Bao v QBE Insurance (Australia) Limited

[2022] NSWPIC 434

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Bao v QBE Insurance (Australia) Limited [2022] NSWPIC 434

CLAIMANT:

Ming Gang Bao

INSURER:

QBE Insurance (Australia) Limited

MEMBER:

Anthony Scarcella

DATE OF DECISION:

3 August 2022

CATCHWORDS:

MOTOR ACCIDENTS - Assessment of a claim for damages under Division 7.6 of the Motor Accident Injuries Act2017; non-economic loss, past and future loss of earnings assessed; claimant’s credit in issue; Morvatjou v Mordadkhani; Medlin v State Government Insurance Commission; Husher v Husher; Graham v Baker; Kallouf v Middis; Penrith City Council v Parks considered and applied; Held — claimant’s damages are to be reduced by 30% on account of his contributory negligence.

DETERMINATIONS MADE:

In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is:

1.     On the issue of contributory negligence, the claimant’s damages are to be reduced by 30% on account of the claimant’s contributory negligence.

2.     The amount of damages for the claim is $224,000.

3.     The amount of the claimant’s costs in the matter is $39,410.83 inclusive of GST.

STATEMENT OF REASONS

BACKGROUND

1. This dispute relates to an application for an assessment of a claim for damages (the Application) under section 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 4 May 2018. The Application was lodged with the Personal Injury Commission (the Commission) on 28 April 2021.

2. The claimant, Mr Ming Gang Bao, is a 58 year old man, who was involved in a motor accident on 4 May 2018 (the motor accident) in which he suffered injuries.

3. On 2 April 2020, Mr Bao made an application for damages under common law for the personal injuries he sustained in the motor accident against QBE Insurance (Australia) Limited (QBE), being the compulsory third-party insurer of the vehicle at fault.[1]

   [1] Bao’s documents at pages 20-22.

4. On 12 November 2020, QBE admitted liability, including an admission of breach of duty of care and alleged 30% contributory negligence on the part of Mr Bao.[2]

   [2] Bao’s documents at pages 30-32.

5. At the teleconference on 24 January 2022, Mr Bao advised that he accepted that a reduction of his damages on account of contributory negligence in the sum of 30% was appropriate. The matter was set down for an audio-visual assessment conference on 11 April 2022. Ms Elizabeth Welsh of counsel appeared for Mr Bao, instructed by Mr Guy Tse, solicitor. Mr Brendan Jones of counsel appeared for QBE, instructed by Mr Timothy Ceballos, solicitor.

6. The parties agreed that the following issues were required to be determined by me:

   (a)    the nature and extent of Mr Bao’s injuries;

   (b)    the quantum of Mr Bao’s damages for non-economic loss;

   (c)    the quantum of Mr Bao’s damages for past loss of earnings or past loss of earning capacity, and

   (d)    the quantum of Mr Bao’s damages for future loss of earnings or future loss of earning capacity.

7. QBE requested that I issue my decision in draft.

8. The parties agreed that:

   (a)    the deduction to be made under section 3.40(1)(b) of the MAI Act amounts to $45,240.92;

   (b)    payments made by QBE under section 4.5(1)(d) of the MAI Act amount to $0, and

   (c)    Mr Bao’s costs and disbursements set out in his amended schedule of costs and disbursements dated 1 April 2022 lodged with the Commission and identified as “AD9” were agreed by QBE.

EVIDENCE

Documentary evidence

1. At the commencement of the assessment conference, a preliminary issue arose which could not be resolved and required my determination. The issue was in respect of the documents in Mr Bao’s final tender bundle of supporting documents lodged with the Commission on 30 March 2022 and identified as “AD5” from pages 136-158 inclusive. The documents were in a language other than English and in breach of rule 18 of the Personal Injury Commission Rules 2021 and Procedural Direction PIC 3 [10], were not accompanied by an English translation certified as an accurate translation by a translator. In fact, the documents were unaccompanied by any translation.

2. The preliminary issue was determined by me after hearing the oral submissions of the parties. I determined that the documents from pages 136-158 inclusive of Mr Bao’s final tender bundle of supporting documents would not be considered in making this determination.

3. The oral submissions and my reasons for the determination in relation to the preliminary issue were sound recorded and the sound recording is available to the parties.

4. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    Mr Bao’s Application dated 28 April 2021 and the final tender bundle of supporting documents lodged with the Commission on 30 March 2022 and identified as “AD5” (Bao’s documents), with the exception of the documents from pages 136-158 inclusive;

   (b)    Mr Bao’s amended schedule of costs and disbursements dated
   1 April 2022 lodged with the Commission and identified as “AD9”;

   (c)    QBE’s reply to the Application dated 19 May 2021 and supporting documents lodged with the Commission and identified as “R1” (QBE’s documents), and

   (d)    QBE’s further submissions and schedule of damages dated 10 March 2022 lodged with the Commission and identified as “AD3”.

Oral evidence

1. Oral evidence was adduced from Mr Bao at the audio-visual assessment conference.

SUBMISSIONS

1. Mr Bao’s legal representatives provided written submissions on the substantive issues dated 26 April 2021 and 25 February 2022, supplemented by brief oral submissions at the assessment conference.

2. QBE’s legal representatives provided written submissions on the substantive issues dated 19 May 2021 and 10 March 2022, supplemented by brief oral submissions at the assessment conference.

3. I will refer to the parties’ submissions under each relevant issue for determination set out below.

THE NATURE AND EXTENT OF MR MING GANG BAO’S INJURIES

Mr Ming Gang Bao’s evidence

1. In evidence, there is Mr Bao’s application for personal injury benefits dated
   

   [3] Bao’s documents at pages 13-18.

   2 July 2018.[3] I will now refer to the relevant parts of the application for personal injury benefits.

2. In the application for personal injury benefits, Mr Bao provided details of the motor accident that were consistent with the evidence. In respect of his employment details, Mr Bao indicated that he had not been away from work as a result of the motor accident. The spaces for answers to questions relating to his employment status, usual occupation, earnings and Centrelink benefits were left blank. Employer contact details were also left blank.

3. In evidence, there is a signed statement by Mr Bao dated 15 April 2021 in respect of the motor accident. At the commencement of his oral evidence at the assessment conference, Mr Bao confirmed that the contents of his written statement were accurate. I will now refer to the relevant parts of that statement and his oral evidence.

4. Mr Bao stated that he was born in Shanghai, China and is currently 58 years of age. He lives with his 27 year old daughter, Eva. Mr Bao’s wife lives in Shanghai and works at Shanghai University.

5. Mr Bao stated that, in the early 1980s, he had studied sociology at Shanghai University and then took up a full-time academic position as a lecturer in its Sociology Department, where he worked from about 1986 until about 2006. Mr Bao’s wife also lectured at Shanghai University. In 2006, he migrated to Australia with Eva, who was then 12 years of age. He made the decision to move to Australia in order to provide Eva with a better life. Eva’s mother remained in China and she would visit Australia during school holidays. He and his wife never formally divorced.

6. Mr Bao stated that, by the time of the motor accident, Eva had just completed her studies and had become a qualified nurse.

7. Mr Bao stated that, at the time of the motor accident, he undertook casual work as a tutor in the Mandarin language for high school students. He worked between 10 hours per week up to a maximum of about 20 hours per week at various hourly rates from $20 per hour to $30 per hour. He had also been receiving a Newstart benefit from Centrelink from about 2013. Another source of income was as an active travel blogger for a magazine in China, where he had one or two articles published per week and received around 1,000 RMB per month.

8. Mr Bao stated that, for several years prior to the motor accident, he had been returning to China for several weeks at a time, once or twice per year, for the purpose of seeing family and also building up connections with schools in China in the hope of developing an association which might lead to business and work opportunities for him.

9. Mr Bao stated that, prior to the motor accident, it was his intention to move back into full-time work either in Australia or China. He had the opportunity to return to academic work at university in China. He had developed an interest in photography and had become very proficient as a photographer and felt that he had potential to use his photographic skills in his travel blogging work. There was also a lot of potential for work as a teacher or tutor.

10. Mr Bao stated that his wife continued to work at Shanghai University and that, if he were to return to that sort of work, he would be able to earn about AU$1,000 per week or 20,000 RMB per month.

11. Mr Bao described the motor accident in the following terms:

    “16.   The accident on 4 May 2018 occurred just as I had returned to Australia from Shanghai. I was intending to catch the bus from the airport to my home. I had seen the bus which I was intending to catch and I thought the bus was going to leave. I decided to leave my luggage at the kerb and walk across the road to speak to the bus driver. I could not walk all the way to the bus because there was a fence dividing the area where the bus at part from the airport terminal.

    17.    After speaking to the bus driver I turned and commenced walking back toward the terminal to collect my luggage. After I had taken a few steps I was struck by a mini bus. The bus was travelling quickly and there was nothing I could do to avoid the accident. I was struck on my left side and thrown onto the roadway. I held out my right wrist to protect myself when I fell and I felt immediate pain in my right wrist when it hit the roadway.

    18.    My right hand and wrist became swollen and I had a graze on my hand. I was taken by ambulance to St George Hospital where a scan was done and I was told that I had fractured something in my wrist. My wrist was placed in a splint and I was referred to the Sydney Hospital Hand Clinic.”[4]

    [4] Bao's documents at pages 6-7 at [16]-[18].

12. Mr Bao stated that he is right hand dominant and that the injury to his right wrist has been disabling ever since the motor accident. He experiences great difficulty doing things with his right hand. His ability to type has been affected and he relies heavily on Eva for domestic help. He was unable to continue any tutoring work because of the difficulties he experienced with typing and handwriting.

13. Mr Bao stated that he developed a pain syndrome in his right wrist that added to the restriction of use, pain and disability in his right hand. He had been under the care of the Royal Prince Alfred Hospital pain clinic and had undergone nerve blocks in an attempt to manage his pain. He experienced only temporary relief from pain following the nerve blocks.

14. Mr Bao stated that his right hand is swollen and painful. The pain radiates up his right arm to his right shoulder and it is always present. The pain affects his sleep and it distresses him. He developed depression and anxiety, which has affected his mood. Consequently, the relationship with Eva has also been affected. He finds himself easily upset and he is constantly arguing with Eva. He avoids driving.

15. Mr Bao stated that he is under the care of a psychiatrist, Dr Zhen Zhang, who prescribed him antidepressants. He has experienced side-effects from the medication. He currently takes Pristiq 150mg tablets, which he finds better than the other medication he was on.

16. In Mr Bao’s oral evidence, he stated that his right hand is always very painful. He wears a splint for protection. The right hand is very often red and sweaty. The pain in the right hand is a severe stabbing pain that goes into his right arm and right shoulder. He takes Mobic, Lyrica and Pristiq every day and Mirtazapine each night. He still attends the Royal Prince Alfred Hospital pain clinic and was last there in February 2022.

