BKH v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BKH v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 66
Claimant:	BKH
insurer:	Insurance Australia Limited t/as NRMA Insurance
SENIOR Member:	Brett Williams
DATE OF DECISION:	21 February 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident InjuriesAct 2017; claims assessment; liability admitted; claimant 31-years-old at date of assessment; qualified as a lawyer in 2016; as a result of the accident suffered traumatic fracture of the right clavicle, traumatic fracture of the right transverse process of the T1, traumatic fracture of the right ribs, traumatic fracture of the sternum, soft tissue injury of the cervical spine, soft tissue injury of the central forehead region, laceration to the central forehead region, laceration to the right lower calf, right sided rib fractures, pneumothorax in the right lung, scarring, chronic pain, depression and anxiety; parties agreed that the claimant was entitled to damages for non-economic loss, and economic loss; parties agreed that future economic loss should be allowed by way of a buffer; Held – non-economic loss assessed at $320,000; past economic loss agreed at $188,340 (loss of earnings, loss of superannuation and section 4.5(1)(d) damages), buffer of $475,000 awarded for future economic loss.
determinations made:	CERTIFICATE OF DETERMINATION 1. Under sub-ss 7.36(3) and 7.36(4) of the Motor Accident Injuries Act 2017, I specify the amount of damages for this claim as $983,340. 2. The insurer is to pay the claimant’s costs in accordance with the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017.

Background

BKH (claimant) was injured in a motor accident at Marsfield on 26 October 2019 (accident). At the time of the accident she was a pillion passenger on a motorcycle.
Following the accident the claimant made a claim for damages on Insurance Australia Limited t/as NRMA Insurance (insurer) under the Motor Accident Injuries Act 2017 (MAI Act). The insurer accepted liability for the claim on 19 November 2021.
These proceedings, by which the claimant referred her claim for damages to the Commission for assessment, were commenced on 26 October 2022.
The parties agree that the claimant is entitled to damages for non-economic loss, past economic loss and future economic loss. Other than with respect to past economic loss, which has been agreed, the dispute between the parties centres on the quantification of the claimant’s damages.

Assessment conference

The proceedings were listed for assessment on 15 February 2023. The scope of the matters in dispute were significantly narrowed at the assessment.
At the assessment, the parties confirmed that the following matters are agreed:
(a)    as a result of the accident the claimant suffered the following injuries:
i.traumatic fracture of the right clavicle
ii.traumatic fracture of the right transverse process of the T1
iii.traumatic fracture of the right ribs
iv.traumatic fracture of the sternum
v.soft tissue injury of the cervical spine
vi.soft tissue injury of the central forehead region
vii.laceration to the central forehead region
viii.laceration to the right lower calf
ix.right sided rib fractures
x.pneumothorax in the right lung (not requiring intercostal drainage)
xi.scarring
xii.chronic pain
xiii.depression
xiv.anxiety;
(b)    the claimant’s past economic loss is $155,000;
(c)    the claimant’s past loss of superannuation is $16,340;
(d)    the s 4.5(1)(d) damages (Fox v Wood) are $17,000, and
(e)    the insurer is entitled to credit for weekly statutory compensation paid to the claimant. The parties are to reach agreement about the sum once these reasons have been published, as additional payments may have been made. If there is a dispute about the sum for which the insurer is to have credit, the parties have liberty to apply.
The parties also agreed to a range of further matters that are addressed in a statement of agreed facts dated 14 February 2023. The matters agreed include, relevantly;
(a)    the claimant’s life expectancy is 87 years;
(b)    there is an impairment of the claimant’s past earning capacity that has been productive of economic loss;
(c)    the claimant’s earnings at the time of the accident were $48.63 gross an hour and she was working 35 hours a week;
(d)    there is an impairment of the claimant’s future earning capacity that will be productive of economic loss;
(e)    the claimant’s age of retirement is 67 years, and
(f)    the length of time to retirement is 36 years.
The statement of agreed facts records that there is a dispute about vicissitudes and the rate at which future loss of superannuation should be calculated.
The parties are to be congratulated for the constructive approach they took to narrowing the matters in dispute.
Given the matters agreed between the parties, the primary issues to be resolved relate to the quantification of the award for non-economic loss and the buffer for future economic loss.
BKH gave evidence at the assessment. I will address her evidence, and the submissions made by the parties, later in these reasons.
By the time the assessment concluded, each parties submissions had evolved in material respects from the written submissions contained in the joint bundle. In particular, the claimant’s case in relation to future economic loss was put on the basis that the award for this head should be by way of a buffer, as opposed to a sum calculated on the basis of a weekly loss. The insurer agrees that the award for future economic loss should be by way of a buffer.
As to the award for non-economic loss, the claimant argued that an allowance of $400,000 was appropriate, while the insurer argued that the award should be in the order of $200,000. In terms of an appropriate buffer award for future economic loss, the claimant argued that an allowance of $800,000 was appropriate. In the insurer’s submission, the allowance for this head should be a buffer of $150,000.

evidence

Claimant’s evidence

The claimant relies on her statement dated 12 October 2022 (claimant’s statement). She also gave evidence at the assessment. Her credit was not in issue. Her reliability was in issue, as I understand it, to the extent that she could not recall some matters in relation to her pre-accident employment, and a number of matters recorded in treatment records.

