Brown v AAI Limited t/as AAMI

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brown v AAI Limited t/as AAMI [2025] NSWPIC 103
CLAIMANT:	Kim Brown
INSURER:	AAI Limited trading as AAMI
MEMBER:	Terence Stern OAM
DATE OF DECISION:	21 March 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; the claimant was injured in a motor vehicle accident on 11 December 2020; the insurer wholly admitted liability for the claim; assessment of damages; claim for damages pursuant to section 7.36; non-economic and economic loss damages for physical and psychological injury; Division 4.2 applied; past economic loss; section 4.2 applied; Livingstone v Rawyards Coal Co applied; Medlin v State Government Insurance Commission applied; Husher v Husher applied; future economic loss; Nominal Defendant v Livaja applied; section 4.7 applied; non-economic loss; section 4.11; Hodgson v Crane applied; Planet Fisheries Pty Ltd v La Rosa applied; James Hardie & Co v Newton applied; Held – damages for past, future and non-economic loss assessed at $1,060,300.36; claimant’s costs assessed at $74,377.20 inclusive of GST.
DETERMINATIONS MADE:	CERTIFICATE 1. The insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury, loss and damage because of that breach of duty. 2. I assess damages in the amount of $1,060,300.36.

3.

STATEMENT OF REASONS

INTRODUCTION

The claimant, Kim Brown (Ms Brown).
At all material times, she was employed as a traffic controller, having commenced with a particular employer in October 2020.
Ms Brown was injured in a motor vehicle accident (the accident) on 11 December 2020.
Ms Brown made a claim for damages on the CTP insurer of the at-fault driver, AAI Limited ABN trading as AAMI (AAMI) under the Motor Accident Injuries Act 2017
(the MAI Act).
AAMI accepted liability for the claim on 5 February 2024. By admitting liability, AAMI accepted that:
(a)    the insured driver owed the claimant a duty of care;
(b)    the insured driver breached that duty of care, and
(c)    the claimant suffered some injury, loss or damage as a consequence of the insured's driver's breach of the duty owed.
A dispute has arisen as to the amount of damages to be assessed. Ms Brown has referred that dispute to the Personal Injury Commission (Commission) and it has been allocated to me.
The issues are:
(a)    the amount to be awarded for non-economic loss (NEL);
(b)    the amount for past-economic loss (PEL). In this respect, AAMI submits that a reasonable allowance for PEL is about $100,000 representing a total loss of income for six months after the accident and a partial loss from then until January 2023, when Ms Brown underwent what it contends an unrelated lumbar surgery and when, at about the same time, Ms Brown’s employer at the time of the accident ceased operations in Sydney, and
(c)    AAMI disputes the amount to be awarded for future-economic loss (FEL), submitting that a reasonable allowance is by way of buffer in the amount of $50,000.
The assessment conference took place on 6 December 2024. Ms Brown was represented by Robert Quickenden and AAMI was represented by Brendan Jones. At my request, the evidence at the assessment conference was transcribed, and the transcript was made available to the parties, having been loaded to Pathway and checked by me on or about
15 January 2025.
AAMI made further submissions on 5 December 2024 and Ms Brown made further submissions on 30 January 2025. Further, AAMI made further submissions on
13 February 2025 and Ms Brown made submissions in reply on 20 February 2025.

CLAIMANT’S EVIDENCE

Claim form dated 22 December 2020

In her Claim form, after noting the date of the accident as 11 December 2020 and the time as 4.40pm and giving a location of O’Connell Street, North Parramatta, opposite Bank West Stadium, Ms Brown stated:
“I was stationary at traffic lights with three or four cars stopped in front of me. Vehicle hit me from behind at some speed. Impact threw me forward then back. Where my bag and contents were all over floor, and phone damaged.”
Ms Brown listed her injuries as:
“left side of face;
Chest;
Neck and head;
Shoulders, arms; and
lower back”

Statement of Kim Brown – 22 October 2021

I briefly summarise this statement by reference to paragraph numbers:
[1] Employed by Civ Force Traffic as a traffic control officer.
[2] Commenced employment with Civ Force Traffic in October 2020.
[17] On way home from work, was involved in an Accident.

Further Statement of Kim Brown – 21 September 2022

I briefly summarise this statement by reference to paragraph numbers:
[5]Refers to severe and debilitating pain in her low-back since 11 December 2020.
[6]Was referred to Dr Kanawati about June 2021.
[7]Dr Kanawati recommended a steroid injection in her low back. Injection on 20 July 2021, MRI about a month later.
[8]Cortisone injection of little-to-no benefit.
[9]Dr Kanawati recommended a nerve root injection.
[10]Nerve root injection, felt some relief.
[11]About 2 months later, the effects of the cortisone injection wore off.
[12]Returned to see Dr Kanawati about 27 October 2021. He recommended surgery.
[13]3 November 2021 consulted Dr Suttor. He also recommended L5/S1 decompression and fusion surgery.
[14]4 November 2021, third cortisone injection.
[15]-[21] Refers to the examination by Dr Miniter. The consequences of the examination by
Dr Miniter; Admission to Westmead Hospital 21 July 2022.
[22]17 August 2022 iCare declined liability for surgery to the lower back.
[23]Refers to further report from Dr Miniter saying that Ms Brown was not a good candidate for surgery.
[24]Deeply aggrieved by iCare’s decision to decline surgery.
[25]Prior to Accident, was quite active and social. Now rarely leaves the house.
[26]Since the accident, lost all motivation.
[27]Life consumed with debilitating pain.
[28]Heavily reliant on pain medication.
[29]Loss of all quality of life. In a constant state of drowsiness.
[30]Relationship has broken down; unable to have sex due to constant pain.
[31]Pain has impacted sleep. Wakes up multiple times.
[32]Prior to the accident, was very independent. Now relies on her daughter and granddaughter.
[33]Ms Brown experiences pins and needles, especially when seated.
[34]Started to shift most of her weight onto her right-hand side when walking. Pins and needles radiate down her legs into her ankles. Worse on the left side.
[35]Uses a walking stick around the house to ease some of the pressure on the right-hand side.
[36]Has been unable to return to any meaningful work since the accident. Used to be passionate about her work.
[37]Suffers psychologically. Her injuries have kept her locked up at home; feels hopeless and useless.
[38]Hopes the surgery recommended by Dr Kanawati will restore some normality.

Supplementary Statement of Kim Brown - 7 December 2023

I briefly summarise the Statement of Ms Brown by reference to paragraph numbers:
[8]Refers to the accident.
[9]Stationary at traffic lights when a vehicle rear-ended her at high speed.
[10]Police did not attend.
[11]Ambulance did not attend.
[12]Fire brigade attended the accident.
[13]Drove straight home. Remembered feeling sore.
[14]Was in a lot of pain all over her body, including neck, right leg, low back, and face.
[15]Drove to work the next day then came home; could not lift her arms nor move her neck.
[19]Was wearing a seatbelt.
[20]Contains particulars of the alleged injuries as listed (a)-(h).
[21]Contains particulars of alleged disabilities and restrictions as listed (a)-(g).
[22]Before the accident, was very active.
[23]Used to go dancing. Can no longer wear high heels.
[24]Used to meet friends. Is now home-bound. In the preceding three years of the date of the Statement, she had gone out with friends for lunch about twice. Her social activities are almost non-existent; feels extremely lonely and often depressed.
[25]Was in a relationship; inability to engage in sexual relations; parted ways; now single.
[26]Issues with sleep.
[27]Following the accident, was in shock. Did not go to the hospital immediately; did not realise the extent of the pain she was actually in.
[28]On 15 December 2022, her sister-in-law took her to Westmead Hospital Emergency Department. She was feeling excruciating pain.
[29]Following discharge from Westmead, saw Dr Mark Lim.
[31]Was told by her optometrist that she had lost 50% of vision in her left eye.
[32]Saw Dr Helene Cass at Marsden Eye Specialists, MRI did not reveal any fracture or hematoma.
[34]On 23 January 2023 had a lumbar double fusion at Westmead Hospital. In hospital for about 10-11 days.
[35]Physiotherapy started in early May 2023. To the date of this Statement, about 24 sessions.
[36]Has attended a psychologist – 18 consultations.
[37]Lists medications from.
[38]Lists side-effects of medications.

[39]-[40] Lists Treatment providers.
[41]-[44] Lists previous injuries and medical conditions.
[49]Was employed as a traffic controller by Civ Force Traffic, had been employed by them since October 2020.
[50]Prior, was working with a different employer in the same traffic control area. Had been employed for about 11 years.
[51]Lists her duties as a traffic controller.
[52]Normally worked 35 hours per week plus overtime. Was paid $1,396.19 net per week.
[53]Tried to go back to work as the doctors were saying that there was nothing wrong with her. She lasted one-and-a-half days and returned home. Her duties were sitting on a chair and operating a boom gate. She has not worked since the date of the accident. Her employment with Civ Force Traffic was terminated recently.
[54]Had intended to work as a traffic controller until age 70 but is unable to do so because of her injuries.

