District Court New South Wales Medium Neutral Citation: Homsi v Pasquale [2017] NSWDC 371 Hearing dates: 1, 2, 8, 13, 17 and 21 November 2017 Date of orders: 21 December 2017 Decision date: 21 December 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the plaintiff for $0. (2) Costs reserved with liberty to apply. Catchwords: TORT – personal injury – plaintiff a passenger in a stationary vehicle involved in a slow speed rear-end collision at traffic lights – breach of duty of care admitted – assessment of damages – claims for past and future home assistance and past and future out of pocket expenses - plaintiff consulted a general practitioner once but thereafter had no medical treatment – past and future out of pocket expenses agreed to be zero – causation - plaintiff previously involved in two more serious accidents – medical certificate on plaintiff's claim form unsatisfactory – plaintiff's medico-legal evidence inaccurate and deficient – occupational therapist's report relied on medical certificate filled out by retired medical practitioner at plaintiff's solicitor's office after her claim form was completed - no allowance made for past or future home care – whether damages award of $0 could be made Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 83, 85A and 109 Uniform Civil Procedure Rules 2005 (NSW), r 7.29 Cases Cited: Broxton v McLelland (No 2) [1997] EMLR 157 Cha v Oh (No. 21) (2009) 9 DCLR (NSW) 67 Dank v Nationwide News Pty Ltd [2016] NSWSC 295 Homsi v Nabulsi [2017] NSWDC 16 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Spautz v Dempsey (Supreme Court of New South Wales, 29 April 1993) Teskey v Toronto Transit Commission, 2003 CanLII 12871 (ON SC) Category: Principal judgment Parties: Plaintiff: Souraya Homsi Defendant: Felli Pasquale Representation: Counsel: Plaintiff: Dr S C Thornton Defendant: Mr A J J Renshaw Solicitors: Plaintiff: Drexler & Partners Litigation and Compensation Lawyers Defendant: Hall & Wilcox Lawyers File Number(s): 2016/200013 Publication restriction: None Judgment The plaintiff is involved in a low-speed motor vehicle accident 1. The plaintiff by statement of claim filed on 1 July 2016 seeks damages arising from a motor vehicle accident in Macquarie Street, Liverpool, on 28 May 2015. On the day in question the plaintiff was a passenger of a vehicle which was stopped at a red light when the defendant's vehicle, travelling at low speed to stop behind the stationary vehicle in which the plaintiff was sitting, struck that vehicle's bumper bar. There was no damage to the vehicle, according to the referral letter sent by the insurer to medico-legal experts (Exhibit 1, p. 6). 2. Breach of duty of care was initially admitted. However, in an Amended Defence, the defendant subsequently pleaded: "2. In response to paragraphs 5, 6, 7 and 8 the defendant admits that the collision occurred, but does not admit that the plaintiff was a passenger in vehicle registered BX77WJ at the time of the collision." 1. Although the plaintiff was cross-examined about whether she was in the vehicle or not, and the defendant gave evidence that he did not see her, the main issue which emerged in the course of the hearing was whether the plaintiff had suffered any injury at all in the collision rather than whether she was actually present. The plaintiff brings a claim for damages for personal injury 1. The plaintiff's claim for injuries and disabilities is extensively particularised in a statement of particulars provided on 1 July 2016. By reason of the way in which the hearing proceeded, it is necessary to set these out in full. 2. The plaintiff particularised injuries to the following parts of her body: 1. Cervical spine; 2. Right knee; 3. Right thigh; 4. Lumbar spine; 5. Left shoulder; 6. Head injury; 7. Psychiatric/psychological. 1. The plaintiff particularised the following continuing disabilities: 1. Constant pain and discomfort in back; 2. Aggravation to pain in back when sitting or standing for extended periods; 3. Aggravation to pain in back when walking for extended distances; 4. Aggravation to pain in back when lifting weights; 5. Aggravation to pain in back when walking up and down stairs or on uneven surfaces; 6. Aggravation to pain in back when bending or twisting; 7. Constant pain and discomfort in neck; 8. Aggravation to pain in neck when sitting or standing for extended periods; 9. Aggravation to pain in neck when driving; 10. Aggravation to pain in neck when lifting; 11. Pain in neck radiates into head; 12. Headaches; 13. Blurred vision; 14. Pain in neck radiates into shoulder; 15. Loss of strength in left arm and hand; 16. Anxiety; 17. Stress; 18. Depression; 19. Mood swings; 20. Anger bouts; 21. Broken sleep pattern; 22. Lethargy; 23. Reclusive habits; 24. Loss of self-esteem; 25. Loss of confidence; 26. Loss of concentration; 27. () Reliance on professional cleaner for home support; 28. () Reliance on others for home support. 1. The plaintiff provided the following past and future out-of-pocket expenses: 1. The plaintiff has incurred and will continue to incur medical, hospital, pharmaceutical, physiotherapy and the like expenses and a claim is made for these amounts. 2. The plaintiff claims all money repayable to Medicare up to and including the date of trial. 3. The plaintiff additionally claims any money paid by the insurer pursuant to s 83 of the Motor Accidents Compensation Act 1999 (NSW). 1. The plaintiff's future out-of-pocket expenses were particularised as follows: 1. The plaintiff is 26 years of age. 2. The plaintiff will require future out of pocket expenses including but not limited to: 1. Analgesic medication at $5 per week for 62 years (1,017.5) totalling $5,087.50. 2. Consultations with her GP four times per annum at $80 per visit for 62 years (1,017.5) totalling $6,261.54. 3. Consultations with an orthopaedic specialist twice per annum at $250 per attendance for 6 years (271.4) totalling $2,609.62. 4. Intermittent physical therapies at $1,200 annually for 5 years (231.5) totalling $5,342.341. 5. Gym membership at $1,200 per annum for 10 years totalling $9,528,45. Total: $28,829.42 1. The plaintiff made no claim for non-economic loss or for past and future economic loss, but she made the following claim for domestic assistance and/or attendant care: 1. The plaintiff makes a claim for future domestic assistance. 2. The plaintiff's ongoing pain and restrictions have prevented her from attending to her previously enjoyed domestic duties. The plaintiff is only capable of performing light domestic tasks on a piecemeal basis, using pacing and rest. 3. The plaintiff does not live with anyone else who could provide gratuitous domestic assistance as her father suffers from ongoing disabilities that prevent him from attending to domestic duties. 