BSA v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BSA v QBE Insurance (Australia) Limited [2023] NSWPIC 84
Claimant:	BSA
insurer:	QBE Insurance (Australia) Limited
Member:	Anthony Scarcella
DATE OF DECISION:	22 February 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of a claim for damages under Division 7.6 for non-economic loss, past loss of earnings and future loss of earnings; consideration of section 4.7 where the claimant is a refugee and has never been in employment; physical injuries not disputed; causation of major depressive disorder in dispute; Medlin v State Government Insurance Commission, Husher v Husher and Penrith City Council v Parks considered and applied; Held – the amount of damages for the claim is $892,771; the amount of the claimant’s costs in the matter is $74,275.99 inclusive of GST.
determinations made:	CERTIFICATE OF DETERMINATION 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 $892,771. 2. The amount of the claimant’s costs in the matter is $74,275.99 inclusive of GST.

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 7 November 2018 (the motor accident).
The claimant, BSA, is a 50 year old woman, who alleges she suffered injuries in the motor accident.
On 3 December 2018, BSA made an application for personal injury benefits in respect of the motor accident against QBE Insurance (Australia) Limited (QBE), being the compulsory third-party insurer of the vehicle at fault.[1]
[1] BSA’s documents at pages 4-9.
On 11 August 2021, BSA made an application for damages under common law.
In a liability notice dated 9 November 2021, QBE admitted liability, including an admission of breach of duty of care and that BSA had suffered some injury, loss or damage as a result of the driver of the vehicle at fault.
On 2 November 2021, BSA lodged the Application with the Motor Accidents Division of the Personal Injury Commission (the Commission).
At a teleconference on 13 July 2022, the matter was set down for an audio-visual assessment conference on 7 November 2022. Mr Dean-Lloyd Del Monte of counsel appeared for BSA, instructed by Mr Bill Langler, solicitor. Mr Gazi Halloo, Kurdish Kumanji speaking interpreter (NAATI number CPN9SB7M) was present to assist BSA. Mr Marco Nesbeth of counsel appeared for QBE, instructed by Ms Homira Haideri, solicitor.
The parties agreed that the following issues were required to be determined by me:
(a)   the nature and extent of BSA’s injuries;
(b)   the quantum of BSA’s damages for non-economic loss;
(c)   the quantum of BSA’s damages for past loss of earnings or past loss of earning capacity, and
(d)   the quantum of BSA’s damages for future loss of earnings or future loss of earning capacity.
The parties agreed that:
(a)   there was no deduction to be made under s 3.40(1)(b) of the MAI Act (statutory benefits paid);
(b)   there were no payments made by QBE under s 4.5(1)(d) of the MAI Act (Fox v Wood damages);
(c)   QBE had not made any advance payments to BSA, and
(d)   it was not necessary for me to issue my reasons for decision in draft.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)   BSA’s Application dated 2 November 2021 and the final tender bundle of supporting documents lodged with the Commission on 6 November 2022 and identified as “AD6” (BSA’s documents);
(b)   QBE’s reply to the Application dated 13 December 2021 and the final tender bundle of supporting documents lodged with the Commission on 11 October 2022 and identified as “AD1” (QBE’s documents);
(c)   BSA’s written submissions lodged with the Commission on 27 October 2022 and identified as “AD4”;
(d)   BSA’s schedule of damages lodged with the Commission on 27 October 2022 and identified as “AD5”;
(e)   BSA’s schedule of legal costs lodged with the Commission on 27 October 2022 and identified as “AD7”, “AD8”, “AD9”, and
(f)    QBE’s submissions on legal costs dated 18 November 2022 and identified as “AD10.”

Oral evidence

Oral evidence was adduced from the following at the assessment conference:
(a)   BSA;
(b)   Ms Janviere Nzobakenga, and
(c)   Ms Skye Hawkins.

SUBMISSIONS

BSA’s legal representatives provided written submissions on the substantive issues dated 27 October 2022, supplemented by oral submissions at the assessment conference.
QBE’s legal representatives provided written submissions on the substantive issues dated 13 December 2021 and 11 October 2022, supplemented by oral submissions at the assessment conference.
I will refer to the parties’ submissions under each relevant issue for determination set out below.

THE NATURE AND EXTENT OF THE INJURIES

BSA’s evidence

In evidence, there is a written statement by BSA dated 18 August 2022.[2] She also gave oral evidence at the assessment conference. BSA confirmed that the contents of her written statement were accurate.
[2] BSA's documents at pages 73-80.
I will first refer to the relevant parts of her written statement and then, her oral evidence.
BSA stated that she was born in a small village in the north of Iraq. She was the second wife to her husband in Iraq and she is divorced. She had six children with her husband. When the Islamic State of Iraq and Syria (ISIS) attacked, she and her family fled to Syria and then to Kurdistan. She lived in a refugee camp for about three years before she was granted refugee status. Some of her family is still in refugee camps.
BSA stated that she emigrated to Australia as a refugee on 19 September 2017 with one of her sons, BOC, his wife and their children. Her son, BQA, arrived in Australia about two years ago. She settled in Coffs Harbour and lived with BOC, his wife and their children. One of her daughters, BPB, is still in Iraq and another son, BRE, lives in Germany.
BSA stated that her native language is Kurdish Kurmanji and that she spoke a little Arabic as well. She did not receive any education and is illiterate. She cannot read or write in English or Kurdish Kurmanji and she speaks very limited English.
BSA described her experiences during the period of war in Iraq as frightening. However, she had not been diagnosed with any psychological problems prior to the motor accident. BSA stated that prior to the motor accident she was in good health.
BSA stated that, after settling in Coffs Harbour, she was placed in the Service for the Treatment and Rehabilitation of Torture and Trauma (STARTTS) program and was enrolled at TAFE NSW Coffs Harbour to undertake a one-year English language course, one day per week. BSA’s case manager, Ms Deborah Ngubia, also enrolled her with an employment agency, Enterprise & Training Company (ETC), to assist BSA in finding work.
BSA stated that, prior to the motor accident, she was well settled in Coffs Harbour and was enjoying her studies at TAFE and being close to her family. She felt happy and safe and was looking forward to completing the TAFE English course and finding work in the local area.
BSA explained it was her understanding that as a condition of receiving Centrelink benefits, she had to actively look for suitable work. Through her discussions with her support workers, she was aware that a significant amount of work was available for blueberry pickers in the local blueberry industry and for hotel cleaners in Coffs Harbour. She would have taken any work that was offered to her because she wanted to support her family. She would have preferred commercial cleaning work or cleaning in a motel as she had experience with cleaning her own home. It was her intention to seek such work once she had a sufficient grasp of the English language.
BSA stated that, prior to the motor accident, she had no difficulties in managing her personal care and hygiene. She was very actively involved in helping around the home and performing domestic chores including cooking, cleaning and caring for her grandchildren. She enjoyed going on long walks along the beach and socialising within her community. They would have communal dinners where they would sit around on the ground talking and socialising, which she found very enjoyable.
BSA stated that, on 7 November 2018, she had been attending her TAFE English course at the TAFE campus in Coffs Harbour. At about 11.00am, she was walking across a pedestrian crossing near the TAFE when a car crashed into her right side and threw her into the air causing her to land some distance away. She believed that she had been knocked unconscious for a period of time. When she regained consciousness, she was in severe pain and in a state of shock. The pain was worst in her right hip, left shoulder, neck and knees. She was treated by ambulance paramedics at the scene and was transported by ambulance to Coffs Harbour Base Hospital, where she was admitted.
BSA stated that she underwent surgery on her fractured right hip at Coffs Harbour Base Hospital by Dr Matthew Broadhead, orthopaedic surgeon (7 November 2018). On 8 November 2018, she was transported by air ambulance to John Hunter Hospital in Newcastle.
BSA stated that she underwent further surgery on her right hip at John Hunter Hospital by Professor Zsolt Balogh, trauma surgeon (12 November 2018). On 16 November 2018, she underwent surgery to her left shoulder at John Hunter Hospital by Dr Minas Petrelis, orthopaedic surgeon. She underwent numerous scans and tests whilst in hospital. She also underwent rehabilitation until 23 November 2018, when she was discharged and transported back to Coffs Harbour Base Hospital, where she was re-admitted.
BSA stated that, during the second period of her hospitalisation at Coffs Harbour Base Hospital, she underwent further scans and tests as well as physiotherapy and rehabilitation, which she found very painful and difficult. The wound to her right hip became infected and she underwent three surgical procedures whilst in hospital to clean out the wound. On 26 March 2019, she was discharged from Coffs Harbour Base Hospital. Upon being discharged, she returned to live with her son and daughter-in-law.
BSA stated that she has continued under the care of her treating general practitioner, Dr Cathryn Platt and Dr Broadhead.
BSA stated that, shortly after the motor accident, she began having flashbacks and nightmares about it, which have continued to date. Due to constant severe pain and her slow recovery from the injuries sustained in the motor accident, she became very depressed.
BSA stated that, in about April 2019, her son, BOC, had gone swimming at Woolgoolga Beach and went missing. He drowned and his body has never been found. Following the death of BOC, her depression became much worse. There was increasing conflict with her daughter-in-law, who eventually told her to leave home. She moved in with her other son, BQA and his wife. At times, she has felt unwelcome in BQA’s home and she would like to live alone if she could.
BSA stated that, on 11 June 2019, Dr Platt referred her to Dr Jenny Jin, consultant rehabilitation specialist and pain physician, for rehabilitation treatment that included physiotherapy and exercise physiology.
BSA stated that, on about 27 June 2019, Dr Platt referred her for psychological treatment to Mid North Coast Therapy Group. Dr Platt also prescribed her pain medication.
BSA stated that she underwent an MRI scan of her left knee on 26 July 2019; an MRI scan of her neck on 17 September 2019; and a CT scan of her pelvis on 11 November 2019.
BSA stated that she was reviewed by Dr Broadhead on 20 November 2019 and he administered an injection into her right hip at the consultation. She underwent another injection to her right hip on 30 January 2020. She had further consultations with Dr Broadhead on 12 February 2020, 1 June 2020 and 25 August 2020.
BSA stated that, in September 2020, Dr Platt referred her to Dr Alan Doris, consultant psychiatrist, for treatment of her depression.
BSA stated that, on 7 October 2020, she underwent right total hip replacement surgery at Baringa Private Hospital by Dr Broadhead. She commenced rehabilitation at the hospital on about 13 October 2020.
BSA stated that she was reviewed by Dr Broadhead on 17 November 2020 and 16 December 2020. Dr Broadhead referred her to Dr Zeshan Ali, rehabilitation medicine physician, at the Baringa Private Hospital for rehabilitation to assist with her ongoing pain following the right total hip replacement surgery.
BSA stated that she consulted Dr Doris on 2 February 2021.
BSA stated that Dr Platt referred her to Ms Tracey Adendorff, psychologist, for further psychological treatment on 1 July 2021; Ms Fay Wiffen, physiotherapist, for further physiotherapy treatment on 16 August 2021; back to Mid North Coast Therapy Group for further psychological treatment on 17 August 2021; and Dr Shaun Clarke, specialist pain medicine physician and anaesthetist for the treatment of her ongoing severe pain on 17 August 2021.
BSA stated that she feels devastated by the ongoing pain, restrictions and problems resulting from the motor accident. She has completely lost the quality of life she was enjoying since moving to Australia. Since the motor accident, she has never been pain free. She has experienced significant levels of pain in her right leg and right hip, neck, back, left shoulder and left knee. She is still very depressed and withdrawn and only has a few friends within the local Yazidi community.
BSA stated that, because of the pain, she rarely gets a full night’s sleep and as a result, she is very tired most days. She becomes frustrated with her situation and lacks patience. She spends most of her time at home resting, watching television or on her mobile phone. When she does leave home, she uses a mobility scooter or is driven by her son to appointments. She now has very little to look forward to in life and feels useless.
Attached to BSA’s signed statement dated 18 August 2022 was a schedule of her current medications prescribed by Dr Platt. The schedule included one Lexapro 10mg tablet daily for neuropathic pain; one Lyrica 75mg capsule with breakfast for neuropathic pain; one Lyrica 150mg capsule with dinner for neuropathic pain; one Melatonin tablet with dinner for insomnia; half a tablet of Panadeine Forte 500mg three times per day; and two Panadol Osteo 665mg tablets three times per day when needed.
BSA stated that she used to enjoy long walks along the beach, playing with her grandchildren, dancing, going for drives, socialising at communal dinners with friends, attending English classes and making new friends.
BSA stated that she experiences increased levels of pain when walking for longer than 5 to 10 minutes; driving for longer than 10 to 15 minutes; sitting for longer than 10 to 15 minutes; standing for longer than 1 to 5 minutes; and lifting or carrying her grandchildren.
BSA stated that she now finds it very difficult to cook; clean; wash and hang out the laundry; vacuum; shop; wash herself; and put on and remove clothing, socks and shoes.
In respect of her prospects for work, BSA stated that many refugees in her community as well as refugees in the African community worked in the local blueberry industry as pickers and performing motel or commercial cleaning work and were making a good living. She believed that she had the physical ability to perform such work before the motor accident.
BSA stated that, due to her motor accident related ongoing injuries and disabilities, she did not believe that she would be able to work at all now. Blueberry picking is physically demanding work over long hours in a crouched and bent over position picking blueberries and raspberries from low plants on steeply sloping and uneven ground in the Woolgoolga and Coffs Harbour areas. Similarly, hotel and commercial cleaning is physically demanding work involving a lot of bending, lifting, carrying and working in a crouched or bent over position. She did not believe that she could now do these jobs because of her ongoing pain and restrictions. Realistically, there is no other work she could obtain.
I will now refer to the relevant parts of BSA’s oral evidence at the assessment conference.
In response to questions from her counsel, BSA stated that she had pain in her right hip, back, shoulder and knees. She added that her headaches have been getting worse since the motor accident and they are always present.
In response to the question of whether she had taken any medication on the morning of the assessment conference from her counsel, BSA produced a blister pack of medication (also known as a Webster Pack). Mr Langler identified and read onto the record the medications contained in the pack. The medications included one Vitamin D3 1000IU tablet each morning; one Lyrica 75mg capsules twice daily; one Esomeprazole 20mg tablet daily; one Citalopram 10mg tablet each morning; one Circadin 2mg tablet nightly; Paracetamol Codeine GH500 twice daily; and one Tacidine 150mg capsule twice daily. BSA stated that the medication makes her feel uncomfortable but that she has to take it for the pain.
In response to questions from her counsel, BSA stated that she used a wheeled walker to walk around and that when she goes out she uses a motorised scooter.
In response to questions from counsel for QBE, BSA stated that she was 43 years of age when she left Iraq and she had six children aged 28, 27, 26, 25, 23 and 22 years. The youngest child was aged 19 when BSA left Iraq. Before BSA left Iraq, she had not done any work because she was raising her family and traditionally in Iraq, the woman does not work.
In response to questions from counsel for QBE, BSA stated that she had not had any schooling in Iraq. She cannot read or write in her own language, Kurdish Kumanji. She cannot write a street address. She can just write her name. She is not very skilled with numbers.
In response to questions from counsel for QBE, BSA stated that she left Iraq and flew to Syria and then went back to Kurdistan. They lived in refugee camps for five years until they came to Australia in 2017. She was provided with assistance through Centrelink from the time she arrived in Australia. In order to receive Centrelink benefits she had to look for work and learn English. Before the motor accident, she had not applied for any jobs. However, her job active provider was looking for work for her and she told them that she would do any job, even volunteering. The job active provider advised that she must learn English before she could get a job because without the language she would not find a job that easily. Her English needed to be good enough before she could work. She found studying English difficult.
In response to questions from counsel for QBE, BSA stated that before the motor accident she studied English at TAFE for about eight months and was doing well but after the motor accident, she had to stop her English studies. Her Kurdish Kumanji language skills were better than her English skills. She is unable to read the address on her immigration card or read street signs. She is and has been unable to go to a shop and ask for a loaf of bread in English. By the time of her last surgery, she had forgotten everything she had learnt in her English classes. It was just like her first day in this country.
In response to questions from counsel for QBE, BSA stated that, in April 2021, she re-enrolled in the Adult Migrant English Program at TAFE. However, she attended two or three times but could not continue. So, she stopped taking classes. Commencing about three months ago to date, she has been attending Red Cross English classes for two hours on Fridays with a break in between. Red Cross is about 10 minutes away by motorised scooter. She is being taught vocabulary and is provided with information on paper that she copies. She agreed that she had come across English speakers frequently before and after the motor accident. BSA stated that when she goes shopping and sees people she knows, she communicates with them. She loved learning English and wanted to learn English. She tried her best but after the motor accident she has been unable to learn because of headaches. She agreed that being unable to read or write in Kurdish Kumanji, it would be harder to learn to read and write in English.

