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Mashaghati v Anderson

 

[2016] QDC 245

DISTRICT COURT OF QUEENSLAND

CITATION:

Mashaghati v Anderson & Allianz [2016] QDC 245

PARTIES:

MEHRANG MASHAGHATI

(plaintiff)

v

KATE ELLEN ANDERSON

(first defendant)

and

ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)

(second defendant)

FILE NO:

BD 1540/14

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 September 2016

DELIVERED AT:

Brisbane

HEARING DATES:

29 February 2016 to 3 March 2016

JUDGE:

Morzone QC DCJ

ORDERS:

  1. Judgment to the plaintiff against the defendants for $164,077.23.
  2. I will hear the parties further on the issue of costs.
  3. Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, I will also order that the defendants pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – motor vehicle accident – plaintiff was injured when he struck a parked car trying to avoid a collision – liability admitted.

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – multiple injuries claimed – credit of plaintiff with criminal history, association with convicted drug dealers and motor cycle gang members, deficient financial disclosure, restricted travel, demeanour, claim forms and deception of medical practitioners – veracity and genuineness of the plaintiff’s evidence and reported symptoms – whether suffered loss of earning capacity – assessment of damages.

LEGISLATION:

Civil Liability Act 2003 (Qld), s 59

Civil Liability Regulation 2003 (Qld)

CASES:

Bell v Mastermyne Pty Ltd [2008] QSC 331

Monger v Camwade [2011] QSC 097

Putland v Nowak [2012] QCA 121

Geary v REJV Services [2011] QSC 419

Chappel v Hart (1998) 195 CLR 232

Medlin v State Government Insurance Commission (1995) 182 CLR 1

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Sunley and Co. v Cunard [1940] 1 KB 740

Woodham v Rasmussen (1953) St.R.Qd. 202

Holmes v Jones (1907) 4 CLR 1692

Ted Brown Quarries v General Quarries (1977) 16 ALR 23

Minchin v Public Curator (1965) ALR 91

Ashcroft v Curtin [1971] 3 All ER 1208

Aerial Advertising Co. v Batchelors Peas [1938] 2 All ER 788

Chaplin v Hicks [1911] 2 KB 786

Wheeler v Riverside Coal Transport [1964] Qd.R. 113

Dessent v The Commonwealth (1977) 13 ALR 437

COUNSEL:

D. Kelly & M. Smith for the plaintiff

G. Crow QC for the defendants

SOLICITORS:

Bennett & Philip Lawyers for the plaintiff

McInnes Wilson Lawyers for the defendants

  1. [1]
    The plaintiff claims damages for personal injuries suffered resulting from a car accident that occurred when the plaintiff took evasive action and crashed his motorcycle into a parked in an attempt to avoid a collision with the first defendant.
  1. [2]
    Liability for the accident is not disputed. The parties dispute causation and quantum of damages.
  1. [3]
    After four days of trial, the parties exchanged written outlines of argument, which I have considered.

Background

  1. [4]
    The plaintiff was born on 6 August 1975 in Iran. He immigrated to Germany with his family when he was four years of age. He migrated to Australia in about 2007 on a 457 skilled visa as a mechanic.
  1. [5]
    In 2011, at the age of 35, he lived and worked in Brisbane.
  1. [6]
    At about 9:30pm on 1 May 2011, the plaintiff was driving his Harley Davidson motorcycle eastbound on Wynnum Road in Brisbane toward the first defendant’s Mitsubishi car travelling westbound. The first defendant did a U-turn across the plaintiff’s path. He took evasive action in an attempt to avoid a collision. He clipped the front of the first defendant’s car and crashed into rear and tow bar of a Commodore parked on the side of the road.
  1. [7]
    The collision was caused by first defendant’s negligence.
  1. [8]
    Following the incident, the plaintiff was taken to the Mater Hospital in Brisbane. He was not admitted to hospital but proceeded to travel to Germany to receive treatment there. He stayed for approximately ten days before returning to Australia and later returned to work.
  1. [9]
    As a result of the incident, the plaintiff alleges that he suffered:
  1. (a)
    a closed head injury;
  1. (b)
    a cervical spine injury;
  1. (c)
    a lumbar spine injury;
  1. (d)
    broken teeth;
  1. (e)
    an injury to his left ankle;
  1. (f)
    a chest injury;
  1. (g)
    an injury to the left side of the pelvis; and
  1. (h)
    a psychological injury.
  1. [10]
    In 2013 the plaintiff returned to Germany under a bridging visa to visit his sick father. His visa was later cancelled. He has been unable to secure a visa to return to Australia and he gave his testimony and observed the trial by audio-visual link.
  1. [11]
    The plaintiff asserts that since the accident he is incapable of working on a full-time basis and that he can only maintain one half of the normal weekly hours of a mechanic.

Issues

  1. [12]
    The determinative issues in the proceeding are:
  1. (1)
    Is it more probable than not that there is a causal relationship between the defendant’s negligence and the plaintiff’s impairment?
  1. (2)
    The assessment of damages.
  1. [13]
    These issues largely depend on the credibility and reliability of the plaintiff, corroborative witnesses and documents.

The plaintiff’s credit

  1. [14]
    At the date of the trial the plaintiff was 40 years of age. He gave evidence by audio-visual link from Germany (via the United Kingdom) over three days.
  1. [15]
    The plaintiff’s counsel urges acceptance of the plaintiff’s evidence as being both truthful and reliable.
  1. [16]
    The defendants’ case is that the plaintiff is a liar and convicted perjurer who has no credit and who has sustained a minor injury, exaggerating its effect to pay off debts to the Hell’s Angels and in respect of which he should receive a small award in compensation.
  1. [17]
    The defendants rely upon various indicia of dishonesty having regard to his history of criminal convictions, breach of domestic violence orders, association with convicted drug dealers and motor cycle gang members, deficient financial disclosure, restricted entry into Australia, demeanour, claim forms and deception of medical practitioners. It is further argued that this permeates the veracity and genuineness of the plaintiff’s evidence and reported symptoms.
  1. [18]
    The defendant commended the analytical approach of McMeekin J in Bell v Mastermyne Pty Ltd[1] apparently adopted by Martin J in Monger v Camwade[2] as follows:

[25] The plaintiff was, in my opinion, a witness given to saying whatever he believed would assist his case.  He has a history of deceiving medical practitioners, Centrelink personnel and Mission Australia personnel.  I do not accept that he was an honest witness.  Rather, I find that his history is one consistent with a person who would do whatever was necessary to avoid work and to remain on benefits of some kind.  I agree with what was said by McMeekin J in Bell v. Mastermyne Pty Ltd [2008] QSC 331 at [19]:

  “…The assessment of damages for personal injury depends to a very large extent on a plaintiff’s honest reporting – of his or her symptoms; of their impact on the plaintiff’s life; of preexisting problems; of the genuineness of effort to regain employment after injury; and of their capacity to maintain employment.  These are all difficult issues for a defendant to thoroughly investigate and test.  In truth noone knows what level of pain an individual experiences and what impact that pain has on any particular plaintiff’s capacity to maintain their activities.  Here it is known that the plaintiff was prepared to be dishonest for his financial advantage.  In my view that permeates every aspect of the case.”

[26] It is, in my view, appropriate to take a course whereby one assesses the likelihood of whether a plaintiff will have been honest with a physician who has been engaged to review his physical status by reference to his overall credibility.  There were a substantial number of documents tendered relating to Centrelink’s and Mission Australia’s involvement with the plaintiff.  Mr Mellick, counsel for the defendant, referred to the plaintiff as having an “entitlement mentality”.  That has been established to my satisfaction by the material which has been tendered. The plaintiff was a particularly unimpressive witness in all respects.  I have taken into account the fact that he has had a limited education and may not have been able to express himself as well as others.  There is, though, substantial evidence to demonstrate that his approach to those seeking to assist him to obtain employment has been deceitful.  I do not accept that he was honest when he was describing his symptoms to medical practitioners.  He could not explain how he could attend the gymnasium and exercise frequently and yet still have the pain and incapacity of which he complained.

