AAI Limited t/as AAMI v Jaber

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as AAMI v Jaber [2023] NSWPIC 673
CLAIMANT:	Fareed Jaber
INSURER:	AAI Limited t/as AAMI
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	11 December 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages; claimant in receipt of disability pension at the date of accident; working two days a week; pre-existing physical and psychological conditions; wife in receipt of carer’s pension; damages for out of pocket expenses and future commercial care claimed; no claim for non-economic loss, economic loss, or past care; Medical Assessors found that the claimant suffered physical and psychological injury as a result of the accident, and assessed permanent impairment (that was not greater than 10%); Miller v Galderisi, Berkeley Challenge Pty Ltd v Howarth, Gordon v Truong; Truong v Gordon, and White v Benjamin considered and applied; Held – the claimant suffered physical and psychological injury as a result of the accident with associated disability; allowances made for past and future out of pocket expenses and future commercial care.
DETERMINATIONS MADE:	CERTIFICATE 1. Under sub-sections 94(3) and 94(4) of the Motor Accidents Compensation Act 1999, I specify the amount of damages for this claim as $63,194.75. 2. The insurer is to pay the claimant’s costs in the amount of $14,619.00 inclusive of GST and disbursements in the amount of $7,112.72 inclusive of GST. 3. Attached to this certificate are reasons for my assessment.

STATEMENT OF REASONS

BACKGROUND

Fareed Hameed Jaber (claimant) was injured in a motor accident at Kogarah on

25 May 2016 (accident). He subsequently made a claim for damages under the Motor Accidents Compensation Act 1999 (MAC Act) on AAI Limited t/as AAMI (insurer). The insurer wholly admitted liability for the damages claim on 10 October 2016. The insurer referred the claim to the Personal Injury Commission (Commission) for assessment under Div 2 Part 4.4 of the MAC Act.
A preliminary conference was conducted on 14 August 2023. It was confirmed that the claimant did not seek awards for non-economic loss, economic loss (either past or future), or past care. The only heads of damages for which awards were sought are past and future treatment and future commercial care. Directions were made and the proceedings listed for assessment hearing on 26 October 2023.

ASSESSMENT

The claim proceeded to assessment on 26 October 2023. The claimant gave evidence with the assistance of an Arabic interpreter. His wife was available to give evidence but was not required. The matter was adjourned part-heard so that oral submissions could be completed.
The parties made their oral submissions on 22 November 2023. The submissions are addressed later in these reasons.

EVIDENCE

The documentary evidence relied on by the parties is contained in a joint bundle. The joint bundle includes, but is not limited to, records from treating practitioners, particulars, medico-legal reports, photographs of the claimant’s vehicle, a police report, radiological reports and Centrelink records. I have read and considered all the material in the joint bundle.

Claimant’s evidence

The claimant relies on his statement dated 19 September 2023. The statement records details of his schooling and work history in Iraq. From the age of 18, he served in the Iraqi army for seven or eight years, after being conscripted. He fought in the Iran/Iraq war. He was traumatised as a result. His sleep was affected and he experienced nightmares. He suffered shrapnel injuries to his left eye, right forearm and hand, just above the thumb, left wrist, left hip and left leg. After he was discharged from the army in 1991 the claimant worked in his family’s bakery business in Bagdad until he left Iraq to come to Australia in 1994.
The claimant provides details about his family. He was detained in an Immigration Centre in Australia until 1995, when he was released. He became an Australian citizen in 1998. He states that when he was released from the Immigration Centre he “was not in a position to work because of physical pain and post-traumatic stress disorder from the Iraq/Iran war”.
The claimant states that when he arrived in Australia he only spoke a “little bit” of English. He attended intensive English language courses. He was, at that time, able to do some light work as a taxi driver, “but certainly not full time”. He was in receipt of Centrelink benefits.
The claimant’s statement records that although he was working before the accident, he did not wish to proceed with any claim for economic loss.
A history of the accident is recorded. The claimant states that while he was stopped at traffic lights, the at fault vehicle struck his vehicle “suddenly and with great force”. He states that immediately after the collision he felt pain in the base of his neck and lower back. On arriving home he took Panadol for pain. He states that when he awoke the following day his pain was significantly worse. He had pain in both legs and the right side of the base of his neck, and felt tingling in his right arm and hand. He saw his general practitioner (GP), was given scripts and referred for investigations. He received physiotherapy. He states that his pain has become worse, and that he has become more dependent on pain medication. He suffers significant pain in his lower back and the back of his legs. While he experiences symptoms and pain in his neck, it is not as bad as the low back pain.
The claimant’s statement sets out a range of restrictions that he experiences as a result of pain. The claimant states that since the accident, he has been highly dependent on his wife and children for the provision of domestic and other assistance. His sons assist him with mowing the lawn and things in the garden. His wife attends to the day-to-day things, including cooking and all the other chores in the house that he cannot do. He states that he currently needs, and will continue to need, assistance with cooking, cleaning, showering, shopping for groceries, and making the bed. He states that if he had funds available he would pay for assistance.
The claimant’s statement makes reference to his past medical history, and provides commentary in relation to that history, as recorded at [53]. He states that the back pain that he experienced in the past has only ever been a “muscular type of pain”, and that the back pain has “historically always become better”. He states that after the accident his back pain changed in description, and that it was totally different to his back pain before the accident. He states that the pain “became a much sharper and persistent type of pain” and was “more restrictive”. He states that while he could drive a taxi prior to the accident, he could not do so after the accident.
The claimant states that his wife has been his carer since the commencement of the Centrelink “grant” in 1995. He states that he is disabled as a result of the accident and needs assistance with care and domestic activities. He states that he would like to have the funds to enable him to have the treatment recommend by the doctors retained by his lawyers.
The claimant gave oral evidence at the assessment, including evidence about his pre and post-accident situation, the accident, his injuries and disabilities. He confirmed that he had travelled back to Iraq two or three times since the accident, most recently for a month and a half. I will deal with other aspects of his oral evidence later in these reasons.
The claimant presented as being in significant pain and discomfort during the course of the assessment. He stood for some of the time.
The insurer squarely raised the reliability of the claimant’s evidence in its written and oral submissions. It was argued that he had failed to disclose relevant pre-accident history to doctors who examined him, and that he was evasive and non-responsive in his answers to questions at the assessment. It was submitted that there were two ways of approaching the case: either the claimant is not a witness of truth or he has a mistaken belief about his true level of disability.
I am satisfied that the claimant is a poor historian, a matter conceded by Ms Gumbert. She submitted that his memory was not “100%”, and that I would prefer the contemporaneous records. Further, the claimant failed to disclose to some of the doctors who examined him for the purposes of his claim his pre-accident history of back complaints.
The clinical records and Centrelink documents satisfy me that he had a long history of back complaints. He does not appear to have given a complete history about these complaints to doctors who have assessed him for the purposes of his claim, including Dr Davis,

Dr Fearnside, and Medical Assessor Menogue.
When it comes to his pre-accident health, I prefer the contemporaneous records. However, for the reasons given by Basten JA in Sangha v Baxter [2009] NSWCA 78 at [155], I do not propose to make a global finding about the reliability of the claimant’s evidence. As will be seen, while I have rejected his evidence about some matters, I have also accept his evidence about others.

Statement from the claimant’s wife

The claimant’s wife has provided a statement dated 19 September 2023. She states that she arrived in Australia from Iraq in 1995. She applied for, and was granted, a carer’s pension in 1995. The pension related to care that she provided the claimant. Since she commenced receiving the pension, she has provided care of approximately seven hours a week in the form of shopping for groceries, cleaning, cooking meals and washing dishes and laundry. She states that since the accident she has provided additional care in the form of shopping, cleaning, cooking, washing dishes, laundry, lawn mowing and gardening, and assisting with showering and day to day hygiene. She estimates that she provides 10 – 11 hours care a week.

