AAI Limited T/As AAMI v Briffa

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI LIMITED T/AS AAMI V BRIFFA [2025] NSWPIC 285 3
CLAIMANT:	Briffa
INSURER:	AAI Limited t/as AAMI
MEMBER:	Brett Williams
DATE OF DECISION:	20 June 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; liability admitted; claimant suffered physical injury including a fracture of her dominant left wrist and psychological injury; no entitlement to non-economic loss; claim for past and future economic loss; Held – claimant had a loss of capacity to earn that was likely to be productive of financial loss; awards made for past and future economic loss; buffer of $175,000 allowed for future economic loss; total damages assessed $185,695.
DETERMINATIONS MADE:	1. Liability for the claim is admitted. 2. In accordance with s 7.36 of the Motor Accident Injuries Act 2017, I assess the amount of damages for this claim as $185,695. 3. The insurer is to pay the claimant’s costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and Regulations.

STATEMENT OF REASONS

BACKGROUND

Chelsea Briffa (claimant) was injured in a motor accident at Bangor on 23 December 2021 (accident). She has made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer). Liability for the claim has been admitted.
The insurer referred the claim to the Personal Injury Commission (Commission) for assessment in accordance with s 7.36 of the MAI Act.
The claimant seeks awards for past and future economic loss. It is agreed that she is not entitled to damages for non-economic loss.
It is not disputed that the claimant suffered physical and psychological injury as a result of the accident. Nor is it disputed that she has a loss of capacity to earn that may be productive of financial loss. Ultimately there were two primary matters in dispute: whether the claimant was entitled to a buffer for past economic loss over and above the agreed loss, and the amount of the buffer to be awarded for future economic loss.

ASSESSMENT CONFERENCE

The proceedings were listed for assessment on 10 June 2025. Mr Nesbeth, of counsel, appeared for the insurer and Mr de Meyrick, of counsel, appeared for the claimant.
The claimant gave oral evidence. No other witnesses were called or required for questioning.
The claimant sought and was given leave to rely on a statement from her mother. There was no objection to the claimant relying on the statement.
The claim form in the joint bundle was not the claimant’s. Her claim form, dated 27 December 2025, was filed by the insurer following the assessment.
Other than the statement from the claimant’s mother and her claim form, the documentary evidence relied on by the parties for the purposes of the assessment was contained in a joint bundle.
The claimant’s case at hearing was that as a result of the accident she sustained:
(a)    a fracture of her left distal radius that has been the subject of internal fixation;
(b)    a laceration to her left thumb;
(c)    scarring to her left wrist, and
(d)    psychological injury.
The insurer agreed the claimant suffered each of these injuries as a result of the accident.
With respect to the psychological injury, the claimant’s case is that as a result of the accident she suffers from post-traumatic stress disorder. The insurer’s case is that she has an adjustment disorder.
The parties agree that:
(a)    the claimant’s past economic loss up to 25 March 2022 is $7,000
(b)    the claimant’s past loss of superannuation up to 25 March 2022 is $840
(c)    the tax paid on statutory benefits (s 4.5(1)(d) damages) is $2,855
In addition to the loss up to 25 March 2022 the claimant sought an award by way of a buffer of between $20,000 and $30,000. The insurer disputed that she is entitled to an award over and above the past loss agreed between the parties.
During the course of oral submissions Mr Nesbeth confirmed that the insurer does not dispute the claimant has a loss of capacity to earn that is productive of financial loss, or that she is entitled to an award for future economic loss. The insurer’s case is that a modest buffer should be awarded.
The claimant’s case is that an award for future economic loss should be made by way of a buffer of up to $450,000. Mr de Meyrick confirmed in oral submissions that that amount was at the “top end” of the allowance that ought to be made for this head.

RELIABILITY OF THE CLAIMANT’S EVIDENCE

The insurer argued that there was an issue about the reliability of the claimant’s evidence with respect to her accident caused limitations and disability. That submission was underpinned by the examination findings and opinions expressed by Ms Ray, a physiotherapist, and Mr Jordan, a psychologist.
Given the reliance placed on the opinions of Ms Ray and Mr Jordan, it is relevant to note that Mr Jordan administered a Test of Memory Malingering when he assessed the claimant. His report records that the test was used to assess “potential malingering behaviour” given the claimant’s reported memory difficulties. Mr Jordan recorded in his report that:
“[The claimant] scored 50 out of 50 on the first trial. As such, completing the second trial was not deemed necessary as these results suggest that she attended to the test content appropriately with no concerns regarding feigned memory or concentration difficulties noted.”

Medical Assessor Sidorov recorded in his reasons that there were no inconsistencies present in the claimant’s history or presentation. Medical Assessor Herald found that the claimant’s condition was consistent and that there was no evidence of exaggeration. Dr Vickery recorded that the claimant’s history and presentation were consistent. Dr Bruce reported that the claimant “provided a good history with good responses to questions and no evidence of exaggeration of symptoms or signs. There were no inconsistencies”.
As recorded earlier, the claimant gave oral evidence at the hearing. She was an impressive witness. The claimant presented as intelligent and articulate. She was forthright in the evidence she gave and did not, in my assessment, overstate the effect her injuries have had on her.

