Cherry v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cherry v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 142
CLAIMANT:	Tamara Plummer (nee Cherry)
INSURER:	Insurance Australia Limited t/as NRMA Insurance
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	10 April 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of claim for damages; liability admitted; claimant suffered physical and psychological injury as a result of accident; treatment included multiple surgeries; agreed claimant cannot return to pre-accident work; claimant entitled to damages for non-economic loss; past economic loss agreed; whether claimant had any residual earning capacity; Held – claimant has no practical earning capacity; non-economic loss damages awarded in the sum of $430,000; total damages assessed at $2,032,143.
DETERMINATIONS MADE:	CERTIFICATE 1. Liability for the claim is admitted. 2. In accordance with s 7.36 of the Motor Accident Injuries Act 2017, I assess the amount of damages for this claim as $2,032,143. 3. The insurer is to pay the claimant’s costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and Regulations. 4. Attached to this certificate are reasons for my assessment.

STATEMENT OF REASONS

BACKGROUND

Tamara Plummer (claimant) was injured in a motor accident at Blacktown on 27 May 2020 (accident). She subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). Liability for the claim was admitted on 11 May 2022.
The claimant has referred her claim to the Personal Injury Commission (Commission) for assessment of damages under Div 7.6 of the MAI Act. She seeks awards for non-economic loss, past economic loss and future economic loss.
It is agreed between the parties that:
(a)    as a result of the accident the claimant suffered injury to her cervical spine, lumbar spine, hips, and psychological injury;
(b)    as a result of the accident caused injury to her cervical spine the claimant underwent surgery at the hands of Dr Kam on 19 July 2021 (C5-6 anterior cervical discectomy and disc replacement) and 26 April 2023 (C6-7 anterior cervical discectomy and disc replacement);
(c)    as a result of the accident caused injury to her lumbar spine the claimant underwent surgery at the hands of Dr Kam on 8 December 2021 (left L5-S1 laminoforaminotomy and rhizolysis);
(d)    the degree of the claimant’s permanent impairment as a result of the injuries caused by the accident is greater than 10%;
(e)    the claimant is entitled to damages for non-economic loss;
(f)    the claimant has a loss of capacity to earn as a result of the accident caused injuries that is productive of financial loss;
(g)    the claimant is entitled to damages for past economic loss, and
(h)    the claimant is entitled to damages for future economic loss.
In addition to these matters, the parties agree that:
(a)    the claimant’s past economic loss is $296,866;
(b)    the claimant’s past loss of superannuation is $34,466, and
(c)
the s 4.5(1)(d) damages (Fox v Wood) amount to $55,686.
Other than the quantum of the award for non-economic loss, the critical matter in dispute between the parties is whether the claimant had any residual earning capacity, there being agreement that she has no capacity to return to her pre-accident work as a Registered Nurse.

ASSESSMENT CONFERENCE

The proceedings were listed for assessment on 20 March 2025. Mr Best, of counsel, appeared for the claimant and Mr Wilson, of counsel, appeared for the insurer.
The claimant gave evidence and was cross examined.
Following oral submissions, the claimant was given leave to rely on and file: her chronology; updated submissions, and net annual and weekly wage figures for a midwife and clinical nurse educator. Leave was given to the insurer to file a document that set out the net earnings of the four roles it submits the claimant could perform. The introduction of this material was necessary to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. Neither party objected to the other relying on this additional material.

EVIDENCE

The documentary evidence relied on by the parties for the purposes of the assessment was contained in a joint bundle. I have considered all that evidence.
As recorded earlier, the claimant gave evidence at the assessment. She became distressed during the course of her evidence and required a break. She stood on occasion.
I found the claimant to be an impressive witness. While the insurer argued that aspects of her evidence were unreliable, I am not satisfied that that is the case.
The claimant is a young woman who worked hard to achieve her goal of becoming a Registered Nurse. She drew a great deal of pride and satisfaction from her professional achievements and her work. She was clearly distressed that she can no longer work as a Registered Nurse.

INJURY FINDINGS

The claimant experienced neck, back, and hip symptoms shortly after the accident and has continued to experience symptoms since that time. Her reports of ongoing symptoms in these regions, including pain and radiating symptoms in her upper and lower limbs, together with her post-accident treatment are well documented. The evidence from her treating doctors and that of the medical experts qualified by the parties, except Dr Mitchell, support a finding that the claimant continues to suffer the effects of her injuries.
I find that as a result of the accident the claimant suffered injury to her:
(a)     cervical spine at C5/6 and C6/7 levels;
(b)     lumbar spine at L5/S1 level, and
(c)    hips.
I find that the surgery performed by Dr Kam on 19 July 2021 (neck), 8 December 2021 (back), and 26 April 2023 (neck) was reasonable and necessary treatment for her neck and back injuries, undertaken after non-surgical treatment failed to bring about a significant improvement in her symptoms.
In making these findings I have given significant weight to the opinion expressed by Dr New in his report of 20 March 2024; in addition to providing a medico-legal report at the request of her solicitors, Dr New treated the claimant after she was referred to him by Dr Aung in June 2020. These findings are also supported by the opinions of Dr Kam, Dr Bosanquet,

Dr Assem, Dr Dixon, and Dr Khong.
At the request of the insurer’s solicitors the claimant was assessed by Dr George, psychiatrist, on 26 September 2022. The doctor diagnosed a persistent depressive disorder that was caused by the accident. Dr Roberts, psychiatrist, assessed the claimant at the request of the insurer’s solicitor, in December 2024, and diagnosed chronic adjustment disorder with anxiety and depression.[1]The doctor thought that these conditions had been caused by the accident.
[1] The claimant did not object to the insurer relying on reports from two doctors of the same speciality, a matter that was expressly raised by the Commission with the parties at the assessment.
At the request of her solicitors, Dr Rastogi, psychiatrist, examined the claimant in November 2022 and July 2024. Because Dr Rastogi assessed the claimant on two occasions and had an opportunity to assess her in both 2022 and 2024, I give weight to the doctor’s opinion that the claimant suffers from persistent major depressive disorder as a result of the accident. Further, Dr Rastogi’s diagnosis is similar to that made by Dr George.
The claimant had a pre-accident psychiatric history, recorded by a number of doctors including Drs Rastogi and Roberts. She was questioned about this history in her oral evidence. I am not satisfied on the evidence before me that at the time of the accident the claimant was suffering from a psychological condition. She was not being treated, was not taking medication, and was working full time.
I find that as a result of the accident the claimant developed a persistent major depressive disorder.

