Lukic v AAI Limited t/as AAMI

[2024] NSWPIC 502

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Lukic v AAI Limited t/as AAMI [2024] NSWPIC 502

CLAIMANT:

Radomir Lukic

INSURER:

AAI Limited t/as AAMI

MEMBER:

Anthony Scarcella

DATE OF DECISION:

11 September 2024

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of a claim for damages; liability not disputed; physical and psychiatric/psychological injuries; no entitlement to non-economic loss; claim for past and future economic loss; claimant’s credit and reliability in issue; consideration of  desktop surveillance reports and accompanying video surveillance; consideration and application of section 4.7; Medlin v State Government Insurance Commission, Husher v Husher, and Penrith City Council v Parks considered and applied; Held – claimant is entitled to damages for past and future economic loss to statutory retirement age; damages assessed accordingly; insurer to pay the claimant’s legal costs and disbursements as agreed or assessed.

DETERMINATIONS MADE:

CERTIFICATE

In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is:

1.     The amount of damages for the claim is $278,831.

2. The insurer is to pay the claimant’s legal costs and disbursements in accordance with Part 8 of the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 as agreed or assessed.

A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

BACKGROUND

1. 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 7 October 2020 (the motor accident).

2. The claimant, Mr Radomir Lukic, is a 64-year-old man, who alleges he suffered physical and psychological injuries as a result of the motor accident.

3. On 6 November 2020, Mr Lukic made an application for personal injury benefits in respect of the motor accident. The relevant compulsory third-party insurer is AAI Limited t/as AAMI (the insurer).

4. Mr Lukic made an application for damages under common law. In a liability notice dated 15 September 2022, the insurer admitted liability, including an admission of breach of duty of care and that Mr Lukic had suffered some injury, loss or damage as a result of the driver of the vehicle at fault.

5. On 2 May 2023, Mr Lukic lodged the Application with the Motor Accidents Division of the Personal Injury Commission (Commission).

6. At a teleconference on 3 June 2024, the matter was set down for an in-person assessment conference on 8 July 2024. Mr John Turnbull SC appeared for Mr Lukic, instructed by Mr Martin Bell, solicitor. Mr Branislav Andric, Serbian interpreter, was present over MS Teams to assist Mr Lukic. Mr John Guihot of counsel appeared for the insurer, instructed by Ms Helene Tretheway, solicitor.

7. The parties agreed that the following issues were required to be determined by me:

   (a)    Mr Lukic’s credibility and his reliability as an historian;

   (b)    the nature and extent of Mr Lukic’s injuries and incapacity;

   (c)    the quantum of Mr Lukic’s damages for past loss of earnings or past loss of earning capacity, and

   (d)    the quantum of Mr Lukic’s damages for future loss of earnings or future loss of earning capacity.

8. The parties agreed that:

   (a)    Mr Lukic had no entitlement to damages for non-economic loss;

   (b)    the deduction to be made under s 3.40(1)(b) of the MAI Act amounts to $117,287.50, and

   (c)    payments made by the insurer under section 4.5(1)(d) of the MAI Act (Fox v Wood damages) amount to $7,035.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    Mr Lukic’s final tender bundle of documents relied on in his case lodged with the Commission on 17 June 2024 (claimant’s documents);

   (b)    the insurer’s final tender bundle of documents relied on in its case lodged with the Commission on 1 July 2024 (insurer’s documents);

   (c)    Mr Lukic’s written submissions in response to the insurer’s written submissions lodged with the Commission on 5 July 2024;

   (d)    the insurer’s response to Mr Lukic’s schedule of legal costs and disbursements dated 5 July 2024;

   (e)    Mr Lukic’s individual income tax return 2020, and

   (f)    LR Ceiling Pty Limited’s company tax return 2020.

Oral evidence

1. Oral evidence was adduced from Mr Lukic at the assessment conference.

SUBMISSIONS

1. Mr Lukic’s legal representatives provided written submissions on the substantive issues dated 17 June 2024 and 5 July 2024, supplemented by oral submissions at the assessment conference.

2. The insurer’s legal representatives provided written submissions on the substantive issues dated 1 July 2024, supplemented by oral submissions at the assessment conference.

3. Outlines of the parties’ respective submissions are referred to under each relevant issue for determination set out below.

THE NATURE AND EXTENT OF THE INJURIES AND INCAPACITY

Application for personal injury benefits

1. On 6 November 2020, Mr Lukic signed an Application for personal injury benefits in respect of the motor accident (application form).[1]

   [1] Insurer's documents at pages 37-42.

2. The application form set out the basic particulars of the motor accident and Mr Lukic provided the following description of the motor accident:

   “I was stationary at the traffic lights when I was rear-ended by another vehicle.”[2]

   [2] Insurer's documents at page 39.

3. In the application form, Mr Lukic described his injuries as a result of the motor accident as follows:

   “Whiplash injury
   Concussion
   Pain with bilateral referred arm pain
   Headache
   Dizziness
   

   [3] Insurer's documents at page 39.

   Low back pain with right sided radiculopathy”.[3]

4. In the application form, Mr Lukic denied that he was suffering an illness or injury affecting the same or similar parts of his body at the time of the motor accident.

Mr Radomir Lukic’s evidence

1. In evidence, there is a written statement by Mr Lukic dated 17 June 2024 (evidentiary statement).[4] He also gave oral evidence at the assessment conference.

   [4] Claimant’s documents at pages 7-41.

2. I will refer to the relevant parts of his evidentiary statement and his oral evidence.

3. Mr Lukic stated that he was born in the former Yugoslavia. Mr Lukic stated that he married in 1986 and separated from his wife in 2009.

4. Mr Lukic stated that he completed eight years schooling followed by four years vocational training that concluded in about 1979. He then served in the army for one year. After leaving the army, he attended a police school in Zagreb and subsequently worked in a police station as an inspector for 18 years. In about 1988, he commenced legal studies at a TAFE-like institution in the hope of one day becoming a police inspector. He undertook the legal studies course for two years.

5. Mr Lukic stated that he came to Australia in 1998. After he arrived, he tried to learn English. He undertook other studies with a view to doing police related work but was unsuccessful because he was unable to sufficiently improve his English language skills. Instead, he chose to undertake work doing gyprock fit-outs, floors, ceilings and the like.

6. Mr Lukic stated that, on 1 July 2003, he registered the business name, LR Ceiling. In response to questions from his senior counsel, Mr Lukic stated that he registered an Australian Business Number (ABN) in respect of the business LR Ceiling. On 15 June 2011, LR Ceiling Aust Pty Limited was registered. He is the sole director of that company.

7. Mr Lukic stated that, since 2010, he had been subcontracting his gyprocking services to City Projects Pty Limited (City Projects), where he worked an average of 41 hours per week and charged out at a rate of $55 per hour.

8. In his evidentiary statement, Mr Lukic provided particulars of his pre-accident medical condition. I will only refer to the relevant medical conditions below.

9. Mr Lukic stated that, on 15 July 2009, he consulted Dr Velibor Todorovic, general practitioner, complaining of feeling depressed and not sleeping well. On 11 December 2009, he consulted Dr Todorovic complaining of insomnia.

10. Mr Lukic stated that, on 12 August 2016, he underwent an ultrasound of his right shoulder.

11. Mr Lukic stated that, on 17 November 2017, he underwent a CT scan of his lumbar spine on the referral of Dr Bazul Karim, general practitioner. On 1 December 2017, a general practitioner from the All Care Medical Centre referred him to Dr Balsam Darwish. As he was still experiencing ongoing back problems, he discussed the CT scan results with Dr Karim on 15 December 2017, who suggested that he consult a neurosurgeon.

12. Mr Lukic stated that, on 4 June 2018, he consulted a general practitioner at All Care Medical Centre and was again advised to consult a neurosurgeon. On 31 August 2018, he consulted Dr Sayeed Khan regarding back pain and was referred to Dr Renata Bazina, neurosurgeon. On 5 September 2018, he consulted Dr Abraszko who referred him for a lumbar MRI scan on 24 September 2018. On 7 November 2018, he consulted Dr Abraszko who referred him for an L4/5 epidural injection.

13. Mr Lukic stated that, on 15 August 2019, he underwent a CT scan of his lumbar spine due to left sided lumbar pain. Dr Karim referred him to Dr Sergey Fedorine in respect of kidney stones. On 6 September 2019, he consulted a general practitioner at All Care Medical Centre regarding back pain.

14. Mr Lukic stated that, on 2 July 2020, he consulted Dr Blagoj Kuzmanovski, general practitioner, about erectile dysfunction, dysuria and frequency. He was referred to Dr Paul Cozzi, urologist. Dr Cozzi recommended a cystoscopy and sexually transmitted disease (STD) screening. The cystoscopy demonstrated urethral stricture.

15. Mr Lukic stated that, on about 31 August 2020, he suffered a “gallbladder attack”[5] and underwent a laparoscopic cholecystectomy by Dr Paul Lambrakis, specialist general surgeon, at Liverpool Hospital without complication. He was advised by Dr Lambrakis that he would be unable to work for six weeks following surgery. On 7 October 2020, he consulted Dr Lambrakis for a post-surgical review, and was advised to take another two weeks off work, making a total of seven weeks post-surgery. He was also advised to refrain from heavy lifting for a month or two before resuming full duties.

    [5] Claimant's documents at page 11 at [47].

16. Mr Lukic stated that, after his appointment with Dr Lambrakis, he drove to the offices of City Projects and arranged to resume work on restricted duties the following day. He anticipated that he would be able to supervise work for two weeks and after that, on 22 October 2020, perform light work and the supervision of any heavy work until he was able to resume full duties in early December 2020.

17. Mr Lukic stated that, whilst he was driving home from City Projects on 7 October 2020, he was stationary at a set of traffic lights. The traffic lights turned green but he continued to wait because the traffic in front of him had not yet moved off. He heard a screeching sound and started to turn around to see what it was, when another vehicle behind him collided at speed with the rear of his vehicle, violently forcing his vehicle forward.

18. Mr Lukic described what he felt after the collision as follows:

    “I immediately felt violent whiplash, concussion like symptoms, pain in the neck, lower back with numbness, both arms and both shoulders and dizziness and headache. The numbness went into my right toes. I felt very shocked. I had never experienced such violent trauma before in my life.”[6]

    [6] Claimant's documents at page 13 at [54].

19. Mr Lukic stated that his car was not driveable following the motor accident and he called a friend to come and collect him. He was taken to Dr Veda Sofic, general practitioner, who referred him to St George Hospital.

20. Mr Lukic stated that he attended St George Hospital as advised by Dr Sofic. He underwent a CT scan of the brain and the cervical spine and was recommended to undergo an outpatient MRI scan. He also underwent X-rays of his left elbow and his chest. He was advised, with the assistance of an interpreter, that he had probably suffered a concussion as well as a cervical spine injury. He complained to nurses that he was also suffering from left shoulder and low back pain. He was aware that it had not been noted in the hospital records and did not know why. Whilst at the hospital, he felt very nervous and was panicking. He had never felt that way before.

21. In his written statement, Mr Lukic summarised the treatment he had received since the motor accident. I have not referred to each of the consultations listed but rather, highlighted the more relevant ones.

22. Mr Lukic stated that, on 8 October 2020, he consulted Dr Kuzmanovski. He complained to the doctor of neck pain and stiffness, back pain and stiffness, referred arm pain, tenderness over the rib muscles and headaches with dizziness. He also complained to the doctor of severe psychological symptoms. Dr Kuzmanovski referred him to Dr Nicola Tomic, psychologist, and referred him for MRI scans.

23. Mr Lukic stated that, on 9 October 2020, he was unable to get out of bed because the back pain he had felt following the motor accident had become considerably worse. On 12 October 2020, he consulted Dr Kuzmanovski, who suspected right-sided radiculopathy. He was prescribed Palexia for the pain.

24. Mr Lukic stated that, on 15 November 2020, he consulted Dr Sofic complaining of dizziness and lower back pain radiating down his right leg, pins and needles and numbness. Dr Sofic referred him for a CT scan of the brain and the cervical spine.

25. Mr Lukic stated that, on 19 November 2020, he consulted Dr Tomic in respect of his disturbed sleep, hypersensitivity in traffic, loss of confidence with driving and an inability to enjoy normal activities. He also complained of suffering from fatigue, difficulty concentrating on tasks, suffering from panic attacks and agitation. Dr Tomic diagnosed an adjustment disorder with anxiety and depressed mood.

26. Mr Lukic stated that, on 12 December 2020, he consulted Professor Steve Vucic, consultant neurologist and neurophysiologist, who performed nerve conduction studies on his upper limbs and arranged for MRI scans of his brain and his cervical spine. He complained to Professor Vucic about a bizarre, disoriented feeling and about the top of his head feeling numb.

