Johal v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 434
•7 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Johal v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 434 |
| CLAIMANT: | Harpreet Johal |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 7 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for assessment of damages following motor vehicle accident; liability admitted by insurer; claimant suffered left shoulder fracture and rotator cuff tear; claimant residing in Australia at the time of the accident fast studying and with a student visa; claimant had not declared all of his income in income tax returns but sort to have this allowed anyway; Held – claimant not accepted as a witness of truth; claimant not entitled to an assessment of non-economic loss; claim for past and future economic loss only; claimant awarded $135,647 consisting of past economic loss of $62,932 and future economic loss of $72,715; insurer to have credit for weekly benefits paid or $54,542. |
| DETERMINATIONS MADE: | CERTIFICATE Determination 1. I assess the claimant’s claim as follows: (a) Past economic loss $62,932, and (b) Future economic loss $72,715. Total $135,647 2. The insurer is to have a credit of $54,542 for weekly benefits paid by it. |
STATEMENT OF REASONS
INTRODUCTION
The Accident
This claim arises out of a motor accident which occurred on 25 October 2021. The claimant was driving a truck and travelling at approximately 100km/h near Cootamundra when the insured vehicle failed to give way and a collision occurred. The claimant’s truck was forced off the road and finally stopped, partially submerged in a dam. The climate was able to be freed from the cabin of the truck by attending police.
Claimant’s Injuries
As a result of the accident, the claimant suffered the following injuries:
(a) left shoulder fracture dislocation with the reverse Hills Sachs lesion.
A closed reduction of the fracture dislocation was performed on 26 October 2021 by Dr Kao.
The claimant is right hand dominant.
Issues
While the claimant has suffered a non-threshold injury, he is not entitled to an assessment of non-economic loss.
The issue for me to determine is the extent of the claimant's past and future economic loss.
Medical Evidence
The claimants treating general practitioner (GP) was Dr Elhafi. His clinical notes show that he first treated the claimant after the accident, on 25 November 2021. At the time, the claimant evidenced limited movement and left shoulder pain.
From 6 February 2022 the claimant continued to see his GP for treatment. It was recorded that while he had left shoulder pain, his movement was improving. On 21 August 2022 the left shoulder pain was recorded to be easing and the claimant was “coping OK”. This was the last entry in the notes for the claimants GP treating his left shoulder injury.
After the accident, the claimant was Initially admitted to Cootamundra hospital. It was recommended that he attend another hospital for treatment and a friend drove him from Cootamundra hospital to Bankstown hospital where he then came under the care of Dr Kao who performed surgery on his left shoulder.
The claimant was discharged on 27 October 2021, with his left arm in a sling, to the care of his GP and for review with Dr Kao. At review on 8 December 2021, Dr Kao referred him for physiotherapy.
At the time of the subject injury, the claimant was working as a self-employed truck driver. He was working two contracts, including one with KFL Containers, for approximately 20 hours per week and a second contract with PB Carriers (the pre-injury employer), one to two days per week, up to 10 to 20 hours per week, In the income year prior to the accident the claimant also earned in excess of $50.000 as an Uber driver.
At the time of the accident, the claimant was residing in Australia by virtue of a student visa. This limited him to working no more than 20 hours per week as his primary role was that if a student, and not an employee.
He was off work from the time of the accident for 9 or 10 months before starting up again as a truck driver. However. the claimant said that he lost his job by termination on 15 February 2025, apparently being told he was too slow with the physical aspects of loading and unloading due to his symptoms. There is no documentary or corroborating evidence about this.
Dr Mitchell examined the claimant, on behalf of the insurer. He provided a report of 28 April 2025. Dr Mitchell said that the claimant had a reduced capacity for arduous physical tasks carried out with his non-dominant left hand, due to the sequelae of the subject injury and surgery undertaken.
Dr Mitchell said that the claimant had a then current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions were available, the claimant should be able to manage such work on a full-time basis:
(a) the claimant should manage all physical activities below mid chest height and close to the body trunk, particularly if repeated or sustained in nature, to avoid aggravating his symptoms.
(b) it would be appropriate that frequent manual handling actions should be limited to 5 kg in force with respect to lifting, carrying, pushing and pulling actions undertaken with the left hand alone, and
(c) however, the claimant has normal strength in the dominant right arm and hand.