Further Statement of Kim Brown – 13 May 2024

I briefly summarise this statement by reference to paragraph numbers:
[8]11 December 2020 at about 4.40pm, involved in the accident on O’Connell Street opposite Bank West Stadium in North Parramatta.
[9]Stationary at traffic lights; rear-ended at high speed.
[10]Police did not attend.
[11]No ambulance.
[13]Drove home after the accident; remembers feeling sore.
[14]Woke up the next day with pain all over her body, including pain in neck, right leg, low back, and face.
[15]Drove to work the next day then came home; could not lift her arms or move her neck.
[18]Was not on any medication at the time of the accident.
[19]Was wearing her seatbelt.
[20]Contains particulars of the alleged injuries as listed (a)-(h).
[21]Contains particulars of alleged disabilities and restrictions as listed (a)-(g).
[22]Before the accident, was very active. Accident injuries have slowed her down significantly.
[23]Was actively involved with her grandchildren in recreational activities. Used to have her grandchildren every school holiday and was very active with them. Can no longer manage to be active with her young grandchildren.
[24]Used to go dancing. Can no longer wear high heels.
[25]Due to injuries and pain, now homebound. In the preceding 3 years of the Statement, had gone out with friends to lunch twice.
[26]Significant weight gain.
[27]Relationship of 2.5 years prior to the Accident, about 3 weeks before the accident they took a break from the relationship with the intention of getting back together. Reconciled after the accident but due to difficulties (accident-related) with sex, parted ways. Ms Brown is single.
[28]Issues with sleep.
[29]Helplessness and loss of self-worth.
[30]After the accident, did not go to hospital because she was in shock and did not realise the extent of her pain.
[31]The day after the accident she started to experience pain. On 15 December 2022, her sister-in-law took her to Westmead Hospital Emergency Department. She was feeling excruciating pain.
[32]Following discharge from Westmead Hospital, saw her general practitioner (GP)
Dr Mark Lim. He provided Certificates of Capacity.
[33]Shortly after the accident, attended an optometrist as she continued to have pain in her left eye. The optometrist advised that she had lost 50% vision of the left eye.
[34]Attended an ophthalmologist, Dr Cass. She recommended an MRI scan. The MRI did not show any fractures or haematoma.
[35]Also attended orthopaedic surgeon Dr Kanawati.
[36]On 23 January 2023, had a lumbar fusion at Westmead Hospital. She was in hospital for 10-11 days.
[37]Attended physiotherapy at My Health Merrylands. To the date of this Statement, had had 24 sessions.
[38]Workers Compensation Insurer covered the cost of the physiotherapy.
[39]Attended a psychologist for counselling. Did not feel that the counselling helped.
[40]Attended Hassan Qureshi from Exercise Physiology, Wentworthville.
[41]Has “been required to take”:
(a)    Amitriptyline 10mg twice a day;
(b)    Lyrica 50mg - three times per day;
(c)    Palexia 50 mg six time per day (Stopped taking it in three weeks ago);
(d)    Panadol - as required;
(e)    Panadeine - as required;
(f)    Tapendatol 50mg four times per day;
(g)    Tramadol 50mg three times a day, and
(h)    Gabapentin 300ml two times per day.
[42]The medications caused side effects (as listed)
[43]Lists her specialists: -
(i)Orthopaedic surgeon - Dr Andrew Kanawati;
(ii)Neurologist Dr Grant L Walker;
(iii)Pain Specialist Dr Tze Chow Chow;
(iv)Physiology - Hassan Qureshi, and
(v)Psychologist Dr Alfred De Robillard.
[44]Had chronic obstructive pulmonary disease in the left lung from smoking.
[45]43 years before the accident, injured her left ankle tendon. Had surgery. No symptoms before the Accident.
[46]No prior claim for compensation.
[47]Had been attending Dr Lim for 5 years prior to the accident.
Economic loss
[48]Moved to Australia in 1986.
[51]Straight after leaving school, started working in traffic control, gaining qualifications and 11 years experience.
[52]Lists qualifications she obtained in about 2013. She renewed them about every 2 years.
[53]Five years before the accident, was employed as a traffic control supervisor at Roadwork Solutions Pty Ltd. Lists her duties and her hours per week. Her salary varied according to the hours worked, approximately between $1,800 and $2,500 per week. Left the job as she found a better opportunity at Civforce.
[54]Worked as a traffic controller for Civforce from October 2020 up until the date of the accident.
[55]Sets out her usual routine and duties.
[57]At Civforce, normally worked 38 hours per week plus overtime and was paid $1,396.19 net per week.
[58]After the accident, because of her injuries, was unable to return to work.
[59]Tried to get back to work, but lasted one-and-a-half days. Could not withstand the physical duties. Even with adjustments to her work duties (sitting at the boom gate operating the boom gate) did not work because she could not sit for prolonged periods.
[60]Her work with Civforce was terminated shortly before she made the Statement.
[61]Had no plans of retiring. Believed she would have been able to work well into her seventies.

Evidence taken at the assessment conference

The evidence taken at the assessment conference is contained in a transcript of 101 pages. It would not be productive to go through the transcript in an attempt to isolate those parts relevant to my decision. Rather, I will generally refer to only those parts of it as are referred to in the submissions.
I will, however, refer to those general questions put by Mr Quickenden.
Ms Brown confirmed that she had read the chronology and that it was correct to the best of her knowledge (her answer was not transcribed, but it was ‘yes’ or words to that effect).
Mr Quickenden asked Ms Brown whether she had looked for any work recently, and she said that she had – through the Worker’s Compensation Insurer – but had not been successful.
Ms Brown told Mr Quickenden that she could not do her old job as a traffic controller.
She told him that her primary concern about her health at the moment was the neck, the low back, the left leg and her shoulder.
Ms Brown was asked about her medications and explained how they affected her in terms of drowsiness. Tramadol, and Palexia in particular, made her drowsy, and she only took them before she went to sleep.

COLLISION AND BIOMECHANICS REPORT OF ANDREW MCINTOSH (PHD) DATED 9 SEPTEMBER 2024

Moray & Agnew commissioned a report from Mr McIntosh with a review to demonstrating whether the injuries claimed by Ms Brown were consistent with the nature and consequences of the accident. Mr McIntosh was asked to comment particularly on the likelihood of the speed and forces involved in the accident being capable of causing the physical injuries to Ms Brown, but particularly the lumbar spine injury.
Mr McIntosh examined the crash characteristics in section 5 of his report. He listed the characteristics as follows:
[1]Rear end collision.
[2]Small overlap, in-line and with ‘under-run’ characteristics.
[3]The front offside corner of vehicle 1 collided with the nearside corner of the tray on vehicle 2. A narrow section of the offside of vehicle 1 went under the rear tray and the tray or similar area collided with the windscreen.
[4]Vehicle 1 was travelling at a low speed when the collision occurred and braking.
[5]Vehicle 2 was stationary when the collision occurred.
He set out his opinion at [48]:
“[48] In my opinion, based on the Incident descriptions, absence of airbag deployment in vehicle 1 and observed and described vehicle damage, the closing speed was most likely in the range of approximately 10 to 20 km/h with a change in velocity of the Claimant’s vehicle in the range of approximately 6 to 12 km/h. Closing speeds greater than approximately 20 km/h, would have been associated with airbag deployment in vehicle 1.”
He continued at [49]:
“[49] My opinion is based on my training and experience, including experience in studying and examining collisions, reviewing crash cases and vehicle damage, comparing vehicle damage to vehicle recorded crash data, participating in vehicle crash testing (components and full tests), and reviewing crash test data.”
Mr McIntosh concluded at [106]:
“[106] …there is a very low likelihood of the speed and forces involved in the subject accident being capable of causing the physical injuries alleged by the Claimant in total, in particular the lumbar spine injury requiring surgery.”
He continued at [109]:
“[109] …it is plausible that the biomechanical forces acting on the Claimant in the subject accident were capable of causing:
1. Cervical spine (neck) – whiplash associated disorder / soft tissue injury / symptomatic aggravation of a pre-existing musculoskeletal disorder (MSD).
2. Lumbar spine (low back) – symptomatic aggravation of a preexisting musculoskeletal disorder (MSD).”
He took the view at [110] that:
“[110] …it is unlikely that the biomechanical forces acting on the Claimant in the subject accident were capable of causing:
3.     Head and facial injury – brain injury (concussion / mTBI / other), superficial facial injuries (lacerations and swelling).
4.     Cervical spine (neck) – structural injury, e.g intervertebral disc injury or bony injury (crushed C1 and C3).
5.     Lumbar spine (low back) –soft tissue injury / sprain-strain injury.
6.     Lumbar spine (low back) – structural injury, e.g intervertebral disc injury
7.     Chest bruising.
8.     Shoulder - soft tissue injury / sprain-strain / rotator cuff disorder.”

He estimated the crash severity and took the view that it was plausible that Ms Brown’s pre-existing cervical spine MSD (musculo-skeletal disorder) would have made her vulnerable to biomechanical forces.
With respect to the thoraco-lumbar spine, on the contrary, he set out at [115]:
“[115] The thoracolumbar spine would have been very well-supported by the seat in the collision. Loads applied to the thoraco-lumbar spine in the collision would have been very low magnitude and unlikely to cause injury. The likely change in velocity of the Claimant’s vehicle is less than recognised and well documented thresholds for the onset of thoracolumbar spine injury in rear end motor vehicle collisions. Thoracolumbar spine intervertebral disc or structural injury is very unlikely. Figure 17 shows that less than 10% of occupants in a rear end collision of similar severity as the Incident will experience an acute thoracic or lumbar strain.”
Mr McIntosh thought, however, that it was plausible that the accident aggravated symptoms of pre-existing spinal condition. He stated at [116]:
“[116] …Biomechanical forces acting on the lumbar spine during the Incident would have been similar to those that the Claimant would have experienced at work and home”
In his conclusions at [123], Mr McIntosh stated at [5]:
“(5) There is a very low likelihood of the speed and forces involved in the subject accident being capable of causing the physical injuries alleged by the Claimant, in particular the lumbar spine injury requiring surgery.”
Further, at [7] he concluded that:
“(7)    It is unlikely that the biomechanical forces acting on the Claimant in the subject accident were capable of causing:
(a)    head and facial injury – brain injury (concussion/mTBI/other), superficial facial injuries (lacerations and swelling);
(b)    cervical spine (neck) – structural injury, e.g intervertebral disc injury or bony injury (crushed C1 and C3);
(c)    lumbar spine (low back) – soft tissue injury / sprain strain injury;
(d)    lumbar spine (low back) – structural injury, e.g intervertebral disc injury;
(e)    chest bruising, and
(f)    shoulder - soft tissue injury / sprain-strain / rotator cuff disorder.”

MEDICAL EVIDENCE

Consulting notes of Dr Mark Lim general Practitioner – 6 August 2022

Dr Mark Lim, GP, recorded the following notes for a visit on 6 August 2022.
Imaging studies showed Mild greater troch bursitis and mild bilateral hip OA; MRl of August 2022 showed multilevel spondylitic change; L5 /S1 disc extending into foramen mild, distorting under surface of both exiting nerve roots either of which may be irritated.
“The main difference between the current scan and previous scan appears to be that at the LS/s 1 there was radiology comment of clear distortion of exiting L greater than R LS nerve roots in 3/2021 whereas in the more recent scan distorts undersurface of both exiting nerve roots either of which maybe irritated. (I.e. previously implied L greater than R, currently somewhat symmetrical).
The latest symptom is worsening of R sided symptoms occurring after what Kim felt was a very aggressive manipulation by the independent specialist. Kim again recounting her story .... ‘He just yanked me off the bench. I thought he was giving me his hand to help me sit up so I could get off the bench. I was crying at that stage, I was in agony, then he carried on abusing me look at the state of you, you are unfit and your teeth are terrible. I am done, I do not know what to do. The pain he left me in ......’
Will need to see Dr Kanawati for further comment.
Kim and I cannot understand why the insurer has so many issues with approving surgery. Hopefully this will be approved shortly so that Kim can have a chance of having her symptoms and life significantly improved.”

Report of Dr Helene Cass, Ophthalmologist - 6 January 2021

Dr Helene Cass, Ophthalmologist, reported to Dr Lim on 6 January 2021.
Dr Cass noted the history of severe, sharp pain around and in her left eye over the preceding three weeks; had hit her forehead hard on the steering wheel. CT scan at the hospital was normal.
Dr Cass reported that the most likely cause of the head and ocular pain was referred pain coming up from the neck. Because of the visual field changes recommended an MRI scan of the visual pathways (brain and orbits). Noted that if investigation of any neck injury is required then Ms Brown may need neck imaging, which is best ordered by a doctor with expertise in that area.

Report of Dr John O’Rourke, Radiologist – 6 March 2021

Dr John O’Rourke, Radiologist, reported on 6 March 2021 mild spondylitic changes with disc extension particularly into left L5/S1 foramen with clear distortion of the exiting left nerve root. No evidence of sacroiliitis.

MRI Lumbar by Dr Samer Ghattas – 24 August 2021

Concluding multilevel spondylitic changes with probable irritation of the exiting left L5 nerve root and potential irritation of the exiting right L5 nerve root. Synovial enhancement at bilateral L5/S1 facet joints likely reflects osteoarthritis.

MRI Lumbosacral by Dr John O’Rourke – 3 August 2022

Multilevel spondylitic changes. At L5/S1, disc clearly seen to extend into the foramen mildly distorting the undersurface of the exiting L5 nerve roots. No prior imaging for correlation. No MRI evidence of significant central canal or foraminal stenosis at any other level.

