Issa v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Issa v QBE Insurance (Australia) Limited [2022] NSWPIC 517
Claimant:	Nader Issa
insurer:	QBE Insurance (Australia) Limited
Member:	Maurice Castagnet
DATE OF DECISION:	19 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Assessment of a claim for damages; liability wholly admitted; claimant’s credit in issue; surveillance footage; Held – non-economic loss, past and future loss of earnings assessed; buffer allowed for loss of opportunity to earn additional income and profits from loss of business opportunities.
determinations made:	1. Under sub-ss 7.36(3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $1,175,846.03. 2. The insurer is to have credit for the sum of $78,155.13 under s 3.40(1)(b) of the MAI Act for the amount of statutory benefits already paid to the claimant. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $87,928.84 inclusive of GST.

STATEMENT OF REASONS

Issued under ss 7.36(1) and 7.36(5) of the Motor Accidents Injuries Act 2017

introduction

In this matter, the claimant, Nadar Issa brings an application for an assessment of a claim for damages under s 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect to the injuries he suffered in a motor accident on 16 April 2018.
On 4 May 2020, the claimant made the claim for damages with the insurer.
On 14 May 2020, the insurer wholly admitted liability of the claim.
On 1 October 2020, the insurer conceded that the claimant is entitled to damages for non-economic loss.
The matter has been referred to me for determination.
On 3 June 2022, I conducted an assessment conference.

AGREEMENTS REACHED AT THE ASSESSMENT CONFERENCE

The parties agreed that the following issues fall for determination:
(a)   the nature and extent of the claimant’s injuries;
(b)   the quantum of damages for past and future loss of earnings or earning capacity;
(c)   the quantum of damages for non-economic loss;
The parties further agreed that:
(d)   the deduction to be made under s 3.40(1)(b) of the MAI Act for the amount of statutory benefits already paid to the claimant is $78,155.13;
(e)   the Fox v Wood component is $15,631.03;
(f)    the rate to be applied to any award for past superannuation is 11%, and
(g)   the rate to be applied to any award for future superannuation is 14.42%.

THE NATURE AND EXTENT OF THE CLAIMANT’S INJURIES

The claimant’s evidence

In evidence, there were three signed statements from the claimant dated 15 April 2021, 17 September 2021 and 20 May 2022 respectively. The claimant also gave oral evidence at the assessment conference.
The claimant’s evidence may be relevantly summarised as follows:

Background

The claimant was born in 1980. He is currently 42-years-old. He is married with no children.
After he completed Year 12 of high school, he started working in the hospitality industry, mainly as a waiter. He said that he learnt how to make coffee as a barista and eventually obtained a manager’s role in the industry.
The claimant said that at the time of the accident, he had over 20 years’ experience in the hospitality industry.

The accident

The accident occurred at about 11.50pm on 16 April 2018. The claimant was the driver of a Hyundai hatchback in Vaughan Street, Lidcombe. He was reparking his vehicle at the request of a friend to prevent a truck driver from illegally dumping his load on his friend’s property.
His friend exited the vehicle to confront the truck driver. The truck accelerated and collided with the front left side of the claimant’s vehicle. The left passenger side of claimant’s vehicle caught on a metal object at the side of the truck and was dragged along the roadway. As the truck turned a corner, the claimant’s vehicle became free and spun, causing it to collide with a pole.
The claimant said he felt a strong impact when his vehicle collided with the pole. He was pushed back against his seat and his neck jerked forward.
His vehicle was written off.

Injuries and treatment

Following the accident, the claimant attended Auburn Police Station to report the accident. While at the police station, he felt intense pain in his neck and requested for an ambulance.
An ambulance attended and an officer assessed him at the police station. He was told he had whiplash. He was advised to see his general practitioner if the pain continued.
The claimant said during the week of the accident, he saw a general practitioner, Dr Jason Ting, at Parramatta Medical Centre. He was unable to see his usual doctor, Dr Maurice Matta of the Lane Street Medical Centre, as Dr Matta was away on holidays.
The claimant reported to Dr Ting that he had pain in his neck radiating to his right shoulder and that he felt tingling in his right arm below the elbow. Dr Ting referred him for an MRI. Dr Ting recommended physiotherapy but advised him to see a neurosurgeon first.
In May 2018, the claimant saw Dr Matta, who referred to a neurosurgeon, Professor Brian Owler.
In June 2018, the claimant saw Professor Owler. Professor Owler recommended surgery for his neck by way of an anterior cervical discectomy and fusion at C6/7.
The claimant said that he did not proceed with the surgery. He was scared of the risks and complications and wanted a second opinion.
In June 2018, the claimant started physiotherapy on average of once or twice a week. The claimant said that the treatment helped to alleviate his pain temporarily, but it did not benefit his neck.
The claimant said that, at that time, he told Dr Matta that he had been experiencing anxiety and insomnia since the accident.
In July 2018, the claimant started seeing a psychologist, Mr Hansen Li of Complete Allied Health Care. He was feeling depressed because he could not work. By that time, he was also having problems with his marriage. He was taking out the frustrations related to his pain and restrictions on his wife.
In early October 2018, the claimant started seeing another general practitioner, Dr Tom Lieng, at Lurnea Medical Centre. He said it was inconvenient to continue to see Dr Matta as he could only be accessed by appointment.
The claimant said that in October 2018, Dr Lieng referred him to a neurosurgeon, Dr Van Gelder, for a second opinion.
The claimant saw Dr Van Gelder in late October 2018. Dr Van Gelder told him that he agreed with Professor Owler’s recommendation for neck surgery.
The claimant said that, in late 2018, Dr Lieng prescribed him with Lyrica for his ongoing pain. The claimant said that the medication was of some benefit, but he stopped taking it because he was experiencing headaches, mood swings and anger.
The claimant said that, in February 2019, the insurer declined funding for further physiotherapy. By that stage, the claimant said that he had undergone 42 sessions of physiotherapy.
In March 2019, the insurer approved his recommended neck surgery. To date, he has not had this surgery because he is still scared of the risks and complications. The claimant said that he wants to keep his options open, and he has not completely ruled out proceeding with the surgery in the future.
In July 2019, the claimant started taking Alpha lipoic capsules for his pain. After a few months, he noticed that he was coping much better with this medication than with Lyrica.
In August 2019, the claimant said that he resumed physiotherapy, attending once a month at his own expense. From mid-2020, the treatment was paid for through the Medicare.
The claimant said that, in February 2020, he was certified fit for work with restrictions for up to 20 hours of work per week by Dr Lieng.
In January 2021, the insurer denied the claimant funding for further psychological treatment with Mr Li.
The claimant said that he continues to do home exercises recommended by his physiotherapist. The claimant said these exercises were of some assistance but did not give him the same improvements he gets from physiotherapy.

