McLean v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	McLean v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 658
Claimant:	Brett McLean
insurer:	Insurance Australia Limited t/as NRMA Insurance
Member:	Anthony Scarcella
DATE OF DECISION:	29 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Contributory negligence; assessment of a claim for damages under Division 7.6 of the Motor Accident InjuriesAct 2017 for non-economic loss, past loss of earnings and future loss of earnings; where claimant admits to abusing alcohol and cannabis before and after the motor accident and its effect in the assessment of damages; extent of physical and psychological injuries in dispute; Podrebersek v Australian Iron and Steel Pty Ltd, Pennington v Norris; Stapley v Gypsum Mines Ltd, Smith v McIntyre, Broadhurst v Millman,Hallowell v The Nominal Defendant, Medlin v State Government Insurance Commission, Husher v Husher, Zilio v Lane and Harrison v Melhelm considered and applied; Schneider v Smith & Anor distinguished; Held – on the issue of contributory negligence, the claimant’s damages are to be reduced by 0% on account of the claimant’s contributory negligence.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. On the issue of contributory negligence, the claimant’s damages are to be reduced by 0% on account of the claimant’s contributory negligence. 2. The amount of damages for the claim is $1,001,691.46. 3. The amount of the claimant’s costs in the matter is $64,383.91 inclusive of GST.

STATEMENT OF REASONS

bACKGROUND

This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 30 December 2018 (the motor accident).
The claimant, Mr Brett McLean, is a 41 year old man, who alleges that he suffered injuries in the motor accident.
On 7 January 2019, Mr McLean made an application for personal injury benefits in respect of the motor accident against Insurance Australia Limited t/as NRMA Insurance (NRMA), being the compulsory third-party insurer of the vehicle at fault.[1]
[1] McLean’s documents at pages 4-9.
On 10 September 2020, Mr McLean made an application for damages under common law.[2]
[2] McLean’s documents at pages 18-20.
In a liability notice dated 9 December 2020, NRMA admitted liability, including an admission of breach of duty of care, but alleged contributory negligence on the part of Mr McLean at 20%.[3]
[3] McLean’s documents at pages 21-23.
The Application was lodged with the Personal Injury Commission (the Commission) on 20 December 2021.
At a preliminary conference on 14 March 2022, the matter was set down for an audio-visual assessment conference on 20 June 2022 but was subsequently rescheduled by the Commission as an in-person assessment in the Commission’s Darlinghurst premises. Mr Mark Daley of counsel appeared for Mr McLean, instructed by Mr John Elhage, solicitor. Mr Ben Wilson of counsel appeared for NRMA, instructed by Ms Jamie Kulczycki, solicitor and Ms Stephanie Kaltoum, solicitor.
The parties agreed that the following issues were required to be determined by me:
(a)   any contributory negligence on the part of Mr McLean;
(b)   the nature and extent of Mr McLean’s injuries;
(c)   the quantum of Mr McLean’s damages for non-economic loss;
(d)   the quantum of Mr McLean’s damages for past loss of earnings or past loss of earning capacity, and
(e)   the quantum of Mr McLean’s damages for future loss of earnings or future loss of earning capacity.
The parties agreed that:
(a)   the deduction to be made under s 3.40(1)(b) of the MAI Act (statutory benefits paid) amounts to $52,906.50;
(b)   NRMA had made an advance payment to Mr McLean in the sum of $15,000;
(c)   payments made by NRMA under s 4.5(1)(d) of the MAI Act (Fox v Wood damages) amount to $306;
(d)   it was not necessary for me to issue my reasons for decision in draft, and
(e)   there is no dispute in respect of Mr McLean’s legal costs.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)   Mr McLean’s Application dated 20 December 2021 and the final tender bundle of supporting documents lodged with the Commission on
30 May 2022 and identified as “AD18” and “AD19” (McLean’s documents);
(b)   NRMA’s reply to the Application dated 27 January 2022 and the final tender bundle of supporting documents lodged with the Commission on
26 May 2022 and identified as “AD17” (NRMA’s documents), and
(c)   NRMA’s updated tax report dated 19 May 2022, identified as “AD21”.

Oral evidence

Oral evidence was adduced from Mr McLean at the assessment conference.

SUBMISSIONS

Mr McLean’s legal representatives provided written submissions on the substantive issues dated 2 November 2021 and 4 May 2022, supplemented by oral submissions at the assessment conference.
NRMA’s legal representatives provided written submissions on the substantive issues dated 27 January 2022 and updated written submissions dated 26 May 2022, supplemented by oral submissions at the assessment conference.
I will refer to the parties’ submissions under each relevant issue for determination set out below.

CONTRIBUTORY NEGLIGENCE

Mr Brett McLean’s evidence

In evidence, there is Mr McLean’s application for personal injury benefits dated 7 January 2019,[4] which included the following diagram and description of the motor accident:[5]
[image unable to render]
[4] McLean's documents at pages 4-9.
[5] McLean's documents at page 6.
There was no statement by the nominated witness, Joe Causa, in evidence. NRMA made no submissions in this regard and I draw no adverse inference.
In evidence, there is an initial certificate of capacity issued by Dr Penny Croker, general practitioner, dated 14 January 2019. Dr Croker provided the following description of the motor accident on the certificate:
“Motor bike crash – car in front indicated right, then turned left and then sharply right in front of him.”[6]
[6] McLean's documents at page 10.
In evidence, there is an accident description and diagram completed by Mr McLean dated 13 January 2019.[7] I will now refer to the relevant parts of that document.
[7] McLean's documents at pages 15-17.
In response to the question on the accident description form as to who he thought was at fault for the accident and why, Mr McLean stated:
“Kayla Notarianni performed a U-turn, indicating right, but went left into Lindsay St then swung right, directly into my path, resulting me being seriously injured, and out of work, as a direct result of Kayla’s actions. …”[8]
[8] McLean's documents at page 16.
In response to the request on the accident description form to provide a diagram, Mr McLean provided the following diagram:[9]
[image unable to render]
[9] McLean's documents at page 17.
In evidence, there is a statement by Mr McLean dated 12 March 2019 taken by an investigator engaged by NRMA that focused on the contributory negligence aspect of the claim.[10] I will now refer to the relevant parts of that statement.
[10] McLean's documents at pages 24-31.
Mr McLean stated that, on 30 December 2018, he was riding his motorcycle in a northerly direction along Central Road, Unanderra. The weather was fine and the roadway was dry. He was wearing a fully enclosed motorcycle helmet. He usually rode in leathers but as it was an extremely hot day, he wore shorts, a T-shirt and enclosed shoes.
Mr McLean stated that he had been travelling directly behind Ms Notarianni’s vehicle for about several hundred metres along Central Road and estimated that he was a couple of car spaces behind her. He observed Ms Notarianni’s right indicator being activated just before Lindsay Street. However, her car pulled to the left into Lindsay Street and without stopping or any warning, pulled straight out and ahead into Central Road. At this point, her vehicle was at right angles to him.
Mr McLean stated that he was travelling at about 50 km/h. Ms Notarianni’s vehicle left him “with nowhere to go”.[11] He applied his front and back brakes but could not avoid colliding with the centre of Ms Notarianni’s driver’s side of the vehicle between the driver and rear passenger doors. The vehicle had its front wheels over the centre line in the oncoming lane.
[11] McLean's documents at page 27 at [24].
Mr McLean rated the severity of the impact at 8 out of 10, with 10 being the most severe. The motorcycle crushed him up against the vehicle and his knees took the brunt of the impact. He did not fall down. Following the collision, he observed that his left knee was bleeding profusely; his left index finger had snapped; and his left little finger was badly injured.
In evidence, there is a statement by Mr McLean dated 1 November 2021, which, amongst other things, confirmed almost verbatim the circumstances of the motor accident as described in his statement to NRMA’s investigator, except that he stated that his “left knee and left hand took the brunt of the collision”.[12]
[12] McLean's documents at page 40 at [108].
I will now refer to the relevant parts of Mr McLean’s oral evidence at the assessment conference.
In his oral evidence, Mr McLean confirmed that Ms Notarianni was travelling in the same direction along Central Road as he was just prior to the motor accident and that he could see that she was on her P plates at the time. He had been travelling behind her for about 200m. He conceded that he had formed the view that Ms Notarianni was a less experienced driver than he was.
Mr McLean stated that he was aware that Ms Notarianni’s version of events differed from his in key respects. It differed as to who was to blame for the motor accident. Mr McLean disagreed that Ms Notarianni had her right indicator activated for about 30 seconds. It was more like 10 seconds. He agreed that he had an unobstructed view of Ms Notarianni’s vehicle for about 200m in the lead-up to the motor accident and that he was dealing with a P plater in front of him. He disagreed that she had moved slightly to the left but was still on Central Road and came to a stop. He agreed that he had been involved in a rear end motor accident six months prior to the motor accident, where his motorcycle collided with the vehicle in front of him that had braked hard when a dog ran onto the road in front of it.
Mr McLean agreed that, as a fellow road user, he had an obligation to stay a safe distance behind her vehicle at all times. He agreed that, in the lead-up to the motor accident, he had been travelling at about 50km/h. He estimated that he was about 1.5 to 2 car lengths behind Ms Notarianni’s vehicle and strongly denied being any closer. He strongly denied that the motor accident occurred because he was travelling too close to her vehicle.
Mr McLean assumed that Ms Notarianni had activated the wrong indicator and turned up the wrong street and then veered back out and left him with nowhere to go. He had slowed down when she turned left. As soon as she turned left, he picked up his speed again. He estimated that he was doing between 45km/h to 50km/h when she came straight back out in front of him.
Mr McLean emphasised that Ms Notarianni turned left into Lindsay Street, did not stop and came straight back out again into Central Road “and then – bang!” She had turned “hard left” with her right blinker on.

Ms Kayla Notarianni’s evidence

In evidence, there is a statement by Ms Kayla Notarianni, the at fault driver, dated 8 February 2019 taken by an investigator engaged by NRMA.[13] I will now refer to the relevant parts of that statement.
[13] NRMA's documents at pages 10-19.
Ms Notarianni stated that she was 21 years of age and had held a driver’s licence since she was aged 17. She held a current NSW Provisional Driver Licence.
Ms Notarianni stated that, on 30 December 2018, she had been to the beach and had arranged to pick up a friend from her home at 17 Central Road for the purpose of going shopping together. The motor accident occurred on her way to her friend’s home.
Ms Notarianni stated that she was travelling in a northerly direction along Central Road, Unanderra towards Lindsay Street to the left. Number 17 Central Road is directly across from the Lindsay Street intersection.
Ms Notarianni stated that the weather was fine and sunny. The road was dry and visibility was good. She described Central Road as a sealed, straight and flat roadway with one lane running in each direction divided by double lines.
Ms Notarianni stated that, as she approached the intersection with Lindsay Street, she activated her right indicator with the intention of crossing the southbound lane to enter the driveway of number 17 Central Road because her friend’s driveway scrapes the bottom of her car. She believed that she had her indicator on for about 30 seconds as she approached Lindsay Street. At that point, she was not aware of any traffic behind her.
Ms Notarianni stated that, just prior to reaching Lindsay Street, she moved to the left slightly and was still on Central Road but did not indicate left. She came to a stop. Performed all her mirror checks, looked over her shoulder and did not see any traffic coming towards her. She then commenced a right angle turn across Central Road towards the driveway of number 17 Central Road. She did not see or hear the motorcycle prior to the collision. She believed that the motorcycle had come from somewhere behind her and that it must have come from a blind spot.
Ms Notarianni stated that she believed the bonnet of her car had just crossed into the southbound lane of Central Road when the motorcycle collided with her vehicle. She felt a collision with her driver door. She rated the impact as 8 out of 10, with 10 being the most severe. She stopped her vehicle right where the impact occurred. Both her vehicle’s front airbags deployed.
Ms Notarianni stated that, once she alighted from her vehicle, she observed quite severe damage to her driver door and passenger door. Both her vehicle and the motorcycle remained in situ after the impact until police arrived.
In response to an email from David Care dated 21 March 2020,[14] presumably referring to Ms Notarianni’s statement to NRMA’s investigator, she advised that just prior to the motor accident she was in the process of turning into the driveway of 17 Central Road with the intention of reversing out and parking on the road because she had previously scraped her vehicle when entering the driveway of her friend’s home.
[14] NRMA's documents at pages 21-22.

