District Court New South Wales Medium Neutral Citation: Ghassani v Napier [2017] NSWDC 130 Hearing dates: 6 and 7 April 2017 Date of orders: 10 April 2017 Decision date: 10 April 2017 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $10,120. (2) Liberty to either party to apply to my associate in respect of an order for costs. Catchwords: DAMAGES – assessment – motor vehicle accident – whiplash – prior motor vehicle accidents - pre-existing injuries – back – knees – neck – lost earning capacity – domestic assistance – medical expenses Legislation Cited: Motor Accidents Compensation Act 1999, s 83 Category: Principal judgment Parties: Rabii Ghassani (plaintiff) Craig Napier (defendant) Representation: Counsel: Mr J Gumbert (plaintiff) Mr D Hanna (defendant) Solicitors: United Legal (plaintiff) Morag & Agnew (defendant) File Number(s): 2015/262954 Publication restriction: None Judgment A) BACKGROUND 1. Rabii Ghassani suffered a whiplash injury when the defendant's car collided with the rear of his car, when Mr Ghassani was driving on 17 July 2012. He sues for damages. Liability is admitted. B) ISSUES 1. The assessment of Mr Ghassani's damages involves consideration of the extent of his lost earning capacity, his need for domestic assistance, and the amount of past and future medical expenses arising from the motor vehicle accident. No claim is made for non‑economic loss, as the 10% whole person impairment threshold was not satisfied. Thus, no matter what pain and suffering to Mr Ghassani has resulted from the accident, the law does not allow me to make an award in his favour under that head of damage. 2. Determining the extent of loss under these heads of damage identified, lost earning capacity, domestic assistance and medical expenses, involved two matters, the pre‑existing condition of Mr Ghassani at the time of the 2012 accident, including his condition on account of prior motor vehicle accidents, and the extent of Mr Ghassani's current disabilities. C) THE PRE‑EXISTING CONDITION a) The 2005 motor vehicle accident 1. In April 2005, Mr Ghassani was hit by a car while having coffee with friends. He was taken to Bankstown Hospital and suffered minor injuries, but these quickly resolved and no claim was made. A Radiology report by Dr G R Geier on 3 June 2006, recorded a complaint of neck pain with, "Mild disc space narrowing…at the C4/5 level…Mild degenerative changes…particularly the C5/6 level." b) The 2006 motor vehicle accident 1. In November 2006, Mr Ghassani was thrown from his motorbike as the result of a collision, landing on his knees and twisting his lower back. He was taken to Westmead Hospital. Thereafter, he wore a knee brace and was unable to work for two months following the accident. He made a motor accidents claim. 2. Mr Ghassani was referred in about April 2008 by his treating doctor to Bruce Watts, an acupuncturist, for, "management of [Mr Ghassani's] cervicothoracic and lumbosacral spinal pain", which had continued since his motor vehicle accident of 2006. Mr Watts, in the report in 2008, stated that lying on the treatment table apparently aggravated Mr Ghassani's cervical "regions" and his spinal pain remained "unstable", even though treatment in June and July 2008 apparently produced some improvement. Thereafter, Mr Watts spoke only of lumbar pain, including, "with radiculopathy", continuing through 2011. 3. Dr Robert Drummond, orthopaedic surgeon, reported in April 2010 that Mr Ghassani was seeing a chiropractor three times a week for back therapy. Early in 2010, more than three years after the accident, he had a recurrence of the back pain in the lumbar region, and referred to pain in the left leg, with symptoms aggravated by standing. He had difficulty sleeping because of the back pain. 4. Later in August 2010, Mr Ghassani was referred by his solicitor to Dr Alan Searle, who reported on his condition. Dr Searle recorded that Mr Ghassani was advised to attend the pain management unit, and that Mr Ghassani had taken Endone weekly, Endep at night to help him sleep, and that he applies anti‑inflammatory gel on his back, knees and hips. Mr Ghassani found Panadeine Forte and Tramal did not help, but he was continuing with Nurofen Plus two or three times a day, especially when working. Dr Searle separately recorded that he had taken, "a year" and, "six weeks" off work because of his knees. He had given up rugby union, rugby league, soccer and athletics. His past riding of trail bikes was, by August 2010, "very restricted". 5. A CT scan in March 2010 showed prominent disc bulge at L4/5 and mild degenerative disease at L5/S1. Dr Searle concluded that Mr Ghassani was unfit for work that required prolonged sitting or standing, walking up stairs and slopes, kneeling, squatting, carrying weight or twisting, that "he is not really fit for the work of an apprentice carpenter," and that the 2006 motor vehicle accident had "impaired his social, domestic and recreational activities, and his employment prospects". 