  1. [19]
    In Putland v Nowak,[3] Muir JA said at [83] and [84]:

[83]  I am conscious of the advantage a trial judge has over an appellate court in deciding questions of credibility in a case such as the present. I am conscious also of the fact that there is evidence accepted by the primary judge which supports his central findings. However, as the above discussions reveal, the primary judge failed to use and misused the advantage he enjoyed as the trial judge. He: misunderstood significant parts of the evidence; failed to have regard to material evidence; failed to understand the significance of and to give due weight to the documentary evidence in assessing credibility; in assessing the evidence of witnesses, particularly that of Messrs Kelly and Boniface, failed to have regard to the fact that substantial parts of their evidence were unchallenged; and generally took a more critical approach to the evidence of the appellant and his witnesses than to the evidence of the respondent and his witnesses.

[84]  As appears from paragraph 38 of the reasons, quoted in paragraph [36] hereof, the primary judge recognised that the respondent was far from a perfect witness. The primary judge was charitable in his assessment. He could, and probably should, have added that the respondent was disposed to give non-responsive, evasive, self-serving and frequently unconvincing answers to questions in cross-examination.

  1. [20]
    The plaintiff has convictions for collaborative assault and battery on 20 November 1998; embezzlement on 20 January 2002; fraud on 13 July 2002 and perjury on 9 May 2003.[4]  He explained the circumstances of these offences in his testimony. 
  1. [21]
    For the charge of collaborative assault and battery on 20 November 1998 he was punished with “100 daily rates fines of DM 50 each”.[5]  The plaintiff explained that during the time he was operating his security company, excessive force was applied by personnel and, on behalf of his security company, he did not contest the complaint within the requisite 28 days.[6]  As to the embezzlement offence, he explained that during the course of operating a phone shop, data was removed from an unrepairable mobile phone.[7]  The seriousness of the conduct is reflected in the resultant punishment of “20 daily rates fines of EUR 30 each”.  He further explained that in the same business an old phone was not returned to a customer with the replacement phone, which resulted in the fraud conviction and a punishment of “65 daily rates fines of EUR 20 each”.[8]  In relation to the perjury offence, he drew a distinction between the German and Australian concept and testified that it resulted from his inability to answer police questions identifying an instigator of a fight.[9]  This offence resulted in a punishment of “40 daily rated fines of EUR 100 each.
  1. [22]
    The plaintiff was also convicted of importing narcotics in Germany on 21 March 2014 resulting in another fine of €50.[10]  The plaintiff explained that he borrowed a car to buy a cheaper coffin for his father’s funeral.  Police located four grams of narcotics in the car, but there was no trace of narcotics on the plaintiff.[11]  This highlighted an inconsistency in the plaintiff’s evidence by comparing the certificate of conviction for the offence on 20 March 2014,[12] the plaintiff’s letter to the Department of Immigration and Border Protection explaining the offence in relation to his use of his son’s vehicle to buy a coffin for his late father,[13] and his solicitor’s letter asserted that “[o]ur client instructs us that his 66 year old father died last Friday 28 April 2014”.[14]  No certificate of death was produced and there was no evidence adduced about the period between the death and funeral, and whether the plaintiff’s father lay in state for any significant time.
  1. [23]
    The plaintiff was arrested for a breach of domestic violence order in 2013.[15]  The plaintiff explained that the proceeding was adjourned a number of times before he left Australia.[16] The plaintiff’s evidence is that the proceeding has discontinued.[17]
  1. [24]
    The plaintiff was a ‘friend’[18] of Nuno Da Silva, a convicted drug trafficker, who he described as a ‘nice man’[19] and who drove him to the hospital after the accident.[20]  He also had a business association with convicted drug trafficker Bruno Da Silva, who he described as ‘a good guy’ but who had changed.[21]  He denied of any meeting depicted in a police surveillance photograph,[22] which was tendered in a limited way.[23]  He had a business association with Nigel Munt, a convicted drug trafficker, which apparently formed when Mr Munt was a member of the solicitors firm acting for the plaintiff.[24]  But the plaintiff denied any direct association with Errol Gildea, a Hell’s Angel member.[25]  He testified that the business association was between Bruno Da Silva and Errol Gildea.[26]
  1. [25]
    The defendants also rely upon the plaintiff’s remark of “10 euros for four grams of amphetamine[27] as demonstrating current knowledge of drug prices.  The plaintiff gave an explanation by harking back to being a “social worker for the last 20 years”.[28]  I did not understand this in a literal sense as being his occupation but rather a reference to his acquired street wisdom.  Since 1994 he has predominantly worked in security and mechanical vocations.[29]
  1. [26]
    The plaintiff’s past offending, his connections and associations with criminals and gang members, and his knowledge of drugs are tantalisingly interesting and unusual. However, there is insufficient basal evidence to draw inferences to the effect that the plaintiff had a predilection or motive to lie and even less so, that the plaintiff was dishonest in relation to this case. It is too great a leap and speculative to tar the plaintiff with guilt by association.
  1. [27]
    At best the defendants assert an attempted fraud by the plaintiff by signing an employment contract[30] with Nuno Da Silva of Millennium Locks on 23 August 2012 which nominated a salary of $66,000 per annum.[31]  Whilst the assertion was made in cross-examination, it was rejected and laid bare in the absence of other evidence.
  1. [28]
    The plaintiff’s Notice of Accident Claim[32] records no previous injuries. The plaintiff testified that his solicitor completed the document.[33]  However, he signed the document on 4 May 2011 declaring the contents to be “true, correct and complete in every respect.”  On page three of the form, the plaintiff declared that he had never previously suffered a significant disability or a personal injury, illness, or disability which might affect the disabilities resulting from the personal injury.  The defendants attack on the plaintiff's veracity relies upon a chiropractor’s file,[34] an MRI on 18 February 2010, and the plaintiff’s statutory declaration dated 20 February 2016[35] as showing a “twelve-year history of past back and hip problems”.  In the statutory declaration the plaintiff admits prior chiropractic treatment from the German chiropractor Peter Oelhafen, which he disclaimed.[36]  He also disclaimed the earnings[37] and refused to elaborate upon his earnings and his loss of business.[38]  While the plaintiff acknowledged his signature on the statutory declaration, he disclaimed its contents, denied he had spoken to his solicitor about such things and was disparaging of him.[39]
  1. [29]
    These matters are all relative and subjective. It seems to me that the plaintiff’s pre-accident condition is consistent with his continuous and arduous work as a motor mechanic. I accept that the plaintiff, a stoic individual, did not perceive his back symptoms as interfering with his work. Nevertheless, his employer’s records tend to indicate his work was disrupted from time to time with ill health.
  1. [30]
    The AP Eagers pay records show some leave without pay, holiday, use of sick leave, and absences from June 2010. Chiropractor certificates taken together with Exhibit 13 indicate that the plaintiff had considerable pre-existing low back pains which caused him to be unable to carry out work for two weeks commencing 15 February 2010.
  1. [31]
    The plaintiff’s employee file indicates various problems involving the plaintiff including complaints of his conduct at work, personality issues, alleged bullying and harassment, and doing competing work. The plaintiff talked about his performance at AP Eagers in detail.[40]  He denied any wrongdoing, especially tax fraud.[41]  I afford greater weight to the plaintiff’s evidence over untested collateral evidence of other workers.
  1. [32]
    However, the records suggest that the plaintiff abandoned his employment by 25 June 2010, culminating in a cancellation of employment under the 457 visa with the comment: “[e]mployee has abandoned position and is not responding to repeated requests for resignation paperwork.”[42]  Emails of 6 December 2010 alleged the plaintiff was conducting his own workshop employing ex-City Peugeot staff.  An email of 14 February 2011 states: “[i]t appears that Magic has totally abandoned his position and set up shop over at Woolloongabba.  He has not worked since June last year.” 
  1. [33]
    The plaintiff’s visa was cancelled shortly after his departure from Australia.[43]  The plaintiff relied upon this event as stifling his appearance at the trial pending permission to re-enter in support of his application to testify by audio-visual link.
  1. [34]
    The defendants’ counsel further argues that the plaintiff’s presentation and demeanour during evidence included ‘catch me if you can’ style answers,[44] disrespect to counsel,[45] and rudeness.[46] 
  1. [35]
    Simply because the plaintiff’s evidence was by audio-visual link does not permit any more or less weight to be given to the evidence or any adverse inference being drawn against him. I would not characterise his answers in terms used by the defendants’ counsel. In relation to memory, there are things that a witness would be expected to remember. Some of life’s events are more important than others and might be remembered more clearly, yet there will be other things, particularly things that happened some time ago, and matters of detail, that are not remembered as clearly, even though the witness is an honest witness. Some witnesses find court unusual and distracting, and sometimes the mode of audio-visual evidence engenders informality and familiarity. Sometimes witnesses appear argumentative in response to confrontational and provocative cross-examination. It seemed to me that the plaintiff was eager to ensure he was understood and satisfied the inquiry of the examiner. Whilst his demeanour occasionally appeared arrogant, argumentative and curt, much of this was manifest by his heavy accent, passionate personality and the style of cross-examination. His demeanour was also consistent with the sequelae of his alleged head injury, which I deal with later.[47]  My impression was that he was otherwise an unrehearsed and spontaneous, yet candid, witness. 
  1. [36]
    The defendants’ submissions are a little over-exuberant in damning the plaintiff as a ‘pathological’ or ‘notorious’ liar, convicted perjurer who has no credit and who has sustained a minor injury, exaggerating its effect to pay off debts to the Hell’s Angels. Much of the defendants’ attack on the plaintiff’s credit relies upon collateral matters going to his credit. They were not directly or indirectly relevant to the issues in the case, or otherwise proven.
  1. [37]
    However, I think the plaintiff has an overly optimistic perception of his pre-accident condition and work capacity, and has an overly pessimistic perception of his future capacity due to the accident. This has coloured his explanations about his plight in life, inconsistent evidence and prior convictions including perjury. Whilst he was not shown to be a “notorious” or “pathological” liar, his credit was diminished and there was inaccurate reporting to medical practitioners. I will give the plaintiff’s evidence lesser weight where he seemed unreliable and unsupported by other testimony or documents.

