Myint v Insurance Australia Limited t/as NRMA

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Myint v Insurance Australia Limited t/as NRMA [2023] NSWPIC 170
Claimant:	Kaloreear Myint
insurer:	Insurance Australia Limited t/as NRMA
Member:	Elizabeth Medland
DATE OF DECISION:	24 March 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; liability not in issue; claim for non-economic loss; past and future economic loss; claimant a young woman born in 2001 suffered serious injuries as a result of motor accident occurring on 31 December 2019; serious abdominal injury leading to surgery; left arm fracture and spinal injury; T12/L1 chance fracture; surgery to left humeral fracture including open reduction and internal fixation; surgery to spine via T12/L1 pedicle screw internal fixation and interbody fusion; main ongoing concern centred on spinal injury; claimant’s career aspirations centred on becoming an enrolled nurse, preferably with the Australian Armed Forces; claimant found to be a reliable witness; Held – insurer’s assertion that a buffer be awarded for future economic loss rejected; total of damages awarded is $1,004,157 plus costs of $79,746.70.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. The amount of damages for the claim is $1,004,157. The amount of the claimant’s costs in the matter is $79,746.70 inclusive of GST

STATEMENT OF REASONS

INTRODUCTION

Ms Kaloreear Myint (the claimant) is a 21-year-old woman (born in 2001) who suffered significant injuries as a result of a motor accident occurring on 31 December 2019.
The claimant was a back seat passenger in a vehicle travelling along Newell Highway near Dubbo. At the intersection with Boothenba Road, the insured vehicle proceeded through the intersection without giving way which caused a “T-bone” collision with the vehicle the claimant was travelling in.
The claimant suffered from a serious abdominal injury leading to emergency surgery, together with a left arm fracture and a serious spinal injury requiring surgery. The claimant’s main ongoing difficulties largely relate to her spinal injury. She reports no longer suffering symptoms related to her abdominal injury.
A claim for common law damages was lodged with the insurer. By way of notice dated 7 October 2021, the insurer admitted liability. Accordingly, the issue that remains is the amount of damages to which the claimant is entitled. The claim includes damages for non-economic loss, and past and future economic loss.
An assessment conference took place via AVL – Microsoft Teams on 1 March 2023. The claimant was the only individual who gave evidence. Some directions were made regarding the provision of particulars of the legal costs claimed. The additional information has now been received.
The extent of the claimant’s injuries are largely not in dispute. The main area of dispute lies with the claimant’s future earning capacity, with the parties essentially in agreement in respect of past economic loss. The claimant had just finished year 12 of her schooling at the time of the accident and had plans of pursuing a career as a registered nurse. The claimant’s motor accident related injuries have precluded the claimant from reaching her goal. There is also a large divergence as to the parties’ position on the amount of non-economic loss damages.

DOCUMENTS CONSIDERED

I have considered the documents provided in the application and the reply and any further information provided by the parties.

TREATING MEDICAL EVIDENCE

From the scene of the accident, the claimant was transported via ambulance to Dubbo Hospital. She stayed in Dubbo Hospital for a week and was then transferred to Westmead Hospital for management of a spinal fracture. She was ultimately discharged from hospital on 20 January 2020, three weeks after the accident.
The hospital records detail the claimant suffering an internal abdominal injury by way of a gastric antrum dehiscence from pylorus plus anterior duodenal tear at the D1/D2 junction. She underwent an emergency laparotomy and a gastro-jejunostomy.
A CT scan showed a transverse fracture in the midshaft of the left humerus with posterior displacement. Thoracolumbar X-rays revealed a T12/L1 chance fracture.
At Westmead Hospital, an MRI demonstrated bruising and oedema at the T12/L1 level together with a fracture line in the T12 vertebral body postero-inferiorly on the left and compressive contusion/microtrabecular fracture of the anterior aspect of T12 and L1 vertebral bodies adjacent to the disc. Also noted was a small amount of left-sided epidural haemorrhage at the L1 level and the ligamentum flavum at the T12/L1 appeared ruptured.
The claimant underwent an operation at Westmead Hospital with a T12/L1 pedicle screw internal fixation, interbody fusion.
The humeral fracture was addressed with an open reduction internal fixation via a posterior approach with an eight-hole plate and eight cortical screws.
Upon discharge, the claimant was placed under the care of her general practitioner (GP), at Star Medical Centre, Woodridge, a suburb of Brisbane.
The claimant’s injuries were subsequently managed with physiotherapy, however, such modality of treatment was interrupted by the COVID-19 pandemic.
The claimant was also referred to neurosurgeon, Dr Michael Coroneos in May 2020. It was subsequently found that there had been an incomplete fusion of the T12 fracture and there was compression of the left T12 nerve.
Due to Dr Coroneos apparently no longer practising the claimant then came under the care of neurosurgeon, Dr Richard Laherty in Greenslopes.
The claimant has not undergone any further surgical procedures. The claimant states that Dr Coroneos had provided the claimant with the option of removing the screws, however, she decided against such measure given that there were concerns that she could be rendered a paraplegic if she were to re-injure her back.
The claimant has also consulted Professor Gupta, orthopaedic specialist, in relation to the left arm injury. No recommendation for surgery has been made in respect of this injury.