LOSS OF CAPACITY

Claimant’s evidence

Between 2011 and 2015 the claimant worked in sales roles. In 2015 she commenced working as a Ward Clerk at Nepean Hospital. At the same time she studied at TAFE to become an Assistant in Nursing. In 2016, having completed the TAFE course, the claimant obtained employment as an Assistant in Nursing at Westmead Hospital. While working in this capacity she enrolled in a Bachelor in Nursing at the University of Western Sydney, completing that degree in 2017. She thereafter began working as a Registered Nurse at Westmead Hospital.
In February 2019 she commenced work as a Community Nurse with the Blacktown Local Health District. Her job involved driving between patient’s homes to provide them with outpatient treatment and management. In this capacity, she undertook a range of treatment, from palliative care, to assisting injured patients with wound management.
I accept the claimant’s evidence that her ultimate career goals were to also learn and practice in midwifery and then after a few years become a Nurse Educator. Her evidence, that I accept, is that the nurse educator role required more study, and that she was happy to do it having undertaken previous studies and work whilst balancing the raising of three children.
The claimant attempted to return to work approximately three weeks after the accident, undertaking suitable duties. This continued until April 2021 when she ceased. She has not returned to work since then. The claimant described in oral evidence being “shattered” when she received correspondence in June 2024 confirming that her employment had been terminated on medical grounds. As already recorded, it is agreed that the claimant cannot return to her pre-injury work as a nurse.

I accept the claimant’s evidence that she:
(a)    has significant ongoing pain in her neck and her back as a result of the accident, and that her back pain is the worse of the two;
(b)    experiences symptoms in both arms and fingers and her legs, and has weakness in grip with her left and right hands;
(c)    has difficulty sleeping as a result of pain;
(d)    can only walk around 50 meters at a time;
(e)    can only sit for 10 minutes before having to get up and move;
(f)    experiences restricted movement in her neck, and that her neck is painful when reading or writing and using a computer;
(g)    has difficulty driving due to neck pain;
(h)    struggles with overhead work;
(i)    feels anxious, experiences panic attacks and depression, and has problems with her memory;
(j)    has difficulty concentrating, and
(k)    experiences side effects from her medication, including “brain fog”.
In oral evidence the claimant confirmed that she is to see Dr Boesel to discuss the possibility of either a pain pump or spinal cord stimulator being implanted. She gave evidence about the ketamine and lignocaine infusion procedure she underwent in January 2024. As part of that treatment, she was required to cease her regime of pain medication the day she was admitted. Her evidence, that I accept, was that when she ceased the medication her pain increased “tenfold”, and that she did not benefit from the infusion “at all”. For that reason she left hospital after three days, as opposed to the five days that had been scheduled for the treatment. She then resumed taking her medication and has continued to do so. With respect to the effectiveness of the injections, I have given weight to the opinion expressed by Dr Boesel in his report dated 8 January 2024, to which I will come later in these reasons.
The claimant gave evidence that she stopped having physiotherapy because it was taking her two to three days to recover from a one hour session.
In oral evidence the claimant confirmed that her sleep was constantly interrupted, that the lack of sleep “catches up with [her] after a few days”, and that when she wakes in the morning she does not feel rested.

The claimant also gave evidence about the anxiety she experiences. She described suffering from “brain fog”. Her evidence was that she used this term to describe not being able to hold conversations without long pauses and struggling to find a word to fit into a simple sentence. She described it as being like she has “two heads” because she can’t speak properly and is “spaced out.” She said the brain fog was “horrible”. She described days when she could not get out of bed because of the medication, and said that because of the “brain fog” she can’t remember where she put the car keys.
The claimant was asked whether she could perform, either on a full-time or part-time basis, work as a telehealth nurse, Red Cross Blood Service Nurse, pathology collector, or medical receptionist. Her evidence was that she could not perform any of these roles, either full-time or part-time. When asked whether she was willing to try any of these jobs, her answer was “no”.

Medical evidence

Dr Aung, the claimant’s general practitioner (GP), reported on 2 May 2022. The doctor referred to the claimant’s injuries, her symptoms, treatment and medication, and daily functional limitations. He recorded that the claimant required assistance from her husband and teenage daughter to shower, dress, and don and doff shoes and socks. She required assistance with most household chores. The claimant was on a “variety of medications” for her pain and was easily fatigued. The doctor stated that the claimant “may be suitable for vocation in future as Telehealth/Triage Nurse”.
Dr Kam, the claimant’s treating Neurosurgeon, prepared a series of reports, most of which are addressed to Dr Aung. In a report dated 25 May 2022 the doctor referred to the claimant’s neck and back symptoms, the proposed further neck surgery, and the treatment of Dr Boesel. Dr Kam stated as follows: “[s]he is now running out of options and will struggle to be gainfully employed”. This report post-dated the first neck surgery and the back surgery but pre-dated the second neck surgery that was performed on 26 April 2023.
Dr Bosenquet, orthopaedic surgeon, reported to the insurer’s solicitor on 31 October 2022.

In the doctor’s opinion the claimant sustained soft tissue injury to her cervical spine causing damage to the C5/6 disc, for which she had a disc replacement, and injury to her lumbar spine causing “a disc problem at L5/S1 and the need for a foraminotomy”. In his opinion the surgical treatment had been reasonable and necessary. The doctor recorded the claimant “remains in pain and has been unable to return to work”.