In response to questions from counsel for QBE, BSA stated that, whilst she was in hospital, she lost one of her sons and it was one of the worst things that happened in her life.
In response to questions from counsel for QBE, BSA stated that, but for the motor accident, she would have found a job, at least, as a dish washer in a restaurant, picking blueberries or a cleaning job. She agreed that, prior to the motor accident, she relied entirely on the support of Centrelink in respect of job seeking.
In response to questions from counsel for QBE, BSA stated that she did not learn to drive in Iraq. It was not part of the culture and women were not permitted to drive. It was illegal. After she arrived in Australia, the had the opportunity to get a licence and drive a car but then the motor accident happened. BSA agreed that, in order to get a licence in Australia, there was a knowledge test. She stated that there was an interpreter available to interpret the knowledge questions. In her knowledge test, she got two questions wrong. One was a question about coming across a train and the other one was about having a baby in the back seat. She failed the test and before she could do the test again, the motor accident happened.
In response to questions from counsel for QBE, BSA stated that, if she uses her motorised scooter, she can do her grocery shopping at Woolworths once or twice a week.
In response to questions from her counsel, BSA stated that, when there is a small amount of grocery shopping to be done, she uses her motorised scooter, otherwise her son takes her by car. She is easily able to buy her groceries without an interpreter.
In response to questions from her counsel, BSA stated that, prior to the motor accident, she accessed the community by walking. She would walk from home around Coffs Harbour between four to five hours daily.
In response to questions from her counsel, BSA stated that, prior to the motor accident, she used to visit non-English speaking friends in the community but since the motor accident those people are now able to speak English. She stated that the rest of her family now speaks English well.

Ms Janviere Nzobakenga’s evidence

In evidence, there is a written statement by Ms Janviere Nzobakenga dated 19 October 2022.[3] She also gave oral evidence at the assessment conference assisted by a Kirundi speaking interpreter, Mr Raungu Ramadan. Ms Nzobakenga confirmed that the contents of her written statement were accurate.
[3] BSA’s documents at pages 92-99.
I will first refer to the relevant parts of Ms Nzobakenga’s written statement and then, her oral evidence.

Ms Nzobakenga stated that she was born in Burundi, Africa and is now aged 50 years. Her native language is Kirundi. She cannot read or write English and has a very limited ability to speak and understand English. She finished her schooling in Burundi at the age of 18 years and afterwards gained some work experience as a farm labourer. She is diabetic. She immigrated to Australia in 2007.
Ms Nzobakenga stated that, after arriving in Newcastle, Australia, she had to do an English language course at Newcastle TAFE. However, she was unsuccessful in learning to read, write or speak English after completing the course. In order to receive Centrelink benefits, she was required to actively try and find a job. She and her partner could not find work in Newcastle and friends told them that there was fruit picking work available in Coffs Harbour. They moved to Coffs Harbour to look for work.
Ms Nzobakenga stated that she and her partner were successful in obtaining employment with Costaexchange Pty Limited (Costa). She commenced employment with Costa as a fruit picker on 3 December 2014. Ms Nzobakenga’s usual duties involved picking blueberries, raspberries and other fruit at Costa’s Corindi farm.
Ms Nzobakenga stated that her work at Costa’s Corindi farm involved performing her work on uneven and at times, steep sloping land, in a standing and crouched or bent over position, picking fruit for hours at a time, placing the picked raspberries into trolleys and the blueberries into buckets, which were then placed into larger trays. The trolleys were then pushed and the larger trays were carried back to the sorting area. The work was very physically demanding and was performed in hot conditions.
Ms Nzobakenga stated that her usual working hours were from 6.00am to either 3.00pm or 4.00pm, six days per week. She usually had Sundays off.
Ms Nzobakenga provided a copy of an email from Costa dated 27 January 2022 in respect of her employment and a printout of her gross weekly earnings in the 12 months before she injured her back and right hip at work on 26 March 2019. Ms Nzobakenga calculated her average gross weekly earnings in the 12 months preceding her injury at $761.15.
Ms Nzobakenga stated that, during the period of her employment with Costa, there were a large number of male and female refugees who worked similar hours to hers at the farm. It was a very busy farm and there was plenty of work available for refugees.
Ms Nzobakenga stated that she has been unable to return to work at Costa since 3 March 2020 because of the ongoing pain and restrictions caused by her injury at work.
I will now refer to the relevant parts of Ms Nzobakenga’s oral evidence at the assessment conference.
In response to questions from counsel for BSA, Ms Nzobakenga confirmed that she remains illiterate in English. The extent of her English is saying “hi”. She confirmed that prior to her workplace accident on 3 March 2020, she was employed by Costa.
In response to questions from counsel for QBE, Ms Nzobakenga stated that she brought her personal injury claim to her lawyer and that she did not know of BSA before then. She has known of her for more than a year but they have never been friends. At that point, counsel for BSA advised that the two had never met, which counsel for QBE accepted.
In response to questions from counsel for QBE, Ms Nzobakenga confirmed that she came to Australia in 2007 and lived in Newcastle. She studied English at Newcastle TAFE but explained that those from an African background “went through a lot”. They went to school to study but their brains were not there. Ms Nzobakenga went to learn English but she “couldn’t get it at all”. She did not finish the course. She went to TAFE to learn the language to use at work. However, she was unable to finish the course because she could not focus. She studied English for the whole eight years that she lived in Newcastle but found it difficult. She cannot read road signs except for the ones that say, “stop”.
In response to questions from counsel for QBE, Ms Nzobakenga stated that she is able to take public transport and/or get around the city on her own. She does not know how to say her address in English nor does she know how to write it. Ms Nzobakenga stated that she did not finish high school. She attended elementary school but did not even finish that because her father passed away and she left school and went to work on the farm when she was about 12 or 13 years of age because her mother could not provide for the family. The farm grew potatoes, cabbage and all sorts of things that one would find on a farm. She continued to work on the farm until she left Burundi at the age of about 35 years.
In response to questions from counsel for QBE, Ms Nzobakenga confirmed that her first job in Australia was picking fruit with Costa and commenced in December 2014. She agreed that the experience she had on the farm in Burundi was helpful for her work as a fruit picker.
In response to questions from counsel for QBE, Ms Nzobakenga stated that she had a driver’s licence but because of her back and leg injury at work, she allowed it to expire. She attained her driver’s licence in Australia about five years ago.

