BWU v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BWU v AAI Limited t/as GIO [2024] NSWPIC 297
CLAIMANT:	BWU
INSURER:	AAI Limited trading as GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	5 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Injuries Act 2017; assessment of damages; no issue as to liability; claim for past and future economic loss; no claim for non-economic loss, however, noted that no Commission medical certificate as to the primary physical injury; claimant was aged 19 at the time of the accident; claimant suffering migraines and a psychological injury caused by the accident which has significantly impacted her earning capacity in the past and into the future; complex medical history; future economic loss claim made on basis of claimant’s stated intention to become a psychologist; Held –the claimant is unlikely to reach such goal but for the accident; future economic loss awarded on a buffer basis; total damages awarded $472,416 plus costs.
DETERMINATIONS MADE:	In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. The amount of damages for claim is $472,416.00 2. The amount of the claimant’s costs in the matter is $47,729.17 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

On 22 April 2019 BWU (the claimant) suffered injury arising from a motor accident. The claimant was the driver of a Hyundai Getz along the Pacific Highway. A Holden Colorado travelling in the opposite direction crossed to the incorrect side of the road causing a head on collision with the claimant’s vehicle.
The accident can clearly be described as a serious one. The NSW Police Report noting that the claimant’s vehicle was impacted with such force it was pushed backwards approximately 16 metres, rotating in a clockwise direction before coming to a stop on the incorrect side of the road.
The claimant lodged a claim for statutory benefits under the Motor Accident Injuries Act2017 (MAI Act) with AAI Limited trading as GIO (the insurer), the compulsory third party insurer of the Holden Colorado, on or about 15 July 2019. A claim for damages was subsequently lodged at some point thereafter.
Whilst the relevant liability notice is not before me, I am advised that liability has been admitted by the insurer. The matter left for determination is the amount of damages the claimant is entitled to under the MAI Act.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) to determine the claim for damages. The matter has been allocated to me for determination as a Member of the Commission’s Motor Accident Division.
An application to the Commission had also previously been lodged to assess the claimant’s level of whole person impairment for injuries caused by the motor accident. Medical Assessor Hong and Medical Assessor Dixon and Medical Assessor O’Neil have assessed the claimant. The claimant has been certified as not reaching the non-economic threshold.
The claim for damages is therefore limited to a claim for past and future economic loss.
The matter was the subject of an assessment conference conducted via Microsoft Teams videolink on 1 May 2024. Both the claimant and her mother gave evidence at the conference.
At the conclusion of the assessment conference, directions were made in respect of the provision of a schedule of costs and a response from the insurer.

DOCUMENTATION

As directed, before the date of the assessment conference the parties each lodged a bundle of all documents relied upon. A further document was lodged on behalf of the claimant that sets out certain parts of the bundle to be disregarded as irrelevant.
Further documentation has been lodged by the parties as follows:
(a)    extract of clinical records of Erina Medical Practice;
(b)    Mental Health Treatment Plan dated 10 January 2019;
(c)    referral from Dr Munoz dated 10 December 2019;
(d)    Dr Crimmins report dated 28 October 2020, and
(e)    Helen Dawson (Procare) report dated 16 October 2019.
I have carefully considered all the documentation lodged by the parties.

STATEMENTS

The claimant has provided three statements for the purposes of her application, dated 18 August 2021, 30 January 2023 and 25 March 2024.
The claimant is a 24-year-old female born in 1999. At the time of the accident she was 19 years of age.
The claimant states that prior to the accident she had never suffered from any other injuries or illness relevant to the claim. She advises that she has been diagnosed as being on the autism spectrum.
I have considered the entire content of the statements but note the following significant themes:
(a)    the claimant’s chief complaints centre around her right lower limb, which has not improved and the claimant in fact states in her latest statement that the pain in the right knee has become worse. The claimant has been advised to walk on soft surfaces.
(b)    The other chief complaint, and perhaps the most significant, relates to the claimant’s migraines, which by their description appear to be chronic in nature. The claimant states that the migraines have adversely affected her efforts to study and apply herself to any pursuits including working and even attending medico legal appointments. It is noted that more recently working in a café became untenable due to her inability to retain information.
(c)    In addition, in respect of psychological complaints the claimant notes that she has severe social anxiety and also has anxiety around driving, particularly as a passenger.
(d)    The claimant states that in terms of her future plans had involved her obtaining her Higher School Certificate (HSC) and then pursue study in psychology with a view to become a psychologist focussed on providing training to teachers and staff in schools. The claimant notes that she was the victim of bullying at school, hence her leaving school at the end of year 10.
The claimant left Central Coast Adventist School after completing the Year 10 certificate. She states that she left as a result of bullying. She then commenced HSC study at the University of Newcastle, however, she had to place her studies on hold due to deteriorating health by way of severe depression and symptoms of endometriosis. She explains that in June 2018 she was given a mental health plan for depression, anxiety, post-traumatic stress disorder and previous trauma. She planned on resuming studies when her health was under control.
At some point, she enrolled at TAFE to complete her HSC studies and states that she was doing well until the motor accident.
After leaving school the claimant commenced work at Gnostic Mana Café for around four or five months and then started working for Phillips Pharmacy for at least six months on a traineeship.
The claimant also states that one week prior to the accident she was offered a casual job working in retain at Mayne Carpets. This job was offered to her when she was at the store as a customer. She states that it was agreed that she would work approximately 20 hours per week or as TAFE permitted.
She states that the man that offered her the job, phone whilst she was in hospital and again in about a month, but because of her injuries she was not able to work.
After the accident, in 2021 (earlier described as around November 2020) the claimant did a six week work trail at a café in Erina Fair, however she had “great difficulty” due to right leg pain. She also had difficulty retaining information and suffered anxiety, with challenges interacting with customers.
The claimant did not undertake any work trials in 2022, and she explained this was due to relying on ProCare to help find her employment. She then pursued a massage course in around July 2022, with her mother, however ceased studies in August 2023. She explains she struggled due to migraines and right knee pain.
At some point in around 2023 the claimant also did some work in a fish and chips shop called Darrons Seafood working 8-16 hours a week. She states she left the employment due to difficulties undertaking the work and the massage course at TAFE.
In June 2023 the claimant did a shift as a massage therapist. She worked a three hour shift once a week but left the employment after two months due to a lack of customers and also ongoing pain.
The claimant felt relief stopping her massage studies but also explains that she feels like a complete failure.
The claimant responds to a vocational report of John Raue served by the insurer and rejects the suggestion that she could work in various jobs recommended. She explains that she cannot lift and move things due to pain and also cannot look at computers for extended periods due to migraines.
In January 2024 the claimant commenced casual work at a retail clothing store, Decjuba and works three hours a week, however has recently dropped down to three hours a week every three weeks. The claimant explains that she “loves” this job, and although boring at times she likes her colleagues and customers. She states that she manages easily, however, there is pain in the right leg if there are longer hours worked.
The claimant states: “I am determined to get back into the workforce although my injuries restrict me to working minimal hours. Some days I just do not feel like I am able to work at all.”

