Inthaphala v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Inthaphala v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPIC 541
CLAIMANT:	Thanawat Inthaphala
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Belinda Cassidy
DATE OF DECISION:	29 November 2021
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages claim; claimant front seat passenger in vehicle driven at speed by driver affected by alcohol (blood alcohol level between 0.150 and 0.192 at time of accident); vehicle belonged to claimant’s step-father and claimant had handed over keys to driver on trip home from restaurant; claimant sustained L3 crush fracture (28%) and developed hip pain after accident; claims for past and future loss of earnings and earning capacity; claimant worked as furniture spray painter and had a variety of jobs after accident; claimant had pre-accident anxiety and depression not fully disclosed and pre and post-accident drug and alcohol issues not fully recalled; Held- claimant’s evidence unreliable; his contributory negligence assessed at 33%; issues of earnings before accident, due to periods of unemployment after accident and most likely future circumstances; damages assessed at nearly $83,000 and costs assessed under Motor Accident Injuries Regulation.
DETERMINATIONS MADE:	1. On the issue of contributory negligence, the claimant’s damages are to be reduced by 33% (one-third) on account of the claimant’s contributory negligence. 2. The amount of damages for the claim is $83,103.78. 3. The amount of the claimant’s costs in the matter is $27,265.92 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

Background

On 12 August 2018, Mr Thanawat Inthaphala (the claimant) was a front seat passenger in a vehicle owned by his stepfather. The driver of the vehicle, Ethan Southall, lost control and crashed into a telegraph pole. Mr Southall returned a breath test result of 0.183 at the scene and a blood alcohol test result of 0.169 sometime later[1].
[1] Police report, page7, document 2 in the insurer’s bundle.
Mr Inthaphala was injured and made a claim, first for statutory benefits and then later for damages, against NRMA, the third-party insurer of his stepfather’s vehicle. NRMA has admitted fault on the part of Mr Southall but alleged contributory negligence on the part of the claimant.
The parties to the proceedings have been unable to resolve the claim and so, on or about 15 October 2020, Mr Inthaphala referred his claim to the former Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority for assessment.
The Personal Injury Commission (PIC) commenced operation on 1 March 2021. Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides:
(a)    DRS is abolished;[2]
(b)    the DRS matter in this claim is pending proceedings before the PIC;[3]
(c)    I am a Member of the Motor Accidents Division of the PIC and I am empowered to assess the claim,[4] and
(d)    the Motor Accident Injuries Act2017 (the MAI Act), the Motor Accident Injuries Regulation and the Motor Accident Guidelines continue to apply.[5]
[2] Clause 3.
[3] Clause 14B(1).
[4] Clause 14B(3).
[5] Clause 14B(4)(c).
I have held two preliminary conferences and an assessment conference on 12 November 2021 at which the claimant gave evidence.

What is in issue between the parties?

Mr Inthaphala concedes there must be a finding of contributory negligence made against him. The insurer concedes entitlement to all the heads of damage claimed.
At the conclusion of the assessment conference, the following issues remain to be determined:
(a)    is the claimant is a reliable witness;
(b)    what is the degree of the claimant’s contributory negligence, and
(c)    what should the claimant be awarded for his past and future economic losses?

