District Court New South Wales Medium Neutral Citation: Antonios Abou Antoun v Sleiman Chidiac [2017] NSWDC 208 Hearing dates: 14 – 19 June 2017 Decision date: 11 August 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict for the defendant. For Orders see [149] Catchwords: Tort; onus of proof; whether plaintiff in breach of s 117 of MACA; adverse findings of credit Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Boral Bricks Pty Limited v Cosmidis [2013] NSWCA 443 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Lewis (2006) 65 NSWLR 587 Browne v Dunn (1893) 6 R 67 Chaplin v Hicks (1911) 2KB 786 Fox v Percy (2003) 214 CLR 118 Giorginis v Kastrati (1988) 48 SASR 371 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Matar v Jones [2011] NSWCA 304 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 Sampco Pty Limited v Wurth [2015] NSWCA 117 Springfield v Duncombe [2017] NSWCA 137 Category: Principal judgment Parties: Antonios Abou Antoun (Plaintiff) Sleiman Chidiac (Defendant) Representation: Counsel: D O'Sullivan with J Doyon (Plaintiff) R Stitt QC with O J Dinkha (Defendant) Solicitors: Sanford Legal Gillis Delaney Lawyers File Number(s): 16/56561 Publication restriction: Nil INDEX HEADING PARAGRAPH NUMBER The plaintiff's claim 1 The issues to be determined 3 Facts not in dispute 4 The plaintiff's evidence 5 Other evidence relied on by the plaintiff 54 Evidence relied on by the defendant as to liability 59 Evidence of Constable Adam Jennings Evidence of the defendant 65 Defendant's submissions as to liability 85 The plaintiff's submission as to liability 104 Defendant's submissions on liability in reply 116 Findings of fact 125 Determination of liability 126 Damages 131 Assessment of damages 143 Conclusion and Orders 149 Judgment The plaintiff's claim 1. The plaintiff claims damages for personal injuries suffered by him on 19 January 2014, when an incident occurred in which he alleges the defendant drove a motor vehicle over the plaintiff's right foot, causing him to fall to the ground. The plaintiff claims injuries occurred to his back, neck, right leg and right foot, and that his injuries were occasioned by the defendant's negligence. 2. In his defence filed on 3 June 2016, the defendant denies the plaintiff was involved in a motor accident as defined in the Motor Accidents Compensation Act 1999 ("MACA"). The defendant denies negligence, and that the plaintiff was injured. Further, at [4] of the defence, the defendant pleads: "4 In response to the whole of the Statement of Claim, the defendant says that the plaintiff's claim has not been made in good faith pursuant to section 117 of the Motor Accidents Compensation Act 1999 and, further, that the plaintiff has made false or misleading statements within the meaning of that section. Particulars (a) each and every statement in which the plaintiff says that he came into contact with the defendant's vehicle; (b) each and every statement in which the plaintiff says that he fell to the road as a result of the movement of the defendant's vehicle' (c) each and every statement in which the plaintiff says that the fall, the subject of this claim, was caused by the fault of the defendant; (d) each and every statement in which the plaintiff says that he was injured as a consequence of some act or omission on the part of the defendant. 5 In consequence of the plaintiff's breach of section 117, the defendant seeks the remedy provided for under section 118(2) and claims: (a) relief of all liability to the plaintiff; (b) recovery of: (i) any financial benefit paid by the defendant to the plaintiff; and (ii) all costs incurred in connection with this claim. 6 The defendant asserts that the incident and any consequent injuries were caused entirely by the intentional, reckless or negligent conduct of the plaintiff." The issues to be determined 1. The issues to be determined are: 1. Was the plaintiff injured in an incident which occurred on 19 January 2014? 2. If so, was the incident a motor accident as defined by the MACA? 3. If the plaintiff was involved in a motor vehicle accident as defined by the MACA, whether the motor accident was caused by the negligence of the defendant? 4. If so, what are the plaintiff's damages? Facts not in dispute 1. Determination of the issues outlined above requires a close analysis of the evidence given by the plaintiff and the defendant as to the circumstances of the incident in which the plaintiff alleges that he suffered injuries which occurred at A'Beckett Street, Granville, at approximately 6pm on 19 January 2014. However, the following facts are not in dispute and give some context to those events: 1. The plaintiff came to Australia from Lebanon and worked in restaurants and demolition following his arrival in Australia. He was introduced to the defendant and did work for him from time to time, being paid $150 per day in cash. On 19 January 2014, the plaintiff was working for the defendant at a demolition site in Sefton. 2. At the end of the day's work, the plaintiff followed the defendant in his vehicle to 29 Barkham Street, Merrylands, where they had a discussion about the price of a quote for a job to be done there. That job involved demolishing asbestos. The plaintiff offered to do that work for $1,000.00, and the defendant offered $900.00. The defendant then drove from Merrylands to A'Beckett Street, Granville, to inspect an excavator he had on site there. 3. The plaintiff followed the defendant to A'Beckett Street. When he arrived, he got out of his truck. The defendant inspected the vacant block where his excavator was kept, and then walked over to his truck, entered it and closed the door of the truck. Both parties agreed that the driver's side door was closed. 4. A phone call was made by the plaintiff to 000 on that evening. The content of that phone call was incomprehensible as the language spoken was Arabic. The plaintiff's evidence 1. The plaintiff gave evidence that he was born on 15 November 1988 in Lebanon and moved to Australia in September 2011. He had a qualification in hotel management and had volunteered in the Lebanese Army for 10 months. 2. Upon arrival in Australia the plaintiff had limited English. He undertook a marketing management course at Strathfield College for approximately one year, but did not complete the course. He then found some work in hospitality as a waiter, and in demolition and construction as a general labourer. One of the companies he worked for as a casual labourer was Dynamic Demolition and Excavation, owned by the defendant. He worked for that business from November 2011. 3. The plaintiff obtained a certificate in asbestos removal and as a traffic controller. As at the date of the accident on 19 January 2014, he had no physical restrictions. He was able to do all of the worked required in demolition work 4. From the middle of 2013 to 19 January 2014, the plaintiff continued to work in hospitality and demolition work. He was on a student visa and was limited to 20 hours work per week. 5. The plaintiff gave evidence that on 19 January 2014 he carried out work for Dynamic Demolition. At the end of the day the defendant paid him some money, but deducted $100. The defendant then asked him to follow him to another worksite in Merrylands, to quote on another job. The plaintiff told the defendant that he wanted $1000 for that job, however, the defendant offered him $900.00. The defendant said to the plaintiff: "Alright, follow me to my house. I'll give you the $100 at my house." 1. The plaintiff then proceeded to drive his car, following the defendant along Parramatta Road. At Granville, the defendant turned left, and stopped his vehicle on the corner of A'Beckett and Parker Streets. The plaintiff gave evidence that he saw an excavator on a worksite there. He observed the defendant to make a three-point turn on the driveway of that vacant property, and park his vehicle in the middle of the street. He drew a sketch plan of the area and where his vehicle and the defendant's vehicle were parked (Ex B). 2. The plaintiff gave evidence that he observed the defendant to alight from his vehicle and walk onto the property where the excavator was. He was there for 5-10 minutes, and when he returned towards his vehicle, he swore at the plaintiff. 3. The plaintiff then gave the following evidence: "Q. What did Mr Chidiac do? A. Mr Chidiac went into his truck, and I was walking behind him towards his truck, I was telling him - I was telling him, listen, I have no parents, I have no family here, and we are about from the same area in Lebanon, and we are the same religion, if I knocked your door and asked you for a hundred bucks to buy food and pay rent, would you give me or not? Q. Okay, when you said this Mr Antoun, where were you standing? A. I was walking with him towards his truck and then I told him, you've got children and do you agree if such a thing happened to your - to your children‑‑ Q. At what point through this conversation, Mr Antoun, did Mr Chidiac enter his vehicle? A. Pardon? Q. At what point in time through this conversation did Mr Chidiac‑‑ A. He didn't stop. He was walking straight. Q. So you've had that conversation. Then what happened? A. Then Mr Chidiac got into his truck and I was still talking to him, saying, "Get off my dick and move forward." … Q. Where were you standing when you were talking to Mr Chidiac when he was in the vehicle? A. I was walking next to him. When he got into the vehicle, I was standing next to the driver door." 1. The plaintiff tendered a photo of the defendant's vehicle taken by him, after the incident occurred (Ex C). He marked on Ex C where he was standing as he spoke to the defendant, a point which he described as "about the line of the blinker". 2. The plaintiff demonstrated that he was standing at an acute angle to the defendant's vehicle, with his right side slightly forward of his left side. He then gave this evidence: "Q. Can you just explain what happened next, Mr Antoun? A. Yeah, I was talking to him, and I told him, "You have kids, how" - "how would you feel if such thing happened to your kids, and I have no family here," and - and he drove - he drove forward and knocked me - knocked me down. His wheel - his wheel ran over my right foot and got knocked with the door, the driver door. Q. When you say he drove forward, to the best of your recollection, what do you mean by "he drove forward"? A. He moved his truck forward. … Q. Was anything said to you by Mr Chidiac immediately prior to the vehicle moving forward? A. No, he didn't give me any notice. Q. Now, you said the wheel of the tire ran over your front foot. A. Yes. Q. How much of the tire, to the best of your recollection, went over your front foot, do you recall? A. Just the top front. Q. When you say "the top front", if I ask this question - what were you wearing at the time in terms of footwear? A. As I said, we were at work. I was wearing steel cap. Q. So you're wearing steel-capped boots at the time. A. Yeah. … Q. The wheel went over your foot - over your boot? A. Yes. My right - my right foot. Q. Did any of the wheel go over the part of your boot which is not steel? A. No. Q. Then you say that you got hit by the door. A. Yes. Q. Can you explain to his Honour what you mean by that, to the best of your recollection - how that might have occurred? A. Of course..(not transcribable)..talking to me, his truck went over my foot, I got hit by the door and fell that way. … Q. Where did the door hit you? A. In the front of my body. Q. Now, what happened after you got hit by the door? A. I fell on - I fell on the ground. Q. Can you explain to his Honour, to the best that you can recall, how did you fall? Did you - for instance, did you fall backwards or‑‑ A. Backward. Q. Backwards? A. Yeah. Q. What part of your body connected with the road? A. The lower back. Q. Can you explain to his Honour, your lower back hit the ground first - did any other part of your body hit the ground at the same time? A. No - from falling backwards, my lower back..(not transcribable).." 