17. In Mr Bao’s oral evidence, he stated that he wanted to continue tutoring but that he has been unable to do so because of the pain in his right hand. But for the injuries he sustained in the motor accident, he would have been tutoring for 10 hours each week. He also lost the opportunity, through his contacts, to go back to lecturing at his old university in China. He can no longer use a computer keyboard at all because of the build-up of fluid in his fingers.

18. In Mr Bao’s oral evidence, he stated that, as a result of the injuries he sustained in the motor accident, he feels that his routine and daily living has been interrupted. During the day he is not in good spirits. At night, he does not sleep well. It has affected the relationship with his daughter. He relies on his daughter to do the house work and that causes friction between them. He is unable to cook much. His daughter does the house work on her day off because he cannot do much.

19. In Mr Bao’s oral evidence, he stated that his mood is not good. He was diagnosed with depression and found that the prescribed medication had side-effects, in that, his body broke out into a rash.

20. In Mr Bao’s oral evidence, he stated that he no longer takes photographs because he is unable to lift the camera. He feels like he has lost one of his hobbies.

21. On questioning by QBE’s counsel, Mr Bao initially denied receiving chiropractic treatment to his lower back in 2009. He subsequently agreed that he had consulted Dr Robert Luo for such treatment but that “it was a long time ago” and that the treatment lasted for two to three years. When challenged that the chiropractic treatment went for longer than two to three years, Mr Bao explained that it was just like massage to the legs; it was not like treatment. He later conceded that he had been receiving such treatment for his lower back since 2009 to date, except for a period where there was a gap of about two years. He explained that, as he is ageing, he often feels periods of aggravating pain in his lower back. He underwent the Medicare permitted five sessions massage to his lower back in 2021. He has forgotten the date of his last attendance for massage in 2021. He has not used up his five sessions of massage to his lower back in 2022.

22. On questioning by QBE’s counsel, Mr Bao initially denied experiencing pain in his neck prior to the motor accident. He subsequently conceded that it was possible that he had complained of neck pain referred into both arms to his general practitioner, Dr Daisy Dai, on 27 October 2017 and that she had referred him for an MRI scan of his neck on 1 November 2017. He denied continuing to have pain in his neck thereafter until the motor accident because it was more like discomfort.

23. On questioning by QBE’s counsel, Mr Bao stated that he still had pain in his right shoulder and that it comes from his right hand into his right arm and to his right shoulder. He agreed that the pain in his right shoulder stops him from typing.

24. On questioning by QBE’s counsel, Mr Bao stated that he struggles to do various things around the home. When it was put to him how he managed when his daughter was away for a period of time, he responded that he could do the “basic things” and that he got some friends to assist him with shopping and other “things”.

25. On questioning by QBE’s counsel, Mr Bao stated that he recalled completing some forms in respect of the motor accident with the assistance of his daughter. He was shown the application for personal injury benefits dated 2 July 2018 and identified his signature on pages 2 and 6 of the document. He stated that his daughter explained to him what was in the form and he was satisfied that it was correct before he signed the form. He subsequently stated that the form was signed by his daughter because his right hand was in a sling at that time. In respect of his answer on the form that he had not been away from work as a result of the motor accident, he explained that in Chinese culture there is a different kind of thinking. If you are a permanent employee, then you are working; if not, then you are not working.

26. On questioning by QBE’s counsel, Mr Bao stated that he recalled consulting Ms Ying Huang, psychologist, in respect of his motor accident related injuries. He agreed that he had told Ms Huang the truth about how he was coping after the motor accident and how he was managing at home. He could not recall whether Ms Huang had asked him questions about work. After Mr Bao’s attention had been drawn to Ms Huang’s allied health recovery request dated 19 February 2020,[5] he then recalled telling Ms Huang that he was not working at the time of the consultation. When Mr Bao’s attention was drawn to Ms Huang having recorded that he was not working prior to the motor accident, he explained again that if you are a permanent employee, then you are working; if not, then you are not working. Mr Bao agreed that travel, photography and blogging were his hobbies.

    [5] Bao's documents at pages 387-390.

27. On questioning by QBE’s counsel, Mr Bao’s attention was drawn to the entry by Dr Dai in the Ashfield General Practice clinical records on 1 November 2019 wherein, amongst other things, it was noted that he had retired a few years ago, having been a university professor.[6] Mr Bao denied that he had retired prior to the motor accident. He again explained that it was just a cultural/communication issue. The Chinese think when formal employment has finished, then you have retired but they can still work for themselves, if they want.

    [6] Bao's documents at page 251.

28. On questioning by QBE’s counsel, Mr Bao stated that his tutoring involved teaching Mandarin to primary and junior high school students of a Chinese background. He taught them fairly rudimentary Mandarin on a one-on-one basis for one or two hours after school and on weekends. He agreed that it primarily involved him sitting down and talking to the student.

29. On questioning by QBE’s counsel, Mr Bao confirmed that, at the time of the motor accident, he was in receipt of Centrelink benefits. Mr Bao stated that when he travelled overseas, he would inform Centrelink and his payments would be suspended and would then be reinstated when he returned to Australia. He would make a telephone call to Centrelink through a Chinese interpreter to advise them that he was about to travel overseas.

30. On questioning by QBE’s counsel, Mr Bao conceded that he did not inform Centrelink about his tutoring income. He thought that he had lodged income tax returns in Australia but that “maybe” he had not disclosed his tutoring income in the tax returns because “it was not so much money”. The tutoring fees were paid to him in cash.

31. On questioning by QBE’s counsel, Mr Bao stated that he had not applied for tutoring work or other work after the motor accident. After the motor accident, he continued to receive Centrelink benefits. About 18 months after the motor accident, he commenced to receive payments from QBE. Centrelink knew about the QBE payments because his Centrelink payments were adjusted. When it was put to Mr Bao that what he was paid in Centrelink and QBE payments was more than he had ever earned on a weekly or fortnightly basis in Australia before the motor accident, his answer was non-responsive, in that, he stated that he did not look for work because his hand is disabled.

The evidence of the treatment providers

1. On 4 May 2018, Dr Alex Tzannes, the senior medical officer at the emergency department of the St George Hospital reported to Dr Dai that Mr Bao had been struck by a motor vehicle at low speed whilst crossing the road at the airport that morning, falling onto his right outstretched hand. Dr Tzannes reported that Mr Bao’s right hand was swollen and generally tender with a tiny graze in the middle of his palm. A CT scan of the right wrist confirmed a minimally displaced fracture of the hook of the hamate. The right wrist was immobilised in a point of pressure (POP) splint and Mr Bao was referred to the Sydney Hospital Hand Clinic for follow-up.

2. On 7 May 2018, Mr Bao consulted Dr Dai, who recorded in the Ashfield General Practice clinical records that Mr Bao had been hit by a car at the airport and fractured his right hamate.[7] Dr Dai noted that Mr Bao was in a POP splint and being treated at Sydney Hospital.

   [7] QBE's documents at page 88.

3. On 25 May 2018, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain.[8]

   [8] QBE's documents at page 87.

4. On 8 June 2018, Mr Bao consulted Dr Dai in respect of his right wrist fracture.[9] Dr Dai noted that he was being reviewed at the Sydney Hospital Hand Clinic; that he was still in a POP splint; and that there was minimal pain in the right wrist. Dr Dai completed the medical certificate that was to accompany Mr Bao’s application for personal injury benefits.[10]

   [9] QBE's documents at pages 86-87.

   [10] Bao's documents at page 19.

5. On 13 July 2018, Mr Bao consulted Dr Dai complaining of finger discomfort and dorsal hand swelling.[11]

   [11] QBE's documents at page 85.

6. On 27 July 2018, Mr Bao consulted Dr Dai complaining of right hand and finger swelling. Dr Dai noted that Mr Bao was to consult an orthopaedic surgeon in
   

   [12] QBE's documents at pages 84-85.

   August 2018 and was to undergo an X-ray.[12]

7. On 10 August 2018, Mr Bao consulted Dr Dai complaining of right hand swelling. Dr Dai recommended hand movement and finger exercises.[13]

   [13] QBE's documents at page 84.

8. On 24 August 2018, Mr Bao consulted Dr Dai in respect of his right hand fracture. Dr Dai noted that he had been reviewed at Sydney Hospital Hand Clinic and awaited an orthopaedic review and pain management at Royal Prince Alfred Hospital. She prescribed him Lyrica 75mg capsules.[14]

   [14] QBE's documents at pages 83-84.

9. On 3 September 2018, Mr Bao consulted Dr Dai, who noted that he had been reviewed at the Royal Prince Alfred Hospital orthopaedic clinic and that a stellate ganglion block had been booked for 19 September 2018. He had been prescribed Endep 10mg tablets and was advised to continue on Lyrica.[15]

   [15] QBE's documents at pages 82-83.

10. On 21 September 2018, Mr Bao consulted Dr Dai complaining of ongoing right wrist and hand pain. Dr Dai noted that Mr Bao had undergone the nerve block and now had minimal pain and experienced improvement in control. Dr Dai prescribed him Lyrica 75mg capsules and recommended physiotherapy.[16]

    [16] QBE's documents at pages 81-82.

11. On 5 October 2018, Mr Bao consulted Dr Dai, who noted that Mr Bao had undergone hand physiotherapy and that his pain was improving.[17]

    [17] QBE's documents at page 81.

12. On 12 October 2018, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain.[18]

    [18] QBE's documents at pages 80-81.

13. On 15 October 2018, Mr Bao consulted Dr Dai, who noted that he had been reviewed in the Royal Prince Alfred Hospital orthopaedic clinic and that further surgery was queried. Dr Dai noted that Mr Bao was wearing a right wrist support and prescribed him Endep 10mg tablets to be taken nightly.[19]

    [19] QBE's documents at page 80.

14. On 23 November 2018, Mr Bao consulted Dr Dai, who noted that he had been undergoing physiotherapy for pain control and hand function. She also noted that his right hand was in a support for his wrist and middle finger.[20]

    [20] QBE's documents at page 79.

15. On 14 December 2018, Mr Bao consulted Dr Dai, who noted that he had been undergoing physiotherapy for pain control and hand function. She also noted that his right hand was in a support for his wrist and middle finger.[21]

    [21] QBE's documents at page 78.

16. On 11 January 2019, Mr Bao consulted Dr Dai complaining of ongoing right hand swelling and finger tightness when performing exercises. Dr Dai noted that he was undergoing physiotherapy and required Lyrica and Mobic for pain control. Mr Bao complained of mood swings and feeling depressed because of his injury. Dr Dai prescribed him Lyrica 75mg capsules and Mobic 15mg tablets daily.[22]

    [22] QBE's documents at pages 76-77.