Ms Skye Hawkins’ evidence

In evidence, there is a written statement by Ms Skye Hawkins dated 23 August 2022.[4] She also gave oral evidence at the assessment conference. Ms Hawkins confirmed that the contents of her written statement were accurate. I will now refer to the relevant parts of her statement and oral evidence.
[4] BSA’s documents at pages 87-89.
I will first refer to the relevant parts of Ms Hawkins’ written statement and then, her oral evidence.
Ms Hawkins stated that she has been employed by North Coast Settlement Service as a migrant settlement worker since March 2021. One of her main roles is to assist refugee clients in finding suitable employment. Strong focus is placed on supporting refugees to become self-reliant and provide assistance to connect and deal with other mainstream services they may require assimilating into the local community.
Ms Hawkins stated that, in respect of employment specific support, she assists clients by creating their curriculum vitae, which helps to understand their needs and capabilities and identify their potential and transferable employment skills; preparing them for interviews for positions; offering pre-employment and post-placement support for their clients and employers; and creating a network of supportive employer/organisations that assist with introductions of new clients as prospective employees and being proactive in linking those employers, who are looking for staff, with their clients.
Ms Hawkins stated that she met and worked with BSA prior to the motor accident when she was providing training for the Adult Migrant English Program at Coffs Harbour TAFE. She observed that BSA was a content person, engaged and keen to learn English and that she was meeting general settlement milestones as anticipated before the motor accident.
Ms Hawkins stated that her observations of BSA after the motor accident were that of a very different person. She now lives with overt chronic pain that interferes with her general and basic daily activities including her mobility and her capacity to concentrate, apply and focus herself on any task required.
Ms Hawkins stated that, in her experience of dealing with Centrelink on behalf of refugees, it is a requirement that refugees must actively look for work and provide evidence of job seeking in order to continue to receive Centrelink benefits.
Ms Hawkins stated that, in her experience with the refugee community in Coffs Harbour, there are many jobs available for refugees with the following:
(a)   the local blueberry industry doing on-site seasonal picking, pruning, farm maintenance, irrigation, packing and pack house cleaning positions with Oz Group, Benning’s Family and Costa;
(b)   Woolworths performing customer service, fresh produce filling, online shopping order filling and night filling;
(c)   the hospitality industry performing cooking, kitchen-hand work, customer service and takeaway deliveries;
(d)   resorts and motels in cleaning and housekeeping positions with Wyndham Resort, Caribbean Motel, Quality Motor Inn and other motels in the area, and
(e)   aviation security work at the airport.
Ms Hawkins stated that many of the employers referred to above have proactively approached North Coast Settlement Service seeking staff.
Ms Hawkins stated that the COVID pandemic over the past two years has helped job opportunities locally as the seasonal backpack workers who would normally come to the area during blueberry picking season have not been able to travel, leaving a lot of vacancies for the refugee community to fill.
Ms Hawkins stated that employment is a vital part of refugees becoming self-reliant and building a future for themselves and their families. Along with economic security, a job creates a feeling of belonging, being valued and recognises the individual. Beyond economic benefit, employment and increased economic well-being, it acts to empower our refugees by allowing the ability to plan for their future, restores their sense of dignity and regains the sense of self-worth and a sense of belonging.
Ms Hawkins stated that, in her observation, the members of the refugee community are usually very keen to work to support their families; have a strong work ethic; value their jobs; and are very hard-working and reliable employees. As such, their retention rates with local employers are very high and many of her clients are working full-time hours in their jobs.
Ms Hawkins stated that, in her observations of BSA, she was very motivated to learn English and find work in the local area to support her family. In Ms Hawkins’ experience in securing jobs for her clients, BSA would have had no difficulty finding work in the local area in one of the jobs she outlined.
Ms Hawkins reported the award hourly rates of pay under the Cleaning Award at level I full-time as being $22.76; level I part-time as being $26.17; and level I casual as being $28.45. She reported the award hourly rate for a level II full-time and part-time hospitality worker as being $21.72. She reported the award hourly rate of pay under the Horticulture Award as being $25.41.
I will now refer to the relevant parts of Ms Hawkins’ oral evidence at the assessment conference.
In response to a question from counsel for BSA, Ms Hawkins confirmed that she is still employed by North Coast Settlement Service.
In response to questions from counsel for QBE, Ms Hawkins confirmed that her role with North Coast Settlement Service has a focus on employment. North Coast Settlement Service is funded to work with clients for up to five years post arrival and therefore, a lot of the jobs that she supports them to gain, have quite low English language proficiencies. This is where the support is vital because it assists with both pre and post-employment support as well as liaising with the employer directly to help with any barriers. Ms Hawkins stated that it was common in her experience for employment services to suggest that English skills be improved before finding work. Ms Hawkins stated that, once clients gained employment, their English speaking skills accelerated because it gave them the opportunity for real life English acquisition.
In response to questions from counsel for QBE, Ms Hawkins stated that she has attended proposed jobsites at the blueberry farms and some other workplaces including New Horizons and some of the resorts in Coffs Harbour. Ms Hawkins disagreed that there had to be a baseline level of ability to communicate with staff on the farm because the work did not involve a lot of dialogue. In cases where there are clients that have lower English language skills and because employers are so desperate for staff, they involve them in teaming. They team a worker with lower English language skills with one who has higher English language skills and get around it that way. If required, with onboarding, interpreters are arranged to relay any important information.
In response to questions from counsel for QBE, Ms Hawkins stated that a lot of these employment opportunities have arisen since COVID when all the borders were closed and employers were unable to get backpackers. In such circumstances, the employers were glad to give the refugee community a chance. Ms Hawkins thought that the situation could potentially change with the opening up of borders and competition from backpackers. However, in terms of retention of employees, the refugee community are here to stay and the employers know this. The employers have trained them and by retaining them and not having a high turnover of backpackers, they avoid the constant training. Further, the refugee community has a very strong work ethic. COVID allowed all these benefits to be disclosed.
In response to a question from counsel for QBE, Ms Hawkins conceded that it would be unusual for an adult in their mid-40s not to have worked before.
In response to questions from counsel for QBE, Ms Hawkins stated that, in respect of the blueberry farm jobs, a driver’s licence seemed to be required but she noted that the workers do carpooling to get around that. Ms Hawkins stated that, she has spoken to the farm employers and had conversations about providing the workers with buses. She was aware that employers were doing that for some cohort but the families themselves tend to carpool. A lot of the females working in the local resorts in the Coffs Harbour central business district (CBD) catch public transport or are driven to work by their husbands.
In response to a question from counsel for QBE, Ms Hawkins stated that it was assumed that people’s English proficiency levels enabled them to get around the city and do things.
In response to questions from counsel for BSA, Ms Hawkins stated that she was aware that BSA had not been employed back home in Iraq. She further stated that she did not believe that, in her experience and in dealing with BSA, it would have been an impediment to her realising her ambitions of employment. A lot of her clients are female who have not been previously employed. Ms Hawkins stated that she seeks out her clients’ existing skills in their lives at home or their experiences as a refugee and identifies the skills that can be directly transferable to positions in the hospitality industry, like cooking, cleaning or housekeeping. BSA not having any experience in farming would not have prevented her from realising employment as a berry picker because training is provided by the employer. BSA not having experience as a professional cleaner at a motel or other facility would not have prevented her from realising employment as a cleaner in such employment. BSA not having a driver’s licence would not have prevented her from obtaining employment. A lot of the house keeping jobs of female clients are all within walking distance of the Coffs Harbour CBD of which many of them are resident.

Ms Deborah Ngubia’s evidence

In evidence, there is a written statement by Ms Deborah Ngubia dated 18 August 2022.[5] I will now refer to the relevant parts of her statement.
[5] BSA’s documents at pages 85-86.
Ms Ngubia stated that she has been employed by Settlement Services International (SSI) as a case manager since November 2017. SSI is a community organisation that provides support to newly arrived migrants from a refugee background under the humanitarian support program to help them settle and assimilate into Australian society. SSI links them with and attends appointments with relevant services so that they can reach their full potential after their arrival in Australia.
Ms Ngubia stated that BSA was her client through SSI from November 2017 following the relocation to Coffs Harbour as a Kurdish refugee from Iraq. Prior to being supported by SSI, BSA was with Anglicare.
Ms Ngubia stated that, from her dealings with BSA over a period of 12 months, she observed her to be very happy in Coffs Harbour with her family. She was very motivated and keen to learn English and then find a job to support her family both here and back in Iraq.
Ms Ngubia stated that she assisted BSA to enrol in the Adult Migrant English Program course at Coffs Harbour TAFE. The course originally took 510 hours to complete and BSA had been attending 44 hours per fortnight prior to the motor accident. Ms Ngubia observed that BSA was enjoying the course and had made advancements in learning English prior to the motor accident. She was looking forward to finding a job after she completed the course and obtained a driver’s licence. She was learning how to use the local bus service and how to get around before the motor accident.
Ms Ngubia stated that she assisted BSA in attending an appointment with ETC Employment Agency, who prepared an employment plan for her. With the support of the Refugee Clinic at Coffs Harbour Health Campus, SSI linked BSA to Dr Platt.
Ms Ngubia observed that BSA was close to her family and enjoyed playing with her grandchildren. She was entirely self-sufficient with her personal care, cooking, cleaning and other domestic chores.
Ms Ngubia stated that, in her experience when dealing with Centrelink on behalf of migrants from a refugee background, it was a requirement that they actively look for work and provide evidence of the same to Centrelink or a job active provider in order to continue to receive benefits.

Ms Ngubia stated that, based on her experience with the migrant refugee community in Coffs Harbour, there are a lot of jobs available during the fruit picking season. The work involved picking and packing blueberries and raspberries in Coffs Harbour and Woolgoolga. There is also a lot of work in motels and commercial cleaning.
Ms Ngubia stated that she was aware that BSA had been involved in a very serious motor accident on 7 November 2018. Ms Ngubia ceased being BSA’s case manager shortly after the motor accident. She was aware that BSA had been in hospital for many months undergoing rehabilitation and that she had put her English course on hold.
Ms Ngubia stated that she has seen BSA occasionally since the motor accident and enquired as to her progress. She was aware that she had resumed the English course but now only attended once per week. She observed that BSA had changed dramatically since the motor accident and was no longer the person she knew before. Ms Ngubia is very sad when she sees BSA now. In the most recent catch-up about a month ago, Ms Ngubia observed that BSA appeared very depressed and in a great deal of pain. She presented with a flat affect and has lost the motivation and happiness she had prior to the motor accident.
Ms Ngubia stated that, due to the ongoing pain in her hip, BSA is unable to enjoy playing with her grandchildren, go on walks or get out and socialise the way she used to before the motor accident. She observed that BSA has difficulty getting around and that she now uses a walker or an electric scooter to do so. She is unable to go further than the local area unless she can use a disabled access bus or her son is able to drive her.
Ms Ngubia stated that, given BSA’s pain and restrictions since the motor accident, she did not believe that she would be able to work in fruit picking, packing or as a cleaner because the work is physically demanding. Further, Ms Ngubia was unable to think of any other jobs she could realistically do in Coffs Harbour given her illiteracy and lack of work experience.