1. The plaintiff then gave evidence that the defendant got out of his truck and came over to where he was lying on the road and said: "What happened? What happened? I'll give you whatever I want." He then said the defendant said: "I'll give you $500 instead of the $100. Just get up, just up. I have little kids, don't wreck my house." 1. The plaintiff gave evidence that he felt pain immediately in his right knee and lower back He rang 000 straight away. The defendant was standing next to him and said to him: "Don't call them don't' call them. Come with me, I take you to the medical centre, I give you whatever you want. Get up. Get up. Get into my truck." 1. The plaintiff gave evidence that there were two 000 calls. During the first, the defendant had dragged him 3-4 metres towards his car and the phone hung up. Triple 0 then called him back. 2. The plaintiff gave evidence that the distance the truck moved from where it was parked to where it stopped after the accident, was between three and five metres. Those points were marked as Points B and D on Ex B. He said he had a bruise on his right knee and his right leg as a result of the fall which he noticed when he was in the ambulance. 3. The plaintiff gave evidence that the police arrived within five minutes or so, and asked him, "Did he hit you purposely?". The plaintiff said, "I don't think so", or something similar. Two policemen had attended the scene and two or three weeks later he was interviewed by a Constable Jennings. He did not know if it was Constable Jennings who spoke to him at the scene. 4. The plaintiff gave evidence that he was lifted into the ambulance and given a morphine tablet. He was then taken to Westmead Hospital. At that time his lower back was really hurting him and he had pain in his right knee and neck. The plaintiff was in hospital for six days and was discharged on 24 January 2014. He was discharged on crutches with a brace around his chest and back. He was also prescribed Panadeine Forte and Naproxen. 5. The plaintiff gave evidence that upon discharge from hospital he could not climb stairs at his house, so he had to move house. He received assistance from a friend when he moved to share accommodation. He shared his friend's room, and his friend helped him with shopping, house maintenance and cleaning. He also gave evidence that his friend was "helping me showering, helping me with wearing my clothes, also helping me with driving me around from time to time". 6. That assistance lasted for "four to six months, mainly four to six months, but it could happen after – after that period, but now as – as much as". 7. The plaintiff's friend's name was Fawaz Fallah. He lived at Mr Fallah's home for 4 to 5 months. He said that he was in pain all of the time and felt frustrated. 8. The plaintiff gave evidence that before the accident he had plans to settle down in Australia, start his own business and find a good relationship for his future. He used to play basketball and swim, and had attended Miller TAFE to obtain a demolition supervision certificate. He also obtained a heavy vehicle driver's licence. 9. The plaintiff was asked about what work he performed after he left hospital. He gave the following evidence: "A. I can't remember. Could be after six months, could be but it's not, could be after one year. Like, even if it's after six months it wouldn't happen for more than one day in a month, one day in a month because I wanted always to get out of home. I wanted always to produce. Q. Okay. Now, can you recall when you first started working, what sort of work did you do? A. It was always light duty. Q. Okay, and when you say light duties, can you please explain to his Honour. What do you mean by that? A. Could be supervision. Q. Supervision. When you say, well, just stop there at supervision. In what industry this supervision? A. Demolition mainly. Q. Okay, and can you explain to his Honour what that supervision in the demolition industry would involve? What sort of tasks would you undertake performing that role? A. We would undertake the construction of building. Q. No, not the company but you. What would you do as a supervisor? A. Filling out papers. Q. Yes. A. Running the boys. Make sure it's safe, they are safe. Making tool box stop for them in the morning and..(not transcribable)..them in and out. Q. Okay, that's the supervision in the building industry. When you use the term light duties, what other jobs would you do? A. Driving truck. Q. Driving truck. Okay. What would be involved in driving of the truck? A. I got to park my truck there then load it and I take it to the tip. Q. Okay. A. Dump the load. Q. Something like that. Now, if we return to, and I'm indebted to my friend, if we return to the supervision roles, can you recall who you worked for? A. Yeah, I worked for Basic Demolition. Q. Basic Demolition? Okay. Now, if we move through to the truck driving‑‑ A. Yes. Q. ‑‑when you say that you were performing truck driving duties, who were you working for? A. For myself. Q. For yourself? Okay. Can you please explain to his Honour how you came about to be working for yourself? A. I beg your pardon? Q. You were working for yourself. What do you mean by working for yourself? A. I registered my own business and started doing-- Q. When did you register that business? A. Around September. Q. Of what year? A. 2015 or 16, I'm not sure. Q. Mr Antoun, you set up the business. What other steps did you take to get the business up and running? What else did you do? A. I bought a truck and-- Q. Yes. When you bought a truck, when did you buy that truck? A. November 2015. Q. Now can you recall when you set up the ABN? A. Yes, 2015. Q. 2015? Okay. First of all, Mr Antoun, what sort of truck is it? A. Is a 12-tonne tipper truck.? 1. The plaintiff gave evidence that in the six months leading up to the trial he had earnt income of between $200 and $300 per week. When asked what he could now not do, that he could do before the accident, he answered: "A: Driving for long drive, enjoying life, hobbies, working hard producing, and not able to do assigned relationship." He then added that he could not work as a waiter any more. 1. The plaintiff gave evidence that he continued to see his GP, Dr Hanna, and Dr Maniam. He was presently taking Panadeine Forte and Naproxen, together with other medications for his low back pain and right knee. He could not work for more than 15 hours per week because his back was always in pain 2. In answer to questions from the court, the plaintiff gave evidence that it was the front driver's side wheel that ran over his right foot. 3. In cross-examination, the plaintiff stated that when he came to Australia he had great ambition. That was ambition to make a good future and to be helpful for himself and the community. Part of that ambition was to make money by working. He did not refuse any job that his Visa allowed him to do. He was asked about restaurants he worked in and nominated a number of Lebanese restaurants where he worked on a casual basis. All of the hospitality jobs he had undertaken paid by way of cash. He also worked as a casual labourer for demolition companies including the defendant's company. 4. The plaintiff first met the defendant in October 2011. The defendant also came from North Lebanon. It was put to the plaintiff that he had never received a PAYG statement from any employer, but he said he did receive such a statement "a couple of times". The plaintiff also agreed that he commenced receiving a New Start allowance from the Department of Human Services. He agreed that he was required to inform the department if he was earning money. He gave further evidence that he had informed the department that he was earning money since 17 June 2013. 5. The plaintiff conceded that he did not file tax returns for the years he was working from 2011 until 2014. His reason for not doing so was that he did not know that he had to do so. He went on to say: "Overseas we don't pay tax. … I had no one to teach me the right way." 1. The plaintiff agreed he had produced tax returns prepared for 2014 by an accountant in Merrylands. 2. The plaintiff agreed that he had by early 2014 gained some skill in the removal of asbestos and he had protective clothing that allowed him to do asbestos removal, which he knew was dangerous. It was put to the plaintiff that, in carrying out work for the defendant and for another employer, he had always worn a "wide, white belt around his waist", which he denied. This allegation was subsequently withdrawn by learned Queen's Counsel for the defendant. 3. It was put to the plaintiff that he went to a bakery in Sefton for lunch on that day, which the plaintiff denied. It was then put to the plaintiff that whilst he and the defendant were eating pizzas for lunch, he said to the defendant, "I want to make big money in this country. How do I make big money?", which the plaintiff denied. It was then put to the plaintiff that the defendant said to him: "You have to work hard. I came to Australia with nothing, and I did two jobs, day and night." The plaintiff denied that conversation. 1. It was then put to the plaintiff that the plaintiff said to the defendant, "I want to buy a truck", and "I want to buy an excavator". The plaintiff said that was not true. He was then asked: "Q. And you asked him how could you get this money. A. That's not true. Q. And you then said, "What about compo?" A. That's not true. Totally wrong. Q. And he said, "Compo? You can't do it. It's bullshit." A. That's totally wrong. That's totally wrong. Q. You were both talking in Arabic. A. That's totally wrong. Q. You were both talking in Arabic. A. Such things didn't happen at all. Q. Well, what you said, I'm suggesting, is that you wanted to buy a truck and an excavator like Mr Chidiac. A. I beg your pardon? Q. You said to him, "I want to buy a truck and an excavator like you." A. That's not-- Q. With Mr Chidiac. A. That's wrong. Q. And he said to you, "That is bullshit, because it involves work cover and even the police would get involved." … Q. What Mr Chidiac said to you when you asked him about compo, he said, "That is bullshit. If you try to do this, you involve work cover and the police would get involved." He said that to you. A. That's totally wrong. I never spoke to him about compensation. I never knew about compensation. I knew about that through the social worker at the hospital, at Westmead Hospital after the injury." 1. The plaintiff agreed that he knew that the defendant had a job at Barkham Street Merrylands where he wanted to demolish a building, and he was asking the plaintiff to be involved in that job. That involved the removal of asbestos and the plaintiff agreed that he wanted $1,000.00 for that job. It was put to the plaintiff that the defendant offered him $800.00, however, the plaintiff said the offer was $900.00. It was put to the plaintiff that they argued over the quote, which he denied. It was further put that the defendant did not owe the plaintiff any money at all, which he also denied. 2. The plaintiff agreed that he followed the defendant to Granville and it was put to him that the position of the vehicle that he marked on Ex B was wrong, having been shown photograph Ex 1 and a google map Ex 2. The plaintiff agreed that the location that he had drawn his own car on Ex B was wrong, in that it was inconsistent with Ex 1. 3. The plaintiff gave evidence that before the defendant returned to his truck, the driver's door was open and he could see that the handbrake was engaged. After the defendant got back into his truck, the door was closed, but he could not remember whether the window of the driver's door was up or down. The plaintiff denied that they were arguing about the quote at that time. However, he had told the police officer that they were arguing about a quote and the plaintiff was asked which statement was true, and which was false. His answer was: "Whatever I said is whatever I believe is true." 1. It was put to the plaintiff that the defendant had said to him "I'm not going to argue any more. I want to go home", which the plaintiff denied. The defendant's case was put to the plaintiff as follows: "Q: He was sitting in the cabin and you threw yourself backwards, you threw backwards onto the ground? A: That's not true, I got hit. I didn't throw myself backwards." 