Accident scene photographs

In evidence, there are a series of photographs taken at the scene of the motor accident.[15]
[15] NRMA's documents at pages 802-815.
The photographs, taken at different angles, are not of high quality. Nevertheless, the photographs were of some assistance in better appreciating the accident scene and the position of Ms Notarianni’s vehicle at the point of impact with the motorcycle.
I reproduce four of the photographs below:
[image unable to render]
Photograph 1
[image unable to render]
Photograph 2
[image unable to render]
Photograph 3
[image unable to render]
Photograph 4
I will refer to the photographs numbered 1 to 4 above during the course of my consideration and findings in respect of the issue of contributory negligence.

The relevant legislation and legal principles

Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
Section 4.17(1) of the MAI Act provides that in assessing contributory negligence, regard must be had to the common law and the enacted law.
Section 4.17(3) of the MAI Act provides that the damages recoverable in respect of the motor accident are to be reduced on account of contributory negligence by such percentage as the court or Commission thinks just and equitable in the circumstances of the case unless s 4.17(4) requires that the damages be reduced by a fixed percentage. The circumstances specified in s 4.17(4) do not arise in this case. Section 4.17(3) further provides that the court or Commission must state the reasons for determining the particular percentage.
Section 3B(2)(a) of the Civil Liability Act 2002 (the CLA) provides that Divisions 1 - 4 and 8 of Part 1A (Negligence) of the CLA apply to motor accidents.
Section 5B(1) of the CLA provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and, the risk was not insignificant; and, in the circumstances, a reasonable person in the person’s position would have taken those precautions.
Section 5B(2) of the CLA provides that in determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider the following (amongst other relevant things):
(a)   the probability that the harm would occur if care were not taken;
(b)   the likely seriousness of the harm;
(c)   the burden of taking precautions to avoid the risk of harm, and
(d)   the social utility of the activity that creates the risk of harm.
Whether there is any contributory negligence requires, pursuant to s 5R of the CLA, a determination of whether a reasonable person in Mr McLean’s position, would have ridden his motorcycle where and how he did, knowing what he did or what he ought to have known. Section 5R of the CLA imposes an objective test.
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
Podrebersek v Australian Iron and Steel Pty Ltd[16] (Podrebersek), the High Court of Australia confirmed that the following considerations should be made when determining the apportionment of culpability between parties:
(a)   the culpability of both parties; that is, the degree of departure and standard of care of the reasonable man: Pennington v Norris[17] (Pennington);
(b)   the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd[18] (Stapley); Smith v McIntyre[19] (McIntyre) and Broadhurst v Millman[20] (Broadhurst);
(c)   the whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination, and
(d)   the significance of the various elements involved in such an examination will vary from case to case.
[16] Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; 59 ALR 529 at 532-533.
[17] Pennington v Norris (1956) 96 CLR 10 at 16).
[18] Stapley v Gypsum Mines Ltd [1953] AC 663 at 682.
[19] Smith v McIntyre [1958] Tas SR 36 at 42-49.
[20] Broadhurst v Millman [1976] VR 208 at 219.
Ultimately, the apportionment becomes a matter of impression having regard to the circumstances of the location, the amount of traffic, the skill of the driver, the condition of the vehicle and any loss of its control: Hallowell v The Nominal Defendant[21] (Hallowell).

Submissions

[21]Hallowell v The Nominal Defendant [1983] Qld R 266, per Jones J.

NRMA’s submissions

At the time of the motor accident, Mr McLean was wearing a helmet, shorts, a t-shirt and closed shoes. Mr McLean’s primary injuries were to his left knee and his fingers. Wearing leather pants and leather gloves would have afforded Mr McLean some protection. By failing to do so, he contributed to his injuries.
However, NRMA’s primary submission on contributory negligence was in respect of the circumstances of the motor accident. Mr McLean had Ms Notarianni’s vehicle under observation for quite some time (hundreds of metres) prior to the collision.
Mr McLean conceded that he saw Ms Notarianni’s vehicle indicate her intention to turn right well in advance of the intersection with Lindsay Street. Therefore, Mr McLean should have been aware that it was Ms Notarianni’s intention to turn right and he should have stopped or slowed to enable Ms Notarianni to execute her turn into her friend’s driveway on the opposite side of the road. Mr McLean’s failure to do so constituted a failure to take sufficient care of his safety. In failing to take proper care and assess the road conditions, Mr McLean contributed to the occurrence of the motor accident.

There were conflicting versions of the circumstances of the motor accident by Mr McLean and Ms Notarianni. There was a factual dispute as to whether Ms Notarianni just veered to the left or turned left but it would not affect the Commission’s decision. Mr McLean was aware of the conflicting versions but did not require Ms Notarianni’s attendance at the assessment conference for questioning in respect of the factual matters in dispute.
Mr McLean’s evidence was that he made an assumption that Ms Notarianni was going to continue going left in circumstances where she had activated her right indicator. If one were to reality test the issue of contributory negligence, one only needed to reverse the situation and put the motorcycle in front of Ms Notarianni’s vehicle and assume that Mr McLean sustained damages in a collision where he activated his indicator to turn right but in fact, turned left. It would be extraordinary if there were no finding of negligence in those circumstances. Plainly, both drivers were at fault.
The Commission should prefer the evidence of Ms Notarianni and assess Mr McLean’s contributory negligence at 20% as an appropriate apportionment of the respective acts of negligence of the parties.

Mr McLean’s submissions

On 30 December 2018, Mr McLean was riding his motorcycle in a northerly direction along Central Road, Unanderra. He was wearing an approved helmet, shorts, T-shirt and closed shoes.
Immediately before the motor accident, Mr McLean had been travelling behind Ms Notarianni’s vehicle for several hundred metres along Central Road and was, at least, a couple of car lengths behind her vehicle.
The motor accident occurred as Ms Notarianni and Mr McLean approached Lindsay Street where it intersected with Central Road to their left.
Ms Notarianni activated her vehicle’s right indicator just before Lindsay Street but then merged left into Lindsay Street without warning, completed a full U-turn in Lindsay Street and without stopping or any warning, pulled straight out in ahead of Mr McLean on Central Road resulting in Ms Notarianni’s vehicle being at right angles to Mr McLean’s motorcycle.
Ms Notarianni left Mr McLean with nowhere to go and despite applying his rear and front brakes, he was unable to avoid a collision and collided with the centre of the driver’s side of Ms Notarianni’s vehicle.
In some ways, Ms Notarianni’s version of the motor accident is probably better for Mr McLean’s argument against contributory negligence because she stated that she actually came to a stop, did not see any traffic coming towards her and commenced a right angle turn across Central Road. She should not have pulled back onto the road until she was certain it was clear. Mr McLean was entitled to expect that Ms Notarianni, having pulled over to the left, was going to comply with the road rules and not re-enter the roadway until it was clear.
If every motorist had to stop because some car on the side of the road had its blinker on, traffic would come to a stand-still. Motorists activate their indicators to indicate their intention to perform a manoeuvre on the roadway. However, a motorist has the entitlement to continue to drive on the roadway as if other road users are going to comply with the laws, unless there is some indication that they are not. A motorist pulled over on the side of the roadway would clearly convey a message to other motorists on the roadway that the former was going to comply with the laws and not come out onto the roadway until it was clear.
NRMA bears the onus of proof. The Commission would not be satisfied that there was sufficient time to come to a stop or to brake in such a way as to avoid the motor accident, given the unchallenged evidence that Mr McLean was travelling a couple of car lengths behind Ms Notarianni and given the speed at which Ms Notarianni carried out the manoeuvre. NRMA has failed to prove any contributory negligence.
The photographs taken at the accident scene indicate that Ms Notarianni was almost perpendicular in the mouth of Lindsay Street, which was consistent with Mr McLean’s evidence that she had gone into Lindsay Street, pulled her steering wheel to the right and attempted to make a U-turn. Ms Notarianni was never turning right; she was making a U-turn. The position of her vehicle as depicted in the photographs demonstrated that she was doing just that.
The circumstances of the motor accident did not give rise to any contributory negligence on the part of Mr McLean and should be assessed at 0%.

Consideration and findings

I will now consider the relevant evidence in this matter and apply the legislation and legal principles referred to above.
There are no documents from the NSW Police Force in evidence in respect of the motor accident. There is no evidence from any traffic accident reconstruction expert.
I am left to consider the conflicting evidence of Mr McLean and Ms Notarianni.
I reject NRMA’s submission that Mr McLean’s failure to wear leather pants and leather gloves contributed to his injuries. Both Mr McLean and Ms Notarianni rated the impact in the collision an 8 out of 10. Ms Notarianni also described it as “very severe”.[22] In such circumstances, I do not accept that Mr McLean’s failure to wear leather pants and leather gloves contributed to his injuries.
[22] NRMA’s documents at page 797 at [45].
Mr McLean’s oral evidence at the assessment conference was given in a forthright manner. I accept him as a witness of truth, whose evidence in respect of the circumstances of the motor accident has been consistent over a period of 3.5 years. He was visibly upset when recalling and recounting the events of 30 December 2018 but his recollection of those events remained consistent during questioning by NRMA’s counsel.
I reject NRMA’s criticism of Mr McLean for failing to require Ms Notarianni’s attendance at the assessment conference for questioning in respect of the factual matters he knew were in dispute. Ms Notarianni’s detailed statement to NRMA’s investigator was in evidence. I draw no adverse inference in respect of the forensic decision by Mr McLean’s legal representatives not to require Ms Notarianni’s attendance for questioning.
The unchallenged evidence was that the intersection of Central Road and Lindsay Street, Unanderra was situated in a residential area. Both roadways have a sealed surface with one lane in each direction. Central Road is divided by double lines. At the time of the motor accident, the weather was fine and the road surface was dry.
Mr McLean believed that the speed limit at the site of the motor accident was 50km/h.[23] However, whilst she stated that she was familiar with Central Road because her friend resided there, Ms Notarianni was uncertain whether the speed limit was 50km/h or 70km/h.[24]
[23] McLean's documents at page 26 at [18].
[24] NRMA's documents at page 14 at [30].
The unchallenged evidence was that, at all material times on 30 December 2018, Ms Notarianni’s vehicle was travelling in a northerly direction along Central Road and that Mr McLean’s motorcycle had been travelling behind her at a distance of about 1.5 to 2 car lengths for about 200m in the lead-up to the motor accident.
Ms Notarianni’s evidence was that, as she approached the intersection with Lindsay Street, she activated her right indicator with the intention of crossing the southbound lane to enter the driveway of number 17 Central Road. She estimated that her indicator had been activated for about 30 seconds as she approached Lindsay Street. Mr McLean’s evidence was that he had seen the right indicator but that it had only been activated for more like 10 seconds. Nothing of consequence arises as a result of this inconsistency as Mr McLean acknowledged that he had observed the activated right indicator.
Ms Notarianni’s evidence was that, just prior to reaching Lindsay Street, she moved to the left slightly and was still on Central Road but did not indicate left. She came to a stop. Performed all her mirror checks, looked over her shoulder and did not see any traffic coming towards her. She then commenced a right angle turn across Central Road towards the driveway of number 15 Central Road. She did not see or hear the motorcycle prior to the collision. She believed that the motorcycle had come from somewhere behind her and that it must have come from a blind spot.
Mr McLean’s evidence was that Ms Notarianni’s vehicle turned “hard left” into Lindsay Street and without stopping came straight back out into Central Road. When he observed Ms Notarianni’s vehicle turn left into Lindsay Street, he slowed down and as soon as she had turned left he picked up speed again and estimated that he was doing between 45km/h and 50km/h when she came back out onto Central Road. She had left him “with nowhere to go”.[25]
[25] McLean's documents at page 27 at [24].
Mr McLean’s evidence in respect of the manoeuvre performed by Ms Notarianni is more consistent with the unchallenged evidence that he was 1.5 to 2 car lengths behind her at all material times. It makes her evidence that she had the time to come to a stop, perform all her mirror checks, look over her shoulder and proceed back onto Central Road highly improbable. Further, the photographs taken at the site of the motor accident, even allowing for angle distortions in the photography, did not support that she had moved only slightly to the left.
Again, allowing for angle distortions in the photography, I find that the photographs taken at the site of the motor accident supported Mr McLean’s evidence that Ms Notarianni was attempting a U-turn rather than attempting to enter the driveway of 17 Central Road and then reverse out to park in front of her friend’s house at 15 Central Road. Ms Notarianni’s vehicle was almost perpendicular to the mouth of Lindsay Street, which was consistent with Mr McLean’s evidence that she had gone into Lindsay Street, pulled her steering wheel to the right and attempted to make a U-turn.
I am not satisfied that there was sufficient time for Mr McLean to come to a stop or to brake in such a way as to avoid the motor accident, given the unchallenged evidence that he was travelling 1.5 to 2 car lengths behind Ms Notarianni and given the nature of Ms Notarianni’s unexpected manoeuvre. I accept Mr McLean’s evidence that as a result of Ms Notarianni’s manoeuvre that she had left him “with nowhere to go”.[26]
[26] McLean's documents at page 27 at [24].
I am not persuaded by NRMA’s submission that Mr McLean’s assumption that Ms Notarianni was going to continue to travel left in Lindsay Street in circumstances where she had activated her right indicator amounted to contributory negligence on his part. In this regard, I agree with the submission made by counsel for Mr McLean that if a motorist pulled over on the side of the roadway or off the roadway, it would clearly convey a message to other motorists on the roadway that the former was going to comply with the laws and not re-enter the roadway until it was clear to do so.
It is for the reasons stated above I prefer the evidence of Mr McLean over that of Ms Notarianni in respect of the circumstances of the motor accident.
I have weighed up the respective acts of negligence of the parties involved and referred to above. I have taken into account the Podrebersek considerations in determining the apportionment of culpability between the parties.
I make the following findings in respect of the motor accident:
(a)   the intersection of Central Road and Lindsay Street, Unanderra are situated in a residential area;
(b)   Central Road and Lindsay Street, Unanderra have a sealed surface with one lane in each direction;
(c)   Central Road is divided by double lines;
(d)   at the time of the motor accident on 30 December 2018, the weather was fine and the road surface was dry;
(e)   at all material times on 30 December 2018, Ms Notarianni’s vehicle was travelling in a northerly direction along Central Road and Mr McLean’s motorcycle had been travelling behind her at a distance of about 1.5 to 2 car lengths for about 200m in the lead-up to the motor accident;
(f)    as Ms Notarianni approached the intersection with Lindsay Street, she activated her right indicator;
(g)   just prior to reaching Lindsay Street, Ms Notarianni moved to the left of Central Road and then turned “hard left” into Lindsay Street, turned her steering wheel to the right and without stopping or any warning came straight back out into Central Road;
(h)   Mr Mclean applied his front and rear brakes and was unable to avoid his motorcycle colliding with Ms Notarianni’s vehicle;
(i)    when Mr McLean observed Ms Notarianni’s vehicle turn left into Lindsay Street, he slowed down and as soon as she had turned left he picked up speed again and was travelling between 45km/h and 50km/h when she came back out onto Central Road;
(j)    at the time of the motor accident, Ms Notarianni was unaware of the presence of Mr McLean’s motorcycle on the roadway behind her, and
(k)   a reasonable person in Mr McLean’s position would not have had sufficient time to come to a stop or to brake in such a way as to avoid the motor accident, given the unchallenged evidence that he was travelling 1.5 to 2 car lengths behind Ms Notarianni and given the nature of Ms Notarianni’s unexpected manoeuvre.
I am not satisfied that NRMA has discharged its onus of proving any contributory negligence on the part of Mr McLean. I find that the circumstances of the motor accident did not give rise to any contributory negligence on the part of Mr McLean. Accordingly, I assess contributory negligence at 0%.