Previous injury

The claimant said that in 2001, he suffered a stab wound. He was walking with some friends when another group picked a fight. He recovered from this injury and had no ongoing problems, restrictions or disabilities.
The claimant said that, prior to the accident, he had no psychological problems.

Employment at the time of and before the accident.

Since early 2016 and at the time of the accident, the claimant was employed as a barista/café manager on a full-time basis with New Cafaroma Pty Ltd, trading as Social Hideout Parramatta. The claimant said that prior to that role, he was employed by Macquarie University as a café manager on a full-time basis.
The claimant said that, at the time of the accident, his normal duties included supervision and management of staff, making coffee - up to 167 cups per hour during busy times, moving 70 chairs and 35 tables on the premises, unpacking, lifting and moving milk and coffee boxes, handling stock, stocking shelves, serving food and beverages, clearing tables, doing rosters and the wages, answering emails and inquiries, co-ordinating events, handling customer queries and complaints, ordering stock and attending to other administrative tasks associated with the running of the café.
When questioned by counsel for the insurer why he did not describe his job as “Manager” in his personal injury benefits claim form, the claimant said he was in charge of doing everything before the accident.
When questioned by counsel for the insurer why he might have told Dr Dryson that he was employed as a “full-time barista” at the time of the accident, the claimant said that his administrative duties came as standard with the job.
When questioned by counsel for the insurer why, in the particulars provided by his lawyers to the insurer on 18 November 2020, he was described as a “full-time barista” at the time of the accident, the claimant said that he was the sole barista at the café at the time.
The claimant said when he commenced his employment with Social Hideout Parramatta, the company had two shareholders and a director/secretary.
The claimant said at the meeting with the shareholders at which he was offered the job as manager, the claimant was informed that the café had been running about five years. The two shareholders did not work or manage the business. The café was run by the sister of one of the shareholders. He was informed that the café was losing about $500 per week. The shareholders were looking for a new manager to turn things around.
The claimant said that, at that meeting, he reached an agreement with the two shareholders to the effect that, if the company grew and made profits, he would receive payments as a shareholder in addition to his wages.
The claimant said that after six months of managing the business and implementing his marketing ideas, he had improved the financial position of the business to the point where it was breaking even. After that, the business continued to skyrocket. The claimant said that, as a result of his considerable effort in raising the revenue of the company, he acquired a 33.33% share in the café.
The claimant said that when he took on his job as manager of Social Hideout Parramatta, he could see the potential of the business and predicted that it would at least earn him an income similar to what he had been earning as a café manager at Macquarie University. If this did not happen, he would have looked for another full-time café manager role with a different employer.

Employment after the accident – Social Hideout Parramatta

The claimant said that after the accident, he was in a lot of pain and was unable to continue physically working at Social Hideout Parramatta.
In oral evidence, the claimant said sometime after the accident, he did not recall exactly when, he was able to carry out his administrative duties to a lesser degree. The time he spent doing these duties varied but it could be up to 25 hours a week. The claimant said that he had no choice but to continue doing these duties because he was only person before the accident who had been involved in setting up the business, building it up, and hiring and rostering staff. No one else could do these things except him.
In oral evidence, the claimant said that he told Dr Ting that he could not work because he could not do the physical part of his job. To him, the physical part of his job was work. He regards the administrative and management duties as standard for the business to succeed.
The claimant said that he understood that was the basis upon which he received the statutory benefits from the insurer. He was not paid by the business for the administrative aspects of his job.
On 6 March 2020, the claimant attempted to return to the physical tasks of his job. He said that he was unable to do the physical tasks involved. He made three to four coffees and began to experience throbbing in his right hand. He left after about one and a half hours.
On 15 December 2020, the claimant said that he again attempted to return to his physical work. On this occasion, he undertook lighter duties such as greeting customers and supervising, directing and delegating tasks to staff.
The claimant said that the directors and shareholders, including himself, could not justify paying him a wage for lighter duties when other staff could do a better and more efficient job. The claimant said that the business is not big enough to allow him to undertake and receive wages for lighter duties. The claimant said that he has been unable to continue physically working at the café thereafter.
The claimant said that he continues to undertake administrative aspects of his former job without a wage.
In oral evidence, counsel for the insurer put to the claimant that in the 2020 financial year, New Cafaroma Pty Ltd made a net profit of $34,000. He then was asked whether he had received any shareholder payments from the company. The claimant said that the company has not paid any dividends to shareholders.

Employment after the accident - Social Hideout Waterloo

The claimant said that in June 2018, he and the other two shareholders of Social Hideout Parramatta registered another company, Kassissa Pty Ltd for the purpose of opening another café at Waterloo. The company bought an existing café for between $50,000 to $55,000 and renovated it. The café also traded as Social Hideout (Social Hideout Waterloo).
The claimant said he and the Social Hideout business partners had plans before the accident to open more cafés if the café at Parramatta proved successful.
The claimant said that his wife lent him more than $40,000 as the capital necessary to embark on this venture.
The claimant said that there was an agreement with the other two shareholders that, if Social Hideout Waterloo was successful, he would be entitled to 40% of the profits. It was also agreed that on top of this he would receive a salary of $100,000 per annum plus super to manage both cafés.
The claimant said that by September 2018, Social Hideout Waterloo began operations under a three-year lease.
The claimant said that because of his injuries, he had limited capacity to work on site. He attempted to contribute in any way he could. Due to his injuries and limitations, he had to rely on others to implement, for example, his concept of flowers on the ceiling and the walls of the café.
The claimant said that despite implementing the flower concept, Social Hideout Waterloo had suffered as a result of his absence and the company has not been able to turn a profit.
The claimant said that the cafés had closed down because of Covid-19 restrictions but said it was clear that the decline in success was caused by the lack of his involvement following his injuries.
The claimant said that he has only been able to contribute in an administrative capacity to the Waterloo business, involving similar duties to those he is currently undertaking with Social Hideout Parramatta.
The claimant said that he has not received any wages for undertaking these administrative duties as he continues to be a shareholder.
The claimant said that, if not for the accident, he would have been able to be involved in the physical running of the business and would have had a more hands-on role in the business. He said that he would have been able to run the café as well as undertake the administrative tasks involved in the running of the café.
The claimant said that he had to hire staff to manage the café and do the work he would have been able to do. He said that the accident has cost the business money in wages.

