Maamary v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 202
•13 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Maamary v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 202 |
| CLAIMANT: | Jessica Maamary |
| INSURER: | IAG Ltd t/as NRMA Insurance |
| MEMBER: | Terence O'Riain |
| DATE OF DECISION: | 13 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages; liability not disputed; physical and psychiatric/psychological injuries; entitled to non-economic loss; claim for past and future economic loss; consideration of medico-legal examinations, vocational assessments and lay evidence; claimant lost partial use of right hand and has continuing lumbar spine pain; returned to part time work; continuing reduction of earning capacity; consideration and application of section 4.7; Held – damages assessed for non-economic loss, past economic loss as weekly loss, and future economic loss calculated on 45% vicissitudes discount; claimant’s legal costs and disbursements assessed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.36(1) of the Motor Accident Injuries Act2017 Assessment of claim for damages 1. The insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage because of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I assess the amount of damages for this claim as $851,975 with the insurer having credit for statutory payments. 3. The insurer is to pay the claimant’s costs and disbursements assessed in the amount of $54,271.80 inclusive of GST, but additional disbursements may be resolved by agreement. Attached to this certificate are reasons for my assessment. |
REASONS
INTRODUCTION
On 13 March 2025, I assessed Jessica Maamary’s (claimant) claim for damages arising from the motor vehicle accident on 13 October 2020 (the accident).
Jurisdiction
The insurer has admitted its insured driver breached the duty of care owed to other road users and accepted liability for damages. The claimant has referred her claim to the Personal Injury Commission (Commission) for assessment of damages under Div 7.6 of the Motor Accident Injuries Act 2017 (MAI Act)
She seeks awards for non-economic loss, past economic loss and future economic loss.
Other than the quantum of the award for non-economic loss, the critical matter in dispute between the parties is the extent of the claimant’s residual earning capacity, there being agreement that she has no or reduced capacity to return to her pre-accident work as a hairdresser.
BACKGROUND
Reviewing the claimant’s statements dated 3 September 2024,19 September 2024, and
5 February 2025 I read that at approximately 5.30pm on 13 October 2020, she was an Australian born hairdresser returning home from work at Chester Hill.At that time, she was 25 years old and passionate about the hairdressing industry. Although she worked hard, she had enjoyed hairdressing since she began her apprenticeship at the age of 15 years. She had been mostly employed full-time since that time.
She says she felt she was on the trajectory to succeed in running her own hairdressing salon. She intended to work until she reached retirement age. Later evidence added that she also had private clients she would visit at their homes in addition to employment during business hours.
At the intersection of Rodd Street and Hector Street, the vehicle at fault collided with her vehicle at high speed. Her vehicle spun out of control and there was a second impact on the passenger’s door side.
She clearly recalls the accident, which still emerge as flashbacks, because she thought she would die. A photo of the claimant’s car, which was written off immediately after the accident shows severe damage.
There was immediate pain to her dominant right hand, shoulder and neck, and she was shocked.
An ambulance conveyed her to Liverpool Hospital for treatment where she underwent a right wrist open reduction internal fixation (ORIF).
The hospital discharged her three days later.
Subsequently, she came under the care of Dr Wong, her long time general practitioner (GP). He passed away in May 2024 and she continues to see a GP. She also sees a neurologist, a psychologist and orthopaedic surgeon.
Her application for personal injury benefits dated 27 October 2020 records she broke her right wrist, three ribs and her left hand pinkie finger. This form also refers to lumbar spine complaints, which the insurer rejected as connected to the accident because both the hospital and ambulance notes did not refer to the lumbar spine.
The claimant’s statement records the following disabilities:
(a) severe right hand pain and restriction of movement;
(b) right shoulder pain and restriction of movement;
(c) lumbar spine pain and restriction;
(d) pain radiating down her right leg (radiculopathy);
(e) cervical spine restriction of movement and stiffness;
(f) post-traumatic stress disorder resulting in depression and anxiety;
(g) phobia as driver/passenger in a motor vehicle, and
(h) insomnia.
The latest statement confirms these disabilities are continuing.
She has not driven a motor vehicle since the accident. She relies on her husband to drive her, because being in the car causes anxiety, paranoia and discomfort.
At the time she made her earliest statement she was taking medication including:
(a) Endone (an opioid);
(b) Panadeine Forte, twice per day, and
(c) anti-inflammatory medication: Voltaren 25mg.
Initially, she took Endone 5mg once per day but by September 2024 she had managed to reduce that medication. Later evidence says that she no longer takes it.
She has attended counselling, albeit briefly.
Despite undergoing rehabilitation and hand physiotherapy to return to hairdressing she now has difficulty using scissors and cannot stand for prolonged periods.
Ms Maamary converted to the Islamic faith upon marrying her husband in March 2022. They one infant daughter.
Ms Maamary attended the assessment wearing a burka so that only her eyes were visible. Counsel for both parties assured me that the claimant was before me, and I also saw her driver’s licence with her face uncovered.
The insurer provided rehabilitation support in returning to work.
In August 2024 she approached the manager of a busy butcher shop near her home seeking work. The manager gave her work with training. There are approximately 10 people working there. The shop opens seven days a week, selling fresh meat, frozen food and spices.
Her duties include:
(a) working in the office, taking phone calls from customers;
(b) placing orders with meat wholesalers;
(c) general office administrative duties, and
(d) accounting / paperwork / computer work / writing.
She works three hours per day, four days a week and earns $300 net per week, however her payslips do not deduct tax. Sometimes she can work from home. Recent medical certificates maintain she is only fit for part-time work.
The duties do not include sales or cleaning. She can cope with this work because her boss lets her rest whenever she wants.
Her mother-in-law provides childcare when she is at work. She feels better for being able to earn an income and being occupied. She misses hairdressing. There is other vocational evidence that confirms this loss pre-occupies her.
Her right hand remains restricted. She experiences cramps sometimes twice a day, which happens when she is doing housework. She loses her grip and drops things.
The claimant receives statutory benefits under the MAI Act. The insurer assessed the claimant's pre-accident weekly earnings (PAWE) as $583.33 gross per week.
Her income after the accident has been from the part-time work, statutory benefits at an average of $478 net per week and parental payment allowance with family tax benefits.
When she is in public, she can become anxious around crowds. She avoids those environments. She recalled that she returned home from a beach holiday after the first day because she could not handle her anxiety.
The insurer’s vocational assessor has suggested a range of jobs, but she alleges she cannot consistently work full-time and cannot return to hairdressing.
Claimant’s oral evidence
The claimant lives in Guildford with her husband and infant daughter. She continues to receive statutory benefits at approximately $950 per fortnight. These benefits are disclosed to Centrelink.
Despite her right hand operations which were meant to relieve pain and increase function, the pain is worse. She experiences this as loss of feeling in two fingers with shooting pains. She cannot lift more than 2kg with her right hand. She also has neck and back pain.
She is able to maintain her current work, but she had to apply for many jobs before she was successful.
Although the Vocational Capacity Centre’s (VCC) report dated 14 May 2024 suggested several jobs in the clerical field she could do full-time, she does not believe she could work 40 hours a week as she could before the accident.
Her evidence was it would not be feasible to operate her own hairdressing business because she could not contribute to any hairdressing tasks including washing, braiding and styling hair. She continues to see her GP once a month.
The insurer’s counsel questioned the claimant about the work she was doing at the time of the accident. It was put to her that her employment, which began a few months before the accident, was only probationary and she was not guaranteed to remain in that role. The claimant disagreed. Her evidence was that it was a part-time position that sometimes expanded because she was called in when that hairdresser was busy. Her pay varied between $360 – $500 net per week.