THE NATURE AND EXTENT OF THE INJURIES

Mr Brett McLean’s evidence

In evidence, there are signed statements by Mr McLean dated 1 November 2021[27] and 12 May 2022.[28] I will now refer to the relevant parts of those statements and his oral evidence at the assessment conference.
[27] McLean’s documents at pages 32-52.
[28] McLean’s documents at pages 53-55.
Mr McLean stated that he was one of four siblings. He was raised by his parents until the time they separated. At the time of the separation he was aged three or four years. Following their separation, he alternated living in the homes of his mother and father until about June 2013.
Mr McLean stated that he changed primary schools a lot, which made it hard for him to keep friends. He only completed half of year 7 before dropping out of high school to care for his sick mother. He was only 14 years of age when he left school to become his mother’s carer. During the short time he was at high school, he was bullied by fellow students who called him dumb and picked on him because he was tall and because they thought he was ugly.
Mr McLean stated that, as a teenager, he drank a lot of alcohol and played video games to suppress his depression and anxiety. He smoked cigarettes and abused marijuana. Whilst a teenager, he performed ad hoc work on a tuna fishing boat, on which his brother was a head deckman, for about five years. He experienced two traumatic events whilst working at sea. On one occasion, they pulled up a life raft with two skeletons on board. On another occasion, they went to the assistance of a boat that had capsized but by the time they arrived, the skipper had lost his life. It took him a little while to get over those two events.
Mr McLean stated that, by about June 2013, he was unable to handle being his mother’s carer any longer. She abused alcohol and prescription medications. He moved in with his sister and later, with his father. He developed depression and anxiety whilst acting as his mother’s carer.
Mr McLean stated that in early 2013, his brother, Rod, attempted suicide in front of him. He was traumatised by it and became suicidal. In July 2013, his mother passed away. About one month later, his half-sister, Nicky, took her own life.
Mr McLean stated that, on 25 September 2013, he fell off his pushbike and sustained grazes and some lacerations to his head and experienced some pain in his right knee. His wounds were cleaned and sutured at Wollongong Hospital and his injuries resolved soon after the accident.
Mr McLean stated that, in about October 2015, he commenced full-time employment as a bar attendant/floor person at Dapto Leagues Club. He usually worked five to six days per week and continued in that employment until he resigned in June 2017.
Mr McLean stated that, in about August 2016, he dislocated his left thumb whilst holidaying in Cuba. On his return to Australia, he consulted Dr Croker, who referred him for an X-ray and ultrasound. He may have undergone some physiotherapy. He made a full recovery from the injury to his left thumb.
Mr McLean stated that at Christmas 2016 he suffered an episode of depression. In about January 2017, he experienced a meltdown at work and started crying in front of some colleagues because he was feeling depressed. He had ceased taking antidepressants about two weeks prior to that episode because he was feeling good. He consulted Dr Croker but by the time he saw her, he was feeling much better.
Mr McLean stated that, in January 2017, he strained his left ankle whilst skateboarding.
Mr McLean stated that, in early March 2017, he became depressed for about one week when his partner left him but they rekindled their relationship. In May 2017, his partner left him again and he became depressed. However, the break-up did not last long and they got back together.
Mr McLean stated that, after resigning from Dapto Leagues Club, he obtained full-time employment at Kembla Heights Bowling Club, working five days per week on morning and night shifts until about March 2018.
Mr McLean stated that, in about 2017, he also worked for Elleisha’s Property Service on a casual basis for a few months using a high pressure washer (a Gerni) and performing lawn mowing and general yard maintenance duties at $20 per hour.
Mr McLean stated that, in about April 2018, he obtained full-time employment as a trades assistant with a labour hire company, Allmens Industrial Services Pty Limited (Allmens), where he worked at the BlueScope Steel facility. He usually worked 24 hours per week and no less than 16 hours per week. However, sometimes he worked up to 32 hours per week. On limited occasions, he worked an eight hour week due to the unavailability of work. He was paid at the rate of $25.65 per ordinary hour and penalties for working over the weekend. He was employed by Allmens at the time of the motor accident.
Mr McLean stated that he was doing reasonably well until 23 July 2018 when he was involved in a minor motorcycle accident. A utility in front of him slammed on its brakes because a dog ran onto the road. His motorcycle struck the back of the utility and he sustained minor injuries to his left leg and left shoulder. He consulted Dr Croker but did not require any further treatment.
Mr McLean stated that, in about October 2018, he underwent physiotherapy to treat aches and pains that he was experiencing at work, particularly in relation to his back.
Mr McLean stated that, prior to the motor accident, he was able to carry out his physical work duties with Allmens without restrictions or problems. At the time of the motor accident, he planned to continue working with Allmens and hoped to become a qualified labourer and then obtain a permanent full-time position as a labourer.
Mr McLean stated that, at about the time he ceased being his mother’s carer, he started consulting Ms Belinda Pisana of Belvista Psychological Services for treatment. He continued to consult Ms Pisana until about 2016 when he no longer required therapy. It took him some years to overcome his depressive symptoms and suicidal thoughts. By the time he completed his treatment with Ms Pisana, he was in a relationship, had obtained a motorcycle drivers licence, obtained full-time work and had travelled overseas. He was the happiest he had been in many years.
Mr McLean stated that, after he ceased being treated by Ms Pisana in 2016, he continued to consume alcohol and smoked marijuana but had reduced his intake. He enjoyed drinking alcohol and smoking marijuana.

