Chabior v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chabior v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 517
CLAIMANT:	Allan Chabior
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	David Ford
DATE OF DECISION:	18 September 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute; amount of damages to be paid to the claimant under section 7.36(3) and (4); claimant was a driver of a motor vehicle involved in a collision with the insured vehicle; insurer admitted liability and no allegation of contributory negligence; claimant suffered multiple soft tissue injuries and psychological injuries being post-traumatic stress disorder and major depressive disorder; whole person impairment assessed at 24%; claimant was unemployed at the time of the accident but looking for work; claim for non-economic loss and past and future economic loss; Held – claimant is entitled to damages for non-economic loss and past and future economic loss.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of claim for damages made in accordance with s 7.36 of the Act. 1. On the issue of liability for the claim the NRMA’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. The amount of damages assessed in respect of this claim is $525,000. 3. The amount of the claimant’s costs taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 are the regulated costs. 4. Attached to this certificate are reasons for my assessment.

STATEMENT OF REASONS

INTRODUCTION

On 3 July 2019, at approximately 3.30pm, Alan Chabior (claimant) was driving his motor vehicle along Merrylands Road at Merrylands West in the curb side lane. It then transferred the motor vehicle being driven by the insured driver, which was travelling in the same direction in the adjacent lane, attempted to crossover into the curb side lane and collided with the claimant’s vehicle. The impact caused the claimant’s vehicle to swerve and then collide with the curb. The claimant attempted to control his vehicle, but a second impact occurred, when the insured vehicle again collided with the driver's side of the claimant’s vehicle. Police attended the scene of the accident.
After the accident the claimant did not attend hospital but went home by taxi and states he felt dizzy, nauseous and disorientated. It is submitted he complained of increasing pain in his neck, head, mid back, low back, both shoulders down his left arm and into his fingers. He also noticed his vision had been affected, as it was blurry, and he experienced double vision. The following day he attended Barbara Street Medical Centre, and he was advised by the doctor there to attend hospital. He attended Bankstown Hospital on 4 July 2019, where he underwent assessments and imaging tests were carried out. He was discharged later that day. The claimant has provided detailed particulars of his injuries and disabilities commencing on page 5 of his statement dated 5 July 2024.
Following the accident, he came under the care of his treating practitioners at the Kenyon Street Medical Centre. At the medical centre, he underwent physiotherapy, hydrotherapy, electrotherapy, heat therapy and massage. Because of his ongoing headaches, dizziness double vision and balance issues and radiating pains and related issues, he was referred to Dr Paul Teychenne, neurologist and Dr Clement, ophthalmologist. He was also referred to Dr Manohar, pain physician. He was born in Australia in April 1988, but moved to Poland with his family when he was a child. He ultimately returned to Australia in November 2013. Between August 2015 in November 2017, he commenced and completed a diploma in Conservation and Land Management at Tocal College in Queensland. He successfully completed this course, and whilst he was studying, he did perform landscaping and lawn mowing work on a casual basis. After obtaining these qualifications, he commenced looking for work on a full-time basis as an Environmental Ranger.
His quest for employment was interrupted as his wife became ill and was required to undergo a range of treatments, including multiple surgeries. This required him to care for his wife and children during most of 2018.
His wife's treatment was ultimately successful, and she obtained a retail position in a clothing store. He then recommenced his efforts to seek employment and applied for a number of junior environmental ranger roles which included an application for full time environmental position with the Parramatta Council. He was unsuccessful in securing any of the positions for which he applied for prior to the accident.
It is submitted but for the accident the claimant would have obtained full time employment as a junior environmental ranger or similar full-time work and would have performed that work without restriction up until the present time whilst pursuing promotions and career advancement opportunities to management level.
It is submitted because of the injuries and ongoing disabilities sustained by him in the subject accident, he has not been able to engage in either full time or part time employment since 3 July 2019. He is presently 36 years of age.
The Medical Service by virtue of certificate of Medical Assessor Alexey Sidorov dated 26 March 2023 determined his whole person impairment in respective of psychological injuries was 24% and accordingly he is entitled to damages for non-economic loss.
The insurer wholly admitted liability by letter dated 12 November 2021. Accordingly, the claim comes before me solely to assess damages.

