Graydon v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Graydon v AAI Limited t/as GIO [2023] NSWPIC 110
Claimant:	Caroline Graydon
insurer:	AAI Limited t/as GIO
Member:	Shana Radnan
DATE OF DECISION:	16 March 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; contributory negligence in issue; non-economic loss of $400,000 agreed; past economic losses agreed; future economic loss; most likely future circumstances but for the accident; catastrophic injuries; amputation of right leg above knee; Held – no contributory negligence; damages assessed according to sub-sections 7.36(3)-(4).
determinations made:	1. On the issue of liability for the claim, I find no contributory negligence on the part of the claimant. The GIO’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017 (the Act), I specify the amount of damages for this claim as $1,319,000.47 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $102,557.88 inclusive of GST. 4. The insurer is to have credit for weekly statutory payments pursuant to s3.40 in the sum of $255,033.25.

STATEMENT OF REASONS

Background

On 24 November 2018 the claimant was involved in a motor vehicle accident when she was riding her motorcycle in a northerly direction on the Numinbah Road, via Murwillumbah in the State of New South Wales. Numinbah Road is a road that connects Murwillumbah to the Gold Coast and the place where the accident occurred was in the State of New South Wales. The accident occurred when the claimant was riding through a left-hand corner in her direction of travel and her motorcycle collided with a trailer being towed.
The insurer admitted liability but alleged contributory negligence on the part of the claimant submitting the claimant’s conduct amounted to 50% contributory negligence.
An Assessment Conference was conducted in this matter on 8 February 2023 in Sydney.
The matters requiring assessment are limited to contributory negligence and future economic loss.
In agreement at the conclusion of the assessment conference were the following:
(a)   non-economic loss $400,000;
(b)   past economic loss $264,961, and
(c)   Income tax paid $22,677
Caroline Graydon (the claimant) was questioned at the Assessment Conference and further submissions were made by the parties.
The injuries sustained in the subject accident were not in dispute, it was accepted that she suffered the following injuries:
(a)     head trauma;
(b)     stroke
(c)     injury to right eye;
(d)     amputation of right leg above the knee;
(e)     open book fracture to the pelvis involving the surgical insertion of plates and screws;
(f)     fracture to ACL of left knee;
(g)     tendon and ligament damage to the left knee;
(h)     ligament injury to left thigh and groin;
(i)     internal bruising to right arm;
(h)     fracture to radius bone of the left wrist;
(i)     tear to the aorta requiring the insertion of a stent;
(j)     tears to the intestines requiring surgical repair;
(k)     perforated bowel;
(l)     internal bleeding;
(l)     loss of front tooth;
(m)    anxiety and depression, and
(m)    post-traumatic stress disorder.
The claimant continues to suffer the following disabilities:
(a)    constant dull pain from neck radiating down the spine;
(b)    exacerbation of neck pain by sitting in one position for extended
periods;
(c)     intermittent radiation of pain from the left shoulder to both elbows;
(d)    intermittent pain in both wrists;
(e)     restricted movement in left hand;
(f)     intermittent numbness in the little and ring fingers of both hands aggravated by activity such as typing on a keyboard or remaining in a static position;
(g)    avoidance of writing for prolonged periods due to cramping and stiffness in right hand;
(h)    body stiffness when waking;
(i)      constant pain in coccyx;
(j)     constant dull ache in left knee and ankle aggravated by activity;
(k)     intermittent tinnitus;
(l)      intermittent loss of balance due to fatigue and loss of concentration;
(m)    intermittent swelling of right leg;
(n)    intermittent phantom pain in right leg;
(o)    constant phantom sensations consisting of the sensation of pins and needles in the right foot, aching in the right calf and pain in the right knee;
(p)    fatigue in both legs;
(q)    tightness in muscle of right leg;
(r)     significant and constant right hip pain;
(s)     increased pain when transferring from a seat;
(t)     sitting intolerances due to pain;
(u)    standing intolerances due to pain;
(v)     disturbed sleep;
(w)    weight gain;
(x)     impaired peripheral vision;
(y)     vertigo;
(z)     intermittent headaches;
(aa) right eye strain when viewing a computer screen or television or
following prolonged concentration;
(bb) difficulty dressing;
(cc) inability to enjoy beach walks, swimming in the ocean and walking the dogs which the claimant previously enjoyed;
(dd) inability to enjoy pre-accident recreational activity of attending night markets and theme parks;
(ee) inability to enjoy pre-accident recreational activity of sewing;
(ff)    reduced ability to enjoy pre accident recreational activity of painting;
(gg) inability to support weight on either leg without assistance;
(hh) intermittent nausea;
(ii)     impairment to short and long term memory;
(jj)     impairment of concentration, becoming easily distracted;
(kk) anxiety and depression;
(ll)     frequent tearfulness;
(mm) panic attacks;
(nn) irritability;
(oo) feelings of self-consciousness due to physical injuries;
(pp) low mood and reduced energy, and
(qq) suicidal ideation.

The position of the parties as to quantum of damages at the Assessment Conference.

Head of Damage	Claimant	Insurer
Non-economic loss	$400,000	agreed
Past economic loss	$264,961	agreed
Tax paid (Fox v Wood)	$22,677	agreed
Future economic loss	$851,352	$353,523
Contributory negligence	Nil	50%
Total	$1,476,819	$516,404.50

The claimant’s submission on liability

Contributory negligence is in issue in this case, the claimant says that she was not at fault in the accident and that the accident was caused by the driver of the four-wheel drive vehicle towing the trailer in that the driver was on the claimant’s side of the centre line of the roadway and the trailer (a Stonegate Industries 8x5 tandem axel box) was in her carriageway as the four-wheel drive travelled south on the said roadway.
The claimant relied upon the evidence of herself (A2 to A6), her husband Allen Graydon (A7 to A9) (who was riding his motorcycle behind her) and also the expert evidence of Dr Paul Carnavas which is contained in a report of Forensic Engineering Consulting Pty Ltd dated 29 September 2021 (A10). Dr Carnavas in his report examines all of the available evidence, including the NSW Police investigation markings on the roadway and opined that:
“The Accident was caused when the Trailer being towed by Ms Jones
crossed into the oncoming traffic lane and into the path of Mrs Graydon
travelling on her Motorcycle.”
The conclusion is found on page 21 of Dr Carnavas’s report. Dr Carnavas’s report is extremely detailed in the manner in which he has analysed all of the evidence referred to.
The insurer has served an expert report under the hand of Mr C T Hall from Anderson Hall dated 31 March 2021. Mr Hall, in his report, assumes that the trailer being towed by the four-wheel drive was no wider that the four-wheel drive itself. That assumption is incorrect as the trailer was wider than the four-wheel drive and thus closer to the traffic than the four-wheel drive itself. (A10 page19 para 28). Mr Hall concludes that the evidence is more consistent with the right side of the four-wheel drive being just over the centre line into the northbound lane (incorrect side of the road) at impact.
Dr Carnavas estimates that the impact between the motorcycle and the trailer was approximately 400mm into the northbound lane, relative to the centre of the road.
It is noted that the insurer’s expert estimated that the four-wheel drive would have been approximately 200mm on the incorrect side of the road at the time of the collision. Therefore, bearing in mind the trailer being towed by the four-wheel drive was much wider than the four-wheel drive itself, the estimation of Dr Carnavas should be preferred, namely that the point of impact between the motorcycle and the trailer took place at about 400mm into the northbound lane relative to the centre line of the roadway. Accordingly, the claimant submitted that liability for the accident will be found against the insurer.
The claimant again asserts the insured’s expert concludes that the insured was partially travelling in the northbound carriageway at the point of impact. Accordingly, the claimant says that if the insured had been travelling in the southbound carriageway as she ought, particularly whilst towing a wide trailer, the accident would not have occurred in the fashion that it did.
The insurer asserts that the claimant was guilty of contributory negligence and relies on the report of Mr C T Hall dated 30 March 2021 and the opinions set out therein.
The claimant denies she was guilty of contributory negligence and says that:
(a)   she was riding in accordance with posted speed signs;
(b)   she was riding on her correct side of the carriageway;
(c)   the insured was travelling at a speed in excess of the advisory speed signs;
(d)   the Insured was partially in the northbound carriageway when the accident occurred, and
(e)   she relies on the observations, opinions and conclusions of Mr Carnavas as set out in his report, particular paragraphs 36, 37 and 38 in support of her denial of contributory negligence.
Accordingly, it is submitted that there should be no deduction for contributory negligence on the part of the claimant and there should be a finding of liability against the insured in full.