27. Mr Lukic stated that, on 11 February 2021, he consulted Dr Kuzmanovski who referred him to Mr Jerry Filippatos, physiotherapist, for treatment to his neck and back. The insurer refused to approve physiotherapy and so, Dr Kuzmanovski referred him to Mr Vladimir Colovic, physiotherapist.

28. Mr Lukic stated that, on 8 April 2021, Dr Kuzmanovski referred him to Dr Blagoje Kuljic, psychiatrist, in respect of his psychiatric symptoms that included flashbacks, his
    pre-occupation with the motor accident and his driving phobia. He first consulted Dr Kuljic on 2 June 2021 and was diagnosed with post-traumatic stress disorder. Dr Kuljic prescribed 15mg of Mirtazapine nightly.

29. Mr Lukic stated that, on 4 October 2021 he consulted Dr Kuljic via a telehealth appointment complaining of nightmares, insomnia and waking in sweats. Dr Kuljic increased his dosage of Mirtazapine to 30mg nightly.

30. Mr Lukic stated that, on 13 October 2021, he consulted Dr Kuzmanovski complaining of ongoing pain in his neck and lower back and was referred for MRI scans of his cervical spine and his lumbar spine, which he underwent on 14 October 2021.

31. Mr Lukic stated that, on 5 November 2021, he consulted Dr Kuljic complaining that the increased dosage of Mirtazapine made him feel dizzy and sleepy. Dr Kuljic recommended that he reduce the dosage to 15mg nightly but increase it to 30mg when he had no appointments booked for the following day.

32. In his evidentiary statement, Mr Lukic referred to consulting a Dr Rosenberg, who it appears suggested some form of injections. No details were provided.

33. Mr Lukic stated that, on 27 January 2022, he first consulted Dr Peter Khong, neurosurgeon, who recommended injections into his L5 and S1 areas of the lumbosacral spine.

34. Mr Lukic stated that, on 1 February 2022, he consulted Dr Kuljic who increased the dosage of Mirtazapine to 60mg nightly and provided him with relaxation exercises.

35. Mr Lukic stated that, on 4 April 2022, he consulted Dr Kuljic who prescribed 2mg of Melatonin to take two hours before sleep.

36. Mr Lukic stated that, on 22 April 2022, he underwent an injection into the L5 level of his lumbar spine. On 26 April 2022, he underwent an injection into the S1 level of his lumbosacral spine. On 29 April 2022, he consulted Dr Khong and advised him that the injection into the L5 provided some relief but that the injection into the S1 had done nothing. Dr Khong prescribed Lyrica 25mg-75mg for the pain and numbness radiating into his legs and suggested that he try a second injection into the L5 in a month’s time. Dr Khong also advised him to persevere with physiotherapy and/or hydrotherapy in the meantime.

37. Mr Lukic stated that, on 9 May 2022, he consulted Dr Kuljic who advised him to cease Melatonin and replaced Mirtazapine with Duloxetine. At some stage, Dr Kuljic changed his medications to Cymbalta 60mg daily and Seroquel 25mg nightly.

38. Mr Lukic stated that, on 4 July 2022, he consulted Dr Khong who referred him to Dr Kevin Soo, orthopaedic surgeon, in respect of his shoulder pain. On the available evidence, it does not appear that Mr Lukic consulted Dr Soo.

39. Mr Lukic stated that, on 17 October 2022, he consulted Dr Khong who confirmed that he required surgery to his lumbar spine. The insurer eventually approved the surgery proposed by Dr Khong. On 21 December 2022, he underwent a right L4/5 decompression and right rhizolysis of the right L5 nerve root by Dr Khong at St George Private Hospital. He was discharged from hospital on 23 December 2022.

40. Mr Lukic stated that, on 30 March 2023, he consulted Dr Kuzmanovski and reported that the surgery had improved his nerve symptoms but that the pain still remained at the same level as before the operation. The dosage of Cymbalta was increased.

41. Mr Lukic stated that, on 15 May 2023, he consulted Dr Khong complaining of pain in his neck and lower back and of lower limb numbness. Dr Khong suggested a perineural injection and referred him for an MRI scan. On 5 July 2023, he consulted Dr Kuzmanovski to discuss the results of the MRI scan and nerve conduction studies.

42. Mr Lukic stated that, on 14 August 2023, he consulted Dr Khong complaining of worsening lower back and right leg pain as well as pain in the right side of his neck. Dr Khong referred him for right C6 and C7 perineural injections and also recommended a fusion and foraminotomy.

43. Mr Lukic stated that, on 19 February 2024, he consulted Dr Khong complaining of lower back and neck pain. Dr Khong recommended fusion surgery and referred him for an MRI scan as well as referring him to Dr Soo in respect of his right shoulder pain.

44. Mr Lukic stated that, on 20 May 2024, he consulted Dr Khong complaining of neck pain and pins and needles in his right arm as well as lower back pain and right leg pain. Dr Khong recommended that he undergo a C5, C6 and C7 anterior cervical discectomy and fusion and a L5/S1 anterior lumbar interbody fusion.

45. Mr Lukic stated that, prior to the motor accident, he had been in good health and would have continued working to, at least, 70 years of age, that is, until 2030. Whilst his back bothered him from time to time prior to the motor accident, he was able to work without significant difficulty.

46. Mr Lukic stated that, since the motor accident, he had been unable to work and felt that he would never be fit again. He has difficulty standing or sitting for any period of time and difficulty walking without assistance. He felt that there was absolutely no way he could return to the building industry because of his physical and psychological symptoms. The dizziness he has suffered since the motor accident occurs whenever he stands up, bends over or gets out of bed. He concluded that his whole life has been irreparably altered by the consequences of the motor accident.

1. Mr Lukic stated that he is currently taking the following medications:

   (a)    Duloxetine 90mg daily for depression/anxiety;

   (b)    Quetiapine quick-release 25mg and slow-release 100mg daily for depression/anxiety;

   (c)    Lyrica for nerve pain;

   (d)    Panadeine Forte for pain, and

   (e)    Voltaren for pain.

2. In response to questions from his senior counsel, Mr Lukic stated that after the motor accident he returned to work but he could not do the work. He made an application to the insurer for weekly payments and thereafter, received weekly payments. When those weekly payments finished he went on Centrelink and has been in receipt of Centrelink payments ever since.

3. In response to questions from his senior counsel, Mr Lukic stated that, at present, his back feels “no good”. If he lifts heavy things or bends over to lift heavy things it causes him pain. He could not do his work as a gyprocker now because he cannot lift anything heavy without pain. In respect of his depression, he feels that it is deteriorating rather than improving. He is not having any treatment for his back problems now. In respect of current medication, he stated that he takes painkillers, medication for his depression and sleeping pills. He continues to consult his general practitioner and his specialist. He confirmed that he had undergone surgery to his back a couple of years ago and stated that his back was no better following the surgery.

4. In response to questions from counsel for the insurer, Mr Lukic stated that he had experienced lower back pain before the motor accident but the pain did not radiate into his right leg. When the question was repeated, he agreed that before the motor accident the lower back pain had radiated into his right leg. He later denied that he experienced radiation of pain into his right leg prior to the motor accident. When the back pain came, it would last for a couple of weeks at the maximum and then it would go away. When the pain stopped he went to work. He never stopped working. He never took sick leave. After he underwent the injection into his back arranged by Dr Abraszko on 14 November 2018, he felt better. He was advised to have three injections but only had the one because he felt better. He could not remember experiencing pain after the injection. When it was put to him that his back pain and pain radiating down into his right leg continued into 2020, he denied it.

5. In response to questions from counsel for the insurer as to the disclosure of back pain and referred right leg pain prior to the motor accident to Dr Rimmer and Dr Khong, Mr Lukic stated he had never hidden the fact that he saw his doctor when he was in pain.

6. When counsel for the insurer put to Mr Lukic that when he consulted psychiatrists, he tried to give the impression that he had withdrawn from socialising with people and friends, he agreed with the proposition. He stated that he had never said that he had nowhere to go, just that he had lost interest. Dr Kuljic said that he should socialise.

7. In response to questions from counsel for the insurer, Mr Lukic stated that, in the 2020 financial year, he rendered tax invoices in his own name rather than his company name because he did not have enough work and it was a more expensive way to do business through the company in those circumstances. He used the company again in the 2021 financial year because he was getting some small contracts and the contractors asked to deal with his company and not with him through his ABN. He had lodged his 2020 tax return and received a notice of assessment.

8. In his evidentiary statement at [161]-[226], Mr Lukic provided detailed responses to the matters raised in the M & A Investigation report dated 15 December 2023 and the Procare desktop investigation reports commissioned by the insurer.

9. Mr Lukic provided responses to the M & A Investigation report dated 22 June 2024 in his oral evidence because that report post-dated his evidentiary statement.

10. I will deal with Mr Lukic’s responses in this regard under the surveillance evidence heading in this statement of reasons.

11. In re-examination by his senior counsel, Mr Lukic stated that, when he had back pain in 2017 and 2018, it did not stop him from working. He did not stop one single day. When he and Mr Tesic entered into the lease, he received legal advice from a Croatian guy who is a notary and speaks the same language.

Mr Vladan Tesic’s evidence

1. In evidence, there is a written statement by Mr Vladan Tesic dated 14 March 2024.[7]

   [7] Claimant’s documents at pages 42-44.

2. Mr Tesic stated that he has known Mr Lukic for over 10 years and that they had remained good friends.

3. Mr Tesic stated that, prior to the motor accident, Mr Lukic was a much more confident and outgoing person. Since the motor accident, whilst he put on a brave face at times, he had changed dramatically. He had become much more insular and insecure. He appeared very flat and disinterested in the things he used to be interested in.

4. Mr Tesic stated that he is the owner of Skadarlija Bar and Grill Café in Bexley and that he had run the café since about April/May 2023. Mr Lukic had advanced him $20,000 to assist him in setting up Skadarlija Bar and Grill Café. Mr Lukic told him that he hoped Mr Tesic could employ his daughter at the café because she was not working at the time. Mr Tesic added:

   “Whilst it was not a strict legal agreement, that was the basis upon which he very generously advanced to me the sum of $20,000.00.”[8]

   [8] Claimant's documents at page 42 at [6].

5. Mr Tesic stated that Mr Lukic’s name was on the lease of the premises rented by the café and that he believed it was a way of securing the lease of the property and the deposit.

6. Mr Tesic stated that Mr Lukic has no financial interest in Skadarlija Bar and Grill Café. Mr Lukic has not received and will not receive any income from the business.

7. Mr Tesic stated that he was aware that Mr Lukic registered the business name of Skadarlija Bar and Grill Café in his name. However, the café does not trade under that name or ABN but trades under Mr Tesic’s own ABN. Mr Lukic did speak to him about cancelling the business name he registered because it was irrelevant and it was not used. He was unaware as to whether Mr Lukic took any action in that regard. He understood that Mr Lukic made enquiries and formed the view that he did not need to take any action as it had no effect.

8. Mr Tesic stated that he understood that photographs of Mr Lukic in the café had been posted on Facebook referring to the latter as “our new barman”. Mr Tesic maintained that such a post was in jest. He would never employ Mr Lukic in that role because of his physical and psychological problems. Further, he had no training or skills as a barman.

9. Mr Tesic stated that he understood that there was video footage of Mr Lukic wearing a red shirt or something similar. Such attire was from Mr Lukic’s wardrobe and had nothing to do with the café business. Mr Lukic had never worked or appeared to work on the café premises. He was not aware of Mr Lukic having worked anywhere else.

10. Mr Tesic stated that, soon after the café first opened, Mr Lukic attended the premises “as a friend”.[9] Mr Lukic told him that his psychiatrist had encouraged him to be more social. Mr Lukic’s attendance at the café was nothing more than being in the company of he and his wife as long standing friends.

    [9] Claimant's documents at page 43 at [14].

11. Mr Tesic stated that, whilst Mr Lukic had attended the café, his social acumen since the motor accident had been decidedly poor. He did not bathe regularly and but for the fact that he was a friend, he would have been asked to leave the café. Prior to the motor accident, he was affable and outgoing and would take care of himself, bathe and behave like a proud man. He was now the opposite.

12. Mr Tesic did not give any oral evidence and the insurer did not require him for questioning.

The surveillance evidence

1. The insurer’s surveillance evidence consisted of the Suncorp Group – Fraud and Intelligence desktop investigation report dated 10 October 2023, the M & A Investigations surveillance report dated 15 December 2023, the Procare desktop investigation report dated 15 February 2024, the Procare supplementary desktop investigation report dated 20 May 2024 and the M & A Investigations surveillance report dated 22 June 2024.[10]

   [10] Insurer's documents at pages 13-26.