1. It was put to the plaintiff that in fact he had worn a black leather belt, not a white belt, at work before this incident, which he denied. It was shaped wide at the back and was narrower at the front where it buckled, to which the plaintiff replied "That's 100% wrong". 2. The plaintiff was asked for what purpose he took the photograph when he was lying on the ground screaming in pain. He said he took the photograph for evidence. He was asked: "Q: What was the evidence that you needed the photograph for? A: Because Mr Chidiac has previous violence act so – and he had in his truck a piece of timber with nails on the head because he'd been in other problems, so I was worried and scared. … Q. For what purpose did you need evidence? A. I need evidence because I've been hit and Mr Chidiac had previous violent act and he'd been charged and one of his cousins is in gaol now because of violent issues and I took the photo because I was worried about my safety because maybe Mr Chidiac do something for me before the police and ambulance come. I was worried for my safety. Q. Mr Antoun, you took this photograph because you thought it might be evidence in a court case. Isn't that the truth? A. Yes, it can be evidence in anywhere. It can be evidence of Mr Chidiac attendance. Q. But, you see, you were talking to him about a compo claim and-- A. I never said that. Q. And - listen to me - and the evidence that you might require was in respect of that claim. A. Sir, I'm not - I'm not - I'm not - like if I want to have - if I have planned to have a compo against Mr Chidiac I wouldn't talk to him about it in - about it in lunchtime and then do it with him in the afternoons. That's like a little child want - want - little child won't be - but would be smarter to do such thing. Q. But, you see, what you did was to take a photograph which you used in this court case. A. Because I was worried that Mr Chidiac might-- Q. Isn't that correct? A. Yes. Q. And you were anxious to ensure that you had some evidence. A. Because I was worried that Mr Chidiac might leave the spot before the ambulance and police come and I never heard about compensation. I - first time I heard about compensation it was from my social worker at the hospital. Q. Now, you told us that the tyre ran over your foot. A. Yes. Q. And you told his Honour that it was the front driver's tyre. A. Yes. Q. The front driver's tyre, looking at exhibit C, is some distance back from the hinge of the truck. A. Yes." 1. The plaintiff said the time which elapsed between him falling to the ground and taking the photograph was 10-15 minutes. The photo was taken after the defendant had dragged him towards his car. 2. The plaintiff denied that he had already started a demolition business that was specialising in the removal of asbestos. However, he told the court that he was involved in asbestos removal as a "sole trader". The registered business name of that business was "Right Civil". He purchased a truck for that business in November 2015 and used the truck in the business of asbestos and demolition removal. He denied employing a team of tradesmen or labourers to work with him. 3. The plaintiff was shown documents from a social media platform known as "Linkedin" which included recommendations from customers who had used his services. The Linkedin profile became Ex 5. 4. The plaintiff was further asked about employing other workers in the following terms: "Q. Is it your evidence that you do not employ other workers and you do not have a team to assist in the asbestos removal jobs? A. There is people help me but they're not my employee. I get the job from a builder or a client or somebody. I supply my truck and those people supply the labouring. I don't supply the labouring. I get paid for my truck, those people get paid for the labouring. Q. But you are the one that is advertising that you have this team available. Isn't it part of the service that you provide? A. I get this team in touch with the client. That's all what I do. This team, they deal with the client. I don't deal with the client. I just offer the client that, "I have my truck and there is some people can help you," and I will supply only the supervision and the truck. That's what I get paid for." 1. The plaintiff drew a distinction between physically removing asbestos and supplying his license to do so, together with his truck. An extract from "Service Seeking Website" became Ex 6. That document recorded services provided by Right Civil. When asked whether, according to that document, he provided the service of asbestos removal, the plaintiff answered: "A: I provide the connection between those people and the client." He was asked: "Q: Who does the removal? A: Some of them, the client himself. And he, he just hire my truck. Q: But the truck is for what purpose? A: For tip hire, can be for tip hire. Q: For asbestos removal? A: For asbestos or for any Q: And where do you take the asbestos when you remove it in your truck? A: For Veolia Horsley Park." 1. The plaintiff gave evidence of the cost of hire for the truck depends on the job and what was being removed. He started running that business since January 2016, having registered the business name in September 2015. He purchased the truck in November. The plaintiff was asked: "Q. How much do you charge for the use of your truck for asbestos removal? A. I charge what the tip fees is, plus two to three hundred. The tip cost, plus two to three hundred, and it's different between every job because the weight is different on every job. Q. But you have a rate, do you not? A. No, I don't have a rate for - it's the tip fees, not me. It's up to the tip and also at the tip if you dump 100 kilos they charge you same as you dumping one ton. Minimum charge is one ton." 1. The plaintiff gave evidence that he received money from his mother to help pay for his truck. He had paid back that money. He also had brought money with him from overseas, although he could not remember how much. 2. The plaintiff denied that he threw himself backwards onto the road, and further denied that the defendant said to him: "What are you doing? What has happened?" 1. He was asked: "Q: And you said to him 'You ran over me', and he said 'You are a bullshitter. My truck has not moved. What are you doing? … A: I told him he hit me by truck." He denied using the words in Arabic "You ran over me". He further denied that the defendant said he was a "bullshitter". 1. It was put to the plaintiff that the defendant's vehicle's engine was not on, which he denied. He was then asked: "Q. And he said to you, "You are a big liar. My truck has not moved at all." A. Wrong. I deny. Q. And he said, "Call the police. You are bullshitting." A. Sir, he said to me-- Q. Did he say that or not? A. No, he didn't say that. Q. Did he say something like that? A. He said to me - he said to me - can you repeat the question, please? Q. Yes. He said to you, "You are a big liar. My truck has not moved at all." A. No, can you repeat-- Q. "Call the police. You are bullshitting." A. Can you repeat - can you repeat the previous question, please. He was … Q. Those words he said in the context, "You are a big liar. My truck has not moved," and he then said, "Call the police, you are bullshitting." What he was saying to you was that his truck had not moved. That's what he said to you. A. That's wrong. Q. But that's what he said to you? A. That's not, no. He didn't tell me. Q. He didn't say that. Is that what your sworn evidence is? A. Yes. He could be saying, "My truck didn't move at the end." But in the beginning he was offering me money and offering me lift to the train station. Sorry, to the medical centre. … Q. The dynamics of this incident did not involve you being hit by the door of the truck, did it? A. Can you say it again, please? Q. The door of the truck did not hit you, did it? A. It does. Q. You have sworn that the door of the truck was closed and then you said the truck moved forward. Is that the correct sequence? A. Yes." 1. In re-examination, the plaintiff gave evidence that he registered with ServiceSeeking.com online. He registered with the website the service of asbestos removal. He selected those services to get more work. He also registered for a number of other services including retaining walls, however, he denied doing that work. 2. The plaintiff gave further evidence about contacting construction companies by text message to advertise his services. He never got any job from ServiceSeeking.com. Other evidence relied on by the plaintiff 1. The plaintiff's tender bundle (Ex A), included records of the New South Wales Ambulance Service, clinical notes of Westmead Hospital, and of the Guilford Road Medical Centre, where the plaintiff was treated by Dr Hanna. It also included three reports of Dr V J Maniam, who was required for cross‑examination, and whose evidence is referred to below. Exhibit A also included a number of financial records supporting the plaintiff's claim for wage loss and treatment expenses. They are also referred to below. 2. The New South Wales Ambulance records contained the following history taken from the plaintiff: "Pain – right foot and lower thoracic This pt states argument over pay at work with boss. Pt states boss drove his truck forward and an over Pts right foot and nudged pt and pt fell to ground. O/A patient laying on ground left lateral, alert, well perfused. O/E pt c/o pain in cervical neck lower thoracic area and right lower leg. Nil visible deformity or sign of major trauma to any of these areas. Spinal precautions applied to patient. Analgesia administered with some effect. Decreasing pain. Denies any LOC or nausea." 1. In a document entitled "Consolidated Copy" (Ex A p 35), the following entries appeared: "Case nature – fall minor blunt trauma. Case description – 25 yo male presenting with mid cervical neck pain, mid lumbar back pain and minor abrasions on his right knee post a fall. Was lying on the road beside his car which was parked on the northern edge of the end of the cul-de-sac. Pt stated his leg was run over by a small truck moving from a stop position, sustaining pain in the back, lower right leg. Nil contusions on back or lower leg. Spinal precautions taken. Pt transferred to Westmead." 