Mr Matthew Birkett’s evidence

In evidence, there is a written statement by Mr Matthew Birkett dated 23 August 2022.[6] I will now refer to the relevant parts of his statement.
[6] BSA’s documents at pages 83-84.
Mr Birkett stated that he has been employed by North Coast Settlement Service as a client support officer since April 2019.
Mr Birkett stated that North Coast Settlement Service is an organisation created by the St Vincent de Paul Society which assists newly arrived immigrants by providing information, advice, advocacy and referrals to other bodies to help them assimilate into Australian society and become self-reliant by providing them with life skills to operate independently after their arrival.
Mr Birkett stated that BSA has been a client of his through North Coast Settlement Service since August 2020. He noted that BSA arrived in Australia as a Kurdish Yazidi refugee from Iraq in 2017.
Mr Birkett stated that, from his discussions with BSA, he was aware that she was involved in a very serious motor accident on 7 November 2018 in which she suffered dreadful injuries to her right hip, right leg, left shoulder, back and neck. During BSA’s surgeries and rehabilitation, he was the nominee for Centrelink and reported on behalf of BSA over a period of time. He liaised with her physiotherapist, case manager, job providers and social housing providers. In respect of her injuries he has liaised and assisted other stakeholders with applications for Disability Support Pension and National Disability Insurance Scheme (NDIS). He has also worked closely with and assisted BSA in engaging with lawyers, organising interpreters and assisting her in understanding legal documents and processes.
Mr Birkett stated that he was aware that, prior to the motor accident, BSA was enrolled with Coffs Harbour TAFE in an English course and that she was enjoying the course and had made advancements in learning English prior to the motor accident. BSA told him that, prior to the motor accident, she was looking forward to and was committed to learning English and to gaining employment. Her goal was to be independent and not rely on the government for support.
Mr Birkett stated that, in his experience in dealing with Centrelink on behalf of refugees, it is a requirement that in order to continue to receive Centrelink benefits, refugees are required to actively participate in looking for work and provide evidence of the same to Centrelink.
Mr Birkett stated that, whilst he was not in his current job the time of the motor accident, since his employment began, he has observed an increase in the numbers and types of employment within the culturally and linguistically diverse community. The number of employers who are happy with and seeking former refugee employees has also increased. He has witnessed his clients, many with low English proficiency, expand from primarily working in the blueberry/raspberry picking industry into commercial cleaning, hotel work, supermarket work and hospitality.
Mr Birkett stated that he has had the opportunity to observe BSA in his office, at home and out in the community and has concluded that she has suffered greatly as a result of the injuries and disabilities suffered as a result of the motor accident. She appears to be in constant pain and continuously changes from sitting to standing and rubbing her hip, back and leg. She appears to be very restricted in her movements once she is off her motorised scooter. She has expressed to him how difficult the situation is as she used to enjoy walking everywhere and she can no longer be active.
Mr Birkett stated that BSA has often expressed to him the desire to live independently as she feels that she is a constant burden on her son, with whom she lives, along with his wife and two children. He noted that BSA originally lived with her eldest son, who tragically died in a drowning accident in 2019 and that she moved out of that home eight months after his death as a result of tensions with her daughter-in-law.
Mr Birkett stated that BSA continues to receive Centrelink benefits and is currently on Job Seeker. She continues to attend job network appointments. However, based on his observations of her injuries and ongoing pain and restrictions, he does not believe that he could find work for her in the Coffs Harbour area, bearing in mind that she does not speak English and is illiterate.

Ms Regina Cullen’s evidence

In evidence, there is a written statement by Ms Regina Cullen dated 25 August 2022.[7] I will now refer to the relevant parts of her statement.
[7] BSA’s documents at pages 90-91.
Ms Cullen stated that she has been employed by TAFE NSW as a casual teacher for 14 years. She teaches English to refugees as part of the Adult Migrant English Program. She was the coordinator of the entry level of the Adult Migrant English Program when she met and taught BSA prior to the motor accident.
Ms Cullen stated that she observed BSA to be a very bright, focused and committed student. She was a very happy and friendly person. She had not had any formal education in Iraq and was illiterate. Like many refugees she had taught, BSA was really enjoying the opportunity to learn a new language and receive an education.
Ms Cullen stated that her observations of BSA since the motor accident were that of a totally different person. When she returned to continue the course after the motor accident, she needed to use her scooter to get around. It was apparent that she was in terrible pain. She had a lot of trouble sitting for longer than 10 minutes and would have to get up and move around. This affected her ability to concentrate and focus on her coursework. During breaks, her daughters, who were also at the TAFE, would often help her and she would lie down and rest.
Ms Cullen stated that BSA had described to her the constant, awful pain in her hip and back. She could see the terrible discomfort and pain she was in from her facial grimaces. She would try and assist by providing massages to BSA during class to try and ease her pain.
Ms Cullen observed that BSA’s personality had changed since the motor accident. She is now very quiet, flat and sad. BSA’s attendance at TAFE dropped off once her daughters moved to the other campus.
Ms Cullen stated that she was aware that, several Iraqi refugees from the cohort who started the Adult Migrant English Program with BSA, had gone on to find good jobs. One lady in her sixties, works as a kitchen hand at a local restaurant. Other refugees have found work cleaning machines with OzGroup, who farm blueberries on a large-scale. Other refugees have found work as cleaners in local motels or in retail jobs such as Woolworths. Ms Cullen opined that there was plenty of work for their refugees locally. Based on her observations, the refugees are very reliable, dedicated and hard-working people. They are highly valued by local employers.

BQA’s evidence

In evidence, there is a written statement by BQA dated 24 August 2022.[8] I will now refer to the relevant parts of his statement.
[8] BSA’s documents at pages 81-82.
BQA stated that he is the son of BSA and that she emigrated from Iraq to Australia and settled in Coffs Harbour with his brother, BOC, his wife and children in September 2017. Two of his sisters have also settled in Coffs Harbour. BQA remained in Iraq until 11 November 2019 when he was able to emigrate to Australia and settle in Coffs Harbour.
BQA stated that his mother had never been able to go to school as a child and that she could not read or write. Prior to the motor accident, his mother was a happy hard-working and devoted mother, who loved her family and lived to care for her six children. She had worked very hard raising he and his siblings during a very difficult and dangerous time in Iraq. She did most of the cooking and cleaning of their home in Iraq before they had to leave when ISIS arrived.
BQA stated that his mother was very happy when she settled in Coffs Harbour. She told him that she used to enjoy studying English and was looking forward to finding work through the settlement service that was assisting her. Now that her children have grown up, she wanted to go out and work and support her family here and back in Iraq.
BQA stated that his mother had told him that she used to enjoy going on long walks along the beach, going on drives with the family and playing with her grandchildren. She enjoyed socialising with other members of the Kurdish community at communal dinners.
BQA stated that, at the time of the motor accident, he was still in Iraq and that when he was able to speak to his mother she told him that she was in a great deal of pain and that she had been in hospital for a long time and undergone several operations. He could tell that she was very sad and down.
BQA stated that his brother, BOC, disappeared whilst swimming at Woolgoolga in April 2019 and that his body was never found but he was believed to have drowned. It was a very sad and difficult time for all the family, especially his mother. The relationship between BOC’ wife and his mother went downhill after his death and she moved in with BQA and his wife after they arrived in Coffs Harbour.
BQA stated that his mother is a very different person since the motor accident. She is very sad and depressed. She spends most of the time resting at home lying down because it is painful for her to stay seated for very long. She complains to him about being in a lot of pain most of the time and he can see it in her face. She becomes frustrated because she is unable to help around the home. She has difficulty concentrating, remembering things and she is often vague. She uses a walking stick to move around and moves very slowly. She also has a mobility scooter that she uses to get around locally. She can no longer go on the long walks she used to enjoy. If she needs to attend appointments or go shopping, he usually drives her.
BQA stated that, based on his dealings with Centrelink, he understands that it is a requirement of Centrelink that refugees must actively look for work and provide evidence of the same to Centrelink in order to continue to receive benefits.
BQA stated that he had recently established his own grocery and retail store business in Nambucca Heads, which is about 30 minutes’ drive south of Coffs Harbour. He now needs to work long hours establishing his business and as such, he does not have the time to provide assistance to his mother to the same extent as before.
BQA stated that his mother wants to live on her own because she feels that she is a burden to he and his family.