Dr Kao provided a discharge report of 10 June 2022. He said:
“I reviewed Harpreet in my room today. It has been 7½ months since Harpreet had a fracture dislocation of his left shoulder. He was managed non-operatively initially in a sling and then with ongoing physiotherapy to strengthen his shoulder. He recently returned from India last month and he had been in India for a few months before that. He has been doing the physiotherapy strengthening exercises around his rotator cuff. He denies having any issue with his shoulder now.
Examination of his left shoulder shows a stable shoulder with no pain with resisted external rotation and internal rotation. Impingement test of the rotator cuff is negative. He is able to forward flex and abduct the shoulder without any discomfort.
I am happy with Harpreet’s progress. He should continue to do his strengthening exercises around his shoulder. This will include deltoid and rotator cuff muscles. I am happy for him to return to pre-injury duties in a couple of weeks’ time after he sees you in your room”.
Dr Elhafi provided a medical certificate dated 5 September 2022 recommending Mr Johal as fit for pre-injury duties.
The claimant does not rely on any medico legal report obtained by him. He does rely though, in part and selectively, on some of the opinions expressed by Dr Mitchell, the insurers medico legal expert.
Assessment
The claimant is not entitled to an assessment of non-economic loss.
The claimant has conceded that regarding his past income, he has rendered income tax returns which are not correct and underestimate his income. Notwithstanding this, the claimant submits that this does not necessarily disqualify him from recovering damages based on evidence of actual earnings – see Giorginis v Kastrati [1988] 49 SASR 371; Morvatjou v Moradkhani [2013] NSWCA 157.
The claimant came to Australia from India as a student in 2019. A term of his student visa was that he was not allowed to work for more than 20 hours per week.
The financial documentation produced by the claimant is confusing and inconsistent. What has been submitted to me by the claimant appears to be a gross overstatement of his income.
It has been submitted to me that I should not penalise the claimant for under reporting his income and to effectively reward him for undeclared income and possibly also for income that he should not have earned in excess of the allowances under his student visa. I do not know this latter aspect of his visa restrictions for certain as all the information is so unclear.
The claimant worked part time as a truck driver and part time as an Uber driver. Additionally, he was studying as a student although I am unsure how he could have worked at these jobs and also attend his classes. Again, a discrepancy in the “facts”
Another fact that troubled me in assessing the claimant as a witness of credit was his reference to joining a gym as part of his rehabilitation. He said in evidence that he would go to the gym but because of his shoulder injury, he could not, for example, lift weights. He was able though to use the treadmill but he said he could not use this to run and would only use it to walk. In other words, the claimant joined a gym, at certain expense, only to use a treadmill on which he walked. He could have done this outside, walking around the block for free. Once again, I am expected to accept the claimant at face value.
The claimant says that he earned certain income but this is not verified by the income tax returns he has lodged.
A summary of his notices of assessment follows:
(a) Year ending 30 June 2020 income of $4,519 – no tax;
(b) Year ending 30 June 2021 income of $40,622 less tax $4,260 balance $699.26 net per week (npw);
(c) Year ending 30 June 2022 income of $70,583 less tax $13,406 balance $57,177 gives $1,099 npw (which includes the date of the accident);
(d) Year ending 30 June 2023 income of $34,201 less tax $3,040 balance $31,161 gives $599.25 npw, and
(e) Year ending 30 June 2024 income of $23,856 less tax $1,074 balance $22,782 gives $438 npw.
It is from these figures that I should be able to assess the claimants past economic loss.
The parties have each provided accountant reports, which vary considerably in their outcome assessment.
I assume that the figures for the 2022 income tax year are inflated by statutory benefits noting that the claimant did not work, effectively, for 9-12 months.
As evidence of the difficulties assessing the economic loss claim, I am tasked to accept what the claimants expert accounting firm, PKF, has calculated for the 2021 year. As has been pointed out by the insurers expert accounting expert, part of the income claimed includes and amount for one payment of $2,505 but this amount has been incorrectly included 14 times over, during a 40 week period, incorrectly. The claimant has not refuted this error.
Past economic loss
Within the claimant’s submissions, a claim is made for past economic loss on the basis of a complete loss of income for 12 months. This claim cannot stand as submitted. In evidence, the claimant said that he was off work for 9 to 10 months. It is clear from the evidence of Dr Kao that the claimant's left arm was in a sling for six weeks. Thereafter he would have been incapacitated for several months.
In the claimant’s statement he said that he was off work for about a year completely, after the accident. As I said, in his evidence at the assessment conference the claimant said that he was off work for 9 to 10 months. Also, the claimant spent several months in India before returning to Australia, according to Dr Kao.