Statement of the claimant’s mother, BZT dated 22 March 2024

The claimant’s mother descries the claimant as not being the same since the accident in various aspects of life. She describes the claimant as previously being very active, enjoying gym, hikes, pilates and the like.
In addition, the claimant is described as socially withdrawn, even with family and the constant pain as the claimant’s mood adversely affected on a daily basis.
The claimant’s memory is described as “terrible” by her mother, with the claimant taking longer to process information and is very vague in conversations.
In respect of studying, the claimant’s mother describes the claimant as unable to look at screens and so she would assist in theory aspects of the course by reading the questions and typing the answers for the claimant.
BZT states: “I believe that BWU would have had the drive and discipline to complete her Bachelor of Psychology however her poor memory and constant migraines have stopped this dream of hers.”
It is also explained that the claimant’s parents are suffering financial hardship due to supporting the claimant since the accident and the claimant’s father has had to postpone his retirement.

MEDICAL EVIDENCE

From the scene of the accident the claimant was taken via ambulance to John Hunter Hospital. In the discharge referral from the hospital it is stated the claimant was involved in a high speed accident, with possible loss of consciousness. The claimant is noted to have complained of headache and was teary. A large wound over the right knee was noted, with the patella bone visible. A right patella compound fracture was diagnosed. She was given painkilling medication and a history of Asperger’s Syndrome was noted.
Surgery was undertaken the day after the accident by way of open reduction and internal fixation of the patella fracture. It is reported that there was bone loss to the right patella and right medial and lateral aspects of the right anterior femoral condyles. The claimant was thereafter transferred to Gosford Hospital.
A report of Dr MacKenzie dated 23 April 2019, noted that in the operating theatre that as well as a compound patella fracture, the claimant had lacerated her quadriceps tendon and injured some cartilage on the femoral condule as well as the back of the patella. He described the injury as significant.
By 16 July 2019, Dr MacKenzie reported that the claimant was doing really well and was “walking completely normally” and the only time there was difficulty was walking down stairs. It was also stated that the claimant’s range of motion was improving with physiotherapy. He stated he did not need to see the claimant again unless she had ongoing problems moving forward.
The claimant’s general practitioner (GP) records document memory difficulties within a short period from the accident. In this regard, on 13 June 2019 the following notes are documented:
“…still difficulties with memory. TAFE has requested a Medical Certificate again. Very poor time in terms of extension of assignment. Difficulties consolidating and retaining memories. Requests more extension in assignments. TAFE is very strict and lacks understanding. Struggling to cope with her current limitations.”
Also noted are issues with hearing from the right ear and a referral to an audiologist was recommended along with a referral to a psychologist.
Ongoing issues are noted in the GP file with TAFE and brain function. On 5 September 2019 the GP records: “has decided to opt out of TAFE as unable to cope with the mental loading. Did not receive much support there. Brain function is still affected. Sleeping has improved. Coping better but still quite emotional”. It is also said the claimant could not engage in work or study with mental condition “not ideal”.
A referral to a neuropsychologist was suggested in December 2019, however, it appears the claimant did not attend.
The claimant was referred to neurologist, Dr Crimmins. He reported the claimant having ongoing headaches which are “incapacitating”. He states: “the MRI scan of her brain was an excellent result.”
Dr Crimmins had the claimant undergo Botox treatment for her headaches and in a report dated 4 June 2021 he states the claimant had had her second injection with a very effective result. However, in a report dated 20 July 2021 it was said that the claimant had ongoing headaches and the Botox had not been successful in reducing severity or frequency. She was prescribed Lamictal as an alternative.
The claimant was also referred for psychological treatment with Ms Alexandra Wilson. In an email of 16 June 2018 Ms Wilson reports that the claimant had strong motivation to improve her symptoms.
The claimant also received counselling through Ahead Counselling Psychology in October 2020. A diagnosis of post-traumatic stress disorder was made together with depression and anxiety.
A GP Mental Health Treatment Plan of Terrigal Medical Centre dated 22 September 2011 notes a traumatic past, with the claimant being adopted as a newborn from an apparent abusive family. A report from R.E.A.D clinic dated 25 March 2010 includes a diagnosis of Asperger’s Disorder.
The Terrigal Medical Centre notes document a significant history of pre-accident health related issues. In particular, there are ongoing notes of tiredness. In addition, there are notes that pre-date the accident of the claimant experiencing memory issues. On 20 January 2017 there is a note of tiredness, nausea and headaches.