MEDICO-LEGAL EVIDENCE

Claimant’s evidence

Orthopaedic surgeon, Dr Malcolm Wallace has provided a report to the claimant’s legal representatives dated 7 December 2022.
The claimant reported ongoing symptoms by way of mechanical back pain, exacerbated by bending, twisting, lifting, sitting or standing. In addition, the claimant reported continued swelling at the left humerus with activity and experiences aching at the fracture site.
Extensive scarring was noted at the left upper limb, thoracolumbar spine and abdomen. The claimant was noted to be self-conscious regarding the scarring.
In terms of future treatment, the doctor did not recommend any future surgery. He recommended ongoing psychological support and over the counter analgesics from time to time.
Dr Wallace opined that the claimant would have difficulty with employment either as an aged care worker or as a registered nurse due to ongoing back pain. He considered her suited to only supervisory or sedentary occupations in the future and the injuries are likely to force her into part-time or casual work.
The claimant’s legal representatives have also obtained a report of Dr Porteous, occupational physician dated 25 July 2022. She was assessed via videolink due to COVID-19 restrictions.
Dr Porteous noted the claimant’s difficulties pursuing her career goal of becoming a nurse. He noted that the claimant persisted with such plans after the accident, however, her back injury forced her to abandon them. He noted the claimant has been off work since early 2022 with significant ongoing spinal pain and occasional left arm pain.
In respect of future earning capacity, Dr Porteous stated his opinion that because of her restrictions from chronic pain, she is much more limited now than before the accident. He considered it unlikely, that at least in the short-to-medium term (but likely long term) she will not be able to pursue a career as a nurse. He considered it possible that the claimant could work part-time 12 to 16 hours a week spread out over the week as an assistant in nursing. In this regard, he noted she was not able to complete the practical component of such course, however, that was with constant eight hour shifts with five in a row.
However, Dr Porteous noted that to qualify the claimant would need to do full-time work and therefore unfortunately the claimant is unlikely to be able to pursue her nursing career.
It was also opined by Dr Porteous that the claimant’s ongoing physical restrictions will interfere with study. Accordingly, it is more likely than not that the claimant is going to end up less skilled due to the accident.
In terms of capacity, Dr Porteous stated the claimant could undertake light sedentary work that allowed variation in working, sitting or standing. He noted this would likely need to involve a flexible employer. In the job market, the claimant is going to be disadvantaged and “much less successful” with her ongoing pain and restriction and reduced capacity.
The claimant was examined by psychiatrist, Dr Chow, who provided a report to the claimant’s legal representatives dated 4 July 2022.
Dr Chow noted the claimant had been referred to a psychologist and she planned on seeing one in the next few months.
It is noted that the claimant returned to driving early on after the accident, however, after a few months she started having escalated anxiety on the road and she stopped driving altogether. She continues to have anxiety and panic attacks when the car brakes suddenly when a passenger.
She is described as having fluctuating low mood and anxiety. She has put on weight due to binge eating and has lost interest in hobbies. She lacks energy and motivation and feels hopeless as she cannot do the things that she loves.
In terms of the future the claimant is upset that she cannot pursue nursing and she is anxious and confused about what she can do in the future.
Dr Chow diagnosed the claimant as suffering from a persistent depressive disorder.
Dr Chow describes the claimant as having been focussing on her physical injuries early on and as such neglected to care for her psychological difficulties. This has led to a delay in her seeking psychological and psychiatric treatment. He recommends psychologist consultations for 6-12 months and if there is a lack of improvement, a referral to a psychiatrist should be made.
In terms of earning capacity, Dr Chow noted that the claimant’s prognosis will be dependent on further treatment. He considered the accident caused a disruption to her career plans and she is likely to have psychological difficulties and motivation to explore options and enter the workforce. Accordingly, he considered the claimant has at least a mild impairment in respect of earning capacity.