St Aubaine Café Ultimo

The claimant said sometime after the accident, he was approached by his brother and a friend, Peter, about running another café for them. The other two shareholders of the Social Hideout cafés had no objection to the idea.
The claimant said that he had explained to Peter and his brother that, because he was limited in his capacity as a result of his injuries and disabilities, the prospects of success were reduced. The claimant said that Peter and his brother nonetheless begged him to assist them in setting up the business.
The claimant said the business was set up in March 2019. Now Is The Time Pty Ltd was registered with ASIC. The company traded as St. Aubaine Café in Ultimo (St. Aubaine Café). The claimant was a director in the venture.
The claimant said the business was not able to take off because of his inability to give it the push it required. The claimant said, in addition, it did not help matters that neither Peter nor his brother worked in the café.
The claimant said that a total of three staff members were hired - a barista, a cook and floor staff. The claimant believed this café could have operated with two staff members if he had been able to physically work in the business.
The claimant said that St. Aubaine Café stopped trading in December 2019 because it was struggling and closed down in March 2020 because of the Covid-19 pandemic. The claimant said that the business was struggling before the pandemic because he was not able to be involved in a hands-on capacity.
The claimant said (as at the date of his statement on 22 May 2022) his brother and Peter continue to pay rent for the lease.

Olivissa

The claimant said that in July 2019, he became a director of Olivissa Pty Ltd. (Olivissa) He is one of two directors and one of two shareholders of the company. The company was set up to trade in organic skincare products.
The claimant said Olivissa started trading in about August 2020 as an ecommerce business under the name of Feniu. The business sells organic skincare products that are bought from suppliers and then packaged and marketed by Feniu on social media platforms.
The claimant said that a customer of Social Hideout Parramatta approached him with the idea for this venture. He said he agreed to participate because he was struggling to earn an income as a result of the accident.
The claimant said that the extent of his involvement in the business was limited to providing capital of approximately $60,000 to kick start the venture. The claimant said that he borrowed these funds from relatives.
The claimant said that the other director/shareholder handled the running and management side of the business which included ordering products, packaging, shipping and all other work involved in the running the business.
In his later statement of 20 May 2022, the claimant said that the other director was not happy with him because he avoided helping with packing, deliveries and engaging in regular meetings with buyers.
The claimant said that, so far, the company had not been able to generate a profit.

Classical Logic

The claimant said that in July 2019, he became the sole director, secretary and shareholder Classical Logic Pty Ltd (Classical Logic). The company handles the payroll for Social Hideout Parramatta and Waterloo.
The claimant said that this company does not generate a profit and does not have any employees. It was set up on the advice of his accountant.

The claimant said that he does not receive any money from this business.

P & N Maintenance and Cleaning Services

The claimant said that since about January 2019, he has been involved with another company, P & N Maintenance and Cleaning Services Pty Ltd. The company was registered in January 2019. He is the sole director and secretary.
The claimant said that the company was established with a friend who was not able to be listed as a director because of financial and personal reasons.
The claimant said that the company conducts business as a subcontractor offering cleaning, gardening services, and strata maintenance services. The company acts as a middleman between the business providing the services and the customers.
The claimant said that he and his business partner receive calls from clients requesting professional services such as cleaning and gardening. The company provides the customers with quotes and, if it secures the contract for the service, it obtains a fee from the service provider.
The claimant said that the company provides the same service for strata management companies in securing cleaning and maintenance contracts.
The claimant said that, despite his injuries and disabilities, he continues to be involved with the company business. The extent of his involvement is limited to undertaking some of the administrative work for the business. He does this work for four to eight hours per week.
The claimant said that he has “never taken money” from the business.

Current earnings

The claimant said that his earnings have diminished since he suffered his injuries.
In oral evidence, the claimant said that since he stopped receiving weekly payments of statutory benefits from the insurer, he has not been received any wages from New Cafaroma Pty Ltd. He has not been paid any dividends by any of the companies mentioned above.
The claimant said that he was on track to earning 33% of the profits for Social Hideout Parramatta and 40% of the profits for Social Hideout Waterloo. Those earnings would have been on top of a salary of $100,000 per annum plus super.
The claimant believed that this would have amounted to a total of $330,000 per year. He had expected this to have occurred by the end of 2018 or early 2019 but for the accident.
The claimant said that he has, to some extent, been able to re-deploy his labour but this has not provided financial rewards.

Lifestyle

The claimant said that, prior to the accident, he was a social, happy and optimistic person. He was attending the gym on average five times a week. Since the accident, he has not been able to do so.
The claimant said since the accident, he has had little patience. He feels irritable “all the time” and he gets angry. He often feels embarrassed after having temper tantrums.
The claimant said that he has become a negative person and has lost a lot of self-confidence. Not being able to work in a physical capacity is starting to take a toll on him mentally.
The claimant said that his physical and psychological injuries has negatively impacted his relationship with his wife. They had to live apart for some time after they were married. They want to start a family but he feels unable to do so because he is in debt and has not been able to earn a living.

The medical evidence

I considered all the medical evidence submitted by the parties in their material. There is no medical dispute about the claimant’s injuries, disabilities and impairments.

Professor Owler

The claimant was seen by neurosurgeon, Professor Brian Owler on 26 June 2018. Dr Owler provided a report to Dr Matta on the same day.
Professor Owler noted that, after the accident, the claimant developed significant pain at the right side of the cervical spine at the C7 level, involving the region of the scapula, travelling down to the forearm and into the hand.
Professor Owler noted that the MRI done on 8 May 2018 shows a disc protrusion on the right side involving the C6/7 exit foramen and compression of the C7 nerve root.
The claimant reported to Professor Owler that he had noticed some loss of the bulk in the triceps muscle of his right arm but there was no significant loss of strength.
On examination, Professor Owler found that the claimant had a reasonable range of motion of the cervical spine but there was exacerbation of his symptoms on rotation to the right side.
Professor Owler was of the opinion that the claimant was a candidate for surgery to the neck by way of an anterior cervical discectomy and fusion at the C6/7 level.