Mr McLean stated that, whenever he experienced a bout of low mood, depression, anxiety or reduced confidence, he consulted his general practitioner, Dr Penny Croker. Dr Croker would prescribe him medication to treat his symptoms and on some occasions, recommended that he return to consult Ms Pisana. He never took up Dr Croker’s referrals to see a psychologist as he felt that he did not require treatment.
I have already summarised Mr McLean’s evidence in respect of the circumstances of the motor accident. Following the collision, Mr McLean stated that people at the scene moved him to the side of the road, where he began hyperventilating. Mr McLean’s brother and father attended the accident scene.
Mr McLean described the injuries he sustained in the motor accident as follows:
(a)   compound fracture of the left index finger;
(b)   fracture of the fifth left metacarpal;
(c)   injury to the left hand;
(d)   fractured left patella;
(e)   injury to the right thumb;
(f)    injury to the lower back;
(g)   injury to the right foot (resolved);
(h)   secondary injury to the right knee;
(i)    secondary injury to the lower back;
(j)    scarring to the left knee, left leg, left calf, left hand and left index finger;
(k)   bruises and abrasions (resolved), and
(l)    shock.[29]
[29] McLean's documents at page 41 at [123], [200] and [201].
Mr McLean also provided a comprehensive list of his motor accident related disabilities.[30]
[30] McLean's documents at pages 41-43 at [124] and at pages 47-52 and pages 54-55.
Mr McLean stated that he was conveyed by ambulance to Wollongong Hospital. He recalled being given morphine at the hospital to ease his pain. He experienced a lot of pain in his left hand, right thumb, left knee and left shin. He underwent several scans and was informed by hospital staff that he had sustained a fracture of his left knee and multiple fractures in his left hand. On 31 December 2018, he underwent a surgical procedure to insert two pins in his left index finger. He was discharged from Wollongong Hospital on 1 January 2019 with a knee brace and splint around his left hand.
Mr McLean stated that he returned to Wollongong Hospital for a review with the surgeon who operated on him and for physiotherapy to his left knee and left hand as an outpatient. After being discharged from the care of Wollongong Hospital, he came under the care of Dr Croker. He remained under the care of Dr Croker for about nine months before consulting another general practitioner, Dr Sam Wise on
1 October 2019. He remains under the care of Dr Wise.
Mr McLean stated that he underwent treatment at South Coast Hand Therapy between August and October 2019.
Mr McLean stated that, following the motor accident, NRMA engaged a rehabilitation company, Benchmark Rehabilitation, to assist with his recovery. Benchmark arranged for him to undergo physiotherapy and hydrotherapy at Guardian Exercise Rehabilitation, where he was also taught land-based and pool based strengthening exercises to enable him to carry out those exercises on his own and in his own time. In addition, he had attended the gym and pool to undertake those exercises.
Mr McLean stated that, in about May 2020, he commenced physiotherapy at Unanderra Physiotherapy and undertook about 10 sessions at that practice.
Mr McLean stated that, due to the psychological reaction he experienced following the motor accident, Dr Croker referred him back to Ms Pisana for treatment. He has undergone many sessions of psychological treatment with Ms Pisana.
Mr McLean stated that he was also referred to consult a psychiatrist, Dr Wael Wahaib, of Shellharbour Psychological Medicine. He initially consulted Dr Wahaib on a monthly basis but now consults him every three to six months. He has been on various antidepressants on the recommendation of Dr Wahaib.
Mr McLean stated that, despite the psychological treatment he had been undergoing, his psychological injuries deteriorated. As a result, Dr Wahaib recommended that he try transcranial magnetic stimulation (TMS therapy). However, it was not approved by NRMA. The deterioration of his psychological condition continued and he was admitted to South Coast Private Hospital on 4 November 2019, where he was treated in respect of flashbacks, nightmares, distressing dreams, avoidance behaviour, sleep disturbance, anxiety and depression. He found the treatment helpful. He was discharged on 11 November 2019.
Mr McLean stated that, on 12 August 2020, he commenced a 12 week day program at South Coast Private Hospital to provide him with extra psychological support.
Mr McLean stated that, on 7 August 2020 and 3 September 2020, he consulted Dr Aziz Bhimain, orthopaedic surgeon in respect of his left knee. Dr Bihmain referred him for an injection into the joint of his left knee, a Doppler ultrasound of his left leg and to a vascular surgeon and pain specialist, Dr Guy Bashford. However, as NRMA refused to fund such referrals, he did not proceed with Dr Bihmain’s recommendations.
Mr McLean stated that, in about December 2020, his psychological condition deteriorated and he participated in another program at South Coast Private Hospital. He completed about 20 sessions. He found the treatment very helpful.
Mr McLean stated that, on 17 February 2021, he commenced further treatment by way of physiotherapy and acupuncture at Physical Therapy in Wollongong. He found the treatment helpful.
Mr McLean stated that, despite all the hydrotherapy and physiotherapy he underwent, he continued to experience a lot of problems with his left hand and he was referred to South Coast Hand Therapy, where he recommenced treatment on 12 August 2021.
Mr McLean stated that he attended Compass Lifestyle Clinic in Sydney and was prescribed a bottle of cannabidiol oil (CBD) and a bottle of CBD with tetrahydrocannabinol (THC). He underwent a few follow-up sessions with Compass Lifestyle Clinic over the telephone but no longer takes CBD because it is so expensive.
Mr McLean stated that since the motor accident, he has resorted to smoking more marijuana and drinking a lot more alcohol. He finds that it helps ease the pain and forget about what is happening and what the motor accident has taken away from him. He experiences periods where he stops drinking alcohol and smoking marijuana but when his anxiety and mood is low, he relies on them to suppress his feelings.
Mr McLean stated that his partner of four years left him when he was admitted to South Coast Private Hospital.
Mr McLean stated that Dr Wise referred him to a pain management specialist at Effective Pain Solutions due to the ongoing problems experienced with his left knee and left hand. The initial session took place on 26 November 2021. During one session, he heard a motorcycle and suffered a panic attack for about 60 minutes. It took the psychologist, Mr John Littleton, about 15 minutes to calm him down. Talking about the motor accident and the damage it caused him results in significant distress and flashbacks. He only attended a few sessions of the program because the facilitator thought that he was incapable of continuing with it. However, he did have the benefit of being shown a number of activities to assist in strengthening his left knee and lower limbs and he continues to perform those exercises.
Mr McLean stated that he continues to consult Ms Pisana on a monthly basis and Dr Wahaib every three to six months for review and the renewal of prescriptions.
Mr McLean stated that, on most nights, he consumes four beers and two wines or four to five glasses of rum with coke. He smokes two joints of cannabis T25 or T50 each day, one joint in the morning and one joint before bed.
Mr McLean stated that he continues to suffer from constant bilateral knee pain and restricted movement in his knees. The pain in his left knee is worse than the right knee. He continues to suffer from muscle spasms and twitches around the left knee and it feels as though it is going to give way. On occasions, his left knee shakes uncontrollably.
Mr McLean stated that he continues to suffer almost constant pain in his left index finger. He experiences difficulties bending it. Often, it goes numb and he experiences a sensation of pins and needles. The finger is now sensitive to touch and sensitive to temperature. He continues to suffer from daily pain in his left fifth metacarpal. Since the motor accident, he has struggled to use his left hand much and has relied on his right arm and right hand a lot more than previously. As a result, he has developed bursitis in his right shoulder resulting in pain and restriction. He also experiences pain and discomfort in his right thumb.
Mr McLean stated that he continues to suffer lower back pain due to his altered gait.
Mr McLean stated that, in respect of his emotional condition, he feels hopeless and helpless. On some days, he struggles to get out of bed. He has done his best to move on from the motor accident. However, he continues to suffer from pain and discomfort each day because of someone else’s stupidity and that makes it very hard for him to forget and move on with his life. He worries about what the future holds for him. He feels like a failure. He still relies on his father to take him to and from places, including medical appointments. He feels like he has lost his independence. Most days, he sits at home and does nothing to pass the time.
In his oral evidence at the assessment conference, Mr McLean conceded that he was still experiencing some psychological symptoms at the time of the motor accident but that they were not significant. He also conceded that at about the time of the motor accident he was still smoking marijuana and drinking excessive amounts of alcohol. He denied that it affected his work at Allmens because he did not smoke marijuana or drink alcohol during the day. He acknowledged that he had received medical advice that his alcohol consumption prior to the motor accident was at dangerous levels and that it was affecting his cardiomyopathy.
After having his attention drawn to entries by Dr Croker in the Crown Medical Centre Figtree clinical records on 21 February 2018 and 20 March 2018 at the assessment conference, Mr McLean conceded that he was struggling psychologically at about that time but felt that life was good and that he was moving forward, in that, he was doing a lot better than he had been. However, such deterioration in his psychological condition did not continue up until the motor accident. He maintained that position even after his attention had been drawn to an entry in the clinical records dated 15 October 2018, where it was recorded that he had suffered a bit of a meltdown because of arguments with his father, sister and partner. He denied that he had experienced a bit of a meltdown but accepted that he was stressed.
At the assessment conference, Mr McLean confirmed that he had consulted Dr Croker on 8 October 2018 in respect of aches in his shoulders, knees and back related to work and that he was provided with a care plan. He also complained of erectile dysfunction, which was causing him a little bit of psychological stress and some stress with his partner because of it.
At the assessment conference, Mr McLean denied that he had been overstating the situation at Allmens prior to the motor accident in terms of the number of shifts he was doing. He denied overstating his ability to carry out his work at Allmens in the lead-up to the motor accident. He agreed that he was allocated limited shifts at Allmens. He denied struggling with the nature of his duties at Allmens.
At the assessment conference, Mr McLean confirmed that he was right-hand dominant. He lived with his father and they now shared the domestic activities. Since the motor accident, he has managed to get back to mowing the lawns, with some difficulty.
At the assessment conference, Mr McLean denied that a large part of the programs in which he took part at South Coast Private Hospital focused on weaning him off his substance abuse issues.
At the assessment conference, Mr McLean confirmed that he was no longer taking any pain relieving medication, antidepressants or psychotropic medication. He now only takes medical marijuana. He smokes half a joint in the morning and a joint at night. He finds that the marijuana calms him down, helps him sleep and helps with the aches and pains. He has not looked into whether taking medical marijuana would affect him at work. Since the motor accident, he has had a problem being around other people and gets nervous. He did not have that problem before. Mr McLean agreed that no one in the Effective Pain Solutions program recommended that he use marijuana but his psychologist and psychiatrist have.
At the assessment conference, Mr McLean stated that he had thought about re-entering the workforce. However, prior to doing so he needed to “better” his mind and “better” himself. He would like to retrain but was not sure of what sort of work he would be able to do but knew that he would not be able to go back to labouring. He used to be good at using flight simulators. At the suggestion of his brother, he would like to obtain a drone licence to become a drone technician for which he would need to undertake a 12 week TAFE NSW course. As a drone technician he could be contracted to take photographs of properties up for sale for inspection purposes and inspect powerlines. The attraction of being a drone technician is that he could work by himself and that it would be really good for him.
At the assessment conference, Mr McLean stated that from a physical point of view he did not believe that he is capable of a full-time or part-time sedentary hospitality role and that from a psychological perspective he would not be capable of such work because he does not trust people any more. Mr McLean did not agree that it would be beneficial for him from a psychological point of view to get back into the workforce because he is scared all the time. He would be prepared to take psychotropic medication if it were to assist him to get back to work but he does not like taking tablets because he saw what happened to his mother when she abused medication.
At the assessment conference, counsel for NRMA requested Mr McLean to advise of his ability to perform the full-time occupations assessed as suitable for him in the Vocational Capacity Assessment dated 22 November 2021 and Mr McLean responded as follows:
(a)   physically, he would be able to carry out the duties of a concierge or information officer but psychologically, he could not;
(b)   physically, he would be able to carry out the duties of an alarm, security or surveillance monitor but psychologically, he could not;
(c)   physically, he would be able to carry out the duties of a call contact centre operator but psychologically, he could not, and
(d)   physically, he would be able to carry out the duties of a ticket collector or usher but psychologically, he could not.

The evidence of the treatment providers

Pre-accident medical history

In evidence there are Mr McLean’s clinical records produced by Ms Belinda Pisana, clinical and health psychologist, of Belvista Consulting Service.[31] The first consultation entered in the clinical records was dated 18 June 2013 and the last consultation entered in the clinical records was dated 29 March 2022.
[31] McLean's documents at pages 1,633-1,777.
In the first entry in the Belvista Consulting Service clinical records on 18 June 2013,[32] Ms Pisana obtained a history from Mr McLean that was, in the main, consistent with his evidence to that point in time. Ms Pisana recorded the presenting issue as a fear of never being employed because he had no work history and had been his mother’s full-time carer from the age of 14 to the present time. A further issue was the death of his 17 year old dog the previous year. Mr McLean complained of being stressed by Centrelink’s job seeking requirements and reported that he was desperate to work, have an income and make a life for himself. Ms Pisana recorded that Mr McLean’s goals for therapy appeared unclear but that he wanted to make a plan for his life.
[32] McLean's documents at pages 1,763-1,764.
The Belvista Consulting Service clinical records disclosed that Mr McLean underwent eight consultations with Ms Pisana between 18 June 2013 and 21 November 2013. The clinical records disclosed discussions about the management of Mr McLean’s anxiety; his suicidal ideation; striving to be a better person; having genuine and close friends; maintaining the safety and security of his loved ones; leading a stress-free life; repaying favours; not being indebted to others; being ambitious and hard-working; having an exciting life; showing respect to parents and elders; managing things; problem-solving; and overcoming social anxiety. Ms Pisana identified Mr McLean’s barriers as being low self-esteem, low self-confidence and negative self-talk. Mr McLean reported to Ms Pisana that he had significantly reduced his cannabis use from around 20 to 30 cones per day to 3 or 4 cones per day. He believed that cannabis made him more relaxed and enabled him to talk to others more easily.
The Belvista Consulting Service clinical records disclosed that Mr McLean underwent nine consultations with Ms Pisana between 16 January 2014 and 25 November 2014. The clinical records disclosed a focus on anxiety management, relaxation training and job seeking. Ms Pisana identified that Mr McLean continued to ruminate on what he had missed out on by caring for his mother. Mr McLean reported to Ms Pisana that he had multiple stressors in his personal life, mainly involving family issues. There was a reference to a consultation with a psychiatrist, Dr Pai, who recommended that he consult someone about anxiety.
The Belvista Consulting Service clinical records disclosed that Mr McLean underwent seven consultations with Ms Pisana between 6 January 2015 and 13 October 2015. The clinical records disclosed Mr McLean’s ongoing stress and anxiety in respect of job searching and about driving. A plan was devised to focus on him identifying things that assisted him to manage his stress in order to achieve his goals. On 24 March 2015, Mr McLean reported that his mother had died two weeks previously. Ms Pisana conducted grief counselling sessions with him. On 7 May 2015, Mr McLean reported that his sister died on 23 April 2015 of an accidental overdose and that he was feeling confused and angry about his sister’s choices that resulted in her death. On
21 May 2015, Mr McLean reported increased agitation and experiencing dreams about his mother. On the same date, he reported that he was feeling more confident and was socialising more. On 18 June 2015, he reported that he had been working as a volunteer at the Mount Kembla Bowling Club and was feeling more confident and was coping with difficult customers.
In evidence there are Mr McLean’s clinical records produced and printed by Crown Medical Centre Figtree on 14 November 2020.[33] At that medical centre, Mr McLean usually consulted Dr Penny Croker, general practitioner. The first consultation entered in the clinical records was dated 13 January 2016 and the last consultation entered in the clinical records was dated 10 September 2019.
[33] McLean's documents at pages 266-764.
In an entry in the Crown Medical Centre Figtree clinical records dated
[34] McLean's documents at pages 268-269.
13 January 2016,[34] Dr Croker recorded that Mr McLean had recently started a new job as a barman at Dapto Leagues Club; had not been eating well for three months; was eating meat pies and chocolate milk; struggled to eat a salad sandwich; was always thirsty; suffered from constant sweating at work or when stressed out; was not sleeping well, in that, he woke frequently; was anxious; was not taking any regular medication; smoked 15 cigarettes a day; consumed half a bottle of rum three nights per week; and lived with his father and sister. Dr Croker advised Mr McLean to moderate his consumption of alcohol, stop smoking and improve his diet. She also recommended that he consider a referral to a psychologist.

