BRY v Allianz Australia Insurance Limited - [2025] NSWPIC 231

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BRY v Allianz Australia Insurance Limited [2025] NSWPIC 231
CLAIMANT:	BRY
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	28 May 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Motor Accidents Compensation Act 1999 (MAC Act); claimant was travelling on a government bus; public transport accident within the meaning of section 121(1) of the Transport Administration Act 1988; damages to be assessed under the MAC Act; McTye v Ching Yu Chang by his Tutor Leo Alexander Birch applied; contributory negligence alleged in circumstances of a no fault accident; correct test for contributory negligence in a no fault accident claim; Axiak v Ingram considered and applied; physical injuries and psychiatric/psychological injuries; long history of pre-existing conditions to the same body systems injured in the motor accident; no entitlement to non-economic loss; assessment of claim for past and future economic loss; consideration and application of section 126 of the MAC Act; Malec v Hutton Pty Ltd, Watts v Rake, Purkiss v Crittenden, Medlin v State Government Insurance Commission, Husher v Husher, and Penrith City Council v Parks considered; Held – claimant had not departed from the standard of care she was required to observe; insurer failed to discharge its onus of proving contributory negligence on the part of the claimant; claimant is entitled to damages for past and future economic loss.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The amount of damages for the claim is $2,687,149. 2. The insurer is to pay the claimant’s legal costs and disbursements in accordance with Part 8 of the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 as agreed or assessed and as assessed in the statement of reasons in respect of the unregulated fee for the forensic accounting report of Furzer Crestani dated 3 April 2023 in the sum of $8,360. 3. Given the sensitive personal information referred to in the attached statement of reasons, I direct that the decision be de-identified before it is published in accordance with rule 132 of the Personal Injury Commission Rules 2021. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

BACKGROUND

This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 2 July 2019 (the motor accident).
[BRY] (the claimant), is a 51-year-old woman (almost 52), who alleges she suffered physical and psychological injuries as a result of the motor accident.
On 2 September 2019, the claimant made an application for personal injury benefits in respect of the motor accident. Allianz Australia Insurance Limited is the relevant compulsory third-party insurer (the insurer).
On 10 March 2021, the claimant made an application for damages under common law.
On 1 July 2022, the claimant lodged the Application with the Motor Accidents Division of the Personal Injury Commission (Commission).
On 22 July 2022, the insurer partially admitted liability on the basis that the motor accident was a “no fault accident” within the meaning of the MAI Act. The insurer alleged contributory negligence on the part of the claimant, which it assessed at 25%.
At a preliminary conference on 6 September 2024, the matter was set down for an assessment conference on 22 November 2024. At the assessment conference, Ms Jnana Gumbert of counsel appeared for the claimant, instructed by Ms Julie Mahony, solicitor. Mr Bede Kelleher SC appeared for the insurer, instructed by Ms Antonia Vo, solicitor.
The parties confirmed that they were aware of the decision in Chang v McTye[1] in respect of the operation of s 121 of the Transport Administration Act 1988 and that an appeal in that case was pending before the Court of Appeal at the time of the assessment conference. The claimant advised that she was only pursuing damages for past and future economic loss including superannuation in these proceedings. The appeal referred to above was subsequently dismissed by the Court of Appeal.[2]
[1] Chang v McTye [2024] NSWDC 218.
[2] McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3.
At the commencement of the assessment conference, the parties agreed that the following issues were required to be determined by me:
(a)    any contributory negligence on the part of the claimant;
(b)    the nature and extent of the claimant’s injuries and incapacity;
(c)    the claimant’s entitlement to damages for past loss of earnings or past loss of earning capacity, including superannuation, and
(d)    the claimant’s entitlement to damages for future loss of earnings or future loss of earning capacity, including superannuation.
At the commencement of the assessment conference, the parties agreed that:
(a)    settlement negotiations had been exhausted;
(b)    the claimant had no entitlement to damages for non-economic loss;
(c)    the deduction to be made under s 3.40(1)(b) of the MAI Act (statutory payments of weekly benefits) amounts to $460,155.10;
(d)    payments made by the insurer under s 4.5(1)(d) of the MAI Act (Fox v Wood damages) amount to $70,837;
(e)    there were no advance payments made to the claimant by the insurer, and
(f)    neither party required me to issue my decision in draft.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the claimant’s final tender bundle of documents relied on in her case lodged with the Commission on 12 November 2024 (claimant’s documents);
(b)    the insurer’s final tender bundle of documents relied on in its case lodged with the Commission on 28 October 2024 (insurer’s documents);
(c)    the claimant’s written submissions in reply lodged with the Commission on 21 November 2024 (claimant’s submissions in reply), and
(d)    the insurer’s supplementary tender bundle of documents relied on in its case lodged with the Commission on 21 November 2024 (insurer’s supplementary documents).

Oral evidence

Oral evidence was adduced from the claimant at the assessment conference.

SUBMISSIONS

The claimant’s legal representatives provided a schedule of damages and written submissions on the substantive issues dated 11 November 2024, supplemented by oral submissions at the assessment conference.[3]
[3] Claimant’s documents at pages 243-258.
The insurer’s legal representatives provided written submissions on the substantive issues dated 20 November 2024, supplemented by oral submissions at the assessment conference.[4]
[4] Insurer’s documents at pages 1-11.
The claimant’s legal representatives provided written submissions in reply dated 21 November 2024.[5]
[5] Claimant’s submissions in reply at pages 1-7.
Outlines of the parties’ respective submissions are referred to under each relevant issue for determination set out below.

CONTRIBUTORY NEGLIGENCE

Application for personal injury benefits

On 2 September 2019, the claimant signed an application for personal injury benefits in respect of the motor accident (the application form).[6]
[6] Claimant’s documents at pages 1-6.
The application form set out the basic particulars of the motor accident and the claimant provided the following description of the motor accident:
“I got on the M 30 bus at stand T at approximately 6.07pm on 2 July to travel home. As the bus was full I moved to the back of the bus & stood holding one of the straps which was attached to a metal bar near the ceiling. As the bus approached the Falcon Street exit it began to excellerate [sic] so that at the time it took the corner off the Warringah Freeway onto Falcon Street it would have been travelling at 80 to 90 km per hour (this being a very common thing for buses to do at this corner to beat the lights). Unfortunately I lost my footing & twisted my back as the bus took the corner. Once the bus straightened up the pain in my lower back & right leg was a 10/10. I got off the bus at the first stop & managed to ring my partner, … , who took [me: sic] straight to Emergency at RNSH. He had to get a wheelchair to move me from the car to Emergency.”[7]

The claimant’s evidence

[7] Claimant's documents at page 3.

The claimant’s statement to SureFact Australia Pty Limited dated 23 February 2020

In evidence, there is a statement by the claimant dated 23 February 2020 made to an investigator engaged by the insurer.[8] I will now refer to the relevant parts of that statement.
[8] Insurer's documents at pages 94-102.
The claimant stated that, on 2 July 2019, after leaving work between about 5.30pm or 5.45pm, she boarded the M30 bus to Mosman at the T bus stand at Wynyard. She described the bus as being one of “those long red bendy buses”[9] (an articulated bus).
[9] Insurer's documents at page 98 at [32].
The claimant stated that the bus left Wynyard at 6.07pm. It was full of passengers, so she moved to the very rear of the bus and stood, grasping onto one of the straps that hung down from a metal bar near the ceiling that ran along the length of the bus. At about 6.30pm, the bus was travelling along the Warringah Freeway and as it turned right into Falcon Street, it accelerated to about 80kmph to 90kmph in order to beat the traffic lights. As the bus was turning, she lost her footing and twisted her lower back. She almost immediately felt pain in her lower back and right leg and rated the pain as 10/10.
The claimant stated that she was in so much pain that she got off the bus at the next bus stop. She exited from the door towards the back of the bus and so, did not speak to the driver. She just had to get off the bus because of the pain and was not thinking about too much else. She was in tears with the pain as soon as she got off the bus. She could barely stand. She telephoned her partner and asked him to pick her up. Her partner drove her straight to Royal North Shore Hospital. He got her a wheelchair from inside the hospital, assisted her out of the car and took her into the emergency department in a wheelchair.

The claimant’s statement dated 11 November 2024

In evidence, there is an evidentiary statement provided by the claimant to her lawyers dated 11 November 2024.[10] I will now refer to the relevant parts of that statement.
[10] Claimant's documents at 25-47.
The claimant stated that, between about 6.30pm and 7.00pm on 2 July 2019, she was travelling on the M30 bus on her way home from work. She was standing at the rear of the bus with her left hand through a strap which hung down from above her.
The claimant stated that the bus was running about 30 minutes late and travelled at high speed across the Sydney Harbour Bridge. As the bus approached the Falcon Street, Neutral Bay exit on the Warringah Freeway and commenced turning right onto Military Road, it did not slow down. This caused the back of the bus to swing wildly resulting in her losing her footing and twisting her back. Immediately after the incident, she suffered incredible pain. She got off the bus at the next stop.
The claimant stated that, after getting off the bus, she telephoned her partner and he came to pick her up and drove her to Royal North Shore Hospital. As a result of the accident, she injured her lower back and also developed a psychological disorder.

The claimant’s oral evidence

In response to questions asked by Ms Gumbert in respect of the incident on the M30 bus on 2 July 2019, the claimant stated:
(a)    she was standing sideways right at the back of the articulated bus holding onto a strap made out of thick material;
(b)    the bus came off the Warringah Freeway at high speed causing the back of the bus to swerve towards the gutter out of its lane;
(c)    she was thrown violently as the bus went towards the gutter;
(d)    the bus swerved back and she was thrown violently in the opposite direction;
(e)    she was unable to get her left hand out of the strap and she ended up dangling from it;
(f)    passengers around her screamed as the bus swerved one way and then the other;
(g)    the incident occurred quickly;
(h)    she had never experienced being thrown as violently on an M30 bus;
(i)    she never expected the back of the bus to swing, and
(j)    she was in absolute agony from pain in her back and legs, especially the right leg, immediately after the incident.
In response to questions asked by Mr Kelleher SC in respect of the incident on the M30 bus on 2 July 2019, the claimant stated:
(a)    she used to get the M30 bus and observed that bus drivers would regularly speed up to beat the traffic lights at the end of the Warringah Freeway off ramp and Falcon Street;
(b)    the bus was a double articulated bus;
(c)    the speed of the bus at about the time of the incident referred to in her evidentiary statement was only an estimate but she knew that it was going fast, faster than 50kmph;
(d)    there is a sweeping right hand turn from the Warringah Freeway off ramp into Falcon Street;
(e)    she was standing sideways at the time;
(f)    the bus swung towards the gutter on the Neutral Bay side and then swung back into the other lane;
(g)    she had never experienced the back of the bus swing out before;
(h)    she did not know if anyone else stumbled or fell at the time of the incident;
(i)    she was not sure what she was doing with her right hand and conceded that it was possible that she was holding a mobile telephone, and
(j)    she denied not being prudent at the time of the incident and disagreed that, if she had been holding her mobile telephone in her right hand, it would have been prudent to put it down.