6. In 2012, Dr Searle reported that Mr Ghassani's back symptoms were a little worse, that he had had anterior cruciate ligament repairs on both knees in December 2011, and that if Mr Ghassani pursues a career as a carpenter and in the building industry, "he will be disappointed by his physical inability to perform the normal functions of the full duty of a building carpenter," and that, "He would be much better advised to undergo retraining for a sedentary occupation". Dr Searle expected his "knee symptoms and disability to gradually increase with the passage of time". 7. In relation to both knees and the lumbar spine, Mr Ghassani gave evidence that he averaged missing one day a week of work in the period up to 2012. 8. Dr Bruce Trevitt also examined Mr Ghassani in December 2012 in respect of his disabilities from the 2006 accident, which I deal with below. D) THE SUBJECT MOTOR VEHICLE ACCIDENT IN 2012 1. On 17 July 2012, while driving to work, Mr Ghassani's car was hit from behind. He went to work that day but left early and saw a doctor the next day, complaining of knee, lower back and neck problems. He returned to work after a week. The CT scan of his cervical spine was performed on 30 July 2012, which was normal, showing "No fracture or evidence of trauma seen". A MRI scan of his cervical spine in November 2013 also showed a normal cervical spine and "No cause for chronic pain could be identified". 2. In 2012, Dr Bruce Trevitt, orthopaedic surgeon, examined Mr Ghassani on behalf of the insurer of the driver in the 2006 accident. Dr Trevitt referred to the recent accident in 2012 where Mr Ghassani: "noted pain in the neck and shoulder girdles and some increase in the low back pain. He has been having physiotherapy treatment for this subsequent motor vehicle accident and notes some gradual improvement in all symptoms." 1. Dr Trevitt also reported that Mr Ghassani had changed jobs and was now self‑employed, doing up to three days a week physical work. Although, the doctor appears to attribute this to Mr Ghassani's condition prior to the recent motor vehicle accident, Dr Trevitt concluded that Mr Ghassani was fit for "light duty work, avoiding repetitive bending, heavy lifting, prolonged standing, squatting, etc," a conclusion similar to Dr Searle, and stated that the, "disabilities described above are the direct result of the [2006] motor vehicle accident. The subsequent injury when he was driving a motor car four months ago [2012] does not appear to have increased his disability." 2. The proceedings concerning the 2006 motor vehicle accident were resolved in about 2013, resulting in an award in favour of Mr Ghassani. 3. Dr Phillipa Harvey‑Sutton reviewed Mr Ghassani in October 2014 for the defendant in these proceedings, reporting that, "There was reported tenderness over the lower cervical spine… [but] no muscle spasm and no muscle guarding". She concluded that the "prognosis of his condition is good and any injuries sustained in this accident will settle in the fullness of time". She repeated this conclusion and also stated that, "He may take medication because of the nature of the injuries sustained in this accident of 17 July 2012 for another six months." These conclusions are of limited assistance given that already more than two years had passed since the accident. Dr Harvey‑Sutton also concluded that, "[B]ased on the nature of the injuries sustained in this accident of 17 July 2012, he is now fit to perform his pre-injury duties as a carpenter." 4. Mr Ghassani had a further knee operation in 2015, an "arthroscopic debridement of the medial meniscus" in his right knee. Another medico‑legal expert obtained by the defendant, Dr Ron Muratore, concluded that Mr Ghassani had long since recovered from any soft tissue injuries suffered in the 2012 accident in his report of February 2016. 5. Dr WGD Patrick, a trauma surgeon, reported in August 2016 and concluded that Mr Ghassani's knees had settled to their pre‑2012 accident condition, but that the ligamentous cervical spine injury - an aggravation of the lumbar spinal condition - had "tipped the balance" so as to make it unlikely that Mr Ghassani could fulfil the two‑year full‑time building work needed to obtain a builder's licence and become a project manager, a career plan Mr Ghassani testified before me to have had prior to the 2012 accident. However, Dr Patrick's conclusions were based, in part, upon an incorrect assumption that Mr Ghassani was "back at full‑time work" prior to the 2012 accident. Mr Ghassani did not give evidence to this effect and it is not supported by the earlier reports from Dr Searle and Dr Trevitt. 6. This apparent misunderstanding by Dr Patrick of the condition of Mr Ghassani at the time of the 2012 accident must impact on the value of his conclusions in relation to the effect of that accident. 7. Dr G David Champion also reported on Mr Ghassani. Apart from the "whiplash-associated disorder of the cervical spine" that he found, which was accepted by Dr Harvey‑Sutton, Dr Muratore and Dr Patrick, Dr Champion also found a suggestion of "radicular symptoms" at the C5/6 level and, in common with Dr Patrick, found aggravation of the lumbar spine and the knee disorder. 