Kouchekisheikhani v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kouchekisheikhani v Allianz Australia Insurance Limited [2023] NSWPIC 597
CLAIMANT:	Morteza Kouchekisheikhani
INSURER:	Allianz
MEMBER:	Stephen Boyd-Boland
DATE OF DECISION:	19 September 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; contributory negligence; conflicting versions of events; section 4.17; Turkmani v Visvalingam and T & X Company Pty Limited v Chivas referred to; claim for economic loss; no precise evidence of relevant earning; inconsistent evidence of earnings; consideration of case law on economic loss; Medlin v State Government Insurance Commission, IAG Ltd t/as NRMA Insurance v Damian Mares, Dal v Chol, and Allianz Australia Insurance Ltd v Kerr considered; section 126 of the Motor Accidents Compensation Act 1999 assumptions; section 4.7 of the Motor Accident Injuries Act 2017; Held – claimant’s damages are to be reduced by 40% on account of the claimant’s contributory negligence.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. On the issue of contributory negligence, the claimant’s damages are to be reduced by 40% on account of the claimant’s contributory negligence. 2. The amount of damages for the claim is $249,579.48. 3. The amount of the claimant’s costs in the matter is $36,618.75 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

The assessment conference took place on 24 October 2022 and 22 March 2023.
The parties sought a transcript of the assessment conference.
Following the assessment conference there were Directions as follows:
(a)    the insurer to provide written submissions within 21 days of the transcript being provided;
(b)    the claimant to provide written submissions within 14 days of the above, and
(c)    the insurer to provide submission in reply within 14 days of the above.
The provision of the transcript was complicated by the need to extract some unintended recordings. There was considerable delay in resolving the issues in relation to the transcript.
The claimant gave evidence and was questioned by counsel for the insurer.
Pastor Cyrus also gave evidence and was questioned by counsel for the claimant.
I am asked to assess the claimant's entitlement to damages arising out of injury sustained in a motor vehicle accident on 27 April 2019.
The insurer has admitted breach of duty of care and contributory negligence is alleged. The issue of contributory negligence is to be determined.
I am asked to assess damages in respect of the following:
(a)    non-economic loss;
(b)    past economic loss, and
(c)    future economic loss.
I am also asked to assess the claimant's entitlement to costs. The claimant did not tender any evidence in relation to costs, they were lodged on the Portal but not included in the material before me at the assessment conference.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.
The claimant provided a “Tender bundle” identified as AD-12 consisting of 447 pages.
The insurer provided a “Tender bundle” identified as AD-9 consisting of 432 pages.
The insurer provided the statement of Pastor Cyrus.

Submissions

The claimant provided its final submissions dated 7 June 2023. At paragraph 107 these adopted the “latest” schedule of Damages” which I understood to be the version included in claimant’s tender bundle AD-12 at page 441 labelled “Page 440 of 445”.
The insurer provided written submissions dated 2 May 2023 and written submissions in reply dated 23 June 2023.

Reasons

The claimant’s evidence generally

The credibility of the claimant was an issue.
The insurer took issue with the evidence of the claimant generally but specifically in relation to two matters, the circumstances of the accident and the claimant’s entitlement to economic loss including an assessment of the invoices and the evidence in relation to his earnings. In this context the insurer submitted that the claimant is not as disabled as he claims and his evidence as to the nature and extent of his disabilities should be treated with caution.
The claimant’s submission accepted that the claimant was a difficult and sometime non-responsive witness, but this could not support the conclusion that he was being deliberately dishonest or evasive. It was contended that answers which appeared to be rather rambling and non-responsive were not the product of a deceptive or dishonest mind, but rather a man who has suffered significant psychiatric and physical injuries. In addition, allowances needed to be made for the claimant’s inability to speak the English language and problems with interpreting answers to questions in cross-examinations and numerous misunderstandings.
The claimant’s evidence was that his earlier statements were true and correct.

Work history

The submissions of the claimant include that he was working as a painter since 2015. AD12 page 6 of 445 at paragraph 8.6.
In a number of the documents provided, the claimant makes an assertion about working as a painter since 2015 and/or 2016.
In his statement dated 21 April 2022 the claimant stated that “From 2016, I used to make approximately $6,100 gross per month”. AD12 page 253 of 445 at paragraph 77.
The claimant was questioned about his work history. It was confirmed he got his ABN on
6 August 2018. The claimant responded “I did work for a little bit of cash beforehand because I used to do sport and I used to work a little bit here and there. But after I got my ABN then I started working properly”. T 8/9.
The claimant had not lodged any Tax Returns for the pre-accident years.
His evidence at the assessment conference in relation to his work history was not consistent with a number of the documents provided.
The evidence from the claimant was that prior to 6 August 2018 he was not working “properly” but doing a little bit here and there.
His evidence at the assessment conference was not consistent with his statement dated
21 April 2022.

The claimant’s earnings

The insurer notes the claimant made an application for personal injury benefits, that application asserted that the claimant’s monthly earnings at the time of the accident were $6,160 earned from his employment as a painter by a company called MHM Painting & Decorating.
The application confirms that. The employment is described as full-time. AD9 page 11 of 413.
The submissions of the claimant include that he was working as a painter since 2015 and he was working eight hours a day six days a week. AD12 page 6 of 445 at paragraph 8.8.
In his statement dated 21 April 2022 the claimant clarified in paragraph 77 that he used to make “approximately $6,100 gross per month,” which “converts to about $1,200 nett per week” working as a painting trade worker with the company MHM Painting & Decorating, a company he established himself. Again, it was asserted he worked “6 days a week”. AD12 page 253 of 445 at paragraph 8.6.
The claimant’s assessment of the questioning (at paragraph 40) was that he confirmed that he was employed full-time by MHM Painting and Decorating, but then clarified that it was not full-time, and he would not have constant jobs. The claimant had an ABN number and he worked with different companies.
The claimant’s submissions (paragraph 39) note there was a great deal of questions asked of the claimant about whether or not he was earning $6,100 gross per month and that the claimant maintained ‘It was even more than that, not less than that’ T30/6.
In responding to a question in relation to the invoices the claimant stated “… my earning was around $3,000 to $4,000 …”. T 21/5.
This statement does contain some uncertainty about exactly what was being described, whether it was a gross or net amount. On the claimant’s own assessment of the net income at $1,200 per week, this would have been $4,800 net per week.
The evidence included evidence that:
(a)    he was not earning $6,100 gross per month and it was even more than that, not less than that;
(b)    he was earning “approximately” $6,100 gross per month;
(c)    possibly it was around $3,000 to $4,000 gross per month; or
(d)    possibly it was around $3,000 to $4,000 net per month.
Given the significant variations in the estimates provided it was not possible to accept any of them as being an accurate or reliable assessment of the earnings.

