Ladhani v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ladhani v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 532
Claimant:	Rashida Ladhani
insurer:	Insurance Australia Limited t/as NRMA Insurance
Member:	Anthony Scarcella
DATE OF DECISION:	27 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Assessment of a claim for damages under Division 7.6 of the Motor Accident Injuries Act 2017; non-economic loss and past loss of earnings assessed; elderly claimant; physical injuries not in dispute; psychological injury and cognitive impairment in dispute; Hancock v East Coast Timbers Products Pty Ltd; Davis v Council of the City of Wagga Wagga, Mason v Demasi, Hodgson v Crane, Nominal Defendant v Lane, Brown v Lewis, Reece v Reece, RACQ Insurance Ltd v Motor Accidents Authority (NSW) (No 2), Medlin v State Government Insurance Commission, Husher v Husher, Mead v Kerney considered and applied.
determinations made:	1. The amount of damages for the claim is $311,854.14. 2. The amount of the claimant’s costs in the matter is $31,207.50 inclusive of GST.

STATEMENT OF REASONS

BACKGROUND

This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 29 December 2017 (the motor accident).
The claimant, Mrs Rashida Ladhani, is an 80 year old woman, who was involved in the motor accident on 29 December 2017 in which she suffered injuries.
On 5 February 2018, Mrs Ladhani made an application for personal injury benefits in respect of the motor accident against Insurance Australia Limited t/as NRMA Insurance (NRMA), being the compulsory third-party insurer of the vehicle at fault.[1]
[1] Ladhani’s documents at pages 4-9.
On 2 March 2020, Mrs Ladhani made an application for damages under common law.[2]
[2] Ladhani’s documents at pages 16-18.
In a liability notice dated 29 May 2020, NRMA admitted liability, including an admission of breach of duty of care and that Mrs Ladhani had suffered some injury, loss or damage as a result of the driver of the vehicle at fault.[3]
[3] Ladhani’s documents at pages 34-35.
On 27 August 2021, Mrs Ladhani lodged an application for the assessment of damages (the Application) with the Motor Accidents Division of the Personal Injury Commission (the Commission). As the Application was lodged outside the three year time limit, Mrs Ladhani sought and was granted leave by the Commission to refer the claim for assessment under s 7.33 of the MAI Act on 20 October 2021.
At a teleconference on 26 April 2022, the matter was set down for an audio-visual assessment conference on 11 July 2022. Mr Dean-Lloyd Del Monte of counsel appeared for Mrs Ladhani, instructed by Mr Bill Langler, solicitor. Ms Jamie Kulczycki, solicitor appeared for NRMA.
The parties agreed that the following issues were required to be determined by me:
(a)   the nature and extent of Mrs Ladhani’s injuries;
(b)   the quantum of Mrs Ladhani’s damages for non-economic loss, and
(c)   the quantum of Mrs Ladhani’s damages for past loss of earnings or past loss of earning capacity.
The parties agreed that:
(a)   Mrs Ladhani did not receive payment of weekly statutory benefits from NRMA after the motor accident, despite having claimed the same and accordingly, there is no deduction to be made under s 3.40(1)(b) of the MAI Act and that there was no Fox v Wood damages claim;
(b)   damages for past loss of earnings for the period 29 December 2017 to 28 February 2019 is agreed at $51,964.98 net and superannuation thereon is agreed at 11% of the net sum thereon.
(c)   it was not necessary for me to issue my reasons for decision in draft, and
(d)   there is no dispute in respect of Mrs Ladhani’s legal costs and disbursements, which are to be assessed in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017, except that the claim for a Coffs Harbour loading is no longer pressed.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)   Mrs Ladhani’s Application dated 27 August 2021 and the final tender bundle of supporting documents lodged with the Commission on 22 June 2022 and identified as “AD5” (Ladhani’s documents);
(b)   NRMA’s reply to the Application dated 29 September 2021 and the final tender bundle of supporting documents lodged with the Commission on 4 July 2022 and identified as “AD6” (NRMA’s documents);
(c)   Dr Andrew Milne, geriatrician’s report dated 19 July 2021, identified as “AD7”;
(d)   Dr Andrew Milne’s report dated 23 November 2020, identified as “AD8”, and
(e)   MRI brain scan report by Dr Sohrabh Memon dated 13 November 2020, identified as “AD9”.

Oral evidence

Oral evidence was adduced from the following at the assessment conference:
(a) Mrs Ladhani, and
(b) Dr Fatehali Ladhani.

SUBMISSIONS

Mrs Ladhani’s legal representatives provided written submissions on the substantive issues dated 24 May 2022, supplemented by oral submissions at the assessment conference.
NRMA’s legal representatives provided written submissions on the substantive issues dated 29 September 2021 and updated written submissions dated 4 July 2022, supplemented by brief oral submissions at the assessment conference.
I will refer to the parties’ submissions under each relevant issue for determination set out below.

THE NATURE AND EXTENT OF MRS RASHIDA LADHANI’S INJURIES

Mrs Rashida Ladhani’s evidence

In evidence, there are written statements by Mrs Ladhani dated 26 August 2021[4] and 24 May 2022.[5] She also gave oral evidence at the assessment conference. I will now refer to the relevant parts of her statements and oral evidence.
[4] Ladhani's documents at pages 141-150.
[5] Ladhani's documents at pages 183-184.
Mrs Ladhani stated that she is the wife of Dr Fatehali (Ali) Ladhani. They have been married for 47 years. In 1972, they were forced to flee Uganda to Switzerland as refugees and ultimately emigrated to Australia in 1975. On arriving in Australia, she worked for a period of six months in the psychology department of the Gladesville Mental Health Hospital in 1975-1976 as a typist and secretary. In about February 1976, she and Dr Ladhani moved to Coffs Harbour. After moving to Coffs Harbour, Dr Ladhani established a medical practice as a general practitioner, where Mrs Ladhani worked as the practice manager.
Mrs Ladhani stated that she had received treatment for depression after being forced to leave Uganda and the deaths of her brother and father in 1974. Dr Ladhani treated her for her depression from time to time. She also came under the care of Dr Wong, psychiatrist, of Stockton, who prescribed her Lithium Carbonate 450mg and Mirtazapine 30mg. After Dr Wong passed away, she was treated by Dr Lee, psychiatrist, of Nana Glen. Mrs Ladhani stated that her depression was under control and that it did not prevent her from continuing her work as Dr Ladhani’s full-time practice manager.
Mrs Ladhani stated that she had been involved in a motor vehicle accident in Coffs Harbour on 30 June 1978, where she suffered a concussion, a head injury, fractures to her chest and right clavicle and cuts to her eyes. She made a reasonable recovery from her injuries and returned to work as Dr Ladhani’s practice manager thereafter.
Mrs Ladhani stated that prior to the motor accident, she did not experience any problems with her neck, left shoulder, back, left foot or left ankle. Further, she did not have any problems with her memory or ability to work as a practice manager.
Mrs Ladhani stated that she had worked as Dr Ladhani’s practice manager for a period of 39 years prior to the motor accident. She described her duties as a practice manager as including receptionist duties; typing reports and other documents; managing and maintaining the book work; receipting payments; attending to the payment of bills; ordering stock; taking instructions from patients; and liaising between Dr Ladhani and his patients. She attended to the Medicare billing and the private billing. The billing was done on paper. The Medicare billing was done on forms that pensioners had to sign. Each month she would send the forms off to Medicare.
Mrs Ladhani stated that she worked 40 hours per week full-time and often longer as Dr Ladhani’s practice manager. At the time of the motor accident, her ordinary net weekly income was $919. The medical practice was open Mondays to Fridays inclusive and half a day on Saturday. She attended the medical practice on each of those days, except for Tuesday mornings, when she played golf. She was a qualified nurse and there was no other nurse in the practice. Dr Ladhani was the only doctor in the practice.
Mrs Ladhani stated that it was her intention to continue working as a practice manager until the age of 80 years. She described herself as Dr Ladhani’s right-hand person when it came to operating and managing his practice. She enjoyed her work and had every intention of working as long as she possibly could.
Mrs Ladhani’s attention was drawn to paragraph 3.5(a) of the letter from Ticli Blaxland Lawyers dated 16 April 2020[6] wherein her then lawyers stated that she had intended to retire at the end of 2020. In her oral evidence, Mrs Ladhani initially denied telling her former lawyers that she had intended to retire at the end of 2020. Later, she stated that she was unable to remember and that if she could, she would say so. She then emphasised that she had always said that she would retire at the age of 80 years.
[6] Ladhani's documents at pages 29-33.
Mrs Ladhani stated that, at the time of the motor accident, she exercised regularly by walking, gardening and playing golf. She used to go for walks every day. She was a member of the Coffs Harbour Golf Club where she played in the ladies’ competition on most Tuesday mornings and played on weekends with a family friend. She was able to perform all her household domestic chores independently.
Mrs Ladhani stated that, on 29 December 2017, whilst in the company of Dr Ladhani and other relatives, she crossed a street at a pedestrian crossing in Parramatta when a car ran over her left foot, knocked her over causing her to fall heavily onto the roadway striking her head and the left side of her body. She immediately felt severe pain in her left foot, down her left side and in her lower back. She also felt groggy.
Mrs Ladhani stated that neither the police, nor the ambulance were called following the motor accident. The particulars of the driver at fault were obtained. Dr Ladhani examined her at the accident scene. Dr Ladhani and her relatives assisted her to her feet and she hobbled to their car in great pain. They were due to travel back to Coffs Harbour that day and she managed the drive home with Dr Ladhani. She did not undergo any medical treatment for her injuries until she returned to Coffs Harbour.
Mrs Ladhani stated that a few days prior to the motor accident, namely, on 21 December 2017, Dr Ladhani had a fall on a travelator in Melbourne and injured his back.
Mrs Ladhani stated that, in the days after they returned to Coffs Harbour, she observed that she had a lot of facial bruising and swelling; cuts to her elbows; abrasions to both knees; a very painful left foot that caused difficulties when weight-bearing, standing or walking; and pain in her lower back. Initially, she rested at home thinking she would recover but the pain and restrictions did not improve.
Mrs Ladhani stated that, shortly after the motor accident, she began experiencing flashbacks about it and noticed that she had become more and more withdrawn. She did not feel like herself.
Mrs Ladhani stated that Dr Ladhani treated her as a patient in the medical practice following the motor accident. On 11 January 2018, she underwent X-rays of her chest, mid and lower back, left foot and left ankle at Beachside Radiology.
Mrs Ladhani stated that she consulted her treating general practitioner, Dr Jay Ruthnam on 19 January 2018, who recommended that she undergo physiotherapy to her shoulder, elbow and knee.
Mrs Ladhani stated that she initially attempted to use crutches and a CAM boot but after she sustained a fall whilst using them, she decided against using these supports for fear of falling again and injuring herself further.
Mrs Ladhani stated that, after she had undergone some initial physiotherapy, she performed physiotherapy exercises at home to improve her strength and flexibility. Further, Dr Ladhani would massage her twice a day with various creams, which gave her temporary relief from the pain in her back, left leg and left foot.
Mrs Ladhani stated that, prior to the motor accident, she had prided herself on the accuracy of her work and her efficiency. She described herself as a capable typist and competent with a computer prior to the motor accident.
Mrs Ladhani stated that due to the motor accident related injuries, she was unable to return to work until after 18 June 2018. However, she did not recommence paid work until mid-October 2018. When she returned to work, she was only able to work part-time up to 20 hours per week with restrictions on the advice of Dr Ruthnam.
Mrs Ladhani stated that, after she returned to work as a practice manager, she suffered a loss of confidence because she was struggling to perform tasks that she had previously found very easy. She made a lot of mistakes. At times, she was very forgetful and felt vague. She suffered from pain in her leg, left arm, shoulder and lower back and she found it difficult to sit or stand for prolonged periods. She also suffered from terrible headaches.
Mrs Ladhani stated that she did not experience any memory problems prior to the motor accident. The memory problems commenced soon after the motor accident. She first noticed issues with her memory when she returned to work in the medical practice in about mid-2018. When she returned to work, she worked for 20 hours per week and in her oral evidence stated, “but I couldn’t do good work”. She realised that she could not concentrate and that she had lost her confidence. The memory issues were not improving and were becoming worse. Prior to the motor accident she had a good memory.
Mrs Ladhani stated that, as time passed, she became more and more depressed as a result of the ongoing pain and the difficulties she experienced in carrying out her duties as a practice manager. She experienced panic attacks whilst working at reception. She had never experienced panic attacks prior to the motor accident. She continued to experience flashbacks of the motor accident. She was very unhappy with herself and felt useless to her husband. At certain points in time since the motor accident, she has felt suicidal. She feels that her life has changed for the worse and she does not believe that she can do many of the things she used to enjoy. As a result, she was simply unable to continue to manage the day-to-day running of the practice any longer and ceased working as the practice manager in December 2018. She was last paid on 3 March 2019.
Mrs Ladhani stated that, after she ceased as practice manager, Dr Ladhani continued in the medical practice and hired other staff to assist in its running. On 28 February 2019, Dr Ladhani sold his medical practice to Dr Clarke. Dr Ladhani would not have sold the medical practice if she had been able to keep working as practice manager.
Mrs Ladhani stated that, after Dr Ladhani sold the medical practice, he worked for the GP Super Clinic until November 2019, when he ceased working as a general practitioner as a result of experiencing serious complications following back surgery.
Mrs Ladhani stated that whilst working at the GP Super Clinic, Dr Ladhani would take her with him because he feared that she might commit suicide at home alone.
Mrs Ladhani stated that, even though Dr Ladhani sold his medical practice, she would have looked for work as a practice manager or medical receptionist in Coffs Harbour. Whilst Dr Ladhani was working for the GP Super Clinic, she would still go in and help him manage his medical records. There were medical receptionist jobs available at that practice and elsewhere in Coffs Harbour that she could have applied for and could have managed but for the effects of the motor accident. An advantage she had in respect of applying for such work was that she spoke four languages, namely, Hindi, Gujarati, Kutchi and Swahili. There is a large Indian population in the Coffs Harbour area as well as a large African refugee population. Many patients in Dr Ladhani’s practice did not speak English fluently and she would often have to use her language skills to obtain information from them.
Mrs Ladhani stated that Dr Ruthnam referred her to Dr Andrew Milne, geriatrician, who she consulted for the first time on 10 November 2020.
Mrs Ladhani stated that she suffers the following ongoing symptoms and restrictions as a result of the motor accident:
(a)   severe headaches every second day;
(b)   pain and restriction of movement in the neck;
(c)   bilateral shoulder pain with a restriction of movement;
(d)   pain and weakness in the arms;
(e)   pain and restriction of movement in the back;
(f)    pain in the lower back with pain down the right side and right leg;
(g)   pain and weakness in the left leg;
(h)   inability to sit for prolonged periods without pain;
(i)    inability to stand for prolonged periods without pain;
(j)    inability to walk on uneven surfaces without assistance;
(k)   inability to ascend and descend stairs without assistance;
(l)    difficulty performing pre-accident domestic chores including, cleaning, washing, ironing, vacuuming, cleaning windows and cleaning bathrooms;
(m)     difficulty performing tasks lying down;
(n)   difficulty bending over;
(o)   inability to attend to the gardening, except for weeding;
(p)   difficulty driving or travelling in a motor vehicle (she has given up her driver’s licence and is now dependent on her husband for transport);
(q)   inability to play golf;
(r)   inability to go on her pre-injury daily walks by way of exercise;
(s)   flashbacks and nightmares about the motor accident;
(t)    difficulty sleeping because of the pain and nightmares;
(u)   depression;
(v)   loss of confidence;
(w)     significant memory problems and confusion, particularly when not rested or taking pain relieving or sedative medication;
(x)   avoids socialising, spending most of her time at home and has become withdrawn, and
(y)   feelings of worthlessness.
Mrs Ladhani stated that, since the motor accident, she has medicated with Lithium Carbonate 450mg (a mood stabiliser) and Mirtazapine 30mg (an antidepressant). She also provided a list of creams and gels used in respect of her physical injuries.