INJURY FINDINGS

On the evidence before the Commission, I find that as a result of the accident the claimant suffered:
(a)    a fracture of her left distal radius;
(b)    a laceration to her left thumb;
(c)    scarring to her left wrist, and
(d)    psychological injury.
The claimant’s physical injuries are well documented in the contemporaneous records from St George Hospital and the records of her treatment providers. The fracture of the left distal radius was surgically treated with an open reduction and internal fixation. The metal remains in situ. There are presently no plans for it to be removed.
With respect to her psychological injury, the claimant relies on Medical Assessor Sidorov’s finding that she meets the diagnostic criteria for post-traumatic stress disorder. The insurer relies on Dr Vickery’s opinion that the claimant has an adjustment disorder that is in partial remission.
When she was examined by Medical Assessor Sidorov the claimant reported intrusion symptoms, nightmares relating to the accident, persistent avoidance of stimuli associated with the accident, together with increased irritability, hypervigilance, startle response, sleep disturbance and difficulties concentrating.

The claimant’s treating psychologist, Ms Paduano, recorded in her clinical notes that the claimant “continues to be triggered when driving if cars jut in front of her” and that when this happens “she is immediately under threat response”.[1] On 23 December 2022 Ms Paduano recorded that because it was the anniversary of the accident the claimant decided not to drive to the appointment due to “feeling extremely stressed, fearing she would have an anxiety attack.” It was also recorded that she was “depressed an anxious, and finds that she over reacts”. Ms Paduano recorded that there was “evidence of PTSD”. On 17 March 2023 she recorded that the claimant reported dreams about the accident and flashbacks. Similar symptoms are recorded in the clinical records from Menai Metro Medical Centre.[2]
[1] Clinical records dated 18 November 2022.
[2] See for example the nots recorded on 7 March 2022, 30 June 2022, and 1 September 2022.
In her statement the claimant described anxiety and feeling “the most affected” when she was in loud or busy environments, and when she was in a car. In his statement, the claimant’s partner stated that the claimant has mild panic attacks and “just struggles to be in the car in general”. He also described a deterioration in her mental health after the accident.
The claimant’s father stated that she had become dependent on him to drive her as she had become afraid to drive for “any extended period of time”. He also stated that she now dislikes social outings. The claimant’s mother referred, in her statement, to the claimant suffering nightmares and sleeplessness.
I accept the claimant’s evidence with respect to the psychological symptoms she has experienced since the accident. I am satisfied that she has given a truthful account of her symptoms to treatment providers and medico-legal experts who have assessed her. I prefer Medical Assessor Sidorov’s opinion that she has a post-traumatic stress disorder as a result of the accident. For the reasons given by the Medical Assessor, the claimant’s symptoms satisfy the diagnostic criteria for that condition and are consistent with a trauma related disorder. I find that as a result of the accident the claimant developed post-traumatic stress disorder.

LOSS OF CAPACITY

The claimant’s statement

The claimant relies on her statement dated 21 March 2025. She states that the last three and a half years since the accident have been the “most traumatic of [her] life”.
The claimant provides details of her schooling, her pre-accident interests, sporting activities (her favourite being horse riding), hobbies, and her work history. While the claimant described herself as being an “average student overall”, she “always excelled at sports, art and English”.
In her last semester of school, the claimant was employed at Subway, where she worked part-time for three years until she commenced working full-time at O’Brien Glass (O’Brien’s). She continues to work at O’Brien’s, albeit in a different role to that she was performing at the time of the accident.
The claimant states that as a result of the accident her life has “markedly deteriorated in all respects”. She cannot enjoy art without continuous pain and aching. She struggles with cutting and stirring as it “is just too much on [her] wrist”. She requires help with her horse because she cannot carry things such as feed bags. She has to use her non-dominant right hand to do things such as scooping pellets because her wrist feels like it gets “stuck” and causes her “a lot of pain” that limits the use of her left hand “severely”. She also has problems riding her horse.
The claimant states that:
“Mentally I have been adversely affected as well. I was a very happy person prior to the accident. I now have PTSD, anxiety and depression…I feel the most affected when I am in any loud or busy environments, but also when I am in a car, whether I’m driving or just a passenger”.
With respect to the assessment undertaken by Ms Ray at the request of the insurer, the claimant states that she “tried [her] best” to perform the “wide range of tasks” she was asked to do. She states that she was “clearly struggling” with many of the tasks. When she read the report prepared by Ms Ray, the claimant was “shocked at the results she had recorded because it was not in any way a true reflection of how I struggled at the assessment.”
With respect to her vocational plans prior to the accident, the claimant was “still trying to figure out [her] career opportunities”. She states that she had not decided on her final career path but was “confident in [her] abilities and was prepared to work hard”. She was sure she would have been promoted over the years.
The claimant also states that following the accident she applied for a new role working in the warehouse but could not lift the required weight for the role due to her left wrist injury. She was “moved” to a different role where she works mainly at a desk. She described her inability to work in the warehouse role as disappointing.