The claimant’s medico-legal evidence

The claimant relies on a report of Dr Davis dated 4 July 2017. The only radiological report provided to, and discussed by, the doctor was the lumber spine CT report dated

19 May 2017. With respect to the claimant’s medical history, the report records “[r]eview was non-contributory with respect to this current presentation and he reports being unaware of any general health problems.” This, in my assessment, is an example of the claimant failing to provide a full and complete history with respect to his pre-accident back complaints.
The doctor recorded a history that following the accident the claimant developed pain in his upper and lower spine. The doctor took a history that the claimant’s neck symptoms resolved over time. The claimant reported continuing constant severe right-sided lower back pain which radiates to his right buttock and extends through his right lower limb to the central toes. His symptoms are aggravated by long periods of sitting or standing. He is unable to lift any heavy goods or travel long distances. He reported difficulty bending, using force, and ingressing and egressing a vehicle. The report records that the claimant is no longer able to cut the grass or do yard work, undertake repairs and refurbishments at home, and his wife does the mowing. He was unable to assist his wife within the home.
Dr Davis diagnosed soft tissue injury to the cervical region that had resolved. The doctor also diagnosed mechanical trauma to the lumbar spine with symptoms of radiculopathy due to an L4/5 prolapse. In his opinion the injuries were consistent with the mechanism of trauma. The claimant’s prognosis was guarded. The possibility of him requiring a decompression procedure could not be ruled out. He was significantly restricted in all spheres of his life, including daily living and work capacity. He should continue with his medications. Referral to a multi-disciplinary pain management team was recommended. In the doctors’ opinion, the claimant required “a considerable amount” of domestic assistance at home, at an estimated level of 12 hours a week, to include his outside work, repairs, and assistance with domestic chores. The claimant had not reached “maximal” medical improvement, and should be re-assessed in six months.
Dr Davis reported again on 12 December 2017, having assessed the claimant that day. The doctor referred to the report of the CT guided epidural injection at L4/5 dated 5 July 2017. The claimant complained of continuing back pain with radiation to the right leg. Those symptoms had increased in intensity following the epidural. The claimant was restricted in any work of a weighted or forceful nature and was unable to sit or stand for long periods of time. His ambulatory tolerance was reduced. The claimant remained restricted in his ability to assist his wife with domestic chores or undertake yard work and maintenance activities. The doctor diagnosed an L4/5 disc prolapse with “radicular-type symptoms” in his right leg which were, in his opinion, consistent with the stated mechanism of trauma. The prognosis was for continuing pain, impairment and disability. An L4/5 micro-discectomy was probable. Physical therapy was indicated, as was quarterly review by his GP, review by a neurosurgeon on 2-3 occasions, investigations including MRI scanning, and continuing medication. As a result of the accident the claimant required assistance with gardening activities including mowing, minor maintenance activities, mopping, sweeping, vacuuming, making beds scrubbing floors, food preparation, heavy activities, washing up, emptying the washing machine, folding clothes and ironing. In Dr Davis’ opinion, the claimant required domestic assistance at a level of “around” 10 hours a week on an ongoing basis.
The doctor took issue with Dr Shatwell’s opinion that the claimant’s symptoms were attributable to longstanding cervical and lumbar spondylosis. Dr Davis stated that he had viewed CT scans that did not, in his opinion, demonstrate any significant spondylosis which “would be anticipated to substantially affect [the claimant’s] functional capacity.” The doctor also recorded that there “is no contemporaneously recorded history of [the claimant] having suffered any symptoms in his lower back prior to this accident”. This history in incorrect. In a supplementary report the doctor assessed a 10% permanent impairment of the claimant’s lumbar spine as a result of the accident.
Dr Fearnside, neurological surgeon, reported on 7 February 2019. The doctor recorded a history that the claimant experienced immediate neck and low back pain after the accident. Right sciatic pain commenced within a few weeks of the accident. While the neck pain had improved, the claimant experienced “fairly constant” discomfort in his neck. The low back and right sciatic pain was the main cause of his continuing disability. The claimant required regular assistance from his wife for washing, dressing, domestic chores and gardening. The doctor recorded that there was no prior history of any injury, disorder or condition affecting his neck or low back and there had been no subsequent aggravation which might contribute to his condition. The doctor referred to a CT scan of the claimant’s lumbar spine dated

19 May 2017, that showed a broad based disc protrusion at L4/5. He also referred to the epidural report dated 5 July 2017. The doctor diagnosed musculoskeletal injury to the cervical spine, “probable” internal L4/5 disc injury causing back and right leg pain, and objective evidence of radiculopathy in the right leg. It was likely that the claimant will continue to experience low back pain and right lower limb radicular pain for the foreseeable future and there was unlikely to be much improvement with or without medical treatment. From a neurosurgical perspective it was not likely that surgical treatment is required. The doctor stated that “there may well be a small structural lesion at L4/5 causing the sciatic pain” and if so, this would be amenable to future treatment, either conservative or surgical. In his opinion, the claimant would require some domestic assistance and assistance with yard, garden, and handyman work. His condition had stabilised. The cervical injury gave rise to 0% permanent impairment and the lumbar spine injury to 10% permanent impairment.
Dr Buckley, consultant physician, reported on 28 September 2019. The claimant told the doctor that his main problem was low back pain, although he also experienced some neck pain. The doctor provided recommendations for future treatment and assistance. As to the latter, he thought that the claimant required three hours handyman assistance a week and five hours assistance from a housekeeper. The doctor recorded that the claimant told him that prior to the accident he was “fit like Rambo”. He said he had not suffered any serious injuries or fracture, and had never hurt his back or neck before.
The doctor diagnosed non-specific cervical pain, exacerbation of osteoarthritis of the lumbar spine, with intervertebral disc disease, and bilateral shoulder impairment, probably as a result of osteoarthritic change. The report refers to herniation, which I have inferred is a reference to the findings of an L4/5 protrusion recorded in the 19 May 2017 CT scan report. The neck and low back injuries were attributable to the accident. The doctor recommended quarterly review by the claimant’s GP, review by a neurosurgeon every third year, and physiotherapy. Operative intervention in the lumbar spine was unlikely. The cervical spine injury gave rise to 0% permanent impairment. The lower back injury gave rise to a 5% permanent impairment.
Dr Cocks, psychiatrist, reported on 12 November 2019. A pre-accident history of depression is recorded, together with psychological and psychiatric treatment. In the doctor’s opinion, the claimant suffers from chronic pain as a result of injuries sustained in the accident. There had been a deterioration in his mental health following the accident. The doctor diagnosed a major depressive disorder. The accident had given rise to a severe depressive illness. The depressive condition was not a secondary condition to chronic pain; it is a primary condition that has occurred “alongside” the chronic pain. The claimant was largely dependent on his wife for simple activities of daily living. His prognosis was poor. He required ongoing psychological and psychiatric treatment. His whole person impairment was 22%.

The insurer’s medico-legal evidence

Dr Marsh, occupational physician, reported on 21 December 2016. The claimant reported suffering injuries to his neck and back in the accident. He denied previous problems with his neck or low back, and denied anything of significance in his past history. His main persisting problem was his back. His neck injury had improved by 90%. The claimant reported that prior to the accident, he would look after the yard and mow the lawn. He would also perform general maintenance. He said that his wife would do the housework. He said, however, that he can no longer do his outside or maintenance duties and that his son or wife now perform these duties. X-rays of the cervical and lumbar spine dated 27 May 2016 showed some mild to moderate degenerative change which would not be unexpected in someone of the claimant’s age. In the doctor’s opinion, the claimant had suffered whiplash injury to the neck and low back resulting in musculoligamentous strain as a result of the accident. His injuries had not stabilised. The claimant remained unable to resume pre-accident employment from the time of the accident. He was not fit to carry out the heavier activities of gardening, maintenance and lawn mowing. There was no indication of abnormal illness behaviour or non-organic signs, nor were there signs of pain behaviour. In the doctor’s opinion, the claimant would benefit from a structured activity program and CBT. The doctor assessed 0% permanent impairment of the claimant’s neck and low back.