REVIEW OF THE EVIDENCE

Medical evidence

The South Western Sydney Local Health District has provided the notes regarding the claimant’s treatment at Liverpool Hospital[6]. The claimant was admitted on 12 August and discharged on 15 August 2018 with medications (Targin, Endone and Coloxyl). He was advised to follow up with his general practitioner.
[6] Document A6, page 20 of the claimant’s bundle.
The main injury noted was a compression type L3 fracture which did not require surgery. The claimant was also observed to have chest bruising and a seat belt mark.
Under the heading ‘social history’ is a note of ‘depression’ with ‘no regular meds’.[7] The notes from this admission include ‘Had ETOH’ (alcohol) and ‘occasional cocaine’.[8]
[7] Discharge Summary page 25 of the claimant’s bundle.
[8] Pages 28 and 29 of the claimant’s bundle.
In the 14 September 2018 progress note[9] there is a record of a further collapse of the spinal fracture but ‘nil pain’. A final progress note dated 9 November 2018 resulted in a letter to the claimant’s GP[10] which recorded ‘no pain at rest, lumbar spine pain when exerting himself and an ability to lift 10kgs without significant discomfort’. The claimant was advised that with time and physiotherapy ‘he will make a full recovery’ and he was certified fit to return to work with restrictions in place for three months.
[9] Page 34 of the claimant’s bundle.
[10] Page 39 of the claimant’s bundle.
Dr Raafat Ghaaly has provided a series of certificates[11] as follows:
(a)    31 October 2018 - the diagnosis was of compression fracture L3 and the management plan analgesia. Dr Ghaaly certified no current work capacity from 12 August 18 to 12 November 2018.
(b)    5 December 2018 – no plan for treatment is recorded. Mr Inthaphala was certified with a capacity for lifting and pushing 10 kg, minimal bending but OK to stand and OK to drive. The claimant was said to be fit for some work from 12 November to 12 December 2018 for his normal hours and days.
(c)    12 December 2018 – again no plan for treatment is recorded and the claimant’s lifting and pushing restrictions were increased to 20 kg, bending and twisting were said to be permitted ‘as tolerated’. The claimant was said to be fit for his normal hours and normal days from 16 December 2018.
[11] A1 – A3 of the claimant’s bundle.
Within the claimant’s bundle is a report to Dr Ndhlovu following an ultrasound of the left hip dated 29 January 2020 where the history is recorded of lateral hip pain and tenderness. The report suggests a diagnosis of trochanteric bursitis superficial to gluteus medius. A referral dated 1 June 2020 from Dr Ndhlovu for an ultrasound guided injection of the left hip is also before me[12]. In the insurer’s bundle is an ultrasound of the left hip dated 14 December 2020[13] reporting ‘mild thickening of the trochanteric bursa consistent with mild trochanteric bursitis’ and on 15 December 2020[14] an ultrasound of the right hip with the impression of ‘mild trochanteric bursitis’.
[12] Documents A4 and A7 of the claimant’s bundle.
[13] Page 542 of the insurer’s bundle.
[14] Page 543 of the insurer’s bundle
On 21 September 2020 the claimant attended Bankstown – Lidcombe Hospital’s emergency department for ‘lower back pain after exercising a few days ago’ (push-ups and sit-ups). A diagnosis of ‘mechanical back pain’ was made and he was given Panadeine Forte and sent home for review by his GP and CT scan if pain continued[15].
[15] A8 in the claimant’s bundle
Notes have been provided from MyHealth Brigadoon printed on 18 June 2021[16] recording the following:
(a) the claimant’s first visit was 22 September 2020 for lower back pain after the hospital admission referred to in [14]. Other complaints were noted and ‘also has symptoms suggestive of IBS’ (irritable bowel syndrome)’;
(b)    the next day he was reassured that there was nothing other than the old compression fracture and he was advised to see a physiotherapist. It is also noted that his GI (gastrointestinal) symptoms ‘have started to ease’;
(c)    on 30 September 2020 the diagnosis of IBS was made and a prescription for it given. This medication was ceased in December when it was recorded ‘no more IBS symptoms’;
(d)    there were two consultations in October for lower back pain with the claimant ‘not having had physiotherapy as previously advised’;
(e)    in December 2020 the claimant attended for left hip pain and other issues and sought a medical certificate due to back pain on 29 December;
(f)    on 19 January 2021 the claimant attended with rib pain following being hit by a friend while drunk;
(g)    in March 2021 the claimant attended for a review with ‘back pain still the same’ and he was seeing a physiotherapist, and
(h)    on 15 June 2021 is an entry ‘battling depression endo didn’t help’. A care plan was prepared, a referral was given to a psychologist and a prescription for Efexor (an antidepressant) was provided.
[16] A11 in the claimant’s bundle.
Ms Joanne Sorrentino Psychologist from Pro-Fit Physio and Allied Health has provided a report ‘to whom it may concern’ dated 23 April 2021[17]. It is not clear who referred the claimant to Ms Sorrentino (her report is dated before the referral in [15(h)]. She had been providing him with treatment since December 2020 and her report notes:
[17] Document A10 in the claimant’s bundle.
(a)    Mr Inthaphala has an Adjustment disorder with mixed anxiety and depression;
(b)    he cannot engage in activities he used to enjoy such as his martial arts;
(c)    he has difficulties mowing the lawn and bending over to put on socks and shoes which causes low confidence and sense of worth;
(d)    his sleep is affected due to his injuries;
(e)    since the accident and due to pain, alcohol and smoking have increased;
(f)    he describes elevated anxiety when in a fast car with flashbacks, and
(g)    he rates as having extremely severe depression and severe anxiety.
The Campbelltown Medical Centre (CMC) records suggest the claimant was a longstanding patient of the practice[18] and the doctors who the claimant has consulted include Dr Ghaaly and Dr Ndhlovu. Some of the relevant entries include:
[18] Three separate bundles have been included by the insurer as documents R15 (entries 27 August 2018 - 28 February 2019, R16 (26 September 2018 - 9 April 2021) and R17 (2 August 2013 – 8 January 2018).
(a)    9 Feb 2014 – anxiety, says that he thinks too much, always anxious, has been on weed as well - now stopped, takes alcohol and smokes as well. Mr Inthaphala was prescribed Avanza (an antidepressant) which appears to have been continued in March and April 2014.
(b)    6 August 2014 - anxiety, stress, panicky, counselled. The claimant was prescribed Valpam (an antidepressant) and Antenex (a sedative).
(c)    15 January 2015 – anger management issues and a mental health plan was prepared (the claimant had also reported tinnitus and ear problems on several occasions in 2015).
(d)    28 June 2015 - includes a reference to a knee injury sustained when drunk at a party and family issues with ‘?depression’. This led to a further consultation on 30 June 2015 and a referral to a psychologist.
(e)    7 December 2015 – multiple issues including depression and lower limb scarring from work injuries. He was counselled and prescribed Avanza and on 21 March 2016 a further prescription for Avanza was provided.
(f)    9 June 2016 – records of counselling the claimant and advising him noting he ‘has been taking drugs – MDMA’ (ecstasy).
(g)    September and October 2016 - prescriptions for Endep (antidepressant).
(h)    January 2017 – a martial arts injury and several consultations in February 2017 following a foot injury after wrestling with a friend while drunk. This appears to have necessitated some time off work.
(i)    Endep was prescribed in April 2017 for anxiety and depression.
(j)    13 June 2017 - ‘needs script for Endep. has been on it for 2 years, feels it works but he feels flat’. The claimant reported visual hallucinations and he was referred to a psychiatrist and given a script for Endep.
(k)    5 September 2017 – an off-work certificate was given for ‘flu’.
(l)    3 October 2017 – there is reference to a psychiatrist and that the claimant was ‘off Endep’ and his antidepressant was changed to Mirtazapine. He was given an off-work certificate for anxiety with depression.
(m)     On 5 and 14 October he was given off work certificates.
(n)    On 23 October 2017 the claimant complained about Mirtazapine and his script was changed to Lovan and he was given an off-work certificate. When seen on 28 November 2017 by Dr Fatima, he had not started Lovan and it is reported that he had not told his psychiatrist about his hallucinations. It was suggested he see a male psychiatrist, Dr Mark Cross.
(o)    3 January 2018 - poor sleep for two weeks after a Christmas alcohol binge. Also noted ‘using Cocaine weekly x 12m’ (weekly for a year) and ‘does nothing all weekend after work and ‘marijuana use from 14 – 18 previous psychologists not helpful’. He was given an off-work certificate and counselled about drug addiction and advised to ‘reduce illicit drug use’.
(p)    On 8 January 2018, Dr Ndhlovu noted the claimant was sleeping well on Melatonin but had not the night before and was ‘still hearing voices / no distinct voices’ and was given an off-work certificate because of insomnia.
(q)    There is then a gap in the notes[19] until 27 August 2018 after the accident. There are about six attendances for back pain related issues and the claimant’s ear problems also continued during this period.
(r)    In February 2019 there were two attendances in relation to a hand injury.
(s)    There is another gap in the notes[20] and on 26 September 2019 a history was taken of ‘addicted to cocaine discussed need to go to drug and alcohol centre, drinking on weekend’.
(t)    Further attendances in October 2019 concerned drug addiction and other matters.
(u)    On 13 December 2019 the claimant reported recurrent nausea and vomiting, blood-tinged runny stools and eating a lot of fast foods.
(v)    On 21 and 29 January 2020 there were attendances for left hip pain and then on 21 May 2020 a note of ‘still drinking and sniffing cocaine though not employed does little exercise / poor motivation’.
(w)   The claimant returned for hip pain and treatment on four occasions in June and July 2020 as well as other matters.
(x)    After a consultation in August 2020 for night sweats there is no further attendance until 9 April 2021 for a matter unrelated to the claim.
[19] Between R17 and R15.
[20] Between R 15 and R16 in the insurer’s bundle.
The claimant has consulted other medical practices whose notes include the following:
(a)    Dr Andrews of the Leumeah Family Medical Centre[21]:
[21] Document R19 in the insurer’s bundle.
(i)20 August 2018 - car accident, good range of back movement Norgesic (muscle relaxant) prescribed and referrals given to Dr Dave (orthopaedic surgeon) and physiotherapist, Mr Yin.
(ii)10 September 2018 - his back got better.
(iii)9 September 2019 - no mention of the back injury. The claimant was working in a restaurant and had an upper respiratory tract infection requiring time off. Medical certificates were given for all of that week.
(b)    Dr Marley Henin of Panania Family Doctors[22] does not record the claimant’s motor vehicle accident or back injury and his notes record:
(i)10 November 2020 – anxious person ‘this anxiety start to affect his colon ? IBS he is better on colofac (had it from previous GP) but still not improved’. The claimant asked him about starting on an antidepressant and going to see a psychologist. A mental health plan was developed and a referral to Pro-Fit was given.
(ii)1 November 2020 - results were given from his blood tests and there was ‘general discussion about medical condition’.
(c)    Old Leumeah Medical Centre[23] also does not contain reference to the motor vehicle accident or the claimant’s back pain. There is a lengthy first attendance on 30 September 2019 noting depression and anxiety, ‘abuses cocaine and alcohol, in financial difficulties, would like to quit cocaine’. The claimant is reported to have said he ‘feels low and depressed and does not enjoy things as before everything feels dull’. He was given referrals to Grace Canales and Dr Ivan Bakich for drug abuse, alcohol abuse, depression and anxiety. There is a further note from 10 February 2020 when the claimant attended for other things including insomnia.
[22] Document R20 in the insurer’s bundle.
[23] Document R21 in the insurer’s bundle.
Dr Mona Idris of the Lighthouse MacArthur Northside clinic saw the claimant before his motor vehicle accident. In a report to Dr Fatima of CMC dated 26 September 2017 she spoke of a ‘long history of anxiety and depressive symptoms worse in the context of social stressors’. She noted that the claimant felt awkward, was having panic attacks, worries and thinks the worst and had lost interest in things. She also noted the claimant ‘abuses alcohol and cocaine mainly on weekends’ and had abused cannabis in the past. The claimant is recorded as having said he was working as a joiner but was thinking of mining. She recommended he consult the organisation Headspace for ongoing support to improve his self-esteem and anxiety management.
The MacArthur Physiotherapy records[24] confirm the claimant attended three times on 20 and 30 September and 14 October 2019. An organisation called ‘360 Physio’ has produced records[25] which show that between 28 October 2020 and 27 February 2021 the claimant attended 20 times for physiotherapy sessions.
[24] Document R23 in the insurer’s bundle.
[25] Document R24 in the insurer’s bundle.
Medicare pharmaceutical records[26] confirm the claimant filled a number of prescriptions for anti-depressants before the accident including in 2014, 2015, 2016 (Mitrazapine and Amitriptyline), 2017 (Amitriptyline and Fluoxetine) but it does not appear any have been filled since the accident.
[26] Document R25 in the insurer’s bundle.
Also of relevance to the issues in dispute is the prescription of Meloxicam (otherwise known as Mobic) and the filling of that prescription on 26 July 2019 (30 tablets) and 11 December 2020 (30 tablets).

Medico-legal assessments

Claimant’s medico-legal assessments

Dr Graeme Mendelsohn, general surgeon and musculoskeletal consultant provided a report dated 30 March 2020 for the claimant[27].
[27] Document A5 in the claimant’s bundle
He takes a history that the claimant left school in year 10 then returned to do his HSC. After leaving school he started training as a cabinet maker but did not complete his apprenticeship and that ‘at the same time’ he worked as a spray-painter, painting kitchen cabinets which he continued. He records the claimant has no certificate.
The doctor records that Mr Inthaphala smokes 20 to 25 cigarettes a day and binge drinks on the weekend.
The claimant reported no previous back problems before the accident but that he noticed immediate back pain after the accident and had five days in hospital where he was fitted with a rigid body brace which he used for two months. Dr Mendelsohn records some physiotherapy for three weeks, a year after the accident.
Mr Inthaphala was said to have returned to work after three or four months installing petrol tanks and fuel lines which was hard work and he had physiotherapy to help. Dr Mendelsohn records that about 10 months after the accident, the claimant was prescribed the anti-inflammatory Meloxicam (Mobic) ‘which he took on a regular basis’.
The employment history taken by the doctor suggests the claimant worked until August 2019, then went to work in the family restaurant until it was sold in November 2019. The claimant reported problems with heavy lifting and straining, twisting and turning.
The claimant said he consumed anti-inflammatories on a regular basis and occasional Panadol. He complained of:
(a)    low back pain if he bends down and always present with activity;
(b)    in the last three months he has had discomfort in his left buttock when out of bed and walking (500 metres);
(c)    difficulty negotiating stairs gong up causes discomfort in left hip;
(d)    no real problems with lifting and carrying;
(e)    he does not play sports and wants to return to boxing but has not resumed his Thai Martial Arts activity, and
(f)    he has issues with dressing but can mow the lawns and do light housework.