Mr Markos Tilaye’s evidence

In evidence, there is a transcript of an audio-visual interview recorded on 8 June 2021 between Mr David Hargraves, an investigator engaged by the insurer and Mr Markos Tilaye, the driver of the subject M30 bus on 2 July 2019.[11]
[11] Insurer's documents at pages 103-117.
Mr Tilaye stated that he had been a bus driver for 11 years. He had been employed by State Transit and was now employed by Transit System Australia. He held an HR class licence.
Mr Tilaye stated that the last traffic infringement he received was for speeding four years earlier and that he had never had his licence cancelled or been disqualified from driving. He had been driving for about 25 years and was an experienced driver.
When questioned about the incident on the M30 bus on 2 July 2019, Mr Tilaye stated that he had made enquiries of his supervisor, who had confirmed that he was the driver of that bus; that it was a 2000 model Volvo; that its registration number was 2316ST; that the route commenced at Sydenham railway station and ended at Taronga Zoo, via the Sydney CBD and over the Sydney Harbour Bridge. He identified one of the city bus stops as stand T at Wynyard railway station.
Mr Tilaye stated that, after crossing the Sydney Harbour Bridge, the bus exited the Warringah Freeway at Falcon Street. It was put to him that the claimant stated that the bus he was driving accelerated to 80kmph to 90kmph at the time it took the corner of the Warringah Freeway and turned right onto Falcon Street. He denied that it was possible to travel at such a speed turning onto Falcon Street. He added that the bus had a speed limiter on it which prevented it from exceeding 80kmph.
Mr Tilaye confirmed that the M30 bus was an articulated bus and that it could have been about 19 metres in length. If the bus had been travelling at the speed alleged, it would have tipped. Further, such speed could not be achieved on a loaded bus on a freeway. The maximum speed in a straight line would be 70kmph. He confirmed that there was no way a right-hand turn could be made from the Warringah Freeway exit onto Falcon Street at even 60kmph or 50kmph. The speed would have to be lower than that.
Mr Tilaye stated that, at 6.30pm in July, it would have been dark. The bus would have been full because it was peak hour. He stated that he did not recall any incident happening on the bus. If there was an incident on the bus, it would have been videoed. If someone complained of something that had occurred, he would press an incident button which would highlight the period 10 minutes before and 10 minutes after he pressed the button. Further, he would report the incident on the bus radio to the bus radio room. No one came to him to report an incident where they had sustained an injury because of reckless driving or the like. Neither he nor his supervisor could locate any documentation that supported an incident occurring on the bus at 6.30pm on 2 July 2019. He also confirmed that there was no video footage of any incident on the bus on 2 July 2019.

The relevant legislation and legal principles

The insurer bears the onus of proving contributory negligence on the part of the claimant.
In its written submissions dated 20 November 2024, the insurer applied the wrong legal test in respect of contributory negligence in this case as it is a no fault accident. The authorities that the insurer relied on in those written submissions have no application in a no fault accident case where there can be no apportionment between a plaintiff and defendant.
The correct test for contributory negligence in a no fault accident claim under the Motor Accidents Compensation Act 1999 was set out by the Court of Appeal in Axiak v Ingram[12] (Axiak). The same test is applicable in a no fault accident under the MAI Act.
[12] Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 at [83]-[85].
In Axiak, Tobias AJA stated:
“83.   I would accept the respondent's submission that the exercise called for in Podrebersek can have no application to a case such as the present. Part 1.2 of the Act proceeds upon the assumption that the defendant driver is not at fault. Accordingly, comparisons of culpability and of the relevant importance of the acts of the parties in causing the first appellant's injuries is inappropriate.
84.    I would also accept the respondent's submission that the deeming provision of s 7B(1) has no part to play in the present exercise. That is because it is simply impossible to determine the degree of fault which is to be attributed to the driver which, as submitted by the respondent, may be assumed to be minuscule. Although I accept that submission, it does no more than illustrate the inappropriateness of applying the principles in Podrebersek.
85.    It follows that the concept of "contributory negligence" in s 7F of the Act has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injuries cases. This can be done consistently with the objectives of the legislation by inquiring how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety. The reduction of damages under Division 1 of Part 1.2 by reason of contributory negligence will therefore be determined by assessing the extent to which the plaintiff departed from that standard.”
Accordingly, in the circumstances of this case, I am to inquire how far the claimant had departed from the standard of care she was required to observe in the interests of her own safety.

Submissions

The insurer’s submissions

The insurer admitted that the motor accident was a blameless accident but alleged contributory negligence of 25% on the grounds that the claimant:
(a)    failed to maintain a proper hold;
(b)    failed to monitor and pay attention to the bus’s movements;
(c)    failed to ensure that she was standing safely on a moving bus;
(d)    failed to ensure that she maintained a safe stance on a moving bus, and
(e)    failed to exercise reasonable care and safety.
The insurer relied on the transcript of an audio-visual interview recorded on 8 June 2021 between Mr Hargraves, an investigator and the relevant bus driver, Mr Tilaye.

There was no evidence that Mr Tilaye drove negligently and he had no recollection of the accident. Mr Tilaye’s evidence was that he was unable to drive in excess of 80kmph because of a speed limiter installed on the bus.
Fault is deemed by reason of the blameless provisions and the insurer acknowledged that Mr Tilaye bears greater responsibility for the accident. However, the claimant was not without culpability.
At the assessment conference, Mr Kelleher SC conceded that, in its written submissions dated 20 November 2024, the insurer had applied the wrong test in respect of contributory negligence in a no-fault accident situation.
The claimant was familiar with the area and the bus route. She alleged that the bus would have been travelling at 80kmph to 90kmph as it made its turn (which was disputed) and that this was a very common thing for buses to do at this corner in order to beat the traffic lights. Despite forming such a view, the claimant failed to take reasonable care and safety for herself.
A finding of 25% contributory negligence is appropriate in the circumstances.

The claimant’s submissions

The insurer bears the onus of proving contributory negligence.
The insurer’s allegations of contributory negligence on the part of the claimant are devoid of merit.
Mr Tilaye’s evidence had no probative value. He could not remember the accident. His evidence was nothing more than his reconstruction of what he thought may have occurred. Much of his evidence was conjecture.
In any event, it did not matter whether the bus was travelling at 80kmph or 50kmph to 60kmph because liability had been admitted by the insurer on the basis that it was a no-fault accident.
The claimant was holding onto a strap that was provided for standing passengers to hold onto. In the insurer’s allegations of contributory negligence, it was not clear what the insurer meant by way of “proper” hold or in what way the claimant’s hold was not “proper”.
In the insurer’s allegations of contributory negligence, there was no explanation of the basis for the alleged duty on the claimant to “monitor and pay attention to the bus’s movements” and there was no evidence that she was not doing so in any event.
In the insurer’s allegations of contributory negligence, there was no explanation of what “standing safely” meant or what the claimant was supposed to be doing differently to what she was actually doing, which was standing and holding onto the provided strap.
In the insurer’s allegations of contributory negligence, there was no explanation of what a “safe stance” was, or that the claimant had not adopted a safe stance at the time of the accident.
In the insurer’s allegations of contributory negligence, there was no explanation of how the claimant failed to exercise reasonable care and safety.
Importantly, in respect of each of the insurer’s allegations of contributory negligence, there was absolutely no evidence that had the claimant done anything differently, it would have made any difference to the injuries she ultimately sustained.
Even if the insurer could prove some departure from the standard of care the claimant was required to exercise for her own safety (which it cannot), the insurer cannot prove that any such departure was causative of her injuries in any way.
In the circumstances of this case, the correct test for contributory negligence was set out by the Court of Appeal in Axiak, that is, that the reduction of damages under Division 1 of

Part 1.2 of the MAI Act by reason of contributory negligence, will be determined by assessing the extent to which a claimant departed from that standard.
The insurer’s allegations of contributory negligence completely ignored the claimant’s unchallenged evidence that she was holding onto a strap.
Therefore, the insurer’s sole basis for alleging contributory negligence was unsupported and directly contradicted by the only evidence that can go to that issue. The onus of establishing a departure from a reasonable standard of care was not discharged.
Further, the insurer had adduced no evidence to establish that anything the claimant was alleged to have failed to do made any difference to the injuries she sustained.
The allegations of contributory negligence should be dismissed.

Consideration and findings

The correct test for contributory negligence in a no-fault accident claim is the test set out in Axiak, that is, I am to inquire as to how far the claimant had departed from the standard of care she was required to observe in the interests of her own safety.
I accept the claimant’s submission that Mr Tilaye’s evidence had no probative value. He was unaware or was unable to recall any incident on his bus on the day and at the time in question. Much of his evidence was conjecture and accordingly, I give it little weight.
I accept the claimant’s evidence that, at all relevant times, she was standing sideways right at the back of the articulated bus with her left hand holding onto a strap made out of thick material that hung down from a metal bar near the ceiling that ran along the length of the bus.
There is no dispute that, shortly before the accident, the articulated bus on which the claimant was a passenger, left the Warringah Freeway using the Falcon Street exit ramp.
I accept the claimant’s evidence that, there was a sweeping right hand turn from the Warringah Freeway off ramp into Falcon Street.
There was a dispute about the speed at which the articulated bus was travelling on the exit ramp as it made the right hand turn into Falcon Street. In her application form, the claimant stated that the bus accelerated to between 80kmph and 90kmph at the time it took the corner off the Warringah Freeway onto Falcon Street. However, in her oral evidence, she clarified that the speed of the bus at about the time of the incident referred to in her evidentiary statement was only an estimate but she knew that it was going fast, faster than 50kmph.
At whatever speed the articulated bus was travelling when negotiating that sweeping right hand turn, I accept the claimant’s evidence that, during the course of that turn, the back of the bus unexpectedly swung one way and then the other way causing her to be thrown violently one way and then violently back the other way, leaving her dangling from the strap. I also accept her evidence that she was unable to get her left hand out of the strap immediately after the incident.
I reject the insurer’s allegation that the claimant failed to maintain a proper hold of the strap. The claimant was holding onto a strap made out of thick material that was specifically provided for standing bus passengers. She was holding onto the strap with her left hand. She was left dangling from the strap after the incident. She did not recall whether she had her mobile telephone in her right hand. There was no evidence that she did. In any event, she was holding onto the strap prior to, during and after the incident. There was no evidence to suggest that it would have made any difference to the mechanism of the incident if the claimant had had something in her right hand.
I reject the insurer’s allegation that the claimant failed to monitor and pay attention to the bus’s movements on the basis that she regularly travelled on that bus route. I accept the claimant’s evidence that she had never experienced the back of an articulated bus swing out before on that sweeping right hand turn. There was no evidence to suggest the claimant was not monitoring and paying attention to the bus’s movements. Further, there was no evidence that it would have made any difference to the mechanism of the incident if she had been. The bilateral swing of the articulated bus was unexpected and violent.
I reject the insurer’s allegation that the claimant failed to ensure that she was standing safely on a moving bus. There was no evidence that the claimant was not standing safely on the moving bus at the time of the incident. She was standing sideways right at the back of the articulated bus with her left hand holding onto a strap.
I reject the insurer’s allegation that the claimant failed to ensure that she maintained a safe stance on a moving bus. There was no evidence that the claimant had not adopted a safe stance at the time of the incident. She was standing sideways right at the back of the articulated bus with her left hand holding onto a strap.
Finally, there was no evidence that had the claimant done anything differently, it would have made any difference to the mechanism of the incident or to the injuries she sustained.
Accordingly, I am not satisfied, for the reasons stated above, that the claimant had departed from the standard of care she was required to observe in the interests of her own safety.
I find that the insurer has failed to discharge its onus of proving contributory negligence on the part of the claimant.