Claimant’s statement

In her statement, the claimant gives evidence about her education and employment history, her pre-accident health, the accident, her injuries and disabilities, treatment, her personal and domestic life, and her post accident employment.
The claimant’s evidence is that she attended a selective high school and achieved an ATAR of 98.7. She graduated from the University of Sydney in 2015 with a Bachelor of Arts and Bachelor of Laws. She worked as a legal assistant while studying, and as a paralegal after completing her university studies. She was admitted as a lawyer of the Supreme Court of NSW in 2016. She worked as an NDIS Appeals officer with Disability Advocacy NSW from April 2016 to April 2017. She then worked as an advocacy co-ordinator at Self Advocacy Sydney from April 2017 to July 2018. By August 2018 she had commenced employment as a solicitor with the Financial Rights Legal Centre (FLRC), specialising in consumer rights, banking and insurance law.
The claimant’s statement records that prior to the accident she led an active and healthy lifestyle; she enjoyed gymnastics, travelling and socialising with friends.
The claimant’s statement addresses the disabilities from which she suffers as a result of her accident caused injuries. Those disabilities include, but are not limited to, restriction of movement in her right shoulder, right shoulder and cervical spine pain, pain related restriction of movement in her neck, neck pain when sitting and standing for prolonged periods, depression, anxiety, fatigue, chronic pain and disturbed sleep.
The claimant states that she has also experienced headaches, which she attributed to her neck injury. She states that when she is not too active the pain is reasonable, and sits around 2/10 on a visual analogue scale. When the pain becomes worse while she is working, undertaking physiotherapy exercises, or driving, it can go up to 7/10.
The claimant states that sleeping is a “real problem” for her. She wakes during the night and feels exhausted during the day. She states that she had experienced some issues with her memory since the accident. She uses opioid medication for pain, and has received psychological counselling. She has also been treated by a pain management specialist, neurosurgeon, orthopaedic surgeon, and her general practitioner. In addition to the right shoulder surgery performed when she was admitted to hospital following the accident, she underwent further surgery to her right shoulder on 31 July 2020.
Following the accident she was not able to work for an extended period. She was not able to socialise or participate in the physical activities she enjoyed prior to the accident. She began to isolate herself. She sees her friends less often, and no longer goes out as she had before the accident. While she is able to drive, it is painful. After an hour she needs a break. She is able to write and type, but not for extended periods.
The claimant states that because her symptoms became so debilitating she resigned from her employment at FRLC on 15 April 2022. She subsequently secured casual employment as an appeals co-ordinator with the NDIS, commencing on 7 September 2022. In this role she works 15 hours a week. She is able to work from home. While the flexible work arrangement accommodates her symptoms, it was not as mentally stimulating as her position with FRLC.

