District Court New South Wales Medium Neutral Citation: Hawchar bht Manal El Haj Dib v Diab; Dib v Diab [2018] NSWDC 219 Hearing dates: 26-28 February 2018; 1-3 March 2018; 5 March 2018;14-18 May 2018; 22 June 2018; 26 June 2018 Date of orders: 10 August 2018 Decision date: 10 August 2018 Jurisdiction: Civil Before: Dicker SC DCJ Decision: In the proceedings relating to Mrs El Haj Dib: (1) The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days; (2) The question of costs is reserved; (3) Liberty to apply in relation to the issue of the costs of the proceedings; (4) Exhibits to be retained until further order. In the proceedings relating to Manessa Hawchar: (1) The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days; (2) The question of costs is reserved; (3) Liberty to apply in relation to the issue of the costs of the proceedings; (4) Exhibits to be retained until further order. Catchwords: Torts – negligence – motor vehicle accident – circumstances of the collision – credibility issues – assessment of damages – past and future domestic assistance – potential loss of future earning capacity for a child Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Civil Liability Act 2002 (NSW) Cases Cited: Afoa v McBride [2017] NSWCA 323 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Curtis v Harden Shire Council [2014] NSWCA 314 El-Mohamad v Celenk [2017] NSWCA 242 Fabre v Arenales (1992) 27 NSWLR 437 Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 Mason v Demasi [2009] NSWCA 227 New South Wales v Moss (2000) 54 NSWLR 536 Newell v De Costi [2018] NSWCA 4 Sretenovic v Reed [2009] NSWCA 280 Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 Category: Principal judgment Parties: Manessa Hawchar by her Tutor Manal El Haj Dib (First Plaintiff) Manal El Haj Dib (Second Plaintiff) Bilal Diab (Defendant) AAI Limited t/as GIO (Second Defendant) (from commencement of hearing until 16 May 2018) Representation: Counsel: D Campbell SC and R Di Michiel (Plaintiffs) W Fitzsimmons (Defendant from 17 May 2018) (Second Defendant from commencement of hearing to 16 May 2018) Solicitors: Premier Compensation Lawyers (Plaintiffs) Defendant (in person from commencement of hearing until 16 May 2018, thereafter Curwoods Lawyers) Curwoods Lawyers (Second Defendant from commencement of hearing until 16 May 2018) File Number(s): 2015/002218632016/00194351 CONTENTS Paragraph Judgment 1 The pleadings 8 The plaintiffs' evidence Oral evidence of Mr N Mansour 16 Oral evidence of Mr Y Safi 41 Oral evidence of Mrs Manal El Haj Dib 56 Oral evidence of Ms Amne Dib 183 Credit findings in relation to Mrs Dib 219 Medical and other evidence for Mrs Dib 226 Motor accident Claim Form 227 Police report 231 Reports of Dr J Davis 232 Report of Dr M Gibson 242 Report of Dr M Hamad 249 Reports of Ms K Lethbridge 251 All Care Physiotherapy 254 West Hoxton Medical Centre notes 255 Radiological investigations 261 Reports of Dr Marsh, Occupational Physician 267 Medical and other evidence for Manessa Hawchar 272 Motor Accident Personal Injury Claim Form 274 Report to police 277 Medical reports Reports of Dr J Davis 278 Report of Dr R Gertler, psychiatrist. 286 Report of Dr F Wong 293 Report of Dr M Hamad 294 Liverpool Hospital records 295 West Hoxton Medical Centre records 296 Evidence for the defendant 299 The evidence of Mr Abboud 301 The defendant's medical evidence in relation to Mrs Dib Medical reports of Dr A Lowy 312 Report of Ms D Piebenga, occupational therapist 325 The defendant's medical evidence in relation to Manessa Hawchar 331 The submissions of the parties 349 Medical findings Findings in relation to the medical evidence concerning Manessa 352 Medical findings in relation to Mrs Dib 369 Did an accident occur on 26 August 2014 as claimed by the plaintiffs? 376 Duty of care and breach 383 Causation 390 Contributory negligence 395 Damages Introduction 396 Past out of pocket expenses 399 Future out-of-pocket expenses 402 Past loss of earning capacity 406 Future loss of earning capacity 407 Domestic assistance 419 Disposition 430 Judgment 1. These proceedings relate to two claims for damages for negligence made under the Motor Accidents Compensation Act 1999 (NSW) ("the Act") concerning injuries alleged to have been suffered by the plaintiffs as a result of a motor vehicle accident on 26 August 2014 being: 1. A claim by a seven year old child, Manessa Hawchar by her tutor Manal El Haj Dib, being matter number 15/221863; and 2. A claim by Manessa Hawchar's mother, Manal El Haj Dib, being matter number 2016/194351. 1. An order was made at the commencement of the final hearing that evidence in one proceedings would be evidence in the other proceedings. 2. As stated, the plaintiffs allege that they were injured in a motor vehicle accident which occurred on 26 August 2014. At that time, it is alleged both Manessa Hawchar and Mrs El Haj Dib (Mrs Dib) were travelling in a Volkswagen Beetle sedan driven by the father of Manessa and the husband of Mrs Dib, Mr Bilal Diab, along the Hume Highway near Warwick Farm in Sydney in New South Wales. It is alleged that it was raining at the time. It is further alleged that the vehicle in front braked and Mr Diab negligently failed to stop his vehicle in time, with the result that it collided with the rear of the vehicle ahead. 3. The plaintiffs allege that they suffered a number of injuries and continuing disabilities as a result of the accident. In particular, Mrs Dib claims that she suffers from continuing and debilitating serious pain. At the time of the accident, Mrs Dib was not in employment. There is no claim by her for loss of wages or loss of future earning capacity. Neither plaintiff claims to have suffered non-economic loss which satisfies the impairment threshold of greater than 10% which allows for an award of damages for non-economic loss under s 131 of the Act. 4. In 2016, orders were made by the court joining AAI Ltd, trading as GIO, as the second defendant in both proceedings under s 119 of the Act. The second defendant, in substance, denied that either plaintiff was travelling in the Volkswagen motor vehicle at the time of any collision and also denied that it was roadworthy at the time. In essence, it alleged that the accident was fabricated to the extent it was alleged that the plaintiffs were in the car. 5. On the ninth day of the hearing, the second defendant withdrew those positive denials. The plaintiffs then made an application to revoke the leave granted under s 119 of the Act in 2016 which, after a contested hearing, was successful. The only defendant in the proceedings was then Mr Diab. Defences were then filed with leave for Mr Diab which put the circumstances of the accident in issue and denied that the plaintiffs had suffered any injuries in the accident entitling them to any relief as sought. 6. Accordingly, the issues raised for consideration by the proceedings are as follows: 1. Was either plaintiff involved in a motor vehicle accident as alleged as a passenger in the Volkswagen Beetle on 26 August 2014? 2. If so, did the defendant breach his duty of care which he owed to each plaintiff? 3. If so, was either plaintiff injured as a result of the accident? 4. If so, what is the extent of those injuries and what damages, if any, should be awarded to the plaintiffs under the Act. The pleadings 1. The pleadings are very similar in both proceedings. 2. In Manessa Hawchar's ("Manessa") proceedings, a Further Amended Statement of Claim was filed on 17 May 2018. The Further Amended Statement of Claim, in substance, pleads as follows: 1. The defendant was at all material times the driver of a motor vehicle registered XXX17N; 2. On 26 August 2014, at approximately 5:30pm, the plaintiff Manessa was a passenger in the vehicle travelling on the Hume Highway; 3. The vehicle collided with the rear of another vehicle travelling immediately in front of it causing the plaintiff Manessa to suffer injury; 4. The injury was caused by the negligence of her father, Mr Diab the defendant, by inter alia, failing to keep a proper lookout, failing to travel behind the vehicle in front at a safe distance and failing to brake, steer or otherwise manage the defendant's vehicle to avoid the collision. 1. A Statement of Particulars filed on 25 January 2018 pleads that Manessa suffered psychological/psychiatric injuries, injuries to the left shoulder, right and left legs, back, urinary incontinence and trauma to the "upper right facet articulation" with related continuing disabilities. 2. A claim is made for past and future out-of-pocket expenses, future domestic assistance and an alleged loss of future earning capacity on a buffer basis. 3. In his Defence, filed on 17 May 2018, the defendant: 1. Does not admit that Mr Diab was at all relevant times the driver of motor vehicle registered XXX17N; 2. Does not admit that Manessa was a passenger in the Volkswagen Beetle travelling on the Hume Highway, Warwick Farm; 3. Does not admit the circumstances of the collision as alleged and denies Manessa suffered injury as alleged; 4. Denies that any injury was caused by the negligence of her father, Mr Diab; 5. Denies that the plaintiff Manessa is entitled to the relief sought. 1. There are very similar pleadings in the other matter. Mrs Dib's Further Amended Statement of Claim was filed on 17 May 2018 and alleges injury in the same accident with similar particulars of negligence. Much more significant particulars of injuries and continuing disabilities are set out in a Statement of Particulars filed on 25 January 2018. 2. Although no claim for non-economic loss or past or future loss of wages or earning capacity is made, there are considerable claims for past out of pocket expenses, future out of pocket expenses and past and future domestic assistance, including commercial assistance. 3. A Defence was filed by the second defendant dated 17 May 2018. Again, it is similar to the Defence in Manessa's proceedings. The plaintiffs' evidence Oral evidence of Mr N Mansour 1. Oral evidence was given in the proceedings by Mr Nehmeh Mansour. Mr Mansour was allegedly the driver of the motor vehicle into which Mr Diab's motor vehicle collided at the time of the accident in question in the proceedings. 2. Mr Mansour gave evidence that his place of employment is in Liverpool. He gave evidence that his usual hours of work are between 7:30am and 5:30pm on weekdays and that for the purposes of his employment he was provided with a company car which he drove to work from his place of residence. Mr Mansour stated that in 2014 he had a Hyundai station wagon. He said its registration number was XXX0 JA. 3. Mr Mansour stated that his usual route from his place of employment to home was either on the Hume or Cumberland Highways. He stated that near Warwick Farm was a substantial intersection between the Hume Highway and Governor Macquarie Drive where some lanes continued and at least one lane turned to the right. Mr Mansour was then asked about the accident. 4. Mr Mansour said that as he approached the intersection he was travelling either in the left lane or the middle lane on a date in August 2014 at about 5:30pm. He did not recall the precise day in August: T25. Mr Mansour said he had just passed the Warwick Farm train station and there was a traffic light at the intersection which was red. He said he stopped at the light and was the last car in the lane. He said he was hit from behind by a Volkswagen Beetle. He described being: "bumped a little bit forward": T25.36. 5. Mr Mansour said that his recollection was that he pulled his vehicle to the side of the road and exchanged details in a conversation with the driver of the vehicle which collided with him. Mr Mansour said he did not recall the details which were exchanged but merely that an exchange of details occurred: T26.48. He said his car was damaged on the back and the Volkswagen Beetle was either white or silver in colour: T27. He said he did not recall the number-plate of the vehicle but believed he recorded it. He was asked what observations he made in relation to the vehicle and he said that it was damaged at the front: T27.32. 6. Mr Mansour was asked whether other persons were present. He said that there was a lady present and he thought there was a child but he could not recall that for certain: T27.44. He said that the lady was standing next to the male driver when he exchanged details with them: T27.46. This is inconsistent with evidence later given by Mrs Dib. 7. Mr Mansour said he had not met either the man or the lady before and he had not had any contact with the driver since: T28. He agreed that in relation to investigations since, he had been contacted and someone had attended at his office to discuss the accident. Mr Mansour said he lodged a claim in order to get his car fixed and this was attended to by the insurance company. He said he was given a car by the repairer to drive until his car was fixed: T28.33. 8. Mr Mansour said a tow truck with its driver attended the scene of the accident: T28.37. He said he could not recall the name of the tow truck driver. He said the police did not attend. In answer to the question whether he reported the matter to police, Mr Mansour said that he was told by the tow truck driver that there was no need to report the matter to police if neither car needed to be towed: T29.2. 9. When Mr Mansour was asked whether he recognised any of the persons from the day of the accident whilst at court he said that he believed that a man that he saw outside the court rang a bell in his recollection but he did not see the lady that he recalled: T29.11. 10. In cross-examination Mr Mansour confirmed that he had never met or seen the driver prior to the accident: T29.17. He confirmed his evidence that he did not know Mr Bilal Diab at the time of the accident and denied that he had been to an address in Austral and played cards with Mr Diab and others: T29.45. 11. Mr Mansour said that on the day of the accident he was coming from his work but he could not recall whether he was proceeding to Guildford or to Merrylands. He confirmed that it was on a weekday and that the accident occurred at about 5:30pm. He also confirmed that the road where the accident occurred was a very busy thoroughfare and that it was peak hour. He stated that it was a major intersection which he drove up to and stopped. He could not recall how many cars were in front of him to the stopping position at the lights but he stated that his was not the front car. On further questioning, Mr Mansour said that he could not recall which of the through lanes he was in and it could have been either the left (kerb) lane or the centre lane. He stated that he recalled pulling to the side of the road to exchange details with the driver of the car which had collided with his car. He agreed it was possible that he could have been in the kerb lane and stopped to exchange details. In order to do this he said that he stood on the kerb with the driver of the car. 12. When asked about the severity of the impact, Mr Mansour confirmed that to him it was a "fairly light" impact: T32.11. He said it may have pushed his car forward a little but the force of the collision did not propel his car to collide with the car in front. When asked whether the Volkswagen pulled to the kerb lane as well as his car, Mr Mansour said that from memory the Volkswagen moved to the kerb lane as well: T32.20. He said he could not be 100% certain that the Volkswagen had been driven again after the accident. 13. Mr Mansour agreed that the male driver got out and exchanged details with him and that a woman also got out of the car (T32.37) and she stood next to the male driver. He said that all present were standing on the kerb on the side of the road: T33.5. In his insurance claim form he stated that the wife of the driver at fault was in the car at the time of collision: Exhibit E. This supports the presence of Mrs Dib in the VW car at the time of the accident. 14. Mr Mansour confirmed his evidence in chief that he thought that a child was present but he could not recall 100%. He repeated that he thought there was a child present but he could not be 100% certain: T33.12. When it was put to him that he did not see a child at the accident, Mr Mansour said that he thought there was a child present but he could not recall to 100% certainty. Later, Mr Mansour said that he did not really remember this aspect but he thought there was a child present. He said he did not know if it was the child of the man and the lady. His best recollection was that the child was out of the car and was "walkable" but he did not recall the age of the child. Later, Mr Mansour said "I'm sure there was a child there" but then added that he was not 100% certain: T48-T49, especially at T49.18-.23. He said the child was a "younger child" but he could not recall whether it was a male or female. He noted that the area was a busy walkway and he could not be sure that the child was with the adults who had been in the car: T50.24. He denied that he was being deliberately vague in relation to the presence of a child and again stated: "I think there was a child there": T51.24. 15. Mr Mansour denied knowing that there was an issue of whether there was a child at the scene of the accident prior to giving evidence. He said he did not recall seeing a child seat in the car or looking around and seeing a child immediately after the collision. He said he did not look inside the car which collided with his car. Mr Mansour described the event as being "a small accident" which was not important in his life: T33.40. Mr Mansour said that he believed that he was present after the accident for about 10 minutes and then left the scene before the other driver and his car: T42.2. 16. Mr Mansour said that as far as he could recall he looked at the other driver's licence and was satisfied that he got his details and either recorded them on paper or took a phone photo of the other driver's licence. He confirmed that he did not contact the police as he did not think it was necessary. He said he understood that if either car had to be towed away then the matter had to be reported to police. He based this understanding on what he was told by the tow truck driver. Mr Mansour could not recall for what period of the 10 minutes the tow truck driver was at the scene of the accident: T42.34. 17. Mr Mansour was asked questions about the damage to the motor car which had collided with his vehicle. He gave evidence that the front of the other car was damaged but he was not able to give detail of that damage. 18. Mr Mansour was asked whether the other car hit a power pole and he said that it did not. He said he would have recalled if it had hit a pole. He said that he could not recall the impact of the accident being severe: T40.50-T41.18. 19. Mr Mansour was then asked questions about communications with Mr Diab after the accident. He agreed that his evidence in chief was that as far as he could recall he had no further contact with Mr Diab after the accident. He said this was the case unless he needed to contact him in relation to the insurance claim. He said he might have had to talk to Mr Diab in relation to the claim. He suggested that he might have needed certain details for the claim which he did not obtain immediately after the accident. He was asked whether he contacted Mr Diab on the day after the accident. He said he did not recall any contact and could not be 100% certain but he may have. He said this was the first accident he had been involved in (he later corrected that as being the first accident for a number of years). 20. It was then put to Mr Mansour that he communicated with Mr Diab on the evening of the day of the accident. Mr Mansour said he could not recall this but was not 100% sure. It was then put to Mr Mansour that: at 6:25pm he rang Mr Diab; Mr Diab then sent two texts to him; he then texted Mr Diab at 6:29pm and Mr Diab sent a third text to him also at 6:29pm. Mr Mansour said he did not recall this. However, he agreed that the only reason he had to contact Mr Diab was to obtain further details for insurance purposes. He could not recall when he made the insurance claim. He stated that his recollection was that when he left the scene of the accident he had all the details he needed but again said that he may have needed further details for the insurance claim. Mr Mansour said that he could not recall any of the alleged phone calls or text messages: T45.17. 21. It was then put to Mr Mansour that at 3:56pm on 27 August 2014 that he received a telephone call from Mr Diab and at 3:57pm he sent a text to Mr Diab. Mr Mansour said he did not recall these contacts but agreed that he could have. He said he did not recall what he would have been communicating with Mr Diab about. He said he did not recall any other contact with Mr Diab: T47. The defendant later relied on call records establishing that there was some telephone and text contact between Mr Diab and Mr Mansour on the evening of the day of the accident and the next day: Exhibit 3 pages 212-214. 22. Mr Mansour was then asked further questions about his evidence in chief that he recalled a woman standing with Mr Diab at the accident. It was put to him that there was no woman at the accident. He said that he definitely recalled a woman being at the scene of the accident and standing next to Mr Diab: T47.38. (This evidence is supported by Exhibit E). He also gave evidence that he definitely recalled a collision: T47.42. Mr Mansour said that he viewed it as "a minor accident" and did not report it to police. When asked why he regarded the accident as minor, he said this was because his vehicle had been "bumped forward" only a small amount of damage had been caused to his car and he was able to drive away from the accident. He agreed that there was damage to his bumper bar but he could not recall his boot being pushed in and he thought that it was not. 23. Later evidence confirmed Mr Mansour's oral evidence on this point. The defendant tendered records from the claim file of CGU which was Mr Mansour's insurer: see Exhibit 8. These show: 1. In an email from Mr Mansour to an insurance broker he described the accident as "a minor car accident"; 2. The total payable to the repairer to repair Mr Mansour's car was only $903.86. The only part replaced was the rear bumper bar. Painting was a significant part of the costs; 3. Photos of Mr Mansour's car are included which indicate very minor damage to his car. 1. Mr Mansour appeared to the Court to be an honest and straightforward witness who was doing his best to give his evidence truthfully to the extent of his recollection. Mr Mansour did not have a strong recollection of all aspects of the accident because he regarded it as a fairly minor one with limited damage to his vehicle and because he could drive away from the scene of the accident. He did not recall his post-accident contact with Mr Diab. 2. Mr Mansour's clear evidence was that he saw a woman stand by Mr Diab when their details were exchanged. He was considerably more vague about whether a child was also there. He believed a child was there, although he could not remember whether it was a boy or a girl. In relation to the evidence of a child being there, I think that his evidence is less reliable than his other evidence relating to the accident. Although there were minor differences between the evidence of Mr Mansour and later witnesses and he did not recall his post-accident contact with Mr Diab, I did not see these inconsistencies as significant or undermining Mr Mansour's general reliability in relation to issues concerning the accident (see the defendant's written submissions paragraphs 14-23). Oral evidence of Mr Y Safi 1. The plaintiffs called in their cases Mr Yehia Safi to give evidence. Mr Safi is married to the sister of the defendant, Mr Bilal Diab. 2. Mr Safi gave evidence that in 2014 he lived at Warwick Farm. He said he knew Mr Diab because he was married to his sister. He recalled that in 2014 he went to a place at the Hume Highway at Warwick Farm as a result of a telephone conversation with Mr Diab. 3. Mr Safi said that Mr Diab contacted him and said that he had had an accident and asked him to come to the accident scene. He said the scene of the accident was on the Hume Highway near a major car yard. Mr Safi said that when he arrived at the scene of the accident he saw Mr Diab's car and a truck was loading it: T66.19. He could not recall the type of truck. He said Mr Diab's car was a Volkswagen. He said the people at the scene of the accident consisted of Mr Diab, his wife Mrs Dib, their daughter and the owner of the other car: T66.30. Mr Safi gave evidence in chief that he took the Diab family to Mr Diab's house at Busby. It should be noted that Mr Safi's evidence that the owner of the other car was still at the scene of the accident whilst the VW Beetle was being loaded onto the tow truck is inconsistent with Mr Mansour's evidence. 4. Mr Safi was then cross-examined extensively in relation to his observations whilst at the scene of the accident and the circumstances which caused him to go to the scene of the accident. 5. Mr Safi said that he lived at Warwick Farm only a short distance away from the scene of the accident. He said he drove to the scene and the trip only took him a minute to one minute and a half: T67.39. He also stated that he left his home immediately after talking to Mr Diab on the phone: T67.45. 6. Mr Safi said that when he arrived, Mr Diab's car was on the side of the road near the footpath and was being loaded onto a truck: T68.7. After the loading of the truck was complete, he said that he took them to their home. Mr Safi also agreed that the owner of the other car apparently involved in the collision was there: T68.39. 7. Mr Safi gave evidence that he understood that Mr Diab was the owner of the Volkswagen. He said the basis for saying this was that the car was with him all the time and he was driving it: T69.45. He said he did not know if he in fact owned the car at the time. Mr Safi said that he spent "every night" with Mr Diab at the time as they used to play cards at a farm Mr Diab was renting at what he eventually said was XXX Avenue Austral: T70.13; T70.44. He was asked whether he remembered that Mr Diab had lots of cars stored at the farm and he said he did not recall this, whilst confirming that he knew Mr Diab very well at the time of the accident. He denied that he asked Mr Diab what he did for work: T71.19. He also denied that Mr Diab told him that he was buying cars which had been written off. He said he "did not interfere" with this: T71.24. 8. Mr Safi was asked questions about the other car involved in the accident which was not driven by Mr Diab. He confirmed that he saw the owner of the other car and that the other car was still there when he arrived. However, he could not recall the type of the car. He said that he was at the scene of the accident for somewhere between 10 minutes and half an hour: T71.48. During that time he did not notice the damage caused to the other car in the accident. In relation to Mr Diab's car, he said he only looked at it momentarily as it was raining. He said it appeared to be pushed in at the front: T75.4. 9. Mr Safi was asked whether he was sure that he saw Mrs Dib and her daughter at the scene of the accident and he confirmed that they were there: T75.11-.16. Mr Safi said he had no recollection of whether the traffic was heavy at the time merely that it was raining. 10. Mr Safi said that he then took Mr Diab, Mrs Dib and their daughter to the house at Busby. He could not recall how long it took him but he said the trip from his house to Mr Diab's house at Busby normally took between a quarter and half an hour if there was no traffic but up to 45 minutes if there was traffic: T76.39. 11. When asked when he attended the scene of the accident Mr Safi was vague and eventually said that he thought it was between 3:30pm and 4:30pm. He could not recall if it was during a weekday: T76.44. 12. It was then put to Mr Safi that the telephone records for Mr Diab's phone suggested that he telephoned Mr Safi at 5:51pm, not between 3:30pm and 4:30pm. Mr Safi said that all he could recall was that it was towards the time of sunset, it was raining and he believed it was daylight. He said that his evidence as to it being between 3:30pm and 4:30pm was an estimate: T77. 13. It was then put to Mr Safi that he called Mr Diab on his phone at 5:57pm. He said he did not remember this call: T77.42. The defendant tendered the telephone records of Mr Diab and Mr Safi which established that Mr Diab called Mr Safi at 5.51pm and Mr Safi telephoned Mr Diab at 5.57pm: Exhibit 3 pages 214-215. 14. Mr Safi is clearly close to the defendant, Mr Diab, as he is his brother-in-law and socialises with him. His clear evidence was that both Mrs Dib and her daughter Manessa were at the scene of the accident. His evidence was also that the owner of the other vehicle was there when he arrived and that Mr Diab's car was in the process of being loaded onto a truck. As to a number of aspects of what occurred, Mr Safi appeared to have difficulties with his memory and he had only a basic recollection of the relevant events. 15. I will consider his evidence further below. Oral evidence of Mrs Manal El Haj Dib 1. Oral evidence was given over several days by the plaintiff, Mrs Dib. 2. Mrs Dib gave evidence that she was born in June 1985 in Lebanon and resided in Lebanon until she migrated in July 2006 to Australia. Her evidence was that in November 2005 she married Bilal Diab, the defendant. Her evidence was that Mr Diab's surname was originally Hawchar and he changed his surname after he came to Australia with her. Mrs Dib said that they initially lived at another premises before moving into their house in Kilmorey Street in Busby in Sydney. 3. Mrs Dib said that from the time she moved into her house in October 2007 she attended the West Hoxton Medical Centre and saw Dr Hamad as her general practitioner: T80.27. Mrs Dib gave evidence that her daughter Manessa was born in November 2010 at Liverpool Hospital and that during the pregnancy she attended Liverpool Hospital for some issues. She also continued to see Dr Hamad as her general practitioner. 4. Mrs Dib gave evidence that she did not work prior to her daughter's birth and she did not work in employment after her daughter was born. 5. Mrs Dib said that she did not see doctors other than Dr Hamad: T81.18. She confirmed that when she saw him in consultations she told him the truth. She also confirmed that she took her daughter Manessa to see Dr Hamad when needed, although on one occasion she took her to Liverpool Hospital when she had asthma. 6. Mrs Dib denied that she had pain in her neck or back or left arm prior to the accident in August 2014: T81. Mrs Dib said that if she was prescribed medicine by Dr Hamad prior the accident she took the script to the local chemist near Dr Hamad's surgery in West Hoxton. She said she did not attend Dr Hamad much in the period October 2007 to July 2014: T82.17. 7. Mrs Dib gave evidence that in 2012 she and Mr Diab had personal differences which led to a separation: T82. Following that, Mr Diab continued to live at the house, with the parties being separated under the one roof, although he sometimes lived at his mother's house. Mrs Dib confirmed that she remains separated: T82.50. 8. Mrs Dib said that she lived at her house at Busby with Mr Diab, her daughter and her son who was born in March 2012. Mr Diab comes and goes in living at the house but she could not give the dates. Mrs Dib said that other relatives spent time with her at her house including her sister and her mother, who both lived fairly close by: T84. She said that they visited her "from time to time": T84.31. 9. Mrs Dib confirmed that the car in which she was travelling which was involved in the accident was a Volkswagen Beetle: T84. She said that she sometimes drove that car but could not recall when she first noticed it. She said that she never regarded the car as hers (T85.8) but that she saw her husband driving the car. She said she travelled in it as a passenger with Mr Diab driving. She said that she travelled in the car with him to take the children out for dinner, for lunch or to play. Sometimes both children were in the car and other times only one child was in the car. If a child was not in the car, that child was being looked after by her mother or mother-in-law: T85.36. 10. Mrs Dib gave evidence in relation to the car accident which she said occurred on 26 August 2014: T86-T91. She said that she could not recall whether it was a weekday or what day of the week the accident occurred. She said it happened between 5pm and 6pm. Mrs Dib said that she was sitting next to Mr Diab in the car and her daughter was also in the car: T86.47-T87.2. She said the accident occurred at Warwick Farm on the Hume Highway and a car yard could be seen from the passenger side window. Mrs Dib stated that they were travelling to get some food at KFC and it was raining. She said that they were proceeding forward and she felt her car "punch" the other car "in the back". She said that she heard a "boom" to the car: T88.11. Mrs Dib said her head "moved forward" and she could not recall whether she knocked her head and suffered a cut in her forehead: T88.23; T89.49. She said she recalled being taken out of the car and being helped by others and sitting on the footpath. She could not recall what happened to her daughter at this time: T88.40. She said that her daughter was in a baby seat in the back of the car but could not recall if the daughter got out of the seat. When asked how long she was sitting on the footpath, Mrs Dib said that she sat there until her brother-in-law came to take them. She said that she was not sure how long this took but eventually he came and took them to her house at Busby. 