THE NATURE AND EXTENT OF THE INJURIES AND INCAPACITY

Application for personal injury benefits

In the application form the claimant described the events immediately following the motor accident as follows:
“Once the bus straightened up the pain in my lower back & right leg was a 10/10. I got off the bus at the first stop & managed to ring my partner, … who took [sic: me] straight to Emergency at RNSH. He had to get a wheelchair to move me from the car to Emergency.”[13]
[13] Claimant's documents at page 3.
The claimant then described her injuries as a result of the motor accident as follows:
“Acute lower back pain radiating predominantly down right leg to my foot & also radiating intermittently down my right leg. Initially I couldn’t walk. Now I can slowly & painfully with a walking stick. I am also prone to falls.”[14]
[14] Claimant's documents at page 3.
In the application form, the claimant denied that she was suffering an illness or injury affecting the same or similar parts of her body at the time of the motor accident.[15]
[15] Claimant's documents at page 4.

The claimant’s evidence

In evidence, there are written statements by the claimant dated 23 February 2020 given to the insurer’s investigator (statement to the investigator)[16] and 11 November 2024 given to her legal representative (evidentiary statement).[17] She also gave oral evidence at the assessment conference.
[16] Insurer’s documents at pages 94-102.
[17] Claimant's documents at pages 25-47.
I will refer to the relevant parts of her statement to the investigator, her evidentiary statement and her oral evidence.

Statement to insurer’s investigator

In her statement to the investigator, the claimant provided a brief personal history.
The claimant provided a history of her employment with Bell Partners which had commenced on 1 July 2019, the day before the motor accident. She also provided the background to the termination of that employment on 1 August 2019 and the claim she had made against that legal firm in respect of her termination.
The claimant provided a history of her employment from October 2017 to the time she commenced with Bell Partners.
The claimant provided a history of the motor accident and its immediate aftermath that was consistent with the evidence.
The claimant disclosed her back injury on 25 April 2005.

Evidentiary statement

In her evidentiary statement, the claimant provided a concise history of her early life.[18]
[18] Claimant's documents at pages 25-26 at [5]-[12].
The claimant stated that she graduated with a Bachelor of Laws degree in March 1996 and was admitted as a legal practitioner in New South Wales in August 1996.
The claimant stated that she was first diagnosed with depression following the break-up of her marriage in July 2003. She was prescribed antidepressant medication and ceased taking such medication in the second half of 2006 following the finalisation of her divorce and property settlement. Despite suffering from depression, she was able to work full-time. In about March 2006, she experienced a very difficult time with her ex-husband and it was during this period that she consulted her general practitioner, Dr George Quittner, for counselling to vent her frustrations in respect of her marriage break-up and ongoing issues with her ex-husband.
The claimant stated that, on 25 April 2005, she boarded a flight in Bangkok and injured her lower back when lifting her carry-on luggage into the overhead locker of the aircraft. She was diagnosed with spondylolisthesis at L5/S1. She underwent a spinal fusion at L5/S1 at the end of November 2005 and was off work until early February 2006. She returned to full-time work and was often working up to 14 hours. The claimant experienced “a rough 3-4 years following the spinal fusion in terms of pain.”[19] Her back issues eventually settled to the point where they no longer gave her any significant issues. She would occasionally experience minor aches during thunderstorms.
[19] Claimant's documents at page 27 at [27].
The claimant stated that, in April 2014, she suffered a further aggravation to her back when she was folding washing and bent down to pick up a sock. She consulted her general practitioner and was prescribed medication and referred to Dr Nathan Taylor, pain specialist. She was off work for two weeks and one week later, was made redundant. The redundancy was unrelated to her back condition. In July 2014 she underwent radiofrequency denervation at North Shore Private Hospital. At this time, she was back on her feet and her back was not worrying her.
The claimant stated that, in July 2014, her partner (who was bipolar) moved in to live with her and her daughter. In early April 2015, she was going through a rough time. She went to Hong Kong with her mother and daughter for a holiday. Whilst she was away, her partner had moved out of the home and went missing with one of her dogs. He was found after one week. At about this time, she also had an argument with her boss at a legal firm about being overloaded with work. She was working 12-14 hour days and was unable to get on top of her workload. One night, she overdosed on mersyndol and temazepam and was admitted to Royal North Shore Hospital. She was then transferred to Northside Clinic and remained off work for about four weeks. She was prescribed antidepressant medication, returned to

full-time work and was able to cope with her workload.
The claimant stated that, in March 2017, she joined another legal firm as a managing partner. She was promised a fast-track to equity in the practice within 12-18 months. The employment of a lawyer in the firm was terminated in April 2017 which resulted in her “workload being astronomical” [20]and she was regularly working 60-70 hour weeks. She also experienced difficulties with a director and partner in the business and became aware that there were financial difficulties. Further, she learnt that she had been the fifth managing partner of the firm within six months. At short notice, she was informed that an experienced commercial lawyer was taking four weeks leave at the end of July 2017. All of these matters led to her feeling that she had “hit a wall.”[21] In August 2017, she again attempted suicide and overdosed on her antidepressant medication and alcohol. She was admitted to Royal North Shore Hospital for about four to five days.
[20] Claimant's documents at page 28 at [48].
[21] Claimant's documents at page 29 at [56].
The claimant stated that, following her discharge from Royal North Shore Hospital, she returned to full-time work but was given one month’s notice of her termination in September 2017 because she was not getting on with clients. She ascertained that the commercial lawyer referred to above was to take over her role as managing partner. She and her father attended the firm’s office and packed up her files and belongings. She then admitted herself to Northside Clinic where she was prescribed antidepressant medication, which she has remained on ever since.
The claimant stated that she incorporated her own legal practice and returned to work in October 2017 “without a hitch.”[22] In March 2018, she joined Lawyers on Demand and in April 2019, she joined Dovetail Legal Solutions, where she worked part time and was sent to various in-house roles. At this time, she was not experiencing any significant psychological issues and managed to work 70 hour weeks sometimes.
[22] Claimant's documents at page 30 at [66].
The claimant stated that, on 21 March 2018, she consulted her general practitioner complaining of annoying back pain. She was issued with a prescription for gabapentin and referred to Dr Taylor. The following day her period started and the back pain resolved within a day or two, much to her embarrassment.
The claimant stated that she woke up with a locked neck on Boxing Day 2018. In late December 2018 and in 2019, she was prescribed Panadeine Forte. Whilst it took “a couple of months” to fully recover, her neck did not “hold her back.”[23]
[23] Claimant's documents at page 31 at [70].
The claimant stated that, on 27 March 2019, Dr Mark Cross, psychiatrist, arranged her short admission to Northside Clinic. She explained that:
“My partner, … and my daughter had been arguing relentlessly and I had been forced to cancel the sale campaign for my home after the real estate agency sent a text to all potential buyers and myself indicating that the sale price had been reduced [sic: to] $1.85 million when I had an agency agreement that stated the sale price was $2.2 million. This was done without any discussion with me.”[24]
[24] Claimant's documents at page 31 at [71].
The claimant stated that she was discharged from Northside Clinic on 5 April 2019. On 14 April 2019, she presented to Royal North Shore Hospital with suicidal ideation. On 21 May 2019, Dr Cross arranged for another short admission to Northside Clinic and she was discharged on 7 June 2019.
In her evidentiary statement, the claimant provided a detailed employment history.[25]
[25] Claimant's documents at pages 31-38 at [76]-[141].
The claimant stated that, after the motor accident, she was in immediate and incredible pain. Her partner picked her up from Ben Boyd Road near the corner of Military Road, Neutral Bay and drove her to Royal North Shore Hospital. She was transferred from that hospital to North Shore Private Hospital until she was discharged on 13 July 2019. On her discharge from hospital, she could barely walk. She tried to go back to work but found it impossible.
The claimant stated that, as a result of the motor accident, she sustained an injury to her lower back and developed a psychological disorder.
In her evidentiary statement, the claimant provided a detailed list of her symptoms and disabilities resulting from the motor accident.[26]
[26] Claimant's documents at pages 39-40 at [156].
The claimant stated that, on 15 July 2019, she attempted to return to work at Bell Partners. She was on significant amounts of pain-relieving medication which made it difficult for her to concentrate and remember things. Over the next two weeks, she did the best she could but was struggling. Her work performance was significantly affected by her pain. On 1 August 2019, she received a text message from her employer advising that her employment had been terminated. She then started to take steps to start up her own firm again, which took about one week to 10 days. She still had some clients and was trying to retain others. She found herself struggling to get through the work and was taking too long to perform the work. She was making more mistakes than usual. She ultimately realised that she was not going to be able to continue.
The claimant stated that her main struggle was with her physical injuries and the effect of the pain relieving medication she was taking. The medication caused severe nausea due to her opiate intolerance. The pain fatigued her.
The claimant stated that, on 2 August 2019, she attended North Shore Private Hospital for radiofrequency denervation to relieve the pain in her lower back. The procedure was unsuccessful. Between about 7 August 2019 and 20 August 2019, she underwent rehabilitation at Hunters Hill Private Hospital under Associate Professor Arun Aggarwal, neurologist. At that time, she could barely walk and suffered excruciating shooting pain in her lower back and legs. In September 2019, her lower back and leg pain was so severe that she was conveyed by ambulance to the emergency department of Royal North Shore Hospital where she was given additional pain relief.