The claimant’s oral evidence

In oral evidence, the claimant described a graduated return to work after the accident. She eventually returned to full time work in her pre-accident role. The claimant experienced difficulties when she returned to work and issues with her performance were raised with her. She attempted to gain a different role but withdrew her application as she did not consider that she could perform necessary physical tasks. She ultimately gained a purchasing role that involves her predominantly working from home. One benefit of her current role is that she does not need to drive to and from work each day. She attends the office once every two or three weeks.
With respect to her intentions prior to the accident, the claimant said she saw herself getting “as high as possible” at O’Brien’s. She had also considered a career working with animals. She liked the idea of becoming a live-in stable hand at a large horse stable or equestrian centre. She does not think she could complete the physical demands of this work.
The claimant’s evidence was that her physical and mental condition had not changed, and that “everything’s still really hard”. She wears a brace on her left arm on the advice of her General Practitioner (GP) to help rest her wrist. The brace reduces movement and reduces pain. She takes medication for pain relief and uses a heat pack.
In questioning by Mr Nesbeth, the claimant confirmed she works from 9am to 5pm on Monday, Tuesday, Wednesday, and Friday. She works 9am to 1pm on Thursday. She does not work overtime as none is available. Her current hours are “pretty much the same” as her pre-accident hours.
She said that after returning to work post-accident she does not feel as mentally resilient. She also described the tasks she undertook in her pre and post-accident roles. She agreed that she was excited when she was appointed to her current role, a matter recorded by Ms Paduano in her clinical notes. She agreed that she enjoys her role and said that she still struggles “a lot”. The claimant went on to say that it is “better than the role [she] was in”.
In terms of her future employment, the claimant’s evidence was that she wasn’t sure how she would progress. She saw herself “going as high as possible” to earn a “decent amount”. She agreed that at the time of the accident she was still trying to figure out what she was going to do.
The claimant also described the ways in which her equestrian pursuits had changed since the accident. She does not ride as frequently or for as long as she did prior to the accident.
The claimant was taken to comments recorded in the clinical notes of her physiotherapist about improvement in the range of movement in her wrist. Her evidence was that she had never achieved a full range of movement.
The claimant was also referred to differing findings recorded by Ms Ray and Dr Bruce in terms of her left wrist function and range of motion. She said she struggled to lift using her left hand. She could not explain why there were different levels of functioning recorded by Ms Ray and Dr Bruce.
In response to questions I asked her, the claimant provided further details of her pre-accident duties. Her evidence was that those duties involved her using her left hand “a lot”. She was required to drive manual vehicles, unpack boxes, lift, and undertake keyboard work.
She said that performing keyboard work after the accident was “really hard” and that she “ended up using [her] right hand”. Driving manual vehicles post-accident caused a lot of issues in her wrist. When she lifts she puts all the weight in her right hand and generally favours her right hand.
The claimant gave evidence that she has noticed since the accident that she is not as tolerant, can’t think as quickly and becomes overwhelmed.
The claimant said that prior to the accident she didn’t really know what role she would end up in but would “try and get as high as possible”. She said she would “love to do a similar role to …what [her] mum was doing”.

Evidence from the claimant’s family

Mr Ayoub, the claimant’s partner, gave a statement dated 21 March 2025. Mr Ayoub stated that his relationship with the claimant commenced prior to the accident. He states that since the accident the claimant experiences “extreme difficulties in her physical and mental capacities” that had extended into their relationship dynamic.
Mr Ayoub states that before the accident the claimant was a confident person who demonstrated independence with daily tasks. Among other things, she was capable of performing the physically demanding tasks involved in looking after horses such as moving hay bales, moving heavy bags of horse feed and training them.
Mr Ayoub states that following the accident the claimant became an “entirely different person”. His evidence is that:
“…She experiences chronic wrist pain, impacting her physically [sic] capabilities. [The claimant] encounters difficulties whenever she attempts to enjoy her prior accident hobbies. Her chronic wrist pain creates challenges with her day-to-day life. She is no longer able to lift objects and has limitations with household tasks e.g. moving objects to organise the house. A major daily task she is no longer capable of doing is driving. Driving is extremely difficult for her as she does not trust anyone on the road and is always on the edge of her seat. She has mild panic attacks and just struggles to be in the car in general.”