The insurer’s submission on liability

The version provided by the claimant in her Application for Personal Injury Benefits is:
“Travelling on Numinbah Road going around a left hand bend at approx. 50-54 k/ph. Car was coming the other way driving on the double lines so I took evasive action to avoid the car and hunkered down and leaned to the left. As I passed the car wheels were on the double lines and then I was hit by the trailer and the trailer ran over me.”
The only known witnesses are the claimant, her husband on his motorcycle a short distance behind, and the insured driver.
The police report confirms the accident happened at about 2.45pm and was reported almost immediately. The weather was fine and dry, the road surface sealed. The report also confirms that the insured driver was not affected by alcohol. The narrative relates that the Honda motorcycle was travelling north on Numinbah Road at Numinbah. At the same time, a Mitsubishi Pajero towing a dual axle trailer was travelling south at the same location. Whilst negotiating a left hand bend for the motorcycle and a right hand bend for the Pajero at the intersection of O’Reilly’s Road, the two vehicles have collided in a heavy “side swipe” impact, resulting in the motorcycle falling to the road and being driven over by the trailer. The report indicates that it was not known which vehicle had crossed to the incorrect side of the road. As a result of the collision, the motorcycle rider was conveyed to the Gold Coast Hospital with serious leg injuries. The driver of the Pajero was not injured.
The insured, Ms Jones, provided a statement to the police on 14 December 2018. She was then a 61-year-old retired project manager with about 40 years of driving experience. She reports having had a caravan for nine years which she took on trips three to four times per year. She usually drives with the caravan and reports also having a boat trailer and a dual axle heavy trailer. She claims a lot of experience towing.
She confirms that she was involved in the subject accident. After the accident she gave a version to Senior Constable Raftery who recorded it in her notebook. It was signed and dated. The statement discussed was refreshed from that version.
She subsequently had a conversation with Sergeant Rehwinkel of the Far North Coast Crash Investigation Unit on 26 November 2018. She produced a typed four-page document of her recollections which were signed and dated. At the time of the accident she indicates that it was daylight with the sun not in her face. She reports many trees on the side of the road with the sun being blocked by the trees. The weather was fine and the road was dry. She reports the traffic on the road is always light but just before the crash, she had passed another car and van. She was conscious that she had pulled over to the very left side of the lane.
At the time of the subject accident there were no other cars in the vicinity. She says that at the time of the collision her vehicle was not over the centre line. She indicates the road at that point is not very wide so she was close to the centre line. She is aware of the corner but says there is nothing significant about it.
She was also aware that motorcycles use the road a lot. She reports never having had one come at her that close to the centre line. She reports never having seen two motorcycles that close to each other to see that they were not in single file. What she must mean is that the second bike was not following the same line as the first bike. She says the second bike was somewhere between 2 and 4m behind the first one and closer to the inside of the corner. She says that they were so close she saw them both at the same time as she came around the corner. She could not say for sure where the first motorcycle was on the road only that it was very close to her.
She indicates that while she was at the scene, she spoke to the rider of the second bike who she now knows as the claimant’s husband but he did not say anything about the crash or how it happened.
Ms Jones offers the opinion that the cause of the crash was that the bikes were going too fast, too close together and not in single file. She considers the claimant’s speed explains why she was going so wide.
Her statement of 24 November 2018 provides more background about where she had been and where she was travelling from leading up to the accident. She indicates that immediately before the accident she was travelling downhill through a right-hand corner slowly. She told police at the scene that she would have been going 50 to
60 kmph at most but speculates that it might even have been less than that. About 5 or 6km north of Chillingham she suddenly heard and saw two motorcyclists coming at speed around the same corner.
Her reaction was to think “they’re wide!” One bike was taking the corner wider than the other. She indicates that while she saw the second bike at the same time as she saw the bike closest to the middle of the road, until she was told by police that morning that the second motorcyclist claimed he was about 3 seconds behind the bike that collided with her, she says she could not have said that the other bike was slightly ahead or slightly behind the bike closest to the middle. She simply reports having just seen two bikes riding close together coming into the corner one very close to the middle and one closer to the inside of the corner. They appeared not to be riding side by side, rather one was slightly ahead or behind and the one closer to the inside of the corner and the other closer to the centre of the road.
Her focus was on the bike closest to her. She claims there was no time to react, no time to turn the car away or even to apply the brake. She recalls seeing the motorcyclist pass her car almost as if in slow motion and then a delay during which she remembers the thought along the lines of “thank goodness they got past”. She then heard a loud noise as the rider collided with her trailer. She felt no movement of her vehicle just a sensation and sound of something hitting the trailer.
She then pulled to the side of the road, ran back to see if the motorcyclist was ok. She noticed the bike laying across the inside lane of the corner and that it was spilling petrol onto the road. The motorcyclist was lying on the road about six feet or so from the bike and the insured arrived just as the other cyclist got to her. The insured did not see where he pulled over or where he parked his bike.
It was obvious to Ms Jones that the claimant’s leg was broken as it was twisted in an unnatural way. Ms Jones went back to her vehicle to call for help. She then called 000 and dealt with ambulance and police. Another bike came up at speed as did some other cars to help. Others then headed up and down the hill to control traffic. Two motorcyclists stayed with the injured motorcyclist and her companion.
The 000 operator then asked to speak to the other motorcyclist and it was then that the insured learned that he was the claimant’s husband.
She indicates that it took 20 to 25 minutes for the police to arrive after the accident and a further 10 to 15 minutes before the ambulances arrived. She indicates two towing vehicles arrived before either police or ambulance. She spoke to one of the police at the scene and she told him what she could recall.
After some questions, she and the police officer looked at the damage to the trailer noting the damage was all very low down. She thought at the time that the rider may have tried to turn the bike away and had lost control and slid into the trailer. She says she did not think to look for damage to her car as she had not been aware of an impact at all. She was surprised to hear later that there was evidence that the car had been clipped first.
Acting Sergeant Rehwinkel participated in a record of interview on 1 August 2019. He has been a member of the police service at that stage for 16.5 years and had spent the previous 8.5 years in crash investigation as a result of which he attended many accidents.
He indicates that he did not arrive at the scene until 6.40pm. On arrival he observed the motorcycle lying on its left hand side within the northbound lane and further south of that there was a 4WD parked off to the left hand side of the road of the southbound lane. He also noted the Pajero had a trailer attached (a dual axle trailer) measuring probably 8 x 6. He describes a fairly large box trailer with dual axles.
He confirmed there were some scratch marks and tyre marks on the side of the Mitsubishi, on the driver’s side in front of the rear wheel.
He indicates that the point of impact was never identified in the collision. He believes the major impact was between the motorcycle and the trailer not necessarily the motorcycle and the Pajero but within the area of the intersection of O’Reilly’s and Numinbah Roads.
He confirms that to his knowledge there are no homes or buildings in the vicinity. It is a rural farming district and while there are farm houses in the area, they were not close. He believes the speed limit in the area was 80 kmph.
He describes the bend to be quite sharp essentially horseshoe in the roadway.
Acting Sergeant Rehwinkel confirmed that leading up to the corner from both directions there are signs indicating that drivers are prohibited from overtaking on Numinbah Road at that location. He confirmed the entire corner had double white lines around it with the only break being for the intersection at O’Reilly’s Road. He confirmed the road was sealed with bitumen. It was fairly old and worn but free of pot holes and any contaminants.
He was asked about the scrape marks on the Pajero. He confirmed that there were a few. At the time of the interview he did not have photos but he confirmed there were some scape marks and thinks a tyre mark forward of the rear wheel on the right hand side around the door, around the step and skirt area below the rear driver’s side door. He also confirmed some scratches on the wheel itself. He considered those marks were very fresh and indicated to him a scraping of metal such as could be caused by a foot peg. He indicated that he had no doubt that the motorcycle at some point came into contact with the Pajero.