The claimant stated that she and her partner broke-up about two months after the motor accident (September 2019). She did not have time to give the break-up any thought and just wanted to put one foot in front of the other.
The claimant stated that, in September 2019, a recruiter arranged for her to have an interview with Metis Law. However, she “stuffed up the interview due to my difficulty concentrating and becoming confused.”[27] At the time, she was so unwell that she did not have time to think about her psychological issues. In late September 2019, she contacted her mortgagee seeking financial hardship assistance because she was unable to pay the mortgage on her home.
[27] Claimant's documents at page 41 at [171].
The claimant stated that, at the end of 2019, she listed her home for sale because she had no money to pay the mortgage, household bills, groceries and other expenses. The home eventually sold on 14 February 2020 and settled on 27 March 2020. Her mental health really took a turn for the worse during March 2020. She was devastated at the loss of her home and experienced regular nightmares about the motor accident. She and her daughter moved into a rental property.
The claimant stated that, in early February 2020, she was implanted with a trial spinal cord stimulator for pain relief by Dr Taylor. The trial was successful and a permanent spinal cord stimulator was implanted on 24 February 2020. During the next few months, she experienced some pain free periods.
As she was feeling physically better, the claimant stated that, on 23 March 2020, she commenced a casual contract organised by a recruiter with the Onsite Rental Group as a senior lawyer. The contract finished in early May 2020.
The claimant stated that by mid-April 2020, her back and leg pain was slowly getting worse, leaving her constantly fatigued. She also noticed pain in her hands that caused her difficulties typing. The pain in her hands lessened each time her spinal cord stimulator was reprogrammed.
The claimant stated that, on 20 July 2020, she had a massive flare-up of pain and was shaking uncontrollably. Her daughter drove her to Royal North Shore Hospital where she was admitted into a ward. Dr Taylor attended and arranged for her spinal cord stimulator to be turned off for a day or two as he believed that the shaking had been caused by it. Once the spinal cord stimulator was reset, shaking lessened considerably. On 29 July 2020, she was transferred to Hunters Hill Private Hospital for rehabilitation and was discharged on 12 August 2020.
The claimant stated that, in about August 2020, she started experiencing pain in her right elbow and right ring and little fingers. In December 2020, she began consulting Dr Vanessa Sammons, neurosurgeon, for those symptoms. On 23 December 2020, Dr Sammons performed a right ulnar nerve decompression, which was unsuccessful as the pain in her right elbow, right ring and little finger continued.
The claimant stated that, on 11 March 2021, she experienced another massive flare-up of pain in her lower back and legs as well as a loss of bowel and bladder control. She presented to Royal North Shore Hospital, where she was admitted. On 18 March 2021, she was transferred to North Shore Private Hospital and was discharged on 2 April 2021. At that time, she was on about 17 different medications for her pain and mental health. Dr Taylor and Dr John Parratt, neurologist, indicated that the loss of bowel control was caused particularly by the amount of pain-relieving medication she was taking.
After her discharge from North Shore Private Hospital, the claimant stated that she was struggling to function. She was very confused and not coping very well and so, on 15 April 2021, she was admitted to Northside Clinic until 14 May 2021. During the period of her admission, her intake of gabapentin was reduced and she found that her ability to function had improved and that she was less confused.
The claimant stated that, on 2 July 2021, she again consulted Associate Professor Aggarwal because she continued to experience mild shaking in her hands that became worse when stressed or upset. Associate Professor Aggarwal performed a nerve conduction study that determined her right ulnar nerve was still compressed.
The claimant stated that, on 8 September 2021, she underwent a right ulnar nerve transposition by Dr Sammons.
The claimant stated that, on 12 October 2021, she underwent a lignocaine infusion for pain relief at North Shore Private Hospital. During the course of this admission, she was diagnosed with sciatic neuritis and piriformis inflammation in her right leg. The lignocaine infusion was cut short and she was discharged from hospital on 15 October 2021. On 21 October 2021, she returned to North Shore Private Hospital for treatment of the neuritis and piriformis inflammation and was administered intravenous antibiotics until 28 October 2021. In November 2021, she was diagnosed with hypogammaglobulinemia by Dr Parratt.
The claimant stated that, in December 2021, she was referred to the anorectal biofeedback clinic at Royal North Shore Hospital in respect of the issues with her bowel control. By January 2022, her bowel control had improved by about 50% and such improvement has been maintained to date.
The claimant stated that, on 26 April 2022, she was admitted to North Shore Private Hospital for a lignocaine infusion to reduce pain and was discharged on 1 May 2022. She continued to struggle with depression and anxiety.
The claimant stated that, on 25 July 2022, she was admitted to Northside Clinic for treatment of depression and anxiety. Dr Raj Choudhary was her treating psychiatrist. She was discharged on 12 August 2022.
The claimant stated that, in early September 2022, she noticed a strange bruise on her left ankle and consulted a general practitioner. She underwent an ultrasound that showed a large blood clot in her left calf. On 6 September 2022, she was feeling unwell, lethargic, short of breath and sweating and was admitted to Royal North Shore Hospital. She was diagnosed with a right leg deep vein thrombosis and pulmonary clots. She was discharged on 8 September 2022 on blood thinning medication.
On 4 October 2022, she stated that she was admitted to North Shore Private Hospital under Dr Taylor for a ketamine infusion for the purpose of pain reduction and for the purpose of reducing the amount of pain-relieving medication she was taking. She was discharged on 11 October 2022.
The claimant stated that, on 7 November 2022, she commenced attending the ADAPT program at Royal North Shore Hospital for people living with chronic pain. The program was scheduled to run until 25 November 2022. However, the program content took a toll on her both physically and mentally and she missed the last four days of the program due to lack of bowel control, fatigue and exhaustion. Her mental health continued to decline further and further. She gave up any hope that she would be able to return to work as a lawyer.
The claimant stated that, on 10 February 2023, she stepped off a gutter onto the road when her right ankle gave way causing her to fall backwards and sprain her left ankle and right wrist.
Between 20 March 2023 and 26 March 2023, the claimant stated that she was admitted to North Shore Private Hospital for another ketamine infusion and that between 17 July 2023 and 19 July 2023 she was admitted to the same hospital for a steroid infusion.
The claimant stated that, on 28 July 2023, she took an overdose of Palexia SR 50mg tablets and was admitted to Royal North Shore Hospital until 31 July 2023. She was then admitted to Northside Clinic from 1 August 2023 to 1 September 2023.
Between 20 November 2023 and 26 November 2023, the claimant stated that she was admitted to North Shore Private Hospital for another ketamine infusion. Between 17 January 2024 and 19 January 2024, she was admitted to North Shore Private Hospital for a steroid infusion.
The claimant stated that, in May 2024, she was diagnosed with high blood pressure and prescribed blood pressure medication.
The claimant stated that, over the past four to five months, she had been experiencing more and more back and leg pain. She was prescribed Norspan patches which caused nausea. There were times when she spent the day throwing up.
The claimant stated that, following the motor accident, she received payments of weekly benefits from the insurer until September 2022. After those payments ceased, she supported herself from her superannuation account benefits until 26 March 2024 when the balance fell below $7,000. She applied for a Centrelink disability support pension and whilst her application was being processed, she received a Centrelink job seeker allowance until her disability support pension was approved on 3 September 2024.
In respect of her plans for retirement, the claimant stated:
“In the absence of injuries I sustained in the motor accident, it had been my intention to work full-time until I reached the age of 70 years, and then to work part-time for a further 5 to 10 years.”[28]
[28] Claimant's documents at page 46 at [247].

Oral evidence

An outline of the claimant’s oral evidence in response to questioning by her counsel, Ms Gumbert, is set out below.
The claimant stated that her lower back was “good” in the year prior to the motor accident. She could not recall whether she consulted doctors or took medication for her lower back during that period. Prior to the motor accident she had “more or less zero pain.”
Sometimes she had “a bit of a backache” when there was a thunderstorm. It was a dull ache which would go away by the time the storm hit. Those backaches would last half an hour. She received no treatment. The pain was like period pain.
A few days before the motor accident she was feeling positive because she was about to start a new job. She was looking forward to it. It was familiar work. “It was great.”
Immediately after the motor accident, she was in absolute agony. She rated the pain in her lower back and legs, especially the right leg, as 10/10 on a visual analogue scale.
She now experiences a continual high level of pain in her lower back. It is like her back is in a vice with crushing and burning pain. The pain goes down her right leg and she rates it as currently being 8/10 on a visual analogue scale.
At 6.30am on the morning of the assessment conference, she applied a Norspan 5mg patch and took two Temgesic tablets and two gabapentin tablets.
An outline of the claimant’s oral evidence in response to questioning by Mr Kelleher SC for the insurer is set out below.
The claimant was taken to various parts of her evidentiary statement pre-dating the motor accident and then, to related parts of the clinical records in evidence. In some instances, she could not recall the attendances and/or the contents of the entries referred to and in others, she conceded the contents of the entries she was referred to. In relation to the contents of those entries that she was unable to recollect or were inconsistent with her evidence, she stated that she did not have access to her clinical records when she gave her evidentiary statement.
When it was put to the claimant that she was being misleading, she denied it and said:
“If I did have back pain from time to time (after 21 March 2018), at best, I would describe it as being annoying.”
The claimant denied having to be careful with her back prior to the motor accident and repeated that her back pain before the accident was an annoying pain.
An outline of the claimant’s oral evidence in response to further questioning by Ms Gumbert is set out below.
The claimant stated that her memory is “shocking” and that gabapentin and pain medication affect her memory. She became very confused when she read through the large volume of material in evidence. At the time of giving her evidentiary statement, she did not have access to her clinical records.
The claimant stated that there was no criticism of her work whilst she was employed by Bell Partners.

The evidence of the treatment providers

The nature of this claim requires a detailed analysis of the medical evidence prior to and following the motor accident.

Relevant pre-accident medical history

On 12 September 2003, the claimant consulted Dr George Quittner, general practitioner, of Avenue Road Medical Practice. They discussed her marital problems at length. Dr Quittner noted that the claimant had separated two months earlier but that she had been at loggerheads with her husband for the past six months. She had lost 6kg in weight. Dr Quittner diagnosed her with depression, provided general advice in respect of a healthy lifestyle, prescribed one Stilnox 10mg tablet nightly and referred her to Ms Jean Pollock for counselling.[29]
[29] Insurer's documents at pages 385-386.
On 27 September 2003, the claimant consulted Dr Rowley, general practitioner, of Avenue Road Medical Practice. Dr Rowley noted that patient support was provided, prescribed Zoloft and provided her with the contact number for Northside Clinic. Dr Rowley also noted that she was depressed and stressed out; that she could not afford the cost of a psychologist; and that she had never taken antidepressants.[30]
[30] Insurer's documents at page 386.
On 29 September 2003, Dr Rowley noted that the claimant had telephoned to advise that she was to attend the Northside Clinic and had an appointment to consult Dr Prem Naidoo, psychiatrist, at that clinic on 3 October 2003.[31]
[31] Insurer's documents at page 386.
On 18 December 2003, the claimant consulted Dr Quittner in respect of a medical condition unrelated to these proceedings. Dr Quittner noted that the claimant stated she was “not keen on Dr Naidoo” and that he would be her “amateur shrink/psychologist.” Zoloft was ceased and he prescribed her one Stilnox 1mg tablet nightly and urged her to exercise.[32]
[32] Insurer's documents at pages 386-387.
Between 6 January 2004 and 25 April 2005, there were numerous entries recorded in the Avenue Road Medical Practice in relation to the claimant’s ongoing marital dispute and related court proceedings, stressors, depression and insomnia. During that period, she medicated with various antidepressants (Aurorix, Avanza and Zoloft), Imovane, Normison and Stilnox (for her sleep disturbance).[33]
[33] Insurer's documents at pages 387-393.
On 25 April 2005, the claimant consulted Dr Quittner and reported severe low back pain radiating down the right leg which began after lifting heavy bags on her way back from Bangkok. She reported having similar pains in the past but not as severe. Dr Quittner diagnosed her with mechanical back pain and prescribed Panadeine Forte 500mg/30mg tablets and Ducene 5mg tablets.[34]
[34] Insurer's documents at pages 393-394.
On 9 May 2005, the claimant consulted Dr Quittner complaining of low central back pain that was worse in the morning and radiated down her leg to her right foot. The right sole of her foot felt bruised and there was tingling in her foot. Weight-bearing made the pain worse. Dr Quittner referred her for a CT scan of her lumbar spine and prescribed Mersyndol Forte 450mg/30mg/5mg tablets.[35]
[35] Insurer's documents at page 394.
On 11 May 2005, the claimant underwent a CT scan of her lumbar spine which demonstrated no focal disc herniation, L5 defects with chronic L5/S1 spondylolisthesis and bilateral L5/S1 foraminal narrowing.
On 31 May 2005, Dr Quittner referred the claimant to Dr Jean-Pierre Halpern, consultant neurologist.[36]
[36] Insurer's documents at page 395.
On 16 June 2005, the claimant consulted Dr Halpern who referred her for a lumbar spine MRI scan and recommended she undergo bilateral facet joint injections and a right periradicular injection and agreed to her being referred to Dr Andrew Kam, neurosurgeon and spinal surgeon.
On 19 June 2005, the claimant underwent a lumbar spine MRI scan that demonstrated a grade II spondylolisthesis at the lumbosacral junction with right foraminal stenosis.
On 20 June 2005, the claimant underwent the CT guided injections recommended by Dr Halpern.
On 28 June 2005, Dr Halpern reported to Dr Quittner that the claimant had experienced a degree of relief from the right lateral recess L5/S1 epidural injection and bilateral L5/S1 facet joint injection. There was likely to be continued improvement over the following two to three weeks. He made no arrangements for the claimant to consult him again.[37]
[37] Insurer's documents at page 704.
On 4 August 2005, the claimant consulted Dr Kam on the referral of Dr Halpern. He took a history of the claimant’s injury on an aircraft on 25 April 2005. The claimant complained of ongoing lower back and leg symptoms and that she had not been able to return to her normal activities and lifestyle. He reviewed her lumbar MRI scan and opined that it revealed the presence of a grade I spondylolisthesis involving the L5/S1 level resulting in quite severe foraminal stenosis at the right L5/S1 level secondary to a pars interarticularis defect. Dr Kam noted that the claimant had recently undergone a right-sided L5/S1 cortisone injection with partial relief. He recommended that she proceed with a second course of injections to try and improve her symptoms further. However, if she continued to suffer from recurring pain, surgery to reconstruct the spondylolisthesis should be contemplated.[38]
[38] Insurer's documents at pages 702-703.
On 25 August 2005, the claimant underwent a repeat CT guided interlaminar epidural injection at L5/S1 on the right side and bilateral L5 pars blocks as recommended by Dr Kam.[39]
[39] Insurer's documents at page 676.
On 10 October 2005, the claimant underwent a CT guided right L5/S1 periradicular injection; a right L5/S1 pars block; and due to some left-sided symptoms, a left L5/S1 periradicular injection and pars block.
On 1 November 2005, Dr Kam reported to Dr Quittner that the claimant had failed all conservative treatment despite having undergone three cortisone injections. He noted that she was not coping very well with her pain and it was now affecting her ability to look after her young daughter. The claimant wished to proceed with surgery and so, Dr Kam intended to seek approval from the relevant insurer.[40]
[40] Insurer's documents at page 701.
On 30 November 2005, the claimant underwent a posterior lumbar interbody fusion and pedicle screw fixation involving the L5/S1 level by Dr Kam. She made an uneventful recovery.[41]
[41] Insurer's documents at page 694.
On her first post-operative visit to Dr Kam on 19 January 2006, the claimant advised that the surgery had significantly improved her symptoms and that she was ambulating without any need of analgesia. Dr Kam recommended a gradual return to normal lifestyle and work.[42]
[42] Insurer's documents at pages 694-695.
On 17 March 2006, the claimant consulted Dr J Telfer, senior staff specialist in psychiatry at the Cremorne Community Health Centre, on the referral of Dr Quittner. Dr Telfer noted that the claimant had many stressors, especially, impending legal proceedings recently initiated by her estranged husband against a background of an acrimonious marital breakdown and a dispute over their daughter. Dr Telfer also noted that the claimant had suffered from dysthymia and anxiety fluctuating in intensity for several years that had not been relieved by various antidepressants. She suffered from insomnia for which she took Stilnox or drank up to a bottle of wine at night. She had not experienced suicidal ideas. The current situation and past history was marked by many adversities but Dr Telfer concluded that the claimant would cope with them better if she did not consume any alcohol and if she could take an effective antidepressant. Dr Telfer prescribed escitalopram 20mg to be augmented by olanzapine 1.25mg.[43]
[43] Insurer's documents at page 769.
On 23 March 2006, the claimant consulted Dr Kam reporting good results following the surgery and that she had been able to return to work almost full time. He noted that she was still quite stiff and tender around the paraspinal muscles adjacent to the incision. She underwent a plain X-ray of the lumbar spine (21 March 2006) that demonstrated the implants were in good position.[44]
[44] Insurer's documents at page 695.