The year prior to the accident there are documented psychological issues. On 7 June 2018 a mental health treatment plan was created. A diagnosis of depression and post-traumatic stress disorder included. Symptoms of anxiety and difficulty sleeping and avoidance behaviour was noted. In addition, the claimant was said to have thought disorganisation and could not think clearly, and had difficulty with short term memory. The claimant is noted to have difficulty with short term memory and was lacking in motivation and energy.
On 10 January 2019 (a little over two months prior to the accident) the claimant was referred to Renee Butler for management of her depression and anxiety. The treatment plan noted the claimant’s memory to be normal at that time but she had difficulty concentrating. She also is recorded as suffering from mood lability, sleep issues, difficulty problem solving, depression, anxiety, insomnia and autism.
Mindful Recovery Services records document severe depression, post-traumatic stress disorder, social isolation, and other psychological symptoms including previous self harm and previous suicide attempt in 2015.
Also before me is a report of Alexandra Wilson, psychologist dated 16 June 2018 that notes the psychological history.
The clinical records also indicate that in June 2018 the claimant had been working in a café but her manager would yell at her. Thereafter working in a pharmacy included difficulties such as being picked on and being accused of not working or treating customers inappropriately.
The file of Bateau Bay Medical Centre includes an entry of 12 January 2018 that documents symptoms such as eyesight decline, hearing and smell issues, brain fog, and fatigue.
The claimant’s GP referred her to the Hummingbird Centre in January 2019 for treatment of depression and anxiety. Treatment commenced on 21 March 2019. The background questionnaire filled out by the claimant noted a history of relationship trauma/abuse and depression/anxiety. She noted her goals to be “more peace, clear thinking, to feel safe, tips & techniques”.
She ticked the following boxes in answer to illnesses or conditions that she has or currently suffer from:
·        anxiety;
·        depression;
·        difficulty concentrating;
·        dizziness/lightheadedness;
·        extreme tiredness/weakness;
·        frequent or severe headaches;
·        recent hospitalisation (18/7/18);
·        insomnia;
·        irritable bowel syndrome;
·        memory problems;
·        panic attacks;
·        paralysis/motor retardation;
·        sleep problems;
·        severe trauma, and
·        thyroid function
The claimant filled out a “DASS” questionnaire that indicates a rating for various symptoms. I have carefully considered the content. The responses are too long to list here, however, it is noteworthy that the claimant’s most notable symptoms were issues with winding down, agitation, intolerance, panic and lack of enthusiasm.
Ms Renee Butler, psychologist from the Hummingbird Centre, reported to the claimant’s GP on 9 April 2019. The report notes the claimant giving a history of trauma as an infant being removed from her birth parents. She also noted bullying at school, sexual assault at the age of 15 and being asked to leave her church group as a result of the sexual assault. The claimant also reported being objectified by both men and women.
Ms Butler reported the claimant as presenting with symptoms of post-traumatic stress disorder. Symptoms are noted as including anxiety, sleep disturbance, flashbacks, feel unsafe and hypervigilance.
The material from Hummingbird Centre is somewhat significant as it is dated relatively close in time before the subject motor accident.

Personal Injury Commission Medical Certificates and Reasons

Medical Assessor Hong – 4 March 2022 – psychological injury

The Medical Assessor diagnosed the claimant as suffering from a major depressive disorder with trauma features as a result of the accident. He assessed a 6% whole person impairment.
The claimant reported that her main problem related to headaches and memory issues. She noted that she had never taken psychotropic medication and when asked about a prescription for Lexapro she denied ever taking it.
When making an assessment of whole person impairment, Medical Assessor Hong noted that the claimant may have suffered a brain injury which is assessable, but was not within his expertise to assess. He found that the claimant was capable of 20 hours a week of low stress employment.

Medical Assessor Dixon dated 6 June 2022 – physical

The claimant reported recurrent occipito-temporal headaches impacting her ability to concentrate. She reported pain and stiffness in neck and bilateral shoulder symptoms. Thoracic spine pain and stiffness was also reported. The claimant reported ongoing difficulties with her right knee including pain and tenderness and inability to kneel due to her scar.
In addition, the claimant reported painful clicking in both temporomandibular joint regions and difficulties eating solids such as apples.
The Medical Assessor diagnosed the claimant as suffering a significant whiplash injury from a “severe front on collision” impacting the neck and residual temporomandibular dysfunction. Also diagnosed was a thoracic back strain injury. These diagnoses are in addition to the healed compound fracture of the right patella with residual retropatellar crepitus due to direct impact. He found the left leg injury by way of left buttock contusion had resolved.