She disagreed that COVID-19 had reduced her work. She was on Job Keeper, which was the special benefit paid during the pandemic. It was noted that hairdressing was one of the occupations that allowances were made for continuing operations during the pandemic.
After she was injured and underwent rehabilitation, she applied frequently for jobs as a receptionist in places like medical centres. When she informed potential employers about her disabilities that had to be accommodated her applications were rejected or there were no responses.
The insurer asked her about the VCC report dated 14 May 2024, which was created by physiotherapist Gillian Stewart and vocational psychologist Dr Henricks.
That report recorded what was involved in a typical day for the claimant. This included caring for her infant. Counsel put to the claimant that as looking after a child could be difficult, which she could still manage with her injuries and disabilities, she should be able to manage suitable work duties full-time. The claimant disagreed and said she still needed help with her child.
Counsel also asked why the claimant would not have a nerve block in her right hand, which her pain specialist Dr Manohar suggested, if it would help her return to full-time work. The claimant said she had been told the treatment was not guaranteed to work, and it would not make it possible for her to return to full-time duties.
She was also asked how using a computer affected her when she had to write rosters. She says she frequently needs breaks for her hand and back.
The insurer’s counsel later suggested that the claimant does not want to work full-time, because it suits her to be available to care for her child, and that it is not the injuries preventing her from doing full-time suitable work, such as a receptionist or administration. He also suggested the claimant could be using her hairdressing experience to sell or demonstrate hair and beauty products.
Mr Wilson also suggested that the VCC report is optimistic that the claimant could find suitable full-time work, which would pay as well as or better than hairdressing. The claimant said she was aware of the jobs VCC suggested, but she does not feel she can do those jobs full-time.
It was also put to her that VCC’s report suggested that the claimant she was over-sharing when she told prospective employers about her injuries, when they had no relevance to the job she was applying for.
The following was stated in the VCC report,
“At a minimum, she would benefit from expert advice from an employment lawyer about her disclosure obligations, together with coaching from the careers advisor about improved responses to common interview questions.”
The insurer’s counsel suggested that the claimant could rely on Australia’s antidiscrimination laws to ensure she would not be discriminated against if she did not disclose her injuries to prospective employers and they found out.
Despite this suggestion it was confirmed that the insurer was not suggesting it would fund the expense of legal and further career advice.
The claimant said that the insurer’s rehabilitation contact had helped her draft a curriculum vitae including references to her disabilities.
I questioned the claimant about her hairdressing qualification. She was aware that it was a qualification that she could have exercised anywhere in Australia or overseas.
Apart from getting married and having a family she thought her trajectory in life was to open her own business and continue hairdressing. She understood there were risks in running a business and they are not always successful.
Her counsel asked questions about how she managed domestic duties, and she said that she relies on her husband, and her mother or mother-in-law to do heavier jobs. She recalled that when she attempted to wash a pot, she dropped it and broke a plate that cut her. Another time she was cooking and burned her finger because she had lacked the sense of touch in the right ring and little finger, which was injured in the accident.
When she shops, she needs her husband to help her because she cannot carry the shopping and it hurts her back.
Other lay evidence
Siham Elkaddour’s statement dated 22 September 2024
Ms Elkaddour is the claimant’s younger friend who worked under her in the hairdressing industry.
They met in 2019 at Hairhouse Warehouse and became close friends. Ms Elkaddour was one of the first people to visit her in hospital after the accident.
It was through her that the claimant met her now husband in 2021.
The witness says she saw that the claimant was good at her work and popular with customers. The claimant taught this witness a lot about the industry. She was outgoing, skilful and friendly.
Before the accident this witness observed the claimant was bubbly, outgoing, wanting to be around people, and happy. The claimant and this witness enjoyed going out together including outdoor activities. Since the accident, the claimant avoids people, keeps to herself, and does not answer phone calls.
Ms Elkaddour remembers the claimant telling her it was her dream to operate her own hair salon.
They still meet fortnightly and speak on the phone. The claimant’s right hand injuries will keep her away from hairdressing, because she cannot operate the scissors.
Medical and vocational assessment evidence
There was no relevant pre-accident medical history.
The ambulance report dated 13 October 2020 noted pain and numbness with obvious dinner fork deformity to right distal ulna, and radius and hip pain.
The Liverpool Hospital clinical notes refer to the right distal radius/ulnar fracture, cervical and thoracic spine tenderness. While at the hospital orthopaedic surgeon Dr Laird inserted titanium in the right wrist to fix it in place.
The post operative notes refer to the claimant having post operative vomiting. She had severe pain which did not respond to the pain protocol, which required an anaesthetist to review.
The general practitioner notes record that the claimant attended that doctor for at least nine years before the accident. The last attendance before the accident was in 2016.
The handwritten notes are hard to read, but I can discern she saw her GP on 20 October 2020 and he recorded the circumstances of the accident which focused on the right upper extremity and rib cage. Relevantly, the claimant was taking opioid based Endone and Panadeine, which was making her constipated. The claimant was experiencing a lot of pain in the right upper extremity and ribs.
Four weeks later on 14 November 2020 a discharge summary from Bankstown Lidcombe Hospital shows the claimant presented with severe lower back pain.
There is a clinical note from her GP noted on 17 November 2020 that she had developed severe lower back pain projecting into her right leg. She was tender at L4 to S1.
Orthopaedic surgeon Dr Laird’s clinical notes record on 30 October 2020 numbness over medial border of little finger and she was at risk of developing complex regional pain syndrome.
In February 2021 he noted pain in the ulna side of the wrist and lacking 30° of supination. She is able to abduct both the index and little finger weakly.
In May 2021 her ulna motor palsy essentially resolved but with weakness in the fifth finger. She was taking Endone.
Neurologist Dr Hassan’s report dated 30 May 2021 noted right hand impairment consistent with moderately severe right ulna mononeuropathy with moderate severity, non-localised motor and sensory axonal dysfunction.
The claimant sought psychological counselling from Robert Thomas Southwestern Clinical Psychology beginning 26 March 2021. After recording the accident's circumstances, he noted she was taking Panadeine forte, and Valium to help her sleep. He noted she experienced flashbacks and had high anxiety when she was a passenger in a car. She feels that when she goes past the accident site, but she was not avoiding that spot. She has nightmares about the accident.
The claimant's sleep and concentration were poor and she was hypervigilant.
Her mood range varied from 1/10 when she was by herself, but improving to 6/10 around friends. She lost weight due to poor appetite after the accident.
He noted she loved hairdressing and felt terrible her hand had not recovered. She was worried and questioning why this could happen to her. She felt bereft because her father was not alive to help her. The circumstances of the accident were compounded due to his sudden death during her teens. She was judging herself harshly.
The psychologist saw her a month later. She was having occasional contact with friends but spending most of the day in bed.
The third session was soon after and her mood had lifted.
Another session in May 2021 referred to a bad mood day, but her sleep was improving and she had no nightmares. Her mood could be affected when she thought about her right hand.
In June 2021 orthopaedic surgeon Dr Kadir could not explain global weakness from the isolated ulna nerve injury but noted possible cervical spine distraction injury to the cervical spine nerve root or plexus. Visits up to June 2022 after Ms Maamary had surgery to remove the ulna hardware showed she still had pain and hypersensitivity.
Dr Patrick, general vascular trauma surgeon’s report (dated 28 June 2022) the claimant had recorded pain in the right wrist and forearm, diminished sensation of little finger and adjacent ring finger, shooting pain on the ulna side of the wrist, significant stiffness at right wrist and persisting right sided rib pain.