11. Mrs Dib said that she did not see the other driver, did not see police attend but did see a tow truck at the scene. She said she did not speak to the tow truck driver: T89.34-T89.45. This evidence is partly inconsistent with Mr Mansour's evidence. Mr Mansour states that the female adult passenger was standing next to them when he exchanged particulars with the other driver. 12. Mrs Dib said that night she noticed pain in her chest, shoulder, back and leg and that it was "hurting": T90.6. She said that when she got home she took Panadol. She said that she did not notice any problems with her daughter on the day of the accident: T90.17. 13. Mrs Dib said the next day she felt "very bad" with pain in her back, shoulder, neck and chest and was "very sore": T90.24. She said she attended the West Hoxton Medical Centre to see Dr Hamad two or three days after the accident. 14. Mrs Dib said that the day after the accident she did nothing around the house as she was sick. She said she asked her mother to come to her house and her mother looked after the children while she rested. She said that she was the same the second day after the accident: T91.16. 15. When Mrs Dib went to see Dr Hamad on the first occasion after the accident she could not recall whether she was alone or whether her sister was with her. She said Dr Hamad's surgery was about 10 minutes away from her house and she could not recall whether she drove to it. 16. On her first visit to Dr Hamad after the accident, the plaintiff said that she told him she had pain in her head, chest, shoulder, back and left leg. She said that all her body was "broken": T91.45. She said she told Dr Hamad that she had pain and that he examined her and gave her a prescription which she took to the chemist. She said she took the tablets prescribed for her. 17. She said that there was no change in how she felt (T92.40) and she continued to rest for the first week after the accident. She said she was helped in her domestic tasks by her husband, mother and sister: T92.48. 18. Mrs Dib confirmed that she went back to see Dr Hamad on 1 September 2014, about a week after the accident. She agreed that he referred her for x-rays and altered her prescription. Mrs Dib said that she attended at a place in Liverpool to have the x-rays. 19. Mrs Dib confirmed that she saw Dr Hamad on 5 September 2014 at which time the x-rays were discussed and she was prescribed further medicine for her pain. 20. Mrs Dib gave evidence that shortly after, she consulted a solicitor in relation to her rights concerning the accident. As a result, her solicitor assisted her in completing a Motor Accident Personal Injury Claim Form which she stated that she signed on 9 September 2014 (Exhibit A pages 1 to 11). Mrs Dib said the contents of that Claim Form were true. She also stated that she was sent by her solicitor to Dr Hamad to obtain a medical certificate to be attached to the Claim Form. She saw Dr Hamad, he examined her and he prescribed Panadeine Forte for her. She then stated that she returned the completed Claim Form to her solicitor (Exhibit A page 12). 21. Mrs Dib said that she understood the police were informed in relation to the accident but she was not sure by whom. 22. Mrs Dib was then taken by her senior counsel through various consultations from September 2014 with Dr Hamad. She agreed that Dr Hamad referred her for massage therapy which she understood was paid by Medicare. Dr Hamad also prescribed her various medicines for her pain including Endone. 23. At about this time, Mrs Dib said that Dr Hamad referred her to All Care Physiotherapy for physiotherapy services. Mrs Dib agreed that she first saw the physiotherapist at All Care Physiotherapy on 23 October 2014 (Exhibit A page 90). She stated that she told the physiotherapist what had happened to her and the body parts that were giving her pain. Mrs Dib also said that she told the physiotherapist about her limitations at home and in relation to her children. 24. Mrs Dib gave evidence that after the accident she was helped at home by her sister and her mother: T101.50. Her evidence was that they assisted her with everything around the house including cleaning and cooking. Prior to the accident she gave evidence that she did all domestic duties herself and she was not assisted at all by her sister or her mother. After the accident, her sister and her mother assisted her with cleaning the house, vacuuming, mopping, washing dishes, the laundry and cooking: T102.15. 25. The plaintiff gave the following evidence about the time spent by her prior to the accident in undertaking domestic duties: 1. The main meal of the day, which was Lebanese food, was prepared commencing at about 3pm. The plaintiff said that she spent about four hours work per week preparing the main evening meal: T103.6; 2. The plaintiff said that prior to the accident she spent about half an hour per day cleaning up the dishes in relation to the evening meal: T103.19; 3. The plaintiff said that she spent about three to four hours per week washing: T103.41; 4. The plaintiff said that prior to the accident she spent about two to four hours per week shopping and carrying the items home: T104.17; 5. The plaintiff gave evidence that prior to the accident she spent about four to five hours per week cleaning: T104.28; 6. At the time of the accident the plaintiff said her daughter was nearly four and her son was nearly three. She gave evidence she spent the substantial proportion of each day looking after her children: T105.6. 1. The plaintiff was then asked questions in relation to the period from the date of the accident, 26 August 2014, until 23 October 2014 when she attended her first physiotherapist appointment. In that period, the plaintiff stated that either her mother or her sister did all of the domestic tasks around the house as she was suffering from considerable pain: T105.15. She said she saw the physiotherapist on a number of occasions and obtained treatment including massaging but she stated the treatment did not assist her at all. The plaintiff gave evidence during this time that she continued to see Dr Hamad and take the medications which he prescribed. She said that the medications did not relieve pain or help her all the time. 2. The plaintiff gave evidence that in February 2015 Dr Hamad referred her to have further tests and she had a CT scan of the neck and back at Liverpool. 3. Mrs Dib's evidence was that in the period from October 2014 to February 2015 her condition became worse: T107.2. She said she did not feel any better despite the physiotherapy treatment, taking the medicine prescribed and the radiological investigations. She said her pain was "killing me": T107.9. 4. The plaintiff said that in this period her sister and mother continued to assist her with the children and the housework: T107. 5. In answer to questions from the court, the plaintiff said that her sister was married and had seven children aged between nine and 22 years. The plaintiff said that her sister came around for some time every day to her house to help her: T108.2. Her sister also sent some of her older children to help and sometimes her mother assisted. Every day someone came to help her. Her nieces and nephews stayed all day and sometimes her mother would come and do the domestic duties such as cooking, washing and cleaning and then go. The plaintiff said that the same amount of time was spent on domestic duties by her relatives in the period from October 2014 to February 2015 as had been provided in the earlier period immediately after the accident: T108.23. Mrs Dib claimed that she had no pain and had made no claims in relation to injuries before the accident. 6. Mrs Dib gave evidence that after the CT scan, Dr Hamad referred her for an MRI which she had at Liverpool. At about this time the plaintiff said she was prescribed Lovan by Dr Hamad for depression: T109.27. The plaintiff said she was depressed because of the pain from which she was suffering: T109.30. She said she was angry, could not put up with herself, was edgy and was crying. She said before the accident she did not suffer from any of these problems. She said she sometimes discussed her problems with her sister. 7. At about this time Dr Hamad referred Mrs Dib to Dr Mitri who assisted her with her depression. She said that she saw him on five or six occasions but stopped seeing him because her condition remained the same: T110.26. At this time the plaintiff said her pain was getting worse and the medicine was not giving her relief: T110.36. 8. Soon after, Dr Hamad prescribed her stronger medication and referred her for an injection to her shoulder: T111. At this time the plaintiff said she took her medicine and continued to take Dr Hamad's advice to rest, have deep heat massage and rub in an ointment. 9. The plaintiff gave evidence that she began to attend medico-legal appointments in 2015 in relation to the proceedings. She said she attended Dr John Davis in April 2015 where she answered all questions to him truthfully. She said she also saw an occupational therapist, Ms Lethbridge, at this time who made an assessment of her and asked many questions. It is noted that Ms Lethbridge's 4 May 2015 report states in paragraph 2.1 that only the plaintiff, Mrs Dib, participated in the assessment. The plaintiff is recorded as telling Ms Lethbridge that after the accident her sister came to her house each day to help her with domestic tasks such as cooking and the laundry: paragraph 5.3 pages 5 and 6; paragraph 7.2.3 (this evidence should be contrasted with the sister's later evidence). The plaintiff also gave evidence that in October 2015 she saw the MAS Assessor, Dr Gibson. It was noted that during this stage of her evidence the plaintiff sought an adjournment to put a soft neck collar on which she stated she needed when the pain was severe. 10. The plaintiff was then asked questions in relation to the period from when the CT scan occurred in February 2015 until October 2015. Mrs Dib said that in that eight month period the pain became worse and was increasing: T114.30. She also gave evidence that her depression was worsening. The plaintiff indicated that Dr Hamad increased her dosages of medicine at this time. The plaintiff said that she also received the same domestic assistance at home from her sister and mother in this period as she had received previously: T115.33. She said she gave accurate information to the occupational therapist Ms Lethbridge in relation to the time during which assistance was provided: T115.38. 11. In January 2016, Mrs Dib first saw Dr Hamad in relation to problems in her knees. This was some 17 months after the accident. At this time Dr Hamad, according to Mrs Dib, recommended Voltaren tablets to assist her with the pain, as well as other medication: T116.29. 12. The plaintiff gave evidence that her condition became worse in 2016 as the pain had increased and was constant: T118.2. Mrs Dib gave evidence that despite this she started doing light work around the house: T118.12. This included preparing breakfast for the children, preparing a cup of coffee, warming up food in the microwave and cleaning the benchtop if it was at her level. The plaintiff said that she also undertook some shopping but could not lift heavy items. She said her children were now at school and they are able to look after themselves more than before. 13. The plaintiff said that she continued to receive assistance from her family members in relation to the children. Either her husband or her mother assisted with these tasks: T119. 14. The plaintiff gave evidence that she drove the car in the Liverpool area but had a limit of about half an hour before the pain prevented her continuing. She said she sometimes drove every day but only drove when it was needed. She said she often drove her children around. 15. Mrs Dib said that she attended Dr Hamad when required and often this was twice per month. She said she followed his advice including taking any tablets which he prescribed. The plaintiff said that Dr Hamad referred her to Dr Darwiche, a specialist for back pain, who she had seen three or four times. He had also referred her to Dr Jirgais, a psychiatrist, who she had seen about two times. She said that Medicare paid for all of her various expenses in relation to medical appointments and medicines. She also said that she did not pay for any of the physiotherapy services provided: T121. 16. The plaintiff said she had last seen Dr Davis and Ms Lethbridge in 2017. 17. Mrs Dib indicated that if she was provided with money she would pay someone to provide her with domestic assistance: T122.38. When asked why she would not keep using her mother and her sister, she indicated that her mother was elderly and her sister may not continue to assist her in the future. She said that she had not paid either her mother or her sister and that her mother was about 65 years old: T123. 18. The plaintiff was then asked questions in relation to her daughter Manessa. The plaintiff confirmed that Manessa was in the car at the time of the accident: T123.18. She said that she did not notice anything in relation to Manessa on the night of the accident. However, on the next day she did notice something. She said that Manessa started crying and indicating that she was feeling pain in her leg and her neck: T123.29. The plaintiff said that soon after, Mr Diab took Manessa to Liverpool Hospital. She said she did not recall whether an ambulance was called but Manessa went with her father and Mrs Dib did not go. 19. In addition, Mrs Dib gave evidence that she took Manessa to see Dr Hamad in relation to her problems. Mrs Dib could not recall the first time that she took Manessa to see Dr Hamad in relation to symptoms arising from the accident. However, she confirmed that Dr Hamad asked questions in relation to Manessa which Mrs Dib responded to truthfully. Mrs Dib said that Dr Hamad prescribed Panadol and Nurofen for the pain and also deep heat massage of Manessa by Mrs Dib: T124.31. 20. Mrs Dib was asked in relation to the differences between Manessa before and after the accident. Mrs Dib said that after the accident Manessa was crying all the time at night and complaining about pain. She said she stopped playing with the other children and constantly told her that her back and neck hurt her. She also noted that Manessa did not have control in relation to urinating and that she would urinate while standing during the day and also at night. She said she would wake up petrified and crying. Mrs Dib said that Manessa continued to complain about her neck, back and in relation to headaches. She said she continued to wake up at night and would come to Mrs Dib scared with a headache and would sleep in her bed with her: T125.6. 21. Mrs Dib said that Manessa was also receiving treatment for asthma and had a spray for that. However, she continued to take Panadol and Nurofen for pain every day: T126.26. She said she took Manessa to Dr Hamad whenever it was needed and sometimes that was once a month. 22. Mrs Dib confirmed that she completed a Personal Injury Claim Form for Manessa and told the truth in that Claim Form. Mrs Dib also confirmed that she had taken Manessa to see Dr Gertler, the psychiatrist. She gave evidence that Dr Gertler asked her questions and that she answered them truthfully. Mrs Dib said that all of the medical costs in relation to Manessa had been paid by Medicare. 23. Mr Diab, Mrs Dib's husband, was self-represented until 16 May 2018. He did not ask any questions in cross-examination of Mrs Dib: T129.13. 24. Mrs Dib was then subject to a very lengthy cross-examination by counsel then appearing for the second defendant (who later appeared for Mr Diab). Mrs Dib confirmed in cross-examination that all evidence she had given in chief was the truth and everything she had told to the various doctors she had seen was the truth. 25. Mrs Dib was asked about her evidence in chief that, other than attending doctors at the West Hoxton Medical Centre and Liverpool Hospital, she had not attended other doctors: see T81.18. Mrs Dib confirmed this was the truth: T130.28. However, upon further questioning, Mrs Dib agreed that she had seen other doctors, although these were not connected to the accident. She said she had not thought of the other doctors when she gave the evidence: T130.1. 26. Mrs Dib confirmed that she received benefits from Centrelink. It was put to her that in 2009 she had seen a Dr Zaki who had provided her with a medical certificate for a musculoskeletal disorder. The plaintiff denied this: T132.12. However, it appears confirmed by the document dated October 2009 of the Department of Human Services at page 184 of the defendant's bundle. The plaintiff confirmed that she saw Dr Zaki on occasions prior to the accident when she needed to: T131.49. 27. Mrs Dib was then asked questions in relation to her present marital status. She said that while she was still married, the relationship with Mr Diab was "not good": T135.11. She indicated that she was still living in the same house as Mr Diab but not as husband and wife. She agreed that she was presently in receipt of a single parent's pension as she was separated from Mr Diab: T135.36. The plaintiff was asked how long she had been receiving the benefit but could not state the period. She had given evidence in chief that she had been separated since 2012: T82.49. The evidence suggests that she has been receiving the single parenting payment since October 2012, apart from a three month period where it was suspended in 2013: defendant's bundle page 180. 28. Mrs Dib was then asked questions about the Volkswagen car driven by Mr Diab which she asserted was involved in the accident. She was taken to her evidence in chief where she said that she sometimes drove the car but there was not any time when she regarded it as her car: T84.38 and T85.8. The plaintiff confirmed that at no time did she regard the Volkswagen as her car: T143.7. 29. The plaintiff was then asked questions as to whether she was the registered owner of the Volkswagen car on more than one occasion. The plaintiff, in answer to this and numerous related questions, said that she did not remember but it was possible. Mrs Dib gave evidence that she could not recall buying the Volkswagen on 21 July 2010 or selling it on 30 January 2011. She said she could also not recall when she first noticed the Volkswagen or when it was bought. However, Mrs Dib said that she used it sometimes, as did Mr Diab. Mrs Dib said it was possible that she bought the car in July 2010 and sold it in January 2011. 30. It was then put to Mrs Dib that she bought the car back from her mother on 16 May 2012. She said she did not recall this but that was possible. Mrs Dib was asked whether she recalled being involved in an accident in the Volkswagen Beetle in 2012 and she said it was "possible" but she had no memory of it: T145.18. She also stated that she had no memory of lodging a Claim Form in relation to damage to the Volkswagen suffered in an accident in 2012 or seeing an insurance investigator in 2012 for an interview in relation to the claim. She denied that she was being deliberately evasive in her answers on these matters. She said she could not recall saying to an investigator that she had bought the Volkswagen from her mother for $18,000: see T146.44. 31. Mrs Dib was then asked questions about a family car which she and her husband had at the time of the accident which was a blue Mazda CX7. The plaintiff agreed that they had this car but could not recall how long they had it prior to the accident. The plaintiff accepted that the car was registered in Queensland (T152.11) as it had been purchased there but the registration had not been transferred to New South Wales to her address at Busby. The plaintiff could give no reason why this transfer had not occurred: T153.28. She said the address in Queensland was her brother-in-law's address. 32. Mrs Dib gave evidence that both her two children had safety seats in the Mazda prior to the accident. She said that the seats were kept in the Mazda but they could be moved to the Volkswagen if that was used. She accepted that the Mazda was a much bigger vehicle than the Volkswagen. The plaintiff could not assist as to why they had decided to change to driving the Volkswagen for the trip which involved the accident. She simply said that she got into the car which was being used by her husband to transport them to KFC and did not look at the car. Mrs Dib could not recall whether it was a last minute decision to go to KFC for dinner. At the time her son was being looked after by her mother-in-law at their house at Busby: see T154.5. 33. Mrs Dib was then asked questions about her evidence in chief where she said that she could remember "a boom" to the car in the accident: T88.11. Mrs Dib had said that her head had moved forward but she could not remember whether she suffered a cut to her forehead: T88.16–.26. At one stage Mrs Dib said that maybe she had suffered a cut to her forehead: T158.49. She stated that she hit her head on the dashboard of the car (T159.2), although she was wearing a seatbelt at the time and the seatbelt restrained her in the seat. This matter will be considered further below. 34. Mrs Dib was taken to the report of Dr Gibson which stated: "She [Mrs Dib] said there was some bleeding from her forehead" (Exhibit A page 77). She was also taken to that part of Dr Gibson's report which was as follows: "She said that she had a lot of bruising over her left shoulder". Mrs Dib said that she told the truth to Dr Gibson. She said she did not remember whether she had bruising to her left shoulder in the accident: T160.22-.35. She could also not recall whether she told Dr Hamad that she had bruising to her shoulder. It is noted that there is no reference in Dr Hamad's notes for 28 August 2014 to the plaintiff saying she hit her head or cut her head or had bruising to her left shoulder (Exhibit A page 114). The plaintiff said that she could not recall whether she told Dr Hamad that she had shoulder bruising in her first consultations. The plaintiff merely said that it was possible that she had bruising and told this to Dr Gibson: T162.2. 35. Although also initially denying that she recalled she told Dr Gibson that she was bleeding from the forehead (T162.17), the plaintiff later said that if it was written on Dr Gibson's report that is what occurred: T162.30. Later in her evidence, the plaintiff said she did say to Dr Gibson that she suffered a head injury in the accident: T163.5; T163.48. The plaintiff said she could not recall whether she told Dr Hamad in her first consultation that she had a cut to the forehead: T162.47. 36. I find Mrs Dib's evidence to be unsatisfactory on this issue. I think it is highly likely that she would be aware and remember whether she suffered a cut in the accident to her forehead: cf T164.2. 37. The plaintiff was then asked questions in relation to the first time that she noticed pain to herself or to Manessa. She confirmed that in relation to herself, she first noticed pain on the night of the accident: T114.12. In relation to Manessa, she gave evidence that Manessa complained of pain either the following day after the accident or the day after that: T164.18. It was suggested to the plaintiff, Mrs Dib, that the police were told that it was only three days after the accident that she and Manessa felt pain to their neck and shoulder (Exhibit A page 14). Mrs Dib said that she was not aware that was what they were told and said she suffered pain on the night of the accident: T165.4-.11. 38. Mrs Dib was asked whether she told Dr Hamad on 28 August 2014 that Manessa was complaining of pain. Mrs Dib said "Maybe, yes" but was not certain: T165.23. She gave evidence that Manessa was later taken to Liverpool Hospital but the evidence shows this was not until 2 September 2014 (Exhibit B page 68). Mrs Dib could not answer why she did not take Manessa to Dr Hamad or to Liverpool Hospital if she was complaining of pain one or two days after the accident and waited until several days after the accident: T165.28-T166. It was also noted that Mrs Dib took Manessa to see Dr Hamad on 1 September 2014 shortly after the accident but his notes record that the attendance occurred because Manessa was suffering from a cold. The notes do not record any pain allegedly arising from the accident (Exhibit B page 42). Mrs Dib said she could not recall this: T166.47. Mrs Dib claimed that she did tell Dr Hamad about Manessa's complaints of pain. 39. Mrs Dib was then asked questions by counsel for the defendant in relation to Manessa's alleged bed wetting. Mrs Dib confirmed that she had told doctors that Manessa had problems with wetting both during the night and in daytime. Mrs Dib confirmed that prior to the accident Manessa was toilet trained. However, she agreed that prior to the accident there were occasions on which Manessa wet the bed. 40. Mrs Dib was asked when the first bed wetting problem occurred after the accident. The plaintiff said that she could not recall this but stated that after the accident Manessa wet herself both during the day and at nights: T171.27. When asked to be more specific as to timing after the accident, Mrs Dib said that she could not recall but said that she took Manessa to Dr Hamad when the problem arose. 41. Counsel for the defendant referred Mrs Dib to the Claim Form relating to Manessa which she stated in chief that she filled out and lodged on her behalf (Exhibit B page one). Mrs Dib was taken to the part of the Claim Form where the injuries are referred to and it was pointed out to her that the Claim Form did not report any problems with Manessa in relation to bed wetting. She agreed that if at that time Manessa had problems with bed wetting that she would have told her solicitor: T172.5. 42. Mrs Dib also agreed that she saw Dr Hamad with Manessa in relation to her problems after the accident. This included raising the problems of wetting in relation to Manessa with Dr Hamad: T172.13. When asked how long after the problem had first been identified that she took Manessa to Dr Hamad, Mrs Dib said that as soon as she saw a problem with wetting she took Manessa to Dr Hamad: T172.17. It was then pointed out to Mrs Dib that the first record of bed wetting in the notes of Dr Hamad was on 10 March 2015 (Exhibit B page 40: "gets episodes of incontinence"). Mrs Dib said that the records of Dr Hamad would be correct and that she accepted that within days of noticing the problem with Manessa in relation to bedwetting that she would have taken her to see Dr Hamad. When it was suggested to Mrs Dib that it was more than six months after the accident before a problem for Manessa in relation to bed wetting first appeared, she said that it may be that was the case and that would appear to be correct: T172.44. 43. It was put to Mrs Dib that the bedwetting problem with Manessa only lasted a short period of time. She denied that and said that the problem was continuing to the present. Mrs Dib agreed that when she saw Dr Davis in April 2015 she told him what problems Manessa was experiencing arising from the accident. There was then cross-examination about that part of Dr Davis' report which provides as follows: "Her mother also informed me that although toilet training had been completed prior to the accident Manessa did begin bed-wetting, albeit this has subsequently ceased". Mrs Dib said that she did not remember telling Dr Davis that, while agreeing that she told the doctors the truth. It was put to Mrs Dib that as at April 2015 bed wetting was no longer a problem for Manessa. She disagreed with that and said she did not remember telling Dr Davis that: T172.42. 44. Mrs Dib was then asked whether she stated to Dr Davis that Manessa was "somewhat withdrawn for a period" (Exhibit B page 19). Mrs Dib said that Manessa was quieter after the accident and loved sitting by herself. When asked whether she told Dr Davis that being withdrawn started and stopped, she said that she could not remember telling him that: T174.8. 45. Mrs Dib was asked whether she told Dr Davis that on the day after the accident Manessa complained to her of having a sore neck. She replied, "Maybe" but then said that she could not remember. Dr Davis states in his history in his 29 April 2015 report as follows: "The next day Manessa told her mother that she had a sore neck" (Exhibit B page 19). Mrs Dib was then asked whether the first time Manessa received any treatment after the accident was when she was taken on 2 September 2014 to Liverpool Hospital. She stated that Manessa was not taken by her but was taken by her father, Mr Diab. Mrs Dib was asked whether the first time any treatment was given to Manessa in relation to what occurred in the accident was on 2 September 2014, a week after the accident. Mrs Dib said that if that was what was "in the papers" she agreed with it: T174.29. 46. Mrs Dib was asked whether when she took Manessa in relation to a cold to see Dr Hamad on 1 September 2014 she made any mention of any problems for Manessa arising from the accident and Mrs Dib said that she could not recall (Exhibit B page 42). However, Mrs Dib agreed that if Manessa had been complaining of a sore neck the day after the accident she would have taken her to see Dr Hamad before 2 September 2014: T174.40. 47. It was put to Mrs Dib that she told Dr Davis in April 2014 that approximately six weeks after the accident Manessa told her that her back was sore. Mrs Dib said that she could not recall telling him that. As to whether that was in fact the case, Mrs Dib said that she did not recall it and could not remember whether it could be right. Mrs Dib was asked whether she told Dr Davis that Manessa continued to complain of neck ache and headaches every day and she said that if it was written in his report then she did: T175.7. 48. Mrs Dib confirmed that there was still bedwetting by Manessa at present. Mrs Dib was asked whether she had requested Dr Hamad to refer her to a specialist and she said that an x-ray had been undertaken of Manessa's bladder and Dr Hamad said that he would refer her to a specialist if she needs one. Mrs Dib said she had not taken the x-ray of Manessa's bladder to Dr Hamad. When it was pointed out that this was three years after the accident Mrs Dib said that Dr Hamad said that medicine should be tried first. She agreed that Manessa had still not seen any specialist in relation to her bed wetting and bladder: T176.1. She agreed it was still a problem and did not recall telling Dr Davis in April 2015 that the problem had stopped. 49. Mrs Dib was then asked questions about the history which she provided to Dr Gertler for the purposes of his report. She agreed that she saw Dr Gertler in January 2018 and told him the truth. This included the truth in relation to the accident. Mrs Dib was asked whether she told Dr Gertler that in the accident the car had collided "with the car in front and also collided with a light pole". Mrs Dib said it was "possible": T177.20. When asked whether it was true that the car she was in had hit a light pole in the accident Mrs Dib said that she could not recall: T177.36. She said she could not recall telling Dr Gertler that the car had hit a light pole in the course of the accident, even though it was only two months previously that she saw Dr Gertler: T178.3. 50. Mrs Dib was then asked questions about what occurred when she went to see Dr Apler, psychiatrist, for the purposes of a MAS assessment. She agreed that she saw a Dr Apler in February 2016: T184.8. It was put to her that she told Dr Apler that the car in which she was travelling collided with the car in front "and a light pole". Mrs Dib said she did not recall telling him that: T184.16. 51. Mrs Dib was then asked questions about the times she attended with Manessa to see Dr Rikard-Bell, psychiatrist. Mrs Dib was asked whether she told Dr Rikard-Bell in November 2015 that after the accident Manessa began to wet herself. Mrs Dib replied "maybe, yes": T190.4. She then said that after the accident Manessa was wetting herself. When asked whether Manessa wet herself at the scene of the accident Mrs Dib said she could not recall: T190.13. 52. Mrs Dib confirmed that she told Dr Rikard-Bell that Manessa does not sleep as well since the accident. She said that Manessa's sleeping has been interrupted until the present and certainly since the accident. She also said that Manessa has been wetting not only the bed but also wetting her pants during the day and that this was still happening and had occurred since the accident: T190. However, Mrs Dib could not recall that during the course of the interview with Dr Rikard-Bell that Manessa requested to go to the toilet and she took her without any problems or any indication that she was wetting (Dr Rikard-Bell report dated 30 November 2015 page 6). 