Causation

  1. [38]
    The plaintiff alleges that he suffered multiple injuries as a result of the accident and the pivotal question is whether it is more probable than not that there is a causal relationship between the first defendant’s negligence and the plaintiff’s impairment.
  1. [39]
    The plaintiff has the onus to prove a sufficient connection between the breach and the loss suffered. The plaintiff must prove that every item of loss for which he claims damages is connected to the first defendant’s wrong in the sense that the wrong caused or materially contributed to that loss.[48]   It is a question of fact.[49]  The relevant question is whether the first defendant’s negligence was so connected with the plaintiff’s loss or damage that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it.[50]
  1. [40]
    As a result of this exercise I have ascribed an Injury Scale Value (ISV) to each injury as prescribed by the Civil Liability Act 2003 (Qld) (“the Act”) and the Civil Liability Regulation 2003 (Qld) (“the Regulation”).

Back injury

  1. [41]
    The plaintiff complains of continuing back pain since the accident.
  1. [42]
    Dr Todman records the plaintiff informing him that he had a back operation in the 1990s but the plaintiff disavowed telling Dr Todman this.[51]  He could not remember telling Dr John Cameron that he’d seen a chiropractor about a week before the accident.[52]  The plaintiff could not recall telling Dr Wallace his history to the effect that:

“[i]n the past he has had intermittent lower back pain.  No other past surgical history or past medical history.  He states that he had been to a chiropractor intermittently for treatment for his back pain in the past.”[53]

  1. [43]
    On 15 February 2010 the plaintiff completed a self-assessment[54] for his chiropractor and indicated that he had: unbearable low back pain with sciatic pain down his left leg and had many broken bones/fractures; past and present mid and low back pain; present spinal disc problems/sciatica; present arm/leg pain and a family history of low back pain.  The clinical note of 18 February 2010 refers to the plaintiff having really bad back that morning requiring icing.[55]  The chiropractor’s notes also refer to the plaintiff having previously received an injection of cortisone in his lumbar spine.  The plaintiff was referred for X-ray investigations of the lumbar spine.  The resultant report of 18 February 2010 revealed a moderate left paracentral posterolateral L5/S1 disc protrusion with minimal pressure on defending left S1 nerve root.
  1. [44]
    Post-accident X-ray investigations of 3 May 2011 found there was narrowing of the lumbosacral disc with marginal osteophytes in keeping with spondylotic change. The alignment of the lumbar spine was normal and there was no subluxation identified. The posterior elements were intact, sacroiliac joints were normal, and no fractures or subluxations were identified.
  1. [45]
    The medical reports of Drs John Cameron, Ian Dickinson and Thomas Kossmann all ascribe 0% whole person impairment in respect of both the cervical and lumbar spine.
  1. [46]
    Dr Cameron, consultant neurologist, examined the plaintiff for his report dated June 2012. On examination the plaintiff had a normal gait and had normal back, shoulder and neck contours. He had a full range of neck and shoulder movements. He was able to lumbar flex reaching his ankles. Dr Cameron did not find any evidence of neurological impairment. The plaintiff reported no radicular symptoms spreading from his back into his legs. He diagnosed the plaintiff as having suffered soft tissue injuries to his chest, face, lower back and left ankle. He found no evidence of any residual lumbar or cervical impairment related to his injuries.
  1. [47]
    Dr Malcolm Wallace saw the plaintiff and produced three reports dated 11 March 2012, 6 July 2012 and 19 July 2013. The plaintiff told Dr Wallace of intermittent low back pain and past chiropractic treatment. In his report of 11 March 2012, Dr Wallace found that the plaintiff walked with a normal gait and had no spinal deformity. The plaintiff had tenderness in the areas of his cervical and lumbar spine. His cervical spine had normal flexion and extension and normal rotation and lateral flexion to the left but reduced lateral rotation to the right. For the lumbar spine, he had normal range in forward flexion and extension and lateral flexion to his left and right. He opined that the plaintiff sustained a chronic musculigamentous injury of the cervical spine and chronic soft tissue injury of the lumbar spine. Dr Wallace assessed the DRE II Category impairment of the cervical spine as a 5% whole person impairment and the DRE I Category impairment of the lumbar spine as a 3% whole person impairment. In his final report dated 19 July 2013, Dr Wallace noted no significant abnormality in the plaintiff’s cervical and lumbar spine.
  1. [48]
    Dr Dickinson’s report of 11 July 2012 revealed no past history of back or neck problems and his cervical and lumbar spine examination showed no evident impairment. The plaintiff was tender over the left side of the cervical spine. That area was tender with full range of motion of the cervical spine. The plaintiff was able to flex his lumbar spine to almost touch the floor. Extension, lateral flexion and rotation were normal. With these examination results, Dr Dickinson found no abnormality or impairment of the plaintiff’s cervical spine or lumbar spine. He concluded that the plaintiff’s injuries were soft tissue injuries of the cervical spine and lumbar spine (and left ankle).
  1. [49]
    In his report dated 8 May 2015, Dr Kossmann recorded his examination results. He opined that the plaintiff “seems to suffer from pain in his cervical and lumbar spine and his left ankle.”[56]  He assessed that the plaintiff’s cervical spine injury has a DRE cervicothoracic Category I and ascribed a 0% whole person impairment and the lumbar spine has a DRE Category II but with a pre-existing component which requires apportionment so that there is a 0% whole person impairment.
  1. [50]
    It seems to me that the plaintiff suffered painful minor soft tissue back injuries against a significant and ongoing history of back symptoms. I assess the cervical injury as Item 89 minor cervical injury ISV 1 and the lumbar injury as Item 94 minor lumbar injury ISV 1 as a result of the accident.

