CAC v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	CAC v AAI Limited t/as GIO [2024] NSWPIC 574
CLAIMANT:	CAC
INSURER:	AAI Limited trading as GIO
MEMBER:	Susan McTegg
DATE OF DECISION:	16 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claim for damages; 36-year-old claimant was a driver in a motor vehicle involved in a forceful rear end collision on 5 November 2020; injuries to cervical spine, lumbar spine, bilateral knee injuries; bilateral shoulder injuries; post-traumatic stress disorder; major depressive disorder; agreed whole person impairment greater than 10%; claimant returned to work following accident until she commenced maternity leave in January 2022; she did not return to work thereafter; question as to why not return to work; extent of capacity for work; causation of injury to knees and both shoulders; extent of pre-existing injuries; Held – claimant honest witness; condition deteriorated whilst on maternity leave; incapacity for work due to psychological injury; since August 2022 claimant totally unfit for work; accident caused change in most likely future circumstances; had accident not occurred claimant would have returned to work part time until youngest child commenced school; damages assessed on basis total incapacity until retiring age; discount for vicissitudes increased to 20% to take into account claimant may have developed serious psychological illness independently of accident given her pre-existing generalised anxiety disorder and the remote possibility of a return to work; past economic loss assessed at $64,112.50; future economic loss assessed at $812,450.40; non-economic loss assessed at $450,000; total damages assessed at $1,326,562.90; costs assessed in favour of claimant.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 1. On the issue of liability for the claim, the insurer’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017, I specify the amount of damages for this claim as $1,326,562.90. . 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim is $97,442.16 inclusive of GST. 4. Attached to this certificate are reasons for my assessment.

REASONS FOR DECISION

INTRODUCTION

On 5 November 2020 [CAC] (the claimant) was driving home from work when the insured vehicle collided heavily with the rear of her vehicle (the accident). Both vehicles sustained extensive damage. The claimant’s vehicle was written off.
The claimant alleges she sustained the following injuries:
(a)    injury to the neck;
(b)    injury to both shoulders;
(c)    injury to the lumbar spine;
(d)    injury to both knees, and
(e)    post-traumatic stress disorder.
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the MAI Act.
In a liability notice issued under s 6.20(1) of the MAI Act dated 6 October 2022 the insurer has admitted liability for the claim.
The claim was listed for assessment on 29 August 2024.
At the outset of the assessment conference the parties agreed the claimant’s pre-accident earnings averaged $500 net per week.
It was agreed there were 27 years to retirement and the relevant multiplier on the 5% tables for 27 years was 783.
Mr Ghabar for the claimant sought to rely upon the report of Dr Lee dated 27 September 2022 which had been omitted from the claimant’s bundle. No objection was raised to the admission of that report. Mr Guihot sought to rely upon a 1 page PBS record. No objection was raised to the insurer’s reliance on that document.
I am asked to assess damages in respect of the following:
(a) non-economic loss, and
(b) economic loss.

THE EVIDENCE

Statements of the claimant dated 9 January 2023, 29 May 2024 and 14 August 2024

[CAC] was born in Iraq and moved to Australia in 2010. She is currently 40 years of age and was 36 years of age at the time of the accident.
[CAC] reported she was involved in minor accidents in 2011, 2014 and 2019. She was not injured and did not make any claim.
[CAC] lives with her husband and three children.
She received a Diploma in Medical Laboratory Technology in 2004 and a Bachelor of Medical Science in 2007 from Al-Mausel University Iraq. In 2012 she completed a Certificate III Business Medical Administration at Liverpool TAFE.
[CAC] worked as an unpaid Pharmacy Assistant at Fairfield Hospital from 2012 to 2013.
In 2013 she commenced employment as a Technical Officer in the Microbiology Department at [CAD]. She worked full-time from 2013 until 1 May 2018 when she commenced maternity leave. [CAC] returned to work in 2019 on part time hours although she worked extra shifts where needed. She worked two days per week and was paid about $1,200 to $1,300 per fortnight.
Following the accident on 5 November 2020 [CAC] declined to be taken to hospital and instead consulted her family doctor at MP Medical Centre, Fairfield. She reported she sustained injures to her neck, back and right shoulder. She also developed psychological symptoms including anxiety, a fear of driving and flashbacks. [CAC] noted she had been diagnosed with post-traumatic stress disorder.
[CAC] commenced treatment with Steven Nguyen, physiotherapist.
[CAC] said she had a day off work after the accident and a few more days off work about a month after the accident. She otherwise returned to her part time work as a Technical Officer in pathology, although her husband drove her to and from work. She reported sitting and looking through a microscope caused her neck pain and sitting for long periods aggravated her back pain. [CAC] also reported pain and discomfort in her knees and back when going up and down stairs and when kneeling and squatting.
[CAC] commenced maternity leave in January 2022 with the intention of returning to work in August 2022 on a full time basis. [CAC] said she always intended to have a third child and whilst she worked part time following the birth of her second child she had intended to go back full time in August 2022. She said her mother in law lived with her so she could help look after the children. [CAC] stated that between the time of the accident and the birth of her third child in March 2022 her mind and body deteriorated.
She has not returned to work. [CAC] states she has missed out on promotional opportunities. She had started work as a Technical Assistant and was moving into higher grades as she progressed. She became a Technical Officer before the accident. [CAC] states she missed out on training that took place last year to learn how to read plates and become a Scientific Officer.
[CAC] reported she commenced treatment with Anusha Harinath of Mindways Psychological Services on 8 July 2022. She reported consistent fear and anxiety whilst travelling in a vehicle and no longer drives unless absolutely necessary. On those occasions she experiences heart palpitations, breathlessness and is fearful of another accident.
[CAC] no longer sleeps well and has nightmares at least three times a week. She has constant paranoid thoughts of her family being killed in a motor vehicle accident. She has a loss of appetite and often skips meals resulting in the loss of about 10kg.
She reported pain in her right shoulder, neck and lower back which radiates into both legs. The pain in her lower back is aggravated by sitting, bending, twisting or lifting and makes it difficult for [CAC] to complete tasks like sweeping, mopping, vacuuming and gardening. She also has pain in her knees and she struggles to kneel, squat or walk upstairs.
In her supplementary statement [CAC] reported she consults her psychologist Anusha weekly or fortnightly. She commenced treatment with Dr Wael Wahaib, psychiatrist on
12 August 2023. She has taken various medications but currently is taking Duloxetine to treat her anxiety and depression and Clonazepam for panic attacks. She is also taking Mirtazapine 45 mg and Quetiapine XR 50mg.
[CAC] reports she has attended hospital about three times for panic attacks which have also been associated with sweating, shortness of breath, chest pains and feeling like she is going to fall apart. She states the panic attacks have caused chest problems and she has been referred to a cardiologist.
[CAC] avoids driving except for taking her children to school and childcare and no longer likes going out; home is where she feels safest. She is fatigued and has low energy levels.
She has become withdrawn from friends and family and her relationship with her husband has become strained.