Outline issues in dispute.

The following issues have arisen in this matter:
(a)    non-economic loss.
(b)    past economic loss.
(c)    future economic loss;
(d)    past superannuation, and
(e)    future superannuation.
The main issues requiring my determination are as follows:
(a)    what is the entitlement to damages for non-economic loss.
(b)    to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life, and
(c)    what is the entitlement to damages which flow from the findings on the above issues.

Documents considered.

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions made by the claimant.

At the assessment conference, the claimant stated he had pain in his left wrist every day. He has nightmares every night and has problems with his sleep. At my request, his senior counsel referred him to paragraph 65 of his statement dated 5 July 2024, in which he has listed his various medications which he relies upon daily. He confirmed he takes the following medications.
(a)    Panadeine forte;
(b)    Lexapro;
(c)    Diamox;
(d)    Endep;
(e)    Celebrex;
(f)    Circadin;
(g)    Somac;
(h)    Chlorsig (eye ointment);
(i)    Palexia;
(j)    Melatonin, and
(k)    Mitrazipine.
In his statement commencing at paragraphs 46 and 47, he provides details regarding the injuries he is alleged to have suffered in the subject accident, and at paragraph 48 he lists a multitude of continuing disabilities from which he now suffers. The statement is quite detailed and provides the details of his post-accident treatment.
He also stated at the conference, his vision remains the same, in that he cannot drive a car because of his double vision and his blurred vision. he stated, “everything moves left to right that blurred.” He stated he could not drive or work now because of his vision. He also stated he now had continual pain in both shoulders.
I refer to the statement of the claimant’s wife, Sara Chabior, dated 5 July 2024, and I note the following paragraphs:
“22. He spends a lot of time sleeping and is heavily medicated. That medication makes him drowsy.
23.    Alan moves very slowly and walks with a different posture and with different movements compared to how he walked and moved before the accident
33.    He sleeps irregular hours and eats irregularly, often having his lunch late in the afternoon when he has woken up. I have to encourage him to shower, and I often have to help when he is in pain as he continues to complain of pain in his neck and shoulders, particularly in his left shoulder and in his hands.
34.    I have no idea what the future holds for Alan, but it does not look positive to me”.
The solicitor for the claimant arranged for him to be examined on a medico-legal basis by Dr Bisht and I refer to his report dated 3 December 2021. On page 2 of his report, he states the following:
“He realised later that he had also sustained injuries to the mid back, lower back, both shoulders, wrist, hands, fingers. He started to have difficulty with eyesight impaired vision. Allan described that when he had the accident, he feared that he was going to die. Allan has not fully recovered from his physical injuries, till date, despite pain medications and physiotherapy. He told me ‘I have dizziness and sometimes I have double vision. I have pain from the neck to the shoulder. pain in my back. numbness in my hands and legs’
He is unable to walk stand or sit for more than a few minutes. He has had a variety of treatments including physiotherapy and pain medications. Allan has not contributed to housework or shopping duties like before since the subject accident as a result of his physical injuries and relies upon his wife to perform all of these tasks.
From the day of the accident, Allan started to experience clinically significant psychological symptoms. He started to constantly ruminate about the impact of the injuries on his life. At the same time, he started to have frequently recollections of the accident itself. He became hyper vigilant about having an accident again and started to feel very anxious whilst driving or ride in any vehicle. He would also avoid going to the place where the accident occurred and would also avoid talking about the accident.”
On page 5 of his report Dr Bisht stated the claimant was keen to seek treatment. I note the following under the heading “Mental State Examination”:
“The rapport was good. His eye contact was normal, and his speech was of normal form prosody comprehension and grammatical expression. He described his mood as ‘anxious sad’ his affect was of anxious quality for part of the interview. His range and intensity of affect were restricted and mood congruent. His affect was appropriate to the content of the interview. His thought process was relevant to the process of the interview with no disturbances in thought connections. He tended to focus on themes of hopelessness about the future. He strongly denied suicidal, homicidal or self-harm ideations or plans. There were no perceptual disturbances in any modalities. Cognitively, he able to provide reasonable detailed answers to my questions without prompting, although there was some circumstantiality.