Dr Mendelsohn noted the 28% compression fracture and said the claimant was ‘likely to have continued problems with pain in the lumbar region and difficulties with bending, stooping and twisting. He will have problems with heavy lifting and straining’
The doctor thought that the treatment has been appropriate and that Mr Inthaphala required an exercise program to improve his core strength as well as continued analgesia and anti-inflammatories.
Dr Mendelsohn expressed the opinion that because of his restrictions it will be harder for the claimant to find work but there was a wide range of activities he could do and he could work full time duties but needs to take care. He thought there would be no reduction in Mr Inthaphala’s working life.
In a supplementary report dated 12 April 2021[28], Dr Mendelsohn recorded that the claimant had obtained employment in August 2020 working in a quarantine hotel undertaking contact trace registration. He worked 12 hours shifts, four times a week.
[28] Document A12 in the claimant’s bundle.
Dr Mendelsohn recorded difficulties with domestic duties and expressed similar views about work (could work full time but not in the job he used to do and no reduction of working life) and again said the claimant was likely to have permanent problems.
He also found the claimant’s trochanteric bursitis is related to the accident but gave no reasons why, when expressing that opinion.
Dr Horace Ting provided a report dated 11 January 2021[29]. While Dr Ting was provided with some documentation, he did not have any of the GP notes and he was providing a report concerning the claimant’s ‘residual functional capacity, psychological and cognitive sequelae, employability, suitable vocational options, current and future earning potential and if any loss of earning capacity’.
[29] Document A9 in the claimant’s bundle – the report while dated 11 January 2011 followed an assessment on 7 December 2020.
Dr Ting observed that the claimant spoke slowly and his speech was low and flat and ‘he appeared tired and struggled to stay focused’.
He noted the circumstances of the accident and documented the claimant’s treatment. He was given a history that Mr Inthaphala worked as an apprentice cabinet maker but did not complete his apprenticeship because of the accident. He noted the claimant was required to handle weights of up to 200 kg.
Dr Ting took a history about the Priority Fuel job which commenced in January 2019 and required him to travel to Dubbo. Mr Inthaphala reported that employment ended in July due to under performance and his inability to handle 100 kg tanks.
Dr Ting suggested that it was hard for the claimant to find jobs although he obtained a forklift ticket and a traffic control ticket. Dr Ting notes that the claimant found work on 3 June 2020 as a casual unloading containers and handling weights of up to 25 kg but that he was not able to keep that job due to pain and he left in September 2020.
Dr Ting notes the claimant’s next job, which started on 6 September 2020 was as a line marker, but this too caused problems due to prolonged sitting and sweeping, shoveling and pouring materials. The claimant also mentioned his Irritable Bowel Syndrome diagnosis during this time.
Dr Ting then noted the claimant’s job as a counter attendant at Amora Hotel and the claimant’s report of mild pain during his shifts.
Dr Ting took a history of depression during high school over the loss of a girlfriend. Dr Ting records that the claimant saw a psychologist once and took an anti-depressant for a few months. ‘He did not recall any other mental health problems … that might have affected his work capacity at the time of the subject accident.’
Dr Ting said the claimant was currently depressed, worried about his work and future. Mr Inthaphala had disturbed sleep due to pain and no outlet (such as his Thai boxing).
Dr Ting explored with the claimant his pre-accident career path (he intended to finish his apprenticeship, work for a while, then trade on his own) and interests (social work, nursing and truck driving).
Dr Ting’s was of the view that the claimant’s lumbar spine and psychological consequences have limited his ability to find work and pursue his chosen career as a cabinet maker. He suggested a number of options including a light delivery driver or courier, traffic controller, forklift operator or counter attendant. Dr Ting suggests the claimant needs to improve his physical conditioning by undertaking an exercise program and have some psychological intervention, career coaching and counselling as well as occupational and rehabilitation services.
Dr Frank Chow psychiatrist provided a report to the claimant’s solicitors.[30] He had a number of documents including the MyHealth Brigadoon records but not the Campbelltown records.
[30] Document A13 in the claimant’s bundle dated 2 November 2021.
Dr Chow was given a history of bowel problems in 2019 which appears to have led to the claimant’s underperformance and him ceasing work. The claimant said he worked unloading containers but was laid off due to underperformance related to diarrhea.
The claimant said he was now working in hotel checking people using QR codes in shifts of 12 hours per day. He was reported to be taking Panadeine Forte.
The claimant denied ‘having drug and alcohol habits.’
Mr Inthaphala said he was worried about his future and was not sleeping well and was more depressed and anxious and was taking Venlafaxine (Effexor) and had been seeing a psychologist since early 2021.
In terms of his pre-accident history, Mr Inthaphala said he saw a psychiatrist twice when 15 and 16, was prescribed Endep which he took for a few months. Dr Chow says ‘He suffered from ongoing depressed mood in the background in the subsequent years. He is now seeing a psychologist every six weeks.’
Dr Chow diagnosed a Major Depressive disorder which was ongoing and chronic and caused a 5% whole person impairment. He was of the view the claimant needs treatment and has some limited inability to work due to his psychological problems.

Insurer’s medico-legal assessments

Dr Greg McGroder, occupational physician, provided a report dated 8 September 2020[31]. He notes the claimant was in good health before the accident and that ‘his pain fairly much resolved, although he had some low-grade on-going problems’.
[31] R8 of the insurer’s bundle.
Dr McGroder recorded that the claimant was able to work but that some work aggravated his condition for example, when he was unloading containers. Dr McGroder recorded the claimant’s treatment and said with physiotherapy and medication he improved significantly. He had no pain at rest, but a feeling of pressure and bending was his main problem.
Mr Inthaphala reported no radiating pain but ongoing hip pain. Dr McGroder accepted the soft tissue hip injury was related to the accident and accepted the wedge compression fracture at L3. He suggested the claimant needed his own exercise program but thought the claimant would experience intermittent low back pain and that the hip injury should resolve. He also expressed the opinion that the claimant needed to avoid aggravating factors and that his current work (unloading containers) was unsuitable but that he could resume his old job.
Dr Graham Vickery psychiatrist saw the claimant on 8 September 2021 and reported to the insurer[32] on 29 September 2021.
[32] His report dated 29 September 2021 is document R9 in the insurer’s bundle.
The claimant gave a history of seeing a psychiatrist four times in 2014 ‘for personal childhood stressors’ and that he was currently experiencing a recent exacerbation of stress and frustration. He was said to be uncertain about his future (worse during lockdown) and suffered from disturbed sleep due to ceasing smoking but his antidepressant was helping.
The claimant smoked 10 – 15 cigarettes a day and consumed alcohol on the weekends and he denied the use of recreational drugs.
Dr Vickery was unable to make a diagnosis of a psychiatric illness and considered there was no psychiatric impairment. He thought a return to work programme would be beneficial.

Other evidence

Economic loss

The claimant provided taxation documents[33] which revealed earnings as follows:
(a)    2020  $25,962
(b)    2019  $33,844
(c)    2018   $37,130
(d)    2017  $25,524
(e)    2016  $4,658
[33] A14 – 15 of the claimant’s bundle.
The claimant has provided a copy of his resume[34] which outlines his schooling, additional qualifications (e.g. forklift license) and skills (such as an ability to lift more than 20 kg). The resume does not refer to an apprenticeship or cabinet making skills but in relation to Ambry Furniture says ‘responsible for the correct completion of surface spraying of kitchen panels as made to order’. He was also responsible for touch ups, delivering furniture and truck driving.
[34] Undated but with details up to July 2019, document A18 in the claimant’s bundle.
Frank Valher was not required to give evidence before the Commission as the parties were content to rely on his statement dated 17 July 2020[35]. Mr Valher is a director of Ambry Furniture (the claimant’s pre-accident employer), having started at the firm in 1995 and he was still working there undertaking project management and cabinet making duties. There is no mention of the liquidation of this business or the change of name (referred to by the claimant in his evidence).
[35] Document A24 in the claimant’s bundle.
He says the claimant was in his third year of a four-year apprenticeship as a cabinet maker but that after the accident he was made redundant because he could not return to his previous role. Mr Valher says the decision to terminate the claimant was made by the owner of the business and Mr Valher did not have much say in that decision.
Mr Valher says he has seen the claimant every three months and was aware of the claimant’s difficulties in finding and keeping work. He says that but for the accident Mr Inthaphala would have completed his apprenticeship.

Liability evidence

The insurer’s liability notice dated 10 July 2020[36] admits duty of care and breach of duty and injury loss and damage however alleges 50% contributory negligence due to the claimant:
(a)    permitting the driver to drive knowing he was impaired by alcohol;
(b)    being a voluntary passenger;
(c)    failing to direct the driver to stop, and
(d)    failing to take care for his own safety.
[36] Document A1 in the claimant’s bundle.
NRMA obtained a report from Consultant Pharmacologist Dr Judith Perl dated 31 October 2020[37]. Her speciality and area of research since 1979 has been the ‘effects of alcohol and drugs on psychomotor performance skills’ in particular how drugs and alcohol affect a person’s driving ability.
[37] Document R7 in the insurer’s bundle.
She estimates Mr Southall’s blood alcohol limit at between 0.150 and 0.192 at the time of collision. She says that his ability to drive would have been significantly impaired and this would have most likely been the major factor in the collision. She also expresses the view that unless Mr Southall was not an alcohol dependant person, he would have displayed obvious signs of intoxication[38].
[38] Page 2 of her report.
At pages 8 to 9 of her report, Dr Perl indicates that Mr Southall’s functioning would be impaired in the following ways:
(a)    reaction times including the time taken to perceive and then react to something are affected and over-reaction and incorrect decision making can occur;
(b)    perceptions could have been altered so that dangerous situations may not be appreciated;
(c)    judgment of speed, time and distance could be impaired,
(d)    information processing within the brain slows and when coupled with distractions such as passengers and mobile phones can reduce driving performance;
(e)    the ability to maintain vigilance is reduced as alcohol increases sleepiness and reduces alertness. Alcohol is a depressant and has sedative effects;
(f)    motor co-ordination is impaired, lane keeping ability is impaired;
(g)    the number of eye blinks increases, and the duration of those blinks increases which can also lead to slower reactions or the failure to react;
(h)    alcohol produces disinhibition and may result in an increase in self-confidence and a false perception of one’s own abilities, it can also result in inattention and risk-taking behaviours, and
(i)    consuming alcohol can lead to ‘tunnel vision’ and visual scanning can be affected.
Although Dr Perl was not aware of Mr Southall’s alcohol intake, she has assumed he was a ‘social drinker’ consuming alcohol regularly but not daily and not more than 2 – 3 drinks. She says he is likely to have developed some tolerance to alcohol but at 0.0150 – 0.192, he would have been expected to show signs of drunkenness or intoxication including slurring, confused or incoherent speech, unsteadiness, slower actions and impaired co-ordination, in addition to bloodshot and glazed eyes and the smell of alcohol on his breath.
If Mr Southall did not feel drunk and those around him did not perceive him as drunk, then she is of the view he would have had to be a chronic heavy drinker.
Dr Perl considered the descriptions of the restaurant behaviour (being ‘a bit rowdy’) and the comment of there being ‘happiness in the car’. She noted the speed of the driving, the egging on from the passengers and Mr Southall’s alleged report that it was all funny. She expressed the opinion that these are ‘signs commonly associated with alcohol intoxication’.
She considered the claimant who had ‘relatively clear recollections’ of events before and at the time of the collision. Dr Perl suggests he was not so intoxicated as to impair his ability to recognise the gravity of the situation and also he had recognised the change in mood of the occupants (rowdy and happy) which also suggests a level of awareness.