Claimant’s oral evidence

The claimant gave evidence at the assessment conference. I found her to be an impressive witness. She presented as an intelligent and articulate individual. I found her to be an honest and reliable witness. While on occasion she was not able to recall some matters, this did not diminish my impression of her as a witness, or the reliability of her evidence.
In her oral evidence, the claimant confirmed that she was right hand dominant. She explained that the gymnastics she performed prior to the accident involved aerial work, ribbons and silk. She said it was like a “circus act”, and involved dramatic tricks. Prior to the accident she engaged in gymnastics three to five times a week. She has been unable to return to gymnastics since the accident. The claimant explained that this was because it involved upper body strength, and that her right shoulder injury and associated pain was not compatible with this.
She gave evidence that she does not socialise as she did prior to the accident as she was too tired, exhausted and fatigued. She explained that, with respect to difficulties sleeping, the evidence in her statement at [26] was a “worst case”, and that on average she slept for eight or nine hours with interruptions. She gave evidence that she wakes a number of times during the night due to pain in her right shoulder. On each occasion it took her time to get back to sleep. She gave evidence that she awakes in the morning irritable and cranky. I accept the claimant’s evidence about the problems she has with her sleep, and the impact this has on her.
The claimant gave evidence that she experiences pain in her neck and right shoulder when she wakes up. She said that sitting in static positions caused discomfort in her neck and shoulder. Her neck becomes stiff and uncomfortable the longer she sits. Her evidence was that after four hours the pain in her neck and shoulder becomes unbearable. Although she attempts to alleviate the pain with stretching and by re-adjusting her position, her neck and right shoulder remained painful and uncomfortable. The claimant’s evidence was that after four hours work she felt exhausted, and that she would either sit down or lie down to rest.
The claimant gave evidence that she takes Palexia SR and IR for pain relief. These are opioid medications. She takes the Palexia SR twice a day. On days she is working she takes the medication only after she has finished working as the medication impairs her judgement. While her statement records at [27] that she experienced problems with her memory, her oral evidence was that this was no longer a problem. The claimant’s evidence was that while she received pain management treatment from Dr Ho, she has not seen the doctor since early 2022.
The claimant explained that while she can drive a car, she experiences pain in her neck and right shoulder as a result of driving. She has become a nervous driver since the accident. Typing and writing exacerbated pain in her neck and shoulder. She found it difficult working for a full day because of pain.
The claimant gave evidence that she resigned from FRLC because she was not able to return to full hours. She said that she wanted to return to full time hours, and that she gave it her “best shot”. She tried to increase her hours for a month or two and “it just didn’t work”.
I accept the claimant’s evidence in relation to the pain she experiences in her neck and right shoulder, the activities that exacerbate that pain, and the effect of the pain on her sleep. I also accept her evidence that she tried to increase her work hours at FRLC and that she was unable to do so as a result of pain in her neck and shoulders.
As to her career intentions, the claimant gave evidence that working at FRLC was a strategic move, as she ultimately wanted to work in-house at a bank or insurance company. She thought that the skills that she developed at FRLC would put her in a good position to make the move to an in-house role. Her evidence was that, prior to the accident, she intended to stay at FRLC for a year before seeking a role as an in-house lawyer. At the time of the accident she had not applied for an in-house legal role.
The claimant explained that her work at FRLC included assisting individuals negotiate with banks and insurance companies. This included supporting clients through the internal review processes of financial institutions. The role was sedentary. She dealt with banks and insurance companies on a daily basis. The work involved issues arising under the Insurance Contracts Act, the Corporations Law, and industry codes of practice.
The claimant’s evidence was that work in the community sector was not stable, often involved contract roles, and did not offer the level of remuneration she aspired to.
I accept the claimant’s evidence that, prior to the accident, she intended to move from legal work in the community sector to an in-house role in a financial institution. For clarity, I accept that the “in-house role” the claimant referred to is a reference to working as a lawyer in a financial institution.
In response to questions from Ms Allen, the claimant did not recall attending her GP on 14 March 2016 and providing a history that she had started appearing in court; that she found it stressful; and that she wanted something to “calm her down”. Nor did she recall seeking treatment on 28 January 2019 for panic attacks related to her work. She was also asked about an attendance on 11 May 2019 that related to “stress at work” and depressive symptoms, with respect to which she sought a referral to a psychologist. The claimant’s evidence was that she didn’t think she attended a psychologist following the consultation, despite a mental health care plan being produced. She denied that, prior to the accident, she was struggling with anxiety and stress. She agreed that in the 12 months before the accident she had taken 99 hours of personal leave. Her evidence was that the leave related to supporting a friend following the death of a parent and an inflammatory disorder that required hospitalisation. She said that the medical issue that required hospitalisation was a “one off” problem, and that she has not experienced the problem since that time.
The claimant’s evidence was that she experienced no improvement in her right shoulder function between seeing Dr Bodel in 2021 and Drs Bentivoglio and Shatwell in 2022. She disagreed that she had a full range of movement in her neck and right shoulder. As I understood her evidence, she experienced restrictions in movement due to pain.
She gave evidence that she could perform light house work and domestic chores, and can walk six to seven kilometres. She confirmed that she has never returned to full time work following the accident. The claimant gave evidence that, after returning to work in 2020, she initially worked in the office during the first covid lockdown as the infrastructure was not in place to allow her to work from home. She said that she eventually did work from home in both 2020 and 2021. She found working from home was easier, in that it did not involve travel to and from work.
In response to questions from Ms Allen, the claimant gave evidence that she dropped down from working two full days and a four hour day (2 ½ days a week) because she found her body needed time to recover. She found aspects of working from home stressful. She left FRLC because she thought that concessions were being made for her; she was not participating in activities that other junior solicitors were doing. While the role at FRLC was a full time role, she was working part-time, and returning to full-time work was not, to her mind, achievable. In her assessment, she was only capable of working two full days a week.
The claimant was taken to the notes from her psychologist, who recorded on 31 March 2022 that she had resigned from her role and that she had “neglected looking after herself because of work stress and long hours”. The notes also record that she was “feeling sad that she [was] leaving her role”.
The claimant’s evidence was that she cannot perform full time hours because of pain. She used opioid medication as a “tool” to manage her pain. She agreed that she had been told by doctors to stop taking opioid medication. Her evidence was that the medication impairs her judgement, and that is why she only takes it after she has finished work for the day.
She gave evidence about the nature of her work as an advocate at Disability Advocacy NSW between April 2016 and April 2017. She confirmed that she was not practicing as a lawyer when she was employed in that role. Likewise, she was not practicing as a lawyer when she was working at Self Advocacy Sydney between April 2017 and July 2018.
Her current role as an appeals co-ordinator is not a legal role. She disagreed that she could work full time as a solicitor.

Other evidence

The documentary evidence relied on by the parties is contained in a joint bundle lodged with the Commission. I have read and considered the material contained in the joint bundle. The bundle contains over 1,400 pages. At the assessment I asked counsel for both parties to take me to specific material in the bundle that was relied on.
I do not propose to summarise all the material contained in the bundle. I will, however, provide a summary of some of the material to provide context for my reasons and assessment of damages.