In an entry in the Crown Medical Centre Figtree clinical records dated
[35] McLean's documents at page 270-271.
10 February 2016, Dr Croker queried whether Mr McLean’s recent symptoms could be due to heart disease and referred him to Dr Divina Brillante, cardiologist.[35]
In an entry in the Crown Medical Centre Figtree clinical records dated
[36] McLean's documents at page 272.
25 February 2016, Dr Simon Leslie recorded that Mr McLean had alcoholic cardiomyopathy as a result of binge drinking, counselled him in relation to the same and advised him to stop smoking. Dr Leslie also recorded that Mr McLean was doing very well in his new job and had been acknowledged as “best new employee”. He recorded that Mr McLean had a knack for social interaction with club guests.[36]
In an entry in the Crown Medical Centre Figtree clinical records dated 14 May 2016, Dr Zoe Shepherd recorded that Mr McLean was very upset, tearful and shaking; he came home from work early the previous night; and did not go into work today. She recorded long-standing anxiety and depression that had been worsening for weeks/months since the deaths of his mother and sister. Dr Shepherd noted that Mr McLean worked at the Dapto Leagues Club; struggled with the public, became overwhelmed; and yesterday, experienced a panic attack. Mr McLean reported that he felt useless and often thought about suicide but would not act on those thoughts. Dr Shepherd prescribed him a short course of Diazepam and advised him to remain off alcohol.[37]
[37] McLean's documents at pages 273-274.
In an entry in the Crown Medical Centre Figtree clinical records dated 16 May 2016, Dr Croker recorded that Mr McLean had become socially anxious during the period he acted as a carer for his mother and that he had consulted a psychologist for a period of time for depression. The current issue was not so much depression as anxiety that was controlling his life and on occasions, causing him to feel suicidal. He became anxious before work. At work, he had to speak to a lot of people. He had been invited out by work colleagues and went out with them once but got very drunk and was asked to leave the club. He used alcohol to treat his social anxiety. He felt different from all his work colleagues because many had wives, children and a house. He complained of not sleeping. He drank alcohol when not working and still believed that he had a problem in that regard. Dr Croker advised Mr McLean to continue medicating with Valium and prescribed Mirtazapine 15mg tablets to be taken once each evening. Dr Croker diagnosed him with anxiety/depression.[38]
[38] McLean's documents at page 274.
In an entry in the Crown Medical Centre Figtree clinical records dated 19 May 2016, Dr Croker recorded that Mr McLean slept very well since taking Mirtazapine 15mg tablets but was still “drinking and smoking dope after work”.[39] She also noted that Mr McLean was not allowing himself positive thoughts and always thought of himself as a loser. Dr Croker referred him to Ms Pisana.
[39] McLean's documents at page 275.
The Belvista Consulting Service clinical records disclosed that Mr McLean underwent two consultations with Ms Pisana in 2016. On 28 June 2016, Mr McLean reported his intention to travel to America in August 2016 and wanting to work on his social anxiety prior to departure. He reported that he had reduced his alcohol intake; had purchased a motorcycle; and was working at Dapto Leagues Club. He was aware that he had made substantial progress but continued to experience anxiety about relationships at work with some customers. On 11 July 2016, Mr McLean reported that he had made new friends at work and that he had overcome much of his social anxiety. However, he still felt that, sometimes, he could not talk to people at work because of the sports they were interested in. He reported being easily frustrated and angry if he felt that he was being undermined at work.
In an entry in the Crown Medical Centre Figtree clinical records dated
[40] McLean's documents at page 278.
17 September 2016, Dr Croker recorded that Mr McLean had experienced an “awesome holiday”[40] in Cuba. At the consultation, he raised the issue of medical marijuana to treat his anxiety. Dr Croker prescribed Mirtazapine 15mg tablets and Diazepam 2mg tablets.
In an entry in the Crown Medical Centre Figtree clinical records dated
[41] McLean's documents at pages 280-281.
12 January 2017, Dr Croker recorded that Mr McLean had experienced a meltdown at work in the previous week, cried in front of staff saying he was depressed and had to leave. He had stopped taking antidepressant medication for about two weeks because he thought that everything was good but became very down and depressed. He reported erectile dysfunction over the previous two weeks. He reported that he had been drinking heavily since Christmas. Dr Croker noted a long discussion that recommended that he needed to take his medication and undergo counselling if he was stressed rather than stop taking medication and start drinking.[41]
The Belvista Consulting Service clinical records disclosed that Mr McLean consulted Ms Pisana on 10 May 2017 concerned about his girlfriend’s violent behaviour towards him as it was impacting on his work. She had threatened to kill him and he wanted her to seek assistance because he loved her and did not want to break up with her.[42]
[42] McLean's documents at page 1,735.
In an entry in the Crown Medical Centre Figtree clinical records dated 11 July 2017, Dr Croker recorded that Mr McLean had a new job at Kembla Heights Bowling Club but was struggling because he required many new skills. As he had left school at 13 years of age, he was unable to do the necessary mathematics at work.[43]
[43] McLean's documents at page 286.
In an entry in the Crown Medical Centre Figtree clinical records dated
[44] McLean's documents at pages 289-290.
6 September 2017, Dr Croker recorded that Mr McLean complained of intermittent erectile dysfunction and chest pain. She recorded that, after being “messed around with shifts”, Mr McLean had sent his boss at Kembla Heights Bowling Club an abusive message which caused Mr McLean anxiety. He was earning less than he was earning at Dapto Leagues Club. Some customers were abusive and threatening when he suggested they have no more alcohol. He did not want to consult a psychologist because he felt “OK” and he had stopped taking Mirtazapine. Dr Croker provided supportive counselling and discussed controlling his alcohol intake and improving his diet. However, Mr McLean did not want to stop drinking alcohol but was prepared to decrease his intake.[44]
In an entry in the Crown Medical Centre Figtree clinical records dated
[45] McLean's documents at pages 291-292.
14 November 2017, Dr Croker recorded that Mr McLean was trying to obtain work in the construction industry and had worked with a contractor on the previous day at the rate of $30 per hour.[45]
In an entry in the Crown Medical Centre Figtree clinical records dated 7 February 2018, Dr Leslie recorded that Mr McLean was a bit unsettled with hospitality work and was thinking of becoming a hospital wardsman. Mr McLean had decided to cease using cannabis.[46]
[46] McLean's documents at page 293.
In an entry in the Crown Medical Centre Figtree clinical records dated
[47] McLean's documents at page 294.
21 February 2018, Dr Croker referred to Mr McLean’s long-standing anxiety and depression that had been self-medicated with heavy alcohol use. Dr Croker noted that alcohol and cigarettes were causing Mr McLean’s significant health problems, including, cardiomyopathy, dental issues, exacerbating his depression and erectile dysfunction. It also contributed to his current problem with his girlfriend. Dr Croker noted that Mr McLean was keen to address his issues and referred him to a psychologist, Mr Daniel Billingham. However, Dr Croker also noted that Mr McLean was still addicted to marijuana and that it would be difficult to get him to cease using marijuana, cigarettes and alcohol.[47]
In an entry in the Crown Medical Centre Figtree clinical records dated 20 March 2018, Dr Croker referred to an incident at the Kembla Heights Bowling Club on the previous Friday where Mr McLean’s girlfriend tried to stop a conversation with a club patron, who kept going on at her until she walked out. Mr McLean then yelled and swore at patrons. A board member heard Mr McLean, took his key away and informed him that he did not work there anymore. Mr McLean had been feeling unwell and believed that it was due to him medicating with Champix. He was suffering from low self-esteem, confusion, poor concentration and some suicidal thoughts. Once he stopped taking Champix, he felt better.[48]
[48] McLean's documents at page 295.
In an entry in the Crown Medical Centre Figtree clinical records dated 24 April 2018, Dr Croker recorded that Mr McLean had obtained employment on contract with Allmens at the steelworks. She noted that on the previous day he had bumped his head because he was not used to wearing a hard hat, finished the shift but felt sore that night. On examination of Mr McLean’s neck, Dr Croker observed no tenderness and a full pain-free range of movement.[49]
[49] McLean's documents at page 296.
In an entry in the Crown Medical Centre Figtree clinical records dated 26 July 2018, Dr Croker recorded that, on 23 July 2018, Mr McLean had been involved in a motorcycle accident on the way home from work. A utility travelling in front of him stopped as a dog ran onto the road and Mr McLean’s motorcycle struck the back of the utility causing the motorcycle to roll onto his left leg and he injured his left shoulder. Mr McLean felt that he was improving, in that, his left thigh pain was decreasing and his left shoulder had recovered. On examination, Dr Croker observed a full range of motion in the shoulders, no pain with resisted abduction and a tender medial mid left thigh. Dr Croker also noted that Mr McLean was getting about four shifts of work per week and that he was not drinking as much alcohol.[50]
[50] McLean's documents at page 297.
In two entries in the Crown Medical Centre Figtree clinical records dated
[51] McLean's documents at page 301-302.
8 October 2018, it was recorded that Mr McLean requested referral to a physiotherapist as part of a new care plan. Dr Croker noted that the physiotherapy was to assist with aches related to work. Mr McLean’s father and girlfriend had been providing him with massages and his brother had been cracking his back. He had also tried a back inverter. In a discussion about work, Dr Croker recorded that Mr McLean enjoyed the camaraderie of working in the coke ovens. He was getting fitter and was able to do most of the work. He struggled with lifting wheelbarrows up and down steps whilst holding on to a guide rail. The reason for this consultation was stated to be erectile dysfunction and back pain.[51]
In an entry in the Crown Medical Centre Figtree clinical records dated 9 October 2018, it was recorded that Mr McLean requested a change to his care plan by adding chiropractic treatment to the plan.[52]
[52] McLean's documents at page 302.
In an entry in the Crown Medical Centre Figtree clinical records dated
[53] McLean's documents at page 302.
15 October 2018, Dr Croker recorded that Mr McLean was suffering stress as a result of arguments with his father and sister about comments made regarding his girlfriend. There had been a fight with his girlfriend and he had experienced a bit of a meltdown. Dr Croker noted that Mr McLean liked working in the coke ovens and that he got on well with the other workers.[53]
In an entry in the Crown Medical Centre Figtree clinical records dated
[54] McLean's documents at page 302-303.
28 December 2018, Dr Croker noted that Mr McLean was only working one day per week at BlueScope Steel and that he was not sure why. Mr McLean listed a few issues he had experienced with the job. The reason for the consultation was stated to be a foreign body in his right middle finger.[54]