Police report, statements and the police brief

According to the police report the accident occurred on 12 August 2018 at 3.45 pm. The speed of the vehicle was said to be 80 km/h in a 50 km/h zone. The cause of the accident was stated to be that the driver lost control on a bend and collided with power pole (police report R2).
The police report also states that the driver, Ethan Shortall, had a license for six years and returned a blood alcohol breath test of 0.183 and a blood test of 0.169.
The passengers in the vehicle were identified as Imraan Hanslo in the left rear, and Gary Taukatalata behind the driver.
Police officer Vanessa Smith provided a statement to the insurer’s investigator[39]. She did not take a formal statement from any of the passengers in the vehicle on the day of the accident, but she did record:
(a) all admitted consuming alcohol although she did not know how much [23].
(b) The claimant had commenced driving and then Ethan Shortall drove the remaining distance [23].
(c) On 28 September 2018 she interviewed Ethan Shortall who told her he had consumed three beers, one with a shot in it. He said he drove at 60 km/h and that ‘sun and alcohol were a factor’ in the cause of the accident [28].
(d) She interviewed the claimant on 1 November 2018 [29]. He told her Ethan was speeding and that the others were egging him on.
[39] Document R4 and A23.
The police records were produced under the Government Information (Public Access) Act2009 and some personal details of the persons concerned have been redacted. The documents reveal:
(a)    Mr Southall was charged with eight offences including driving with a high range of alcohol in his system.[40]
(b)    The claimant had given Mr Southall permission to drive the vehicle. The accused said he put the sun visor down as was going around a bend, the vehicle veered onto the raised road marking, the accused counter steered, the vehicle slid, he counter steered to the right, lost control and collided with a power pole causing power lines to come down onto the road.[41]
(c)    The statement of the claimant to the police was provided on 1 November 2018[42] and says ‘we were all drinking beer and soju’. He said they left the restaurant at 3.00-3.30pm and that the drivers swapped ‘because Ethan offered to’. As to what they were drinking he is recorded as saying ‘7 bottles of soju and a dozen beers between the four of us.’
(d)    The police statement from Imraan is dated 3 January 2019[43] and suggests the group drank Soju and ‘tried every flavour’ and that they left the restaurant at 1.30 pm. He said that the plan was for Ethan to drive them home. He said that the claimant drove at first but then swapped with Ethan ‘because Ethan wanted to drive’. He used his mobile to video Ethan driving. He admits that he did ‘egg Ethan on a bit’, that Ethan was speeding and swerving and the claimant tried to get Ethan to slow down.
(e)    A statement from a witness at the scene says that two of the passengers including the claimant got out of the vehicle and lay down on the roadway. One passenger remained inside. The driver got out, gave his keys to a resident and attempted to leave the scene. The witness also saw the front seat passenger get out of the car and say, ‘I told you to slow down’.[44]
(f)    Senior Constable Breeze Steinmetz provided a statement dated 22 April 2019. He spoke to Ethan after the accident. He noticed bleeding from his mouth and observed Ethan’s braces. Ethan said the airbag had hit him in the face and he declined to be assessed by an ambulance ‘As the Accused was speaking with me, I could smell intoxicating liquor on his breath’.[45] There is also a reference in this statement that the vehicle had been seen ‘driving erratically a short time before the collision’.
(g)    Vanessa Smith’s statement for the police matter dated 19 April 2019 confirms the speed limit at the crash scene was 50 kmph[46].
[40] Page 44-45 of the insurer’s bundle.
[41] This history comes from the fact sheet put before the court and can be found at 47-49 and appears to be based on the totality of the police statements.
[42] Page 53-54 of the insurer’s bundle.
[43] Page 59-60 of the insurer’s bundle. Although the name and details are blacked out, it is assumed this is Imraan’s statement as it corresponds with the statement given to the claimant’s solicitor.
[44] Page 73-75 of the insurer’s bundle.
[45] Page 93 of the insurer’s bundle.
[46] Page 96 of the insurer’s bundle.

Witness statement Imraan Hanslo

Imraan Hanslo gave a statement to the claimant’s solicitor on 12 August 2018[47]. He was, at that time, 24 years of age and had known the claimant since high school.
[47] Document A26 of the claimant’s bundle.
His statement contains no mention of the fifth person and says at [9] ‘We did not meet or have lunch with any other patrons at the restaurant’.
Mr Hanslo does not mention drinking beer saying they were drinking Soju and that each of them ordered two bottles each and there were eight bottles on the table at the end of the lunch. He said ‘I do not recall any of us being drunk’. He does not recall if Ethan had anything else to drink other than the two bottles of Soju.
He confirmed the plan was that Ethan would drive but that Mr Inthaphala got into the driver’s seat and drove from the restaurant. After they swapped he says Ethan sped down the freeway at up to 180 km/h and that the claimant pulled his shirt and tried to get him to slow down.

The claimant’s statements

The claimant gave an interview to the insurer’s investigators dated 3 December 2018[48] which says:
[48] Document A3 in the insurer’s bundle and A22 in the claimant’s bundle. The numbers in square brackets are references to the paragraph in the statement.
(a)    he had a green P2 license which expired in January 2019. He had been driving for five years, had one previous offence (speeding) and drove about 600 kms per week before the accident [14]-[17].
(b)    He had been drinking on the day of the accident [24] and in fact the four people in the car ‘had all been drinking’ [29].
(c) ‘There was a bit of happiness going on as we had all been drinking alcohol’ [31]. They had been to a restaurant and had a meal and drinks and were driving back to Ethan’s home in Campbelltown [32].
(d)    Before they left for the restaurant, Mr Inthaphala had picked the car up from his mother’s place then driven to Campbelltown to pick up his friends and they drove together to the restaurant arriving at 12.00 pm. A fifth person joined them at the restaurant and he left when they left [33] and they all left the restaurant at 3.00 pm [34].
(e) They were drinking Soju, a Korean drink which he thought was a rice wine. They also drank imported beer and ate food and rice. He thinks they had seven Soju bottles and eight beer bottles between them [35].
(f)    He said Soju was 18% alcohol and in a normal stubbie size 375 ml bottle. They were drinking it out of shot glasses ‘there was a bit of a competition going on’. They were sculling the drinks [36]-[37].
(g) All four had more or less an equal share of alcohol except the fifth person who did not drink as much [38].
(h)    The first shot affected him. They were having a good time but not stumbling and were a bit rowdy – ‘I felt that I had been drinking but I would not say I was paraletic [sic] or anything like that’ [40]-[41].
(i) They left the restaurant with the claimant driving then they got to a service station at Casula and Ethan said he wanted to drive and so they swapped drivers [44].
(j) Mr Inthaphala said he felt fine and was driving fine [45].
(k)    When Ethan took over, he drove at 180 km/h on the freeway. The claimant asked him to slow down and squeezed his neck to get his attention. He said those in the back were ‘egging him on’ [45]-[46].
(l) Ethan slowed down as they left the freeway, but he sped up again near Waminda Oval and as they came around a left-hand bend, he lost control and crossed onto the wrong side of the road hitting the gutter then snapping the power pole [48].

The claimant gave another statement dated 3 August 2020 and appears to have been given to his solicitor[49]. He says:
(a)    he arrived at the restaurant at 12.00 pm with three friends. He said that they had decided to car-pool while at his house;
(b)    they drank two bottles of Soju each which is a ‘low alcohol’ spirit. He says he was not aware of whether his friends had any additional drinks and as far as he knows they only drank two bottles of Soju each;
(c)    he was not drunk and neither of his friends appeared drunk;
(d)    he started driving but then ‘Ethan volunteered to drive’, and
(e)    at no point was he under the impression that Ethan may have been over the limit.
[49] Document A25 in the claimant’s bundle.
He documents the speeding, his attempts to stop it and the loss of control of the vehicle.
There is a fourth statement dated 16 June 2021[50] the purpose of which was to ‘clarify a few more facts which I had forgotten to make’ in his previous statement. He says:
[50] Document A28 in the claimant’s bundle.
(a)    there was a fifth person, a friend of Gary’s who joined them ‘for lunch and drinks’ [4];
(b)    apart from seven to eight bottles of Soju, they drank beer, about eight bottles between the five of them [5];
(c)    the first person had the least alcohol, and the claimant was unsure of the alcohol content of the beer and how many everyone was drinking [6]-[7];
(d)    when we stopped at Casula, Ethan asked if he could drive, he was not slurring and ‘did not show signs of impaired coordination or motor skills, so I let him drive’ [9];
(e)    Ethan was speeding and tried to get him to slow down [10];
(f)    his brother-in-law helped him get the Hotel Quarantine jobs and while it is easier on his back he still has problems towards the end of his shift and as he returns home by car or public transport;
(g)    he has had 45 sessions of physiotherapy but as the insurer has ceased paying for it he does home exercises and goes to the gym [21];
(h)    he has had treatment for hip pain which helped for a few months [22] and he has had a major flare up of his back pain [23] and he continues to take Panadeine Forte [24], and
(i) he has continued to see a psychologist and has been prescribed Efexor (an antidepressant) which assists ‘with my sleeping, feeling demotivated with low mood as well as dealing with anxiety and depression [26]. He continues to have flash backs and anxiety [27] and suffered from Social Anxiety and withdrawal [28].