Dr van Gelder

On 26 October 2018, the claimant was seen by neurosurgeon and spine surgeon, Dr James van Gelder following a referral from his general practitioner, Dr Tom Lieng.
Dr van Gelder provided a report to Dr Lieng on 30 October 2018.
In his report, Dr van Gelder recorded that the claimant described right cervical radiculopathy symptoms after the accident. As a result, the claimant had stopped working as a barista because it was painful to move his neck looking down. Pain radiated down the right side of his neck, into the shoulder and down his arm into the back of his hands. He had numbness in the third, fourth and fifth fingers.
Dr van Gelder was also of the opinion that the claimant was a candidate for the recommended surgery. He noted that, for the time being, the claimant preferred to continue with physiotherapy and light exercise.

Mr Li

Since July 2018, the claimant was treated by psychologist, Mr Hansen Li. A number of Dr Li’s treatment reports are in evidence.
In his report of 25 July 2018, Mr Li recorded that the claimant reported to him that he was a café shop owner and full-time barista. Prior to the accident, he would visit the gym six days per week and would engage in many social activities with friends. Prior to the accident, he would take really good care of his personal appearance.
In his report of 9 April 2021, Mr Li noted that the claimant had no prior history of Post-Traumatic Stress Disorder or depression.
Mr Li was of the opinion that, as a result of the accident, the claimant was suffering from Post-Traumatic Stress Disorder and Major Depression.
Mr Li believed that the claimant’s psychological injuries appear to be permanent and future psychiatric assessment may be beneficial in the assessment of any degree of permanent impairment.

Assessor Home

On 8 April 2019, the claimant was assessed by MAS Assessor Alan Home for the purpose of a treatment dispute regarding his physiotherapy treatment.
Assessor Home found that further physiotherapy treatment would not alter the claimant’s outcome or reduce disability prior to neck surgery.
Assessor Home found that the mechanism of the accident caused the cervical spine injury. He found that, on the available evidence, the accident aggravated underlying cervical spondylosis and likely caused an acute C6/7 disc injury with associated C7 radicular complaints and clinical findings of C7 radiculopathy.

Dr Dryson

The claimant was examined by occupational physician, Dr Evan Dryson on 4 March 2020 at the request of his lawyers. Dr Dryson provided a report on 10 March 2020.
The claimant reported to Dr Dryson that he had ongoing neck pain which fluctuated in intensity. The pain radiated into the right shoulder girdle, the right arm, the upper back and down to the lower back. He has reduced movement in his right shoulder and he has lost muscle strength in the right arm.
The claimant reported to Dr Dryson that he has been employed as a barista at the Social Hideout Parramatta café on a full-time basis for the previous two years. The claimant reported that he has not been able to return to work since the accident but was due to undertake a work trial and start his first shift the day after the examination.
The claimant reported to Dr Dryson that he had suffered anxiety and depression since the accident because he had not been able to work. This condition had also affected his relationship with his wife.
The claimant reported to Dr Dryson that he was taking Lyrica daily and Nurofen as required. He was taking sleeping pills at night.
On examination, Dr Dryson found that there was asymmetric loss of range of movement in the cervical spine and a reduced range of movement in the right shoulder. Dr Dryson believed that the altered sensation in the right hand was broadly consistent with the C7 dermatome. There was loss of grip strength on the right.
Dr Dryson was of the opinion that as a result of the accident, the claimant had sustained an aggravation of the C6/7 disc disease with right sided C7 radiculopathy.
Dr Dryson believed that surgery might well relieve the radiculopathy symptoms in the right arm, but it was likely that the neck impairment would remain.
Dr Dryson assessed the claimant’s whole person impairment at 22%.
The claimant was re-examined by Dr Dryson on 8 October 2021. He provided a further report on 21 October 2021.
On this occasion, the claimant reported to Dr Dryson that he was spending his time between the two Social Hideout cafés at Parramatta and Waterloo. He had largely ceased work at the cafés and was doing some administrative tasks. He attended the cafés from time to time, walking around and supervising staff. He carried the occasional plate.
Dr Dryson confirmed that there was no change to his previous diagnosis. He was of the opinion that, as a consequence of the injuries, the claimant was, at the date of his examination, fit for work of sedentary to light physical demand of up to 20 hours per week. Dr Dryson believed that this would continue until retirement age.
Dr Dryson was of the opinion that the claimant may not even be able to undertake light administrative tasks in 10-15 years if his cervical spondylosis progressed, and noted that this is the natural history of cervical spondylosis.

Dr Chen

The claimant was examined by consultant occupational physician, Dr Joan Chen, on 18 June 2020 on behalf of the insurer. Dr Chen provided a report on 19 June 2020.
The clamant reported neck, right shoulder and right arm symptoms to Dr Chen that were consistent with those he had reported to Dr Dryson three months earlier.
He also reported to Dr Chen that he had numbness and intermittent tingling over the right ring and little fingers and that he suffered from bi- temporal headaches about three or four times a week.
Dr Chen recorded that the claimant reported that, since early 2016, he had been working on a “casual basis” as a barista with Social Hideout Parramatta.
Dr Chen reported that the claimant usually worked four to six hours, four days per week, averaging 20 to 25 hours per week. His duties included making coffee, handling stock (crates of milk, boxes of packets of coffee, packages of cups and lids), and moving tables and chairs. He assisted the waiters to set up and pack the tables and chairs for the customers outside the café area.
The claimant reported to Dr Chen that his main duty is that of a barista but he helps the waiters to serve food and beverages and to clear tables.
On examination of the cervical spine, Dr Chen found there was restricted movement and pain in the neck and the right shoulder blade on right rotation. On left rotation, there was restricted movement in the neck and pain in the right shoulder blade. There was slight tenderness in the right lower cervical spine at C5/6 and C6/7 levels.
On examination of the right shoulder itself, Dr Chen found that there was restricted abduction and flexion movements due to pain in the right shoulder girdle.
On neurological examination of the upper limbs, Dr Chen found weakness in the right arm, in the triceps muscles, wrist extension and little fingers. There was reduced right hand grip strength by 50% compared to the left. The distribution of numbness in the ring and little fingers correlated with the C8 dermatome.
Dr Chen was of the opinion that the claimant presented with signs consistent with C7/C8 radiculopathy, with referred pain in the right shoulder blade and upper arm triceps area, accompanied by weakness in the distribution of the C7 and C8 myotomes, and tingling and numbness in the distal C8 dermatomal distribution.
Dr Chen was of the opinion that the accident probably caused an aggravation of pre-existing lower cervical disc degenerative disease, such aggravation being persistent rather than temporary.
Dr Chen agreed that there is support for the recommended surgical intervention based on her clinical findings and her observations of the imaging findings.
Dr Chen was of the opinion that the claimant was fit for part-time suitable duties of 20 to 25 hours per week, while avoiding repetitive right arm activity and heavy lifting.
Dr Chen agreed with Dr Lieng’s recommendation that the claimant was fit to resume suitable duties at 20 hours per week from 17 February 2020.
Dr Chen assessed the claimant’s whole person impairment at 15% which was attributed to the neck injury. Dr Chen believed that the referred pain levels from the neck to the right shoulder varied from time to time. As a consequence, she believed that the shoulder movement impairment could not be considered stabilised and therefore permanent impairment could not be assessed.