He confirmed that the trailer received significant damage (see the photos obtained) to the front right corner and the front right-hand wheel so the motorcycle had clearly impacted with that side of the trailer and probably gone onto the front wheel so that it pushed the front axle backwards.
Acting Sergeant Rehwinkel confirmed that there were scrape marks on the road (answer 72). He notes that scrape marks or gouge marks are a very good indicator of a point of impact from a collision. He confirms that there are physical scrape marks on the road which clearly identify the point of impact between the trailer and the motorcycle. They commence in close vicinity to where the impact between the two occurred. The nature of the collision was such that there was no driving force down toward the roadway due to that impact. He describes a glancing impact. There were only minor scrape marks on the side of the car. As a result, there was nothing causing that impact to leave a mark on the roadway.
At answer 74, he indicates the scrape marks started on the incorrect side of the roadway for the motorcycle which was evident to him that the motorcycle had gone or the impact between the trailer and the motorcycle was most likely to have occurred in the southbound lane. He indicates that there is again sometime between that impact and the motorcycle hitting the road. All he could say was that the area was very close to the centre of the road but he could not be definitive.
He then read onto the transcript the version of the insured driver recorded in the notebook of Senior Constable Raftery. The insured confirmed that she was the driver involved in the collision. Asked what happened she said:
“I was driving down the mountain and as I came around the corner, I saw two bikes coming towards me. I thought that they were close to the centre line, at least one was, and the other was inside at the back. I hoped that they weren’t going to hit me. They went past the car and I just heard a bang and then pulled off the road. I got straight out and went towards the person near a bike on the road. I called the ambulance.”
When asked how fast she thought she was going she said between 50 and 60 kmph. She confirmed she had a seatbelt on. She also had the radio on. When asked how often she towed a trailer, she answered “pretty regularly. I own a property nearby. I tow caravans regularly as well”. Acting Sergeant Rehwinkel confirmed that as far as he could see the vehicles and trailer were roadworthy and the insured returned a zero reading for alcohol. He also confirmed that she was first breath tested for a negative result and there was no indication of drugs.
He also reports that it appears there was no sample taken from the claimant mainly because she had been rushed to surgery and had a lot of blood loss.
The investigator then spoke to Acting Sergeant Rehwinkel about Mr Graydon, the claimant’s husband.
The statement from Mr Graydon is dated 15 December 2018.
Mr Graydon indicated that he was employed as a cabinet maker and reported about 11 months of riding experience and 23 years of driving experience. He reports that on
24 November he was riding his motorcycle and his wife riding hers. They left home in Queensland at about 8.00am and rode together to Hastings Point for breakfast. They then went to the beach and creek and spent some time there. They then travelled to Mooball and stopped at a café museum for a milkshake. That was around lunchtime. They then travelled to Murwillumbah and onto Queensland Roads through some cane fields. Then took a left onto Numinbah Road to the Queensland border toward home.
The road is described as a country road with twists and turns with a single lane in each direction. Most of the road has solid white lines. He notes areas where the lines are faded. The speed limit varies from 60 kmph to 70 kmph and 80 kmph. He reports advisory speed signs on corners. The road was fairly quiet and it was a lovely sunny day. The sun was not low enough to be in their vision. They were travelling generally north. They were going through a left-hand turn which led to a right hand turn and then onto a long left hand turn past the intersection of O’Reilly’s Road on the right.
Mr Graydon indicates that his wife was travelling approximately 2 seconds in front of him. He could see her. He says that she was in a position on the road that was centred to the left of the right-hand wheel track in the left lane. He was travelling in the same path going 50 to 52 kmph. His wife was travelling at the same speed. His wife’s bike was leaning to the left as she travelled around the corner. He did not recall her braking before the corner but she was not braking as she went through. As they travelled around the corner he heard her say something over the Bluetooth intercom but he was not sure what she said. The next thing she said “oh no”. He saw her bike go peg down meaning her bike leant over to the left and the peg was touching the ground. He indicates that there is a ball on the bottom of the foot peg. Just after that he saw a SUV 4x4 coming around the corner and says he could see the front of the 4x4 was on the centre line and was at an unusual angle coming across the line. The next thing he saw was his wife’s bike going under the front of the two axles of the trailer towed by the 4x4.
He saw the trailer lift up and his wife went head over heels over the bike and landed on the back or side of the trailer on her back. She bounced off the trailer onto the road and slid to the inside of the road.
Her bike raised up at the back and then fell on the road. The trailer bounced to his right and then bounced back towards him. He had anticipated it doing so and manoeuvred left and right around the trailer while also braking. He went across the road to his wife’s bike on the left and stopped on the gravel. He looked back and saw the car and trailer stop on the same side of the road as him. He got off his bike and went straight to his wife who was on the very inside of the road laying on her back. He could see the bones of her right leg left shattered on the roadway. She was unconscious, pupils dilated and she was breathing. Her left leg was bent underneath and behind her and the right side was straight and her lower leg was 90 degrees to the left. Her jeans had torn open at the knee section and he could see the joint was missing. There was no gushing of blood. He then saw a lady get out of the 4x4 and come over. They had a discussion about calling an ambulance. He says she was in a mess emotionally asking about his wife but he did not say anything about the crash. He goes onto describe others arriving to assist, ambulances arriving and his wife’s transport to hospital.
He goes onto indicate that in his opinion the cause of the crash was that the vehicle was in their lane, certainly that the wheels of the trailer were.
A statement was also obtained from the claimant and she reported that she was employed as a practice manager for a general practitioner. She claimed 28 years driving experience and 11 months riding experience. On 24 November, she had gone for a ride with her husband to Hastings Point and they were heading back. They had gone through many towns and had made a short stop at the bottom of Numinbah Road where her husband did something with his bike. She confirmed that they could talk to each other through the Bluetooth intercom. They were heading towards home. There was one lane in each direction with double white lines all the way but there were some sections where there were no lines at all. She confirmed it was 30 odd degrees and the road was dry. The sun was not in her eyes and not in her mirrors. She thought the time was nearly 1.00pm but she was not sure because she did not wear a watch. She was in front of her husband who was 3 or 4 seconds behind her. They were travelling in the track where a driver would be. She says she was going 50 to 54 kmph.
As she came around the corner, she saw the light coloured car coming in the other direction. She recalled a female driver. She saw the front wheel of the car over the centre line. She says it was not very far over but it was over. At that time she said “Allen be careful there’s a white liner”. She then says that she cut down and leant the bike over. She remembers seeing her bike tyre and the other tyre pass each other. She was going to move the bike back up and that’s when she met the trailer. She recalls the trailer coming straight at her. She had no recollection just saying “oh she’s got a trailer”.
From then she does not recall anything else and the next thing she remembers is waking up in ICU but does not know when that was. The claimant expresses the opinion that the cause of the crash was that the lady was in the wrong lane at the start. She thinks that she jerked back into her lane which swung the trailer into her lane. She thinks the lady was distracted and was surprised to see her. She also thought the other lady was speeding. She notes it is a steep slope and she would be on her brakes. She thought she was doing 70 kmph.
Acting Sergeant Rehwinkel then goes onto indicate that as a result of his investigation, he was not able to determine which vehicle had crossed the wrong side of the road. He indicated that for that sort of collision to occur, it had to be such that one of the two has gone onto the wrong side of the road. He then suggested that it could be that the impact occurred directly in the centre of the road and that both drivers were on the wrong side but where there is a double white line, somebody has to be on the wrong side for that to occur. He confirms that he was not able to determine who was on the wrong side.
Acting Sergeant Rehwinkel then went onto describe some information that was in his report. In relation to the motorcycle, he noted that it had sustained significant damage to the front tank and right side. There was a slight scrape mark on the left foot peg slider which is the bolt on the lower side of the foot peg designed to slide on the roadway and give feedback to the driver that the peg was touching the ground.