Mr Ayoub states that tasks require lifting have fallen onto him, and that he has had to learn and perform an extensive range of horse caring tasks such as moving hay bales, lifting horse feed and training horses. He states that due to the claimant’s “reduced daily capacities” he had made modifications such as installing gas struts to assist with lifting the back of the ute. He massages the claimant’s wrist every night to assist with pain. Mr Ayoub states that chronic pain has severely affected the claimant’s mental health.
Mr Ayoub provides examples of the impact the accident has had on his relationship with the claimant and refers to her having lost “many forms of independence”. He concludes by stating the claimant “should be on a different path in life right now because…[she] has taken 10 steps back in the progression of her life and now has permanent modifications to her life.”
The claimant’s father, Steve, has given an unsigned statement. He states:
“Prior to the accident [the claimant] was a vibrant, extroverted, and confident individual who engaged in sporting pursuits and who was still contemplating her future career path. She was a hard working individual who enjoyed horseback riding, soccer, tennis, Oz tag and social outings.
Post accident, [the claimant’s] physical and mental health dramatically deteriorated. She went from a strong, independent, and outgoing individual to a withdrawn and dependant individual reliant on others for assistance. She became dependant on me to drive her places as she has become afraid to drive for any extended period of time. She now dislikes social outings as her confidence has plummeted… Her participation in equine competitions has almost completely stopped. [She] now experiences difficulties in performing simple actions such as opening car doors, driving, cooking, walking her dogs, bathing her dogs and cleaning due to the chronic pain in her wrist as a result of the accident. These simple, yet important daily aspects of her life have been permanently altered because of the [accident]. She is depressed about her life…”

Mr Briffa describes his career path, firstly as the proprietor of a large smash repair business and now as a marina manager, dealer and broker in boat sales, and provides details of his earnings.
Mr Briffa also provides comments on the functional assessment undertaken by Ms Ray. He attended the assessment which he described as “both strange and coercive”. His other comments about the assessment have been noted.
Finally, Mr Briffa states that prior to the accident the claimant had a similar career potential to himself, and that her potential has “now largely been destroyed” by the accident and her injuries. He states that “physical and mental toughness are essential when you are young and trying to impress”. He states that the claimant is lucky to have a job at O’Brien’s and that her career progression with the company is no longer available to her.
In her statement dated 6 June 2025, the claimant’s mother, Frances Smith, describes the claimant’s pre-accident equestrian activities, that included competitive riding. She states that in her pre-accident role at O’Brien’s the claimant became very confident, knowledgeable and successful. Following the accident the claimant had only partly recovered from her injuries. Ms Smith states that the claimant has been suffering nightmares and sleeplessness since the accident.
Ms Smith states that she was employed by the CEO of O’Brien’s for four years and had been part of the executive team. In her opinion the accident has had a permanent effect on the claimant’s ability to progress her career path in the technical/operational part of the business as physical strength is required working with stock and management of the branch. She states that prior to the accident the claimant had a career path that would enable her to progress, and that her goal was to work as the Assistant Branch manager.
Finally, Ms Smith states that the claimant’s ability and strength to handle the horse float and tow horses independently has not recovered enough to enable her to attend equine competitions or training programs. Her ability and strength to ride, train and maintain her horses has not recovered, and help is required from her partner for “95% of the tasks necessary to care for, drive and float and compete with her horses.”