Dr Marsh reported again on 31 May 2017. The doctor was provided with Dr Moawad’s clinical notes covering October 2007 – July 2016. Those notes included references to psychological issues, polymyalgia, indicating widespread muscle and joint pains, together with references to low back pain in September, November and December 2011 and again in early 2016. There did not appear to be any significant underlying pathology or indication of injury.
Dr Marsh reported on 8 August 2017. He stated that there was no clear evidence that the claimant had persisting low back pain prior to the accident. In his opinion, the claimant may have been more susceptible to developing low back pain following even comparatively mild trauma. It would not, in his opinion, be appropriate to conclude that the claimant’s low back pain and other musculoskeletal pain at the time of assessment was solely due to a pre-existing condition.
Dr Shatwell, orthopaedic surgeon, reported on 8 September 2017. He recorded a history of the accident, and that the claimant reported experiencing severe low back pain the day following the accident. Neck pain was also reported. Physiotherapy had been beneficial. The claimant reported some pre-accident back symptoms. The doctor thought that the

13 September 2011 CT scan, that was requested following reports on 1 September 2011 of a month’s history of low back pain, showed significant disc lesions at L1/2 and L4/5. The claimant reported that he was unable to help his wife with a great deal of household chores. His oldest son helped around the house and his wife did most of the gardening. In the doctor’s opinion, the claimant’s problems relate to cervical and lumbar spondylosis. The claimant may have suffered a minor exacerbation of symptoms as a result of the accident. His current condition was not due to the accident. The claimant’s disabilities are the result of longstanding degenerative disease that were related to the claimant’s “lifestyle and habitus”. He noted that smoking was linked to spinal degenerative disease. The doctor thought that it was unlikely that the claimant had “done a great deal of domestic work previously”. He thought it was doubtful that his pre-accident capacity for home duties had changed as a result of the accident. The neck and low back injuries attracted 0% permanent impairment.
In a report dated 5 August 2022, Dr Shatwell traversed much of the ground covered in his earlier report. The claimant told him that lumbar pain persisted, with radiation into the right leg. The doctor noted reports in the clinical notes of low back pain in 2003, 2004 and 2011. There was a history of injury resulting from shrapnel wounds, osteoarthritis in both knees, and polymyalgia. The doctor diagnosed chronic degenerative disc disease at L1/2 and L4/5. In his opinion, there are more severe changes at the L1/2 level with more disc narrowing than at the lower level. The prognosis was for ongoing degenerative change in the disc and facet joints at these levels and at other levels in the spine.
In Dr Shatwell’s opinion, it was very difficult to judge the true extent of disability in an examination for disability. There were inconsistencies in the examination that suggested the claimant’s high levels of reported pain and disability are exaggerated. In his opinion, the accident was insufficient to cause any worsening of the claimant’s established lumbosacral spinal degenerative disease. While there may have been minor soft tissue injuries causing exacerbation of cervical and lumbar spondylosis in the accident, there was no permanent aggravation of these conditions. In his opinion, the accident would not have caused any change in the claimant’s domestic activities. He did not consider the accident to have led to a need for future domestic assistance.
Dr Keller, occupational physician, reported on 22 November 2021. A history of back and neck pain following the accident is recorded. “On clear and specific questioning” the claimant reported no prior neck or back pain, investigation or treatment. He suffered anxiety after the accident, and complained of constant low back pain. He was unable to do cooking, cleaning or yard work that is performed by his wife. He spends his day watching television. The doctor recorded that the medical records include a history of pain in his neck, back, hips and knees with pre-existing disc bulges at L1/2 and L4/5, similar to those reported in the investigations following the accident. In the doctor’s opinion, it is possible that the claimant suffered temporary soft tissue strains to the neck and back in the accident that would be expected to have fully resolved without ongoing restrictions or treatment needs in less than three months from the time of the accident. His current reported disabilities are not consistent with the mechanism of accident. The doctor diagnosed temporary exacerbations of long standing, pre-existing cervical and lumbar degenerative changes. Treatment for no more than three months after the accident was reasonable. There is no objective evidence of lasting physical injuries attributable to the accident that require any current or future treatment. While it was possible that the claimant had ongoing significant back pain, it was not related to the accident. The pain may restrict his functional capacity.
While he was fit for self-care, it is likely that the claimant required assistance with heavy cleaning and yard work. This need related to his constitutional spinal degenerative complaints. He may have required assistance with regard to home duties as a result of the accident for no more than three months after the accident. He has ongoing restrictions with regard to moderate to heavy cleaning and yard work. Those restrictions did not relate to the effects of the accident. It is likely that his degenerative complaints will slowly deteriorate over many years with increasing age. There is no prospect for a full recovery or a return to unrestricted home duties.
Dr Korber, radiologist, reported on 4 April 2023. The report records that the doctor had no details surrounding the accident, and that the clinical record was vital as all radiological findings required clinical correlation before being regarded as significant. The doctor reviewed the lumbar spine CT of 13 September 2011, 5 July 2017, and 14 September 2020. In his opinion, from 2011 to 2020 there had been a significant change at the L4/5 level with a large, right sided disc herniation. The study from 19 May 2017 was not available for viewing. A large disc herniation is not mentioned at L4/5 by Dr Bryant (a reference to the CT scan report dated 19 May 2017). The interventional image is almost certainly at L4/5 and does not show a right sided disc herniation on 5 July 2017.
In Dr Korber’s opinion, the disc herniation could have occurred at any time prior to the

14 September 2020. The 19 May 2017 CT of the lumbar spine (the imaging as opposed to the report) needed to be reviewed and compared to the 2011 study, as it was only reported as showing a disc bulge not a right-sided disc herniation. The doctor “suspected” that the 2020 image with a large disc herniation was due to a recent problem. He thought that “the clinical story will probably easily identify the date of the herniation” as he expected that it would be accompanied by significant right-sided sciatica.
Dr Vickery, psychiatrist, reported on 31 October 2022. He did not think that there was any diagnosis due to the accident. The claimant’s psychological complaints were pre-existing and were “not reasonable”. There was no DSM5 diagnosis due to the accident. No treatment or care were required as a result of the accident.

Medical assessments

Medical Assessor Menogue gave a certificate and reasons dated 1 April 2021. The Medical Assessor certified that the claimant suffered a soft tissue injury to his lumbar spine as a result of the accident that did not give rise to a permanent impairment that was greater than 10%. In his reasons, the Medical Assessor recorded that the claimant denied a past history of injury to the neck, back, arms or legs. He further stated that he was very fit and had had no problems from a musculoskeletal perspective. The reasons record that the claimant’s attention was drawn to the clinical notes of Dr Moawad, that included references to low back pain in 2011 and neck pain in 2013, together with right hip pain (secondary to osteoarthritis) in 2016 and bilateral knee pain in February 2016. The claimant is recorded as replying that that these were simply muscular disorders and that he had no bony problem. The claimant told Medical Assessor Menogue that over the two days following the accident he gradually developed neck and low back pain.
The Medical Assessor found that there was a pre-existing L1/2 disc lesion, and that this lesion is present in CTs of the lumbar spine performed on 19 May 2017 and

14 September 2020.
On examination, the claimant was described as being “undemonstrative”. There was no inconsistency in his performance. The Medical Assessor diagnosed soft tissue injury to the claimant’s lumbar and cervical spine as a result of the accident. The cervical spine injury “promptly resolved”. In his opinion, the imaging has not provided conclusive evidence of new disc pathology. Soft tissue injury with facet joint arthropathy was the most likely explanation for the claimant’s lumbar spine clinical presentation. A 5% permanent impairment was assessed as a result of the lumbar injury. The cervical injury had resolved and did not have a rateable impairment.
Medical Assessor Prior gave a certificate and reasons dated 9 December 2021. The Medical Assessor certified that persistent depressive disorder, caused by the accident, gave rise to a permanent impairment that was not greater than 10%. In his reasons, the Medical Assessor recorded that the claimant:
“…specifically, categorically and repeatedly denied a prior history through childhood, adolescence and adulthood of significant psychiatric symptomatology, contact, diagnosis, hospitalisation, treatment, investigation or referral to psychiatrists, psychologists or counsellors. He specifically denied a prior history of depressive episodes, anxiety syndromes, or post-trauma symptomatology when questioned.”
Despite this, the Medical Assessor noted the well documented pre-accident history of psychological symptoms. The claimant also denied any pre-existing general medical conditions, saying that he “was very healthy, like a horse.” He reported that he did have long term injuries due to shrapnel from war wounds and was on the Disability Support Pension due to these wounds. He denied a history of other significant general medical conditions or other enduring physical injuries. He reported that he came as a refugee to Australia by plane in 1994, and that he was commenced on the Disability Support Pension in 1995 solely as a result of his right arm injury due to the shrapnel wound. He specifically denied going on the Disability Support Pension for psychiatric reasons.
The reasons record that when the claimant was assessed by the Medical Assessor he displayed frequent pain behaviour throughout the assessment. In this regard, he:
“frequently reposition[ed] himself on the seat of the chair, extending his right leg, stretching his back, standing, and bracing himself against the chair's armrest and seat… he frequently sighed, moaned, grimaced and winced.”
The behaviour observed by the Medical Assessor is generally consistent with my observations of the claimant at the assessment.
The Medical Assessor considered that the diagnosis of a major depressive disorder, made by Dr Cocks, and of "depression - major", mentioned by treating GP Dr S Moawad, are consistent with his own findings that the claimant suffers from a persistent depressive disorder. That condition had been exacerbated by the accident. In his opinion, the condition relates to the claimant's chronic pain perception and physical limitations and ramifications of these.
In the opinion of the Medical Assessor, it is most likely, despite the claimant’s denial of suffering from depression or anxiety prior to the accident, that he did suffer a degree of depression and anxiety and had received treatment for this. In his opinion, this condition was exacerbated following the accident due to his significant chronic pain perception and physical limitations and ramifications of these. If the claimant had historically suffered from depression, and the depression had fully remitted by the time of the accident, the past history of depression would make the claimant more vulnerable to developing his index episode of depression. However, in his opinion the most likely scenario is that the claimant did have a degree of pre-existing depression and that this was exacerbated significantly following the accident. The Medical Assessor found that the accident caused permanent psychiatric impairment of 8%.