Teeth injury

  1. [51]
    Dr Greg Scavlos’ report dated 25 November 2011 records that the impact suffered by the plaintiff broke a bridge constructed from teeth 23 to 27. His lower left tooth 37 was also broken and required extraction.[57]  The report enclosed a treatment plan consistent with serious damage to more than three teeth and serious gum injury.  This exceeds Item 18.2 loss or serious damage to two or three teeth, moderate gum injury, or moderate gum infection, ISV 3 to 5.
  1. [52]
    In my view, Item 18.1 is the appropriate category, namely loss of or serious damage to more than three teeth, serious gum injury or serious gum infection with an ISV range of 6 to 10. I opine that an ISV of 8 was caused by the accident.

Left ankle injury

  1. [53]
    The plaintiff’s left ankle was recorded as being swollen in the Mater Hospital Records. The MRI of the left ankle on 22 May 2012 (attached to Dr Wallace’s report of 11 March 2012) was clear.
  1. [54]
    It seems to me that the plaintiff sustained an injury to his left ankle in the accident which is painful and swells from time to time. The plaintiff described that pain in the left ankle (extending up the leg) is elevated with standing and walking, and accompanied with swelling, pins and needles, and restricted movement.[58]
  1. [55]
    At Dr Cameron’s examination on 19 June 2012, the plaintiff had “[m]inimal swelling around the left ankle on measurement”.  But on the previous day Dr Dickinson found it was normal.  Dr Wallace has assessed a 4% whole person impairment and Dr Kossman a 3% whole person impairment and an additional 1% to the left hind foot injury.
  1. [56]
    I classify the injury as a minor ankle injury described in Item 144 with an ISV range of 0 to 5. An assessment at the top of the range would reflect the whole person impairment despite the absence of any fracture or radiological evidence of any injury. I will allow an ISV of 5 caused by the accident.

Pelvis injury

  1. [57]
    The plaintiff described a sensation of grinding and hip pain which he rated as 3 or 4 out of 10.[59]  I got the impression that this was induced by the plaintiff’s endurance through the presence of his restricted and painful back and ankle symptoms.  The alleged left pelvis injury has not featured prominently in the orthopaedic reports.  I am unable to discern any permanent impairment in order to assess an ISV attributable to the accident.

Head injury

  1. [58]
    The plaintiff pleaded that he suffered a closed head injury particularised as a “Closed Head Injury – Item 8 ISV 6-20”.[60]  There could be no doubt that the plaintiff was referring to a “Minor Brain Injury” described in Item 8 of Schedule 4 of the Regulation.
  1. [59]
    The plaintiff’s counsel contrasts the plaintiff’s post-accident capacity with his pre-accident maintenance of “high level employment” and receipt of the Golden Lion Award by Peugeot in Australia. The plaintiff testified that his post-accident problems include headaches, short-term memory and concentration, forgetfulness of details of conversations and daily events, disorganised thoughts, poor forward planning, dizziness and vertigo, loss of balance, unfocused vision, poor sleep patterns, and trouble watching television.[61]  The plaintiff relies upon the evidence of Dr Todman, Dr Mathew and Ms Anderson.
  1. [60]
    The defendants dispute that the plaintiff merely had a mild head injury. They point to the plaintiff’s comparative past behaviour of associating with drug offenders, gang members, and his conduct at AP Eagers vis-à-vis other staff, absenteeism, competition and abandonment of his work. The defendants rely upon Dr Cameron’s evidence.
  1. [61]
    I accept that the plaintiff suffered head trauma. The dentist, Dr Sclavos, reported on 25 November 2011 that: “[f]or this bridge to have snapped off it would have had a severe blow to that side of his head as these bridges are built for life.”[62]
  1. [62]
    The progress notes of the Mater Hospital file[63] describe the plaintiff as “? Dazed @ time”.  This is corroborated by the evidence of his son, Malcolm.  The emergency health team noted “[p]atient states he was knocked out.”  His Glasgow Coma score was 15.  The CT scan taken on 3 May 2011 was clear; so too was a later MRI scan.
  1. [63]
    In his report dated 5 March 2012, neurologist Dr Todman compared the plaintiff’s capacity as a “highly trained automotive engineer … involved in training staff” and in “high level work as an engineer and trainer”, with his state now, that is, “severely hampered by his ongoing symptoms [of] dizziness and incoordination as well as tremors, headaches and memory and cognitive symptoms.[64]  He assessed the plaintiff’s condition in AMA5 Table 14.6 as being at the upper end of the range for a Class One impairment in cognitive function and a 10% whole person impairment, plus a further 3% whole person impairment for his frequent post traumatic headaches under Table 18.1 of AMA5.  In his later file note Dr Todman affirmed the opinion that the plaintiff had suffered a “mild traumatic brain injury” Category 1 as a result of the accident.  His opinion remained unchanged after later reviewing the MRI films.[65] However, he conceded in cross-examination that the neuropsychological tests were “inconclusive”.[66]
  1. [64]
    In his report dated 22 June 2012 Dr Cameron, consultant neurologist, relied upon the plaintiff’s pre-accident functioning with a bachelor of engineering, work in mechanical engineering, multilingual fluency and as a fuel researcher for Peugeot Australia. In contrast, the plaintiff reported to Dr Cameron post-accident problems including forgetting details, ongoing memory disturbance, loss of confidence, trouble planning, headaches, light sensitivity, dizziness, poor sleep and nervousness. Dr Cameron found the plaintiff very anxious and rambling, but with no dysarthria or dysphasia. His movements were normal without spasm, and his cranial nerves (1-12) were also normal. He concluded that it appeared the plaintiff did not suffer any significant head injury as he could recall the events up to the point of the impact and subsequent. He found no evidence of neurological impairment. In Dr Cameron’s later conference note dated 22 February 2016, Dr Cameron maintained his disagreement with the opinions of Dr Todman and Ms Anderson. He also testified that he did not accept the hospital record to the effect that the plaintiff was “knocked out”.[67] 
  1. [65]
    Dr Mathew in his previous report dated 21 November 2012[68] opined at page 11:  “I was left with a strong clinical impression of an acquired brain injury and it is my opinion that this is the most likely cause for his cognitive symptoms.”  After Dr Mathew watched the plaintiff give evidence he made a supplementary report of 1 March 2016 which included:

The most striking aspect of Mr Mashaghati’s presentation was his lability. Within seconds, Mr Mashaghati would shift from appearing calm to becoming agitated, loud, speaking quickly and appearing frustrated.  He was irritable.[69]

The most likely cause of this disturbance in Mr Mashaghati was the effect of an Acquired Brain Injury.  Brain injuries are commonly associated with lability, irritability and disinhibitions.[70]

 My previous opinion with regard to Mr Mashaghati’s Acquired Brain Injury remains unchanged.[71]

  1. [66]
    Ms Debbie Anderson, clinical neuropsychologist, assessed and provided reports dated 17 February 2012 and 27 August 2012. On the first occasion she was unable to conduct a full range neuropsychological evaluation in order to assess potential underlying brain injury. In her second report she opined that the plaintiff continued to present a high level of psychological distress. She considered that a further neurological assessment was dependant upon the plaintiff’s overall psychological adjustment and recommended treatment to that end. Ms Anderson maintained a PIRS rating of 15% whole body impairment.
  1. [67]
    Ms Anderson also saw the plaintiff testify and provided a supplementary report. She opined:[72]

“Traumatic brain injury (even quite mild injury) can cause changes in behaviour, which include emotional ability, irritability, increased aggression and poor ability to control behaviour. …

Given the persistence of the high level of irritability, emotional lability and lack of behavioural control, it raises the possibility that the behavioural change (which has consistently been reported as a change) is the result of mild brain injury, rather than a psychiatric condition alone. …

Thus, in my view this additional behavioural observation (along with the cognitive test results previously reported which indicated some cognitive dysfunction) indicates that it appears more likely that he is suffering from the enduring effects of a traumatic brain injury.”