17. On 15 March 2019, Mr Bao consulted Dr Dai, who noted that he continued to undergo treatment for right hand pain; was undergoing physiotherapy; was undergoing acupuncture with some improvement; and on medication for pain control. [23]

    [23] QBE's documents at page 73.

18. On 1 April 2019, Mr Bao consulted Dr Dai complaining of worsening right wrist pain since the removal of the POP splint. Dr Dai prescribed him Panadeine Forte 500mg/30mg tablets.[24]

    [24] QBE's documents at pages 72-73.

19. On 12 April 2019, Mr Bao consulted Dr Dai complaining of ongoing moderate to severe right wrist pain. Dr Dai noted that he was using a thumb spica splint and booked him in for a right wrist ultrasound-guided steroid injection.[25]

    [25] QBE's documents at page 71.

20. On 15 April 2019, Mr Pak Yin Chu, physiotherapist, reported to Dr Dai that Mr Bao was suffering from a non-healed fracture of the right hamate and complex regional pain syndrome affecting his right hand and wrist. Mr Chu opined that Mr Bao had also developed De Quervain’s tenosynovitis secondary to his primary injury. Mr Chu placed Mr Bao’s right wrist in a thumb spica splint to rest the affected tendons in the first dorsal compartment. He provided Mr Bao with gentle strengthening exercises to retrain the injured tendons and recommended ongoing physiotherapy.[26]

    [26] Bao's documents at page 87.

21. On 16 April 2019, Mr Bao underwent an ultrasound guided right wrist injection of corticosteroid by Dr Albert Cheung of Ashfield Radiology.[27]

    [27] Bao’s documents at page 109.

22. On 13 May 2019, Mr Bao consulted Dr Dai complaining of ongoing right forearm discomfort on movement. Dr Dai noted that Mr Bao was to continue with physiotherapy and analgesia and that his hand function was improving.[28]

    [28] QBE's documents at page 69.

23. On 6 June 2019, Mr Chu confirmed his previous diagnosis and noted that Mr Bao’s CRPS and De Quervain’s tenosynovitis conditions had improved significantly. However, Mr Bao had developed pain/paraesthesia over his right volar wrist. Examination demonstrated tight neck muscles and a tight pronator teres muscle which could be compressing on the median nerve giving him symptoms. Mr Chu provided Mr Bao with a right wrist night splint to rest the median nerve and provided him with gliding exercises and stretching exercises to stretch his pronator teres muscle and median nerve. Mr Chu recommended ongoing physiotherapy.[29]

    [29] Bao's documents at page 88.

24. On 7 June 2019, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain. Dr Dai noted the non-union of the right hamate fracture and that Mr Bao was consulting a physiotherapist twice weekly. She referred him back to the pain clinic at Royal Prince Alfred Hospital[30] and prescribed him Lyrica 75mg capsules.[31]

    [30] Bao's documents at pages 89-90.

    [31] QBE's documents at page 67.

25. On 21 June 2019, Mr Bao consulted Dr Dai complaining of ongoing moderate pain in the right wrist. Dr Dai noted that he was undergoing physiotherapy. On examination, Dr Dai observed mild right wrist tenderness.[32]

    [32] QBE's documents at page 67.

26. On 8 July 2019, Mr Bao consulted Dr Dai complaining of ongoing moderate right wrist pain. Dr Dai noted that he was undergoing physiotherapy twice weekly. On examination, she observed mild right wrist tenderness and that he was wearing a wrist support.[33]

    [33] QBE's documents at pages 65-66.

27. On 22 July 2019, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain and swelling. On examination, Dr Dai observed mild right wrist tenderness and that he was wearing a wrist support. Dr Dai recommended another stellate ganglion block because it had provided him with some pain relief 10 months ago. She recommended he continue with physiotherapy and counselled him in respect of ongoing pain control.[34]

    [34] QBE's documents at page 65.

28. On 26 July 2017, Mr Bao underwent a right stellate ganglion block at Royal Prince Alfred Hospital.[35]

    [35] Bao's documents at page 91.

29. On 9 August 2019, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain on movement. Dr Dai noted that he was undergoing physiotherapy twice weekly. On examination, she observed mild right wrist tenderness and that he was wearing a wrist support.[36]

    [36] QBE's documents at pages 63-64.

30. On 19 August 2019, Mr Bao consulted Dr Dai, who noted that Mr Bao’s ongoing right wrist pain was chronic; that he was on Lyrica and Mobic; that he was consulting a physiotherapist; and was wearing a wrist support. On examination, Dr Dai observed mild right wrist tenderness. She prescribed Lyrica 75mg capsules and Mobic 15mg tablets daily.[37]

    [37] QBE's documents at page 63.

31. On 22 August 2019, Dr Yi-Ching Lee, pain fellow, at the Sydney Hospital Hand Clinic reported to Dr Dai that Mr Bao was still reporting pain along the lateral aspect of the right wrist and forearm. There was no significant temperature difference between the right and left hand. Sweating was noted in the right. There was still mild mottling of the skin but swelling had improved. The range of flexion/extension had improved and was up to 80°. Dr Lee was happy with Mr Bao’s progress overall and recommended ongoing regular physiotherapy and encouraged him to use his right hand for day-to-day activities.[38]

    [38] Bao's documents at page 84.

32. On 26 August 2019, Mr Bao consulted Dr Dai for review of his right wrist pain. She advised him to cease taking Mobic tablets and to continue with Lyrica capsules and physiotherapy.[39]

    [39] QBE's documents at pages 62-63.

33. On 2 September 2019, Mr Bao consulted Dr Dai complaining of no improvement in his right wrist pain. Mr Bao complained that he was unable to use his right arm due to wrist pain and that his daily living had been affected by the pain. He also complained of mood swings due to the right wrist injury and pain. He sometimes felt unhappy and suffered from insomnia. On examination, Dr Dai observed tenderness in the right wrist with a full range of motion and flexion of 30° and extension of 150°. Dr Dai prescribed a Norspan 5mg patch.[40]

    [40] QBE's documents at pages 61-62.

34. On 20 September 2019, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain. On examination, Dr Dai observed tenderness in the right wrist with a full range of motion and flexion of 30° and extension of 150°. Dr Dai prescribed a Norspan 10mg patch and Panadeine Forte 500mg/30mg tablets.[41]

    [41] QBE's documents at page 61.

35. On 23 September 2019, Mr Bao consulted Dr Dai, who recorded a history of a non-healed fractured right hamate, complex right wrist pain syndrome, De Quervain’s tenosynovitis and chronic right wrist pain. Dr Dai also noted that Mr Bao was unable to seek a job and issued a Centrelink medical certificate.[42]

    [42] QBE's documents at pages 60-61.

36. On 24 September 2019, Dr Lee reported to Dr Dai and confirmed that Mr Bao had been diagnosed with complex regional pain syndrome of the right hand following a hamate fracture in May 2018. Dr Lee reported that Mr Bao had undergone a stellate ganglion block five days earlier with a mild improvement of his pain score and a noticeable reduction in swelling. However, he was still unable to write, cook or drive and unable to resume his private Chinese tutoring work. Dr Lee opined that Mr Bao’s CRPS was slowly improving and recommended that he continue physiotherapy and encouraged right hand movement for every day household work.[43]

    [43] Bao's documents at pages 82-83.

37. On 4 October 2019, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain. On examination, Dr Dai observed tenderness in the right wrist with a full range of motion and flexion of 30° and extension of 150°.[44]

    [44] QBE's documents at page 60.

38. On 18 October 2019, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain. On examination, Dr Dai observed tenderness in the right wrist with a full range of motion and flexion of 30° and extension of 150°. Dr Dai noted that Mr Bao was undergoing physiotherapy and taking Lyrica and using Norspan patches.[45]

    [45] QBE's documents at pages 59-60.

39. On 25 October 2019, Mr Bao consulted Dr Dai complaining of reduced right hand function, feeling unhappy, feeling useless because of the pain, suffering from insomnia and suffering a lack of motivation. Dr Dai actioned a mental health treatment plan and referred Mr Bao to Ms Huang.[46]

    [46] QBE's documents at pages 58-59.

40. On 1 November 2019, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain; depression due to the chronic pain; insomnia; and feeling useless. Dr Dai provided him with some counselling.[47]

    [47] QBE's documents at page 58.

41. On 6 November 2019, Ms Huang reported to Dr Dai that Mr Bao reported symptoms of anxious and depressed mood; insomnia; nightmares; headaches; hot flushes; agitation; anger; memory intrusions from the motor accident; fear when crossing the road without traffic lights; fear of driving; and poor short-term memory, attention and concentration. Ms Huang opined that Mr Bao had symptoms of post-traumatic stress disorder, depression and chronic pain syndrome that affected his activities of daily living and outdoor travel. She recommended ongoing psychological intervention.[48]

    [48] Bao's documents at pages 95-96.

42. On 8 November 2019, Mr Bao consulted Dr Dai complaining of chronic right wrist pain; nightmares; concerns about right arm function and pain control; difficulty focusing; impaired memory; and an inability to drive due to concerns about his arm controlling the vehicle. Dr Dai provided him with some counselling and recommended that he continue with psychological treatment.[49]

    [49] QBE's documents at page 57.

43. On 2 December 2019, Mr Bao consulted Dr Dai, who noted that he continued to have issues with chronic pain control; was on antidepressant medication; was consulting a psychologist; was consulting a physiotherapist for wrist exercise and splints; was unable to sleep; experienced nightmares; and was worried about hand function. On examination, Dr Dai observed that Mr Bao’s right wrist was in a supportive bandage. Dr Dai advised him to cease Lyrica and prescribed Temaze 10mg tablets nightly and Mobic 15mg tablets daily.[50]

    [50] QBE's documents at pages 55-56.

44. On 16 December 2019, Mr Bao consulted Dr Dai complaining of ongoing chronic pain in the right wrist with finger numbness. Dr Dai noted that Mr Bao was consulting a physiotherapist and taking antidepressant medication to assist with pain control and mood. Dr Dai recommended that he continue with psychological treatment.[51]

    [51] QBE's documents at pages 54-55.

45. On 18 December 2019, Ms Huang reported to Dr Dai that Mr Bao had attended for follow-up consultations since the initial assessment on 20 November 2019. Ms Huang reported that she had provided Mr Bao with adjustment strategies but that he had not experienced significant improvement. He remained preoccupied with pain in the right hand and history distress level remained high. She discussed the option of additional psychiatric support in a team approach to further manage his symptoms. She recommended that Mr Bao’s antidepressant medications be reviewed and consideration be given to a psychiatric referral.[52]

    [52] Bao's documents at page 98.

