Insurance Australia Limited t/as NRMA Insurance v Alves

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Alves [2022] NSWPIC 91
CLAIMANT:	Basil Jane Alves
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Brett Williams
DATE OF DECISION:	1 March 2022
CATCHWORDS:	MOTOR ACCIDENTS - Claims assessment; assessment of damages; aggravation of asymptomatic degenerative changes on both wrists; whether aggravation has ceased; assessment of past and future economic loss; appropriate basis to assess loss; whether claimant had a practical residual capacity to earn; Nominal Defendant v Livaja considered; whether vicissitudes should be assessed at greater than 15%; Held- aggravation of degenerative changes in the wrists due to the accident persist; ongoing loss of capacity to earn that will be productive of financial loss attributable to wrist injuries; claimant had a practical residual capacity to earn; vicissitudes assessed at 20%; allowance made for past and future economic loss.
DETERMINATIONS MADE:	1. Under sub-sections 7.36(3) and 7.36(4) of the Motor Accident Injuries Act 2017 (the MAI Act), I specify the amount of damages for this claim as $299,163. 2. NRMA is to pay Ms Alves’ costs in accordance with the MAI Act and the Regulations.

Reasons for Decision

Issued under section 7.36(1) of the Motor Accident Injuries Act 2017
Assessment of Claim for Damages made in accordance with section 7.36 of the Act
Background

Basil Alves was injured in a motor accident on 30 August 2018. The accident occurred when she was picking up her eldest child from school. The other vehicle involved struck the right rear end corner of her vehicle as she was preparing to exit her vehicle. She made a claim for damages on the insurer, Insurance Australia Limited t/as NRMA Insurance (NRMA). NRMA accepted liability for the claim on 23 July 2020. NRMA referred the claim to the Dispute Resolutions Service (DRS) for assessment of damages on 19 February 2021.
Ms Alves’ case is that she suffered injury to her left knee, neck and wrists, together with associated disabilities, as a result of the accident. Damages for past and future economic loss are claimed. Ms Alves does not claim damages for non-economic loss.

Transitional matters

The Personal Injury Commission (Commission) was established on 1 March 2021. These proceedings were commenced at the DRS by NRMA on 19 February 2021, before the Commission was established. In accordance with Sch 1 Pt 2 cl 14A and cl 14B of the Personal Injury Commission Act 2020, the proceedings constitute pending proceedings and pre-establishment proceedings that I am empowered to determine.

Assessment conference

The claim was listed for assessment on 22 February 2022. Mr Turnbull SC appeared for Ms Alves. Ms Gumbert, of counsel, appeared for NRMA.
The issues that arose between the parties were narrowed at the assessment. The following matters were agreed between the parties:
a.    there is no evidence that Ms Alves made pre-accident complaints of right or left wrist pain;
b.    Ms Alves injured her right wrist in the accident;
c.     Ms Alves developed a secondary injury to her left wrist which is causally related to the accident;
d.    Ms Alves suffered an injury to her left knee in the accident and not her right knee, contrary to what is recorded in Dr Hakim’s notes, which the parties agree are incorrect in this respect;
e.    Ms Alves had, but no longer, suffered from carpal tunnel syndrome, which was unrelated to the accident;
f.     in the event Ms Alves did not pursue her proposed cake business, but for the accident she would have worked part time until 2029 from which time she would have worked full time, and
g.    Ms Alves’ capacity to earn uninjured in an administrative role was $731 net per week for part time work of 25 hours a week (5 hours 5 days a week), and $1,064 net per week for full time work.
Mr Turnbull SC confirmed that Ms Alves:
a.    no longer argued that she developed reflex sympathetic dystrophy as a result of the accident;
b.    did not suffer a discrete psychological injury as a result of the accident;
c.     did not submit that any symptoms of a psychological nature gave rise to a loss of capacity to earn that is productive of financial loss, and
d.    did not allege that her accident caused neck injury was relevant to her claim for economic loss.
Ms Alves gave evidence at the assessment. There was no attack on her credit or reliability. I will address Ms Alves’ evidence later in these reasons.
The submissions made by the parties at the assessment were broadly consistent with the written submissions previously provided. Ms Alves’ case, simply put, is that she suffered injury to her right wrist in the accident in the nature of a scaphoid fracture together with the aggravation and acceleration of asymptomatic degenerative changes in her wrist. It was argued that although the scaphoid fracture had healed, it had caused asymptomatic arthritis to become symptomatic. Her evidence is that she developed symptoms in her left wrist because she favoured her injured right wrist. As to damages, Ms Alves’ primary case is that, but for the accident, she would have started a cake making business and that she is no longer able to do so. In the alternative Ms Alves argues that, had the business not been viable, she would have returned to the type of work she was undertaking before the birth of her first child. She argues that she has no residual capacity to earn as a result of her wrist injuries and claims damages for past and future economic loss accordingly. As to NRMA’s submission that she has a retained earning capacity, it is submitted that the capacity must be more than theoretical, and that NRMA must establish that she will be able to exercise that capacity. Her case is that she does not have the ability to exercise any theoretical earning capacity she may have. It is argued that Ms Alves has a total loss of earning capacity. As an alternative basis for assessing past economic loss, Mr Turnbull SC proposed an award for the past based on a buffer of $20,000 a year. For the future, an award reflecting a total loss of capacity was contended for.
NRMA’s case is that while Ms Alves may have aggravated degenerative changes in her wrists as a result of the accident, the aggravation had ceased. NRMA argues that any ongoing disability Ms Alves experienced is attributable to the natural progression of the degenerative changes. NRMA submits that Ms Alves did not suffer a fracture of her right scaphoid as a result of the accident. The alternative position put by NRMA is that if the accident caused aggravation of the degenerative changes are found to have persisted, there should be a significant deduction to any allowance for economic loss to reflect the likely development of degenerative changes in Ms Alves’ wrists even if the accident had not occurred, together with shoulder and neck complaints that were unrelated to the accident. NRMA argued that a deduction of 100% should be made for vicissitudes. In the alternative, NRMA submitted that a deduction in the order of 35%-50% should be made. NRMA argued that the proposed cake business was speculative and should not be used as the basis for an award of economic loss. NRMA submitted that Ms Alves is capable of working 25 hours a week. On that basis, no allowance for economic loss should be made until 2029. So as to reflect her retained earning capacity, a buffer of up to $100,000 could be allowed for the period post 2029. To be clear, NRMA’s submissions that envisage an award for future economic loss were made in the alternative, should its primary case be rejected.
Ms Gumbert sought a copy of nerve conductions studies referred to in Dr Nabarro’s report of 25 February 2021. A report of Dr Huynh addressing the studies, dated 22 February 2021, was provided during the course of the assessment. The report states that upper limb sensory and motor conduction values were within normal limits and that there had been significant improvement in the distal median nerve conduction parameters compared to the study in 2019.

Overview of the medical evidence

The parties rely on medico-legal evidence together with reports and clinical records of Ms Alves’ treating doctors.