The invoices

On 14 May 2019 the claimant’s solicitors provided four invoices to the insurer:
(a)    a handwritten invoice dated 14 November 2018 in the sum of $3,320.90;
(b)    a typed invoice dated 4 December 2018 in the sum of $3,320.90;
(c)    a handwritten invoice dated 17 April 2019 in the sum of $6,160, and
(d)    a typed invoice dated 17 April 2019 in the sum of $6,160.
Subsequently, two additional invoices were provided:
(a) an invoice dated 2 May 2019 in the sum of $840, and
(b) an invoice dated 25 July 2019 in the sum of $56,800.
The invoice dated 14 November 2018 described a “quantity of 11”, a “price” of “$301.90” and the period of work between 19 November 2018 to 3 December 2018, being 11 days.
The invoice dated 4 December 2018 described a “quantity of 11”, a “price” of “$301.90” and the period of work between 19 November 2018 to 3 December 2018, being 11 days.
The invoice dated 17 April 2019 described a “quantity of 22”, a “price” of “$280” and the period of work between 18 March 2019 to 16 April 2019 being 22 days.
The invoice dated 17 April 2019 described a “quantity of 22”, a “price” of “$280” and the period of work between 18 March 2019 to 16 April 2019 being 22 days.
In the period from 19 November 2018 to 3 December 2018, there are 11 weekdays (days not Saturday or Sunday).
In the period from 18 March 2019 to 16 April 2019, there are 22 weekdays (days not Saturday or Sunday).
The figure of $3,320.98 is the balance of the bank account after the addition of the amount brought forward. The bank statement ends 7 December 2018.
The invoices in the amount of $3,320.90 state that the amount claimed is for 11 days work at $301.90 per day.
The invoices in the amount of $6,160 state that the amount claimed is at rate of $280 per day.
Invoice Number 5680 an invoice dated 2 May 2019 in the sum of $840 and describing a “quantity of 3”, a “price” of “$280” and noting work on “18/04/2019 – 24/04 – 26/04/2019”.
Invoice Number 5679 an invoice dated 25 July 2019 in the sum of $56,800 and describing a “quantity of 138”, a “price” of $411.59” and noting work from 6 August 2018 to

26 October 2018 and 5 December 2018 to 15 March 2019.
The insurer noted that there is no evidence of the amount of $56,800 being deposited into the claimant’s bank accounts. The claimant says that he was paid in cash.
The insurer contends that this is implausible.
The issues in relation to these invoices were directly raised with the claimant, they had been raised in the Merit Review Certificate dated 16 March 2020 and were the subject of many questions at the assessment conference.
The invoices that were shown to him in cross-examination were prepared by the company that has written the invoice and he enlisted the assistance of a friend to help him write the invoices due to his literacy.

The invoices of 14 November 2018 and 4 December 2018

The claimant’s submissions did not address the question in relation to these invoices in any detail.
The claimant did not provide any adequate explanation of how the invoices dated

14 November 2018 and 4 December 2018 had been prepared using the figure of $3,320.98 being the balance of the bank account in the bank statement that ends 7 December 2018.
In my view, the use of the figure of $3,320.98 was either an error and a coincidence or a result of preparing the invoice after the bank statement had been provided or the bank balance accessed and using that figure .
The claimant’s evidence was to the effect that he sent these to his friend and that his friend made an error.
At times he said the documentation was prepared in Port Macquarie, at times he said it was prepared by the company and at time he said it was prepared by his friend.
Specifically in relation to the figure of $3,320.98, his bank balance in the bank statement, the claimant was asked if that was a figure only the claimant could have known, and he accepted that it was.
The claimant was questioned at length in relation to these invoices.
At times he seemed to accept that they were prepared after the accident.
Having accepted that the figure of $3,320.98 in the bank statement was a figure only he would have known, his explanation of this being an error made by either the company or his friend was implausible.
In my view it was most likely that it was as a result of preparing the invoice after he had access to details of the balance of his account and using the figure for the balance.
In the event that the figure used as the total in the invoice was incorrect, the basis of the calculation of that amount, work at $301.90 per day, was also not accurate.
The claimant’s inability to explain these invoices were not “rambling and non-responsive answers”. It was not the claimant’s inability to speak the English language or problems with interpreting answers to questions in cross-examinations and numerous misunderstandings that could explain this.
The claimant had provided these invoices to advance his case and the objective contemporaneous documents suggest they are not an accurate reflection of the actual invoiced amount or the basis upon which it was calculated.
In my view the claimant’s evidence in response to these invoices was at best very evasive.
The conclusion I reached was that the invoices of 14 November 2018 and 4 December 2018 had been prepared after the work had been done and after the claimant had access to his bank statement and/or bank balance.
I do not accept that either of the invoices of 14 November 2018 and 4 December 2018 were legitimate invoices and accurately reflected the total invoiced amount or the daily rate for the work.

Other invoices

Having expressed the views above, consideration of the other invoices also requires some scrutiny.