53. Mrs Dib was asked whether she told Dr Apler in February 2016 that after the accident Manessa still wets herself "three to four times a day at school". Mrs Dib said that she could not recall saying this: T192.27. When asked whether that was the case in February 2016 that Manessa wet herself three to four times per day at school she said that was not the case. 54. Mrs Dib agreed that Manessa went to preschool and then to primary school. She agreed that Manessa had disturbed nights and nightmares since the accident, but not on a daily basis: T193.19. She could not recall how often the nightmares occurred. She stated that Manessa still had difficulty sleeping and would wake crying and came to her saying she had a bad dream. She also has woken up since the accident complaining of pain in her legs: T193.38. 55. Mrs Dib was then asked a number of questions in relation to an application which was completed in 2015 for the purposes of her Manessa applying to be a student at Sadleir Public School. She agreed that in 2015 she needed to complete an application for Manessa to attend Sadleir Public School. When taken to the application (Exhibit 3, defendant's bundle at pages 15-21), Mrs Dib confirmed that it was her signature on pages 15 and 21 of the document. She also confirmed that the date was completed by her on page 15, but she was not sure whether she completed the date on page 21: T194-196. 56. Cross-examination then focused on the "Additional Information for Preschool Enrolment" document. Mrs Dib gave evidence that she recalled completing a preschool application and providing information and signing the document at the end, but stated that she answered questions asked of her and did not complete the form herself by writing in it. 57. Mrs Dib was taken to question 10 in the form and confirmed that Manessa had asthma. She was then taken to question 11 in the form which she completed as follows: "Does your child regularly take any medication? If yes, which medication and what for? Puffer – but not regularly". Mrs Dib said that this was true as Manessa only needed her asthma puffer when required. Mrs Dib was then taken to her evidence that in 2015 Manessa was taking Nurofen and Panadol for her pain (which she said that Manessa continues to take). She was asked why she did not inform the preschool in the form of the additional medication. Mrs Dib said that was because the medication was given to Manessa before and after she attended school: T198.21. 58. She was then taken to question 16 in the form and its answer which was to the following effect: "Does s/he usually sleep through the night? Yes". It was put to Mrs Dib that that answer was inconsistent with her evidence and she said that she did not tell the preschool the full story. In response to the question that if she had been truthful she would have answered differently, Mrs Dib said that she did not want people to know all information about her daughter: T199.8. In response to the suggestion that she would have wanted carers to have proper information about Manessa's problems, Mrs Dib said that they did not care for her at night time. Mrs Dib said that the preschool people did not need to know this information. When it was suggested that the answer was untrue on her evidence, Mrs Dib said that she did not deny what she said. When it was suggested that the answer was untruthful Mrs Dib said "I see … that it is truthful": T199.46. 59. Mrs Dib was then taken to the question and answer at 22 in the form which was as follows: "Does your child require assistance with toileting? No". Mrs Dib accepted that information as to toileting was relevant to the care of Manessa: T200.9. In answer to the suggestion that if Manessa was wetting during the day that was very relevant to preschool, Mrs Dib responded that someone was helping her filling in the form, apparently to rebut the suggestion that she had said this: T200.14. Mrs Dib said she could not recall being specifically asked in relation to Manessa's toileting but said she did not complete this part of the form and could not recall it. Mrs Dib agreed that the question in question 22 in relation to Manessa requiring assistance for toileting was asked of her and she said yes she does wet herself during the day and I will send extra clothes: T201.10. When it was put to her that she was making this up, Mrs Dib denied it. 60. I find Mrs Dib's evidence on this issue to be unlikely. In my view, from the process she outlined that she was asked questions and gave answers, it is likely that Mrs Dib was asked the question at 22 and she provided the answer which was recorded which is inconsistent with her evidence in relation to Manessa's wetting. I think it is unlikely that if she had indicated Manessa's alleged problem it would have not have been recorded on the form. 61. When asked by counsel for the defendant why she did not include in the form that Manessa had problems with her neck, back, with headaches and with wetting, Mrs Dib replied that it was not her who filled out the form and she cannot fill in forms in foreign languages: T201.49. I reject that evidence. Clearly the form was seeking, in the questions asked, all information relevant to Manessa, including in relation to her medication, sleeping, toileting and medical history. Mrs Dib said that she did not want to share with the preschool her daughter's problems. However, someone was helping her fill in the form and this medical history was highly relevant to her daughter's welfare, particularly her alleged physical problems. 62. Mrs Dib accepted that she did not tell the preschool in the Preschool Waiting List Application form (Exhibit 3, defendant's bundle pages 19-21) the details in relation to Manessa's alleged problems with her neck and back and her other physical problems. This was despite the fact that she agreed that she wanted the best care for Manessa at preschool. Mrs Dib said that Manessa had the medical problems and she did not want the world to know of them. Mrs Dib said that they were problems that no-one could help Manessa with and that is why she did not tell the preschool of the problems: T202, T205. Mrs Dib accepted that she had given evidence (T126.26) that Manessa was given pain relief medication every day. It was put to her that if that evidence was correct she would have told the pre-school. Mrs Dib said that Manessa was given her medication before and after going to the preschool. She also said that the preschool could ring her as they had her telephone number and ask her to collect Manessa if necessary: T206.38. 63. Mrs Dib was asked some questions about an Application to enrol in a New South Wales Government School which she agreed was signed by her and her husband in March 2015 (Exhibit 3, defendant's bundle pages 23-29). Mrs Dib was taken to page 9 of the form (Exhibit 3, defendant's bundle page 26) where the form requested the person completing it to indicate if a student has any physical disabilities or other health issues. It was noted that asthma had been indicated. It was put to Mrs Dib that she did not nominate any other medical difficulties which Manessa had in that document. Mrs Dib said that she agreed with this and she did not want anyone to know anything about her daughter. She thought that asthma was a straightforward condition and Manessa needed her puffer. However, she said that if she told of other conditions and Manessa found out, as she was a sensitive person she would not go to school as a result. It was put to Mrs Dib that the school needed to know about Manessa's wetting. She disagreed with this and said that her daughter was very sensitive and if she knew the matter had been disclosed she would not go to school. Mrs Dib then claimed that she told the teacher but asked for the matter to be kept between the two of them. 64. It was then put to Mrs Dib that in relation to Manessa's alleged neck and back pain the school needed to know of it because of physical activities which children would be involved in during the day. Mrs Dib said that she did not know why she did not tell the school in relation to Manessa's physical limitations: T208.3. However, Mrs Dib emphasised again that she did not want to tell people in relation to Manessa's problems with wetting herself. She rejected the proposition that she did not tell the school in relation to Manessa's alleged neck and back pain as Manessa was not suffering from such pain at all: T208.9. 65. Mrs Dib was then asked questions in relation to an Application to enrol in a New South Wales Government School which was signed by her (Exhibit 3, defendant's bundle pages 31-43). Mrs Dib agreed that the signature at page 43 was her signature and also agreed that the date indicated, 1 June 1986, was clearly an error. It is noted that the date at page 44, where the principal signed the form, was 2 February 2016. Mrs Dib said that Manessa was enrolled in kindergarten at Sadleir Public School in 2016. 66. Mrs Dib was taken to the form which did not indicate any physical condition at all from which Manessa was suffering at the time. Mrs Dib said that she did not fill in the form for Manessa's kindergarten application but accepted that it was her signature on the form. It is also noted that asthma is disclosed as a medical condition on page 11 of the form (defendant's bundle page 41). She agreed that there was no disclosure in the form by her of Manessa's wetting. She also accepted that she did not refer in the form to Manessa's problems with her back, neck and other physical pain. She agreed that at this time she was still giving Panadol and Nurofen to Manessa when she needed it, which was every day: see also T126.26. Mrs Dib accepted that physical activities at the school may have affected Manessa's neck and back: T209.50. When it was put to Mrs Dib that Manessa did not need to know that she had disclosed the conditions to the school, she said that Manessa was "very smart" and would discover that she had told them in relation to her problems and would not go to school. Mrs Dib also said that at this time Manessa was depressed and did not want to go to school and said that she did not have any friends to play with. This was why she moved her to XXX Public School: T210.21. 67. It was put to Mrs Dib that she told Dr Gertler that there were no significant problems with Manessa and her ability to cope with the school situation (Exhibit B page 25). Mrs Dib said that she did not recall telling Dr Gertler that. She said that she did move Manessa from Sadleir Public School to XXX Public School where she was happier. Despite the suggestion in Dr Rikard-Bell's second report dated 18 September 2017 that Manessa was getting bullied at Sadleir Public School and so the parents thought it was better to move her, Mrs Dib said she was not bullied at school but had no friends and other children did not play with her, which led to her being sad and depressed. Manessa had been saying that she did not want to go to school: T212. This was the reason she was moved from Sadleir to XXX School: T212.18. 68. Mrs Dib was then asked some questions about an Application for Non-Local Primary School Enrolment which she signed on 16 December 2016 (Exhibit 3, defendant's bundle pages 66-70). Mrs Dib said in a Statutory Declaration that the move was wanted as "by the end of 2016 I will be moving into my mother's resident [sic], located at X D'Inzeo Place, Hinchinbrook". It was put to Mrs Dib that this reason was untrue. First, Mrs Dib said that it was not her writing on the Statutory Declaration and she could not recognise it but accepted that it may be her brother's writing: T214.6. Secondly, Mrs Dib said that that was her intention at the time. At that stage her brother Ali was living with her mother in Hinchinbrook. At the end of 2016 she intended to move into her mother's residence with her children because of problems between her and Mr Diab. She said she intended to move there and not to return. Mrs Dib gave evidence that she stayed a month and then went back to her house at Busby. She claimed that she went back because she understood that Mr Diab would be moving out of the house and she would stay. She did not recall when she moved out. It was then put to Mrs Dib that in her earlier evidence she had not mentioned the fact that she was moving to her mother's house as the reason for changing Manessa's schools from Sadleir to XXX, only that she had no friends and was depressed because of that: see T212.18. Mrs Dib initially said that she did not understand the question and then said that this was part of her private life and that there were certain things that she did not wish to have disclosed publicly: T216.49. Her answer was difficult to accept in circumstances where Mrs Dib had given evidence in chief about her separation and the differences which she had with Mr Diab: T82.30-T83.12. 69. Mrs Dib was then asked numerous questions by counsel for the defendant in relation to statements she had made to doctors and an occupational therapist who had provided a report for the purposes of the proceedings, concerning the problems that she had allegedly experienced physically in undertaking tasks since the accident. These matters included: 1. Evidence given in chief that since the accident her condition had become worse; 2. In the period of two months after the accident that someone did all of her domestic duties, including housework, shopping, and looking after the children due to Mrs Dib's pain: T105.11-.21 (although Mrs Dib answered "maybe" to the suggestion that she did no housework, shopping and looking after her children in the first two months after the accident, when asked by counsel for the defendant: T218.15); 3. After February 2015, Mrs Dib agreed that she gave evidence in chief that her position was getting worse: T106-107. At that time the plaintiff said that she was not doing anything at home and was not looking after her children: T107.15-.25. Mrs Dib said her sister or her mother were coming over every day to assist her; 4. Mrs Dib emphasised that in the eight month period from February 2015 until she saw Dr Gibson, the MAS Assessor, her position was getting worse and her pain was increasing: T114.28-.35. Mrs Dib stated that in this period day by day it was getting worse after the accident and that she was "full of pain": T219.48. She also agreed that her pain was getting worse in 2016, although she did some light housework: T117.46-118.22; 5. The plaintiff agreed that she told Dr Davis in April 2015 that she had difficulty with domestic chores and she had gratuitous assistance provided mainly by her sister, mother-in-law and a little assistance from her husband (Exhibit A page 19). The plaintiff added that she also obtained assistance from her mother; 6. Mrs Dib agreed that she told the truth to the occupational therapist, Ms Lethbridge, when she attended at her house in April 2015 (Exhibit A page 25). She agreed that she truthfully told Ms Lethbridge that she continued to experience constant pain in her neck, lower back, left arm and left leg and that she was never pain free: Exhibit A page 29 paragraph 5.1.1. Mrs Dib agreed that she told Ms Lethbridge that she had difficulties with personal care, needed assistance to cut up and prepare some food, that she was unable to prepare meals at all (Exhibit A page 32 paragraph 5.3) and that she obtained assistance from her sister or ate takeaway food, and also that she was unable to clean the bathroom, vacuum or mop (Exhibit A page 32 paragraph 5.3): T221. Mrs Dib agreed that her sister came around daily to do the laundry as she could not do it (Exhibit A page 33 paragraph 5.3). Mrs Dib said her sister and her mother helped her with everything: T222.7; 7. It was put to Mrs Dib that in 2015 her evidence was that her sister and her husband spent some 15 hours per week assisting her. Mrs Dib said she was uncertain as she did not count the hours, but assistance was given to her inside by her sister and sometimes her children. This assistance included general tidying of the house, making the beds daily, changing the sheets weekly, mopping/vacuuming/sweeping, laundry and shopping: T222; 8. She also agreed that she told Ms Lethbridge in April 2015 that she had difficulties taking the children outside to play at the park and to the beach: T222.44; 9. Mrs Dib agreed that Ms Lethbridge came back for a reassessment in April 2017 and that she told Ms Lethbridge that since the last assessment there had been no improvement to her pain and that overall, her pain had generally worsened: Exhibit A page 47 paragraph 4.1.2. Mrs Dib said that she was in pain throughout the period 2015 to 2017 and it had got worse: T223.12. She needed assistance for activities such as eating and drinking as she found it difficult to use cutlery in her left hand and only used a fork in her right hand: Exhibit A page 53 paragraph 4.2. Mrs Dib confirmed that she told Ms Lethbridge in the reassessment that her sister and mother continued to attend her home on a daily basis to provide meals for the family: Exhibit A page 53 paragraph 4.3. Further, on the reassessment, Mrs Dib also agreed that she told Ms Lethbridge that she was unable to clean the bathroom, undertake vacuuming/sweeping/mopping or changed the sheets and that her mother or sister undertook the tasks. In particular, Ms Dib agreed that she told Ms Lethbridge that she continued to receive help from her mother and sister on a daily basis for domestic and personal care tasks and that she had not been able to increase her contribution to any domestic or personal care tasks since the initial assessment in April 2015: Exhibit A page 55 paragraphs 4.4.1 and 4.4.3. Mrs Dib agreed that she had limited movement in her left arm in 2015 and that her limitations with her left arm continued: Exhibit A page 56. She also agreed that she told Ms Lethbridge that her husband assisted her but in her culture she was expected to do most of the work: Exhibit A page 56 paragraph 5.10; 10. Mrs Dib agreed that when she saw Dr Davis in July 2017 she told him that she was still unable to perform any domestic chores and continued to receive gratuitous assistance mainly from her mother and sister and on some occasions from her husband; 11. Mrs Dib said she had difficulties recalling that she saw the occupational therapist briefed by the defendant, Ms Piebenga in May 2017. However, Mrs Dib accepted that her sister visited her every day after the accident for approximately two years to provide assistance to her and that either her mother or a member from her sister's family came to assist her on days when her sister was not there: see paragraph 42 page 11 of Ms Piebenga's report dated May 2017. Mrs Dib agreed that every day since the accident someone had been at her house to assist her with domestic tasks. She agreed that Ms Piebenga had taken photographs of her performing certain tasks. When it was put to Mrs Dib that she said that she was unable to do anything until well into 2016, that was accepted as correct. Mrs Dib said that she was in pain and often slept because of her medicine and needed someone to help her. It was put to Mrs Dib that that summary of her position was untrue and she denied it: T228.12. 1. In the context of the above evidence in relation to Mrs Dib's physical problems, pain and inability to undertake domestic activities or look after her children without assistance from her sister, mother and other family members, Mrs Dib was asked numerous questions about a car accident which her husband allegedly had in July 2011 in relation to which she had signed two statements allegedly in the presence of her husband's solicitor. Initially, Mrs Dib said that she did not know if her husband was in a car accident in July 2011 and that she did not remember it (T228.16-.20), but then she stated that she did remember that he made a claim but did not remember when it was. She could not recall her husband stating that he was unable to do work at all. It was put to Mrs Dib that her husband was claiming that she had to do all the domestic work at home due to injuries which he received in the accident. Mrs Dib said that prior to the accident in August 2014 she did do all domestic duties at home. Mrs Dib denied that she knew her husband was saying that she had to help him with all tasks at home. When Mrs Dib was asked whether two statements were prepared saying that she was doing all domestic duties at home after 2011 she said that that was "possible": T229.9. 2. Mrs Dib was then taken to two statements, the first dated 3 March 2014 and the second dated 23 November 2015: Exhibits 1 and 2. Mrs Dib agreed in cross-examination that her signature was on both statements: T229.19; T230.40. She accepted that her signature on the 23 November 2015 statement was stated to be witnessed by Mr Michael Abboud, who was her husband's solicitor in the claim. Mrs Dib said she could not recall whether she went to Mr Abboud's office in November 2015 to make a statement in support of her husband's claim and denied that she was being deliberately evasive in relation to the document: T229. Mrs Dib said that she had no recollection of seeing her husband's solicitor Mr Abboud in November 2015 in relation to the statement: T230.3. 3. The November 2015 statement is significant and I set it out here in full: "I, Manal Diab of XX Kilmorey Street, Busby in the State of New South Wales do solemnly swear and declare as follows: 1. I am the wife of Mr Bilal Diab, the Claimant in this matter. 2. I have previously provided a statement in relation to the domestic care and assistance I provided to my husband from the date of the motor vehicle accident which took place on 7th July 2011. 3. Since the provision of that statement, I confirm that I continue to provide my husband with the domestic assistance referred to under paragraph 5 of my earlier statement, summed up herein as follows: i) Assisting him dress and undress; ii) Shower; iii) Shave; iv) Assisting him to change sides on the bed; v) Preparing meals; vi) Assisting him to walk around the house; vii) Vacuuming the house, and other domestic duties; viii) Shopping activities such as grocery shopping; ix) Taking him to Doctor's appointments. Physiotherapy and hydrotherapy etc. 4. I initially provided my husband with approximately 10-12 hours of assistance per week. However, since the date of the accident my husband's injuries have somewhat stabilised and I now provide him with a reduced amount of assistance. This is now confined to approximately 7-10 hours of assistance per week. 5. My observations of my husband recently can be summed up as follows: i) Bilal has become very anxious and has lost a large degree of his self-esteem. Bilal does not wish to participate in any social or recreational activities due to his constant complaint of pain and discomfort most of the time; ii) Bilal's driving is still restricted to the essentials and I do assist him on many occasions by driving him around; iii) Bilal continues to take pain killers and analgesic medication. Bilal has not attempted to find work due to the restrictions he continues to suffer as a result of the injuries received in the motor vehicle accident subject to these proceedings; iv) Our marriage has recently suffered and is no longer as harmonious as it should be. Bilal suffers from mood swings, is easily agitated and snappy towards me and the children; v) Bilal and I no longer share a sexual relationship due to his depressed mood, pain and discomfort and restrictions; vi) I used to encourage Bilal to try and look for work and to occupy himself with activities that would take his mind off his injuries. However, I ceased to do so as I realised through my observations of him on a daily basis that it is not possible for him to do so due to the injuries and disabilities he suffers from; vii) I have become aware that my husband was involved in various other accidents prior to the motor vehicle accident which took place on 7th July 2011, however, the injuries he received in the motor vehicle accident subject to these proceedings have grossly aggravated his earlier injuries and increased the level of restrictions he suffers from. 6. I provide the above based on day-to-day living with my husband and the observations I make in offering him the domestic assistance and nursing help for his injuries. 7. I state that the above represents a true version of the events and I am prepared to attend and give evidence to that effect should I be called upon to do so." 1. Mrs Dib was taken to paragraph 7 of the 23 November 2015 statement which is set out above. She said that she did not remember anything in relation to that part of the statement. 2. Mrs Dib was then taken to paragraph 2 of the statement above in which she indicated that she had previously provided a statement in relation to the domestic care and assistance which she provided to Mr Diab from 7 July 2011. She said it was possible that she had provided an earlier statement: T230.28. She said she did not recall giving an earlier statement to her husband's solicitor in relation to all the assistance she had given him. 3. Mrs Dib was then shown the earlier statement dated 3 March 2014. In that statement Mrs Dib says the following in paragraphs 5 to 8: "5. After the accident I noticed that my husband was complaining of pain to the injured regions referred to in paragraph 3. Immediately after the accident I began assisting my husband on a daily basis with additional duties over and above my matrimonial duties involving the following: • Assisting him dress and undress; • Shower; • Shave; • Assisting him to change sides on the bed; • Preparing meals; • Assisting him to walk around the house • Vacuuming the house, and other domestic duties; • Shopping activities such as grocery shopping; • Taking him to Doctor's appointments. Physiotherapy and hydrotherapy etc. 6. Immediately after the accident, my husband required full-time assistance, all day and all night for approximately 6 months. He was not able to do most things. 7. This assistance began from the date of the accident and continues to date on a reduced basis. 8. At present, my husband requires approximately 10-12 hours of assistance a week. This is provided by me. I confirm that since the date of accident my husband's life style has changed. I observed him to be in distress in most times because of the pain. I also observe him taking medication for his pains. I have also noticed that my husband has become irritable, has mood swings, difficult to communicate with and has lost part of his self-esteem for not been able to return his pre-injury state and the loss of his ability to be involved in social and recreational activities including outings." 1. Mrs Dib conceded that it was her signature on the statement but then said that she did not know whether she signed it: T230.40. 2. Mrs Dib confirmed that the statements were signed by her in March 2014 and November 2015 as true statements. By signing them she agreed that she was signing on the basis that the documents were true: T232.3-.11. 3. Questions were then asked of Mrs Dib in relation to the 3 March 2014 statement. In relation to paragraph 1, Mrs Dib said that she and her husband were separated but she was still his wife. In relation to paragraph 2, she confirmed that she was the homemaker and did not work other than at home. In relation to paragraph 3, concerning the reference to the motor accident on 7 July 2011, Mrs Dib said that she did not know of this and answered "maybe, yes": T232.49. In relation to the second sentence in paragraph 3, that she was aware that as a result of his accident in 2011 her husband had received injuries to his lower back, neck and nervous shock, Mrs Dib answered, "That's what's written here". 4. In relation to paragraph 4, she agreed that prior to the accident her husband did the activities indicated as being in the paragraph and that she had signed that it was true: T233.13. In relation to paragraph 5, concerning the assistance which she provided her husband, Mrs Dib accepted what was written in the paragraph and that she assisted Mr Diab with these various matters prior to the accident in August 2014. She agreed that she did all those things for Mr Diab right up to August 2014: T233.30. 5. Mrs Dib was then taken to the 23 November 2015 statement which she agreed she had signed: T233.37; Exhibit 2; Exhibit 3, defendant's bundle pages 186-187. She agreed that what appeared in paragraph 2 of the statement was correct, that she had previously given a statement in March 2014: T233.41. In relation to paragraph 3 of the November 2015 statement, Mrs Dib said that her husband had brought the statement to her and requested that she sign it for the solicitor and she did not read it before she signed it. She said that she thought the second statement was the same as the first statement when her husband asked her to sign it: T234.14. When asked where her husband brought the statement to her to sign Mrs Dib said "maybe at home": T235.11. She denied that it was untrue for her to say that her husband brought it to her to be signed: T235.15. 6. It was put to Mrs Dib that she signed the second statement in the presence of her husband's solicitor, Michael Abboud. Mrs Dib said that she did not remember signing the second statement with Mr Abboud and was surprised to see it signed and dated when it was: T235.23. She accepted that the second statement indicated that the witness to her signature was Mr Abboud who was her husband's solicitor in relation to his claim. She said she did not recall signing the November 2015 statement in the presence of Mr Abboud. Mrs Dib said that her husband had brought it home to be signed: T235.35. When it was put to her that she signed the statement with Mr Abboud as being true she said that she signed it thinking it was the same as the earlier statement. She also claimed that she did not "read English very well": T236.7. 7. When it was put to Mrs Dib that she told her husband's solicitor in November 2015 that she continued to provide a lot of assistance to her husband in relation to his accident, the plaintiff said that she was the person who needed the assistance at this time: T236.30. Mrs Dib rejected the suggestion that she had not needed assistance at all in relation to the August 2014 accident and that she was assisting her husband after the 2014 accident in relation to his injuries: T236.40. She again stated that she signed the November 2015 statement thinking that it was the same as the earlier statement. While accepting that she assisted her husband in undertaking tasks prior to the accident, she denied that she continued doing the tasks after the August 2014 accident: T237.5. She denied that the second statement of November 2015 was true because she did not injure herself at all in the August 2014 accident and said that she did suffer a lot of pain and injuries arising from that accident. It was put to the plaintiff that nothing changed in her physical condition between March 2014 and November 2015 and she denied it and said that after the accident she was sick: T237.21. 8. In relation to paragraph 5(ii) of the November 2015 statement, Mrs Dib agreed that on her evidence her husband was driving the Volkswagen Beetle on 26 August 2014 on the way to the KFC at Warwick Farm when the accident occurred. She agreed that going to KFC for the meal was not essential. It was put to Mrs Dib that she was not a passenger in the car with her husband on the night of the accident which she rejected. She said he was driving the car and not her: T239-T240. 9. It was then put to Mrs Dib, consistently with the November 2015 statement, that she was undertaking the various domestic duties set out in paragraph 3 of her statement between July 2011 and November 2015 which she denied, except for the period prior to the August 2014 accident: T240-T241. 10. Mrs Dib was then asked questions about other car accidents that she was involved in. She was taken to her evidence at T145.26-.34 when she revealed the August 2014 accident and one other accident when she was a learner. Soon after, Mrs Dib confirmed that it was possible that she was in a car accident in 2012 in relation to which she had lodged a claim in respect of damage to the car but she said she did not remember it: T145.38-.39. 11. It was then put to Mrs Dib that she was involved in an accident on 26 January 2009 when she was the driver and her husband was the passenger, but she said she could not recall this: T258.44. She also could not recall her husband making a personal injury claim in relation to that accident: T259. When asked whether her husband was involved in an accident in January 2017 Mrs Dib said "maybe yes" but she was not in the car or a witness to the accident. She was then asked whether she was involved in a car accident on 6 July 2017 and she said that she was: T259.27. When asked why she did not reveal this when asked about car accidents at T145, she said she thought the question was only concerning accidents prior to the August 2014 accident: T259.38. She denied that the July 2017 accident was a serious accident but accepted that the family's Mazda CX7 was written off in the accident: T259.48. She said she was hit by a truck in what was, in substance, a head-on collision but it was not a more severe impact than the August 2014 accident. She said it was not a "strong" accident: T260.16. It was put to Mrs Dib that the 26 August 2014 accident involved a "very small impact". Mrs Dib importantly said that she did not remember how powerful or strong the collision was: T260.22. This is surprising in the light of Mrs Dib's claimed recollection of the accident and her asserted injuries. 