Dolbel v Allianz Australia Insurance Limited - [2025] NSWPIC 290

CERTIFICATE OF DETERMINATION OF MEMBER

CITATION: Dolbel v Allianz Australia Insurance Limited [2025] NSWPIC 290

CLAIMANT: Dolbel

INSURER: Allianz Australia Insurance Limited

MEMBER: Terrence Stern OAM

DATE OF DECISION: 23 June 2025

CATCHWORDS:
MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident; insurer admitted liability but alleged contributory negligence; assessment of damages; claim for damages pursuant to section 7.36; non-economic and economic loss damages for physical and psychological injury; past economic loss; Division 4.2 applied; Livingstone v Rawyards Coal Co applied; Medlin v State Government Insurance Commission applied; Husher v Husher applied; future economic loss; Nominal Defendant v Livaja applied; section 4.7 applied; IAG Ltd t/as NRMA Insurance v Damian Mares applied; Allianz Australia Insurance Ltd v Kerr applied; non-economic loss; section 4.11; Hodgson v Crane applied; Planet Fisheries Pty Ltd v La Rosa applied; James Hardie & Co v Newton applied; Coles Supermarkets Australia Pty Ltd v Meneghello applied; Held – damages non-economic loss, buffer for past and future economic loss, and Fox v Wood assessed at $570,414; claimant’s costs assessed at $67,621.63 inclusive of GST.

DETERMINATIONS MADE:
1. Damages assessed in the amount of $570,414.

STATEMENT OF REASONS
INTRODUCTION
1.The claimant, Karen Dolbel (Mrs Dolbel) was born in 1963. At the time of the accident, Mrs Dolbel was working as a bookkeeper for the family company KNW Transport.

The accident
2.On 8 August 2020, Mrs Dolbel and her husband Garry Wayne Dolbel (Mr Dolbel) had driven a Kenworth prime mover with trailer, to the South Coast for work involved in a bushfire cleanup.
3.On the date of the accident, a Saturday, it was raining so there was no work to do, and they decided to come home to Oak Flats to change trucks.
4.They left Eden at about 6.00am, reaching about 10km North of Batemans Bay at about 8.45am.
5.They were travelling behind a vehicle and on reaching an overtaking lane, Mr Dolbel commenced to pull out to overtake the vehicle.
6.At the same time, a vehicle from the opposite direction started heading straight towards the prime mover.
7.Mr Dolbel pulled to the right, but the vehicle also drove into that lane colliding directly into the passenger side of the prime mover.
8.After the impact, Mrs Dolbel thought Mr Dolbel was dead as he was not moving.
9.While she was still in the truck, a male person came to her side and asked her if she could get out as the truck was starting to catch fire. She feared for Mr Dolbel who could not get out.
10.Subsequently, Mrs Dolbel was informed that the driver of the car that drove into the prime mover had died in the collision, having apparently committed suicide.
11.Both Mrs Dolbel and Mr Dolbel were taken by ambulance to Batemans Bay Hospital before each was transferred to Canberra Hospital.
12.Mrs Dolbel sustained a number of physical injuries as well as shock and psychological trauma.

Assessment conference
13.An assessment conference took place on 17 March 2025.
14.The evidence was sound recorded and transcribed. The transcription covered 85 pages. Given the significant number of pages of evidence, this set of reasons does not seek to summarise the evidence which was transcribed and refers to it only where a submission had been made directly referring to the evidence transcribed.

The issues
15.The following issues have arisen for determination:
(a)    liability- the insurer has admitted liability for the accident but has alleged contributory negligence of 20% on the basis that Mrs Dolbel was either not wearing a seatbelt or not wearing a properly adjusted seatbelt;
(b)    the amount of damages to be awarded for non-economic loss, and
(c)    the amount of damages to be awarded for past and future economic-loss.

Statement of Karen Dolbel dated 1 August 2023
16.Mrs Dolbel’s primary statement was made on 1 August 2023 and I briefly refer to it by reference to paragraph numbers.
[7]     Completed Year 10, leaving school at about age 15.
[8]     While at school had two part-time jobs. She then worked at a pharmacy for about six years. This became full-time.
[9]     Obtained a job at Kodak Express developing films. Worked in that job for about 25 years, 15 years full time.
[10] Subsequently, she worked in a refrigerator shop in partnership with
Mr Dolbel
In about 2006 Mr Dolbel and she bought a bakery at Unanderra. Mr Dolbel worked in the business for a time and then Mrs Dolbel ran the business.
The business was sold in June 2019 [note: at the Assessment Conference, Mrs Dolbel was taken to the year the business was sold and agreed it had in fact been sold sooner]. At the time of the accident, Mrs Dolbel was working solely for KNW Transport, the family business. She said that she was looking to purchase a coffee shop, sandwich shop or something similar at the time. She said she missed working with the public, enjoyed her time at the bakery and was looking to go back into that type of work. She said that when she worked in the bakery, she served customers and also baked. It was quite heavy work.
Mrs Dolbel said she had ceased involvement (ie., as against ownership) with the bakery in about November 2019.
She said that when Mr Dolbel commenced running KNW Transport in or about 2007, she helped in that business doing banking, wages, bookwork, group certificates and other bookkeeping tasks.
At the time of the accident; she was working solely for KNW Transport.
Treatment after the accident
[27] At Batemans Bay Hospital, she received sutures to her left leg, the side of the knee, ligament damage and sutures to her right hand/wrist, a fracture to the palm of her right hand was plastered, a plate and screws were inserted in the palm of her right hand, as to the fracture to her right middle finger removal of the piece of jewellery which had penetrated that finger, punctured lungs, eight broken ribs, damage to her teeth, a fracture to her cheekbone on the right side, jaw, suture to her bottom lip which was cut and bleeding, and a neck brace. She also suffered shock.
[34] She was discharged from Canberra Hospital on 18 August 2020.
Psychological treatment before the accident
[46] Mrs Dolbel states that she was under the care of a psychologist, Angela Portillo, regarding family problems which started in December 2019.
[47] Mrs Dolbel continues that she had been seeing her since the accident in relation to the trauma she sustained until early 2022.
Medical practitioners
[50] Mrs Dolbel deals with the numerous doctors who have treated her since the accident:
Angela Portillo
Mrs Dolbel says she has had a number of sessions with her since the accident. There has been a gap but she was referred back to her and needs to see her. She still struggles with thinking about the accident, gets upset in traffic, has poor sleep, dreams, memories and nightmares about what happened.
Dr Terry Walton
She sees Dr Walton and Dr Webber who is in the same practice, and she has also been assisted by Dr Chris Kiang, dentist of Kiama. The treatment she has had includes a crown on the left second front tooth. She says she is still having problems with her teeth.
Dr Agus Kadir, Figtree Private Hospital
The claimant sees Dr Agus Kadir, Orthopedic surgeon, for treatment of the injury to her right wrist, hand and finger,
Dr Stuart Jansen
Mrs Dolbel was treated by Dr Jansen, Orthopaedic surgeon, for surgery to her left shoulder in April 2022.
Dr Sherif Elkady
Dental surgeon.
Dr Cherukuri
Mrs Dolbel saw Dr Cherukuri for treatments of headache and neck pain, on the referral of her general practitioner Dr Chaudry.
Symptoms
[51] Mrs Dolbel lists her problems:
a.     Headache.
b.     Neck pain.
c.     Restriction of movement of neck.
d.     Pain and discomfort in the left shoulder/shoulder blade.
e.     Reduced capacity to perform household and recreational activities due to pain in left shoulder region.
f.     Inability to raise left arm above shoulder height.
g.     Pain and discomfort in upper back region particularly on left side.
h.     Chest pain due to fractured ribs and bruising.
i.     Difficulty breathing.
j.     Pain to abdomen due to bruising.
k.     Pain and discomfort due to laceration/injury to face including:
(i)left side of face due to fracture of cheekbone;
(ii)mouth/teeth - inability to eat for 8 weeks;
(iii)ongoing sensitivity and discomfort due to trauma to teeth including sensitivity to hot and cold foods and drink;
(iv)Altered speech due to facial injury/mouth, and
(v)Altered sensation in the area, particularly of lower lip affecting speech and other activities including personal relationship with husband.
l.Pain and discomfort and restriction of function due to right wrist injury being her dominant hand including:
(i)loss of strength, and
(ii)loss of grip.

m.    Difficulty performing household and recreational activities that require strength and function of the right-hand including cooking, washing, ironing, cleaning, lifting.
n.     Pain in the right wrist particularly in cold weather due to the insertion of plate and screws.
o.     Loss of function in right hand due to injuries to the middle finger/index finger and the palm of the hand.
p.     Inability to close and make a right-hand fist.
q.     Clicking in the middle finger/index finger.
r.     Loss of flexion of index and middle fingers.
s.     Clicking and pain in the other fingers including the ring finger.
t.     Pain emanating from the ring and index finger up the right arm as far as the shoulder particularly with activity or sleep.
u.     Inability to sleep/lie on left side due to left shoulder injury.
v.     Pain and tenderness in left lower limb particularly on the outside of the knee.
w.    Inability to kneel on her left knee. This is due to sensitivity/pain. Some scarring on the outer side of that knee.
x.     Reduced function of left knee.
y.     Reduced ability to bend, twist or squat in relation to her left knee injury.
z.     Permanent scarring due to injuries.
aa.   Sleep disturbance.
bb.   Recurring thoughts of the accident.
cc.   Startled response in relation to traffic noise.
dd.   Anxiety whilst driving or travelling in a motor vehicle and avoids travelling in a heavy vehicle, particularly as a passenger.
ee.   Recurrent dreams/nightmares related to the said accident.
ff.     Loss of confidence.
gg.   As a result of the various injuries and resulting disabilities Mrs Dolbel is restricted in terms of social, domestic and recreational activities.
[52] Mrs Dolbel stated that she had not been able to resume work, although she does help with pays, banking and the like, and that she probably worked for 3-4 hours a week. She is assisted in the work by her daughter, who does most of the work.
[53] Mrs Dolbel states she would not be able to work in a bakery shop or small business by reason of her physical problems, her anxiety and depression causing difficulties in concentration, and her difficulty travelling.
[54] Mrs Dolbel states that she continues to see her general practitioner monthly. At or about the time of the statement, she was very concerned about continuing pain in her left shoulder region and shoulder blade. Her doctor had recommended an MRI of her cervical spine.
[55] She states that following the surgery on her left shoulder by Dr Jansen she was not happy with the results and was still experiencing pain, had restricted motion in her left arm, and problems with her right hand grasping things, for example opening jars. She believed that she would not be able to work in a small business such as a bakery because of the loss of function, not only in her right hand but also her left shoulder. She also believed she would not be able to cope with dealing with members of the public and the day-to-day stress of running a business.
[56] She says that she continues to have sensitivity with her teeth with hot and cold water, and with food. She has numbness in her bottom lip, a loss of feeling, and there is a lump which is upsetting. She has some pain in the left-hand side of her face around the cheekbone. The pain increases if she talks a lot.