His short-term memory was somewhat impaired. Long term memory was somewhat impaired His abstract thinking was not impaired. He had reasonable insight into his illness and the need for treatment. His judgement was not impaired as evidenced by him not taking unwarranted risk with his own and others’ safety, and by making good choices regarding his psychiatric treatment, family, and finances.”
Dr Bisht diagnosed the claimant was suffering from a major depressive disorder and a post-traumatic stress disorder. He was further of the opinion; the claimant had no capacity for work since the subject accident.
The solicitor for the claimant also arranged for him to be examined on a medico-legal basis by Dr James Bodel, orthopaedic surgeon, and I refer to his report dated 9 May 2023. Dr Bodel notes the current complaints on page 3 of this report, and I note the following on page 4 of this report:
“The claimant reports severe difficulty and inability to perform various activities, including opening a tight jar, doing heavy household chores, carrying a shopping bag or briefcase, washing his back, using a knife to cut food and participating in recreational activities. He also reports that his arm, shoulder, or hand problem interferes with his normal social activities with family and friends. Additionally, he has pain symptoms tingling in the left arm and has difficulty sleeping.”
Dr Bodel reviews various imaging reports and on page 9 of his report, I note the following:
“The diagnosis is a soft tissue whiplash associated injury in the cervical spine probable rotator cuff pathology in the left shoulder and bursitis in the region of the right shoulder.A soft tissue injury in the region of the left wrist and probable damage to the TFCC in the region of the left wrist and hand and a laceration in the region of the right thumb. He has symmetry of back movement with a musculoligamentous strain in that region, also he has no residual sign of a symmetry of movement or guarding in the thoracic spine.
From the injury to the neck, back, shoulders and legs, his prognosis remains guarded. It is 4 years since the injury and I am surprised that he has not made any progress at all, and if anything, he has become worse in the musculoskeletal areas.
He has had conservative treatment. He should be under the care of a pain clinic. He should be under the care of his psychiatrist and psychologist as is the case and from the orthopaedic point of view he needs to be encouraged to be positive and active and to undertake a self-directed exercise based programme assisted by physiotherapy, hydrotherapy and an exercise physiologist All of the matters have been tried without success and I am uncertain as to the reason why that this is the case”.
In summary Dr Bodel states on page 11 of his report:
“I do not anticipate deterioration and physical injury in this circumstance, to the contrary further physical improvement is expected with encouragement to exercise”.
He was also assessed by Dr Horace Ting, and I refer to his report 27 February 2024. Dr Ting is an occupational therapist, vocational assessor. He has provided a comprehensive report and has reviewed medical reports, clinical records, and imaging reports, which he lists in detail on pages 1 and 2 of his report. In this report, he provides summaries of the various documentation provided to him. I note on page 9 of his report, he states the following under the heading “Physical Capacity Evaluation”:
“Mr Chabior took some medications administered by his wife before attending the assessment. He and his wife caught an Uber to Parramatta. Regarding his ability to drive and travel, he has not been driven a vehicle since the accident due to his visual problems physical restrictions and fear of accidents.
He considers his pain condition on the day of the assessment as typical. On the night before the assessment, he retired to bed between 10 pm and 11pm only to awaken after 2 or 3 hours. He describes enduring flashbacks, especially of the crash, which disrupt his sleep most nights. This morning his wife assisted him in getting out of bed. Prior to the injury, he has been a good sleeper and did not have any sleeping problems.”
I note the results of the functional testing performed by Dr Ting on page 11 of his report. Dr Ting found the findings from the physical examination were consistent with the functional assessment.