East to the centre of the roadway in the southbound lane south of the fluid patch there were several gouge marks that continued in a general direction southeast of the centre of the road. The gouge marks were believed to have been formed by parts of the damaged right-side suspension and wheels of the trailer.
Tyre marks believed to belong to the trailer were located on the eastern side of the road in the gravel south of the gouge marks and concluded at the rear of the stationery trailer. The vehicle and trailer were parked off the eastern side of the southbound lane.
The Mitsubishi had collision damage to the rear of the side step in front of the rear offside wheel arch and collision damage to the wheel. That damage was of a glancing type of impact and consisted of mainly scrapes and rubble.
The box trailer had substantial contact damage to the front offside axle wheel suspension components and the mudguard.
In his opinion, the commencement of the fluid and gouge marks were a result of the secondary impact between the motorcycle and the trailer.
Due to the nature of the primary impact between the motorcycle and the Mitsubishi, there was no down force onto the roadway from either vehicle so that there was no evidence available to establish the first point of impact. He saw no evidence of scrape marks caused by the motorcycle foot peg slider. He confirms that all vehicles and the trailer underwent mechanical examinations revealing no defects or faults that could have contributed to the collision. He confirms a scene survey was prepared. He considered on review of the plan that it was evident that the area of impact occurred within the section of roadway that did not have a centreline and occurred within the vicinity of the centre of the road. No further deductions could be made as to defining the point of impact between the two vehicles.
He went onto comment that evidence obtained from the scene and vehicles indicates the primary impact was between the motorcycle wheel and most likely the foot peg with the centre of the right side of the Mitsubishi which would most likely have instigated the motorcycle to lessen its lean angle, stand up and would have caused a straightening of its arch of travel and possibly a redirection of its path. There would not have been any down force of vehicle components or tyres sufficient to have caused any road evidence. For that reason he was not able to identify any evidence to determine the point of impact between the motorcycle and Mitsubishi.
The secondary impact was a heavy impact between the front of the trailer towed by the Mitsubishi and the right side of the claimant’s motorcycle and her right leg.
Scene evidence indicates that impact occurred within the centre of the roadway in a position where there was no centreline. The exact point of impact could not be determined. Given the short distance between the centre of the Mitsubishi and the front of the towed trailer and the fact that the vehicles were travelling at similar speeds, he expected the primary point of impact would have been no more than 3m south of the secondary area of impact, a point which would still have fallen within the area that did not have a centreline. He concludes the scene survey did not assist determining a point of impact for the primary collision.
Regarding the human evidence from the claimant and the insured, he noted that neither made mention of impact between the motorcycle and the Mitsubishi when both indicated significant impact between the trailer and the motorcycle and rider.
He also notes that the positioning of the motorcycles ridden by the Graydons differs from what Ms Jones stated in her version.
The claimant’s husband claimed he was travelling about 2 seconds behind his wife at 50 to 52 kmph and on that basis, he would have been about 30m behind his wife. He also stated that he was travelling in the same line.
The claimant indicated that her husband was about 3 or 4 seconds behind creating an even greater distance of 45 to 60m between the motorcycles.
The claimant’s husband also stated that he saw the bike lean over to the left and the peg touch the ground and that just after that he saw an SUV coming around the corner. He witnessed the peg touching the road before seeing the Mitsubishi.
The insured, Ms Jones, indicates both motorcycles were close 3 to 4m apart with the husband on the inside and the claimant travelling close to the painted centrelines.
Acting Sergeant Rehwinkel determined that to be able to see the area of impact, the claimant’s husband had to have been less than 32m behind the claimant. Further, at a distance of 30 to 60m behind his wife and taking into consideration the bend in the roadway, Mr Graydon would not have seen any of the vehicle before impact. On that basis, he may not have been in a position to see any of the accident. He also noted that there was no centreline for Mr Graydon to see.
Acting Sergeant Rehwinkel went onto indicate that that led to the conclusion that either the claimant’s husband was too far behind to see the collision and has provided a version that was based on not what he perceived with his own observations or that he was considerably closer, which is consistent with Ms Jones’ version.
Further, while there was no road evidence to support the suggestion that the peg of the claimant’s motorcycle touched the ground, for her husband to see it do so, it’s more likely that he was closer than what he said which tends to favour Ms Jones’ version that the motorcyclists were close together, almost side by side.
He also noted that the stated speed of the vehicles was 5 to 10km above the advisory speed signs, however, none of the vehicles were believed to have been travelling over the sign posted speed limit.
Nevertheless, it was the opinion of the investigating police that excessive corner speed tends to see a vehicle move closer to the outer edge of a corner. An excessive corner speed error would likely see the motorcycle cross the centreline and the Mitsubishi travel off the eastern side of the roadway. He could not rule out the fact that the Mitsubishi was not cutting the corner.
Acting Sergeant Rehwinkel then referred to Mrs Graydon’s version noting that had she seen the front of the Mitsubishi over the centreline, she would have had approximately one second to react. He notes a driver is generally given a perception reaction time of 1.6 seconds so that it is arguable that she would not likely have taken any evasive action before any movement impact. Further, if the Mitsubishi was over the centreline, it would have been expected that if any impact was to occur it would have been directly with the front of the Mitsubishi. On that basis, the investigating police expressed the opinion that for the collision to have occurred creating impact midway along the right side of the Mitsubishi, it is more likely a case of the motorcycle overshooting the corner, crossing the centreline and colliding with the side of the Mitsubishi.
Acting Sergeant Rehwinkel goes on to suggest that it is possible that the claimant was past the point of initial impact by the time she was conscious of the fact that there might have been a ‘white liner’ that she had to drop her motorcycle down to peg down and say “oh, there’s a trailer”. He did not think it was possible for her to do and say all those things in one second.
Expert, Mr Chris Hall, has provided a report dated 31 March 2021. He conducted a site visit and was able to locate the police paint markings. His conclusions are summarised in section 10 of his report and comprise:
(a)   the physical evidence is consistent with the claimed approach speeds of 50-60 kmph for the insured, Ms Jones, and 50-54 kmph for the claimant, Mrs Graydon;
(b)    the available line of sight between the oncoming driver and driver was in the order of 55-60m, which equated approximately to a time to impact of 2.1 - 2.3 seconds after first available sighting;
(c)     there was sufficient time for Mrs Graydon and Ms Jones to take avoidance activities prior to impact;
(d)    from the available evidence, and assuming that the trailer was around the same width as the Mitsubishi Pajero, Mr Hall was of the opinion that the collision between the insured vehicle and subsequently the trailer and the motorcycle occurred at around the centreline of the roadway;
(e)    while the evidence is more consistent with the right side of the Pajero being just over the centreline into the northbound (incorrect) side of the road at impact than it is with the motorcycle being on the incorrect side of the road, there is no evidence which clearly indicates that either the Mitsubishi or the motorcycle were on the incorrect side of the roadway on approach to or at impact;
(f)     the claimant would have been leaning to her left at around 15 degrees as she travelled into the bend and it is claimed by both she and her husband that a stronger lean to the left occurred prior to impact which would have caused her motorcycle to deviate to the left prior to the impact;
(g)    the fact the collision occurred at or close to the centreline after
Mrs Graydon deviated to her left indicates that she was travelling at or near the centre line as she travelled through the bend;
(h)    in addition, the claimed speed adopted by Mrs Graydon through the bend was in excess of that recommended for safe riding, and
(i)     by entering the bend with a shorter than normal sighting distance ahead and maintaining an alignment within the bend close to or along the centreline, Mrs Graydon was not riding in a manner consistent with safe riding practices and had placed herself in a high level of risk of collision with oncoming vehicles. In reaching these conclusions, Mr Hall noted at 7.9 that there was insufficient physical data upon which he could calculate an actual estimate of the vehicle’s speeds. He proceeded by conducting a generalised consistency test based on the claimed approached speeds (at 7.10).