In Dr Bosenquet’s opinion the claimant’s prognosis was poor; she had two major operations, still had significant pain, and had been unable to return to work. The doctor stated that “judging by her present condition”, she will not be able to return to work in the future.
Dr Assem, a rehabilitation specialist, reported to the claimant’s solicitor on 18 November 2022. In the doctor’s opinion the claimant sustained injury to her cervical and lumbar spine as a result of the accident. He thought her prognosis was guarded. She continued to experience neck discomfort and had intermittent radicular symptoms involving her left arm. She also experienced a high level of pain across the lower back, radiating to her hips. In the doctor’s opinion, the claimant will “most likely” continue to have ongoing symptoms and limitations in the foreseeable future. While her neck symptoms improved after surgery her lumber symptoms did not. Given the severity of her complaints, limitations, and reliance on narcotic analgesia for symptomatic relief, the doctor thought the claimant was unfit to work as a community nurse “at the present time”.
Dr Dixon, orthopaedic surgeon, reported to the claimant’s solicitors on 30 November 2022. The doctor diagnosed back and neck injuries as a result of the accident. He recorded that the claimant tried to return to work performing light duties but because she was taking strong analgesia which included Tramal (an opioid medication used for pain) and CBD oil, it was felt she was unsafe to drive so she ceased work in April 2021. In the doctor’s opinion the claimant had “no capacity to work as an RN at present.”
Dr Khong, neurosurgeon, reported on 20 July 2022. The doctor diagnosed musculoligamentous strain and an exacerbation of pre-existing degenerative changes in the cervical spine (likely at C5/6 and C6/7) as a result of the accident. He thought the claimant’s prognosis was poor. In his opinion the claimant had no capacity to work.
Dr New, orthopaedic surgeon, reported to the claimant’s solicitor on 20 March 2024. The doctor diagnosed C5/6 and C6/7 disc prolapse, which required anterior spinal surgery with replacement discs, and lumbar spondylosis with L5/S1 radiculopathy, which required surgical intervention, and bilateral sacroiliitis. In his opinion the claimant’s long term prognosis was poor “with her current presentation in relation to cervical and lumbar pain, radicular pain into her right arm and bilateral legs and sustained sacroiliitis pain.” She was “not capable of reprising her pre-injury employment as a Registered Nurse and will either have to be retrained or medically retired.”
Karen Stewart, a rehabilitation counsellor, undertook a vocational assessment of the claimant and reported to the claimant’s solicitors on 15 February 2024. The questions Ms Stewart was asked to address are recorded on the first page of her report. The report states the claimant was assessed in person.
Ms Stewart recorded details of the claimant’s injuries, her treatment, her functioning, and her education and training. Reference was made to a number of medical reports, including a medico-legal report of Dr Porteous dated 18 November 2021. That report is not included in the joint bundle and is not in evidence before me.
Ms Stewart’s report includes details of the claimant’s qualifications. It is recorded that the claimant has no issues reading, writing, speaking, or with comprehension. She was “accepted as presenting with no literacy difficulties”. The claimant confirmed that computer-use had been an inherent job demand of each position held throughout most of her career, including her most recent employment as a Registered Nurse. The claimant reported that she utilised a laptop in her role as a Community Nurse for entering file notes, reviewing test results and patient medical history, as appropriate. It was concluded that she is proficient in the use of email, internet, Microsoft Word, CERNER (a patient database utilised in her most recent employment) and that she can touch type with reasonable speed and accuracy.
The claimant’s employment history is set out on pages 8-10 of the report. Prior to her career in nursing, she worked in various customer service roles. Based on her vocational background, Ms Stewart determined that the claimant presented with a “transferable skills profile” relevant to communication, administration and clerical, computer use, frontline customer/client services, sales, medical and primary care skills. The transferable skills recorded on page 10 and 11 of the report have been considered.
Ms Stewart gave consideration to the vocational options likely to be viable for the claimant by reference to her education, training and experience, functional capacity, and labour market availability. The following are the vocational options Ms Stewart “identified as the least physically demanding occupations in consideration of [the claimants’] education, training and occupational experience”: telehealth nurse, Red Cross blood service nurse, pathology collector/phlebotomist, and medical receptionist.
Ms Stewart stated as follows with respect to these roles:
“[t]he current and future functional viability of these occupations cannot be confirmed from the medical information reviewed for this assessment. Further medical opinion would be required to determine their suitability for [the claimant] now or in the future.”
Ms Stewart’s report includes details of the remuneration, typical duties, and typical functional demands of each of the four roles she identified.