Medico-legal evidence

Dr Mason, psychiatrist, reported on 7 May 2021. The doctor expressed the opinion that there was a potential opioid use disorder that the claimant “struggles to bring under control”. In his opinion, the claimant developed symptoms of both depression and anxiety as a consequence of the accident and its physical sequelae. There were some initial trauma-related psychological symptoms but she did not go on to satisfy the DSM-5 diagnostic criteria for post-traumatic stress disorder. The doctor diagnosed major depressive disorder with anxious distress. The condition was in the process of resolving.

In Dr Mason’s opinion, the long term prognosis is dependent on the outcome of the claimant’s physical injuries and the ongoing nature of her pain. The claimant would benefit from ongoing monthly treatment with her psychologist for a period of at least 12 months. It is not likely, in his opinion, that the claimant will require psychotropic medication. In the doctor’s opinion, her future occupational impairment will largely arise from her physical injuries. He did not expect any occupational impairment from her psychological injuries. In a supplementary report the doctor assessed a 6% permanent impairment arising from the claimant’s psychiatric injury.
Dr Davies, neurosurgeon, reported on 12 May 2021. In the doctor’s opinion, as a result of the accident the claimant suffered a traumatic fracture of the right clavicle, traumatic fracture of the right transverse process of T1, and soft tissue injury to her cervical spine. In his opinion, the prognosis is for ongoing mild restriction of movement at the right shoulder and some persisting pain around the shoulder girdle. It was likely she would have ongoing pain at the right cervico-thoracic junction and some mild restriction of neck movement.
In Dr Davies’ opinion, the claimant was limited in her activities with the right upper limb. She can only lift a maximum of about 3kg with the right upper limb and has difficulty lifting things above shoulder height. She has had to change the way she dresses the upper part of her body. The doctor noted the claimant’s history that she had been trying to increase her hours of work but found it difficult to undertake a full day of work due to increased pain. Following the second shoulder surgery, she continued to report discomfort around the shoulder and restricted movement, together with ongoing pain at the cervico-thoracic junction on the right side and restricted neck movement.
In Dr Davies’ opinion, it was unlikely that the claimant will be able to tolerate a return to full time hours. The most likely outcome is for permanently restricted hours, in the vicinity of four to five hours a day five days a week. Her capacity needed to be re-assessed following any further treatment. In a separate report of the same date the doctor assessed a 14% permanent impairment as a result of the claimant’s right shoulder scarring, neck and right shoulder injuries.
Dr McGlynn, hand, plastic and reconstructive surgeon, reported on 9 July 2021. The doctor assessed the claimants forehead, right shoulder and right calf scarring. The scarring was permanent, unlikely to deteriorate, had no effect on the claimant’s physical capacity to work as a lawyer, and would cause no future occupational impairment. It did, however, limit some social and recreational activities and cause embarrassment. In a separate report of the same date, the doctor assessed a 5% permanent impairment as a result of the scarring.
Dr Bodel, orthopaedic surgeon, reported on 17 March 2021. The doctor recorded that the claimant reported difficulty concentrating with her work at times because of the pain over the base of her neck and top of the right shoulder and in the periscapular region. The doctor diagnosed a closed head injury, soft tissue musculoligamentous strain to the neck, fracture to the outer end of the right clavicle, a soft tissue injury to the rotator cuff of the right shoulder, rib fractures on the right-hand side, a small pneumothorax on the right-hand side, significant psychological disturbances as well as the residual effects of scarring, particularly over the right shoulder. In his opinion, the claimant had been left with considerable ongoing disability in the right side of the neck, the upper part of the back in the periscapular region, particularly in the area of the superior pole of the scapula and the clavicular area, the right acromioclavicular joint, the right shoulder and deltoid.
In Dr Bodel’s opinion, the claimant’s long-term prognosis was guarded because of the persisting pain. He thought that she was coping well with pain, and that “hopefully” further control of her pain will assist her in her ability to continue with her chosen profession until retirement age. She experienced pain and aching in the shoulder, which was aggravated by work, particularly computer based work activities. This will continue indefinitely. In a separate report the doctor assessed a 14% permanent impairment as a result of the scarring, neck and right shoulder injuries.
Dr Bodel reported again on 22 June 2021. The report addresses an error in his assessment of permanent impairment arising from the scarring.
Associate Professor Haersch, plastic surgeon, reported on 11 January 2022. The doctor diagnosed post-traumatic scarring of the forehead, right calf and post- surgical scarring of the right clavicular area. There was some minor loss of sensation in some of the branches of the right saphenous nerve. No further treatment was required for the forehead and calf scarring. Surgical revision of the right shoulder scar was a possibility. The scarring gave rise to a 4% permanent impairment.
On 18 May 2022, Dr Bentivoglio, neurosurgeon and spinal surgeon, reported. The doctor recorded complaints of persistent right neck pain. The claimant also experienced numbness in her arms. On examination there was full neck and shoulder movement. Tone and power were normal in both arms. The doctor diagnosed neck pain secondary to the fracture of the T1 transverse process and the fracture of the first rib. On examination he could not find any evidence of neurological dysfunction, except for depressed right supinator reflex. The doctor thought that this finding was “out of context” with any other abnormality on neurological examination, and the cause was unclear.
In Dr Bentivoglio’s opinion, the claimant did not require further medical, hospital or surgical treatment. She did not require further physiotherapy, occupational therapy, or rehabilitation. The claimant was able to resume her normal life with minor restrictions. She should not lift more than 5-10kg above the level of her arms, and should avoid anything that puts a lot of stress and strain on her cervical spine. The doctor assessed a 13% permanent impairment as a result of her scarring, neck and right shoulder injuries.
Associate Professor (A/Prof) Shatwell, orthopaedic surgeon, reported on 2 June 2022. The doctor recorded that the claimant experiences pain in the root of the neck with some radiation into the right shoulder region. The pain is exacerbated by activity and increases with static postures. On a bad day, the pain may reach 9 out of 10. The claimant tries to control the pain when it is severe with Palexia immediate release tablets 50mg. He recorded that she usually takes one regularly each day but may take a second tablet if pain is severe. On a good day, the pain is rated around 2 to 3 out of 10. She is able to walk with reasonable comfort and can manage six or seven kilometres without exacerbating the pain in her neck and shoulder region. The claimant had regained a full range of movement in her shoulders but cannot use her upper limbs for the strenuous movements involved in aerial gymnastics.
A/Prof Shatwell diagnosed a fracture of the outer-end of the right clavicle at the acromioclavicular joint with complete disruption of the coracoacromial ligaments, a right-sided small apical pneumothorax with a right upper lobe contusion, which did not require a chest drain, a right-sided T1 transverse process fracture with minimal displacement, a fracture of the right first rib at the costochondral joint and a fracture of the superior part of the manubrium sternum. In his opinion, the claimant is able to continue with her work as a solicitor or lawyer or in any suitable administrative or managerial position as she did prior to the accident. He assessed an 11% permanent impairment as a result of the scarring, right shoulder and neck injuries.