Dr McIntosh

Dr McIntosh provided what is described as a “collision and biomechanics report” dated

30 September 2021. He was provided with, among other things, some of the medical evidence, a police report and the property damage file for the claimant’s vehicle. In his opinion, during the accident, the claimant would have been exposed to external forces acting through the seat, floor pan, steering wheel and seatbelt, together with internal forces applied through muscles, ligaments and joints between body segments. He thought it was plausible that the collision could have caused whiplash associated disorder, soft tissue injury and/or symptomatic exacerbation of a pre-existing condition involving the neck, with symptoms of a closed period of short duration. In his opinion, it was unlikely that the biomechanical forces involved in the accident caused an injury to the claimant’s thoraco-lumbar spine. However, in light of the claimant’s history of low back pain and imaging changes, it is plausible that the collision caused symptomatic aggravation or exacerbation of his pre-existing lumbar spine condition with symptoms of a closed period of short duration.
It is not clear to me on what basis Dr McIntosh is qualified to express an opinion about the likely duration of any injury to the claimant’s neck or back. To the extent that his opinion is relied on in this regard, I do not accept it.

The Centrelink records

The Centrelink records include a treating doctors report dated 8 August 2003, completed by Dr Awada. The report refers to the claimant suffering from post-traumatic stress disorder and depression. The report also refers to “painful legs and arms”, and records that the impact on his function was that he was “unable to stand or walk for long periods”.
A document titled “Medical Review – Disability Support Pension” dated 11 August 2003 and signed by the claimant, records that the claimant required an Arabic interpreter, lists his disabilities as “major depression”, “war victim” and “post traumatic syndrome”. In response to the question “How often do your disabilities, illnesses or injuries make it difficult for you to…sit, stand, walk drive a car and use public transport, lift, carry, bend, operate everyday appliances, sleep, manage your personal affairs, care for yourself and care for others”, the box “all the time” has been marked with an X. At question 20 of the document, the claimant has confirmed he required help from someone else to fill in the form. I infer from this that the document was completed on the claimant’s behalf by someone else who recorded the claimant’s responses to the various questions asked.
There is a Centrelink treating doctors report completed by Dr Moawad dated

22 November 2007. The report records that the claimant had one or more medical conditions which had a significant impact on his ability to function. Diagnoses of major depressive illness and “post traumatic syndrome” are recorded. In response to the question “Does the patient have any other medical conditions which are generally well managed and cause minimal or limited impact on ability to function?” the doctor recorded “ch. Back strain”. Infer the “ch” is shorthand for “chronic”.
A Job Capacity Assessment Report prepared after a face-to-face assessment of the claimant on 22 February 2008 refers to post-traumatic stress disorder, depression, chronic back strain, and chronic pain associated with shrapnel in the claimant’s arm, leg, and the back of his neck. The claimant reported that episodic pain prevented lifting and reduced strength, and resulted in pain using stairs. There were also reduced sitting and standing tolerances.
A Job Capacity Assessment Report dated 2 April 2008 records that an Arabic interpreter assisted with the review of the claimant. The report makes reference to the claimant suffering from post-traumatic stress disorder, depression, spinal disorder and chronic back strain, that was treated by massage, Panadol and Panadeine. There was also reference to chronic pain, an “[s]chrapnel in arm, leg, back of neck - multiple metal pieces embedded”. The functional impact of post-traumatic stress disorder included that he "wishes to argue with [his] wife each day (for no reason)", and experienced nervousness, insomnia, fear and avoidance of situations that may trigger trauma memories.
The functional impact of depression involved frequent crying, lethargy, agitation, and social isolation. With respect to chronic pain it is recorded that the “[c]lient reported: episodic pain prevents lifting, eating for more than 2 min before a break, reduces strength (hand shakes). Increases worry and hopeless (depressive) thinking. Pain using stairs.”
The report records that the “PTSD…is considered to be permanent.” The condition was considered stabilised (no significant functional improvement is expected within the next two years), and that there was “…significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work. Dr documented: Sad / fear / phobia, lethargic, lack of concentration.”
With respect to the shrapnel in the claimant’s arms and legs, the following was recorded:
“No functional improvement is expected within the next two years. Table 20 was used and a rating of 10 assigned. Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/ impact on work attendance. The client reported interference of pain in daily tasks involving stairs, lifting, and eating..”
The report records: “Client limited with pain from shrapnel inside arms, leg, jaw/ neck and from back pain. Reduced sit/stand tolerances. Possible reduced physical fitness.”
It is stated that chronic pain reduced the claimant’s mobility at work. Because of his chronic pain, it was determined that the claimant did not demonstrate adequate mobility, postural tolerance, and endurance for full-time work. Due to chronic pain from shrapnel underneath the skin, the claimant experienced chronic and episodically reduced function in his limbs and neck which reduces mobility and manual handling.

Clinical records

There is a single entry, which relates to an attendance on 26 May 2000, recorded in Dr Al-Taiff’s progress notes produced under direction. While I cannot decipher some of the notes (that are hand written), I am satisfied that the notes make reference to “chronic recurrent low back pain”. The words “disc prolapse” can also be discerned, although it is not clear whether this is a diagnosis or whether it is raised as a possible explanation for the complaints.
Dr Ho’s clinical records include the following notes of an attendance on 8 April 2003:
“sore back lumbo-sacral area for 2 days no radiation to leg
no injury
try to put on his pant after shower and felt a sharp click in the back
went acupuncture once
SLR 75 degree reflexes normal no sensory loss”

On 29 September 2004 the doctor recorded as follows:
“sore back again after oversea[sic] trip; sitting too long
no carrying too heavy lugage[sic]
no radiation to legs
want Microwave heat treatment and cupping”
On 8 November 2004 the doctor recorded:
“sore back is bad again; no recent injury
Developed sore back watching TV 20 hours a day during the Iraq war
No radiation of pain
Had acupuncture”
The first entry in Dr Moawad’s clinical notes is dated 25 October 2007. On 22 November 2007 there is reference to major depression. There are similar references in 2008, 2009, 2010, and 2015.
The first reference to back symptoms in Dr Moawad’s notes was on 1 September 2011, at which time the doctor recorded that there was a one month history of back pain. On

8 September 2011 there is further reference to back pain. The notes record “?back disc lesion”. A CT scan of the lumbar spine was ordered. The clinical notes dated 14 September 2011 refer to a “L1 L2 disc lesion 1 year”. The notes state “Back: tender, restriction present, not hot, not swollen.” There is reference to back pain on 11 November 2011. On 21 December 2011 there is reference to “Joint pain. Joint stiffness. Back pain. Polymyalgia”. The reason for contact was recorded as being “L1 L2 disc lesion”. On 15 November 2013 there is reference to neck pain, the reason for contact being “L1 L2 disc lesion”. On

15 January 2016 the claimant attended with a one week history of back pain and polymyalgia. The reason for contact on that occasion was again “L1 L2 disc lesion”.
There are no references to back pain in the doctor’s notes in the years 2007, 2008, 2009, 2010, 2012, 2014, and 2015.
The claimant attended for treatment on 27 May 2016 with a history of back pain. Reference is made to an “MVA” on 25 May 2016. The notes record that the claimant’s back was tender, not hot, not swollen, and that there was no restriction. “Back muscle strain” was diagnosed along with major depression. On 30 May 2016 the claimant complained of neck and back pain. The notes record that these complaints were “due to MVA”. Similar entries were recorded on 10 June 2016. On 4 July 2016 there was only reference to back pain. On

11 July 2016 the notes contain references to back and neck pain. On 18 October 2016,

8 December 2016, 30 March 2017, and 18 May 2017 there is reference to back muscle strain.
A CT scan of the lumbar spine was ordered on 18 May 2017. From 23 May 2017 the references in the clinical notes to back symptoms record that the reason for contact was “L4/L5 disc lesion”. The notes related to attendances in 2017, 2018, 2019 and 2020 refer to an L4 L5 disc lesion.[1] On 8 October 2020 an MRI scan of the lumbar spine was requested.
[1]