2. Surveillance videos of Mr Lukic and video clips downloaded from social media allegedly related to Mr Lukic added up to a viewing time of about 71 minutes. The video clips were referred to in the surveillance reports and uploaded to the Commission’s portal separately. There were also still frames of the various video clips within the body of each report.

3. The insurer relied on the Suncorp Group – Fraud and Intelligence desktop investigation report dated 10 October 2023 (Suncorp report).

4. The Suncorp report contained images posted on social media relating to a soccer match allegedly in November 2022. Mr Lukic was seen wearing a soccer shirt, shorts, boots, socks and allegedly playing soccer in a video. There was also a team photograph depicting Mr Lukic as a team member. In his evidentiary statement, Mr Lukic stated that these images were taken four to five years ago prior to the motor accident and were uploaded to Facebook in November 2022. The images were taken at a charity event organised by the Serbian church in Dapto. He did not play soccer. It was just staged for the image. He denied actively playing the game, he was motioning to kick a ball to the children in the video.[11]

   [11] Claimant's documents at page 26 at [164]-[165].

5. I reject the insurer’s submission that Mr Lukic was playing soccer in that short video clip. He certainly appeared to be stretching and tapping the ball to some children. There were other adults on the field also kicking the ball around. There was no match in progress. There was no information on the video clip to assist me in identifying the date on which it was taken. The Suncorp report stated that, in respect of the video clip, Mr Lukic had been tagged in a post in November 2022. Such information is not, of itself, reliable evidence that the charity event took place at or about the time of the post.

6. The Suncorp report, in the same Facebook post in November 2022, contained an image of Mr Lukic raising his arms in what appeared to be a dancing motion. In his evidentiary statement, Mr Lukic was unsure as to when the image was taken but did state that it was taken at Dapto church prior to the motor accident and prior to the COVID-19 pandemic. He confirmed that he could be seen with his hands up, enjoying the music and the singer prior to his injury.[12]

   [12] Claimant's documents at page 27 at [166].

7. Again, the Suncorp report stated that, in respect of this image, Mr Lukic had been tagged in a post in November 2022. Such information is not, of itself, reliable evidence of the date on which the image was taken. There is nothing on the image itself to identify the date.

8. The Suncorp report suggested that Mr Lukic is involved in the Skadarlija Bar and Grill Café. In reaching this conclusion, the insurer relied on social media posts by Mr Lukic and others that attached photographs and video clips of him allegedly working as a bartender, standing with musicians and wearing a café related uniform.

9. In his evidentiary statement, Mr Lukic explained that he had tried, at Dr Kuljic’s urging, to continue to rekindle his passion and interest in live music. In the photographs and video clips, he was dressed in outfits from his own wardrobe. He had dressed up as a joke and stood in front of the bar with a drink in his hand. He was dressed in a red shirt, black vest and black pants. He posted the image on Facebook with the caption in Serbian that translated into English as “new barman at the restaurant Skadarlija”. There were photos of him at the Skadarlija Bar and Grill Café with Mr Tesic’s wife and also with his own daughter. There was also a video taken at a celebration for his daughter’s birthday at Skadarlija Bar and Grill Café with family and friends. He can also be seen in the background of one video clip filming musicians that had come from Serbia performing at Skadarlija Bar and Grill Café.[13]

   [13] Claimant’s documents at pages 27-28.

10. In response to questions from his senior counsel, Mr Lukic denied having a legal interest in Skadarlija Bar and Grill Café. He denied being an employee of the café. He gave evidence that Mr Tesic is the owner of the café. He has known Mr Tesic for 10 years and he is a friend. Skadarlija Bar and Grill Café started up in about May/June 2023. Mr Tesic had spoken to him before May/June 2023 about setting up a restaurant. Mr Tesic asked him if he could borrow some money to pay the bond to lease the proposed café premises. He lent Mr Tesic $14,500, which came from monies ($76,000) he had been paid by his superannuation company, Cbus, because he could not work anymore. He transferred the $14,500 to the real estate agent’s bank account. There is a lease over the café premises and his name is on the lease because that is the only proof that he gave Mr Tesic the money. He did not receive any legal advice about lending Mr Tesic the money and putting his name on the lease. Mr Tesic has repaid him $5,000 and that has been by way of instalments.

11. The Suncorp report attached an ABN search that recorded Mr Lukic’s ABN was registered to a business called Skadarlija 632, which was linked to the Bexley address of the café from 10 May 2023. The same ABN applied to the business name LR Ceiling.[14]

    [14] Insurer's documents at page 182-183.

12. In evidence, there is a letter from ABC Tax Consulting Pty Limited dated 28 February 2024 signed by Mr Thomas Zhou, accountant. Mr Zhou stated that his company had acted for Mr Lukic as his accountant and tax agent. Mr Zhou further stated:

    “As per the information supplied by the client, this is to advise that Skadarlija 632 is a registered business name but it was not traded”.[15]

    [15] Claimant’s documents at page 633.

13. The Suncorp report attached a copy of the liquor licence issued by Liquor and Gaming NSW to Vladan Tesic with the licence name being “Skadarlija” at the café’s Bexley address on 3 July 2023.[16]

    [16] Insurer's documents at pages 134-140.

14. In response to questions from counsel for the insurer, Mr Lukic stated that he registered the name Skadarlija 632 under his existing ABN to help a friend (Mr Tesic). Mr Tesic had some issues in getting an ABN. He was not aware that Mr Tesic already had his own active and current ABN at the time he registered Skadarlija 632. He did not ask Mr Tesic about it, he registered it on his own initiative. The number 632 corresponds with the street number of the Skadarlija Bar and Grill Café premises.

15. In evidence, there is an ABN search dated 25 March 2024 that records Mr Tesic as having an active ABN from 28 February 2023 to date with the main business location recorded with the NSW postcode 2207 (Bexley).[17]

    [17] Insurer’s documents at page 284.

16. In response to questions from counsel for the insurer, Mr Lukic stated that, in addition to the $14,500 he advanced to Mr Tesic, he advanced him further sums that totalled about $20,000. He was not sure, but he thought that he last advanced money to Mr Tesic in 2023. Mr Tesic repaid him whenever he had some money. Sometimes, $500. Sometimes, $1,000. Mr Tesic’s last repayment of $500 was in 2023.

17. In response to questions from counsel for the insurer, Mr Lukic stated that he signed the lease to the café premises in March 2023. The lease was in his name and Mr Tesic’s name as tenants that ran until 28 February 2025. He did not know that if the café did not do well and ceased trading that he would be obliged to pay the rent until 28 February 2025. He denied that signing the lease had nothing to do with trying to get his daughter a job in the business. He denied being actively involved in the business since the café had opened.

18. When asked by counsel for the insurer why he had not produced his bank statements from May 2023 to 31 December 2023 as requested by the insurer’s lawyers, he responded, “they never asked”. When asked whether his solicitor had told him that the insurer had written a number of letters requesting those bank statements, he responded, “I don’t remember”. When asked whether he could produce the bank statements, he responded, “if I had to”.

19. In response to questions from counsel for the insurer about the photographs uploaded on social media in the desktop investigation reports, Mr Lukic stated that many of those photographs were taken before the motor accident. Some were taken 15 years ago.

20. In response to questions from counsel for the insurer about the Dapto soccer social media photographs, Mr Lukic stated that they were taken a long time ago, as was the photograph of him dancing. The photographs may have been uploaded on 21 November 2022 but it has been a long time since he had played soccer. He disagreed that the photographs shown to him on pages 119-120 of the insurer’s documents were taken on 20 November 2022. He agreed that the photographs were taken at a St John the Baptist Serbian Orthodox Church Dapto charity event but not on 20 November 2022. The church organised charity parties all the time. He was not in the photographs (insurer’s documents at page 262) taken at the event on 20 November 2022 and uploaded to social media by the church. He last played soccer prior to his gall bladder operation in 2020.

21. In response to questions from counsel for the insurer about the social media photographs of him at Skadarlija Bar and Grill Café on pages 116 and 117 of the insurer’s documents, Mr Lukic agreed that he was in those photographs. He had dressed up in a red shirt, black vest and black trousers as a joke. His daughter got the outfit for him. It was not the uniform worn by staff members of the café. No other staff member was wearing such a uniform. It was the café’s opening day. In respect of the photographs on page 124 of the insurer’s documents, Mr Lukic stated that he thought it depicted him filming at the café on a mobile phone in the background.

22. In response to questions by his senior counsel in re-examination, Mr Lukic stated that, by the time of the motor accident, his hair had gone grey.

23. The insurer relied on the M & A Investigations surveillance report dated 15 December 2023 (M & A report #1).

24. M & A report #1 provided an overview of the surveillance conducted and reported that Mr Lukic was observed working at the Skadarlija Bar and Grill Café on 25 November 2023, 8 December 2023 and 15 December 2023 and that, on these occasions, he was observed setting up tables, taking orders from customers, serving customers, working behind the bar and organising items around the restaurant. The report summarised Mr Lukic’s activities on each of those three dates[18] and about 42 minutes of video surveillance formed part of the report.

    [18] Insurer's documents at pages 186-187.

25. In his evidentiary statement, Mr Lukic explained that, on 25 November 2023, he was doing a favour for the staff of Skadarlija Bar and Grill Café after being asked to either place or readjust a sandwich board sign at the front of the premises. It was a simple mundane task he performed as a favour to the staff because he is a friend of Mr Tesic, the café owner.[19]

    [19] Claimant's documents at pages 28-29 at [178].

26. In his evidentiary statement, Mr Lukic explained that, on 8 December 2023, he was assisting his friend, Mr Tesic, to prepare for a Christmas party at Skadarlija Bar and Grill Café.[20] Mr Lukic’s explanation related to the video footage allegedly showing him moving in and out of the café, setting up a table, replacing a sign on the driveway, adjusting a spotlight on the front wall, working at the bar with a female and remaining on-site until, at least, midnight.

    [20] Claimant's documents at page 29 at [179].

27. In his evidentiary statement, Mr Lukic explained that, on 15 December 2023, he was a guest invited by Mario to a Christmas party held at Skadarlija Bar and Grill Café. As the evening progressed and more guests arrived, he was asked by Mr Tesic, as a friend, to help with minor tasks at the venue. He explained that, on the video footage, he was entering the café carrying a blue bag with almond milk which he was requested to bring to the venue because it was required for the coffee machines that the staff operated on that day. He referred to the video footage depicting him carrying two beers in hand which he explained was for a friend. The café was so busy he helped to lighten the workload of the staff. He also explained that he was doing a favour for the staff when he was bringing cups to or from a table. He again confirmed that he was not employed by the café or paid for his assistance.[21]

    [21] Claimant's documents at page 29 at [180]-[182].

1. In response to questions from counsel for the insurer, Mr Lukic denied that he was seen taking orders from people at Skadarlija Bar and Grill Café in the video footage taken on 25 November 2023, 8 December 2023 and 12 December 2023. He denied that he was performing the functions of a waiter at the café in the video taken on 15 December 2023 because that was a Christmas party and everyone served themselves. He took drinks to his friends outside. He denied cleaning tables. In response to the proposition that the activities he undertook in the video taken on 15 December 2023 demonstrated a greater freedom of activity than he had disclosed to the doctors who had examined him, he responded, “ask my doctors about that”. He stated that he was experiencing big problems and he told his doctor that he wanted to kill himself. The doctor then called his daughter and told her.

2. At that point, Mr Lukic became visibly upset and left the hearing room. The assessment conference continued after a short adjournment.

3. Throughout his evidence, Mr Lukic maintained that the clothing he wore when videoed at Skadarlija Bar and Grill Café came from his own wardrobe and was not a café uniform. This was corroborated by Mr Tesic’s evidence.

4. Procare desktop investigation report dated 15 February 2024 (Procare report #1) attached ABN searches and social media searches and concluded that Mr Lukic was found to be a proprietor of the property in which his business interest, Skadarlija Café, is situated. Further, it concluded that social media analysis found that he was likely to be an employee of the workplace.

5. In his evidentiary statement, Mr Lukic maintained that he had never been the owner,
   

   [22] Claimant's documents at page 30 at [183]-[184].

   part-owner or an employee of Skadarlija Bar and Grill Café and that this had been corroborated by Mr Tesic. He stated that he used Facebook to help Mr Tesic and his wife promote the café.[22]

6. In his evidentiary statement, Mr Lukic explained that he registered his ABN with the name “Skadarlija 632” erroneously thinking that he was helping Mr Tesic. He stated that he stupidly became a joint lessee on the lease of the Skadarlija Bar and Grill Café premises as a friend of Mr Tesic and because he wanted to help his daughter get a job at the café. As a consequence, he paid the deposit on the lease and thought that he was being sensible by putting his name on the lease to enable him to recover the deposit. He stated:

   “Like many other things concerning business, I did not think this through, nor did I know how to.”[23]

   [23] Claimant's documents at page 40 at [224].