He also noted that he was unable to determine whether or not Mrs Graydon or
Ms Jones were already braking from higher speeds when they detected the approach of the other party (at 7.20).
He noted at 8.1 that the oil deposited on the roadway from the front motorcycle suspension indicates the general area of collision but that is not a sufficiently accurate indicator of where laterally on the roadway the collision occurred. He also noted that it is not possible determine at what point during the collision the front suspension of the motorcycle fractured and began to deposit oil but found it most likely the suspension did not fracture until after 50 milliseconds of collision. He estimated that the point of impact along the roadway occurred at the northern boundary of the oil spray deposit.
He made reference to the gouge marks referred to by Acting Sergeant Rehwinkel at paragraph 8.4 and accepts that the gouge marks referred to by him could have been created in this incident but says he would have expected to see tyre drag marks associated with the gouges and that there were no such marks appearing. On that basis, it is reasonably possible that the markings were not created in this incident.
He also refers at paragraph 8.5 to the paint markings on the road which did not highlight gouges and he could not distinguish what the more southern markings identified by green arrows in photo 10 related to and he could not determine which of the markings were more likely to have arisen if at all in the subject accident. He considers that none of the markings occurred at the point of impact and were created sometime after the impact.
At 8.6 he notes that from the tyre marks created by the front left trailer wheel it was apparent that the impact caused the trailer to be pushed sideways across the roadway towards the east and that from the oil tray leading to the motorcycle at rest the path of the motorcycle after impact can be traced.
At paragraph 8.7 he explains how he was able to deduce a general approximation as to where laterally across the road where the collision occurred but he has the caveat that his estimation should be used only as a general guide.
At paragraph 8.8 he noted that he had not been provided with any images of the trailer in its entirety nor its dimensions so he could not comment on the length of the draw bar nor whether or not it was wider than the Mitsubishi Pajero. He has assumed [unclear] configuration at a speed of 30 to 60 kmph indicating the trailer was likely to have tracked closely behind the Pajero with no off-tracking.
In section 9 of his report Mr Hall comments on recommendations for drivers approaching and negotiating bends with limited sight. He notes that in Australia it is recommended that riders in that situation slow as to achieve a sighting distance equivalent to 5 seconds. In paragraph 9.9 he includes exerts from the Queensland and New South Wales Riders Manuals. He indicates that to her have achieved the 5 second vision buffer the claimant should have slowed to around 35-40 kmph and that had she done so, her evasive action of leaning left would have been much more effective so that a collision may have been avoided.
However, he notes in paragraph 9.12 that motorcycle riders have also been advised to enter bends wide and to exit tight which is intended to provide the rider with a greater line of sight but it also has the unfortunate consequence of minimising the buffer zone and is inconsistent with other practices recommended for cornering. He attaches excerpts from the rider’s manuals for Queensland and New South Wales outlining those recommendations.
At paragraph 9.13, Mr Hall comments that the most logical and safest riding practice would be for riders to enter at about mid-lane and to exit tighter as the corner opens up. He notes that it may provide a slower method of cornering but it provides adequate buffer against oncoming traffic.
He goes onto note that the claimant had been travelling within the left hand bend for around 45m (for 3 to 3 ¼ seconds) and was well within a region where she could be confronted by a vehicle on the incorrect side of the roadway. Nevertheless, on her own and her husband’s reports she appears to have maintained alignment at very close to the centre line and that did not reflect common practice of providing a buffer despite there being adequate time for her to move left by a considerable distance before the collision.
He concludes the claimant was not riding in a manner consistent with safe riding practices and that she placed herself in a high level of risk of collision with oncoming vehicles.
The claimant qualified Dr P Carnavas to provide a report in response to the report prepared by Mr Hall. The report from Dr Carnavas dated 29 September 2021 has been served in response to the report prepared by Mr Hall for the insurer. At the foot of page 1, Dr Carnavas indicates that he has not performed any inspections and that he has relied upon the material briefed to him. His report contains a number of photographs including some showing an overhead view of the accident location.
He notes that the approach of the four-wheel drive and trailer involved negotiating a changing radius curve. The radius of the curve moving in the direction of the four-wheel drive gradually reduces then increases then reduces again at the collision area. On the other hand the motorcycle drives a short straight section of road before entering the left hand bend where the collision occurred. He indicates that the radius of the bend at the collision area was about 16m . He notes the defendant had a 45 kmph advisory speed sign facing her and a 55 kmph advisory speed sign facing the claimant prior to the bend. The general speed limit was 80 kmph. At page 5, he outlines the dimensions and weights of the insured four-wheel drive and also notes that he contacted the manufacturer of the trailer setting out the dimensions obtained. It is noted that the trailer was equivalent in length to the four-wheel drive but somewhat wider. For completeness he also sets out the relevant dimensions and weight of the claimant’s motorcycle.
Commencing at page 17, section 4, he discusses relevant issues and materials.
He concludes, based on the photographs provided, that the motorcycle did not hit the four-wheel drive. He notes that there is no damage or mark generally to the rear offside running board made by continuous movement of a wheel, tyre or an extremity of the motorcycle along the four-wheel drive and he considers that the indicated damage to the offside rear wheel is not consistent with having occurred while it was rotating with the four-wheel drive moving at a speed of close to 40 or 50 kmph.
In paragraph 20, he concludes that the trailer damage showed the motorcycle impact was significant. He notes substantial deformation to steel panels at the front offside extremity and at the front offside mudguard; two U bolts that had been broken away resulting in axle falling away from the spring and being displaced rearwards; front offside tyre punctured; and indicating the impact force dislodged the front axle from its spring appears to have been so substantial that the rear axle was also displaced when the front axle was forced against it.
He seems to accept that some of the damage to the rear axle may have occurred after motorcycle impact. He also accepts that the nature of the damage sustained to the motorcycle and trailer are seen to be consistent with claimed speeds of the vehicles and an impact speed of more than 80 kmph.
At figure 15 he identifies with a red circle his estimate of the point of impact on the tarmac at about 400mm into the northbound lane relative to the centre of the road.
At paragraph 26, he comments that the gouge and tyre marks depicted in figure 15 could have only been made by the trailer if it had previously crossed to the opposing traffic lane.
At paragraph 27, he summarises by concluding that the physical evidence is inconsistent with impact having occurred in the southbound lane and that the most probable point of impact is where he has placed in the northbound lane.
At page 20, he commences to comment on some aspects of Mr Hall’s report. In paragraph 32, he indicates disagreement with Mr Hall’s opinion that there was sufficient time for both parties to react because there is an underlying assumption that its driver would have perceived that there was a hazard immediately when the opposing vehicle came into view. Based on the parties’ statements he considers that unlikely to have occurred. At paragraph 34, he agrees with Mr Hall that the evidence is more consistent with the right side of the four-wheel drive being just over the centre line into the northbound (incorrect) side of the road at impact. He goes on to note, however, that Mr Hall utilised incorrect assumptions including that the trailer was about the same width as the four-wheel drive.
At paragraph 36 he notes Mr Hall’s criticism of the claimant’s speed travelling through the bend and his suggestion that it was in excess of that recommended for safe riding. He asserts the claimant was travelling under the 55 kmph corner advisory speed in an 80 kmph speed zone while the insured was travelling in excess of the advisory speed for vehicles travelling south. He goes on to note that if the claimant had been travelling at a safe speed of 40 kmph as recommended by Mr Hall and the insured had been travelling at her claimed speed of up to 60 kmph with an estimated sighting distance of 55m through the corner the collision would have still occurred about two seconds after the vehicles first sighted each other. He asserts the insured should have been travelling at a slower speed within the corner advisory speed.
At paragraph 37 he responds to Mr Hall’s assertion that the claimant was not riding in a manner consistent with safe riding practices by stating that there is no evidence to indicate that the claimant was riding recklessly or that her roadway position was abnormal or that her speed was excessive.
At paragraph 38 he notes that the insured was travelling at a speed above the corner advisory speed, driving close to the centre line on a narrow section of road, towing a trailer that was lighter than her vehicle and around a bend with a reducing radius which would have required her to progressively steer further toward the oncoming lane in which the claimant was travelling. The marks on the road identified by police could only have made if the trailer towed by the insured had crossed into the opposing traffic lane.
The insurer concluded than given the views expressed by Mr Hall, especially but not limited to the fact that the claimant would have been leaning to her left at around 15 degrees as she travelled into the bend and it is claimed by both she and her husband that a stronger lean to the left occurred prior to impact which would have caused her motorcycle to deviate to the left prior to the impact; the fact the collision occurred at or close to the centreline after she deviated to her left indicates that she was travelling at or near the centre line as she travelled through the bend; that fact that the claimed speed adopted by the claimant through the bend was in excess of that recommended for safe riding; and the fact that by entering the bend with a shorter than normal sighting distance ahead and maintaining an alignment within the bend close to or along the centre line, she was not riding in a manner consistent with safe riding practices and had exposed herself to a high level of risk of collision with oncoming vehicles which, unfortunately, materialised, the insurer asserts that her contribution to the accident’s occurrence must be assessed at 50%.