Dr Fatehali Ladhani’s evidence

In evidence, there are written statements by Dr Ladhani dated 26 August 2021[7] and 24 May 2022.[8] He also gave oral evidence at the assessment conference. I will now refer to the relevant parts of his statements and oral evidence.
[7] Ladhani's documents at pages 151-154.
[8] Ladhani's documents at page 186.
Dr Ladhani stated that he is the husband of the claimant in these proceedings, Rashida Ladhani. He was a registered general medical practitioner until his retirement.
Dr Ladhani stated that he and Mrs Ladhani had to leave Uganda because the Amin regime required its Indian population to leave the country. As a result, Mrs Ladhani lost her business in Uganda.
Dr Ladhani stated that he and Mrs Ladhani emigrated to Australia in 1975. They settled in Coffs Harbour in 1976 and he established his medical practice as a general practitioner in that city. Mrs Ladhani worked as his practice manager from the time he commenced his medical practice.
Dr Ladhani stated that Mrs Ladhani had been involved in a motor vehicle accident in about 1978, where she suffered head and other injuries. She took some time off work and made a reasonable recovery from that accident.

Dr Ladhani stated that Mrs Ladhani became depressed after she lost her business in Uganda. A short time afterwards, her brother and father died in 1974. Dr Ladhani had treated her for depression and she had also received treatment from Dr Wong, who had prescribed her antidepressant medication. At the time of the motor accident, Mrs Ladhani’s depression was well-managed and under control. It did not prevent her from working full-time in the medical practice up until the motor accident.
Dr Ladhani stated that, prior to the motor accident, Mrs Ladhani was active and exercised by walking regularly and playing golf. She was physically fit for her age. She was a very strong and independent person, who was very confident in her work. She was very hard-working and a diligent practice manager and was his “right-hand person”.[9] Mrs Ladhani was very efficient, good with patients of the practice and had great attention for detail and accuracy. As a result of Mrs Ladhani being a diligent practice manager, Dr Ladhani was able to focus on treating his patients.
[9] Ladhani's documents at page 151 at [12].
Dr Ladhani stated that, prior to the motor accident, Mrs Ladhani worked 40 hours or more per week and was paid $912 per week before tax.
Dr Ladhani stated that, prior to the motor accident, Mrs Ladhani performed almost all their household chores and duties.
Dr Ladhani stated that he injured his back in an accident whilst in Melbourne on 21 December 2017 when he fell on a travelator which stopped suddenly.
Dr Ladhani stated that he was with Mrs Ladhani at the time of the motor accident and described the accident as follows:
“She was crossing the road at Parramatta with the green pedestrian light, when a car came around the corner and appeared not to see her and hit her, knocking her to the road and then driving over her left foot. She was very dazed and in a state of shock after the accident.”[10]
[10] Ladhani's documents at page 152 at [18].
Dr Ladhani stated that, as they were intending to go home on the day of the motor accident, he drove Mrs Ladhani back to Coffs Harbour where he treated her, rather than taking her to hospital. He subsequently took her to consult her regular general practitioner, Dr Ruthnam, who has treated her since the motor accident. Dr Ladhani has also treated her since the motor accident.
Dr Ladhani stated that, after the motor accident, Mrs Ladhani was in a lot of pain in her back, left leg, left foot and left arm where she had hit the roadway.
Dr Ladhani stated that, since the motor accident, Mrs Ladhani has complained to him of ongoing pain in her back, left leg, left foot and left arm. Since early on in her rehabilitation, he initially massaged Mrs Ladhani’s back, left leg, left foot and arm each week to assist in alleviating her pain. Mrs Ladhani has also undertaken physiotherapy exercises at home to improve her strength and flexibility. Dr Ladhani did not prescribe her any pain medication because she has had adverse reactions including, drowsiness and constipation. Instead she has used topical medications.
Dr Ladhani stated that Mrs Ladhani continued to complain to him about experiencing pain in her back, left leg and left foot on a daily basis. He observed that her right leg now gave her a lot of pain as well. He now massages Mrs Ladhani twice a day as it provides her with some pain relief and a temporary greater ability to function and move around. She was no longer able to perform many of her pre-motor accident domestic duties of house cleaning and gardening. She can no longer go on her pre-injury walks or play golf the way she used to. Mrs Ladhani has not played golf since the motor accident. She loved her golf and played a couple of times a week at Coffs Harbour Golf Club, where she was a member.
Dr Ladhani stated that, based on his observations, Mrs Ladhani’s pain, restrictions and problems arising from the motor accident have continued to worsen.
Dr Ladhani stated that Mrs Ladhani no longer socialised much and stayed at home most of the time. She has one friend who she sees occasionally.
Dr Ladhani stated that Mrs Ladhani’s memory was now very poor. He has to remind her of things each day as she forgets easily. She was not like that before the motor accident. She is now very frail and lacks confidence.
Dr Ladhani stated that Mrs Ladhani had given up driving since the motor accident because she could not cope with the stress of it and as a result, lost confidence. When she does leave the home, either he drives her or she takes a taxi.
Dr Ladhani stated that he noticed a significant change in Mrs Ladhani following the motor accident. He observed that she had become withdrawn and lost her confidence. Based on his observations and treatment of Mrs Ladhani, Dr Ladhani concluded that she had become very depressed and that she was far worse than she had been prior to the motor accident in respect of her depression.
Dr Ladhani stated that, initially, he had assessed that there would be an improvement in Mrs Ladhani’s condition. He was hoping that she would be able to pick up. However, there had not been the improvement he had hoped for.
Dr Ladhani stated that Mrs Ladhani was unable to work in her role as a practice manager for about six months following the motor accident. In June 2018, she returned to work for 20 hours per week as recommended Dr Ruthnam.
Dr Ladhani stated that when Mrs Ladhani returned to work he observed that she really struggled with day-to-day tasks in the medical practice that she had previously performed with ease and greater efficiency prior to the motor accident. He felt that she was not coping even on her reduced hours. She was still experiencing a lot of pain. He observed her to panic when someone asked her question. She had no such issues before the motor accident. He also observed her making a lot of mistakes and as a result, he arranged for another person to work in the practice to assist her. However, that person left the job and Mrs Ladhani simply could not cope with the workload.
Dr Ladhani stated that his medical practice was adversely affected as a result of his right-hand person, Mrs Ladhani, no longer being there to assist him. It had been their intention to continue working until age 80. They loved their work and had wonderful relationships with their patients.
Dr Ladhani stated that he and Mrs Ladhani had never discussed retirement until the motor accident because all had been going well. There was no question of retirement until they received a good offer for the medical practice. It was only after the motor accident that they raised the question, “what do we do now?” He had no choice, he had to give away the practice at a lower price than he would otherwise have sold it for because there was no other way out for him.
Dr Ladhani stated that Mrs Ladhani had become increasingly dependent on him to assist her at home because of her ongoing pain and increased depression. He found that he was not able to manage the medical practice on his own without her assistance as practice manager and decided to sell his medical practice. He still intended to work as a general practitioner following the sale of his practice.
Dr Ladhani stated that he sold his medical practice and its premises to Dr Shaun Clarke, a pain specialist, on 28 February 2019. Following the sale of the practice, he continued to work as a general practitioner as a contractor at the GP Super Clinic in Coffs Harbour. He was paid for each patient he consulted. He had flexibility at the GP Super Clinic. Whilst he was contracted to them, he was also a senior lecturer at the University of New South Wales, lecturing to nurse students in hospital, at the psychiatric clinic and at the pain clinic.
Dr Ladhani stated that, in November 2019, he underwent surgery to his back and developed further vascular complications that badly affected his left leg and his mobility. As a result, he decided to cease work as a general practitioner.
Dr Ladhani stated that, but for the injuries and disabilities suffered by Mrs Ladhani following the motor accident, she still would have been a valuable asset to another medical practice, including the GP Super Clinic, even if he had to cease working as a general practitioner, given her extensive experience and skill as a practice manager. Further, her language abilities included speaking Hindi, Gujarati, Kutchi and Swahili.
Dr Ladhani stated that, whilst he was contracted to the GP Super Clinic, jobs came up for medical receptionists. Mrs Ladhani would come to the GP Super Clinic and assist him with his medical records. The management at the GP Super Clinic promised that, if Mrs Ladhani was willing to come back and work, then she would be given the job to do the things she used to do in his medical practice. However, she could no longer cope with the other tasks of dealing with his patients or her other previous management responsibilities as a result of the effects of the motor accident.
Dr Ladhani stated that his patient files were paper-based. At the GP Super Clinic patient records were kept on a computer system and his patient paper records were being transferred to the computer system by him whenever he saw one of his patients.