Further supplementary statement of Karen Dolbel of 1 August 2023
17.I briefly summarise the claimant’s statement of 1 August 2023 by reference to paragraph numbers:
[22] – [43] The claimant outlines the severe injuries suffered by her husband and the limitations placed on his mobility and functioning. She submits that his memory, mood, and behaviour have been significantly affected post-accident, causing further stress in their household.
[44] – [47] The claimant details her previous employment history, including ownership of a bakery and her role in the family transport business. She notes that at the time of the accident she was working full-time in their transport business and had planned to return to customer-facing work, which she enjoyed.
[48] – [50] The claimant asserts that she continues to suffer psychologically from the trauma of the crash and has required ongoing psychological support. She also refers to the emotional toll on her husband due to parallels with the death of his son in a prior car accident.
[51] The claimant describes ongoing physical symptoms including headaches, restricted neck and shoulder movement, pain in her right hand and wrist (dominant hand), difficulty performing basic household and personal tasks, facial injuries, and psychological impacts such as anxiety, sleep disturbance, and nightmares.
[52]–[53] Mrs Dolbel says that she has not been able to resume work due to her physical and psychological impairments, and that she is now dependent on her daughter for business administration tasks she used to perform independently. She claims that but for the accident, she would have continued working in small business.
[54]–[56] The claimant maintains that her injuries continue to affect her daily life, particularly her left shoulder, right hand, and jaw/teeth. She reports persistent pain, reduced function, and sensitivity, and argues that the physical and psychological consequences prevent her from returning to work or managing a small business.

Further supplementary statement of Karen Dolbel of 25 October 2023
18.I briefly summarise the claimant’s statement of 25 October 2023 by reference to paragraph numbers:
[4] – [5] Mrs Dolbel clarifies her earlier evidence regarding her seatbelt positioning at the time of the accident. She submits that although she was leaning against the passenger side door with a pillow for support, she was still securely restrained by the seatbelt.
[6] – [8] Mrs Dolbel states that upon seeing the oncoming car, she sat upright and braced for impact, placing her right hand on the dashboard. She submits that her right hand injuries, including fractures and ligament damage, were caused by this action.
[9] – [10] Mrs Dolbel describes the collision impact as explosive and confirms she was thrown around while still seat belted, suffering facial, leg, and head injuries from the interior of the cabin, including suspected impact with the window or dash.
[11] – [14] Mrs Dolbel states that she was dazed but conscious following the collision. A bystander assisted her in exiting the truck through the passenger door after the door was forced open. She was then helped into a nearby car where she waited for medical assistance.
[15] – [17] Mrs Dolbel says that her left shoulder and seven ribs were injured from the seatbelt and violent movement within the cabin. She corrects an earlier error: her cheekbone and jaw fractures were on the left side, not the right. She attributes these injuries to being thrown against the interior of the truck.
[18] – [20] Mrs Dolbel confirms that her husband was wearing his seatbelt. She witnessed him fastening it shortly before the accident after a stop in Batemans Bay.
[21] – [22] Mrs Dolbel describes her husband’s position after the crash, stating that he was upright but slumped over the steering wheel, which had been pushed into his chest and abdomen. She adds that the windscreen had shattered and buckled inward into the cabin.
[23] – [26] Mrs Dolbel comments on post-accident photographs of the truck provided in an expert report. She asserts that her husband could not have been removed through the windscreen due to the damage and position of the steering wheel. She believes it is more likely he was removed through the passenger door, as she was.

Further supplementary statement of Karen Dolbel of 18 December 2024
19.I briefly summarise the statement by reference to paragraph numbers:
[8] Mrs Dolbel states that she experienced increasing pain and discomfort and restriction with her left shoulder and increasing problems with her neck and increased headaches.
[10] Since the accident, Mrs Dolbel suffers anxiety and sleep disturbance with recurrent thoughts of the accident. She attended a counsellor for a time but talking about the accident and its aftermath was too distressing.
[11] She lists the antidepressant medication she takes for anxiety:
(i)Pregabelin 75mg twice a day;
(ii)Panadeine Forte 6 tablets per day;
(iii)Neurofen in the mornings, and
(iv)Fluoxetine.

[12] Mrs Dolbel continues to have ongoing problems with her face/teeth as previously stated:
(i)sensitivity to hot/cold drinks and food;
(ii)there is pain on the upper lip adjacent to where the front tooth was crowned;
(iii)she cannot bite anything hard on my front teeth because she needs to avoid pressure on the tooth that is crowned. When she brushes her teeth there is sensitivity/pain when the toothbrush contact that area of her teeth, and

(iv)she has a loss of feeling/numbness on the lower lip where there as a laceration which required sutures.

[13] Mrs Dolbel sets out the continuing function or restrictions due to her left arm, left shoulder, right hand and right wrist and neck.
[14] If she bumps her right wrist she has significant pain. When she rotates her right wrist there is a “clunk”.
[15] She takes pain medication.

Evidence of Treating Medical Practitioners
Dr Zahida Chaudry
20.Dr Chaudry is Mrs Dolbel’s general practitioner. On 27 November 2020 she referred Mrs Dolbel to Dr Stuart Jansen, for assessment and management of non-improvement of her left shoulder pain and mobility. She told him that this injury was sustained in the accident. Mrs Dolbel had had quite a lot of physiotherapy because the shoulder had not improved.
21.Dr Chaudry told Dr Jansen that there was a past history of depression with the date
24 December 2019. Her current medications were Fluoxetine, one daily for depression, the last script being 3 September 2020, and Oxycontin, 10mg one per day for joint pain, the last script being on 29 September 2020.

Dr Stuart Jansen
22.Dr Stuart Jansen provided a series of reports to Dr Chaudry. In the first report of
16 February 2021, he reported that Mrs Dolbel had sustained injuries to her right wrist and hand and had fractured seven left ribs. About the time she left Canberra Hospital, she had had increasing pain in the left shoulder. There was more medial scapula pain that radiated into the neck. She had had some physiotherapy with partial improvement, she was given some nerve blocks for her rib fractures, she gets positional night pain. Clinically she had mild medial scapula tenderness, demonstrated a full range of motion with grade 5 strength.
23.In a report of 23 August 2021, Dr Jansen noted that Dr Cherukuri had organised an MRI of the cervical spine and a bone scan. The bone scan suggested some AC joint and some sternoclavicular degenerative change. She continued to have medial scapular pain that radiated around the ribs.

24.Dr Jansen reported again on 18 October 2021. The MRI showed some AC joint degenerative change. There was moderate subacromial bursitis, there was some bursal abrasion of the supraspinatus.
25.Mrs Dolbel had a left shoulder arthroscopy, and decompression and AC joint excision on 21 April 2022.
26.When Mrs Dolbel returned for review in early 2023, Dr Jansen reported to Dr Chaudry that Mrs Dolbel continued to have some mild residual stiffness and mild end range pain. She was doing most of her functional activities; still hanging out clothes on a low clothes horse, but found it difficult to wash her shower screen. She felt that her shoulder was better than before the surgery.

Dr Kadir
27.Dr Kadir reported to Dr Chaudry on 28 October 2020 that Mrs Dolbel had been involved in the accident while a passenger in a truck, hit by an oncoming car. She had sustained a closed fracture of the distal radius, open dislocation of the right middle finger, proximal interphalangeal joint and lacerations of the thenar eminence. She had had an open reduction and internal fixation of the distal radius fracture as well as washout and suturing of the open right middle finger PIP joint dislocation. Her post-surgical management was immobilisation of the right wrist in a plaster/splint for six weeks. The middle finger PIP joint was managed with a finger-based splint.
28.On review, on 12 January 2021, Mrs Dolbel had shown some improve in her right hand function. The right index and middle finger metacarpophalangeal joint stiffness had resolved. She still had numbness of the dorsal aspect of the right thumb. He advised her to continue with hand physiotherapy.

Dr Peter Scougall
29.Dr Chaudry referred Mrs Dolbel to Dr Peter Scougall. On 6 August 2021, Dr Scougall reported to Dr Chaudry, describing the multiple injuries:
“Right hand injuries included:
- Middle finger proximal interphalangeal (PIP) open dorsal dislocation. Reduced and sutured at Batemans Bay Hospital on the day of injury.
- Distal Radial Fracture, reduced and plated at Canberra Hospital 09/08/20 (Stryker plate).”

30.Dr Scougall continued, noting that the wrist had healed well. Mrs Dolbel had an episode of radial wrist pain post-operatively, but it had settled. She had middle finger stiffness, for which she had hand therapy.
31.His diagnoses were:
“Right hand
1.     Middle finger PIP stiffness after an open dorsal dislocation;
2.     Ring finger flexor tenosynovitis;
3.     Healed distal radial fracture after surgical fixation.”

32.In a report of 20 August 2021, there was no significant change and future options were steroid injection or surgery.
33.In a further report of 1 April 2022, Dr Scougall advised Dr Chaudry that the symptoms were unchanged. The proximal interphalangeal joint range of 10° - 95°, and the distal interphalangeal range of 0° - 50° could not be improved by surgery.
34.The distal radial fracture had healed well, and in good alignment after reduction and volar plate fixation. Wrist range was good. The fixation plate could be left in for the time being.
35.There was a volar crepitus at the base of the right ring finger consistent with flexor tenosynovitis. The range was good without triggering. Future options included steroid injection or surgery.

Dr Anthony Oliver
36.Dr Anthony Oliver, consultant oral and maxillofacial surgeon, recorded on
16 November 2021 his examination of Mrs Dolbel on 14 October 2021. His clinical examination confirmed multiple fine enamel fractures (“crazing”) in the crown of tooth 22 (maxillary left permanent lateral incisor tooth), which he said could ‘certainly occur’ as a result of trauma. Mrs Dolbel was unable to bite directly down on this tooth due to pain, the tooth was likely either a vital or in the process of becoming a vital. He referred her to Dr Sherif El-Kady (dental surgeon, Shell Cove), who in turn referred her to Dr Nima Kianoush, periodontist.

Dr Nima Kianoush
37.Dr Kianoush reported that the trauma of the accident, probably had very little to do with the issue around tooth 21 and tooth 22, and this trauma may have only slightly exacerbated the periodontal issues with those teeth. She then said the “8-week hospitalisation with poor oral hygiene is a more likely reason that her periodontal disease had initiated around this time, and we are seeing the manifestation of the disease at this stage.”
38.On that basis, the problems with tooth 21 and tooth 22 on the balance of probabilities were caused by lack of appropriate dental care during her period of hospitalisation.

Dr Weber Huang
39.Dr Weber Huang, specialist oral and maxillofacial surgeon reported to Dr Chaudry on 14 September 2020. Dr Chaudry had referred Mrs Dolbel for management of her dental and facial injuries following the accident. He noted that Mrs Dolbel had reported hitting her upper and lower anterior teeth and that she complained of loose teeth.
Dr Huang noted that teeth 32, 31, 41 and 42 showed Grade I mobility with plaque and calculus around the lower anterior teeth.