Traffic engineer reports

Having reviewed the expert reports in this matter, it is clear from both reports that the insured’s trailer at some point travelled onto the incorrect side of the road causing a collision with the claimant’s motorcycle.
The estimated encroachment submitted by the insurer of 200mm failed to take into account the wider measurement of the trailer and I accept the claimant’s expert that this would result in an encroachment of a minimum of 400mm.

Did the actions of the claimant amount to contributory negligence

Statements taken from the claimant’s husband and the insured by the police, on the day of the collision is provided against the background of a severely traumatic event. The estimates of time, speed and distance were an impression of what happened against a background of a horrific accident.
Whilst the insured’s driver considered the motorcycle riders were travelling at speed, this has not been accepted by the claimant’s expert. Comments made by the claimant’s husband that they were travelling above the advised corner limit was corrected at the assessment.
The insured did not consider she was travelling at speed for the situation, yet the experts concluded her speed for the corner was greater than the signposted recommended speed.
The location of where the actual impact took place was difficult to identify. The police officer could not determine who crossed over onto the incorrect lane. He recorded a side swipe and an opinion that the insured’s vehicle may well have crossed onto the incorrect side, which was ultimately determined by the expert evidence.
The claimant’s expert was commissioned to advise on which vehicle more probably crossed over the double centre line and caused the accident.
The accident occurred where the centre white line has an 11m break adjacent to the intersection of O’Rielly Road.
Both parties confirmed the weather was fine and the roadway dry.
The area of the collision was depicted in photograph at page 3 of Dr Carnavas’s report dated 29 September 2021.
Noting the catastrophic injuries sustained by the claimant, the statement taken on 15 December 2018 is a recollection of the past event. The responses from memory are a guide only to what she saw and when.
All the above factors need to be considered when relying upon the differing versions of event. Differing statements of each witness and their assessment of the situation is likely in such circumstances and the accuracy is variable.
The benefit of the expert evidence is that the markings obtained by the police at the time and the site mapping have enabled the experts to formulate the scenario of what happened in retrospect.
I find that the insured travelled onto the incorrect side of the roadway thus providing a hazard to the claimant which resulted in injury. The insurer has admitted liability.
The remaining issue to consider is whether there was conduct on the part of the claimant that contributed to the accident.
The insured faced an advisory speed of 45 kmph and the claimant 55 kmph.
The claimant was travelling within the recommended speed marked by an advisory signpost. The claimant’s evidence was that she was “riding in the right tyre track of where cars drove”. This is an accepted and appropriate path to ride a motorcycle to be clear of road surface hazards caused by vehicles spraying pebbles and other debris on the surface of the roadway.
The insurer submitted that the claimant should have been taking a different line on the roadway. This submission does not accord with the prescribed positions of motorcycles and the placement of the bike when facing corners. The line taken is to be close to the centre to enable the rider to have an opened up view of what is oncoming in the corner and where they are required to exit the corner. The distance between the riders is also in accordance with the rules of a 2-3 second gap.
The location of where the motorcycle was travelling accords with the NSW and Queensland handbook recommendations. This is confirmed by Dr Carnavas at p 20 of his report:
“..
30.    (10.1) I agree that the physical evidence is generally consistent with the claimed approach speed of 50– 60km/h for Ms Jones and 50 – 54km/h for Mrs Graydon.
31. (10.2) I agree with Mr Hall’s estimates of the available line of sight distances (about 55   – 60 metres) and the corresponding times (about 2 seconds) available to each party after first sighting of the opposing vehicle.
32.    (10.3) I disagree with Mr Hall that there was sufficient time for both parties to react because there is an underlying assumption that each driver would have perceived that there was a hazard immediately the opposing vehicle came into view. Given the statements of the parties involved, that appears unlikely to have occurred.
33.    (10.4) I agree with Mr Hall that the impact occurred close to the centreline of the roadway but I note that contrary to Mr Hall’s assumption, the Trailer was wider than the 4WD and would have been closer to oncoming traffic.
34.    (10.5) I agree with Mr Hall that “the evidence is more consistent with the right side of the (4WD)being just over the centreline into the northbound (incorrect) side of the road at impact”. At 8.9 of his Report using the incorrect assumption that the Trailer was about the same width as the 4WD he estimated that the probable encroachment of the 4WD into the oncoming lane was about 200mm. My assessment, based on the post accident roadway markings identified by Police is that the impact between the Motorcycle and the Trailer was probably closer to about 400mm into the northbound lane relative to the centre of the road
35.    (10.6 and 10.7) I generally agree with Mr Hall that Mrs Graydon would probably have been leaning about 15 degrees to her left as she travelled into the bend. I have calculated that the lean would have been closer to about 18 degrees at 50km/h into a 60m radius bend. Although Mr and Mrs Graydon indicate that the Plaintiff leaned the Motorcycle further to the left immediately prior to impact, does not indicate that the Motorcycle deviated very significantly from its original path prior to the impact occurring.