Amy Knox’s statement

Ms Knox provided a statement in the claimant’s case. Although available to give oral evidence at the assessment, she was not called by the claimant and not required to answer questions by the insurer. Ms Knox is a solicitor of the Supreme Court of NSW, having been admitted in 2011.
Ms Knox’s statement records that the claimant reported to her at the FRLC from January 2020 until March 2022. She states that the claimant did not return to full time duties following the accident, and that attempts to do so were not successful. Her evidence is that prior to the accident the claimant was “an incredibly focused young woman” and that she was “most intelligent, and adept at spotting legal issues”. She was motivated, meticulous and paid close attention to detail. The claimant had an impressive work ethic, could handle a significant volume of work, and consistently gave good advice within fixed timeframes.
Ms Knox states that after the accident, the claimant returned to work on a part time basis. She never completed a full day’s work. She could not get through the volume of work that she was able to do prior to the accident. She noticed an increased frequency in her contact with the claimant, who would check in with her more regularly and seemed to need greater support. To her observation, the claimant was tired and seemed to lack confidence. On questioning, the claimant told her she experienced pain. She described the changes in the claimant after the accident as being “quite stark”.
I accept Ms Knox’s evidence about the claimant’s performance at work prior to the accident and her observations that, following her return to work after the accident, the claimant was tired and seemed to lack self-confidence, and could not get through the volume of work that she was able to prior to the accident.

submissions

The position taken by the parties in their written submissions was modified at the assessment. As recorded earlier in these reasons, there was agreement about a range of matters, including with respect to the injuries the claimant suffered as a result of the accident and past economic loss. The disputed heads of damages are non-economic loss and future economic loss. The claim for future economic loss was ultimately framed by the claimant on the basis that a buffer award was the appropriate way to compensate her. The insurer agreed that a buffer should be awarded for future economic loss. Given the way that the dispute was ultimately framed, I will only address the submissions that are relevant to the awards for non-economic loss and future economic loss.