In response to the question: “What prospects do you believe our client has of obtaining employment on the open labour market having regard to her age, education, training, employment history and disabilities?”, Ms Stewart expressed the following opinion:
“…The skills and knowledge of Registered Nurses are utilised across a range of roles, some of which have substantially lower physical demands than a clinical hospital position, or similar. These include, but are not limited to, telehealth, health promotion, chronic disease management, immunisation and workplace health. [The claimant’s] current residual functional capacity cannot be confirmed from the background medical information provided, however, based on her self-reported symptoms, functional tolerances and impact of prescribed medication, functional improvements would need to be achieved in order to be competitive on the open labour market. Registered Nursing positions (even those with lower physical demand) typically have cognitive demands including ‘observation, evaluation, assessment, communication, interpersonal, organisational, problem solving and decision-making’ ... Nursing opportunities are available on both a part-time and full-time basis with some telehealth roles allowing work from home…”
Ms Stewart concluded her report by stating that in light of the claimant’s self-reported function and symptoms as well as her reliance on prescription medication, it is likely that she would require improvements in her capacity to enable successful job seeking and return to work.
In a further report dated 30 April 2024, Ms Stewart expressed the opinion that, based on the claimant’s track record of working and studying, and her “evidenced determination to become a Registered Nurse and self-described enjoyment of her work”, a range of career opportunities, progression and advancement were potentially available to the claimant, if not for the impact of her injuries.”
Dr Mitchell, occupational physician, assessed the claimant at the request of the insurer’s solicitors in October 2022 and June 2024. He prepared reports dated 24 November 2022 and 14 June 2024.
In the first of his reports, the doctor recorded a history of neck, lower back, and hip pain, together with “psychological issues” following the accident. He recorded a summary of the radiological investigations, the claimant’s treatment, and her employment history. The past medical history recorded by the doctor on page five of his report has been considered.
The doctor noted the claimant’s report that she experienced ongoing pain in her neck, symptoms in her left arm and hand, and low back pain with radiation down both legs. She told the doctor that her symptoms were aggravated by prolonged walking, sitting or standing, bending, “changing her position”, as well as all aspects of her activities of daily living. She described difficulty showering, washing, managing her hair and applying footwear. She reported being able to sit for 30 minutes, stand for between 15 and 30 minutes, walk for up to 300 metres, lift up to less than 5kg, and drive for up to 30 minutes. Prior to the accident she was physically active.
The doctor recorded that the claimant’s responses during physical examination were “inconsistent at times”. He stated as follows with respect to her prognosis:
“With no change reported now for more than 2 years it would appear likely that ongoing similar symptoms will continue to be described, although the level of symptoms and disabilities claimed to be a consequence appears excessive relative to the objective clinical and radiological evidence available.”
With respect to the claimant’s work capacity, the doctor expressed the opinion that:
“[she has] a current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions were available, she should be able to manage such work on a full-time basis:
•She should manage all physical activities below mid chest height and close to the body trunk, particularly if repeated or sustained in nature, to avoid aggravating her symptoms.
•It would be appropriate that frequent manual handling actions should be limited to 5 kg in force with respect to lifting, carrying, pushing and pulling actions undertaken.
•On an occasional basis, up to 10 kg should be possible in the manner described above.
•Fixed and awkward spinal postures should be avoided, including unsupported spinal bending and frequent twisting of the lower back.
•Frequent posture movement should take place throughout the day, alternating between standing, moving about and sitting down for at least short periods of time.
•Prolonged walking, particularly over uneven or sloping ground surfaces should be avoided, as should frequent step climbing, kneeling and crouching actions.”
Dr Mitchell stated that in a suitable duties role, where there would be no potential to aggravate any of the reported symptoms, the claimant had capacity to work “a normal 8 hour day, 5 days a week”.
It is clear that the doctor was provided with a number of medical reports that are not in evidence before me. Those reports include the reports referred to on pages 13–15 of Dr Mitchell’s report. Dr Mitchell observed that the examination findings of those doctors “indicate a significant variance in the findings between each doctor”. In Dr Mitchell’s opinion some of the inconsistent findings could be explained by the “voluntary self restraint” on the part of the claimant who, he said, demonstrated inconsistent responses during his assessment.
In the absence of any neurological impingement in the cervical spine there did not, in Dr Mitchell’s opinion, appear to have been any imperative to undertake the procedure at C5/6 in July 2021, which “did not materially change the reported symptoms in any event”. That treatment would therefore not, in his opinion, be considered to have been reasonable or necessary. For the same reasons, the left L5/S1 procedure in December 2021 did not appear to be reasonable or necessary.
In Dr Mitchell’s opinion, given that the radiological evidence did not show any significant underlying injury there may have been a period of two or three months of work incapacity following the accident, during which any soft tissue injuries sustained would have resolved and the claimant would have been able to resume her normal pre-injury duties again.
In his second report, Dr Mitchell repeated much of what was recorded in his first report in terms of the accident, the claimant’s injuries, symptoms, treatment, and work history. The claimant’s reported functional capacity with respect to walking and lifting had reduced. He thought the claimant’s responses during examination were “inconsistent at times, due to apparent voluntary self-restraint or guarding.” The doctor repeated what he said in his first report with respect to prognosis, and, other than his earlier recommendations that prolonged walking, particularly over uneven or sloping ground surfaces, should be avoided, as should frequent step climbing, kneeling and crouching actions, the doctor repeated what he said in his first report with respect to the claimant’s capacity for work. In the doctor’s opinion the claimant’s condition “should not materially change”, and “[s]he has the capacity to do far more than she claims to be able to, with care and self-pacing.”
Dr Mitchell agreed with Dr New that the claimant was not likely to return to her pre-injury duties. She could, however, manage suitable light work consistent with her education, training, and experience, which may require retraining.
The report records the following questions and answers in relation to Ms Stewart’s report:
“Comments on Claimant’s vocational assessment report
Ms Stewart in her report considered that the Claimant could return to sedentary work including but not limited to a telehealth nurse, Red Cross Blood Service nurse, pathology collector and medical receptionist and that she has an array of transferable skills. However, she considered that the Claimant has no current ability to do so because of her injuries and requires improvements before have some work capacity.
We seek your comments on the following in relation to Ms Stewart’s report:
(a)     Whether you consider Ms Stewart’s employment suggestions are suitable for the Claimant
The employment suggestions are suitable for [the claimant] and would not have any potential to aggravate her reported symptoms and underlying conditions.
(b)     Whether the Claimant’s current restrictions to her work capacity is due to her injuries.
The recommended posture and manual handling precautions are due to her underlying neck and lower back conditions.
(c)     Whether you agree with Ms Stewart’s reasoning behind her recommendations for the Claimant’s future work capacity and field of employment.
Telehealth Nurse
Red Cross Blood Service Nurse
Pathology Collector / Phlebotomist
Medical Receptionist
This question has been answered above in the affirmative.
(d)     Whether you agree with Ms Stewart’s reservations on the Claimant’s ability to return to being a full-time registered nurse in the future.
I would agree.
(e)     Any other comments you may wish to take with Ms Stewart’s report
No other comment appears relevant.”
Dr Mitchell went on to address treatment and the claimant’s need for domestic assistance.
In her report to the claimant’s solicitors dated 17 November 2022 Dr Rastogi stated that the claimant’s prognosis was guarded given chronic neuropathic pain, deconditioning, “vocational losses and entrenched depressive cognitions with inability to pursue her aspirations.” She was struggling with adaptation and pain was constantly interfering with her functioning. In the doctor’s opinion the claimant had a poor vocational prognosis; she was permanently unfit to work as a community nurse or in any capacity. The claimant’s vocational prognosis was limited; she may have capacity to work in a sedentary low key role “possibly in [the] near future” with ongoing treatment but needs vocational assessment. Her physical condition was also a barrier to her vocational rehabilitation. In a report of the same date that addressed the psychiatric impairment rating scale (PIRS), the doctor allocated a class 4 for adaptation for the following reasons:
“Severe impairment she has very reduced capacity to work in foreseeable future in low key sedentary role part time due to reduced pace and impaired concentration as well as severe pain.”
In a report dated 9 July 2024, Dr Rastogi expressed the opinion that as a result of accident caused persistent major depressive disorder with exacerbation the claimant was struggling with adaptation and had a poor prognosis. In the doctor’s opinion, the claimant remained totally incapacitated to work and cannot work in her area of expertise as a nurse due to combined impairment. The psychological barriers to work include poor motivation, depressive cognitions, poor stress coping, cognitive deficits and loss of confidence.
In his report to the insurer’s solicitors dated 13 October 2022 Dr George, psychiatrist, diagnosed a persistent depressive disorder. He thought the claimant’s prognosis was guarded, and that “there appears to have been impact on her earning capacity.” Her inability to work was “not necessarily due to any psychiatric restrictions”. He went on to say: “[i]t does appear that from [a] physical point of view, capacity for employment has been restricted. I would not pass comment on this as a psychiatrist.” In the doctor’s opinion the claimant’s psychiatric diagnosis of itself would not preclude either part-time or fulltime employment.
Dr Roberts saw the claimant on 16 December 2024 and reported on 9 January 2025. In the doctor’s opinion, as a result of the accident the claimant developed chronic adjustment disorder with anxiety and depression “which has been superimposed on pre-existing psychopathology.” He described the condition as a “secondary injury” arising from the accident. For this reason, the doctor “did not consider it is appropriate to undertake an assessment of permanent impairment”.
On page 10 of his report the doctor stated as follows:
“I[n] regard to alternative employment [the claimant] stated that it had been suggested that she could work as a pathology collector or alternatively teach nursing at TAFE or University.”
This was likely a reference to Ms Stewart’s recommendations, the opinion of Dr Mitchell, or both.
On page 11 the doctor recorded:
“I note that it is the case that [the claimant] considers that she may work as a pathology collector or teaching in regard to Nursing at TAFE and University – I note while these would not have been her occupation of choice, she considers that such is an option.”
That statement is not correct; as the doctor recorded earlier in his report, it had been suggested by others and not the claimant that she could do that work. Likewise, the doctor’s statement on page 12 of his report that the claimant “is considering alternative employment” is not correct.