12. Mrs Dib was taken to paragraph 5(iv) of her November 2015 statement and asked what she meant when she said her "marriage has recently suffered". Mrs Dib said that when she signed the statement she was under a lot of medications and she thought the statement was the same as the previous statement which she had signed: T263.33. She said that she simply signed it and gave it "to him" which I took to mean Mr Diab, consistently with her earlier evidence. When it was suggested that she signed the statement in the presence of the solicitor, Mr Abboud, Mrs Dib mentioned again that she took a lot of medicines and she did not recall signing it: T263.42. She stated that sometimes she could not recall things because of the medicines which she takes. When it was pointed out that there was nothing in the statement about her taking a lot of medicine, she said that she did not know the content of it when she signed it and thought it was the same as the earlier statement: T264.6. When it was put to her that she made no mention in the statement of her car accident in August 2014, Mrs Dib said that she did not understand why she had to mention it: T264.20. Mrs Dib was asked by the court whether she had a practice in November 2015 of signing documents without reading them first. Her reply was that she did if she had taken medication and was then asked to sign a document: T264.44. She confirmed this was the case even if she was given a document in the presence of a solicitor: T264.50. When it was suggested to Mrs Dib that in her evidence on the previous day in court she had made no mention of medications affecting her, she stated that she was not asked to put in the statement that she was taking medication: T265.13. 13. At the request of the court, the interpreter then translated the whole of the 23 November 2015 statement to Mrs Dib. Mrs Dib pointed out that she is not known as "Manal Diab" but as "Manal El Haj Dib". When it was pointed out that she made no reference in the statement to suffering under any disability from an accident in August 2014, Mrs Dib said that she did not remember signing the statement and that once she takes her medication she does not remember "anything": T266.7. She said that she took a cocktail of drugs. She also indicated that it was the first time the statement had been translated for her: T266.13. This was directly contrary to the later evidence of Mr Abboud: T454.48. 14. It was pointed out to Mrs Dib that her evidence was that she has not been able to do any domestic tasks at home since the August 2014 accident and this should be compared to her November 2015 statement that she has been undertaking domestic tasks in 2014 and 2015. Mrs Dib said that the statement was signed by her after taking medications and she did not know what she was signing: T266.24. She rejected the truth of the November 2015 statements signed by her whilst conceding that she was able to do all domestic tasks prior to the August 2014 accident: T266.29. 15. It was pointed out to Mrs Dib that she never gave evidence in the first two days of her cross-examination to the effect that her medications made her forget, made her tired and made her dizzy. Mrs Dib said that this question had never been asked of her in her evidence: T267.19. 16. It was put to Mrs Dib that she was not injured in the August 2014 accident at all and she rejected that: T266.42. 17. It was then put to Mrs Dib that she was doing all the domestic work at home in 2017 as she had done in 2014 and 2015. She denied this and said that she did only light work due to the pain from which she was suffering: T267.49. 18. It was put to Mrs Dib that the Volkswagen Beetle, allegedly involved in the accident, was parked under a tree at the front of her house with damage to the front of the car prior to the accident. Mrs Dib said she could not recall this: T270.20. It was also put to her that the damage was still there to the front of the VW car shortly before the accident in August 2014. Again, Mrs Dib said that she did not know and she could not remember it. 19. It was then put to Mrs Dib that on 26 August 2014, the day of the accident, she visited her parent's house in D'Inzeo Place, Hinchinbrook with her children. She initially said she could not recall this (T271.32). It was then put to Mrs Dib that she stayed at her parents' house at Hinchinbrook all afternoon and into the night on 26 August 2014, the day of the accident and she told her mother that they were going to get rid of the car that day. Mrs Dib denied this: T275.31. Mrs Dib stated that when they were taken home by her brother-in-law, Mr Safi, that she, her daughter and her son and, she thought Mr Diab, stayed there all night: T276-7. 20. It was put to her that at 6:46pm on the day of the accident that Mr Diab telephoned her on her telephone number: see Exhibit 3 page 214. This was the telephone number listed in her personal injury Claim Form at Exhibit A page 1. Mrs Dib confirmed that that was her mobile telephone number at the time. Mrs Dib said she did not know why her husband would be calling her and said that perhaps he rang her simply to locate her telephone as it had become lost: T278.16. When Mrs Dib was again asked whether Mr Diab was at home with her on the night of the accident she replied "maybe" and then said that she did not know: T278.25. 21. It was then put to Mrs Dib that she had a conversation a couple of days after the accident with her sister whilst at her mother's house in relation to making a claim. Mrs Dib denied that: T279.28. Mrs Dib also denied that she had a conversation a couple of days after the accident with her sister in which her sister told her to go to the hospital with Manessa and complain about being injured in the accident to assist her with a compensation claim: T280.11. She also denied that she said to her father that she did not care if she had to wait three years to be compensated provided she could get $300,000 in compensation to buy a house like her sister: T280.21. 22. Mrs Dib was then asked questions in relation to her wearing a neck brace. Mrs Dib had worn a neck brace for a short period early in giving her evidence. It was put to her that she took off the neck brace as she was uncomfortable as she was not used to wearing it. She denied this and said that she wore the neck brace when she felt strong pain and until she felt better. She could not recall when the last time was that she wore it: T280.37. 23. In conclusion, it was put to Mrs Dib that she continued to do all the housework at her house after the August 2014 accident as she had done prior to the accident. She denied this: T281.28. It was put to her that she was not injured in any accident in August 2014 at all. She also denied that: T281.32. It was put to her that she and Manessa were at her mother's house when the alleged accident was supposed to have occurred. She denied that: T281.36. Mrs Dib said she could not recall anything about the details of the damage done to either vehicle involved in the accident: T281.49. 24. There was no re-examination of Mrs Dib. 25. On the twelfth day of the trial, Mrs Dib was recalled to give evidence about the medications she was prescribed by her general practitioner Dr Hamad. Mrs Dib said in summary that her general practitioner currently prescribed her four medications being Lovan (for anger, being upset and low mood), Palexia and Panadeine Forte for pain and Somac to assist with stomach issues as a result of the taking of the pain medication (the prescribing was confirmed in relation to earlier periods by the records of Dr Hamad in Exhibit A). Mrs Dib said she was prescribed the tablets by her general practitioner, she filled the prescriptions and she took the medication as directed. Mrs Dib was shown four boxes of medication including boxes marked 24 May 2018 and 21 June 2018. She confirmed these were the relevant tablets and her belief that it was necessary to take the tablets as a result of her injuries in the August 2014 accident. 26. Mrs Dib was cross-examined on this issue, including her frequency of consumption of the tablets and as to why some tablets were missing when her reported consumption was taken into account. Mrs Dib was asked whether she was making her evidence up in relation to her evidence that she could not recall why tablets were missing and the fact she believed she may have lost at least one tablet. She rejected this. Mrs Dib was asked whether she was sure she was taking the medicine in the four boxes and she said she was. It was put to her that if she was taking the medicine it was not for any reason relating to the car accident and this was rejected. 27. I will consider Mrs Dib's reliability and credit in some detail further below. Oral evidence of Ms Amne Dib 1. Oral evidence was given in the proceedings by Ms Amne Dib. Ms Amne Dib (Ms Dib) is the sister of the plaintiff Mrs Dib. Ms Dib gave evidence that she was one of 10 children, another being the plaintiff Mrs Dib. She gave evidence that the plaintiff Mrs Dib was about seven years younger than she is. Ms Dib stated that she came to Australia in May 2000 with her then husband. She said that she is no longer married to him. Ms Dib gave evidence that she had six children arising from the marriage and has a seventh child aged nine arising from a second relationship. Her children range in ages from 9 to 21. Ms Dib gave evidence that all of her children still lived at home with her: T323.23. 2. Ms Dib gave evidence that she had lived at her current house in Elizabeth Hills for one year and prior to that, had lived at a house in Green Valley from 2011. She stated that her parents lived in D'Inzio Place in Hinchinbrook. Ms Dib gave evidence that at one stage her father lived in a flat in Hoxton Park Road at Liverpool whilst her mother lived in the D'Inzio Place Hinchinbrook home. Ms Dib gave evidence that in her mother's house lived her mother, her brother Ali El Haj Dib and some of her children stayed there from time to time. Her father did not move back into the house until 2016-2017. 3. Ms Dib gave evidence that the plaintiff and Mr Diab lived in a flat at Miller: T327.15-.21. This was contrary to the plaintiff's evidence that she lived at a house at Busby: T79.16. Later, when cross-examined on this issue, Ms Dib said that the house at Busby where her sister lived was in the Miller area. 4. In answer to a question in chief as to whether the plaintiff and Mr Diab had been together all the time, Ms Dib replied: "They been together, one time she - they upset fighting, that's long time back. But now all the time together. You know everybody like at home …": T327.30. This answer seems to be inconsistent with the plaintiff's evidence that she had been separated from Mr Diab since 2012: T82.50. In cross-examination, Ms Dib sought to clarify, that by this answer she meant that the plaintiff and the defendant were separated under the one roof. 5. Ms Dib gave evidence that she saw her sister frequently prior to the accident. This included going to her house, her sister coming to Ms Dib's house and both seeing each other at their mother's house. They also went shopping together. 6. Ms Dib was asked some questions in relation to the activities of the plaintiff Mrs Dib prior to the accident. Ms Dib said that the plaintiff Mrs Dib "would do everything" (T330.30) including cooking, cleaning, shopping for clothes and looking after her children: T330.44. Ms Dib said that she did not assist the plaintiff Mrs Dib with her grocery shopping. She also gave evidence the plaintiff was "so happy" prior to the accident: T331.15 7. Ms Dib gave evidence that she recalled the plaintiff Mrs Dib driving a silver Volkswagen prior to the accident. She also said that "maybe her husband" also used the Volkswagen: T332.31. She stated that the plaintiff Mrs Dib had child support seats in the Volkswagen for her children when she used it. The evidence of Ms Dib was that the plaintiff used the Volkswagen extensively. She stated: "Every time I saw her she would have this car, she use it": T333.20. Ms Dib confirmed that the last time she saw the Volkswagen shortly prior to the accident that she did not notice anything wrong with it: T333.30. 8. Later, in cross-examination Ms Dib gave inconsistent evidence about Mrs Dib's use of the Volkswagen prior to the accident. Initially she said that in the period leading up to the accident she only saw Mrs Dib driving the Volkswagen. Later, she said she drove it and the family Mazda but could not recall in what precise proportions. 9. Prior to the accident, Ms Dib said that the plaintiff Mrs Dib did "everything" in relation to housework: T333.34. 10. Ms Dib said that she saw the plaintiff regularly after the accident and that she helped her because every day her pain worsened: T391.41; T391.50; T392.3. She said her sister had pain in her hand, neck, head, leg, back and indeed in every part of the body: T392.10. Ms Dib said that the plaintiff only slept or sat reclining on the lounge. Ms Dib gave evidence that she helped the plaintiff Mrs Dib with everything including housework, cleaning, doing the dishes, washing and cooking: T393.10-.20. She also said that she helped her showering and dressing as well as all other domestic activities at the house. Ms Dib said: "[I would help] with everything": T393.20. This included cooking and doing the grocery shopping at nearby shops in Miller. She said she did this as her sister needed help and could not do it herself: T394.21. She also said that she assisted with the care of the plaintiff's two small children including helping them shower, dress, preparing their food and making their lunches: T394.34. 11. Ms Dib said that she attended the plaintiff's house shortly after the accident between four and five times per week for about one to two hours each time: T394.39. She agreed that she spent about six to seven hours per week helping the plaintiff (T395.13) and that on occasions her daughters, son and mother also helped the plaintiff Mrs Dib. In addition, she attended shopping more than once per week for about half an hour on each occasion: T395.46. The shops were nearby. 12. Ms Dib was then asked questions about what the plaintiff's condition was in the last six months. Ms Dib said that the plaintiff Mrs Dib's condition was "very bad" now (T396.19) and that she has assisted her more. In the last two to three weeks she said she had undertaken all the cleaning for the plaintiff, changing her bed, washing, vacuuming and cooking and helping with looking after her children: T396.40. She said on occasion she was busy at home and could not go. She said that she now attended between four to six times per week at the plaintiff's house and assisted for one to two hours and that now she spent eight to nine hours assisting the plaintiff with her children sometimes doing more: T396.49; T397.8. She said she still did the shopping for the plaintiff: T397.18. She said she was not paid by the plaintiff for doing this and if the plaintiff could afford to pay someone to do it she would not do the household tasks but would enjoy a sisterly relationship with the plaintiff. She said her relationship had changed as a result of the plaintiff's injury: T397-8. 13. Ms Dib said that she had seen the plaintiff take tablets including Panadeine Forte (T398.23) and sometimes went with the plaintiff to attend Dr Hamad as the plaintiff was very sick: T398.42. She said this would include driving Mrs Dib to see Dr Hamad who was between 20 and 25 minutes away. Ms Dib said that she also assisted the plaintiff in having showers and rubbed ointment on her giving her deep heat treatment from the neck down her back, including her shoulders and legs: T399. She said she gave this assistance every one or two days: T399.32. 14. Ms Dib was subject to extensive cross-examination by counsel for the defendant. The vast majority of this cross-examination was through an interpreter to avoid any confusion in relation to the questions asked of her. 15. Ms Dib was extensively cross-examined in relation to the help which she says that she has given to her sister Mrs Dib since the accident in August 2014. She agreed that she started giving this assistance to her sister from the day after the accident: T408.48. Ms Dib said that she currently provides her sister even more assistance: T409.8. 16. She stated that the assistance included cleaning the house, collecting the laundry, washing, vacuuming the floor, putting the clothes on the line to dry, preparing and cooking the food and tidying up the house: T409. Ms Dib said that she cleaned the bathroom and the laundry and the shower and that this included scrubbing: T409.41. She said that sometimes her mother assisted: T409.45. She agreed that the work she undertook included the mopping and scrubbing of the floors in the kitchen and the laundry: T410.3. She said she undertook few duties outside. She agreed that on some occasions she attended her sister's day after day but it was usually four to five times per week: T410.15. She agreed that the cooking required her purchasing the ingredients and that she went on her own to the shops and brought the shopping back to prepare the meals: T410. 17. Ms Dib agreed that she was the mother of seven children and that she also looked after her seven children. She agreed that 2014 was a very busy time for her and that she spent many hours looking after her sister and undertaking cooking for her while at the same time looking after her own house and doing cleaning in her own house with her daughters' assistance. Ms Dib confirmed significantly that she was able to do the housework for her sister without any problem: T412.11. 18. When challenged on her evidence as to the domestic assistance provided to her sister, Ms Amne Dib confirmed her evidence as being true: T412.16. She was then cross-examined about her own motor car injury claims. She agreed that she had a claim arising from a motor car accident in 2006 and one arising from a motor car accident in June 2012: T412.31. Ms Dib agreed that she received money in relation to her second claim of 2012 and accepted that it was probably right that she settled her claim one month before the plaintiff's accident in August 2014: T413.50. She stated that the 2012 accident arose from her being hit by two cars from behind whilst driving a vehicle: T414.14. 19. Ms Dib agreed that in relation to the June 2012 accident she received injuries to her neck, left and right shoulders and back and also psychological or psychiatric injuries: T416-7. She agreed that as at June 2014, two months prior to the plaintiffs' accident, she was suffering from pain in her upper and lower back and had restricted movement in her upper and lower back. She also agreed that she had pain and restricted movement in both shoulders and pain and restrictions in movement in her neck. She accepted that all these restrictions and pain were in existence for her as at June 2014: T417. 20. Ms Dib accepted that the pain from both shoulders which she had radiated down her left and right arms and that the pain which she had in her neck and back was aggravated when sitting or standing for long periods and in her lower back when walking distances and up and down stairs. She agreed that the pain she had in her upper body was aggravated with bending or twisting and with pushing or pulling. She agreed that her symptoms were made worse with driving, that she was unable to lift heavy weights, that she was unable to undertake repeated actions and that she had pain in her right and left shoulders when lifting. Her symptoms included numbness in both shoulders, numbness and tingling in both hands and loss of strength in both arms. She agreed that it was correct that the pain she had in her neck travelled to her head and there was a loss of upper body strength with headaches, broken sleep and dizzy spells. She agreed that she had anxiety, stress and depression arising from her injuries in the accident and that she also had lethargy and became reclusive and wanted to stay at home: T418-9. 21. Ms Dib agreed that she had a loss of self-esteem and confidence arising from the accident and that there was a loss of concentration and motivation. She importantly agreed that she relied on others for domestic assistance including assistance to attend doctors and that all the symptoms set out above had been suffered by her since June 2012 arising from the car accident. She said that as at June 2014 she was able to do light chores, tidying and was able to provide some assistance with meal preparation. 22. Ms Dib agreed that as at June 2014 she was unable to perform any other domestic duties whatsoever other than these limited duties and this had been the position between June 2012 and June 2014: T420. She also agreed that the problems which she conceded as having from June 2012 she still had as at August 2014: T420.23. She accepted that she received help from other members of her family with household tasks because of the problems which she had arising from the car accident between June 2012 and August 2014: T421.8. She also agreed that as at June 2014 she needed assistance from other members of her family to look after her children due to the problems arising from the 2012 car accident: T422.37. She could not remember what problems she had looking after her children as a June 2014: T422.47. Ms Dib accepted that she was of the opinion as at June 2014 that she would continue to need help in the future with her own housework and domestic work: T423.45. She also agreed that she was of the opinion in June 2014 that she would continue to need help to look after her children in the future due to her problems arising from the 2012 car accident: T423.50. 23. It was then put to her that at the time of the August 2014 accident involving her sister, the plaintiff, she (Amne Dib) was not physically able to help her sister as she had previously indicated. Ms Dib said that her health had "improved" at that time and that she had obtained "herbal medicine" from Lebanon to assist her: T424.7. When asked whether she was saying that despite her problems of over two years, she was well enough within a period of two months after June 2014 to do her sister's housework, she agreed: T424.15. This was despite the fact that her evidence was that as at August 2014 she was still not able to do the housework in her own home: T424.19. Ms Dib said that while she was suffering, she still had to help her sister and did so with the assistance of her mother: T424.29; T425.38. Ms Dib then conceded that the evidence she had previously given of being able to do the housework for her sister without any problems was untrue: T425.34. However, Ms Dib denied that her sister did not need any help from her at all after the accident: T426.1. 24. Ms Dib said that she was not aware as at August 2014 that Mr Diab was making his own claim for injuries arising out of an accident or that at the time of the August 2014 accident her sister was assisting Mr Diab due to his own problems from an accident. Ms Dib said that she was not aware that after the accident in August 2014, the plaintiff Mrs Dib was continuing to give help and support to Mr Diab due to his continuing problems arising from a motor car accident: T426.24. 25. Later in her cross-examination, Ms Dib confirmed the evidence which she had given at T424.19 to the effect that as at August 2014 she was still not able to do things in her own home relating to housework due to the effects of her 2012 accident. Ms Dib confirmed that her physical problems continued until August 2014. She also confirmed that those problems arising from the 2012 accident in relation to her difficulties in doing housework in her own home continued after August 2014. It was put to Ms Dib that after August 2014 because of her own physical problems arising from her June 2012 accident she was not in a position to help her sister in relation to any domestic work. Ms Dib importantly confirmed that: T467.47. This evidence was entirely inconsistent with the earlier evidence she had given that she was able to provide substantial assistance to her sister immediately following the accident on 26 August 2014 up to the present day: T391-399. 26. Despite this, Ms Amne Dib gave evidence that after August 2014 her sister was not able to do her own housework at all: T468.11. She agreed that Mr Diab was still living in the same house as Mrs Dib after the accident and she kept in regular contact with her sister and saw Mrs Dib and Mr Diab together at the house after the accident. 27. After the accident Ms Dib said that her sister was able to do some jobs around the house which were very light such as preparing light meals such as sandwiches but not able to undertake cooking: T468. She also denied that her sister was capable of vacuuming or doing the grocery shopping, but said she was able to drive for short periods: T469. Ms Dib said she was unaware whether after the accident her sister assisted Mr Diab with his own personal care: T469.23. It was put to Ms Dib that her evidence was not true in relation to her observations of Mrs Dib after the accident to the effect that she was lying around and not undertaking any housework. She said that that is what she saw and she had not seen her sister being active: T469. 28. There was no re-examination of Ms Dib. 29. It must be recalled that the evidence of the plaintiff Mrs Dib was that the person who provided substantial assistance to her after the August 2014 accident in relation to housework and childminding was her sister Ms Amne Dib: T92.48; T101.50-T102.16; T107.49-T108.23; T115.33 and T122.43. See also the report of Ms Lethbridge dated 4 May 2015 at paragraph 7.2.3. The plaintiff Mrs Dib also gave evidence that she obtained assistance from her mother, on occasions from the defendant Mr Diab and on other occasions from the children of her sister Amne Dib. The plaintiff's evidence is that she has significant ongoing pain and that her condition has worsened from 2016: T118.2. 30. Initially, Ms Dib's evidence was that she gave very substantial assistance to her sister Mrs Dib between four and six times per week for between seven and nine hours and that the assistance she has provided to the plaintiff has increased because the plaintiff's condition has worsened. Ms Dib said she was able to provide the very substantial domestic assistance for her sister in undertaking housework and childcare responsibilities without any problem: T412.11. 31. The cross-examination resulted in evidence substantially inconsistent with this initial evidence given by Ms Dib. In particular, Ms Dib conceded that as a result of a motor vehicle accident in June 2012 she had very substantial injuries and ongoing disabilities and that these problems led to her having difficulties with her own housework and childcare, not only from June 2012 to June 2014 but these difficulties extended up to August 2014 and thereafter: see T412.31; T414.16-T414.32; T417.19; T420.23; T421.8; T422.34-.47; T423.42-.50; T424.16-.19; T467. I reject Ms Dib's evidence that by August 2014 her health had improved from June 2014 as she had taken "herbal medicine" from Lebanon: T424.1-.15. This is inconsistent with her later evidence: T467.47. It is also highly unlikely that "herbal medicine" from Lebanon could produce such a miraculous recovery in Ms Dib in two months having regard to her admitted physical injuries and problems as at June 2014. There was no independent medical or other evidence to support this claim. Despite claiming that although she was suffering at the time, she still had to help her sister (T424.29), Ms Dib conceded that the evidence that she gave before that she did not have any problem doing the work for her sister was untrue: T425.34. She said she was able to do the work with the help of her mother: T425.38. Later, Ms Dib conceded that her problems arising from the June 2012 accident continued after August 2014 causing difficulties for her in undertaking her own housework: T467.42. 32. In my view, Ms Dib gave evidence which was substantially inconsistent, which confirmed her own physical restrictions arising from the June 2012 accident including beyond August 2014 and which rendered it highly unlikely that she was able to provide anything like the assistance which she claims was provided to the plaintiff Mrs Dib by her after the August 2014 accident. 33. I take into account that Ms Dib's evidence in chief was partly through an interpreter and that her cross-examination was almost entirely through the interpreter. Senior counsel for the plaintiffs submitted that some of the answers of Ms Dib to questions commenced with a phrase like "I would like to suggest to you" were unreliable as Ms Dib was merely noting the suggestion from counsel for the defendant in her positive answer. This may have been the case in relation to the question and answer at T424.21-.24. However, I do not consider this extends to other significant answers including that at T425.34. My assessment of Ms Dib must, of course, take into account the entirety of her evidence, particularly her evidence in cross-examination when she was tested as to her evidence. 34. Overall, I found Ms Amne Dib to be an unsatisfactory and unreliable witness. In my view, having regard to the totality of her evidence, virtually no weight can be given to her evidence that she provided domestic assistance of any substance to her sister Mrs Dib, the plaintiff, after the August 2014 accident. In my view, no evidence given by Ms Amne Dib in relation to the assistance which she claims she provided to the plaintiffs after the August 2014 accident should be accepted or relied upon unless it is confirmed by an independent and reliable source. 35. My rejection of the reliability of the evidence of Ms Dib also impacts upon the evidence of the plaintiff, Mrs Dib. That is because the plaintiff's evidence, as set out above in detail, is that she relied on her sister Amne Dib after the August 2014 accident to provide substantial domestic and child minding services to her on a very regular basis including up to the present day. I will consider this evidence of the plaintiff further shortly. 36. Both Ms Dib and the plaintiff stated that their mother also assisted the plaintiffs with housework and childminding services. Their mother did not give evidence. Having regard to my findings that Ms Amne Dib is an unreliable and unsatisfactory witness, I would not be willing to put any weight on her evidence that the mother (or her own children) assisted after the accident to any substantial extent unless that was confirmed by other independent and reliable evidence. Credit findings in relation to Mrs Dib 1. I will now consider issues relating to the credit and reliability of the plaintiff, Mrs Dib. 2. The credit and reliability of Mrs Dib is of central importance in these proceedings. Senior counsel for the plaintiffs submitted that I should find that Mrs Dib was an honest witness. Counsel for the defendant submitted that I should find that Mrs Dib was not a witness of truth, particularly in relation to the accident, the extent of her injuries and the domestic assistance provided to her by her family members after the accident. 3. Mrs Dib gave her oral evidence over six days. Her evidence in chief commenced on the second day of the trial and was concluded on the third day of the trial. The cross-examination occurred over the third to sixth days of the trial. She later gave further oral evidence on the twelfth day of the trial. Having regard to the lengthy period during which Mrs Dib gave her oral evidence, I was able to observe her carefully and form an assessment as to her reliability and credit. 4. The following matters should be taken into account in assessing the reliability and credit of Mrs Dib: 1. English is not her first language. Having said this, Mrs Dib seemed to have a reasonable command and understanding of English and impressed me as an intelligent albeit reserved woman; 2. A significant part of Mrs Dib's evidence was given through a Lebanese interpreter. However, often Mrs Dib answered in English before questions were translated. As stated, she appeared to me to have a reasonable understanding of spoken English; 3. The events of the alleged accident occurred four years ago. Accordingly, it is expected that Mrs Dib would not have a firm and detailed recollection of all aspects relating to the accident, particularly as she was a passenger in the motor vehicle at the time as opposed to its driver; 4. Mrs Dib gave evidence, partly confirmed by medical records and medical reports before me, that she took a large number of medicines which had affected her recollection and made her tired and on occasions, dizzy: see for example T267.14. Although the effects of the drugs were not volunteered by Mrs Dib until the penultimate day of her evidence (see T267-8), it is accepted that drugs, if taken, may have had some effect on the detail of her recollections and answers. It is a matter to be taken into account in relation to her answers and her reliability; 5. The length of the cross-examination was likely to have been very tiring for Mrs Dib, irrespective of the extent of her injuries as claimed; 6. Caution should be exercised in placing too much weight on medical notes or on the histories set out in medical reports for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2]. See also Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [144] and Afoa v McBride [2017] NSWCA 323 at [70]. 