Post-accident medical treatment

In evidence, there are Mr McLean’s clinical records produced by Wollongong Hospital.[55] The clinical records disclosed that Mr McLean was initially assessed in the emergency department of Wollongong Hospital on 30 December 2018 and was later admitted as an in-patient.
[55] McLean's documents at pages 94-264.
On 30 December 2018, Mr McLean underwent X-rays of his left hand, right thumb, left knee, left ankle and a CT scan of his left knee by Dr Derek Glenn, radiologist at Wollongong Hospital.[56] In respect of the left hand X-ray, Dr Glenn reported a minimally displaced fracture of the distal end of the fifth metacarpal and a transverse fracture of the middle phalanx of the left index finger. In respect of the right thumb X-ray, Dr Glenn reported no bony abnormality. In respect of the left knee X-ray, Dr Glenn reported a small effusion in the suprapatellar bursa; evidence of tiny bony fragments over the anterior surface of the patella and queried trauma and foreign bodies. In respect of the left ankle X-ray, Dr Glenn reported no effusion or fracture. In respect of the left knee CT scan, Dr Glenn reported an effusion in the suprapatellar bursa and fragments of bone anterior to the patella without definite fractures demonstrated within the knee joint itself.
[56] McLean's documents at pages 648-654.
The Wollongong Hospital clinical records recorded Mr McLean’s complaints as pain in the left hand, left index finger, right thumb, left knee and left shin. The clinical records also noted that Mr McLean had been given 7.5mg of morphine in the ambulance on the way to the hospital.[57]
[57] McLean's documents at page 636.
On 31 December 2018, Mr McLean underwent a washout, debridement and closure of a traumatic wound to the left knee as well as a washout, debridement, open reduction and K-wire affixation of the open fractured left index finger middle phalanx at Wollongong Hospital.[58]
[58] McLean's documents at pages 645-647.
Contrary to Mr McLean’s evidence, the Wollongong Hospital clinical records recorded that he was discharged as an in-patient on 1 January 2019. Following his discharge from Wollongong Hospital he returned as an outpatient for review from time to time over the following months and for hand therapy and physiotherapy to his left knee.
On 2 January 2019, Mr McLean consulted Dr Croker informing her of the motor accident on 30 December 2018, where he had sustained a fractured left knee and fractured left index finger. The left knee had been debrided and the left index finger had been wired. Dr Croker re-dressed the left knee dressing and prescribed antibiotics.[59]
[59] McLean's documents at page 303-304.
On 4 January 2019, Mr McLean consulted Dr Croker advising that he was very stressed about the motor accident and that he wakes through the night seeing the crash and seeing himself bleeding. Dr Croker advised that his reaction was normal at that stage and that he should not dwell on stresses. She prescribed Targin 5mg tablets for his pain.[60]
[60] McLean's documents at page 304.
On 29 January 2019, Mr McLean underwent X-rays of his left index finger and left knee by Dr Glenn. In respect of the left index finger, Dr Glenn reported a middle phalanx fracture transfixed with K-wires with good alignment but that bony union had not yet occurred. In respect of the left knee, Dr Glenn reported the presence of a small effusion in the suprapatellar bursa, soft tissue induration over the patella but no fractures demonstrated.[61]
[61] McLean's documents at pages 686-687.
On 29 January 2019, Mr McLean underwent a left lower limb venous doppler ultrasound by Mr Ryan Anderson, sonographer and the outcome was reported by Dr Glenn as having no features of deep venous thrombosis.[62]
[62] McLean's documents at page 685.
On 1 February 2019, Mr McLean consulted Dr Croker complaining of ongoing pain in his left index finger and stiffness in his left leg. Dr Croker prescribed Targin 5mg tablets. Diazepam 5mg tablets were ceased. She also noted that the Wollongong Hospital fracture clinic advised that it would be two weeks before the K-wire could be removed and that physiotherapy for the left hand would commence thereafter.[63]
[63] McLean's documents at page 305.
On 13 February 2019, Mr McLean consulted Dr Croker advising that the K-wire had been removed from his left index finger on the previous day but that the bones had not properly healed. Dr Croker advised him that it was important to stop smoking to assist with bone healing. She noted that Mr McLean advised that he had cut back smoking again from 20 cigarettes a day to 10 cigarettes a day but felt unable to stop because he was too emotional. He complained of increasing anger, irritability, depression and crying.[64]
[64] McLean's documents at page 306.
On 19 February 2019, Mr McLean consulted Dr Croker advising that he thought he was “going mental” from being stuck inside at home for so long and not talking to anyone. Mr McLean’s mates at BlueScope had not replied to his messages. The left knee and left index finger were “pissing him off”.[65] He was experiencing serious nightmares affecting his sleep pattern and he was snapping at others. He had no appetite and only wanted to eat junk food. When Dr Croker suggested he take antidepressant medication, he became angry and expressed the view that such medication made him worse and sick. He told Dr Croker that he was using marijuana, that is, a few cones through the day and a few cones in the evening. It helps with his sleep and his mood. Dr Croker planned to refer Mr McLean to a psychiatrist and a psychologist. Dr Croker concluded the entry in the clinical records on 19 February 2019 as follows:
“Tried to discuss long-standing pattern of behaviour – problems at work, with family, friends, lack of insight into interactions, of not taking responsibility when thinks [sic-things] go wrong, self-medication with drugs and alcohol. He was quick to point out he is not drinking much, but he is using daily marijuana.”[66]
[65] McLean's documents at pages 306.
[66] McLean's documents at pages 306-307.
On 12 March 2019, Mr McLean consulted Ms Pisana and provided her with a history of the motor accident that was consistent with the evidence. He complained of being angry and irritable all the time, even towards his father and girlfriend. He complained of being unable to think clearly and experiencing difficulties with his memory. Ms Pisana recommended referral to a psychiatrist at South Coast Private Hospital given the level of distress Mr McLean was suffering and the possibility of in-patient treatment at that hospital in the future to stabilise his condition.[67]
[67] McLean's documents at page 1,734.
On 11 April 2019, Mr McLean first consulted Dr Wael Wahaib, senior consultant psychiatrist on the referral of Dr Croker. Dr Wahaib reported to Dr Croker that Mr McLean provided a history of low mood, disturbed sleep, nightmares, feeling on edge, frustration, anger, impulsivity and episodes of crying following the motor accident. Mr McLean advised that he continued to experience the motor accident in his mind on a daily basis. He had lost his self-esteem, confidence and job. He experienced physical limitations in his left hand and left knee. He was self-medicating with alcohol. Dr Wahaib diagnosed post-traumatic stress disorder and major depressive disorder. He suggested medicating with Mirtazapine 7.5mg soluble tablets and to continue with his psychologist.[68]
[68] McLean's documents at pages 694-695.
On 11 April 2019, Mr McLean consulted Ms Libby Eastment, Wollongong Hospital physiotherapist. Ms Eastment reported that Mr McLean continued to complain of left index finger end joint pain, especially with and after exercise, on resisted gripping or when bumped. Range of movement remained significantly reduced, 12° to 32°, compared with 0° to 70° in his right index finger end joint. She opined that the range of movement may improve slightly with ongoing effort on his part. However, X-rays indicated that the joint may continue to cause pain, which may increase if he returned to heavy lifting and repetitive gripping activities with that finger.[69]
[69] McLean's documents at page 693.

In accordance with my earlier findings, I am satisfied that Mr McLean’s social anxiety increased significantly as a result of the motor accident and is ongoing.
The assessment of non-economic loss damages is conducted according to the conventional common law principles of full compensation with the only restraint being the maximum amount of $605,000. The amount of damages for non-economic loss damages must be fair and reasonable compensation for the injuries received and the disabilities caused. I do not find NRMA’s assessment of non-economic loss damages to be fair and reasonable compensation in the circumstances of this case.
Mr McLean suffers from life-long disabilities which have significantly impacted and will continue to impact his ability to enjoy the activities of daily life. In such circumstances, Mr McLean is entitled to a significant award of damages for non-economic loss.
Accordingly, I assess Mr McLean’s fair and reasonable compensation for non-economic loss as $325,000.

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

The legislation and legal principles

In cases such as Medlin v State Government Insurance Commission[124] and Husher v Husher,[125] the High Court of Australia confirmed that the fundamental questions to be determined in a case such as this are whether Mr McLean has sustained a loss or diminution in his earning capacity and if so, whether that loss or diminution will result in economic loss.
[124] Medlin v State Government Insurance Commission [1995] HCA 5.
[125] Husher v Husher [1999] HCA 47.
Section 4.5(1)(a) of the MAI Act provides that damages may be awarded for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity.
In calculating any economic loss into the future, I must have regard to the provisions of s 4.7 of the MAI Act.
Section 4.7(1) of the MAI Act provides that damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based, accorded with the claimant’s most likely future circumstances but for the injury.
Section 4.7(2) of the MAI Act provides that the amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
Section 4.7(3) of the MAI Act provides that if an award for future economic loss is made, the court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
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%.
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)[126] is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine.
[126] Penrith City Council v Parks [2004] NSWCA 201.
There are three questions to be answered in assessing income loss:
(a)   what was Mr McLean’s income-earning capacity at the time of injury?
(b)   to what extent was it impaired by the injury?
(c)   to what extent was the impairment productive of income loss?

Submissions

NRMA’s submissions

Contrary to Mr McLean’s allegations, two days prior to the motor accident, Dr Croker recorded that Mr McLean was only receiving limited shifts at BlueScope Steel. He also experienced back pain associated with his work, which supported the proposition that ongoing employment at BlueScope Steel through Allmens was not a certainty.
Allmens records indicated that Mr McLean’s work hours were sporadic and that he worked, on average, 14 hours per week. There was nothing to suggest that Mr McLean attempted to increase his hours to supplement this income in the year preceding the motor accident. NRMA disputed that Mr McLean was ready, willing and able to work full-time hours. Such proposition did not take into account the struggles he had in each of his jobs, his patchy work history, his pre-existing psychological problems, his drug taking and his excessive consumption of alcohol.
There was nothing in the material from Allmens to suggest that there was an opportunity available for Mr McLean to progress to a full-time position.
Mr McLean’s claimed net weekly rate of income was entirely inconsistent with his pre-accident history of struggling with each of his jobs for social and physical reasons and being unable to secure stable consistent employment.
In respect of past economic loss, NRMA allowed $305.60 net per week, being Mr McLean’s assessed pre-injury average weekly earnings, from the date of the motor accident to date.
There was no dispute that Mr McLean is currently unfit to return to his pre-accident work as a trade assistant. However, NRMA disputed that, but for the motor accident, Mr McLean would have continued working as a trade assistant until he became a qualified labourer and would have continued with his work as a labourer whilst seeking advancements and promotions until his retirement age of 67 years.
NRMA also disputed the assertion that Mr McLean has no residual earning capacity. NRMA relied on the report of Mr Bryden-Brown and Professor Bright and the full-time vocational choices proposed therein for which Mr McLean is considered fit.
Although Dr Vickery considered Mr McLean psychologically restricted from work in June 2021, such restriction was expected for up to a further 12 months only. Dr Vickery also found that Mr McLean retained the capacity to work part-time.
Significantly, Professor Bright was of the opinion that, although the motor accident may have exacerbated Mr McLean’s pre-existing anxiety, there did not appear to be any reason why he could not consider a return to the workforce and that such a return may be beneficial in reconnecting with society and also distracting him from rumination.
Mr McLean’s asserted career progression should not be accepted as a probability having regard to his short and unstable employment history. Mr McLean’s most likely circumstances would have been to continue performing sporadic work as a trade assistant, working variable hours and accordingly, any future loss would be calculated against his assessed pre-injury average weekly earnings. At best, the Commission might allow for the possibility that Mr McLean might, at some point, secure occasional full-time work as a labourer.
Whilst Mr McLean’s treatment is ongoing, NRMA allowed $17,500 to reflect the loss of $175 net per week for a further two years with no reduction for vicissitudes. Such allowance adopted a baseline of $350 net per week and assumed a 50% capacity in accordance with the opinion of Dr Vickery and the recommendations of Mr Bryden-Brown and Professor Bright with respect to a short period of work hardening.
NRMA referred to and relied on the case of Zilio v Lane[127] (Zilio), which set out the relevant authorities in a scenario where there was a claimant who had a history of drug problems and a patchy employment history. Mr McLean’s past work capacity and past comorbidities have some work to do in the assessment of future economic loss.
[127] Zilio v Lane [2009] NSWDC 226 at [232] – [246].
NRMA referred to and relied on the case of Schneider v Smith & Anor[128] (Schneider), which deals with what a decision maker makes of a claimant’s drug addiction and the fact that someone may be dependent on drugs after the accident in circumstances where they may have been dependent on drugs before the accident. The case stands for the proposition that someone committing an illegal act by consuming illicit drugs by reason of the accident is not something that ought to be compensable.
[128] Schneider v Smith & Anor [2016] QSC 47 at [74] – [81].
Mr McLean’s evidence about taking medicinal marijuana is not developed in his medical case. The evidence is that, in the past, Mr McLean has had an addiction to marijuana and each time he has overcome that addiction, he returned to using marijuana.
An analysis of Mr McLean’s tax returns and wage records in the lead-up to the motor accident demonstrated very limited average weekly earnings.