Reports of Dr Kanawati to the claimant’s solicitor – multiple dates

Dr Kanawati refers to Ms Brown being very upset because she had a very bad experience with Dr Miniter, who alleged that the history-taking by him and his examination techniques were very unprofessional, and she felt quite demeaned during the whole conversation. He is alleged to have been very rude and dismissive.
Dr Kanawati noted that Dr Miniter was a hip, knee, foot and ankle surgeon who did not specialise in any spinal conditions.
In a report of 4 October 2022, Dr Kanawati deals with the mechanism of the injury:
“Kim describes being a restrained driver and was struck from the left rear side by another car. I would describe the mechanism as high energy as the car that struck her caused her car to elevate in the air above the bonnet that struck her. I note that the opinion of Paul Miniter is that he believes that the energy involved was low and Kim's symptoms are not consistent with the mechanism of injury. I think this is incorrect and the high-energy nature of this accident I certainly consistent with the severity of Kim's symptoms.”
In a report of 4 October 2022, Dr Kanawati stated:
“To my knowledge, Kim has not complained of prior episodes of lower back pain or radicular pain. Despite the medical imaging showing some spondylitic changes, this injury is certainly a severe new condition which is an exacerbation of what seems like preexisting spondylitic changes. The symptoms that Kim has been complaining of since the accident are definitely related to the accident directly and were not present prior to the injury and I suspect that if Kim had not had this injury, she would have remained asymptomatic.”
Dr Kanawati, in his report of 4 October 2022, continued:
“I think I think Dr Miniter's report is very disappointing, highly biased and quite frankly inaccurate. It seems that Dr Miniter made an early opinion of Kim based on her appearance and smoking status, and his judgemental report is reflective of this… Overall, I believe that his assessment is inaccurate, in some places incorrect, judgemental and inconsistent with my experiences with this patient.”
In a Medicolegal report to the insurer’s solicitor of 25 September 2024, Dr Kanawati stated that the most significant injury in the accident appears to have been to her cervical spine, where she sustained a soft tissue injury and aggravated underlying spondylosis.

MRI Cervical by Dr Ankar Srivastava– 13 October 2022

Moderate right C4/5 and left C6/7 neural exit foramen narrowing with mild impingement of the exiting right CS and left C7 nerve roots. Mild-moderate left C4/5 neural exit foramen narrowing with potential for irritation of the exiting left CS nerve root.

Report of Dr Chow Chow, pain specialist – 22 February 2024

Ms Brown’s GP, Dr Mark Lim, referred Ms Brown to a pain specialist, Dr Chow Chow,
who reported back on 22 February 2024. He diagnosed:
(a)    chronic post traumatic cervical and back pain;
(b)    cervical and lumbar spondylosis;
(c)    whiplash associated syndrome;
(d)    previous L5/S1 posterior fusion;
(e)    chronic neuropathic pain;
(f)    chronic secondary musculoskeletal pain; and
(g)    post-traumatic stress disorder.
Dr Chow Chow described the issues as:
(a)    high pain interference;
(b)    maladaptive pain cognition with Pain catastrophising and low self-efficacy, and
(c)    Previously worked as supervisor in a traffic control.
He prescribed Palexia 50mg four times a day (Palexia/Tapentadol is an opioid based pain relief medicine).
He described the MRI cervical spine of October 2022 as showing foraminal narrowing with impingement on the exiting nerve roots.
He referred to an MRI lumbar spine of September 2023 as showing posterior decompression and spinal fusion with vertical pedicle screws and spacers at L5-S1, marrow oedema, and moderate multilevel spondylosis.
Under History, he states:
“Kim Brown has been experiencing significant and problematic pain following a vehicle accident. She has undergone L5/S1 decompression and fusion surgery performed by Dr. Kanawati, who noted C2/3 anterolisthesis and foraminal narrowing of the exiting C3 nerve root. Despite a nerve block injection, Kim unfortunately developed shingles post-procedure.
The accident has had a profound impact on Kim's life, leading to severe psychological distress, including symptoms of PTSD, adjustment disorder, and high pain interference with her daily activities. She has a history of working in traffic control, which she cannot return to due to her injuries and resulting pain. Kim's family, including her stepson David and her daughters, have been supportive throughout her treatment and recovery process.
Kim continues to experience pain, rated at 8 out of 10, with significant impact on her sleep and quality of life. She suffers from fatigue, memory loss, headaches, and vision changes since the accident. Her treatment regimen includes ongoing physiotherapy, psychological support, and medication management, with an emphasis on exploring non-addictive pain relief options.”

Dr Grant Walker, treating neurologist – 11 April 2023 and 9 August 2023

Dr Walker reported to the GP on 11 April 2023.
He noted that Ms Brown currently walks with a walking stick because of her back pain and poor balance; neck pain which radiates into the neck shoulder and up behind her left ear. Currently takes Palexia, 50mg 1, twice a day, Panadeine Forte three or four times per day; used to take higher dose of Palexia and also Lyrica, but got side effects.
Dr Walker reported again on 9 August 2023 ongoing localised back pain; happy that she had L5/S1 fusion in January; has neck pain radiating into her left arm. MRI from October 2022 showed multilevel degenerative disease.
Report that the left C3 nerve root might be causing the problems so she had a perineural steroid injection. Complaints of poor balance. Had her Palexia stopped; caused her pain to be worse. Commencing her on Cymbalta was a good idea; strongly support her going back on Palexia.

Dr Andrew Porteous, occupational physician – 7 May 2024

Dr Andrew Porteous, occupational physician, reported on 7 May 2024 to Ms Brown’s solicitor that Ms Brown has longstanding chronic cervical and lumbar pain with associated limb symptoms of a significant degree causing marked restriction.
She was using narcotic medication on average twice a day which for health and safety reasons would mean that she was unfit to work on any commercial worksite and, particularly, unfit to be in contact or close to vehicles of any type. That would make her totally unfit for work on its own.
She was restricted from frequent or constant walking, standing, sitting, bending, neck rotation, lifting, pushing, pulling, carrying, kneeling and crouching.
Her chronic pain was at 10+/10 frequently, which on its own would incapacitate someone from all work.
Dr Porteous considered that she was totally incapacitated from her pre-accident occupation and would be for the foreseeable future,
Dr Porteous was of the opinion that Ms Brown aggravated or exacerbated pre-existing age related degenerative changes to the cervical and lumbar spine and with a degree of radicular pain.
He did not offer any opinion as to the process by which the aggravation occurred.
In a supplementary report of 7 May 2024, Dr Porteous stated that there was no evidence of pre-existing injuries although Ms Brown was more likely than not to have had underlying degenerative change which was asymptomatic. He was not asked to describe the process by which (if being the case) the accident caused the condition to become symptomatic.
In a further report of 7 May 2024, Dr Porteous assessed a 30% WPI.

Report of Dr Bodel to Gerard Malouf & Partners – 27 September 2023

Dr Bodel, having read all of the material of Associate Professor Miniter, was of the opinion that:
“… this claimant clearly does have significant pathology in the lower part of the back and significant sciatic nerve root irritation in the left leg which warrants the surgery as proposed.”
Further, Dr Bodel, in answer to Specific Questions, at [2] stated that he was satisfied the effect of the accident has caused, at the very least, the aggravation, acceleration, exacerbation and deterioration of a disease process being the degenerative disc disease at the lumbosacral junction involving L5/S1 in particular.
At [6], Dr Bodel stated:
“I am satisfied that the proposed surgery from two reputable surgeons … is reasonably necessary treatment to manage the mechanical disc pathology and the left-sided sciatica that occurred as a result of the motor vehicle accident ….”

Report of Dr Murray Hyde Page for Moray and Agnew for the CTP Insurer – 3 April 2024

Dr Murray Hyde Page, orthopaedic surgeon, reported to Moray & Agnew on 3 April 2024.
Dr Hyde Page described Ms Brown’s most significant injury as having been to her cervical spine where she suffered a soft tissue injury and aggravated underlying cervical spondylosis. Associated with this, she developed chronic neck pain and stiffness, as well as stiffness in both shoulders.
He was of the opinion that her ongoing complaints were out of proportion to the severity of the accident, which was only a very low speed rear-end collision. She was able to drive the ute away from the scene of the Accident. No airbags went off.
On examination, Ms Brown had some stiffness in the cervical spine with dysmetria but no radiculopathy. She had stiffness in both shoulders and lumbar spine, and her lower limbs the only positive finding for radiculopathy was an absent left ankle reflex.
Dr Hyde Page diagnosed a soft tissue injury to the cervical spine, aggravating underlying cervical spondylosis.
She only suffered a soft tissue injury to the lumbar spine and the spinal fusion and decompression at L5/S1 appears to have been for a preexisting degenerative condition.
In her lumbar spine, she already had significant lumbar spondylosis, particularly at L5/S1. The need for the lumbar fusion and decompression was a consequence of this pre-existing condition.
He continued, by referring to the extensive report of Andrew McIntosh, PhD., that at [5]:
“there was a very low likelihood of the speed and forces involved in the accident being capable of causing physical injuries alleged by Ms Brown, and in particular, the lumbar spine requiring surgery”
and [6]:
“it is plausible that the biomechanical forces acting on the claimant…were capable of causing:
(a) cervical spine (neck) – whiplash associated disorder / soft tissue injury / symptomatic aggravation of a preexisting musculoskeletal disorder (MSD), and
(b) lumbar spine (low back) – symptomatic aggravation of a pre-existing musculoskeletal disorder (MSD).”
Dr Hyde Page noted in his opinion that the accident had aggravated the underlying cervical spondylosis and that she had only suffered a soft tissue injury to the lumbar spine in the accident.
Dr Hyde Page commented that Dr McIntosh was not a medical practitioner, and made his conclusions based on biomechanical and ergonomic principles, but he was unable to take into account the medical issues involved, and specifically that Ms Brown had pre-existing cervical degenerative disc disease, or advanced cervical spondylosis that was pre-existent on the scans at the time of the accident.
This was where Dr Hyde Page’s experience as a medical practitioner was important, as it was obvious that the low speed rear-end accident had aggravated the pre-existent condition, where the aggravation had never ceased. To put this in a different way, if she did not already have significant advanced degenerative disc disease at the cervical spine, it was likely that she would have made a good recovery.
He then took into account the Nguyen Principle, that significant cervical spinal injury can result in significant stiffness in the shoulders, and this had happened in this case.
Dr Hyde Page remained of the view that the subsequent spinal surgery was unrelated, and he concluded at [2] that on the balance of probabilities, the low-speed rear-end accident did cause the injury to the cervical spine and remained of the view that the lumbar spine decompression and fusion of L5 was due to the pre-existent degenerative condition and the low-speed accident only caused a soft tissue injury to the lumbar spine that would not have necessitated the surgery.
At paragraph [4] he was of the opinion that the degenerative condition of the lumbar spine would have become symptomatic at some point, irrespective of the accident and she would therefore have needed surgery. The lumbar spine did not become significantly symptomatic until some time after the accident when she also developed sciatica. She did not see a spinal surgeon regarding her lumbar spine until a couple of years after the accident, where she subsequently had the decompression and fusion at L5/S1.