Dr Kirsty Hamilton
40.Dr Chaudry referred Mrs Dolbel to a neurosurgeon, Dr Hamilton who reported on
19 November 2024;
“We had the opportunity to review Karen's MRI cervical spine. The central canal is capacious. The salient finding is moderately severe C4 nerve impingement on the left side. There is also moderately severe C5 nerve root impingement on both sides and mild to moderate C6 impingement on the right side. The left C7 is unaffected.
We had a long discussion today about the natural history of disc degeneration and how symptoms may not be present until a traumatic event such as this. I think it is most likely Karen is symptomatic with left C5 symptoms given the distribution of her pain. First and foremost, I recommended a left C5 perineural cortisone injection for therapeutic and diagnostic reasons. We have provided a referral for this. I have also provided a referral for a nuclear bone scan to help elucidate the source of Karen 's neck pain, which I suspect is facet joint-related and may also be amenable to cortisone or radiofrequency treatments.
I asked Karen to see a physiotherapist for neck exercises. I have provided Karen with a script to trial Lyrica at a starting dose of 75 milligrams twice daily. She could always drop back to 25 milligrams in the morning if the daytime dose is too heavy for her or increase the nighttime dose to 150 milligrams to help aid with sleep disturbance. Karen knows to come off if it exacerbates any psychological symptoms or causes leg swelling. I have also advocated for the short-term use of anti-inflammatory medications such as Mobic, Celebrex, or Voltaren for up to 5 days at a time. I will catch up with Karen by telehealth after she has had the cortisone injection. There would be an option to repeat this at 3 months. If there is no benefit after a period of 2 weeks, we could try a left C4 injection.”

Medico-legal expert opinion
Dr Michael McGlynn
41.Dr McGlynn, plastic reconstructive and hand surgeon, reported to Mrs Dolbel’s solicitor on 21 August 2023.
42.Dr McGlynn listed the disabilities caused by the accident relevant to his speciality:
(a)    lower lip scarring causing facial disfigurement;
(b)    left TMJ disfunction and hypersensitive upper incisor teeth causing impairment of mastication;
(c)    skin scarring causing disfigurement;
(d)    restriction of right-hand active range of movement causing right upper extremity impairment, and
(e)    restriction of left shoulder active range of movement causing left upper extremity impairment.

43.He said the prognosis was fair, her condition was stable and unlikely to deteriorate. She had permanent disability as a result of multiple injuries sustained in the accident. He did not recommend any further surgical or other specific treatment.
44.He noted that Mrs Dolbel was conscious of the lip scar. There was some colour contrast with the surrounding skin. She was able to easily locate the scar. There were minimal trophic changes, no suture marks but the anatomic location was visible.
45.With respect to mastication, there was no loss of structural integrity of the face, however, diet was restricted to soft food because of dental hypersensitivity and TMJ dysfunction. He considered the restriction mild and in the lower third of the range.
46.With respect to skin scarring, Dr McGlynn noted there was visible laceration skin scarring on the left lateral knee, visible surgical scarring on the right anterior forearm and right hand, and barely visible arthroscopy scars on the left shoulder. He noted
Mrs Dolbel was conscious of her multiple scars and commented that there was noticeable colour contrast with the surrounding skin and that she was able to easily locate the scarring.

Dr Anil Nair
47.Dr Nair, consultant orthopaedic surgeon reported at the request of Mrs Dolbel’s solicitor on 21 August 2024. He performed a clinical examination and he had the relevant diagnostic investigations.
48.Dr Nair’s diagnosis:
“From an orthopaedic and spinal perspective she has sustained an aggravation of left shoulder subacromial impingement. She sustained an intraarticular right distal radius fracture. She sustained an aggravation of previously asymptomatic cervical spondylosis.”

49.Dr Nair’s details of any particularly painful procedures or consequences of the injury relevant to his specialty:
“She has undergone corticosteroid injections as documented in the body of the report. She has undergone surgery on the left shoulder and right wrist. She is due to consult a Spinal Surgeon in the near future due to clinical features of left C5 radicular pain”

50.Dr Nair’s observation as to the need for future surgery and prospects of success of any proposed operation, relevant to his specialty;
“As she has developed symptoms consistent with extrinsic compression of the left C5 and possibly left C4 nerve roots, appropriate treatment would be consultation with a spinal surgeon.
A logical treatment paradigm would be to perform nerve root blocks in order to not narrow down the pain generator if it is proven that symptoms in her left trapezial and arm region stem from extrinsic compression of spinal rootlets then spinal surgery either in the form of anterior cervical discectomy and fusion or micro foraminotomy may be available.
I am unable to comment on which permutation I would recommend as I was not able to review any medical imaging rather rely on a radiologist report. Furthermore, I would recommend diagnostic blocks prior to any intervention. An anterior cervical discectomy and fusion cost approximately $40,000 per level per episode of care. A cervical foraminotomy costs approximately $25,000 per level per episode of care.”

51.Dr Nair’s comment on the applicant's capacity for work. Dr Nair considered whether she was likely to regain the capacity for full-time employment. Whether her working life is likely to be reduced as a result of the consequences of the relevant injuries sustained in the subject motor vehicle accident and, if so, to what extent;
“She is totally and permanently incapacitated within the limits of her education and work experience.”

52.Dr Nair’s view as to whether there was impairment permanent:
“The right wrist condition, the cervical spine condition and left shoulder condition have resulted in permanent impairment.”

53.Dr Nair’s assessment as to the relevant body parts in terms of his specialty, including the right upper extremity, the left upper extremity, lower extremity and scarring pursuant to the AMA IV Guidelines:
“ It is not appropriate to assess cervical spine impairment as she is not seeking active treatment at this point in time.
Utilising AMA 4th edition, the range of motion of the right wrist is assessed utilising figures 26 and figures 29 on pages 36 to 38 due to loss of range of motion. She qualifies for 14% upper extremity impairment utilising Table 3. This converts to 8% whole person impairment for the right wrist.
The left shoulder is assessed utilising Figure 16-40 to 16-46 due to loss of range of motion she qualifies for 15% upper extremity impairment.
Furthermore, using Table 16-27 due to the fact that she has had an excision arthroplasty of the left distal clavicle, she qualifies for 5% upper extremity impairment. Combining 15% with 5% results in 19% upper extremity impairment. Due to the left shoulder condition, utilising Table 16-3, this converts to 11% whole person impairment.
In regard to scarring, Mrs Dolbel qualifies for 2% whole person impairment as she has a tender and conspicuous scar in her right distal radius as well as a H shaped scar in the lateral aspect of her right knee due to the traumatic laceration. The H shaped scar is both conspicuous and painful. Thus, she qualifies for 2% whole person impairment utilising the TEMSKI scale.
Combining 8% due to right wrist condition with 11 % due to right shoulder condition with 2% due to TEMSKI scale results in 20% Whole Person Impairment. There are no deductions with pre-existing injury.”

54.Dr Nair’s apportionment of disability to the accident; and/or any prior or subsequent injury or condition:
“The impairment due to her cervical spine condition (as her cervical spine condition was asymptomatic prior to the subject accident) and right wrist condition are solely and unambiguously related to the subject accident.
She had no symptoms in her left shoulder region prior to the subject injury.”

The insurer’s medico-legal evidence
Dr Paul Nichols
55.Dr Paul Nichols, dental surgeon, reported on 20 October 2022 at the request of the insurer’s solicitor.
56.Dr Nichols outlined the following past history:
“There were no pre MVA dental records or x-rays (Dr Kiang). Tooth 21 was fractured through trauma 40 years ago, has had root filling and composite veneer. It was most likely fragile (pre-existing condition) and suffered internal root fracture as a result of the MVA. Her back teeth appear as normal, with some routine fillings.”

57.Dr Nichols undertook an examination which appears on page 3:
“Extra Oral
(a)    There is no facial asymmetry or other abnormality.
(b)    There is a cheloid scar lower lip left side.
(c)    The muscles of mastication are normal to palpation.
(d)    There is no restriction to jaw opening (50 mm).
(e)    There is no residual facial scarring.
(f)    The boarders of the mandible and alveolar bone palpate as normal.
(g)    The TMJs palpate and auscultate as normal (no clicking or crepitis).
Intra Oral
(h)    There is a full complement of natural teeth in good posterior occlusion.
(i)    The front teeth are crowded and tooth 22 is rotated 90 degrees.
(j)    Tooth 21 has a discoloured composite resin veneer is non-vital and tender to percussion.
(k)    Tooth 22 is non vital and tender to percussion.
(l)    Teeth 11, 31, and 32 are tender to percussion and temperature change.
(m)     All back teeth are firm and test normal to palpation and percussion.
(n)    The lower front teeth have significant gingival recession and are mildly mobile.
(o)    Oral hygiene is not good, and she will need to improve if sophisticated prosthetic dentistry (implants) is to be considered.
Radiologic examination
(p)    There were no original dental x-rays available today.
(q)    There were photocopies of PA x-rays of the front teeth that showed no gross pathology but do reveal the periodontal disease (pre-existing) and the root filled and extensively restored 21. The periodontal disease of the lower incisors is serious (unrelated/preexisting).”

58.Dr Nichols then set out his diagnoses at page 3:
“Unknown. I have not sighted diagnostic quality x-rays.
On the evidence:
Tooth 21 with internal stress fractures of the root.
Tooth 22 rotated and non-vital.
Teeth 11, 31, 32 with internal stress fractures and reversible pulpitis.
Generalised periodontal disease (unrelated).”

59.As to causation, Dr Nichols stated “Unknown”, having not sighted any pre-motor vehicle accident records or x rays”. He said it is possible (likely) that the motor vehicle accident may have done damage to the subjects from teeth but it is also likely there was a pre-existing condition of fragility of tooth.
60.With respect to Mrs Dolbel’s present complaints and disabilities, Dr Nichols said she has ongoing sensitivity to pressure (eating) and temperature changes, and some front teeth were loose. There was no disability as such, but she needed to cut up her food more than normal.

Dr Alan Home
61.Dr Home, an occupational physician, reported to the insurer’s solicitor on
24 October 2022.
62.Dr Home performed a clinical examination and set out the results at pages 8-10.
63.Dr Home set out his diagnoses and causation at page 10. He outlined the following injuries:
“Undisplaced fracture of the left jaw/manubrium – healed. Lower lip deformity.
Acute fracture of the left maxilla with impaction of the teeth - the assessment of dental injuries is beyond my area of expertise
Multiple left rib fractures, 2, 3, 4, 6, 7 and 8 - resolved
Fracture of the manubrium sternum – resolved.
Fracture of the right (wrist) distal radius and fracture of the right triquetrum. The distal radius fracture was treated with open reduction internal fixation. There has been a good recovery from the right wrist complaint, with range of active motion within normal range, with only mild stiffness when compared with the non-injured left side.
Left shoulder subacromial bursitis and aggravation of AC joint arthritis, requiring AC joint excision arthroplasty and subacromial decompression surgery; residual post-operative stiffness.
Right middle finger: - volar plate injury, residual restricted motion of the PIP and DIP joints.
Scalp haematoma – resolved.
Left knee laceration (incorrectly labelled on the Canberra discharge summary as right knee), with residual scarring.
Right thigh abrasion – resolved.
Abdominal mesenteric contusion – resolved.”