1. The plaintiff also relied on a statement taken by police from the defendant (Ex E). It was in the following terms: "Q: What happened? A: At about 5.15pm on Sunday the 19th of January 2014, I was working in Sefton and I finished, leaving for 5 A'Beckett Street Granville to check my machines. It's a construction site. From the time I left at 5.15pm, Antonios followed me to the construction site. He was working for me and I have known him for about three or four years. At 5 A'Beckett Street, I checked my machines. After that I went back to my truck across the road and I saw Antonios come to me and ask about work and I told him he can't have the job he wanted. I then got into my truck and sat down. I didn't even start the truck, and all of a sudden I saw him fall backwards on the road. He said 'You hit me with your truck?' I said 'How can I? The car is not on.' After that he got up and walked back to his car and laid down next to the driver's side door. After that I just went for the police and ambulance. Q: Anything else? A: No. Q: Any alcohol? A: No." 1. The statement in the police notebook was signed at 6.30pm on 19 January 2014. Evidence relied on by the defendant as to liability Evidence of Constable Adam Jennings 1. Constable Jennings attended A'Beckett Street, Granville on Sunday 19 January 2014. He observed a truck and a car on opposite sides of the road, and identified the vehicles as shown in a photograph taken at the time (Ex 1) The plaintiff was situated on the road near the driver's side door of his Holden motor vehicle, and said he was in pain in his right ankle and knee. He identified a statement in his police notebook taken from the plaintiff at Granville Police station, which became Ex 3. That statement contained the following: "Q: What happened? A: Sleiman asked me to give him a quote about a job and I told him that the price is $1,000. He wanted it for $900. I told him I'm not happy get someone else. Sleiman was in his truck when I was speaking to him. I'm not sure if the car was on. I think it was on. All of a sudden I saw the truck move forward with no indicator or nothing. The truck then ran over my right leg and I was hit by the door. I fell onto the ground and hit my back. Then Sleiman got out of the truck and started telling me 'I have little kids, I need to care for them, don't do anything' I said, 'I can't get up and my foot hurts and so does my back' He tried to life me and pull me over to the car. After that I called the ambulance. A short time later police and ambulance arrived. Q: Were you with anyone at the time? A: No, just me and Sleiman Q: How long have you known Sleiman? A: About two years. I do casual work for him. Q: Where were you before you arrived at A'Beckett Street and Park Street? A: We were at the job site in Merrylands, but also in Sefton earlier too. Q: Did you consume any alcohol that day? A: No. Q: Anything else? A: I don't think he hit me with the truck on purpose, but I think he just wasn't focussed, he was stressed. I'm pretty sure the car was on but in park with the handbrake up. Q: How do you know the handbrake was up? A: I could see it through the window and his door was open Q: Anything else? A: He told me while I was on the ground 'Get up I'll give you $800'. I said 'No' and waited for the ambulance. Q: Anything else? A: No." 1. The statement was taken on 15 February 2014 at 3pm. 2. The New South Wales Police Force COPS record was tendered as Ex 4. It contained the following narrative (the defendant is referred to as 'DRI1"): "About 5.15pm on Sunday the 19th of January 2014, DRI1 was at his workplace located in Sefton, finishing for the day. DRI1 also has machinery at the above LOC at a construction site and has decided to check on them while heading home. As DRI1 was proceeding to the above LOC, he has noticed the VIC also following behind him a few meters back. At the above time, DRI1 has arrived at the LOC, exiting his vehicle, and inspected his machines at the construction site. As he has turned around to leave, he has spotted the VIC approaching him and has started to talk about work. DRI1 has known the VIC for approximately 3 or 4 years and work together. The VIC was enquiring with DRI1 about more job opportunities, which he declined. After shortly speaking about work, DRI1 has proceeded back to VEH1 and sat down in the driver's seat, not even starting the ignition. All of a sudden, DRI1 has seen the VIC fall to the ground backwards and say "you hit me with your truck!" DRI1 has said "How can I? The car is not on!" Shortly after, the VIC has stood up and walked over to his car, laying down next to the passenger side door on the concrete. About 6:00pm on the same day, police arrived at the LOC and sighted the VIC on the floor next to his vehicle. The VIC initially told police that his knee and ankle were in pain and could not move. Police told the VIC to remain still while ambulance officers were on the way. Police spoke with DRI1 about the matter and he informed police of the information stated above, informing police that he never had VEH1 started and it was stationary the whole time. Police return to the VIC where he suddenly started to complain about his back. A short time later, ambulance officers from Auburn 339 arrived and assessed the VIC. Police obtained a version from DRI1 and also obtained the VIC's details. Police spoke with ambulance officers MIRTYLE and HERBERT who told police that all that seemed to be wrong with the VIC was minor grazing to his knee and neither his ankle or back were swollen or appeared to have any visible markings of injury. The VIC was still conveyed to Westmead Hospital." 1. In cross-examination, Constable Jennings was referred to his notation of "back pain" that the plaintiff was suffering. He gave evidence that the plaintiff initially told him that his ankle and knee were hurting, but later told him that he had back pain. He also made a notation of "right leg, ankle and abrasion to knee". 2. Constable Jennings was also asked about the sketch diagram in the COPS entry (Ex 4). He estimated that the distance between the driveway to the relevant property and the defendant's vehicle was 10-15 metres. It was put to Constable Jennings that he was never told by Dr Fountas that the plaintiff suffered a minor spinal injury, which the Constable denied. Finally, Constable Jennings gave evidence that he could not recall whether he asked the plaintiff whether the defendant had deliberately run into him. 3. In re-examination, Constable Jennings gave evidence that the plaintiff was not screaming when he was at the scene of the accident. Evidence of the defendant 1. The defendant gave evidence that he had conducted his business, Dynamic Excavations and Demolition, from 2001. Its business was to demolish and remove building structures, which included the removal of asbestos. He met the plaintiff in 2011 through another worker, Mr Jbara. He then employed the plaintiff on a number of jobs between 2011 and 2014. 2. The defendant gave evidence that he had seen the plaintiff working on a job site at Mosman in a black leather belt, which he carried in the boot of his car. He used the belt every day and put it on before he commenced working. 3. The defendant gave evidence that he asked the plaintiff for a tax file number to protect himself. However, he always paid the plaintiff in cash, on a daily rate of $150 per day. The plaintiff never gave him a tax file number. 4. The defendant gave evidence that on 19 January 2014, he was working on a job at Sefton. The plaintiff had been wearing his black leather belt that day. At lunchtime, he and the plaintiff went to a Lebanese bakery and ordered some pizzas. While they were waiting for the pizzas, the plaintiff said to him "I want to open my business". He gave this evidence: "A: Yeah. Well, he said, he 'I have my money. I want to buy machine and truck. I don't want to buy machine and truck now. I want to make big money. I tell him, 'How you make big money?'. He tell me, 'I want to make compo'. I tell him, 'You can't make compo'. … Q: Did you say anything else? A: Yeah, I tell him, 'You can't make compo bullshit way. Yeah, you, if you make compo at the job, work cover coming, the police coming, the ambulance coming, honest to God, and'"— 1. That conversation took place in Arabic. They then took the pizzas back to the worksite at Sefton and continued working until 4pm. At the end of the job, the defendant paid the plaintiff $750 for 5 days work and said to him, "I have this house at Merrylands. I want you to come and have a look at it'. 2. The plaintiff followed the defendant to Merrylands where the job involved removal of asbestos. The plaintiff said he wanted $1,000 for the job and the defendant said, "I'll give you $800". The defendant replied, "I'm not giving you more than $800". 3. The defendant was then asked "What did the plaintiff say?". He answered: "A: He tell me, 'Please, please, I want to work tomorrow. I don't have work to work tomorrow'. I tell him, 'It's not my business if you don't have work'. "I want to work. I want to – please, please'. Q: What did you say? A: I tell him, 'Okay, alright. We'll give you $900. You want to do the job for $900? Q: So what did you do then? A: After, I left. Q: How did you leave? A: I drive my car. I tell him, 'Don't worry about the job'." 1. The defendant gave evidence that he drove to A'Beckett Street, Granville, to check on an excavator he had on site there. The plaintiff followed him in his car. 2. The defendant gave evidence that he parked his truck and put the handbrake on and turned the truck off. He then got out of the truck and went to inspect the job. He saw the plaintiff in the street. He asked, "Why do you follow me up?" He then gave the following evidence: "Q: What did he say when you said— A: He told me, 'I follow you'. After I then listen to him, I go inside the machine, I check out the machine, and I come back to the truck. He follow me to the truck. I jump to the truck and I lock the door, and the handbrake is still – the truck is still off and the handbrake on. The truck not moving, no nothing, but the window down. … Q: Where was Mr Antoun? A: Mr Antoun followed me to the door. He started to – Mr Antoun followed me to the door. I'm inside the truck … Q: And what happened next? A: And after Mr Antoun talked to me, 'Why not give me the job please, please give me the job for tomorrow. Please, please give me the job'. I tell him, 'Look, I don't want to – I'm not giving you the job.' … Q: What did he say to you? Just take it slowly. He said what? A: He said to me, 'Please, Sleiman, give me your job to work tomorrow. I don't have work'. Q: What did you say? A: I tell him, 'Look, I don't want to give you the job tomorrow. Don't worry about the job. I'm not giving you for the job'. After, the truck not moving, no, nothing, I see Mr Antoun he … he put his hand in the door with the window down. He push himself back … (meaning backwards). Q: What happened then? Where did he – did he land on the road? A: Yeah, he land on the road, down on the road, and he tried to crying. He not crying. He bullshit. And after I open the door, I tell him, 'Why are you – you're a liar. Why are you a liar?' Q: What did he say? A: He say, 'No, no, you hit me with the truck, you break my legs, blah blah blah'. … Q: What happened then? A: What happened after, he want to call 000. I tell him, 'Call them. I'm here'. … Q: Did you drag across the road? A: No I'm not touching him. Q: You didn't touch him? A: No, I don't touch him." 1. In cross-examination, the defendant gave evidence that he had operated Dynamic Excavation and Demolition since 2001. He sometimes had one or two employees working for him, depending on how busy the job was. All the people he employed were sub-contractors. It was put to the defendant that the plaintiff had never provided him with a tax invoice, and he agreed. The plaintiff was paid in cash. 2. It was put to the defendant that the plaintiff operated a jackhammer in his work, however he denied that. 3. It was put to the defendant that it was Mr George Jbara that wore the black leather belt at work, which the defendant denied. It was further put to the defendant that the plaintiff did not wear the leather belt at the Mosman site, nor the Meadowbank site, which he denied. It was also put that the plaintiff did not wear the black leather belt at the Sefton site, which he further denied. 4. The defendant further denied that a third person was working at the Sefton site whose name was Imran. At lunchtime on 19 January 2014 he went with the plaintiff in the plaintiff's car to the pizza shop. It was put to the defendant that he went by himself, which he denied. He agreed that they brought the pizzas back to the building site to eat. He denied that there was a conversation while they were eating. He denied there was any conversation about issues of work at the Sefton site. 5. It was put to the defendant that at no time did the plaintiff say to him that he wanted to claim compo. He answered: "A: No, he tell me from him, he tell me – in the bakery shop while I'm waiting for the pizza." 1. It was also put to the defendant that at no stage did he say the words to the plaintiff to the effect that, "Compo is bullshit, it's gets in police, work cover, ambulance", which he denied. 2. The defendant gave evidence that it was just he and the plaintiff who worked on the Sefton worksite from 8am till 4pm. He paid the plaintiff in cash at the end of the day, and denied that the plaintiff alleged to him that he was owed $100. 