4. The plaintiff relies on the recommendations in the medical evidence which indicate her ongoing need for commercial domestic assistance. 5. The claim for future domestic assistance arising from the subject accident on 28 May 2015 is therefore quantified as follows: 3 hours per week x $44 x 62 years (1017.5) totalling $134,310.00. A preliminary issue: the plaintiff's solicitors seek leave to withdraw on the day of the hearing 1. The plaintiff's claim has an unfortunate procedural history. On 14 September 2016 there were noted to be a related matter to Homsi v Nabulsi (2016/201584), and on 5 December 2016 the plaintiff's solicitor filed a Notice of Ceasing to Act. The plaintiff then consulted David Marocchi of Paramount Compensation Lawyers who filed an Appearance on 20 December 2016. On 6 February 2017, the proceedings were adjourned to 7 March 2017 for directions pending the related proceedings and on 7 March 2017, after the related matter was noted as being dismissed, a Notice of Change of Solicitor was directed to be filed and served on 24 March 2017, as Mr Jason Di Michiel had resumed acting. The proceedings were stood over to 3 April 2017 for directions on evidence and a hearing date with costs reserved. On 21 March 2017 a Notice of Appointment of Change of Solicitor was recorded on JusticeLink. 2. On 3 April 2017, the matter was given a hearing date for three days and the parties were directed to attend a settlement conference on 25 September 2017. 3. However, on or about 26 September 2017, Messrs Drexler & Partners Litigation and Compensation Lawyers received instructions to act for the plaintiff and to take over conduct of the proceedings. The reason for this was that Mr Jason Di Michiel withdrew from acting on behalf of the plaintiff by reason of the circumstances and involvement of his father, Dr Peter Di Michiel. Dr Thornton of counsel was briefed urgently on 28 September 2017 and, according to the affidavit of John Purkiss, solicitor, of 26 October 2017 they discovered the matter was listed for hearing on 1 November 2017. The matter was listed before the List Judge on 4 October 2017 to determine if the matter was ready for hearing by reason of the late withdrawal of Mr Jason Di Michiel. Mr Purkiss advised the List Judge that the court would need to extend the settlement conference but that it would be possible for the hearing to continue on the agreed date. 4. It would appear that, in the interim, a report of Dr Andrew Macintosh was served by the defendant on 8 September 2017. Objection was successfully taken to this report by the plaintiff's legal representatives in a separate hearing on 26 October 2017. However, the defendant was granted leave to amend the Defence to deny that the plaintiff was present at the scene of the accident. 5. The state of the proceedings on both sides at this stage was, despite the best efforts of the plaintiff's current solicitors and the defendant's legal representatives, fatally flawed by reason of the unsatisfactory prior conduct of these proceedings on behalf of the plaintiff. As a result of the hearing before the List Judge on 26 October 2017, the new representatives of the plaintiff realised they were in an impossible position in terms of conducting the proceedings by reason of the lack of evidence and the lack of merit of the case. They advised their client accordingly and, on the first day of the hearing before me, Dr Thornton and those instructing him made an application to the court for leave to withdraw from acting on behalf of the plaintiff in these proceedings. The relevant provisions for withdrawal by a legal practitioner on the day of the hearing 1. Rule 7.29 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides: "7.29 Withdrawal of solicitor (1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties. (2) Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change: (a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or (b) in any other case, at least 7 days before doing so. (3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected. (4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor." 1. This is not a case falling within the usual parameters for the granting of such leave, which includes a client giving instructions of an improper nature, ill-health of the legal practitioner, failure to provide money for costs or disbursements or termination of the retainer by the plaintiff. The plaintiff asked the court to direct her solicitors to act for her, saying she was incapable of conducting the case by herself. 2. The making of an order for a solicitor and/or barrister to continue to represent a client imposes a heavy burden upon that legal practitioner and client. Where leave is refused, it is axiomatic that the solicitor must continue to act in the proceedings: Cha v Oh (No. 21) (2009) 9 DCLR (NSW) 67. 3. The legal representatives of the plaintiff were in a difficult position. They had accepted at comparatively short notice to act for the plaintiff in a claim which had already had a hearing date and medical reports but where the true nature of the case became apparent to them only after a comprehensive reading of that material and the documents under subpoena. By that stage, however, it was too late to withdraw. Had the plaintiff withdrawn when given the opportunity to do so when the matter was first listed before the List Judge, there would have been costs penalties but the plaintiff could have done so. The difficulty was that this did not occur. 4. Having accepted that their obligations were to continue to act for the plaintiff, Dr Thornton and the solicitors instructing him thereafter discharged that duty to a very high standard. Dr Thornton, in particular, was meticulous in attending to not only the obligations he had to his client but his obligations to his opponents and to the court. The preparation of the case prior to commencement of proceedings 1. The statement of claim and the statement of particulars were not filed until 1 July 2016. Prior to that occurring, s 85A Motor Accidents Compensation Act 1999 (NSW) particulars had to be provided to the insurer. This was done by a junior employee of Premier Compensation Lawyers, Mr Mark Meoni who told the court he had commenced employment in July 2015, about two weeks before the plaintiff first consulted this firm (T 223; see also his evidence in Homsi v Nabulsi [2017] NSWDC 16 as set out at [13]). As noted in Mahony SC DCJ's judgment at [13], the plaintiff had first consulted Mr Jason Di Michiel about her previous claim on 13 September 2013 and there was a sorry history of neglect of that claim until at least the time Mr Meoni took carriage of both the claim the subject of these proceedings and her previous claim, the limitation period for which was about to expire (on 31 August 2015, as Mahoney SC DCJ noted at [3]). 