64.Dr Home found that Mrs Dolbel was fit to resume her pre-accident employment as a bookkeeper, for about 30 hours per month. He would not put any restriction on employment for sedentary work and considered that she was able to undertake full time work of a sedentary, semi-sedentary or light manual nature.

Dr Nigel Curtis
65.Dr Nigel Curtis reported to the insurer’s solicitor on 30 March 2023.
66.Dr Curtis set out his diagnosis on page 4:
“It is clear that Mrs Dolbel was involved in a motor vehicle accident as a front seat passenger on 8 August 2020 and she has sustained multiple orthopaedic injuries including a fracture of the right wrist, right index finger and injuries to her left ribs and left knee and left shoulder in this accident. Mrs Dolbel has also suffered orofacial injuries including undisplaced fractures of the left zygoma and left mandible and a small laceration of the left lower lip. Mrs Dolbel has also suffered an injury to the 22 tooth which has been treated appropriately by her general dental practitioner Dr Kiang, with root canal treatment and provision of a crown.
There is some mild left sided temporomandibular joint crepitus present which could be due to the original blow in the left zygomatic region in the accident and the only treatment that would be necessary for this is a simple arthrocentesis with follow up occlusal splint therapy if necessary. The orofacial injuries sustained by Mrs Dolbel in this case are clearly, directly and causally related to the motor vehicle accident suffered on 8 August 2020. There are no identifiable pre-existing conditions that could have affected the injuries to the 22 tooth or the undisplaced fracture to the mandible and zygoma, and mild crepitus in the left temporomandibular joint in this case. The orofacial injuries sustained by Mrs Dolbel are consistent with her description of the accident suffered on 8 August 2020.”

67.His prognosis follows at [7]:
“In regards to the orofacial injuries suffered as a consequence of the motor vehicle accident on 8 August 2020 the prognosis should be deemed very good. The injury to the 22 tooth has been treated successfully by Mrs Dolbel’s dental practitioner, Dr Kiang, with some root canal treatment and crown provision. There is some mild residual crepitus of the left temporomandibular joint, but it is questionable whether this feature would need any treatment. If treatment was required, it would be a simple arthrocentesis and manipulation of the left temporomandibular joint and some follow up occlusal splint therapy. It would be fair to say that the orofacial injuries in this case have reached a point of maximum spontaneous medical improvement and I would not expect the whole person impairment related to the orofacial in this case to vary by more than 3% in a twelve month period.”

Contributory Negligence - McIntosh
68.Dr Andrew McIntosh (PhD) provided a report at the request of the insurer’s solicitor.
69.After giving description of the accident and of Mrs Dolbel’s injuries, describing the vehicles and gross weight of the Holden Trax, on the one hand and of the prime mover and trailer on the other. Dr McIntosh went on to describe the severity of the crash.
70.At [6] he discusses the use of seatbelts in trucks.
71.At page 6 of his analysis he notes that the hospital clinical notes refer to “unrestrained passenger in truck, sitting sideways.”
72.He says at [35]:
“…based on the very large mass difference and mass ratio between the two vehicles and the likely closing speed ranges, the change in velocity of vehicle 2 would have been low-to-moderate in the collision with vehicle 1. If carried load was considered, the change in velocity of vehicle 2 would be lower at each closing speed.”

73.At page 38, Dr McIntosh offers the following opinions:
[72] “on balance, the Claimant’s failure to wear a securely fastened and properly adjusted seatbelt is causative and contributed to the injuries alleged to have been sustained by the Claimant in the crash”
[73] “had the Claimant been wearing a properly adjusted and securely fastened three-point seatbelt, her injuries would have been reduced in complexity and severity. Table 4 is a summary of my opinions regarding (a) the likelihood of the Claimant sustaining the injuries as listed in the hospital records and (b) the likelihood of sustaining injury had she been wearing a securely fastened and properly adjusted seatbelt.”
[75]“The Claimant was the front seat passenger in a low-to-moderate severity frontal-type collision. There was no or minimal intrusion into the occupant area of vehicle 2. There was likely movement of components within the cabin, e.g. radio. A high mass and structural ‘strong’ vehicle, such as the Kenworth Prime Mover, offers considerable advantages to the occupants in collisions with relatively low mass and deformable motor cars. In short, despite the likely high-closing speed, i.e. both vehicles travelling at speeds between approximately 50 and 100 km/h, the momentum of the truck is massive compared to the motor car. Therefore, the collision is similar to a low-to-moderate severity frontal collision for a motor car occupant from the perspective of the Claimant. A seatbelt offers considerable protection to an occupant in a low-to-moderate severity frontal collision, such as the Incident.”
[76] “It is very unlikely that the Claimant was wearing a properly adjusted and securely fastened three-point seatbelt.
i.The Claimant may have had the seatbelt securely fastened, but was ‘out of position’ so that the seatbelt offered only limited protection.”

[77] “There is no objective information regarding seatbelt use, e.g. documented inspection of the seatbelt. There is no independent verification of seatbelt use, e.g. witness. The Police recorded that the Claimant had worn a seatbelt and ambulance notes referred to the Claimant wearing a belt but being ‘out-of-position’ (sitting sideways with pillow against the door).”
[78] “The Claimant’s injuries are not consistent with wearing a properly adjusted and securely fastened three-point seatbelt. I would anticipate that the Claimant would not have suffered a head impact had she been wearing a properly adjusted and securely fastened three-point seatbelt. The head injuries (maxilla fracture and superficial injuries) are consistent with a blunt force impact to the head. No superficial abdominal or thoracic injuries were recorded and the thoracic and abdominal injuries are more severe than I would anticipate in a low-to-moderate severity frontal collision.
i.Rib fractures may be related to seatbelt loading, but in this case, the extent of injury is indicative of blunt force loading with the vehicle interior.”

[79] “on balance, the injuries and predictable dynamics of an occupant in a frontal collision, strongly suggest that the injuries were caused by the Claimant moving forward and impacting against the vehicle interior as a result of the sudden velocity change of vehicle 2 during the collision. Had the Claimant been restrained by a three-point seatbelt, the belt would have coupled her movement to the seat during the collision as described in section 7.
i.If the Claimant was out-of-position as described, the seatbelt would not have controlled her upper body movement and would have been less efficient at controlling the movement of the pelvis.
ii.Depending on the position of the sash component of the seatbelt, the thorax injuries may have been caused by the belt or through other direct impacts.”

[87] “Thoracic injuries. These injuries were most likely caused by a moderate-to-high magnitude severity direct impact to the thorax.
i.Had the Claimant been wearing a seatbelt, it is very unlikely that a moderate-to-high magnitude severity direct impact to the thorax would have occurred. Therefore, a seatbelt would have reduced the risk of these injuries.
ii.Had the Claimant been wearing a seatbelt, it is likely that she would have suffered some form of soft tissue injury or soreness to the anterior chest and abdomen, related to the seatbelt loading, and it is possible that she may have suffered injury to the left clavicle and/or a few ribs. The Claimant was 57-years old. Due to the seatbelt loading, bone strength due to age and other factors, rib fractures may have occurred, albeit reduced in complexity and severity. It is plausible that an AIS severity 3 thoracic injury could occur, as this involves a minimum of three rib fractures.”

[88] “Left shoulder injury. If it is accepted that the left shoulder injury was caused in the Incident, it is likely that had the Claimant worn a seatbelt, the left shoulder would have been uninjured. The medical notes refer to acromioclavicular joint arthritis and a rotator cuff condition. These are typically not impact related injuries. The rotator cuff can be damaged in a single event, e.g. shoulder dislocation/subluxation. Had the Claimant been wearing a seatbelt, the left shoulder would not have been dislocated/subluxed and would not have been moved into an abnormal posture. If the Claimant reached forward to brace herself, while wearing a seatbelt, the seatbelt would control and manage the momentum of the trunk and forces applied through the arms would have been limited and unlikely to cause injury.”
[89] “Knee laceration and right wrist fracture. These injuries were most likely caused by a moderate-to-high magnitude severity direct impact against the knee and right hand. The knee may have contacted the dashboard or console. For the reasons already presented, had the Claimant been wearing a seatbelt, these injuries are unlikely.
i.Had the Claimant been wearing a seatbelt, it is plausible that she may have suffered a wrist sprain or soft tissue injury and/or superficial injury to the knee, e.g. contusion/abrasion/small laceration.”

74.Dr McIntosh summarises his opinion at [91]:
“The Claimant was the front passenger in a prime mover that was involved in a frontal collision. The change in velocity of the Claimant’s vehicle was likely less than 30 km/h.
It is very unlikely that the Claimant was wearing a properly adjusted and securely fastened three-point seatbelt. However, the Claimant may have had the seatbelt securely fastened, but was ‘out of position’ so that the seatbelt offered only limited protection.
The Claimant’s failure to wear a seatbelt, or properly adjusted seatbelt, is causative and contributed to the injuries alleged to have been sustained by the Claimant.
Had the Claimant been wearing a properly adjusted and securely fastened three-point seatbelt, her injuries would have been reduced in complexity and severity.
In summary, had the Claimant been wearing a properly adjusted and securely fastened three-point seatbelt, she may have suffered from a range of AIS severity 1 (minor) injuries to the spine (soft tissue), thorax and extremities and/or AIS 2 or 3 thoracic injuries (Abbreviated Injury Scale).
It is plausible that an AIS severity 3 thoracic injury could occur, as this involves a minimum of three rib fractures. The number and complexity of the rib fractures would have been reduced by wearing a securely fastened and properly adjusted seatbelt.
As a result of not wearing a seatbelt, the Claimant suffered AIS severity 2 (moderate) injuries and AIS severity 3 (serious) injuries.
Had the Claimant been wearing a properly adjusted and securely fastened three-point seatbelt, it is very unlikely that she would have suffered head injuries, multiple rib and sternum fractures; abdominal injuries and right wrist and hand injuries.”

Contributory Negligence – Part 2 - Anderson
Report of Adjunct Associate Professor Robert Anderson
75.Adjunct Associate Professor Robert Anderson reported on 11 December 2023 at the request of Mrs Dolbel’s solicitor. His qualifications, set out at [2] of the report, qualify him to give expert opinion on the liability issues.
76.Professor Anderson sets out the general circumstances and his assumptions of fact at [4].
77.Assumption of fact 4.6 states:
“Mrs Dolbel has instructed that, at the moment of impact, she was wearing her seat belt, and it was properly adjusted against her body.”

78.Assumption of fact 6.3 states:
“She described wearing her seatbelt loosely and leaning against the door with a pillow:
i.When l was travelling in the truck I was wearing my seatbelt. It was loosely fitted, and I was leaning up against the passenger side door with a pillow behind my back.”