7. The insurer relied on the Procare supplementary desktop investigation report dated 20 May 2024 (Procare report #2).

8. Procare report #2 concluded that, an analysis on social media platforms including deep web searches, confirmed St John the Baptist Serbian Orthodox Church Dapto held the Dapto Cup on 22 November 2022. This analysis was related to the soccer photographs and video footage referred to above. The report noted that further analysis of the church’s social media account located a post by the Facebook page administrator on 20 November 2022 with a series of images and the text, “Dapto Cup 2022”. However, Mr Lukic was not depicted in those images but the event singer in a green dress was in the photographs. The author concluded that this confirmed that the images (including those of Mr Lukic in other posts) were captured at the event on 20 November 2022. Without further evidence and in the absence of any photographs of Mr Lukic from the author’s deep web searches, I am not prepared to draw the conclusion reached by the author of the report.

9. The insurer relied on M & A Investigations surveillance report dated 22 June 2024 (M & A report #2).

10. M & A report #2 provided an overview of the video surveillance conducted and reported that Mr Lukic was observed coming and going from Skadarlija Bar and Grill Café on 21 June 2024 and 22 June 2024. The report listed his activities and movements on each of those dates.[24] The video surveillance accompanying the report was about eight minutes in length.

    [24] Insurer's documents at pages 267-268.

11. In response to questions from counsel for the insurer, Mr Lukic stated that, in the past six months, he had attended the café on Fridays and Saturdays at his daughter’s invitation. He was last there last Saturday. He stated that he had not been shown video footage of him attending the café on Friday, 21 June 2023 and Saturday, 22 June 2024. He went to the café often because he did not live far from there. He recalled lifting large styrofoam black panels at the front of the café and placing them up against a wall. He could not recall driving away from the café and coming back. It was not part of his job to go and get things for the café. He goes there sometimes to watch games on the café’s television. The café is not known as the Serbian Club.

12. In response to questions by his senior counsel in re-examination, Mr Lukic stated that, the black panel in the video footage in June 2024 was made of styrofoam.

The evidence of the treatment providers

1. The nature of this claim requires an analysis of the relevant medical evidence prior to and following the motor accident.

Relevant pre-accident medical history

1. On 7 September 2001, Mr Lukic consulted Dr Velibor Todorovic, general practitioner, complaining of nightmares and was prescribed Zoloft.[25]

   [25] Claimant's documents at page 173.

2. On 7 February 2002, Mr Lukic consulted Dr Todorovic complaining of feeling nervous and experiencing nightmares.[26]

   [26] Claimant's documents at page 173.

3. On 26 July 2003, Mr Lukic consulted Dr Todorovic complaining of feeling weak and losing his balance towards his left side.[27]

   [27] Claimant's documents at page 173.

4. On 29 July 2003, Mr Lukic consulted Dr Todorovic again complaining of dizziness.[28]

   [28] Claimant's documents at page 173.

5. On 15 July 2009, Mr Lukic consulted Dr Todorovic complaining of feeling depressed and not sleeping well. He was prescribed Avanza 30mg tablets.[29]

   [29] Claimant's documents at page 174.

6. On 11 December 2009, Mr Lukic consulted Dr Todorovic complaining of insomnia and was prescribed Avanza 30mg tablets.[30]

   [30] Claimant's documents at page 174.

7. On 29 January 2010, Mr Lukic consulted Dr Todorovic complaining of right shoulder pain for the past two months and was referred for an ultrasound of his right shoulder.[31]

   [31] Claimant's documents at page 174.

8. On 1 February 2010, Mr Lukic underwent an ultrasound of his right shoulder that demonstrated an intact rotator cuff and a small area of tendinosis within the right supraspinatus tendon.[32]

   [32] Claimant's documents at page 176.

9. The entry in Dr Todorovic’s clinical records regarding Mr Lukic on 12 August 2016, referred to a right shoulder ultrasound. No other relevant details were recorded. There was a reference to bilateral tinnitus and a hearing assessment.[33]

   [33] Claimant's documents at page 170-171.

10. On 13 November 2017, Mr Lukic consulted a general practitioner at Allcare Medical Centre complaining of an exacerbation of chronic back pain. On examination, the doctor observed that Mr Lukic was walking slowly and stiffly; there was a restricted range of motion in the lumbar area in all directions; and sensation and reflexes were normal in both legs. He was prescribed Tramadol 100mg tablets and referred for a CT scan of his lumbar spine, noting the presence of back pain radiating to the right gluteal area.[34]

    [34] Insurer's documents at page 347.

11. On 17 November 2017, Mr Lukic underwent a CT scan of his lumbosacral spine by Dr Chee Hiew, radiologist. Dr Hiew concluded that there were degenerative disc space changes; a marked central spinal canal stenosis at L4/5; lateral recess narrowing on both sides at that level; a focal right posterolateral disc protrusion at L4/5 extending inferiorly to the subarticular recess compressing the right L5 nerve root.[35]

    [35] Claimant's documents at pages 384-385.

12. On 1 December 2017, Mr Lukic consulted a general practitioner at Allcare Medical Centre and discussed the outcome of his recent lumbar CT scan. He was advised to continue taking Tramadol and was referred to Dr Balsam Darwish, neurosurgeon.[36]

    [36] Insurer's documents at page 348.

13. On 15 December 2017, Mr Lukic consulted a general practitioner at Allcare Medical Centre complaining of an ongoing back problem. He was provided with another prescription for Tramadol 100mg tablets. The doctor explained to him the CT scan results and emphasised the need to consult the neurosurgeon.[37]

    [37] Insurer's documents at page 349.

14. On 4 June 2018, Mr Lukic consulted a general practitioner at Allcare Medical Centre complaining of back pain with radiculopathy. The doctor advised that he needed to consult a neurosurgeon and he was again referred to Dr Darwish.[38] There is no evidence that Mr Lukic consulted Dr Darwish.

    [38] Insurer's documents at page 350.

15. On 31 August 2018, Mr Lukic consulted a general practitioner at Allcare Medical Centre complaining of chronic right back pain with radiculopathy. He was referred to a neurosurgeon, Dr Renata Bazina.[39] There is no evidence that Mr Lukic consulted Dr Bazina.

    [39] Insurer's documents at page 354 and page 441.

16. On 5 September 2018, Mr Lukic consulted Dr Renata Abraszko, neurosurgeon, complaining of back pain radiating to his right leg over the past year. Dr Abraszko noted that the pain was constant, that he had difficulties with walking long distances and that he worked on a building site. On examination, the Lasegue’s sign on the right side was 80°; power, tone, reflexes and sensation were normal; and there was tenderness over the lumbar spine. She noted the findings of the lumbosacral CT scan dated 17 November 2017 and recommended an MRI scan of the lumbar spine.[40]

    [40] Claimant's documents at page 74.

17. On 24 September 2018, Mr Lukic underwent an MRI scan of his lumbosacral spine by Dr Werdi, radiologist. Dr Werdi found degenerative changes at the lower lumbar spine, predominantly at the L4/5 level with impingement of the descending L5 nerve roots bilaterally within the lateral recesses, greater on the right than the left. It was also noted that there was disc contact of the exiting right L3 and L4 nerve roots.[41]

    [41] Claimant's documents at pages 386-387.

18. On 7 November 2018, Mr Lukic consulted Dr Abraszko, who reported to Dr Khan on the outcome of the recent lumbosacral MRI scan. Dr Abraszko noted that Mr Lukic complained of numbness in the right leg and some back pain but that there was no pain in the right leg. Following a long discussion with Mr Lukic, she recommended stretching, core exercises and a right L4/5 epidural injection. If the injection worked, it could be repeated in three months. If not, treatment options included surgery or persevering with the pain.[42]

    [42] Claimant's documents at page 75.

19. On 7 November 2018, Mr Lukic consulted a general practitioner at Allcare Medical Centre complaining of right sided back pain with radiculopathy and advising that he had consulted Dr Renata Abraszko, neurosurgeon, and that she had referred him for a right L4/5 epidural injection.[43]

    [43] Insurer's documents at page 356.

20. On 14 November 2018, Mr Lukic underwent a CT guided lumbar epidural injection in the right L4/5 by Dr Ryan Rudolph, radiologist.[44]

    [44] Claimant's documents at page 388.

21. On 6 August 2019, Mr Lukic consulted a general practitioner, Dr Aysha Lodhi, at Allcare Medical Centre reporting that he had noted pain on both sides of his back the previous day and was also concerned that he may have kidney stones. On examination of Mr Lukic’s back, a full range of motion was observed and no neurological symptoms were noted.[45]

    [45] Insurer's documents at page 357.

22. On 15 August 2019, Mr Lukic underwent a CT scan of the kidneys, ureters and bladder (KUB) on the referral of Dr Lodhi. The radiologist concluded that there was no hydronephrosis or opaque renal tract calculus. However, a 9mm calculus was noted in the neck of the gall bladder.[46]

    [46] Claimant’s documents at page 389.

23. Thereafter, there were no further entries in Mr Lukic’s various general practitioner clinical records in evidence referring to consultations in respect of back pain (with or without
    right-sided radiculopathy) or right shoulder symptoms prior to the motor accident. Although, in Dr Sofic’s referral letter to St George Hospital dated 7 October 2020, there was a reference under past history to back and leg pain on 14 August 2020 and to the prescription of Voltaren 50mg tablets, and the prescription of Panadeine Forte 500mg/30mg tablets on 3 September 2020, which I could not locate in any entry in the various general practitioner clinical records. Further, Mr Lukic’s evidentiary statement referred to a consultation with a doctor at Allcare Medical Centre on 6 September 2019 in respect of left lumbar pain, which I could not locate in any entry in the various general practitioner clinical records.

24. In an allied health recovery request by Mr Vladimir Colovic, physiotherapist, of Holistic Physiotherapy dated 4 March 2021, Mr Colovic referred to “lower back pain two years ago”.[47] In a report dated 7 April 2022, Dr Drew Dixon, consultant orthopaedic surgeon, noted that, in August 2020, Mr Lukic had a history of low back pain with sciatica.[48] It is not clear where Dr Dixon obtained that information, but it was likely Dr Sofic’s referral letter referred to above.

    [47] Insurer's documents at page 325.

    [48] Claimant's documents at page 356.

Relevant post-accident medical history

1. On 7 October 2020, shortly after the motor accident, Mr Lukic consulted Dr Veda Sofic, general practitioner, complaining of neck pain, headache and dizziness. Dr Sofic noted that Mr Lukic had been involved in a motor accident at an intersection controlled by traffic lights where he had been stationary. He heard the loud sound of brakes and felt a hit from behind. On examination, Dr Sofic observed cervical spine midline tenderness and no other injuries.[49] She provided Mr Lukic with a referral to the admitting officer of St George Hospital emergency department.[50]

   [49] Claimant's documents at page 261.

   [50] Claimant's documents at page 76.

2. Late in the afternoon on 7 October 2020, Mr Lukic presented to St George Hospital emergency department where he was triaged and examined. The hospital’s discharge referral noted that he was the driver of a vehicle stationary at traffic lights when hit from behind at an unknown speed. He was unsure as to whether he lost consciousness and was vague with his history. He complained of neck pain with cervical spine tenderness, dizziness, headache, mild chest and sternum pain and left elbow tenderness. Chest/sternum and left elbow X-rays revealed no abnormalities. A CT scan of the brain revealed no acute intracranial injury. A CT scan of the cervical spine demonstrated mild degenerative changes associated with C6/7 disc osteophytes complex with mild narrowing of the spinal canal and mild neural exit stenosis bilaterally but no acute cervical injury. Medical staff suspected that Mr Lukic was likely experiencing a mild concussion as well as muscular neck pain as a result of the motor accident. He was admitted overnight and discharged on 8 October 2020.[51]

   [51] Claimant's documents at pages 313-346.

3. On 8 October 2020, Mr Lukic consulted Dr Kuzmanovski, general practitioner, of Family Medical Centre who recorded a history that Mr Lukic had been involved in a motor accident the previous day whilst waiting at a red signal when he was hit from behind. He consulted a general practitioner who suggested a review at hospital. A friend took him to hospital where he was examined, investigated, observed and sent home on simple analgesia. Dr Kuzmanovski recorded Mr Lukic‘s current complaints as neck pain and stiffness with bilateral referred arm pain, headaches with dizziness and tenderness over the rib muscles. He was referred for MRI scans of the cervical spine and the brain.