46. On 10 January 2020, Mr Bao consulted Dr Dai complaining of ongoing pain in the right wrist and right arm and a depressed mood. Dr Dai noted that Mr Bao was consulting a psychologist; was on antidepressants; suffered from insomnia; and suffered a lack of motivation for his hobbies. Dr Dai referred him to Dr Zhang.[53]

    [53] QBE's documents at pages 53-54 and Bao’s documents at pages 101-102.

47. On 21 January 2020, Dr Zhang reported to Dr Dai that Mr Bao met the DSM-V diagnostic criteria for post-traumatic stress disorder and major depression. Dr Zhang noted that Mr Bao also had chronic right forearm and hand pain. Dr Zhang took a history of symptoms that was consistent with the complaints made to Ms Huang. Dr Zhang recommended that Mr Bao continue psychotherapy with his psychologist, focusing on post-traumatic stress disorder and chronic pain. He recommended further psychiatric follow-ups and that the dosage of Duloxetine be increased from 60mg to 90mg daily.[54]

    [54] Bao’s documents at pages 103-104.

48. On 30 January 2020, Dr Lee, now of Royal Prince Alfred Hospital Pain Management Centre, reported to Dr Dai that Mr Bao was making minimal progress. He reported worsening anxiety, fear avoidance and poor mood. On examination, Dr Lee observed right generalised tenderness up to the mid-forearm; allodynia to light touch; 30% reduction in flexion/extension of the right wrist; and increased temperature and sweating. Dr Lee recommended that the mainstay of treatment should be to gradually increase the use of the right hand and engage with enjoyable activities, such as, photography again. Dr Lee scheduled Mr Bao for a repeat ganglion block in May 2020.[55]

    [55] Bao's documents at pages 85-86.

49. On 31 January 2020, Mr Bao consulted Dr Dai complaining of ongoing right wrist pain. Dr Dai referred Mr Bao back to the pain clinic at Royal Prince Alfred Hospital and prescribed Lyrica 75mg capsules daily.[56]

    [56] QBE's documents at pages 52-53.

50. On 3 February 2020, Mr Bao consulted Dr Dai and discussed the consultation with Dr Zhang, who recommended, at least, a further six psychiatric sessions and antidepressant medication.[57]

    [57] QBE's documents at page 52.

51. The last entry in the Ashfield General Practice clinical records in evidence was on 3 February 2020.

52. On 19 February 2020, Ms Huang reported to Dr Dai that Mr Bao had engaged with his intervention and reported benefit in attending psychotherapy sessions to help him process thoughts and feelings in dealing with his right hand pain and rehabilitation. She noted that he appeared to be struggling with the concept of the insurer’s rehabilitation model and needed ongoing psycho education to help him engage with functional improvements of his right hand and for pain management. Mr Bao indicated that the severe elevation in his depression, anxiety and stress could be attributed to his frustration at not seeing progress in terms of pain reduction in his right hand and his anxiety about the prospect of future surgery. He requested further psychological support. Ms Huang recommended combined psychological and psychiatric intervention to address his post-traumatic stress disorder symptoms and secondary symptoms of depression and anxiety.[58]

    [58] Bao's documents at pages 99-100.

53. On 24 July 2020, Dr Zhang reported to Dr Dai that Mr Bao reported ongoing hand pain and an unstable mood. He did not sleep well and experienced night sweats and recurrent nightmares. He was irritable. Dr Zhang noted that Mr Bao takes Cymbalta 60mg daily. Dr Zhang opined that Mr Bao continued to have symptoms of post-traumatic stress disorder and depression. He recommended the continuation of psychotherapy and psychiatric follow-ups.[59]

    [59] Bao’s documents at page 105.

54. On 19 March 2021, Mr Bao underwent a right stellate ganglion block and right wrist De Quervain’s tenosynovitis steroid injection at Royal Prince Alfred Hospital.[60]

    [60] Bao's documents at pages 92-93.

55. On 16 April 2021, Dr Zhang reported to Dr Dai that Mr Bao had been feeling better but complained of dryness in the mouth, urinary frequency, compulsive hand washing, talking to himself, sweatiness, dreams and low mood. Dr Zhang opined that Mr Bao continued to suffer from symptoms of anxiety and depression. He advised Mr Bao to increase the dosage of Pristiq to 150mg daily and continue psychotherapy with his psychologist. He also recommended a further six psychiatric follow-ups.[61]

    [61] Bao’s documents at page 106.

1. On 28 May 2021, Dr Zhang reported to Dr Dai that Mr Bao complained about night sweats, skin issues, dryness in the mouth and feelings of lethargy. He noted that Mr Bao also experienced difficulty sleeping. Dr Zhang opined that there were remaining post-traumatic stress disorder symptoms. He noted that increasing the dosage of Pristiq to 150mg daily made no difference. He recommended the dosage be increased to 200mg daily and that Mr Bao continue psychotherapy with his psychologist.[62]

The medico-legal evidence

[62] Bao's documents at page 107.

Associate Professor Graham Gumley

1. On 28 September 2020, Mr Bao consulted Associate Professor Graham Gumley, hand surgeon, at the request of his lawyers. In evidence, there is a report by Associate Professor Gumley dated 28 September 2020.[63] I will now refer to the relevant parts of that report.

   [63] Bao's documents at pages 32-38.

2. Associate Professor Gumley took a history that, in the main, was consistent with the preponderance of the evidence.

3. Associate Professor Gumley recorded Mr Bao’s present symptoms in respect of his right hand as ongoing pain; limited function with marked dysaesthesia, particularly along the ulnar border of the forearm and into the little, ring and middle fingers; a feeling of numbness in the right hand; increased sweating of the hand; a recurrence of pain around the radial aspect of the right wrist; ongoing nightmares; and stress crossing the road.

4. In respect of the nature and extent of Mr Bao’s motor accident related injuries, Associate Professor Gumley opined that Mr Bao presented with features that were consistent with an impact injury to the right wrist that, initially, had involved, at least, a fracture of the hook of the hamate. Additionally, there appeared to be associated complex regional pain syndrome features and a reported post-traumatic stress disorder.

5. In respect of the nature and extent of Mr Bao’s continuing disabilities arising from the motor accident related injuries, Associate Professor Gumley opined that it was not possible for him to conclude that Mr Bao was at the point of maximum medical improvement, nor to determine his full diagnosis as to the impact of the injury on the documentation provided. Nevertheless, he observed that Mr Bao had very limited function of his right upper limb at the hand, wrist and forearm levels.

6. In respect of prognosis, Associate Professor Gumley opined that Mr Bao’s hand function was tied to the prognosis of his complex regional pain syndrome and post-traumatic stress disorder and would require an opinion from specialists whose practice included the management of such conditions.

7. Associate Professor Gumley opined that Mr Bao did not have a current capacity to work with his right hand and right arm.

8. On 12 February 2021, Associate Professor Gumley provided a supplementary report at the request of Mr Bao’s lawyers. In evidence, there is a report by Associate Professor Gumley dated 12 February 2021.[64] I will now refer to the relevant parts of that report.

   [64] Bao's documents at pages 39-42.

9. Associate Professor Gumley acknowledged receipt of further records provided by Mr Bao’s lawyers and noted the diagnosis of a fracture to the hook of the hamate in the right wrist with subsequent complex regional pain syndrome, leaving him with restricted ranges of motion, impaired upper limb function and pain.

10. Associate Professor Gumley assessed Mr Bao’s whole person impairment at 14% based on a measured range of motion. However, he observed that to complete Mr Bao’s evaluation, additional adjustment may be required following a review by a pain management specialist of his complex regional pain syndrome components, which could then be combined utilising the appropriate table to determine his whole person impairment.

Dr Glen Smith

1. On 7 April 2021, Mr Bao consulted Dr Glen Smith, consultant clinical and forensic psychiatrist, via telehealth video conference at the request of his lawyers. In evidence, there are two reports by Dr Smith dated 8 April 2021.[65] I will now refer to the relevant parts of those reports.

   [65] Bao's documents at pages 43-58.

2. Dr Smith took a detailed history of injury and subsequent medical treatment that, in the main, was consistent with the preponderance of the evidence. In short, Mr Bao provided a history of suddenly being hit by a minibus at speed on 4 May 2018 at Sydney airport and described feeling fear prior to the impact. He suffered a right wrist fracture. He described persistent pain and limitation in functioning, anxiety, depressed mood, sleep disturbance, nightmares and recurrent, intrusive distressing memories of the accident, reduced interest and enjoyment of activities and feelings of irritability. He had received psychological therapy and psychiatric treatment including multiple antidepressant medications but symptoms persisted.

3. Dr Smith opined that Mr Bao presented with symptoms consistent with the diagnoses of persistent depressive disorder, with anxious distress, with persistent major depressive episode and post-traumatic stress disorder. Dr Smith causally related Mr Bao’s symptoms and his diagnoses to the motor accident.

4. In respect of prognosis, Dr Smith opined that it appeared poor because Mr Bao had received psychological therapy and psychiatric treatment, including three different antidepressant medications but his symptoms had persisted.

5. Dr Smith noted that Mr Bao had not worked or studied since the motor accident and that he presented as unfit for employment due to his anxiety and depressive symptoms, difficulties thinking, difficulties concentrating and reduced motivation for activities.

6. In the shorter of his two reports, Dr Smith assessed Mr Bao’s whole person impairment in respect of his motor accident related psychological conditions at 24%.

Dr Chris Rikard-Bell

1. On 11 March 2021, Mr Bao consulted Dr Chris Rikard-Bell, consultant psychiatrist, at the request of QBE’s lawyers. In evidence, there are two reports by Dr Rikard-Bell dated 20 April 2021.[66] I will now refer to the relevant parts of those reports.

   [66] QBE's documents at pages 114-130.

2. Dr Rikard-Bell described Mr Bao’s stated pre-accident functioning as follows:

   “Prior to the accident Mr Bao said that he was working as a blogger and would sell photographs to magazines in China which would attract business. He had gone to Shanghai to hopefully open a business; however, this was thwarted due to the motor vehicle accident. Mr Bao was a tutor in Chinese language, although it was unclear exactly what the tutoring involved, and the number of hours and students varied enormously. I was unable to get a clear picture of whether there were any regular work hours or what the pre-accident employment entailed.”[67]

   [67] QBE's documents at page 119.

3. Dr Rikard-Bell reported that Mr Bao visited China each year and that his last visit was in 2018 when he spent three weeks in China exploring business opportunities, wanting to open a joint tutoring school.