On 7 September 2006, the claimant consulted Dr Kam reporting that shortly prior to the consultation, she developed increasing intense symptoms in her right leg. A repeat X-ray of her lumbar spine (5 September 2006) showed the implants to be in good position and the bone fusion across the interbody space had healed almost completely. He suggested that the claimant commence an exercise program to strengthen her lower back muscles as well as her abdominal muscles to try and “improve her work commitment.”[45] Dr Kam advised the claimant to undergo a CT scan of her lumbar spine if she experienced any further problems.[46]
[45] Insurer's documents at page 695.
[46] Insurer's documents at page 698.
The last entry recorded in the claimant’s Avenue Road Medical Practice clinical records was dated 7 January 2008.[47]
[47] Insurer's documents at page 418.
On 15 June 2009, the claimant consulted Dr Newman Harris, specialist in pain medicine and consultant psychiatrist, on the referral of Dr Susan Ridley, general practitioner, of Crows Nest Medical Practice. Dr Harris noted that, following the surgery to the claimant’s lumbar spine by Dr Kam, her pain had reduced and she could do much more but had since developed sciatica on the right side which travelled down the lateral aspect of her right leg to the knee. The leg pain had a burning and throbbing quality. The claimant was not sleeping well. Dr Harris noted that the claimant’s pain management was, essentially, passive. She did little exercise. She took six to eight tablets of digesic and tramadol per day. She consulted Ms Amanda Ferguson, psychologist, on a regular basis but it did not seem that the claimant put into practice the basic psycho-behavioural principles of pain management. Dr Harris opined that the first goal was to improve the claimant’s sleep and ensure a review by Dr Kam.[48]
[48] Insurer's documents at pages 679-680.
On 23 July 2009, the claimant consulted Dr Kam on the referral of Dr Ridley. Dr Kam noted that, over the last three years, the claimant’s symptoms of right-sided leg pain and back pain had gradually increased in intensity and frequency. She was quite reliant on the use of Endep which caused her to gain almost 30kg in weight. Prior to the consultation, Dr Kam had arranged a number of investigations. The lumbar spine CT scan, MRI scan and plain X-rays showed the implants to be in good position with no evidence of movement or loosening. There were no new degenerative changes. The only positive finding was a positive bone scan in respect of the L4/5 facet joints bilaterally. However, this did not explain her severe right-sided leg symptoms. He recommended she undergo a bilateral L4/5 facet joint injection to ascertain whether there was a facet joint component to her current symptoms.[49]
[49] Insurer's documents at page 691.
On 28 July 2009, the claimant underwent a CT guided bilateral L4/5 facet joint injection.[50]
[50] Insurer's documents at page 675.
On 21 October 2009, the claimant consulted Dr Charles Brooker, senior staff specialist, at the Pain Management and Research Centre on the referral of Dr Harris. Dr Brooker noted that the claimant had abandoned several medications due to side-effects, namely, Lyrica causing hyperactivity; Endep causing weight gain; and OxyContin causing nausea. He observed that the claimant had low back pain and bilateral lower limb pain with a background of spinal fusion surgery for spondylolisthesis at L5/S1. He thought she may get some analgesia from medial branch blocks and subsequent radiofrequency. He indicated that the chance of the diagnostic blocks being positive was quite low because of her previous failure to respond to facet joint injections. He recommended that she consider entering the centre’s ADAPT program.[51]
[51] Insurer's documents at pages 685-690.
On 8 December 2009, the claimant attended the Pain Management and Research Centre for the medial branch blocks recommended by Dr Brooker. Dr Brooker noted that the claimant got good relief on the left side and little relief on the right. He tried to provoke pain by forward flexion and then left-sided pain was not significant but forward flexion was reduced to its normal level by right-sided pain. He opined that further diagnostic blocks would be just as confusing and suggested radiofrequency treatment.[52]
[52] Insurer's documents at page 684.
On 15 April 2014, the claimant consulted Dr Diana Merhi, general practitioner, of The Mosman Practice reporting that, on Sunday night, she was folding washing, bent down to pick up a sock and felt severe right sided lower back pain running down her right leg. Dr Merhi prescribed one temazepam 10mg tablet daily and referred her to a specialist.[53]
[53] Insurer's documents at page 550.
On 7 May 2014, the claimant consulted Dr Jonathan Ball, neurosurgeon and spinal surgeon, reporting the onset of severe pain as she bent and twisted to pick something up. She described the pain as extending through her buttock down the side of her right thigh and calf with some numbness and paraesthesia in the outside of the foot and some painful sensation on the sole of her foot. Dr Ball reviewed recent lumbar CT and MRI scans that demonstrated the presence of a fusion at the L5/S1 level; solid bony bridging at that level; no evidence of any hardware failure; no evidence of any recurrent residual compression of the nerves at that level; the L4/5 disc appeared relatively preserved; there were degenerative changes in the L2/3 and L3/4 discs; there were some small disc bulges presented at these levels but no significant nerve root compression in the canal or exit foramen. Dr Ball opined that it may be that she had degenerative changes above her previous fusion that could be giving her referred pain down her leg. He recommended bilateral facet joint injections at the L4/5 level as well as a nuclear medicine bone scan to look for any other possible source of pain.[54]
[54] Insurer's documents at pages 705-706.
On 11 June 2014, the claimant consulted Dr Taylor on the referral of Dr Merhi. Dr Taylor noted that the claimant suffered back problems that dated back to an injury in April 2005, when she was moving luggage above her head on an aircraft. She had a sudden onset of back and left leg pain and was subsequently reviewed by Dr Kam, who performed an L5/S1 decompression and fusion. Although this relieved her symptoms tremendously, she still did suffer with some low back pain over the years. She was reviewed by Dr Brooker and underwent radiofrequency denervation with quite a good result. She had managed quite well over the years until Easter, when she had a severe onset of right-sided low back and leg pain. She was referred to Dr Ball, who commented that there was no significant nerve root impingement and he referred her for a facet joint injection and to have a SPECT scan. Dr Taylor observed that the SPECT scan demonstrated mild uptake around the L5 pedicle screw but no significant facet joint or discogenic uptake.[55]
[55] Insurer's documents at pages 708-709.
Dr Taylor opined that the claimant presented with what appeared to be axial low back pain with possible axial referred pain extending down the leg. He observed that it was uncommon for the pain to extend so far down the leg but there was no obvious nerve root impingement at the L5 to account for her symptoms. He recommended diagnostic medial branch blocks to the right L4/5 facet joint with a view to radiofrequency denervation. He also strongly recommended follow-up with a pain specialist physiotherapist to work on graded activity pacing.[56]
[56] Insurer's documents at page 709.
On 29 July 2014, the claimant underwent diagnostic medial branch blocks to the right L4/5 facet joint. On 8 August 2014, she underwent radiofrequency denervation.
In evidence, are the claimant’s clinical records provided by Synergy Medical Practice.[57] The first consultation entry in the clinical records is dated 7 December 2006 and the last entry is dated 13 August 2014. The last entry in the clinical records relating to the claimant’s lower back condition was dated 22 May 2014.
[57] Insurer's documents at pages 439-470.
In evidence, are the claimant’s clinical records provided by Crows Nest Medical Practice.[58] The first consultation entry in the clinical records is dated 7 December 2006 and the last entry is dated 16 March 2012.
[58] Insurer's documents at pages 471-483.
In evidence, are the claimant’s clinical records provided by The Mosman Practice.[59] The first consultation entry in the clinical records is dated 25 August 1999 and the last entry is dated 14 March 2024. There were no entries in the clinical records referring to complaints of back pain by the claimant in 2015, 2016, 2017 or 2019 until the time of the motor accident. There were two entries in the clinical records in 2018 referring to complaints of back pain by the claimant. Particulars of those entries are referred to below.
[59] Insurer's documents at pages 484-674.
On 21 March 2018, the claimant consulted Dr Ratna Neville, general practitioner. The entry in the clinical records of The Mosman Practice recorded the claimant’s complaint of lower back pain and pain down the side of the right leg but not into the toes. Passing of urine was normal as were the bowels. Dr Neville noted that the claimant had undergone a fusion at L5/S1 and experienced a flare-up every few years. Dr Neville noted that she had attended the pain clinic in the past. The claimant was prescribed two gabapentin 100mg capsules three times per day and issued a referral to Dr Taylor.[60] This entry in the clinical records coincided with the claimant’s evidence referred to in [97] above wherein she stated that the back pain resolved within a day or two, which was consistent with the next complaint of back pain not being recorded until 11 September 2018 despite numerous medical attendances at the medical practice in between.
[60] Insurer's documents at pages 575-576.
On 19 September 2018, the claimant consulted Dr Linda Harris, general practitioner. The entry in the clinical records of The Mosman Practice noted current back pain with the change of weather, the history of a spinal fusion at L5/S1 and that the claimant occasionally experienced low back pain. Dr Harris noted that the claimant had been taking ibuprofen 400mg three to four times per day over the past few days and that it was not helping. The claimant requested a prescription for Mersyndol Forte. Dr Harris prescribed two gabapentin 100mg capsules three times per day and two Mersyndol Forte 450mg, 30mg, 5mg tablets four times per day as well as antidepressant medications.[61]
[61] Insurer's documents at page 579.
It was apparent from The Mosman Practice clinical records that the claimant was also taking Mersyndol Forte and Imigran for her migraines.
The claimant’s psychiatric history that had commenced in about 2003 continued right up to the date of the motor accident. There was no dispute in this regard.
On 17 April 2015, the claimant was admitted to Royal North Shore Hospital following an intentional overdose of Mersyndol Forte and Normison. The claimant felt she had been in a black hole for six months and had been suicidal since Christmas 2014. She had no support network and was voluntarily admitted in the context of being made redundant in April 2014, damaging her spinal fusion at about the same time (April 2014), bullying claims in the workplace, recent relationship breakdown and the financial stress of starting her own business.[62]
[62] Insurer's documents at page 781.
On 20 April 2015, the claimant was admitted to Northside Clinic and came under the care of Dr Choudhary and was discharged on 8 May 2015.[63]
[63] Insurer's documents at pages 807-810.
On 20 August 2017, the claimant was admitted to Royal North Shore Hospital following an overdose of Quetiapine for which she immediately sought help on a background of worsening depressive symptoms in the context of psychosocial stressors and medication non-adherence.[64]
[64] Insurer's documents at page 794.
On 31 August 2017, Dr Dillon Cheah, consultant psychiatrist, provided a report to Dr Nichola Dunn of The Mosman Practice.[65] Dr Cheah opined as follows:
“In my view [the claimant] has been suffering from a Major Depressive Disorder with Associated Anxiety. She has a very strong family history for depression indicating a key biological vulnerability to developing the same. [The claimant] has had a complicated relationship with her father and has sustained severe bullying as a young child both of which I feel I [sic] has contributed to a hindrance in her psychological development and affected the development of her self-worth. She also experienced pronounced interpersonal difficulties in her first marriage that appeared to play on her insecurities. [The claimant] has experienced a great deal of stress in recent years in her career; with workplace bullying, a redundancy and ongoing intense workplace stress that appear to be the major precipitants to this episode of depression. I feel she has prominent Cluster C personality features.”[66]
[65] Insurer's documents at pages 825-827.
[66] Insurer's documents at page 827.
On 25 September 2017, the claimant consulted Dr Cheah advising that her employment had been suddenly terminated because a number of clients allegedly refused to work with her. Dr Cheah noted that her mood had plummeted and recommended that the claimant be admitted as an inpatient at Northside Clinic to support her through the current crisis where clinic staff could be more responsive and address treatment goals more rapidly.[67]
[67] Insurer's documents at pages 828-829.
On 29 September 2017, the claimant was admitted to Northside Clinic under the care of Dr Cross. The Northside Clinic medical admission form noted that the claimant had been in a stressful job since March 2017; was overworked; did not get on with a co-worker who was incompetent; had problems with clients; and had her employment terminated. The form also noted that the claimant had been in a low mood since mid-July after a sinus infection and had been unable to get on top of her work. Memory and concentration were gradually getting worse and she experienced poor sleep. The claimant was discharged from Northside Clinic on 27 October 2017.[68]
[68] Insurer's documents at pages 811-814.
On 31 January 2018, the claimant consulted Dr Cross reporting nausea, vomiting and migraine issues. They spoke about how to best manage her sleep and anxiety. She reported feeling somewhat flat with some panic attacks over the Christmas period. The plan was for her to recommence walking her dogs and attending the gym and to reduce her Seroquel intake to 50mg.[69]
[69] Insurer's documents at page 872.
On 30 January 2019, Mr Mitchell Howarth, psychologist, reported to Dr Cross that he had been working together with the claimant since 2017. The focus of their work had been on mood management and specifically, anxiety management skills. They had discussed ways for her to improve and stabilise her mood. The present focus was on the stress management in the context of work stressors.[70]
[70] Insurer's documents at page 870.
On 27 March 2019, Dr Cross reported to Dr Neville that things were not going well for the claimant. A job had ended early and she had nothing to go to in its place. She had attended many interviews for employment without success. Her house was on the market and there was tension at home. She was not sleeping well and was using increased doses of Diazepam and Propranolol. He arranged for her to be admitted to Northside Clinic to reintroduce Seroquel and give her a break from her issues.[71]
[71] Insurer's documents at page 873.
On 28 March 2019, the claimant was admitted to Northside Clinic and was discharged on 5 April 2019.[72]
[72] Insurer's documents at pages 815-819.
On 17 April 2019, the claimant consulted Mr Howarth, who provided a report to Dr Cross updating the claimant’s progress in a report dated 29 July 2019. He confirmed that the claimant had presented to him for treatment of low mood and anxiety. He implemented cognitive behavioural therapy. He confirmed that they had been working together since September 2017 and that, since that time, the claimant’s symptoms had fluctuated. At their last consultation, they discussed the possible benefit of the claimant consulting another psychologist as there had been a steady decline in her well-being across time that did not seem to be responding to the intervention he was providing. The claimant agreed that transferring to another psychologist was worth trialling. They were to discuss the handover at the scheduled session on 1 May 2019, but the claimant cancelled that appointment and he had not heard from her since. Accordingly, he closed his file.[73]
[73] Insurer's documents at page 869.
On 12 May 2019, the claimant presented to Royal North Shore Hospital with suicidal ideation and increased anxiety in the context of alcohol intoxication. The hospital’s clinical records recorded a similar list of stressors to those provided to Dr Cross on 27 March 2019.[74]
[74] Insurer's documents at page 800.
On 21 May 2019, the claimant was admitted to Northside Clinic. The clinic’s medical admission form indicated that the claimant’s anxiety had increased over the past month and that she was experiencing almost daily panic attacks, felt very shaky and experienced palpitations and perspiration. She was discharged on 7 June 2019.[75]
[75] Insurer's documents at pages 820-824.