The invoice of 25 July 2019

The invoice is in the sum of $56,000 and the amount claimed is for 138 day’s work at $411.59 per day.
The rate is different to any other rate charged by the claimant. Using the daily rate and the number of days does NOT result in the amount set out as the total in the invoice.
The claimant was questioned about this invoice.
The claimant said:
“… I was working with the big company … because I was working with four or five other people … he was giving them to me by cash … I didn’t know that I was going to have an accident … we would have a lot of difficulties just to write down the timing and the dates et cetera … so he just said at the end of the year when we go for the tax return, we’ll go together and we’ll do the tax return.”
Moments later when asked the name of this company, the claimant asserted that he did not remember.
The claimant was questioned about the rate of $411.59 per day.
I did not find the claimant’s response to these questions to adequately explain the invoice.
I was not satisfied that this was a genuine business invoice, I could not be satisfied that the claimant had been paid the total amount set out in the invoice, or that the invoice accurately reflects the period for which work had been undertaken, the daily rate for that work or the number of days for the work.
Again, the claimant had provided these invoices to advance his case and the objective contemporaneous documents create a degree of uncertainty about the extent to which they were genuine.
The claimant did little in his evidence to resolve this uncertainty.
The claimant did little in his evidence to explain how one single very large invoice came into existence, why it was for cash and why it was not banked into his account.
Despite the uncertainties in relation to invoices provided by the claimant, it was clear that the claimant was undertaking work as a painter and was earning income.
The invoice dated 17 April 2019 appears to be the most reliable. The method of calculation appears correct, and the amount corresponds with a payment to the bank account.
This invoice made reference to a daily rate of about $280, this appeared to be a gross amount and the work appears to be five days a week.
The invoice dated 2 May 2019 appears to be the next most reliable. Again, the method of calculation appears correct, and the amount corresponds with a payment to the bank account. This invoice made reference to a daily rate of about $280, this appeared to be a gross amount and the work appears to be three day’s work in a period of nine days. Working on 18 April 2019, 24 April 2019 and 26 April 2019, in that period.
This was the Easter period and reflects not working on Good Friday, Saturday and Sunday and Easter Monday, not working on Tuesday 23 April 2019 and not working on Anzac Day.
The claimant’s evidence was that the “work” was not full-time and there were periods where there was no work.
Using a daily rate of $280 and assuming work for five and a half days a week for four week provides a total of $6,160.
That is the same as the monthly figure in the claimant’s application.
There is inconsistency in terms of the estimates of the income on a monthly basis to such an extent that no one estimate can be relied upon.
The evidence is to the effect that the claimant was not an employee and was not employed full-time. In that context is it difficult to undertake the assessment by looking at a particular “day rate”.
The evidence was that the claimant did not get paid any amount for superannuation nor make any allowance for superannuation.
The claimant’s evidence was that from 6 August 2018 he “… started working properly …”.
However, based on the invoices provided the first invoice was the invoice dated
14 November 2018 and relating to the period of work between 19 November 2018 to
3 December 2018, being 11 days.
The invoices, excluding the invoice of 25 July 2019, assert that the claimant worked:
(a)    in the period between 19 November 2018 to 3 December 2018 for 11 days;
(b)    in the period between 18 March 2019 to 16 April 2019 for 22 days, and
(c)    in the period between 18 April 2019 and 26 April 2019 work for 3 days on 18 April, 24 April and 26 April 2019.
The insurer set out a summary of the payments made to the claimant’s bank account.
The total payments received in the Bank were in the sum of $14,700.
The Tax Return included total sales of $66,150. AD12 page 237 of 445.
This amount of total sales in the Tax Return is less than the total amount of the invoices relied upon by the claimant.
As the claimant’s Tax Return was not consistent with the evidence he gave, I could not accept that was a true reflection of his earnings.

The circumstances of the accident

The claimant’s submissions (at paragraph 43) referred to the evidence given by the claimant at the hearing:
“I was actually standing behind a parked car. I was looking – I was looking left and right to see where she is coming, my girlfriend. You know, an old woman and an old woman were sitting in the car. The woman on the passenger side was holding a piece of paper. When I turned back to have a look I got hit by a car. You know – you know, when I was standing with my bags next to me waiting, the car hit me and the mirror hit my hand, and the – and the tyre went over my foot. You know, I fall down. The old man and the old lady came out. He was angry at her, probably saying, “Why did you” – “Why did you both me? Why did you both me?” And then I was trying to get up, and I couldn’t. You know, behind me – you know, behind me there is a pharmacy, if you can see”
The claimant’s assessment was that the insurer advanced the contributory negligence argument on four grounds:
(a)    the insured driver was travelling at a very low speed;
(b)    the claimant was not keeping a proper lookout;
(c)    the claimant was distracted as he was talking on his mobile phone, and
(d)    the claimant proceeded to walk into the line of traffic.

The evidence of Pastor Emmanuel Cyrus

Pastor Emmanuel Cyrus provided an unsigned statement. He made a number of handwritten amendments to the statement. For some time during the assessment conference there was uncertainty about whether Pastor Emmanuel Cyrus would give evidence on camera.
The submission of the claimant was that Pastor Cyrus was “… an erratic, evasive and dishonest witness… it took him three, possibly more times to provide a statement about a series of events that were relatively straightforward …”.
The claimant’s assessment was that this version was “entirely inconsistent with the version given by the driver who did not make reference to the fact that the man was ever running”.
Pastor Emmanuel Cyrus was clearly a difficult witness, it was difficult to have him settle on a written statement, and for a period of time there was real uncertainty about whether he would give evidence on camera because of his perception of concerns for his safety. Much of this difficulty was not to the benefit of the Insurer.
I did not form the view that Pastor Cyrus was “an erratic, evasive and dishonest witness”. One of the arguments advanced by the solicitors for the claimant was that Pastor Cyrus intent on preventing the claimant from recovering damages but this was not consistent with his reluctance to give evidence.
Pastor Emmanuel Cyrus did have a perception of concerns for his safety, whether these were reasonable or not he maintained these concerns, as a consequence he was reluctant to give evidence, despite his concerns he did give evidence.

The insured driver was travelling at a very low speed

That the insured driver was travelling at a very low speed, was consistent with all of the evidence and accepted by both the claimant and the insurer.