Oral evidence of the claimant

[CAC] was questioned by Mr Guihot about her assertions to Dr Bodel, Dr Lee and
Dr Keller that she no problems in her neck, back and shoulders before the accident.
[CAC] disputed she had any serious pain before the accident, simply that she would get tired, just ‘normal things’. When questioned specifically [CAC] said she did not remember experiencing low back pain before the accident. In relation to the knees, she said there was nothing serious. [CAC] said she had no medication and no regular pain.
When questioned [CAC] conceded she was involved in a motor vehicle accident on
24 February 2014 when she bit her tongue and experienced neck pain, back pain and a bruise to the left breast. She did not recall bruises elsewhere including to the left knee. She did not remember undergoing an X-ray or ultrasound.
[CAC] did not recall her attendance on Dr Suhaily on 26 July 2016 when she reportedly complained of back pain and neck pain, and Dr Suhaily suggested an X-ray of the back.
[CAC] did not recall complaining of muscular back pain on 28 July 2016 and nor did she remember the prescription of pain relief medication.
[CAC] did not recall a fall onto her left knee on or about 4 November 2016 although she did not dispute it occurred. She did not remember undergoing an X-ray or being prescribed pain relief. [CAC] did not recall complaining of left knee pain on 1 August 2017 or left knee and lower back pain on 8 August 2017. She had no recollection of complaining of stress and anxiety the same day.
[CAC] did not recall telling Dr Suhailly she had pain and numbness in her hands and feet on 27 November 2017.
Whilst she recalled her involvement in the accident on 23 February 2018 [CAC] did not recall experiencing left knee pain or any pain following that accident and nor did she remember attending a medical practice on 5 April 2019 complaining of left knee pain.
[CAC] did not recall attending Wetherill Park Medical Centre on 1 August 2019 after falling and landing on her left knee earlier that day.
[CAC] agreed she claimed injury to both knees caused by the accident describing this pain as “obvious”. She denied the reason she did not mention earlier complaints was because it would harm her claim for damages, stating she could not remember and suggesting it had not been “real pain”.
Mr Guihot also questioned [CAC] about her employment at the time of the accident. She confirmed she started work for [CAD] on 10 April 2013 as a casual pathology aide and become a permanent employee on 24 August 2015. Ms Toyba confirmed she took maternity leave from 4 January 2016 until 23 January 2017 and again from 30 April 2018 to
7 July 2019. Thereafter she returned to work part time two days a week although [CAC] states she also worked additional casual days.
[CAC] stated after the birth of [CAH] she returned to work part time because she was planning to have a third baby and did not wish to disadvantage her employer. She said following the birth of her third child she planned to go back to work full time because [CAG] and [CAH] would have been at school and her third child would have been in daycare.
She confirmed as of November 2020 she worked at Auburn and during her subsequent period of maternity leave the company relocated to Bella Vista. [CAC] confirmed she expected to return to work following that maternity leave in August 2022.
[CAC] was referred to a phone call with [CAF], known as [CAI] on 11 April 2023 in respect of her return to work when [CAC] reportedly said it was difficult to cope with three kids, and it was far to drive. The claimant stated [CAI] knew about the accident and her situation and that she couldn’t drive. She said she spoke to [CAI] to extend her mat (maternity) leave.
When questioned by Mr Guihot about her return to work following the accident the claimant agreed she returned to her normal hours after only a few days off work but she stated she could not do the same duties. [CAC] said she spoke to her supervisor and was given lighter duties, stating she “couldn’t sit on microscope”. [CAC] agreed when she completed an assessment of her performance in June 2021 she scored excellent assessment results in every key indicator, although she reiterated she was working light duties.
The claimant’s evidence is corroborated by an email she sent to [CAE] dated 26 February 2023 in relation to a TPD (total and permanent disability) claim where [CAC] stated:
“… As you remember I had big car accident on 2020 on November you saw the photos, after that I was doing restricted duties, I asked to you about it and I was reading slides and some light duties. …”
Mr Guihot questioned [CAC] about her lack of treatment for her driving phobia. She agreed she had not been referred to see someone specially qualified to treat persons with a fear of driving. [CAC] stated her husband drives her everywhere although she also conceded she drives locally.
[CAC] was also questioned about receipt of the Carers Allowance. She said she was caring for her mother-in-law and continued to receive the payment until maybe one year after the accident. [CAC] said the care she provided was translating for her mother in law and assisting her with decisions. She confirmed her mother in law was abled bodied and
[CAC] was not required to do anything physical to help her.
She was also not aware that in the financial year ended 30 June 2023 she received payments totalling $28,605 from Centrelink, greater than the amount she would have received if she had continued to work two days a week. When asked if she chose to stay home and get a payment from Centrelink [CAC] referred to her Diploma and Degree and said she had her mother in law available to the look after the kids.
[CAC] was also questioned about her psychological treatment, noting she stopped seeing Ms Fisher on 9 August 2021 when she retired but did not see another psychologist until 18 July 2022. She thought that may have been to do with COVID-19. She agreed she did not see Dr Wahaib until June 2023 when her situation worsened with panic attacks.

Application for personal injury benefits

In the Application dated 3 February 2021 [CAC] described her injuries as:
“Pain in back, neck, right shoulder, anxiety, fear with driving .”

Pre-accident treating medical evidence

MP Services Family Practice

On 13 May 2013 the [CAC] was treated for muscular neck spasms.
On 24 February 2014 Dr Suhaily, general practitioner (GP) reported a motor vehicle accident the day before. [CAC] had bitten her tongue. She reported neck pain, back pain – lower thoracic to upper lumbar; bruise to the lateral part of the left breast and bruises to the lower part of the left knee. She also reported a muscle spasm on the left side of the neck.
Dr Suhaily prescribed Celebrex.
On 25 February 2014 Dr Suhaily reported an X-ray of the neck; the spine was normal.
[CAC] was referred for physiotherapy on 29 June 2016.
On 28 July 2016 Dr Suhaily reported back pain radiating down to the left thigh. [CAC] had an X-ray of her lumbar spine on 3 August 2016 which did not disclose any abnormality.
On 4 November 2016 Dr Said reported a fall on the left knee. [CAC] underwent an X-ray on 21 November 2016 with no significant findings.
On 21 July 2017 [CAC] was diagnosed with muscular pain and referred for physiotherapy in respect of the upper shoulder and upper back pain. She was advised in relation to posture.
On 1 August 2017 Dr Suhaily reported left knee pain, mainly when going upstairs.
On 8 August 2017 Dr Suhaily reported left knee pain, lower back pain, stress and anxiety.
[CAC] was referred for physiotherapy.
On 27 November 2017 Dr Suhaily reported the claimant was concerned and anxious. She complained of numbness for three days to both hands and feet although on
28 November 2017 Dr Suhaily reported an ultrasound of both hands and wrists was normal and [CAC] reported the pain was much less.
On 31 January 2018 Dr Suhaily reported [CAC] was worried about her two year old son.
On 23 February 2018 Dr Suhaily reported the claimant’s involvement in a motor vehicle accident that morning at 7.30am. It was noted she was 24 weeks pregnant and her car was hit from behind. [CAC] complained of mid lower left quadrant pain although she reported she fell well in general.
On 3 May 2018 Dr Suhaily reported [CAC] complained of back pain (in the context of pregnancy).
On 8 October 2020 the claimant reported being stressed. She had lost 23kg in weight after fasting intermittently since earlier that year.

Wetherill Park Medical Centre

On 25 November 2017 [CAC] complained of bilateral finger numbness along the medial nerve distribution. She was referred for an ultrasound.
On 6 April 2019 [CAC] was upset and experienced chest pain and palpitations following an argument with her husband.
On 1 August 2019 Dr Lawal of Wetherill Park Medical Centre reported [CAC] had fallen and landed on the left knee resulting in swelling and tenderness over the patella with slightly reduced range of movement.
On 28 August 2019 Dr Sharrad recorded [CAC] presented with upper back left side pain which she had had on and off for two weeks. She denied any stress. She reported her left knee still hurt from the minor fall three weeks earlier.

Plus 1 Medical Centre

On 5 April 2019 Dr Setrak reported left knee pain for a few days and referred the claimant for an X-ray of the left knee.