Submissions

Claimant’s case

The claimant’s case is that by reason of her ongoing injuries and disabilities she will experience lifelong symptoms and restrictions. Considering the multiple surgeries she has undergone to her cervical and lumbar spines, together with her associated chronic pain and psychological sequalae, she submits that it is highly unlikely she will ever be able to return to any meaningful employment.
In oral submissions Mr Best argued that the claimant has no economic capacity. In his submission, the claimant’s loss of capacity is both immense and profound; every facet of her life had been destroyed. Mr Best pointed to the barriers to work identified by Ms Stewart in her report and argued that even if it was concluded the claimant had a theoretical capacity to work, she had no practical work capacity. In his submission, the work capacity identified by Dr Mitchell was theoretical, and that a job fitting the limitations described by Dr Mitchell was a “sheltered employment situation with a benign employer”.
In Mr Best’s submission, had the accident not occurred the claimant’s career trajectory would have seen her become a Midwife and then a Nurse Educator.

In the event his primary case was not accepted, Mr Best submitted that any future work capacity will not occur in the short term, and that if the claimant were to gain capacity to work it would be in two to five years time. He argued that it was highly improbable that the claimant would ever be able to work consecutive days and on the days she did work, she would not be capable of working for a full day.

Insurer’s case

The insurer disputes that the claimant retains no residual work capacity; in its submission such a proposition is unnecessarily pessimistic and does not reflect “much of the available medical evidence”. By way of example, the insurer relies on what it says is Ms Stewart’s opinion that the claimant has some capacity for sedentary occupations, and identified the following as vocational opportunities that may be suitable in light of the claimant’s injuries:
(a)    Telehealth nurse;
(b)    Red Cross Blood service nurse;
(c)    Pathology collector/Phlebotomist, and
(d)    Medical receptionist
In both its written and oral submissions, the insurer relied on the opinion of Dr Mitchell. In its written submissions the insurer made specific reference to the doctor’s supplementary report dated 14 June 2024, and his statement that there appeared to be no change in the claimant’s symptoms since he previously examined her. The insurer placed reliance on the doctor’s statement that “he is wary that the level of symptoms and disabilities claimed appears excessive relative to the objective clinical and radiological evidence available.” The insurer also relied on Dr Mitchell’s opinion that the claimant has the capacity for suitable work on the condition that she avoids any aggravation of her reported symptoms and takes precautions.
The insurer submits that the claimant is considering alternative employment opportunities.

In this regard the insurer relies on the report of Dr Roberts, who it submits expressly recorded that the claimant is considering alternative employment such as work as a pathology collector or teaching nursing at TAFE or university. This submission is not supported by the doctor’s report, relevant aspects of which have been addressed earlier in these reasons and is rejected.
The insurer acknowledges that due to the claimant’s condition, she will not likely be able to return to her pre-injury duties as a Registered Nurse. However, the insurer submits that she retains a substantial residual capacity and transferable skills to obtain employment, such as the roles set out in Ms Stewart’s first report.
The insurer further submits that the most likely scenario following the finalisation of these proceedings is that the claimant will obtain and be able to perform full-time work within her field of expertise on a sedentary basis, including, but not limited to medical reception work, pathology collector, telehealth nurse, or an educator.
In oral submissions, Mr Wilson argued that an inference may be drawn that the pain pump and spinal stimulator were being considered because they are going to make “some kind of difference”. In his submission, there was a possibility for improvement of the claimant’s symptoms.
Mr Wilson argued that the insurer had comfortably discharged the evidentiary onus it carries to establish the claimant has a practical earning capacity. In his submission, not only had the jobs the claimant could perform been identified, but Dr Mitchell had considered the jobs and concluded the claimant could perform them.
The insurer’s case is that the claimant could perform each of the four identified jobs on a full-time basis. It was argued that the claimant has a “really good skillset”; she is university qualified and has medical knowledge. In the insurer’s submission, a finding that the claimant is going to be unemployed for the rest of her working life should not be arrived at lightly.
Mr Wilson also submitted that the claimant’s subjective complaints should not be accepted, and that there had been some exaggeration.

Loss of capacity findings

I am satisfied that the descriptions of the duties involved in the claimant’s pre-accident work as a Registered Nurse and Registered Community Nurse that are contained in Ms Stewart’s February 2024 report are accurate general descriptions of the duties associated with those roles. I find that prior to the accident the claimant was capable of working as a Registered Nurse and a Community Nurse on a full-time basis without restriction.
I have accepted the claimant’s evidence about the symptoms she experiences as a result of her accident caused injuries and the medication she takes for these injuries. I have also accepted her evidence about the functional impact her injuries have on her. In particular, as a result of her accident caused injuries, the claimant has functional limitations with respect to walking, sitting, standing, driving, reading, writing and using a computer, overhead work, and concentration.
The evidence overwhelmingly supports a finding that the claimant has no capacity to perform her pre-accident duties as a Community Nurse or a Registered Nurse. Nor could she work as an Assistant in Nursing, a role she performed before qualifying as a Registered Nurse. There is no suggestion that she could undertake the retail work she performed early in her working life.
The claimant has a clear loss of capacity to earn. Her loss of capacity to earn arises not just as a result of the functional impact of her physical and psychological injuries but also the side effects of the medication she takes. In this regard, it is of significance that the claimant has been undergoing ongoing pain management, and attempts have been made to wean her off the “concerning doses” of opioid medication she has been prescribed without success. I give weight to Dr Boesel’s report of 8 January 2024 in which he stated that the situation with respect to the claimant’s medication was “very difficult”, noting that she was taking high doses of opioids, and that Ketamine had failed.