Claimant’s submissions

The claimant’s written submissions are dated 1 November 2022. The submissions canvas the progression of the claimant’s symptoms after the accident, the material from treatment providers and the medico-legal evidence.
The claimant argues that, given the impact that her injuries and associated disabilities have had on her life, an award of $400,000 for non-economic loss is appropriate.
The written submissions argue that, but for the injuries she sustained in the accident, the claimant intended to remain in full-time employment as a solicitor, eventually transitioning to private practice and progressing to partner. This was not the case she ran at the assessment; her case ultimately was that she would have sought and secured work as an in-house lawyer at a financial institution.
The claimant’s written submissions argue that she has almost unanimous support for an ongoing partial incapacity for work. While the written submissions refer to and rely on the economic loss report prepared by Mr Lee dated 12 October 2022, at the assessment the claimant cast her claim for future economic loss on the basis that she should be compensated by way of a buffer. Further, she no longer relied on Mr Lee’s report in terms of the quantification of her claim for future economic loss.
In oral submissions, Mr Young, of counsel, argued that, in terms of her work capacity, I should accept the claimant’s evidence that she is “doing the best she can”. He submitted that I ought not accept the opinions of Drs Bentivoglio and Shatwell in relation to the claimant’s capacity to earn. In addition to her physical injuries and associated symptoms, Mr Young also argued that her psychological injuries were relevant to her work capacity, and that the impact of all these injuries should be considered as a whole, as opposed to segmenting the impact of each. I agree. Mr Young pointed to Dr Mason’s assessment of adaption. In this regard, the doctor found that while the restriction on the claimant’s ability to work is largely due to pain it is also contributed to by her depression.
In Mr Young’s submission, having regard to her age, the impact of her injuries on her life, including leisure activities, and the scarring, an award of $400,000 for non-economic loss was appropriate.
In terms of future economic loss, Mr Young argued that the claimant had lost the opportunity to work in an in-house legal role. He submitted that a buffer award for this head was appropriate. He argued that the amount of the buffer would be informed by the claimant’s age; that she had been in practice for a short period prior to the accident; was excelling in her work pre-accident; was ambitious; that she had the skill set to find work in an entry level in-house role; that she experienced significant impairment as a result of her injuries; her injuries were not transient and would persist in the long term. He also submitted that the medication she took for pain relief impairs her concentration, and that her impaired sleep was also relevant to her loss of capacity.
Mr Young submitted that the claimant had fulfilled her obligation to mitigate her loss, in that she had found work that reflects her work capacity. She had tried to work for longer hours and found that she could not sustain that work. In Mr Young’s submission, an award by way of a buffer in the sum of $800,000 was appropriate for future economic loss.

Insurer’s submissions

In its written submissions, the insurer argued that the claimant’s claim for non-economic loss was far too high. The insurer submitted the claimant’s non-economic loss damages should be assessed in the low range, and that an appropriate award for this head is $150,000. In her oral submissions, Ms Allen argued that an award with a “two in it” was appropriate.
With respect to future economic loss, the insurer’s written submissions address Mr Lee’s report and his assessment of the claimant’s economic loss. The insurer argues that work as a lawyer is sedentary; that Dr Davies opinion should not be preferred; and that there is no psychological impairment of the claimant’s earning capacity. The insurer expressly relied on A/Prof Shatwell’s opinion that the claimant is able to continue to work as a lawyer or in any suitable administrative or managerial position as she did prior to the accident. The insurer also relies on the opinion of Dr Bentivoglio in terms of the claimant’s work capacity. In the insurer’s written submissions, it argued that a buffer of $50,000 is the appropriate way to compensate the claimant for her future economic loss.
In her oral submissions at the assessment, Ms Allen argued that there had been an improvement with respect to the claimant’s right arm functioning over time; particularly between when she was assessed by Dr Bodel and when she was assessed by A/Prof Shatwell and Dr Bentivoglio. The insurer expressly relied on both A/Prof Shatwell and Dr Bentivoglio’s findings on examination of the claimant’s right shoulder and neck. In particular, Ms Allen pointed to the absence of muscle spasm and the finding of the doctors that there was no wasting in the right shoulder. It is convenient to address these submissions at this juncture.
In his report of 17 March 2021, Dr Bodel recorded that, on examination, there was a restricted range of right shoulder movement. The table in the doctor’s report records a reduced range of movement in each category related to the right shoulder when compared to the left. The doctor expressed the opinion that the claimant was left with considerable ongoing disability in the right side of her neck, the upper part of her back in the periscapular region, particularly in the area of the superior pole of the scapula, the clavicular area, the right acromioclavicular joint and the right shoulder and deltoid. He noted that the claimant experienced pain and aching in her shoulder that is aggravated by work, particularly computer based work. This, in his opinion, will continue indefinitely.
In his report of 2 June 2022, A/Prof Shatwell recorded that the pain in the claimant’s neck and right shoulder is exacerbated by activity and increases with static postures. The doctor recorded that the claimant controlled her pain with Palexia. He recorded that she had regained a full range of movement in her shoulders. In relation to her neck, the doctor reported that there was no sign of spasm on movement. The claimant had normal flexion and extension without discomfort, there was normal rotation to the right and left sides, and normal lateral flexion to the right and left sides. The doctor recorded that there was no wasting or weakness in the claimant’s upper limbs. The report records that active range of movement in each shoulder was the same. This finding is in contrast to Dr Bodel’s findings on examination. A/Proof Shatwell concluded that the claimant is able to continue with her work as a solicitor or lawyer, or in any suitable administrative or managerial position as she did prior to the accident.
I accept that A/Prof Shatwell’s report accurately records his findings in relation to the range of movement in the claimant’s neck and right shoulder when he examined her. I also accept his findings in this regard differ from those of Dr Bodel. However, I accept the claimant’s evidence that she experiences restrictions in the use of her neck and right shoulder due to pain, and that the pain increases after she has been working for four hours. I do not accept A/Prof Shatwell’s opinion in relation to the claimant’s work capacity. As recorded in his report, the claimant’s pain is exacerbated by activity and increases with static postures.
The claimant’s work as a lawyer and as an advocate involves sitting in static postures and computer work. I am satisfied, and I find, that she has a loss of capacity to earn as a result of the pain she experiences in her neck and right shoulder, and that the pain is attributable to her neck and right shoulder injuries.
As to Dr Bentivoglio, he found on examination that the claimant demonstrated full shoulder movement and no wasting. He also recorded that she had full neck movement. While he recorded complaints of persistent right cervical neck pain, there was no arm pain. I do not understand this to mean there was no right shoulder pain. If it does, I don’t accept that is the case. As I raised during the course of oral submissions, on my reading of his report, the doctor did not express an opinion in relation to work capacity. He does state that the claimant is able to resume her normal life with minor restrictions. This, however, was in response to a question directed to the claimant’s ability to resume normal life, and not her work capacity. In response to a separate question in relation to work ability, the doctor did not express an opinion; rather he recorded that she had stopped work because she wanted to find a new job where she does not have to work long hours, and that she wants to work as a solicitor in part-time.
I do not consider that A/Prof Shatwell and Dr Bentivoglio’s findings on examination of the claimant’s neck and right shoulder movement are inconsistent with the complaints she makes in relation to pain and consequential restrictions in those regions. Further, her loss of capacity to earn is not limited to the impact of her neck and right shoulder injuries. I am satisfied that her psychological injury and tiredness from poor sleep due to pain also play a role. I do not accept A/Professor Shatwell’s opinion in relation to the claimant’s work capacity. To the extent that Dr Bentivoglio’s report can be read in a way that suggests that he considered that the claimant has no loss of capacity to earn, I reject his opinion.