Ms Gwynneth Harrison’s evidence

In evidence, there is a written statement by Ms Gwynneth Harrison dated 24 May 2022.[11] I will now refer to the relevant parts of that statement.
[11] Ladhani's documents at pages 190-191.
Ms Harrison stated that she had known Dr and Mrs Ladhani for over 40 years. She began working for Dr Ladhani in about 2008 as a medical receptionist. Mrs Ladhani was the medical practice manager. Mrs Ladhani taught her everything she had learnt in the medical practice in her role as a medical receptionist. She and Mrs Ladhani performed other duties including, taking information from patients, completing and filing medical records, cleaning and sterilising instruments, maintaining stock and accounting records. She enjoyed working for Dr and Mrs Ladhani. They were like a small family.
Ms Harrison described Mrs Ladhani’s performance as a practice manager as follows:
“It was my observation prior to Rashida’s motor vehicle accident in 2017 that she was very good at her job as a practice manager. She understood the practice inside out and had a very good memory about Doc’s patients. She had great attention to detail and was very efficient in her work. I learned a lot from her. Because she was so good at what she did, this freed up Doc to focus on his patients.
Rashida had an amazing mathematical ability, for example she was able to add up a large number of accounting figures in her head without using a calculator.” [12]
[12] Ladhani's documents at page 190 at [8] and [9].
Ms Harrison stated that Mrs Ladhani spoke several languages, including three Indian dialects and noted that there was a very large Indian clientele in the practice. Mrs Ladhani’s ability to speak those dialects was of great assistance in dealing with Dr Ladhani’s patients, many of whom did not speak fluent English.
Ms Harrison observed that, prior to the motor accident, Mrs Ladhani was a very happy, positive person who was mentally very bright.
Ms Harrison stated that, from her discussions with Dr and Mrs Ladhani before the motor accident, neither of them had any intention of retiring early. She recalled a conversation wherein Dr Ladhani advised her not to retire or give up work because he had seen other doctors do so and go downhill.
Ms Harrison observed that, after returning to work following the motor accident, Mrs Ladhani really struggled. She observed a very significant decline in her physical and mental health. At work, she would complain of being in a lot of pain, that she felt awful and that her legs were aching. She appeared very tired a lot of the time. When she took breaks she would often just fall asleep.
Ms Harrison observed that Mrs Ladhani was feeling very down and depressed at her situation. On several occasions, Mrs Ladhani expressed to her that she felt she was going mad.
Ms Harrison formed the view that Mrs Ladhani was simply unable to cope with the work anymore. She observed her forgetting things and making mistakes. She even struggled to remember long-standing patients’ names.
Ms Harrison stated that it became apparent to her that Mrs Ladhani could not continue working any longer. Dr Ladhani decided to sell the practice. Ms Harrison provided assistance in the practice as long as she could but had to look for alternative work because she needed to keep working. Ms Harrison continued to assist Mrs Ladhani on a voluntary basis at the practice one day per week after she had ceased working there out of respect for her friendship with Dr and Mrs Ladhani.
Ms Harrison stated that, after his medical practice was sold, Dr Ladhani worked at the GP Super Clinic in Coffs Harbour.
Ms Harrison stated that, based on her discussions with Mrs Ladhani and her observations of her abilities prior to the motor accident, she saw no reason why Mrs Ladhani would not have kept working for as long as she possibly could. Mrs Ladhani enjoyed her work.
Ms Harrison stated that, even if Dr Ladhani had had to sell his practice, Mrs Ladhani would have been a great asset to any other medical practice, either as a practice manager, a receptionist or in clerical role, based on her many years of experience.

The evidence of the treatment providers

On 3 August 2016, on the referral of Dr Ladhani, Mrs Ladhani underwent a CT brain scan and OPG by Dr Peter Macintosh, radiologist, with a history of a painful right mandible and left temporomandibular joint and ear ache. Dr Macintosh reported that the brain level windows demonstrated generalised central and superficial atrophic changes, probably commensurate with Mrs Ladhani’s age. The ventricles were midline. There was no evidence of any recent intra or extracerebral haemorrhages. There was no evidence of any mass lesions or mass effects. The grey-white matter outlined normally.[13]
[13] NRMA's documents at pages 52-53.
In evidence, there are Mrs Ladhani’s clinical records produced by Dr Ruthnam as of 17 October 2019.[14] In an entry in the clinical records on 11 January 2018, Dr Ruthnam created and printed a letter to an emergency physician. There did not appear to be a consultation with Mrs Ladhani on that date.[15]
[14] Ladhani's documents at pages 61-80.
[15] Ladhani's documents at page 65.
On 11 January 2018, Mrs Ladhani underwent X-rays to her chest, thoracic spine, lumbar spine, left foot and left ankle by Dr J Mitchell, radiologist, of Beachside Radiology.[16] The X-ray of the lungs were clear and normal. The X-ray of the thoracic spine demonstrated a normal kyphosis with a moderate scoliosis convex to the right centred at about T11; vertebral body heights had been maintained; there was mild narrowing of a number of mid thoracic intervertebral discs with minor osteophytic lifting of the vertebral endplates; and the pedicles and paravertebral soft tissues appeared within normal limits. The X-ray of the lumbar spine demonstrated a normal lordosis apart from a slight forward shift of L4 and L5; a moderate scoliosis convex to the left centred at the lumbosacral junction; lateral wedging of the T12 vertebral body sufficient to meet the criteria for a crush fracture but without an acute change; the remaining vertebral body heights had been maintained; pedicles were intact; there was moderate narrowing of the intervertebral discs throughout the lumbar region; there appeared to be moderate degenerative changes in the lower lumbar facet joints; mild degenerative changes in both sacroiliac joints; and mild degenerative changes in both hip joints. The X-ray of the left foot and left ankle demonstrated fractures of the distal shafts of the first, second, fourth and fifth metatarsals and a transverse fracture through the base of the fifth metatarsal. The fractures through the distal fourth and fifth metatarsal were slightly displaced and angulated, whilst the other fractures were undisplaced.
[16] Ladhani's documents at pages 59-60.
In an entry in the clinical records on 19 January 2018, Dr Ruthnam took a history that, on 29 December 2017, Mrs Ladhani was in Parramatta crossing over at a pedestrian crossing when she was hit by a car. She suffered no loss of consciousness. She sustained facial injuries (nose and left inferior orbital); swollen and bruised bilateral elbows; abrasions with skin loss over the olecranon; and abrasions to both knees. She got up with difficulty and walked with support. She went home and rested. On examination, Dr Ruthnam noted tenderness in her neck with spasm on the right lower left mid C3/4 and reduced left lateral rotation; shoulders were intact but tender on the left; no rib fracture; and gross swelling to the left knee. Dr Ruthnam recommended focusing on reducing swelling.
In evidence, there is an application for personal injury benefits in respect of the motor accident submitted by or on behalf of Mrs Ladhani, signed by her and dated 5 February 2018.[17] The description provided of the motor accident was consistent with the evidence. The section requiring an outline of the motor accident related injuries contained the words “see attached list”.[18] There was no list attached to the application for personal injury benefits in evidence. However, in NRMA’s documents, there was a document identified as “medical injury report”,[19] which may have been the missing attachment to the application for personal injury benefits.
[17] Ladhani's documents that pages 1-9 and NRMA's documents at pages 7-12.
[18] Ladhani's documents at page 6 and NRMA's documents at page 9.
[19] NRMA's documents at page 46.
The medical injury report included a diagram of the accident scene and a description of the accident that was consistent with the evidence. It explained that Mrs Ladhani had been knocked by the vehicle on the right sacroiliac region causing her to fall onto her left side. It referred to injuries to the left parietal area of the skull; facial injuries that included the left infra orbital region with bruising and heavy bruising of the nose; abrasions of the elbows; blunt injuries to the knees as well as deep abrasions; and an injury to the thoracolumbar spine.
On 9 February 2018, Mrs Ladhani consulted Dr Ruthnam complaining of persistent leg swelling. On examination, Dr Ruthnam observed good circulation and that she was able to move her left foot, ankle and knee normally. She felt comfortable in the CAM boot. He referred her for diagnostic imaging of her left foot.[20]
[20] Ladhani's documents at page 64.
On 21 February 2018, Mrs Ladhani underwent a left foot X-ray by Dr Sahm Taheri, radiologist.[21] Dr Taheri reported oblique partially healed fractures through the distal thirds of the first, second, fourth and fifth metatarsal bones with interval callus formation. The fourth and fifth metatarsal fractures demonstrated mild medial displacement with no convincing evidence of interval bony healing. Visualised joints were enlocated. There was mild to moderate degenerative change of the big toe interphalangeal joint and the first TMT joint. There was a prominent plantar fascial spur.
[21] Ladhani's documents at page 76.
On 3 March 2018, Dr Ruthnam reported to Mrs Ladhani’s former lawyer confirming that he had recently been consulted by her in respect of the severe injuries she sustained in the motor accident. Dr Ruthnam reported that Mrs Ladhani’s injuries included facial bruising and swelling of the nose and left inferior orbital; bruising and swelling of the elbows; abrasions with skin loss over the olecranon; abrasions to both knees; and painful left foot. Examination revealed an underweight patient, who was fully alert and cooperative without neurological deficit. Cranials were normal; speech was slow; there was bilateral lid partial ptosis; sensation was intact; motor was intact; the neck was tender and there was spasm in the right lower left mid C3/4 with reduced left lateral rotation; shoulders were intact but tender on the left; there were no rib fractures; gross swelling to the left knee; gross swelling to the left foot and there was a deformity consistent with fracture. Mrs Ladhani was referred to the local hospital emergency department where her left foot fractures were confirmed and a CAM boot was applied. The caps CAM boot restricted movement and cause more discomfort.[22]
[22] Ladhani's documents at pages 50-51.