4. On 12 October 2020, Mr Lukic consulted Dr Kuzmanovski advising that, on the morning of 9 October 2020, he woke up and was unable to get up from bed. He complained of low back pain with right sided radiculopathy. He had undergone physiotherapy on the previous day but was now in much pain, including pain radiating into the right leg with numbness in the right heel. He was prescribed Palexia 50mg tablets and referred for an MRI scan of his lumbar spine.

5. On 15 October 2020, Mr Lukic consulted Dr Sofic for review, informing her that he had spent a night in St George Hospital after having undergone CT scans of his brain and neck. He complained of intermittent headache and dizziness. Dr Sofic advised him to undergo an outpatient MRI brain scan if symptoms persisted. He also reported lower back pain radiating down the right leg with pins and needles in the right foot. On examination, Dr Sofic observed a restricted spinal range of motion and referred him for a CT scan of the lumbosacral spine. She prescribed Panadeine Forte tablets 500mg/30mg.[52]

   [52] Claimant's documents at page 262.

6. On 16 November 2020, Mr Lukic consulted Dr Kuzmanovski complaining of ongoing headaches. He was referred to Professor Steve Vucic, consultant neurologist and Dr Nikola Tomic, psychologist.[53]

   [53] Claimant's documents at page 230.

7. On 23 November 2020, Dr Tomic prepared a report in response to a request from the insurer.[54] Dr Tomic provided a brief description of the motor accident that was consistent with the evidence. Mr Lukic reported that his physical symptoms, as a result of the motor accident, included constant neck pain, causing difficulties moving his head in any direction; frequent and severe headaches with unclear vision; bilateral shoulder pain and stiffness with pain radiating down the right arm and numbness in the right hand; and lumbar pain radiating down the right hip and right leg.

   [54] Claimant's documents at pages 78-81.

8. Dr Tomic reported that Mr Lukic complained of psychological consequences following the motor accident that included sleep disturbance; hypersensitivity to situations related to traffic; loss of confidence when driving; inability to enjoy any kind of activity or recreation; chronic fatigue; loss of energy; a pessimistic attitude towards his ability to return to work; daily attacks of agitation or restlessness; difficulty sustaining concentration; and loss of appetite. He noted that Mr Lukic denied a pre-accident history of the above psychological or physical symptoms.

9. Dr Tomic diagnosed Mr Lukic with an adjustment disorder with mixed anxiety and depressed mood. He noted that Mr Lukic denied suffering from the above prior to the motor accident and opined that his present psychological condition was a direct consequence of the motor accident.

10. On 1 December 2020, Mr Lukic consulted Dr Kuzmanovski for review. Mr Lukic advised that he had consulted Dr Tomic and booked an appointment with Professor Vucic for 12 December 2020.[55]

    [55] Claimant's documents at page 230.

11. On 12 December 2020, Mr Lukic consulted Professor Steve Vucic, consultant neurologist, on the referral of Dr Kuzmanovski. Professor Vucic reported to Dr Kuzmanovski that Mr Lukic complained of headaches that had commenced following the motor accident. He took a history of the motor accident that was, in the main, consistent with the evidence and noted that Mr Lukic had sustained a whiplash injury and a feeling of dizziness and tinnitus and then the onset of headache and neck pain about 30 minutes later. There were no migrainous features about the headaches. Neurological examination was normal. Professor Vucic opined that the clinical features were most consistent with a whiplash-type injury superimposed along with secondary tension type headaches. He arranged for Mr Lukic to undergo MRI scans of the brain and the cervical spine along with neurophysiological testing of the upper limbs.[56]

    [56] Claimant's documents at pages 82-83.

12. On 8 January 2021, Mr Lukic consulted Dr Kuzmanovski for review. Mr Lukic advised that he had consulted Professor Vucic, who was to arrange for further investigations. He stated that he was confused about the insurance claim procedure. He was prescribed Palexia immediate release (IR) 50mg tablets.[57]

    [57] Claimant's documents at pages 230-231.

1. On 9 February 2021, Mr Lukic underwent a nerve conduction study on his upper limbs by Professor Vucic. The neurophysiological study was normal.[58]

   [58] Claimant's documents at pages 84-85.

2. On 11 February 2021, Mr Lukic consulted Dr Kuzmanovski for review complaining that he had not received any approvals from the insurer for treatment. Dr Kuzmanovski advised that it was time for him to commence physiotherapy and referred him to Mr Jerry Filippatos, physiotherapist.[59]

   [59] Claimant's documents at page 231.

3. On 2 March 2021, Mr Lukic consulted Dr Kuzmanovski for review complaining of ongoing headaches and low back pain. His physiotherapist had contacted the insurer but the insurer was not responding. The physiotherapist would not treat Mr Lukic. He requested a new referral. Dr Kuzmanovski referred him to Mr Vladimir Colovic, physiotherapist and prescribed Palexia IR 50mg tablets.[60]

   [60] Claimant's documents at pages 231-232.

4. On 18 March 2021, Mr Lukic underwent MRI scans of his head, cervical spine, thoracic spine and lumbar spine on the referral of Professor Vucic. The scans were, for some reason, not reported until 16 April 2021. The MRI scan of the brain was essentially normal apart from some small foci of hyperintense T2/FLAIR signal in the white matter of the cerebral hemispheres which were non-specific. In respect of the cervical spine, there were mild to moderate multilevel spondylotic changes with posterior disc and osteophyte complex most prominent at C4/5 and C6/7, causing mild to moderate spinal canal stenosis at C6/7. There was a marked right foraminal stenosis due to degenerative hypertrophy of the uncovertebral joint with probable impingement of the exiting C7 nerve root and mild to moderate foraminal stenosis on the left side. In respect of the lumbar spine, there was disc dehydration at all levels except L1/2. There were tiny posterior annular fissures at L3/4 and L4/5. At L2/3 and L3/4, there was mild broad-based disc bulge without causing significant spinal canal or foraminal stenosis. At L4/5, there was broad-based disc bulge in combination with flaval hypertrophy causing moderate spinal canal stenosis. At L5/S1, there was reduction in disc height with end plate degenerative signal but no significant spinal canal stenosis. There was moderate left and mild right foraminal stenosis. Further correlation with any L5 radiculopathy symptoms was recommended.[61]

   [61] Claimant's documents at pages 393-396.

5. On 23 March 2021, Professor Vucic reported to Dr Kuzmanovski that Mr Lukic had consulted him that day. Since his last review, Mr Lukic had been undergoing physiotherapy and felt that there was some benefit from it. There were no new neurological symptoms. He continued to complain of numbness in his left upper limb and lower limbs. The nerve conduction studies of the upper limbs were unremarkable and Professor Vucic awaited reporting of the MRI scans. Having reviewed the films himself, he felt that there were osteoarthritic changes at the mid cervical level without any nerve root or spinal cord compression.[62]

   [62] Claimant's documents at page 88.

6. On 6 April 2021, Mr Lukic consulted Dr Kuzmanovski who issued him with a further Certificate of Capacity.[63]

   [63] Claimant's documents at page 232.

7. On 8 April 2021, Mr Lukic consulted Dr Kuzmanovski complaining of ongoing problems with anxiety, insomnia, chronic pain and depressed mood. Dr Kuzmanovski referred him to Dr Blagoje Kuljic, psychiatrist.[64]

   [64] Claimant's documents at pages 232-233.

8. On 3 May 2021, Mr Lukic consulted Dr Kuzmanovski advising that the insurer had refused to pay for treatment by Dr Kuljic. The clinical records noted that Dr Kuzmanovski wrote to the insurer, presumably in respect of the referral to Dr Kuljic. Dr Kuzmanovski also prescribed Palexia IR 50mg tablets.[65]

   [65] Claimant's documents at page 233.

9. On 25 May 2021, Mr Lukic consulted Dr Kuzmanovski and discussed the recent MRI scan of his thoracic spine and cervical spine arranged by Professor Vucic.[66]

   [66] Claimant's documents at pages 233-234.

10. On 1 June 2021, Mr Lukic consulted Dr Kuzmanovski and was issued with a Certificate of Capacity. He was advised to consult Dr Kuljic as planned and prescribed Palexia IR 50mg tablets.[67]

    [67] Claimant's documents at pages 234-235.

11. On 6 June 2021, Dr Kuljic reported to Dr Kuzmanovski that Mr Lukic had consulted him on 2 June 2021. Mr Lukic complained to Dr Kuljic of mental health issues as a consequence of the motor accident. He complained that it triggered intrusive memories and nightmares related to the accident, causing strong emotional reaction. He suffered from flashbacks of the impact and avoided thoughts or discussions about the motor accident because they triggered an upsetting emotional reaction. He had suffered a loss of appetite since the motor accident and sleep had been impaired, in that, he awakened every two hours or more frequently. He described becoming irritable, snappy and argumentative which impacted on his interpersonal relationship, including the one with his son. He described feeling negative and sad and a significant decrease of interest and motivation for activities. He had stopped socialising and had become withdrawn. Attention span had been impaired and he had become forgetful. He was pessimistic and had no hope he would get better. Dr Kuljic Opined that Mr Lukic presented with symptoms of post-traumatic stress disorder caused by the motor accident. He prescribed Mirtazapine 15mg nightly.[68]

    [68] Claimant's documents at pages 91-92.

12. On 18 June 2021, Professor Vucic reported to Dr Kuzmanovski that Mr Lukic had consulted him that day. He noted that Mr Lukic’s condition had not appreciably changed and that he continued to report neck, occipital and left shoulder pain. The MRI scans demonstrated widespread osteoarthritic changes in the cervical spine and lumbosacral spine. The MRI scan of the brain disclosed non-specific white matter changes. Professor Vucic opined that the clinical features were most consistent with an underlying musculoskeletal condition. He recommended ongoing physiotherapy and hydrotherapy.[69]

    [69] Claimant's documents at pages 93-94.

13. On 5 July 2021, Mr Lukic consulted Dr Kuzmanovski advising that he had consulted Dr Kuljic and Professor Vucic recently. Dr Kuljic diagnosed him with post-traumatic stress disorder and started him on Mirtazapine 15mg nightly. Mr Lukic advised that the insurer had ceased paying for physiotherapy and hydrotherapy. He complained of ongoing dizziness and reduced hearing since the motor accident. Dr Kuzmanovski referred him to Australian Hearing and Balance for consultation and management and was prescribed Mirtazapine 15mg tablets nightly.[70]

    [70] Claimant's documents at pages 235-236.

14. On 2 August 2021, Mr Lukic consulted Dr Kuzmanovski for review. He was issued with a certificate of capacity and prescribed Palexia IR 50mg tablets.[71]

    [71] Claimant's documents at pages 236-237.

15. On 31 August 2021, Mr Lukic consulted Dr Kuzmanovski for review and was issued with a Centrelink certificate and a prescription for Palexia IR 50mg tablets.[72]

    [72] Claimant's documents at pages 237-238.

16. On 30 September 2021, Mr Lukic consulted Dr Kuzmanovski for review, was advised to continue with his current management and was issued with a further certificate of capacity.[73]

    [73] Claimant's documents at pages 238-239.

17. On 13 October 2021, Mr Lukic consulted Dr Kuzmanovski for review complaining of ongoing neck and lower back pain. Physical examination revealed restrictions in the ranges of movement in the cervical spine and in the lumbar spine. He was referred for MRI scans of his cervical spine and lumbar spine.[74]

    [74] Claimant's documents at page 239.

18. On 13 October 2021, Mr Lukic underwent MRI scans of his cervical spine and lumbar spine. In respect of his cervical spine, the radiologist concluded that there were disc protrusions at the C4/5, C5/6 and C6/7 levels, worse at the C5/6 and C6/7 levels with large osteophytes at C6/7 markedly indenting the thecal sac. The foramina were narrowed at C5/6 and C6/7 levels on both sides, compressing the nerve roots. In respect of his lumbar spine, the radiologist concluded that there were disc protrusions, most pronounced at L3/4 and L4/5, showing annular tears. The spinal canal was indented side to side by facet arthropathy at the L4/5 and L5/S1 levels.[75]

    [75] Claimant's documents at pages 398-399.

19. On 1 November 2021, Mr Lukic consulted Dr Kuzmanovski for a review of the outcome of his cervical spine and lumbar spine MRI scans. Dr Kuzmanovski recommended that he consult specialists in respect of the pathology demonstrated on the medical imaging and referred him to Dr Geoffrey Rosenberg and Dr Peter Khong.[76]

    [76] Claimant's documents at pages 239-240.

20. On 16 November 2021, Mr Lukic consulted Dr Kuzmanovski complaining of ongoing neck pain with radiculopathy and back pain with radiculopathy. Physical examination revealed restrictions in the ranges of movement in the cervical spine and in the lumbar spine.[77]

    [77] Claimant's documents at pages 240-241.