4. Dr Rikard-Bell reported that Mr Bao experienced recurrent lower back pain as noted in his general practitioner’s notes on 17 March 2009, 29 August 2014 and
   6 October 2016. On 27 October 2017, cervical neck pain was noted. Dr Rikard-Bell concluded that there was a history suggesting a predisposition to pain, particularly back pain. Mr Bao acknowledged a history of asthma.

5. Dr Rikard-Bell opined that Mr Bao developed a chronic pain disorder or somatic symptom disorder following an injury to his right hamate bone. Due to the chronic pain, Mr Bao developed an adjustment disorder with secondary depression. Dr Rikard-Bell did not find evidence to suggest that there was a post-traumatic stress disorder.

6. Dr Rikard-Bell found Mr Bao’s presentation to be consistent with the history provided. He opined that the relationship between the chronic pain syndrome and subsequent psychiatric injuries and disabilities were causally related to the motor accident.

7. Dr Rikard-Bell opined that the effect on Mr Bao’s daily life was largely as a result of the chronic pain and the fearfulness of using his right hand.

8. Dr Rikard-Bell opined that the psychiatric injury had caused incapacity for work as a self-employed tutor and travel blog writer. However, on the history provided, he could not determine any specifics in respect of the tutoring work and therefore, it seemed unusual that the injury to his hand would prevent him from being able to undertake any other activities. However, Mr Bao claimed that he cannot work.

9. In respect of long-term prognosis, Dr Rikard-Bell opined that it was dependent on the chronic pain symptoms. If Mr Bao continued to suffer with symptoms of chronic pain, it would likely continue to cause him the symptoms of the psychological condition and, as such, he would be unable to work.

10. Dr Rikard-Bell reported that he was unable to form a view as to whether Mr Bao displayed signs of embellishment as he claimed to be suffering from chronic pain, even though the injury appeared to be mild and the hamate fracture had healed.

11. In the shorter of his two reports, Dr Rikard-Bell assessed Mr Bao’s whole person impairment in respect of his motor accident related psychological conditions at 5%.

Dr Anthony Smith

1. On 8 April 2021, Mr Bao consulted Dr Anthony Smith, orthopaedic consultant, at the request of QBE’s lawyers. In evidence, there is a report by Dr Smith dated
   

   [68] QBE's documents at pages 131-138.

   29 April 2021.[68] I will now refer to the relevant parts of that report.

2. Dr Smith took a detailed history of injury and subsequent medical treatment that, in the main, was consistent with the preponderance of the evidence.

3. Dr Smith opined that Mr Bao had suffered a fracture to part of his right wrist, namely, the hook of the hamate, which is a fairly minor fracture. The fracture was treated appropriately and it appeared that Mr Bao developed a complex regional pain syndrome or reflexed empathetic dystrophy and that latter complication had resolved.

4. Dr Smith opined that Mr Bao was manufacturing physical signs and symptoms. Mr Bao had recovered from his right wrist fracture and the complication of complex regional pain syndrome. Dr Smith formed the view that Mr Bao was a great deal better than he made out.

5. Dr Smith opined that there could have been a significant interruption to his ability to engage in manual activity and employment activity because he is right-handed. However, there is now no ongoing impairment to right hand function and he is fit to work.

6. Dr Smith opined that Mr Bao had no assessable impairment consequent to the motor accident.

Dr Drew Dixon

1. On 7 June 2021, Mr Bao consulted Dr Drew Dixon, consultant orthopaedic surgeon, at the request of his lawyers. In evidence, there are two reports by Dr Dixon dated
   

   [69] Bao's documents at pages 59-65.

   8 June 2021.[69] I will now refer to the relevant parts of those reports.

2. Dr Dixon took a history of injury and subsequent medical treatment that, in the main, was consistent with the preponderance of the evidence.

3. Dr Dixon reported Mr Bao’s work history as one of a freelance blogger, photographer and Chinese tutor.

4. Dr Dixon reported Mr Bao had a history of asthma and osteoporosis.

5. Dr Dixon reported Mr Bao’s present symptoms to include pain and stiffness in the right wrist; pain, stiffness and swelling at the base of the right thumb in the De Quervain’s area; stiffness of the metacarpophalangeal joints of the right index and middle fingers; some proximal radiation of pain in the right forearm towards the shoulder region; mild stiffness in the right elbow; and mild stiffness in the right shoulder. Mr Bao reported difficulty sleeping on his left side; an inability to drive; an inability to function as a blogger; ongoing anxiety and depressive disorder because of his right hand and wrist condition.

6. Dr Dixon diagnosed a healed fracture of the hook of the hamate of the right wrist with post-traumatic stiffness in the right wrist; an injury to the right thumb with post-traumatic stiffness; De Quervain’s tenosynovitis at the base of the right thumb with a positive Finkelstein’s test and residual tenosynovitis with pain and tenderness; weakness of grip strength; mild stiffness in the right elbow and right shoulder; post-traumatic stress disorder requiring antidepressants and counselling; and a reliance on Lyrica for neuropathic pain. Dr Dixon opined that the above conditions were causally related to the motor accident.

7. In respect of Mr Bao’s fitness for work, Dr Dixon reported that Mr Bao had not been able to return to work as a freelance blogger because he is unable to do IT work and unable to work at pace due to the pain at the base of his right thumb and right wrist. Being right-handed, he is unable to do any sustained writing or perform clerical activities. He has been unable to work as a photographer. Dr Dixon noted that Mr Bao had difficulty concentrating due to anxiety and a depressive disorder. Dr Dixon opined that Mr Bao may be able to act as an oral Chinese tutor.

8. In the shorter of his two reports, Dr Dixon assessed Mr Bao’s whole person impairment in respect of his motor accident related physical conditions at 17%.

Medical Assessor Alan Home

1. Mr Bao was referred to Medical Assessor Alan Home for the assessment of the degree of permanent impairment and the assessment of certain treatment and care in respect of the alleged physical injuries resulting from the motor accident. The assessment took place on 11 November 2021.

2. In evidence, there is a certificate issued by Medical Assessor Home dated 16 November 2021.[70] I will now refer to the relevant parts of that certificate.

   [70] Bao's documents at pages 110-126.

3. The injury referred for assessment by Medical Assessor Home in respect of the permanent impairment dispute was the right hand injury.

4. Medical Assessor Home took a detailed history of injury and subsequent medical treatment that, in the main, was consistent with the preponderance of the evidence. He noted that Mr Bao had developed right shoulder pain in about mid-2021 and that there had been no medical imaging or treatment of the right shoulder complaint.

5. Medical Assessor Home reported that Mr Bao described symptoms of constant local pain in the right shoulder; stiffness in the right wrist; pain at the volar aspect of the right wrist; pain along the radial border of the right wrist extending to the base of the right thumb; general weakness in the right hand; an intermittent sensation of heat in the right hand; and intermittent local swelling in the right wrist. Medical Assessor Home noted that Mr Bao was right hand dominant.

6. Medical Assessor Home reported that Mr Bao was consistent in his clinical presentation.

7. Medical Assessor Home reviewed and summarised the relevant documentation provided to him.

8. Medical Assessor Home opined that Mr Bao had sustained a direct injury to his right wrist in the motor accident, namely, a fracture of the hook of the hamate and that he had developed secondary regional pain treated with multiple stellate ganglion blocks. There was a secondary De Quervain’s tenosynovitis at the right wrist treated with corticosteroid injections. Medical Assessor Home opined that the above conditions were caused by the motor accident. However, he was unable to determine that Mr Bao’s right shoulder complaint was causally related to the motor accident.

9. Medical Assessor Home concluded that, whilst there was a diagnosis of persisting right wrist and hand pain due to a regional pain complaint, the criteria for the assessment of impairment for chronic regional pain syndrome were not met at the time of his assessment of Mr Bao. He assessed Mr Bao’s whole person impairment in respect of the right hand injury at 15%.

Medical Assessor Doron Samuell

1. Mr Bao was referred to Medical Assessor Doron Samuell for the assessment of the degree of permanent impairment in respect of the alleged psychological injury resulting from the motor accident. The assessment took place on 25 November 2021.

2. In evidence, there is a certificate issued by Medical Assessor Samuell dated 10 December 2021.[71] I will now refer to the relevant parts of that certificate.

   [71] Bao's documents at pages 127-135.

3. Medical Assessor Samuell took a history of injury and subsequent medical treatment that, in the main, was consistent with the preponderance of the evidence.

4. Medical Assessor Samuell observed that there was considerable contemporaneous evidence that Mr Bao had developed psychological difficulties of significance following the motor accident. He was consistently diagnosed with a post-traumatic stress disorder and major depression as a result of the motor accident. It was also noted in the contemporaneous records that there was a decreased work capacity before the motor accident due to pre-existing spinal problems.

5. Medical Assessor Samuell opined that the motor accident was of sufficient severity to cause a post-traumatic stress disorder. Mr Bao described re-experiencing phenomena, heightened arousal, avoidance and mood disturbance and therefore, satisfied the diagnosis of post-traumatic stress disorder. Whilst others had diagnosed major depression and a persistent depressive disorder, those features were not evident at the time of his assessment of Mr Bao.

6. Medical Assessor Samuell was of the view that there were no inconsistencies in Mr Bao’s presentation.

7. Dr Samuell opined that the motor accident caused Mr Bao’s post-traumatic stress disorder.

8. Dr Samuell assessed Mr Bao’s whole person impairment in respect of his psychological injury at 8%.

Submissions

QBE’s submissions

1. In respect of the nature and extent of Mr Bao’s injuries, there were elements of exaggeration and secondary gain in his evidence, as noted by Dr Anthony Smith during the medical examination on 8 April 2021.

2. Mr Bao has deliberately overstated the effect the motor accident has had on him.

3. There were significant issues of credit if the Commission accepted that Mr Bao was engaged in paid employment at the time of the motor accident. Mr Bao failed to disclose any earnings received from personal exertion to Centrelink and to the Australian Taxation Office and did not have an ABN in order to be engaged in self-employment.

4. Mr Bao’s oral evidence was argumentative and deliberately evasive in response to a series of questions put to him about whether he was working at the time of the motor accident.

Mr Bao’s submissions

1. As a result of the motor accident, Mr Bao had sustained a significant injury to his right hand that was assessed by Medical Assessor Home at 15% whole person impairment.

2. Based on the findings of Medical Assessor Home, Mr Bao’s right hand has very little functional use. He is right-handed. He continues to suffer pain and stiffness at the base of his right thumb and the metacarpophalangeal joints of the index and middle fingers. He reports some proximal radiation of pain in the forearm towards the shoulder region with mild stiffness of the elbow and right shoulder.