The claimant’s oral evidence

The claimant gave evidence about his injuries and indicated that the only problem was his lower back. He said he feels stiffness in his back and that it locks up. He says he tries to protect it. He said getting up is difficult and he has problems sitting on train seats, putting on his underpants, shoes, socks and tying up his laces. He said when his back locks up he feels a stabbing pain in his lower back on the left side. He said he has been doing exercises to improve his ‘core, glutes and quads’.
The claimant said before the accident he was heavily involved in sport and participated in Muay Thai (a form of martial arts) training four to five times and week. He was quite competitive. He said after the accident he has not done any form of combat sports and that the Muay Thai involves a lot of kicking and twisting.
Before the accident he said he was working at Ambry Furniture. He talked about helping the cabinet makers lift the finished cabinets and that he would lift parts of the cabinets on to racks for spray painting. He said he was involved in sanding the cabinets before they were painted. He said there was a lot of lifting. He also performed general warehouse duties and drove a truck. He said the cabinets were for kitchens and bathrooms and most of the lifting involved 20 kg pieces but there were some cabinets that weighed more than 50 kg. He gave no evidence of measuring kitchens or bathrooms for cabinets, cutting timber, assembling or building cabinets.
After the accident he said that he did not want to be at the factory. His bosses were worried about a workers compensation claim and he felt uncomfortable going back because he knew he would be under observation. He also said he could not go back because of the heavy lifting and the uncomfortable positions he would have to work in drilling and installing cabinets. He said there was a lot of back movement required.
The claimant said he worked with Priority Fuel Management. He said he was managing well at the start but there was heavy work when he moved to Dubbo to assist with the installation of a new service station there. He said he did not remember much of his time there. He said he was let go because he thinks he was under performing due to frequent visits to the toilet which he said was because of an upset stomach due to medication he was taking for his accident related injuries.
He described his work at Young Guns, unloading containers. He said he was moving Unilever products such as shampoo and soaps. He said he took the job because he was going crazy sitting at home. He said the job involved lifting boxes which weighed up to 38 kg and he developed an ache in his lower back.
The next job he took on, was line marking and he thought that would be better because it involved sitting down and driving a vehicle however part of the job required him to load hot melted plastic into a tube and this all weighed about 20 to 25 kg. He said he was let go from that job because he was going to the toilet frequently because of the anti-inflammatories he was taking which he said ‘messed up my bowels’. He said he was taking Meloxicam (Mobic) a couple of times a week.
The claimant then spoke of his work at I-Sec from December 2020. He said this was good because while he was sitting in a chair for 12 hours at a Quarantine Hotel, he was given six breaks during his 12-hour shift. He said he finished that job three to four weeks ago.
He said out of desperation he obtained work recently at a furniture shop, spray painting. He said this was an unpaid job trial which he started two weeks ago. He said he was not coping at all but he needed the money to buy his sister a birthday present and with Christmas coming up.
Mr Inthaphala said that, but for the accident, he would have got his apprenticeship, worked for five years and run his own business.
I asked Mr Inthaphala about his apprenticeship and whether he was required to go to TAFE as a part of this and study and sit exams. He said that he did not go to TAFE and was not required to have any formal training but that someone came to the factory every week or every month to talk to him. He said he had to ‘build stuff’ and that he was given projects to do.
Ms Allen asked the claimant about his pre-accident psychological condition. She asked him whether he had suffered from anxiety and depression at the time of the accident and he said he did not remember. He agreed he had been diagnosed with it when he was 17 but did not remember if he was still experiencing symptoms and anxiety and depression at the time of the accident saying it was ‘too long ago’.
He was asked about his drug and alcohol consumption and admitted he ‘used weed’ when he was 15 to 17 and that after then when he went out drinking he used cocaine. He was asked whether he was a regular user of cocaine and he said not regularly but sometimes. He was asked whether he was addicted and he said, ‘maybe when 19 or 20’ but ‘how could someone [like me] have enough money to have an addiction’.
He was asked whether he recalled seeing a doctor at CMC in June 2017 (when he was 20) seeking a script for Endep and he did not remember that. He did not remember saying that he had been ‘on it’ for two years although he said he was on medication for one or two years at the age of 16. He was asked whether he was on medication in 2017 and he did not remember saying he ‘took it for a month or two’.
He did not remember obtaining a referral to a psychiatrist in June 2017 from a doctor at CMC. He did not remember seeing Dr Mona Idris, psychiatrist. He did not remember any of the history that was read out to him from her report. He remembered having difficulty holding conversations with people. He did not remember having panic attacks. He did not remember telling Dr Idris he had been abusing alcohol and cocaine but agreed that was true ‘like all young people I go drinking and take stuff’.
He did not remember seeing Dr Fatima at CMC in November 2017 and being referred to Dr Mark Cross. He does not remember whether he saw Dr Cross or not and did not remember reporting visual hallucinations and did not remember having visual hallucinations. He did not remember being prescribed Lovan.
Mr Inthaphala did not recall seeing Dr Ndhlovu on 3 January 2018 and did not recall telling him he had been using cocaine weekly for 12 months. He said this was not true.
The claimant said that the time of the accident he had not taken cocaine. ‘You can’t eat and use cocaine’ He could not remember when he had last taken cocaine and said it ‘takes such a toll on my bank account’ and that he stopped using cocaine before the accident. He then said he might have used cocaine during New Year and at some parties after the accident.
Mr Inthaphala was taken to the history he gave Dr Chow in 2021 regarding his psychiatric treatment (two consultations when 15-16 and Endep for a couple of months). The claimant said he did not remember what he said. It was put to him he had underestimated his pre-accident psychiatric history and he was not sure.
He was taken to the appointment with Dr Vickery in September 2021 and the history he had given of four attendances on psychologists in 2014. He did not remember that. After being asked if he had underestimated his mental health issues, he said he remembered having two sessions with a psychiatrist when he was young, but he did not remember seeing a psychiatrist a year before the accident.
He did not remember telling Dr Vickery that he did not use recreational drugs.
The claimant said he did not remember going to see Dr Ting and did not remember what history he may have given him about his pre-accident condition. He was again asked whether this was an underestimate of the truth and the claimant said, ‘what does underestimate mean?’. When I explained the term, he then went on to say that it was not easy for a man to open up and that 90% of men would not do it ‘to some random’. When Ms Allen challenged him saying that Dr Ting was a medico-legal doctor being asked to give an opinion in his case and he was not ‘some random’ he said it was still hard to talk and he felt ‘less of a man’ to open up.
He did not remember whether he was asked by Dr Ting about binge drinking but when asked why there was no history of cocaine use, he said ‘it did not cross my mind’.
Ms Allen then asked the claimant about what he was earning noting that in his claim form he had said he was earning $1,200 a week after tax and that in the first five or six weeks of the 2018/19 financial year the average weekly earnings was $707. The claimant explained that when he was working at Ambry he was being paid late and to get back at his boss he took days off and he did not go to the doctor and get medical certificates. As he was only paid for the days he was there he earned less than he was supposed to.
He was asked whether he was exaggerating his pre-injury income and he referred Ms Allen to the averages she had calculated.
It was put to him that the reason he did not return to work at Ambry was because the company was liquidated. He said he did not know what had gone on, but the company is still operating under a different name. He said Barry Brislane owns the business and Frank works under him.
The claimant accepted he had been wrong in his resume about when he finished at Priority Fuel and agreed his 2020 taxation return suggest he left there in mid-September 2019. He said that he did not remember precisely when he left that work.
He did not recall seeing Dr McGroder and giving him a history that he stopped work at Priority Fuel when the work ran out. He said ‘no’ that he was let go because of his bowel problems and he was told ‘this job’s not for you’. I note his resume includes a person from Priority Fuel as a referee.
The claimant did not recall seeing Dr Raji on 26 September 2019 at CMC and telling him he was addicted to drugs and alcohol. He did not recall going to Dr Wendy Wickes at Cooper’s Cottage (a drug and alcohol centre) or seeing Dr Tom Bedford about his addiction.
It was put to him that the reason for his under-performance at work was a cocaine addiction and he denied this saying he was let go from Priority Fuel because of under-performance and this was because he was going to the toilet all the time because of his consumption of anti-inflammatories namely Meloxicam (Mobic). He could not explain why he had only filled one prescription for 30 tablets of that medication on 26 July 2019 and questioned about how 30 tablets would have lasted him until September 2019. He then said he did not just take Meloxicam but he took other medication but he cannot remember what they were.
He did not remember seeing Dr Haque at Leumeah on 30 September 2019 and did not remember the history he has recounted there of drug and alcohol abuse.
He remembered going to Thailand in October 2019 but did not remember the development of hip pain after that. He remembered having the ultrasound on 21 January 2020 but did not remember the history given to his doctor on 25 May 2020 of still sniffing cocaine and drinking.
It was put to him that the reason he was off work was because of his cocaine use and he said that was wrong and that he had applied for 200 jobs and wanted to work and earn money.
While he did not remember saying to Dr McGroder in September 2020 that he was fairly much pain free he said this was not true.
The claimant was taken to the PBS records which show two Meloxicam scripts only had been filled and he said that he only used those as a ‘last resort’ and would take them ‘at the last minute’ and has in fact still got some of them at home
He was taken to 22 September 2020 when he saw his general practitioner at My Health Brigadoon with worsening low back pain and was told to see a physiotherapist. It was put to him that he took six weeks to see a physio because his back pain was not really that bad. Mr Inthaphala said he had seen a physio 40, 45 or 50 times.
Ms Allen asked Mr Inthaphala about his current job of spray-painting furniture. The claimant said he did not know the name of his employer and it was a small company. He was unsure of when he was going to get paid. He got the job through a friend and has not discussed with his boss how much he will get paid or when. He said he is working eight hours a day and takes Wednesdays off to give his back a rest.
The claimant said he was interested in studying and had thought of becoming a nurse as he liked helping people but he thought psychology was too hard and he was not really interested in social work.
In terms of liability the claimant accepted he had P plates at the time of the accident and he was not allowed to drive with any alcohol in his system at all.
He was taken to his statement to the investigator where at [5] and [7] he had said he had two bottles of Soju. He was asked whether this was accurate. He did not recall. He said he had some beer and was pretty sure he had two bottles of soju but right now he did not remember everything. He was taken to his police statement where he had said the group had consumed a dozen bottles of beer. He did not remember whether he had two bottles of beer and Soju. He said when he gave his first statement he was ‘foggy’ due to drugs and his latest statements were affected by his memory.
He said that Soju was a low alcoholic drink served in small bottles like beer. He thought it had 10-15% alcohol and that it was a really sweet drink. He agreed it had more alcohol than beer but was not sure whether it had more or less alcohol than wine because he does not drink wine. When taken to [36] of his statement, he agreed the alcohol content of Soju was 18% and he agreed that two 375 ml bottles would equal 750 ml which is the equivalent volume as a bottle of wine.
The claimant did not think he was over 0.05 saying he had been at the restaurant for