The claimant was not keeping a property lookout, the claimant was distracted as he was talking on his mobile phone and the claimant proceeded to walk into the line of traffic

The claimant’s evidence set out above is to the effect that he was “looking left and right” but he then limited this to “to see where she is coming, my girlfriend”. Related to this issue was the circumstances of the contact with the vehicle.
Grazia Locchi asserted that the claimant “didn’t look, to us just crossed in front of us” [8] and that he “had like a shopping bag in his hands … he was looking at the other side, he was not looking at us when he came on top of us” [9].
A similar version is set out in [22].
The statement from Grazia Locchi also includes reference to Pastor Cyrus.
The claimant noted the driver made a statement to an investigator on 29 April 2021.
There was an unsigned statement from the Driver, Giannetto Ena, that includes reference to Grazia Locchi asserting that the claimant was talking on the phone. This is not included in the statement of Grazia Locchi.
Giannetto Ena confirms he was looking for a car park at the time of the incident. The statement included “this man must have walked from the arcade … The first I knew this man was there, when I heard the noise.”
Giannetto Ena said “the first I knew this man was there when I heard the noise”. I accept that the most likely interpretation is that Giannetto Ena did not see the claimant before the collision.
I preferred the evidence of Grazia Locchi to that of the claimant. I accepted the evidence from Grazia Locchi to the effect that the claimant:
(a)    “didn’t look”;
(b)    “… just crossed in front of us”, and
(c)    “had like a shopping bag in his hands … he was looking at the other side, he was not looking at us when he came on top of us”.
To the extent that the evidence of the claimant was inconsistent with the evidence of Grazia Locchi, I prefer the evidence of Grazia Locchi.
Having considered the available evidence in my view the accounts provided by Grazia Locchi and Pastor Cyrus are more consistent than the evidence of the claimant.
I accept that the claimant was not keeping a proper look out and that the claimant did not look in the direction of the vehicle before crossing.
Again, Giannetto Ena said “the first I knew this man was there when I heard the noise”. I accept that the most likely interpretation is that Giannetto Ena did not see the claimant before the collision. I accept that is evidence to the effect that Giannetto Ena was not keeping a proper lookout.
Pastor Cyrus gave evidence that the claimant was talking on the phone. T 56 at 1.
Pastor Cyrus was asked numerous questions, he was a difficult witness but repeatedly confirmed the version of events he had included in his statement and confirmed the claimant was talking on the phone.
Having accepted the evidence of Grazia Locchi I accept that the claimant proceeding to walk into the line of traffic.
I do not accept that the claimant was stationary at the time of the accident.
I do not accept that the insured driver drove into the claimant who was stationary at the time of the accident.
The evidence is less certain about how quickly the claimant was moving.
I accept that the claimant was not keeping a proper look out and moved into the path of the vehicle.
I accept that the claimant was not keeping a proper look out immediately prior to the accident and moved into the path of the vehicle.
I accept that the Driver, Giannetto Ena was not keeping a proper look out immediately prior to the accident. Despite travelling slowly, he did not observe the claimant and was not able to take steps to avoid the collision.

Contributory negligence

Section 4.17 of the Motor Accident Injuries Act 2017 (MAI Act) requires the Member to reduce damages recoverable in respect of the accident by such percentage as is considered just and equitable in the circumstances of the case.
Common law and enacted law as to contributory negligence apply.
The insurer referred to Turkmani v Visvalingam [2009] NSWCA 211 and T & X Company Pty Limited v Chivas [2014] NSWCA 235. T & X Company Pty Limited v Chivas involved a pedestrian who ran out onto Market St in the city into the path of an oncoming taxicab. The majority of the New South Wales Court of Appeal overturned the Trial Judge’s assessment of 40% contributory negligence, reassessing contributory negligence at 75%.
The insurer submitted an appropriate assessment of contributory negligence is at least 60%.
The claimant considered that the version of events maintained by the claimant should be accepted and that in terms of the reduction for contributory negligence, having regard to all the factors referred to being the facts of this case as opposed to irrelevant facts, must be zero.
All of the parties accepted that the insured driver was travelling at a very low speed. For the reasons set out above I found that the claimant was not keeping a property lookout, the claimant was distracted as he was talking on his mobile phone, and the claimant proceeded to walk into the line of traffic.
I also found that the insured driver was travelling at a very low speed and did not see the claimant before the claimant collided with his vehicle. The insured driver also failed to keep a proper lookout.
Having made these findings, I was of the view that in terms of the relative responsibility between the insured driver and the claimant that the insured driver was more at fault than the claimant. The fault of the claimant was significant.
Having reached the factual conclusions above, I consider that the appropriate reduction for contributory negligence as is just and equitable in the circumstances of the case is 40%.

