Halabi v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 128
•7 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Halabi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 128 |
| CLAIMANT: | Mohamed Halabi |
| INSURER: | IAG Limited trading as NRMA Insurance |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 7 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of claim for damages for past and future economic loss arising out of an accident on 22 December 2017; claimant had been involved in two previous motor vehicle accidents in 1999 and 2012 with medical evidence to the effect that he was permanently unfit for work as a result of those accidents; claimant had provided no evidence by way of invoices and receipts for any income which he claimed he had earned prior to the subject accident; claimant had similar injuries in the 2012 accident and the accident the subject of this claim in 2017; Held –claimant had not proved any past or future economic loss and no allowance made. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under Division 7.6 of the Motor Accident Injuries Act 2017 Determination 1. The claimant is not entitled to an award for past economic loss. 2. The claimant is not entitled to an award for future economic loss. 3. I assess the claimant’s entitlement to past and future economic loss as $nil. |
STATEMENT OF REASONS
Introduction
This claim came before me for a face-to-face assessment conference hearing on
17 March 2025.
The claimant was not legally represented having terminated instructions to the previous firm of solicitors acting for him on 15 March 2025.
The claimant proceeded with the assistance of an interpreter Ms Souzanne Demyane with NAATI accreditation number 32396.
The claimant endeavoured to produce some additional documentation relating to claims that have not been particularised. This went to what was referred to by the claimant as further surgery to his left shoulder and some additional treatment to his cervical spine. I informed the claimant that unless the documentation was allowed into evidence by the insurer, then he would have to apply for an adjournment so the claim could be particularised and evidence in support provided. Ultimately the insurer took no objection to this additional documentation and the claimant did not expand or refer to the issue again.
The accident
On 22 December 2017, the claimant was driving along Canterbury Road, Punchbowl in an easterly direction. The insured car was travelling in a westerly direction along Canterbury Road, Punchbowl. The insured car collided with the claimant's car as the driver attempted to make a right turn in front of the path of travel of the claimant's car. It appears to have been a heavy impact, The claimant’s car hit the curb.
Injuries and disabilities
The claimant claims the following injuries:
(a) back;
(b) neck;
(c) both shoulders;
(d) both upper limbs, and
(e) shock.
The claimant claims the following disabilities:
(a) pain and discomfort and restricted use and movement of the neck, both shoulders, both upper limbs;
(b) restricted range of movement of both shoulders, both upper limbs;
(c) radicular pain in both arms, neck, both shoulders and back;
(d) neck pain radiating to both shoulders and both arms;
(e) reduced triceps jerk;
(f) loss of pin point discrimination and reduced grip strength of both hands;
(g) right shoulder tear of supraspinatus tendon and subacromial bursitis;
(h) left shoulder supraspinatus tendinopathy and tenosynovitis and subacromial bursitis;
(i) increased back pain and discomfort;
(j) back pain radiating to both legs;
(k) experiences numbness and “pins and needles” sensation in both arms, both hands and wrists;
(l) headaches;
(m) unable to lift or carry heavy weights and objects without pain and discomfort;
(n) significant disruption to pre-injury work and domestic activities, and
(o) loss of vision.
Background
The claim is assessed pursuant to the Motor Accident Injuries Act2017 (MAI Act).
At the time of the accident the claimant says that he was the proprietor of a mobile our air-conditioning business. This had been operating for approximately nine months before the accident.
The claimant had been involved in at least two prior accidents. The first accident occurred in 1999 and the second accident in 2014.
The claimant was assessed by Medical Assessor Home as having a threshold injury by way of a right shoulder intrasubstance supraspinatus tear regarding the accident the subject of this claim. Interestingly, the Medical Assessor had previously examined the claimant on behalf of the insurer for his 2012 accident. He provided a report of 26 August 2013. At that time, he noted from a review of the medical file that there was a long history of recurrent neck pain, headaches and left shoulder pain between 1999 and 2013.
Medical Assessor Home, in his professional capacity, said that there was a premorbid history of neck pain, headache, anxiety and dizziness reported by the claimant. These symptoms were said to have persisted since 1999.
Medical Assessor Home said that while the claimant denied a past history of left shoulder pain, there were numerous documented entries in his general practitioner's (GP) notes of a left shoulder complaint arising in 1999 and continuing in 2000.
Medical Assessor Home, in his certificate, made no mention of his earlier examination of the claimant.