3-3.5 hours and had a lot to eat. He said he was not keeping count of what he was drinking and he was not keeping tabs on his friends and what they were drinking.
He said that Ethan was meant to be the designated driver but that he had driven and then they swapped because he was frightened of losing his license. Mr Inthaphala agreed that Ethan had an unrestricted license and could therefore drive with some alcohol in his system.
It was put to him that with a blood alcohol content (BAC) of 0.168 Ethan would have been very intoxicated but Mr Inthaphala said ‘he seemed fine to me’. He agreed that 0.168 was ‘high range’ and said that he though Ethan may have been a little over not a lot.
Mr Inthaphala talked about Ethan driving at 180 km per hour and said he had the sort of personality who would do things to look cool. He said he had told him to slow down but it did not cross his mind to tell him to stop. He said Ethan was not listening to him.
I asked when it was decided that Ethan would be the designated driver and the claimant said maybe the day or the day before. He did not remember why he decided to drive his car after leaving the restaurant. He said he got scared he was going to get caught and he thought Ethan may have asked ‘do you want me to drive from here’ but he could not really remember.
He said Ethan went to a different school but he had seen him around but Ethan was mainly Gary’s friend. He did not know how long he had known Ethan for. He said the fifth person at the restaurant was Ethan’s cousin but he only just met him on the day and he came and left. He did not remember telling the police about the fifth person. The claimant said that Ethan lived 30 seconds away from where the crash happened and said that Gary did not have a license and there was no suggestion that Imraan would drive. He thought Imraan might have had red Ps but he was not sure.

MY CONSIDERATION OF THE ISSUES RELEVANT TO CONTRIBUTORY NEGLIGENCE

Is the claimant a reliable witness?

Ms Allen said the claimant’s evidence was unreliable noting his poor memory of matters in the clinical notes before and after the accident and inconsistencies which he was unable to explain.
Mr Nesbeth conceded that the claimant was a poor historian and could not remember a lot but that he was trying his best. Mr Nesbeth submitted that the claimant made a number of concessions to his detriment. For example, he admitted his drug and alcohol use. Mr Nesbeth also submitted that the absence of disclosure about the full extent of his depression was plausible in that the claimant did not like talking about his mental health but that in any event it had never affected his ability to work.
Mr Inthaphala’s recollection of events before and after the accident was poor. There were many instances when he answered questions saying that he did not recall or could not remember or was unsure of things.
His evidence about the events before the trip to the restaurant was inconsistent. In his statement to his solicitor, Mr Inthaphala says they were all at his house when they decided to carpool and head to the restaurant. In his statement to the insurer’s investigator, he said he was at his parent’s home then drove to Campbelltown to pick up his friends before heading off to the restaurant. His evidence about how much alcohol had been consumed was inconsistent in his three statements and inconsistent with the other participants. His evidence about his IBS and medication is inconsistent with the pharmaceutical records.
I do not accept that he was reluctant to talk about his mental health because it was hard for him to ‘open up’ to someone he did not know. The records suggest that the claimant has ‘opened up’ to a number of doctors before the accident about his mental health issues and had revealed some details to the medico-legal experts who examined him for his accident but not all. I gained the impression from the claimant’s evidence he was attempting to minimize his previous problems and withhold details.

The claimant denied to Dr Chow any drug or alcohol habits and was asked by Dr Vickery about illicit drug taking and denied it. The records from various medical practices suggest that the claimant recognised before the accident and afterwards that he was addicted to cocaine and had problems with alcohol.
For all of the above reasons, I am not satisfied that the claimant’s evidence can be relied upon and that I should therefore only consider his evidence if it is supported and corroborated by the documentary evidence.

Whose evidence do I accept about the accident?

I do not accept Mr Southall’s version of events contained in his statement to the police. His estimate of his speed is inconsistent with the other reports of the accident and his level of alcohol consumption appears as a clear attempt to minimise his culpability.
Imraan Hanslo was a school friend of Mr Inthaphala and gave a statement to the claimant’s solicitor and the police. The reliability of his evidence was not challenged. His statement to the investigator is consistent with his evidence to the police apart from the time of the conclusion of the meal but inconsistent with the evidence from the claimant on a number of important matters. His statement to the police was given much later than the claimant’s and over four months after the accident. His statement to the claimant’s solicitors was even later. I will accept his evidence but with caution due to their differences from the police material and the claimant’s earlier statement.
The claimant accepted that the statement he gave to the police is more likely to be correct as it was more recent than the later versions given to the insurer’s investigator (3 December 2018) or his solicitor (3 August 2020 and 16 June 2021).

What are my findings relevant to contributory negligence?

On the basis of the police evidence, I accept that the speed limit in the area was 50 km/h and that Mr Southall was driving at a speed of at least 80 km/h (and possibly more noting the evidence from Mr Hanslo and Mr Inthaphala).
There is no evidence to counter that provided by Dr Perl and I accept that Ethan had a blood alcohol level in his system at the time of the accident of between 0.150 and 0.192 and that his ability to drive was impaired by the alcohol he had consumed.
I do not think it necessary to make any finding as to whether Mr Southall was adjusting the sun-visor at or shortly before he lost control of the car.
In my view, the accident was caused by Mr Southall when he lost control of the vehicle due to the combination of speed and alcohol.
I do not accept there was a fifth person at the restaurant. While Mr Inthaphala says there was a person present who was a friend or cousin of Gary’s, Mr Hanslo is adamant no one joined them and the claimant’s first statement to police refers to only four people. In my view, the fifth person is a recent invention designed to maximise the number of persons drinking the admitted amounts of alcohol at the table and therefore to minimise the amount of alcohol consumed by Mr Southall and the claimant.
I am satisfied that all of the occupants of the vehicle were likely to have been affected by alcohol as the evidence is that they were rowdy at the restaurant and happy in the car. All of them had been drinking and the evidence satisfied me they were drinking more or less equally, at least eight bottles of Soju and at least 12 beers.
I am not satisfied that there was any agreement for Ethan to be the designated driver. If there had been such an agreement there is no plausible explanation offered for why the claimant started driving when they left the restaurant. If Ethan was the designated driver, why did he not drive from the outset? The evidence given by the claimant in his statement was that he ‘felt fine and was driving fine’. If that was true, then why did Ethan need to take over the driving at any stage? The evidence given by the claimant at the assessment conference that he was concerned for his own license. This, coupled with the amount of alcohol consumed and the level of intoxication of Ethan suggests to me that there was no such agreement, that Mr Inthaphala felt that he was ‘fine’ to drive but then realised at some point while driving that he was not, and the decision was then made to allow Mr Southall to drive.
I am also satisfied, on the basis of the contemporaneous evidence to the police that the passengers in the back of the car were both ‘egging on’ Mr Southall and encouraging him and the manner in which he was driving.
I am also satisfied on the evidence of Mr Inthaphala, the independent (unknown) witness and Mr Hanslo that Mr Inthaphala did attempt to rein in Mr Southall’s driving.

What is the degree of the claimant’s contributory negligence?