Medical evidence

Medical Assessor Sidorov, psychiatrist, examined the claimant in December 2023 and issued a certificate and reasons in January 2024. The Medical Assessor recorded the following history:
“[The claimant] stated that, aside from the complications associated with her physical injuries, she has developed psychological problems and had felt that she has not been the same since. She stated that she has had [sic] developed repeated nightmares relating to the subject accident which had disturbed her sleep. She has also had [sic] developed repeated, intrusive thoughts about the accident and at the times that she would experience nightmares and intrusive thoughts, her mood would become more unstable, and she could feel lower and more depressed in her mood, with a reduced motivation to do things that she would usually engage in. She would also avoid any reminders of the accident and has experienced ongoing anxiety about driving. She stated that, when she is a passenger, it has been worse as she feels that she is not in control and that the car would get into an accident at any time. She stated that she has also become more irritable, which has been noticed at her workplace by her boss. She explained that she used to work in a face-to-face role, however, stopped working in that role as she felt she is less confident in dealing with the customers face-to-face. She has also become hypervigilant, often on edge and easily startled…”
The Medical Assessor also recorded that the claimant works full-time in “a different position where she is not facing customers anymore as she feels, with the previous position that was face-to-face, it is not right for her anymore as she has become more irritable and sensitive.”
Medical Assessor Sidorov diagnosed post-traumatic stress disorder. He found that the claimant had a mild impairment in adaptation. In making this finding I infer that the Medical Assessor accepted that the claimant experienced the symptoms she reported to him, and her report that she was unable to work in her pre-accident role, that required her to be face-to face with customers, due to increased irritability and sensitivity. The Medical Assessor also noted the claimant’s report of intermittent problems with concentration (although no overt deficits were noted during the assessment).
Medical Assessor Herald assessed the claimant in February 2024 and issued a certificate and reasons in May 2024. The Medical Assessor noted that the claimant had developed severe wrist stiffness and that the stiffness “appears to have affected her elbow as well”. He also recorded that the claimant’s symptoms had become static. On examination he found that there was residual stiffness of the left wrist and elbow and reduced range of movement in the elbow and wrist.
The Medical Assessor found that the claimant sustained a left distal radius fracture with excellent internal fixation and healing. However, prolonged immobilisation had resulted in stiffness of her left elbow and her left wrist that has not completely recovered despite physiotherapy. He assessed a 2% permanent impairment of the left elbow and the left wrist.
Medical Assessor Curtin’s certificate and reasons are not included in the joint bundle. However, the combined certificate is included[3] and records that the Medical Assessor assessed a 2% impairment as a result of the left wrist scarring.
[3] At page 38 and again at page 55.
Dr Bodel, orthopaedic surgeon, reported to the claimant’s solicitor on 27 April 2023. The doctor recorded complaints by the claimant of sensitivity over the dorsal of the left foot and in the distribution of the median nerve, ache in the hand generally, and weakness of grip strength. I have inferred that reference by the doctor to the “foot” is a typographical error and that he intended to refer to the “wrist”. He reported that on examination there was a restricted range of wrist movement on the left-hand side. The doctor did not provide an opinion about the claimant’s work capacity, noting that she was “back at her normal role”. Dr Bodel thought the claimant’s prognosis was reasonable, stating that while she had some stiffness and weakness of grip strength, “hopefully function will improve over time”.
Dr Bruce, orthopaedic surgeon, reported to the insurer on 24 February 2023. The doctor diagnosed a fracture of the left distal radius. After the cast was removed and after referral to physiotherapy it took a long time for the movement in her wrist to improve. He recorded that “she has never regained full movement” and there had been very little change in symptoms or condition of the wrist for the “past four months”. The claimant reported constant aching in the wrist felt on the volar aspect. The aching became “much more severe” with physical activity. Repetitive movement causes increased discomfort and forcing movement to its absolute limit also caused acute pain.
The claimant reported that she was aware of loss of movement and loss of function and said her left hand was weaker. The doctor also recorded that the claimant was unable to return to her previous duties because she had difficulty with the physical aspects of the work.
Dr Bruce found that there was residual post-injury and post-operative stiffness and weakness with persistent aching. There was reduced function in the wrist. The prolonged period of immobilisation in a cast probably contributed to the residual stiffness and reduced power. The claimant was unable to carry out repetitive activities in her left wrist and hand and unable to carry out heavy lifting and carrying. The doctor assessed a 6% permanent impairment of the wrist.
Dr Vickery, psychiatrist, reported to the insurer on 16 February 2023. He diagnosed adjustment disorder in partial remission. In his opinion the claimant had no incapacity and was psychologically fit for pre-injury duties. He found no impairment of adaptation.
The insurer relies on reports from the Vocational Capacity Centre (VCC) provided under cover of a summary of findings dated 11 December 2024. Ms Ray, a physiotherapist, prepared a functional evaluation report. Mr Jordan, a psychologist, prepared a vocational assessment report. There is a jointly authored “Job Match” report. A labour market analysis report was prepared by Ms Gaske.
I have considered Ms Ray’s findings on examination including her findings with respect to the range of motion in the claimant’s elbows, wrists, and hands. Ms Ray recorded that the claimant’s left forearm and upper arm demonstrated a 1.5cm decrease in girth versus the right, which she thought indicated mild muscular atrophy. She also noted mild power loss in the left wrist.
While there was a deficit in the range of motion in the claimant’s left wrist, Ms Ray stated that this was inconsistent with passive range of motion testing and “informal observations” during the assessment. Although she thought the claimant’s presentation was “largely consistent”, Ms Ray identified a number of inconsistencies, including inconsistent results in grip strength when compared to the records of Mr Hely, exercise physiologist, and the results recorded by Dr Bruce after he examined the claimant. Ms Ray concluded that the claimant’s grip strength was “far beyond that which she demonstrated at this assessment”. She also referred to “pain behaviours” being evident in the form of “pain and disability focus” and “obvious self-limitation with some functional testing”.
Ms Ray concluded that the claimant was “physically functionally capable” of returning to her pre-accident role. This finding was supported by (among other matters) evidence that she did return to that role after the accident. The claimant was also considered physically capable of other roles up to the “Light” classification.
In his report, Mr Jordan recorded that after a graduated return to full-time work following the accident:
“[The claimant] said that she continued to struggle with pain in her left wrist and cognitively found it difficult to multitask and deal with the various customer interactions required of her. She said that she obtained negative feedback from her employer guarding [sic] her change in demeanour [sic] and/or work performance and took this negatively. She said that her boss stated that she was not the same post-incident, and she eventually applied for and obtained her current role as a purchasing officer. She said that her current role is to work from home four days per week, which reduces the demands upon her (i.e., she no longer has to drive from her home to Rosebery, which she reports to have been anxiety-provoking).”
The claimant’s oral evidence was consistent with this history, and I accept her evidence about these matters.
Mr Jordan administered a number of tests, including Depression Anxiety and Stress Scale (DASS-21) and Test of Memory malingering (TOMM). His report records that the DASS-21 responses were indicative of someone who is experiencing severe levels of depression, extremely severe anxiety, and moderate stress. The claimant scored 50/50 in the TOMM. Because of this:
“…completing the second trial was not deemed necessary as these results suggest that she attended to the test content appropriately with no concerns regarding feigned memory or concentration difficulties noted.”
In Mr Jordan’s opinion, “significant amelioration of symptoms will occur if she obtains appropriate evidence-based treatment.” The claimant was “demonstrating the ability to work full-time, and as such, she has no specific psychological incapacity for work.”