1. I also take into account the submissions made by counsel for the parties in relation to the various matters relevant to Mrs Dib's credibility and reliability. 2. Taking into account her presentation, her evidence, the evidence given by other witnesses, the medical notes and records and the submissions made by the parties, I conclude that I have serious reservations in relation to Mrs Dib's credit and the weight to be given to her evidence including in relation to her memory, her reliability and, in some important respects, the accuracy of her evidence. I take into account the following matters which in my view are relevant to Mrs Dib's credit and reliability: 1. Mrs Dib frequently answered questions put to her by counsel for the defendant with words such as "maybe" or "it's possible" in circumstances where it seemed a more direct answer could readily have been given by her. In particular, I noted that Mrs Dib often resorted to one of these types of answers where the questioning appeared to her to be difficult or uncomfortable. In relation to many aspects concerning the August 2014 accident, particularly in her evidence in chief, Mrs Dib appeared overall to have a reasonably good recollection of events. However, when it came to other matters in cross-examination, her recollection appeared to be much less reliable and she often stated that she could not recall matters. This was even the case in relation to fairly recent events: see for example T266.44-267.44. In referring to this point, I take into account Mrs Dib's lengthy evidence and the fact that she states that she is taking extensive medication: T263.42; 2. Overall, Mrs Dib appeared to me in many instances to have a poor recollection of events, particularly under intense questioning in cross-examination; 3. Mrs Dib was asked whether she had any pain in various areas prior to the accident and she said no: T81-T 82. Mrs Dib denied that in October 2009 Dr Zaki gave her a medical certificate for a musculoskeletal disorder: T132.12. However, it appears that Dr Zaki did give a certificate in relation to Mrs Dib on 13 October 2009 in relation to a musculoskeletal disorder: see Exhibit 3, second defendant's bundle page 184; see also T108.31-.35. As Mrs Dib could have forgotten this, I give the matter little weight; 4. Mrs Dib is recorded as informing Dr Gibson that she had "bleeding from her forehead" in the accident: Exhibit A page 77. She is recorded as telling Dr Davis that she was wearing a seatbelt, no air bags were dispersed and there was no head injury to her: Exhibit A pages 17-18. Mrs Dib is recorded as telling Dr Lowy that she struck her forehead on the dashboard with no cut or bruise: Exhibit 5 page 4 paragraph 6.2. There is no reference in either Dr Hamad's 28 August 2014 clinical notes (Exhibit A page 114) or Mrs Dib's personal injury Claim Form (Exhibit A page 7) or Dr Hamad's medical certificate to her striking the dashboard with her head or cutting her forehead. Despite this, in her evidence in chief, Mrs Dib said that she could not remember whether she suffered a cut to her forehead in the accident: T88.23. I reject that evidence. In my view, it is inconceivable that Mrs Dib could not recall whether she cut her forehead in the accident having regard to the detail which she was able to give in her evidence in relation to the accident and her injuries. A cut to the forehead would likely be significant to a young woman. Further, it is clear from the evidence that the plaintiff was wearing a seatbelt at the time of the alleged accident and that the air bags in the car were not activated. There was no evidence before me that the seat belts in the car were defective or otherwise did not operate properly. I cannot see how the plaintiff could either have hit her head on the dashboard of the car or cut her forehead on the dashboard if she was wearing her seatbelt. This is particularly the case where the evidence establishes that the collision was a minor one. In relation to that matter, I accept the evidence of Mr Mansour. I will consider this further below. Overall, I reject Mrs Dib's evidence as recorded in the medical histories that she struck her head on the dashboard of the car or cut her forehead. I find that she did not. This matter is relevant in relation the plaintiff's credibility and reliability. I treat it with some caution as the histories may be incorrect. However, it is likely that the source of the matter was Mrs Dib herself; 1. Mrs Dib was unable to assist the court as to why she and Mr Diab drove the Volkswagen on the date of the accident as opposed to their usual Mazda family car. Although I think this is something she probably should have been able to recall, I do not find anything necessarily suspicious about using the Volkswagen if it was an otherwise available family motor car; 2. Mrs Dib's evidence was that by 28 August 2014, two days after the accident, Manessa was starting to complain of problems arising from the accident: T165.19. When she was asked whether she told Dr Hamad that Manessa was also having problems arising from the accident, Mrs Dib replied "Maybe, yes, I told him". She then said that she could not recall whether she told Dr Hamad of Manessa's problems in the first consultation: T165.25. However, Dr Hamad's records show that he saw Manessa in relation to a common cold on 1 September 2014, several days after the accident, but there is no recording of complaints arising from the accident in his clinical notes for the day: Exhibit B page 42. It appears that Mr Diab attended Liverpool Hospital with Manessa complaining about a whiplash injury to Manessa's neck on 2 September 2014: Exhibit B page 49. I think it is very likely that if Manessa had been complaining about problems arising from the accident only two days after the accident, as Mrs Dib claims (T165.19), that Mrs Dib would have told Dr Hamad of that fact when she saw him on 1 September 2014 for Manessa's cold as he was the family doctor. In my view, it is unlikely that the plaintiff would not have told Dr Hamad on that day and that he would not have recorded it, particularly as Mr Diab and Manessa attended Liverpool Hospital the next day. Either Manessa was not complaining about her alleged injuries in the accident at this time or Mrs Dib is wrong about the timing of Manessa's complaints or the complaints made on 2 September 2014 at Liverpool Hospital were incorrect or Dr Hamad failed to record the complaints in his consultation or Mrs Dib failed to mention them. See also T166.7-.29. I think it is more likely that Mrs Dib failed to mention them as Dr Hamad seems to have been a careful note recorder; 1. Mrs Dib is recorded as telling Dr Davis in April 2015 that "although toilet training had been completed prior to the accident Manessa did begin bed–wetting, albeit this has subsequently ceased": Exhibit B page 19. Mrs Dib's oral evidence was that the bedwetting had continued. However, bedwetting in relation to Manessa is not recorded in the Personal Injury Claim Form: see Exhibit B pages 7 and 14. There is also no mention of any bladder issues in Dr Hamad's clinical notes until 10 March 2015: Exhibit B page 40. I found Mrs Dib's evidence about Manessa's alleged bedwetting to be unsatisfactory. I think it likely that if bedwetting of significance had emerged soon after the accident, as claimed by Mrs Dib, that she would have seen Dr Hamad about it well before March 2015. The apparent suggestion to Dr Davis that the bedwetting had resolved by April 2015, while it should be treated with some caution, adds to this concern. It is also noted that Mrs Dib confirmed in evidence that she had a referral to a specialist in relation to Manessa's bladder but had not taken it any further. I think if it was a problem that action would have been taken by her and there would have been an earlier referral concerning the problem; 1. I also note that there is no reference in any of the school records to Mrs Dib disclosing that Manessa had a bedwetting problem or a day wetting problem. I think this is a relevant matter that Mrs Dib would have disclosed in the form if it existed. Mrs Dib gave evidence that she did not want the world to know about her daughter's problem and that she told a teacher. However, I think the problem would likely have been recorded if it had been raised with the school or a teacher as claimed; 2. Another significant matter is that there is no reference to Manessa's alleged neck, back or leg problems in any of the application forms to the various preschool and other schools. I reject Mrs Dib's evidence that she omitted to put the details down. Having regard to the fact that small children often are involved in extensive physical activity at school, I think it is likely that if Manessa had the physical problems which Mrs Dib claims that she had and has that they would have been referred to by Mrs Dib in the school forms. This was relevant to Manessa's safety and comfort and Mrs Dib appeared to be a devoted mother. This raises further concerns in relation to the reliability and accuracy of Mrs Dib's evidence; 3. This is particularly the case where Manessa's problems with her asthma were revealed in the forms. This evidence must have come from Mrs Dib: see Exhibit 3, the defendant's tender bundle at pages 15-44 and 52-65; 4. Mrs Dib is recorded as telling Dr Gertler, Manessa's psychiatrist, in January 2018 that the Volkswagen car apparently collided with a car in front "and also a light pole". Although caution should always be exercised in relation to histories in medical reports, this appears an unusual matter for Dr Gertler to have made up or erroneously included in his report. In cross-examination, Mrs Dib initially said that it was "possible" that she told Dr Gertler that and that "maybe I told him that" but then said she did not remember and did not know: T177.7-.36. Mr Mansour rejected the suggestion that the Volkswagen hit a light pole: T41.1-.18. His evidence of being in a lane of traffic stopped at the lights is inconsistent with the Volkswagen hitting a light pole. I find that the suggestion that the car in which Mrs Dib was travelling hit a light pole to be incorrect. It is inconsistent with all the other evidence in the case. Mrs Dib's failure to immediately reject this and to suggest that it was "possible" that the car may have hit a light pole and that "maybe it did" shows her to have a very poor recollection of the alleged accident. This again impacts on her reliability; 1. Mrs Dib's evidence is that she has suffered serious injuries and disabilities as a result of the accident. However, in my view the evidence clearly establishes that the accident was only a minor collision. I accept Mr Mansour's evidence that the impact was "fairly light" (T32.11), it was not a major accident (T36.5) and his car was only slightly damaged (T48.8). See also Exhibit 8. This is inconsistent with the extent of injuries and disabilities which Mrs Dib claims. It must be recalled that there is no radiological evidence suggesting serious injuries arising from the accident. Similarly, the plaintiffs' medical experts claim Mrs Dib had only whiplash and soft tissue type injuries. Senior Counsel for the plaintiffs submitted that the court could not find that the minor nature of the accident was a factor contrary to Mrs Dib's claimed injuries and disabilities. Counsel for the defendant submitted to the contrary relying on the decision in El-Mohamad v Celenk [2017] NSWCA 242 at [16]. In my view the approach of Basten JA (with whom McColl JA and N Adams J agreed) at [16] accords with common sense. It is a relevant factor to be taken into account but is not determinative ; 2. Mrs Dib's statements to medical practitioners and her oral evidence before the court are that she has been severely disabled as a result of the accident and has been unable, for a lengthy period, to do household work or domestic duties of any substance and has relied heavily on assistance from her sister and mother and mother-in-law or to a much lesser extent her husband. Mrs Dib gave evidence that she could only undertake some light work around the house: T118.12. This is inconsistent with Mrs Dib's signed statement dated 23 November 2015, which she apparently provided to a solicitor acting for her husband, Mr Michael Abboud, on 23 November 2015 in relation to a motor accident claim made by her husband. Mrs Dib did not deny her signature on the statement or on the earlier statement dated 3 March 2014: Exhibits 1 and 2. I will consider Mr Abboud's evidence further below. The 23 November 2015 statement says that Mrs Dib continues to provide Mr Diab with domestic assistance to a significant extent which is listed in paragraph 3 of the November 2015 statement. In paragraph 4, Mrs Dib states that she initially provided her husband with approximately 10 to 12 hours of assistance per week and then provided him with a reduced amount of assistance of about 7 to 10 hours per week. This evidence is completely inconsistent with the oral evidence of Mrs Dib and the history which she has provided to various medical practitioners and occupational therapists in relation to her limitations arising from the August 2014 accident. Mrs Dib also agreed that she signed the earlier statement dated 3 March 2014. Initially, she claimed that she signed the November 2015 statement when requested by Mr Diab without looking at it and without reading it and assuming it was the same as her earlier statement. Later, on the sixth day of the trial, Mrs Dib claimed that when she signed the form she had a lot of medications and did not know what it was and so she "simply signed it and gave it to him": T263.33. She said that if she has taken medications she would just sign a document without reading it: T264.44. When the document was translated in its entirety by the interpreter, Mrs Dib claimed that it was the first time the statement had been translated to her: T266.13. Earlier, Mrs Dib had said that all she remembered was that her husband presented her with the statement at home and asked her to sign it, which she did: T235.35-.41. Counsel for the defendant submits this evidence should not be accepted. Senior Counsel for the plaintiffs submits that the statement which is Exhibit 2 should not be regarded as significant to Mrs Dib's credit. Further, it is said that the timing of the statement has to be considered in the context of medical reports given around November 2015. I reject this evidence of Mrs Dib. First, her evidence that the statement was simply provided to her by Mr Diab at home and she signed it without reading it, is inconsistent with the fact that the 23 November 2015 statement is witnessed by Mr Michael Abboud who Mrs Dib accepted was her husband's solicitor at the time. I find it inconceivable, without compelling contrary evidence, that a solicitor would witness a signature if it was already signed when a statement was given to that solicitor. Mr Abboud's evidence in chief (T454-5 as to the second statement) was that he translated the two statements to Mrs Dib from English to Lebanese in his office before she signed them and he witnessed her signatures. Although there were no notes of the conferences and his recollection was attacked, this approach is consistent with his signature as a witness. It is also consistent with the office diary records: Exhibits 5 and 6. Mr Abboud's evidence was that in relation to the second November 2015 statement he obtained the information in it from Mrs Dib whilst Mr Diab and his mother Mrs El Kabbout were present: T515.40-516.37. This was attacked and is clearly inappropriate as it allows questions as to the independence of the statement to be raised. Mr Abboud was firm in his evidence that he obtained the information in the second Dib November 2015 statement from Mrs Dib herself despite her husband being present: T516.37. He said he had an actual recollection of this. He also gave evidence that he did not witness the statement returned to him already signed by Mrs Dib as this would have been "unethical": T510.17. Mr Abboud confirmed that he had an actual recollection of Mrs Dib coming in on a second occasion and signing the November 2015 statement in front of him which he then signed and dated: T519.47-520.17. Mr Abboud's evidence gave some cause for initial concern and caution. He initially gave evidence that he had no recollection of the matters (T464). He confirmed that he had no file notes of the meetings (T464). He saw three potential witnesses together which may have been challenging for Mrs Dib. In his evidence given on 22 June 2018 he gave inconsistent evidence as to his actual recollections and said he had an actual recollection of seeing Mrs Dib on two occasions in relation to the November 2015 statement, once to obtain the information to prepare the statement and once to sign it. After considering all these matters and the submissions from the parties as to them, I accept Mr Abboud's evidence as accurate that he has an actual recollection of the two meetings and find that they did occur as he stated in his evidence in chief. His later evidence was given when he was not pressed for time (as he had been in his earlier evidence); he was thoroughly cross-examined on the issues and maintained his recollections; he frankly conceded he saw the three potential witnesses together; he said he would never witness an already signed document as it was unethical and he impressed the court as being direct and forthright and considered on the issue. I accept this evidence as truthful. The second reason I reject Mrs Dib's evidence as to the circumstances in which the November 2015 statement was signed by her is as follows. Mrs Dib struck me as a careful and intelligent woman. I think it is highly unlikely that she would sign a document which she knew was for potential legal proceedings without reviewing it carefully. This is particularly the case where she was separated from Mr Diab at the time. I also think it is unlikely that she would have signed it without having it interpreted if she thought she did not understand any aspect of it or did not know what it was. In my view, the two statements signed by Mrs Dib in March 2014 and November 2015 are fundamentally at odds with Mrs Dib's oral evidence and the histories which she has provided to the various doctors who have provided medical reports for the purposes of the proceedings. Having regard to the nature of the statements and in particular the last paragraph in each statement which provides "I state that the above represents a true version of the events and I am prepared to attend and give evidence to that effect should I be called upon to do so", the statements, made at an earlier point in time when her recollection was likely to be better, are more likely to be correct than her oral evidence. Further, Mrs Dib had no real interest in her husband's claim unlike the present proceedings. The two signed statements substantially further damage my perception of the accuracy and reliability of Mrs Dib's evidence in these proceedings as to the nature and extent of her claimed injuries and her need for domestic assistance from the day of the accident and thereafter; 1. The evidence of Ms Amne Dib is inconsistent with the evidence of the plaintiff that she was provided substantial domestic assistance by Amne Dib after the August 2014 accident to the present day. I have set out the evidence of Ms Dib above in some detail. Her evidence of her injuries and disabilities arising from her June 2012 accident is inconsistent with Ms Dib providing any real assistance as claimed to her sister. In my view, the answers given by Ms Dib as to her injuries and disabilities in cross-examination are far more likely to be accurate than her evidence in chief on these issues. Importantly, Ms Dib confirmed that after August 2014, because of her own physical problems arising from her June 2012 accident, she was not in a position to help the plaintiff Mrs Dib in respect of any domestic work: T467.47. 1. For the above reasons, in my view, Mrs Dib was an unreliable and unsatisfactory witness. Having regard to the evidence as to domestic assistance, I find that she heavily exaggerated her problems arising from the August 2014 accident both to the court and to medical practitioners. I find, in the light of the November 2015 statement, Ms Dib's evidence and Mr Abboud's evidence, that she was able to undertake domestic chores at her house and look after her children soon after the August 2014 accident. In my opinion, great caution should be exercised before any aspect of her evidence is accepted unless it is corroborated or confirmed by independent and reliable evidence. The histories she is recorded as providing all medical practitioners in and from August 2014 should similarly be regarded with caution. It is noted that these histories include her alleged inability to undertake virtually all domestic activities and her reliance on family members, particularly her sister. My assessment of Mrs Dib and her evidence is of significant importance to the determination of the factual and legal issues in the case. Medical and other evidence for Mrs Dib 1. Exhibit A in the proceedings included the documents and medical evidence relied upon by Mrs Dib. Motor accident Claim Form 1. Included in the evidence relied upon by Mrs Dib was a Motor Vehicle Personal Injury Claim Form dated 9 September 2014: Exhibit A page 1. 2. This noted that Mrs Dib was born in June 1985, was separated and was unemployed at the time of the completion of the form. 3. It was noted that the accident in relation to which the claim was made occurred at 5:40pm on 26 August 2014 at the Hume Highway at Warwick Farm where the weather conditions were recorded as "raining". It is noted that the police did not come to the scene of the accident and that Mrs Dib claimed to be a passenger wearing a seatbelt at the time. The circumstances recorded of the accident are generally consistent with Mrs Dib's oral evidence, including that she was in the Volkswagen Beetle registered CSS 17N. The injuries were stated as being "neck, head, shoulder, back, left leg, chest". The disabilities were recorded as "pain, discomfort, restricted movement, inability to do home care tasks". Prior medical injuries or previous claims were denied. 4. Dr Hamad completed a medical certificate which was included with the Claim Form dated 11 September 2014. His medical diagnosis in relation to Mrs Dib was as follows: "neck/back/shoulder/front of chest – left arms – left thigh soft tissue injuries". His clinical findings were "tenderness neck/back/shoulder/front – chest, left arm and left thigh, headaches general movement & function restrictions". He summarised the proposed treatment plan as requiring treatment in the long term with physiotherapy and massage therapy. Police report 1. A report was made to the Green Valley police station on 9 September 2014 in terms generally consistent with the accident. Reports of Dr J Davis 1. Mrs Dib relied on reports from Dr John Davis, occupational medicine expert, dated 28 April 2015 and 27 July 2017, respectively. 2. In his first report, the date of assessment was 28 April 2015, the date of the report. No prior history of compensation or other medical conditions was noted. Dr Davis recorded that the plaintiff was taking a substantial number of medications including Panadeine Forte. 3. The history of the injury given by the plaintiff as recorded by Dr Davis was generally consistent with her oral evidence. He noted that the air bags were not dispersed in the accident, there was no head injury and no ambulance attended the scene. Mrs Dib stated that she developed pain in her upper and lower spine which increased in intensity overnight and the following day. Extensive complaints were noted at the time of the examination including constant left-sided cervical pain, occipital headaches, increased pain which extended to her left upper extremity to her digits with associated numbness, constant variable pain in the lower back, intermittent numbness in the left foot, inability to sit for long periods or to forcefully push or pull, aggravation of symptoms when travelling and poor sleep. It was also noted that the plaintiff Mrs Dib reported difficulty with domestic chores and required assistance from relatives and had difficulty caring for her young children. 4. On examination, Dr Davis importantly noted no guarding, spasm or tilt in the cervical region. Some tenderness was noted in the cervical region. A full range of movement was recorded in the right shoulder but with limitation in movement in the left shoulder due to pain. No guarding or spasm was noted in the lumbar spine although there was tenderness. 5. Dr Davis referred to radiological investigations which were normal in relation to 2015 CT scans of the lumbar and cervical spine and with minimal narrowing in an x-ray of the cervical spine with no significant degenerative change noted in an x-ray of the thoracic spine. 6. In his diagnosis, Dr Davis expressed the opinion that Mrs Dib suffered mechanical trauma to her upper and lower spine and accompanying functional impairment of her left upper limb due to referred symptoms which were caused by the motor accident. Operative intervention was not indicated although a gym programme was recommended. Regular physiotherapy visits were also recommended. Dr Davis' prognosis was for continuing pain and impairment, and a degree of disability which would impact upon Mrs Dib's various activities of daily living and her ability to enjoy life as she did prior to the accident. He recommended her for counselling because of apparent anxiety and depression. He also stated that there was a need for substantial paid commercial assistance. He expressed the opinion that the plaintiff had achieved maximal medical improvement. 7. In his second report dated 27 July 2017, Dr Davis listed new radiological investigations which were essentially normal or showed limited radiculopathy. A left shoulder ultrasound was referred to which showed mild thickening of the bursa which "could be" related to bursitis but was non-specific. Further x-rays of the cervical spine and left shoulder were essentially normal. 8. Mrs Dib's ongoing complaints were noted and an examination conducted was very similar to the first examination, although Dr Davis recorded that there were no clinical signs around the plaintiff's shoulders with good stability of both shoulders. He expressed the opinion that there was no evidence of radiculopathy in the plaintiff's upper limbs. Some tenderness was noted at L4/S1. 9. The opinion was expressed that Mrs Dib presented again with having suffered mechanical trauma to her upper and lower spine due to the whiplash movement in the accident. Dr Davis expressed the opinion that the injuries were connected to the accident and that Mrs Dib had developed mild bursitis and functional restriction of her left shoulder although probably it was radiating from her neck injury. A prognosis of continuing variable pain, impairment and disability impacting upon a number of activities of daily living was noted. Similar recommendations were made about a gym programme and physiotherapy. In relation to domestic assistance, Dr Davis had seen the report of Ms Katrina Lethbridge, occupational therapist, dated 12 May 2017. Dr Davis agreed with her recommendations with regards to past, present and future care and expressed the view that they were reasonable. He again expressed the opinion that the plaintiff had achieved maximal medical improvement. 10. It is noted that Dr Davis relied heavily on the history provided to him by the plaintiff Mrs Dib in giving his opinions. Report of Dr M Gibson 1. Part of the evidence relied upon by the plaintiff included a report of Medical Assessor Dr Margaret Gibson dated 21 October 2015. Dr Gibson found a permanent impairment in the plaintiff's left shoulder in her examination. 2. A musculo-ligamentous strain was diagnosed for the neck/cervical spine and lumbar spine and a soft tissue injury was found in the left shoulder. 3. The plaintiff's history provided to Dr Gibson was similar to her oral evidence, although she is recorded as saying that "everything was painful" when she arrived home on the day of the accident and she was having difficulty breathing. It is recorded that the plaintiff visited a psychologist on five occasions. 4. A history of extensive neck, left arm and back pain was noted by Mrs Dib. She said that she did very little domestic duties around the house relying on her mother and sister for help particularly with heavy work such as the laundry. Extensive analgesic medication was apparently taken as well as tablets for depression. 5. In her examination, Dr Gibson found a normal gait; complaints of low back discomfort; tenderness at the neck; no asymmetry, muscle spasm or guarding; no muscle wasting in the upper limbs; no radicular sensory loss in either upper limb; normal power and reflexes bilaterally in the upper limbs; tenderness over the lumbar spine but with normal posture and no deformity; no wasting of the lower limbs and no radicular sensory loss in the lower limbs. 6. Dr Gibson reviewed the various radiological evidence and importantly found that the investigations were essentially normal or had expected degenerative change. 7. Dr Gibson noted that the plaintiff at assessment reported symptoms referable to neck, left shoulder and lower back pain but no mid back pain. The opinion was expressed that a musculo-ligamentous injury to the plaintiff's thoracic spine had settled. The view was formed that musculo-ligamentous strains to the cervical spine and lumbar spine existed as well as soft tissue injury to the left shoulder. Dr Gibson expressed the opinion that the complaints about the cervical and lumbar spine were non-radicular. Report of Dr M Hamad 1. Mrs Dib relied on a report of Dr Hamad dated 20 April 2015. Dr Hamad is Mrs Dib's general practitioner. Dr Hamad recorded that on presentation the plaintiff complained on 28 August 2014 of neck pain, lower and mid back pain, shoulder pain and restricted movement, left forearm pain, swelling and tenderness as well as anxiety, dizziness and insomnia. An examination revealed tenderness over Mrs Dib's neck, back, shoulder and left arm with limited neck, back and shoulder movement due to pain. Depressed mood and anxiety were also noted in later presentations. 2. Dr Hamad diagnosed soft tissue and ligamentous strains to the neck, back, shoulders and left arm. He also noted the CT scan of the lumbar and cervical spine did not show any disc injuries. He expressed the opinion that the plaintiff's injuries are soft tissue in nature and he expected her "to settle in due time and after a reasonable course of physiotherapy and hydrotherapy which may take up to 3 months". Reports of Ms K Lethbridge 1. Mrs Dib relied on reports of Ms K Lethbridge, occupational therapist, dated 4 May 2015 and 12 May 2017, respectively. 2. In her first report, Ms Lethbridge assessed Mrs Dib's physical and functional limitations following the accident. Mrs Dib reported ongoing pain to her back, neck, left leg and left upper limb with associated difficulties. It was noted that since the accident Mrs Dib had been unable to resume her full contribution to domestic tasks and had received assistance with personal care and domestic assistance from particularly her sister and to a lesser extent from her husband. In the first report, commercial domestic assistance was recommended for 13 hours per week as well as three sessions with an occupational therapist to enable her to resume her independence and personal care tasks. Commercial childcare for 14 hours per week was also recommended with lesser hours for her younger child as he advanced in age. 3. In her reassessment report, Ms Lethbridge noted that Mrs Dib continued to experience pain at her neck, back, left upper limb and left leg with associated restrictions. It was noted that Mrs Dib had been unable to resume her contribution to domestic tasks and had continued to receive assistance with personal care. Sessions with an occupational therapist were recommended, as well as commercial domestic assistance for 8.5 hours per week and commercial childcare. Both reports are detailed. All Care Physiotherapy 1. Dr Hamad, the plaintiff's general practitioner, referred her for physiotherapy treatment. The records of All Care Physiotherapy were before the court and the history and complaints noted by the plaintiff are generally consistent with her oral evidence. The notes record that the plaintiff cannot look after her children and she obtains assistance with domestic tasks from her sister. The plaintiff had ten physiotherapy consultations between October 2014 and May 2015. West Hoxton Medical Centre notes 1. Included with the plaintiff's medical evidence were extensive notes from the West Hoxton Medical Centre where her general practitioner Dr Hamad practised. 