The Medical Assessor found the following injuries were caused by the motor accident but were not listed by the parties:
·        bilateral temporomandibular joint dysfunction;
·        occipital neuralgia with occipito temporal headaches, and
·        right knee – traumatic injury/patella fracture.
Whilst the Medical Assessor identified these additional injuries (which includes the primary injury to the right knee) an assessment of whole person impairment is not given in respect of same.
Of the referred injuries the Medical Assessor found a 4% whole person impairment (2% scarring, and left knee 2%).

Medical Assessor O’Neill dated 18 July 2022

The Medical Assessor assessed the traumatic brain injury. He found a 0% whole person impairment.
The Medical Assessor noted the ambulance report documenting a Glasgow Coma Score (GCS) of 15, however on route to hospital she displayed repetitive questioning and amnesia. The GCS was then recorded at 14 on three separate occasions.
The CT Brain Scan of 27 April 2019 was noted as being normal, and after consultation with Neurologist, Dr Crimmins, an MRI was arranged of the brain which was also reported as normal.
The Medical Assessor concludes that from the documentation it is unclear whether the claimant sustained a head injury in the motor accident. However, assuming a head injury did occur, “…it is not the type of head injury which would give rise to any permanent impairment of cognitive function.” He went on to state that he had “no doubt that the symptoms have a largely psychosomatic basis.”

Medical Assessor Fitzsimons dated 2 January 2024

The Medical Assessor found a 0% whole person impairment for injuries:
· possible head injury, with post-traumatic headaches and dizziness, without structural brain injury, and
· cervical spine – soft tissue injury, without cord injury.
The Medical Assessor found no gross inconsistency, although logic of explanations was sometimes difficult to follow. She found a possible head injury, with at most minor concussion.
Medical Assessor Fitzsimmons notes that there was no concern of brain injury at the John Hunter Hospital with the registrar advising against a CT scan noting that the claimant was alert and hourly observations would continue. She states, in line with Medical Assessor O’Neill, that if a head injury occurred at all it would not have had long term cognitive consequences.
The Medical Assessor found a possible head injury in addition to a cervical soft tissue injury with possible referred headaches but without cervical cord injury. She considered the claimant’s headaches as being possibly multifactorial due to whiplash and/or head trauma and/or psychologically determined.

Comment

I do not have copies of the various applications and replies that have been lodged with the Medical Services division of the Commission. Nor do I have copies of the referrals to the various Medical Assessors. I assume, however, that I have been provided with copies of all certificates and reasons by the parties.
It appears that the injuries listed by Medical Assessor Dixon as being caused by the accident but not referred by the parties, have not been assessed for whole person impairment by a Medical Assessor of the Commission. This includes the most obvious injury caused by the accident, being to the right lower limb by way of a compound fracture to the patella. In addition, I have not seen an assessment certified for the bilateral temporomandibular joint dysfunction identified by Assessor Dixon.
I do not know the reasons for this, but note the claimant has very experienced legal representation. It could have originated from an error in the whole person impairment table provided by Dr Patrick where he refers (seemingly mistakenly) to the left knee but not the right knee.
It is noted that Dr Patrick found a 3% whole person impairment in respect of the knee (although referred to in his assessment table as left knee). When such impairment is added to Medical Assessor Dixon’s whole person impairment of 4%, the non-economic loss threshold remains unreached.
Although Professor Cameron, reporting to the insurer, found an 8% whole person impairment which appears to be limited to the right knee.

Claimant’s medico-legal reports

The claimant relies on a report of Dr Patrick dated 21 July 2023, Dr Chow dated 14 March 2023 and reports of Dr Teychenne dated 24 February 2023 and 11 June 2023.
Dr Patrick found a 22% whole person impairment, which includes a 9% impairment for “nervous system”. He found a 3% impairment for the lower extremity (which he refers to as left, however, presumably meant right). He found a 2% whole person impairment in respect of scarring together with 5% each for the cervical spine and thoracic spine.
Dr Chow diagnosed the claimant as suffering a major depressive disorder. He noted the claimant has a past history of depression and therefore considered the motor accident had caused an exacerbation of same.
He considered the claimant could work partial hours in a low stress role and her work capacity would be affected in the short to medium term as well as some ongoing restrictions in the longer term. He assessed a whole person impairment of 17%.
Dr Teychenne, neurologist, is of the opinion the claimant has sustained a traumatic brain injury with an incomplete cervical cord injury which would be consistent with the cervicogenic headaches and upper cervical spine weakness. He assessed the claimant as suffering a 29% whole person impairment (15% + 7% + 11% nervous system).