2. As Mr Meoni's experience in personal injury was limited, a lawyer who was supervising him was present for part of the July 2015 conference (T 223) and all of the documentation was subsequently to be checked by Mr Jason Di Michiel. 3. The plaintiff gave evidence that when she filled out the claim form she was interviewed by Mr Di Michiel. However, Mr Meoni gave evidence in the proceedings before Mahony SC DCJ that he had assumed carriage of these proceedings in 2015 and identified the handwriting as his own. He had assumed carriage for both proceedings from July 2015 onwards: "Q. So did you have anything to do with that claim? Nothing at all, I gather. A. The, the - that's the 2012 accident, yes, I believe there was a section 109 motion at some point. I was subpoenaed to give evidence and then told the day before not to, not to attend and I didn't attend and I'm not sure what happened with those proceedings. Q. But did you play any part in the plaintiff's claim in those proceedings? A. I helped Jason with it as well. It was already on foot by the time I'd started at Premier Lawyers." (T 226) 1. Mr Meoni said that Mr Di Michiel said hello to the clients and introduced them to him and that he departed thereafter. This means that the plaintiff's evidence is wrong. 2. However, I am satisfied it is not untruthful, but represents what the plaintiff thought was happening. Given the history of the plaintiff's interaction with Mr Jason Di Michiel from 13 September 2013 onwards and Mr Meoni's obvious youth and inexperience when she first met him (in that he had been employed at the firm for about two weeks), this evidence is, while incorrect, one of several indications of the plaintiff's lack of understanding as to what was happening with her claims. 3. The first difficulty that Mr Meoni faced, when preparing the claim form that the plaintiff signed on 23 June 2015, was that there was no medical evidence in the form of a report. The plaintiff had not even seen a treating doctor. A young woman of limited education, she was in no position to give reliable description of her injuries and disabilities. Nevertheless, a form was lodged with the insurer on 6 August 2015 (see the first page of Exhibit D) which identified the plaintiff's medical practitioner (in answer to question 23) as: "GP Dr Peter Di Michiel 400 Beresford Rd Strathfield" (Exhibit D, p. 8) 1. However, the plaintiff had signed the form (on 23 June 2015), whereas Dr Di Michiel filled out the medical certificate on the insurance form, stating that he had seen her on 29 July 2015 (in other words, more than a month after the plaintiff had completed the claim form). How could this occur? How could Dr Di Michiel be nominated as the plaintiff's treating doctor as at 23 June 2015 unless he had already seen her prior to that date? What am I to make of the plaintiff's evidence that she never saw Dr Di Michiel, in a doctors' surgery in Strathfield or indeed anywhere else, at all? 2. The plaintiff said: "Q. You see, "What treatment, support or other services have you received for your injuries?" and you see, "GP Dr Peter Di Michiel," right? A. Yes. Q. Is that correct? A. No, I haven't seen him as a GP. Q. Had you seen him at the time of signing that statement? A. I signed the statement, yes, but I've never gotten examine, examined from his father or anything. Q. Wait a minute, but you signed this as being correct. A. Well, I've never seen this page. Q. You've never seen that page? A. No. Q. Are you saying that that page was not amongst the pages you signed? A. Yeah, I've never seen, I've never seen Dr Di Michiel for, for what's written here, no. Q. You've never seen him? A. No. I don't even know what his father looks like. Q. Go to page 11 of 11, that's the next page after your signature. A. Is that the last page? Q. Yes. A. Yeah. Q. You see there there's the certificate A. Yep. Yep. Q. which says he did examine you. A. No." (T 39) 1. There can be no doubt that, if the plaintiff did sign the form on 23 June 2015 and Dr Di Michiel did not fill out the form until 23 July 2015, this must be correct. 2. The diagnosis given by Dr Di Michiel for the purposes of this claim form was as follows: 1. Whiplash injury; 2. Head injury; 3. Lower back injury; 4. Left shoulder injury. 1. Dr Di Michiel ticked the box for consistency with description of the patient's cause of injury as a "yes" and ticked the box for medical health or injury history affecting management of the patient's injury as a "no". He described her treatment as "short to medium term neck, low back, [illegible], shoulder physiotherapy". 2. The second difficulty with this evidence is that, as is set out in more detail below, although Dr Di Michiel was still in possession of a Medicare provider number, namely 0030497J, he was no longer in practice and had retired. The address given for his practice of 40D Beresford Rd, Strathfield was not an address from which he was practising; nor did he see the plaintiff at that address. No Medicare charge was made by him for this service; according to the evidence of Mr Jason Di Michiel, Dr Di Michiel was paid a fee of $100 to provide a medical certificate, which would not be a treating doctor Medicare expense. 3. Mr Meoni said that Dr Michiel came to the offices of Premier Compensation Lawyers which were managed by his son, Jason Di Michiel, about once a month for the purpose of providing these certificates, and used the boardroom for the purpose of seeing those of the firm's clients who required such a certificate. Mr Meoni described this as a regular monthly occurrence, and that medical certificates were provided by Dr Di Michiel for clients of the firm upon request: "Q. Do you recollect Dr Di Michiel coming to Premier Lawyers? A. Yes. So after I started I obviously noticed that once a month Dr Di Michiel would have a - like an arranged appointment schedule for in our boardroom and would see numerous clients back to back to back throughout the day, depending on new files that required a medical certificate. Q. Were there occasions when Dr Di Michiel issued medical certificates when there was no face to face medical examination? HER HONOUR Q. To your knowledge. THORNTON Q. To your knowledge? A. So I heard things around the office of that nature. I'm not aware of a specific incident where that happened but I did hear that it had happened but I couldn't tell you about a direct matter where it happened. I simply heard it around the office that it - it did happen from time to time." (T 224-225) 1. This was essentially the evidence of Mr Jason Di Michiel as well. The documents produced by Jason Di Michiel include an office diary which noted Dr Di Michiel would be in the office on a particular day. 2. The third problem is whether the plaintiff was seen by Dr Di Michiel at all. She was adamant that she had never been examined by him. 3. According to Premier Compensation's word diary entries, on the two days in question, Dr Di Michiel is recorded as coming to the office on a day when the plaintiff had an appointment, on one occasion with other members of her family making claims. The names of other firm clients who were coming for the stated purpose (in the diary) of seeing Dr Di Michiel also appear. 