2. The notes are consistent with the plaintiff's oral evidence that she had no relevant medical history or complaints prior to the accident. 3. The notes cover the period relevantly from 28 August 2014 to February 2018. In my view, they are generally consistent with the complaints the plaintiff has made about her injuries and continuing disabilities. It is unnecessary for the purpose of this judgment to go through in detail the various references. However, it is noted that there are a number of attendances in August and September 2014 relating to the accident. 4. The notes record an attendance with Dr Hamad on Thursday 28 August 2014 at 11:50am. The history given to Dr Hamad was as follows: "Sitting in passenger seat… Hit car in front in wet weather Neck pain, back pain, headaches, shoulder pain due to sudden impact of the hit L forearm pain and swelling and tenderness Muscular and soft tissue injuries Insomnia due to pain, distress due to incident … Reason for contact: MVA (Motor vehicle accident) on Tuesday 26/8/2014 5:30." 1. On 1 September 2014 Dr Hamad recorded a history of neck and mid back pain and tenderness. On 5 September 2014 there was a history of neck pain, back pain, joint stiffness with restricted movement and shoulder pain as well as pain going down both legs. A complaint was made of recurrent headaches. The plaintiff was referred for radiological investigations. 2. On 11 September 2014 there were complaints about pain in the various areas indicated with Mrs Dib having problems functioning at home and doing her home duties due to pain. Mrs Dib was advised to use analgesia regularly and to have physiotherapy and massage therapy. Similar complaints are made in numerous later consultations over the period 2014–2018. In some consultations, the plaintiff complained of depressed mood, distress due to pain and later depression and anger due to chronic pain. On 13 November 2017, for example, the plaintiff gave a history of back, neck and left arm and shoulder pain and restricted mobility since the accident. Radiological investigations 1. In a CT scan of the lumbar and cervical spine dated 5 February 2015, Dr T Ecker effectively found normal studies with no disc protrusion or neural compromise demonstrated (Exhibit A page 87). 2. Similar conclusions were reached by Dr C Hiew in x-rays of the cervical and thoracic spine undertaken on 3 September 2014 (Exhibit A page 88). 3. Dr R Cuganesan completed CT scans of the cervical and lumbar spine in March 2017. 4. In relation to the cervical spine, no focal disc herniation, central canal stenosis, foraminal stenosis or neural impeachment was noted in the cervical spine. A congenital deficiency was noted in C1. In relation to the lumbar spine, there was no significant degenerative change, no evidence of spondylosis and no focal disc herniation or neural impingement. 5. An x-ray of the left shoulder performed on 9 March 2016 was essentially normal. 6. On 30 October 2015 an ultrasound was undertaken of the left shoulder by Dr C Hiew. The doctor noted no rotator cuff tendonopathy. A mild thickening was noted which was said "could be related to bursitis". However, Dr Hiew noted no sonographic impingement. Reports of Dr Marsh, Occupational Physician 1. The plaintiffs relied on two reports of Dr N Marsh. The first report dated 26 November 2015 was referred to in one of the versions of the 3 April 2017 report of Dr Lowy, relied on by the defendant. 2. In his first report, Dr Marsh noted that he saw the plaintiff Mrs Dib on 26 November 2015. The history given by the plaintiff is generally consistent with her evidence in chief. There is no reference to the plaintiff striking her head on the dashboard. The history records the plaintiff Mrs Dib being immediately aware of pain following the accident which is somewhat contrary to the evidence in chief: T90.6. The history of inability to undertake most domestic tasks is consistent with her evidence in chief. 3. Dr Marsh stated that the plaintiff generally exhibited exaggerated pain behaviour on examination. The plaintiff complained of marked pain on all movements with pain in her low back, left knee, neck, left shoulder and arm. Frequent headaches were reported. Dr Marsh noted that the plaintiff was in no distress, had a reasonably full range of lateral flexion, had no indication of asymmetry and there appeared to be no unilateral muscle atrophy in the lower extremities. Some inconsistencies in reduction in motor power were noted. Dr Marsh noted that there were no objective signs of regional pain syndrome in the left hand. Pain in the shoulders was reported. Dr Marsh reviewed the radiography and noted no abnormality. He saw the mild thickening of the bursa as being unlikely to be of significance. 4. Dr Marsh in his opinion stated that Mrs Dib exhibited exaggerated pain behaviour and organic features indicative of a secondary pain syndrome. He was of the view that the plaintiff sustained a whiplash-type injury to the neck, mid and low back areas with referred pain from the neck to the left shoulder. He stated that the plaintiff "may" have continuing soft tissue injury with chronic musculoligamentous strain of the neck, mid-back and low back. Dr Marsh did not consider there was any evidence of any significant persisting pathology to the left shoulder which would explain the gross restriction in movement. He was of the view that there was also a secondary chronic pain syndrome. Dr Marsh considered the injuries and disabilities were subsequent to the motor accident. Some limited assistance was said to be needed to cover heavier domestic household tasks including on an ongoing basis. A pain specialist was recommended. 5. The second report of Dr Marsh also dated 26 November 2015 assessed whole of person impairment. Medical and other evidence for Manessa Hawchar 1. Exhibit B in the proceedings was a bundle of documents, including medical reports, related to the plaintiff in proceedings number 2015/221863, the child Manessa Hawchar ("Manessa"). 2. Manessa was born in November 2010 and was thus three at the time of the alleged accident and seven at the time of the trial. As stated above, she is the daughter of Mrs Dib and Mr Diab. Motor Accident Personal Injury Claim Form 1. A Motor Accident Personal Injury Claim Form was prepared on behalf of Manessa by Mrs Dib on 9 September 2014. At that time Mrs Dib confirmed in the form the accuracy of the contents of the form. 2. The contents of the form are, in substance, consistent with Mrs Dib's oral evidence. The form stated that the accident occurred on 26 August 2014 at 5:40pm on the Hume Highway at Warwick Farm and it was raining at the time. The form provides that Manessa was a passenger in the motor vehicle driven by her father which was involved in the accident, and that she was wearing a seatbelt at the time. No ambulance attended at the scene nor did the police. Mr Diab's vehicle is identified in the form. The injuries alleged in the form are: "neck, both legs, psych": Exhibit B page 7. It is alleged that Manessa suffered, as a result of the injuries, pain, discomfort, crying, flashbacks and anxiety. There is also a reference to Manessa being admitted to Liverpool Hospital on 29 August 2014. There is no other evidence to support this. The evidence shows Manessa attending hospital on 2 September 2014: Exhibit B page 73. 3. There is a medical certificate from Dr Hamad attached to the Claim Form dated 11 September 2014. In relation to Manessa, Dr Hamad's diagnosis or description of injury was as follows: "whiplash neck injury, anxiety reaction": Exhibit B page 14. Dr Hamad recorded his clinical findings as "neck pain; tenderness cervical spine. Insomnia, nightmares, phobia from cars & fear." Dr Hamad referred to Manessa attending Liverpool Hospital and stated that the proposed treatment plan was long-term and it involved massage neck therapy and counselling. Report to police 1. The documents show the accident was reported to the police at Green Valley station on 9 September 2014. The details of the report are generally consistent with Mrs Dib's oral evidence. It is noted: "three days later the driver 1's wife and daughter felt pain to their neck and shoulder". Medical reports Reports of Dr J Davis 1. Manessa relies on reports of Dr John Davis, expert in occupational medicine, dated 29 April 2015 and 15 January 2018, respectively. 2. In his first report, Dr Davis notes that he assessed Manessa on 28 April 2015. Dr Davis was provided with a discharge summary from Liverpool Hospital. 3. The history provided to Dr Davis was generally consistent with Mrs Dib's oral evidence. Dr Davis records that Manessa was secured in a child seat in the rear of the vehicle at the time of the accident. The next day Manessa was alleged to have told her mother that she had a sore neck. Following continued complaints by her of symptoms, she was taken by her father some six days later to Liverpool Hospital where whiplash was diagnosed. Panadol was recommended and later Dr Hamad referred Manessa for physiotherapy. Mrs Dib apparently told Dr Davis that approximately six weeks after the accident Manessa told her that her back was sore and that she began bed wetting, although this had subsequently ceased, and also became "somewhat withdrawn". Mrs Dib claimed that Manessa continued to complain of neck ache and headaches every day with occasional ache in the lower back at the time of Dr Davis' first assessment. 4. In his examination, Dr Davis importantly noticed no guarding or spasm. Tenderness was noted over the upper right facets, although there was no asymmetry of movement. Manessa had a full range of movement in both shoulders, there were no abnormal neurological findings, she walked normally, there was no tenderness to palpation of the lower thoracic and lumbar spine and there was a normal neurological examination of her lower limbs. 5. Dr Davis expressed the opinion that Manessa had suffered a whiplash-associated disorder in the cervical spine consistent with the accident and that her treatment with analgesics and physiotherapy was appropriate. Dr Davis indicated that while it was difficult to be completely certain, he expected that she would not be restricted in any of her activities in the future, apart "from being predisposed to some discomfort during static loading in her upper spine which would result from long periods of computer use or other activities": Exhibit B page 20. Dr Davis indicated this may be some disadvantage in Manessa's choice on the open labour market in the future. Dr Davis expressed the opinion that there was no indication for provision of any assistance or further treatment, apart from occasional Panadol. He expressed the opinion that Manessa had reached maximal medical improvement. 6. In his second report dated 15 January 2018, Dr Davis noted that Manessa was now seven years old and had no specific physical treatment since the time of the last assessment. He noted that due to the development of nocturia Manessa was recently referred for an ultrasound of her urinary tract which was reported as normal and showing no abnormality. Dr Davis recorded continuing complaints of variable pain in her neck with headaches and a "intermittent achy sensation" in her lower back. Mr Diab noted that Manessa continued to suffer with symptoms of incontinence. 7. The examination by Dr Davis showed no levels of spasm or guarding, some complaints of tenderness although with a full range of movement, normal upper limb reflexes with no other clinical criteria to suggest radiculopathy, normal gait, normal reflexes and a full range of movement. 8. In his diagnosis, Dr Davis noted probable soft tissue injury in the lumbar spine but with no other evidence to suggest any form of radiculopathy. Manessa's prognosis was for "possible variable symptoms of a minor nature". In relation to the development of incontinence, given her normal ultrasound Dr Davis suggested a possible "psychogenic reaction to the accident". He continued to express the opinion that in the future long periods of static loading in her spine may result in some discomfort, particularly with computer work. Dr Davis said that there was no indication for Manessa to be provided with personal care or domestic assistance and no treatment other than the occasional Panadol. Report of Dr R Gertler, psychiatrist 1. Manessa relied on a report dated 13 January 2018 from Dr Robert Gertler, psychiatrist. 2. The history provided to Dr Gertler by Mrs Dib was similar to Mrs Dib's oral evidence, although he noted that Manessa did claim to remember part of the accident and that her father was driving at the time. He noted that Manessa continued to experience pain in the neck and bad dreams at night almost always associated with enuresis. He was told that Manessa developed a fear of travelling in motor vehicles, although there were no significant problems noted in her ability to cope at school. In the consultation, Manessa denied feeling frightened when travelling in a motor vehicle although her mother did say that she would tense and often tell her mother to "be careful" and not to drive too fast. 3. Dr Gertler noted that Manessa had friends at school, she played with them and she appeared as an alert and co-operative girl. While she was restless during the assessment, she was not overly so and was able to converse with the examiner. Her affect and her mood appeared normal. 4. Dr Gertler expressed the opinion that there appeared to be evidence of some symptoms associated with anxiety, although Manessa herself denied being anxious with travelling in motor vehicles. Dr Gertler noted that Manessa spoke of nightmares which were always associated with enuresis. 5. Dr Gertler expressed the opinion that there was sufficient symptomatology present to warrant a diagnosis of anxiety most likely as part of an adjustment disorder with anxious mood. He regarded her prognosis as reasonable. 6. In the absence of relevant symptomatology prior to the motor vehicle accident, Dr Gertler stated that "it is to be assumed that the current symptomatology has been caused by the accident". He noted that sessions with a psychologist appeared to have been of some benefit to Manessa. 7. Dr Gertler expressed the opinion that further psychological or psychiatric treatment was not indicated and that with the passage of time Manessa's symptoms would gradually resolve completely. Report of Dr F Wong 1. Part of the medical evidence relied upon was a report of Dr F Wong dated 5 December 2017 following an ultrasound of Manessa's urinary tract which found no significant abnormality. Report of Dr M Hamad 1. Manessa relied on a report of Dr Hamad, her general practitioner, dated 17 February 2015. It was noted that Manessa complained on 5 September 2014 of neck pain with limited mobility in all directions and that there was difficulty sleeping at night with nightmares and distress with neck pain. On examination, Manessa was tender in the lower and mid-cervical spine and the left shoulder, although there was a good range of movement. Dr Hamad diagnosed a whiplash injury to the cervical spine with facet joint dysfunction and an anxiety reaction due to the accident. He expressed the opinion that given enough time and physiotherapy treatment the prognosis was good and Manessa should return to her pre-injury status. Later attendances in late 2014 and early 2015 showed that Manessa was still apparently suffering from neck and left shoulder pain and insomnia. Liverpool Hospital records 1. Included with the tendered material were medical records of Liverpool Hospital relating to two admissions of Manessa, one of which appeared to be related to the alleged accident. In a discharge referral from the Emergency Department dated 2 September 2014, a diagnosis of whiplash injury to the neck was made following a motor vehicle accident six days prior. It was noted that Manessa presented with ongoing neck pain and that there was mild left tenderness in the neck on examination. Analgesia and physiotherapy was recommended. West Hoxton Medical Centre records 1. Before the court were the records of West Hoxton Medical Centre relating to Manessa. 2. These records reveal no relevant history prior to the accident. 3. The records since the accident are generally consistent with the oral evidence of Mrs Dib and include: 1. 5 September 2014 – Manessa presented at the hospital with severe neck pain on 2 September 2014 and was diagnosed with whiplash injury. It was noted that Manessa had neck pain and joint stiffness and nightmares since the accident and was not sleeping well; 2. 11 September 2014 – Manessa presented with insomnia, nightmares, neck pain, phobia from cars and with severe fears and may require counselling since the motor vehicle accident; 3. 30 September 2014 – Manessa presented with neck pain and leg pain since the motor vehicle accident 27 October 2014. Manessa presented with shoulder and arm pain and tenderness since the accident as well as insomnia due to nightmares; 4. 11 February 2015 – Manessa presented with neck pain, leg pain and tenderness; 5. 10 March 2015 – Manessa presented with neck and lower back pain, left thigh and knee pain, panic attacks and episodes of incontinence; 6. 10 October 2015 – Manessa presented with back pain and neck pain and distress; 7. 19 November 2015 – Manessa presented with pain in various areas including the back as well as having panic attacks, anxiety, insomnia and nightmares since the accident; 8. 20 January 2016 – Manessa presented with enuresis since the accident; 9. February 2016 – Manessa presented with pain in the knees, legs, back and neck on two occasions; 10. 9 July 2016 – Manessa presented with knee and neck pain as well as not sleeping well because of nightmares; 11. 21 November 2016 – Manessa presented with enuresis. There were similar presentations in March 2017 and November 2017 for nocturia. Evidence for the defendant 1. The defendant in both proceedings was Mr Bilal Diab. He was unrepresented until 17 May 2018. Mr Diab was present in court through much of the hearing. When Mr Mansour and Mr Safi gave evidence, Mr Diab was not in court. Mr Diab was asked whether he wished to cross-examine witnesses and he did not take up that opportunity as was his right as a party. 2. From 17 May 2018 Mr Diab was represented by counsel and solicitors. He was not called to give evidence. The evidence of Mr Abboud 1. Oral evidence was given by Mr Michael Abboud. This has already been referred to above. Mr Abboud is a solicitor based in Parramatta who acted for Mr Diab, the defendant, in relation to a motor accident injury claim which arose out of an accident in July 2011. 2. Mr Abboud confirmed that he received instructions from Mr Diab in relation to the claim, including in relation to the preparation of his claim for damages. As part of this, Mr Abboud confirmed that he spoke to witnesses other than Mr Diab including Mr Diab's wife, the plaintiff Mrs Manal Dib: T450.44. 3. Mr Abboud said that he spoke to Mrs Dib on more than one occasion with the purpose of obtaining supporting evidence in relation to Mr Diab's claim for compensation in relation to domestic assistance: T451.8. He said he spoke to Mrs Dib in his office in a conference: T451.25. In his evidence he confirmed that he obtained two written statements from Mrs Dib. Mr Abboud confirmed that in all his discussions with Mrs Dib he spoke Arabic in a Lebanese dialect which was also the same dialect that Mrs Dib used: T451.42; T453.22. 4. Mr Abboud gave evidence about taking a first statement from Mrs Dib: T452-3; T453.26-454.1. He said that Mrs Dib came to his office and he had no difficulties in communicating with her. He said that he asked questions of her in relation to the assistance she had provided to Mr Diab. He said that she stated that she looked after Mr Diab and provided him with help. He said he dictated the information she had provided into a statement form in Mrs Dib's presence which was then typed up. He said that subsequently Mrs Dib came back and signed the statement which became Exhibit 1 in the proceedings. 5. Mr Abboud said that Mrs Dib came back to see him in conference: T454. He read the draft statement to her and obtained the agreement of her to its contents and she signed it. He said he read each paragraph in English, translated it to Lebanese to ensure that Mrs Dib fully understood it and then confirm the accuracy of the draft. In relation to the 3 March 2014 statement, Mr Abboud confirmed his signature and that of Ms Dib on the statement. 6. Mr Abboud gave the further evidence that a second statement was provided by Ms Dib which he arranged. He gave evidence that again, Mrs Dib came into his office. This time he said that she was in the presence of another family member including Mr Diab. He gave evidence that further information was provided in relation to a domestic assistance claim by Mr Diab and that he went through a similar process of dictating the statement in Mrs Dib's presence and it being then typed up. 7. He confirmed that Mrs Dib then came back into his office to sign the second statement and that all communications were in Lebanese Arabic. He confirmed that the second statement was the statement which became Exhibit 2 in the proceedings. Again, Mr Abboud said that when Mrs Dib came in to review the statement he read each paragraph of the statement to her, translated it into Lebanese Arabic and then when she was satisfied with it, it was signed by her and witnessed by him: T454-455. 8. In cross-examination Mr Abboud said that he had produced the whole of his file in relation to Mr Diab's claim but not in hard copy as most of the file had been transferred to another solicitor. He said that the whole of the file was scanned into his computer system and he forwarded the whole of the scanned file to the court: T455-6. 9. Mr Abboud confirmed that his practice in transferring a file was to maintain the cover of the file and that he did that in the present case. He said he had not produced the cover of the file in answer to the subpoena but he said the only notations on the file related to details such as the party's name and address and various other details: T456. He said that there were no notes on the inside of the file and that he kept file notes most of the time on the file. These included notes of conversations with the insurer's representatives, with the clients and with witnesses. Mr Abboud said that in the majority of cases file notes were kept of these conferences but not in all cases. He said that sometimes what occurred was covered by a letter and that the staff went through the file to prepare the account. 10. Mr Abboud was asked questions as to whether he would send a statement to the other side before it was signed by the witness. He said he would not usually do this unless the person had approved the document. He later gave evidence that the second statement was sent unsigned because of time pressures. Mr Abboud initially stated that he had no independent recollection of what happened in the present case and that there were no file notes on the file in relation to his attendances with Mrs Dib: T464.24-.38. 11. Later, Mr Abboud changed that evidence. He said that he had reviewed the office diary entries and had an actual recollection of meeting with Mrs Dib on several occasions. He said he recalled her coming in and giving information for the November 2015 statement in his office whilst Mr Diab and Mrs El Kabbout were present: T515.16; T515.43; T516.37. She then returned to his office on 23 November 2015 and signed the statement in his presence which he then dated and witnessed: T510.40. See also Exhibit 6. As set out above, I accept that evidence for the reasons given, despite his initial contrary evidence. The defendant's medical evidence in relation to Mrs Dib Medical reports of Dr A Lowy 1. The defendant relied on three medical reports of Dr Anthony Lowy, occupational physician, dated 3 April 2016 (but it appears from the page headers that it should be dated 3 April 2017) and 19 February 2018. 2. Dr Lowy's first report was prepared following an examination of Mrs Dib on 3 April 2016. Mrs Dib attended with her medications and some imaging studies. Dr Lowy noted that Mr Diab attended with Mrs Dib and that in the course of the examination, they frequently exchanged information as their recollection of certain matters appeared poor (paragraph 4 page 2). Initially, Mrs Dib said that at the time of the accident she was not looking as she was manipulating her mobile phone and was unable to provide any details about the vehicles. Later, she provided more information to Dr Lowy in relation to the accident (paragraph 5.1 page 2 and paragraph 6 page 4). 3. The history provided by Mrs Dib was generally consistent with her evidence in the proceedings. She told Dr Lowy that she experienced major jarring and jolting at the time of the accident, although she was restrained by the seatbelt and no airbag was deployed. She stated to Dr Lowy that she struck her forehead on the dashboard with no cut or bruises and immediately experienced "10/10 pain in my forehead and neck" (I have considered this issue above and have rejected that Mrs Dib struck her forehead on the dashboard of the car). Mrs Dib mentioned mid and lower back pain and left shoulder pain which occurred not immediately but over the next day or so. 4. Mrs Dib said that her initial pain was and still is painful at an extreme level and has been continuing. 5. Mrs Dib stated to Dr Lowy that she needed assistance with the food and later said that she had done no housework because of her pain and she merely sits and watches others. The housework was said to be undertaken by a combination of her family. 6. Dr Lowy noted the 28 August 2014 medical notes of Dr Hamad, the details of the Claim Form, Mrs Dib's ongoing progress history, her undertaking of physiotherapy and her taking of prescribed narcotic analgesic medications. 7. Mrs Dib said that her pain persisted and it was just as bad if not worse than it was in August 2014 in her head, neck, left shoulder, mid back and lower back. Mrs Dib said that the pain interfered with her life and was extreme. She stated that she no longer attended physiotherapy or any other health professional other than her GP for medication. 8. On examination, Dr Lowy found that Mrs Dib was able to sit in the chair during the consultation for 60 to 70 minutes with no apparent distress, that her whole person demeanour particularly when getting up, during initial standing and then whilst walking was "theatrical and one of considerable exaggeration"; there was considerable and instant overreaction to light palpation over her entire neck region, her shoulders, her upper back and lower back and all minimal movements were undertaken with complaints because of pain. Despite this, Dr Lowy noted that the overall power, tone and musculature of her limbs was symmetrical and normal for a right-handed person; she had normal strong grip in her hands; testing power against resistance of both lower legs, her feet and ankles and great toes was normal and pain free and other reflexes were brisk and normal. Dr Lowy examined the radiological investigations and said these were essentially normal. 9. Dr Lowy expressed the opinion that Mrs Dib's presentation was "largely if not entirely inconsistent with any persisting injury" to Mrs Dib's musculoskeletal system and certainly none could be attributable to the motor vehicle accident in August 2014. He stated his opinion that the physical examination of Mrs Dib demonstrated an intact musculoskeletal system with no abnormal physical signs in any region. He stated that there was no physical diagnosis to explain Mrs Dib's widespread pain which she reported. Dr Lowy was of the view that it was consistent that Mrs Dib experienced soft tissue strain of the neck, upper back and lower back in the motor vehicle accident but that in accordance with the usual position, such soft tissue injuries in August 2014 would have healed and resolved within several weeks, and certainly by the end of 2014. Dr Lowy stated that from the beginning of January 2015 he was of the view that any complaints by Mrs Dib of pain and disability were unrelated to any actual musculoskeletal injury sustained in the motor vehicle accident and the complaints she made at the time of the examination were conscious and behavioural. 10. Dr Lowy saw no loss of work capacity or unfitness for future work. He saw no physical restrictions. Mrs Dib's reporting of inability to undertake domestic tasks were considered by Dr Lowy not to be due to any persisting musculoskeletal injury of any kind that occurred in the motor vehicle accident. He was of the view that from August until December 2014, except for narcotics, the treatment was appropriate and necessary as it involved reassuring general practitioner consultations concerning her soft tissue injury. However, Dr Lowy was of the view that no treatment of any kind was medically necessary or appropriate from January 2015 to the time of his examination on 3 April 2017. 11. The defendant tendered another version of the 3 April 2017 Lowy report which had been served on the plaintiffs' solicitors. This referred to Dr Marsh's 26 November 2015 report on page 10 and Dr Lowy noted that his opinion differed from Dr Marsh. 12. In his second report dated 19 February 2018, Dr Lowy did not change his opinion even in the light of the reports of Drs Gibson, Davis, Marsh and Ms Lethbridge. 13. In particular, Dr Lowy: 1. Indicated that the recommended attendance at a gym and other physical therapies or counselling would have nothing to do with any injury sustained in the August 2014 motor vehicle accident; 2. Rejected the conclusion of Ms Lethbridge that Mrs Dib had a need for the commercial assistance which Ms Lethbridge recommended in her May 2015 report. This was due to the view of Dr Lowy that he could find no abnormal physical signs in any region of Mrs Dib's system nor any physical diagnosis to explain her widespread complaint of pain; 3. Referred to a short report of Dr David Manohar which was said to contain minimal comments and merely documented complaints from Mrs Dib without any objective findings concerning tenderness; 4. In relation to Dr Davis' opinions, Dr Lowy noted that Dr Davis, in his view, recorded not one objective abnormal sign in Mrs Dib's musculoskeletal system so he regarded Dr Davis' comments as speculation; 5. Did not agree with Dr Davis' recommendations in his reports for a gym programme, physical therapy as well as domestic assistance; 6. Despite the views of the other medical practitioners listed, he confirmed the conclusions in his 3 April 2017 report. Report of Ms D Piebenga, occupational therapist 1. The defendant relied on a detailed report dated 31 May 2017 of Ms Dawn Piebenga, occupational therapist. This was prepared following an attendance at Mrs Dib's home on 2 May 2017 where Ms Piebenga requested Mrs Dib to undertake various movements which were photographed and are commented on in the report. In her summary statement, Ms Piebenga states as follows: "Despite numerous investigations, Ms El Haj Dib has no pathology. Medical opinions agree she has suffered a soft tissue injury. The injuries Ms El Haj Dib may have sustained in the subject accident were relatively minor in nature and should have resolved by the time of this assessment". 1. Ms Piebenga noted that Mrs Dib reported that she was unable to return to her pre-accident domestic activities because of pain arising from the accident. Ms Piebenga noted that during the assessment which she undertook, Mrs Dib moved relatively easily throughout her home but was observed to be stiff at times and expressed the opinion that Mrs Dib was likely deconditioned "due to inactivity". She noted that Mrs Dib's affect was slightly restricted and she presented as "symptom focused and pain-avoidant". It was further noted that Mrs Dib was able to participate in the three hour assessment demonstrating adequate endurance for routine domestic activities. 2. The summary of her detailed report only recommended past gratuitous assistance for showering for 10 minutes weekly for two weeks (ie 20 minutes) and past gratuitous childcare support for two hours a day for two weeks. 3. It was noted that Mrs Dib's mother was present during the assessment. Whilst Mr Diab was present in the home for a portion of the assessment he did not participate in the assessment. 4. It was also noted in the report that Mrs Dib's sister allegedly visited every day from the date of the accident for approximately two years to provide assistance to Mrs Dib and now visits every two to three days. It was recorded that Mrs Dib's 18-year-old niece also assisted with domestic activities. 