The VCC “Job Match” report contains details of gross weekly pay rates for a purchasing officer, receptionist, customer services representative, and general clerk, roles considered to be “the most appropriate vocational choices” based on the functional and vocational assessment findings.
The “Labour Market Analysis” prepared by Ms Gaske contains details of available roles, including earnings, identified by reference to the claimant’s assessed work capacity.
I was taken to the Gymea Lily Psychotherapy Centre records by Mr Nesbeth during the course of oral submissions. I have considered those records and have earlier made reference to the symptoms reported by the claimant when she attended for counselling.
The clinical records from Menai Metro Medical Centre contain reference to psychological symptoms and ongoing symptoms and limitations in the claimant’s left wrist, including ongoing pain[4]. The last entry in the notes was recorded on 29 March 2023. At that time it was recorded the claimant presented with intermittent left wrist pain and that her “ROM[5] was limited at times depending on angle of movement”. She also reported a mildly reduced carrying capacity.
[4]Menai Metro Medical Centre clinical notes dated 3 February 2022, 3 March 2022, 31 March 2022, 30 June 2022, 1 September 2022, and 29 March 2023.
[5] Range of movement.

Financial records

The evidence includes various payslips from O’Brien’s, payment summaries, tax returns and investment income reports. This material confirms that the claimant is earning more at O’Brien’s than she did pre-accident.

Submissions

The claimant’s case

In written submission dated 27 February 2025 the claimant argues that she sustained significant ongoing physical injuries as a result of the accident. She seeks past economic loss for a seven week period and thereafter a buffer of $20,000 to reflect a diminution in her earning capacity to date.
She argues that the opinions of Ms Ray and Mr Jordan, psychologist “should be disregarded in favour of properly qualified orthopaedic specialist and psychiatrist”. She seeks a buffer of $250,000 inclusive of superannuation for future economic loss.
In further written submissions dated 21 March 2025 the claimant argues that her earning capacity has been adversely affected as a result of her accident caused psychological injury, that she experiences ongoing disability in her left wrist, and that she has a significant reduction in her earning capacity as a result of her physical and psychological injuries.
The claimant’s submissions record that her post-accident earnings have increased because she was 22 when the accident occurred and is now 26. Although the submissions refer to a schedule of damages, no schedule is included in the joint bundle. Nothing turns on this given the way the claimant’s case was run at hearing. In particular, the claimant’s case as articulated by Mr de Meyrick was that the award for future economic loss should be by way of a buffer.
In oral submissions, Mr de Meyrick argued that due to the physical and psychological injuries the claimant suffered as a result of the accident she has a loss of capacity to earn that is productive of financial loss. He submitted that she was genuine and that her evidence with respect to her symptoms and disability should be accepted.
In Mr de Meyrick’s submission the claimant’s physical injuries had manifested themselves in pain and discomfort. Because of this she avoided some of the physical aspects of her

pre-accident work including driving, typing, opening boxes and unpacking things.
Mr de Meyrick argued, and I accept, the claimant had a good pre-accident work history and was finding her feet in terms of her career at the time of the accident. He submitted that but for the accident she would have continued working at O’Brien’s and probably would have progressed through the ranks to “maybe” a managerial PA earning more money. He also argued that she may have pursued a career in the equestrian arena.
In Mr de Meyrick’s submission the claimant’s career had “taken a turn for the worse”. Issues with her performance when she returned to work had been raised with her and she was “largely working in the shadows” in her current role. It was argued that she had not overstated her symptoms and disabilities, that she had been candid and honest in her evidence, and that there was evidence of atrophy in her left upper limb.
It was submitted that in addition to the agreed past economic loss a buffer of between $20,000 - $30,000 should be awarded. As to the future, it was submitted that a buffer of $450,000 would be an appropriate award. Such an award, it was argued, would reflect: the claimant’s age, her accident caused physical and psychological disabilities, that before the accident she was a high achiever, and that she came from a hardworking and industrious family.