  1. [68]
    Professor Whiteford, professor of psychiatry at the University of Queensland and consultant psychiatrist, reported on 22 May 2013.[73]  Whilst the plaintiff’s presentation at the interview was consistent with his reported symptoms, Professor Whiteford found it impossible to determine the presence of a traumatic brain injury.  He considered that the high levels of stress reported by Ms Anderson did not independently confirm the presence of cognitive impairment to traumatic brain injury.  He opined that the plaintiff meets the American Psychiatric Association Diagnostic and Statistical Manual Fourth Edition (DSMIV) diagnostic criteria for post-traumatic stress disorders.[74]
  1. [69]
    I prefer the evidence of Dr Todman, Dr Mathew and Ms Anderson, but not without reservation.
  1. [70]
    Whilst I accept that the plaintiff suffered a minor head injury, I am not satisfied that his post-accident presentation differed too much from his pre-accident condition in terms of his irritability, emotional liability and uncontrolled behaviour. However, I accept that these have become more pronounced together with new post-accident symptoms including headaches, forgetfulness, dizziness and vertigo, impaired vision and poor sleep patterns. These do not significantly interfere with his sociability or prevent his return to work. He does not have an increased risk of epilepsy and ought not be considered at or near the top of the range of Item 8.
  1. [71]
    Item 8 in Schedule 4 of the Regulation provides:

“An ISV at or near the top of the range will be appropriate if any person has –

(a) an increased risk of epilepsy; and

(b) ongoing reduced concentration and memory, or reduced mood control, but does not significantly interfere with the person’s ability to take part in normal social life or return to work.” 

  1. [72]
    I would allow an ISV of 15 being in the mid to upper range for an Item 8 minor brain injury caused by the accident.

Psychiatric injury

  1. [73]
    The plaintiff’s psychiatric state heavily depends on the plaintiff’s accurate self-reporting. The plaintiff submits that the injury is not a dominant one. The defendants submit that the plaintiff is a discredited witness or has serious prior psychological issues in any event.
  1. [74]
    Dr Mathew, psychiatrist, originally reported on 21 November 2012 that the plaintiff has a chronic post-traumatic stress disorder, a chronic major depressive disorder and a provisional diagnosis of mild acquired brain injury.[75]  Dr Mathew opined: 

“Mr Mashaghati has a permanent impairment arising from his psychiatric symptoms and his cognitive difficulties.  Given the diagnostic uncertainty surrounding the cognitive symptoms (i.e. secondary to his depression and anxiety or due to the effects of a brain injury), I have applied the Psychiatric Impairment Range Scale (PIRS).

He has a whole person impairment of 15% (15%).”

  1. [75]
    After seeing the plaintiff give evidence Dr Mathew conceded in his most recent report that the impairment level of the plaintiff has decreased.[76]
  1. [76]
    In his report of 22 May 2013,[77] Professor Whiteford opined that the plaintiff meets the American Psychiatric Association Diagnostic and Statistical Manual, Fourth Edition (DSMIV) diagnostic criteria for post-traumatic stress disorders.[78]  But his level of cognitive difficulty was explained by his anxiety.[79]  Professor Whiteford using the PIRS rating assessed a 7% whole person impairment.  However, he considered that the cause was multifactorial, including the plaintiff’s relationship breakdown in February 2012, the imposition of a domestic violence order, his inability to have contact with his daughter, his father’s ill health and inability to see him, and immigration stress.  There could be a spectrum of significantly causative factors.
  1. [77]
    It seems to me that the accident is likely to be a substantial and significant causative event. Therefore, I prefer the evidence of Dr Matthew over Professor Whiteford having regard to the plaintiff’s history and relevant matters disclosed by the evidence.
  1. [78]
    I will allow an Item 13 moderate mental disorder with an ISV range of 2 to 10, being “a mental disorder with a PIRS rating between 4% and 10%”.  I assess an ISV of 6 attributable to the accident.

Assessment of General Damages

  1. [79]
    In assessing the applicable ISV the court must choose the “dominant injury” and adopt an ISV in the range for that injury, taking into account that the ISV may be higher in the range than if there were only a single injury. ‘Dominant injury’ is defined in Schedule 7 of the Regulation:

“If the highest range for 2 or more of the injuries of the multiple injuries is the same—the injury of those injuries selected as the dominant injury by a Court assessing an ISV the Court will have regard to the criteria set out in the Civil Liability Regulation 2003 (QLD); or

Otherwise—the injury of the multiple injuries having the highest range.

Note—

The selection as a dominant injury of a particular injury from 2 or more injuries having the same highest range will not affect the outcome of the Court’s assessment of an ISV for the multiple injuries.”

  1. [80]
    Since I have found the plaintiff has suffered multiple injuries with the relevant ISVs, I will now determine the dominant injury and determine where in the range of ISVs provided for that injury it should fall, and then determine whether the maximum ISV in that range adequately reflects the adverse impact of all the injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25 per cent above the ISV for the dominant injury.
  1. [81]
    The comparative dominance of the more serious injuries are:

Injury

Item No.

ISV

Head injury

8

15

Teeth injury

18.1

8

Psychiatric injury

13

6

Ankle injury

144

5

Back injury

94

1

  1. [82]
    In my view, the plaintiff’s dominant injury is his head injury with an ISV of 15. I will apply an uplift of 30% to take account of the multiple medical conditions.
  1. [83]
    A resultant ISV of 20 equates to general damages in the amount of $30,600.00