Post-accident medical treatment

The claimant was admitted to Westmead Hospital where he was discharged the following day. The discharge transfer documents note that the majority of the claimant’s pain was in the left ankle, right upper limb and lower lumbar spine.
An MRI scan of the lumbar spine taken on 10 July 2019 revealed a small annular tear with a right midline paracentral disc bulge at L5/S1 “that requires clinical correlation”.
The claimant was treated by Dr Khong, neurosurgeon, who reported on 13 September 2019 that the claimant continued to complain of severe and incapacitating low back pain. The claimant told the doctor he had to stay at home all the time taking medications and when he went out, he had to constantly lie down. He continued to complain of debilitating back pain, advising Dr Khong on 10 September 2021 that he could not sit for more than 5 minutes before he had to lie down. Dr Khong recommended spinal fusion, which was approved by the insurer, but the claimant has decided not to proceed with that surgery, despite the debilitating pain.
On 22 April 2020, Dr Shannon Paisley provided a Certificate concluding that the acute stress disorder was not a minor injury for the purposes of the Act and diagnosed a major depressive disorder. The doctor found no evidence of any pre-existing underlying psychiatric disorder or non-accident-related factors that may have contributed to the condition.
Dr Paisley noted that the claimant had not received any specific treatment for his psychological symptoms and had not been referred to a psychologist nor prescribed any psychiatric medication.
Dr Gothelf, orthopaedic surgeon, examined the claimant on behalf of the insurer and provided a report dated 22 June 2021. Dr Gothelf considered the investigations that had been undertaken including the radiology. He conducted a physical examination on the claimant and confirmed the injuries as asserted by the claimant. He confirmed that there was no pre-existing condition in the claimant’s current situation. He also accepted that proposed spinal surgery is an accepted procedure having regard to the pathology.
Dr Gothelf accepted that the claimant had some residual capacity to undertake work. He considered it to be reasonable that the claimant’s incapacity was due to persistent lumbar spinal symptoms. Dr Gothelf concluded that the claimant would have an ongoing incapacity in respect of pre-injury duties but had capacity only for light duties with restrictions and had the ability for alternative work. Dr Gothelf was of the view that the claimant’s current incapacity will continue indefinitely unless the claimant proceeds with further surgical treatment.
Dr Whetton, consultant psychiatrist, examined the claimant on behalf of the insurer and provided a report dated 17 June 2021. Dr Whetton diagnosed the claimant as suffering from post-traumatic stress disorder. Dr Whetton noted that in mid 2020 the claimant had undergone treatment with a psychiatrist and also a psychologist.
Dr Whetton concluded that the claimant suffers from a major depressive disorder and post-traumatic stress disorder. He found that the claimant’s whole person impairment was 15%.
Dr Bertucen, consultant psychiatrist, provided a report to the claimant’s solicitors on

8 September 2020. Dr Bertucen diagnosed the claimant as suffering from chronic adjustment disorder with features of depressed mood and anxiety.
Dr Bertucen considered the prognosis to be dependent on a number of factors including the reluctance/refusal to consider surgery and the potential benefit of aggressive psychiatric therapy. Dr Bertucen was of the view that the claimant had the capacity to undertake work in non-manual occupations suggesting he could work 25 to 30 hours a week as an Uber Driver.
Dr Eric Lim provided a report dated 12 October 2022, having accepted the claimant’s assertions and concluded that he was unfit for work and concluded “I do not accept there to be any work capacity at all now or in the future”.
The view of Dr Lim is inconsistent with all of the other medical opinions, it involves a complete acceptance of the claimant.
The insurer notes that the claimant continued to complain of severe and incapacitating low back pain. The claimant told the doctor he had to stay at home all the time taking medications and when he went out, he had to constantly lie down. He continued to complain of debilitating back pain, advising Dr Khong on 10 September 2021 that he could not sit for more than 5 minutes before he had to lie down.
Despite the claimant’s alleged inability to sit for more than around 5 minutes before he has to lie down, the claimant flew to Melbourne either in late 2020 or early 2021. The claimant gave evidence that he in fact travelled to Melbourne twice but was unable to recall precisely when or for how long. The claimant’s capacity to sit on an aeroplane for over an hour on a trip to Melbourne is inconsistent with his alleged complaints to the doctors.
There is not a great deal of conflict in relation to the medical evidence.
In relation to the psychological or psychiatric injuries Dr Shannon Paisley provided a Certificate concluding that the acute stress disorder was not a minor injury for the purposes of the Act and diagnosed a major depressive disorder.
In relation to the physical injuries an MRI scan of the lumbar spine taken on 10 July 2019 revealed a small annular tear with a right midline paracentral disc bulge at L5/S1 “that requires clinical correlation”.
Dr Khong recommended spinal fusion, which was approved by the insurer, but the claimant has decided not to proceed with that surgery.
Dr Gothelf accepted the symptoms reported by the claimant but still found he had capacity for light duties with restrictions.

Non-economic loss

The claimant submitted that in relation to non-economic loss the sum that has been sought is $350,000. That is based upon a number of features in this case. Firstly, the incontrovertible critical nature of the injuries and disabilities. Secondly, the claimant is a very young man and has many years of pain and suffering that he will have to endure into the future. There is also a strong probability of future surgical intervention supported by the insurer’s orthopaedic surgeon who it qualified.
The insure suggested a figure of $150,000.
There is not a great deal of conflict in relation to the medical evidence.
In my view the difficulty in relation to all of the medical evidence is that there is a significant difficulty with the history provided by the claimant.
It is also significant to note that the history recorded by all of the doctors is based upon, in part, the version of events provided to them by the claimant. As is apparent from other aspects of these reasons, in my view, there is a significant difficulty accepting much of what the claimant has said.
In relation to the psychological or psychiatric injuries Dr Shannon Paisley accepted that the acute stress disorder was not a minor injury for the purposes of the Act and diagnosed a major depressive disorder.
In relation to the physical injuries an MRI scan of the lumbar spine taken on 10 July 2019 revealed a small annular tear with a right midline paracentral disc bulge at L5/S1.
Much of the medical evidence is reliant upon the history of symptoms reported by the claimant.
Dr Khong recommended spinal fusion, which was approved by the insurer, but the claimant has decided not to proceed with that surgery.
Dr Gothelf accepted the symptoms reported by the claimant but still found he had capacity for light duties with restrictions.
It is then necessary to consider that medical evidence in the context of the evidence of the claimant.
The claimant’s evidence was that:
(a)    “… 24 hours a day I had a pain ranked 5… I have to go swimming and yoga almost every single day … I can’t do anything else … I can’t even sit on my bottom … I am lying down at home 24 hours a day…”. T 11 at 27.
(b)    “for the past three years my whole life is being just a bearer of the pain. … I am not living, I am only alive”. T 13 at 15.
(c)     “I can’t sit down … the pain is quite unbearable. And for the past three years because of the hip bone pain I have to lie down all the time at home … I constantly have to lie down …”. T18 at 26.
Counsel for the insurer asked the claimant if the comment that you were “lying down at home 24 hours a day” was a gross exaggeration, the claimant responded, “not really because you don’t know the amount of pain that I go through to be honest”. T 44 at 28.
The claimant then conceded he could drive a car and could do so for a maximum of one hour a day.
The claimant then conceded that he had travelled to Melbourne twice.
The claimant then conceded that he had travelled to Melbourne by plane sitting for 1 hour and 15 minutes. He then suggested that he was walking and sitting down.
The claimant accepted he had told doctors that he was unable to sit for more than between 5 to 10 minutes.
Counsel for the insurer suggested to the claimant he had no difficulty standing for extended periods and the claimant maintained that he did.
The claimant was asked if he had declined surgery he responded “Not really” before expanding his answer.
The claimant presented his situation as being quite extreme and his limitations as severe.
The presentation advanced by the claimant was not consistent with him being able to travel to Melbourne.
When asked about the travel to Melbourne he conceded that he had done it twice. He did not report that the travel to Melbourne had caused him any significant complications or pain. To the contrary after having made the first journey to Melbourne one he had no apparent reluctance to travel there again.
Whilst the claimant did make some concessions, he had a tendency to do so and then in the next answer or part of an answer to “walk back” the concession he had just made.
The assessments made by the medical professionals need to be considered in the context of the extent of the inconsistency between the situation presented by the claimant and the concessions he made when questioned.
I accepted the opinion of Dr Shannon Paisley that the acute stress disorder was not a minor injury for the purposes of the Act and accepted the diagnosis of a major depressive disorder.
Dr Bertucen considered various factors could affect the prognosis.
The ongoing impact of the psychological and/or psychiatric injuries was difficult to assess with great certainty given the difficulties in accepting the evidence of the claimant.
I accept that an MRI scan of the lumbar spine taken on 10 July 2019 revealed a small annular tear with a right midline paracentral disc bulge at L5/S1 and that Dr Khong recommended spinal fusion, which was approved by the insurer, but not proceed with.
The medical opinions contain differing views as to the extent of the claimant’s incapacity. These differing medical opinions appear to be based on an acceptance of the claimant’s contentions.
Again, the impact of the physical injuries following the accident and on an ongoing basis was difficult to assess with great certainty given the difficulties in accepting the evidence of the claimant.
I formed the view that an allowance for non-economic loss in the sum of $175,000 was appropriate.