Report of Medical Assessor Cameron of 19 August 2022

Medical Assessor Ian Cameron, assessing the medical dispute, diagnosed soft tissue injuries to the cervical spine and concluded that she possibly could have had soft tissue injuries to other parts of her body, including her head and shoulders and lower back. His formal conclusion was that the soft tissue injury to her lumbar spine and cervical spine was caused by the accident.
In respect of the lumbar spine, the Medical Assessor said that the injury to the lumbar spine is a subject of the motor vehicle accident, and was a soft tissue injury. She had degenerative lumbar spinal disease that subsequently (and unrelated to the accident) deteriorated and caused radiculopathy.

Report of Medical Assessor Friend of 18 February 2023

Medical Assessor Paul Friend assessed minor injury and permanent impairment (psychological) on 9 February 2023 and certified on 18 February 2023 that Ms Brown has suffered a major depressive disorder as a result of the accident and it was not a minor injury.
Medical Assessor Friend undertook a clinical examination of Ms Brown’s mental state:
“Ms Brown was examined by video teleconference. She was generally distressed, struggled to provide an account of her symptoms, especially psychiatric/psychological symptoms, and did not appear to understand the importance of providing an accurate and complete account of her symptoms.
She was overly focussed on her pain even though she was repeatedly asked about psychiatric/ psychological symptoms. She had to be repeatedly asked clarifying questions to obtain the account outlined above.
Ms Brown described ongoing pain in the lower back which radiated into both legs, on the right to the knee and on the left to the back of the calf. She had pain in the left shoulder which came up to the neck, behind her left ear and across the eyebrows. She had a pulsating sensation in her head.
She described feeling overwhelmed, depressed, having thoughts of dying and suicide and seeing the future as hopeless. She had no energy or motivation and was very distressed by the change in her life and circumstances. She felt that her life had stopped and she was not able to move on in her life. She was aghast at the loss of her physical abilities both at work and at home. She felt that she was no good to anybody and no one would want her in the future.”

Medical Assessor Friend proceeded to take a history of current functioning:
“Ms Brown described her sleep as poor. She has difficulty getting to sleep and wakes up during the night. It is difficult to get out of bed because of the pain from her back, such that she needs to slide out of the bed sideways. She can be incontinent of urine, if she gets up during the night, not being able to get to the toilet in time. She is very upset that she has three large scars on her back and 30 staples from the surgery. She was expecting to have one small scar. She cries herself to sleep and wakes up crying and feeling fatigued. She nonetheless showers every day and wears clean clothes and underwear every day. One of her daughters has purchased a shower chair for her and her daughters, who visit her, have changed the dressings on her back.
She is able to put bread in the toaster and to make tea for breakfast. Friends are cooking for her. Her granddaughter and a friend buy her groceries and also do her laundry and cleaning of her apartment.
These activities are limited by pain and her psychiatric/psychological symptoms.
Prior to the motor accident Ms Brown had an active social life going out with friends, seeing her children and attending Christmas parties and family functions.
Since the motor accident she has been out socially to a local park with a friend to have lunch on two occasions. She feels incapable of doing any more.
She avoided driving for 3-4 months following the motor accident because of the pain and feeling too scared. She can now drive to consult her doctor, which is five minutes’ drive and the Dr Kanawati who is a similar distance away. She cannot drive to visit her daughters because they live much further away. She is always fearful and scared and looks around her when driving. She describes herself as very anxious, has lost her confidence and generally fearful of a further motor accident. She brakes very readily if she sees something potentially dangerous. She feels particularly fearful if she is stationary at traffic lights or a stop sign and looks repeatedly behind her.
She repeatedly tells the driver to slow down and not to be too close to the vehicles in front or beside them, when travelling as a passenger.
Ms Brown has lost contact with many of her friends. Her daughters telephone her every day and her son telephones her, less frequently. She has contact with two friends. She sees her granddaughter infrequently.
Ms Brown has a poor memory and is forgetful. She repeatedly tells her children that she is not confident that she remembers things correctly.
Ms Brown finds it difficult to read and write because of difficulty with concentration. As note above Her vision had returned to normal by 3 February 2021.
She avoids watching news reports of motor accidents feeling that they remind her of her accident.
She struggles to remember what she watches on television and is not confident she remembers everything correctly.
Ms Brown made two unsuccessful attempts to return to work and has not made further attempts to return to work. She is physically and mentally inactive. She spends most of the day at home sitting. Her weight has increased. She has increased a dress size 8 to a dress size 14.”
The Medical Assessor found that Ms Brown reached the criteria for a diagnosis of major depressive disorder from injuries sustained in the accident.
He set out the criteria as follows:
“She feels depressed every day and feels sad, tearful, hopeless and that her life is completely changed.
She has loss of interest and pleasure in all activities.
She has sleep disturbance. She has a loss of energy and motivation. She feels worthless and useless to anybody and that no one would want to have anything to do with her.
She has difficulty concentrating and is forgetful.
She has recurrent thoughts of suicide and dying but has not actually formulated a plan although at times she has thought about overdosing.
These symptoms cause distress and impairment in her day-to-day functioning and have contributed to her not returning to work, in addition to adversely impacting on her social functioning.
These symptoms are not attributable to the physiological effects of a substance or another medical condition and not better explained by another psychiatric condition.
She has never had a manic or hypomanic episode.”
Medical Assessor Friend then dealt with causation and reasons at [19]:
“Ms Brown was fit and active, working full time and in a relationship at the time of the motor accident.
She has been unable to sustain a return to work principally because of pain but also because of the psychiatric/psychological symptoms.
She has not been involved in any subsequent motor accident and has not suffered any other injuries or significant illnesses unrelated to the motor accident.
There is no other cause for her current symptoms and diagnosis of Major Depressive Disorder.”

Report of Associate Professor Paul Miniter, orthopaedic surgeon – 28 July 2022

Reporting to the Worker’s Compensation Insurer on 28 July 2022, A/Prof Paul Miniter, orthopaedic surgeon, was of the opinion that a rear-end collision of this nature should not be responsible for an acute disc prolapse in the lumbar spine. He was not able to identify clinical diagnosis to explain her presentation, nor did he believe that the diagnosis was consistent with the report of mechanism of injury.
In the second report of 18 August 2022, A/Prof Miniter noted that the accident had been of low velocity.

Vocational assessment of Erin Simpson, rehabilitation consultant – 7 December 2023

Erin Simpson made an objective evaluation as to “for the workers compensation insurer with a diagnosis of “widespread” musculoskeletal including whiplash, anxiety, post-Accident lumbar back L5 nerve root impingement.”
She concluded in her executive summary that Ms Brown had sustained a workplace injury working as a traffic controller with Civ Force.
In a vocational assessment done on 27 September 2023, where vocational options were found to be suitable employment for Ms Brown:
(a) customer service, and
(b) sales assistant.

SUBMISSIONS

Claimant’s further submissions of 14 November 2024

I briefly summarise submissions for Ms Brown of 14 November 2024:
[1]Submits that liability for common law damages was accepted by AAMI on 5 February 2024.
[2]Dr. Andrew Porteous’ report of 7 May 2024 confirms Ms Brown underwent a posterior L5/S1 fusion on 23 January 2023 but continued to experience significant right knee pain, left leg pain, and chronic cervical and lumbar pain with marked restriction.
[3]Dr Porteous assessed Ms Brown’s WPI at 30%.
[4]AAMI submits that their commissioned report from Dr. Murray Hyde Page of 3 April 2024 found cervical and lumbar spine stiffness, dysmetria, and absent left ankle reflex suggestive of radiculopathy.
[5]Dr. Hyde Page assessed Ms Brown’s WPI at 14%.
[6]Ms Brown submits that a letter from AAMI dated 24 April 2024 confirms the insurer concedes that her permanent impairment exceeds 10%.
[7]Ms Brown submits a claim for non-economic loss in the amount of $445,000.00.
[8]Ms Brown had not returned to work since the accident.
[9]Ms Brown had been employed with Civ Force Traffic from October 2020 until the Accident of 11 December 2020.
[10]Ms Brown submits that her salary in this role was $50,467.04.
[11]The letter from Civ Force dated 10 January 2023 confirms Ms Brown was formally terminated from her position.
[12]Ms Brown’s Notice of Assessment for the year 2020 recorded a taxable income of $90,737.00 ($69,667.30 nett yearly = $1,339.80 net per week).
[13]Ms Brown submits a claim for past-economic loss is made in full from the date of accident, 11 December 2020 to 11 December 2024:
•         $1,339.80 nett per week x 4 years, ie 200 weeks = $278,678.40.
•         Past loss of superannuation: $278,678.40 x 11.5% = $32,048.01.
•         Past loss of long service leave entitlements: 4 weeks x $1,339.80= $5,359.20
$316,085.61 + Fox v Wood
[14]In her Submissions, Ms Brown sets out a claim for Future Economic Loss: -
·        $1,600 nett per week x 345.8 (5% multiplier) = $553,280.00.
·        Future Loss of Superannuation: $553,280.00 x 13.5% = $74,692.80.
·        Loss of 1- year long service leave: 10 weeks x $1,600.00: $16,000.00.
·        No deduction is made for vicissitudes in light of the claimant’s age.
$643,972.80.

Insurer’s Submissions of 21 November 2024

I briefly summarise AAMI’s Submissions of 21 November 2024 with reference to paragraph numbers:
[1]At all relevant times, the Insurer was AAMI.
[2]The claim falls within the provisions of the MAI Act.
[3]Ms Brown, a 65-year-old female, was involved in a rear-end collision on
11 December 2020.
[4]AAMI sets out the injuries alleged by Ms Brown.
[5]She underwent an L5/S1 decompression and lumbar fusion in January 2023, but AAMI declined coverage for the surgery in September 2022.
[6]Ms Brown has received workers compensation statutory weekly payments.
[7]Liability was admitted by AAMI.
[8]Medical Assessor Friend determined Ms Brown’s psychiatric injury to be a non-threshold injury, and as such she is entitled to damages pursuant to s 4.4 of the MAI Act.
[9]AAMI conceded that Ms Brown’s WPI is greater than 10% and is therefore entitled to damages for non-economic loss pursuant to s 4.11 of the MAI Act.

[10]-[12] AAMI disputes that Ms Brown’s back injury and need for the L5/S1 decompression and lumbar fusion were caused by the accident as well as Ms Brown’s description of the accident to medical professionals.
[13]-[14] The police report noted the incident to be a minor traffic crash, and no police nor ambulance attended the scene. NSW Fire & Rescue attended the accident.

The insured driver described the accident it as a low-speed collision in gridlocked traffic, with minimal damage to the claimant’s vehicle. No air bags deployed.
AAMI relies on the collision and biomechanics report of Dr Andrew McIntosh dated
9 September 2024, where the closing speed of the collision was determined to likely be between 10-20 km/hour.
The photographs of the vehicles after the accident suggest that the accident was a relatively minor impact.
AAMI challenges Ms Brown’s descriptions of the accident, such as claiming she had been struck by a ‘fast moving vehicle’ [Dr Suttor 3 November 2021] which allegedly exaggerated the force of impact.
AAMI discussed Ms Brown’s pre-accident history referring to the Records of Wentworthville Medical & Dental Centre and My Health Merrylands.