The claimant has undergone a range of treatment, both non-invasive and surgical, to address her physical symptoms. While there has been some limited improvement of her symptoms, she has continued to experience significant pain. The accident occurred nearly five years ago. I find that the claimant’s condition is unlikely to improve. In making this finding I have taken into account that consideration is being given to a pain pump and spinal cord stimulator.
I have also taken into consideration Dr Mitchell’s opinion that the level of the claimant’s reported symptoms and disabilities appeared to be excessive “relative to the objective clinical and radiological evidence”. The doctor’s impression in this regard appears to have influenced his opinion about the claimant’s work capacity.
The “objective clinical and radiological evidence” referred to by Dr Mitchell is not the only evidence that needs to be taken into consideration when assessing her work capacity. The functional impact of the claimant’s psychological injury and the medication she is taking must also be considered.
I have accepted the claimant’s evidence about her physical symptoms and functional restrictions. I am satisfied that she suffers symptoms as a result of her psychological injury that give rise to functional limitations. Further, the medication the claimant is taking, in particular the opioid medication, is impacting on her functioning. She has, when all these matters are taken into consideration, a significantly compromised capacity to earn.
For these reasons I do not accept Dr Mitchell’s opinion that the level of the claimant’s reported symptoms and disabilities is excessive. Nor do I accept his opinion that she has a current capacity for suitable work that catered for the precautions the doctor identified.
In his second report, Dr Mitchell responded to a series of questions that are reproduced earlier in these reasons. The doctor was asked to address a series of questions about the claimant’s capacity to work as a telehealth nurse, Red Cross blood service nurse, pathology collector and medical receptionist. Contrary to what is stated in the introductory paragraph to the questions put to the doctor, Ms Stewart did not consider that the claimant could return to sedentary work that included those roles. Ms Stewart’s report clearly states that “the current and future functional viability in these occupations cannot be confirmed…”. Ms Stewart also stated that based on her self-reported symptoms, functional tolerances and impact of prescribed medication, functional improvements would need to be achieved in order for the claimant to be competitive on the open labour market. I accept Ms Stewart’s opinion in this regard.
The accident occurred nearly five years ago. There have been limited, if any, functional improvements in that time. The claimant’s physical disability, her experience of pain, her mental health symptoms, and the side effects of medication are all entrenched. Both surgical and non-surgical treatment have failed to result in a significant improvement in her condition. Attempts to ween her off opioid medication have not been successful. On balance, I am satisfied that functional improvement is unlikely.
I have given consideration to the typical functional demands of each of the roles identified by Ms Stewart. With respect to work as a telehealth nurse, I am not satisfied that the claimant has the capacity to constantly sit at a work station and perform data entry and attend to telephone calls as a result of functional limitations resulting from her neck and back injuries.
With respect to work as a Red Cross Blood Service Nurse, I find that due to her functional limitations she could not undertake the lifting required, nor the need to frequently stand, walk, and bend. She could not, in my assessment, perform the full range of functional requirements involved in work as a pathology collector, in particular frequent standing and walking, lifting, repetitive use of her hand and arms, and the use of medical equipment.
Work as medical receptionist is not a practical option because of the sitting and standing requirements, the data entry work, and repetitive arm, hand, and finger movements required.
As the insurer submitted, a finding that the claimant is going to be unemployed for the rest of her working life should not be made lightly.
The combined effect of the claimant’s functional limitations arising from her physical injuries, her psychological symptoms, her problems with sleep, and the medication she is taking, is such that in my assessment she does not and will not have a practical capacity to earn. I find that the claimant has no residual earning capacity.

NON-ECONOMIC LOSS

The claimant is entitled to an award for non-economic loss. This head of damages compensates her for pain and suffering, loss of amenities of life, and disfigurement: s 1.4 MAI Act. The current maximum amount of damages for non-economic loss is $654,000.[2]
[2] Section 4.13 MAI Act as adjusted by cl 5 Motor Accident Injuries (Indexation) Order (No 2) 2023.
Once the s 4.11 threshold of 10% impairment is passed, damages for economic loss are assessed without statutory constraint, save that no more than the maximum declared by

s 4.13 may be awarded.[3]
[3] Hodgson v Crane (2002) 55 NSWLR 199; 36 MVR 551; [2002] NSWCA 276 at [39] per Heydon JA (Sheller JA and Davies AJA agreeing).
The absence of any “statutory constraint” requires the Commission to adopt the common law’s methodology for the assessment of damages for non-economic loss[4]. The maximum has no bearing on the amount proportionate to the claimant’s injury; it simply caps what may be awarded.[5]
[4] RACQ Insurance Ltd v Motor Accidents Authority (NSW) and Others (No 2) [2014] NSWSC 1126 (RACQ) at [25].
[5] RACQ at [30].

Submissions

The claimant’s case is that she is a relatively young woman with constant pain, unsuccessful outcomes to surgery, and is significantly depressed. Her prognosis is poor and she has a long future living with the physical and psychological sequalae resulting from the accident. She seeks an award of $500,000.
The insurer argues that the claimant does not have an assessable impairment in relation to her psychiatric injury, and that there are divergent views in the medical evidence about the extent of her physical impairment and its causation.
In the insurer’s submission an award in the order of $250,000 for this head of damage “would do justice to the parties having regard to the available medical evidence.”