On 13 June 2018, Mrs Ladhani underwent a left foot X-ray by Dr Sahm Taheri, radiologist on the referral of Dr Ruthnam.[23] Dr Taheri reported interval bony healing of the oblique fractures through the first, second, fourth and fifth metatarsal shaft fractures. Persistent bony remodelling was evident and there was mild medial angulation of the fourth and fifth metatarsal fractures. The fracture line through the base of the fifth metatarsal was visualised with mildly sclerotic borders suggesting non-union and there was mild displacement. No dislocation was identified.
[23] Ladhani's documents at pages 75-76.
On 15 June 2018, Mrs Ladhani consulted Dr Ruthnam, who noted that she felt well; that her foot fractures were healing well; that the swelling had reduced; and that she was walking well in her CAM boot. Dr Ruthnam advised that she was able to drive and that she could return to work for 20 hours per week, with a review in two to three weeks to consider increasing her hours. Dr Ruthnam also noted that Mrs Ladhani complained of becoming a bit anxious, especially with multiple tasks but was able to cope. He noted that her memory seemed good. He provided her with reassurance.[24]
[24] Ladhani's documents at page 63.
On 18 June 2018, Dr Ruthnam reported to Mrs Ladhani’s former lawyer that Mrs Ladhani had made a remarkable recovery given the extent of her left foot fractures. She was able to fully weight bear. She was still receiving treatment but he deemed her fit to return to her duties part-time 20 hours per week. He also assessed her as fit to drive.[25]
[25] Ladhani's documents at page 52.
On 10 September 2018, Dr Ruthnam issued Mrs Ladhani with a certificate of capacity[26] wherein he diagnosed fractures to the left foot; soft tissue injuries to the face, elbows and knees; and an injury to the left leg as a result of the motor accident. Dr Ruthnam recommended that Mrs Ladhani avoid night driving; undergo physiotherapy to her left shoulder, elbows and knee; and consult an optometrist in three months. He commented that Mrs Ladhani had made a remarkable recovery from her left foot fractures but that she had soft tissue injuries to her left shoulder, left elbow (epicondylitis), left knee and left thigh. He opined that a TENS machine may help. Dr Ruthnam certified Ms Ladhani as having capacity to work two hours per day, five days per week from 17 September 2018. As to factors affecting her recovery, it was noted that, in general, she was improving but was suffering from a loss of confidence when on her own and had to constantly ask questions to avoid mistakes.
[26] Ladhani's documents at pages 54-56.
The employment section of the certificate of capacity dated 10 September 2018 was completed by Dr Ladhani on the instructions of Mrs Ladhani. Mrs Ladhani recorded that she was still not confident with driving; she was a bit panicky on the telephone if there was a problem she could not solve; she was walking much better; her left shoulder, left arm and left leg became painful when lifting weights of more than 2kg.
On 24 September 2018, Mrs Ladhani consulted Dr Ruthnam, who reviewed her progress and completed a motor accident report and forms.[27]
[27] Ladhani's documents at page 62.
On 14 December 2018, Mrs Ladhani consulted Dr Ruthnam, who reviewed the mechanism of the motor accident on 29 December 2018. He noted that a vehicle came on her right side and ran over her left foot causing her to fall to her left side, injuring her left arm, left side and fracturing her left foot. Mrs Ladhani complained of ongoing pain to the left shoulder, the left arm, left elbow, left hand and chest. She required massage each evening. Dr Ruthnam also noted that Mrs Ladhani had fallen onto her left outstretched hand in the motor accident. He diagnosed motor accident related soft tissue injuries and joint injuries. He requested diagnostic imaging in the form of an X-ray to the left elbow and radial head and an ultrasound of the left wrist to check for any median nerve compromise.[28]
[28] Ladhani's documents at page 61.
On 28 September 2019, Dr Ladhani prepared a report that was addressed to no one in particular.[29] He confirmed that Mrs Ladhani had sustained injuries in the motor accident on 29 December 2017.
[29] Ladhani's documents at pages 48-49.
Dr Ladhani reported that Mrs Ladhani had been run over on her right and thrown over onto the left side of her body, with the vehicle’s tyre running over her left foot, causing localised bruising, abrasions and swelling. Subsequent X-rays revealed oblique fractures of the first, second, fourth and fifth metatarsal bones in the left foot. The fourth and fifth metatarsal fractures demonstrated medial displacement. There was also a fracture through the fifth metatarsal base.
Dr Ladhani reported that Mrs Ladhani also sustained facial injuries to her nose in the form of deep bruising with nose bleed and to the left inferior orbital region; abrasions and swelling of both knees; tenderness in the neck; painful left leg; chest pain on palpation, mainly in the left upper arm and left posterior chest wall.
Dr Ladhani opined that due to “the shock to the system”,[30] Mrs Ladhani had not been able to do all that she could in the administration of his medical practice. He reported that cognitive improvement had occurred over time but that she had lost some memory and had a lot of difficulty with hearing.
[30] Ladhani's documents at page 49.
Dr Ladhani opined that the possibility of complete recovery was remote and that it was decided to retire her. He had sold his general medical practice and was working elsewhere. He opined that there was no doubt that Mrs Ladhani’s deterioration of physical health and cognitive deficit had been as a result of the motor accident. Allowing for her age and expected degeneration, it still meant that her capacity to function had been affected to a substantial extent.
On 18 October 2019, Mrs Ladhani underwent a chest X-ray by Dr Terry Lo, radiologist, on the referral of Dr Ruthnam.[31] The history provided to Dr Lo was one of pain in the left chest. Dr Lo reported degenerative changes in the thoracic spine; a slightly unfolded thoracic aorta; and linear atelectasis in the lateral aspect of the left lower lumbar field just above the costophrenic angle, suggestive of an old inflammatory process and scarring.
[31] NRMA's documents at page 51.
On 19 November 2019, Mrs Ladhani underwent an X-ray of her left knee and a CT scan of her right knee by Dr Diane Donohoe, radiologist, on the referral of Dr Ruthnam.[32] In respect of the left knee, Dr Donohoe reported changes of osteoarthritis within the knee; osteophyte formation within the knee; lateral compartment narrowed on the intercondylar view; a bone density anteriorly in the midline suggested a loose body; there were also small bony densities posteriorly; and there was no evidence of a focal lesion in bone or significant joint effusion. In respect of the right knee, Dr Donohoe reported that the medial compartment was narrowed; a small bony density in the intercondylar region was corticated and suggestive of a loose body; no evidence of a fracture or focal abnormality in bone; a low-density structure in the popliteal fossa suggested a Baker’s cyst; and no significant effusion within the knee. Dr Donohoe recommended an MRI scan if a meniscal or cartilaginous pathology was likely.
[32] NRMA's documents at pages 49-50.
On 19 May 2020, Mrs Ladhani underwent an X-ray of her left foot by Dr Lo, radiologist, on the referral of Dr Ruthnam.[33] Dr Lo reported old, healed fractures in the second, fourth and fifth distal metatarsal shafts; a deformity in the third metatarsal head, highly suggestive of Freiburg infraction; mild degenerative changes in the interphalangeal joints as well as the first metatarsophalangeal joint of the big toe; slight degenerative changes in the tarsometatarsal and metatarsal joints; a minor deformity in the base of the fifth metatarsal, suggestive of an old healed fracture; the presence of a plantar calcaneal spur; and the alignment of the metatarsals appeared acceptable.
[33] NRMA's documents at page 48.
On 10 November 2020, Mrs Ladhani consulted Dr Andrew Milne, geriatrician, on the referral of Dr Ruthnam.[34] Dr Milne recorded a background of thalassaemia minor, a motor accident in 2017 [incorrectly referred to as 2007] with multiple foot fractures, anxiety, depression and osteoarthritis. He reviewed the results of Mrs Ladhani’s blood tests in August 2020 and noted that her CT scan of the brain revealed frontal atrophy and small vessel ischaemic changes.
[34] Ladhani's documents at pages 57-58.
Dr Milne noted that Mrs Ladhani was quite traumatised after the motor accident in December 2017. She suffered extensive left and right sided facial injuries, upper and lower limb injuries and multiple fractures of her left foot. She had been left in significant pain. She often experienced intrusive flashbacks of the motor accident. She treats her pain with massage and Deep Heat. There was no loss of consciousness associated with the motor accident. Since the accident, Dr and Mrs Ladhani reported quite an abrupt decline in her cognition, affecting both her short and longer term recall as well as her executive function. She had difficulties remembering PIN numbers, performing banking duties and managing the medical practice. She retired because of these difficulties.
Dr Milne noted that Dr Ladhani reported that, prior to the motor accident, Mrs Ladhani experienced occasional lapses particularly with short term recall. Since the motor accident, she had also become very anxious and distractible. Dr Wong started her on Lithium as an adjunct to Mirtazapine two years earlier and that, since doing so, Dr Ladhani reported she was much less anxious than previously. However, anxiety was still a significant concern. Mrs Ladhani had been paranoid about cleaners and carers visiting their home and became very suspicious of their motives. There was no history of hallucinations. Mrs Ladhani commented on occasional word finding difficulties but her speech was reasonably fluent at the time of examination.
After conducting cognitive testing, Dr Milne opined that the results were suggestive of, at least, mild impairment. Mrs Ladhani’s primary deficits were in immediate and delayed recall, semantic and phonemic fluency and executive function. Dr Milne reported that Mrs Ladhani scored 3/5 on an abbreviated geriatric depression scale, which was suggestive of a significant low mood.
Dr Milne opined that the acuity of Mrs Ladhani’s cognitive changes in relationship to the motor accident were suggestive of a significant psychiatric component to her cognitive decline, although there may well be an underlying degenerative process occurring, given the steady progression of her decline. Dr Milne arranged for an MRI scan of Mrs Ladhani’s brain and repeat blood tests of her B12 and folate levels by way of further investigation. He recommended that she re-engage with her psychiatrist or a local psychiatrist and he queried the benefit of an increase in her Mirtazapine dose.
Dr Milne opined that unless there were significant changes suggestive of Alzheimer’s pathology on MRI, he would not suggest intervention with a cholinesterase inhibitor. He emphasised the importance of ongoing physical activity.
On 12 November 2020, Mrs Ladhani underwent an MRI brain scan by Dr Sohrabh Memon, radiologist.[35] Dr Memon was provided with a history of a declining cognition and possible hippocampal atrophy. Dr Memon concluded that there were mild changes of chronic small vessel ischaemic disease (Fazekas Grade 1) and parenchymal involution in an MCI-type pattern, with hippocampal involution.
[35] AD9.
On 23 November 2020, Mrs Ladhani consulted Dr Milne following the receipt of the results of her blood tests and MRI brain scan.[36] Dr Milne reported that her blood tests revealed normal B12 and folate levels, a vitamin D level of 55, a satisfactory lithium level and normal biochemistry. Dr Milne noted the findings on MRI and her medial temporal lobe atrophy (MTA) score of 3 on the left, which was more than expected given her age and was suggestive (although not diagnostic) of underlying Alzheimer’s pathology. A potential trial of a cholinesterase inhibitor was discussed but declined by Mrs Ladhani because she preferred to focus on cognitive training and regular exercise.
[36] AD8.
On 31 March 2021, Dr Ruthnam prepared a letter addressed “to whom it may concern” requesting that Mrs Ladhani be excused from jury duty. Dr Ruthnam confirmed that he had known and treated Mrs Ladhani for many years and that she had become frail with lapses in memory. He listed her motor accident related injuries as multiple metatarsal fractures; left shoulder, bilateral knees and left leg injuries; and spinal trauma.[37]
[37] Ladhani's documents at page 53.
On 19 July 2021, Mrs Ladhani consulted Dr Milne for review and reported back to Dr Ruthnam .[38] Dr Milne noted essentially normal biochemistry in recent blood tests. Dr Ladhani commented on a slight decline in her short term recall particularly in stressful situations. There had been no hallucinations or vivid dreams. Mrs Ladhani’s score on cognitive testing was the same as on 10 November 2020.
[38] AD7.
Dr Milne reported that anxiety and low mood were Dr and Mrs Ladhani’s primary concern at the consultation. There were no specific triggers for the anxiety and low mood, which could be triggered by visitors or unexpected letters. He noted that Mrs Ladhani did not sleep well. The discussion then turned to managing Mrs Ladhani’s anxiety. She denied psychologist or psychiatrist review. Pharmacological interventions including, adding a second antidepressant, Lyrica, Gabapentin or an antipsychotic. Dr Milne noted that most of those options including, Citalopram, Venlafaxine, Lyrica, Sertraline and Olanzapine had been trialled resulting in multiple side-effects. Dr Milne suggested Duloxetine as a potential option but Dr and Mrs Ladhani were very reluctant to consider further pharmacological therapy given her extensive history of adverse reactions to medications.
Dr Milne again emphasised the importance of regular physical activity and noted that Mrs Ladhani was performing self-directed exercises most days.
Dr Milne concluded that there were not too many other interventions he could offer Mrs Ladhani. He again encouraged her to re-engage with her psychiatrist because there would be no untoward effects from such an intervention. He invited Dr Ladhani to contact him if Mrs Ladhani decided to trial additional pharmacological treatment.

The medico-legal evidence

Dr James Bodel: 6 January 2020

On 6 January 2020, Mrs Ladhani consulted Dr James Bodel, orthopaedic surgeon, at the request of her former lawyer. In evidence, there is a report by Dr Bodel dated 6 January 2020.[39] I will now refer to the relevant parts of that report.
[39] Ladhani's documents at pages 38-47.
Dr Bodel took a history that, in the main, was consistent with the evidence. He recorded her current complaints to include ongoing pain in the neck and over the top of the left shoulder, aggravated by head-down posture, use of the left arm or if she rolled on her left shoulder in bed; ongoing pain in the lower back aggravated by prolonged sitting, bending, twisting or lifting; and pain over the dorsum of the left foot aggravated by prolonged standing or walking. Dr Bodel formed the view that Mrs Ladhani’s clinical complaints were quite genuine and that her injuries and their consequences were significant.
In respect of treatment, Dr Bodel noted that Mrs Ladhani is unable to take any medication due to gastric upset. He also noted that she underwent regular massage by her husband.
In respect of activities of daily living, Dr Bodel noted that she could drive an automatic motor vehicle but only for very short distances around the local area. She struggled with all household maintenance and cleaning activities. She felt that she was becoming forgetful and experiencing memory problems.
On examination of the cervical spine, Dr Bodel observed a good range of neck flexion, extension and rotation in all directions without asymmetry of neck movement.
On examination of the left shoulder, Dr Bodel observed a restricted range of shoulder movement with impingement but no instability. He observed no restriction of elbow, wrist or hand movement and that grip strength was reasonable. There was no evidence of reflex abnormality or sensory impairment of the upper limbs and no clinical sign of radiculopathy or evidence of median or ulnar nerve pathology in either upper limb.
Dr Bodel observed a restricted range of lateral bending and rotation of the thoracic spine. There was tenderness at the lumbosacral junction on the left side and guarding in that area. There was a reduced range of lateral bending to the right and left and there was asymmetry of movement in the lumbar spine. Straight leg raising was 70° on both sides limited by hamstring tightness. There was no evidence of nerve root irritability. There was wasting of the left calf which was 1.1cm smaller than the right.
Dr Bodel observed a restricted range of left ankle movement. There was weakness of resisted ankle movement. There was no instability. There was no neurological abnormality in the lower limbs.
Dr Bodel referred to the X-ray reports in respect of Mrs Ladhani’s chest, thoracic spine and lumbar spine dated 11 January 2018. He noted a fracture of the T12 vertebral body with some wedging laterally to the left hand side. It was and endplate type fracture. He noted some degenerative change at the lumbosacral junction involving the L4/5 level and spondylolisthesis at the same level.
Dr Bodel opined that Mrs Ladhani suffered a soft tissue injury to the neck, a rotator cuff injury to the left shoulder, a fracture of the T12 vertebral body, soft tissue contusions to the left side of the body, soft tissue contusions to the knees and multiple fractures in the metatarsals of the left foot. He causally related the injuries to the motor accident.
Dr Bodel opined that Mrs Ladhani required ongoing conservative treatment including regular massage and exercise, some medication as tolerated and perhaps some psychological assistance. He noted that Mrs Ladhani reported some memory loss.
Dr Bodel opined that Mrs Ladhani’s absences from employment had arisen as a consequence of the effects of the motor accident. She had no prospects of returning to her previous employment or any form of paid work. There had been a very severe restriction in her earning capacity, which will persist indefinitely. She has no residual capacity for work.
Dr Bodel opined that Mrs Ladhani’s prognosis was very guarded.
Dr Bodel assessed Mrs Ladhani’s level of whole person impairment at 19% (6% for the left upper extremity, 5% for the thoracic spine, 5% for the lumbar spine, 3% for the left ankle and 1% for the subtalar joint).