4. In addition, in support of the evidence of Mr Meoni that this was a regular practice in the firm, the defendant tendered other claim forms signed by Dr Di Michiel with this same inaccurate address in Strathfield (see Exhibits 5 – 10) and irregularly dated medical certificates (in terms of when the claims were completed). 5. Mr Meoni was asked how he could have processed the claim form which included Dr Di Michiel's certificate in circumstances where the plaintiff effectively had no doctor of her own: "Q. May I show you the claim form? Now, you will see under, "Treating Doctors," you know that section, Dr Di Michiel is mentioned. You then go to the, "Attestation" section where the claimant signs the document, you see it bears a date. Then you've got the medical certificate and the medical certificate says the first consultation postdates the signing of the document which inter alia states that Dr Di Michiel was a treating doctor. That's of course a temporal impossibility, isn't it, because-- HER HONOUR: Well, look, he knows that but the thing is, what is your question? RENSHAW Q. So how does that come about as - is that something that you did off your bat or how did it come about that such an error was inserted in the document? A. So with this kind of error, which I can - I do admit is an error, as Dr Di Michiel was in our office once a month. At the time of filling this out, that would have been incorrect and at the time of getting instructions we would have arranged for the client to see Dr Di Michiel on his next attendance at our office, which would have been the 29 July date that appears on the medical certificate. Q. What I'm getting at is, did you do that off your own bat or were you instructed by someone to do it? A. I think I was instructed by somebody, I couldn't say who that was, if it was the person who's supervising while in the conference or if it was Mr Di Michiel. Obviously I didn't know Dr Peter Di Michiel before commencing employment there so-- Q. Did it puzzle you at the time that you were inserting something that was impossible or did you not turn your mind to it? A. I can't recall. Q. Now, did you have an unrestricted practicing certificate at the time? A. No. Q. So you were still under the supervision of someone else, were you? A. Yes. Q. Who was that? A. Mr Jason Di Michiel. Q. He was responsible for your work, was he? A. Yes. We had a tray, I would draft things and he would take a red pen to them and--" (T 226-227) 1. Mr Meoni described how he later drafted the s 85A particulars, a year later, without the benefit of any additional medical information other than Dr Giblin's medico-legal report of 14 March 2016: "Q. Were you responsible in these proceedings for drafting the section 85A particulars? A. Yes. So as I was a junior, I would draft the various documents that were required from time to time and then place them in a tray for Jason to review. Q. That's Mr Di Michiel? A. Yes, for Mr Di Michiel to review prior to then being filed or served. Q. These section 85A particulars that I have located on the Premier file dated 17 June 2016, can I show you this document, please? Just carefully read it. A. I'm familiar with the document. Q. Do you recollect that document? A. Yes. Q. I see that there is an extraordinary amount of future treatment on the 85A particulars. A. Yes. Q. Now, the only reports that the previous solicitors were relying upon was Dr Giblin, who made no recommendation for future treatment. Can you explain where those figures came from? A. So, when I was taught by Jason how to do particulars-- Q. Mr Di Michiel. A. Mr Di Michiel, sorry - to do particulars, he gave me a few examples of what he would regularly put into a claim, especially if a doctor did not comment on or was quite vague in relation to treatment and regular things were, as is indicated in this document, analgesic medication, attendance on a general practitioner, physical therapists and things like that and gym programs and things that were of a general nature to assist people usually with soft tissue injuries. I can see that they, they appear at paragraph 5.2 and they were regular things that he would advise to put in as just general things to put in. Q. So Mr Di Michiel recommended but there was no actually specific evidence to support those claims, is that correct? A. So the, the-- Q. There was no medical reports. This was a template, is that correct? A. Yes, so obviously amendments were made on a case by case basis if doctors commented on specific things. I'm quite familiar with Dr Giblin's reports and he quite often doesn't give a very good explanation for treatment so we would, I suppose, we would improvise and put in some general items that may be required." (T 224) 1. Mr Meoni said in examination and again in cross-examination that he set out all this information at the request of Mr Di Michiel, which he completed under supervision, but that was all he did. In particular, he never discussed the viability of the plaintiff's claim with her: "Q. Now, you would be aware that a client had to be fully advised as to their prospect of success at the time of-- A. Yes. Q. --instituting proceedings? A. Yes. Q. The matter could be initially investigated to see if the claim was viable. Were you or were you not told not to discuss the viability of a claim with a prospective client? A. We were quite definitively told by Mr Di Michiel that the - we had - not to discuss it because we - you would always be able to get something out of a claim regardless of the prospects of success and not to discuss it. He said all we needed was instructions that the client was injured, the medical certificate from a treating doctor and medicolegal evidence so he would - we would never discuss that with a client, no. Q. Do you have any specific recollection of this claim or not? A. I do. Q. Well, was, in your view, this claim a viable claim? A. With the benefit of hindsight, no. Q. Had you been advising the client in your own right, would you have advised them to commence proceedings? A. Probably not. Q. You realise that as a consequence of the steps taken in this Court, the client is left open to a costs order? A. I am aware of that now. Q. You are also aware, are you, that this has happened in other cases? A. Yes. Q. Now, going back to this discussion about that all claims have prospects. Could you tell the Court what you understood that to mean? That you'd bring any claim regardless of its merits, is that what you're saying? A. I think so and never to withdraw a claim, never to - always just to stay in a claim until you, you, you got some compensation for the client. Never to withdraw, never to pull a claim, never to discontinue." (T 228) 1. Similar evidence was given by Mr Christopher Long (T 230ff). 