Marhaba v Chen [2024] ACTSC 241
Key takeaways
- Using expert evidence from a biomechanical engineer, coupled with alleging that a plaintiff has questionable credit, does not guarantee an insurer’s success in court.
- Complete success may require:
- particularly persuasive credit evidence to reduce the amount of damages, and
- overwhelming adverse findings regarding a plaintiff’s credit.
Introduction
The Supreme Court of the Australian Capital Territory has awarded damages to a Plaintiff in circumstances where the Insurer disputed causation on the basis of expert evidence from a Biomechanical Engineer, coupled with attacks on the Plaintiff’s credit.
Background
On 16 June 2016, Rouba Marhaba (the Plaintiff) was involved in a motor vehicle accident involving three vehicles in the ACT (the subject accident).
The Plaintiff alleged injuries to the lower back, right leg, neck, head and right arm including nerve root irritation in the lower back, Somatic Symptom Disorder, aggravation of severe depression, aggravation of poor cognitive functioning, a possible concussion, headaches/vertigo and intermittent cervical spine issues.
The Plaintiff had also been involved, and sustained injuries, in two motor vehicle accidents in 1991 and 2001. The Plaintiff’s injuries arising from these prior accidents largely caused disabilities to the Plaintiff’s back.
The Insurer, in respect of the subject accident, denied causation of the alleged injuries and disputed quantum.
Issues
In determining the claim, the Court considered the following:
- Did the accident cause the Plaintiff to suffer the injuries claimed?
- What is the extent of loss resulting from the injuries?
Decision
Findings on the cause
The Plaintiff gave evidence that the accident caused a “huge bang”, she felt “a big jerk” of her body, and that she considered the collision to be “very forceful”.
A Biomechanical Engineer expert, engaged by the Insurer, gave evidence that the Defendant’s vehicle was likely travelling at less than 20km/h to 30 km/h, and the collision likely caused a velocity change of between 3.75km/h and 6.2km/h.
During cross-examination, the expert conceded that while it was unlikely that any long-term injury would result from a velocity change of less than 10km/h, it was not impossible that an accident of this nature could cause injury.
The Insurer made numerous attacks on the Plaintiff’s credit, alleging and relying upon:
- inconsistent reporting of injuries (namely a gap in reporting of the Plaintiff’s back condition to treatment providers)
- previous adverse findings (in other proceedings) as to the Plaintiff’s credit
- experts commenting that the Plaintiff was exaggerating her symptoms
- inferences drawn from surveillance footage put into evidence, and
- slow or non-responsive answers provided by the Plaintiff during cross-examination.
To combat the attacks on her credit, the Plaintiff relied upon evidence from family members as to the impact on the Plaintiff and the deterioration of her condition post-accident.
Justice McWilliam found that the adverse material regarding the Plaintiff’s credit, and the opinion of the Biomechanical Engineer, were significant when considering the extent and duration of the harm suffered by the Plaintiff. However, the Plaintiff had proved she suffered injuries to her neck and back as a result of the subject accident.
In light of the above findings, Her Honour considered these injuries had resolved by early 2020 and that any ongoing pain was caused by either degeneration or separate unrelated trauma (such as the previous motor vehicle accidents), or a combination of both.
Her Honour did not accept that the alleged headaches, dizziness and vertigo, or depression, were accident related conditions; however, accepted that the Somatic Symptom Disorder was accident-related.
Calculation of damages
Justice McWilliam allowed $75,000 for general damages, assessed on the basis that:
- the injuries sustained in the accident substantially aggravated pre-existing pain, and
- the aggravated pain caused by the accident was now indistinguishable from the trajectory of the pre-existing pain and injuries.
The Plaintiff did not make a claim for past or future economic loss.
Damages were allowed for past and future treatment expenses and domestic assistance. Given the blurred lines between pre-existing injuries versus accident-related injuries, Her Honour used buffers for the calculations of past and future domestic assistance, rather than a formulaic calculation.
Final Result
Judgment was found in favour of the Plaintiff. The Insurer was ordered to pay the Plaintiff $155,524 plus interest and costs.
Why this decision is important
The decision highlights the growing trend of Insurers having success in ACT proceedings with expert evidence from biomechanical engineers, coupled with allegations of questionable credit (see Aluabaid v Kilani [2022] ACTCA 31 and Costa v Goudappel [2021] ACTMC 7).
However, the success does not represent a ‘silver bullet’ for insurers. The acceptance of some aspects of the Plaintiff’s claim is an indication that success on this basis requires
- particularly persuasive credit evidence to reduce the amount of damages, and
- overwhelming adverse findings regarding a Plaintiff’s credit.
This article was written by Jesse Iliopoulos and Justin Ji, with review by Principal Andrew Gorman. For further information or advice on any related matters, please contact Andrew.
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