Insurer’s evidence

The insurer has obtained a report of Dr Machart dated 29 April 2022. The opinion of
Dr Machart does not diverge to any significant degree to that of Dr Wallace.
In terms of earning capacity, at the time of Dr Machart’s examination, the claimant was studying nursing. Dr Machart questioned the claimant’s capacity to pursue such career noting her chronic back pain and a permanent limitation on her capacity to lift. He recommended she avoid lifting anything over 15kg. He stated that other than that, the claimant was fit for full-time work.
In terms of treatment he recommended anti-inflammatories and analgesics and self-directed exercises, with initial instructions from an exercise physiologist or physiotherapist.
Dr Lingwood, occupational physician, provided a report to the insurer dated
14 November 2022.
In terms of ongoing difficulties, the claimant was noted to have significant ongoing lower back pain. The pain is improved with heat packs and lying down. Extended static postures and sitting and standing can exacerbate pain. She can sit for up to two hours at a time.
In respect of recommended workplace modifications, Dr Lingwood recommended varying postures between sitting and standing every one to two hours. Lifting restricted to 10kg on an occasional basis. In addition to avoidance of manual handling with twisting and bending and avoiding forceful, sustained or frequent lifting with the left upper extremity.
In respect of future earning capacity, Dr Lingwood opined the claimant would be fit for work without a restriction on work hours or length of work life, so long as the work suited the above restrictions.
The insurer has also obtained a report from consultant general surgeon, Dr McKee dated 2 January 2022. At the time of the examination the claimant was working as an assistant in nursing at Logan Hospital on a casual basis.
Dr McKee noted that the claimant is likely to be significantly restricted in regard to all lifting, shifting, pushing and pulling of patients. She would likely require the assistance of at least one other employee with any such tasks.
Dr Vickory, psychiatrist provided a report to the insurer dated 18 November 2022. In terms of diagnosis, Dr Vickory opined the claimant has a fear of driving. He did not consider the claimant suffers from a loss of earning capacity due to any psychological symptoms/condition. He did not recommend any psychological/psychiatric treatment.

Vocational Capacity Centre

The insurer has obtained a report from the Vocational Capacity Centre dated
20 December 2022.
The report notes that testing were indicative of the claimant suffering moderate levels of depression, normal anxiety and stress. The symptoms of low mood were noted to appear to be linked to the claimant’s lack of direction, and her belief that she can no longer pursue a nursing career.
Further testing indicated that the claimant’s general reasoning score was below average (34^th percentile). The scores indicate that the claimant is best suited to re-training that focuses of practical skills than that which requires verbal information. Overall, it was opined that any difficulties in completing assignments related to study is contingent on the claimant’s motivation and engagement with the study. It was stated that studies suggest that an average level of intelligence is sufficient for most university degrees and nursing is a practical profession in nature.
The author of the report, Mitch Jordan, psychologist, concluded that the claimant is not psychologically restricted regarding her work capacity. It was recommended that she recommence psychological treatment and engage in a graduated return to work to improve emotional resilience and improve baseline levels of anxiety and low mood.
Mr Jordan noted that physical restrictions were outside his expertise and referred to the opinion of Dr McKee. He noted that he did not have other independent medical opinions regarding ongoing and future work capacity.
It was concluded that the claimant could fulfil on a full-time basis roles such as: sales assistant, general clerk, call or contact centre operator or medical receptionist.
In addition, it was opined that if the claimant completed her nursing studies she could consider options as a registered nurse in less physically demanding areas such as: general medical practice, dermatology specialist, mental health, child and family health and community health.