There was significant restriction in range of active movement (ROM) of cervical spine with some dysmetria with flexion forward. She had lumbar spine dysmetria. The thoracic spine had settled somewhat. Dr Patrick assigned DRE category II for both cervical spine and lumbosacral spine.
Rehab Management CTP’s vocational assessment report dated 30 May 2022 assessed suitable employment options based on the claimant's age, education, experience transferable skills and labour market assessment.
The claimant was then fit to work 12 hours per week at receptionist or customer service representative roles. She had to avoid lifting more than 2kg, with limited sitting and standing tolerance and pushing, pulling or bending, twisting and squatting.
Rehab Management referred to job placement programs that could assist the claimant returning to work, which included incentive payments to prospective employers, however this did not lead to job trials.
Ms Maamary attempted to return to work for one day in March 2022 in a salon, but she was not able to perform any of the duties during that day because of her right hand.
The claimant reported to Rehab Management that since the accident she was struggling mentally with low moods, anxiety, memory and decision-making difficulties, limited attention span and reduced coping strategies. She had eating difficulties and lost 8kg after the accident.
She had intermediate computer skills.
Being a hairdresser she was competent at communications demonstrating rapport with customers and co-workers. Her employment before the accident gave her opportunities to be creative, identify problems, allocate resources, solve problems and set goals. She had positive employment friendly skills but lacked knowledge and confidence in job seeking.
The alternative roles Rehabilitation Management proposed paid, in some cases, double the hourly rate she was being paid as a hairdresser.
The report identified vocational barriers as follows:
(a) her capacity is less than pre – accident hours, which impacts competitiveness and success with obtaining new employment;
(b) testing indicated a low readiness to accept change so engagement, motivation and confidence in job seeking sessions may be low;
(c) the claimant had numerous psychosocial barriers including reported isolation and fear of engagement in the community and has not engaged in psychological treatment her GP recommended, and
(d) her GP indicated the insurer was delaying approval of the vocational options and functional upgrades, which resulted in delaying return to work plans.
Rehabilitation Management proposed assisting the claimant with empowerment programs. This assistance was not provided, although these reports read as if the authors were trying to engage with the claimant.
Clinical notes from the Hand Injury Trauma Service (HITS) physiotherapy practice record the treatment from August 2022 to rehabilitate the claimant's right hand.
At this point the claimant had undergone two surgical interventions to the right upper extremity. The last surgery was in March 2021 and the claimant had not experienced improvement. The physiotherapist originally treating her had noted the claimant had lost strength in the right hand, so she was advised by her surgeon Dr Kadir to seek hand therapy.
The claimant reported burning sensation in the dorsal underhand in the ulnar digits plus paraesthesia in the ulnar palm. Sometimes there is occasional sharp pain, not related to any activities. Grip strength was measured at 0.5 kg on the right-hand and 25 kg on the left. The claimant was provided with home exercises.
At the second consultation the therapist recorded that the right-hand is painful most of the time and intermittently rose to 7/10. There were also reports of pins and needles and signs of chronic regional pain syndrome. Part of the treatment provided was scar massage.
Since the second surgery the claimant reported a burning sensation and muscle soreness in the forearm, which is triggered by activity. The claimant complained that she had shoulder pain since the second surgery and occasionally felt shooting pains in the entire arm and shoulder. The claimant was tested for overall sensation distribution. The claimant was adopting protective postures during the treatment. She was even having pain in the right elbow and was tender to touch. The claimant was given exercises and advice to massage the affected part of the upper extremity.
The claimant had further treatment over several sessions. On 19 September 2022 the therapist recorded that her right arm was still sore and tired and felt week including the shoulder. The claimant was unable to extend elbow and wrist more than 90° due to pain.
On 26 September 2022 the therapist recorded that the claimant's fingers and wrist were not painful but that she had constant shoulder pain.
The claimant told the therapist she cannot wash dishes or move the wrist too much because she is afraid of dropping things. There was a burn mark on the ulna side of her wrist which happened because the claimant was unable to sense heat while she was preparing a meal. The grip strength the right side tested up to 8 kg, while the left hand grip was 27 kg. The claimant said that she cannot manage playing tennis since the accident. The therapist told the claimant that as part of her home treatment she should attempt to use scissors to cut hair.
The claimant attended for more treatments in October, November and December 2022. The therapist recorded on 11 October 2022 that the claimant still had pain on the ulnar aspects and dorsal aspects of her right hand is high as 7/10. Pain could spread up to the right shoulder with 8/10 intensity. The claimant had no return to work plans because her back pain from the accident was impeding that goal. She had not received any pain management treatment.
The therapist prescribed heat and elevating the affected limb, referral to pain management, actively moving the wrist range of motion, and gentle desensitisation of the scar.
On 2 November 2022 the therapist carried out a test to map sensitivity distribution and a DASH test to measure the impact on activities of daily living.
The DASH test showed the claimant scored 39.17, while the general population score is 8.36. I noted the highest scores applied to carrying objects over 5 kg, household and garden chores, managing transportation, opening jars, while there were lower-level impacts on sexual activities, sleep, self-assessment of her capabilities, and recreational activities.
Dermal testing to map sensation showed diminished protective sensation past the middle finger of the right hand through to the dorsal aspect and the little finger. The distribution shown on a pictographic in these clinical notes was mixed, but the claimant had no sensation in the top of her little finger on the upper side and the entire bottom side of her little finger and exactly half of the underside of her ring finger.
Consulting psychologist Mark Ravagnani's report dated 18 September 2022 concluded the claimant had positive future employment potential, because of her training, age, prior experience, consistent work history and transferable skills.
Against that potential was the specificity of her work experience and education requiring additional elementary and intermediate training to prepare her to return to work. At the time of this interview, she had been unemployed for two years, which made her a long-term unemployed person, who would experience skills depreciation, reduced social networks, with poorer health and life satisfaction outcomes. The COVID-19 pandemic had exacerbated those issues.
The claimant has medical support for requiring arrangements to accommodate her disability, but Dr Ravagnani referred to data to support an opinion there is prejudice in the labour market against jobhunters with disabilities with the unemployment rate being more than twice the rate for nondisabled people.
Mark Ravagnani's later report dated 12 November 2024 was written after the claimant commenced employment as administrative assistant to her current employer in South Granville.
From around October 2023 the claimant sought general clerical, receptionist and retail roles, which did not proceed when employers learnt about her restrictions.
He recorded the continuing disabilities as:
(a) pain and spasms in her right hand and arm;
(b) lower back pain;
(c) sensitivity and itchiness in the scar on her right hand, which decreased over time;
(d) reduced strength and sensation in her right hand, fingers and arm;
(e) right shoulder pain with activity;
(f) all the previous movement noted as restricted such as standing, sitting, lifting and carrying continued. She prefers to kneel as forward flexion becomes painful;
(g) sleep was still disturbed;
(h) she has not driven since her accident due to nightmares and anxiety following her accident which is why she attended a psychologist briefly. Her emotional symptoms have reduced over time but continue. She has attempted to drive but becomes ’really scared’, however she persists as she may need to drive in an emergency. She experiences ‘paranoia and anxiety that something is going to happen’ and remains hypervigilant, especially at stop signs and roundabouts. She hopes to ‘get over it in time’, and
(i) she avoids leaving the house unless it is with her husband and does not want to talk to anyone when she is out. Before the accident, she always wanted to be out with her friends. Her mood is ‘up and down’ and she “ruminates” about her life since the accident.