[20]-[22] Initial medical visits in December 2020 reported neck and chest pain, with no mention of lumbar spine issues.
[23]-[24] The first back pain complaint appeared in July 2022, leading to spinal surgery in January 2023, which AAMI declined was related to the accident.
[25]-[29] Ms Brown was found to have soft tissue injuries (threshold injuries) to the neck, lumbar spine, shoulders, and chest but no head, hip, or eye injuries. The lumbar spine injury was deemed unrelated to the accident.
[30]-[31] Radiculopathy and degenerative spine disease were attributed to pre-existing conditions, not the accident.
[32]-[37] Facial symptoms, eye injuries, and trigeminal neuralgia were determined not to be related to the accident.

Ms Brown was diagnosed with Major Depressive Disorder, but the insurer argues this diagnosis wrongly relied on the lumbar injury being related to the accident.

[39]-[44] AAMI’s orthopaedic surgeon and other experts concluded Ms Brown’s injuries were soft tissue only and that the lumbar surgery was unrelated to the accident.
[45]-[48] Ms Brown’s doctors (Dr. Bodel & Dr. Porteous) linked the back injury to the accident, but the insurer argues they relied on incorrect accident descriptions.
[49]-[52] Since AAMI conceded a WPI of greater than 10%, Ms Brown is entitled to non-economic loss, but the insurer argues it should be limited to $200,000 based on soft tissue injuries only.
[53]-[64] Ms Brown was earning around $1,400 gross per week pre-accident. AAMI disputes full economic loss, arguing that post-accident work capacity was affected more by the unrelated back condition than the accident.
[65]-[68] AAMI proposes:
· $100,000 for past economic loss (covering six months of total loss, then partial loss until lumbar surgery/employer closure), and
· $50,000 as a buffer for future loss, considering pre-existing conditions and age.

[69]-[71]Ms Brown received $311,622.95 in statutory weekly payments, but AAMI argues there was an overpayment of $41,837.90 due to overlapping CTP and workers’ comp payments.

Claimant’s submissions of 30 January 2025

I briefly summarise Submissions for Ms Brown of 30 January 2025 with reference to paragraph numbers:

[1]-[4] Ms Brown sets out the issues addressed in her submissions.
[5]Ms Brown submits no significant pre-existing injuries or health conditions prior to the accident.
[6]Ms Brown submits that there is no evidence that her life expectancy was reduced because she was a smoker.
[7]Ms Brown provides an excerpt from the Westmead Discharge Summary of
15 December 2020.
[8]Clinical notes from Dr Lim are referenced regarding post-accident medical assessments.
[9]Dr Lim’s clinical notes confirm that Ms Brown’s first visit after the accident was on
19 December 2020. There is no note of complaint of lumbar spine pain on this date.
[10]In Dr Lim’s notes of 29 December 2020, he states: “right lower back pain felt immediately after the motor vehicle accident but the neck pain at the time was so severe that it took the focus off the lower back.”
[11]Dr Lim ordered CT brain spine cervical on 15 December 2020.
[12]Dr Lim also ordered an MRI of the lumbar spine and an MRI of the sacroiliac joints which took place on 6 March 2021.
[13]Dr Lim’s consultation notes record 33 attendances in 10 years.
[14]Ms Brown began physiotherapy.
[15]Ms Brown refers to the report of Dr Kanawati of 16 October 2021:
“I reviewed Kim on two occasions, the first being 17 June 21, the second being 27 August 21…Kim was suffering from several symptoms. The main ones were back pain, left leg radiculopathy, neck pain and occipital headache. Her back pain and leg pain are related to an L5-S1 disc injury which was impinging upon the L5 nerve root. I believe that this is the main reason why Kim is having discomfort and functional limitation…I believe that Kim’s symptoms and her complaints are directly related to the motor vehicle accident.”
[16]Further, Ms Brown refers to the report of Dr Sutor of 3 November 2021:
“On examination, she was teary during the consultation today and in obvious discomfort. She walked with a significant left antalgic gait. Neurological exam of the lower limbs demonstrated intact power although this was pain affected. Straight leg raise test was positive on the left and she had an absent left ankle jerk. Hips are non-irritable…MRI scan of her lumbar spine demonstrates a far lateral disc protrusion at L5/S1 which is displacing and tenting the existing L5 nerve root which would correlate with her clinical symptoms. This does result in a significant foraminal stenosis there. She does have some fluid in the facet joints at this level as well. There is no significant neutral stenosis anywhere else in the spine(sic) lumbar spine.”
[17]Ms Brown submits that Dr Chow diagnosed:
(a)    chronic post-traumatic cervical and back pain;
(b)    cervical and lumbar spondylosis;
(c)    whiplash associated syndrome;
(d)    previous L5/S1 posterior fusion;
(e)    chronic neuropathic pain;
(f)    chronic secondary musculoskeletal pain, and
(g)    post-traumatic stress disorder.
[18]Ms Brown refers to the certificate dated 18 July 2022 of Medical Assessor Curtin.
[19]Ms Brown refers to the certificate dated 19 August 2022 of Medical Assessor Cameron, who determined that the following injuries were caused by the accident (before Ms Brown’s lumbar fusion in January 2023):
(a)    lumbar spine - soft tissue injury;
(b)    cervical spine - soft tissue injury;
(c)    chest - soft tissue injury;
(d)    shoulder - left and right soft tissue injury, and
(e)    arm - left and right soft tissue injury.
[20]Ms Brown refers to the reports of Dr A Porteous, an occupational physician qualified by the claimant:
“Ms Brown, in my opinion, aggravated or exacerbated pre-existing ageing-related degenerative change in the cervical and lumbar spine with also a degree of radicular pain…She has got a chronic pain disorder…There is no evidence of pre-existing injuries although Ms Brown more likely than not had underlying degenerative change although it was asymptomatic”
[21]Ms Brown refers to the report of Dr Bodel, orthopaedic surgeon qualified by Ms Brown, dated 27 September 2022:
“This claimant has mechanical back ache associated with disc pathology at the lumbosacral junction and I am satisfied that the effect of the motor vehicle accident has caused, at the very least, the aggravation, acceleration, exacerbation and deterioration of a disease process being the degenerative disc disease at lumbosacral junction involving L5/S1 in particular…”
[22]Ms Brown refers to the Reports of Dr Hyde Page, orthopaedic surgeon qualified by the Insurer.
[23]Ms Brown refers to the reports of A/ Prof Miniter, Workers Compensation orthopaedic surgeon, who notes that the previous MRI could only possibly identify a compression of the L5 nerve roots.
[24]Ms Brown refers to the certificate of Medical Assessor Friend dated 18 February 2023 who diagnosed a Major Depressive Disorder.
[25]Ms Brown refers to the replacement certificate of Medical Assessor Steiner dated
25 March 2024 who noted her eye injuries caused by the motor accident have resolved and give rise to no assessable permanent impairment.
[26]Ms Brown refers to her written Statement of 13 May 2024.
[27]Ms Brown refers to the Hearing transcript.
[28]Ms Brown submits that there is no medical opinion supporting AAMI’s proposition in cross-examination that she had no lower back pain arising from the accident. Dr Lim first records lower back pain in his consultation notes on 19 December 2020.
[29]Ms Brown summarises the findings of the doctors and medical assessors in regard to injuries caused by the accident.
[30]Ms Brown submits that her treating doctors, Dr Kanawati and Dr Sutor, diagnosed a frank injury based on MRI pathology as a consequence of the accident.
[31]Ms Brown’s current medical condition is chronic significant cervical pain and lumbar pain, supported by the aforementioned. Medical Assessors and doctors.
[32]A/ Prof Miniter does not consider this issue.
[33]Ms Brown’s diagnosis of Major Depressive Disorder is supported by Medical Assessor Friend.
[34]Ms Brown refers to her Statement as set out in [26].
[35]Ms Brown submits that there is no form of surveillance evidence to cast any doubt upon her evidence.
[36]Dr C Chow diagnosed chronic post-traumatic cervical and back pain due to the accident.
[37]Dr G Walker confirmed the condition but did not opine on causation.
[38]Dr Andrew Porteous attributed it to an aggravation of degenerative changes, leading to lumbar fusion and chronic pain disorder.
[39]Dr J Bodel stated the lumbar spine pain was at the very least aggravated, accelerated, or exacerbated, leading to lumbar fusion.
[40]Dr M Hyde Page opined a soft tissue injury of the cervical spine aggravated by degeneration and a lumbar spine injury plausibly caused by biomechanical forces from the accident.
[41]Medical Assessor Curtin diagnosed whiplash from the accident.
[42]Medical Assessor Cameron did not opine on the impact of the accident on degenerative conditions.

[43]Dr Andrew McIntosh, biomechanical engineer qualified by AAMI, stated collision forces did not explain the extent of injuries but acknowledged possible aggravation.
[44]Medical Assessor Steiner found superior hemifield defect and quadrantanopia, while Medical Assessor Veerabangsa excluded trigeminal neuralgia as caused by the accident.
[45]A/Prof Miniter has an opinion that sits on the fence in regard to aggravation of degenerative changes.
[46]Ms Brown consistently reported lower back pain since December 2020 and stated that the pain started immediately post-accident.
[47]Ms Brown submits that she had an unpleasant experience with A/ Prof Miniter which resulted in a hospitalization in July 2022. There was no evidence that this incident contributed to the lumbar fusion on 23 January 2023.
[48]Ms Brown submits that she would not have undergone that operation had she known the outcome, which has not been particular good.
[49]Ms Brown submits that AAMI “cherry-picked” the medical evidence concerning the lumbar spine.
[50]Ms Brown submits no medical opinion contradicts that the cervical spine condition was aggravated by the accident.
[51]Dr Hyde Page alone opined a pre-existing lumbar degenerative condition explained Ms Brown’s condition, but did not establish when aggravation ceased or rebut other medical opinions.
[52]Ms Brown submits the impact severity is irrelevant, as minor collisions can result in serious injury.
[53]Ms Brown submits that based on hers and the medical evidence, the most probable conclusion is that the accident aggravated asymptomatic degenerative changes, leading to lumbar fusion and current health condition.
[54]If a health condition is asymptomatic before the compensable injury and becomes symptomatic after the compensable injury, the tortfeasor is liable as he/she/it takes the claimant as he/she/it finds him/her. The tortfeasor then having an evidential onus to satisfy a tribunal when the asymptomatic condition would have become symptomatic without the tortious event. (See Watts v Rake (1960) 108 CLR 158 and Purkiss v Crittenden [1965] 114 CLR 764.)
[55]This is a significant evidential onus as it goes to the nature of the preexisting condition, its probable effects, the relationship it has to the ultimate state and any disability and the time when these effects would have been seen without the tort. It is not a standard of perfection, but it must be established with a reasonable measure of precision (see Expokin Pty Limited v Graham [2000] NSWCA 267 at [50] (Santow AJA) and Mount Arthur Coal Pty Ltd v Duffin [2021] NSWCA 49 at [64] per Payne JA). This common law principle is unaffected by the MotorAccident Injuries Act 2017 (the Act). The insurer has not met this evidential burden regarding the cervical and lumbar spine conditions.
[56]Ms Brown submits AAMI has not advanced any evidence to satisfy the common law test in respect of Ms Brown’s degenerative cervical/lumbar spine conditions.
[57]Ms Brown’s employment as a traffic controller began from her working life in Scotland and continued to her move to Australia in 1986. She was trained and qualified for a number of traffic controller qualifications. This was her probable future career and measure of her earning capacity.
[58]Ms Brown had a full work history and enjoyed her job.
[59]Ms Brown submits that the accident deprived her of this career due to another driver failing to keep a lookout while changing lanes.
[60]Ms Brown submits there is no challenge in cross-examination to her statement that suggests she planned to retire before 67-70 years of age.
[61]Injuries sustained in the accident are the most probable cause of her incapacity.
[62]Ms Brown’s love of her work was corroborated in a statement from Gary Black and this has not been challenged by AAMI.
[63]The Act does not qualify the principles set out in Mead v Kerney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201. In NSW, the defendant in a personal injury case bears the burden of proving a plaintiff’s residual earning capacity, meaning they must demonstrate what work the injured person is capable of doing and what jobs are available to them in the market. Essentially the onus is on the defendant to prove the plaintiff still has some ability to earn income despite their injury.
[64]Economic loss calculations are straightforward once these principles are applied.
[65]Ms Brown must repay workers' compensation and statutory benefits received for loss of earning capacity.