Award

In addition to the surgery performed by Dr Kam, the claimant has undergone numerous radiological investigations, had physiotherapy, and had injections and blocks in her cervical and lumbar spine. She has also received treatment for her psychological injury.
Pre-surgery the claimant experienced pain in her cervical and lumbar spine, and experienced pins and needles radiating down her right arm into her fingers. She also experienced back pain down her left buttocks into her hamstring and knee.
Although injections to her cervical spine resulted in relief for “around” two months, I accept her evidence that the pain returned with increased intensity.
Several months after the July 2021 surgery the claimant began to experience worsening pain in the base of her neck, and new symptoms down her left shoulder, through her bicep to her ring and little fingers.
Following the neck surgery, the claimant’s symptoms did not improve, despite additional

non-surgical treatment. She continued to experience neck pain following the second surgery. She also experiences pain in her right shoulder and arm.
After the back surgery in December 2021 the claimant’s left leg pain reduced. However, her low back pain increased. She developed sharp stabbing pain in her lower back. Her evidence at the assessment was that her back pain is worse than her neck pain.
In addition to back and neck pain the claimant also experienced pain in her hips.
I accept the claimant’s evidence that she experiences ongoing and debilitating pain in her neck, right shoulder, and right arm, together with pain in her lower back that radiates to her legs. I accept that she can only walk approximately 50 meters at a time and can only sit in the same position for 10 minutes. I also accept her evidence that she experiences symptoms in her left and right hands, and that she experiences weakness in her right hand and drops things.
The claimant’s evidence is that as a result of pain she has difficulty sleeping, and that her sleep is constantly interrupted. Her evidence was that when she awoke in the morning she was not rested, and “not ready to face the day”.
The claimant’s injuries have impacted on her ability to carry out activities of daily living independently. She finds it difficult to lift heavy groceries, do laundry, stand for prolonged periods to prepare meals, cook, wash up, iron, and make the bed.
I accept the claimant’s evidence that she has lost interest in activities that used to bring her pleasure. She has given up sport, and is socially withdrawn, losing contact with some friends and family.
I have considered the medication the claimant takes to treat her injuries, as set out at paragraph [116] of her statement. The medication presently includes Targin, Endone (oxycodone), Piroxicam, Cymbalta and Lyrica.

I accept the claimant’s evidence that the primary side effects she experiences as a result of the medication includes fatigue, “brain fog”, word finding difficulties, and slurring. She described the brain fog as being “horrible”; it makes it hard for her to understand things, do multiple tasks, and make decisions. These side effects impact on her ability to look after her children, drive, and undertake daily activities.
To address her pain, the claimant has attended a pain clinic. On 8 January 2024, Dr Tillman Boesel, pain medicine physician, reported that the claimant had not responded to ketamine infusion in hospital and, consequently, had been discharged early. She was not able to be weaned off her “concerning doses of opioid medications”. The doctor went on to say:
“We are in a very difficult situation:
·There has been limited benefit from other interventions, including RF
·She is failing medication and on high dose opioids (which is not really in her best interests)
·Ketamine has failed…”
In Dr Boesel’s opinion the remaining options are to continue to try to optimise her further or perform more invasive treatments such as neurostimulation or spine surgery. In either case, “she is not in the best shape she'd need to be before contemplating more invasive treatments.”
In addition to her physical injuries the accident caused psychological injury has also had a significant impact on the claimant’s life. She reported to Dr Rastogi in July 2024 that her depression has worsened over time, amplified in the context of chronic pain, her poor response to treatment, and inability to work. In her statement, the claimant described feeling “hopeless, worthless, and helpless”.
The claimant is presently 36 years of age. She has a life expectancy of 50 years on the medium tables. She has undergone a raft of treatment, including surgery on three occasions, and has scarring as a result of the surgery.
The claimant’s injuries affect her ability to drive and perform activities of daily living. Her quality of life has been affected. I accept her evidence that the pain serves as a constant reminder of her disability, and that she developed anger towards herself. She feels despondent and trapped by both physical pain and impairments and is finding it difficult to adapt to the changes and cope with the losses.

The physical limitations resulting from the injuries sustained in the accident have rendered the claimant incapable of tending to her home and garden. The disappointment of being unable to maintain her home weighs heavily on her. The claimant’s injuries have also impacted on her ability to engage in sport and has affected her social interactions.
Her relationship with her children has been affected. I accept her evidence that her intimacy with her husband suffers due to her pain.
The accident has had a profound impact on the claimant’s life. She will feel the effects of her injuries for a further half century. I award $430,000 for this head.

ECONOMIC LOSS

The claimant is entitled to damages for past and future economic loss if she proves that because of her accident caused injuries and consequential disabilities she has suffered a diminution of her earning capacity that is or may be productive of financial loss.[6] If these matters are proved she is to be compensated by an amount that reflects the financial consequences that follow from the impairment.[7] What capacity has been lost and what economic consequences will probably flow from that loss must be identified. Only then will it be possible to assess what sum will put her in the same position she would have been in if injury had not been sustained.[8]
[6] Graham at [347] per Dixon CJ, Kitto and Taylor JJ; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at [3] per Deane, Dawson, Toohey and Gaudron JJ; at [16] per McHugh J.
[7] Husher v Husher [1999] HCA 47 (Husher).
[8] Husher at [7].

Past economic loss

In June 2020 the claimant returned to work on restricted hours and duties. She was not able to continue and has not worked since April 2021. She has had a clear loss of capacity to earn as a result of her accident caused injuries and consequential disabilities. Her loss of capacity to earn has been productive of financial loss.
Damages for this head are agreed in the amount of $296,866. I award that sum.

Past loss of superannuation

Damages for past loss of superannuation are agreed in the amount of $34,466. I make an award in that sum.

Section 4.5(1)(d) damages

Damages for this head are agreed at $55,686. I award that sum.