Dr Nicola Gates, neuropsychologist

An initial report is dated 19 February 2020. A number of reports follow. I understand that the opinion of Dr Gates was obtained on a “joint” basis.
Dr Gates took a history that the claimant returned to TAFE after the accident in May (having commenced in February) however, left in September due to her symptoms.
Dr Gates reports that there were no inconsistencies or anomalies in the claimant’s test performances.
Testing also failed to confirm diagnosis of Autism Spectrum Disorder on current symptoms. Dr Gates notes the pre-injury learning difficulties with multiple issues that may have impacted early education include possible foetal alcohol syndrome at birth, chronic disease and social anxiety secondary to bullying.
Dr Gates concludes that on the evidence the claimant may have sustained a mild traumatic brain injury/concussion as indicated with loss of smell immediately following the accident.
At the time, Dr Gates was of the opinion it was too early in the recovery process to determine a permanent psychological diagnosis.
On the issue of assist return to work, Dr Gates reports:
“BWU presents as capable of returning to employment consistent with her past employment experience. She will require a graded return to work with limited hours initially as she builds up her fatigue tolerance and work fitness and to monitor the impact of headaches on her sustained capacity to work throughout the entire workday.”
Ms Gates notes the claimant has some difficulties with information processing speed which is closely associated with attention.
In a report dated 5 June 2022, after review of additional material, Dr Gates opines that on the objective evidence the claimant suffered a concussion. She states that the variability of cognitive function as documented by the GP indicates non-organic cognitive issues.
Dr Gates states that her opinion remains unchanged in that the claimant appears to have sustained a concussion or mild traumatic brain injury and at the time of her assessment there was no clear diagnosis of any post-accident neurocognitive disorder.

Insurer’s medico-legal reports

Professor Cameron reported to the insure on 15 November 2021. On testing Professor Cameron found limited ability to concentrate.
He diagnosed the claimant as suffering an open fracture of the right patella together with soft tissue injuries and describes the claimant as having recovered reasonably well. He notes the chronic headaches and some physical limitations. He opines this is likely related to a whiplash disorder.
He provides a whole person impairment assessment of 8%. It is not entirely clear how this is arrived at but appears to be related to the right knee only. He refers to significant muscle atrophy above and below the knee which is “moderate” attracting a 4% whole person impairment in accordance with the Motor Accident Guidelines. He then states: “4% WPI is combined with 4% to give 8% WPI.”
Professor Cameron is of the opinion that the claimant would have been unfit for work for approximately three months after the accident. He reports: “BWU is able to work in a retail setting. However, given her current pain related symptoms it would be difficult to establish that employment.”
Dr Vickory, psychiatrist, in a report dated 24 August 2022 details a history of continual headaches of a daily nature. At the time, she was only taking magnesium as treatment.
Dr Vickory opines that no psychiatric diagnosis directly due to the accident has occurred. He also states there is no required treatment in respect of the accident.

Vocational Capacity Centre report dated 28 November 2022

A functional capacity evaluation summary prepared by Gillian Stewart, physiotherapist, concludes that the claimant has an ongoing dysfunction in the right knee as a result of the compound fracture. No other significant dysfunction was identified.
Ms Stewart opines that in an appropriate occupation, the claimant is physically capable of working full time, although it was noted that such conclusion should be correlated with the opinion of appropriate psychologists/psychiatrists.
In the vocational assessment report, John Raue, vocational psychologist, concludes that some of the vocational options the claimant could consider include:
·        sales assistant;
·        receptionist;
·        inquiry clerk;
·        call centre operator, and
·        café worker.
In addition, it is opined that if the claimant is prepared to undertake further study she could consider options as a remedial masseur, marketing assistant or human resources officer.
Mr Raue states:
“…based on review of her school records, neuropsychological assessment, and testing in this current assessment, it seems that BWU has cognitive skills close to the mid-range of the population, which should allow her to study at Certificate to Diploma levels. Her history does not support her claim that she would have been able to study to be a Psychologist if not for the accident.”
In reaching this conclusions Mr Raue notes the claimant’s school results demonstrate a weakness in mathematics which are well below the levels expected of someone who would manage a degree such as Psychology. In this regard, it is noted that such degree requires extensive study of statistics.