Radiology

The following is a summary of the radiological reports:
(a)    13 November 2004 - X-ray report -The report is addressed to Dr Ho, and relates to the lumbosacral spine. Reference is made in the report to “[c]urrent lumbar back pain.” The report records findings of mild multi-level spondylosis and minor facet joint degenerative disease from L4 to S1. No compression fracture is seen and no destructive bony abnormality demonstrated. The report records that an elongated 8mm foreign body projects over the L5/S1 intervertebral disc, and lies on the soft tissues. The foreign body “presumably represents a piece of shrapnel.”
(b)    13 September 2011 - CT scan lumbar spine report – clinical history “Back disc lesion?” generalised bulge at L1/2. L4/5 broad-based posterior disc protrusion.
(c)    27 May 2016 X-ray cervical and lumbar spine report – Clinical notes “MVA. Pain” - no fracture or dislocation in the cervical spine. Mild spondylosis with marginal osteophytes. Left C3/4 neural exit foraminal stenosis. No fracture or dislocation in the lumbar spine. Moderate spondylosis at L1/2. Mild spondylotic change at L3/4 and L4/5. Facet joint arthrosis at L4/5. No acute injury evident.
(d)    19 May 2017 - CT scan lumbar spine report– Degenerative disease at L1/2. Broad-based disc bulging at L4/5 producing a little compression on the adjacent thecal sac.
(e)    5 July 2017 CT guided epidural injection – performed at L4/5 level.
(f)    14 September 2020 - CT scan lumbar spine report – moderate loss of disc space at L1/2. L4/5 right posterior disc protrusion and the right L5 nerve root is touched by the disc and appears swollen.
(g)    15 September 2020 CT guided epidural injection performed at L4/5 level.

SUBMISSIONS

Insurer’s submissions

The insurer relies on written submissions dated 6 October 2023. The insurer’s submissions at [9] – [26] refer to evidence it argues established that the claimant had a significant pre-accident history of physical and psychological symptoms and injuries. The insurer argues that the claimant’s failure to provide an accurate history of his pre-accident medical history “raises real concerns” with respect to his reliability and credibility as an historian.
The pre-accident history referred to by the insurer includes complaints of a sore lumbosacral region, back symptoms, and psychological symptoms. A range of other complaints recorded in clinical notes and Centrelink documents are referred to, including injuries related to an assault at work, the presence of shrapnel embedded in his arm, leg and the back of his neck, osteoarthritis in both knees, gastrointestinal issues, hypertension, and diabetes.
The insurer argues that the claimant has a lengthy and significant medical history which is “highly” relevant to the assessment of his entitlement to damages.
The insurer submits that the medico-legal evidence relied on by the claimant is dated, and not reflective of his current physical and psychological capacity. For that reason, it is argued that little, if any, weight ought be given to that evidence.
Further, it is argued that the claimant’s qualified doctors were not aware of his extensive history of physical and psychiatric conditions. That being the case, it is submitted that the claimant’s qualified doctors were not in a position to provide an accurate opinion in relation to causation, diagnosis, or any ongoing treatment or care requirements.
A report of Dr McIntosh, biomechanical engineer, is relied on by the insurer. Dr McIntosh expressed the opinion that the accident involved a low speed collision, that he described as a “low severity rear end collision”. The insurer also relies on opinions from A/Prof Shatwell,

Dr Keller, Dr Korber, and Dr Vickery, together with the certificates and reasons of Medical Assessors Menogue and Prior.
The thrust of the insurer’s case is that any injuries the claimant suffered as a result of the accident have resolved. It is submitted that no award should be made for any head of damages apart from past out of pocket expenses, and that the award for that head should be limited to the s 83 payments made by the insurer.
The insurer also relies on further written submissions dated 24 October 2023. The submissions relate to a revised schedule of past treatment expenses provided by the claimant, including expenses related to Medicare and Quigg Street Medical Centre.
In oral submissions, Mr Jones confirmed that the insurer did not resile from its primary case that the claimant’s accident caused injuries have resolved. In the alternative, it was argued that even if it is found that the claimant has an accident caused injury that persists, there is no disability that flows from that injury that would sound in damages.
Noting the claimant’s reliance on the findings of Medical Assessor Menogue, Mr Jones argued that there were no objective clinical findings by the Medical Assessor when he examined the claimant. It was further argued that because the Medical Assessor did not have the Centrelink records, he did not have the full picture, and this diminishes his opinion.
The insurer argued that the effects of the accident were for a closed period, and that the level of disability complained of was “far beyond” what would be expected of a soft tissue injury.
As to the absence of back complaints in some of the years leading up to the accident, the insurer argued that this was indicative of the claimant living with those complaints, rather than supporting a finding that he did not experience back symptoms.
With respect to the commercial care claim, it was argued that the claimant’s wife has been in receipt of a carer’s pension since shortly after she arrived in Australia, and that the pension related to care she provided to her husband. It was submitted that the evidence from the claimant’s wife was unclear in terms of any additional assistance she was providing as a result of the claimant’s accident caused injuries. The insurer also drew attention to the absence of evidence from the claimant’s sons in relation to the assistance they provided to him.
Mr Jones argued that there was “real uncertainty” with respect to whether, and if so when, the gratuitous assistance currently being provided to the claimant would come to an end. Miller v Galderisi [2009] NSWCA 353 (Miller) was relied on in support of the insurer’s submission that no award for future commercial care should be made.
It was submitted that if any award were to be made for future commercial assistance, because there were so many unknows, it should be by way of a buffer. It was also argued that vicissitudes would feature heavily. Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95 was relied on in this regard. The claimant’s pre-accident work limitations were pointed to, as were his pre-existing complaints. It was submitted that any buffer awarded would be in the range of $20,000 - $30,000. As to treatment, the insurer’s primary position was that no award should be made other than with respect to the s 83 payments it had made.

Claimant’s submissions

The claimant relies on written submissions dated 11 August 2023. It is argued that as a result of the accident the claimant suffered injury to his cervical spine and lumbar spine, together with an aggravation of persistent depressive disorder. A range of associated disabilities are alleged.
The submissions concede that the claimant has no entitlement to damages for non-economic loss, and confirm that no claim is made for economic loss or past domestic assistance.
Future out of pocket expenses in the amount of $25,800 are claimed. Those expenses relate to the need for GP review, medication, psychological and psychiatric review, pain management and gym based exercise programs, physical therapy and home modifications.
With respect to future domestic assistance, it is argued that the claimant should be awarded no less than three hours per week domestic assistance inside and outside by reason of the injuries arising from the accident. An award in the sum of $92,700 is contended for.
In oral submissions, Ms Gumbert accepted that the claimant experienced psychiatric and physical complaints prior to the accident. She submitted that the evidence did not support a finding that the claimant had significant back problems in the years leading up to the accident. She argued that he made immediate complaints of back symptoms after the accident, and that his back was worse as a result of the accident. It was submitted that the nature of the claimant’s back injury was an aggravation of pre-existing but “not very symptomatic” changes in his back. The claimant relied on Medical Assessor Menogue’s findings that he suffered a soft tissue injury that gave rise to a permanent impairment.
It was conceded that the claimant had a “very traumatic past”, and that his psychological condition was the primary reason for his disability pension. It was, however, argued that the accident has resulted in a psychiatric injury, and that the injury would sound in damages for treatment. It was conceded that there was no evidence that the psychological injury resulted in any tangible need for care.
In Ms Gumbert’s submission, the future commercial care claim is really relates to the outdoor duties the claimant is not able to perform. It was conceded that any additional household, or indoor duties, performed by the claimant’s wife will probably continue to be provided by her. Ms Gumbert confirmed that the care claim was based on the need for three hours assistance with outdoor gardening, including lawn mowing and tree maintenance.
Ms Gumbert argued that the circumstances in this case, whereby the claimant’s wife was now performing the outdoor assistance he was no longer able to perform due to his accident caused injuries, were distinguishable from the situation in Miller, and that an award should be made for future commercial care with immediate effect. It was argued that White v Benjamin [2015] NSWCA 75 (White) supported this approach. Ms Gumbert submitted that consideration of the family circumstances was required, that the claimant’s wife had been forced to step in to provide outdoor assistance, and that the claimant gave evidence that he would pay for commercial assistance if he could afford to do so. While she agreed that an award by way of a buffer could be made if a mathematical calculation was not possible,

Ms Gumbert argued that the evidence supported a mathematical calculation, and that an award should be made on that basis.
The oral submissions in relation to future out of pocket expenses reflected the claim set out in the claimant’s written submissions and schedule of damages, other than with respect to home modifications, which weren’t pressed.