ASSESSMENT OF DAMAGES

Non-economic loss

The insurer has conceded the claimant’s injuries exceed the 10% whole person impairment threshold for entitlement to non-economic loss damages. The insurer submits that an allowance of $200,000 is appropriate.
At the assessment conference, it was submitted on behalf of the insurer that the claimant had made a good recovery from her injuries and her only significant ongoing disability related to heavy lifting and some anxiety around driving.
The claimant makes a claim of $350,000 for non-economic loss damages. It is submitted that the claimant is young and is entitled to a substantial sum noting that she has another 65 years of pain and suffering to endure. Further, the claimant has been deprived of a normal pain free transition from teenager to young adulthood and has been unable to enjoy her sporting and social life.
I do not accept a proposition that the claimant has made a good recovery such that her only ongoing concerns relate to lifting and anxiety around driving.
The accident was significant. The injuries arising therefrom are significant. The accident occurred at a critical juncture in the claimant’s life, just before her launching from her schooling into adulthood and her long planned career path.
The claimant impressed me at the assessment conference as a very determined, considered and goal orientated individual. However, the severity of the accident and its aftermath is such that her very clear goals for her future are in tatters and she is left struggling to contemplate a way forward into the future. Whilst I have little doubt that following the resolution of her claim, and with some vocational assistance, she will be able to better make a way forward, there is no doubt that the claimant will suffer from the effects of the accident for the rest of her life.
The claimant has suffered a very serious spinal injury, with significant ongoing disabilities. She also has, to a lesser extent, ongoing symptoms related to her left arm injury. Whilst her abdominal injuries appeared to have now resolved, nonetheless the injuries were serious and caused significant pain, discomfort and disruption to her following the accident. In addition, the claimant has ongoing psychological symptoms, mainly centred on anxiety related to driving. The claimant impressed me as stoic, yet the disruption to her life from her fear of driving is significant.
Whilst the claimant was questioned at the assessment conference as to her attendance at the gym following the accident, I accept her very reasonable assertions that her efforts at the gym have related to an attempt to build strength in the context of her accident related injuries. I also accept the claimant’s evidence that whilst she may have attended the gym up to four times a week at one stage, eventually the gym activities adversely affected her back symptoms and she no longer participates in such activity. There may be a suggestion that the claimant has downplayed her activities since the accident, however, I consider the claimant to be an honest witness who gave the impression of being very careful to give truthful answers to questions. I do not consider there to be any issues of credit.
The claimant migrated to Australia at the age of five as a refugee. She currently lives with family members. She is able to complete domestic chores, although sometimes is unable to do heavier tasks due to pain. Prior to the accident, the claimant enjoyed playing volleyball. She has been precluded from such sport owing to the accident related injuries.
Having regard to the above matters, the claimant’s young age, the seriousness of the injuries, the loss of enjoyment of life and pain and suffering I award an amount of $325,000 for non-economic loss.

Past economic loss

Past economic loss is essentially agreed by the parties. In this regard, the claimant makes a claim of $731 net per week from the date of the accident. Such amount is based upon the claimant’s anticipated earnings in aged care working three shifts a week when studying a diploma in nursing and then a Bachelor in nursing. This claim is agreed to by the insurer. At the time of making written submissions, the claim amounted to $108,188 less amounts earned plus superannuation. That figure was calculated on the basis of 148 weeks. The time period up until assessment is now approximately 169 weeks.
Therefore, I award an amount of $68,561 (169 weeks x $731 = $123,539 less $54,978 in actual earnings). Plus, an amount of $7,199 in lost superannuation (10.5%).