When the claimant arrived in Australia, he had a student visa. This limited him to 20 hours of work per week. As far as I am aware, that visa has not changed. The claimant did say in evidence that he had applied for a “485 visa” which as I understand it will give him more permanent residency. This visa was applied for only during the week of the assessment conference. The claimant though would still be currently limited to his student visa income restrictions.
In the claimant’s statement of 23 May 2025, he said that in October 2022, 12 months after the accident, he commenced work for Border Express using his own ABN. In other words, he was self-employed. He said that he worked three to four days per week earning about $1500 net per week. There is no documentary evidence of this, and the assessment notices do not indicate such a level of income.
Clearly, the claimant’s statement of 23 May 2025 is incorrect and misleading.
Additionally, in the claimant’s submissions, for all claims for economic loss, he claims superannuation and yet at all times, the claimant was self-employed or an independent contractor. The claim for superannuation cannot be substantiated and again, is misleading.
I cannot accept the evidence provided by the claimant about his income. It also appears to me that he was earning income in contravention of the limitations under his student visa.
Regarding the claimant stopping working for Border Express in February 2025, he said this was because he was told that he was too slow in performing his work. The claimant has provided no evidence about this and expects me to accept this at face value, notwithstanding other “facts” he has provided which are not correct. It is my understanding from the evidence which the claimant provided that he was able to drive from point A to point B without difficulty. That is, he says, without difficulty apart from experiencing pain in his left shoulder and difficulty sleeping. However, the actual work of pulling curtains and opening and closing truck gates was difficult because of his left shoulder limitations, he says.
In a report of Dr Kao of 10 June 2022, he said that at that time, on review, the claimant denied having any issues with his shoulder. Dr Kao said the shoulder was stable and with no pain. The claimant was able to forward flex and abduct his left shoulder without any discomfort. Dr Kao also referred to the fact that the claimant had recently returned from India, the month previously, having been there for a few months before that. As the claimant was out of Australia for two months during the time that he said he was off work for nine to ten months then he should not be allowed economic loss for that time.
The claimant’s GP certified on 5 September 2022 that the claimant was fit for pre-injury duties.
Past economic loss could be calculated from 25 October 2021 to 1 October 2022. The claimant commenced work as a truck driver in October 2022 with Border Express, he said that he was away in India for two months. On that basis I could allow an amount of $700.00 net per week, in round figures, for 40 weeks.
The insurer however has made total payments of $52,932. Of those payments, the insurer is prepared to allow a further $10,000 representing income tax payable and making a total allowance of $62,932.
The claimant has submitted that an allowance should be made of $222,900 plus superannuation at 11% at 24,519 dollars making a total of $247,419. The claimant also makes a claim for tax of $10,000
The insurer obtained a forensic accounting report from Mr. Lee, of Vincents Chartered Accountants of 13 June 2025. Mr. Lee assessed losses on the basis of several propositions but the insurer relies on the following assessment, with which I do not disagree:
(a) notional earnings of $45,000 per year before tax ($39,333 after tax)
(b) for the period 26 October 2021 to 30 June 2022, the claimant’s actual earnings amounted to $ 7,393 before tax (notional earnings of $30,690 before tax for the period = $27,274 after tax) = $27,274.00 less $ 7,393.00 = $19,916.00 loss
(c) for the period 1 July.2022 to 30 June 2023, the claimant’s actual earnings amounted to $ 24,554 before tax ($24,019 after tax) = $39,333.00 less
$24,019.00 = $15,314.00 loss
(d) for the period 1 July.2023 to 30 June 2024, the claimant’s actual earnings amounted to $ 21,631 before tax ($21,631.00 after tax) = $39,333.00 less $21,631.00 = $17,702.00 loss
The above gives a total loss of $52,932 for past economic loss. I accept this as an accurate assessment of the claimant’s calculation of past economic loss. This is because the claimant had visa limitations on the number of hours he could work and that impacted on is actual legal income. The amount is also in line with his declared income.
Mr Lee noted that for the period 1 July.2024 to 4 February 2025, the claimant’s actual earnings amounted to $47,959. Accordingly, Mr Lee was of the opinion that there was no loss of earnings for this period. That too is my finding.
As statutory benefits have been paid, the claimant makes a claim for income tax of $10,000. The insurer does not dispute this. I allow $10,000 for income tax on payments made.
The total of past economic loss allowed by me amounts to $52,932 plus $10,000 for tax giving a final figure of $62.932.
The insurer has paid weekly benefits in the amount of. $54,542 and submits entitlement to a credit for that amount. It is my finding that this is appropriate and the insurer should have a credit for this amount.