The insurer’s case

The insurer relies on written submissions dated 3 February 2025. The insurer’s case is that other than the closed period commencing on the day of the accident and ending on 25 March 2022, when she returned to full time work, the claimant has not suffered any loss of earnings to date.
The insurer submits that there is an absence of evidence to support the claimant’s allegation that there has been a “destruction of [her] progression/career path” as a result of injuries sustained in the accident. In this regard the insurer relies on the VCC report and Dr Vickery’s opinion.
The insurer’s submissions state that neither Dr Bruce nor Dr Bodel comment on a “loss of occupational capacity” and state that the claimant had been able to return to work on pre-accident hours.
It is convenient to record here that while the claimant did initially return to her pre-accident role, she was unable to continue in that role due to her accident caused injuries and has been working in a role that involves different duties. Further, Dr Bruce did record a history that the claimant was unable to return to her previous duties because she had difficulty with the physical aspect of the work, and that she had been “given” an alternative role.
As to the future, the insurer relies primarily upon the Vocational Capacity Centre reports in support of a submission that there is minimal, if any, loss of future occupational capacity resulting from the injuries sustained by the claimant in the accident. The insurer refers to and relies on Ms Ray’s report, including her opinion that there was significant inconsistency in the claimant’s presentation and that she did not observe “maximum effort” with all tasks throughout her examination of the claimant.
The insurer refers to Dr Bodel’s comments in his report dated 27 April 2023 that the claimant has made a successful return to normal duties and that, overall, he was hopeful her function would continue to improve overtime.
The insurer relies on Mr Jordan’s opinion that there was no clear incapacity from a psychological perspective, that the claimant was able to engage in full-time employment, and is not precluded from progressing in business administration, management or corporate areas at either O’Brien’s or another business.
In further written submissions dated 12 April 2025 the insurer refers to the claimant’s tax records, notes that they reflect an increase in her earnings over time, an reiterates its earlier submission that the medical and economic loss evidence reflects minimal, if any, loss of occupational and earning capacity as a result of injuries sustained in the accident.
In oral submissions Mr Nesbeth argued that there was a disconnect between the claimant’s reported symptoms and the medical evidence. He submitted that the extent of the claimant’s injuries had been overstated by her. Although there wasn’t a “square credit issue” there was, in his submission, an issue about the reliability of the claimant’s evidence.
He emphasised that the claimant was earning more now than she did before the accident and submitted that, other than for the agreed period, the claimant had not established any past loss.
The insurer, through Mr Nesbeth, conceded that the claimant has a reduction in earning capacity as a result of her accident caused injuries. He argued, however, that it can be reasonably assumed the claimant’s income will increase and that there was presently no economic loss. Mr Nesbeth submitted that the claimant’s future, in so far as work is concerned, was largely unaltered and that she had a significant residual capacity to earn.

The insurer acknowledged that the claimant was young. It argued that any future economic loss was limited. The insurer’s position was that a small buffer for future economic loss was appropriate.

Loss of capacity findings

I accept the claimant’s evidence that as a result of the accident her life has markedly deteriorated. She is left hand dominant and the injury to her left wrist has compromised her ability to use her left hand and arm. The claimant had no such restrictions prior to the accident; she was capable of performing the physically demanding tasks involved in her work and looking after horses. As to the latter, those tasks involved moving hay bales, moving heavy bags of horse feed and training them. I accept the claimant’s evidence that she used her left hand “a lot” in her pre-injury work.
I also accept the claimant’s evidence that she has never achieved a full range of movement in her left wrist following the accident.
I accept Medical Assessor Herald’s opinion that prolonged immobilisation had resulted in stiffness of the claimant’s left elbow and her left wrist. His opinion in this regard is supported by Dr Bruce, who thought that the prolonged period of immobilisation in a cast probably contributed to the residual stiffness and reduced power in the left wrist.
The level of functioning, including range of motion, in the claimant’s left wrist recorded by medico-legal experts differs. The insurer argues that the differences are significant and should raise doubts about the reliability of the claimant’s evidence with respect to the level of disability she experiences as a result of the left wrist injury.

In addition to the claimant’s evidence about the impact her left wrist injury has had on her functioning there is the evidence of her parents and her partner. I accept their evidence.
Ms Ray recorded that the claimant’s left forearm and upper arm demonstrated a 1.5cm decrease in girth versus the right, which she thought indicated mild muscular atrophy. She also noted mild power loss in the left wrist. The finding of atrophy is significant. It provides objective evidence of disuse of the left arm and lends support to the claimant’s evidence that she does not use her left upper limb as she did prior to the accident as a result of her left wrist injury.
I find the claimant does not have a full range of movement in her left wrist. I accept her evidence that she struggles to use her left hand, and that she experiences significant pain in her left wrist when she uses her left hand. As a result she has limitations with respect to activities such as, and similar to, lifting, keyboard work, driving (in particular manual vehicles), cutting, stirring, and other physical tasks that require the use of her dominant hand. She wears a wrist brace on the advice of her GP to reduce movement and pain. She cannot perform the full gamut of her pre-accident work duties and had to change roles as a result.
I find that the claimant could not work in her pre-accident role or in any role that involved those or similar duties in so far as they required her to use her left hand.
The loss of capacity the claimant experiences due to her wrist injury has already resulted in her changing roles at O’Brien’s and not pursuing a role. Issues with her performance were raised with her prior to her decision to move out of her pre-accident role.
As earlier discussed, I found the claimant to be an impressive witness. She performed well at the hearing, in what Mr Nesbeth described as a “highly charged environment”. None the less I accept her evidence she that she is irritable, does not feel as mentally resilient as she did prior to the accident, that she is not as tolerant, can’t think as quickly and becomes overwhelmed. She described difficulties dealing with customers and received feedback from her manager with respect to her change in demeanour. Her partner’s evidence, that I accept, is that she experiences panic attacks and “struggles to be in the car in general”. The claimant’s father has also attested to the changes he has noticed since the accident with respect to her mental health. The claimant’s mother states that the claimant has been suffering from nightmares and sleeplessness since the accident.
The symptoms reported by the claimant, and attested to by her family, provide clear evidence of the impact her psychological injury has had on her functioining. I find the claimant has a loss of capacity to earn as a result of her psychological injury.