Post–accident treating medical evidence

On 5 November 2020 [CAC] consulted Dr Yousif at Wetherill Park Medical Centre. She reported she was driving, her car was stopped at the traffic light when it was hit from behind by another car. She reported her neck and upper back was sore and she was tight in the chest. Dr Yousif reported the examination was normal except for tenderness mainly in the right trapezius, the upper back paraspinal areas and the lower paralumbar area.
On 13 November 2020 Dr Suhaily reported [CAC] was in a car accident on
5 November 2020 and she reported a whiplash injury and mid thoracic bilateral pain. She consulted Dr Suhaily again on 16 and 19 November 2020 in respect of neck and back pain post-accident.
On 22 November 2020 Dr Rahman of Wetherill Park Medical Centre reported [CAC] complained of left shoulder pain, although he also reported “There was no pain on left shoulder after MVA.”
On 4 February 2021 Dr Suhaily reported [CAC] still had neck pain, stress and “fear to drive”.
On 10 February 2021 Dr Suhaily reported “stress, anxiety, fear to drive, top of both shoulders, pain and lower back pain”.
On 22 February 2021 Dr Raispouroskouie of Wetherill Park Medical Centre reported
[CAC] was now complaining of knee pain for the last two months. The accident in November 2020 was noted, as was whiplash, shoulder and back pain.
An X-ray of both knees on 2 March 2021 revealed minimal degenerative change, spurring from the tibial intercondylar spines bilaterally whilst an ultrasound of both knees of the same date revealed no abnormality.

On 8 March 2021 Dr Suhaily reported [CAC] still had neck pain, stress and a fear of driving. She also recorded knee pain, noting the claimant said she saw a doctor at Stockland clinic and had a knee X-ray and ultrasound.
In an Allied health recovery request (AHRR) dated 15 February 2021 Michelle Fisher, of Mindways Psychological Services diagnosed post-traumatic stress disorder and noted
[CAC] reported nightmares and recurrent memories of the accident. She also reported high levels of anxiety, depression, lack of interest, fear of driving, fear of accidents and sleep disturbance. [CAC] saw Ms Fisher on a total of four occasions.
In an AHRR dated 17 February 2021 Stephen Nguyen, exercise physiologist reported cervical whiplash, right shoulder strain and thoracic spine strain. He reported the claimant was quite fearful, fear avoidant, pain focused and deconditioned. He considered she would require intensive treatment to break out of her chronic pain cycle.
[CAC] initially saw physiotherapist Vieran Parbhu on 25 March 2021. Treatment ceased and she was referred to exercise physiology attending the initial assessment on
9 August 2021.
On 14 November 2022 Kerrin Gomez, exercise physiologist of Physioinq reported a severe deterioration in functional capacity and an increase in baseline levels of pain during treatment breaks. She considered [CAC] was not yet able to return to work.
A CT scan of the cervical spine of 17 March 2023 concluded:
“No evidence of fracture or dislocation.
Loss of the cervical lordosis, this might be related to muscle spasm.
Very minor spondylitic changes at C5-6 level with a central osteophyte and disc protrusion compressing the thecal sac in the midline without nerve compression.”
A bilateral knee X-ray report dated 17 March 2023 concluded:
“Minor osteoarthritic changes with prominence of the tibial spines.
There is no fracture or dislocation, joint spaces are preserved.
No evidence of joint effusion. Patella is intact bilaterally.”
An ultrasound report of both shoulders dated 22 March 2023 concluded:
“Bilateral subacromial bursitis with bursal impingement. Intact rotator cuff”.
On 8 July 2023 [CAC] presented to Liverpool Hospital Emergency Department with headache and light-headedness. She also reported dizziness and central chest pain.
On 3 November 2023 Dr Wael Wahaib, psychiatrist reported he saw the claimant initially in June 2023. He diagnosed post-traumatic stress disorder and major depressive disorder. He started [CAC] on Duloxetine 60 mg which was increased to 120mg in August 2023 and in September 2023 he added Mirtazapine.
On 14 March 2024 [CAC] presented to Fairfield Hospital following a panic attack with palpitation and numbness of the face.
On 3 June 2024 [CAC] presented to Fairfield Hospital Emergency Department with panic attack symptoms including chest heaviness/palpitations and numbness of the hands and lips.

Anusha Harinath, Mindways Psychological Practice

In a report dated 17 October 2022 Ms Harinath reported she saw [CAC] on 8 July 2022, 18 July 2022, 1 August 2022 and 9 September 2022. On 19 September 2022 she reported the claimant presented with a very flat mood, impoverished speech and slow body movements. She was observed to be anxious and depressed. She avoided eye contact. She had suicidal ideation. Her behaviour was withdrawn and she demonstrated poor insight and judgement. Ms Harinath was not able to challenge her negative thought patterns as she was convinced her family was going to die in an accident. She was skipping meals and there were relationship issues with her husband. Family members were impatient with her moods. She was still experiencing nightmares. She considered the claimant’s ability to return to work was severely restricted. Ms Harinath diagnosed post-traumatic stress disorder and recommended evaluation by a psychiatrist.
In an AHRR dated 6 May 2023 Ms Harinath reported [CAC]’s presentation had deteriorated. She was not coping with daily life and had become increasingly withdrawn and emotional. She recommended evaluation by a psychiatrist and medication.
Ms Harinath provided a detailed report dated 5 July 2024 summarising the claimant’s attendance and treatment at Mindways Psychological Practice. She reported most sessions were done via telehealth as her symptoms deteriorated. The following is a brief outline of the history reported:
·        5 November 2022 – continued anger and frustration; tired, confused, depressed and anxious;
·        5 December 2022 – very low mood; little motivation to do anything; increasingly angry and frustrated;
·        30 January 2023 – increase in panic attacks; attempting to drive in local area despite feeling very anxious; side effects from taking Fluoxetine so ceased after three days; continued anger, depressed mood, anxiety, fatigue, poor focus and memory, stress, poor appetite; dizziness, headaches and chronic pain; paranoid about dying in motor vehicle accident or cancer; pessimistic; recommended she see GP for referral to psychiatrist;
·        10 February 2023 – commenced on Fluoxetine again; reported increase in anger, nightmares and insomnia, difficulty concentrating and emotional;
·        27 March 2023 – very emotional; unstable mood; relationship with husband impacted;
·        26 May 2023 – very tired due to poor sleep; stressed, depressed and worried all the time; anxious driving kids to school; commenced on Venlafaxine (Efexor-VR);
·        5 June 2023 – still taking Efexor; poor sleep, low mood and paranoid thoughts about children dying;
·        10 July 2023 – taken to hospital by ambulance; prescribed Duloxetine; feeling nauseous and dizzy; loss of appetite, back and shoulder pain, withdrawn and anxious;
·        7 August 2023 – panic disorder symptoms and went to Fairfield Hospital again; numbness in the head but scans clear; seen psychiatrist who prescribed medication; trying to make changes but nothing working;
·        21 August 2023 – psychiatrist prescribed Venlafaxine for panic attacks; claimant felt ‘crazy’. Not coping well and had not eaten since the day before. Pain in neck, back and shoulders;
·        11 September 2023 – unable to lift arm; panic symptoms daily several times; constantly angry, stressed and emotional;
·        13 October 2023 – highly anxious and emotional; diarrhoea and feeling unwell;
·        3 November 2023 – she had flu; unable to move right hand; appeared confused; thoughts disordered; she couldn’t concentrate; having difficulties controlling emotions; crying a lot; not sleeping well;
·        24 November 2023 – difficulty controlling feelings; angry all the time; extremely fearful and felt like she was losing control;
·        5 December 2023 – blood test results showed an iron deficiency and loss of weight due to skipping meals; nail infection and taking antibiotics; fears of death and her future challenged; claimant unable to think in a logical manner; levels of anxiety consistently elevated;
·        2 February 2024 – heart rate high; pain in the chest; felt weak; dizzy with headaches; unable to sleep; increase in panic attacks;
·        23 March 2024 – presented to Emergency Department the week before with rapid heart rate, shaky and difficult to breathe; daily numbness in hands; significant decline in memory and concentration; hospitalisation discussed but resistant to the idea; extremely stressed, anxious about health but did not have the capacity to implement positive changes;
·        24 April 2024 – panic attacks since last appointment reduced; more positive;
·        3 May 2024 – psychiatrist prescribed Mirtazapine 45mg and Duloxetine 120mg; low motivation; insomnia, anxious thought patterns; reduced appetite; ongoing anger and frustration;
·        17 May 2024 – trying to increase daily activities with difficulty; family not aware of psychological problems due to stigma attached;
·        8 June 2024 – nervous but managed to drive self to appointment; panic attacks several times a day; again, presented to Emergency Department at Fairfield Hospital; ‘desperate’ to ‘save myself’; paranoid about dying; prescribed Clozapine to take as required; fearful of being forced to go to hospital against her wishes; and
·        5 July 2024 – panic attacks reduced to once a day; trying hard to remember and use strategies taught; happy appointment with Dr Mason cancelled; sense of impending doom; convinced something unfortunate would happen to her family; ongoing nightmares, flashbacks, anxiety, insomnia and anger.
Ms Harinath reported [CAC] had consistently presented with severe symptoms of post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder and panic disorder.
She reported prior to the accident [CAC] was a capable, intelligent and confident woman. Since the accident she reported a significant decline in her mental/cognitive abilities making it very hard for her to learn new skills or engage in employment. Ms Harinath considered the claimant’s capacity for employment was nil.