Economic loss

  1. [84]
    The plaintiff is an Australian recognised motor mechanic with experience commensurate with his age and positions.
  1. [85]
    There were various descriptions of the plaintiff’s occupation and qualifications recorded as history in the medical reports housed in exhibit 9. For example:
  1. (1)
    the report of Ms Anderson of 17 December 2012 has that the plaintiff held a “Masters of Mechanical Engineering and … a role as a research officer at the University of Queensland”;
  1. (2)
    the report of Dr Wallace of 11 March 2012 has that the plaintiff “was educated and qualified with university degrees in mechanical engineering … [and] qualified as a mechanical engineer and he has a master’s degree in engineering… [H]e also has a Cert IV in Training which allows him to teach at TAFE, which he continues to do”;
  1. (3)
    the report of Dr Cameron of 22 June 2012 has that the plaintiff “told me he has a Bachelor of Engineering degree from the University of Queensland. He is involved in alternative fuel research for Peugeot in Australia. He works in a consultant role.[80] “He says he has world titles in mechanical engineering but is now forgetting details. At present he is involved in the engineering development of a motor which runs on alternative energy.”
  1. (4)
    Dr Matthew’s report of 21 November 2012 has that “[a]fter completing school, Mr Mashaghati completed an apprenticeship in mechanics and then obtained a degree in mechanical engineering… In 2010 he won first place in a competition for Peugeot mechanical engineers. There were 55,000 entrants. He reported in 2010/2011 he gained entry into the Guinness Book of Records after developing the world’s most efficient engine on a drive from Alice Springs to Adelaide. He has been lecturing and researching at the University of Queensland prior to his injury.
  1. (5)
    Professor Whiteford’s report of 23 May 2013 has that the plaintiff “said he was also involved in research and teaching in the engineering department at the University of Queensland. He has had to give up his teaching and research activities.
  1. (6)
    Mr Kossman’s report of 8 May 2015 has that the plaintiff “told me he was a consultant at the University of Queensland for 2 years.
  1. [86]
    The elevation of the plaintiff’s vocation is clearly inaccurate. In truth the plaintiff is an awarded motor mechanic by trade, but he has no formal tertiary qualification in that field.[81]  My impression is that the plaintiff did not deliberately embellish his qualifications, but merely sought to equate his learning and experience with a recognised Australian equivalent.  He has worked as a mechanic himself and in employment and is a performance car enthusiast. 
  1. [87]
    The plaintiff was offered a short-term, six-week contract from 17 October 2011 to 30 November 2011 for $7,500 to perform consultancy work to restore and convert a Citroen engine to diesel along with record keeping to enable the system to function according to specifications.[82]  The appendix details the nature and extent of the mechanical services, system compliance, recording the work, and compiling a parts list.  Whilst it was not academic work, it would not be inaccurate to describe it as “research” in nature.
  1. [88]
    Compared to his pre-accident capacity, the plaintiff testified about how his working capacity has changed since the accident, in particular:
  1. (a)
    he previously did heavy work and that the work he does now is different;[83]  he is now unable to do heavy work;[84]
  2. (b)
    he cannot do electrical work;[85]
  3. (c)
    he is now required to use a lifting jack;[86]
  4. (d)
    his efficiency has decreased;[87]
  5. (e)
    now he cannot stand for too long;[88]
  6. (f)
    when he bends over the bonnet of a car he has pain in his back;[89]
  7. (g)
    he now experiences a loss of memory and that is frustrating;[90]
  8. (h)
    he would now be unable to get a foreman job;[91]
  9. (i)
    he cannot use 80% of his tools anymore;[92] and
  10. (j)
    his hands shake.[93]
  1. [89]
    The plaintiff’s son, Malcolm, testified about the plaintiff’s post-accident capacity, including his trouble concentrating;[94] problems bending over and lifting heavy items;[95] reduced work hours in the order of 20 hours per week;[96] that he required assistance by Malcolm with lifting in the workshop in Germany;[97] that he misplaces things;[98] and that he cannot work for too long or stand around.[99] 
  1. [90]
    The plaintiff acknowledges that he has a residual earning capacity and the claim is premised on a loss of $500 net per week having regard to the wage in Germany for a mechanic equating to Australia of $1,000 net per week.[100]  Since the accident, there have been 258 weeks.  A simple mathematical calculation on the basis that the plaintiff has a 50% residual earing capacity or $500 net per week would therefore equate to past economic loss of $129,000.  However, the plaintiff claims for past economic loss from the time he returned to Germany on 23 September 2013 being 133 weeks, which equates to $66,500 for past economic loss.
  1. [91]
    The plaintiff’s tax returns do not bear out the claimed pre-accident capacity of $1,000 net per week after proper account of deductions relevant to the nature of the plaintiff’s work. They reveal net weekly earnings between $555 up to $660 for the period from 2007 to 2011:

Year

Employer

Gross Income

Income Tax

Deductions

Nett

Nett Weekly Average

2007

City Automotive Group

$54,809

$16,401

$9,567

$28,841

$555

2008

City Automotive Group

$63,096

$19,358

$11,501

$32,231

$620

2009

City Automotive Group

$68,105

$16,470

$17,328

$34,307

$660

2010

City Automotive Group

$62,798

$13,640

$18,445

$30,713

$591

2011

City Automotive Group

$959

$312

Nil

$647

N/A

  1. [92]
    The plaintiff’s son, Malcolm, testified that his father worked in late 2010 at his EMS workshop in Woolloongabba.[101]  However, the plaintiff maintained that he did not receive any other income and yet managed, as a single father, to save $100,000 over five years in Australia.[102]  How he did that can only be a matter of mystery, intrigue and conjecture.
  1. [93]
    The evidence is wanting in relation to employment efforts since then. When he gave notice of his claim the plaintiff asserted an average net income of $2,000 for a 40-hour week.[103]  However, he has not disclosed any financial information showing any receipt of income since 18 February 2011.  There is the employment contract signed on 24 August 2012 between the plaintiff and Nuno Da Silva of Millennium Locks as a technical advisor/mechanic for $66,000 per annum.[104]  I am not satisfied that this was acted upon.
  1. [94]
    The plaintiff explained that his lack of disclosure of financial documents and income tax returns resulted from the failure of his business associate, Bruno Da Silva, to produce them.[105]  I am not aware of any attempt to force production of these documents by subpoena or otherwise.  These matters nevertheless impact upon the precision of any economic loss assessment.
  1. [95]
    The plaintiff apparently told both Dr Wallace and Dr Todman that he had two weeks away from employment before returning to part-time sedentary duties. 
  1. [96]
    The defendants rely upon the plaintiff’s return to work and that he “refuses” or “has chosen to produce nothing to the Court” by way of income tax returns and financial documents for 2011 to 2015. It is argued that he has deliberately failed to procure evidence for the purposes of assessing economic loss and that therefore it ought to be assessed in a most conservative fashion – as nil.
  1. [97]
    The High Court in Malec v J C Hutton Pty Ltd[106] held that when considering an injured plaintiff’s financial position, if not for the injury, damages should be assessed on the basis of degrees of probability.  That is so even if there is thought to be a less than even chance of loss.  The Court recognised that the assessment of economic loss is neither scientific nor an arithmetic calculation.  The principle is found in the judgment of the majority (Deane, Gaudron, and McHugh JJ) at 642-3 as follows:

"A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect to events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9% - or very low - 0.1%. But unless the chance is so low as to be regarded as speculative - say less than 1% - or so high as to be practically certain - say over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses a degree or probability that an event would have occurred or might occur, and adjusts its award of damages to reflect the degree of probability. ... The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."

  1. [98]
    Brennan and Dawson JJ agreed with the general thrust of the majority but considered it undesirable for damages to be assessed on the footing of an evaluation expressed at a percentage, and did not like using 'probability' to describe the possibility of occurrence of a situation that is minimal.[107]
  1. [99]
    Degrees of probability must be taken account of with respect to both pre-trial and post-trial economic loss. It is usual for those heads of damage to be assessed separately as past and future economic loss to realise greater accuracy. However, in my view where there is dearth of pre-trial and post-trial evidence it is open to make a single assessment of all post-accident economic loss.
  1. [100]
    I disagree with the defendants’ submission that the present case is one where a nil assessment is justifiable in reliance upon the minority judgment of Thomas J in Malec v J C Hutton Pty Ltd.[108]  There, His Honour set out various principles relevant to marginal cases.  Where damage is capable of precise proof, and a plaintiff fails to produce such proof, no assessment (or a nil assessment) may be made.[109]  In cases where some loss is suffered but the plaintiff has unreasonably failed to produce available evidence, a very conservative estimate of damages may be made.[110]  This may be contrasted with the familiar exercise of assessing damages upon issues which of their very nature are incapable of precise proof, such as future economic loss and past economic loss, where the court does its best with necessarily imprecise matters.[111]  Still, in those cases the plaintiff must prove the essential facts upon which the necessary inferences and projections are to be made.
  1. [101]
    Each case must depend on its own facts. Here the plaintiff has shown some physical and mental disability from an accident which have reduced his working capacity and are likely to realise economic loss.
  1. [102]
    Dr Todman in his report of 5 March 2012 opined:

“Any return to his previous work would be dependent on improvement in symptoms with future treatment. At this stage it seems very unlikely he would be able to return to his high level work”.[112]

  1. [103]
    Dr Mathew in his report of 21 November 2012 found that:

“Mr Mashaghati is fit for basic mechanical work.  He is, however, unable to manage many of the previous high level work that he had been engaged in. This included teaching and research at a University and management.