Relevant post-accident medical treatment

On 2 July 2019, the claimant presented to Royal North Shore Hospital. The hospital’s clinical records noted that the claimant had twisted whilst standing up on a bus which caused the onset of acute lumbar back pain with burning pain and pins and needles radiating down the posterior thigh on the right side and an inability to bear weight with her right foot. The spinal fusion for L5/S1 spondylosis 14 years earlier was noted, as were intermittent flare ups thereafter. It was noted that it was different with this episode. She had undergone radiofrequency a few years ago and had no issues with walking since the radiofrequency. She had been on gabapentin long-term and recently changed to Topamax. She was not often woken up by back pain. She was known to have right mild foot drop. The claimant was referred for an MRI scan of the lumbar spine to look for changes from her spinal surgery or any other spinal pathology and was also referred for physiotherapy.[76] The claimant was discharged from Royal North Shore Hospital on 5 July 2019.
[76] Insurer's supplementary documents at pages 877-879.
The claimant was transferred to North Shore Private Hospital on 5 July 2019 and was discharged on 13 July 2019.
On 13 July 2019, the claimant consulted Dr Philip Greenfield, general practitioner, of The Mosman Practice advising that she had sustained an acute back strain 10 days earlier. She had been admitted to North Shore Private Hospital until she was discharged earlier that day. Dr Greenfield noted that she was on Panadeine Forte and Palexia and issued a medical certificate at her request to return to work in two days’ time.[77]
[77] Insurer's documents at page 585.
On 16 July 2019, the claimant consulted Dr Dunn reporting that she had twisted her back on a bus three weeks ago and had spent 12 nights in hospital. Dr Rodger Laurent, rheumatologist, had administered a steroid injection. Dr Dunn referred the claimant to Dr Taylor and Dr Laurent. She prescribed two Panadeine Forte 500mg, 30mg tablets four times per day and one Tapentadol 100mg tablet twice per day. She ceased gabapentin.[78]
[78] Insurer's documents at page 585.
On 19 July 2019, the claimant consulted Dr Felicity Bidencope, general practitioner, of The Mosman Practice advising that she was now able to walk on her right leg, albeit in pain. Dr Bidencope requested Dr Nunn to expedite an appointment for the claimant with a pain clinic. She prescribed two Panadeine Forte 500mg, 30mg tablets four times per day.[79]
[79] Insurer's documents at page 585.

The claimant relied on the Furzer Crestani report.
The report of Ms Fisher should be given little weight for the reasons set out in the claimant’s written submissions dated 11 November 2024.[213]
[213] Claimant's documents at pages 256-257.
The figures set out in the Furzer Crestani report (based on the actual earnings that the claimant would have received in her employment at Bell Partners) are the appropriate measure of the minimum the claimant would have earned, if the accident had not occurred. The claimant maintains that an allowance should be made for career progression as set out in her primary submissions at $3,737 net per week.
The motor accident may have been the straw that broke the camel’s back, but even if that is so, the insurer is liable for the complete destruction of the claimant’s earning capacity caused by that final straw.

Consideration and findings

Damages for past loss of earnings or loss of earning capacity

The claimant’s unchallenged evidence was that she completed her law degree at the end of 1995 and was admitted as a legal practitioner in New South Wales in August 1996.
The claimant provided a detailed pre-accident employment history from about 1995 to the date of the commencement of her employment with Bell Partners on 1 July 2019.[214] The claimant’s work history demonstrated that she had worked reasonably consistently as an employed solicitor, a sole practitioner, an in-house lawyer and a contractor over about 23 years to the date of the motor accident.
[214] Claimant's documents at pages 31-38.
The claimant’s evidence was that, in May 2014, she started up her own legal firm performing legal work for one client initially. In late 2014, she was engaged by CLL Lawyers to carry out commercial litigation on a contract basis. In late 2014, she commenced looking for a general commercial legal firm to purchase and in February 2015, she was involved in negotiations to purchase such a firm in Parramatta. In February 2015, she commenced work as an employee of CLL Lawyers on a full-time basis in general commercial, automotive and commercial litigation as a salaried partner. Her father also performed contract work at the firm as special counsel. In August 2016, she commenced a one day per week secondment with SAIC Motor, a client of CLL Lawyers.
The claimant’s evidence was that, in September 2016, she began looking for a position in a legal firm that would provide a fast track to becoming an equity partner within 12 to 18 months.[215] The claimant had discussions with Russell Kennedy Aiken Lawyers for a special counsel position, William Roberts Lawyers for a special counsel position and DC Strategy Group for the role of managing partner of its legal division. Each of these prospective employers advised her that the roles on offer would be fast tracked to equity partner within 12 to 18 months.[216] She accepted the DC Strategy Group offer and commenced her employment with them in March 2017. The claimant encountered issues in her employment with DC Strategy Group and provided details in her evidentiary statement.[217] She was given a month’s notice of the termination of her employment in September 2017.
[215] Claimant's documents at page 36 at [114].
[216] Claimant’s documents at page 36 at [115].
[217] Claimant’s documents at pages 28-30.
The claimant’s evidence was that, in September 2017, she decided to return working for herself and set up an incorporated legal practice. As she had insufficient work to sustain her, she commenced working part-time for Lawyers on Demand where she was sent out for