Treating doctor’s records

The clinical notes from Church Street Medical Practice record that on 21 July 2015
Ms Alves reported that she had experienced left shoulder pain with overhead work for four years. Her left shoulder was normal on examination. Her thoracic spine was painful. On lateral rotation she was very tender at the left paraspinal region. Thoracic disfunction was noted.
The clinical notes from Brigadoon Medical Centre record that Ms Alves attended on 28 July 2017 and complained of pain in the left shoulder, more on abduction and internal rotation. The possibility of left subacromial bursitis or rotator cuff tear was noted. An ultrasound was ordered. The ultrasound report stated that no full thickness rotator cuff tear was seen. Slight subacromial bursitis was noted[1]. An ultrasound guided steroid injection of the left shoulder was performed on 30 August 2017[2]. On 21 January 2018 Ms Alves attended the practice with complaints of neck pain and stiffness. The notes record that the pain radiates to her right shoulder and arm. A CT scan of the cervical spine identified degenerative changes at C5/6 level[3]. Ms Alves consulted Dr Hakim on 31 August 2018, the day after the accident. The doctor’s notes record that she complained of injuries to her right wrist and right knee. She attended the practice on 7 September 2018 with a history of a motor accident. The notes in relation to this attendance refer to right knee and right wrist injuries. She attended the practice on 26 September 2018 with a history that she had fallen on her outstretched hand while the scaphoid plaster was in place. The notes confirm that Ms Alves developed a blister on her right thumb that may have been caused by her wrist brace.[4] On 4 November 2019 Ms Alves attended the practice complaining of pain over her left upper trapezius region that had become worse over the previous two weeks. The pain in this region is recorded to have been present on and off for two to three years and had been the subject of physiotherapy and massage. There was no history of recent injury to the left shoulder. An ultrasound of her left shoulder on 5 November 2019 identified no significant findings.[5]
[1] Report Dr Bako dated 28 July 2017.
[2] Report of Dr Lowenstein dated 30 August 2017.
[3] Report of Dr Bako dated 24 January 2018.
[4] See attendances at Brigadoon Practice on 21 November 2018, 7 December 2018, 8 December 2018, 10 December 2018, and 12 December 2018.
[5] Report of Dr HO dated 5 November 2019.
Ms Alves changed practices in May 2020. She attended the Your Padstow Doctors Plus Practice on 25 June 2020 complaining of residual pain in her right thumb and left 1st metacarpal. It was noted that she felt much better than initially after the accident. Plain x-rays of the right wrist were ordered. Ms Alves was referred to Dr Nabarro given the persisting symptoms in her right scaphoid. It is recorded that she had ceased activities involving use of her right thumb due to increasing aches while cooking and cutting food.[6]
[6] Referral letter from Dr Komonen to Dr Nabarro dated 14 July 2020.
Ms Alves was referred to Dr Nabarro, hand surgeon. The doctor reported to Dr Hakim on 23 January 2019. He recorded a history that Ms Alves had sustained an injury to her right wrist in a motor accident 3 ½ months earlier. She had fractured her right scaphoid which had clinically united. She had gone on to develop pyogenic granuloma at the site where the plaster cast rubbed her skin. She may also have de Quervain’s of her left wrist. Surgery was scheduled for 22 February 2019 for an excision biopsy of the mass in her right thumb. An operation report dated 22 February 2019 confirms that the surgery took place. In a report to Dr Hakim dated 4 March 2019, Dr Nabarro recorded that Ms Alves was waking every night with nocturnal pain and paraesthesia and complained of ongoing pain in both wrists. On 11 April 2019 Dr Nabarro recorded that there had been improvement in relation to the right thumb. Ms Alves complained of ongoing pain over the volar aspect of both wrists and numbness and tingling in both hands. A steroid injection was recommended. In a report dated 17 June 2019
Dr Nabarro confirmed that Ms Alves underwent a steroid injection of her left STT joint (scapho-trapezium/trapezoid joint located at the base of the thumb). An improvement in pain was noted on the left. There was increased pain in the right wrist. A steroid injection in that wrist was recommended. On 13 August 2019 Dr Nabarro recorded improvement of pain in the right wrist following the steroid injection performed four weeks earlier. Left wrist pain had recurred. In his report dated 15 July 2020 Dr Nabarro noted that it had been 11 months since he last reviewed Ms Alves. She complained of ongoing pain over the dorso-radial aspect of her right wrist which had increased four weeks prior to the review. She reported that her pain increased by preparing food, cooking and if she bumps her thumb. She complained of ongoing pain over her left wrist. The doctor thought Ms Alves had signs of bilateral de Quervain’s disease together with osteoarthritis of both STT joints. In September 2020 Dr Nabarro recommended referral to a neurologist given complaints of paraesthesia. In a report dated 25 February 2021, Dr Nabarro recorded that Ms Alves reported significant improvement in the pain in her wrists and neck. Paraesthesia in both upper limbs had improved. There was residual tenderness over the STT joint and snuffbox and restriction of extension in the right wrist. Median nerve function was normal. An MRI scan of the cervical spine showed degenerative changes at C5/6 and C6/7 levels. Nerve conduction studies apparently showed no evidence of carpal tunnel syndrome.
In a report to NRMA dated 25 September 2020, Dr Nabarro noted that pre-accident
Ms Alves’ wrists were asymptomatic. He diagnosed a fractured right scaphoid which had clinically united, de Quervain’s tenovaginitis in both wrists, bilateral carpal tunnel syndrome, worse on the left, and STT arthritis/synovitis bilaterally which had been rendered symptomatic by her injury. The prognosis for both wrist injuries was guarded. In his experience, when an arthritic joint is injured and becomes symptomatic, it often does not settle with non-operative measures. A release of the 1^st dorsal compartments and carpal tunnels and possible surgery to the STT joints were likely.
Kahli Hawke prepared an Initial Needs Assessment Report dated 31 October 2018 following an assessment of Ms Alves on 5 October 2018. Ms Hawke recorded that
Ms Alves was not employed at the time of the accident and she reported no current intention to sustain employment. It was recorded that Ms Alves had an interest in starting her own baking business. Bilateral hand and wrist injuries were impacting on her functional capacity to carry out activities of daily living and domestic duties. A rehabilitation plan was established.
In a ‘Closure Report’ dated 20 August 2019, Ms Caryl Quito, occupational therapist, recorded that Ms Alves continued to undergo physiotherapy. She continued to report bilateral wrist and hand pain. She had difficulties with fine motor tasks and heavy domestic duties. Ongoing physiotherapy was recommended.
There is an Exercise Physiology Report of Hany Georgy dated 4 July 2021. The report records that while numbness and neurological impact of the wrist injury had improved over the course of treatment Ms Alves remained vulnerable to neurological symptoms if she ceases strength exercise for a prolonged period, experiences a change in the intensity of her activities of daily living or receives less support from her family. He thought that Ms Alves’ wrist symptoms and functional limitations would persist. She required ongoing medical management. Driving aggravated her wrist and thumb pain. She experienced difficulties with tasks associated with shopping.