3. The defendant agreed that he told the plaintiff there was a possible job at Merrylands involving asbestos removal. The plaintiff followed him to that worksite in his car. The defendant agreed that the plaintiff had quoted $1,000 to do the job, and in response he had offered $800. He denied saying that he would give the plaintiff $1,000, including $100 that he owed him from the Sefton site. He further denied saying to the plaintiff, "Follow me back home and I'll give you the $100". He denied being angry at the Merrylands site when they were discussing the job. 4. The defendant denied telling the plaintiff to follow him to A'Beckett Street, Granville. 5. The plaintiff's case was put to the defendant in the following evidence: "Q. Mr Chidiac, you parked your truck opposite the driveway leading into the block of land where your excavator was. A. Yeah, yeah, yeah. Somewhere around - nearly opposite. Nearly opposite. Maybe a little bit down, a little bit up, somewhere. Q. It was before Parker Street that you parked the car. That's right, isn't it? A. No. … Q. You had left the engine running on your truck. A. No. The engine off. Q. You had left the door open. A. Yes, the door open, the engine off. … Q. Then you came back out through the gate and through the driveway. A. Mm. Q. That's right? A. Yes. Q. Then Mr Antoun approached you? A. Yeah. He follow me, yeah. Q. Then he started talking to you about the $100. That's right? A. No, not for the $100. To talk to me about the job. He wanted the job to start tomorrow, to work. Q. He put to you, Mr Chidiac - he was asking about the $100 and he wasn't accepting the $1,000 to include the $100 owed to him. That's right? A. No, sorry. Q. You were a bit over - I withdraw that. Mr Antoun was causing you to be angry at that stage. That's right? A. No, he's not angry. Q. No, you. You. A. No, no. I'm not angry. He's not angry. Q. So he's still speaking to you about something that, you know, you thought had been dealt with. That's right? A. No. He spoke to me about the job. Q. He spoke to you about the job but you were angry. That's right? A. No, I'm not angry. I don't want angry. Q. You got into the truck, your truck. A. Yeah. I go inside the cabin and he talk to me from the window. Q. You got into your truck. Mr Antoun was talking to you whilst you were in the truck. That's right? A. Yeah. Q. You closed the door but you can't recall exactly how you closed it. That's right? A. What do you mean I close the door? Q. You closed the door but you don't know whether it was fully closed, whether it was-- A. No. Fully closed. Q. Fully closed. Mr Antoun, you said before that you locked the door. You said that? A. What do you mean lock the door? No. Q. You said you locked the door. A. No, I didn't. I tell you the door close. I tell you the door close, then the window open. HIS HONOUR Q. No, Mr Chidiac. What counsel is putting to you is that you gave evidence earlier in these proceedings today that you locked the door after you got in the truck. You said that-- A. Yeah, yeah, yeah. The door lock, yeah, yeah. Q. No. You said you locked the door. A. Yeah. I lock the door, yeah, because I go inside the truck and I lock the door. The window open. … Q. So I put it to you that the door wasn't locked and this is just a recent invention, Mr Chidiac. I'm putting to you that the door wasn't locked. A. How you know? Q. Mr Chidiac, can you please answer the question? A. I'm telling you the door lock and the window open. … Q. I'm asking you, Mr-- Q. Mr Antoun was standing relatively close to the truck. That's right? A. Yeah. … Q. So you couldn't see the rest of his body. That's right? A. No, I can't see the-- Q. So you don't know where his feet were positioned on the ground in relation to the truck? You didn't know that, did you? A. What do you mean, where he fell - fell back? Q. No. What I'm asking you is: because you could only see him from the neck up, you couldn't see his feet and where they were in relation to your truck? A. No, because I see his window - his hand, he put it in the window and he push, push himself-- Q. No, Mr Chidiac, I'm just asking you about where Mr Antoun was standing. A. Standing I tell you, next to the door: next to the door. Q. He was standing next to the door? A. I'm inside the cabin. Q. And when he was standing next the door-- A. Not very close to the door: maybe half a metre. Not very close to the door; very close, very close. Q. Mr Chidiac, he was standing close to your truck. He was standing near the door. That's right? A. He very close to the door. Q. Very close to the door? A. I tell you I'm not - I don't have tape measure there but it's close, very close to the door. Q. When he was looking at you, talking, his right shoulder was slightly forward, that's right, he was at an angle? A. What do you mean? Q. Mr Chidiac, the conversation continued while you were in the truck, about the Merrylands job? That's right? A. Yeah. Q. And Mr Antoun was still asking you about the hundred dollars. That's right? A. No; sorry, no, not for the hundred dollars. Q. Mr Chidiac, you were still quite angry with Mr Antoun? A. No, I'm not angry. I'm telling you I'm not angry. Why am I angry? Q. Mr Chidiac, and then what happened was at some stage you said to Mr Antoun - you swore at him didn't you? A. Swearing? Q. Swore? You used bad words to Mr Antoun didn't you A. No, he(as said) doesn't use: no. Q. You said, "Get off my dick," didn't you? A. No; sorry, no, I never. I've never used this language, sorry. Q. You've never sworn before? A. No, never; never, never. I don't want to say; no, never. Q. You never swear? A. No, I never. I'm telling you. Q. You never swear? But you said before to his Honour in evidence that you said "bullshit" when talking about compo. You said that? A. Yeah, because he talking about compo. But you're now, sorry for the woman, you're talking about "dick" now. You talk different: different. … Q. And then you looked away from Mr Antoun. That's right? You looked straight ahead? A. No, sorry. Q. You looked straight ahead? A. No. Q. That's what happened isn't it? A. No. Q. And then, Mr Chidiac, what then happened was you released the handbrake on your truck. That's right? A. No. Q. Mr Chidiac, you then heard Mr Antoun cry out in pain. That's right? A. No; sorry, no. Q. You never heard Mr Antoun cry out in pain? A. No. That's only I see him in the floor. He try to cry and he can't cry. … Q. After you heard him cry out in pain, you didn't know what was happening. That's right? A. No. Q. Mr Chidiac, what happened then was when you heard him cry out in pain you immediately opened the door to get out. That's right, yes? A. Yeah, because he fell on the back I opened the door. I tell him, "Why, what have you done? You're a liar. What have you done? This bullshit." Q. As you opened the door to come out, you didn't know what was happening did you? A. No. I see him, he's on the floor. He try to-- Q. Mr Chidiac, if you can please answer the question. HIS HONOUR: He was answering the question. A. I answer the question: I tell you I opened the door and I follow him. Q. And you didn't know what had happened. That's right? A. No; because, yeah, he tell me, "You ran over, you ran over," I tell him you're a liar, the truck not move. Q. So he had said to you that he'd been run over. Is that right? A. Yeah, well, that's what he say. I said to him, "You're a liar, the truck not move." Q. I put it to you, Mr Chidiac, that you didn't say that he was a liar. I put it to you that you didn't say those words then? A. I don't say to him? Q. You didn't say to him straightaway that you're a liar? A. No, I say to him straightaway, "You're a liar," because I know the truck engine off, handbrake on: the truck not moving. Q. I'll put it to you, Mr Chidiac, this way. Prior to you leaving your truck, the truck had in fact moved forwards. That's right? A. The truck move? Q. Yes. A. No, the truck no move. Q. Then after you got out of the truck, Mr Chidiac, Mr Antoun was on the ground. That's right? A. Yeah, but the truck no move. I see Mr Antoun on the ground. Q. You saw him on the ground and before you got out of the truck you saw him fly through the air in a backwards direction. That's right? A. Where he crying? What is he-- Q. You saw him fly through the air backwards and land on the ground. That's right? A. Yeah, I see him on the floor. Q. Yes, and he landed what, on the base of his back. Is that right? A. No, he tell me his legs. No, he never tell me his back. … Q. Mr Chidiac, did he land on his back? A. He landed on his back, yes. … Q. So as he was moving backwards his hands were in the air. Is that what you're saying? A. Yeah, he put - the window open like this, he stand next to the door-- Q. No, when he was flying backwards through the air-- A. Yeah, he push - he push all by himself. Q. When he was flying backwards-- A. He push by himself back. Q. When he was flying backwards through the air, both his hands were at about shoulder height. Is that right? A. Yeah. He push - he push him back. Q. When Mr Antoun hit the ground and you came out of your vehicle, Mr Chidiac, you were quite scared weren't you? A. Scared? No, I'm no scared. Q. You were worried-- A. No, I'm no scared. Q. You were worried about being possibly charged by the police for running over-- A. No, no. No; no, sorry. Q. If you could let me finish my question, Mr Chidiac. A. Yeah, finish. Q. You were quite worried about being charged by the police for running someone over. That's right? A. No. Q. In fact, Mr Chidiac, when Mr Antoun was on the ground you said to him, "Get up, get up." That's right? A. No, I tell - I tell him, "Get up. You're a liar." Q. You said get up, Mr Chidiac-- A. You're a liar, because the truck not touching you. Yeah. Q. Mr Chidiac, then you said words to the effect, "Get up, get up. I'll give you some money." That's right? A. No, sorry. No, never: never I tell him this story. Q. Mr Chidiac, you then tried to get Mr Antoun to stand up didn't you? A. No, I never touched him - touching him: never touch him. Q. You came around behind him and put both of your arms underneath his shoulders, didn't you, to try and get him to stand up? A. No; no. Q. At some stage, Mr Chidiac, you saw that Mr Antoun had reached into his pocket and grabbed his mobile phone and make a call. That's right? A. Yeah; he took his mobile phone, yeah. Q. Yes, and he made a telephone call didn't he? A. Yeah, triple-0 emergency. Q. Yes, to triple-0 emergency. And this is while you were carrying him, that's right? A. No, I'm never. I'm not - no, I'm not touching him. Q. How far do you say you were from Mr Antoun when he made this phone call? A. I'm not - about two, maybe one metre or two metre. Q. One metre? A. Or two metre. Q. Two metres. Now, whilst Mr Antoun was on this telephone call, you were dragging him backwards towards his car. That's right? A. No, I never touching him. Q. You were saying words to the effect, Mr Chidiac, "I'll take you to the hospital. I'll take you to the medical centre." A. No way. Never. Never I tell him anything. Q. You never told him anything? A. Never anything and he moved back himself to the next to the car. Q. Okay. A. Yeah. Q. Now, Mr Chidiac, I want to put this to you. That you, in fact, did drag him from the ground towards his motor vehicle. A. Me? Q. Yes. A. No. Q. Now, Mr Chidiac, I want to put it to you that Mr Antoun was crying out in pain while he's on the ground. A. He's crying bullshit. He no crying, proper crying. I'm telling you, I be there. He not, you know the..