79.Assumptions of fact 6.5 says:
“[6.5] In her second statement (25 October 2023) she refers to and clarifies the description of the seatbelt being loosely fitted and her position leaning against the passenger side door with a pillow behind her back.
[6.5.1.] Mrs. Dolbel describes her actions upon seeing the approaching car; she sat upright, and the seatbelt was then properly adjusted against her chest, and she was fully awake and terrified. At the moment of impact, she was not leaning against the side door as before but was bracing herself for the collision by leaning forward with her right hand against the prime mover’s dashboard.
What occurred when I saw the car coming towards us was that I sat upright in my seat. The seatbelt then was properly adjusted against my chest. At the time of impact I was not leaning up against the side door as I had been at a prior time. I was wide awake and terrified when I saw the car coming towards us. As I have said, I sat upright with the seatbelt then secured firmly against my chest. I recall leaning forward and placing the palm of my right hand against the dash of the truck. I was able to reach that position of the truck with the palm of my right hand whilst leaning only slightly forward. I was bracing myself for the impact which I knew was coming. Indeed in the accident, I fractured the middle finger of my right hand due to it being in front of my body against the dash. I also suffered ligament damage/lacerations to my right hand/wrist. A fracture to the palm of my right hand which was plastered with a plate inserted in the palm of my right hand along with a fracture to the right middle finger.
The impact was like an explosion. I can remember being tossed around in my seat, moving about but still secured by my seatbelt.
I suffered facial injury. I was bleeding from my face/mouth. I had laceration to my left lower leg and that was due to the impact of those parts of my body against the dash/windscreen that was forced into and onto my whilst secured in my seat. I believe that the left side of my head/face struck the left window/door of the truck.”

80.At [8.1.1] Professor Anderson noted that the police report says Mrs Dolbel was wearing her seatbelt.
81.At [8.1.2] Professor Anderson notes that Mrs Dobel states she was wearing her seatbelt but sitting sideways with a pillow against the door.
82.Professor Anderson at [8.3] says the lack of damage would support Mrs Dolbel’s claim that she was wearing her seatbelt.
83.Professor Anderson then goes on to summarise the injuries Mrs Dolbel sustained and also refers to Dr Nair’s report of 1 December 2022.
84.Professor Anderson at [10] sets out his analysis of the injury mechanism:
[10.1] The pattern of injury is an indication that Mrs Dolbel was subjected to blunt trauma predominantly on her left side, consistent with movements toward the cabin side structures due to the oblique nature of the collision. The manubrium and rib fractures suggest there were blunt forces applied to the left of her thorax. These are potentially explainable by seat belt forces, particularly if the sash moved across her chest as she was thrown to the left. The presence of mild mesenteric injuries are consistent with lap belt forces.
[10.2.] Her right wrist fracture is highly consistent with the mechanism that Mrs Dolbel herself identified; that is, bracing against the dashboard with her right hand with axial forces applied along her arm during the crash.
[10.3.] The soft tissue injuries to Mrs Dolbel's lower extremities are indicative of impact to the anterior aspects of the lower legs. This might suggest forward movement into the lower dash, but I also note the presence of objects strewn around her seating position and also the presence of a thin-walled plastic document holder on the lower dash, which appears generally undamaged, suggesting that the degree of forward motion was unlikely to have been excessive.

85.Professor Anderson refers to the report of Dr McIntosh relied upon by the insurer.
86.Professor Anderson criticises Dr McIntosh’s assumptions of fact and his analysis.
87.Professor Anderson notes that Dr McIntosh asserts:
[11.19] “That Mrs Dolbel's injuries were exacerbated because she was out of position at the time of the collision. He bases the assumption that Mrs Dolbel was out of position based on the early narratives in the factual evidence. However, Mrs Dolbel later recounted that, despite initially leaning against the door, she sat upright before the collision. She states that she was fully aware of the situation, screaming and bracing herself with her hand on the dashboard. Given the truck swerved to the right just before the collision, it is plausible that the centripetal forces caused Mrs Dolbel's upper body to sway to the left, with her right hand against the dashboard. I contend that this does not constitute being ‘out-of-position’ in the way Dr. McIntosh suggests.”
[11.20] “The term "out-of-position" in crash safety, particularly in cases leading to increased injury, typically refers to postures like reclining in a seat or leaning against the dashboard. In real world scenarios, "non-nominal" positions, which are common, are not necessarily due to deliberate positioning by the occupant but can result from the physical forces exerted during pre-crash manoeuvres.”
[11.21] “Notably, studies on out-of-position occupants focus on the effects of reclined seating. This posture does increase the risk of injury to a significant extent. Out-of-position occupants reclined in their seats can experience excessive forward excursion and submarining injuries. However, it would be incorrect to apply these findings to an occupant leaning against a door and otherwise correctly restrained. The few studies related to leaning to the outboard side show no increased risk (or even slightly less risk). Bose et al. (2010) examined this posture and several other postures with crash simulation using a detailed computer model of the human body. The overall injury "cost" of leaning to the outboard side during the simulated frontal collision was a third less than the nominal sitting position, likely due to improved engagement with the belt. Adam and Untaroiu (2011)8 also showed that leaning outboard reduces overall injury risks relative to the nominal position while leaning inboard increases overall injury risk. McMurray et al (2018) considered crashes recorded in the US National Accident Sampling System in which there were occupants with out-of-position postures. These included occupants lying on or across the seat and sitting sideways or turned. Most of these occupants were in the rear seat. There was evidence of increased odds of injury, but the differences in injury between the out-of-position occupants and those in normal positions were not statistically significant, with the data being consistent with a range of effects, from a slightly protective effect to increased odds of injury. McMurray et al. also considered crashes examined using the in-depth investigation program known as CIREN. However, the case numbers were small, and no conclusions could be drawn.”

88.Professor Anderson provides a summary of his report:
[12.1] “Mrs Dolbel was injured in a truck crash that occurred on 8 August 2020 on the Princes Highway, NSW, caused by the defendant's vehicle crossing into the wrong lane and colliding with the truck being driven by Mrs Dolbel's husband, Mr Dolbel. The collision is reported to have been an oblique frontal crash, causing the cabin to rotate to the right. Both Mrs and Mr Dolbel suffered serious injuries.”
[12.2] “The CTP insurer accepted Mrs Dolbel's claim but suggested contributory negligence based on a report written by Dr Andrew McIntosh. Mrs Dolbel reported being seated with her seatbelt properly adjusted at impact, contrary to Dr McIntosh's opinion that she was out of position and leaning against the door.”
[12.3] “Mrs Dolbel sustained multiple injuries, including facial and thoracic fractures, lacerations, and trauma. Her recollection of the crash dynamics aligns with the physical evidence and injury patterns, which suggest blunt trauma predominantly on her left side, consistent with an oblique collision impact. Her right wrist injuries are consistent with bracing against the dashboard, as she described. There is no evidence to indicate a forceful impact on the dash area.”
[12.4] “Dr McIntosh's report argues that Mrs Dolbel was not wearing a properly adjusted seatbelt, contributing to the severity of her injuries. He suggests a low to moderate change in velocity of the truck during the collision. However, his assumptions about the crash dynamics and how the seatbelt was being used are plausibly incorrect. His report does not consider the potential for significant cabin dynamics and the oblique nature of the crash. Additionally, his conclusions are based on general research on occupant biomechanics in frontal crashes, which may not fully apply to the specific circumstances of Mrs Dolbel's accident.”
[12.5] “Dr McIntosh's opinions on the potential change in the pattern of injury severity, assuming Mrs Dolbel had been seated in the nominal position rather than leaning against the door, are not demonstrable and are based on a presumption that Mrs Dolbel was out of position. His assumptions oversimplify the crash dynamics and do not fully consider alternative explanations for Mrs Dolbel's injuries. There is no evidence to suggest that Mrs Dolbel's position materially added to her injury risk. In my opinion, her injuries are more likely attributable to and consistent with the cabin's dynamics and the oblique nature of the crash.”

[12.6] “In summary, while Dr McIntosh assumes Mrs Dolbel's injuries were exacerbated by her posture, my opinion, based on the available evidence and crash dynamics, suggests that her injuries are plausibly consistent with her being properly restrained and the complex nature of the collision. The reasoning provided by Dr McIntosh does not fully account for these factors and is, therefore, incomplete.”

Consideration of contributory negligence
89.It is well established that with respect to liability the plaintiff bears the onus of proof, whereas with respect to contributory negligence, the onus is borne by the defendant. (CSEE Pertell v Watson (1979) 26 ALR 235 at 244 per Mason J: Boyd v Leftwich (1982) 43 ALR 280 at 281 Gibson CJ, Murphy, Wilson and Brennan J)
90.Taking into account the evidence of Mrs Dolbel in her supplementary statement of
25 October 2023 as set out in [6.5.1], which I accept, she is a credible witness and the opinion of Professor Anderson as set out in paragraph [85] noting that the onus of proof of contributory negligence remains on the defendant, I have concluded that the defendant has not discharged the onus of proof and that on the balance of probabilities, Mrs Dolbel was not guilty of negligence contributing to the cause of the accident. The question of apportionment therefore does not arise.

Submissions as to non-economic loss
91.The claimant and insurer have provided submissions in relation to non-economic loss.

Insurer’s submissions of 7 May 2025
92.I summarise the submissions of the insurer on non-economic loss by reference to paragraph numbers:
[8] – [9] The insurer conceded that the claimant's injuries are such that she is entitled to non-economic loss. The insurer references s 4.14 of the Motor Accident Injuries Act 2017 (MAI Act).
[10] The insurer, in reference to Stuttard v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 45 at [81], submits that previous awards for this head of damages can be of some guidance.
[11] – [15] The insurer references several cases:
Scott v AAI Limited t/as GIO [2023] NSWPIC 509: The claimant, aged 45, was awarded $300,000 for non-economic loss. He underwent multiple surgeries, had several months off work before returning with restrictions, and experienced ongoing permanent disabilities, including both physical and psychological symptoms.
Zjacic v AAI Limited t/as GIO [2024] NSWPIC 105: The claimant, aged 47, was awarded $300,000 for non-economic loss. He suffered from PTSD and a Major Depressive Disorder, with no treatment likely to improve his prognosis.
Walters v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 543: The claimant, aged 23, was found to likely require fusion surgery for a displaced L3 fracture and non-displaced L4 fracture. She had also endured inpatient admission due to severe PTSD, with the prognosis for that 'most guarded'. She was awarded $375,000 for non-economic loss.
Beaty v QBE Insurance (Australia) Limited [2024] NSWPIC 695: The claimant, aged 60, had endured multiple periods of hospitalization, including seven surgical procedures, with more indicated. He also struggled with psychological symptoms and was accepted to have barely left the house. He was awarded $375,000 for non-economic loss.
Brown v AAI Limited t/as AAMI [2025] NSWPIC 103: The claimant, aged 65, was awarded $375,000 in circumstances where her psychological and physical injuries had caused a significant change in her life circumstances, rendering her totally unfit for work and leading to social isolation.
[16] The insurer submits “Some salient features of the present case which should inform the allowance made for non-economic loss include:
a.the claimant still did some socialising with friends (T57:6-9), and
b.the claimant has been on holidays, including overseas around every 18 months (T39:16, T40:20). That is indicative of a reasonable level of functioning.