She enjoyed bowling and tennis before the accident but no longer. She mostly spends her time in the garden or with her mother-in-law.
She maintains that hairdressing was the only career she felt "good at".
Ms Maamary is currently fit to undertake suitable duties for three hours per day, four days per week. She has potential for clerical and sales roles.
Against that is,
“the reality of securing work following an injury and a protracted period of unemployment, the inability to return to the types of employment for which she is best qualified and experienced and the impact of her permanent functional restrictions on alternative types of work.”
The suggested roles can vary in specific duties, environment, workplace culture, co-worker and employer support and accommodation if required.
Ms Maamary’s butcher shop position suits her level of capacity. She can work within her capacity and rest when needed. She may increase her hours. Other roles may not be as accommodating.
The claimant’s emotional problems including low mood, anxiety and social withdrawal may also act as barriers to alternative employment and her self-reported fear of driving is likely to impact any work role where she is required to independently travel to attend clients. Psychological support would assist her to adjust to the changes.
The insurer arranged for occupational physician Dr Andrew Keller to examine the claimant. He wrote a report dated 1 March 2023.
He noted she reported constant low back pain between 8.5 to 10 in intensity. This was interfering with her sleep. His examination found she had a normal range of motion in the lumbar and cervical spine. There was minimal restriction in mild scarring in the right wrist with "reported" altered sensation in the right ring and little fingers.
Dr Keller rejected the claimant's need for assistance due to her lower back pain. He opined she was fit for full-time administrative or light duties if she avoids lifting more than 2kg or rapid or heavy gripping on the right-hand.
He lacked clarity about the claimant's lumbar spine injury and a nexus with the accident. This seems to be linked to the delay in the claimant's treating doctors noting lower back pain complaints.
VCC’s report dated 28 May 2024 carried out physical and psychological testing. VCC opines that contact centre operator, information office and receptionist were appropriate roles. The report referred to job data that showed these jobs were in demand.
It also reported it could be fruitful to seek work in a familiar industry where she can demonstrate prior skills and experience. The roles of sales demonstrator, sales representative, sales assistant in hair and beauty products were considered appropriate.
Assessment of the claimant’s functional and vocational capacity indicated she was not suited to returning to work in hairdressing but was capable of undertaking a range of occupations with sedentary or light physical demands on a full-time basis.
Ms Maamary demonstrated she could attend both a functional and vocational assessment as well as a third medical appointment on the same day so VCC opined it ‘would appear likely that she has the capacity for full-time work from a cognitive and emotional perspective’. VCC’s psychological testing suggested a heightened risk of symptom magnification, but these were not validated.
Ms Maamary reported that she fell asleep easily and does not experience any sleep disturbance.
The right hand can perform full time sedentary work. The left hand grip strength demonstrated it was also sufficient for sedentary and light tasks. She can crouch and stand without support.
Ms Maamary’s long period out of the workplace may require a graded return to work over a period of three to six months, but she has been caring for a toddler alone for up to eight hours per day, which indicates she has ongoing manual handling capabilities.
Ms Maamary’s fear of driving may limit the range of employers. This may warrant specific therapy to help her return to driving, although Ms Maamary is prepared to catch public transport when necessary. “Further clinical treatment may pathologise her present condition and undermine what appears to be a relatively productive vocational stance at present.”
Success in job seeking may help her return to driving.
Medical Assessor Wijetunga's permanent impairment certificate dated 8 December 2023 certified that the accident caused injuries to the cervical spine, right shoulder, lumbar spine, right wrist, and right hand giving rise to 14% permanent impairment.
The right upper extremity injuries led to a permanent condition affecting the right wrist and hand’s functionality.
The insurer disputed the lumbar spine injury, because New South Wales Ambulance and Liverpool Hospital did not note any lumbar spine pain and the first note about lower back pain is four weeks after the accident. The insurer relied on Dr Andrew Keller's opinion to submit that the accident did not cause a lumbar spine injury and that the lumbar spine, cervical spine and shoulders did not give rise to an assessable permanent impairment.
The Medical Assessor found the severity of the accident described and the injuries and subsequent treatment described in the clinical notes demonstrates it was clinically possible that the accident caused cervical and lumbar spine, right wrist and right shoulder injuries.
Her neck pain is a whiplash associated disorder in remission.
There is right shoulder pain and stiffness.
The claimant’s lower back pain is constant but there are no radicular features.
Recent GP notes from Dr Andrew Noussair show the claimant is still presenting with right hand and lower back pain relating it to the accident.
On 1 October 2024 the claimant presented with lower back pain.
On 14 January 2025 the notes show the claimant experienced nerve pain in her (right) arm, which requires constant massage to relieve and pain medication.
SUBMISSIONS
Non-economic loss
There is no relevant evidence about any pre-accident conditions.
The claimant submits she suffered frank injuries in the accident, which have led to chronic physical conditions, which led to further medical intervention and life-changing disabilities. The claimant seeks $300,000 under this heading.
The claimant is young and will have approximately 55 years of using her right hand with difficulty.
The insurer says the appropriate award is $200,000.
Economic loss submissions and evidence
The claimant's solicitors answered the insurer’s request for economic loss particulars on
18 July 2024 as follows:(a) the claimant commenced employment as a hairdresser (apprentice) in Bankstown, where she was employed from 2011 until 2015;
(b) from 2015 until 2019 she worked for Hairhouse Warehouse in Bankstown and Top Ryde;
(c) due to the pandemic the claimant's employment was terminated. She commenced working around August 2020 for four days a week in Chester Hill, with a commencing salary of $550 net per week, and
(d) that employment was terminated on 13 October 2020 due to the claimant's injuries from the accident.
The claimant alleges in her submissions dated 5 September 2024 that her weekly earnings as a hairdresser would have increased to $850 net per week if she stayed at Chester Hill, and eventually her earnings would climb to $1,200 net per week.
The claimant seeks from the date of accident for 52 weeks $550 net per week (totalling $28,600). The claimant alleges that her salary the following 52 weeks would have been at least $850 net each week ($44,200).
The claimant fell pregnant in September 2022 and gave birth on 25 March 2023. She intended to return to work on 20 February 2024. Accordingly, the claimant seeks $850 net per week from 20 February 2024 as a continuing loss up to the date of this decision. Against that are her average earnings of $300 net per week since 19 August 2024.
Past superannuation is claimed at 11% of the before tax amount of the above figures.
In these submissions the claimant quantifies her future economic loss at $800 net per week until retirement. This is pitched on the basis that the claimant is permanently unable to return to full-time work and her earnings would be limited at $300 net per week. She claims she would have been able to consistently earn $1,100 to $1,200 per week, but for the accident.
In updated submissions on future economic loss dated 1 October 2024, the claimant alleges she intended to operate her own business, where she would have been able to earn $1,500 net per week. This is based on an annual gross profit of $140,000 after overheads.
The claimant did not offer documentary evidence of her preparing to start her own business, such as a business plan or business loans.
She claims $1,200 per week by the relevant multiplier of 909.9 less vicissitudes. Future superannuation is claimed at 11%.
The statutory benefits the insurer paid totalled $111,827.13 as of 26 March 2025 including income tax.
The insurer's evidence and submissions on economic loss are the claimant’s PAWE was calculated at $583.33 gross per week based on one payslip for the week ending
13 October 2020 which stated earnings over 40 hours $750 gross ($652 net).During the pandemic the claimant received Job Seeker from Centrelink of around $600 per fortnight.
The insurer relies on Dr Keller's opinion dated 1 March 2023 that the claimant’s injuries would have rendered her unfit for work up to three months following the accident and for another two to four weeks after the plates were removed.