Medico-legal reports

Dr James Bodel, orthopaedic surgeon

Dr Bodel assessed the claimant and provided a report dated 21 October 2021. Dr Bodel reported at the time of the injury [CAC] was only off work one day but a month after the injury she had increasing pain and took a further few days off work.
He reported she had pain at the neck, aggravated by head down posture or using her arms overhead. She had pain in both shoulders, worse on the right. She could not push, pull, lift or use her arms overhead. [CAC] reported pain in the lower part of the back was aggravated by prolonged sitting, bending, twisting or lifting. She also reported pain in the front of both knees, causing difficulty going up and down stairs and an inability to kneel or squat.
Dr Bodel diagnosed a whiplash associated disorder involving the cervical spine, probable rotator cuff pathology in the right shoulder and possibly the left shoulder. There was at least bursitis in both shoulders. He also diagnosed a soft tissue musculoligamentous injury to the low back and to the front of both knees causing post-traumatic chondromalacia in the retro patellar region. Dr Bodel assessed a 19% whole person impairment (WPI).
Dr Bodel reviewed the claimant and provided a report dated 31 May 2023. He reported the claimant still had significant neck and shoulder girdle pain, lower back pain and anterior knee pain although he also suggested the knee pain had largely recovered. Dr Bodel reported
[CAC] was uncomfortable sitting on a chair.
Dr Bodel reported the prognosis was guarded but concluded she had the capacity to return to work as a technical officer in a laboratory situation when her physical condition stabilised.
Dr Bodel reviewed the claimant and provided a report dated 25 May 2024. He reported
[CAC] still had pain and stiffness in the neck and both shoulders, right side worse than the left. She had lower back pain aggravated by prolonged sitting or bending. He reported the knee pain had improved but not completely resolved. He also noted she had psychological sequalae. He reported restricted range of movement of both shoulders.
He noted a CT scan of 17 March 2023 showed degenerative change at C5/6 and C6/7 with no evidence of nerve root or spinal cord compression. He reported X-rays of both knees showed minor arthritic changes. An ultrasound of both shoulders dated 22 March 2023 showed evidence of bursitis but no definite rotator cuff tear.
In a supplementary report dated 22 June 2024 Dr Bodel noted [CAC] had not returned to work since January 2022. He concluded her prospects of return to work were poor and her ability to compete in the open labour market was affected due to her reduced physical capacity, and ongoing pain and restriction.

Dr Yuk Kai Lee, orthopaedic surgeon

Dr Lee assessed the claimant at the request of the insurer and provided a report dated
27 September 2022.
Dr Lee observed tenderness at the upper cervical spine and in the lumbar spine at the lumbar sacral junction. He also noted tenderness at the suprascapular region of both shoulders and restricted range of motion. He noted patellofemoral tenderness in both knees.
Dr Lee diagnosed a whiplash associated disorder involving the cervical spine, probable rotator cuff injury in both shoulders, a soft tissue musculoligamentous injury to the low back and a direct blow to the front of both knees causing post-traumatic chondromalacia. He assessed a 20% WPI.

Peter Tingle, occupational psychologist

Mr Tingle assessed the claimant on 29 November 2022 by Skype and completed a vocational capacity assessment report.
He reported the average technical officer salary in Australia was $80,504, although he reported most experienced workers earn up to $97,462 per year. He reported [CAC] had a long term plan of studying pharmacy.
Mr Tingle reported that [CAC] had planned to return to work after about six months of maternity leave on a part time basis and to increase her hours over time to full-time or near full time. He also said she reported in the last six months her physical and psychological symptoms had worsened and she extended her leave because of those difficulties.
Mr Tingle concluded should the claimant have maintained her trajectory she ought to have been capable of working on a full time basis as a pharmacist earning between $83,000 and $120,000 per year.
He concluded in practical terms [CAC] was totally unemployable on the open labour market for the foreseeable future. However, he reported if she was able to manage her chronic pain and there was an improvement in her functioning she may have the capacity to return to part time work as a technical officer in pathology or as a pharmacy assistant for no more than 16 hours per week.

Dr Andrew Keller, occupational physician

Dr Keller assessed [CAC] on behalf of the insurer and provided a report dated
17 April 2023.
He reported following the accident, the claimant was very stressed and shaky but unaware of any immediate pain or injury. Her husband took her to a general practitioner for review due to a rapid heart and because she was pregnant. [CAC] reported pain in her neck and shoulders and was recommended Paracetamol. She did not undergo any investigations, was not certified unfit for work and rested at home for two days. She returned to her normal hours of work although she complained to her GP of ongoing pain in her neck, shoulders and knees. On 31 January 2022 she commenced maternity leave and has not returned to work.
On examination Dr Keller reported the claimant demonstrated a slow but full and symmetrical range of motion in the cervical spine, bilateral shoulders, elbows, wrists, fingers, thoracic spine and lumbar spine. There was a full range of motion in both knees with no evidence of crepitus or instability.
Dr Keller concluded it was possible [CAC] suffered temporary soft tissue injuries to her neck and shoulders. In his opinion they would have resolved in less than three months from the time of the accident. He did not consider there was any lasting physical injury which would cause the claimant any work restriction. Nor was there any assessable impairment.

Dr Richa Rastogi, psychiatrist

Dr Rastogi assessed the claimant and provided a report dated 24 September 2021.
She reported at the time of the accident [CAC] worked as a technical officer two days a week and post-accident she had only one day off work.
The claimant reported her car was rear ended by the insured vehicle at high speed causing her to lunge forward and then backwards resulting in strain to the neck and lower back. She was too scared and fearful to go to hospital. Her husband attended and drove her to the medical centre. Her car was a write off. Dr Rastogi reported she had lower back pain and discomfort and pain in the right shoulder. She had pain radiating to both legs and was shaking and tremulous.
Dr Rastogi reported [CAC] had persistent pain in the right shoulder, and neck as well as lower back pain. She also reported bilateral knee pain.
Dr Rastogi diagnosed post-traumatic stress disorder. She reported:
“Her current functional impairments are associated with PTSD with symptoms of
intrusive nightmares, arousal, avoidance of driving, excessive fears and catastrophic
thinking with reactivity. She reported emotional dysregulation, startled responses and
avoidance of high stimulus environment with high levels of irritability. Her sleep,
appetite and motivation were poor. She is very aroused with avoidance and is socially restricted to do things.”
In relation to capacity for work Dr Rastogi commented [CAC]’s pace was reduced and she needed more time to finish tasks but her work was supportive and she is maintaining two days of pre-injury work. She thought it was unlikely the claimant could increase her work and stated she would need to work in a supportive environment.
Dr Rastogi was of the view the claimant had not reached maximum medical improvement.
Dr Rastogi reviewed the claimant on 9 March 2023. Dr Rastogi reported [CAC] had her third baby in 2002 and took six months maternity leave but could not return to work due to deconditioning.
Dr Rastogi reported [CAC] continued to be afraid of driving and hated being a passenger. She had panic attacks and struggled with arousal and vigilance in the car. She was home bound and socially secluded. Her physiotherapist was coming to her home and she had telehealth sessions with her psychologist. She reported constant thoughts of death and was fearful for her children’s safety. She did not want a third child and she had become more stressed and was not coping. She was irritable, shouting at her children and losing her temper. Her mother-in-law helped with household chores and the children. She had chronic insomnia and poor motivation and drive. She was tormented by flashbacks and nightmares of the accident. She was emotionally disconnected from her children. Her motivation was poor and she could not do tasks or engage in pleasurable activities.
Dr Rastogi concluded [CAC] was significantly impaired by her post-traumatic stress disorder. She reviewed the report of Peter Tingle and concluded the claimant could not work in her pre-injury occupation but had the capacity to work reduced hours in a sedentary step down and less stressful role of up to 16 hours per week.
Dr Rastogi reviewed [CAC] on 15 January 2024. She noted the report of Dr Wayne Mason of 15 May 2023 who considered [CAC] required urgent psychiatric treatment including hospitalisation. She noted Ms Rastogi had been under the care of Dr Wahaib since 2023 and was consulting her psychologist weekly to fortnightly.
Dr Rastogi reported [CAC] had a persistent depressive disorder with panic attacks and specific phobia disorder. She described the claimant as extremely debilitated by anxiety, irrational fears and panic attacks. She was avoidant of driving and had poor emotional regulation. She concluded the claimant was totally incapacitated for work due to psychological barriers. [CAC] was socially reclusive and isolated, had lost friendships and her family relationships were strained. She had ongoing anhedonia and loss of interest in activities. She struggled with household chores. Dr Rastogi assessed a 18% WPI.