21. On 2 December 2021, Mr Lukic consulted Dr Kuzmanovski for review and was issued with a further certificate of capacity. He was advised to continue with his current management and report any changes or concerns.[78]

    [78] Claimant's documents at pages 241-242.

22. On 22 December 2021, Dr Geoffrey Rosenberg, orthopaedic surgeon, reported to Dr Kuzmanovski that Mr Lukic had consulted him in respect of his back pain radiating into his right leg with dysaesthesia in his left foot following the motor accident. He noted that, initially, Mr Lukic spent a day in hospital. Thereafter, he tried physiotherapy that had been of
    short-term benefit without a great deal of improvement. Mr Lukic complained that all positions hurt and that his back continued to trouble him more so than the leg. Pain down the leg radiated as far as the top of his foot in an L5 distribution. On clinical examination, Dr Rosenberg observed that Mr Lukic was tall and slim. He was stiff and uncomfortable, barely forward flexing to his knees. There was weakness in the gluteal muscles bilaterally, right more so than left. Straight leg raising on the right reproduced back and gluteal pain. There was weakness of the toe dorsi flexion of the right foot.

23. Dr Rosenberg noted that an MRI scan of Mr Lukic’s back in 2020 demonstrated a broad L4/5 disc bulge with some stenosis. A more recent MRI scan demonstrated that the disc protrusion had increased in size, more to the right side with stenosis. Dr Rosenberg concluded as follows:

    “Certainly this disc injury seems to explain his symptoms. The next step is for him to try and [sic: an] L5 nerve root block which has a 50 to 70% chance of helping. Should it fail to do so he may well require surgical intervention by way of discectomy and neurolysis. No doubt I will see him in the new year should he not obtain substantial relief from the injection.”[79]

    [79] Claimant's documents at page 107.

24. On 4 January 2022, Mr Lukic consulted Dr Kuzmanovski for review and the issue of a further certificate of capacity. He was advised to continue with his current management.[80]

    [80] Claimant's documents at page 243.

25. On 12 January 2022, Mr Lukic consulted Dr Kuzmanovski advising that he had seen Dr Rosenberg who had referred him for a nerve root block. They discussed the process. Dr Kuzmanovski prescribed Panadeine Forte 500mg/30mg tablets.[81]

    [81] Claimant's documents at pages 243-244.

26. On 27 January 2022, Dr Khong reported to Dr Kuzmanovski that Mr Lukic had consulted him that day. Dr Khong reported a brief history of the motor accident and the medical treatment received by Mr Lukic thereafter that was consistent with the evidence. Mr Lukic reported neck pain, lower back pain and right leg pain. He noted that physiotherapy had provided some transient relief of symptoms.

27. Dr Khong noted that Mr Lukic complained of persistent midline posterior neck pain radiating to both trapezii; constant numbness down both arms and forearms to the ring and little fingers with a sensation of weakness in the hands; neck pain and stiffness worse in the morning; midline lower back pain and along the whole spine when walking; pain radiating down the lateral right thigh and leg to the top of the foot with numbness in the whole foot; and intermittent urinary incontinence a few times per week.

28. Dr Khong conducted a physical and neurological examination and reported its outcome. He referred to and summarised the medical imaging, namely, the MRI scans of the cervical spine, the thoracic spine and the lumbar spine dated 18 March 2021 and the MRI scan of the lumbar spine dated 13 October 2021.

29. Dr Khong concluded his report with the following observations and opinions:

    “Mr Lukic presents with neck pain, bilateral shoulder pain, bilateral arm weakness, lower back pain and right leg pain after a car accident over a year ago. His accident caused musculoligamentous strain as well as exacerbation of pre-existing degenerative changes in his cervical and lumbar spine. His MRI cervical spine demonstrates degenerative disc disease worse at C6/7 with canal and right sided lateral recess stenosis. His MRI lumbar spine demonstrates multi-level degenerative disc disease with annular tears at multiple levels, bilateral lateral recess stenosis at L4/5 and right sided lateral recess stenosis at L5/S1. His right leg symptoms may be coming from right L5 +/- S1 compression. I have organised for him to have right L5 and S1 perineural injections. I have organised for him to have a bone scan of his whole spine to look for any pain generators. I will review him in a few months to follow his progress. He should continue with physiotherapy.”[82]

    [82] Claimant's documents at pages 110-112.

30. On 1 February 2022, Mr Lukic consulted Dr Kuzmanovski advising that he had seen Dr Khong who had referred him for a bone scan and suggested that he continue with his current management, including physiotherapy. Dr Kuzmanovski issued a further Certificate of Capacity.[83]

    [83] Claimant's documents at pages 244-245.

31. On 15 February 2022, Mr Lukic consulted Dr Kuzmanovski for review advising that his situation remained the same. He was issued with a further certificate of capacity and advised to continue with his current management.[84]

    [84] Claimant's documents at page 245.

32. On 16 February 2022, Dr Kuljic reported to Dr Kuzmanovski that Mr Lukic had continued engaging in psychiatric treatment for the motor accident related post-traumatic stress disorder and continued to report good compliance with medication. The medication had been gradually increased and he was currently on Mirtazapine 60mg nightly. Mr Lukic was also instructed to practice relaxation exercise. Dr Kuljic reported an improvement in Mr Lukic’s mental state but that the level of remaining symptoms required ongoing treatment. He observed that Mr Lukic was committed to continue participating in the treatment.[85]

    [85] Claimant's documents at page 113.

33. On 30 March 2022, Mr Lukic consulted Dr Kuzmanovski for review advising that his situation remained the same. He was issued with a further certificate of capacity and advised to continue with his current management.[86]

    [86] Claimant's documents at pages 245-246.

34. On 4 April 2022, Dr Kuljic reported to Dr Kuzmanovski that Mr Lukic had continued engaging in psychiatric treatment and was reporting good compliance with medication. He noted that Mr Lukic had travelled overseas to see his terminally ill brother but his brother had died before he arrived. Under additional pressure, Centrelink payments had ceased and his pain had worsened. He had ongoing post-traumatic stress disorder symptoms, insomnia, irritability and feelings of desperation. Dr Kuljic added Melatonin 2mg nightly until his sleep cycle normalised.[87]

    [87] Claimant's documents at page 114.

35. On 19 April 2022, Mr Lukic underwent a whole body bone scan with SPECT on the referral of Dr Khong. The radiologist concluded that the scan findings were consistent with mild to moderate degenerative arthritis at the C6/7 discovertebral joint and low-grade degenerative arthritis in the left L4/5 and in the bilateral L5/S1 facet joints.[88]

    [88] Claimant's documents at pages 400-401.

36. On 20 April 2022, Mr Lukic underwent a CT guided right L5 perineural steroid local anaesthetic injection on the referral of Dr Khong.[89]

    [89] Claimant's documents at page 402.

37. On 21 April 2022, Mr Lukic consulted Dr Kuzmanovski complaining of insomnia. He advised that Dr Kuljic had changed his medications and that he required prescriptions for pain relief. Dr Kuzmanovski prescribed two Axit 30mg tablets daily, Melatonin 2mg tablets nightly and Palexia IR 50mg tablets.[90]

    [90] Claimant's documents at pages 246-247.

38. On 26 April 2022, Mr Lukic underwent a CT guided right S1 nerve root injection on the referral of Dr Khong. The radiologist noted that Mr Lukic tolerated the procedure well.[91]

    [91] Claimant's documents at page 403.

39. On 29 April 2022, Mr Lukic consulted Dr Kuzmanovski advising that his situation remained the same. He was reviewed, advised to continue with current management, report any changes or concerns and issued with a new certificate of capacity.[92]

    [92] Claimant's documents pages 247-248.

40. On 9 May 2022, Dr Khong reported to Dr Kuzmanovski that Mr Lukic had consulted him that day. Dr Khong repeated the history of presenting complaint as recorded in his earlier report and added that Mr Lukic had undergone a right L5 perineural injection on 20 April 2022 followed by a right S1 perineural injection on 26 April 2022. He noted that Mr Lukic felt that the first injection had helped him but the second injection did not help as much.

41. Dr Khong reported that Mr Lukic continued to complain of right-sided lower back pain and that whilst his right leg pain had improved, he still experienced numbness in the top of the left foot and toes. He started getting left leg pain a week ago that radiated from the left back, down the left buttock, posterolateral thigh and calf. It was worse with sitting and walking. He also complained of persistent midline and bilateral paraspinal neck pain radiating to both trapezii, which caused headaches. He also experienced some pain in the left shoulder, worse with abduction and some numbness down the posterior right arm and forearm.

42. Dr Khong referred to and summarised the medical imaging, namely, the MRI scans of the cervical spine, the thoracic spine and the lumbar spine dated 18 March 2021; the MRI scan of the lumbar spine dated 13 October 2021; and the bone scan dated 19 April 2022.

43. Dr Khong concluded his report with the following observations and opinions:

    “Mr Lukic continues to complain of lower back pain and bilateral leg symptoms. His right leg pain improved after a right L5 perineural injection, but he has persistent numbness. He has started to get left sided leg pain. I have prescribed him Lyrica, starting at 25mg bd increasing to 75mg bd as tolerated. He is to have a left L5 perineural injection in a month if this doesn't work. He may require a bilateral L4/5 and L5/S1 decompression for his leg pain. Regarding his neck pain, this may be partially coming from C6/7 where there is significant degenerative disc disease, hot on bone scan. For now I have continued to recommend non-operative management. He may require surgery if his symptoms don't settle. He should return to physiotherapy and start hydrotherapy.”[93]

    [93] Claimant's documents at page 119.

44. On 30 May 2022, Mr Lukic consulted Dr Kuzmanovski for review. He was issued with a further certificate of capacity, prescribed Palexia IR 50mg tablets and advised to continue with current management.[94]

    [94] Claimant's documents at pages 248-249.

45. On 2 June 2022, Dr Kuljic reported to Dr Kuzmanovski that Mr Lukic had continued to engage in psychiatric treatment and reported good compliance with medication. Dr Kuljic reported that Mr Lukic’s medication currently consisted of Duloxetine 60mg daily and Quetiapine 25mg nightly for insomnia.[95]

    [95] Claimant's documents at page 121.

1. On 21 December 2022, Mr Lukic underwent an L4/5 decompression and rhizolysis right L5 nerve root surgery at St George Private Hospital performed by Dr Khong.

2. Mr Lukic continues to suffer pain and restriction of movement in his neck, lower back and left shoulder. His neck pain extends across his shoulders, down his left arm and into his head causing headaches and dizziness. He also experiences numbness down the back of his right arm. His shoulder pain prevents him from lifting his left arm above shoulder height. His radicular symptoms down his right leg have improved since lumbar surgery in 2022, however, he still experiences significant pain.

3. Mr Lukic has difficulty with day to day activities, household chores and driving due to his ongoing pain and restricted neck, shoulder and back movement. He experiences anxiousness, depressed mood, and intrusive memories causing fear, palpitations, anxiety and muscle tension. He avoids talking about the motor accident, being near the location where the accident occurred and even driving in general, as it causes him to feel anxious and prompts flashbacks and nightmares.

4. Mr Lukic suffers insomnia and interrupted sleep, low energy and a general decreased ability to experience pleasure. He has difficulty feeling positive and often feels worthless. He has lost interest in most activities. He is irritable and often argumentative, which has caused a significant deterioration in his relationships to the extent that his son is now estranged from him and he has had to move out of the home he was previously sharing with his son. He is extremely worried and pessimistic about his future.

5. Mr Lukic may require further surgery in the future.

6. The insurer’s cross-examination was focussed on Mr Lukic’s credit and there was not much in the way of cross-examination in respect of his post-accident abilities.

7. Mr Lukic was asked questions that he did not quite understand and at times, gave answers that were conflicting. However, the Commission would not be satisfied that his credit had been impugned. The history is otherwise completely consistent. Going to see doctors but continuing to work. Having the motor accident and then not going back to work.

8. The material uploaded on social media in respect of the charity event show the face of a younger man.

9. The fact that Mr Lukic was wearing a waist coat did not mean that he was working at Skadarlija Bar and Grill Café.

10. Mr Lukic did have problems with his back prior to the motor accident and he did receive some fairly substantial treatment for that but he did not stop working. There was evidence of degenerative changes to his spine and those changes were impacted by his work from time to time but he did not stop working. However, what stopped him from working were the effects of the motor accident and those effects have stopped him from being able to work in the future.

11. Medical Assessor Wallace assessed Mr Lukic at 10% WPI for his physical injuries. He has sustained a permanent impairment.

12. Mr Lukic made submissions in respect of his claim for past and future economic loss which I will deal with later in this statement of reasons.