The loss in this period would be 16 weeks x $550 = $8,800.
The insurer submits that based on Dr Keller’s report the claimant had residual earning capacity from January 2021 until January 2022.
The COVID-19 pandemic was also a relevant factor during this period. The relevant stay-at-home orders were from 26 June 2021 to 11 October 2021 (107 days). Accordingly, the claimant's claimed loss should be discounted 50% being 26 weeks times $550 = $14,300.
From January 2022 until January 2023 the insurer submits the claimant had residual earning capacity as well as falling pregnant.
The VCC report suggests the claimant could have secured suitable roles in the local labour market with expected earnings between $1070 – $1640 gross per week.
Utilising the average of those amounts yields $1,355, which is $1,070 net. The claimant working part-time was fit to earn $749 being 70% of the average net figure. The balance of that figure is $224.70, which is the claimant's weekly loss. That totals $11,648.40 in 2022.
The insurer does not allow for any loss from 25 February 2023 until February 2024 because the claimant would have been unpaid during maternity leave, despite the insurer paying the claimant's statutory benefits during this period.
The insurer submits the claimant has not adequately addressed her allegation that she is earning an average income of $300 net per week and that a loss of $850 per week should apply until retirement age.
Further, because the claimant has proved she can work as a butchers shop assistant in a team of up to 10 people, in a busy, fast paced and stressful environment then she has capacity to work in other similar environments.
The insurer relies on Dr Keller’s opinion that she could work in a light or administrative role avoiding lifting more than 2kg or rapid or heavy gripping in the right hand.
Dr Ravagnani’s report dated 18 September 2022 concluded that while the claimant is relatively young and she “remains at a stage in her career development where she can consider alternative occupations in line with her interest”.
The VCC report opines that she “demonstrated the physical capacity to perform sedentary and selected light tasks on a full-time basis with provisions for alterations in work posture and limited work above shoulder height and at low levels”.
The insurer submits that the range of suitable jobs Ms Maamary is qualified to perform will provide earnings (for full time work) in the range $1,070 - $1,640 /gross weekly (market rate for age).
The insurer submits that no award ought to be made for future economic loss on the basis that the claimant is capable of working in a variety of positions which her injuries would not affect and earning $1,070 (net full time) or $749 (at 70% for net part time earnings).
REASONS
Reliability
The insurer did not make explicit submissions about reliability but Mr Wilson asked Ms Maamary several questions about whether remaining in her current work arrangements was based on a desire to continue her current lifestyle where she can care for her daughter almost full time, while working part time and claiming benefits.
The insurer’s experts VCC suggested that Ms Maamary’s testing showed there was a risk she may have been exaggerating her symptoms.
Ms Maamary was adamant that her current work arrangements were all she could manage.
Throughout the assessment I found Ms Maamary was doing her best to be truthful and consistent in giving evidence, which allows me to accept the impact she describes.
Injuries
The claimant suffered frank injuries which were not disputed being:
(a) broken right wrist;
(b) three broken ribs;
(c) grazes and bruising;
(d) broken left “pinkie” finger;
(e) shoulder pain;
(f) neck pain, and
(g) elbow pain.
The insurer disputed that the lower back was injured in the accident because it relied on Dr Keller’s opinion that the fact that the first medical practitioner notation of lower back pain was four weeks after the accident.
Against that is the claimant complaining of thoracic spine pain at the hospital and including her lower back pain when she applied for personal injury benefits two weeks after the accident.
Although there was delay in reporting the lumbar spine it is possible the claimant and her treating doctors were focused on treating the right hand. The ambulance report relevantly noted the claimant initially had hip pain, which may have been referring from the back.
There was evidence that the claimant experienced severe pain in the hospital requiring the anaesthetist to intervene and the earliest GP notes referring to the claimant taking Endone, which can be stupefying and could mask lower back pain symptoms as well as treating her wrist pain.
There were no incidents after the accident which could lead to low back pain.
Medical Assessor Wijetunga’s reasoned in her assessment that the mechanism and severity of the accident could have caused a lumbar spine injury.
It is reasonable to hypothesise in the context of an emergency admission, the claimant’s right hand injury requiring urgent surgery and the lack of response to pain medication requiring the anaesthetist’s intervention recorded in the Liverpool Hospital post op notes that the claimant was more focused on the hand injury rather than specifying the lumbar spine. It is also possible the hospital staff were more focused on managing the claimant’s pain and that the note taking was effected.
It is relevant if clinical notes do not include early reports, but that alone does not determine whether there is a nexus between the subject accident and the claimant’s conditions.
Bugat v Fox [2014] NSWSC 888, the Supreme Court found that contemporaneous recording of complaints in clinical notes can be relevant to establishing causation, while omitting a body part is also relevant. However, these factors, while relevant, do not solely establish causation.
The lower back pain as reported in the application for personal injury benefits dated two weeks after the accident was sufficiently contemporaneous with the accident to establish a nexus.
I am satisfied that the accident injured the claimant’s lumbar spine.
Disabilities
The claimant gave evidence that her lower back and right hand pain with fatigue in the right upper extremity is ongoing since the accident.
The HITS notes also outline exhaustive attempts to rehabilitate the claimant’s right hand, but conceded she was still left with considerable change and loss of sensation with markedly reduced grip strength more than two years after the accident. The claimant says it is continuing.
The claimant’s evidence is that lumbar spine is a continuing issue, which varies in severity. This is also mentioned in the GP notes and Dr Keller’s reports despite that doctor doubting the nexus with accident.
Medical Assessor Wijetunga’s assessment also makes findings that support the claimant having the disabilities listed below:
(a) neck pain which is in remission;
(b) right shoulder pain and stiffness;
(c) constant lower back pain without radicular features.
(d) severe right hand pain and restriction of movement, and
(e) right shoulder pain and restriction of movement.
I find there is sufficient evidence to accept that the accident caused these disabilities and apart from the cervical spine have remained constant.
The various reports show that there are varying reports about insomnia. In the GP clinical notes, it is referred to in the context of pain medication. The VCC report that the claimant mentions it is not a problem, while Dr Keller recorded high levels of back pain causing broken sleep.
I find this disability is caused by the accident but varies in intensity.
In the VCC report there is a comment about how Ms Maamary is focused on the physical aspects of the accident sequelae.
Evidence about the claimant’s psychological condition is undeveloped apart from what the vocational assessors record, despite the accident being sufficiently serious to establish post-accident mental trauma in people of normal fortitude and with long lasting physical disabilities which could lead to depression.
The claimant has displayed past avoidant behaviour in staying away from crowds, reliving the circumstances of the accident and declining to drive since the accident. However, there is insufficient evidence to assess the intensity and duration of any psychological condition.
DAMAGES
Non-economic loss
The fundamental principle of assessing or awarding damages to an injured person is that a tribunal should assess damages so that they represent no more and no less than a plaintiff’s actual loss: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, Lord Blackburn at [39].
In personal injury matters, because it is difficult, if not impossible, to restore an injured person to the health they enjoyed before the injury, the compensatory principle has been qualified for non-economic loss damages by the phrase “so far as money can so”: Robinson v Harman [1848] All ER Rep 383.
Section 1.4 of the MAI Act defines non-economic loss as:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life, and
(d) disfigurement.
The law recognises that an award for non-economic loss cannot be perfect because it cannot be calculated precisely like other forms of damages.[1]
[1] Lee Transport Co Ltd v Watson (1940) 64 CLR 1 at [13]– [14], Dixon J.
The NSW Judicial Commission’s bench book on damages, which summarises the authorities on compensation for non–economic loss[2] and Luntz.[3] are helpful in assessing these damages.