3. Mr Bao’s right-hand injury affects, amongst other things, his sleep; his ability to drive; his functioning as a blogger; his work as a Chinese tutor; his photography; all of which contribute to his ongoing anxiety and depressive disorder.

4. As a result of the motor accident, Mr Bao has suffered post-traumatic stress disorder, which has been diagnosed by Dr Glen Smith, Medical Assessor Samuell and Dr Zhang.

5. Mr Bao’s appetite, sleep and mood have been significantly affected by the psychiatric conditions caused by the motor accident.

6. The preponderance of the medical evidence supported Mr Bao’s ongoing complaints of pain and restriction.

7. The injuries sustained in the motor accident have effectively removed Mr Bao’s ability to pursue his passion and career of travelling and photography and he will be unlikely to undertake any employment with a non-functional right-hand.

8. The Commission would be very cautious about making an adverse credit finding because, in Mr Bao’s oral evidence, he was dealing with an environment (the audio-visual hearing) that was difficult to traverse, even for those with experience in it, through an interpreter and dealing with documents that were not in his native language. He did his best to truthfully answer the questions he was asked. He gave answers to some questions against his interests. There were objective signs recorded in the medical evidence, namely, wrist swelling some 3.5 or so years after the motor accident.

1. In his oral evidence, Mr Bao’s presentation was fairly non-demonstrative. There was nothing to suggest he was embellishing his evidence. If anything, he tended to understate his position, which reflected well on him.

Consideration and findings

1. The onus of establishing injury falls on Mr Bao and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction.

2. I will first consider the question of the physical injuries suffered by Mr Bao in the motor accident.

3. The unchallenged evidence is that Mr Bao sustained a direct injury to his right wrist in the motor accident, namely, a fracture of the hook of the hamate.

4. Mr Bao’s secondary regional pain was diagnosed as complex regional pain syndrome by Dr Lee.

5. The diagnosis of complex regional pain syndrome received some qualified support from Associate Professor Gumley, who opined that there appeared to be associated complex regional pain syndrome features but that a review by a pain management specialist of his complex regional pain syndrome would be useful.

6. The diagnosis of complex regional pain syndrome received limited support from Dr Anthony Smith, who opined that it appeared that Mr Bao developed a complex regional pain syndrome or reflexed empathetic dystrophy but that it had resolved by the time of his consultation with Mr Bao.

7. Dr Dixon did not refer to a complex regional pain syndrome but diagnosed De Quervain’s tenosynovitis at the base of the right thumb with a positive Finkelstein’s test and residual tenosynovitis with pain and tenderness.

8. Dr Anthony Smith did not refer to De Quervain’s tenosynovitis in his report.

9. Mr Bao’s physiotherapist, Mr Chu, diagnosed a complex regional pain syndrome affecting the right hand and wrist and a secondary De Quervain’s tenosynovitis.

10. I reject the opinion of Dr Anthony Smith that Mr Bao was manufacturing physical signs and symptoms and that he had no ongoing impairment to right hand function. I reject his opinion on the basis that it was inconsistent with the preponderance of the medical evidence.

11. I prefer the more recent opinion of Medical Assessor Home that Mr Bao suffered a fracture of the hook of the right hamate in the motor accident and thereafter developed secondary regional pain and a secondary De Quervain’s tenosynovitis at the right wrist.

12. I will now consider the question of the psychological injuries suffered by Mr Bao in the motor accident.

13. Dr Zhang diagnosed post-traumatic stress disorder and depression. Dr Glen Smith diagnosed a persistent depressive disorder, with anxious distress, with persistent major depressive episode and post-traumatic stress disorder. Medical Assessor Samuell diagnosed a post-traumatic stress disorder. Dr Rikard-Bell opined that Mr Bao developed a chronic pain disorder or somatic symptom disorder following an injury to his right hamate bone and that, due to the chronic pain, Mr Bao developed an adjustment disorder with secondary depression.

14. On the evidence, I am satisfied that Mr Bao has suffered a post-traumatic stress disorder as a result of the motor accident.

15. Having considered the medical and other evidence referred to above, I find that Mr Bao suffered the following injuries in the motor accident:

    (a)    fracture of the hook of the right hamate;

    (b)    secondary regional right hand/wrist pain;

    (c)    secondary De Quervain’s tenosynovitis at the right wrist, and

    (d)    post-traumatic stress disorder.

16. In his oral evidence at the assessment conference, I found some of Mr Bao’s evidence to contain elements of exaggeration. Accordingly, I have treated his evidence in respect of the extent of his ongoing pain, symptoms, difficulties, disabilities and restrictions with some caution. I have taken into consideration that the assessment conference was conducted audio-visually and that for a significant period of time the interpreter had been participating by telephone, in what was a poor quality connection, until she was able to connect directly into the audio-visual platform.

17. I find that Mr Bao suffers the following ongoing pain, symptoms, difficulties, disabilities and restrictions as a result of the injuries he sustained in the motor accident:

    (a)    right wrist stiffness;

    (b)    pain at the volar aspect of the right wrist, especially over the ulnar aspect, which has become chronic;

    (c)    pain along the radial border of the right wrist extending to the base of the thumb, which has become chronic;

    (d)    intermittent swelling of the right wrist;

    (e)    general weakness in the right hand;

    (f)    reduced dominant right hand function;

    (g)    difficulty writing;

    (h)    difficulty using a computer keyboard;

    (i)    difficulty using a camera;

    (j)    sleep interrupted by pain;

    (k)    reliance on pain relieving medication;

    (l)    re-experiencing phenomena;

    (m)     heightened arousal;

    (n)    avoidance;

    (o)    mood disturbance;

    (p)    reduced concentration;

    (q)    lack of motivation;

    (r)    inability to focus on intellectually demanding tasks for more than short periods of time, and

    (s)    reliance on antidepressants.

DAMAGES FOR NON-ECONOMIC LOSS

The legislation and legal principles

1. Section 1.4 of the MAI Act defines non-economic loss as:

   (a)  pain and suffering;

   (b)  loss of amenities of life;

   (c)   loss of expectation of life, and

   (d)  disfigurement.

2. Section 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

3. The parties have agreed that the threshold imposed by section 4.11 of the MAI Act has been satisfied and that Mr Bao is entitled to damages for non-economic loss.

4. Section 4.13 of the MAI Act provides for the maximum amount that may be awarded for non-economic loss, such amount is adjusted annually by operation of section 4.22 of the MAI Act. The applicable maximum amount is the amount as at the date the award is made, in this case, $595,000.

5. The assessment of non-economic loss damages is conducted according to the conventional common law principles of full compensation with the only restraint being the maximum amount referred to above.[72]

   [72] Hodgson v Crane [2002] NSWCA 276; Nominal Defendant v Lane [2004] NSWCA 405 at [45]; Brown v Lewis [2006] NSWCA 87 at [20].

6. The amount of damages for non-economic loss damages must be fair and reasonable compensation for the injuries received and the disabilities caused.

Submissions

QBE’s submissions

1. The following factors need to be considered when assessing Mr Bao’s damages for non-economic loss:

   (a)  Mr Bao’s current age of 58 years and life expectancy of 27 years;

   (b)  the elements of exaggeration and secondary gain identified by Dr Anthony Smith during the medical examination on 8 April 2021;

   (c)   issues as to credit in respect of Mr Bao’s non-disclosure of earnings to Centrelink and the Australian Taxation Office, if it is accepted that he was engaged in employment at the time of the motor accident, and

   (d)  the histories contained in Mr Bao’s Centrelink file in respect of limitations in endurance due to his asthma; the exacerbation of his condition with chronic cough and wheeze; chronic lower back pain since 2009; and steroid induced osteoporosis.

2. Taking the above factors into consideration, QBE allowed $125,000 for non-economic loss.

Mr Bao’s submissions

1. Medical Assessor Homes found on examination of Mr Bao’s right hand that the range of motion in the wrists and fingers was evidently less than in the left hand.

2. Since the motor accident, Mr Bao has received, at least, three stellate ganglion blocks in respect of his right wrist and three cortisone injections in respect of his De Quervain’s tenosynovitis.

3. Mr Bao has undergone numerous sessions of physiotherapy and medicated with Lyrica and Mobic in an attempt to manage the pain in his right hand.

4. Mr Bao’s injury affects, amongst other things, his sleep, his ability to drive and his functioning as a blogger, Chinese tutor and photographer, which in turn contributes to his ongoing anxiety and depressive disorders.

5. Mr Bao has been diagnosed with post-traumatic stress disorder. Mr Bao’s appetite, sleep and mood have been significantly affected by his psychiatric injuries and he continues to experience tremendous fear when revisiting the motor accident site.

6. Prior to the motor accident, Mr Bao was a very active person and enjoyed travelling and photography, which he was keen on sharing in his travel blog. The motor accident has effectively removed his ability to pursue his passion and career and he is unlikely to undertake any employment with a non-functional right hand.

7. Mr Bao’s quality and enjoyment of life has been significantly compromised as a result of the motor accident. The sum of $300,000 for non-economic loss damages is reasonable in the circumstances.

Consideration and findings

1. In the motor accident, Mr Bao suffered the physical injuries and the resultant ongoing symptoms, disabilities, difficulties and restrictions referred to in my findings above. Further, he suffered a post-traumatic stress disorder and the resultant ongoing symptoms, disabilities, difficulties and restrictions referred to in my findings above.

2. Mr Bao has undergone the treatment for his physical and psychological conditions referred to in my overview of the medical evidence. He continues to undergo treatment. He has been and continues to take potent pain relieving medications for his physical conditions. He has been and continues to take antidepressant medication for his psychological condition.

3. The combined effect of Mr Bao’s chronic physical and psychological injuries and disabilities have affected his daily functioning, levels of activity, relationships and future plans.

4. Mr Bao was 53 years of age at the time of the motor accident and is currently 58 years of age. On the Medium Life Expectancy Tables Australia 2020, he is likely, on the balance of probabilities, to experience another 27 years of waxing and waning chronic physical and psychological symptoms and resultant loss of amenities of life.

5. I assess Mr Bao’s fair and reasonable compensation for non-economic loss damages as $250,000.

DAMAGES FOR PAST AND FUTURE LOSS OF EARNINGS OR EARNING CAPACITY

The legislation and legal principles

1. In cases such as Medlin v State Government Insurance Commission[73] (Medlin) and Husher v Husher[74] (Husher), the High Court of Australia confirmed that the fundamental questions to be determined in a case such as this are whether Mr Bao has sustained a loss or diminution in his earning capacity and if so, whether that loss or diminution will result in economic loss.

   [73] Medlin v State Government Insurance Commission [1995] HCA 5.

   [74] Husher v Husher [1999] HCA 47.