Vocational assessments

On 2 December 2019, the claimant was assessed by rehabilitation consultant and clinical psychologist, Ms Michaela Wesson on behalf of the insurer. Ms Wesson provided a vocational assessment report on 19 December 2019.
From a physical functional perspective, Ms Wesson’s assessed the claimant as having the capacity to perform light level roles with restrictions, including lifting up to 5kg, carrying limited to up to 6.5kg in the left hand, 4kg in the right hand and 6.25kg with both hands, no overhead work with the right arm and stooping limited to short periods at a time.
From a vocational perspective, Ms Wesson relied on labour market research and identified the positions of retail assistant, cashier and customer service officer as suitable roles for the claimant for 20 hours per week, with the capacity to increase to full-time hours in the future.
On 20 September 2021, the claimant was assessed by vocational assessor and registered psychologist, Ms Georgina Whitley at the request of his lawyers. Ms Whitley provided a report on the same day.
The claimant reported to Ms Whitley that at the time of the accident he was working full time in a self-employed capacity as a barista for New Cafaroma Pty Ltd. His hours of work averaged around 40 hours per week. He was a shareholder of the business.
Noting the claimant’s work background, and noting the medical opinion that the claimant would be suited to more sedentary work, including office-type duties, which he was currently performing, Ms Whitley expressed the following opinion:
“It was clear that Mr Issa is an entrepreneurial man who has operated a successful café previously and worked in management positions in hospitality. As such, I do believe that the jobs suggested (retail assistant, cashier, customer service officer) would provide very little by way of satisfaction to Mr Issa, and he would find these roles demeaning.”
In Ms Whitley’s opinion, it is most likely that the claimant will continue in a self-employed, albeit reduced, capacity for as long as he is able.
In his report of 21 October 2021, Dr Dryson commented that the claimant has only ever worked in the café industry as a waiter and then as a barista. He has only been able to maintain his current limited involvement in the Social Hideout cafés because of his financial interest in the cafés. Dr Dryson believed that it was clear that the claimant would not be competitive on the open labour market in respect of any employment as a barista or café worker.
Dr Dryson commented that work as a retail assistant would involve physical tasks that would include lifting, carrying, stretching and reaching. In his opinion, this would not be a suitable option for the claimant.
Dr Dryson commented that working as a cashier would require the claimant to be constantly involved in operating a computer terminal. Dr Dryson believed this would not be a suitable option for the claimant. The work would also involve twisting of the neck, stretching of the arms at the shoulders and some lifting and carrying, which is beyond the claimant’s capacity. In his opinion, the claimant is only fit for sedentary to light work where there is ability to take a break from repetitive activity for 30 minutes. Similarly, he believed that a role as a customer service officer would be unsuitable for similar reasons.

Credit

The insurer challenged the credibility of the claimant in two respects. Firstly, the insurer relied upon surveillance footage to suggest that the claimant was not as disabled as he claimed, and secondly, the insurer claimed the claimant was not truthful about his pre accident roles.
Given the substantial concurrence of the medical evidence, these challenges were somewhat surprising.

Surveillance footage

The insurer arranged for Procare Investigations to make audio-visual recordings of the claimant between 8 November 2019 and 6 December 2020. The audio-visual recordings consisted of about seven hours of surveillance footage (the surveillance footage).
The insurer submitted that the claimant was observed in the surveillance footage bending at the waist, adjusting a heavy sculpture with another person, sitting and working on his laptop for more than ten minutes, adjusting furniture and a large outdoor umbrella by himself.
In oral evidence, counsel for the insurer put to the claimant that, on one occasion, he was “jogging” to greet a delivery driver at the front of Social Hideout Waterloo café. The claimant said that he was doing some quick walking steps.
The surveillance footage was reviewed by Dr Dryson. In his report of 21 October 2021, Dr Dryson commented that at no time was the claimant observed to undertake activities above light physical demand, nor was he undertaking activities for lengthy periods of time. In his view, there was no inconsistency with the claimant’s reported symptoms, reported data and demonstrated functional capacity.
The surveillance footage was also reviewed by Dr Lieng. In an undated report, he expressed the view that the duties which the claimant was performing were within his certified restrictions.
I have viewed the surveillance footage.
I note there was some footage of the claimant taken inside the St Aubaine café premises on 20 December 2019. No issue was taken with this part of the footage by the claimant at the assessment conference, and I put to one side questions as to the legality of the filming in light of s 8 of the Surveillance Devices Act 2007.
Some of the activities that the claimant can be seen performing, were not stated in his initial statement on 15 April 2021. He subsequently addressed these issues in his statement of 17 September 2021 and in his oral evidence.
I did not regard the greeting of the delivery driver as a jog or jogging. I viewed the action as a few hurried steps lasting a few seconds.
I have carefully reviewed all of the surveillance footage and concluded that it does not contain any material that would reliably serve to undermine the claimant’s credit or contradict his evidence or the case he seeks to make.

Pre-accident role

In oral evidence, the insurer challenged the credibility of the claimant with a series of questions suggesting that he was not entirely truthful about disclosing the managerial and administrative aspects of his work at the Social Hideout Parramatta café at the time of the accident and after the accident. In particular, the claimant did not disclose that he was a café manager and shareholder in the business until service of particulars in December 2020.
While this was undoubtedly the case, I note that the claimant’s first identification of his role to the insurer was made in the context of his claim for statutory benefits. He described himself as an employee of the Social Hideout Parramatta café business. That was an accurate description.
I do not think that the claimant made a deliberate attempt to mislead the insurer by not fully disclosing his role in the cafe business. There was no financial benefit to be gained by downplaying his role and earning capacity.

Further, I accept the claimant’s evidence to the effect that he considered his administrative duties as ancillary to his primary role of barista and café manager.