Occupational limitations arising from his physical injuries require separate assessment by the relevant specialist.[113]

  1. [104]
    Mr Kossmann at page 9 of his report found that:

“Mr Mashaghati’s injuries, which he suffered in the motor bike accident have affected his day-to-day work in a certain extent. He has a swollen ankle and pain in his cervical lumbar spine, which may have an effect on his day-to-day work. Whilst I believe that he is still able to carry out most of his day-to-day work activities, he may be impaired to a certain extent as a result of the injuries to his ankle and cervical and lumbar spines.”

  1. [105]
    The plaintiff will have a continuing difficulty performing the heavy aspects of mechanical work and he is likely to suffer economic loss and be disadvantaged in the open labour market. Whilst the state of the evidence does not enable a simplistic "A minus B" equation, the nature and extent of the continuing impairment warrants more than a trivial or nominal award without plunging into unacceptable speculation and conjecture.
  1. [106]
    Even though the net wage of a mechanic in Germany is approximately AUD$1,000 net per week, I see no proven basis to elevate the plaintiff’s unhindered capacity to this level. In my view the plaintiff’s earnings but for the accident were likely to be similar to his pre-accident earnings between $550 to $660 net per week taking into account allowable deductions consistent with the plaintiff’s past accounting.
  1. [107]
    The plaintiff explained that when he was unable to get sponsorship, and didn’t need Millennium Locks any more, he worked in his own fully equipped workshop in Nerang. There he did jobs “from his hips up” with little standing, including automotive electrical and wiring, on an average of 20 to 30 hours per week.[114]  He compared this to his work at Peugeot when he was able to simultaneously work on three cars over 50 or 60 hours a week.[115]  Whilst he might have worked at a higher rate from time to time, I do not accept that he consistently sustained work at that level or at 18, 19 or 20 hours per day at the time or the accident.[116]  The plaintiff’s son, Malcolm, testified that in lieu of working 40 hours per week he is now really only working 20 hours per week.[117]  Although, Malcolm denied that his father was working up to 40 hours per week in the workshop at Nerang.[118]  I am not persuaded that the plaintiff was capable of consistently and sustainably working more than 40 hours before his accident.
  1. [108]
    Given the plaintiff’s stoic nature and the likelihood that he will push himself, doing the best I can on the available evidence, I think that his residual earning capacity will be in the upper end of the range 50% to 75%. I assess an average weekly loss of about $200 for his reduced capacity subject to the exigencies of life.
  1. [109]
    On this basis, I assess the plaintiff’s past economic loss at $31,400.00, being $200 net per week for 157 weeks from the time he returned to Germany on 23 September 2013.
  1. [110]
    I also allow interest of $1,336.73 at the rate of 1.41%,[119] and I calculate past superannuation loss at $2,983.00 using the rate of 9.5%.

Future economic loss

  1. [111]
    The plaintiff is a stoic and determined individual and it is likely that, but for the injury to his left hand, he would have worked to age 67. He was born on 6 August 1975 has a potential future working life of approximately 26 years to age 67.
  1. [112]
    The plaintiff’s claims $293,625.00 being an ongoing loss of $500 net per week for the remainder of his working life discounted by 25%. This might reflect the degree of disability contended, but I have found less so.
  1. [113]
    The circumstances of this case do not enable me to precisely calculate future economic loss and I prefer a global award. There are many variables and imponderables arising out of the plaintiff’s symptoms, his pre-existing state, the progressive deterioration in his manual occupation, the medical evidence showing misbehaviour at work, significant and ongoing history of back symptoms, cessation of his current employment in order to move to Germany, limited and general work and financial evidence since the accident, risks of the labour market, residual work capacity and his employability in the area of skill and experience.
  1. [114]
    I will allow $75,000.00 for future economic loss.  I rationalise this outcome by using $200 net per week loss of earning capacity for 27 years to age 67 using the 5% multiplier of 768.7 to achieve $153,740 and then applying a discount of about 50% for contingencies.
  1. [115]
    I will allow future superannuation loss of $8,497.50 using the rate of 11.33%. 

Special damages

  1. [116]
    The plaintiff gave evidence that he has spent something in the order of $20 per week on medication since the accident, which equates to $5,160 for 258 weeks since the accident until trial.
  1. [117]
    Whilst the defendants acknowledge that the plaintiff has incurred expenditure, they contend that there is no loss because the second defendant has reimbursed him as follows:

Radiology

$759.30

Chiropractic Treatment

$55.00

Mater Private Expenses

$268.00

General Practitioner Fees

$80.00

Dental Treatment

$6,548.00

Psychological Treatment

$4,224.00

Total

$11,934.30

  1. [118]
    The plaintiff has consistently told the doctors that he was not taking medication.[120]  During his evidence he denied taking “a tablet or any medication”[121] but later recanted from this.  I do accept that the plaintiff has not regularly or consistently used medication. 
  1. [119]
    In my view, he is likely to have required and expended money on chiropractic treatment, counselling, topical agents and medication from time to time since the accident beyond those reimbursed and make a nominal award of $500.00 for special damages including interest.

Future expenses 

  1. [120]
    The plaintiff claims $31,755.00 for future medical expenses being $30 per week (approximately €20) for a period of 30 years discounted by 25%, together with $13,260.00 for treatment.
  1. [121]
    In his first report Dr Mathew estimated further treatment costs to be $13,260.00.[122]  Professor Whiteford also foreshadowed further treatment of 20 sessions at $212.00 per session, totalling $4,240.00.  He also opined that the plaintiff requires pharmacotherapy such as sertraline at the dose of 150 mg per day for six months at the cost of $34.40.
  1. [122]
    Given the plaintiff’s attitude to medication, I do not accept that he will incur $30 per week for medication. However, I will allow $13,760.00 being a nominal $500.00 for other chiropractic treatment, counselling, topical agents and pharmacotherapy (albeit taken reluctantly), and $13,260.00 for psychiatric treatment.

Future care and assistance

  1. [123]
    There is evidence from both the plaintiff[123] and his son Malcolm[124] that care and assistance is currently being provided to the plaintiff on a gratuitous basis by Malcolm. 
  1. [124]
    The plaintiff’s claim is premised on the basis that the gratuitous care will cease at some point in the future when Malcolm will leave his father to establish his own life. At that time, the plaintiff will be required to pay to obtain assistance with heavier domestic duties. The plaintiff submits an entitlement to $24,465.00 using a rate of $35 per hour for 42 years, discounted on the 5% tables, and that a further 25% should be used for contingencies.
  1. [125]
    Section 59 of the Act provides:

Damages for gratuitous services provided to an injured person

  1. (1)
    Damages for gratuitous services provided to an injured person are not to be awarded unless—
  1. (a)
    the services are necessary; and
  2. (b)
    the need for the services arises solely out of the injury in relation to which damages are awarded; and
  3. (c)
    the services are provided, or are to be provided—
    1. (i)
      for at least 6 hours per week; and
    1. (ii)
      or at least 6 months.
  1. (2)
    Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.
  2. (3)
    In assessing damages for gratuitous services, a court must take into account—
  1. (a)
    any offsetting benefit the service provider obtains through providing the services; and
  2. (b)
    periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.
  1. [126]
    I am not satisfied that the evidence meets the statutory threshold of six hours per week for more than six months.  The plaintiff’s claimed need for assistance seems excessive and inconsistent with the evidence of Dr Todman who estimated a need of four hours per week, and Mr Hoey who estimated two to three hours per week.
  1. [127]
    Therefore, I will not make any award for future care and assistance.

Conclusion and orders

  1. [128]
    For these reasons, I assess damages and give judgment to the plaintiff against the defendants for $164,077.23 summarised as follows:

General damages

$30,600.00

Past Economic Loss

$31,400.00

Interest

$1,336.73

Past Superannuation Loss

$2,983.00

Future Economic Loss

$75,000.00

Future Superannuation Loss

$8,497.50

Past Special Damages & interest

$500.00

Future Special Damages

$13,760.00

Past and future care and assistance

$0

Total

$164,077.23

  1. [129]
    I will hear the parties further on the issue of costs.
  1. [130]
    Unless either party applies for, or the parties otherwise agree to, a different costs order within 14 days of this judgment, I will also order that the defendants pay the plaintiff’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Judge Dean P. Morzone QC

Footnotes

[1] [2008] QSC 331 at 19.