Dr Graeme Doig: 16 November 2020

On 26 October 2020, Mrs Ladhani consulted Dr Graeme Doig, consultant orthopaedic surgeon, at the request of NRMA’s lawyers. In evidence, there is a report by Dr Doig dated 16 November 2020.[40] I will now refer to the relevant parts of that report.
[40] NRMA's documents at pages 13-27.
Dr Doig took a history that was, in the main, consistent with the evidence.
Dr Doig reported Mrs Ladhani’s primary problems as being related to the left side of her neck, restricted movement in her toes, pain with difficulty extending at the non-dominant left elbow and anterior knee pain with difficulty kneeling and squatting.
Dr Doig reported that Mrs Ladhani tried not to use analgesics. She applied a heat pack intermittently. She had received no physiotherapy or psychological treatment. Her husband was primarily involved in her post injury care.
On examination of Mrs Ladhani’s cervical spine, Dr Doig observed that she was tender on the left side of the neck particularly over the trapezius muscle with reduced lateral flexion and rotation to the right and only 10° of neck extension exhibiting guarding and dysmetria. Forward flexion was preserved. She demonstrated full active movement at her shoulders.

On examination of Mrs Ladhani‘s left elbow, Dr Doig observed tenderness with 10° of fixed flexion deformity to 140° of flexion and normal pronation and supination through the forearm.
On examination of Mrs Ladhani’s knees, Dr Doig observed that the patellofemoral joints were irritable with palpable crepitus on restricted squatting. The range of motion bilaterally was 0° to 130° and both joints were stable. There was evidence of long-standing osteoarthritis of the left knee with a minor valgus deformity which was passively correctable.
On examination of Mrs Ladhani’s left foot, Dr Doig observed that there was 15° of ankle extension to 25° of flexion and normal movement at the subtalar joint. There was restricted movement at the toes with less than 10° of active extension at the metatarsophalangeal joints of the lesser four toes and also at the great toe and less than 10° of interphalangeal joint flexion at the hallux.
On examination of Mrs Ladhani’s thoraco-lumbosacral spine, Dr Doig observed no tenderness and an inability to flex to her toes with symmetrical lateral flexion and rotation. She had difficulty fully extending due to balance problems and not as a result of any spinal restrictions. Hip examination was satisfactory. Straight leg raising was full with negative nerve root tension signs and there was no focal neurological deficit of either upper or lower limbs. She had difficulty walking on her heels and toes due to balance issues.
Dr Doig provided the following diagnoses:
(a)   multiple extra-articular fractures of the metatarsals of the left foot which had united satisfactorily with permanent restrictions in toe movement;
(b)   a direct blow to the head and face resulting in bruising, which had resolved and ongoing complaints of left sided neck pain with restricted movement possibly as a result of an aggravation of pre-existing degeneration;
(c)   a soft tissue injury to the left elbow again, possibly causing aggravation of pre-existing degeneration with a lack of full extension and activity related discomfort;
(d)   bilateral anterior knee pain on a background of pre-existing degeneration with direct blows to the patellofemoral joints, and
(e)   a soft tissue injury to the lower back which appears to have resolved (plain X-rays raised the possibility of a T12 thoracic vertebral body fracture which most likely was old).
Dr Doig causally related the conditions referred to above to the motor accident.
Dr Doig opined that Mrs Ladhani’s overall prognosis from a musculoskeletal perspective was reasonably good. He noted that she did return to work two months following the incident but that she experienced problems due to anxiety, panic attacks and difficulty concentrating. She had to stop work due to her psychiatric problems. Dr Doig pointed out that her psychiatric condition was outside his area of expertise.
Dr Doig opined that, from a musculoskeletal perspective, Mrs Ladhani had a less than 5kg lifting, pushing and pulling restriction with the non-dominant left arm. She should avoid repetitive bending and twisting through her neck and may require breaks from prolonged sitting and driving. She should avoid walking on uneven ground with restricted kneeling, squatting and stair climbing. She would have problems driving a manual transmission vehicle.
Dr Doig opined that, from a purely musculoskeletal perspective, Mrs Ladhani should be able to return to a medical receptionist/practice manager position with the restrictions referred to above. An ergonomic set up would be advantageous.
Dr Doig assessed Mrs Ladhani’s level of whole person impairment at 14% for impairments to the cervico-thoracic spine, left elbow, knees and left foot.

Dr Brian Parsonage: 25 November 2021

On 23 November 2021, Mrs Ladhani consulted Dr Brian Parsonage, consultant psychiatrist, at the joint request of her current lawyer and the lawyers for NRMA. In evidence, there is a report by Dr Parsonage dated 25 November 2021.[41] I will now refer to the relevant parts of that report.
[41] Ladhani's documents at pages 157-166.
After administering simple cognitive testing, Dr Parsonage opined that Mrs Ladhani exhibited mild cognitive impairment.
Dr Parsonage listed and reviewed the documentation in his possession[42] which included Mrs Ladhani’s statement dated 28 August 2021 and Dr Ladhani’s first statement.
[42] Ladhani's documents at pages 160-161.
Dr Parsonage took a history that was, in the main, consistent with the evidence.
On mental state examination, Dr Parsonage observed that Mrs Ladhani was an elderly lady, who understood the purpose of the interview and was cooperative. He described her mood as intense with mild to moderate anxiety and depression and little reactivity of her mood. She did not exhibit psychomotor or agitation or retardation, nor did she have signs or symptoms of psychosis. She appeared to have some mild cognitive impairment on the basis of preliminary clinical testing, which was limited by the fact that the assessment was conducted by audio-visual link.
Dr Parsonage opined that, because Mrs Ladhani appeared to have some cognitive impairment with memory difficulties, he did not consider that her history was reliable and there was only limited relevant documentation. He opined that she described anxiety symptoms following the motor accident at the level of, at least, an adjustment disorder and possibly, post-traumatic stress disorder. However, as some of her symptoms, such as poor concentration, may be due to an unrelated neurocognitive disorder, formal neuropsychological testing and assessment is required before a definitive diagnosis could be made.
Dr Parsonage opined that Mrs Ladhani also described significant symptoms of depression. However, it appeared that these were secondary to her inability to function and her memory problems preceded the worst of her depression rather than there being an indication that she had suffered or was suffering from a severe depressive disorder which would give rise to cognitive impairment. However, if Mrs Ladhani had developed post-traumatic stress disorder and/or a recurrence of a previous depressive disorder, this would have contributed to her inability to continue working and her inability to work almost certainly caused an exacerbation or recurrence of her depression.
In respect of Mrs Ladhani’s restrictions and limitations in her work activities following the motor accident, Dr Parsonage opined, on the information available to him, that she was unable to work primarily because of loss of confidence and cognitive impairment, which may or may not be related to the motor accident.
Dr Parsonage opined that, if Mrs Ladhani has a progressive neurocognitive disorder, then her capacity for employment will be progressively reduced. It already appeared that she was incapable of working. She was not fit for any employment.
Dr Parsonage opined that Mrs Ladhani had surprisingly little new psychiatric or psychological treatment, given her complaints consistent with possible post-traumatic stress disorder and a significant episode of depression in, at least, 2018. Following neuropsychological assessment, it may be appropriate for her to undergo further psychiatric treatment, which could improve her prognosis. If on the other hand, she has a progressive neurocognitive disorder, then her condition would be expected to deteriorate.

Associate Professor Jennifer Batchelor: 7 March 2022

On 16 February 2022, Mrs Ladhani consulted Associate Professor Jennifer Batchelor, consultant neuropsychologist, at the joint request of her current lawyer and the lawyers for NRMA.[43] In evidence, there is a report by Associate Professor Batchelor dated 7 March 2022. I will now refer to the relevant parts of that report.
[43] Ladhani’s documents at pages 169-182.
Associate Professor Batchelor provided a list of documents that were available to her at the time of the assessment of Mrs Ladhani.[44] Without listing all the documents, they included the initial statements of Dr and Mrs Ladhani, Dr Ruthnam’s clinical records, medical imaging reports, the reports of Dr Ladhani, Dr Ruthnam, Dr Milne, Dr Bodel, Dr Doig and Dr Parsonage.
[44] Ladhani's documents at page 170 at [1].
Associate Professor Batchelor provided a detailed history from the documents in her possession. The history was consistent with the evidence.
Associate Professor Batchelor administered the following tests in order to examine Mrs Ladhani’s present level of intellectual functioning; her processing speed; her working memory; her ability to learn and retain information; her verbal fluency; her mental flexibility; her emotional status; and any attempt on her part to exaggerate problems:
(a)   Test of Premorbid Functioning;
(b)   Wechsler Adult Intelligence Scale – fourth edition;
(c)   Wechsler Memory Scale – fourth edition;
(d)   California Verbal Learning Test – second edition;
(e)   Oral Trail Making Test;
(f)    Delis-Kaplan Executive Function System: Verbal Fluency Test;
(g)   Clock Drawing, and
(h)   Depression, Anxiety, Stress Scales.
Associate Professor Batchelor reported that the above tests enabled examination of the functions known to be particularly susceptible to disruption in association with neurological or psychiatric disorder, as well as those that have been demonstrated to be resistant to the effects of those conditions.
Associate Professor Batchelor reviewed and explained the outcome of the test results in detail.
Associate Professor Batchelor opined that the available evidence provided no indication that Mrs Ladhani sustained a traumatic brain injury as a result of the motor accident. There was no record of an abnormal Glasgow Coma Scale score. Mrs Ladhani’s evidentiary statement included a detailed description of the immediate aftermath of the accident and thus, there was also no indication of a period of post-traumatic amnesia. Further, there was no radiological evidence of trauma related intracranial pathology. None of the medical practitioners by whom she was examined in the early post-injury stages considered a CT or MRI scan of the brain to be indicated.
Associate Professor Batchelor opined that Mrs Ladhani’s neuropsychological assessment revealed evidence of significant and pervasive cognitive abnormalities. On tests of working memory, processing speed, verbal reasoning, recent memory, mental flexibility and mental control, Mrs Ladhani scored in the borderline to impaired range and significantly below estimated premorbid levels.
Associate Professor Batchelor opined that Mrs Ladhani’s responses on a subjective questionnaire were indicative of severe to extremely severe depression, anxiety and stress. It was very probable that psychological distress was adversely affecting Mrs Ladhani’s cognition. However, available evidence suggested that, if anything, her cognitive deficits were becoming progressively more apparent over time. That steady decline may be indicative of neurodegenerative disorder. As there is no evidence of a traumatic brain injury having been incurred as a result of the motor accident, it can be concluded that any neurodegenerative disorder exists independent of the subject incident.
Associate Professor Batchelor reported that, although the available evidence strongly suggested that Mrs Ladhani had sustained a psychological injury as a result of the motor accident, whether or not that is the case was outside her area of expertise and ultimately, was a matter for psychiatric opinion.
Associate Professor Batchelor opined that, in terms of her cognition, Mrs Ladhani is unfit for any form of employment as her cognitive deficits are well in excess of those that any employer would realistically be expected to accommodate. Given that there was no evidence of a traumatic brain injury having been sustained in the motor accident, Mrs Ladhani’s cognitive deficits are most likely to reflect, at least in part, the effects of a psychological disorder. The relationship between her psychological disorder in the motor accident is a matter for psychiatric opinion.