Claimant’s submissions of 14 May 2025
93.I summarise the submissions of Mrs Dolbel regarding non-economic loss by reference to paragraph numbers:
[1]     Mrs Dolbel acknowledged the insurer's reference to several Commission decisions concerning non-economic loss. However, the claimant submits that such decisions are not binding on the Commission.
[2]     Mrs Dolbel reiterated the detailed account of Mrs Dolbel’s injuries provided in submissions dated 23 April 2025. Notably, Mrs Dolbel sustained multiple fractures, including to her jaw, ribs, and right wrist, necessitating surgeries such as the insertion of a plate and screws in her right wrist and an acromioclavicular (AC) joint excision in her left shoulder. Additionally, she experienced nerve damage to her teeth, a dislocated right middle finger, various other injuries, and scarring. She also suffered from psychological symptoms.
[3]     Mrs Dolbel continued to endure disabilities as previously outlined. At 62 years old, nearly five years had passed since the accident. With a life expectancy exceeding 26 years, she would likely live with the effects of her ongoing disabilities for over 30 years.
[4] – [9] Mrs Dolbel referenced several Commission decisions:
Horsley v QBE Insurance (Australia) Ltd [2022] NSWPIC 387: The claimant suffered severe injuries to his right leg, including a tibial plateau fracture, meniscal injuries, ligament ruptures, and dislocation requiring reduction, along with post-traumatic stress disorder. Member Radnan awarded $400,000 for non-economic loss.
Judges v AAI Ltd t/as GIO [2021] NSWPIC 538: The claimant sustained several fractures, primarily to his right lower limb, accompanied by some psychological symptoms. Member Medland awarded $375,000 for non-economic loss.
Issa v QBE Insurance (Australia) Ltd [2022] NSWPIC 517: The claimant experienced neck injuries, including radiculopathy symptoms, along with psychological symptoms, without undergoing surgery. Member Castagnet awarded $350,000 for non-economic loss.
Kindi v AAI Ltd t/as GIO [2023] NSWPIC 254: The claimant suffered a compound fracture of his left leg, underwent various surgeries, and sustained injuries to his lower back, both shoulders, and knees, with psychological overlay. Member Patterson awarded $450,000 for non-economic loss.
Harrison v AAI Ltd t/as GIO [2023] NSWPIC 313: The claimant suffered soft tissue injuries to her left leg, left shoulder, back, and neck, along with post-traumatic stress disorder. Member Broomfield awarded $400,000 for non-economic loss.
Pearce v AAI Ltd t/as AAMI [2023] NSWPIC 595: The claimant sustained injuries to his right knee, hand, foot, ankle, shoulder, and elbow, involving significant scarring and chronic post-traumatic stress disorder. Member Ford awarded $380,000 for non-economic loss.

Damages for non-economic loss
94.The key elements of Mrs Dolbel’s solicitor’s submissions of 14 May 2025 are:
[2] Mrs Dolbel has suffered multiple fractures, underwent surgery to her right wrist and left shoulder, sustained nerve damage, dislocation and scarring and suffers from psychological symptoms.
[3] Mrs Dolbel suffers and will continue to suffer from disabilities as a result of her injuries for in excess of 30 years.

95.Mrs Dolbel’s disabilities are outlined at [3] in the claimant’s submissions of
3 August 2023.
96.The insurer submits that the claimant's requested sum of $425,000 was excessive at [17].
97.The insurer referenced previous Commission decisions to support their position [10]-[15], suggesting that an award of $275,000 would be more appropriate and consistent with prior cases.
98.The insurer submitted that Mrs Dolbel still socialised with friends and went on overseas holidays approximately every 18 months. The insurer contends these activities suggested she was functioning at a reasonable level, which should be reflected in a lower non-economic loss award.

Legislative and regulatory framework
Non-economic loss
99.Non-economic loss is defined in s 1.4 of the MAI Act to mean:
"(a)    pain and suffering;
(b)     loss of amenities of life;
(c)     loss of expectation of life, and
(d)     disfigurement"

100.The maximum that may be awarded under this head of damages has since
1 October 2024 been $654,000 (s 4.13(1)).
101.The s 4.13(1) figure is merely a cap and the claimant being entitled to non-economic loss damages they are assessed in accordance with common law principles within the confine of the cap in the matter of Hodgson v Crane [2002] NSW CA 276 (Crane) and RACQ Insurance Ltd v Motor Accidents Authority of NSW (No.2) 2014 NSW SC 1126. See also Hoffer v Brown [2009] NSW DC 32.
102.The amount of non-economic loss damages to be awarded should be proportionate to the claimant's injuries and disabilities:
"11. it is a relationship of the award to the injury and its consequences which is to be proportionate It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. …The principle to be followed .... It is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring to allow for differences between the circumstances of other cases and the circumstances of the case in hand." [Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ] [at para 11].

103.A key principle is that the amount assessed for non-economic loss should be comparable to awards of non-economic by other assessors and courts (James Hardie & Co v Newton [1977] 42 NSWLR 729 as per Handley JA at 732).
104.The amount awarded is not assessed on the basis of a percentage of the maximum but on the basis of what the appropriate dollar amount is. The non-economic loss figure awarded is not required to be proportionate to the maximum. This was rejected in Crane.
105.The degree of whole person impairment is not a reliable indicator of the severity or otherwise of the claimant's injuries. Whole person impairment is a statutory method of assessing entitlement. It does not directly measure incapacity, pain and suffering.

Consideration of non-economic loss (NEL) damages
106.Mrs Dolbel was, at the time of this accident, a somewhat vulnerable person who was susceptible to the impact of significant trauma of a psychological nature as in fact happened to her and described by Dr Chaudry. (See Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 where the primary judge applied the Common Law principle of eggshell skull).
107.The tortfeasor had to take the claimant as it found her. This case is an illustration of the 'eggshell skull' principle.
108.
This accident was clearly a significant accident and a very traumatic accident for

Mrs Dolbel and for her husband. The offending driver was successful in his attempt to commit suicide, and Mrs Dolbel had justification for believing that her husband may have died in the accident.
109.The psychological trauma which Mrs Dolbel suffered from was, however, only one aspect of her extensive injuries.
110.In addition to psychological trauma, which still impacts Mrs Dolbel, she continues to suffer from the effects of her physical injuries.
111.The injuries and disabilities have been set out extensively in this decision.
112.Although the psychological consequences of this accident are not as significant as the physical consequences, Mrs Dolbel was referred to a psychologist, Angela Portillo, with whom she had many sessions before she ceased seeing her in early 2022.
113.The impact of this accident psychologically, noting that the other driver was successful in his attempt to commit suicide and noting that at one stage she believed her husband might be dead, should not be discounted as having little or no significance.
114.As noted above at [50]-[51] of the statement of Mrs Dolbel dated 1 August 2023,
Mrs Dolbel says that she still struggles with thinking about the accident, gets upset in traffic, has poor sleep, dreams, memories, and nightmares about what happened.
115.I assess damages for non-economic loss to be $415,000.

PAST ECONOMIC LOSS
Principles and Case Law
116.The fundamental principle for assessing or awarding damages to an injured person is that a Tribunal should assess damages so that they represent no more nor less than the persons’ actual loss: Livingstone v Rawyards Coal Co [1880] UKHL 3.
117.Damages for personal injury are given on a once and for all basis irrespective of whether the person’s condition worsens or improves.
118.In cases such as Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined is whether a claimant has sustained a loss or diminution in earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard for the provisions of Div 4.2 of the MAI Act.

Past economic loss – the evidence
119.Mrs Dolbel gave evidence at the Assessment Conference.
120.
The following is taken from submissions made on behalf of Mrs Dolbel of

23 April 2025.
121.Mrs Dolbel stated:
(a)    She and her husband had bought a bakery business, and she had worked in the bakery for some 14 years before selling it (T15.24).
(b)    Initially, she believed they had sold that business in 2019, but she conceded in the cross-examination that the business may have been sold in 2017 (T32.32).
(c)    Mrs Dolbel said in evidence that she stayed on and worked for the new owner (T33.03) and had continued working in the bakery until November 2019 (T16.05).
(d)    She said that whilst working for the new owner of the baker, she worked 10 to 15 hours per week (T81.28) and was being paid around $15 an hour (T82.04).
(e)    She further said that she then worked at a sandwich shop in the local shopping centre for a while (T16.13).
(f)    She then said that she decided she would look at purchasing a coffee shop, coffee van or sandwich shop (T16.20).
(g)    Mrs Dolbel then went on to say that she had been working at the bakery for some 14 years, and that she wanted a break for perhaps 12 months, to see how the trucking business went, before starting to look for something else (T17.05).
(h)    Mrs Dolbel then went on to say that she was working in her husband’s trucking business at the time of the accident, doing bookwork, wages, picking up parts, phone calls and the like (T17.16).
(i)    Mrs Dolbel continued to say that she was working maybe 16 to 20 hours per week in the business (T27.34).
(j)    Mrs Dolbel continued that she could perform her duties whenever she felt like it throughout the course of the day and that there was a fair degree of flexibility (T28.29).
(k)    The business had three (3) trucks operating as at the date of the accident (T27.07).

122.In respect of her post-accident employment, Mrs Dolbel noted the following:
(a)    Mrs Dolbel stated that she was able to get back to doing some work in her husband’s business (T18.21).
(b)    She conceded that she was only able to do “a little bit but not a lot” (T18.21).
(c)    She noted that she no longer did a lot of the bookwork, and her daughter had taken over that work (T18.22).
(d)    Mrs Dolbel said that she found it hard to type on the computer (T18.23).
(e)    She said that she no longer had to do the wages as her husband’s business has reduced to one (1) truck as he was the only one working and was semi-retired (T18.25).
(f)    Mrs Dolbel received statutory benefits from the third-party insurer between October 2020 and March 2023 (T18.30).
(g)    When Mrs Dolbel returned to assisting in her husband’s business, she was doing some things in the business “but not what I was doing before” (T49.30). She was helping her daughter (T49.21).
(h)    Further, she said that her husband had downsized the business to only having one truck for the past 14 months (T60.01) and that her husband only works 3 to 4 months per year (T60.04).

123.Mrs Dolbel was asked about her intentions regarding buying and working in a café, or a similar business, and she said at (T17.29):
“I probably – well, I’m pretty fit for my age, I think, but I’m from a working class family, like my family owned their own business. My dad has passed away but my mum and my brother run a transport company which they’ve had for 50 years next year. My mum’s 82 and my mum still works so I just – I’ve got that in my blood that I’ve always worked. I’ve worked from Year 10, I’ve had part-time jobs and fulltime jobs all through until I had my children and then once the kids were young I stayed a home, has a part-time job and then once they got to school that’s when we started buying the business and worked fulltime.”

124.Mrs Dolbel was asked about a proposed retirement age, and she gave evidence at (T18.12):
“I’d say probably maybe late seventies. Even if I had a business I would’ve kept the business and I still would’ve done hours per week, maybe slowed down a little bit but still would’ve had a business.”

125.Mrs Dolbel gave evidence during cross-examination that her husband liked his involvement in driving trucks, and for that reason when they were going away they would only go for a week to 10 days because his passion was his trucks.