Future economic loss
The claimant came to Australia from India in 2019. He came for the purposes of furthering his studies. In India, he had already graduated with a degree in computer applications in 2012. He then worked in the loans sector at a bank in Punjab.
In Australia, between September 2019 and June 2021, the claimant undertook and completed a Diploma of Banking Services Management at the Institute of Business and Management Australia.
The claimant has also obtained a Certificate III in light vehicle mechanical technology, while studying in Australia.
It does not seem sensible to me that the claimant would come to Australia with a business/ computer degree, having several years experience in the banking industry and then obtain further business qualifications, reside in Australia and then expect that he would drive a track for the remainder of his working life.
The claimant would appear to have undertaken jobs as a truck driver and as an Uber driver to supplement his finances whilst studying in Australia.
The claimant has been certified as fit to work by both his treating orthopaedic surgeon,
Dr Kao and his GP, Dr Elhafi. Dr Mitchell, for the insurer placed some restrictions on his ability to work with shoulder or above shoulder levels of activities. The climate however is skilled in sedentary work and is not, on my assessment, restricted to a substantial extent to undertake this work. He did say at the assessment conference that he does not have adequate skills in English but while an interpreter was on hand, most questions were considered by him without the use of an interpreter and he responded, without the use of any interpreter.
The claimant, when questioned by me, indicated that he did not know if he would stay in Australia or return to India. Much of this I expect depends on the outcome of his application for approval as a permanent resident. He seemed ambivalent though about staying in Australia or returning to India.
The claimants claim for future economic loss has been put to me on the basis that the most appropriate assessment would be by way of a buffer and taking into account a loss of something in the order of $500 net per week until statutory retirement age. The claimant concedes that this amount is less have than the ongoing actual loss from driving work as an Uber driver. The claim is on the basis that the claimant would still have a first job but would be missing out on secondary income. The claimant said that he has a relatively newborn baby to care for and I would expect this would take up much of his spare time. I do not accept that the claimant would reasonably undertake or have the time to undertake work as an Uber driver which would render income of $500 per week.
The insurer submits that calculations of Mr. Lee for future economic loss should be accepted by me. This allowance is as follows:
Allow notional earnings of $45,000 per year before tax ($40,137 after tax) =
$768.91 after tax per week
Allow a reduction in earning capacity equal to 15% of his notional earning capacity, being $ 6,750 before tax = Adopted Residual Earnings $ 38,250 before tax ($34,940 after tax) = $669.34 after tax per week
Allow up to the age of retirement at 67 years, being 33.34 years
Allow 5% multiplier at 859.16
Less vicissitudes at 15%
$768.91 minus $669.34 = $99.57 after tax per week x 859.16 x 0.85 =
$72,715.00.
The claimant did suffer a major injury as a result of a serious impact and accident in which his truck was forced off the road and the truck ended up partially submerged in dam water. In many respects, he was lucky, if you can say that, that he only injured his left shoulder, which is his non dominant side.
The claimant was working in unskilled areas of work prior to the accident. As I said though, he had formal qualifications and would definitely be able to apply these qualifications in India which he already did before he came to Australia on a student visa. Also, subject to his hesitation or reticence concerning his ability to speak English, those qualifications and his experience working with them, could be applied in Australia.
The claimant might have difficulty obtaining sedentary work and maintaining this work, due to his language difficulties, for a limited number of years possibly. However, ultimately, I would expect that he would become proficient in understanding English and being understood when he speaks English.
There are a number of vicissitudes which could come into play such as the claimant not obtaining a permanent residency visa, the claimant wanting to return to India to live anyway, the claimant experiencing difficulties obtaining sedentary work over a number of years. Also, the claimant might want to supplement his income as either a truck driver or an Uber driver but not being able to do so due to limitations brought about by his shoulder injury. However, I would not regard this last limitation as a major consideration as he was able to drive a truck for over two years after the accident and following his recovery. A shoulder injury of the nature suffered by him will not limit him completely, as evidenced by the opinions of Dr Kao, Dr Elhafi and Dr Mitchell.
Regarding this work of a sedentary nature, it is likely that it would not be undertaken by the claimant by way of an enterprise as an independent contractor or while self-employed.