2. The evidence of Mr Meoni and Mr Long explains how it is that the particulars were prepared without the benefit of any medical evidence being available. All of the medical evidence including the certificate from Dr Di Michiel was prepared after the instructions giving rise to these particulars were provided. 3. Two expert reports were prepared for the plaintiff, namely an occupational therapist report and a report from Dr Peter Giblin. These reports suffer from further difficulties. Both these reports were prepared not only in relation to the plaintiff's injuries of 2 June 2016 but in relation to an earlier accident on 31 August 2012 and both reports fail to distil either the accident or the plaintiff's subsequent medical treatment with any care (the occupational therapist just refers to Dr Di Michiel). Both simply divide the plaintiff's needs equally between the accidents. 4. Before dealing with the portions of those reports relating to this claim, I must first set out the circumstances in which the plaintiff's claim for damages for the 2012 accident were dismissed by this court earlier this year. Homsi v Nabulsi [2017] NSWDC 16 1. As is set out in Homsi v Nabulsi [2017] NSWDC 16 at [3]-[8], the plaintiff brought a claim for damages for the injuries she received in an accident on 31 August 2012 following which, about twelve months later, she consulted Mr Jason Di Michiel to act on her behalf. He appears to have done nothing during that time; it was only after the plaintiff suffered the accident the subject of these proceedings, she signed claim forms for both accidents and both claim forms were served. 2. As the claim in relation to the 2012 accident was out of time, a s 81 notice was issued by the insurer and the plaintiff's late explanation was rejected. The plaintiff accordingly brought an application under s 109 of the Motor Accidents Compensation Act 1999 (NSW). The solicitor who gave evidence on the plaintiff's behalf in those proceedings was Mr Meoni, who told the court that he had assumed carriage of both proceedings in July 2015 (at [13]). Mr Meoni said the firm was unable to obtain the plaintiff's file from her previous solicitor until a complaint was made in January 2014 (Mr Meoni, it should be recalled, only commenced employment with Mr Di Michiel in June 2015). 3. The plaintiff gave evidence (at [27]-[35]) that she had never been given any advice about time limits for bringing the proceedings. As already noted, the plaintiff relied upon the reports of Dr Giblin and Ms Mullen. Inconsistencies noted in the plaintiff's explanation are discussed at [59]-[65]. 4. Mahony SC DCJ stated at [70]-[71]: "[70] The evidence here establishes a complete absence of diligence by the applicant's first solicitor in the prosecution of her claim and protection of the plaintiff's position. Once her present lawyers took over carriage of the matter from 13 September 2013, the evidence establishes a further lack of diligence by the plaintiff's solicitors. From the time they were first instructed, those solicitors had a period of almost two years in which to ensure that the procedural requirements of MACA were complied with, notwithstanding the late claim. The evidence establishes that it took those solicitors one year and nine months to serve a claim form and police report. To allow the time for bringing proceedings to expire, and to fail to properly advise the plaintiff in relation to that time limitation, was less than satisfactory [71] Fortunately for the plaintiff, the defendant's solicitors did not reject her late explanation notice within the time proscribed, and therefore the defendant was deemed to have accepted her late claim application on 23 November 2016. The plaintiff's solicitor made a frank admission that it was only when he received the defendant's second s 81 notice denying liability on 1 April 2016, that he turned his mind to the question of the proceedings being out of time. This demonstrated a complete lack of diligence on his part in protecting the plaintiff's position." 1. Mahony SC DCJ accepted the plaintiff's evidence as a satisfactory one (at [73]) but considered that, as her damages fell below the threshold, leave from the court for the plaintiff to commence proceedings should not be granted (at [83]; see also [84]-[85]). Consequently, although the plaintiff provided a full and satisfactory explanation for the delay, she could not satisfy the damages threshold. On that basis it was mandatory that the court not exercise its discretion to grant the relief sought (at [88]) and the plaintiff's summons was dismissed. The plaintiff's medical evidence in these proceedings 1. According to the statement of particulars the plaintiff relied on an expert occupational therapist report dated 9 March 2016 and the report of Dr Giblin dated 14 March 2016. No mention was made of Dr Di Michiel's statements in the medical certificate provided with the claim form. However, since this is the sole source of medical information for the occupational therapist report, I should set out what little information I have from Dr Di Michael about whether the evidence of Me Meoni and Mr Long about the circumstances in which Dr Di Michiel's report was prepared is correct. Dr Di Michiel 1. Dr Di Michiel was under subpoena but, given the state of his health as set out in a letter from his surgeon dated 13 October 2017, I was satisfied that he was too ill to attend. However, his cross-examination in other proceedings on 18 July 2017 was tendered without objection (Exhibit 5). 2. In that cross-examination, Dr Di Michiel agreed that he attended "a room in the same complex" as his son's legal firm, on an "irregular basis" when requested, for the purpose of preparing medical certificates of the kind given to the plaintiff in these proceedings (Exhibit 5, p 138 – 9) although some of these were pre-prepared and included computer-generated typing and had been prepared before his visit to their office (Exhibit 5, p. 142). He said he did so where a plaintiff did not have a doctor or the doctor had refused to provide a medical certificate. 