Section 4.17(1) of the MAI Act provides that I must apply the ‘common law and enacted law’ about contributory negligence when assessing Mr Inthaphala’s damages. There are certain circumstances where a finding of contributory negligence must be made.[51] Once a finding is made, the claimant’s damages are to be reduced ‘by such percentage as the …Commission thinks just and equitable in the circumstances of the case …’
[51] Set out in section 4.17(2).
As the claimant has conceded there must be a finding of contributory negligence made against him, I need only decide the degree of his contributory negligence.
The leading authorities on that point are Pennington v Norris[52] and Podrebersek v Australian Iron & Steel Pty Ltd[53]. In Podrebersek, above, at [10] it was said:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris, above, at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd (1953) AC 663, at p 682; Smith v McIntyre (1958) Tas SR 36, at pp 42–49 and Broadhurst v Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
[52] (1956) 96 CLR 10.
[53] (1985) 59 ALR 529 (Podrebersek).
Ms Allen submitted on behalf of the insurer that:
(a)    the claimant ‘set this up’ in that he knew he was going to lunch, he borrowed his stepfather’s car and then drove to the restaurant. He knew he was going to have to get home, he had his car at the restaurant and that his license did not enable him to drive with any alcohol in his system at all;
(b)    he drank Soju and beers with his friends and was aware of what his fellow diners were drinking but was not keeping count or keeping tabs on them;
(c)    if Ethan was the designated driver then why was Mr Inthaphala not keeping tabs on what he was drinking;
(d)    while the claimant asked Ethan to slow down, he never asked him to pull over and stop driving;
(e)    Ethan had a high range blood alcohol level, three times the legal limit;
(f)    the Police noted alcohol on Mr Southall’s breath and the report of Dr Perl suggests Mr Inthaphala should have been aware that Ethan’s ability to drive was affected, and
(g)    Mr Inthaphala demonstrated reckless indifference to whether Ethan could drive safely and took no care for his own safety as a result.
Ms Allen said that the claimant’s contributory negligence should be at least 50% and said this case was on all fours with Joslyn v Berryman[54] which resulted in a finding of 60% contributory negligence.
[54] (2013) 214 CLR 552 (Joslyn v Berryman).
The claimant submits a reduction of damages by 15% would be just and equitable in the circumstances noting that:
(a)    Ethan took over the wheel;
(b)    Ethan was speeding and did not slow down when requested to do so;
(c)    he was driving erratically on the freeway and after leaving the freeway, and
(d)    while Mr Inthaphala showed poor judgment handing over keys by doing so he had lost control of the situation.
The case of Joslyn v Berryman is not, in my view, ‘on all fours’ with this case. While both driver and passenger in that case were affected by alcohol, the vehicle was defective and the plaintiff had taken over the driving and was a less experienced driver than her passenger.
I also do not accept the insurer’s submission that Mr Inthaphala saying ‘stop’ as opposed to just ‘slow down’ would have made a difference or should affect the relative culpability of driver and claimant.
The claimant’s culpability, his departure from the standard of care of a reasonable person, involves him handing over the keys to Mr Southall after he had been driving after having lunch in the restaurant. The dangers of drinking and driving are well known and the need to have a ‘plan B’ if drinking is, in my view, obvious. There is no suggestion that the group were prevented from leaving the car outside the restaurant (or where they pulled up) and no evidence that they could not have taken some other form of transport home. Mr Inthaphala had consumed alcohol and his judgment was, on the evidence of Dr Perl, likely to have been affected by it. The car involved was essentially his and the keys were handed over voluntarily to Mr Southall at a point in time when Mr Inthaphala knew, or ought to have known that Mr Southall’s ability to drive the car was affected by the amount of alcohol he had consumed. Mr Inthaphala knew that his own ability to drive was affected (otherwise he would have no need to hand over the keys) and he had been lunching and drinking with Mr Southall in a competition, consuming shots whilst at the restaurant and so on. In my view, 15% contributory negligence is insufficient to reflect his culpability as the person with control of the car and its keys.
What is significant to the assessment of Mr Southall’s departure from the standard of care of a reasonable person is the speed and manner of his driving and the level of his intoxication. He was speeding in excess of the speed limit on the freeway and 30 km or more per hour over the speed limit once he left the freeway. He had a high range of alcohol in his system. While Mr Inthaphala handed him the keys, he was not being forced to drive or forced to drive the way that he did. He could have refused to drive and could have suggested they leave the car and return to collect it later. In my view his culpability is the greater of the two.
While the parties have focused on what Mr Inthaphala and Mr Southall did or did not do, the circumstances of this case involve two other persons in the car. In my view, it is a relevant consideration to the assessment of what is a just and equitable reduction of damages in this matter is that Mr Southall was being encouraged to speed and drive erratically by the two other passengers in the car, one of whom was filming it. Mr Southall should of course have resisted that encouragement but his ability to do so, and to ignore the pleas of Mr Inthaphala was, on the basis of Dr Perl’s findings, likely to have been affected by his significant intoxication.
I am of the view that in considering all the circumstances of the case that Mr Inthaphala’s damages should be reduced on account of his contributory negligence by one third that is 33%.

MY CONSIDERATION OF THE ISSUES RELEVANT TO DAMAGES

Findings as to injury

Did the claimant injure his left hip in the accident?

The insurer disputes any left hip injury was related to the accident. Both Dr McGroder (for the insurer) and Dr Mendelsohn (for the claimant) accept the left hip injury as soft tissue in nature and resulting from the accident although neither of them engage with the issue or explain the reason for their opinion.
The general practitioner records do not note any complaints of hip pain until January 2020, which is of course is almost a year and a half after the accident.[55]
[55] CMC records R16 in the insurer’s bundle.
There have been many instances of the Court identifying error on the part of medical assessors (within this and the previous scheme) in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation[56]. While their path of reasoning may not have been disclosed, two doctors have formed the view the claimant’s hip injury was caused by the accident having been provided with the hospital notes and a history from the claimant of delayed onset of left hip symptoms. In the absence of any medical evidence to the contrary and based on the opinions of Dr Mendelsohn and Mr McGroder I am satisfied the claimant’s left hip injury was caused in the accident.
[56] For example Owen v Motor Accidents Authority of NSW[2012] NSWSC 650 at [51]-[52]; Bugat v Fox[2014] NSWSC 888; AAI Ltd t/as GIO v McGiffen[2016] NSWCA 229.

Are the claimant’s bowel symptoms caused by the accident?

The claimant gave evidence that he left two jobs (Priority Fuel Management and the line marking job) because he was making frequent visits to the toilet which he said was a result of consuming anti-inflammatory medication due to his injuries. There is no documentary evidence from either of those two organisations (or anyone employed in them) to confirm this.
The claimant’s Commonwealth Government prescription records indicated that one prescription for 30 tables of Mobic was filled in July 2019 and the second prescription was filled in December 2020 for another 30 tablets. He was reported by Dr Mendelsohn to be taking this medication ‘regularly’ and in his oral evidence he said he was taking it a couple of times a week.
There is no medical evidence from any of the claimant’s general practitioners to support any link between the medication the claimant was consuming as a result of the accident and the development of bowel symptoms. For example, the CMC entry on 13 December 2019 refers to ‘runny stools’ for a month but no reference to the cause other than the consumption of fast foods. Dr Mendelsohn’s first report from March 2020 documents the prescription of Mobic which he took regularly but there is no mention in that report of any bowel problems as a result. Mr McGroder also has a history of the consumption of anti-inflammatories but no history of bowel issues.
If the claimant was taking over the counter anti-inflammatories there is no medical evidence to suggest that this could or did cause bowel problems.
I do however note the claimant was diagnosed with irritable bowel syndrome in September 2020 by his doctors at MyHealth at Brigadoon and in November 2020 by Dr Henin at Panania Family Doctors. There is no evidence to suggest the claimant’s IBS was caused by the accident. I am therefore not satisfied that any bowel complaints complained of by the claimant were caused by the accident.

Did the claimant sustain a psychological or psychiatric injury in the accident?

It is apparent that both psychiatrists providing medico-legal reports did not have all of the bundles of medical records that are now before me.
I note Dr Vickery was not given a fulsome pre-accident psychiatric history. Whilst it appears Dr Vickery accepts that the claimant sustained some reaction to the accident, he was of the view the claimant had no diagnosable DSM IV or V psychological or psychiatric injury as a result of the accident.
Dr Chow was not given a full and correct history of the claimant’s pre-accident anxiety and depression or his drug use which is, in my view, likely to be relevant to his mental state.
While the claimant may have had some psychological sequelae from the accident and has had some recent treatment, I do not accept the claimant has a major depressive disorder which is ongoing and chronic as a result of the motor accident.

What was the effect of any pre-accident conditions?

There is no suggestion in any of the medical records that the claimant had any previous back or hip injuries. There are the occasional references to martial arts injuries in early 2017 and some post-accident injuries including a hand injury in February 2019 and a rib injury in January 2021.
There are certainly many entries relating to mental health issues, drug and alcohol consumption and issues of dependency between 2014 and January 2018. There are also a number of attendances for drug and alcohol issues in September and October 2019, and early to mid-2020.
I accept the claimant’s submissions that these issues do not appear to impede the claimant’s ability to work although there are some, but not many ‘off-work’ certificates related to pre-accident anxiety, depression, alcohol and drug-taking. There is no evidence before me from any of the claimant’s pre or post-accident employers to suggest that the claimant’s drug and alcohol consumption was the reason he was let go from any of his jobs.
Dr Ting did express the view that the claimant was depressed and that this was limiting his ability to find work and pursue his chosen career (in addition to the claimant’s back injury). Dr Ting did not have the full pre-accident picture and could not express an opinion on whether the claimant’s long standing pre-accident anxiety and depression contributed to the claimant’s difficulties in finding a job and pursuing a career.