EVIDENCE AT THE ASSESSMENT CONFERENCE

The claimant commenced her evidence confirming that she was doing well at TAFE before the accident, that she was enjoying it and staying on top of everything. She explained that after the accident she had problems with TAFE and needed extensions, and because of migraines she found it difficult. She denied experiencing headaches or migraines before the accident but they are now constant with a minimum of two times a week.
Mr Nesbeth questioned the claimant on her evidence of not suffering from headaches. In this regard, Mr Nesbeth took the claimant to the records of Triple H Osteo Care wherein there was a history given on 27 March 2019 of neck and upper back pain with associated headaches “everyday”. The notes describe this as “frontal headaches” although that particular detail was not put to the claimant.
The claimant stated that she remembered having her tonsils out and having issues with endometriosis which disrupted her university course, but she did not recall having neck and back issues before the accident. The claimant denied previous issues with headaches.
It was also put to the claimant that she had issues with tiredness and fatigue prior to the accident. The claimant answered that she did which was due to her endometriosis, which is now not a problem.
Similarly, the claimant was questioned about pre-accident complaints of brain fog, insomnia and fatigue and the claimant generally gave answers that amounted to: “I can’t remember”.
In respect of past psychological issues the claimant confirmed that she had been diagnosed with anxiety and depression prior to the accident, however, could not specifically recall her treatment with the Hummingbird Centre. However, she confirmed, when shown the document, that it had been her that had filled out the intake questionnaire.
The claimant gave evidence that she was “sure” that her issues before the accident were different to the issues that she deals with post subject motor accident. In this regard, she stated that she went from doing fine and exceeding at TAFE, and then not being able to complete her studies after the motor accident. Whilst earlier denying pre accident memory issues, the claimant went on to state that any such issues were not getting in the way of her work or study.
It was put to the claimant that she was behind in her TAFE studies prior to the accident, and she denied this being the case. The claimant was then directed to her TAFE records. Specifically, an email of Lorinda Lombardelli, Head Teacher Central Coast, dated 4 April 2019 wherein it was explained that the claimant’s mother had phoned saying she was unable to attend the statistics classroom as it caused her “anxiety, stress and panic due to the smaller computer class size.” The claimant was noted to have missed four sessions and was required to catch up on missed assessments/projects.
The claimant denied having issues, however, and when the email was specifically mentioned to the claimant she noted that she had made a complaint about the relevant teacher and she felt that she had been targeted. She stated that she had been warned about the teacher by another teacher and was told not to be left in a room with him. She stated that the teacher had tried to get her in a room alone. She stated that it was not the actual class size that was the issue but the teacher himself and that if she was behind it was because of her issues with that particular teacher.
The claimant was questioned about her past work history, and specifically difficulties she had at work prior to the accident. It was noted that there was report that the claimant’s manager had yelled at her face. The claimant stated that she could not remember this.
In respect of the claimant’s prior employment at a pharmacy, the claimant noted that she obtained the job by walking in and handing over her resume. She explained that she was working five days a week, even though she was employed on a part time basis. The claimant conceded that there were interpersonal issues with two women that worked at the pharmacy. When asked why she left, the claimant stated that it was not a passion of hers.
In respect of her work at a café after the motor accident, the claimant noted that people had complained about her memory issues, noting that she was unable to retain information. She explained that she was given a nickname of “Dory” from the Disney movie, meaning that she could not remember things.
The claimant was also questioned about her work at a fish and chip shop, and was asked whether she worked up to 35 hours a week. The claimant denied this.
In the context of the claimant’s documented past issues with studying, it was put to her that it is unlikely that she would have been able to complete a psychology degree in any event. The claimant noted that it would be stressful but she was passionate about it.
In terms of her current situation, the claimant noted that she was able to manage her current work given that it is three hours. She also noted that she was doing office work experience for her brother’s electrician business. She explained that she is there a few times a week and when her headaches are bad the receptionist tells her to go in the dark room and shred paper. The claimant stated that she cannot do computer work for any length of time as exacerbates her migraines.

Oral evidence of BZT – the claimant’s mother

I considered the claimant’s mother to present as an honest and caring person, who made a clear effort to give truthful and clear evidence.
It was confirmed that the claimant suffered from depression and anxiety prior to the accident. It was also confirmed that prior to the accident the claimant had spoken about her goal to be a psychologist following her experience being bullied at school.
The claimant’s mother described the claimant, prior to the accident, as being happy, making friends and doing well. However, after the accident there was a change in the claimant with memory issues and ongoing headaches and migraines. BZT described the claimant as going “in to herself”, isolate herself into a dark room and would not socialise. The claimant was also described as being on the “angry side.”
The claimant’s current condition was described as improved, with memory improved to a certain extent. The claimant’s mother said she was “very proud” of the claimant.
Under questioning by the insurer’s counsel, the claimant’s mother confirmed the claimant had previously suffered from depression and fatigue, however, she explained that in the months leading up to the accident, when the claimant began TAFE, her whole demeanour changed. She stated that she saw the claimant attending to her work. In addition, in respect of memory issues it was conceded that such issues were present prior to the accident, but were worse after.
The claimant’s mother was questioned about the claimant’s difficulties with statistics class at TAFE. She explained that when she sent the email she was trying to be diplomatic. At this point the claimant’s mother became uncomfortable noting that the particular teacher had given the claimant extreme anxiety and was triggering her post-traumatic stress disorder. It was stated that a number of stories were heard about him with people saying various things. She explained that the claimant would get extremely worked up going to his classes.

DAMAGES

Non-economic loss

The claimant does not make a claim for non-economic loss, noting the various certificates issued by Medical Services do not assess the claimant as reaching the non-economic loss threshold. It is noted, however, that the claimant’s most significant physical injury (right knee) caused by the accident has not been the subject of an assessment of whole person impairment by Medical Services.

Economic loss

The claimant’s written submissions suggest that but for the accident the claimant would have taken up the role with Mayne Carpets and completed further studies to obtain her HSC, and then would have gone on to study psychology.
It is suggested that the claimant would have earned at least $800 net per week. The claim totals $227,328 less an amount of $50,000 it is said that she has earned. Therefore, the claim totals $177,328.
The claimant’s written submissions in respect of future economic loss are based on the assumption that but for the accident the claimant would have successfully become a psychologist. It is stated that the claimant had the potential to earn up to $153,989, or $2,961 per week as a psychologist. However, as a compromise the claim is made on the basis of the claimant earning $1,500 net per week but for the accident. In addition, an increased reduction of 40% for vicissitudes is conceded.
On the above basis, the claim is calculated to total $971,037 inclusive of superannuation.
In the alternative, a substantial buffer is claimed.
The insurer submits in their written submissions dated 22 April 2019 that “…there is insufficient evidence to support the claimant’s claim for past economic loss.” However, further on in the submissions the insurer conceded the claimant has sustained some loss, however, she returned to her pre-injury capacity as at 12 November 2020.[1]
[1] Certificate of Capacity dated 12 November 2020 – R25 of insurer’s bundle p 233.