The evidence of the treatment providers

In evidence, are the NSW Ambulance patient care report form and computer-aided dispatch incident report dated 7 November 2018 and 8 November 2018.[9] The documents did not include the details of BSA’s transportation from the accident scene to Coffs Harbour Hospital. The document dated 7 November 2018 recorded that BSA was hit by a car at about 50km/h and suffered a dislocated and fractured shoulder and a dislocated hip. She was to be transferred to Coffs Harbour airport for the purpose of being flown to Newcastle for admission to John Hunter Hospital but due to bad weather, the transfer did not take place until 8 November 2018.
[9] BSA’s documents at pages 25-32.
Whilst in Coffs Harbour Hospital on 7 November 2018, BSA came under the care of Dr Broadhead. She underwent extensive medical imaging, which revealed, amongst other things, a fracture dislocation of the left shoulder and an anterior dislocation of the right humeral head with an associated fracture of the anterior lateral margin and an impacted acetabular fracture with moderate pelvic sidewall haematoma without evidence of bleeding. She was given procedural sedation and underwent a left shoulder enlocation and right transfemoral traction by Dr Broadhead. Dr Broadhead arranged for BSA to be transferred to John Hunter Hospital under the care of Professor Balogh.[10]
[10] BSA’s documents at page 143.
On 8 November 2018, BSA was admitted to John Hunter Hospital under the care of Professor Balogh. The John Hunter Hospital discharge summary dated 23 November 2018 recorded that BSA’s injuries included a right impacted acetabular fracture with central dislocation of the femoral head that had been relocated in Coffs Harbour Hospital; a transverse pubic rami fracture; and a left humeral head fracture dislocation that had been relocated in Coffs Harbour Hospital.[11]
[11] BSA’s documents at page 544.
On 12 November 2018, BSA underwent an open reduction and internal fixation of her right acetabulum by Professor Balogh at John Hunter Hospital.[12]
[12] BSA’s documents at page 545.
BSA’s left shoulder was reviewed by Dr Petrelis, who noted a significant greater tuberosity injury with rotator cuff involvement. On 16 November 2018, BSA underwent an open reduction and internal fixation of her left proximal humerus by Dr Petrelis at John Hunter Hospital.[13]
[13] BSA’s documents at page 545.
On 23 November 2018, BSA was discharged from John Hunter Hospital back to Coffs Harbour Hospital.[14]
[14] BSA’s documents at pages 544-555.
On 23 November 2018, BSA was re-admitted to Coffs Harbour Hospital and discharged on 15 April 2019.[15] BSA’s hospitalisation was complicated by recurrent right hip surgical wound infections. On 28 November 2018, BSA underwent a right hip wound washout and debridement. On 1 December 2018, BSA underwent a repeat right hip wound washout, debridement and vacuum assisted closure of the wound (VAC) dressing. On 3 December 2018, BSA underwent a debridement and closure of her right hip wound.[16] BSA was initially provided with intravenous antibiotics and subsequently, oral antibiotics over a prolonged period (6 to 12 months).
[15] BSA’s documents at pages 132-141.
[16] BSA's documents at page 134.
During the second period of her hospitalisation at Coffs Harbour Hospital, BSA underwent X-rays to her left shoulder on 29 November 2018 and 27 December 2018; X-rays to her pelvis on 27 December 2018, 28 December 2018, 4 February 2019 and 8 April 2019; a CT scan of her pelvis on 20 February 2019; and an ultrasound of the right hip on 22 February 2019.[17] She also underwent physiotherapy.[18] During her hospital admission, BSA consulted Professor Balogh by telehealth. He advised that she needed to stay active and participate in physiotherapy to encourage ongoing healing of the right hip. BSA was also managed by Dr Jin during the period of her admission. On discharge from Coffs Harbour Hospital, BSA was mobilising with crutches and was advised to participate in ongoing rehabilitation to ensure there was no decline.[19]
[17] BSA's documents at pages 139-140.
[18] BSA's documents at page 141.
[19] BSA's documents at page 137.
The Coffs Harbour Hospital discharge referral notes dated 15 April 2019 noted that BSA had suffered post-operative anaemia and was transfused two units of packed red cells.[20]
[20] BSA's documents at page 134.
The Coffs Harbour Hospital discharge referral notes dated 15 April 2019 noted BSA’s neuropathic pain and her reports of ongoing tingling/burning pain in her right foot, calf, thigh and toes. She also complained of pain from the right hip all the way down the right leg to the foot.[21]
[21] BSA's documents at page 135.
The Coffs Harbour Hospital discharge referral notes dated 15 April 2019 referred to BSA’s major depressive disorder, post-traumatic stress disorder and hallucinations during her admission. The notes recorded that BSA had a long-standing major depressive disorder worsened by the motor accident. She was reviewed by psychiatry, commenced on Sertraline 25mg and later, Duloxetine 60mg to assist with analgesia. However, BSA commenced to hallucinate and the dosage of Duloxetine was reduced to 30mg. Due to ongoing issues with suicidal ideation and low mood, psychiatry increased the Duloxetine dosage to 60mg. It was noted that, a few weeks prior to the time of discharge, BSA lost her son in a swimming incident and BSA was quite teary and upset. She was commenced on Mirtazapine 30mg. In the days preceding her discharge, she experienced auditory hallucinations involving her deceased son. In respect of post-traumatic stress disorder, the notes referred to BSA’s history of being a refugee and experiencing flash backs of the motor accident. The notes stated that BSA would likely require psychotherapy as an outpatient.[22]
[22] BSA's documents at page 135-136.
On 28 March 2019, Mr Gerard de Carle, senior occupational therapist at the acute stroke/rehabilitation unit of Coffs Harbour Health Campus conducted an activities of daily living assessment in respect of BSA.[23] Mr de Carle reported a history of presenting condition and social history that was consistent with the evidence.
[23] BSA's documents at pages 126-130.
Mr De Carle reported that BSA was currently weight-bearing as tolerated and using crutches for all mobility. She was trialled with a walking stick but mobility increased her right hip pain. He recommended that she use Canadian forearm crutches in the home and axilla crutches for outdoor mobility. She was unable to mobilise up and down slopes with crutches due to increased right hip pain and lack of confidence. She had difficulty with lower sit/stand transfers because of right hip pain. She was unable to complete bed transfers unaided due to left shoulder reduced strength and functional use.
Mr de Carle reported that BSA was unable to complete domestic cleaning tasks due to the need to use crutches. She was able to complete light duties and tasks. She was unable to attend community activities such as shopping, banking and other errands due to her limited mobility tolerance with increased right hip pain. Mr de Carle made recommendations for assistive equipment to aid in her safe participation in personal, domestic and community activities of daily living. He made recommendations in respect of carer assistance, domestic cleaning and laundry, shopping and transport.

On 3 June 2019, BSA underwent X-rays of her thoracic spine and left knee and an MRI scan of her lumbar spine by Dr Mitchell, radiologist.[24] In respect of the thoracic spine, Dr Mitchell reported no abnormalities apart from a mild scoliosis convex to the right, centred at T5. In respect of the left knee, Dr Mitchell reported moderate narrowing of the medial femorotibial compartment; mild spurring of the articular margins of the patellofemoral joint; moderate joint effusion; a small opacity projected posterior to the knee joint, which may represent a loose intra-articular body; a fabella; and normal soft tissues. In respect of the lumbar spine, Dr Mitchell reported a loss of the normal lumbar lordosis, which may be seen with muscle spasm and no other gross structural abnormality.
[24] BSA's documents at pages 628-630.
On 5 June 2019, Dr Platt referred BSA to Dr Jin for rehabilitation.[25]
[25] BSA's documents at pages 580-581.
On 11 June 2019, Dr Platt referred BSA for physiotherapy at Baringa Rehabilitation, noting that her left knee pain was worsening.[26]
[26] BSA's documents at pages 582-583.
On 27 June 2019, Dr Platt referred BSA to Ms Colleen Friel, occupational therapist for assessment.[27]
[27] BSA's documents at pages 584-585.
On 5 July 2019, Dr Platt referred BSA to Mid North Coast Therapy Group for psychological counselling.[28]
[28] BSA's documents at pages 586-587.
On 18 September 2019, BSA underwent an MRI scan of her cervical spine by Dr Mitchell.[29] Dr Mitchell reported no significant encroachment on the neural elements throughout the region examined.
[29] BSA's documents at page 631.
On 12 November 2019, BSA underwent a CT scan of her pelvis and right hip by Dr Chandramouli Bharati, radiologist.[30] Dr Bharati reported a previous internal fixation of a fracture involving the right acetabular roof and the posterior wall; osteoarthritic changes involving the right hip joint with significant reduction in joint space; subchondral sclerosis; and cyst formation. The left hip was of normal appearance.
[30] BSA's documents at pages 632-633.
On 13 November 2019, Dr Platt referred BSA to Dr Broadhead.[31]
[31] BSA's documents at pages 588-589.
On 20 November 2019, Dr Broadhead reported to Dr Platt that BSA had consulted him that day.[32] He noted that he was on call at Coffs Harbour Hospital on the day of the motor accident and was involved in the first temporary measures of BSA’s care, including the insertion of a traction pin through her distal femur. In the motor accident, she had suffered a complex hip and acetabular fracture that required internal fixation at John Hunter Hospital. Thereafter, she returned to Coffs Harbour Hospital and experienced a number of issues with wound infection at the right hip that required repeat debridement. He observed that the wound was now well-healed and there was no sign of residual infection. Dr Broadhead reported that BSA’s main problem was a lot of pain centred at the right hip and groin. Current medication included Lyrica, Panadeine Forte and Mirtazapine.
[32] BSA's documents at pages 567-569.
On examination, Dr Broadhead observed that BSA walked with an antalgic gait pattern; she had internal rotation of 15° with hip flexion and was impingement positive and became very uncomfortable in that position; she had external rotation of 25°; and very gentle internal and external rotation was tolerable. A review of a recent CT scan of the right hip demonstrated that the internal fixation was in situ without loss of fixation and that there were arthritic changes in the hip joint itself with loss of joint space and juxta-articular cysts.
Dr Broadhead opined that BSA had post traumatic right hip arthritis causing significant disability and pain. He further opined that she would benefit from a total hip replacement and noted that it would be a difficult procedure given the amount of fixation in place. He referred her for an ultrasound guided injection in the right hip joint of local anaesthetic and cortisone but noted that, in the long run, a total right hip replacement was her best chance for pain relief. The ultrasound guided injection would be a good indicator as to whether a hip replacement would be beneficial.
On 30 January 2020, BSA underwent an ultrasound guided corticosteroid injection into her right hip targeting the femoral head neck junction by Dr Glyn Llewellyn-Jones.[33]
[33] BSA's documents at page 579.
On 12 February 2020, Dr Broadhead reported to Dr Platt that BSA had consulted him that day.[34] Dr Broadhead noted that, since the last consultation, BSA had tried an intra-articular corticosteroid injection that helped her pain somewhat but did not reduce it to a tolerable level. He opined that she should proceed with a right total hip replacement. They discussed the same and BSA decided to proceed.
[34] BSA's documents at page 570.
On 31 March 2020, BSA underwent a right hip ultrasound by Dr Bharati.[35] Dr Bharati reported atypical hypoechoic soft tissue underlying the surgical scar site along the right lateral inferior abdominal wall, which may reflect a prominent focus of scar/granulation tissue or an area of fatty necrosis; overall appearances were mildly atypical and further assessment by MRI was recommended; the gluteus minimus and medius tendons were thin but grossly intact; and there was no sonographic evidence of trochanteric bursitis.
[35] BSA's documents at page 635.
On 27 July 2020, Dr Platt referred BSA back to Dr Broadhead advising that she continued to complain of severe right hip and right leg pain and had decided to proceed with surgery to improve her quality of life.[36]
[36] BSA's documents at page 590.
On 25 August 2020, Dr Broadhead reported to Dr Platt that BSA had consulted him that day.[37] Dr Broadhead noted that at the last consultation BSA was ready to undergo a total right hip replacement. As her symptoms had resolved somewhat, her surgery was postponed. BSA now presented with increasing pain around the right hip region, which he opined was due to post-traumatic osteoarthritis. He noted that BSA was struggling to walk and would now like to proceed with the surgery. Dr Broadhead also noted that BSA sustained a left shoulder dislocation at the time of the motor accident and that she was experiencing pain on and off. He recommended that she undergo an MRI scan of her left shoulder.
[37] BSA's documents at pages 571-572.
On 4 October 2020, Dr Platt referred BSA to Dr Ali for rehabilitation following her total right hip replacement surgery scheduled to take place at Baringa Private Hospital on 7 October 2020.[38]
[38] BSA's documents at pages 594-595.
On 8 October 2020, BSA underwent a right hip X-ray by Dr Bryan Fain, radiologist.[39] Dr Fain noted the total hip replacement and internal fixation of the right hemipelvis and reported that the prothesis was well seated with good alignment; there was an apparent shortening of the right hemipelvis height; and there were no other complications evident.
[39] BSA's documents at page 636.
On 17 November 2020, Dr Broadhead reported to Dr Platt that BSA had consulted him that day.[40] Dr Broadhead noted that the consultation took place seven weeks after BSA’s total right hip replacement. She had been doing well after a short stay in the Baringa Private Hospital rehabilitation ward. The pain in her right hip and groin had now gone. She was mobilising with a four wheel walker. She was happy with the result of the surgery but had ongoing right sided back and flank pain which was not coming from the hip joint. She also complained of bilateral upper limb numbness and pain radiating from the elbows into the hands. It was worse at night and was consistent with carpal tunnel syndrome. However, her carpal tunnel syndrome symptoms seemed to be improving and Dr Broadhead decided not to investigate it any further. Dr Broadhead arranged for a left shoulder MRI scan. He noted that BSA’s left knee was painful and had not been previously investigated and arranged for a left knee X-ray.
[40] BSA's documents at pages 573-574.
On 16 December 2020, Dr Broadhead reported to Dr Platt that BSA had consulted him that day.[41] Dr Broadhead reviewed the results of BSA’s left shoulder MRI scan and her left knee X-ray. The left knee X-ray demonstrated osteoarthritis that had not developed since the injury, that is, it was pre-existing and had become symptomatic since the injuries to her right lower limb, including pelvic fracture and hip replacement. It was a secondary medical issue. In respect of the left shoulder MRI scan, Dr Broadhead reported that it demonstrated infraspinatus and teres minor tears. However, there was significant movement when the scan was performed and therefore, the imaging was not as clear as it could have been.
[41] BSA's documents at pages 575-576.
Dr Broadhead opined that BSA had undergone multiple surgeries and he did not feel that further surgery would benefit her. However, in the future and if she were stronger, a total left knee replacement would be an option. In respect of her left shoulder, he opined that she ought to have ongoing physiotherapy. He felt that she would really struggle following a surgical repair of the rotator cuff. He noted that BSA will continue to see her physiotherapist at the Baringa Private Hospital and would now receive treatment for her left knee osteoarthritis as well as her left shoulder rotator cuff tear.
On 2 February 2021, Dr Doris reported to Dr Platt that BSA had consulted him that day.[42] The consultation was assisted by the use of a telephone interpreter. Dr Doris took a history that was consistent with the evidence. On mental state examination, Dr Doris observed that BSA arrived unaccompanied on a mobility scooter, used a walking stick and walked with obvious discomfort. She was also in physical discomfort when sitting and several times during the meeting, had to stand for a few minutes to ease her discomfort. Eye contact was fleeting and her speech was generally quiet. She appeared downcast and described very prominent feelings of loss and bereavement relating to the death of her son two years previously and her disappointment on the hoped-for better life in Australia. She denied suicidal thoughts and her thought form was normal. There were no apparent delusions or abnormal perceptions. She appeared grossly cognitively normal.
[42] BSA's documents at pages 608-609.
Dr Doris observed that BSA appeared to be a 48-year-old woman who had experienced considerable trauma over many years, including in Iraq and following the tragic death of her eldest son two years previously shortly after she was involved in a serious motor accident, which has left her with disability and chronic severe pain. Though she has some support in the community, she feels unwelcome in her son and daughter-in-law’s home and finds it very difficult to talk about the loss of the eldest son. Dr Doris opined that BSA was suffering from a major depressive episode, which was chronic and complicated by bereavement and chronic pain. He noted that it was quite possible that BSA also had a post trauma syndrome, though that was not possible to fully consider at the consultation.
In respect of future management, Dr Doris opined that the best approach would be one that was culturally informed. Dr Doris observed that it was clear that BSA was experiencing considerable pain arising from her motor accident as well as physical disability and thought that it may be useful for her to be involved in a pain management program such as the one at Baringa Private Hospital, once she had recovered from her hip replacement surgery. He recommended that she remain on her current antidepressant medications in the form of Duloxetine and low dose Mirtazapine. He noted that she was also taking Tramadol, which could be problematic in terms of its interactions with Duloxetine. Dr Doris did not arrange for BSA to consult him again unless Dr Platt thought that it would be helpful.
On 7 April 2021, Dr Platt referred BSA to Dr Ali for pain management.[43]
[43] BSA's documents at pages 596-597.
On 19 April 2021, Dr Broadhead referred BSA to Dr Ali for ongoing rehabilitation and chronic pain management.[44]
[44] BSA's documents at page 578.
On 20 May 2021, Dr Ali reported to Dr Broadhead that BSA had consulted him that day with the assistance of an interpreter by telephone.[45] Dr Ali noted that BSA had chronic right hip pain on the background of right acetabular fractures due to the motor accident and underwent a total right hip replacement on 29 October 2020 [incorrect date]. There was ongoing severe and constant pain following the hip replacement. Sitting hurts her more. She also reported pain in the left knee at night, especially when she sits down. BSA’s right hip crushing pain radiated to the right knee. Dr Ali noted that she had been mobilising independently with a four wheeled walker.
[45] BSA's documents at pages 610-612.
On examination, Dr Ali observed that BSA’s affect was low; she was able to mobilise with full weight-bearing; she was able to do single leg stands bilaterally on both lower limbs without difficulty; there were no bowel or bladder issues; there was no tenderness of the spine or the sacroiliac joints; there was stiffness and tenderness of the paraspinal muscles; there was no tenderness over the greater trochanters of the hip joints; and there was tenderness over the right latissimus dorsal muscle.
Dr Ali concluded that BSA was suffering from multifactorial pain with an underlying psychosocial component as well as a predominant neuropathic component.
Dr Ali requested Dr Platt to organise, amongst other things, an increase in the dosage of Duloxetine to 60mg and Pregabalin to 225mg; commence weaning off Palexia in weekly increments of 10% in dose until completely weaned off; arrange for a CT scan of the lumbosacral spine and right hip to check for neural compression; arrange for blood tests; arrange for a referral to a clinical psychologist for regular cognitive behaviour therapy and hypnosis; and arrange for a referral to a psychiatrist.
On 23 June 2021, Dr Platt referred BSA to Ms Kathy Ward of Baringa Rehabilitation in respect of her left shoulder and right hip pain.[46]
[46] BSA's documents at pages 598-599.
On 22 July 2021, Dr Ali reported to Dr Platt that BSA had consulted him that day with an interpreter present.[47] Dr Ali noted BSA reported deep pain in the right leg up to the knee with a cold sensation; numbness in the right lower limb from the right hip to the right foot on the lateral aspect since the motor accident; a lump in the right groin since the motor accident; low mood; and a poor sleep pattern.
[47] BSA's documents at pages 613-614.
On examination, Dr Ali observed that BSA did not have allodynia; power was 4+/5 distally in the upper and lower limbs with intact pulses to dorsalis pedis palpation bilaterally in the feet; and normal capillary refill.
Dr Ali requested Dr Platt to arrange for a referral to Dr Clarke to ascertain whether there was any benefit in undergoing a nerve block to manage the pain or surgical pain intervention; arrange for autoimmune and rheumatology screening; increase the dosage of Duloxetine to 60mg; and continue weaning off Tapentadol (Palexia). Dr Ali reported that, objectively, BSA was very comfortable, her affect had improved and she had markedly improved gait and posture compared to the last review. Dr Ali did not require a further follow-up of BSA on the basis that Dr Clarke would do so.
On 16 August 2021, Dr Platt referred BSA to Ms Wiffen for assessment and treatment aimed at improving her function and quality of life.[48]
[48] BSA's documents at pages 600-601.
On 17 August 2021, Dr Platt referred BSA back to Mid North Coast Therapy Group for further psychological counselling.[49]
[49] BSA's documents pages 602-603.
On 1 September 2021, Dr Platt referred BSA back to Ms Friel for assessment and opinion on her mobility and to assess whether she required a hospital bed at home.[50]