in-house senior legal counsel roles with various companies who required assistance from a senior lawyer for short periods of time.
The claimant’s evidence was that, from August 2018, she recommenced looking for senior roles in law firms with a fast track to equity partner. She engaged a number of recruiters, including Ms Belinda Fisher of Burgess Paluch to help her find roles. In late 2018, she began to consider other senior roles in law firms that did not have a fast track to partnership so that she could refinance the mortgage on her home. She received two job offers, the first of which fell through (February 2019) and the second, she did not accept because she did not believe it was the right fit for her (April 2019).
Between January and April 2019, the claimant was psychologically unwell. Dr Cross noted that he was focusing on stress management in the context of her work stressors. He also noted that a work contract had ended early and that she had nothing to go to in its place despite having attended many interviews without success. Further, her house was on the market and there was tension at home. The claimant was admitted to Northside Clinic at the referral of Dr Cross on 28 March 2019 and discharged on 5 April 2019.
On 12 May 2019, the claimant presented to Royal North Shore Hospital with suicidal ideation and increased anxiety in the context of alcohol intoxication. On 21 May 2019, she was admitted to Northside Clinic with increasing anxiety over the past month and almost daily panic attacks. She was discharged on 7 June 2019.
The unchallenged evidence is that, on 1 July 2019, the claimant commenced employment with Bell Partners as head of commercial law at a salary of $210,000 per annum plus superannuation.[218] The motor accident occurred the following day.
[218] Insurer’s documents at pages 278-297.
On 15 July 2019, the claimant returned to work at Bell Partners with difficulty as she was significantly affected by lower back and leg pain. She struggled with work performance because of her pain. On 1 August 2019, her employment was terminated. She then started to take steps to start up her own firm again, which took about one week to 10 days. She still had some clients and was trying to retain others. She found herself struggling to get through the work and was taking too long to perform the work. She was making more mistakes than usual. She ultimately realised that she was not going to be able to continue.
In December 2019, the claimant worked on a casual basis for a period of five weeks at two days per week with Aspect Legal.
On 24 February 2020 the claimant had a spinal cord stimulator implanted and started to feel physically better. On 23 March 2020, she commenced a casual contract organised by recruiter with Onsite Rental Group as a senior lawyer. The contract finished in about early May 2020. The claimant’s evidence was that by mid-April 2020, her back and leg pain was slowly getting worse, leaving her constantly fatigued.
In January 2022, the claimant worked in a call centre for six days and has not worked since that time.
Despite experiencing flare-ups of her long-standing pre-accident lower back and leg, psychiatric conditions and other comorbidities, the claimant managed to continue working as a lawyer until the time of the motor accident. Thereafter, came the limited unsuccessful attempts to return to her pre-injury work referred to above.
The claimant’s evidence was that, but for the injuries sustained in the motor accident, she would have worked full-time until the age of 70 years and thereafter, worked part-time for another 5 to 10 years. There was no corroborative evidence in this regard.
Dr Bodel opined that the claimant had suffered a significant reduction in her earning capacity from both a physical and psychological point of view but deferred to formal assessments by a psychiatrist and possibly, an occupational physician to determine her earning capacity in the future. I give little weight to Dr Bodel’s opinion in this regard for the reasons already expressed.
Dr Burrow opined that the aggravation of pain the claimant sustained in the motor accident had not precluded her from resumption of part time office type work five hours per day, five days per week until normal retirement age following an initial post-accident two month period of total incapacity for work. I give little weight to Dr Burrow’s opinion in this regard for the reasons already expressed.
Dr O’Neill opined that he could not see anything that could be done to help the claimant with her chronic low back pain and right leg pain. He further opined that she was clearly not fit to return to work in any capacity in her current state but opined that the aggravated low back and right leg pain was now playing only a minor role in her inability to return to work.
Dr Siu opined that the claimant was permanently unfit for work, including office work.
Associate Professor Champion opined that the claimant’s inability to work as a solicitor or in any other capacity was likely to be permanent and provided his reasons as set out in [361] above.
Professor Brew opined that, due to her chronic lower back and leg pain and related restrictions, the claimant is not able to work in any capacity and that such impairment is likely to be indefinite.
I prefer the opinions of Dr Siu, Associate Professor Champion and Professor Brew over the opinions of Dr Burrow and Dr O’Neill in respect of the claimant’s work capacity. In accordance with the findings I have made in respect of the claimant’s motor accident-related injuries, I do not accept the minor role the aggravation to the claimant’s low back and leg pain that Dr Burrow and Dr O’Neill attributed to the motor accident. They failed to adequately explain their paths of reasoning. Their opinions in this regard appear to be mere assertions without proof.
Dr Argyle opined that the extent to which the claimant’s work impairment would continue rested predominantly with her pain rather than with her psychological impairment which was, to a large extent, in reaction to the pain.
Dr Newlyn opined that, from a mental health viewpoint, the claimant would be fit to undertake full pre-accident work duties until normal retirement age. In this regard, he observed that the claimant asserted she worked full-time in the period before the motor accident despite difficulties with her partner, alcohol and psychiatric admissions. He also observed that the documents supported her assertion of full-time work in the year before the motor accident but showed that there had been mental health difficulties in life beginning in 2005 that interfered with her ability to work.
The opinions of Dr Argyle and Dr Newlyn were not greatly inconsistent, except that, the latter did not take into account that part of the claimant’s psychological impairment that was related to the chronic low back and leg pain that had developed and continued following the motor accident. Accordingly, I prefer the opinion of Dr Argyle in respect of the claimant’s work capacity.
I reject the insurer’s submission that the mechanism of injury in the motor accident was a relatively minor event for reasons I have already stated.
I am satisfied that, as a result of the injuries and restrictions I have found were caused by the motor accident, the claimant has sustained a loss or diminution in her earning capacity and that such loss or diminution has resulted in economic loss.
I find that, as a result of the injuries I have found caused by the motor accident, the claimant does not have the capacity to return to her pre-injury work of a solicitor or in any other capacity. The combination of her motor accident-related injuries and increased restrictions result in her having no realistic residual earning capacity on the open labour market in the future.
I now turn to the calculation of the claimant’s economic loss.
In evidence, is the Furzer Crestani report.[219] The Furzer Crestani report purported to assess the claimant’s economic loss following the motor accident. It assessed the claimant’s past and future income loss and superannuation loss due to her inability to work following the motor accident.
[219] Claimant’s documents at pages 141-242.
The Furzer Crestani report noted by way of background that the claimant was a qualified solicitor with extensive experience in legal practice, including roles as a principal solicitor and managing partner. On 1 July 2019, she began employment with Bell Partners on a salary of $210,000 plus superannuation. The claimant viewed this role as an interim one whilst seeking equity partnership opportunities within the legal profession elsewhere. The motor accident caused injuries to the claimant’s lumbar spine and caused a persistent depressive disorder that rendered her unable to work in any capacity.
In respect of the claimant’s pre-accident career, the Furzer Crestani report noted that she had consistently worked full-time despite pre-existing health issues, including migraines, psychological challenges and a history of back injury. It noted that she intended to work

full-time until the age of 70 years, followed by part-time work for 5 to 10 years.
In respect of the claimant’s post-accident career, the Furzer Crestani report noted that the claimant returned to work briefly at Bell Partners. However, she remained in considerable pain and her employment was terminated on 1 August 2019. The report noted that subsequent employment included initially operating her own practice in a limited capacity, casual roles (Aspect Legal and Onsite Rental Group) and call centre work. However, the claimant was unable to sustain consistent employment and was unable to return to work in any capacity.
The Furzer Crestani report provided a schedule of the sources that were reviewed and relied on in preparing the assessment of the claimant’s economic loss.[220]
[220] Claimant's documents at page 158.
The Furzer Crestani report provided an assessment of the claimant’s economic loss into two scenarios. Scenario 1: where the claimant continued to work as a solicitor for Bell Partners from 2 July 2019 until she was able to attain a partner’s position on 1 July 2020 with either a small sized legal firm as option A or alternatively, a mid-sized legal firm as option B. Scenario 2: where the claimant continued to work as a solicitor for Bell Partners until her retirement on attaining the age of 70 years and thereafter, part-time until either 75 years of age or, alternatively, 80 years of age. All calculations assumed that the claimant had no residual earning capacity.
Table 2 of the Furzer Crestani report set out calculations of what was referred to as the claimant’s “true earnings” for the financial years 2014 to 2021 inclusive. It did not include the claimant’s six days work in a call centre in early 2022 as that information was not available at the time of the preparation of the report. In respect of the claimant’s true earnings in the four years prior to the motor accident, the authors of the Furzer Crestani report calculated that her average true earnings were $195,920 per annum.
The calculations of the claimant’s past and future economic loss in the two case scenarios and the options therein were set out in schedules D to L of the Furzer Crestani report.[221]
[221] Claimant's documents at pages 165-173.
In evidence, there is a report from Burgess Paluch Legal Recruitment by Ms Belinda Fisher, legal recruiter, dated 16 September 2024.[222]
[222] Insurer’s documents at pages 232-249.
Ms Fisher set out her employment history and her qualifications as an expert. She is a partner in a national legal recruitment agency, Burgess Paluch, and undertakes legal recruitment for lawyers in both private practice and in-house, including general counsel roles. She has been involved in legal recruitment on a full-time basis since April 2006.
At the beginning of her report, Ms Fisher provided a brief summary of her opinion. Ms Fisher opined that it would be improbable for the claimant, but for her injury, to have obtained and sustained a role as a partner in a small law firm or in a mid-tier law firm by 1 July 2020. She further opined that the career opportunities available to the claimant would now include

part-time contract in-house roles similar to the roles she had obtained prior to the motor accident.
Ms Fisher listed the documentation she had reviewed in preparing her report. She also listed what she referred to as the relevant facts, matters and assumptions in respect of the claimant. She listed the claimant’s employment history.[223]
[223] Insurer’s documents at pages 233-235.
Ms Fisher provided her opinion on the claimant’s prospects of obtaining and sustaining a role as a partner in a small law firm and in a mid-tier law firm by 1 July 2020 and her reasons for concluding that it would be improbable for her, but for her injury, to have obtained and sustained such roles. Such reasons included the COVID-19 pandemic and its effect on the legal industry; the claimant’s failure in starting her own business in about April 2015; the long hours and stress involved in being a salaried partner in a law firm due to the claimant’s response to stress and pressure; the claimant’s attempts at suicide and psychiatric admissions; the claimant’s history of part-time and contract work prior to the motor accident; and the claimant’s history of terminations and redundancies from employment prior to the motor accident.
Ms Fisher opined that the claimant’s likely career trajectory until retirement was very limited due to her experience including lengthy broken periods of time in her father’s niche legal practice and having worked part-time and in contract roles prior to the motor accident. Further, many of her roles had ended due to the employment periods being terminated or being made redundant.
Ms Fisher opined that it was doubtful that the claimant would have many opportunities to continue her career other than in contract roles for the reasons already stated. She opined that the claimant’s work history had been drastically affected by her mental health. She referred to the reports of Dr Burrow.
Ms Fisher also referred to the “current economic slowdown”[224] as a further consideration in the conclusions she had reached. She also opined that the claimant would have difficulty obtaining references given her recent work history, namely, redundancies and numerous terminations, and that a reference from her father would be considered to be biased.
[224] Insurer’s documents at pages 238 and 239.
I find that Ms Fisher strayed outside her area of expertise when she opined that the claimant’s work history had been drastically affected by her mental health and I have taken this into consideration when considering her expert opinion. Further, the evidence is that the claimant, to her credit, did not cease working for any significant periods of time as a result of intermittent flare-ups of her psychological condition, her lower back condition or other comorbidities.
I reject the insurer’s methodology in calculating the claimant’s past loss of earnings and suggesting that it should form the basis for her most likely future earnings but for the motor accident. It is misconceived. I agree with the claimant’s submission that “cherry picking” the claimant’s 39 weeks employment with Lawyers On Demand and ignoring her earnings in the four years leading up to the motor accident was inappropriate.
I now turn to a consideration of the claimant’s most likely future circumstances but for her injuries sustained in the motor accident and her level of earnings.
Whilst I accept that the claimant may have had a desire to become an equity partner in a small to mid-tier legal firm, the pattern and nature of her work history in the legal profession in the 23 years prior to the motor accident does not satisfy me that such desire would have been her most likely future circumstance but for her injuries.
I find that the claimant’s most likely future circumstances but for the injuries and resultant restrictions caused by the motor accident, would have seen her continue as either an employed solicitor, a sole practitioner, an in-house lawyer or a contractor or, as evidenced in the past, a combination of some of these.
The claimant’s employment with Bell Partners on a salary of $210,000 per annum was short lived due to the motor accident and as such, was not the perfect measuring stick in respect of an annual salary or whether that type of employment suited her. However, there was evidence in the four years preceding the motor accident that the claimant was averaging close to $200,000 gross per annum as an employed solicitor, a sole practitioner, an in-house lawyer and a contractor. In such circumstances, I find the figure of $210,000 gross plus superannuation per annum as an appropriate starting point when calculating her past loss of earnings.