The claimant is not entitled to an allowance for non-economic loss. His claim is only for past and future economic loss.
The claimant appeared at the teleconference acting for himself. As I said, through the course of this assessment, the claimant has instructed three firms of solicitors. The claimant withdrew his instructions from the solicitors most recently instructed by him, on
15 March 2025.
Issues
The following issues arise:
(a) the impact or otherwise of the earlier accidents in 1999 and 2012 on the claimant’s condition prior to and after the accident on 22 December 2017;
(b) the past economic loss of the claimant, if any, from 7 December 2017 to date, and
(c) the future economic loss of the claimant, if any.
The impact or otherwise of the earlier accidents in 1999 and 2012 on the claimant’s condition prior to and after the accident on 22 December 2017
The 2012 motor vehicle accident
Clinical notes to 2012, as reported on by Dr Giblin in his report of 27 October 2014, show the following:
(a) 21 June 1994 RTA yesterday, neck pain;
(b) 24 June 1994 neck pain;
(c) 1 August 1999 neck pain for CT scan;
(d) 13 September 1999 neck pain;
(e) 3 November 1999 neck pain;
(f) 12 November 1999 neck pain;
(g) 4 December 1999 neck pain;
(h) 4 March 2000 neck pain;
(i) 4 April 2000 left shoulder pain;
(j) 3 May 2000 neck pain;
(k) 4 June 2000 neck pain, left arm numbness;
(l) 16 June 2000 neck pain, right shoulder pain;
(m) 27 June 2000 neck pain;
(n) 7 November 2000 neck pain;
(o) 11 March 2003 neck pain;
(p) 16 January 2006 neck pain;
(q) 8 November 2006 was overseas, war erupted. Felt dizzy;
(r) 1 November 2008 pain in neck, left shoulder, left leg;
(s) 23 June 2011 neck pain, and
(t) 18 October 2012 going overseas.
Regarding the 2012 accident, Dr Giblin provided a report of 29 October 2013. He noted the claimant’s complaints of ongoing low back, left knee, right leg, left shoulder and neck pain as a direct consequence of the accident. He accepted soft tissue injury to each area of complaint which he said rendered the claimant unfit for heavy labouring duties but fit for sedentary work. Dr Giblin said that long-term susceptibility to material aggravation and deterioration could be expected as consequences of this earlier accident.
Dr Giblin in a further report of 27 October 2014, and referred to earlier, said that the claimant had persisting symptomatology in relation to the injuries to his neck and back and his legs and his left shoulder.
Dr Giblin assessed the claimant as permanently unfit for heavy labouring work, specifically having to avoid heavy repetitive bending, lifting and twisting.
He said that the claimant was unfit to use his left upper extremity for repetitious pushing, pulling, lifting, twisting, load bearing or operating heavy vibrating machinery.
Dr Giblin said that theoretically, the claimant would be fit for a sedentary job, avoiding the aforementioned physical restrictions and preceded by the appropriate vocational rehabilitation.
A report from an occupational therapist, Mr Ratcliffe, dated 18 October 2014 concluded that the claimant was unfit for work as a commercial cleaner and was unlikely to be able to work as an air-conditioning repairer without making his pain levels worse. The claimant signed a statement with respect to his 2012 accident and said: “I am unable to work as a motor vehicle air-conditioning serviceman in view of my ongoing injuries, disabilities and restrictions”.
Dr Nanda had provided a report on 22 September 2017, prior to the accident and commented that the claimant felt at that time that his vision had deteriorated in the previous six months. This was diagnosed as cataracts in both eyes.
The 2017 motor vehicle accident
Dr Conrad noted that in 2012, claimant had a previous motor accident in which his predominant injury was his lumbar spine. He said that the claimant had a flare-up from the back condition in 2014 for which he attended Auburn Hospital. The back pain did continue but was made worse by the 2017 motor accident. The claimant denied any previous neck or shoulder or arm problems prior to the subject accident. He also denied any neck or shoulder or arm symptoms prior to the subject accident for which he would have seen a GP. He denied any other significant accidents prior to the present 2017 accident and the previous two motor accidents. This history is clearly incorrect, noting Dr Giblin’s report of
27 October 2014.
Dr Conrad assessed non-economic loss at 13% whole person impairment.