What injuries did the claimant sustain in the accident and how do they affect him?

There is little difference between the medical experts in respect of the claimant’s physical injuries. The insurer concedes the claimant’s L3 compression fracture was caused by the accident and I have found that the claimant’s left hip injury was caused by the accident.
The claimant reports difficulties with bending and lifting and twisting. He says he has difficulties bending over to put on shoes or socks and tie his shoelaces. He has been unable to return to sports. The claimant’s oral evidence was that his only real problem is his lower back which is stiff and tends to lock up. He protects it but can feel a stabbing pain if he aggravates it.
Dr Mendelsohn suggested the claimant will have continued problems with heavy lifting and straining and that it will be harder for the claimant to find work. This opinion is also expressed by Dr Ting. Dr McGroder recommended avoiding activities that aggravate his pain and was of the view he would continue to experience back pain but that the hip injury should resolve.
I am satisfied that the claimant has ongoing issues with his lower back as a result of the fracture he sustained in the car accident. I accept that he is going to have to be careful in the future in terms of what he does including what work he performs.

HOW MUCH SHOULD BE AWARDED FOR DAMAGES?

Past loss of earnings

The claimant says he was, at the time of the accident, a third-year apprentice cabinet maker. This is not the history his own expert, Mr Mendelsohn[57] had and the claimant’s own CV refers to his achievements as a spray painter and not any cabinet making duties. There is no evidence of his enrolment at TAFE or progress through the apprenticeship other than the untested evidence of Frank Valher. The claimant’s oral evidence about his apprenticeship (someone coming to his workplace) lacked clarity in my view. However, I will accept that he was working at Ambry Furniture and had been working there for 2.5 years.
[57] See [25] of these reasons and the history that the claimant gave up cabinet making and took up spray painting.
The insurer says the claimant left Ambry because it went into liquidation. There is evidence that a business by that name did go into liquidation in May 2019 and the claimant’s evidence was that he was slow to get paid which suggests the business may have been in financial trouble at the time of the claimant’s accident. However, the evidence falls short of satisfying me that this was the reason the claimant left. While it may have gone out of business with the name Ambry, it appears, from the evidence of the claimant that the name was changed, and its owners continued trading.

I note the claimant commenced work at Priority Fuel management soon after leaving Ambry.
I do not accept that all of the claimant’s periods of unemployment in the last three years are due to accident-related issues. He may have left Priority Fuel because the new service station was built and the work ran out (as Dr McGroder records) but there is no contemporaneous medical record of him having bowel troubles at that time or documentary evidence from the company that he was let go due to accident related poor performance. While I accept his evidence that he is likely to have left Complete Line Marking due to his IBS there is no medical evidence to link that condition to the accident.
After the evidence given at the assessment conference the insurer alleged drug and alcohol issues played a part during the 2019/2020 period of unemployment. The claimant said he had applied for 200 jobs during this time. There is evidence of increased reports of drug addiction and alcohol use in the records of CMC, the Old Leumeah Medical Centre and Panania Family Doctors’ notes between September 2019 and November 2020 but during some of this period the claimant worked in his mother’s restaurant and with I-Sec in the hotel quarantine job. I do not accept that the claimant’s drug use and alcohol habits were the sole cause of him not working during this period.
The parties have both provided submissions about the claimant’s engagement with rehabilitation and / or a failure to mitigate his loss. It appears that the claimant did not accept the insurer’s offer of rehabilitation because he obtained work himself (at Priority Fuel) and that he has not actively sought out the services of the insurer thereafter or been offered it by the insurer. I am not of the view the claimant has failed to mitigate his losses. At the time he was offered help, he was employed and a young man with no previous experience of the motor accident scheme is unlikely to be aware of the definition of ‘treatment’ in the MAI Act and his entitlement to seek rehabilitation and vocational assistance as part of his statutory benefits claim.
There is agreement that the claimant was totally incapacitated for three months (13 weeks) to 12 December 2018. The claimant seeks $15,215 plus super at 11%. This is based on the claimant’s average weekly income in the eight weeks before the accident which produces the sum of $895.
The insurer submits the sum of $8,070.23 plus superannuation ought be allowed for the three months after the accident. This is based on an average weekly wage rate of $672.51 before the accident.
I note the insurer’s counsel cross-examined the claimant on the amount of his earnings recorded in the claim form. I do not have a copy of the claim form, but the sum stated was reported to be $1,200. The Insurer provided a page of pay records from Ambry[58] which show seven weeks over the course of a year where the claimant earned more than $1,200 and the amount he earned varied greatly from week to week. Therefore, the averaging methodology is appropriate. In the financial year ending 30 June 2018 the claimant’s net earnings were about $640 per week[59]. The average of the six weeks of the 2019 financial year (the weeks before the accident) suggests a figure of $600 net. I do not think the averaging of the last six weeks before the accident is fair to the claimant as it avoids the last two weeks of the financial year and the weeks leading up to Christmas which appear to be high earning periods.
[58] R27 in the insurer’s bundle from 3 October 2017 until 3 October 2018.
[59] From his 2018 taxation return – income of $37,130 less $3,614.25 in tax less $42.60 Medicare plus low income offset of $443.05 divided by 52.
The insurer’s figure appears to be based on the gross average ($895) and not the net which is about $850. I will allow that amount for a period of 13 weeks or $11,050 to which I will add the usual 11% for lost superannuation contributions ($1,215.50).
The claimant also seeks damages by way of a buffer in the sum of $30,000 on account of the interruption to the claimant’s stable employment with Ambry due to the accident. The insurer opposes any further amount.
I consider a buffer of $10,000 should also be added to the claimant’s damages. He was working for Ambry for two and a half years before the accident and he has had a variety of roles since with time off between some jobs including eight to ten months between September 2019 and July 2020 (and not including the period working in his mother’s restaurant). Superannuation is not claimed on the buffer.
In summary the claimant’s past economic loss is awarded as follows:
(a)    First 13 weeks                   $11,050.00
(b)    Superannuation                 $1,215.00
(c)    Buffer  $10,000.00
Total  $22,265.00
The parties agree[60] that statutory benefits were paid by the insurer in the sum of $9,242.39 of which $1,770 was paid by NRMA in income tax. The sum of $1,770 should also be allowed pursuant to section 4.5(1)(d).
[60] See AD19 and AD20.

Future loss of earning capacity

Section 4.7(1) of the MAI Act provides that damages for future loss of earning capacity cannot be awarded unless ‘the claimant first satisfies the …Commission that the assumption about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury’.
The claimant says that but for the accident he would have continued his cabinet making apprenticeship, kept working and then opened his own business. The submissions also suggest he may have had a career in professional fighting (although the speculative nature of this is conceded). Mr Inthaphala seeks a buffer in the sum of $300,000 because his lumbar spine injury will result in him having time away from the workforce or difficulty finding work.
The insurer agrees that awarding damages for this head by way of a buffer is appropriate however the insurer says the claimant’s ‘minor restrictions’ will not have significant impact on future earning capacity and suggests a buffer of $20,000.
I have accepted that the claimant has problems and difficulties and there are jobs he cannot do. It appears agreed by the experts that he cannot continue undertaking heavy or regular lifting roles. I am satisfied that it is appropriate to award a sum of damages for this head and that an amount by way of a buffer for future events is also appropriate. There are too many imponderables to award a calculated sum.
The claimant has talked about attempting nursing. There may be nursing jobs he cannot do because of his L3 fracture. He has no pre-accident qualifications and he is likely to need retraining. If offered vocational or rehabilitation training he will hopefully accept it. While retraining he may not be able to work full time or at all.
Mr Inthaphala is a young man nearly 25 years of age. He has 40 years or more left in the work force. In my view the sum of $100,000 is an appropriate buffer to compensate the claimant for his lost earning capacity. Superannuation is not claimed on the buffer.

Assessment of damages summary

I assess the claim as follows on the findings set out above:
·         Past loss of earnings (incl. superannuation)             $22,265.00
·         Tax on statutory benefits  $1,770.00
·         Future loss of earnings (incl. superannuation)         $100,000.00
Sub-total of economic losses  $124,035.50
Reduction for contributory negligence 33%  – $40,931.55
Total damages assessed  $83,103.45
The insurer would appear to be entitled to deduct the statutory benefits paid from these damages pursuant to section 3.40(1)(b).

ASSESSMENT OF COSTS AND DISBURSEMENTS

I assess the claimant’s legal costs and disbursements in accordance with the provisions of the MAI Act and the Motor Accident Injuries Regulation 2020 in accordance the costs calculation sheet noting:
(a)    entitlement to costs for stages 1, 2 ,3 and 4 is conceded;
(b)    the assessment conference lasted for three hours;
(c)    six hours of conferences are conceded;
(d)    fees associated with the reports of the three doctors are restricted to the regulated fee of $1,710 noting that the maximum fee allowed when multiplied by the monetary unit requires rounding up or down to the nearest dollar:
(i)Dr Chow - $1,710;
(ii)Dr Mendelsohn - $1,600 and $1,660; and
(iii)Dr Ting $3,875 reduced to $1,710.
(e)    costs associated with obtaining records from CMC ($42.20) and Liverpool hospital ($30) were agreed.
A disbursement is claimed for a ‘cancellation fee’ for Dr Chow. No evidence has been provided about why this cancellation fee was incurred or how the insurer would have any liability for this. I will not allow it.

[2021] NSWPIC 541

29 November 2021