FINDINGS

Back

I find that since at least 1995 the claimant has experienced pain in his lumbar spine, including his lower lumbar spine. The Centrelink records, together with the records of Drs Al-Taiff, Ho and Moawad support these findings.
I find that prior to the accident the claimant suffered from degenerative changes in his lumbar spine, changes that are referred to in the X-ray report dated 13 November 2004 and the CT scan report dated 13 September 2011. Those investigations were ordered by treating doctors to investigate complaints of back symptoms made by the claimant, and provide further evidence that he experienced back symptoms for many years prior to the accident.
In his oral evidence, the claimant said that in the years leading up to the accident he did not have “many pains” in his lower back. The clinical notes record that the claimant attended Dr Moawad’s practice on only one occasion in 2014 and 2015. The notes relating to those attendances do not contain any reference to back symptoms. Dr Moawad’s notes record that the claimant attended the doctor on four occasions in 2016 prior to the accident.[2] The only reference to back pain is recorded in the notes for the attendance on 15 January 2016. Despite the absence of any reference to attendances for back pain in Dr Moawad’s notes in 2014 and 2015, I consider it improbable that, given regular complaints of back pain since at least 1995, that were described by Drs Al-Taiff[3] and Moawad[4] as being “chronic”, the claimant did not experience back pain in those years.
[2] 5 January 2016, 8 January 2016, 15 January 2016, 4 February 2016.
[3] See clinical notes related to attendance on 26 May 2000.
[4] See Centrelink treating doctor’s report dated 22 November 2007.
In his oral evidence, the claimant agreed that before the accident he was only undertaking light work associated with taxi driving because of his pre-existing health concerns. He agreed that he only worked six to eight hours a day. The claimant confirmed that he was right handed. He agreed that his right hand would become fatigued due to the shrapnel in the hand, and that he limited the weights he carried because of this. He also had problems with his left leg because of shrapnel in that limb. His evidence, that I accept, was that despite these limitations he was still able to drive a taxi and mow the lawn. He agreed that he could not work full time before the accident because of the “health problems” he was experiencing.
I am satisfied that the claimant’s inability to work full time was, at least in part, the result of his back pain and pain associated with the shrapnel in his right forearm and hand, left wrist, left hip and left leg. I consider it probable that the predominant cause of his unfitness for work was his pre-existing psychiatric condition. While the Centrelink material makes reference to back pain, chronic pain, and the presence of shrapnel, the impression I have of that material is that his psychiatric condition was the primary cause of his disability and incapacity.
The claimant’s evidence is that immediately after the collision he felt pain in the base of his neck and lower back, that on arriving home he took Panadol for pain, and that when he awoke the following day his pain was significantly worse. He said that as a result of the back injury that was caused by the accident, he has experienced significant ongoing pain and disability.
Dr Moawad’s clinical notes confirm that the claimant attended his rooms on 27 May 2016, two days after the accident, complaining of back pain following an “MVA” on 25 May 2016. I am satisfied that these records, combined with the claimant’s evidence, support a finding that the claimant suffered an injury to his back as a result of the accident. Dr Moawad’s clinical notes lend support to the claimant’s evidence that he has experienced ongoing back pain since the accident.
I accept the claimant’s evidence that he has experienced ongoing pain in his lumbar spine since the accident. I prefer Medical Assessor Menogue’s opinion that the claimant suffered soft tissue injury to his lumbar spine as a result of the accident. The Medical Assessor found that there was no inconsistency in the claimant’s performance on examination. I am not persuaded that the absence of the Centrelink records detracts from his opinion with respect to either diagnosis or causation. While he did not have the Centrelink records, the Medical Assessor did have Dr Moawad’s records, and referred to those records in his reasons. I find that the claimant suffered soft tissue injury to his lumbar spine as a result of the accident. I consider that this finding is also supported by Dr Marsh’s opinion. Like Medical Assessor Menogue, he did not have the Centrelink records. However, he was aware of a pre-accident history of back symptoms, treatment and investigations[5], and found that the claimant suffered whiplash injury to the low back resulting in musculoligamentous strain as a result of the accident.
[5] See reports of Dr Marsh dated 31 May 2017 and 8 August 2017.
As recorded earlier, the radiological evidence supports a finding that degenerative changes were present in the claimant’s lumbar spine prior to the accident. Although he thought that the effects of the accident had resolved, in his report of 5 August 2022, A/Prof Shatwell expressed the opinion that there may have been minor soft tissue injuries causing exacerbation of lumbar spondylosis in the accident. Likewise, Dr Keller diagnosed temporary exacerbations of long standing, pre-existing lumbar degenerative changes. I consider it probable, and I find, that as a result of the accident the claimant aggravated degenerative changes in his lumbar spine. Unlike A/Prof Shatwell and Dr Keller, I am satisfied, on balance, that the exacerbations of the pre-existing degenerative changes have persisted.
I find that as a result of his accident caused back injury the claimant experiences ongoing pain and disability. I am satisfied that this injury has resulted in additional restrictions with respect to bending, standing for long periods, pulling, pushing, and lifting.

Neck

The first mention of a neck injury recorded in Dr Moawad’s notes was on 30 May 2016, five days after the accident. The claimant has told some doctors that his neck symptoms have resolved and others that, while the symptoms had improved, they had not resolved. In his statement, the claimant said that while he experiences symptoms and pain in his neck, they were not as bad as the low back pain.
In contrast with the position in relation to his back, there have been no radiological investigations ordered in relation to the claimant’s neck. He told Dr Marsh in December 2016 that his neck injury had improved by 90%. When he was examined by Dr Davis in July 2017, he told the doctor that his neck symptoms had resolved. In February 2019 Dr Fearnside took a history that neck symptoms persisted. Dr Buckley took a similar history in July 2019. He told Dr Keller in November 2021 that he experienced intermittent neck pain.

I am satisfied that the claimant’s complaints of neck pain when he saw Dr Moawad on

30 May 2016 provide contemporaneous support for a finding that he suffered a neck injury as a result of the accident. I accept Medical Assessor Menogue’s opinion that the neck injury “promptly resolved”. I find that the claimant suffered soft tissue injury to his neck as a result of the accident. I find that it is more probable than not that by the time he was assessed by Dr Davis on 4 July 2017, the soft tissue injury to the claimant’s neck had resolved.

Psychological condition

The claimant’s evidence was that in the years leading up to the accident his psychological condition was “O.K”, “good”, and that his psychiatric health became worse after the accident. I do not accept his evidence that his psychological condition was “O.K”, “good” prior to the accident. I find that the claimant suffered from post-traumatic stress disorder and depression for many years prior to the accident. The Centrelink records, together with the records of

Drs Al-Taiff, Ho and Moawad support this finding. Among other evidence, Dr Moawad’s clinical notes refer to Aropax being prescribed in the period 2008 – 2012. On 7 November 2014 his notes record that Aropax was ceased and a prescription for Zoloft was added. An entry on 9 November 2015 refers to Cymbalta. These medications are, as recorded by Medical Assessor Pryor, antidepressant agents; they would not, in my view, have been prescribed unless the claimant was experiencing psychological symptoms.
Dr Cock’s recorded a history that there had been a deterioration in the claimant’s psychiatric condition following the accident, and expressed the opinion that the claimant developed major depressive disorder as a result of the accident. I do not accept Dr Cocks’ opinion; he did not have access to the Centrelink records or Dr Moawad’s clinical notes that disclose a long history of psychological symptoms.
I do not accept Dr Vickery’s opinion that there was no psychiatric injury as a result of the accident. Other than referring to the existence of a pre-existing psychiatric condition, I am not satisfied that the doctor’s report discloses the basis of his opinion in this regard.
While he did not have the Centrelink records, Medical Assessor Prior did have Dr Moawad’s clinical notes. He took into consideration the inconsistency between the claimant’s denial that he had suffered, and been treated for, a psychiatric condition or psychiatric symptomatology prior to the accident, and the documented pre-accident history of depression contained in Dr Moawad’s notes. The Medical Assessor found that there had been a deterioration in the claimant’s condition following the accident, due to his chronic pain perception and physical limitations. Despite the inconsistency in the pre-accident history provided by the claimant, and having taken into consideration Dr Moawad’s records, he found that the claimant’s pre-existing depressive disorder had been aggravated by the accident, and that it gave rise to a permanent impairment. I prefer the Medical Assessor’s opinion with respect to both diagnosis and causation. The Medical Assessor provided a well-reasoned basis for his opinion, and was aware of the pre-existing psychological/psychiatric diagnosis, symptoms and treatment. I find that as a result of the accident, the claimant suffered an aggravation of his pre-existing depressive disorder, and that the aggravation persists.