In Allianz Australia Insurance Ltd v Sprod (2012) 81 NSWLR 626, Barrett JJA, in the context of considerations for the award of a buffer, said:
“[26] The underlying principle is that the plaintiff should have a sum by way of damages for the difference between earning capacity as it would have been in the absence of the injury and the earning capacity as it is following the injury. Both elements involve uncertainty and conjecture and, therefore, require that assumptions be made, albeit assumptions shaped by the available evidence. The assumptions cover, among other things, remaining expectancy of working life, the impact of the injury on that expectation, the extent to which the ability to function will be curtailed and the earnings that work according to the reduced ability will produce, together with assumptions regarding discounted present value and investment returns and as to vicissitudes or adverse contingencies. Because of s 126(1), an assessor has a duty to form an opinion that the assumptions to be applied in relation to such matters going to future earning capacity "accord with the plaintiff's most likely future circumstances but for the injury".
[27] The duty under s 126(1) to be satisfied that the adopted assumptions accord with the most likely future circumstances but for the injury is supplemented by the s 126(3) duty to articulate the assumption on which the award is based. This, as has been said in this Court more than once, is to ensure transparency and, at the same time, to inject an element of rigor or method that may be overlooked or simply abandoned if the statutory system did not insist on the identification and articulation of the assumptions employed.”
Reference to section 126 is a reference to section 126 of the Motor Accident Compensation Act. Its equivalent under the Motor Accident Injuries Act is section 4.7 which says:
(1) 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 accord with the claimant's most likely future circumstances but for the injury.
(2) 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.
(3) 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.
The claimant appears to have earned income as a truck driver, as an uber driver, and as someone with economic qualifications which have helped him work in finance industry in India.
The claimants treating surgeon in his discharge report of 10 June 2022 said “Examination of his left shoulder shows a stable shoulder with no pain with resisted external rotation and internal rotation. Impingement test of the rotator cuff is negative. He is able to forward flex and abduct the shoulder without any discomfort.” Further, Dr Kao said that the claimant denied having any further issues with his shoulder. Dr Kao was reporting that the claimant had made a full recovery and yet the claimant would like me to accept that this is not the case.
On my assessment, the claimant was not a witness of credit. He has shown the he has deliberately underestimated his income, to lessen the amount of tax he has to pay, he has earned more income than allowed under his student visa, he makes a claim for loss of superannuation when he is self-employed, he says he joined a gym for his rehabilitation but only used the services for walking when he could walk anytime, anywhere for free and it was his shoulder that needed rehabilitation, not his legs.
The claimant will on my assessment, suffer some loss of income in the future, arising from his injuries. I do not accept though that it is to the extent that he has particularised.
The claimant submitted that his most likely future circumstance would have been to continue his truck and Uber driving work into the foreseeable future before perhaps deploying his Certificate III in light vehicle mechanical technology obtained in December 2024, or otherwise utilising his banking services qualifications. The claimant submits that this latter path is perhaps still open to him if he is able to improve is command of the English language.
This all pre-supposes that the claimant is restricted physically by his shoulder injury. The medical evidence is though to the effect that he has made a good, albeit not total recovery.
The claimant has submitted that his future economic loss should be calculated on the basis of a buffer, adopting an approximate loss of $500 per week. This is calculated as follows;
(a) Years to retirement age: 34.
(b) 5% multiplier: 865.9
(c) Vicissitudes: 15%
(d) $500 npw x 865.9 x 0.85 = $368,007.5
An amount of $350,000 is claimed for future economic loss by way of a buffer. I do not accept this as a true reflection of the claimant’s potential future economic loss. He has been medically certified as fit to work by several doctors and that evidence is not contradicted.
I accept the future economic loss submitted by the insurer. It is a realistic assessment of the claimant’s potential future loss, in my finding, noting the limited credit that I can attribute to the claimant and his claim. This is as follows and adopts the accountants calculations:
Allows notional earnings of $45,000 per year before tax ($40,137 after tax) =
$768.91 after tax per week
Allows a reduction in earning capacity equal to 15% of his notional earning capacity, being
$6,750 before tax = Adopted Residual Earnings $ 38,250 before tax ($34,940 after tax) = $669.34 after tax per week
Allows up to the age of retirement at 67 years, being 33.34 years
Allow 5% multiplier at 859.16
Less vicissitudes at 15%
$768.91 minus $669.34 = $99.57 after tax per week x 859.16 x 0.85 = $72,715.00.
Summary
I assess the claimants claim as follows:
(a) Past economic loss $62,932
(b) Future economic loss $72,715
Total $13,647
The insurer is to have a credit of $54,542 for weekly benefits paid by it.
Costs are awarded in favour of the claimant in accordance with Part 6 of the Motor Accident Injuries Regulation 2017.
0
2
0