Future economic loss

The claimant’s case

The claimant’s case is that she intended to remain working in Community Nursing until her youngest child commenced High School in 2025. Commencing in 2025, she intended to transition from Community Nursing into one of two alternate career paths, either becoming a Midwife or a Clinical Nurse Educator. Both career progression choices would require her to undertake further tertiary education at the University of Western Sydney, where the claimant had undertaken her undergraduate degree.
But for the motor accident, from early 2025 the claimant intended to enrol in either the Mid Start Graduate Degree to transition to become a Midwife or the master’s degree to become a Clinical Nurse Educator.
The Mid Start course is a twelve-month full-time course conducted by the University of Western Sydney in conjunction with NSW Health. Whilst undertaking the course, the claimant would be required to work full time as a trainee Midwife. The master’s degree is a two-year course, conducted at the University of Western Sydney. Whilst undertaking the course, the claimant would be required to work full time as a trainee Clinical Nurse Educator. Once qualified as a Clinical Nurse Educator, the claimant would have options to pursue a role in the community nursing sector as either a wound care specialist, a chronic and complex specialist, or as a palliative care specialist.
The claimant’s case is that her most likely future circumstances but for the accident involved her working:
(a)    one year as a trainee midwife;
(b)    five years as a midwife;
(c)    two years as a trainee nurse/midwife educator, and
(d)    25 years as a nurse/midwife educator.
She contends for an award of damages in the amount of $1,179,742.59 for future economic loss, calculated as follows:
(a)    Midwife in training for one year at registered nurse earnings of $1,492 - $1,492npw x 50.9 x .85 = $64,551;
(b)    Five years as a midwife from 1 July 2026 – 30 June 2031 - $1,151.16npw x 231.5 x .85 x .952 (1 year deferred) = $215,646.57;
(c)    Two years as a trainee nurse/midwife educator from 1 July 2031 – 30 June 2033 - $1,151.16nwp x 99.4 x .85 x .746 (6 years deferred) = $72,557.08, and
(d)    25 years as a nurse/midwife educator from 1 July 2033 – 30 June 2058 - $1,907npw x 753.6 x .85 x .677 (8 years deferred) = $826,987.94.[9]
[9] These figures reflect the claim as formulated in the claimant’s further submissions filed with leave given at assessment and differ from those set out in her written submissions included in the joint bundle.

The insurer’s case

As recorded earlier, the insurer’s case is that the most likely scenario following the finalisation of these proceedings is that the claimant will obtain and be able to perform full-time work within her field of expertise on a sedentary basis, including, but not limited to, medical reception work, as a pathology collector, telehealth nurse, or an educator.
Subsequent to the assessment, and with leave, the insurer provided a document titled “Net earnings on future vocational options”. The document sets out (among other things) the net remuneration for each of the four roles it argues the claimant is capable of performing. The document annexes ATO individual tax calculator summaries for each of the roles. The weekly net remuneration is as follows:
(a)    Telehealth Nurse – $1,262;
(b)    Red Cross blood service Nurse – $1,183;
(c)    Pathology collector – $925, and
(d)    Medical receptionist - $916.
The insurer submits that any associated average weekly loss would be relatively modest and would be somewhere between $200 net per week and $400 net per week. $400 net per week x multiplier of 833.8 minus 15% for vicissitudes equates to $283,492. The award for loss of future superannuation calculated at 14.65% would amount to $41,531.
The insurer submits that the award for this head of damage would not exceed $320,000 inclusive of superannuation.

Award

I have earlier made findings about the impact the claimant’s injuries have on her capacity to earn and have found that she has no residual earning capacity.
Section 4.7 of the MAI Act must be addressed when assessing future economic loss. The section is in the following terms:
“4.7 Future economic loss—claimant’s prospects and adjustments
(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
I have accepted the claimant’s evidence that her ultimate career goals were to learn and practice in midwifery and after a few years become a Nurse Educator.
In addition to the claimant’s stated intentions with respect to her career, she has an established record of working full time in the nursing profession and studying at the same time, having successfully completed a Certificate III Assistant in Nursing and a Bachelor of Nursing. She has worked for NSW Health for 10 years and is aware of the work involved as a Midwife and Nurse Educator, and the qualifications required for each role.
Ms Stewart was of the opinion that, given the claimant’s young age when the accident occurred, her “evidenced determination” to become a Registered Nurse, and her self-described enjoyment of her work, a range of career opportunities, progression, and advancement were potentially available to the claimant if not for the impact of her injuries.

I agree.

I find that the claimant’s most likely future circumstances but for her injuries were as follows:
(a)    she would have commenced the Midstart Midwife program in 2025, studying while working full time as a Community Nurse;
(b)    she would have commenced working as a Registered Midwife from 1 July 2026;
(c)    that she may have qualified as a Nurse Educator and worked in that capacity, and
(d)    she would have worked full time to age 67.

The award rates of pay for public health system Nurses and Midwives are in evidence.[10] For both nurses and midwives, the weekly rates of pay increase either by year or grade. The earnings for Registered Nurses and Registered Midwives are the same.
[10] Attachment 1 to a NSW Health Information Bulletin issued in December 2022.
I propose to adopt a figure of $1,400 net a week as the measure of the claimant’s financial loss. This figure accords with the net earnings of both an 8 year Registered Nurse and an 8 year Registered Midwife. After applying the multiplier for 30 years and deducting 15% for vicissitudes the award is $978,180[11].
[11] $1,400 x 822 (multiplier for 30 years) less 15% for vicissitudes.
I am satisfied that it is possible the claimant would have ultimately qualified as a Nurse Educator and worked in that capacity. To qualify for that role required five years clinical experience and completion of a master’s degree. The gross earnings of a Nurse Educator are higher than those for nurses and midwives. Again, the weekly rate differs between the various grades. The present award rates start at $1,962.40 gross (approximately $1,508 net) for year 1. At the highest level, Grade 3 -2^nd year and thereafter, the gross weekly pay is $2,545.10 (approximately $1,890 net).
While she has previously undertaken studies, including a Bachelor of Nursing, the claimant has not studied at masters level. Had she pursued a career as a Nurse Educator, it would have been after she had qualified as a midwife and would have taken a number of years to come to fruition. Over that time other factors may have intervened. I find that the possibility of the claimant ultimately working as a Nurse Educator is of a lesser degree than the possibility of her working as a midwife.
I propose to compensate the claimant for a loss of opportunity to exercise her earning capacity as a Nurse Educator by way of a buffer in the sum of $100,000 inclusive of superannuation.
I award a loss of future superannuation at 14% in the sum of $136,945.

SUMMARY OF DAMAGES AWARD

I assess the damages as follows:
Non-economic loss  $430,000
Past economic loss  $296,866
Past loss of superannuation  $34,466
Section 4.5(1)(d) damages (Fox v Wood)  $55,686
Future economic loss   $978,180
Loss of opportunity (buffer)  $100,000
Future loss of superannuation at 14%  $136,945
Total Damages Assessed   $2,032,143.

COSTS

The insurer is to pay the claimant’s costs and disbursements in accordance with the MAI Act and Regulations. I informed the parties at the assessment that I proposed to make this order in circumstances where there was agreement in relation to the claimant’s disbursements.

[2025] NSWPIC 142

10 April 2025