Dr Jeffrey Baron Levi, vocational assessor

Dr Baron Levi assessed the claimant for the insurer and provided a report dated
18 April 2024.
He reported [CAC] said she felt angry and stressed and experienced daily panic attacks. She believed she was going to have another accident. Dr Baron Levi also reported she said she was unable to drive although she told him she drove her children to school, albeit a short distance.
Dr Baron Levi concluded the claimant satisfied the DSM-5 diagnosis of generalised anxiety disorder with a delusional disorder. He opined that she presented with symptoms of a generalised anxiety disorder prior to the accident which “no doubt had its origins in her traumatic experiences while living in Iraq”. He noted prior to the accident the claimant expressed an unreasonable fear that her child would be born with a disability, causing her excessive worry and anxiety.

Dr Baron Levi concluded [CAC] was over reporting her symptoms, particularly having regard to the opinion of Dr Keller. He concluded the claimant was capable of sustained employment on a “more than part-time basis” noting she continued working for at least 12 months post-accident and only stopped after the birth of her child.
He was of the view [CAC] was capable of working as a pharmacy assistant or a receptionist in a medical centre.
In a supplementary report dated 2 July 2024 he commented that the claimant’s report of her day to day functioning when he examined her on 9 April 2024 was not the behaviour of a person who suffers from a major depressive disorder as diagnosed by Dr Rastogi.
He also opined that the temporal separation between the accident in November 2020 and her first reported panic attack in 2023 confirms they are “clearly not causally related to the accident”.
He disagreed with the opinion of Dr Rastogi that [CAC] was totally incapacitated for work noting she continued in her pre-injury role for 12 months post-accident and likely would have continued doing so but for her pregnancy.
Dr Baron Levi contended that Dr Rastogi’s diagnosis of a major depressive disorder “ignored the overwhelming evidence that [CAC]’s reported behaviours were driven by excessive worry and delusional and irrational thoughts which … were not consistent with depression but with a generalised anxiety disorder”.

Dr Wayne Mason, psychiatrist

Dr Mason assessed [CAC] at the request of the insurer and provided a report dated
15 May 2023. He reported a good happy childhood. In 2007 her family fled to Syria to avoid persecution before coming to Australia on refugee visas in 2010.
He reported:
“She was depressed in appearance. She described auditory hallucinations of a
depressive nature saying something bad is going to happen. She also described depressive delusions in which she was convinced she and all the members of her family would die. She denied active suicidal intent but believed death was inevitable. She described behaving in an extremely aggressive and abusive manner towards her husband, mother-in-law and children. She also described guilt about her behaviour towards her family and realised the treatment was unacceptable but was unable to change it.”
Dr Mason reported [CAC] was fighting and angry with everybody including with her husband and had no interest in their intimate relationship. She reported she fought with her mother-in-law to the extent that she moved out prior to Easter. [CAC] reportedly told
Dr Mason “We are all going to die, in the car, remember that and do not forget it, remember me please, you will see it in the paper”. [CAC] said she wanted to separate from her husband so that they will not be killed. She said she discussed this with her psychologist who does not believe her and who, [CAC] said, has indicated she does not believe she is able to help her.
[CAC] described herself as a bad mother, she becomes very angry with the children while they are playing and sometimes she hits them. [CAC] said she tells her children they are dumb and stupid. She said she is unable to stop herself because she is so angry. She said she only sleeps for one or two hours. She is unable to enjoy food and has lost between 7 and 10kg. She does not do any cooking or housework which is left to her husband. [CAC] no longer sees any friends, she is sad and nothing makes her happy. She does not like to go out and does not see any friends or relatives including her parents.
Dr Mason considered there was evidence in the GP record of a pre-existing generalised anxiety disorder although he noted it did not particularly interfere with her functioning. He particularised the following entries:
·        she had been anxious in 2016 due to concerns about autism for her children;
·        in 2017 she had numb hands and feet (most likely due to hyperventilation) and was stressed because of the possibility her unborn child could have Downs syndrome;
·        in 2018 she sought reassurance from a paediatrician when her son was slow to commence talking, and
·        in 2018 she was involved in another motor vehicle accident while pregnant and sought reassurance from her GP when she had concerns for the welfare of the foetus.
Dr Mason was concerned about the claimant’s welfare and sought her permission to contact her GP. [CAC] refused because she did not want her community to know of her condition. Dr Mason thought this was a further example of her delusional thinking.
Dr Mason diagnosed a major depressive disorder with mood congruent psychotic features. He reported [CAC] had depressed mood most of the day nearly every day. She had markedly diminished interest and pleasure in activities. She had lost appetite and weight. She suffered from insomnia and from psychomotor agitation. She felt guilty to a delusional degree and had a diminished ability to think or concentrate. She had recurrent thoughts of death. She was aggressive towards her husband and family and had cut herself off from friends and family. He reported delusional thinking and auditory hallucinations. He also reported there was a specific phobia of driving. Dr Mason considered the accident had been the causative factor. He considered her condition serious requiring urgent treatment including psychiatric hospitalisation.
Without treatment he considered the prognosis potentially catastrophic. He considered that [CAC] was not able to function at that time as a mother, housekeeper and wife and considered she was totally unfit for work. He concluded she had not reached maximum medical improvement and would not do so without treatment.