Dr Conrad did not consider the extent if any, of the claimant’s pre-accident medical condition
Medical Assessor Home, assessing if the claimant had a non-threshold injury concluded the following:
(a) aggravation of underlying degenerative change at the cervical spine. He did not find it plausible that the mechanism of the accident as described would cause a posterior annulus disc tear at C3/4, however there was evidence of mild underlying degenerative changes;
(b) exacerbation of underlying degenerative changes, which had resolved, at the lumbar spine. Medical Assessor Home did not find it plausible that the mechanism of accident would cause more than a temporary exacerbation of his underlying degenerative change noted on the pre-accident imaging, and
(c) aggravation of underlying degenerative changes, including osteoarthritis of the acromioclavicular joint, intrasubstance tear of the supraspinatus tendon and subacromial bursitis.
Medical Assessor Shahzad issued a Certificate dated 1 March 2024 accepting aggravation of underlying degenerative changes in the cervical spine, exacerbation of underlying degenerative changes in the lumbar spine with radiation to both legs as well as right shoulder rotator cuff tear against a history of bilateral degenerative changes in the supraspinatus tendon, biceps tendon and acromioclavicular joint.
Medical Assessor Shahzad said that in the case of spinal impairment there was documented evidence of previous, pre-existing and symptomatic impairment giving rise to an impairment rating for pre-existing issues. With respect to the claimant’s pre-accident condition, Medical Assessor Shahzad attributed 50% of his disabilities to his cervical spine and lumbar spine to his pre-existing condition.
Following the subject accident, the claimant consulted with Dr Gray, spinal surgeon. He reported that there was no structural pathology to explain the claimant’s clinical presentation and symptoms.
Dr Gray also said in his report of 1 February 2018 to Dr Tadros, the claimant’s GP, that at that time of examination, the claimant had not returned to work because his work vehicle had been damaged in the accident.
Dr Powell, for the insurer, provided a report of 9 February 2022. He noted significant inconsistencies during the examination, in particular with respect to the neck and left upper limb. There were no signs of chronic asymmetric disuse of the musculoskeletal system despite his presentation with tilted position and dangling left arm. This was exactly his presentation throughout the course of the assessment conference where the claimant sat approximately two metres from me, with his left shoulder and arm closest to me and hanging limply with no movement.
Dr Powell accepted injury to the claimant’s neck, back, upper and lower limbs that have continued to trouble him but with no structural abnormality, against a background of the noted 1999 and 2012 accidents.
Dr Powell considered that all radiological findings were degenerative in nature. He said that this degenerative process was expected to continue but was unrelated to the accident.
Dr Powell said that the claimant had continued to have symptoms. This was on a background of a previous motor vehicle accident in 1999 following which he developed chronic neck and left shoulder region pain, and a further motor vehicle accident in 2012 with persisting neck and upper limb symptoms and the development of low back and lower limb pain symptoms that became chronic.
Dr Powell noted that the claimant had been involved in an accident which occurred on
3 May 2012. In the personal injury claim form of March 2013, the claimant said that he was not working at the time of this accident.
The claimant submits that he was working prior to the accident without restriction. This is not correct. He seems to have had some very spasmodic work over very short periods, close to the time of the accident. His income tax returns are not evidence of any income other than from Centrelink for unemployment benefits.
The claimant says in his statement of 20 November 2020 that he intended to work up to the age of 70. However, as he was not in any regular employment since about 1999, this intention does not seem appropriate or viable.
The claimant had obtained an automotive mechanical certificate specialising in air-conditioning in 2013 from TAFE but there is little evidence of him practising in this area or attempting to work in this area until, he says, in early 2017. The gaining of a work certificate when all relevant medical evidence at the time was to the effect that he could not work, seems inconsistent. Again, there is no evidence of the claimant having a registered Australian Business Number (ABN) nor of any income he has received as a mobile air-conditioning repairer specialist.
The past economic loss of the claimant, if any, from 7 December 2017 to date
The claimant says that he has suffered a total past economic loss since the day of the accident and continuing.
When the claimant completed his statutory benefits claim form, he denied any prior claim, illness or injury of relevance. This was despite a serious prior motor vehicle accident on
3 May 2012 which gave rise to a claim with AAMI and a prior accident in 1999 which gave rise to a claim with NRMA.
The claimant has not produced evidence of any income earned by him since the beginning of 2017 when he says he commenced business. The claimant relies on a report of Dr Conrad to the effect that whilst he had back pain following the 2014 accident, it was made worse by the accident the subject of this claim. The claimant makes no reference to the prognostication by Dr Giblin in 2014 that he was permanently unfit for heavy labouring work, arising out of his 2012 accident.