Future economic loss

The claimant makes a claim on the basis that but for the accident, she would have become a registered nurse. Her career would have seen her as a nurse in the Army, as first preference, or otherwise in private practice.
The accident occurred not long after the claimant completed year 12 at Groves Christian College in Logan, Queensland.
She had applied to Southbank TAFE to study a Diploma of Nursing in September 2019 and had been accepted, with a commencement date of 15 January 2020. Of course, the accident occurred approximately two weeks prior to such date.
The course duration is 18 months and the claimant then held an intention to work in aged care whilst studying. The claimant states she intended to apply for such positions in mid January 2020 for three shifts a week. It is noted that the past economic loss claim is based upon this assumption.
Following completion of the Diploma of Nursing, it was then the intention of the claimant to commence a two year Bachelor of Nursing at QUT. Following completion, the claimant intended to join the Army to work as a registered nurse.
Due to the accident, the claimant deferred her Diploma of Nursing. The claimant commenced studying a Bachelor of Health Science at Griffith University online in mid 2020. However, the claimant withdrew from the three year degree at the end of September 2020 due to persistent back pain, exacerbated by long periods of sitting.
In February 2021 the claimant commenced a Diploma of Health Care at Griffith College. With some difficulties and cutting back of days, the claimant successfully completed the Diploma of Health Care in December 2021. She then commenced an intensive course ran through Griffith College, which she completed.
The claimant was employed with Logan Hospital from September 2020 until February 2022. She found the work difficult due to her injuries. In particular, she found it difficult showering patients, and found it hard to wash their feet due to the bending involved.
After resigning from Logan Hospital, the claimant then commenced a two week work placement at an aged care facility as part of her course requirements. The claimant found the work very hard on her back as she was working full days and was on her feet for large periods of time. On the seventh day of this work the claimant was in a lot of pain in her lower and thoracic regions of her back and as a result she withdrew from the work placement prior to completing it.
The claimant has not worked since February 2022. She does state that she applied for a position as a roster planner in August 2022, but was unsuccessful. She was subsequently offered an assistant in nursing position with the same company, Ram Care, however she did not accept the position owing to concerns she would not cope with the demands of the role due to her injuries.
A further employment opportunity was presented to the claimant when a friend advised of a position as a receptionist. The claimant considered the offer but declined it due to it being full time and the position requiring her to sit for long periods of time.
The claimant describes herself as “at a loss” in terms of what type of work she could now perform.
The claimant also takes issue with the report of Dr Vickory, where the doctor describes the claimant giving a history that her concentration span has always been short. The claimant states that she does not recall precisely what she told Dr Vickory, but rejects the suggestion that she had a short concentration span.
The claimant does not drive. She had been issued a learner’s permit at the time of the accident, however it has since expired and she now no longer has any present intentions to drive or progress to a provisional licence due to her fear of driving arising from the accident.
It is submitted that she would have completed her studies by the end of 2023, and after two years of clinic experience would have applied to join the Army as a nurse.
It is submitted that the accident related injuries have precluded the claimant from pursuing a career as a nurse. It is acknowledged that the claimant has a residual earning capacity. However, it is alleged that she has lost 70% of her earning capacity owing to the accident related injuries.
In making the claim for economic loss, the claimant relies upon a forensic accounting report of Michael Lee of Vincents Accountants.
With reference to the report of Vincents, the claimant makes a claim of $1,376,893 (scenario 1 discussed further below) discounted by 30% (reflecting a 70% loss of earning capacity) with a further deduction of 15% for vicissitudes. The total being $819,251 plus an amount of $141,253 for loss of superannuation.
The insurer sensibly concedes the claimant was not able to complete the practical component of her intended nursing studies due to her accident related physical injuries.
The insurer goes on to submit that the claimant’s psychiatric symptoms will continue to improve and do not pose as a barrier to employment. The insurer, however, accepts the claimant’s physical injuries come with restrictions in terms of employment. The insurer refers to the opinion of Dr Lingwood who set out a number of restrictions, as set out above.
The insurer submits that the claimant’s concession of a 30% residual earning capacity is unreasonably low, and does not properly reflect the balance of the available evidence as to residual earning capacity.
In submitting that the claimant retains the capacity for full-time employment in alternative roles, the insurer relies upon the report of Vocational Capacity Centre (VCC).
In particular, the insurer points out that Mr Jordan of the VCC opined the claimant as being presently capable of working in a full time capacity as a sales assistant, general clerk, call or contact centre operator or medical receptionist earning up to $918 net per week (market rate for age) as a general clerk.
The insurer submits that I would not be able to assess economic loss with any precision and a buffer award should be made. The insurer submits $150,000 as an appropriate allowance.
In respect of the report of Vincents, Mr Lee provides an assessment of economic loss based on two scenarios. Scenario 1 being that the claimant would have pursued a career in the Army as a nurse. Scenario 2 being that the claimant would have pursued a career as a registered nurse with Queensland Health. Scenario 1 results in a total economic loss of $1,614,293 inclusive of superannuation, and Scenario 2 results in a total economic loss of $1,635,775.