THE RELIABILITY OF THE CLAIMANT’S EVIDENCE

I had the opportunity to assess the claimant during the assessment conference.
Mr Ghabar submitted the insurer attempted to attack the credit of the claimant by suggesting she had been untruthful to medical examiners, in particular Dr Bodel, Dr Keller and Dr Lee. However, Mr Ghabar submitted that [CAC] had said, in effect, that none of those earlier problems were significant, she could not recall them and therefore, did not mention them to those doctors. Mr Ghabar submitted there was no attempt by [CAC] to mislead and when one examines the clinical notes in the two years pre-accident there are one-off complaints in respect of the left knee and on occasion in respect of the neck and low back, none of which interfered with her capacity for work.
In Mason v Demasi[1]Basten JA concluded that discounting an appellant’s oral testimony on the basis of accounts given to various health professionals “which appeared inconsistent either with each other, or with her oral testimony or both” needed to be approached with caution.
[1] Mason v Demasi [2009] NSWCA 227
Notwithstanding this line of questioning I note Mr Guihot, counsel for the insurer did not submit that I would not accept the claimant as a witness of truth.
Whilst the medical records suggest the claimant had sought treatment on various occasions over the seven years prior to the accident a closer analysis of these attendances fails to demonstrate any regularity or consistency of complaint:
·        in 2013 [CAC] complained of neck pain on one occasion;
·        in 2014 she attended her GP following her involvement in the accident on
24 February 2014 with one further attendance on 25 February 2014 when she discussed the X-ray of her spine but with no further complaint;
·        in 2016 [CAC] consulted Dr Said on 26 July 2016 in respect of muscular back pain radiating down the back of the left thigh, with further attendances on
28 July 2016 and 29 July 2016; she underwent an X-ray of her lumbar spine on
3 August 2016; on 4 November 2016 [CAC] reported a fall onto her left knee followed by an X-ray of the left knee on 21 November 2016;
·        in 2017 [CAC] complained of upper shoulder and upper back pain on
21 July 2017 and received advice about posture; she sought treatment for left knee pain on 1 and 8 August 2017; on 25 November 2017 she complained of bilateral finger numbness; on 27 November 2017 she complained of numbness and pain in her bilateral hands and feet followed by an ultrasound of both wrists on 27 November 2017;
·        in 2018 [CAC] was involved in a motor vehicle accident on
23 February 2018; on 3 May 2018 she was treated for back pain; on 6 April 2018 she reported she was upset with chest pain and palpitations following an argument with her husband, and
·        in 2019 [CAC] reported left knee pain and was referred for an X-ray; she presented with left knee pain on 1 August 2019 following a fall; on 28 August 2019 she reported pain in her left knee following her minor fall and she also reported left sided upper back pain off and on for two weeks.
These attendances were sporadic and it is not surprising that [CAC], particularly having regard to her current psychological condition, was not able to specifically recall each attendance when questioned and did not consider the pain she experienced to be serious.
I do not consider there is any notable inconsistency between the oral testimony of [CAC] and the accounts reported by various health professionals. I found [CAC] to be an honest witness who gave her evidence at the assessment conference to the best of her ability.

THE INJURY SUSTAINED BY THE CLAIMANT

Causation of injury to the knees and shoulders

Where there is no dispute [CAC] reported pain in her neck and back following the accident the insurer disputes causation of the alleged injury sustained by [CAC] to both shoulders and to both knees.
Whilst the claimant reported left shoulder pain when she attended Wetherill Park Medical Centre on 22 November 2020, the insurer notes the GP specifically commented “there was no pain on left shoulder after MVA”. Further, the insurer notes there was no complaint of bilateral shoulder pain until 10 February 2021, over three months post-accident.
The insurer notes it was not until 22 February 2021 that the claimant reported she had experienced knee pain for the last two months. The insurer submits the post-accident radiology of the knees demonstrates there is no accident related pathology. Furthermore, it is submitted if the claimant had suffered a “direct blow” to her knee in the accident pain would have onset immediately and it would not have taken her almost four months to complain of same to her GP.
Whilst I am cognisant of the need to use caution when considering photographic evidence[2] it is apparent from the photographs that the insured vehicle struck the claimant’s vehicle with such force that the spare tyre of the claimant’s Mazda which was usually attached to the chassis underneath the vehicle became dislodged before becoming wedged in the front of the insured’s vehicle. I refer to the following photograph of the insured vehicle.
[2] Blacktown City Council v Hocking [20098] NSWCA 144.
I find the force of the collision was such that the claimant could have sustained injuries to both shoulders and both knees.
Notwithstanding the pre-accident complaints of left knee pain there was no complaint relating to the left knee in the 15 month period preceding the accident and no significant history of complaint pertaining to the right knee or either shoulder prior to the accident.
I am satisfied on the balance of probabilities that the claimant sustained injury to both shoulders and both knees caused by the accident.

What injury was sustained

Bilateral shoulder injuries

Dr Lee diagnosed probable rotator cuff injury in both shoulders. However, in his most recent report Dr Bodel noted an ultrasound of 22 March 2023 showed evidence of bursitis but no definite rotator cuff tear in either shoulder. Dr Keller concluded [CAC] sustained temporary soft tissue injury to both shoulders.
I am satisfied that [CAC] sustained soft tissue injury to both shoulders caused by the accident, although having regard to her statement where she only reported ongoing pain in her right shoulder I find any soft tissue injury to the left shoulder has resolved.

Bilateral knee injuries

[CAC] reported ongoing pain in her knees and she struggles to kneel, squat or walk upstairs. The bilateral X-ray of 17 March 2023 only demonstrated minor osteoarthritic changes. Both Dr Lee and Dr Bodel diagnosed post-traumatic chondromalacia. Dr Keller found a full range of motion in both knees with no evidence of crepitus or instability. I am satisfied that as a result of the accident [CAC] sustained post-traumatic chondromalacia and continues to experience tenderness and pain in both knees.

Cervical spine injury

[CAC] reported ongoing neck pain. Both Dr Lee and Dr Bodel diagnosed a whiplash associated disorder. Dr Keller also diagnosed a soft tissue injury to the neck although he considered it had resolved.
Although the CT scan of 17 March 2023 showed only minor spondylotic change C5/6 I am satisfied that [CAC] continues to experience neck pain as a result of a whiplash associated disorder caused by the accident.

Lumbar spine injury

[CAC] reported she experiences pain in her lower back which radiates into both legs and which is aggravated by sitting, bending, twisting or lifting.
Dr Bodel and Dr Lee both diagnosed a musculoligamentous injury to the low back. Dr Keller did not report on or address injury to the lumbar spine.
I am satisfied that [CAC] continues to experience pain and loss of function by reason of a musculoligamentous injury to the lumbar spine caused by the accident.