5. In paragraph 9 of her report, Ms Piebenga undertakes a detailed consideration of any personal care, domestic chores, shopping, and childcare needs of Mrs Dib. She also commented on Ms Lethbridge's report dated 4 May 2015 in relation to which she provided limited agreement. It is noted that Ms Piebenga is a very experienced occupational therapist, having qualified in 1989. The defendant's medical evidence in relation to Manessa Hawchar 1. The defendant relied on a number of medical reports in relation to Manessa. The defendant read three reports of Dr C Rikard-Bell, dated 30 November 2015, 18 September 2017 and 22 February 2018, respectively. 2. In his first report dated 30 November 2015, Dr Rikard-Bell, who is a consultant psychiatrist, noted that he interviewed Manessa and Mrs Dib on 6 November 2015. For the purposes of his report, he was provided with a number of documents including Manessa's Personal Injury Claim Form, the clinical notes from West Hoxton Medical Centre and reports from Dr Hamad dated 14 February 2015 and Dr Akkerman dated 17 March 2015. Dr Rikard-Bell noted that the documents indicated that there was a motor vehicle accident in which Manessa was involved on 26 August 2014 which resulted in an alleged whiplash injury with an anxiety reaction with insomnia, nightmares, phobia of cars, other pain and Manessa wetting herself. 3. Mrs Dib told Dr Rikard-Bell that Manessa had neck and leg injuries and after four months her back became sore. It was alleged that two days following the accident she was taken to hospital and stayed overnight for assessment. She had received physiotherapy and was awaiting psychological treatment. Mrs Dib told Dr Rikard-Bell that the main impact was that Manessa wet herself and was irritable and anxious in the car. She also complained about pain in her legs and her back. 4. Dr Rikard-Bell noted that the pregnancy and birth in relation to Manessa were normal and she was a normal healthy toddler who had been attending preschool since 2015 and appeared to be managing well at school. He noted no relevant past medical history other than Manessa had received treatment for asthma. 5. Dr Rikard-Bell was informed that at night Manessa wanted the light on, she did not sleep well, had sometimes been wetting the bed and was wetting her pants during the day which was stated as being "unusual for her". It was further noted that Manessa claimed that she was anxious when in the car, according to Mrs Dib, and also claims sometimes to have headaches and was given Panadol. 6. Dr Rikard-Bell stated that on examination Manessa presented as a solid five year old girl who was active and interactive. He stated that she did not seem to have any worries or concerns and she was interested in playing. She also did not appear to Dr Rikard-Bell to have any clear view about the motor vehicle accident. When asked about the accident, Manessa, according to Dr Rikard-Bell, did not seem to have a clear idea and it appeared to the doctor that she did not have a good understanding of what he was asking about in relation to the accident or what had happened. It was noted that Manessa tried to describe how her legs and arms and back were sore, as was her neck. However, Dr Rikard-Bell noted that from her movements and interactions it was clear she was not in any pain or discomfort. He also noted that during the interview Manessa requested to go to the toilet and Mrs Dib took her to the toilet and she was brought back without any problems or any indication that she was wetting. 7. Dr Rikard-Bell expressed the opinion that there was no evidence of any psychological injury from his assessment. In his view, the reports about Manessa having some anxiety in the car, wetting and reports of aches and pains did not reach a threshold of psychological disorder. He was of the view that there was no identifiable psychological disorder. Dr Rikard-Bell noted that the history given to him by Mrs Dib about wetting and pain and sleep disturbance did not match the presentation of Manessa on examination. He was of the view that she did not require any psychological treatment or that she would be able to utilise any psychological treatment. 8. In his second report dated 18 September 2017, Dr Rikard-Bell noted that he had interviewed Manessa and both her parents in July 2017 for reassessment. 9. Dr Rikard-Bell was given additional documents to review for the purposes of his report which he sets out in his report. These included Liverpool Hospital notes and documents relating to Manessa's commencement at Sadleir Public School. 10. The history given to Dr Rikard-Bell was that currently Manessa was sleeping reasonably well although she wet the bed most nights and claimed to be scared at night with the anxiety interfering with her sleep. It was also noted that on occasions Manessa wet herself during the day. In relation to car travel, overall Manessa was described as travelling without any problems but she could remember the accident. 11. Dr Rikard-Bell stated that he formed the view that her symptoms were mild and "subclinical". 12. When asked about the motor vehicle accident, Dr Rikard-Bell said that Manessa seemed confused and was not sure whether it was an accident that involved her brother who was stated to have been hit by a car. Dr Rikard-Bell formed the view that Manessa did not have any memory of the accident. 13. Manessa denied any traumatic experiences and stated to Dr Rikard-Bell that she could not remember the accident. 14. Dr Rikard-Bell noted that the major issue of bedwetting was alleged to have occurred after the motor vehicle accident. However, Dr Rikard-Bell noted that bedwetting in itself was not a psychological injury unless it was clearly associated with a psychological disorder. 15. He formed the view that there was enuresis but did not believe that this could be attributed to the motor vehicle accident. While conceding that Manessa may have had an adjustment disorder following the accident he believed that it was fully resolved and that she did not have any recollection of the accident. He stated that he was of the view that the bedwetting and leg pains were not consistent with a traumatic experience from the motor vehicle accident which Manessa did not remember. He believed her prognosis was excellent and her bedwetting was likely to improve with maturity. He said that he was not of the view that there was any psychiatric disorder. 16. Dr Rikard-Bell's third report dated 22 February 2018 involved a consideration of Manessa's psychiatric condition in the light of the report of Dr Gertler dated 13 January 2018, which was provided to Dr Rikard-Bell. He noted that according to Dr Gertler the ongoing complaint was bad dreams with enuresis but Manessa denied feeling frightened when travelling in the car. Dr Rikard-Bell noted that nocturnal enuresis was a common condition in children and was commonly not related to any mental disorder. He stated that on occasions enuresis may be related to a trauma or adverse event but this would be accompanied by other significant symptomatology. 17. Dr Rikard-Bell was of the view that Mrs Dib's description of Manessa being tense and frequently commenting on her mother's driving and telling her to be careful and not drive too fast, did not qualify as a psychiatric disorder. Dr Rikard-Bell also disagreed with the diagnosis of adjustment disorder. He said he did not believe the enuresis diagnosis was necessarily related to the motor vehicle accident on the evidence. His view was that Dr Gertler had attempted to provide a report which took at face value the concern and opinion of Mrs Dib. He was of the view that Dr Gertler was repeating the mother's opinion in relation to Manessa where she was otherwise healthy and well, apart from the enuresis. In conclusion, Dr Rikard-Bell did not alter his opinion that there was no psychological injury to Manessa from the motor vehicle accident. 18. It may accordingly be seen that Dr Rikard-Bell considered the position of Manessa on three occasions with a personal assessment and examination having occurred in 2015 and 2018. On each occasion he formed the view that there was no psychiatric or psychological injury to Manessa arising from the accident. The submissions of the parties 1. The parties made detailed oral and written submissions in relation to the two matters. 2. The plaintiffs' submissions were, in general summary, as follows: 1. Mrs Dib should be accepted as to her evidence. She should be found to be an honest witness; 2. The evidence of Mr Mansour provided support that the accident occurred as Mrs Dib had indicated. Mr Mansour should be accepted as a completely independent witness and as a witness of truth; 3. Mr Safi provided support for the fact that Mr Diab, Mrs Dib and Manessa were all present when he arrived at the scene of the accident. This provided support for the fact that Mrs Dib and Manessa were in the Volkswagen Beetle when it collided with Mr Mansour's car. Exhibit E also supported Mrs Dib's presence in the car; 4. The plaintiffs' claims in relation to the accident are supported by the fact that Mr Mansour's insurer has satisfied the claim for property damage to his car and the statutory declarations attached to the personal injury claim forms; 5. The medical evidence, including the general practitioner notes of Dr Hamad, were consistent with the plaintiffs' complaints of ongoing pain, particularly the claims of Mrs Dib; 6. The pain experienced by Mrs Dib and Manessa is supported by the police record of the reporting of the accident; 7. The plaintiffs' claims are supported by the prescribing of medication by Dr Hamad and by Mrs Dib undertaking a course of physiotherapy; 8. The medical records establish a steady increase in high-strength analgesic/narcotic medication consumption by Mrs Dib. The medications are shown to be prescribed on a repetitive and continuous cycle (submissions paragraph 46); 9. This was confirmed by Mrs Dib's oral evidence on the twelfth day of the trial; 10. The medicolegal evidence in relation to Mrs Dib is extensive and consistent with her case (submissions paragraphs 51-61); 11. Dr Lowy's reports for the defendant are questionable. Dr Lowy fails to provide an appropriate reasoning process for his opinion and to explain his view that the "natural history of such soft tissue injuries" should have led to an early resolution of Mrs Dib's problems. In summary, Dr Lowy's reports are short on analysis and do not properly explain the underlying reasoning for his opinions (submissions paragraphs 67-73); 12. There are also problems with the opinion of Ms Dawn Piebenga, the occupational therapist, who does not adequately identify the research she refers to in relation to either exercise or the management of soft tissue injuries or muscular strain injuries (submissions paragraphs 74-77); 13. The plaintiff Mrs Dib's evidence in relation to domestic assistance was supported by her sister Amne Dib and was detailed and should be accepted (paragraphs 78-91); 14. The treating evidence spanning almost four years of Mrs Dib is very persuasive evidence indicating the severity of her physical problems (paragraph 92); 15. There is similar convincing evidence in relation to the treatment of Manessa (submissions paragraphs 94-101); 16. The evidence supports the award of substantial damages which are set out in the written submissions; 17. The accident should be found to have caused psychological symptomatology in Manessa and caused the bedwetting of which the plaintiff Mrs Dib refers. The evidence of Dr Davis in his reports also supports an award of damages as a buffer for loss of future earning capacity (submission paragraph 98). 1. The defendant's submissions, in general summary, were as follows: 1. The court should not be satisfied that the plaintiffs have discharged their evidentiary onus in relation to crucial factual matters, including that they were passengers in the car alleged at the time of the collision and that they suffered injury, loss and damage as a result of any collision: written submissions paragraph 4; 2. In the alternative, the court should find that the plaintiffs have not established on the balance of probabilities that they have suffered any compensable loss as a consequence of the collision: written submissions paragraph 5; 3. The court would not be satisfied that the plaintiff Mrs Dib has required domestic assistance as claimed or will require domestic assistance into the future. Similar submissions are made about treatment expenses: paragraph 7. The court should find that Mrs Dib was not a witness of truth and should prefer the evidence of Mr Abboud; 4. In relation to Manessa, the court would not be satisfied that Manessa has suffered any injury, loss or damage. Treatment expenses paid so far are relied on as a defence: s 83(5) of the Act: submissions paragraph 8; 5. The plaintiff Mrs Dib had a poor recollection of the accident; submissions paragraphs 10 and 29; 6. Mr Mansour's evidence was inconsistent to some extent with that of Mrs Dib. His evidence as to the presence of a child at the accident was unpersuasive. His contact with Mr Diab after the accident was not properly explained by him: paragraphs 15, 18, 21-23 and 36; 7. Mrs Dib's credit has been significantly impugned: paragraphs 28-34 and 56. In relation to her evidence of the accident, it is inconsistent with the evidence of Mr Mansour: paragraph 33. In the alternative, her evidence should be regarded as completely unreliable; 8. A Jones v Dunkel inference should be drawn in relation to the plaintiffs' failure to call Mr Diab as a witness in their cases: paragraphs 38-39. The plaintiffs submitted that such an inference was not available and should not be made. I am not persuaded that even if available, I should draw that inference. I am not obliged to draw the inference, even if available: Newell v De Costi [2018] NSWCA 49 at [78]-[80]. Mrs Dib and Mr Diab are separated even though apparently living under the one roof. It would arguably have been improper for the plaintiffs' lawyers to approach Mr Diab directly for a statement as he was the defendant. The plaintiffs would have been calling him without knowing his evidence. Overall, a failure by the plaintiffs to call Mr Diab does not appear to me to be unreasonable. I do not regard him necessarily as being in their camp. If called by them, it would have enabled the defendant to cross-examine him on many aspects of the case, including the accident, domestic assistance, Exhibit 2 and the assistance given by Ms Dib. I cannot infer that Mr Diab was not called through fear as to what he might say: Fabre v Arenales (1992) 27 NSWLR 437 at 449-50; 9. The claim of Mrs Dib that she has required domestic assistance since the accident due to her injuries and that this has been provided principally by her sister should be rejected: paragraphs 41 and following. One day after the accident she presented to Dr Hamad who found a full range of movement in her neck and back (paragraph 46). Mrs Dib did not disclose to any of the medico-legal experts the assistance she was providing to her husband from 2014-15 (Exhibit 2) which is inconsistent with her claims of gross disability arising from the accident: paragraphs 50-56. Mrs Dib's claims that she simply signed the second statement dated November 2015 when asked to by her husband at home are "patently untrue" in the light of Mr Abboud's evidence. Mr Abboud witnessed her signature: paragraph 55; 10. Ms Amne Dib should be rejected as a reliable witness in relation to her evidence that she has provided extensive domestic assistance to the plaintiff from August 2014 to date. Her evidence in cross-examination is much more likely to be accurate and reliable as to Ms Amne Dib's ongoing physical problems from June 2014 to after the August 2014 accident: paragraphs 63-65; 11. Mr Abboud should be accepted as a witness of truth in relation to how the two statements from Mrs Dib were obtained: Exhibits 1 and 2. These statements are fundamentally at odds with the plaintiffs' claims for domestic assistance: paragraph 55; 12. The plaintiffs' case on damages primarily rests upon accepting the plaintiff Mrs Dib's evidence as to the severity of the impact, the alleged injuries and the ongoing disabilities. The medical evidence rests upon the accuracy of the histories provided by Mrs Dib. Ms Lethbridge's first report was several months before the November 2015 statement was signed by Mrs Dib. The plaintiff Mrs Dib's medico-legal reports were provided and based upon false histories as to her capacities including an alleged inability to undertake domestic chores: paragraphs 69-73. They accordingly have no evidential value: paragraphs 71-73. The evidence of the plaintiff Mrs Dib and Amne Dib as to gratuitous assistance would not be accepted and therefore the court would not be satisfied that the threshold provided in s 141B of the Act has been met or that future assistance will be required, even commercially. The plaintiff Mrs Dib's claim for past and future treatment expenses should also be rejected. There would be no award for damages beyond the payments made by the insurer as to which there is a statutory defence pursuant to s 83 of the Act: paragraphs 74-76; 13. In relation to Manessa's claim, the objective evidence does not support the claim that Manessa suffered any injury as a consequence of the accident: paragraph 78; 14. Despite Mrs Dib's claim that Manessa started complaining of pain the day after the accident, Mrs Dib did not take Manessa to see Dr Hamad until over one week after the accident. On 1 September 2014 Manessa saw Dr Hamad but only in relation to a common cold. This is inconsistent with the claim that Manessa had suffered injuries and was presenting with symptoms in the week after the accident. See also the Liverpool Hospital notes for 2 September 2014: paragraphs 79-82; 15. The first report of bedwetting in relation to Manessa was on 10 March 2015, over 6 months following the accident. There was no reference to wetting (or the alleged physical) problems in any of the school applications or documents. Dr Davis states that any bed wetting issues had ceased by the time of the first review on 28 April 2015: paragraph 84. It is likely Mrs Dib would have referred to physical problems if in fact Manessa had them at the time: paragraphs 85-89; 16. The accident was extremely minor and Manessa was properly restrained in a child seat at the time. The medical records are also inconsistent with the claimed injuries. The medical opinions in relation to Manessa are dependent on the accuracy of the reporting of symptoms by the parents particularly Mrs Dib. There are no objective signs of injury or disability. The court would not be satisfied that Manessa has suffered any relevant loss beyond the treatment expenses already paid by the insurer: paragraphs 93-95. Medical findings Findings in relation to the medical evidence concerning Manessa 1. I now turn to consider my findings in relation to the medical evidence concerning Manessa. 2. These findings assume that Manessa was in fact a passenger in the Volkswagen Beetle sedan driven by Mr Diab on 26 August 2014 as alleged by the plaintiffs. I will consider this issue further below. 3. In relation to the accident (assuming it occurred), I make the following relevant factual findings concerning Manessa: 1. The collision between the car driven by Mr Diab and the other vehicle allegedly driven by Mr Mansour was on all the evidence a minor one. For these purposes I accept that Mr Mansour was the driver of the other vehicle into which Mr Diab's vehicle collided. As stated above, although he has some difficulties with his recollections, I accept Mr Mansour as a witness of truth. I accept his evidence as in general terms truthful and reliable. Mr Mansour has variously described the collision in the following terms: Mr Mansour said in chief that his vehicle was "just bumped a little bit forward" (T25.36); he stated "to me it [the impact] was fairly light" (T32.11); Mr Mansour said "it was a small accident" (T33.41); Mr Mansour said "it wasn't a major accident, in my eyes" (T36.5) Mr Mansour said "it was a minor accident" (T48.2); Mr Mansour said his car was "a little bit damaged" (T48.8); there was limited damage to his car: T48.16–.21. The documents in Exhibit 8 support this description. Mrs Dib did not give any compelling evidence to the contrary. Although there was evidence from Mr Safi that the Volkswagen was loaded onto a tow truck (T68.25), there is no compelling evidence that the damage to the Volkswagen was at all extensive. There is no evidence as to why the car was loaded onto a tow truck. Based on all these matters, I find that the accident was a minor one with a slight impact between the two colliding vehicles; 1. The evidence establishes that Manessa, as a three-year-old, was in a child car seat at the time of the accident: T87.2; T88.41; T88.48. I accept the evidence of Mrs Dib on this issue; 2. Although Mrs Dib claimed that Manessa complained of pains about two days after the accident, there is no record of her referring to the accident or the pains when she took Manessa to see Dr Hamad for a common cold on 1 September 2014, five days after the accident: Exhibit B page 42. For the reasons given in Mason v Demasi, I exercise some caution in relation to the medical notes, particularly as the evidence establishes that the next day Manessa was taken to Liverpool Hospital where a whiplash injury to the neck was diagnosed: Exhibit B page 49; 3. The first reference to incontinence in relation to Manessa or any related condition in the notes of Dr Hamad was on 10 March 2015, several months after the accident: Exhibit B page 40. If the symptoms had been concerning and had occurred earlier I think it likely that Mrs Dib would have consulted Dr Hamad promptly; 4. Despite Mrs Dib's assertions of the complaints made by Manessa, she did not refer to any of the alleged pains or other physical complaints relating to Manessa in any of the school application forms, despite the importance of them to Manessa's comfort and safety during school activities; 5. There are no investigations showing relevant radiculopathy in Manessa's neck or back before the court; 6. On Mrs Dib's evidence, Manessa had an unhappy time at Sadleir Public School but her happiness and social experiences have improved substantially upon moving to XXX Public School; 7. Much of the history of alleged complaints by Manessa is given by Mrs Dib. This is not surprising having regard to Manessa's age. Issues of the reliability of Mrs Dib generally are very relevant. As set out above, I have found Mrs Dib to be an unreliable witness. 1. The nature of the accident, suggesting a very slight impact in the collision, is relevant to an assessment of Manessa's likely injuries and disabilities, if any, but is not determinative: El-Mohamad v Celenk [2017] NSWCA 242 at [16]. 2. I will first consider Manessa's alleged physical injuries and disabilities. 3. In his examination for the Personal Injury Claim Form Medical Certificate on 11 September 2014, Dr Hamad diagnosed a whiplash neck injury with anxiety reaction. A similar diagnosis was made at Liverpool Hospital: Exhibit B page 69. 4. In his medical report dated 17 February 2015, Dr Hamad referred to the presentation and complaints of Manessa at a consultation with him on 5 September 2014. He noted that Manessa was very tender on the lower and mid-cervical spine. He also noted tenderness in the left shoulder but with a good range of movement. He diagnosed a whiplash injury to the cervical spine with facet joint dysfunction and an anxiety reaction due to the accident. His prognosis was good given enough time and physiotherapy treatment. He also referred to other attendances and expressed the opinion that Manessa was still suffering from neck and left shoulder pain and insomnia. 5. I have set out Dr Davis' opinions in substantial detail, above. It was clear that Dr Davis relied heavily on the complaints as stated by Mrs Dib, who I have found to be an unreliable witness in relation to significant aspects of her evidence. However, there was some complaint by Manessa herself as recorded in the first report. Most of Dr Davis' findings in his first report were normal and he diagnosed a whiplash associated disorder with a reasonable prognosis. In his second report, Dr Davis said there was no evidence to suggest any form of radiculopathy and Manessa's prognosis was for possible variable symptoms of a minor nature, although he again referred to the possibility of some spine discomfort in the future. 6. It is clear that the findings of Dr Davis and Dr Hamad in relation to physical injuries to Manessa were of relatively minor soft tissue injuries. 7. The defendant did not rely on any medical reports solely in relation to Manessa's physical injuries. 8. However, the reports of Dr Rikard-Bell suggest that Manessa appeared to that doctor to be active and interactive. Dr Rikard-Bell did not refer to any obvious physical limitations and in his second report dated 18 September 2017, reported that Manessa did not seem to recall the accident. 9. Having regard to the above material, I find that Manessa had a whiplash-type neck injury and minor soft tissue injuries. I find that any physical injuries to Manessa arising from the accident were minor and any possible symptoms for the future are also minor. There is no suggestion of any form of radiculopathy. The minor nature of the impact and the fact that Manessa was in a child safety seat would indicate the injury was of a whiplash type, as is clear on the evidence. The report of Dr Davis is in my view inconsistent with Mrs Dib's assertions as to the ongoing complaints or physical problems by Manessa. In any case, I find Mrs Dib to be an unreliable witness and she gave Dr Davis the history in relation to Manessa. 10. The school records are also inconsistent with any ongoing serious pain or restrictions. If these matters existed, it is highly likely Mrs Dib would have informed the various schools, as she did with Manessa's asthma problems, to ensure her welfare and safety. 11. In the end, I am satisfied that Manessa suffered a limited whiplash type injury in the accident with no reported radiculopathy and that any injuries had largely settled by the end of 2014 and any ongoing limitations or pain since that time are very minor and can be dealt with by common non-prescription analgesia when symptoms occasionally arise. Physical complaints relating to Manessa were largely relayed by Mrs Dib who I find to be an unreliable witness. The complaints of Manessa herself, when looked at in terms of her presentation, also suggest that the injuries were very minor. 12. In relation to the allegations of psychiatric injury, the court has the reports of Dr Gertler and Dr Rikard-Bell. I have summarised these reports above. 13. In my view, the reports of Dr Rikard-Bell and his findings that any adjustment disorder that Manessa may have had following the accident on 26 August 2014 is fully resolved, should be preferred for the following reasons: 1. The first report of any incontinence in Manessa was on 10 March 2015 in the records of Dr Hamad. This is well after the accident; 2. I accept Dr Rikard-Bell that on his examination, Manessa had no recollection of the accident; 3. The school documents do not record any significant or persistent problem with enuresis; 4. The ultrasound performed of Manessa's bladder suggested no underlying problem; 5. On examination, Dr Rikard-Bell reported that Manessa was active, her affect was reactive, she seemed happy and there was no cognitive disturbance. In addition she did not seem to have any worries or concerns and was interested in playing; 6. I accept Dr Rikard-Bell's opinion that any reports of anxiety in the car and wetting did not reach a threshold of psychological disorder; 7. Mrs Dib's complaints about Manessa's pain, wetting and sleep disturbance did not match the presentation to Dr Rikard-Bell of a child who appeared to be happy and relaxed and able to go to the toilet with her mother without any signs of any physical discomfort; 8. I accept Dr Rikard-Bell's opinion that bed wetting in itself is not a psychological injury unless it is clearly associated with a psychological disorder; 9. I accept Dr Rikard-Bell's opinion in his second report that any bed wetting is likely to improve with maturity; 10. It is recorded in Dr Gertler's January 2018 report that Manessa denied to Dr Gertler feeling frightened when travelling in the car; 11. I accept Dr Rikard-Bell's opinion that nocturnal enuresis is a common condition in children and is commonly not related to any mental disorder. I accept Dr Rikard-Bell's comment in his third report that Dr Gertler's report attempts to provide a report which takes at face value Mrs Dib's concern and opinion where that is not reflected in the objective symptoms or comments from Manessa; 12. The complaint of nightmares in Dr Gertler's report is not established to be anything different to what would normally be associated with sleeping problems with small children. 1. For these reasons I prefer the opinion of Dr Rikard-Bell that Manessa is currently not suffering from any psychiatric or psychological disorder requiring further assistance. Medical findings in relation to Mrs Dib 1. The factual matters which I have referred to above in relation to Manessa are also relevant to Mrs Dib particularly: 1. That the collision was a minor one; 2. I also note that no ambulance was called to the scene; 3. I note that no police attended; however, Mrs Dib said that her symptoms only emerged on the night of the accident; 4. The evidence in some of the medical reports that the car in which Mrs Dib was travelling may have hit a light pole is inconsistent with the other evidence particularly that of Mr Mansour. I reject the evidence that there was a collision with a pole. I prefer Mr Mansour's evidence on this point. 1. Mrs Dib claims to have been severely injured and disabled in the accident. The injuries and pain which she claims she suffered are said to have led to the position where she has been able to do very little house work or domestic duties or childcare and only in recent times light house work. This evidence in relation to the major head of damages claimed by her should be contrasted with: 1. The severity of the impact in the accident which I have found, as referred to above; 2. The radiological evidence which I have set out above and which is usefully summarised in the various medical reports: see for example Dr Marsh's first report; 3. The contents of the March 2014 and 23 November 2015 statements, which Mrs Dib signed, concerning her husband's motor vehicle accident, and the assistance which she provided to him after that accident until at least 23 November 2015. The provision of such extensive domestic assistance by Mrs Dib to Mr Diab after August 2014 as asserted in the later statement is substantially inconsistent with Mrs Dib's evidence and the domestic assistance allegedly provided to her by Ms Amne Dib and others. I accept the accuracy of the statements for the reasons which I have given; 4. The evidence given by Ms Amne Dib in cross-examination is inconsistent with Ms Amne Dib providing extensive domestic assistance to the plaintiff as Mrs Dib asserts. 1. The absence of clear radiological evidence of any serious injury makes the accuracy and reliability of Mrs Dib's history as given to the various medical practitioners important. The plaintiffs rely on the extensive history of consultations with Dr Hamad and the medico-legal records and physiotherapy records. 2. The court is faced in the light of the above matters with a choice between the reports of Dr Davis who has found that Mrs Dib had mechanical trauma to her upper and lower spine and mild bursitis in the left shoulder, probably radiating from a neck injury, the report of Dr Gibson who found a musculo-ligamentous strain in the cervical and lumbar spine, a resolved strain in the thoracic spine and soft tissue injury in the left shoulder, the report of Dr Marsh who found limited injuries and that of Dr Lowy who found there was significant exaggeration by Mrs Dib and that she currently displays no objective signs of any injury. It is noted that Dr Marsh also found exaggeration of symptoms by Mrs Dib. This choice has to be made in the light of the fact that the doctors relied on a history of pain, restriction and disability provided by Mrs Dib who I have found to be an unsatisfactory and unreliable witness. 