Economic loss

In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 where the Court by a majority of Deane, Dawson, Toohey, Gaudron and McHugh JJ stated the principle in the following terms:
“2. A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct, but related requirements are satisfied. The first ... is ... that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second ... is (that) ‘the diminution of ... earning capacity is or may be productive of financial loss’ (referring to Graham v. Baker [1961] HCA 48).”
In IAG Ltd t/as NRMA Insurance v Damian Mares[2016] NSWSC 1792, Hall J said this with respect to the correct assessment of future economic loss:
“(a) s 126 does not prevent the award of a cushion or buffer for future economic loss [para 68];
(b) the following formulation, which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61, applies [para 69]:
(1) Assess the “most likely” of the possible future economic circumstances facing the Claimant but for the accident (including type of employment, duration of employment and remuneration);
(2) Assess the Claimant’s economic prospects as a consequence of the accident;
(3) Compensate the Claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;
(4) Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the Claimant may not have achieved (1) even had the accident not occurred;
(5) Include a statement of the assumptions made as the Claimant’s most likely future circumstances and the appropriate percentage adjustment as to the above formulation see also Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].”

In Dal v Chol[2018] NSWCA 219, White JA said [at 24]:
“... Indeed, an award for future economic loss based on an assessment of the difference between the respondent’s likely earnings as a qualified motor mechanic and his actual earnings at the time of trial ($217 per week) applied to his likely working life, discounted for vicissitudes and applying the five per cent discount rate to calculate the net present value of the loss over that period, would have been unexceptionable.”
In Allianz Australia Insurance Ltd v Kerr [2012] 83 NSWCA 13 Basten JA stated at [24]:
“The applicant's submissions focused on the language of s 126, but identification of the specific non-conformity relied upon would have illustrated the insufficiency of that approach. Section 126 does not purport to codify legal principles relevant to assessment of loss of earning capacity. It does not identify factors to be taken into account in making an assessment. Nor does it appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which ‘is or may be productive of financial loss’: Graham v Baker[1961] HCA 48; 106 CLR 340 at 347; State of New South Wales v Moss[2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon JA); State of New South Wales (NSW Police) v Nominal Defendant[2009] NSWCA 225 at [86] (Beazley JA; Allsop P and Macfarlan JA agreeing). Income earned prior to the accident may well be the best evidential basis to assess the earning capacity of the Claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned. Income earned between the accident and the trial may be (but often is not) a good indicator of current capacity. The latter may be capable of extrapolation into the future, but it will usually be necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future.”
His Honour continued at [26]:
“In Malec v J C Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, three members of the Court (Deane, Gaudron and McHugh JJ) referred to the exercise in respect of hypothetical events, stating that ‘the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability’: at 643. It has been submitted (though not determined) that s 126 replicates that approach: State of New South Wales (NSW Police) at [88]. If so, it appears to disregard the remarks of Brennan and Dawson JJ at 640:
‘Although we agree with the general thrust of the reasoning on this point in the judgment of Deane, Gaudron and McHugh JJ, we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation’."
His Honour then summarised the comprehensive review of the principles to be found in this area quoting from Heydon JA in Moss.
His Honour also reproduced the assumptions about future earning capacity at [31] and other events as noted in Nominal Defendant v Livaja [2011] NSWCA 121 at [41]:
“…
S 126 of MACA
S 126 of MACA provides:
1) A court cannot make an award of damages for future economic loss unless the Claimant first satisfies the court 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) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
These cases all deal with the prior legislation, for an award of damages to be made s 4.7 of the MAI Act must be satisfied. The legislation is in similar term to the prior legislation. I accept, that s 4.7 does not prevent a buffer being awarded for future economic loss in appropriate cases: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13. Where a buffer is awarded, the adjustment referred to in s 4.7(2) is nil.
A combination of sub-ss 4.7(1) and (3) require the identification and statement of the assumptions about future earning capacity or other events on which the award is based. Matters to be taken into account commonly include:
(a)      identification of the skills, training and experience of the injured person, as at the date of the accident;
(b)      the work he was undertaking immediately prior to the accident;
(c)      the likelihood that he would have continued in such employment, but for the accident;
(d)      the possibility that she might have obtained promotion or other benefits, but for the accident;
(e)      the age to which she was likely to have worked in that employment, and
(f)       the possibility that the employment would not have been continuous.
In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (8 August 2012) Basten J noted at 35 and 36:
“35 The conventional approach to such an exercise is to assess the earning capacity of the Claimant in monetary terms prior to the accident (usually on the basis of net weekly or annual earnings) and, where there is evidence of unemployment or employment at a reduced income thereafter, to assess the quantum of the difference up to the date of hearing (past economic loss) and to project the calculation into the future (future economic loss). The latter exercise will, again conventionally, be discounted by 15% on account of vicissitudes.
36 Such calculations produce precise figures, often resulting in awards expressed in dollars and cents. However, such precision is fallacious. Varying degrees of uncertainty will attend the hypothetical aspects of the calculation, rendering any degree of precision misleading.”
Then further at 52 the matter was also the subject of discussion by this Court (Hoeben J) in Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098. His Honour, at [213], referred to the judgment of the Court of Appeal in State of New South Wales v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 at [65] and [87]. In Moss, supra, Heydon JA, at [87], with whom Mason P and Handley JA agreed, said:
"[87] In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. Statements to the contrary such as those made in Allen v Loadsman [1975] 2 NSWLR 787at 792 are not correct: Baird v Roberts [1977] 2 NSWLR 389 at 397-8 per Mahoney JA; J K Keally v Jones [1979] 1 NSWLR 723 at 732-735 per Moffitt P; Yammine v Kalwy [1979] 2 NSWLR 151 at 154-5 and 156-7 per Reynolds JA and Mahoney JA; Thiess Properties Pty Ltd v Page [1980] FCA 101; (1980) 31 ALR 430; see also Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751 at 761 where Samuels JA criticised the 'meagre facts' provided but did not say it was not open to the jury to find a substantial sum for diminished earning capacity by the 'application of their own knowledge and experience'. The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. The trial judge in substance explained these aspects of the jury's task satisfactorily."