The medico-legal evidence

[50] BSA's documents at pages 606-607.

Dr Alan Hopcroft – 21 July 2020

On 21 July 2020, BSA consulted Dr Alan Hopcroft, general surgeon (orthopaedics), at the request of her former lawyers. In evidence, there is a report by Dr Hopcroft dated 21 July 2020.[51] I will now refer to the relevant parts of that report.
[51] BSA's documents at pages 100-107.

Dr Hopcroft took a history of injury and a detailed history of the treatment undergone by BSA following the motor accident that was consistent with the evidence. He provided a list of medical imaging reports made available to him.[52]
[52] BSA's documents at page 104.
On examination, Dr Hopcroft observed that BSA had a good range of movement in the cervical spine; a full range of movement of the right shoulder; a well-healed anterolateral scar about 4cm in length on the left shoulder, with limited abduction, flexion, internal rotation and external rotation; she walked with a marked right-sided limp; she could carry her weight on the toes of each foot with difficulty; she could go into a loaded flexion crouch to 120° of bilateral loaded knee flexion; she had a massive 30cm scar posterolaterally over the right hip with a smaller anterior scar from two approaches for her pelvic/acetabular fixation surgery; marked restrictions on movement of the right hip joint in flexion, flexion with external rotation, internal and external rotation, abduction and adduction, when compared to the unlimited movement of her left hip joint; a full range of movement in the right knee; and quite marked pain along the medial joint line and pain at the patellofemoral interface of the left knee with no peripheral swelling.
Dr Hopcroft opined that BSA suffered serious orthopaedic injuries to her left shoulder, right hip and left knee in the motor accident.
Dr Hopcroft opined that BSA had been left severely compromised with restrictions in movement of the left shoulder; restrictions and significant pain at her right hip joint; and ongoing and significant pain at the medial and anterior aspect of her left knee joint.
Dr Hopcroft opined that BSA was a candidate for right total hip joint replacement surgery in the longer term.
Dr Hopcroft assessed BSA’s whole person impairment in respect of her physical injuries at 19% (right lower extremity – right hip: 8%; left upper extremity – left shoulder: 8%; left lower extremity – left knee: 2%; and scarring: 2%).

Dr Anthony Dinnen – 14 March 2022

On 2 March 2022, BSA consulted Dr Anthony Dinnen, consultant psychiatrist, at the request of her lawyers. In evidence, there is a report by Dr Dinnen dated 21 March 2022.[53] I will now refer to the relevant parts of that report.
[53] BSA's documents at pages 113-119.
Dr Dinnen listed the documents provided to him and summarised their contents.[54] Dr Dinnen commented that the documentation graphically described the severe injuries suffered by BSA in the motor accident and her subsequent management. He reported that, in respect of his psychiatric assessment, the most relevant documents were from Dr Doris, Dr Broadhead and Dr Hopcroft. Dr Dinnen further commented that BSA is severely physically and mentally disabled.
[54] BSA's documents 115-117.
When taking BSA’s personal history, Dr Dinnen asked about her mental state since the motor accident. BSA responded that she had had two terrible things happen. One was losing her son and the other was the motor accident.
Dr Dinnen described the relevant diagnostic considerations in BSA’s case as follows:
“The predominant causal factor in this patient’s ongoing psychiatric condition is that of traumatic experience, both before and after she came to Australia. The experience of the Yazidis under ISIS his well known, the fact that this patient spent three or four years in a refugee camp before being fortunate enough to come to Australia and that many of her family are still living there under traumatic circumstances, would lead if there were no other factor to severe chronic post-traumatic stress disorder. The death of her son and the motor vehicle accident have compounded these traumatic factors.”[55]
[55] BSA's documents at page 117.

I find that BSA suffers the following ongoing pain, symptoms, difficulties, disabilities and restrictions as a result of the injuries she sustained in the motor accident:
(a)   chronic pain and restriction in the right hip;
(b)   pain, discomfort and restriction in the left shoulder;
(c)   pain, discomfort and restriction in the left knee;
(d)   pain, discomfort and restriction in the right knee;
(e)   neuropathic pain from the right hip into the right lower limb;
(f)    altered gait;
(g)   loss of agility/mobility;
(h)   difficulty balancing;
(i)    difficulty walking for prolonged periods of time without walking aids;
(j)    difficulty walking on uneven surfaces;
(k)   difficulty ascending and descending stairs;
(l)    difficulty standing for prolonged periods of time;
(m)     difficulty sitting for prolonged periods of time;
(n)   difficulty lifting and carrying objects;
(o)   difficulty pushing or pulling objects with the left arm;
(p)   difficulty performing household chores and activities;
(q)   difficulty washing herself;
(r)   difficulty dressing and undressing herself;
(s)   inability to enjoy her pre-injury walks along the beach;
(t)    inability to enjoy playing with her grandchildren;
(u)   inability to enjoy socialising at communal dinners with friends;
(v)   inability to enjoy dancing;
(w)     inability to enjoy going on drives with family and friends;
(x)   numerous permanent unsightly surgical scars;
(y)   difficulty sleeping;
(z)   multifactorial pain with an underlying psychosocial component and a predominant neuropathic component;
(aa)   difficulty participating in social and recreational activities;
(bb)   weight gain;
(cc)    difficulty focussing and maintaining concentration;
(dd)   loss of confidence;
(ee)   poor memory/forgetfulness;
(ff)   fearful;
(gg)   anxious, and
(hh)   depressed.