36.    (10.8) Mr Hall is critical of the speed adopted by Mrs Graydon through the bend and indicates that her claimed speed through the bend was “in excess of that recommended for safe riding”. This is incorrect. Mrs Grayson was travelling under the 55km/h corner advisory speed in an 80km/h speed zone. In contrast, the Defendant, Ms Jones was travelling in excess of the advisory speed for vehicles travelling south. I note that if Ms Graydon had been travelling on the Motorcycle at a “safe” speed of 40km/h as recommended by Mr Hall and Ms Jones had been travelling at her claimed speed of up to 60km/h in the 4WD with an estimated line of sight distance of 55m through the corner, the collision would have still occurred about 2 seconds after the vehicles first sighted each other. In order to increase the available response time in the circumstances of the Incident in any practical sense, Ms Jones should have been travelling slower at a speed within the corner advisory speed.
37.    (10.9) Mr Hall has indicated that “Ms Graydon was not riding in a manner consistent with safe riding practices and had placed herself in a high level of risk of collision with oncoming vehicles”. I note that this would only be true if the oncoming vehicle also illegally crossed onto the wrong side of the road. There is no evidence to indicate that Mrs Graydon was riding recklessly or that her roadway position was abnormal or that her speed was excessive.
38.    Ms Jones has claimed that she was travelling at a speed above the corner advisory speed and driving close to the centre line on a narrow section of road. She was towing a Trailer that was wider than her vehicle and around a bend with a reducing radius which would have required her to progressively steer further towards the oncoming lane in which Mrs Grayson was travelling. Post accident road marks identified by NSW police could have only been made if the Trailer towed by Ms Jones had crossed into the opposing traffic lane.”
The claimant was riding in a good position to allow her to see further and to get more information about what was happening up ahead. The fact that she saw the vehicle driving on the white line and called over her headset “white liner” to her husband travelling behind her was confirmation that the insured was traveling at that moment seconds before the impact on the bend.

I find that the conduct of the claimant in the manner in which she rode her motorcycle in the circumstances is in accordance with the suggested riding of “buffering”. She took immediate action to manoeuvre her motorcycle from the hazard, but the trailer was further over the road on the incorrect side and there was nowhere to go.
Her riding position was criticised by the insurer, this was in hindsight.
I find that there was no contributory negligence on the part of the claimant as she was riding in the correct position for starting curves wide as this improves the line of vision. She was not travelling at a speed outside of the prescribed corner speed. This is in compliance with the motorcycle rider handbook and training.
I make no deduction for contributory negligence.

ASSESSMENT OF DAMAGES

Non-economic loss

The parties were in agreement by the time of the assessment conference, that non-economic loss should be assessed in the sum of $400,000.
As the parties agree on this head of damage, I assess non-economic loss in the sum of $400,000.

Past economic loss

The claimant relied upon the opinion of Dr Porteous that she was totally incapacitated from working as a practice manager since the date of the accident.
The basis of the claim was set out in the report of Mr Lee at p204 (AD2) in the claimant’s bundle. Taking the losses as scenario 2, the role of employed practice manager.
The parties were in agreement that past economic loss amounted to $264,961 as at the date of assessment with agreed income tax reimbursement of $22,677. Total past economic loss was agreed in the sum of $287,638.
As the parties agree on this head of damage, I assess past-economic loss in the sum of $287,638.

Future economic loss

Claimant’s position

Prior to the accident, the claimant was employed as practice manager for a medical practice at Arundel in the State of Queensland. The claimant was unable to work after the accident for a period of time and attempts were made by the employer to accommodate her during the course of her rehabilitation.
However, she was unable to perform the tasks that the occupation required due to the catastrophic injuries she received in the accident and disabilities she was suffering therefrom. She has been unable to return to work and this will continue for the remainder of her working life.
The claimant relied on Dr Porteous and his report dated 3 August 2022 (A17).
A practice manager is responsible for many tasks and the occupation is defined as follows:
“Strategic planning, review and implementation of processes in a practice that
increases efficiency and contribute to the overall excellence in health care.”
The core principles of Healthcare Practice Management involve:
(a)   financial management;
(b)   human resources management;
(c)   planning and marketing;
(d)   information management;
(e)   risk management;
(f)    governance and organisational dynamics;
(g)   business and clinical operations, and
(h)   professional responsibility.
The claimant says that in her role as a practice manager, she would perform such tasks. The claimant says that in 2017 it was her intention to set up a consultancy to advise practice managers how to better manage the practices for which they were charged to manage.
The claimant says that the role of a Practice Management Consultant is inter alia to attend a Medical Practice and examine the programs and systems in place and to advise how they could be performed better for the benefit of the practice. The claimant says that for this consultancy work, her fee would be a minimum of $150 per hour. The claimant says that there were many opportunities for such consultancy work, and she anticipated that by 2022, she would have established her consultancy such that she would no longer work as an actual practice manager.
Accordingly, the claimant claimed economic loss as a Practice Management Consultant. The claimant says that she would have worked to at least 70 years of age as she had a financial necessity to do so and accordingly, a claim was made until that age. The basis of ongoing losses was claimed at a yearly average of at least 35 hours per week at a rate of $150 per hour.
Relying on the report of Mr Lee from Vincents dated 21 September 2022, a calculation was made in accordance with scenario 1 that she would operate her own business into the future in the sum of $1,001,591 less 15% vicissitudes amounting to $851,352.
The claimant relied on the principles of White v Benjamin [2015] NSWCA (R4) in the context of onus concerning residual earning capacity. Paragraphs 41 to 46.