Claimant’s statement on past economic loss
126.Mrs Dolbel sets out her employment history at [10] of her statement:
“● In a fruit shop in partnership with my husband (Wayne) - Karen 's Fruit Freight
·        In or about 2006 Wayne and I purchased a bakery business at Unanderra -Leisure Coast Bakery. Wayne worked in that business for a time and then I worked/ran the business by myself.
·        The business was sold in June 2019. For a time I continued on to assist the new purchaser and worked in that business as an employee usually 20 – 30 hours per week depending upon the needs of the owner.
·        I ceased involvement with the bakery in about November 2019.
·        I note that when Wayne commenced running KNW Transport in or about 2007, I helped in that business doing banking, wages, bookwork, BAS, group certificates and the like.
·        At the time of the subject accident, I was working solely in and for the business KNW Transport. Although I was only working for the business at the time of the accident I was looking at purchasing a coffee shop, sandwich shop or something similar. I missed working with the public in that way. I enjoyed my time in the bakery and was looking to go back into that type of work. When I worked in the bakery not only did I serve customers but I also baked. This was quite heavy work.”

Submissions of the claimant in respect to past economic loss
127.In Mrs Dolbel’s submissions of 23 April 2025 at [38]-[42], the submission referred to the opinion of Dr Nair, orthopaedic surgeon.
128.
At [39], the submission refers to the first report of Dr Nair of 1 December 2022 when

Dr Nair diagnosed an aggravation of the left shoulder, subacromial impingement, and intraarticular right distal radius fracture, and a likely aggravation of previously asymptomatic cervical spondylosis.

129.At [40], the submission referred to the history taken by Dr Nair that at the time of the accident, Mrs Dolbel was working in the family business performing tasks such as banking, wages, bookkeeping and other tasks. He noted that she had not worked since the accident, and he expressed the opinion that she was totally and permanently incapacitated “within the limits of her education and work experience.”
130.At [41], Dr Nair stated:
“Current symptoms are pain and stiffness in the right wrist. There is pain in the right middle finger and ring finger. There is stiffness in the left shoulder. There is pain and stiffness in the subaxial cervical spine. She previously had pain and paraesthesia in the left knee region, however, this is now resolved”

131.
At [46]-[50], the submission refers to the opinion of Medical Assessor Woo who examined Mrs Dolbel on 30 August 2024. The history taken included that it was

Mrs Dolbel’s intention to return to a small business such as a coffee shop or sandwich shop.
132.
The submission at [48] notes the report of Medical Assessor Woo who took

Mrs Dolbel’s current symptoms:
“Ms Dolbel complains of left shoulder pain and restricted movements. She has had constant pain at the back of the left shoulder girdle radiating to the left side of her neck since the subject accident. It was thought to be left shoulder pain radiating to 12 the neck initially. The pain also radiates to the left upper arm and forearm. The fingers of the left hand are not affected.
She has pain in the right hand over the dorsum of the right and middle fingers. The movements in the right-hand fingers have improved but she is still unable to make a full grip of the middle finger.
She has no pain in her right wrist.
She has problem with washing her hair, cleaning the bathroom and making bed, related to her neck pain and left shoulder pain and restricted movements.”

133.At [60], the submission sets out Mrs Dolbel’s lengthy list of injuries and disabilities.
134.The submission continues at [62]-[73] which I briefly summarise as follows:
[62] At the time of the accident, Mrs Dolbel was:
(a)in good health;
(b)actively assisting in the family business, and
(c)off siding for her husband and carrying out additional clerical duties.

[63] Had a fourteen-year background running a small business, it was her intention to return to small business activity. There has not only been a loss of income from KNW Transport, but also a significant loss/loss of opportunity/diminution of earning capacity
[64] The submission sets out a list of restrictions Mrs Dolbel continues to suffer from as a result of the accident.
[65] Mrs Dolbel submits the injuries and disabilities restrict her capacity to operate and run a small business.
[66] Mrs Dolbel submits that although she has been able to resume some clerical duties, these are limited and she has required assistance from her daughter.
[67] The submission points out that Mrs Dolbel’s husband’s business has less opportunity for her to engage as the work simply does not exist anymore. The business had gone from a thriving business of three trucks and drivers, to one truck driven solely by her husband.
[68] The submission argues that but for the accident, and for the purposes of s 4.7 of the MAI Act, her most likely future circumstances were:
(a) she would have continued working in her husband’s trucking business for a further six months;
(b) then would have purchased either a café, coffee van, sandwich business or similar, and
(c) she would have worked in her own business until her late seventies and thereafter reduced her hours but maintained the business.

[69] The submission continues that Mrs Dolbel is now totally incapacitated for all forms of employment for which she is reasonably suited by way of education, training, and experience.
[70] Mrs Dolbel submits her residual earning capacity was not of any significance. In any event, her husband’s business has diminished significantly since the accident, and the amount of work required to be performed has reduced. She would not be able to find alternative employment with an employer prepared to allow her to work reduced hours at her convenience.
[71] The submission continues that it is apparent from the insurer’s list of payments that Mrs Dolbel’s net weekly earnings were assessed to be $304.
[72] But for the accident, Mrs Dolbel submits that she would most likely have continued to work in her husband’s business for 6 months, giving a loss of earnings for that period of about $8,000. There would then be a period of approximately four years and three months of further past economic loss and a period of 16 years from the present until a notional retirement age of 78 years.
[73] Mrs Dolbel submits that the buffer of $300,000 for past and future economic loss as contained in the claimant's original schedule of damages is entirely appropriate.

Insurer’s evidence on economic loss
135.The insurer relies, among other things, on the report of Mr Lance Kahler, Forensic Accountant, of 13 November 2023.
136.At that stage, Mrs Dolbel’s claim for economic loss was put at a weekly loss of $500, plus a buffer of $150,000 as a result of the lost opportunity to conduct her own small coffee shop or sandwich shop business.
137.The report, at [3.10], summarises Mrs Dolbel’s wages from the trucking company

Financial Year

Source

Ref

Amount

Year ended 30 June 2017

Sch. B

a

Nil

Year ended 30 June 2018

Sch. B

b

Nil

Year ended 30 June 2019

Table 3

c

$17,970

Year ended 30 June 2020

Table 3

d

$19,455

Year ended 30 June 2021

Sch. B

e

$7,440

138.Mrs Dolbel’s income tax return showed that she had not received any wages from the company in the years ended 30 June 2017 or 30 June 2018.
139.It then noted at [3.11] that the wages paid to Mrs Dolbel for the financial year ended 2019 (for which estimates were used as the tax returns had not been provided) were $17,970 for 2019 and $19,455 for the year ended 2020.
140.The report notes at [3.12] that the lack of wages paid to Mrs Dolbel during the years ended 30 June 2017 and 30 June 2018 is consistent with her reportedly working 63 hours per week in the baking business at that stage.
141.The report estimates that after the sale of the baker business, Mrs Dolbel’s contribution to the transport business increased, and Mr Kahler estimated her wages at about $19,000 per annum for the years ended 30 June 2019 and 30 June 2020. He assumed that the value of Mrs Dolbel’s clerical duties was about $25 per hour.
142.Mr Kahler estimates Mrs Dolbel’s pre- and post-accident earnings at [3.15]. He sets these out in table 5 on page 10:

Source	Ref.	2017	2018	2019	2020	2021	2022
Wages from KNW Transport	Table 3	a	-	-	17,970	19,455	7,440	-
Partnership wages	Sch. B	b	6,300	-	-	-	-	-
Loss from partnership	Sch. B	c	(15,252)	(543)	-	-	-	-
Total earnings before tax	d = a + b + c	($8,952)	($543)	$17,970	$19,455	$7,440	-

143.
Mr Kahler notes at [3.16](b) that for the two years immediately before the accident,

Mrs Dolbel’s only source of income was wages from the transport business and these averaged $18,713 before tax, or an average of about $360 per week before tax.
144.Mr Kahler opines at [4.7] that with respect to the alleged loss of opportunity to open a coffee/sandwich shop, Mrs Dolbel states that the sandwich shop business was sold in June 2019. However, the GST registration was cancelled in September 2017 and (as conceded in the assessment conference), the bakery business was probably sold in 2017.
145.Assuming that was in fact the case, a significant period of time had already passed since the sale, and by the time of the accident in August 2020, Mrs Dolbel had not been in conduct of a food and beverage business for almost three years, and no particular arrangements had been made to advance that intention.

Insurer’s submissions
146.At [23] of the submissions of 28 August 2023, the insurer summarised the income tax returns provided by Mrs Dolbel reflecting the earnings in the table.

Income Tax Year

Taxable Income

2016

$13,887

2017

$8,648

2018

$150

2019

$48,101

2020

$45,932

2021

$22,427

2022

$13,513

147.Further, at [11], the submissions dated 14 February 2025 relied on the conclusions reached by Mr Kahler:
(a)    that, during the two years immediately prior to the accident, the claimant’s estimated income was around $360 per week from the family transport business;
(b)    the estimated wages paid to Mrs Dolbel pre-accident were similar to what would have been paid to a clerical worker working around 16 ½ hours per week on a commercial basis;
(c)    for the financial years 2017 and 2018, the bakery business in which the claimant and her husband were partners was not profitable;
(d)    the bakery business was probably sold in September 2017, and
(e)    Mrs Dolbel had made no arrangements to advance her intention to commence a coffee shop/sandwich shop.

148.
At [12] of the 14 February 2025 submissions, Dr Home was of the opinion that

Mrs Dolbel was fit to resume her pre-accident employment as a bookkeeper for her husband’s business working approximately 30 hours a month. Further, he also considered she was fit for fulltime work of a sedentary, semi-sedentary or light manual nature. He believed she would likely experience difficulty in undertaking alternative work that involved heavy bimanual lifting and in particular lifting with her left arm above shoulder height.
149.The submission continued at [14], referring to the occupational physician’s opinion that there was no reason for Mrs Dolbel’s restricted capacity as certified in the certificates of capacity.
150.At [14], the submission noted that Mrs Dolbel’s 2023 income tax return reflects an income of $11,543, equivalent to earnings of about $222 net per week.
CONSIDERATION OF PAST ECONOMIC LOSS
Impairment
151.There is good evidence that Mrs Dolbel has, as a result of the accident, sustained an impairment which has been (and will be) productive of economic loss.
152.Mrs Dolbel relies upon the evidence of Dr Nair, orthopaedic surgeon, who in his report of 1 December 2022, referred to the injury to her right wrist and to the aggravation of her previously asymptomatic cervical spondylosis. Dr Nair expressed the opinion that Mrs Dolbel was totally and permanently incapacitated “within the limits of her education and work experience.”
153.In a further report of 25 July 2023, Dr Nair referred to Mrs Dolbel’s symptoms of pain and stiffness in her right wrist, pain in the right middle finger and ring finger, and stiffness in the left shoulder, as well as pain and stiffness in the sub-axial cervical region.
154.Medical Assessor Woo, in his assessment of 30 August 2024, referred to Mrs Dolbel’s complaints of left shoulder pain and restricted movement. He noted that she complained of constant pain at the back of her left shoulder girdle radiating to the left side of her neck since the accident. He noted that the pain also radiated to her left upper limb and forearm, and that as a result of the neck pain and left shoulder pain, she had restricted movements in those areas.
155.Medical Assessor Woo concluded that she had a soft-tissue injury with non-verifiable radicular complaints to the cervical spine. She suffered from a finger fracture and dislocation to the middle finger of her right hand, and a left shoulder injury requiring an excision of the AC joint.
156.Medical Assessor Woo noted that her right wrist required an open-reduction and internal fixation for the distal radial fracture.
157.Mrs Dolbel complains of continuing symptoms, all of which I accept on the balance of probabilities to reflect her actual objective situation, including inability to raise her left arm above shoulder height, pain and discomfort and restriction of function in the right wrist, loss of strength, and loss of grip.
158.I accept that on the balance of probabilities, these symptoms and the restrictions associated with them, constitute a diminution in the capacity to derive an income from doing work such as operating a computer, doing the work of a cook, baker, and coffee-maker, and the work of operating a small business where personal involvement of a physical nature is required.
159.Mrs Dolbel has claimed damages by way of a buffer for past and future economic loss as contained in the claimant’s original schedule of damages as being entirely appropriate, a claim which takes into account that Mrs Dolbel’s net weekly earnings should be assessed at about $300 (consistently with the estimate by Lance Kahler).
160.As noted above in the submissions, Mrs Dolbel’s position is that the evidence justifies the proposition that she probably would have remained working in her husband’s business for a further period of six months (that is after the accident had it not taken place). That would mean a loss of earnings for that period of about $8,000.
161.The submission proceeds that there would then have been a period of about four years and three months of further past economic loss and a period of 16 years from the present until a nominal retirement age of 78 years.
162.I have referred earlier to s 4.7 of the MAI Act which provides:

“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.”