Submissions made by the insurer.

At the assessment conference, counsel for the insurer questioned the claimant regarding his complaints of pain with regards to his left shoulder. In response, the claimant stated he now had pain in both shoulders and further stated, this now prevented him from working as a landscaper. Furthermore, he also stated his restriction of movement in both shoulders meant his wife had to assist him in toileting.
Counsel referred to the clinical records of Bankstown Hospital dated 4 July 2019 and on page 2 of the clinical records, there is no mention of injury to either shoulder as a consequence of the accident. The claimant was also questioned in relation to the clinical records of Barbara Street Medical Centre and the injury recorded on page 12 of the secondary bundle, in which he has complained of pain in both knees for the past 17 years. It is recorded and X-ray showed chrondmalacia patella. Also, an MRI scan and a CT scan revealed pre-existing issues regarding both knees, however, the claimant replied when questioned, that his knee pain never stopped him from working.
It was also submitted by counsel for the insurer Dr Horace Ting did not test for malingering when he examined the claimant.
The solicitor for the insurer also arranged for him to be examined on a medico legal basis by Associate Professor Robert Kaplan, psychiatrist and I refer to his reports dated 23 February and 2 November 2021. In his first report, Dr Kaplan records the following on page 4 of his report under the heading “Examination”:
“From the start the presentation was unusual. Mr Chabior walked in with a hunched posture keeping his head down, making no eye contact and speaking in a mumble. His answers were monosyllabic. He was put to him that the interview could not progress unless he could respond adequately to questions. After which, he spoke loud but did not change his posture or attitude. On this basis it was difficult to get a detailed history, which had to be supplemented by information from the documents. His mood was difficult to assess possibly anxious or withdrawn, but no other conclusions could be made.”
On Page 6 of his report under the heading “Diagnosis” Dr Kaplan states as follows:
“It is not possible to make a diagnosis in view of his behaviour at interview and the lack of information such as his medical file. Possible diagnosis includes post-concussion disorder, social phobia, schizoid disorder, or embellishment / malingering…”
In relation to the claimant’s ability to return work Dr Kaplan was of the opinion no comment could be made until a diagnosis is made, and on the presentation of the claimant at the examination, Dr Kaplan stated it would appear he is unfit to work.
In his second report, Dr Kaplan states the following on page 2:
“The medical notes indicate he remains symptomatic and had not returned to work. When I saw Mr Chabior possible diagnosis included post-concussion disorder, social phobia, post-concussion disorder or schizoid disorder. The additional information leaves the differential diagnosis as post-concussion disorder and possible embellishment, malingering. PTSD is excluded.”
The claimant was also examined at the request of the insurer by Dr Frank Machart orthopaedic surgeon, and I refer to his reports stated 22 March 2021 and 21 June 2024. In his first report he states the following under the heading opinion on page 3:
“DIAGNOSIS
There is an overwhelming element of psychological issues which substantially clouds the physical pathology. I could not rely on any of the clinical symptoms or signs displayed today because none of them were compatible with the pathology of injury specifically the grossly diminished movement in separate areas of the spine, inability to put a shirt on not consistent with early examination at hospital and with the description of the MVA. Objective definition is important in making assessment. It may be of value to see damage to the cars involved in the MVA.
With the information before me, particularly the objectively defined pathology on investigations, I did not see evidence of substantial or structural trauma beyond the head injury, which is outside the area of my specialty. to comment on. There was a laceration to the dorsum of the thumb which had healed. I did not see evidence of substantial long-lasting or structural injury to the cervical spine, lumbar spine, left wrist and right thumb. The impact of the injury is now healed.”