Dr Gray, the claimant’s treating spinal surgeon, noted that when he saw the claimant, he had not returned to work because his vehicle had been damaged in the accident. This has nothing to do with any injuries claimant may have suffered.
Mr Ratcliffe, report of 18 October 2014, concerning the 2012 accident, said that the claimant was unlikely to be able to return to work as an air-conditioning repairer without making his pain levels worse.
The future economic loss of the claimant, if any
The claimant says that he will suffer a continuing economic loss into the future to age 70 based on the injuries he suffered in the 2017 accident.
By way of noting, the same factors for the assessment of this head of damage of future economic loss apply, as were discussed above concerning the claimant’s past economic loss from 22 December 2017 to date.
The claimant has provided no evidence in support of this claim other than three unsubstantiated statements.
Assessment of damages
The claimant does not have a substantial working history since arriving in Australia. He has had very limited experiences as a panel beater, a handyman and a commercial cleaner prior to the accident in 2012.
The claimant has provided no evidence of any income having been earned by him since the accident in 2012.
Tax records from 2013 to 2023 reveal the following:
Centrelink benefits
Revenue
Profit
Taxable
2013
$10,916
2014
$13,061
2015
$13,394
2016
$12,077
$12,077
2017
$13,735
$13,735
2018 (year of mva)
$13,672
$9,515
$4,058
$4,058
2019
$11,665
$6,415
$3,295
$3,295
2020
$17,309
$17,309
2021
$21,543
$21,543
2022
$14,552
2023
$16,401
The only evidence provided by the claimant in support of his claim for past and future economic loss consists of three statements from business associates and/or friends of his. One statement is more by way of a reference for the claimant by Mr Mohammed Balloul.
Another statement is from Mr Mick Ayoubi of 8 February 2025, who said that on average he would pay the claimant $400 per week “for his invoices”. No invoices have been provided. A third statement of 8 February 2025 from Mr George Badran said that he would pay $500 per week to the claimant. There was no documentary evidence about this.
Neither Mr Ayoub or Mr Badran, have produced copies of any invoices which you would expect from the claimant nor any proof of their payment to him. Similarly, the claimant has not provided any invoices for his work.
The claimant says that but for the subject accident, he would have been able to earn at least $1,000 net per week as an employee air-conditioning service technician. He also claims $1,000 net per week from the date of the accident but there is no evidence that he was earning that amount or any amount at all. I have no details of the claimant’s ABN nor any tax records nor any invoices for work. This claim is totally unsupported and unsubstantiated.
The claimant does not, on my assessment, appear to have taken into account his pre-existing condition and the effect this had on his ability to work at the time of the accident. I am satisfied that the claimant has suffered an aggravation to his pre-2017 injuries but that aggravation was not sufficient to change his ability to work.
I am not satisfied that he was working prior to the accident as there is no proof of this. The claimant had not really worked to any degree from 1999 the time of the accident the subject of this claim and it does not seem plausible for me to accept that he would have been suddenly earning $1,000 net per week.
I am satisfied that the claimant does have certain disabilities and Medical Assessor Shahzad was also satisfied about this but attributed 50% of his cervical spine and lumbar spine disability to early residents. The claimant has clearly not worked since the 2012 accident. I am not satisfied that the claimant would have worked from 2017 but for the accident. In 2012 he was diagnosed as being permanently unfit for work and there is no evidence before me that he has regained any fitness for work.
I make no allowance prior past economic loss or future economic loss.
Assessment summary
The claimant does not exceed the threshold for whole person impairment. He is not entitled to an assessment for non-economic loss.
Under the MAI Act, the claimant can only make a claim, with respect to his particular injuries, for past and future economic loss. For the reasons I have provided, I am not of the finding that the claimant will suffer a loss of income or business opportunity in the future. The claimant has not effectively worked, apart from spasmodic occasions, since at least 1999. It is not sensible to expect that, at the age of 56 years, with his past earning track record, that he would suddenly be achieving an income of $1,000 net per week.
Determination
The claimant is not entitled to an award for past economic loss.
The claimant is not entitled to an award for future economic loss.
I assess the claimant’s entitlement to past and future economic loss as $nil.
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