Further submissions regarding credit

In oral submissions, counsel for the insurer submitted, that, to a large extent, the doctors are reliant on an accurate history from the claimant to assess the extent to which his symptoms and disabilities affect his function. This is particularly so with the psychological injury, where there is nothing objective and the psychologist would be completely reliant on what the claimant says his symptoms are. On that basis, my assessment of the claimant’s credit is critical to make an accurate determination of the extent of disability.
Counsel for the insurer submitted that it can be readily accepted that, given the nature of his neck injury with some objective sign of radiculopathy to the right, the claimant is not fit to do heavy manual work involving the right arm. However, in assessing to what extent the claimant’s “say-so” as to what he is feeling can be accepted, it is important to look at what he said about his background before and after the accident.
While I accept these submissions, I do not accept that the claimant’s credit has been impugned in any significant way. I generally accept his evidence.

Other lay evidence

The claimant also relied upon a number of statements from other lay witnesses in support of his evidence concerning the extent of his disabilities, his ability to work after the accident and his entrepreneurial skills.
In making my findings in the matter, I considered the evidence of the following witnesses in so far as that evidence was relevant:
(a) The two signed statements from the claimant’s wife, Sandy Tang, dated 15 April 2021 and 2022 respectively.
(b) The signed statement from Michael Chua, dated 18 November 2021. Mr Chua was a waiter at Social Hideout Parramatta from 2017 to at least the date of his statement.

(c)   The signed statement from Fernando Lay, dated 19 November 2021. Mr Lay was a barista at St Aubaine café from August 2019 until March 2020 and he subsequently worked at Social Hideout Waterloo.
(d)   The signed statement from the claimant’s business partner in Feniu, Mele Olivetti, dated 24 November 2021.
(e)   The signed statement of one of the claimant’s business partner in the Social Hideout cafés, Fouad Kassem dated 11 May 2022.

Also in evidence was a “reference” from CPM marketing. The document was undated, unsigned and its author was not identified. In these circumstances, I did not give this document any evidentiary weight.

My findings

I am satisfied that the medical evidence and the claimant’s evidence establish that the claimant suffered a significant injury to the cervical spine in the accident.
I find that as a result of the accident, the claimant has sustained an aggravation of cervical underlying spondylosis which has caused an acute C6/7disc injury resulting in C7 and C8 radiculopathy, reduced range of movement in the right shoulder, reduced strength in the right arm, loss of grip strength on the right and numbness and tingling in some of the fingers of the right hand.
In making this finding I accept the evidence of Dr Dryson, Dr Chen, Assessor Home, Professor Owler and Dr van Gelder.
I am satisfied that the claimant’s neck injury has caused, and continues to cause, persistent pain in the neck, that fluctuates in intensity and radiates into the right shoulder, right arm, upper back and lower back.
Considering the evidence of Mr Li, Dr Dryson and the claimant’s evidence, I am satisfied that the claimant’s ongoing physical disabilities and impairments have resulted in a significant psychological reaction in the form of Major Depression and Post Traumatic Stress Disorder.
I am satisfied that the claimant’s injuries, disabilities and impairments have impacted on his past ability to work as a barista and his ability to do any moderately heavy, or repetitive manual work.
I am satisfied that the claimant’s injuries, disabilities and impairments will continue to impact on his future earning capacity.

DAMAGES FOR NON-ECONOMIC LOSS

In his earlier submissions, the claimant made a claim for damages in the sum of $350,000. In his submissions of 17 May 2022, the claimant submitted that upon reflection, that claim is amended to $450,000.
The insurer submits that the sum of $220,000 would be appropriate.
There is no controversy that the assessment of damages for non-economic loss is at large, subject to a statutory cap of $595,000.
At the time of the accident the claimant was just turning 38 years of age. He is now 42 years of age. He has a life expectancy of at about 41.5 years.
Before the accident, the claimant was enjoying an active lifestyle and was in a steady relationship. There is no suggestion that he was restricted by any physical or psychological ailments. He had pre-existing degenerative conditions in his neck but these were made symptomatic by the accident.
At the time of the accident, the claimant was working hard at consolidating his career in the hospitality industry while also applying his entrepreneurial skills in planning to expand his hospitality business and establishing other commercial ventures. He enjoyed his work.
In the accident, the claimant has suffered a significant neck injury which has rendered his pre-existing degenerative conditions symptomatic, with resultant ongoing symptoms, disabilities, and restrictions to which I have referred in my findings. He has since developed a psychological reaction resulting in post-traumatic stress disorder and major depression.
As a result of these injuries, the claimant has suffered financial distress, emotional distress and issues affecting his relationship with his long-time partner who is now his wife. The claimant has been deprived of the opportunity to apply his entrepreneurial skills and personal exertion to their full potential to achieve success in his career.
The impairments he suffers are ongoing and are likely to not only endure but to worsen in the future. It is probable that he will succumb to neck surgery at some point in the future. At best, this will relieve some symptoms in his arm, but will not alleviate pain and restricted movement in his neck.
The claimant’s prospects are for a limited and restricted working life expectancy to work on a part-time basis in sedentary duties. His capacity to perform tasks around the home will be similarly impaired.
In all the circumstances, it is reasonable to allow the sum of $350,000 as damages for non-economic loss.

DAMAGES FOR PAST AND FUTURE LOSS OF EARNINGS OR EARNING CAPACITY

The legislation and legal principles

Section 4.5(1)(a) of the MAI Act provides that damages may be awarded for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity.
In cases such as Medlin v State Government Insurance Commission [1995] HCA 5 and Husher v Husher [1999] HCA 47, the High Court of Australia confirmed that the issue to be determined in the present case is whether the claimant has sustained a loss or diminution of his earning capacity and if so, whether that loss or diminution will result in economic loss.
In calculating any economic loss into the future, I must have regard to the provisions of s 4.7 of the MAI Act.
Section 4.7(1) of the MAI Act provides that damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based, accorded with the claimant’s most likely future circumstances but for the injury.
Section 4.7(2) of the MAI Act provides that the amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
Section 4.7(3) of the MAI Act provides that if an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Section 4.9(1) of the MAI Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. Section 4.9(2) of the MAI Act prescribes a discount rate of 5%.
Section 4.7 of the MAI Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks [2004] NSWCA 201 is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine.