Dr Brian Parsonage: 17 March 2022

On 17 March 2022, Dr Parsonage provided a supplementary report commenting on the report of Associate Professor Batchelor dated 7 March 2022 at the joint request of the parties’ lawyers.[45] I will now refer to the relevant parts of that supplementary report.
[45] Ladhani's documents at pages 167-168.
Dr Parsonage noted that there was general agreement that there was no indication that Mrs Ladhani had suffered a traumatic brain injury as a result of the motor accident.
Dr Parsonage noted Associate Professor Batchelor’s opinion that Mrs Ladhani’s cognitive impairments were most likely due, at least in part, to psychological distress and that it was very probable that psychological distress was adversely affecting her cognition. Dr Parsonage agreed with Associate Professor Batchelor’s assessment. However, he observed that she spent considerable time ruling out a traumatic brain injury but did not appear to have addressed the crucial question as to whether Mrs Ladhani was suffering from a neurodegenerative disorder such as dementia.
Dr Parsonage reported that Associate Professor Batchelor’s report had not caused him to alter the opinions he expressed in his report dated 25 November 2021, largely because the issue of whether her cognitive impairment is the result of a progressive neurological disorder or a psychiatric condition, which may or may not be caused by the motor accident, or a combination of the two, has not been resolved by her report.
Dr Parsonage opined that, overall, the most likely possibility is that Mrs Ladhani did suffer an anxiety disorder resulting from the trauma of the motor accident. It was either an adjustment disorder with anxiety or post-traumatic stress disorder. She has subsequently suffered a depressive disorder likely related to the loss of her ability to function, which could relate to her psychological injuries from the motor accident with a strong suggestion that there is also an underlying progressive neuropsychological disorder, such as dementia. However, Dr Parsonage noted that significant questions regarding diagnosis and causation remained unanswered.

Submissions

NRMA’s submissions

NRMA conceded that Mrs Ladhani sustained acute orthopaedic injuries. However, NRMA did not accept that Mrs Ladhani’s cognitive decline was caused by the motor accident. Mrs Ladhani bears the burden to prove that such an injury or disability was caused by the motor accident. NRMA submitted that Mrs Ladhani had failed to discharge that burden.
NRMA submitted that a particular difficulty with Mrs Ladhani’s claim was that she has received the majority of her treatment from her husband. There was no clear treating record of the development of her symptomology.
NRMA submitted that the Commission would prefer the evidence of Dr Doig over that of Dr Bodel. Dr Bodel based his opinion in respect of earning capacity on the incorrect history that Mrs Ladhani had never returned to work after the motor accident.
NRMA submitted that it was Mrs Ladhani’s evidence that she had received treatment for depression from her husband and a psychiatrist prior to the motor accident and that she continued on antidepressants and lithium up until the time of the motor accident.
NRMA submitted that Mrs Ladhani emphasised the absence of any neurodegenerative disorder in the pre-motor accident clinical material. However, this was unsurprising because she was primarily treated by her husband. She placed significance on a 2016 scan that failed to demonstrate any changes consistent with dementia. NRMA submitted that the absence of a neurocognitive disease in 2016 did not assist significantly in determining the cause of her confusion, which was first reported in 2020. Significantly, Dr Ladhani advised Dr Milne that Mrs Ladhani had experienced lapses in short-term memory prior to the motor accident. NRMA submitted that it would be accepted that her cognition had commenced a gradual decline prior to the motor accident.
NRMA noted that the first certificate of capacity was issued on 19 January 2018. Dr Ruthnam recorded that Mrs Ladhani had suffered a fracture to the left foot, soft tissue injury to the face, elbows and knee. Dr Ruthnam reported that she had made a remarkable recovery from her fractures. Dr Ruthnam recommended that Mrs Ladhani refrain from night driving but otherwise certified that she was able to perform activities to tolerance. No reference was made by Dr Ruthnam to any cognitive or psychiatric complaints.
On 3 March 2018, Dr Ruthnam reported that, on examination, Mrs Ladhani was fully alert, cooperative and without neurological deficit. Having regard to that report, NRMA submitted that Mrs Ladhani’s cognitive impairment was not evident in the months following the motor accident.
On 18 June 2018, Dr Ruthnam reported Mrs Ladhani’s remarkable recovery in respect of her orthopaedic injuries; deemed her fit to return to part-time duties 20 hours per week; and assessed her fit to drive. There were no references to any cognitive issues.
On 14 December 2018, Dr Ruthnam reported on Mrs Ladhani’s improvement in respect of her orthopaedic injuries and disabilities. Again, there were no references to any psychiatric or cognitive complaints.
NRMA submitted that, thereafter, there was an absence of treating doctor material to verify Mrs Ladhani’s reports. There was a significant temporal gap between the date of the motor accident and the first reports of cognitive symptoms. Despite Mrs Ladhani’s assertion that no inference can be drawn from the absence of treatment during this period because her injuries were managed by her husband, the absence of clinical material verifying the onset of psychiatric or cognitive symptoms would cause the Commission some concern.
On 10 November 2020, Mrs Ladhani, with her husband, consulted Dr Milne and reported a significant decline in her cognition following the motor accident. Dr Milne opined that Mrs Ladhani’s cognitive decline was suggestive of a significant psychiatric component, although, there may well be an underlying degenerative process occurring given its steady progression. In coming to such a conclusion, Dr Milne relied on the history provided by Mrs Ladhani.
NRMA submitted that there were areas in the history provided that appeared inconsistent with the contemporaneous material. In particular, Dr Milne recorded that Mrs Ladhani had not driven since the motor accident. However, on 15 June 2018, Dr Ruthnam recorded that driving was okay and that her memory was good.
On 31 March 2021, Mrs Ladhani consulted Dr Ruthnam requesting assistance in seeking exemption from jury duty. Dr Ruthnam indicated that Mrs Ladhani was frail with lapses in memory. NRMA submitted that, although far from conclusive, Dr Ruthnam’s report suggested a connection between Mrs Ladhani’s age, frailty and cognitive decline.
On 25 November 2021, Dr Parsonage reported that Mrs Ladhani had a mild cognitive impairment. NRMA submitted that, given Mrs Ladhani’s conceded cognitive complaints, some hesitation would need to be adopted when relying on her account of events, particularly, post-motor accident. Dr Parsonage opined that some of Mrs Ladhani’s symptoms may be due to an unrelated neurocognitive disorder and recommended neuropsychological testing.
Associate Professor Batchelor conducted neuropsychological testing on Mrs Ladhani. On 7 March 2022, Associate Professor Batchelor reported that there was no evidence to suggest that Mrs Ladhani had sustained a traumatic brain injury in the motor accident. However, Associate Professor Batchelor did not determine whether Mrs Ladhani had any organic brain injury which was contributing to her cognitive decline.
On 17 March 2022, Dr Parsonage, having reviewed the report of Associate Professor Batchelor, reported that his opinion remained unchanged because Associate Professor Batchelor had not commented on whether Mrs Ladhani had a concurrent diagnosis of dementia. However, Dr Parsonage observed deficits were becoming progressively more apparent over time and that this was indicative of neurodegenerative disorder independent of the motor accident.

I accept that Mrs Ladhani was fit and healthy for her age prior to the motor accident. I accept that she had a very busy and fulfilling lifestyle prior to the motor accident. She was the office manager of her husband’s medical practice and she had a social life that included regular golfing and daily walking. I accept that she was able to go about her busy lifestyle despite her pre-existing diagnosis of depression without any issue prior to the motor accident.
I accept the unchallenged and compelling evidence of Ms Harrison, who had known Mrs Ladhani for over 40 years. She described Ms Ladhani as a very happy positive person mentally, very bright with an aptitude for mathematics prior to the motor accident.
Mrs Ladhani’s evidence was that, shortly after the motor accident, she began experiencing flashbacks about it and noticed that she had become more and more withdrawn. She did not feel like herself. She first noticed issues with her memory when she returned to work in the medical practice in about mid-2018. She suffered a loss of confidence because she was struggling to perform tasks that she had previously found very easy. She could not concentrate. She made a lot of mistakes. At times, she was very forgetful and felt vague.
Mrs Ladhani’s evidence was that, as time passed, she became more and more depressed as a result of the ongoing pain and the difficulties she experienced in carrying out her duties as a practice manager. She experienced panic attacks whilst working at reception.
Dr Ladhani’s evidence was that he noticed a significant change in Mrs Ladhani following the motor accident. He observed that she had become withdrawn and lost her confidence. Based on his observations and treatment of Mrs Ladhani, Dr Ladhani concluded that she had become very depressed and that she was far worse than she had been prior to the motor accident in respect of her depression.
Dr Ladhani’s evidence was that when Mrs Ladhani returned to work following the motor accident, he observed that she really struggled with day-to-day tasks in the medical practice that she had previously performed with ease and great efficiency prior to the motor accident. He observed her to panic when someone asked her a question.
Ms Harrison’s evidence was that, after returning to work following the motor accident, Mrs Ladhani really struggled. She observed a very significant decline in her physical and mental health. At work, she would complain of being in a lot of pain, that she felt awful and that her legs were aching. She appeared very tired a lot of the time. When she took breaks, she would often just fall asleep. Ms Harrison observed her forgetting things and making mistakes. She even struggled to remember long-standing patients’ names. Ms Harrison formed the view that Mrs Ladhani was simply unable to cope with her work anymore.
I agree with NRMA’s submission that there was no clear medical treating record of the development of Mrs Ladhani’s cognitive and psychological symptomology in the clincal records of Dr Ruthnam (there were no clincal records from Dr Ladhani). However, I do have the benefit of Mrs Ladhani’s evidence, Dr Ladhani’s evidence and the unchallenged corroborative evidence of Ms Harrison, which shorten the temporal gap in the medicine between the motor accident and the first consultation with Dr Milne.
Histories in medical records are often used to attack the credit of a claimant. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the claimant now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga[47]; and applied in King v Collins[48] and Mastronardi v State of New South Wales[49]. Inconsistencies between a party’s evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[50]
[47] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
[48] King v Collins [2007] NSWCA 122.
[49] Mastronardi v State of New South Wales [2009] NSWCA 270.
[50] Mason v Demasi [2009] NSWCA 227.
Dr Ruthnam’s clincal records should not be overly scrutinised as they were not compiled with this claim in mind.
I acknowledge that caution must be taken when relying on clinical records. I have exercised caution in this regard, particularly in respect of the clinical records produced by Dr Ruthnam and I have considered the evidence relating to the dispute that any cognitive decline was caused by the motor accident and the evidence in respect of any psychological injury.
On 10 November 2020, Dr Milne reported that Mrs Ladhani was quite traumatised after the motor accident. He also noted that since the motor accident, Dr and Mrs Ladhani reported quite an abrupt decline in her cognition, affecting both her short and longer term recall as well as her executive function. She had difficulties remembering PIN numbers, performing banking duties and managing the medical practice. Dr Ladhani reported that, prior to the motor accident, Mrs Ladhani had experienced occasional lapses particularly with short term recall.
After conducting cognitive testing, Dr Milne opined that the results were suggestive of, at least, mild impairment. Mrs Ladhani’s primary deficits were in immediate and delayed recall, semantic and phonemic fluency and executive function. Dr Milne opined that the acuity of Mrs Ladhani’s cognitive changes in relationship to the motor accident were suggestive of a significant psychiatric component to her cognitive decline, although there may well be an underlying degenerative process occurring, given the steady progression of her decline.
An MRI brain scan on 12 November 2020 demonstrated mild changes of chronic small vessel ischaemic disease (Fazekas Grade 1) and parenchymal involution in an MCI-type pattern, with hippocampal involution.
On 23 November 2020, Dr Milne opined that the findings on the MRI brain scan were suggestive but not diagnostic of underlying Alzheimer’s pathology.
On 25 November 2021, after administering simple cognitive testing, Dr Parsonage opined that Mrs Ladhani exhibited mild cognitive impairment. He opined that she described anxiety symptoms following the motor accident at the level of, at least, an adjustment disorder and possibly, post-traumatic stress disorder. However, as some of her symptoms, such as poor concentration, may be due to an unrelated neurocognitive disorder, formal neuropsychological testing and assessment was required before a definitive diagnosis could be made.
Dr Parsonage opined that Mrs Ladhani also described significant symptoms of depression that appeared to be secondary to her inability to function and that her memory problems preceded the worst of her depression rather than there being an indication that she had suffered or was suffering from a severe depressive disorder which would give rise to cognitive impairment. However, if Mrs Ladhani had developed post-traumatic stress disorder and/or a recurrence of a previous depressive disorder, this would have contributed to her inability to continue working and her inability to work almost certainly caused an exacerbation or recurrence of her depression.
On 7 March 2022, Associate Professor Batchelor reported that the formal neuropsychological testing and assessment of Mrs Ladhani provided no indication that she had sustained a traumatic brain injury as a result of the motor accident and revealed evidence of significant and pervasive cognitive abnormalities. Associate Professor Batchelor opined that Mrs Ladhani’s cognitive impairments were most likely due, at least in part, to psychological distress but deferred to a psychiatric opinion as to whether there was a relationship with the motor accident.
On 17 March 2022, Dr Parsonage reported that he agreed with Associate Professor Batchelor’s assessment. However, he observed that she spent considerable time ruling out a traumatic brain injury but did not appear to have addressed the crucial question as to whether Mrs Ladhani was suffering from a neurodegenerative disorder such as dementia.
Dr Parsonage opined that, overall, the most likely possibility was that Mrs Ladhani did suffer an anxiety disorder resulting from the trauma of the motor accident. It was either an adjustment disorder with anxiety or post-traumatic stress disorder. She subsequently suffered a depressive disorder, likely related to the loss of her ability to function, which could relate to her psychological injuries from the motor accident with a strong suggestion that there was also an underlying progressive neuropsychological disorder, such as dementia. However, Dr Parsonage noted that significant questions regarding diagnosis and causation remained unanswered.
I accept Associate Professor Batchelor’s opinion that Mrs Ladhani had not sustained a traumatic brain injury as a result of the motor accident.
Accordingly, I am not satisfied on the balance of probabilities to a degree of actual persuasion or affirmative satisfaction that Mrs Ladhani sustained a traumatic brain injury as a result of the motor accident.
There is insufficient medical evidence to satisfy me on the balance of probabilities to a degree of actual persuasion or affirmative satisfaction that Mrs Ladhani’s cognitive decline was directly caused by the motor accident.
Despite Dr Parsonage’s observations that significant questions regarding diagnosis and causation remained unanswered, I am satisfied that, on the balance of probabilities to a degree of actual persuasion or affirmative satisfaction, that Mrs Ladhani sustained an anxiety disorder resulting from the trauma of the motor accident in the form of either an adjustment disorder with anxiety or post-traumatic stress disorder. She subsequently suffered a depressive disorder, likely related to the loss of her ability to function, which related to her psychological injuries from the motor accident. I am satisfied that the psychological impact of the motor accident referred to above contributed to the decline in Mrs Ladhani’s memory and concentration.
There is insufficient medical evidence to satisfy me on the balance of probabilities to a degree of actual persuasion or affirmative satisfaction that Mrs Ladhani had an underlying progressive neuropsychological disorder. Dr Parsonage’s “strong suggestion” that there was also an underlying progressive neuropsychological disorder, such as dementia, fell short in that regard in the absence of an opinion on point by Associate Professor Batchelor. There had been no diagnosis by any medical practitioner in this regard. At best, the evidence was inconclusive. Accordingly, I reject Mrs Ladhani’s submission that the motor accident significantly aggravated any asymptomatic neuropsychological degenerative disease.
Having considered the medical and other evidence referred to above, I find that Mrs Ladhani suffered the following injuries in the motor accident:
(a)   multiple fractures in the left foot identified in medical imaging as fractures of the distal shafts of the first, second, fourth and fifth metatarsals and a transverse fracture through the base of the fifth metatarsal; the fractures through the distal fourth and fifth metatarsal were slightly displaced and angulated, whilst the other fractures were undisplaced.
(b)   a direct blow to the head and face resulting in bruising, which had resolved and ongoing complaints of left sided neck pain with restricted movement possibly as a result of an aggravation of a pre-existing degenerative condition;
(c)   a soft tissue injury to the left elbow, causing an aggravation of pre-existing degeneration with a lack of full extension and activity related discomfort;
(d)   bilateral anterior knee pain on a background of pre-existing degeneration with direct blows to the patellofemoral joints;
(e)   a soft tissue injury to the lower back, now resolved, and
(f)    an anxiety disorder resulting from the trauma of the motor accident in the form of either an adjustment disorder with anxiety or post-traumatic stress disorder and a subsequent depressive disorder.
I find that Mrs Ladhani suffers the following ongoing pain, symptoms, difficulties, disabilities and restrictions as a result of the injuries she sustained in the motor accident:
(a)   severe headaches;
(b)   pain and restriction of movement in the neck radiating into the left shoulder;
(c)   pain and weakness in the left arm (elbow);
(d)   pain and weakness in the left leg (knee);
(e)   pain in the right knee;
(f)    inability to sit for prolonged periods without pain;
(g)   inability to stand for prolonged periods without pain;
(h)   inability to walk on uneven surfaces without assistance;
(i)    inability to ascend and descend stairs without assistance;
(j)    difficulty performing pre-accident domestic chores including, cleaning, washing, ironing, vacuuming, cleaning windows and cleaning bathrooms;
(k)   inability to attend to the gardening, except for weeding;
(l)    difficulty driving or travelling in a motor vehicle;
(m)     inability to play golf;
(n)   inability to go on her pre-injury daily walks by way of exercise;
(o)   flashbacks and nightmares about the motor accident;
(p)   difficulty sleeping because of the pain referred to above and nightmares;
(q)   low mood;
(r)   loss of confidence;
(s)   significant memory problems (forgetfulness) and confusion, particularly when not rested or taking pain relieving or sedative medication;
(t)    panic attacks;
(u)   hypervigilance;
(v)   social isolation, and
(w)     feelings of worthlessness.