Past economic loss

That application asserted that the claimant’s monthly earnings at the time of the accident were $6,160 earned from his employment as a painter by a company called MHM Painting & Decorating
The claimant’s submissions note there was a great deal of questions asked of the claimant about whether or not he was earning $6,100 gross per month and that the claimant maintained ‘It was even more than that, not less than that’.
The schedule referred to use a figure of $852.31 net per week (from a gross figure of $1,020.31). This was based on the Tax Return. AD12 page 438 of 445 at paragraph 1.1.
This equates to a figure of about $4,080 a month gross.
In the event that I was to accept the claimant’s evidence that he was earning more than $6,100 gross per month, this would involve accepting that the figures provide in the Tax Return were inaccurate and that the claimant had in his Tax Return understated his income by about $2,000 gross per month.
The claimant submitted that:
“… those findings are open and are consistent with authority as to how one approaches not the specific loss calculated by reference to business records which would be an error of law, but rather undertaking the assessment of earning capacity which is a wide ranging inquiry which is not informed by slavish adherence to prior documentation such as invoices, business records, wage slips and the like”.
At paragraph 23 of the submissions;
“so far as his previous work as a painter was concerned, he said that based on his injury he couldn’t do anything more because back then he had to go up and down the ladder and up and down stairs because ‘I did [sic] in the building area and now I can’t do any of those’ (T10/30). He had not attempted to climb a ladder since the accident (T10/32 – T11/1). He said in respect of his back he still had conservative therapy and physiotherapy, but it had not assisted him.”
The insurer’s submissions were that the claimant was initially certified totally unfit for work but from November 2019 has been certified fit for work 4 hours per day, 2 days per week, with an 8kg lifting restriction.
Accepting the medical opinions, it would seem that there would be a period of ongoing incapacity but that this could be for a limited period.
The insurer noted the claimant’s evidence as to what he was earning at the time of the accident simply cannot be accepted. The only contemporaneous material to evidence the claimant’s earnings at the time of the accident are the claimant’s bank statements. They support average gross weekly earnings of $400. This amounts to $382.50 net per week.
For the past, the insurer concedes that the claimant has been unfit for work as a painter and assesses damages at the rate of $382.50 for the previous four years at $79,560.
The insurer submitted that the claimant was self-employed there is no entitlement to superannuation.
On the material before me it seems most likely that the potential range of earnings was somewhere between $382.50 net per week, as calculated by the insurer, and $852.31 net per week, as calculated by the claimant.
The insurer using the rate of $382.50 calculates this for the previous four years at $79,560. This is based on 208 weeks in the period from the accident to the date of the assessment.
The claimant appears to have accepted the period is 208 weeks.
The evidence suggests that even when working he was most likely working five days a week not the six days a week he claimed.
Again, he was not working full time and had periods when there was no work.
At times he was paid in cash.
Using the daily rate of $280 and assuming the claimant was usually working five days a week, this would amount to total annual potential earnings of about $72,800.
The claimant’s evidence based on the invoices was to the effect that the invoice dated |

25 July 2019 covered work up to 15 March 2019.
In the period after 13 March 2019 to the date of the accident the claimant worked a total of 25 days.
My calculation is that is for a period of about 44 days with the claimant working on 25 of those 44 days. That represents working about 55% of the time. This calculation is dependent upon accepting that the dates for work in the 25 July 2019 are accurate, there is difficulty accepting that to be the case.
In that context, I am of the view that using a figure of 50% is not unreasonable.
Taking all of these issues into consideration, I estimate the claimant’s earning capacity to be $36,400, being half of the estimated potential earnings of $72,800.
This amounts to about $698 gross per week being about $632 net per week.
The claimant maintained that he had not worked following the accident, however, given the issues in relation to the evidence of the claimant that remained uncertain.
On this basis I have calculated the amount for past economic loss for the period of 208 weeks at the rate of $632 per week to be an amount of $131,456.
The evidence was that the claimant was self-employed there is no entitlement to superannuation.
The claimant made a claim for Fox v Wood that was particularised in the sum of $22,000. No evidence was provided to support that figure.
The insurer detailed the Fox v Wood amount at $9,509.80. The evidence from the insurer was that it had paid this sum in taxation in relation to the payments made.
I have allowed Fox v Wood at $9,509.80.