ASSESSMENT OF DAMAGES

Past out of pocket expenses

The insurer has paid s 83 expenses in the sum of $9,774.75. In addition to those payments, a claim is made for the sum of $300 with respect to consultations at Quigg Street Medical Centre on 24 May 2021 and 24 April 2022.
The insurer’s position is that, if it is accepted that the claimant’s ongoing back complaints are related to the subject accident, it agrees on the past out of pocket expenses claimed, namely $9,774.75 in section 83 payments and $300.00 for the two consultations at Quigg Street Medical Centre, totalling $10,074.75[6].
[6] Message from the insurer’s solicitor to the Commission dated 29 November 2023.
I have found that the claimant suffered an injury to his back as a result of the accident, the effects of which persist. I am satisfied that the two attendances at Quigg Street Medical Centre relate to his accident caused back injury. Those attendances were reasonable and necessary. I allow the $300 claimed, and assess past out of pocket expenses in the total sum of $10,074.75.

Future out of pocket expenses

The claimant seeks an allowance of $5,000, by way of a buffer, for reviews by his GP. The claimant’s evidence was that he sees his GP every month, sometimes twice a month, and that “all he does [is] prescribe me the medication and goodbye”. Dr Moawad’s clinical notes record that in the 12 months prior to the accident he attended the doctor’s practice on four occasions. Since the accident he has attended the doctor regularly until the notes cease in May 2022. Some of his attendances on the doctor were with respect to matters unrelated to the injuries I have found were caused by the accident. I am satisfied that, as a result of his accident caused injuries, it is likely that he will attend his GP more frequently than he otherwise would have. I allow a buffer of $5,000.
The claimant takes additional pain killing medication to deal with pain arising from his back injury. Such medication, in my assessment, is reasonable and necessary and relates to his accident caused injuries. I allow a buffer of $5,000.
I am satisfied that, as a result of the aggravation of his pre-existing depressive disorder, the claimant is likely to benefit from psychological and psychiatric review. I allow a buffer of $2,000 for this treatment.
I am not persuaded that it is likely the claimant will need either physical therapies as a result of his accident caused back injury, or that a gym based exercise program is reasonable, necessary, or required as a result of his back injury. I make no allowance for either.
The claimant seeks an allowance of $9,200 with respect to a referral to a multi-disciplinary pain management program. The claimant relies on Dr Davis’ opinion, contained in his

4 July 2017 report, in support of this claim. In my view, Dr Davis does not adequately explain why such a referral is required, and in what way it relates to the accident caused injuries.

Dr Davis is the only doctor who has recommended a pain management program; I have seen no such recommendation made by another medico-legal doctor or a treating doctor. Dr Davis did not repeat the recommendation in his subsequent report dated 12 December 2017. I am not persuaded that a referral to a pain management program is reasonable, necessary, or required as a result of the claimant’s accident caused injuries. I make no allowance for such a program.
I make no allowance for home modifications, that claim being expressly withdrawn at the assessment.
I assess the sum of $12,000 for future out of pocket expenses.

Future paid care

There is no claim for future gratuitous care. Future paid care of “no less” than three hours a week is claimed at $45 an hour for life, and an award of $92,700 is sought for this head. At the assessment the claim was refined so that it is now, primarily, based on the outdoor gardening and yard work the claimant says he can no longer perform.

Evidence

The claimant’s statement records that since the accident he has been “highly dependent” on his wife and children for the provision of domestic and other assistance. He states at [48] that his “…sons assist me with mowing the lawn and things in the garden, but my wife attends to the day-to-day things to include cooking and all the other chores in the house that I cannot do.”
The claimant gave evidence that he lived in a one level home with both a front and back lawn. He explained that prior to the accident he would mow the lawn, do the edges, clean between the trees, prune and cut the trees, and clean up. He gave evidence that he had fruit trees, including pomegranate and lemon trees, in his garden. While large trees in his front yard had recently been removed, the citrus trees remained. His evidence was that his front lawn was the same size as the room in which the assessment was conducted, and that the back lawn was four times the size of the room. Those present at the assessment will have a clear sense of the dimensions he was referring to. The claimant’s evidence was that prior to the accident he would spend, each week, an hour and a half mowing the lawn and cleaning afterwards, and the same amount of time cutting the trees. He agreed that during winter the lawn would not require mowing as often. I accept the claimant’s evidence with respect to these matters.
His evidence at the assessment was that his wife was doing that work now because he had “no one else to do it”. In response to a question from Mr Jones about pruning the trees, the claimant responded: “She does all that, my wife, now”. He later said “[m]y wife – my wife she do everything now”, and that he did not have anything to do with the fruit trees after the accident. His evidence was that he tried to mow the lawn a week or so after the accident, but stopped because of back pain. He said the back pain has not improved since the accident.
The statement from the claimant’s wife records that since the accident the additional care she has provided to the claimant included lawn mowing and gardening. She did not state for how long she performed these activities each week.
The evidence discloses that the claimant has three sons, two in their mid-30’s and one in his mid-20’s[7]. There is no evidence from any of the claimant’s sons.
[7] See the claimant’s statement dated 19 September 2023 at [9] and the report of Dr Davis dated 4 July 2017.
In his report of 21 December 2016, Dr Marsh recorded a history that prior to the accident the claimant would look after the yard and mow the lawn. The report records that after the accident he was not able to undertake outside or maintenance duties, and that his son or wife performed those duties. The doctor thought that the claimant was not, at the time he reported, fit to carry out the heavier activities of gardening, maintenance and lawn mowing.
In his report of 14 July 2017, Dr Davis recorded that the claimant was no longer able to cut the grass, do yard work, or undertake repairs and refurbishments at home and that his wife “now does the mowing”. In the doctor’s opinion, the claimant required “an estimated level of 12 hours [assistance] per week…”. In his report of 12 December 2017, Dr Davis recorded that the claimant remained restricted in his ability to assist his wife with domestic chores or to undertake normal yard work and maintenance activities, and that he required domestic assistance, related to both indoor and outdoor work, of “around” 10 hours a week on an ongoing basis.
In his report dated 8 September 2017 Dr Shatwell recorded a history that the claimant’s wife did most of the gardening. In his report dated 22 November 2021, Dr Keller recorded a history that the claimant was unable to perform cooking, cleaning or yard work, and that these tasks were performed by his wife. The doctor expressed the opinion that the claimant had ongoing restrictions with regard to moderate to heavy cleaning and yard work, and that it was likely that he required assistance with respect to this work. In the doctor’s opinion, these needs related to his constitutional spinal degenerative complaints, and did not relate to the effects of the accident. In Dr Keller’s opinion, there was no prospect for a full recovery or a return to unrestricted home duties.
In his report dated 7 February 2019, Dr Fearnside recorded that the claimant’s “son or wife mowed the lawn and tended to the garden which he had done prior to the accident”. In his opinion, the claimant would require some domestic assistance and assistance with yard, garden and handyman work.
As can be seen, the claimant has provided differing accounts with respect to who has undertaken the outdoor work since the accident. I consider it probable that his wife and one or more of his sons have provided assistance with gardening and yard work since the accident. The medical evidence, in my view, supports a finding that he is no longer able to perform that work.

Authorities

While the court in Miller found that an award for future commercial assistance could not be justified on the facts in that case, it was held at [18] that there is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases. The court held at [23] that the question is whether the damage which has occurred will result in a compensable loss at some future time, taking into account relevant contingencies.
In Gordon v Truong; Truong v Gordon [2014] NSWCA 97 (Gordon), the majority (Macfarlan JA and Simpson J), distinguished Miller on the facts, and held that the primary judge erred in largely rejecting a claim for damages in respect of future domestic assistance. Macfarlan JA was a member of the court in Miller.[8] The majority determined that the unstated assumption of fact by the trial judge in declining the award was that the gratuitous assistance provided to the plaintiff would continue to be provided, as it had been in the past. It was held that an inference could be drawn that the plaintiff's children and wife would eventually cease to provide gratuitous domestic assistance. The majority held that the plaintiff was entitled to an award of domestic assistance at commercial rates.
[8] As was Basten JA, who dissented with respect to this issue in Gordon.
A different set of facts to those in Miller resulted in a different outcome with respect to an award for future commercial care in Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 (Howarth)[9]. What Miller, Gordon, Howarth, and White illustrate is that each case will turn on its own facts.
[9] See Tobias AJA (with whom Basten and Meagher JJA agreed) in particular at [148] – [153].