8. Dr Champion, in his report, refers to Mr Ghassani taking, "over the counter ibuprofen, paracetamol, and topic anti‑inflammatory agents such as Voltaren gel," medications which were in use (apart from, perhaps, the paracetamol) by Mr Ghassani before the 2012 accident. Also, Dr Champion accepts that his findings of, "ongoing symptoms and signs of C6 radiculopathy" are "abnormal findings," which may "reflect [his] research based interest in somatosensory testing." He accepts that it will be difficult for Mr Ghassani to continue working in his carpentry role in the long‑term, and that a vocational change would likely be required. 9. Mr Ghassani was the only person to give oral evidence in the proceedings. He gave evidence of his cervical pain resulting from the accident and that he would get headaches, which he regarded as his biggest problem from the 2012 accident. He also complained of difficulty sleeping and some pins and needles. 10. Mr Ghassani was a satisfactory witness. He was straightforward with his answers and there was nothing in his demeanour which would cause me to doubt his belief in the evidence he was giving. However, I think his recollection of the pain and symptoms that he suffered prior to the 2012 accident may be affected by the conclusion of the proceedings concerning the 2006 accident. He has a more optimistic view now of his condition in 2012 than is indicated by the contemporaneous reports. E) Conclusion 1. Mr Ghassani has suffered a whiplash injury to the cervical spine. I do not accept the presence of any bony injury or radiculopathy, given the absence of clinical signs in the reports of Dr Harvey‑Sutton, Dr Muratore and, perhaps most significantly, Dr Patrick, who was retained by the plaintiff, which deny it. Any aggravation of knee injuries as a result of the 2012 accident was not pressed by Mr Ghassani in these proceedings as a basis for a claim for damages; and any aggravation of the lumbar region was neither explained by the physiology of the accident, nor, more importantly, indicated to be a difference in his condition in the reports before and after the 2012 accident. 2. I spoke earlier of Mr Ghassani's apparently optimistic view of his pre‑accident condition compared to the more contemporaneous reports. His recollection of the amount and type of medication he took after the 2006 accident, and the time he had off before the 2012 accident, do not accord with those records. The absence of records as to an increase in the medications he was taking after the 2012 accident compared to before, and the absence of records as to the increase of time off work after the 2012 accident compared to before, leave me unpersuaded, in the face of the contemporaneous reports, that his general level of pain and health became measurably worse than it was in the period before 2012. 3. Mr Ghassani still goes to the gym three or four times a week, and does boxing. He finds these activities helpful in strengthening his body so as to lessen the pain. I accept his evidence of this, but I am of the view that, as both his and the defendant's medical reports in the proceedings relative to the 2006 accident disclose, he was unfit for full‑time carpentry work prior to the 2012 accident, and that remains his condition now. 4. Further, Mr Ghassani gave evidence that he worked full‑time five or six days a week for some months in the aftermath of a natural disaster in 2015 in Queensland, doing make‑safe work. His desire to help fulfil a need there is praiseworthy, and his description that he was "wiped out" by working full‑time in Queensland for some months is one I accept. But that consequence of full‑time work was to be expected both before and after the 2012 accident. Even before the 2012 accident, as he accepted and is indicated in the reports, he was taking a day each week off from work. F) LOST EARNING CAPACITY 1. Mr Ghassani claims past economic loss for one week of five days as an apprentice carpenter at $120 a day for the week off work he took after the accident. He also claims a further day per week for 12 weeks until the end of October 2012; a total amount of a little over $2,000. Mr Ghassani gave evidence that this period of work was covered by his sick leave and annual leave. There was no evidence which indicated how much of each type of leave was used, and as there was no evidence that sick leave would be paid out as cash when he left his employment in October 2012, the using up of his sick leave does not result in him suffering any economic loss. I would give Mr Ghassani full credit for any annual leave taken to cover periods of sickness. My finding concerning sick leave and the absence of records to indicate that Mr Ghassani did take an additional one day a week off for that 12 week period - that is, a day additional to the one day a week he was already taking off before the 2012 motor vehicle accident - means I am not satisfied that the actual monetary loss to him was any greater than the $1,000 allowed by Mr Napier for that period. I will allow an additional $120 for superannuation at 12% on that amount of $1,000 lost wages. 