DAMAGES FOR NON-ECONOMIC LOSS

Having reviewed the evidence and determined the extent of BSA’s injuries and disabilities caused by the motor accident, I now turn to the assessment of damages for non-economic loss.

The legislation and legal principles

Section 1.4 of the MAI Act defines non-economic loss as:
(a)   pain and suffering;
(b)   loss of amenities of life;
(c)   loss of expectation of life, and
(d)   disfigurement.
Section 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
The parties have agreed that the threshold imposed by s 4.11 of the MAI Act has been satisfied and that BSA is entitled to damages for non-economic loss.
Section 4.13 of the MAI Act provides for the maximum amount that may be awarded for non-economic loss, such amount is adjusted annually by operation of s 4.22 of the MAI Act. The applicable maximum amount is the amount as at the date the award is made, in this case, $605,000.
The assessment of non-economic loss damages is conducted according to the conventional common law principles of full compensation with the only restraint being the maximum amount referred to above.[65]
[65] Hodgson v Crane [2002] NSWCA 276; Nominal Defendant v Lane [2004] NSWCA 405 at [45]; Brown v Lewis [2006] NSWCA 87 at [20].
The amount of damages for non-economic loss damages must be fair and reasonable compensation for the injuries received and the disabilities caused.

Submissions

QBE’s submissions

QBE acknowledged that BSA alleged ongoing injuries to her left shoulder, right hip, both knee joints and psychological injuries. In respect of BSA’s psychological condition, QBE relied on Dr Rikard-Bell’s reports dated 19 September 2022.
BSA's ability to lead a normal life was compromised by reason of the tragic death of her eldest son in April 2019 and her experience in Iraq, Syria and Kurdistan, as recorded by Dr Doris, her treating psychiatrist, Dr Dinnen, her medico-legal expert and Dr Rickard-Bell on behalf of QBE.
Dr Doris reported that BSA stated that the death of her eldest son in a drowning accident was easily the largest trauma she had experienced compared to her experiences in Iraq and the motor accident. Dr Doris diagnosed a major depressive episode which was chronic and complicated by bereavement and chronic pain. Dr Doris noted that BSA appeared downcast and described very prominent feelings of loss and bereavement relating to the death of her son and her disappointment in respect of the better life she had hoped for in Australia.
Dr Dinnen reported that, in response to a question about her mental state since the motor accident, BSA stated that two terrible things had happened to her, namely, losing her son and the motor accident.
Dr Rikard-Bell reported that BSA had a previous history of anxiety and depression prior to the motor accident. She underwent some counselling when she arrived in Australia as the move from Iraq was very traumatic. In Iraq she was exposed to a lot of traumas and death. Family members were attacked by Daesh terrorists. Dr Rikard-Bell diagnosed post-traumatic stress disorder as well as a major depressive disorder, largely due to the loss, grief and death of her son.
Taking into consideration BSA’s pre-accident traumas, the tragic subsequent loss of her son in the drowning incident of April 2019 and the injuries sustained in the motor accident, a sum of $250,000 for non-economic loss is appropriate.

BSA’s submissions

BSA relied on the medical evidence submitted in her case.
BSA has suffered the significant orthopaedic and psychological injuries referred to in the medical evidence. She has suffered the ongoing significant disabilities and restrictions referred to in her evidence as a result of the injuries sustained in the motor accident.
BSA claimed the sum of $400,000 for non-economic loss damages.

Consideration and findings

In the motor accident, BSA suffered the physical and psychological injuries and resultant ongoing symptoms, disabilities, difficulties and restrictions referred to in the findings above.
BSA was 45 years of age at the time of the motor accident. She is now aged 50 years. She has endured the considerable ongoing chronic physical pain and psychological symptoms caused by the motor accident for over four years. On the Cumpston Sarjeant Pty Limited actuarial table of Medium Life Expectancy, Australia, 2022, she is likely, on the balance of probabilities, to experience another 36 years of the significant chronic physical and psychological symptoms and resultant ongoing disabilities, difficulties and restrictions referred to in the findings above.
The combined effect of BSA’s chronic physical and psychological injuries and disabilities have significantly affected daily functioning, levels of activity, relationships and future plans. I accept that, prior to the motor accident, BSA was happy, healthy, physically and socially active. Whilst at the time of the motor accident she lived in accommodation with her late son and his family, she was living independently. She performed her TAFE studies, domestic duties, leisure activities and activities of daily living without restriction and without requiring any assistance. She underwent the numerous painful surgical procedures referred to in the evidence. As a result of the motor accident BSA’s quality of life has been significantly affected.
BSA has been unable to fulfill her plan to enter the workforce in the Coffs Harbour area because of her ongoing motor accident related symptoms. BSA’s physical symptoms are aggravated by activities of daily living. Functioning is clouded by her psychological symptoms and the medications she takes.
The assessment of non-economic loss damages is conducted according to the conventional common law principles of full compensation with the only restraint being the maximum amount of $605,000. The amount of damages for non-economic loss damages must be fair and reasonable compensation for the injuries received and the disabilities caused. I do not find QBE’s assessment of non-economic loss damages to be fair and reasonable compensation in the circumstances of this case.
BSA suffers from life-long disabilities which have significantly impacted and will continue to impact her ability to enjoy the activities of daily life. In such circumstances, BSA is entitled to a significant award of damages for non-economic loss.
Accordingly, I assess BSA’s fair and reasonable compensation for non-economic loss at $380,000.

DAMAGES FOR PAST AND FUTURE LOSS OF EARNINGS OR LOSS OF EARNING CAPACITY

The legislation and legal principles

In cases such as Medlin v State Government Insurance Commission[66] and Husher v Husher,[67] the High Court of Australia confirmed that the fundamental questions to be determined in a case such as this are whether BSA has sustained a loss or diminution in her earning capacity and if so, whether that loss or diminution will result in economic loss.
[66] Medlin v State Government Insurance Commission [1995] HCA 5.
[67] Husher v Husher [1999] HCA 47.
Section 4.5(1)(a) of the MAI Act provides that damages may be awarded for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity.
In calculating any economic loss into the future, I must have regard to the provisions of s 4.7 of the MAI Act.
Section 4.7(1) of the MAI Act provides that damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based, accorded with the claimant’s most likely future circumstances but for the injury.
Section 4.7(2) of the MAI Act provides that the amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
Section 4.7(3) of the MAI Act provides that, if an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Section 4.9(1) of the MAI Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. Section 4.9(2) of the MAI Act prescribes a discount rate of 5%.
Section 4.7 of the MAI Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks (Parks)[68] is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine. A buffer for future economic loss in the circumstances of this case is not appropriate.
[68] Penrith City Council v Parks [2004] NSWCA 201.
There are three questions to be answered in assessing income loss:
(a)   what was BSA’s income-earning capacity at the time of injury?
(b)   To what extent was it impaired by the injury?
(c)   To what extent was the impairment productive of income loss?

Submissions

QBE’s submissions

BSA had no education and was illiterate in her own language. She does not have a basic level of functional English. Dr Hopcroft noted the same.
BSA has never undertaken any paid employment in either the Middle East or since arriving in Australia.
BSA was unemployed at the time of the motor accident. She has been on Centrelink benefits since immigrating to Australia on 19 September 2017.
QBE did not dispute that it may have been BSA’s intention to attempt to find a suitable job. However, a mere intention, however sincere, did not automatically translate into an acceptance that the intention would have come to fruition.
BSA’s lay witnesses only went to BSA’s hopes and intentions.
Prior to the motor accident, BSA had not embarked on any training capable of generating a living wage. She lacked the relevant skills and experience and was reliant on Centrelink benefits for income support.
It is highly unlikely that BSA would have intended to work full-time, if she intended to work at all. At the time of the motor accident, she had been in Australia for over 14 months.
Costa required prospective employees to hold a drivers licence and have their own reliable transport. BSA did not fulfill this requirement.
Ms Hawkins did not provide evidence that indicated that BSA had the experience to be deployed in a work environment.
On 28 November 2017, the Centrelink Employment Services assessment report identified no or limited literacy and numeracy skills and cross cultural issues as barriers to BSA’s prospects for employment.
On the application of s 4.7 of the MAI Act, it should not be accepted that BSA would have entered the workforce but for the motor accident.
If the Commission finds that s 4.7 of the Mai Act has been satisfied, then the Commission should take into account the effect of the death of BSA’s son on her employability. Dr Rikard-Bell diagnosed post-traumatic stress disorder as well as a major depressive disorder, largely due to the loss and grief in respect of the death of her son.
COVID-19 had an effect on BSA’s employment prospects and the absence of evidence to the contrary goes against BSA. One just cannot say that Coffs Harbour would not have been affected by COVID-19 related lockdowns.
The Commission is cautioned against taking an ethnocentric approach.
No allowance should be made for past or future economic loss.

BSA’s submissions

BSA’s Centrelink benefits were conditional on her seeking employment. The latter was confirmed by the evidence of Ms Hawkins, a migrant settlement worker of North Coast Settlement Service. On 11 December 2017, BSA entered into a Centrelink job plan and acknowledged the mutual obligation requirements therein.
BSA had every intention of learning English and being employed.
There were many opportunities for employment for BSA and there remain opportunities in the local blueberry industry and as a commercial cleaner. Many refugees make up the local community and many of those refugees have realised their dreams of employment in these industries. There was no reason why BSA could not have and would not have realised those ambitions but for the motor accident.
BSA was a client of Ms Ngubia, a case manager of Settlement Services International from about November 2017. Ms Ngubia’s evidence was that BSA was very motivated to learn English and to find employment to support her family in Australia and back in Iraq.
Ms Ngubia assisted BSA with her enrolment in the Adult Migrant English Program at TAFE. She also assisted her to attend an appointment with ETC Employment Agency, which prepared an employment plan for her. 510 hours of study were required to complete the TAFE Adult Migrant English Program. At the time of the motor accident, BSA was doing 44 hours of study per fortnight.
Ms Ngubia’s evidence was that BSA enjoyed her English studies and was actively looking for work at the time of the motor accident. Further, she was developing skills to improve her prospects of employment. The evidence supports the proposition that BSA was motivated to find employment and was actively involved in improving her prospects to do so.
Ms Hawkins’ evidence was that her role was to assist refugee clients in finding employment through assisting applicants in creating a curriculum vitae, preparing them for interviews, offering pre-employment and post-employment support and providing a network of supporting employers and organisations to place candidates with. Ms Hawkins met BSA when training at TAFE prior to the motor accident. BSA impressed Ms Hawkins as competent, engaging and keen to learn. She was meeting her general settlement milestones.
Ms Hawkins’ evidence was that, based on her experience, there were many job opportunities available for refugees in Coffs Harbour, including the local berry industry, Woolworths, the hospitality industry and in resorts and motels. Many employers were proactively approaching North Coast Settlement Service seeking candidates for employment.
Ms Hawkins’ evidence was that, prior to the motor accident, BSA was very motivated to learn English and find employment. Ms Hawkins’ observation of BSA’s qualities was that she would have had no difficulty in finding employment in the local area in one of the available industries.
BSA had been a client of Mr Birkett, a client support officer of North Coast Settlement Service, since about August 2020. He was aware that BSA had been involved in the motor accident. Mr Birkett’s evidence was that his involvement largely concerned BSA’s rehabilitation and complicated assimilation since.
Mr Birkett’s evidence was that the local employment community coveted persons with low English proficiency to work in the blueberry/raspberry picking industry; in commercial cleaning; in supermarket roles; and in hospitality.
Ms Cullen, BSA’s former TAFE teacher, described BSA as a very bright, focused and committed student prior to the motor accident. Ms Cullen’s evidence was that several Iraqi refugees from the same cohort as BSA had since progressed and found good employment and Ms Cullen provided examples.
On the evidence, had BSA not been injured in the motor accident, she would have followed the same employment path as other refugees.
Ms Nzobakenga’s evidence was that she did not do well in her English studies, travelled from Newcastle to Coffs Harbour and obtained employment as a fruit picker on 3 December 2014.
Although it could be argued that employment as a fruit picker is seasonal, there are cleaning and other opportunities for work between picking seasons. There would have been nothing preventing BSA from working in various roles at various times to the equivalent of full-time continuous employment.
BSA claimed $628.66 net per week from 1 January 2020 to date for past economic loss and superannuation at 11% on the past net loss of earnings.
BSA claimed $679.26 net per week for future economic loss to the age of 67 years less 15% for vicissitudes plus superannuation at 14.33% on the future net loss of earnings.