3. I note that neither of these circumstances applied in the present case. While the plaintiff may have only seen her general practitioner once, she had seen him on 30 May, less than a month before she went to the office of Mr Jason Di Michiel, where she was already a client and had a treatment history and medical reports being prepared in relation to two prior motor vehicle accident claims. 4. Dr Di Michiel told the court in the proceedings for which the transcript was tendered (a claim brought by a Mr Dorrah) that he had retired in January 2015 but that he was still able to perform medico-legal work and came to his son's office, where he was given an office with simply furniture and no computer, with "basic GP tools" for this purpose (Exhibit 5, p. 149). He agreed that continuing to provide his former medical practice address "could be" (Exhibit 5, p. 143) misleading in the sense that it could imply that he had provided medical services. He claimed that a standard question would be an inquiry as to the plaintiff's history because "it may have a bearing on the current condition" (Exhibit 5, p. 143) but there is no evidence before the court, in the form of information provided to Dr Di Michiel or notes taken by him, to indicate that this was the case. The occupational therapist's report 1. The only medical evidence the occupational therapist was provided with in relation to the second accident (the subject of this claim) was a medical certificate provided by Dr Di Michiel (see paragraph 1.2 of the report of Susie Mullen dated 1 March 2016). 2. Ms Mullen assessed the plaintiff's current disabilities and, without explaining why, simply divided the estimates of time for each of the accidents in two, contributing 50% of the plaintiff's injury to the accident the subject of these proceedings. There is no exposition of the reasons for such a division and only the most cursory explanation as to why any injury suffered by the plaintiff from this second accident resulted in her being unable to perform the tasks she said she could not do. 3. Ms Mullens' statement that the plaintiff consulted her general practitioner, Dr Koleda, but stopped doing so because he prescribed medication she did not want to take, is either inaccurate or untruthful. Dr Koleda's reports are before the court (Exhibit 2) and they reveal that the plaintiff only consulted him on 18 July 2014, almost a year after the 2013 accident, and that at her request he wrote a letter about this on 1 September 2014. He never saw her about the accident the subject of these proceedings. 4. The plaintiff said in her evidence that she went to the emergency department of the local hospital but left because of the queue, and consulted another general practitioner, Dr Eftekar, two days later, on 30 May 2015. According to Dr Eftekar's notes, he gave her a prescription for Panadeine Forte and a referral for an X-ray but never heard from her again until 20 July 2017. His entry for the reasons for her consultation that day sets out that she has had pins and needles in her arm for "a few months" as well as back pain and then states: "## [sic] returned after 2 years and trying to [e]stablish that the problem is due to car accident." (Exhibit B) 1. Dr Eftekar again provided a referral for an X-ray and a specialist appointment. It would appear that, like his previous referral in 2015, these have not been actioned. 2. The absence of other medical reports may well explain the prominence given by the occupational therapist to the diagnosis of Dr Di Michiel. 3. What little consultation the plaintiff has had with doctors has been completely misstated by the occupational therapist and reliance has been placed by her on a certificate from a doctor who, I am satisfied, would have failed to examine her in accordance with his obligations as a medical practitioner if he had indeed seen her in a legal office without taking a proper history (especially in light of her two previous motor vehicle accidents) and making recommendations to her for any ongoing treatment of the kind that, a year later, was claimed in the s 85A particulars. 4. Ms Mullens' failure to expose her reasoning process for dividing the costs in half, as well as the inaccuracies of fact in relation to the plaintiff's medical history and her uncritical acceptance of the plaintiff's account of her ongoing problems, mean that this report is without any evidentiary weight: Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Dr Peter Giblin 1. Dr Giblin's report refers to three accidents in 2009, 2012 and 2015. 2. His description of the plaintiff's injuries and disabilities in the 2015 accident is based upon a completely inaccurate version of these events where the plaintiff is described as being a driver wearing a seatbelt in a car that was a write-off (see page 2 of the report dated 14 March 2016, Exhibit A). He divides her injuries on the basis of his observations made in 2016 after both accidents, but without any exposition of his reasons for determining that he considers one part of her body as being affected by one particular accident and not the other. 3. Dr Giblin appears to have had access to some of the plaintiff's medical history, as he describes seeing "her GP's handwritten notes" which start 12 June 2009" and are "hard to decipher" (Exhibit A, p. 35). He notes that entry relates to a motor vehicle accident but does not appear to appreciate that there is no entry for the 2015 accident or information beyond the plaintiff's very general description of seeing her general practitioner once afterwards. 4. His observations about her ongoing medical management are misconceived in that the plaintiff in fact never had any medical treatment for ongoing injuries and disabilities for the accident the subject of this claim beyond her visit to her general practitioner two days later, as she herself acknowledged in the course of her evidence. He allocates symptoms to a particular accident without explanation, and then makes general observations about her current condition without indicating which of the three accidents is most to blame; the reader is left with a vague impression that he is claiming each contributed in a roughly equal way, but the reason for this is unexplained. As Dr Giblin's description of the accident the subject of this claim totally misstates the facts (in that it was a low impact rear end collision, not a crash resulting in the car being a write-off) this may be an explanation for his views as to the seriousness of the plaintiff's injuries. 