163.The assumptions of fact which were urged upon me were set out at paragraph 68, page 18, of that submission.
Regulatory framework and caselaw for future economic loss
164.Section 4.7 of the MAI Act, 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.”

165.I make the following assumptions of fact as to the future:
(a)    Mrs Dolbel would have continued in reasonably good health. She had some psychiatric symptoms to which I have referred, but it does not appear that there was any serious psychiatric symptomology before the accident;
(b)    Mrs Dolbel would have had the ordinary problems of aging, giving that she was 57 years at the time of the accident and is now 62 years old. She would have been, as a matter of common sense, subject to usual problems of aging;
(c)    Mrs Dolbel probably would have continued helping her husband in the trucking business for at least six months because that was what she was doing at the time of the accident;
(d)    there is no evidence as to how long she would have continued to do it, but one may assume that she would have continued to help in the trucking business with bookkeeping as long as her husband ran the business (as to which there is no good evidence except for the fact that he loved to be a trucker and probably would have tried to continue being one as long he could);
(e)    Mrs Dolbel would not have, on the balance of probabilities, pursued small business as a baker, operating a café, coffee van, sandwich business or similar. She had not been involved in that sort of business since about September 2017, which is almost three years before the accident. During the period of almost three years, until the accident, there was no activity on the part of her which indicated any intention to look for a business. She did not, for example, do any research into possible businesses to purchase of the nature in which she was interested. If she did, there was no evidence of it. Furthermore, as a matter of common sense, it is one thing to set up a new business some years previously and then to do it again in her sixties, and
(f)    on the balance of probabilities, I conclude that if there was any such intention, it was only aspirational. I do not believe that a case has been made on the balance of probabilities for it to be considered as part of a buffer for past and future economic loss.

166.In IAG Ltd t/as NRMA Insurance v Damian Mares [2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:
“(a) s 126 does not prevent the award of a cushion or buffer for future economic loss [para 68];
(b) the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:
(1) Assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);
(2) Assess the claimant’s economic prospects as a consequence of the accident;
(3) Compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;
(4) Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred;
(5) Include a statement of the assumptions made as the claimant’s most likely future circumstances and the appropriate percentage adjustment as to the above formulation see also Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].”

How the Court deals with the assumptions of fact
167.Basten JA delivering the judgement of the Court also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:
“The assumptions or events upon which a baseline may commonly be calculated include:
(a) identification of the skills, training and experience of the plaintiff, as at the date of the accident;
(b) the work he or she was undertaking immediately prior to the accident;
(c) the likelihood that he or she would have continued in such employment, but for the accident;
(d) the possibility that he or she might have obtained promotion or other benefits, but for the accident;
(e) the age to which he or she was likely to have worked in that employment, and
(f) the possibility that the employment would not have been continuous."

168.There is considerable authority on the meaning of “most likely future circumstances” discussed by McClellan AJA in Penrith City Council v Parkes [2004] NSWCA 201.
169.Working out the most likely future circumstances of a claimant, but for the injury, involves the Court assessing the prospects of the claimant gaining or remaining in employment, or earning income from self-employment. It has been held that “most likely” is not the same as the balance of probabilities.

170.Rather than establishing the most likely circumstances as a matter of balance of probabilities, the Court is required to look at the range of possible outcomes which may have occurred had the claimant not been injured, and to assess the future economic loss on the basis of whatever of those scenarios is most likely to have occurred.
171.In this particular case, it is impossible to determine with precision what the future circumstances as to economic loss would have been.
172.The reasons why this is so, is due to a combination of a number of factors, but the most significant would be the following:
(a)    the age of both Mrs Dolbel and her husband;
(b)    how long he would have been able to continue to operate a fairly (as a matter of common sense) physically demanding job such as being a driver of semi-trailers over long distances, requiring not only physical good health, but mental fortitude and concentration;
(c)    with advancing age, how long Mr Dolbel’s “passion” for being a semi-trailer driver/trucker would have persisted, and
(d)    as a matter of common sense, time is not neutral when people reach their sixties and beyond, and passions can wane very quickly when things become harder because of advancing age.

173.This is a case where I cannot determine the total of the past and future economic loss with precision, and it is therefore my intention to determine a buffer. In doing so, I will take into account vicissitudes in respect of the future, and will build in a reduction of 15% into the future component of the buffer.
174.The authorities which permit me to assess a buffer in circumstances where a loss is likely but the amount cannot be determined with precision are: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302, Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579; QBE Insurance (Australia) Ltd v Volokhova [2014] NSWSC 726, IAG Limited t/as NRMA Insurance v Al-Kilany [2017] NSWSC 342 (30 March 2017), Sretenovic v Reed [2009] NSWCA 280 per McColl JA at paras 79-86, Allianz Australia Insurance Limited v Sprod (2012) 81 NSWSC 626, Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325 (16 September 2014) and Allianz Australia Insurance Limited v Zein [2016] NSWSC 196; IAG Limited v Priestley [2019] NSWSC 1185 per Fagan J (criticising at [24] the decision to award a buffer for future economic loss devoid of explanation where the assessor had said that he had taken into account a number of variables but did not quantify them in his assessment of the buffer nor did he determine the claimant’s most likely future career alternatives or make any findings as to her weekly work hours and the reduction of same as a result of her impairment).
175.It is reasonable to adopt a single buffer for past and future economic loss. A buffer is appropriate given the uncertainty which is primarily the result of the fact that both
Mrs Dolbel and her husband are nearing old-age, with all its uncertainties in terms of health and energy.
176.I have come to the view that the submissions as to the period of time they would have worked and generated income from the trucking business or otherwise is unrealistic and, at best, aspirational.
177.Given the ravages of old-age, who can say how much energy Mrs Dolbel and her husband would have as they entered old-age. It is one thing to hope to work for many years into the future, and it is another thing altogether to be able to say on the balance of probabilities you will be able to work into old age.
178.I have decided in the circumstances that it is reasonable to award a buffer covering both past and future economic loss and taking into account vicissitudes of $150,000.

COSTS
179.The Application for damages was prepared in August 2023 and I accept that a conference with the claimant was necessary for the completion of that Application.
180.I accept that there have been five requests for particulars from the insurer, each requiring conferences with Mrs Dolbel to obtain instructions.
181.There are four statements of the claimant, each one of which required a conference.
182.The insurer alleged contributory negligence and obtained an expert’s report on liability to support that allegation.
183.I accept that this issue required a conference with the claimant to obtain instructions, and also a conference with counsel.
184.The parties took part in a settlement conference. This also required a conference with Mrs Dolbel and counsel.
185.The case proceeded to an assessment conference on 17 March 2025. A conference with Mrs Dolbel was required in preparation for hearing.
186.In summary, 10 hours for conferences is fair and reasonable.
Summary of damages
187.The summary of damages:
Buffer for past and future economic loss   $150,000
Fox v Wood   $5,414
Damages for non-economic loss               $415,000
Total:   $570,414

Costs claimed
188.I assess the costs as follows:
Stage 1 as claimed: 2.92 units at $119.96 = $350 plus GST
Stage 2 as claimed: 4.32 units at $119.96 = $518 plus GST
Stage 3 as claimed at 114.48 monetary units (mu) plus 2% = $23,664 plus GST
(1 monetary unit = $124.53)
Stage 4 as claimed at 2 cents per dollar = $11,408 plus GST
Representation at an Assessment Conference: 30 units at $119.96 = $3,599 plus GST
Additional conference time (12 conferences): 10 hours claimed at $338= $3,380 plus GST
Disbursements
Total of disbursements as per the respondent’s Assessment of Costs pursuant to scale (regulated): $10,161.80 inclusive of GST
Total of disbursements as per the respondent’s Assessment of Costs pursuant to scale (non-regulated): $10,248.93 inclusive of GST

189.The amount of Mrs Dolbel’s costs, taking into account the amount of damages assessed in respect of this claim, assessed under the MAI Act is $67,621.63 (including GST).
Total
190.Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages and costs for this claim as $570,414.

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dolbel v Allianz Australia Insurance Limited [2025] NSWPIC 290
CLAIMANT:	Dolbel
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Terrence Stern OAM
DATE OF DECISION:	23 June 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant was injured in a motor vehicle accident; insurer admitted liability but alleged contributory negligence; assessment of damages; claim for damages pursuant to section 7.36; non-economic and economic loss damages for physical and psychological injury; past economic loss; Division 4.2 applied; Livingstone v Rawyards Coal Co applied; Medlin v State Government Insurance Commission applied; Husher v Husher applied; future economic loss; Nominal Defendant v Livaja applied; section 4.7 applied; IAG Ltd t/as NRMA Insurance v Damian Mares applied; Allianz Australia Insurance Ltd v Kerr applied; non-economic loss; section 4.11; Hodgson v Crane applied; Planet Fisheries Pty Ltd v La Rosa applied; James Hardie & Co v Newton applied; Coles Supermarkets Australia Pty Ltd v Meneghello applied; Held – damages non-economic loss, buffer for past and future economic loss, and Fox v Wood assessed at $570,414; claimant’s costs assessed at $67,621.63 inclusive of GST.
DETERMINATIONS MADE:	1. Damages assessed in the amount of $570,414.

Financial Year	Source	Ref	Amount
Year ended 30 June 2017	Sch. B	a	Nil
Year ended 30 June 2018	Sch. B	b	Nil
Year ended 30 June 2019	Table 3	c	$17,970
Year ended 30 June 2020	Table 3	d	$19,455
Year ended 30 June 2021	Sch. B	e	$7,440

Income Tax Year	Taxable Income
2016	$13,887
2017	$8,648
2018	$150
2019	$48,101
2020	$45,932
2021	$22,427
2022	$13,513