Psychological illness

It is the claimant’s psychological illness which is the most disabling.
Whilst the claimant returned to work two days after the accident the first report of psychological symptoms following the accident was on 4 February 2021 when Dr Suhaily reported [CAC] had stress and “fear to drive” although on 10 February 2021 he also reported anxiety.
In a AHRR dated 15 February 2021 Michelle Fisher, psychologist diagnosed post-traumatic stress disorder noting [CAC] reported nightmares and recurrent memories of the accident. She also reported high levels of anxiety, depression, lack of interest, fear of driving, fear of accidents and sleep disturbance.
[CAC] ceased work in January 2022 when she commenced maternity leave prior to the birth of her third child. She commenced treatment with Ms Harinath, psychologist in about July 2022. Her clinical records demonstrate a deterioration in the claimant’s psychological coping and on 19 September 2022 she reported [CAC] presented with a very flat mood, impoverished speech, suicidal ideation, withdrawal, and negative thought patterns. She diagnosed post-traumatic-stress disorder, opined the claimant’s ability to return to work was severely restricted and she recommended evaluation by a psychiatrist.
Notwithstanding that recommendation [CAC] did not commence treatment with
Dr Wahaib, psychiatrist until June 2023 after she saw Dr Mason for the insurer. In the meantime, Dr Rastogi saw the claimant for medico-legal purposes. On 24 September 2021 she diagnosed post-traumatic stress disorder and considered [CAC] could maintain her two days of pre-injury work in a supportive environment and on 9 March 2023 she concluded [CAC] was significantly impaired by her post-traumatic stress disorder but had the capacity to work in a sedentary and less stressful role of up to 16 hours per week.
Whilst Dr Rastogi failed to appreciate the seriousness of the claimant’s condition she had acknowledged the avoidance behaviour, excessive fears, cognitive deficits, poor stress coping, emotional dysregulation and the avoidance of driving demonstrated by the claimant.
It was Dr Mason who identified the seriousness of the claimant’s illness. He opined that the claimant had a pre-existing anxiety disorder and diagnosed a major depressive disorder which required urgent treatment, including psychiatric hospitalisation. Indeed, he considered without treatment the prognosis was catastrophic. He concluded [CAC] was totally incapacitated for work although she had not reached maximum medical improvement.
After commencing treatment with Dr Wahaib in June 2023 Dr Rastogi reviewed the claimant and diagnosed a persistent depressive disorder with panic attacks and specific phobia disorder. She concluded [CAC] was totally incapacitated for work due to psychological barriers.
The insurer relies upon the opinion of Dr Baron Levi who disputes the diagnosis of post-traumatic stress disorder. He diagnosed a generalised anxiety disorder with a delusional disorder. He also considered she had a generalised anxiety disorder prior to the accident which he thought had its origins in her traumatic experiences while living in Iraq. He noted prior to the accident she expressed an unreasonable fear that her child would be born with a disability. He considered the temporal separation between the accident in November 2020 and the first reported panic attack meant they were not causally related to the accident. He disagreed [CAC] was totally incapacitated for working noting she worked for 12 months post-accident and would have continued to do so but for her pregnancy.
I have already indicated I do not accept the opinion of Dr Keller relied upon by Dr Baron Levi in concluding that [CAC] was over reporting her symptoms.
I do not accept the opinion of Dr Baron Levi as to diagnosis or capacity for work having regard to the evidence of the treating psychologist Ms Harinath as to the claimant’s deteriorating psychological condition.
However, I do accept the opinion of Dr Mason and Dr Baron Levi that Ms Rastogi had a pre-existing generalised anxiety disorder although it had not impacted the claimant’s functioning at home or work.
I rely upon the decision of the Court of Appeal in Mason v Demasi[3] where Basten JA at [5] stated:
“… the trial judge received less assistance than he might have by way of diagnoses of the applicant’s current psychological condition. The fact that she may have been vulnerable to psychological deterioration before the attack would not preclude a relevant causal link between the attack and her current condition; the ‘eggshell skull’ principle may encompass a vulnerable psyche. That in turn may require discounting of damages to take account of the possibility that the applicant would have suffered psychological deterioration independently of the tortious conduct at some future time and in any event: see Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 and Civil Liability Act 2002 (NSW), s 13.”
[3] Mason v Demasi [2009] NSWCA 227.
Whilst I have concluded that [CAC] had a pre-existing generalised anxiety disorder making her vulnerable to further psychological deterioration I find that the accident caused the claimant to suffer a post-traumatic stress disorder and/or a major depressive disorder.

THE CLAIMANT’S CAPACITY FOR WORK

The insurer notes that Mr Tingle was of the view the claimant was fit for work 16 hours per week. This was consistent with the opinion of Dr Rastogi at the time of her second report and whilst she resiled from that opinion in her report dated 15 January 2024 the insurer argues she does not explain why she changed her opinion.
Similarly in his report dated 21 October 2021 Dr Bodel considered the claimant could continue working indefinitely doing her part time laboratory work and in his report dated
31 May 2023 he opined she had the capacity to return to work as a technical officer in a laboratory situation when her physical condition has stabilised and her social circumstance allows. In his report dated 25 May 2024 Dr Bodel reported [CAC] was managing her technical officer work in pathology but with ongoing pain. He reported the following complaints:
·        pain and stiffness in neck and both shoulders;
·        head down posture or use of the arms overhead can aggravate the pain;
·        she wakes from sleep if she rolls on either shoulder, but mainly the right;
·        lower back pain aggravated by prolonged sitting or bending;
·        knee pain improved but not completely resolved, and
·        difficulty with kneeling, squatting and on stairs.

Dr Bodel subsequently provided a supplementary report dated 22 June 2024 having been advised that [CAC] commenced maternity leave in January 2022 and had not returned to work. He noted the claimant’s statement dated 29 May 2024 largely dealt with her psychological disturbance with minimal reference to her physical injuries. Whilst Dr Bodel concluded the claimant’s prospects of return to work appeared to be poor the only cogent opinion as to the impact of the physical injury was his assertion that her ability to compete in the open labour marketplace for jobs was affected due to her reduced physical capacity and ongoing pain and restriction.
I do not accept the insurer’s submissions that the claimant’s decision not to return to work on 5 August 2022 was not causally related to the accident but was because it was difficult for her to cope with her three children and because it was too far to drive. Prior to ceasing work the claimant had displayed a good work ethic and it seems was motivated to achieve noting in June 2021 she scored excellent assessment results. The records from her employer support her assertion that she would have sought further training with a view to promotion. I accept the explanation from [CAC] that her mother-in-law was available to assist and uninjured she would have returned to work.
The insurer submitted that it is extraordinary that no one offered [CAC] specialised treatment for her fear of driving. Dr Mason identified the claimant’s treatment as inadequate and the insurer submits with the benefit of targeted treatment the claimant’s fear of driving may not be long lasting. Mr Ghabar submitted the question of appropriate treatment was outside the control of the claimant as it was a matter for the treating doctor and, having regard to its statutory obligations, for the insurer to recommend treatment.
Having regard to the opinions of Ms Harinath, Dr Rastogi and Dr Mason I am satisfied that there was a significant deterioration in the claimant’s psychological condition over time, in particular, after January 2022 and that her incapacity for work since 5 August 2022, when she was due to return to work, has been due to the injury caused by the accident.
I am satisfied that since 5 August 2022 the claimant has been totally unfit for work. I find it is the psychological injury which incapacitates the claimant for work although I accept that the psychological overlay has undoubtedly worsened her perception of her physical impairment.

THE ASSESSMENT OF DAMAGES

Non-economic loss

Section 1.4 of the MAI Act defines non-economic loss as including pain and suffering, loss of amenity of life, loss of expectation of life and disfigurement. The current maximum payable for non-economic loss is $654,000.
The claimant submits an appropriate allowance for non-economic loss is $450,000 on the basis the accident has had a life changing effect on the claimant. The insurer submits, I should allow $150,000 where the claimant had a pre-accident history of psychological and physical conditions and where it is alleged her failure to return to work on 5 August 2022 was because it was difficult for her to cope with her three children and it was too far to drive. I have addressed those submissions above.
The claimant was at the time of the accident a Technical Officer who scored excellent results in her performance assessment in June 2021 and who hoped to return to work on a full time basis at a future date. The accident has not only disadvantaged the claimant in that she has missed out on promotional opportunities but she has been since 5 August 2022 totally unfit for employment. The claimant’s prognosis for return to future employment is grim.
[CAC] complains of continued pain in her right shoulder, knees, neck and lower back which is aggravated by sitting, bending, kneeling, squatting, twisting or lifting and which makes it difficult for her to undertake household tasks like sweeping, mopping, vacuuming and gardening. As of 14 November 2022 Ms Gomez, exercise physiologist reported a severe deterioration in functional capacity. There is no suggestion that deterioration has ameliorated since then.
More significant are the psychological symptoms. [CAC] reports consistent fear and anxiety whilst travelling in a vehicle and only drives when necessary and only in her local area. She does not sleep well and continues to experience nightmares and constant fear of her family being killed in a motor vehicle accident. The clinical notes of Ms Harinath described a woman who is highly anxious and emotional, confused, angry, paranoid about dying, irritable, anxious and depressed and socially reclusive. She has experienced weight loss and iron deficiency due to skipping meals, and her relationship with her husband, children and other family members have become strained.
She no longer likes going out, home is where she feels safe and she has withdrawn from friends and family. Indeed, Dr Mason reported she has behaved in an extremely aggressive and abusive manner towards her husband, mother-in-law and children. He noted whilst she felt guilt over her behaviour she seemed unable to change it.
Since July 2023 [CAC] has experienced panic attacks causing rapid heart rate, shortness of breath, chest pains and sweating for which she has now attended hospital on three occasions.
On 23 March 2024 Ms Harinath reported [CAC] was extremely stressed and anxious about her health but did not have the capacity to implement positive changes. Noting that [CAC] has been under the care of psychiatrist Dr Wahaib since June 2023 without evidence of significant improvement it is difficult to be confident of any significant improvement in the claimant’s condition.
In assessing non-economic loss, I note the claimant was 36 years of age at the date of accident, she is now 40 years of age and has a life expectancy of 46 years. On the evidence before me I find her prognosis for improvement is poor. The accident has had a catastrophic effect on the life of [CAC] in relation to her role as a mother, wife, friend and in her employment as a technical officer.
I consider an appropriate award for non-economic loss to be $450,000.