Findings and award

I make the following findings:
(a)    prior to the accident, despite his pre-existing physical complaints and limitations, the claimant performed outdoor gardening and yard work, including mowing lawns and tree maintenance, on average two hours a week;
(b)    the accident caused injury to the claimant’s lumbar spine, and related pain, have resulted in restrictions with respect to bending, standing for long periods, pulling, pushing, and lifting, and that these restrictions are over and above the restrictions he experienced prior to the accident;
(c)    while he attempted to perform some gardening work a few weeks after the accident, the claimant has not been, and will not at any time be, able to perform that work;
(d)    the claimant’s inability to undertake the gardening and yard work is a result of the accident caused injury to his lumbar spine, and
(e)    the claimant’s wife and one or more of his sons have provided assistance with gardening and yard work since the accident.
While I consider it probable that one or more of the claimant’s sons have provided assistance with the outdoor work that the claimant performed prior to the accident, the evidence does not allow me to make a finding as to the extent to which such assistance has been provided, or will continue to be provided.
I do not accept Ms Gumbert’s submission that the approach in Miller does not apply to the claim based on the garden maintenance work. I am unable to decern a difference between the provision of assistance inside the house and the provision of assistance with respect to gardening and related outdoor work.
The claimant’s wife is currently 54 years of age.[10] I consider it appropriate to draw an inference that, while she will continue to perform the garden maintenance work for a further five years, she will cease to do so on account of age related factors. Other than with respect to their age, I have no evidence as to the circumstances of the claimant’s sons. No doubt they have their own lives to lead. The likelihood that the claimant’s sons will not be willing and able to visit their parents on a sufficiently frequent basis to help with the garden and yard work is a contingency which should be taken into account: Miller at [21]. Having taken into consideration the claimant’s family circumstances, I am satisfied that a need for commercial assistance is likely to arise in the future, after the availability of the gratuitous assistance provided by the claimant’s wife and sons ceases, as a consequence of his accident caused back injury.
[10] His wife’s date of birth was confirmed by his solicitor in a message to the Commission on 28 November 2023.
The insurer argued that if an allowance is made for paid care, it should be by way of a buffer, given the “imponderables”. The claimant argues that an allowance based on a mathematical calculation should be made. I consider that the approach advocated for by the claimant is the appropriate approach to take, and that the evidence allows me to do so.
I have determined that it is appropriate to draw and inference that the claimant’s wife and one or more of his sons will continue to provide him with assistance with respect to the gardening and yard work for a further five years. I find that, thereafter, he will require commercial care of two hours a week for life. The claimant is presently 59 years old. His life expectancy is 26 years on the medium tables. An allowance of $90 a week (2x$45) for 21 years (multiplier 685.6) deferred for 5 years (deferred multiplier 0.784), results in the sum of $48,376. I have reduced this amount by 15% to reflect the effects of age on the claimant’s ability to perform the outdoor work over time, and the effect that conditions and impairments unrelated to the accident would have had on the claimant’s ability to perform the outdoor work. Those conditions include: the bilateral shoulder impairment that Dr Buckley thought was probably related to osteoarthritic change in the shoulders; osteoarthritis in the claimant’s knees and right hip; the degenerative changes in his spine; the diagnosed polymyalgia; and the shrapnel in his right arm and hand, left wrist, left hip and leg. After a deduction for vicissitudes, I assess $41,120 for this head.
With respect to the household and personal care provided by the claimant’s wife, over and above that provided prior to the accident, I consider it likely that she will continue to provide that care, as she has in the past. I am not persuaded that she will cease providing that care, and that commercial care will be required. I make no allowance.

Assessment of Damages Summary

Under s 94(1)(b) of the MAC Act, I am required to make an assessment of the amount of damages that a court would be likely to award.
I assess the claim as follows on the findings set out above:
·      Non-economic loss  NIL
·      Past loss of earnings                  NIL
·      Future loss of earnings               NIL
·      Past out of pocket expenses     $10,074.75
·      Future out of pocket expenses $12,000
·      Past domestic assistance   NIL
·      Future commercial assistance $41,120
Total $63,194.75
The claimant’s damages are to be reduced by, and the insurer is to have credit for, s 83 payments in the sum of $9,774.75.

DRAFT REASONS

On 1 December 2023 I issued my reasons in draft at the insurer’s request so that matters relating to costs could be addressed. I also invited submissions about obvious errors. I now have submissions from the parties with respect to costs and disbursements[11]. Neither party identified any obvious errors.

COSTS

[11] The insurer’s submissions dated 7 December 2023 and the claimant’s submissions dated 8 December 2023.

Submissions

The insurer relies on its offer of $85,000, inclusive of out of pocket expenses, costs, and disbursements, made in writing on 22 December 2022. The insurer argues that at the time the offer was made, the parties were yet to incur the costs and disbursements associated with referring the claim to the Commission for the assessment of damages, nor incur the costs associated with the matter proceeding to assessment, including counsel’s fees.

The insurer submits that the operation of reg 13(3) and section 94A(3)(a) of the MAC Act is to encourage early settlement of claims in accordance with section 5(1)(b) of the Act. The insurer argues that its offer was in an amount that was “considerably more” than the combination of damages assessed plus the total maximum regulated costs and disbursements that would have been recoverable by the claimant when the offer was made. In this regard, the insurer submits that the maximum regulated costs awardable on an assessment of $63,194.75 in December 2022 would have been $8,811.90 plus disbursements of $7,020.32, a total of $15,832.22 plus GST or $17,415.44 inclusive of GST, noting that the value of a monetary unit when that offer was conveyed was $108.46. It is argued that “by straightforward deduction”, once the then recoverable costs are taken into account, the damages component of that inclusive offer was $67,584.56, “substantially more” than the $63,194.75 assessed.
The insurer argues that as a result of the claimant’s failure to accept its “obviously reasonable offer”, resolution of the claim was unnecessarily delayed, his application proceeded to an unnecessary assessment in the Commission, other matters waiting to be assessed were delayed, and both the insurer and claimant incurred unnecessary costs and disbursements. In light of these matters, the insurer submits that the regulated costs to be awarded to the claimant should be limited to the costs he would have recovered on the sum awarded, $63,194.75, when the insurer’s offer was made in December 2022.
The insurer has also provided a schedule of costs and disbursements in response to the claimant’s schedule dated 28 November 2023. A copy of the 22 December 2022 offer is attached to the insurer’s costs submissions, together with an invoice from the insurer’s counsel.
The claimant argues that the insurer’s offer was made prior to his claim for economic loss being withdrawn on 1 August 2023. He submits that the insurer’s offer of 22 December 2022 “has no relevance to the claim as it ultimately proceeded” to assessment. This is because the claim had changed to remove a claim for economic loss.
The claimant relies on a subsequent written offer made by the insurer in writing on 16 October 2023 in the sum of $40,469.75, before any allowance for costs. That offer, it is noted, is below the damages that have been assessed. It is argued that the costs allowed should be at the maximum, without any deduction.
The claimant has provided with his costs submissions a copy of his offer made in writing on 1 August 2023, in which the claim for past and future economic loss was formally withdrawn, and the insurer’s written offer of 16 October 2023.

Determination - costs

The insurer’s offer of 16 October 2023 was broken down, so that the allowances for each head of damages are clearly set out, together with the allowance made for costs and disbursements. However, the offer made on 22 December 2022 is not broken down in a similar way; it is made on a global basis. That being the case, I do not know what allowances were made for each head of damages, and whether any allowance was made for economic loss.
When the 22 December 2022 offer was made the damages claim included economic loss. The offer was made in response to the claim for damages as formulated at the time the offer was made. The claim for economic loss was removed on 1 August 2023, after that offer expired[12]. The insurer’s subsequent written offer, in a lower amount, was made in response to the claim for damages as formulated when it was assessed. That offer was for an amount less than I have assessed. In these circumstances, I do not propose to reduce the claimant’s costs.
[12] The offer was open for 14 days.

Attendances on 22 June, 29 June, 21 August and 3 October 2017, 22 January 22 February, 26 March,
26 July, 6 September, 9 October, 11 December 2018, 18 June, 15 August, 12 September and 14 November 2019, 9 January, 5 June, 6 July, 17 August, 28 September, 8 October, 15 October, and 10 December 2020, 4 March, 29 March, 24 May, 29 June, 27 July and 3 December 2021, 28 April 2022.

[2023] NSWPIC 673

11 December 2023