2. Section 4.5(1)(a) of the MAI Act provides that damages may be awarded for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity.

3. In calculating any economic loss into the future, I must have regard to the provisions of section 4.7 of the MAI Act.

4. Section 4.7(1) of the MAI Act provides that 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, accorded with the claimant’s most likely future circumstances but for the injury.

5. Section 4.7(2) of the MAI Act provides that 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.

6. Section 4.7(3) of the MAI Act provides that 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.

7. Section 4.9(1) of the MAI Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. Section 4.9(2) of the MAI Act prescribes a discount rate of 5%.

8. Section 4.7 of the MAI Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks (Parks)[75] is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine.

Submissions

[75] Penrith City Council v Parks [2004] NSWCA 201.

QBE’s submissions

1. Mr Bao relied on QBE’s determination of his earning capacity in the period after the second entitlement period (after week 78) and claimed a loss of $897 net per week from the date of the motor accident to date. Such calculation was based on a statutory test and the Commission is not required to consider section 3.8 of the MAI Act when assessing Mr Bao’s entitlement to past and future economic loss in this claim for damages.

2. QBE disputed that Mr Bao was engaged in paid employment at the time of the motor accident.

3. In his application for personal injury benefits, Mr Bao indicated that he had not taken any time off from work as a result of the motor accident.[76]

   [76] Bao's documents at page 17.

4. According to the entry in the Ashfield General Practice clinical records on
   

   [77] QBE's documents at page 58.

   1 November 2019, Mr Bao had “retired a few years ago … was university professor”.[77]

5. In an allied health recovery request dated 20 November 2019, Ms Huang, in her initial consultation with Mr Bao, noted that he was “not working prior to MVA”.[78]

   [78] Bao's documents at page 623.

6. In the Centrelink employment services assessment report dated 27 April 2016, it was recorded that Mr Bao last held employment over five years ago where he worked part-time in a video store until it closed down.[79]

   [79] QBE's documents at page 158.

7. Mr Bao had not provided any independent evidence to support his stated earnings as a self-employed Chinese language tutor and freelance travel blog writer at the time of the motor accident.

8. Mr Bao had not provided details of his ABN to support that he was engaged in self-employment at the time of the motor accident.

9. It is not sufficient for Mr Bao to demonstrate a diminished earning capacity. He is required to prove that the diminution of earning capacity is productive of financial loss: Graham v Baker[80] (Graham).

   [80] Graham v Baker (1961) 106 CLR 340.

10. Mr Bao’s oral evidence was argumentative and deliberately evasive in response to a series of questions put to him about whether he was working at the time of the motor accident.

11. If the Commission was to accept that Mr Bao was working at the time of the motor accident, QBE submitted that he had not disclosed any earnings from many sources whilst being in receipt of the Centrelink New Start Allowance.

12. Accordingly, QBE makes no allowance for past economic loss.

13. Mr Bao claimed the loss of $750 net per week to the retirement age of 67 years. In assessing future economic loss for the purposes of section 4.27, a claimant’s actual circumstances are to be considered. There is not to be a retreat to the statistics of average weekly earnings for claimants who have already demonstrated their degree of likely earnings: Dyldam Development Pty Ltd v Jones[81] (Dyldam).

    [81] Dyldam Development Pty Ltd v Jones [2008] NSWCA 56.

14. In Kallouf v Middis[82] (Kallouf), the principles guiding the assessment of future economic loss were set out. It was emphasised that what is involved is an assessment of the injured party’s loss or diminution of earning capacity rather than loss of earnings, provided that such loss or diminution is productive of financial loss.

    [82] Kallouf v Middis [2008] NSWCA 61 at [46]-[61].

15. Mr Bao’s most likely circumstance but for the motor accident was to remain in receipt of the Centrelink New Start Allowance.

16. There was no independent evidence to suggest that Mr Bao was engaged in self-employment at the time of the motor accident. The onus is on Mr Bao to adduce evidence to establish not only the extent to which his earning capacity had been diminished but also the financial loss that it will cause.

17. No allowance should be made for future economic loss or superannuation.

18. If the Commission were to accept that Mr Bao would have returned to some type of work at the time of the motor accident, the following factors must be considered when assessing this head of damage:

    (a)    Mr Bao had historically relied on Centrelink benefits;

    (b)    Mr Bao produced no evidence of historical earnings in the vicinity of $750 net per week from personal exertion;

    (c)    Mr Bao failed to disclose any earnings received from personal exertion to Centrelink because such earnings would have reduced his entitlements to the New Start Allowance;

    (d)    Mr Bao failed to disclose any earnings received from personal exertion to the Australian Taxation Office;

    (e)    there was no evidence that Mr Bao had an ABN to engage in self-employment;

    (f)    there was no independent evidence that Mr Bao had ever derived any income since migrating to Australia in 2006;

    (g)    Dr Rikard-Bell thought it unusual that the injury to Mr Bao’s hand would prevent him from being able to undertake any other activities;

    (h)    Dr Anthony Smith concluded that Mr Bao was manufacturing physical signs, there was no ongoing impediment to right hand function and that he had recovered from any motor accident related injuries at the time of his consultation on 8 April 2021;

    (i)    Dr Dixon opined that Mr Bao may be able to act as oral interpreter;

    (j)    there is no reason why Mr Bao could not perform tutoring work when such work, on his evidence, consisted of one-on-one conversations with students for one or two hours per lesson whilst seated, without the necessity to type;

    (k)    Mr Bao had not engaged in any further studies since leaving China and it is far-fetched and fanciful to suggest that, without updating his qualifications, he would move into any teaching role at a school or university in China;

    (l)    Mr Bao’s evidence was that, for several years during his visits to China, he had hoped but not succeeded in building up connections with schools so as to develop an association that might lead to business opportunities and working opportunities for him, and

    (m)     in respect of Mr Bao’s travel blogs, there was no independent evidence that corroborated what he was doing in this regard and further, the COVID-19 travel restrictions would have curtailed what he was doing in any event.

19. In order to recover damages at common law, Mr Bao must establish a reduction in his earning capacity and if established, that it gave rise to a loss. Even if the Commission accepts that there has been a reduction in Mr Bao’s earning capacity, on the evidence as it stands, the Commission could not be comfortably satisfied that it is productive of any economic loss.

20. Mr Bao did not disclose any income from personal exertion to Centrelink or the Australian Taxation Office. In accordance with the observations in Morvatjou v Mordadkhani[83] (Morvatjou), Mr Bao’s evidence ought to be treated with some caution.

    [83] Marvatjou v Mordadkhani [2013] NSWCA 157.

21. The Commission should have no regard to the Procare Injury Management (Procare) vocational assessment for earning capacity report dated 17 March 2020.[84] Procare is not an approved SIRA provider and its conclusions were based on incorrect assumptions.

    [84] Bao's documents at pages 159-170.

22. If there is to be any allowance for economic loss, it should be only a notional allowance and not exceeding $100 net per week.

Mr Bao’s submissions

1. Mr Bao accepted QBE’s determination of his pre-accident earning capacity of $897 net per week and claimed $897 net per week from the date of the motor accident to date.

2. In respect of future economic loss, Mr Bao had been rendered effectively unemployable by the motor accident. He had lost the opportunity of employment at a rate of up to $1,000 per week in China and probably $1,000 net per week in Australia. Mr Bao’s residual earning capacity, if anything, is minimal and his ability to exercise that capacity is likely to be hypothetical. Given that, for practical purposes, Mr Bao’s future economic loss falls within a range of $500 to $1,000 net per week, the appropriate course is to award him $750 net per week to the retirement age of 67.

1. Mr Bao has suffered serious injuries in the motor accident. He continues to experience intermittent changes in colour in his right hand and sweating more than three years after the motor accident. On that basis alone, one can put the evidence of Dr Smith aside.

2. Mr Bao was a full-time academic for 20 years. He is right-handed and his evidence is that he cannot use a computer keyboard. Such evidence is unchallenged. It is impossible to run any sort of small business or work in any education system as a teacher or lecturer without computer skills. Mr Bao’s academic skills have been severely affected in the open labour market. He is unfit for retail work.

3. Mr Bao had a solid work background and left Shanghai University and migrated to Australia for family reasons. Without his daughter, Mr Bao would have gone back into the workforce. It was his intention to return to the workforce once his daughter had completed her studies.

4. Whilst there are inconsistencies in the way in which Mr Bao’s economic loss case has been presented, it is not fair to characterise his evidence as being a reluctance to answer questions honestly. Mr Bao was dealing with an environment (the audio-visual hearing) that was difficult to traverse, even for those with experience in it, through an interpreter and dealing with documents that were not in his native language. He did his best to truthfully answer the questions he was asked. He gave answers to some questions against his interests. He was not embellishing.

5. There were many references in the Ashfield General Practice clinical records to Mr Bao being unemployed as opposed to being retired.

6. Mr Bao has suffered a significant reduction in his earning capacity on the open labour market. It is probably a case that calls for a buffer for a reduction in earning capacity for the past and for the future. It would have to be a buffer grounded in reality. On the evidence, it cannot be $1,000 per week on the tables. It should be a buffer of $200,000 to $250,000.

Consideration and findings

1. The authorities make it clear that damages for lost income are awarded for impairment to income-earning capacity when the impairment is productive of income loss: Graham and Medlin.

2. In calculating any economic loss into the future, I must have regard to the provisions of section 4.7 of the MAI Act.

3. There are three questions to be answered in assessing income loss:

   (a)    what was the claimant’s income-earning capacity at the time of injury?

   (b)    to what extent was it impaired by the injury?

   (c)    to what extent was the impairment productive of income loss?

4. A very useful summary of the applicable principles, with reference to authority, was provided by McColl JA and Hall JA in Kallouf as follows:

   (a)  damages for past and future loss of income are allowed because diminution of earning capacity is or may be productive of financial loss: Graham; an alternative way of expressing the principle is that the claimant is compensated for the effect of an accident on the claimant’s ability to earn income: Medlin;

   (b)  although the exercise involves assessment of lost earning capacity and not loss of earnings, evidence of wage rates, known for the past and likely in the future, provides a basis for assessment;

   (c)   both the lost capacity and the economic consequences of that loss must be identified before it will be possible to assess the sum that will restore the claimant to their position but for injury;

   (d)  what was earned in the past may be a useful guide to what might be earned in the future but it does not always provide certain guidance;

   (e)  assessment of future income loss necessarily involves the consideration of future possibilities or hypothetical events; the exercise is imprecise and carried out within broad parameters;

   (f)    evaluation of the extent to which a claimant may in future lose time from work and of the proper compensation to be allowed depends on the evidence;

   (g)  an error of principle would be involved in concluding, in the absence of evidence, as a matter of certainty that a claimant will suffer future income loss;

   (h)  the onus is on the claimant to provide evidence in support of the claimed diminution in earning capacity; past income is relevant to this consideration but is not always determinative;

   (i)    the onus is on the insurer who contends that the claimant has a residual earning capacity to provide evidence of the extent of that capacity and of the availability of employment;

   (j)    in both cases the evidence must establish more than a mere suggestion of loss or capacity, and

   (k)   where it is clear that income-earning capacity has been reduced but its extent is difficult to assess, the absence of precise evidence will not necessarily result in non-recovery of damages; the task is to consider a range of what may be possibilities only that a particular outcome might be achieved to arrive at an award that is fair and reasonable.