[2] Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis.
There is a statutory cap of $645,000 that limits the amount of non-economic loss damages. However, a tribunal cannot calculate the entitlement based on a percentage of that maximum amount, and there is no proportionality.[4]
[4] Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 – as per Heydon JA at [39].
Ms Maamary submitted the appropriate assessment is $300,000, and the insurer submitted $200,000.
There are considerable continuing disabilities as recorded in the claimant’s statement and as Dr Ravagnani recorded as relevant to assessing the claimant’s non-economic loss damages.
Her right hand continues to be painful and limited in use. That hand is sensitive, weakened and changed in appearance.
Her back continues to be painful. Such a persistent condition is prematurely ageing.
She has lost flexibility, and avoids certain movements, which is poignant in a young woman.
Four and a half years have passed since the accident. The accident injured Ms Maamary in frightening and painful circumstances. Since then, she has experienced nightmares and flashbacks coupled, social withdrawal, loss of mobility, loss of dexterity and physical pain.
The accident and its sequelae has impacted on the claimant’s confidence, which also impacted her resilience in returning to work.
The claimant did not offer evidence about how her right hand impairment and back pain could impact on personal care or intimacy with her husband, although it was mentioned in the HITS notes that the hand condition caused mild impact on sexual activity and she was clear her back and hand conditions adversely impacted on her ability to perform childcare and home duties.
There is varying evidence about how her pain and her mental condition could impact her capacity to sleep soundly, excluding her from considerable benefits for her daily activities.
Being unable to sleep soundly due to pain from her injuries suffered in the accident is a severe disability. It is an important biological function essential for life.
Vital functions during sleep help the body in physical recovery and repair, support brain development, cardiac function and body metabolism, support learning, and improve memory and mood. Ms Maamary will find it more difficult to mitigate her daytime condition and exercise residual work capacity if she cannot achieve optimal sleep due to the accident.
The claimant has reduced her social activities and she avoids crowds, whereas before she was focused on her friendships and the social side of work.
I accept her emotional symptoms continue which cannot be characterised as a mental illness or injury. However, these symptoms impact on her mobility and autonomy because she must rely on her husband for transport. She is hopeful of that situation changing.
She has extrinsic motivation to mitigate her disability, because before the accident she enjoyed her mobility. She also has a child and may have more, which can motivate her to return to driving to assist with school and other activities such as sport and cultural events.
There has been considerable physical pain and suffering from the bodily injuries.
Initially the post operative notes show she was in a lot of pain in her ribs, both hands, right wrist and lumbar spine. She was receiving strong medication for at least two years. She did not give evidence of digestive issues or withdrawal symptoms, which frequently accompany prescribed opioid use.
There is evidence of a significant loss of amenities and enjoyment. The claimant’s friend stated her personality has changed for the worse since the accident.
The evidence of not being able to perform as a hairdresser signifies a literal loss of dexterity and a figurative loss of mastery in a field she felt would be her entire future.
Ms Maamary cannot claim that these injuries would shorten her life. However, the circumstances of the accident were frightening as she thought she was going to die.
Disfigurement is less relevant to Ms Maamary’s case as she does not complain about her scarring on her right hand.
She can expect on the medium life tables to live another 58 years with this accident’s after-effects.
I assess the appropriate past and future damages for the claimant at $300,000 for non-economic loss.
Past economic loss
There is no evidence that before the accident Ms Maamary had any difficulties in performing all the duties involved in hairdressing, which included using her hands to cut and style hair and remain on her feet throughout the work day.
Since the accident the injuries and the disabilities caused her to lose her dexterity, and suffer lower back pain, which reduces her capacity to remain on her feet or be seated without taking frequent breaks. This has led to her managing her current administrative and clerical work by working part time and seeking concessions which allow her to take regular breaks.
In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined in a case such as this, is whether a claimant has sustained a loss or diminution in earning capacity, and if so whether that loss or diminution will result in economic loss.
Summarising a key principal explained in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (Cervantes) calculating past and future economic loss involves comparing a claimant’s accident related circumstances, and the likely circumstances if the accident had not happened. Where there is loss of earning capacity, a tribunal must consider whether such a loss still might have occurred “independently of the accident”. [33]
Before the accident Ms Maamary was unrestricted in her earning capacity. The evidence showed she was a consistent worker and earner.
I find it was most likely that Ms Maamary would have continued to work as a hairdresser indefinitely, apart from occasional time off for child raising. She intended to keep working and earning money as long as she was able to. I do not agree with the insurer’s submissions she was on a job trial at the time of the accident and was unlikely to have continued employment.
The claimant’s vocation was hairdressing. She was mobile and could find work anywhere.
However, I do not agree with the insurer’s submissions that the claimant could have been working full-time three months after the accident in suitable employment.
During January 2021 until January 2022 the claimant was still receiving treatment and she was dealing the physical and emotional pain from the accident. I do not regard the pandemic as discounting the accident’s adverse impact on her employment because she had lost full-time work, the flexibility to take on other work from private customers, and she was still participating in rehabilitation including job seeking training and vocation identification.
To date Ms Maamary has been unable to return to her pre-accident work regime. Her evidence is she is now restricted to usually working no more than 20 hours per week since then.
When VCC in May 2024 and Mark Ravagnani in November 2024 interviewed the claimant, those reports confirm that the claimant still saw herself as disabled, and being rejected by potential employers because she had disclosed that she required arrangements to accommodate her disabilities.
The VCC’s and Dr Keller’s reports attest she could now work full time in a suitable position, but her statement and oral evidence show her injuries still reduce her capacity for full time work.
Mark Ravagnani’s reports support the claimant’s assertion she has tried to find suitable full time work but has been rejected due to her disabilities.
Accordingly, I find that the claimant’s loss of capacity to perform full time work continued up to 19 August 2024 when she commenced part-time work in administration for a butcher.
I agree with the insurer’s submissions that the claimant did not provide justification for why her earnings would increase. This could have been dealt with in her statements, senior colleagues statements, tables of comparable earnings for hairdressers or job searches relevant to her seniority.
The claimant was looking for work but being rejected due to the accident related injuries. I find her loss would have continued due to the accident from 20 February 2025 until she started working for the butcher on 19 August 2024.
I find the claimant has not been able to return to work as a hairdresser due to the injuries arising from the accident and did not have capacity to work at all due to her injuries or when she became partially able was not given an opportunity to work due to the accident until 19 August 2024.
I find the accident intervened to cause the claimant to have totally lost her earning capacity as a hairdresser immediately after the accident until 24 March 2023 when she gave birth, which is 127 weeks.
She says she would have been on maternity leave until 20 February 2024 and does not claim loss in that period, although her statutory benefits continued and if she had been employed paid maternity leave could have been available.
I note the insurer assessed the claimant’s actual loss for the purpose of statutory benefits immediately after the accident was $583 gross per week based on $14.58 per hour.[5] The annualised net figure calculated using the Australian Tax Office tax calculator for 2020 – 2021 is $539.
[5] Rehab Management report.
I find that this is a suitable basis for estimating the claimant’s loss of earnings, in the absence of other evidence.
The Australian Reserve Bank website says the Measure of CPI inflation for the last five years has been between 2% and 3%. I will apply 3% per year to mark an inflationary increase of the claimant’s loss at the time of the accident and round up or down to the nearest dollar in the annual total.
The net figure for the current financial year is calculated by estimating the tax that would be deducted if the claimant was earning that figure ($656) for the financial year to come up with a weekly net figure. The claimant’s current earnings of $300 net is deducted from the net figure of $598 weekly.