Investigations

The following is a summary of the diagnostic investigation reports relating to Ms Alves’ wrists:
a.    7 September 2018 - x-ray right wrist and scaphoid - moderately severe osteoarthritis in the STT joint. Bony irregularity of the distal pole of the scaphoid. Small bony spur. Appearances are suspicious of but not diagnostic of a fracture of the distal scaphoid;
b.    13 September 2018 – regional bone scan – scintigraphic findings confirm a fracture involving the right scaphoid;
c.     18 October 2018 – bone scan with CT – evidence for ongoing bony remodelling involving the recent scaphoid fracture. There are findings which may reflect minor reflex sympathetic dystrophy involving the right hand and wrist;
d.    31 October 2018 - CT scan right hand/wrist – mild osteoarthritis of the right wrist. No sign of scaphoid fracture.
e.    5 November 2018 - ultrasound left hand - findings suggestive of mild tenosynovitis of 1^st extensor compartment tendon (mild de Quervain’s tenosynovitis);
f.     12 December 2018 - ultrasound right thumb – resolving haematoma;
g.    27 December 2018 – ultrasound right thumb – appearances in keeping with lobular haemangioma;
h.    20 March 2019 - nerve conduction studies – slowing of the distal median nerve sensory response bilaterally at the wrist consistent with mild carpal tunnel syndrome, slightly worse at the left;
i.     22 March 2019 - MRI right wrist – No discernible scaphoid fracture is seen. Degenerative changes are noted. Minor wrist joint capsular oedema suggesting minor synovitis. Small chronic degenerative full-thickness tear of TFC disc extending to radial attachment;
j.     22 March 2019 – MRI left wrist – no fractures noted. Mild STT joint degenerative change. Chronic degenerative thinning/tearing of radial aspect of disc extending to the radial attachment with full-thickness involvement;
k.     24 October 2019 – ultrasound left wrist and thumb – apart from minor possible carpal tunnel syndrome, no other abnormalities were seen;
l.     25 June 2020 - x-ray right wrist and left thumb – extensive degenerative changes around the scaphoid. Normal bony alignment in left thumb.
No fractures or dislocations seen;
m.   10 July 2020 – MRI right wrist – right wrist osteoarthritis and synovitis with associated mild dorsal intercalated segment instability, and
n.    22 February 2021 – nerve conduction studies – upper limb sensory and motor conduction values within normal limits. Significant improvement in the distal median nerve conduction parameters compared to the 2019 study.

Medico-legal evidence

NRMA relies on a report of Dr Breit, orthopaedic surgeon, dated 22 October 2020. The doctor recorded that the impact of the accident occurred as Ms Alves was just about to exit the vehicle. She was no longer wearing a seat belt. She reached across to pick up her phone from the passenger seat and does not know how her right wrist was injured at the time of impact. She also struck her left knee which was bruised. That injury ceased to be a problem very quickly. The doctor took a history that Ms Alves’ left wrist became painful due to overuse. She denied any problems with her neck, shoulders or elbows. The doctor disagreed with the contention that Ms Alves suffered a scaphoid fracture. He thought that the bone scan showed aggravation of pre-existing triscape arthritis. He noted that subsequent CT and MRI scans showed no evidence of a fracture. Her bilateral carpal tunnel syndrome, which is worse on the left, is purely constitutional and not related to the accident. Her thumb base arthritis is also purely constitutional and a problem that occurs more frequently in the female population. In the doctor’s opinion there was evidence of bilateral scapholunate ligament damage, which is longstanding and nothing to do with the motor vehicle accident. There was a degree of hypermobility in the hands. While there has been aggravation of her thumb base arthritis and secondary aggravation on the left side due to overuse, the overwhelming problem is the pre-existing arthritis which is the major reason for any ongoing treatment. In the doctor’s opinion any aggravation settled over the two years since the accident. The residual problems relate to underlying arthritis. Dr Breit thought that, because of her underlying thumb base arthritis, Ms Alves is quite severely limited in her ability to work either full time or part time and certainly not as a baker.

Dr Bentivoglio, orthopaedic surgeon, reported to Ms Alves’ lawyers on 12 April 2021. The doctor took a history of injury to Ms Alves’ left knee and right wrist in the accident. There was no history of pre-accident problems with her wrist or knee. The doctor recorded that the knee symptoms resolved over a few days and no longer trouble her. She went on to develop a lobular capillary haemangioma in her right thumb which was excised in February 2019 and healed uneventfully. Left wrist symptoms have developed. Ms Alves experienced an equal amount of symptoms in her wrists, primarily at the base of her thumbs. She experiences numbness in her left wrist and hand. The only medication she takes is for pain. Soft tissue injury to the left knee was diagnosed. This injury had resolved. The doctor thought that the right wrist investigations indicated that she had sustained a fracture of her distal scaphoid which had united uneventfully. The accident aggravated degenerative changes involving her STT joint. The degenerative changes in the STT joint will worsen in time. The accident also accelerated the degenerative disease process. Ms Alves also suffered from mild bilateral carpal tunnel syndrome which had not been caused by the accident. She had regained the majority of function in both wrists. There was a significant chance that she will eventually require surgical treatment on her right thumb. Prognosis for the left wrist was good. The right wrist prognosis was guarded. The doctor did not agree with Dr Breit’s opinion that Ms Alves had not sustained a fracture of her right distal scaphoid.
In a report dated 28 April 2021 Dr Bentivoglio confirmed that the left knee symptoms had settled. Based on her investigations the doctor thought that Ms Alves had sustained a fracture of the scaphoid and aggravated pre-existing degenerative changes present in the region of her scaphoid secondary to this injury. The injury had aggravated the pre-existing degenerative changes present in her wrist and caused an acceleration of the degenerative changes.
NRMA relies on a report from the Vocational Capacity Centre (VCC) dated 29 October 2021. Having conducted a functional assessment of Ms Alves, James Bryden-Brown, physiotherapist, found that she was not currently suited to roles requiring constant machine paced use of the hands, weighted forceful activity using either hand, sustained work above shoulder height or sustained work from ladders. She was not considered physically capable of working as a pastry cook in any capacity due to limitations in her dexterity and manual handling capacity. The results of the assessment also revealed that Ms Alves is physically capable of returning to the workforce in selected alternate roles in a part time capacity. Mr Bryden-Brown noted reduced right wrist range of motion, reduced right thumb CMC range of motion, positive right and left axial thumb compression tests and positive bilateral Finkelstein’s test (a test used to diagnose de Quervain’s tenosynovitis). Ms Alves demonstrated a range of restrictions. She demonstrated the manual handling capacity for selected roles with a sedentary level of physical demands. It was considered that future work for Ms Alves was essentially governed by the pace and loading of hand tasks. In Mr Bryden-Brown’s opinion, Ms Alves was best suited to self-paced work at optimal heights with tasks performed close to the body allowing rest breaks as required. Selected roles involving telephone and keyboard operation are within her physical capacity. She would benefit from a headset and voice activated software in these roles. In selected roles, Ms Alves was considered physically capable of work in the vicinity of 25 hours per week – 5 hours 5 days a week. Based on the results of the assessment, Ms Alves was not physically capable of working as a pastrycook in any capacity. She did not demonstrate the dexterity and manual handling capacity required for this role. Clinical and functional examination revealed below average dexterity and below average power and key grip strength in her right dominant hand compared with normative data. She reported pain in the right wrist and base of the right thumb as the limiting factors. In the remaining two right hand dexterity activities, Ms Alves frequently avoided using her right thumb while manipulating small objects. She demonstrated an average level of dexterity and below average power and key grip strength in her non-dominant left hand.
It was considered that Ms Alves had significant vocational potential despite her wrist injuries. Modifications are available in the workplace in order to reduce the use of her hands such as voice activated software or roles which are not predominantly focused around typing. Ms Alves has significant transferable skills and strong reasoning skills to be able to consider a range of roles, some of which she has undertaken in the past and others which would be familiar to her. It was concluded that Ms Alves could work as a travel consultant, ticket seller, call centre operator or supervisor, control centre operator, receptionist, telemarketer, sales assistant in a cake shop or, with further training, an office manager.