Mr McLean’s submissions

Mr McLean did have an earning capacity at the time of the motor accident. It was one that was unlike most 37-year-olds. It was an earning capacity that was in the process of being developed. Mr McLean experienced unfortunate life circumstances. He left high school at the age of 14. He is dyslexic. After leaving school, he had the unenviable task of caring for his invalid mother for almost 20 years. During the time that he was caring for his mother, he was unable to do what most young people do, that is, get their first job and advance their employment prospects.
After Mr McLean ceased caring for his mother, he was confronted with her death and shortly afterwards, the suicide of his sister and his own mental health issues that arose whilst he was caring for his mother. He sought treatment for his condition between 2013 and 2016 so that he could get on with his life. By 2015, he obtained his first job. The work history demonstrated that he was able to perform full-time work and hold down jobs.
There was no denying that Mr McLean, being confronted with the stresses and strains of life with an eggshell emotional state, was going to experience difficulties that other people may more carefully be able to manage. However, there was nothing in the clinical records that showed that he was unable to work.
In 2017, Mr McLean was trying to get work in the construction industry and managed to do some work for a contractor for $30 per hour.
The hospitality industry did not work out for Mr McLean. Mr McLean’s most likely occupation but for the motor accident would have been one of a labourer. He loved the work in the coke ovens at BlueScope Steel. It was stress free work, in that, it did not involve any pressure from day to day. It was physical work and it made him feel good.
NRMA’s calculation of Mr McLean’s pre-accident weekly earnings should not be adopted for the purposes of calculating his claim for past economic loss damages. It was not a true reflection of his earnings with Allmens. Allmens’ calculation of Mr McLean’s average weekly earnings during the period of his employment was $569.78 gross,[129] which represented a baseline for the calculation of economic loss.
[129] NRMA's documents at page 791.
Mr McLean was ready, willing and able to work full-time hours if the work was available to him. He would most likely have received a pay rise as he gained experience. Further, had the availability of work remained as it was at the time of the motor accident with Allmens, Mr McLean would most likely have looked for other full-time work as a trade assistant/labourer and with the experience he had gained, would most likely have attracted a higher pay rate in a permanent full-time position earning $1,500 to $2,000 net per week.
Having regard to Mr McLean’s pre-accident employment intentions, he claimed a loss of $929 net per week from the date of the motor accident to date, based on earnings of $30 gross per hour for 38 hours per week, being $1,140 gross per week.
Mr McLean also claimed a loss of past superannuation entitlements on the net past loss of earnings at 9.5%.
In respect of future economic loss, but for the motor accident, Mr McLean would have continued with his pre-accident employment as a trade assistant until he became a qualified labourer and would have continued with his work as a labourer, whilst seeking advancements and promotions until his proposed retirement age of, at least, 67 years.
Given Mr McLean’s education and work experience, he is only suited for employment in manual type roles for which he is now unfit and accordingly, has no residual earning capacity.
Three of the four jobs proposed by Professor Bright in his vocational capacity report were immediately unsuitable because of the necessity to deal with the public.
Professor Bright’s opinion in respect of Mr McLean’s work capacity was contrary to that of the two psychiatrists, Dr Vickery and Dr Bertucen. Whilst there may be a physical capability on the part of Mr McLean to perform the sedentary jobs proposed by Professor Bright, one must ask, are such jobs available and if so, would they be given to someone with Mr McLean’s attributes? A person with dyslexia, difficulties dealing with people and with very limited schooling like Mr McLean is not going to get those jobs. Those jobs are likely to be given to someone with, at least, a School Certificate.
An award for future economic loss ought to be calculated on the basis that Mr McLean, but for the motor accident, would have obtained a higher paying labourer’s role and that his earning capacity has now been reduced to nil, as for all practical intents and purposes he is unemployable. In the alternative, at most, his earning capacity would be that of a modest part-time worker.
In respect of future economic loss, Mr McLean claimed $1,953.80 gross per week, being the full-time average weekly earnings for males in New South Wales and resulting in a net figure of $1,462.80 per week until retirement at the age of 67 years on the relevant table of multipliers.
Mr McLean claimed a loss of future superannuation entitlements on the calculated net loss of future earnings at 11%.
Under s 4.5(1)(b) of the MAI Act, Mr McLean sought to recover the cost of travel with respect to future treatment and in accordance with part 6 cl 33 of the Motor Accident Injuries Regulation 2017 (the Regulation), made a claim for such expenses at the cost of $0.66 per kilometre. Mr McLean claimed the sum of $5,000 as being a reasonable amount to compensate him for the cost of travelling to and from future medical appointments and travelling to and from a pharmacy to purchase medication.

Consideration and findings

Damages for past loss of earnings or loss of earning capacity

I am satisfied that, as a result of the injuries and restrictions I have found were caused by the motor accident, Mr McLean has sustained a loss or diminution in his earning capacity and that such loss or diminution has resulted in economic loss. The more complex task in this case lies in its calculation. It requires a careful analysis of Mr McLean’s income-earning capacity at the time of the motor accident; his extremely limited prior work history; his pre-existing psychological condition; his excessive consumption of alcohol; and his use of cannabis.
The unchallenged evidence is that Mr McLean cared for his ill mother from about the age of 14 years until about the age of 32 years, that is, until about June 2013. Mr McLean’s mother abused alcohol and prescription medication. Sometime during that period, Mr McLean had worked on a fishing boat for about five years with his brother, where he experienced the two traumatic events referred to in his evidence. Mr McLean’s evidence was that, during the period he cared for his mother, he drank alcohol to excess and abused marijuana.
The unchallenged evidence is that, at about the time he ceased caring for his mother, Mr McLean came under the care of Ms Pisana. Ms Pisana focused on anxiety management, relaxation training and job seeking. Ms Pisana’s clinical records noted that Mr McLean reported that his mother had died in March 2015 and that his sister had died on 23 April 2015. By about mid-2015, Mr McLean reported to Ms Pisana that he was feeling more confident and was socialising more. Ms Pisana’s clinical records made references to Mr McLean’s strong desire to secure paid employment and he did so between about October 2015 and the date of the motor accident.
The unchallenged evidence is that Mr McLean commenced work as a volunteer at the Mount Kembla Bowling Club in about mid-2015. He reported to Ms Pisana that he was feeling more confident and was coping with difficult customers.
Between 26 October 2015 and 30 June 2016, Mr McLean earned the sum of $21,606 gross ($19,215 net) in his full-time employment as a bar attendant/floor person at Dapto Leagues Club, being an average of $608 gross per week ($541 net per week).[130]
[130] McLean's documents at page 2,122.
Between 1 July 2016 and 23 June 2017, Mr McLean earned the sum of $28,127 gross ($24,899 net) in his full-time employment as a bar attendant/floor person at Dapto Leagues Club, being an average of $552 gross per week ($488 net per week).[131]
[131] McLean's documents at page 2,120.
Between 22 June 2017 and 17 April 2018, Mr McLean earned the sum of $14,223 gross ($13,154 net) in his employment with Kembla Heights Bowling Club, being an average of $331 gross per week ($305 net per week).[132] Sometime during this period, Mr McLean also worked for Elleisha’s Property Service performing lawn mowing and general yard maintenance duties at $20 per hour. However, there was no record of the income he earned in evidence with this employer.
[132] McLean's documents at page 2,119.
There was no dispute that, at the time of the motor accident, Mr McLean was employed as a casual trade assistant/labourer by Allmens at the BlueScope Steel facility in the coke ovens.
Documents from Allmens disclosed that Mr McLean’s first day of work at BlueScope Steel was 18 April 2018 and his last day of work was on 17 December 2018.[133] The documents disclosed that Mr McLean performed labouring duties, including shovelling, sweeping and hosing in the steel manufacturing industry in Port Kembla. Four sick days and one late arrival at work were recorded. The documents also disclosed that Mr McLean called in on 3 January 2019 advising that he had been involved in a motorcycle accident, broken his knee and would be out of work for six months.[134]
[133] NRMA’s documents at page 771.
[134] NRMA’s documents at page 772.
The unchallenged evidence is that Mr McLean has not worked since the motor accident.
There was a dispute about Mr McLean’s pre-injury average weekly earnings during the period he was employed by Allmens at the BlueScope Steel facility. NRMA assessed Mr McLean’s gross pre-injury average weekly earnings at Allmens as $305.60.[135] The Allmens documents disclosed that Mr McLean had worked an average of 14.6094 hours per week during his period of employment and calculated his pre-injury gross average weekly earnings as $569.78 gross per week over 32 pay weeks ($504.84 net per week).[136] I am not bound by NRMA’s assessment. I prefer and accept the Allmens’ calculation of Mr McLean’s pre-injury gross average weekly earnings during the period identified in the documents. I find that Mr McLean’s income-earning capacity at the time of the motor accident was, at least, $504.84 net per week.
[135] NRMA’s documents at page 80.
[136] NRMA’s documents at pages 771-772, 785 and 791.
Counsel for Mr McLean submitted that Mr McLean’s earning capacity was in the process of being developed at the time of the motor accident and as such, was unlike that of most other 37-year-olds because of his unfortunate life circumstances. Nevertheless, it is clear from the above analysis of Mr McLean’s taxation related records and wage records over the three years or so between October 2015 and the date of the motor accident, that he demonstrated very limited average weekly earnings.
I accept Mr McLean’s evidence that, by the time he commenced his casual employment with Allmens, he had reduced his consumption of alcohol and use of cannabis. I also accept Mr McLean’s evidence that, in more recent times, he has been taking prescribed medicinal cannabis. However, prior to the motor accident, the evidence demonstrated that his consumption of alcohol and use of cannabis waxed and waned over the years and was largely dependent on the stressors in his life at the time. In accordance with the authorities cited in Zilio, it is a factor I must take into account when considering the question of income loss and Mr McLean’s most likely future circumstances but for the injuries and resultant restrictions caused by the motor accident.