[2] [2011] QSC 097 at [25] and [26].

[3] [2012] QCA 121.

[4] Exhibit 16.

[5] Exhibit 16.

[6] T3-13/27 – 45; T3-14/4-6.

[7] T3-14/ 35-40, 45-46 and T3-15/ 1-5.

[8] T3-14/10-17; T1-61/1-14.

[9] T3-15/5-15; T3-15/26-35; T3-16/25-36; T3-17/5-12.

[10] Exhibit 15.

[11] T3-15/5-15; T3-15/26-35; T3-16/25-36; T3-17/5-12.

[12] Exhibit 15.

[13] Exhibit 6.

[14] Exhibit 7.

[15] T3-21/2; Exhibit 13 – Plaintiff’s Statutory Declaration of 20 February 2016.

[16] T3-20/34-46; T3-21/1-2.

[17]   T3-20/38-45.

[18] Plaintiff’s description in Exhibit 9 – Mater Hospital File.

[19] T3-70/43.

[20] T3-88/36.

[21] T2-38/1-6.

[22] T3-65; Exhibit 14; T4-39/25; T4-42/20.

[23] T4-39/39 ff.

[24] T2-107/5-40.

[25] T2-111.

[26] T2-39 /15-25; T2-40/25-30; T2-111/5-25.

[27] T2-49/8.

[28] T2-49/9-20.

[29] Exhibit 9; T1-45 to T1-46.

[30] Exhibit 11.

[31] T2-92.

[32] Exhibit 12.

[33] T2-93/23-26.

[34] Exhibit 9; T2-99.

[35] Exhibit 13.

[36] T2-106.

[37] T2-106.

[38] T2-106 to T2-112.

[39] T2-105; T2-106.

[40] T2-64/14; T2-83; T2-84/4-10.

[41] T2-79/5-45; T2-83/40-46; T2-58/1-14.

[42] Exhibit 10.

[43] T2-108.

[44] Compare Geary v REJV Services [2011] QSC 419 at para 52.

[45] T1-77/45 to 46 to Mr Smith “Do you want to hear yourself talking?” “Let me finish.”

[46] T2-52/34; T2-53/30; T2-67/10 to Your Honour, “Can I just answer a question without you or him breaking me up?” ; T2-49/20 in cross-examination: “What are you, a monkey?”; T2-59 giving tax advice; T3-53/1 “I’m not telling you about him.”

[47] See discussion under heading “Head Injury” and supplementary reports of Dr Mathew (Exhibit 20) and Ms Debbie Anderson (Exhibit 21).

[48] Chappel v Hart (1998) 195 CLR 232, 156 ALR 517; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6.

[49] Medlin v State Government Insurance Commission (1995) 182 CLR 1.

[50] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 174-5.

[51] T3-30/10-15.

[52] T3-30/15-36.

[53] Exhibit 9 – Report of Dr Wallace dated 11 March 2012.

[54] Exhibit 9 – Chiropractic self-assessment.

[55] Exhibit 9 – Chiropractic notes.

[56] Exhibit 9 – Report of Dr Kossman dated 8 May 2015 at p 5.

[57] Exhibit 9 – Report of Dr Scavlos.

[58] T2-14/41-T2-15/40.

[59] T2-17 ff.

[60] Statement of Claim – paras 6(a) & 7(a).

[61] See for example T2-12; T2-22; T2-32.

[62] Exhibit 9.

[63] Exhibit 9.

[64] Exhibit 9.

[65] Exhibit 9 – Report of Dr Todman dated 28 May 2012.

[66] T3-121/1.

[67] T4-57/2-5; 24-27.

[68] Exhibit 9.

[69] Exhibit 20 at p 2.

[70] Exhibit 20 at p 4.

[71] Exhibit 20 at p 4.

[72] Exhibit 21 – Report dated 3 March 2016.

[73] Exhibit 9.

[74] Exhibit 9 at p 10.

[75] At p 10.

[76] Exhibit 9 – Report of Dr Mathew dated 26 February 2016.

[77] Exhibit 9.

[78] Exhibit 9 at p 10.

[79] At p 11.

[80] At p 1.

[81] T1-49/24; T3-45 to T3-48.

[82] Exhibit 4.

[83] T1-47; T2-7/6 to T2-8.

[84] T2-7/21.

[85] T2-7/24-25.

[86] T2-7/28-31.

[87] T2-7/38.

[88] T2-8/21-22; T2-8/39-41.

[89] T2-17.

[90] T2-19.

[91] T2-19.

[92] T2-20/41-42.

[93] T2-32.

[94] T3-82/16-20.

[95] T3-83/19-20.

[96] T3-84/8; T3-93/43-47.

[97] T3-84/39-40.

[98] T3-84/40-41.

[99] T3-93/36-37.

[100] Exhibit 10 – AP Eagers File.

[101] T3-90.

[102] T1-75/39.

[103] Exhibit 12.

[104] Exhibit 11.

[105] T2-56/35-42.

[106] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

[107] At p 640.

[108] (1990) 169 CLR 638.

[109] Sunley and Co. v Cunard [1940] 1 KB 740, 747; Woodham v Rasmussen (1953) St.R.Qd. 202, 215; Holmes v Jones (1907) 4 CLR 1692, 1703, 1717; Ted Brown Quarries v General Quarries (1977) 16 ALR 23, 37.

[110] Cf. Minchin v Public Curator (1965) ALR 91, 93; Ashcroft v Curtin [1971] 3 All E.R. 1208; Aerial Advertising Co. v Batchelors Peas [1938] 2 All E.R. 788, 796.

[111] Malec (above); Chaplin v Hicks [1911] 2 K.B. 786, 795; Wheeler v Riverside Coal Transport [1964] Qd.R. 113, 124; Biggen and Co. v Permanite Ltd [1951] 1 K.B. 422, 438; Dessent v The Commonwealth (1977) 13 ALR 437, 447.

[112] Exhibit 9 at p 4.

[113] At p 12.

[114] T2-8/24-34.

[115] T2-9/40-45.

[116] T3-57/15-25; T2-27/29.

[117] T3-84/8 and 39-40 and T3-93/43-47

[118] T3-93/39-47.

[119] Having regard to the Reserve Bank of Australia “Capital Market Yields – Government Bonds – Daily” rate at the beginning of the January 2016 quarter being 2.82%.

[120] For example: Reports of Ms Anderson dated 14 February 2012; Dr Cameron dated 19 June 2012; Dr Dickinson dated 11 July 2012; and Dr Todman dated 5 March 2012.

[121] T1-86/5-11.

[122] Exhibit 9.

[123] T2-2/13-15; T2-2/35-45; T2-26/1-20; T2-27/25-35.

[124] T3-84/15-43; T3-93/40-45.

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Editorial Notes

  • Published Case Name:

    Mehrang Mashaghati v Kate Ellen Anderson and Allianz Australia Insurance Ltd

  • Shortened Case Name:

    Mashaghati v Anderson

  • MNC:

    [2016] QDC 245

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    29 Sep 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2016] QDC 24529 Sep 2016Judgment for the plaintiff against the defendants in the amount of $164,077.23: Morzone QC DCJ.
Appeal Determined (QCA)[2017] QCA 127 [2018] 1 Qd R 42909 Jun 2017Appeal allowed; orders of District Court made 29 September 2016 set aside; cross-appeal dismissed; retrial ordered: Sofronoff P and McMurdo JA and Applegarth J.
Appeal Determined (QCA)[2018] QCA 29226 Oct 2018Application for an indemnity certificate refused: Sofronoff P and McMurdo JA and Applegarth J.

Appeal Status

Appeal Determined (QCA)
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