(not transcribable)..if he run it near his legs. … Q. So, Mr Chidiac, you do agree that Mr Antoun was crying out in pain when he was on the ground. A. No, not really, no, I'm not agree. … Q. Okay. Mr Chidiac, I want to put this to you. That your truck, in the photo, is approximately 10 to 15 metres from where it was originally parked, opposite the driveway. I want to put that to you. Do you agree or disagree? A. No, no agree. Q. Mr Chidiac, I put it to you, you wouldn't park your truck 10 to 15 metres up the road from the vacant block of land if you were trying to be quick. That's right? A. I tell you, I park the truck where the truck parking in the photo. Opposite the driveway, maybe this is the up, maybe this is down. I go down, see the machine and come back to the truck. Q. You agree, don't you, Mr Chidiac, that when Mr Antoun you were within one metre. A. About one metre, two metre. Q. But it could be one metre. That's right? A. I don't know. I don't know. I was somewhere around maybe one metre, two metre, because I-- Q. Where were you when the police arrived? A. When the police? Q. Yes? A. Next to Antounka. Next to Antounka. Q. Now, Mr Chidiac, I want to put it to you that you have invented this whole story about your truck not moving because you are scared of the consequences if you are found incorrect. Is that right? A. Nah, I'm not scared. I'm never scared. I'm telling you. Q. Yes, and I also want to put to you that your truck moved at least three to five metres from where it was parked to where it is shown in the police photo. A. Nah." 1. There was no re-examination. Defendant's submissions as to liability 1. The defendant denied, by its defence, that the plaintiff was involved in a "motor accident" as defined in s 3 of the MACA. The defendant further submitted that the plaintiff's claim had not been made in good faith, pursuant to s 117 of the MACA and that the incident and any consequent injuries suffered by the plaintiff was caused entirely by the intentional, reckless or negligent conduct of the plaintiff. 2. It was submitted that the evidence given by the plaintiff and defendant, who are the only two people present, does not coincide in essential parts. Therefore, the court should adopt the process of reasoning set out in Fox v Percy (2003) 214 CLR 118 at [129]. On those principles, the court should reason any conclusions on the basis of contemporary materials, objectively established facts and the apparent logic of events. Otherwise it was submitted that having regard to the demeanour of the witnesses, the defendant's version was more probable and persuasive than that of the plaintiff. 3. The defendant submitted that the contemporary materials which the court should have regard to consisted of the following: 1. Ambulance notes (Ex A, p 36) 2. COPS Report (Ex 4, p 3, together with photo taken by Constable Jennings (Ex 1). 3. The triage notes at Westmead Hospital (Ex A, p 72). 4. The results of the x-ray examination of the plaintiff's foot at Westmead Hospital (Ex A, p 58), and 5. The photograph taken by the plaintiff (Ex C). 1. The defendant then referred to the facts he submitted were establilshed on the evidence, some of which are set out in [4] above. It was submitted that the following matters were in dispute: (1) The condition of the plaintiff's back prior to the incident. 1. The plaintiff gave evidence that he was not suffering from any pre-existing injury, illness or disease and that he had no pre-existing disability or physical restrictions. It was submitted that that evidence was patently false, based on clinical notes of the plaintiff's local medical officer, Dr Obeid, which included a history given to Dr Obeid on 8 January 2014 that he had been suffering back pain for approximately 10 years prior to that date. The plaintiff's continuing pain was of sufficient severity to warrant Panadeine Forte being prescribed to him five days before the incident. 2. Further, the plaintiff did not tell Dr Maniam of his pre-existing ongoing back pain. It was submitted that the correct history was consistent with the defendant's evidence that the plaintiff worked each day wearing a lumbar support in the form of a black leather belt. (2) Whether the plaintiff suffered an injury to his lumbar spine in the incident 1. It was submitted that the evidence strongly supported a finding that the plaintiff was suffering from a pre-existing disease known as Scheurmann's disease in his spine. Radiological evidence indicated the presence of the disease, which was confirmed by both Dr Meagher (Ex A, p 131), and Dr Maniam (Ex A, p 191-204). 2. Further, the report from Dr Chew dated 24 August 2016 (Ex A, p 190) indicated that the compression fracture at L1/L2 was not a recent fracture, but of long-standing. Dr Maniam agreed that that abnormality was of indeterminate age. That evidence was destructive of the proposition that the plaintiff suffered an acute fracture of L1/L2 at the time of the incident on 19 January 2014. (3) The terms of the conversation between the parties at lunchtime on 19 January 2014 1. The defendant contends that a conversation took place between him and the plaintiff at a Lebanese bakery in Sefton at lunchtime on 19 January 2014. In that conversation, the plaintiff told the defendant that he wanted "to make big money", and when asked how he would do so, the plaintiff said 'I want to make compo". 2. The plaintiff denied that conversation took place and gave evidence to the effect that it would have been childish for him to do so, and then to perpetrate a false compensation claim. It was submitted that the defendant's evidence had the ring of truth about it. (4) The terms of the dispute between the parties leading up to the incident 1. The defendant submitted that the dispute between the parties, according to the plaintiff, concerned an amount of $100 owed to him by the defendant for work done. He did not specify in a precise way how that debt was created, although the plaintiff gave evidence that it was to pay for lunch. The defendant asserted that the dispute concerned a quote for work to be done on the removal of asbestos from a worksite in Merrylands, which was supported by a reference in the police notebook (Ex 3, p 75). It was not disputed that there was an argument over money between the parties. (5) The position of the vehicles on A'Beckett Street 1. The plaintiff gave evidence of the position of his vehicle and that of the defendant on A'Beckett Street when they first arrived there, by way of a sketch diagram (Ex B). The plaintiff marked Ex B with the letter "D" to mark the position of the defendant's truck as he photographed it. The defendant submitted that that evidence was entirely contradicted by Ex 1, which was the police photograph taken following the arrival of the police on the scene. It was submitted that the plaintiff's version of the position of the vehicles was completely wrong. The defendant gave evidence that his vehicle never moved from the time that it was parked. It was submitted that if the court accepts that the photograph Ex1 is accurate as to the position of the vehicles when they arrived at A'Beckett Street, and finds that neither of the vehicles were moved leading up to the incident, then the plaintiff's case must fail. (6) The dynamics of the incident 1. The defendant submitted that the plaintiff's entire case was centred on the proposition that the defendant drove his truck forward, thereby running over the plaintiff's foot. The plaintiff did not give any evidence as to how he came to be hit by the driver's door of the defendant's vehicle, or the circumstances in which that occurred. It was submitted that if the plaintiff's version is accepted, it was impossible for him to have been struck by the driver's door, if in fact the truck moved forward. 2. Further, the plaintiff gave no evidence as to how or in what way the truck moved forward. The defendant, on the other hand, gave evidence that he told the plaintiff that he was not giving him the job which was being discussed, following which, the plaintiff put his hands on the door of the defendant's vehicle, with the window down, and pushed himself backwards and landed on the road. The truck did not move and the defendant did not touch him. (7) Whether the tyre of the truck ran over the plaintiff's foot? 1. The plaintiff gave evidence that the steel cap of his boot was run over by the front driver's side tyre of the defendant's vehicle. However, it was submitted that the court will find that the plaintiff's foot was not injured in the incident. There is no objective evidence of any such injury, relying on the ambulance notes, the triage notes from Westmead Hospital, and the police records, which record that Constable Jennings saw no observable signs of injury. 2. It was submitted by the defendant that the plaintiff's version of events was rendered more improbable by the fact that after he fell to the ground, he said he was screaming and was in extreme pain. Notwithstanding that, he photographed the defendant's truck while he was lying on the ground. His motivation was to take the photograph for evidence, however, the photographic evidence did not support the plaintiff's version that the truck had moved. It was submitted that Ex C, a photograph which shows Parker Street immediately behind the defendant's truck, which corroborated the defendant's version of events and Ex 1. 3. For the reasons set out above, the defendant submitted that the defendant's version of events should be accepted. On that basis, a finding should be made that the incident did not meet the definition of a "motor accident" as defined in s 3 of the MACA. There should therefore be a judgment for the defendant. 4. It was further submitted that the court would find that the plaintiff made statements knowing them to be false and misleading, and had made a false claim within the meaning of s 117 of the MACA. Particulars of the false and misleading statements were as follows: 1. The plaintiff's claim form dated 31 January 2014, giving a false description of the accident. 2. The plaintiff's evidence that he was knocked to the ground by the door of the truck. 3. The negative answer to Q 34 of the claim form, as to previous illness and disability. 4. The plaintiff's lack of bona fides demonstrated by: 1. The failure to declare or pay tax on his substantial cash earnings between 2011 and 2014, relying on Matar v Jones [2011] NSWCA 304; 2. False statements to the Australian Government Department of Human Services as to his earnings whilst he was working both as a waiter and a labourer, stripping asbestos, to allow him to continue receiving welfare payments; 3. False statements to Dr Michael Long in support of the application for a certificate under s 61 of the MACA, that he had been in good health and had not sustained any pre-existing significant injuries (or disabilities), in particular, to the regions under consideration for that assessment. 1. The defendant's submissions as to the medical evidence and quantum of the plaintiff's claim are referred to below. The plaintiff's submissions as to liability 1. The plaintiff submits that there was a motor vehicle accident caused by the fault of the defendant which caused injuries to the plaintiff. The plaintiff agreed that the correct approach is that set out in the defendant's submissions, relying on Fox v Percy, supra. 2. The plaintiff submitted that central to the primary issue is the factual issue as to whether the defendant's truck moved. The location of the defendant's truck immediately following the incident was consistently recorded in the diagram produced by Constable Jennings (Ex 4, p 5), the plaintiff's diagram (Ex B, at (d)), the photo taken the plaintiff (Ex C), and the police photograph (Ex 1). All those documents demonstrate that the truck was located on the southern side of A'Beckett Street, with part of the truck protruding over Parker Street. Constable Jennings confirmed in cross-examination that one-quarter of the truck was in front of Parker Street. 3. The defendant's evidence was that when he arrived at A'Beckett Street, he parked opposite the driveway of the vacant block of land on which his machinery was located. That was consistent with the plaintiff's evidence. The distance from that driveway to where the defendant's truck was finally located, was approximately 10-15 metres. 4. With respect to the dynamics of the incident, the plaintiff submitted that as a result of movement of the defendant's truck, it ran over the end of his steel capped boot and the driver's side door hit him, causing him to fall to the ground. It was submitted that it was "not surprising that the plaintiff is unable to say how he was hit by the door or how the truck moved, as the plaintiff was in pain and the accident occurred in such a short period of time". 