5. This is a report prepared by a doctor who has not appreciated the contents of the Code of Conduct. The role of the expert witness is to assist the court, not to paper over the gaps of what was clearly grossly inadequate documentation. One example is the following statement concerning the absence of investigative reports: "Comments pertaining to surgical considerations are best predicated upon appropriate imaging studies and the clinical position at the time" (Exhibit A, p37). 1. Opinions of this sort are of no benefit whatsoever to a court endeavouring to determine ongoing disabilities and future medical treatment. 2. This errors of fact and lack of exposure of reasoning process must result in Dr Giblin's report having no evidentiary value whatsoever. The defendant's medical evidence 1. In a report dated 23 October 2015, Dr Alan Home considered that the plaintiff had suffered exacerbation of neck injury from her first 2009 accident (following which she had been taking analgesia) for "a matter of weeks" (Exhibit 1, p. 7). 2. The defendant's medical evidence deals at some length with the injuries the plaintiff suffered in the 2009 accident (for which she received compensation). Dr Matalani's report of 21 October 2010 describes this accident, in which the plaintiff was taken to hospital by ambulance, and her ongoing treatment, which included her referral to Dr Kanawati for physiotherapy (Exhibit 1, pp. 14 – 22), which continued after her 2014 accident (Exhibit 1, pp. 23 – 25). 3. The plaintiff made a claim for home assistance for the first of these accidents for nine hours a week (see the statement of particulars in proceedings 2012/97901) and it is clear that these injuries were of some significance. 4. However, while the plaintiff consulted doctors and sought pain medication following these two earlier accidents, the only occasion she consulted any doctor in relation to these proceedings was her consultation with Dr Eftekar two days later. She never returned to Dr Eftekar for follow up and only consulted him two years later, on 20 July 2017, in circumstances where Dr Eftekar's notes indicate her real purpose. She consulted no other medical practitioner during this period. If she sought or obtained medication for the symptoms arising from this accident, it was not from any medical practitioner as a result of a prescription. 5. This brings me to the plaintiff's evidence. The plaintiff's evidence in these proceedings 1. Although the plaintiff put on a brave face and answered questions as best as she could, she was clearly frightened about giving the wrong answer. She did not understand why she had lost in the proceedings before Mahony SC DCJ earlier this year, or why Mr Jason Di Michiel had ceased acting for her, or why her current solicitors brought an application to cease acting for her on the first day of the hearing, and she was very much on her guard. Some of the inconsistencies in her evidence (for example, her claim that she dealt with and gave instructions to Mr Di Michiel when she clearly was interviewed by Mr Meoni instead) need to be viewed carefully as resulting from reasons other than a willingness to lie or due to a poor memory. 2. The plaintiff lives with her father, for whom she is the carer, and additionally cares for her four children. She is separated from her husband. She has limited education and her life is essentially a struggle for financial survival. She manages on a carer's pension, with rental assistance (T 43). To a person for whom life was a struggle, Mr Di Michiel's statement that she could be paid compensation of around $30,000 for this accident would have been a fortune. 3. She described her injuries in the accident as hitting her head on the dashboard (T 31) and injuring her right shoulder. 4. She agreed that, apart from her visit to Dr Eftekhar (who "just checked" her and told her to continue to take the painkillers she was already taking) she had never seen a doctor about the injuries the subject of this claim: "Q. After you had seen Dr Efdakar, and as time progressed, did you have any other treatment? A. No. Q. So you never saw another doctor for a period of time. Is that correct? A. Yeah, probably. I just can't remember exactly, I'm not that good with dates, or if I saw I know I always see doctors if I've any problem, if I've got anything but I just don't know whether it's to relate to the accident or not." (T 25-26) 1. She went on to describe how, if she was in pain, she just took some of her mother's prescription painkiller, Panadeine Forte (T 26) and had never sought a prescription for herself. It is unclear how often that happens. Inconsistently, she also said that she obtains Panadeine Forte from Dr Koleda, although Dr Koleda's notes (Exhibit 2) show this is not the case. He has not prescribed any of the medications taken by the plaintiff, as she eventually acknowledged: "Q. Did Dr Koleda, according to you, prescribe medication for you? A. Yeah, I told you it's on the Q. Did he or not? A. Yes. Q. I put it to you that that's not correct, he never ever prescribed medication for you. A. I told you before that he would tell me he wants to give me Panadeine Forte and I, then I already had that, there's no need for him to prescribe. Q. You were never described anything by Dr Koleda, were you? A. Just Panadol, just told me those pain based kind of painkillers. Q. You were never prescribed in the sense that he wrote a prescription, were you? A. No. Q. Anything. In fact, after this accident, you saw him, what, once, twice? A. A few times, and I actually recently saw him around two weeks ago as well, and he prescribed for me as well painkillers then." (T 36) 1. The plaintiff was cross-examined about her accident in 2012 and to the claims she made in relation to her injuries and disabilities, including her asserted need for home help (T 36-38). She had physiotherapy for that accident, and her previous accident, but not for this accident. It is clear from the particulars provided, as well as from her evidence, that the previous accidents were the cause of her ongoing back and neck problems. 2. Before the accident, the plaintiff was already in need of help around the home, and had a cleaning woman come in to assist. However, that arrangement had since terminated. 3. Since the accident, the plaintiff said that she could not hold anything heavy (T 29) but that she still made the beds, did the laundry and performed cleaning tasks such as the vacuuming (T 30). She agreed that she had become the carer for her father in 2012 and performed cooking and caring services for him both since that time and after the accident the subject of these proceedings. 