Consideration and findings

1. The onus of establishing injury falls on Mr Lukic and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction.

2. The unchallenged medical evidence is that, on 15 July 2009, Mr Lukic complained of feeling depressed and experiencing poor sleep to Dr Todorovic and was prescribed Avanza 30mg tablets. On 11 December 2009, he complained to Dr Todorovic of insomnia and was again prescribed Avanza 30mg tablets. I also note the unchallenged evidence that Mr Lukic separated from his wife in 2009. Thereafter, there were no further entries in the various general practitioner clinical records of psychological or psychiatric symptoms until after the motor accident.

3. The unchallenged medical evidence is that, on 29 January 2010, Mr Lukic complained of right shoulder pain to Dr Todorovic and shortly thereafter, underwent a right shoulder ultrasound that demonstrated a small area of tendinosis within the right supraspinatus tendon. There was another reference in Dr Todorovic’s clinical records to a right shoulder ultrasound on 12 August 2016 without any other details. Thereafter, there were no further entries in the various general practitioner clinical records of right shoulder symptoms.

4. The unchallenged medical evidence is that, on 13 November 2017, Mr Lukic consulted a general practitioner at Allcare Medical Centre complaining of an exacerbation of chronic back pain. He was prescribed Tramadol 100mg tablets. He underwent a CT scan of his lumbar spine on 17 November 2017, which concluded that there were degenerative disc space changes; a marked central spinal canal stenosis at L4/5; lateral recess narrowing on both sides at that level; a focal right posterolateral disc protrusion at L4/5 extending inferiorly to the subarticular recess compressing the right L5 nerve root. Mr Lukic was referred to Dr Darwish but there is no evidence that he consulted the doctor.

5. The unchallenged medical evidence is that, on 4 June 2018, Mr Lukic consulted a general practitioner at Allcare Medical Centre complaining of back pain with radiculopathy. He was again referred to Dr Darwish but there is no evidence that he consulted the doctor. On 31 August 2018, he again consulted a general practitioner in the same medical practice complaining of chronic right back pain with radiculopathy and was referred to Dr Bazina. However, there is no evidence that he consulted Dr Bazina.

6. The unchallenged medical evidence is that, on 5 September 2018, Mr Lukic consulted Dr Abraszko complaining of back pain radiating to his right leg over the past year. He was referred for an MRI scan of his lumbar spine. The MRI scan revealed degenerative changes in the lower lumbar spine, predominantly at the L4/5 level with impingement of the descending L5 nerve roots bilaterally within the lateral recess, greater on the right than the left. There was also disc contact of the exiting right L3 and L4 nerve roots. Mr Lukic underwent a CT guided lumbar epidural injection in the right L4/5 on 14 November 2018 on the referral of Dr Abraszko. Mr Lukic’s evidence was that the injection provided him with relief.

7. The next reference to back symptoms in the various general practitioner clinical records was made on 6 August 2019 by Dr Lodhi when Mr Lukic reported noticing pain on both sides of his back the previous day and being concerned that he may have kidney stones. On examination of Mr Lukic’s back, Dr Lodhi observed a full range of motion and no neurological symptoms. He was referred for a CT KUB scan that showed a 9mm calculus in the neck of the gallbladder. I am not satisfied, as was submitted by the insurer, that Mr Lukic’s complaints of pain on both sides of his back on this occasion were related to the 2017/2018 chronic pain with right sided radiculopathy as there were no neurological symptoms and there was a full range of motion.

8. The next pre-accident reference to back symptoms appeared in Dr Sofic’s referral letter to St George Hospital dated 7 October 2020 wherein she recorded, as Mr Lukic’s past history, back and leg pain on 14 August 2020 and the prescription of medication. Such an entry could not be located in the various general practitioner clinical records in evidence before me. However, in his evidentiary statement, Mr Lukic stated that he consulted a general practitioner in relation to some back and leg pain on 14 August 2020 but did not take any time off work.

9. I accept Mr Lukic’s unchallenged evidence that, whilst he did experience lower back and right leg symptoms prior to the motor accident and underwent treatment for the same, those symptoms did not prevent him performing his work as a gyprocker and carpenter. As demonstrated above, there was evidence of degenerative changes to his spine and those changes were impacted by his work from time to time but did not prevent him from carrying out his work duties.

10. I am satisfied that, at the time of the motor accident, Mr Lukic had little or no symptoms in his lower back or right leg.

11. I accept Mr Lukic’s unchallenged description of the motor accident, namely, that he was stationary at traffic lights, heard a screeching sound and started to turn around to see what it was, when another vehicle rear-ended him at speed, violently forcing his vehicle forward.

12. The unchallenged evidence is that Mr Lukic consulted Dr Sofic shortly after the motor accident on 7 October 2020 complaining of neck pain, headache and dizziness. On the same afternoon, he presented to St George Hospital complaining of neck pain with cervical spine tenderness, dizziness, headache, mild chest and sternum pain and left elbow tenderness. On 12 October 2020, he consulted Dr Kuzmanovski complaining of the onset of low back pain with right-sided radiculopathy when he woke up on 9 October 2020. On 23 November 2020, he consulted Dr Tomic about the onset of psychological symptoms. Later, he was referred to Dr Kuljic.

13. The unchallenged evidence is that Mr Lukic first consulted his usual general practitioner, Dr Kuzmanovski, in respect of the motor accident related symptoms on 8 October 2020 and remained under his care thereafter. He was initially referred to Professor Vucic for an opinion and management and later came under the care of Dr Khong.

14. My observations of Mr Lukic were that he had a poor command of the English language and was a poor historian. Despite having an interpreter available at the assessment conference, it was clear that Mr Lukic was asked questions that he did not fully understand. At times, he gave answers that were conflicting or did not make sense. This, of itself, did not impugn his credit.

15. I accept that Mr Lukic did his best to provide a history of his injuries, treatment, complaints of symptoms and descriptions of ongoing disabilities to his treating doctors, to the forensic medical specialists and to the Commission. The histories he provided of injury, treatment, complaints of symptoms and descriptions of ongoing disabilities were, in the main, consistent over the years since the motor accident. However, I find that he was prone to exaggerating his symptoms, particularly, after his back surgery on 21 December 2022 and I have exercised some caution in this regard.

16. I reject the insurer’s submission that the desktop and surveillance reports indicated that Mr Lukic is the owner or has a significant financial interest in Skadarlija Bar and Grill Café and that he is active in the business. Mr Lukic’s evidence that he had never been the owner, part-owner or an employee of the café is corroborated by Mr Tesic’s unchallenged evidence.

17. I reject the insurer’s submission that Mr Lukic wore a uniform that other employees of the café were wearing. In the video surveillance footage dated 25 November 2023, he was wearing a black shirt and lilac trousers. In the video surveillance footage dated 8 December 2023 at the Christmas party, he was wearing a white shirt and white trousers. In the video surveillance footage dated 15 December 2023 at the Christmas party, he was wearing a red shirt, white trousers and a black vest. At the café opening when he jokingly posed as “the new barman”, he was wearing the same clothing as at the Christmas party on 15 December 2023. I accept that the clothing referred to above were from his own wardrobe.

18. I accept that Mr Lukic thought he was assisting his friend, Mr Tesic, by registering the name “Skadarlija 632” under his ABN on 10 May 2023. As it turned out, he did not need to do so because Mr Tesic had registered the café under his ABN on 28 February 2023.

19. I accept Mr Lukic’s explanation as to why his name was on the lease of the café premises. I accept that he did not understand the legal consequences of having his name on the lease. He did not obtain legal advice. Instead, he and Mr Tesic spoke to “some Croatian guy who is a notary and speaks the same language”.

20. The fact that Mr Lukic promoted the café on social media is hardly surprising for, at least, two reasons. Firstly, Mr and Mrs Tesic were good friends and he wanted the café to succeed. Secondly, he had loaned Mr Tesic about $20,000 in respect of the café business.

21. I am satisfied that Mr Lukic did provide some assistance to his friends, Mr Tesic and his wife, from time to time at Skadarlija Bar and Grill Café as demonstrated in the surveillance video footage on 25 November 2023, 21 June 2024 and 22 June 2024. I am also satisfied that he provided the assistance demonstrated on the video surveillance footage at the Christmas parties at the café on 8 December 2023 and 15 December 2023. I accept Mr Lukic’s evidence that he was endeavouring to socialise as encouraged by Dr Kuljic. Dr Kuljic corroborated this evidence.

22. I have already rejected the insurer’s submission that Mr Lukic was playing soccer at Dapto at a church charity day on 20 November 2022 and provided reasons in this regard at [91], [92] and [121] above.

23. I prefer the evidence of Mr Lukic’s treating neurosurgeon, Dr Khong, over that of Dr Rimmer. Dr Khong had been managing and treating Mr Lukic’s symptoms since 27 January 2022. Whereas, Dr Rimmer had only examined Mr Lukic on two occasions, namely, on 5 April 2022 and 6 July 2023. Dr Rimmer reported that those two consultations were of 30 minutes each. On 6 July 2023, he did not have the benefit of considering investigations that had been conducted since those referred to in his supplementary report dated 21 June 2022, namely, the lumbar MRI scans dated 9 January 2023 and 12 September 2023. Dr Khong, as the treating neurosurgeon, was in a better position to provide an informed and considered opinion on Mr Lukic’s condition. He had the advantage of knowing the outcome of both the CT guided right L5 perineural steroid injection on 20 April 2022 and the CT guided right S1 nerve root injection on 26 April 2022 and the more recent MRI scans referred to above. Contrary to Dr Rimmer’s opinion, Dr Khong was able to identify the pathology that led him to the opinion that the right L4/5 decompression and rhizolysis of the right L5 nerve root performed on 21 December 2022 was reasonable and necessary and I so find.

24. The opinion of Dr Rosenberg was supportive of pathology that may lead to surgical intervention. On 22 December 2021, Dr Rosenberg opined that the 2021 lumbar MRI scan, when compared to the 2020 MRI scan, demonstrated that the L4/5 disc protrusion had increased in size, more to the right side with stenosis. Such finding was consistent with Mr Lukic’s complaints of worsening low lumbar pain and right-sided radiculopathy. I reject the insurer’s submission that the increased size of the disc protrusion suggested a progression of the pathology unrelated to the motor accident. The insurer did not have the medical evidence to support such a proposition.

25. Medical Assessor Wallace’s diagnosis of Mr Lukic’s neck and back symptoms supported the diagnosis of Dr Khong. I reject the insurer’s criticism of Medical Assessor Wallace’s certificate as being quite cursory, particularly, in respect of his failure to address the contents of the surveillance material. Medical Assessor Wallace acknowledged that he had considered the documents provided in the application and the additional documents being submissions from the insurer’s lawyers and the surveillance report of M & A Investigations and other statements. He made it clear that he had considered all the documents and then proceeded to cover the matters he is required to cover in the Motor Accident Guidelines version 9.2. Medical Assessors, in expressing an opinion, rely on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length. They are not required to address every document put before them.

26. I prefer the evidence of Mr Lukic’s treating consultant psychiatrist, Dr Kuljic, over that of Associate Professor Kaplan. Dr Kuljic had been managing and treating Mr Lukic’s psychiatric/psychological symptoms since 6 June 2021. Associate Professor Kaplan examined Mr Lukic on only one occasion, namely, 27 June 2023. Dr Kuljic, as the treating psychiatrist, was in a better position to provide an informed and considered opinion on Mr Lukic’s psychiatric condition following the numerous consultations set out in his reports and clinical notes. Unlike Associate Professor Kaplan, Dr Kuljic had the opportunity to review and comment on the surveillance material provided to him and offer alternate outcomes on the assessment of WPI (20% WPI and 7% WPI).

27. I also prefer the evidence of Dr Kuljic and his diagnosis of post-traumatic stress disorder over the diagnosis of Dr Friend (major depressive disorder with melancholic features) and the diagnosis of Dr Tomic (adjustment disorder with mixed anxiety and depressed mood) on the basis of the considered explanation in Dr Kuljic’s detailed report dated 25 February 2023.[178]

    [178] Claimant’s documents at pages 152-153.

28. Dr Kuljic’s diagnosis is supported, in part, by Medical Assessor Jones who opined that Mr Lukic satisfied the criteria under DSM-5 for a post-traumatic stress disorder and major depressive disorder. He noted that there is a considerable overlap with these disorders. He had the benefit of considering the surveillance material. Medical Assessor Jones assessed Mr Lukic’s WPI at 8%, which was consistent with Dr Kuljic’s alternate WPI assessment of 7%.

29. I am satisfied on the balance of probabilities that Mr Lukic suffered the physical and psychological/psychiatric injuries listed below for the following reasons:

    (a)    the acute onset of symptoms within a week of the motor accident;

    (b)    the absence of previous symptoms immediately prior to the motor accident and in the case of the lumbar spine and right leg, the absence of any significant symptoms immediately prior to the motor accident;

    (c)    the mechanism of the injury as described by Mr Lukic was consistent with the known pathology;

    (d)    an unbroken chain of causation with continuous symptoms, and

    (e)    an absence of lifestyle factors or other causative factors.