5. The defendant's statement to Constable Jennings (Ex E), varied from his evidence to the court in a material respect. It was submitted that the defendant for the first time in court alleged that the plaintiff put his hands on the window of the truck and pushed himself backwards. That was never put to the plaintiff in cross-examination, and an inference arises that it was a recent invention by the defendant and did not occur. 6. It was submitted that on balance, it was clear that the truck moved and came into contact with the plaintiff, "most probably in the manner with the plaintiff's evidence and as a result of this the plaintiff has been propelled backwards, such that he landed on the base of his back". 7. The plaintiff relied on the recording of the OOO call as being telling of the level of pain he was suffering. It was submitted that he was clearly in distress at the time of that call. The plaintiff also observed bruising or an abrasion to his right knee, which was also observed by Constable Jennings. That was recorded in his notebook (Ex E, p 37). It was also noted by the ambulance service (Ex A, p 35) and was corroborated by the police in their conversation with ambulance officers (Ex 4, p 3). It was submitted that given the evidence of both the plaintiff and the defendant, that the plaintiff landed on his back, the presence of an abrasion or bruising on the plaintiff's right knee was consistent with the truck coming into contact with the plaintiff. Also relevant was that the medical evidence from Westmead Hospital, including the report of Dr Mah, (Ex A, p 131), and the medical certificate of Dr Yam (Ex A, p 116-117), were consistent with the plaintiff's version of the accident. 8. The plaintiff submitted that the defendant's allegation that a conversation took place at lunchtime in which the plaintiff allegedly stated to the defendant that he wanted "to make compo" should not be accepted. The plaintiff relied on the presence of a third worker, Imran, who was present at the Sefton site on 14 January 2014, including through lunchtime. It was further submitted that the topic of the alleged conversation between the plaintiff and the defendant is immaterial to the Court's consideration of whether any accident occurred. The basis of the dispute between the parties was not manifestly different in any event. 9. It was further submitted that the defendant's submissions as to the plaintiff's lack of credit involved a number of allegations which were unsupported by the evidence. Even if made out, they do not assist the defendant, as the objective evidence points to the accident occurring in the manner advanced by the plaintiff. 10. The plaintiff submitted that the absence of injury to the plaintiff's right foot was explained by the driver's side front wheel of the defendant's vehicle running over the steel cap of the boot. It was submitted that whilst it is not clear how the driver's door of the truck struck the plaintiff, it most probably occurred "by coming open, but perhaps not". It was submitted that the only available inference is that the truck moved as a result of the defendant's use or operation of his motor vehicle, as he was in the front driver's seat. He knew at the time that the plaintiff was next to the door and the plaintiff was provided with no warning that the defendant's truck was about to move. In those circumstances, it was submitted that the plaintiff's injuries were caused by the fault of the defendant in the use or operation of driving of his motor vehicle pursuant to s 3 of the MACA. 11. In respect of the defendant's case that the plaintiff's claim was a false claim pursuant to s 117 of the MACA, and that the plaintiff's evidence was, in many different respects, patently false, the plaintiff submitted that he was not challenged as to whether he had any pre-existing disability of the lumbar spine or physical restrictions. There was an inherent unfairness in the defendant's failure to put the content of Ex 7 to the plaintiff, in the same manner as it was put to Dr Maniam. This was readily demonstrated by the use of the word "back" in the doctor's notes. This constituted a failure by the defendant to comply with the law in Browne v Dunn (1893) 6 R 67, and as a consequence, it was submitted that the defendant could not now submit that the court should disbelieve the evidence of the plaintiff, relying on Precision Plastics Pty Limited v Demir (1975) 132 CLR 362. It was submitted that caution should be exercised by the court regarding the use of histories taken by medical practitioners and the Court ought to accept that the plaintiff had no pre-existing disability of the lumbar spine or physical restriction. 12. The plaintiff's submissions as to damages are referred to below. Defendant's submissions on liability in reply 1. The defendant submitted in reply that the two essential elements of the plaintiff's case to establish liability are that movement of the truck caused the driver's door to strike the plaintiff who was standing beside the truck, and to knock him to the ground. The apparent logic of events dictates that the driver's door could not strike the plaintiff if it was closed at all relevant times. It was not in dispute that the driver's door was in a closed position when the plaintiff was standing next to the defendant's truck, and the parties were speaking. It does not assist the plaintiff's case to submit, as the plaintiff did, that he is unable to say how the door hit him, because he was in such pain. The plaintiff gave no evidence as to how the truck moved or how the door struck him. 2. The defendant submitted that the onus of proof when s 117 of the MACA was pleaded in defence to a claim for damages is that set out in Briginshaw v Briginshaw (1938) 60 CLR 336. 3. The defendant submitted that the evidence relied upon by the plaintiff to establish movement of the truck was imprecise and based on unreliable sources. The most cogent and probative evidence of the respective positions of the vehicles was the photograph taken by police at the time of their investigation (Ex 1). It was submitted that the court would accept the defendant's evidence that the truck did not move after he got back into it, and it remained in the same position as shown in Ex 1. Further, it was illogical and improbable that a truck the size and weight of the defendant's vehicle could run over the plaintiff's right foot without leaving any trace or mark, or any injury, even with a steel capped boot. There was no objective evidence of any injury to the plaintiff's foot. 4. The defendant submitted that there was no recent invention by the defendant in respect of the lunchtime conversation in dispute about the plaintiff "making compo". 5. It was submitted that the court would accept the defendant's version of that conversation as it throws light upon and corroborates the subsequent events that occurred later that day. 6. The defendant submitted that the court would draw no inference adverse to the defendant for the failure to call evidence from the person named Imran. That person was not someone whose evidence could put any true complexion on the facts, nor was he "in the camp" of the defendant. 7. The defendant further submitted that the plaintiff's submission as to the application of the principle in Brown v Dunn, supra, was incorrect and its application to the facts of this case was misconceived. It was submitted that the rule imposes an obligation which is discharged if it is made apparent to the plaintiff that the defendant was suggesting that any assertion by him that he did not have any prior back condition, weakness or disability, ought not be accepted. It was contrary to the evidence here, as the plaintiff submitted, he was not "challenged as to whether he had any pre-existing disability of the lumbar spine or physical restrictions". The clinical notes of the plaintiff's general practitioner, Dr Obeid, were directly related to that issue and had been raised with the plaintiff twice in cross-examination, as was the issue of the supportive lumbar belt. The plaintiff had the opportunity to give evidence in reply to explain away or rebut the doctor's clinical notes. 8. It was submitted that the plaintiff clearly based his claim for damages unequivocally upon the proposition that he had no pre-existing injury, disability or weakness in his back. The plaintiff's evidence in support of that proposition was manifestly false. 9. The defendant submitted that the plaintiff's submissions in respect of the alleged lack of bona fides in the plaintiff did not deal with the plaintiff's credibility at all, for example, his want of compliance with the taxation laws. As there were only two persons involved in the incident, and no other witness, the question of credibility of the parties forms an important and determinative role in the decision making process. Findings of fact 1. Having regard to the whole of the evidence, I find the following facts on the balance of probabilities: 1. Both the plaintiff and the defendant travelled to A'Beckett Street, Granville, on the afternoon of 19 January 2014. 2. I accept the plaintiff's evidence that when they arrived the defendant proceeded down A'Beckett Street to the end of the cul-de-sac and turned his vehicle and parked it opposite the driveway to the vacant lot on which the defendant's machinery was placed. I accept the plaintiff's evidence that his car was parked where shown in the photograph Ex 1, and remained stationary there. 3. I accept the defendant's evidence that he and the plaintiff argued over a quote the plaintiff had given him for work to be carried out at the Merrylands worksite. It was for that reason that the plaintiff had followed the defendant to A'Beckett Street. 4. I find that when the police arrived, the defendant's vehicle had been moved from its original place to the location depicted in Ex 1. It was in that location, that a further discussion took place between the plaintiff and the defendant, with the plaintiff standing outside the driver's window of the vehicle. 5. I find that the defendant's vehicle did not run over the plaintiff's right foot at any time. There is no objective evidence of any injury to the plaintiff's foot and I reject the plaintiff's evidence that that occurred. 6. I further find that the driver's side door of the defendant's vehicle did not cause the plaintiff to fall backwards. The defendant's vehicle, as depicted in Ex C, clearly shows the driver's door being in a position forward of the front driver's side tyre. It was entirely implausible that the door should come into contact with the plaintiff after the front tyre passed over his right foot, and that was not supported by any evidence, that it did so, even on the plaintiff's evidence. 7. I therefore find that whatever caused the plaintiff to land on his back on the roadway, in the location where he was able to take a photograph of the defendant's vehicle, and make a 000 phone call, that was not caused by the defendant's driving management or control of his motor vehicle. Determination of liability 1. The onus is on the plaintiff to prove, on the balance of probabilities, that the defendant was negligent in the driving management and control of his motor vehicle. The plaintiff must prove his case by application of sections 5B and 5C of the CLA (breach of duty of care), and also has the onus of proving causation pursuant to s 5E of the CLA. 2. Based on the findings of facts made by me, as set out above, the plaintiff has failed to prove his case. The evidence as to the mechanism of his injury did not support a plausible explanation as to how he suffered any injury to his knee, or to his back. Having regard to the objective circumstances as required by the principle in Fox v Percy, supra, the established facts and the apparent logic of events, I am not satisfied that the plaintiff has made out his case on the balance of probabilities – see, for example, Springfield v Duncombe [2017] NSWCA 137 per Basten JA at [11]. 