The claimant’s submissions

In making his submissions on past economic loss, the claimant relied on the forensic accountant report of Chris Katehos and Cecilia Tang of Furzer Crestani dated 20 May 2022 (Furzer).
The claimant submits that after the accident, he has been unable to return to full-time work of any kind.
The claimant contends that the extent that he has worked after the accident in light work and part-time supervisory and administrative roles has been the full extent of his capacity to work from the date of the accident to date.
As a consequence of his injuries and disabilities, the claimant contends that it is more likely than not that he will continue to be incapable of engaging consistently in full-time employment reasonably available to him on the open labour market, up to age 67.
The claimant submits that he intends to continue to work in the future but contends that it is more likely than not, that he will be restricted to part-time sedentary work, and will probably be faced with increasingly irregular periods of employment and greater difficulty obtaining and maintaining work as he ages.
The claimant accepts that assessing and determining the extent of his loss of earning capacity caused by his injuries and in determining the extent and quantum of his loss of earnings and the quantum of damages to be awarded for the loss, is not straight forward.
The claimant accepts that he has often described himself as a café manager or a barista but contends that those titles only describe part of his pre-accident activities and post-accident intended career path, but for his injury.
The claimant submits that although he pursued a career in hospitality since leaving high school and ultimately became a café manager, he was, before the accident, also an entrepreneur who was capable of developing and expanding successful businesses in hospitality and other areas of commerce.
The claimant submits that since the accident he has not been capable of developing or expanding, or even working at businesses that he was trying to develop or expand before the accident occurred.
The claimant submits that I would reject the opinion expressed in the forensic accountant report of Lance Kahler of Vincents, dated 5 November 2021 that the available evidence suggests that post-accident, the claimant has successfully redeployed his labour (from a café manager and barista pre-accident) as a business owner/operator and entrepreneur.
The claimant submits that I would accept the conclusion and opinions of Furzer that the claimant’s involvement in the businesses he established or had an interest in post-accident, was minimal and that he derived no renumeration from those businesses.
The claimant submits that I would also accept that Furzer’s conclusion but for the accident, the claimant would have undertaken a more active role in some of these businesses such that:
(a) profitability of these businesses would have been higher than actually achieved and,
(b) the claimant would have been able to derive a renumeration and/or profit share in those businesses.
The claimant submits that rather than taking into account his actual earnings, pre-accident, to determine a fair sum to be awarded to the claimant to compensate him for his loss of earning capacity, Furzer determined that the claimant’s pre-accident work hours and duties were at least equivalent to those of a full-time employed café and restaurant manager.
The claimant therefore submits that I should accept Furzer’s opinion that a fair assessment of his probable earnings but for the injuries sustained in the accident would be at least earnings equivalent to full-time male employed café and restaurant managers in Australia being $1,578 gross per week or $1,161 net per week based on working hours of 40 hours per week as at May 2018.
Accordingly, the claimant submits that in determining his past economic loss, I should make an award of $258,772 based on Furzer’s assessment outlined on page 17 and Schedule C on page 28 of their report together with adjustments to the date of the assessment conference to arrive at the figure of $271,015.
The claimant submits that he would at all relevant times, have been paid a wage or renumeration by the corporate entities and would have been entitled to claim superannuation benefits from his employers. Accordingly, the claimant makes a claim for loss of superannuation on past and future loss of earnings.
As to his future loss of earning capacity, the claimant submits that I should have regard to Furzer’s assessment on pages 18 and 19 of their report. Furzer’s assessment is based on the assumption that the claimant would, in the future, only be able to exercise, consistently, a residual earning capacity of no more than 50% of his estimated earnings as a full-time barista and café manager until retirement at age 67.
However, the claimant also contends that on the basis of Dr Dryson’s evidence of a probable restricted work life expectancy, it would be appropriate and reasonable to accept in all probability, the claimant will experience total incapacity or no residual earning capacity for at least 10 years of his normal working life to age 67.
The claimant submits that the application of a 20% deduction for vicissitudes is an appropriate way to take into account any additional uncertainties which may have been involved in the claimant’s future working life even if the accident had not occurred.
The claimant further submits that it may be appropriate to award additional damages by way of a buffer or cushion to compensate the claimant for the additional loss of opportunity or loss of capacity to successfully operate other businesses in circumstances where the claimant’s probable earning from these ventures and/or the success or otherwise of those ventures is difficult to determine.
The claimant submits that in the circumstances of this matter, a buffer in the order of $200,000 would be an appropriate sum in that regard. This sum roughly equates to about $300 net per week.
Accordingly, the claimant claims future economic loss as follows:
(a)$294,594 – based on 50% of $1,327 net per week to age 57.
(b)$210,889 – based on 100% of $1,327 net per week for 10 years from age 57, deferred for 15 years.
(c)$200,000 – additional buffer or cushion for loss of opportunity to earn additional income or profits from extra and additional hours of week and/or by way of loss of profits from loss of business opportunities.
(d)$72,883 – future loss of superannuation contributions ($505,433 x 14.42%).

Insurer’s submissions

In making its submissions on past and future economic loss, as well as reliance on the evidence generally, the insurer also relied on the forensic accountant report of Lance Kahler dated 5 November 2021 and the supplementary forensic accountant report of Lance Kahler and Robert Smith of Vincents, dated 18 May 2022 (collectively referred now as “Vincents”)
The insurer submits that it is difficult to precisely ascertain the work duties being performed by the claimant at the time of the accident and the claimant’s reports of his pre-accident work hours and duties have been inconsistent.
Having regard to the most contemporaneous information about the claimant’s pre-accident work duties and hours, the insurer assesses past economic loss with pre-accident work hours of between 20 and 25 hours, working full-time as a barista (café worker) and earning $500 net per week.
The insurer has paid a total of $78,155.13 in weekly benefits based on pre-accident weekly earnings of $548 gross per week.
The insurer submits that past economic loss should be allowed in the sum of $96,841.26.
As to the claimant’s claim for future economic loss, the insurer submits that no allowance should be made. In the alternative, a modest buffer could be allowed.
The insurer submits that the claimant “elected” to alter his work duties to start new businesses after the accident which have not proved very profitable. The claimant has capacity to perform administrative work duties and any loss of earnings proportionate to his pre-accident income are related to the financial health of his start-up business and not causally related to the accident. Notably, if the claimant’s business had been highly profitable, he would have earned more after the accident than he did before the accident as a barista.
I note that this submission is at odds with the opinion expressed by the insurer’s own expert in the 2021 Vincents report. In that report, Mr Kahler was of the opinion that having regard to the claimant’s involvement in establishing two new cafés, a catering services business, a strata maintenance and cleaning services business and a business as an online cosmetics wholesaler/retailer, the available evidence suggests that since the accident, the claimant has successfully deployed his labour as a business owner/ operator and entrepreneur.
Mr Kahler was also of the opinion that whilst financial records are available for the café businesses, having regard to the significant disparity between the benchmark ratios of those businesses and the Australian Taxation Office benchmarks for coffee shops, it is highly likely that the businesses have not reported all of their sales income and expenses. It is therefore unlikely that the reported financial results are a reliable measure of the actual performance of the businesses either prior to or since the accident. As a consequence, it is not possible to determine the claimant’s true earnings from the available records.
I note that there is nothing in evidence to support that supposition.