Past economic loss

The claimant had been in paid employment since 2013 and whilst she had two earlier periods of maternity leave had worked full time until she returned to work after the birth of her second child on 7 July 2019.
At the time of the accident the claimant was working two days a week as a Technical Officer earning the agreed rate of $500 net per week. She ceased work in January 2022 when she commenced maternity leave pending the birth of her third child.
The claimant asserts it was her intention to return to full time work on 5 August 2022 on the basis her two elder children would have been in school, her youngest child would have been in daycare and her mother-in-law was available to help with the children.
A buffer of $10,000 is claimed for the period between the accident on 5 November 2020 and January 2022 when the claimant ceased work on the basis she had intermittent periods of time off work. However, there is no evidence of these absences from work and presumably the claimant may have been entitled to paid sick leave. I do not propose to make any allowance for this period.
No claim for past economic loss is made for the period January 2022 to 5 August 2022 when the claimant was on maternity leave and would not have worked in paid employment in any event.
A claim is made for economic loss from 5 August 2022 on the basis the claimant has been unfit for work. The claim is made on the basis the claimant would have returned to work on a full time basis earning the sum of $1,250 net per week.
The insurer submits the claimant was not totally incapacitated for work and disputes the assertion [CAC] would have returned to work on a full time basis.
The insurer notes that Mr Tingle was of the view the claimant was fit for work 16 hours per week. This was consistent with the opinion of Dr Rastogi at the time of her second report and whilst she resiled from that opinion in her report dated 15 January 2024 the insurer argues she does not explain why she changed her opinion.
However, I have already indicated I accept the claimant has been totally unfit for employment since 5 August 2022 given her serious psychological illness.
What is in dispute is whether [CAC] would have returned to work on a full time basis as of 5 August 2022.
Whilst there is no issue about the claimant’s credibility it does not mean that her evidence is reliable where her recollection may have been “altered by unconscious bias or wishful thinking…” as explained by Lord Pearce in Onassis v Calageropoulis v Vergottis.[4] Even though [CAC] now asserts she intended to return to full time work as of 5 August 2022 I prefer the earlier expression of her intentions where it was suggested she would have initially returned to full time work increasing her hours over time.
[4] Onassis v Calageropoulis v Vergottis [1968] 2 Lloyds Rep 403.
In his report dated 1 December 2022 Mr Tingle reported [CAC] “had planned to return to her role of Technical Officer after about 6 months of maternity leave, on a part-time basis and to increase her hours over time to full-time or near full-time”.
Having regard to that history and the claim initially particularised in submissions dated
3 February 2023 I find that the claimant would have returned to work on a part time basis working on average two days per week for the next two and a half years until after her youngest child commenced school.
Accordingly, I propose to allow past economic loss from 5 August 2022 to date (115 weeks) at $500 net per week in the total sum of $57,500.
I assess damages for past loss of superannuation benefits calculated at 11.5% of the total net wage loss in the sum of $6,612.50.

Future economic loss

In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in her most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission[5]and Husher v Husher,[6] the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in her earning capacity and, if so, whether that loss or diminution will result in economic loss.
[5] Medlin v State Government Insurance Commission (1995) 185 CLR.
[6] Husher v Husher (1999) 197 CLR 138.
I am satisfied the accident has caused a change in the claimant’s most likely future circumstances. I have already indicated I am satisfied, uninjured, the claimant would have continued to work part time until shortly before her youngest child commenced school and thereafter returned to full time work. I propose to assess damages on the basis the claimant would have continued to work part time for the next three years before increasing to full time hours.
I find due to the injuries caused by the accident the claimant is currently unfit for work.
On 29 November 2022 Mr Tingle reported the average technical officer salary in Australia was $80,504. This is in the range of the sum claimed of $1,250 net per week. Accordingly, I propose to calculate future wage loss for any period of full time employment on the basis the claimant had the capacity to earn $1,250 net per week uninjured.
The question is whether the claimant has any residual earning capacity.
The insurer referred to the decision of the Court of Appeal in White v Benjamin[7] where the court held the respondent bore no onus of establishing the appellant’s residual earning capacity or the availability of appropriate work. Basten JA stated at [50]:
“An assessment of past economic loss where there is residual earning capacity which the plaintiff may not have exploited to the full, involves a counterfactual hypotheseis to be addressed in the manner described in Malec v JC Hutton Pty Ltd [1990] HCA20, 169 CLR 638.”
[7] White v Benjamin [2015] NSWCA 75.
Dr Mason considered the prognosis potentially catastrophic without treatment. However, he considered [CAC] had not reached maximum medical improvement and would not do so without treatment. Therefore, he did not provide a prognosis.
However, having discounted the opinions of Dr Keller and Dr Baron Levi there is nothing in the evidence to suggest the likelihood of any significant improvement. Ms Harinath stated even though [CAC] was anxious about her health she did not believe she had the capacity to implement positive changes. Dr Mason reported the claimant was delusional and concerned her community would come to know about her condition. She had isolated herself from family and friends, including her parents. By 8 June 2024 Ms Harinath reported the claimant was having panic attacks several times a day, although by 5 July 2024 they had reduced to one once a day. However, the claimant’s symptoms such as a sense of impending doom, ongoing nightmares, flashbacks, anxiety, insomnia and anxiety remained unchanged, notwithstanding it is nearly four years since the accident and she has now been under the care of Dr Wahaib since June 2023.
I find the claimant has no residual earning capacity and is unlikely to return to employment.
Having regard to my findings about the claimant’s future intentions in respect of her return to work I propose to assess damages on the basis uninjured the claimant would have continued to work part time for the next two and a half years and thereafter on the basis of total incapacity until retirement age.
However, in assessing damage for economic loss I propose to increase the discount for vicissitudes to 20% on the basis [CAC] may have developed a serious psychological illness independently of the accident having regard to her pre-existing generalised anxiety disorder and having regard to the lengthy period until retirement and the remote possibility of a return to work.
Accordingly, I assess damages for future economic loss as follows:
(a) For the period until about April 2027 calculated at $500 net per week x 122.5 (multiplier for 2.5 years on 5% tables) less 20% for vicissitudes.
$500 x 122.5 x 80% = $49,000.
(b) For the period from April 2027 calculated at $1,250 net per week until retirement at age 67 years (multiplier for 24.5 years on 5% tables 745.7) deferred for 2.5 years (multiplier for 2.5 years on the 5% deferred tables 0.885) less 20% for vicissitudes.
$1,250 x 745.7 x 0.885 x 80% = $659,944.50.
Accordingly, I assess damages for future loss of earning capacity in the total sum of $708,944.50.
I assess damages for future loss of superannuation benefits calculated at 14.60% of the net future wage loss over the next 27 years in the sum of $103,505.90.

ASSESSMENT OF DAMAGES SUMMARY

I assess the claim as follows on the findings set out above:
Non-economic loss  $450,000
Past loss of earnings (including superannuation)  $64,112.50
Future loss of earnings (including superannuation)  $812,450.40
TOTAL DAMAGES ASSESSED  $1,326,562.90

COSTS AND DISBURSEMENTS

I refer to the claimant’s schedule of costs and disbursements. The insurer had no objection to the disbursements as claimed.
Accordingly, I assess the claimant’s costs and disbursements in the sum of $97,442.16 in accordance with the attached Damages and Costs Calculator.

DE-IDENTIFICATION

I direct this decision be de-identified in accordance with rule 132 of the Personal Injury Commission Rules 2021 having regard to the safety, health and wellbeing of the claimant.

[2024] NSWPIC 574

16 October 2024