The totals are arrived at on a net basis and discounted by 5%. The calculations are made with an assumed retirement age of 60 years (compulsory retirement at the ADF) under scenario 1 and 67 years under scenario 2. No allowance is made for contingencies or vicissitudes. The assumptions upon which the conclusions are based, in terms of intended career path are essentially the same as what is set out above. Importantly, the figures are arrived at with an assumed nil residual earning capacity but with notional employment from 1 July 2023.
In accordance with s 4.7 of the Motor Accident Injuries Act 2017 (the MAI Act), I am to be satisfied that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
As set out above, the claimant’s economic loss claim is posed on the basis that but for the claimant, the claimant would have pursued a career in nursing, either in the Australian Defence Forces or as a registered nurse with Queensland Health or equivalent.
I have no difficulty in finding, on the evidence, that the claimant would have successfully pursued a career as a registered nurse. I am also satisfied that it is substantially more likely that the claimant would have been successful in pursuing such career through the ADF. In this regard, at the assessment conference the claimant was questioned on this issue by the insurer’s counsel. It was pointed out that there may be some difficulties in pursing such path, as mentioned in the Vincents report. The claimant was also questioned on the fact that pursuing such path would involve postings to different areas of the country, away from her family and friends.
I found the claimant’s responses to this line of questioning as honest and steadfast. I have no hesitation in accepting the claimant’s evidence that this was her clear goal and that she had both considered and accepted the various difficulties that lie on such path, including the postings to remote areas of the country.
In any event, it is noted that the ultimate calculations reached by Vincents on either scenario are very much similar.
As a result of the accident, I would describe the claimant as presently rudderless in terms of her future intentions with work. The claimant is to be commended for her very diligent efforts to follow her aspirations relatively soon after the accident, despite her serious injuries.
However, it is now clear that such efforts were perhaps too ambitious in both timing and abilities. I accept the claimant’s evidence that she gave at the assessment conference that she felt a pressure to pursue studies and career soon after the accident so as not to disappoint her family. However, the reality of the situation is that the claimant was simply not able to undertake what was required of her due to her injuries, as evidenced by her withdrawing from the work placement after seven days due to physical demands.
Due to a combination of disappointment from her unrewarded efforts post accident and her ongoing significant pain arising from a serious spinal injury, the claimant now lacks vision for the future.
Following the conclusion of the subject litigation and with some vocational guidance I find that the claimant will eventually be able to secure employment in a less physically demanding role. However, the claimant is clearly at a disadvantage on the open labour market due to the serious nature of her physical injuries.
Both Dr Lingwood and Dr Porteous accept the claimant’s injuries are such that she is left with restrictions on the type of work that she can carry out.
Whilst Dr Lingwood suggests the claimant could work in a full-time capacity,
Dr Porteous states that it is possible the claimant could carry out work in the nursing sphere on very reduced hours and spread out. Dr Porteous also notes that any future employment would likely need to involve a flexible employer.
Having considered the claimant’s own evidence in respect of her physical capabilities, I accept that it is unlikely that the claimant would be fit to partake in full-time employment on a permanent basis into the future. It may be that at periods of time the claimant would be able to sustain full time hours, I do not consider it realistic that she could maintain such hours with the required restrictions to her employment arrangements as set out by Dr Lingwood.
As such, I am satisfied that after a period with some professional vocational guidance the claimant will likely be fit for the type of work positions set out in the report of VCC, however, on a casual or part-time basis. This finding is based on acceptance of the claimant’s evidence that she experiences fluctuating levels of pain and restriction and at times she can sit for up to two hours but at other times she is more disabled.
In terms of an award for future economic loss, I accept the methodology of the claimant’s claim as set out in the written submissions. I do not accept that any award of economic loss should be a buffer, as submitted by the insurer, noting that I have accepted with a high level of probability the claimant’s most likely future circumstances but for the accident.
Whilst accepting the methodology of the claimant’s economic loss claim, I do not accept that the claimant’s residual earning capacity is only 30%. Instead, I consider a more realistic view of the claimant’s residual earning capacity is in the order of 55%.
Therefore, utilising the figure at Schedule D, page 30 of the Vincents report of $1,376,893, and allowing a 15% deduction for vicissitudes, I award an amount of $526,662 for future economic loss. In addition, I allow an amount of $76,735 for loss of superannuation (14.57% with a retirement age of 60).

COSTS AND DISBURSEMENTS

The insurer has indicated agreement to the claimant’s claim for costs. I have been provided with a schedule of disbursements. That schedule appears to be inclusive of GST. I have allowed report fees at the regulated amount rather than the claimed amounts that exceed same. I have also not allowed an amount claimed for “Law in Order” as no further information is provided and it does not fall within the Regulation.
The claimant claims four hours of conferences and I have allowed same, noting that the insurer agrees.
I assess the claimant’s legal costs and disbursements in accordance with the attached worksheet in the amount of $79,746.70.

Assessment of damages summary

I assess the claim as follows on the findings set out above:
·Non-economic loss  $325,000
·Past economic loss  $68,561
·Past superannuation  $7,199
·Future economic loss  $526,662
·Future superannuation  $76,735
·TOTAL  $999,157

CONCLUSION

In accordance with Division 7.6 of the MAI Act, the Personal Injury Commission’s assessment is:
· the amount of damages for the claim is $1,004,157, and
· the amount of the claimant’s costs in the matter is $79,746.70 inclusive of GST.

[2023] NSWPIC 170

24 March 2023