On page 6 of his report Dr Machart opines the following:
“If he was working at the time of the MVA, then I would have classified him as unfit for work for one week and unfit for physical work for six months. This assessment is based on the objectively defined physical injuries which were minor or none. I did not see reasons why he could not work in any employment beyond that.”
In his second report, on page 3, Dr Machart states as follows:
“I then established the diagnosis that the overwhelming element of the presentation were psychological issues which clouded the physical pathology I was unable to rely on self-reporting of symptoms, and the subsequent subjectivity displayed clinical signs because such were not compatible with the pathology of injury specifically then commenting on grossly diminished movement in separate areas of the spine inability to put a shirt on, not corroborated by substantial pathology when examining documents from hospital immediately after the MVA.
Objective evidence was important. I concluded that there was no diagnosable, substantial, or structural pathology and presence of substantial psychological issues.”
On page 6 of his report under the heading “Diagnosis” he states the following:
"… There is an overwhelming element of psychological issues which substantially clouds the physical pathology I could not rely on any of the clinical symptoms or signs displayed today because none of them were compatible with the pathology of injury specifically the grossly diminished movement in separate areas of the spine inability to put a shirt on not consistent with early examination at hospital and with the description of the MVA. Objective definition is important in making assessment. It may be of value to see damage to the cars involved in the MVA.”
On page 8 of his report Dr Machart opines the following:
“The complaints cannot be diagnosed in the form of substantial or structural damage to the body. The clinical presentation is entirely functional and suggests that there are substantial psychological problems that I cannot confirm in my area of specialty.
The prognosis for the soft tissue injuries was the resolution of symptoms within 2 or 3 months.”
The insurer also arranged for him to be examined by the Vocational Capacity Centre and I refer to their report dated 6 August 2024. I refer to the Executive Summary commencing on page 1 of their report as follows:
“Mr Chabior’s performance at this assessment was affected by self-limitation, and pain behaviour which ultimately affected the consistency of his presentation. Inconsistencies were apparent in the lack of reproducible abilities and limitations in between the various test items and in the lack of a physical basis for the extensive level of self-limitation displayed at this assessment. Ultimately there were no objective physical signs of restriction to support his displayed performance.
Based on the abilities he was willing to demonstrate at this assessment Mr Chabior cannot be considered as a viable candidate for employment; his overall presentation not allowing him to be considered as an attractive prospect for any employer. His movement is lethargic with awkward movement patterns displayed. His manner is aloof, and his speech is at times inaudible. These factors do not have a muscular skeletal basis but ultimately, they would not recommend him to any employer.
On the basis of the clinical assessment findings alone, Mr Chabior is considered capable of undertaking at least sedentary and semi sedentary work; his ability to undertake light manual handling work could not be assessed due to his self-limited performance.
Again, from the clinical perspective, there is no basis on which you would limit Mr Chabior’s working hours into the future, but he has not worked since 2013 and is therefore likely to be deconditioned. Should he ever be motivated to return to the workforce, then a graduated return to work might be advisable to develop his physical endurance level more slowly. Certainly, from the physical perspective, but perhaps also from the psychological perspective”
I note the following on page 2 of the report under the heading vocational assessment conclusion:
“Based on the results of validity screening in the current assessment and the absence of alternative objective data, it is opined that there is a significant degree of malingering or exaggeration regarding psychological symptoms .Mr Chabior failed 3 separate validity measure screening tools; one specifically designed to measure faint memory(TOMM) and one designed to capture clusters of atypical symptomologies across 5 separate areas of psychological functioning (SIMS) and another assessing the interplay between pain behaviours and psychological symptomology (and how this may affect adherence or compliance to treatment)
In summary, repeated multiple failures of validity measures increase the likelihood of exaggeration or malingering across testing of symptomology. When considered with the physical evidence (see FCE of Inez Farag physiotherapist); it appears more likely than not that a significant degree of malingering occurs across physical and psychological symptom endorsement.”