I assess the past economic loss as follows:
Year
Calculation
Total net
13 October 2020 to 30 June 2021
$583 gross x 37 weeks (total gross $21,583)
$19,943
2021 to 2022 FY
$600 x 52 weeks (total gross $31,200)
$28,730
2022 to 2023 FY until 23 March 2023
$618 x 38 weeks (total gross $23,484)
$22,480
2023 to 2024 FY from 20 February 2024
$637 x 19 weeks (total gross $12,094)
$12,094
2024 to 2025 FY until 19 August 2024
$656 x 7 weeks (total gross $4,592)
$4,592
20 August 2024 to date in 2025 FY
$656-$300 x 38 weeks (total gross $13,528)
$11,624
Total
$99,463
Allowing superannuation at 11.5% of the claimant’s gross past economic loss of $106,481 is $12,245.
That totals $111,110 for past loss. The insurer can claim a credit for statutory payments of $115,835.01.
The insurer submits that the s 4.5(1)(d) MAI Act damages are $2,162. Income tax was not withheld from the claimant’s weekly benefit payments made after her payments continued after the 78th week after the accident.
Future economic loss
Due to her accident-related physical injuries Ms Maamary claims she cannot exercise her ambition to work any more than three hours per day, four days a week and earn $300 net per week.
The insurer submits that no award ought to be made for future economic loss on the basis that the claimant is capable of working in a variety of positions which her injuries would not affect and she could earn $1,070 (net full time) or $749 (at 70% for net part time earnings).
I must have regard for the provisions of s 4.7 of the MAI Act, which require an assessment of the trajectory of the claimant’s most likely circumstances, but for the accident.
“4.7 Future economic loss—claimant’s prospects and adjustments (cf s 126 MACA)
(1) Damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) The amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
(3) If an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
In her statements and her interactions with occupational assessors the evidence is consistent that she was likely to remain a hairdresser but for the accident. It is also possible that she may have progressed to running her own business, and there is a chance that her business would have been successful. This would have increased her earnings. There is no evidence estimating a per centage for the likelihood of success, but the evidence supports it was most likely that she would always have had employment in her field.
The evidence such as her popularity with clients and the enthusiasm for what she saw as a vocation supports finding that if the claimant had not been in this accident that she would have had the opportunity to increase her earnings as a hairdresser.
With a permanently impaired right hand and chronic lower back pain requiring concessions for rest and being restricted to suitable duties she has reduced capacity to compete on the open labour market in any of the occupations suggested by VCC and Rehab Management.
Loss of opportunity
A tribunal must assess a claimant's future earning capacity based on all probabilities, including other injuries or illness, business failures, commercial shocks such as recessions, promotion, growth, moving to other job markets or alternative employment. These can be negative or positive impacts, such as successful career change.
The claimant cannot return to hairdressing, noting the disabilities arising from the right hand and wrist injury.
The clinical notes from the Hand Injury Therapy Service (HITS) who treated the claimant during 2022 referred to above demonstrate she has loss of function in the dominant hand, in particular total loss of sensation in the side of the hand extending into the little finger and partially in the right ring finger plus diminished sensation in most of her right hand. The DASH testing shows a high score for loss of function in that hand.
Hairdressing requires fine motor control because it involves the manipulation of scissors to make precise cuts, and the HITS notes depict the claimant losing that control because of the upper extremity injuries suffered in the accident. The claimant even expressed how it affects movements in washing clients hair or sweeping up, so she is not even able to contribute at the hairdressers assistant level.
There was evidence that the claimant had private clients she would see in their homes outside of shop hours. The claimant also gave evidence hairdressing was a job that could allow her to seek employment anywhere.
It is common knowledge that tradespeople attend on private clients on weekends and evenings in addition to their employment or businesses. Hairdressers are able to do this discreetly because their tools can be carried in a handbag. They also attend weddings and other special events to deliver their services, which must necessarily take place out of business hours.
I find it was probable that if the claimant continued to work as a hairdresser, she would have been able to develop her private client base as well as attracting clients to any business she established. The loss of her right hand function due to the accident has caused that loss.
Those earnings most likely would be earned in cash or barter so there would be no tax or bank records to support this.
I note Doussa J’s reasons in Giorginis[6] about how a party is bound by its documentary evidence and that such a discrepancy (such as not declaring income) can reflect on a claimant’s credit so that the evidence needed to be scrutinised with special care.
[6] Giorginis v Kastrati (1988) 49 SASR 371, [375]-[376], per von Doussa J.
However, in this case there is agreed impairment of the dominant hand in an occupation that demands its use.
McColl JA in Morvatjou v Moradkhani [2013] NSWCA 157 (Morvatjou) emphasised that although documentary evidence of actual income was the most helpful guide to assess loss of earning capacity, a lack of documentation did not necessarily disqualify a plaintiff from recovering damages based on evidence of actual earning capacity.
The claimant’s loss cannot be calculated with precision, but it is a loss of economic capacity.
The claimant's case is she would have set up her own hairdressing business. There was evidence that she had been looking at the premises in Hurstville. She was going to employ hairdressers who could generate income for the business at $1,000 per day. The claimant submits that it is what she was able to do for businesses that employed her.
She submits that after she paid overheads and tax, she would net $1,500 per week. She claims $1,200 net per week until retirement as her loss of economic capacity plus superannuation after the current weekly earnings of $300 are deducted.
In the alternative she claims that as an employed hairdresser she would eventually net $1,100 - $1,200 per week.
After deducting $300 per week, her loss in that scenario would be approximately $850 per week.
At the moment the claimant says her current employment capacity will persist indefinitely due to the accident. However, the evidence supports her having a residual earning capacity to work in roles that would suit her physical disabilities.
The VCC and Dr Ravagnani’s reports address the claimant's reluctance to adapt to her circumstances and frankness about her disabilities to prospective employers as being an employment barrier.
The claimant quantifies the loss of opportunity to start her own business at over $900,000 plus superannuation. She quantifies not being an employed hairdresser at around $618,000 plus superannuation.
As noted earlier, the claimant's evidence about her employment trajectory relies on her assertions, apart from her friend's view that the claimant was good at public relations, was popular with customers and good at her work. The projected income is probably based on what the claimant perceives or has heard are reasonable earnings in her industry, but her evidence could have been supported with some documentary evidence like the business plan or statements from her previous employers or successful salon owners. I cannot give those assertions enough weight to accept it as a probable outcome.
There is support for her having a strong work ethic, because her mother had her own business, her siblings are meaningfully employed and because the evidence is consistent that before the accident the claimant treated hairdressing as her vocation.
That evidence is enough for me to find it was most likely she would have attempted to run her own business at some point in her career to earn the sums she alleges. I am also satisfied there was a chance she could have been successful, but it is also a matter of common knowledge that businesses rise and fail frequently due to a range of factors, so it is only a chance.
The basic principles for evaluation of a claim for future economic loss being compensated with a cushion is expressed by the High Court in Malec v JC Hutton Pty Ltd (Malec) held in assessing damages, the likelihood of future hypothetical events is to be considered.
Justices Deane, Gaudron and McHugh reasoned:
“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring . . . Where proof is necessarily unobtainable, it would be unfair to treat as certain a predication which has a 51 per cent probability of occurring but to ignore altogether a predication which has a 49 per cent probability of occurring. Thus, the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”
The claimant has lost the opportunities to develop private clients and eventually run her own business is not capable of being precisely fixed, Following Cervantes, Malec[7] and State of NSW v Moss,[8] I assess a buffer for that loss at $40,000.