Ms Alves’ evidence

Ms Alves has provided statements dated 26 August 2021, 22 October 2021 and 8 December 2021. In her 26 August 2021 statement, Ms Alves provided a narrative of her qualifications and work experience. She stated that she immediately felt pain in her right wrist and left knee following the accident. By the time she got home she says she had whiplash in the back of her neck and the tops of her shoulders. Her right wrist symptoms deteriorated. She was ultimately placed in a cast for four weeks. She developed symptoms in her left hand because she had been overusing it to compensate for being unable to use her right hand. Ms Alves states that at the time of the accident she was a stay at home mother. She had the intention of commencing a cake business in February 2019. In this regard she had undertaken cake decorating courses. She had also purchased items for the business, which she intended to call “Papa Dols cakes”. She recounted problems with dexterity in her hands, which had impacted her ability to make cakes. She states that if her cake business had not been profitable within three years of operating she intended to return to work as an office administrator or event coordinator, initially on a part-time basis until her youngest child turned 15 in 2029. She does not think she can work in such a role due to her wrist injuries.
In her statement dated 22 October 2021, Ms Alves states that she continues to suffer pain in both wrists. She takes medication for the pain. She has found using computers, in the context of helping her children with schooling, has resulted in her wrists aching strongly, which then forces her to stop using the computer. She states that using a mouse and holding a pen or pencil causes pain in both wrists. Her evidence is that using a computer, mouse, pen and pencil are the sort of actions that would be required of an office administrator or event coordinator. She states that if the cake business was not profitable within three years of operating she would have returned to the sort of office administration or event coordination work she was performing before the birth of her first child. She states that she would have worked part time until 2029 and then return to full time work. Her evidence is that she would not be able to perform office work because of the pain it would cause in her wrists. She would not be able to undertake any work that involved using a keyboard or that required carrying or lifting objects because of the problems in her hands.
In her statement of 8 December 2021 Ms Alves addresses matters raised in the VCC report dated 29 October 2021. She states that she could not work as a travel consultant because that work would involve computer use. She says that she is generally unable to use a computer keyboard or mouse for more than 20 minutes before she experiences significant pain in her wrists. She states that she could not work as a ticket seller because the work is computer based. She could not oversee passengers’ safety given her wrist problems. She states that she could not work as a call centre operator/supervisor/control centre operator, because of the computer work involved in those roles. Likewise, she could not work as a receptionist, telemarketer or office manager. Ms Alves states that she continues to experience problems in both wrists, more in the right. She wears splints on both wrists. Her right hand grip is weak. She has started dropping things. She can only drive for short distances before it creates pain. She generally wears splints when she drives. She avoids lifting anything of weight, stirring pots or cutting vegetables as these tasks cause her pain. She does not use buttons on her clothes anymore as gripping the buttons tends to cause her pain. Despite looking on the internet to see what work possibilities are open to her, she has not identified a role that she could do given her injuries.
Ms Alves gave evidence at the assessment. She confirmed that she was right hand dominant. Her right wrist pain was constant, some days worse than others. The pain she currently experiences in her right wrist is the same as that she experienced after the accident. She also has problems with her left wrist, which she said she used more because of the pain in her right wrist. She had problems gripping and found that she was dropping things. She experienced shooting pain when using a computer requiring her to stop and apply ice. She can’t grip a pen and struggles with buttons. She receives no treatment and takes Panadol for pain and sometimes goes on a course of Celebrex. She said her neck was much better although she sometimes experiences pain. Her evidence is that she has looked online for work that did not involve using her hands.
Ms Alves confirmed that she did not report neck pain to her GP after the accident. She no longer experiences problems with her left knee. She does not take Celebrex for long periods due to the advice she received about side effects. Her evidence is that the painkilling medication does not relieve the wrist pain altogether. Ms Alves confirmed that while she has experienced shoulder pain since before the accident, and still has some shoulder problems, she manages those problems with exercises. She gave evidence that while she could undertake some duties associated with work as a ticketing agent, including telephone and face to face communications, she would be unable to perform computer work for long periods. She said that she experiences pain when using a laptop or iPad after 20 minutes. She said she can manage shorter periods with breaks but not long periods. Her evidence was that once the pain kicks in she has to stop. She said that her pain does not have an ‘on off button’ and that she can’t go through a day without pain. She did not agree that she could do some work on a part time basis. While she has no experience using voice activated software, she would be prepared to try it out. She has looked into doing sales work from home, including as a travel consultant with American Express. She did not know if these jobs required computer work. She said her prior work as a travel consultant was computer based and that she was not aware of what was involved in work as a travel agent now. Her previous experience working at airlines and travel agents was that a lot of the work required the use of email. She said that she couldn’t do that work now. Ms Alves explained that her work at the school was varied, but involved a significant amount of computer use.
There was no attack on Ms Alves credit or reliability. I found her to be an honest and credible witness.

Other evidence

Ms Alves relies on a number of statements that confirm she had sold her cakes prior to the accident and that she had mentioned her intention to start a cake making business.
There is a statement from her husband, Dolreich Salins, which records, among other things, discussions he had prior to the accident with Ms Alves in relation to her starting a cake business. He states that they had looked into registering the business and researched the health and safety requirements. When they purchased a property to live in one of the requirements was that the property had a large enough kitchen which could be renovated to accommodate the proposed business. By July 2018 there were discussions about what needed to be done to get the business up and running. He states that the intention was to have the business operational by the time their youngest son started school in February 2019. To this end they had looked at purchasing new bench tops for the kitchen. He was starting to develop a website and consider a digital marketing strategy. Mr Salins states that whilst Ms Alves has attempted to make cakes and decorate since the accident, he has observed that she is unable to do so with the same dexterity as she did in the past. He has observed her in a lot of pain after each attempt, often leading to the use of pain killing medication and heat or ice packs to alleviate the pain.
Ms Alves relies on a statement of Duanne Salins. The statement refers to discussions with Ms Alves in April 2018 in relation to her setting up a catering or events business. Mr Salins states that he “can personally attest to the pain that [Ms Alves] endures on a daily basis as a result of the accident”. He also states that:
“A reduction in income for the period that Jane’s sons were very young was always planned for. However, the intention had always been for Jane to return to work as soon as the boys were in school...”
There are records of purchases of equipment and a range of books relevant to a cake business and photographs of her cake making and decorating equipment. There are also pictures of cakes made by Ms Alves that she has posted on her Instagram account. The photographs of cakes she has made demonstrate Ms Alves was an accomplished cake maker and decorator.

NRMA’s written submissions

In addition to the submissions made at the assessment conference, NRMA relies on written submissions dated February 2021 and August 2021. NRMA argues that
Ms Alves sustained a temporary aggravation of an underlying condition to the right wrist and specifically denies she sustained a fracture of the scaphoid. NRMA further submits that Ms Alves’ bilateral tenosynovitis and carpal tunnel syndrome are unrelated to the accident.
NRMA submits that the temporary aggravation of arthritic and degenerative conditions affecting Ms Alves’ wrists has not given rise to any actual loss of income to date. With respect to the future, NRMA submits that the wrist injuries have largely if not entirely resolved such that any ongoing disabilities are likely to have developed in any event. NRMA argues that, regardless of the accident, Ms Alves would have developed carpal tunnel syndrome and tenosynovitis in both wrists, given the pre-existing degenerative changes in her wrists, and that she would have been similarly restricted in her capacity to return to work. NRMA submits that, given that at age 50 Ms Alves had been out of the paid workforce for seven years prior to the accident, but for the accident her most likely future circumstances are that she would have remained unemployed or, at best, returned to employment of a casual or part time nature. It is submitted that Ms Alves retains a substantial capacity to do so.
NRMA relies on the report of Dr Breit and submits that any accident-related incapacity has resolved and any ongoing incapacity relates to the underlying condition.
NRMA submits that Ms Alves has failed to discharge her evidentiary onus to prove that but for the accident the alleged business venture had a more than speculative prospect of actually commencing; that the alleged business venture had a more than speculative prospect of being profitable; and that as a consequence of the accident she is not able to pursue that venture. It is argued that the sum total of her evidence is that as at the date of the accident she had no experience in operating a catering business or any form of self-employment. NRMA submits that Ms Alves’ home was not suited to a commercial catering operation. It is also submitted that she had not undertaken any formal business analysis or projections in terms of the costs of operating the business taking into account capital costs, insurance, licencing, marketing and other operating expenses.
NRMA submits that in light of Ms Alves’ employment history in Australia and overseas, a finding should be made that her minor residual right wrist impairment due to the accident would not, of itself, significantly affect her earning capacity in the type of work for which she is qualified. It is submitted that the primary reason for Ms Alves’ ongoing disability and any compromise of her capacity to work is her right thumb arthritis and bilateral carpal tunnel syndrome, which the medical experts say is constitutional in nature. In NRMA’s submission, no damages should be awarded.