Reports from the Medical Service

I refer to the Certificate and Reasons of Medical Assessor Ian Cameron dated 10 March 2023. I refer to Page 3 of his Reasons under the heading “Current Symptoms”:
“Mr Chabior said he was dizzy. He said he had pain in his left shoulder, neck, back and left wrist. He said he often felt cold. He has had a weight loss of about 10 kg. Mr Chabiorhas not returned to driving after the accident. His income is from job seeker. Mr Chabior reported having help with showering and dressing from his wife because without help, he took hours to complete these tasks.”
I note on page 4 of the Reasons, the medical centre noted the claimant had inconsistent movements at multiple body regions which the claimant said was due to variable pain from those body regions. Furthermore, on page 7 of his Reasons, the Medical Assessor states as follows:
“There is no evidence that Mister Chabior sustained a traumatic brain injury. The brain imaging abnormalities are not related to the motor vehicle crash Mr Chabior also appears to have glaucoma which is not related to the motor vehicle crash. Mr Chabior is not able to cooperate adequately with the assessment and therefore physical assessment is very inconsistent. The results of cognitive assessment are not a reliable assessment of Mr Chabior’s actual cognitive function. Furthermore, the findings on physical examination of multiple body parts are not accurate and consistent”.
Furthermore, the Medical Assessor determined there is no evidence that an injury to either shoulder, the right hand or fingers occurred in the subject motor accident.
I refer to the Certificate and Reasons of Medical Assessor Alexey Siderov of dated 26 March 2023. He determined the claimant suffers from post-traumatic stress disorder and major depressive disorder as a consequence of the subject accident and assessed the whole person impairment at 24%. I note the following on page 5 of his Reasons under the heading “Current Functioning”:
“Mr Chabior stated that ‘my wife takes care of me’. He said that she cooks, and he eats a small amount due to a lack of appetite. He estimated that he showers every two weeks and brushes his teeth on occasion. He said that he requires prompting to shower. Brush his teeth and change his clothes by his wife. He does not drive. He does not leave home alone but rather only with his wife. he is unable to drive to due to his low energy levels as well as the anxiety that he experiences if he were to drive a motor vehicle. He only leaves home to go to his doctor, his general practitioner, psychologist, or psychiatrist”.
I also note the following further sentences in the same paragraph.
“He finds it generally difficult to think and concentrate on the task at hand. He does not currently work or study. He stated that he was looking for jobs at the time of the subject accident. He does not feel that he would be able to work or study currently, due to his lack of motivation energy and difficulty with concentrating”.
I refer to the Certificate and Reasons of Medical Assessor Ian Wechsler dated 16 November 2022. He was asked to assess the following injuries and he determined these injuries were not caused by the motor accident:
“Impaired vision, peripheral visual, field depression in both eyes, reduced peripheral vision reduction in visual field bilaterally, blurred vision, photophobia, prominence of the optic nerve sheaths bilaterally.
The Medical Assessor could find no evidence of any eye injuries related to the motor accent and he could find no ophthalmic managed manifestations of any injury to the brain which would have affected visual function.”
On page 5 of his Reasons, the Medical Assessor states there was no obvious ophthalmic cause for the reduced measured distance and near vision when he tested Mr Chabior. The Medical Assessor had grave doubts about the accuracy of the measured vision of Mr Chabior’s right and left distance visual acuity. It is his firm belief the claimant visual acuity in both eyes is much better than the measured 6/18 in both eyes.
On Page 6 of the Reasons, I note the following:
“The fact that Mir Chabior’s vision was documented to be a perfect 6 /6 in both eyes three6 weeks after the accident is in stark contrast to my examination findings. I pointed out this inconsistency to Mr Chabior and Mr Chabior said he could not explain this”.
I further note the following on page 8, under the heading, “Diagnosis and Reasons”:
“On my objective ophthalmic examination, I could find no ophthalmic anomaly. Every objective part of the ophthalmic examination was normal. The ocular coherent tomogram showed normal macular, optic nerve and ganglion cell morphology and the corneal pachymetry showed no evidence of corneal thinning or thickening.”
Also I note the following paragraph on page 9 of his Reasons:
“Trauma from the motor vehicle accident causes static rather than progressive pathology. Therefore, the visual fields I obtained is not a reflection of any problem of the eyes or visual pathway caused by the motor vehicle accident”.
I further note the following on page 10 of his Reasons:
“I can find no objective evidence of any of ophthalmic manifestations of a possible head injury. it is noteworthy that Dr Teychenne described Mr Chabior’s problem from the motor vehicle accident as a whiplash injury rather than a closed head injury. He could find no evidence of raised intercranial pressure or a neurological cause for Mr Chabior’s visual symptoms aside from migraine.
However, I would recommend a neurological opinion be sought in view of Mr Chabior’s multiple visual and neurological symptoms for which I (as a general ophthalmologist) cannot find an ophthalmic cause”.

