements and a breach of duty of good faith under ss 13, 56 and 54 of the Insurance Contracts Act 1984 (Cth). Nevertheless, on 10 August 2012 the first defendant filed a Statement of Claim seeking from the second defendant recovery of property damage at the agreed value of the car. Those are the proceedings in which the first defendant, as plaintiff, provided the above referred to Statement and gave the above referred to oral evidence.
Counsel for the plaintiff, in my view, properly identifies that the Exhibit 32 documents, and I would add the Exhibit 30 transcript of the first defendant's evidence as plaintiff in the Local Court proceedings, do not identify the allegation of her conspiratorial participation with Mr Bessounian, Mr Baranowski and the plaintiff in the staging of the motor vehicle "accident". That allegation is the core of the case that the second defendant makes in this hearing.
In my opinion that the first defendant did attend and give evidence in that way in those proceedings, is not consistent with and on balance is against the proposition that she would concede an allegation of fraud against her in these proceedings.
Specifically it is against her conceding that the collision was not an accident. I cannot know whether the first defendant's unwillingness to attend is not based on her claim of anxiety state, or on an understanding that (even if she is aware that she is a party named in the proceedings), her participation is only sought as a witness for the second defendant in the plaintiff's claim for personal injuries damages.
On day 14 of the hearing the plaintiff and the second defendant informed the Court that:
1. The Amended Statement of Claim was served on the first defendant by post only pursuant to s 222(1)(a)(iii) MACA. I need not determine whether postal service sufficed (UCPR 10.20) because the Amended Statement of Claim did not include the allegations of fraud.
2. The first defendant had never been served with either the Defence or the Amended Defence.
Even had she been served with the Amended Defence, (I repeat) the case run at hearing by the second defendant of her conspiratorial fraud, was not pleaded in these proceedings.
In these proceedings even if the first defendant was aware of the second defendant's allegations involving her having made false and misleading statements, in the detail contained in Exhibit 32 and in the Exhibit 30 Transcript in those Local Court proceedings conducted between the 2012 and 2013; there is no evidence upon which I am able to find that the first defendant was aware of the allegations involving her in the fraud sought to be proved by the second defendant in these proceedings.
In these proceedings the second defendant concedes that in order for it to succeed on its case that the motor vehicle "accident" was staged, it is necessary for the Court to find that the first defendant was complicit in that staging: Transcript day 11, page 718, lines 26-30. The exchange in this part of the transcript occurred before the Court was informed that the first defendant had not been served with the Defence or with the Amended Defence. The second defendant submitted that the Court should find the first defendant to be an "unreliable witness" (transcript day 11, page 718, line 23) in a case where she did not give evidence and could not have been aware of the allegations of her participation in a conspiratorial fraud being made against her.
In my opinion it does not follow that even had the second defendant defended the proceedings brought by the first defendant as plaintiff 4 years ago on the same basis of conspiratorial fraud organised between Messer's Baranowski and Bessounian in which the plaintiff here and the first defendant here (plaintiff there) 4 years ago were complicit, it would be assumed that the first defendant knows that the second defendant presses those allegations in these proceedings. The plaintiff here was not a party in those proceedings.
Section 119 MACA provides procedurally for the insurer to be named as a party in the proceedings and to participate as if an intervener. It does not resolve the above stated weighty consideration of the Court being invited by the subrogated insurer (second defendant) to enter a judgment for fraud against its insured (first defendant) in the proceedings defended by her subrogated insurer (the second defendant) and where the first defendant has not been served with a pleading alleging the fraud sought to be proved against her by her insurer (second defendant) or participated in the proceedings.
Section 119 does not affect the substantive rights at issue. The second defendant's entitlement was to exercise all its powers directed to showing that the first defendant was not liable for the plaintiff's claim. Nevertheless, there is a distinction between the second defendant's role as intervening defendant and the first defendant's rights as a party: Vale v Vale [2001] NSWCA 245. That the second defendant is a party does not diminish the independent right to natural justice and procedural fairness to which the first defendant is entitled.
Even had the first defendant been served with the Defence and Amended Defence, the high point of pleading of fraud against her was as stated at [4] particulars of the Amended Defence (set out above). Those particulars were confined to allegations that the first defendant's vehicle was stationary and that she made "a false claim for insurance cover on her motor vehicle, which was, over insured".
In my opinion, the second defendant, when proceeding on the Amended Defence, in order to make the case that the first defendant was complicit in fraud of the nature run at the hearing and in regard to which it seeks judgment; was obliged to serve the first defendant with a pleading specifically describing her alleged participation with Mr George Bessounian, Mr Baranowski and the plaintiff in the staging of the motor vehicle collision. There is nothing before me to indicate that had the first defendant been served with an Amended Defence specifically pleading those matters, she would not have been taken by surprise: UCPR 14.14; UCPR 15.3; UCPR 15.4. Those specific matters, material to the allegation of the first defendant's fraud in relation to which the second defendant seeks judgment needed to be and were not "clearly and distinctly pleaded" and in the absence of her having her rightful opportunity as a party served with a pleading particularising a case of fraud against her, those specific matters were not put to her and she accordingly did not have the opportunity of denying them: Permanent Trustee v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514; 197 ALR 364; 77 ALJR 1070; [2003] HCA 25 at 38.
For the above reasons, judgment of the effect that the first defendant was fraudulently complicit in the staging of the collision is not available. Whilst the second defendant concedes the result of this finding is that it cannot succeed in the defence on liability, it is appropriate to consider the whole of the evidence on liability in case I am wrong.