Insurer’s position

The insurer referred to the frequently changing work history given by the claimant. It also observed that she had done very little paid work as a practice management consultant despite her aspirations which are pushed now.
It is particularly noteworthy that she took on a full-time position as an employed practice manager well after her own business had commenced. The insurer claimed this was incontrovertible evidence that the lack of progress and growth of her business over more than 12 months was very troublesome for the claimant. In reality, her move to secure an employed position just before her accident confirms that despite her aspirations and plans she came to the realisation that she was probably not going to succeed in business in her own right.
Furthermore, it is unarguable that the claimant’s earnings between 2014 and the date of accident varied greatly with most years in that period seeing her earn less and in some cases substantially less than she earned in the 2014 financial year. It was only in the financial year in which the accident occurred that her earnings or, more correctly, her income increased.
The insurer also placed weight on the views expressed by Dr Burke. His opinion is very sympathetic to the claimant’s circumstances. Nevertheless, despite her obvious and significant impairments, he considered that she has the capacity to pursue work from home to a limited degree using her skills and experience, for up to 12 hours per week. At $30 per hour and allowing 10.5% of the gross amount for superannuation, 12 hours per week is worth $397.80.
The insurer contended that the claimant’s most likely circumstances but for the accident would have been that she would have continued to work as a practice manager earning around $80,000 gross per annum to the age of 67. Her work related deductions would be expected to remain at a similar level to the 2019 financial year figure so that her net earnings before superannuation is taken into account would in fact be $1,064.27 per week. Once 10.5% of $80,000 is added the weekly figure increases by $161.54 to $1,225.81 inclusive of superannuation.
The insurer submitted that the appropriate allowance for future loss to the age of 67 is $828.01 per week (i.e., $1,225.81 less $397.80) which on the 5% tables for 13 years and reduced by 15% is worth $353,523.

Assessment of future economic loss

At the time of the accident the claimant was working as a full-time practice manager earning $80,000 gross which represented a nett weekly earning capacity of $1,180 net per week.
The claimant has been compensated for a total loss of capacity to date.
I am satisfied that the opinion of Dr Porteous occupational physician as represented in his report dated 3 August 2022 adequately summarises the impact of the claimant’s injuries on the claimant’s inability to return to work.
Dr Navin in his report dated 10 November 2020 (CB page 122):
“Assessment and Summary
In my opinion Ms Graydon is significantly and permanently disabled and has no
capacity to return to any form of employment now and in the future.
…’I confirm that Ms Graydon will never return to work in a sedentary/office type occupation’.
Functional capacity restrictions noted:
Function  Ability  Permanent or Temporary
Standing   9 Mins   Permanent
Sitting   60 Mins   Permanent
Walking   15 Mins   Permanent
Walking up stairs   5 Mins + No. of stairs         Permanent
Walking down stairs     5 Mins + No. of stairs         Permanent
Walking on uneven surfaces 2 Mins   Permanent
Climbing   none   Permanent
Lifting / Carrying   none   Permanent
Pushing / Pulling   none   Permanent
Reaching above
shoulder height   2 Kg   Permanent
Reaching below
shoulder height  5 Kg   Permanent
Reaching at shoulder
height   2 Kg   Permanent
Gripping   Yes   Good skill clinically
Bending   No   Permanent
Crouching   No   Permanent
Kneeling   No   Permanent
Squatting   No   Permanent
Keying   20 Mins   Permanent
Driving Maximum   15 Mins  Sleep Apnoea”
Due to the catastrophic injuries sustained, the claimant has numerous restrictions and added to this the impact of medication on her cognitive functioning, the ongoing pain from the amputation site, and the low mood experienced and psychological sequelae all impact on her ability to return to any form of employment.
Dr Porteous concluded:
“With all of the above,..she has such a degree of reduced capacity that she is incapacitated from not only her pre-accident job but any jobs that would be available to her by way of education, training and experience.”
The claimant seeks ongoing losses on the basis she would earn in her own business a significant amount greater than that which she was earning at the time of the accident. The premise is she would earn from her own consultancy business trading as “Elite Blueprint training” in 2018.
I find that the scenario suggested by the claimant but for the accident does not accord with the most likely circumstances, noting the submissions of the insurer that whilst the claimant commenced a consultancy business, she in fact had returned to a full-time employed position with 188 Medical Arundel two weeks before the subject accident.
The annual salary received by the claimant at the date of the accident was $80,000 gross excluding superannuation.
The evidence of the claimant’s invoices issued from the consulting role of “Elite Blueprint training” was at a charge out rate of $50 per hour. Later referred to as her “introductory rate”.
The proposition that by 2022 the claimant would be earning $150 weekly for 35 hours weekly is pure speculation. The information before me evidences a business in its infancy. The impact of COVID-19 is unknown and with all small business ventures, it is subject to market forces, business expenses and variable results from year to year.
Noting the claimant was operating the business venture and had recorded only in February 2018 - $1,235 and April 2018 - $840 in turnover, the estimate of weekly earning capacity relied upon by the claimant in her submissions on future earning capacity are not reflective of the most likely circumstances but for the accident.
I accept the insurer’s submissions that she would have retained the employed role into the future and that losses would have been incurred until normal retirement age of 67 years. I also accept that the claimant would in addition to her full-time employment consult from time to time as she had done in the 2018 year before the accident.
Noting that exhibited side interest in consulting as evidenced by her financial records I accept that the claimant has lost this opportunity by the impact of her injuries and her future earning capacity. I propose to allow a further buffer of $50,000 for this loss of opportunity as an additional venture to her full-time employment.
Whilst the insurer argued the claimant had a limited residual capacity as opined by
Dr Burke, the doctor’s opinion is in the minority. Noting the total incapacity to date,
I am not satisfied that the circumstances of the claimant’s ongoing injuries and disabilities are likely to change in the future, where for the period from 2018 to date it is accepted there is total incapacity.
I calculate the future economic loss as an employee as follows:
(a)   the current net weekly sum for a gross of $80,000 on the 2022/23 tax year is reflected at $1,190.46 net;
(b)   the claimant’s multiplier using the 5% tables is 502.3 (noting the claimant is currently aged 54 years and has a further 13 years of economic loss to age 67 years);
(c)   $1,190.46 x 502.3 = $597,968.05;
(d)   less 15% vicissitude -$89,695.20 = $508,272.84, and
(e)   Superannuation at 14.38% on net future total, multiplier for 13 years to retirement (Furzer Crestani 2023 tables page 25) amounts to $73,089.63.
I allow the buffer of $50,000 for business venture activities into the future.
Combining the amounts above, I assess future economic loss in the total sum of
$631,362.47.

Assessment of Damages Summary

I assess the claim as follows on the findings set out above:
Non-Economic Loss  $400,000
Economic losses
·Past economic loss  $287,638
·Future loss of earnings (incl. superannuation)    $631,362.47
Total of economic losses and non-economic loss           $1,319,000.47
Total Damages Assessed  $1,319,000.47

Costs and Disbursements

The insurer made submissions in response to the claimant’s schedule of costs and disbursement –
(a) the fee for Vincent’s report (Mr Lee in the sum of $8,673.50) submitting that the need for such report was unnecessary as the report merely made mathematical calculations and did not provide any “expert” element, and
(b) costs for Law in Order for copying and collating are not recoverable. It is an administrative task and the regulations do not provide recovery for such costs.
The claimant submitted in response that the claimant maintains the costs claimed and in addition to this the costs of the filing in District Court application relating to federal jurisdiction in the sum of $1,068.90 relying on s 26 of the Personal Injury Commission Act 2020.
I assess the claimant’s legal costs and disbursements in accordance with Part 8 of the Act and the Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, in accordance with the attached sheet in the amount of $102,557.88
The insurer is to have credit for statutory weekly payments made pursuant s.340 to 15 March 2023 in the sum of $255,033.25.

[2023] NSWPIC 110

16 March 2023