[66]-[72] Claims include past and future economic loss, superannuation, Fox v Wood, non-economic loss, and repayment of workers' compensation and CTP payments totalling $304,617.05.
[73]Any CTP payments by the CTP insurer have not been taken into account in the workers compensation payments.
[74]It is assumed that there are no significant credit or reliability issues.
[75]Ms Brown has not worked since the accident.
[76]She was employed by CivForce and Roadwork Solutions Pty Ltd for a decade.
[77]Ms Brown attempted to return to work, but failed due to pain.
[78]AAMI argued Ms Brown might have stopped working for personal reasons, such as wanting to spend time with her grandchildren, but she denied this.
[79]Ms Brown denied AAMI’s submission that she had no motivation to work.
[80]Ms Brown’s history of having to work to support herself for many years supports her claim.
[81]Ms Brown expressed a desire to work but is physically incapable.
[82]CivForce formally terminated her employment on 10 January 2023.
[83]Her 2020 taxable income was $90,737 ($1,339.80 net per week).
[84]-[86] Based on Ms Brown’s CivForce payslips, her average net weekly income was $1,433.55.
[87]Ms Brown provides her earnings based on historical Notices of Assessment for the
2017-2020 tax years.
[88]-[90] Past economic loss estimated at $364,800, including long service leave.
[91]Past superannuation calculated at 11% of the nett, being $40,128.
[92]Ms Brown submits that the Fox v Wood claim would be $61,196 plus statutory payments.
[93]In respect to Future Economic Loss, under cl 4.7(1) of the Act, Ms Brown’s most likely future was continued employment as a traffic controller.
[94]Given Ms Brown’s work history including her earnings history as well as CPI increases, she submits that the sum of $1,650 nett per week is claimed for a future loss over 7 years (until age 72) on 5% tables (309.4) = $510,510.
[95]Ms Brown submits one year loss of long service leave of 10 weeks at $1,650 = $16,500. A total future economic loss sum claimed is $527,010.

[96]-[97] Cl 4.7(2) and (3) of the Act, requires the Commission to adjust by percentage the possibility that the events concerned might have occurred, even without the Accident injury (a Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 common law approach). A 3% adjustment under the Act results in $511,200 ($527,010 - $15,801).
[98]-[99] Ms Brown submitted that she is unfit for work due to her back injury, lacks office experience, and faces employment barriers due to her injury history.
[100]Ms Brown submits that the evidence does not justify diminution of the claimant’s claim for future economic loss other than as set out above.
[101]In respect to future superannuation, it was agreed at the hearing this would be ascertained at 11.95% of the future economic loss and therefore $61,088 is claimed.
[102]Ms Brown’s suffering and reduced quality of life as a result of injuries sustained in the accident are evident; no surveillance material contradicts this.
[103]A claim of $400,000 is made for non-economic loss as representative of Ms Brown’s condition:
·         past economic loss: $364,800;
·         past superannuation: $40,128;
·         Fox v Wood: $61,196;
·         future economic loss: $511,200;
·         future superannuation: $61,088;
·         non-economic loss: $400,000, and
·         Total: $1,438,412 plus regulated costs.
[104]Workers' compensation payments are in excess of $304,617 and will be deducted from the above figure.

Insurer’s submissions of 13 February 2025

[1]-[2] Ms Brown, 65, was injured in the accident on 11 December 2020. Liability is admitted by AAMI and the only controversy to be resolved is the damage quantification.
[3]Regarding credibility, AAMI submits Ms Brown's responses during questioning suggest a tendency to argue rather than provide a fully honest account.
[4]AAMI submitted that this was evident in a discrepancy in reported weekly earnings, being $1,300 vs. $1,396.19, which indicate inconsistency.
[5]Ms Brown received COVID-19 payments despite working. She asserts that she corrected this mistake, and submits she was unaware she was receiving both sums.
[6]No immediate lower back pain was recorded at the hospital, despite later claims of severe pain.
[7]Ms Brown denied reducing her work hours to see her grandchildren, but AAMI submits that though logic this suggests otherwise.
[8]Ms Brown sustained soft tissue injuries (cervical spine, chest, shoulders/arms), left eye visual issues, and a major depressive disorder. AAMI submits that the level of disability flowing from those injuries appears mild.
[9]The extent to which Ms Brown’s lower back pain relates to the Accident is disputed.
[10]-[17] AAMI argues the ongoing lumbar spine issues stem from pre-existing degenerative changes rather than the Accident. AAMI refers to expert opinions from Dr. Hyde Page and Dr. McIntosh which suggest any lumbar injury was at most an aggravation of prior pathology. AAMI relies on decisions in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, Wilson v Peisley (1975) 7 ALR 571, and State of New South Wales v Burton [2006] NSWCA 12 which indicate pre-existing conditions must be considered in damage assessments.
[18][AAMI disputes the weight of medical opinions supporting Ms Brown’s claim as the experts relied on her description of a “high-speed” accident, but the biomechanical engineer, Dr McIntosh, reported that the accident was one of “low-speed”.
[19]AAMI submits that Dr Porteous does not offer an explanation as to why Ms Brown’s lumbar spine was aggravated in the accident.
[21]-[29] Non-Economic Loss:
·         AAMI concedes that Ms Brown qualifies for non-economic damages but argues her claimed amount is excessive;
·         AAMI submits that she remains functional: caring for grandchildren, traveling, shopping, and socializing (albeit less), and
·         Compared to precedent cases with severe injuries and multiple surgeries as set out in the Submissions, $275,000 is proposed as a more appropriate figure.
[31]Ms Brown’s pre-accident earnings varied, conflicting between reported figures ($1,300–$1,433.55). AAMI submits Ms Brown’s method of calculating earnings inflates the claim.
[32]AAMI submits that Ms Brown’s payslips confirm that her earnings varied depending on the hours she worked, making a reliance on a short pre-accident period inappropriate.
[34] AAMI submits that no increase should be made for inflation per Todorovic v Waller (1981) 150 CLR 402. No proper basis exists for an increased sum based on historical earnings due to fluctuating hours and lack of evidence for continued wage increases.
[35] AAMI submits that Ms Brown’s lumbar spine injury is unrelated to the accident, and as this is the primary impediment preventing her from returning to work, she should not recover total loss through to the date of the certificate.
[36] AAMI refers to [63]-[65] of its Submissions of 21 November 2024 and maintains that its previous assessment of $100,000 for past net loss is correct and reasonable.
[37] AAMI submits that if all past loss is attributed to accident-related injuries, Ms Brown’s weekly net loss should be $1,120, with 11% lost superannuation.
[38] In respect to Future Economic Loss, Ms Brown’s claimed weekly loss of $1,650 with reference to inflation and her past work is inconsistent with financial records and should not be accepted.
[39] AAMI submits Ms Brown’s proposed 3% reduction under s4.7(2) – (3) for future loss claimed for a period of seven years is unrealistic, as it assumes work until age 72 - beyond the typical retirement age.
[40] FAI Allianz v Lang (2004) confirms the usual range of 15% reduction for contingencies, covering wide-ranging uncertainties.
[41] AAMI submits a 3% reduction disregards life’s uncertainties, including Ms Brown’s history of smoking and related health issues. A higher reduction is appropriate.
[42] Ms Brown’s health history and degenerative lumbar spine changes guided by the authorities favour a greater reduction, though a specific percentage is unnecessary due to the buffer outlined below.
[43] AAMI submits Ms Brown’s intention to work until 72 is not reliable evidence without medical expert support and contradicts the physical demands of her role.
[44] The statement from Mr. Black suggesting extended work life lacks weight, as Ms Brown previously left a job she "loved" for another role. AAMI submits that this indicates that it is equally as probably that Ms Brown’s priorities in the future might have shifted and she might have spent more time with her grandchildren.
[45] Working until 72 is inherently improbable; and the more likely scenario would have been retirement at or around 67.
[46] AAMI submits the claim for lost long service leave is too speculative, as it is improbable to determine whether Ms Brown would have worked for enough time to accrue the necessary level of leave.
[47] Ms Brown bears the burden of proving total loss of earning capacity before the insurer must demonstrate viable job options.
[48] AAMI submits that Dr. Porteous’ report inconsistently states total incapacity while implying potential job options, and it lacks substantive reasoning.
[49] AAMI further submits that Ms Brown’s medication is taken at night and is not prohibitive of her working.
[50] Ms Brown previously worked as a boom gate operator post-accident, but did not reconsider it as a viable job despite feeling that she could manage it.
[51] Apart from a failed work trial, Ms Brown had only recently started job-seeking, proving she is capable of working.
[52] Ms Brown applied for multiple jobs, including library and car park attendant roles, and was even offered a job but declined due to not being able to drive a manual car - not due to physical limitations - and also stated that she could not reverse, despite the fact that she continues to drive.
[53] AAMI submits that based on the evidence, Ms Brown does not have a total loss of earning capacity.
[54] In respect to an assessment of future loss, AAMI maintains that a $50,000 buffer is generous, submitting:
·          the primary incapacity (lumbar spine) is unrelated to the accident;
·          Ms Brown retains earning capacity;
·          other health issues and degenerative changes make full work life unlikely, and
·          loss beyond age 67 is speculative.
[55] Fox v Wood payments will be determined once the Member sets a date for publishing reasons.
[56] AAMI provides a proposed total loss assessment:
·         non-economic loss: $275,000;
·         past economic loss (incl. super): $100,000;
·         future economic loss (incl. super): $50,000;
·         Fox v Wood: To be confirmed, and
·         Total (plus costs): $425,000.