3. Taking into account all of the matters which I have referred to above and the submissions of the parties, I prefer the reports of Dr Lowy for the following reasons: 1. The reports and conclusions of Dr Lowy are consistent with the minor nature of the collision established on the evidence; 2. The reports are consistent with the domestic activities undertaken by Mrs Dib for Mr Diab referred to in the 23 November 2015 statement signed by Mrs Dib: Exhibit 2. I find this statement is more likely to be accurate than Mrs Dib's oral evidence; 3. The reports appear to be consistent with the radiological investigations: see Exhibit A page 81, Dr Marsh's first report and Ms Piebenga's report at pages 44-45. Despite Dr Davis's opinion and the opinion of Dr Gibson, I find the ultrasound of the left shoulder dated 30 October 2015 to be inconclusive as to its relation to the accident. Dr Marsh found the mild thickening of the bursa was "unlikely to have been of any significance." The opinions of the doctors relied on by the plaintiff were expressed to be based partly on the histories provided by Mrs Dib. I have found her evidence to be generally unreliable. I find that the histories given to the plaintiff's doctors for the purposes of their reports are unreliable; 4. The objective signs are clearly consistent with relatively minor and limited soft tissue and whiplash-type injuries arising from the accident. I note the opinion in Dr Hamad's report, the plaintiff's treating general practitioner, dated 20 April 2015 (Exhibit A page 85) that he would expect the injuries to settle in about three months; 5. The presentation of Mrs Dib as recorded in Dr Lowy's 3 April 2017 report is inconsistent with the injuries claimed by Mrs Dib and the conclusion of Dr Davis. I accept the opinion of Dr Lowy that in accordance with the usual natural history of such soft tissue injuries, healing and resolution could be expected to occur within several weeks of the accident and in this case by the end of 2014; 6. In their submissions, counsel for the plaintiffs criticized Dr Lowy's reports as lacking in proper reasoning: submissions paragraphs 68-73. I do not accept those submissions. Dr Lowy clearly has expertise. He concluded that the injuries were of a whiplash and soft tissue type, thus supporting the plaintiffs' submissions that Mrs Dib suffered injury in the accident: submissions paragraph 67. I do not consider it necessary for Dr Lowy to explain in further detail his view that soft tissue injuries of the type suffered should have resolved within a few months as the "natural history of such soft tissue injuries"; 7. Similarly, I reject the criticism of Ms Piebenga's report: submissions paragraphs 74-77. Ms Piebenga's expertise in my view allows her to comment on the desire for exercise as part of recovery for soft tissue injuries; 8. It is noted that neither Dr Lowy nor Ms Piebenga was subpoenaed by the plaintiffs for cross-examination on their reports. 1. In the end, in my view, the opinion of Dr Lowy is far more consistent with the objective evidence both on examination, as recorded by him, and in the radiological evidence: see his 3 April 2017 report paragraph 15. 2. I find that the physical injuries allegedly suffered by the plaintiff, Mrs Dib, had largely resolved at the latest by the end of 2014. Any symptoms after that are likely to have been very minor and transitory and could be dealt with by occasional non-prescription analgesia. In my view and I find, the plaintiff's continued complaints of pain to doctors after the end of 2014 are greatly exaggerated and unreliable. I find further for the same reasons that if Mrs Dib ingested the medicine she was prescribed as she claims after the end of 2014, it has no reasonable connection to any injuries which occurred in the accident of August 2014. I also find that Mrs Dib's claims that her injuries prevented her undertaking domestic duties from the day of the accident should be rejected. Exhibit 2 should be accepted as stating the true position. Ms Amne Dib was unable to provide the domestic assistance Mrs Dib claims. This undermines the reports of Dr Davis, Dr Marsh and Ms Lethbridge who relied on the accuracy of the histories provided by Mrs Dib. Did an accident occur on 26 August 2014 as claimed by the plaintiffs? 1. The clear evidence of Mrs Dib was that she and her daughter were in the Volkswagen Beetle when it struck Mr Mansour's car on 26 August 2014. 2. Mr Mansour gave evidence in chief that there was a lady present at the time of the accident and he thought there was a child present but he could not recall 100% as to the child: T27.44. He gave evidence that the lady was standing next to Mr Diab when they were exchanging details on the side of the road after the accident: T27.47. Although extensively cross-examined later by counsel for the defendant, Mr Mansour stood by his evidence that a woman was present and he thought there was also a child, although he could not be 100% certain: T48-T50 and T32.39-T33.43. See also Exhibit E which supports his evidence. 3. Although there was an attack on the credit of Mr Mansour by counsel for the defendant, I found him to be an honest and believable witness who, in my view, was doing his best to tell the truth having regard to the limits of his recollection of the day when, as he stated, he thought there was only a minor accident. I accept Mr Mansour's evidence in relation to the presence of Mr Diab, a woman and, to the best of his recollection, a child. 4. Mr Safi's evidence was that Mr Diab, Mrs Dib and Manessa were present at the location when he arrived as well as the owner of the car: T66.30. Although Mr Safi was challenged in relation to his recollection by counsel for the defendant, he stood by his evidence. 5. I take into account that Mr Safi is related to the plaintiffs and I accordingly view his evidence with some caution. 6. Clearly, Mrs Dib's evidence was that she and her daughter were present during the accident. I also look at her evidence with some considerable caution, having regard to the findings which I have made above as to her reliability and her recollections. 7. Taking into account the various submissions which have been made and all of the evidence, I am satisfied that Mrs Dib and Manessa Hawchar were travelling in the Volkswagen on the day of the accident and that they were in the car when the accident occurred. Also, although Mr Mansour did not have a strong recollection of the accident, I accept his evidence that it was a small accident (T33.41), there was a "fairly light" impact (T32.11), that his car would have "jumped a little bit" from the bump (T32.15), that he did not report the matter to police because he saw no need to do so (T35.3) and that the damage to the car driven by Mr Diab did not seem significant to Mr Mansour (T36.4). In the light of this evidence I find that the accident was a very minor one and that the collision involved a slight impact at low speed, although it was raining. See also the documents in Exhibit 8 which support this conclusion. Duty of care and breach 1. In accordance with Section 3B(2)(a) of the Civil Liability Act 2002 (NSW) ("CLA"), Divisions 1-4 and 8 of Part 1A of the CLA apply to "motor accidents". 2. Therefore, in ascertaining whether a driver of a motor vehicle has breached his or her duty of care and whether any breach so found was causative of any injury suffered by the plaintiff in any motor vehicle accident, the court must apply the sections in those Divisions including ss 5B, 5C and 5D. 3. In the present case, the evidence as a whole establishes that Mr Diab did not apply his brakes appropriately or was travelling too fast to avoid colliding with the rear of the vehicle driven by Mr Mansour. The duty of the driver of a motor vehicle to users of the roadway, including pedestrians or other vehicle drivers, is to take reasonable care for their safety having regard to all the circumstances of the case. Under the common law and the CLA, the standard by which reasonable care is measured for the driver of a motor vehicle is an objective and impersonal one to be addressed prospectively and by reference to what a reasonable driver in the defendant's circumstances would have done, if anything, by way of response to any foreseeable risk of injury or sources of danger to other road users: Marien v Gardiner [2013] NSWCA 396 at [33]-[37]; Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 at [142]; Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at [11]-[12]. 4. Sections 5B and 5C of the CLA are as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. Applying s 5B of the CLA to the facts of this case: 1. The risk of the defendant's vehicle hitting Mr Mansour's vehicle and causing injury to either the occupants of Mr Mansour's vehicle or the occupants of his own vehicle if the defendant did not stop or take evasive action or reduce his speed was clearly a foreseeable risk, being a risk of which the defendant ought to have known; 2. The risk was clearly not insignificant. Mr Mansour's vehicle was directly in front of the defendant's vehicle and the circumstances therefore required him to halt and to reduce his speed in the light of the traffic and the traffic lights; 3. In all the circumstances, a reasonable person in the defendant's position would have taken the precautions of slowing down, braking and stopping in a slow and cautious manner; 4. There was a high probability that a collision would occur if care was not taken by the defendant; 5. The harm which could occur if care was not taken to slow down and stop was potentially serious; 6. The burden of taking precautions on the defendant to avoid the risk of harm by slowing down and stopping his vehicle was not significant; 7. The social utility of the defendant in driving his car with his family to KFC for dinner was not such that the risk of harm created should be excused. 1. It is clear that the defendant should have driven carefully and should have taken all necessary steps to stop his vehicle in all the circumstances. It is not suggested that the collision was unavoidable, for example by Mr Mansour swerving in front of the defendant's vehicle. 2. Accordingly, in my view the defendant failed to take reasonable care in all the circumstances for the safety of the plaintiff, Mrs Dib, and Manessa Hawchar. A reasonable driver would clearly have taken all necessary steps to slow down and stop the vehicle to avoid a collision. Accordingly, I find that there was a breach of the duty of care owed by the defendant to the two plaintiffs in the present case for the reasons given. Causation 1. Sections 5D and 5E of the CLA provides as follows "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 1. Accordingly, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 2. The issue of factual causation to be decided in accordance with s 5D(1)(a) of the CLA involves the application of a "but for" test of causation. That is, a determination that in accordance with the section that the negligence was a necessary condition of the occurrence of harm is a determination on the balance of probabilities that the harm in fact occurred and would not have occurred absent the negligence: Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 at [18]; Curtis v Harden Shire Council [2014] NSWCA 314 at [14]-[22] per Bathurst CJ; at [189]-[198] per Beazley P and at [319]-[324] per Basten JA. 3. The question which thus arises in the present case is whether the breach of duty of care by the defendant caused the collision and caused the injuries of which the plaintiffs complain. In my view, but for the breach of duty in the present case, the collision would have been avoided. Further, the plaintiffs would not have suffered any injuries. 4. Accordingly, causation is established in the present case. In the circumstances of this case there is no reason why it is not appropriate for the scope of the defendant's liability to extend to the harm so caused and there is no reason why responsibility for the harm should not be imposed on the defendant: s 5D(1)(b) and 5D(4) of the CLA. Contributory negligence 1. No contributory negligence is alleged in the present case. Damages Introduction 1. It is now necessary to turn to the question of damages in the light of the breach of duty of care which I have found established in relation to the plaintiffs. My medical findings are important to this analysis. I have found that each plaintiff suffered injury in the accident and thus the tort of negligence is established. 2. As stated above, neither plaintiff was assessed as having a greater than 10% whole person impairment as a result of the accident. Accordingly, no damages are to be awarded for non-economic loss. 3. The defendant submitted that either no damages should be awarded to the plaintiffs or that their damages should be limited to the treatment expenses which have already been paid by the defendant. No evidence was before me as to those treatment expenses. The plaintiffs submit that they are entitled to substantial damages which I set out in the following table: Head of damage Mrs Dib Manessa Past out-of-pocket expenses • Section 83 payments $2,372.70 To be determined • Payments made by Medicare $7,452.40 $302.40 Future out-of-pocket expenses • Future consultations with general practitioner Dr Hamad once per month for life $9,933.34 • GP consultations with Dr Hamad quarterly to age 18 $1,475.77 • Specialist consultations with Dr Darwish quarterly for the next three years $2,799.99 • Ongoing medication • Medication buffer - occasional Panadol and deep heat $750.00 • The four medications she is currently taking $6,300.33 • 12 physiotherapist treatments per year for two years $1,949.77 • Gym programme $2,700.00 • Ongoing gym membership for two years $2,400.00 • Total gym membership Total $33,623.43 Past domestic assistance • At $25 per hour for seven hours per week from the date of accident to the date of judgment $230,168.40 Nil • future domestic assistance at $33 per hour for seven hours for life Future economic loss buffer $50,000.00 Past out of pocket expenses 1. The accident was a minor one. I have also preferred the opinions of Dr Lowy and Dr Rikard-Bell. It was reasonable for the plaintiffs to attend their general practitioner and to be referred for radiological investigation. Limited physiotherapy was in my view justified in the case of Mrs Dib until the end of 2014. However, I have found that the plaintiffs' medical conditions had largely settled no later than the end of 2014. Complaints by Mrs Dib of serous pain, restrictions or disabilities after that time are neither reasonable nor justified nor established on the evidence. Mrs Dib is, in my view, for the reasons I have set out earlier, an unreliable witness and her histories as provided to medical practitioners must be treated with real caution and not generally accepted. The taking of occasional non-prescription analgesia should be accepted as warranted if symptoms arose from January 2015. I specifically reject that the taking of prescription medicine by Mrs Dib from January 2015 was reasonable or necessary for any injury arising from the August 2014 accident. 2. I think that medical appointments checking on Manessa were reasonable until mid-2015 having regard to the fact she is a child and had complained of some pain. 3. My findings should allow an agreed calculation of any loss taking into account the s 83 payments. Future out-of-pocket expenses 1. I have found above, that any pain and restrictions arising from the accident had largely resolved for Mrs Dib by the end of 2014. Although the position is a little less clear for Manessa Hawchar, I find that any residual complaints after early 2015 were minor although medical checks were reasonable until mid 2015. 2. I have found that both the plaintiff, Mrs Dib, and her sister Ms Amne Dib were unreliable witnesses who should not be accepted in relation to the claims concerning domestic assistance. 3. In my view, having regard to the evidence and my findings, I accept the medical evidence of the defendant and reject the plaintiffs' medical evidence to the extent that it suggests that there was any continuing substantial medical restrictions or pain in either plaintiff from January 2015. 4. The various medical opinions on behalf of the plaintiff, Mrs Dib, and her complaints to her general practitioner, rely on the accuracy of the complaints of the plaintiff Mrs Dib. I find that she is an unreliable witness and accordingly little weight can be given to her accounts of her continuing restrictions and pain from January 2015. I accept that there may be occasional symptoms of pain continuing to arise from the accident but these are minor and do not in my view impact upon the activities of either the plaintiff, Mrs Dib, or the child Manessa. Doing the best I can on the evidence, I would allow $400 for future out of pocket expenses for non-prescription analgesia for each plaintiff. Past loss of earning capacity 1. No claim is made for either plaintiff in relation to past loss of earning capacity. Future loss of earning capacity 1. No claim for future loss of earning capacity is made in relation to Mrs Dib. A buffer is sought in relation to future loss of earning capacity concerning the child Manessa. 2. Section 126 of MACA provides as follows: "126 Future economic loss—claimant's prospects and adjustments (cf s 70A MAA) (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 1. Dr Davis in his reports expressed the opinion that in the future long periods of static loading of Manessa's spine may result in some discomfort, particularly with computer work. The possibility of further restrictions is relied upon by Manessa in seeking a buffer of $50,000. In his first report Dr Davis indicated that the discomfort during static loading may be some disadvantage in Manessa's choice on the open labour market in the future. 2. In New South Wales v Moss (2000) 54 NSWLR 536 Heydon JA stated as follows at [70]–[71]: "[70] First, damages to compensate for that part of reduced economic capacity which will be reflected in the future are sometimes analysed as being one type of "general damages". Like other types of "general damages", as Fullagar J said in Paff v Speed at 559, they are "of their very nature, incapable of mathematical calculation and (although the expression is apt to be misleading) commonly very much 'at large'. They are also at large in the sense that a jury has, in serious cases, a wide discretion in assessing them". In Russell v J Hargreaves & Sons Pty Ltd [1957] QSR 440 at 445, Taylor J said: "Since … it is impossible to prescribe fixed or precise standards for the translation into terms of money of physical injuries and pain and suffering and varying degrees of physical incapacity, it is inevitable that individual opinions as to what amount may be said to constitute full compensation in any particular case will vary. Indeed within the bounds of reasonableness they may vary greatly." The field is an "uncertain" one: Breska v Lysaghts Works Pty Ltd (1956) 74 WN (NSW) 168 at 169, per Street CJ. [71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed at 566, per Windeyer J. Evaluation of the worth of a loss of capacity to earn — of a lost chance to earn — is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis — that the plaintiff will have undiminished capacity — which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. H Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, at 91 [1.9.18], said: "it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act". In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639, Brennan J and Dawson J said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history". They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages …". The majority (Deane J, Gaudron J and McHugh J) in Malec v J C Hutton Pty Ltd said (at 643) that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry — the process of estimation of possibilities — is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender material[s]": Callaghan v Wm C Lynch Pty Ltd (1962) 79 WN (NSW) 830; [1962] NSWR 871 at 877, per Evatt CJ, Herron J and Sugerman J. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd (1963) 63 SR (NSW) 598 at 607; 80 WN (NSW) 999 at 1006, per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffmann (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259, per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792, per Vaughan Williams LJ Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 55 ALJR 371at 376; 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570: "when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff's handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there is no established range or standard against which to measure the judge's award."" 1. In Sretenovic v Reed [2009] NSWCA 280 McColl JA (with whom Beazley JA agreed) considered the assessment of future loss of earning capacity. Her Honour stated as follows at [79]–[81]: "[79] I turn then to the issue of future economic loss. The primary judge's finding in this respect was also tainted by reason of the erroneous findings I have identified. It was also, in my view, inappropriate for his Honour to assess the impairment of the respondent's future earning capacity over the entire period of his anticipated working life. Rather this was a case where, as the appellants submitted, a buffer should have been awarded. [80] Compensation for lost earning capacity is awarded because diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347). It is incumbent upon the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412). [81] It is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case where the plaintiff has an earlier demonstrated earning capacity, the court undertakes a comparison between the economic benefits the plaintiff derived from exercising that earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K-mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v R [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future." 1. The Court of Appeal in the Sretenovic case thus states that the award of a buffer or cushion to a plaintiff is reserved only in situations where the precise loss of the plaintiff is difficult to determine and there is a "smallish risk" that the plaintiff's employment prospects will come to an end or have been reduced by the tort. 2. In Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 McColl JA stated the following at [6]–[9]: "[6] The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows: 84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3]–[5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v R [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future", but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present. [7] The award of a buffer for future economic loss in circumstances "where earning capacity has unquestionably been reduced but its extent is difficult to assess" reflects the proposition that, to paraphrase, the want of precise evidence "does not necessarily result in non-recovery of damages": New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic"; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing). [8] While, as Giles JA said in the Nominal Defendant v Lane (at [67]), "s 126 is presumably intended to promote intellectual rigour", the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour, an element of impression must be involved. The claims assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise. The appellant has not identified any legal error in the award of the buffer. [9] The foregoing should not be seen as a licence to award buffers indiscriminately. Where the evidence enables a more certain determination of the difference between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising that capacity after injury, recourse should not ordinarily be had to the award of damages for future economic loss by way of a buffer. Each case must turn on its own facts." 1. Basten JA stated the following at paragraphs [27]–[30]: "[27] In summarising a comprehensive review of the principles to be applied in this area, Heydon JA stated in Moss at [87]: The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. To the extent that this court suggested in Nominal Defendant v Livaja [2011] NSWCA 121 at [39] that hypothetical elements should be established on the balance of probabilities, those statements were wrong and should be disregarded. [28] Structural difficulties with the form of s 126 (and the more generally applicable equivalent provision, namely s 13 of the Civil Liability Act 2002 (NSW)) have been the subject of comment in numerous cases. It has been pointed out that the calculation of future economic loss depends not only upon assumptions about unimpaired future earning capacity, but also upon the extent to which earning capacity is, or is likely to be, diminished as a result of the injury. Section 126 makes no direct reference to the latter limb of the calculation, unless subs (3) is addressed to the broader set of assumptions and not limited to those referred to in subs (1). [29] Further, subs (2) has been understood as referring, at least primarily, to the reduction commonly allowed for "vicissitudes" which, absent particular features warranting some other approach, is usually fixed at 15%. In circumstances where, for example, the employment situation of the claimant is inherently unstable, a greater percentage is allowed. In Amoud v Al Batat [2009] NSWCA 333 I explained my understanding of s 126(2) in the following terms at [25]: Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2). [30] The lacuna in s 126 may have occurred because the drafter was following the reasoning in Malec . The adjustment which was required in that case was to take account of the possibility that factors unconnected with the injury might have resulted in the same disability in any event: at 645. That problem aside, there is a point (which may be differently assessed by different courts) beyond which the selection of a figure for economic loss is so fraught with uncertainty that the preferred course is to award a lump sum as a "buffer", without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage. The suggestion that such a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]–[5]. Since then, a similar approach has been adopted in at least 20 cases in this court: see, eg, Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [33] (Hodgson JA; Mason P and McColl JA agreeing); Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453; [2008] Aust Torts Rep 81–949, at [84] (McColl JA; Mason P and Beazley JA agreeing); Zreika v New South Wales [2009] NSWCA 99 at [29] (Ipp JA; Beazley and Macfarlan JJA agreeing); Gulic v O'Neill [2011] NSWCA 361 at [67]–[69] (Whealy JA; Campbell JA and James J agreeing). It was not submitted that in principle such a course was not open to the assessor, acting in conformity with s 126. Nor was it contended that s 126 varies general law principles in any material respect. Such a contention would involve a challenge to the reasoning in Penrith City Council at, for example, [58] (McClellan AJA)." 1. Macfarlan JA stated as follows at paragraph [66]–[67]: [66] I agree with the judgment of Basten JA but add the following observations in relation to the buffer that the assessor awarded in respect of future economic loss. [67] It has been accepted since Penrith City Council v Parks [2004] NSWCA 201 that it is not inconsistent with s 13 of the Civil Liability Act 2002 or the similarly worded s 126 of the Motor Accidents Compensation Act 1999 for a buffer to be awarded to compensate an injured person for the possibility that he or she may suffer economic loss in the future as a result of a loss of capacity to earn income. In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432, Mason P spoke of such an award being usually reserved for "the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future" (at [2]). 1. Accordingly, I have to assess whether there is appropriate evidence to establish a "possibility" or smallish risk, that the plaintiff Manessa may suffer some economic loss in the future as a result of the matters referred to by Dr Davis in his reports. 2. I am not satisfied that there is such a risk established. 3. It is unclear what paid work Manessa will undertake in the future, if any, and in particular, whilst she may need to use a computer for her work, there is no evidence other than conjecture that it will involve long periods of static loading in her spine. I did not find the comment by Dr Davis in his two reports as being persuasive that there was a risk which was other than conjectural in relation to this matter and in my view the matter raised does not fall within the authorities which I have set out above. Dr Davis relied on there being an accurate history from Mrs Dib. I am not satisfied that I can conclude within the authorities that having regard to my medical findings concerning Manessa, there is a smallish risk that the realistic choices available to Manessa in the future will be relevantly limited. I accordingly reject the claim for a buffer. Domestic assistance 1. Mrs Dib makes a claim for past domestic assistance and for future domestic assistance. 2. The evidence of Mrs Dib is that domestic assistance has been provided to her on an extensive basis from the day immediately after the accident to date. Her evidence is that her condition has worsened and this has required further assistance. The assistance consists of assistance in relation to all her domestic duties including cooking and cleaning and childminding services. She states that the care has been provided by her sister, her mother and to some extent by her husband, the defendant, and by her mother-in-law or her sister Amne Dib's children. 3. I have found that the plaintiff is an unsatisfactory and unreliable witness. Her evidence that she has been severely disabled as a result of the accident and has been unable, for a lengthy period, to do household work other than light duties, is inconsistent with her signed statement dated 23 November 2015 which became Exhibit 2. I have found that the statements were made at an earlier point in time when her recollection was more likely to be correct than her oral evidence before me. The statement which is Exhibit 2 suggests that Mrs Dib was providing substantial domestic assistance to her husband in the period from August 2014, being the date of the accident, to November 2015. I prefer that evidence. She was more likely to be truthful in relation to her separated husband's claim where she had less of an interest than her own claim. 4. I am satisfied from the entirety of the evidence of Ms Amne Deb, particularly her cross-examination, that it is highly unlikely that she provided any domestic assistance of any substance to the plaintiff from 26 August 2014 because of her existing physical problems and restrictions arising from the June 2012 accident. 5. I did not receive any evidence from the defendant or the mother of Mrs Dib as to any assistance allegedly provided by them to Mrs Dib. I am not willing to accept the evidence of the plaintiff Mrs Dib or her sister Amne Dib that such assistance was provided as a result of the accident. 6. I also found Ms Amne Dib to be an unreliable witness for the reasons which I have set out above. 7. Having regard to all of these matters I am not satisfied as to the following: 1. That there was any need for domestic assistance to be provided to the plaintiff, Mrs Dib, from soon after the accident and certainly from the end of 2014; 2. That any significant domestic assistance was provided by Ms Amne Dib, Mrs Dib's mother, Amne Dib's children or the defendant to the plaintiff, Mrs Dib, at any stage after the August 2014 accident; and 3. There was or is any need for any additional domestic assistance to be provided to the plaintiff infant, Manessa Hawchar, in addition to that which she was provided by her mother prior to the accident. 1. Section 141B(1) to (3) of MACA provides as follows: "141B Maximum amount of damages for provision of certain attendant care services (cf s 72 MAA) (1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. (3) Further, no compensation is to be awarded unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months." 1. In my view, and I find, no attendant care services within the Act were provided to either of the plaintiffs satisfying s 141B(3). In my view, either no services were provided to either plaintiff from the end of 2014, or that if they were provided, they were not reasonably provided, or that they were provided for at least six hours per week. Accordingly, the requirements in s 141B(3) are not satisfied as to either plaintiff. 2. I also find that there is no future need for domestic assistance as the plaintiffs' conditions have largely resolved apart from possible occasional slight and temporary aches or pain. 3. Therefore, I would allow no sum to Mrs Dib for domestic assistance within the Act. Disposition 1. The defendant has a defence for any treatment expenses already paid in relation to the plaintiffs. This therefore needs to be taken into account. 2. I will hear from the parties as to the payment of Manessa Hawchar's damages. 3. I accordingly make the following orders in the matter relating to Mrs Dib: 1. The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days; 2. The question of costs is reserved; 3. Liberty to apply in relation to the issue of the costs of the proceedings; 4. Exhibits to be retained until further order. 1. I make the following orders in the proceedings concerning Manessa Hawchar: 1. The parties are to bring in agreed short minutes of order consistent with the reasons for decision of Dicker SC DCJ within 7 days; 2. The question of costs is reserved; 3. Liberty to apply in relation to the issue of the costs of the proceedings; 4. Exhibits to be retained until further order. ********** 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: 14 August 2018