2. Mr Ghassani makes no claim for the 14 months from about the end of October 2012 to January 2014. This was a period when Mr Ghassani travelled overseas for four months and, having completed his carpentry apprenticeship, worked at times for himself charging $50 per hour. Why no claim could be maintained for the period he was working, perhaps because he was able to do all the work available to him, was not fully explained. The absence of any claim does indicate that the change in employment was not a product of the 2012 motor vehicle accident, and that when Mr Ghassani was working and not travelling, his earnings were not diminished because of injuries from that accident. 3. Mr Ghassani does, however, claim for the period from January 2014 to date and for the future, at one day per week until age 67 and an additional one day per week from age 55 to 67 on the basis that Mr Ghassani would likely retire early (from working three days per week) and one‑third of that loss from early retirement is due to injuries from the 2012 accident. I do not accept that this would be the appropriate algorithm to calculate the loss asserted by Mr Ghassani because it effectively attributes two days per week, or one half of Mr Ghassani's loss for when aged 55 to 67 to the 2012 motor vehicle accident rather than the one‑third of the loss which Mr Ghassani attributes to the 2012 accident. It would thus be necessary to correct this calculation were I persuaded that Mr Ghassani has lost one day per week. 4. Mr Ghassani's evidence indicated a loss of one day per week, but this was given as an average. He provided no documents to substantiate how this average was calculated and no documents showing that he regularly worked three days per week. On the contrary, he accepted that for some two to three months in 2015, he worked five to six days a week. Thirteen weeks at six days a week, or three extra days, is 39 extra days, equivalent to almost one lost day per week for a year. This amount is likely to impact significantly on any average of days worked and underlines the uncertainty of the amount of days Mr Ghassani worked. His evidence of the average number of days he worked did not reveal whether he took into account his work in Queensland. 5. No explanation was given as to why some contemporaneous documentary record was not available as to the days which Mr Ghassani did or did not work. As he was a partner in a business, one might have expected that there would be some records in that business as to the days he actually worked in the year. In the absence of records, I was not inclined to accept as accurate Mr Ghassani's evidence as to the average amount of days he worked after the 2012 accident, or indeed the days he worked before then. 6. Mr Ghassani's ability to work as a carpenter is limited, but in my view, that limitation largely arises because of his pre‑existing back and knee problems, as indicated in the medical reports to which I have referred. I am not persuaded that the whiplash injury in 2012 had any longstanding impact after Mr Ghassani returned to work from overseas in about January 2014, the starting date of his claim for lost earning capacity (apart from the few months after the accident). 7. In respect of past loss to date, after that initial period to October 2012, and noting the absence of a claim until 2014, and including loss of earning capacity for the future period thereafter, including superannuation, in my view, Mr Ghassani is entitled only to a modest buffer to take account of any lost employment rising from the potential for an increase in the amount of headaches Mr Ghassani suffers and will suffer that cannot be ameliorated by medication sufficiently to allow him to work. I would allow the amount of $5,000. G) DOMESTIC CARE 1. Mr Ghassani claims no amount for past domestic care because it has not been particularized. But he asserts that since the 2012 accident, or at least in more recent times, he has required two hours per week of domestic care, and he claims this amount going forward into the future. I accept that Mr Ghassani has paid $550 for domestic help in the 14 weeks from 1 January 2017 until the end of the first week in April, as evidenced by a banking record, which is an amount a little less than the $50 a week claimed. I also accept that there is a likelihood that domestic assistance will be utilised in the future, principally because it has been utilized in the past. However, I am not satisfied that there is a reasonable need for this domestic assistance that has been caused by the 2012 motor vehicle accident. 2. Mr Ghassani gave evidence that he goes to the gym four days a week and that he accords a greater priority to going to the gym than to domestic cleaning. That is, perhaps, unsurprising. There was no evidence of Mr Ghassani's need for domestic assistance from someone who saw Mr Ghassani in his home. To the extent that there is a need for assistance with heavy domestic maintenance work, that need was caused by Mr Ghassani's back and knee complaints resulting from the 2006 accident. 3. Dr Harvey‑Sutton indicated in her report of 30 October 2014, that, "two hours of domestic assistance per week for the first six weeks following the accident may be considered reasonable and necessary in the circumstances." As I indicated, no claim was made for that period. 4. Dr Muratore opined that no assistance with personal care, and no domestic assistance, was required. 