DAMAGES FOR NON-ECONOMIC LOSS

Having reviewed the evidence and determined the extent of Mrs Ladhani’s injuries and disabilities caused by the motor accident, I now turn to the assessment of damages for non-economic loss.

The legislation and legal principles

Section 1.4 of the MAI Act defines non-economic loss as:
(a)   pain and suffering;
(b)   loss of amenities of life;
(c)   loss of expectation of life, and
(d)   disfigurement.
Section 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
The parties have agreed that the threshold imposed by s 4.11 of the MAI Act has been satisfied and that Mrs Ladhani is entitled to damages for non-economic loss.
Section 4.13 of the MAI Act provides for the maximum amount that may be awarded for non-economic loss, such amount is adjusted annually by operation of s 4.22 of the MAI Act. The applicable maximum amount is the amount as at the date the award is made, in this case, $595,000.
The assessment of non-economic loss damages is conducted according to the conventional common law principles of full compensation with the only restraint being the maximum amount referred to above.[51]
[51] Hodgson v Crane [2002] NSWCA 276; Nominal Defendant v Lane [2004] NSWCA 405 at [45]; Brown v Lewis [2006] NSWCA 87 at [20].
The amount of damages for non-economic loss damages must be fair and reasonable compensation for the injuries received and the disabilities caused.

Submissions

NRMA’s submissions

NRMA conceded that Mrs Ladhani is entitled to damages for non-economic loss but disputed the claim as quantified by her.
NRMA submitted that Dr Doig opined that Mrs Ladhani had a lifting restriction of 5kg, difficulties with prolonged sitting and driving, stair climbing and squatting. NRMA submitted that such restrictions must be assessed in the context of her age and the activities that she was likely to engage in but for the motor accident, having regard to her husband’s own restrictions.
NRMA referred to the findings of Dr Bodel, who reported that Mrs Ladhani was a frail lady of 77 years and that, in addition to any motor accident related conditions, she had some longstanding degenerative changes in her hands. NRMA submitted that, whilst Mrs Ladhani was an active individual in the years prior to the motor accident, the references to frailty throughout the medical evidence tended against the assertion that she would have been able to engage in such high levels of activity but for the motor accident.
NRMA did not dispute that Mrs Ladhani sustained acute orthopaedic injuries or that she had an interest in golf and walking prior to the motor accident.
NRMA submitted that Mrs Ladhani’s disabilities must be assessed in the context of a woman whose health was deteriorating despite the motor accident and would have continued to be limited by reason of her unrelated neurodegenerative disorder.
NRMA submitted that an appropriate allowance for non-economic loss damages is $135,000.

Mrs Ladhani’s submissions

Mrs Ladhani submitted that, based on the principles enunciated in Reece v Reece[52] (Reece), the Commission must consider Mrs Ladhani’s age as one of the relevant factors in determining the quantum of economic loss.
[52] Reece v Reece [1994] NSWCA 259.
Mrs Ladhani submitted that, based on the Cumpston Sarjeant Pty Limited actuarial table of median life expectancies, a female aged 80 years has a future life expectancy of 10.62 years. There was no other evidence before the Commission that would suggest that there has been any shortening of Mrs Ladhani’s life expectancy.
Mrs Ladhani was fit and healthy for her age prior to the motor accident. She has suffered significant physical and psychological injuries and disabilities as a result of the motor accident, which have dramatically affected her quality and enjoyment of life. She has experienced considerable ongoing physical pain and psychological trauma for the past five years and will continue to do so for, at least, another 10 years based on her life expectancy. Having regard to Mrs Ladhani’s age, these disabilities are now likely to become worse as she continues to age. She can no longer enjoy recreational pursuits such as walking and golf. She has lost her career as a medical practice manager, which she enjoyed.
Mrs Ladhani submitted that NRMA’s allowance for non-economic loss damages is manifestly inadequate having regard to her age, past and future pain and suffering and loss of enjoyment of life. Factoring in all of the above, a fair and reasonable amount for non-economic loss damages is $250,000.

Consideration and findings

The principles adopted in Reece do not apply to claims under the Motor Accidents Compensation Act 1999 or the MAI Act, where damages are not assessed by reference to a proportion of a most extreme case.[53] However, age is but one factor in assessing non‑economic loss damages. Advanced age does not, of itself, necessitate a reduction in the award of non-economic loss damages. In my assessment of non-economic loss damages, I have taken into account Mrs Ladhani’s age as one factor in my assessment.
[53] RACQ Insurance Ltd v Motor Accidents Authority (NSW) (No 2) (2014) 67 MVR 551 per Campbell J.
Prior to the motor accident, Mrs Ladhani was reasonably fit and healthy for a person of her age. She worked full-time in Dr Ladhani’s medical practice as the practice manager. She usually played golf twice a week. She went on walks on a daily basis. I accept that Mrs Ladhani led a busy and fulfilling lifestyle prior to the motor accident despite her pre-existing diagnosis of depression.
Mrs Ladhani suffered the life-changing physical and psychological injuries and resultant ongoing symptoms, disabilities, difficulties and restrictions referred to in my findings above, which have greatly impacted her ability to participate and enjoy the activities of daily life and the social, leisure and work activities in which she was involved prior to the motor accident.

Mrs Ladhani was 75 years of age at the time of the motor accident. She is now aged 80 years. She has endured the considerable ongoing physical pain and psychological symptoms caused by the motor accident for almost five years. On the Medium Life Expectancy Tables, Australia, 2020, she is likely, on the balance of probabilities, to experience another 10 years of the significant physical and psychological injuries and resultant ongoing symptoms, disabilities, difficulties and restrictions referred to in my findings.
The assessment of non-economic loss damages is conducted according to the conventional common law principles of full compensation with the only restraint being the maximum amount of $595,000. The amount of damages for non-economic loss damages must be fair and reasonable compensation for the injuries received and the disabilities caused. I do not find NRMA’s assessment of non-economic loss damages to be fair and reasonable compensation in the circumstances of this case.
I assess Mrs Ladhani’s fair and reasonable compensation for non-economic loss as $220,000.

DAMAGES FOR PAST LOSS OF EARNINGS OR PAST LOSS OF EARNING CAPACITY

The legislation and legal principles

In cases such as Medlin v State Government Insurance Commission[54] and Husher v Husher,[55] the High Court of Australia confirmed that the fundamental questions to be determined in a case such as this are whether Mrs Ladhani has sustained a loss or diminution in her earning capacity and if so, whether that loss or diminution will result in economic loss.
[54] Medlin v State Government Insurance Commission [1995] HCA 5.
[55] Husher v Husher [1999] HCA 47.
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 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.
There are three questions to be answered in assessing income loss:
(a)   what was the claimant’s income-earning capacity at the time of injury?
(b)   to what extent was it impaired by the injury?
(c)   to what extent was the impairment productive of income loss?