ECONOMIC LOSS

The claimant is entitled to damages for past and future economic loss if she proves that because of her accident caused injuries and consequential disabilities she has suffered a diminution of her earning capacity that is or may be productive of financial loss. If these matters are proved she is to be compensated by an amount that reflects the financial consequences that follow from the impairment. What capacity has been lost and what economic consequences will probably flow from that loss must be identified.

Past economic loss

The claimant’s past economic loss up to 25 March 2022 is agreed to be $7,000. I award that amount.
Since returning to work on a full-time basis the claimant has continued to work without any demonstrable loss. She has changed roles and is earning more than she did pre-accident. I accept that the claimant’s increased earnings reflect, at least in part, that she was 22 years of age when the accident occurred and is now 26, and that different pay rates apply.
While I am satisfied that as a result of her accident caused injuries the claimant has a loss of capacity to earn, I am not satisfied on the evidence before me that she has suffered any economic loss to date over and above the agreed loss.

Past loss of superannuation

Damages for past loss of superannuation are agreed in the amount of $840. I make an award in that sum.

Section 4.5(1)(d) damages

It is agreed that tax paid on statutory benefits was $2,855. I award that sum.

Future economic loss - award

I have made findings about the impact the claimant’s injuries have on her capacity to earn. I am satisfied that the claimant’s left wrist injury and her psychological injury have reduced her earning capacity. The causal link between the negligent infliction of injury and the loss of earning capacity is established on the balance of probabilities. Whether the injuries will or may be productive of financial loss is to be determined having regard to the possibilities.
Section 4.7 of the MAI Act must be addressed when assessing future economic loss. The section is in the following terms:

“4.7 Future economic loss—claimant’s prospects and adjustments
(1)     Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission 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)     The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3)     If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

The reference to what is “most likely” is a reference to the most likely of possibilities and not a reference to probabilities: Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 White JA at [43] (Griffiths AJA and Weinstein J agreeing)[6].
[6] Although this case concerned s 13 of the Civil Liability Act 2022, that provision is in almost identical terms to s 4.7 of the MAI Act and does the same work.
The authorities establish, and there is no dispute, that damages for future economic loss may be awarded by way of a buffer: The Nominal Defendant v Lane [2004] NSWCA 405; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA13.
The claimant is 26 years of age. She has a life expectancy of 61 years on the medium tables. She started working when she was in high school and was working at O’Brien’s when the accident occurred. She was at that time “still trying to figure out [her] career opportunities”.
I am satisfied that but for the accident the claimant would have continued to work until she was 67 years old. A further 41 years will pass before she turns 67. It is possible that she would have remained at O’Brien’s. I consider it likely she would have progressed to roles involving more responsibility, including as an Assistant Manager or a role similar to that performed by her mother. She may have pursued a role working with animals, particularly in the equestrian arena. Alternatively, she may have followed the path of her father, who has operated successful businesses.
The claimant is presently working full-time and is not suffering any economic loss. It is possible that she will find other roles, either at O’Brien’s or with another employer, in which her earnings will exceed both her pre-accident and her current income. Even if this comes to pass, I am satisfied that as a consequence of her left wrist injury and her post-traumatic stress disorder it is likely the claimant will not be able to achieve her pre-accident earning potential and that she will suffer financial loss as a result. Her ability to work with animals has been significantly compromised by her left wrist injury. She does not have the capacity to perform her pre-accident work or work, including in a more senior role, that involves similar duties. The functional limitations and pain the claimant experiences as a result of her left wrist injury are likely to persist without significant improvement.
In addition to the limitations and symptoms she experiences with respect to the use of her dominant hand, the claimant’s psychological injury is likely to compromise her ability to perform the full range of duties associated with a more senior role. Those symptoms include a loss of confidence, irritability, becoming overwhelmed, and a loss of tolerance. The claimant’s psychological symptoms have already had an adverse impact on her ability to engage with customers and have, together with her wrist injury, resulted in her changing roles. It is likely that the claimant’s psychiatric symptoms will persist.
For the foregoing reasons I am comfortably satisfied the claimant has a loss of capacity to earn as a result of her accident caused injuries that is likely to be productive of financial loss.
Assessing the economic consequences of the claimant’s accident caused loss of capacity cannot be undertaken by reference to precise weekly amounts due to her age, the uncertainty of her likely future circumstances and the number of variable factors which would render a more precise assessment merely artificial and speculative. A buffer award is appropriate in the circumstances. I award $175,000 inclusive of superannuation.

SUMMARY OF DAMAGES AWARD

I assess damages as follows:
Non-economic loss  $NIL
Past economic loss  $7,000
Past loss of superannuation  $840
Section 4.5(1)(d) damages (Fox v Wood)                 $2,855
Future economic loss   $175,000
Total Damages Assessed   $185,695

COSTS

I informed the parties at the assessment that I proposed to order the insurer to pay the claimant’s costs and disbursements in accordance with the MAI Act and Regulations. I make that order.

[2025] NSWPIC 285

20 June 2025