I prefer the opinion of Dr Davies in relation to the claimant’s loss of capacity to earn. He thought that it was unlikely that the claimant will be able to tolerate a return to full time hours as a result of discomfort around the right shoulder and restricted movement, together with ongoing pain at the cervico-thoracic junction and restricted neck movement. The doctor’s opinion is more in keeping with my assessment of the claimant’s evidence in relation to her ongoing pain in these regions, evidence that I accept.
Ms Allen submitted that the claimant’s current job is not indicative of her work capacity, and that she has not mitigated her loss. I do not agree. I am satisfied, and I find, that it was reasonable for the claimant to resign from her role at FRLC. I accept her evidence that she was not able to cope with working two and a half days a week. I accept her evidence that she stopped working the four hour day because she needed time for her body to recover. I accept her evidence that FRLC was making concessions for her, and that she was not participating in the things other junior lawyers were doing. I am not persuaded that in resigning her role at FRLC the claimant failed to mitigate her loss. I accept that this was an appropriate step for her to take given the difficulties she was experiencing at work due to her accident caused injuries, including the pain she experiences in her neck and right shoulder and the effect that interrupted sleep has on her. I accept that she is limited in her capacity to work by pain in her neck and shoulder. I am satisfied, and I find, that the claimant has mitigated her loss by moving to employment that is within her capacity; namely her current role as an advocate working 15 hours a week. I am not persuaded that in order to mitigate her loss the claimant is required to work as a solicitor. I do not accept that she can work full time as a solicitor.
Ms Allen argued that the claimant’s current work arrangements, that involve her working 15 hours a week, were not reflective of her actual capacity. I respectfully disagree. She submitted this was clearly a buffer case, that work as a lawyer is sedentary, and that the claimant had received excellent performance reviews. In Ms Allen’s submission, a buffer in the order of $150,000 was appropriate for future economic loss.

damages assessment

I am satisfied on the evidence before me, and I find, that the claimant suffered the injuries set out at [6(a)]. Her accident caused injuries are well documented in the records from her treatment providers and the medico-legal reports.
The claimant gave evidence that she used opioid medication as a tool to deal with her chronic neck and shoulder pain. Her evidence, that I accept, is that the opioid medication impairs her judgement, and that is why she doesn’t take it until after she has finished working. I accept her evidence that she uses the medication as a “tool” to ameliorate her pain.
Dr Mason recorded in his report that the claimant continued to use significant amounts of opioid analgesics; that Dr Ho had expressed concern at her use of this medication, and had encouraged her to reduce the medication. Dr Mason noted that on discharge from hospital the claimant had been prescribed oxycodone. The hospital documents, including the discharge referral notes, confirm that oxycodone was prescribed while she was in hospital. The doctor raised the spectre of a potential opioid use disorder, that the claimant “struggled to bring under control”. I do not have medical evidence before me that addresses, in terms, the impact the claimant’s ongoing use of opioid medication has on her.
I infer that, as the opioid medication requires a prescription, one of her treating doctors continues to prescribe it. In this regard, the clinical notes from her GP record that from 7 November 2019, prescriptions for oxycodone (Endone) were issued to the claimant regularly. In a report dated 27 August 2020, Dr Brooker, pain medicine specialist, confirmed that he had prescribed Palexia 50mg, with the intention being that the claimant would be weaned off gradually.
I find that the claimant’s use of opioid medication is causally related to the injuries she suffered in the accident, specifically her neck and right shoulder injuries. But for the insured driver’s negligence the claimant would not have required opioid medication: s 5D Civil Liability Act 2002 (CLA).
To the extent that the opioid medication impairs her judgment, I find that it gives rise to a loss of capacity to earn.