Ms Alves written submissions

Ms Alves relies on written submissions dated 9 March 2021, 30 July 2021 and 4 November 2021. It is submitted that, as a result of the accident on 30 August 2018,
Ms Alves sustained the following injuries:
(a)   resolved soft tissue injury to the left knee;
(b)   resolved haemangioma;
(c)   fractured right distal scaphoid which has clinically united;
(d)   scapholunate and scaphocapitate ligament disruption;
(e)   reflex Sympathetic Dystrophy Syndrome;
(f)    progressive osteoarthritis;
(g)   De Quervain’s tenovaginitis in the right and left wrists;
(h)   STT arthritis/synovitis, aggravated by the accident;
(i)    compensatory injury of the left upper limb, and
(j)    neck injury.
As recorded earlier in these reasons, Ms Alves’ case was refined at the assessment conference. She does not now alleged that she developed reflex sympathetic dystrophy. She does not argue that the alleged neck injury gives rise to a loss of capacity to earn. Her claim for economic loss is centred on the right and left wrist injuries.
While it is acknowledged in the written submissions that Ms Alves had pre-existing degenerative changes in her wrists, it is argued that these changes were asymptomatic. It is submitted that the accident has aggravated the asymptomatic pre-existing degenerative changes in her right wrist and has caused an acceleration of those degenerative changes.
Ms Alves’ case is that it was her intention, but for the accident, to commence operating under an ABN as a sole trader and to then re-evaluate the best business structure. Just prior to the accident, she had lined up a number of further qualifications through the Australian Patisserie Academy that she intended to complete by February 2019, prior to commencing her business.
Based on previous sales and general internet searches for similar business types,
Ms Alves’ case is that she expected to have made between $100 to $400 per cake and up to $5,000 for corporate events. She expected to make between $500 and $5,000 per week once her business commenced, assuming she made a few cakes of varying prices each week. Her average weekly income was expected to be approximately $1,000 net per week.
It is submitted that as a result of her injuries Ms Alves is unable to lift items above 1kg and cannot engage in the fundamental requirements of baking including mixing, beating and fine intricate work associated with cake decorating due to her accident related injuries. It is argued that, but for the accident, it was Ms Alves’ intention to work to the retirement age of 67. She is, it is argued, permanently incapacitated for the business she had intended to set up and operate.
It is submitted that whether Ms Alves fractured her wrist or not is of little moment. Before the accident she was capable of using a computer and baking cakes. She is no longer able to work in employment for which she is trained as a result of the injuries she sustained in the accident. She will be unemployable for the rest of her life. Her injuries have had a catastrophic impact on her life.

Economic loss is claimed as follows:
(a) past - $1,000 x 129 weeks: $129,000, and
(b) future - $1,000 x 625 (5% multiplier for 18 years) = $625,000 (less 15% for vicissitudes) = $531,250.
In the alternative, had her cake business not been profitable within 12 months of operation, it is submitted that Ms Alves would have returned to work as an office administrator or an event coordinator on a part-time basis, until her youngest child turned 15 in 2029. It is argued that it is not realistic that any prospective employer would make allowances for her accident related disability and restrictions. In those circumstances, a claim is made as follows:
Past - $92,688.33
($1,057 x 158 weeks x 50% = $83,503 plus superannuation at 11%)
Future -$528,370.06
($731.00 net per week to December 2029: 731 x 345.6: $252,633.60 plus superannuation at 13%: $285,475.97
$1,064.15 net per week, being a full-time salary to age 67:
8 year deferred value: 1,064.15 x 0.677 x 10 years to age 67 (412.9): $297,465.36 plus superannuation at 13%: $336,135.86
Total: $621,611.83 less 15% vicissitudes.

Injury findings

The parties agree that Ms Alves suffered injury to her right wrist as a result of the accident. There is a dispute as to the nature of that injury. It is also agreed that she suffered a secondary injury to her left wrist as a result of favouring her dominant right wrist. There is a contest between the parties as to the extent of the wrist injuries.
Ms Alves’ case is that the effects of the injuries are ongoing. NRMA’s case is that the injuries have resolved. Further, NRMA argues that Ms Alves did not suffer a fracture to her right scaphoid as a result of the accident.

The right scaphoid fracture

Ms Alves’ evidence is that immediately after the accident she experienced pain in her right wrist, which became a lot more painful when she returned home. She says that when she woke the following morning her wrist was swollen and blue. Over the weekend following the accident Ms Alves says that the pain continued to develop. By the following Thursday the pain was unbearable. Following diagnostic investigations her wrist was placed in a cast.
The report of the right wrist and scaphoid x-ray performed on 7 September 2018 records that appearances are suspicious of but not diagnostic of a fracture of the distal scaphoid. The regional bone scan performed on 13 September 2018 is reported to have confirmed a fracture involving the right scaphoid. A bone scan with CT performed on 18 October 2018 is reported to have shown evidence for ongoing bony remodelling involving a recent scaphoid fracture. The report of the CT scan of the right hand and wrist performed on 31 October 2019 records that there is no sign of a scaphoid fracture seen. An MRI of the right wrist on 22 March 2019 was reported to show no discernible scaphoid fracture. An x-ray of the right wrist on 25 June 2020 revealed no fractures.
Dr Hakim’s notes in relation to consultations on 2 October 2018, 9 October 2018 and 25 October 2018 refer to a “Right scaphoid #” which I take to be a reference to a right scaphoid fracture. I infer from this that Dr Hakim thought Ms Alves had suffered a fracture of her right scaphoid. On 4 November 2018[7] Dr Hakim recorded as follows in Ms Alves clinical notes:
“I got a verbal report from radiologist that the CT showed that fracture is healed and he is happy for removal of the cast.”
[7] The notes record that the visit date was 1 November 2018.
Dr Nabarro, to whom Ms Alves was referred for specialist opinion, diagnosed a right scaphoid fracture that had united. In his report of 12 April 2021, Dr Bentivoglio, orthopaedic surgeon, recorded that the investigations done of Ms Alves’ right wrist indicated that she had fractured her distal scaphoid. The doctor’s report records that he had access to relevant investigations including the MRI of the right wrist performed on 22 March 2019 and the x-ray of the right wrist on 25 June 2020. He noted the October 2018 bone scan showed remodelling of the scaphoid fracture.
While noting the bone scan findings, Dr Breit expressed the opinion that Ms Alves did not suffer a fractured right scaphoid. The doctor pointed to the CT scan of the right wrist performed on 31 October 2018, which reported no evidence of a scaphoid fracture. In his opinion, a fracture would have been seen by the CT at that point. He also noted that the March 2019 MRI scan of the right wrist showed no evidence of fracture and that some residual changes would have been expected at that time.
I infer that the radiologist referred to in the note recorded by Dr Hakim on 4 November 2018 is the radiologist who reported on the 31 October 2018 CT scan of the right hand and wrist. Dr Hakim’s notes record that the radiologist told him that the fracture had healed. I infer from this that the radiologist thought that there had been a fracture. In these circumstances, I am not satisfied that the report of the 31 October 2018 CT scan excludes the diagnosis of a right scaphoid fracture. I am not satisfied that the absence of evidence of a fracture in the March 2019 MRI scan precludes a finding that Ms Alves fractured her scaphoid given that investigations performed prior to that, namely the bone scans, confirmed the presence of a fractured scaphoid. In these circumstances, I do not accept Dr Breit’s opinion that there was no scaphoid fracture.
I am satisfied, on the basis of Ms Alves’ reported right wrist symptoms, the findings in the September and October 2018 bone scans, the note recorded by Dr Hakim of his conversation with the radiologist, together with the opinions of Drs Nabarro and Bentivoglio, that it is more probable than not that Ms Alves suffered a fracture of her right scaphoid as a result of the accident. The evidence persuades me that the fracture has healed.