NRMA referred to and relied on the case of Schneider. I find Schneider of little assistance in this case because Mr McLean did not argue that his use or increased use of cannabis was a result of the motor accident and that its deleterious effects should be compensable.
The unchallenged evidence is that Mr McLean suffers from dyslexia. He left high school at about the age of 14 years and therefore, has had limited education. These are further factors I must take into account when considering the question of income loss and Mr McLean’s most likely future circumstances but for the injuries and resultant restrictions caused by the motor accident.
Before and after the motor accident Mr McLean reported being stressed because of interpersonal conflicts between himself, his father, his sister and his partner. I must also take into account Mr McLean’s pre-accident psychological condition when considering the question of income loss and his most likely future circumstances but for the injuries and resultant restrictions caused by the motor accident.
Mr McLean was socially anxious prior to the motor accident and such social anxiety and its effects were demonstrated during the time of his employment with Dapto Leagues Club and Mount Kembla Bowling Club. Further, the unchallenged evidence is that Mr McLean struggled with those parts of his duties that involved the financial aspects of those businesses. Employment in the hospitality industry was not a good fit for Mr McLean prior to the motor accident. Mr McLean’s social anxiety increased significantly as a result of the motor accident and is ongoing. I accept his evidence that he no longer trusts people. I find that the combination of Mr McLean’s motor accident related physical and psychological injuries and related disabilities render him unfit to return to employment in the hospitality industry.
There was no dispute that Mr McLean is currently unfit to return to his pre-accident duties as a trade assistant/labourer.
Mr McLean’s general practitioner has continued to certify him unfit for any type of work.
Dr Rosenthal opined that, in respect of his physical injuries, Mr McLean was unable to return to his pre-accident work as a trade assistant and that he was best suited to sedentary type duties. Dr Rosenthal opined that Mr McLean was restricted with prolonged standing, walking, squatting and kneeling. In terms of working in hospitality, it would depend on the type of work involved. Quite properly, Dr Rosenthal’s opinion did not take into account the psychological conditions suffered by Mr Mclean as a result of the motor accident.
Dr Vickery opined that there was some work ability in relation to part-time employment but that Mr McLean was restricted from work on psychiatric grounds, namely, his continuing post-traumatic stress disorder psychopathology, which was likely to persist for up to a further 12 months. However, the evidence is that Mr McLean’s psychological motor accident related symptoms have persisted beyond the forecast 12 month period.
Dr Bertucen opined that Mr McLean would find it difficult to function in most forms of employment which would require him to be punctual and possibly deal with members of the general public. However, he could potentially work part-time in his prospective occupation as a drone operator, possibly up to 15 or 20 hours per week. Dr Bertucen opined that Mr McLean had the current psychological capability to undergo study and retraining or suitable duties in an environment without contact with the general public. I am unconvinced by Dr Bertucen’s opinion that Mr McLean could potentially work part-time as a drone operator for the reasons I have set out below.
Professor Bright and Mr Bryden-Brown provided four job matches for Mr McLean, namely, a concierge/information officer, an alarm, security or surveillance monitor (with appropriate licensing), a call or contact centre operator and a ticket collector or usher. Whilst Mr McLean thought he would be able to perform the physical aspects of those duties on a full-time basis, he did not believe that he could cope psychologically.
The duties of a concierge/information officer may involve tasks that include dealing with the public about goods and services; responding to inquiries about problems and providing advice; recording information about inquiries and complaints; issuing relevant forms, information kits and brochures; and accessing and operating computer network systems, public address systems and paging systems.
I find that the duties of a concierge/information officer are not a suitable job match for Mr McLean due to his motor accident related psychological conditions and related restrictions. In particular, Mr McLean’s post-accident increased social anxiety and distrust of people make such work an unsuitable job match. In addition, Mr McLean’s low level of education, his dyslexia and limited work experience made this job match one based in theory and not in reality.
The duties of an alarm, security or surveillance monitor involve tasks that may include watching for irregularities on premises (fire hazards, malfunctions, leaking water pipes and unlocked doors); issuing security passes to authorised visitors and giving directions; monitoring alarms and contacting supervisors, police and fire brigades by radio or by telephone in the event of security breaches or emergencies; conducting investigations for clients and preparing evidence for court proceedings; and detecting and investigating theft and other unlawful acts carried out in retail establishments.
I find that the duties of an alarm, security or surveillance monitor are not a suitable job match for Mr McLean due to his motor accident related psychological conditions and related restrictions. In particular, Mr McLean’s post-accident increased social anxiety and distrust of people make such work an unsuitable job match. In addition, Mr McLean’s low level of education, his dyslexia and limited work experience made this job match one based in theory and not in reality.
The duties of a call or contact centre operator involve tasks that may include answering incoming calls, emails and messages; assisting customers with specific enquiries; identifying requirements and recording information into computer systems; listening to calls conducted by call centre operators and providing performance feedback; monitoring and timing calls; creating further interest in goods and services by offering customers more information about goods and inviting customers to use services on offer; updating databases to reflect changes to the status of customers and prospective customers; arranging the dispatch of goods, information kits and brochures to customers and interested parties; undertaking clerical duties such as faxing, filling out paperwork and liaising with other departments associated with completing the customer contact; and issuing invoices and receiving electronic payments for goods and services provided.
I find that the duties of a call or contact centre operator are not a suitable job match for Mr McLean due to his motor accident related psychological conditions and related restrictions. In particular, Mr McLean’s post-accident increased social anxiety and distrust of people make such work an unsuitable job match. In addition, Mr McLean’s low level of education, his dyslexia and limited work experience made this job match one based in theory and not in reality.
The duties of a ticket collector or usher involve tasks that may include preparing a venue for patrons and setting up merchandising displays; checking or collecting patrons’ tickets or admission passes; assisting patrons with special needs and ushering them to seats; dealing with late comers according to company policies and procedures; monitoring behaviour during performances and responding to and controlling potentially disruptive behaviour; distributing passes to patrons leaving at intervals or temporarily during performances; checking premises after performances, collecting lost property, turning off lights and locking up; selling programs, brochures or other products; routine stock control and cash handling procedures; and operate turnstiles at sporting or recreational venues.
I find that Mr McLean’s opinion that he could perform the full-time physical aspects of a ticket collector or usher rather optimistic as it clearly involves prolonged standing and walking. I find the physical aspects of the job on a full-time basis unsuitable. I also find that the duties of a ticket collector or usher are not a suitable job match for Mr McLean due to his motor accident related psychological conditions and related restrictions. In particular, Mr McLean’s post-accident increased social anxiety and distrust of people make such work an unsuitable job match. In addition, Mr McLean’s low level of education, his dyslexia and limited work experience made this job match one based in theory and not in reality.
I find Mr McLean’s belief that he may be able to work as a self-employed drone operator rather optimistic. It became clear during his oral evidence that he had not thoroughly researched what would be involved. There was no evidence of the potential income such work could generate. Whilst he believed that he would be good at operating drones and believed it to be work he could perform, he would still be required to interact with people. The work would be limited and I am not satisfied that it would be a realistic main income earning opportunity for him even if he were able to establish a foothold in obtaining such work. Nor am I satisfied that he could manage the physical and mental aspects of such work and the duties and responsibilities of a self-employed person due to his motor accident related injuries and disabilities.
I find that the combination of Mr McLean’s physical and psychological injuries and disabilities resulted in him being unable to sustain employment in an open and competitive labour market, even at reduced hours. He has no residual earning capacity. The reality is that the injuries have rendered him unfit for any form of work on the open labour market for the reasons stated above.
Counsel for Mr McLean submitted that Mr McLean’s most likely occupation but for the motor accident would have been that of a labourer. I accept that Mr McLean was heading in that direction prior to the motor accident. The work was less stressful than the work he had undertaken in the hospitality industry. It was a job that he enjoyed. He had demonstrated the ability to perform the work despite his low level of education, his dyslexia and his pre-accident variable psychological state. I find that his complaints of aches and pains in his back shortly prior to the motor accident were consistent with the progression of work-hardening in a man who had not been involved in physical labour for quite some time.
I find that, on the balance of probabilities, Mr McLean’s most likely future circumstances but for the injuries and resultant restrictions caused by the motor accident, would have seen him continue as a casual trade assistant/labourer or work of a similar nature and then, after a period of work-hardening, progress to full-time work to earn the average full-time weekly earnings of an adult male in New South Wales.
Whilst I accept that Mr McLean was of the view that he was ready, willing and able to perform such work on a full-time basis at the time of the motor accident, the evidence is that he required further work-hardening and was struggling with interpersonal conflicts between himself, his father, his sister and his partner that would, on the balance of probabilities, have delayed his entry into full-time employment.
I assess Mr McLean’s entitlement to past loss of earnings from 30 December 2018 to 29 November 2022, based on my findings of his average weekly earnings at the BlueScope Steel facility of $504.84 and allowing 2% per annum increases as follows:
(a)   30 December 2018 to 30 June 2019:
26 weeks at $504.84 net per week:  $13,125.84
(b)   1 July 2019 to 30 June 2020:
52 weeks at $514.94 net per week:  $26,776.88
(c)   1 July 2020 to 30 June 2021:
52 weeks at $525.24 net per week:  $27,312.48
(d)   1 July 2021 to 30 June 2022:
52 weeks at $535.75 net per week:  $27,859.00
(e)   1 July 2022 to 29 November 2022:
22 weeks at $546.47 net per week:  $12,022.34
Accordingly, I assess Mr McLean’s entitlement to past loss of earnings at $107,096.54.
I assess Mr McLean’s entitlement to past superannuation entitlements from 30 December 2018 to 29 November 2022 on the total net loss of $107,096.54 x 11% at $11,780.62.
Accordingly, I assess Mr McLean’s entitlement to past loss of earnings, inclusive of superannuation, at $118,877.16.

Damages for future loss of earnings or loss of earning capacity

I find that Mr McLean’s most likely future circumstances but for the motor accident, would have seen him eventually transition to full-time employment, with Allmens or another employer by about now. Thereafter, he would have earned, at least, the average weekly full-time earnings of all adult males in New South Wales as published by the Australian Bureau of Statistics (ABS) from time to time.
The current ABS figure for the average weekly full-time total earnings of adult males in New South Wales is $1,971.30 gross per week, being $1,490 net per week.
I acknowledge the case law referred to in Zilio. In respect of the claim for future economic loss and loss of earning capacity, it is appropriate to take into account Mr McLean’s pre-accident and post-accident consumption of alcohol and use of cannabis that waxed and waned over the years, depending on the stressors in his life from time to time.
In Harrison v Melhelm,[137] one of the cases referred to in Zilio, the Court of Appeal held that the trial judge did not err in reducing the appellant’s earning capacity by 50% by reason of his drug use and that the reduction was within the range available to the trial judge. Further, the Court of Appeal found that there was no double counting when the trial judge further reduced the award by 15% for vicissitudes.
[137] Harrison v Melhelm [2008] NSWCA 67.
I find that Mr McLean had developed a serious and entrenched abuse of alcohol and cannabis from his mid-teenage years. The extent of such abuse waxed and waned. At present, his consumption of alcohol has reduced and he is on medical cannabis. However, on the balance of probabilities, his consumption of alcohol and use of cannabis will continue and it will wax and wane in response to stressors in his life. On the balance of probabilities, it will result in the significant loss of time from work in the future. In this regard, I assess the appropriate reduction in his earning capacity to be 50%.
I find the loss of Mr McLean’s earning capacity as a result of his motor accident related injuries and restrictions is currently $745 net per week after the deduction of 50% for the effects of alcohol and cannabis abuse on his future earning capacity from the ABS net weekly figure of $1,490. Such loss of earning capacity will continue until his retirement at the age of 67 years, that is, another 26 years.
I assess Mr McLean’s entitlement to future loss of earnings as follows:
$745 net per week x 768.7 (Multiplier for 26 years):          $572,681.50
less 15% for vicissitudes:  $ 85,902.23
total future loss of earnings:  $486,779.27
I assess Mr McLean’s loss of future superannuation entitlements as follows:
$486,779.27 future net loss of earnings x 14.53%: $70,729.03
I find that Mr McLean’s claim, under s 4.5(1)(b) of the MAI Act to recover the cost of travel with respect to future treatment has not been made out. Mr McLean claimed the global sum of $5,000 as being a reasonable amount to compensate him for the cost of travelling to and from future medical appointments and travelling to and from a pharmacy to purchase medication. There was not even a rough calculation as to how the lump sum amount of $5,000 was arrived at. Accordingly, I make no allowance for the claim under s 4.5(1)(b) of the MAI Act.
I assess Mr McLean’s entitlement to future loss of earnings, inclusive of superannuation, at $557,508.30.

ASSESSMENT OF DAMAGES SUMMARY

Under s 7.36(1)(b) of the MAI Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Non-economic loss:  $325,000.00
Economic losses
·Past loss of earnings (inclusive of superannuation):          $118,877.16
·Fox v Wood damages:  $306.00
·Future loss of earnings (inclusive of superannuation):      $557,508.30
·Interest:  $0.00
·Other:  $0.00
Total of economic losses and non-economic loss:                   $1,001,691.46
Total damages assessed:  $1,001,691.46
Mr McLean’s economic loss is to be reduced by, and NRMA is to have credit for, the following payments:
·Payments made under s 3.40(1)(b) of the MAI Act:             $52,906.50
·Advance payment:  $15,000.00

COSTS AND DISBURSEMENTS

I assess Mr McLean’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Regulation in accordance with the attached sheet.

CONCLUSION

On the issue of liability for the claim, the NRMA’s insured owed a duty of care to Mr McLean, breached that duty of care and Mr McLean sustained injury, loss and damage as a result of that breach of duty.
There was no contributory negligence on the part of Mr McLean.
Under ss 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $1,001,691.46.
The amount of Mr McLean’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act is $64,383.91 inclusive of GST.

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
(a)   Personal Injury Commission Act 2020;
(b) Personal Injury Commission Rules 2021;
(c)   the MAI Act;
(d)   the Regulation, and
(e) CLA.

[2022] NSWPIC 658

29 November 2022