3. Further, I am satisfied that the plaintiff lacked credit worthiness in the following aspects of his evidence: 1. His explanation as to what he and the defendant were arguing over, for example, whether he had been short paid $100, whether that amount represented some payment in respect of lunch purchased by the defendant, or whether it was in relation to a quotation for works on the Merrylands site. 2. His physical ability to carry out work without restriction, whereas it was clear that he had suffered a back problem for a period of some 10 years. I do not accept the plaintiff's submission that the defendant failed to comply with the rule in Brown v Dunn, supra, in respect of this issue. 3. His failure to comply with the taxation laws also goes to the plaintiff's credit. His explanation that this was not required when living overseas, was entirely implausible. Matar v Jones, supra, is authority for the proposition that failure to comply with taxation legislation is a matter that goes to credit, although the Court went on to hold that the plaintiff was entitled to have taken into account evidence of earnings that were not disclosed for that purpose, subject to a reduction for income tax that should have been paid, following the South Australian Full Court's decision in Giorginis v Kastrati (1988) 48 SASR 371. 4. His failure to disclose to the MAS Assessor and Dr Maniam his previous history of back injury and treatment. 5. His evidence that his business of asbestos removal merely involved provision of a truck, and supervision of labourers who were not employed or contracted to him, and did not form part of his "team". 1. I am therefore not satisfied that the plaintiff was injured in a motor accident as defined in the MACA. This does not mean that I accepted entirely the evidence given by the defendant. For example, I do not accept that he and the plaintiff had a conversation at the Lebanese bakery during the lunch hour, in which the plaintiff told him he was going to "make compo". As the plaintiff's evidence demonstrated, to say that and then to perpetrate a false claim against the defendant later that day, would have been patently childish. Nor do I find that the plaintiff used a lumbar support belt on work sites on which he worked, based on the evidence given by the defendant, and the way in which the plaintiff was cross-examined about that subject matter. However, the onus of proof is on the plaintiff to prove his case on the balance of probabilities. He has failed to do so. 2. A consequence of this finding is that the defence relied on pursuant to s 117 of the MACA has been made out. In addition to entering a verdict for the defendant, I will give the defendant the opportunity to be heard on any consequential relief he seeks pursuant to s 118(2) of the MACA. Damages 1. If I am wrong in coming to the conclusion expressed above, I proceed to assess damages on the basis that the plaintiff had established his case. Counsel for the plaintiff submitted that accepting the whole person impairment of 22% assessed by Dr Long, the plaintiff, who is 28 years of age and suffered a severe injury to his spine, is entitled to an award of damages for non‑economic loss assessed at $250,000.00. 2. For past out of pocket expenses, the plaintiff claimed cost of medications, together with an obligation to repay Medicare, totalling $3,020.00. 3. For future treatment expenses, the plaintiff claims ongoing costs of medication based on his current regime ($2,665.00), together with a buffer for supervision by his general practitioner, specialist and travel expenses of $5,000.00, a total of $7,665.00. 4. It was submitted that prior to the accident the plaintiff performed work as a labourer in construction, demolition and asbestos removal on a casual basis. He was unable to provide an approximation as to his average weekly earnings for the period mid-2013 to January 2014, when he began to receive a Newstart Allowance. Following his injury, the plaintiff registered an Australian business number and purchased a tipper truck, as well as obtaining a heavy rigid (truck) driver's licence and an "Asbestos Removal Ticket". He commenced operating his business in approximately January 2016, and in the six months prior to hearing, had earned between $200 and $300 per week, on the basis of approximately 15 hours work per week. The plaintiff submitted he was unable to increase his working hours due to the pain in his back, and the restrictions that it imposed on him. He had difficulties with standing for long periods of time and heavy lifting due to his lower back and knee injuries. 5. The plaintiff submitted that for the period 19 January 2014 to January 2016, the plaintiff should be awarded a buffer to commensurate with the sporadic nature of his business of his employment, in the sum of $10,000.00. Thereafter, to the date of hearing, the plaintiff submitted a further buffer should be assessed in a sum of $20,000.00 to reflect his current inability to perform more than 15 hours per week of work. 6. For future economic loss, it was submitted that in accordance with s 126 of the MACA, the plaintiff's most likely future circumstances, but for the injuries he sustained in the motor vehicle accident, involved him continuing to work in the demolition and construction industry. It was submitted that the court would accept Dr Maniam's opinion that there had been an impairment of the plaintiff's future earning capacity. As the plaintiff's economic loss could not be calculated with precision, it was submitted that he had suffered a general diminution of his earning capacity, which may be productive of financial loss in accordance with Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. Counsel for the plaintiff advocated an assessment for future economic loss of damages in a lump sum of $150,000.00. 7. The defendant submitted that the opinion set out in the three reports of Dr Maniam (Ex 1, pp 191-204) should be disregarded as the opinions expressed therein were based on statements which were false, namely, that the plaintiff had no prior ill health and no prior pain in his spine. In cross‑examination, Dr Maniam conceded that it was very important to be told that the plaintiff had suffered back pain for a period of 10 years prior to the accident, and that he had pre-existing neck pain and headache. It was submitted that those facts had been concealed from Dr Maniam by the plaintiff. 8. Similarly, Dr Long's opinions suffered from the same defects. The plaintiff's pre‑existing conditions were also concealed from Dr Long. It was submitted that Dr Long's assessment was only binding as to the plaintiff's entitlement to damages for non-economic loss in accordance with s 131 of the MACA, and not on any other matter, including causation of injuries – relying on Brown v Lewis (2006) 65 NSWLR 587, and other authorities. 9. In respect of damages for non-economic loss, the defendant submitted that the plaintiff's pre-existing Scheuermann's disease, and history of 10 years back pain prior to the incident, constituted significant pre-existing conditions which had not been the subject of any claim by the plaintiff, for example, by way of exacerbation. On the contrary, the plaintiff's case was firmly and unequivocally put on the basis that he had no pre-existing injury or disease to his back. 10. In respect of future economic loss, the defendant submitted that there was no evidence sufficient to allow the court to make an evaluation of the plaintiff's earning capacity, and diminution thereof. In those circumstances, the correct approach was to assess damages upon the basis of the loss of an opportunity to earn money in accordance with Chaplin v Hicks (1911) 2KB 786, and Malec v J C Hutton Pty Limited (1990) 169 CLR 638. As the plaintiff had not led any evidence to establish even the fact of loss or damage, he had failed to discharge the onus of proof on these issues and therefore his claim for future economic loss must fail. Further, there was no evidence to support a claim for a loss of $450 per week, or a weekly loss of $180 per week from January 2016 to date. The plaintiff led no evidence as to the success of his business or its profitability. 11. It was submitted that there was no evidence that the plaintiff had a need for future domestic assistance, either on a commercial basis or otherwise. To the extent that the plaintiff relied on Dr Maniam, he was an orthopaedic specialist and therefore not qualified to express an opinion as to the plaintiff's need for domestic assistance, relying on Sampco Pty Limited v Wurth [2015] NSWCA 117 at [83]; and Boral Bricks Pty Limited v Cosmidis [2013] NSWCA 443 at [93]. 12. Further, it was submitted that there was no proof of past treatment expenses and no admissible evidence as to the need for or amount of any future treatment required by the plaintiff. It was noted that the plaintiff has now abandoned his claim for past and future care and domestic assistance. Assessment of damages 1. Given the clear history of Scheuermann's disease and a history of back pain suffered by the plaintiff for some 10 years prior to the accident, damages for non‑economic loss could only be awarded on the basis of an exacerbation of the condition of his spine. Based on the evidence, the court could not find that the plaintiff suffered a frank injury to his spine or knee. Notwithstanding the finding of whole person impairment of 22% by Assessor Long, damages for non-economic loss, which once the plaintiff has passed the threshold, are assessed at large. I would assess the plaintiff's damages under this head as $50,000.00. 2. The plaintiff's claim for past treatment expenses, including the Medicare expenses is reasonable, and for that reason I would allow his claim in the sum of $3,020.00. I would also allow a lump sum for medications, and periodic assessment by his general practitioner and specialist, in a total sum of $5,000.00. 3. The plaintiff's claim for past wage loss is problematical due to his failure to lodge tax returns and his inability to prove with precision the amount of money lost. Notwithstanding his failure to comply with the taxation laws, which certainly goes to his credit, particularly given the implausible reason for failing to do so (namely, that he was not required to do so overseas in Lebanon), the plaintiff has demonstrated an inability to work in unskilled work of a labouring nature since the accident, for which I would award a lump sum of $15,000.00. 4. For the future, in accordance with s 126 of the MACA, I find that the plaintiff's most likely future circumstances, but for the injuries he sustained in the motor vehicle accident, was for him to continue working in his own business in the demolition and construction industry. In that business he would have worked in a supervisory capacity, but also from time to time, in a labouring capacity. 5. The plaintiff has not demonstrated, on the balance of probabilities, any diminution in his earning capacity to supervise demolition and asbestos removal work. In respect of his ability to carry out physical labour, he has suffered a general diminution of his earning capacity that may be productive of a financial loss. Notwithstanding the difficulty in doing so, I would assess that loss for the future in a lump sum of $50,000.00. 6. I would therefore have assessed the plaintiff's damages as follows: Non-economic loss $50,000.00 Past treatment expenses $3,020.00 Future treatment expenses $5,000.00 Past wage loss $15,000.00 Future economic loss $50,000.00 Total $123,020.00 Conclusion and Orders 1. For the reasons outlined above, the plaintiff's claim must fail. I therefore make the following orders: 1. Verdict for the Defendant. 2. The Plaintiff to pay the Defendant's costs of the proceeding. 3. Exhibits to be returned forthwith. 4. Any application for a special costs order is to be made by way of Notice of Motion, together with affidavit evidence in support thereof, on 5 days' notice to the opposing party. 5. Defendant to make any application for further orders sought pursuant to s 118 of the MACA within 30 days by Notice of Motion supported by affidavit evidence. ********** 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: 15 August 2017