The insurer submits an allowance of $50,000 should be made, on the following basis:
(a)    $420.00 x 83 weeks = $34,860
(b)    plus 11% superannuation = $38,694.60
(c)    buffer of $10,000 inclusive of superannuation to account for any intermittent accident related loss.
In terms of future economic loss the insurer makes no allowance in their written submissions. The following is submitted:
“Noting the claimant’s pre-accident employment capacity was otherwise limited by her learning difficulties, diagnosis of autism spectrum disorder, low level of education and prior issues of mental ill health, the insurer does not believe the claimant’s future earning capacity was extensive in any event.
The insurer submits any loss extending beyond the above quantification has no correlation to the subject accident, with the same accounting of the concomitant issues affecting the claimant’s earning capacity.”
I do not accept the insurer’s suggestion that the claimant has reached a point in her recovery that she has returned to her pre-injury capacity.
After considering all of the documentary evidence, and having observed the claimant give evidence, I accept her evidence that the motor accident has, and continues to have, a significant impact on the claimant’s day to day life and ability to engage in employment and study.
I consider the claimant to be an honest witness, albeit she did have the tendency to play down her pre-accident history. Which is a significant history. The claimant has suffered a more than usual level of trauma for her young life and I accept that her past difficulties would have a likely, but for the accident, adversely affected the claimant’s earning capacity for the foreseeable future.
Whilst the claimant did play down her prior issues, I do not consider that such tendency equates to a reasonable finding that her accident related issues are not significant. The accident was a serious and high impact collision. I accept that it has left her with ongoing permanent physical issues, mainly attributable to pain and other symptoms in the right knee.
However, in terms of day to day functioning and working on a career path, I consider the evidence that establishes the claimant suffering from chronic migraines to be the main impediment to realising her full earning potential. The evidence does not make it possible to definitively say what is causing the migraines, whether it be derived from her psychological symptoms of anxiety and/or depression, or whether they present as a result of a physical injury such as a whiplash disorder. Either way, I accept that on the balance of probabilities that the claimant is suffering from chronic migraines that significantly impact on her ability to pursue studies and maintain employment. I also accept that such migraine condition is causally related to the motor accident. Whilst it is documented that the claimant suffered from headaches before the accident, they appear to be a much more severe impact to the claimant since the accident.
It is now in excess of five years since the accident, and it is clear that the migraine condition is chronic in nature. However, it does appear that the claimant has more recently not pursued medical treatment in an attempt to alleviate the symptoms. Whilst Botox did not assist in the amelioration of the migraines, there has been mention of injections such as Ajovy.
I do not accept that the claimant has suffered a traumatic brain injury that has manifested in permanent disability. The medical evidence does not support a contrary finding. The radiological examinations of the brain are reported as normal. The opinion of Medical Assessor O’Neill succinctly summarises the likely position being that “…it is not the type of head injury which would give rise to any permanent impairment of cognitive function.”
I also accept that the motor vehicle accident has caused psychological injury to the claimant that adversely affects her earning potential and ability to engage in study and employment. I note the opinion of Dr Vickory, but do not accept his conclusion that the claimant is not suffering from a psychological injury due to the accident. Such opinion is incongruent to the balance of the documentary evidence and medical opinion.
I accept the opinion of Medical Assessor Hong, who found a Major Depressive Disorder, which corresponds with the findings of Dr Chow. I also accept that such injury presents as an exacerbation of pre-existing psychological disorder. I note, and accept the findings of Medical Assessor Hong, that the claimant would be capable of 20 hours of work only in low stress employment. Such opinion was given in respect of his assessment of whole person impairment. However, it is apparent that Medical Assessor Hong may not have been sufficiently privy to the extent of the claimant’s pre-existing issues. Unlike Dr Chow, reporting the claimant’s representatives, Medical Assessor Hong did not expressly state the injury was an exacerbation of pre-existing psychological disorder. Noting the clinical evidence, particularly that of Hummingbird Centre, I consider it more likely than not that the claimant’s accident related injury is an exacerbation of a pre-existing psychological disorder.
It is clear that the claimant has had difficulty with schooling in the past, however, I also accept the claimant’s mother’s evidence that the claimant was heading in a much more positive direction in the months leading up to the motor accident. I find that the claimant’s TAFE studies, and her enthusiasm for same, were such that she was on a positive path which more likely than not, would have seen her achieve her HSC and then continue more tertiary studies. I note the issues the claimant was having in a particular class, that included late submission of assessments and absenteeism. I accept the claimant’s evidence that this was due to the particular teacher being a trigger for her anxiety and post-traumatic stress disorder symptoms. In particular, I found the claimant’s mother’s evidence to be particularly believable in this regard.
I find the claimant to be driven in nature, despite the various adversities she has faced in her young life. It is unfortunate indeed that the motor accident occurred at such a critical juncture in the claimant’s life where she was in the process of transitioning to an independent adult life. I accept that the motor accident has caused a significant disruption to the claimant achieving independence and establishing and actioning a plan for her future employment path.
It was correctly pointed out that when the claimant suffered some psychological symptoms impacting her HSC studies prior to the accident, she took the steps to obtain a mental health care plan, participated in treatment and returned back to TAFE.
Indeed, even after the motor accident the claimant has taken pro-active steps to progress in her life and seek employment. However, the difficulties she faces, largely contributed to by the motor accident, has meant that she has struggled to find her feet.
Whilst acknowledging the claimant’s seemingly innate drive and desire to achieve, I do not consider the evidence is such that the claimant has established, on the balance of probabilities, that she would have obtained a psychology degree and pursued such occupation but for the accident. The evidence in that regard is limited to an expression of desire of the claimant, albeit sincere. I accept the findings of Mr Raue who found that the claimant’s school results were such that it was unlikely that she could have successfully pursued such goal, particularly given a weakness in mathematics. In this regard, I note the significant focus on statistics in the study of psychology.