The right wrist aggravation injury

Ms Alves’ case is that the accident caused the aggravation and acceleration of asymptomatic degenerative changes in her right wrist. It is also argued that although the scaphoid fracture has healed, it has caused asymptomatic arthritis to become symptomatic.
While the injury is said to be a wrist injury, the scaphoid fracture and the degenerative changes are located in the region around the base of Ms Alves right thumb. I will continue to refer to the injury as a wrist injury as it is a convenient label to apply, and one that otherwise accords with the evidence. I adopt the same approach to the left wrist injury.
The investigations, which are summarised earlier in these reasons, confirm the presence of degenerative changes in Ms Alves’ right wrist. The parties agree that
Ms Alves aggravated the degenerative changes as a result of the accident. I am comfortably satisfied that Ms Alves suffered an aggravation of the degenerative arthritis and the de Quervain’s disease in her right wrist as a result of the accident.
Ms Alves’ evidence is that she had not experienced any right wrist complaints prior to the accident. I accept her evidence in this regard. The parties agree that there are no records of any right wrist complaints prior to the accident. Ms Alves’ evidence, which
I accept, is that her right wrist symptoms have persisted since the accident. I also accept her evidence in relation to the ongoing pain and functional limitations she experiences as a result of her right wrist injury.
NRMA argues that the effects of the right wrist injury have ceased, and that the ongoing complaints are related to the pre-existing degenerative changes. NRMA relies on the opinion of Dr Breit in support of this submission. In this regard, Dr Breit expressed the opinion that:
“Her thumb base arthritis is also purely constitutional and a problem that
unfortunately happens more frequently in the female population. There is also
evidence of bilateral scapholunate ligament damage which is longstanding and
again nothing to do with this motor vehicle accident. There was a degree of
hypermobility in the hands.
While there has been aggravation of her thumb base arthritis and secondary
aggravation on the left side due to overuse the overwhelming problem is the
pre-existing arthritis which is the major reason for any ongoing treatment. I will [sic] consider any aggravation has settled over the two years since the accident and the residual problems relate to underlying arthritis and therefore any future
treatment is unrelated to the motor vehicle accident which on the basis of the
available information was relatively minor.”
While Dr Breit thought any aggravation of the pre-existing arthritis settled over the two years since the accident, and that the residual problems relate to the underlying arthritis, Ms Alves’ evidence is that her right wrist symptoms have persisted since the accident. Her evidence is that the symptoms she experiences have been consistent since that time. They have at no time resolved. Despite the presence of degenerative changes in her right wrist before the accident, those changes were asymptomatic. There is no dispute that they were rendered symptomatic by the accident or that the accident aggravated the degenerative changes. I do not accept Dr Breit’s opinion that the impact of the accident on the degenerative arthritis in the right wrist has resolved. The basis upon which he concluded that the aggravation ceased after two years is not clear on the face of his report and is not, in my view, consistent with Ms Alves’ evidence in relation to her symptoms since the accident.
The future probable effects of the pre-existing changes in Ms Alves’ right wrist are not, in my view, the subject of evidence. Dr Breit does not express an opinion that, but for the accident, the asymptomatic degenerative changes would have been rendered symptomatic, and if so, when. To the extent that it is argued that Dr Breit’s opinion that the aggravation of the pre-existing changes ceased after two years and that ongoing symptoms are related to the underlying condition constitutes such evidence, I reject the submission.
In his report of 12 April 2021, Dr Bentivoglio expressed the opinion that, in addition to a scaphoid fracture, Ms Alves aggravated the degenerative changes involving the STT joint and that the degenerative disease process had been accelerated. In his report of 28 April 2021, Dr Bentivoglio confirmed that the degenerative changes in Ms Alves’ right wrist had been aggravated by the accident, which had also caused an acceleration of the degenerative changes.
I find that Dr Bentivoglio’s opinion is consistent with the evidence that the degenerative changes were asymptomatic before the accident; were rendered symptomatic by the accident; and have persisted since that time. In this regard, I also note the opinion of Dr Nabarro that the STT arthritis had been rendered symptomatic by the accident[8].
[8] Report of Dr Nabarro to NRMA dated 25 September 2020.
I do not accept NRMA’s submission that the effects of the right wrist injury have ceased. I find that the accident aggravated and accelerated the degenerative arthritis and de Quervain’s disease in Ms Alves’ right wrist in the sense that the accident rendered those changes symptomatic, made them worse and increased the rate of the changes. I find that the effects of the aggravation and acceleration are ongoing, resulting in functional restrictions that will persist.

Left wrist

Ms Alves’ case is that she has aggravated asymptomatic degenerative arthritis and de Quervain’s disease in her left wrist as a result of favouring her injured dominant right wrist. The parties agree that she has suffered a left wrist injury in these circumstances and that the injury was caused by the accident. Drs Bentivoglio and Breit have expressed opinions that support a finding to this effect. The parties diverge when it comes to the question of whether there is an ongoing left wrist injury attributable to the accident. NRMA’s case is that the aggravation of the degenerative changes in the left wrist caused by the accident has ceased. This submission dovetails with NRMA’s argument that the effects of the accident caused aggravation of degenerative changes in the right wrist have resolved. I have rejected that argument. I have found that the aggravation and acceleration of the degenerative changes in the right wrist, caused by the accident, persist.
I accept Ms Alves’ evidence that she developed injury to her left wrist because she was favouring her injured right wrist. I also accept her evidence that her left wrist injury persists. As to the nature of the left wrist injury, Dr Nabarro expressed the opinion that STT arthritis and de Quervain’s disease in the left wrist had been rendered symptomatic as a result of the accident. Dr Breit expressed a similar view, at least so far as the arthritis was concerned. I find that Ms Alves aggravated and accelerated pre-existing asymptomatic arthritis and de Quervain’s disease in her left wrist as a result of favouring her injured right wrist, and that the left wrist injuries have been caused by the accident. I find that the aggravation persists, and will persist to the extent that Ms Alves continues to favour her right wrist.