Claimant’s Submissions in reply of 20 February 2025

I briefly summarise Mr Quickenden’s, Counsel for Ms Brown, Submissions of 20 February 2025 with reference to paragraph numbers:
[1]AAMI has not responded to the issues set out in Ms Brown’s written submissions dated 30 January 2025, nor challenged the injuries listed in [29] of her submissions, including multiple musculoligamentous injuries, aggravation of degenerative spinal changes, visual impairments, and major depressive disorder.
[2]It is open to the Tribunal, although not pressed by Ms Brown, to accept reports from Dr Kanawati and Dr Sutor diagnosing an L5/S1 disc bulge with posterolateral disc herniation on the left side which is impinging upon the S1 nerve root but more so in the foramen and impinging upon the existing L5 nerve root.
[3]AAMI has not disputed in its submissions the summary of Ms Brown’s current chronic cervical and lumbar pain or major depressive disorder resulting from the accident.
[4]Ms Brown was not cross-examined on exaggerating her condition, yet AAMI asserts her disability is mild. Ms Brown submits this contradicts medical evidence, including the insurer’s own, and the insurer’s admission of over 10% WPI and a $275,000 non-economic loss submission.
[5]AAMI has not specifically challenged the disabilities listed in Ms Brown’s submissions of 30 January 2025 at [26].
[6]Ms Brown submits AAMI’s submissions on workers’ compensation and Fox v Wood are generally acceptable but could benefit from specific evidence.
[7]AAMI’s submissions address Ms Brown’s credibility, the contribution of the accident to her lumbar spine condition, and the quantum of past economic, future economic, and non-economic losses.
[8]AAMI submits Ms Brown was not entirely honest.
[9]Ms Brown submits that the medical evidence, including that from AAMI’s experts, is consistent and uniform, and supports her integrity. There is no surveillance or other evidence to contradict this.
[10]Ms Brown submits AAMI submission is made without any probative examples of her not being honest and open:
(a)    Ms Brown submits that a minor $33 discrepancy in estimated weekly earnings is normal, as it is not reasonable to expect precision from her memory in respect of net weekly earnings;
(b)    Ms Brown disclosed the discrepancy and repaid any COVID-19 overpayments, and no legal action was taken;
(c)    Ms Brown submits that AAMI’s own medical evidence supports Ms Brown sustaining at least a soft tissue lower back injury and an aggravation of her degenerative changes in the lumbar spine, and there is evidence of back complaints in Dr Lim’s medical records, and
(d)    no evidence supports the claim that Ms Brown would have reduced work hours to spend time with grandchildren.
[11]Ms Brown submits there is no valid reason to question her honesty in this case.
[12]AAMI’s submission that Ms Brown’s lower back injury is “controversial” is misleading, given medical evidence confirming it in [28] and [29] of Ms Brown’s Submissions.
[13]Ms Brown submits medical evidence, with the possible exception of Dr Hyde Page, supports that the accident materially contributed to the claimant’s current condition.
[14]AAMI’s argument that the injury was just an “aggravation” of pre-existing degenerative changes lacks evidence, with the possible exception of the opinion of Dr Hyde Page.
[15]Ms Brown sets out the details of her fusion surgery, confirming the severity of her injury.
[16]Ms Brown submits Dr McIntosh initially gave the impression that the accident forces could not establish any injury of significance, but later acknowledged it aggravated a pre-existing condition.

[17]-[20] Ms Brown notes legal precedents cited by AAMI do not undermine her position. There is no evidence to determine when, if ever, her degenerative conditions would have become symptomatic without the accident.
[21]The statutory ceiling for non-economic loss is $654,000 under the Act, and each case is assessed individually.

[22]Ms Brown sets four comparable cases which suggest her claim is reasonable, with past awards ranging from $320,000 to $427,000 for similar injuries.
[23]Ms Brown submits she was an active person whose life was significantly impacted, justifying the amount claimed.
[24]Ms Brown’s tax returns and payslip figures provide accurate earnings data and do not inflate or overstate her claim.
[25]Ms Brown submits that AAMI fails to provide legal or evidentiary grounds to reduce the past economic loss submission.
[26]In respect to future economic loss, Ms Brown’s regular earning increases justify assessing future loss based on her pre-accident earnings.
[27]-[28] Ms Brown submits AAMI’s reliance on FAI Allianz Insurance Ltd v Lang [2004] NSWCA 413 is misplaced, as that case involved a much younger plaintiff.
[29]Ms Brown had no pre-accident health issues affecting her ability to work.
[30]Separate Superannuation adjustments at 11% for the past and 11.5% for the future are agreed upon.
[31]It is common for workers in 2025 to continue working beyond age 70; Ms Brown’s intent to do so was not contested.
[32]Ms Brown submits that AAMI’s claim that a $50,000 future economic loss allowance is “overly generous” is inappropriate.

Consideration of the submissions

Ms Brown’s submissions point out, and I accept that, AAMI has not challenged that
Ms Brown sustained the following injuries and or conditions in, or as a result of, the accident:
(a)    musculoligamentous injury to the cervical spine;
(b)    musculoligamentous injury to the lumbar spine;
(c)    musculoligamentous injury to the chest;
(d)    musculoligamentous injury to both shoulders;
(e)    musculoligamentous injury to both arms;
(f)    aggravation of degenerative changes in cervical spine;
(g)    aggravation of degenerative changes in lumbar spine;
(h)    superior hemifield visual defect in the left eye;
(i)    Quadrantanopia of the right eye, and
(j)    major depressive disorder.
There is cogent evidence that Ms Brown has significant chronic cervical and lumbar pain and this has a substantial causal connection with the accident.
I consider that on the balance of probabilities, the opinion expressed by Dr Kanawati, a well-qualified and the treating orthopaedic surgeon, who gave a clear analysis in his report of
4 October 2022 of the mechanism of the accident:
“Kim describes being a restrained driver and was struck from the left rear side by another car. I would describe the mechanism as high energy as the car that struck her caused her car to elevate in the air above the bonnet that struck her. I note that the opinion of Paul Miniter is that he believes that the energy involved was low and Kim's symptoms are not consistent with the mechanism of injury. I think this is incorrect and the high-energy nature of this accident I certainly consistent with the severity of Kim's symptoms.”
Further, Dr Kanawati opines [47]:
“To my knowledge, Kim has not complained of prior episodes of lower back pain or radicular pain. Despite the medical imaging showing some spondylitic changes, this injury is certainly a severe new condition which is an exacerbation of what seems like preexisting spondylitic changes. The symptoms that Kim has been complaining of since the accident are definitely related to the accident directly and were not present prior to the injury and I suspect that if Kim had not had this injury, she would have remained asymptomatic.”
Dr James Bodel, a well-qualified and highly experienced orthopaedic surgeon, was clear in his opinion that the effect of the accident caused the aggravation, acceleration, exacerbation, and deterioration of the degenerative condition in the lumbar spine (see [70]-[72] above).
I have noted the opinion of Dr Hyde Page but consider on the balance of probabilities the explanation given by Dr Kanawati and the opinion of Dr Bodel should prevail.
Ms Brown has a major depressive disorder diagnosed and reported on by medical assessor Paul Friend, who certified on 18 February 2023 that Ms Brown had suffered a Major Depressive Disorder as a result of the accident.
Although there are differing opinions as between Dr James Bodel, orthopaedic surgeon, and Dr Hyde Page, orthopaedic surgeon, on the balance of probabilities, I accept as correct the view of Dr Bodel that the effect of the accident caused the aggravation, acceleration, exacerbation, and deterioration of a disease process, being degenerative disease at L5/S1 (see [70]-[72] of these Reasons above).
Dr Hyde Page remained of the view that the injury to the lumbar spine and the need for a lumbar spine decompression and fusion at L5 was due to the pre-existing degenerative condition, and he considered that the lumbar spine would have become symptomatic at some point irrespective of the accident.
Dr Hyde Page, however, did not engage with the reasoning of the spinal surgeon (see [46] of these Reasons above) who gave a precise description of what he considered to be the mechanism of the injury to the low back.
I note and agree with the submission of Ms Brown’s Counsel that there is no evidence putting to one side the opinion of Dr Hyde Page, that the aggravation of Ms Brown’s lumbar spinal injury was trivial, minimal, or did not materially contribute to a need for a spinal fusion.
I note the description of the fusion operation set out at [15] of Mr Quickenden’s submissions.
I refer to the report of Dr Chow Chow at [51] above and I note his diagnosis of chronic post-traumatic cervical and back pain, chronic neuropathic pain, chronic secondary musculoskeletal pain, and maladaptive pain cognition with pain catastrophising and low-self efficacy.
I note the opinion of Dr Grant Walker, treating neurologist, in his report to the GP of
11 April 2023.
I note the opinion of Dr Porteous, occupational physician, that Ms Brown was unfit for her pre-accident employment.

LEGISLATIVE AND REGULATORY FRAMEWORK

Non-economic loss

Non-economic loss is defined in s 1.4 of the Act to mean:
(a)    "pain and suffering;
(b)    loss of amenities of life;
(c)    loss of expectation of life, and
(d)    disfigurement"
The maximum that may be awarded under this head of damages has since
1 October 2024 been $654,000 [s 4.13(1)].
The s 4.13(1) figure is merely a cap and the claimant being entitled to non-economic loss damages they are assessed in accordance with common law principles within the confine of the cap in the matter of Hodgson v Crane [2002] NSW CA 276 (Crane), and RACQ Insurance Ltd v Motor Accidents Authority of NSW (No.2) 2014 NSW SC 1126. See also Hoffer v Brown [2009] NSW DC 32.
The amount of non-economic loss damages to be awarded should be proportionate to the claimant's injuries and disabilities:
"11. it is a relationship of the award to the injury and its consequences which is to be proportionate It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. …The principle to be followed .... It is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring to allow for differences between the circumstances of other cases and the circumstances of the case in hand." [Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ [11]
A key principle is that the amount assessed for non-economic loss should be comparable to awards of non-economic by other assessors and Courts (James Hardie & Co v Newton [1977] 42 NSWLR 729 as per Handley JA at 732).
The amount awarded is not assessed on the basis of a percentage of the maximum but on the basis of what the appropriate dollar amount is. The non-economic loss figure awarded is not required to be proportionate to the maximum. This was rejected in the matter of Crane.
The degree of WPI is not a reliable indicator of the severity or otherwise of the claimant's injuries. WPI is a statutory method of assessing entitlement. It does not directly measure incapacity, pain and suffering.