Past economic loss

In terms of past earnings, the evidence is a little limited. The claimant has provided a 2017 taxation return and notice of assessment, with no apparent tax return lodged for other years due to low income.
In 2017 the claimant derived a net income of $15,020 in retail positions.
As noted by the insurer, the records of attendance from the University of Newcastle demonstrate the claimant attended the NewStep program on four occasions in semester 1 2018.
The evidence establishes that it was likely that the claimant would have worked with Mayne Rugs, but for the accident. The business has confirmed the claimant was verbally offered a job working 20 hours per week as her TAFE studies permitted.
The claimant has performed some work since the accident, including the work trail at the café. I accept that the claimant’s accident related injuries substantially contributed to her not maintaining such position.
The claimant also worked for Darrons Seafood between September 2022 and February 2023. She earned approximately $600 per week. Her hours of work were approximately 20 hours per week, however, on one week she worked 35 hours.
It is now over five years since the accident. I have found above that I find it most likely that but for the accident the claimant would have obtained her HSC through TAFE and then gone on to further study, either through university or further TAFE studies. As such, I consider it more likely than not that at this point in time she still would have been engaged in study and working part time.
I find that the claimant’s current accident related incapacity is such that she unable to hold down permanent employment and therefore any loss to date is related to the motor accident.
Whilst the claimant submits that she would have earned $800 per week, I consider this is likely somewhat high and instead adopt a figure of $600 per week which is what she was approximately earning at Darrons seafood.
Accordingly, I calculate past economic loss of $600 per week by 267 weeks to total $160,200. I deduct the amount of $50,000, as submitted by the claimant to account for amounts earned.
I therefore award the amount of $110,200 for past economic loss.
I award an amount of $12,122 for lost past superannuation.
I also allow an amount of $104 for Fox v Wood[2] damages – as agreed by the parties.
[2] (1981) 148 CLR 438.

Future economic loss

The insurer has submitted no allowance should be made. I have provided reasons above as to why I reject the suggestion that the claimant is not suffering an earning incapacity as a result of the accident. More specifically, I have made findings that the claimant’s most likely future circumstances are that but for the accident she would have obtained her HSC qualifications and continued to pursue tertiary study and found employment in a professional or semi-professional capacity.
I have also found that the claimant was not more likely to have obtained a degree in psychology.
I also acknowledge the significant past history of learning difficulties and psychological symptoms. I find that such difficulties were more likely than not to have manifested in some loss of earning potential and likely intermittent periods where the claimant would be unable to work whilst she sought treatment and recovered from any exacerbations of her underlying issues. The claimant’s own written submissions acknowledge this point, hence the deduction of 40% for vicissitudes.
On the evidence, having found the claimant would not have reached her goal to become a psychologist, I am not able to make a finding as to what alternative profession/employment the claimant would have likely embarked on but for the accident. No alternative proposition has been put before me.
Whilst the insurer relies on the findings of the vocational capacity centre as to viable alternative employment options, I accept that some, if not all are not appropriate for the claimant on account of her chronic migraine issues, and psychological symptoms. However, I do consider that with more vigorous pursuit of treatment options there is a more than reasonable chance the claimant will see an improvement in her symptoms.
I therefore consider the most appropriate way to assess the claimant’s entitlement to future economic loss damages is by way of a buffer. The claimant’s Counsel suggested that such buffer would be very substantial.
The claimant is 24 years of age, and has approximately 43 years of working life ahead until retirement age. This is obviously a substantial period of time. Whilst I find that the claimant is likely to gradually see an improvement tin her working capacity, I do consider that the motor accident has caused a likely permanent loss of earnings, as compared to the situation where the accident did not occur.
Keeping in mind all the matters discussed above, I award a buffer (including superannuation) of $350,000 inclusive of superannuation.

SUMMARY OF DAMAGES

The claimant’s damages are assessed as follows:
Past Economic Loss:  $110,200
Past Superannuation:   $12,122
Fox v Wood:  $104.00
Future Economic Loss:  $350,000
TOTAL:  $472,426
Noted the insurer is entitled to a credit of $52,104 representing payment of weekly statutory benefits.

COSTS

Costs are awarded in the amount of $47,729.17 in accordance with the attached costs calculator worksheet. Noted that stage 3 and 4 costs are calculated after deducting payments of weekly statutory benefits.[3]
[3] See s 8.6(2) of MAI Act, Schedule 1, Part 2 cl(5) of the Motor Accident Injuries Regulation 2017
The claimant and the insurer have submitted an agreed schedule of costs and costs have been calculated in accordance with same. I have allowed two additional hours for representation at the assessment conference noting the conference ended after 1.30pm.
I have also allowed professional fees for medical assessment applications, which were not included in the schedule of agreed costs.

[2024] NSWPIC 297

5 June 2024