30. I find that Mr Lukic suffered the following injuries in the motor accident for the reasons stated above:

    (a)    a musculo-ligamentous strain to the cervical spine;

    (b)    an aggravation, acceleration or exacerbation of a pre-existing asymptomatic multilevel cervical spondylosis with referred symptoms into the right shoulder and right arm;

    (c)    a musculo-ligamentous strain to the lumbar spine;

    (d)    a significant aggravation, acceleration or exacerbation of a pre-existing disc protrusion at the L4/5 level with right L5 radiculopathy resulting in a right L4/5 decompression and rhizolysis of the right L5 nerve root on 21 December 2022, and

    (e)    a post-traumatic stress disorder and major depressive disorder.

31. I find that none of the injuries referred to above have fully resolved.

32. I find that Mr Lukic suffers the following ongoing pain, symptoms, difficulties, disabilities and restrictions as a result of the injuries he sustained in the motor accident:

    (a)    pain, discomfort, stiffness and restriction in the region of the cervical spine with referred pain into the right shoulder and right arm and intermittent paraesthesia in the right arm radiating to the ulnar two fingers of the right hand;

    (b)    constant aching pain at the L4/5 of the lumbar spine radiating to the right buttock and the lateral aspect of the right leg to the foot and paraesthesia at the lateral aspect of the right leg to the foot and numbness at the right heel;

    (c)    headaches;

    (d)    stiffness and restriction in the region of the lumbar spine;

    (e)    difficulty bending;

    (f)    difficulty lifting and carrying heavy objects;

    (g)    difficulty standing, sitting or walking for prolonged periods;

    (h)    difficulty driving for prolonged periods;

    (i)    difficulties carrying out the activities of daily living;

    (j)    difficulty sleeping/insomnia;

    (k)    depressed mood;

    (l)    loss of motivation;

    (m)     forgetfulness;

    (n)    a sense of hopelessness;

    (o)    a sense of worthlessness;

    (p)    nightmares and flashbacks of the motor accident;

    (q)    irritable, snappy and argumentative;

    (r)    social withdrawal, which has gradually improved, and

    (s)    loss of focus/concentration.

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

The legislation and legal principles

1. In cases such as Medlin v State Government Insurance Commission[179] and Husher v Husher,[180] the High Court of Australia confirmed that the fundamental questions to be determined in a case such as this are whether Mr Lukic has sustained a loss or diminution in his earning capacity and if so, whether that loss or diminution will result in economic loss.

   [179] Medlin v State Government Insurance Commission [1995] HCA 5.

   [180] Husher v Husher [1999] HCA 47.

2. 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.

3. In calculating any economic loss into the future, I must have regard to the provisions of s 4.7 of the MAI Act.

4. 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.

5. 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.

6. 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.

7. Section 4.9(1) of the MAI Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. Section 4.9(2) of the MAI Act prescribes a discount rate of 5%.

8. Section 4.7 of the MAI Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks (Parks)[181] is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine. A buffer for future economic loss in the circumstances of this case is not appropriate.

   [181] Penrith City Council v Parks [2004] NSWCA 201.

9. There are three questions to be answered in assessing income loss:

   (a)    what was Mr Lukic’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

The insurer’s submissions

1. In light of the considerable inconsistencies and credibility issues, the Commission cannot be confident that Mr Lukic’s report of an inability to work to the present date is accurate.

2. Mr Lukic has been engaged in employment or employment related activities since May 2023, when his ABN was registered to Skadarlija 632.

3. The insurer relied on Dr Rimmer who did not place any restrictions on Mr Lukic’s past fitness for employment.

4. The insurer also relied on Dr Baron Levi who opined that there was no impediment to Mr Lukic working on the open labour market.

5. Mr Lukic’s pre-accident history of lumbar symptoms and unelated left shoulder symptoms should be considered when assessing economic loss.

6. Giving Mr Lukic the benefit of the doubt, the Commission should award Mr Lukic no more than three months loss of earnings from 8 December 2020 at $850 net per week
   (pre-accident weekly earnings), plus a further three months loss of earnings at 50% of his pre-accident earnings ($425 net per week) to allow a gradual return to work (totalling $16,575) and nothing thereafter. There should be no allowance for superannuation as Mr Lukic was self-employed.

7. There ought to be no allowance for future economic loss based on the opinions of Dr Rimmer and Dr Baron Levi.

8. Mr Lukic’s claim for past economic loss as set out in his schedule of damages is flawed. No expenses were deducted.

9. The insurer calculates Mr Lukic’s pre-accident earnings at $850 net per week.

10. Further, the figure for past economic loss should not be adjusted by using the Consumer Price Index (CPI) but should be adjusted using the Wage Price Index.

11. Unless it were corroborated in evidence, the Commission would not accept the claim that Mr Lukic would have continued working to age 70.

Mr Lukic’s submissions

1. In his written submissions Mr Lukic claimed past economic loss of $419,399.26; future economic loss of $572,039.82; and loss of superannuation entitlements of $137,170.10.

2. In respect of Mr Lukic’s surveillance video activities at Skadarlija Bar and Grill Café, the point to be made is that he is not in a wheel chair. However, as a result of the injuries sustained in the motor accident, he is no longer capable of doing the heavy work of a gyprocker.

3. Senior counsel for Mr Lukic accepted the insurer’s submission that pre-accident earnings were at around $850 net per week and he is entitled to that to the age of 70 years or at whatever age the Commission decides.

4. Mr Lukic has a bad back and does not speak much English. He is not a businessman nor is he financially literate. He is not going to be able to obtain the jobs referred to by Dr Baron Levi.

5. The effects of the motor accident rendered him unable to work thereafter and into the future.

6. Senior counsel for Mr Lukic, without objection from counsel for the insurer, handed up a mathematical calculation of past and future economic loss based on a figure of $850 net per week, which came to $163,200 for the past (192 weeks at $850) and $196,086 for the future (six years at $850 less 15% for vicissitudes).

Consideration and findings

Damages for past loss of earnings or loss of earning capacity

1. By the conclusion of the assessment conference, there was no dispute that, at the time of the motor accident, Mr Lukic’s pre-accident earnings were $850 net per week.

2. I am satisfied that, as a result of the injuries and restrictions I have found were caused by the motor accident, Mr Lukic has sustained a loss or diminution in his earning capacity and that such loss or diminution has resulted in economic loss.

3. Dr Khong opined that, in respect of his physical injuries, Mr Lukic had no capacity to work. Dr Rimmer opined that Mr Lukic had suffered musculoskeletal strains to his cervical spine and lumbar spine that had long resolved. I give Dr Rimmer’s opinion little weight for the reasons I have already stated.

4. Dr Kuljic opined that, in respect of his psychiatric/psychological injuries, Mr Lukic would be able to work less than 20 hours per fortnight (10 hours per week) at a reduced pace and with erratic attendance.

5. Associate Professor Kaplan opined that, as at, 27 July 2023, Mr Lukic could not work in his current capacity. Dr Friend opined that Mr Lukic’s psychiatric symptoms appeared to have a significant adverse impact on his potential ability to work. Medical Assessor Jones opined that, from a purely psychiatric perspective, Mr Lukic would have capacity to undertake his pre-accident work as an unqualified carpenter but at reduced hours and with reduced duties with respect to the cognitive demand and complexity, that is, half his usual hours.

6. Dr Baron Levi opined that, after reviewing the video surveillance material, he was now of the view that Mr Lukic had over reported his level of mood and had attempted to portray himself as more impaired than he was. Accordingly, he concluded that Mr Lukic was clearly capable of working. I prefer Dr Kuljic’s opinion in respect of the surveillance material over that of Dr Baron Levi’s opinion particularly when having regard to the findings I have made in respect of the surveillance material. Further, I find that Dr Baron Levi has not adequately taken into consideration Mr Lukic’s physical injuries and that his conclusions are inconsistent with the findings I have made in respect of the motor accident related injuries and disabilities. Accordingly, I give Dr Baron Levi’s evidence little weight.

7. I find that Mr Lukic’s most likely future circumstances but for the injuries and resultant restrictions caused by the motor accident, would have seen him continue as a gyprocker and carpenter earning, at least, $850 net per week to his statutory retirement age of 67 years which, in his case, is 23 June 2027. Whilst I accept that Mr Lukic may have believed that he would have worked to age 70, I am not satisfied, in the absence of corroborative evidence, that Mr Lukic would have done so.

8. I find that, as a result of his physical and psychiatric/psychological injuries caused by the motor accident, Mr Lukic does not have the capacity to return to his pre-injury heavy work of a gyprocker and carpenter.

9. I find that, despite some improvement in his psychiatric/psychological condition, the combination of that condition, his motor accident related physical injuries and restrictions and his age render Mr Lukic as having no realistic residual earning capacity on the open labour market.

10. Mr Lukic was self-employed in his own company that contracted his physical labour to City Projects. There was no evidence from Mr Lukic that he contributed to a superannuation fund through his company. There was evidence in his company’s tax returns that superannuation expenses were incurred, namely, $4,750 in 2017; $4,560 in 2018; $4,560 in 2019; $0 in 2020; and $0 in 2021. In those circumstances and in the absence of evidence that monies were paid into a superannuation account on behalf of Mr Lukic, I am not prepared to make an allowance for past or future loss of superannuation entitlements. I have some comfort in doing so because senior counsel for Mr Lukic did not include it in his calculation of the claim for economic loss in the schedule he handed up at the conclusion of the assessment conference.

11. I assess Mr Lukic’s entitlement to past loss of earnings from 8 December 2020 (being the expected date of his return to work following gall bladder surgery but for the motor accident) to 11 September 2024 (196 weeks) as follows:

    8 December 2020 to 11 September 2024

    196 weeks at $850 net per week:  $166,600

12. Accordingly, I assess Mr Lukic’s entitlement to past loss of earnings, at $166,600.

Damages for future loss of earnings or loss of earning capacity

1. I have found that the loss of Mr Lukic’s earning capacity as a result of his motor accident related injuries and restrictions is currently $850 net per week. I find that such loss will continue until his retirement at the age of 67, that is, another, say three years.

2. I assess Mr Lukic’s entitlement to future loss of earnings as follows:

   $850 net per week x 145.6 (Multiplier for say three years):         $123,760

   less 15% for vicissitudes:  $18,564

   total future loss of earnings:  $105,196

1. Accordingly, I assess Mr Lukic’s entitlement to future loss, inclusive of superannuation, of earnings at $105,196.

ASSESSMENT OF DAMAGES SUMMARY

1. 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.

2. I assess the claim as follows on the findings set out above:

   Non-economic loss:  $0

   Economic losses

   ·Past loss of earnings:  $166,600

   ·Fox v Wood damages (s 4.5(1)(d) of the MAI Act):  $7,035

   ·Past loss of superannuation:  $0

   ·Future loss of earnings:  $105,196

   ·Future loss of superannuation:  $0

   Total of economic losses and non-economic loss:  $278,831

   Total damages assessed:  $278,831

   Mr Lukic’s economic loss is to be reduced by, and the insurer is to have credit for, the following payments:

   ·Payments made under section 3.40(1)(b) of the MAI Act:           $117,287.50.

COSTS AND DISBURSEMENTS

1. Mr Lukic’s lawyers provided a schedule of claimed disbursements[182] and an updated schedule of claimed disbursements dated 5 July 2024 in their response to the insurer’s submissions. The insurer’s lawyers provided a schedule of costs and disbursements in response dated 5 July 2024.

   [182] Claimant’s documents at pages 643-645.

2. On 9 July 2024, Mr Lukic’s lawyers posted the following message on the Commission’s portal:

   “We refer to the insurer’s schedule of costs and disbursements dated 5 July 2024 and confirm we agree with the insurer’s objections and consents [sic] with respect to the disbursements and fees.”

3. Accordingly, as indicated at the preliminary conference and at the assessment conference, I will not calculate the claimant’s costs and disbursement but rather, I propose to make an order that the insurer is to pay the claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 as agreed or assessed.

CONCLUSION

1. On the issue of liability for the claim, the insurer’s insured owed a duty of care to Mr Lukic, breached that duty of care and Mr Lukic sustained injury, loss and damage as a result of that breach of duty.

2. Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $278,831.

3. The insurer is to pay the claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Motor Accidents Injuries Regulation 2017 as agreed or assessed.

LEGISLATION

1. In making my decision I have considered the following legislation:

   (a)    Personal Injury Commission Act 2020;

   Personal Injury Commission Rules 2021(b) ;

   (c)    the MAI Act, and

   (d)    the Regulation.