Consideration of non-economic loss damages

Ms Brown was, at the time of this accident, a vulnerable person and susceptible to significant trauma of a psychological nature as in fact happened to her and described by Medical Assessor Friend. (See Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 where the primary Judge applied the Common Law Principle of eggshell skull).
The tortfeasor had to take the claimant as it found her, namely a person who had a pre-existing cervical spine MSD (musculo-skeletal disorder). This matter is a classic illustration of the 'eggshell skull' principle.
In taking into account physical injuries, I have concluded that need for the surgery performed by Dr Kanawati was causally connected to the accident and the need for such surgery should be taken into account in a consideration of non-economic loss damages.
In addition to developing a major depressive disorder as a result of the accident, Ms Brown also sustained significant physical injuries which have been referred to above.
Ms Brown, in her statement of 7 December 2023, provided further details at [22] before was very active, [24] used to meet friends, is now home-bound. Social activities are almost non-existent, feels extremely lonely and often depressed, [31] claims that she has lost 50% of vision in her left eye, [50] prior to the accident, had been working in traffic control for about 11 years, [53] had not worked since the accident, [54] had intended to work as a traffic controller until age 70, but is unable to do so.
From Ms Brown’s further Statement of 13 May 2024 at [23] before the accident she was more involved with her grandchildren and was very active with them. Can no longer manage to be active with her grandchildren. [24] used to go dancing, [26] significant weight gain, [28] issues with sleep, [29] helplessness and loss of self-worth, [51] straight after leaving school, started working in traffic control, gaining qualifications and 11 years’ experience, [59] tried to get back to work, could not do the physical duties.
I accept the evidence of Ms Brown taken as a whole that she derived a great deal of job-satisfaction out of this relatively simple job which was the whole of her working life from when she was quite young until the accident.
Being a traffic controller was the limit of Ms Brown’s ambitions in life and apparently she did the job quite well and was happy in her small role in life, so much so that her duties to it limited the amount of time she had available to spend with her daughter and grandchildren.
Further, Ms Brown apparently wanted nothing more than to continue working in that role until beyond age 67 and even beyond age 70. Prior to the accident, she had no thoughts of ceasing work.
Ms Brown takes a whole battery of medications and was, at least until recently, was taking quite significant pain-killing medication of Palexia (Dr Chow Chow prescribed Palexia/Tapentadol as an opioid-based pain relief medication).
Dr Porteous was of the opinion that Ms Brown’s chronic pain was at 10+/10 frequently:
“which on its own would incapacitate someone from all work.”
Ms Brown told Dr Grant Walker, treating neurologist, who noted that she walked with a walking stick due to her back pain and poor balance; neck pain radiated into her neck, shoulder, and up behind her left ear. He noted that she was taking Palexia, 50mg, one twice a day, Panadeine Forte, three or four times a day, and used to take a higher dose of Palexia and also Lyrica, but developed side-effects.
AAMI, in its submissions of 13 February 2025, put Ms Brown’s credibility in issue by submitting that she had a tendency to argue rather than provide a fully honest account.
I did not form an adverse view of Ms Brown’s credibility and it seemed to me that she did her best to provide a ‘fully honest account’.
AAMI’s disputes the extent to which Ms Brown’s lower back pain relates to the accident and refers to the opinions of Dr Hyde Page and to that of Mr MacIntosh (PhD).
Dr Hyde Page himself referred to the qualifications which must be placed on the opinion of the forensic biomechanical engineer. The opinions of Dr Porteous do not stand alone.
Ms Brown also relies on the opinion of Dr Bodel and of the treating surgeon.
In summary, Ms Brown, as a result of the totality of her injuries and disabilities as noted above, suffered a significant change in her life circumstances and one which has removed her from the workforce and from employment, which she enjoyed, and left her isolated and suffering from a variety of painful symptoms and major depressive disorder.
I assess Ms Brown’s damages for non-economic loss at $375,000.

PRINCIPLES AND CASE LAW - PAST ECONOMIC LOSS

The fundamental principle for assessing or awarding damages to an injured person is that a Tribunal should assess damages so that they represent no more nor less than the persons’ actual loss: Livingstone v Rawyards Coal Co [1880] UKHL 3.
Damages for personal injury are given on a once and for all basis irrespective of whether the person’s condition worsens or improves.
In cases such as Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined is whether a claimant has sustained a loss or diminution in his earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard for the provisions of Div 4.2 of the MAI Act.

Past Impairment of earning capacity and its economic consequences

On the view that I have taken, the need for the surgery to the lumbar spine is captured within the past impairment of earning capacity and there should be no break in the period of past economic loss to take into account the need for the surgery itself or the period of convalescence and recovery as the need for the surgery was caused by the accident.
Ms Brown’s central submission is that she, as a result of the combined effect of her physical and psychiatric injury combined with her chronic pain, has been prevented from working since the date of the accident.

Submissions of AAMI

AAMI’s central submission is that based on the evidence Ms Brown does not have a total loss of earning capacity [13 February 2025 – [53]]. Further, AAMI submits [13 February 2025 – [8]] that Ms Brown sustained soft-tissue injuries (cervical spine, chest, shoulders/arms), a left eye injury, and a major depressive disorder, but the level of disability flowing from those injuries appeared mild.
Further, AAMI [9] disputed the extent to which the low back pain was causally related and referred to the opinions of Dr Hyde Page and Mr MacIntosh (PhD).
AAMI disputed the precise amount of Ms Brown’s payslips, and that her pre-accident earnings varied. It also raised that no increase was made for inflation [31]-[34]. As the lumbar spine injury was not related to the injury [35] she should not recover total loss.
AAMI argued at [36] and [63]-[65] of its submissions of 21 November 2024 that its previous assessment of $100,000 for past net loss of earnings on a buffer basis was correct and reasonable, together with past loss of superannuation at 11%.
With respect to the calculation of past economic loss, there is no dispute that Ms Brown has been out of work since the accident, and that prior to the accident, she was employed with Civ Force Traffic and had been working with Roadwork Solutions Pty Ltd since about 2010.
As Ms Brown’s Counsel submits [77] in its submissions of 30 January 2025 that it is common ground that Ms Brown has been receiving worker’s compensation payments and statutory benefits since the accident. The evidence is uncontradicted that she tried to return to work on two occasions, unsuccessfully.
Ms Brown’s Counsel submits at [78] in its submissions of 30 January 2025 that AAMI had tried to establish that Ms Brown would not have performed full-time work, even without the accident, for the reasons he sets out.
AAMI did not establish, by evidence, these propositions it served to establish in cross-examination.
Counsel then sets out a number of arguments in favour of Ms Brown’s position at [79]-[80].
Ms Brown was terminated from Civ Force as per a letter of 10 January 2023.
Ms Brown makes a claim for past economic loss and based on the Notice of Assessment for the financial year ended 2020, she recorded a taxable income of net $1,339.80 per week.
Ms Brown makes a claim for past economic loss in full form the date of the accident,
11 December 2020.
I cannot see the logic in the base amount for net weekly earnings on the restricted period set out in [85]. Rather, it is more appropriate to calculate the loss based on the Notices of Assessment for financial year 2020, that is $1,339.80 per week.
I calculate past loss of earnings at $1,339.80 per week from the date of the accident to date, giving 221 weeks being $296,095.80.
Ms Brown has not established by evidence the basis for an entitlement to past loss of long service leave.
Ms Brown has not established by evidence the alleged loss referred to in paragraph [88].
Past loss of Superannuation was agreed at a figure of 11% of $296,095.80, giving $34,051.01.
Fox v Wood accounts for $61,196 plus any statutory payments not included in that amount.

FUTURE ECONOMIC LOSS
Regulatory Framework for future economic loss

Section 4.7 of the MAI Act:
“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.”

How the Court deals with the assumptions of fact

Basten JA delivering the judgement of the Court also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:
“The assumptions or events upon which a baseline may commonly be calculated include:
(a) identification of the skills, training and experience of the plaintiff, as at the date of the accident;
(b) the work he or she was undertaking immediately prior to the accident;
(c) the likelihood that he or she would have continued in such employment, but for the accident;
(d) the possibility that he or she might have obtained promotion or other benefits, but for the accident;
(e) the age to which he or she was likely to have worked in that employment, and
(f) the possibility that the employment would not have been continuous."

Assumptions as to Future Economic Loss

Ms Brown was born in July 1959 and but for the accident she would have had about a further six years until usual retirement at 67.

Immediately prior to the accident, Ms Brown was working as a traffic controller and according to her evidence, was enjoying faster work and was fulfilled by the job and wanted to, and intended to, continue in that employment for as long as she was able.
On the evidence on the balance of probabilities, Ms Brown would have continued to work as a traffic controller, probably in her pre-accident employment, until at least age 67 and there being no evidence that the position, or a similar position, would not be available until about age 70.
On the evidence, including that given at the assessment conference, family obligations do not appear to have created any impediment to Ms Brown continuing in such employment, and indeed she would appeared to have had prioritised her job from which the evidence shows she derived significant job satisfaction and fulfilment.
If the work with her pre-accident employer was for any reason not available, then on the balance of probabilities, given her long experience in the work, Ms Brown would have obtained similar employment with an alternative employer.
Ms Brown’s counsel has submitted that given her work history, including her earnings history, as well as CPI increases, the sum of $1,650 net per week is claimed for future economic loss for seven years until age 72 on 5% tables for an amount of $510,510.
For reasons which I have set out above in respect of past economic loss, there is no evidence to justify an increased earnings base for future economic loss so as to give a net figure of $1,600 per week, taking into account the considerations set out in [88] of
Mr Quickenden’s submissions of 30 January 2025 for the following reasons:
(a)    even though there was a historical trend in the increase of her taxable income between 2017 and 2020, there is no evidence as to any arrangements which
Ms Brown had or did not have with her employer to adjust her pay for inflation as argued in [88]. There is no evidence as to her employer’s capacity to pay, or as to the market conditions immediately prior to the accident;
(b)    there is no evidence as to the relevant terms and conditions of her employment with respect to adjustments for inflation, and
(c)    there is no evidence as to comparable earnings of traffic controllers relevant as at the time of the accident.
Accordingly, I have assumed for the purpose of calculating future economic loss, a figure of $1,339.80 net per week.
I calculated Ms Brown’s future economic loss for a future period of five years, until age 70, on 5% tables (231.5) less 15% for vicissitudes giving $263,639.15.
The parties have agreed that 11.5% is an appropriate figure for future Superannuation, giving $30,318.50.
SUMMARY OF DAMAGES
·        Past Economic Loss   = $296,095.80
·        Past Superannuation   = $34,051.01
·        Fox v Wood   = $61,196
·        Future Economic Loss                  = $263,639.15
·        Future Superannuation                 = $30,318.50
·        Non-Economic Loss   = $375,000
Total damages   = $1,060,300.36
I note, as drawn to my attention by counsel for Ms Brown, that Workers Compensation Payments are in excess of $304,617 as at 23 January 2025 and will be deducted from the total in paragraph [186].
Assessment of regulated costs
·        Stage 1 as claimed: 2.92 units at $124.53 = $363.63;
·        Stage 2 as claimed: 4.32 units at $124.53 = $537.97;
·        Stage 3 as claimed at 114.48 monetary units (mu) plus 2 cents= $33,462.20
(1 monetary unit = $124.53), and
·        Stage 4 as claimed at 2 cents per dollar = $21,206.01.

Maximum costs for legal services (cl 22(1))

Representation at an Assessment Conference: 33 units at $124.53 = $4,109.49.
Conference directly related to assessment of claims for damages: 4 hours claimed = $1,494.36.
Application for Medical Assessment under Cl 2, Division 7.5 = $1,992.48.
Application for further/review Medical Assessment = $1,992.49.

Maximum fees for Medico-legal services (Clause 28(1))

Medico-Legal specialist Report (not joint med) = $1,919.

Unregulated costs assessed as fair and reasonable

Clinical records of treating health practitioners = $395.30.
Travel costs and expenses to attend DRS or Court = $142.71.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed under the MAI Act is $74,377.20 (including goods and services tax (GST)).
Total costs and disbursements assessed are $74,377.20 (including GST).

LEGAL COSTS

Preliminary

Ms Brown makes an application for the payment pursuant to s 8.10(4) of the Act.
The Commission can permit payment of legal costs incurred by a claimant if satisfied that;
(a) the claimant is a person under legal incapacity; or
(b) exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
In a submission of 5 February 2025, the solicitor for Ms Brown at [9] refers to AAI Ltd trading as GIO v Mood [2020] NSWSC 717.
As submitted, that case referred to; “particular unusual situations where the maximum costs fixed by the regulations may not be adequate” as some cases may be exceptional “because they involved an unusual degree of factual or legal complexity or for some other reason, and this required the incurring of more substantial legal costs by a claimant.” This application fails. There was no particular factual or legal complexity to justify the making of an exceptional costs order.

Total

Under sub-sections 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $1,060,300.36

[2025] NSWPIC 103

21 March 2025