Determination of damages for past loss of earnings

The claimant’s evidence is that at the time of the accident, he was paid wages of about $500 net per week. This evidence is consistent with the wages declared in his personal injury benefits claim form for his renumeration for his work as a barista/café worker. It is also consistent with his PAYG summary for the 2018 financial year.
It is also the claimants’ evidence that when he accepted the role of manager of the Social Hideout Parramatta café in early 2016, he accepted that he would sacrifice part of his wages in that role to allow the business to turn around and start making a profit. This was on the basis of an agreement with his business partners that when the business eventually made a profit, he would be renumerated for the wages sacrificed by receiving payments as a shareholder in addition to those wages.
That agreement was consolidated when he acquired a 33% share of the café after six months. Other documentary evidence before me shows that this happened in December 2016.
The claimant’s evidence is that in December 2016, the business improved to the point that it was breaking even. The claimant said, “after that, the business continued to skyrocket”.
According to the 2021 Vincents report (page 27 at paragraph 4.46), the financial statements of the New Cafaroma Pty Ltd show that the claimant was entitled to shares of profit of $13,999, $6,319, $3,408, and $10,366 in the 2017, 2018, 2019 and 2020 financial years respectively.

The company’s tax return for 2021 financial year was also in evidence. It showed a net profit of $67,278. It follows that the claimant’s share of net profit would be $20,759.
I note the continued profitability of the business notwithstanding Covid 19.
Despite the business having made a profit in those financial years and being entitled to take his share of the profit of 33.3.%, the claimant’s evidence is that he did not receive any dividends.
While it is not clear from the claimant’s evidence why he chose not to take his share of profits to supplement his wages when the business started making a profit in 2017 and 2018, I note the commencement of the Social Hideout Waterloo Café business in 2018.
I note also the claimant’s evidence of his attempts to establish other business from which to derive an income. It is clear from the evidence that these attempts have been hampered by the claimant’s physical and psychological disabilities.
In all the circumstances, I have reached the conclusion that the appropriate measure of the claimant’s past earnings should be his actual earnings at the time of the accident. In that regard, I note that according to the 2021 Vincents report (page 18 at paragraph 4.3.9), Mr Kahler found after considering the financial documents in evidence, that the claimant was earning on average $570 gross per week for some time prior to and as at the date of the accident. On a net basis that equates to $517 per week.
I accept that the claimant was unable to do his physical duties as barista and café worker and that he has not been paid for his managerial and administrative duties from the date of the accident to date. I accept that his wages as a barista and café worker was $517 net per week.
I therefore allow the claimant past loss of earnings as follows:
$517 net per week for 215 weeks and 4 days making a total of $111,968.
I allow the claimant loss of superannuation benefits in the amount of $12,316
(11% x $111,968).

Determination of damages for future economic loss

The claimant’s case is that as result of his injuries and disabilities, it is unlikely that he will be able to return to full-time work reasonably available to him until age 67.
I accept that the claimant’s intentions, but for the injury, were firstly to continue with the management of his café businesses, until retirement and secondly to continue to develop and expand his businesses in hospitality and other areas of commerce.
I accept Dr Dryson’s evidence that the claimant is only fit for work of a sedentary nature up to 20 hours per week until retirement age. I accept that the claimant may not be able to undertake even administrative tasks in 10-15 years’ time if his cervical spondylosis progresses, which is the natural history of cervical spondylosis.
Based on Dr Dryson’s evidence and other available evidence, I find it is more likely than not that the claimant will be restricted to part-time sedentary work until retirement and will probably face an early retirement. On that basis, I find that the claimant has been left with a residual earning capacity of 50% until age 60 and nil residual earning capacity thereafter.
In determining a reasonable sum to compensate the claimant’s financial loss that would place him as near as possible in the position that he would be in, but for the injury, I accept Furzer’s opinion that a fair assessment of that loss would be by way of a comparison with the net weekly earnings of a café/restaurant manager. According to Schedule C on page 28 of the report of Furzer, the average weekly earnings for a male in that role in Australia were $1,327 net per week as of 1 July 2021.
I accept the claimant’s position that I should apply vicissitudes of 20%.
The claimant also submits that he should receive a buffer on the basis that, but for the injury, he would have built up the assets and goodwill of the cafés managed by him.
I accept the claimant’s evidence and documentary evidence that the claimant had some success in turning around the Social Hideout Parramatta Café business. I note that he has been unable to replicate that success after the accident.
I find that his damages should include a buffer for the loss of his capacity to establish, build up and maintain a successful business. It is likely that any profits, for instance realised from the sale of business established and built up by the claimant, would more likely have been available in the longer rather than the shorter term. In the circumstances, I am prepared to allow, in addition to the wage loss calculated by Furzer, a buffer of $150,000.
Accordingly, I propose to allow the claimant future loss of earnings as follows:
(a)   $331,750 – calculated on 50% of $ 1,327 net per week to age 60
(663.50 x 625.0 x 0.80).
(b)   $136,639 – calculated on 100% of $1,327 net per week for 7 years from age 60, deferred for 18 years (1327 x 309.4 x 0.416 x 0.80).
(c)   $150,000 – additional buffer or cushion for loss of opportunity to earn additional income or profits from extra and additional hours of week and/or by way of loss of profits from loss of business opportunities.
(d)   $67,542 – future loss of superannuation contributions ($468,389 x 14.42%).

ASSESSMENT OF DAMAGES SUMMARY

Non-economic loss	$350,000.00
Past loss of earnings	$111,968
Past loss of superannuation	$12,316
Future loss of earnings	$618,389
Future loss of superannuation	$67,542.00
Fox v Wood damages	$15,631.03
TOTAL DAMAGES ASSESSED	$1,175,846.03

COSTS AND DISBURSEMENTS

I assess the claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 as summarised in the attached document.

CONCLUSION

Under sub-ss 7.36(3) and 7.36 (4) of the MAI Act, I specify the amount of damages for this claim as $1,175,846.03.
The insurer is to have credit for the sum of $78,155.13 under s 3.40(1)(b) of the MAI Act for the amount of statutory benefits already paid to the claimant.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $87,928.84 inclusive of GST.

[2022] NSWPIC 517

19 September 2022