Non-economic loss

Non-economic loss is defined by the MAI Act as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement: s 1.4 MAI Act. An award of non-economic loss is intended to compensate the claimant for the pain and suffering through which she has gone, and will continue to go through, the loss of the amenity of her life through which she has gone and through which she will go, and for the loss of enjoyment of the life which she had and which she cannot now continue to have. It is designed to compensate for all of those individual things, often too numerous to list, which fall within these general descriptions: Kerney v Mead & Anor [2011] NSWSC 518 at [148].
I accept the claimant’s evidence that prior to the accident she was an active, energetic, ambitious and outgoing person, who was “strongly engaged with her life”. I accept that she was very social, and had a wide circle of friends. I also accept her evidence that she particularly enjoyed gymnastics, and the complex physical challenges that this sport presented. I accept that prior to the accident she was training regularly, and could complete “aerials and flips” confidently.
The claimant suffered significant injuries in the accident and experiences ongoing pain and disability as a result of the injuries. Her neck and right shoulder injuries are the primary sources of the pain and suffering she experiences. She also suffered scarring, particularly to her right shoulder. The right shoulder scarring was obvious at the assessment conference, even at a distance.
The claimant has undergone surgery to her right shoulder on two occasions. She is a young woman with a life expectancy of a further 55 years.
I accept her evidence that she is no longer able to engage in the gymnastic work she enjoyed prior to the accident. This is particularly upsetting to her as gymnastics was, and remains, a passion of hers. I also accept her evidence that her injuries have had an adverse impact on her social life. She sees her friends much less often than she did prior to the accident. She attributes this to both pain and depression. Her driving tolerance is limited by pain.
The claimant submits that an award of $400,000 is appropriate for this head. The insurer argues that the award ought be in the order of $200,000. I find that a fair award for non-economic loss is $320,000.

Future economic loss

At the assessment conference the claimant put her case on the basis that the appropriate way to assess damages for future economic loss was by way of a buffer. The insurer submits that this is “clearly a buffer case”.
I am satisfied that this is a case in which the assessment of the claimant’s damages for future economic loss involves such a degree of speculation as to render a calculation by conventional techniques inappropriate. This is because the claimant is presently 31 years of age, was admitted as a lawyer in 2016, and was at the start of her legal career when the accident occurred. She was ambitious. It was possible that she would have improved and advanced her vocational position. She gave evidence, that I accept, that her intention was to find work as an in-house lawyer at an insurance company or a bank. I accept that, for the purposes of assessing her future economic loss, it was possible that she would have been successful in securing work as an in-house lawyer. I find that the experience she acquired while working at FRLC would have stood her in good stead in terms of obtaining such employment.
There is, of course, no certainty as to where the claimant’s vocational journey would have taken her. She may have thrived in an in-house role. She may have achieved promotions. She may have taken on leadership roles. She may have moved into a more commercial, as opposed to legal, role, in a financial institution. She may have returned to working in a community organisation.
I accept the claimant’s evidence that she suffers pain in her neck and right shoulder, and that her work exacerbates the pain. I find that her neck and right shoulder pain has given rise to, and will continue to give rise to, a loss of capacity to earn. I accept that she is exhausted after working for four hours. Her poor sleeping patterns, that are attributable to pain in her right shoulder, have an adverse impact on her work capacity. She is tired when she awakes. I accept Dr Mason’s opinion that while the restriction on her ability to work is largely due to pain it is also contributed to by her depression. I also accept that the opioid medication she is taking for her pain impacts on her work capacity in that it affects her judgement.
She is presently working 15 hours a week. Dr Davies expressed the opinion that the most likely outcome was for permanently restricted hours, in the vicinity of four to five hours a day, five days a week (20 - 25 hours a week). It is possible that her work capacity will increase over time up to this level.
Section 4.7 of the MAI Act must be addressed when assessing future economic loss, even in cases where a buffer is awarded: Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281at [30] per Barrett JA. The section is in the following terms:
“4.7 Future economic loss—claimant’s prospects and adjustments
(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
I find that the claimant’s most likely future circumstances but for the injuries she sustained in the accident were that she would have worked full time as a lawyer until age 67.
I have found that the claimant has a loss of capacity to earn that will continue to be productive of financial loss. I have determined that a fair award for this head of damages is a buffer in the sum of $475,000.

Assessment of damages summary

Under sub-s 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.
I assess the claim as follows on the findings set out above:
Non-Economic Loss   $320,000
Economic losses
·     Past loss of earnings  $155,000
·     past loss of superannuation  $16,340
·     s 4.5(1)(d) damages (Fox v Wood)   $17,000
·     future loss of earnings (buffer)   $475,000
Total Damages Assessed   $983,340
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, weekly payments of statutory benefits paid to the claimant. If this amount is not agreed, the parties have liberty to apply.

costs

The insurer is to pay the claimant’s costs and disbursements in accordance with the Regulations.
At the assessment conference the insurer raised an issue about the costs associated with the accountant’s reports. If this dispute, or any other dispute in relation to costs, cannot be resolved between the parties, they have liberty to apply.

[2023] NSWPIC 66

21 February 2023