[7] (1990) 169 CLR.
[8] (2000) 54 NSWLR 536.
Residual earning capacity
Ms Maamary had to prove her economic loss; see Todorovic v Waller (1981) 150 CLR 402 at [412]-[413]. However, once she established that loss, the insurer must provide evidence that Ms Maamary has a residual earning capacity and provide evidence of what she can do and what jobs are open to her.[9]
[9] Luntz, Assessment of Damages for Personal Injury and Death (5th ed) at 241 [1.11.26].
The insurer must provide evidence that a claimant has a residual earning capacity that she is practically capable (rather than theoretically capable) of exercising. A tribunal must then make a practical assessment of the likelihood of Ms Maamary obtaining and keeping a real job, which is accessible to her, considering her pain, restriction, and impairment related to the accident: see Mead v Kerney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.
The vocational assessment reports identified career paths in sales, supervision, and clerical roles. I agree with the insurer that Ms Maamary has skills she could apply in those fields.
Against that is the preponderance of evidence that Ms Maamary has a limited lifting capacity and a maimed right hand and that as a disabled and unemployed person for almost five years, she faces significant prejudice on the open labour market. She only has capacity for light work and requires any employer to plan for rest and breaks. I must assess whether she will eventually be able to practically exercise her residual earning capacity.
The insurer has not provided evidence that deals with the following:
(a) how the claimant would deal with seeking concessions from potential employers to make up for her functional and psychological disabilities, apart from the insurer’s opinion that she should not disclose her disabilities to get her foot in the door rather than negotiate with prospective employers to ensure suitable conditions to complete her work;
(b) the insurer’s submissions and reports do not deal with how she would manage her functional conditions if her work required her to go outside the restrictions that all the doctors agree she would need. Also, I am not satisfied relying on anti-discrimination law addresses how she would retain full-time employment if she inflamed those conditions or her disabilities became known to her employer after she concealed them during the recruiting process, and
(c) there are no strategies that address how Ms Maamary would fare when competing with non-disabled applicants in the open labour market for full-time work, except to not disclose the disabilities.
Against the insurer’s submissions that Ms Maamary could be employable fulltime on a sustained basis are the following points:
(a) the broad consensus of medical and lay evidence supports the claim that the accident has left the claimant impaired in dexterity and lifting capacity and that this impacts on her work capacity;
(b) potential employers, would need to make allowances for her, including additional time off work, dealing with her reduced confidence, and limited capacity to perform physical tasks;
(c) she must rely on public transport for now or have her husband drive her to and from work, and
(d) even where she obtains better paying suitable jobs the longevity of any role could depend on whether she aggravated any of her conditions.
I am satisfied though that there is a chance that Ms Maamary could find suitable full-time work over the next 39 years because:
(a) she is young so she can redirect her energies to other career paths;
(b) there is no psychological evidence other than the psychologist’s early clinical notes and Dr Ravagnani’s reports which indicate her emotional conditions from the accident and the secondary impact of her injuries would prevent her from returning to full time work eventually because of the accident;
(c) she has demonstrated she has a good work ethic;
(d) she has in demand skills and training although these have deteriorated since the date of the accident;
(e) there are suitable jobs identified that are within the claimant’s geographical reach and in demand;
(f) she has extrinsic motivation as her husband is not working, and the fact that her daughter and other children they may have will eventually go to school and free up her time;
(g) time will pass and her anxiety is likely to abate so she may drive again and have more confidence. The need to transport children will also be a factor in getting her back to driving, and
(h) she has shown resilience and a can-do attitude in terms obtaining part time work and seeking rehabilitation despite the physical pain.
I am satisfied that these are favourable vicissitudes that mitigate her loss of economic capacity.
Assessment of future economic loss damages
Bearing in mind the findings that there is no evidence to contradict the proposition the claimant would have remained a hairdresser and the accident has meant she cannot return to hairdressing, the claimant’s future loss must be assessed on any losses arising from not being able to accept the roles identified by VCC and the other vocational assessors.
VCC's job match search identified administration and clerical roles that could be suitable as full-time positions if employers will accommodate the claimant's disabilities.
VCC also suggests other higher paying roles such as teachers’ aide or insurance clerk, which require further training. I do not find there is evidence that supports her aspiring to undergo further training that would suit her to assume the suggested higher paying roles.
The insurer submits that the range of suitable jobs Ms Maamary is qualified to perform will provide earnings (for full time work) in the range $1,070 - $1,640 /gross weekly (market rate for age).
The pay for these roles vary above or below $1,200 gross per week, which I will accept as the median pay rate. The evidence from the vocational assessors have identified the roles the claimant is most likely to seek, noting her disabilities.
The claimant's case is she cannot do these jobs full-time, because even with assistance from an understanding employer who allows her to take rests she is doing as much she can manage now. Her case is her current workload earning $300 net per week is the best she can do, and she cannot practically exercise the residual earning capacity the insurer submits she is capable of doing.
The insurer has provided evidence that if the claimant can overcome the prejudice on the open labour market arising from her disabilities and be offered these roles, she could do them successfully full-time and not suffer any future economic loss.
I prefer the view that the claimant’s accident related condition will continue to prejudice her employability and competitiveness on the open labour market, but any loss that arises from that will be mitigated by the favourable vicissitudes I refer to above.
It is most likely that given her seniority and experience as a hairdresser or in one of the roles VCC suggested the claimant could be competing for roles that pay $1,200 gross per week. Using the ATO tax withheld calculator that net is $992 per week, subject to deducting $300 for her current earnings.
Effectively, if the claimant does not obtain full time work in the clerical or administrative file she would lose $692 net per week because of her injuries.
Applying the 5% table figure of 909.9 that yields $629,651. If it is discounted for vicissitudes by 15% that is $535,203.
The chances her accident related conditions will continue to operate adversely against her periodically or continuously will remain significant. However, she has youth and incentives to mitigate her employment situation and I find it is probable that she will act on those incentives. There is no argument that non-accident circumstances would have impacted adversely on the claimant’s earning, but it is not excluded from consideration.[10]
[10] Cervantes
Accordingly, it is reasonable to utilise a higher discount for vicissitudes. In this case the appropriate discount would be 45%. 45% applied to $629,651 is $346,308.
The loss of potential superannuation is assessed by multiplying $1,200 gross - $300 by 11.5% by 909.9 by 45% to obtain $51,797.
Section 7.36 (1) (b) of the MAI Act requires me to assess the damages for that liability that a court could award.
I assess the damages for this claim based on the above findings:
| Non-economic loss | $300,000 |
| Past loss of earnings | $99,463 |
| Past superannuation | $12,245 |
| Income tax on statutory benefits | $2,162 |
| Future loss of earning capacity | $386,308 |
| Future loss of superannuation | $51,797 |
Total Damages Assessed: | $851,975 |
The insurer is to have credit for statutory payments pursuant to s 3.40 of the MAI Act at $115,835.01. This will be reflected in the costs assessment.
The adjusted damages are $736,140.
Costs and disbursements
I refer to the claimant’s schedule of disbursements. I have assessed the claimant’s costs and disbursements in accordance with the attached damages and costs calculator.
The costs calculated based on the MAI Regulation 2017 on the above amount of damages plus disbursements claimed is $54,271.80. However, the claimant’s submissions were on the Motor Accidents Compensation Act 1999 schedule. The amount for counsel’s conferences and medical reports appeared too low. Further one of Dr Ravagnani’s reports appeared to be omitted.
I have allowed for two hours conferences.
The parties have leave to use my costs calculations as a basis to agree on costs.
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