Consideration and findings

Damages for past loss of earnings or loss of earning capacity

There was no dispute that, at the time of the motor accident, BSA was not in any paid employment, nor had she ever been in any form of paid employment.
I reject QBE’s submission that no allowance should be made for past or future economic loss for the reasons stated below.
I accept BSA’s evidence that it was her intention to seek employment in the Coffs Harbour region once she had a sufficient grasp of the English language. I also accept BSA’s evidence that it was her intention to seek employment in the Coffs Harbour region in order to support her family here and overseas. I accept her evidence that her preference was for work of a commercial cleaning or hotel/motel cleaning nature or as a dish washer in a restaurant.
The unchallenged evidence was that BSA was placed in the STARTTS program and was enrolled at TAFE to undertake a one-year English language course. Ms Ngubia, BSA’s case manager, enrolled BSA with ETC, an employment agency, to assist BSA in finding work.
The unchallenged evidence was that, as a condition of receiving Centrelink benefits, BSA had to actively look for suitable work. Ms Hawkins, Ms Ngubia and Mr Birkett corroborated BSA’s evidence in this regard.
Ms Hawkins’ oral evidence at the assessment conference was given in a forthright manner. I accept Ms Hawkins as a witness of truth. She impressed as a witness who possessed a high level of experience in assisting her refugee clients in the Coffs Harbour area in finding suitable employment and supporting them to become self-reliant by providing assistance in connecting and dealing with other mainstream services required to assimilate into the local community.
I reject QBE’s submission that COVID-19 had an effect on BSA’s employment prospects and that an absence of evidence to the contrary goes against BSA. I accept Ms Hawkins’ unchallenged evidence that the COVID pandemic and the absence of backpackers over the past two years had helped job opportunities by creating a lot of vacancies for the refugee community to fill in the Coffs Harbour area. Ms Hawkins’ evidence in this regard was corroborated by Ms Cullen and Mr Birkett.

I accept Ms Hawkins’ unchallenged evidence of the many jobs available in the Coffs Harbour refugee community at [89] above.
I reject QBE’s submission that Ms Hawkins did not provide evidence that indicated that BSA had the experience to be deployed in a work environment. I accept Ms Hawkins’ evidence that, in her observations of BSA, she was very motivated to learn English and find work in the local area to support her family. I also accept her opinion that, in her experience in securing jobs for her clients, BSA would have had no difficulty finding work in the local area in one of the jobs she had outlined in her evidence.
I accept Ms Hawkins’ evidence that, once her clients gained employment, their English speaking skills accelerated because it gave them the opportunity for real life English acquisition. Ms Hawkins did not believe that, in her experience and in dealing with BSA, a poor command of English would have been an impediment to her realising her ambitions of employment. A lot of her clients are female who have not been previously employed. Ms Hawkins stated that she seeks out her clients’ existing skills in their lives at home or their experiences as a refugee and identifies the skills that can be directly transferable to positions in the hospitality industry, like cooking, cleaning or housekeeping.
Much of Ms Hawkins’ evidence was corroborated by Ms Ngubia and Ms Cullen.
Ms Cullen provided examples of several Iraqi refugees of BSA’s cohort who had gone on to find jobs in the Coffs Harbour area at [135] above, including a lady in her sixties.
Ms Nzobakenga’s evidence was that she did not do well in her English studies. Nevertheless, she travelled from Newcastle to Coffs Harbour and obtained employment as a fruit picker on 3 December 2014.
I reject QBE’s submission that BSA’s “lay witnesses” only went to BSA’s hopes and intentions to find work. The evidence of Ms Hawkins, Ms Ngubia and Ms Cullen went further than corroborating BSA’s hopes and intentions in respect of entering the local workforce. Their opinions in respect of the nature of work available in the Coffs Harbour area over the relevant period and of BSA’s suitability for the same were underpinned by their respective experiences in the refugee community through their jobs. Contrary to QBE’s submission, I am satisfied for the reasons referred to above that BSA’s intention to enter the workforce in the Coffs Harbour area would have “come to fruition”.
I reject QBE’s submission that the Commission should take into account the effect of the death of BSA’s son on her employability for the reasons already stated in rejecting Dr Rikard-Bell’s opinion in respect of the major depressive disorder.
I find that, on the balance of probabilities, BSA’s most likely future circumstances but for the injuries and resultant restrictions caused by the motor accident, would have seen her enter the workforce in the Coffs Harbour region on or about 1 January 2020 as a cleaner or housekeeper in a hotel or motel, after having improved her English speaking skills.
I am not satisfied that BSA would have taken up job offers in the local blueberry industry doing on-site seasonal picking, pruning, farm maintenance, irrigation, packing and pack house cleaning positions. In her evidence, BSA expressed that her preference was for work of a commercial cleaning or hotel/motel cleaning nature or as a dish washer in a restaurant.
I am satisfied that, as a result of the injuries and restrictions I have found were caused by the motor accident, BSA has sustained a loss or diminution in her earning capacity from about 1 January 2020 and that such loss or diminution has resulted in economic loss.
I find that, as a result of the injuries and restrictions I have found were caused by the motor accident, BSA has no residual earning capacity.
The Fair Work Commission website provides information in respect of the minimum wage under the Cleaning Services Award - MA000022 (the Award). I prefer it to the “talent.com” website’s information of the average cleaner salary in Australia.[69]
[69] BSA’s documents at pages 818-824.
The minimum full-time weekly earnings for a level 1 cleaner under the Award from 1 January 2020 to 30 June 2020 was $791.10 gross per week. Using the Australian Taxation Office tax calculator, the net weekly figure comes to $696.55.
The minimum full-time weekly earnings for a level 1 cleaner under the Award from 1 July 2020 to 30 June 2021 was $804.90 gross per week. Using the Australian Taxation Office tax calculator, the net weekly figure comes to $718.47.
The minimum full-time weekly earnings for a level 1 cleaner under the Award from 1 July 2021 to 30 June 2022 was $825 gross per week. Using the Australian Taxation Office tax calculator, the net weekly figure comes to $734.25.
The minimum full-time weekly earnings for a level 1 cleaner under the Award from 1 July 2022 to date is $865 gross per week. Using the Australian Taxation Office tax calculator, the net weekly figure comes to $767.15.
BSA’s claim for past economic loss is conservatively advanced for $628.66 net per week, which is less than the net weekly figures I have referred to above for the role of a full-time cleaner. It is also less than most levels of the current full-time Horticultural Award – MA000028[70] and less than all levels of the current full-time Hospitality Industry (General ) Award – MA 000009.[71] It is less than most levels of the current full-time Woolworth Supermarkets Agreement 2018.[72]
[70] BSA’s documents at pages 812-813.
[71] BSA’s documents at pages 825-826.
[72] BSA’s documents at pages 827-828.
Accordingly, I allow the amount as claimed by BSA ($628.66 net per week) by way of past loss of earnings and calculate her loss as follows:
1 January 2020 to 21 February 2023
164 weeks at $628.66 net per week: $103,100.24
I calculate BSA’s entitlement to past superannuation entitlements as follows:
1 January 2020 to 21 February 2023
$103,100.24 x 11%: $11,341.03
Accordingly, I assess BSA’s entitlement to past loss of earnings, inclusive of superannuation, at $114,441.27, rounded down to $114,441.

Damages for future loss of earnings or loss of earning capacity

BSA’s claim for past economic loss is conservatively advanced for $679.26 net per week, which is less than the net weekly figures I have referred to above for the role of a full-time cleaner. It is also less than most levels of the current full-time Horticultural Award – MA000028[73] and less than all levels of the current full-time Hospitality Industry (General ) Award – MA 000009.[74] It is less than most levels of the current full-time Woolworth Supermarkets Agreement 2018.[75]
[73] BSA’s documents at pages 812-813.
[74] BSA’s documents at pages 825-826.
[75] BSA’s documents at pages 827-828.
I find that such loss will continue until her retirement at the age of 67, that is, another 17 years.
Accordingly, I allow the amount as claimed by BSA ($679.26 net per week) by way of future loss of earnings and calculate her loss as follows:
$679.26 net per week x 602.8 (Multiplier for 17 years):     $409,457.93
less 15% for vicissitudes:  $ 61,418.69
total future loss of earnings:  $348,039.24.

I calculate BSA’s loss of future superannuation entitlements as follows:
$348,039.24 future net loss of earnings x 14.45% (17 years): $50,291.67.

Accordingly, I assess BSA’s entitlement to future loss of earnings, inclusive of superannuation, at $398,330.91, rounded down to $398,330.

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:  $380,000
Economic losses
·Past loss of earnings (inclusive of superannuation):          $114,441
·Future loss of earnings (inclusive of superannuation):      $398,330
Total of economic losses and non-economic loss:  $892,771
Total damages assessed:  $892,771

COSTS AND DISBURSEMENTS

On 3 November 2022, BSA submitted a schedule of legal costs and disbursements on the Commission’s portal identified as “AD7”.
QBE made written submissions on BSA’s schedule of legal costs and disbursements dated 18 November 2022.
I accept QBE’s submissions that the medico-legal reports of Dr Hopcroft dated 29 July 2020 and 18 August 2022 and the medico-legal reports of Dr Dinnen dated 14 March 2022 and 12 October 2022 are restricted to the maximum amount prescribed under Schedule 2 Item 7 of the Motor Accidents Injuries Regulation 2017 (the Regulation).
I agree with QBE’s submission that, without any explanation behind the reason for the making of three NSW Police Force Government Information (Public Access) Act 2009 (GIPA Act) applications, BSA is only entitled to the cost of one such application.
BSA claimed 10 hours for the cost of conferences directly related to the assessment of the claim for damages. QBE allowed only four hours for such conferences. I find that the 10 hours claimed for the conferences is reasonable in circumstances where there were a number of witnesses in BSA’s case, some of whom required the assistance of an interpreter.
I assess BSA’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Regulation as set out in the attached sheet.

CONCLUSION

Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $892,771.
The amount of BSA’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $74,275.99 inclusive of GST.

LEGISLATION

In making my decision I have considered the following legislation:
(a)   Personal Injury Commission Act 2020;
(b) Personal Injury Commission Rules 2021;
(c)   the MAI Act;
(d)   the Regulation;

[2023] NSWPIC 84

22 February 2023