5. Dr Patrick reported that there was a need for "1 hour such assistance per week ongoing into the future, for help with the heavier tasks as required". But Dr Patrick, as I mentioned earlier, was under the belief that Mr Ghassani was working full‑time prior to the 2012 accident. Dr Patrick makes no allowance for Mr Ghassani's pre‑existing knee and back problems that required assistance with heavy domestic tasks prior to the 2012 accident. 6. Dr Champion reported: "I would advise maintenance of his 2 hours a fortnight domestic assistance which he has recently and currently been paying for himself. That could be reviewed after 12 months but might well be needed for another 2 or 3 years." Again, Dr Champion does not attempt to determine how much of that need is due to the injuries from the 2012 accident, and those which pre‑existed; nor does he identify any particular tasks which Mr Ghassani is unable to do. 1. In my view, one must be cautious in determining a need for domestic assistance where there is no proved inability to do the tasks, and where, in this case, Mr Ghassani is able to go to the gym four times a week. If he was working, as he claimed, on average three days a week, that would leave four non-work days a week where he might be expected to be able to find an hour or two to do domestic tasks, if he was minded to do them. Dr Peter Conrad's evidence is that "[a]s he is living by himself and struggles with his housework, he might need about six hours per week of Home Care assistance." The uncertainty about the hours, the necessity and the absence of any suggestion that any need is related to the 2012 accident, causes me to reject this evidence. 2. Dr Leon Le Leu, an occupational physician, reported of Mr Ghassani that "[h]is de facto does most of the housework and this appears to be due to his limitations in lifting, bending, pushing and pulling, etc". Mr Ghassani was not so ready to attribute most of the housework to being done by his de facto, who also worked full‑time. In any event, Dr Le Leu then continued: "If she were not there, I suggest he would need domestic assistance at the rate of 90 minutes a week. Because I have never visited his residence, the precise requirement would be best determined by an on‑site inspection by an occupational therapist." [Underlining in original]. Dr Le Leu thought that assistance "should be needed for at least another two years and perhaps up to five years". Dr Le Leu does not appear to identify that component of need attributable to the 2012 accident rather than to the pre‑existing knee and back complaints. The occupational therapist's on‑site inspection, so far as the evidence discloses, never occurred. 1. In my view, the extent of any need for domestic assistance is limited to the heavy maintenance tasks that Mr Ghassani may not now be able to complete because of his back and knee problems. I am not persuaded that Mr Ghassani's headaches, which he attributed to be the primary problem resulting from his 2012 motor vehicle accident, necessitated him receiving domestic assistance. Any heavier domestic tasks, such as those involving heavy lifting, or work on a ladder, were tasks which the reports in respect to the 2006 injuries indicated were a problem for him then; and so cannot be regarded as attributable to the soft tissue injury in 2012. I am not persuaded that any aggravation of his lumbar disability, arising from the 2012 accident, persisted to create a disability from 2013 onwards different from the disability he had prior to the 2012 accident. 2. Accordingly, I do not allow any amount for domestic assistance. H) OUT‑OF‑POCKET EXPENSES 1. The defendant allowed $2,000 for future out‑of‑pocket expenses. Although Mr Ghassani gave oral evidence of medication additional to his use pre‑2012 accident, there was no documentary evidence to support it. As I noted earlier, he claimed to be taking anti‑inflammatory tablets and applying anti‑inflammatory gel to his back, legs, and hips, prior to the 2012 accident. Accordingly, I am not persuaded of any significant additional amount of pain‑relieving medication. I accept a buffer of $2,000 for the future, as allowed by the defendant, and I will allow that same amount in respect of past pain medication costs attributable to the 2012 accident. 2. The defendant insurer paid $5,662.78 in respect of treatment expenses for Mr Ghassani, but payment by the defendant is a defence to a claim for that amount, under s 83 of the Motor Accidents Compensation Act 1999, and so should not be included in assessment of loss. I) CONCLUSION 1. Accordingly, damages are awarded as follows: $1,000 for lost earnings up to October 2012; $5,000 buffer for lost earnings capacity from January 2014 and for the future; $2,000 for past out‑of‑pocket expenses; $2,000 for future out‑of‑pocket expenses; $120 for lost superannuation, a total of $10,120. J) COSTS 1. In accordance with the requests of the parties, I make no order about costs. K) ORDERS 1. The orders of the Court are: 1. Judgment for the plaintiff in the sum of $10,120. 2. Liberty to either party to apply to my associate in respect of an order for costs. ********** 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: 30 May 2017