Submissions

NRMA’s submissions

NRMA did not dispute that, at the time of the motor accident, Mrs Ladhani worked 40 hours per week as the practice manager of her husband’s medical practice. NRMA did not dispute that, at the time of the motor accident, the claimant was paid $919 per week for her work as practice manager.
NRMA did not dispute that Mrs Ladhani was off work following the motor accident from 29 December 2017 to 17 June 2018 and did not dispute her claim of $22,441.98 for that period.
Mrs Ladhani was certified fit to work 20 hours per week from June 2018 and she asserted that she returned to work between June 2018 and 26 February 2019. NRMA submitted that, although the evidence suggested that she was not exerting her assessed capacity, it did not dispute Mrs Ladhani’s claimed loss for that period, namely, $29,523.
NRMA submitted that Mrs Ladhani would not have continued to work after her husband sold his medical practice on or about 28 February 2019. NRMA disputed the assertion or suggestion that the only reason that the medical practice was sold was because of Mrs Ladhani’s injuries.
Whilst Dr Ladhani and Mrs Ladhani may not have had concrete plans to sell the medical practice prior to the motor accident, NRMA submitted that the practice would have closed in 2019 despite the motor accident. Dr Ladhani had injured his back in December 2017 and developed further vascular complications which affected his leg, causing him to have surgery in November 2019. NRMA submitted that, at the latest, Mrs Ladhani’s damages would extend until the date that Dr Ladhani was required to retire due to his medical condition.
NRMA submitted that Mrs Ladhani appeared to accept that, by the end of 2019, her husband would have retired but asserted that she would have found alternative work in the industry. NRMA observed that Mrs Ladhani had spent 40 years working exclusively with her husband and it would be accepted that her most likely circumstances but for the motor accident were that she would have retired with her husband.
NRMA submitted that Mrs Ladhani would not have had the capacity to find alternative employment but for the motor accident. She had certain client skills that would have been desirable to a prospective employer. However, NRMA maintained that, having regard to her skills and experience, she would have struggled to find suitable work in Coffs Harbour.
Regardless, NRMA submitted that the reason that Mrs Ladhani was no longer working was as a result of her cognitive decline which was unrelated to the motor accident. Despite her motor accident related injuries, she retained the capacity to return to the workforce.
NRMA stated that it allowed superannuation as claimed on any assessed loss.

Mrs Ladhani’s submissions

Mrs Ladhani turned 80 years of age prior to the assessment conference, being her pre-motor accident intended retirement date. Accordingly, her claim for economic loss was restricted to the past.
NRMA accepted Mrs Ladhani’s loss of earnings from 29 December 2017 to 28 February 2019 as claimed.
NRMA disputed Mrs Ladhani’s claimed loss of earnings from 1 March 2019 to 26 February 2022.
Dr Ladhani sold his medical practice on or about 28 February 2019. There is no evidence to support NRMA’s assertion that Mrs Ladhani’s employment would have ended when her husband sold his practice, irrespective of the motor accident. Mrs Ladhani’s evidence and that of Dr Ladhani is entirely to the contrary. Whilst Dr Ladhani had an accident himself, he was not incapacitated from working. Dr Ladhani’s work as a general practitioner was largely sedentary and he kept working after his medical practice was sold.
Mrs Ladhani submitted that, under s 4.7 of the MAI Act, the Commission would accept that her most likely future circumstances but for her motor accident related injuries were that she would have continued working as the full-time practice manager until the age of 80 years. The correct question to pose is what effect both Mrs Ladhani’s physical and psychological injuries had on her earning capacity.
Mrs Ladhani submitted that she was her husband’s “right hand” in assisting with the management of the medical practice. She was unable to cope with her workload when she returned to work after the motor accident due to ongoing pain and psychological problems. She ceased work in December 2018. Mrs Ladhani’s incapacity to work from a physical and psychological perspective was supported by Dr Bodel and Dr Parsonage respectively.
Mrs Ladhani submitted that she ceased work well before a decision was made to sell the medical practice. Dr Ladhani could not manage the practice on his own and as such, a decision was made to sell it. But for Mrs Ladhani’s incapacity for work following the motor accident, there was no reason why the practice would not have continued to thrive with her assistance. Even if the practice was sold, Mrs Ladhani, as a very experienced medical practice manager, could have sought employment with other medical practices, as her husband did, such as with the GP Super Clinic in Coffs Harbour. Mrs Ladhani’s ability to speak fluent Hindi, Kutchi, Gujarati and Swahili would have been very valuable to another practice, given that there is a very large Indian and African refugee community in these areas.
NRMA submitted that Mrs Ladhani had some partial capacity to work based on the assessment of Dr Doig. Dr Doig only dealt with Mrs Ladhani’s physical disabilities and not her psychological disabilities. So, Dr Doig’s opinion as to work capacity can be discounted for this and previously stated reasons. Bearing in mind the principles in Mead v Kerney[56] (Mead), that notwithstanding a theoretical earning capacity, there must be a practical assessment of the likelihood of Mrs Ladhani, in fact, obtaining such jobs. NRMA bears the onus in this regard.
[56] Mead v Kerney [2012] NSWCA 215 at [24].
Mrs Ladhani submitted that she was in protected employment with her husband. Having regard to her age, experience and ongoing pain and physical and psychological limitations arising from the motor accident, the overall practical effect of all her injuries was that her earning capacity was effectively destroyed. The claim for past economic loss is reasonable, consistent with the evidence and ought to be allowed. The claims for past loss of superannuation are based on 11% of the past net loss of earnings and ought to be allowed as claimed.

Consideration and findings

There was no dispute that, at the time of the motor accident, Mrs Ladhani worked 40 hours per week as the practice manager of Dr Ladhani’s medical practice.
There was no dispute that, at the time of the motor accident, Mrs Ladhani was paid $919 net per week for her work as a practice manager.
Damages for past loss of earnings for the period 29 December 2017 to 28 February 2019 was agreed at $51,964.98 net and superannuation thereon is agreed at 11% of the net sum.
I am satisfied on the preponderance of the evidence that Mrs Ladhani has sustained a loss or diminution in her earning capacity in the past and that such loss or diminution has resulted in economic loss.
The matter for my determination is whether Mrs Ladhani is entitled to any damages for past economic loss and superannuation thereon from 1 March 2019 to her 80^th birthday on 26 February 2022.
I accept the evidence of Mrs Ladhani and Ms Harrison in respect of the nature of the duties of practice manager in Dr Ladhani’s medical practice. I accept Mrs Ladhani’s evidence that she was a competent typist and competent at operating a computer.
Mrs Ladhani’s evidence was that she attempted a return to work 20 hours per week between June 2018 and December 2018 and as a result of her worsening depression, panic attacks and the ongoing pain and the difficulties she experienced in carrying out her duties as a practice manager, she was simply unable to continue to manage the day-to-day running of the practice any longer and ceased working as the practice manager. Mrs Ladhani’s evidence in this regard was corroborated by Dr Ladhani and Ms Harrison.
In respect of Mrs Ladhani’s physical injuries, Dr Bodel opined that her absences from employment had arisen as a consequence of the effects of the motor accident. She had no prospects of returning to her previous employment or any form of paid work. There had been a very severe restriction in her earning capacity, which will persist indefinitely. She has no residual capacity for work.
In respect of Mrs Ladhani’s physical injuries, Dr Doig opined that Mrs Ladhani had a less than 5kg lifting, pushing and pulling restriction with the non-dominant left arm. She should avoid repetitive bending and twisting through her neck and may require breaks from prolonged sitting and driving. She should avoid walking on uneven ground with restricted kneeling, squatting and stair climbing. Dr Doig opined that Mrs Ladhani should be able to return to a medical receptionist/practice manager position with the restrictions referred to above. An ergonomic set up would be advantageous.
NRMA submitted that the opinion of Dr Doig should be preferred over that of Dr Bodel because the latter took an incorrect history, namely, that Mrs Ladhani had not been able to return to any paid work since she was employed full-time as the practice manager. I reject the submission because Dr Bodel acknowledged that Mrs Ladhani’s co-worker (Ms Harrison) retired when Mrs Ladhani could no longer work. The evidence is that Ms Harrison left the medical practice when Mrs Ladhani ceased working 20 hours per week.
Mead is authority for the proposition that, once a claimant has established a loss of economic capacity then the insurer bears the onus to prove that a claimant has a practical chance to exercise any remaining residual earning capacity. I find that NRMA has not discharged that onus.
Mrs Ladhani’s evidence was that she attempted a return to work 20 hours per week in protected employment with her husband between June 2018 and December 2018 (last paid on 3 March 2019) and as a result of her worsening depression, panic attacks and the ongoing pain and the difficulties she experienced in carrying out her duties as a practice manager, she was simply unable to continue to manage the day-to-day running of the practice any longer and ceased work. Mrs Ladhani’s evidence in this regard was corroborated by Dr Ladhani and Ms Harrison. I accept their evidence in this regard.
Dr Bodel and Dr Doig only dealt with Mrs Ladhani’s work capacity in respect of her physical injuries. In respect of Mrs Ladhani’s psychological injuries, I have found that, as a result of the motor accident, she suffered an anxiety disorder resulting from the trauma of the motor accident in the form of either an adjustment disorder with anxiety or post-traumatic stress disorder and a subsequent depressive disorder and the related disabilities referred to in [275(o)-(w)] above.
I find that the combination of Mrs Ladhani’s significant physical and psychological injuries and disabilities resulted in her being unable to sustain employment as a medical practice manager in an open and competitive labour market, even at reduced hours. She had no residual earning capacity. The reality is that the injuries have rendered her unfit for any form of work on the open labour market.
Having dealt with and identified Mrs Ladhani’s income earning capacity at the time of injury and the extent of impairment caused by her injuries, I now deal with the question as to the extent the impairment was productive of income loss.
Mrs Ladhani’s evidence was that she intended to retire on reaching the age of 80 years. Such evidence was contradicted by Dr Ladhani’s evidence and Ms Harrison’s evidence that there were no discussions in respect of retirement or plans for retirement. It was also contradicted in the replies to a request for particulars by Mrs Ladhani’s former lawyer wherein it was stated that she intended to retire at the end of 2020. In such circumstances, I am not satisfied that Mrs Ladhani’s most likely circumstances but for the motor accident were that she would have retired at the age of 80 years.
The unchallenged evidence is that Dr Ladhani sold his practice on 28 February 2019. I am not persuaded that the sole or main reason for selling the medical practice was that he had lost the services of Mrs Ladhani as practice manager. He had sustained a serious back injury in 2017 and it affected his mobility. After selling his medical practice, Dr Ladhani worked as a general practitioner contracted to the GP Super Clinic at Coffs Harbour until 20 October 2019.[57] It was a position that afforded him flexibility, in that, it allowed him to take up the position of senior lecturer at the University of New South Wales, lecturing to nursing students in hospital, at the psychiatric clinic and at the pain clinic. It likely afforded him more flexibility than his private general practice.
[57] Ladhani's documents at page 33 at [3.5(e)].
Dr Ladhani’s unchallenged evidence was that, whilst he was contracted to the GP Super Clinic, jobs came up for medical receptionists. Mrs Ladhani would come to the GP Super Clinic and assist him with his medical records. The management at the GP Super Clinic promised that, if Mrs Ladhani was willing to come back and work, then she would be given the job to do the things she used to do in his medical practice.
The unchallenged evidence is that, in November 2019, Dr Ladhani underwent surgery to his back and developed vascular complications that badly affected his left leg and his mobility. As a result, he decided to cease work as a general practitioner.
In such circumstances, I find that Mrs Ladhani’s most likely circumstances but for the motor accident were that she would have followed Dr Ladhani to the GP Super Clinic at Coffs Harbour and obtained employment there for, at least, $919 net per week and retired when Dr Ladhani was unable to continue working as a general practitioner for medical reasons on 20 October 2019. She had the necessary skills as a medical practice manager and she knew the patients who had transferred across from their practice to the GP Super Clinic. She is multilingual in a location where the languages in which she is skilled are spoken as a first language by certain parts of the community. However, I am not persuaded that she would have continued to work after Dr Ladhani’s retirement.
I calculate Mrs Ladhani’s past loss of earnings from 29 December 2017 to 20 October 2019 as follows:
(a)   damages for past loss of earnings for the period 29 December 2017 to 28 February 2019 agreed at $51,964.98 net;
(b)   damages for past loss of earnings for the period 1 March 2019 to 20 October 2019, being 33.5 weeks at $919 net per week = $30,786.50, and
(c)   damages for past loss of superannuation entitlements agreed at 11% of the total net past loss of earnings of $82,751.48 from 29 December 2017 to 20 October 2019 = $9,102.66.
Accordingly, I assess Mrs Ladhani’s entitlement to past loss of earnings, inclusive of superannuation, at $91,854.14

ASSESSMENT OF DAMAGES SUMMARY

Under s 7.36(1)(b) of the MAI Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Non-economic loss:  $220,000.00
Economic losses
·Past loss of earnings (inclusive of superannuation):         $91,854.14
Total of economic losses and non-economic loss:  $311,854.14
Total damages assessed:  $311,854.14

COSTS AND DISBURSEMENTS

I assess Mrs Ladhani’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 in accordance with the attached sheet.

CONCLUSION

On the issue of liability for the claim, the NRMA’s insured owed a duty of care to Mrs Ladhani, breached that duty of care and Mrs Ladhani sustained injury, loss and damage as a result of that breach of duty.
Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $311,854.14.
The amount of Mrs Ladhani’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $31,207.50 inclusive of GST.

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
(a) the MAI Act;
(b) Motor Accident Injuries Regulation 2017, and
(c) Personal Injury Commission Rules.

[2022] NSWPIC 532

27 September 2022