4. The plaintiff described how she went to Mr Di Michiel's office to bring a claim. She could not explain how it was that Dr Di Michiel had filled out a form setting out her injuries and disabilities and was emphatic that she had never been examined by him, either in her solicitor's office or in a medical practice in Strathfield. 5. The office records for Premier Compensation Lawyers show that Dr Di Michiel was in attendance on that day, as was the plaintiff. On the balance of probabilities, it is more likely than not that the plaintiff did in fact see him (I note she appears to have admitted to this to Dr Home in the course of her visit to him on 19 October 2015 – Exhibit 1 p. 3) but that she stated to Dr Home, as she did to the court, that she has had no other treatment for the injuries she suffered in this accident. 6. The plaintiff was cross-examined at some length and recalled to the witness box several times. Each time was clearly an ordeal for her. Her evidence about Dr Di Michiel needs to be seen in that light. 7. What this demonstrates to me is that the plaintiff is not a reliable witness, not because she is lying or exaggerating, but because she has been completely traumatised by the drawn-out process of losing her claim for damages in relation to the 2012 accident and by the changes of representation and difficulties in these proceedings. Accordingly, I do not propose to set out her evidence in any further detail, beyond noting that Mr Renshaw's fair but firm cross-examination elicited a series of admissions to the effect that, apart from a few days of discomfort, there has been nothing wrong with her. 8. There is one topic, however, about which I consider I should accept her evidence. The plaintiff and her former husband both gave evidence that she was indeed a passenger in the car. The defendant was called to give evidence and said that he did not see her. However, I accept the plaintiff's evidence that she remained in the car and left her husband to take the particulars. The defendant's ill health (he was going home with a stomach ailment) may have affected his observation powers in this regard. The assessment of the claim 1. The relevant heads of damage are as follows: 1. Non-economic loss; 2. Past and future loss of amenities; 3. Past and future out-of-pocket expenses; 4. Past and future economic loss. Non-economic loss 1. The plaintiff falls below that threshold and this is therefore nil. Past and future loss of amenities 1. The claim for past and future loss of amenities, the subject of the report by the occupational therapist, has been abandoned. Past and future out-of-pocket expenses 1. The past out-of-pocket expenses are agreed to be zero (T 35), in that the plaintiff never consulted any doctor on a treating basis apart from Dr Eftekar two days after the accident (and again on 20 July 2017, although that appears to have been on a medico-legal basis). Both those visits were paid for by Medicare and are not the subject of any claim. In any event, I have no information as to what those costs would be. 2. There is no claim for future out-of-pocket expenses. The plaintiff is not taking any medication. She has said that on occasion she obtains some medication from her mother but she has never had a prescription filled in the past and is unlikely to do so in the future. As noted above, she has not seen a doctor about her ongoing medical issues and she has no intention of doing so in the future. 3. I am not asked to give a buffer for either of these figures. Accordingly, no allowance should be made for either past or future out of pockets. Past and future economic loss 1. There is no claim for past or future economic loss, as the plaintiff is a carer for her father. She has continued to fulfil this role without difficulty. 2. Dr Thornton concedes that the total amount for which the defendant is liable is zero. 3. Can a judgment for the sum of zero be entered? There have been several judgments for this sum (both jury and non-jury) in Australia, the United Kingdom and Canada in defamation proceedings. This was the amount awarded in Dank v Nationwide News Pty Ltd [2016] NSWSC 295 when a plaintiff was unable to establish that his reputation suffered further harm by reason of the partial success of the defence of contextual justification. This is another form of derisory damages; in Spautz v Dempsey (Supreme Court of New South Wales, 29 April 1993), Young J awarded two cents damages although the smallest coin of the realm is five cents. 4. Zero damages have been awarded in other jurisdictions, principally as a form of minimum or derisory damages in defamation. In Broxton v McLelland (No 2) [1997] EMLR 157 the United Kingdom Court of Appeal (Staughton, Swinton Thomas and Judge LJJ), by majority, refused to set aside a verdict of $0 on the basis that it should be considered as a form of nominal damages. However, in Teskey v Toronto Transit Commission, 2003 CanLII 12871 (ON SC), Wilson J, set aside a jury verdict of $0, but this was on the basis that the nature of a claim for defamation is based upon the premise that some damage must be presumed (at [37]), which illustrates the danger when applying these principles to personal injury claims. 5. Although the awarding of zero damages may appear to be a contradiction in terms, it is appropriate in a case such as the present, where breach of duty of care is admitted but the plaintiff has not established any of the heads of damage. Accordingly, that is the sum for which judgment will be entered. Costs and other orders 1. Evidence in relation to issues concerning costs was called from the following witnesses (all solicitors who carried out work in the offices of Premier Compensation Lawyers), all of whom were under subpoena: 1. Jason Di Michiel; 2. Mark Meoni; and 3. Christopher Long. 1. Mr Di Michiel requested, and was granted, leave to be represented. 2. Some of that evidence is relevant to the facts of these proceedings and is set out above. Most of it is relevant to the question of whether any costs order should be made against the plaintiff and/or a third party, such as the firm of solicitors who represented her, or one or more solicitors acting on her behalf. 3. I do not propose to deal with any of these issues until I have given the parties and any third party who may wish to do so the opportunity to read this judgment. Costs have accordingly been reserved, with liberty to apply. Orders 1. Judgment for the plaintiff for $0. 2. Costs reserved with liberty to apply. ********** Amendments 21 December 2017 - Catchwords amended 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: 21 December 2017