Damages

The only heads of damage I am required to assess are past and future economic loss. In this context, issues arise as to the nature and extent of her loss of capacity to earn, whether the loss of capacity to earn has been, and will be, productive of financial loss, and the measure of the loss.
I have found that Ms Alves suffered injury to her left and right wrists as a result of the accident. Her case is that there are no other accident caused injuries that have given rise to a loss of capacity to earn.
Ms Alves’ evidence is that she has significant functional limitations as a result of her wrist injuries. Her right hand grip is weak. She has started dropping things. She can only drive for short distances before she experiences pain. She generally wears splints when she drives. She avoids lifting anything of weight, stirring pots or cutting vegetables as these tasks cause her pain. She does not use buttons on her clothes anymore as gripping the buttons tends to cause her pain. She experiences shooting pain when using a computer, requiring her to stop and apply ice. Her evidence is that once the pain kicks in she has to stop performing the task being undertaken at that time. She said that her pain does not have an ‘on off button’ and that she can’t go through a day without pain. I accept Ms Alves’ evidence in relation to the pain and functional limitations she experiences as a result of her wrist injuries.
While he attributed her loss of work capacity to the underlying arthritis, Dr Breit expressed the opinion that Ms Alves is quite severely limited in her ability to work either full time or part time, and that she could not work as a baker. Dr Bentivoglio did not directly tackle the question of work capacity, recording in his report that at the time of the accident Ms Alves was not working. He thought that while the prognosis for the left wrist was good, the prognosis for the right was guarded. His opinion that Ms Alves had regained the majority of function present in both wrists is not consistent with her evidence, which I accept, in terms of the loss of function she experiences. Nor is Dr Bentivoglio’s opinion consistent with the findings reported by the VCC, to which I now turn.
The VCC assessed Ms Alves at NRMA’s request. As part of the assessment a physical assessment of Ms Alves was undertaken. That assessment resulted in findings that she had:
a.    reduced right wrist range of motion;
b.    reduced right thumb CMC range of motion;
c.     below average right hand power;
d.    below average left hand power, and
e.    below average right hand dexterity.
The VCC report also recorded a range of symptoms including pain and stiffness in the right wrist together with intermittent sharp pain at the base of the right and left thumbs. Ms Alves demonstrated a range of restrictions, including with respect to elevated work, pushing, pulling, lifting, carrying, right hand power, key grip strength and dexterity and left hand power and key grip strength.
Mr Bryden-Brown, physiotherapist, conducted the functional assessment for the VCC. He recorded in his report that Ms Alves demonstrated a cooperative performance on assessment; that there was a high level of consistency in the assessment; and pain behaviour was not considered a feature of the assessment. Mr Bryden-Brown concluded that, based on his assessment, Ms Alves was not physically capable of working as a pastrycook in any capacity. She did not demonstrate the dexterity and manual handling capacity required for the role. She was not suited to a role requiring constant fast paced use of her hands such as data processing, packing and sorting, roles requiring weighted forceful activity with either hand, lifting and carrying beyond a sedentary level of physical demands, sustained work from ladders or sustained work above shoulder height. I accept that Ms Alves experiences the reported restrictions as a result of her wrist injuries.
The VCC report further records that Ms Alves has significant vocational potential despite her wrist injuries. It is stated that there are modifications available in the workplace to reduce the use of her hands, such as using voice activated software or roles which are not predominantly focused around typing. It was concluded that Ms Alves has significant transferable skills and strong reasoning skills to be able to consider a range of roles some of which she has undertaken in the past and others which would be familiar to her. It was determined that Ms Alves was physically capable of work in the vicinity of 25 hours a week (5 hours, 5 days a week). It is stated that
Ms Alves could consider returning to a role she has undertaken either directly or as part of her duties in the airline industry or as a travel consultant. She could also consider a role as a ticket seller, in a call centre, as a receptionist, telemarketer, sales assistant or, with training, an office manager.
NRMA argued that I should find that Ms Alves is capable of working five hours a day, five days a week, in line with the opinion expressed in the VCC report.
Ms Alves has worked in a variety of administrative and customer service roles for various airlines in Kenya, Qatar and the United States. She migrated to Australia in 2009. Her first job in Australia was with a school undertaking office administration on a full time basis. She performed this work until the birth of her first child in mid-2011. She has not worked since. She completed High School up to year 12 and has undertaken a range of courses since that time including a Typing Certificate, a Diploma in French, a number of travel courses and catering courses related to fondants and pastry. As to the latter, she undertook courses through the Australian Patisserie Academy. She has also held a First Aid Certificate although it is no longer current.
The evidence satisfies me that, as a result of the wrist injuries she suffered in the accident, Ms Alves cannot and will not be capable of earning income as a pastry cook. Given that it was her skills in this area that were the basis of her intention to start a cake making and decorating business, I am satisfied that she will no longer be able to do so. The challenge is that, while I am satisfied that, prior to the accident, she had taken a range of steps to bring the business into being, the business was not a going concern at the time of the accident, and was not likely to be until February 2019. The evidence does not, in my view, allow me to make findings as to the probable income Ms Alves would have derived from the business. Her evidence as to the prices that her cakes would have attracted, and the potential volume of cake sales, is speculative.

Past economic loss

Ms Alves contends for an award of $129,000 for past economic loss on the basis that she would have earned $1,000 a week over a period of 129 weeks once her business commenced. A claim is made in the alternative on the basis that had Ms Alves’ business not been profitable she would, but for the accident, have worked part time in an administrative role. On this basis the sum of $92,688.33 is claimed. This amount includes an allowance of $83,503 for lost wages plus 11% for superannuation.

I have rejected NRMA’s case that Ms Alves’ wrist injuries attributable to the accident resolved after two years. I have found that the injuries, with associated functional limitations, persist.
There is significant uncertainty in terms of assessing the financial loss attributable to Ms Alves’ injuries. Mr Turnbull SC submitted that an alternative to an award based on the loss contended for by Ms Alves would be to allow a buffer of $20,000 a year for the past.
I am satisfied that, but for the accident, Ms Alves would have commenced her cake business in or about February 2019. I accept the evidence of Ms Alves and her husband in relation to the preparatory work they had done to make a go of the business. The evidence satisfies me that Ms Alves would have run the business on a part time basis of up to 25 hours a week. This finding accords with her evidence as to the time she spends at the start and end of each school day looking after her children and related responsibilities. Although she has given evidence in relation to the amounts for which she thinks she could have sold her cakes, I consider that determining the probable income that would have been derived from the business is an entirely speculative exercise. If the cake business was not successful, I consider it probable that Ms Alves would have undertaken part time work of up to 25 hours a week in an administrative role, similar to that she was performing at the school or in the travel industry.
I am satisfied that Ms Alves’ wrist injuries have given rise to a loss of capacity to earn that has been productive of financial loss. Measuring the loss is not, in my view, something that can be done by precise mathematical calculation, particularly given the imponderables associated with the cake business. I consider that the appropriate way to compensate Ms Alves for her past economic loss is to allow a buffer of $50,000.