REASONS

Non-economic loss

The claimant is entitled to damages for non-economic loss. The solicitor for the claimant submitted a sum of $400,000 for such damages, and in response, the insurer has submitted of $250,000 to be appropriate for non-economic loss. The claimant suffered both physical and psychological injuries in the accident. In relation to his physical injuries, I consider such injuries to be minor in nature, and in this regard, I prefer the opinion expressed by Dr Machart. On each occasion when examined by the various medico legal experts, both on behalf of his solicitors and on behalf of the insurer, I find he has sought to embellish his injuries and disabilities to the extent, that I find, he is malingering and intent upon exaggerating both his physical and psychological injuries.
At the assessment conference, he stated the pain and ongoing restriction of movement in both shoulders was so severe, it meant his wife had to assist him in toileting. Counsel for the insurer submitted Dr Horace Ting did not perform tests to ascertain whether the claimant was malingering. Having regard to his presentation before Dr Ting and the extent of his psychological complaints, I consider it would have been appropriate for Dr Ting to undertake tests for malingering to properly substantiate the findings in his report. The Vocational Capacity Centre report clearly found multiple failures of validity measures which increased the likelihood of exaggeration and malingering across of testing of symptomology. Furthermore, counsel for the insurer submitted, having regard to the plethora of both physical and psychological complaints made by the claimant, it would have been appropriate if a report from a psychiatrist was obtained on behalf of the claimant it to ascertain whether he was suffering from psychosomatic disorders.,
I do not accept the claimant has a disability regarding his vision and in this regard, I accept Medical Assessor Weschler findings referred to above. I note he recommended a neurological opinion be sought in view of the claimant’s multiple visual and neurological symptoms and I further note, such a report has yet to be obtained.
In summary I find the claimant has largely recovered from all the physical injuries, which he may have sustained in the subject accident. He does have a residual psychological injury in that he suffers from post-traumatic stress disorder and major depressive disorder, however, I also find he is seeking to embellish and exaggerate this psychological condition.
I therefore consider an appropriate allowance for non-economic loss, having regard to his age and his injuries and disabilities is the sum of $300,000.

Past loss of earnings

The solicitors for the claimant have submitted a sum $336,252 plus superannuation for past loss of earnings. I note the claimant was not employed at the date of the accident but was endeavouring to obtain full time employment as a junior environmental ranger or similar full-time work. I do not consider his physical injuries would have prevented him from obtaining either full time or part time employment for any lengthy period and in the circumstances, such physical injuries would have largely resolved, after a period of two years post-accident. In this regard, I accept the findings of Dr Machart and also to some extent, the findings of Dr Bodel in his report, especially having regard to his opinions expressed in paragraph 21 and 22 above.
The insurer submitted I should make an allowance of $25,000 for past loss of earnings and past superannuation by way of a buffer, I find his psychological injuries certainly would have impacted upon his ability to return to the workforce on either a full time or part time capacity and therefore I consider it appropriate to allow an amount for past loss of earnings by way of a buffer in the sum of $125,000 including an allowance for past superannuation.
I note the insurer has not made any statutory payments to the claimant in this matter.

Future loss of earnings

The solicitor for the claimant submitted an amount of $1,170,624 for future loss of earnings together with an amount proposed for loss of future superannuation. In the alternative, a buffer was sought for both future economic loss in future superannuation in the sum of $1,350,000. The solicitor for the insurer submitted I should allow an amount by way of a buffer of $100,000 including an allowance for superannuation.
I find the claimant can return to either full time or part time employment on a gradual basis and I do not accept his psychological injuries will prevent him from doing so. I find the most likely future circumstances for the claimant is he will suffer some diminution in his earning capacity for the future, but not for a lengthy period and therefore, in the circumstances, I consider it appropriate to allow the amount as proposed by the insurer for future loss of earnings, including an allowance for superannuation, by way of a buffer in the sum of $100,000.

Assessment of damages summary

Under sub-s 7.36 (1)(b) of the Motor Accident Injuries Act 2017 (MAI Act), I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
non-economic loss   $300,000
past loss of earnings   $125,000
future loss of earnings   $100,000
total of economic losses and non-economic loss $525,000
reduction for contributory negligence                    Nil
TOTAL DAMMAGES ASSESSED   $525,000.

Costs and disbursements

I assess the claimant's legal costs and disbursements in accordance with the MAI Act and the Motor Accident Injuries Regulation 2017 as scheduled fees and agreed disbursements.

CONCLUSION

On the issue of liability for the claim NRMA '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.
I specify the amount of damages for this claim as $525,000 which includes the statutory benefits paid by the insurer which total $nil.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, is assessed in accordance with the MAI Act as the scheduled costs and agreed disbursements.

LEGISLATION

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

[2024] NSWPIC 517

18 September 2024