I assess the claimant’s entitlement to past loss of earnings from 3 July 2019 to 28 May 2025 as follows:
3 July 2019 to 30 June 2020:
$210,000 gross per annum = $4,038.46, rounded down to $4,038 gross per week being $138,191 net per annum = $2,657.52, rounded up to $2,658 net per week.
3 July 2019 to 30 June 2020 = say, 52 weeks x $2,658 net per week = $138,216.
Less actual income after tax as calculated by Furzer Crestani Forensic Chartered Accountants on the claimant’s records of $63,718 = $74,498.
1 July 2020 to 30 June 2021:
Sydney consumer price index (CPI) percentage = 0%. $210,000 gross per annum = $4,038.46, rounded down to $4,038 gross per week being $140,621 net per annum = $2,704.25, rounded down to $2,704 net per week.
1 July 2020 to 30 June 2021 = say, 52 weeks x $2,704 net per week = $140,608.
Less actual income after tax as calculated by Furzer Crestani Forensic Chartered Accountants on the claimant’s records of $8,814 = $131,794.
1 July 2021 to 30 June 2022:
$210,000 gross per annum and add CPI percentage increase 3.02% = $6,342 = $216,342 gross per annum = $4,160.42, rounded down to $4,160 gross per week being $143,983 net per annum = $2,768.90, rounded up to $2,769 net per week.
1 July 2021 to 30 June 2022 = say, 52 weeks x $2,769 net per week = $143,988.
Less actual income after tax as calculated by Furzer Crestani Forensic Chartered Accountants on the claimant’s records of $8,814 = $135,174.
1 July 2022 to 30 June 2023:
$216,342 gross per annum and add Sydney CPI percentage increase 5.28% = $11,422.86, rounded up to $11,423 = $227,765 gross per annum = $4,380.10, rounded down to $4,380 gross per week being $150,046 net per annum = $2,885.50, rounded up to $2,886 net per week.
1 July 2022 to 30 June 2023 = say, 52 weeks x $2,886 net per week = $150,072.
1 July 2023 to 30 June 2024:

$227,765 gross per annum and add Sydney CPI percentage increase 3.8% = $8,655.07, rounded down to $8,655 = $236,420 gross per annum = $4,546.54, rounded up to $4,547 gross per week being $154,046 net per annum = $2,962.42, rounded down to $2,962 net per week.
1 July 2023 to 30 June 2024 = say, 52 weeks x $2,962 net per week = $154,024.
1 July 2024 to 28 May 2025:
$236,420 gross per annum and add Sydney CPI percentage increase 2.3% = $5,437.66, rounded up to $5,438 = $241,858 gross per annum = $4,651.12, rounded down to $4,651 gross per week being $162,044 net per annum = $3,116.23, rounded down to $3,116 net per week.
1 July 2024 to 28 May 2025 = say, 47 weeks x $3,116 net per week = $146,452.

The claimant’s total past loss of earnings comes to $792,014.
I calculate the claimant’s entitlement to past superannuation as follows:
Superannuation guarantee percentage (SGP) for 3 July 2019 to 30 June 2020 = 9.5% on gross of $210,000 per annum = $19,950.
SGP for 1 July 2020 to 30 June 2021 = 9.5% on gross of $210,000 per annum = $19,950.
SGP for 1 July 2021 to 30 June 2022 = 10% on gross of $216,342 per annum = $21,634.20, rounded down to $21,634.
SGP for 1 July 2022 to 30 June 2023 = 10.5% on gross of $227,765 per annum = $23,915.33, rounded down to $23,915.
SGP for 1 July 2023 to 30 June 2024 = 11% on gross of $236,420 per annum = $26,006.20, rounded down to $26,006.
SGP for 1 July 2024 to 28 May 2025 = 11.5%. Gross of $241,858 per annum = $4,651 gross per week x 11.5% = $534.87 superannuation per week x 47 weeks =$591.78 = $27,813.66, rounded down to $27,813.
The claimant’s total entitlement to past superannuation comes to $139,268.
Accordingly, I assess the claimant’s entitlement to past loss of earnings at $931,282, inclusive of superannuation.

Damages for future loss of earnings or loss of earning capacity

Whilst I accept that the claimant may have believed that she would have worked to age 70 and on a part-time basis for some years thereafter, I am not satisfied, on the available evidence and in the absence of corroborative evidence, that she would have done so.
Having found that the motor accident caused and/or materially contributed to the claimant suffering a severe and ongoing aggravation of a pre-existing condition in her lumbosacral spine and an ongoing aggravation of a pre-existing psychological/psychiatric condition, the evidential onus is on the insurer of proving that the alleged pre-existing conditions did exist and that these conditions in their natural progression would have produced similar symptoms.
The insurer submitted that there was a real chance the claimant would have developed similar symptoms due to the natural progression of the lumbar fusion she underwent in 2005. That is, there was a real chance that a non-compensable condition would have brought the claimant to the same state. Therefore, the claimant’s damages must be discounted accordingly.
There is no dispute that the claimant had long-standing lower back and psychological conditions. The insurer has failed to discharge its onus of proving that the claimant’s

pre-existing lower back condition in its natural progression would have produced similar symptoms as those that have continued since the motor accident for the reasons I have already stated in the review of the medical evidence. The insurer relied on Dr Burrow in this regard whose evidence I did not prefer over the evidence of Dr Siu, Professor Brew and Associate Professor Champion.
The insurer also submitted that a similar daily event as the mechanism of injury that occurred in the subject bus incident could have resulted in the same outcome. However, Associate Professor Champion, whose evidence I have preferred, opined that it would have taken another event of a similar kind of stress and severity to that which occurred to the claimant on the bus to have induced the experience that had in fact occurred. It was nothing more than a possibility which is ordinarily covered by the vicissitudes allowed in the ordinary case.
I have found that the loss of the claimant’s earning capacity as a result of her motor accident related injuries and restrictions is currently $3,116 net per week. I find that such loss will continue until her retirement at the age of 67, that is, another, say 15 years.
I assess the claimant’s entitlement to future loss of earnings as follows:
$3,116 net per week x 555.0 (Multiplier for 15 years):                  $1,729,380
less 15% for vicissitudes:  $   259,407
total future net loss of earnings:  $1,469,973
I calculate the claimant’s future loss of superannuation entitlements as follows:
$1,469,973 future net loss of earnings x 14.63% (15 years) =
$215.057.05, rounded down to: $215,057
Accordingly, I assess the claimant’s entitlement to future loss of earnings at $1,685,030 inclusive of superannuation.

ASSESSMENT OF DAMAGES SUMMARY

Under s 7.36(1)(b) of the MAI Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Non-economic loss:  $0
Economic losses
·Past loss of earnings:  $792,014
·Fox v Wood damages (s 4.5(1)(d) of the MAI Act):  $70,837
·Past loss of superannuation:  $139,268
·Future loss of earnings:  $1,469,973
·Future loss of superannuation:  $215,057
Total of economic losses and non-economic loss:  $2,687,149
Total damages assessed:  $2,687,149
The claimant’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:
·Payments made under section 3.40(1)(b) of the MAI Act:        $460,155.10.

COSTS AND DISBURSEMENTS

The claimant’s lawyers provided a schedule of claimed costs and disbursements dated 12 November 2024.[225] The insurer’s lawyers provided a schedule of costs and disbursements in response dated 20 November 2024.[226]
[225] Claimant’s documents at pages 259-260.
[226] Insurer’s documents at pages 12-13.
The insurer’s schedule of costs and disbursements set out the maximum fees payable in respect of the medical report fees claimed by the claimant. At the assessment conference, the claimant accepted the insurer’s schedule in respect of the claimed medical report fees.
The insurer disputed the unregulated disbursement of the Furzer Crestani forensic accounting report dated 3 April 2023. The insurer submitted that the Furzer Crestani report was of no assistance to the Commission. It contained a simple series of calculations derived from untested assumptions in the claimant’s letter of instruction. The report did not offer an expert analysis and it did not involve an independent exercise of expertise. Therefore, the claimant should not be awarded the cost of the Furzer Crestani report.
The claimant submitted that the insurer’s submissions overlooked the fact that a dominant purpose of the report was to analyse her financial records to derive her true earnings so that a baseline could be set for her claim for loss of earnings. The claimant was self-employed for some periods and calculating her actual income was not a straight forward process.
The claimant further submitted that she was also plainly entitled to obtain evidence as to what her earnings may have been if she had attained the position that she intended to obtain, had the motor accident not occurred. The Furzer Crestani report provided this evidence, based on Mahlab reports, and provided the necessary calculations. The reasonableness of a party obtaining evidence does not depend on that party’s claim ultimately being accepted.
I find the insurer’s submissions unpersuasive. The claimant’s claim for economic loss was somewhat complicated and involved not only an analysis of her actual income but also an analysis of three possible scenarios and the relevant calculations pertaining thereto in respect of her future earnings. The insurer made no submissions in respect of the cost of the report. Accordingly, I award the claimant the cost of the Furzer Crestani report as claimed, that is, $8,360.
As indicated at the preliminary conference and at the assessment conference, I will not calculate the claimant’s costs and disbursements but rather, I make an order that the insurer is to pay the claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 as agreed between the parties and as assessed by me in respect of the unregulated fees for the forensic accounting report of Furzer Crestani dated 3 April 2023 in the sum of $8,360.

CONCLUSION

On the issue of liability for the claim, it was agreed that the motor accident was a “no fault accident” within the meaning of the MAI Act. The claimant sustained injury, loss and damage as a result of the motor accident. There was no contributory negligence on the part of the claimant.
Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim, applying the MAC Act, as $2,687,149.
The insurer is to pay claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 as agreed and as assessed by me in respect of the unregulated fee for the forensic accounting report of Furzer Crestani dated 3 April 2023 in the sum of $8,360.

LEGISLATION

In making my decision I have considered the following legislation:
(a)    Personal Injury Commission Act 2020;
Personal Injury Commission Rules 2021(b) ;
(c)    the MAI Act;
(d)    the MAC Act, and
(e)    Motor Accidents Injuries Regulation 2017.