Future economic loss

Assessing future economic loss for the claimant was a difficult task, there was a great deal of uncertainty about the work history of the claimant in the period from 2015/6 up to about August 2018 and from August 2018 to the date of the accident.
The claimant had sought to rely on a number of at best questionable documents to substantiate his claim for economic loss. At the same time, the assertions made by the claimant in relation to his physical incapacity were inconsistent with his actions and with the concessions made when questioned.
The claimant submits that the most likely future circumstances had it not been for the negligence of the driver would be that the claimant would have gone on to continue his work as a painter and improved/expanded his work over time.
The claimant has advanced a case that had it not been for his significant injuries he would have had an earning capacity of at least $1,200 net per week to age 67.
The insurers submissions were that the claimant clearly has a greater earning capacity than he has admitted to. Because of the uncertainty surrounding the claimant’s income and the like, it is submitted that the best way to approach damages for the future is by the award of a buffer. It is submitted a buffer of $50,000 is appropriate.
The assessment of the future was significantly influenced by the evidence of the claimant and his evidence as to his incapacity.
In relation to the skills, training and experience of the claimant as at the date of the accident, the evidence was that he had undertaken work as a painter.
It was not clear that he had any formal skill or training to undertake this work.
At time he claimed he was undertaking labouring work.
The claimant’s own evidence was that he had very limited skills in English both in terms of understanding spoken English and in terms of reading English.
English language courses had been recommended to him, but he did not pursue these.
Clear details of the work he was undertaking immediately prior to the accident were hard to ascertain. He had done painting work but the precise nature of this work and extent that he had undertaken it was unclear.
On this aspect we were largely reliant on the evidence of the claimant.
The evidence of the claimant started with the assertion that “From 2016, I used to make approximately $6,100 gross per month”.
Subsequently, his evidence was that he had not worked much before August 2018.
Subsequently, his evidence was of earning possibly as low as $3,000 gross per month.
The evidence of the claimant started with the assertion that he worked full time six days a week.
Subsequently, his evidence was that he was not working full time and there were times he did not have work.
The invoices tended to suggest that when he was working, he only worked five days a week.
The evidence of the claimant was unreliable. He maintained that at time he was paid cash. The precise nature of the claimant’s employment immediately before the accident was uncertain.
In my view the likelihood that he would have continued in such employment, but for the accident was also uncertain.
The claimant’s own evidence was that he had only really been engaged in this work since August 2018. The accident had occurred on 27 April 2019. This was a period of nine months.
He had not really undertaken any significant work in the period from 2015 to August 2018.
What was clear was that the claimant had in the past undertaken a variety of semi-skilled jobs to earn a living. He had had significant periods of having very little employment.
In my view it was most likely that the employment history of the claimant in the period from 2015 to 27 April 2019 was likely to continue in the future.
This aspect was largely reliant on the evidence of the claimant, undertaking a variety of semi-skilled jobs to earn a living with periods of periods of having very little employment and periods of employment, but not full-time employment.
The possibility that he might have obtained promotion or other benefits, but for the accident. On the available evidence this seemed unlikely, at time he described the work he was undertaking as looking after a team of workers and it is hard to see how without any English a promotion would have been achievable.
The age to which he was likely to have worked in that employment. The evidence is in my view too unclear and imprecise to form any reliable view of a retirement age. Given the unreliable nature of his work it would be most likely that he would need to work to retirement age.
The possibility that the employment would not have been continuous, was very real in the context of this matter. The working history of the claimant on his own evidence had been periods of no work.
At its best the claimant had worked something less than full-time, and likely at most five days a week, from the period of August 2018 to the accident in April 2019, a period of nine months.
I do not accept that the claimant was as incapacitated as he asserted.
In my view the claimant clearly experienced less significant symptoms than he reported.
In my view the claimant had a much greater capacity for work than he asserted.
In these circumstances, I do not believe that a calculation for future economic loss can be made with any real mathematical precision.
Firstly, the starting point is itself very imprecise, whilst I have made a calculation of earning capacity at the time of the accident, it is readily apparent for the surrounding information that there is much uncertainty in that calculation.
It is not clear the extent to which the claimant may have been reliant upon “cash” or undeclared income to meet his expenses.
It is not clear the extent to which it would be sustainable long term for the claimant to have relied upon “cash” or undeclared income.
Taking all of this into consideration it seems likely that the claimant would have continued with this pre-accident work history of significant periods of little work and periods of no work. It also seems that with the claimant’s background and education, training and experience that the claimant would be limited to largely unskilled work.
Whist the evidence in relation to the claimant’s capacity is less clear, in my view the claimant likely does have a current capacity to earn, I consider that within some time the claimant should be able to return to his pre-accident work behaviours and earnings.

I make an allowance in the form of a buffer in the sum of $100,000.

Costs

I am also asked to assess the claimant's entitlement to costs. The claimant did not tender any evidence in relation to costs, they were lodged on the Portal but not included in the material before me at the assessment conference.
After these were provided to me, I sought comment from the insurer in relation to these costs.
On 25 July 2023 the insurer provided me with a response as follows:
“The Insurer does not have concerns about the majority of the amounts claimed in the schedule of costs dated 21 March 2023.
However, the Insurer observes the large quantity of invoices claimed for interpreter services. Based on the information provided, the Insurer is unable to determine whether or not these costs were reasonably incurred.”
The only aspect of the costs challenged by the insurer was the interpreter services.
What was apparent from the two dates of the assessment conference was that the claimant was a difficult witness, in that he was not inclined to provide a direct response to most questions. In my view a large quantity of interpreter services is consistent with the claimant’s presentation at the assessment conference.
I have accepted the costs as claimed.

[2023] NSWPIC 597

19 September 2023