5. In Morvatjou, it was said that it was glaringly improbable that the plaintiff earned only the income disclosed in his tax returns at a time when he was supporting himself, his wife and two children. McColl JA referred to the reasons of von Doussa J in Giorginis v Kastrati[85] in which he said that, while such a discrepancy reflected on a plaintiff’s credit so that his or her evidence generally needed to be scrutinised with special care, it did not necessarily disqualify him or her from recovering damages based on evidence of actual earnings. McColl JA did not endorse the proposition that a plaintiff must admit failure to disclose income to tax authorities but she continued the Court of Appeal’s emphasis on the need to assess diminution of income-earning capacity, acknowledging that evidence of actual income was the most useful guide when undertaking this exercise.

   [85] Giorginis v Kastrati [1988] 49 SASR 371.

6. Where a plaintiff demonstrates some loss of earning capacity extending beyond the date of trial, although difficult to assess, the courts are bound to award something unless, on the material before the court, it can be seen confidently that the damage suffered by the plaintiff will not in fact be productive of income loss: Medlin.

7. QBE submitted that the Commission is not required to consider section 3.8 of the MAI Act when assessing Mr Bao’s entitlement to past and future economic loss in this claim for damages. Mr Bao’s counsel did not make any submission to the contrary. I agree with QBE’s submission in this regard.

8. As Mr Bao’s counsel quite properly conceded, there were inconsistencies in the way in which Mr Bao’s economic loss case was presented. There were entries in medical and allied health providers’ records referring to Mr Bao as either not working or having retired by the time of the motor accident. There was Mr Bao’s unconvincing explanation that, in his culture, retired meant ceasing work for an employer but did not include being self-employed.

9. Another significant difficulty in respect of Mr Bao’s claim for economic loss was the absence of any corroborative evidence. There were no income tax returns in evidence or other documentary evidence supporting his income from tutoring students in Mandarin. There were no tax invoices or appointment diaries in evidence. There was no evidence from Mr Bao’s daughter, who had been residing with him since they migrated to Australia and who still resides with him. Mr Bao’s evidence was that he commenced tutoring students in about 2013 and his tutoring work built up over time. There was no evidence to corroborate his evidence in this regard.

10. There was no corroborative evidence supporting Mr Bao’s income from his “active”[86] travel blogging. There was no evidence as to when he commenced travel blogging for a magazine in China. He alleged that he published one or two articles each week. Mr Bao’s evidence in this regard was extremely vague and completely uncorroborated.

    [86] Bao’s documents at page 1 at [10].

11. There was no corroborative evidence in respect of the efforts Mr Bao made to build connections in China that would result in income producing work for him in academia once again. Mr Bao’s evidence was that for several years prior to the motor accident he had returned to China once or twice each year to, amongst other things, build connections in the “hope”[87] of developing an association that might lead to business and working opportunities for him. There was no evidence that such hope had developed or was developing into a reality over those several years. Mr Bao’s evidence in this regard was extremely vague and unconvincing.

    [87] Bao’s documents at page 2 at [13].

12. There was no corroborative evidence about any steps Mr Bao took in respect of his proposed intention to return to full-time employment in either Australia or in China at Shanghai University.

13. Mr Bao had been in receipt of Centrelink benefits on and off since 4 May 2015.[88] Payments were suspended each time he travelled to China and resumed on his return to Australia. Mr Bao’s evidence was that Centrelink benefits commenced when he “had a period of unemployment in 2013”.[89] However, the Centrelink employment services report dated 27 April 2016 noted that Mr Bao last held employment “over five years ago,”[90] where he worked part-time in a video store until its closure.

    [88] QBE’s documents at pages 139-140.

    [89] Bao’s documents at page 1 at [9].

    [90] QBE’s documents at page 158.

14. The author of the Centrelink employment services report assessed Mr Bao’s temporary work capacity at the time as 8 to 14 hours per week in light sedentary employment due to his asthma related endurance limitations, with a baseline work capacity of 23 to 29 hours per week within two years. Another barrier identified to Mr Bao’s ability to work, obtain work or look for work was his significant lack of English literacy and language skills. Further, Mr Bao eventually conceded in his oral evidence that he had suffered from a long-standing condition in his lower back that required regular and ongoing chiropractic treatment. The Ashfield General Practice clinical records disclosed cervical spine disc bulging with mild bilateral stenosis of the C5/6, C6/7 and C7/T1. In light of such evidence, I find that Mr Bao already had a reduced income earning capacity at the time of the motor accident.

15. Mr Bao conceded in his oral evidence that he had not disclosed the income he alleged he had derived from blogging or tutoring to Centrelink or the Australian Taxation office. He explained that he had not disclosed his tutoring income in the tax returns because “it was not so much money”.

16. In his evidentiary statement, Mr Bao stated that he did a minimum of 10 hours and a maximum of 20 hours per week tutoring. In his oral evidence, Mr Bao stated that, but for the motor accident, he would have been tutoring 10 hours each week.

17. All of the matters raised above have caused me to treat Mr Bao’s evidence in respect of his claim for economic loss with caution. I have formed the view that Mr Bao’s evidence in respect of his motor accident related economic loss contained a significant element of exaggeration.

18. On the evidence, I am not satisfied that Mr Bao had the intention to return to full-time employment. He had been on Centrelink benefits for a few years prior to the motor accident.

19. On the evidence, I am not satisfied that Mr Bao’s alleged efforts to build connections in China would result in any income producing work for him in academia or an education related business relationship with Chinese interests. It was nothing more than a hope on his part.

20. On the evidence, I am not satisfied that Mr Bao’s blogging and photography was anything more than an enjoyable pastime.

21. Despite the lack of any corroborative evidence, I find that, on the balance of probabilities, Mr Bao was tutoring students in Mandarin on a casual basis. However, due to his propensity to exaggerate, I do not accept that he was averaging 10 hours per week at an average of $25 per hour. I note Dr Rickard-Bell’s observation:

    “Mr Bao was a tutor in Chinese language, although it was unclear exactly what the tutoring involved, and the number of hours and students varies enormously. I was unable to get a clear picture of whether there were any regular work hours or what the pre-accident employment entailed.”[91]

    [91] QBE’s documents at page 119.

22. I find that Mr Bao’s most likely future circumstances but for the motor accident related injuries are that he would have continued casual tutoring.

23. I find that, at the time of the motor accident, Mr Bao had an income earning capacity of about $125 net per week from his tutoring work, being an average of five hours per week at an average of $25 per hour. This was consistent with his evidence that “it was not so much money”.

24. Dr Dai has continued to certify that Mr Bao has no current work capacity for any form of employment.[92]

    [92] Bao’s documents at pages 867-1092.

25. Associate Professor Gumley opined that Mr Bao did not have a current capacity to work with his right hand and arm.

26. Dr Glen Smith opined that Mr Bao was unfit for employment due to his anxiety and depressive symptoms, difficulties thinking, difficulties concentrating and reduced motivation for activities.

27. Dr Rikard-Bell opined that Mr Bao’s psychiatric injury had caused incapacity for work as a self-employed tutor and travel blog writer but thought it was unusual that it would prevent him from being able to undertake other activities.

28. I have not taken Dr Anthony Smith’s opinion into consideration for the reasons previously stated.

29. Dr Dixon opined that Mr Bao may be able to act as an oral Chinese tutor. However, such opinion did not appear to take into account Mr Bao’s psychological condition and symptoms.

30. On the preponderance of the medical evidence, I find that the combined effect of Mr Bao’s motor accident related chronic physical and psychological injuries and disabilities have resulted in a total impairment of his already reduced income-earning capacity as a tutor and has been productive of income loss. Any submission that Mr Bao has a residual earning capacity would only be based in theory rather than reality on the open labour market bearing in mind his poor language skills, his asthmatic condition, and his long-standing lower back and neck conditions.

31. Mr Bao’s counsel submitted that Mr Bao’s economic loss claim is probably a case that calls for a buffer for a reduction in earning capacity for the past and for the future. I agree with the submission because the impact of the injuries on the economic benefit from exercising earning capacity after injury is difficult to determine. A buffer for future economic loss in the circumstances of this case is appropriate.

32. In my view, an appropriate allowance for Mr Bao’s past and future loss of earning capacity would be $70,000 inclusive of superannuation benefits. This figure can be supported on the basis of a weekly loss of $125 for the past 221 weeks and then to the age of retirement at 67 years on the usual table of multipliers with a deduction for vicissitudes and then rounded up to $70,000.

33. Accordingly, I assess Mr Bao’s entitlement to past and future loss of earning capacity at $70,000 inclusive of superannuation benefits.

ASSESSMENT OF DAMAGES SUMMARY

1. Under section 7.36(1)(b) of the MAI Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.

2. I assess the claim as follows on the findings set out above:

   Non-economic loss:  $250,000

   Economic losses:

   ·Past and future loss of earnings (inclusive of superannuation):     $70,000

   ·Fox v Wood damages:  $0

   ·Interest:  $0

   ·Other:  $0

   Total of economic losses and non-economic loss:  $320,000

   Total damages assessed:  $320,000

   The total damages assessed are reduced by 30% for contributory
   negligence:  $96,000

   Total damages after the 30% reduction for contributory negligence:    $224,000

   Mr Bao’s economic loss is to be reduced by, and QBE is to have credit for, the following payments:

   ·Payments made under section 3.40(1)(b) of the MAI Act:             $45,240.92

COSTS AND DISBURSEMENTS

1. I assess Mr Bao’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 in accordance with the attached sheet.

CONCLUSION

1. On the issue of contributory negligence, Mr Bao’s damages are to be reduced by 30% on account of his contributory negligence.

2. Under sections 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $224,000 after the 30% reduction for contributory negligence.

3. The amount of Mr Bao’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $39,410.83 inclusive of GST.

LEGISLATION

1. In making my decision I have considered the following legislation and guidelines:

   (a)  the MAI Act;

   (b) Motor Accident Injuries Regulation 2017, and

   (c) Personal Injury Commission Rules.