Future economic loss

I am satisfied that Ms Alves will continue to experience functional limitations involving the use of her wrists as a result of the aggravation of pre-existing degenerative changes in her wrists. I am comfortably satisfied that these functional limitations will give rise to a loss of capacity to earn that will be productive of financial loss. The difficulties assessing Ms Alves’ past financial loss based on her cake business also arise in her claim for future economic loss. I am not satisfied that I should assess her future loss on assumptions underpinned by earnings from the cake business.
Ms Alves’ evidence is that she would have worked part time, 25 hours a week, until 2029, when her youngest child turns 15. From that time, until age 67, her evidence is that she would have worked full time. I accept her evidence in this regard and find that it represents her most likely future circumstances but for the wrist injuries sustained in the accident.
The evidence satisfies me that Ms Alves would struggle to work in some of the occupations in which she was engaged prior to the birth of her first son. I accept her evidence that her work at the school and in the travel industry included a significant amount of computer based tasks. I also accept that Ms Alves has significant limitations in relation to her ability to perform computer work.
NRMA’s primary case is that there should be no award for future economic loss because the injuries caused by the accident have resolved. NRMA’s case in the alternative, based on the findings of the VCC, is that Ms Alves can work 25 hours a week in suitable employment. Given the VCC findings, NRMA argues that while there may be a loss of capacity to earn, the loss of capacity will not be productive of financial loss until at least 2029, when Ms Alves would have returned to full time work. NRMA submitted that if an award were to be made for the future a buffer would be an appropriate way to compensate Ms Alves. In this regard, it was submitted that an award of up to $100,000 would be appropriate.
Ms Alves’ case, simply put, is that she has no residual earning capacity and that she should be compensated accordingly. It was submitted that, to the extent she had a theoretical capacity to earn, there was no realistic prospect that she could exercise that capacity. In this regard, Mr Turnbull SC referred to Nominal Defendant v Livaja [2011] NSWCA 121 in which it was held at [65] that:
“There are distinctions to be drawn between injury and impairment or disability
consequent upon injury, and between impairment or disability and diminished
earning capacity. Because an individual has a physical and mental ability to
undertake certain tasks, it does not necessarily follow that he has a significant
residual earning capacity. Earning capacity must be measured by reference to
the individual, when viewed with all his or her characteristics, in the labour
market. When a person in middle age has spent all his or her life in a skilled or
semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of
the task. There must also be a practical assessment of the likelihood of the
individual obtaining employment in some such occupation…”
For the purposes of s 4.7 of the MAI Act, I find that, but for the injuries she sustained in the accident, Ms Alves’ would have undertaken work of an administrative nature, similar to that she had previously performed at the school or in the travel and airline industries. I am satisfied that, uninjured, she would have worked on a part time basis, 25 hours a week, until 2029, at which time she would have worked full time until the age of 67. I find that in performing this work, Ms Alves’ capacity to earn would have been $731 net per week for part time work of 25 hours a week, and $1,064 net per week for full time work. I am comfortably satisfied that these findings accord with Ms Alves’ most likely future circumstances but for the injuries she suffered in the accident.
The VCC assessed Ms Alves’ general reasoning score to be in the average range. It was thought that this finding was consistent with her educational history and consistent with a person capable of completing training up to the Advanced Certificate level and possibly Diploma level if motivated. Her reading score was assessed to be bordering on the above average range. Her numeracy score was assessed to be at least in the average range. The VCC report records that Ms Alves presented as a pleasant and intelligent individual. This observation is consistent with the impression I formed of her at the assessment.
The VCC concluded that Ms Alves has significant vocational potential despite her wrist injuries. She reported unrestricted tolerances in sitting, standing, walking, crouching, kneeling, negotiating sloped surfaces and uneven ground and ascending and descending stairs. There were considered to be modifications available in the workplace to reduce the use of her hands, including voice activated software. She was found to have significant transferable skills and strong reasoning skills. As to Ms Alves’ residual capacity to earn, the VCC report identified a range of jobs she could perform despite the functional restrictions that she experiences. Ms Alves’ response to this was that while there are some tasks associated with the identified roles she could perform, she could not perform sustained computer based work. Her experience, in both the travel industry and her work at the school, was that there was a significant amount of computer based work in all the proposed roles. Her evidence was that she wasn’t capable of performing that work.
It is not practical to conclude that, because Ms Alves is capable of performing many of the tasks associated with a role, she can successfully carry out that role in circumstances where the role involves computer based work that is beyond her tolerances. This practicality having been acknowledged, I am satisfied, based on the findings of the VCC report referred to earlier, that Ms Alves does have a residual earning capacity. I consider that the capacity is more than theoretical. I am satisfied that there is work available to her on the open labour market that she is capable of performing on a part time basis.
In terms of the functional restrictions that arise in relation to her wrists in the context of computer based work, I accept that, as recorded in the VCC report, headsets and voice activated software are available for use in the workplace. This equipment would reduce the amount of keyboard and mouse use, with the result that Ms Alves could work as a travel consultant, in a call centre or as a receptionist, within her tolerances.
The VCC concluded that Ms Alves had the capacity to work ‘in the vicinity of 25 hours a week’. While I consider this assessment to be somewhat optimistic, I am satisfied that Ms Alves retains the capacity to work five hours a day, three days a week, equating to a 15 hour week. I am satisfied that this reflects her practical retained capacity to earn until the age of 67. I assess her future economic loss until 31 December 2029 on the basis that, but for the accident, she would have worked 25 hours a week during this period and that she is capable of working 15 hours a week. From 1 January 2030 until 31 December 2039 I have assessed her damages on the basis that she would, but for the accident, have worked full time and that she is capable of working 15 hours a week.
On the basis that Ms Alves’ earnings for a 25 hour week have been agreed at $731 net per week, I find that Ms Alves has a retained earning capacity of $439 net per week, representing a 15 hour week. For reasons that follow, I have applied a deduction of 20% for vicissitudes. I assess future economic loss in the sum of $220,498 as follows:

a. 1 January 2022 – 31 December 2029 - $80,732
$292 net per week ($731 – retained earning capacity of $439 = $292) x 345.6 (8 years multiplier) = $100,915 less 20%
b. 1 January 2030 – 31 December 2039 - $139,766
$625 net per week ($1064 – retained earning capacity of $439 = $625) x 0.677 (8 year deferred multiplier) x 412.9 (10 year multiplier) = $174,708 less 20%

I allow loss of superannuation at 13% in the amount of $28,665.

Vicissitudes

NRMA argued that the reduction for vicissitudes should be 100%. I reject that submission. It is inconsistent with my findings in relation to injury and loss of capacity to earn caused by the accident. An alternative submission was made that damages should be reduced by 35% - 50% to reflect the possibility that Ms Alves’ pre-existing neck and shoulder symptoms would have had an adverse impact on her ability to earn.
I have considered the GP notes that record pre-accident neck and shoulder complaints. By way of example, the GP notes record that on 21 July 2015 Ms Alves complained of left shoulder pain with overhead work which had been a problem for four years. On 21 January 2018 Dr Hakim recorded complaints of neck pain and stiffness and that the pain radiated into the right shoulder and arm. I have also taken into account the related investigations, which include a CT scan of the cervical spine performed in January 2018. The scan reported the presence of degenerative disc disease. An ultrasound of the left shoulder performed in July 2017 identified subacromial bursitis. An ultrasound guided steroid injection of the left shoulder was performed on 30 August 2017. Ms Alves’ evidence was that she manages her shoulder symptoms with exercises. I am satisfied that Ms Alves continues to be troubled by shoulder symptoms.
I have taken into consideration the possibility that, but for the accident, the neck and shoulder complaints may have given rise to a loss of capacity to earn that was productive of financial loss. I have determined that these possibilities should result in an increased allowance for vicissitudes, which I assess at 20%.

Assessment of damages summary

Under sub-section 7.36(1)(b) of the MAI Act, I am required to make an assessment of the amount of damages that a court would be likely to award. I assess damages as follows on the findings set out above:
· Past loss of earnings (incl. superannuation) $50,000
· Future loss of earnings (incl. superannuation) $249,163
Total Damages Assessed$299,163

Costs

NRMA is to pay Ms Alves’ costs in accordance with the MAI Act and the Regulations. If there is any dispute in relation to cost the parties have liberty to apply.

Brett Williams
Member (Motor Accidents Division)
Personal Injury Commission

[2022] NSWPIC 91

1 March 2022